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dd84b01f-297d-4dc1-a7f6-ccff111adea9 | State v. Helburn Co. | 111 So. 2d 912 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 912 (1959)
STATE of Alabama
v.
HELBURN CO., Inc.
3 Div. 799.
Supreme Court of Alabama.
March 26, 1959.
Rehearing Denied May 14, 1959.
*913 John Patterson, Atty. Gen., and Willard W. Livingston and Wm. H. Burton, Asst. Attys. Gen., for appellant.
Knabe & Nachman, Montgomery, for appellee.
LAWSON, Justice.
This is an appeal by the State from a final decree of the Circuit Court of Montgomery County, in Equity, vacating and setting aside a deficiency sales tax assessment made by the State Department of Revenue against The Helburn Company, Inc., a corporation, the appellee here, which will be referred to hereafter as Helburn.
During the period of time covered by the assessment, October 1, 1952, through September 30, 1955, Helburn was engaged in the business of selling hotel and restaurant equipment and in the business of selling and installing air conditioning equipment. Under typical contracts with the United States and the State of Alabama Helburn furnished and installed air conditioning equipment in buildings belonging to those governments.
Helburn did not remit to the State Department of Revenue any sales tax on the air conditioning equipment so furnished on the theory that such equipment was sold by it to the governments involved and, hence, under the express terms of the Sales Tax Law, no such tax was due. Subsections (a) and (b) of § 755, Title 51, Code of 1940, as amended.
The Department of Revenue after auditing taxpayer's records and examining the pertinent contracts determined that Helburn was liable for sales tax on the equipment furnished by it and accordingly included in a deficiency assessment an amount admitted to be correct if any sales tax is due on such transactions.
Such action of the Department of Revenue was based on the theory that Helburn was liable for sales tax under the hereafter quoted parts of Subdivision (j), Subsection (1), § 752, Title 51, Code of 1940, as amended, which for the purposes of this opinion we will hereafter refer to simply as Subdivision (j):
Helburn's business, at the time of the transactions presently under consideration and for a number of years prior thereto, was primarily that of a retail merchant. Helburn was so licensed by the State Department of Revenue. For the purposes of this opinion, but for those purposes only, it will be conceded that the evidence shows that Helburn purchased the air conditioning equipment at wholesale, and later withdrew such equipment from its stock of merchandise and had the equipment installed as parts of the government buildings by subcontractors in compliance with Helburn's obligations under its construction contracts with the governments concerned.
Did such conduct on the part of Helburn constitute a "withdrawal, use or consumption" of tangible personal property bought at wholesale within the meaning of Subdivision (j) which was added to our Sales Tax Law by Act No. 305, approved August 13, 1947, General Acts 1947, page 160?
Subdivision (j) has not been considered by the State Department of Revenue to be necessary to the collection of sales taxes on equipment furnished and installed under similar contracts with private individuals. That Department, prior to the time that Subdivision (j) became a part of our Sales Tax Law, considered such contracts with private individuals to encompass an ordinary sale of the equipment furnished and installed and has permitted the dealer to pass the tax on to the buyer whereas Subdivision (j) provides that the taxes due thereunder are to be paid by the party who *914 purchases at wholesale. And there has been no change of policy in regard to transactions with private individuals since the adoption of Subdivision (j).
We do not think it can be said that Subdivision (j) was enacted to enable the State to collect sales taxes on transactions of the kind here involved which retail dealers have with governments which are immune or exempt from State sales tax. The State Department of Revenue did not so construe Subdivision (j) from the time of its enactment in August, 1947, until a short time prior to March, 1956, when the assessment against Helburn here involved was entered. The record shows that this assessment results from the fact that the "State" (Department of Revenue) "revised" its position in regard to such transactions.
In our opinion, Subdivision (j) was enacted to reach transactions which could not be taxed because there was a withdrawal and use or consumption by the purchaser at wholesale but no sale by him to another. Hamm v. Windham, 254 Ala. 356, 48 So. 2d 310; Merriwether v. State, 252 Ala. 590, 42 So. 2d 465, 11 A.L.R.2d 918; State Tax Commission v. Burns, 236 Ala. 307, 182 So. 1; 38 Op.Atty.Gen. 37 (1945).
In determining and giving effect to legislative intent, courts may look to the history of a statute, conditions which led to its enactment, ends to be accomplished and evils to be avoided or corrected. Southern Express Co. v. I. Brickman & Co., 187 Ala. 637, 65 So. 954; American Bakeries Co. v. City of Opelika, 229 Ala. 388, 157 So. 206; Henry v. McCormack Bros. Motor Car Co., 232 Ala. 196, 167 So. 256.
The administrative construction given by the highest officials charged with the duty of administering tax laws, while not binding on the State, is to be considered in the interpretation of a statute which has not been interpreted by the courts. State v. Advertiser Co., 257 Ala. 423, 59 So. 2d 576; Cole v. Gullatt, 241 Ala. 669, 4 So. 2d 412. Cf. Merriwether v. State, supra.
Subdivision (j) deals with coverage, not with an exemption, and, hence, it should be construed strictly against the taxing power and with favor indulged toward the taxpayer. Doby v. State Tax Commission, 234 Ala. 150, 174 So. 233; Jordan Undertaking Co. v. State, 235 Ala. 516, 180 So. 99. See State v. Ben R. Goltsman & Co. (Use Tax), 261 Ala. 318, 74 So. 2d 414.
In view of the history of Subdivision (j), the construction placed on it for almost ten years by the State Department of Revenue and the rule that it must be strictly construed against the taxing power, we hold that it is not authority for the imposition of a sales tax on Helburn based on the equipment furnished by Helburn in performing the contracts here involved, and that the trial court correctly vacated and set aside the part of the assessment based thereon. So, the question which we posed above is answered in the negative.
We wish to make it clear that we are not here dealing with use tax but with a sales tax assessment based on Subdivision (j).
The remaining part of the deficiency assessment was concerned with the sale by Helburn of air conditioning and restaurant equipment to individuals and business concerns who secured the equipment by making a down payment and by executing written instruments considered by the parties as being conditional sale contracts, under the terms of which title to the equipment was to remain in Helburn, his transferee or assignee until the purchaser paid all of the purchase price.
Helburn assigned and transferred to the First National Bank of Montgomery not only its rights under the contracts but also "the chattels referred to herein." The assignments were with recourse.
*915 Helburn paid sales tax on the full purchase price of the several items of equipment. The purchasers defaulted. Helburn paid to the bank the unpaid purchase price and then repossessed the equipment.
Thereafter, Helburn in its sales tax returns to the Department of Revenue claimed credit for the amount of sales tax which it had remitted to the Department of Revenue on that part of the purchase price which the purchasers did not pay.
For many years the Department of Revenue allowed such credits based on a policy formulated in the early days of the Sales Tax Law. However, that Department began to disallow such claimed credits shortly prior to the deficiency assessment here involved in which was included an amount equal to the credits claimed by Helburn.
Section 757, Title 51, Code of 1940, reads:
The State contends that when Helburn assigned and transferred to the bank not only the contracts but the title to the property therein described, sales of tangible personal property then occurred which were subject to the sales tax; and that the credits claimed were improper.
Title 51, § 753, Code 1940, as amended, imposes a three percent tax on sales of tangible personal property. It provides in part:
The term "gross proceeds of sales" is defined by Title 51, § 752(f), as amended, as the "value proceeding or accruing from the sale of tangible personal property." (Emphasis Supplied.)
In determining the validity of the aspect of the deficiency assessment presently under consideration, the transactions above described must be measured against the provisions of Title 51, § 753, above. (1) Did the assignment and transfer to the bank constitute the sale of tangible personal property? (2) Did value proceed or accrue to Helburn when it received funds from the bank? (3) Does the assignment to the bank constitute a sale, or was it a loan? In our opinion if the answer to any of the above questions is in the negative the aspect of the deficiency assessment now under consideration is invalid.
The answer to the first question is dependent on the effect of the contract. If Helburn still retained the general title to the equipment after entering into the contracts sales of tangible personal property occurred upon the subsequent assignments to the bank. If, however, the contracts had the effect of passing general title to the buyers, Helburn at the time of assignments to the bank had no title to tangible personal property and, of course, it could not sell to the bank that which it did not own.
*916 Our cases are to the effect that in transactions concerning retention of title contracts similar to those here involved the seller actually passes the "general and beneficial ownership" to the purchaser, retaining only "a special property," "a charge on the property as security for the balance due," a form of lien on the property or a secured evidence of indebtedness. Bern v. Rosen, 259 Ala. 292, 66 So. 2d 711; General Motors Acceptance Corporation v. Crumpton, 220 Ala. 297, 124 So. 870, 65 A.L.R. 1313; State v. White Furniture Co., 206 Ala. 575, 90 So. 896.
In our opinion, such assignments were no more subject to the sales tax than would be the sale of a mortgage on tangible personal property. In actuality neither is anything more than the sale of an indebtedness.
We are of the opinion that for this reason alone the part of the assessment here involved is invalid.
However, we are also of the opinion that under the transactions above described, no value proceeded or accrued to Helburn until the installments were paid by the purchasers and Helburn's liability to the bank correspondingly decreased. From an accounting standpoint, Helburn was in the same position before the assignments as he was thereafter. Helburn had increased its cash on hand but had correspondingly increased its potential liability. Its potential liability would decrease and value would accrue only as installment payments were made.
We are also of the opinion that for the purposes of determining sales tax liability, where in case of doubt all presumption should favor the taxpayer, the transactions above described should be considered loans and not sales.
While the factual situations are somewhat different the conclusion which we have reached is in accord with our holding in the case of State v. Hayes, 266 Ala. 632, 98 So. 2d 422.
We are of the opinion that the trial court correctly vacated and set aside both aspects of the deficiency assessment. It follows that the decree of the trial court is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 26, 1959 |
88acefc8-7399-4490-ab60-5ebd84f8868d | Fuqua v. Roberts | 110 So. 2d 886 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 886 (1959)
D. B. FUQUA
v.
Woodrow ROBERTS.
6 Div. 134.
Supreme Court of Alabama.
April 9, 1959.
*887 Earl Alford, Winfield, for appellant.
Fite & Fite, Hamilton, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from a decree of the Circuit Court of Fayette County, Alabama, in Equity, sustaining a demurrer to the amended bill of complaint. This appeal is here by virtue of § 755, Title 7, Code of Alabama 1940.
The bill, in substance, alleges that the complainant is conducting an automobile sales business at Birmingham under the name and style of City Car Market, and has been conducting such business for five or more years. He further alleges that the respondent is now conducting a similar automobile sales business in Fayette, Alabama, under the name and style of The City Car Market, and that such a business was commenced in the year 1955. Paragraph 4 of the amended bill is as follows:
There is a prayer to enjoin the respondent from using the name "The City Car Market" and for general relief.
"It is a cardinal rule of equity pleading that a bill should show with certainty and clearness that the complainant has a right that warrants protection, and the respondent must be distinctly informed of the nature of the case which he is called upon to defend; otherwise it is subject to demurrer." Montgomery v. Drinkard Auto & Truck Co., 257 Ala. 685, 60 So. 2d 823, 825. But "the same precision of statement is not generally required in equity as at law, and the certainty with which averments must be made will depend on the particular case." Martin Stamping & Stove Co. v. Manley, 260 Ala. 112, 69 So. 2d 671, 681.
Courts of equity have liberally exercised their injunctive powers to prevent injury from the infringement of trade names wherever it appeared the name was established, distinctive and a valuable adjunct to a place of business. All that is necessary is to inform the court that the complainant's trade is in danger of harm from the use of its name by the respondent in such a manner as it is likely to deceive the public into the belief that the respondent's affairs, in the respect complained of, are those of the complainant. Try-Me Bottling Co. v. Teaver, 241 Ala. 266, 2 So. *888 2d 611; N. L. Pierce Nat. Detective Agency v. Pierce Detective Agency, 217 Ala. 594, 117 So. 191.
It is not necessary to show in a bill for injunctive relief only that any person or persons have been actually deceived. McVay & Son Seed Co. v. McVay Seed & Floral Co., 201 Ala. 644, 79 So. 116; Boston Shoe Shop v. McBroom Shoe Shop, 196 Ala. 262, 72 So. 102.
Appellant admits in brief that the businesses of complainant and respondent are approximately 100 miles apart.
Undoubtedly, the question of competition will arise upon trial, but complainant alleges that he has extensively advertised in Fayette County and has sold and expects to sell automobiles to the people of Fayette County. The fact that Birmingham, Alabama, and Fayette, Alabama, are different communities approximately 100 miles apart is not of controlling significance. Ball v. Best, C.C., 135 F. 434; Hub Clothing Co. of Wilkes-Barre v. Cohen, 270 Pa. 487, 113 A. 677.
In N. L. Pierce Nat. Detective Agency v. Pierce Detective Agency, supra [217 Ala. 594, 117 So. 191], this court said:
This court stated in Boston Shoe Shop v. McBroom Shoe Shop, 196 Ala. 262, 72 So. 102, 103:
* * * * * *
*889 "Nor is it necessary to show, in a bill for injunction merely, that any persons have been actually deceived. 38 Cyc. 773, and cases cited."
This court, in the case of G. B. McVay & Son Seed Co., Inc., v. McVay Seed & Floral Co., Inc., supra [201 Ala. 644, 79 So. 119], stated:
In Try-Me Bottling Co. v. Teaver, 241 Ala. 266, 2 So. 2d 611, 615, this court said:
It is said in 87 C.J.S. Trade-Marks, etc. § 30 P. 265, that:
And in 87 C.J.S. Trade-Marks, etc. § 33 P. 268, it is said:
In the case of Cape May Yacht Club v. Cape May Yacht & Country Club, 81 N.J. Eq. 454, 86 A. 972, 973, it is said:
Although the bill of complaint is not the epitome of legal draftsmanship, we think it sufficiently shows an equitable cause of action and it was error to sustain the demurrer.
Reversed and remanded.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | April 9, 1959 |
2173996e-0082-4b0d-af6c-229d234df8a6 | State v. Ferguson | 110 So. 2d 280 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 280 (1959)
STATE of Alabama
v.
J. L. FERGUSON et ux.
7 Div. 391.
Supreme Court of Alabama.
March 12, 1959.
*281 John Patterson, Atty. Gen., and E. L. Roberts, Gadsden, Sp. Asst. Atty. Gen., for appellant.
Hawkins & Rhea, Gadsden, for appellees.
STAKELY, Justice.
In this case a petition for condemnation by the State of Alabama was filed in the Probate Court of Etowah County on the 18th day of August, 1956. A hearing was ordered on the petition on the 4th day of October, 1956, and an order entered on the 9th day of October, 1956, granting the application for condemnation and appointing commissioners to assess the damage and compensation to be paid to the owners of the land to be condemned. The commissioners filed their report in the probate court on October 30, 1956, and assessed the amount of damage and compensation to be paid to the landowners in the amount of $9,647.50. A final decree of condemnation was entered in the probate court on the 14th day of December, 1956. From this final decree the defendants, J. L. Ferguson and Glennis Ferguson, gave notice of appeal to the circuit court on the 15th day of December, 1956, and a supersedeas bond was filed by the petitioner to allow entry on the land pending the appeal.
The case was tried de novo in the Circuit Court of Etowah County on April 15, 1957. The right of petitioner to condemn the property was acknowledged and the only question in the case was that of just compensation for the land taken. The court and the jury were not concerned with the damages sustained to the remaining lands of the tract or any enhancement since this proceeding was for the entire property owned by the defendants, which consisted of one lot and a duplex house located in East Gadsden, Alabama. There was verdict and judgment for the defendants in the sum of $11,750.00, as just compensation for the property taken. Motion for new trial was filed by the petitioner and the same was overruled by order of the court. This appeal followed.
The motion for new trial contained only four grounds as follows:
We point out that none of the foregoing grounds assigned as the basis for a motion for new trial makes any reference to the alleged excessiveness of the verdict. We might add that in no place in the record does it appear that the question of the excessiveness of the verdict was presented to the trial court.
Our cases make it clear that the question of the excessiveness of the jury's verdict will not be considered or determined on appeal unless such question is first presented to the lower court which is usually done by motion for a new trial. The motion must specifically challenge or question the amount of the verdict as being excessive. § 811, Title 7, Code of 1940; Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 274; Central of Georgia R. Co. v. Chicago Varnish Co., 169 Ala. 287, 53 So. 832; Central of Georgia R. Co. v. Chambers, 197 Ala. 93, 72 So. 351.
The obvious purpose of requiring the question of the excessiveness of the verdict *282 to be first raised in the lower court, is to provide an opportunity for the trial judge to resolve the question and an opportunity for the appellee to file a remittitur without the additional expense, inconvenience and delay of appeal and without burdening the Supreme Court with such a question raised for the first time on appeal. In the case of City of Anniston v. Douglas, 250 Ala. 367, 34 So. 2d 467, this court pointed out that § 811, Title 7, Code of 1940, providing for a remittitur presupposes action by the trial court on the question of the amount of damages. In that case the question of excessiveness of the verdict was not raised by a motion for a new trial, but was raised by action of the trial court in directing the jury in the amount of the verdict.
In the case of Cook & Laurie Contracting Co. v. Bell, supra, the appellant filed a motion for a new trial on the ground that the verdict was contrary to the evidence. This court observed that remittiturs are favored by the courts in proper cases for the promotion of justice and the ending of litigation. If the practice of remittitur is to be made available it is necessary that the trial court should be properly informed of this complaint against the verdict and hence a motion to set aside should plainly challenge it as being excessive in amount. The question is not properly raised by an assignment merely that the verdict is contrary to the evidence and hence the trial court cannot be put in error for overruling the motion.
In the case of Central of Georgia R. Co. v. Chambers, supra, this court remarked that the statute (§ 811, supra), was not intended to confer on this court original jurisdiction to grant a new trial. In that case this court refused to consider the question of excessiveness because it had not been specifically and properly raised in the lower court. See also Coca Cola Bottling Co. v. Barksdale, 17 Ala.App. 606, 83 So. 36; Deal v. Atlantic Coast Line R. Co., 225 Ala. 533, 144 So. 81, 86 A.L.R. 455.
Since the only question argued on this appeal is the excessiveness of the verdict, which cannot be considered by this court, as we have pointed out, there is nothing left for us to review and the judgment of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 12, 1959 |
6d18afa7-446d-45fe-9455-efc0e8b2a170 | Fuller v. State | 113 So. 2d 153 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 153 (1959)
Albert FULLER, alias Albert F. Fuller,
v.
STATE of Alabama.
6 Div. 917.
Supreme Court of Alabama.
February 12, 1959.
Rehearing Denied June 25, 1959.
*155 Beddow, Gwin & Embry, Beddow & Jones, Roderick Beddow, Robt. W. Gwin, Roderick Beddow, Jr., Birmingham, and V. Cecil Curtis, Phenix City, for appellant.
John Patterson, Atty. Gen., and Bernard F. Sykes, MacDonald Gallion, Geo. Young and Jas. Webb, Asst. Attys. Gen., for State.
LIVINGSTON, Chief Justice.
The appellant, Albert Fuller, was indicted on December 9, 1954, by the Grand Jury of Russell County, Alabama, on a charge that he unlawfully, and with malice aforethought, killed Albert L. Patterson by shooting him with a gun or pistol against the peace and dignity of the State of Alabama.
On January 27, 1955, the appellant filed a petition in the Circuit Court of Russell County, Alabama, requesting a change of venue. On the same date, Honorable J. Russell McElroy, Circuit Judge, granted the change of venue and ordered the trial of the case removed to the Tenth Judicial Circuit of Alabama; and on the same day the appellant was arraigned in the Circuit Court of Russell County, Alabama, and entered a plea of not guilty. Thereafter, on January 31, 1955, the appellant was arraigned in the Circuit Court of the Tenth Judicial Circuit of Alabama, and entered a plea of not guilty. The cause was set for trial on February 14, 1955, and upon being called for trial on February 14, 1955, it was continued until February 15, 1955, and on which latter date the trial began and continued for approximately four weeks. On March 11, 1955, the jury returned a verdict of guilty of murder in the first degree and fixed Fuller's punishment at life imprisonment in the penitentiary.
*156 A motion for a new trial was filed on April 11, 1955, and regularly continued several times. On June 6, 1955, an amendment to the motion for a new trial was filed. The motion for the new trial, as amended, was heard on June 13, 1955 and overruled on June 16, 1955.
Fuller was sentenced in accordance with the verdict of the jury, and he appealed.
The appellant argues eight propositions of law for a reversal of the cause, and we will treat them in the order in which they are argued in appellant's brief. But before proceeding to discussion of the several propositions argued, and for a clearer understanding of this opinion, we think it not amiss to here state some of the background and uncontradicted facts in the case.
Albert L. Patterson, long a resident citizen of Phenix City, Russell County, Alabama, was the Democratic nominee for the office of Attorney General of the State of Alabama in the May 1954 Democratic Primary Election.
He was killed on the night of June 18, 1954, at about 9:00 o'clock p. m. Patterson's office was on the second floor of the Coulter Building in downtown Phenix City, Alabama. On the night that he was killed, his automobile was parked in an alley beside the Coulter Building. Patterson had left his office about 9:00 o'clock and proceeded to his automobile, and had apparently gotten in it. He was shot, after which he apparently got out of the car and walked around in front of the Coulter Building where he collapsed on the sidewalk and died.
The appellant, Albert Fuller, and two others were indicted, separately, by the Grand Jury of Russell County, Alabama, for murder in the first degree as a result of Patterson's death. Albert Fuller was at the time of Patterson's death the Chief Deputy Sheriff of Russell County, Alabama.
The case of this appellant and Arch Ferrell, one of the other accused in Patterson's death, was set for trial in Jefferson County on the 14th day of February 1955, but was, on that date, continued to February 15, 1955. One venire was drawn and summoned for the trial of both cases. The jury was drawn, summoned and impaneled under the provisions of Title 62, Sec. 196 et seq., Code of 1940, which is a local jury law applicable to Jefferson County, Alabama.
Appellant's Proposition No. I
"The court erred in making a statement to the venire from which the jury was selected to try appellant's case which intimidated and overreached the members of the venire to such an extent as to deprive the appellant of a fair and impartial trial."
For better understanding and before quoting the statement in question, we here state some of the circumstances surrounding its making.
On February 14, 1955, at which time the state had not indicated whether they would try the appellant first or Arch Ferrell, one of the other accused, whose trial was set for the same date, Presiding Judge Russell McElroy proceeded to hear excuses of veniremen, such as sickness, disqualification, and other claims of exemptions from jury duty. Before hearing said excuses, the court stated:
The trial court then proceeded to hear the excuses of the veniremen in reference to both cases set for trial that day, that of appellant, Fuller, and the other accused, Ferrell. Subsequently, and after the State of Alabama had announced ready and had elected to try Albert Fuller first instead of Ferrell, the other accused whose case was set for the same date, the trial court, by way of explanation, made the following statement to the veniremen:
The trial court then proceeded to question the jurors concerning their residence, citizenship, indictments for a felony, relationship to defendant and to the deceased, and circumstantial evidence; whether or not veniremen had made any promises or given any assurance of a conviction or an acquittal. The trial court then made the following statement which is the basis for appellant's Proposition No. 1:
"Well, we will go back just a minute to the Sheppard trial [State v. Sheppard, 165 Ohio St. 293, 135 N.E.2d 340] that took place up in Cleveland, Ohio. That was tried. There were two trials of that case. One was in the court room, and the other was back before what we call the great bar of public opinion that did not hear the evidence in the case. Have you a *158 judgment about that? A lot of people say, well, I don't think they proved him guilty, and a lot say I think they proved him guilty. Do you know who is a better judge of that than you? The folk that sat there and heard the evidence. That is true in any case, and that is true whether the verdict is a verdict of guilty, or a verdict of acquittal.
"(No response)." (Emphasis supplied by appellant's counsel.)
To the foregoing statement, appellant made no objection whatever.
The court then proceeded to qualify the jury as to a fixed opinion against capital punishment. Several jurors indicated that they had fixed opinion against capital punishment and were excused after being challenged for cause by the State of Alabama. During this part of the proceedings, the trial court stated:
After the jurors, who had been challenged for cause on account of their views on capital punishment, and the challenge sustained, were excused, the following proceedings were had:
"Mr. Deason: I have no exception whatever.
Appellant's attorney made no reply to this inquiry.
Subsequent to the proceedings outlined above, counsel for both the appellant and the state were given ample opportunity to question veniremen touching their qualifications, bias, sympathy, interest, feeling, and opinions. In so doing, the trial court stated to the jurors:
Thereafter, counsel for appellant was given a full opportunity to question veniremen concerning their qualifications, including whether or not said veniremen had a fixed opinion. Counsel for appellant availed himself of this opportunity by examining the veniremen in panels of 12 men.
Illustrative of counsel's examination of veniremen concerning whether or not they had a fixed opinion is the following excerpt from the record, after a prospective juryman had stated that he had read many newspapers concerning the "Phenix City situation":
"Mr. Beard: No, Sir.
"Mr. Beard: No, Sir."
Counsel for appellant also questioned this juror and the other veniremen concerning whether or not they would act solely upon the evidence presented on trial, and *160 questioned the veniremen concerning reasonable doubt.
Further illustrative of appellant's questioning jurors concerning their fixed opinion, the record shows as follows:
After the foregoing proceedings were had, it appears that counsel for the state and for the appellant proceeded to strike the jury without any motion by appellant and without any objections by appellant to strike from the list furnished, nor was there any motion by the appellant to quash the venire or for a mistrial, and appellant challenged no venireman for cause.
Counsel for appellant raises the question now under discussion for the first time on his motion for a new trial. Nowhere in the record is attempt made to show that any member of the jury which tried appellant, or any member of the venire from which the jury was selected, had a fixed opinion as to guilt or innocence of the defendant. The argument is made that the trial court's remarks were of such a nature as to overawe or intimidate the members of the venire, including the jury impaneled to try defendant, to the extent that they were prevented from indicating that they had a fixed opinion as to the guilt or innocence of the defendant; that the defendant was thereby deprived of trial by a fair and impartial jury as guaranteed him by the Constitution of the State of Alabama, § 6, and the Constitution of the United States, Amend. 14.
We cannot agree with this insistence for several reasons.
We have carefully examined the cases relied on by appellant to support his Proposition of Law No. I and find them inept.
In the first place, after a careful consideration of the remarks of the trial judge, we are not persuaded that his explanation of a fixed opinion was calculated to so intimidate or overawe the veniremen as to deter them from stating that they had a fixed opinion if they had one. In Willingham v. State, 262 Ala. 550, 80 So. 2d 280, 282, we said:
"Our statute, Code of 1940, Title 30, § 55(7) reads:
We think it clear that the criterion for deciding whether a juror is disqualified by reason of a fixed opinion depends upon the extent, the degree, or the deepness of his impression. If the deepness of the impressions is such as to close the mind of the juror, he should be disqualified. A fixed opinion which would bias the verdict is a conviction or prejudgment, a strong or deep impression which closes the mind of the juror and combats the testimony and resists its force.
The theme of the trial court's explanation to the jury was that a jury should act alone on testimony of sworn witnesses and should not be influenced in any manner by any preconceived ideas or opinions whether those ideas or opinions were derived from newspaper accounts or otherwise. He described a fixed opinion as a buttheaded opinion characterized by a stubbornness that refused to be governed by testimony of witnesses who swore to have personal knowledge. The trial court not only explained to the jury the meaning of a "light impression" and a "mere opinion," but at the same time he also followed the definition set out in Willingham v. State, supra, and merely pointed out to the jurors in words that they could understand and in common, ordinary, everyday language *162 the meaning of a deep impression or an unyielding opinion.
According to Webster's New International Dictionary, 2d Edition, buttheaded means "obstinate," while stubborn means "fixed, resolute, or unyielding; inflexible; especially unreasonably unyielding, obstinate."
Although not used in the same context as here used the words "stubborn" or "obstinate" or "buttheaded" have not been held to be forbidden in addressing jurors or veniremen. These words have been used in cases where jurors seem somewhat reluctant to agree on a verdict in criminal cases.
In Odette v. State, 90 Wis. 258, 62 N.W. 1054, 1055, the trial judge urged a jury not to stand out in an "unruly and obstinate way." This was held not to be reversible error.
It was stated in People v. Faber, 199 N.Y. 256, 92 N.E. 674, 676, that jurors may be properly warned "against stubbornness and self-assertion."
In Shaffman v. United States, 3 Cir., 289 F. 370, 374, it was held not error for the court to admonish jurymen of their duty not to be persuaded by obstinate adherence to earlier impressions formed in the jurors' minds. The trial court had said to the jury:
In Johnson v. State, 60 Ark. 45, 28 S.W. 792, 793, it was held not error to admonish the jury not to "be obstinate or too tenacious of your views," and the appellate court said this meant to the jurors that they should not be "stubborn."
In Benson v. State, 149 Ark. 633, 233 S.W. 758, 760, it was held that the trial court did not commit error in saying to the jury "sometimes we find a juryman, or anybody else in life, that says a horse is sixteen feet high, and they want to stand by it, right or wrong. It shows good judgment for a juryman to listen to his fellow jurors in giving their opinion."
In Golatt v. State, 130 Ga. 18, 60 S.E. 107, the appellate court held that the trial court did not commit reversible error when the jury that fails to agree is told that no juror should "stick out" in the spirit of stubbornness. The Ohio Supreme Court in Liska v. State, 115 Ohio St. 283, 152 N.E. 667, 668, held that it was not reversible error for the trial judge to admonish the members of a jury "not to act from stubbornness alone."
So that in many jurisdictions, the words "stubbornness," "obstinate," and synonyms of "buttheaded" have been used to describe jurors without the appellate court considering that a juror was ridiculed or deterred from expressing a free opinion.
Looking to other parts of the record, it is quite clear that the veniremen in this case did speak out freely when the court was hearing excuses from service. Jurors also spoke out when they were interrogated concerning their feelings about capital punishment after the court had explained the meaning of "fixed opinion against capital punishment." Several jurors were not so deterred that they refused to express their opinions with fear of ridicule. So, also, upon examination by counsel for the defendant the veniremen were fully questioned concerning their opinions.
Perhaps the most convincing argument that there is no likelihood that any venireman had a fixed opinion that would bias his verdict but failed to state it, is the fact that able and experienced counsel for the appellant proceeded to strike from the panel without any objection whatsoever. He was not forced or coerced to do so, and at the time was evidently satisfied with the qualifications of the veniremen.
*163 In the second place, it was not error for the court to inquire of the veniremen if they or any of them had a fixed opinion as to the guilt or innocence of the accused. Indeed, it was his duty to do so. If the manner in which the court conducted such inquiry resulted in prejudicial error to the accused, it is his duty to show such error. It cannot be presumed. Kabase v. State, 31 Ala.App. 77, 12 So. 2d 758, certiorari denied 244 Ala. 182, 12 So. 2d 766. See Title 30, Secs. 6 and 55, Code of 1940; see, also, Sec. 6, Constitution of Alabama 1901. Our cases are legion to the effect that the burden is on the party alleging error to show it affirmatively by the record. See Ala.Digest, Appeal and Error, et seq. The presumption is that the case was tried by an impartial jury. Gayle v. Court of County Com'rs, 155 Ala. 204, 46 So. 261.
We are not unmindful of that line of cases which hold in effect that the jury, in their deliberations, should be uninfluenced by misconduct that might have influenced them and might have affected the verdict that was rendered. In those cases, the test of vitiating influence is not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced the verdict rendered. Roan v. State, 225 Ala. 428, 143 So. 454, and cases there cited. Here, it is not contended that the remarks of the trial court influenced the jury's verdict one way or the other, as, indeed, it could not have had such influence.
We are cited to no case, nor has our research revealed one, deciding the exact question here presented. It is analogous to several different situations. First, it is analogous to the court's oral charge to the jury in a criminal case. If parts of the charge are objectionable, it is incumbent upon the defendant to specifically point out the objectionable parts and to reserve an exception to the trial court's failure or refusal to correct it. See Kelley v. State, 226 Ala, 80, 145 So. 816, and cases therein cited, and also 6A Ala.Dig., Criminal Law.
Another analogous situation arose in the case of Haygood v. State, 252 Ala. 3, 38 So. 2d 593, 596, where the court explained the purpose of requiring objection and exception to the remarks of the court before a review is obtainable here. In that case, the appellant complained on appeal of the manner in which a witness was questioned by the court, specifically that the court's manner of questioning implied the guilt of the defendant on trial. The Court there stated:
In the instant case, the trial judge specifically inquired of counsel as to whether or not they had any exception to his remarks. Counsel for the state replied that he had none; counsel for the appellant made no reply whatever. We have noted above that the trial court gave to the parties in this cause what is termed an "automatic exception." The "automatic exception" was given before the trial court asked counsel for defendant if he had any corrections he wanted made and subsequent to the remarks now complained of. In response to the invitation by the court, counsel said nothing, but proceeded later to examine the jurors concerning their fixed opinions and other matters, and then proceeded to strike from the list or panel without any objections whatsoever. Under the circumstances of this case, the trial court had the right to assume that its definition *164 of the fixed opinion was acquiesced in by the appellant and was free from error.
In Thomas v. State, 150 Ala. 31, 43 So. 371, 377, this Court said:
In the case of Page v. Hawk, 250 Ala. 26, 33 So. 2d 8, 11, the appellant contended for a reversal because of two remarks made by the trial court during the progress of the trial. This Court there said:
Cases which we have alluded to above are not, it is true, directly in point, but we think they serve as a perfect analogy and their reasoning applies with equal force in respect to statements concerning fixed opinions made by the trial court in the impaneling of a jury. Strength is added to the above when we consider, regardless of an automatic exception, the fact that the defendant later without protestation, objection or exception of any kind whatsoever, struck the jury that tried the defendant from the panel given him. Wilson v. State, 243 Ala. 1, 8 So. 2d 422, 429. The striking of the jury did not involve excusing jurors, did not involve challenges for cause, did not involve the organization of the venire, nor any other such matter where counsel may contend that he had an automatic exception, but only involved the selection of the jury for the trial of the case. In the Wilson case, supra, in regard to a juror's qualifications or disqualifications in order that such question may be reviewed on appeal, this Court said:
In Draper v. State, 250 Ala. 679, 36 So. 2d 73, this Court said:
Again in Taylor v. State, 249 Ala. 130, 30 So. 2d 256, 261, this Court said:
But appellant contends that because of the remarks of the trial court and the results of such remarks, he has been denied a fair trial by an impartial jury as guaranteed by the Constitution of the State of Alabama and the United States. But even constitutional rights have to be raised seasonably in the trial court. Gibbs v. State, 7 Ala.App. 30, 60 So. 999; Scott v. State, 247 Ala. 62, 22 So. 2d 529, and Ball v. State, 252 Ala. 686, 42 So. 2d 626, 631, certiorari denied 339 U.S. 929, 70 S. Ct. 625, 94 L. Ed. 1350. Quoting from the Ball case, we said:
Appellant's Proposition of Law No. II
"The court erred in denying the appellant a new trial after conclusive proof was offered by the appellant that pertinent, relevant and competent evidence known to one Arch Ferrell was not available to the appellant during the progress of appellant's trial; but said unavailable evidence is now and will in the future be available if a new trial is granted to appellant."
This insistence of appellant is based on substantially the following facts:
As before stated, three individuals; namely, Albert Fuller, Arch Ferrell and Silas Coma Garrett, III, were indicted separately for the murder of Albert L. Patterson. The cases against Fuller and Ferrell were set for trial at Birmingham on February 14, 1955, Garrett, at that time, being in a hospital in Texas. The state elected to try the case against Albert Fuller first. Three state witnesses placed Albert Fuller at or near the scene of the homicide at the time Patterson was killed. Two of these witnesses placed both Arch Ferrell and Albert Fuller at the scene of the homicide at the time Patterson was killed. The three witnesses placed Albert Fuller at a point near the scene of the homicide within a few seconds after Patterson was killed.
At the time the appellant's motion for a new trial was pending, Arch Ferrell was tried in the Circuit Court of the Tenth Judicial Circuit of Alabama for the death of Patterson, and was acquitted by the jury. Appellant then amended his motion for a new trial on the ground that the said Arch Ferrell was indicted for the same identical offense as that charged against him, appellant Fuller, and that the testimony of said Arch Ferrell was not available to the defendant, Albert Fuller, at the time of his trial, but would be available to said defendant on a new trial. It is alleged, in substance, in said amended motion for a new trial that counsel for Fuller *166 requested the said Arch Ferrell, through his attorney, that he testify in behalf of defendant, that said attorney refused to let Arch Ferrell testify. It is further averred that since the verdict in the Fuller case, Ferrell was tried and acquitted by another jury; that Ferrell's testimony is now available to the appellant. In support of the amendment of appellant's motion for new trial, an affidavit of Ferrell was attached thereto. In substance, the affidavit of Ferrell states the manner in which Ferrell arrived in downtown Phenix City on the night Patterson was killed. Affiant, Ferrell, further deposes that he was on the telephone in his office at the Russell County courthouse from 8:53 p. m. E.S.T., continuously until approximately 9:15 p. m., E.S. T., which covers the period of time during which the killing of Patterson occurred. The affidavit further states that Ferrell did not see Fuller at any time during the night of June 18, 1954, the night of the killing, prior to the time Patterson was killed. Affiant further denies the testimony of a witness to the effect that immediately after the shots were fired, the witness observed Ferrell running from a point behind the Phenix City Post Office along 5th Avenue and 14th Street, and stopping at the flagpole located near the Phenix City Post Office. Affiant, Ferrell, further denies testimony of a witness to the effect that at the time the shots were fired, he, the witness, observed Fuller, and "in his best judgment," Ferrell standing beside the Patterson automobile, and that Fuller and Ferrell ran from the scene. Affiant, Ferrell, further denies that he was standing with Albert Fuller in front of the Coulter Building at approximately 8:50, E.S.T., as testified to by another state witness.
The affidavit of Ferrell further includes a statement that the time Albert Fuller was tried "he was not available to him as a witness." The reason for his not being available, as stated in the affidavit, was that his attorneys instructed him not to take the stand in the Fuller case, and that he, Ferrell, followed their advice. Ferrell further states that he was not present with Fuller at the time the shots were fired, as testified to by a state witness.
It is to be noted that the affidavit of Ferrell does not state why Ferrell refused to appear as a witness for Fuller except upon advice of counsel. He does not claim, and has not claimed privilege against self-incrimination, nor any common law or statutory incompetency.
At the hearing on the motion for a new trial, one of the attorneys for Ferrell, Honorable George Rogers, testified in substance that he collaborated with the attorneys for Fuller in preparation of both the Fuller case and the Ferrell case; that during the Fuller trial, Ferrell was in the jurisdiction of the Jefferson County Circuit Court. It also appears that Mr. Beddow inquired of Mr. Rogers as follows:
"Mr. Deason: We object to that, if your Honor please.
"The Court: Overrule.
"The Court: You may answer the question.
Testimony of Ferrell's counsel shows that counsel intended not to allow him to testify, but the reason therefor is not stated, but the record is clear, however, that there was no subpoena issued by Fuller to require Ferrell to attend his trial, and Ferrell was not put on the witness stand in the Fuller case.
This question also appears to be one of first impression in this jurisdiction.
Counsel for appellant in brief make the following statement:
As to newly discovered evidence, we said in the case of Taylor v. State, 266 Ala. 618, 97 So. 2d 802, 804:
In other jurisdictions where this question has been presented, it has been treated, more or less, under the rules applying to newly discovered evidence, and appellant has asked us to so treat it here. We will do so.
Appellant cites several cases from the Criminal Court of Appeals of Texas. In disposing of the Texas cases, we quote with approval from the State v. Tappe, 53 S.D. 22, 219 N.W. 882, 883, where the South Dakota Court said:
There are several reasons why we must affirm the trial court in refusing to grant appellant a new trial on the affidavit of Arch Ferrell.
Undoubtedly, appellant and his counsel were thoroughly familiar with the evidence of Arch Ferrell, now claimed to have been unavailable to Fuller on his trial. At the time Fuller was tried, Ferrell was present in Jefferson County and subject to a subpoena as a witness for appellant. The mere statement of his attorney to the effect that he would not have let Ferrell testify for appellant if summonsed for that purpose is without merit. With all due deference to Ferrell's attorney, it was not for him to say that he would not let Ferrell testify. We do not mean to say that he could not have claimed the privilege for his client against self-incrimination, but he could not do so in this manner. Moreover, we have examined with care the affidavit of Ferrell and it contains, so far as we can say, nothing of a self-incriminatory nature whatever. In short, it is a mere denial that he saw the appellant on the night of *168 the homicide before Albert Patterson was killed. The facts stated in his affidavit are simply contradictory and a denial of facts stated by the witnesses for the prosecution. It is merely cumulative to this extent. Appellant's witnesses, if believed, proved a perfect alibi for the appellant. We cannot say that one more witness, the witness Ferrell, whose testimony would merely contradict the state witnesses, would have changed the result of appellant's trial.
We have often said that the granting of motion for a new trial on newly discovered evidence, and we interpolate the evidence claimed to be unavailable, rests in the sound discretion of the trial court. That principle is particularly applicable in this case. The learned trial court that presided at the trial of appellant, Fuller, also presided at the trial of Arch Ferrell for the same offense. The trial court was particularly positioned to determine the question of whether or not the alleged unavailable evidence would have probably changed the result of appellant's trial. He found that it would not. He was in a better position to determine this question than we are, and we will not reverse his finding on this question. Maund v. State, 254 Ala. 452, 48 So. 2d 553.
Appellant's Proposition of Law No. III
"The Court erred in denying appellant a new trial after conclusive proof was offered that rights secured to him under Title 62, Sections 209-213, inclusive, Code of 1940, had been violated."
The statutes set forth in Title 62, Sections 209-213, inclusive, of the Alabama Code of 1940, constitute part of what is commonly referred to as the "Jefferson County Secret Venire" law. The cited sections read as follows:
We quote from appellant's brief as follows:
The clerk further testified, in effect, that when he received the cards it became necessary to type the jury venire, and that he had no one immediately available to type the cards because of the congested condition in his office and the absence of his chief clerk on account of illness, who generally prepared the jury venire; that he asked Mr. Frazier if he could use his secretary to type the cards, and Mr. Frazier agreed for his secretary to type them, and the secretary agreed to type them at his direction; and that Mrs. Strozier's office is completely private; that Mrs. Strozier prepared the list under his supervision and direction as Circuit Clerk of the Tenth Judicial Circuit, and he was in and out of her office until the job was completed, and that she was warned of her duties and penalties involved.
Mrs. Strozier testified, in effect, that during the time she was typing the list no one other than Mr. Swift, the Clerk, came into the office, and that no one saw the *170 list, and that she did not divulge the name of any individual who appeared on the list to anyone, and that after she finished the work she returned it to Mr. Swift who was in her office when she completed it.
In Jenkins v. State, 245 Ala. 159, 16 So. 2d 314, this Court said:
We find no cases in this state directly in point on the question involved. In the analogous case of Williams v. State, 96 Tex.Cr.R. 144, 256 S.W. 601, 602, that court said:
In the first place, we do not think the statutes quoted above have been violated. It will be noted that the above-quoted statutes do not provide a method for making a list of the venire once it is drawn, and we must look to Sec. 39 of Title 30, Code of Alabama 1940, which provides:
It is, therefore, the duty of the clerk to prepare the venires. The italicized portions *171 of Sections 209 and 210, supra, clearly indicate that so long as the person actually typing the venire is working under the supervision, authority or direction of the clerk, the statutes have been complied with.
If circumstances make it impossible to perform his duty in this regard, because of the lack of help or because of sickness or otherwise, he is not impotent to secure the services of someone else to perform the services under his supervision. That is exactly what he did in this case because of the necessity.
In the second place, the undisputed evidence taken on the motion for a new trial was to the effect that defendant had suffered no injury whatever by the action of the clerk in securing the services of Mrs. Strozier for the purpose of copying the names of the veniremen. Rule 45, Code 1940, Tit. 7 Appendix.
Therefore, appellant's Proposition of Law No. III is without merit under the circumstances of this particular case.
Appellant's Proposition of Law No. IV
"A statement made by Special Assistant Attorney General, Cecil Deason, in his closing argument was so inflammatory and prejudicial that its injurious effect was ineradicable."
In his closing arguments to the jury, Mr. Deason made the following remarks:
Upon timely objection by the appellant, the trial court sustained the objection and of its own motion stated to the jury as follows:
We are thoroughly familiar, as is the Bench and Bar, with that line of decisions of this Court with respect to erroneous statements made by counsel in argument which are so inflammatory and prejudicial that the injurious effect is ineradicable.
Pretermitting the question as to whether or not the statement made by the Special Assistant Attorney General was beyond the bounds of forensic efforts, and, therefore, erroneous, we are clear to the conclusion, after a careful consideration of the statements made by the Special Assistant Attorney General, that they were not ineradicable, and that the charge of the trial court to the jury not to consider them was amply sufficient for that purpose and that no injury occurred to the appellant in this regard. See Burkett v. State, 215 Ala. 453, 111 So. 34; Burch v. State, 32 Ala.App. 529, 29 So. 2d 422; Elliott v. State, 19 Ala.App. 263, 97 So. 115; Bell v. State, 25 Ala.App. 441, 148 So. 751, certiorari denied 227 Ala. 44, 148 So. 752; Allen v. State, 33 Ala.App. 70, 30 So. 2d 479; Anderson v. State, 209 Ala. 36, 95 *172 So. 171; Washington v. State, 259 Ala. 104, 65 So. 2d 704; Birmingham Ry., Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80.
Appellant's Proposition of Law No. V
"The verdict of the jury was contrary to the preponderance or great weight of the evidence."
We have carefully examined the entire record and find that the evidence for the state was ample to support the verdict of the jury, whereas that for the defendant strongly negatived the fact of his guilt. The issue was thus plainly for the determination of the jury and this Court cannot sit as one of original trial and thereby supplant its findings. A multitude of cases could be cited in support of the proposition that where there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense. Ball v. State, 252 Ala. 686, 42 So. 2d 626, certiorari denied 339 U.S. 929, 70 S. Ct. 625, 94 L. Ed. 1350; Adams v. State, 29 Ala.App. 547, 198 So. 451; Davis v. State, 229 Ala. 674, 159 So. 209; Glover v. State, 25 Ala.App. 423, 148 So. 160, certiorari denied 226 Ala. 578, 148 So. 161; Freeman v. State, 21 Ala.App. 629, 111 So. 188; Skinner v. State, 22 Ala.App. 457, 116 So. 806; McKenzie v. State, 25 Ala.App. 586, 151 So. 619; 7 Ala.Dig., Criminal Law, (2, 3, 4), 11 Ala.Dig., Homicide, Brown v. State, 30 Ala.App. 5, 200 So. 637, certiorari denied 240 Ala. 648, 200 So. 640; Huston v. State, 237 Ala. 222, 186 So. 182; Smith v. State, 23 Ala.App. 488, 128 So. 358, certiorari denied 221 Ala. 217, 128 So. 359.
It is true that the evidence for the defendant, if believed by the jury, proved that this appellant could not have committed the offense for which he is charged. On the other hand, the jury had a right to believe the evidence introduced by the state. True, evidence was offered which tended to impeach some of the state witnesses, and on the other hand, evidence was offered tending to impeach some of defendant's witnesses. The jury and the trial court, in overruling appellant's motion for a new trial based on appellant's Proposition 5, were better positioned than we to determine that question. The trial court's action in overruling the motion for a new trial based on this ground carries great weight in this Court, and he will not be reversed unless his ruling was plainly and palpably wrong. We are not convinced that his ruling in this regard is so unjust as to work a reversal. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Dollar v. McKinney, 267 Ala. 627, 103 So. 2d 785; Mintz v. Millican, 266 Ala. 479, 97 So. 2d 769; State v. Carter, 267 Ala. 347, 101 So. 2d 550.
Appellant's Proposition of Law No. VI
"Evidence of statements made by deceased which are relied on to establish a motive for defendant to commit the crime with which he is charged is inadmissible in the absence of a showing that defendant had knowledge of the statements."
We quote further from appellant's brief:
On the other hand, the state contends that in order to show that defendant had a motive for killing Albert Patterson was the fact that the appellant, Albert Fuller, who was then the Chief Deputy Sheriff of Russell County, Alabama, was directly connected with the receiving of graft from gambling operations in Phenix City and Russell County, Alabama, and was also connected with other vice conditions wherein appellant received bribes. The state introduced evidence tending to prove that appellant had admitted the acceptance of bribes from the operators of illegal operations in Phenix City, and Russell County, Alabama.
The trial court allowed the state to introduce testimony showing a wide distribution of campaign statements made by Albert Patterson in his race for Attorney General. These statements consisted of public verbal statements made throughout the state, public billboard advertisements, public newspaper advertisements, public speeches over the radio and television and at public gatherings. The trial court allowed no private statements of Albert Patterson to be shown, but confined the state to the showing of statements of the deceased that were made repeatedly and were made publicly throughout the State of Alabama, including Phenix City and Russell County, Alabama, in the manner above indicated.
The crux of appellant's argument is that the state failed to show that the defendant had knowledge of these matters.
The state further contends that this alleged error is unavailing to the appellant for two reasons: First, that the defendant did have actual knowledge of the statements made by Albert Patterson, and second, that he interposed no objections to this line of testimony on the specific grounds that the defendant did not have knowledge of the statements, and asserts the same for the first time on appeal.
In the testimony of the defendant himself, it appears that he had known the deceased for some 10 or 15 years; that he was a Chief Deputy Sheriff of Russell County, Alabama, in which the City of Phenix City is located. Appellant stated that the deceased was a personal friend. He testified that he supported Albert Patterson in his campaign for Attorney General and that he was teased about it around the courthouse in Phenix City. Appellant stated that he solicited votes for Albert Patterson, even though his employer, the sheriff, supported Patterson's opponent. He testified that he went so far as to talk with John Patterson, the son of the deceased, on the day of the killing as to whether or not Albert Patterson was going to appoint Fuller as an investigator. He further testified that both Arch Ferrell, the Circuit Solicitor of Russell County, and Ralph Matthews, the Sheriff of Russell County, had criticized him for supporting Albert Patterson. His own testimony shows as a fact that he was directly interested in the campaign of Albert Patterson to the extent that he was soliciting votes, to the extent that he expected, or had solicited, a job, to the extent that he had been criticized by his employer, and that he was interested in the Attorney General's race. These facts, shown by the testimony in the record, together with the further testimony as to the wide publicity given to Albert Patterson's public campaign statements throughout the State of Alabama and in Phenix City, Alabama, where both *174 the deceased and appellant resided and had resided for many years, and the public notoriety attending these statements throughout the state, and particularly in Phenix City, make the conclusion inescapable that the appellant had full knowledge of the contents of Patterson's campaign pledges. The jury could well infer that the appellant was fully apprised of these statements and publications at the time of the killing. It is also significant that the appellant in his testimony did not deny that he had knowledge of the contents of the public statements.
It would tax judicial credulity to find from this record that the appellant was not fully aware of the campaign waged by the deceased for the office of Attorney General of the State of Alabama.
As to the state's second insistence that appellant opposed no objection to this line of testimony on the specific grounds that the defendant did not have knowledge of the statements and other matters set out above, we have examined the record and find that the appellant did not specifically object to the statements and the other evidence on the specific grounds that defendant did not have knowledge of it. The record discloses the following:
"Mr. Beddow: But do you want us to assign grounds of objection?
Thereafter, counsel for defendant assigned specific and additional grounds not including the grounds now urged on appeal.
In Adkins v. State, 20 Ala.App. 278, 101 So. 779, 780, the court refused to consider an objection under Circuit Court Rule 33, which reads as follows:
Circuit Court Rule 33, Title 7 Appendix, Code of Alabama 1940, was in force and effect at the time this case was tried.
In the case of Smith v. Bachus, 195 Ala. 8, 70 So. 261, 264, this Court stated:
To like effect are the following cases: Adkins v. State, supra; Harbin v. State, 15 Ala.App. 57, 72 So. 594; Alabama G. S. R. Co. v. Bailey, 112 Ala. 167, 20 So. 313; Jackson v. State, 35 Ala.App. 542, 50 So. 2d 282; Holcombe v. State, 17 Ala.App. 91, *175 82 So. 630; People v. Auerbach, 176 Mich. 23, 141 N.W. 869; Bettman v. United States, 6 Cir., 224 F. 819, 140 C.C.A. 265; Bentel v. United States, 2 Cir., 13 F.2d 327, certiorari denied Amos v. United States, 273 U.S. 713, 47 S. Ct. 109, 71 L. Ed. 854; People v. Dunbar Contracting Co., 215 N.Y. 416, 109 N.E. 554, affirming 165 App.Div. 59, 151 N.Y.S. 164; United States v. Hall, D.C., 206 F. 484; Thomas v. State, 11 Ala.App. 85, 65 So. 863.
In the instant case, the trial court properly admitted the evidence adverted to above.
Appellant's Proposition of Law No. VII
As a broad general rule in criminal prosecutions, evidence as to the guilt of the accused of other and distinct offenses unconnected with the one charged is not admissible as substantive evidence to prove the guilt of the offense charged. But as was said in the case of Hodge v. State, 199 Ala. 318, 74 So. 373, 374:
In the case of Harden v. State, 211 Ala. 656, 101 So. 442, 444, it was said:
See, also, Aplin v. State, 19 Ala.App. 604, 99 So. 734.
The evidence for the state tended to show that during his campaign for Attorney General, Albert Patterson had made statements and had distributed literature over the State of Alabama and in Phenix City, Russell County, Alabama, pledging to eradicate gambling and other vices in the state, and *176 particularly in Russell County and Phenix City, Alabama.
The evidence of Willie B. Painter was to the effect that defendant had made statements to a state investigator after Patterson had been killed that he had received money from slot machine operations in Russell County and had received or accepted bribes in connection with the operation of houses of prostitution.
Clearly, motive for the killing of Patterson to prevent him from carrying out campaign pledges is a proper inquiry in this case, and the commission of other crimes is admissible where it shows or tends to prove a motive for the homicide. There was no error in this regard.
Appellant's Proposition of Law No. VIII
"It is the inalienable right of an individual charged with crime to prove any fact touching the credibility of a witness testifying against him."
During the course of the cross-examination of state' witness, James Radius Taylor, the following question was propounded to the witness:
Thereupon, the following occurred:
"Mr. Deason: We object to that, if the Court please.
After the jury returned to the courtroom, the state renewed its objection to the evidence and the court sustained it.
The appellant in brief cites the following cases: State v. Poston, 199 Iowa 1073, 203 N.W. 257; State v. Brooks, 181 Iowa 874, 165 N.W. 194; People v. Evans, 72 Mich. 367, 40 N.W. 473; Rice v. State, 195 Wis. 181, 217 N.W. 697; Dawes v. State, 34 Okl. Cr. 225, 246 P. 482; People v. Wilson, 170 Mich. 669, 137 N.W. 92, 41 L.R.A.,N.S., 216.
We have examined those cases and are in accord with the general holding in so far as it pertains to rape and seduction cases where the prosecuting witness testifying is impeached by showing that she had made similar false charges against other men. Such testimony would tend to create some doubt in the minds of the jury where the very issue in the case on trial is her rape or seduction. The question as to the extent of cross-examination lies within the wide discretion of the trial court.
It was stated in the case of State v. Hougensen, 91 Utah 351, 64 P.2d 229, 238:
It seems that the trial court in this case followed the same procedure as outlined in the Utah case, and after hearing the purpose of the offer by the appellant, the learned trial court determined that the purported evidence attempted to be elicited from this witness in no way would have tended to show such a pattern of conduct on the part of the witness and was inadmissible for any purpose. We cannot say that he abused his discretion.
We find no reversible error in the record and the case is therefore affirmed.
All the Justices concur. | February 12, 1959 |
f75b067d-65e9-48cd-a30a-6430cb8ed73e | Madden v. State | 112 So. 2d 800 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 800 (1959)
Percy Lee MADDEN
v.
STATE.
8 Div. 988.
Supreme Court of Alabama.
May 28, 1959.
MacDonald Gallion, Atty. Gen., and Jas. Webb, Asst. Atty. Gen., for petitioner.
Howell T. Heflin, Tuscumbia, opposed.
SIMPSON, Justice.
Petition of the State for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Madden v. State, 112 So. 2d 796.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 28, 1959 |
8ab6ee62-709a-48f9-8e32-3e495fe31af9 | Cole v. Sylacauga Hospital Board | 113 So. 2d 200 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 200 (1959)
W. M. COLE et al.
v.
SYLACAUGA HOSPITAL BOARD.
7 Div. 428.
Supreme Court of Alabama.
March 12, 1959.
Rehearing Denied June 25, 1959.
*201 Guy Sparks, Anniston, for appellants.
Thos. Reuben Bell and McKay & Livingston, Sylacauga, for appellee.
MERRILL, Justice.
This appeal is from a decree granting a temporary injunction, at the request of the Sylacauga Hospital Board, enjoining the Sylacauga Civil Service Board from exercising any power or control over the Hospital Board, and from holding a civil service examination for the office of Administrator of the Sylacauga Hospital.
The Hospital Board filed its bill of complaint for a declaratory judgment and a temporary injunction. The bill charged that the local act creating the Civil Service Board, Act No. 428, Acts of Alabama 1951, p. 763, is unconstitutional in that it violates subdivision (18) of Sec. 104 and other sections of the Constitution of 1901, and that the Civil Service Act has been amended by Act 63, General Acts of 1957, listed in 1957 Supplement as Tit. 22, § 190(1), which permitted city hospitals to incorporate, and it alleged that the Sylacauga Hospital had become incorporated and was no longer under the city or the Civil Service Board. The Hospital Board, appellee, prayed for a temporary injunction and a declaration of rights and legal status of the parties.
No demurrer was filed, but the Civil Service Board filed an answer in which it affirmed its claim of right to hold the examination for the administrator of the hospital, denied the unconstitutionality of the Civil Service Act or that the hospital had been amended out of the act; and also sought a declaration that the Civil Service Law was constitutional and that the Civil Service Board had jurisdiction over the employees of the Hospital Board.
The law firm of McKay and Livingston, by C. W. McKay, Jr., appeared on the bill as solicitor for complainants. The respondents made a motion to require McKay to withdraw from the proceeding on the ground that he had represented the respondents in respect to the identical issues that are involved in this litigation. This motion was denied and dismissed after a hearing before Judge Sullivan. This particular appeal is concerned with the denial of the motion and the granting of the temporary injunction. We only reach the merits of the case to the extent of whether the bill has equity. Both sides to the controversy assert that there is a justiciable controversy, *202 and that the legal status of the Civil Service Board is in question and that there must be a declaration of rights, including the constitutionality of the Civil Service Act.
Appellants state in brief that this appeal is from the denial and dismissal of the motion to remove McKay and from the order granting the temporary injunction, and the record supports this statement. The action on the motion is not such an interlocutory decree as will support an appeal. Tit. 7, § 755, Code 1940. The order granting the temporary injunction will support an appeal. Tit. 7, § 1057, Code 1940.
We come now to question of the injunction. The only reason we need to decide whether there is equity in the bill is because of the injunction feature. A bill without equity will not support an injunction of any character under any circumstances. Kimbrough v. Hardison, 263 Ala. 132, 81 So. 2d 606, and cases there cited.
As already noted, the bill challenges the status of the Civil Service Board on two grounds, the first being that the local act creating the Civil Service Board is unconstitutional. The bill alleges that the act violates several sections of the Constitution, but the only section sufficiently argued in brief is subdivision (18) of Sec. 104. That question was decided adversely to appellees in State ex rel. Howard v. Cole, Ala., 110 So. 2d 273. The second ground was that the Civil Service Act had been amended by Act 63, Acts of Alabama 1957. We think this ground is sustained.
When the Civil Service Act was passed in 1951, the city hospital was being operated by the City of Sylacauga and Sec. 2 of the act provided that "the word `employee' as used herein shall mean all persons employed by the City of Sylacauga, * * * in all the departments of the city, and in the city hospital, * * *." But in 1957, the Legislature passed Act 63, Acts of Alabama 1957, p. 102, now listed in the 1957 Supplement as Tit. 22, § 190(1), and reading as follows:
The bill shows that the City of Sylacauga, pursuant to Act No. 63, passed an ordinance on August 5, 1958, establishing the Sylacauga Hospital Board and permitting it to become "a body corporate and politic" under the act, and on August 6, 1958, the Hospital Board became a body corporate, and these proceedings were filed in the office of the Secretary of State. It further alleges that "under the provisions of Title 22, Section 190(1) and Section 204(24) of the Code of Alabama, 1940, as amended, complainant has power, together with all powers incidental thereto or necessary to the discharge thereof in corporate form to maintain and operate a hospital and to do all things necessary to that end, to conduct *203 nurse's training schools, to appoint and employ such officers and agents, including attorneys, as the business of the corporation requires and to make rules and regulations for the conduct of any hospital owned or operated by it and to alter such rules and regulations; That under and in accordance with its corporate powers, complainant has the power to exercise and has exercised, charge, control and management of the property, affairs and funds of the Sylacauga Hospital;." Thus, it appears that the city has voluntarily elected to turn the operation of the hospital over to a separate corporation and that the employees of the Hospital Board are no longer employees of the city. This is further evidenced by the fact that full corporate powers are given the corporation under Sec. 204(24); and Sec. 204(25) provides, inter alia, that "* * * All debts created and securities issued by the corporation shall be solely and exclusively an obligation of the corporation and shall not create an obligation or debt of the State of Alabama or of any county or municipality. The faith and credit of the State of Alabama or of any county or municipality therein shall never be pledged for the payment of any debt incurred or securities issued by the corporation. * * *"
A case in point is Personnel Board of Mobile County v. City of Mobile, 264 Ala. 56, 84 So. 2d 365, 368. A county-wide civil service system had been established by local law. It also applied to certain municipalities in the county. Later, a general law with local application was passed to take the office of Chief of Police out of the system. We said:
Here, as there, certain conditions were prescribed on which the law would be operative and effective. The conditions were met by compliance with Act No. 63 (Tit. 22, § 190(1)).
This court discussed at length the constitutionality of an act permitting the incorporation of industrial development boards under the authority of municipalities of this state in Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175, 180. While the discussion was directed to Sec. 94 of the Constitution, there is a close analogy to the instant case. The opinion contains the following:
We conclude that since the Hospital Board became a separate entity from the *204 City of Sylacauga, the Civil Service law, by its terms, no longer applies to the employees of the Hospital Board. This conclusion means that the bill did contain equity and would support a temporary injunction.
It appears settled in this state that when a bill contains equity, an order granting a temporary injunction to preserve the status quo until a final hearing will be reversed only if the discretion of the trial judge is exercised arbitrarily or is abused. Berman v. Wreck-A-Pair Building Co., 234 Ala. 293, 175 So. 269; Madison Limestone Co. v. McDonald, 264 Ala. 295, 87 So. 2d 539. Appellants do not argue that the trial judge abused his discretion and we find no abuse or arbitrary exercise of that discretion, and the decree of the trial court is due to be affirmed.
We note in passing that even though the prayer of the bill asks service on the Attorney General, the record does not show such service required by Tit. 7, § 166, Code 1940. We call attention to the fact that since the unconstitutionality of a statute is alleged, the record must show service on the Attorney General before the lower court has jurisdiction to proceed to a declaration of rights. Wheeler v. Bullington, 264 Ala. 264, 87 So. 2d 27; Bond's Jewelry Co. v. City of Mobile, 266 Ala. 463, 97 So. 2d 582; Busch Jewelry Co. v. City of Bessemer, 266 Ala. 492, 98 So. 2d 50; Smith v. Lancaster, 267 Ala. 366, 102 So. 2d 1.
Affirmed.
All the Justices concur. | March 12, 1959 |
d5911b03-c048-4195-85ca-c4776a410e77 | McBride v. McBride | 109 So. 2d 718 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 718 (1959)
Russel F. McBRIDE
v.
Caroline Frasier McBRIDE.
6 Div. 281.
Supreme Court of Alabama.
February 19, 1959.
*719 Holt & Cooper, Birmingham, for appellant.
Parsons, Wheeler & Rose, Edw. L. Rose, Birmingham, for appellee.
STAKELY, Justice.
This is an appeal by Russel F. McBride (appellant) from a decree of the equity court granting the petition of Caroline Frasier McBride (appellee) to modify the final decree of divorce previously rendered by the court on December 6, 1955. In that final decree of divorce custody of the three children was awarded to Russel F. McBride.
Russel F. McBride and Caroline Frasier McBride were married to each other on June 13, 1942. They had three children, a son Russel F. McBride, Jr., and two daughters, Elizabeth Susan McBride and Frasier G. McBride.
In determining which parent in a divorce suit is entitled to the custody of the minor children each case must stand on its own peculiar facts. Sneed v. Sneed, 248 Ala. 88, 26 So. 2d 561; Gardiner v. Willis, 258 Ala. 647, 64 So. 2d 609. We have said that one pertinent inquiry in cases involving controversies between parties over the custody of children is which party was at fault in terminating the marriage relation. Piner v. Piner, 255 Ala. 104, 50 So. 2d 269. Evidently on this theory a good deal of evidence was introduced by the appellant tending to show that his former wife was at fault in terminating *720 the marriage relation. We do not think that any good purpose would be served at this time in setting out this testimony, showing the indiscretions of the appellee prior to the divorce. It should be conceded that her conduct played a major part in bringing about the dissolution of the marriage but at the same time, we point out that after such conduct the parties continued to live together as man and wife and the appellant was active in procuring the signature of his wife to letters and an answer and waiver, largely on the basis of which he procured the decree of divorce. We further note that on the day after the divorce, appellant and his present wife were married and moved to the State of Florida.
Of course the welfare of the child is the paramount consideration (Hawkins v. Hawkins, 219 Ala. 31, 121 So. 92; James v. James, 242 Ala. 140, 5 So.2d 616), and where a party seeks modification of the provisions of the divorce decree for the custody of the child, there must be alleged and shown some change of condition or other substantial reason for modification of the previous decree. White v. White, 247 Ala. 405, 24 So. 2d 763; Armstrong v. Green, 260 Ala. 39, 68 So. 2d 834; Casey v. Cobb, 266 Ala. 434, 96 So. 2d 753.
Generally where a child is of such tender age as to require the care and attention that the mother is specially fitted to bestow, the mother rather than the father is the proper custodian, unless for some reason she is unfit for the trust. Hawkins v. Hawkins, 219 Ala. 31, 121 So. 92; Hammac v. Hammac, 246 Ala. 111, 19 So. 2d 392. Tendencies of the evidence show that the two minor daughters, ages 9 and 10, are now living with their natural mother (appellee) in wholesome surroundings, attending school and Sunday School regularly, are active in Girl Scout work and are leading a happy life.
Subsequent to the decree of divorce Caroline McBride commenced a suit against Russel F. McBride in the equity court in which she alleged that the aforesaid divorce decree of December 6, 1955, had been obtained by fraud and sought to set aside that divorce decree. Shortly thereafter an agreement was entered into with Russel McBride in which she admitted that the suit had been brought without merit and this later suit was dismissed. In this agreement Russel McBride agreed for Caroline McBride (appellee) to have Elizabeth Susan McBride so long as she proved herself to be a fit mother. In the late spring of 1956 Caroline McBride wrote to Russel McBride and asked to have the youngest daughter Sis for the coming summer months and promised that if she came, she would send her back for school. This child also still remains with her mother.
The evidence shows that Caroline McBride is now gainfully employed at Blue Cross-Blue Shield at a salary of $180 per month. She has a comfortable home and is very devoted to the two children. While she was unemployed and inexperienced in business and in legal matters prior to the divorce, she is now a woman of 36 years of age and, as stated, is now steadily employed, maintains a good home for the children and has established a good reputation in the neighborhood in which she lives.
It is quite true that remarriage within itself of a party to a divorce is not such a material change of condition as to justify modification of an original decree awarding custody (White v. White, supra; Alexander v. Davis, 261 Ala. 654, 75 So. 2d 614), but the effect of a remarriage can certainly be shown along with other factors as a circumstance indicating a material change of condition since the divorce. Goldman v. Hicks, 241 Ala. 80, 1 So. 2d 18; 43 A.L.R.2d 366 et seq.; 27 C.J.S. Divorce § 317, p. 1192. If the custody of the two children should be awarded to *721 the appellant these two little girls would be in effect largely in the custody of a step-mother and the mother of the stepmother. We think it is obvious that it would be to the best interest of the children to be in the custody of their natural mother if she is fit to have that custody.
The evidence was heard orally before the trial judge where he had an opportunity to observe the witnesses while on the stand, noting their demeanor and actions. He concluded from all the evidence that the best interests of the two daughters would be for them to be with their natural mother rather than with the father under the changed conditions. In accordance with the rule which we have often expressed, we are not willing to say that the decree of the court is palpably wrong and, therefore, we will not disturb such decree.
Affirmed.
LAWSON, MERRILL and GOODWYN, JJ., concur. | February 19, 1959 |
144bea97-73cf-40b8-9a87-5a5b87d44b6a | Ex Parte National Association for Advancement of Colored People | 109 So. 2d 140 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 140 (1959)
Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE.
N. A. A. C. P.
v.
Walter B. JONES, Judge.
3 Div. 843.
Supreme Court of Alabama.
February 12, 1959.
Robt. L. Carter, New York City, Fred D. Gray, Montgomery, and Arthur D. Shores, Birmingham, for petitioner.
John Patterson, Atty. Gen., Edmon L. Rinehart and Jas. W. Webb, Asst. Attys. Gen., for respondent.
SIMPSON, Justice.
This is a petition to compel respondent, the Honorable Walter B. Jones, Judge of the 15th Judicial Circuit of Alabama, to recuse himself in a certain proceeding styled The State of Alabama, ex rel. John Patterson, as Attorney General of the State *141 of Alabama v. National Association for the Advancement of Colored People, a Corp., now pending in his court.
The respondent Judge waived issuance of the rule nisi, demurred to the petition and also filed an answer thereto. The petitioner thereafter filed a certain pleading purporting to be a replication to the respondent's answer. The case then stood at issue, which was August 19, 1958. To date the petitioner has failed to file with this Court brief and argument in support of said petition. Brief and argument should have been filed within thirty days from the date the case was at issue (Supreme Court Rule 12, Code 1940, Tit. 7 Appendix). The petition, therefore, will be ordered dismissed with a brief explanation.
Revised Rule of the Supreme Court 47 provides that in all appeals involving extraordinary or remedial writs, rules of the Supreme Court shall apply, unless the Court orders otherwise (263 Ala. XXII).
Supreme Court Rule 12 stipulates that: "Counsel for appellant shall file his brief with the clerk of this court within thirty days after the transcript of the record has been filed in this court. Upon failure to so file, the appeal shall be dismissed or the case affirmed, as the case may be". We have consistently followed this rule and have dismissed appeals where there has been a noncompliance. Phalen v. Fort, 266 Ala. 213, 95 So. 2d 401, and cases cited; Tipton v. Tipton, 267 Ala. 64, 100 So. 2d 14.
While this is not an appeal, we have treated such cases as if appeals and have applied Rule 12. The petition seeks to review the refusal of respondent to recuse himself, and the case is, and has long been, ready for submission. We are advised that the Clerk of the Court notified counsel for petitioner that brief and argument should be filed in accordance with the rule. As observed in Terry v. State, 264 Ala. 133, 85 So. 2d 449, 450, "This Court will not take submission in civil cases without a brief by appellant". Neither will this Court take submission of a case such as this without a brief in support of the petition seasonably filed. Having thus failed, the petition is subject to dismissal. So ordered.
Petition dismissed.
All the Justices concur. | February 12, 1959 |
7f1ba837-a768-4ade-8a42-ac2c2e8c27dc | State v. Howington | 109 So. 2d 676 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 676 (1959)
STATE of Alabama
v.
James Q. HOWINGTON.
3 Div. 852.
Supreme Court of Alabama.
February 19, 1959.
Robt. H. Jones, Sp. Asst. Atty. Gen., and J. B. Nix, Jr., Evergreen, for appellant.
Horne, Webb & Tucker, Atmore, and Edwin C. Page, Jr., Evergreen, for appellee.
GOODWYN, Justice.
This is a condemnation proceeding brought by the state pursuant to Code *677 1940, Tit. 19, Chap. 1, to acquire for public highway purposes (§ 14, Tit. 19) a right-of-way 300 feet wide across a 40-acre tract of land belonging to James Q. Howington, appellee, located in Conecuh County. The right-of-way is for use in the construction of a non-access highway as a part of the new interstate highway system. The proceeding originated in the probate court of Conecuh County. From an order of condemnation there made the state appealed to the circuit court of Conecuh County where a trial de novo (§ 17, Tit. 19) was had before a jury. The parties stipulated as to the regularity of the proceedings in the probate court and further stipulated that the sole issue to be submitted to the jury was the amount of damages and compensation, if any, to which the landowner was entitled as a result of the condemnation of his lands as a right-of-way for the non-access public highway. The jury returned a verdict fixing the amount of damages and compensation at $1,000. Judgment and an order of condemnation followed. The state filed a motion for a new trial, which was overruled. This appeal was then brought by the state pursuant to Code 1940, Tit. 19, § 23.
There are 17 assignments of error. All of them charge error in the trial court's rulings on the admission of evidence. None of the assignments specifically questions the excessiveness of the jury's award.
Assignments 1, 2, 4, 5 and 6 charge error in overruling the state's objections to questions to three of its witnesses (appraisers) on cross-examination, asking how much said witnesses were being paid per day for appearing in court as witnesses for the state. The state recognizes the rule that "it is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony." Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 612, 64 So. 2d 594, 598. It is contended, however, that the questions, being asked a number of times, constituted "a direct appeal to the emotions and prejudices of the jury" and were "highly detrimental to the plaintiff's cause in this case and that said questions should have been confined to whether or not they were employed by the plaintiff in this case and not permitted to go into the details of how much they were being paid." We are unable to agree. As stated in the Decatur Land Co. case, supra, 258 Ala. at page 612, 64 So.2d at page 598:
Also, it is a well-established rule that the latitude and extent of cross-examination is a matter which of necessity rests largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse. Housing Authority of City of Decatur v. Decatur Land Co., supra. It has been held that the cross-examination of a witness may even pertain to irrelevant and immaterial matters as bearing on the memory, accuracy, credibility, interest or sincerity of the witness. Nelson v. Johnson, 264 Ala. 422, 427, 88 So. 2d 358; Housing Authority of City of Decatur v. Decatur Land Co., supra.
We do not think there was an abuse of discretion by the trial court in allowing the cross-examination of the state's witnesses.
As to all of the other assignments of error, the record discloses that in each instance there was either an "objection" to the evidence, without any ground being assigned, or an objection on the general grounds that the proffered evidence was "illegal, irrelevant and immaterial." The *678 rule is that if only a general objection is interposed, or only general grounds are assigned in support of an objection, no error results in overruling such objection unless the evidence is patently illegal and cannot be made legal for any purpose. Circuit Court Rule 33, Code 1940, Title 7 Appendix; Housing Authority of the City of Decatur v. Decatur Land Co., supra; W. T. Rawleigh Co. v. Haynie, 231 Ala. 246, 247, 164 So. 101; Bennett v. Bennett, 224 Ala. 335, 339, 140 So. 378; Sanders v. Knox, 57 Ala. 80, 83-84. In the last cited case, in an opinion by Brickell, C. J., it is stated as follows:
We find no reversible error in the rulings complained of.
The judgment is due to be affirmed.
Affirmed.
SIMPSON, STAKELY, MERRILL and COLEMAN, JJ., concur. | February 19, 1959 |
8b6b8bcf-750f-498c-83ec-c8c999115c01 | DUDLEY BROTHERS LUMBER COMPANY v. Long | 109 So. 2d 684 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 684 (1959)
DUDLEY BROTHERS LUMBER COMPANY
v.
H. A. LONG, d/b/a Long Plumbing and Electric Company.
4 Div. 986.
Supreme Court of Alabama.
February 19, 1959.
*685 Paul J. Miller, Jr., Phenix City, for appellant.
J. C. Perdue, Jr., Cornett & Perdue, Phenix City, for appellee.
LAWSON, Justice.
This suit was brought in the Circuit Court of Russell County by H. A. Long, doing business as Long Plumbing and Electric Company, against Dudley Brothers Lumber Company. The complaint contained two counts, each claiming $682.50, together with a materialman's lien against separate parcels of land.
The jury returned a verdict in favor of plaintiff in the sum of $1,000 plus interest. There was a judgment for the plaintiff and against the defendant in the sum of $1,090. From that judgment the defendant appealed to the Court of Appeals, in which court the cause was submitted on November 6, 1958. On January 26, 1959, the case was transferred to this court.
In the brief filed here on behalf of appellant no attempt has been made to relate the argument contained in the brief to any of the assignments of error. The argument as we understand it purports to cover all of the assignments of error in bulk.
The appellate courts of this state have written on several occasions to the requirements of briefs in civil cases necessary to invite our review. See Snellings v. Jones, 33 Ala.App. 301, 33 So. 2d 371; Christ v. Spizman, 33 Ala.App. 586, 35 So. 2d 568.
