text:
    Ruby R. Riddle GORDON v. Leon R. GORMAN, et al.
    81-859.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Grover S. McLeod, Birmingham, for appellant.
    Thomas L. Foster, Birmingham, for ap-pellee Metropolitan Life Ins. Co.
    David B. Anderson of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellee Nat. Bank of Commerce of Birmingham.
   EMBRY, Justice.

The plaintiff, Gordon, brought this action, on a creditor’s bill, against the debtor, Gor-man, and two mortgage holders, Metropolitan Life Insurance Company and National Bank of Commerce of Birmingham. After an ore tenus hearing, the trial court entered judgment against the plaintiff. We affirm.

We examine the judgment below and the evidence in light of the ore tenus rule, where every presumption is indulged in favor of the trial court’s judgment. Martin v. Slayton, 428 So.2d 23, 25 (Ala.1983); Shep herd Realty v. Winn-Dixie Montgomery, 418 So.2d 871, 874 (Ala.1982).

The judgment reads as follows:

“This action came on to be heard and considered by the Court and was submitted on the pleading and testimony and evidence presented in open court.

“The Plaintiff, Ruby R. Riddle Gordon, a judgment creditor of the Defendant, Leon R. Gorman, Jr., asserts claims here against the debtor, the debtor’s wife, Teddye S. Gorman, and the Defendants, Metropolitan Life Insurance Company and National Bank of Commerce, seeking to have a deed whereby Mrs. Gorman alone took title to a residence declared a conveyance to defraud a creditor and, further, to have the debtor declared the equitable owner of the residence. The Plaintiff also seeks to have the Court declare mortgages held by Metropolitan Life and National Bank of Commerce declared conveyances to defraud a creditor. Additionally, the Plaintiff seeks a sale for division to satisfy the Plaintiff’s judgment lien.

“It is alleged and contended that Metropolitan Life, the holder of the first mortgage on the property, and National Bank of Commerce, the holder of the second and third mortgages on the property, had notice that title was taken in the name of the wife for the purpose of defrauding the Plaintiff and other creditors.

“Default judgment has been entered by the Register of the Court against Metropolitan Life for its failure to appear after having been served with the summons and complaint in this action.

“It has also been shown that the debtor Gorman has been adjudicated a bankrupt during the pendency of this action and that the Bankruptcy Court has given the Plaintiff leave to proceed to pursue her claim against the property in the State court.

“Similar claims as to those set forth above have been made as to antiques owned by Mrs. Gorman and stock of a corporation. The Plaintiff has acknowledged in open court that these claims are mooted by events since the filing of the action.

“The debtor Gorman and Mrs. Gorman were present during the trial of this action but were not represented by counsel at such time and did not participate in the trial.

“It has been shown that the Plaintiff obtained a judgment in the Circuit Court of this Circuit against Leon R. Gorman, Jr. in the sum of $25,012.23 on February 29, 1980 which was duly recorded on April 1,1980 in the Probate Office of Jefferson County. According to the averments of the complaint, the note was executed in 1969. Mr. and Mrs. Gorman married in 1971. At that time, Mrs. Gorman owned a residence in the Roebuck section of Birmingham of an unspecified value. Thereafter, at an undisclosed time, Mrs. Gorman sold this residence and purchased another residence in Roebuck, apparently in her name alone.

“Thereafter, the Roebuck residence was sold and, on November 20, 1971, Mr. and Mrs. Gorman purchased and took title jointly to a residence in the Cherokee Bend Subdivision of Jefferson County for the consideration of $19,500 and the assumption of a $55,000 mortgage.

“In 1975, Mr. and Mrs. Gorman purchased and took title jointly to a vacant lot in the Cherokee Bend Subdivision for the purchase price of $35,000. This lot was later sold in July 1976 for a consideration of $40,000.

“On August 2, 1976, Mr. and Mrs. Gor-man sold and conveyed title to the Cherokee Bend residence for a consideration of $67,-355 and the assumption of the existing mortgage. On the same date, Mrs. Gorman (alone) purchased and took title to a residence in the Brookhill Forest Subdivision (called the Locksley Drive house) for the consideration of $100,000 and the granting of $125,000 in first and second mortgage loans. Thereafter, on June 20, 1978, Mrs. Gorman sold and conveyed the Locksley Drive residence for a consideration of $126,-555 and the assumption of an existing mortgage. Mr. Gorman, as husband, joined in on the deed.

“On the same date as the sale of the Locksley Drive residence, to-wit, June 20, 1978, Mrs. Gorman (again alone) purchased and took title to a residence in the Forest Glen Subdivision of Jefferson County for the consideration of $175,000, including a $140,000 purchase money mortgage to United Federal Savings & Loan Association. This mortgage was thereafter transferred to the Defendant, Metropolitan Life Insurance Company and is one of the mortgages involved in this controversy. The Forest Glen residence is the property made the basis of this action.

“The evidence shows that during the latter years of these events (1976-1978), Mr. Gorman provided the great majority of the earnings for the family. Mrs. Gorman operated an antique business during such years but realized little or no profit from it. On June 22, 1978, Mr. Gorman and his wife borrowed $65,000 from the National Bank of Commerce and executed a note and mortgage on the Forest Glen residence in the sum of $91,487.03, including interest, to secure the debt. Additional security for this loan included shares of stock in a corporation. Thereafter, on December 18, 1979, Mr. Gorman and his wife executed a subsequent note and mortgage to National Bank of Commerce in the sum of $26,896.14. On February 26, 1980, National Bank of Commerce filed for record a release and satisfaction of the $91,487.03 mortgage on the Forest Glen property. The evidence has shown, without dispute, that such debt had not been paid and that the release and satisfaction was executed and recorded in error. The error was discovered and the Bank thereafter filed for record on May 23, 1980 a document entitled Affidavit to Reinstate the Mortgage Erroneously Satisfied of Record.

“The Plaintiff’s judgment was recorded and became a lien on April 1, 1980 during the interval between the Bank’s recorded satisfaction and the recording of the Affidavit to Reinstate the Mortgage.

“The mortgages held by National Bank of Commerce were thereafter foreclosed by the Bank in the summer of 1981, the date of which was not shown. The Bank Was the purchaser of the Forest Glen property at the foreclosure sale, subject, presumably, to the first mortgage transferred to Metropolitan Life Insurance Company.

“As stated, the issues here involve title to the Forest Glen residence and the validity of the first mortgage on the property to Metropolitan Life and the second and third mortgages to the Bank.

“Conveyances to hinder, delay or defraud a creditor are void. Section 8-9-6, Code of Alabama 1975; Fleming v. Kirkland, 226 Ala. 222, 146 So. 384 (1933).

“The concurrence of three elements is essential before a conveyance can be declared fraudulent under the Code section cited. It must be shown that there is: (1) a creditor to be defrauded, (2) a debtor intending to defraud, and (3) a conveyance of the property out of which the creditor could have realized his claim or some portion thereof. Roddam v. Martin, 285 Ala. 619, 235 So.2d 654 (1970).

“From the facts here, there is no question but that the Plaintiff was an existing creditor of Gorman at the time of the purchase of the Forest Glen residence in the name of his wife and that there was a conveyance of the property out of which the Plaintiff could have satisfied her claim or some portion of it.

“The actionable fraud may be actual fraud or what is termed constructive fraud. Smith v. Wilder, 270 Ala. 637, 120 So.2d 871 (1960). Actual fraud denotes the actual mental operation of intending to defeat or delay the rights of the creditor. Constructive fraud, on the other hand, is based on facts and circumstances which the courts have said constitute legal fraud irrespective of actual intent. The term ‘constructive fraud’ is generally used in referring to those instances where a grantor, indebted at the time, conveys property on a good, as distinguished from a valuable, consideration. Such conveyances are frequently referred to simply as voluntary conveyances. Smith v. Wilder, supra.

“When a husband conveys certain property to his wife and that conveyance is attacked as a fraud on the husband’s existing creditors, the wife bears the burden of proof that the conveyance was based on a valuable consideration, substantial and not merely nominal. The wife has the responsibility of proving the bona fide character of the underlying transaction. Gurley v. Blue [Rents] Rinse, Inc., 383 So.2d 531 ([Ala.] 1980).

“Here, there is no question but that Mrs. Gorman owned a residence of her own in 1971. Thereafter, Mr. and Mrs. Gorman owned jointly the residence in the Cherokee Bend Subdivision. When they sold this residence, an equity of $67,355 was realized by them jointly. Only two months prior, Mr. and Mrs. Gorman had jointly received approximately $40,000 from the sale of a vacant lot. On the same date that the Cherokee Bend residence was sold in August 1976, Mrs. Gorman alone took title to the Locksley Drive residence with an equity of $100,000. This is the first suspect conveyance. Approximately two years later, the Locksley Drive residence was sold by Mrs. Gorman with an equity of $126,555 and the Forest Glen was purchased by Mrs. Gorman with only a $35,000 equity. This property is in controversy here and it is this property upon which Metropolitan Life holds the first mortgage and National Bank of Commerce holds title subject to redemption by virtue of its foreclosure in 1981.

“It is clear that when Mr. and Mrs. Gor-man sold the Cherokee Bend residence and the vacant lot and Mrs. Gorman acquired title alone in the Locksley Drive residence, Mr. Gorman conveyed property out of which the Gordon claim could have been realized. The result was a voluntary conveyance by Mr. Gorman to Mrs. Gorman based upon other than a valuable consideration. Mr. Gorman is due to be declared the owner of an undivided one-half interest in the Locksley Drive residence and, thereafter, the Forest Glen residence that is involved here.

“Metropolitan Life holds the first mortgage on the Forest Glen residence. The Plaintiff contends that this mortgage was a fraudulent conveyance and that such claim has been adjudicated by Metropolitan’s default. The Court agrees with this conclusion, but the Plaintiff’s lien must first be tested against the National Bank of Commerce mortgages which have been foreclosed.

“The mortgages to National Bank of Commerce were executed on June 22, 1978 and on December 18, 1979. These sums were paid by the Bank to the Gormans in consideration of their executing and delivering their notes and mortgages. The consideration paid by the Bank was both good and valuable, and there has been no evidence presented to show a fraudulent intent on the part of the Bank or its officials nor has evidence been shown of some fact or facts calculated to put the Bank on inquiry which, if investigated, would have led to Gorman’s fraudulent intent.

“A creditor cannot take advantage of a mortgage satisfied in error unless he relied on the satisfaction of the mortgage. Adler v. Interstate Trust & Banking Co., 166 Miss. 215, 146 So. 105, 87 A.L.R. 347. In the case here, there has been no evidence that the Plaintiff relied on the satisfaction of the mortgage at the time she recorded her judgment and a mortgage that has been satisfied of record by mistake may be expunged from the record and the mortgage reinstated where such relief will not prejudice the rights of third or innocent persons. Taylor v. Jones, 280 Ala. 329, 194 So.2d 80 (1967).

“Based upon these considerations, the Court concludes that the mortgages to National Bank of Commerce are not due to be set aside on the Plaintiff’s complaint.

“The posture of the parties and their contentions are thus:

“Gorman is declared here to be the owner of an undivided one-half interest in the Forest Glen house upon which the Plaintiff’s judgment lien attached on April 1, 1980. This judgment lien is subordinate to the National Bank of Commerce mortgages which became prior liens in 1978 and 1979 and which ripened into title in the Bank by its foreclosures in 1981. This foreclosure extinguished the Plaintiff’s judgment lien against the Forest Glen house.

“The Bank contends that Metropolitan’s default and resulting adjudication that its first mortgage has been declared void as to the Plaintiff results in the first mortgage being declared void as to the Bank as well.

“A fraudulent conveyance which is void as to one creditor is void as to all existing creditors on the date the conveyance was made. Continental Insurance Co. v. Dotson, 260 Ala. 499, 70 So.2d 796 (1954). The fraudulent conveyance applicable to this issue was the United Federal Savings & Loan Association mortgage (transferred to Metropolitan) executed on June 20, 1978. It was on June 22, 1978 the Bank made its first loan of $65,000 and became the holder of its second mortgage and, thereafter, in 1979, the holder of its third mortgage. The Bank was not an existing creditor on the date the Metropolitan mortgage was executed. Moreover, the evidence shows that the Bank had actual knowledge of the Metropolitan mortgage and knowingly made its loans notwithstanding such knowledge. For such reasons, the Court concludes that the mortgage held by Metropolitan Life Insurance Company is not void as to National Bank of Commerce who is now the owner of the property.

“Based upon the foregoing, it is ORDERED, ADJUDGED and DECREED by the Court that the complaint and claims, of the Plaintiff against the Defendants are denied. The costs of this action are taxed to the Plaintiff.”

After a careful review of the entire record, we are in agreement with the trial court’s findings and will not disturb them. Accordingly, the judgment below is due to be and is hereby affirmed, and the trial court’s opinion is adopted as our own.

AFFIRMED.

FAULKNER, ALMON and ADAMS, JJ., concur.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    COLONIAL BAKING COMPANY OF ALABAMA v. PINE DALE, INC., et al.
    81-879.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Dana E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellant.
    Elisha C. Poole of Poole & Poole, Green-ville, for appellees.
   ALMON, Justice.

This is an appeal from a suit for specific performance of an option to purchase land and/or damages for breach of the option contract. The trial court entered a judgment holding that the plaintiffs were not entitled to recover.

Colonial Baking Company of Alabama began occupying a building owned by L.H. Black, and his wife in Greenville, Alabama, in 1949. Colonial rented the building without a written lease until 1959, when the parties entered into a written lease effective June 22, 1959, which provided for a monthly rent of $40.00. Colonial and Black extended the term of this lease by a series of letters until they executed the lease involved in this action on January 10, 1969.

In 1968 Black undertook to build a new building on this property. Colonial contributed to the improvements by drilling a well, landscaping, paving, panelling, building an office inside the building, and constructing a loading dock. The invoices for Colonial’s contribution to the improvements totalled $6,363.22.

After these improvements, Colonial entered into a new lease with Mr. and Mrs. Black which increased the monthly rent to $100.00. This lease included the following option to purchase:

“The Lessors, in consideration for the Lessee leasing the subject premises, hereby grant unto the Lessee the option to purchase these premises for the total sum of eight thousand five hundred and no/100 ($8,500.00) dollars. This option shall be effective during the term of this lease and thereafter until exercised. Such option shall be exercisable upon the death of the last of the Lessors to die by the giving of written notice to the legal representatives of that estate within thirty days after their appointment and if no representatives are appointed, then to the heirs, as determined by the laws of descent and distribution of the State of Alabama, within six months from the date of death of the last to die, or within six months from the date of determination of the heirs or distributees by a court having jurisdiction over such determination.”

This lease also was extended by a series of letters, under the last of which it was due to expire at the end of 1984.

Black’s wife died in January 1977, leaving all her property, including her share in the subject property, to her husband. On March 7,1980, Black conveyed the property leased by Colonial to Pine Dale, Inc. In March or April, Yernice Shirley of Pine Dale called Buford Roberts, the president of Colonial, informing him that Pine Dale had purchased the property and that Colonial was to commence sending the monthly ren1> al cheeks to Pine Dale. Roberts told her that Colonial had an option to purchase. Pine Dale sent a letter dated March 31, 1980, to Colonial stating that Pine Dale had bought the property, enclosing a copy of the deed from Black to Pine Dale, and requesting that Colonial send future rent payments directly to Pine Dale.

On April 7, 1980, Colonial wrote Pine Dale acknowledging Pine Dale’s letter and asserting the option with a request that Pine Dale acknowledge the option. In response, Pine Dale’s attorney requested a copy of the lease and option, which Colonial provided on April 25, together with an explanation of the longstanding relationship between Colonial and Black and of the circumstances surrounding the option. Roberts testified that Black called him sometime after the sale to Pine Dale and asked that Colonial release him from the option, which Colonial refused to do.

Black died on July 9, 1980, and letters testamentary were issued on September 19, 1980, to First National Bank of Greenville as executor of his estate. On November 17, 1980, Pine Dale’s attorney wrote to inform Colonial of Black’s death. On December 10, 1980, Colonial wrote Pine Dale in an attempt to exercise the option to purchase the property from Pine Dale as successor and assignee of Black. Pine Dale’s attorney wrote Colonial the following day acknowledging receipt of the letter but refusing to recognize the option.

Colonial brought this suit against the Bank as executor and against Pine Dale. The complaint sought damages for breach of contract in the amount of $50,000.00, specific performance conveying title to Colonial, and/or compensatory damages for the defendants’ actions preventing it from exercising the option. The trial court denied defendants’ motion for summary judgment; the parties conducted discovery; and the trial court held a non-jury trial, after which it entered a judgment holding that Colonial did not exercise the option within the time provided and was not entitled to recover. Colonial appeals from that judgment.

Colonial raises the following issues:
“I. Did the trial court err in its finding that Colonial failed to exercise its option within a timely manner?
“II. Did the trial court err in failing to find liability against the estate of L.H. Black for breach of the option provision contained in the lease?
“III. Did the trial court err in failing to find the course of conduct of Black and Pine Dale presented an actionable theory which was compensable?”

We hold that the trial court did not err in holding that Colonial could not recover because it failed to exercise the option within the time provided and, for the reasons stated below, the trial court did not err in denying recovery on the other grounds.

Time is always of the essence in an option contract unless expressly stated otherwise. Murphy v. Schuster Spring Lumber Co., 215 Ala. 412, 111 So. 427 (1926); Coley v. English, 209 Ala. 688, 96 So. 909 (1923); Lauderdale Power Co. v. Perry, 202 Ala. 394, 80 So. 476 (1918); Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975 (1902). A specified time within which the option may be exercised is one of the essentials of an option contract. McGuire v. Andre, 259 Ala. 109, 65 So.2d 185 (1953); Neely v. Denton, 260 Ala. 26, 68 So.2d 537 (1953). But see Hoik v. Snider, 294 Ala. 318, 316 So.2d 675 (1975), wherein members of this Court disagreed whether the instrument in question was an option or a contract for purchase and sale, but agreed that time was not of the essence under the circumstances of the case.

We "find that the circumstances of this case do not provide an exception to the rule that time is ordinarily of the essence in option contracts. Option contracts are to be strictly construed. Murphy, supra; Lauderdale Power Co., supra. Moreover, even if we were to find an ambiguity as to whether time was of the essence, we would not be inclined to accept Colonial’s assertion that it was not. Colonial drafted the 1969 lease which first included the option, and instruments are construed against the party drafting the instrument. Morrow v. Wood, 411 So.2d 120 (Ala.1982).

The option was drafted in 1969 allowing Colonial to purchase the property for $8,500.00. Roberts, the president of Colonial, testified that in June 1980 when Black died, the property was worth $25,000 — $21,-000.00 for the building and $4,000.00 for the lot. Judson Gray, a qualified real estate appraiser, testified that the building was worth $20,000.00 and the lot was worth $18,000.00; these figures are consistent with the price Pine Dale paid Black for the parcel which includes the Colonial lot, a service station, and another store. Fluctuations in price such as this are one reason time is of the essence in option contracts. See the authorities cited above.

Colonial claims it did not have notice of Black’s death until it received the letter from Pine Dale dated November 17. This assertion was countered by evidence that the Bank published notice of his death for the sake of claims against the estate and by testimony of Colonial’s local manager that he knew of Black’s death within a few weeks. Colonial argues that Pine Dale acted in bad faith by not sending notice until after the thirty-day period for exercising the option had expired. Nothing in the option, however, imposes a duty on Black’s successors or assigns to notify Colonial of Black’s death. Colonial contends that a provision in the lease stating where notice to each party is to be sent imposes such a duty. Notice is appropriate for various other circumstances arising under a lease, and under the principle of strict construction of option contracts, we will not read such a duty into this option when it is not mentioned in the written agreement.

Thus, we find no ground for holding the trial court in error in its holding that Colonial cannot recover because of its failure to timely exercise its option. Because Colonial lost its rights for this reason, we see no need to address the issue of whether Pine Dale had constructive notice of the option so that it would be binding on Pine Dale. See Hill v. Taylor, 285 Ala. 612, 235 So.2d 647 (1970); First Alabama Bank of Huntsville v. Key, 394 So.2d 67 (Ala.Civ.App. 1981). The trial court did not err in holding that Colonial cannot recover damages for either breach of contract or the defendants’ preventing Colonial from exercising its option. The judgment of the trial court is therefore affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    CITY OF SCOTTSBORO, Alabama v. Bob JOHNSON and Rachel Johnson.
    81-908.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Robert S. Lamar, Jr. of Lamar, McDor-man & Moody, Birmingham, for appellant.
    Jerry R. Barksdale, Athens, for appellees.
   EMBRY, Justice.

This case concerns an automobile accident which occurred at the intersection of Kyle and Laurel Streets in the City of Scotts-boro, Alabama. Bob and Rachel Johnson contended that the City of Scottsboro allowed an unreasonably hazardous condition to exist, in that the stop sign on Kyle Street where it intersects with Laurel Street was hidden by the limbs and leaves of an elm tree. They based their suit on the theory that the accident, in which Mrs. Johnson was severely injured when the automobile in which she was riding collided with another automobile, would not have occurred absent the existence of this hazardous condition.

This case was tried to a jury and a jury verdict was returned in favor of the John-sons, assessing Rachel’s damages at $60,000 and Bob’s at $9,000, whereupon the trial court entered judgment on the verdict.

Scottsboro appealed to this court after its motion for judgment notwithstanding the verdict or for a new trial was denied. Three issues are presented for decision on appeal.

I.

The first issue concerns whether the trial court erred in permitting, over timely objection, plaintiffs’ counsel to argue damages in closing argument when the matter of recovery of damages was not mentioned in the opening portion of that argument.

The record presented to this court on appeal does not contain a transcript of the closing arguments. Scottsboro and the Johnsons have submitted conflicting affidavits as to the content of the argument submitted on behalf of the Johnsons. It is well established that this court, absent an accurate and complete record, will not question the propriety of a trial court’s ruling based on matter before that court. Valley Min. Corp. v. Metro Bank, 383 So.2d 158 (Ala.1980); Pinckard v. Dunnavant, 281 Ala. 533, 206 So.2d 340 (1968); Park v. Elliott, 282 Ala. 110, 209 So.2d 393 (1968).

II.

Second, Scottsboro contends the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict. It contends the case should not have been submitted to a jury because there was insufficient evidence to establish the city had actual or constructive notice that leaves and branches obstructed or obscured visibility at the intersection where Mrs. Johnson was injured.

The law of Alabama is clear that a municipality has a duty to remedy defects upon the receipt of actual or constructive notice, City of Prichard v. Kelley, 386 So.2d 403 (Ala.1980), and that proof of notice is a prerequisite to liability. Id., at 407.

We think, however, that in the instant case there was more than sufficient evidence from which the jury could have concluded that the City of Scottsboro had notice of the obscured stop sign. It is undisputed that the tree in question here was between twenty and thirty feet high, and had a trunk seven and one-half inches in diameter. The Johnsons submitted, as an exhibit, a photograph taken two days after the accident, showing how the stop sign was hidden by the elm tree. Mr. Ralph Hodges, a foreman with the Scottsboro Street Department, testified as follows: (1) that he went through the intersection of Kyle and Laurel Streets, where the accident occurred, approximately fifteen times per week, sometimes as often as ten times per day; (2) he installed the stop sign in question in 1979; and (3) the traffic department had an informal system for the detection of hidden stop signs and he was responsible, as were others, for noting hazards and taking appropriate action.

In City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276 (1936), overruled on other grounds, 268 Ala. 138, 105 So.2d 121 (1958), this court stated that the duty of the municipality is “affected by the circumstances, such as the frequency of the use of the intersection, and the manner of its use, and its appearance.” It went on to conclude that Tuscaloosa had notice of a defect on city property:

“[Sjince the defect was present, and the city’s servants mowed the grass over or about it, the jury could infer that they did in fact see it, or were negligent in not doing so.... ”

232 Ala. at 134, 167 So. 276.

It is clear the evidence presented in the instant case justified submission to a jury of the issue of notice and the jury could have reasonably inferred that the city did see, or should have seen, that the stop sign at the southern intersection of Kyle and Laurel Streets was obscured by an elm tree.

III.

Third, Scottsboro contests the trial court’s decision to allow certain testimony by a traffic engineer, Richard P. Kramer, which, it alleges, was radically different in character than disclosed in answers to interrogatories. Scottsboro claims “surprise.”

In answer to interrogatories from Scotts-boro, the Johnsons stated the anticipated subject matter of Kramer’s testimony as follows:

“The design lay-out and placement of traffic control devices at the intersection made the basis of this suit. That the Alabama Uniform Manual on Traffic Control Devices requires that they be inspected and cleared of obstruction on a regular basis and that due to the sequence of visual cues along Kyle Street, the motoring public is lead [sic] to believe that it is a thru street.”

Scottsboro argues Kramer should not have been allowed by the trial court to testify concerning:

(1) The distance south of the stop sign for which a motorist’s vision was obscured by the elm tree;

(2) The number of feet it would have taken for the driver of the car in which plaintiff was a passenger to stop after seeing the sign if going 30 or 40 miles per hour; and

(3) His opinion that the intersection was “unreasonably hazardous.”

Scottsboro does not allege Kramer was unqualified to give such testimony; only that the trial court abused its discretion in permitting Kramer’s “surprise” testimony.

While there were objections to the admission of the above testimony, Scottsboro did not, at any time during the testimony of Kramer, move for a continuance or postponement in order to seek additional discovery or obtain a rebuttal witness. It is clear that, to preserve this type of objection on appeal, a request for continuance or postponement should have been made of the trial court. Calvert & Marsh Coal Co. v. Pass, 393 So.2d 955 (Ala.1981). There was no abuse of discretion by the trial court with regard to its ruling upon this testimony.

For the stated reasons, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    W. Thomas CROSSLIN, Probate Judge of Colbert County, Alabama v. The CITY OF MUSCLE SHOALS.
    82-1.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    Murray W. Beasley, and Stanley Munsey of Rosser & Munsey, Tuscumbia, and Walter R. Byars, Montgomery, for appellant.
    John D. Clement, Jr., Muscle Shoals, for appellee.
   EMBRY, Justice.

I.

On 20 April 1982, the Alabama Legislature enacted Act 82-344, Acts of Alabama (H. 165); it was approved by the Governor to become effective at midnight 30 September 1982. Act 82-344 (now § 28-3-190, Code 1975) was enacted to “regulate the taxation of beer by levying an exclusive statewide local privilege or excise tax” on the sale of beer and provide for the collection and distribution of the proceeds of the tax.

The City of Muscle Shoals objected to Act 82-344, alleging its enforcement would result in a loss of revenue to the City in excess of $380,000 annually. Testimony supporting that allegation was adduced before the Circuit Court of Colbert County subsequent to Muscle Shoals’s requests for declaratory and injunctive relief. At that hearing, Muscle Shoals alleged the act was unconstitutional because:

(1) “The assessment or collection of taxes” may not be passed by a local law (Ala.Const. Art. IV, § 104(15));
(2) A local law may not be “enacted in any case which is provided for by a general law” (Ala. Const. Art. IV, § 105); and,
(3) A local law can be passed only upon notice and proof, which was not given with respect to Act 82-344 (Ala. Const. Art IV, § 106).

On 30 September 1982 the trial court entered the following:

(1) Act No. 82-344 is a local act and not a general act and violates the provisions of Articles IV, Sections 104,105,106 and 110 as amended, Constitution of Alabama 1901, and is therefore unconstitutional.
(2) The enforcement of the Act is hereby enjoined pending appeal.

