text:
    Ex Parte M. Judd WILLIAMS. (In re STATE of Alabama v. M. Judd WILLIAMS).
    3 Div. 884.
    Court of Criminal Appeals of Alabama.
    Petition Granted Aug. 4, 1983.
    Rehearing Denied Aug. 11 and 15, 1983.
   PER CURIAM.

PETITION GRANTED. ORDER ISSUED THAT VENUE BE TRANSFERRED BY THE CIRCUIT COURT OF MONTGOMERY COUNTY TO THE CIRCUIT COURT OF AUTAUGA COUNTY OR THAT THE INDICTMENT BE QUASHED.

BOWEN, P.J., and TYSON and SAM TAYLOR, JJ., concur.

Writ quashed, Ala., 451 So.2d 253.

       The petition was not denied as originally reported at 438 So.2d 773.


source: Caselaw Access Project

author: PER CURIAM. TORBERT, Chief Justice

license: Public Domain

text:
    Ex Parte State of Alabama (re Ex Parte M. Judd WILLIAMS). (In re STATE of Alabama v. M. Judd WILLIAMS).
    82-1104.
    Supreme Court of Alabama.
    March 23, 1984.
    ■ Charles A. Graddick, Atty. Gen. and H. William Wasden, Asst. Atty. Gen., for petitioner.
    Clifford W. Cleveland, Prattville, for'respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

TORBERT, C.J., and MADDOX and BEATTY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

Defendant M. Judd Williams was indicted for theft by deception in the first degree by the grand jury of Montgomery County. Defendant’s motion to dismiss the indictment for lack of jurisdiction and venue in the Circuit Court of Montgomery County was denied. Defendant then filed a petition for writ of mandamus, or in the alternative, for writ of prohibition with the Court of Criminal Appeals. The Court of Criminal Appeals granted the writ of mandamus and ordered Judge Gordon of the Montgomery County Circuit Court to either transfer venue to the Autauga County Circuit Court or to quash the indictment. The State petitioned for a writ of certiorari, which we granted in order to review the Court of Criminal Appeals’ application of our recent decision in Ex parte Hunte, 436 So.2d 806 (Ala.1983), to the law and facts in this case.

Defendant insured a boat and trailer with Capitol Fire and Marine Insurance Company. Capitol has its sole office in Montgomery and sells insurance through independent agents. Defendant was sold his policy on the boat and trailer through the Newton Insurance Agency in Autauga County, an independent agent for Capitol. Defendant is a resident of Autauga County. Shortly after the coverage took effect, the defendant reported to Newton that the boat and trailer had been stolen. After Williams filled out a “property loss notice” at his agent’s office, the agent forwarded the claim to Capitol’s office in Montgomery. Capitol assigned an adjuster to investigate the claim. Although the facts are somewhat incomplete in describing the entire claims handling process, it is clear that the decision to pay was made by personnel in Capitol’s Montgomery office after receiving certain forms from the defendant.

Subsequent to the defendant’s receiving payment on his claim, sufficient evidence developed to indicate that defendant never owned the boat and trailer described in the insurance policy and for which he submitted a theft claim. Defendant was indicted for theft by deception in the first degree.

Code 1975, § 15-2-6, which designates the county where venue is proper, reads as follows:

“When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county.”

Theft by deception in the first degree is defined in Code 1975, § 13A-8-2, which reads as follows:

“A person commits the crime of theft of property if he:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or
“(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.”

The issue on appeal is whether the defendant committed some part of the offense of theft by deception in the first degree in Montgomery County so that venue was proper in Montgomery County.

Defendant, and apparently the Court of Criminal Appeals, placed great reliance on ■our recent decision in Ex parte Hunte, 436 So.2d 806 (Ala.1983). The essential holding in Hunte was that there was “nothing in the language of the statute evidencing that the offense therein proscribed required receipt by, or reliance upon the part of, the Medicaid Agency of the allegedly false claim in order that the offense be completed or consummated.” (Emphasis added.) 436 So.2d at 808. The statute under which the defendant here is charged is not the same as the statute involved in Hunte.

Under § 13A-8-2(2) the defendant must knowingly obtain by deception the property of another. Code 1975, § 13A-8-l(l), states that “[deception occurs when a person knowingly ... [cjreates or confirms another’s impression which is false and which the defendant does not believe to be true.... ” The statute under consideration here, unlike that in Hunte, requires that the defendant’s actions must have an effect on the victim. A victim cannot be deceived by someone if he has not been influenced by the perpetrator’s action or inaction. In other words, the victim must have relied on the perpetrator’s acts, so as to “create or confirm” an impression in the victim’s mind.

It is undisputed that the defendant completed various forms which were necessary to make a claim for payment under his policy. These forms were eventually received by the adjuster in Capitol’s office in Montgomery County, where the decision to pay the claim was ultimately made. The reliance by the victim, Capitol, took place in Montgomery County when it accepted the defendant’s statements as true and issued a check to pay the claim. Because the act or effect of an act requisite to the consummation of theft by deception occurred in Montgomery County, venue was proper in Montgomery County. Venue was also proper in Autauga County, because some of the acts requisite to the consummation of the crime occurred in Autauga County. Under § 15-2-6 the defendant could have been tried in either county. See also, Williams v. State, 383 So.2d 547 (Ala.Cr.App. 1979), affirmed, 383 So.2d 564 (Ala.1980).

The trial court refused to transfer the case from Montgomery County to Autauga County. Defendant then sought to compel the transfer by seeking a writ of mandamus from the Court of Criminal Appeals. Mandamus is a proper remedy only when the “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). The writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Slade, 382 So.2d 1127 (Ala.1980). None of the prerequisites for obtaining relief by writ of mandamus appear here. Therefore, I believe it was error for the Court of Criminal Appeals to grant the writ.

Defendant also maintains that a holding that venue is proper in Montgomery County would deprive the accused of a fair and impartial trial. However, that issue is not properly before us. The defendant did not make application with supporting affidavits for change of venue to the trial court, as required by § 15-2-20. He did mention in his petition for writ of mandamus that venue should be changed because of § 15-2-20, but since the trial court never had that issue before it, the trial court could not have abused its discretion with regard to that issue.

MADDOX and BEATTY, JJ., concur.

      . The statute involved in Hunte was Code 1975, § 22-1-11(a), which provides:
      "Any person who, with intent to defraud or deceive, makes, or causes to be made or assists in the preparation of any false statement representation or omission of a material fact in any claim or application for any payment, regardless of amount, from the medicaid agency, knowing the same to be false; or with intent to defraud or deceive, makes, or causes to be made, or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for medical benefits from the medicaid agency, knowing the same to be false; shall be guilty of a felony and upon conviction thereof shall be fined not more than $10,-000.00 or imprisoned for not less than one nor more than five years, or both.”

      . “The purpose of § 13A-8-2 is to create a unified theft offense which eradicates the common law distinctions between the crimes of larceny, embezzlement and false pretenses.” Committee Comments, Code 1975, §§ 13A-8-2 through 13A-8-5. Reliance was an element of both the offense of larceny by trick, cf., St. Paul Fire & Marine Ins. Co. v. Veal, 377 So.2d 962 (Ala. 1979), and false pretenses, Graham v. State, 346 So.2d 471 (Ala.Cr.App. 1977).


author: ALMON, Justice.

text:
    Thomas R. DIXON v. Kenneth SIMS.
    82-839.
    Supreme Court of Alabama.
    April 6, 1984.
    Rehearing Denied June 1, 1984.

      Livingston, Porter & Paulk, Scottsboro, and Gary E. Davis, Centre, for appellant.
    Bert Latham, and Albert Shumaker of Burns, Shumaker & Davis, Centre, for ap-pellee.
   ALMON, Justice.

This is a suit by a holder of a cotenancy interest for an injunction against the lessee of the other cotenant to restrain the lessee from trespassing or interfering with the plaintiffs possessory interest in the property. The trial court denied relief, and plaintiff appeals.

Nolan and Geneva Bowling, husband and wife, acquired ten acres of land in Cherokee County, Alabama, in 1978. On October 1, 1981, they were divorced in Georgia. As part of the separation agreement, Nolan was given possession of the ten acres and ordered to pay Geneva $4500 by October 1, 1982. Upon the payment of this sum, Geneva was to execute a deed of her one-half interest in the ten acres to Nolan.

On April 5, 1982, Nolan leased a portion of the ten acres to the appellant, Thomas R. Dixon. On May 28, 1982, Nolan leased another portion of the ten acres to the appellee, Kenneth Sims. Geneva leased her one-half interest in the entiré ten acres to Dixon on June 3,1982, and sold the same interest to him on June 8, 1982, subject to reconveyance should Nolan purchase Geneva’s interest in accordance with the divorce decree. Nolan never tendered payment of the $4500 to Geneva, nor did she execute a deed conveying her interest to Nolan.

Sims built a fireworks stand on the portion of the property leased to him by Nolan. On October 21, 1982, Dixon filed this action against Sims, alleging that Sims was trespassing, removing trees, and interfering with Dixon’s rights of ownership. The complaint requested that the court declare Sims’s lease void and enjoin Sims from trespassing or interfering with Dixon’s pos-sessory interest.

After trial, the court entered a judgment denying relief on December 10, 1982. Dixon filed a motion for new trial, which the trial court denied on April 23, 1983, the parties having consented to the trial court’s carrying the motion beyond the ninetieth day. Rule 59.1, A.R.Civ.P.

“Tenants in common hold separate and distinct titles and may lease or convey their separate interests.” Spurlock v. Spurlock, 364 So.2d 1149, 1150 (Ala.1978); Glass v. Cook, 257 Ala. 141, 57 So.2d 505 (1952).

