author: PER CURIAM.

text:
    Benny G. MERRELL v. The CITY OF HUNTSVILLE, et al. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD; Frank V. Potts, as Chairman; Joe Smitherman, and E.O. Walker, as members of said Board and Jeff C. Mims as Administrator of said Board, and Michael D. Byrd, Intervenor, v. CITY OF HUNTSVILLE, a Municipal Corporation.
    Nos. 83-476, 83-784.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Rehearing Denied in 83-476 Nov. 30, 1984.

      M.U. Griffin of Griffin & Griffin, Huntsville, for appellant Benny G. Merrell in No. 83-476.
    Joe W. Adams, Spec. Asst. Atty. Gen., for Alcoholic Beverage Control Bd.
    Lawrence A. Anderson, Huntsville, for intervenor in No. 83-784.
    Charles H. Younger, Huntsville, for ap-pellee.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for amicus curiae Alabama filed in support of Alabama Retail Ass’n Alcoholic Beverage Control Bd., et al.
   PER CURIAM.

These appeals arise from two cases which were consolidated because their resolution is dependent upon the answer to one question.

Merrell v. City of Huntsville arose when Benny Merrell filed suit against the City of Huntsville seeking a declaratory judgment and a writ of mandamus directing the city to issue him a liquor license. Merrell appeals from a judgment of the Montgomery County Circuit Court in favor of the City of Huntsville.

Alabama Alcoholic Beverage Control Board v. City of Huntsville was initiated when the City of Huntsville filed a declaratory judgment suit against the Board, claiming that it had no legal authority to issue a retail lounge liquor license for a licensee in Madison County not within the city limits of Huntsville. The Board appeals from a judgment of the Montgomery County Circuit Court in favor of the City of Huntsville. This case was transferred from the Court of Civil Appeals to this Court for consolidation with Merrell, pursuant to § 12-3-15, Code of Alabama (1975).

These two cases involve a conflict between Act 75-380, 1975 Ala. Acts, a local Act applying only to Madison County and the City of Huntsville, and the subsequently enacted “Alcoholic Beverage Licensing Code,” Act 80-529,1980 Ala. Acts, codified as § 28-3A-1, et seq., Code 1975, a general law of statewide application. The issue which arises in this appeal is whether the enactment of Act 80-529 repealed Act 75-380 by implication. We hold that Act 75-380 was in fact repealed.

Act 75-380 was enacted in 1975. Its general purpose was to regulate and control the sale of alcoholic beverages in Madison County. The law proscribed the sale of “spirituous or vinous liquors” in Madison County except by ABC stores in the county and except by retail liquor establishments located within the City of Huntsville which were licensed both by the State and by the City. The law also limited the sale of any “malt or brewed beverages” by giving only Board licensees located within the police jurisdiction or city limits of an incorporated municipality in Madison County the power to sell such beverages.

Further, Act 75-380 gave the City of Huntsville the authority to promulgate ordinances and regulations in regard to the licensing and sale of alcoholic beverages, the power to require that licensees obtain separate licenses to sell alcoholic beverages from both the City and the State, and the power to suspend or revoke a license issued by the City.

In 1980, the legislature enacted Act 80-529, entitled “Alcoholic Beverage Licensing Code,” and codified as § 28-3A-1, et seq., Code 1975. This legislation was a general revision of the law regarding the licensing and regulation of the sale of alcoholic beverages in Alabama. Act 80-529 delineates 15 classifications of liquor licenses, the purposes for which such licenses will be issued, the fees to be charged for the licenses, the issuance and renewal process for the licenses, and the necessary steps for suspension and revocation of the licenses. The Act also sets out specific acts relative to the sale, consumption, and transportation of alcoholic beverages which acts are made unlawful, and goes on to prescribe the punishment for those acts.

Appellants Merrell and the Board contend that Act 75-380 is inconsistent with Act 80-529. More specifically, Merrell applied for and was denied a “Class II” lounge retail liquor license from the City of Huntsville. This type of license is authorized by Act 80-529, the general act, but is not allowed under Huntsville’s ordinances adopted pursuant to Act 75-380, the local act. Merrell asserts that Act 75-380 was repealed by 'Act 80-529 and that any Huntsville ordinances promulgated pursuant to the repealed Act are invalid.

This court has stated the following about the effect of the enactment of a general law where there is a pre-existing local law:

When provisions of general law, applicable to the entire state, are repugnant to provisions of a previously enacted special law, applicable in a particular locality only, passage of the general law does not operate to repeal the special law, either in whole or in part, unless repeal is provided for by express words or arises by necessary implication. [Citations omitted.]

Vaughan v. Moore, 379 So.2d 1240 (Ala. 1979). This analysis would lead to the conclusion that Act 75-380 was repealed by Act 80-529 only if the two laws were incompatible and only if the latter statute contains express words of repeal or if the content of Act 80-529 mandated the repeal of the inconsistent local act by necessary implication.

Act 80-529 contains a “repealer” clause (Section 27) expressly repealing certain enumerated sections of the Alabama Code. There is no express mention of Act 75-380. The clause does state generally, however, that “[a]ll laws or parts of laws which conflict or are inconsistent with this Code are hereby repealed.” This language comprises what is known as a general repealing clause, an insertion of dubious value. One authority describes this type of repeal-er in this way:

An express general repealing clause to the effect that all inconsistent enactments are repealed, is in legal contemplation a nullity. Repeals must either be expressed or result by implications. ... [A] general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed. It cannot be determinative of an implied repeal for it does not declare any inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict is found under application of the rules of implied repeals. [Footnotes omitted.]

1A Sutherland, Statutes and Statutory Construction § 23.08 (Sands, 4th ed. 1972). Thus, since the repealing clause in Act 80-529 does not expressly repeal Act 75-380, any repeal would arise only by necessary implication.

Repeal of a statute by implication is not favored, however, and a prior act is not repealed unless provisions of a subsequent act are directly repugnant to the former. Ex parte Jones, 212 Ala. 259, 102 So. 234 (1924). The provisions of Act 80-529 would have to be irreconcilable with the provisions of Act 75-380 for the earlier statute to be deemed repealed by implication.

Ex parte Jones, supra, indicates that legislative intent is a crucial factor in determining whether two statutes are irreconcilable so as to require repeal. In Shepherd v. Clements, 224 Ala. 1, 141 So. 255 (1931), this Court stated that the presumption against a finding of implied repeal gives way to a plain manifestation of contrary legislative intent. The Court stated this:

The question is one of intention which may be made to appear by the subject-matter with which the general act is concerned, by the surrounding circumstances, by other legislation on the same subject, and the purpose to be accomplished. Thus, where the clear general intent of the Legislature is to establish a uniform system throughout the state, the presumption must be that local acts are intended to be repealed. [Citation omitted.]

224 Ala. at 2, 141 So. at 256. In this regard, Sutherland states the following:

The intent to repeal all former laws upon a subject is made apparent by the enactment of subsequent comprehensive legislation establishing elaborate inclusions and exclusions of the persons, things and relationships ordinarily associated with that subject. Legislation of this sort which operates to revise the entire subject to which it relates, by its very comprehensiveness gives strong implication of a legislative intent not only to repeal former statutory law upon the subject, but also to supersede the common law relating to the same subject. [Footnotes omitted.]

Sutherland, supra, at § 23.13. If then, the Alcoholic Beverage Licensing Code is considered “comprehensive legislation” toward a “uniform system” of liquor licensing throughout this state, and if Act 75-380 is inconsistent with Act 80-529, it would follow that Act 75-380 is repealed by implication according to legislative intention.

In both of these cases the trial court found that Act 80-529 did not impliedly repeal Act 75-380. Each final order indicates that there is no indication of an intent of the legislature to enact a uniform system of alcohol licensing regulation. We disagree.

The Alcoholic Beverage Licensing Code is an extensive and comprehensive revision of the law regarding the licensing of alcoholic beverages in Alabama. Act 80-529 changes licensing laws originally enacted during the 1936-1937 legislative session. It is likely that in 1980 the legislature considered some of the original provisions antiquated. After considering the Shepherd factors of 1) the subject matter of this legislation, 2) the surrounding circumstances, 3) other legislation in this area, and 4) the purpose to be accomplished by the law, we conclude that the legislature intended Act 80-529, the Alcoholic Beverage Licensing Code, to provide a uniform and comprehensive body of liquor licensing law.

Further, we find that there is incompatibility between the two acts in issue. Not only is there obvious inconsistency in the area of what types of licenses are available, the dispute which forms the factual basis of each case here on appeal, but there are other inconsistencies in the Acts, including a major difference in the provisions for approval and issuance of liquor licenses and the provisions for revocation and suspension of such licenses.

Since there are inconsistencies between Act 75-380, a local act of application to Huntsville and Madison County, and Act 80-529, a general act of statewide application, the former is now held repealed by implication by the latter. This conclusion is based on the additional determination that the legislature intended the Alcoholic Beverage Licensing Code to provide a uniform system of liquor licensing throughout the State.

For all of the above-stated reasons, the judgments in these cases are hereby reversed and the cases remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Charles SALES. (Re Charles Sales v. State of Alabama).
    83-823.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Wesley M. Lavender, Decatur, for petitioner.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

This case involves denial of a criminal defendant’s pleas of former jeopardy. We granted certiorari to review the judgment of the Court of Criminal Appeals, which affirmed petitioner’s conviction, without writing an opinion. 447 So.2d 873. Sales petitioned for rehearing, and pursuant to Rule 39(k), Ala.R.App.P., requested that the court set out certain facts. We have considered these facts in arriving at our decision in this case.