On 1 October 1982, Probate Judge Cross-lin perfected his appeal to this court by filing notice of appeal and security for costs in the circuit court. Further, on 1 October 1982 the probate judge filed his motion in the trial court for an order suspending the injunction pending appeal. That motion was denied by order dated 1 October 1982,

On 4 October 1982, the probate judge filed in the Supreme Court his application for supersedeas, stay, or order suspending the injunction pending appeal. This court granted supersedeas on 5 October 1982, and the probate judge posted supersedeas bond.

II.

The decisive issue before this .court is whether Act 82-344 is a general law and constitutional, or a local law and unconstitutional.

There are a number of well established principles of law relevant to this issue:

(1) It is the duty of courts to sustain the constitutionality of a legislative act unless it is clear beyond a reasonable doubt that it is in violation of the fundamental law. Brittain v. Weatherly, 281 Ala. 683, 685, 207 So.2d 667, 668, 669 (1968).
(2) A court is duty bound not to construe the act as a local one when it is so framed as to be reasonably susceptible of interpretation as a general law. State ex rel. Montgomery v. Merrill, 218 Ala. 149, 152-155, 117 So. 473, 476 (1928).
(3) A statute that has a “bona fide application to the entire state in some of its chief features” is a general law, though it does not apply in every detail throughout the entire state. State ex rel. Coliman v. Pitts, 160 Ala. 133, 134, 49 So. 441, 442 (1909).
(4) Whether a statute is general and valid, or local,.and invalid, must be determined from the statute as a whole. The legislative mind is to be read from an act as a whole. Dillon v. Hamilton, 230 Ala. 310, 160 So. 708 (1935).

We remain cognizant of these principles on* review of the issues presented. *■

III.

Muscle Shoals argues Act No. 82-344 is a local law because the distribution of taxes as provided for in 31 county formulae does not apply to the state as a whole, but only to the counties enumerated in Section l(c)(2)(i) through (xxxi). It relies on this court’s decision in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), contending the Peddycoart principle leads to the conclusion that Act 82-344 is local, and therefore unconstitutional. Peddycoart and its progency — Ex parte Dement and Thomas, 424 So.2d 659 (Ala.1982) — are distinguishable from the present factual situation. Both cases relate to an arbitrary classification, with no reasonable relationship between the classification used and the purpose of the statute. In Peddycoart the classification was according to population; in Dement it was based on the number of circuit judges within a county. Each was held violative of the equal protection clause of the U.S. Constitution. Both cases further held that, because of the unreasonable classification, the act in question could not qualify as a general law of local application.

We find there is no classification in Act 82-344. It is obvious from a reading of the act in its entirety that a uniform tax was levied by the legislature to be collected from every purchaser of beer in all “wet counties" in the state. This tax is exclusive throughout the state. It is in lieu of every other local tax or license fee, measured by the sale, or volume of sale, of beer except a general sales tax. This tax is state-wide because it applies everywhere within the state where beer is legally sold. The only disparate treatment we find is in the Act’s provisions for the disposition of the tax proceeds within the counties where they are collected. These provisions simply earmark the funds to provide for specific needs within each county. Thus, there can be no unreasonable or arbitrary classification. We further find no lack of equal protection of the people located within a single county where the tax is levied. The Peddycoart principle is not here applicable.

\The rule Muscle Shoals seems to urge regarding the “general-local” law dichotomy set forth in Ala. Const. Art. IV, § 110 (1901, amended 1978, 1982) is that where a law embodies any differences in application between counties, it is local, even though of statewide application. For this court to so hold would greatly restrict our legislature. This court, when confronted with construction of this constitutional provision in 1904, noted:

“While, as we have intimated, there are decisions in some of the States which indicate so strict a construction of similar constitutional provisions as to result in such a state of affairs, as above alluded to, yet, in taking up this new provision of our Constitution, we prefer to follow authorities which we hold to be based on sounder reasons, and to give to this constitutional provision such a construction as will effectuate the intention of its framers, and, at the same time give it a practical interpretation, which will make it useful, and not harmful, to the interests of the State.
“The Supreme Court of New Jersey, in discussing a case, in which the question of local or general law was at issue (and in which it considered that it should ‘emancipate itself’ from the bondage of verbal definitions), used this language: ‘When we find that the adoption of the narrow signification of the term used will lead to positive absurdity, and that the reception of the word in its wider import is attended with the establishment of a rule of public policy, both wise and salutary, it is not difficult to make choice between the alternatives.’ Van Riper v. Parsons, 40 N.J.L. [1 at], p. 5.”

State ex rel. Covington v. Thompson, 142 Ala. 98, 108, 38 So. 679 (1904). Agreeing with the above rationale, we think a less severe, and more reasonable, method of distinguishing between general and local laws than Muscle Shoals urges is practical and, as the Supreme Court of New Jersey stated, as quoted above, less “absurd.”

IV.

Therefore, we agree with Judge Crosslin’s contention that Act No. 82-344 is a general law and the fact that the law permits or directs differences in matters of administratibn suited to the particular needs of the localities affected does not make it any less a general law.

Because this act is a general rather than local law, it does not violate Ala. Const. Art. IV, §§ 104(15), 105, or 106. Consequently, the judgment of the court below is reversed with directions that judgment be entered declaring Act No. 82-344 constitutional and the action dismissed.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: PER CURIAM. BEATTY, Justice

text:
    David CONN, Faye Conn, Albert McDonald and Tommy Carter v. Governor Fob JAMES, etc., et al. D.L. PUTMAN and Clark Moore v. Fob JAMES, etc., et al.
    82-25, 82-147.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    Dan C. Totten of Malone, Owens, Hancock & Totten, Athens, for appellants (82-25).
    Louis Salmon and Charles E. Richardson, III, of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants Putman and Moore (82-147).
    Charles A. Graddick, Atty. Gen., and Terry R. Smyly, Asst. Atty. Gen., for appellees.
    Jacquelyn Lufkin Stuart, Montgomery, for appellee Commissioner, Alabama Department of Corrections.
   PER CURIAM.

These consolidated cases originated from separate complaints for a declaratory judgment, and motions for temporary restraining order, preliminary injunction and permanent injunction, seeking to have declared null and void actions by the Honorable Fob James, as Governor of the State of Alabama, and other state officials, in acquiring property for construction of a prison facility in Limestone County.

The trial court, sitting ore tenus, found for the Defendants/Appellees on all issues. We affirm.

FACTS

Appellants David Conn and Faye Conn are residents and landowners in Limestone County. Appellants Tommy Carter and Albert McDonald are current and former members of the Alabama legislature, respectively, representing Limestone County. Appellants D.L. Putman and Clark Moore are citizens, landowners, and taxpayers in Madison County. In 1939, the legislature created the Department of Corrections and Institutions and provided that its director, along with his other duties, “shall be the advisor of the Governor and the Legislature in matters relating to penal and correctional institutions, pardons and paroles and related matters.” Acts of Alabama No. 91, p. 118, 121 (1939); Code 1975, § 14-1-9. In 1953, the legislature created the Board of Corrections. In 1978, Code 1975, § 14-1-9, was amended to read:

“The board shall be the advisor of the governor and the legislature in matters relating to penal and correctional institutions, pardons and paroles and related matters. The board shall advise the governor and the legislature at least 30 days prior to making a decision on construction of permanent facilities or any new or existing prison site.”

On February 2, 1979, Governor Fob James was appointed as temporary receiver of the prison system of Alabama. The legislature abolished the Board of Corrections, effective October 1, 1979, and vested all of its rights, duties, and powers in the Governor, who was authorized to exercise all functions and duties himself or by and through such administrative divisions or officers and employees as he might designate.

On May 21, 1981, the legislature created the Capital Outlay Oversight Commission for the purpose of approving and supervising any capital outlay or capital improvement for the prison system made pursuant to the provisions of the Act creating the Commission. Additionally, the Act appropriated some $45 million dollars, or so much thereof as might be available from the general fund of the State treasury, for use in capital outlays and improvements in the prison system.

On November 3, 1981, Governor James, through his “State of the State” message, advised a joint special session of the legislature of his decision to use certain bond monies for the construction of a prison facility in the Tennessee Valley area. At the request of the Governor, Mr. Joe Bunyan Broadwater, Assistant Director of Finance, located a potential site for a prison in Limestone County. During the last week of June 1982, Mr. Broadwater notified the Governor of an offer received with regard to the purchase of realty known as the “Herman Vann property.”

On August 5, 1982, the Capital Outlay Oversight Commission met and issued a resolution authorizing the disbursement of funds for the purchase of a prison site in west Limestone County, and construction of a correction facility thereon. Subsequently, the “Herman Vann property” was purchased, bids were taken for construction of the new prison, and a contract was let. Construction began on the facility shortly before Governor James left office in early 1983.

Appellants’ argument may best be stated by quoting directly from their brief:

“Alabama Code (1975) Section 14-1-9 requires that before the Board (now replaced by the Governor) can choose a new prison site, the Legislature must be advised at least thirty days prior to the choice. Under the evidence in this case as set out in the statement of facts, the only possible advice that the Governor could have given the Legislature concerning the choice of a prison site in West Limestone County, Alabama, was a speech the Governor made on November 3, 1981, in which he stated that he hoped to build a prison in the Tennessee Valley area from the proceeds of certain bond sales. Plaintiffs contend that that advice is simply insufficient as a matter of law to place the Governor in compliance with Section 14-1-9, and therefore, the attempt of the Governor to choose a site for a prison in West Limestone County, Alabama, without first notifying the Legislature is void.”

DECISION

Code 1975, § 14-1-16, reads as follows:

“Effective October 1,1979, the board of corrections of the state of Alabama is hereby abolished and all rights, all duties, responsibilities, powers, assets, liabilities, contractual rights and obligations and property rights, whether accruing or vested in the abolished agency, are hereby vested in the governor of the state of Alabama.”

When read in conjunction with § 14-1-9, § 14^1-16 evidences a clear intent by the legislature to repose in the Governor the responsibility, previously held by the Board of Corrections, of “advising” the legislature at least 30 days prior to making a decision concerning construction of permanent prison facilities.

On November 3,1981, Governor James, at the convening of the third special session, addressed a joint session of the House and Senate, and indicated his plans to build a 1000-man prison in the Tennessee Valley. The Governor also requested that the legislature appropriate, from funds received by the State for leasing drilling rights on state owned land, an additional $20 million over and above the $45 million already appropriated for construction of new prisons. In response to this request, the legislature appropriated the additional $20 million, providing a total of $65 million for capital outlays and capital improvements. The legislature further provided the funds should be disbursed upon order of the Capital Outlay Oversight Commission.

Contrary to the persuasive argument of Appellants, we are constrained to hold that the Governor’s address to the joint session on November 3,1981, did meet his responsibility of “advising” the legislature 30 days prior to “making a decision” on construction of a permanent prison facility.

Black’s Law Dictionary (rev. 5th ed. 1979) offers the following definition for the word “advise”:

“Advise. To give an opinion or counsel, or recommend a plan or course of action; also to give notice. To encourage, inform, or acquaint. It is different in meaning from ‘instruction’ or ‘persuade.’ Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 497. Where a statute authorizes the trial court to advise the jury to acquit, the court has no power to instruct the jury to acquit. The court can only counsel, and the jury are not bound by the advice. ‘Advise’ imports that it is discretionary or optional with the person addressed whether he will act on such advice or not.”

When so defined, and when reviewed in light of the legislative prerogative of appropriations relative to the construction, maintenance, and operation of prison facilities, the advice mandate of § 14-1-9 (supplemented by § 14-1-16) was fully complied with when the Governor “gave notice” to the legislature in a formal joint session of his impending decision to construct the very prison facility here in question. Moreover, the legislature, acting upon such advice, forthwith appropriated the necessary funds for its construction.

AFFIRMED.

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

BEATTY, J., concurs specially.

BEATTY, Justice

(concurring specially):

The powers of state government are divided into three departments: legislative, executive, and judicial. Neither may exercise any power possessed by the others without constitutional sanction. Art. Ill, Constitution of 1901. The legislative act in question, insofar as it requires the governor to advise the legislature of his executive decision to choose a prison site, is unconstitutional because it clearly places his executive function under the Constitution in a position subservient to the legislative will.

      .Tommy Carter is currently a member of the Alabama House of Representatives. Albert McDonald is a former State Senator.

      . Code 1975, §§ 14-1-15, -16, -17.

      . Act No. 81-764; Code 1975, § 14-1-18.


author: ADAMS, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation v. ANDALUSIA READY MIX, INC., a Corporation, et al.
    82-187.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
    W. Harold Albritton, III of Albrittons & Givhan, Andalusia, for appellees.
   ADAMS, Justice.

This is an appeal by the plaintiff, United States Fidelity and Guaranty Company (USF & G), from a declaratory judgment involving the construction of a liability insurance policy containing products hazard coverage. The cause was submitted on the pleadings in the case and the policy of insurance issued by USF & G to defendant Andalusia Ready Mix, Inc. (Andalusia Ready Mix). The trial court entered a final judgment declaring that USF & G has an obligation to defend and to pay any judgment rendered in a lawsuit brought by Will M. Gregory, Inc. (Gregory) against Andalusia Ready Mix. The appellant obtained a stay of that action, which has been extended pending the outcome of this appeal.

The issues raised on this appeal are as follows:

1. Does the complaint in the underlying action contain allegations of damage that USF & G is contractually obligated to defend for Andalusia Ready Mix?
2. Does the complaint in the underlying action contain allegations of damage that USF & G would be contractually obligated to pay for Andalusia Ready Mix, if proven at trial?

We answer these questions in the affirmative. USF & G is obligated to defend Andalusia Ready Mix in the suit brought by Gregory, and must pay any judgment in that suit except for damages attributable to the removal and replacement of the grout itself.

The relevant facts in this case are as follows:

Appellant USF & G issued a policy of insurance to defendant Andalusia Ready Mix. The policy was comprehensive general liability insurance including products hazard coverage. The contract provides:

The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage....
The policy provides that when used therein: “occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured. ...
“products hazard” includes bodily injury and property damage arising out of the Named Insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the Named Insured and after physical possession of such products has been relinquished to others;
“property damage” means:
(1) physical injury or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or
(2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

The policy period in this case was April 1, 1979, through April 1, 1980.

During the term of the policy, Andalusia Ready Mix sold Gregory a material known as “grout” for use in constructing a water sewage treatment plant near Florala, Alabama. In the lawsuit filed by Gregory against Andalusia Ready Mix during the term of the USF & G policy, the following was alleged:

Count Three

... Plaintiff avers that the grout which Defendant furnished to Plaintiff was defective .... Plaintiff further avers that due to the defective quality of said grout, it was necessary to do extensive repairing and remodeling of said Waste Water Treatment Plant .. . which included the purchase of additional grout and materials and the payment by Plaintiff to mechanics and laborers who performed the corrective work and installed the new materials. Plaintiff avers that it was delayed in completing the Waste Water Treatment Plant and as a result thereof, Plaintiff sustained damages and additional costs for labor and materials, overhead and interest. Plaintiff claims damages as aforesaid.... [emphasis added].

USF & G refused to defend the suit brought by Gregory, or to pay any damages that may be awarded therein against Andalusia Ready Mix. As a result, appellant brought this suit for declaratory relief. The trial court rendered a judgment in favor of Andalusia Ready Mix based solely on the pleadings in this action and the underlying action, and the policy of insurance. USF & G appeals.

In a recent decision concerning USF & G’s obligations under a policy of insurance similar to the one in the instant case, this court held that “if [an] occurrence or accident causes damage to some other property than the insured’s product, the insured’s liability for such damage becomes the liability of the insurer under the policy.” United States Fidelity & Guar. Co. v. Bonitz Insulation Co. of Ala., 424 So.2d 569, 573 (Ala.1982). This being the rule, our inquiry initially must be whether there was an “occurrence” in the case sub judice,

In Cotton States Mutual Insurance Co. v. Norrell Heating & Air Conditioning Co., Inc., 370 So.2d 270 (Ala.1979), this court considered a policy identical to the one issued to Andalusia Ready Mix by USF & G. The court held, contrary to the argument of the insurer, that “[t]he definition of ‘occurrence,’ read in conjunction with the definition of products hazard coverage, clearly shows that ‘reliance upon a representation or warranty’ is an ‘occurrence’ covered by the policy.” 370 So.2d at 275. This holding is in agreement with the opinion of the Supreme Court of Washington in Yakima Cement Products Co. v. Great American Insurance Co., 93 Wash.2d 210, 608 P.2d 254 (1980). In that case the court interpreted the term “accident,” used there as in this case in defining “occurrence,” “in the context of the product being manufactured by the insured and the kind of losses sustained in the event of a defect in manufacture.” 93 Wash.2d at 217, 608 P.2d at 258. The court in Yakima Cement concluded that the products’ failure to perform the function for which they were manufactured and sold, “necessitating their removal, refabri-cation and repair constitute])!] an ‘accident’ and thus an ‘occurrence’ within the terms of the policy.” Id.

USF & G has conceded that the complaint in the underlying action alleges that the product in question failed to perform as warranted. Moreover, Gregory’s reliance upon the product as warranted clearly was alleged, and has not been questioned by appellant. Hence, we conclude that there was an “occurrence” within the terms of the policy. Cotton States Mutual Insurance Co. v. Norrell Heating & Air Conditioning Co., Inc., 370 So.2d at 275.

We now turn to a consideration of whether the complaint in the underlying action contained an allegation of “property damage” sufficient to require USF & G’s defense and payment of damages in that action. As indicated above, “property damage” covered under a policy of insurance such as the one issued to Andalusia Ready Mix by USF & G is damage to property other than the insured’s product. United States Fidelity & Guar. Co. v. Bonitz Insulation Co. of Ala., 424 So.2d at 573. In its complaint against Andalusia Ready Mix, Gregory alleges that the defective grout caused the waste water treatment plant to be defective. Though the complaint contains no elaboration of the resultant defects of the plant, it does include further allegations that the defective condition of the plant, as opposed to the grout, necessitated “extensive repairing and remodeling of [the] Water Treatment Plant ... which included the purchase of additional grout and materials ...” (emphasis added). Based on this language, we hold that the trial court reasonably could have concluded that injury might have been done to property other than the insured’s product, for which USF & G is required to provide a defense and to pay damages,

At this point, we must consider USF & G’s contention that all damages which Andalusia Ready Mix might become obligated to pay in the underlying suit are not covered because of various exclusions in the policy. The exclusions relied upon by appellant are as follows-

Exclusions
This insurance does not apply:
(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from
(1) a delay in or lack of performance by or on behalf of the Named Insured of any contract or agreement, or
(2) the failure of the Named Insured’s products or work performed by or on behalf of the Named Insured to meet the level of performance, quality, fitness or durability warranted or represented by the Named Insured; but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the Named Insured’s products or work performed by or on behalf of the Named Insured after such products or work have been put to use by any person or organization other than an Insured;'
(n) to property damage to the Named Insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;
(p) to damages claimed for the withdrawal; inspection, repair, replacement, or loss of use of the Named Insured’s products or work completed by or for the Named Insured or of any property of which such products or work form a .part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.

Exclusion (m) explicitly pertains to “loss of use of tangible property.” This exclusion is inapplicable in the instant case because the complaint in the underlying action does not include a claim for loss of use.

In United States Fidelity & Guar. Co. v. Bonitz Insulation Co. of Ala., supra, this court held that several of the exclusions, specifically (n) and (o), effectively preclude liability under the policy for damage to the named insured’s product. 424 So.2d at 573. Hence, we conclude that USF & G is not liable for the cost of the defective grout.

The effect of exclusion (p) on coverage was addressed by this court in Commercial Union Assurance Co. v. Glass Lined Pipe Co., 372 So.2d 1305 (Ala.1979). In that case, the party suing the insured indicated that

... there was no damage caused to any other parts of the project because the pipe [into which the insured’s product was fitted] did not function properly. No walls were taken down and no damage was done to the pipe itself.

372 So.2d at 1308. The court concluded that “the effect of Exclusion (p) is to exclude claims for damages caused by the purchaser’s withdrawal of the insured’s products from use due to a deficiency in them.” Id. at 1309. Consequently, the court held that exclusion (p) excluded the insurer’s obligation to defend the insured and to pay a judgment rendered against it for its defective products’ failure to perform as warranted. Id. The court noted, however, that its interpretation of exclusion (p) “does not affect other possible instances of products liability, such as those in which damage occurs to a person, or to property other than the product of the insured itself.” Id. (emphasis added). Therefore, exclusion (p) should not be read to preclude USF & G’s defense of Andalusia Ready Mix and its payment of damages for injury to parts of the plant other than the grout, which failed to function as required.

Our decision in Commercial Union Assurance Co. v. Glass Lined Pipe Co., supra, is in accord with the Supreme Court of Oregon’s opinion in Wyoming Sawmills, Inc. v. Transportation Insurance Co., 282 Or. 401, 578 P.2d 1253 (1978), regarding an insurer’s obligation under a policy of insurance like the one issued to Andalusia Ready Mix by USF & G. In Wyoming Sawmills, the court only addressed the appropriateness of labor costs; however, the court’s analysis is likewise applicable to other consequential damages and materials costs incurred in a similar circumstance. The court held:

... such portion, if any, of the labor expense for which claim is made as might be attributable to tearing out and putting back other parts of the building (as compared with the labor attributable to the actual removal and replacement of the studs [i.e. the insured’s product] after they have been uncovered) in order to replace the studs is within the coverage of the policy [emphasis added].

282 Or. at 408, 578 P.2d at 1257. Such holding is implicitly consonant with our conclusion that Gregory’s allegations of “extensive repairing and remodeling” of the water treatment plant provided a sufficient basis for the trial court to require USF & G to defend Andalusia Ready Mix and to pay any judgment, except for damages attributable to the actual removal and replacement of the grout itself, for those allegations must be read in connection with the additional allegations of the use of new grout and other materials as replacement for or supplementation of previously damaged materials or materials damaged in the process of alleviating the problem caused by the defective grout.

For all the above reasons, we affirm the trial court’s judgment, except as to the order for USF & G to pay damages for the removal and replacement of the defective grout itself, which we reverse; and we remand for proceedings not inconsistent with this decision.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: PER CURIAM.

text:
    Ex parte John M. REYNOLDS, Jr. (Re John M. REYNOLDS, Jr. v. Frances Weber BIRNBAUM, et al.)
    82-275.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    Gregory J. McKay, Birmingham, for petitioner.
    Jack B. McNamee of Topazi, Morton & McNamee, Birmingham, for respondents.
   PER CURIAM.

John Reynolds, Jr., petitions this court to issue the writ of mandamus to Honorable William C. Barber to compel him to set aside an order denying a trial of related equitable and legal claims in a single action, and trial to a jury of a legal claim.

The subject of this lawsuit is a house located in Homewood, Alabama, which was purchased by Reynolds from the defendants, Frances and Herbert Birnbaum and Alice and Robert Bolick. That property was sold at a foreclosure sale subsequent to Reynolds’s default in payment to defendants.

Reynolds filed suit contending defendants did not provide notice of the sale to him as is required by § 6-8-66, Code 1975. He requested that the mortgage foreclosure be declared invalid or void, or, in the alternative, that he be allowed to redeem the property.

At a hearing on motions for summary judgment in that action, the defendants submitted an affidavit stating facts from which Reynolds concluded that fraud had been perpetrated upon him by defendants during the process of foreclosure. Two days after receipt of that affidavit, Reynolds amended his complaint, which had theretofore requested only equitable relief, to allege fraud and deceit. He also filed a demand for trial by jury of those legal claims.

Defendants submitted a motion to strike the amended complaint and the jury demand. The trial court granted this motion in part. Its order provides as follows:

“TWO: The ‘Motion To Strike Amended Complaint And Jury Demand’ as filed on October 19, 1982 is granted to the extent that everything pertaining to fraud or deceit is stricken from the amended Complaint filed October 4,1982, without prejudice to Plaintiff to bring an action on the law side of this Court.
“THREE: The jury demand filed by Plaintiff on October 4,1982 is denied and this cause shall proceed to trial on December 2, 1982 at 9:00 a.m. upon the Complaint, as amended, subject to the stricture set forth above.”

Rule 15(a), ARCP, provides that “a party may amend his pleading without leave of court but subject to disallowance on the court’s own motion or motion to strike of an adverse party.” The purpose of this rule is to allow maximum opportunity for the parties to state each claim and have those claims decided on the merits of the issues to be tried. B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979). The grant or denial of leave to amend is a matter within the sound discretion of the trial judge and is subject to reversal on appeal only for an abuse of that discretion. Walker v. Traughber, 351 So.2d 917 (Ala.Civ. App.1977). The trial court acts within its discretion so long as its disallowance of an amendment of pleadings is based upon some valid ground, such as actual prejudice or undue delay. Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).

We have carefully reviewed the record presented with this petition. It reveals Reynolds’s fraud count was filed more than a month before the date set for hearing of the case. It was based on a combination of facts previously alleged by Reynolds in support of his original complaint and facts set forth by the defendants in the affidavit in support of their motion for summary judgment. It named no new parties. Where an amendment merely changes the legal theory of a case or adds on additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party. Bracy v. Sippial Electric Company, 379 So.2d 582 (Ala.1980). We fail to see how defendants could have been significantly prejudiced by this amendment in maintaining their defenses.

Interestingly, neither the trial court’s order striking the amendment nor its answer to the petition for mandamus' defends that action on the basis of prejudice to the defendants or any other basis traditionally cited in support of disallowance of amendments. In its order, the trial court specifically noted the fraud action could be brought on the “law side” of the circuit court. We can only conclude from that statement and from the failure in that document to state any other reasons for striking the amendment, that it was considered that the fraud claim was inappropriately brought on the “equity side” of the circuit court. Rule 2, ARCP, provided for the merger of law and equity. It states: “There shall be one form of action to be known as ‘civil action.’ ” That procedural rule was effected in 1973, giving any circuit court the power to hear both equitable and legal issues. That merger was accom-. plished so that litigants could present related legal and equitable claims in an orderly manner. It operates in cases such as the one before us to avoid the presentation of claims in separate actions. We find an abuse of discretion in the disallowance of Reynolds’s amendment based on its legal nature, if indeed that was the rationale behind its disallowance.

Therefore, it was error upon the part of the trial court to strike Reynolds’s amendment. We conditionally grant the writ of mandamus subject to the trial court’s withdrawal of its order of 10 November 1982 striking from plaintiff’s amended complaint “everything pertaining to fraud or deceit” and denying his jury demand, and also subject to that court’s separate determination whether the plaintiff’s amended complaint is the “last pleading” within the contemplation óf Rule 38, ARCP, in order that a determination can be made whether that jury demand was timely filed.

The writ of mandamus is granted conditionally.

WRIT GRANTED CONDITIONALLY.

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


text:
    D.W. RONEY, Joel Foster and Owell Foster v. G. Scott RAY, et al.
    81-918.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    Charles M. Thompson, Birmingham, for appellants.
    Ralph D. Gaines, Jr. and William W. Goodrich of Gaines, Cleckler & Goodrich, Talladega, for appellees.
   EMBRY, Justice.

This is an appeal from a summary judgment entered against D.W. Roney, Joel Foster, and Owell Foster, in favor of G. Scott Ray and the Citizen’s Bank of Talladega. The judgment concerns a tort action alleging fraudulent misrepresentations by Ray in the sale of a log home business to Roney. We affirm.

It is necessary to review only the facts pertinent to the dispositive issue: The propriety of entry of summary judgment. In his capacity as President of the Citizen’s Bank of Talladega, Ray was authorized to sell Southern Log Homes, a log house business. One evening, in April of 1978, Ray called Roney at his home and advised him that he could purchase Southern Log Homes. The terms for the purchase would be $1,000 earnest money to be paid immediately; the remaining balance of $11,000 to be paid within a few days. Roney, being well acquainted with Southern Log Homes, readily accepted Ray’s offer. On 26 February 1979, Roney sold one-third interest in the log home business to Joel and Owell Foster.

