Opinion
8 Div. 425.
March 25, 1971.
Appeal from the Circuit Court of Madison County, David R. Archer, J.
McDaniel, Hall Parsons, Birmingham, for petitioner.
Where particular words or terms of a writing are ambiguous and subject to more than one meaning, it is the province of the jury to ascertain the meaning and determine the intent of the parties in light of all the surrounding facts and circumstances. Travelers Ins. Co. v. Kernachan, 214 So.2d 447, 283 Ala. 96; Boohaker v. Trott, 274 Ala. 12, 145 So.2d 174; Keel v. Weinman, 266 Ala. 684, 98 So.2d 611; Lutz v. Van Heynigen Brokerage Co., 199 Ala. 620, 75 So. 284. Where the evidence is without material conflict there is no presumption on appeal in favor of the trial court's judgment. Dept. of Industrial Relations v. Savage, 38 Ala. App. 277, 82 So.2d 435; Curry v. Curry, 283 Ala. 272, 215 So.2d 715; American Life Ins. Co. v. Williams, 234 Ala. 469, 175 So. 554; Barnes v. Clark, 227 Ala. 651, 151 So. 586, 90 A.L.R. 637. The right of trial by jury and its findings of facts from the evidence adduced cannot be too carefully guarded, and while great respect must be accorded to the action of the trial judge, nonetheless his rulings on the findings of facts must give way to the findings of the jury, except in such cases where the verdict of the jury is so contrary to the evidence as to be unjust and unfair. McEntyre v. First Natl Bank of Headland, 27 Ala. App. 311, 171 So. 913; Ala. Digest, Appeal and Error, 979(2).
No brief for appellee.
Petition of Reserve Insurance Company for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that court in Reserve Insurance Company v. Allstate Insurance Company, 8 Div. 37, 46 Ala. App. 678, 248 So.2d 576, is denied.
The denial of a petition for writ of certiorari to either of our courts of appeal does not necessarily indicate our approval of all the language used nor of the statements of law made in the opinion of that court. See Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829 (1935); In re Opelika Coca-Cola Bottling Co., Inc. v. Johnson, 286 Ala. 460, 241 So.2d 331 (1970).
Writ denied.
HEFLIN, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur.