author:
BEATTY, Justice.
      MADDOX, Justice

text:
    WIXOM BROTHERS COMPANY v. TRUCK INSURANCE EXCHANGE.
    81-884.
    Supreme Court of Alabama.
    June 3, 1983.
    Rehearing Denied Aug. 5, 1983.

      Max Hudson of London, Yancey, Clark & Allen, Birmingham, for appellant.
    E. Martin Bloom and W. Michael Atchi-son of Starnes & Atchison, Birmingham, for appellee.
   BEATTY, Justice.

Insurer sought a declaratory judgment to determine its obligation to defend a pending action. This appeal ensued as a result of judgment in favor of the insurer. We reverse and remand.

This appeal necessitates a reexamination of an earlier decision of this Court, viz., Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., Inc., 295 Ala. 309, 329 So.2d 82 (1976). That case concerned a liability insurance policy whose insuring clause required the company to pay “all sums which the insured shall become legally obligated to pay ... caused by an occurrence.” An “occurrence” was defined in the policy as “an accident ... which results, during the policy period, in bodily injury or property damage.” (Emphasis added.) In Utica, which originated as a consolidated declaratory judgment action brought by the insurer, the trial court declared that the policy language was ambiguous (for reasons we need not discuss) and construed the policy in favor of the insured. On appeal of Utica, a majority of this Court reversed the trial court. Three of the justices, finding no ambiguity, voted to enforce the contract as written, thus finding that “coverage is afforded only when bodily injury, or damage to or loss of property is suffered during the policy period irrespective of when the negligent act was performed which later resulted in such bodily injury, or damage to or loss of property.” Two justices concurred in the result. That majority, however, obiter dictum, wrote disapprovingly of such policy language, suggesting that its harshness resulted in unfairness, and invited the Commissioner of Insurance to scrutinize policies containing that language with the view of possible withdrawal of approval of such policy forms. The majority’s disapprobation was made additionally manifest by the concluding paragraph of its opinion:

“If, in the future, the Commissioner of Insurance because of limitations of manpower and time is not able to cause filed forms of policies of insurance to be scrutinized under the standards set out in § 322 and in particular § 322(5) [now § 27-14-9(5)] this court may be compelled to declare the public policy of this State per the views expressed by Justice Jones and Shores in their dissent in this case.” 295 Ala. at 314, 329 So.2d 82.

Four of the justices dissented and, of those, two joined in a dissenting opinion. That opinion concurred in the majority’s position that no ambiguity existed in the policy. The two justices who joined in the written dissent would have affirmed the decision of the trial court on the ground, further discussed below, of an incongruity which resulted “in an anomaly which the public policy of this state cannot sanction.”

Essentially the same legal problem as existed in Utica is once again presented to this Court.

The present case was submitted to the trial court upon a stipulation which disclosed that on March 21,1972, Truck Insurance Exchange (Truck) issued a general liability insurance policy to Wixom Brothers Company (Wixom) which was effective until it was cancelled sometime in October 1974. Jack Dunn, one of the defendants in this action, was injured on May 4, 1978, while operating a motorcycle which had attached to it a fairing (a type of windshield) which was designed, manufactured, marketed and distributed by Wixom on June 19, 1974. Jack Dunn and his wife, Carolyn Faye Dunn, later brought suit against Wix-om and others on account on this accident. That suit alleged that Jack Dunn was injured while riding the motorcycle, and that he was injured as the proximate result of the negligence of Wixom and others in designing, inspecting, testing, etc., the motorcycle and the fairing. This declaratory judgment action was brought by Truck to determine its obligation to defend that pending action.

As the trial court perceived it, the issue was whether Dunn’s injury on May 4, 1978, which occurred three years and seven months after the policy had been cancelled, was within the coverage of the insurance policy. That policy, which provides general liability coverage, including products hazard and completed operations hazard insurance, contains an insuring clause agreeing:

“To pay all damages which the insured becomes legally obligated to pay because of
“(C) Bodily injury to any person,
“to which this insurance applies, caused by an occurrence.”

An “occurrence” is defined in the policy:

“(m) ‘Occurrence’ means an event, or series of events ... proximately caused by an act or omission of the insured, regardless of the number of persons, vehicles or objects affected by such act or omission which results, during the policy period, in bodily injury ... neither expected or intended from the standpoint of the insured.”

The trial court found that the policy language was clear and unambiguous, meaning that coverage was afforded “only when bodily injury is suffered during the policy period without regard to when the negligent or wrongful act was performed which later resulted in such bodily injury.” The trial court found additional support for its position in the policy language of the “Limits of Liability” provision:

“The limits of bodily injury liability ... are the total limits of the company’s liability for all damages arising out of the Products Hazard and Completed Operation Hazard during the twelve month period beginning with the effective date of such coverage provided the bodily injury occurs while the policy is in force.”

Having found the policy language clear, the court decided that California law controlled the merits inasmuch as the insurance contract was prepared, signed and issued in California. The trial court analyzed several California decisions which it found to favor the insurance company’s position. The trial court also observed, however, that Utica, supra, required the same result.

On this appeal Truck maintains that California law controls the issue. Wix-om does not disagree with that position insofar as any issue of clarity or ambiguity in policy terms is concerned. Wixom does insist, however, that the question of public policy, i.e., whether such language excluding liability when the incident giving rise to that liability occurred after the policy’s period of coverage is enforceable, is one for the court to decide notwithstanding California’s decisions on the meaning of the policy language. We agree with Wixom’s position. The public policy of the forum state may prevent enforcement of a contract valid at the place where made. See generally 16 Am.Jur.2d Conflict of Laws § 19 at 42 (1979).

The insuring clause in this policy provides that the company is to pay the damages “which the insured becomes legally obligated to pay ... because of ... bodily injury ... caused by an occurrence.” This language was considered in Utica, in which the dissent aptly observed that the insured “could not be ‘legally obligated to pay as damages’ any amount to either [claimant] until it breached some duty resulting in injury to them.” And the dissent continued by noting that “[a] cause of action did not accrue in favor of either [claimant] against [the insured] until each was actually injured. ... A right of action against the insured did not accrue until the injury actually occurred. [Citation omitted.] Therefore, the insured could not become legally obligated to pay before that time.”

The dissenting opinion continues:

“By virtue of the definition of ‘occurrence,’ Utica restricts its liability to ‘... an accident ... which results, during the policy period, in bodily injury or property damage.... ’ While Tuscaloosa Motor Company’s liability, by operation of law, runs to an injured party from the moment of injury to the running of the statute of limitations, the liability of Uti-ca to Tuscaloosa Motor Company extends only to injury-producing accidents occurring within the policy period.
“Thus, by contract Utica has limited its liability to its insured to a definable time limit unrelated to the length of exposure which the law imposes on Tuscaloosa Motor Company.
“Utica, therefore, stands absolved of the very liability to which its insured is exposed by operation of law notwithstanding the fact that the policy commits Utica to ‘pay on behalf of the insured all sums which the insured shall become legally obligated to pay.... ’
“Undoubtedly, it is this anomaly which prompted the trial court to conclude that the policy provisions created an ambiguity which it resolved in favor of the insured. We agree with Utica, however, that the policy provisions are clear as to their meaning and intent. A reading of the language of the policy leaves no uncertainty that Utica by contract has limited its risk of loss by definition of the term ‘occurrence’ to the extent set out above. It is not on the basis of ambiguity that we would affirm the trial court, but rather because the incongruity results in an anomaly which the public policy of this State cannot sanction.
“The provisions of this policy, although unambiguous, leave Tuscaloosa Motor Company without a remedy against Utica for the very liability it sought insurance to protect against. Likewise, it leaves the plaintiffs (Johnson and Nuchols) without the protection which Tuscaloosa Motor Company sought to provide through its insurance contract with Utica. This result offends the public policy of this State.” (Footnote omitted.)

The conclusions quoted above perforce apply to this situation and require no further amplification, except perhaps to quote additionally from the language of the dissenting opinion in Utica, 295 Ala. at 315, 329 So.2d 82:

“While the injury-producing accident must result directly from the culpable conduct of the insured, ordinarily such subsequent consequences lie beyond the insured’s immediate control as to time and place of occurrence. Thus, public policy favors contracts of insurance in such cases which [fix] the coverage concurrent with the time of the insured’s culpable conduct — making the insured’s and the insurer’s legal obligations coextensive.”

For the reasons stated, the public interest in this state would be injuriously affected in such a substantial manner by the enforcement of the coverage restriction exemplified by this insurance policy; the private right to contract in that manner, therefore, must yield to the public interest opposing such a restriction. Maddox v. Fuller, 233 Ala. 662, 173 So. 12 (1937). And the Utica decision should be no bar to the application of that principle to this case, even though this insurance policy was both issued and cancelled before the Utica decision was announced. That dictum does not bind us as precedent. Wilkinson v. Rowe, 266 Ala. 675, 98 So.2d 435 (1957). Accordingly, we reverse the judgment of the trial court and remand this case to that court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

JONES, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C.J., and MADDOX, FAULKNER and ADAMS, JJ., dissent.

MADDOX, Justice

(dissenting).

In Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., Inc., 295 Ala. 309, 329 So.2d 82 (1976), I concurred in the following statement:

“If, in the future, the Commissioner of Insurance, because of limitations of manpower and time, is not able to cause filed forms of policies of insurance to be scrutinized under the standards set out in § 322 and in particular § 322(5) this court may be compelled to declare the public policy of this State per the views expressed by Justices Jones and Shores in their dissent in this case.” (Emphasis added.)

I continue to be of the opinion expressed therein, but I cannot agree with the majority opinion that Utica should be overruled. The product allegedly causing the injury complained of was “designed, manufactured, marketed and distributed by Wixom on June 19, 1974,” which was before the date of this Court’s decision in Utica. In other words, the insurance policy sued upon was issued before the date of this Court’s decision. In fact, the policy was cancelled sometime in October, 1974. Having concurred in the statement in Utica that a similar policy provision was unambiguous, I cannot now say that it is ambiguous. Consequently, I must respectfully dissent, but I will again state that if the policy had been written after Utica, and after the Commissioner of Insurance had had an opportunity to act, then a different result could, and should be reached.

TORBERT, C.J., concurs.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex Parte JIM SKINNER FORD, INC., a Corporation and Ford Motor Credit Company, a Corporation. (In re: Stephen Elton TOLLISON v. JIM SKINNER FORD, INC., a corporation, and Ford Motor Credit Company, a corporation).
    82-370.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied July 22, 1983.

      Dennis G. Pantazis of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for petitioners.
    William J. Trussed of Church, Trussed & Robinson, Pell City, for respondent.
   BEATTY, Justice.

This is a petition for a writ of mandamus directed to the Honorable H.E. Holladay, Judge of the Circuit Court of St. Clair County. Petitioners seek dismissal or transfer of the action based on improper venue. The writ is denied.

This action began in August 1982 with the filing of a complaint by Stephen Elton Tollison against defendants (petitioners), Jim Skinner Ford, Inc., and Ford Motor Credit Company (FMCC). The relief sought was rescission of an installment sales contract and damages for fraud and breach of warranty. The petitioners filed a motion to dismiss on the ground that neither of them did business by agent in St. Clair County, making venue improper. It was stipulated that Jim Skinner Ford did not do business by agent in St. Clair County. However, the trial court found venue to be proper and denied the motion on the ground that FMCC did conduct business in the county.

It is clear that under Rule 82(c), Alabama Rules of Civil Procedure, the stipulation regarding Jim Skinner Ford has no effect on the proper resolution of the venue question if venue is proper as to the co-defendant, FMCC. Therefore, the sole question presented is whether the trial court’s determination was correct with respect to FMCC. The scope of our review of a venue determination by a writ of mandamus is to “determine whether judgment or discretion of the lower court has been abused and exercised in an arbitrary and capricious manner.” Ex Parte Wilson, 408 So.2d 94, 96 (Ala.1981).

Since FMCC is a foreign corporation, the applicable statute is Code of 1975, § 6-3-7, which provides in part: “A foreign corporation may be sued in any county in which it does business by agent....” From review of the record, it is clear that the trial court did not abuse its discretion in finding that FMCC did business by agent in St. Clair County. The following facts support this finding. The Pell City Lincoln-Mercury dealership in St. Clair County was one of the automobile dealerships in the state with which FMCC had an ongoing business relationship. This relationship consisted of FMCC’s financing the dealer’s floor plan inventory and purchasing from the dealer installment sales contracts. FMCC regularly sent its agents to St. Clair County for various purposes, including the furnishing of forms to the dealer, discussion of particular problems, repossession of cars from defaulting customers for delivery of those cars to the dealer, and checking the dealer’s inventory. The FMCC sales representative responsible for St. Clair County visited the Pell City dealer once or twice a month for these purposes, according to the testimony of FMCC’s collection supervisor for the Birmingham office. In addition, the owner of the Pell City dealership testified that he periodically attended training sessions held by FMCC in Birmingham and that FMCC agents came to Pell City to tram his employees in completing necessary paperwork.

With such evidence before it, the trial court could reasonably have found that PMCC did business in St. Clair County. That FMCC did not maintain an office in the county is not decisive, see Liberty Life Assurance Society v. Woodard, 219 Ala. 24, 121 So. 30 (1929). All that need be shown is that PMCC performed some of the business functions for which it was created in the county with some degree of regularity; “isolated transactions” in the past are inconclusive. Ex Parte Harrington Manufacturing Co., 414 So.2d 74 (Ala.1982). The activities performed by FMCC’s agents in the county were sufficiently regular and relevant to FMCC’s business to constitute doing business for purposes of the venue statute.

A writ of mandamus may not be granted unless there is a clear showing of error in the trial court to the injury of the petitioner, Ex Parte Harrington Manufacturing Co., supra. No such showing has been made. Accordingly, the writ of mandamus must be, and is, denied.

WRIT DENIED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.

      . Rule 82(c) provides: “Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13, 14, 22 and 24, as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties.” The limitation on this rule, that a foreign corporation may never be sued in a county where it does not do business, regardless of other defendants, Roland Pugh Mining Co. v. Smith, 388 So.2d 977 (Ala.1980), is not applicable here, because Jim Skinner Ford is not shown to be a foreign corporation.


author: JONES, Justice.

text:
    Danny Ray MYLAR a/k/a Danny Ray Miles v. J. Louis WILKINSON, Attorney at Law.
    82-479.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied July 29, 1983.

      Danny Ray Miles, pro se.
    J. Louis Wilkinson, Birmingham, pro se.
   JONES, Justice.

This is a pro se appeal by Appellant/Plaintiff Danny Ray Mylar, a/k/a Danny Ray Miles, against Appellee/Defend-ant J. Louis Wilkinson, in a case seeking damages for Wilkinson’s alleged malpractice in negligently representing Mylar in the appeal of his criminal conviction for murder. Mylar appeals the trial court’s order granting Wilkinson’s motion to dismiss the complaint for its failure to state a claim upon which relief can be granted.

We affirm.

FACTS

On March 22, 1976, Mylar was tried for first degree murder in the Bessemer Division of Jefferson County Circuit Court. At his trial, Mylar was represented by Wilkinson, his court-appointed counsel. On March 25, 1976, Mylar was found guilty by a jury and sentenced to life imprisonment. Subsequently, Wilkinson’s request that he be appointed as counsel for Mylar on appeal was granted. According to Mylar, on April 8, 1977, he was informed by the Clerk of the Court of Criminal Appeals that his conviction had been affirmed, and that Wilkinson, after timely filing a notice of appeal, had failed to submit a brief on his behalf concerning his appeal.

From April 1977 until April 1982, in both state and federal forums, Mylar initiated and pursued, on his own, actions for writs of error coram nobis and writs of habeas corpus. On April 1, 1982, the United States Court of Appeals for the Eleventh Circuit (Mylar v. State of Alabama, 671 F.2d 1299 (11th Cir.1982)) granted Mylar relief on the issue of Wilkinson’s ineffective counsel during the initial appeal of his conviction. The Court ordered that Mylar be allowed another appeal, or, in the alternative, be granted a new trial.

ISSUE

Stated simply, the issue for our consideration is the sufficiency, vel non, of Mylar’s pleadings so as to withstand a motion to dismiss. In other words, what should a criminal defendant, in these circumstances, be required to allege in order to state a valid claim for damages based upon the alleged malpractice of his court-appointed lawyer?

OPINION

In a well-drafted pro se brief seeking reversal of the order of dismissal, Mylar lays considerable stress upon the U.S. Court of Appeals opinion, which found specific acts of omission which, as a matter of law, rendered Wilkinson’s “assistance of counsel” ineffective. The argument is a persuasive one; but the validity of Mylar’s claim for relief in his criminal prosecution is not necessarily conclusive on his claim for civil damages. The test in the criminal case is one of fundamental due process, and the remedy for the failure to provide that is to afford the defendant a new trial. The civil damages action, however, is tested against traditional tort concepts: One who claims damages for negligence must allege and prove that the actionable wrong proximately caused the damages for which recompense is sought. Herston v. Whitesell, 374 So.2d 267 (Ala.1979).

A lawyer owes certain duties of care in the relationship with his or her client; and, in the performance of legal services for the client, a lawyer is required to exercise an ordinary and reasonable level of skill, knowledge, care, attention, and prudence common to members of the legal profession in the community. Newman v. Silver, 553 F.Supp. 485 (D.C.N.Y.1982). Mylar has alleged a cause of action for malpractice against Wilkinson, claiming that his services did not comply with this standard of care.

A claim for malpractice, however, also requires a showing that the client’s injury was caused by the lawyer’s malpractice. Tasby v. Peek, 396 F.Supp. 952 (D.C.Ark.1975). This requires a showing that the result would have been different in the underlying action had his lawyer not been guilty of malpractice. Tasby, supra. Mylar has not established through his pleadings that he could have received a better result had Wilkinson acted differently; therefore, he cannot recover on his malpractice claim.

Plaintiff’s statement of the claim is devoid of any averment that, apart from the lawyer’s negligence, he would have obtained a more favorable result in his criminal prosecution. Furthermore, it is worthy of note that the professional malpractice claimed relates solely to Wilkinson’s inaction during the pendency of Mylar’s appeal before the Court of Criminal Appeals. Judge Harris, writing for that court pursuant to the “search the record” rule, thoroughly treated every issue raised during trial. Miles v. State, 343 So.2d 801 (Ala.Cr. App.1977), cert. denied, 343 So.2d 806 (Ala.1977).

AFFIRMED.

TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.

      . That case is now pending before the United States Supreme Court on the State’s petition for writ of certiorari.

      . For a more recent announcement of the standard for evaluating a claim of ineffective assistance of counsel in a capital case (there, involving the sentencing phase of the trial), see Washington v. Strickland, 693 F.2d 1243 (11th Cir.1982).


author: PER CURIAM.

text:
    Ex parte Julius A. RUSSELL. (Re Julius Russell v. State of Alabama)
    82-742.
    Supreme Court of Alabama.
    July 1, 1983.
    George W. Cameron, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Writ denied. The petitioner fails to show wherein the notice of revocation of his parole was deficient. Therefore, the petition presents nothing for us to review.

WRIT DENIED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Ex parte Richard MADDOX. Re Ex parte Richard Maddox, petition for writ of habeas corpus and application for bail).
    82-721.
    Supreme Court of Alabama.
    July 7, 1983.
    Russel T. McDonald and Roger A. Brown, Birmingham, and John L. Capell, III of Capell, Howard, Knabe & Cobbs, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

The order of the Court of Criminal Appeals, 434 So.2d 874, denying bail to petitioner Richard Maddox is hereby reversed and set aside and this case is remanded to that court for it to set bail for petitioner’s release from jail, on the authority of Ex parte Jones [Ms. 82-880, July 1, 1983] (Ala.1983).

