text:
    Buford KELLY, Leida Warren, et al. v. Neva Mae Kelly DONALDSON, as Executrix of the Estate of Minnie Cook, deceased.
    82-1263.
    Supreme Court of Alabama.
    Aug. 31, 1984.

      William M. Hammond, Elba, for appellants.
    J.E. Sawyer, Jr., Enterprise, for appellee.
   BEATTY, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of the proponent of a will. We affirm.

The proponent, Neva Donaldson, offered for probate the purported will of her deceased aunt, Minnie Cook. This will named the proponent as both sole beneficiary and executrix. A contest was filed by Minnie Cook’s surviving sister and various nieces and nephews. Revocation and undue influence were alleged as grounds for the contest.

The record indicates that the testatrix, Minnie Cook, executed duplicate originals of a will on October 22, 1973. The evidence on behalf of the proponent, Neva Donaldson, consisted solely of her testimony. According to the proponent, Minnie requested that she take her “to town to tend to some business.” Mrs. Donaldson drove to Enterprise, where Minnie directed her to an attorney’s office. Minnie told the attorney that she wanted to leave the proponent “everything I’ve got.” Duplicate originals of the will were then executed with attorneys Warren Rowe and B.B. Rowe and their secretary, Deborah Woodham, as witnesses.

Mrs. Donaldson testified that when they returned to Minnie’s house, she was directed to place one copy of the will underneath the television set in the living room. Minnie then gave her the other copy to keep “in cases [sic] if my house gets burned up or this gets misplaced.” Although Minnie once took her copy of the will to the proponent’s home in Panama City, Florida, and inadvertently left it there, Mrs. Donaldson testified that she returned it, and, in 1980, again saw it at Minnie’s house. At that time, the proponent had “heard” that Minnie had made a will in favor of another niece and questioned Minnie concerning that. According to Mrs. Donaldson, Minnie assured her that “she hadn’t never [sic] made but one will” and that she “wasn’t going to make nary another will because it cost too much.” Later, on December 26, 1981, the proponent was visiting Minnie, when Minnie asked, “[Y]ou know where I keep my will?” The proponent answered that she did. Minnie said, “[W]ell, I ain’t changed nothing.”

After Minnie’s death on January 21, 1982, the proponent attempted to locate Minnie’s copy of the will. She asked Leida Warren, a former sister-in-law of Minnie’s and the mother of two of the contestants, for the key to Minnie’s house, but Mrs. Warren refused to give it to her. When the proponent informed Mrs. Warren that she had a will, Mrs. Warren responded “you’ll damn sure pay hell proving it.”

Mrs. Donaldson testified that around the first of February, she went to Minnie’s house and “went through the window.” She found the house in disarray, with most of the furniture missing. The mattress and a cushion had been ripped open and clothes were “pulled out ... on the floor.” In the living room, she said, “there was paper all over there and in this corner where we had the deeds, the will, pardon me, the will, this TV that was on rollers, it had been pushed back, ripped out in back. The carpet was turned up, the throw rug in front of the TV was way in the kitchen.”

The contestants offered the evidence of two of Minnie’s neighbors. Both testified that Minnie had told them that she had destroyed her will. One neighbor, Maiva White, further related that Minnie “said she wasn’t going to make no will. Said her people wouldn’t come and do nothing for her and see about her and if they got what she had she was going to let them get it the hard way.” The following exchange also occurred during her testimony:

“Q. [By contestants’ attorney] Did [the proponent] come around very much?
“A. I didn’t ever see her.
“Q. I see. Now, did Mrs. Cook ever tell you anything about her will?
“A. Not really. She just told me she had some fixed.
“Q. I see. Did she ever tell you about who she was going to leave things to?
“A. Huh-uh.
“Q. All right. Did she ever tell you about having made a will to somebody?
“A. Yeah, she told me she made several wills over the years.
“Q. What did she say she did with them?
“A. Said she burned all that she had made.
“Q. Do you know about her going down to [the proponent’s home] back in ’73 a few times?
“A. Yeah, she told me she went down there.
“Q. Did she have any understanding with [the proponent] — did she make any agreement with [the proponent] about a will?
“A. She didn’t say it in that words. She just said she wanted to give her— what she had — to somebody to take care of her.
“Q. Uh-huh.
“A. And so she turned all of her important papers and things over to [the proponent]. And she was supposed to take care of her. And she went down there and stayed a while and I don’t know what went wrong and she told me that she got all of her papers and things back and when she got those back she just burned all those wills she ever made.”

Leida Warren, who was the mother of two contestants and who had herself been a contestant until dismissed due to the fact that she was not an heir at law, also testified on behalf of the contestants. She stated that, in 1974, Minnie showed her the will in which Minnie left everything to the proponent. According to Mrs. Warren, she was "taking care of [Minnie’s] business for her” prior to her death. She related that at some point she had asked Minnie, “[D]on’t you know I’m tired of working for you and you got your will made for somebody else? And [Minnie] said I done burned that thing up.” Mrs. Warren testified that sometime later Minnie offered to make a will in her favor, but that she “didn’t let her.”

Mrs. Warren also testified that she had the key to Minnie’s house when Minnie died. After Minnie’s death, Mrs. Warren went to the house with one of Minnie’s nephews and his wife and they searched through Minnie’s papers. She stated that she found “old letters, old deeds, mortgages and bills of all kinds,” which she turned over to an attorney. She said that she did not, however, find a will, although she did find two empty will covers.

In Summerhill v. Craft, 425 So.2d 1055, 1057 (Ala.1982), this Court stated: “If a testatrix keeps one of two duplicate original wills and gives the other to another person, and no will is found in her possession at her death, ‘the presumption arises that [s]he destroyed it for the purpose of revocation.’ Stiles v. Brown, 380 So.2d 792, 796 (Ala.1980).” While this presumption is rebuttable, the burden of rebutting the presumption rests with the proponent of the will. Stiles, 380 So.2d at 795; Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975).

Evidence offered by the proponent which merely shows “that a will contestant had access to the will after the testatrix’s death is not enough to overcome the presumption [of revocation].” Summerhill, 425 So.2d at 1057. In Lovell v. Lovell, 272 Ala. 409, 412, 132 So.2d 382, 384 (1961), it was held that the presumption was not overcome by evidence showing that a contestant not only had opportunity to destroy the will, but also told the proponent, who had a copy of the will, “that she would have ‘to find the original will and it has got to be signed and the date has got to be right.’ ” Here, however, the proponent’s testimony, taken as a whole, tends to show much more than the evidence in Lovell. Her account of the disordered condition of the house and her testimony that Minnie had several times reaffirmed the existence of the will, the last time being less than a month before her death, are factors to be considered. Cf Stiles, supra (presumption rebutted by fact that attorney told testator he must, to revoke the will, destroy both the copy retained by the attorney and the copy taken by the testator, and with the fact that the testator never attempted to destroy the copy retained by the attorney, coupled with the fact that a contestant had access to the will after the testator’s death.)

Where, as here, the proponent’s evidence is contradicted by evidence presented by the contestants, this Court cannot find that as a matter of law the proponent has “overcome] the presumption of revocation raised by the failure to find [the testatrix’s] copy of the will.” Summerhill, 425 So.2d at 1057. However, a jury question on this issue was clearly presented, see Summerhill, supra, and the proponent’s testimony, if believed, was sufficient to support the verdict. Cf New York Life Ins. Co. v. Turner, 213 Ala. 286, 288, 104 So. 643, 644 (1925) (“When a presumption [in a civil case] is to be overcome, the jury, giving due weight to the presumption in the light of judgment and experience, and in connection with the whole evidence, must be reasonably satisfied.”).

It is well established that the contestant who challenges a will on the basis of undue influence bears the burden of proving such allegation. Sanford v. Coleman, 418 So.2d 856, 858 (Ala.1982); Clark v. Clark, 280 Ala. 644, 649, 197 So.2d 447, 451 (1967). To meet this'burden, and thereby raise a presumption of undue influence, the contestant must establish:

“(a) The existence of a dominant, confidential relationship between a favored beneficiary and the testator; and
“(b) active interference or undue activity by the beneficiary in procuring the-execution of the will.” (Emphasis added.) Price v. Norris, 428 So.2d 609, 610 (Ala.1983).

The contestants in the present case have failed to establish either element. While there was some evidence that the proponent was supposed to be “taking care of the testatrix,” this alone will not establish the necessary confidential relationship, nor does it show any undue activity on the part of the proponent. See Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968).

The proponent’s testimony tended to show that she had a close and affectionate relationship with the testatrix Minnie Cook, but even that evidence does not establish the required “dominant, confidential relationship.” Moreover, even if we assume that a confidential relationship existed between the proponent and Minnie, we cannot say that there was any active interference or undue activity on the part of the proponent. “Undue activity” must be “more than an activity and interest referable solely to a compliance with or obedience to the voluntary and untrammeled directions of the testa[trix].” Burke v. Thomas, 282 Ala. at 421, 211 So.2d at 912 (1968). The mere fact that the proponent transported Minnie, at her request, to Enterprise “to seek a lawyer to draw the will, does not within itself establish such undue activity on the part of [the proponent].” Johnson v. Howard, 279 Ala. 16, 21, 181 So.2d 85, 90 (1965).

The contestants also assert that the trial court erred in giving the following charge requested by the proponent:

“The fact that the will left in the testator’s possession cannot be found after his death creates a presumption that the will was destroyed by the testator animo revocandi, or with intent to revoke. The presumption referred to is not an irre-buttable conclusion of law; it is a mere inference of fact.”