On August 11, 1982, Charles Sales was arraigned in the Circuit Court of Morgan County and charged with second degree theft, Code 1975, § 13A-8-4, arising from his asportation of meat from a grocery store. Sales, who is indigent, was represented by counsel appointed the day of arraignment, with whom he had only a brief conversation. He entered a not guilty plea.

Trial was held before a jury on February 24,1983, during which testimony was elicited that Sales had previously pleaded guilty to, and been convicted of, menacing, third degree criminal mischief, and third degree criminal trespass, Code 1975, §§ 13A-6-23, 13A-7-23, 13A-7-4, which convictions Sales claims arose out of the same occurrence as the charged second degree theft.

Defense counsel at trial raised the former jeopardy question and thereafter filed three pleas in which he claimed the defendant was twice put in jeopardy. He claimed that he had been unaware of his client’s prior convictions at the time of the arraignment. The trial court denied the pleas, holding that “the plea of autrefois convict or former jeopardy is waived unless it is pleaded at or before the plea of not guilty is entered.” The court also denied Sales’s motion for judgment of acquittal. The jury returned a verdict of guilty, and Sales was sentenced, as a habitual felony offender, to fifteen years in prison.

Sales appealed to the Court of Criminal Appeals, which affirmed without opinion, and, as we have already stated, he then petitioned for rehearing and, pursuant to Rule 39(k), Ala.R.App.P., requested that court to set out certain facts. His petition for rehearing was denied, 453 So.2d 10, and he petitioned here for certiorari, which we granted.

The dispositive issue before this Court is whether the trial court erred to reversal in failing to consider Sales's pleas of former jeopardy. We find that the trial court erred in its reasoning. Therefore, we reverse and remand.

Sales, in his brief, concedes that the general rule, which was relied upon by the trial judge, is that a plea of autrefois convict, or prior conviction, is untimely when it is filed after a plea of not guilty has been entered. Williams v. State, 348 So.2d 1113 (Ala.Cr. App.), cert. denied, 348 So.2d 1116 (Ala.1977); see also Richmond v. State, 437 So.2d 612 (Ala.Cr.App.1983). Nevertheless, Sales contends that the general rules should not apply here, and he relies upon Baldwin v. State, 47 Ala.App. 136, 251 So.2d 633 (1971), which, he asserts, is dis-positive of the issue.

In Baldwin, supra, as in the present case, the defendant was an indigent, who was represented by counsel appointed shortly before arraignment. After a brief conversation with his client, during which the defendant denied all guilt, counsel entered a plea of not guilty on his client’s behalf. Later that day, he learned of the defendant’s prior conviction arising from the same transaction and immediately filed a plea of former jeopardy. The trial court, after allowing the plea to be entered, struck it ex mero motu, and proceeded with trial, which resulted in a conviction. The Court of Criminal Appeals noted that it has long been recognized that pleas in abatement and special pleas, such as a plea of former jeopardy, must be filed either before, or simultaneously with, a plea of not guilty, but added:

“In this case appellant was indigent and counsel was appointed to represent him on the day of arraignment. After a brief conversation with his client a plea of not guilty was entered. That same day after counsel became aware of the former conviction, pleas raising that issue were filed. These pleas were meritorious on their face and raised both state and federal constitutional rights which if proven would end the prosecution.
“Under these circumstances, the appellant should have had the opportunity to have been heard on his pleas of former jeopardy. The judgment appealed from is, therefore, due to be reversed and the cause remanded.”

47 Ala.App. 141-42, 251 So.2d 638.

The state would have us distinguish Baldwin from the present case because, unlike Baldwin, in which the plea was filed the day of arraignment, the present plea was not filed until six months after the guilty plea was entered. We do not consider this a basis for distinction. Here, just as in Baldwin, defense counsel was unaware that Sales had a previous conviction which would give rise to a plea of former jeopardy, and, just as in Baldwin, immediately upon learning of the prior conviction, he entered his pleas. We do not believe, as a general principle of law, that defense counsel, and more importantly, his client, should be penalized merely because this information came six months after, rather than on the day of, arraignment.

The state argues that the record does not support the inference that the three previous convictions may have arisen out of the same transaction as the theft. Even though there is some evidence that each offense occurred at the time of the theft, we are persuaded that the state may be correct in arguing that, because the prior convictions and the theft were not identical offenses, and none of the prior convictions was for a lesser offense included in the theft, Sales’s pleas of former jeopardy were without merit and were due to be denied. Nevertheless, we cannot hold, as a matter of law, that Sales’s pleas of former jeopardy did not have merit; therefore, we remand the cause to the Court of Criminal Appeals with directions to that court to consider the facts set forth by Sales and determine whether the principles of former jeopardy are applicable.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . The following facts were submitted pursuant to Rule 39(k), Ala.R.App.P.:
      "On July 25, 1983, Henry Patterson, the manager of the Kroger store in Hartselle, Alabama, was at the store at approximately 7:30 P.M. and saw the Appellant enter the store. Mr. Patterson stated that when he saw the Appellant enter the store that he was not carrying anything in his hands. He testified that he next saw the Appellant near the deli part of the store and that he was carrying a paper sack with the name Hyde Park on it. Mr. Patterson stated that the name Hyde Park is a trade name for Piggly Wiggly grocery stores. The witness further testified that when the Appellant saw him watching the Appellant that the Appellant went to a cashier and picked up and paid for a National Enquirer magazine and when he started toward the Appellant he asked the Appellant what was in the bag, whereupon the Appellant stated ‘oh, no, You ain’t taking me in.’ Mr. Patterson stated that there was a struggle with the Appellant and that he did some damage to one of the doors when he tried to run from the store but that he and another employee apprehended the Appellant. He stated that the Appellant had two (2) porterhouse steaks stuck in his pants and that there were two (2) t-bone steaks and seven (7) sirloin steaks in the sack that the Appellant dropped on the floor as he began to run. The State marked a photograph that the witness identified as being a photograph of the steaks that were in the sack and in the Appellant’s pants.
      “The State, over the objection of the Appellant asked the witness the total amount of the steaks that were in the sack and on the Appellant’s person and the witness answered 168.85. Patterson testified on cross examination that he paid the Kroger store $40.00 for the steaks after they had been frozen for some time.
      "On re-cross examination by the Appellant the witness testified that he had a warrant sworn for the Appellant and that Appellant had plead guilty to some charges in the City of Hartselle Municipal Court. The Appellant’s attorney called the Appellant who testified that he was in fact convicted of some offenses in Hartselle that arose out of the same transaction as this case.
      "The Appellant filed three (3) pleas of autre-fois convict and the Court overruled each stating that they were not providently filed because the Defendant had knowledge of the prior convictions and that the Appellant had entered a plea of not guilty before the pleas were filed. Appellant's attorney stated that the Appellant’s plea of not guilty was entered on the day of arraignment, the same day that he was appointed to represent the Appellant, and that he was called on to plead after only having a short time to confer with the Appellant.
      “The State called one other witness, Tim Shelton, who testified that he was an employee of Kroger Company and was working on the night in question. He testified that he saw the Appellant and that he was there when Mr. Patterson apprehended the Appellant and that he helped Mr. Patterson stop the Appellant from leaving the store. He further stated that he saw what was in the bag that the Appellant had been carrying and stated that the bag contained several packages of meat.
      "The State rested its case and Appellant made a motion for judgment of acquittal which was overruled by the Court.”
      “The Appellant rested without putting on any evidence and the case was submitted to the jury who found the Appellant guilty as charged in the indictment. After a sentencing hearing the Court determined that the Appellant was a habitual offender and sentenced him to fifteen (15) years. The Appellant then gave notice of appeal.”

      . "§ 13A-6-23. Menacing.

      "(a) A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.
      “(b) Menacing is a Class B misdemeanor.” “§ 13A-7-23. Criminal mischief in the third degree.

      "(a) A person commits the crime of criminal mischief in the third degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he has such a right, he inflicts damages to property in an amount not exceeding $250.00.
      “(b) Criminal mischief in the third degree is a Class B misdemeanor.”
      "§ 13-A-7-4. Criminal trespass in the third degree.

      "(a) A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.
      "(b) Criminal trespass in the third degree is a violation.”

      . Temporary Rule 16.3, Alabama Rules of Criminal Procedure, also requires that the defense of former jeopardy be raised at or before arraignment.


author: TYSON, Judge.

text:
    Charles SALES v. STATE of Alabama.
    8 Div. 969.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
   TYSON, Judge.

Charles Sales was originally indicted for theft in the second degree in violation of § 13A-8-4, Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and he was sentenced to 15 years’ imprisonment as a habitual felony offender.

On appeal, this court affirmed this appellant’s conviction without opinion. 447 So.2d 873. The Alabama Supreme Court granted certiorari to determine whether the trial judge had committed reversible error by failing to consider the appellant’s plea of former jeopardy. In order to determine whether the trial judge did err in his consideration of the pleas of former jeopardy, the Supreme Court now remands this appellant’s case to this court to determine if the appellant’s pleas of former jeopardy are meritorious. See Ex Parte Sales, 460 So.2d 1252 (Ala.1984).

The facts of this case are set out in the Supreme Court’s opinion in footnote one and we, therefore, find it unnecessary to restate such facts.

T

Before the trial of this case, the appellant was convicted in Municipal Court of menacing (in violation of § 13A-6-23, Code of Alabama 1975), criminal mischief in the third degree (in violation of § 13A-7-23, Code of Alabama 1975) and criminal trespass in the third degree (in violation of § 13A-7-4, Code of Alabama 1975). Each of these three convictions arose out of the same fact situation as the appellant’s conviction which is now before this court.