It is to be noted that Supreme Court Rule 9, Code 1940, Tit. 7 Appendix, "Appellant's Brief; How Prepared," requires, among other things:
As stated in New York Life Ins. Co. v. Mason, 236 Ala. 44, 180 So. 775, this rule was designed to enable the court to determine from the briefs themselves whether there was error below. Merely listing the numbers of the assignments of error, without more, as was done in the brief now being considered, affords no basis for an understanding of the issues and alleged errors involved. Where a brief does not direct the attention of the court to what is deemed error, an appellate court is not required to search the record and cast about for errors not clearly specified in the brief. Morton v. Clark, 10 Ala.App. 439, 65 So. 408.
It is clear that actually no assignments of error can be deemed to have been specified in appellant's brief by merely listing sixteen numbers.
Be that as it may, assignments of error 3 and 4, as they appear in the record, relate to alleged errors in the court's oral instructions. Portions of appellant's bulk argument relate to these alleged erroneous instructions.
A reading of the record discloses that no exceptions were reserved to the court's instructions. There is nothing, therefore, before us to review in this record. Casino Restaurant v. McWhorter, 35 Ala.App. 332, 46 So. 2d 582; Pierce v. Floyd, 38 Ala.App. 439, 86 So. 2d 658; Lackey v. Lackey, 262 Ala. 45, 76 So. 2d 761; Self v. Baker, 266 Ala. 572, 98 So. 2d 10. These assignments are therefore without merit, even had they been properly specified in the brief.
Other assignments of error which are argued in bulk are to the effect that the trial court erred in failing to exclude the plaintiff's testimony after he had rested his case. These assignments are likewise without merit. The rule in respect to a motion by the defendant to exclude all of the plaintiff's evidence in a civil case is that the trial court will not be put in error for refusing the motion, nor will it be put in error for granting it if the evidence does not make out a prima facie case. Mt. Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710; Johnson v. Shook & Fletcher Supply Co., 245 Ala. 123, 16 So. 2d 406; Carter v. City of Gadsden, 264 Ala. 544, 88 So. 2d 689.
Other assignments of error which are argued in bulk are those similar to Assignment of Error 11, which reads: "The Court is in error in that the verdict of the Jury and the Court is contrary to the law and the evidence in the case." Such assignments of error present nothing for review. They do not allege error for failure to grant the motion for a new trial, nor do they allege error by the trial court in any respect. This court has repeatedly held that only adverse rulings of the trial court are subject to assignment of error on appeal from a judgment in a civil case based on a jury verdict. Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553, and cases cited.
The argument being in bulk, and it being clear that the above-mentioned assignments are without merit, consideration of the other attempted assignments is pretermitted. Emergency Aid Life Ass'n v. Gamble, 34 Ala.App. 377, 40 So. 2d 887; Milwaukee Mechanics Ins. Co. v. Maples, 37 Ala.App. 74, 66 So. 2d 159; Wyatt v. City of Birmingham, 37 Ala.App. 579, 72 So. 2d 735.
In view of the above discussion, it is our opinion that this judgment is due to be affirmed and it is so ordered.
Affirmed.
STAKELY, GOODWYN and MERRILL, JJ., concur. | February 19, 1959 |
2d53bdc3-e0bb-4f47-9526-ebb4a35be304 | Bailey v. Smith | 107 So. 2d 868 | N/A | Alabama | Alabama Supreme Court | 107 So. 2d 868 (1959)
Lou S. BAILEY, as Executrix, et al.
v.
Carl M. SMITH.
6 Div. 241.
Supreme Court of Alabama.
January 8, 1959.
*870 Chas. W. Greer, Birmingham, for appellants.
Whitmire, Morton & Coleman, Birmingham, for appellee.
STAKELY, Justice.
This litigation grows out of a written contract executed on June 30, 1952, by Carl M. Smith (appellee) and R. A. Bailey, who is now deceased. R. A. Bailey died testate, leaving his estate to his widow, Lou S. Bailey, for life with a remainder to Lynn Bailey, the only child of the deceased, and appointing Lou S. Bailey (appellant), as executrix of the will.
Suit for a declaratory judgment and other relief was brought by Carl M. Smith in the Circuit Court of Jefferson County, in Equity, against Lou S. Bailey, individually and as executrix of the will of R. A. Bailey, deceased, and against Lynn Bailey. The Leeds Telephone Company is also made a party respondent, but no relief is asked against it and it has filed no pleadings in the case.
The court rendered a decree overruling the demurrer of Lou S. Bailey individually and as executrix of the will of R. A. Bailey, deceased, and also overruling the demurrer of Lou S. Bailey as guardian of Lynn Bailey, a minor, who has joined in this appeal. The appeal here is from the aforesaid decree.
The allegations of the bill show in substance the following. For some time prior to August 28, 1951, Carl M. Smith and R. A. Bailey engaged as partners in the ownership and operation of a telephone business and telephone exchange at Leeds, Alabama. On August 28, 1951, Carl M. Smith together with R. A. Bailey and his wife, Lou S. Bailey, Eleanor M. Smith, the wife of Carl M. Smith, and Bill Dorrough became the incorporators of the Leeds Telephone Company, Inc., a public service corporation, under articles of incorporation filed in the office of the Probate Judge of Jefferson County, Alabama.
*871 Under the certificate of incorporation Leeds Telephone Company, Inc., had an authorized capital stock of $100,000, divided into 1,000 shares with a par value of $100 each, of which 680 shares were subscribed and issued on incorporation, as follows: Carl M. Smith 334 shares; R. A. Bailey 334 shares; Lou S. Bailey 1 share; Eleanor M. Smith 1 share; Bill Dorrough 10 shares, total 680 shares.
Carl M. Smith and R. A. Bailey discharged their respective subscriptions for said shares by transferring and conveying to the corporation all the property, real and personal, owned by them as partners in and about carrying on the aforesaid telephone business. After incorporation the telephone business formerly owned and conducted by Carl M. Smith and R. A. Bailey, was carried on by the Leeds Telephone Company, Inc. The corporation was so engaged on the date of the filing of complainant's original bill.
From the creation of the corporation to the death of R. A. Bailey, Carl M. Smith and R. A. Bailey each continued to own in their respective names 334 shares of capital stock of the corporation and together had active charge of the management of the affairs and business of the corporation. By virtue of the ownership of their shares of stock Carl M. Smith and R. A. Bailey had voting control in the management of the affairs of the corporation.
On June 30, 1952, Carl M. Smith and R. A. Bailey entered into a written agreement providing in substance that in the event one of them should elect to sell his shares of stock in the corporation, the other should have the option to purchase the same, and also that on the death of one of them the survivor should have the right to purchase from the estate of the one deceased, sufficient shares of the stock of the corporation to acquire voting control of the corporation.
The instant controversy grows out of the disputed rights of Carl M. Smith under said agreement to purchase from the estate of R. A. Bailey, deceased, sufficient shares of the stock of the corporation owned by R. A. Bailey at the time of his death, which, when added to the shares owned by Carl M. Smith would give Carl M. Smith voting control of the corporation. This agreement is marked Exhibit A to the bill of complaint and made a part thereof. It will appear in the report of the case.
The allegations of the bill further show that the will of R. A. Bailey, deceased, was probated in the Probate Court of Jefferson County, Alabama, on January 8, 1957. Letters testamentary were granted to his widow, Lou S. Bailey, on January 8, 1957. The widow and Lynn Bailey are the only heirs at law and distributees of the testator. Together they constitute all of the beneficiaries under the aforesaid will. A copy of the will of R. A. Bailey, deceased, is also attached to the bill of complaint in this cause and made a part thereof. The will was made on July 1, 1950. It made no reference to the agreement in question as it was made two years prior to the date of the agreement. The testator bequeathed his property as follows:
The allegations of the bill further show that prior to the death of R. A. Bailey eleven additional shares of the authorized capital stock of the corporation, which were authorized but not issued at the time the corporation was created, were issued, so that at the time of the death of R. A. Bailey 691 shares of the capital stock of the corporation had been issued. At the time of the death of R. A. Bailey he owned *872 334 shares of said capital stock and Carl M. Smith owned 334 shares. The allegations of the bill further show that during the lifetime of R. A. Bailey the corporation issued 386 shares of nonvoting preferred stock. When R. A. Bailey died and on the date of the filing of the bill in this cause, said 691 shares of capital stock constituted all the voting stock of the corporation.
The bill of complaint further shows that within 30 days after the grant of letters testamentary to Lou S. Bailey upon the estate of R. A. Bailey, deceased, Carl M. Smith offered to purchase from the estate of decedent twelve shares of the capital stock owned by decedent when he died. It is further alleged that twelve shares of stock owned by decedent when added to complainant's 334 shares, making a total of 346 shares, would give complainant "voting control" of the corporation. It is further alleged that the price which complainant offered to pay the executrix for said twelve shares of stock, was determined in keeping with the agreement. The executrix refused to accept the purchase price and endorse and deliver the shares of stock to Carl M. Smith.
I. Under § 167, Title 7, appearing in the 1955 Cumulative Pocket Part of the Code of 1940, we are admonished to give the declaratory judgment act a liberal construction, the statute declaring that the purpose of the declaratory judgment act is to settle and afford relief from uncertainty with respect to rights, status and other legal relations. Wolff v. Woodruff, 258 Ala. 1, 61 So. 2d 69; Dozier v. Troy Drive In Theatres, Inc., 258 Ala. 417, 63 So. 2d 368. In Anderson on Declaratory Judgments, Vol. II, p. 1304, it is said: "The courts will take jurisdiction by resort to declaratory procedure and determine the meaning of the contract and the rights and liabilities of the parties."
We have in the instant case a situation where there is an actual controversy between the complainant Carl M. Smith and the respondent Lou S. Bailey, as executrix of the will of R. A. Bailey, deceased, as to the rights of the complainant under the terms and provisions of the aforesaid agreement, marked Exhibit A to this bill, to purchase from the estate of the decedent certain stock of the corporation known as the Leeds Telephone Company, Inc., and as to the duty and obligation of the said executrix to accept the purchase price therefor and to endorse and deliver the shares of stock so purchased to the complainant. We, therefore, think that the court was correct in overruling the demurrer taking the point that the bill showed no justiciable controversy under the declaratory judgment act. Madison Limestone Co. v. McDonald, 264 Ala. 295, 87 So. 2d 539.
II. We furthermore think that the court was correct in holding that the bill shows that the complainant is entitled to the relief of specific performance. Boozer v. Blake, 245 Ala. 389, 17 So. 2d 152. Such relief is expressly provided for in § 163, Title 7, Code of 1940, where the bill shows a justiciable controversy which should be settled. Dozier v. Troy Drive In Theatres, Inc., 258 Ala. 417, 63 So. 2d 368. We know of no reason why the executrix in her representative capacity is not bound by the contract made by the decedent. 33 C.J.S. Executors And Administrators § 189, p. 1168.
III. It is argued that there is no way under the allegations of the bill to interpret the meaning of the term "voting control" as used in Paragraph One of the contract. We do not agree. Under the Alabama statute each share of stock in a corporation carries with it the power of one vote, except where it is provided to the contrary. § 38, Title 10, Code of 1940; Western Grain Company Cases, 264 Ala. 145, 85 So. 2d 395. Allegations of the bill show that the preferred stock has no voting power. § 39, Title 10, Code of 1940. *873 Accordingly, ownership of a majority of the common stock of the Leeds Telephone Company carries with it the voting control of the corporation.
IV. There is no merit in the contention that the term "book value" as used in the contract cannot be given a meaning because of its uncertainty and ambiguity. On this demurrer at least, book value as set out in the contract will be given its ordinary meaning, which is the net worth of all corporate assets less all corporate liabilities. 5 Words & Phrases, Book Value, p. 693, and Cumulative Annual Pocket Part; 33 A.L.R. 366; 51 A.L.R.2d p. 610. In this connection, we think that when the sentence "In determining book value any insurance on the life of the deceased stockholder owned by and payable to the company and which is reasonably certain to be collected shall be taken into consideration," is read in its context, it shows that such insurance is to be taken into account as an asset on the books of the company when arriving at the book value of the stock whether the proceeds of the insurance have or have not been collected, provided the insurance is reasonably certain to be collected.
V. It is argued that since there is no ambiguity or uncertainty in the will of R. A. Bailey, deceased, there is no room for construction of this will. No need for construction because of ambiguity is alleged in the bill but the bill does pray for a construction of the will. However, the mere fact that the bill may pray for unwarranted relief does not make the bill demurrable, where the allegations of fact make a case for equitable relief and the bill contains a proper prayer. United Steel Workers Union A.F.L.-C.I.O. v. Manley, 267 Ala. 452, 104 So. 2d 306; Creson v. Main, 260 Ala. 318, 70 So. 2d 417. The court accordingly will not be put in error for overruling the demurrer to this aspect of the bill.
We conclude that the court was correct in overruling the demurrers to the bill as a whole and to each and every aspect thereof.
Affirmed.
LAWSON, GOODWYN and MERRILL, JJ., concur. | January 8, 1959 |
2ea49e9a-23fc-4ac9-8645-ff9a39cab06d | Stewart v. Childress | 111 So. 2d 8 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 8 (1959)
Willie James STEWART et al.
v.
Horace CHILDRESS.
5 Div. 694.
Supreme Court of Alabama.
April 9, 1959.
*10 Robt. L. Bowers, Gerald & Bowers, Clanton, for appellants.
Speaks & Burnett, Clanton, for appellee.
SIMPSON, Justice.
This appeal is taken from a final decree which overruled complainants' demurrer and exceptions to respondent's cross-bill and answer respectively, denied relief for which complainants had prayed in their bill to quiet title, granted to the respondent the relief prayed for in his answer and cross-bill, decreed that the complainants have no right, title, or interest in the subject property, and quieted respondent's title in and to said property. In the decree it was further ordered that the respondent have and recover possession of the tract of land known as Parcel Number Two.
By agreement of the parties to this litigation, and pursuant to an order of the lower court, an ejectment suit seeking to recover possession of a tract of 77 acres of the subject property, filed by the respondent on February 25, 1957, wherein the defendant was one of the complainants in the present proceeding, was transferred to the equity side of the court and consolidated with a statutory bill to quiet title to the remaining 80 acre tract of the subject property, wherein the respondent was the plaintiff in the ejectment suit. Thus the title to both parcels of property was tried and quieted together in the equity court.
Complainant's bill called upon the respondent Horace Childress to set forth and specify his title, claim, interest, or incumbrance upon the property claimed by complainants, and how and by what instrument the same was derived and created, following the mandate of Section 1110 of Title 7, Code 1940. Respondent's answer responded to this particular paragraph of the bill in the following manner:
Appellant has provided us with an ingenious argument, contending in essence that the part of the answer set out above was insufficient for failing to specifically avow the character and source of the respondent's title. His rationale is based in part on Section 1111 of Title 7, Code 1940, and on rules enunciated in such cases as Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480; Reeder v. Cox, 218 Ala. 182, 118 So. 338; Adams v. Pollak, 217 Ala. 688, 117 So. 299; Rucker v. Jackson, 180 Ala. 109, 60 So. 139, and Kinney v. Steiner Brothers, 149 Ala. 104, 43 So. 25. On the other hand, there is the case of Rushton v. McLaughlin, 213 Ala. 380, 104 So. 824, which holds that an answer denying each allegation of the bill and demanding strict proof thereof is sufficient and puts in issue complainants' title. If there perchance exists any conflict in the statement appearing in the Rushton case and the authorities advanced by the appellant, it is not necessary to here attempt to reconcile it, as the status of the pleadings in the instant case do not require application of any of the rules contended for.
In complainants' amended bill filed subsequently to the respondent's answer it is averred as follows:
And a written stipulation by counsel for both sides, agreed to and filed in the cause and recited in the note of testimony as follows:
It would be unduly hypertechnical for us to say now, in view of the allegation *12 in appellants' amended bill and the stipulation, that respondent's answer was deficient in specifying the character and source of his title. We believe that the record thus shows that the appellants were sufficiently informed as to the nature of appellee's claim of title.
There is likewise no merit in appellants' contention that the purchaser at the foreclosure sale, S. M. Pate, acquired no right or title by said deeds because the mortgagor, Monroe Stewart, was deceased at the time the deeds were executed.
Appellants rested their claim of title to the subject tracts on the theory of adverse possession for the requisite period under a claim of title by descent cast. It is true, as pointed out by appellants, that under a statutory bill to quiet title, where it is shown that complainant is in the peaceful possession of the land, either actual or constructive, at the time of the filing of the bill and that there was no suit pending to test the validity of the title, a prima facie case is made out, entitling the complainants to relief, and the burden is then upon the respondent to establish his claim to the land. Vidmer v. Lloyd, supra; Smith v. Irvington Land Co., 190 Ala. 455, 67 So. 250; Burkett v. Newell, 212 Ala. 183, 101 So. 836. But when the respondent shows legal title to the land, the burden of avoiding it by showing superior title by adverse possession shifts to the complainant. St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 108 So. 858, and see Behan v. Friedman, 218 Ala. 513, 119 So. 20. Furthermore, it is well settled that in a proceeding under the statute, "if the averments of the bill and answer conform to the requirements of the statute, the issues involve everything necessary to a determination by the court as to whether the complainant or the defendant has the superior title to the property, and it is proper for the court under the issues thus found to determine in which of the parties the title resides." Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217, 220; Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194; Reeder v. Cox, supra; Adler v. Sullivan, 115 Ala. 582, 22 So. 87.
The merits of appellants' claim of adverse possession were, therefore, put to issue by appellee's showing of good paper title and his categorical denial in the answer to the bill of complaint as last amended of each and every allegation thereof, including those setting up adverse possession. The allegations of adverse possession were not admitted by such a denial, as appellants contend is the case by applying Equity Rule 25, Appendix, Title 7, Code 1940. Facts relative to the matter of adverse possession would be within the peculiar knowledge of the appellants, not the appellee.
In the last analysis, the case is reduced to a question of factare all the required elements of title by adverse possession present? Appellee says that the evidence shows that the possession of appellants was permissive, that is, that S. M. Pate, who had bought the mortgage, allowed the appellants to remain on the land with the idea that they would at some time buy the property back from him. But appellants reply with the argument that such a theory of permissive use to negate the adverse possession should have been specially pleaded by the appellee and that in the absence of such a plea, evidence relative to permissiveness of the use of the land by appellants has no effect. We are in disagreement with such a theory. We quote the applicable rule from the case of Dothard v. Denson, 72 Ala. 541:
This principle was reaffirmed in White v. Williams, 260 Ala. 182, 69 So. 2d 847. This last cited case also gave expression to the principle that a permissive possession does not ripen into title unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim. In further illucidating the principle it was also held: Limitations begin to run from the date of notice of hostility but are not operative before hostility is shown, and whether the possession was with the intention of claiming title is generally held to be a question of fact; a permissive occupant cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter's knowledge; there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile.
This Court has repeatedly held that where one claims title to land through an unbroken chain of record title against another who relies upon adverse possession under color of title, a very strict burden to establish his title rests upon the one claiming adverse possession. Hagan v. Crowley, 265 Ala. 291, 90 So. 2d 760; Spradling v. May, 259 Ala. 10, 65 So. 2d 494; Duke v. Harden, 259 Ala. 398, 66 So. 2d 899. We said in Spradling v. May, supra [259 Ala. 10, 65 So.2d 498]:
See also Walthall v. Yohn, 252 Ala. 262, 40 So. 2d 705; Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882.
Neither was it necessary for appellee to plead that he was a bona fide purchaser without notice of the purported adverse possession. It is true that the general rule is that one who would assert that he is an innocent purchaser without notice must so aver in his pleading, and this rule applies to a respondent in a proceeding under the statute to quiet title. Reeder v. Cox, supra. Cf. Behan v. Friedman, supra. It would seem that it would beg the question here to require appellee to do so when adverse possession, vel non, is at issue in the case. One should not be required to plead bona fide purchase without notice of adverse possession at the same time he is denying the adverseness of such possession. It is clear that appellee does not come under the classification of "one who would assert that he is an innocent purchaser".
We do not think appellants sustained their burden of establishing title by adverse possession. The testimony taken orally before the court below was in conflict, and, having considered it very carefully, we must say that the trial judge was authorized to conclude from the evidence adduced that the possession of appellants was permissive and that there had not been such a repudiation of the permissive possession as to afford notice of an *14 adverse claim. The fact that respondent offered to purchase the property in question in 1955 from appellants was only one fact among others which raised opposing inferences to be finally resolved by the decree of the trial judge who heard the witnesses testify and whose conclusion has the force and effect of a jury verdict. According the usual presumption of correctness to the conclusion attained by him, we would not be warranted in disturbing his finding. Parrish v. Davis, 265 Ala. 522, 92 So. 2d 897; Spradling v. May, supra; Sieben v. Torrey, 252 Ala. 675, 42 So. 2d 621; Cook v. Benton, 250 Ala. 259, 33 So. 2d 877.
Appellants apparently place significance to a statement made by counsel for appellee during the taking of testimony from Willie Stewart on direct examination. The witness had been asked about some discussions he had had with the respondent concerning the subject property when the following question was posed:
And in the ensuing colloquy counsel for appellee said, "we will stipulate that Munn Steward (sic) [tenant in common with appellants] owned these lands". In the absence of a showing in the record that the lands referred to were the same as the subject parcels, we must presume the obviousthat the counsel for appellee was speaking of some other land adjoining and that he did not admit a fact inconsistent with appellee's primary position. We must also presume that this statement was noticed by the lower court and was given due consideration along with the testimony in arriving at his conclusion.
Since the case is due to be affirmed, we do not reach the matters of accounting, discovery, and other affirmative relief for which prayer was made in appellants' bill.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 9, 1959 |
1ea34f27-c18c-4a21-bfd9-930821c1cf53 | Alabama Farm Bureau Mutual Cas. Ins. Co. v. Robinson | 113 So. 2d 140 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 140 (1959)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., Inc.,
v.
Gilbert H. ROBINSON.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., Inc.,
v.
Joseph B. HOLT.
8 Div. 853, 854.
Supreme Court of Alabama.
February 19, 1959.
Rehearing Denied June 25, 1959.
McDonnell & Jones, Sheffield, for appellant.
Mitchell & Poellnitz and Bradshaw, Barnett & Haltom, Florence, for appellees.
GOODWYN, Justice.
These are two separate and distinct suits brought by two different plaintiffs (appellees) against the same defendant (appellant) on an automobile liability insurance policy. By agreement, both cases were tried together in the lower court and submitted here on one record.
The complaint in each case alleges, in substance, the following: That plaintiff recovered a judgment in the circuit court of Lauderdale County against one Chester Dallas Balch for damages suffered by plaintiff in a collision between an automobile in which plaintiff was riding and an automobile driven by Balch; that plaintiff has been *141 unable to collect said judgment; that execution thereon has been returned by the sheriff "no property found"; that the automobile driven by Balch at the time of the accident was owned by one Armand J. Cole; that the automobile was covered by a policy of liability insurance issued by the defendant insurance company to Cole; that said policy contained what is known as an "omnibus clause", insuring not only Cole but also any person actually using the automobile with Cole's permission; that, while said policy was in force and effect, plaintiff was injured in the aforesaid collision; that Balch was driving the automobile with Cole's permission; that no appeal has been taken from the judgment against Balch and the time for appeal therefrom has expired; that the suit is brought against the defendant insurance company to recover the amount of said judgment, together with the costs assessed against Balch in said suit. The "omnibus clause", upon which plaintiffs rely for recovery, is as follows:
The jury returned a verdict in favor of the plaintiff in each case and judgments on said verdicts were duly rendered. The defendant's motion for a new trial being overruled in each case, it brought these appeals.
The ultimate and decisive question presented is whether the evidence supports a finding that Balch's use of the automobile at the time and place of the accident was with Cole's permission.
In view of the trial court's denial of defendant's motions for new trials, our consideration of the evidence and its tendencies should be in the light most favorable to appellees. Accordingly, we quote at length the statement of the facts as contained in appellees' brief, viz.:
"The evidence tends to show that Balch and Cole met by prearrangement at McKee's Store in Rogersville, Alabama, in the early morning of March 5, 1952, before 8:00 A.M., for the purpose of going together to the Reynolds Metals plant in Colbert County, Alabama in Cole's automobile to hunt for jobs. The two men were about the same age and attended the same class in the Veterans school in Rogersville which met five days per week from 3:30 P.M. to 9:00 P.M. with twenty minutes for supper break. They had known each other for several years, were friends, ran around together prior to the date of the accident, were together a lot, and frequently had their evening meal in company with each other and with other students in the school. Cole, a resident of Lexington, Alabama, enrolled in the Veterans School on July 25, 1951, while Balch, who lived just outside Rogersville, enrolled on February 1, 1952. Both Lexington and Rogersville, as well as Anderson which is to be later mentioned, are small rural towns in the east end of Lauderdale County, all situated fairly close together.
"After meeting at McKee's Store, Balch left, telling Cole he was going to the bank to borrow some money, and soon returned saying that he had got it. Cole did not have much money, if any, at the time. Hubert McKee, part owner of McKee's Store who also attended the same Veterans class with Balch and Cole, was present in the store and upon learning that the two men planned to go to Sheffield gave them some money and they agreed to bring him back two or three pints of `state' whiskey. Balch and Cole then departed, the hour being some few minutes after 8:00 A.M.
"The two men traveled from Rogersville down Lee Highway towards Florence to the Wilson Dam Road, cut across the dam and on to the Reynolds plant in Colbert County Cole drove the automobile on this part of *142 the trip. There they sought and obtained an interview concerning their quest for employment. At some time after their arrival at the plant and while still there Balch and Cole agreed that Balch would spend the night with Cole in Cole's home in Lexington and that the two of them would return to the plant together the next morning.
"The tendencies of the evidence show that Balch and Cole left the Reynolds plant shortly before noon with Balch driving the Cole automobile. Piecing the testimony together concerning what the two men then did, (although there is sharp conflict) it can be inferred that they drove to the ABC store in Sheffield and there purchased the two or three pints of whiskey which they had agreed to get for their classmate, Hubert McKee, and also obtained some whiskey for themselves. In any event the two obtained some `state' whiskey after their departure from the Reynolds plant and both drank heavily between that time and the time they returned to Rogersville late that afternoon, taking turns about driving. It was clear from Cole's testimony that he and his friend, Balch, had ample access to obtaining intoxicating beverages during the course of their path of travel from Reynolds to Florence although he denied that he or Balch bought or drank any whiskey or beer at all until they got back to Rogersville about suppertime.
"In some manner which Cole could only vaguely recall on the stand he and Balch killed about five hours from the time of their departure from the Reynolds plant in Colbert County until they left Florence around 5:00 P.M. on their way back to Rogersville. Cole did remember that the two of them were in Florence that afternoon but could not tell the court or jury what time they arrived in Florence, or what time they left. He was able to recall that they stopped at Griffin's car lot in Florence behind a poolroom, and just stood around and talked; he could not remember how long he stayed at the car lot, but thought that he then went to the poolroom where he just loafed around. He could not say whether Balch came up there or that they went there together. Cole could not remember eating lunch.
"The evidence is undisputed that he and Balch arrived back in Rogersville around the time for the Veteran's class supper break which the evidence showed to be 6:00 P.M. In Cole's car they went up to the Veterans School where they saw Mr. James Oaks, their teacher, and Hubert McKee, Tom Denton, Buddy Carlock, and Frank Murrah, some of their classmates. There they delivered the whiskey which they had agreed to get for Hubert McKee in Sheffield. In McKee's judgment at this time Balch and Cole were about three fourths drunk. According to their teacher, Mr. Oaks, the two men talked with him at that time and asked if they could be off, and he told them they would get an unexcused absence for that day. The evidence shows without dispute that their absence from Veterans Class on March 5, 1952, the day of the accident, was unexcused.
"The undisputed evidence further shows that from the school grounds that Balch, Cole, Hubert McKee and Frank Murrah during the short supper break went to McKee's home in Rogersville for the purpose of taking a drink. McKee testified that Frank Murrah drove the Cole automobile from the school to his (McKee's) house while he (McKee) drove Murrah's car there. Cole contended on the stand that it was he who drove the car at this time. In any event, it is undisputed that when they all got there that Balch and Cole (as well as the others) had at least one or two straight drinks of `state' whiskey from the bottle without chasers, and that during the ten or fifteen minutes the two men were there they discussed before the others their previously formed plan for Balch to spend the night with Cole. Hubert McKee testified that aside from the whiskey which Balch and Cole brought to him that night that they (Balch and Cole) had some more whiskey with them, and that he could not *143 recall whether the whiskey which they all drank at his house was his or theirs.
"The tendencies of the evidence show that Balch and Cole while at McKee's house that night between 6:00 P.M. and 6:20 P.M. were intoxicated; that the two men discussed among themselves and agreed that from McKee's home in Rogersville they would travel in Cole's automobile to the Tennessee State line for Balch to pay off a check and for them to get a few beers and then go on to Cole's home where the two of them would spend the night; that even during that day Balch and Cole had talked and discussed and agreed about going up to the State line.
"The undisputed evidence shows that the two men left McKee's house in Rogersville in Cole's automobile headed toward the Tennessee State line with the agreed purpose of going there. Their planned path of travel took them through the small town of Anderson where they stopped at Belue's Store to get some gas. It was their admitted purpose to go on to the State line after refueling. Cole drove up in front of Belue's Store by one of the gas pumps. Balch was in the front seat with him. The evidence showed that Belue's Store was on the main street of Anderson, was a poolroom as well as a gas station, and was situated about ten feet off the street with a big glass window in front through which from inside the gas tanks were in plain view as well as cars parked by such pumps. The record is hazy as to which of the two men ordered the gas or as to which one paid for it, but Cole testified that Balch should have for he had ridden from Sheffield (emphasis supplied) and the Plant with him.
"While the evidence is without conflict that Cole alighted from the car as it was parked by the gas pump in front of Belue's Store and went inside while Mr. Belue was putting the gas in the automobile, Cole and Balch differed as to whether the key was left in the ignition switch with Cole saying he took it out and Balch claiming he left it in. It is, however, without dispute that the two of them stopped at Belue's only for the purpose of buying gas, and that there was no change in their plans to go on from there to the State line as they had previously agreed upon. It can be inferred from all the evidence in the case that Balch and Cole, having had no lunch or supper, were both still under the influence of intoxicating beverages at this time which was only a few minutes after they had left McKee's home in Rogersville.
"The tendencies of the evidence show that as Cole went into Belue's Store his friend, Balch, at first remained in the automobile. As Mr. Belue was servicing the Cole car, Cole began playing a game of pool with one Billy Ridgeway (whom he did not know) at the first table located only a few feet from the big plate glass window in front of the store. It is undisputed that there was no obstruction between where Cole was at this first table and the gas pumps to prevent him from seeing his parked automobile there in front of the store. As heretofore stated the evidence is in conflict as to whether Cole removed the keys to his car when he went into the poolroom with Cole stating that he did and Balch's statement asserting that they were left in the switch. According to Cole's version he took the keys with him when he went inside, and a few minutes later tossed or gave them to Mr. T. D. Belue when Mr. Belue came in and told him that his car needed to be moved, and that he, Cole, asked Mr. Belue to move it. Cole claimed that he paid no attention to his keys or his car after this, that he kept playing pool, that he had no objection to his car being moved, and that he did not know who moved it. He stated that Balch came in the pool room and asked him if he (Cole) was ready to leave, and that he replied that he was playing pool, that he would be ready after while. Cole further asserted that he paid no attention to Balch after this, that he did not know that Mr. Belue had given the keys to Balch for Balch to move the car from where it was parked. He denied that he ever told Balch that he could take the *144 car and go on to the State line. Cole testified that he played two or three games of pool with Ridgeway and didn't know Balch had driven off in his car until some young boys came in the poolroom and told him that his car was gone, that `someone' had gone off up the road in his car. He stated that he laid down his pool stick and asked if anyone would take him to find his car and that Ridgeway said he would. At this time, he said, he didn't `think' he knew it was Balch who had his car. He claimed that he had been told that the car had gone off `up the road,' and that he and Ridgeway drove North out of Anderson (toward the State line) and arrived at the scene of the accident where he saw that his car had been involved. Cole asserted that he did not see Balch when he first got to the scene but when he was looking at his car he heard someone groan over at the culvert or a little ditch and saw Balch and asked him if he was hurt. He claimed that he did not know how Balch left the scene of the accident, but that he saw Balch at Balch's home in Rogersville later that night. He admitted that the Highway Patrol came to the scene while he was there, and that he had conversation with the officers about the accident. He denied that he told Officer Joe West there at the scene that he and Balch had been together all day and had been drinking and had been taking turn about driving his car. Officer West testified that such statement was made, by either Balch or Cole and further that Balch could not be located at the scene of the accident although a search for him at the scene was made. This despite the part that Cole had seen Balch at the scene only a few minutes before the officers arrived and had talked to him.
"Balch's version of the circumstances of his driving the Cole vehicle away from Belue's Store conflicts with Cole's version, and in fact his two written statements introduced in evidence by Appellant conflict with each other. Balch's memorandum statement appearing at R 220 allegedly written by him a day or so after the accident asserts that `we' (he and Cole) had planned to go to a beer joint to pick up a check he (Balch) owned and to get a `few beers', and then he, Balch, was going to spend the night with Cole; that they stopped in Anderson to get some gas; that Cole gave `Blue' the car key to give me (emphasis supplied) to drive the car from the gas pump; that he went in (Belue's) awhile and then thought while he (Cole) was playing pool that he (Balch) would go on up and pick up his check and get some beer and come back. Balch's written statement given to Appellant's adjuster allegedly only a day or so after the accident which was introduced in evidence by Appellant is to the effect that `we got back to Anderson, Ala., about 6:30 P.M. We both got out of the 1936 Pontiac in front of the Pure Oil Station. We had stopped there to get some gas and left the car in front of the station. We went inside the poolroom. Cole began to play some. I watched about a game and then went out to set in the car. Cole left the keys in the ignition in the car. I just went out and cranked the car and drove off. I did not ask Cole's permission to use his car. I had intended to drive up to Leo Thornton's Beer Parlor at the State Line which is about 7 mi. north of Anderson to pick up a check that I had given Mr. Thornton sometime ago. This is something like a credit account. I had gotten about 6 mi. up the road'
"The evidence is undisputed that Balch left the scene of the accident after talking with Cole at the scene (emphasis supplied) and without seeing the investigating highway patrolmen. The inference from the evidence is that he walked from the scene back South towards Anderson for about a half mile to a cross-roads junction known as Bethel Crossroads where he went up to Jesse Cockrell's Store and asked one Hubert Goode to take him to Rogersville. Balch told Goode that `some guys' had run off and left him, and he appeared to be slightly injured. Goode drove Balch *145 to his home outside Rogersville, but Balch made no statement concerning his being involved in the accident.
"From the scene Cole went back to Rogersville and then in the Company of Mr. James Oaks & Frank Murrah, went out to Balch's home. He didn't know how it happened that they went out there. The evidence is without substantial dispute that upon entering the Balch home and seeing Balch that Cole stated to him in substance `I didn't let you have the car, did I?' And that in the course of the rest of the evening he repeated such statement to Balch, ten or twelve times. It is further admitted that Cole, Oaks and Murrah took Balch to the hospital in Athens that night, and then brought him back to his home in Rogersville."
It should be noted that Balch was not a witness in the case. It appears from the evidence that he had moved to Detroit. The two statements referred to in appellees' statement of the facts as being contradictory were the statement given to appellant's adjuster, set out in the statement of facts quoted above, and a memorandum in Balch's handwriting as follows:
"5th Feb. 1952 I had a car wreck.
A preliminary question is whether the term "permission", as used in the omnibus clause, means a permissive use expressly given by the named insured or whether such "permission" may be implied from the surrounding facts and circumstances. It appears to be conceded by appellees that no express permission was given and appellant recognizes the general rule to be that the insured's permission, in order for the user of the automobile to be protected under the omnibus clause, may be either express or implied. We see no good reason to depart from the general rule. 5A Am.Jur., Automobile Insurance, § 94, p. 92; 45 C.J.S. Insurance § 829c (2) (b) aa, pp. 897-898; 7 Appleman, Insurance Law and Practice, § 4365, p. 166; Annotation, 5 A.L.R.2d § 6, p. 608; 6 Blashfield, Cyclopedia of Automobile Law and Practice, Per. Ed., § 3943, pp. 614-615.
As already noted, it appears to be conceded that no express permission was given to Balch to use the automobile for any purpose. Our problem, then, is to determine whether the evidence is sufficient to support a finding that he had Cole's implied permission to use the car on the particular occasion when the accident occurred. We have given full consideration in consultation to all the evidence and do not think that it is sufficient in that respect. To the contrary, the actions of Cole at the filling station, considered in connection with all the other evidence, seem clearly to negative any inference that his car was taken and used by Balch with his permission. There is no evidence that Balch had ever driven the car prior to the occasion here involved except on the same day when Cole was in the car with him. Balch had never driven it alone. Clearly, it seems to us, it cannot be said that Cole's actions *146 furnished any basis for implying that Balch had his permission to drive off in the car and use it as he did. Nor do we think that there is evidence otherwise showing a course of conduct supportive of a finding that Balch had Cole's implied permission to use the car.
While the social relationship between Cole and Balch might be a factor properly to be considered, with other pertinent facts and circumstances, in determining whether Balch was using the car with Cole's implied permission, the fact that they attended the same school and were drinking companions during the day of the accident are not sufficient circumstances alone to support a finding of implied permission in this case. The critical point is that there is no evidence showing a course of conduct in the use of the car by Balch from which Cole's permission for him to use it for his personal purposes on this particular occasion could reasonably be implied.
Usually, an implied permission arises from a course of conduct of the parties over a period of time prior to the use in question. But this is not to say that there may not be an implied consent in the first instance if the particular circumstances justify the inference. The point is that, in the case before us, there was no prior course of conduct in the use of the car by Balch for his individual purposes from which permission on this particular occasion could reasonably be implied; and we find nothing in the circumstances on the day of the accident which could give rise to an implied permission. What was said in Brochu v. Taylor, 223 Wis. 90, 269 N.W. 711, 715, is appropriate here, viz.:
While we are inclined to the view that the cases were properly submitted to the jury under the "scintilla" rule, we are, nevertheless, compelled to the conclusion, after careful consideration of the evidence, and giving effect to the reasonable inferences therefrom favorable to the appellees, that the verdicts were against the clear preponderance and great weight of the evidence. Hence, appellant's motions for new *147 trials should have been granted. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738; Franklin Fire Ins. Co. v. Slaton, 240 Ala. 560, 562, 200 So. 564.
The judgments are due to be reversed and the causes remanded. So ordered.
Reversed and remanded.
LAWSON, SIMPSON, STAKELY, MERRILL and COLEMAN, JJ., concur. | February 19, 1959 |
1be8af15-2f42-42e3-9a74-8b5a3fdedb4f | Haynes v. State | 109 So. 2d 746 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 746 (1959)
Robert HAYNES
v.
STATE of Alabama.
3 Div. 859.
Supreme Court of Alabama.
February 19, 1959.
Morris A. Burkett, Arthur J. Reid and J. O. Sentell, Jr., Montgomery, for petitioner.
MacDonald Gallion, Atty. Gen., opposed.
*747 LAWSON, Justice.
This cause is before us on petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals in the case of Haynes v. State.
The petition asserts error by the Court of Appeals in that it did not reverse the trial court in regard to a ruling on the evidence and because it upheld the action of the trial court in refusing to give at the defendant's request his written charges 3, 6 and 44.
In regard to the ruling on the evidence the petition avers:
The answer of the witness to that question was: "But he did not leave the place that day." We are in accord with the conclusion reached by the Court of Appeals to the effect that if it be conceded that the trial court erred in overruling the objection to the question, the error was harmless in view of the answer given.
The trial court gave a large number of written charges at the request of the defendant and refused more than forty such charges. The Court of Appeals did not treat any of the refused charges separately, but simply held that all of them were refused without error because they "* * * were abstract, incorrect principles of law, otherwise faulty, or were substantially and fairly covered by given charges or the court's oral charge * * *."
This treatment of the refused charges by the Court of Appeals does not present any question for our consideration because under our limited review of the decisions of the Court of Appeals questions not separately treated or discussed in the opinion of that court are not before us for consideration on petition for certiorari. Tortomasi v. State, 238 Ala. 253, 189 So. 905.
Writ denied.
STAKELY, GOODWYN and MERRILL, JJ., concur. | February 19, 1959 |
678d8f3a-cbd6-4336-8320-3b38f098804c | Pope v. Pope | 109 So. 2d 521 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 521 (1958)
Kate C. POPE
v.
Harvey O. POPE.
8 Div. 864.
Supreme Court of Alabama.
October 16, 1958.
Rehearing Granted February 12, 1959.
Marion F. Lusk, Guntersville, for appellant.
Scruggs & Scruggs, Guntersville, for appellee.
COLEMAN, Justice.
On application for rehearing we have concluded that the original opinion should be withdrawn and the present opinion substituted in lieu thereof.
The wife filed her bill for divorce on the ground of cruelty, and prayed for permanent alimony and solicitor's fees. The husband made his answer a cross bill and prayed for divorce, also on the ground of cruelty.
The cause was submitted on the pleadings and on testimony taken on oral examination of witnesses before the register. The trial court awarded a divorce *522 to the wife on the ground of cruelty and allowed her a solicitor's fee of $200 which has been paid, but decreed that "Complainant is not entitled to any alimony or support from Respondent under all the circumstances, * * *."
The wife has appealed and assigns as error the action of the court below in denying her an allowance out of the estate of the husband and in not awarding a greater sum for solicitor's fee. The wife has filed a petition in this court asking for the allowance of an attorney's fee on this appeal.
The trial court did not hear the evidence ore tenus and we must review this proceeding without any presumption in favor of the trial court's findings. Ala. Digest, Appeal and Error, Divorce.
The record shows cruelty on the part of the husband sufficient to sustain the action of the trial court in awarding a divorce to the wife. The record also discloses conduct on the part of the wife towards her husband and his four daughters by a former marriage calculated to vex and harass the husband.
This court has said:
We understand certain facts in this case to be as follows:
Both parties had been married before. The wife was 46 and the husband 52 years old in 1946 when they were married to each other. The husband at that time owned two farms worth probably $15,000, according to his evidence. The wife's evidence tended to show that the farms had a value exceeding $38,000. The evidence as to the husband's annual income is not clear but supports an inference that he was a reasonably successful farmer. After 8 years, they parted in 1954 without any child born of their union.
The evidence tends to show that by marrying respondent, the wife gave up a pension of $50 per month which she had been receiving as the widow of a veteran of World War I. It does not appear that she had at the time of divorce any income or property except furniture and household furnishings, which had been delivered to her prior to the entry of the final decree in this cause.
Three of the husband's four daughters were living in his home at the time of the marriage. One of the three left home six months after the marriage of appellant and appellee, and another left four years thereafter when she was nineteen. The youngest daughter, aged six years at the time of the marriage, continued to reside with her father at the time of the trial.
Although there is evidence to the contrary, the entire record supports an inference that appellant was not industrious and that her disposition and conduct as wife and foster mother did not promote the peace and harmony of the household, but rather had an opposite effect. It does not appear that she had contributed to the accumulation of the husband's estate and the record supports the conclusion that she bears a large measure of responsibility for the failure of this marriage. A detailed recital of the evidence would serve no good purpose. We have carefully considered all the evidence.
*523 On original deliverance, we concluded that under § 32, Title 34, Code of 1940, the decree of the trial judge denying alimony would be reversed only for abuse of discretion. On rehearing after further extended consideration, we are of opinion that under former decisions of this court we are bound to review the evidence without any presumption in favor of the trial judge's conclusion where all the evidence was taken by deposition and the trial judge did not see or hear any witness testify. McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602; Green v. Green, 249 Ala. 150, 30 So. 2d 905; Campbell v. Campbell, 252 Ala. 487, 41 So. 2d 185; Chamblee v. Chamblee, 255 Ala. 35, 49 So. 2d 917; Arthur v. Arthur, 262 Ala. 126, 77 So. 2d 477; Barnett v. Barnett, 266 Ala. 489, 97 So. 2d 809.
The decree appealed from held "that the Complainant is entitled to the relief prayed for in said Bill" of complaint, and decreed that the wife "is forever divorced from the said Harvey O. Pope for and on account of cruclty." Such a decree can only be considered as a decree in favor of the wife for the misconduct of the husband. The record contains evidence to support it and neither party complains of this part of the decree below. Its correctness in this respect is not before us for review.
Section 32, Title 34, Code 1940, gives to the judge trying the case a discretion in deciding to award or deny alimony and in determining the amount, if any is to be allowed, but that discretion is judicial, not arbitrary, and is subject to review on appeal. Sharp v. Sharp, 230 Ala. 539, 161 So. 709; Ala. Digest, Divorce,
As noted above, the evidence does not leave the wife blameless. The misconduct of the wife, even though not grounds for divorce, may be considered as in a measure palliating the offense of the husband and as abridging her claim to an allowance for alimony. McGregor v. McGregor, 257 Ala. 232, 58 So. 2d 457. The claim for alimony in this case must be considered as in large measure reduced under the foregoing rule.
We are of opinion, however, that wife's claim to alimony is not entirely forfeited under all circumstances of this case. She lived with the husband 8 years; the husband himself admitted that she worked in the fields "Some"; at time of separation, for which the husband is to be charged, she was 54 years old; she has no property and no means of earning a living, so far as the record discloses. The husband has property shown by his own witnesses to be worth $15,000, he is able-bodied and able to earn an income as a farmer.
See also Puckett v. Puckett, 240 Ala. 607, 200 So. 420.
It is our conclusion that $1,000 should be allowed appellant as permanent alimony and that an additional $100 be allowed her counsel for services on this appeal. Said sums are to be paid on or before the first day of December, 1959, and to secure payment of same a lien is hereby adjudged and fixed on all the real estate of appellee.
Appellee has filed in this court a motion to dismiss this appeal for the reason that appellant has married a third party pending the appeal. Pretermitting any consideration as to the validity of such marriage under § 38, Title 34, Code 1940, we are of opinion that appellee's motion to dismiss is due to be denied. This appeal is to determine wife's claim to alimony as of the date of the decree appealed from. Her subsequent remarriage would operate upon the alimony claim as of the later remarriage date. In Morgan v. Morgan, 211 Ala. 7, 9, 99 So. 185, 187, this court said:
The cause is remanded for proper proceedings in accordance with this opinion.
Application for rehearing granted.
Original opinion withdrawn.
Reversed, rendered, and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | February 12, 1959 |
eeccf6bd-e90c-472a-b1ce-372e0bc87a05 | Wanninger v. Lange | 108 So. 2d 331 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 331 (1959)
Mary M. WANNINGER et al.
v.
William H. LANGE.
6 Div. 267.
Supreme Court of Alabama.
January 8, 1959.
*332 Sam L. Reames, Birmingham, for appellants.
Mead & Norman, and Marshall H. Fitzpatrick, Birmingham, for appellee.
STAKELY, Justice.
This case was instituted by the filing of a petition in the Probate Court of Jefferson County to probate the last will and testament of Sara A. Lange, deceased, by William H. Lange, who purported to be the named executor of the will. The petition alleged in part that at the time of her death Sara A. Lange was an inhabitant of Jefferson County, Alabama, leaving assets in this state and leaving a last will and testament duly signed and attested.
Contest of the will was filed by William H. McFarland, Mary F. Wanninger and Frances Dorin. William H. Lange filed a petition for removal of the contest to the circuit court for the 10th Judicial Circuit of Alabama, which was granted.
After various procedural steps were taken, which need not be set out here, the contest of the will was submitted to a jury which found the issues in favor of the proponent of the will and against the contestants. This appeal followed.
The case is submitted here not only on the merits of the case but also on a motion to strike the transcript of the record and to dismiss the appeal. Upon a consideration of the matter, we think that the motion should be granted.
Before stating the grounds of the motion we think it well to show the facts in connection therewith. Appeal was taken on January 31, 1958. The transcript of the evidence was filed in the office of the circuit clerk by the court reporter on March 27, 1958, as shown by the stamp of the circuit clerk, "Filed in office March 27, 1958. Julian Swift, Clerk." The court reporter's certificate appears to show that the transcript of evidence was filed on March 28, 1958. It is immaterial whether the transcript of testimony was filed in the office of the circuit clerk on March 27, 1958, or March 28, 1958, for which ever date is correct, the ten day period allowed for filing of objections to the transcript of evidence expired April 7, 1958, since April 6, 1958, was a Sunday. Purported objections to the transcript of testimony were filed by the appellant on April 17, 1958. The record shows that the court purported to act on these objections on two or three different occasions, finally approving the transcript on June 6, 1958.
Thereafter, on August 2, 1958, appellant filed with the circuit clerk her "application for extension of time for filing record on appeal." Appellee filed objections to such application raising substantially the same points presented by his motion to strike the record and dismiss the appeal filed in this court. On the same date, August 2, 1958, the circuit court entered its order purporting to extend the time for filing the transcript of record in this court to August 18, 1958. It should be noted that in said order the circuit court stated that it was in doubt as to whether it had jurisdiction to make the order.
There are four grounds to the motion filed in this court. Ground One of the motion takes the point that the transcript of evidence became perfected under the provisions of Title 7, § 827(la), 1955 Cumulative Pocket Part of Code of 1940, *333 on March 27, 1958, the date it was filed with the clerk of the circuit court by the court reporter, inasmuch as no objections were filed to said transcript within the ten day period allowed therefor by said statute, and that consequently the transcript of the record was due to be filed in this court on or before May 26, 1958, as prescribed by Rule 37 of this court, Code 1940, Tit. 7 Appendix. Said ground further takes the point that no extension for the filing of the transcript has been granted in the manner or within the time allowed by said Rule 37, and that consequently, the filing of the transcript of the record on August 16, 1958, was too late by nearly three months.
Ground Two of the motion is substantially the same, except that it also takes the point that even allowing the appellant the leeway of the ten days' time after the filing of the transcript of the evidence with the clerk of the circuit court during which objections could have been filed as a part of the period during which the transcript of the evidence was being formulated, nevertheless, the filing of the transcript of the record in this court came too late by a wide margin of time.
Ground Three of the motion merely states in general terms that the transcript was not filed in this court within the time allowed by law.
Ground Four of the motion makes the point that assuming, that the trial court could properly consider objections to the transcript of the testimony filed by the appellant subsequent to the time allowed her by the provisions of Title 7, § 827(la), supra, still the transcript of the evidence was not perfected within the ninety day period from the date of appeal allowed by the statute, nor was there any order extending the time for settling the transcript for good cause entered by the trial court as permitted by statute. Consequently, applying the provisions of Rule 37 of this court, the filing of the transcript here still came too late.
I. We note that Title 7, § 827(la), supra, provides that in the event no objections are filed to the transcript of evidence within ten days after its filing with the clerk of the court, "The transcript shall be conclusively presumed to be correct." Several decisions of the Court of Appeals and of this court have stated that this statute means exactly what it says. In Lane v. State, 38 Ala.App. 487, 87 So. 2d 668, it is said:
In Clark v. State, 38 Ala.App. 480, 87 So. 2d 669, 670, it is stated:
A like statement is found in Aaron v. State, Ala.App., 94 So. 2d 415, 416:
This court considered the effect of this statute in Relf v. State, 267 Ala. 3, 99 So. 2d 216, 219, in which it is said:
*334 Incidentally in the Relf case this court specifically approved the holdings in the cases of Lane v. State, supra, and Clark v. State, supra.
So at the end of April 7, 1958, when there had not been filed with the Clerk of the Circuit Court of Jefferson County any objections to the transcript of the evidence filed with him by the court reporter, under the plain terms of this statute and the authorities hereinabove set forth, the transcript of evidence in this case became conclusively established as of the date when it was filed with the clerk. Thereupon there was set in motion the provisions provided by Title 7, § 769, Code of 1940, and Rule 37 of this Court, to measure the period during which the transcript must have been filed by the appellant in this court.
This statute and rule require that the transcript of the record be filed in this court within sixty days after the transcript of the evidence has been established in the court below. Where, as here, the transcript of the evidence was established as of March 27th or March 28th, 1958, the statute and rule, therefore, necessitate the filing of the record in this court on or before May 26th or May 27th, 1958. Even allowing appellant the additional period of ten days provided by Title 7, § 827(la), supra, the filing should have been on or before June 6, 1958. However, the record was not filed in this court until August 16, 1958, more than two months too late.
The Alabama cases show that where no extension of time for filing the record in this court has been obtained in the manner or within the time prescribed by Rule 37, the record must be stricken and the appeal dismissed on appellee's motion praying for such result. Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381; Relf v. State, supra; West v. State, Ala.App., 101 So. 2d 638, certiorari denied 267 Ala. 700, 101 So. 2d 640; Lane v. State, supra; Clark v. State, supra, and Aaron v. State, supra. We are aware of our decision in City of Athens v. Cook, Ala.Sup., ___ So.2d ___. The facts in that case are obviously different from the facts of the instant case.
Rule 37 of this court permits an appellant to make application to the trial court for an extension of time in which the record may be filed in this court. However, this extension cannot be longer than an additional thirty days, making a total of no more than ninety days which may elapse from the establishment of the transcript of the evidence in the court below before the record must be filed in this Court. So, upon proper application the trial court could have extended the time for filing the record in this court to a day ninety days from either March 27, 1958, or March 28, 1958, or April 7, 1958, whichever day is taken as the proper one upon which the transcript of the evidence was established in the trial court. This court has held that such an application can be made in the trial court at any time before the lapse of the ninety days following establishment of the transcript of the evidence. Terry v. State ex rel. Pettus, 264 Ala. 133, 85 So. 2d 449. However, no such application was made in this case within the time prescribed by law.
In Lewis v. Martin, 210 Ala. 401, 98 So. 635, 642, this court said:
Since the appellant is the actorthe one invoking the appellate court's jurisdiction and seeking its reliefit is only just that the burden of perfecting the appeal is upon her and that the penalty for failure to observe the procedural requirements of processing the appeal must be borne by her. Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 81 So. 2d 674; Graham v. State, 30 Ala.App. 179, 2 So. 2d 463; Stanton v. Monroe County, 261 Ala. 61, 72 So. 2d 854; Hayes v. State, Ala.App., 99 So. 2d 703, *335 certiorari denied 267 Ala. 695, 99 So. 2d 704; Clary v. Cassels, 258 Ala. 183, 61 So. 2d 692.
This appellant has in failing to file objections to the transcript of the evidence within the time allotted by law and in failing to make proper and timely request for extension of time for the filing of the record in this court, either from the lower court or from this court, clearly violated the requirements of the applicable statutes and rules governing the perfection of her appeal. Accordingly, we think it only right that this record be stricken and the appeal dismissed.
We note, however, that the appellant did file objections to the transcript of the evidence on April 17, 1958, ten days after the time allowed her by the statute for so doing, and the trial court did proceed to make rulings on said objections. Likewise, appellant did file with the lower court on August 2, 1958, application for extension of time to file the record in this court. This application should, however, have been filed with the trial court within ninety days of the establishment of the transcript of evidence or more than a month prior to the time when it was actually filed. In each of these instances of belated action by appellant, it is obvious that the proceedings in the trial court and the orders resulting therefrom, were without the pale of its authority as set forth in the applicable statutes and rules to which we have referred.
We have said, "Courts acting without authority can impart no validity to their proceedings and their judgments are assailable in any proceeding." Crump v. Knight, 256 Ala. 601, 56 So. 2d 625, 627. We think this is especially true when the proceeding in question is in derogation of the common law, as in the case of appeals where courts must act, if at all, under special statutory authority. In these cases a compliance with the requisitions of the statute is necessary to the court's jurisdiction and must appear on the face of its proceedings. This court has often declared and held completely null and void the proceedings in lower courts and the orders or judgments resulting therefrom where it has appeared that the powers vested in courts by statutes have been exceeded. City of Birmingham v. Reed, 35 Ala.App. 31, 44 So. 2d 607; Clary v. Cassels, supra; Avery Freight Lines v. Persons, 250 Ala. 40, 32 So. 2d 886; Beatty v. McMillan, 226 Ala. 405, 147 So. 180. We may add that such a defect can be cured neither by laches, acquiescence or waiver. Beatty v. McMillan, supra; City of Birmingham v. Reed, supra.
We conclude that the entry of the lower court made on August 2, 1958, purportedly extending the time for filing the record in this court to August 18, 1958, was coram non judice, void and of no effect.
On the basis of the foregoing we think that the motion to strike the record and dismiss the appeal should be granted.
Motion to dismiss the appeal granted.
LAWSON, GOODWYN and MERRILL, JJ., concur. | January 8, 1959 |
1f344c19-a8a0-4113-b767-7b768a053eab | Wideman v. State | 110 So. 2d 298 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 298 (1959)
R. E. WIDEMAN
v.
STATE of Alabama.
7 Div. 372.
Supreme Court of Alabama.
March 19, 1959.
*299 John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for petitioner.
Wales W. Wallace, Jr., Columbiana, opposed.
COLEMAN, Justice.
In granting the writ, we specified that review would be limited to that part of the opinion of the Court of Appeals delivered on rehearing, wherein it was concluded that there was a fatal variance between the indictment and proof in that the indictment described one of the items stolen as "one piece of steel cable * * * a better description of which property is to the Grand Jury unknown otherwise than as indicated * * *," but the proof showed that the Grand Jury did know that the cable stolen was seventy-five feet long and, therefore, did know a better description of the property.
The rule is well established that conviction cannot be sustained when a material variance appears between averment and proof, and objection is properly made. Duvall v. State, 63 Ala. 12; Winter v. State, 90 Ala. 637, 8 So. 556; James v. State, 115 Ala. 83, 22 So. 565.
The rule also is that when the description of the stolen property in the indictment is sufficient, the further statement that a better description was unknown to the grand jury is surplusage and immaterial, and proof that the grand jury did know does not present a material variance which will prevent conviction. Carden v. State, 89 Ala. 130, 7 So. 801.
In the instant case, the description of the cable is in these words, "one piece of steel cable * * * a better description of which property is to the Grand Jury unknown, etc. * * *." The question is, do the words, "one piece of steel cable," standing alone describe that item with required definiteness and certainty? We are of opinion that the words, "one piece of steel cable," standing alone are not sufficiently definite and certain.
In 52 C.J.S. Larceny § 77, page 870, it is said:
* * * * * *
In State v. Murphy, 6 Ala. 845, a description of stolen property as: "sundry pieces of silver coin," was held not sufficiently particular, the court saying the indictment should have stated the number and denomination of the coins alleged to have been stolen.
In Croker v. State, 47 Ala. 53, a description as: "ten dollars in money of United States currency," was held "too indefinite."
In Grant v. State, 55 Ala. 201, a description as: "ten twenty-dollar gol pieces of American coinage," was held sufficient, the court saying again, if the larceny is of coin, the number and denomination must be stated, although when species and denominations are unknown, that fact may be averred.
In Noble v. State, 59 Ala. 73, a description as: "one hundred and eighty dollars, or other large sum of money," was held insufficient.
In Burney v. State, 87 Ala. 80, 6 So. 391, a description as: "two hundred dollars in gold coin of the United States," was held bad, the court through Stone, C. J., saying:
See also: Gady v. State, 83 Ala. 51, 3 So. 429; Owens v. State, 104 Ala. 18, 16 So. 575; Leonard v. State, 115 Ala. 80, 22 So. 564; Thomas v. State, 117 Ala. 84, 23 So. 659; Verberg v. State, 137 Ala. 73, 34 So. 848; Hamilton v. State, 147 Ala. 110, 41 So. 940; Montgomery v. State, 169 Ala. 12, 53 So. 991; Collins v. State, 14 Ala.App. 54, 70 So. 995.
According to the rule of the above cited cases, a description as "one piece of silver coin" would be insufficient. "One piece of steel cable" is no better. "Cable" has been defined as:
To inform a defendant that he is charged with stealing "one piece of steel cable," is to leave an innocent accused ignorant of the nature and cause of the accusation. One piece of steel cable, according to common understanding, can mean a great variety of lengths and diameters of steel rope, and in some circles in ordinary context can and does indicate a chain.
The reason for securing to an accused the right to demand the nature and cause of the accusation has been stated as follows:
One reason why an indictment should be definite has been summarized in the following language:
The description, "one piece of steel cable," standing alone being insufficient, the averment that a better description was unknown was necessary to make the indictment sufficient, and proof that a better description was known to the grand jury presented a material variance between allegation and proof. The Court of Appeals so held, and that holding is affirmed.
As we understand the Court of Appeals, in this case, averment and proof that the cable was included in the articles taken was essential to conviction for grand larceny as distinguished from petit larceny. Because of that understanding, no consideration has been given to the rule that conviction may sometimes be sustained by proof of taking some only, and not all, of the articles described in the indictment and alleged to have been taken.
When the dimensions are known to the grand jury, the prosecution suffers no hardship by stating the known facts. If the cable should be a chain, that fact should be stated. If the dimensions are unknown, that fact may be averred, and if the dimensions are partially known but are uncertain, then:
See also: Smith v. State, 142 Ala. 14, 39 So. 329; Harrison v. State, 144 Ala. 20, 40 So. 568.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | March 19, 1959 |
99caca6e-1f44-442c-9b37-ee3762c8fc65 | Ex Parte National Association for Advancement of Colored People | 109 So. 2d 138 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 138 (1959)
Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE.
In re STATE ex rel. John PATTERSON, Atty. Gen.,
v.
N. A. A. C. P.
3 Div. 779.
Supreme Court of Alabama.
February 12, 1959.
Robt. L.Carter, New York City, Fred D. Gray, Montgomery, and Arthur D. Shores, Birmingham, for petitioner.
John Patterson, Atty. Gen., Edmon L. Rinehart and Jas. W. Webb, Asst. Attys. Gen., for respondent.
PER CURIAM.
This cause comes before this tribunal on mandate from the Supreme Court of the United States, N. A. A. C. P. v. State of Ala., 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488; this Court having previously denied certiorari, but having expressed its views as to the merits of the petitioner's claim of a constitutional right to refuse production of its membership lists. 265 Ala. 349, 91 So. 2d 214.
While the Supreme Court of the United States, in its opinion supra, seems to recognize its lack of jurisdiction over matters of state ("nonfederal") procedure, it nevertheless assumed jurisdiction quoad hoc ("for this turn", as that phrase has been sometimes defined), and this upon the premise that the interpretation by this Court of its own procedural rules was erroneous, or that petitioner was not sufficiently apprised of this Court's "novel" interpretation of those rules in the decision under review.
Lest there be no misapprehension on the part of the bench and bar of Alabama, we here reaffirm the well recognized and uniform pronouncements of this Court with respect to the functions and limitations of common-law certiorari, and the distinctions between that and other methods of review. 265 Ala. 349, 91 So. 2d 214, supra. As we stated in American Federation of State, County and Municipal Employees v. Dawkins, 268 Ala. ___, 104 So. 2d 827, 834: "We cannot hurdle or make shipwreck of well-known *139 rules of procedure in order to accommodate a single case."
The decision of the Federal Supreme Court seems to have proceeded upon a hearing there, upon consideration of allegations there made, and upon showings or evidentiary matters and contentions, much of which were never before this Court. It thereupon reversed the judgment of this Court and remanded the case for further proceedings "not inconsistent with" the opinion of that Court.
The first question before this Court on original consideration was whether or not there existed a prima facie right of refusal on the part of the petitioner. Ex parte Boscowitz, 84 Ala. 463, 4 So. 279. For the purposes of our decision we limited our opinion on the merits to petitioner's right of refusal to submit its membership lists. This question has been answered by the Supreme Court of the United States in the negative, by holding the petitioner to have a qualified right under the facts appearing before that Court, subject to an overriding interest of the State. The finding of that Court was to the effect that the State of Alabama had failed, at the hearing, to show such an overriding interest and ruled petitioner was not in contempt for failure to produce the lists.
This brings up the second question for review now, viz.: the scope of the order of the trial court and the facts apparent on the face of the record. Petitioner contends that it was held in contempt for refusal to produce its membership lists. As to the petitioner's right of said refusal, the Supreme Court of the United States, as stated, has settled that point, and no further discussion would be proper. However, petitioner's contention as to this sole reason it was held in contempt is not borne out by the record and the Supreme Court of the United States in its opinion, supra, seems to have rested decision on this mistaken premise. We wish to here point out that the record reveals that petitioner was held in contempt for "its willful and deliberate refusal to produce the documents described in the former order of the court in this cause" (orders dated July 25 and July 31, 1956).
Again the record before us shows: "* * * counsel for respondent objected to the motion to produce and the court ruled, as shown by its order on file, that certain books, papers and documents mentioned in the motion * * * should be brought into court. * * *" (Order dated July 25, 1956).
The Supreme Court of the United States, as to the entire order to produce, stated: "* * * petitioner * * * has apparently complied satisfactorily with the production order, except for the membership lists * * *. These last items would not on this record appear subject to constitutional challenge and have been furnished." [357 U.S. 449, 78 S. Ct. 1173.]
We cannot presume, as did the Supreme Court of the United States, that the petitioner did furnish the other items listed, in view of the finding of the circuit court on the face of its order that it did not; for, as we held on Ex parte Dickens, 162 Ala. 272, 50 So. 218, 222 (and approved by the Supreme Court of the United States in its review): "Following the rules above stated, the chancellor has found the facts that said Dickens has not, in good faith, obeyed the orders of the court, but, on the contrary, has filed a false and fraudulent account; and we must take his finding as being correct. Those being the facts, said Dickens was properly adjudged to be in contempt * * *."
There is nothing in the record here before us upon which we could bottom a conclusion that petitioner has apparently complied satisfactorily with the production order, except for the membership lists.
Being soand pretermitting further discussion of the claimed contempt of petitioner for refusal to submit the membership listsit is clear the petitioner is still in contempt for its failure to produce the *140 other "certain books, papers and documents" described in the lower court's order, thereby necessitating another affirmance of the judgment.
Petitioner has filed a motion praying that this Court will cause to be sent to the Circuit Court of Montgomery County, Alabama, the mandate of the United States Supreme Court so that petitioner may proceed to have a hearing on the merits of the injunction issued by said Circuit Court.
It results from the foregoing considerations that the motion is not well taken and is overruled and the judgment is again affirmed.
Motion overruled and judgment affirmed after remandment.
All the Justices concur. | February 12, 1959 |
b21fa4a7-2f04-4ce9-96a5-d75be7600243 | Ex Parte Watkins | 109 So. 2d 671 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 671 (1959)
Ex parte Herbert L. WATKINS.
Herbert L. WATKINS
v.
CITY OF DOTHAN.
4 Div. 967.
Supreme Court of Alabama.
February 19, 1959.
*672 J. Hubert Farmer, Dothan, for appellant.
C. R. Lewis, Dothan, for appellee.
SIMPSON, Justice.
Petition for writ of certiorari to the Circuit Court of Houston County to review the judgment of that court sustaining an order of the Personnel Board of the City of Dothan wherein petitioner was dismissed from the service as a police officer of the city.
The Chief of Police of the City of Dothan suspended petitioner as a policeman and removed him from duty. Petitioner appealed from said order of suspension and removal to the Personnel Board of the City of Dothan. After a hearing, the Personnel Board upheld the Police Chief's action. Petitioner thereafter appealed from the action of the Personnel Board to the Circuit Court of Houston County. From the proceedings in the Circuit Court petitioner applied for and was granted this writ of certiorari.
The points of error relied on by petitioner to reverse the judgment of the Circuit Court are the alleged error of the Circuit Court in rendering judgment in the case without first setting the cause down for hearing or trial and giving petitioner opportunity to be heard by counsel.
The proceedings are governed by Section 33 of Local Act No. 273, Local Acts of Alabama, 1947, page 196, at page 214, which reads:
The Act is silent concerning an appeal from the judgment of the Circuit Court, so certiorari is the proper procedure in such cases to review the proceedings in the Circuit Court. Ex parte Bracken, 263 Ala. 402, 82 So. 2d 629; Ex parte Morris, 263 Ala. 664, 83 So. 2d 717; Ex parte Darnell, 262 Ala. 71, 76 So. 2d 770; Ex parte Noble, 267 Ala. 488, 102 So. 2d 902.
By such review, however, we are limited to a consideration of the proper application of the law involved and whether the ruling was supported by any legal evidence. Ex parte Bracken, supra. The cases in general have held that the function of the writ of certiorari at common law extends to the question of jurisdiction of the inferior tribunal and the external validity and regularity of the proceedings, but not to its intrinsic correctness. The writ will not be employed to inquire into the correctness of the judgment rendered where the forms of the law have been followed, and where the court has jurisdiction, and was therefore competent. Ex parte Biddle, 258 Ala. 190, 61 So. 2d 803; Sims v. Sims, 250 Ala. 494, 35 So. 2d 89; Ex parte Tulley, 227 Ala. 277, 149 So. 700; Ex parte Slaughter, 217 Ala. 515, 116 So. 684; Towns v. Malone, 217 Ala. 273, 116 So. 131; City of Birmingham v. Reed, 253 Ala. 414, 44 So. 2d 614; Byars v. Town of Boaz, 229 Ala. 22, 155 So. 383; Ex parte Kelly, 221 Ala. 339, 128 So. 443; Ex parte Big Four Coal Mining Co., 213 Ala. 305, 104 So. 764. A court's jurisdiction and power until invoked lie dormant, and if the court proceeds in a manner in which its jurisdiction has not been invoked, in a summary manner, or in a new course different from the common law, the proceedings are without jurisdiction and the common-law certiorari is the appropriate remedy to review and quash such proceedings. Ex parte Wilkey, 233 Ala. 375, 172 So. 111; Ex parte Tarlton, 2 Ala. 35. Mere irregularities or errors correctable by appeal cannot be considered. Ex parte Tulley, supra; Nashville, C. & St. L. Ry. Co. v. Town of Boaz, 226 Ala. 441, 147 So. 195. The appropriate office of the writ is to correct errors of law apparent on the face of the record. Towns v. Malone, supra; Ex parte Big Four Coal Mining Co., supra.
Although the record in this case does not affirmatively show that no hearing was had before the Circuit Court on appeal from the Board, the record fails to reveal that such a hearing was in fact held, and in view of the fact that respondent apparently concedes the lack of such a hearing, we will so treat the case and proceed upon the assumption that no hearing was had.
The provisions of Section 33 of the Local Act relative to appeal from the order of the Personnel Board to the Circuit Court and the procedure to be followed in prosecuting said appeal are somewhat vague and ambiguous. That section in applicable part provides:
The writ, however, is not one of right, but its issuance rests within the sound discretion of the court, and it will not be used by superior courts to revise inferior courts, unless necessary to do substantial justice. The discretion will be exercised as the justice of the particular case may suggest or require, and agreeable to the law pertaining thereto. Byars v. Town of Boaz, supra; Ex parte Kelly, supra; Wright v. Court of County Commissioners, 180 Ala. 534, 61 So. 918; Flournoy v. Payne, 28 Ark. 87; 14 C.J.S. Certiorari § 10, p. 137.
And a writ improvidently granted, where, for instance, discretion in granting the writ has been improperly exercised, may be quashed or the lower judgment affirmed. Ferlita v. Figarrota, 106 Fla. 578, 145 So. 605; Carter v. Atlanta Life Insurance Co., 180 Ga. 419, 179 S.E. 80, dismissing certiorari 47 Ga.App. 838, 171 S.E. 729; Gormley v. Public Indemnity Co., 180 Ga. 140, 178 S.E. 154, dismissing certiorari Public Indemnity Co. v. Gormley, 47 Ga.App. 684, 171 S.E. 151; Flournoy v. Payne, supra; 14 C.J.S. Certiorari § 135b, p. 264. And see Byars v. Town of Boaz, supra. The court, in the exercise of its discretion, may also dismiss the writ on its own motion without any application for dismissal being made by either party. Ferlita v. Figarrota, supra; Fidelity & Casualty Co. of New York v. Plumbing Department Store, 117 Fla. 119, 157 So. 506; People ex rel. Macauley v. Burdette, 285 Ill. 48, 120 N.E. 519, reversing 207 Ill.App. 265; Flournoy v. Payne, supra; 14 C.J.S. Certiorari § 136, p. 269.
Likewise the rule is that the writ will not be used where its operation would be vain and useless, or where the action of the inferior tribunal sought to be reviewed is correct. Putman v. Williams, 227 Ala. 428, 150 So. 702; Ex parte Armbrecht, 203 Ala. 585, 84 So. 725, denying certiorari Paterson-Edey Lumber Co. v. Firm Lumber Co., 17 Ala.App. 262, 84 So. 314; 14 C.J.S. Certiorari § 12, p. 140.
"It has generally been considered improvident to grant the writ when it appears that substantial justice has been done, even though some irregularity of procedure has occurred." Ferlita v. Figarrota, supra [106 Fla. 578, 145 So. 606]. From the foregoing it appears that if it is now concluded that further consideration of the case on its merits by the circuit court must inevitably result in a judgment of affirmance by that court of the order of the Personnel Board, it results that the writ should be quashed. The return to the writ of certiorari has been made. See Byars v. Town of Boaz, supra. We have carefully reviewed the record and we cannot say that the action of the Personnel Boardaffirmed by the circuit courtwas not supported by substantial legal evidence. Ex parte Bracken, supra; Ex parte Morris, supra; Ex parte Noble, supra. The determination of the weight and credibility of the evidence brought forth on the hearing before the Personnel Board and the privilege to draw inferences therefrom was for that administrative body in such an adjudicatory proceeding. Ex parte Morris, supra.
Section 33 of the applicable Local Act provides that the findings of fact by the Personnel Board, duly set forth in the *675 transcript, if supported by substantial evidence adduced before the Board, shall be conclusive on any appeal. Having concluded from a perusal of the record sent here on return of the writ that the findings of fact by the Personnel Board in the instant case are supported by substantial evidence adduced at the hearing and that the order appealed from was neither unlawful nor unreasonable, it would be vain and useless to send this case back to the Circuit Court for hearing, as the findings of fact in the record are conclusive and it appears that the order of the Board must inevitably be affirmed.
Writ quashed.
STAKELY, GOODWYN, MERRILL, and COLEMAN, JJ., concur. | February 19, 1959 |
ca3d629f-d71f-47bd-bcba-246e3a629ba5 | Barnett v. Barnett | 109 So. 2d 717 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 717 (1959)
Sarah Ann [Key] BARNETT
v.
William G. BARNETT.
8 Div. 942.
Supreme Court of Alabama.
February 19, 1959.
John R. Barnes, Florence, for appellant.
Pounders & Wilson, Florence, for appellee.
GOODWYN, Justice.
This is an appeal from a final decree of the law and equity court of Lauderdale County, in equity, granting a divorce to the appellee-husband (complainant below) on the ground of cruelty (Code 1940, Tit. 34, § 22, as amended by Act No. 487, appvd. Sept. 30, 1947, Gen.Acts 1947, p. 336), awarding him custody of the parties' three and a half year old son, and denying to appellant-wife (respondent and cross-complainant below) the relief sought in her cross-bill.
There have been two prior appeals before us involving this marital controversy. Barnett v. Barnett, 266 Ala. 489, 97 So. 2d 809; Barnett v. Barnett, 266 Ala. 490, 97 So. 2d 810. On remandment to the trial court both of those cases were consolidated and a new hearing was had on amended pleadings, all by agreement of the parties. The husband's amended complaint sought a divorce on the ground of cruelty and custody of the child. The wife's cross-complaint *718 sought similar relief and also alimony, support for the child and counsel fees.
There are two points argued. One concerns the propriety of the decree in awarding custody to the father. The other relates to the propounding by the trial judge of questions to the appellant in the course of her examination as a witness. No insistence is made that error was committed in granting a divorce in favor of the husband and denying such relief to the wife; nor is any question presented as to the denial of alimony.
In determining which parent in a divorce suit is entitled to the custody of their minor child, each case must be decided on its own peculiar facts and the personalities involved. Gardiner v. Willis, 258 Ala. 647, 650, 64 So. 2d 609; Green v. Green, 249 Ala. 150, 152, 30 So. 2d 905; Sneed v. Sneed, 248 Ala. 88, 90, 26 So. 2d 561. The controlling consideration in awarding custody is the welfare and best interest of the child. Gardiner v. Willis, supra; Green v. Green, supra; Hammac v. Hammac, 246 Ala. 111, 113, 19 So. 2d 392; Worthy v. Worthy, 246 Ala. 52, 54, 18 So. 2d 721. In the light of these principles we have given careful consideration to the evidence, all of which was taken orally before the trial judge, and are not prepared to say that error was committed in awarding custody of the child to the father. As said in Sneed v. Sneed, supra [248 Ala. 88, 26 So.2d 562]:
It is argued that since the child is "of such tender age as to require the care and attention that a mother is especially fitted to bestow upon it, the mother, rather than the father, is the proper custodian unless, of course, for some reason she is unfit for the trust." See Hawkins v. Hawkins, 219 Ala. 31, 32, 121 So. 92. We have given due consideration to this principle and are not persuaded that the trial court's conclusion from the evidence as to what is best for the child is laid in error.