The charge, taken directly from this Court’s opinion in Stiles v. Brown, 380 So.2d 792, 795 (Ala.1980), is a correct statement of law and is applicable to the instant facts.

Let the judgment be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Charlotte PAYNE v. NATIONWIDE MUTUAL INSURANCE COMPANY.
    83-109.
    Supreme Court of Alabama.
    Aug. 31, 1984.

      Julian L. McPhillips, Jr. of McPhillips & DeBardelaben, Montgomery, William J. Baxley and Charles Dauphin of Baxley, Beck, Dillard & Dauphin, Birmingham, for appellant.
    Jack Livingston of Livingston, Porter & Paulk, Scottsboro, for appellee.
   BEATTY, Justice.

The plaintiff appeals from a summary judgment for the defendant. We affirm.

Nationwide Mutual Insurance Company (Nationwide) insured an office building against fire for Charlotte Payne, who operated a real estate office in that building. A fire destroyed the building. An investigation by police, fire, and insurance authorities led all to believe that arson was the cause of the fire.

Ms. Payne filed a proof of loss, and, shortly thereafter, Nationwide commenced an examination of her under oath. Later, Nationwide initiated a declaratory judgment action against Ms. Payne to determine whether it was obligated to her under the policy of insurance. A short time later, Ms. Payne instituted a separate action against Nationwide and its agent, Larry Kirkland. As amended, her complaint claimed damages against Nationwide and Kirkland for a misrepresentation that her insurance would cover loss of income; for breach of contract for failure to pay her claim; for suppression by Kirkland of the alleged fact that Nationwide would obstruct and delay payment if a claim for fire loss were made; for bad faith refusal to pay her claim; and for intentional infliction of emotional distress. These cases were consolidated by the trial court. Later, in response to a defense motion, the trial court severed the declaratory judgment case and plaintiffs breach of contract count from the other issues.

A jury trial proceeded on the consolidated breach of contract and declaratory judgment issues, with Nationwide’s defenses being arson and misrepresentation. Ms. Payne’s motion for a directed verdict on the contract count was overruled. The trial resulted in a jury verdict in favor of Ms. Payne for $30,000 and interest. That judgment and the costs have been paid by Nationwide.

After the trial, Nationwide and Kirkland moved for summary judgment in Ms. Payne’s action against them. Payne dismissed Kirkland and dismissed all counts except her count on bad faith refusal to pay. In its consideration of the summary judgment motion, the trial court had before it all the depositions, sixteen in number, taken in both cases; Ms. Payne’s examination under oath; and the record of the trial in the declaratory judgment action. After considering this material, the trial court entered summary judgment in favor of Nationwide on the bad faith refusal to pay claim.

The question, then, is whether the trial court erred in granting that summary judgment.

It is a familiar principle of law that in order for summary judgment to be proper, the pleadings and other materials submitted in support must show that there is no genuine issue on any material fact, and that the moving party is entitled to judgment as a matter of law. In other words, the moving party must show that the other party could not recover under any discernible set of circumstances, with all reasonable inferences to be considered in a light most favorable to the non-moving party. Bon Secour Fisheries, Inc. v. Barrentine, 408 So.2d 490 (Ala.1981).

Could Ms. Payne, under any discernible set of circumstances, recover in her action for bad faith refusal to pay?

Under Chavers v. National Security Fire & Casualty Co., 405 So.2d 1, 7 (Ala.1981):

“[A]n actionable tort arises for an insurer’s intentional refusal to settle a direct claim where there is either ‘(1) no lawful basis for the refusal coupled with actual knowledge of that fact or (2) intentional failure to determine whether or not there was any lawful basis for such refusal.’ ”

These general principles were further explained in National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982):

“No lawful basis ‘means that the insurer lacks a legitimate or arguable reason for failing to pay the claim.’ Gulf Atlantic Life Ins. Co. v. Barnes, Ala., 405 So.2d 916 (1981). When a claim is ‘fairly debatable,’ the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. Ibid.
“Under those circumstances the plaintiff in a ‘bad faith refusal’ case has the burden of proving:
“(a) an insurance contract between the parties and a breach thereof by the defendant;
“(b) an intentional refusal to pay the insured’s claim;
“(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.
“In short, plaintiff must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute. Or, stated differently, the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim. [Emphasis in original.]
“The ‘debatable reason’ under (c) above means an arguable reason, one that is open to dispute or question. Webster’s Third New International Dictionary (1931) at 116. See Chavers at 10; see also Embry, J., concurring on rehearing in Aspinwall v. Gowens, Ala., 405 So.2d 134 (1981).”

This was further amplified in National Savings Life Ins. Co. v. Dutton, 419 So.2d 1357, 1362 (Ala.1982):

“In the normal case in order for a plaintiff to make out a prima facie case of bad faith refusal to pay an insurance claim, the proof offered must show that the plaintiff is entitled to a directed verdict on the contract claim, and thus, entitled to recover on the contract claim as a matter of law. Ordinarily, if the evidence produced by either side creates a fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim must fail and should not be submitted to the jury.”

Dutton thus emphasized the heavy burden borne by'thei plaintiff in a bad faith refusal case. ,

Thus, the contrblling issue in this case becomes this: Was the trial court in error in the earlier tried contract action for submitting Payne’s contract claim to the jury? If there was any such factual issue, then under Dutton the trial court was correct in granting summary judgment for Nationwide in plaintiff’s bad faith refusal claim.

A complete recital of the evidence from that trial is unnecessary to show that such a factual issue existed. Nationwide’s evidence tended to show Ms. Payne’s history of financial difficulty prior to the fire, e.g., that she had had checks returned unpaid because of insufficient funds and had been required to pay for telephone service by cashier’s or certified checks. The fire itself was generally concluded to have been caused by arson. Three five-gallon gasoline cans were located on the burned premises. Gasoline was present. A hot plate on the back porch of the building was connected to the front office by an extension cord plugged to an electric socket. This was believed by firemen to have caused ignition of the gasoline which, when it exploded, was severe enough to move a wall.

After the fire, the desk drawers inside the building were found to be open and empty, and some desk drawers had been removed beforehand. All of Ms. Payne’s business records were at her residence. Those records had been removed, according to her, several days before the fire. She had been to the office on the night of the fire. The front door of her office was locked when the firemen arrived. The chief of police stated that he talked with Ms. Payne on one occasion shortly after the fire, but that she would not talk with him after that.

During the investigation which followed the fire, Ms. Payne stated that her 1980 income was more than $10,000 or $20,000, yet she reported that income as $5,382 on her income tax return. During her examination by Nationwide, she refused to name her accountant, or the name of the person who prepared her tax return; she would not identify her bank accounts; and she would not disclose the names of her partners. At another such examination, Ms. Payne again refused to identify the person who prepared her tax returns. However, at her counsel’s direction, she stated it was H & R Block, but later said it was an individual named John Owens. She stated that she had only one bank loan at the time of the fire, but later testified to loans she had received from six other banks. Her proof of loss submitted to Nationwide exceeded the $25,000 coverage; an estimator for Nationwide estimated the loss to be slightly more than $5,000. Ms. Payne claimed the loss of an antique desk worth $3,500; the estimator found no evidence that such a desk had been in the office at the time of the fire.

Nationwide’s evidence was disputed, especially that regarding the origin of the fire. Ms. Payne testified that she had been threatened by unidentified people over the telephone, attributing these threats to the fact that she had shown a house to a black couple. Nevertheless, Nationwide’s evidence in the breach of contract case made an issue of misrepresentations which might void the policy. Code of 1975, § 27-14-28, states:

“No misrepresentation in any proof of loss under any insurance policy shall defeat or void the policy unless such misrepresentation is made with actual intent to deceive as to a matter material to the ' insured’s rights under the policy.”

See also American Fire & Casualty Co. v. Archie, 409 So.2d 854 (Ala.Civ.App.1981).

In addition, Nationwide’s evidence tended to establish a lack of cooperation in Ms. Payne’s examination. The company was entitled to develop circumstantial evidence on the proof of arson, including the financial condition of the insured, Elgi Holding, Inc. v. Insurance Company of North America, 511 F.2d 957 (2d Cir.1975), and was entitled to require her examination under oath, Aachen & Munich Fire Ins. Co. v. Arabian Toilet Goods Co., 10 Ala. App. 395, 64 So. 635 (1914). Moreover, by the express terms of the policy, it became void “if any insured has intentionally concealed or misrepresented any material fact or circumstances related to this insurance.” Such a defense is recognized in Alabama. Section 27-14-28, supra; Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So.2d 19 (1952).

Thus, it is readily perceived that the trial court was not in error for denying Ms. Payne’s motion for a directed verdict in the contract action, because there were factual issues upon the validity of that claim. That being the case, Ms. Payne could not recover on her bad faith refusal claim; hence, the trial court did not err in granting summary judgment as to that plaim.

Let the judgment be affirmed.

AFFIRMED.

All the Justices concur.


author: ALMON, Justice.

text:
    RAINSVILLE HOUSING AUTHORITY, et al. v. HAMRICK CONSTRUCTION CORP.
    83-154.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    F.J. Allen II, Boaz, for appellants.
    John Baker, Fort Payne, for appellee.
   ALMON, Justice.