The rule is stated at Annot., 49 A.L.R.2d 797, 798 (1956), that ■

“a lease by one tenant in common, or joint tenant, whether purporting to cover the premises generally or merely a specified interest therein, is valid and effectual to the extent of the lessor’s interest, and entitles the lessee to occupy, use, and enjoy the premises as fully as the lessor himself might do but for the lease.”

(Footnotes omitted.) The trial court cited this annotation for the proposition that “the lessee of one co-owner, or of some of them less than all, cannot be excluded or evicted from the premises by the nonjoin-ing owners.” Id., at 812. Both of these statements of law are in accord with the Alabama law on the subject. Crommelin v. Fain, 403 So.2d 177 (Ala.1981); Spurlock v. Spurlock, supra; Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446, 96 So. 417 (1923).

The trial court also noted that it had found no cases where injunctive relief against one cotenant in behalf of another was held proper except where water rights or the commission of waste were involved. Crommelin v. Fain, supra; Kellum v. Williams, 252 Ala. 71, 39 So.2d 573 (1949); Foshee v. Foshee, 273 Ala. 539, 143 So.2d 301 (1962); Jasper Land Co. v. Manchester Sawmills, supra. The trial court declined to grant injunctive relief because, it stated, “[t]here is no waste alleged and neither water, nor timber, nor minerals are involved which might justify injunctive relief.”

Dixon argues that injunctive relief is appropriate to prevent

“(1) injuries to real property, especially repeated injury, Smith v. Morris, 181 Ala. 279, 61 So. 276 (1913); (2) waste by cutting and removal of timber, Jasper Land Co. v. Manchester Sawmills, [supra]; (3) exclusion of a co-tenant from use of a water line, Kellum v. Williams [supra]; and (4) encroachment on property rights, Foster v. St. John’s Baptist Church, Inc., 406 So.2d 389 [Ala. 1981].”

All of these contentions are adequately answered by the trial court’s finding that there was neither an allegation of waste nor any timber cutting which would justify an injunction. The evidence shows that Sims graded and paved a small area of land on which to place his fireworks stand and a driveway. Any clearing of timber was insignificant and not likely to be repeated.

Dixon interprets the trial court’s decree as implying that he “can sue Sims for rents and profits after each fireworks season,” and argues that injunctive relief is appropriate to prevent a multiplicity of suits, citing Rouse v. Martin, 75 Ala. 510 (1883). The trial court’s decree, properly read, implies that Dixon might sue Nolan Bowling, his cotenant, for rents held as trustee, Walden v. Walden, 265 Ala. 667, 93 So.2d 489 (1957); Faust v. Faust, 251 Ala. 35, 36 So.2d 232 (1948), or to account for such rents, Spiller v. Mackereth, 334 So.2d 859 (Ala.1976); Dawson v. Thorpe, 47 Ala.App. 215, 252 So.2d 331 (1971).

Regardless of whether an action for rents might lie against Nolan Bowling, the trial court correctly held that Dixon was not entitled to the injunctive relief sought against Sims, the only defendant in, this action. The judgment of the trial court is therefore due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . Dixon contended at trial that the two leases covered the same portion of the ten acres, but the trial court ruled the leases did not describe the same parcel. Dixon does not argue that the court committed error in this portion of its order.

      . Here, of course, injunctive relief is sought against the lessee of a cotenant, but we see no difference for the purpose of this case.


author: MADDOX, Justice. TORBERT, Chief Justice

text:
    Joyce BARRETT, Administratrix of the Estate of Lois Williams, Deceased, et al. v. FARMERS & MERCHANTS BANK OF PIEDMONT, et al.
    82-962.
    Supreme Court of Alabama.
    April 6, 1984.
    Rehearing Denied May 25, 1984.

      Ronald L. Allen of Merrill, Merrill, Mathews & Allen, Anniston, for appellants.
    Ralph D. Porch of Merrill, Porch, Doster & Dillon, Anniston, for appellees.
   MADDOX, Justice.

I

The issue before the Court is whether the trial court correctly granted a summary judgment for the defendants in a suit with counts of negligence, wantonness, outrage, fraud and conversion of a check. The trial court granted the defendants’ motion for summary judgment on all counts of the amended complaint. We affirm in part, reverse in part, and remand for further proceedings.

The plaintiffs’ decedent, Lois Williams, died intestate on May 19, 1982, and was survived by five daughters. Joyce Barrett and Brenda Smith are two of the surviving daughters. At the time of Lois Williams’s death, National Home Life Assurance Company (hereinafter insurer) had in effect a policy of life insurance in the amount of $5,000. Lois Williams’s husband was the named beneficiary, but he had predeceased her. Plaintiffs timely filed a claim for the insurance proceeds. The insurer issued a check on July 12, 1982, for $5,033.57 payable to “The Estate of Lois Williams, Rt. 5, Box 10, Piedmont, Alabama 36272” and mailed the check to Debra Danford, a sister of the plaintiff, who resided at this address. The endorsements of the five daughters were purportedly made by only two of the daughters. Debra Danford signed the names of three daughters on the check; her own and those of Brenda Smith and Bobby Jo Williams, who was a minor at the time of the signing. The check was endorsed personally by Joyce Barrett and Billie Pogue. No guardianship for this minor child had been established, nor had probate proceedings for the intestate’s estate been instituted at the time of these endorsements.

The plaintiffs’ evidence tended to show that the check was presented to Farmers & Merchants Bank of Piedmont (hereinafter Bank) to be cashed, on July 22, 1982. The teller obtained permission to send the check to the “issuing” bank for clearance. Brenda Smith alleged, in an affidavit, that Lat-ta, a vice president of Bank, telephoned Smith on August 12, 1982, and informed her the check had been cleared for payment, but that before Bank would cash the check, two notes held by Bank, which Lois Williams had signed as guarantor, would have to be paid. This affidavit further stated that the family had relied on this information.

Defendants’ evidence, consisting of answers to the plaintiffs’ interrogatories, tended to show that:

“On or about July 22, 1982, one of Lois Williams’s daughters brought in a check payable to the estate of Lois Williams. There were several signatures on the back of the check, none of which was in the name of administrator or administra-trix of the estate of Lois Williams. The check was processed by the teller to the issuing [drawee] bank for clearance. An explanation was given to [plaintiffs] at that time that the check would be forwarded to see if it would be honored....
“Teller, Linda Morgan, referred them to [Franklin W. Latta, a vice-president] and [he] sent them to Ruby Gresham, vice-president, and Ms. Gresham sent the check off for collection (clearance) to issuing bank ... the same day_ Plaintiff [sic] asked bank to send check off for collection [clearance].” [Defendant’s answers to plaintiff interrogatories.]

The defendants admitted “the check was returned from clearance payable to Farmers & Merchants Bank.”

Defendants’ evidence also showed that the decedent Lois Williams had co-signed as guarantor on two notes made by Joyce Barrett and her husband, Jimmy Barrett, and that Bank had encountered some difficulty in the collection of installment payments on these two notes. No evidence is in the record as to whether any defaults had occurred on the notes nor what would constitute a default under each contract or note. Defendants’ only evidence of the notes indicates that they had identical language, which stated:

“In the event of a default, the lender may (when and where legally permissible), without demand or notice of any kind, set-off all or any portion of this note against any balances, credits, deposits, accounts, monies or other property of the borrower at any time held by the lender.” (Emphasis added.)

The evidence tended to show that on August 14, 1982, Joyce Barrett and her husband went to the defendant bank. Upon arrival, the Barretts informed defendant David Martin, a vice-president of the bank, that they had come to collect the proceeds of the policy and to ‘clear up’ the two notes with the bank. Joyce Barrett had borrowed over $1,100 and her husband had borrowed over $2,100 from the bank on April 24, 1981, and February 4, 1982, respectively. Joyce Barrett acknowledged, in her deposition taken on October 8, 1982, that the payments on the loans were at least one month behind. She also, in this deposition, stated that she told the defendant Martin to deduct the remainder owing on the smaller loan from the insurance proceeds and that she and her husband would bring the larger loan’s payments up to date. She stated that Martin went to speak with Latta and then came back and told her and her husband they would have to meet with Latta. In her deposition, plaintiff Barrett related the substance of the Barretts’ conversation with Latta:

“Well, we went in and told him about the note, that Mother’s name was supposed to come off the note after the small note was paid and that he could take that payment out of the $5,000. He said, ‘Well, we need the whole thing paid in full, both notes.’ Jimmy told him we would get someone else to sign with us on the truck note because this is my money and they can’t take the money that’s not his and pay his note with it. He thought about that for a minute. My husband said, ‘Well, what if I get Randy Smith to sign with me?’ He thought about that for a minute and then he said, ‘We’re going to need the payment in full.’ Then Jimmy said, ‘Well, you can just have the truck back.’ He said, ‘We don’t need the truck. We have the check.’ Then Jimmy said, ‘That’s a bunch of stuff.’ And then he said, ‘Well, it might be that.’ ”

Barrett then informed her sisters of these events, and she said in her deposition they were “very upset because everybody had been calling them and dunning them and threatening to put a lien on our house [Lois Williams’s house] because we hadn’t paid our bills [Lois Williams’s personal debts].”

Joyce Barrett stated in her deposition that the decision to hire a lawyer came as a result of a conversation her sister Brenda Smith had later with Latta. Barrett, in her deposition, said, “he told her that if she didn't believe he could hold the check for the note that she could get a lawyer. So she called a lawyer.”

A petition for letters of administration was filed with the probate court on August 17, 1982, and this lawsuit was filed on August 25, 1982. Joyce Barrett and her four sisters were named as plaintiffs, and the insurer, the bank, Martin, and Latta were named as defendants. The bank moved to interplead the insurance proceeds on August 31, 1982. Motions to dismiss made by the defendants were denied. A motion to strike all plaintiffs except Joyce Barrett, as administratrix, was granted on December 7, 1982. Summary judgment motions for all defendants were filed on December 20, 1982. The trial court granted summary judgment for the insurer and Martin on January 5, 1983. The plaintiffs amended their complaint in toto with counts of conversion, negligence and outrage, and two counts of fraud, and named Latta, Martin, the insurer, and the bank as defendants. The trial court, on motion of the defendants, dismissed Barrett and Smith as individual plaintiffs, dismissed the insurer as a party, and granted summary judgment on all counts for Martin, Latta, and the bank on June 3, 1983. Joyce Barrett, as administratrix, and individually, and Brenda Smith appeal.

II

Appellants raise three issues on appeal:

“Was there a genuine issue of any material fact as to the plaintiffs’ allegation of conversion relative to the defendants Franklin W. Latta and Farmers & Merchants Bank of Piedmont?
“Was there a genuine issue of any material fact as to the plaintiffs’ allegation of fraud relative to the defendants Franklin W. Latta and Farmers & Merchants Bank of Piedmont?
“Was there a genuine issue of any material fact as to the plaintiffs’ allegation of outrageous conduct relative to the defendants Franklin W. Latta and Farmers & Merchants Bank of Piedmont?” (Emphasis added.)

We first make note that the appellants/plaintiffs do not appeal from the summary judgment as it related to the negligence count, nor as it related to the insurer. As those issues are not raised on appeal, they are considered waived and we will not review them. See Dethlefs v. Etnire, 387 So.2d 201 (Ala.1980); Mullins v. Mullins, 416 So.2d 1063 (Ala.Civ.App.1982).

The trial judge entered an order in which he made extensive findings of fact on disputed matters and conclusions of law. This order, in pertinent part, reads:

“1. Lois Williams, a resident of Piedmont, Calhoun County, Alabama, died on May 19, 1982 at Northeast Alabama Regional Medical Center in Anniston, being survived by five daughters, Bobbie Jo Williams, age 17, unmarried; Debra Jean Dan-ford, age 26, married; Brenda Smith, age 24, married; Billie Pogue, of legal age, married; and the plaintiff, Joyce Barrett, of legal age and married. At the time of her death, National Home Life Assurance Company had in force and effect a policy of insurance on the life of Lois Williams in the amount of $5,000.00, being Policy No. 010LA35299.

“... The check, after endorsements, was presented to the defendant bank to be cashed and an unidentified lady at the bank obtained permission from, the plaintiff, Joyce Barrett, to send the check to the issuing bank for clearance. There was no conference by the plaintiffs with any official of the bank at the time the check was sent for clearance.

“3. On or about the 14th day of August, 1982, the check returned from clearance payable to Farmers & Merchants Bank, and the bank, through its officer, Franklin W. Latta, called to state that the check had been returned and requested that the administration of the estate of Lois Williams be started and that an administrator or administratrix of the estate of Lois Williams be appointed. Plaintiff Joyce Barrett went to the office of an attorney and was told that it would be necessary to have someone appointed as administrator of the estate of Lois Williams and such appointment was obtained on August 18, 1982 through the Probate Court of Calhoun County, Alabama. After the appointment of Joyce Barrett as administratrix of said estate, no demand was made by her on the defendant bank or the individual defendants for the receipt of the proceeds of said check, either by telephone or by letter. The plaintiff simply employed a lawyer and filed suit for damages.

“4. The defendant bank had requested the appointment of the administrator of the estate of Lois Williams in order that it could properly pay the proceeds of said check to a qualified person to receive same. The check, for the convenience of the plaintiff, was sent to the office of Thomas J. Knight, an Anniston' attorney, and the plaintiffs were notified that the check could be picked up at his office. When the check was not picked up by the plaintiff, nor demand for the same received, the defendant bank interpleaded the proceeds of said check into this case following suit and the same now rests in the hands of the Clerk of this Court. The plaintiffs have steadfastly refused to accept said check and instead proceeded with its [sic] demand for damages in the amount of $800,000.00 in compensatory and punitive damages for the tortious conversion of the insurance proceeds and fraud and outrage.

“5. This Court has previously rendered a verdict in favor of the defendant, National Home Life Assurance Company, on its Motion for Summary Judgment.

“6. The evidence fails to show that the defendant, Farmers & Merchants Bank of Piedmont, Franklin W. Latta or David Martin utilized the proceeds of the insurance check in the amount of $5,033.57 in any manner except to pay the proceeds of the same to the authorized administratrix of the estate of Lois Williams upon qualification. There is no evidence before the Court that any of the defendants deposited said money, collected any of said money for its [sic] purposes nor in any fashion attempted to profit from said transaction by the investment or withholding of said funds. It does appear that the estate of Lois Williams was indebted to the defendant bank at the time of the death, but there is no evidence before the Court that any of the proceeds of said check were applied to this indebtedness.

FINDINGS OF LAW

“1. The Alabama Supreme Court in the case of American Road Service Co. v. Inmon, 394 So.2d 361 (1980), recognizes the tort of outrage and stated that,

“ ‘The conduct be [sic] of such serious nature that it can only be characterized as extreme and outrageous. The conduct must be so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. “ ‘It has been stressed that this (tort of outrage) does not recognize recovery for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities”.’ Restatement of Torts, Section 46, (1965) [While in the form of a quotation, this appears to be a paraphrase of Inmon.]

“It is obvious to the Court that the conduct attributable to the defendants in this case could not be classified as outrageous and beyond all bounds of decency and conduct intolerable in a civilized society.

“Likewise, there appears to have been no fraud perpetrated on the plaintiffs by any of the defendants in that the funds were available to the plaintiffs upon the qualification of a proper administrator to receive said funds. Said person, having qualified, was bound to make demand on the defendants for the funds, but no such demand was made.

“2. The question remains whether or not there was a conversion of the proceeds of the life insurance check by the defendant bank or its officers named as individual defendants.

“ ‘Conversion consists either in appropriation of plaintiffs property to defendant’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of plaintiff’s rights, or in withholding possession from plaintiff, under claim of title inconsistent with his own.’ Kemp’s Wrecker Service v. Grassland Sod Co., Inc., 404 So.2d 348.
“ ‘The bare possession of property, without some wrongful act in the acquisition of possession, or in its detention, and without illegal assumption of ownership, or illegal user or misuser, is not a conversion.’ Bolling v. Kirby and Brother, 90 Ala. 215 [7 So. 914],.
“ ‘In order for there to be a conversion it must appear that a wrongful taking, detention or an illegal assumption of ownership or use of another’s property has taken place.’ Ott v. Fox, 362 So.2d 836 (Ala.1978).
“ ‘Where the original taker acquires possession of the property rightfully and has neither asserted legal title to it nor exercised dominion over it inconsistent with the rights of the owner, ordinarily a demand and refusal to deliver the property are necessary.’ Shriner v. Meyer, 171 Ala. 112, 55 So. 156 (1911); Citizens Bank of Enterprise v. Coffee County Bank, [431 So.2d 1203 (Ala.1983) ].

“After examination of the Findings of Fact and the Law in the ease the Court renders the following order:

“ORDER

“1. There remains only one party plaintiff in this cause, Joyce Barrett as adminis-tratrix of the estate of Lois Williams. All other parties plaintiff are hereby dismissed as well as defendant National Home Life Assurance Company.

“2. Defendants’ Motion for Summary Judgment with respect to all allegations of the plaintiffs’ complaint as last amended in this cause, is granted, as there is no genuine issue as to any material fact and the defendant Farmers & Merchants Bank of Piedmont, Franklin W. Latta and David Martin are entitled to judgment on said Motion for Summary Judgment as a matter of law.”

Ill

The law in summary judgment cases is clear:

“In order for summary judgment to be proper, the pleadings and affidavits submitted by the movant must show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. A.R.C.P. 56(c).”

Bon Secour Fisheries, Inc. v. Barrantine, 408 So.2d 490, 491-492 (Ala.1981); see also Allen v. Whitehead, 423 So.2d 835 (Ala. 1982), and Houston v. McClure, 425 So.2d 1114 (Ala.1983).

The summary judgment rule must be read in the context of the “scintilla evidence” rule. “Thus, if there is a scintilla of evidence supporting the position of the party against whom the motion is made, ... summary judgment cannot be granted.” Ala.R.Civ.P. 56, comment. See also, Bennett v. Cole, 426 So.2d 832 (Ala. 1982).

Finally, on a motion for summary judgment, the trial court cannot try issues of fact; it can only decide if there are issues which should go to a jury. Horton v. Northeast Ala. Regional Medical Center, Inc., 334 So.2d 885 (Ala.1976). See also, Ingram v. Akwell Indus., Inc., 406 So.2d 897 (Ala.1981).

IV

THE OUTRAGE COUNT

The law to be applied in a case involving the tort of outrage has been clearly stated: the behavior of a defendant must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46, Comment (d) (1964). See also, American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1980), and Bowen v. National Security Fire and Casualty Co., 447 So.2d 133 (Ala.1983).

Was there a scintilla of evidence that the defendants behaved in a manner toward the plaintiffs which would not be tolerated in a civilized society? We think not. The most that can be said, viewing the evidence most favorably to the appellants, the non-moving parties, is that the defendants’ behavior was extended to “mere insults, indignities, threats [or] annoyances” for which the law will not hold one liable in tort. Restatement (Second) of Torts § 46, Comment (d) (1964).

THE FRAUD COUNT

In a fraud case, Code 1975, §§ 6-5-101, -102, and -103, give the law to be applied:

“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.” Code 1975, § 6-5-101.
“Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” Code 1975, § 6-5-102.
“Willful misrepresentation of a material fact made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of a falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.” Code 1975, § 6-5-103.

Was there a scintilla of evidence that the defendants committed a fraud upon the plaintiffs? Although this is a more difficult question, we think there was enough evidence to go to the jury to determine whether the bank misrepresented a material fact to the plaintiffs.