As to the other point argued, we need only to observe that appellant interposed no objection whatever to the questioning by the trial judge. See 88 C.J.S. Trial § 118, p. 240. It should be noted that there was no jury to be influenced by the manner of questioning. It seems obvious that the questioning was for the purpose of aiding the trial judge in arriving at the truth. We find no reversible error in his questioning of appellant. 53 Am.Jur., Trial, § 75, p. 74; 3 Am.Jur., Appeal and Error, §§ 1052-1056, pp. 604-606. Cf. Kissic v. State, 266 Ala. 71, 74, 94 So. 2d 202; Anderson v. State, 35 Ala.App. 111, 117, 44 So. 2d 266.
The decree appealed from is due to be affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | February 19, 1959 |
c522a338-299d-4c9a-81e5-faf511946e9b | Green v. Mutual Steel Company | 108 So. 2d 837 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 837 (1959)
Isaac GREEN et al.
v.
MUTUAL STEEL COMPANY, Inc.
6 Div. 288.
Supreme Court of Alabama.
January 15, 1959.
Rehearing Denied February 19, 1959.
*838 Silberman & Silberman and Victor H. Smith, Birmingham, for appellants.
Kingman C. Shelburne, Birmingham, for appellee.
LAWSON, Justice.
This is an appeal from a decree overruling demurrer to a bill in equity.
The bill prays for injunctive relief, temporary and permanent. Grounds of demurrer were addressed to the bill as a whole and to "that part or phase of said bill which seeks a temporary injunction." The decree of the trial court is general, no reference being made therein to the so-called aspect or phase to which grounds of demurrer were addressed. Under our holding in the case of Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749, our review is limited to those grounds of the demurrer addressed to the bill as a whole which are argued in brief of appellant. Mangham v. Mangham, 264 Ala. 354, 87 So. 2d 818, and cases cited.
The argued grounds of the demurrer addressed to the bill as a whole are all to the same effect, i. e., there is no equity in the bill in that it appears therefrom that the complainant has an adequate remedy at law.
The bill alleges that complainant owns and is in possession of certain described real property situate in the "Bessemer Cut-off" in Jefferson County, which real property is generally referred to in the bill as "Lot 22."
The material averments of the bill are as hereafter set out:
"2. * * *
This court is committed to the equitable right of injunction by the owner of land in possession when the trespass consists in the destruction of the substance of *839 a material portion of that which is its chief value, or trespass is of a continuous or repeated nature, so that actions at law would be inadequate. Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559, and cases cited. There being no question of disputed title, or at least that equitable relief is not barred on that ground, injunction is the proper remedy to restrain trespasses where the remedy at law is inadequate because of the nature of the injury or because of the necessity of multiplicity of actions to obtain redress. Lewis v. Hicks, 264 Ala. 440, 87 So. 2d 867, 60 A. L.R.2d 307.
A landowner has the inherent right, in the absence of any valid statute, or contractual restriction to the contrary, to erect a boundary fence along the division line of his property. Dyba v. Borowitz, 136 Pa. Super. 532, 7 A.2d 500; Good v. Petticrew, 165 Va. 526, 183 S.E. 217; Willing v. Booker, 160 Va. 461, 168 S.E. 417.
According to the averments of this bill, the complainant was being denied that right by the respondents and others and we are of the opinion that the averments of the bill are sufficient to warrant injunctive relief to prevent repeated trespasses by respondents which would prevent complainant from protecting "its plant and products, inventory and supplies located thereon from theft or other loss or damage." In our opinion the bill shows an injury occasioned by repeated trespasses which would require a multiplicity of actions at law in order for complainant to secure complete pecuniary compensation; hence the remedy at law is inadequate. Lewis v. Hicks, supra.
While we have found no case, and none has been cited, expressly deciding the question before us, we have found several cases from other jurisdictions recognizing that a court of equity at the instance of a landowner may enjoin the destruction of fences already constructed. We feel that the holdings in those cases are supportive of our views herein expressed. Carpenter v. Gwynn, 35 Barb, N.Y., 395; McPike v. West, 71 Mo. 199; Pohlman v. Lohmeyer, 60 Neb. 364, 83 N.W. 201; Lynch v. Egan, 67 Neb. 541, 93 N.W. 775. In Pohlman v. Lohmeyer, supra [60 Neb. 364, 83 N.W. 201], it was said: "It is argued that injunction will not lie, as plaintiff had a complete remedy at law to recover damages. It was shown that defendants tore down and destroyed the fence, and threatened to repeat it as often as plaintiff should restore the same. This threatened continued trespass was sufficient to give a court of equity cognizance of the cause, though the defendants may not be insolvent. * * *"
We hold that there is no merit in the argued assignments of error addressed to the bill as a whole and that the decree of the trial court should be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 15, 1959 |
55cb7c70-5cb5-45e5-9ef7-3ed8800dfbc5 | Strickland v. Lambert | 109 So. 2d 664 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 664 (1959)
W. C. STRICKLAND et al.
v.
Douglas LAMBERT.
8 Div. 938.
Supreme Court of Alabama.
February 19, 1959.
Beasley & McCutchen, Tuscumbia, for appellants.
Jesse A. Keller, Florence, for appellee.
COLEMAN, Justice.
Appellee, complainant below, filed bill of complaint seeking to abate an alleged nuisance consisting of the raising and keeping of chickens by appellants, respondents below, as described in the bill. From decree overruling demurrer, the respondents appeal.
Appellants argue only one proposition, to wit, that if the conduct alleged constitutes *665 a nuisance at all, it is a public nuisance, not a private one, and that the trial court erred in overruling those grounds of demurrer taking the point that the bill fails to allege that complainant has suffered from the alleged nuisance a special injury, real and distinct from that suffered by the public, and, therefore, under §§ 1084, 1086, Title 7, Code 1940, complainant is not entitled to maintain this suit.
Sections 1084 and 1086 recite as follows:
This court has said:
and also:
We think the allegations of the instant bill establish a private nuisance or a public one from which complainant suffers a special injury different in kind from that suffered by the public generally.
The bill alleges that complainant and respondents both own their respective dwelling houses situated in the City of Florence in an area zoned "B" residential; that complainant's home is located on the south side of Henson Drive, a public road, and that respondents' home is located on the north side of said Drive facing the complainant; that respondents raise and keep chickens on their aforesaid premises; "That Complainant, in the summer of 1955, inspected the premises of the Respondents and discovered that Respondents allowed the manure droppings from the thousands of chickens to accumulate and stand for days and weeks at a time; that the Respondents did negligently allow water to mix with said chickens' droppings and manure therefore making convenient breeding places for the said flies; that the said chicken droppings became several feet high before the Respondents would remove the same; that Respondents failed to spray or use any other proper preventive to abate the odor and said flies; and that Respondents on occasions would leave dead chickens lying about their premises and would burn chicken feathers on their said premises"; that in the summer of 1955, the odors from the poultry plant were manifest and permeated the entire area around complainant's home; that: "In fact the odors became so strong that it became impossible for the Complainant and his family to properly enjoy their meals, and they had periods of nausea and sickness due to said odors. The odors so increased during *666 the summer of 1955 that Complainant could not use and enjoy his back yard, and his children could not play in said yard for any appreciable length of time, because of the said odors. The Complainant was prevented from having guest(s) and friends to his house because of said odors; that the presence of flies soon became intolerable; that great swarms of flies stayed in and about the complainant's home and yards, and it was humiliating and embarrassing to the Complainant in attempting to entertain friends because of the presence of the flies and the said odor; that not only was there the odor of the manure and droppings of said chickens, but this was mingled with the odor of dead chickens and burnt feathers; that the flies present were not only the ordinary house flies, but larger and `green colored' or `blow flies' which stayed continually on the Complainant's premises; that this condition has become increasingly worse, both in the summer of 1956 and in the summer of 1957. * * *"; "That the Complainant in the summer of 1955 did complain to the Respondents about the condition of their premises, and Respondents refused to do anything about it. The Complainant and several of his neighbors did thereupon complain to the commissioners of the City of Florence, and to the Health Officials of Lauderdale County, and the said Commissioners did thereupon conduct a hearing in the City Hall of Florence in the summer of 1955 with the Respondents and the Complainant and several of the complaining neighbors in the neighborhood attending. At said hearing the Respondents did promise to spray and take the other necessary preventive measures to abate the odor and the presence of flies; however, the Respondents have not kept their promise in this regard, and have done nothing to abate the odor and the presence of said flies; that on numerous occasions since the summer of 1955 the health authorities of Lauderdale County, Alabama have visited the premises of the Respondents, and Respondents have promised on each occasion to take the proper measures to abate the odor and the said flies, and Respondents have further promised that they were going to move their chickens to a rural area near Cloverdale, Alabama, but the Respondents have failed and refused to carry out these promises. * * *"
With respect to a poultry production operation in the City of Tuscaloosa, this court said:
This court has sustained the granting of injunctions to abate nuisances consisting of emitting obnoxious odors and gases from a tobacco drying house. Hundley v. Harrison, 123 Ala. 292, 26 So. 294; a stable, Kyser v. Hertzler, 188 Ala. 658, 65 So. 967; and a sewer dump, City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A. 1918F, 1020.
City of Selma v. Jones, supra, was an appeal from decree overruling demurrer to a bill to abate a nuisance, which consisted of a sewer dump pile created and maintained near the premises of complainant. The bill in that case was filed by an individual. One ground of demurrer was:
This court held the demurrer correctly overruled and said:
In the instant case, according to the bill of complaint, the odors and flies emanating from respondents' poultry plant move onto complainant's land and into his home, thereby disturbing his comfort and endangering his health. The injury to complainant's comfort and the threat to his health in his home is an injury to his right to use and enjoy his property free from the odors and flies, and is an injury in which no one else participates, although other neighbors may suffer a like injury to enjoyment of their separate homes.
In Birmingham News Co. v. Little, 226 Ala. 642, 643, 644, 148 So. 398, Anderson, C. J., writing for the court said:
The law does not require that before a party can abate a nuisance he must show an injury which is unique to him. Neither the fact that the public authorities held a hearing on the matter, nor the fact that other neighbors suffer a like injury in enjoyment of their respective properties, operates to destroy the special character of the damage to complainant in enjoyment of his property.
It follows that the Circuit Court did not err in overruling the ground of demurrer insisted on in this appeal.
Affirmed.
SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | February 19, 1959 |
fc092a0b-878d-48cf-8c50-761075ba9e43 | Bell v. Pritchard | 139 So. 2d 596 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 596 (1962)
Euthema Allen BELL
v.
W. S. PRITCHARD.
6 Div. 439.
Supreme Court of Alabama.
March 29, 1962.
*597 Sam L. Reames, Birmingham, for appellant.
Pritchard, McCall & Jones and Victor H. Smith, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
The bill of complaint as amended, the answer and cross bill of respondent, tendered only one question, and that is, title to Lot 19 in Block 1, Roebuck Park Survey, in Jefferson County, Alabama, W. S. Pritchard was complainant in the court below and is the appellee here. Euthema Allen Bell was respondent in the court below and appellant here.
Appellee acquired fee simple title to certain acreage, including said Lot 19, by warranty deed from E. J. Reed and others in September 1926, and shortly thereafter divided the acreage.
Said Lot 19 was sold to the State of Alabama in 1930 for the 1929 taxes. In September, 1932, it was purportedly sold by the state, through state auditor, to one Lawler Watson, and the following month it was conveyed by statutory warranty deed by said Watson and wife to appellant, Euthema Allen Bell.
The appellant contends that she had been in such possession of the property as to make the "short statute of limitations" applicable. Sec. 295, Title 51, Code of 1940.
Complainant contends that the conveyance to Watson by the state auditor is void and that the short statute of limitations did not begin to run for failure to give notice to the owners which is required as a condition precedent under Sec. 316, Title 51, Code of 1940, and Sec. 3121, Code of 1923.
The case was tried on evidence heard ore tenus before the trial court, and the court rendered a decree in favor of W. S. Pritchard. From that decree, the respondent appealed to this Court.
Appellee moved to dismiss the appeal on the ground that the transcript of the record was not filed in this Court within *598 the time prescribed by Supreme Court Rule 37.
The decree of the lower court was rendered on November 14, 1958, by Hon. Robert C. Giles, one of the judges of the Tenth Judicial Circuit of Alabama. The appeal was perfected on May 7, 1959. On July 2, 1959, the appellant was granted a 30 day extension in which to file the transcript in this Court by Hon. W. A. Jenkins, Jr., another Circuit Judge of the Tenth Judicial Circuit. The transcript was filed in this Court on August 4, 1959, within the extended time. The appellee contends that the extension was not valid nor proper since it was not granted by the judge who tried the case and rendered the decree. Appellee insists that "trial judge" in Rule 37 of the Supreme Court Rules is to be interpreted to mean "the judge who tried the case and rendered the decree," and that he alone has authority to grant the extension. Rule 37 of the Revised Rules of the Supreme Court, 263 Ala. XXI, reads as follows:
We do not think the words "trial judge" in Rule 37 meant to restrict the authority to grant an extension solely to the judge who tried the case and rendered the decree. The courts are not controlled by the literal meaning or language of a statute but by its spirit and intention. Hawkins, Judge, v. City of Birmingham, 239 Ala. 185, 194 So. 533; Davis & Co. v. Thomas, 154 Ala. 279, 45 So. 897.
Such a construction as advanced by the appellee would not be in accord with the spirit and intent of Rule 37. In the first place, the jurisdiction of a circuit judge is coextensive with the state; he has authority and power in one county as in another, and every person and all property within the confines of the state come within the influence of his authority. State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473; City of Mobile v. Grayson, 220 Ala. 349, 125 So. 221, and Cook v. State, 269 Ala. 646, 115 So. 2d 101. So in the light of these decisions, one judge would have just as much authority to act on a matter as another unless it clearly appears to the contrary. Numerous jurisdictions have interpreted the words "court" and "judge" to be synonymous and that they will be construed as such whenever necessary to carry into effect the obvious intent of the statute, and whether the act is to be performed by the judge or the court is to be determined by the character of the act. See Words and Phrases for judicial constructions and definitions of "court," "judge," and "trial judge." In James A. Head & Co. v. Rolling, 265 Ala. 328, 336, 90 So. 2d 828, 834, we said, in respect to the interpretation of "the judge who rendered the decree," as it appears in Equity Rule 62:
The foregoing has application here. We construe "trial judge" in Rule 37 to mean any judge of the court when the judge who sat and determined the case is not available. There is nothing to show whether the judge who tried the case was available or not. Nevertheless, we have before us an extension granted and signed by a circuit judge, and it appears from the extension order that the appellant had good cause for an extension. The contrary not appearing, we will presume that Judge Giles was not available and that Judge Jenkins acted within his authority. Therefore, since we find the extension valid and *599 proper and the transcript being filed within the extended time, the motion to dismiss is denied.
The complainant in his bill of complaint alleged "that there was no other suit pending to test title to the land." Appellant contends that the complainant failed to prove this averment and that his failure to prove such an averment is fatal to his relief.
Complainant's evidence does not show whether or not another suit was pending, but the appellant made no answer whatever to this averment. Equity Rule 25, Title 7, Code 1940, declares that averments not denied, nor confessed and avoided, shall be taken as admitted. Also, the appellant in his answer should state clearly the defenses he intends to avail himself of, and he cannot avail himself of any defense which is not stated in his answer, even though it should appear in evidence. Wood v. Pebbles, 121 Ala. 100, 25 So. 723; Umphrey v. Barfield, 238 Ala. 11, 189 So. 64; General Construction Co. v. Tenn. Valley Sand & Gravel Co., 232 Ala. 623, 169 So. 319; Tilley's Ala. Equity Pleading & Prac., Sec. 96. Therefore, since the appellant did not deny and put in issue the allegation of no other suit pending, it is taken as admitted and proven. The case of Wisener v. Trapp, 216 Ala. 595, 114 So. 196, cited by appellant, is not in point for the reason that in that case the answer denied the allegation that no other suit was pending.
Appellant's main contention of error is that the "short statute of limitation," or the three-year statute, barred the appellee's rights. Sec. 295, Title 51, Code of 1940, reads:
Section 295, supra, applies to proceedings in equity as well as in ejectment actions; it applies to void tax sales as well as to valid sales; it applies when the land is purchased from the state as well as in instances where the purchase is made from the tax collector. Odom v. Averett, 248 Ala. 289, 27 So. 2d 479; Singley v. Dempsey, 252 Ala. 677, 42 So. 2d 609; Quinn v. Hannon, 262 Ala. 630, 80 So. 2d 239.
Sec. 295, supra, has been held not to run until the purchaser takes adverse possession of the land and is entitled to demand a deed therefor. Odom v. Averett, supra; Lathem v. Lee, 249 Ala. 532, 32 So. 2d 211; Singley v. Dempsey, supra.
There was no evidence that notice to the former owner of the land was given as required by Sec. 3121, Code 1923. Appellee argues that under the holding in Harton v. Enslen, 182 Ala. 408, 62 So. 696, this notice was a condition precedent to the right of the state auditor to make a sale and conveyance, and since there was no notice given the original owner, the appellant had no right to a deed, and since she was not entitled to a deed, the short statute of limitation never ran. We do not think this argument is sound or applicable to the facts in this case, since, in fact, the purchaser and his grantee had deeds to the land in question. The statute can run in favor of a purchaser even though he has no deed if he is entitled to one and in possession. Singley v. Dempsey, supra. Here, the purchaser has a deed and there is no question of him having to obtain one. In numerous cases dealing with Sec. 295, supra, this Court has held that even if the tax deed is void, it gives color of title, and if the purchaser takes adverse possession of the land for the requisite period of time, then the statute bars the action. Pugh v. Youngblood, 69 Ala. 296; Long v. Boast, 153 Ala. 428, 44 So. 955; Morris v. Mouchette, 240 Ala. 349, 199 So. 516; Moorer v. Malone, 248 Ala. 76, 26 So. 2d 558; Lathem v. Lee, supra; Merchants *600 Nat. Bank of Mobile v. Lott, 255 Ala. 133, 50 So. 2d 406; Pfaffman v. Case, 259 Ala. 411, 66 So. 2d 890.
Therefore, the question presented reduces itself to one of fact. Are the required elements of adverse possession proven?
Appellee argues that the evidence shows that possession by the appellant was permissive, that is, that appellee agreed in 1935 to let the appellant occupy Lot 19, and that appellant was to pay the taxes on it. Appellant replies with the argument that there was never such an agreement and that her possession was hostile and not permissive. Appellant claims she went into possession when she acquired her deed from the tax purchaser in 1932, and that she has held uninterrupted possession up to the filing of this suit by appellee.
The evidence showed that both appellant and appellee assessed and paid taxes on the land. The evidence also shows that appellant granted a power line permit to the Alabama Power Company in 1940; that she built a house on the land in 1941. There is some uncertainty as to whether it was a new structure or remodeling of the house which was already on the land at the time the purported agreement was made. Appellant also rented the premises up until the house burned in 1952. The insurance company recognized the appellee as the person entitled to recover for the loss by fire until he released his rights. The appellee also rented the premises and posted the land with "No Trespassing" signs. Appellee claims he did not know that appellant was claiming hostile to him until about ninety days before filing this suit, and that he was in possession of Lot 19 at the time he filed suit.
The burden of proving the possession adverse; that it was taken and held under a claim of title hostile to the title of the true owner, rests upon the party asserting it. Dothard v. Denson, 72 Ala. 541; Stewart v. Childress, 269 Ala. 87, 111 So. 2d 8; White v. Williams, 260 Ala. 182, 69 So. 2d 847. This last-cited case also gave expression to the principle that a permissive possession does not ripen into title unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim. In further illucidating the principle, it was held: limitations begin to run from the date of notice of hostility but are not operative before hostility is shown, and whether the possession was with the intention of claiming title is generally held to be a question of fact; a permissive occupant cannot change his possession into adverse title no matter how long possession may be continued, in absence of a clear, positive and continuous disclaimer and disavowal of title of true owner brought home to latter's knowledge, there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile. See Lecroix v. Malone, 157 Ala. 434, 47 So. 725.
In order to work a divesture of title by adverse possession, all the essential elements must be proven by the stated measure of proof, and that proof must show that there has been an actual occupancy, clear, definite, positive, notorious, continuous, adverse and exclusive for the requisite period under claim of right of the definite tract involved. Spradling v. May, 259 Ala. 10, 65 So. 2d 494; Stewart v. Childress, supra.
We do not think appellant sustained the burden of establishing adverse possession so as to start operation of the statute of limitations. The testimony taken orally before the court below was in conflict, and having considered it very carefully, we are persuaded that the trial judge was authorized to conclude from the evidence adduced that the possession of the appellant was permissive and that there had not been such a repudiation of the permissive *601 possession as to afford notice of an adverse claim. There were numerous facts which raised opposing inferences to be finally resolved by the decree of the trial judge who heard the witnesses testify and whose conclusion has the force and effect of a jury verdict. According the usual presumption of correctness to the conclusion attained by him, we would not be warranted in disturbing his finding. Cook v. Benton, 250 Ala. 259, 33 So. 2d 877; McLeod v. Willard, 257 Ala. 672, 60 So. 2d 692; Parrish v. Davis, 265 Ala. 522, 92 So. 2d 897; Lewis v. Hicks, 264 Ala. 440, 87 So. 2d 867, 60 A.L.R.2d 307. For the same reasons as set out above, the "ten year statutes" are of no avail to the appellant. Sec. 20, Title 7, Code 1940, and Sec. 828, Title 7, Code 1940.
The case is due to be, and is, affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | March 29, 1962 |
521d106c-dfd3-4933-89aa-95163a967a09 | Boise Cascade Corporation v. Lee | 286 So. 2d 836 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 836 (1973)
BOISE CASCADE CORPORATION, a corporation, and George Newton Roberts
v.
Donald Wayne LEE, suing as Administrator of the Estate of Martha Mae Lee.
SC 382.
Supreme Court of Alabama.
December 6, 1973.
*837 Smith & Sturdivant, Huntsville, for appellants.
Watson & Fay, Huntsville, for appellee.
BLOODWORTH, Justice.
Defendants appeal from a $175,000 judgment rendered against them in a suit for the wrongful death of plaintiff's intestate sustained as a result of a collision between an automobile in which plaintiff's intestate was a passenger and a tractor truck belonging to defendant, Boise Cascade Corporation, and being operated by its employee, defendant George Newton Roberts. We affirm.
At the time of the accident, plaintiff's intestate, Mrs. Martha Mae Lee, was a passenger in an automobile driven by her son, Donald Wayne Lee, traveling at a moderate speed south on U. S. Highway 11 from Fort Payne, Alabama. A second car driven by Mrs. James Williams was traveling north on U. S. 11 on the afternoon of the accident. Mrs. Williams testified that she first observed defendants' truck about 1¼ miles south of the accident scene, as it was fast approaching U. S. 11 ahead of her from a side road. Defendants' truck stopped and allowed her to pass. Defendants' truck then pulled out onto Highway 11 heading north, closely following the Williams automobile. About one block before the location where the accident occurred, Mrs. Williams slowed down and signaled for a left turn. Defendant Roberts applied his brakes but was unable to stop. Defendants' truck veered first to the right then to the left into the southbound lane where it collided with the Lee's car, killing Mrs. Lee. Defendant Roberts estimated his speed just before the accident at 50 m.p.h. The location of the accident scene was within the city limits of Fort Payne and was posted as a 35 m.p.h. zone, although there was conflicting testimony as to whether there was a sign indicating the speed limit between the point where defendants' truck entered the highway and the point of impact.
Plaintiff's original complaint was in two counts; the first count alleging negligence and the second count alleging wantonness. Defendants' demurrer to this complaint was never ruled upon. Plaintiff's complaint was amended twice, the complaint as last amended containing only Count I averring negligence. The parties pleaded in short by consent. During the trial, defendants filed four special pleas: plea one raised the general issue; pleas two and three asserted the defense of a mechanical failure of the defendants' truck; and plea four asserted the defense of a sudden emergency being proximately caused by a malfunction of the braking system of the defendants' truck. The trial court granted a motion by plaintiff to strike pleas one *838 through four, but expressly stated defendants had the right to present any defense (averred under the special pleas) under the plea in short.
When the case was called for trial, prior to qualifying the jury venire and out of its hearing, counsel for defendants brought to the court's attention that counsel for plaintiff planned to make inquiries on voir dire regarding corporations alleged to be subsidiaries or divisions of defendant Boise Cascade. Defendants argued that such inquiries were irrelevant and prejudicial. Defendants, however, made no formal motion to exclude such questions nor made any objections thereto during voir dire by plaintiff.
At the conclusion of the trial, the jury returned a verdict of $175,000 in favor of the plaintiff and against both defendants. Defendants' motion for new trial was denied.
Defendants have made 22 assignments of error. The first assignment is based upon the trial court's failure to rule upon defendants' demurrer to Counts I and II of the complaint. Assignment of error number 2 is addressed to the trial court's overruling defendants' objection to plaintiff's inquiries on voir dire relating to various corporations alleged to be affiliates or subsidiaries of Boise Cascade. The third assignment of error is based upon the trial court's sustaining objection to the following question propounded to defendant Roberts: "Who is responsible, under the lease, to maintain the truck mechanically?" The fourth assignment of error contends the trial court erred in sustaining plaintiff's motion to strike defendants' pleas one through four. Assignments of error 5-11 claim error in the giving of certain portions of the court's oral charge to the jury, viz: relating to negligence on the grounds that said instructions failed to mention the requirement of proximate cause and implied that the court had found defendants negligent. Assignment of error number 12 is founded upon the erroneous giving of a refused charge then withdrawal of same. Assignment of error number 13 complains of the giving of an oral charge concerning driving with actual or constructive knowledge of defective brakes as constituting negligence on the grounds that said charge was ambiguous. Assignments of error 14-21 complain of the trial court's refusal to give to the jury certain written charges requested by the defendants. Finally, in assignment of error number 22, defendants complain of the trial court's overruling defendants' motion for a new trial on the grounds that the jury was prejudiced by voir dire inquiries regarding defendant Boise Cascade's affiliates and subsidiaries, the trial court's alleged failure to properly instruct the jury on proximate cause, refusal of defendants' charges, the alleged returning of a quotient verdict by the jury, and the alleged excessiveness of the verdict.
We proceed to consider these assignments of error ad seriatim.
Assignment of Error 1. There is no reversible error in the trial court's failure to rule upon defendants' demurrers. Evans v. Evans, 264 Ala. 2, 84 So. 2d 337 (1955). Moreover, this assignment was not argued; therefore, it is waived. Roan v. Smith, 272 Ala. 538, 133 So. 2d 224 (1961).
Assignment of Error 2. No objection was made by counsel for defendants, either at the side-bar conference with the court or during voir dire, to the questions posed by plaintiff's counsel on voir dire respecting various corporations claimed to be affiliates of or subsidiaries of or merged with defendant Boise Cascade. We have carefully read that part of the transcript pertaining thereto, and the only objection we find was to the proffer of a Standard & Poor's list of corporations by plaintiff. This objection was overruled; nevertheless the list was not introduced. No error is claimed on account of the overruling of this latter objection. There being no objection, nor any motion *839 to exclude nor any motion in the nature of a motion in limine, there is no ruling to review. Only adverse rulings of the trial court are subject to assignments of error and review on appeal. Tyson v. United States Pipe & Foundry Co., 286 Ala. 425, 240 So. 2d 674 (1970).
Assignment of Error 3. This question was objectionable, if for no other reason, because the witness' testimony as to the terms of the lease would not be the "best evidence" as to the contents of the lease. The court's ruling was correct. See cases collected at Alabama Digest, Evidence, § 160-70.
Assignment of Error 4. The trial court's ruling in granting plaintiff's motion to strike defendants' special pleas one, two, three and four was without error. A plea in short had already been entered by the parties. The able trial judge, in granting plaintiff's motion, specifically stated he would permit defendants to present any defense available under the special pleas on the plea in short. We fail to see what possible harm could be done to defendants under such a ruling. Garner v. Morris, 187 Ala. 658, 65 So. 1000 (1914).
Assignments of Error 5-11. Each of these assignments attack certain portions of the court's oral charge relating to negligence and damages for the failure to mention, in each instance, proximate cause. We can see no reversible error here for at least two reasons. In the first place, the trial judge acceded to the request of defendants' counsel. He did what he was asked to do, namely to clarify the relationship between negligence and proximate cause. The record discloses the following request by counsel, viz:
After a colloquy and other exceptions, the court replied, viz:
There is yet another reason why this does not constitute reversible error. We have examined the record and find in each instance the trial court was simply defining negligence and was not, on any of these instances, defining proximate cause. Yet, an inspection of the record discloses that on at least seven other occasions during the oral charge the trial judge did instruct on the issue of proximate cause.
None of the cases cited by appellant for reversal on this issue are apt, for none dealt with the oral charge. In each of them reversal was based on the giving of a written charge for plaintiff or defendant which omitted the element of proximate cause. These cases are: Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972); Swindall v. Speigner, 283 Ala. 84, 214 So. 2d 436 (1968); Mobile City Lines, Inc. v. Holman, 273 Ala. 371, 141 So. 2d 180 (1962); Matheny v. Petersen, 276 Ala. 478, 163 So. 2d 635 (1964); Terry v. Nelms, 256 Ala. 291, 54 So. 2d 282 (1951).
*840 Assignment of Error 12. This assignment is based on the giving and then withdrawing of plaintiff's written requested charge 10. Defendants complain that this instruction was misleading, even though defendants concede the trial court withdrew it. No authority is cited. The record discloses the court, after reading the charge, stated as follows:
We find no reversible error here. The trial judge, having inadvertently read the charge, proceeded immediately to withdraw it as we think he had a right to do.
Assignment of Error 13. Here, defendants' complaint is to that portion of the court's oral charge on defective brakes, contending it is ambiguous and confusing. Since no authority is cited nor is it pointed out in what respect it is ambiguous and misleading, we think this assignment is not adequately argued in brief. Silavent v. Silavent, 281 Ala. 58, 198 So. 2d 785. Moreover, we have reviewed that part of the oral charge referred to, as well as the entire charge and each of the given charges for plaintiff and defendants. We will not say that the giving of this charge constituted reversible error.
Assignments of Error 14-21. These assignments charge error in refusing to give certain written charges requested by defendants. Having carefully reviewed each charge, as well as the entire oral charge and other given charges, we are satisfied each charge was properly refused as being "covered" by other given charges or the oral charge of the court.
In conclusion, we think we have covered each assignment of error argued, except that respecting the excessiveness of damages and quotient verdict. As to the latter contention, it is not adequately argued in brief to merit our consideration. As to the former contention, respecting the allegedly excessive damages, we have carefully reviewed the evidence and considering the presumptions attending the trial court's ruling on this point in denying motion for new trial, we find no reversible error on this ground.
As this court so recently pointed out in General Telephone Company of Alabama v. Cornish, 195 Ala. 293, 280 So. 2d 541 (1973), wherein this court affirmed a judgment for wrongful death for $150,000 holding it was not excessive, viz:
It is thus that we affirm the judgment of the trial court.
Affirmed.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | December 6, 1973 |
6ad91ddd-944c-489d-b45e-c6e4d9199bfe | Alabama Highway Express, Inc. v. LOCAL 612, ETC. | 108 So. 2d 350 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 350 (1959)
ALABAMA HIGHWAY EXPRESS, INC., a corporation,
v.
LOCAL 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, an Unincorporated Association, et al.
6 Div. 91.
Supreme Court of Alabama.
January 8, 1959.
*352 Lange, Simpson, Robinson & Somerville, Jas. A. Simpson, Robt. Mc.D. Smith, Birmingham, for appellant.
Coretti & Newsom, Birmingham, and Hawkins & Rhea, Gadsden, for appellees.
SIMPSON, Justice.
This is an appeal from a final decree of the Circuit Court of the Tenth Judicial Circuit, dissolving a temporary injunction theretofore in effect and dismissing the cause on the ground that the courts of this state lack jurisdiction of the subject matter. There were several complainants beside the appellant, Alabama Highway Express, but only that complainant has appealed.
Complainants' verified bill of complaint, praying for relief against threatened picketing and other conduct, alleged to be for an unlawful purpose, was presented to the lower court and on the giving of an injunction bond in the amount of $1,000, a temporary writ was issued by the Register.
The bill alleges: Complainant, Alabama Highway Express, Inc., is a motor carrier for hire and carries on both intrastate and interstate business. It operates on a so-called "lease operator" system. Under this system, the complainant owns no trucks, trailers, or other vehicles which are devoted to its over-the-road transport business; all of the tractors used in hauling freight in complainant's motor transport business are owned by others with whom it has entered into certain lease agreements under which such owners are obligated to furnish tractors and drivers therefor to carry out such portion of complainant's business as may be assigned to them. The owners of such tractors are paid a percentage of the revenue earned from trips made with such equipment, driven by the drivers employed by the owners thereof. Each unit is driven or operated by either the owner or an employee of the owner. Complainant pays no wages or salaries to the drivers of the units leased. These drivers are paid by the owners of the equipment and are responsible directly to them. The lease agreements, which are all identical except for data which are necessarily variable between each party to the lease, solely establish the legal relationship between complainant and the equipment owners and drivers.
Joined as complainants are various owners of trucking equipment leased to Alabama Highway Express, owner-drivers, and drivers employed by such owners. Respondents are Local 612 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, with its principal office in Birmingham, Alabama; the International Brotherhood itself, with principal office at Washington, D. C.; and M. R. Sherman, the business agent of Local 612 and a member and agent of the International Union.
Respondents are alleged to have presented to complainant on a stated day union contracts and to have demanded that they be executed by complainant upon penalty of having its places of business picketed. Complainant had not previously entered into any labor agreement of any kind, and no union had been recognized as the bargaining agent for the drivers of the vehicles leased by the complainant. But, it was alleged, complainant did not object to any of the drivers being members of any union and had affirmatively made such fact known to the drivers. One-third of the drivers of its leased equipment were members of respondent labor unions. The bill avers, however, that a majority of the drivers were not members of any labor union or organization, and furthermore, that an overwhelming majority of the drivers did not desire to join Local 612 or any other *353 labor union. It was averred that all or substantially all of the drivers had expressed the preference that complainant not enter into any agreement which would require that the drivers become members of any union. Complainant further averred that it had at no time discriminated against any union member drivers, either directly or indirectly.
In each of the two contracts presented it was provided that complainant shall recognize respondent unions or their agencies as exclusive bargaining representatives for all of the persons driving equipment leased by complainant and for owner-lessors thereof. The agreement further provided:
The contract further provided:
Respondent Sherman, business agent for Local 612 and member and agent of the International Union, notified the complainant's president that a certain day would be the deadline for accession to the union's demands. Picketing was to begin on that morning unless the contract requested was accepted by the complainant.
Complainants allege in the bill that a contract containing such provisions is in violation of the Alabama Right to Work Law (Section 375(1) et seq. of Title 26, Code 1940) and that the picketing would therefore be for an unlawful purpose. It is further alleged that the threatened acts are imminent and that unless enjoined by the Circuit Court the complainants will sustain irreparable injury. There is no allegation of violence, threats of violence, mass picketing, or unannounced work stoppages.
Attached to the bill as an exhibit was a typical lease agreement. Also attached to the bill as exhibits were affidavits of the individual complainants joined with the Express Company relative to their lease relationship and methods of operation, etc.
Upon the ex parte presentation of the verified bill, with the supporting affidavits, several days before the stated deadline, the Circuit Court ordered the issuance of a temporary injunction. Several days thereafter respondents, appearing specially, filed a plea in abatement attacking the jurisdiction of the state court on the ground that the allegations of the bill placed the case within the field exclusively reserved to the National Labor Relations Board by the Labor Management Relations Act of 1947 (29 U.S.C.A. § 141 et seq.), commonly known as the Taft-Hartley Act. The plea closes with a prayer that the cause be abated and dismissed and that the temporary injunction or restraining order be dissolved.
Some time later, a decree was rendered, which recited that the cause was "submitted for decree upon the application of the complainants for a temporary injunction upon the bill of complaint, the plea in abatement, as amended, of the respondents, the several supporting affidavits filed on behalf of the complainants and the respondents, respectively, and the stipulation of counsel that complainants are engaged in interstate commerce as defined by the Federal Labor Management Relations Act." The decree proceeded to deny the application *354 for a temporary injunction and to set aside the fiat previously issued. The decree further recited that the "cause being further submitted on motion of the complainants to test the legal sufficiency of respondents' amended plea in abatement, and upon the supporting affidavits of the respective parties offered proof and disproof of said amended plea, and upon consideration thereof, the Court is of opinion that said amended plea is legally sufficient and supported by the proof and said stipulation." It was then decreed by the court that the cause be dismissed.
There are ten separate assignments of error, but they all present one major question: Did the Circuit Court err in determining it did not have jurisdiction of the subject matter?
It is the contention of appellant that where independent contractors, and not employees, are involved, the National Labor Relations Board has no jurisdiction and the state courts are therefore left free without limitation by the so-called "preemption" doctrine. It is the further contention of appellant that even if the lease operators in this case were to be considered "employees", the state courts would still have jurisdiction of this case since the matter of compulsory union contracts has been expressly left to the states by Section 14(b) of the Taft-Hartley Act [29 U.S.C. A. § 164(b)].
The verified bill of complaint with the attached affidavits and the plea in abatement to the jurisdiction of the court were the only pleadings in the cause. Every reasonable intendment, not contradicted by the face of the pleadings, will be made in favor of the jurisdiction of the Circuit Court. Hence a plea in abatement to the jurisdiction must allege facts which exclude every condition under which jurisdiction may be lawfully exercised by that court. Atlantic Coast Line R. Co. v. Ballard, 202 Ala. 354, 80 So. 436.
The trial court apparently believed that the power to determine jurisdiction in a case of this sort had been laid exclusively in the National Labor Relations Board. And on oral argument counsel for appellees contended that whether the lease operators in this case were in fact "employees" or "independent contractors", a matter to be discussed later, was first to be determined by the N.L.R.B.that the courts of this state may not decide this question for themselves. It would seem that this position is still urged by appellees in their supplementary brief filed subsequent to the oral argument.
But the authority is clear to the effect that every court of general jurisdiction has judicial power to determine the question of its own jurisdiction. Stoll v. Gottlieb, 305 U.S. 165, 59 S. Ct. 134, 83 L. Ed. 104; Texas & Pacific Railway Co. v. Gulf, Colorado & Santa Fe Railway Co., 270 U.S. 266, 46 S. Ct. 263, 70 L. Ed. 578; Ex parte Board of Education of Blount County, 264 Ala. 34, 84 So. 2d 653; Crump v. Knight, 256 Ala. 601, 56 So. 2d 625; Ex parte Union Planters Nat. Bank & Trust Co. of Memphis, Tenn., 249 Ala. 461, 31 So. 2d 596; Ex parte Textile Workers Union of America, 249 Ala. 136, 30 So. 2d 247; Goodman v. Winter, 64 Ala. 410; 14 Am. Jur. 368, § 168.
We have received what we believe to be a relatively recent reaffirmation of this principle by the United States Supreme Court in the case of Amalgamated Clothing Workers of America v. Richman Brothers Co., 348 U.S. 511, 75 S. Ct. 452, 458, 99 L. Ed. 600, which involved the doctrine of federal preemption, where Justice Frankfurter, speaking for the Court, observed:
This conclusion was likewise reached by the Supreme Court of Texas in Ex parte Twedell, Tex., 309 S.W.2d 834, decided in January of 1958, on the authority of the Richman Brothers case, after a detailed discussion of the cases of Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S. Ct. 598, 1 L. Ed. 2d 601; Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 427, A. F. L. v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S. Ct. 604, 1 L. Ed. 2d 613; and San Diego Building Trades Council v. Garmon, 353 U.S. 26, 77 S. Ct. 607, 1 L. Ed. 2d 618.
Appellees' plea in abatement invoking the doctrine of preemption is thus pleaded:
The trial court sustained the sufficiency of the plea on that theory. Appellant, on the contrary, contended strenuously that the entire field of labor management relations has not been preempted by the federal legislation; that there remains a substantial area within which states may act; that regulation of the activity complained of in this case is reserved to the states by an express declaration of Congress. After a careful consideration of recent authority and upon a reasonable construction of the Labor Management Relations Act, we find ourselves in agreement with the appellant.
The United States Supreme Court has observed the general fact that Congress has not seen fit in either the National Labor Relations Act or the Labor Management Relations Act "to declare either a general policy or to state specific rules as to their effects on state regulation of various phases of labor relations over which the several states traditionally have exercised control." International Union, U. A. W. A. A. F. of L., Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S. Ct. 516, 521, 93 L. Ed. 651.
But the general theory of the Federal cases dealing with the subject is that "the national Labor Management Relations Act * * * leaves much to the states, though Congress has refrained from telling * * * how much". Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776 (A. F. L.), 346 U.S. 485, 74 S. Ct. 161, 164, 98 L. Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct 480, 99 L. Ed. 546.
It is also recognized that the solution to the Federal-State jurisdictional problem is not always an easy one and that it must necessarily be dealt with on a case-to-case basis. Weber v. Anheuser-Busch, Inc., supra.
As a general proposition the decisions of the Federal Courts have established the principle that where conduct is characterized by the Federal legislation as an "unfair labor practice", the state has no concurrent jurisdiction to prohibit or in any way deal with the same conduct, absent exceptional circumstances such as violence, mass picketing, etc., even though a state's substantive law and its remedies may be consistent with the Federal Act. Anheuser-Busch and Garner cases, supra.
And it may be that the conduct here alleged would be within the preempted field relegated exclusively within the jurisdiction of the N.L.R.B. were it not for the impact of the state's Right to Work law on this general principlea matter which we will now discuss.
The gravamen of the bill is that the contract demanded by the respondents of the *356 complainant includes a Union shop clause, which is in contravention of the State's Right to Work law (Section 375(1) et seq. of Title 26, Code 1940), and that the respondents will cause the complainant's places of business to be picketed for the purpose of coercing the complainant to execute the contract in violation of the laws and public policy of the State of Alabama. The bill further alleges that such purpose is, on the grounds alleged therein, unlawful. Section 375(2) of the Alabama Right to Work Law provides:
Section 375(3) adds the following provision:
We are confronted then with the question, whether threatened peaceful picketing which is for a purpose unlawful under the Right to Work Law of the State falls within the protective scope of Section 7 of the Federal Act.
Section 7 of the Labor Management Relations Act provides:
Section 8(a) (3) mentioned in the quoted section authorizes the execution of a union shop agreement pursuant to certain qualifications listed therein. However, these sections must be considered in pari materia with Section 14(b) of the Act, which reads:
Congress has therefore unequivocally expressed its intention to leave to what is left of states' sovereignty in the field of interstate labor relations the power to either permit or prohibit contracts containing union security provisions requiring membership in a labor organization as a condition of employment. The Congressional intent in enacting Section 14(b) clearly appears in the Conference Committee Report, House Report No. 510, dated June 3, 1947 (U.S.Code Congressional Service, 80th Congress, First Session, 1947, p. 1166), where the following appears:
This principle is reiterated by Justice Frankfurter, who, speaking for the Court, in Algoma Plywood & Veneer Co. v. Wisconsin Emp. Relations Board, 336 U.S. 301, 69 S. Ct. 584, 591, 93 L. Ed. 691, stated:
We, therefore, hold upon general principle and sound authority [Local Union No. 10, United Ass'n of Journeymen, Plumbers & Steamfitters, et al. v. Graham, 345 U.S. 192, 73 S. Ct. 585, 97 L. Ed. 946; Algoma Plywood & Veneer Co. v. Wisconsin Emp. Relations Board, supra; Minor v. Building and Construction Trades Council, N.D., 75 N.W.2d 139; and Pleasant Valley Packing Co., Inc. v. Talarico, 5 N.Y.2d 40, 177 N.Y.S.2d 473, 152 N.E.2d 505], that the state possesses jurisdiction to enjoin picketing for an unlawful purpose, although peaceful, when in contravention of the public policy as declared in the State's Right to Work Law.
The plea in abatement, as amended, avers that the subject alleged in the instant case is regulated by Section 8(b) (1) and Section 8(b) (4) of the Labor Management Relations Act. We do not believe that the plea can be sustained on such a theory. Regardless of any technical construction which might be placed on these provisions of the Act, pertaining to union security agreements authorized under the federal act, and of any doubts concerning the applicability of other relevant provisions of the Taft-Hartley Act to the case at bar, it is clear that Section 14(b) preserves to the states jurisdiction to act in this narrowly defined field, when they have so legislated.
It results as our conclusion that the lower court was in error in holding the plea in abatement to the jurisdiction legally sufficient and dismissing the cause for lack of jurisdiction.
But there is yet another reason which is by no means mere dictum (Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So.2d 165)which must require a reversal of the decree. The discussion to this point has assumed that the respondents in this cause are "employees" within the meaning of the Labor Management Relations Act and are entitled by virtue of that designation to invoke the exclusive jurisdiction of the National Labor Relations Board when the proper circumstances exist. If the coercive effect of the picketing threatened is not aimed at "employees", there can be no unfair labor practice under the Federal Act. National Labor Relations Board v. Nu-Car Carriers, Inc., 3 Cir., 189 F.2d 756; Rubin v. American *358 Sportsmen Television Equity Soc., 40 Cal. 2d 412, 254 P.2d 510; Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L. and Bernard Rosenberg, 107 N.L.R.B. 299; 29 U.S.C.A. § 158(b) (1).
Section 2(3) of the Act excludes any individual having the status of an independent contractor from the definition of the term "employee". Appellant has at all times insisted that these lease-operators are not employees, and the bill of complaint has characterized them as independent contractors.
In United States v. Silk, 331 U.S. 704, 67 S. Ct. 1463, 1471, 91 L. Ed. 1757, which affirmed the case of Harrison v. Greyvan Lines, Inc., 7 Cir., 156 F.2d 412, the Supreme Court declared:
The National Labor Relations Board applies the common-law "right of control" test in determining whether an individual is an independent contractor or an employee under the Act. "Under this test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end. The resolution of this question depends on the facts of each case and no one factor is determinative." Oklahoma Trailer Convoy, Inc., 99 N.L.R.B. 1019.
According to the allegations of the bill the complainant Highway Express owns no trucks or tractors, but all of the tractors used in hauling freight in its transport business are owned by the lease operators with whom complainant has entered into contracts for the lease of such vehicles. Ownership of the facilities to be used gives rise to an inference of that control over the manner of performance which is associated with the status of an independent contractor. Oklahoma Trailer Convoy, Inc., supra. The lease operators are paid a percentage of the revenue earned from hauls made with the equipment driven by the owners or the drivers employed by them. About one-half of the units leased by the complainant are driven by the owners themselves, and the other half are driven by employees of the owners. The fact that the owners decide whether to drive the trucks themselves or to employ others to do so is significant. Oklahoma Trailer Convoy, Inc., supra. The bill avers that the drivers employed by the lease operators are paid no wages or salary by the complainant but are paid by the owners. Such drivers are directly responsible to the owners. It is further alleged that the owners regularly withhold income tax according to Internal Revenue Regulations as well as social security payments required by law and that some of the owners are required to deduct unemployment compensation tax for such employees. Some of the lease operators are indebted in large sums for transportation equipment bought from vendors of such equipment.
*359 Limiting our conclusion to a construction of the Federal Act, we think and hold that the relationship of the complainant and the separate lease operators shown by the facts pleaded, as well as the affidavits reproduced in the record, is one of independent contractor. It appears that a great deal of responsibility for investment and management resides in the lease operators. They stand to either make a profit or lose. For aught that appears, the legal relationship is one of a bona fide lease. The operators own their own trucks. They hire their own helpers. The "total situation" here adds up to the conclusion that the lease operators are independent contractors, within the meaning of said Act. The correctness of this conclusion is also borne out by the decisions of the National Labor Relations Board. Oklahoma Trailer Convoy, Inc., supra; Eldon Miller, 107 N.L. R.B. 557; Malone Freight Lines, Inc., 106 N.L.R.B. 1107, 107 N.L.R.B. 501; Consolidated Forwarding Company, Inc., 112 N.L.R.B. 357.
This case must be reversed and remanded. But it should be observed that this opinion has dealt with the question of jurisdiction solelynot the merits of the controversy.
Reversed and remanded.
All the Justices concur. | January 8, 1959 |
da1f7a2c-1dd1-4bac-a289-5d6fb2cec719 | State v. Farabee | 108 So. 2d 148 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 148 (1959)
STATE of Alabama
v.
J. C. FARABEE et ux.
7 Div. 390.
Supreme Court of Alabama.
January 8, 1959.
*149 John Patterson, Atty. Gen., and E. L. Roberts, Sp. Asst. Atty. Gen., for appellant.
Ollie W. Nabors, Jack W. Torbert and Clarence Simmons, Jr., Gadsden, for appellees.
SIMPSON, Justice.
This is an appeal by the State of Alabama from a final order of condemnation of land for the construction of a highway extending through the City of Gadsden in Etowah County.
The right of petitioner to condemn the property was conceded. The only question was that of compensation for the land taken and the severance damages to the land remaining. A final decree of condemnation was entered in the Probate Court of Etowah County after due proceedings in that court. From this final decree the defendants appealed to the Circuit Court of Etowah County, where a trial de novo before a jury was had. A verdict and judgment was entered for the defendants in the sum of $4,200 as just compensation. A motion for a new trial was denied. From this verdict and judgment this appeal is taken by the State.
As pointed out by the appellee, appellant's brief has not complied fully with the standards required by Supreme Court Rule 9, Tit. 7, Appendix (Pocket Part), Code 1940. A concise statement of so much of the record as fully presents every error and exception relied upon referring to the pages of the transcript did not appear under the heading, "Statement of the Case". Only two general propositions of law were set out to sustain the seven assignments of error presented on appeal. And only one case was cited in appellant's argument, which seemed to argue several assignments *150 together. Nevertheless, we will exercise our discretion and give consideration to the points argued. Wood v. Wood, 263 Ala. 384, 82 So. 2d 556.
Assignments of Error numbered 2 and 6 are not argued and are therefore waived. Supreme Court Rule 9, supra.
Both parties to this appeal have treated Assignments of Error numbered 1 and 7 as the same, and we will so treat them. Appellant contends that the verdict and judgment of $4,200 is grossly excessive and that "it clearly appears that the verdict was the result of inadvertence or intentional or capricious disregard of the evidence, or was infected with bias, passion, or other improper motive, and that the excessiveness of the verdict was the result thereof". See Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545, 7 A.L.R.2d 773. The principle is settled that the verdict must stand, unless the amount is so large or so small as to carry internal evidence of intemperance in the minds of the jury and when the presiding judge refuses to grant the new trial, a favorable presumption attending the correctness of the verdict is thereby strengthened. State v. Carter, 267 Ala. 347, 101 So. 2d 550; Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; Thornton v. City of Birmingham, supra; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So. 2d 830.
The land involved consisted of Lots 7, 8, 9, 10, 11, 12, 34, 35, 36, 37, 38, and 39, in Block 4 of the T. R. Raley Second Addition, East Gadsden, Etowah County Alabama. This property was residential area, and a school and church were located in the near vicinity. A registered land surveyor testified that a contract had been let for a sewerage project that would serve Block 4 of the T. R. Raley Addition. Another witness, who it was shown had been in the real estate business for about twelve years, had bought and sold property in East Gadsden and in the vicinity of the T. R. Raley Second Addition, and was familiar with the appellees' property, testified that, in his opinion, all of the lots in question would have a reasonable total value of $5,400 and that the portion of land remaining after the taking would have a value of approximately $300. Still another witness, who had been in the real estate business ten years, testified that in his opinion, the full value of all the property would be $5,400 without considering the land remaining and the land remaining would be worth $150 to $200. The evidence as to values, therefore, was conflicting and a strict jury question was presented.
It is noted that the jury was allowed to view the property condemned and "A view of the premises and their surroundings and considering the prospects of a sanitary sewerage system available without cost of construction chargeable to the adjoining property owners, all serve to add to the value of the verdict of the jury". State v. Carter, supra [267 Ala. 347, 101 So. 2d 553].
We have allowed all reasonable presumption of the correctness of the verdict, and the evidence against the verdict is not so decided as to clearly convince the Court that it is wrong and unjust. Under such circumstances we are unwilling to pronounce our judgment, based only on the printed page, to be so superior to that of the jury and the trial judge as to supersede their view of the matter and substitute our own for theirs. Thornton v. City of Birmingham, supra.
Appellant contends that the lower court erred in sustaining objection to the following question:
A direct answer to the question would not have shed light on the value of lots in an adjoining block, and it is hard to see how appellant was prejudiced by his inability to *151 obtain an answer to such question. Appellant made no offer as to what he expected the evidence to show, and we can only presume that it was intended to show the value of a nearby lot by eliciting testimony as to offers of purchase. This would not be admissible. See Thornton v. City of Birmingham, supra; Dean v. County Board of Education, 210 Ala. 256, 97 So. 741; Tennessee Coal, Iron & R. Co. v. State, 141 Ala. 103, 37 So. 433.
Appellant also urges error in the ruling of the lower court in overruling objection and motion to exclude the answer to the following question posed during cross-examination:
On cross-examination it is proper to establish whether or not an expert witness in a condemnation proceeding is familiar with the property in relation to the surrounding area on the date of the condemnation. With this in mind, and realizing that the range of cross-examination rests largely in the trial court's discretion and that its ruling thereon will not be revised unless prejudicial error clearly appears, we can not pronounce error to reverse in this ruling. Howell v. Greyhound Corp., 257 Ala. 492, 59 So. 2d 587; Davis v. Radney, 251 Ala. 629, 38 So. 2d 867; Bates v. Chilton County, 244 Ala. 297, 13 So. 2d 186.
Appellant also argues that error was committed when the trial court overruled the objection to the following question propounded to a witness for the State on cross-examination:
Appellant argues that the evidence sought to be elicited by this question would shed no light on the question of value, since all municipal assessments are paid for by abutting property owners. From aught that appears, the method used by the City of Gadsden does not require sewer assessments on property owners for the installation of sewer outfalls and mains. We will not attempt to resolve this conflict over an issue which is outside the record.
The case of State v. Carter, supra, presented the same problem in a different form in a related case growing out of the same condemnation proceedings, which case, incidentally, recently came to this Court on appeal from the same circuit court involving the same attorneys. Since what was said by this Court in that case is determinative of the instant question, we quote the applicable part therefrom:
We find no error to reverse.
But, although not raised, we must take note of the feature of the judgment which the court had no power to render. The judgment should be modified by order of this Court so that it will provide that condemnation shall be effective upon payment of $4,200, less $3,600 already paid, and the payment of the costs of this cause into the Circuit Court of Etowah County for distribution as required by law. State v. Carter, supra.
Modified and affirmed.
LAWSON, GOODWIN and COLEMAN, JJ., concur. | January 8, 1959 |
5eb087fc-74bc-48ca-addd-d3a57a155a2a | Iverson v. Phillips | 108 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 168 (1959)
Louise E. IVERSON
v.
Eugene PHILLIPS.
6 Div. 242.
Supreme Court of Alabama.
January 8, 1959.
*169 Mead & Norman and Marshall H. Fitzpatrick, Birmingham, for appellant.
Hogan & Callaway, Birmingham, for appellee.
*170 LAWSON, Justice.
This suit was brought in the Circuit Court of Jefferson County by Eugene Phillips against Mrs. Louise E. Iverson to recover damages for personal injuries which resulted from a collision of an automobile in which the plaintiff alleged he was riding as a passenger and an automobile driven by the defendant.
The case went to the jury upon Count 1 of the complaint, which charged simple negligence, and the defendant's plea of the general issue in short by consent in the usual form. The verdict of the jury was in favor of the plaintiff and against the defendant in the amount of $4,000. Judgment was in accord with the verdict. The motion for new trial filed by the defendant having been overruled, she has appealed to this court.
Much of appellant's brief is devoted to the argument of Assignment of Error 9, which reads: "The judgment of the Court is contrary to the great weight of the evidence." This assignment presents nothing for review. It does not allege error for failure to grant the motion for new trial, nor does it allege error by the trial court in any respect. Only adverse rulings of the trial court are subject to an assignment of error on appeal from a judgment in a civil case based on a jury verdict. Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553. See Bertolla v. Kaiser, 267 Ala. 435, 103 So. 2d 736; Thompson v. State, 267 Ala. 22, 99 So. 2d 198; Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So. 2d 921; Clark v. Hudson, 265 Ala. 630, 93 So. 2d 138; King v. Jackson, 264 Ala. 339, 87 So. 2d 623; Central of Georgia R. Co. v. McDaniel, 262 Ala. 227, 78 So. 2d 290; Life & Casualty Ins. Co. of Tennessee v. Womack, 228 Ala. 70, 151 So. 880.
However, Assignment of Error 4, which is to the effect that the trial court erred in overruling the defendant's motion for a new trial, is sufficient to present for our consideration the argument in her brief directed to those grounds of the motion which challenge the sufficiency of the evidence to support the verdict. Mulkin v. McDonough Const. Co., supra.
The collision occurred at approximately nine o'clock on the morning of October 23, 1957, within the intersection of 14th Street and 9th Avenue in the City of Birmingham. The plaintiff, a Negro, was in an automobile owned by another Negro, Roy Bennett, which at the time of the collision was moving in a westerly direction on 9th Avenue. The automobile driven by the defendant, a white woman, was moving in a northerly direction on 14th Street. The intersection is a "blind one" in a residential section within the meaning of the ordinances of the City of Birmingham. Traffic at the intersection was not controlled by any stop sign or traffic signal.
The evidence was in sharp dispute. The plaintiff's evidence is to the effect that he was riding as a passenger in the automobile driven by Bennett, while one of the defendant's witnesses testified that plaintiff was the driver of Bennett's automobile. The defendant adduced testimony tending to show that plaintiff and Bennett had been drinking shortly before the accident. Plaintiff's evidence was to the effect that neither he nor Bennett had consumed any intoxicating beverage for several hours prior to the time of the accident. Evidence offered by the plaintiff was to the effect that the automobile in which he was riding was brought to a stop before entering the intersection and that it entered the intersection before the car driven by the defendant. It was without dispute that the front of defendant's car hit the left front door of the Bennett automobile and that the last-mentioned vehicle came to rest up against a post located near a sidewalk on the northwest corner of the intersection. The defendant offered evidence tending to show that her car entered the intersection first; that the Bennett car did not stop before entering the intersection, but on the contrary continued therein at *171 such a fast rate of speed as to run in front of defendant's car after it had entered the intersection. The evidence was also in sharp dispute as to the rate of speed at which the car driven by the defendant entered the intersection. There was evidence for the plaintiff tending to show that its speed was as much as forty miles an hour, while the evidence for the defendant showed a much slower rate of speed.
There was ample testimony, if believed by the jury, to support a verdict for the plaintiff on the theory that the collision proximately resulted from defendant's negligence in driving at a rate of speed in excess of the maximum speed limit prescribed by the laws of the State of Alabama and the ordinances of the City of Birmingham and in failing to yield the right of way to the Bennett car. In addition, there was evidence tending to show that the car driven by defendant entered the intersection on the wrong side of the street. And certain it is that the evidence supports a finding that the plaintiff was not guilty of contributory negligence which proximately contributed to his injuries.
The rules governing our review of a judgment denying a motion for a new trial have been frequently stated and should be well understood. It is not our function to decide what we might have done in the first instance had we been sitting as a jury hearing the facts. To authorize our reversal of such a judgment, we must be convinced that the weight of the evidence was so decidedly against the verdict as to convince the impartial mind that it was manifestly wrong and unjust. Pacific Fire Ins. Co. v. Overton, 256 Ala. 400, 55 So. 2d 123. In that connection we have said: "* * * When such a motion is denied by the trial court, and the verdict is largely dependent upon the credibility of the witnesses, to reverse the judgment on that motion the weight of the evidence must be so strong that there can be no reasonable doubt but that the verdict was the result of passion, prejudice, bias, favor, or some other motive which should not be controlling. Wolf v. Doe ex dem. Delage, 150 Ala. 445, 43 So. 856; Alabama Great Southern R. Co. v. Randle, 215 Ala. 535(4), 112 So. 112. The same is true in respect to matters in the discretion of the jury. Veitch v. Southern Railway, 220 Ala. 436, 126 So. 845." American Life Ins. Co. v. Williams, 234 Ala. 469, 175 So. 554, 556, 112 A.L.R. 1215.
And the refusal of the trial court to grant the motion for new trial adds verity to the propriety of the verdict and thereby strengthens the presumption in its favor. Smith v. Smith, 254 Ala. 404, 48 So. 2d 546; Pacific Fire Ins. Co. v. Overton, supra; Hamilton v. Browning, 257 Ala. 72, 54 So. 2d 530.
The jury who heard the evidence and saw the witnesses testify believed the plaintiff's explanation of how the accident occurred; the trial court likewise evidently accepted it and justified this belief by refusing a new trial; hence we feel constrained, in view of the well-recognized principles alluded to above, to affirm the action of the trial court in overruling the motion for a new trial.
Assignment of Error 5 reads: "The Court erred in overruling appellant's objections to questions posed by appellee seeking to show an admission on the part of appellant that appellee was a passenger in the automobile in which he was riding at the time of the collision, based on the contents of the complaint filed in a prior lawsuit arising from the same collision and involving a different plaintiff, as appears in the record beginning on page 240 with the question `Now, you were present then here in this Courthouse on the 5th Floor in the Intermediate Civil Court when a suit was brought in the name of William B. Wright against Roy Bennett, weren't you?', and continuing through the Court's excusing the jury from the courtroom which occurs at the top of page 243 of the *172 record, to which rulings objections were duly observed." This assignment of error may be too general to present any ruling of the trial court for our review. Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553, and cases cited; Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So. 2d 294; Hall v. Pearce, 209 Ala. 397, 96 So. 608. Unquestionably the only ruling of the trial court which this assignment could possibly present for our consideration is the action of the trial court overruling the objection to the question set out in the assignment. The objection was interposed after the witness had answered the question, saying "I was present." The objection was overruled without error, coming as it did after the witness had given a responsive answer to the question. Smith v. Lawson, 264 Ala. 389, 88 So. 2d 322, and cases cited. See Tucker v. Tucker, 248 Ala. 602, 28 So. 2d 637. Moreover, the answer of the witness standing alone could not have been injurious to the defendant. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
At the conclusion of the oral charge, counsel for defendant requested the trial court to orally instruct the jury to the effect that there is a duty on a passenger in an automobile to keep a lookout for his own safety. To that request the Court replied in the presence of the jury: "* * * I don't think I would specify that. I don't think there is any definite duty on a passenger. I mean, it might or might not depend on the circumstances." That statement is made the basis of Assignment of Error 7. There is no merit in that assignment. There is no absolute duty under all circumstances upon a passenger in an automobile to keep a constant lookout for sudden or unexpected dangers which may arise. 4 Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., § 2411; 61 C.J.S. Motor Vehicles § 488. The duty on a person riding in an automobile driven by another is to exercise reasonable or ordinary care to avoid injury, that is, to exercise such care as an ordinarily prudent person would exercise under like circumstances. Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702; Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So. 2d 289, and cases cited.
What we have said above in regard to Assignment of Error 7 is applicable to appellant's Assignment of Error 2, which is to the effect that the trial court erred in refusing to give at the appellant's request the following written charge: "W. I charge you that at the time of the accident, plaintiff was under a duty to keep a lookout for his own safety, and I further charge you that if you are reasonably satisfied from the evidence that plaintiff did not keep a lookout for his safety, and that his failure so to do proximately contributed to his injuries, then you cannot find your verdict for the plaintiff."
The refusal of Charge Z is the basis of Assignment of Error 3. Any other comment aside, the refusal of that charge may be rested on the grounds that it is confusing and involved. The charge is so framed as to be subject to the construction that plaintiff could not recover even though Bennett, the driver, was free from any negligence contributing to the accident. See Petersen v. Abrams, 188 Or. 518, 216 P.2d 664; 4 Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., § 2453, at pp. 603 and 604.
The trial court might well have sustained a proper objection to the argument made by counsel for plaintiff which, in effect, asked the members of the jury to treat the Negro plaintiff in the same manner as they would treat a white plaintiff and thereby refute the charges made by "outsiders" that Negroes cannot get justice in the courts of this state. An argument calculated to create bias in jurors' minds in a litigant's favor should be avoided just as much as an argument designed to create prejudice against him. However, we do not feel inclined to say that any injury resulted to the defendant by this appeal. See Texas & N. O. R. Co. v. McCoy, 54 Tex. *173 Civ.App. 278, 117 S.W. 446; St. Louis, B. & M. Ry. Co. v. Green, Tex.Civ.App., 196 S.W. 555. We hold that Assignment of Error 6 does not present a ground for reversal of the judgment of the trial court.
The jury, after considering the case for some time, requested information as to the testimony of Police Officer Wilhite, who was a witness for the defendant. The trial court advised that he could not undertake to summarize the testimony of the witness, and apparently entertained the view that it would be improper to permit the court reporter to read to the jury that part of Wilhite's testimony which related to the point of inquiry. The jury retired to begin reconsideration of the case after the trial court said: "Now, if you gentlemen can go back there I will seeI will check and see what, if anything, can be done in that respect. But that is the best answer I can give you." Thereupon counsel for defendant stated: "I would like an exception to the Courtan objection and exception to the Court's statement that if they will go back there that he will see what can be done." The statement of the Court set out above is the basis of Assignment of Error 8. It was discretionary with the trial court as to whether to permit the court reporter to read to the jury the desired extracts from Wilhite's testimony. Landers v. Hayes, 196 Ala. 533, 72 So. 106; Lanford Co. v. Buck, 220 Ala. 190, 124 So. 418. In sending the jury back to the jury room without permitting the testimony to be read and in failing to recall the jury for that purpose the trial court, in effect, declined the jury's request, a matter within its discretion. We can see no possible injury to the defendant from this action in that counsel for defendant apparently were unwilling for Wilhite's testimony to be read to the jury. Certain it is that the trial court was not advised that the defendant wanted the testimony to be read or was willing for it to be read.
We have given careful consideration to the assignments of error which have been argued in brief. We find no reversible error in any of them; hence the judgment of the trial court is due to be affirmed. It is so ordered.
Affirmed.
STAKELY, GOODWYN and MERRILL, JJ., concur. | January 8, 1959 |
1b4d1e51-fe1d-46c3-84b0-223fd175eb13 | Horne v. Patton | 287 So. 2d 824 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 824 (1973)
Larry L. HORNE
v.
William B. PATTON.
SC 409.
Supreme Court of Alabama.
December 6, 1973.
Rehearing Denied January 24, 1974.
*825 Irvin Grodsky, Mobile, for appellant.
James J. Duffy, Jr., and E. L. McCafferty, III, Mobile, for appellee.
BLOODWORTH, Justice.
Plaintiff Larry Horne comes here on a voluntary nonsuit assigning as error the trial court's ruling in sustaining defendant's demurrer to his complaint.
This case is alleged to have arisen out of the disclosure by Dr. Patton, defendant herein, to plaintiff's employer of certain information acquired in the course of a doctor-patient relationship between plaintiff Horne and defendant doctor, contrary to the expressed instructions of patient Horne. Plaintiff Horne's original complaint asserted that the alleged conduct constituted a breach of fiduciary duty and an invasion of the plaintiff's right of privacy. Demurrer to this complaint was sustained. Subsequently, three amended counts were filed and demurrer to these counts was also sustained. Plaintiff thereupon took a voluntary nonsuit and filed this appeal.
There are sixty-eight assignments of error on this appeal. Appellant has expressly waived all but twenty-two, relating to the trial court's sustaining of defendant's demurrer to the complaint as last amended.
Count I of the amended complaint alleges in substance that defendant is a medical doctor, that plaintiff was a patient of defendant doctor for valuable consideration, that plaintiff instructed defendant doctor not to release any medical information regarding plaintiff to plaintiff's employer, and that defendant doctor proceeded to release full medical information to plaintiff's employer without plaintiff's authorization. Count I further alleges that the doctor-patient relationship between plaintiff and defendant was a confidential relationship which created a fiduciary duty from the defendant-doctor to the plaintiffpatient, that the unauthorized release of said information breached said fiduciary duty, moreover that said disclosure violated the Hippocratic Oath which defendant had taken and therefore constitutes unprofessional conduct. Plaintiff avers that as a direct *826 and proximate result of the release of said information, plaintiff was dismissed from his employment.
Count II alleges the same basic facts but avers that the release of said information was an unlawful and wrongful invasion of the plaintiff's privacy.
Count III alleges, in substance, that plaintiff entered into a physician-patient contractual relationship for a consideration with the defendant, whereby through common custom and practice, impliedly, if not expressly, defendant agreed to keep confidential personal information given to him by his patient, that plaintiff believed the defendant would adhere to such an implied contract, with the usual responsibility of the medical profession and the traditional confidentiality of patient communications expressed in the Hippocratic Oath taken by the defendant. Count III goes on to allege that defendant breached said contract by releasing full medical information regarding the plaintiff to plaintiff's employer.
It is defendant's initial contention that this court cannot review appellant's assignments of error because they are deficient, relying primarily upon Alldredge v. Alldredge, 288 Ala. 625, 264 So. 2d 182. Appellant's assignments of error are in the following form:
The other assignments of error are in the same form assigning as error the trial court's sustaining the remaining twentyone grounds of defendant's demurrer.
The trial court's judgment sustaining the demurrer does not give specific ground for its decision. It simply reads: "* * * demurrer * * * to the complaint as last amended * * * is hereby sustained." Clearly, the approved practice has been to simply assign as error the sustaining of the demurrer to each count of the amended complaint without enumerating the specific grounds of demurrer severally. But, this court has heretofore held that the court will look at the merits where the assignment clearly presents the question for review, even though there may have been a better way to frame the assignment. See, e.g., Alabama Electric Coop., Inc. v. Alabama Power Co., 283 Ala. 157, 214 So. 2d 851 (1968).
In the case at bar, plaintiff has assigned as error the sustaining of the demurrer on each of the several grounds specified by defendant in his demurrer. Every ground before the trial court is included. While the judgment does not reveal which grounds of the demurrer the trial judge considered to be valid, it is obvious it must have been one or more of those enumerated by plaintiff in his assignments. It seems clear, beyond peradventure, from the assignments when considered collectively, that plaintiff challenges the trial court's sustaining of the demurrer to each count of his amended complaint. Alldredge v. Alldredge, supra, is distinguishable in this regard, and there is no sound reason for expanding this rule to encompass the instant case. It follows then that plaintiff's assignments of error do comply with Rule 1 of the Revised Rules of Practice of the Supreme Court of Alabama, however inartfully they may be drawn.
Defendant next contends that, because plaintiff assigned as error the sustaining of defendant's demurrer to the complaint as a whole, if any one of the three counts are demurrable the judgment of the trial court should be affirmed, citing Whatley v. Alabama Dry Dock and Shipbuilding Co., 279 Ala. 403, 186 So. 2d 117 (1966). While counsel for plaintiff admits that this appears to be the prevailing law at present, he urges this court to consider the merits of each of the three counts. Given the result *827 we reach, we need not consider this contention.
And, now to consider each of the counts.
Whether or not there is a confidential relationship between doctor and patient which imposes a duty on the doctor not to freely disclose information obtained from his patients in the course of treatment is a question of first impression in this state. The question has received only a limited consideration in other jurisdictions, and its resolution has been varied. Those states which have enacted a doctor-patient testimonial privilege statute have been almost uniform in allowing a cause of action for unauthorized disclosure. See, e.g., Hammonds v. Aetna Casualty & Surety Co., 237 F. Supp. 96, motion for reconsideration denied, 243 F. Supp. 793 (N.D.Ohio, 1965); Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814 (1958); Clark v. Geraci, 29 Misc.2d 791, 208 N.Y.S.2d 564 (1960); Felis v. Greenberg, 51 Misc.2d 441, 273 N.Y.S.2d 288 (1966); Smith v. Driscoll, 94 Wash. 441, 162 Pac. 572 (1917).
Alabama, however, has not enacted such a privilege statute. In reviewing cases from other states which also do not have a doctor-patient testimonial privilege, the jurisdictions are split about evenly on this issue. After a careful consideration of this issue, it appears that the sounder legal position recognizes at least a qualified duty on the part of a doctor not to reveal confidences obtained through the doctor-patient relationship.
In the case of Hague v. Williams, 37 N. J. 328, 181 A.2d 345 (1962), the Supreme Court of New Jersey considered the question as to whether an action will lie for unauthorized disclosure by a doctor of information obtained in the doctor-patient relationship. The case arose in the context of a disclosure by a physician of the medical history of a deceased patient to the patient's life insurers. After carefully noting that New Jersey, unlike several other states which had previously recognized such a cause of action, did not recognize a doctor-patient testimonial privilege, the New Jersey court went on to distinguish testimonial and non-testimonial disclosure. The court found a confidential relationship between doctor and patient giving rise to a general duty not to make non-testimonial disclosures of information obtained through the doctor-patient relationship. The court stated the duty as follows:
(The court affirmed the trial court's judgment which denied relief to the plaintiffs, holding that the particular facts in the Hague case fell within an exception to this general rule; the parent-plaintiffs were held to have lost their right to non-disclosure by their act of filing a claim with their insurer involving the health of their child, the patient.)
Although deciding the case on another ground, an intermediate Pennsylvania appellate court in Alexander v. Knight, 197 Pa.Super. 79, 177 A.2d 142 (1962), dealing with an unauthorized disclosure to an adverse party, went one step farther and condemned a disclosure made prior to trial, even though the information disclosed would not have been privileged at trial due to Pennsylvania's lack of a doctor-patient testimonial privilege statute. The court observed:
Furthermore, decisions from states with testimonial privilege statutes are not necessarily inapposite. Where the tort duty is based upon breach of the statute or the public policy expressed by the statute, this may be true. However, whether or not testimony may be barred at trial does not necessarily control the issue of liability for unauthorized extra-judicial disclosures by a doctor.
This was recognized by the Supreme Court of Nebraska in the case of Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920). There the court, after noting that Nebraska had a testimonial privilege statute, stated that such statute did not apply to non-testimonial disclosures and therefore had no bearing upon the case at hand involving extra-judicial disclosures. In seeking a source of a duty of secrecy on the part of the defendant doctor, the court pointed to a licensing provision that included "betrayal of a professional secret to the detriment of a patient" as unprofessional conduct. From this expression of policy the court derived a legal duty of secrecy on the part of the defendant doctor, viz:
See also the discussions of policy in the Hammonds v. Aetna Casualty & Surety Co., Berry v. Moench and Smith v. Driscoll, supra.
It should be noted that Alabama has a very similar statute which gives the state licensing board for the hearing arts the power and imposes on it the duty of suspending or revoking a doctor's license who wilfully betrays a professional secret. Title 46, § 257(21), Code of Alabama 1940, as last amended, reads as follows:
"* * *
"(14) Wilful betrayal of a professional secret;"
Moreover, the established ethical code of the medical profession itself unequivocally recognizes the confidential nature of the doctor-patient relationship. Each physician upon entering the profession takes the Hippocratic Oath. One portion of that required pledge reads as follows:
This pledge has been reaffirmed in the Principles of Medical Ethics promulgated by the American Medical Association in Principle 9, viz:
When the wording of Alabama's state licensing statute is considered alongside the accepted precepts of the medical profession itself, it would seem to establish clearly that public policy in Alabama requires that information obtained by a physician in the course of a doctor-patient relationship be maintained in confidence, unless public interest or the private interest of the patient demands otherwise Is it not important that patients seeking medical attention be able to freely divulge information about themselves to their attending physician without fear that the information so revealed will be frivolously disclosed? As the New Jersey Supreme Court so aptly pointed out, what policy would be served by according the physician the right to gossip about a patient's health.
Only two courts have refused to recognize any duty on the part of the physician not to disclose. They are Collins v. Howard, 156 F. Supp. 322 (S.D.Ga., 1957) and Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965). Neither the reasoning nor the result of either of these two cases is impressive. Both opinions fail to adequately separate the issue of testimonial privilege and the duty of confidentiality in extra-judicial communications. This problem is further complicated in that both cases involve disclosures in the context of pending litigation, such that the plaintiffs suffered no injury by virtue of the allegedly wrongful disclosures. Moreover, both courts found that no doctor-patient relationship existed on the facts there involved.
It is thus that it must be concluded that a medical doctor is under a general *830 duty not to make extra-judicial disclosures of information acquired in the course of the doctor-patient relationship and that a breach of that duty will give rise to a cause of action. It is, of course, recognized that this duty is subject to exceptions prompted by the supervening interests of society, as well as the private interests of the patient himself. Whether or not the alleged disclosure by the defendant doctor in the instant case falls within such an exception, is not now an issue before this court.
The trial court erred in sustaining the demurrer to Count I.
The gravamen of Count II is that defendant's release to plaintiff's employer of information concerning plaintiff's health constituted an invasion of plaintiff's privacy.
This court has recognized the right of a person to be free from unwarranted publicity or unwarranted appropriation or exploitation of one's personality, publicization of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion of one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So. 2d 321 (1961); Abernathy v. Thornton, 263 Ala. 496, 83 So. 2d 235 (1955); Smith v. Doss, 251 Ala. 250, 37 So. 2d 118 (1947).
Whether or not unauthorized disclosure of a person's medical record constitutes an invasion of this right of privacy is likewise a question of first impression in Alabama. Looking to other jurisdictions which have considered this question, those courts have almost uniformly recognized such disclosure as a violation of the patient's right of privacy. See cases collected at 20 A.L.R.3d 1109, 1114-15.