While the Double Jeopardy Clause of the United States Constitution prevents a person from being prosecuted twice for the same offense, it does not prohibit one from being prosecuted for different offenses which arise out of the same transaction. The test to be applied to determine if the Double Jeopardy Clause was violated in this case and the question before us is whether the appellant’s convictions for criminal trespass, criminal mischief and menacing are “precisely the same in law and fact” as the appellant’s theft conviction now before this court. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973). (Emphasis added).

“§ 13A-8-4. Theft of property in the second degree.
“(e) The theft of property which exceeds $25.00 in value, aná which is taken from or in a building where said property is sold or stored, constitutes theft of property in the second degree.”
“§ 13A-6-23. Menacing.
“(a) A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.”
“§ 13A-7-23. Criminal mischief in the third degree.
“(a) A person commits the crime of criminal mischief in the third degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he has such a right, he inflicts damages to property in an amount not exceeding $250.00.”
“§ 13A-7-4. Criminal trespass in the third degree.
“(a) A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.”

The key to our determination is whether each of these offenses require proof of a fact which is not required for the other offenses. Brown v. State of Alabama, 619 F.2d 376 (5th Cir.1980); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The essential element of theft of property in the second degree is knowingly obtaining or exerting unauthorized control over the property of another with the intent to deprive the owner of possession of that property. There is no requirement that this element be proved for one to be convicted of menacing, criminal mischief in the third degree or criminal trespass in the third degree.

It is not necessary to prove that a defendant placed the owner of the property or anyone else in fear of imminent physical injury to sustain a conviction for theft in the second degree. Thus, theft in the second degree and menacing are separate and distinct offenses.

Damage to the property taken is not an element of theft in the second degree. Thus, criminal mischief and theft in the second degree are separate and distinct offenses.

Likewise, there is no need to prove that a person has unlawfully entered or remained on premises when he took the property. Clearly, criminal trespass and theft in the second degree are separate and distinct offenses. Racine, supra.

Therefore, even though the appellant was entitled.to be heard on his pleas of former jeopardy, this court finds those pleas to be wholly without merit.

For the reasons stated above, this ease is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Van JOHNSON & Marilyn Jacobs Johnson v. Thomas CLEVELAND.
    No. 83-451.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    Dave Beuoy, Russellville, for appellants.
    David Neal of Fine & Associates, Rus-sellville, for appellee.
   ALMON, Justice.

Van and Marilyn Johnson, appellants, brought suit to cancel, because of fraud, a contract which they had entered into with Thomas Cleveland. Cleveland counterclaimed against the Johnsons for damages for breach of the contract and for conversion.

The case was tried in the circuit court without a jury, and judgment was entered denying all claims. Motion for new trial was overruled. This appeal only concerns the claim of the Johnsons.

In April of 1981 the Johnsons contracted in writing to purchase a grocery store in Belgreen, Alabama, from Cleveland. Gasoline pumps and tanks associated with the grocery store were located on property owned or claimed by other parties, and the Johnsons were unable to obtain liability insurance to cover the exposure created by the use of the pumps and tanks.

Van Johnson testified that he asked Cleveland if he had insurance to cover the items and Cleveland responded in the affirmative. Cleveland denied that he told Johnson that he had insurance. Johnson testified that he entered into the contract relying on Cleveland’s statements regarding insurance.

The judgment entered by the trial court did not contain findings of fact. In the absence of specific findings of fact, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance of the evidence. In addition, a strong presumption of correctness is indulged in favor of the trial court regarding its ruling on a motion for new trial. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Moore, 435 So.2d 712 (Ala.1983).

There is ample evidence to support a finding that fraud did not attend the negotiations. In addition to Cleveland’s denial of any statement concerning insurance, Johnson testified that neither he nor Cleveland owned the tanks and pumps. They were owned by Sibley Oil Company. He further testified that Cleveland never represented that he owned more than the 36-by 40-foot lot on which the building stood, which lot was described in the written contract. It is a cardinal principle that, where testimony is presented ore tenus, the findings of the trial court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

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

AFFIRMED.

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


author: BEATTY, Justice.

text:
    FIRST BAPTIST CHURCH OF GRAYSON VALLEY, INC. v. NATIONWIDE BOND, INC., and Insurance Company of North America, as corporations, and R. Frank Ussery, Director, Alabama Securities Commission, as an individual.
    No. 83-895.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    Rehearing Denied Nov. 30, 1984.

      Herbert W. Stone, Birmingham, for appellant.
    Gould H.K. Blair, Birmingham, for appel-lee Nationwide Bond, Inc.
    William C. Wood of Norman, Fitzpatrick & Wood, Birmingham, for appellee Ins. Co. of North America.
   BEATTY, Justice.

Plaintiff church appeals from an adverse judgment in its declaratory judgment action against Nationwide Bond, Inc. (Nationwide), Insurance Company of North America (INA), and R. Frank Ussery, Director, Alabama Securities Commission, individually. The action sought recovery under Code of 1975, § 8-6-3(c), on the theory that that code section afforded a remedy to the public in general against a surety for the fraudulent sale of securities, whether or not the liability of the surety was conditioned by the terms of the surety’s bond. The trial court denied the relief sought. We affirm.

This is the third proceeding arising out of the operative facts. In the first proceeding, filed in 1980, the plaintiff sued one Samuel B. Shell and Nationwide for damages, alleging that Shell had made fraudulent representations in connection with the issuance and sale of church bonds. INA was not made a party to those proceedings. That case was tried to a jury, which returned a verdict against Shell alone. The verdict, in fact, expressly exonerated Nationwide; in any case, no appeal was taken from the judgment entered on that verdict, which was entered February 11, 1982.

Later, on April 21, 1982, plaintiff sued Nationwide and INA on what the church described as a “motion to enforce liability of surety.” This action sought to compel the defendants to pay $10,000.00 under the bond required by Code of 1975, § 8-6-3(c). That statute states, in pertinent part:

“(c) Before any dealer registration shall be effective under this article, such dealer shall enter into a bond of not less than $10,000.00, which said bond shall be payable to the state of Alabama, shall be executed by the dealer and a corporation qualified to do business as a surety company in the state of Alabama and shall be filed with the securities commission. Said bond shall be in such form as the commission shall from time to time designate and shall be conditioned upon the faithful accounting of all moneys and securities of another and for the payment of any judgment entered by a court of competent jurisdiction against such dealer or agent of such dealer, one or both, in any civil action in Alabama based upon fraud or misrepresentation in the sale in Alabama of any security. Any original purchaser of securities from or through any such registered dealer or other person damaged by any breach in the conditions of said bond shall have a right of action upon said bond for the damages suffered thereby. No action may be maintained to enforce any liability under the bond unless brought within two years after the sale or other action upon which such action is based.”

It was disclosed in that second action that INA was the surety on the statutory security dealer’s bond, with Nationwide, a registered securities dealer, as the principal. The condition of that bond was:

“[If] said principal ... shall promptly and faithfully pay any judgment rendered against it ... for any fraud or misrepresentation in the sale of securities sold or dealt in by said principal under the above-mentioned registration ... then this obligation shall be null and void....” First Baptist Church of Grayson Valley, Inc. v. Shell, 439 So.2d 29 (Ala.1983).

The trial court in that case prepared a statement of the proceedings as follows:

“ ‘Does Section 8-6-3(c) of Code of Alabama 1975, make the Insurance Company of North America, and/or Nationwide Bond, Inc. liable to the plaintiff under the provisions and conditions of their bond (Exhibit 1 of plaintiff-appellant’s “Motion to Enforce Liability of Surety”) though the jury has found as a question and matter of fact, that the defendant, Samuel B. Shell, was not acting in the line and scope of his employment or agency for either Nationwide Bond, Inc., nor Insurance Company of North America, at the time and place of the events made the basis of the suit, Case No. CV 80 01782?’ ” 439 So.2d at 30.

The trial court decided that issue against this plaintiff and it appealed. See First Baptist Church of Grayson Valley v. Shell, 439 So.2d 29 (Ala.1983). This Court held in that case that: “Insurance Company of North America is only liable for payment of any judgment that Nationwide should fail to pay. There is no judgment against Nationwide.”

This Court also dismissed that appeal for. reasons not relevant here.

Plaintiff then brought this third proceeding on January 11, 1984, suing Nationwide for the third time and INA for the second time, asking for a declaration that § 8-6-3(c) is to be interpreted to insure a recovery, represented by the amount of the bond, against a security dealer whose agent has committed fraud.

The trial court in this third lawsuit held this:

“Whatever liability Shell had to the Plaintiff Church, it has been adjudicated in the action and appeal captioned First Baptist Church of Grayson Valley, Inc. v. Samuel B. Shell, Nationwide Bond, Inc. and Insurance Company of North America.... That action, after trial by jury in the trial court, resulted in a verdict and judgment against Shell alone and in favor of Nationwide on February 11, 1982. The issue of whether Shell was an agent of Nationwide in the events here has been finally adjudicated against the Church. The liability of Insurance Company of North America to the Church has been likewise adjudicated.”

The trial court then granted defendants’ motion to dismiss. It appears that in considering the motion the trial court considered matters outside the pleadings. Thus, the motion was considered as one for summary judgment. Rule 12(b), A.R.Civ.P. In any case, no objection was made with respect to the procedure utilized by the trial court in making its ruling. Chestnut Hills Civic Association, Inc. v. Dobbins, 361 So.2d 1043 (Ala.1978).