The defendants argue that the loans to the Barretts were in default, thereby giving Bank the legal right to withhold the proceeds of the insurance policy, as contracted for by the terms of the notes. The evidence before this Court of defaults on either loan is limited. The only evidence in this regard is Joyce Barrett’s deposition in which she admitted the installment loan payments were not up to date at the time the check was first presented to Bank. Bank's answers to plaintiffs’ interrogatories showed only that Bank had attempted to collect on the Barrett notes by “normal and usual payment, payment notices and collection procedures.”

Although denied by defendants in brief, the plaintiffs’ evidence tended to show that the insurance check was endorsed with the purported signatures of Lois Williams’s heirs in reliance upon a conversation with Latta. In their brief, the defendants admitted they had certain knowledge at the time the check was presented that:

“Lois Williams was survived by a minor daughter, Bobbie Jo Williams, age 17, unmarried, and for whom no guardian was appointed. It knew and explained the necessity for the appointment of an administrator of the estate. It knew that three of the endorsements on the check were not made with apparent authority. It knew, through information from the appellant, that there were claims against the estate which had not been paid.”

The defendants also admit in brief that the check was nevertheless returned to the “issuing” bank for “clearance” (collection) and that no funds were interpleaded until after suit was filed.

The plaintiffs’ evidence also tended to show that because the proceeds were held by Bank, no funds were available to pay creditors of Lois Williams’s estate, to pay burial expenses, or to pay for repairs on Lois Williams’s house, and that the daughters used what funds they did have to try and pay off the two notes.

We think the plaintiffs offered at least a scintilla of evidence to show the defendants knew an administration of the estate would be necessary before any creditors could collect on any debts of the estate, that Bank did not intend to pay the proceeds to the daughters upon endorsement and “clearance” by the “issuing” bank, that Bank failed to inform plaintiffs of the necessity of an administration and the planned “use” of the check to collect the debts, and that plaintiffs relied upon defendants’ representations as shown by the endorsements and consent to send the check to the “issuing bank” for clearance. We hold it was a fact question to be presented to a jury whether the defendants misrepresented to the plaintiffs a material fact, and whether they relied upon the misrepresentation to their detriment.

THE CONVERSION COUNT

In an action for conversion of a check, the legislature has spoken:

“(1) An instrument is converted when:
(a) A drawee to whom it is delivered for acceptance refuses to return it on demand; or
(b) Any person to whom it is delivered for payment refuses on demand either to pay or to return it; or
(c) It is paid on a forged indorsement.
“(2) In an action against a drawee under subsection (1) the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) the measure of liability is presumed to be the face amount of the instrument.
“(3) Subject to the provisions of this title concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.
“(4) An intermediary bank or payor bank which is not a. depositary bank is not liable in conversion solely by reason of the fact that proceeds of an item indorsed restrictively (sections 7-3-205 and 7-3-206) are not paid or applied consistently with the restrictive indorsement of an indorser other than its immediate transferor. (Acts 1965, No. 549, p. 811.)” Code 1975, § 7-3-419.

See also, Ott v. Fox, 362 So.2d 836 (Ala. 1978).

Was there a scintilla of evidence that Bank, acting through its officers, converted the check? We think so. Defendants admitted in their brief certain knowledge at the time of presentment of the original check. (See discussion under “Fraud Count.”)

Knowing these facts, Bank, rather than refusing the check, took the check and had it reissued in Bank’s name, and there is some evidence that the defendants notified the plaintiffs that they could not get the proceeds until the indebtedness was paid.

We recognize that the evidence is in conflict on the intent of the defendants in taking the acts it took, but on summary judgment, we must review the evidence in a light most favorable to the non-moving party. Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784 (Ala.1980).

Defendants contend that it is undisputed that, none of the proceeds of the check were ever applied to the Barrett notes and the record shows this is true, but we do not think this fact entitles the defendants to a judgment as a matter of law. See, Ott v. Fox, supra.

We hold that there was at least a scintilla of evidence whether the defendants wrongfully exercised dominion over the property of the plaintiffs. We realize the defendants contend that the check was sent for clearance with the consent of the plaintiffs, but in view of the facts which the defendants admittedly knew at that time, it was a fact question whether their acts were done for the purpose of wrongfully exercising dominion over the property of the plaintiffs.

CONCLUSION

Applying the applicable law on the propriety of a summary judgment, we cannot hold that the defendants sustained their burden by showing that there was no genuine issue of material fact, and that the defendants were entitled to a judgment as a matter of law on the fraud and conversion counts.

For the foregoing reasons, the summary judgment for the defendants Latta, Martin, and Bank on the outrage count is affirmed; the summary judgment in favor of Latta, Martin, and the bank on the counts of fraud and conversion is reversed, and the cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring in the result).

I want to point out that the defendant bank’s conduct in the taking of a check made payable to the defendant bank in settlement of the check sent to the drawee bank for “clearance” (collection) is not necessarily improper. Code 1975, § 7 — 4—211; see generally, H. Bailey, Brady on Bank Checks, § 11.2 (5th ed. 1979).

      . The only evidence before this Court of what the defendants allege occurred is contained in Bank’s answers to the plaintiffs’ interrogatories. The plaintiffs filed, and the trial court granted, a motion to supplement the record with the plaintiffs’ deposition and the interrogatories and answers of Bank. See Rule 10, Ala.R.App.P. The defendants make numerous references in their brief to a deposition by Latta, but this deposition was not included in the record on appeal.

      . Although the trial court granted the motion to strike all plaintiffs other than Joyce Barrett, the case has been presented to us as one involving multiple plaintiffs, both at trial and on appeal. Hence, we refer throughout this opinion to "plaintiffs."


author: FAULKNER, Justice.

text:
    Leroy BRAXTON and Hazel Braxton v. Henry STEWART.
    82-1050.
    Supreme Court of Alabama.
    April 6, 1984.
    Rehearing Denied June 1, 1984.
    Alice L. Anderson, Enterprise, for appellants.
    James W. Kelly, Geneva, for appellee.
   FAULKNER, Justice.

This is a land line dispute. Leroy and Hazel Braxton filed this action, seeking to establish the boundary between their property and property owned by Henry Stewart. The parties entered into an agreement, which was incorporated into the court’s decree. It provided that the property in question, which is triangularly shaped, is bordered by a section line, by a county road, and by an abandoned road known as the Geneva-DeFuniak Road. The order provided that the parties were to agree on a surveyor to survey the property and establish the location of the boundaries. The parties were to then have a fence installed along the lines established by the survey. The costs of the fence and the survey were to be split between the parties.

On June 8, 1982, Mr. Stewart filed a motion alleging that the parties had been unable to agree on a surveyor and requesting further orders to facilitate the implementation of the decree. The Braxtons filed a response to the motion, alleging that Mr. Stewart had shot at them and that he had failed to allow the plaintiffs to use their property. They requested that the judgment be set aside and that the case be returned to the jury docket. The Braxtons have also apparently filed an independent action, which they refer to as a “bill of review,” in an attempt to set aside the judgment. After a hearing the court ordered that Charles Bowdoin, a registered land surveyor, be allowed to survey the property. Mr. Bowdoin surveyed the property and filed a plat of the land with the court.

On September 23,1982, Mr. Stewart filed a motion requesting that a hearing be set with regard to implementing the order with respect to erection of the fence. The Brax-tons filed an objection to the survey, which reiterated their request to set aside the judgment. After another hearing, the court entered an order providing that a sheriffs deputy was to accompany the Braxtons to the land to enable them to view the lines established by the surveyor.

After viewing the lines the Braxtons filed another objection to the survey. They alleged that the price of the survey was too high and that the survey was inaccurate in several respects. They also reasserted their motion to set aside the judgment, alleging that the defendant had violated the court’s order. After a hearing, at which the surveyor testified, the court entered the order appealed from, dated April 13, 1983. It found that the plaintiffs’ objections to the survey were without merit. It adjudged the boundaries established by the surveyor to be the true boundaries of the property. It approved the fee requested by the surveyor and provided for erection of a fence along the boundary of the parcel. The Braxtons filed a motion seeking to set aside the order, which the court denied.

On appeal the Braxtons argue that the trial court should not have ordered the fence to be built during the pendency of their motion to set aside the judgment and their “bill of review.” They argue that they will be exposed to the additional expense of taking down the fence should they prevail in their efforts to set aside the judgment.

The normal procedure for attacking a judgment after the time for appeal has run is by a motion filed under Rule 60(b), A.R.Civ.P. If relief does not appear to be available under that rule, or if relief is sought in some court other than the one which rendered the judgment, the party may bring an independent proceeding. There is little procedural difference between the two. See the committee comments to Rule 60. Plaintiffs in this case have apparently filed both. They do not seek a review of a ruling on either the independent action or the Rule 60(b) motion, but seek an order holding the judgment in abeyance during the pendency of their attempts to set aside the judgment. Rule 60(b), however, provides that “A motion under this subdivision does not affect the finality of a judgment or suspend its operation.” Likewise, the plaintiffs cite us no authority to support the proposition that the trial court should be compelled, under the circumstances of this case, to stay the proceedings pending the outcome of the independent proceeding.

The trial court’s April 13, 1983, order affirming the survey and establishing the boundaries of the parcel was based on substantial evidence. It was neither clearly erroneous nor manifestly unjust and it is, therefore, due to be affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Earl Ray BELL and Linda Fay Bell v. Lavada B. COOTS.
    82-1102.
    Supreme Court of Alabama.
    April 6, 1984.
    Rehearing Denied June 1, 1984.
    William Kenneth Gibson, Fairhope, for appellants.
    Kenneth Cooper, Bay Minette, for appel-lee.
   ADAMS, Justice.

Earl Ray Bell and Linda Fay Bell appeal from the judgment of the Circuit Court of Baldwin County that Lavada B. Coots, plaintiff below, both recover immediate possession of the property described in a contract to buy and sell which she had entered into with the Bells, and treat as rent all monthly payments made to her by them pursuant to the contract of sale. The Bells contend that time was not of the essence of their contract with Coots, at least with regard to their monthly payment of installments on the purchase price, and, therefore, that Coots was required to notify them of her intention to rescind the contract absent performance within a reasonable time after notice. We disagree, and affirm the judgment of the trial court.

The pertinent facts of this case are as follows:

On February 11, 1980, Coots and her husband, now deceased, entered into a written contract to sell certain real property to the Bells. Among other things, the sale contract required the Bells to pay the total purchase price in monthly installments beginning on February 5, 1980, with a thirty-day grace period for payments. It also eontained provisions for Coots’s immediate recovery of possession in the event of the Bells’ default in making the monthly payments, even if she had not strictly enforced payment within the grace period.

From February 1980, until July 1982, the Bells made the monthly installments required under the contract of sale in a timely fashion. However, they failed to remit the installment due in August 1982 within thirty days of the 5th of that month. Coots immediately filed a lawsuit to recover possession of the property. The Bells then paid their August installment, and Coots dismissed the suit. Then, the Bells did not send Coots the installment due on October 5, 1982, until sometime in December 1982.

Continuing in this pattern, the Bells failed to make their installments for November and December of 1982 within the respective grace periods. Coots did not receive the payments for those months until January 11, 1983. Hence, this action to recover possession was filed.

It is a general rule in equity that time is not of the essence of a contract. Moore v. Lovelace, 413 So.2d 1100, 1102 (Ala.1982); Isom v. Johnson, 205 Ala. 157, 158, 87 So. 543, 544 (1921). However, the parties to a contract may make time of its essence by a clear manifestation of their intent to do so in the terms of their agreement. Moore v. Lovelace, 413 So.2d at 1102; Isom v. Johnson, 205 Ala. at 158, 87 So. at 544.

We think the terms of the contract at issue in this case clearly manifest an intention of the parties that time be of its essence. In addition to including a provision for the seller’s declaration of a forfeiture upon the purchasers’ default in paying the monthly installments on the purchase price, which generally has been held to make time essential, 77 Am.Jur.2d Vendor and Purchaser % 76 (1975), the parties specifically agreed to an acceptable leeway in the Bells’s remittance of payments, namely, a thirty-day grace period.

Our conclusion that time is of the essence of the contract is reinforced by the parties’ testimony concerning their conduct under the agreement. The Bells compliantly made all payments prior to the dates when due or within the thirty-day grace period until August 1982. Moreover, Coots unequivocally indicated her intention to strictly enforce the terms of the contract by filing suit for recovery of possession on the two occasions that the Bells failed to make their payments by the end of the grace period. There should be no serious doubt that the words and actions of the parties indicate that time is of the essence of this contract.

Next, we consider the Bells’s assertion that they were entitled to be called upon to perform and given a reasonable time in which to do so. For this proposition, they rely upon the case of Wilson v. Thompson, 255 Ala. 165, 51 So.2d 20 (1951), in which this court stated:

It is well settled that to rescind a land sale contract for the failure of the other party, the party complaining of such failure must call upon the other to perform and give him a reasonable time after notice in which to comply or be foreclosed. [Citations omitted.]

255 Ala. at 169, 51 So.2d at 24. We think their reliance is misplaced. The above-quoted rule is applicable to contracts requiring performance within a reasonable time. Johnston v. Rothenberg, 270 Ala. 304, 308, 118 So.2d 744, 747 (1960); it does not pertain to contracts when time is of the essence. See Sims v. City of Birmingham, 254 Ala. 598, 608, 49 So.2d 302, 311 (1950). Consequently, absent Coots’s waiver of the time requirement in the contract, she was entitled to the strict enforcement of the terms of the agreement, including the forfeiture provision, without giving pri- or notice to the Bells. 77 Am.Jur.2d Vendor and Purchaser § 81 (1975). See Sims v. City of Birmingham, 254 Ala. at 609, 49 So.2d at 313.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and EMBRY, JJ., concur.

      . We think the trial court's tacit conclusion that Coots was not estopped to recover possession by her conduct was not plainly or palpably erroneous. Satterfield v. Decker, 437 So.2d 506 (Ala. 1983). The record contains evidence sufficient to sustain such a finding. Moreover, that finding comports with the general rule that
      ... the vendor’s acceptance of one or more payments subsequent to the time specified in the agreement does not necessarily waive his right to object to the vendee’s delinquency as to future payments, or preclude him from insisting on strict performance in the future and declaring a forfeiture for the vendee’s default as to future payments. 77 Am.Jur.2d Vendor and Purchaser § 81 (1975).


author: TORBERT, Chief Justice. FAULKNER, Justice

text:
    Keith HALLMARK, etc., et al. v. Lester E. ALLISON.
    82-1209.
    Supreme Court of Alabama.
    May 18, 1984.
    Roger L. Lucas of Emond & Vines, Birmingham, for appellants.
    Thomas A. Woodall of Rives & Peterson, Birmingham, for appellee.
   TORBERT, Chief Justice.

The sole issue raised in this appeal is whether the trial court erred in denying plaintiff's motion for new trial, which alleged juror misconduct in considering evidence not presented at trial. We reverse.

Justice Faulkner ably presents the facts of the case in his dissent. Therefore, we will not restate all of them here. The affidavit of juror McAlister, offered in support of plaintiffs’ motion for new trial, indicates that extraneous facts were introduced into the jury’s deliberation process and that those facts were “important” in reaching a decision. The plaintiffs’ assertion that the affidavit is admissible in support of their motion for new trial is correct when, as in this case, the affidavit is offered to show that extraneous facts were introduced to the jury and that these facts influenced the verdict. See, Whitten v. Allstate Insurance Co., 447 So.2d 655 (Ala.1984).

In Whitten we also clarified the rule as to when juror misconduct will justify a new trial. “Juror misconduct will justify a new trial when it indicates bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law.” Id. at 658. In Whitten three jurors made an unauthorized examination of the scene. of an accident which was the basis of the' suit the jurors were hearing. In the hearing on the motion for a new trial, two jurors, one by affidavit and the other orally, said that the view of the scene influenced them to change their decision. One of the two had actually visited the scene; the other had only received information from the jurors who did view it. This Court reversed the trial court’s denial of the motion for new trial, saying that “the trial court could not have found that the effect of the unauthorized views and the discussions about them were not prejudicial.”

In this case the affidavit of juror Roger McAlister indicated that Mr. McAlis-ter and another juror took measurements of pick-up trucks after the first day of deliberations; that they discussed and demonstrated their measurements and findings with other jurors; and that “the height of the truck and the boy was important in reaching [their] decision because it would be physically impossible for the boy to hit the windshield while standing straight up.” It is clear that extraneous facts were introduced into the jury’s deliberations. It is also clear from Mr. McAlister’s affidavit that the extraneous facts did influence at least McAlister’s decision, and he thought that it also influenced the other jurors’ decisions. The defendant points out that there were a number of photographs introduced as exhibits at trial that had pick-up trucks in them and therefore, he says, the trial court was free to conclude that the measurements did not affect the jury’s verdict.

Initially, we point out that the parties on appeal dispute the matter as to whether the plaintiffs contended at trial that the boy hit the side mirror or the windshield. We do not have the complaint in the record, but we note that defendant Allison, in both his answers to interrogatories and in his deposition, claimed that the boy did hit the windshield, and he said at trial that the impact cracked his windshield. There is in the record a photograph of defendant’s pick-up with a cracked windshield. The defendant maintains that the boy “leaped” into his truck as it passed. An important issue from the defendant’s standpoint, then, is whether it was possible for the windshield of the truck to strike the boy when he was standing up straight if the truck swerved off the road, or whether the boy must have “leaped” (and we presume by this that he leaped up and out) into the path of the truck as it passed and struck the windshield.

The height of the boy and the windshield were, therefore, critical in determining whether the accident must have occurred as the defendant maintained. Juror McAl-ister apparently understood the importance of such measurements, because he took steps to determine the height of pick-up truck windshields, and his testimony indicates that his findings were important in reaching a decision. We reject the defendant’s contention that the same evidence was properly before the jury through the photographs, since it is unlikely that the jurors could have determined the exact height of the windshield from the photographs without a great deal of expertise. Although we are unable to determine whether the introduction of the extraneous facts did change the decision of the jurors, consideration of the extraneous facts was crucial in resolving a key material issue in the case, and we conclude that the trial court could not reasonably have found that the introduction of the extraneous facts into the jury’s deliberations was not prejudicial. In finding no prejudice, the trial court erred.

REVERSED AND REMANDED.

JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX, FAULKNER and ALMON, JJ., dissent.

FAULKNER, Justice

(dissenting).

Hallmark appeals the trial court’s denial of his motion for new trial, which alleged juror misconduct in considering evidence not presented at trial. I would affirm.

On February 18, 1982, Conrad and Barbara Hallmark, and Keith Hallmark, a minor, by and through his next friend, Barbara Hallmark, filed a personal injury suit against Lester Allison in the Circuit Court for Jefferson County. The complaint alleged that Lester Allison negligently or wantonly operated a motor vehicle which struck and injured the pedestrian plaintiff, Keith Hallmark. The case went to trial on May 24, 1983. This court has no transcript of the trial proceedings. In his brief, Keith Hallmark states that at trial his case included the contention that he impacted with the windshield of Allison’s truck. Allison, in his brief, asserts that Hallmark’s contention at trial was that he was struck by the mirror on the passenger side of Allison’s truck. On May 26, 1983, the jury returned a verdict in favor of the defendant Allison and against all plaintiffs.