Shortly after the Fosters purchased their interest in the business, they asked Roney what assurances, if any, he had received from Georgia Pacific Company concerning the purchase of logs for the business. Unaware of any assurances, Roney requested that Ray call Georgia Pacific. Ray did so.

On 9 March 1979, Ray forwarded Roney a letter advising him of a conversation between Ray and Georgia Pacific Plant Manager, Ben Givens. Givens told Ray the logs would cost $1.25 per unit and Georgia Pacific would be glad to sell 700 units each week to Roney’s operation. Thereafter, Roney purchased 700 units in the latter part of March 1979, but was subsequently sent a letter by Georgia Pacific advising him that core units would no longer be sold to any source other than their plant in Belk, Alabama.

On 7 March 1980, Roney and the Fosters filed their original complaint alleging that Ray, the bank, and Georgia Pacific had fraudulently represented that Roney could purchase 700 core units each week. The fraud allegedly occurred on 9 March 1979. The basis of this allegation was a statement taken from the letter sent by Ray to Roney on that date.

On 25 June 1981, Roney and the Fosters amended their complaint to allege both breach of contract, arising from representations on 9 March 1979, and that Roney was defrauded by Ray, the bank, and Georgia Pacific in April of 1978, regarding his purchase of Southern Log Homes. The trial court then entered summary judgment in favor of Georgia Pacific Company.

Roney and the Fosters again amended their complaint. The amendment restated a claim for fraud based upon representations occurring 10 April 1978 and allegedly discovered on or about 15 May 1979. Ray and the bank answered both the original and amended complaints by pleading the general issue, statute of limitations, laches, and other affirmative defenses.

The trial court repeatedly allowed Roney and the Fosters additional time for further discovery; however, on 22 April 1982 the trial court entered summary judgment in favor of Ray and the bank.

The pertinent provisions of the judgment read as follows:

“In pretrial conferences the plaintiffs’ attorney has stated and stipulated to the Court that his claims were based on fraud. These were the basis of his claim under the various counts he had filed. The Court finds certain amendments to the complaint which were not based on allegations concerning the log cores which change the theory of the charge of fraud to a charge that there was a misrepresentation with reference to a going business, were not timely filed and would be barred by the statute of limitations. The Court finds that the only grounds for fraud before the Court would be those grounds that were related to any misrepresentation of availability of the log cores.
“Nowhere in the plaintiffs’ deposition does it establish that the defendant, Scott Ray, made any representations regarding the purchase of log cores prior to or at the time the plaintiff purchased the subject business. All representations, if such were made, appear based upon the plaintiff’s deposition, to have taken place after the purchase of said business. Therefore there could not be any misrepresentations upon which he relied and acted.
“... There is no evidence before this Court that Scott Ray knew or should have known of any difficulty in getting logs or cores in April of 1978 or prior thereto. In fact, the evidence before the Court is to the effect that log cores could be bought at the time of sale and were in fact bought by the plaintiff in 1979, as well as an offered contract by Georgia Pacific to sell log cores to the plaintiff, which he rejected.
“Plaintiff has failed to establish any misrepresentations at or prior to the purchase of a material existing fact or evidence that he relied upon such prior to entering into said purchase agreement. ...”

The sole issue to be considered by this court is whether the trial court properly entered summary judgment. The burden is upon the moving party to show that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. ARCP, 56(c); Ragland v. Alabama Power Co., 366 So.2d 1097, 1099 (Ala.1978).

Our attention must focus on the legal principles relied upon by Roney and the Fosters. It is evident that the original complaint is based upon § 6-5-101, Code of Alabama, misrepresentation of material facts:

“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”

The essential elements of this tort are (1) a false representation (2) regarding a material existing fact (3) which the plaintiff relies upon (4) and is damaged by as a proximate result. Earnest v. Pritchett-Moore, Inc., 401 So.2d 752, 754 (Ala.1981); International Resorts, Inc. v. Lambert, 350 So.2d 391, 394 (Ala.1977).

The appellant failed to discover any evidence that Ray had made a representation, much less a false one. Roney asserts that Ray told Roney 700 log core units would be available each week from the Georgia Pacific Company. This assertion is based exclusively upon a statement within a memorandum sent from Ray to Roney. However, in our view this memorandum merely outlines a discussion between Ray and the Georgia Pacific plant manager. No false representations of existing fact were made by Ray. Without more, appellants are incapable of stating or proving a cause of action. See Sly v. First National Bank of Scottsboro, 387 So.2d 198 (Ala.1980).

Neither does Roney have any evidence of reliance in the record before us. In fact, it is clear the memorandum was sent to Roney after the sale of the business had occurred. Therefore Roney could not have relied upon the memorandum in purchasing the log business.

Lastly, any evidence that Ray knew that Georgia Pacific would not be able to supply Roney in the future is nonexistent. We must conclude that the original complaint, and the amendments thereto based upon the alleged representations of 9 March 1979, raise no genuine issue of material fact. Earnest v. Pritchett-Moore, Inc., 401 So.2d at 758.

The remaining counts are based upon representations allegedly made by Ray on 10 April 1978. Amendments may relate back to the original complaint where “the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” ARCP, 15(c). We are in agreement with the trial court in concluding the fraud alleged on 10 April 1978 is distinct in time, occurrence, and theory, from that which allegedly took place 9 March 1979. Accordingly, the amendments asserting fraud on 10 April 1978 may not relate back to the original pleading. Bank of the Southeast v. Jackson, 413 So.2d 1091 (Ala. 1982). Standing alone, the remaining counts are barred by the one year statute of limitations: § 6-2-3, Code 1975. Therefore, neither the original complaint nor any amendments thereto present any genuine issue of material fact. The trial court properly granted the motion for summary judgment and entered judgment against Roney and the Fosters. Accordingly, 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.


author: WRIGHT, Presiding Judge.

text:
    M.N. JERNIGAN, Jr., and V.E. Carter v. TELEDYNE EXPLORATION.
    Civ. 3252.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    Rehearing Denied Sept. 29, 1982.
    James E. Hart, Jr., Brewton, for appellant.
    Sam Peebles of Otts & Moore, Brewton, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the Circuit Court of Escambia County wherein the trial court granted a motion to dismiss for lack of subject matter jurisdiction. The only issue presented by this appeal is whether the Circuit Court of Escambia County has subject matter jurisdiction.

Jernigan and Carter (plaintiffs) filed a complaint alleging negligence by Teledyne in the conducting of seismic tests, resulting in damage to real property owned by them in Escambia County, Florida. Teledyne moved to dismiss for lack of subject matter jurisdiction. The motion was granted. Plaintiffs moved to reconsider and filed an amendment charging breach of an oral contract. The court denied the Motion for Reconsideration and entered a lengthy judgment of dismissal of the complaint as amended.

The amended complaint contains a claim for negligent injury by defendant to real estate located in Florida. It also claims damages for breach of an oral contract between plaintiffs and defendant entered into in Alabama. The first claim states a cause of action in tort. The second claim states a cause of action for breach of contract. Even if the first claim is classified as an action for damages for trespass to land, our supreme court has held as long ago as 1911, in the case of Woolf v. McGaugh, 175 Ala. 299, 57 So. 754 (1911), that such action is a personal one. In a personal action for damages only, jurisdiction of the court is acquired by personal service upon the defendant. This is opposed to actions in rem in which the nature of the action relates to seizure, control or delivery of the land. As pointed out in Woolf, subject matter jurisdiction does not relate to statutory territorial jurisdiction or venue. § 6-3-2, Code 1975. The issue of venue is not present in this case.

The parties stipulated and the trial court noted in its extended judgment that defendant Teledyne is a foreign corporation doing business in Escambia County, Alabama. There is no question that Teledyne is subject to suit there, § 6-3-7, Code 1975, and was properly served under Rule 4.2, A.R.Civ.P.

What we have said as to the claim for negligence applies even more clearly to the claim of breach of contract. Woolf distinguished transitory actions from local actions as follows:

“If the cause of action was one that might have arisen anywhere, then the action was transitory; but, if the cause of action could arise in one place only, then the action was local.” 175 Ala. at 303, 57 So. 754.

There can be no serious question that an action seeking damages for a breach of contract is transitory and may be brought at any place the defendant may be properly served with process, subject to transfer only upon a proper plea of venue. Jordan v. Guaranty Pest Control, Inc., 292 Ala. 601, 298 So.2d 244 (1974). The incidental involvement of real estate in such action does not affect the transitory nature. 20 Am. Jur.2d Courts § 127. The breach complained of here is the failure to pay damages as agreed. The fact that the damages resulted from injury to the land is incidental.

Thus it is required that we find that the trial court erred in holding it to be without subject matter jurisdiction and granting defendant’s motion to dismiss the suit. The case must be reversed and remanded for reinstatement of plaintiffs’ complaint.

The court briefly takes note of the extended observations of the respected trial judge in his judgment. We particularly note that he disagrees with our decision in the case of Garrett v. Key Ford, Inc., 403 So.2d 923 (Ala.Civ.App.1981). We accept his right to express his disagreement. However, it must be said that the pivotal issue in that case is entirely different from the pivotal issue in this one. Key was concerned with in personam jurisdiction, and this case with subject matter jurisdiction. The “long-arm” statute is not an issue in this case.