Plaintiff cannot prevail in this appeal for either of two reasons. For one, the doctrine of res judicata bars its recovery in this lawsuit. The thrust of plaintiff’s present action, confirmed by the allegations of its claim under § 8-6-3(c) is that Shell was the “agent” of Nationwide in the sale of the bonds in question. But that question was decided against the plaintiff in the very first lawsuit when the jury exonerated Nationwide while finding against Shell. That verdict in favor of Nationwide explicitly exonerated Nationwide and thus was directly contrary to plaintiff’s allegations that Shell was acting in the line and scope of his employment by Nationwide. Plaintiff did not appeal the judgment entered upon that verdict and it became final. Thus, no judgment was ever entered against any “dealer or agent of such dealer,” as the statute clearly requires.

Moreover, in First Baptist Church of Grayson Valley, supra, this Court recognized as a matter of law that INA, Nationwide’s surety, was “only liable for payment of any judgment that Nationwide should fail to pay. There is no judgment against Nationwide.” Any question of the liability of INA, therefore, has also been judicially determined.

The essential elements of res judi-cata have been satisfied. These are that there has been a prior judgment on the merits (of Nationwide’s and INA’s liability) by a court of competent jurisdiction; identity of issues (as explained above); and substantial identity of parties. Desroches v. Ryder Truck Rental, Inc., 429 So.2d 1010 (Ala.1983). The parties were not rendered different by the inclusion of Ussery as an “interested party” under the declaratory judgment practice. See Code of 1975, § 6-6-227. For the purposes of res judica-ta, the joinder of additional parties does not prevent the bar to a later suit if the party against whom res judicata is asserted, the church here, was a party formerly. AAA Equipment & Rental, Inc. v. Bailey, 384 So.2d 107 (Ala.1980); Geer Bros. v. Crump, 349 So.2d 577 (Ala.1977).

The other reason plaintiff cannot prevail is simply that its action was not timely. The sale of securities complained of occurred during 1977. Plaintiff bases its cause of action on the provisions of § 8-6-3(c). That subsection expressly provides:

“No action may be maintained to enforce any liability under the bond unless brought within two years after the sale or other action upon which such action is based.”

This action was brought on January 11, 1984, almost seven years after the events made the basis of the defendants’ liability, and thus this action could not be maintained. The plaintiff’s contention that its cause of action against the dealer and INA did not arise until the jury returned a verdict against the agent, and thus that this action was timely, is untenable. Indeed, that contention supports the conclusion of this Court in First Baptist Church of Grayson Valley, supra, quoted above.

Let the judgment be affirmed.

AFFIRMED.

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

      . Defendant Ussery, upon his' motion, which met with no objection, was realigned as a party plaintiff.


author: EMBRY, Justice.

text:
    James E. COBB and Darthie M. Cobb v. Curtis B. ALLEN and Bennye Bernice Allen.
    82-1053.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      Herman D. Padgett and F. Lenton White II, Mobile, for appellants.
    Thomas J. Stein, Mobile, for appellees.
   EMBRY, Justice.

This is a declaratory judgment action brought under the provisions of § 6-6-221, Code 1975. The issue before the trial court was the existence and extent of an easement. That court declared the legal rights of the parties regarding the easement and granted injunctive relief requested by the plaintiffs, Mr. and Mrs. Allen.

The trial court, in its final order, set forth the salient facts:

“The Plaintiffs purchased certain real property located in Mobile County, Alabama on or about December 30, 1967, specifically, Lot 2, Camack’s Fowl River Acres, as recorded in Map Book 14, Page 11 of the records in the Office of the Judge of Probate of Mobile County, Alabama. The deed conveying this property was recorded in Real Property Book 801, Page 764 of the records of the Judge of Probate of Mobile County, Alabama, and the grantors in said deed specifically conveyed to the Plaintiffs the right and privilege to erect a small wharf in the vicinity of the Southward end of the canal turning basin which is located Northward from the intersection of David Drive and George Circle.
“Plaintiffs thereafter purchased an adjacent parcel of real property on April 17, 1974, said property described as Lot 3 of Camack’s Fowl River Acres, according to plat thereof recorded in Map Book 14, page 11 of the records in the Office of the Probate Court of Mobile County, Alabama. The deed conveying this lot was recorded in Real Property Book 1345, Page 200 of the records in the Office of the Judge of Probate of Mobile County, Alabama and the Grantors in said deed specifically granted to the Plaintiffs the right of joint use with other lot owners of Camack’s Fowl River Acres of the canal shown on said plat.
“The testimony revealed in open Court that the Defendants have erected a fence approximately 10 feet in height along their property line, which fence was located between the Plaintiff’s homeplace and the canal turning basin referred to in the deeds referred to above. The testimony further revealed that the Plaintiffs had been using the canal basin for approximately fifteen years prior to the time that the fence was erected....”

Based on these, and other facts, the trial court found the Allens have an express easement to use property owned by Mr. and Mrs. Cobb to gain access to and from a canal turning basin, and to travel across the property by car in order to launch a boat. Pursuant to the Allens’ prayer for injunctive relief, that court ordered that the Cobbs not interfere with the Allens’ use of the easement. The trial court further ordered the Cobbs to provide a passageway through their fence large enough for a car and/or boat.

On appeal, Mr. and Mrs. Cobb contend the trial court did not logically or reasonably construe the Allens’ easement, and that it improperly refused to apply the doctrine of “unclean hands” to prohibit the granting of equitable relief to the plaintiffs.

The Cobbs correctly argue that inequitable conduct may, under certain circumstances, prevent the exercise of the discretionary power of a trial court to grant a declaratory judgment. That doctrine may be applied, for instance, when the character of the underlying action is equitable. Because the Allens’ complaint prayed for injunctive relief, this doctrine could conceivably come into play in the instant case. See Buromin Co. v. National Aluminate Corp., 70 F.Supp. 214 (D.Del.1947); and Reid v. City of Birmingham, 275 Ala. 629, 150 So.2d 735 (1963).

It appears clear, however, from the trial court’s order, it was not convinced the Allens were guilty of improper conduct regarding the subject matter of the suit. The record is replete with the allegations of both appellants and appellees of inappropriate behavior. The alleged facts are greatly controverted.

This case was presented ore tenus. The trial court had an opportunity to observe the demeanor, and to determine the credibility of the witnesses. We do not find its determination regarding this factual issue plainly erroneous and, therefore, cannot disturb its conclusion.

Second, Mr. and Mrs. Cobb contend the trial court erred in its construction of the easement. As noted by that court in its finding of facts, there are two relevant conveyances to the Allens. First, when they purchased Lot 2, in an area known as Camack’s Fowl River Acres, the deed specifically conveyed to them the right and privilege to erect a small wharf in the vicinity of the south, end of the canal turning basin. Later, the Allens bought an adjacent lot (Lot 3). The deed of conveyance for that parcel specifically granted a right of joint use with other lot owners in Camack’s Fowl River Acres of the canal in question.

Testimony revealed the Allens used the canal turning basin referred to above for approximately fifteen years prior to the time the Cobbs erected a 10-foot fence which obstructed passage to the canal.

The determination of the extent and reasonableness of use of an easement created by express grant involves a number of basic principles: If the language of the grant is clear and free from doubt, such language is not the subject of interpretation. If subject to interpretation, the extent of the easement depends on the intention of the parties as gathered from the terms of the deed and the situation of the land. If there is further doubt as to the intent, it may be determined from the practical construction of the grantor and the grantee and their successors in title. A grant of easement will be construed in favor of the grantee. See Moss v. Vance, 288 Ala. 224, 259 So.2d 252 (1972); Ellard v. Goodall, 203 Ala. 476, 83 So. 568 (1919); 3 A.L.R.3d 1256, “Easements — Private Way — Reasonable Use.”

After carefully reviewing the record, we cannot conclude the trial court improperly applied the above guidelines in defining the Allens’ easement. Appellants have certainly not overcome the strong presumption in favor of the correctness of the trial court’s decision which we are required to indulge in a case presented ore tenus. Therefore, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

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


text:
    Wilson Dale THOMPSON v. HARTFORD ACCIDENT & INDEMNITY COMPANY.
    82-1067.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      J. Doyle Fuller, Montgomery, and Michael D. Cook, Lanett, for appellant.
    W.F. Horsley, Opelika, for appellee.
   EMBRY, Justice.

This is a declaratory judgment action.

The circumstances from which it arises are as follows: Leroy Dean bought a vehicle from Scott Langley for use in the pulpwood business. A bill of sale evidencing the transfer was prepared. Langley took a mortgage on the vehicle and filed a UCC-1 financing statement. Several months later, Dean decided to quit the pulpwood business and sell his truck.

William Scott Yeasley and Dean discussed the possibility of Veasley’s acquiring the truck and taking over the pulpwood business. Yeasley subsequently approached Langley to inquire about the possibility of his assuming Dean’s mortgage. Langley told Veasley he could not make a decision prior to discussing the matter with Dean. According to Veasley, Langley did, however, tell him he could go ahead and use the truck and begin operations prior to Langley’s completion of the “paperwork.”

Several weeks later, and before title to the truck was transferred to Veasley, he was operating the truck when it collided with another vehicle. Wilson Dale Thompson and Johnnie L. Yates were injured in the accident. Both subsequently brought suit against Veasley. Yates sued Veasley, claiming damages for personal injury. He also named his own uninsured motorist insurance carrier, American Interstate Company of Georgia (American Interstate), as a defendant. Thompson sued Veasley and named Scott Langley as a codefendant. He claimed Langley was liable as the owner of the vehicle. The trial court granted summary judgment in favor of Langley.

Subsequently, Langley’s insurance carrier, Hartford Accident and Indemnity Company, filed this declaratory judgment action. It sought a determination of no coverage or duty to defend Veasley in the action filed against him by Thompson. Langley’s policy of insurance extended coverage against liability for personal injuries arising out of the “ownership, maintenance and use” of a motor vehicle “owned, hired or borrowed” by Langley. The same policy of insurance contained an omnibus clause which extended the coverage of the policy to any person using such “owned, hired or borrowed” vehicle with the permission of the named insured. Hartford named Veas-ley, Thompson, and Langley as defendants to the suit. It later amended to strike Langley as a defendant and to name, as additional defendants, Johnny and Deborah Yates and American Interstate Insurance Company of Georgia.

American Interstate filed a counterclaim against Hartford, alleging Veasley was entitled to coverage under the policy issued by Hartford and requesting that the court declare Veasley was not an uninsured motorist at the time of the accident.

After hearing all the evidence, the trial court determined Langley did not own the vehicle Veasley was driving when the accident occurred and Veasley did not qualify as an additional insured under Langley’s liability insurance policy.

Thompson raises two issues on appeal from the trial court’s declaratory judgment. First, he contends the trial court erred in determining the existence of a justiciable controversy. Second, he alleges error in that court’s determination that Hartford’s policy does not extend coverage to Veasley under the facts of this case.

I

Thompson strongly contends that Hartford has not presented a justiciable controversy. He argues there is no justiciable controversy because Veasley has not requested that Hartford defend him in the actions filed by Yates and Thompson. Hartford contends, and we agree, that proof of justiciable controversy is evidenced by the pleadings in this action.

It is well settled that a declaratory judgment action may be brought by a liability insurer to have a court declare whether or not it is liable to defend a suit. United States Fidelity & Guaranty Co. v. Hearn, 233 Ala. 31, 170 So. 59 (1936). See Federated Guaranty Life Ins. Co. v. Bragg, 393 So.2d 1386 (Ala.1981), for a complete discussion of the declaratory judgment action’s use relative to insurance policy disputes. Even in regard to insurance policy disputes, however, the plaintiff in a declaratory judgment action must prove the existence of a justiciable controversy. This is because the declaratory judgment statutes, at §§ 6-6-220 to 6-6-232, Code 1975, do not empower a court to decide abstract propositions or to give advisory opinions. Wallace v. Burleson, 361 So.2d 554 (Ala.1978). Thompson contends that because Veasley has not requested a defense from Hartford, the trial court’s determination in this case amounts to an advisory opinion as to proper legal relations should a controversy arise regarding Hartford’s liability.

A “justiciable controversy” is a controversy in which a claim of right is asserted against one who has an interest in contesting it. The record in this case indicates the defendants to Hartford’s declaratory judgment action had an interest in contesting it. In answer to Hartford’s complaint, for instance, Thompson states:

“Defendant Thompson contends that the vehicle driven by Defendant Veasley was under the control of and the legal property of Scott Langley d/b/a Langley Pulpwood and further, that the circumstances under which the Defendant Veasley was operating the motor vehicle at the time of the accident were such as to create liability for coverage on the part of Plaintiff.”

Further evidence of justiciability is American Interstate’s counterclaim against Hartford.

It is clear that the personal injury plaintiffs have an interest in Hartford’s policy, because Alabama’s Judgment Creditor Statute, § 27-23-2, Code 1975, provides that when a final judgment is recovered against an insured defendant in a personal injury suit, the judgment creditor may proceed against the defendant’s insurance company for satisfaction of the judgment. At least one of the plaintiffs, Thompson, is actively contending Veasley is insured by Hartford.

Because Hartford has property rights which may be affected by the proceedings of Yates and Thompson against Veasley and the parties have a bona fide divergence of opinion as to the question whether Veas-ley is an insured under the terms of its policy, we agree with the trial court that a justiciable controversy is here presented.

II

Second, we consider whether the trial court erred to reversal in determining that Veasley was not an insured in the Hartford policy.

The trial court properly considered both documentary evidence of ownership and facts presented by the parties regarding Langley’s possession and control of the vehicle. All these facts are relevant to a determination of ownership of a motor vehicle. See, e.g. § 32-7-2(8), Code 1975; Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183 (1973); Stanley v. Hayes, 276 Ala. 532, 165 So.2d 84 (1964); Gay v. Huguley, 33 Ala.App. 483, 34 So.2d 712 (1948); and Proctor v. State, 389 So.2d 520 (Ala.Civ.App.1980).

This nonjury case was presented ore tenus. It is axiomatic that in a case tried ore tenus there is a strong presumption that the trial court’s findings of fact are correct. Those findings will not be disturbed on appeal unless they are clearly erroneous or palpably wrong. We do not find that to be the circumstance here.

The evidence indicates that the vehicle was probably owned by Dean, or could have been owned by Veasley, but was not owned by Langley. The trial court noted in its findings that there was a bill of sale showing a sale of the vehicle by Langley to Dean, along with a financing statement and promissory note evidencing the transaction. Dean testified he bought the vehicle. Langley testified he sold the vehicle to Dean and that after the sale he maintained no control over the vehicle. Dean testified that he paid for the tag and made payments on the vehicle to Langley. We agree with the trial court that the evidence clearly indicates Langley had only a security interest in the vehicle. Furthermore, there was no evidence supporting a theory that the vehicle was “hired or borrowed” by Langley at the time of the accident.

Therefore, for the above reasons, we conclude that the judgment of the trial court is due to be, and it is hereby,' affirmed.

AFFIRMED.

FAULKNER, JONES, BEATTY and ADAMS, JJ., concur.


text:
    Louise FRALEY, et al. v. Edward M. BROWN III, et al.
    82-1123.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      John L. Lawler, Mobile, for appellants.
    J.M. Druhan of Wilkins & Druhan, Mobile, for appellees.
   EMBRY, Justice.

This case involves the construction to be placed on the last will and testament of Edward M. Brown, Jr., who died on 9 January 1963. His will established a residuary trust, of which both appellants and appel-lees are beneficiaries. At issue here is when, under the terms of Brown’s will, that trust should terminate. The trustees on 28 October 1982, “in doubt” as to their “duties and responsibilities with respect to distributing the assets of the estate,” petitioned the trial court for construction of the will.

On 17 February 1983, Edward M. Brown, III, and Bartow R. Brown, Sr., sons of the testator, submitted a motion for dismissal of the trustees’ petition. A hearing was held in March of 1983, at which the trial court granted dismissal on the pleadings in favor of Brown’s sons. Because, on motion for dismissal, the trial court considered matters outside the pleadings, the grant of that motion will, pursuant to Rule 12(c), ARCP, be treated, by this court, as a grant of summary judgment.

Appellants, Louise Fraley and Margaret Law, protested the trial court’s summary disposition of the case as premature, contending they had insufficient time to develop the evidence. On motion for reconsideration of that court’s order, appellants submitted additional evidence by affidavit. The trial court denied that motion and Fra-ley and Law took this appeal.

Appellants contend the trial court erred by granting summary judgment in favor of appellees because Brown’s will contains a latent ambiguity which that court failed to recognize. They contend the ambiguity is revealed by parol evidence submitted to the trial court and parol evidence which is yet to be developed.

Appellees, Brown’s sons, contend the will is clear and unambiguous in its terms, and, for that reason, they say parol testimony should not be considered in determining the meaning of the will.

I

First, we consider appellees’ contention that parol testimony is inadmissible because the language of the will is unambiguous. In this stance, they are overlooking the law regarding latent ambiguity of instruments. In Carr v. Dunn, 384 So.2d 7, 9 (Ala.1980), this court reviewed that subject, quoting as follows from Jacoway v. Brittain, 360 So.2d 306 (Ala.1978):

“ ‘The law says that where a latent ambiguity exists in a will, the court may resort to extrinsic evidence in ascertaining the intent of the testator. Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975).
“ ‘A latent ambiguity may arise in the identification of or application to the property or subject matter as described or bequeathed. See Wiley v. Murphree, 228 Ala. 64, 151 So. 869 (1933). See also, Achelis v. Musgrove, 212 Ala. 47, 101 So. 670 (1924).
“ ‘A latent ambiguity is to be distinguished from a patent ambiguity. A patent ambiguity is not a true ambiguity; it is merely confusion created on the face of the will by the use of defective, obscure or insensible language. On the other hand, a latent ambiguity occurs where the language is clear and intelligible, but when considered in light of certain extraneous facts, it takes on a multiple meaning....”’

As above stated, contrary to appel-lees’ assertions, parol evidence may be introduced to reveal a latent ambiguity in a writing which appears, on its face, to be clear and unambiguous. Then, should the trial court determine, from an examination of the parol evidence, there is a latent ambiguity in the document, parol evidence is admissible to clear up that ambiguity.

II

Second, we consider whether, based on the pleadings, depositions, and answers to interrogatories, together with the affidavits submitted in this ease, the trial court appropriately granted summary judgment. This is a two-pronged issue. First, we must determine whether the trial court ruled correctly that, as a matter of law, Brown’s will is unambiguous. Second, if a latent ambiguity is found to exist, whether issues of fact remain to be decided by that court regarding the intention of the testator concerning that ambiguity.

After a careful review of the record, we conclude the trial court erred by determining there is no latent ambiguity in Brown’s will, and further, that a triable issue is raised by appellants concerning the ambiguity.