On June 23, 1983, the plaintiffs filed a motion for new trial, alleging jury misconduct during their deliberations. The motion was supported by the affidavit of juror Roger D. McAlister. The affidavit stated, in part:

“After the first day of our deliberations, I stopped by my shop that afternoon and measured a Chevrolet pick-up truck. One of the other jurors measured a pick-up truck that he was driving. It was our opinion that Keith Hallmark could not have hit the windshield if he had been standing straight up because of the height of the boy and the height of the truck. We presented our measurements and findings to the other members of the jury on the second day of our deliberation and demonstrated with a box we had gotten coffee in and other physical objects such as ball point pens, coffee cups and such. The height of the truck and the boy was important in reaching our decision because it is our opinion that it would be physically impossible for the boy to hit the windshield while standing straight up.”

A hearing on the motion for new trial was held on July 15, 1983. There is no record of the proceedings of that hearing, other than Judge Rogers’s entry in the case action summary, which states:

“The motion for new trial filed by the plaintiff[sj Keith Hallmark and Barbara Hallmark, ... came on to be heard by me this date. After due consideration thereof and having heard the parties with reference thereto, the Court hereby and herewith overrules and denies said motion for new trial. ” (Emphasis added.)

On appeal plaintiffs argue that the trial court abused its discretion in denying their motion for new trial, since, they say, it was shown that the jury considered and was influenced by evidence not presented at trial. There is no merit to this argument.

Initially, plaintiffs are correct in their assertion that the affidavit of juror McAlis-ter is admissible in support of their motion for new trial. Generally, jurors’ affidavits will not be admitted to impeach a jury’s verdict, see Lackey v. Lackey, 262 Ala. 45, 76 So.2d 761 (1955). However, it is a well-established exception to the general rule that such affidavits are admissible to show that extraneous facts were introduced to the jury and that the facts may have influenced or affected the verdict rendered. See Whitten v. Allstate Insurance Co., 447 So.2d 655 (Ala.1984); Weekley v. Horn, 263 Ala. 364, 82 So.2d 341 (1955); McCormick v. Badham, 204 Ala. 2, 85 So. 401 (1919).

The historic rule in Alabama with respect to juror misconduct is that before the denial of a motion for new trial becomes reversible error, the conduct of the juror should be such as to indicate bias or corruption, or the circumstances should indicate that his misconduct influenced the verdict rendered. See Jones v. McMonigal, 409 So.2d 1381 (Ala.1982) (unauthorized view of scene of accident by jurors did not constitute bias or corruption or indicate influence on verdict so as to require new trial); Carr v. Irons, 288 Ala. 211, 259 So.2d 240 (1972) (remark of juror in beauty parlor to non-jurors did not require reversal where there was no showing of bias, corruption, or influence on verdict); Hood v. Kelley, 285 Ala. 337, 231 So.2d 901 (1970) (new trial not required where juror was related to defendant within prohibited degree by affinity, absent showing of bias or prejudice); Blakney v. Alabama Power Co., 222 Ala. 394, 133 So. 16 (1931) (juror’s remark after close of evidence held not to require new trial, absent indication of bias, prejudice, unwillingness to consider argument or instructions, or corrupt intent to intervene with fellow juror); Dulaney v. Burns, 218 Ala. 493, 119 So. 21 (1928) (use by jury of dictionary not in evidence held not ground for new trial where no prejudice was shown and prevailing party had no connection with obtaining dictionary); Leith v. State, 206 Ala. 439, 90 So. 687 (1921) (movant for new trial on ground of jury’s consideration of extraneous fact has burden of showing injury). See also Faust v. Miller, 260 Ala. 665, 72 So.2d 294 (1954) (to justify new trial, there must be some evidence that juror’s conduct influenced verdict); Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237 (1927) (juror’s unauthorized view of scene of accident held harmless error); Louisville & Nashville R.R. Co. v. Sides, 129 Ala. 399, 29 So. 798 (1900) (jury’s consideration of extraneous facts did not warrant new trial, absent showing of improper motive or influence upon jury); Clay v. City Council of Montgomery, 102 Ala. 297, 14 So. 646 (1893) (new trial not justified absent showing that juror’s conduct influenced the verdict).

In Whitten v. Allstate Insurance Company, 447 So.2d 655 (Ala.1984), the court added a new gloss to the old rule.

In Whitten, three jurors made an unauthorized examination of the scene of the accident. This Court reversed the trial court’s denial of plaintiff’s motion for new trial, based upon evidence that two jurors were influenced by the extraneous facts to change their decisions about the case.

There is no transcript of the trial proceedings or the hearing on the motion for new trial in the present case. Consequently, the only evidence before this court indicating juror misconduct is the affidavit of juror McAlister. The affidavit shows that extraneous facts were before the jury in this case. The affidavit also shows, at best, that the extraneous facts were “important” to juror McAlister, and perhaps other jurors, in reaching his decision. There is no evidence in this case which indicates bias or corruption on behalf of the two jurors in measuring their pickup trucks and presenting their findings to the jury. Nor is there evidence which shows that the juror’s conduct adversely affected the verdict. Thus, it is obvious to me that, under the historic rule for juror misconduct, a new trial is not warranted in this case. See authorities cited above.

Furthermore, there is no evidence from juror McAlister’s affidavit that any juror was influenced on the basis of the extraneous facts to change his decision. Further, the record does not show that there was any evidence presented from which the trial judge could presume that without exposure to the extraneous facts the jury would have voted differently in the present case. Prejudice, therefore, could not be presumed as a matter of law in the instant case. See Whitten, supra.

Generally, the granting or refusing of a motion for new trial rests within the sound discretion of the trial court, the exercise of which carries with it a presumption of correctness which will not be disturbed on appeal unless plainly and palpably erroneous. Hill v. Cherry, 379 So.2d 590 (Ala.1980).

Based on the record before this court, and tested by the authorities noted above, I would find that the trial judge was correct in denying plaintiffs’ motion for new trial in this case, and would, thus, affirm.

MADDOX and ALMON, JJ., concur.


author: MADDOX, Justice.

text:
    PARAGON ENGINEERING, INC. v. Sonny RHODES.
    82-1110.
    Supreme Court of Alabama.
    May 25, 1984.
    Donald Hugh Jones and J. Wynell Brooks, Birmingham, for appellant.
    Dan J. Willingham of Smith & Willing-ham, Cullman, for appellee.
   MADDOX, Justice.

The question before the Court on this appeal is whether the unchallenged testimony of several witnesses, who were not professional surveyors, was sufficient for the jury to conclude that defendant engineering and survey firm was negligent in staking a survey site. Even though the law ordinarily requires expert testimony to establish the standard of care a professional person should use, we conclude that the testimony was sufficient under the facts of this case, and we affirm the judgment of the trial court.

Defendant Paragon Engineering, Inc. (Paragon), a civil engineering and survey firm, contracted with United States Fidelity and Guaranty Co., to plan, survey, and “lay out” with stakes, a site to be used as a “retention basin” (holding pond), on property belonging to the Industrial Development Board of the City of Cullman (Development Board). The retention basin was needed because a change in the landscape of the Development Board’s property had resulted in the flooding of adjoining property belonging to W.H. Dial.

Paragon prepared plans for the retention basin and sent a survey crew headed by George Beverly to stake out the project. After the project was staked, plaintiff Sonny Rhodes, an independent contractor, bid on the grading work to be done, was awarded the job, and signed a contract to build the retention basin “according to the plans of and as staked out by Paragon Engineering, Inc.” Paragon was to certify the work following its completion by Rhodes.

After Rhodes had completed the grading work, however, Paragon’s president, Thomas Hugh Gachet, refused to certify the retention basin as constructed by Rhodes because it was roughly one-half the size called for by the plans prepared by Paragon. As a result, Rhodes was not paid for the work done, and another contractor was hired to enlarge the basin.

Rhodes, in a complaint consisting of ten counts, as later amended, brought suit against Paragon and other parties. The trial court dismissed all defendants, except Paragon, at the close of Rhodes’s evidence, and the case went to-the jury on the count of negligence. The jury returned a verdict awarding Rhodes $14,500, plus interest. Paragon appeals from the trial court’s refusal to grant its motions for directed verdict and for JNOV, or in the alternative, a new trial.

Paragon asserts that this case should not have gone to the jury, because, it says, Rhodes failed to prove a prima facie case of professional malpractice. In its brief, the appellant argues:

“The significance of symbols appearing on fill stakes and cut stakes as opposed to grading instructions symbolically demonstrated in slope stakes and percentage ratios are the very germ of the litigation. However, such is far beyond the keen [sic] of the jury and absolutely necessitates expert testimony to not only clarify these essential points, but also to clearly explain the application of engineering tools and procedures available to and within the admitted skill of the plaintiff to explain the use of the transit and tape in establishing stations, and point locations and in determining volume the level and rod for confirming elevations and contours all are essential to an elementary understanding of the case.
“Obviously, this is not a case where the professional’s want of skill or lack of care is so apparent as to be within the comprehension of the layman and to require only common knowledge to understand it. Therefore, expert testimony was indispensable.”

This Court has not previously considered the issue of the standard of care to be exercised by professional' surveyors and the necessity of expert testimony to establish the appropriate standard of care. We have, however, spoken to the standard of care for the related professions of engineering and architecture. See R.L. Reid, Inc. v. Plant, 350 So.2d 1022, 1027 (Ala.1977), and Looker v. Gulf Coast Fair, 203 Ala. 42, 45, 81 So. 832, 835 (1919). With respect to the surveying profession, courts from other jurisdictions have held that because a surveyor is bound to exercise that degree of care which a skilled surveyor of ordinary prudence would have exercised under similar circumstances, it is proper for a jury to know what such an ordinarily prudent surveyor would have done under the circumstances of the case. Annot., 35 A.L.R.3d 504, 506 (1971).