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

FAULKNER, J., not sitting.


author: EMBRY, Justice. TORBERT, Chief Justice ADAMS, Justice

text:
    Willie James LEE and Annie Mae Lee v. James JEFFERSON.
    81-659.
    Supreme Court of Alabama.
    July 8, 1983.

      E. Terry Brown of Copeland, Franco, Screws & Gill, Montgomery, for appellants.
    Charles Price, Montgomery, for appellee.
   EMBRY, Justice.

Willie James Lee and Annie Mae Lee brought a statutory action in the nature of ejectment against James Jefferson to recover possession of the following described property, to-wit:

“The Northeast Quarter (NE ¼ of the Southeast Quarter (SE ⅛) of Section 32, Township 15 North, Range 17 East, Montgomery County, Alabama, less and except the following property deeded to James Jefferson:
“Commence at the NW corner of the NE ¼ of the SE ¼ of Section 32, Township 15 N, Range 17 E. Thence east a distance of 274.0 feet to the ‘point of beginning,’ thence south a distance of 100.0 feet; thence west a distance of 100.0 feet; thence north a distance of 100.0 feet back to the ‘point of beginning.’ ”

In the same action, the Lees stated a second claim against Jefferson for trespass and sought a permanent injunction against him regarding the latter. The Lees appeal from an adverse judgment as to both. We need consider only the ejectment aspect of this appeal in order to dispose of it.

In prior litigation, James Jefferson was awarded the following described property by judgment of 14 May 1980:

“It is further ORDERED, ADJUDGED AND DECREED by the Court that the property described as follows:
To reach the point of beginning, begin at the Northwest corner of the Northeast Quarter of the Southeast Quarter of Section 32, Township 15 North, Range 17 East, thence East along the North line of said Northeast Quarter of said Southeast Quarter a distance of 274 feet, more or less, and from point of beginning, continue East along said line a distance of 100 feet, thence south 100 feet to a point, thence West 100 feet to a point, thence North to the point of beginning. Said property fronting 100 feet on Henderson Road, which runs East and West along the North line of said Northeast Quarter of the southeast Quarter of Section 32, Township 15 North, Range 17 East,
be and here is set aside to Defendant James Jefferson upon the payment of $375.00 and the Clerk is to execute a deed conveying the interest of all the parties hereto to James Jefferson.”

The action we deal with in this opinion was filed by the Lees on 19 December 1980, tried, and the judgment that followed was entered on 4 March 1982:

“This matter having come before the Court on Plaintiff’s Complaint, inter alia, to recover certain property and the Court after considering the testimony and evidence aduced at trial, is of the opinion and so finds that the defendant is the lawful owner of the following property:
“To reach the point of beginning as described in a warranty deed recorded in Real Property Rook 295 Page 350 in the office of The Judge of Probate, Montgomery County, Alabama, commence at the northwest corner of the northeast quarter of the southeast quarter of section 32, TI5N, R17E, Montgomery, County, Alabama; thence run east along the North line of said northeast quarter of said southeast quarter a distance of 274 feet more or less to the point of beginning; said point of beginning being an iron marker on the south side of Henderson (McLean) Road; thence continue along said quarter — quarter line, S 86° 30' E, 99.9 feet to an iron marker; thence S 16° 55' W, 100.20 feet to an iron marker; thence N 86° 30' W, 99.9 feet to an iron marker; thence N 16° 55' E, 100.0 feet to the point of beginning.
“Said property lying in a portion of the Northeast quarter of the southeast quarter of section 32, T15N, R17 E, Montgomery County, Alabama and contains 0.223 acres more or less.
“The Clerk of the Court is instructed to prepare and issue a deed conveying to the defendant title to the above described property.”

As is patent from the description in the 4 March 1982 judgment, Jefferson was awarded a parcel of land other than that awarded him by the judgment of 14 May 1980, apparently applying equitable principles in this statutory ejectment action. This was error.

In this case the trial court empaneled an advisory jury while reserving the legal issues for its own determination. That jury, by an 8-4 margin, advised that Jefferson should be awarded the property encroached upon by the Lees and that he should be permitted to keep all improvements then situated on it.

In Alabama, ejectment is a favored action for the trial of title to land. Kelley v. Mashburn, 286 Ala. 7, 236 So.2d 326 (1970). This case, a statutory action in the nature of ejectment, § 6-6-280(b), Code 1975, is mixed, in that it is in rem as to title and in personam insofar as damages sought for detention. Such action clearly calls for a legal determination, not an equitable one. Mid-State Homes, Inc. v. Butler, 287 Ala. 584, 253 So.2d 511 (1971); Lyons v. Taylor, 231 Ala. 600, 166 So. 15 (1936). More precisely, if the plaintiff shows a superior legal title, absent any legal defenses, he must recover without regard to any equities between the parties. Blair v. Blair, 199 Ala. 480, 74 So. 947 (1917).

The overwhelming weight of the evidence in this case shows that the Lees hold superi- or title to the property in issue. On numerous occasions during the course of discovery, and later at trial, Jefferson admitted he owned only the specific 100 X 100 foot parcel of property awarded him by the judgment of 14 May 1980. Also undisputed is the fact the Lees owned the remaining portion of the 40-acre tract less and except the 100 X 100 foot lot owned by Jefferson.

The only question for the trier of fact in this case, regarding the ejectment issue, is whether Jefferson encroached upon any portion of property to which the Lees hold legal title.

Both parties introduced surveys which purport to indicate what property is owned by Jefferson. James B. Hunt, a licensed land surveyor with almost 25 years’ experience, testified for plaintiffs. He prepared a plat of a survey that was introduced into evidence. It showed that some of the property occupied by Jefferson extended beyond the 100 X 100 foot lot deeded as a result of the 14 May 1980 judgment and encroached upon the Lees’ property. Hunt further testified that in preparing the survey he followed the same legal description as set out in the 14 May 1980 judgment. Derrell Strickland, a civil engineer, testified on behalf of Jefferson. Strickland testified that he prepared a plat of a survey from information given to him by a field survey crew under his supervision, which plat located Jefferson’s house on the lot shown by his plat. It showed that Jefferson’s property did not encroach upon the Lees’ property. However, Strickland admitted his survey did not purport to represent or follow the legal description set out in the 14 May 1980 judgment.

It is evident from the record that the trial court, in awarding Jefferson the property described in Strickland’s plat, was simply making an equitable determination. As noted before, this was error. Moreover, no equitable issues were affirmatively asserted by Jefferson in this case, nor did he claim he owned any property other than the 100 X 100 foot lot awarded him by the 14 May 1980 judgment. Furthermore, the trial court erroneously instructed the advisory jury regarding the law on the ejectment issue.

Because there is conflicting evidence in the record, as to whether Jefferson now occupies that land contained within the legal description set out in the 1980 judgment, this court cannot decide as a matter of law that the Lees should prevail on their ejectment claim. Because of the trial court’s erroneous determination regarding the ejectment claim, the issues of trespass and damages were never properly resolved.

Therefore, we conclude that the judgment below is against the great weight of the evidence and must be and is hereby reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER and ALMON, JJ., concur,

TORBERT, C.J., and ADAMS, J., concur specially,

APPENDIX A

APPENDIX B

TORBERT, Chief Justice

(concurring specially).

I am in agreement with the majority opinion. I write separately to make some clarifying comments.

Lee claims title to a 40-acre tract of land, except for a 100 X 100-foot lot therein. Lee filed a suit in ejectment against Jefferson, the owner of the small lot. Jefferson’s lot was the subject of previous litigation and had been described in the prior judgment.

It is clear that the lot owned by Jefferson as a result of the prior litigation is a square lot. The order of the trial court described the Jefferson lot as a parallelogram, which, having a common northeast corner, would necessarily encroach upon the property of the Lees. See appendix B. Accordingly, since this is an ejectment action, the trial court clearly erred in not recognizing the obvious encroachment.

ADAMS, Justice

(concurring specially).

Although the advisory jury concluded that James Jefferson was entitled to the 100 X 100-foot piece of property surrounding his house, the one described in the judgment is a different 100 X 100-foot piece of property from that awarded him in the Doc Lamb Litigation. In order to reach this conclusion, the advisory jury must have, of necessity, applied equitable principles. In an ejectment suit, the plaintiff must win if he shows a superior legal title, without regard to any equities between the parties. Mid-State Homes, Inc. v. Butler, 287 Ala. 584, 253 So.2d 511 (1971); Mid-State Homes, Inc. v. Brown, 47 Ala.App. 468, 256 So.2d 894 (1971); and Blair v. Blair, 199 Ala. 480, 74 So. 947 (1917).

      . See appendix for plats of the properties described in this opinion.


author: MADDOX, Justice.

text:
    Clyde H. RYAN v. John D. ACUFF.
    82-90.
    Supreme Court of Alabama.
    July 22, 1983.

      Aubrey O. Lammons of Lammons, Bell & Sneed, Huntsville, for appellant.
    E. Cutter Hughes, Jr. and M.H. Lanier of Lanier, Shaver & Herring, Huntsville, for appellee.
   MADDOX, Justice.

The only issues on this appeal involve evidentiary rulings made by the trial judge in a suit for breach of an oral agreement to form a joint venture to develop land.

Around the first part of 1980, the plaintiff/appellant Clyde Ryan, a building contractor, and the defendant/appellee John Acuff, began discussions about the possibility of forming a joint venture to develop parcels of land owned by the parties. Acuff owned approximately seventy-seven acres and Ryan approximately four acres of land. The property was contiguous and had no mortgages or other encumbrances.

Ryan testified that he had built over one hundred residential buildings and one commercial building in Huntsville, and that these projects had been financed through Towne Realty, Inc., which was principally owned by him. Acuff was a retired banker who had also previously developed property.

An engineering firm was hired to do preliminary work on the proposed subdivision; the parties contributed equally to all expenses incurred in these engineering studies. Ryan met with the chairman of the City Planning Commission on several occasions to discuss the possibility of the development, and also met with a local banker to discuss financing. There were at least three meetings between the parties to discuss the possible joint venture, but there was conflict in the testimony as to who had made the initial offers to form the joint venture. Ryan had his attorney draft at least three written proposals for the joint venture, and although Ryan signed one of the proposed agreements, Acuff refused to sign any. At a meeting between Ryan and Acuff attended by attorneys for the parties, Acuffs attorney recommended that Acuff not enter into the venture because of financing problems, Acuff’s antipathy to mortgaging his property, and the disparity of assets each party was to convey to the venture.

The written proposal signed by Ryan would have required each party to convey his property to a corporation owned by Ryan. In return each party would receive an equal number of shares of corporate stock and a mortgage from the corporation. No decision had been reached as to how the venture was to be financed, how approval would be gained from the appropriate city agencies, nor how access would be obtained, as the property was landlocked. Ryan had orally made the agreement contingent on access. No deeds or mortgages were ever drawn on the property, nor were descriptions attached to the proposal which was signed by Ryan only.

During this same period the joint venture was being discussed, Acuff was rebuilding a commercial building, which had burned, on a lot not connected with the property described above. The building was to be rented by the previous tenant, Firestone, Inc., which had provided plans for the building. Ryan unquestionably aided in the construction of this building, but there was conflict in the testimony regarding Ryan’s participation in this project, and its connection with the alleged joint venture. Ryan claimed he had agreed to act as contractor for a “consulting fee” and expenses. The fee was for $2,000 which Ryan claimed was far below what his services were worth. No testimony was admitted as to the actual wbrth of these services. According to Ryan, this work was completed as a part of the overall joint venture agreement, but Acuff disputed this and testified there was no connection between the two developments, that Ryan was only a “helper” and the $2,000 paid Ryan was payment in full for his services. Acuff introduced two checks endorsed by Ryan which totaled $2,000 with a notation “paid in full” for services on Firestone building on the second check. Acuff also introduced a building permit on the building which had been obtained by another contractor. Acuff also offered depositional testimony of Ryan’s attorney that the construction of the commercial building was not contingent on the joint venture.

Ryan originally sued for specific performance of a joint venture agreement and breach of a joint venture agreement and claimed damages for “loss of prospective profits.” He repeatedly amended his complaint and at one time it contained seven separate counts. At trial, however, the case was tried before a jury on three counts; one for fraud and deceit, one for work and labor done, and one for breach of a joint venture agreement with damages sought for “loss of prospective profits.” The joint venture count did not include Ryan’s work on the commercial building. At the close of the evidence, Ryan amended his breach of contract claim and prayed for $35,000 in damages for work and labor done in furtherance of an oral joint venture agreement. The trial court, on motion, directed verdicts for Acuff on the fraud and deceit count and on the work and labor done count. On appeal, Ryan does not raise any of these issues regarding those rulings.

The plaintiff’s case was submitted to the jury on the question of whether there had existed an oral contract between the parties to form a joint venture to develop land. The jury found for the defendant Acuff.

On appeal, Ryan claims the trial judge erroneously admitted evidence which was prejudicial to his case; we address these evidentiary issues only.

I

We first address the question of the admissibility of the income tax returns of Towne Realty, Inc., which was not a party to the suit. On direct examination, Ryan introduced evidence of the cost of developing the property, and on cross-examination, testified the cost of development would be $1,300,000. He was then asked whether he personally could contribute a similar amount to the venture and answered in the negative. He was then asked if the money was available through his corporation and he answered: “I don’t know, I don’t have my tax records.” No objection was made to these questions by counsel for Ryan. Later in the cross-examination of Ryan, Acuff’s counsel offered the previous three years’ tax returns of Towne Realty, Inc. into evidence. Counsel for Ryan objected to the admission of the income tax returns on the ground that .the evidence was irrelevant because Towne Realty, Inc. was not a party. The trial judge overruled the objection. Acuff also offered into evidence the personal tax returns of Ryan for the same years, and they were admitted without objection.

On appeal, Ryan argues that admission of the tax returns for Towne Realty, Inc. was error. On the one hand, he argues that Towne Realty, Inc. was not a party to the litigation or even remotely involved; he claims that the evidence was inadmissible on this ground. On the other hand, he argues the admission of the evidence was error because the financial condition of the parties is not material, and the admission of Towne Realty’s income tax return constituted an admission of his financial condition.

Acuff argues the records were material because his primary reason for not entering into an agreement with Ryan was Ryan’s financial condition, and that Ryan had made his financial condition material on the question of whether there was an oral agreement to form a joint venture; therefore, argues Acuff, Ryan’s financial condition was probative of whether there' was even a possibility of an agreement. We find no prejudicial error in the admission of these returns. Trial judges have wide discretion to exclude or admit evidence even of minor probative value on issues litigated in the cases. The test is that the evidence must only shed light on the main inquiry, and not withdraw attention from the main inquiry. Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968); see also, C. Gamble, McElroy’s Alabama Evidence § 21.01(6) (3rd Ed.1977).

Here, there was evidence that Ryan was the alter ego of the corporation, Towne Realty, Inc., and that Ryan’s career as a builder in Huntsville had been conducted through the corporation, and it would have been through the corporation that financing would have been obtained for the development. Ryan’s capability to perform the proposed joint venture was an issue at trial, particularly his ability to get financial backing.

We also note that a number of communications made between Ryan and Acuff involved Towne Realty. The cost estimate was prepared in the name of Towne Realty; two expense checks for “preliminary” work were drawn on Towne Realty’s account, and the letter written by Ryan to Acuff terminating their business relationship was done in the name of Towne Realty. There was also evidence that the last joint venture engaged in by Ryan was carried out in the name of Towne Realty. As we view the evidence, the trial court could have concluded that the thrust of the testimony complained of, the admission of Towne Realty’s income tax returns, was not to show Ryan’s wealth to prejudice the jury against him, but to show Ryan’s lack of wealth and, therefore, his inability to obtain financing for large tracts of land.

We are familiar, of course, with the general rule that the financial status of parties involved in litigation is immaterial, Miller v. Dacovich, 355 So.2d 1109 (Ala.1978); Barnes v. Sand Mountain Electric Coop., 40 Ala. App. 88, 108 So.2d 378, cert. denied, 268 Ala. 698, 108 So.2d 382 (1958); City National Bank v. Nelson, 214 Ala. 297, 107 So. 849 (1926), but in this case, we do not find the trial judge erred in reversal, because Ryan’s financial ability to carry out the alleged joint venture was one of the issues litigated.

II

Ryan argues that the trial judge, although he allowed a witness to be qualified as an expert, nevertheless refused to permit the expert to testify regarding the reasonable value of the services Ryan performed in connection with the so-called Firestone building. Ryan correctly cites to us the rule of law regarding the admissibility of expert testimony, but we hold that those rules are inapplicable to this case. In the first place, the proffered evidence related to the Firestone building, and there was no question asked the expert concerning any aspect of the alleged joint venture. All claims relating to work on the Firestone building were deleted before they were submitted to the jury, either by voluntary withdrawal by Ryan or by directed verdict on the part of the court. Consequently, the jury did not have any issue relating to the Firestone building before it. Even though Ryan has cited to us correct principles of law concerning expert testimony, he has failed to show that the rulings of the trial court were prejudicial in this case.

III

Ryan next argues that it was error for the trial court to refuse to allow him to testify as to the reasonable value of the services he performed on the Firestone building. Ryan argues, in brief:

“Having been denied the testimony of an expert witness, Ryan attempted to establish the value of his service by direct testimony. Counsel for Ryan recalled Ryan to the stand and put the following question to him:
“_Mr. Ryan, I ask you, do you have any opinion as to the reasonable value, on an hourly charge basis, of the services you performed in rebuilding the Firestone Building and in doing the land development work that you have testified to.”

Again, Ryan correctly cites to us the law that a person who performs services for another is competent to testify as to the reasonable value of his own services after they have been described with reasonable particularity. In this case, however, we find no prejudicial error resulting when Ryan was not permitted to testify concerning the “reasonable value, on an hourly charge basis, of the services [he] performed in rebuilding the Firestone Building,” in view of the evidence that Ryan accepted $2,000 as the amount of compensation due him for the work he performed. Under the facts of this case, we fail to find that the trial judge’s action was prejudicial. Rule 45, Ala.R.App.P. There was no testimony that Acuff agreed to pay for Ryan’s preliminary efforts in connection with the alleged joint venture, and as we have held regarding the expert's testimony, Ryan's proposed testimony regarding any work done by him on the Firestone building is not an issue on this appeal.

IV

Ryan’s last argument is that it was error to admit evidence of a contradiction, on Ryan’s part, because the evidence pertained to a prior immaterial matter. Ryan testified that he had been successful in the past as a builder, that Acuff took the initiative in proposing the joint venture, and that he had never in the past had an attorney prepare joint venture proposals. Acuff called as a witness Linda Edwards Hamlett to prove that Ryan had previously initiated joint venture proposals. After Hamlett had testified that she had entered into a joint venture with Ryan, counsel for Ryan objected to the admission of any prior joint ventures between Ryan and any third parties as being immaterial. The trial judge sustained the objection. Counsel for Acuff then asked Hamlett if “... during any prior joint ventures you had with Mr. Ryan, did he bring proposed joint venture contracts for your signature”? Counsel for Ryan objected on materiality grounds. Counsel for Acuff stated he was offering the evidence for impeachment purposes and the trial judge held the evidence was admissible. Counsel for Acuff then attempted to have admitted into evidence a written proposal purportedly drafted by Ryan’s attorney for a joint venture with Hamlett. Counsel for Ryan objected, saying: “The fact that he [Ryan] brought them [proposals] in is what he [counsel for Acuff] is trying to get in, and that’s fine, but the document itself is irrelevant.” (Emphasis added.) The document was not admitted, but the trial judge allowed Acuff’s attorney to ask questions about prior proposals by Ryan to Hamlett, and she testified that Ryan had actively pursued a joint venture by bringing draft proposals to her, that she never signed those agreements, that she and Ryan had entered into an oral agreement to build and sell two houses, and that the venture had been financially unsuccessful. Counsel for Ryan cross-examined Hamlett and she testified that Ryan had sued her on the venture and had won a verdict of $500.