This is an appeal 'from a judgment granting a writ of mandamus ordering the defendant housing authorities to pay judgments previously obtained against them by the plaintiff. We recently decided an appeal involving the same controversy wherein we affirmed the trial court’s order quashing garnishments against the housing authorities. Hamrick Construction Corp. v. Rainsville Housing Authority, 447 So.2d 1295 (Ala.1984). The trial court granted the instant writ of mandamus after it quashed the garnishments and before this Court affirmed that order.

In the former appeal, we noted that a remedy by way of mandamus might be available to plaintiff Hamrick even though the housing authorities’ funds were not subject to garnishment. We cited Ex parte Jones, 399 So.2d 246 (Ala.1981), and Mayor and City Council of Anniston v. Hurt, 140 Ala. 394, 37 So. 220 (1904), both holding that mandamus may lie against municipal officials to compel payment of a judgment against the city.

The housing authorities filed their appellants’ brief before this Court announced its decision in the prior appeal and have not filed a reply brief, so we do not have a direct reply to the citation of authority in that opinion. The decision in Hamrick renders all but two of their arguments moot.

The first of the remaining arguments is that a housing authority is not a municipal corporation nor an arm or a subdivision thereof. This is true, and may be significant in some contexts, but it is not decisive in this appeal. As noted in Ham-rick, the legislature enacting the Housing Authorities Law declared that “An authority shall constitute a public body and a body corporate and politic exercising public powers ....” Code 1975, § 24-l-27(a). We also cited the statement in Rayborn v. Housing Authority of Washington County, 276 Ala. 498, 164 So.2d 494 (1964), that a housing authority’s “property for certain purposes is that of a municipal (county) corporation.” Housing authority officers are thus subject to mandamus under the same rationale and in the same circumstances as are public officials.

The housing authorities also argue that the instant case does not satisfy the requirements for issuance of a writ of mandamus as set out in Martin v. Loeb & Co., 349 So.2d 9, 10 (Ala.1977):

“(a) a clear legal right in petitioner to the order sought, (b) an imperative duty upon the respondent to perform accompanied by a refusal to do so, (c) a lack of another adequate remedy, and (d) the jurisdiction of the court must be properly invoked.”

Hamrick has a clear legal right to the enforcement of its judgment and, under our decision in Hamrick, lacks another adequate remedy.

The housing authorities claim that they have no duty to pay the judgments. They assert that Code 1975, § 24-l-6(a)(3), which requires housing authorities to take into account in determining necessary revenues “the cost of discharging all lawful obligations assumed by or imposed upon the authority or its property,” does not apply. They say that they have not assumed these obligations and the judgments have not been imposed upon them, because of the provision in § 24-1-40 that judgments shall not constitute a lien upon housing authority property.

We disagree. The housing authorities assumed these obligations by contracting with Hamrick for work in connection with the construction of rental units on the authorities’ property. Hamrick obtained judgments for the unpaid amounts due under the contracts. The housing authorities have not challenged these judgments. Furthermore, the judgments are lawful obligations imposed upon the authorities even though they do not constitute liens against the authorities’ property. The legislature gave housing authorities the power “[t]o sue and be sued,” Code 1975, § 24-1-27(a)(22). The fact that the legislature protected housing authority property from judgment liens does not bar the issuance of a writ of mandamus in the extraordinary case where housing authority officers refuse to pay validly imposed judgments.

Before issuing the writ of mandamus, the trial court gave the housing authorities the opportunity to present a plan for payment. They did not submit any such plan, so the court entered judgment issuing the writ directing the authorities to pay the amounts due on the judgments. Nothing in the record discloses that the housing authorities are financially unable to pay the judgments, nor that all of their rents and other monies are encumbered so that they would not be able to comply with the order. Neither do the briefs present anything from which we could conclude that the trial court abused its discretion in granting mandamus, so we are presented with nothing on which to reverse the judgment of the trial court. That judgment is affirmed.

AFFIRMED.

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


text:
    Ronald J. NEWMAN; Donald Newman; and Ronald J. Newman and Donald Newman, d/b/a Jim’s Emergency Medical Service, a partnership v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    83-239.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Theodore L. Hall, Mobile, for appellants.
    A. Neil Hudgens and Michael S. McGlo-thren of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   ALMON, Justice.

This appeal is taken from a summary judgment in favor of a third-party defendant insurance company. The effect of the holding is that the death of a patient being transported in an ambulance, allegedly due to the attendant’s failure to provide her with oxygen, is not covered by the ambulance company’s automobile liability insurance.

On August 25, 1980, an ambulance operated by Jim’s Emergency Medical Service answered a call to take Mrs. Willie Mae Evans to the Mobile Infirmary. Mrs. Evans was a cancer patient who was being given oxygen at home and needed it for the trip to the hospital. Her husband, Paul E. Evans, rode in the back of the ambulance with Mrs. Evans and an attendant, Don Dobbs. Mrs. Evans had a breathing device that consisted of tubes inserted into her nostrils. Dobbs connected this device to the oxygen tank in the ambulance and turned on the flow of oxygen.

During the trip, Mr. Evans reached over and turned up the flow of oxygen. Dobbs noticed this, but said nothing and did not turn the oxygen back down. The tank was initially about one-quarter full, and it ran out during the trip. The ambulance had another tank of oxygen which was full, but Dobbs did not begin using it. He testified on deposition that Mrs. Evans had been exhibiting Cheyne-Stokes Respiration, an uneven breathing pattern showing that a person is near death, since he had first seen her at her residence. Dobbs stated that approximately two minutes after the oxygen ran out, Mrs. Evans completely stopped breathing. He then administered CPR, cardio-pulmonary resuscitation, which included mechanical breathing by means of a device placed over her nose and mouth.

Mrs. Evans died in the ambulance. Her husband sued Ronald J. Newman and Donald Newman, individually and as partners doing business as Jim’s Medical Emergency Service, alleging that “As a proximate result of Defendants’ negligence or wantonness in failing to have a sufficient supply of oxygen, Willie Mae Evans suffered respiratory arrest from which she died.”

Defendants filed a third-party complaint against their insurance carrier, St. Paul Fire and Marine Insurance Company, requesting the court to declare that their contract of insurance afforded them coverage for the liability alleged by the plaintiff and that St. Paul had a duty to defend the action. St. Paul answered and filed a motion for summary judgment. The New-mans also filed a motion for summary judgment. The court granted summary judgment for St. Paul and made the ruling final pursuant to Rule 54(b), A.R.Civ.P.

The policy in question is a standard commercial automobile liability insurance policy. St. Paul Fire and Marine agreed to “pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.”

St. Paul contends that Mrs. Evans’s death was not “caused by an accident” and did not “result[] from the ownership, maintenance or use” of the ambulance.

In a case factually quite similar arising from the United States District Court for the Southern District of Alabama, the Fifth Circuit Court of Appeals held:

“Because Snow’s [the patient’s] injuries were the consequence of [the ambulance operator’s] intentional acts of strapping Snow down on his back while regurgitating and transporting Snow to a distant hospital despite his severe injuries, the trial court properly determined that the injuries were not ‘caused by accident,’ as required by the policy’s insuring clause. Thus the insurance company had no obligation to defend [the ambulance operator] or pay on his behalf any damages recovered by Mrs. Snow.”

Transit Casualty Co. v. Snow, 584 F.2d 97, 99 (5th Cir.1978).

The Fifth Circuit cited four Alabama cases in support of its interpretation that injuries which are foreseeable results of voluntary and intentional acts are not “caused by accident.” Id. Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754 (Ala.1976); Armstrong v. Security Ins. Group, 292 Ala. 27, 288 So.2d 134 (1973); Emergency Aid Ins. Co. v. Dobbs, 263 Ala. 594, 83 So.2d 335 (1955); O’Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580 (1936). None of these cases involved automobile liability insurance. The two recent cases turned on clauses excepting injuries “either expected or intended from the standpoint of the insured.” Blakeney, supra, at 755. Without such an exception in the automobile liability policy here at issue, we prefer not to rely on an accidental/intentional distinction.

We agree with the trial court that the injury alleged in the complaint is not covered by the Newmans’ automobile liability insurance. Allegedly improper treatment of a patient in an ambulance is not the kind of event which common understanding would consider to be an automobile accident. “[Provisions of insurance policies must be construed in light of the interpretation that ordinary men would place on the language used therein.” McKissick v. Auto-Owners Ins. Co., 429 So.2d 1030, 1033 (Ala.1983), citing Universal Underwriters Ins. Co. v. Marriott Homes, Inc., 286 Ala. 231, 238 So.2d 730 (1970). See, e.g., Employers’ Commercial Union Ins. Co. v. Danches, 311 So.2d 758 (Fla.Dist.Ct.App.1975), holding that delay by an ambulance company in delivering a patient to a hospital is not an accident arising out of the ownership, maintenance, or use of an automobile.

Although ambiguities in insurance policies are to be interpreted in favor of the insured, the courts are not at liberty to rewrite policies to provide coverage not intended by the parties. Kelley v. Royal Globe Ins. Co., 349 So.2d 561 (Ala.1977); Smith v. Kennesaw Life & Acc. Ins. Co., 284 Ala. 12, 221 So.2d 372 (1969); Maryland Cas. Co. v. Allstate Ins. Co., 281 Ala. 671, 207 So.2d 657 (1968). St. Paul contends that the injury at issue would normally come under errors and omissions coverage. We agree that nothing on the face of the policy, including the amount of premiums charged, would indicate an intent to cover injuries arising from treatment of the medical condition of a patient in addition to those arising from the operation of the vehicle as such.

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

AFFIRMED.

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


text:
    Henry Leno DAVIS v. Michael BALTHROP, etc., et al.
    83-371.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Daniel G. Sayers and J. Terry Reynolds, Jr., Mobile, for appellant.

      George L. Williamson of Brown, Hud-gens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   BEATTY, Justice.

The plaintiff appeals from a directed verdict in favor of the defendants. We reverse and remand.

Henry Davis, the plaintiff, was injured when a truck owned by Dauphin Construction Company, Ltd., (Dauphin) and driven by Dauphin employee Willie Anderson collided with his vehicle. Davis filed suit against Anderson and Dauphin and against Michael Balthrop, Robert Weaver, and Allen Horn, individually and as owners or partners of Dauphin. The complaint alleged negligence on the part of Anderson “while acting as the agent, servant or employee” of Dauphin and its owners. Prior to trial, Davis obtained a default judgment against Anderson. That judgment is not at issue in this appeal.

On the afternoon of May 26, 1980, Davis was driving west in his pickup truck on Spice Pond Road in Mobile County at approximately 35 miles per hour. The Dauphin truck driven by Anderson was traveling east at approximately 55 miles per hour, which was the speed limit for that area. At a curve in the road, the truck driven by Anderson moved into Davis’s lane. Davis attempted to avoid a collision by driving off the side of the road to the right, but the truck driven by Anderson struck his vehicle on the left side. Davis sustained physical injuries and his truck was “totalled” in the collision.

The collision occurred at approximately 5:30 p.m. and was witnessed by Reuben Johnson, who was traveling east behind Anderson. Johnson, testifying in the plaintiff’s behalf, stated that he was forced to stop after the accident because the two trucks were blocking the road. After that testimony, the following exchange then occurred:

“Q. [Plaintiff’s Attorney] And did you talk to [Anderson] after the accident?
“A. [Johnson] Yes. I took him to the telephone to call his company to tell them that he had an accident and he wouldn’t be back to report in.
“Q. You took him to the telephone? You took him, personally, to the telephone?
“A. His truck was out of commission.
“Q. To call his company?
“A. Right.
“Q. To tell them that he had had an accident and wouldn’t be able to report back in?
“A. Right.
“Q. In other words, he was telling them that he was—
“[Defendants’ Attorney] I’m going to object to that, Judge.
“Q. —going to come in, but he couldn’t come in — couldn’t, because of the accident. Is that right?
“THE COURT: Sustained.
“A. Right
“THE COURT: Did you make a motion to—
“[Defendants’ Attorney]: I make a motion to strike that from the record.
“Q. Now, did you—
“THE COURT: Granted.”

Johnson also stated that there was a ladder, a wheelbarrow, and “something else” on the Dauphin truck at the time of the collision. The plaintiff testified that in addition to the ladder and wheelbarrow, the Dauphin truck contained “some hoes and some shovels — and some more other items,” including some sacks.

At the close of the plaintiff’s case-in-chief, the defendants moved for a directed verdict. The motion was denied.

Defendants Michael Balthrop and Robert Weaver testified that Anderson did not have authority to drive the Dauphin truck at the time of the accident. Balthrop stated that the work day ended at 3:30 p.m., and Anderson should have returned the truck by 4:00 or 4:30 p.m. to the company lot where the truck and the tools used that day would be locked within a fence. Both Balthrop and Weaver stated that Anderson was not on any errand or mission for Dauphin at the time of the accident. Balthrop acknowledged on cross-examination, however, that Anderson was not allowed to drive the company truck home at night and that at the time of the accident Anderson’s personal van was in the company parking lot.

At the close of all the evidence, the defendants again moved for a directed verdict. After argument by counsel, the trial judge granted the motion and entered a judgment for the defendants. As this Court held in Tuskegee Auto Parts v. Dixie Highway Express, Inc., 276 Ala. 1, 2, 158 So.2d 645, 646 (1963):

“A directed verdict for the defendant can only be justified upon the theory that a plaintiff, upon whom rested the burden of establishing his right to recover, (1) wholly failed to adduce evidence to support his cause of action, or (2) that testimony of plaintiff’s own witnesses, without conflict, made out a defense of defendant. But if plaintiff makes out a prima facie case and the defense is dependent upon oral testimony, the court must leave credibility of the evidence to the jury. Schoenith, Inc. v. Forrester, 260 Ala. 271, 69 So.2d 454 [1953].”

Where there exists a scintilla of evidence which would support a verdict in favor of the nonmoving party, a directed verdict may not be granted. Feaster v. American Liberty Ins. Co., 410 So.2d 399 (Ala.1982). The trial court must submit the case to the jury “[i]f the evidence presents a mere gleam, glimmer, spark, smallest trace or scintilla to support the theory or to sustain the issue.” Baker v. Chastain, 389 So.2d 932, 934 (Ala.1980).

In reviewing a directed verdict case, this Court must examine the record to determine whether it contains a scintilla of evidence which would support the complaint. Ralls v. First Federal Savings & Loan Association of Andalusia, 422 So.2d 764 (Ala.1982). “[0]ur function is to view the evidence most favorable to the non-moving party; and if, by any interpretation, it can support any inference supportive of a conclusion in favor of the non-moving party, we must reverse.” Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979).

This Court stated in Perdue v. Mitchell, 373 So.2d 650, 653 (Ala.1979):

“To recover for damages for injuries sustained in an automobile accident against the driver’s employer upon a theory of respondeat superior, it is incumbent upon plaintiff to prove that the collision occurred while the driver was within the scope of his employment, and happened while he was in the accomplishment of objectives within the line of his duties. Cook v. Fullbright, 349 So.2d 23 (Ala.1977).”

It was uncontroverted at trial that Anderson was an employee of Dauphin and that he was driving a truck owned by the company. The only question was whether Anderson was acting within the line and scope of his employment at the time of the collision. We are of the opinion that Johnson’s testimony that he took Anderson to a telephone so that he could call his employer Dauphin “to tell them he had an accident and he wouldn’t be back to report in” raises at least an inference that Anderson was acting within the scope of his employment. Even though the plaintiff’s evidence was admittedly slight, the evidence on this point was conflicting and should have been submitted to the jury for resolution. Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972). See also State Farm Mutual Auto. Ins. Co. v. Boyer, 357 So.2d 958 (Ala.1978).

We note that defendants objected during Johnson’s testimony concerning Anderson’s call to Dauphin and that the trial court subsequently granted their motion to strike. There has been no contention, however, that Johnson’s entire testimony concerning the telephone call was excluded. In fact, defendants state in their brief:

“[Plaintiff’s] remaining witness, Mr. Reuben Johnson, testified that he took Anderson to the telephone to call his company to ‘... tell them that he had had an accident and he wouldn’t be back to report in ... ’ (R. 17). This is the only testimony in the transcript upon which [plaintiff] can rely to indicate an agency relationship between Anderson and the owner of the truck....
“[Defendants] point out to this Honorable Court that Mr. Johnson’s statement (R. 17) is the only testimony presented at the trial upon which [plaintiff] can rely to establish a master-servant relationship.”

While the testimony concerning Anderson’s telephone call to Dauphin initially came in as an unresponsive answer to the question “And did you talk to [Anderson] after the accident?” no objection was made by the defendants at that time. Nor was any objection voiced when Johnson was asked whether Anderson had called his company “[t]o tell them that he had had an accident and wouldn’t be able to report back in,” and responded, “Right.” It was only when plaintiff’s attorney was attempting to paraphrase what Anderson had told Dauphin that defendants objected. An objection made after a witness has answered responsively to a question comes too late. Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974). Therefore, defendants’ objection to this last question, which was sustained, could have had no effect on the prior question and answer. For this same reason, we conclude that the motion to strike was directed at and granted only as to Johnson’s last answer.

For the reasons stated above, the judgment in favor of the defendants is reversed and this cause is remanded for further proceedings. It is so ordered.

REVERSED AND REMANDED.

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


author: JONES, Justice.

text:
    Agnes KITCHENS v. WINN-DIXIE MONTGOMERY, INC., et al.
    83-586.
    Supreme Court of Alabama.
    Aug. 31, 1984.

      Cary L. Dozier, Troy, for appellant.
    Randall Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Richard F. Calhoun of Brantley & Calhoun, Troy, for appellees.
   JONES, Justice.

This is an appeal from the trial court’s order granting summary judgment in favor of Defendants/Appellees in a malicious prosecution action. We affirm in part, reverse in part, and remand.

FACTS

On the night of .April 6, 1983, a robbery took place at the Winn-Dixie store in Troy, Alabama. Charged with committing that robbery were Agnes Kitchens (Plaintiff/Appellant), Larry James, and Walter James. The complaint charging Kitchens with first degree robbery was signed by Tony Alcuri, an employee of Winn-Dixie, who was on duty at the Troy store on the night of April 6.

At the preliminary hearing, held on May 17, 1983, the judge discharged Kitchens, finding that “it appeared that there was not probable cause to believe that [Kitchens] was guilty as charged.” Later, the Pike County Grand Jury returned an indictment against Kitchens, charging her with conspiracy to commit robbery. At trial on this charge, Kitchens’ motion for acquittal, made at the close of the State’s case, was granted.

Kitchens instituted this action against Winn-Dixie Montgomery, Inc., and Tony Al-curi, alleging malicious prosecution and false imprisonment. On February 23,1984, the trial judge granted Defendants’/Appel-lees’ motion for summary judgment. From that order, Kitchens appeals.

ISSUE

We quote directly from Appellant’s brief:

“Appellant contends that there is a substantial issue which exists as to whether or not Appellees acted without probable cause and with malice or reckless disregard of Appellant’s rights when Appellees instituted Criminal Proceedings against her (Appellant).”

The issue presented by this appeal, then, is whether the evidence created a genuine issue of material fact with regard to the existence vel non of the elements of malicious prosecution, keeping in mind that Kitchens’ claim is confined to the alleged malicious prosecution arising out of the signing of a warrant by Tony Alcuri. In other words, by so confining her contention of error, Appellant waives any claim with respect to the prosecution growing out of the grand jury indictment.

DECISION

In order to succeed in a malicious prosecution action, the averments and proof must show: 1) a judicial proceeding; 2) instigated by the defendant; 3) want of probable cause; 4) malice; 5) the termination of the judicial proceeding favorably to the plaintiff; and 6) damages. King v. Farrell, 55 Ala.App. 147, 314 So.2d 68 (1975). If any of these elements is missing, the action will fail.

It is undisputed that the Defendants initiated the original criminal proceedings against the malicious prosecution Plaintiff, who was discharged for want of probable cause by the district court upon preliminary hearing. Because malice may be inferred from want of probable cause, S.S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977), the crucial question with regard to the correctness of the summary judgment order is the determination of the existence vel non of probable cause as to this limited phase of the prosecution.

“Probable cause,” as that term is used in malicious prosecution actions, is defined as “such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest or strong suspicion that the person arrested is guilty.” Hanson v. Couch, 360 So.2d 942, 947 (Ala.1978). The evidence shows that on the day after the robbery, Tony Alcuri went to the Troy Police Department to swear out warrants against the two men allegedly involved in the robbery. When he arrived, he was presented with three warrants instead of two. Although Alcuri testified that he “was not familiar with the third warrant against Kitchens,” William Stone, the Clerk of the Pike County Circuit Court, assured Alcuri that enough evidence existed to connect Kitchens with the two men as an accomplice.

As with any issue on summary judgment, if the facts are not in dispute, a question of law is presented to be decided by the trial court; where the evidence is in conflict, the issue must go to the jury. S.S. Kresge v. Ruby, supra. In view of the trial mandated by this appeal on remand, it is inappropriate to detail the evidence and its conflicting inferences bearing on the probable cause issue. Suffice it to say, there was certain evidence tending to connect this Plaintiff with the two men who admittedly committed the robbery. This evidence, however, as determined by two different courts, failed, as a matter of law, to connect her to the crime.

Although the finding at the preliminary hearing of no probable cause is prima facie evidence of want of probable cause, the defendants in a malicious prosecution action must be given the opportunity to rebut that presumption. Johnson v. Haynie, 414 So.2d 946 (Ala.1982). Here, the admission into evidence of Plaintiffs subsequent indictment by the grand jury is not only appropriate, as bearing on that issue, but its admission vitiates the prima facie effect of the prior “want of probable cause” adjudication of the district court on preliminary hearing. The familiar principle, recently restated in Alabama Power Co. v. Neighbors, 402 So.2d 958 (Ala.1981), is here applicable:

“ ‘In malicious prosecution the general rule is that the finding of an indictment by a grand jury against one charged with crime is prima facie evidence of the existence of probable cause, and that the acquittal of a defendant upon the trial does not tend to show a want of probable cause for believing him guilty of the offense charged when the arrest is made or prosecution initiated....’ ” 402 So.2d at 967. (Emphasis added in Alabama Power Co. v. Neighbors.)

Thus, the trial court correctly overruled the Plaintiffs motion for summary judgment. By the same standard, the court should have overruled the Defendants’ motion for summary judgment, because the Defendants’ evidence, although rising to the level of a prima facie showing of probable cause, does not deprive Plaintiff, as a matter of law, of her right to rebut it. While Plaintiffs evidence of dismissal of the charge by the district court has lost its prima facie effect, it is nonetheless admissible; and this evidence, along with all the other evidence tending to show lack of probable cause, makes this case, as to the issue presented on appeal, inappropriate for summary judgment.

Consequently, that part of the judgment dismissing the Plaintiff’s claim for malicious prosecution following the indictment for conspiracy to commit robbery is affirmed (that issue being waived on appeal); that part of the judgment dismissing Plaintiffs claim for malicious prosecution growing out of the complaint initiated by the Defendants and resulting in the dismissal of the charges against the Plaintiff in preliminary hearing is reversed; and this cause is remanded for a trial as to that phase of the prosecution.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: PER CURIAM.

text:
    Chris McCOLLUM v. Maxie Mae TOWNS, Administratrix of the Estate of Mary Elizabeth Weston, Deceased.
    83-675.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Jackie McDougal, Bessemer, for appellant.
    Alexander M. Smith, Oneonta, for appel-lee.
   PER CURIAM.

This is the second time this case, involving fees awarded to the administratrix of the estate of Mary Elizabeth Weston, has been before us. On the prior appeal, we reversed and remanded the case to the circuit court to determine the correct amount of the administratrix’s fee. McCollum v. Towns, 435 So.2d 17 (Ala.1983).

On remand, the trial court held a hearing and entered an order, reading in pertinent part:

“In consideration of the Supreme Court’s order reversing and remanding this case, the Court took additional testimony from the administratrix on certain aspects of her services performed on behalf of the above estate. In consideration of that testimony and in consideration of a careful review of the prior testimony in this case, as well as a careful review of the Probate Court file, and the documentary evidence presented to date to this Court, it is the finding of this Court that the administratrix Maxie Mae Towns (McDonald) faithfully performed the charge placed upon her as adminis-tratrix of this estate and in the performance of her duties did render special and extraordinary services to said estate.
“It was not the intention of this Court in its order of June 21, 1982, to characterize all of the services rendered by the administratrix as special or extraordinary. This Court did not consider the ad-ministratrix’s efforts in inventorying the property of the deceased as extraordinary, nor the administratrix’s efforts in collecting and assembling this property for public sale. Further, this Court does not consider a special or extraordinary service the efforts of the administratrix in opening a bank account, keeping account of the monies in said estate, payment of debts of the estate, including the federal estate tax, and the compiling of the final account for said estate. These are some of the normal responsibilities chargeable to the administratrix which were faithfully performed and for which this Court in its order of March 15, 1982, set aside the sum of $1,438.81 in compensation.
“However, it was the opinion of this Court in its decision of June 21, 1982, and is the opinion of this Court this date, that the administratrix did perform certain special or extraordinary services for which additional compensation was in order. Giving careful consideration to the circumstances of the administration, which, by the testimony taken before this Court and the records of the Probate Court for Blount County, Alabama, indicate that the deceased died intestate with no living children or grandchildren or lineal descendant, no living mother or father, no living brother or sister, all of the heirs at law and distributees of the deceased being nieces or nephews or their descendants. The administratrix in question is a niece of the deceased, was appointed administratrix after a hearing in which multiple petitions to administer the estate had been filed and immediately set about the task of determining and locating the heirs at law in question, many of which had not seem each other in years and some of which had never met.
“It is apparent from the records of the Probate Court for Blount County, Alabama, that the intestate had made no testamentary arrangements whatsoever regarding the nature and extent of her property, the responsibilities for accumulating and determining the same falling upon the administratrix as her natural charge. It is true that the bulk of this estate represented the sale of an eighty acre tract of property the intestate owned in fee simple. The testimony revealed that the administratrix had this property test drilled for coal after the death of the intestate and this property sold for the price of $301,000.00 for commercial coal development largely through the efforts of the administratrix.
“The Court further notes from the testimony of the administratrix and the review of the Probate Court records that the administratrix prepared for and appeared at at least five hearings before the Probate Court on matters related to the administration of this estate. Additionally, it is of note that the administra-trix continues to serve at this date in her fiduciary capacity as administratrix since the Probate Court orders required that she remain as administratrix until receipt of the Internal Revenue Service’s estate tax closing letter to represent the estate in the event additional estate taxes were required to be paid, these proceedings being appealed prior to ultimate receipt of the estate tax closing letter.
“The Court further finds from the testimony and the accounting as submitted to the Probate Court that the administra-trix through shrewd and timely investment of the estate proceeds earned the sum of $11,544.55 on the estate proceeds up to the date of final settlement and date of disbursement of the funds to the heirs at law.
“This Court has attempted to give careful consideration to all of the testimony and evidence presented to this Court on the issues presented by the original appeal challenging the adminis-tratrix’s compensation. It was within the discretion of the Probate Court for Blount County, Alabama, to award additional compensation for special and extraordinary services and same was awarded. This Court considers the efforts of the administratrix in locating the heirs, her efforts in the preparation and attendance at the numerous hearings required for administration of this estate in the Probate Court for Blount County, Alabama, and her overall management of this estate to be special and extraordinary service on behalf of the state and to the benefit of the numerous heirs at law.
“Giving consideration to the time expended by the administratrix, the particular circumstances of the administration of this estate and the ends accomplished, as well as the character of the services rendered by the administratrix, it was and is the finding of this Court that Maxie Mae Towns (McDonald) is entitled to additional compensation for the special and extraordinary services she performed. Accordingly, this Court reaffirms the decision of the Probate Court for Blount County, Alabama, as the original hearing Court, and its initial finding that the administratrix was entitled to the sum of $14,218.00 for her total services on behalf of said estate. It is the finding of this Court that the said $14,-218.00 is fair compensation for the trouble, risk and responsibility of the admin-istratrix as well as the special and extraordinary services she performed for said estate.”