In Jarrard v. Seifert, 22 Wash.App. 476, 591 P.2d 809 (1979), a case where the facts are analogous to those of the instant case, plaintiffs brought suit against an architectural, engineering, and land survey firm and the members of that firm. The plaintiffs sought to recover for losses arising from the defendants’ alleged negligence in staking a condominium site, which resulted in the structure’s encroaching on an easement. The Washington Court of Appeals held, among other things, that the trial court committed no error by allowing plaintiffs to present testimony on the standard of care in the engineering and land survey profession and stated:

“The defendants were employed as professional engineers and land surveyors because of their superior knowledge in that field. The plaintiffs were entitled to rely on that superior knowledge and to expect that such professionals would fulfill the duty of reasonable diligence, skill, and ability.” (Cite omitted.)

22 Wash.App. at 479, 591 P.2d at 812. Likewise, in Kundahl v. Barnett, 5 Wash. App. 227, 486 P.2d 1164 (1971), the Washington Court of Appeals concluded that, based on the testimony given by expert witnesses concerning the accuracy of the survey and methods employed by defendant surveyor, there was substantial evidence in the record that the defendant was negligent in his conduct of the survey.

In Parrish v. Spinks, 284 Ala. 263, 224 So.2d 621 (1969), a case which involved a malpractice action against an oral surgeon, the following rule of evidence was established with respect to medical malpractice cases where the negligence of the physician is not obvious to the layman:

“Ordinarily, in a malpractice case, proof as to what is or is not proper practice, treatment, and procedure, can be established only by expert medical evidence. [Cite omitted.] In such a case, lack of testimony results in lack of proof of negligence and such proof is essential to establish a plaintiffs case.”

284 Ala. at 266-267, 224 So.2d at 623.

Although Paragon insists that the testimony of expert witnesses was essential for Rhodes to prove negligence here, much of the evidence in the present case came from the testimony of witnesses who claimed, without any objection from Paragon at the time of their testimony, that they were knowledgeable and experienced with respect to survey practices and were able to follow the instructions appearing on survey stakes.

The law provides that a witness need not be an expert, in the technical sense, to give testimony as to things which he knows by study, practice, experience, or observation on that particular subject. White v. State, 35 Ala.App. 617, 620, 51 So.2d 550, 553 (1951); Reynolds v. State, 29 Ala.App. 139, 140, 193 So. 192 (1940).

Rhodes testified that he followed the stakes as set out by Paragon and stated, with regard to his qualifications, that he had been in the construction business since 1966, that he had previously built ten ponds, that he had put in sewer lines, and that he had even used a transit and laser beam to check the measurements on this project. Paragon offered no objection to Rhodes’s testimony or qualifications. Also, Wayne Rhodes, his brother and an employee of his, testified that the retention basin was built just as it was staked out, and stated, without any objection from Paragon, that he had operated a bulldozer for sixteen years in projects which involved creeks, ponds, subdivisions, and other jobs where stakes were used to direct the contractor.

The following colloquy with W.H. Dial, whose qualifications and testimony also went unchallenged, and who observed the staking of the retention basin site by Paragon, is particularly instructive:

“Q. At any time have you done any contracting business?
“A. Yes, sir.
“Q. Would you tell us when that was?
“A. Well, I have done some contracting business in laying field lines and water lines, and building houses, and working on some commercial buildings.
“Q. Have you ever built any ponds?
“A. Yes, sir. Built some of those for individuals and some of them was [sic] under the ASCS office of the Agricultural Department.
« ⅝ ⅜ * *
“Q. During your contracting business did you ever read plans and specifications and blueprints?
“A. Yes, sir.
“Q. Have you ever dealt with surveyors during your contracting business?
“A. Yes, sir.
“Q. Dealt with engineers?
“A. Right.
“Q. Have you ever staked out any particular jobs yourself?
“A. Well, yeah. When I would be working for individuals or when I was laying out houses and a few things like that. Lay [sic] out my present store building business and designed it and built it.
“Q. Did you look at the work he [Rhodes] was doing there?
“A. Yes, sir.
“Q. Was he building this according to the stakes that were out there?
“A. Yes, sir.
“Q. About how many times did you go out there when they were working on it?
“A. Oh, at the beginning I wasn’t out there but about three — maybe four times.
“Q. Every time you went out there could you tell if Mr. Rhodes was building that according to the stakes that were out there?
“A. Yes, sir, he was working within the bounds of the stakes.
“Q. After Mr. Rhodes had stopped working out there and you went over and looked at the pond how long did it take you to form an opinion that the pond wasn’t nearly as big as it was supposed to be?
“A. Well, I knew in the beginning after it was staked that it wasn’t what it was supposed to be, but then after , he finished and left. On the 4th and 17, 18, 19 [of April 1981], I spent a good bit of time them [sic] three afternoons out there spot checking and measuring — coming up to that it was less than 50 percent of the size.
“Q. Now, all of these stakes that you say had [instructions for] cuts, and fills, and slopes, and such like, in your opinion did Mr. Rhodes build that pond like those stakes said to?
“A. Yes, sir.”

The only challenge by Paragon to the witnesses’ qualifications to testify concerning the staking of the retention basin by Paragon’s surveyor, came at the close of the plaintiff’s evidence and at the close of the defendant’s evidence, by Paragon’s motions for directed verdict. Such objection, however, was untimely for purposes of preserving any error for review by this Court on appeal [C. Gamble, McElroy’s Alabama Evidence, § 426.01(3) (3d ed. 1977); 75 Am.Jur.2d Trial, § 164 (1964)], unless, of course, the testimony regarding Paragon’s negligence was incompetent as a matter of law.

Ordinarily, the standard of care to be exercised by a professional surveyor could be established only by an expert witness; but because the record shows the witnesses were able to give testimony which would aid the jury in deciding the ultimate question of fact, we consider the non-expert evidence admissible.

AFFIRMED.

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


author: JONES, Justice.

text:
    Jerry W. LAWRENCE v. James V. LACKEY and Sandra G. Lackey.
    82-1124.
    Supreme Court of Alabama.
    May 25, 1984.
    G. Houston Howard II of Howard, Dunn & Howard, Wetumpka, for appellant.
    John I. Cottle III of Cottle & Cottle, Tallassee, for appellees.
   JONES, Justice.

The Plaintiffs/Appellees filed a multi-claim complaint seeking damages for breach of contract, fraud, and bad faith in failing to pay contract benefits, all in a noninsurance context. At the conclusion of all the evidence, Defendant/Appellant moved for a directed verdict:

“The [Defendant moves] the court for a directed verdict upon each of the following grounds .... ”

One of the grounds listed was:

“That the Plaintiffs have failed to prove a prima facie case of bad faith against the Defendant, Jerry W. Lawrence.”

The trial judge overruled the motion and the jury returned a general verdict for Plaintiffs. Appellees insist that, as against a sufficiency of the evidence ground addressed to a general motion, a general verdict cannot be overturned, unless there is a lack of proof as to each of the stated claims. That is to say, where the motion for directed verdict is addressed to the complaint as a whole, and is denied, a verdict is referable to any claim supported by the evidence. Because Appellant presents no “sufficiency” challenge as to the breach of contract claim, say Appellees, this Court cannot review the fraud and bad faith claims on the insufficiency of the evidence ground.

If Appellant’s motion was a general one and only addressed Plaintiffs’ multi-claim complaint as a whole, then the Appellees would be correct. But we do not agree that Appellant’s directed verdict motion, when considered along with the specific ground assigned, was a general motion.

Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981), establishes a two-pronged test for determining whether a motion for directed verdict addressed to a multi-claim complaint is a general motion or one which addresses each of the separate and several claims. Aspinwall says:

“[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count_” 405 So.2d at 138.

Admittedly, the motion in the instant case could have been worded more precisely to call to the court’s attention the specific separate and several claims to which the motion was addressed. But our study of the record convinces us that the motion, along with the specificity of the ground assigned, meets the two-pronged test of Aspinwall, and that the trial court was not misled as to the nature of the motion or the intent of the movant.

This Court has recently rejected the tort of' bad faith in noninsurance contexts. Dickey v. Alabama Farm Bureau Mutual Insurance Co., [MS. Feb. 24, 1984] 447 So.2d 693 (Ala.1984), and Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76 (Ala.1983). We reverse the judgment and remand this cause with instructions to the trial court to enter a judgment notwithstanding the verdict with respect to the bad faith claim and to conduct a new trial as to the remaining claims.

REVERSED AND REMANDED.

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


author: MADDOX, Justice. JONES, Justice

text:
    Annie Doretha BAILEY v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    82-1246.
    Supreme Court of Alabama.
    May 25, 1984.
    Charles F. Carr of Rives & Peterson, Birmingham, for appellant.

      George M. Van Tassel, Jr. of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.
   MADDOX, Justice.

The question here is whether under the terms of the insurance policy issued to the plaintiff’s employer there was an implied warranty by the insuror to inspect the policyholder’s premises and equipment in a good and careful manner so as to give the plaintiff, who was injured on the premises, a right to sue the insuror in contract. We conclude that the plaintiff’s action was ex delicto and not ex contractu, making applicable the one year tort statute of limitations, rather than the longer contract limitations period. The judgment of the trial court is affirmed.

On July 31, 1981, Annie Doretha Bailey, an employee of Benham’s Corporation (Benham), sustained a work related injury. She filed suit on August 6, 1983, nearly two years after the injury occurred.

At the time of the injury, Liberty Mutual Insurance Company had in force a policy providing workmen’s compensation insurance to Benham employees.

The plaintiff’s lawsuit contained two counts, one against Benham for workmen’s compensation benefits, and the second against Liberty Mutual alleging a negligent performance of an insurance contract requiring an inspection of Benham’s workplace. Plaintiff amended her complaint to allege the breach of an implied contract of inspection as well. The trial court granted Liberty Mutual’s motion for summary judgment. The court made that judgment final pursuant to Rule 54(b), Ala.R.Civ.P., and this appeal ensued.

In her brief, the plaintiff-appellant admits that the facts of this case clearly indicate that her claim in tort against Liberty Mutual for negligent inspection is barred by the one-year statute of limitations. See Code 1975, § 6-2-39(a)(5). Appellant asserts, however, that under the terms of the insurance contract, Liberty Mutual impliedly warranted that it would conduct inspections of the policyholder’s premises and equipment in a good and careful manner, and that the appropriate statute of limitations applicable to an implied warranty arising from an express contract is six years. See Sims v. Lewis, 374 So.2d 298 (Ala.1979), and § 6-2-34(4). Appellant quotes the following excerpt from this Court’s opinion in Holley v. St. Paul Fire & Marine Insurance Co., 396 So.2d 75 (Ala.1981), as authority for her reasoning with respect to this issue:

“Although Service Master argues that the terms of its contract obligate it only to manage and supervise the housekeeping functions for the hospital, we cannot at this stage rule out the possibility that, under the allegations of Count II, plaintiff may be able to prove, inter alia, a negligent failure to perform that contract, express or implied in fact, to be such a breach as would entitle plaintiff to some damages. Cf. Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1955) and Berry v. Druid City Hospital Board, Ala. 333 So.2d 796 (1976). That being so, the applicable statute of limitations would be six years, not one year. Code of Ala. 1975, § 6-2-34(4).”

396 So.2d at 80.

We checked the record in the Holley case to find the terms of the applicable contract in that case for the purpose of comparing the terms of the policy here with the terms in that policy. We did not find a copy of the contract in the Holley record; therefore, we cannot make a comparison. The pertinent provisions of the insurance contract in the instant case are, however, available for us to review. Those provisions read as follows:

“INSPECTION AND AUDIT. The company ... shall be permitted but not obligated to inspect ... the workplaces, operations, machinery and equipment covered by this policy. Neither the right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking on behalf of or for the benefit of the insured or others, to determine or warrant, that such workplaces, operations, machinery or equipment are safe.”

The terms of this provision of the insurance contract are unambiguous. There is no express agreement by Liberty Mutual to inspect Benham’s equipment or premises, and to construe this provision of the policy as creating an implied warranty would be inconsistent with the express provisions of the contract. See Broyles v. Brown Engineering Co., 275 Ala. 35, 40, 151 So.2d 767, 772 (1963).

Although the appellant alleges that Liberty Mutual did conduct an inspection of the Benham premises and equipment, the record is not clear, and the trial court made no finding, that Liberty Mutual did in fact conduct an inspection. But, assuming that Liberty Mutual, although under no obligation, did, in fact, inspect the premises and equipment, the appellant’s cause of action for the alleged harm she suffered was ex delicto as opposed to ex contractu. Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852 (1966). In this respect, this Court has held:

“This Court has long since taken the position that under certain circumstances, for the breach of a contract there may be either an action of assumpsit or one in tort. That means that when there is a contract expressed to exercise reasonable diligence in the performance of an act, or when there is a specific contract to do an act, a failure to exercise reasonable diligence on the one hand or to do the act on the other gives rise to an action of assumpsit. But when the contract is to exercise reasonable care to perform the act, a failure to exercise such reasonable care may be redressed by either assumpsit or in tort. Mobile Life Ins. Co. v. Randall, 74 Ala. 170; Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459. When the contract does not in terms require reasonable care in doing the act stipulated to be done, the law imposes a duty — but does not imply a contract — to exercise due care in doing the act; and, therefore, when negligence exists in doing that act an action in tort only is available because there is no express or implied contract which is breached. Such is the result of our cases cited above.
‘In the instant case there is no express contract to exercise reasonable care in performing the duties required of the insurer. Therefore, for negligence in the performance of those duties an action in tort only will lie, and then only if the law imposes a duty to exercise due care.

Garig v. East End Memorial Hospital, supra, 279 Ala. at 120-121, 182 So.2d at 854 (quoting Waters v. American Cas. Co., 261 Ala. 252, 258, 73 So.2d 524, 528-529 (1953)).

Consequently, appellant’s claim was barred by the one-year statute of limitations, and the judgment of the trial court was correct.

AFFIRMED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I agree that our holding in this case is controlled by Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852 (1966). For an in depth-discussion of the Garig principle and its application, see Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 278 So.2d 699 (1973) (dissent on another point by Faulkner and Jones, JJ., 291 Ala. at 122,123, 278 So.2d at 706-707). Garig is clear to the point that an alleged breach of an implied contract to exercise reasonable care is but an allegation of the breach of an obligation imposed by law — an action ex delicto. This does not mean that no implied agreement may ever be the basis of an ex contractu action. By the very nature of certain relationships, there may be an implied agreement that, for a consideration, one party becomes obligated to another to perform (or not to perform) a specific act or course of conduct, the breach of which gives rise to a contract action with a six-year statute of limitations. Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969).

To be sure, this rationale bears a close resemblance to “common law pleading” language. But it is much more than that: It is the very essence of the cause of action; and, while the rules of procedure mandate liberality in our construction of pleadings, as against a statute of limitations defense, we must give the Garig principle, which is substantive and not procedural, its intended field of operation. Moreover, the instant case, appropriately, is being reviewed on its facts — on summary judgment — and not on its pleadings. These facts, at most, show only an implied obligation on the part of the insurance carrier to exercise reasonable care in the event it elected to inspect the premises., Thus, a suit claiming breach of that implied duty, filed more than one year after accrual of the cause of action, is barred by the one-year statute of limitations.


author: BEATTY, Justice.

text:
    Dorothy HENDERSON, et al. v. BRIARCLIFF NURSING HOME, et al.
    83-134.
    Supreme Court of Alabama.
    May 25, 1984.

      Scott A. Powell and F. Tucker Burge of Burge, Florie, Powell & Wettermark, Birmingham, for appellants.
    Courtney H. Mason, Jr. and J. Michael Joiner, Alabaster, for appellees.
   BEATTY, Justice.

This is an appeal from an order granting a motion to dismiss based upon non-compliance with Rule 25(a)(1), A.R.Civ.P. We affirm.

Elmon Smitherman was an elderly, allegedly mentally incompetent resident of Briarcliff Nursing Home. While in the care of the nursing home, he suffered an injury which necessitated amputation of his right leg. Ultimately, his sister, Dorothy Henderson, brought an action based upon negligence against the nursing home. On May 28, 1982, she filed the action as “guardian, next friend, and personal representative.”

Smitherman died on June 14, 1982. On November 9, 1982, Briarcliff Nursing Home entered a suggestion of death upon the record. Rule 25(a)(1), A.R.Civ.P. Later, on June 24, 1983, Briarcliff moved to dismiss the action on the ground that, following the suggestion of death, more than six months had transpired without any motion for substitution having been made as provided by Rule 25(a)(1), A.R.Civ.P. Following a hearing, this motion was granted.

Rule 25(a)(1) provides:

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.”

Dorothy Henderson argues that no motion for substitution was necessary in this case for several reasons. She argues that Elmon Smitherman was incompetent in fact, and that she was his “next friend” who handled his affairs. Although he had never been declared incompetent, nevertheless, she maintains, she had b^gun a proceeding to have herself appointed guardian prior to his death. That proceeding was rendered moot when Smitherman died. In effect, therefore, she says, she was Smith-erman’s “personal representative,” and thus was the “proper party” in the lawsuit already, under Rule 17, A.R.Civ.P.

Briarcliff, on the other hand, insists that Smitherman, even if incompetent, was the real party in interest. In this, Briarcliff is correct. The real party in interest is the party possessing the substantive right being asserted. Wright & Miller, Federal Practice and Procedure, Civil § 1541 at 635; Frazer v. Alabama State Policeman’s Association, 346 So.2d 959, 961 (Ala.1977).

The designation of Dorothy Henderson as guardian, next friend, and personal representative did not, ipso facto, make Dorothy the real party in interest. In such a capacity she was only pursuing Smither-man’s right, not her own. Cf. Maples v. Chinese Palace, Inc., 389 So.2d 120, 123 (Ala.1980) (minor is real party in interest when one sues as next friend of minor). Thus, even if Smitherman had been determined to be incompetent, he would have been the real party in interest in the action.

Moreover, Dorothy Henderson was not personal representative before Smither-man’s death. The term “personal representative” includes an “executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.” Code of 1975, § 43-8-1(24). Such a status is judicially conferred, and only upon one first found to be a fit person to serve. Code of 1975, §§ 43-2-20, -40.

This Court has consistently adhered to the principle that “a suggestion of death filed by the attorney for a deceased party [or, under Rule 25(a)(1), by any party] initiates the running of the period for filing a motion for substitution under Rule 25(a)(1).” Brown v. Wheeler, 437 So.2d 521, 523 (Ala.1983). Accord, Starr v. Doctors Hospital, 426 So. 2d 826 (Ala.1983). Consideration of the purpose for Rule 25(a) and its predecessor, Code of Ala. 1940 (Re-comp.1958), Tit. 7, § 153, discloses that this provision for revival of an action was mandatory. Ex parte State ex rel. Hefley, 247 Ala. 207, 23 So.2d 545 (1945). The language of Rule 25(a)(1) is still mandatory:

“Unless the motion for substitution is made not later than six months after the death is suggested ..., the action shall be dismissed as to the deceased party.”

We have no alternative but to affirm the order of the trial court, as it had no alternative but to dismiss the action for the failure of a timely motion for substitution.

Let the judgment be affirmed.

AFFIRMED.

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