We hold the testimony of Hamlett was material to issues in the case. Ryan attempted throughout the trial to portray the joint venture as a plan initiated by Acuff despite his reluctance. Ryan testified, and his attorney argued, that Acuff actively sought to persuade Ryan to engage in the joint venture, and then refused to consummate the transaction after Ryan had expended considerable time and effort in furtherance of the joint venture. The thrust of the testimony and argument was that Ryan possessed experience and expertise which Acuff needed to develop his (Acuff’s) lands and that Acuff “tricked” Ryan into performing services for Acuff to the exclusion of other construction efforts in which Ryan would otherwise have been engaged.

Ryan, in fact, testified that Acuff made an initial “joint venture” offer to him which he (Ryan) declined. Ryan further testified that Acuff, “within a matter of days,” made a second proposal, which Ryan also declined. Ryan testified that Acuff made him yet a third offer, which Ryan accepted. He further testified “I never approached him once” and that all the initiative was on Acuff’s part. Ryan even testified that he never even made a counter-proposal during the repeated proposals from Ryan.

The thrust of Ryan’s testimony was that he was not particularly interested in participating in a joint venture until actively persuaded by Acuff to do so, that his wide experience in the construction business and his expertise was valuable to Acuff, and that Acuff used persuasion (and perhaps artifice) to enlist his aid in the project.

Acuff, on the other hand, consistently testified that he was never interested in mortgaging his property, particularly at 81 years of age. He testified that Ryan was simply a “helper” on the Firestone building project and that Ryan initiated all discussions concerning any joint venture. The thrust of Acuff’s position was that Ryan was a “promoter” who actively sought access to the Acuff property, which could potentially yield him a profit of $2,895,360, and that Ryan had never been successful in developing his own much smaller acreage, and he saw a great opportunity to make money by jointly developing the far more valuable Acuff lands.

With such a stark discrepancy between the Ryan version of events and the version presented by Acuff, Acuff was certainly entitled to cross-examine Ryan closely on matters which would test his credibility on such critical issues as (1) who actually initiated the joint venture proposal, (2) who stood to gain and who stood to lose by the proposal, (3) the feasibility of the proposed joint venture, (4) the true nature of any “expertise” of Ryan, (5) the past history of Ryan in construction, (6) the past history of Ryan in joint ventures, (7) who had represented Ryan in past joint ventures, and (8) the financial ability of Ryan to participate in a joint venture of the magnitude he proposed. We hold that the questions asked Ryan on cross-examination, and the impeachment evidence offered to contradict the answers given by Ryan, were not immaterial but were very pertinent to the above issues.

Questions of materiality, relevancy, and remoteness rest largely with the trial judge, and his rulings must not be disturbed unless his discretion has been grossly abused. Dorcal, Inc. v. Xerox Corp., 398 So.2d 665 (Ala.1981); Costarides v. Miller, 374 So.2d 1335 (Ala.1979). We hold the trial judge did not abuse this discretion.

Because we affirm the judgment, we have not addressed the question of whether the oral joint venture agreement sued upon violated the statute of frauds. The appel-lee raised the statute of frauds in his answer, at trial, and on appeal. We do note that an oral joint venture agreement to develop land wherein property is to be conveyed comes within the bar of the statute of frauds. Code 1975, § 8-9-2, Wilson v. Southside Shopping Center, Inc., 280 Ala. 615, 197 So.2d 267 (1967), but since we affirm the judgment on other grounds, we do not consider a discussion of the issue necessary.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    Jerry Don HOLDBROOKS v. CENTRAL BANK OF ALABAMA, N.A.
    82-153.
    Supreme Court of Alabama.
    July 22, 1983.

      Norman Roby, Decatur, for appellant.
    Jasper P. Juliano of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee.
   SHORES, Justice.

The plaintiff, Jerry Don Holdbrooks, appeals from a summary judgment granted on motion of the defendant, Central Bank of Alabama, N.A. (Central Bank), in an action for libel.

Holdbrooks had executed a personal guaranty on a note representing an indebtedness owed to Central Bank by Southern Heritage Furniture Company (Southern Heritage) of which Holdbrooks was president. The loan ultimately went into default, and foreclosure proceedings were instituted against the corporate debtor and the personal guarantors. Prior to filing an action seeking foreclosure, Central Bank issued a routine credit report to the Haley-ville Credit Bureau. The report was received by the credit bureau on August 28, 1979, and indicated that Holdbrooks, doing business as Southern Heritage, was in default, and the bank was seeking foreclosure. Holdbrooks alleges that he first discovered the “false” statements in the credit report in January of 1981. He does not dispute the fact that foreclosure actually took place.

On March 23, 1981, Holdbrooks and his wife filed suit against Central Bank, alleging that the statements in the credit report constituted libel, and they had been denied credit and had lost business opportunities, among other damages, as a direct result thereof. Mrs. Holdbrooks’s claim was dismissed with prejudice. The trial court granted Central Bank’s motion for summary judgment against appellant Holdbrooks on the grounds that the suit was barred by the statute of limitations. We affirm.

Generally, an action for libel must be commenced within one year from the date of publication of the alleged libel, which in this case was August 28, 1979. Ala.Code 1975, § 6-2-39(a)(4); Harris v. Winter, 379 So.2d 588 (Ala.1980).

Holdbrooks contends that he is entitled to the benefit of the discovery rule contained in § 6-2-3, Code 1975, which provides:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.”

He argues that Central Bank had a duty to disclose the alleged libel because of its confidential relationship with him. Its failure to do so, he asserts, is fraudulent concealment; therefore, he says, his cause of action did not accrue until his discovery of the libel.

We have recognized that § 6-2-3 may be “applied to other torts not arising in fraud in appropriate cases, and applies to a fraudulent concealment of the existence of a cause of action.” Tonsmeire v. Tonsmeire, 285 Ala. 454, 457, 233 So.2d 465, 467 (1970); Miller v. Mobile County Board of Health, 409 So.2d 420 (Ala.1982).

But it is well settled that in the absence of a duty to disclose material facts, a person’s mere silence is not actionable fraud. Ray v. Montgomery, 399 So.2d 230 (Ala.1980). There is, however, an obligation to communicate material facts in a confidential relationship or because of the presence of special circumstances. Code 1975, § 6-5-102.

A confidential relationship is defined as: “[A relationship in which] one person occupies toward another such a position of adviser or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interests, or when one person has gained the confidence of another and purports to act or advise with the other’s interest in mind; where trust and confidence are reposed by one person in another who, as a result, gains an influence or superiority over the other; and it appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side, there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible. It arises in cases in which confidence is reposed and accepted, or influence acquired, and in all the variety of relations in which dominion may be exercised by one person over another.”

15A C.J.S. Confidential (1967). See, also, Floyd v. Green, 238 Ala. 42, 188 So. 867 (1939); Raney v. Raney, 216 Ala. 30,112 So. 313 (1927).

A confidential relationship cannot exist between parties that are antagonistic towards one another. Tonsmeire v. Ton-smeire, 285 Ala. at 458, 233 So.2d at 467. At the time Central Bank issued the credit report, the loan guaranteed by Holdbrooks had been declared in default and Hold-brooks had been informed of the bank’s intention to file for foreclosure. There could have been no confidential relationship between the parties once the situation developed into a lawsuit between the bank and the principal debtor and the guarantors. Controversy and dispute underlie a lawsuit. A lawsuit necessarily implies the existence of opposing parties seeking to protect their respective rights and properties. We recognize that the foreclosure proceedings had not been initiated at the time the credit report was released. The undisputed facts, however, show that the bank and Holdbrooks realized a foreclosure proceeding was inevitable, and that Hold-brooks had acknowledged his obligation as personal guarantor of the note.

We hold that, as a matter of law, there was no confidential relationship between Holdbrooks and Central Bank at the time the alleged libel was published. Furthermore, there is no evidence of any particular circumstances which would obligate the bank to speak. The parties dealt at arm’s length, and Holdbrooks was represented by counsel even before Central Bank filed for foreclosure.

We find the holding in Tonsmeire to be dispositive of this case. We there held:

“In the absence of a(confidential relationship, we know of no duty imposed by law obligating an alleged tort feasor to make known to one possibly injured by his acts the existence of a possible cause of action. Nor was there any duty on the part of those to whom the libel was published to inform the plaintiff of the alleged libel.
“Since no duty to inform the plaintiff was cast either upon the defendant or those to whom he allegedly published the libel, plaintiff’s reason for delay in filing her suit in reality resulted from ignorance of her alleged cause of action.”

Tonsmeire v. Tonsmeire, 285 Ala. at 458, 233 So.2d at 468.

In Tonsmeire, the plaintiff wife sued her estranged husband, alleging libel. The suit was dismissed by the trial court because it was filed more than one year after the date of publication of the alleged libel. The plaintiff made the same argument appellant presents to this Court. The Court held in Tonsmeire that there was no confidential relationship between antagonistic parties; therefore, the husband was under no duty to speak of the libel to his wife and was not guilty of concealing her possible cause of action.

In the absence of fraudulent concealment, the appellant’s cause of action accrued on the date of publication, August 28, 1979, and his suit filed on March 23, 1981, was barred by the statute of limitations.

Appellant argued in the court below and in brief that Central Bank is estopped from pleading the statute of limitations because its conduct was an affirmative inducement to appellant to delay bringing action. Appellant produced no evidence to support his contention. In the absence of contradictory evidence in opposition to a motion for summary judgment which negates any issue of ¿fact, the Court correctly found no genuine dispute of material fact on the issue of estoppel. Ala.R.Civ.P. 56; Butler v. Michigan Mutual Ins. Co., 402 So.2d 949 (Ala.1981).

The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Jarrell Earl CLEMMONS and Glenda Ellen Clemmons v. Virginia Jean S. VEASEY.
    82-374.
    Supreme Court of Alabama.
    July 22, 1983.
    J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, for appellants.
    Robert P. Lane of Phillips <& Funderburk, Phenix City, for appellee.
   BEATTY, Justice.

This appeal concerns the destructibility of an estate in three grantees created by a 1978 conveyance. The appellee contends that the appeal is untimely. We find the appeal timely and reverse and remand for further consideration.

FACTS

This action began with a “Complaint For Sale For Division And Incidental Relief” filed by Jarrell Earl Clemmons and his wife, Glenda Ellen Clemmons (appellants). The complaint alleged that the Clemmonses and defendant Veasey were joint owners of two lots in Phenix City under a deed dated December 18, 1978. The deed was a conveyance by Veasey as grantor to herself and the Clemmonses as grantees “for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple ... together with every contingent remainder and right of reversion.” The primary relief sought was a sale for division, with appropriate allocation of the sale proceeds to reflect the Clemmonses’ payments on a mortgage and the cost of improvements they made. The Clemmons-es also sought $400.00 for damage allegedly committed by Veasey to a refrigerator.

Veasey filed an answer and counterclaim, claiming that the mutual intent of the parties was for her to reserve a life estate so that she would have a home place for the rest of her life. She alleged that the appellants, her nephew and his wife, represented to her that they would live with her and share expenses; however, she says, they breached the agreement by signing an $18,-600.00 mortgage on the property and subsequently abandoning it and refusing to pay the mortgage. The relief sought by Veasey was denial of partition, cancellation of the deed or reformation of it to reserve a life estate in her, and compensatory and punitive damages. On July 19, 1982, after a hearing, the trial court entered an order reading in part as follows:

“5. That the property conveyed by the defendant to the plaintiffs cannot be ordered sold for division without the approval of all grantees.
“8. That the deed, as executed from the defendant to the plaintiffs, represents the intent of the parties, at the time of said conveyance, and that there was no evidence which would indicate that puni-five damages should be paid on a counterclaim or that damages should be paid to the plaintiffs for a refrigerator and freezer.
“It is, therefore,
“ORDERED, ADJUDGED AND DECREED BY THE COURT as follows:
“1. That in order to effectively determine the actual sums of money owed by either party, it will be necessary to have an appraisal of the premises on a before and after basis as well as a specific accounting from them of the actual payments made which were in dispute at the time of the hearing in the interest of time.
“2. That counsel for the parties be and appear before the Court on the 30th day of July 1982 at 10:00 o’clock A.M. to make such stipulations as to actual payments as may have iDeen made by the parties , and to submit to the Court, by affidavit or otherwise, any other evidence pertinent to expenditures that have been made since the hearing of this cause.
“3. All matters not adjudicated in this Order are reserved for the further orders of the Court.”

Over three months later, the Clemmonses filed a motion for entry of final judgment under Rule 54(b), A.R.Civ.P. The trial court promptly granted this motion, as follows:

“Upon consideration of the plaintiff’s motion for entry of final judgment pursuant to Rule 54(b) ARCP, it is ORDERED AND ADJUDGED by the Court as follows:
“I
“There are multiple issues existing between the parties to this action.
“II
“There is no just reason to delay entry of a final judgment as to the sole issue of whether or not the tenancy created under and by the terms of the deed attached to the plaintiffs’ complaint as EXHIBIT A is indestructible either by a conveyance of the real estate described in the deed by any of the grantees or by the Court ordering said real estate sold for division of proceeds at public outcry.
“Ill
“The tenancy created under and by the terms of said deed is adjudged by the Court to be indestructible either by way of a conveyance of the real estate described in the deed by any of the grantees or by way of the Court ordering the same sold for division of proceeds at public outcry.”

“Done this 2nd day of December, 1982.” From this order, the Clemmonses appeal.

TIMELINESS OF THE APPEAL

Veasey argues that the trial court’s July 19 order effectively denied all claims for relief of the parties and thus operated as a final judgment. Claiming the present appeal is untimely in relation to the July 19 order, Veasey seeks dismissal for lack of jurisdiction.

It is perfectly clear that the trial judge’s July 19 order did not dispose of all claims, because it expressly reserved “All matters not adjudicated in this Order ... for the further orders of the Court.” Thus, the trial court purported to enter, and we hold that it did enter, something other than a final judgment, and the parties were given no reason to believe that the time for appeal was running. The parties should be able to rely on the form, as well as the substance, of the order as interlocutory. To hold otherwise would only produce confusion.

THE MERITS

The trial court did not define the estate created by the deed in question. The nature of that estate determines whether the Clemmonses’ action for compulsory partition will lie. To make this determination, we must consider the language of the deed.

The granting and habendum clauses used here (the language quoted above is from the granting clause) are identical to those used in Johnson v. Keener, 425 So.2d 1108 (Ala.1983). We there determined that such language creates not a tenancy in common, but a joint tenancy. We then summarized the consequences of this result:

“In any conveyance by which grantees receive concurrent ownership as joint tenants, the nature of the survivor’s interest is determined by Code of Ala.1975, § 35-4-7. This statute modifies the common law estate of joint tenancy with right of survivorship. Whether the survivor’s interest is destructible depends upon which of our cases construing the statute governs the conveyance to the grantees.
“The case that created controversy in this area of Alabama law was Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). We have recently summarized its holding as follows:
“ ‘In Bernhard this Court held that language in a deed conveying property to grantees as joint tenants with rights of survivorship effectively created a tenancy in common with cross-contingent remainders in each of the tenants. The Court further held that the cross-contingent remainders were indestructible, except with the consent of both cotenants.’
“Yates v. Guest, [416 So.2d 973 (Ala.1982)]....
“[W]e overruled Bernhard in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), holding that under Code of Ala.1975, § 35-4-7, a conveyance to joint tenants
with right of survivorship created a destructible interest in the survivor, as at common law...
(Footnote omitted.)
425 So.2d at 1109-1110.

See also Smith v. Smith, 418 So.2d 898 (Ala.1982).

Since the present deed dates from 1978, Nunn v. Keith controls. Accordingly, under the language of the deed, the estate created is destructible and cannot bar the compulsory partition sought by the Clem-monses.

For the above reasons, we reverse the judgment and remand the cause for further proceedings in accord with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.

      . Rule 54(b): “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Except where judgment is entered as to defendants who have been served pursuant to Rule 4(f), in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

      . Were a tenancy in common created, then Durant v. Hamrick, 409 So.2d 731 (Ala.1981), would be applicable. In brief the attorney for Veasey states that that decision “has been much cussed and discussed by the real estate bar of this state.” One helpful such discussion is R. Deniston, “Joint Tenancy And Tenancy In Common Of Real Property — The Gulf Separating Them,” 44 Ala.Lawyer 72 (1983).


text:
    Charles BULLEN v. ROTO FINISHING SYSTEMS, et al.
    82-399.
    Supreme Court of Alabama.
    July 22, 1983.

      James A. Yance of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
    Norman E. Waldrop, Jr. and Grover E. Asmus, II of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appel-lees.
   SHORES, Justice.

The plaintiff, Charles Bullen, appeals from a summary judgment granted the defendant, Roto Finishing Systems (Timesav-ers). Bullen’s personal injury action is based on breach of warranty, negligence, and the Alabama Extended Manufacturer’s Liability Doctrine.

The issues presented for consideration are:

1. Is the breach of warranty action barred by the statute of limitations?

2. Was the trial court correct in entering summary judgment for Timesavers on the basis that the plaintiff’s negligence claim was defeated by contributory negligence and by plaintiff’s assumption of the risk as a matter of law?

3. Did the evidence establish as a matter of law a substantial change of the equipment by the employer or misuse by plaintiff, which would support summary judgment by the trial court against Bullen’s action based on the Alabama Extended Manufacturer’s Liability Doctrine?

Bullen sustained personal injuries on November 14, 1977, when his arm was caught in an embossing/printing machine owned by his employer, Walled Lake Door Company'(Walled Lake), while the machine was in operation.

Timesavers, whose business was to sell industrial equipment, acquired the machine from its Canadian designer and manufacturer and, in the fall of 1970, sold it to Walled Lake, to whom it was delivered in early 1971. The machine was ultimately installed in Walled Lake’s facility in Mobile, where the accident occurred in November 1977.

' Timesavers has sold only a half dozen of these highly specialized pieces of industrial equipment, the purpose of which is to emboss with ink and imprint a wood grain pattern onto wooden panels. A wooden panel enters the first printing station on the infeed (front) side of the machine, where.inking and imprinting are done by revolving rollers. The panel passes through the first station and along another conveyor a distance of approximately three feet before entering the second printing station, where a grain is imprinted on the surface of the panel by another set of rollers. After passing through the second printing station, the board exits the machine onto a powered belt conveyor.

Walled Lake made several modifications on the machine in Mobile. It constructed a catwalk across the infeed side of the machine and a platform over the midsection of the machine, between the first and second printing stations. Access to the infeed side of the machine’s first station had thus been eliminated, so the task of cleaning and adjusting the machine had to be performed from the platform on the outfeed side of the first station. Since the platform covered the floor-based stationary control panel, Walled 'Lake installed a portable off-on switch. The hydraulic line drive shaft was moved, and Walled Lake installed a vari-drive motor, a variable drive on the print roll, and a gas air motor to the ink roll. The entire machine was elevated above the floor approximately one foot.

At the time of the accident, Bullen was standing on the midsection platform, cleaning the rollers of the first printing station. From this position, he saw panels coming down the line towards the machine and, realizing the panels should not be moving, waved his hands to get the sander’s attention to stop them. Bullen’s right arm became caught in the machine at an in-running nip point, where the inking roll and the embossing roll came into contact with each other, moving in opposite directions. He was unable to shut down the machine and free himself without assistance.

On November 13, 1978, Bullen filed suit against Timesavers and other parties responsible for maintenance and inspection of the machine and sought damages for his personal injuries. As heretofore noted, against Timesavers, Bullen alleged breach of warranty, negligence, and liability under the doctrine of extended manufacturer’s liability. A pro tanto settlement agreement was reached with one of the defendants, and all remaining defendants, including Ti-mesavers, were granted summary judgment against Bullen. The trial court denied Bul-len’s motion to reconsider, and he appeals from the summary judgment for Timesav-ers and the trial court’s order denying his motion to reconsider.

We affirm the judgment of the trial court as to Bullen’s action for breach of warranty. The Alabama Uniform Commercial Code, as applicable to sales of industrial equipment, provides that an “action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” Ala.Code 1975, § 7-2-725(1). The Code further provides: “A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made.... ” Ala.Code 1975, § 7-2-725(2). There is no doubt that the printer/embosser is industrial equipment as defined by Ala.Code 1975, § 7-9-109, Comment 2.

The limitations period ran in early 1975, four years after the machine was delivered to Walled Lake in 1971. This suit was filed on November 13, 1978. The breach of warranty claim is, therefore, barred by the statute of limitations.

We disagree, however, with the trial court’s summary judgment against Bullen on his cause of action based on negligence and the Alabama Extended Manufacturer’s Liability Doctrine. Summary judgment is proper only if the pleadings, depositions, and affidavits show that there is no genuine issue of any material fact and that, as a matter of law, the moving party is entitled to the relief sought.

In Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), this Court adopted the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD). Casrell requires, for the manufacturer to be liable, that the product must “reach the user or consumer without substantial change.” However, here, as in Casrell, expert testimony created at least a scintilla of evidence to place the question within the province of the jury as to whether these changes proximately caused Bullen’s injury. Walled Lake’s modification of the equipment, although said by Timesavers to be substantial, did not override the possibility of a finding by a jury that the machine, as designed and sold, contained a safety deficiency which rendered it unreasonably dangerous under foreseeable uses. Expert testimony offered by the plaintiff indicated that a nip point guard in the form of a stationary metal bar would have prevented objects from being pulled into the machinery by the rollers, without hampering the operation of the machine.

Jury questions were presented not only as to whether the nip point was unsafe and accessible as originally designed, being less than six feet from the floor, but also as to whether Walled Lake’s addition of a catwalk and platform constituted an independent, intervening, and superseding cause of the accident, and whether Bullen’s use of the machinery was proper and usual.

We have many times stated that assumption of the risk and contributory negligence are ordinarily questions for the jury. Testimony conflicts as to whether Bullen, although aware of the hazards of nip points, did foresee and appreciate, or should have foreseen, the accident and whether the task of cleaning the rollers was performed by longstanding, ordinary procedures. As noted in Beloit Corporation v. Harrell, 339 So.2d 992 (Ala.1976), cited in Banner Welders, Inc. v. Knighton, 425 So.2d 441 (Ala.1982), “Ordinarily, the conduct of the plaintiff, in his use of an alleged defective product, is a factual issue for the jury.” Contributory negligence is for the jury where there is a scintilla of evidence to the contrary. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978).

Where not only the facts constituting the conduct of parties, but also the standard of care which they should have exercised, are to be determined, the case is entirely one of fact to be decided by the jury. Patterson v. Seibenhener, 273 Ala. 204, 137 So.2d 758 (1962).

The record in this case, consisting of exhibits, affidavits, and depositions of various witnesses and experts runs to nine volumes, consisting of well over a thousand pages. We have read much of this voluminous record, and we cannot say, as we must to affirm the trial court in its summary judgment ruling, that reasonable minds, drawing upon all reasonable inferences from the evidence, could reach but a single conclusion. The burden is on the party moving for summary judgment to clearly establish the absence of any triable issue of fact and that the movant is entitled to a judgment as a matter of law. Timesavers has not sustained this burden.

The cause is reversed .as to negligence and liability under AEMLD and remanded for trial on the merits.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex parte UTILITY SERVICE CORPORATION OF HUNTSVILLE d/b/a Peterson Electric Company, a corp. (In re ALUMINUM INTERNATIONAL CORPORATION, a corp. v. PETERSON ELECTRIC COMPANY, et al.)
    82-130.
    Supreme Court of Alabama.
    July 29, 1983.

      L. Vastine Stabler, Jr. and Lee E. Bains, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for petitioner.
    No brief filed by respondents.
   FAULKNER, Justice.

This is a petition for writ of mandamus to issue to Circuit Judge John D. Snodgrass. We grant the writ.

On August 27, 1982, this court rendered its decision in Utility Service Corporation of Huntsville, d/b/a Peterson Electric Co. v. Aluminum International Corp., 418 So.2d 870, (Ala.1982), reversing and remanding the cause to the trial judge to award an appropriate sum of damages to Peterson. We stated in an opinion authored by Justice Almon:

“Peterson’s sole contention is that the court erred in failing to award damages. We have reviewed the record and conclude there is evidence which entitles Peterson to damages. The state of the record and briefs leave us somewhat in doubt as to why the trial court failed to award damages. We note that the briefs make no argument with reference to federal law or government procurement regulations and there is no suggestion that this case was decided on any basis other than general contract law. We have reviewed the pretrial order and the judgment of the court, which had the effect of ruling against AIC on its claim and for Peterson on its counterclaims. With the record in this posture we have no alternative but to reverse the judgment and remand the cause for the trial court to award an appropriate sum in damages to Peterson.”

On remand, the judge entered an order that “neither party is to receive damages for any claim from any other party.” In his answer to the petition for writ of mandamus, he states, “It is fundamental to understanding the trial judgment that there was never any intent to find in favor of the defendant on the counterclaim.”

We cannot look into the judge’s mind at this late date and determine what his intent was when he entered his judgment. We interpreted the judgment as having the effect of a ruling in favor of Peterson on its counterclaim. The case was briefed and argued to that effect.

When this court has been presented with a petition for writ of mandamus when the trial court has refused to enter an order consistent with a prior order of this court, this court has granted the writ. Ex parte: Jim Walter Corporation, 283 Ala. 295, 216 So.2d 183 (1968).

We opine that mandamus is the appropriate remedy here. See Cox v. Cox, 50 Ala. App. 354, 279 So.2d 526 (1973).

The writ is due to be granted and the trial judge is directed to enter an order consistent with our decision rendered in the case on August 27, 1982.

WRIT GRANTED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    DEECO, INC., an Alabama Corporation d/b/a I-10 Kampground v. 3-M COMPANY, a corporation d/b/a National Advertising Company.
    82-179.
    Supreme Court of Alabama.
    July 29, 1983.

      Theodore L. Hall of Hall, Friedman, Ash-bee & Laden, Mobile, for appellant.
    Mark J. Everest of Collins, Galloway & Smith, Mobile, for appellee.
   FAULKNER, Justice.

The plaintiff, Deeco, Inc., appealed from a summary judgment dismissing Deeco’s complaint against National Advertising Company for breach of contract.

Deeco operated an overnight camping facility, the “1-10 Kampground,” in Mobile County. Deeco entered into a three-year lease with National in 1976 on a billboard. Shortly after the lease was renewed in September 1979, the billboard was destroyed by Hurricane Frederic. After the hurricane, a representative from National called on Dee-co’s president, William Coker, and told him that they needed to sign a new contract because the representative had used the wrong form for the September 1979 contract. On June 24, 1980, Coker signed the new form. The National representative told Coker that National would have the new billboard up in sixty days. National never erected the billboard. It did, however, begin sending Deeco monthly bills in January 1981, and continued to bill Deeco until April. Deeco refused to pay the bills.

National took the position that the June 24, 1980, document was a proposed contract which it never accepted and, therefore, never became bound by. The putative agreement was a standard form, drafted and supplied by National, which contained a clause on its back side under a heading marked “Acceptance of Contract,” stating:

“This contract shall be deemed to have been executed and its terms enforceable only upon the acceptance hereof by 3M National either by the commencement of performance or by formal written acceptance on the obverse side hereof. Following such acceptance, it shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors, administrators, and permitted assigns.”

The front side of the form contained a space below the signature of the National representative which read:

“ACCEPTED NATIONAL ADVERTISING COMPANY BY_”

Deeco conceded that National never formally accepted the contract by signing in the space provided, for formal acceptance. Nevertheless, it argued, National indicated its acceptance by its subsequent conduct. Specifically, Deeco pointed to the monthly bills from National, each of which indicated that the effective date of the parties’ contract was “01-81.” On two occasions National also sent notices regarding Deeco’s failure to pay the bills. The second notice stated “we have not received payment on your advertising account according to the terms of our contract.... ”

The plaintiff cited' several cases which supported its position. In Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993 (5th Cir.1976), the buyer signed a document supplied by the seller which purported to be an agreement for the purchase of computer hardware. Although the seller never signed the document, the court ruled that a letter to the buyer from the seller confirming the delivery dates for the goods could reasonably be interpreted as an acceptance and it upheld the finding of the trial court that a valid contract existed.

In Empire Machinery Co. v. Litton Business Telephone Systems, 115 Ariz. 568, 566 P.2d 1044 (1977), Empire’s president signed an “Equipment Sales Agreement” for the purchase of telephone equipment. The document contained a “home office acceptance” clause stating that the agreement was to become binding “only upon approval, acceptance, and execution” by Litton’s home office. Although the sales agreement was never signed by Litton, the court reversed the trial court’s summary judgment in Litton’s favor. The court rejected the notion that a seller which places itself in the posture of an offeree by including a “home office acceptance” clause in its sales contract forms must either execute the contract or substantially perform to become bound:

“[I]n our opinion, the rule should be that if the offeree takes steps in furtherance of its contractual obligations which would lead a reasonable businessman to believe that the contract had been accepted, such conduct may, under the circumstances, constitute acceptance of the contract.”

Empire Machinery, supra, 566 P.2d at 1050. The court pointed to letters from Litton to Mountain Bell Telephone Company advising it of the contract and requesting that Empire receive a new phone number, and advising it of Empire’s purchase of electrical equipment (which was apparently adaptable to telephone equipment eventually purchased by Empire from another supplier) and of the cashing of Empire’s down payment check (Litton later tendered a return of the down payment) as raising a question of fact as to Litton’s acceptance.

The defendant relied primarily on Ingalls Steel Products Co. v. Foster & Creighton Co., 226 Ala. 122, 145 So. 464 (1932). In-galls submitted a proposal to a builder regarding steel to be supplied by Ingall which provided that when the document was “accepted” by the buyer and “approved” by an officer of Ingalls by signing the document it would become binding. Upon receipt of the document signed by the buyer, Ingalls’s chief engineer sent a formal acknowledgment of the “order” stating that when In-galls received the architectural plans and approved them shipment would be made promptly. After receiving the plans Ingalls wrote the buyer stating that it had withheld formal acceptance of the contract until receipt of the architectural plans in order to determine the exact amount of steel necessary to complete the order. The proposal had been made from freehand sketches and the final plans showed that more steel would be necessary than Ingalls originally anticipated, and, therefore, the cost would be higher than the original proposal had indicated. This court ruled that the negotiations did not culminate in a contract between the parties.

The existence vel non of a contract is determined by reference to the reasonable meaning of the parties’ external and objective manifestations of mutual assent. Conduct of one party from which the other may reasonably draw the inference of assent to an agreement is effective as acceptance. Mayo v. Andress, 373 So.2d 620, 624 (Ala.1979). Unlike the letters to the buyer in Ingalls, the communications by National to Deeco did not imply that the seller was awaiting further action or information from the buyer before acceptance. To the contrary, National sent bills referring to the “effective date” of the contract and sent a notice asking for payment “according to the terms of our contract.” Those communications could easily have been construed by a reasonable buyer as objective manifestations of assent, especially in light of the absence in the record of any other communications from National to Deeco.

We are of the opinion that the bills and notices from Deeco referring to the existence of the putative contract, coupled with testimony by Coker that National’s representative told him the billboard would be erected within ninety days, constituted evidence of an objective manifestation on the part of National to be bound by the agreement. There being at least a scintilla of evidence to support a finding that a contract was formed, we reverse the summary judgment dismissing the action.

REVERSED AND REMANDED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    DAIRYLAND INSURANCE COMPANY v. GENERAL ACCIDENT INSURANCE COMPANY.
    82-296.
    Supreme Court of Alabama.
    July 29, 1983.
    William C. Wood of Norman, Fitzpatrick & Wood, Birmingham, for appellant.
    Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Smith, Tuscumbia, for ap-pellee.
   FAULKNER, Justice.

This case is affirmed under the ore tenus rule. See Tubbs v. Brandon, 374 So.2d 1358 (Ala.1979).

On March 9, 1980, Jerome Campbell rode in an automobile driven by his fiance Sandra Warren to visit her relatives. Jerome was in considerable pain from a toothache. Sandra gave the keys to the car to Jerome with her permission to drive the car to a drug store, and then to his apartment. While he was driving the car Jerome collided with a vehicle occupied by Henry and Ethel Chaney.

The Chaneys filed suit against Jerome for negligence and wantonness, and against Mildred Warren (the owner of the car driven by Jerome) and Sandra, alleging negligent entrustment.

On September 21, 1981, (1) a consent judgment was entered in favor of Mildred Warren and Sandra Warren; (2) consent judgments were entered against Jerome Campbell in favor of Henry Chaney for $12,000.00, and in favor of Ethel Chaney for $500.00. The judgments were paid by Dairyland and General Accident. Each paid one-half of the judgments.

Following the consent judgments, Dairy-land sued General Accident, seeking damages and a determination of whether Jerome Campbell was insured under an insurance policy issued by General Accident to Mildred Warren, the owner of the car driven by Jerome at the time of the accident.

The General Accident policy contained the following exclusion:

“A. We do not provide liability coverage for any person.. .
“8. Using a vehicle without a reasonable belief that that person is entitled to do so.”

The evidence shows that Mildred Warren owned the car; that Sandra, her daughter, was the only person given permission by her to drive the car; that Jerome Campbell knew that only Sandra had permission to drive the ear; that he knew that Mildred Warren did not want him to drive the car at any time; and that he knew Sandra did not have authority to permit him to drive the car.

The trial court found that Jerome Campbell was a person who came within the policy exclusion. After a review of the evidence, we hold that the trial judge was correct in her judgment.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    Ronnie O. MILLS, as Administratrix of the Estate of Yancey O. Mills, and Ronnie O. Mills, individually v. Jo Ann BOSE and Brenda Kay Mills Livingston.
    82-462.
    Supreme Court of Alabama.
    July 29, 1983.

      Bill Fite, Hamilton, for appellant.
    David Neal and Barry Mansell, Russell-ville, for appellees.
   JONES, Justice.

Yancey 0. Mills died intestate on October 23, 1980. On November 5, 1980, Ronnie B. Mills, his widow, petitioned the probate court for appointment as administratrix of his estate. Her petition was thereafter granted.

On May 6, 1981, the administration proceedings were removed to circuit court, whereupon appellees Jo Ann Bose and Brenda Kay Mills Livingston sought to claim a pro rata share of the estate with Ronnie B. Mills. The crux of appellees’ contentions was that they were the natural and legitimate child and grandchild respectively of Yancey 0. Mills, by an earlier common law marriage between Yancey and Minnie Lee Phifer (“Mamie”).

The trial court, after hearing the evidence ore tenus, found that appellees were the legitimate and natural child and grandchild of Yancey 0. Mills, and were entitled to their allocable share of the estate.

Appellant’s motion for modification of the judgment and/or a new trial was denied. This appeal followed.

We affirm.

FACTS

Yancey 0. Mills and Ronnie B. Mills were formally married on September 9, 1944, in Reno, Nevada, and cohabitated together as man and wife until Yancey’s death on October 23, 1980.

Prior to Yancey’s relationship with Ronnie B. Mills, he fathered three (3) children by Minnie Lee Phifer (“Mamie”): (1) appel-lee Jo Ann Mills Bose; (2) Bobby Gene Mills; and (3) Billy Wayne Mills. Billy Wayne Mills, now deceased, had one child, appellee Brenda Kay Mills Livingston.

According to information listed on the birth certificates of Jo Ann Mills Bose and Billy Wayne Mills, and presented to the trial court, Yancey Mills and Minnie Phifer were the married parents of Jo Ann and Billy Wayne Mills.

Despite appellant’s vigorous protestations to the contrary, the evidence of record clearly reveals: (1) Yancey and Mamie lived together as man and wife for an unspecified time; (2) they were living together when at least two of their three children were born; (3) Yancey referred to Mamie as his “wife” on several occasions; (4) the general reputation in their community was that Yancey and Mamie were married; (5) Yancey publicly acknowledged Jo Ann Mills Bose and Billy Wayne Mills as his children; and (6) it was generally recognized in the community that Jo Ann Mills Bose and Billy Wayne Mills were Yancey’s children.

DECISION

The primary issue for determination is whether the trial court’s finding of the existence of a valid common law marriage between Yancey 0. Mills and Minnie Lee Phifer (“Mamie”) was supported by the evidence adduced ore tenus. We hold that it is.

In Skipworth v. Skipworth, 360 So.2d 975 (Ala.1978), this Court stated:

“The requirements in this state for a valid common-law marriage have been outlined numerous times by this court. No ceremony and no particular words are necessary. Instead, there must first have been a present agreement, that is, a mutual understanding to enter at that time into the marriage relationship, permanent and exclusive of all others. This agreement must be followed by public recognition of the existence of the ‘marriage’ and cohabitation or mutual assumption openly of marital duties and obligations. See Beck v. Beck, 286 Ala. 692, 697-98, 246 So.2d 420, 425-26 (1971) and cases cited therein.
“This court has further noted that a lawful common-law marriage is formed in this state ‘without regard to what the parties consider the legal effect of such relation to be.’ Smith v. Smith, 247 Ala. 213, 217, 23 So.2d 605, 609 (1945); White v. White, 225 Ala. 155, 157, 142 So. 524, 525 (1932). Common-law marriage is not limited to situations where the parties are so ignorant that they do not know that a formal ceremony is the preferred method of marrying. On the contrary, in modern society many individuals realize that common-law marriages have inherent legal problems not found in ceremonial marriages. Such a realization may prompt expressions of concern over the parties’ legal status as well as attempts to eliminate any problems by undergoing a ceremonial marriage. But any evidence of this sort must be examined by the fact-finder in the context of the entire relationship, as was done by the trial court in this case.”

360 So.2d at 976-977.

As is often stated, the trial judge’s finding based on ore tenus evidence is accorded a presumption of correctness on appeal and will not be disturbed unless the decree is unsupported by any credible evidence or is palpably wrong and manifestly unjust. Lavett v. Lavett, 414 So.2d 907 (Ala.1982); King v. King, 269 Ala. 468, 471, 114 So.2d 145, 148 (1959).

Here, there was ample evidence of present agreement, cohabitation, and public recognition to show the existence of a common-law marriage between Yancey 0. Mills and Minnie Lee Phifer.

AFFIRMED.

TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.