The determination of the amount of fees to be awarded for extraordinary services rendered in administering estates rests with the trial court. We cannot say that the trial court abused its discretion in awarding the fee in this ease, considering all of the factors involved, including the time, risk, and responsibility involved. Armstrong v. Alabama National Bank of Montgomery, 404 So.2d 675 (Ala.1981). The judgment of the trial court is, accordingly, affirmed.

AFFIRMED.

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


text:
    Wilbur Michael WILLIAMS and Julie W. Williams v. The BANK OF TALLASSEE.
    83-742.
    Supreme Court of Alabama.
    Aug. 31, 1984.

      Jere L. Beasley of Beasley & Wilson, Montgomery, for appellants.
    John I. Cottle III of Cottle & Cottle, Tallassee, for appellee.
   JONES, Justice.

Plaintiffs appeal from the trial court’s order granting Defendant’s motion to dismiss the complaint for failure to state a claim upon which relief may be granted. We affirm.

Plaintiffs filed a four-count complaint alleging fraud, negligence, wanton conduct, and willful misrepresentation on the part of the Defendant Bank in the sale of a certain parcel of land. Plaintiffs concede the correctness of the order dismissing two counts of the complaint. They argue, however, that Counts One and Four were improperly dismissed.

Count One of the complaint states, in pertinent part:

“3. Plaintiffs, who are husband and wife, negotiated with Defendant Bank for the purchase of lots 1075, 1074-A, and 1075-A of the Mt. Vernon-Woodbury Mills Sunset Hills Subdivision in Tallas-see, Alabama, from July 1, 1983, up to November 5, 1983.
“4. During the negotiations referred to above, Defendant Bank represented to Plaintiffs that Defendant Bank was the owner of these lots subject to the statutory right of redemption from foreclosure of that certain mortgage given by J.W. Patterson, Jr., and wife, Sandra B. Patterson, on May 1, 1971, to The Bank of Tallassee.
“5. At all times material hereto, Defendant Bank had actual knowledge of the existence of a second mortgage from J.W. Patterson, Jr., and wife, Sandra B. Patterson to W.B. Reneau and John E. Enslen, which second mortgage had been duly foreclosed by the mortgage holders.
“6. Defendant Bank knew that Re-neau and Enslen were claiming a substantial interest in the subject property.
“7. Plaintiffs made known to Defendant Bank during the negotiations that they were planning to build a home on the combined properties to be purchased and wanted a clear title to the property purchased from the Bank.
“8. Defendant Bank promised Plaintiffs that it would make an initial loan to them to purchase the property and would make a construction loan to them in connection with the building of said home.
“9. Defendant Bank further represented to Plaintiffs that title to the property was good and that there were no other claims or encumbrances against the property.
“10. Plaintiffs were told by Defendant Bank that they would not need an attorney on the transaction and that the Bank’s attorney would handle all legal work for them since he was already familiar with the property.
“11. Plaintiffs relied upon the representations of Defendant Bank and purchased the subject property, entered into a loan agreement with Defendant Bank, allowed the Bank’s attorney to handle the legal work, agreed to a construction loan from Defendant Bank, and started paperwork for a permanent loan from Real Estate Financing, Inc., Montgomery, Alabama.
“12. On or about December 28, 1983, Plaintiffs learned of the existence of the second mortgage and its foreclosure and learned that the mortgage holders referred to above were claiming a substantial interest in the subject property.
“17. As a result of the fraudulent misrepresentations of Defendant Bank, Plaintiffs were injured and damaged. ...”

Count Four realleges the same facts, and adds:

“25. Defendant Bank acted in such a reckless manner with total disregard to Plaintiffs’ rights so as to amount to an intentional injury to Plaintiffs.”

“[A] complaint must be construed in favor of the pleader and should not be dismissed unless it appears beyond all doubt that the plaintiff can prove no facts in support of the claim which would entitle him to relief under some legally cognizable theory.” Roberts v. Meeks, 397 So.2d 111, 113 (Ala.1981), citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). With such a broad standard of review (sometimes referred to as the “any discernible circumstances” rule), it is rare that we affirm judgments granting motions to dismiss. When motions to dismiss are granted, the plaintiff should always be afforded leave to amend. Roberts, supra, at 114. In this case, however, Plaintiffs declined to plead further.

The basis of the Plaintiffs’ charge of fraud is that the Bank, in telling Plaintiffs of the existence of an equitable right of redemption, did not disclose the identity of those who held the right of redemption— namely, the second mortgagees. This failure to disclose, Plaintiffs assert, amounted to fraud. On the other hand, Defendant contends that the complaint specifically states that the Bank informed Plaintiffs that the real property was “subject to the statutory right of redemption from foreclosure.”

We are unable to discern any set of circumstances, from the allegations of the pleadings, to suggest that any actionable wrong was committed by the Bank by its failure to specify precisely who held that right of redemption. As between different classes of holders of redemption rights, we are unable to perceive any substantive difference that adversely affects, in different degrees, the material rights of these Plaintiffs. A claim of misrepresentation cannot be grounded upon the mere speculation or imagined notion that an undisclosed second mortgagee might increase the nature and character of the right of redemption encumbrance. Because the statement of the claim affirmatively shows the absence of the requisite elements of the tort of suppression of a material fact (Code 1975, § 6-5-102), the trial court’s order granting Defendant Bank’s motion to dismiss is due to be, and it hereby is, affirmed.

AFFIRMED.

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


text:
    Jacqueline S. BENEFIELD v. F. HOOD CRADDOCK CLINIC, et al.
    82-1133.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      Frank 0. Hanson, Jr., of Emond & Vines, Birmingham, for appellant.
    Carol A. Smith of Starnes & Atchison, Birmingham, for appellees F. Hood Crad-dock Clinic, Dr. J.S. Bailey and Dr. W.R. Gammon.
    Edward 0. Conerly of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee Sylacauga Hosp.
   ALMON, Justice.

This is a case in which a patient sued her doctors, the hospital, and others, for fraudulently misrepresenting and concealing the true cause of complications she suffered while on the operating table. Defendants argued that the suit was a medical malpractice action and barred by the statute of limitations. The trial court agreed and granted defendants’ motions to dismiss. Plaintiff contends that she is suing for damages arising from the fraud, not the medical treatment, and that she discovered the fraud less than a year before bringing the action.

Jacqueline S. Benefield underwent surgery at Sylacauga Hospital on January 11, 1972. According to the allegations of her complaint, she suffered injury because of improper administration of anesthesia or improper operation of the anesthesia machine. She alleged that her doctors knew that the anesthesia procedure was the cause of her injury but intentionally and fraudulently represented to her that her injuries “were caused by naturally occurring medical or biological problems unrelated to her medical care.”

The complaint recited as damages that Benefield relied on the fraudulent misrepresentations and “has for the past ten years declined medical treatment, declined to have children and undergone severe emotional trauma and fear of death as a result.” The complaint also alleged that Benefield did not discover the fraud until November 19, 1981, and could not have discovered the fraud earlier. Benefield filed her complaint on May 19, 1982.

On January 28, 1983, Benefield filed an amendment to her complaint, adding the following paragraph:

“This claim and cause of action of the plaintiff is brought pursuant to § 6-2-3 of the Code of Alabama as a fraud action and not as a malpractice action pursuant to § 6-5-482. It is plaintiff’s claim that the defendants fraudulently misrepresented to her that she had a biological or medical condition which she did not, in fact, have. In reliance upon said misrepresentations, the plaintiff believed that she did have such a condition and in reliance thereon determined not to have children, declined or refused various forms of medical care and has since the date of said fraud lived in fear of impending loss of life from said non-existent medical condition, resulting in great mental anguish and suffering. All of said injuries resulted from fraudulent misrepresentations, not from the underlying medical care that occurred prior to the defendants’ misrepresentations. Plaintiff does not claim that the alleged injuries were caused by the underlying medical care.”

Defendants filed motions to dismiss the complaint as last amended, chiefly on the ground that the issues had been decided by the recent case of Horn v. Citizens Hospital, 425 So.2d 1065 (Ala.1982). The motions cited Horn for the assertions “that [an action for] fraudulent concealment against a doctor is governed by the Medical Liability Act Statute of Limitations [Code 1975, § 6-5-482(a) ] of four years” and that Benefield’s action was barred under this limitation.

The trial court granted the motions to dismiss, stating in the course of its order,

“that the Plaintiffs relationship with the Defendants, out of which this action arose, was that of a patient; that the facts and circumstances out of which the action arises was from a result of this relationship. The Plaintiff cannot avoid Section 6-5-482(a) by merely stating that the action is based solely on fraud.”

Benefield argued in opposition to the motions to dismiss that Horn was distinguishable because it dealt with a fraudulent concealment “made only for the purpose of denying recovery for the actual injuries sustained by the malpractice which is concealed.” This is a distinction without a material difference. The fraudulent misrepresentations which Benefield alleges her doctors made occurred, if at all, during the course of her treatment by her physicians. They were inextricably a part of the postoperative doctor-patient consultations, just as the alleged fraudulent concealments were in Horn.

Not only were the allegedly fraudulent communications part and parcel of the doctor/patient relationship, but they also related solely to Benefield’s medical condition. As this Court has observed, in holding that an action brought for assault and battery was barred by the medical malpractice statute of limitations, “The form of the action is not the decisive test in actions against physicians, surgeons and dentists for malpractice. The decisive test is the substance of the action.” Sellers v. Edwards, 289 Ala. 2, 6, 265 So.2d 438, 440 (1972).

Benefield attacks the application of the Medical Liability Act to her case as unconstitutional under § 13 or § 45 of the Constitution of Alabama of 1901. Both of these arguments depend on her insistence that this is a fraud action, not a medical malpractice action. She has not been deprived of a remedy for her injury, in contravention of § 13; she had a remedy, but it now is barred by the statute of limitations, as was the case in Horn. Nor does the Act apply to two subjects, medical malpractice and fraud; it applies only to medical malpractice, and therefore does not violate § 45.

Therefore, just as in Horn, we find that the statute of limitations found in § 6-5-482(a) applies, not the tolling provision for fraud claims found in § 6-2-3, and thus this action is time-barred. The judgment of the trial court dismissing the action on this basis is due to be, and it is hereby, affirmed.

AFFIRMED.

All the Justices concur.


author: MADDOX, Justice.

text:
    Jacinda Nicole RAGSDALE, a minor, wholly dependent child of Dennis Townley, deceased, who sues by her next friend and legal guardian, Joyce Victoria Ragsdale v. ALTEC INDUSTRIES, INC., Mobile Aerial Towers, Inc., Prulease, Inc., et al.
    82-1224, 83-111.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      R. Bradford Wash of Hardin & Hollis, Birmingham, for appellants.
    Robert D. Hunter and Sally A. Sharp of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee Altec Industries, Inc.
    Dan H. McCrary of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, for appellee Prulease, Inc.
   MADDOX, Justice.

These appeals were consolidated because they arise from the alleged wrongful death of a workman covered by Workmen’s Compensation. The first question presented is whether the trial court erred in granting summary judgment in favor of the defendants on the ground that a minor child, who is adopted prior to her natural father’s death and is receiving no support from him at the time of his fatal injury lacked standing to sue as a “dependent” for his wrongful death under the provisions of Code 1975, § 25-5-11. This question was raised in appeal No. 82-1224. The minor child, after the date of this adverse ruling, sought and obtained permission to amend her original complaint to add the personal representative of the deceased workman as a party plaintiff. In fact, various procedural motions were filed in this case and judgments were entered on the various motions, but in reviewing the various motions and judgments, we are convinced that the question of the minor’s right to appeal the trial court’s judgment entered against her was preserved in this case. By treating the various motions and judgments as we do, we believe we follow the spirit of Rule 1, Ala.R.App.P., which states that the appellate rules “shall be construed so as to assure the just, speedy and inexpensive determination of every appellate proceeding on its merits.” In this case, therefore, we will treat the appeal by the minor in 82-1224 as preserving her right to question the trial court’s ruling that she lacked standing to sue. We will not treat the question of whether she could amend to add the personal representative in view of our holding that she did have standing. We understand that the issues in that appeal (83-111) were raised only as a result of what we have now determined to have been an erroneous ruling on the question of the minor’s right to sue as a “dependent”; therefore, we consider the issues in appeal No. 83-111 to be moot and that the appeal is due to be dismissed.

The essential facts are as follows:

Joyce Victoria Ragsdale married Dennis Townley in 1970, and the appellant minor, Jacinda Nicole Ragsdale, was born on January 7, 1971. The Townleys were divorced in February of 1977. Victoria received custody of Jacinda. Dennis made monthly child support payments and had visitation rights. On June 1, 1978, Victoria married James Ragsdale, who adopted Jacinda in January of 1980. Dennis consented to the adoption, and never again visited Jacinda or paid child support.

On July 1, 1980, Dennis Townley was fatally injured while working in the line and scope of his employment with Alabama Power Company. Subsequently, on March 19, 1981, the Circuit Court of Lee County awarded Workmen’s Compensation benefits to the decedent's only child, Jacinda. On July 1,1981, Jacinda, as dependent child of Dennis Townley, by and through her next friend, filed a third-party wrongful death action against appellees. On June 27, 1983, appellees filed motions for summary judgment on the ground that Jacinda was not a “dependent” of the decedent and therefore lacked capacity to sue under Code 1975, § 25-5-11. The basis of appel-lees’ motion for summary judgment was that Jacinda had been adopted prior to the death of her natural father, and was not receiving child support from him at the time of his death.

We now address the appellant's request for review of the trial court’s order of July 29, 1983, in case No. 82-1224, which granted summary judgment in favor of the defendants on the ground that Jacinda was not “legally dependent” upon her natural father at the time of his death, and, thus, lacked standing to sue.

Code 1975, § 25-5-1(2), defines “child” or “children” as follows:

“CHILD or CHILDREN. Such terms include posthumous children and all other children entitled by law to inherit as children of the decedent; stepchildren who were members of the family of the deceased, at the time of the accident, and dependent upon him for support; a grandchild of the deceased employee, whose father is dead or an invalid, and who was supported by a member of the family of such deceased grandparent at the time of the accident.” (Emphasis added.)

Appellees contend that because Jacinda was not receiving financial support from her natural father, she was not “legally dependent” upon him. The definitions for the Workmen’s Compensation Act, however, do not require that the child receive financial support from her father in order to be deemed his dependent. Furthermore, Code 1975, § 25-5-1(3), part of the Workmen’s Compensation Act, defines dependent child as follows:

“DEPENDENT CHILD OR ORPHAN. An unmarried child under the age of 18 years or one over that age who is physically or mentally incapacitated from earning.”

We construe legislative .intent to be that “posthumous children and all other children entitled by law to inherit as children of the deceased” are “dependents” if they qualify under the provisions of Code 1975, § 25-5-1(3). As we construe legislative intent, only stepchildren and grandchildren must be dependent, in fact, upon the deceased for support in order to be considered a “child” under the Act. Here, Jacinda fits within the definition of “child” because she is entitled by law to inherit from the deceased. Although Jacinda had been adopted six months prior to the decedent’s death, this did not affect her right to inherit from or through either natural parent. See § 43-8-48(1), Code 1975 (1982 Repl.Vol.), which provides:

“An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the right of the child to inherit from or through either natural parent.”

Jacinda also meets the definition of a dependent child, since she is under 18 years old and is not married.

The case of Central Foundry Company v. Brown, 381 So.2d 635 (Ala.Civ.App.1979), supports appellant’s contention that she is “dependent” within the context of Code 1975, § 25-5-11. In Central Foundry, the Court stated the following:

“[E]very child under the age of 18 is conclusively presumed to be ‘wholly dependent’ upon its natural parent, even though at the time of death of the parent, the child had been adopted by and is living with adoptive parents. While this may in some instances result in a double dependency, we do not find this disturbing.”

381 So.2d at 636.

In Central Foundry, the Court held that adopted children were entitled to death benefits pursuant to Code 1975, § 25-5-60 (part of the Workmen’s Compensation Act), for the death of their natural father who was killed in an industrial accident. The appellees contend that Central Foundry is limited to article 3 of Chapter 5 of Title 25, Code 1975, and, because the instant case is brought under article 1 of that chapter, it is inapplicable here. We disagree.

Although Central Foundry dealt with death benefits and the instant case deals with damages for wrongful death, we believe that the holding in Central Foundry is applicable to the entire Workmen’s Compensation Act. In Central Foundry the Court reviewed the entire Act and concluded the following:

“There is no statement in the Workmen’s Compensation Act which indicates that the act of adoption takes the child out of the terminology of ‘children’ of his natural father. All that is required is that the adopted child be entitled to inherit as a child of the deceased.”

381 So.2d at 636.

It would be inconsistent to find that a child was a dependent and, therefore, enti-tied to receive death benefits, but was not a dependent for purposes of maintaining a wrongful death suit pursuant to Code 1975, § 25-5-11.

We recognize that other jurisdictions hold that the statutory right of a child to recover for the wrongful death of its natural parent is divested once the child is adopted. See Powell v. Gessner, 231 So.2d 50 (Fla.Dist.Ct.App.1970); adopted by Supreme Court of Florida, Gessner v. Powell, 238 So.2d 101, 102 (Fla.1970); Johnson v. Parrish, 159 Ga.App. 613, 284 S.E.2d 111 (1981); Cormier v. Williams/Sedco/Horn Constructors, 460 F.Supp. 1010 (E.D.La. 1978); Go International, Inc. v. Lewis, 601 S.W.2d 495 (Tex.Civ.App.1980); Simmons v. Brooks, 342 So.2d 236 (La.Ct.App.1977). The rationale of these decisions is based upon the proposition that adopted children have no right of recovery for the wrongful death of the natural parents because the right of recovery is not a right of inheritance, but instead is a purely statutory right, and is divested when the biological child is adopted. These cases are not persuasive. Here, the definition of a “child” is one “entitled by law to inherit as [a child] of the deceased,” (emphasis added) Code 1975, § 25-5-1(2), and under § 43-8-48(1) this child had the right to inherit from the deceased.

We specifically hold that the minor child here was a “dependent” within the meaning of Code 1975, § 25-5-11. Under Code 1975, § 25-5-11, “if the deceased is an employee coming within the provisions of Workmen's Compensation and has dependents, any action for his wrongful death against a negligent third party must be brought by his dependents” and not the personal representative. Braxton v. Dixie Electric Cooperative, 409 So.2d 822, 823 (Ala.1982).

The judgment of the trial court in case 82-1224 is due to be reversed, and the judgment in ease 83-111 is due to be dismissed.

REVERSED AND REMANDED AS TO CASE 82-1224; AND IN CASE 83-111, APPEAL DISMISSED.

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

      . Although § 43-8-48(1) became effective January 1, 1983, after this suit was brought, it did not change the prior law in this regard. See § 43-4-3, Code 1975.


text:
    REPUBLIC NATIONAL BANK OF DALLAS v. Gaines L. HOWELL.
    83-533.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    Jerry L. Turner, Chatom, for appellant.
    Wallace H. Lindsey, III, Butler, for ap-pellee.
   MADDOX, Justice.

This is a suit to enforce a judgment on a promissory note rendered by the district court of Dallas, Texas.

On August 10, 1973, Republic National Bank of Dallas (Republic) obtained a consent judgment against Gaines L. Howell in the amount of $106,278.55. The judgment stemmed from a loan made by Republic to Howell of $78,000 and included unpaid interest accruing thereon since 1969.

Republic did not collect the judgment, but on January 29, 1980, the parties entered into an agreement of release and satisfaction of the judgment. Although the agreement recites only $10.00 as monetary consideration, Howell’s undisputed testimony is that he actually paid $2,500 for the release. Contemporaneous with the release, Howell executed two promissory notes in the amount of $68,017.26 and $92,-916.72 respectively.

In April 1980, Howell moved from Dallas to Chatom, Alabama, in Washington County. On November 14, 1980, Republic obtained a judgment on the two notes against Howell in the district court of Dallas, Texas. The judgment was in the amount of $166,336.68, plus interest, and attorney’s fees of $16,630.77, plus interest.

On April 6, 1981, Republic brought suit in Washington County to enforce the November 14 judgment. Howell answered with a general denial, and he subsequently amended his answer to include fraud as a defense. Republic twice moved for summary judgment, presenting certified copies of the Texas judgment. Both motions were denied, as was its motion for reconsideration.

' The case was tried before a jury, which found for Howell. Republic appeals here, asserting that it was entitled to enforcement of the Texas judgment as a matter of law. We agree.

As we stated in Morse v. Morse, 394 So.2d 950 (Ala.1981):

“The Constitution of the United States, Article IV, Section 1, requires that ‘full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.’ The judgment of the court of another state having jurisdiction of the subject matter and persons is entitled to full faith and credit in Alabama courts.”

The full faith and credit clause generally requires every state to give foreign judgments at least the res judicata effect which the judgment would have been accorded in the state in which it was rendered. Wilson v. Lee, 406 So.2d 416 (Ala.Civ.App.1981).

It is undisputed that Howell received service of process, that he had notice of the November 14 hearing, that he appeared through his attorney at that hearing and that he entered only a general denial, choosing not to raise affirmative defenses or attack the jurisdiction of the Texas court. By so doing, he submitted himself to the jurisdiction of that court. Hazen Research, Inc. v. Omega Minerals, 497 F.2d 151 (5th Cir.1974).

Therefore, the properly authenticated judgment of the Texas court, that court having jurisdiction, is conclusive as to the question of Howell’s indebtedness, Mason v. Calhoun, 213 Ala. 491, 105 So. 643 (1925), and is res judicata in Alabama. Wilson, supra. No other defenses, such as fraud, are now open to inquiry. Helton v. Turner, 228 Ala. 403, 153 So. 866 (1934). Consequently, Howell’s claim that prior to execution of the notes in question, an officer of Republic told him that the bank would take no action to collect on the notes could not be raised in the Alabama proceeding. This defense might have been valid if timely raised at the Texas hearing, but the defense clearly goes to the merits of the cause of action litigated in Texas, and it should have been raised at the Texas hearing and may not be raised here to attack the validity of the judgment resulting from that hearing. Tongue, Brooks & Co. v. Walser, 410 So.2d 89 (Ala.Civ.App.1982).

Because the Texas judgment is res judi-cata, there was no material issue left in dispute, and summary judgment should have been granted. The trial court’s failure to grant summary judgment was error, Wilson, supra, and its judgment entered upon the jury verdict is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Nellie MONTGOMERY v. Thelma BURCHELL, Leonard Hogan, et al.
    83-541.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    Eddie Beason of Fine & Associates, Rus-sellville, for appellant.
    Sherman B. Powell, Jr. and James Francis, Decatur, for appellees.
   MADDOX, Justice.

This is an appeal from the trial court’s denial of a Rule 60(b), Ala.R.Civ.P., motion for relief from a judgment entered in a will contest case.

The facts are undisputed. On January 6, 1981, the will of Wilmer Britnell was admitted to probate in Franklin County.

On July 6, 1981, Nellie Montgomery, through her attorney, filed a will contest in probate court and demanded transfer to circuit court. It was so transferred. On March 18, 1983, the proponents moved to dismiss the contest because the circuit court lacked jurisdiction under Code 1975, § 43-8-199. Their motion was granted on May 12, 1983. On December 13, 1983, Ms. Montgomery filed a motion, pursuant to Rule 60(b), for relief from the order dismissing her contest. She claimed that she had received no notice of the trial court’s action which dismissed her contest of the will until after the time within which to file post-trial motions or an appeal. Her motion was denied.

She appeals here, contending that the trial court erred in not granting her Rule 60(b) motion.

In her brief, Ms. Montgomery contends that she intended her motion to be one pursuant to Rule 60(b)(6), but the motion itself contained no such designation. She argues, in part, as follows:

“The Alabama Court of Civil Appeals has stated that relief under Rule 60(b)(6) is available only in the most extraordinary and compelling circumstances. Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979). Chief Justice Torbert, dissenting in Textron, Inc. v. Whitfield, 380 So.2d 259, 261 (Ala.1979), stated that ‘Rule 60(b)(6) allows the court to vacate a final judgment only if a set of exceptional circumstances is alleged demonstrating a situation of extreme hardship.’ The circumstances before the trial court in this case were extraordinary, compelling and, if allowed to stand, would be an extreme hardship to the appellant. If allowed to stand, the court’s ruling denying the Rule 60(b)(6) motion would have the effect of denying the appellant the right to request the trial court to reconsider its decision on the merits through a ‘motion for rehearing’ and, furthermore, the court’s ruling would, in effect, deny appellant the opportunity to appeal the case on its merits.”

She also claims that the Court of Civil Appeals, in Blackmon v. W.S. Badcock Corp., 342 So.2d 367 (Ala.Civ.App.1977), affirmed a trial court’s granting of a Rule 60(b)(6) motion because the movant had received no notice of the entry of a default judgment. She claims to be similarly situated.

The proponents of the will, on the other hand, argue that Ms. Montgomery’s attorney was present when the motion was argued before the court, and that the judge advised the attorneys at that time of his proposed action. The record does not reflect that the attorneys were told by the judge what action he would take on the motion, but the order of the court does show that the attorneys were present and argued the motion, and a “judgment entry” included in the record shows that copies of the ruling on the motion, styled “Decree of the Court,” was sent to the attorneys.

This Court has previously held that relief of judgment under Rule 60(b)(6) is proper only where the moving party shows exceptional circumstances which justify the relief. Young v. Reddock, 437 So.2d 1247 (Ala.1983). This Court has also held that the granting or denial of such motions is within the sound judicial discretion of the trial judge, and that the standard of review on appeal is whether the trial judge abused his discretion. Young, supra. As we stated in Young, “The trial judge was certainly in the best position to determine whether this case presented extraordinary circumstances.” The trial judge found none. Neither do we believe such circumstances existed here; therefore, we hold that the trial court’s denial of Ms. Montgomery’s motion was proper, and the judgment of that court is due to be affirmed.

AFFIRMED.

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

      . "Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

      . The "Decree of the Court” reads, in part, as follows:
      "This matter having been set for hearing on the motion of the plaintiffs to dismiss the contest filed with regard to the probate of the will of Wilmer Britnell, deceased, the attorneys for the parties appeared before the Court and argued said motion, and the Court, upon consideration of said motion, and the arguments made to the Court regarding same, the position of the plaintiffs being based on the fact that this Court lacks jurisdiction due to the fact that said contest was filed in the Probate Court of Franklin County, Alabama, rather than in this Court as required by statute, and that the time for filing any further contest has now run, the Court finds that the motion of the plaintiffs is due to be granted.” (Emphasis added.)
      The trial docket summary reads, in part, as follows:
      "3/21/83, Motion to Dismiss.
      "3/21/83, Motion.
      "3/24/83, Motion set for hearing.
      "5/12/83, Decree filed.

        “5/16/83, Copy of decree to attorneys." (Emphasis added.)


text:
    David McDonald v. Charles BRASSELL.
    83-748.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      James R. Cooper, Jr., Montgomery, for appellant.
    C. Winston Sheehan, Jr. and Richard E. Broughton of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   PER CURIAM.

Remanded to the trial court for reconsideration in light of this Court’s opinion in Lloyd v. Service Corporation of Alabama, Inc., 453 So.2d 735 (Ala.1984) (a case decided after the trial court ruled in the instant case).

REMANDED WITH INSTRUCTIONS.

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

MADDOX, J., concurs in the result.