As a federal district court so aptly stated in Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793 (N.D.Ohio, 1965), involving disclosure of medical information concerning the patient to the patient's insurer:
Unauthorized disclosure of intimate details of a patient's health may amount to unwarranted publicization of one's private affairs with which the public has no legitimate concern such as to cause outrage, mental suffering, shame or humiliation to a person of ordinary sensibilities. Nor can it be said that an employer is necessarily *831 a person who has a legitimate interest in knowing each and every detail of an employee's health. Certainly, there are many ailments about which a patient might consult his private physician which have no bearing or effect on one's employment. If the defendant doctor in the instant case had a legitimate reason for making this disclosure under the particular facts of this case, then this is a matter of defense.
The trial court erred in sustaining the demurrer to Count II.
The gravamen of Count III is that the alleged disclosure breached an implied contract to keep confidential all personal information given to defendant doctor by his patient. This court alleges that defendant doctor entered into a physician-patient contractual relationship wherein the plaintiff agreed to disclose to defendant all facts which would help him in his diagnosis and treatment of the plaintiff, that defendant agreed to treat the plaintiff to the best of his medical ability, and to keep confidential all personal information given to him by the plaintiff. It is alleged that this agreement is implied from the facts through common custom and practice.
This court has often stated that an implied contract arises where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract. See, e.g., Broyles v. Brown Engineering Company, 275 Ala. 35, 151 So. 2d 767 (1963). Defendant admits in his brief that the facts and circumstances alleged are such as to show a mutual intent to contract according to the ordinary course of dealing between a physician and his patient. The point of difference between the parties appears to be whether or not there is an implied term in the ordinary course of dealing between a doctor and patient that information disclosed to the doctor will be held in confidence.
Again, this question is one of first impression in this state. Few courts have considered this question. One of the fullest discussions on this point appears in Hammonds v. Aetna Casualty & Surety Co., supra, viz:
A Pennsylvania court in Clayman v. Bernstein, 38 Pa.D & C 543 (1940), appears also to have recognized an implied term of confidentiality in the doctor-patient contract as it permitted the husband of a patient to maintain suit against a doctor for threatened disclosure of medical information concerning his wife:
Although the Tennessee Supreme Court denied there was a cause of action in tort for unauthorized disclosure of medical information concerning a patient, it admitted that there might be a breach of an implied contract. Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 252 (1965).
We have not been cited to, nor have we found in our research, any case in which a cause of action for the breach of an implied contract of confidentiality on the part of the doctor has been rejected. Moreover, public knowledge of the ethical standards of the medical profession or widespread acquaintance with the Hippocratic Oath's secrecy provision or the AMA's Principles of Ethics or Alabama's medical licensing requirements of secrecy (which is a common provision in many states) singly or together may well be sufficient justification for reasonable expectation on a patient's part that the physician has promised to keep confidential all information given by the patient.
Again, of course, any confidentiality between patient and physician is subject to the exceptions already noted where the supervening interests of society or the private interests of the patient intervene. These are matters of defense.
The trial court erred in sustaining demurrer to Count III.
The judgment of the trial court is therefore due to be reversed and remanded.
Reversed and remanded.
HEFLIN, C.J., and HARWOOD and JONES, JJ., concur.
MERRILL, MADDOX, and FAULKNER, JJ., concur in the result.
McCALL, J., dissents.
HEFLIN, Chief Justice (concurring):
I concur in the opinion of Justice Bloodworth but I would add to it.
While the language which mentions a defense to these causes of action "supervening interests of society" and the words from Hague v. Williams, 37 N.J. 328, 181 A.2d 345, which carves out an exception when the public interest so demands, probably include within their scope a disclosure made to a legitimate research group, I would, nevertheless, specify that such a disclosure is a defense.
MERRILL, Justice (concurring specially):
I would treat any reference in the pleadings to the Hippocratic Oath as surplusage because I do not think that it has any bearing on the cause of action. I think a cause of action is averred regardless of whether the patient had ever known that there was such an oath, or whether he was able to state a single provision of the oath.
McCALL, Justice (dissenting).
The prime issue is whether or not the trial court erred in sustaining the demurrer. In general, the complaint charges that the defendant wrongfully disclosed to the plaintiff's employer that the plaintiff suffered from a longstanding nervous condition with feelings of anxiety and insecurity. The verity of this medical opinion is not denied. The complaint does not charge that the defendant gave general circulation to this information as mentioned in Alexander v. Knight, 197 Pa.Super. 79, 177 A.2d 142, cited in the above opinion, or that the defendant spoke it abroad (in wide circulation).
*833 Nor does the complaint charge that the defendant frivolously disclosed or gossiped about the defendant's health as the opinion intimates. We are not writing to such issues. Those circumstances alluded to in cited cases are not the averments in this case.
Counts I and II of the amended complaint attempt to charge more than a single cause of action for the recovery of damages against the defendant. In Count I, the plaintiff undertakes to aver a fiduciary duty, allegedly arising out of a doctor-patient relationship, which the plaintiff charges was breached. He also undertakes to aver, in the same count, a claim for recovery in his behalf for an alleged breach of the Hippocratic oath. In Count II, the plaintiff undertakes to aver a claim for damages for allegedly releasing medical information regarding the plaintiff to the latter's employer. The plaintiff further attempts to aver, in the same count, an unlawful and wrongful invasion of the plaintiff's privacy by reason of the release of the said information. As in Count I, the plaintiff also counts on an alleged breach of the Hippocratic oath.
Irrespective of whether the matters, if properly alleged, would state good causes of action, the fact remains that the plaintiff has misjoined in a single count separate and distinct causes of action which is not sanctioned under our system of pleading. Clikos v. Long, 231 Ala. 424, 165 So. 394; Vulcan Materials Company v. Grace, 274 Ala. 653, 658, 151 So. 2d 229.
If the appellant in the case at bar did not argue in his brief that the misjoinders were permissible, it is not the duty of the appellee to argue that the misjoinders were erroneous. The court in Allen v. Axford, 285 Ala. 251, 263, 231 So. 2d 122 said:
See also Metzger Brothers, Inc. v. Friedman, 288 Ala. 386, 400, 261 So. 2d 398.
If a trial court generally sustains a demurrer to a complaint, without specifying on which grounds of demurrer it relies, an appellate court must sustain the trial court, if any one ground of demurrer be found properly sustainable. Brown v. W.R.M. A. Broadcasting Co., 286 Ala. 186, 238 So. 2d 540; Crommelin v. Capitol Broadcasting Co., 280 Ala. 472, 195 So. 2d 524; McKinley v. Simmons, 274 Ala. 355, 148 So. 2d 648. In Brown, supra, the plaintiff sued the defendant for slander, a ground akin to the allegations in the case at bar. The trial court sustained the defendant's demurrer and entered a judgment of nonsuit, and the plaintiff appealed. The court stated:
The court agreed that it need only to consider whether a complaint is demurrable on any one of the grounds given in a document.
In Count III, the plaintiff relies on the breach of an alleged implied contract that the defendant would not divulge his medical findings about the plaintiff to the latter's employer. If there is no legal duty not to make such a disclosure, then there can be no implied contract not to disclose the information. In my opinion there is no legal duty not to make the disclosure in this case.
Alabama is a common law state. Tit. 1, § 3, Code of Alabama, 1940; Hollis v. Crittenden, 251 Ala. 320, 37 So. 2d 193. At common law no privilege between physician and patient existed as to communications *834 between physician and patient. This is the rule in the absence of a contrary statute. 58 Am.Jur. Witnesses, § 401, notes 20 and 1 on page 232. While statutes have been enacted in most states making communications between physician and patient privileged from compulsory disclosure in courts of justice, Alabama has not enacted such a law. The common law therefore remains in effect. In 61 Am.Jur.2d Physicians, Surgeons, Etc., § 101, it is said that at common law neither the patient nor the physician has the privilege to refuse to disclose in court a communication of one to the other, nor does either have a privilege that the communication not be disclosed to a third person. Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 20 A.L.R.2d 1103, citing 1 Morgan, Basic Problems of Evidence, Ch. 5 (1954); 8 Wigmore, Evidence § 2380 (3rd Ed. 1961). In Quarles, supra, a store physician, who treated the plaintiff, immediately after her fall in the store, sent a copy of his report of findings to her lawyer and to the store's lawyer also, although he was requested not to send any medical report to anyone until notified by the plaintiff's lawyer.
The Tennessee Supreme Court said:
It is important to observe that the information allegedly revealed by the physician in the present complaint did not constitute gossiping about his patient's health or a frivolous disclosure of information, as the court alluded to in Hague v. Williams, 37 N.J. 328, 181 A.2d 345.
In Hague v. Williams, supra, the court said:
The court held that where the public interest or the private interest of a patient so demands, disclosure may be made to a person with a legitimate interest in the patient's health, and, where in the course of examining an infant patient the physician *835 became aware of a pathological heart condition, the physician was not barred from disclosing such condition to an insurer to whom the parents had applied for life insurance on the infant, the court holding that when the parents made a claim for insurance, they lost any rights to nondisclosure that they may have had. Hague, supra, p. 349. In my opinion the overriding competing interest and responsibility of an employer for the welfare of all of his employees, to the public who come to his establishment and who buy his merchandise, and to the furtherance of his own business venture, should entitle him to be free from the shackles of secrecy that would prevent a physician from disclosing to the employer critical information concerning the physical or mental condition of his employees. | December 6, 1973 |
e66f36a1-0659-4202-a1d9-65e75553882e | Gaines v. State | 288 So. 2d 813 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 813 (1973)
In re Samuel L. GAINES
v.
STATE.
Ex parte Samuel L. Gaines.
SC 618.
Supreme Court of Alabama.
December 13, 1973.
Rehearing Denied January 31, 1974.
Orzell Billingsley, Jr., Birmingham, for petitioner.
No brief for the state.
FAULKNER Justice.
Petition of Samuel L. Gaines for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Gaines v. State, 52 Ala.App. 29, 288 So. 2d 810.
Writ denied.
MERRILL, HARWOOD, MADDOX and JONES, JJ., concur. | December 13, 1973 |
30424d31-e88e-4170-9a47-db9a555be7c9 | Jones v. Styles | 109 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 713 (1959)
Harmon H. JONES
v.
Sidney R. STYLES.
6 Div. 262.
Supreme Court of Alabama.
February 19, 1959.
*714 St. John & St. John, Cullman, for appellant.
Julian Bland, Cullman, for appellee.
STAKELY, Justice.
This is an appeal from a decree of the equity court overruling a demurrer to a bill in equity filed by Sidney R. Styles (appellee against Harmon H. Jones (appellant). The bill seeks specific performance of an option to repurchase an interest in an insurance agency.
The allegations of the bill show in substance the following. For sometime prior to the 6th day of May, 1957, the appellant and appellee were engaged as partners in the business of "general insurance" under the firm name of Cullman Insurance Agency. This partnership was terminable at the will of either party. On May 6, 1957, the partnership was dissolved by a written agreement and the appellant continued the business as an individual. However, in the agreement dissolving the partnership, the appellee was given a six months' option to repurchase one-half interest in the Cullman Insurance Company. A copy of this contract is attached to the bill, marked Exhibit A thereto and made a part of the bill. A *715 copy of this contract will appear in the report of the case.
1. Where there is no time fixed by contract for the continuance of the partnership, the partnership is a partnership at will, which can be terminated at any time at the will of either partner. Ramsey v. Wilkins, 253 Ala. 614, 46 So. 2d 407; Moody v. Myers, 265 Ala. 435, 91 So. 2d 686; § 33, Title 43, Code of 1940.
Ordinarily an agreement to enter into a partnership at will or for an indefinite period will not be enforced in equity, since such partnership may be immediately dissolved by either party and the courts will not willingly do a futile thing. 81 C.J. S. Specific Performance § 15, p. 438; 81 C.J.S. Specific Performance § 81, p. 590.
Paragraph 3 of the contract provides for an option to repurchase one-half interest in the Cullman Insurance Agency. It is insisted that if the contract is carried out, it will in effect create a partnership at will in the Cullman Insurance Agency between appellant and appellee. Nowhere in the agreement is there mentioned a duration of time during which the proposed partnership be continued. It is, therefore, argued by the appellant that specific performance should not be granted since the new partnership may be immediately dissolved by either party and the court should not do a futile thing.
Upon a consideration of the matter, however, we do not agree with the contention of appellant. Within the six months' period provided in the contract the appellee notified the appellant in writing that he wanted to exercise his option to repurchase one-half interest in the insurance agency. The appellant refused to allow the appellee to repossess his one-half interest, even though the appellee stood ready, willing and able to perform the provisions of the contract. While neither party to a contract is entitled to specific performance as a matter of right and the granting or withholding of specific performance is a matter within the court's sound judicial discretion controlled by certain rules and principles, in view of the special features and incidents of the present case, we think that specific performance should be granted. Owens v. Cunningham, 266 Ala. 203, 95 So. 2d 74; Cowin v. Salmon, 244 Ala. 285, 13 So. 2d 190.
In the present case the agency is already in existence and is a going concern. It includes among its assets all rights or claims of ownership of the business, all furniture in the Cullman Insurance Company office, including filing cabinets, tables, chairs, desks, typewriters, adding machines etc., and also 450 shares of Dixie Insurance Company stock. The authorities while meager seem to make it clear that even though the partnership being at will may be immediately dissolved by either party, nevertheless a decree ordering the execution of partnership articles will nevertheless be made if necessary to invest a partner with the legal rights for which he had entered into the partnership, although after the articles are executed, the parties cannot be compelled to act under them. 81 C.J.S. Specific Performance § 15, pp. 438-439. In this connection the court in Satterthwait v. Marshall, 4 Del.Ch. 337, at page 355, said:
In Whitworth v. Harris, 40 Miss. 483, at page 491, the court in referring to the endurance of a partnership contract said:
We conclude that the court acted correctly in overruling the demurrer to the bill of complaint and each aspect thereof.
Affirmed.
SIMPSON, GOODWYN, MERRILL and COLEMAN, JJ., concur. | February 19, 1959 |
677aa937-f179-4b61-80ef-b9a45628e380 | McGowin Investment Company v. Johnstone | 287 So. 2d 835 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 835 (1973)
McGOWIN INVESTMENT COMPANY, a corporation, et al.
v.
Douglas Inge JOHNSTONE and Mary Jayne Johnstone.
SC 490.
Supreme Court of Alabama.
December 20, 1973.
Edmund R. Cannon and Jerry A. McDowell, Mobile, for appellants.
James L. May, Jr., Mobile, for appellees.
BLOODWORTH, Justice.
Appellant, McGowin Investment Company, et al., appeal from a judgment of the Circuit Court of Mobile County, granting appellees Johnstones' application to condemn a right of way over and across certain lands of McGowin Investment Company.
Appellees filed their application to condemn a right of way over the McGowin lands in the Probate Court of Mobile County, pursuant to Title 19, § 56 et seq., Code of Alabama 1940, as last amended. Appellees later amended their application. By decree of August 17, 1972, the probate judge denied the amended application. Appellees then appealed to the circuit court. After a trial de novo, Honorable *836 William D. Bolling, the trial judge, by a judgment dated April 4, 1973, granted appellees' amended application to condemn a right of way over and across the McGowin lands. Appeal to this court then followed. By the judgment, the trial court "retains jurisdiction of this cause for such others, further and different orders, judgments, and decrees as the Court may deem proper in the matter of damages." Jury trial on the issue of damages was set for June 13, 1973.
There is a procedural issue to be resolved before we can consider the merits of this appeal. Appellees bring to the court's attention the fact that the circuit court's judgment does not adjudicate the matter of damages and retains jurisdiction for that express purpose. Appellees submit that this judgment is not such a final judgment as will support an appeal, although, in brief, they specifically waive any objection thereto. On the other hand, appellants argue that this judgment is a final judgment.[1]
Section 23 of Title 19, Code of Alabama 1940, provides for appeal to this court in condemnation proceedings within thirty days "After final judgment in the circuit court * * *." As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties. Taylor v. Major Finance, Co., Inc., 289 Ala. 458, 268 So. 2d 738 (1972); Mason v. McClain, 271 Ala. 93, 122 So. 2d 519 (1960).
No Alabama case has been cited in brief which has considered the question as to whether a judgment, which granted an application for condemnation but retained jurisdiction of the cause for determination of damages, is a final judgment within the meaning of § 23. Appellants do cite two cases which they say stand for the proposition that this court has, in fact, considered appeals in condemnation proceedings prior to determination of damages. These cases are Gralapp v. Mississippi Power Company, 280 Ala. 368, 194 So. 2d 527 (1967) and Berry v. Alabama Power Company, 257 Ala. 654, 60 So. 2d 681 (1952). A review of the original records in these two cases reveals, however, that damages had been assessed by the trial court before appeal. It is apparent that this court, on appeal, simply did not see fit to mention the issue of damages.
This court has been unable to find any Alabama condemnation case in which an appeal was allowed prior to assessment of damages. Additionally, no case of any nature in this state has been cited to this court in which an appeal was permitted prior to an adjudication by the trial court on the issue of damages.[2]
Cases involving references before a register in chancery are clearly distinguishable in that they involved merely ministerial ascertainments of fact and mechanical calculations from those facts; all legal issues having already been determined by the trial judge. See Ala.Dig., Vol. 2, Appeal & Error, No sound reason has been advanced why this court should extend the scope of this line of cases so as to permit piecemeal appeal in cases such as the one at bar.
Moreover, the provisions of Title 19, § 24, Code of Alabama 1940, providing for a deposit or payment into court of the damages assessed in condemnation cases in order to secure entry pending appeal, as well as the provisions of Title 19, § 25, providing for payment of damages within six months after appeal is determined, together seem clearly to indicate that the legislature intended that judgments in condemnation *837 cases become final only after assessment of damages.
It is, therefore, that this court must conclude that the instant judgment is not a final judgment, and that this appeal must be dismissed as premature.
Appeal dismissed.
COLEMAN, HARWOOD, McCALL and FAULKNER, JJ., concur.
[1] Appellants, however, state in brief that they have taken this appeal so as not to risk waiving their rights to appeal this part of the court's judgment due to the lapse of more than 30 days between the condemnation order and the hearing on damages.
[2] See cf. City of Birmingham v. Brown, 241 Ala. 203, 2 So. 2d 305, (1941). | December 20, 1973 |
a24335e0-44b4-47c1-b724-3f4c06fee42e | Crew v. WT Smith Lumber Co. | 109 So. 2d 721 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 721 (1959)
Robert Henry CREW
v.
W. T. SMITH LUMBER CO. et al.
3 Div. 823.
Supreme Court of Alabama.
February 19, 1959.
*722 J. O. Sentell, Jr., Montgomery, for appellant.
Poole & Poole and Wm. Hamilton, Greenville, for appellees.
STAKELY, Justice.
This is an appeal by Robert Henry Crew from a final decree rendered in the Circuit Court of Butler County, in Equity, in which *723 W. T. Smith Lumber Company, a corporation, was complainant and Robert Henry Crew and B. C. Owen were respondents.
The original bill filed by W. T. Smith Lumber Company averred that the complainant was the owner of certain trees and timber growing, standing, lying and being on certain described land. It further averred that complainant obtained title to said timber and the right to remove the same from the land from the owner of the land by deed and that the respondent B. C. Owen is now the owner of that land, subject to the timber conveyance.
It is further averred that B. C. Owen is in the peaceable possession of said land, claiming to own the same in his own right and that no suit is pending to enforce or test the validity of the title to said land, but that the title of the respondent, B. C. Owen, is denied or disputed by respondent, Robert Henry Crew, who claims or is reputed to own or claim some interest in said land or some part thereof.
It is averred in the bill that the complainant "is now engaged in the cutting of the aforesaid timber," and that Robert Henry Crew is interfering with the complainant in the cutting and removing of said timber, and has by threats of personal violence prevented the cutting and removing of same. It is also averred that there is a time limit for cutting and removing the timber and that if complainant is prevented from cutting said timber during said time limit, it will suffer irreparable loss and damage. The bill prays for a decree permanently enjoining the respondent, Robert Henry Crew, from intimidating and interfering in the cutting and removal of the timber, for the quieting of complainant's title to the timber and for general relief.
The original bill when construed most strongly against complainant shows that the only injunctive relief sought is for the purpose of preventing threats and intimidations against agents, servants, employees and contractors of complainant. In this respect the original bill in the instant case differs from the bill in the case of Green v. Mutual Steel Co., Inc., Ala., 108 So. 2d 837.
The respondent, B. C. Owen, filed a demurrer, answer and cross bill to the original bill. The cross bill which makes Robert Henry Crew the cross respondent, avers that the cross complainant, Owen, owns and is in the peaceful possession of the land described in the cross bill and that Crew claims or is reputed to claim some right, title or interest in or incumbrance on said land. The cross complainant, Owen, prays for the quieting of title and for general relief.
The respondent, Robert Henry Crew, filed a demurrer to the original bill. There followed a decree by the court overruling the demurrers of both respondents to the original bill.
B. C. Owen amended his cross bill against Crew by adding another aspect, which averred that Owen and Crew are coterminous landowners and that there is a dispute as to the boundary line between their respective lands. The prayer to this aspect is that a true boundary line be determined. This amendment was filed on the day preceding the hearing in open court of the cause and the entering of the final decree. No answer or other pleading to this amendment was filed by the respondent, Robert Henry Crew.
The final decree described the true and correct boundary line between the property of B. C. Owen and the property of Robert Henry Crew. The decree further granted the complainant, W. T. Smith Lumber Company, an extension of time for the cutting and removing of the timber claimed. And finally the decree permanently enjoined the appellant, Robert Henry Crew, from interfering in any way with the cutting and removing of the said timber by the complainant.
I. It is insisted that the lower court erred in overruling the appellant's demurrer to the original bill of complaint filed by W. T. Smith Lumber Company. It does not appear from the bill of complaint *724 on exactly what theory the complainant bases its prayer for a permanent injunction enjoining the respondent, Robert Henry Crew, from intimidating and interfering with the agents, servants, employees and contractors in the cutting and removal of timber from said land. Under the allegations of the bill before us we do not consider that the equity court has jurisdiction to grant such relief. The case of Montgomery & W. P. R. Co. v. Walton, 14 Ala. 207, supports this view. In that case the complainants were building a road over a strip of land to which they had secured the title. The bill of complaint alleged that complainants were prevented from proceeding with their work by the threats of the defendant that he would kill or injure their agents, if they attempted to work on the land. This court after saying that the allegations of the bill show that the complainants have obtained the right of way over the land of the defendant, in denying the jurisdiction of the equity court said:
The rule set forth in the foregoing case has been qualified as shown by the following excerpt from Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657, where the court quoted with approval the following from Port of Mobile v. Louisville & Nashville R. Co., 84 Ala. 115, 4 So. 106, 112:
In Morris v. Bailey, 261 Ala. 281, 74 So. 2d 447, 448, this Court said:
In the case of Ex parte Hammett, 259 Ala. 240, 66 So. 2d 600, the basis of the suit was a telephone conversation where the defendant is alleged to have used abusive and insulting language to the plaintiff. It was held that such language when unaccompanied with any act of trespass or defamation does not give rise to a cause of action. So in the instant case mere threats unaccompanied by trespass does not give rise to a cause of action. Furthermore *725 our cases hold that where a bill has no equity, it will not support an injunction. McHan v. McMurry, 173 Ala. 182, 55 So. 793.
Evidently in an effort to meet the requirements of the foregoing cases, it is alleged in the bill of complaint that irreparable damage will be suffered by the complainant if the injunction prayed for is not granted. But the only facts set out in support of this allegation are that the time allowed for cutting and removing the timber from the land will expire on a certain date and if the complainant is prevented from cutting said timber during the time limit, it will suffer irreparable loss and damage. It is also averred that if the threats and intimidations of respondent, Robert Henry Crew, are not enjoined the complainant will be required to move its mill and machinery and will thereby suffer damages which cannot be reasonably compensated in a court of law. We are unable to determine from the facts alleged why such damages cannot be reasonably compensated in a court of law. Mere averment that irreparable damage will result will avail the pleader nothing unless supported by proper charges of facts. Morris v. Bailey, 261 Ala. 281, 74 So. 2d 447; Bowling v. Crook, 104 Ala. 130, 16 So. 131.
We conclude that the equity court had no jurisdiction to grant the injunction prayed for.
Title 47, § 49(1), Code of 1940, 1955 Cumulative Pocket Part, provides that standing timber and trees when owned by any person other than the owner of the land on which they stand are to be deemed chattels and not real property. Obviously trees and timber which have been cut are chattels. Hence, the bill seeks to have title to personal property quieted. Equity has no jurisdiction to quiet or protect title or right to personal property. Bailey v. Folsom, 207 Ala. 329, 93 So. 479; Mobile Towing & Wrecking Co. v. Hartwell, 206 Ala. 7, 89 So. 446.
Since there is no equity in either aspect of the bill, the appellant's demurrer to the bill should have been sustained and the bill dismissed.
III. The question to be considered now is whether or not the cross bill filed by B. C. Owen, a respondent under the original bill against Robert Henry Crew, also a respondent under the original bill, should be allowed to survive the dismissal of the original bill for want of equity.
It is generally recognized that the dismissal of the original bill does not necessarily carry with it the cross bill. The distinction is made that if the cross bill is defensive merely (having no independent equity in itself), dismissal of the original bill dismisses the cross bill. If, however, the cross bill sets up new facts, relating to the same subject matter and prays for affirmative relief in reference to it, and presents a case for equitable cognizance, and shows grounds for equitable relief which uphold the jurisdiction of the court independent of the original bill, the dismissal of the original bill does not carry with it the cross bill. Ex parte Conradi, 210 Ala. 213, 97 So. 569; Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450.
We think that there is independent equity in the cross bill and affirmative relief is sought. Hence the cross bill should survive the dismissal of the original bill.
But it is insisted by the appellant that no relief was available to the cross complainant, Owen, under the amendment to the cross bill filed the day preceding the trial of the cause, to which there was no answer or other pleading or on which there was no decree pro confesso. This contention is based on Rule 28(c) of the Alabama Equity Rules (Title 7 Appendix, Code of 1940), which states:
The record indicates that the appellant was present at the taking of the testimony and submission of the case. It further appears that the appellant failed to make any objection to the taking of testimony, but rather, that he had testimony introduced in his behalf and joined in the submission of the case.
When the court has jurisdiction of the subject matter and the parties before it, the want of pleading may be waived. In Atkins v. Atkins, 253 Ala. 43, 42 So. 2d 650, 653, this court said:
We consider that appellant's failure to make any objection to the trying of the cause, his introduction of evidence, and his joining in submission of the case, constitutes a waiver of the right claimed under Equity Rule 28(c), supra.
The appellant cites the case of Wahouma Sav. Bank v. Southern Plumbing & Heating Co., 220 Ala. 140, 124 So. 388, 391, to support his contention that no relief could be had under the amendment to the cross bill. The Wahouma case, stated, where the appellant failed to insist on an answer to his cross bill or move for a decree pro confesso, that, "The court will not be put in error for ignoring the appellant's prayer for relief under its cross-bill." This case did not intend to do away with the ruling holding that pleadings may be waived, which was set out in the recent case of Atkins v. Atkins, supra.
The appellant insists that the cross complainant, B. C. Owen, failed to show that he was in peaceable possession of the land in controversy, and that such failure to establish peaceable possession "destroyed the jurisdiction of the court over the cause and renders unnecessary a determination of any issue as to the contest of title."
It is unnecessary for this court to determine whether or not cross complainant Owen was in peaceable possession of the said land. The amendment to the cross bill, filed by B. C. Owen and discussed previously, was obviously filed under § 129, subdivision 5, Title 13, Code of 1940, and §§ 2-4, Title 47, Code of 1940, to establish and define an uncertain or disputed boundary line between coterminous landowners. The allegations of the amendment to the cross bill were substantially those required under these statutes. Its allegations show that the parties to the cross bill are coterminous landowners and that there is a dispute as to the true boundary line dividing the cross complainant's land from the land of the respondent, Robert Henry Crew. There can be no question that the jurisdiction of circuit courts as to equity matters includes the power "to establish and define uncertain or disputed boundary lines, whether the bill contains an independent equity or not." Section 129, subdivision 5, Title 13, supra; Whitehurst v. Kilpatrick, 266 Ala. 150, 94 So. 2d 868.
The rule is general and well recognized that in a suit in equity to determine a boundary line, the court has authority to determine all questions essential to final adjudication and settlement of the true boundary line. Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Atkins v. Cunningham, 222 Ala. 553, 133 So. 586; Smith v. Rhodes, 206 Ala. 460, 90 So. 349.
The case of Yauger v. Taylor, supra, states:
The appellant insists that the trial court erred in describing the line between the appellant and B. C. Owen; that the course of the line decreed by the court to be the true boundary line between the parties' lands differed from the course described in the pleadings. Such difference does not necessarily mean that the court erred in determining the boundary line. The case of Stansell v. Tharp, 245 Ala. 270, 16 So. 2d 857, 859, states that,
After carefully examining the record we consider that the line determined by the lower court as the true boundary line between the cross complainant, Owen, and the respondent, Crew, was supported by the evidence. Furthermore the rule is recognized that where the cause was heard ore tenus, the lower court's decree will be upheld on appeal unless it is palpably erroneous or manifestly unjust. Grayson v. George, 226 Ala. 106, 145 So. 427, and cases cited therein.
We therefore conclude that the portion of the lower court's decree which determined the true boundary line between the lands of the cross complainant, Owen, and the respondent, Crew, and quieted title thereto, was correct.
Since the demurrer to the original bill of complaint should have been sustained, no relief should have been granted under said original bill. The relief sought under the original bill of complaint and granted by the lower court was an injunction to enjoin Robert Henry Crew from interfering with complainant's cutting and removing of certain timber and an extension of time in which to cut and remove said timber from the disputed land. This relief could not be granted under the general prayer of the cross bill filed by B. C. Owen because such relief would be inconsistent with the allegations of said cross bill. Owen v. Montgomery, 230 Ala. 574, 161 So. 816; Sewell v. Walkley, 198 Ala. 152, 73 So. 422. Therefore this portion of the final decree must be reversed.
The remainder of the final decree is due to be affirmed.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | February 19, 1959 |
3cf092c0-4f6b-457c-97f3-bcf7a6429ce3 | Gordon v. State | 110 So. 2d 334 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 334 (1959)
Honor B. GORDON
v.
STATE of Alabama.
8 Div. 946.
Supreme Court of Alabama.
February 12, 1959.
*335 John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the petition.
W. A. Barnett, Florence, opposed.
PER CURIAM.
We are of opinion that reversible error is not made to appear in connection with the trial court's refusal to give defendant's written requested Charge No. 6. Although under our cases this charge does state a correct statement of the law, we are firmly convinced that the same rule of law was substantially and fairly given to the jury in the court's general charge and written Charge 7, given at the request of the defendant. Section 273, Title 7, Code 1940.
The judgment of the Court of Appeals is reversed.
Reversed and remanded.
LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur.
LIVINGSTON, C. J., and STAKELY and COLEMAN, JJ., dissent.
*336 COLEMAN, Justice (dissenting).
It is not open to question in this jurisdiction that in a criminal case, it is error to refuse Charge 6, for the refusal of which the Court of Appeals reversed the judgment of conviction, when that charge is not otherwise fairly and substantially covered in the instructions given to the jury. Amos v. State, 123 Ala. 50, 26 So. 524; Harris v. State, 123 Ala. 69, 26 So. 515; Mutual Life Ins. Co. of New York v. Maddox, 221 Ala. 292, 128 So. 383.
I agree with the Court of Appeals that Charge 6 was not covered by the charges given. The oral charge and the given charge instructed the jury that accused is presumed innocent and that he cannot be convicted until the evidence proves guilt beyond a reasonable doubt, but fail to instruct the jury that the presumption of innocence is to be regarded by the jury as a matter of evidence, etc. As was said in Coffin v. United States, 156 U.S. 432, 460, 461, 15 S. Ct. 394, 405, 39 L.Ed. 481:
The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist. While Rome and the Mediaevalists taught that, wherever doubt existed in a criminal case, acquittal must follow, the expounders of the common law, in their devotion to human liberty and individual rights, traced this doctrine of doubt to its true origin, the presumption of innocence, and rested it upon this enduring basis. The inevitable tendency to obscure the results of a truth, when the truth itself is forgotten or ignored, admonishes that the protection of so vital and fundamental a principle as the presumption of innocence be not denied, when requested, to any one accused of crime. The importance of the distinction between the two is peculiarly emphasized here, for, after having declined to instruct the jury as to the presumption of innocence, the court said: `If, after weighing all the proofs, and looking only to the proofs, you impartially and honestly entertain the belief,' etc. Whether thus confining them to `the proofs,' and only to the proofs, would have been error if the jury had been instructed that the presumption of innocence was a part of the legal proof, need not be considered, since it is clear that the failure to instruct them in regard to it excluded from their minds a portion of the proof created by law, and which they were bound to consider. `The proofs, and the proofs only,' confined them to those matters which were admitted to their consideration by the court; and, among these elements of proof, the court expressly refused to include the presumption of innocence, *337 to which the accused was entitled, and the benefit whereof both the court and the jury were bound to extend him." (Emphasis supplied.)
I am also of opinion that the majority of the Court of Appeals correctly concluded that refusal to give Charge 6 was not error without injury.
Without deciding whether or not the opinion of the Court of Appeals fully and completely sets out the evidence so as to permit this court to review the application of the doctrine of error without injury by the Court of Appeals, it is clear that the evidence as to guilt is in conflict.
In considering the question of error in refusing to charge on the presumption of innocence in a civil case on a policy of life insurance where the issue was suicide vel non, the following rule was stated:
The evidence was in conflict in this case and it is clear that the presumption of innocence has a field of operation. It is clear, therefore, that the substantial rights of the defendant were injured by excluding from the jury a part of the evidence created by law in this case.
For the reasons stated above, I would affirm the Court of Appeals.
LIVINGSTON, C. J., and STAKELY, J., concur in the foregoing views. | February 12, 1959 |
79f427a5-644e-4b6c-b07c-40fb3f622062 | Gardner v. Stevens | 111 So. 2d 904 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 904 (1959)
James V. GARDNER
v.
Leroy N. STEVENS et al., Members of Board of Revenue and Road Commissioners, Mobile County.
1 Div. 794.
Supreme Court of Alabama.
February 19, 1959.
Rehearing Denied May 21, 1959.
Vincent F. Kilborn and Benjamin H. Kilborn, Mobile, for appellant.
Jas. E. Moore, Mobile, for appellees.
MERRILL, Justice.
This is an appeal from an order of the circuit court denying a petition for writ of mandamus to the Board of Revenue and Road Commissioners of Mobile County, Alabama.
The appellant, pursuant to the provisions of Tit. 22, § 88, Code 1940, filed a written application with the Board of Revenue and Road Commissioners of Mobile County requesting permission to establish a cemetery *905 on certain described property in Mobile County. The application was referred to the Mobile County Board of Health "for investigation from a sanitary standpoint." The board of health submitted a favorable report to the county governing body. Thereafter, a public hearing was held and, at the conclusion, the application for permission to establish the cemetery was denied. Appellant then filed, in the Circuit Court of Mobile County, a petition for an alternative writ of mandamus requesting that the county governing body be required to issue to appellant a license to establish a cemetery on the described site upon payment of the proper fees and charges. Appellant's petition, as amended, avers that the approval of the county governing body is a mere ministerial function after the approval of the Mobile County Board of Health or, in the alternative, that the county governing body has abused its discretion and its disapproval of the application was arbitrary and capricious. A hearing was had with testimony taken orally before the trial court and the petition for writ of mandamus was denied.
The statute in question, Tit. 22, § 88, Code 1940, has not been construed by this court. It provides:
Appellant states in brief "It is the contention of the Appellant that the above statute makes approval by the appropriate governmental authority merely a ministerial function after an application has been approved by the board of health." We are unable to agree with this construction. If such were the case, there would be no necessity for filing the application with any *906 authority other than the county board of health, and the county board of health would not be limited to an "investigation from a sanitary standpoint." The statute also provides that when the report is received from the board of health, the governing body "shall either grant or deny the application, giving due weight in reaching either conclusion to the views expressed by the county board of health." This seems to indicate clearly that the Legislature intended to vest discretion in the governing body to deny the application even if it were approved from a sanitary standpoint.
Appellant argues that a construction which gives discretion to the governing body would render the statute unconstitutional. The question of the constitutionality vel non of § 88 was not raised in the lower court. The rule is that the constitutionality of a statute will not be decided in this court when the question was not presented in the lower court but was raised for the first time in a brief in this court. Riley v. Smyer, 265 Ala. 475, 91 So. 2d 820, and cases therein cited. We therefore, pretermit any consideration of the constitutionality of § 88.
Appellant also argues that the circuit court erred in allowing witnesses to testify who had not appeared before the board of revenue and road commissioners in the original hearing. Conceding, without deciding, that this be error, appellant is estopped to complain of it. Appellant, being the petitioner in the circuit court, introduced his evidence first, and the appellees objected and moved to exclude testimony offered by the appellant which had not been presented in the hearing before the county governing body. These objections and motions were overruled. The rule is that where the plaintiff first brought out testimony complained of, he cannot complain of the trial court's ruling admitting similar evidence introduced by the defendant. Bradford v. Birmingham Electric Co., 227 Ala. 285, 149 So. 729.
Having held that the statute confers upon the governmental authority the discretion either to grant or deny a petition for the establishment of a cemetery, the exercise of that discretion cannot be reviewed or revised by recourse to the writ of mandamus. Yeilding v. Bland, 184 Ala. 62, 63 So. 961; State ex rel. Ducourneau v. Langan, 149 Ala. 647, 43 So. 187; and while the exercise of the statutory discretion lodged with county governing bodies may be compelled by mandamus, the court will not direct the manner of the exercise of such discretion. State ex rel. City of Birmingham v. Board of Revenue of Jefferson County, 201 Ala. 568, 78 So. 964, and cases cited.
It follows that the circuit court did not err in denying the petition for writ of mandamus.
Affirmed.
SIMPSON, STAKELY, GOODWYN and COLEMAN, JJ., concur. | February 19, 1959 |
f299af9e-f464-4a0c-96aa-7d6c5db4a9fe | Whitehurst v. State | 288 So. 2d 160 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 160 (1973)
In re Joseph E. WHITEHURST
v.
STATE of Alabama. Ex parte Joseph E. Whitehurst.
SC 617.
Supreme Court of Alabama.
December 20, 1973.
William N. Clark, Rogers, Howard, Redden & Mills, Birmingham, for petitioner.
No brief for the State.
JONES, Justice.
Petition of Joseph E. Whitehurst for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Whitehurst v. State of Alabama, 51 Ala.App. 613, 288 So. 2d 152.
Writ denied.
COLEMAN, HARWOOD, BLOODWORTH and McCALL, JJ., concur. | December 20, 1973 |
cb78274a-59b8-4c62-aaac-e45082fdae82 | Blankenship v. City of Decatur | 115 So. 2d 459 | N/A | Alabama | Alabama Supreme Court | 115 So. 2d 459 (1959)
R. J. BLANKENSHIP et al.
v.
CITY OF DECATUR et al.
8 Div. 984.
Supreme Court of Alabama.
November 5, 1959.
Calvin, Gilchrist & Murphree, Decatur, for appellants.
Peach, Caddell & Shanks, John A. Caddell, Britnell & McEntire, Ben L. Britnell, Decatur, for appellees.
White, Bradley, Arant, All & Rose, Wm. Alfred Rose and Robt. R. Reid, Jr., Birmingham, amici curiae.
MERRILL, Justice.
Appellants, property owners and taxpayers in the City of Decatur, filed a bill in equity seeking a declaratory judgment and an injunction against appellees, City of Decatur and Housing Authority of the City of Decatur, enjoining the appellees *460 from carrying out a redevelopment and urban renewal plan known and designated as the "Well Street Urban Renewal Project."
Appellants contend that the redevelopment projects Act, Act 491, General Acts of Alabama, 1949, p. 713, and the urban renewal projects Act, Act 553, General Acts of Alabama 1955, p. 1210, which are listed as Tit. 25, Chaps. 10 and 11, §§ 96-112, Cumulative Pocket Part, Code 1940, do not authorize a redevelopment project in which all of the property acquired is to be resold to private individuals; that the statutes are unconstitutional and that appellees acted arbitrarily, unreasonably or capriciously in carrying out and approving said project.
The appellees defended on the grounds that the statutes do authorize redevelopment projects in which all of the property is to be resold to private individuals; that the statutes in question are constitutional and that the actions of appellees were not arbitrary, unreasonable or capricious.
The trial court denied all the relief sought after a full hearing and this appeal is from the final decree of the circuit court, in equity.
On January 16, 1956, the City Council of the City of Decatur adopted a resolution declaring that the Well Street area was a slum, blighted, deteriorated or deteriorating area appropriate for an urban renewal project and approving the undertaking by the Housing Authority of the City of Decatur of surveys and plans for an urban renewal project in that area. After various proceedings, the urban renewal plan was presented to the City Council by the Housing Authority at the meeting of the City Council on July 1, 1958, was taken under consideration and held over until the meeting of July 15, 1958, and finally, on August 5, 1958, a resolution was adopted, finding that the project was a slum and blighted area and qualified as an eligible project area under Tit. 25, Code 1940, as amended,: and that the urban renewal plan for the: project had been duly reviewed and considered. During all of that period from January 16, 1956, until the adoption of the resolution approving the plan on August 5, 1958, none of the appellants made any proposal or effort to rehabilitate the area by voluntary action. On August 5, 1958, a proposal was made requesting a further delay of six months, which proposal was rejected by the City Council.
The area statistics for the property to be cleared, as shown in Part 1 in the application for loan and grant, being the appellees' Exhibit No. 5, are as follows:
Appellants state in brief as follows:
This question is answered in the negative in the cases of Adams v. Housing Authority of City of Daytona Beach, Fla., 60 So. 2d 663; Edens v. City of Columbia, 228 S.C. 563, 91 S.E.2d 280; and Housing Authority of City of Atlanta v. Johnson, 209 Ga. 560, 74 S.E.2d 891, and fully support appellants' contention that the redevelopment and urban renewal project as undertaken under the applicable statutes was unconstitutional.
We note in passing that following the decision in the last cited case, the Constitution of the State of Georgia was *461 amended and new legislation was upheld in Bailey v. Housing Authority of City of Bainbridge, 214 Ga. 790, 107 S.E.2d 812.
The partinent part of § 23 of the Constitution reads:
We have said that the "public use" as used in § 23 should be given an elastic or liberal meaning, and that "the great weight of authority holds that the result and purpose to be accomplished under the act in question was for a public use." Brammer v. Housing Authority of Birmingham Dist., 239 Ala. 280, 195 So. 256, 258. That case was concerned with the validity of the act which later was codified as Tit. 25, §§ 5-30, Code 1940, where similar questions to those now before us were raised.
Later, in Opinion of the Justices, 254 Ala. 343, 48 So. 2d 757, 760, rendered October 25, 1950, in considering Act 491, General Acts of Alabama 1949, p. 713, now listed in the Cumulative Pocket Part as Tit. 25, §§ 96-104, this court, including four present members, followed the Brammer case and said:
A later annotation appears in 44 A.L.R.2d 1414 et seq.
At that time, the cases relied on by appellants had not been decided, nor had the following cases from additional jurisdictions been decided, all of which support the position taken by this court in the Brammer case, 239 Ala. 280, 195 So. 256, and Opinion of the Justices, 254 Ala. 343, 48 So. 2d 757; Rowe v. Housing Authority of City of Little Rock, 220 Ark. 698, 249 S.W.2d 551; Babcock v. Community Redevelopment Agency of City of Los Angeles, 148 Cal. App. 2d 38, 306 P.2d 513; Gohld Realty Co. v. City of Hartford, 141 Conn. 135, 104 A.2d 365; Randolph v. Wilmington Housing *462 Authority, Del., 139 A.2d 476; Alanel Corp. v. Indianapolis Redevelopment Commission, Ind., 154 N.E.2d 515; State ex rel. Fatzer v. Urban Renewal Agency, 179 Kan. 435, 296 P.2d 656; Miller v. City of Louisville, Ky., 321 S.W.2d 237; Herzinger v. Mayor & City Council of Baltimore, 203 Md. 49, 96 A.2d 3, 98 A.2d 87; Worcester Knitting Realty Co. v. Worcester Housing Authority, 335 Mass. 19, 138 N.E.2d 356; Housing and Redevelopment Authority of City of St. Paul v. Greenman, Minn., 96 N.W.2d 673; Velishka v. City of Nashua, 99 N.H. 161, 106 A.2d 571, 44 A.L.R.2d 1406; State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N.E.2d 778; Nashville Housing Authority v. City of Nashville, 192 Tenn. 103, 237 S.W.2d 946; Starr v. Nashville Housing Authority, D. C., 145 F. Supp. 498, affirmed 354 U.S. 916, 77 S. Ct. 1378, 1 L. Ed. 2d 1432; Hunter v. Norfolk Redevelopment and Housing Authority, 195 Va. 326, 78 S.E.2d 893; David Jeffrey Co. v. City of Milwaukee, 267 Wis. 559, 66 N.W.2d 362.
While it is true that Act 553, listed in the Pocket Part as Tit. 25, §§ 105-112, had not been enacted when the Opinion of the Justices, 254 Ala. 343, 48 So. 2d 757, was rendered, there is nothing in Act 553 which would affect the opinion rendered on Act 491. The instant proceedings, regardless of name, are much more concerned with a redevelopment project (Act 491) than with an urban renewal project (Act 553).
There is no new or different question here presented. We are faced with a choice of adopting a minority view, not without appealing argument, or of following a carefully considered opinion of the members of this court which is part of the majority opinion consisting of at least twenty-six States. We choose to follow our previous opinion and hold that Acts 491 and 553, listed as Tit. 25, §§ 96-112, Code 1940, Pocket Part, authorize the redevelopment project sought by appellees, and the statutes do not violate § 23 of the Constitution.
Appellants also argue that the action of appellees was arbitrary, unreasonable or capricious for including some properties which are not substandard, for including some fringe areas, and in not permitting the property owners six months in which to improve or remove the present buildings on the property.
In Brammer v. Housing Authority of Birmingham Dist., 239 Ala. 280, 195 So. 256, 258, we said:
The evidence shows that the plans of the Housing Authority were approved by the City Council after much and lengthy consideration. In Alosi v. Jones, 234 Ala. 391, 174 So. 774, 776, this court said:
The trial court heard and saw the witnesses and had all the maps and documents before him and reached the conclusion that "the respondents have not been guilty of arbitrary or unreasonable actions in the steps taken pursuant to those statutes in furtherance of the Project plans but their actions are valid and authorized by and in compliance with those statutes."
There was evidence to support this finding, both as to area and as to the denial of the six months extension, since it came at such a late date, August 5, 1958, when the final resolution was adopted.
From the pictures of each structure in the area which are in evidence, and testimony in the record, there is no question but that most of the territory is a slum area. In Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E.2d 732, 735, it was said:
And the mere fact that some of the buildings in the area are standard and substantial does not require that they be omitted from the operation of the project. Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27; Starr v. Nashville Housing Authority, D.C., 145 F. Supp. 498, affirmed 354 U.S. 916, 77 S. Ct. 1378, 1 L. Ed. 2d 1432; Kaskel v. Impellitteri, 306 N.Y. 73, 115 N.E.2d 659, certiorari denied 347 U.S. 934, 74 S. Ct. 629, 98 L. Ed. 1085; Gohld Realty Co. v. City of Hartford, 141 Conn. 135, 104 A.2d 365; Herzinger v. Mayor & City Council of Baltimore, 203 Md. 49, 96 A.2d 3, 98 A.2d 87; State on Information of Dalton v. Land Clearance for Redevelopment Authority of Kansas City, 364 Mo. 974, 270 S.W.2d 44; Foeller v. Housing Authority of Portland, 198 Or. 205, 256 P.2d 752; Babcock v. Community Redevelopment Agency, 148 Cal. App. 2d 38, 306 P.2d 513; Velishka v. City of Nashua, 99 N.H. 161, 106 A.2d 571, 44 A.L.R.2d 1406; Hunter v. Norfolk Redevelopment and Housing Authority, 195 Va. 326, 78 S.E.2d 893; State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N.E.2d 778; Worcester Knitting Realty Co. v. Worcester Housing Authority, 335 Mass. 19, 138 N.E.2d 356, 358. In the last cited case, the court said:
The decree of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | November 5, 1959 |
7e659ac7-776f-46ec-88b9-e41d3521c601 | Walling v. Couch | 288 So. 2d 435 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 435 (1973)
Wilta June WALLING
v.
J. B. COUCH.
SC 383.
Supreme Court of Alabama.
December 13, 1973.
Rehearing Denied January 24, 1974.
Harris, Harris, Shinn & Harris, Decatur (on appeal only), for appellant.
Sherman B. Powell, Decatur, for appellee.
PER CURIAM.
As the facts of this cause are fully stated in the trial court's order set forth in the dissent of Mr. Justice Jones, it is unnecessary to repeat them here.
The principal issue on this appeal is whether the Dead Man's Statute, Title 7, § 433, Code of Alabama, as last amended, applies to protect those claiming through a deceased person by virtue of an inter vivos transaction. We hold that it does and reverse and remand the decree of the trial court in this cause.
In considering our case law on this point, we find there are two conflicting lines of cases. As noted in the dissent, the cases of Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251 (1948) and Nelson v. Howison, 122 Ala. 573, 25 So. 211 (1899), stand for the proposition that the Dead Man's Statute does not protect one who succeeds to the rights of a decedent by a transaction effective during the decedent's lifetime. Additionally, the cases of Goodgame v. Dawson, 242 Ala. 499, 7 So. 2d 77 (1942) and Jennings v. Provident Life & Accident Ins. Co., 246 Ala. 689, 22 So. 2d 319 (1945), state, in dicta, the same proposition. According to Shepard's Alabama Citations, neither of the Jennings cases has *436 ever been cited while the Nelson case has been cited only three times. The dicta in Goodgame has been cited three times also.
Contrary to the Jennings and Nelson cases, there is an established line of our decisions which holds that the Dead Man's Statute does apply to those who succeed to the rights of a decedent by an inter vivos transaction. Among these cases are Federal Land Bank of New Orleans v. Curington, 233 Ala. 263, 171 So. 361 (1936); Smith v. Cook, 220 Ala. 338, 124 So. 898 (1929); Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115 (1950) (a leading case in the field); and, McCulloch v. Roberts, 290 Ala. 303, 276 So. 2d 425 (1973), our most recent pronouncement on this subject. The last four mentioned cases have been relied upon and cited as authority for this proposition of law twenty-one times according to Shepard's Alabama Citations.
This latter line of cases appears to represent the clear weight of authority in this state on this subject. Moreover, we are convinced that these cases state the sounder position. The policy objective underlying the Dead Man's Statute is to prevent testimony by living witnesses as to transactions with a person who is no longer alive to contradict such testimony. This policy applies equally as well to the inter vivos transaction as to the devise and descent situations.
As applied to the instant case, we hold that the Dead Man's Statute rendered incompetent all testimony by complainant, J. B. Couch, concerning conversations between himself and his deceased wife respecting an alleged agreement.
It appears from the record that the alleged agreement (the foundation for an alleged constructive trust) between J. B. Couch and Juliette Couch was first introduced on the direct examination of J. B. Couch. The rule in Alabama is that the cross-examination of a witness upon a matter brought out by the other side does not waive the incompetency or make competent the evidence offered. Milton Realty Co. v. Wilson, 214 Ala. 143, 107 So. 92 (1926). The incompetency of J. B. Couch to testify as to conversations with his deceased wife during her lifetime was not waived by appellant's cross-examination of Mr. Couch with regard to those conversations. [Parenthetically, we note this cause was tried under the provisions of Title 7, § 372(1), Code of Alabama, Recompiled 1958].
It is thus that we conclude the trial court erred in permitting J. B. Couch to testify concerning conversations with his now deceased wife. And, in light of the fact that Couch's incompetent testimony constitutes the only evidence having any tendency to establish the alleged agreement (made the basis for a constructive trust), we need not reach the other contentions presented by the parties on this appeal.
Reversed and remanded.
MERRILL, COLEMAN, BLOODWORTH, MADDOX and McCALL, JJ., concur.
HARWOOD, FAULKNER and JONES, JJ., dissent.
HEFLIN, C. J., not sitting.
JONES, Justice (dissenting).
Argued assignments of error other than those raising the Dead Man's Statute go to the weight of the evidence to support the chancellor's decree finding a constructive trust. Concededly, were the testimony of J. B. Couch ruled incompetent as violative of the Dead Man's Statute, the appellants' contentions would prevail. My only point of disagreement with the majority opinion relates to admissibility vel non of Couch's testimony.
This is an appeal by Wilta June Walling and Arthur E. Walling from a final decree in favor of J. B. Couch involving a suit by J. B. Couch against the Wallings and Central Plaza Bank and Trust Company, Executor *437 of the will of the complainant's wife, Juliette Logan Blow Couch, to establish and enforce a trust to the extent of $10,000 in the Wallings' indebtedness to Mrs. Couch.
The indebtedness, evidenced by a promissory note and secured by a mortgage on real estate described in the Bill of Complaint, was the unpaid balance of the purchase price of this real estate which was sold by Mrs. Couch to the Wallings on August 31, 1970. The purchase price was $27,000. The original indebtedness, after a down payment of $4,050, was $22,950, bearing interest at 8% per annum and was payable in monthly installments of $100 until September 5, 1972, at which time the total principal balance was payable.
The Couches were married in November, 1964, at which time she had a substantial amount of cash, and he owned approximately 80 acres of farm land in Morgan County, Alabama, which was subject to an indebtedness of $2,000.
Couch alleges that shortly after their marriage, he and Mrs. Couch entered into an oral agreement with each other whereby he would convey fee simple title in said farm land to his wife, who would pay for the construction of a home on said farm land. He stated that they agreed that his interest in said property was $10,000; that Mrs. Couch would pay for all improvements to the property; that in the event the property was sold during the lifetime of the parties, he would receive $10,000 from the consideration paid for the property; and that, to protect his interest for conveying title to Mrs. Couch, they discussed the execution of joint wills consummating the agreement and protecting each of the parties.
On December 8, 1964, the Couches executed wills, each leaving their respective estates to the other.
On April 16, 1965, Couch executed a deed vesting title to the property in himself and his wife as joint tenants with right of survivorship.
In November, 1965, the construction of the aforementioned home was completed at a cost of $11,500.
On March 3, 1966, Couch executed a deed conveying to his wife all of his interest in said property.
Couch stated that he did not pay any of the construction costs on said house; however, he stated that he paid between $4,000 and $5,000 for such improvements as a barn, fences, and clearing the land.
During the fall of 1969, the Couches separated and were divorced. They remained separated for two months during which time Mrs. Couch revoked her will. The Couches then remarried and on December 12, 1969, Mrs. Couch made another will leaving all of her property to her husband.
Sometime after November, 1964, and prior to the sale of said realty to the Wallings, Mrs. Couch paid the $2,000 that the appellee owed on the property; however, Couch alleged and testified that he repaid the $2,000 to his wife.
On August 31, 1970, Mrs. Couch (joined by her husband) sold the real estate to the Wallings.
In September, 1970, the Couches moved to St. Petersburg, Florida. In November, 1970, following an argument with his wife, Mr. Couch returned to Alabama. He stated that he subsequently attempted to visit his wife in Florida but that Mrs. Couch's sisters would not let him in the house to see her.
On November 23, 1970, Mrs. Couch executed a will in Florida leaving all of her property to her sisters and naming Central Plaza Bank and Trust Company as her executor. Couch had no knowledge of this will until after his wife died, which occurred in Florida on February 26, 1971.
The Wallings, appellants, received service of the current suit on July 20, 1971. *438 Subsequently, they paid the unpaid balance on the real estate indebtedness to Mrs. Couch's executor, Central.
At the trial, Ann Thompson, Margie Patterson, Farrell Couch, and Emmett Couch, all witnesses for Couch, testified to conversations with Mrs. Couch. Each of said witnesses testified that Mrs. Couch said if she (Mrs. Couch) were living when the Wallings paid the indebtedness on the property, Mr. Couch would get his share. However, they all testified that Mrs. Couch never mentioned the specific amount that Mr. Couch was to receive. They also stated that Mrs. Couch said if she died first, Mr. Couch would get the property (or the money) and if he died first, she would get the property (or the money).
We set forth in haec verba the decree issued by the Honorable Newton B. Powell, Circuit Judge of Morgan County:
"This cause coming on to be further heard is submitted in open court after oral hearing of the evidence for final decree on the pleadings and proof. The decree of May 3, 1972, sustaining demurrer to the plea in abatement of Central Plaza Bank & Trust Company states the facts with the additional statement herein, and this will not be repeated. Pending this suit, and after all respondents had been served with process and a copy of the bill of complaint and had appeared personally in open court at one or more hearings in this proceedings, the respondents, Wallings, paid to the respondent, Central Plaza Bank, the unpaid balance of the purchase price on the real estate. The money was not placed in the jurisdiction of the Court, and the respondent, Central Plaza Bank, contends that the Court does not have jurisdiction over it since it is a foreign corporation not doing business in Alabama. It will be noted that the bill of complaint prays for general relief.
"The Court finds that the complainant, J. B. Couch, and his wife, Juliette Couch, entered into an oral agreement as stated in the statements of facts in the decree of May 3, 1972, herein with reference to the real estate and the purchase price to be received therefrom. This was unenforceable as a mere agreement, but as a part of a fraudulent scheme it requires more consideration which will be noted below. It is recognized that Title 20, Section 3(6), Code of 1940 prohibits an oral agreement to make a will, and that Title 47, Section 147, Code of 1940 prohibits an oral trust in lands. These sections of the Code deal with oral agreements as such; they do not prohibit an oral agreement from being a part of a fraudulent scheme. This issue will be considered. The agreement between J. B. Couch and Juliette Couch serves as a background for the contention that a constructive trust developed not only as to the proceeds of the sale, but also as to the mortgage lien and the legal title to the real estate which was held by Juliette L. Couch at the time in question. A constructive trust is one which is created by operation of law by reason of a fraud or some other sharp practice. In such cases equity imposes a constructive trust on the subject property as long as it is not in the hands of an innocent purchaser. When it falls into the hands of an innocent purchaser without notice, a like trust is imposed upon the purchase price, or any other new form into which the property has been converted. Pomeroy's Equity Jurisprudence, 4th Edition, Section 1051; Hutchinson et al. v. National Bank of Commerce, 145 Ala. 196, 41 So. 143; Ex parte Knowles v. Canant, 255 Ala. 331, 51 So. 2d 355. A constructive trust is a device used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs. Putnam v. Putnam, 274 Ala. 472, 150 So. 2d 209.
"Time marriage of the complainant and Juliette L. Couch created between them a relationship of confidence and trust exacting the utmost good faith in their dealings with each other. Putnam v. Putnam, supra. The Statute of Frauds applies to agreements; it does not apply to prohibit relief based on fraud, though a part of the *439 fraud may be an agreement. But, since the crux of the rights of the complainant as determined by the Court is not the validity of the agreement between the husband and wife, it is not necessary that the agreement be a strictly legal one in order to furnish an equitable right. The Court finds that Juliette Couch practiced legal fraud on her husband, J. B. Couch, beyond and in addition to the breach of the agreement. When she repudiated the agreement between herself and her husband by the cancellation of the will made in pursuance of the contract, she not only breached the agreement, but also furnished the final phase of the evidence of a fraud against her husband which started with her obtaining the deed to the land and her husband's $10,000 interest in the same by means of a fraudulent scheme. The Court further finds that her promise to restore the $10,000 which her husband had invested in the land was made with no intentions of performing the same. It was this dereliction of duty on the part of Juliette L. Couch that is the basis of the complainant's right and not the original oral agreement nor the mere breach of the oral argument. Pomeroy's Equity Jurisprudence, 4th Edition, Volume 3, Section 1055(2). This being a constructive trust which comes into being by operation of law under certain conditions, the statute of frauds does not apply to it. Pomeroy's Equity Jurisprudence, 4th Edition, Volume 3, Section 1040. If the statute of fraud applied in such cases, it would be necessary for the guilty party to record his fraud in writing and sign the same before such trust could be created. Obviously there were never any intentions of applying the statute of frauds to such cases. The case of Putnam v. Putnam, supra, is an example of the cases in which our courts have recognized the theory of constructive trust in dealings between husband and wives in order to protect the interests of the parties. The simplest form of the constructive trust is the case in which one furnishes the purchase money and another takes title to real estate in himself or another contrary to the understanding between parties. This is by no means the entire field of operation of constructive trusts. Pomeroy has said:
"It follows that as between J. B. Couch and his wife, Juliette L. Couch, a constructive trust of all interest held by her in the real estate in question and the proceeds therefrom came into being to secure J. B. Couch's interest to the $10,000 in and to said real estate, because of the circumstances as stated above. This constructive trust was created between the parties, and the respondent, Central Plaza Bank, etc., stands in the shoes of Juliette Couch.
"In addition to the case of fraud made by the complainant, the Court finds that the agreement of J. B. Couch and Juliette Couch to make mutual wills, based upon a consideration and executed by the making of the wills, was valid. Here as in Larkins v. Howard, 252 Ala. 9, 39 So. 2d 224, the enforcement of rights under executed agreements to make a will is not within the Statute of Frauds, and though a will is testamentary in frame and verbage, and as such oral agreements to make a will is void, it is also a contract. When based upon a valuable consideration, a paper in form of a will may constitute an irrevocable contract. Under such state of facts the parties obtain contractual rights in the property.
"It is noted that if the `Dead Man's Statute' ever had any application to the proof of the agreement between J. B. Couch and Juliette Couch it was eliminated as between J. B. Couch and the Wallings *440 when the Wallings on cross examination of J. B. Couch brought out the agreement.
"Since Central Plaza Bank is beyond the jurisdiction of the Court, the question of judgment against or in favor of the respondent, Central Plaza Bank, on the merits is not considered. The amendment to the answer of Central Plaza Bank to the effect that pendente lite the Wallings paid in full their mortgage debt, and that their lien on the subject property has been extinguished is significant. The effect is to remove from the jurisdiction of the Court pendente lite the res of the litigation as between the complainant and Central Plaza Bank. The Court holds that the purchase money and respondent, Central Plaza Bank, are now beyond the jurisdiction of the Court; the Court is left to deal with the parties and subject matter remaining within its jurisdiction.
"At the time of the acts on the part of Juliette L. Couch which brought into being the constructive trust, she obtained the legal title to the real estate in question. The same is true as to contract. This legal title to the real estate was held subject to the constructive trust on the same created by the acts set forth above and subject to the contract. The respondents, Walling, now hold this interest in the real estate which was subject to the constructive trust and contract unless the complainant's rights have been eliminated by some operation of law or acts of the complainant. If the Wallings took this title at the time they extinguished the mortgage debt as innocent purchasers, they hold it free of all encumbrances material to this case. One is an innocent purchaser and entitled to protection as such when (1) he is the purchaser of the legal as distinguished from an equitable title; (2) he purchases the same in good faith; (3) he parts with value as a consideration therefor by paying money or other thing of value, assuming a liability or incurring an injury; (4) he has no notice, and knows no fact sufficient to put him on inquiry as to complainant's equity, either at the time of his purchase, or at or before the time he pays the purchase money, or otherwise parts with such value. All of these conditions must concur. Larkins v. Howard, 252 Ala. 9, 39 So. 2d 24; Orso v. Cater, 272 Ala. 657, 133 So. 2d 864. `He not only must have purchased in good faith . . ., but he must have had no knowledge or notice of prior rights at the time of his purchase or at any time prior to payment of the purchase-price . . .' Thompson on Real Property, Volume 8, Section 4287, cited in Holgerson v. Gard, 257 Ala. 579, 60 So. 2d 427. At the time the Wallings paid the balance of the purchase price to Central Plaza Bank, they had actual notice of the claim of J. B. Couch. They had been made parties to this suit; one had appeared in open court on at least one occasion for proceedings in this suit. With his knowledge they paid the balance of the purchase price to the respondent, Central Plaza Bank. They are, therefore, not innocent purchasers, having parted with their money after notice of the claim. They, therefore, hold all title and interest in and to said real estate which they acquired from Central Plaza Bank as the representative of Juliette L. Couch, subject to the constructive trust and the contract to the extent of $10,000 in favor of J. B. Couch, unless by signing the deed with Juliette Couch to the Wallings, J. B. Couch is estopped to assert his rights. One is not in a position in equity to claim estoppel in the absence of some change of position to his detriment when he has notice of a fraud which induced the husband of his grantor to join as his grantor in a conveyance before the purchase price is paid. Such is the case here. The respondents, Wallings, could have protected themselves by interpleading the purchase price or seeking directions from the Court as to what course to pursue after being made parties to this suit. This they were not required to do, but they assumed the risk of failing to do so by paying the purchase price with full knowledge of the complainant's claim. The Court is of the opinion that the complainant is not estopped to assert his claim.
*441 "It is, THEREFORE, ORDERED, ADJUDGED AND DECREED that a lien on the subject real estate is hereby established in favor of the complainant, J. B. Couch, to the extent of $10,000. The said lien of J. B. Couch on said real estate may be extinguished by any one by the payment to the Register of this Court within sixty days from the date of the filing of this decree the sum of $10,000, which sum if paid will be forthwith paid to the said J. B. Couch or his solicitor of record. Upon the payment of said sum and the costs of this proceeding, all rights of the said J. B. Couch will be extinguished in and to said lands.
"Upon the failure of anyone to make such payment, the Register of this Court is hereby ordered and directed to sell the real estate at public outcry at the Courthouse door of this county during the legal hours of sale on April 10, 1973. Before making such sale, the Register will advertise the same in a newspaper of general circulation in Morgan County for three times on three successive weeks prior to said sale. At the time of the sale she will offer the same to the highest and best bidder for cash; she will sell the same, and receive the purchase price. She will report the same to the Court in writing. Her report will lie on file for one day during which time any party to this suit may file objections and exceptions thereto. At the end of said time, the Register will deliver the file of this case, together with all objections and exceptions to her report, to the undersigned Judge of said Court for further action herein.
"Because of matters occurring pendente lite, IT IS HEREBY FURTHER ORDERED AND DECREED that this Court does not have jurisdiction over the respondent, Central Plaza Bank and Trust Company, a Corporation. No rights of said respondent are adjudicated, and nothing herein shall be construed as an adjudication of any rights or interest of the said Central Plaza Bank and Trust Company, a Corporation, as executor of the estate of Juliette Logan Blow Couch, or in any other capacity. Likewise, nothing herein contained shall be construed as adjudicating the rights of any parties to this suit or any other persons in relation to the said Central Plaza Bank and Trust Company, a Corporation, on any of the issues of this suit. The said Central Plaza Bank and Trust Company, a Corporation, is hereby discharged.
"[Legal description of subject real estate.]
"The Court retains jurisdiction of this cause for such other orders and proceedings herein as may seem proper and just.
"This the 9th day of January, 1973.
The primary issues to be considered on this appeal are raised in the appellants' contention that Couch was incompetent to testify relative to a transaction with Couch's deceased wife.
The appellants (Wallings) contend that the Dead Man's Statute, Title 7, § 433, Code of Alabama 1940, as amended, applies to protect those claiming in succession to a deceased person just as it does to the estate of the deceased and excludes testimony of the living party as to a transaction between him and the deceased, where his testimony adversely affects the interest of a grantee of the deceased. In addition, they contend that cross examination of an incompetent witness in reference to matters brought out on direct examination does not waive his incompetency.
The chancellor, in holding that J. B. Couch was competent to testify as to the agreement with his wife, stated as follows:
The appellants rely on Milton Realty Co. v. Wilson, 214 Ala. 143, 107 So. 92, for the proposition that the rule in Alabama is that cross examination of an incompetent witness upon a matter brought out by the other side does not waive the incompetency or make competent the evidence offered. The Milton case, supra, also held no objection to the evidence was required by the statute. These are correct statements of the law in Alabama. The appellants are also correct in their contention that the agreement between J. B. Couch and Juliette Couch was first introduced on the direct examination of J. B. Couch.
Nevertheless, I would hold that the circuit court was correct in holding that J. B. Couch's testimony was competent and that it did not come within the exclusion set out in Title 7, § 433, Code of Alabama 1940 (recomp. 1958).
The contention that J. B. Couch was incompetent to testify to the agreement with his deceased wife can be summarized by considering Federal Land Bank of New Orleans v. Curington, 233 Ala. 263, 171 So. 361 (1936). In that case, this Court held that the spirit of the Alabama Dead Man's Statute prohibits the testimony of the living party to a transaction with the deceased against the party to whom his interest is opposed, when the deceased person's estate, or that of his grantee or heir, is interested in the result of the suit. The Court also held that the rule applies to protect those claiming in succession to the deceased, the same as the estate of the deceased, when the other conditions exist.
That argument raises the issue of whether or not the Alabama Dead Man's Statute can silence one party, a survivor to a real estate agreement, as to testimony considered by an equity court in creating a fraud rectifying constructive trust in order to protect the other party who claimed title through the deceased by a separate inter vivos transfer and where the estate or a successor thereto, is not interested in the results of a proceedings. Are the appellants such successors or grantees as are contemplated by the Dead Man's Statute and the case law interpreting such statute?
The Alabama Dead Man's Statute does protect heirs and others claiming in succession, Goodgame v. Dawson, 242 Ala. 499, 7 So. 2d 77 (1942), or privity, Niehuss v. Ford, 251 Ala. 529, 38 So. 2d 484, to the deceased, but it does not exclude testimony offered against one who took from the deceased through an inter vivos transaction. In Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251, this Court held as follows:
The words "succession", "successor", etc., when used in the context of the exclusionary rule in the Dead Man's Statute, do not refer to inter vivos transactions. They contemplate the acquisition of rights upon the death of another.
The appellants rely primarily on three cases: Hodges v. Denny, 86 Ala. 226, 5 So. 492 (1889); Federal Land Bank of New Orleans v. Curington, supra; Smith v. Cook, 220 Ala. 338, 124 So. 898 (1929).
Hodges is not in point. That case involved a suit by a transferee of a promissory note against the personal representative of the maker. Justice Clopton, speaking for the Court, held that the transferrer was not a competent witness, on the part of the transferee as to any transaction with the deceased. The case restated the rule that the statute excludes the living from testifying to any transaction between himself and the dead, where the effect of the evidence is to diminish the rights of the deceased or those claiming under him. *443 However, in the case at bar, there is no contention that the estate is interested nor are the Wallings successors; and, accordingly, Hodges is not applicable.
The other two cases relied on by the appellants appear to be in conflict with the inter vivos transaction rule as set out in the Jennings case, supra.
In Federal Land Bank of New Orleans v. Curington, supra, Justice Foster, speaking for the Alabama Supreme Court, excluded the testimony of the complainant relating to an inter vivos transaction with her husband. Neither the estate nor a successor thereto was interested in the results of the suit. However, the case has been cited as authority for the proposition that the Dead Man's Statute's exclusion applies to those claiming in succession to the deceased. Goodgame v. Dawson, supra; Jennings v. Provident Life & Accident Ins. Co., 246 Ala. 689, 22 So. 2d 319; Jennings v. Jennings, supra; Niehuss v. Ford, supra; Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115; Campbell v. Laningham, 274 Ala. 138, 145 So. 2d 824; and "The Dead Man's Rule in Alabama," Alabama Law Review, V. 26, 403, 406 (1971).
In the Federal Land Bank case, supra, the Court does specifically state that "The rule applies to protect those claiming in succession to the deceased the same as the estate of the deceased, when the other conditions exist." However, the sentence preceding this rule was as follows:
Justice Foster cited no direct authority for that statement. The words "succession" and "his grantee" are important in examining the decision. The respondent, Federal Land Bank, was the "grantee" of the deceased, but the respondent's interest was acquired prior to the death of the complainant's husband. And, as already noted, the complainant's excluded testimony related to a completely inter vivos transaction. The "claiming in succession to the deceased" rule set out in the Federal Land Bank opinion and relied upon by the authorities cited above cannot be taken out of context. The appellants in the case at bar obviously did not take the rule out of context and understandably relied on the Federal Land Bank case, supra, as authority for extending the meaning of the word "succession" to include a "grantee" who acquired his interest during the life of the deceased. It is interesting to note that five years after Federal Land Bank, Justice Foster, again speaking for the Court, in Goodgame v. Dawson, supra, stated as follows:
For the foregoing reasons, I would expressly overrule Federal Land Bank v. Curington, supra.
The last case relied on by the appellants in their contention that Couch was not competent to testify as to the agreement with his, the appellee's, deceased wife is Smith v. Cook, supra. That case involved a suit to establish a disputed boundary line. As set out in the Wallings' brief at page 53, Mr. and Mrs. Smith claimed by adverse possession to an alleged line which they contended had been agreed upon by them and by Cook's predecessor in title who died after he had conveyed to Cook. In ruling in Smith that "The testimony of Mrs. Smith in this connection is not admissible under [the Dead Man's Statute] because of the death of the predecessor in title of appellee with whom she alleges the agreement was made", Justice Foster, as he did seven years later in the Federal Land Bank case, supra, failed to recognize that if the proposed testimony involved an inter vivos transaction with a party subsequently *444 deceased, and if the estate of the deceased or a successor thereto was not interested in the results of the suit, the exclusionary rule does not prohibit the proposed testimony. Therefore, I would overrule Smith v. Cook, supra, and affirm the trial court.
HARWOOD and FAULKNER, JJ., concur. | December 13, 1973 |
3ef58c8b-2ee9-499d-bd9f-344d650a7561 | Flowers v. State | 113 So. 2d 344 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 344 (1959)
Frank FLOWERS
v.
STATE of Alabama.
6 Div. 278.
Supreme Court of Alabama.
February 12, 1959.
Rehearing Denied June 25, 1959.
*345 Wm. W. Ross, Birmingham, for appellant.
John Patterson, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
MERRILL, Justice.
This is an appeal under the statutes providing for an automatic appeal from a death sentence, Code 1940, Tit. 15, § 382(1) et seq.
Appellant was indicted and convicted for killing his wife, Dorothy. Appellant and Dorothy lived two doors from Clara McIntosh. The State's evidence showed that appellant had given Dorothy a physical beating in the front door of their house and Clara had prevailed upon him to desist and Dorothy had come over to Clara's house for treatment of her wounds. Appellant came to Clara's house a few minutes later, left, and subsequently returned and began to stab Dorothy with a butcher knife. Five stab wounds were made on her body and she died on the floor at Clara's house. The police were called, and they arrested appellant. He made a voluntary oral and, later, a voluntary written statement that he killed Dorothy, the only provocation being that she was drunk or drinking and was spending his money. There was testimony that when appellant stabbed Dorothy the first time, she fell to the floor, that he got astride her body and stabbed her several more times, then got up and put his foot on her body and pressed the body four or five times causing blood to spurt from the wounds he had inflicted. One of the police officers who made the arrest testified that appellant stated that "he went up there to kill her and if he had not, he would have went back and finished it."
Appellant entered pleas of not guilty and not guilty by reason of insanity. There is ample evidence in the record to support the verdict of the jury.
At the close of the opening argument of the deputy solicitor, counsel for appellant made a motion for a mistrial based upon three different statements presumably made by the solicitor in his argument. The record does not show what was said in argument, but shows the following:
"The Court: Overrule your motion.
"Mr. Ross: I except."
We have held that where the argument of one's counsel passes beyond the bounds of legal propriety, it is the duty of opposing counsel to object specifically, and point out substantially the language deemed objectionable; and the record should disclose with reasonable certainty what was said in the court below, in order that the appellate court may review it. Mincy v. State, 262 Ala. 193, 78 So. 2d 262; *346 Stephens v. State, 250 Ala. 123, 33 So. 2d 245; Ferguson v. State, 36 Ala.App. 358, 56 So. 2d 118. The quoted motion and the grounds assigned did not meet these requirements and had no more effect than for counsel to move for a mistrial without assigning any grounds therefor.
The record does disclose that within ten days after the court reporter filed the transcript of the evidence with the clerk, appellant filed objections to the transcript with the following conclusion:
A notation appears on this document that it was set for hearing by the trial judge on May 23, 1958, at 9 A.M. No other information appears. The statutes, Act No. 886, General Acts of Alabama, 1951, p. 1527, 1955 Cumulative Pocket Part, Tit. 7, § 827(1a), provides that the "hearing of objections and the ruling of the court thereon shall be concluded within a period of ninety (90) days from the date of the taking of the appeal", where no extension of time is granted by the trial court. Here, the appeal was taken on February 28, 1958. The hearing was set within the ninety day period, but no hearing or ruling appears to have been had. Applying the same rule here as we apply to a motion for a new trial on which no action is ever taken, we must hold that the exceptions on the motion to correct the transcript will be considered as abandoned. Bundrick v. State, 263 Ala. 245, 82 So. 2d 309; Bass v. State, 219 Ala. 282, 122 So. 45.
The record does show that counsel for appellant filed an affidavit on May 8, 1958, which stated:
This is not the proper way to raise objections to oral argument of counsel. There was no motion for a new trial and, consequently, there was no ground of the motion which this court could review. Jackson v. State, 260 Ala. 641, 71 So. 2d 825; Washington v. State, 259 Ala. 104, 65 So. 2d 704. However, since the death penalty was imposed and the alleged remark of the solicitor constitutes appellant's chief complaint in brief, we do state that it is our opinion that the remark was not "so grossly improper and highly prejudicial to the opposing party as that neither retraction or rebuke by the trial court would have destroyed its sinister influence," the exception stated in Anderson v. State, 209 Ala. 36, 95 So. 171, 179, and many subsequent cases. In our recent case of Iverson v. Phillips, Ala., 108 So. 2d 168, 173, we had occasion to consider a similar remark and reached the conclusion that it did "not present a ground for reversal of the judgment of the trial court."
There is no merit in appellant's argument that he was deprived of due process because the entire argument of counsel to the jury was not made a part of the record. Counsel for appellant concedes that he "has failed to find a case on point." There is no such requirement by either case or statutory law in Alabama.
In accordance with our duty in cases of this character, we have examined the record for any reversible error, whether *347 pressed upon our attention or not. We find no reversible error in the record and the judgment is due to be and is affirmed.
Affirmed.
All the Justices concur. | February 12, 1959 |
fe489ee7-1879-4789-a5aa-f40bb5351995 | Rountree v. Richardson | 108 So. 2d 152 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 152 (1959)
James W. ROUNTREE
v.
T. W. RICHARDSON.
1 Div. 669.
Supreme Court of Alabama.
January 8, 1959.
Chas. Hoffman and Caffey, Gallalee & Caffey, Mobile, for appellant.
Chason & Stone, Bay Minette, for appellee.
GOODWYN, Justice.
This is an appeal by the cross-complainant (respondent) from a decree of the circuit court of Baldwin County, in equity, sustaining cross-respondent's (complainant's) demurrer to his cross-bill.
By statutory warranty deed dated November 4, 1938, James W. Gray and others conveyed to one George H. Faulk and T. W. Richardson (original complainant, cross-respondent and appellee) a tract of land containing about three acres abutting the right-of-way of the Cochrane Bridge causeway *153 in Baldwin County. The granting clause provides that the conveyance is
The habendum clause sets out the terms, limitations and conditions, to the extent pertinent to the question before us, as follows:
By statutory warranty deed dated July 24, 1939, George H. Faulk and wife conveyed their interest in the land to T. W. Richardson. The granting clause in that deed, as in the deed from James W. Gray and others, provides that the conveyance is
The habendum clause in said deed from Faulk to Richardson sets out the terms, limitations and conditions, to the extent here pertinent, as follows:
On July 25, 1939, Richardson conveyed an undivided one-half interest in the land to E. J. Roberts. On October 9, 1941, E. J. Roberts and wife reconveyed said undivided one-half interest to Richardson. Both of said deeds were expressly made "subject to the restrictions and conditions contained in the said conveyance from James W. Gray, et al., to George H. Faulk and T. W. Richardson", dated November 4, 1938.
On March 24, 1954, the Gray interests sold and conveyed to James W. Rountree, *154 appellant (respondent and cross-complainant below), "all of their right, title, interest in and claim in and to" the tract of land here involved and also transferred, assigned, set over and conveyed to the said Rountree "all of their rights and option to repurchase reserved" unto them in their conveyance to George H. Faulk and T. W. Richardson under date of November 4, 1938.
On June 12, 1954, the appellee, T. W. Richardson, filed his bill for a declaratory judgment. The primary purpose of the bill was to have the repurchase option in the deed from Gray and others to Faulk and Richardson, above quoted, declared void and of no effect. The trial court, on demurrer, upheld complainant's bill for a declaratory judgment.
Respondent Rountree then filed a cross-bill. As last amended, it alleges essentially the facts as set out above. It also alleges that cross-complainant "has exercised and does hereby exercise the said option to repurchase the said real property described in the bill of complaint on the terms and at the price set forth" therein, and "does hereby make offer so to do and to pay in cash the sum provided therein, to the complainant and cross-respondent", and "is ready, willing and able and is now ready, willing and able so to do and to comply fully with the terms of said instrument * * * in making such payment or payments to complainant and cross-respondent, in such amount as may be determined to be justly and equitably due." The prayer, in substance, is for specific performance of the option to repurchase.
This appeal is from the decree sustaining Richardson's demurrer to the amended cross-bill.
The decisive question presented on this appeal is whether the provision in the deed from Gray and others to Faulk and Richardson whereby the grantors and their assigns are given the option to repurchase is void and of no effect because it violates the common law rule against perpetuities (Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 465(2), 34 So. 2d 835; 41 Am. Jur., Perpetuities, § 4, p. 52; 70 C.J.S. Perpetuities § 3, p. 577), that is, it prescribes an indefinite period which may extend beyond twenty-one years (there being no reference to some life in being) in which the option may be exercised. Code 1940, Tit. 47, § 16, provides that the "common law rule against perpetuities as to land, shall be in full force and effect in this state so that the rule against perpetuities applicable to personal property and to land shall be the same." (Section 16, Tit. 47, is derived from Act No. 684, appvd. July 31, 1931, Gen.Acts 1931, p. 816, which also repealed § 6922, Code 1923. Section 6922 provided that "conveyances to other than the wife and children, or children only, cannot extend beyond three lives in being at the date of the conveyance, and ten years thereafter.")
It seems to us that what was said in the fairly recent case of Dozier v. Troy Drive-In-Theatres, 265 Ala. 93, 104-105, 89 So. 2d 537, 540, is dispositive of the question now before us. In that case Dozier leased a nine-acre tract of land to Carter for 99 years. The lease contained the following provisions, among others not here pertinent, viz.:
Carter assigned the lease to Troy Drive-In-Theatres, Inc., a corporation organized by him. After the lease had been in effect for one year the corporation, through Carter as its president, sought to take up the option and buy the land. Dozier contended that the lessee's (and his assignee's) option to purchase was within the statute of frauds and void because of uncertainty and indefiniteness in the description of the land in the lease agreement and was also void because the lessee's option to purchase was violative of the rule against perpetuities. To resolve the issues the corporation-assignee filed a bill against Dozier for declaratory judgment seeking specific performance of the option to purchase and further seeking a declaration that the option to repurchase reserved to the lessor (Dozier) was itself void because violative of the rule against perpetuities. In speaking to the last question (with which we are here concerned) the court had this to say:
There may be cogent reasons why an option to repurchase reserved to the grantor in a deed should be subject to the rule against perpetuities or some other limitation as to time for enforcement. But, as noted in the Dozier case, a rule of property has been created in this state which should be upheld. Whether there is to be a change in such rule addresses itself to the legislature.
The decree appealed from is reversed and the cause remanded for further proceedings.
Reversed and remanded.
LAWSON, SIMPSON and COLEMAN, JJ., concur. | January 8, 1959 |
29b40bb5-ef43-4657-85a3-17efd81fe6c5 | Barnett v. State | 286 So. 2d 890 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 890 (1973)
In re Clifton Wayne BARNETT
v.
STATE.
Ex parte Clifton Wayne Barnett.
SC 613.
Supreme Court of Alabama.
December 6, 1973.
Charles Tarter, Birmingham, for petitioner.
No brief for the State.
HARWOOD, Justice.
Petition of Clifton Wayne Barnett for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Barnett v. State, 51 Ala.App. 470, 286 So. 2d 876.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | December 6, 1973 |
7182910a-9ff3-4b70-bc61-98bacc0c3862 | Estell v. City of Birmingham | 286 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 872 (1973)
In re Bobby Joe ESTELL
v.
CITY OF BIRMINGHAM.
Ex parte CITY OF BIRMINGHAM, a municipal corporation.
SC 477.
Supreme Court of Alabama.
December 6, 1973.
*873 William C. Walker, Birmingham, for petitioner.
Richard L. Taylor, Birmingham, for appellee.
McCALL, Justice.
The City's application for a writ of certiorari to the Court of Criminal Appeals in this case was granted because a decision of that court initially held invalid an ordinance of the City of Birmingham. Supreme Court Rule 39, Revised Rules of Practice in the Supreme Court, Appendix to Tit. 7, Code of Alabama, Recompiled 1958, Cummulative P.P.
Among other prohibitions, Section 6-45 of the Birmingham, Alabama, General Code, Chap. 6, Art. V (1964), declares it to be unlawful for any person to sell or dispose of a ticket to a theatrical performance, show, exhibition or entertainment of any name or nature at a higher price for admission than that advertised by the proprietor or manager. This section also declares it to be unlawful to sell any such ticket without the prices having first been advertised and posted.
Section 6-48 of the same code is of similar import and declares it to be unlawful to sell or offer for sale a ticket to a theatrical performance, show, exhibition, baseball game, football game or other entertainment at a greater price than advertised or sold by the manager of the event.
Bobby Joe Estell was convicted of violating the ordinance, he being found guilty of selling tickets to a football game to be played in Birmingham, at a greater price than the management had advertised and first sold the tickets.
The sections of the ordinance that are here involved and the stipulation of fact agreed upon by the parties are fully set out in the opinion of the Court of Criminal Appeals in the case of Estell v. City of Birmingham, 51 Ala.App. 462, 286 So. 2d 866 (decided June 29, 1973).
We have carefully considered the opinion, rendered by that court in the case, and are in agreement with the result that the activity engaged in by the defendant, Estell, in reselling football tickets at a greater price than that advertised by the proprietor or manager of the football game was not so affected with a public interest as to be the subject of a price fixing regulation under the police power of the City of Birmingham.
There probably are no fewer people affected by the varieties of public entertainment which could come within the purview of the instant ordinance, than are affected, in the same locality, in a different manner, *874 by milk production which comes under the protection of the State's Milk Control Act. Tit. 22, § 205 et seq., Code of Alabama, Recompiled 1958, as amended. The business of producing and selling milk to the general public, though, is a business held by this court to vitally affect the public interest, which is tantamount to saying, "subject to the exercise of the police power," and to regulation and control, even to the extent of fixing prices. Franklin v. State, 232 Ala. 637, 169 So. 295. The vast difference between the ways in which public entertainment and milk affect the public is not arguable. Each affects the public to a great degree, but in a different manner. As to their relative attributes of importance, it would be difficult, if not impossible, to equate the two, because their qualities of value are so different. In ultimate importance to life, the two have a common ring, the tone of which is the betterment of life. In common parlance, one of these subjects would hardly be given preference over the other in considering what is in the "public interest" and the domain over which each sways. We have yet to find in this state, however, where the business of the resale of tickets for admission to places of public entertainment has been held to involve the "public interest."
Franklin v. State, 232 Ala. 637, 169 So. 295, is not an applicable authority for holding here that the public interest is involved, because there we were dealing with a legislative act fixing prices in the milk industry, which is a business recognized to be affected with a public interest.
In Simonetti, Inc. v. State, 272 Ala. 398, 132 So. 2d 252, the basic holding is that a legislative act (Unfair Cigarette Sales Act, Act. No. 805, Acts of Alabama, 1951) prohibiting the advertising, offering for sale and selling of cigarettes below cost, with intent to injure competitors and destroy, or substantially lessen, competition, is within the legislative province.
Neither in Franklin nor in Simonetti, both supra, was the court concerned with a situation comparable to the aspects of this case. Here we are dealing with a law that tells a person he is prohibited from reselling his admission tickets for a greater sum than the proprietor or the manager of the event sold them for, or, he will be prosecuted and punished.
In City Council of Montgomery v. Kelly, 142 Ala. 552, 558, 38 So. 67, we said:
We have pointed out that where the industry is affected with a "public interest" the legislature has power to regulate, Franklin v. State, supra; and, all public utilities are subject to state regulation. The legislature can also prohibit sales below cost, designed to injure or to destroy the business of a competitor. Simonetti, supra. The governing rule in this jurisdiction, as stated in Bulova Watch Co. v. Zale Jewelry Co., 274 Ala. 270, 271, 147 So. 2d 797, is:
We think it equally clear that the same rule applies in situations where the accused is charged with violating a law which makes it a criminal offense to sell an article or commodity at an excessive price. In State v. Goldstein, 207 Ala. 569, 572, 93 So. 308, this court cites with approval the case of People v. Steele, 231 Ill. 340, 83 N.E. 236, where the court held as unconstitutional an act prohibiting the sale of a ticket by the manager of a theatre without carrying on its face an inhibition against its resale at an advance, and prohibiting such a resale, or keeping a place for carrying on such a business. The court said in Steele, supra, p. 352, 83 N.E. p. 239:
In State v. Goldstein, supra, the act made it an offense for any dealer or any other person to sell or offer for sale any article or commodity of the classes named at a price which, in the estimation of a jury, would yield a grossly excessive profit to the seller. The court said:
In Goldstein, supra, p. 571, 93 So. p. 312, the court further observed:
The court also stated in Bulova Watch Co. v. Zale Jewelry Co., 274 Ala. 270, 272, 147 So. 2d 797, 799 as follows:
The business of barbering is not affected with a public interest, City of Mobile v. Rouse, 233 Ala. 622, 173 So. 266; Lisenba v. Griffin, 242 Ala. 679, 8 So. 2d 175, nor is the business of operating a gasoline filling station, Alabama Independent Service Station Assn. v. McDowell, 242 Ala. 424, 6 So. 2d 502.
The holding and judgment of the Court of Criminal Appeals is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX, FAULKNER, and JONES, JJ., concur. | December 6, 1973 |
5418e3ef-30b4-445e-8d88-ef9b506cd163 | Edwards v. State | 286 So. 2d 313 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 313 (1973)
In re Herbert Mose EDWARDS
v.
STATE.
Ex parte Herbert Mose Edwards.
SC 615.
Supreme Court of Alabama.
November 29, 1973.
David L. Barnett, Mobile, for petitioner.
No brief for the state.
MERRILL, Justice.
Petition of Herbert Mose Edwards for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Edwards v. State, 51 Ala.App. 433, 286 So. 2d 308.
Writ denied.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | November 29, 1973 |
21681538-f2d8-4815-82b5-49a2b39f7c49 | United States Steel Corporation v. Wood | 114 So. 2d 551 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 551 (1959)
UNITED STATES STEEL CORPORATION
v.
Cecil M. WOOD and Department of Industrial Relations.
6 Div. 299.
Supreme Court of Alabama.
February 12, 1959.
Burr, McKamy, Moore & Thomas, Frontis H. Moore, Andrew J. Thomas, Wm. Henry Beatty and Samuel H. Burr, Birmingham, and Hill, Hill, Stovall & Carter and Thos. B. Hill, Jr., Montgomery, for petitioner.
Cooper, Mitch, Black & Crawford, Birmingham, opposed.
GOODWYN, Justice.
This is one of four related cases (the other three being United States Steel Corp. v. Baxley, Ala., 114 So. 2d 554, United States Steel Corp. v. Glasgow, Ala., 114 So. 2d 567, and United States Steel Corp. v. Curry, Ala., 114 So.2d 532) in which we granted certiorari to the Court of Appeals. In granting the writ in these cases, it was specified that it was "for the limited purpose of reviewing that portion of the Court of Appeals' opinion dealing with the question as to whether a member of a local union, not itself on strike, is entitled to unemployment compensation when his unemployment is due to a strike engaged in by another local union, when both locals belong to the same national or international union."
For the facts in detail, reference is made to the opinion of the Court of Appeals. We see no need to repeat them here. It seems to us that the purpose of the review, as stated above, sufficiently poses the question for decision.
The question calls for interpretation of § 214, Subdiv. A, Tit. 26, Code 1940, as amended by Act No. 360, appvd. Sept. 7, 1955, Acts 1955, Vol. II, p. 875, which provides as follows:
*552 In Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So. 2d 165, a majority of the court (in a four to three decision) approved the following language of the Court of Appeals in Department of Industrial Relations v. Drummond, 30 Ala. App. 78, 1 So. 2d 395, 398, certiorari denied 241 Ala. 142, 1 So. 2d 402, to wit:
In Usher the claimant was a member of the Brotherhood of Locomotive Firemen and Enginemen which was not on strike nor engaged in a labor dispute. The striking union in that case was the United Steelworkers union, a member of C.I.O., with which claimant had no affiliation whatever; nor did claimant's union have any affiliation whatever with said striking union. Claimant's unemployment was found to be directly due to the steelworkers' strike.
In the case now before us the claimant was a member of a local union affiliated with the national union of United Steelworkers of America, C.I.O., with which national union the striking local union was also affiliated. For the purposes of this review, there appears to be no dispute that claimant's unemployment was directly due to the strike of said affiliated local.
As we see it, the specific question to be decided is whether the interpretation of the statute (§ 214, Subdiv. A, supra), approved in Usher, is of controlling influence in this case.
It seems to us that Usher is to be distinguished from the instant case. In Usher the claimant had absolutely no affiliation with the striking union, and it was on that basis, and that basis alone, that the statute was interpreted as permitting benefits when the claimant's unemployment is "because of a `labor dispute' in which he was in no way involved and the causes of which unemployment he, his agents or organization were powerless to avert." In the instant case, the claimant's relationship with the striking local is thus stated in the Court of Appeals' opinion on rehearing:
We think the restrictive provisions of Subdiv. A, § 214, Tit. 26, as amended, supra (for a discussion of this statute see Usher, supra, including the minority opinion), denote a clear legislative purpose and intent; and that such purpose and intent should not be extended beyond the holding in Usher. To hold that claimant is entitled to unemployment benefits in this case would be to extend that holding. We find no warrant to do so by judicial interpretation.
Reversed and remanded.
All the Justices concur. | February 12, 1959 |
a7e8fd39-e326-4d4b-9f2e-1acde244704b | Ex Parte Buck | 287 So. 2d 441 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 441 (1973)
Ex parte The Honorable James D. BUCK, as Judge of the Circuit Court of Tuscaloosa County, Alabama.
In re Ex parte Barbara S. McDUFFIE Petition for Writ of Mandamus to the Honorable James D. Buck, as Judge of the Circuit Court of Tuscaloosa County, Alabama.
SC 538.
Supreme Court of Alabama.
December 6, 1973.
*442 Perry Hubbard, McDuffie & Holcombe, Tuscaloosa, for petitioner.
Zeanah, Donald, Lee & Williams and Wilbor J. Hust, Jr., Tuscaloosa, for respondent.
JONES, Justice.
Does a divorce-child custody action pending in one state abate a like suit in another state?[1] We answer in the negative and reverse and remand this cause to the Court of Civil Appeals. We agree with the trial court in overruling the respondent-wife's motion to dismiss (Plea in Abatement).
The Court of Civil Appeals in issuing the writ of mandamus stated:
The opinion of the Court of Civil Appeals then concluded:
We disagree that the Burch and Clements "concurrent jurisdiction-abatement" doctrine is determinative of this case. Nor is the "full faith and credit" [2] principle of Stallworth here applicable.
In Ex parte Burch, supra, this Court was confronted with a conflict between the Circuit Court of Walker County, Alabama, and the County Court of Walker County. The prior pendency of the wife's divorce suit in the Circuit Court was considered sufficient basis to prohibit the County Court of Walker County from proceeding with the trial of a subsequent suit for divorce filed in that court by the husband. The conflict in that case was intrastate. Likewise, in the case of Clements v. Barber, supra, the Court of Civil Appeals was confronted with an intrastate conflict. The prior pendency of an action to fix custody of a minor in the Family Court of Jefferson County was considered sufficient to prohibit the Circuit Court of Jefferson County, Alabama, from acting upon an action to determine the custody of such child.
This Court has long been committed to the proposition that the pendency of a suit upon the same cause of action in another state is no cause of abatement of a suit instituted in this state. In Humphries v. Dawson, 38 Ala. 199, this Court stated:
This holding is in accord with the weight of authority and is equally applicable to actions for divorce. See 24 Am. Jur.2d, Divorce and Separation, § 188; 27A C.J.S. Divorce § 99; Cox v. Cox, 234 Miss. 885, 108 So. 2d 422.
The opinion of the Court of Civil Appeals takes note of the fact that the question of jurisdiction of that court was argued and resolved in California on July 27, 1973. The California Court determined that it did have jurisdiction of the cause and such determination was made after the husband (respondent there) had filed a Motion to Dismiss based on lack of jurisdiction and had personally appeared before that court to so argue. The Court of Civil Appeals then concludes that the California determination as to jurisdiction is res judicata and entitled to Full Faith and Credit by the Alabama Court, citing our case of Ex parte Aufill, supra, and Stallworth v. Stallworth, supra. This conclusion does not militate against the result which we reach here. The fact that the California court has jurisdiction does not preclude an Alabama court from also having jurisdiction where one of the parties to the marriage is domiciled within this state and the children are physically present here.
We should perhaps note that in both Ex parte Aufill, supra, and in Stallworth v. Stallworth, supra, this Court concluded that Alabama was precluded from exercising jurisdiction. Such determination was not made upon the ground that some other state had jurisdiction of an action for divorce between the same parties, but rather *444 upon the ground that the court of a sister state having jurisdiction of the action had exercised that jurisdiction by entering a binding judgment or decree.
Where there is no dispute about the facts, we may examine the record for a more complete understanding and amplification of those features of the record which have been treated in the opinion of the Court of Civil Appeals. Johnson v. State, 277 Ala. 655, 173 So. 2d 824; Helms v. State, 270 Ala. 603, 121 So. 2d 106; Southern Railway Company v. Terry, 268 Ala. 510, 109 So. 2d 919; Vardaman v. Benefit Association of Railway Employees, 263 Ala. 236, 82 So. 2d 272; Cranford v. National Surety Corporation, 231 Ala. 636, 166 So. 721; Hood v. State, 230 Ala. 343, 162 So. 543.
Pursuant to this authority, we have examined the certified copy of the mentioned California decree of July 27, 1973. Although the hearing precipitating this decree appears to have been held on July 27, 1973, the decree does not appear to have been signed until August 6, 1973, and does not appear to have been filed with the Clerk of the California Court until August 8, 1973. This decree finds that the wife, Barbara McDuffie, is domiciled in California, but further finds that the husband is domiciled in Alabama. The court finds jurisdiction of the action by the California court by virtue of the wife's domicile and residency in the state.
The Circuit Court of Tuscaloosa County also finds that the husband was a bona fide resident and citizen of Tuscaloosa County, Alabama, and was domiciled in Alabama, having been born there and never having abandoned such domicile of origin. From the opinion of the Court of Civil Appeals, it is evident that the children were physically present with their father within the State of Alabama at the time the Circuit Court of Tuscaloosa County awarded the temporary custody to their grandparents. It further appears from this opinion that the husband violated no order of the California court in bringing the children to Alabama, since no order, temporary or otherwise, had been entered by the California court prior to June 13, 1973, with regard to custody or any other aspect of the case.
In the case of Billingsley v. Billingsley, 285 Ala. 239, 231 So. 2d 111, Mr. Justice Harwood, speaking for the Court, states:
In the case of Cox v. Cox, supra, the Supreme Court of Mississippi held that the Chancery Court of Bolivar County, Mississippi, had the right to determine the custody of the child of the marriage despite a prior pending Pennsylvania divorce action where the husband's domicile was Mississippi and the child was physically present there. In so holding, the Supreme Court of Mississippi stated:
Professor Leflar sums up the "prior pendency" rule: "The mere pendency of an action in one state has no effect upon the right to bring an action in another. Whichever suit is first carried to judgment then bars the other, but it is only the rendition of judgment which has that effect." Leflar, American Conflicts Law (Student Edition), § 73, p. 169.
We conclude that the Circuit Court of Tuscaloosa County has jurisdiction of the suit; that the pendency of the California action does not constitute grounds for the abatement of the Alabama suit; that the Circuit Court of Tuscaloosa County did not abuse its discretion in entertaining jurisdiction and proceeding to grant an order awarding temporary custody; and did not err in overruling the wife's motion to dismiss.
Another reason why the Alabama court had jurisdiction is that the equity courts in this state are always open for the protection of minors, Harris v. Harris, 251 Ala. 687, 39 So. 2d 232; and any pleading which shows on its face that the welfare of an infant requires an order with respect to its custody or support is sufficient to invoke this jurisdiction. Tcherneshoff v. Tcherneshoff, 283 Ala. 700, 220 So. 2d 888; Scott v. Scott, 247 Ala. 598, 25 So. 2d 673. See Lynn v. Wright, 252 Ala. 606, 42 So. 2d 490. Here the allegations of the petition to the Circuit Court of Tuscaloosa County show that the minor children are present in Tuscaloosa County; that the whereabouts of their mother is unknown; that the father's domicile is Tuscaloosa County; that he is currently stationed in California as a member of the armed forces of the United States; and that the grandparents are resident citizens of Tuscaloosa County.
The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court.
Reversed and remanded with instructions to enter an order consonant with this opinion.
HEFLIN, C.J., and MERRILL, COLEMAN, HARWOOD, BLOODWORTH, McCALL, and FAULKNER, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I agree with most of what the majority has said and concur in the result reached, but wish to point out some areas of the majority opinion with which I disagree.
As I view the facts as set out in the opinion of the Court of Civil Appeals, the California action was begun first. Custody of the children was part of the relief requested in that action. The California court had jurisdiction. The majority does not question the fact that the California court had jurisdiction, but holds that the prior pendency of the California suit does not bar the prosecution of the Alabama action. I agree with this. Consequently, I disagree with the Court of Civil Appeals that the Alabama action should have been dismissed. However, that does not mean that the Alabama action should not have been stayed. The Court of Civil Appeals found, as a fact, that there was no emergency involved which would have quickened the right of the Alabama court to proceed. The Court of Civil Appeals found:
Based upon this finding of "no emergency," I believe the Court of Civil Appeals could have ordered the Tuscaloosa court to stay its proceedings until the California court could proceed to a judgment on the custody issue. Alabama cases seem to support my view that when proceedings involving child custody are pending both in Alabama and a foreign jurisdiction, the principle of comity should be applied. Moss v. Ingram, 246 Ala. 214, 20 So. 2d 202 (1944); Little v. Little, 249 Ala. 144, 30 So. 2d 386 (1947); State v. Black, 239 Ala. 644, 196 So. 713 (1940).
In Moss v. Ingram, this Court said, quoting from a Michigan case [Maclean v. Speed, 52 Mich. 257, 18 N.W. 396]:
The Court of Civil Appeals has reviewed the record in this case and determined that there was no emergency involved. If that finding is correct, I believe the spirit of our child custody cases is to the effect that even though Alabama courts have jurisdiction, they should refuse to exercise it, except in cases where an emergency exists, because "when a court of competent jurisdiction has become possessed of a case its authority continues and no court of co-ordinate authority, is at liberty to interfere with its action." Moss v. Ingram.
I fully recognize that in the cases I cite there was an order granting custody. Here, the California court had not entered a decree awarding custody, but I do not believe the principle laid down in Moss v. Ingram is limited to cases where a custody decree is awarded. The rule of comity set down in Moss v. Ingram reads simply, "when a court of competent jurisdiction has become possessed of a case." It does not say that a'decree must be rendered.
*447 Consequently, I would reverse and remand the cause to the Court of Civil Appeals with instructions to review the cause in the light of the rule of comity which I believe is appropriate.
[1] For a detailed recital of the factual background giving rise to this issue, see Ex parte McDuffie [Ms.] Court of Civil Appeals, 1973, 51 Ala.App. 548, 287 So. 2d 438.
[2] Article 4, Section 1, Constitution of the United States. | December 6, 1973 |
41950d0c-0fcf-415f-a57d-17998ccd73f1 | Powell v. State | 286 So. 2d 75 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 75 (1973)
In re Tony Curtis POWELL
v.
STATE.
Ex parte Tony Curtis Powell.
SC 602.
Supreme Court of Alabama.
November 21, 1973.
Elno A. Smith, Jr., Montgomery, for petitioner.
No brief for the State.
*76 HARWOOD, Justice.
Petition of Tony Curtis Powell for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Powell v. State, 51 Ala.App. 398, 286 So. 2d 73.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | November 21, 1973 |
fdb1c223-c929-4f34-aed0-45941db5e9bd | Kennesaw Life & Acc. Ins. Co. v. OLD NATIONAL INS. CO. | 287 So. 2d 869 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 869 (1973)
KENNESAW LIFE & ACCIDENT INSURANCE CO., a corporation,
v.
OLD NATIONAL INSURANCE COMPANY and John G. Bookout, as Receiver of Old National Insurance Company, in Receivership.
SC 279.
Supreme Court of Alabama.
December 20, 1973.
Rehearing Denied January 24, 1974.
*870 E. A. Screws, Jr., Montgomery, John A. Taber, Greenville, for appellant.
James W. Webb, Edwin K. Livingston, Montgomery, for appellees.
BLOODWORTH, Justice.
Appellant, Kennesaw Life & Accident Insurance Company, appeals from a denial of its petition for intervention in the cause entitled State of Alabama, ex rel. John G. Bookout, Superintendent of Insurance v. Old National Insurance Company, a receivership proceeding commenced in the Jefferson County Circuit Court, Bessemer Division, In Equity.
Old National Insurance Company is an Alabama corporation that primarily handles paid-up life insurance policies which are "ceded" to it by other companies along with a transfer of assets sufficient to cover the statutory reserve requirements on the ceded policies. In 1967, Kennesaw ceded paid-up policies to Old National and transferred $1.5 million in assets to it to cover the statutory reserve requirements on those policies. Apparently, on account of mismanagement, Old National's assets were substantially depleted and the company placed in receivership "for rehabilitation" on March 28, 1970. Separate suits by its creditors were enjoined.
Kennesaw was advised by its counsel that it continued to remain legally liable to its policyholders, notwithstanding Old National's assumption of liability on the policies. Thus, in August, 1970, at the request of the receiver, Kennesaw reassumed primary liability on the policies (which it had ceded to Old National) without any accompanying retransfer of assets by Old National. In the reinsurance agreement, Kennesaw specifically reserved any and all causes of action it might have against Old National.
On February 3, 1971, the court ordered notice to be given to all prospective creditors of Old National to file their claims. Kennesaw received such notice. However, Kennesaw did not file. Instead, on June 15, 1971, Kennesaw filed a declaratory judgment action in the Jefferson County Circuit Court, Bessemer Division. It asked, inter alia, that it be declared a creditor of Old National based upon the breach of the 1967 reinsurance agreement between Kennesaw and Old National or based upon its alleged status as subrogee of the policyholders whose policies had been first ceded by Kennesaw to Old National and then reinsured by Kennesaw. This cause has never come on for trial.
In September, 1971, Kennesaw filed a second suit in the same court to enjoin the receiver of Old National from any transfer, sale or release of any and all assets, rights, claims or choses in action until after a final determination of Kennesaw's status as creditor of Old National. The record is unclear as to the final disposition, if any, of this suit.
Briefs point out that one of the "assets" of Old National is a possible cause of action for fraud against several officers and directors of Coastal States Life Insurance Company, based upon their responsibility for the insolvency of Old National. The statute of limitations on this cause of action was, by agreement, extended through October 1, 1972.
In September, 1972, the receiver presented to the court for approval a proposed settlement agreement, whereby Old National would release all claims against Coastal States in exchange for the latter's agreement to reinsure policies having a reserve liability of $1.4 million. It was then that Kennesaw petitioned to intervene in this cause. The petition was denied, the court giving no reason for its decision. Subsequently, the proposed settlement was approved.
This appeal from the denial of Kennesaw's petition to intervene then followed. Kennesaw contends that it is a general creditor by virtue of the breach of the *871 reinsurance contract of 1967; that policyholders are nothing more than general creditors; that the proposed settlement agreement will prefer the policyholders of Old National to the detriment of general creditors such as Kennesaw; and that therefore the denial of the petition for intervention is reversible error.
The first issue presented to us on this appeal is a motion by appellee, Old National Insurance Company, to dismiss the appeal, or, in the alternative to strike appellant's response and reply brief, or to grant appellees leave to file a response to appellant's reply brief. In support of these motions, appellee contends (1) that appellant Kennesaw has conceded in its reply brief that the Coastal States agreement does not work a preference, and (2) that appellant Kennesaw's reply brief attempts to raise new issues for the first time.
We do not understand appellant Kennesaw's reply brief to concede that the Coastal States agreement does not work a preference. And, while new issues cannot be raised for the first time in a reply brief, raising of such issues is not a ground for dismissal of the appeal or striking of the entire brief in which such issues appear. This Court will simply treat such issues as not before the Court. Lunney v. Southern Railway Company, 272 Ala. 611, 133 So. 2d 247 (1961). The motion is denied.
On the merits, one issue appears to be dispositive of this appealKennesaw's failure to file a claim with the receiver. We therefore pretermit consideration of the other issues argued by the parties.
Kennesaw contends it is a creditor of Old National either as the party injured by Old National's breach of the 1967 reinsurance agreement, or as subrogee of the policyholders whose policies had been ceded to Old National in 1967 and then reassumed by Kennesaw.
The receiver of Old National contends, on the other hand, that whatever claim Kennesaw may have had in the past is barred by its failure to file a claim with the receiver. We agree with this latter contention and accordingly affirm.
Kennesaw says that because the receiver did not raise the failure to file a claim as an affirmative defense this Court is precluded from considering the issue. This argument must fail. While parties opposing intervention may file their objections to the petition for intervention with the court, it is incumbent upon the party seeking intervention to affirmatively show the requisite interest in the pending litigation and facts establishing its right to relief. City of Birmingham v. Trammell, 267 Ala. 245, 101 So. 2d 259 (1958); Pentecostal Holiness Church of Montgomery v. Dunn, 248 Ala. 314, 27 So. 2d 561 (1946); Franklin v. Dorsey-Jackson Chevrolet Co., 246 Ala. 245, 20 So. 2d 220 (1944); Cortner v. Galyon, 223 Ala. 405, 137 So. 30 (1931).
From the rule of the foregoing cases, we must conclude that Kennesaw was required to show its interest in the pending litigation. If, in fact, all Kennesaw's claims against Old National had been barred, Kennesaw had no interest in the subject litigation and was not entitled to intervene.
We next move to a consideration of Kennesaw's alleged creditor status growing out of the breach of the 1967 contract. Kennesaw admits that it received the first notice to creditors and policyholders of Old National (ordered by the trial court on February 3, 1971) directing that:
Kennesaw further admits that it did not file a claim within the specified time.
It seems beyond dispute that any claim Kennesaw might have had against Old National for breach of contract comes within the broad language of the foregoing February 3, 1971 notice to creditors. Additionally, it appears that the trial court sitting in equity was authorized by the provisions of Title 28, § 58, Code of Alabama 1940 (in force in 1971) to bar all claims not filed, viz:
Moreover, the requirement of seasonably filing claims with an appointed receiver has long been recognized by this Court. Farish v. Hawk, 241 Ala. 352, 2 So. 2d 407 (1941); Oates v. Smith, 176 Ala. 39, 57 So. 438 (1912). See also 44 C.J.S. Insurance § 134, p. 741:
We thus conclude that the court was well within its power to require claims to be filed by a specified date upon penalty of being barred, and that any claim Kennesaw might have had based upon the breach of contract was barred on May 30, 1971, by its failure to file a claim with the receiver.
Kennesaw's alleged creditor status, based upon its right as subrogee of the policyholders whose contracts were reassumed by Kennesaw, presents slightly different issues. The deadline for claims of policyholders only was extended to December 31, 1971, by a court order issued April 23, 1971. Again, Kennesaw admits that it did not file a formal claim with the receiver within the extended claim filing period. Kennesaw did, however, file a declaratory judgment action in the Circuit Court of Jefferson County, Bessemer Division, In Equity, in June of 1971 (within the extended claim period) seeking to establish its creditor status as subrogee of certain policyholders. Kennesaw contends that the filing of the declaratory judgment action met the requirements of filing a claim with the receiver. We cannot agree.
Section 58 of Title 28, supra, clearly gives the equity court in insurance receiverships broad powers to prescribe such rules as it deems necessary for the orderly settlement of the subject insurance company's affairs. Pursuant to this statutory authority, the court ordered notice to creditors that claims must be filed within a specified date on the printed forms available from the receiver. The court made it abundantly clear that any claims "filed on other forms will be considered invalid by the Court." (Emphasis added). Kennesaw admits receiving this notice, and admits not filing under the procedures established by the court. We do not believe that by merely filing the declaratory judgment action Kennesaw has complied with the procedures properly established by the court for the reasonable and orderly disposition of creditors' claims. Any claim Kennesaw might have had against Old National as subrogee of policyholders was barred by its failure to file a claim within the extended claim period.
Accordingly, Kennesaw was not entitled to intervene not having filed a claim. The decree of the trial court is due to be affirmed.
Motion denied.
Affirmed.
COLEMAN, HARWOOD, McCALL and FAULKNER, JJ., concur. | December 20, 1973 |
e1ece1c2-f674-4c06-a916-881cd0f198c1 | Southern Railway Company v. Terry | 109 So. 2d 919 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 919 (1959)
SOUTHERN RAILWAY COMPANY
v.
Roy TERRY.
8 Div. 957.
Supreme Court of Alabama.
February 12, 1959.
Mitchell & Poellnitz, Florence, for petitioner.
Thos. C. Pettus, Moulton, opposed.
MERRILL, Justice.
Plaintiff sued to recover damages sustained when his tractor was struck by defendant's train at a crossing. The complaint contained two counts, 1 charging negligence in failing to ring the bell and sound the horn for the crossing, 2 charging negligence in the operation of the train. Judgment was for the plaintiff and defendant appealed.
The Court of Appeals held that the defendant was entitled to the affirmative charge as to Count 1 because of plaintiff's contributory negligence. We are not concerned with that part of the holding.
It was also held that plaintiff was entitled to recover under Count 2 on the theory of subsequent negligence.
Defendant argued in the Court of Appeals and here that the question of subsequent negligence is not involved in this review because the case was tried on the theory of initial negligence of defendant and contributory negligence of plaintiff, and was submitted to the jury only on this theory. The Court of Appeals disagreed and quoted from the record as follows:
The record further shows that in his oral charge, the court instructed the jury:
The Court of Appeals then stated:
With this we cannot agree.
The first three quoted statements show on their face to have been made in the settlement of the pleadings. The statements merely show that defendant intends to rely on subsequent contributory negligence if plaintiff relies on subsequent negligence. The record affirmatively shows that this colloquy took place before the jury was qualified. Certainly, it takes more than this to support a finding that the case was actually tried on the theory of subsequent negligence.
The other extracts from the opinion of the Court of Appeals are from the oral charge of the court. The first is a correct statement and could cover simple negligence or subsequent negligence, but the statement alone cannot be held to be a charge on the issue of subsequent negligence.
The second extract from the charge contains a definition of simple negligence. The first sentence"There is another kind of negligence"indicates that the court had just finished speaking of some other type of negligence. We have gone to the record to see if that statement could possibly have been reference to subsequent negligence. Where there is no dispute about the facts (here, the only issue is the content of the court's oral charge), we examine the record on certiorari for a more complete understanding of those features of it which are treated. Cranford v. National Surety Corp., 231 Ala. 636, 166 So. 721; Brown v. State, 249 Ala. 5, 31 So. 2d 681; Vardaman v. Benefit Ass'n of Ry. Employees, 263 Ala. 236, 82 So. 2d 272; Hamm v. State, 264 Ala. 366, 87 So. 2d 865. But, the other kind of negligence about which the court had charged was that which arises from a violation of the law, i. e., the failure to sound the proper signals.
There just was no reference in the oral charge to subsequent negligence. The jury is bound by the theory of the law as charged by the judge, and they have no right to depart from it, even though the theory may be erroneous. New Hampshire Fire Ins. Co. v. Curtis, 264 Ala. 137, 85 So. 2d 441; or as stated in City of Anniston v. Oliver, 28 Ala.App. 390, 185 So. 187, 190, "It is the duty of the court to declare the law, and it is the duty of the jury to follow the law as given them in charge by the court."
The case of Seaboard Air Line Ry. Co. v. Lowe, 223 Ala. 542, 137 So. 448, 449, is exactly in point. There the court, in reversing the judgment for appellee, stated:
There being no instructions or requested instructions to the jury as to subsequent negligence, we hold that the verdict and judgment cannot be upheld on that theory.
We are not to be understood as holding that the facts as stated by the Court of Appeals would not bring the instant case within the cited cases of Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449, and Southern Ry. Co. v. Hughes, 267 Ala. 418, 103 So. 2d 324, if the cause had been tried and submitted to the jury on the theory of subsequent negligence. The original records of each of those cases show that the question of subsequent negligence was fully and comprehensively covered in the oral charge of the trial court.
In view of the foregoing, it is unnecessary for us to discuss petitioner's argument that since the Court of Appeals held that it was entitled to the requested affirmative charge as to Count 1, it was reversible error to receive a general verdict as to both counts because the verdict could very possibly have been based upon Count 1.
The judgment of the Court of Appeals is reversed and the cause is remanded.
Reversed and remanded.
All the Justices concur. | February 12, 1959 |
5d1e5b51-f921-4746-93d9-8d12c0316d2e | Washington v. State | 112 So. 2d 179 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 179 (1959)
Caliph WASHINGTON
v.
STATE of Alabama.
6 Div. 227.
Supreme Court of Alabama.
February 12, 1959.
Rehearing Denied May 14, 1959.
*184 David H. Hood, Jr., Bessemer, and Orzell Billingsley, Jr., K. C. Edwards, Birmingham, for appellant.
John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Caliph Washington was tried for first degree murder in the Circuit Court of Jefferson County, Bessemer Division. He was convicted and sentenced to death. The case comes here under the automatic appeal statute. Act No. 249, Acts 1943, p. 217, approved June 24, 1943. See 1955 Cum. Pocket Part, Vol. 4, Code 1940, Title 15, § 382(1) et seq.
Appellant filed motions to quash the indictment and trial venire on the ground that his rights under the Fourteenth Amendment to the Constitution of the United States were violated in that persons of his race, the Negro race, duly qualified under the applicable state law to serve as members of the grand jury and of the petit jury, were systematically and intentionally excluded from the jury roll and the jury box from which the grand and petit juries were drawn.
In a long line of cases going back many years, the Supreme Court of the United States has held that a criminal defendant is denied the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race. Eubanks v. State of Louisiana, 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991, and cases cited. Decisions of this court are to the same effect. Norris v. State, 229 Ala. 226, 156 So. 556; Millhouse v. State, 232 Ala. 567, 168 So. 665; Vaughn v. State, 235 Ala. 80, 177 So. 553; Vernon v. State, 245 Ala. 633, 18 So. 2d 388. See Fikes v. State, 263 Ala. 89, 81 So. 2d 303; Reeves v. State, 264 Ala. 476, 88 So. 2d 561.
It seems to be settled that a motion to quash is the proper way to challenge an indictment and a trial venire on the ground of intentional racial discrimination. Vernon v. State, supra; Millhouse v. State, supra; Vaughn v. State, supra.
Sections 278 and 285, Title 15, and § 46, Title 30, Code 1940, have been held to be procedural statutes, designed to prevent quashing of indictments or venires for mere irregularities and to obviate the resulting delays in the administration of justice. Those statutes do not deny to one charged with a crime the right to present for a determination the question of whether the rights guaranteed by the Fourteenth Amendment to the Constitution of the United States have been violated. Vernon v. State, supra.
The State did not interpose any kind of pleading to the motions to quash, offer any evidence or raise any question as to the timeliness of the motions. The hearing on the motions proceeded as if they were timely filed and as if the State had taken issue thereon.
*185 It has been said that the burden of proof is upon the defendant to establish the racial discrimination alleged in such motions. Akins v. State of Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692; Norris v. State of Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074; Tarrance v. State of Florida, 188 U.S. 519, 23 S. Ct. 402, 47 L. Ed. 572.
The Jury Board of Jefferson County is composed of three members whose duties are defined by the local act creating the Board. Act No. 333, Acts of Alabama, Regular Session 1953, Vol. 1, p. 387. Sections 11-18, inclusive, of that act will be set out in the report of the case.
No objection was interposed to the validity of any of the provisions of the 1953 local act, supra. See Franklin v. State of South Carolina, 218 U.S. 161, 30 S. Ct. 640, 54 L. Ed. 980.
It appears from the testimony of a member of the Jury Board who was placed on the stand by the defendant that the Jury Board on the last Tuesday of August, 1957, made a separate roll and refilled a separate jury box for the territorial division of Jefferson County commonly referred to as the Bessemer Cutoff, over which the Bessemer Division of the Circuit Court of Jefferson County has jurisdiction. Section 18, Local Act, supra. Approximately seven thousand cards bearing the names of jurors living within the Bessemer Cutoff were placed in the box. According to this witness, those names were selected in accordance with the provisions of the said local act, supra, and the names of colored jurors as well as white were placed in the box.
The grand jury which indicted this defendant had a Negro on it. The grand jury, composed of eighteen persons, was drawn by lot from a list of thirty-two persons who responded to subpoenas for grand jury duty from a list of fifty-two names duly drawn from the August, 1957, jury box by the trial judge. Four Negroes were among the thirty-two persons who appeared. There is no evidence as to the race of the twenty persons whose names were drawn but who did not appear.
In view of the evidence concerning the presence of Negroes on the jury list from which the grand jury was drawn and the presence of the Negro on the grand jury, we are of the opinion that the trial court did not err in overruling the motion to quash the indictment even if it be conceded that the defendant established the fact that few, if any, Negroes had served on juries in the Bessemer Cutoff drawn from prior jury boxes, and even though it be conceded that the evidence shows the male Negro population over twenty-one years of age within the said political subdivision to be equal to or in excess of the white male population of that age group. However, the evidence as it relates to the population ratio is far from clear.
The question before the trial court was whether the defendant made a prima facie showing of discrimination in the filling of the August, 1957, jury box. Cassell v. State of Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839; Avery v. State of Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244; Fikes v. State, 263 Ala. 89, 81 So. 2d 303, reversed by the Supreme Court of the United States on another ground. See Fikes v. State of Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246. There was no charge of any fraud or irregular practice in the method of drawing the cards from the jury box or in the making up of the jury list. There was no evidence offered to that effect. The fact, if it be a fact, that Negroes were excluded from prior jury rolls and boxes because of their race can only serve to shed light on the conduct of the members of the Jury Board in making up the jury box of August, 1957. But that fact, in our opinion, was not sufficient to make out a prima facie showing that Negroes had been systematically excluded from the jury box here involved from which the names of Negroes were drawn to serve on the grand jury which indicted *186 the defendant. In our opinion, the facts in this case are clearly distinguishable from the facts held to constitute a prima facie showing of discrimination in the following cases. Neal v. State of Delaware, 103 U.S. 370, 26 L. Ed. 567; Norris v. State of Alabama, supra; Hale v. Commonwealth of Kentucky, 303 U.S. 613, 58 S. Ct. 753, 82 L. Ed. 1050; Pierre v. State of Louisiana, 306 U.S. 354, 59 S. Ct. 536, 83 L. Ed. 757; Hill v. State of Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559; Patton v. State of Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76, 1 A.L.R.2d 1286; Hernandez v. State of Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866; Reece v. State of Georgia, 350 U.S. 85, 76 S. Ct. 167, 100 L. Ed. 77. As we understand the evidence in this case, there was no "vacuum" which the State was called upon to fill by moving in with sufficient evidence to dispel a prima facie case of discrimination. Avery v. State of Georgia, supra.
We realize full well that we are dealing with a federal question and that on review by the Supreme Court of the United States that court can make an independent examination of the evidence to determine whether a federal right was denied the defendant. Our conclusion here has been reached only after a careful and studied consideration of the decisions of the Supreme Court of the United States on the question, and while we are of the opinion that the conclusion which we have reached is correct, we feel that the better practice would have been for the State to have presented evidence as was done in the case of Fikes v. State, 263 Ala. 89, 81 So. 2d 303.
We hold that reversible error is not made to appear in connection with the action of the trial court in overruling the motion to quash the indictment.
No evidence was adduced in the hearing on the motions to quash concerning the composition of the petit jury or the list from which that jury was selected. For aught appearing there were many more Negroes on that jury than were drawn for possible grand jury duty. The defendant introduced no evidence tending to show the number of whites in the jury box or on the jury roll as compared to the number of Negroes. But in any event, we see no occasion to pass on the motion to quash the venire inasmuch as the case must be reversed for a reason hereafter stated and the defendant will be subject to trial before a different petit jury.
We think it advisable to observe that since the burden is upon the defendant to prove his allegations concerning discrimination, he must be given an opportunity to produce relevant, legal evidence, if he can, which tends to prove racial discrimination. Millhouse v. State, 232 Ala. 567, 168 So. 665; State v. Perry, 248 N.C. 334, 103 S.E.2d 404.
In the early hours of the morning of Friday, July 12, 1957, James B. Clark, a police officer of the City of Lipscomb, while driving a police car gave chase to an automobile which finally came to a stop in Exeter Alley in the City of Bessemer. The automobile was driven by the defendant, Caliph Washington, a seventeen-year-old Negro boy. The police car was stopped immediately behind the automobile driven by the defendant. Shortly after the two motor vehicles came to a stop the police officer, Clark, received a fatal wound from a bullet fired from his own pistol.
On Sunday afternoon, July 14, 1957, the defendant was arrested by a Mississippi officer at Byhalia, Mississippi. He had the deceased's pistol in his possession. The defendant was later turned over to Lawton Grimes, Sr., a police officer of the City of Bessemer, who returned the defendant to Bessemer. Grimes testified on behalf of the State. According to Grimes, the defendant voluntarily confessed that he shot Clark with the latter's pistol while he, Washington, "was trying to get away from the police." In that oral confession, as related by Grimes, the defendant gave the following version of the shooting: "Whenever he [Clark] jammed me up in the alley *187 there, had my car blocked off in the alley, in Exeter Alley, that I, when I started to get out of the car, he met me and he got me in the belt and walked around to the right hand side of the police car and when he reached down to unlock the car with the other, I just whirled in under him and grabbed his pistol and then stepped back and shot him two or three times." (Emphasis supplied.)
There were several colored witnesses who testified in behalf of the State. Their testimony is to the effect that Washington was present at the time the shooting occurred, but none of them actually saw the shooting.
The State called a Negro soldier who was on the bus with defendant on the day of his arrest in Mississippi who testified to the effect that the defendant told him that he had killed a policeman in Alabama. Elijah Honeycutt, a Negro man, testified to the same effect.
The defendant testified in his own behalf. He gave an account of his whereabouts on the night of July 11 and the early hours of the morning of July 12, 1957. He stated that shortly before the shooting he was on his way to the place where he was to spend the night. He was driving his father's automobile within the City of Lipscomb at a speed of from twenty-five to thirty miles an hour when he was pursued by an automobile which was not sounding a siren or flashing any light, and from which two shots were fired in his direction. Thereafter he speeded up his automobile and the pursuit continued. He described the route which he and the driver of the pursuing automobile took prior to the stopping of the two motor vehicles in Exeter Alley. According to the defendant, when the light on the top of the police car began to flash he stopped his automobile in the alley. The deceased ordered the defendant out of the automobile and told him to "put your hands up." The defendant says he complied with that command. The deceased made inquiry concerning the defendant's possession of whisky. The defendant replied that he did not have any whisky in his possession, was not transporting whisky, but was merely on his way home. Thereupon the police officer started to strike the defendant with his pistol. The defendant caught the deceased's hands and a tussle ensued, during which the deceased's pistol was fired two or three times. The defendant says he never did get control of the pistol during the struggle or get his finger on the trigger. After the third shot was fired the police officer fell and the defendant ran, carrying the deceased's pistol with him after picking up several cartridges which had fallen on the ground.
Reversible error is not made to appear in the ruling of the trial court permitting a pathologist whose qualifications were established to testify as to his findings concerning the condition of the body of a man identified to him as that of the deceased, where the evidence later adduced showed without controversy that the body was that of the deceased.
The pathologist described the injuries he found on the body. The stomach had two holes in it which appeared to have been caused by the same object which penetrated the skin. The pancreas was cut in two and the main blood vessel from the heart, the aorta, was punctured. Only one bullet was found in the body of the deceased and it was removed from the spinal column. It was not error for the trial court to permit the witness to testify that the gunshot wounds which he described caused the death of James B. Clark. Lambert v. State, 234 Ala. 155, 174 So. 298; King v. State, 266 Ala. 232, 95 So. 2d 816.
The pathologist described the path of the bullet after it entered the body but did not attempt to draw conclusions as to the relative positions of the parties when the shot was fired. See Crawford v. State, 262 Ala. 191, 78 So. 2d 291.
Photographs of the dead body of James B. Clark were admitted without error. *188 Maund v. State, 254 Ala. 452, 48 So. 2d 553; Smarr v. State, 260 Ala. 30, 68 So. 2d 6; Chappelle v. State, 267 Ala. 37, 99 So. 2d 431.
The shirt worn by deceased, showing a bullet hole but no powder burns or smudges, was properly admitted in evidence as corroborative of the State's evidence. Morris v. State, Ala., 104 So. 2d 810, and cases cited.
The bullet taken from the body of the deceased was properly identified and accounted for and was admitted without error. Payne v. State, 261 Ala. 397, 74 So. 2d 630; Grissett v. State, 241 Ala. 343, 2 So. 2d 399; Vernon v. State, 239 Ala. 593, 196 So. 96; Moss v. State, 152 Ala. 30, 44 So. 598; Crawford v. State, 112 Ala. 1, 21 So. 214. The admission of the bullet, when considered with the evidence of Dr. C. J. Rehling, the State Toxicologist, was advantageous to the defendant. The bullet contained a flattened surface which Dr. Rehling stated in his opinion could not have been caused by contact with the flesh or bone of the deceased, and there was evidence to the effect that there was a dent in the police car after the pistol was fired which was not present before the shooting. In other words, this evidence was in some measure supportive of the theory of the defendant that he did not step back from the deceased and deliberately fire the pistol at him, but that the pistol was accidentally discharged during the tussle which ensued after the deceased raised his arm to strike the defendant.
It was not reversible error to admit expert evidence to the effect that the bullet was fired from the pistol which deceased had with him at the time of the shooting. Grissett v. State, supra; Collins v. State, 250 Ala. 58, 33 So. 2d 18.
The pistol which was properly identified was also admitted in evidence without error. Higginbotham v. State, 262 Ala. 236, 78 So. 2d 637; Payne v. State, 261 Ala. 397, 74 So. 2d 630.
It was not reversible error to admit in evidence the bag in which the defendant was carrying the pistol at the time of his arrest.
No error resulted from the court's ruling in permitting Dr. Rehling, the State Toxicologist, an expert in ballistics, to express the opinion that the pistol was fired from a point more than twelve inches from the shirt worn by deceased, which was punctured by the bullet. This evidence was admitted after the witness had stated that he had an opinion based on his examination of the pistol and the fact that there were no powder burns or smudges on the shirt of the deceased. Alexander v. State, 37 Ala.App. 533, 71 So. 2d 520; People v. Smith, 25 Cal. App. 2d 241, 77 P.2d 277. Cf. Wise v. State, 11 Ala. App. 72, 66 So. 128. Distance was a factor in determining whether or not the pistol was fired with intent to kill. See Phillips v. State, 170 Ala. 5, 54 So. 111.
We think the predicate as laid by the State was sufficient to show prima facie that the statements of the defendant in the nature of confessions were voluntarily made. There is nothing in the record to indicate that under the circumstances prevailing at the time those statements were made, when considered with the age, character and situation of appellant, he was deprived of his choice to admit, to deny, or to refuse to answer. Phillips v. State, 248 Ala. 510, 28 So. 2d 542, and cases cited; Lee v. State, 265 Ala. 623, 93 So. 2d 757. The defendant denied making a statement to the soldier, Furman Jones, or to Elijah Honeycutt, and testified that Officer Grimes "lied." No question was asked of him tending to elicit any statement to the effect that he had been mistreated in any way.
During the cross-examination of the defendant by the chief prosecuting officer, the following occurred:
Thereafter the witness was cross-examined at length concerning his actions before and after the shooting. While this examination was taking place, one of the attorneys for the defendant objected to the solicitor's examining the defendant from what appeared to be a written statement and asked that the defendant be permitted to see that statement.
The trial court thereupon directed the following remarks to the solicitor: "I take it you are reading from a statement made by the witness and I think it is it has already been revealed asked if that was a statement made to Officer Dean, then of course, the witness would have a right to see it." The solicitor replied: "I didn't ask him if this was a statement he made to Officer Dean. I am asking questions, if the court please, and I certainly would be, would like to be able to look in my file once in a while when I am examining a witness and read my memoranda." Following that statement by the solicitor the trial court said: "I will let him ask. Go ahead." After further cross-examination concerning the defendant's actions before and after the shooting the following transpired:
The rule is well established that a witness is not bound to answer as to matters reduced to writing by himself or another and subscribed by him until after the writing has been produced and read or shown to him. Wills v. State, 74 Ala. 21; Kennedy v. State, 85 Ala. 326, 5 So. 300; Manning v. State, 217 Ala. 357, 116 So. 360; Kennedy v. State, 240 Ala. 89, 196 So. 884; Parker v. State, 266 Ala. 63, 94 So. 2d 209; Moore v. State, Ala.App., 97 So. 2d 166. See Lawson v. State, 36 Ala. App. 438, 57 So. 2d 643; Weaver v. State, 33 Ala.App. 207, 31 So. 2d 593.
After the defendant rested his case, the State called Officer Dean as a witness. He testified that the defendant had made a voluntary statement to him, which had been reduced to writing and signed by the defendant. This writing was admitted in evidence over the strenuous objection of the defendant on the ground that it was the written statement used by the solicitor in the cross-examination of the defendant and was being introduced for the purpose of impeaching the defendant, although he had been denied the right to examine the statement before being questioned concerning its contents. The written statement was admitted by the trial court at that point in the trial for the purpose of impeaching the defendant.
*190 We are of the opinion that the admission in evidence of this written statement under the circumstances revealed by this record must work a reversal of this cause.
In Parker v. State, supra, we said in part as follows:
In the instant case, the statement introduced in evidence was written and it was signed by the defendant. He was not permitted to see the statement in order to refresh his memory or to explain any inconsistency, although his counsel requested that he be permitted to do so.
In the brief filed here on behalf of the State, it is not insisted that the written statement was not erroneously admitted in evidence. It is the State's position that the error was harmless to the defendant and therefore should not work a reversal of the cause. It is true that the written statement contains substantially the same version of the circumstances immediately surrounding the shooting as was given by the defendant on his direct examination. But the written instrument contains numerous statements which are apparently in contradiction of other aspects of the defendant's testimony on cross-examination and thereby the defendant was placed in a position before the jury of having told untruths either on the stand or in the making of the written statement introduced.
The State's effort to obtain a conviction of murder in the first degree was based in part at least on the testimony of Officer Grimes to the effect that the defendant after obtaining the pistol stepped back and fired two or three shots at the deceased. Although the defendant does not seem to have been asked the specific question as to whether or not he made such a statement to Officer Grimes, the testimony which he gave depicts an entirely different situation, which if believed by the jury might well have resulted in a different verdict. Under these circumstances the testimony which was improperly admitted and which reflected upon the defendant's veracity cannot be said to have been without injury to the defendant. See Wise v. State, 11 Ala.App. 72, 66 So. 128. We do not feel that the rule of error without injury should be applied to this case where a man's life is at stake.
For this error the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
All the Justices concur.
The State contends that we should grant its application for rehearing and affirm the judgment of conviction for the reason that we erred "* * * in holding without qualification that the State should not be allowed to question the witness about facts concerning his activities surrounding the crime because these facts were also contained in a written statement previously made by the witness, which was not then shown the witness." In the original opinion we said: "The rule is well established that a witness is not bound to answer as to matters reduced to writing by himself or another and subscribed by him until after the writing has been produced and read or shown to him." That language was approved by this court in Wills v. State, 74 Ala. 21, cited in the original opinion, and means, of course, that a witness cannot be *191 questioned concerning his written statement previously made until after such writing has been exhibited to the witness.
The judgment of the trial court was not reversed because of the cross-examination of the defendant in that we were not satisfied that the record conclusively shows that the solicitor questioned the witness concerning the written statement which he had previously signed. The judgment was reversed because on rebuttal the State introduced in evidence a written statement signed by the defendant for the sole purpose of impeaching him, although the statement had not been previously shown to the defendant. Under our holding in Parker v. State, 266 Ala. 63, 94 So. 2d 209, cited in the original opinion, such action on the part of the State constituted reversible error.
Opinion extended and application for rehearing overruled.
All the Justices concur. | February 12, 1959 |
88002b87-958a-4a9b-a025-1c44cff4479f | Ex Parte Barber | 286 So. 2d 857 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 857 (1973)
Ex parte Regionald V. Barber.
In re Reginald V. BARBER
v.
Lialine BARBER.
SC 599.
Supreme Court of Alabama.
December 6, 1973.
J. U. Blacksher, Mobile, Jack Greenberg, James M. Nabrit, III, and Norman J. Chachkin, New York City, for petitioner.
No brief for respondent.
BLOODWORTH, Justice.
Petition of Reginald V. Barber for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Barber v. Barber, 51 Ala. App. 448, 286 So. 2d 852.
Writ denied.
HEFLING, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | December 6, 1973 |
c66c71f7-681c-4e9b-9a06-bb1deb7a1030 | Morgan v. State | 287 So. 2d 914 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 914 (1973)
In re Matthew Marshall MORGAN, Jr.
v.
STATE of Alabama.
Ex parte Matthew Marshall Morgan, Jr.
SC 543.
Supreme Court of Alabama.
December 13, 1973.
Roy D. McCord and J. Terry Huffstutler, Jr., Gadsden, for petitioner.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Matthew Morgan, a youth of 19 years of age, was tried by a jury of Marshall County Circuit Court on an indictment charging him with the unlawful sale of 4 grams of marijuana. He was found guilty. Morgan was afforded an election by the trial judge, to be sentenced under the old Controlled Substance law or the new Controlled Substance law. He elected to be sentenced under the new law and was sentenced to three years in the State penitentiary by the trial judge. His conviction and sentence *915 were affirmed by the Alabama Court of Criminal Appeals.
Morgan was indicted in October, 1971, and tried on November 16 and 17, 1971. He was sentenced on November 17, 1971. His motion for new trial was denied December 20, 1971. He appealed to the Court of Criminal Appeals on December 29, 1971.
While Morgan's case was on appeal, the legislature of Alabama passed the Youthful Offender Act, which became effective February 10, 1972. He filed a petition for a writ of certiorari in this court to the Court of Criminal Appeals, alleging in substance that he is entitled to be treated as a youthful offender and should be punished under the provisions of the Youthful Offender Act.
Act 335, Alabama Legislature, Third Special Session, 1971, known as the Youthful Offender Act, has been codified as Tit. 15, § 266(1) (2) (3) (4) (5) (6), Code of Alabama, 1940, Recompiled 1958.
Section 266(1) provides that "a person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall and, if charged with a lesser crime, may be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him."
The Act therefore charges the trial judge with the duty to refer any person under 21 years of age, whose case has not been disposed of in the juvenile court and who is charged with a crime involving moral turpitude or is subject to a sentence of confinement for one year or more, to a probation officer to make such investigation requested by the court. Referral in such event is not discretionary, but mandatory, on the part of the trial judge. After the investigation, if the youth consents to examination by the court and trial without a jury, and the court so decides, no further action is taken on the indictment or information unless ordered by the court. After investigation and examination, it is within the discretion of the trial judge whether the youth shall be tried as a youthful offender. The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.
In the case before us the Act was not effective until February 10, 1972, and the Act is not retroactive. After appeal the trial court lost jurisdiction. We cannot see how the trial judge could call the Act to the attention of Morgan when it was not law at the time of trial. The Alabama Court of Criminal Appeals held in Armstrong v. State and Fowler v. State, 49 Ala.App. 720, 275 So. 2d 698 (1972), cert, denied 290 Ala. 256, 275 So. 2d 702, that the defendants were not entitled to raise for the first time on appeal that the trial court committed reversible error in not affording them the benefits of the Youthful Offender Act. The function of a writ of certiorari extends only to questions of jurisdiction of a subordinate tribunal, and the regularity of its proceedings. It is to correct errors on the face of the record. See 4 Ala.Dig., and 14 C.J.S. Certiorari § 1 et seq. There is no error on the face of the record.
Affirmed.
MERRILL, HARWOOD, MADDOX and JONES, JJ., concur. | December 13, 1973 |
4c6aa021-2ce0-4804-bdd8-3f7e4687a749 | Hazelrig v. Thomas | 286 So. 2d 830 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 830 (1973)
Alvin HAZELRIG, Jr., and Herman Hazelrig, et al.
v.
Paul C. THOMAS and Pauline S. Thomas, et al.
SC 252.
Supreme Court of Alabama.
November 29, 1973.
Lange, Simpson, Robinson & Somerville and Reid B. Barnes, Birmingham, for appellants.
Johnston & Shores and Samuel G. McKerall, Burttram & Williams, Birmingham, for appellees.
*831 HARWOOD, Justice.
The bill of complaint in this case was filed on 27 May 1971. The complainants prayed for a right to redeem certain described lands from a prior judicial sale foreclosing a mortgage and certain other relief. The court entered a decree allowing redemption, and this appeal followed.
On September 20, 1963, General C. Thomas and Pauline S. Thomas executed a mortgage to the subject land to Mutual Savings Life Insurance Company. Paul C. Thomas, son of General and Pauline Thomas, became surety for the mortgage debt.
On May 27, 1969, Mutual Savings Life Insurance Company exercised its right of sale and the subject land was sold through a judicial foreclosure sale to Herman Hazelrig and Alvin J. Hazelrig, Jr., for $84,600.00. The Hazelrigs paid the bid price to the Register and received a Register's deed to the subject land. The validity and regularity of this judicial sale is in no wise questioned. The land was surrendered to the Hazelrigs within ten days after the sale.
On June 2, 1969, Paul C. Thomas made a demand in writing on the Hazelrigs for a statement of the amount necessary to redeem.
There was evidence presented going to prove that Paul C. Thomas had his father's general power of attorney and had held this general power through the years. There was also evidence going to show that Paul C. Thomas had informed the Hazelrigs that he wanted to redeem the subject land on behalf of his parents. Paul C. Thomas' letter was answered by attorneys for the Hazelrigs. This letter contained the requested statement of the amounts necessary to redeem. There was evidence tending to show that while this letter was duly posted, Paul C. Thomas denied its receipt. The lower court, however, found that Paul C. Thomas should be deemed to have received said letter.
Two years later on May 27, 1971, a bill for redemption was filed in the Circuit Court of Blount County by General C., Pauline S., and Paul C. Thomas against Alvin J. Hazelrig, Jr., and Herman Hazelrig. In this bill for redemption the complainants alleged certain excuses for failure to tender an amount sufficient to redeem the subject land.
On August 21, 1971, Bishop K. Walker, then the Hazelrigs' attorney, sent yet another letter to the complainants showing the amount necessary for redemption. This amount contained a sum paid by the Hazelrigs for fire insurance on structures on the subject land. Complainants maintained, and the lower court agreed, that the amount paid for insurance was not a proper charge. In addition, the complainants had already averred in their bill for redemption that the Hazelrigs had sold and disposed of portions of the subject land. Complainants maintain that the insertion of improper charges and the sale by the Hazelrigs of portions of the subject land excused them from tender.
We interpolate here that an averment in a bill to redeem to the effect that a purchaser at a judicial sale has conveyed a part of the subject land to other persons furnishes a sufficient excuse for a failure on the part of the redemptioner to pay or tender to the purchaser or his vendee the amount required to effectuate redemption, the purchaser by his subsequent acts having thus put it beyond the power of the redemptioner to redeem the whole tract out of court. Hargett v. Franklin County, 212 Ala. 423, 103 So. 40; Wilkes v. Hood, 237 Ala. 72, 185 So. 748. Further, insurance premiums paid by the purchaser at a foreclosure sale do not constitute a lawful charge to be paid by a redemptioner as provided by Section 732, Title 7, Code of Alabama 1940. Richardson v. Dunn, 79 Ala. 167.
On September 23, 1971, on motion of respondent, the lower court ordered complainants *832 to tender $104,880.00 into court within 30 days.
State National Bank had been named as a respondent, the bill averring that said bank had furnished all or a portion of the money to the Hazelrigs with which they bought the subject land at the foreclosure sale, and had taken a mortgage on the subject land as security for the money so advanced. On 22 October 1971, the bank had a writ of garnishment served on the Register attaching all of the property of the complainants held by the Register. The writ of garnishment averred that in 1968 a judgment in the amount of $18,233.61 plus interest from December 5, 1968, had been recovered by the bank against Pauline S. Thomas, Paul C. Thomas, and Harold C. Thomas.
Complainants made a deposit to the Register as ordered by the court on September 23, 1971, but because of the above mentioned garnishment complainants "withdrew" said deposit.
On October 23, 1971, the complainants asked for and received an extension of time until November 8, 1971, to pay into court the sum ordered by the judge. At the time they requested the extension the complainants cited the above mentioned garnishment as their reason for needing more time.
On November 8, 1971, there was an amendment substituting Fred Hallmark for Paul C. Thomas and Pauline S. Thomas, the Thomases having theretofore conveyed their interest in the subject land to Hallmark. On February 3, 1972, the court held this amendment to be improper and struck Hallmark as a party complainant. Also, on November 8, 1971, time for payment into court by complainants was extended to November 30, 1971.
On November 30, 1971, complainants asked for a further extension of time. The court refused to extend the time and dismissed complainants' bill for redemption with prejudice. This order was filed on December 2, 1971.
The complainants paid the required amount to redeem of $104,880.00, into court on December 30, 1971, and moved for the court to set aside its prior order dismissing complainants' bill with prejudice. The court set this motion for a hearing on January 6, 1972. Also on 30 December 1971, the court entered a further order setting aside its order of November 30, 1971, and ordered the dismissal to be held for naught until further orders were entered.
On January 20, 1972, after continuances from January 6, 1972, the court completed the taking of testimony on the complainants' motion of December 30, 1971, and took the case under advisement. On March 4, 1972, the court decreed that the complainants could continue their action for redemption.
At this time Hallmark having been stricken as a party, only General C. Thomas remained as a party complainant. However, General C. Thomas died and Paul C. and Pauline S. Thomas were made parties complainant by virtue of being co-executors of the will of General C. Thomas. The court further ordered on this date (March 4, 1972) that the respondents furnish a list to complainants of vendees to whom they had sold portions of the subject land.
The list of vendees was furnished to complainants on April 3, 1972. Using this list, complainants, on April 15, 1972, amended their complaint to include the listed vendees as parties respondent.
On April 29, 1972, respondents were ordered to file a "Statement as to Charges" for permanent improvements. The "Statement as to Charges" was filed by the Hazelrigs on May 10, 1972.
On May 19, 1972, complainants gave notice that they did not accept respondents "Statement as to Charges," and that they were appointing a referee. Respondents *833 Hazelrig appointed their referee on May 26, 1972.
On June 8, 1972, complainants made a motion to determine "the exact nature and extent of the `improvements' the respondents * * * claim to have made." This motion was heard and the court entered an order on July 12, 1972, which ordered the referees to determine the value of the permanent improvements on the subject property. In this order, the court gave rather specific instructions to the referees as to what they should consider as permanent improvements.
On August 9, 1972, the respondents additional to the Hazelrigs filed their "Statement as to Charges." In a letter filed August 17, 1972, the complainants rejected respondents' "Statement as to Charges" and appointed a referee. In a letter filed August 24, 1972, respondents appointed a referee.
On October 10, 1972, respondents Hazelrigs made a motion to have the court determine who would be responsible for spraying the orchards on subject land and completing the harvest, and the expenses therefor. The court set this motion for hearing on November 7, 1972.
On November 4, 1972, the complainants made an application for a deed to the subject land. This hearing was set for November 7, 1972.
On November 7, 1972, the court received the report of the referees as to the value of permanent improvements to the subject land. On that same day, the court entered a decree which adopted the report of the referees as to the value of the permanent improvements, and granted the complainants the right to redeem.
From this decree some fifteen of the parties ultimately made respondents in the proceedings below, have perfected this appeal.
A deed was executed and delivered by the Register to the complainants, the complainants having paid the amount necessary to redeem as ordered by the court.
All of the appellants have made sixteen assignments of error, except that the appellants Alvin Hazelrig, Jr., and Hazelrig Fruit and Poultry, Inc., have not assigned as error the overruling of the demurrer to the bill. (Assignment of error No. 1 of all other appellants.) This is of no importance, however, since assignment of error No. 1 was not argued in brief. It did result in the numbering of the assignments by Alvin Hazelrig, Jr., and Hazelrig Fruit and Poultry, Inc., being one less than the number identifying the assignments of the remainder of the appellants, thus contributing more confusion to reviewing this appeal. In the joint brief filed in behalf of all of the appellants, counsel state that since the assignments of the several appellants are for the most part identical, only the assignments of Alvin Hazelrig will be argued.
Assignments of error Nos. 1, 5, 6, 9, 10, 11, and 12, have not been alluded to in brief. Assignment of error No. 13 was specifically withdrawn in appellants' supplemental brief. All of the above mentioned assignments of error will therefore be considered as waived.
The argument in support of assignments of error Nos. 4, 6, and 7, consists only of a copy or paraphrase of the respective assignment of error. This is insufficient to invite our review, it being well settled that a mere restatement or paraphrasing of an assignment is not the substantial argument required by Supreme Court Rule 9. Silavent v. Silavent, 281 Ala. 58, 198 So. 2d 785; Mersereau v. Whitesburg Center Inc., 47 Ala.App. 146, 251 So. 2d 765.
Assignment of error No. 2 reads:
*834 This assignment is faulty in that it charges no error on the part of the court, but is only a partial statement of some of the procedural aspects of the case.
Even so, in argument counsel for appellants contend that the court committed error in that the court "without any specific order setting aside the decree of dismissal merely declared that redemption should be allowed in this case." This argument is not in accord with the record which shows that on 30 December 1971, and within thirty days of the order dismissing the bill, the lower court entered an order which reads:
Therefore had assignment No. 2 been properly stated, it would be without merit.
Appellants' assignment of error No. 3 reads:
The decree of 12 July 1972, merely found that the original "Statement of Charges" filed by the respondents Alvin J. Hazelrig and Herman Hazelrig stated a lump sum charge without identifying what part of said charges were for permanent improvements.
The order then directed the referees to determine the value of permanent improvements made by the various respondents on their respective portions of the lands in question, to make an appraisal of such improvements, and further defined to some extent what were permanent improvements. The referees were instructed to report their findings to the court. The order concluded: "All other matters are reserved for further orders." (Emphasis ours.)
Under this assignment appellants appear to argue that "the complainants forfeited their right of redemption in not having the money available at the proper time."
We have shown above that where a purchaser at a judicial sale has conveyed a part of the subject land to others, and thus thwarted a redemptioner in his efforts to redeem the whole or part of the land, the redemptioner is excused from tendering the amount required to effectuate a redemption. In addition, the payment of insurance premiums paid by the purchaser at a foreclosure sale does not constitute a lawful charge to be claimed by the purchaser, as was done here.
The appellants can take nothing by assignment of error No. 3.
The argument in support of assignment of error No. 4 in appellants' original brief is merely a paraphrase of a portion of assignment of error No. 4. No authorities are cited in this portion of the argument, nor do any of the authorities cited in the two propositions of law set forth in appellants' brief in anywise pertain to assignment of error No. 4.
In appellants'"Reply Brief," which was filed following a "Supplemental Brief of Appellants," the appellants have casually argued assignment of error No. 4. However, where assignments are not argued in the original brief, and therefore deemed to be waived, such waived assignments will not be considered when raised for the first time in a reply brief. Piper Ice Cream Co., et al. v. Midwest Dairy Products Corp. et al., 279 Ala. 471, 187 So. 2d 228; Lunney v. Southern Railway Co., 272 Ala. 611, 133 So. 2d 247; Hughes v. Bickley, 205 Ala. 619, 89 So. 33.
For the reasons above mentioned, we pretermit consideration of assignment of error No. 4.
Assignment of error No. 8 reads:
From the record we infer that the "Dr. Thomas" referred to in assignment of error No. 8 is Paul C. Thomas, one of the appellees.
This assignment is without merit. In the first place the order of the court of July 12, 1972, as we have heretofore shown, pertained largely to the matter of giving instructions to the referees as to what might be considered as permanent improvements. In no wise could this order be considered as a determination of who was entitled to redemption rights.
Further, on page 2 of appellants' brief it is stated:
We agree with observation of counsel as to the futility of arguing the point raised by assignment of error No. 8, for not only was the matter pleaded, but there was ample evidence to support the Chancellor's conclusion that a written demand for a statement of charges had been duly served.
Assignment of error No. 9a asserts that the court erred in its order of March 4, 1972, which set aside its prior order of dismissal, and granted complainants a right to redeem, because no answer had been filed at the time of the entry of the order. This order further directed the respondents Hazelrigs to file with the court a list of all persons to whom they had sold any of the land in question.
At this time Alvin and Herman Hazelrig and the State National Bank were the only named respondents.
All of the named vendees were later joined as parties by amendment. Alvin and Herman Hazelrig and Hazelrig Fruit and Poultry, Inc., filed a joint answer on May 18, 1972, and eleven other respondents brought in by amendment joined in an answer filed June 26, 1972. All of the respondents had filed answers not later than June 26, 1972, other than Ray C. and Nell D. McAnally. However, the McAnallys filed a formal answer on November 7, 1972. They have not joined in this appeal.
Thereafter, and on November 7, 1972, the complainants reopened the case and again resubmitted it on all prior testimony. The court thereupon took the whole case under consideration.
All of the above demonstrates that assignment of error No. 9a is without merit.
Assignments of error Nos. 14 and 15 apparently assert error and, so far as we can determine, raise points either identical with, or virtually identical to, the points raised in assignment of error No. 9a. What we have written under assignment No. 9a disposes of the contentions put forward under assignments of error Nos. 14 and 15.
From our study of this record, and the briefs of counsel, it is our conclusion that it is free of error probably injurious to any substantial rights of the appellants, and the decree appealed from is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | November 29, 1973 |
1e0e68a1-c41f-4ada-bf55-c88ed9e80e00 | Garner v. State | 114 So. 2d 385 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 385 (1959)
Bob GARNER
v.
STATE of Alabama.
6 Div. 361.
Supreme Court of Alabama.
September 3, 1959.
Bevill & Bevill, Jasper, for appellant.
MacDonald Gallion, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
The appellant, Bob Garner, and two others were indicted for murder in the first degree. Appellant demanded a severance and was tried alone and convicted and sentenced to life imprisonment.
Appellant has argued in his brief only one error, and we are persuaded that the argument is well taken.
In rebuttal the State, over the objection of the defendant, proved by witness Nunn that a few days before the alleged crime on which the defendant was being tried, one J. C. Evans knocked Nunn in the head and the appellant, Bob Garner, took Nunn's pocketbook.
In overruling the defendant's objection, the trial court stated:
"Mr. Bevill: We except."
A somewhat similar statement appears in the oral charge of the court, to which the defendant also excepted.
The general rule is that in criminal prosecutions, evidence of prior criminal acts is not admissible since the only facts to be laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, and which alone she defendant is called on to answer.
This rule, however, is subject to some well recognized exceptions. Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, or to establish the identity of the accused (and perhaps as bearing on the issue of insanity when that defense is pleaded in the case.See "The Law of Evidence in Alabama" by Honorable J. Russell McElroy, § 61, pp. 19-20; I Wharton's "Criminal Evidence", 10th Ed., p. 156, § 41.) The authorities also recognize such an exception to show system or plan usually to identify the accused or to show intent. Wharton's, supra, p. 146, § 39. But even under the exceptions noted they or one of them is admissible only when the evidence is relevant to the crime charged. Noble v. State, 253 Ala. 519, 45 So. 2d 857.
Stated another way, the State is not permitted to give in evidence other crimes alleged to have been committed by the defendant unless they are so connected by circumstances with the particular crime charged as that proof of one fact with its circumstances has some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged. Mason v. State, 259 Ala. 438, 66 So. 2d 557, 42 A.L.R.2d 847; Wigmore on Evidence, 3rd Ed., Vol. 2, § 304.
This court as early as 1864, in Ingram v. State, 39 Ala. 247, reversed the trial court for its instruction to the jury to limit its consideration of prior acts of distilling "in aggravation of the fine but for no other purpose". The Ingram case mentions as inadmissible evidence of other distinct crimes when not related to the crime charged except where such evidence is "offered to prove scienter, or intent, or motive, or to make out the res gesta, or to establish identity". 39 Ala. 253. That case did not mention all of such exceptions, but we have noticed them above.
Several of our recent cases have discussed the same principle to the same result. For instance, in Brasher v. State, 249 Ala. 96, 30 So. 2d 31, where the defendant was charged with having carnal knowledge of a girl over twelve, but under sixteen years of age, denounced by § 399, Tit. 14, Code 1940, evidence was held inadmissible as to the defendant's prior carnal acts toward a five-year old girl. The court stated:
In Mason v. State, supra [259 Ala. 438, 66 So. 2d 561], the defendant was on trial for the offense of robbery. The State was permitted to prove that about the same time the defendant had committed several other robberies on other people and establishments. The court in that case entered into a lengthy discussion of the various exceptions to the general rule and the relevancy of evidence sought to be brought under them. We see no good purpose in an elaborate discussion of these exceptions now. (They are noted in the cases we cite.) In concluding that the evidence was inadmissible the court stated:
The case at bar is quite different from such cases as McKenzie v. State, 250 Ala. 178, 33 So. 2d 488, where on trial for assault with intent to rape, the prosecution was permitted to show that about the same time the defendant had taken another victim to the same place under the same circumstances, and making the same pretenses, had committed an assault on this second victim, as tending to show the criminal intent with which he committed the assault on the person in the case under trial. This court there observed:
Also different from the case at bar is Wilder v. State, 30 Ala.App. 107, 1 So. 2d 317 and Johnson v. State, 242 Ala. 278, 5 So. 2d 632, where evidence of other offenses against the accused was admitted to establish identity where the crime had been committed by some novel or extraordinary means or in a peculiar or unusual manner, such evidence affording an inference of identity from the similarity of method; and in Walkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied 240 Ala. 52, 197 So. 81, where the State was permitted to show the defendant's sexual conduct toward other white females as bearing upon intent where he was on trial for assault with intent to ravish and it was in doubt as to whether the defendant might have assaulted the prosecutrix with intent to rob her rather than to ravish her.
From a study of the foregoing authorities and many others not necessary to be cited, we conclude that the proffered evidence in the instant case, of a separate and distinct criminal offense, in no way related to the crime charged, and not coming within any of the exceptions noted, was erroneously admitted. As we see it, its only effect was to show defendant's character as a man who had been previously guilty of another and entirely distinct robbery. This cannot be done. Mason v. State, supra.
The view obtains that so long as the instructions of the court, supra, remained in the case, error to reverse prevailed. Vacalis v. State, 204 Ala. 345, 86 So. 92.
Reversed and remanded.
LAWSON, STAKELY, and MERRILL, JJ., concur. | September 3, 1959 |
6b3f5fb4-4eed-4e1f-8f7d-07f6f0035ad3 | Wells v. State | 292 So. 2d 471 | N/A | Alabama | Alabama Supreme Court | 292 So. 2d 471 (1973)
In re Charles Eugene WELLS, Alias
v.
STATE of Alabama. Ex parte Charles Eugene Wells.
SC 511.
Supreme Court of Alabama.
December 6, 1973.
*472 J. Massey Relfe, Jr., Birmingham, for petitioner.
William J. Baxley, Atty. Gen., Montgomery, and Herbert H. Henry, Asst. Atty. Gen., Birmingham, for the State.
BLOODWORTH, Justice.
We granted certiorari to review a decision of the Court of Criminal Appeals, 52 Ala.App. 351, 292 So. 2d 465.
Briefly, the facts of the case are as follows. On the evening of August 9, 1968, petitioner Wells went to the house where his wife and ten children were living. An argument ensued between petitioner, his wife, Elsie Wells, his son, Ronnie Wells, and his daughter, Brenda Blackmon. According to the testimony, during the course of the argument, petitioner fired several shots with a .25 caliber pistol at his wife, and Ronnie Wells fired a shotgun in defense of his mother and sister. The shots resulted in the death of Elsie Wells and the wounding of Brenda Blackmon. There was some conflict in the testimony as to whether Brenda was hit with a pistol bullet or shotgun slug.
Petitioner contends the trial court erred to a reversal in sustaining the state's objection to the following question asked of state's witness, Mrs. Blackmon, daughter of petitioner, viz:
(During a colloquy with the trial judge, the word "instigated" was apparently changed to "initiated.")
The Court of Criminal Appeals affirmed, holding: (1) there was no definite ruling by the trial judge on this point; and (2) if there were such ruling, it was within the discretion of the trial judge to control the extent of cross-examination.
We reverse and remanded.
We must respectfully disagree with the author of the opinion (an able and distinguished veteran trial judge and practitioner) that (1), there was no definite ruling by the trial judge. The trial judge clearly sustained the objection and cautioned the attorneys not to go into the matter, that it was collateral and highly prejudicial.
As to the Court of Criminal Appeals' holding (2), that such ruling was within the trial court's discretionary power to control the cross-examination, we do not altogether agree, as we shall hereinafter indicate.
The Court of Criminal Appeals cites Benefield v. State, 44 Ala.App. 339, 208 So. 2d 449, cert. den. 282 Ala. 19, 208 So. 2d 455 (1967), for the proposition that, in developing interest or bias of a witness, the range of cross-examination rests largely in the discretion of the trial court and that the court's rulings will not be disturbed unless it clearly appears that the defendant was prejudiced by the rulings. We agree this very general proposition of law expresses the rule of our cases.
In contrast, however, there is our case of Green v. State, 258 Ala. 471, 64 So. 2d 84 (1953) [Headnote 1 & 2], in which this court reversed a defendant's conviction of murder in the first degree because the trial judge refused to permit cross-examination of an important prosecution witness on collateral matters which tended to show bias of the witness. There, this court noted that "the extent to which a witness may be cross-examined depends in some instances on the importance of his testimony" and quoted approvingly from 74 A.L.R. 1154, viz:
In Louisville & N. R. Co. et al. v. Martin, 240 Ala. 124, 198 So. 141 (1940), this court stated with regard to cross-examination of a witness to show that witness' bias:
The court went on to hold that refusal to permit defense counsel to cross-examine plaintiff's witness on collateral matters which indicated bias was reversible error.
Title 7, § 443 provides that, "the right of cross-examination thorough and sifting, belongs to every party as to the witnesses called against him. * * *" (Emphasis added)
It thus appears to be our rule that, notwithstanding the range of cross-examination to develop bias is largely discretionary, where the witness' testimony is important to the determination of the issues being tried, there is little, if any, discretion in the trial judge to disallow cross-examination on matters which tend to indicate the bias of the witness.
Furthermore, our rule is that the fact that a witness has been a complaining witness in another criminal action against the defendant is relevant and material to the issue of the witness' bias. (See Ala. Dig., Vol. 19A, Witnesses,)
In Hill v. State, 210 Ala. 221, 97 So. 639 (1923) [Headnote 8], this court held, in a prosecution for murder, it was proper for defense counsel to ask whether a state's witness, and son of defendant, had sworn out a warrant against the defendant on another matter as tending to show feelings of ill will toward the defendant on the part of the witness. (The error in excluding this inquiry was, however, held not to be error to reverse in view of witness' concession of that fact on rebuttal.)
Similarly, in Allen v. Fincher, 187 Ala. 599, 65 So. 946 (1914) [Headnote 8], this court held in an action for slander it was error to exclude testimony showing that a witness for plaintiff prosecuted defendant for a matter connected with the controversy as going to the issue of bias.
In Beal v. State, 138 Ala. 94, 35 So. 58 (1903) [Headnote 1], this court held in a trial for forgery a prosecution witness may be cross-examined on whether or not he prosecuted defendant by swearing out a warrant against him in an action arising out of the same controversy.
And, in Lodge v. State, 122 Ala. 97, 26 So. 210 (1899) [Headnote 1], this court held admissible, to impeach a 14 year old prosecution witness, who was under the control of his parents, evidence that the witness' father, who had instituted the instant prosecution, had also commenced another prosecution against the defendant, as going to the issue of bias. This seems in accord with the general rule. See generally 98 C.J.S. Witnesses § 560 Ls.
*474 Following the rule of these cases, we would have to conclude that the trial judge erred in refusing to allow the defense counsel to cross-examine Mrs. Blackmon relative to whether she instigated a prosecution against her father (the defendant) for A.W.I.M., arising out of the same events as the instant case. Whether this constitutes reversible error remains to be seen; for the State, in brief and argument, has raised an issue which it contends disposes of this case.
The State contends that, as a condition precedent to asking the question of Mrs. Blackmon, she must first be asked as to the state of her feelings towards her father, the defendant.
The answer to this contention is that such condition precedent is not required in every case. The apparent inconsistency in our two lines of cases on this point is mentioned by Judge McElroy in his Law of Evidence in Alabama, 2nd Ed., Vol. 1, § 149.01(3), pp. 347-349. One line of cases holds the inquiry is necessary. The other, that it is not. In an excellent analysis of these cases, Judge McElroy concludes that to require such preliminary inquiry as a condition precedent is unsound. Judge McElroy comments at page 349, viz:
The apparent confusion in our case law appears now to have been settled by our more recent decisions in Nichols v. State, 276 Ala. 209, 160 So. 2d 619 (1964) and in International Bro. of Teamsters v. Hatas, 287 Ala. 344, 252 So. 2d 7 (1971). In Hatas, supra, the most recent decision, this court held, viz:
Likewise, we see no reason in the case at bar why such question relating to her state of feeling towards the defendant *475 had to be asked of Mrs. Blackmon, the daughter, as a condition precedent to the question propounded to her on cross-examination as to whether she had initiated or instigated a prosecution against her father for assault with intent to murder her.
Again, whether the trial court's ruling constituted reversible error, the Court of Criminal Appeals will have to conclude from a review of the record. It must say whether this error "probably injuriously affected substantial rights" of the defendant. Supreme Court Rule 45. Ala. Dig., Vol. 4. (See Hill v. State, supra, for application of this rule in similar situation. See also, McCain v. City of Montgomery [per Harwood, J.], 38 Ala.App. 568, 92 So. 2d 678 (1956).)
It is thus that we reverse and remand this cause to the Court of Criminal Appeals.
Reversed and remanded.
All the Justices concur. | December 6, 1973 |
41f884b8-4b4d-4def-aebc-21e5d58c4df0 | McCay v. State | 285 So. 2d 122 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 122 (1973)
In re Ronald Faires McCAY, alias,
v.
STATE.
Ex parte Ronald Faires McCay.
SC 560.
Supreme Court of Alabama.
November 8, 1973.
J. Louis Wilkinson, Birmingham, for petitioner.
No brief for the State.
BLOODWORTH, Justice.
Petition of Ronald Faires McCay for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McCay, alias v. State, 51 Ala.App. , 285 So. 2d 117.
Writ denied.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | November 8, 1973 |
6de63612-815a-41e4-b52e-81ec54339093 | State v. Baker | 108 So. 2d 361 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 361 (1959)
STATE of Alabama
v.
John Norman BAKER.
8 Div. 893.
Supreme Court of Alabama.
January 8, 1959.
*362 John Patterson, Atty. Gen., and George Young, Asst. Atty. Gen., for appellant.
Guin & Guin, Russellville, for appellee.
COLEMAN, Justice.
John Norman Baker, appellee, being accused of distilling and illegal possession of a still, was found guilty and sentenced to imprisonment in the penitentiary for one year and one day by a judgment entry reciting in pertinent part as follows:
"On this October 20, 1956, comes the State of Alabama by it's Solicitor, and comes also the defendant in his own proper person in open court, and it appearing to the court that the defendant was arrested and charged with the above named offense on September 12, 1956, and that he having this day given notice of his intention to plead guilty prefer an Information against the defendant and that his case is set for hearing before the court for Saturday October 20, 1956, for a hearing of a plea of guilty on the said Information to be filed by the Solicitor, which is not sooner than 15 days after his arrest for the said offense.
By order also dated October 20, 1956, sentence was suspended and appellee placed on probation for one year. Thereafter, on December 21, 1956, probation was revoked. In accordance with the order of revocation, appellee was taken into custody by the sheriff. Appellee then applied to the Judge of the Circuit Court of Franklin County for writ of habeas corpus. The judge to whom application was made, who also entered the judgment now appealed from is not the same judge who rendered the judgment of October 20, 1956.
The sheriff's return to the writ recites that appellee was held under authority of the judgment of October 20, 1956, and the subsequent order of December 21, 1956.
On hearing the petition for the writ, the judge determined that appellee was illegally imprisoned and ordered him discharged from custody "without being required to serve the sentence previously imposed by the Circuit Court of this county." From this last judgment the State has appealed.
Appellee's motion to dismiss the appeal is denied.
*363 On the merits, the State argues that an attempt to impeach a judgment by habeas corpus is a collateral attack, and, because it is a collateral attack the petitioner must show that the judgment is void, and that mere errors and irregularities are not available by such process.
The purported judgment of October 20, 1956, appears to have been entered under provisions of §§ 260-266, Title 15, Code 1940. § 266 provides that after sentence as provided for by those Code sections, "* * * such defendant shall not have the right of appeal from the action of the court."
The petition in the instant case was addressed to the circuit judge, as distinguished from the court, and we consider the petition as being brought under Title 15, § 1 et seq.; Kirby v. State, 62 Ala. 51.
Of such statutory proceedings this court has said:
We are of opinion that the judgment of October 20, 1956, is void because the judgment entry itself affirmatively shows that the statutory requirements were not complied with in the following particular: § 263, Title 15, recites as follows:
The judgment of October 20th recites in pertinent part as follows:
We interpret that statement to mean that defendant gave notice of his intention on October 20, the same day on which the judgment finding him guilty was entered. This is contrary to the statute. We are of opinion that the legislative intent was to require the giving of notice three days before the plea of guilty could be received, and that the plea could not be made "within three days after notice."
The State argues that this provision is directory and not mandatory. We note that the three-day restriction appears in the statute, in the same clause with and directly after, the provision which prohibits receiving the plea of guilty within fifteen days after arrest.
Amendment XXXVII to the Constitution, which is the basis of legislative authority to dispense with indictments in certain felonies, recites "* * * the defendant cannot plead guilty within fifteen days after his arrest." We do not think it will be seriously contended that the fifteen-day provision *364 is not mandatory. Clearly the amendment undertakes to require that fifteen days shall elapse after arrest before an indictment can be dispensed with and a plea of guilty received. It is reasonable to presume that the legislature, in adding the additional requirement for three days' notice, intended to place the three-day provision on the same plane as the fifteen-day provision beside which the three-day provision appears.
In 1939, shortly after passage of Act No. 227, 1939 Acts, page 367, which is now §§ 260-266, Title 15, Code 1940, the Attorney General rendered an opinion reciting in pertinent part as follows:
Being clear to the view that the judgment of October 20, 1956, is void for the reason stated, we pretermit consideration of other matters appearing of record which might also be held to invalidate that entry. The judgment being void, the circuit judge to whom the application for the writ was addressed correctly held that appellee was illegally imprisoned and ordered him discharged from custody.
Affirmed.
LAWSON, SIMPSON, and GOODWYN, JJ., concur. | January 8, 1959 |
f1bafe72-6588-4912-b640-27ae06c42eb9 | Baer v. Alco Land and Timber Company, Inc. | 285 So. 2d 913 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 913 (1973)
Richard P. BAER, II
v.
ALCO LAND AND TIMBER COMPANY, INC.
SC 235.
Supreme Court of Alabama.
November 21, 1973.
C. LeNoir Thompson, Bay Minette, Samuel L. Stockman, J. Edward Thornton, Mobile, for appellant.
T. Massey Bedsole, Mobile, Norborne C. Stone, Jr., Bay Minette, for appellee.
HARWOOD, Justice.
On 3 August 1972, in Alco Land and Timber Co. v. Baer, 289 Ala. 567, 269 So. 2d 99, this court reversed a decree of the lower court which had granted appellant Baer the right to redeem land sold at a judicial sale. The basis of the reversal was that Baer's bill to redeem had been filed too late in that more than a year had elapsed since confirmation of the sale which this court determined had taken *914 place on 11 March 1970. The cause was remanded with the following instructions:
On 28 December 1972, the Chancellor entered a decree ascertaining the amounts required to be paid by Alco to the Register-Commissioner to make proper restitution, and further divested the legal title to the land in question out of Baer and into Alco. It is from this decree of 28 December 1972, that this appeal has been perfected.
The appellant has made six assignments of error which read:
Assignments of error 3, 4, 5, and 6, are closely related and all pertain to the time within which Baer should have instituted his redemption proceedings.
In his decree from which this appeal was taken, the Chancellor decreed:
In brief counsel for appellant have smitten hip and thigh every point decided by this court in its opinion in Alco Land and Timber Co. v. Baer, supra, which decision was handed down on 3 August 1972.
Counsel have again argued vigorously and at length every point involved in the opinion of 3 August 1972, asserting it is their right to have the opinion of 3 August 1972 again examined by virtue of the provisions of Section 28, Title 13, Code of Alabama 1940, which provides:
As to the scope of the review to be had under the above statute, it was stated in National Commercial Bank v. McDonnell, 92 Ala. 387, 9 So. 149:
We note here that in City of Fairhope v. Town of Daphne, 286 Ala. 470, 241 So. 2d 887, a case cited and relied on by the appellants, one of the assignments of error specifically asserted error in the former opinion.
Assignments of error 3, 4, 5, and 6, can be deemed to apply only to that portion of the decree here appealed from which has been set out above, i. e., that the appellant Baer did not have on the date on which the suit was filed a right to redeem the real estate from the judicial sale. Actually, the Chancellor was only carrying out in this portion of his decree the direction and mandate of this court as contained in the opinion of 3 August 1972. Since the Chancellor was conforming to the mandate of this court in decreeing that Baer did not have a right to redeem as of the date he filed suit, we will treat assignments of error 3, 4, 5, and 6, as though they charged error in the opinion of 3 August 1972, wherein it was held that Baer had not timely instituted his redemption proceedings. We therefore will review our former opinion of 3 August 1972 in this aspect only.
In the opinion of 3 August 1972, it was held that the judicial sale of the land was confirmed on 11 March 1970. The correctness of this conclusion in our opinion of 3 August 1972 is not the subject of any valid assignment of error in the present appeal, and we pretermit consideration of appellant's argument in brief attacking the correctness of this conclusion.
Section 727, Title 7, Code of Alabama 1940, as amended by Act No. 1107, approved 12 September 1969, (see 1969 Acts of Alabama, p. 2042), provides:
Prior to the amendment, Section 727 provided that the real estate could be redeemed within two years of the date of its sale.
Baer's bill to redeem was filed on 30 July 1971. The confirmation of the judicial sale had been made on 11 March 1970. Since the amendment to Section 727 which was effective 12 September 1969, the period of time allowed to redeem from a judicial sale had been fixed at one year.
Alco was a stranger to all of the proceedings leading up to the judicial sale. In Mixon v. Burleson, 203 Ala. 84, 82 So. 98, it is stated:
"The true theory is that the purchaser at the foreclosure sale [judicial sale] is subject, as to redemption rights, to the law in force at the time of his purchase."
To the same effect see Cowley v. Shields, 180 Ala. 48, 60 So. 267.
The sale having come into being upon its confirmation on 11 March 1970, Baer's attempt *916 to redeem more than one year thereafter was not permissible under the plain terms of Section 727. We do not see any question of retroactive application of Section 727 under these circumstances. On the other hand, had a sale taken place prior to the amendment of Section 727, then redemptive rights could not be reduced without running counter to the rule against retroactive application of a statute in such a manner as to affect rights, as distinguished from remedies. See Turberville v. Lynam, 47 Ala.App. 43, 249 So. 2d 865.
We therefore consider that the conclusion reached in the opinion of 3 August 1972 that Baer's bill to redeem was not timely filed was correct, and we adhere thereto.
We have hereinabove set out assignment of error No. 1.
Under this assignment Baer now contends that we should examine the terms of the judicial sale which was confirmed on 11 March 1970, particularly as to the non allowance of interest for the period of time from 11 March 1970 to 31 July 1970, the date which the court had fixed for Alco to pay the balance of its bid, Alco having already paid $51,000.00 as a deposit under terms fixed by the court. On this latter date Alco paid the balance of $460,150.00 due on its bid of $511,150.00, and on the same day the Register executed a deed to the land to Alco.
At no time did Baer file any objections to the decree of confirmation of the sale in which no interest was allowed, and there is evidence in the record that Baer consented to the confirmation.
An owner who fails to resist the confirmation of a sale without sufficient excuse for not objecting, and who in fact approves and consents thereto, cannot later challenge the adequacy of the purchase price, or the terms of the sale. Harris et al. v. Stevenson, 147 Ala. 537, 41 So. 1008.
Further, the decree of confirmation was a final decree from which Baer could have appealed, and on such appeal the entire proceedings of the judicial sale could have been reviewed. Pollard et al. v. Jackson et al., 204 Ala. 31, 85 So. 431.
Baer did not appeal and the six months within which he could have perfected an appeal have long since expired. The appeal before us is from a decree rendered on 28 December 1972, pursuant to the mandate of this court. The decree of confirmation, from which no appeal was taken by Baer, was entered on 11 March 1970. When an appeal is taken from a final decree, an appellant cannot assign as error any other final decree which was not appealed, and which was rendered more than six months before the current appeal was taken. Carter v. Mitchell, 225 Ala. 287, 142 So. 514. We note here that the above doctrine is not in conflict with Section 28, Title 13, Code of Alabama 1940, in that said code section contemplates a prior appeal from a judgment.
We therefore pretermit review of assignment of error No. 1.
In their argument portion of the brief concerning the matter of interest, counsel for Baer have not referred to nor designated any assignment or assignments to which the argument might pertain, but have proceeded to argue the matter in bulk. It is apparently the thrust of appellant's argument that since this court held that the sale was confirmed on 11 March 1970, that, "Alco was chargeable with interest on the unpaid purchase price from that date, and the failure of the trial court to so provide is reversible error." Clearly a portion of the time for which the appellant claims interest, that is from 11 March 1970 to 31 July 1970, cannot now be reviewed as shown above. The period of time from 3 December 1971 to 18 December 1972, specified in assignment of error No. 2, is not mentioned or referred to in the argument. Clearly, assignments of error Nos. 1 and 2 could not have been properly *917 joined nor argued in bulk since they involved different legal principles, even different decrees. Even so, the lack of any argument going to the matter sought to be asserted in assignment of error No. 2 precludes our review thereof.
It is our conclusion that the decree here appealed from is due to be affirmed, and it is so ordered.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX, and FAULKNER, JJ., concur. | November 21, 1973 |
003737d6-9d8e-43f7-9ab7-e9d1d0ede6cf | Hudson v. Coffee County | 285 So. 2d 101 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 101 (1978)
In re Gaston Leroy HUDSON
v.
COFFEE COUNTY et al.
Ex parte Gaston Leroy Hudson.
SC 368.
Supreme Court of Alabama.
November 8, 1973.
*102 Francis H. Hare, Birmingham, for petitioner.
Cassady & Fuller, Rowe, Lane & Rowe, Enterprise, G. A. Lindsey, Elba, for respondents.
HARWOOD, Justice.
This is a mandamus proceeding. The petitioner sought an order to direct the Honorable Riley Green, as Judge of the Circuit Court of Coffee County, Alabama, Elba Division, to expunge an order by which the respondent judge set aside an amendment to a complaint.
This court issued a rule nisi to Judge Green, and he has now filed his answer.
It appears from the record before us that Gaston Leroy Hudson filed a complaint in which multiple defendants were designated in the caption of the complaint.
The single count of the complaint claimed $1,000,000.00 of the defendants for that on to-wit, 19 January 1972, at a place described, the defendants were in charge of a truck, sometimes known as a "low boy" on which a bulldozer was being moved; which said equipment was in charge of the defendants; that the plaintiff was on property with the consent of the owner observing the movements of the bulldozer then being moved on the truck, and that on said occasion the defendant negligently caused or allowed said equipment or said truck of which they were in charge to be operated in such a fashion that as a proximate consequence thereof said truck struck the plaintiff causing certain injuries (which were catalogued); it was further averred that on the occasion of the incident the defendants were then and there engaged in a proprietary function, etc.; the count also asserted that the plaintiff had filed on 14 July 1972, a claim which was attached to the complaint as Exhibit A.
Exhibit A is a copy of a claim filed by the plaintiff in the Commissioners Court of Coffee County, Alabama, to comply with the provisions of Section 115, Title 12, et seq., Code of Alabama 1940, pertaining to filing claims against a county, setting forth the cause and nature of his injuries. The claim is styled "Gaston Leroy Hudson, plaintiff," and the defendants, so called in the claim, are the same as those listed in the caption of the complaint in this suit. In this claim the parties designated as defendants in the caption of the claim are referred to throughout the claim as defendants, or parties, i. e., in the plural.
The defendants appearing specially in the suit below filed pleas in abatement, and the plaintiff filed a motion to strike such pleas. This matter was set for hearing on 6 February 1973.
At this hearing it was called to the attention of counsel for plaintiff that the letter "s" was omitted from the word "defendant" in that phrase of the count which asserted:
Counsel for the plaintiff thereupon in open court amended said count by adding an "s" to the word "defendant." This being done, counsel for the defendants filed a motion to strike the amendment, asserting among other grounds that the complaint showed on its face that the alleged injury of the plaintiff occurred on 19 January 1972, and that the amendment was attempted on 6 February 1973, more than *103 one year after the occurrence complained of; that the original complaint failed to state a cause of action, and the attempted amendment stated a new cause of action which was barred by the statute of limitation of one year.
On 30 March 1973, the court granted the motion to strike the amendment, that is, the letter "s" as above mentioned, and on 10 April 1973, sustained the defendants demurrers to the complaint.
After this ruling the plaintiff filed this petition for a writ of mandamus.
In his answer the respondent, Judge Green, averred that it was his conclusion that the complaint as originally filed failed to state a cause of action; it would not support a valid judgment; no default judgment could be entered thereon; and if a verdict should be returned thereon the defendant would be entitled to a judgment non obstante veredicto. It was further the respondent's conclusion that the amendment created a new cause from that originally attempted to be charged in the complaint, and therefore could not relate back to the commencement of the suit. The answer further avers that the statute of limitations had run, and the demurrer to the complaint was properly sustained. The answer also avers that the amendment having wrought a new and different cause of action, the provisions of Section 239, Title 7, Code of Alabama 1940, are not applicable.
Section 239, Title 7, Code of Alabama 1940, reads:
We are not in accord with the conclusions of the respondent as stated in his answer.
In the summons the names of all of the defendants were set forth. Likewise, in the caption to the complaint all of the defendants are named.
In the count as originally drawn the plural "defendants" was used in stating that the plaintiff claimed of the defendants, etc., and that "the defendants were in charge" of a truck, and that said equipment was in charge and control of the "defendants." Following these averments using the plural of the word "defendants" it was set forth:
After this averment, there is yet another averment in which it is stated that:
*104 One purpose of our amendment statute (Section 239, supra) is to discourage technical objections and to secure a trial of the cause on the merits. Farrow v. Bragg, Adm'r., 30 Ala. 261, at 267. And if an amendment does not take an opponent by surprise and he is ready to meet the amendment, we fail to see how an amendment could work an injustice to the opponent. See Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. Clearly, merely adding an "s" to the word "defendant" did not disturb the reference to the transaction described in the count, which remained the same. Clerical errors may be self correcting by the context of the pleading. Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Starr Piano Co. v. Zavelo, 212 Ala. 369, 102 So. 795.
In view of the multiple defendants named in the summons, the use of the plural word "defendants" in the caption of the complaint, and the repeated description of the defendants as "defendants" in the body of the count except in one place, where even then the pluristic "said truck of which they were in charge" follows the word "defendant" in the singular, we simply do not see how it could be reasonably said that adding the letter "s" to the word "defendant" was anything more than the correction of a patent typographical error. Thus it follows that no change of parties could be said to have been brought about by this amendment. The complaint as filed was therefore not void.
In brief in support of respondent's answer, counsel for respondent have cited several cases for their proposition of law that:
The supporting cases so cited are: Central of Georgia Ry. Co. v. Carlock, 196 Ala. 659, 72 So. 261; Corona Coal Co. v. Huckelbey, 204 Ala. 508, 86 So. 25; McKinley et al. v. Campbell, 217 Ala. 139, 115 So. 98; Sarber v. Hollon, 265 Ala. 323, 91 So. 2d 229, and Russell v. The Praetorians, 248 Ala. 576, 28 So. 2d 786.
We have carefully read the above authorities, and do not consider any of them apt.
In Central of Georgia v. Carlock, supra, suit was against the railroad and an individual, and sought damages for false arrest and imprisonment. Judgment was for the plaintiff. The count on which the case went to the jury merely stated in pertinent parts:
In reversing the judgment this court stated that the count failed to state a cause of action, in that judgment by default could not have been validly rendered thereon, for the court could not have known which of the two defendants the derelict servant's actions could have been ascribed. The court further observed:
No amendment effort was involved.
In Corona Coal Co. v. Huckelbey, supra, suit was against two corporate defendants under the Employers Liability Act. The count alleged that the plaintiff was in the employment of the defendant. In reversing the judgment this court stated that as framed it was uncertain as to whose service the plaintiff was in, or which defendant was operating the mine in question. The count was therefore insufficient, and the demurrer taking the point should have *105 been sustained. Again, no question of amendment was involved.
In McKinley v. Campbell, supra, multiple parties were named as defendants, but only the singular "defendant" was used throughout the complaint. The court observed:
"There is no reference anywhere to defendants."
The judgment for the plaintiff was reversed on the ground that the demurrer to the complaint should have been sustained.
Sarber v. Hollon, supra, presented a question very similar to that presented in Central of Georgia Ry. Co. v. Carlock, supra, in that although multiple parties were named as defendants, the counts on which the case went to the jury alleged that the servant, agent, or employee of the defendant's [i. e. singular] so operated the defendant's truck, etc. While demurrers were filed to the complaint, the court considered that no error could be predicated on the overruling of the demurrers because of the general nature of the grounds assigned to the demurrers. The judgment was reversed, however, on the basis that the counts failed to state a cause of action and the court erred in not giving certain charges requested by the defendants. The court observed as to the averments of the counts:
"Whose agent was he? Whose truck was it?" Again, no right to amend was involved.
In Russell v. The Praetorians, supra, two defendants were sued. Count AA of the complaint claimed damages of the "defendant" rather than the "defendants." A demurrer was sustained to Count AA because of this defect. This court held this ruling correct, observing that:
No question of the right to amend the complaint was present.
We hold that the omission of the letter "s" after the word "defendant" in that phrase of the count already alluded to was nothing more than a typographical error, and when the entire context of the count is read, the error was self correcting.
The lower court therefore erred in striking the attempted amendment to the complaint, and in refusing to permit such amendment.
The writ of mandamus is due to be awarded.
If upon advice of this decision the lower court does not enter an order expunging the order granting the motion to strike from the complaint the proposed amendment, and enter in lieu thereof an order allowing the amendment, a writ to effectuate such ends will issue on request of the petitioner.
Writ awarded conditionally.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | November 8, 1973 |
315d7e6e-557f-4b6e-9247-8e9f6d99b947 | Breazeale v. State | 285 So. 2d 134 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 134 (1973)
In re Charles G. BREAZEALE
v.
STATE.
Ex parte Charles G. Breazeale.
SC 550.
Supreme Court of Alabama.
November 8, 1973.
Rudolph W. Slate, Decatur, for petitioner.
No Brief for the State.
HARWOOD, Justice.
Petition of Charles G. Breazeale for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Breazeale v. State, 51 Ala.App., 285 So. 2d 130.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | November 8, 1973 |
f2ba54b0-12b7-4261-af0e-f443a4d9b72f | Bates v. State | 285 So. 2d 506 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 506 (1973)
In re Paul Warren BATES
v.
STATE.
Ex parte Paul Warren BATES.
SC 579.
Supreme Court of Alabama.
November 15, 1973.
Charles C. King, Huntsville, for petitioner.
William J. Baxley, Atty. Gen., and Kent Brunson, Asst. Atty. Gen., for the State.
BLOODWORTH, Justice.
Petition of Paul Warren Bates for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Bates v. State, 51 Ala.App. , 285 So. 2d 501.
Writ denied.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | November 15, 1973 |
b286870c-ea96-4e4b-bbb0-e9949ad1f2ca | In RE LEE v. State | 285 So. 2d 500 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 500 (1973)
In re John Alvin LEE
v.
STATE. Ex parte John Alvin Lee.
SC 549.
Supreme Court of Alabama.
November 15, 1973.
N. P. Callahan, Jr., Birmingham, for petitioner.
No brief for the State.
BLOODWORTH, Justice.
Petition of John Alvin Lee for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lee v. State, 51 Ala.App. , 285 So. 2d 495.
Writ denied.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | November 15, 1973 |
45f049a8-46dd-40dd-91fd-9a2d3486e2ef | Jackson v. Rodda | 285 So. 2d 77 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 77 (1973)
Sarah L. Rodda JACKSON
v.
J. H. RODDA, Sr.
SC 255.
Supreme Court of Alabama.
November 8, 1973.
Corretti, Newsom, Rogers, May & Calton, Birmingham, for appellant.
Bishop, Carlton & Sweeney, Birmingham, for appellee.
MERRILL, Justice.
This appeal is from a decree ordering the respondent-appellant, Sarah Rodda Jackson, to reconvey to complainant-appellee, her father, J. H. Rodda, Sr., certain real property which he had previously conveyed to her by four warranty deeds all dated and executed January 13, 1966 and recorded the next day.
The bill of complaint, filed in August, 1971, charged mental incompetency to convey and undue influence, and also alleged that Rodda had demanded that his daughter reconvey the property to him but she had refused.
The court's decree stated in part:
The motion for rehearing was denied.
The argued assignments of error charge that there is no evidence to support the conclusion that Rodda was mentally incompetent when the deeds were executed or that there was any undue influence on the part of the daughter.
In a similar case, Chrisman v. Brooks, 291 Ala. 237, 279 So. 2d 500, this court said:
In view of the argued assignments of error, it is only necessary that we list evidence which supports the decree of the court although there was credible evidence presented by the appellant.
Rodda, who was 68 years of age when he testified at the trial, worked for Southern Railway Company. In May, 1964, appellant's seven-year-old son accidently shot and killed Rodda's wife. Rodda suffered a nervous breakdown and was ill for some time. The railroad would not rehire him in his former position. His daughter was looking after him, nursing him during his illness, paying his bills and advised him in his personal affairs. One of Rodda's sons testified that his father depended upon appellant for advice after his wife's death because appellant had obtained a better education than the other eleven brothers and sisters. During the period, May, 1964 and January 12, 1966, Rodda opened a joint checking account of $5,000.00 with his daughter.
Just prior to the execution of the deeds in January, 1966, there had been an explosion in a house he was renting and one or more of the tenants was injured. Appellant was called and she "insisted" that all the property he owned, including his home, be deeded to her. He testified that she said she would see that each of the children would "get an equal part." He told her where the deeds were and she took him to the home of an attorney and friend where the deeds were prepared and executed.
Three of Rodda's children, other than appellant, testified and at the request of the trial court, others who would have testified "substantially the same thing," were not called. The effect of that testimony was that on or about January 12 or 13, 1966, Rodda was emotionally unstable from the loss of his wife, sick, disturbed and would not have known or understood what he was doing in making a conveyance of all his property to appellant for no consideration.
Appellant testified that the property was conveyed to her as a gift because she had been a dutiful daughter in taking care of him. She admitted to the trial court that her father had told her, when he executed the deeds, "that he knew that you would do *79 the right thing by the other children." But when her father requested the property back, she refused to reconvey it. The court asked her what she thought was "the right thing to do about this property." Her reply was, "At my daddy's death, after his funeral expenses and his burial we will negotiate and we will do the right thing." Finally, she stated to the court that she would respect her father's will in handling his affairs, but she would do so at her own time and convenience.
In Groover v. Darden, 259 Ala. 607, 68 So. 2d 28, the court said:
The relationship of parent and child is confidential. Jones v. Boothe, 270 Ala. 420, 119 So. 2d 203; Tipton v. Tipton, 249 Ala. 537, 32 So. 2d 32.
While the trial court did not use the words "dominant spirit" in its opinion, still we think it clear that the court did consider appellant to be "the dominant spirit in the transaction" and there was evidence to support such a finding. It is evident that the trial court did not conclude that appellant had successfully met the burden of the presumption of undue influence cast upon her.
The authorities cited in this opinion support the decree of the trial court.
Affirmed.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | November 8, 1973 |
f360645c-c760-494a-9fa7-86b7b0214aa0 | Character v. State | 287 So. 2d 919 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 919 (1973)
Ex parte Wallace L. Character.
In re Wallace L. CHARACTER
v.
STATE.
SC 612.
Supreme Court of Alabama.
December 6, 1973.
Rehearing Denied January 24, 1974.
G. Coke Williams, Anniston, for petitioner.
No brief for the State.
BLOODWORTH, Justice.
Petition of Wallace L. Character for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Character v. State, 51 Ala.App. 589, 287 So. 2d 916.
Writ denied.
HEFLIN, C.J., and COLEMAN, McCALL and JONES, JJ., concur. | December 6, 1973 |
3869cfcb-3ee9-4064-afb3-36dd34ba559e | Kilpatrick v. State | 285 So. 2d 525 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 525 (1973)
In re Albert KILPATRICK
v.
STATE of Alabama.
Ex parte Albert Kilpatrick.
SC 544.
Supreme Court of Alabama.
November 8, 1973.
Travis W. Hardwick, Decatur, for petitioner.
No brief for the State.
MADDOX, Justice.
Writ denied. By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So. 2d 388 (1961). A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S. Ct. 269, 60 L. Ed. 629 (1916). Our denial of the writ should not be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals, 51 Ala. App. , 285 So. 2d 516. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108 (1971).
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | November 8, 1973 |
7d6af23a-2bab-4ed7-8f2c-7d4e93e7bcf7 | Parker v. State | 285 So. 2d 529 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 529 (1973)
In re Curtis Ray PARKER
v.
STATE.
Ex parte Curtis Ray Parker.
SC 589.
Supreme Court of Alabama.
November 15, 1973.
Charles O. Caddis, Birmingham, for petitioner.
No brief for the State.
COLEMAN, Justice.
Petition of Curtis Ray Parker for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Parker v. State, 51 Ala.App. , 285 So. 2d 526.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, McCALL and JONES, JJ., concur. | November 15, 1973 |
015c666f-5584-4cc1-a07b-fb3da231078b | Warren v. State | 288 So. 2d 826 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 826 (1973)
In re Patrick WARREN
v.
STATE of Alabama.
Ex parte Patrick Warren.
SC 392.
Supreme Court of Alabama.
December 6, 1973.
*828 Thomas M. Haas and Ian F. Gaston, Mobile, for petitioner.
No brief for the State.
McCALL, Justice.
The defendant was convicted of illegally selling marijuana. Under a writ of certiorari, he seeks a reversal of an affirmation of that conviction by the Court of Criminal Appeals, 52 Ala.App. 35, 288 So. 2d 817.
His first contention is that the trial court erroneously permitted the prosecuting attorney to make a comment in closing argument concerning his failure to testify in the case, in violation of Tit. 15, § 305, Code of Alabama, Recompiled 1958. The State's attorney told the jury: "The only one that said he didn't sell it [marijuana] was the little brother." The court overruled the defendant's objection that this was an improper comment on his failure to testify. The State contends that the statement did not raise an impermissible reference to the defendant's failure to take the stand and testify; and furthermore, that it was not a direct reference to the defendant's failure to testify.
While the purpose of the statute, Tit. 15, § 305, is clear, its application to different factual situations is not always an easy task, and oftentimes presents a thought provoking question. The State contends that the prosecutor had a right to counter the weight and credibility of the "little brother's" testimony that no sale had taken place. At the same time we think the State might very well have made its point without specifying that the little brother is "the only one that said he didn't sell it." The State's witness having testified that the defendant did sell the marijuana, there was no other person, who could have testified that the defendant did not sell it, than the defendant himself. The alleged sale occurred at the accused's residence in the presence of his younger brother and an undercover agent. In our opinion this leaves the prosecutor's argument precisely pointing to the failure of the defendant to testify that he did not make the sale, and therefore within the prohibition of the statute. § 305.
To be objectionable under the statute, the comment need not be a direct statement such as: "The defendant did not take the stand and deny the accusation against him." It falls within the purview of prohibited argument if the statement, interpreted in the light of the circumstances of what has transpired in the case, the nature of the evidence against the defendant, the burden of proof fixed by law, and any other circumstances which may have occurred during the trial, has a tendency to show that the solicitor was directing his remark to the failure of the defendant to testify, rather than to a failure by the defendant to submit the testimony of other witnesses who may have been peculiarly subject to his call and known to the defendant to be available to him. Broadway v. State, 257 Ala. 414, 416, 60 So. 2d 701; Street v. State, 266 Ala. 289, 96 So. 2d 686; Padgett v. State, 45 Ala.App. 56, 223 So. 2d 597. It was error not to have sustained the objection to the prosecutor's remark.
The defendant called two witnesses to show that he was entrapped by the undercover agent at the time of the alleged sale of the marijuana. The State was permitted over objection to cross-examine these witnesses as to whether or not they had ever used drugs and smoked marijuana. The defendant contends that the obvious purpose of the questions was solely to discredit his witnesses by singling them out as immoral violators of the law, rather than to show bias or interest on their part.
We think the interrogation was within the scope of legitimate cross-examination. An individual's freedom to indulge in the use of narcotic drugs and marijuana, though declared illegal, remains a public issue in the opinions and actions of many people. In their opinions, people are sharply divided and vocally pronounced on *829 one side or the other of this issue. It cannot be concluded that a witness who himself uses narcotics and marijuana will be unbiased or impartial when he testifies in a cause such as the instant case. The sought-after testimony tends to show a possible bias or interest on the part of the witness for the cause or the offense for which the defendant was being prosecuted, and this may always be shown as affecting the credibility of the witness' testimony. Ex parte State, 199 Ala. 255, 259, 74 So. 366; Martin v. State, 125 Ala. 64, 28 So. 92; Motley v. State, 207 Ala. 640, 93 So. 508; Raper v. State, 30 Ala.App. 302, 4 So. 2d 657.
In 98 C.J.S. Witnesses § 559, p. 498, it is stated:
The privilege of the witness to refuse to incriminate himself by answering pertinent questions is personal to the witness, and cannot be claimed by or for another, including the party by or against whom he is called to testify. 98 C.J.S. Witnesses § 451, p. 291; Southern Ry. Co. v. Bush, 122 Ala. 470, 26 So. 168. The overruling of the defendant's objections to the questions propounded to the witnesses as to their use of narcotic drugs and marijuana was without error.
The defendant's next contention is that he filed a plea of former jeopardy which raised a jury issue. He asserts that the failure of the trial court to submit this issue to the jury for consideration requires reversal. We deem the defendant's pleading, asserting former jeopardy, not to be a special plea of that defense, but a motion to dismiss the indictment. It is so characterized, and, by its allegations, it is such in substance. In the motion, the defendant moves the court to dismiss the indictment and discharge him on the ground that he was placed in former jeopardy when he entered a plea of not guilty to a complaint, allegedly charging a misdemeanor in the lower court, which subsequently bound him over to the grand jury. The motion concludes with the allegation that this action acquitted the defendant of the misdemeanor as charged in the complaint, and hence, he is now due to be discharged.
The motion is not verified, and it was submitted to the court without supporting evidence by the defendant as a motion to dismiss after an oral argument as to its merits. Nothing in the record substantiates its averments. We conclude that there was no error in the court's ruling in this matter.
It also is to be observed that in Johnson v. State, 134 Ala. 54, 32 So. 724, this court held that former jeopardy or acquittal furnishes no ground for quashing an indictment, but that the defense should be raised by special plea. We think the same rule should apply where the special defense is sought to be raised by a motion to dismiss. In Carody v. Commonwealth, 198 Ky. 440, 248 S.W. 1013, the court said that the overruling of the appellant's motion to dismiss the indictment was not error, because such a motion could not take the place of a formal plea of former jeopardy.
Prior to the trial, the defendant filed a motion with the Circuit Clerk to require the State to produce the substance, which the State expected to use as evidence against him, in order to have an examination and chemical analysis made to determine for himself its properties. He contends that this analysis may very well have proved that the form of the substance in question was not prohibited. The court denied the motion on the ground that it was not timely insisted upon.
When a defendant pleads not guilty in a criminal case, the State carries a heavy burden of proof to establish his guilt by the evidence before the jury, and *830 the State's burden should in no manner diminish the defendant's right to test and question, by all legitimate methods, the weight and credibility of the State's evidence against him at all stages of the trial. Impartiality and fairness require that the defendant be aided by all available processes of the court, when invoked, to enable him to test and question the authenticity of the State's evidence against him. So where the contents of an allegedly prohibited substance is in issue and is to be offered against him, is it asking too much for the defendant, that he be allowed as much opportunity to determine the nature of the substance and its characteristics as has been afforded the State? We think not, and it is no answer to the question that the State's expert witness is a skillful scientist and a creditable witness. To enable one to present his defense fully and effectively, the right of cross-examination, thorough and sifting, must remain inviolate, and to enable the defendant to invoke this right, on motion, he should be furnished a sample of the allegedly prohibited substance that will be offered against him in the trial so that he can have its qualities researched by scientists of his choosing. We think that to deny him this right is to deny him due process, especially where his motion to produce was made well in advance of the trial so that it could have been ruled on by the court without causing any undue delay in the trial.
The Supreme Court of Mississippi has held in Jackson v. State, 243 So. 2d 396 (Miss., 1971), that due process mandatorily requires the granting of a defendant's motion for a sample to enable an independent chemist to give an opinion as to whether prohibited marijuana was present in the proffered substance. In that case the court said:
See also the case of Armstrong v. State, 214 So. 2d 589, 596 (Miss., 1968), wherein the court stated:
In the case of State v. McArdle, 194 S.E.2d 174 (W.Va.1973), there was a statute providing for the prosecuting attorney to *831 permit the defendant to make examinations in instances of this kind. The court said:
In James v. Commonwealth, 482 S.W.2d 92 at 94 (Ky., 1972), notwithstanding the existence of a statute authorizing the court to order the attorney for the Commonwealth to permit the defendant to inspect and copy or photograph any relevant scientific tests or experiments made in connection with the particular case, the court seems to hold that the defendant had a right to a sample for inspection by his own chemist irrespective of the statute. The court said:
The truth vel non of the qualities of the substance is put in issue by the defendant's plea of not guilty. All evidence as to that truth is the very essence of determining the guilt or innocence of the accused and should be sought. We think that the court erred in denying the defendant's motions.
The trial court may consider prescribing reasonable safeguards to protect the sample against any violation of its integrity during the course of its examination, if such is deemed necessary, by having the analysis conducted in the presence of the court's representative or in any other reasonable manner.
The decision of the Court of Criminal Appeals is reversed and the case is remanded to the Court of Criminal Appeals to conform to the decision of this court.
MERRILL, COLEMAN, HARWOOD, FAULKNER and JONES, JJ., concur.
I concur in that part of Mr. Justice McCall's opinion for the court holding there was reversible error in the denial of defendant's "motion to produce" the substance which the state expected to use as evidence against him. Jackson v. State, *832 243 So. 2d 396 (Miss., 1971). I also concur in the conclusion that there was no reversible error because of "double jeopardy."
Whether or not there was reversible error in overruling the defendant's objection to the argument by the prosecuting attorney as being a comment on his "failure to take the stand" need not be reached in view of the reversal for denying the motion to produce. It is a close question, in my judgment. Hopefully, such a questionable argument will not reoccur on another trial.
The remaining issue is whether the questions put to defendant's witnesses by the state as to whether or not they used drugs or marijuana were admissible to show bias. Again, I must state that I have grave doubts as to the admissibility of such evidence even to show bias. Judge McElroy, in his valuable treatise Law of Evidence in Alabama, 2nd Ed., Vol. 1, Sec. 149.01(7), p. 352, cites cases allowing cross-examination by both state and defendant to show that witness was arrested or indicted for "the same criminal act" as that for which accused is being tried. But, the questions posed clearly do not fall within that rule. Here, the witnesses were asked whether they had ever used drugs or smoked marijuana. I have been unable to find any case in Alabama permitting such a broad inquiry to show bias. None of the cases cited in the majority opinion support such holding. Nevertheless, I would not reach this issue in view of the reversal on other grounds.
MADDOX, J., concurs. | December 6, 1973 |
1d2e094a-89ba-4a29-9d14-4261882cd200 | Smith v. State | 285 So. 2d 515 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 515 (1973)
In re Gregory L. SMITH
v.
STATE.
Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
SC 562.
Supreme Court of Alabama.
November 1, 1973.
Rehearing Denied December 6, 1973.
William J. Baxley, Atty. Gen., and William G. McKnight, Asst. Atty. Gen., for the State.
No brief for respondent.
McCALL, Justice.
Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Smith v. State, 51 Ala.App. , 285 So. 2d 512.
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. | November 1, 1973 |
a3725194-c532-48a9-8032-b84e2fe4a8e5 | McMullian v. State | 292 So. 2d 129 | N/A | Alabama | Alabama Supreme Court | 292 So. 2d 129 (1973)
In re Fletcher McMULLIAN, alias
v.
STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 337.
Supreme Court of Alabama.
December 6, 1973.
*130 William J. Baxley, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for the State, petitioner.
J. Massey Relfe, Jr., Birmingham, opposed.
PER CURIAM.
The dissenting opinion of Mr. Justice Faulkner properly states the sole issue for our consideration is whether the trial court's ruling in sustaining objections to certain questions asked of a witness regarding his possible prejudice or bias constituted reversible error.
As this court recently held in Ex parte Wells (In re Wells, Alias v. State), [1973] 292 Ala. 256, 292 So. 2d 471, viz:
The Court of Criminal Appeals also appears to have recognized this to be the rule of our cases in its opinion in this cause. McMullian, alias v. State (1973), 52 Ala. App. 321, 292 So. 2d 127. In that opinion, the court held the trial court's ruling was erroneous.
The question is did the trial court's ruling constitute reversible error or was it mere "harmless error" under Rule 45? As we pointed out in Wells, supra, the Court of Criminal Appeals must resolve this question from a review of the entire record.
This court has repeatedly and consistently refused to review on certiorari the application of the harmless error rule by the courts of appeal unless the opinion of the court of appeals sets forth a statement of the facts which authorizes such review. Powell v. State, 224 Ala. 584, 141 So. 260; Bishop v. State, 226 Ala. 147, 145 So. 499; Tortomasi v. State, 238 Ala. 253, 189 So. 905; Brown v. State, 249 Ala. 412, 31 So. 2d 684; Green v. State, 252 Ala. 129, 40 So. 2d 110; Fortenberry v. State, 254 Ala. 342, 48 So. 2d 264; Shouse v. State, 258 Ala. 499, 63 So. 2d 728; Shiflett v. State, 265 Ala. 652, 93 So. 2d 526; Powell v. State, 267 Ala. 100, 100 So. 2d 46; Ellis v. State, 267 Ala. 235, 100 So. 2d 732; Wallis v. State, 267 Ala. 378, 102 So. 2d 31; Luker v. State, 268 Ala. 346, 105 So. 2d 845; Jones v. City of Huntsville, 288 Ala. 242, 259 So. 2d 288; Russellville Gas Co. v. Duggar, 288 Ala. 309, 260 So. 2d 395.
We do not consider the statement in the Court of Criminal Appeal's opinion, viz: "The rulings do not constitute harmless error because of reversals in similar cases" to constitute an application by it of the "harmless error" doctrine.
*131 It is, therefore, that we must conclude, as we did in Wells, supra, that this cause must be remanded to the Court of Criminal Appeals for its determination as to whether the sustaining of the objections herein constituted "harmless error."
Remanded with directions.
HEFLIN, C. J., and COLEMAN, HARWOOD, BLOODWORTH and McCALL, JJ., concur.
MERRILL, MADDOX and FAULKNER, JJ., dissent.
JONES, J., not sitting.
FAULKNER, Justice (dissenting).
Fletcher McMullian was convicted of second degree murder and sentenced to forty years imprisonment. He appealed this judgment to the Alabama Court of Criminal Appeals. That court reversed the judgment of conviction and remanded this cause to the Circuit Court of Jefferson County. The application for rehearing was denied. We granted certiorari.
The sole issue raised for our consideration is the correctness of the trial court in sustaining the objections raised to certain questions to a witness regarding his possible prejudice or bias.
It is always permissible to cross-examine a witness to ascertain his interest, bias or prejudice concerning matters about which he is testifying. Nichols v. State, 276 Ala. 209, 160 So. 2d 619 (1964). Thorough and sifting cross-examination is provided for in Title 7, § 443, Code of Alabama 1940, Recompiled 1958.
The Court of Criminal Appeals relying on Williams v. State, 44 Ala.App. 503, 214 So. 2d 712 (1968) held that the witness' testimony was sufficiently important and adverse to severely limit the judge's discretion in allowing cross-examination. With this principle we cannot agree. This court has often held that the extent of cross-examination is vested in the sound discretion of the trial court and will not be reviewed on appeal except for abuse. Bridges v. State, 284 Ala. 412, 225 So. 2d 821 (1969); Seals v. State, 282 Ala. 586, 213 So. 2d 645 (1968).
Before the trial judge sustained an objection to a question, this witness had already answered several questions concerning possible bias and prejudice. In the record we find the following:
*132 "MR. DECARLO. Judge, we are going to object to that question
The instant facts differ greatly from the situation where no cross-examination is allowed at all. The last question was not an attempt to prove a fact indicating bias. The right of thorough and sifting cross-examination does not mean that the trial judge may not step in when the sifting is merely repetitive.
This witness was not a major one and his testimony merely repeated the events as set out by other witnesses. He had answered a number of questions regarding possible bias. It is within the discretion of the court in a criminal prosecution to refuse the cross-examination of a witness to bring out evidence which would be a mere repetition of the witness' testimony already in the possession of the jury. Newman v. State, 160 Ala. 102, 49 So. 786 (1909).
Finding no abuse of discretion by the trial court, it is my opinion that the judgment of the Court of Criminal Appeals should be reversed and the trial court judgment affirmed. | December 6, 1973 |
f317b618-bd1a-47e6-b198-057544ac02a1 | Lowery v. State | 286 So. 2d 67 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 67 (1973)
In re Clara LOWERY, alias
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 577.
Supreme Court of Alabama.
November 21, 1973.
William J. Baxley, Atty. Gen., Montgomery, and William P. Gray, Jr., Sp. Asst. Atty. Gen., Tuscaloosa, for the State, petitioner.
No brief for Respondent.
MADDOX, Justice.
Writ denied. By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So. 2d 388 (1961). A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S. Ct. 269, 60 L. Ed. 629 (1916). Our denial of the writ *68 should not be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108 (1971).
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | November 21, 1973 |
e8c54da7-d848-49b0-bc9f-1b8b3914db18 | Antram v. Stuyvesant Life Insurance Company | 287 So. 2d 837 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 837 (1973)
Albert L. ANTRAM, etc.
v.
STUYVESANT LIFE INSURANCE COMPANY, a corp.
SC 276.
Supreme Court of Alabama.
December 6, 1973.
Rehearing Denied January 24, 1974.
*838 Vickers, Riis, Murray & Curran, Mobile, for appellant.
McDermott & Slepian, Mobile, for appellee.
JONES, Justice.
This is an action by Albert L. Antram, appellant, seeking declaratory judgment to determine his rights under a salary continuation provision in a sickness and accident policy issued by appellee, Stuyvesant Life Insurance Company, to Antram's employer, Beloit Corporation, for the benefit of Beloit's employees. Antram was covered under said policy.
On January 4, 1968, Antram was riding in an automobile in Beaumont, Texas, and, while acting within the line and scope of his employment, an automobile driven by Margaret R. Cooley collided with Antram's automobile. As a direct result of said collision, Antram was totally and permanently disabled.
The benefits payable under the policy are:
Antram's benefits were computed as follows:
On November 6, 1968, Antram filed suit in the U.S. District Court for the Eastern District of Texas, Beaumont Division, against Ms. Cooley. On July 16, 1969, the Probate Court of Mobile County, Alabama, declared Antram to be a person of unsound mind, and Letters of Guardianship were issued to his wife, Dorothy Louise Antram.
On August 27, 1969, the Probate Court of Mobile authorized Mrs. Antram, as Antram's guardian, to settle the Texas suit with Ms. Cooley for $100,000.
Prior to and until said settlement, Antram was paid $190.67 per month by Beloit's workmen's compensation carrier who would otherwise have been obligated to continue said payments until they reached a total of $176,600. The total amount of workmen's compensation payments received prior to the settlement was $2,682.68.
Pursuant to Title 26, § 312, Code of Alabama 1940 (Recomp.1958), the workmen's compensation payments were discontinued on September 4, 1969, and Antram was required to refund the $2,682.68 received from the carrier prior to the settlement.
After settlement, the discontinuance of the workmen's compensation to Antram, and the reimbursement of the $2,682.68 to the carrier, appellee continued to deduct the $190.67 per month from the salary continuation payments although Antram demanded that the appellee cease making such deductions.
However, on January 1, 1970, when social security benefits were increased by 15%, the appellee reduced the monthly payments to the appellant to $80.08. On January 1, 1971, social security benefits were increased by 10% and the appellee reduced the salary continuation payment to $62.08. The Social Security Act was amended again in September of 1972, increasing the benefits by 20%, and the appellee accordingly reduced its payments to the appellant to $22.70.
Appellant requested the court to declare that the appellee was not entitled to deduct $190.67 per month from his salary continuation payment and to direct the appellee to reimburse to Antram the sums representing said workmen's compensation benefits *839 previously deducted from the salary continuation payments.
The appellant contends that no workmen's compensation benefits were or are paid or payable to him as the result of the third-party recovery which excused the carrier from liability.
The appellee contends that Antram's accident was incurred in the line and scope of his employment and that workmen's compensation benefits were and are paid and payable to Antram within the meaning of those terms as they were used in the policy.
The court entered a decree on August 17, 1972, holding that the exclusionary clause contained in the disability policy was applicable to Antram and therefore Antram was not entitled to the relief prayed for. Hence the appeal.
The issue is whether the words "or payable" should be interpreted as authorizing the insurer to deduct the workmen's compensation benefits from the salary continuation payment where the insured did not receive such benefits due to a settlement with the third-party tort feasor. Otherwise stated, when the insured does not receive any workmen's compensation benefits due to a settlement with a third-party tort feasor, should the insurer be allowed to reduce the payments it is obligated to make to the insured under a salary continuation insurance policy by the amount the insured would have received under the Workmen's Compensation Act if there had been no third-party recovery merely because the insured's injury fortuitously occurred while the insured was acting in the line and scope of his employment? We answer in the negative and hold that the trial court erred in allowing the offset of $190.67 per month (the amount of workmen's compensation benefits which would have been payable except for the third-party recovery) against the salary continuation provision of the policy.
The appellant contends that the policy is ambiguous and that interpreting "or payable" to authorize the insurer to deduct payments that he, the appellant, was never entitled to receive, due to a third-party settlement, is unreasonable, illogical, and has the effect of allowing the insurer to participate in the third-party settlement. The appellant relies heavily on Baggett v. Webb, 46 Ala.App. 666, 248 So. 2d 275 (1971), Cert. den. 287 Ala. 725, 248 So. 2d 248 (1971), although he acknowledged that this case is not directly in point. The only case cited by appellant which bears directly on the issue before us is Burkett v. Continental Casualty Company, 271 Cal. App. 2d 360, 76 Cal. Rptr. 476 (1969).[1]
The appellee argues that the workmen's compensation benefits are still payable subject to a credit resulting from the thirdparty recovery. Appellee contends that Land v. Continental Casualty Company, 284 Minn. 453, 170 N.W.2d 568 (1969) is directly in point and requests that this Court adopt the reasoning of Land. The appellee also cites Wise v. American Casualty Company, 117 Ga.App. 575, 161 S.E.2d 393 (1968) in support of its arguments. The only Alabama case relied on is Phillips v. The Prudential Insurance Company of America, 285 Ala. 472, 233 So. 2d 480 (1970), which held that the exclusionary clause in a family hospital policy stating that the policy did not provide benefits for an injury coversed by any Workmen's Compensation Act, related to the type of injury placing the claimant under the workmen's compensation law, rather than to the benefits flowing from such law. The appellee also argues that the Court should not remake its contract with Beloit.
The Alabama cases cited are neither by direct application nor by analogy dispositive *840 of this precise issue now before us. The California Burkett case stands foursquare for the position of the appellant (injured employee) as does the Minnesota Land case for the appellee (insurer). Faced with a first impression case in Alabamaand with split authority from other jurisdictionswe must return to our basic rules of interpretation and construction of insurance contracts to resolve this issue. As summarized by the Alabama Court of Appeals in the 1961 case of Mercantile Life Insurance Company v. Johnson, 41 Ala.App. 307, 132 So. 2d 248,
Likewise the expansion of this rule was stated by the same court during the same term in Globe Life Insurance Company of Alabama v. Howard, 41 Ala.App. 621, 147 So. 2d 853, thusly:
We believe the "plain and ordinary" portion of the above rule is here applicable. Within the context which we are asked to construe this contract, we see nothing ambiguous about the word "payable". The mere fact that adverse parties contend for different constructions does not of itself force the conclusion that the disputed language is ambiguous. Under the stipulated facts of this case, workmen's compensation benefits are payable or they are not payable. Title 26, § 312, Code of Alabama 1940 (Recomp.1958), as amended, provides the irrefutable answer. Where the injured employee received a third-party recovery in excess of workmen's compensation benefits, there is no liability on the part of the employer, or its compensation carrier, to pay workmen's compensation benefits. Indeed, except for its share of the employee's attorneys fees, as provided in the last sentence of § 312, the third-party recovery in such cases operates as a complete bar to any remedy for workmen's compensation payments.[2]
The contention that the injured employee could have elected to forego the third-party recovery and thereby entitled himself to workmen's compensation benefitsand, therefore, such benefits are "payable"is untenable. The inquiry is not what he could have donehence producing a hypothetical situationbut rather the inquiry is what in reality did he do? In this case he pursued and made recovery, as he had a right to do, in his third-party action. Once his third-party recovery was effected, workmen's compensation benefits were not payable.
An examination of the insurer's treatment of social security benefits reveals an interpretation by the insurer of the word "payable" totally consistent with our holding. The insurer did not fix the status of such benefits as of the time of the original computation of benefits under the policy, but rather it continued to credit the social security increases as they accrued. With this we agree. This is clearly the field of operation intended by the word "payable". The only consistency perceivable by an adoption of the insurer's contention with respect to the workmen's compensation offset is found in a result most favorable to the insurer. When this interpretation is applied equally, credit for social security payments is due to the full extent that such payments are "payable" to the insured; and likewise no credit is due where workmen's compensation benefits are not "payable".
*841 We now address ourselves to one remaining aspect of the case. On inquiry of counsel by the Court during oral argument, disclosure was made to the effect that plaintiff's counsel had availed himself of the "attorneys fees" provision in the last sentence of § 312. This he had every right, indeed duty, to do. This provision states:
The "reduction in the employers liability to pay compensation" effected by the third-party recovery was $17,600. The insurance carrier was rightly charged with its proportionate share of the plaintiff's attorneys fees for effecting such recovery. To the extent the workmen's compensation insurance company paid such fees, the appellee (insurer) is entitled to a credit, this being workmen's compensation benefits "paid or payable". The fact that such payment is designated as attorneys fees is of no consequence since the end result inures to the direct benefit of this injured employee and third-party plaintiff. Baggett v. Webb, supra.
Therefore, a proper inquiry on remand of this case is the amount of any payment made by the workmen's compensation carrier to the employee or his attorney by way of attorneys fees in the third-party action. An allowable credit against benefits provided under the salary continuation policy here under consideration would then be appropriate.
Reversed and remanded.
HEFLIN, C.J., and MERRILL, HARWOOD, BLOODWORTH, McCALL and FAULKNER, JJ., concur.
COLEMAN and MADDOX, JJ., dissent.
MADDOX, Justice (dissenting).
I must respectfully dissent. I do not think the words "payable under Workmen's Compensation . . . or disability benefits law . . ." are ambiguous. I believe we should follow the reasoning of Land v. Continental Casualty Co., 284 Minn. 453, 170 N.W.2d 568 (1969), which the majority admits stands "foursquare" for the appellee (insurer).
In Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So. 2d 315 (1958), this Court said:
In Phillips v. Prudential Ins. Co. of America, 285 Ala. 472, 233 So. 2d 480 (1970), this Court, in construing a clause in a policy which did not provide benefits with respect to "sickness or injury covered by any workmen's compensation act" stated that ". . . it is the type of disease or injury that calls into play the exclusion rather than the amount of benefits that may be received . . ." The injury to Antram was covered under Workmen's Compensation laws and benefits were paid because the injury arose out of Antram's employment. I believe this Court's case of Phillips v. Prudential Ins. Co. of America, supra, gives guidance in interpreting provisions of the insurance contract here. I also believe we should follow the Land case, since it is on all fours and construes a provision of Minnesota's Workmen's *842 Compensation Law which is similar to Section 312, Title 26. The Minnesota court held that benefits recovered from a third party tortfeasor by a covered employee were "payable" under a Workmen's Compensation Law.
Furthermore, I cannot agree that Burkett v. Continental Cas. Co., 271 Cal. App. 2d 360, 76 Cal. Rptr. 476 (1969), stands "foursquare" for the insured. There, Burkett did not make claim for Workmen's Compensation benefits. Burkett's insurer put on a witness who testified Burkett would have been entitled to such benefits had he applied for them. Here, the insured had been paid or had already established eligibility to Workmen's Compensation benefits. The California court said:
"The contract of insurance, which is a group policy, provides that the benefit payable shall be `LESS ANY AMOUNT PAID OR PAYABLE UNDER ANY WORKMEN'S COMPENSATION, OCCUPATIONAL DISEASE ACT OR LAW.'
"The insurance company presented as a witness Mr. John O'Connell, a lawyer who had been a member of the Workmen's Compensation Appeals Board and its predecessor, Industrial Accident Commission, from July 1963 to February 1967. (Trial was in August 1967.) He testified that if Mr. Burkett had applied for workmen's compensation, which he did not do, he would have been eligible for the amounts which were later deducted from the amount awarded, as described above. He conceded that he could not testify that Mr. Burkett actually would have been paid these amounts, saying, "I don't think anybody can say that.'
"There is a good deal of discussion in the briefs about the admissibility of testimony of an expert as to what result there might have been had application been made for workmen's compensation; and also about Mr. O'Connell's testimony in particular, especially because he conceded that he was not qualified to answer whether the Zollinger-Ellison Syndrome (which a physician testified at the trial was the plaintiff's ailment) was a natural or reasonably probable result of the employment. Mr. O'Connell had tried to place himself in the position of a referee and had concluded that the opinion of the testifying physician would show that the disability was either caused or aggravated by Mr. Burkett's activities as an employee of the bank.
"[1a] We think it is unnecessary for us to go into the subject of the general competency of an expert to testify as to the likely results of a proceeding which was never commenced, or into the matter of appellant's assertions of deficiencies of Mr. O'Connell's testimony. The policy does not contain any statement of an obligation on the part of the insured to apply for workmen's compensation. The word `payable' does not necessarily mean that which might (or might not) have been obtained by the commencement of proceedings under the Workmen's Compensation Act. It is subject to the meaning that what has been awarded by the Workmen's Compensation Appeals Board but has not yet been collected is `payable.' [2] The terms of an insurance policy are to be construed strictly against the insurer. (Southwestern Funding Corp. v. Motors Insurance Corp., 59 Cal. 2d 91, 94, 28 Cal. Rptr. 161, 378 P.2d 361; Continental Casualty Co. v. Zurich Insurance Co., 57 Cal. 2d 27, 32, 17 Cal. Rptr. 12, 366 P.2d 455.) [1b] We find nothing which would require the insured to take upon himself the burden of proving his case before the Workmen's Compensation Appeals Board and its referees. Especially do we find no reason for requiring such action when there is no evidence that the company made demand either by general announcement to the employees covered by the policy or by particular demand upon plaintiff.
"The argument of the insurance company does not take into consideration the determined resistance which might have been made by a workmen's compensation carrier against any claim made by Mr. Burkett.
*843 Moreover, it overlooks the fact that the very condition which caused his disability was one which, by defendant's own arguments, was caused by over exertion in his business activities and which might have been aggravated by a contest to obtain workmen's compensation. It is true that this difficulty must be faced by many applicants for workmen's compensation who must rely on that form of relief. [3] But one who purchases a disability insurance policy need not take proceedings to relieve his insurer by seeking other remedies, unless the policy clearly obliges him to do so."
It seems to me that if the California Court had been faced with the facts of this case, it would have held as I suggest. Here, Antram had been awarded benefits. In the California case, the insured had not. There was nothing contingent or doubtful about Antram's award. In the California case, the insured had not even applied for benefits under Workmen's Compensation.
Based on what I have said, I would affirm the trial court. Consequently, I respectfully dissent.
[1] For additional cases relating to the general issue of offset of workmen's compensation payments, although not here factually analogous, see King Sturgill, Jr. v. Life Insurance Co. of Georgia, 465 S.W.2d 742 (Tenn.App. 1970); and Songe v. Tennessee Life Insurance Company, 260 So. 2d 149 (La.App., 1972).
[2] This is not to be construed as a bar to recovery of medical and hospital expenses. See Liberty Mutual Insurance Co. v. Manasco, 271 Ala. 124, 123 So. 2d 527. | December 6, 1973 |
7794ea15-bfee-4263-ae40-bfc79e08a9dd | Armstrong v. Security Insurance Group | 288 So. 2d 134 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 134 (1973)
John A. ARMSTRONG et al.
v.
SECURITY INSURANCE GROUP, a corporation.
SC 230.
Supreme Court of Alabama.
December 13, 1973.
*135 Louis A. Mezrano, Birmingham, as Administrator of Estate of William L. Cofield, deceased.
Neal C. Newell, Birmingham, for appellant, John A. Armstrong.
James M. Fullan, Jr., Birmingham, for appellant, Mary Ann Cofield.
John W. Clark, Jr., Birmingham, for appellee.
MADDOX, Justice.
The question presented by this appeal is whether Security Group Insurance is required to defend its named insureds in a law suit filed against them. To answer this question, we must determine the effect of an "intentional injury exclusion clause" in the policy.
Security issued a policy of liability insurance to Mary Ann and William Cofield d/b/a Lakeview Sandwich Shop. During grand opening of the new sandwich shop, a fight broke out in the crowded shop over ownership of a beer. Appellant, John Armstrong, was involved in the altercation. Insured William Cofield, who was helping his wife, Mary Ann, in the sandwich shop, intervened. Cofield pulled a gun, and pointed it at Armstrong. The gun fired, severely injuring Armstrong.
Armstrong filed suit against the Cofields seeking to recover $250,000 as damages. The Cofields called upon Security to defend.
Pertinent sections of the policy provide:
In the policy, "occurrence" is defined as ". . . an accident . . . which results. . . in bodily injury . . . neither expected nor intended from the standpoint of the insured."
Security Insurance Group filed a bill for declaratory judgment to determine its liability under the policy. In the declaratory judgment proceeding from which this appeal is taken, the lower court held the insurer is not liable on the policy to defend the Cofields nor pay any judgment which might be rendered against them. The court held the shooting was not an "accident," and thus the "intentional" exclusion clause was applicable to both named insureds.
Armstrong's three assignments of error are: (1) The decree is not supported by the evidence; (2) the court erred in finding that the injury was not an "occurrence" within the policy definition; and (3) the court erred in finding that the injury was not an "occurrence" as to Mary Ann Cofield.
Insofar as insured William Cofield is concerned, the decree of the lower court is sustained. There was substantial evidence from which the trial court could conclude that as to William Cofield, the "occurrence" was either expected or intended. For example, there was testimony that William Cofield grabbed Armstrong, told another employee that he (Cofield) would handle the fight, brandished a pistol and then shot Armstrong. In other words, there was plenty of evidence that, as to William Cofield, the occurrence and the resulting injury were anything but accidental.
Armstrong argues, however, that mere proof of an intentional act does not exclude liability. He claims that there must be proof that the insured intended to inflict injury. Appellants cite Emergency Aid Ins. Co. v. Dobbs, 263 Ala. 594, 83 So. 2d 335 (1955), for the proposition that an accident occurs even when the act is voluntary if the results are unanticipated or unexpected.
Alabama recognizes a distinction between accidental result and a result which is caused by accidental means. Inter-Ocean Casualty Co. v. Jordan, 227 Ala. 383, 150 So. 147 (1933). But, even if William Cofield did not intend the injuries he inflicted, the court could have found that no accident occurred. In Thomason v. United States Fidelity & Guaranty Co., 248 F.2d 417 (5th Cir. 1957), the court said:
The answer to appellants' argument is that, even assuming their legal reasoning is correct, there was sufficient evidence from which the trial judge could have found Cofield intended to shoot Armstrong. There was evidence that Cofield pointed the gun at Armstrong and that the hammer was fully cocked. A policeman testified that the gun would not fire unless the trigger was pulled. Armstrong's argument here that there is no proof that Cofield intended to injure Armstrong is not persuasive.
We conclude that the trial court's finding as to William Cofield was not palpably erroneous nor contrary to the great weight of the evidence. Murphree v. Henson, 289 Ala. 340, 267 So. 2d 414 (1972).
As to Mary Ann Cofield, however, we hold that the intentional injury exclusion clause does not apply. The record clearly indicates Mary Ann Cofield neither explicitly nor implicitly authorized, directed, or committed an assault upon Armstrong. The occurrence was an accident not expected nor intended by her. While public policy dictates that an insurer cannot indemnify one against his own wrongdoing or violation of the law, [Appleman, Insurance Law and Practice, Vol. 7 § 4252], there is no evidence in this record that Mary Ann Cofield participated in any way in the assault. Exclusion clauses are designed to prevent indemnification of a wrongdoer. However, it is not against public policy to indemnify an insured against the consequences of a violation of law by others without his direction or participation. See 44 C.J.S. Insurance § 242b, pp. 1005,1006.
The exclusion clause reads, in part, "The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay . . ." In Western Casualty & Surety Co. v. Aponaug Mfg. Co., 197 F.2d 673 (5th Cir. 1952), a corporation was entitled to recover on a liability policy for the amount expended in a suit against it by a third party for injuries caused by the president of the corporation. The exclusionary clause said, ". . . Assault and battery shall be deemed an accident unless committed by or at the direction of the Insured." We think the court's language pertinent.
The general rule is that identity of the insured and liability of the insurer is determined from the terms of the contract. See Couch on Insurance, 2d Ed., Vol. 11, § 44.252, § 44.254, pp. 681-682. The word "insured" is defined in the policy here as ". . . any person or organization qualifying *137 as an insured in the `Persons Insured' provision of the applicable insurance coverage. The insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the company's liability." Here, the named insured included both Mary Ann and William Cofield, and since the evidence does not show that Mary Ann Cofield either committed or directed the commission of the assault and battery, the exclusion clause is inapplicable to her.
". . . [W]here a third person seeks to recover from an insured on the basis of injuries or damages allegedly caused by some person other than the named insured, in the absence of a showing that the injury complained of was `at the direction of the named insured, a liability insurer is not relieved of its obligation to the insured by an `intentional injury or damage' clause." [Emphasis added.] See Annotation: "Liability InsuranceWilful Injury," 2 A.L.R. 3d 1238, § 5, p. 1246, and cases cited therein.
According to the terms of the policy whether the occurrence was an accident must be looked at from the standpoint of the insured. Viewed thus, there was no evidence that Mary Ann Cofield directed or participated in the assault. Consequently, as to her, the occurrence was an accident which resulted in bodily injury which she neither expected nor intended.
Appellee makes mention of a cross-assignment of error in its brief. We find no cross-assignment of error in the transcript of the record nor any other record showing that a cross-assignment of error was made. Nothing is presented for our review.
For the reasons set out above, the cause is reversed and remanded.
Reversed and remanded.
MERRILL, HARWOOD, FAULKNER and JONES, JJ., concur. | December 13, 1973 |
c2b7bde4-cf54-4670-ad5d-363c87705f27 | Riddle v. Franklin | 286 So. 2d 841 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 841 (1973)
Jesse RIDDLE
v.
Garmon FRANKLIN et al.
David Wayne RIDDLE
v.
Garmon FRANKLIN et al.
SC 162, SC 163.
Supreme Court of Alabama.
December 6, 1973.
*842 J. Wm. Thomason, Bessemer, for appellants.
Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, III, Birmingham, for appellees.
COLEMAN, Justice.
Plaintiffs appeal from judgments for defendant in actions for damages for personal injury sustained by one of the plaintiffs when a motorcycle on which he was riding as a passenger collided with an automobile operated by defendant.
The collision occurred at approximately nine o'clock at night in December on Warrior River Road, which is a blacktop road leading to campsites on the river. The injured plaintiff testified at the trial that he was seventeen years old. The motorcycle driver testified that he was sixteen years old. The motorcycle was traveling in an easterly direction.
Defendant was traveling in a westerly direction. She turned left into a driveway on the south side of the road. When she placed her car in reverse to back into the highway the motor stalled. Part of the car remained in the eastbound traffic lane. While the car was stalled the motorcycle ran into the car, and the motorcycle passenger was injured.
The plaintiff in one action is the motorcycle passenger and his father is the plaintiff in the other action. The two actions were consolidated for trial and on the appeal.
Plaintiffs contend that the rulings of the trial court were erroneous in three respects.
Plaintiffs argue that the trial court erred in overruling plaintiffs' motion for new trial for that the verdict is contrary to the great preponderance of the evidence.
Plaintiffs argue that the facts are such that the only reasonable conclusion is that defendant was guilty of negligence as a matter of law. There is evidence that at nine o'clock at night on Warrior River Road, in December, defendant was driving in a westerly direction; that she could see clearly for two or three blocks to the east and two or three blocks to the west; that no traffic was coming from either direction; that her front and rear lights were on; that she turned left into the entrance to a driveway on the south side of the road; that her car stalled and was partially in the eastbound traffic lane; that she attempted to start the car but was not able to do so through no fault on her part; that, while her car was stalled, the motorcycle on which plaintiff was riding came into view from the west traveling at a speed of fifty miles an hour and did not slow down until it hit defendant's car over the right rear wheel; and that there is a posted speed sign indicating a speed limit of forty-five miles per hour for traffic traveling east on Warrior River Road at the point of impact.
*843 This court has said:
In light of the evidence noted above we are not persuaded that there is no evidence to support a finding by the jury that defendant was not guilty of negligence which proximately caused plaintiff's injury, or that the trial court erred in overruling those grounds of the motion for new trial wherein plaintiffs assert that the verdict is not sustained by or is contrary to the great preponderance of the evidence.
Plaintiffs assign as error giving to the jury defendant's requested charge as follows:
The son's complaint contained two counts, (A) charging negligence, and (B) charging wantonness. The father's complaint contained only one count, (A) charging negligence.
Plaintiffs first argue that there is a scintilla of evidence to prove that defendant was guilty of wantonness because plaintiff had pulled across the eastbound lane, was blocking a substantial portion of it, and that the lights on plaintiff's car were not on. The witness, Letson, was the driver of the motorcycle on which the plaintiff, who was injured, was riding. Plaintiffs say that the testimony of Letson furnishes evidence to support an inference that defendant's lights were not on. Defendant says that the testimony of Letson does not provide such evidence. Pertinent testimony of Letson is next set out.
*845 Letson testified unequivocally that he saw taillights and could not see taillights on the car that was coming toward him. He also saw some lights he thought were off the road. The only cars shown to be present were defendant's car and the car coming toward Letson. The only taillights Letson could have seen, according to his testimony, were the taillights on defendant's car. We are of opinion that there is no testimony to support an inference that defendant's lights were not on.
As stated above, at the place where defendant turned, she could see two or three blocks in both directions. There is no testimony that any vehicle was in sight of defendant at the time she made the turn to the left. No evidence is pointed out which shows that defendant was aware of any danger from approaching traffic, or other cause, at the time she made the left turn, or that there was any reason for defendant to anticipate danger arising out of making a left turn at the time and under the circumstances shown by the evidence.
This court has said:
See also: Naugher v. L. & N. R. Co., 206 Ala. 515, 91 So. 254; Smith v. Roland, 243 Ala. 400, 10 So. 2d 367; and Johnson v. McNear, 255 Ala. 457, 52 So. 2d 154.
Under the authorities cited, the evidence fails to show wantonness on the part of defendant.
Plaintiffs' second argument is that giving charge 17 prejudiced plaintiffs because there was a Count B in the complaint filed by the son but there was only one count, Count A, in the father's complaint. It is correct that the father's complaint contained only one count; i. e., Count A, which charges defendant with negligence. The son's complaint contained two counts; i. e., Count A charging defendant with negligence and Count B charging defendant with wantonness.
Plaintiffs state in brief:
Plaintiffs argue further to the effect that plaintiffs were prejudiced by charge 17 because, in charging with respect to contributory negligence of the son, the court, in oral charge, had previously stated to the jury: "... if the son is prohibited from recovery the father is prohibited from recovery."
Prior to the last statement quoted from the oral charge, the trial court, in the oral charge, had instructed the jury as follows:
We are of opinion that the court did not err in giving defendant's charge 17.
Plaintiffs assign as error the action of the trial court in sustaining defendant's objection to certain questions propounded by plaintiffs to certain witnesses.
Two questions were propounded by plaintiffs to the defendant on cross examination as follows:
No evidence was produced to qualify defendant as an expert in the operation of an automobile, or that she had gained by experience an acquaintance with the subject, a knowledge not common to others. Even if other reasons be pretermitted, objections to the questions propounded to defendant were sustained without error for the absence of evidence qualifying her as an expert on procedure for operating an automobile.
Plaintiffs assign as error the action of the court in sustaining objection to three questions propounded by plaintiffs to Garmon Franklin, husband of defendant, on cross examination. He is a defendant in the cases, but the affirmative charge in his favor was given by the trial court. No exception to this ruling is taken by plaintiffs. The testimony given by this witness is summarized by plaintiffs in their brief as follows:
The three questions appear in the pertinent testimony of the witness on cross examination as set out below and are identified by the numbers (1), (2), and (3) which precede the respective questions, to wit:
(1) "Q What's the safest way, Mr. Franklin, to turn an automobile around?
(2) "Q (By Mr. Thomason) Do you know the recommended way to turn an automobile around?
(3) "Q (By Mr. Thomason) Do you know, in the publication the State Department puts out to turn automobiles around they recommend ways to turn one around?
Plaintiffs argue that a party to a suit who has been a policeman for twelve years and has the experience shown by the testimony of the witness should be required to testify as to the safest course of conduct available to a person turning a car around to go in the opposite direction. Plaintiffs say that the witness is shown to be qualified to answer and that the court abused its discretion in the rulings complained of.
*848 The three questions clearly call for an opinion of the witness based on his expert knowledge. This court has said:
None of the three questions here contains any suggestion of facts as to surrounding circumstances on which the opinion called for is to be based. The questions as asked hypothecate no facts but call for a naked abstract or theoretical conclusion unclothed with any circumstance related to the issues in the case.
The charge against defendant is that she was guilty of negligent or wanton conduct in operating the automobile. The facts showing the circumstances of the collision are in evidence. The determination of the issues must rest on the circumstances shown by the evidence. Conduct which is safe or is the exercise of reasonable care under some circumstances may not be safe or the exercise of reasonable care under different circumstances. In a case where plaintiff was riding a motorcycle which collided with an automobile driven by defendant, the Court of Appeals said:
The language quoted from Lessman is taken from the second paragraph of the opinion of this court in Matson v. Maupin & Co., 75 Ala. 312.
If it be assumed arguendo that the witness was qualified to express an expert opinion on the manner in which an automobile may safely be operated, and if other objections to which the questions asked may be subject are not considered, the objections to the questions were properly sustained for the omission of facts on which the opinion of the witness is to be based.
Questions (2) and (3) are subject to the further objections of vagueness and uncertainty as to the meaning of "recommended way" and "the publication of the State Department" on which the opinion of the witness is to be based.
Affirmed.
HARWOOD, BLOODWORTH, McCALL, and JONES, JJ., concur. | December 6, 1973 |
b39c94b4-780e-46bd-bdbc-9796ff52ce86 | STUART CONSTRUCTION CO., INC. v. Vulcan Life Ins. Co. | 285 So. 2d 920 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 920 (1973)
STUART CONSTRUCTION CO., INC., a corp.
v.
VULCAN LIFE INSURANCE CO., a corp., et al.
S.C. 387.
Supreme Court of Alabama.
November 15, 1973.
Rehearing Denied December 13, 1973.
*921 James L. Shores, Jr., Birmingham, for appellant.
Wilters & Brantley, Bay Minette, and John S. Foster, Birmingham, for appellee, Vulcan Life Ins. Co.
Inge, Twitty, Duffy & Prince and E. L. McCafferty, III, Mobile, for appellee Fred Renneker, Jr., and Associates, Inc.
Balch, Bingham, Baker, Hawthorne, Williams & Ward and Edward S. Allen, Birmingham, for appellee Brasfield & Gorrie, Inc.
FAULKNER, Justice.
This is an appeal from a judgment of nonsuit entered by the Circuit Court of Baldwin County on motion of Stuart Construction Co., Inc., after the court sustained demurrers to the amended complaint.
The amended complaint is as follows:
The issue before us is whether Stuart's amended complaint alleged conduct by Vulcan, Renneker, and Brasfield which amounted to an interference with business expectancy pursuant to a civil conspiracy. We agree with the lower court. The demurrers should be sustained.
All parties here are private corporations. There is no statute or body of case law in this State requiring private corporations to engage in competitive bidding. When a private corporation invites *923 contractors to submit bids for the construction of a building, that corporation is under no duty to award the contract to the lowest qualified bidder, unless a statute or ordinance so requires. Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151 (1937).
From the allegations of the amended complaint it does not appear that Vulcan was under a duty to award the contract to Stuart or any other bidder. There is no allegation that Vulcan did not have the right to reject Stuart's bid. Indeed, all that Stuart alleges in this regard is that it expected Vulcan would "fairly and honorably award the construction contract to the low bidder." There is a further allegation that "Vulcan instructed its building committee to study the bids and award the building contract to the lowest qualified bidder." There is a difference between low bidder and lowest qualified bidder. It was Vulcan's right to decide for itself who was the lowest qualified bidder. In examining the complaint further we do not find that Stuart was even the lowest bidder. All that is alleged is that Stuart's bid was lower than Brasfield's bid. Stuart does not allege that any promise or inducement was made by Vulcan to Stuart to get it to submit a bid. There was not alleged any business relationship between Stuart and Vulcan. Boiled down to its practical situation, it was, "You pays your money, and you takes your choice."
This court has defined conspiracy as a combination to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251 (1954); Gaines v. Malone, 244 Ala. 490, 13 So. 2d 870 (1943).
We have never held that there is any civil liability for a conspiracy unless there is an actionable wrong. This court in O'Dell v. State, 270 Ala. 236, 117 So. 2d 164 (1959) said:
The complaint failed to allege any actionable wrong, and since there appears to be no actionable wrong committed against Stuart in this case, an action for civil conspiracy standing alone will not lie.
Affirmed.
COLEMAN, HARWOOD, McCALL and JONES, JJ., concur. | November 15, 1973 |
49f8ba0d-b28b-4a47-b530-08470c219c24 | Ballard v. State | 286 So. 2d 72 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 72 (1973)
In re Bernard Albert BALLARD
v.
STATE.
Ex parte Bernard Albert Ballard.
SC 584.
Supreme Court of Alabama.
November 15, 1973.
Thomas M. Haas and J. D. Quinlivan, Jr., Mobile, for petitioner.
No brief for the State.
*73 COLEMAN, Justice.
Petition of Bernard Albert Ballard for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Ballard v. State, 50 Ala.App. ___, 286 So. 2d 68.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, McCALL and JONES, JJ., concur. | November 15, 1973 |
789884c5-8657-4eea-b3ef-be14b6a24b8b | Wallis v. State | 286 So. 2d 912 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 912 (1973)
In re Harold WALLIS
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 614.
Supreme Court of Alabama.
December 6, 1973.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, petitioner.
No brief for respondent.
*913 COLEMAN, Justice.
Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Wallis v. State, 51 Ala.App. 499, 286 So. 2d 909.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, McCALL and JONES, JJ., concur. | December 6, 1973 |
194afdbe-b0cf-4dd2-8a91-a9da2cfabaf5 | Sterling Oil of Oklahoma, Inc. v. Pack | 287 So. 2d 847 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 847 (1973)
STERLING OIL OF OKLAHOMA, INC., et al.
v.
Howard M. PACK et al.
Bart B. CHAMBERLAIN, Jr., et al.
v.
STERLING OIL OF OKLAHOMA, INC., et al.
SC 69, 69X, 69X-1, 69X-2, 69X-3, 69X-4.
Supreme Court of Alabama.
November 15, 1973.
Rehearing Denied January 24, 1974.
*850 Willis C. Darby, Jr., Mobile, for appellant and cross-appellee, Sterling Oil of Oklahoma, Inc., and for appellants, Herbert C. Smyth and W. H. James, Jr.
Harold D. Parkman and W. Dewitt Reams, Mobile, for appellee and cross-appellant Bart B. Chamberlain, Jr.
C. A. L. Johnstone, Jr., Mobile, for appellees Big Four Oil Co., Inc., James E. Kemp and Four States Drilling Co., Inc. and cross-appellant, Big Four Oil Co., Inc.
Sam. W. Pipes, III, Mobile, for appellees and cross-appellants, Howard M. Pack and Joseph Kahn.
Champ Lyons, Jr., Montgomery, for appellees and cross-appellants, The Equity Corp., Richard E. Peck, as trustee for The Equity Corp. and Cornwall Trading Corp.
Joseph M. Matranga, Mobile, for appellee and cross-appellant, George H. Jett.
PER CURIAM.
Ten years of litigation culminate in this appeal. This total litigation between the parties consists of three separate law suits arising out of the purchase as of May 1, 1959, of Gulf Oil Company's and Gulf Refining Company's interests in the Citronelle oil field and gathering system in Mobile County, Alabama. Each of these three actions has a long, intertwined, and convoluted history.
In 1956, Bart B. Chamberlain, Jr. and some associates formed a corporation to acquire oil and gas leases from the State *851 of Alabama on submerged lands off the Alabama coast. The corporation so formed was Tidelands Development Corporation and from the start it was the intention of its creators to sell the corporation to Sterling Oil Company of Oklahoma. Early in 1957, Chamberlain met in Miami, Florida, with Jesse A. True, the President of Sterling, and it was agreed that Sterling would buy Tidelands for 250,000 shares of Sterling stock, $5,000 in cash, and the payment of the initial rental fee to the State of Alabama, being $121,500.
As a result of the above transaction, Chamberlain acquired 200,000 shares of Sterling stock, began to take an active interest in Sterling's business activities, and to represent Sterling as one of its attorneys.
During this same period of time (early 1957), there was pending in the U.S. District Court for the Southern District of New York anti-trust litigation against Gulf Oil Corporation and several other oil companies. The plaintiff was Gerald B. Waldron who alleged anti-trust violations on the part of the defendants arising out of a Middle East oil transaction. True of Sterling had received information, and he in turn informed Chamberlain, that Gulf and Waldron were each separately interested in settling the litigation by creating or finding a "normal" business transaction through which Gulf could buy or sell properties, with Waldron indirectly benefiting therefrom. This benefit would induce Waldron to dismiss Gulf as a party defendant in the anti-trust suit.
True solicited Chamberlain's assistance in arranging for Sterling to be the third party to the business deal sought by Gulf and Waldron. Chamberlain agreed and, during the spring and summer of 1957, Chamberlain and True presented several possible transactions involving foreign properties, each of which was rejected by Gulf. Then Chamberlain hit on the idea of purchasing the Gulf properties in the Citronelle oil field in Mobile County, Alabama, as the transaction to accomplish the settlement. The interests owned by Gulf in Citronelle consisted of producing leases and non-producing leases. Gulf Refining Company, a wholly owned subsidiary, owned an oil pipeline and gathering system which served the Citronelle field. As originally contemplated, the transaction with Gulf was to be a 50/50 proposition with Chamberlain in charge of the negotiations and Sterling to handle the financing and to provide the operational expertise required to manage and operate the Citronelle properties to be purchased from Gulf.
The negotiations went on for several months before Gulf determined that it would not deal with Sterling. It was Gulf's intention to retain an overriding royalty interest in the producing leases as part of the consideration for the sale. After a careful study of Sterling's financial condition and technical operating experience and ability, Gulf determined that there would be no deal if Sterling was to be the operating company.
Still anxious to deal with Chamberlain, Gulf suggested George H. Jett's company as a substitute for Sterling as the operating company and Chamberlain was able to interest Jett in the transaction. Jett was brought into the deal with Chamberlain and Sterling under a written agreement dated April 16, 1958. Because this agreement gave Sterling a certain amount of operational control over the properties, Gulf still refused to come to terms. To remove this objection, it was decided that Sterling's interests would thereafter be held in trust and Sterling would not have any direct control over the operation of the Citronelle properties after they were acquired from Gulf.
With Gulf's concern over Sterling's participation resolved, Chamberlain continued intense, but intermittent, negotiations during the remainder of 1958. Gulf was considering the sale of its Citronelle interests very carefully and as a means of fixing its value was awaiting the results of an engineering *852 study which was being done at Citronelle by Core Laboratories. Finally, in February, 1959, Chamberlain and Jett met with representatives of Gulf in Houston, Texas, and the terms of an agreement were settled by which Gulf would sell its Citronelle holdings.
As the first step to complete the deal, Sterling assigned to Chamberlain and Jett an agreement Sterling had obtained from Waldron in March, 1958. The "Waldron Agreement" provided that on the date Sterling acquired the producing properties of Gulf at Citronelle, Waldron would dismiss Gulf as a defendant in the anti-trust suit and Sterling would pay to Waldron $150,000 and a like amount each successive year for nine years. Although this agreement was assigned to Chamberlain and Jett, Sterling was not released from its obligations under the agreement. Additionally, Sterling was instrumental in obtaining month to month extensions of the Waldron Agreement pending negotiations with Gulf.
The next step was to arrange for the financing of the acquisition. Sterling's promises of providing the financing did not materialize and Chamberlain and Jett were forced to obtain the necessary funds themselves. The basic financing was ultimately arranged with the Chase Manhattan Bank through the assistance of Howard M. Pack and Joseph Kahn, friends of Chamberlain. The bank agreed to lend only $4,000,000 on a production payment without recourse, $500,000 on the production mortgage, and $1,250,000 on a pipeline mortgage with recourse to Jett and Chamberlain. Since the total cash price to Gulf was $6,750,000 (the balance of the full purchase price was to be paid on a production basis), this left Jett and Chamberlain short by $1,000,000 in equity money and $500,000 in necessary working capital.
While Chamberlain and Jett were in the process of trying to obtain the additional financing, a dispute arose as to the extent and character of Sterling's interest in the deal as it then stood. Chamberlain had a trust agreement drawn up which provided that Sterling would have a 1/3 interest held in trust with Chamberlain as the trustee. True objected to Chamberlain as Sterling's trustee and a meeting was set up at the St. Regis Hotel in New York on April 8, 1959. At this meeting were Chamberlain, Jett, True, Albert B. Zink, a director and attorney for Sterling, and Raymond A. Corcoran, a lawyer representing Gulf, who insisted that Gulf's offer to sell would not be extended beyond the contract deadline of May 1, 1959.
During the meeting, heated words were exchanged between True and Chamberlain. True wanted Sterling to take title to its interest in its own name and Chamberlain insisted that because of Gulf's objection, that was impossible. True refused to allow Chamberlain to act as Sterling's trustee and threatened to sue Gulf to which Corcoran replied, "Go ahead." Zink then said something to the effect that perhaps the Chase Bank will have a different attitude about a law suit. At this point, Chamberlain ordered True and Zink out of his room and they left. Zink returned later that same evening and told Chamberlain that something could be worked out rather than "blow the deal".
The next day there was a meeting at the office of Waldron's attorney between Chamberlain, Jett, Zink, and Corcoran. At this meeting an agreement was reached whereby Sterling, through Zink as trustee, would get an interest in the deal, and True would not go to the bank and destroy the financial arrangements. On this same day, Zink got Jett to sell him a 2½% Interest in the transaction for which Zink later paid Jett $2,000. This little side deal was concluded without Sterling's knowledge or consent.
With the Sterling problem temporarily resolved, Jett and Chamberlain renewed their efforts to obtain the additional financing. Again, with the help of Pack and Kahn, the sum of $1,500,000 was borrowed from The Equity Corporation, secured *853 by a limited guarantee of Pack and Kahn and a second mortgage on all the assets being purchased from Gulf. Also, as part of this financing arrangement, Jett and Chamberlain were required to convey a 5% Interest to Pack and Kahn and a 20% Interest to The Equity Corporation in the producing and nonproducing leases, and a 5¾% interest to Pack and Kahn, and a 23% interest to The Equity Corporation in the gathering system. The Equity Corporation took title to its interest in the name of a wholly owned subsidiary, Cornwall Trading Corporation. By a supplemental agreement between Jett, Chamberlain, Pack, Kahn, and Cornwall, it was agreed that when payments became due to Sterling, the interests of Pack, Kahn, and Cornwall would be subject thereto but at the same time proportionately increased so that their net take would remain the same.
The acquisition from Gulf was concluded on May 1, 1959. The agreement reached between Chamberlain, Jett, and Sterling bears that same date although it was not completely executed and delivered in its final form until August 18, 1959. Sterling qualified to do business as a foreign corporation in Alabama on August 6, 1959.
This contract (The Sterling Agreement), the basis of this litigation, is a long and complex document. By its terms the parties annulled, cancelled, and terminated all agreements of every sort and kind previously made and entered into between them; Sterling transferred to Jett and Chamberlain all of its rights, interests, claims, and demands of every kind, character and description in return for which Jett and Chamberlain agreed to grant and convey to Zink, as individual trustee for Sterling, certain interests in the Citronelle properties upon the occurrence of four events:
When these four events had occurred, Zink, as trustee for Sterling, would receive:
Jett and Chamberlain took over the operation of the Citronelle properties as of May 1, 1959. During that first summer production declined sharply, the bank commitments went into default, and the possibility of foreclosure was an ever present threat. It became necessary to invest large sums of money in reworking the wells and effecting a secondary recovery. Sterling did not contribute to this work-over program in any way. Following the extensive work-over program, production increased substantially and the venture ultimately became a financial success.
By the year 1963, most of the bank commitments and all of Gulf's production payment had been fully paid and satisfied. However, Sterling had yet to receive a cash payment representing its interests in the properties. Another dispute arose between Sterling and Chamberlain over the amount due Sterling and this conflict resulted in the litigation now before us.
The parties in the first suit, filed March 6, 1963, were Jett and Chamberlain as plaintiffs and Sterling and its individual trustees (Zink and Herbert C. Smyth) as defendants (Jett-Chamberlain action). Diversity necessary for removal to federal court existed on the face of the pleadings. After removal by Sterling, and while motions for leave to join Pack, Kahn, and others as indispensable parties were under submission before the federal court, the second suit was filed July 3, 1963, by Pack, Kahn, and George H. Jett Drilling Company as plaintiffs against all other parties in interest, primarily Jett, Chamberlain and Sterling Oil (Pack-Kahn action), seeking essentially the same relief as sought by the plaintiffs in the Jett-Chamberlain action. Although apparently absent of complete diversity, Sterling Oil removed the Pack-Kahn action alleging fraudulent joinder of parties. In anticipation of the granting of the motion to add parties plaintiff in the Jett-Chamberlain action and on the ground of lack of diversity in the Pack-Kahn action, Jett and Chamberlain filed respective motions to remand as to each of the first *855 two suits. The third suit was filed by Sterling in federal court on November 22, 1963, seeking specific performance of the contract favorable to Sterling, and for an accounting.
On January 6, 1964, the federal district court denied the petitions to intervene and the motions to remand, which rulings were appealed by Jett, Chamberlain, Pack, Kahn, and Cornwall (Chamberlain's group). For the reasons set forth in its consolidated opinion, despite a "disclaimer" filed by Sterling as to any right of action against Pack, Kahn, and Cornwall, the U.S. Fifth Circuit Court of Appeals affirmed as to the Jett-Chamberlain action (holding that none of the non-party petitioners was an indispensable party), and reversed as to the Pack-Kahn action (holding that there was no clear and persuasive evidence of fraud inherent in the bringing of that action while motions to intervene in the Jett-Chamberlain action were still pending). This left the first suit (Jett-Chamberlain action) in the federal forum and remanded the second suit (Pack-Kahn action) to the state forum. The Fifth Circuit Court's opinion, reported in 362 F.2d 723 at 730, concluded (first Jett v. Zink appeal, 1966):
On November 3, 1966, the federal district court in the Jett-Chamberlain action granted Sterling's Motion for Summary Judgment and found the Sterling Agreement to be a "valid, enforceable and subsisting agreement", which order was supplemented on November 15, 1966, making clear that its November 3 partial summary judgment was limited in its scope to disposition of the issue of Sterling's qualifying to do business. The November 15 order continued:
Further, on March 11, 1971, the federal district court denied Sterling's motion, based on the partial summary judgment, to strike amendments by Jett and Chamberlain to their earlier complaint and answer to Sterling's cross claim, which amendments questioned the validity of the Sterling Agreement on additional grounds of fraud, misrepresentation, duress, and business compulsion.
In the second Jett v. Zink appeal, 474 F.2d 149 (Fifth Circuit, 1973), the court in chronologizing the events between the first and second appeals aptly observed:
"5. Sterling Oil also applied for prohibitory relief in the Alabama Supreme Court. After a hearing on April 30, 1971, that application was denied on May 3, 1971.
"6. Sterling Oil later amended its Notice of Appeal to include the district court's order of July 14, 1971, which granted a stay of the federal proceedings.
"7. The federal action filed by Sterling Oil had been consolidated with the Jett-Chamberlain action for trial and was included within the scope of the district court's order granting summary judgment." [Brackets supplied.]
In upholding the district courtdenying injunctive relief against the state court suit (Pack-Kahn action) and giving res judicata effect to the state court decreethe Fifth Circuit Court's opinion quoted from its earlier holding in 362 F.2d at 729-730:
The opinion thus concluded:
". . .
This leaves the instant appeal (Pack-Kahn action) as the only litigation remaining between the parties.
This cause is before the Court on the appeal of Sterling and certain named trustees, and the cross appeal of the Chamberlain group, from a final decree of the Circuit Court of Mobile County, Alabama, in equity sitting, entered November 29, 1971.
The original bill of complaint for declaratory judgment filed by Pack, Kahn and George H. Jett Drilling Company, Inc., sought to have the Sterling Agreement held invalid and unenforceable on the ground that Sterling was not qualified to do business in Alabama at the time the contract was made, and praying in the alternative that, if valid, the court would interpret the provisions of the agreement favorable to the complainants.
The next four years were consumed by an intense battle between the parties over the forum dispute as heretofore outlined.
On June 8, 1967, Chamberlain filed his answer and cross bill, in general admitting and adopting the allegations of the original bill. However, Chamberlain asserted for the first time, as further grounds for the invalidity and unenforceability of the Sterling Agreement, the allegations that the agreement was obtained by reason of fraud, misrepresentation, duress, and business compulsion practiced upon Jett and Chamberlain by Sterling, its officers and attorneys. Additionally, Chamberlain alleged that the operative provisions of the Sterling Agreement are so vague and indefinite as to make the document incapable of specific performance.
On May 3, 1968, Sterling filed its plea in abatement (later amended) alleging the prior pendency of the Jett-Chamberlain action, the Sterling counterclaim therein, and the pendency of the Sterling action. On March 8, 1971, the circuit court ordered the case set for trial on May 4, 1971. In the meantime, the trial court sustained demurrers to Sterling's pleas in abatement, which ruling is assigned as error.
On May 3, 1971, the court entered its pretrial order, which provided, inter alia:
On June 18, 1971, Jett amended his answer to add a cross-claim against Zink, Smyth and Sterling. Jett's cross-claim in part averred:
On July 10, 1971, after hearing the testimony of Chamberlain, Jett and Corcoran, by interlocutory order, the circuit court found:
On August 2, 1971, the appellees filed a motion to set aside the decree of July 10, 1971.
On November 4, 1971, after several weeks of additional testimony, the court entered a final decree ordering that "The interlocutory decree entered on July 10, 1971, is hereby withdrawn, set aside, and cancelled", and finding the Sterling Agreement to be "invalid, unenforceable, and without legal force or effect". No ground or grounds upon which the trial court based its finding of invalidity are set forth, but the court further found ". . . that even though Sterling had unclean hands as a result of its improper actions both prior to the making of the Sterling Agreement and after the making of said agreement, that nonetheless Sterling did make contributions to the overall project *859 [and] that Sterling is entitled to a finder's fee in a reasonable amount for having introduced Waldron to Chamberlain". The court also found that "Zink wrongfully extracted a 2½% interest in the Gulf-Jett-Chamberlain transaction from Jett for a nominal consideration of $2,000.00, and that he sold this interest for $141,921.73 on April 8, 1964 . . . [and] that Zink's wrongful actions were ratified by Sterling when it required Zink to pay to it $140,000.00 of the amount received by Zink in the sale of said 2½% interest, and that Jett is entitled to recover from Sterling the $140,000.00 which was paid to Sterling by Zink, plus interest thereon from June 27, 1967. . . ."
On November 29, 1971, the court entered a further final decree, awarding Sterling a finder's fee of $35,000.00 and awarding Sterling an additional sum of $250,000.00 as "reasonable compensation due Sterling . . . for all of its services in the matter in respect to which this litigation arose other than services rendered Chamberlain as a finder," with interest thereon totaling $500,175.00 apportioned to their respective interests among the Chamberlain group, who cross appeal asserting the money judgment in favor of Sterling as error.
Appellees (Chamberlain group), in support of the trial court's final decree (except for the money judgment in favor of Sterling), contend that the Sterling Agreement is invalid and unenforceable because:
Appellants (Sterling and its trustees) attack the final decree of the trial court by specific assignments of error, which, when analyzed and classified, may be stated as follows:
The Chamberlain group, cross appellants, contend:
The first and most obvious effect of the federal litigation, and its resultant judgments, is the elimination of all but the instant case (Pack-Kahn action). Less obvious, perhaps, but no less significant are at least two additional legal results which we believe are depositive of several of the contentions now before us:
(1) The Issue of Abatement. Appellants contend that the prior pendency in federal court of the Jett-Chamberlain action abates this case. Absent the federal court decrees, we would view this contention quite seriously even in the face of "additional parties" in the Pack-Kahn action. See Foreman v. Smith, 272 Ala. 624, 133 So. 2d 497 (1961); and Ex Parte Dunlap, 209 Ala. 453, 96 So. 441 (1923). We think it is clear, however, that the federal litigation has settled this issue adversely to the appellants.
There is no doubt, as we now review the history of the federal litigation, that the federal court treated the parties plaintiff in this action (Pack, Kahn, and Jett Drilling Co.) as additional parties. Although, as we have seen, the first Jett v. Zink appeal disallowed Pack, Kahn, and Cornwall as "indispensable parties" in the Jett-Chamberlain action, it ordered the Pack-Kahn action remanded on the basis that the plaintiffs therein were legally entitled to prosecute their action in state court. Commenting on Sterling's claim of fraudulent joinder, the opinion in the second Jett v. Zink appeal concluded:
The district court then stayed the federal action to allow the state action to proceed.
Moreover, practical considerations now dictate that we not hindsight the issue of "additional parties"on which the larger issue of abatement reststo a contrary result, and thus abate the only remaining litigation between the parties. Fegaro v. South Central Bell, 287 Ala. 407, 252 So. 2d 66 (1971). As to abatement generally, see Logan v. O'Barr, 271 Ala. 94, 122 So. 2d 376 (1960); see also Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. 412 (1939); and Strother v. McCord, 222 Ala. 450, 132 So. 717 (1931).
(2) The Issue of Res Judicata. The above holding adverse to the appellants on the issue of abatement does not of itself dispose of appellants' other contention that the trial court was bound to give res judicata effect to the partial summary judgment of the federal court on the issue of Sterling's qualifying to do business. Kline v. Burke Construction Co., 260 U.S. 226, 43 S. Ct. 79, 67 L. Ed. 226 (1922).
*861 The legal test, of course, is the finality vel non of such judgment. While it is true that a federal summary judgment is interlocutory to the extent that it may be revoked or amended any time prior to final judgment (Coffman v. Federal Laboratories, Inc., 171 F.2d 94 (3rd Cir., 1948)), it is also true that such judgment, contrary to our state practice, may be an appealable order under the circumstances here pertaining.[3]
We have been cited to no persuasive authority, and we have found none, on either side of this issue. We believe the appealable nature of such ordergiven the other prerequisitesis the controlling factor; and we, therefore, hold that the principle of comity requires that we give res judicata effect to the judgment of the federal court, applying Alabama substantive law, holding on its merits that the Sterling Agreement is not void for failure of Sterling to qualify as a foreign corporation in Alabama at the time of the execution of the contract, which judgment was neither revoked, amended, nor reversed on appeal. See Watson v. Mobile & O.R. Co., 233 Ala. 690, 173 So. 43 (1937).
The fact that this was a partial summary judgment is of no moment since the word "partial" refers only to a limitation of the issues within the purview of such order and not to the quality of the judgment as to the issue so adjudicated. See Biggins v. Oltmer Iron Works, 154 F.2d 214, (7th Cir., 1946). Likewise, the subsequent dismissal of the Jett-Chamberlain actionconsolidated with the Sterling actiondoes not alter this result. Indeed, the Fifth Circuit Court's opinion (the second Jett v. Zink appeal), affirming the district court's dismissal on the principle of res judicata of the state court decree in this cause, grounded its decision, in part, on an agreement of the parties that, in the event the federal district court stayed the trial of the Jett-Chamberlain action, the state court action would proceed on no "new" issues, the only "old" issue being Sterling's qualifying to do business.[4]
Moreover, for this Court to now hold otherwise as to either of the issues of abatement or res judicata would be tantamount to a restructuring by this Court of the status of the controversy at the time of the commencement of this trial, which status had been fashioned and tailored by the parties through the federal litigation; and, at this late hour, we are unwilling to cut the pattern to fit the cloth.[5]
While economic duress is a relatively new legal doctrine, and this Court apparently has not heretofore expressly applied the doctrine in the context of business compulsion, the basic concepts of duress and undue influencethe ancestor of its modern progenyhave long been recognized by our cases.[6] In view of the conclusion we hereafter reach with respect to ratification, we pretermit an extended discussion of the doctrine of economic duress and business compulsion.[7]
If any such "fraud" occurred, it had to be during the St. Regis Hotel incident when the parties got involved in a disagreement over whether Sterling was to take its interest in its own name or in Chamberlain's name as trustee. Otherwise stated, the argument centered around the mechanics by which Sterling's interests were to be held. A more classical factual case for the application of economic duress might have existed had Chamberlain and Jett rejected Sterling's claim for any interest whatsoever in the transaction; and Sterling had reacted by threatening to "blow the deal" between Jett and Chamberlain on the one hand and Gulf on the other by disclosing to the Chase Bank the threat of litigation. Instead, the facts disclose that the bargaining between the parties following the dispute actually resulted in more of a compromise on the part of Sterling than on the part of Jett and Chamberlain. Sterling ultimately agreed to take less than 1/3 interest in the total transaction and agreed to hold such interest through a trustee (Zink instead of Chamberlain).
Nevertheless, Chamberlain's group contends that the trial court could have found that the total default on the part of Sterling to assist in any of the financial arrangements, having already been rejected by Gulf as the operating company of the Citronelle oil field, constituted a termination of any joint adventure contract; and that Jett and Chamberlain were no longer under obligation to give up a 1/3 interest to Sterling; and that, under the circumstances, Sterling wrongfully coerced Jett and Chamberlain into an arrangement beneficial to Sterling out of proposition to its true interest.
Assuming, arguendo, that we could uphold the trial court's finding of invalidity on the ground of economic duress, we are yet faced with the appellants' contention of ratification. The issue of economic duress as a defense to the validity of the Sterling Agreement was asserted eight years after the contract and four years after the litigation began. The only conceivable basis for excusing the long delay in asserting the economic duress contention would be the continuation of the fraud.[8] All the evidence is to the contrary. The very parties with whom Sterling was allegedly dealing in its perpetration of the threats and coercive acts (Equity, Chase Bank, and Gulf) were made fully aware of Sterling's interest even before the Sterling Agreement was finalized, and supplemental agreements were entered into with each of the financial institutions involved regulating their respective interests.
Chamberlain's group contends that the threat of litigation by Sterling, while foreclosure was imminent during the lean years of 1959, 1960, and 1961, served as a circumstance which continued the coercive acts and excused their failure to repudiate the contract earlier. We find no competent *863 testimony to support any factual basis for this contention. As early as October, 1960, and again in January, 1961, it was Chamberlain who specifically threatened to file a bill for declaratory judgment against Sterling relating to differences of interpretation as to Sterling's interest in the operating leases (§ 6 of the Sterling Agreement). Chamberlain's group also contends that the delay between the filing of the Pack-Kahn action in 1963, to the date of his cross bill asserting economic duress for the first time in 1967, is excused on the basis of the time lapse occasioned by the procedural maneuvering over the forum in the federal courts; and that his cross bill was seasonably filed following the remand after the first Jett v. Zink appeal.
In the same vein, Chamberlain contends further that his cross bill alleging incapability of performance for vagueness stands on the same footing as his claim of invalidity on the grounds of economic duress and violation of the Rule Against Perpetuities insofar as the timeliness of asserting such contentions. There is a distinction, however, in that no legal onus of immediacy rested upon Chamberlain with respect to his other contentions claiming unenforceability. Such is not the case as to his contention of invalidity on the ground of economic duress, and this for the reason that, under the facts here presented, the doctrine of ratification operates only in the context of this latter contention.[9]
Although the law of economic duress has not been fully developed by our case law, this is nonetheless a species of fraud; and it is well established by our cases that one who would void a contract for fraud must assert such claim at the earliest opportunity. Dusenberry v. First National Bank of Birmingham, 271 Ala. 207, 122 So. 2d 716 (1960); Southern States Fire & Casualty Ins. Co. v. De Long, 178 Ala. 110, 59 So. 61 (1912); Royal v. Goss, 154 Ala. 117, 45 So. 231 (1907). While no arbitrary rule exists for such determination, the record taken as a wholeviewed most favorably to Chamberlainforces us to conclude that the time of filing of the Jett-Chamberlain suit (the first of the three actions) was the last opportunity to seasonably assert any claim for fraud in avoidance of the contract.
The doctrine of unclean hands, while applicable to a defendant seeking affirmative relief (Malone v. State ex rel. Gallion, 285 Ala. 493, 234 So. 2d 32 (1970)), had no field of operation under the pleadings and proof here presented for two reasons:
First, it is the Chamberlain group who seek to invoke the maxim and it is they who seek the relief of equity to cancel the contract with Sterling and reap its full benefits. Sterling's pleading, styled a "Cross Bill", is but an answer, praying for a finding of validity of the agreementthe same relief to which it would have been entitled, if any, under an answer to the original bill and Chamberlain's cross bill.
Second, the doctrine of unclean hands cannot be applied in the context of nebulous speculation or vague generalities; but rather it finds expression in specific acts of willful misconduct which is morally reprehensible as to known facts. Weaver v. Pool, 249 Ala. 644, 32 So. 2d 765 (1947). This is not to say that it was incumbent upon the trial court to specify the particular conduct, but its finding must be based upon competent evidence of specific acts or course of conduct reproved by the doctrine.
*864 The only claim of unclean hands, which finds any competent evidentiary support, is contained in the context of appellees' contention of fraud in the form of economic duress. As we have already observed, the "economic duress" principle is at best of doubtful application; but, again, assuming the strongest possible presumptions in favor of appellees' contention, we, nevertheless, are committed to the proposition that the "unclean hands" doctrine will not be applied contrary to the rules of equity jurisprudence. Weaver v. Pool, supra.
In other words, the operative legal incidents of the principle of economic duress, including ratification and acquiescence, cannot be curtainedand thereby rendered inoperativesimply by calling such species of fraud by another nameunclean hands. When these rules are applied to the case at bar, to hold otherwise would be to effectively eliminate the principle of ratification in the name of "unclean hands", where the facts disclose that the contract cannot be invalidated on the ground of fraud due to its ratification as a matter of law.
The "Rule Against Perpetuities" defense was injected into the litigation by amendments filed by the Chamberlain group after the first six weeks of trial had been concluded. While not procedurally fatal, this contention seems almost too void of substance to merit our attention. Chamberlain refused to execute and deliver the Sterling Agreement until the trust agreement between Sterling and its trustee, Zink, the exact terms of which were dictated by Chamberlain, had been fully executed, made a part of, and incorporated into the Sterling Agreement. This trust agreement provides inter alia:
If ever an agreement was purposefully, and artfully, drafted to avoid the operation of the Rule Against Perpetuities, this was such a document; and, in view of its express language, any discussion of the various aspects of the rule would be merely an academic exercise and add nothing to the body of the law. See Crawford v. Carlisle, 206 Ala. 379, 89 So. 565 (1921).
After allowing all reasonable presumptions in favor of the correctness of the ruling of the trial court, we are constrained to say that the judgment is without any competent supporting testimony and cannot be affirmed as to any of the appellees' first four contentions heretofore discussed. Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89 (1948); Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So. 2d 492 (1942).
We now proceed to address ourselves to the last contention made by appellees that the provisions of the agreement purporting to give interests to Sterling are vague, indefinite and uncertain.
It is a cardinal principle that, where testimony is taken ore tenus, the findings of facts made and entered by the trial court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust. Renfroe v. Weaver, 285 Ala. 1, 228 So. 2d 764 (1969). Where the trial judge's ruling is grounded on no specific ground, his judgment must be sustained on appeal if any good ground is presented. Martin v. Birmingham Southern R. Co., 250 Ala. 583, 35 So. 2d 339 (1948).
Upon review of the record in this cause, we are of the opinion that there was ample evidence to support a conclusion by *865 the trial judge that the agreement was invalid and unenforceable on the ground that certain essential provisions in the agreement were vague and uncertain.
First, it appears clear that the issue of the uncertainty of the agreement was properly before the trial court and was, in fact, tried by the parties. Both the original complaint as amended and Chamberlain's cross-complaint contain the following allegations:
And in their prayer for relief, appellees contend that:
Appellant Sterling expressly joined issue with appellees on the question of uncertainty in its "Additional Defensive Pleading." In its answer, Sterling admitted that the agreement did not contain specific agreement on the three items enumerated in the complaint, but alleged in defense that the agreement was subject to both the Federal Arbitration Act, 9 U.S.C. § 1, and to Chapter 19, Arbitration and Award, of Title 7, Code of Alabama 1940 (Recompiled 1958), §§ 829-844.
It appears that the trial court did reach the question of the uncertainty of the agreement. The pre-trial order of May 3, 1971 states that:
In the interlocutory order of July 10, 1971, ending the first phase of the trial, the trial judge indicated that the court would then proceed to a determination of "all controversies between the parties with respect to the meaning and enforceability vel non of the specific provisions of the Sterling Agreement."
After a full trial, which included extensive testimony on the issue of the uncertainty of certain provisions of the agreement, the trial judge issued a final decree stating:
We, therefore, conclude that the issue of uncertainty was considered by the trial court. Moreover, we are convinced that there was ample evidence before the trial court to support a conclusion that essential terms of the agreement were too vague and uncertain to constitute a binding contract.
*866 Chamberlain testified that a "supplemental agreement" defining certain terms and setting certain production and price figures would be necessary to give any meaning to the agreement; that he "suspected" even at the time of entering into the agreement that there was no such thing as an ascertainable override equal in value to a 25% working interest absent further agreement of the parties on a number of other factors; that the agreement was "something substantially less than an agreement"; and, that paragraph 7(c) was "so indefinite that it is unenforceable." Raymond Corcoran testified that he had seen other documents attempting to give similar overriding royalties, but that they usually have a good bit more definition of terms for computing same. B. P. Huddleston, a consulting petroleum engineer, testified that he could not convert the 25% working interest into an overriding royalty interest without information from the parties with regard to the definition of "value," the "starting date," instructions on "type of reserves," instructions on escalation of the future price of crude oil, relationship of the Sterling override to the Gulf override, and probably other items. William Horner, another petroleum engineer, similarly testified as to various factors which were needed to make the conversion but which were not specified in the agreement, characterizing an overriding royalty interest without specification of such factors "a leap into fantasy."
Even though appellant Sterling produced expert witnesses who testified that they could determine the interest specified by paragraph 6, there was sufficient evidence to support a conclusion by the trial judge that the meaning of paragraph 6 was so uncertain as to be invalid. Furthermore, contrary to Sterling's contentions, such uncertainty cannot be cured by arbitration. While the agreement itself made provision for arbitrators, it is wellsettled law in this state that courts cannot specifically enforce an agreement to submit a controversy to arbitration. Title 9, § 55, Code of Alabama 1940 (Recompiled 1958).
We, therefore, conclude that the judgment of the trial court declaring the Sterling agreement invalid and unenforceable is due to be affirmed.
The trial court found that Zink had wrongfully extracted from Jett a 2½% interest in the transaction for a nominal consideration of $2,000. This occurred in April of 1959. In 1964, after the parties were already in litigation, Jett repurchased this 2½% interest from Zink for $141,921.73. Sterling learned of this entire side deal for the first time through an amended pleading by Jett seeking a return of his money. Zink subsequently, under pressure of disbarment from Sterling, paid $140,000 of this resale price to Sterling. By further amendment, Jett then claimed a refund of the $140,000 from Sterling. The court found that Zink's wrongful actions (the original extortion) were ratified by Sterling when it required Zink to pay to it $140,000 and decreed that Sterling pay to Jett $140,000 with interest from June 27, 1967the date of its receipt of its money from Zink.
The immediate facts leading up to the repurchase of this 2½% interest by Jett from Sterling show that Chamberlain purchased Jett's interest in 1964, and, as a condition to this purchase, he required Jett to reacquire for Chamberlain Zink's 2½% interest. The purchase price was arrived at by simply applying the same ratio of value used by Chamberlain in purchasing Jett's interest.
These facts render impossible our efforts to uphold the lower court's decree returning to Jett from Sterling the $140,000 sum. Indeed, appellees do not claim that there was any wrongful action connected with the repurchase of the 2½% interest by Jett from Zink; and the evidence does not contain even a scintilla that the resale transaction *867 between Jett and Zink was tainted with any coercion, pressure, misrepresentation, or other wrongful act on the part of Zink at that time. All of the parties concede that Sterling knew nothing of this side deal between Zink and Jett, including the repurchase, until well after the fact.
Conceivably, if Zink had sold this 2½% interest to a third party and Sterling had made Zink pay it the purchase price therefor, or if Jett had not repurchased from Zink and had included in his cross claim a prayer for rescission, a different situation might be presented in favor of the trial court's holding. However, the development of our case law on the principle of ratification compels the conclusion that one who treats the contract as in force through express affirmance by word or deed, after full knowledge of the alleged fraud, defeats the right of rescission. Where the parties, as here, were already in litigation and Jett voluntarily paid Zink approximately $142,000 for the repurchase of the 2½% interest, ratification of the initial wrongful act of extracting the 2½% interest unquestionably results as a matter of law. Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So. 2d 23 (1963); Stephenson v. Allison, 123 Ala. 439, 26 So. 290 (1899).[10]
Chamberlain's group cross assigns error in the awarding of a money judgment in favor of Sterling for a "finders fee" and "reasonable compensation" for services rendered in the Gulf-Jett-Chamberlain transaction. Such award, argues the cross appellants, is inconsistent with the Court's finding of unclean hands. Our conclusion, heretofore stated, as to the contention of unclean hands disposes of this cross assignment of error. After careful consideration of each of appellees' cross assignments of error, we find no error to reverse on cross appeal.
We summarize our conclusions as follows:
1. Sterling's plea in abatement based upon the prior pendency of the action in federal court was properly denied.
2. The federal court decree of November 3, 1966, granting Sterling's motion for summary judgment on the issue of Sterling's qualifying to do business, is res judicata in the instant appeal.
3. There is insufficient evidence in the record to support the judgment of the trial court on the grounds of economic duress, unclean hands and the Rule Against Perpetuities.
4. There is sufficient evidence in the record to uphold the judgment of the trial court in declaring the Sterling Agreement invalid and unenforceable on the ground of vagueness, indefiniteness and uncertainty of certain essential provisions of § 6.
5. The trial court correctly granted Sterling a finder's fee.
6. The trial court erred in awarding to Jett the sum of $140,000.
It is, therefore, that we conclude that the decree of the trial court should be affirmed insofar as it adjudges the Sterling Agreement to be invalid and unenforceable and that the decree should be reversed insofar as it awards Jett the sum of $140,000. Judgment is here rendered accordingly.
Affirmed in part. Reversed and rendered in part.
MERRILL, BLOODWORTH, and JONES, JJ., concur.
*868 COLEMAN and HARWOOD, JJ., concur in the result.
MADDOX, J., concurs specially.
HEFLIN, C.J., and McCALL and FAULKNER, JJ., recused themselves.
MADDOX, Justice (concurring specially).
I concur that the trial court had before it sufficient evidence upon which to find the Sterling Agreement was invalid and unenforceable because it was vague and uncertain. Therefore, I concur fully in this portion of the opinion. Nevertheless, I also think that the court's finding that the agreement was invalid and unenforceable could be sustained on the ground that Sterling was guilty of "unclean hands."
Implicit, if not explicit, in the final decree of the court is a determination that Sterling was guilty of "unclean hands" both prior to the execution of the Sterling Agreement and after the execution of the Sterling Agreement. I think there is sufficient evidence to support this finding.
"Clean hands" refers to willful misconduct. Equity will consider the conduct of the adversary, the requirements of public policy and the relation of the conduct to the subject matter of the suit. Weaver v. Pool, 249 Ala. 644, 32 So. 2d 765 (1947).
Sterling's principal argument is that it entered into a joint venture with Chamberlain to acquire the Gulf properties. If Sterling was a joint adventurer with Chamberlain and Jett in the Gulf acquisitionas it argues it wasthe general rule is that joint adventurers owe one another the duty to observe the utmost good faith in all that relates to their common interest, from the beginning of the negotiations for the formation of the enterprise to its termination. See Van Heuvel v. Roberts, 221 Ala. 83, 127 So. 506 (1930); Saunders v. McDonough, 191 Ala. 119, 67 So. 591 (1914); 48 C.J.S. Joint Adventures § 5, p. 824.
The trial court could have found from the evidence that Sterling failed to exercise good faith, when in April, 1959, Sterling, after having failed to secure the financing for the Gulf acquisition and being aware that Gulf would not sell if Sterling held an operating interest, threatened to "blow the deal" by contacting the financiers from which Chamberlain had commitments. There was substantial evidence that Sterling participated in litigation against Chamberlain, which litigation, if successful, would have diminished Sterling's profits in the properties in which it now claims an interest. Sterling contends that its failure to carry out its obligations would not terminate its right to share in the profits of the joint venture, citing Saunders v. McDonough, 191 Ala. 119, 67 So. 591 (1914). Assuming Sterling correctly construes Saunders, its argument would be applicable only if the court had refused to give Sterling anything for its contribution to the joint adventure. The trial court gave Sterling a finder's fee and its expenses, plus interest. I cannot say that the amount awarded is plainly and palpably wrong. In fact, I think there was sufficient evidence for the trial court to conclude that at the time of the Gulf acquisition, Sterling had contributed its services as a finder, and as a guarantor of the $1,500,000 Waldron obligation (Sterling never became obligated), and other services in connection with the negotiations leading up to the acquisition. The decree attempts to make Sterling whole for this contribution, in my opinion.
Consequently, I concur in the affirmance of the judgment on the cross-appeal and reject the cross-appellants' arguments that Sterling should get nothing because the court found it to have "unclean hands," since I believe the "clean hands" doctrine has its limitations.
In Weaver v. Pool, supra, this Court commented on the limitation of the "unclean hands" doctrine, as follows:
I also concur in the result which reverses the judgment of the trial court awarding Jett $140,000 against Sterling.
[1] This paraphrase of Sterling's interest in the producing leases has been overly simplified to facilitate a manageable recitation of the facts; but due to a contention of invalidity of this provision on grounds of vagueness and uncertaintyand our later treatment of this issuewe set forth in haec verba the pertinent language of this section of the contract:
"6. . . . Tett and Chamberlain will transfer and assign to the individual trustee for Sterling an overriding royalty interest in each lease then in effect which was a Producing Lease or a Producing Property within the definitions contained in this Agreement, the percentage of such overriding royalty to be computed as hereinafter provided, separately as to each such Producing Lease, so that the overriding royalty shall be equal in value, as of the date of said transfer and assignment, to the value on that date of a 25 per cent working interest in each of such Producing Leases acquired from Gulf Oil by Jett and Chamberlain at Closing.
"The parties hereto agree that promptly when all of the conditions set forth in subdivisions `(a)', `(b)', `(c)' and `(d)' above shall have been fully complied with, or prior thereto, each of them will nominate in writing a petroleum engineer or engineering firm, which is to say, Jett and Chamberlain, acting together, will nominate one petroleum engineer or engineering firm, and the individual trustee for Sterling will nominate another engineer or engineering firm, each engineer to be authorized, directed and paid by the one who nominated him, to make such studies, examinations and evaluations necessary to equate the percentage of working interest set forth above to the overriding royalty interest hereinabove in this paragraph provided for.
"The petroleum engineer or engineering firm to selected shall be authorized by the person nominating him to agree on behalf of the person nominating him on that percentage of overriding royalty interest which would be equal in value to the percentage of working interest, as contemplated by this Agreement; further authorizing such engineer to agree, in the event that the two engineers or firms cannot agree on such an evaluation, on the appointment of a third engineer, and that thereafter the majority of the three engineers or engineering firms thus appointed shall have the right to fix such percentage of overriding royalty interest, the parties to be bound thereby.
"Jett and Chamberlain agree that in the event they shall voluntarily amend the terms of the Production Loan so as to delay or extend the time for final payment thereof beyond the time when the same would have been fully paid if not changed from the form and content in which it existed at the date of Closing with Gulf Oil, unless such change or amendments become necessary for reasons beyond their control, or because the Producing Leases did not produce sufficient income to the operators to operate said leases, then in such event, when the engineers fix the amount of the overriding royalty, as hereinabove provided for, to be assigned to the trustee for Sterling, it shall be done so as to pay Sterling as if it had been made effective retroactive to the date when, but for such delays in the payment of such Production Loan, the application of such overriding royalty would have become effective."
[2] It is significant to note (for purposes of our later consideration of res judicata) that, at the time of such order, the only ground of contest of validity was the very issue adjudicated, i.e., Sterling's qualifying to do business.
[3] Care should be exercised not to construe this statement as holding that every federal summary judgment will be accorded res judicata effect by this Court; the finality for such purpose is wholly dependent upon the criteria for appealability set forth in Title 28, § 1291, U.S.Code, Annotated (Note 146). As to summary judgments generally, see Wright, Federal Practice and Procedure, § 2737.
[4] Note the reference made to this agreement of the parties in the last quoted paragraph of Jett v. Zink (second appeal) set out above at the conclusion of our discussion of the "Battle Over the Forum". Although we have grounded our holding as to this issue on the doctrine of res judicata, the principle of estoppel based on the agreement of the parties to proceed on no "new" issues would likewise operate to force the same conclusion. See Davis v. Wakelee, 156 U.S. 680, 15 S. Ct. 555, 39 L. Ed. 578, 15 S. Ct. 555 (1895); Watt v. Lee, 238 Ala. 451, 191 So. 628 (1939).
[5] There is nothing in the record to indicate, nor do we have reason to suspect, that the trial court's reversal of its holding as to validity was grounded on the issue of Sterling's qualifying to do business. Indeed, the undisputed facts on their merits dictate a finding consistent with both the federal summary judgment and lower court's interlocutory order holding the agreement valid on this issue as a matter of law. Title 10, § 21(87), Code of Alabama 1940, as amended.
Furthermore, it was Chamberlain who employed legal counsel on behalf of Sterling for the express purpose of qualifying Sterling to do business in Alabama as a foreign corporation, and for the further purpose of handling the execution and delivery of the contract so as not to run afoul of this legal impediment.
[6] Juzan v. Toulmin, 9 Ala. 662, 44 Am.Dec. 448 (1846). See also later cases collected under 5 Ala.Dig., Contracts 95, and 96.
[7] Our somewhat summary handling of this issue is not to be construed as a rejection of the doctrine of economic duress and business compulsion; we simply defer fuller treatment to a more appropriate case.
[8] See Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P.2d 149 (1943); and Averill Machinery Co. v. Taylor, 70 Mont. 70, 223 P. 918 (1923).
[9] This is not to say that the doctrine of ratification (or acquiescence) has no field of operation generally as to a defense of vagueness. Certainly, parties may expressly or impliedly ratify, or by a course of conduct acquiesce in, otherwise vague language in a contract; but here, as we have seen, Chamberlain raised this issue of vagueness as to the operating leases provision in October, 1960.
[10] The ratification here referred to is not to be confused with the alleged ratification of Zink's conduct by Sterling, but rather this reference is to Jett's ratification of the original transaction. | November 15, 1973 |
8460cb01-6129-46d8-a954-d59d180c6273 | Phillips v. D. & J. ENTERPRISES, INC. | 288 So. 2d 137 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 137 (1973)
Jimmy N. PHILLIPS
v.
D. & J. ENTERPRISES, INC., a corporation.
SC 256.
Supreme Court of Alabama.
November 29, 1973.
Rehearing Denied January 24, 1974.
Harvey Elrod, Decatur, for appellant.
T. J. Carnes, Albertville, for appellee.
MERRILL, Justice.
This appeal is from an order denying appellant-defendant's petition for a rehearing *138 in an action at law under Tit. 7, § 279, Code 1940.
Plaintiff sued defendant for rent, and caused a writ of garnishment to issue to Aetna Insurance Company because the rented building had been destroyed by fire and the garnishee was supposed to be indebted to the defendant. The complaint and the writ of garnishment were filed on June 28, 1971.
On July 29, defendant filed a motion to quash service because the summons and complaint had been served, not on him, but on his wife. An amended complaint and the original complaint were properly served on defendant December 7, 1971. Some three days later, defendant delivered the properly served papers to the office of his attorneys.
On January 26, 1972, plaintiff took a judgment by default, and obtained a judgment for $13,300.00.
The petition for a rehearing under Tit. 7, § 279, was presented to the circuit judge on May 26, 1972. Section 279 provides:
The petition, evidence and arguments were heard on December 1, 1972 and the trial court, in a written opinion, denied the petition, citing Johnson v. Robertson, 284 Ala. 566, 226 So. 2d 627.
Appellant concedes in brief that the cases cited to overturn the holding of the trial court are not Alabama cases. Our cases support the judgment of the trial court.
The main thrust of appellant's argument is that this court should not apply Tit. 7, § 279, but should apply Rule 60(b), ARCP. This rule incorporates most of § 279 but some part of the wording is different. We cannot agree.
The judgment on the petition for rehearing was entered on December 1, 1972. The appeal to this court was taken on January 2, 1973. The transcript of the record was filed in this court on April 26, 1973. Appellant's briefs were filed on June 12 and appellee's briefs were filed on June 26, 1973.
Rule 86, ARCP, makes the effective date of the Alabama Rules of Civil Procedure effective on July 3, 1973 (six months from their adoption by this court on January 3, 1973).
The ARCP were designed to govern the procedure in trial courts. They were not in existence when the trial court decided this case or when the Circuit Court of Marshall County lost jurisdiction of the cause because of the appeal to this court. It would be unjust to reverse a trial court because he did not apply a rule or procedure which was not even in existence when the case was decided. The law applicable at that time was Tit. 7, § 279, and the trial court applied it in conformity with the decisions of this court where that statute has been construed and applied.
This court has held that no statute has any force until it becomes the law of the land, and that is on the day fixed for it to go into effect. Lee v. City of Decatur, 233 Ala. 411, 172 So. 284. The same rule would apply to a rule of court procedure.
Affirmed.
HEFLIN, C. J., and COLEMAN, HARWOOD, MADDOX and FAULKNER, JJ., concur. | November 29, 1973 |
08374be9-dd38-44ea-8c82-02ba242e51a8 | Holley v. SEABOARD AIR LINE RAILROAD COMPANY | 283 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 283 So. 2d 168 (1973)
Ruby Jo HOLLEY, as Adm'x of the Estate of Horace James Salser, Deceased
v.
SEABOARD AIR LINE RAILROAD COMPANY, a corp., et al.
SC 209.
Supreme Court of Alabama.
September 20, 1973.
Wallace & Ellis, Columbiana, Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellant.
Cabaniss, Johnston, Gardner & Clark and Drayton T. Scott, and Fournier J. Gale, III, Birmingham, for Seaboard Air Line Railroad Co.
George S. Brown, Birmingham, for William C. Hatfield.
COLEMAN, Justice.
Plaintiff appeals from a judgment for defendants in action for wrongful death of plaintiff's intestate which allegedly resulted from the act of the defendant railroad in wrongfully maintaining "a barricade" in the vicinity of a place where the tracks of defendant railroad overpassed a public highway.
The action was brought against two defendants; namely, the defendant railroad *169 and one Hatfield who was driving an automobile in which plaintiff's intestate was riding at the time of his injury. Trial was by a jury and judgment was rendered in favor of both defendants. Hatfield asserts in brief that none of the assignments of error is based on anything the trial court did with respect to Hatfield. In her reply brief, plaintiff says Hatfield should have the judgment affirmed as to him.
Plaintiff's complaint contained five counts. The court sustained demurrer to Counts 1 and 3. Plaintiff withdrew Count 4. The court overruled demurrer to Counts 2 and 5, and trial was on those two counts. Defendants pleaded the general issue in short by consent with leave, etc.
The record on appeal does not contain any evidence or the court's oral charge.
The action of the court in sustaining demurrer to Count 3 is the only error relied on by plaintiff. The substance of the facts and other matters alleged in Count 3 is as follows:
Plaintiff claims damages for that plaintiff's intestate was a passenger for hire in a vehicle over which he had no direction or control;
Hatfield was driving the vehicle over a public road at a point where defendant railroad maintains an overpass over said public road;
defendant railroad was under a duty to construct and maintain the approaches to said overpass crossing in a reasonably safe condition for use of the public approaching the overpass on said road;
defendant railroad knew that, prior to the day of the injury, members of the public traveling said road by automobile would unintentionally and frequently veer said automobiles off the traveled portion of said road where it curves and travel onto property owned by defendant railroad;
defendant railroad "... constructed a barricade along its property line at a place where the property of the defendant Seaboard Air Line Railroad Company, a corporation abutted the property of the State of Alabama, on which said public road, Alabama Highway #25 was constructed, so as to prevent said automobiles from veering off said public road and onto the said property of the defendant, Seaboard Air Line Railroad Company, a corporation, at said curve along said approach, and plaintiff avers that" (Emphasis Supplied) the defendant railroad negligently breached its duty to maintain said approach in a reasonably safe condition for use of the general public in this that:
". . . It negligently failed to build a barricade that would be reasonable safe for members of the general public to strike without the likelihood of death or great bodily injury . . .," but negligently built a barricade "designed and installed at such a place and in such a fashion and manner that it would reasonably totally wreck such automobiles and kill or inflict great bodily harm to occupants of such automobiles . . .";
said automobile in which plaintiff's intestate was riding did "negligently veer off said public road at said place," and as a proximate consequence of said combined and concurring negligence of defendants, plaintiff's intestate was injured to such an extent that he died.
Count 2 on which the case was tried is substantially the same as Count 3, except that instead of alleging that the barricade was constructed by defendant railroad "along its property line" as in Count 3, plaintiff alleges in Count 2 that defendant railroad constructed a steel guard rail "immediately South of the said easternmost edge of the paved portion of said highway and on the right of way thereof." (Emphasis Supplied)
The demurrer to the complaint filed by defendant railroad contains forty-five separate and several grounds. In her original brief, appellant says:
Appellant does not, however, in her briefs, set out in its terms or substance any ground of demurrer.
After appellee, defendant railroad, had noted in brief that appellant had failed to mention any ground of demurrer assigned to Count 3, appellant says in reply brief that the respective grounds of demurrer (referring to them by number merely) were argued on certain pages of her original brief, but appellant does not set out or mention the substance of any ground of demurrer. A careful reading of appellant's briefs leaves us uninformed as to the substance of any one of the forty-five grounds of demurrer. Appellant argues at length with respect to the duty of a railroad to maintain a crossing, the duty of a defendant not to create a dangerous condition, and the duty of a landowner who creates artificial conditions on his land, but the argument is not directed to any of the grounds of demurrer. Authorities are cited, but no ground of demurrer is mentioned in connection with any of the cited authorities.
In Illinois Cent. R. Co. v. Posey, 212 Ala. 10, 101 So. 644, this court said:
"The defendant filed 14 pleas to these counts. Plea 1 was the general issue, and the court sustained demurrers of plaintiff to the other 13 pleas. These rulings of the court are assigned as errors. The appellant in his brief refers to these 13 rulings of the court, and these 13 assignments of error as follows:
"`Assignments of error 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17. These assignments of error have to do with the court's action in sustaining plaintiff's demurrers to defendant's pleas, which demurrers are on pages 19 and 20 of the transcript, and pleas on pages 16, 17, and 18.
"`In order not to unduly lengthen this brief, we will not fully argue these demurrers, but respectfully insist that the pleas setting up defendant's various defenses are well drawn, and in fact practically copied from decisions of this court, and that the demurrers should have been overruled.'
"These assignments of error must be treated as waived, because appellant failed to insist on them by argument. They were not elaborated in brief. What is written thereon above by appellant is not sufficient to require this court to discuss and analyze each of the 13 pleas to see if any one is sufficient under the demurrers. No argument is presented, and no authority is cited to show the court erred in any of the rulings. These assignments of error will be disregarded and not discussed. Ga. Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158; Republic I. & S. Co. v. Quinton, 194 Ala. 126, 69 So. 604; W. U. T. Co. v. Benson, 159 Ala. 254, 48 So. 712." (212 Ala. at 12, 101 So. at 646)
In Saliba v. Lunsford, 268 Ala. 307, 309, 106 So. 2d 176, 177, this court said:
"The assignment of error challenging the action of the trial court in sustaining demurrers to the original bill is not argued and hence will not be considered. Rickman v. Rickman, 266 Ala. 371, 96 So. 2d 674; Epperson v. Stacey, 266 Ala. 396, 96 So. 2d 750."
In other opinions, this court has said:
". . . The trial court sustained appellee's demurrer to the replication. This action of the trial court was assigned generally as error on this appeal, but was not substantially argued. Therefore, we deem that this alleged error was waived. Supreme Court Rule 9, Rules of Practice, Title 7, Code of Ala. 1940, as Amended, and annotations thereto." Melvin v. Franklin Life Ins. Co., 274 Ala. 671, 673, 151 So. 2d 238, 239.
"If any ground of a demurrer is well taken, the action of the trial court in sustaining the demurrer must be upheld. Prather v. Ray, 258 Ala. 106, 112, 61 So.2d *171 46; Ledbetter v. Frosty Morn Meats, 274 Ala. 491, 495, 150 So. 2d 365.
"By assigning for error that the court erred in sustaining the demurrer to Count Two-B, plaintiffs assert and, therefore, assume the burden of showing that all grounds of demurrer are bad, or, in other words, that no ground is a good ground. To support this burden, plaintiffs must argue each and every ground and demonstrate that each is bad. . . ." Butler v. Olshan, 280 Ala. 181, 189, 191 So. 2d 7, 15.
The Court of Civil Appeals recently said:
"The single assignment of error questions the trial court's ruling sustaining the demurrer.
". . .
". . . Appellant does not argue each and every ground of the demurrer that was filed against his complaint as required; in fact, appellant does not argue any ground of said demurrer. With the case being in this posture we have no alternative but to say that appellant waived his single assignment of error for the reason that he failed to argue each and every ground of the demurrer that was sustained as to his complaint." Freehling v. St. Paul and Marine Insurance Company, 49 Ala.App. 373, 272 So. 2d 582, 583.
Under the authorities, supra, the judgment appealed from must be affirmed.
Application of other rules of review requires the same result. As already noted, plaintiff alleged in Count 2 that the barrier or guard rail was "on the right of way" of the public road. In Count 3 plaintiff alleged that the barrier was "along its property line." As we understand plaintiff's argument, she says that Count 3 shows that the barrier was on land owned by the defendant railroad and differs from Count 2 with respect to the place where the barrier is allegedly located.
If plaintiff intended to allege in Count 3 that the barrier was on the land of the defendant railroad, plaintiff could easily have done so by using words to that effect. The word "along" is not exact or specific.
The following quotation is from Black's Law Dictionary, Fourth Edition, 1951:
If the barrier were on the highway right of way and extended in the direction of the property line, it could be said that the barrier was "along" the property line. If the barrier were on the land owned by defendant railroad and extended in the direction of the property line, it could also be said that the barrier was "along the property line." Whether on one side or the other, the barrier would be "along" the property line. As here used, the meaning of the word "along" is ambiguous with respect to location of the barrier; i. e., whether it is on the land of defendant railroad or on the highway right of way.
If Count 3 be construed to mean that the barrier was located on the highway right of way, then Count 3 makes the same case as Count 2, and error, if any, in sustaining demurrer to Count 3 would be harmless.
If Count 3 be construed to mean that the barrier was located on the land of defendant railroad, other rules of review come into consideration.
Supreme Court Rule 45 requires that no judgment be reversed ". . . for error as to any matter of pleading . . ." unless in the opinion of the reviewing court, after an examination of the entire cause it should appear that the error complained of has probably injuriously affected substantial rights of the parties.
This court has said:
This court has held that if it was error to sustain a demurrer to a count in a complaint, the error was harmless where, under the evidence, there could have been no recovery under the count to which demurrer was sustained. In an action by plaintiff to recover salary allegedly due him as a recorder of the City of Birmingham during a period of time after the city governing body had taken action purporting to abolish the office formerly held by plaintiff, this court, in considering the action of the trial court in sustaining demurrer to one count of the complaint, said:
In reviewing an appeal in action against the operator of a restaurant for serving plaintiff a centipede with his food, this court, with respect to a ruling sustaining demurrer to two counts of the complaint, said:
In Coker v. Louisville & N. R. Co., 245 Ala. 545, 18 So. 2d 84, this court said:
In Sharpe v. Western Ry. of Alabama, 234 Ala. 507, 175 So. 542, this court held that defendant's demurrer to Count 12 was erroneously sustained and for that error the judgment was reversed. On rehearing, appellee argued that a certain statement should be stricken from the opinion. The opinion was extended on rehearing. This court, to explain the reason for making the statement which appellee sought to have stricken, said:
The underscored portion of the last quotation states the rule applicable here. If there was no evidence to support Count 3, sustaining demurrer to Count 3 was error without injury.
As already stated, there is no evidence before us to support Count 3 or anything else. In order to reverse for sustaining demurrer to Count 3, we would be forced to presume that there was evidence to support Count 3.
As already stated, this court cannot presume the existence of facts or testimony as to which the record is silent and make it a ground for reversal.
If sustaining the demurrer to Count 3 was error, it was harmless on the record before us and the judgment appealed from is due to be affirmed.
Affirmed.
McCALL, J., concurs.
HEFLIN, C. J., and BLOODWORTH, and JONES, JJ., concur in result. | September 20, 1973 |
50c66df2-6d87-493c-9a44-ef8c69ab55d5 | Racine v. State | 286 So. 2d 896 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 896 (1973)
In re Charles Edward RACINE
v.
STATE of Alabama.
Ex parte Charles Edward Racine.
S.C. 587.
Supreme Court of Alabama.
November 29, 1973.
Thomas M. Haas and J. D. Quinlivan, Jr., Mobile, for appellant.
No brief for the State.
MERRILL, Justice.
The defendant was convicted of possessing marijuana and the judgment was affirmed by the Court of Criminal Appeals. His application for writ of certiorari was improvidently granted by this court on November 5, 1973. The writ is withdrawn and the application for writ of certiorari is denied.
The application for writ of certiorari charged that the opinion of the Court of Criminal Appeals dealing with the question of double jeopardy was contrary to cases in this court and followed in that court holding that when a plea of former jeopardy is regularly interposed, it is subject to either a demurrer or motion to strike, and if neither is interposed, issue must be taken on the plea; that a trial court is without authority to overrule such plea without giving the party interposing the plea an opportunity to submit his evidence in support thereof; and that, in the absence of a demurrer or motion to strike, the failure to submit the question to the jury is reversible error. This principle is stated and applied in Coburn v. State, 151 Ala. 100, 44 *897 So. 58; Evans v. State, 24 Ala.App. 390, 135 So. 647; Berland v. City of Birmingham, 36 Ala.App. 488, 60 So. 2d 377; Carter v. State, 43 Ala.App. 178, 184 So. 2d 847, and Harmon v. State, 48 Ala.App. 521, 266 So. 2d 325.
In his brief, defendant stated that there was no demurrer or motion to strike the plea of former jeopardy in the record. We accepted this statement to be true on preliminary examination and we granted the writ. Subsequently and after we had an opportunity to examine the record, we found that the statement in brief was correct. The complete discussion in the opinion of the Court of Criminal Appeals, 51 Ala.App. 484, 286 So. 2d 890 on this question follows:
Up to this point, it appeared that the judgment of the Court of Criminal Appeals would necessarily have to be reversed. But after an examination of the record, it became apparent that another principle, which had not been mentioned in the opinion of the Court of Criminal Appeals or in any brief, would have to be applied.
That principle is that the technical error in failing to submit an unattacked plea of former jeopardy to the jury is not reversible error where there was no injury to the defendant.
In Hughes v. State, 35 Ala. 351, the trial court refused to allow the defendant to file a plea of former jeopardy. In upholding the action of the trial court, it was said:
In Ex parte Spelce, 212 Ala. 559, 103 So. 705, the trial court committed a "technical error" in sustaining a demurrer to defendant's plea of former jeopardy, and this court held that the error was harmless because the records of the court showed that the plea could not be sustained and that the method of arriving at the result was not of controlling importance; but whether the result reached was correct.
In Mikell v. State, 242 Ala. 298, 5 So. 2d 825, the trial court erred in submitting the plea of autrefois acquit to the jury at the same time as the plea of the general issue instead of separately. This court said:
In Shiflett v. State, 37 Ala.App. 300, 67 So. 2d 284, a plea of former jeopardy was denied by the trial court and the Court of Appeals, per Harwood, J., said:
In Inman v. State, 39 Ala.App. 496, 104 So. 2d 448, the Court of Appeals said:
Some or all of the cases cited supra are followed in the recent cases of Kilpatrick v. State, 46 Ala.App. 290, 241 So. 2d 132, and Pratt v. State, 48 Ala.App. 341, 264 So. 2d 571.