The portion of the will with which appellants are concerned is Item VI. Under Item V, Brown created a residuary trust and provided for its termination twenty years from the date of his death, “[ejxcept as provided in ITEM SIX.” Item VI of the will provides as follows:

“If at the time provided for the termination of the Residuary Trust there is in existence a producing oil well on any property in which the Residuary Trust owns any oil, gas, and/or mineral rights, then there shall be the final distribution of all the assets of the Residuary Trust as provided in ITEM FIVE, except that all oil, gas, and/or mineral interests necessary, in the sole and absolute discretion of the Trustees, for the exercise of such oil, gas, and/or mineral rights, shall not be so distributed but shall remain in the Residuary Trust and continue to be held by my Trustees with all of the powers and authority conferred upon them for the conduct and management of the residuary Trust theretofore_” (Emphasis added.)

Appellants contend the term “owns,” as used in Item VI, is ambiguous when considered in light of parol evidence. The ambiguity concerns whether Brown intended that the trust terminate twenty years after the date of his death if there was oil-production on lands owned by a corporation solely owned by the trust.

The record reveals evidence was presented to the trial court as to the following alleged facts: During his lifetime, Brown owned substantial interests in real property, including oil, gas, and mineral rights. In December of 1957, he conveyed virtually all such interests to various corporations; among them, a Mississippi corporation, Glenpool, Inc. All of the capital stock of that corporation was held by Brown. A one sixty-fourth (Tin) overriding royalty interest in 163 mineral acres in Caddo Parish, Louisiana, was excluded from corporate ownership. Both the stock of Glenpool, Inc. and the Caddo Parish properties are now held by the residuary trust established by Brown’s will.

While there was no oil production on the Glenpool properties at the time of Brown’s death, Brown was aware, when he executed his will, of great potential for oil production on those lands. Those properties are now oil-producing and provide a substantial income to the residuary trust.

The Caddo Parish lands are also oil-producing, but the income form those lands is insufficient to fund the trust’s bequests. Appellants contend it was never anticipated by Brown that those properties would fund the residuary trust.

The attorney who drafted Brown’s will was unaware at the time he drafted the instrument that Brown had transferred virtually all his mineral interests to corporations he wholly owned.

Brown is alleged to have represented to Louise Fraley, at about the time of the execution of the will, that “so long as his property earned money” she would be “taken care of.”

We find the parol evidence presented by appellants reveals a classic latent ambiguity. The language of Brown’s will appears to be clear and intelligible. However, when considered in light of parol evidence, it takes on multiple meanings. From that evidence, we conclude it is conceivable that, when Brown provided, in his will, that the residuary trust established thereby should continue past twenty years after the date of his death if it “owns” oil-producing properties, he used the word “owns” in a broad sense to refer to lands held by a corporation solely owned by the trust.

Because there is an ambiguity in Brown’s will, and because material issues of fact remain about the testator’s intention regarding that ambiguity, the trial court’s grant of summary judgment in favor of appellees is due to be reversed.

For the reasons set out, the judgment of the trial court is reversed, and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, ALMON and ADAMS, JJ„ concur.

TORBERT, C.J., concurs in the result.


text:
    Marion L. SKIPPER & Liz Skipper v. ALABAMA FARM BUREAU MUTUAL CASUALTY INS. CO.
    83-321.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      John L. Lawler, Mobile, for appellants.
    Bert S. Nettles and Reggie Copeland, Jr. of Nettles, Barker & Janecky, Mobile, for appellee.
   BEATTY, Justice.

Marion and Liz Skipper’s home was destroyed by fire. Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau), which insured the home, paid the mortgagee listed on the policy for the loss. Subsequently, Farm Bureau filed a declaratory judgment action against the Skippers, claiming that under the concealment or fraud provision of the insurance policy, the policy was void because of misrepresentations made by the Skippers in their application for insurance concerning whether or not the Skippers had ever been sued. The pertinent provisions follow:

“Concealment, fraud. This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”

Farm Bureau also claimed that pursuant to the subrogation provision of the policy, the Skippers should reimburse Farm Bureau for the amount paid to the mortgagee.

The Skippers counterclaimed against Farm Bureau, alleging breach of contract and bad faith refusal to settle the claim. Farm Bureau later amended its complaint to allege that the Skippers’ statements denying that they had removed furniture from their home prior to the fire were false.

The case proceeded to trial on all claims. In defense of the bad faith claim, Farm Bureau sought to introduce the hearsay testimony of witnesses who claimed to have known about or seen the Skippers moving furniture from their home just pri- or to the fire. This testimony was offered to show what information Farm Bureau had in its files at the time it filed the declaratory judgment action. One objection to this evidence was sustained and one was withdrawn, at which time no limiting instruction was requested. At the close of Farm Bureau’s case in chief, the trial court entered a directed verdict in favor of Farm Bureau on the Skippers’ bad faith claim.

Well into the Skippers’ case in chief (five witnesses had been examined), the trial judge, ex mero motu, interrupted the direct examination of Marion Skipper to instruct the jury as follows:

“Ladies and Gentlemen, I want to tell you at this time the only thing that is before you is the declaratory judgment that Alabama Farm Bureau filed against the Skippers deciding whether they should be obligated to pay under the insurance claim and the counterclaim that the Skippers have filed against the insurance company asking them to pay under the policy.

“The bad faith claim no longer exists.” The Skippers did not object to this instruction nor did they request any other jury instructions with respect to the bad faith claim and the evidence presented in defense thereof.

After all the evidence was presented, the trial court denied the Skippers’ motion for directed verdict on Farm Bureau’s claim that the Skippers misrepresented that they did not remove furniture from their home just prior to the fire. The misrepresentation/subrogation claim and the Skippers’ breach of contract claim were submitted to the jury. The jury returned a verdict of $40,000 in favor of Farm Bureau, and the trial court entered judgment on the verdict. No pre-judgment or post-judgment motions were filed by the Skippers.

The Skippers present basically two issues on appeal: (1) Did the trial court err in failing to direct a verdict for the Skippers on Farm Bureau’s claim of misrepresentation? (2) Did the trial court err in failing to instruct the jury to disregard the evidence presented in defense of the bad faith claim, specifically the hearsay testimony admitted, which, if taken for the truth of the matter asserted, supported Farm Bureau’s claim of misrepresentation by the Skippers? We conclude that neither of these issues is reviewable because they were not properly preserved under Rules 50 and 51, A.R.Civ.P.

First, by challenging the trial court’s denial of their motion for directed verdict, the Skippers are asking this Court to review the sufficiency of the evidence presented at trial. Because the Skippers failed to move for a judgment notwithstanding the verdict, they have waived any right to attack the sufficiency of the evidence on appeal. In Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877, 881-882 (Ala.1979), this Court said:

“The reason for requiring a party to move for J.N.O.V. is inherent in the very nature of Rule 50. Rule 50 sets up an interlocking set of procedures that allow a party to attack the sufficiency of his opponent’s evidence. Those procedures are closely related and must be followed. Their interlocking relationship is demonstrated by the fact that a post-trial motion for J.N.O.V. is really just a renewal of a party’s motion for directed verdict, and the J.N.O.V. motion cannot be granted unless the motion for directed verdict should have been granted. ... Also inherent in Rule 50 is the intent to place the primary responsibility on the trial judge to determine the sufficiency of the evidence. To facilitate this responsibility Rule 50(b) allows the court to reserve a ruling on the sufficiency of the evidence until after the jury verdict. ...
“We find the procedures contained in Rule 50 devise a precise plan for attacking the sufficiency of the evidence. This plan recognizes the important role played by the trial judge in determining that sufficiency. The final step in preserving appellate review of the sufficiency of the evidence in a jury trial is the making of a timely motion for J.N.O.V. Failure to make that motion prohibits appellate review of the sufficiency of the evidence. ... For this court to review a jury verdict on the ground there was insufficient evidence to support it, both a motion for directed verdict at the close of all the evidence and a post-trial motion for J.N. O.V. must be made. ... We, therefore, hold the timely filing of a motion for J.N.O.V. is required in order to preserve a party’s right, on appeal, to attack the sufficiency of the evidence in a jury trial.”

Second, Rule 51, A.R.Civ.P., set forth in pertinent part below, states what is required in order to challenge on appeal the jury instructions that were or were not given at trial:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. ...” (Emphasis added.)

Moreover, “the law of this state requires that an objection to the failure to charge on a particular subject ... must be by way of a requested written charge.” City of Birmingham v. Wright, 379 So.2d 1264, 1266 (Ala.1980). As we have already pointed out, the Skippers neither orally objected to the instruction given by the trial judge nor submitted a requested written instruction to be given on the subject of the hearsay evidence allowed in on the bad faith issue. Therefore, the alleged error was in no way properly preserved for our review.

Accordingly, the judgment below is due to be, and it is hereby, affirmed.

AFFIRMED.

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


text:
    Ex parte Leon L. CLARDY and Virginia Clardy. (In re: Leon L. CLARDY and Virginia Clardy v. S & M FARMS, INC., a Corporation, et al.)
    83-573.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      C. Knox McLaney III and George Beck of Baxley, Beck, Dillard & Dauphin, Montgomery, for petitioners.
    Wade K. Wright of Rushton, Stakely, Johnston & Garrett, Montgomery, for respondents.
   EMBRY, Justice.

Leon and Virginia Clardy petition this court for a writ of mandamus to the Honorable Randall Thomas, Judge of the Fifteenth Judicial Circuit, directing him to recognize jurisdiction in an action filed in Montgomery County and to set aside an order transferring the case to Elmore County, due to improper venue. The writ is denied.

This petition arose out of a suit filed by the Clardys against S & M Farms, Inc., and E. Phillip Mangum, and E. Phillip Mangum, Jr., individually and as officers and directors of S & M Farms. The original complaint contained two counts, each prefaced by an averment that the plaintiffs are the owners of real property in Elmore County and that the defendants are the owners, or in possession of and are farming the adjacent real property.

The pertinent portion of count one alleges:

“The Defendants have so constructed, maintained, farmed or otherwise managed said property and Defendants have further allowed mud, silt and water to be deposited on Plaintiffs’ said property, rendering Plaintiffs’ said property permanently less valuable, causing temporary damage and causing great mental anguish to Plaintiffs.”
Count two avers:
“In working on the construction, drainage and in maintaining the property of the Defendants, Defendants have committed a trespass to Plaintiffs’ property and have removed the natural vegetation from the surface of the dirt, and in so doing, have caused a severe erosion problem to develop. This erosion, silt and pollution flows onto the property of the Plaintiffs, invading their property and causing substantial and actual damage to their property. These actions of trespass by the Defendants have caused severe pollution to Plaintiffs’ property, have interfered with Plaintiffs possessory rights, have permanently decreased its value, and have caused the Plaintiffs great inconvenience and mental anguish.”

On 3 November 1983, the trial court granted the plaintiffs’ motion for leave to amend. Plaintiffs amended each count of their complaint to include a request for injunctive relief prohibiting the defendants from farming their property so as to damage the land or mineral interests of the plaintiffs, either by direct or indirect action, trespass or nuisance.

The single issue presented by this appeal is whether the trial court properly transferred this cause from Montgomery County to Elmore County.

The proper venue in this action is controlled by Code 1975, § 6-3-2, which provides in pertinent part:

“(b) In proceedings of an equitable nature against individuals:
“(1) All actions where real estate is the subject matter of the action, whether it is the exclusive subject matter of the action or not, must be commenced in the county where the same or a material portion thereof is situated.”

To the extent to which counts one and two seek injunctive relief, they sound in equity. Cf. Shomo Land Co. v. Johnson, 280 Ala. 398, 194 So.2d 554 (1967). The “subject matter” referred to above concerns the nature of the complaint and of the relief sought. Ex parte Lamb, 400 So.2d 386 (Ala.1981); Alabama Youth Services Board v. Ellis, 350 So.2d 405, 408 (Ala.1977). We find that the nature of petitioners’ complaint and of the relief sought is to protect petitioners’ interest in the use and enjoyment of their land located in Elmore County. Therefore, the subject matter of the Clardys’ complaint, although not exclusively, is real estate. Accordingly, the proper venue for this action is the situs of the property in question, Elmore County. § 6-3-2(b)(l), Code 1975.

Contrary to the Clardys’ assertions, our findings are not inconsistent with Shomo Land Co. v. Johnson, 280 Ala. 398, 194 So.2d 554 (1967). In Shomo, the plaintiff sought to enjoin, in personam, certain named individuals from trespassing on a particular piece of property. Accordingly, the court found that the proper venue for the trespass was either the situs of the complainants’ property or the county of the residence of the defendants.

In contrast to Shomo, the petitioners’ amended complaint cannot be characterized as an in personam action. The amended complaint requests that “The defendants, their agents, servants and employees be enjoined and prohibited from allowing their property, or the property either defendant is farming, to damage the land or mineral interest of the plaintiffs either by direct or indirect action, whether by trespass or nuisance_” (Emphasis added.) Clearly, the subject matter of all causes of action stated by the petitioners is real estate, and the action is therefore properly commenced in the county where the property is located.

It follows that the venue of this action properly lies in Elmore County. There appearing no error in the trial court’s order transferring the cause to Elmore County, the writ of mandamus must be, and is hereby, denied.

WRIT DENIED.

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


author: SHORES, Justice.

text:
    Cecil Eugene PRUITT and Betty Pruitt v. Mr. and Mrs. Hoyt ELLIOTT, et al.
    83-577.
    Supreme Court of Alabama.
    Nov. 30, 1984.
    Charlie D. Waldrep and Greggory M. Deitsch of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for appellants.

      Jack B. McNamee of Topazi, Morton & McNamee, Birmingham, for appellees.
   SHORES, Justice.

Plaintiffs Cecil Eugene Pruitt and Betty Pruitt appeal from a summary judgment granted in favor of defendants Sarah and Hoyt Elliott in this action to recover damages for personal injuries. We affirm.

The deposition testimony of Cecil Pruitt, Sarah Elliott, and Hoyt Elliott showed that, on June 18, 1981, plaintiff Cecil Pruitt fell approximately twenty feet from an aluminum extension ladder while trimming limbs from a tree at the home of the defendants, Sarah and Hoyt Elliott. The Elliotts had hired Pruitt on several occasions in the past to do seasonal yard work for them, usually in the afternoons after he got off work or on weekends. It was customary for Pruitt to do whatever work was needed on a particular occasion. For the days that they worked, Pruitt and his two sons, who at times assisted him, were paid on an hourly basis. Pruitt provided some of his own tools, and he also had full access to the storage shed where the Elliotts stored their yard tools. There was no scheduled time for Pruitt to work. He either came by the Elliotts’ home, called requesting yard work, or was called by the Elliotts. Mrs. Elliott would show Pruitt which jobs she needed done on a particular day, but would not give him any instructions about the manner in which he was to go about doing those jobs. Mrs. Elliott would, however, check periodically to make certain that Pruitt was doing the job that he was instructed to do.

On the date of his injury, Pruitt was instructed by Mrs. Elliott to trim the lower limbs from approximately six trees in the Elliotts’ yard. To reach these limbs, it was necessary to have a ladder, which was borrowed from a neighbor of the Elliotts through an arrangement between Mrs. Elliott and her neighbor. Pruitt had used the ladder on occasions in the past. One of Pruitt’s sons positioned the ladder against one of the trees to be trimmed. The contour of the ground immediately beneath the tree was “sloped,” and there was no grass growing there. Fallen leaves and pine straw covered bare soil in the area where the ladder was standing, and there were also some holes in the yard, brush lying in spots on the ground, and some rocks lying along the edge of the yard an undetermined distance from where the injury occurred. The weather was clear on the date of the injury.

Pruitt, while on the ladder and in the process of cutting the limbs with his power saw, lost his balance and fell to the ground, injuring his foot and ankle.

On June 17, 1982, the Pruitts filed a three-count complaint, naming the Elliotts as defendants, alleging that the Elliotts negligently and wantonly caused or allowed Pruitt to fall from the ladder and negligently and/or wantonly caused or allowed an unsafe condition to exist on the premises where Pruitt was working. The third count stated a cause of action for loss of consortium on behalf of Mrs. Pruitt. The Elliotts filed a motion for summary judgment based upon the complaint, their answer, and the deposition of Pruitt. In opposition to the Elliotts’ motion for summary judgment, the Pruitts submitted Mr. Pruitt’s deposition and the deposition of Sarah Elliott. The trial court granted the Elliotts’ motion for summary judgment, and the Pruitts appealed. The Pruitts insist that an issue of fact exists concerning the status Pruitt held while on the Elliotts’ property and the corresponding duty owed to him arising from that status. They contend that Pruitt was the employee of the Elliotts and that as such, the Elliotts were under a duty to provide a safe place for him to work. This duty, it is argued, was breached by the Elliotts because they provided Pruitt with a defective ladder. The Pruitts allege that the ladder had “bent steps,” a bent or missing “grip” on the foot of the ladder, and a bent “hook” located at the point of extension of the ladder which was pulled away from the frame. They further contend that the premises were unsafe because of the presence of holes, rocks, and brush in and around the area where the injury occurred.

The Elliotts contend that the undisputed facts establish that Pruitt’s status while working on their property was that of an independent contractor and not that of an employee. They also argue that there is no evidence that the condition of the ladder or any other factor played any part in causing Mr. Pruitt to fall. Thus, defendants say, Pruitt’s status while on their property is not material; that is, they say, there is no genuine issue of fact as to the proximate cause of Pruitt’s fall.

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R. Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So.2d 614 (Ala.1981).

Applying the law to the undisputed facts in this case, it is clear there is no genuine issue concerning the cause of Pruitt’s fall; thus his status while on the Elliotts’ property is not material. Pruitt’s undisputed testimony on deposition is as follows:

“Q. Were you actually in the process of cutting [the limb]?
“A. Well, sir, I was cutting the limb and I cut the limb and it come back at me, it swung.
“Q. When the limb was cut, you said it popped back and hit you?
“A. Yes, sir.
“Q. Did the limb itself knock you off the ladder?
“A. Well, yes, sir. I dodged the limb, it was pretty good size limb to keep it from hitting me in the face, when I did, I sort of lost my balance and I fell.”

There were no eyewitnesses to the fall; therefore, Pruitt is in the best position to know what caused it. It is undisputed that the ladder remained standing against the tree following the fall, thus confirming Pruitt’s testimony that he lost his balance while dodging the limb and not as a result of any defect on the ladder itself. There is also no evidence that the rocks, holes, brush, contour of the ground, or any other factor played any part in causing Pruitt to fall.

Pruitt has failed to prove an essential element of each cause of action stated in the complaint, that is, proximate cause. There was, therefore, no error in granting summary judgment in the Elliotts’ favor.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Monroe WILLS and Grace Wills Brannon v. Paul WILLS and Ernestine Pridgen.
    83-738.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      W. Phil Eldridge, Hartford, for appellants.
    Henry F. Lee III of Lee & Fleming, Geneva, for appellees.
   ADAMS, Justice.

This appeal is from the Geneva County Circuit Court’s order ratifying a petition for final settlement and discharge of executors offered by the appellees, Paul Wills and Ernestine Pridgen, as co-executors of the estate of Ruth Hendrix. Appellants, Monroe Wills and Grace Wills Brannon, are two of the beneficiaries under the will, and they contend that the proposed accounting contained questionable disbursements and was not a full, fair, and equitable partition of the lands and estate.

The facts of this case are as follows:

Appellees, Ernestine Pridgen and Paul Wills, were named as co-executors in the last will and testament of the deceased, Ruth Hendrix, and were so appointed by the Probate Court of Geneva County, Alabama, on May 10, 1982. On March 8, 1983, the administration of the estate was removed to the Circuit Court of Geneva County.

By letter dated July 1, 1983, the appel-lees/co-executors filed a proposed accounting and settlement with all of the beneficiaries named in the will. Two of the beneficiaries, Monroe Wills and Grace Wills Bran-non (appellants), rejected the proposal, by written notice, because they did not consider it to be a fair and equitable partition of the lands, and also because they questioned several of the disbursements. More particularly, appellants averred the following:

1. That the executrix, Ernestine Prid-gen, took money from the estate for her own personal use and did not repay the estate in full;
2. That the executrix, Ernestine Prid-gen, owes the estate for phone calls made by Pridgen Carpets, Inc. and charged against the estate which were made prior to the decedent’s death and were therefore unrelated to estate matters;
3. That the payments to Ernestine Pridgen’s sister, Cornelia Brooks, for filing claims concerning medical expenses incurred by the decedent prior to her death, were unreasonable and were not shown to have benefited the estate;
4. That the liming, ditching, and draining of some of the land only benefited certain beneficiaries and thus was unfair;
5. That the estate was due money from the remainder of a homeowner’s insurance policy premiums;
6. That the division of land proposed was unfair and inequitable;
7. That an air conditioner and a space heater found in a store should have gone to the residuary beneficiaries and not to Mary Ann Bixby;
8. That Item Two E. of the last will and testament of the deceased was incorrectly interpreted by the appellees/co-ex-ecutors.

Following a hearing on the matter, the circuit court, on November 4, 1983, entered an order approving the petition for final settlement and discharge of executors, the pertinent part of which follows:

ORDER

This cause coming on to be heard on the Petition for Final Settlement and Discharge of Executors, and the Court having heard the testimony of the parties and received other evidence is of the opinion that the Petition for Final Settlement should be granted. It is therefore
ORDERED, ADJUDGED and DECREED by the Court as follows:
That the Petition for Final Settlement and Discharge of Executors heretofore filed in this Court under oath has been satisfactorily proven to be a true and accurate accounting of the handling of this estate by the said executors and the same is hereby ratified and approved....

Appellants filed a motion for rehearing, which restated many of the assertions set out above. The motion was denied by the trial court and this appeal followed, wherein appellants reiterated their position that the trial court erred in ratifying the petition for final settlement exactly as it was submitted by the appellees.

It is the policy of this Court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore ten-us. Such findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. [Citations omitted.] The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.

First Alabama Bank of Montgomery, N.A. v. Coker, 408 So.2d 510, 512 (Ala.1982).

In our consideration of the alleged improprieties raised by the appellants, we find that there is conflicting evidence as to the allegations herein numbered 1, 4, 6, and 8. Applying the aforementioned standard of review, we are unable to find that the trial court’s decision regarding these specific assertions was clearly and palpably erroneous. Therefore, the judgment as it pertains to allegations 1, 4, 6, and 8 is due to be affirmed. However, as to allegations 2, 3, 5, and 7, we determine that the trial court’s findings do not fall within permissible bounds, and reverse its judgment on these points.

With regard to the appellants’ second assertion, the evidence is clear that the trial court erred in allowing an expenditure of $92.23 for phone calls the appellees claim were made by the deceased, Ruth Hendrix. The telephone bill was actually incurred by Pridgen Carpets, Inc. and not the deceased. We have long followed the rule that the will speaks as of the date of the testator’s death, and is construed as operating according to then existing conditions unless a contrary intent is shown. Jeffries v. Boyd, 269 Ala. 177, 112 So.2d 210 (1959). Therefore, since the telephone calls were made prior to the death of the deceased, they cannot be related to estate business. Thus, the expenditure of $92.23 to pay for these calls was unauthorized, and the estate should be reimbursed this money.

Relating to the appellants’ third contention, we find that the trial court was clearly wrong in affirming the $1,360.87 expenditure. The payment of this sum by the executrix to her sister, Cornelia Brooks, for services the executrix herself could have and should have performed was a violation of her duty to settle the estate matters wisely. There was no showing by the appellees that Cornelia Brooks possessed any particular expertise in handling these matters, or that any was even necessary. Due to the failure of the appellees to justify the expenditure, the $1,360.87 must be repaid to the estate.

We also agree with the appellants’ fifth contention that the estate must be reimbursed for the remainder of the homeowner's insurance policy premium. There was uncontroverted testimony at trial that Mary Ann Bixby took possession of the house with approximately six months remaining on a twelve-month homeowner’s policy. The annual premium was $514.00; therefore, the estate is due to be paid $257.00 by Mary Ann Bixby.

Finally, the appellants claim that the trial court was incorrect in allowing a win-

dow air conditioner and a space heater to be distributed to Mary Ann Bixby (as owner of the house) and not to the residuary beneficiaries. We agree. As we have previously stated, a will speaks as of the date of death of the testator. Jeffries v. Boyd, supra. According to the record, all the witnesses who testified about the location of the air conditioner and space heater said the items were in a store on real property in the residuary estate when Ruth Hendrix died. With the exception of the air conditioner and space heater, all of the property in the store was distributed to the residuary beneficiaries. There was no evidence adduced at trial that even suggested an intent on the part of the deceased to have the items distributed to Mary Ann Bixby. Therefore, the air conditioner and space heater should have been distributed to the residuary beneficiaries.

For all of the above-stated reasons, the judgment of the trial court ratifying the petition for final settlement exactly as it was submitted is reversed and the cause remanded for the court to issue an order consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Kathleen CURRY v. Dawn LEE.
    83-798.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      Margaret L. Fleming of McCrary & King, Talladega, for appellant.
    Ralph D. Gaines, Jr. and Robert B. Barnett, Jr. of Gaines & Cleckler, Talladega, for appellee.
   SHORES, Justice.

This is an appeal from a judgment entered on a jury verdict for the defendant, Dawn Lee, in a wrongful death action brought by Kathleen Curry as administra-trix of the estate of Lee Dale Curry. The suit was filed as the result of an automobile accident in which Lee Dale Curry was killed when his automobile collided head-on with an automobile driven by the defendant. We affirm.

A single issue is raised on this appeal, and that is whether the trial court erred in refusing to grant a new trial.

During voir dire examination in this action, counsel for the plaintiff asked whether any member of the venire had ever been a defendant in a lawsuit. Two members of the venire responded affirmatively to this question; the record does not indicate, however, whether these two veniremen were struck from the jury. Thereafter, a jury was empanelled, and this action was tried, resulting in a verdict for the defendant.

The plaintiff made a timely motion for a new trial with supporting affidavits maintaining that juror Annie 0. Parton, some twelve months prior to the trial of this action, had been a defendant in a suit brought in the Small Claims Division of the District Court of Talladega County. Plaintiff further asserted by affidavit that in reliance on the failure of Annie 0. Parton to give an affirmative response to the question, plaintiff did not strike her from the jury. By opposing affidavit, juror Annie 0. Parton stated that she was unaware she had been a defendant in a lawsuit, and that in any event, she had not been prejudiced in her decision in this case.

In Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970), the Court set forth the standard to guide the trial court in its determination of whether a new trial should be granted, based on the failure of a prospective juror to properly respond to a question propounded on voir dire:

“[T]he proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant....
“Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.”

286 Ala. at 166, 167, 238 So.2d at 335, 336. Freeman held that the trial court would be reversed in this determination only for an abuse of discretion. We have consistently applied the Freeman standard in this circumstance. See, e.g., Estes Health Care Centers, Inc. v. Bannerman, 411 So.2d 109 (Ala.1982); Miller v. Samples, 291 Ala. 533, 283 So.2d 424 (1973); Bruno’s Food Stores, Inc. v. Burnett, 288 Ala. 222, 259 So.2d 250 (1972).

From the record it is evident that the trial court properly applied the Freeman standard. In his order denying plaintiffs motion for a new trial, the trial judge wrote:

“[CJounsel for the plaintiff, on voir dire examination, inquired of the panel whether any member of the venire had ever been a defendant in a lawsuit. One juror, Annie 0. Parton, failed to respond in the affirmative to this question. It developed subsequent to the verdict for the defendant that plaintiffs counsel determined that said juror, Annie 0. Par-ton, along with her husband, Lecile Par-ton, had been [a defendant] in a Small Claims Court proceeding by Liberty Loan Company to collect the sum of $337.73, which claim included attorney’s fee. A default judgment was entered in this case and the judgment was collected by a Writ of Garnishment issued to the employer of Lecile Parton. It is doubted that Annie 0. Parton ever actually knew that she was technically a defendant in a lawsuit. It was just another one of those ‘garnishees.’
“The Court is aware of the rule set forth by the Appellate Courts of this State which appears to be the general rule throughout the country. The rule has been stated by the Courts thusly: ‘We hold that the proper inquiry for the Trial Court on Motion For a New Trial, grounded on allegedly improper responses or lack of response by a prospective juror on voir dire is whether this has resulted in probable prejudice to the mov-ants.’
“The Court finds, from reviewing the evidence and applying the rule, that such failure to answer by juror, Annie 0. Par-ton, did not result in prejudice to the plaintiff....”

We hold that, under the facts here, there was no error in denying the plaintiff’s motion for new trial and, accordingly, affirm the judgment appealed from.

AFFIRMED.

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