It appears that the problem which concerns the learned judge is that of the difficulty of trying cases in a circuit adjoining another state. This is a problem common to all border, near-border or even hinterland circuits in this day of a nomadic society with means of rapid transportation. To aid in that problem, there have been provided rules of discovery and enforcement which are reasonably uniform through all the states. Chapt. V, A.R.Civ.P. The proper use of these rules, together with other means of obtaining credible testimony of witnesses, seems to this court to enable a court or jury to receive sufficient evidence (or lack of it) to reach a fair judgment.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex parte TELEDYNE EXPLORATION. (Re M.N. JERNIGAN, Jr. and V.E. Carter v. TELEDYNE EXPLORATION).
    82-8.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    John Thaddeus Moore of Otts & Moore, Brewton, for petitioner.
    James E. Hart, Jr., Brewton, for respondent.
   FAULKNER, Justice.

The plaintiffs, Jernigan and Carter, were joint owners of a parcel of real estate located about eight miles south of the Alabama border in Florida. Teledyne Exploration was a foreign corporation qualified to do business in Alabama. A representative of Teledyne at Teledyne’s office in Foley, Alabama, called Jernigan at his home in Brew-ton, Alabama, to request that Teledyne be allowed to enter the property in Florida in order to conduct tests there in connection with oil and gas exploration. During a subsequent telephone conversation an agreement was reached whereby Teledyne was allowed to conduct the seismic tests. The plaintiffs alleged that in exchange for their permission to conduct the tests on their property Teledyne agreed to pay the plaintiffs “the same tree damage as Container Corporation” was paid when similar tests were conducted on its property.

Following the completion of the tests a dispute arose as to the amount of damages owed by Teledyne to the plaintiffs. The original complaint alleged negligence in the conducting of the seismic operations. The trial court dismissed the complaint on the grounds that it lacked subject matter jurisdiction, the court being of the opinion that the action for damages ex delicto to the real property in Florida was not transitory. The plaintiffs then amended their complaint to allege a breach of contract based on the telephone conversations which took place in Alabama. In a lengthy order citing its inability to compel the appearance of witnesses to the alleged damage in Florida, the trial court dismissed plaintiffs’ amended complaint. The Court of Civil Appeals reversed. We granted certiorari to review the decision of the Court of Civil Appeals that the Alabama courts may exercise subject matter jurisdiction.

As a general rule courts have jurisdiction over a “transitory” action irrespective of where the cause of action arose, so long as the court has personal jurisdiction over the defendant. “Local” actions, however, must be brought in the jurisdiction where the action arose. The distinction between transitory and local actions in American jurisprudence originated in Livingston v. Jefferson, 1 Brock 203, Fed.Cas. No. 8411 (1811). Livingston brought suit against Thomas Jefferson for trespass by Jefferson’s agents on land in Louisiana. Chief Justice Marshall, sitting as a circuit court justice, reluctantly adopted the rule of English common law whereby courts took jurisdiction over actions based on personal torts or contracts wherever service was perfected on the defendant, but exercised jurisdiction over actions for trespass to real property only when the property was located within the court’s jurisdiction. See Annot., 42 A.L.R. 196, 200-201 (1926). The rule was a vestige of the practice in England of select ing a jury from the community where the action arose on the assumption that the jury would be familiar with the parties and the facts of the case. Woolf v. McGaugh, 175 Ala. 299, 57 So. 754, 755 (1911). Although the rule has been abrogated or abolished in some jurisdictions, actions involving title to real estate, actions for injunc-tive relief to stop injury to real estate, or actions seeking damages for trespass or waste are usually classed as “local.” French v. Glinchfield Coal Co., 407 F.Supp. 13, 16 n. 7 (Del.1976) (citing numerous cases). See also, Annot., 30 A.L.R.2d 1219 (1953); Annot., 42 A.L.R. 196 (1926). Actions based on contracts, however, are transitory even where real property is involved. See 20 Am.Jur.2d Courts § 127 (1965).

The rule was criticized in the decision which adopted it, Livingston, supra, and was abolished by statute in England in 1873. Little v. Chicago, St. R, M.O. Ry. Co., 65 Minn. 48, 67 N.W. 846, 847 (1896). Much of the criticism directed toward the rule involved situations where the court with exclusive jurisdiction over the subject matter could not obtain jurisdiction over the defendant. In Reasor Hill Corp. v. Harrison, 220 Ark. 521, 249 S.W.2d 994 (1952), the owner of real property in Missouri whose cotton crop had been damaged when sprayed with insecticide sought to maintain a claim against the manufacturer of the insecticide, an Arkansas corporation which was not amenable to service of process in Missouri. In ruling that the Arkansas court should entertain the action for damages to real estate in Missouri, the Supreme Court of Arkansas stated:

“The truth is that the majority rule has no basis in logic or equity and rests solely upon English cases that were decided before America was discovered and in circumstances that are not even comparable to those existing in our Union. Basic principles of justice demand that wrongs should not go unredressed. Our own Bill of Rights puts the matter well enough: ‘Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character.’ Ark. Const., Art. 2, § 13. If Barton has been wronged he should have a remedy; to deny it is to encourage skepticism as to the ability of the courts to do their duty. Under the majority rule we should have to tell Barton that he would have been much better off had the petitioner stolen his cotton outright instead of merely damaging it. And the only reason we could give for this unfortunate situation would be that English juries in the thirteenth century were expected to have personal knowledge of the disputes presented to them. We prefer to afford this litigant his day in court.”

Reasor-Hill Corp., supra, 249 S.W.2d at 996.

The defendant relied primarily on Howard v. Ingersoll, 17 Ala. 780 (1850), to support its position that the action was local. In that case the plaintiff’s mill on the Chat-tahoochie River was damaged when the defendant built a dam downstream. The mill was located between the low and high water marks on the west side of the river. The case turned on the issue of whether the mill was located in Alabama or in Georgia. This court stated that if the mill was situated in Georgia the plaintiff’s action would not lie in Alabama because “all actions or suits to recover land, or to recover damages for injuries done to land, or real property, must be brought in the courts of the country in which the land is situated.” Howard, supra at 787-788; rev’d on other grounds 13 How. 381, 14 L.Ed. 189 (U.S.1851), on remand 23 Ala. 673 (1853).

The amended complaint contained one count for negligence and one count for breach of contract. To support its conclusion that the action for negligent damage to the property was transitory, the Court of Civil Appeals relied on Woolf v. McGaugh, 175 Ala. 299, 57 So. 754 (1911). Woolf involved a venue question where trespass was committed in another county within Alabama. Based on a statement in Woolf to the effect that under Alabama law an action for trespass to real estate is a “personal” action, the court below concluded that, even “if the first claim is classified as an action for damages for trespass to land ... such [an] action is a personal one” and, therefore, transitory. Jernigan v. Teledyne Exploration, [1982] 436 So.2d 878 (Ala.Civ. App.1982).

As to the claim for breach of contract, the Court of Civil Appeals ruled that actions seeking damages for breach of contract are transitory and may be brought wherever the defendant is amenable to service of process. Jernigan, supra. In support of that proposition the plaintiffs cited us to Campbell v. W.M. Ritter Lumber Co., 140 Ky. 312, 131 S.W. 20 (1910). In Campbell the court ruled that where a tenant entered real property under the terms of a contract and committed waste in violation of the agreement the action based on breach of contract could be brought wherever the defendant could be found.

With regard to the count for breach of contract we agree with the Court of Civil Appeals that the action is transitory, because it was an action ex contractu. Contract actions are generally considered transitory even where damage to real property is involved. Campbell, supra; 20 Am.Jur.2d, Courts § 127 (1965).

With regard to the tort-based claim, we note that the evidence is undisputed that the defendant went onto the property and performed the tests with the plaintiffs’ consent. Therefore, although the Court of Civil Appeals based its decision as to the negligence count on an assumption that trespass actions are transitory, we deem it unnecessary to reach the issue of whether Alabama courts can entertain trespass actions for injuries to land in Florida.

We are aware that some courts have specifically rejected the position that actions for injury to real estate are transitory where the gravamen of the action is negligence. See, e.g. Brisbane v. Pennsylvania R. Co., 205 N.Y. 431, 98 N.E. 752 (1912). The count for breach of contract, however, was clearly transitory and it is our opinion that, under the facts of this case, the negligence count did not destroy the transitory nature of the suit. See French v. Clinchfield Coal Co., 407 F.Supp. 13, 15-17 (Del. 1976). It would be going too far to rule that all actions for damage, ex delicto, to real property are “local.” This action is not one which is clearly and traditionally classed as local. It does not involve questions of title, does not seek injunctive relief, and does not claim damages for waste or trespass. In light of the well-reasoned criticism to the rule expressed by the authorities, we deem it appropriate to limit application of the rule to those cases where the underlying issues make application of the rule reasonable.

In its order the trial court expressed reservations about trying the action because witnesses in Florida cannot be compelled to appear. That problem is inherent in any action, “local” or “transitory,” involving events of an interstate character. A Flori- • da court trying this case would be at the same disadvantage with regard to witnesses to the negotiation or execution of the alleged oral contract in Alabama as our courts would be at with regard to witnesses to the alleged damage in Florida.

The decision of the Court of Civil Appeals is hereby affirmed.

AFFIRMED.

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

TORBERT, C.J., not sitting.