Applying these principles to the instant case, we are constrained to hold that any failure to demur or move to strike the plea of autrefois acquit did not result in prejudice to the defendant. He had been arrested and charged with vagrancy. Later, he was charged with possessing marijuana. He set up the fact that the vagrancy case had been nol prossed as the former jeopardy in the instant case.
A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law. Smith v. State, 256 Ala. 444, 55 So. 2d 208; Rutherford v. State, 49 Ala.App. 246, 270 So. 2d 678, cert. denied, 289 Ala. 751, 270 So. 2d 679; 6 Ala.Dig., Criminal Law.
Here, the plea of autrefois acquit showed on its face that the first case was a charge of vagrancy and that the next was possessing marijuana and the legal elements of these two charges are totally different.
The record also shows that the trial court heard the attorneys at the first of the trial and disposed of this plea and other preliminary questions, and entered the following order:
The record shows that defendant could not have prevailed on the plea of former jeopardy.
The writ is withdrawn and now denied.
Writ denied.
HEFLIN, C. J., and COLEMAN, HARWOOD, MADDOX and FAULKNER, JJ., concur. | November 29, 1973 |
f7508f98-5b8c-49c8-99b9-332e1a78618e | Van Nostrand v. State | 286 So. 2d 906 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 906 (1973)
In re Ricky VAN NOSTRAND
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 603.
Supreme Court of Alabama.
December 6, 1973.
William J. Baxley, Atty. Gen., and Walter L. Allen, Sp. Asst. Atty. Gen., Montgomery, for the State, petitioner.
No brief for respondent.
COLEMAN, Justice.
Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Van Nostrand v. State, 51 Ala.App. 494, 286 So. 2d 903.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, McCALL and JONES, JJ., concur. | December 6, 1973 |
30f6cb26-b1e0-4649-ae82-91cca9048354 | Adkins v. State | 287 So. 2d 451 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 451 (1973)
In re David ADKINS
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 345.
Supreme Court of Alabama.
November 8, 1973.
Rehearing Denied December 6, 1973.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State, petitioner.
Wade H. Baxley and Alto V. Lee, III, Dothan, for respondent.
MERRILL, Justice.
The sole question in this case is whether the trial court erred in overruling the demurrer to the indictment charging the defendant with selling marijuana, where one of the grounds was that it failed to allege the name of the vendee. The Court of Criminal Appeals held that the trial court did err. We granted certiorari and now hold that the ruling of the trial court was without error.
The indictment charged that the defendant "did sell, furnish, or give away marijuana contrary to law, against the peace and dignity of the State of Alabama." This indictment was in the terms of the statute, Act No. 1407, § 401, Acts of Alabama 1971, and listed in the 1958 Recompilation as Tit. 22, § 258(47) (a), which makes it a crime for "any person who possesses, sells, furnishes, gives away, obtains, or attempts to obtain * * *" certain listed "controlled substances" including marijuana.
In Duin v. State, 288 Ala. 329, 260 So. 2d 602, the following appears:
"We quote from Clark v. State, 19 Ala. 552:
In Jackson v. State, 91 Ala. 55, 8 So. 773 (1890), this court, per Coleman, J., (the grandfather of our present Justice Coleman), said:
Title 15, §§ 230 and 232 (then §§ 4366 and 4368) of the Code were cited and applied. The indictment in that case charged that Jackson "did attempt to feloniously take and carry" etc. This court held the indictment to be sufficient, even though there was no specific form for an "attempt" in the Code.
Title 15, §§ 230 and 232 provide:
In Jones v. State, 136 Ala. 118, 34 So. 236, the indictment charged that the defendant "did within the county of Hale, in the State of Alabama, sell spirituous, vinous or malt liquors, without a license and contrary to law." The indictment followed the statute and Form 79 in § 4923, Criminal Code, 1896. A demurrer was interposed on the ground that the indictment failed to allege the name of the vendee. The demurrer was overruled. The defendant contended that it was necessary to name the person to whom the sale was made. This court said:
The court rejected the contention that the statutory form was unconstitutional and stated: "The demurrer was properly overruled."
In Lawson v. State, 151 Ala. 95, 44 So. 50, the defendant interposed a demurrer to the indictment because it failed to allege to whom the defendant sold or gave away the liquor. The court held "that the demurrer *453 attacking the form of the indictment was properly overruled."
In Grace v. State, 1 Ala.App. 211, 56 So. 25, the contention that "the indictment must allege the name of the person to whom the gift was made [was rejected]."
In Freeman v. State, 4 Ala.App. 193, 59 So. 228, the court said: "The only question presented to us goes to the sufficiency of the indictment. The indictment was not subject to demurrer because it failed to name the party to whom the liquor was sold."
In Thomas v. State, 13 Ala.App. 421, 69 So. 413, the court was concerned with an indictment for perjury and the opinion contains the following: "But, as the law does not require that the name of the person to whom liquor has been sold be alleged in an indictment or affidavit charging another person with the selling (citations omitted), certainly it cannot be rationally contended that the law requires such name to be given in an indictment for perjury against one for testifying falsely in such a case as the former."
In Allen v. State, 33 Ala.App. 70, 30 So. 2d 479, the Court of Appeals, per Harwood, J., held an indictment for selling adulterated milk sufficient and said that Counts 1 and 2 which were in the terms of the statute "adequately informed the accused of the offense he was charged with committing, and the court properly overruled the demurrers thereto."
In Baker v. State, 39 Ala.App. 221, 96 So. 2d 821, the indictment charged that the defendant "did unlawfully expose or exhibit his sexual organs or private parts in a vulgar and indecent manner on a public road in Randolph County, Alabama, contrary to law." This followed the statute setting up the offense which is listed as Tit. 14, § 326(1) of the 1958 Recompilation. The court said:
In Griffith v. State, 47 Ala.App. 378, 255 So. 2d 48, cert. den. 287 Ala. 735, 255 So. 2d 52, 405 U.S. 1042, 92 S. Ct. 1317, 31 L. Ed. 2d 583, the Court of Criminal Appeals upheld an indictment against defendant for practicing law after disbarment which stated neither the name of the client nor the cause in which representation was furnished. The court said: "Where the offense is statutory it is sufficient to allege it in the words of the statute provided it sufficiently defines the crime."
In Young v. State, (Miss.), 245 So. 2d 26, the court said:
In People v. Adams, 46 Ill. 2d 200, 263 N.E.2d 490, the Supreme Court of Illinois said:
In Aggers v. United States, (8th cir.) 366 F.2d 744, the court said:
We note that the Seventh Circuit, en banc, as it reversed Lauer, stated in Collins:
Returning to our own state, we have examined all of the selling forms in the Codes prior to 1940 and the only forms which have required the name of the vendee are those in which an ordinary sale would be legal but the crime was selling to a certain specified class of people, such as a slave, an insane person or a minor.
Title 15, § 259, Code 1940, which contains our forms, includes Form 34selling prohibited liquors; Form 96sales by an unregistered dealer; Form 99selling or conveying mortgaged property; Form 100selling, removing or concealing personal property covered by a lien and Form 101selling securities not registered, and in no instance does the form require the name of the vendee.
The form of indictment for violating the prohibition laws that the defendant "sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous or malt liquors contrary to law" has stood the test of time and practicability in this state. Literally thousands have been convicted under warrants or indictments following the form. We are not cognizant of any demand on, or movement in, the Legislature to change it through the years. In view of the long history of this type of indictment in Alabama, we continue to hold that it is not necessary to name the vendee of the drugs in the indictment, when the identity of the purchaser is not an element of a crime, the gravamen of which is the unlawful sale.
*455 Finally, we revert to Duin v. State, 288 Ala. 329, 260 So. 2d 602. In that case, we pretermitted "a determination as to what effect a demurrer raising omission of the name of the vendee would have had."
The instant case posed the question for the first time to the present court concerning an indictment for selling narcotics and we hold that it is not necessary for an indictment for selling narcotics, including the "controlled substances" listed in the statute, to contain the name of the vendee.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.
Reversed and remanded.
COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
HEFLIN, C.J., dissents.
HEFLIN, Chief Justice (dissenting):
I would affirm the judgment of the Court of Criminal Appeals. I concur in the opinion and the extended opinion on rehearing which the Court of Criminal Appeals filed in this case.
In Alabama we do not have bills of particulars or any discovery procedure in criminal cases; however, a defendant has a right to know the nature and the cause of the accusation against him in a criminal case. It is established that this is supplied through an indictment or information in felony cases.
It is interesting to observe that the State of Alabama, through the Attorney General's Office, admitted in oral arguments that the defendant was entitled to know the name of the vendee in this case. However, the State of Alabama argued that this court should establish in this case a rule of law which provides the defendant with the right on motion to discover the name of the vendee as a part of "due process." In this case there was no such motion and, therefore, there is no opportunity for this court to give consideration to the alternate approach urged by the State.
Title 15, Section 232, Code of Alabama, 1940, as amended (Recompiled 1958), establishes the requisites of an indictment in general.
However, section 230 of the same title provides that the forms prescribed by the Legislature are sufficient where applicable:
The court has gone to extremes in holding "that when the legislature, either in the body of a statute, or in a furnished form, has declared what shall be sufficient indictment, such legislative direction is controlling, and an indictment following such form will be pronounced good." Smith v. State, 63 Ala. 55 (1879). Thus, if a form is provided by the legislature, the indictment will be held good even though the indictment fails to aver some material element of the offense charged, subject to the constitutional requirement that the accused is to be informed of the nature and cause of the accusation.
Jinright v. State, 220 Ala. 268, 125 So. 606 (1929)
It would appear then that all of the form indictments for selling prohibited liquors, sales by unregistered dealers, etc. which do not purport to name the vendee are sustained under the rationale set out above, that is, since the form meets the basic constitutional requirement, it is sufficient because the legislature says so even though all material elements of the offense, i.e., the buyer, are not set out.
When there is no Code form for an offense, however, this court has taken a different approach. In Smith v. State, 63 Ala. 55 (1879), the defendant was indicted under a Code section for which no form had been provided. The indictment did not contain all the material elements of the offense charged, but did aver every material fact contained in a form for a similar offense, though in different language. In a well reasoned opinion the court concluded:
Moreover, even where the indictment substantially follows the language of the statute, if the statute does not prescribe with definiteness the elements of the offense, the indictment is invalid. In Mitchell v. State, 248 Ala. 169, 27 So. 2d 36 (1946) this court stated:
For a summary of cases holding an indictment bad which followed the wording of the statute, see, Gayden v. State, 38 Ala. App. 39, 80 So. 2d 495 (1954).
The statute in the instant case does make the selling of marijuana a criminal offense, but does not spell out the elements of the offense. It would seem that the elements would be (1) a seller, (2) the transaction, (3) the prohibited substance, and (4) the party who purchased the substance. The act of selling by its very nature requires these elements as a minimum. There must be a buyer as well as a seller. Since the buyer must be proved, it stands to reason that he should also be named in the indictment just as the other elements of the offense are.
In conclusion it would seem that in Alabama where there is a Code form provided for a selling offense, the identity of the *457 buyer need not be named, even though it is an element of the offense charged and must be proved; this because of this court's position with regard to Code forms. But where there is no Code form Section 232 applies, and every material element of the offense must be averred and proved, and failure to aver a material element of the offense should render the indictment demurrable.
Therefore, I respectfully dissent. | November 8, 1973 |
c92350b3-7e6c-40ee-a0a6-1a14b9b1ecf1 | In RE MAYBERRY v. State | 285 So. 2d 512 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 512 (1973)
In re Harold MAYBERRY
v.
STATE of Alabama.
Ex parte Harold Mayberry.
SC 567.
Supreme Court of Alabama.
November 1, 1973.
N. P. Callahan, Jr., Birmingham, for petitioner.
No brief for the State.
McCALL, Justice.
Petition of Harold Mayberry for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mayberry v. State of Alabama, 51 Ala.App. , 285 So. 2d 507.
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. | November 1, 1973 |
4f181328-b1ed-4169-841b-08ab5ca13c37 | Stonewall Insurance Company v. Lowe | 284 So. 2d 254 | N/A | Alabama | Alabama Supreme Court | 284 So. 2d 254 (1973)
STONEWALL INSURANCE COMPANY, a corporation,
v.
William Patrick LOWE and Terry Lee Goodson.
SC 240.
Supreme Court of Alabama.
September 27, 1973.
As Corrected on Denial of Rehearing October 25, 1973.
*255 Dillon, Kelley & Barnes, Alexander City, for appellant.
Ruth S. Sullivan, Dadeville, for appellees.
FAULKNER, Justice.
This is an appeal from the Circuit Court of Tallapoosa County from a judgment of the trial court decreeing that Stonewall, the insurer, must defend Lowe, the insured, against the claims of Goodson, resulting from an automobile accident, and obligating Stonewall to pay any judgments appertaining thereto.
The facts are not complex. Lowe was involved in an automobile accident with Goodson on September 4, 1971. At the time of the accident, Lowe was insured by Stonewall under a policy of insurance issued by Stonewall to Lowe on or about March 10, 1971. It was a basic standard automobile liability insurance policy providing coverage to the extent of $10,000 for bodily injuries arising out of the use by Lowe of a 1961 Ford truck. The policy was in force on September 4, 1971, the date of the accident. Goodson allegedly received injuries in the accident. Lowe reported the accident to Stonewall on December 16, 1971, after he had received notice from the Department of Public Safety to file a Proof of Financial Responsibility. After receiving notice of the accident, Stonewall made an investigation but denied coverage for failure of Lowe to give it notice under a clause in the policy which provided that when an accident occurs written notice shall be given by or on behalf of the insured to the company or one of its authorized agents as soon as practicable. Notice was given by Lowe when he went to the office of a Stonewall agent requesting assistance in preparing the form sent to him by the Department of Public Safety.
Stonewall filed a bill for declaratory judgment on February 21, 1972, seeking a declaration that it was under no obligation to defend Lowe against the claims of Goodson. Lowe requested a trial by jury. At the conclusion of the trial the case was submitted to the jury on the issue of whether Lowe had given notice of the accident to the company as soon as practicable. The jury found that he had and the trial court entered a judgment that Stonewall was liable to defend against the claims of Goodson and obligated to pay any judgments obtained, arising out of the accident. We affirm the trial court.
Lowe lived in a rural community. He was 22 years of age and had finished the 10th grade in school. He lived in a trailer behind his father's house. His father purchased the policy for him. Lowe's father had possession of the policy. Lowe had never read the policy. Documentary evidence introduced by Stonewall, without objection shows that Lowe made a written statement in which he said that he first reported the accident to his insurance agent on December 16, 1971; that at the time of the accident he did not realize that he had insurance; that even after he found out he had insurance, he did not report the accident, as he did not feel he was at fault. Evidence showed that he was not aware of any need to notify the company until he talked with an adjuster when he received the notice from the Department of Public Safety to comply with the Financial Responsibility Law. Lowe testified that Goodson told him at the time of the accident that he had hospital insurance.
We are concerned with the question of whether the excuse given by Lowe, if believed by the jury, justified the delay in giving notice.
The general rule in construing the phrase "as soon as practicable" is stated in American Liberty Insurance Company v. Soules, 288 Ala. 163, 258 So. 2d 872. These words must be construed to require notice within a reasonable time under all the facts and circumstances of the case.
The reason for requiring notice and proof of loss is to allow the insurer to form an intelligent estimate of its rights *256 and liabilities; to afford it an opportunity to investigate the claim, and to prevent fraud and imposition upon it. Here Stonewall made an investigation and had the opportunity to determine its rights and liabilities before any lawsuit against its insured was filed. The delay in giving notice in American Liberty Insurance Company v. Soules, supra, was considerably longer than here, and it was held to have been given as soon as practicable.
Under the scintilla rule the case was properly submitted to the jury. Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251.
It is only where there is no evidence tending to establish plaintiff's case that the court may direct a verdict for the defendant. In considering whether the affirmative charge should be given, the evidence must be reviewed most favorably to the plaintiff. United Insurance Company of America v. Ray, 275 Ala. 411, 155 So. 2d 514. The jury found that, under the evidence, notice was given as soon as practicable. Lowe's excuse that he did not think there would be a claim filed against him arising out of this accident satisfied the jury that he acted as a reasonable and prudent man under the circumstances. It satisfies us.
During the hearing Stonewall asked Lowe, on cross-examination:
An objection interposed was sustained. Stonewall assigns this as error. The sole issue presented to the jury was whether notice was given "as soon as practicable." Involvement in a prior accident was irrelevant to the issue. Whether evidence is relevant is largely a matter of discretion of the trial court. State of Alabama, By and Through the State Board for Registration of Architects, etc. v. Jones, 289 Ala. 353, 267 So. 2d 427.
Stonewall also assigns error by the court in overruling its objection to the question asked Lowe:
There was no injury suffered by Stonewall even if the ruling was erroneous. Lowe had already answered the question earlier and Stonewall had received the benefit of the testimony. Ennis v. Whitaker, 281 Ala. 563, 206 So. 2d 367.
The next assignment of error involves the statements of Lowe and Goodson given to the adjuster. These were introduced into evidence by Lowe. The evidence was limited to the fact that an investigation was made. We are of the opinion that these statements were material and aided the jury in determining whether the objects and purposes of the phrase "as soon as practicable" had been effectuated.
The final assignment of error argued concerns the admission of the adjuster's statement to Lowe not to worry about the policy. There was no issue of waiver and estoppel; consequently the introduction of the evidence was harmless. Rivers v. Paterson & Edey Lumber Company, 212 Ala. 96, 101 So. 652.
The other assignments of error were not argued and will not be considered on appeal. Brittain v. Ingram, 282 Ala. 158, 209 So. 2d 653.
Affirmed.
Opinion corrected and application for rehearing denied.
MERRILL, HARWOOD, BLOODWORTH and MADDOX, JJ., concur. | October 25, 1973 |
bf2e8e2e-73b6-43a7-b8b1-58cc21328cac | Alabama Power Company v. Hussey | 285 So. 2d 92 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 92 (1973)
ALABAMA POWER COMPANY, a corporation
v.
S. M. HUSSEY.
SC 339.
Supreme Court of Alabama.
November 8, 1973.
*93 Balch, Bingham, Baker, Hawthorne, Williams & Ward and James O. Spencer, Jr., Birmingham, Smith & Smith, Phenix City, for appellant.
C. Neal Pope, Phenix City, for appellee.
BLOODWORTH, Justice.
Defendant, Alabama Power Company, appeals from a judgment on a jury verdict for $30,000 in an action for wrongfully disconnecting and discontinuing electric current to the residence of plaintiff, Hussey, appellee herein.
Plaintiff Hussey filed his complaint in two counts, count one alleging defendant wrongfully discontinued electric service to the plaintiff's residence, and the second count averring defendant wilfully or wantonly discontinued the electric service. Defendant's demurrer was overruled. Defendant thereupon filed eight pleas. Plea Six is a plea of confession and avoidance based upon an alleged refusal by plaintiff to make a deposit in accordance with Rule 7 of the General Rules applying to public electric, gas and water utilities in the State of Alabama promulgated by the Alabama Public Service Commission, which permits the Power Company to require a deposit from customers to guarantee payment of current bills, when in its judgment such deposit is necessary. Plaintiff did not demur to defendant's pleas, but rather joined issue on them. Trial was had and a jury returned a verdict in favor of the plaintiff for $30,000. Defendant's motion for a new trial was denied. Defendant appeals.
Briefly, the facts of this case are as follows. Plaintiff had been a customer of the Alabama Power Company for a period of 13 years, during which time his monthly electric bill had never exceeded $50.00. He has always paid these bills timely.
In September, 1971, he received a monthly bill from the Alabama Power Company for $172.46. Plaintiff immediately called the local office of the Alabama Power Company and told them that the bill was unusually high and requested that the meter be rechecked. A series of telephone calls and trips out to the plaintiff's residence by the defendant's employees apparently followed, and the Power Company assured the plaintiff that the bill was correct. Plaintiff then hired his own electrician, Mr. Tice, whom the Power Company had assured him was competent for the job, to recheck the meter. Mr. Tice *94 checked the meter, found and replaced a burned out part.
In October, 1971, plaintiff received a monthly bill from the Power Company in the amount of $81.73. Both bills were paid on October 22.
About November 24, plaintiff received a letter from the Alabama Power Company stating that, as a result of an investigation of plaintiff's account, the company had determined that plaintiff's meter had been tampered with and that plaintiff had been underbilled. The letter then stated that a revised billing for the past 13 months indicated that plaintiff owed an additional $490.95. The next day, plaintiff received another letter from the Power Company which demanded a deposit of $120.00 and stated that if such deposit were not made within 10 days, electric service to the plaintiff would be disconnected. The deposit was not paid and the electric power to plaintiff's residence was cut off for a period of nine days. This suit followed. Nothing further has occurred with reference to the $490.95 bill. We presume its collection was abandoned.
Three issues are argued on this appeal. First, defendant contends that it proved all the allegations of Plea Six, and that therefore the trial court committed reversible error in denying defendant's request for the general affirmative charge. Second, defendant contends that the trial judge committed reversible error in denying defendant's motion for new trial on the grounds that a juror, who allegedly had made "complaints" to the Power Company in the past, failed to so state when questioned on voir dire. Third, defendant contends that the verdict of the jury was so excessive as to necessarily result from prejudice, passion, partiality or some other controlling sentiment, and that the trial judge committed reversible error in failing to set it aside on defendant's motion for a new trial.
Defendant's Plea Six is as follows:
It is well established that undisputed proof of an immaterial plea entitles the defendant to a judgment as a matter of law. The truth of the plea, however, must be proved "without dispute" (Gay v. Cummings, 23 Ala.App. 8, 122 So. 313, cert. den., 219 Ala. 324, 122 So. 313 (1929)), by "uncontradicted proof of the facts averred" (Doss v. Wadsworth Red Ash Coal Co., 185 Ala. 597, 602, 64 So. 341 (1914)), and "without conflict" in the evidence (Central of Georgia Ry. Co. v. Gross, 192 Ala. 354, 360, 68 So. 291 (1914)).
In Drake v. Nunn, 210 Ala. 136, 97 So. 211 (1923), this court reversed a judgment where an affirmative charge for defendant had been given because, while the bulk of the plea was without dispute, one fact averred in the plea was in sharp conflict. In doing this, the court made it clear that such pleas will be strictly construed:
Upon examining the record in the case at bar, it is clear that at least one averment of Plea Six, i.e., that the deposit was "intended to guarantee payment of current bills," was in sharp conflict. While the defendant Power Company did introduce testimony that such was the purpose of requiring the deposit of plaintiff, this court takes note that there was testimony to the effect that plaintiff's bill was not in arrears at the time it was determined a deposit was necessary; that plaintiff had kept his power bill current for 13 years; that the deposit demanded was more than twice the highest bill the plaintiff had ever received, exclusive of the two disputed bills; that defendant had contended that plaintiff's meter had been tampered with; and, that agents of defendant had maintained a surveillance of plaintiff's house at night. These facts, as well as the circumstances of the two disputed bills, suggest the Power Company's motive for requiring the deposit may have been other than as averred.
Despite the fact that the trial judge sustained as irrelevant an objection to the only explicit question relating to the discontinuance of service occasioned by unauthorized motive, we think there was at least some evidence which disputed defendant's evidence (under Plea Six) as to its purpose in demanding the deposit. As we have said before, a mere scintilla of evidence will avoid an affirmative charge and require the question to go to the jury. Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 267 So. 2d 132 (1972).
It is thus that we conclude that the trial court was correct in denying defendant's motion for a new trial based upon the denial of defendant's motion for an affirmative charge.
Next, we consider defendant's contention that the trial judge committed reversible error in denying defendant's motion for a new trial on the grounds that one of the jurors failed to answer truthfully a question on voir dire. The question arose in the following context, viz:
Evidence was presented to the trial judge on motion for a new trial that the juror Mrs. Melinda Wilkes, who served on the trial jury, had failed to respond to this question. Furthermore, it was shown that juror Wilkes had made several phone calls to defendant Power Company during the summer and fall of 1972 with inquiries regarding the amount of her bill, the repair of an air conditioner and arranging to pay her bill in installments. Defendant contends that such calls amount to "complaints," and that juror Wilkes' failure to reveal this on voir dire denied defendant a *96 fair and impartial jury in the trial of this cause.
In our recent case of Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970), we pronounced the applicable rule to be followed in this state concerning jurors who fail to respond to questions put to them on voir dire. In that case, this court stated:
This court in Freeman went on to state that:
In determining whether the trial court abused its discretion in denying defendant's motion for a new trial, we have been hampered by the court's failure to make express findings on this issue. We think it is the better judicial practice to include in the record such express findings on the question of probable prejudice.
Nevertheless, we have previously held the rule to be that, where there is no direct finding by the trial judge on a given matter and the decree rendered necessitated such a finding, it will be presumed on appeal that there was such a finding in the absence of anything to the contrary. Mitchell v. Harris, 286 Ala. 724, 246 So. 2d 648, 651 (1971); Aikin v. Murphy, 282 Ala. 538, 213 So. 2d 383 (1968).
In the instant case, evidence on defendant's motion was heard by the trial court ore tenus. Such evidence included testimony specifically addressed to the issue of juror Wilkes' probable prejudice against defendant Power Company as a result of the alleged complaints. Absent any evidence to the contrary, we must presume that the learned trial judge applied the applicable standard as announced in Freeman v. Hall, supra, and that his denial of defendant's motion for a new trial was predicated upon his conclusion that probable prejudice to defendant did not result from Mrs. Wilkes' failure to answer and her subsequent service on the jury.
It is our conclusion that such a finding is amply supported by the evidence. The record reveals that Mrs. Wilkes testified that she had called Mrs. Lunsford and Mr. Norris, close personal friends who worked for the Power Company, and had talked to them concerning her bill and the repair of her air conditioner; that she would not have called at all had she not known Mrs. Lunsford personally; that she had not considered herself as making a complaint but merely inquiring about her bill and service; that had she known that her calls were to be considered as making a "formal complaint," she would not have called; and that she considered only the evidence which came from the witness stand in deciding the case and that no calls made by her had any part in influencing her decision as a juror. The trial judge did not abuse his discretion in denying defendant's motion for a new trial on this ground.[1]
*97 The final argument presented by defendant on this appeal challenges the amount of the verdict as excessive. With this contention we agree.
At the outset, we recognize that there can be no set formula for determining the appropriate amount of damages to be awarded in any given case. And, this court has long held that a trial court will not be reversed for refusing to disturb a verdict unless, after allowing all reasonable presumptions in favor of its correctness, the weight of the evidence against the amount of the verdict is so decided as to convince this court that it indicates passion, prejudice, partiality, or corruption on the part of the jury.
On the other hand, this court declared in Sturdivant v. Crawford et al., 240 Ala. 383, 199 So. 537, 539, viz:
After a careful review of the record in this cause, we are of the opinion that the verdict is so clearly excessive as to call for the interposition of our court and that the trial judge erred in denying the motion for new trial on this ground.
Therefore, unless the plaintiff, within thirty days from this date, enters a remittitur in the sum of $10,000, thus reducing the judgment to $20,000, the judgment will stand reversed and the cause remanded. On entry of such remittitur, the cause will stand affirmed for the reduced sum of $20,000.
Affirmed conditionally.
HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER and JONES, JJ., concur.
HARWOOD, J., concurs specially.
COLEMAN, J., dissents.
HARWOOD, Justice (concurring specially):
I concur with the result reached in the majority opinion except as to the amount of the remittitur required.
*98 True, the conduct of the Alabama Power Company was aggravated and oppressive, and certainly subjected it to being assessed with punitive damages. However, the appellees were without electric current for only nine days. There was no evidence of any special damages. In my opinion a judgment in the amount of $15,000.00 would adequately compensate the appellees for any inconvenience or embarrassment they may have suffered, and at the same time sufficiently chastise and punish the Power Company for their conduct in this instance.
Admittedly, there is no certain rule to be applied in determining the excessiveness or inadequacy of damages. It is simply whether the judicial conscience is quickened by the damages awarded. Foster v. Floyd, 276 Ala. 428, 163 So. 2d 213. It is my feeling that the damages awarded are excessive to the extend of $15,000.00.
COLEMAN, Justice (dissenting):
Defendant assigns for error the action of the trial court in overruling defendant's motion for new trial. Defendant argues that the trial court erred in overruling those grounds of the motion wherein defendant asserts that Melinda Weaver Wilkes was a member of the venire from which the jury was chosen and failed to answer questions propounded to the venire by the trial court on voir dire and that, because of the failure of Melinda Wilkes to answer, defendant was prejudiced. Ground 50 of the motion recites:
Melinda Wilkes did serve as a member of the jury which returned the verdict against defendant.
The trial began October 5, 1972. The record discloses that the trial court, on voir dire examination of the venire, made the following statement:
Then follows a list of twenty-three names, including the name: Melinda Wilkes.
The court then said to the venire:
The record indicates that four jurors (Rushin, Mathews, Funderburk, and Allen) responded to the court's question by giving their names.
On the hearing of the motion for new trial, four employees of defendant testified.
*99 1. Annelle Webb testified that she is employed in the accounting department; that she talked with Melinda Wilkes after Melinda Wilkes made a complaint on September 14, 1972; that the conversation was "Somewhere between this date and the end of the month"; that the complaint of September 14 was "a high bill complaint"; that the conversation was by telephone; and that the witness "Just informed her (Melinda Wilkes) that we had checked her meter and that it was reading correctly." (Par. Supplied)
2. Wylean Lunsford testified that she is a customer contact clerk; that a first cousin of Melinda Wilkes is married to a brother of the witness; that the witness talked to Melinda Wilkes by telephone about the first or second week of July, 1972; that the witness was at work; that the substance of the conversation was that Melinda Wilkes had been having trouble with her air conditioner; that defendant's repairman had been to the house of Melinda Wilkes and had told her that it would take about three weeks to obtain a part for the air conditioner; that it had been more than three weeks at the time of conversation; and that Melinda Wilkes ". . . was unhappy about the air conditioner not being repaired."
The witness testified that Melinda Wilkes called again within a week or maybe less, and that the substance of the conversation was as follows:
The witness testified that on July 19, Melinda Wilkes called the witness "to complain about her bill"; and that the substance of the conversation was as follows:
The witness testified that Melinda Wilkes called again on September 14, 1972, and the substance of the conversation was as follows:
The witness testified on cross examination that Melinda called later in October about the repair bill which was "In the neighborhood of $90.00."
On redirect, the witness testified that on the first three occasions Mrs. Wilkes "sounded upset" but she did not sound upset on the last occasion.
3. Arthur Kelley testified that he talked with Melinda Wilkes by telephone on August 7, 1972, in response to a complaint about her bill; that he advised her that "the billing in question was correct." On cross examination the witness testified:
"A. No, she was not upset. She just questioned the bill."
4. Billy B. Norris testified that he was employed by defendant as an appliance repairman; that he talked with Melinda Wilkes in June, 1972, about a window air conditioning unit; that the motor was bad; that it was necessary to order a new motor; that it took about a month to get it; that he put it in the air conditioning unit in "the latter part of June or the first of July"; that he talked with Mrs. Wilkes at her house; and that she called several times about the part, when it would come in or why it took so long to get it.
The witness testified that no unpleasantness was involved as far as he was concerned; *100 that she did "express concern over the bill"; and when he went out to make the repair, "She was perturbed, yes, sir."
Melinda Wilkes testified that in July or August, 1972, her air conditioner would not run and she called Norris and asked him to come out and check the air conditioner; "He said he could but it would be the Alabama Power Company. And I said that would be fine."; that the period of time between the first call and the actual repair was about two and a half to three months during the summer; that she made one or more calls checking to see when the work would be done; that she always called Mrs. Lunsford, who was a friend; that she asked Mrs. Lunsford could we get an itemized statement and she said yes; that the witness said "`It seems, you know, high.'"; that she got a statement but she does not remember how it was itemized; that when she would look at a bill and consider it to be possibly high she would use another statement, a prior bill, and "We have a folder and we keep all our bills."
The witness testified that she remembered the judge asking questions about whether any of the potential jurors had filed a complaint with defendant, but she did not stand up and inform the judge that she had complained; and that she did not know that she was complaining.
On cross examination, Melinda Wilkes testified:
"A. I made the calls.
"Q. But you don't call them complaints?
"A. No. I just like to know.
"Q. You were questioning the bill, then?
"A. No. I just like to make sure.
"A. Yes."
As stated above, the trial began October 5, 1972. Mrs. Wilkes acknowledged that she had made numerous "calls" to the office of defendant during the three preceding summer months. She testified that her air conditioner would not run; that two and a half months' delay occurred between her first call to defendant about the air conditioner and its actual repair. She had made numerous calls in which she "questioned" the correctness of bills she had received from defendant. As noted above, she called Wylean Lunsford on September 14, 1972, three weeks before the day of trial with respect to a bill, and "Well, she felt that her billthere was so much difference in her bill the month before and that month, and that it was much too high, and she didn't feel that she had possibly used that much current."
The testimony on the hearing of the motion can lead only to the conclusion that Mrs. Wilkes had had such experiences in her dealings with the defendant during the summer immediately preceding the trial in October that, at the least, would produce feelings of frustration and resentment, and in most persons would naturally result in hostility and prejudice against defendant.
Nevertheless, she did not respond to the inquiry by the court asking jurors whether they had made "some sort of complaint" against defendant, or "had occasion to question something." As a result of her failure to answer, defendant was denied the right to advisedly exercise its peremptory strikes in selection of the jury. If defendant *101 had been informed that Mrs. Wilkes had made complaints or "questioned" the amount of her bills as shown by the evidence on the hearing of the motion, prudence would have required defendant to regard her as a juror biased against defendant. See Title 30, § 52. In reversing for failure of jurors to answer on voir dire, this court has said:
I am of opinion that the trial court erred to reversal in overruling those grounds of the motion for new trial such as Ground 50 quoted above, and that the judgment should be reversed and the cause remanded for another trial.
[1] From the record it appears that Mrs. Wilkes initiated either five or six conversations with the defendant Power Company's employees during the summer of 1972. In her first call, sometime in June, Mrs. Wilkes arranged to have a Power Company repairman come to her home to repair her air conditioner. Not even the defendant's employees characterize this call as a complaint. In the second call, in July, she inquired whether the part necessary to fix her air conditioner which had been ordered from the factory had yet arrived. There may also have been a third call in July making the same inquiry. However, the Power Company employee who testified to both the "second" and "third" calls later testified that there was only one "complaint" about an air conditioning part. In a fourth call on July 19, Mrs. Wilkes requested that her meter be rechecked; this call was apparently returned on August 7, by Mr. Kelley who described such a request as "routine." (This call is characterized a "complaint" by a Power Company witness.) The fifth call on September 14, to Mrs. Lunsford was a similar request to have the meter rechecked. (This call is called a "complaint" also.) The call was returned by Mrs. Webb who didn't specifically remember having spoken to Mrs. Wilkes at all. The final call was simply a request for an itemized bill on the repair of the air conditioner.
While employees of defendant Power Company characterize only three of these calls as "complaints," we do not feel the trial court was bound by such a characterization. It appears that several of the calls involve entirely routine contacts between the Power Company's customer and its employees. Furthermore, the testimony by Mrs. Lunsford that all calls to verify bills are categorically considered "complaints" by her casts doubt on the reliability of such a characterization of these calls. Mrs. Wilkes, the juror, testified she was merely trying to find out if her bill was correct. | November 8, 1973 |
1879d68e-fa55-4712-a67c-61bbec6952fd | In RE GRISSOM v. State | 284 So. 2d 740 | N/A | Alabama | Alabama Supreme Court | 284 So. 2d 740 (1973)
In re Charlie GRISSOM, alias
v.
STATE.
Ex parte Charlie Grissom.
SC 559.
Supreme Court of Alabama.
October 25, 1973.
James F. Hinton, Gadsden, for petitioner.
No brief for the state.
MADDOX, Justice.
Petition of Charlie Grissom for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Grissom v. State, 51 Ala.App. ___, 284, So.2d 739.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | October 25, 1973 |
654e5e85-9e04-41cf-a07e-e0fd3d864621 | Klemmer v. State | 286 So. 2d 62 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 62 (1973)
In re Raymond A. KLEMMER, alias
v.
STATE.
Ex parte Raymond A. Klemmer.
SC 563.
Supreme Court of Alabama.
October 25, 1973.
Rehearing Denied December 13, 1973.
Andrew J. Gentry, Jr., Auburn, for petitioner.
No brief for the State.
MERRILL, Justice.
Petition of Raymond A. Klemmer for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Klemmer, alias v. State, 51 Ala.App. 383, 286 So. 2d 58.
Writ denied.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | October 25, 1973 |
aed046cd-b13b-4be3-80af-da4d695e23e4 | In RE PASQUALE FOOD CO. v. L & H International Airmotive, Inc. | 283 So. 2d 448 | N/A | Alabama | Alabama Supreme Court | 283 So. 2d 448 (1973)
In re PASQUALE FOOD COMPANY, INC., a corporation
v.
L & H INTERNATIONAL AIRMOTIVE, INC., a corporation.
Ex parte Pasquale Food Company, Inc., a corporation.
SC 512.
Supreme Court of Alabama.
September 27, 1973.
MacBeth Wagnon, Jr., Birmingham, for petitioner.
C. Lee Reeves, Birmingham, for respondent.
HARWOOD, Justice.
Petition of Pasquale Food Company, Inc., a Corp., for Writ of Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Pasquale Food Co., Inc., a Corp. v. L & H International Airmotive, 51 Ala.App. ___ 283 So. 2d 438.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | September 27, 1973 |
49963853-d358-42c3-b306-966bb3b0dea8 | In RE LEE v. Layton | 285 So. 2d 113 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 113 (1973)
In re Robert LEE
v.
Myra LAYTON.
Ex parte Myra LAYTON.
SC 488.
Supreme Court of Alabama.
September 20, 1973.
Ralph Slate, Decatur, for petitioner.
No brief for respondent.
McCALL, Justice.
Petition of Myra Layton for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Lee v. Layton, 51 Ala.App. , 285 So. 2d 108.
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. | September 20, 1973 |
728af13d-a3eb-49e9-b60c-d20e3ee84dbc | W & H MacHine & Tool Co. v. NATIONAL DISTILL. & C. CORP | 283 So. 2d 173 | N/A | Alabama | Alabama Supreme Court | 283 So. 2d 173 (1973)
Ex parte W & H Machine & Tool Company.
In re W & H MACHINE & TOOL COMPANY
v.
NATIONAL DISTILLERS AND CHEMICAL CORP., a corporation.
Ex parte Line Novelty Manufacturing Company.
In re LINE NOVELTY MANUFACTURING COMPANY
v.
NATIONAL DISTILLERS AND CHEMICAL CORPORATION, a corporation.
SC 285, 296.
Supreme Court of Alabama.
September 20, 1973.
*174 Johnston & Shores and Samuel G. McKerall, Birmingham, for petitioners.
Lange, Simpson, Robinson & Somerville, and Reid B. Barnes, Robert McD. Smith and Joseph W. Mathews, Jr., Birmingham, for respondent.
BLOODWORTH, Justice.
These two cases come to this court on petition seeking writs of mandamus to be issued to Honorable Whit Windham, Circuit Judge, Tenth Judicial Circuit. Both petitions assert that Judge Windham committed reversible error by his order transferring the petitioners' cases from the Law Division to the Equity Division of the Jefferson County Circuit Court. The causes were consolidated here and submitted on oral argument June 13, 1973. After a careful consideration thereof, we have concluded that Judge Windham's order was correct and that the petitions are due to be denied.
The original actions in these cases were brought on the law side by petitioners against National Distillers and Chemical Corporation for debts alleged to be due to petitioners by Brad's Machine Products, Inc.
The W & H Machine & Tool Company complaint was in three counts, two in code form for assumpsit, suing for the price of the goods sold, and the third in fraud, seeking punitive damages. The complaint was amended by striking these three counts and adding three additional counts, each of which sought money damages for the price of the goods sold and each of which alleged an "instrumentality" theory for recovery.[1]
*175 The Line Novelty Manufacturing Company complaint was in one count in code form for assumpsit, suing for the price of the goods sold. This count was struck, and three additional counts were added seeking money damages for the price of the goods sold and also alleging an "instrumentality" theory for recovery.
As the basis for the "instrumentality" theory, both petitioners alleged in their amended counts that Brad's Machine Products, Inc. was the alter ego of the National Distillers and Chemical Corporation. It is also alleged that Brad's was a mortgage debtor of National Distillers, and that in order to forestall the collection and foreclosure of this mortgage, Brad's allowed National Distillers to take over its financial management. This takeover was alleged to have been accomplished by permitting an employee of National Distillers, one Leon H. Rudd, to issue all checks for Brad's and to possess the power to allocate funds for Brad's. The petitioners alleged that, as a result of this relationship, National Distillers took over payment of Brad's accounts and through its agent injured the plaintiff by expending Brad's funds for its own well being.
Following these amendments, the respondent judge entered orders transferring both cases from the law division to the equity division, being of the stated opinion that the causes could be disposed of only in equity. We agree.
Petitioners assert that mandamus is the proper remedy to review Judge Windham's orders of transfer. This is correct. See In re Curl v. Putman, 286 Ala. 85, 237 So. 2d 475 (1970); Ex parte Porter, 271 Ala. 44, 122 So. 2d 119 (1960).
The primary issue before this court is whether an action to collect a debt can be maintained on the law side when the debtor is alleged to be the instrumentality and alter ego of the defendant, and the defendant is alleged to be thus liable for the debts of its instrumentality.
The petitioners contend that they have a right to maintain these actions in assumpsit on the law side since their claims are for money damages. Petitioners argue that, while the "instrumentality" rule is an equitable doctrine, its use is not limited to the equity side of the court. Their assertion is that the courts have made use of the doctrine in imposing liability on a defendant corporation in actions on the law side. They further contend that, since the action of assumpsit is a common law action, they have a right to a jury trial under the Constitution of Alabama. The right to a jury trial is the real issue in contention between the parties.
Article 1, § 11 of the Alabama Constitution of 1901 is a source of the right to jury trial in this state. That section provides: "That the right of trial by jury shall remain inviolate." (There are also rights to jury trial obtained through statutes with which we are not here concerned.)[2]
This provision has been interpreted to provide for jury trial in those classes of cases in which the right existed at common *176 law, or in which it was used at the time of the adoption of the Constitution. Alford v. State, 170 Ala. 178, 188, 54 So. 213, 215 (1911). This embraces all purely legal rights and contentions which were known to the common law and which had no element of equitable cognizance in their composition and in which a trial by jury existed. Tillery v. Commercial National Bank, 241 Ala. 653, 4 So. 2d 125 (1941); Montgomery & Florida Ry. v. McKenzie, 85 Ala. 546, 549, 5 So. 322 (1888).
Section 11, supra, however, in no way enlarges the right of jury trial. It does not extend to cases where jury trial was not available as of right prior to the Constitution. State v. Bley, 162 Ala. 239, 50 So. 263 (1909). Nor does it extend to causes totally unknown to the common law or to the statutory law as it existed at the time of the adoption of the Constitution. In re One Chevrolet Automobile, Senior v. State, 205 Ala. 337, 87 So. 592 (1921); Tims v. State, 26 Ala. 165 (1855).
The primary question before this court then is whether or not the action of assumpsit based upon an instrumentality theory was recognized on the law side of the court at common law.
We have not been cited to, nor have we found, any cases prior to the adoption of the Alabama Constitution which have specifically held that causes relying on the "instrumentality theory" (whether it be denominated the "entity theory," "alter ego," "piercing the corporate veil," "disregarding the corporate entity," etc.) may be brought on the law side of the court. We must, therefore, conclude that this precise cause of action was unknown to the common law.
Nor can we agree with appellants' contention that an action of assumpsit based upon an instrumentality theory, when only money damages are sought, is nothing more than any other action sounding in assumpsit, which can only be properly brought on the law side. While appellants' cite several cases for the proposition that equity jurisdiction does not extend to a party seeking only money damages, a closer look at those same cases reveals that the test is not whether or not only money damages are sought, but whether there is an adequate remedy at law. Merchant's National Bank v. Roche, 227 Ala. 639, 151 So. 591, 593 (1933); City of Tuscaloosa v. Williams, 229 Ala. 542, 158 So. 753, 756 (1935); Gulf Compress Co. v. Harris, Cortner & Co., 158 Ala. 343, 48 So. 477, 480 (1908).
As applied to the case at bar, it is clear that an adequate remedy exists at law only if the instrumentality rule is cognizable at law. In nearly all the Alabama cases (outside of tort actions) which have employed the "instrumentality rule" or "pierce the corporate veil" theory, it is indicated that the court does so sitting as a court in equity. See, e. g., the very recent case of C. E. Development Co. v. Kitchens, 288 Ala. 660, 264 So. 2d 510 (1972); Morgan Plan Co. v. Vellianitis, 270 Ala. 102, 107, 116 So. 2d 600 (1959); Appelbaum v. First National Bank of Birmingham, 235 Ala. 380, 382, 179 So. 373, 374 (1938).
In Appelbaum, supra:
In the instant case, the ultimate question which the trial court must decide is: *177 whether, looking through form to substance, as the equity court will do, Brad's debts which are owed to W & H Machine and Line Novelty are the debts of National Distillers.
We have found no Alabama cases on the question as to whether law will follow equity in applying the instrumentality rule in the non tort context. In the few Alabama cases involving this rule tried on the law side which have come to our attention, no challenge was made to the forum. Thus, this issue was never presented. Looking to the courts of other jurisdictions, we have been cited to only two states which have specifically held that the instrumentality rule will be recognized by a court sitting at law. These two are California (see, e. g., Erkenbrecher v. Grant, 187 Cal. 7, 200 P. 641 (1921) (dicta); Mirabito v. San Francisco Dairy Co., 8 Cal. App. 2d 54, 47 P.2d 530 (1935)) and Wisconsin (See R. B. General Trucking, Inc. v. Auto Parts & Service, Inc., 3 Wis.2d 91, 87 N.W.2d 863 (1958)).
The overwhelming majority of cases in other jurisdictions which disregard the corporate entity have been tried in equity and recognize that the doctrine is one of an equitable nature. See, e. g., as examples: Fitzgerald v. Central Bank & Trust Co., 257 F.2d 118, 120 (10 Cir. 1958); Tilley v. Shippee, 12 Ill. 2d 616, 147 N.E.2d 347, 352 (1958); In re Rieger, Kapner & Altmark, 157 F. 609, 613 (D.C.Ohio 1907); Plank v. Arban, 241 So. 2d 198, 200 (Fla.App.1970); Broyles v. Johnson, 99 Ga.App. 69, 107 S.E.2d 851, 853 (1959), (refusal to disregard corporate entity because brought in law); Crocker v. Pitti, 179 Md. 52, 16 A.2d 875, 877 (1940); United Armenian Brethren Evangelical Church v. Kazanjian, 322 Mich. 651, 34 N.W.2d 510, 513 (1948); Kugler v. Koscot Interplanetary, Inc., 120 N.J.Super. 216, 293 A.2d 682, 703 (1972); Schriock v. Schriock, 128 N.W.2d 852, 866 (N.D.1964); Continental Supply Co. v. Forrest E. Gilmore Co., 55 S.W.2d 622, 628 (Tex.Civ.App. 1933), (disregard of corporate entity in proper province of court not jury).
We think these latter cases state the better rule. It is a generally accepted principle that in both law and equity a corporation is treated as a separate and distinct entity. Finley v. Kanter, 256 Ala. 103, 53 So. 2d 347 (1951); Toomer v. Alpha Lambda Club, 37 Ala.App. 331, 67 So. 2d 849 (1953). While law rigidly observes these legal structures, a court of equity will look beyond the legal formalisms of the corporate fiction when necessary in order to prevent injustice. Selected Inv. Corp. v. Duncan, 10 Cir., 260 F.2d 918, cert. denied 359 U.S. 914, 79 S. Ct. 584, 3 L. Ed. 2d 576 (1959); Specht v. Eastwood-Nealley Corp., 25 N.J.Super. 69, 95 A.2d 485 (1953); Landa v. Whitfield, 131 S.W.2d 310 (Tex. Civ.App. 1939). See also 1 Fletcher Cyclopedia Corporations, § 41.2, n. 7.
We thus conclude that a cause of action filed, as here, in assumpsit predicated on an instrumentality theory, though seeking money damages only, properly invokes the equity powers of the court.[3] The petitions for writs of mandamus are due to be denied.
Writs denied.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur.
[1] This court has defined the "instrumentality" rule, viz:
"The notion of separate corporate existence will not be recognized where a corporation is so organized and controlled and its business conducted in such a manner as to make it merely an instrumentality of another, and in such circumstances the fiction may not be prosecuted to permit the corporation to evade its just responsibilities. The fiction was introduced into the law for certain well-known purposes, but it was not invented to promote injustice or justify wrongs and when so used it should be disregarded. The courts will not allow the corporate entity to successfully masquerade through its officers, stockholders, representatives or associates so as to defeat the payment of its just obligations." [Citations omitted] Forest Hill Corporation v. Latter & Blum. Inc., 249 Ala. 23, 29 So. 2d 298 (1947).
[2] See Rule 38, "The Alabama Rules of Civil Procedure," (1973) and "Committee Comments" thereunder. See also Rule 2, supra, and "Committee Comments" thereunder.
[3] Since this cause was submitted, the Alabama Rules of Civil Procedure (1973) became effective on July 3, 1973. We do not decide whether, or to what extent, these "Rules" apply to these causes. See Rule 86. Neither do we decide to what extent Rules 38 and 39 may affect these causes, should the "Rules" be considered applicable by the trial court. | September 20, 1973 |
ab58b5cd-2ce5-4d6e-abaa-0321a2f23290 | Ex Parte Wilson | 112 So. 2d 443 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 443 (1959)
Ex parte Herndon H. WILSON, as Recorder of the City of Mobile.
Herndon H. WILSON, etc.
v.
Hubert M. HALL, as Judge of the Circuit Court of Baldwin County.
1 Div. 788.
Supreme Court of Alabama.
May 28, 1959.
*444 Fred G. Collins, Mobile, for petitioner.
Caffey, Gallalee & Caffey, Mobile, and Wilters & Brantley, Bay Minette, for respondent.
COLEMAN, Justice.
Petitioner, as Recorder of the City of Mobile, has applied to the Supreme Court for writ of prohibition, or other appropriate writ, to be directed to respondent, the Judge of the Circuit Court of Baldwin County.
The sworn petition recites: that the City of Mobile is a municipal corporation "located entirely within the limits of Mobile County;" that one Emanuel Clikas was tried before petitioner and convicted for violating ordinances of the City of Mobile by doing business within the police jurisdiction of that city, but outside the corporate limits thereof, without procuring privilege licenses required by said ordinance; that subsequent to his convictions, Clikas filed appeal bonds, "* * * made returnable to the Circuit Court of Baldwin County, Alabama, and based solely upon this fact said bonds were denied by petitioner;" that subsequently, Clikas applied to the Circuit Court of Baldwin County for writs of mandamus to order petitioner to approve the appeal bonds mentioned above or to appear and show cause why he should not do so; that respondent ordered the alternative writs to issue as prayed; and that by issuing the aforesaid writs respondent undertakes to exercise judicial power not conferred on him by law.
The petition filed here prays that this court will order respondent to refrain from proceeding further in the mandamus actions filed by Clikas, or to show cause why he should not do so. This court issued the rule nisi.
The respondent has filed motion to quash the rule on the following grounds:
1. Because petitioner did not present to respondent the question of respondent's lack of jurisdiction, or show lack of opportunity to so present that question, or that so presenting such objection to jurisdiction of respondent would result in "hurtful delay."
2. Because the petition filed in this court shows on its face that respondent "had the right and duty" to issue the alternative writ of mandamus in that said petition shows: that Clikas was doing business in Baldwin County; that he was tried by the Recorder of the City of Mobile for violating ordinances of that city; "that the City of Mobile lays wholly in Mobile County;" that petitioner refused to approve appeal bonds filed by Clikas solely because the bonds were returnable to the Circuit Court of Baldwin County; that § 587, Title 37, Code 1940, as amended, provides, in pertinent part:
therefore, the only court to which Clikas could appeal was the Circuit Court of Baldwin County; and, respondent was under the duty to issue the alternative writ of mandamus so as not to cut off Clikas' right to appeal.
Respondent's answer to the rule "admits the allegations of Section 1 of the Petition," which section recites in pertinent part:
"* * * That the City of Mobile, is a Municipal Corporation located entirely within the limits of Mobile County, Alabama."
The answer also sets up the proposition that under § 587 of Title 37, Code 1940, as amended, the sole jurisdiction of Clikas' appeals lies in the Circuit Court of Baldwin County and denies usurpation of authority in issuing the alternative writs of mandamus to petitioner.
The first proposition relied on by respondent in opposing the issuance of the writ by this court is the general rule that before resort is had to the extraordinary writ of prohibition, application for relief should first be made to the judge or court against whom the writ is sought, and opportunity afforded to the respondent to first pass upon objection to the jurisdiction.
Respondent has filed in this court an answer which asserts that "* * * Respondent's Court has the sole jurisdiction of the appeals of Emanuel Clikas and the failure of the Recorder to approve his bonds denied him the right to appeal;" that respondent "* * * clearly had jurisdiction to issue an alternative writ of mandamus to the Recorder of the City of Mobile;" and that "* * * this act was not a usurpation of his judicial power."
The answer, as it appears to us, plainly shows that to first raise the objection in the court of respondent would be unavailing and that this case falls within the exception noted in Ex parte State ex rel. Knight, 229 Ala. 513, 516, 158 So. 317, 320, where it was said:
The further objection that prohibition should be denied because petitioner has a remedy by appeal from the mandamus proceedings is likewise unavailing. As was observed also in Ex parte State ex rel. Knight, supra, the remedy by prohibition cannot be resorted to when an appeal will *446 lie to correct the error, but if want of jurisdiction is disclosed on the face of the petition, then the writ of prohibition will be awarded, notwithstanding the respondent may have jurisdiction in proper cases to issue writs, there of habeas corpus, here of mandamus. Appeal in such a case is said to be an inadequate remedy because if prohibition be denied, and the mandamus proceedings be permitted to go to judgment in the Circuit Court of Baldwin County, such judgment would not support an appeal for the reason that it would be void, not having been made by a court which had jurisdiction in the matter before it. 229 Ala. 513, 517, 518, 158 So. 317.
The second proposition asserted by respondent presents, as it appears to us, the real question at issue, to wit: Under § 587, Title 37, as amended, does appeal by Clikas from his conviction in the Recorder's Court of the City of Mobile lie to the Circuit Court of Mobile County or to the Circuit Court of Baldwin County? We conclude that the appeal lies to Mobile County.
Both parties appear to agree that under the statute, appeal must lie to the Circuit Court of Mobile County unless the 1955 Amendment to § 587, Title 37, quoted above has the effect of moving the jurisdiction of that appeal to Baldwin County where the transactions took place.
The quoted Code provision, by its own language, has application only "When the city is situated within two or more counties * * *." Under the facts pleaded, the city here is "located entirely within the limits" of one county, which, as we understand it, means the corporate limits of the city lie wholly within Mobile County. It also appears that the territory in which the transactions here involved took place lies within three miles of those corporate limits, although in another county.
§ 9, Title 37, Code 1940, recites:
The court judicially knows that the population of Mobile is more than six thousand inhabitants.
This court has said:
The "police jurisdiction" exercised outside the corporate limits of a city covers territory that is not a part of the corporate body of that city, but is described in the statute as "adjoining territory." § 9, Title 37, supra. The authority exercised within that adjoining territory is exercised outside the city.
We do not think it can be correctly said that a city "is situated within two or more counties," when both parties agree that the city is "* * * located entirely within the limits of Mobile County * * *," even when the corporate limits lie wholly within one county and the municipal police jurisdiction covers territory in another county. The statute does not say "When the city's police jurisdiction is situated within (or covers) two or more counties," but does say when the "city" is so situated. § 9, Title 37, Code 1940, does not, as we understand *447 it, purport to add to the city's territorial extent, but does give the city the power to exercise certain specified authority called police jurisdiction within adjoining territory. The city is not "situated within" that adjoining territory within the meaning of § 587, Title 37, as amended.
Respondent in brief argues that the legislative purpose of the 1955 Amendment to § 587, Title 37, Code 1940, is to give an appellant the right to be tried by a jury before a court in his own county; that in the case of a city lying in two counties, the appellant has an opportunity to participate in and formulate the government of the city when he resides within its corporate limits, but where an appellant resides in the police jurisdiction of a city he can only abide by the rules of a municipal government in which he has no voice. If that was the legislative intent, we must none the less conclude that such intent was not made effective by the 1955 Amendment. We can only learn what the legislature intended by what it has said. Holt v. Long, 234 Ala. 369, 174 So. 759.
Respondent insists that the 1955 Act intends that: "the appeal shall lie to the circuit court of the county where the transaction involved in the case took place," in all cases. The statute, however, limits the application of the 1955 proviso to cases "When the city is situated within two or more counties." The Circuit Court of Baldwin County is bound by that limitation, and so are we also bound. To hold otherwise is to strike from the Act the words, "When the city is situated within two or more counties." That we have not authority to do.
§ 585, Title 37, Code 1940, provides:
"* * * Such recorder is especially vested with and may exercise in the city and within the police jurisdiction thereof, full jurisdiction in criminal and quasi criminal matters * * *." (Emphasis supplied.)
In defining the territorial limits of the jurisdiction of the recorder, the legislature recognized a distinction between the city and its police jurisdiction. We have no basis for deciding that the same distinction was not also recognized in the 1955 Act.
We are not unmindful of the rule that a literal construction of the words of a statute is not to be permitted to defeat the spirit of the act and that the entire act must be considered and not merely an isolated part. Here the legislature amended a statute which had stood without material change for thirty years. The legislature saw fit to amend the statute in certain specified cases. This court is without authority to extend the amendment to cases not so specified.
Respondent states in brief as a proposition of law that the Constitution of Alabama gives Clikas the right to be tried in Baldwin County. No cases are cited and argument in support of the proposition merely repeats it and cites a section of the Constitution. We do not think this amounts to substantial argument and therefore pretermit consideration of the constitutional question.
It follows then, that the Circuit Court of Baldwin County has not jurisdiction of Clikas' appeals, had no jurisdiction to protect by the mandamus which Clikas applied for, and, therefore, the alternative writs were improvidently issued by respondent.
The writ of prohibition as prayed for is to be issued.
Writ awarded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | May 28, 1959 |
db58b0c5-b507-492b-af84-c336e1846594 | Miller v. State | 285 So. 2d 117 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 117 (1973)
In re Gene Lawrence MILLER, alias
v.
STATE.
Ex parte Gene Lawrence Miller, alias.
SC 580.
Supreme Court of Alabama.
November 8, 1973.
Samford, Torbert, Denson & Horsley, Opelika, for petitioner.
No brief for the State.
HARWOOD, Justice.
The only point asserted as error in the petition for writ of certiorari is that the opinion of the Court of Criminal Appeals, 51 Ala.App., 285 So. 2d 113, is in conflict with certain prior decisions of this court and the Supreme Court of the United States. We therefore confined in our consideration of this petition to this single point.
After reviewing the opinion of the Court of Criminal Appeals in the aspect above mentioned, it is our conclusion that the same is by and large correct in the application of governing legal principles to the facts shown in the opinion of the Court of Criminal Appeals.
We are not in accord, however, with the following statement appearing in the body of the opinion here being considered:
The above is not a correct statement of the law. Had it read: "The resulting arrest was incidental to the search, etc." (which search we add was made on sufficient probable cause), then no defect would be present. It is apparent, however, from a reading of the opinion as a whole that the transposition of the words "arrest" and "search" was a mere inadvertence.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | November 8, 1973 |
d7c37521-f1f7-4c9a-8d87-351cc7967e75 | Hawley Fuel Corp. v. BURGESS MINING & CONST. CORP. | 283 So. 2d 603 | N/A | Alabama | Alabama Supreme Court | 283 So. 2d 603 (1973)
HAWLEY FUEL CORPORATION, a Delaware corp.
v.
BURGESS MINING AND CONSTRUCTION CORP.
SC 473.
Supreme Court of Alabama.
September 13, 1973.
Rehearing Denied October 25, 1973.
*604 Stone, Patton & Kierce, Bessemer, for appellant.
Frank Dominick, Birmingham, for appellee.
FAULKNER, Justice.
This is an appeal from an order of the Circuit Court of Jefferson County, Bessemer Division, overruling appellant's motion to retax the costs. Title 11, § 77, Code of Alabama, 1940, Recompiled 1958.
On January 16, 1973, Burgess filed suit against Hawley, claiming $159,805.62. Upon appropriate affidavit a writ of attachment was issued by and under which approximately 15,693 tons of coal, owned by Hawley, located at Port Osborne on the Warrior River, was attached. The process of attachment was performed by the sheriff.
The Burgess claim against Hawley was settled for the sum of $111,185.81, which sum was paid to Burgess by Hawley. As a part of the settlement the cause was to be dismissed by Burgess, costs taxed against Hawley, and the coal to be released from attachment.
On January 25, 1973, the court issued its order dismissing the cause and taxed the cost against Hawley. Simultaneously therewith, Burgess authorized the clerk and the sheriff to release the coal from attachment.
A portion of the costs amounting to $2,416.52 was claimed by the sheriff as commissions. This amount was assessed by the clerk and was based on the amount sued for in the complaint ($159,805.62). Hawley filed its motion to retax the costs, which was overruled by the court.
Title 11, § 34, Code of Alabama, 1940, Recompiled 1958, governs commissions to be paid the sheriff for attachment of personal property, which reads in part:
The question is whether the commissions (which must be paid to the county) are to be computed on the basis of the amount sued for here ($159,805.62) or the amount in settlement ($111,185.81).
This court has construed that the word "demand" as used in this statute does not mean the amount claimed or the damages laid in the attachment affidavit, or in the complaint. It means that which the plaintiff is entitled to have the defendant pay; the amount settled for. United States Rolling Stock Co. v. Clark & Co., 95 Ala. 322, 10 So. 917 (1891); Morrow v. *605 Rosenstihl Bros., 106 Ala. 198, 17 So. 608 (1894). Demand in this case is the amount accepted and paid in settlement. Therefore, the commissions will be based and computed on the amount of $111,185.81, the amount settled for without a trial of the case on its merits.
We construe the clause "the cause is settled without suit" to mean without a trial on the merits. To attach any other meaning to the language of the legislature would be unreasonable. When construing a statute this court must look to the context, spirit, and the whole, to reach the true intent of the legislature. State ex rel. Ellis v. Griggs, 227 Ala. 681, 151 So. 850 (1933); Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921).
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | September 13, 1973 |
439f7c61-9fd8-468c-ad7b-b4a99ccd6b49 | Waters v. Cochran | 285 So. 2d 474 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 474 (1973)
Forrest E. WATERS, Jr.
v.
Shirley H. COCHRAN, Jr.
SC 180, 180-X.
Supreme Court of Alabama.
August 30, 1973.
As Modified on Denial of Rehearing November 8, 1973.
*476 Williamson & Taber, Greenville, for appellant.
Vickers, Riis, Murray & Curran, Mobile, Poole & Poole, Greenville, for appellee.
COLEMAN, Justice.
Respondent, Waters, appeals from adverse decree in suit for partnership accounting and settlement. Complainant, Cochran, has made cross-assignments of error.
In the bill of complaint, complainant avers that in the fall of 1958, he and respondent entered into a partnership agreement for the purpose of real estate development and sales; that the partners were to share equally in profits and losses; that the business resulted in a loss of more than $60,000.00; that complainant executed a deed of trust for benefit of creditors on September 1, 1961; that complainant has subsequently made payments to creditors through the trustee, and respondent has subsequently made payments to one or more creditors in partial satisfaction of partnership debts; and that complainant has made demand on respondent to pay his share of the partnership debts but he has failed and refused to do so.
Complainant prays for an accounting, that the account of each partner with the partnership be stated, that respondent be ordered to pay his share of the debts, and for general relief.
The original bill was filed in Mobile County. Respondent's plea in abatement to the venue was held sufficient and the cause was transferred to Lowndes County.
Respondent filed his answer denying that the parties entered into a partnership and other matters averred in the bill.
The court entered an order on pretrial conference held under Equity Rule 38. As here pertinent, the order states in effect that
1. The parties agree that trial is to be based on original bill and answer, respondent's defense being the general issue and statute of limitations or laches.
2. On the merits, two principal issues are to be decided: (a) Whether a partnership existed, and, if so, what percentage each partner owned; (b) If partnership existed, what partnership debts have been paid by complainant to which respondent should contribute.
3. Complainant claims there existed an equal partnership between the parties. Respondent denies that partnership existed and contends that he was an employee of complainant and had no responsibility for debts incurred in operation of complainant's business.
4. On the question of the debts of the business organization, whether or not a *477 partnership, the parties stipulated that a certain paper, entitled "Computation of Amounts Claimed on Cochran-Waters Debts," is a true and correct statement of the debts of the organization as of the time it went out of business, all of which have now been paid by complainant except one item which is not here material.
Evidence was heard ore tenus by the court. In outline, the evidence shows that complainant and respondent were fraternity brothers and roommates at college. Complainant, after leaving college, returned to Mobile. Respondent transferred to another school, and complainant visited respondent there in the spring of 1958. They discussed respondent's coming to Mobile and engaging in business with complainant. After graduation, respondent and his family moved to the Mobile area and he was employed at S. H. Cochran Furniture Company, owned by the Cochran family, as a salesman on a salary of $100 per week and a commission on sales.
In the fall of 1958, respondent went into business with complainant and two others in an insurance and real estate operation. This arrangement lasted about two months. Complainant and respondent then engaged in business under the name: "Cochran-Waters Real Estate Company." Complainant obtained a real estate broker's license and respondent obtained a real estate salesman's license. This business continued until June, 1960. It was a general real estate business engaged in sale of real estate and construction of houses. Complainant was primarily in the sales activity and respondent in the construction activity.
In June, 1960, two corporations were formed. Complainant, respondent, and another were the original stockholders. One corporation was to construct houses and the other was to sell real estate and insurance. Respondent subscribed to twenty per cent of the stock. Complainant and the third party each subscribed to forty per cent. The personal property of the alleged partnership was transferred to the corporations. Respondent contends that complainant received credit for the partnership personal property in satisfaction of his subscription for stock in the corporations. Respondent gave a note for his subscription and later paid the note. Complainant testified as follows:
"A No, that's not my testimony.
"Q What is your testimony?
"A Yes."
Respondent testified as follows:
"A Yes I did.
"A I did not.
". . .
"A Yes.
"A No."
Certain other evidence is summarized in briefs as next set out. Respondent states in brief:
Complainant states in brief:
Other evidence is hereafter referred to in consideration of the errors assigned.
Two or three months after formation of the two corporations, complainant sold his stock and went into business on his own account. He undertook to sell and did sell the properties of Cochran-Waters Real Estate Company which had not been disposed of, respondent joining in execution of the deeds, the last of which bears date of November 9, 1961.
Respondent left the Mobile area in July, 1961, and returned to Fort Deposit.
The court rendered final decree finding as follows:
1. Beginning in 1958, complainant and respondent formed a partnership and each was obligated to divide equally the profits and losses, and said partnership existed at all material times and has never been dissolved.
2. The partnership business was unsuccessful having no assets and a large indebtedness in the fall of 1961 when the partnership went out of business except for winding up its affairs.
3. The last remaining assets of the partnership were two lots which were conveyed back to the sellers in consideration for the cancellation of the unpaid purchase price.
4. All debts of the partnership were debts to third parties as stipulated in the pretrial order.
5. Complainant ascertained the amount of the partnership debts in August, 1961, and requested respondent to sign note evidencing his obligation to pay his share, but *479 he refused to do so. On September 1, 1961, complainant established a trust for creditors through which he paid all debts of partnership. Last payment was made August 14, 1969.
6. Respondent is obligated to pay to complainant one half of partnership debts paid by complainant, together with interest from date of this decree. Interest on respondent's half of the debts paid prior to the decree by complainant amounts to $12,870.53, but complainant is not entitled to recover this interest.
7. Complainant deducted, for income tax purposes, the entire losses of the partnership on his individual income tax returns, resulting in a benefit to complainant in diminished federal income taxes, which the court is of opinion should be credited against the liability of respondent to complainant.
The court decreed that the partnership be dissolved, and that respondent is indebted to complainant in sum of $41,857.19, for which judgment is rendered in favor of complainant, and, except as hereafter limited, execution on the judgment may issue.
The court further decreed that respondent may pay the judgment, with interest thereon, in thirty monthly installments and that execution be suspended for such time as respondent shall promptly make the monthly payments.
Respondent asserts that the trial court erred in allowing complainant to recover on a claim that was barred by the six-year statute of limitations.
Respondent says that a bill for accounting and settlement of a dissolved partnership must be brought within six years after the time when the partnership ceased doing business, citing Title 7, § 21, Code 1940; Bradford v. Spyker, 32 Ala. 134; Cary v. Simmons, 87 Ala. 524, 6 So. 416; Stovall v. Clay, 108 Ala. 105, 20 So. 387; and Brody v. Maril, 208 Ala. 464, 94 So. 764. Complainant agrees in brief that the governing statute is six years.
This suit was commenced by the filing of the bill of complaint on August 31, 1967. Respondent contends that there was no "partnership transaction" subsequent to August 30, 1961. The question for decision is whether under the evidence the trial court erred in finding that the suit was not barred by the six-year statute. The difficult point is deciding when the statute of limitations begins to run.
In 60 Am.Jur.2d, page 178; Partnership, § 275, the following statements appear:
In Stovall v. Clay, supra, this court affirmed a decree sustaining demurrer to a bill brought by the administrators of a deceased partner against the surviving partner *480 and heir of deceased partner. The bill was filed for the purpose, among other things, of settling the accounts of the prior existing mercantile partnership. This court said:
Thus, in Stovall, the length of time which has elapsed after "the last known co-partnership transaction" is an element to be considered in determining whether a suit for partnership accounting is barred by the six-year statute.
In Cannon v. Copeland, 43 Ala. 201, the surviving partner brought suit to recover from the estate of his deceased partner one half of the money ($45,092.52) the surviving partner had paid to extinguish the debts owed by the partnership at the time of deceased partner's death. The trial court dismissed the bill on the ground that the complainant's demand was barred by the statute of non-claim. This court reversed, saying, inter alia, to wit:
Thus, in Cannon, the "last item of the account" was considered material in determining when the statute began to run where the surviving partner was winding up the business by collecting the assets and paying the debts of the partnership.
See Riddle v. Whitehill, 135 U.S. 621, 10 S. Ct. 924, 34 L. Ed. 282, where the court said:
The court, in Riddle, cites and comments on Causler v. Wharton, 62 Ala. 358.
In brief, respondent argues to the effect that the last partnership transaction in the instant case occurred on August 27, 1961, when respondent joined in the execution of three deeds which were forwarded to him at Fort Deposit, Alabama. The deeds conveyed property which was an asset of Cochran-Waters Real Estate Company.
*481 The date of these deeds (August 27, 1961) is more than six years prior to filing of the bill on August 31, 1967.
On the other hand, copies of two deeds (dated November 9, 1961, and signed by complainant and respondent and their wives) were introduced in evidence. These two deeds describe the grantors as "S. H. COCHRAN, JR., and FORREST WATERS, JR., doing business as COCHRAN-WATERS REAL ESTATE COMPANY, a partnership, joined by their wives, ALICE K. COCHRAN and JO ANNE F. WATERS, respectively . . ."
Respondent testified that the two deeds were executed by respondent and his wife before they left Mobile and were left "strictly for the convenience of" complainant doing business.
Respondent testified that when he left Mobile he left certain documents that bore his signature, with the understanding that they would be filled out and delivered at some later date to whomever they were made out to; and that was done with his authority and consent. He testified that they were going to be delivered to "some Grantor" (sic) at a date subsequent to when he left Mobile.
An exhibit to the pre-trial order, entitled "COMPUTATION OF AMOUNTS CLAIMED ON COCHRAN-WATERS DEBTS," shows payments made by complainant on the business debts on the following dates: March 12, 1962; October 12, 1962; February 27, 1963; and August 14, 1969.
On the evidence mentioned, we are of opinion that the evidence supports a finding that "partnership transactions" did occur within six years next preceding the filing of the bill of complaint on August 31, 1967, and that "the last item of the account" is within six years next preceding the filing of the bill of complaint.
Assignment No. 11 is not sustained.
Respondent assigns as error the ruling of the trial court that at all times material hereto an equal partnership existed between complainant and respondent.
Respondent cites Watson v. Hamilton, 180 Ala. 3, 60 So. 63, wherein this court made the following statements:
Respondent contends, as we understand his argument, that the evidence will not support a finding that a partnership agreement *482 existed between complainant and respondent because there is no evidence of an express agreement that the parties would share in the losses arising out of the partnership business.
Complainant testified that he and respondent formed a partnership under the name, Cochran-Waters Real Estate Company; that the percentage of ownership was "Fifty-fifty"; that profits were to be split equally; that the partnership made construction loans; that both partners signed notes; that mortgages were executed as Shirley Cochran and Forrest Waters doing business as Cochran & Waters Construction Company; that they never discussed losses ". . . really, we didn't anticipate losses"; that the business suffered losses and never made any profits; that each partner drew a salary and expenses; that each partner had credit cards in the business name and the cards were used by both partners; they opened a checking account in the name of Cochran-Waters Real Estate Co., both partners signed the signature card; both partners signed a paper addressed to the bank and entitled "AUTHORITY OF PARTNERSHIP To Open Deposit Account And To Procure Loans"; the paper contains the following recital:
Complainant further testified that both partners signed an agreement whereby they agreed to employ one Jack E. Windham as sales manager. The agreement in pertinent part recites:
Complainant testified that he and respondent executed numerous notes and mortgages jointly as partners. A number of such instruments were introduced in evidence.
Complainant testified that he discussed with respondent the losses which had been incurred by the partnership; that they concluded that they would try to expand operations and make profits to overcome the loss; that after the partnership ceased to build houses he arrived at a figure for the total debts owed by the partnership and discussed with respondent as to how complainant would pay these debts; that complainant and respondent met in the office of an attorney; that complainant showed respondent what they owed; that respondent didn't have any money and was going to give a note for the money; that the attorney prepared the note and respondent said "`Let me think about it'" and "`I want to let my Attorney look at it,'" and "we never saw him anymore."
Respondent testified that his relation to the business known as Cochran-Waters Real Estate Company was that he was a salesman for Cochran-Waters, he was to be paid a weekly salary, and was to participate in the profits. He testified that he never had an agreement or understanding with complainant ". . . where the losses were to be divided . . .," and they never had a partnership agreement. Respondent testified that he was supposed to get one half of the profits and that was the understanding between the parties. Respondent testified that he remembered a meeting "last year" with complainant and complainant's attorneys, that respondent was asked to sign a note for a portion of the losses of Cochran-Waters but he never signed the note.
Complainant contends that evidence of an express agreement to share in the losses of the partnership is not required and that an agreement to share in losses *483 may be implied by virtue of Title 43, § 30, Code 1940, which recites:
§ 30, Title 43, Code 1940, first appeared as § 9372 of the Code of 1923. In deciding that a bill to dissolve and settle a partnership was not defective when challenged by demurrer this court said:
In Fred Gray Cotton & Gin Co. v. Smith, 214 Ala. 606, 108 So. 532, this court held that the trial court erred to reversal in refusing certain requested written charges, two of which recite as follows:
Among other things, this court said:
Both complainant and respondent testified that each was to share equally in the profits. Under Title 43, § 30, Code 1940, the Fred Gray case, supra, and the Copeland case, supra, the trial court was authorized to find an implied agreement to share in the losses. The court heard and saw the witnesses testify. Any conflict in the evidence as to the existence of a partnership presented an issue for determination *484 by the court, and the court's finding will not be disturbed unless plainly and palpably wrong. We are of opinion that the finding that a partnership existed is not due to be disturbed.
Respondent cites a numer of cases to support his argument that Title 43, § 30, Code 1940, is "merely a legislative statement of a rule of evidence, and nothing more," and does not authorize the finding of an implied agreement to share in the losses. All cases thus cited were decided prior to the effective date of § 9372, Code 1923, except the three cases next discussed and numbered (1), (2), and (3).
(1) In Woodson v. Bumpers, 224 Ala. 390, 140 So. 766, this court held that the trial court did not err in refusing the following charge:
"`. . .'" (224 Ala. at 390, 140 So. at 767)
This court said:
§ 9372 (Title 43, § 30) creates a rebuttable presumption that an agreement to share profits implies an agreement to share losses. Charge 2 in Woodson does not state that the presumption created by the statute is rebuttable. If charge 2 in Woodson be taken literally, the jury is thereby instructed that a partnership was formed even though the presumption were rebutted. In that respect charge 2 in Woodson differs from the charges in the Fred Gray case, supra, and was properly refused. The Fred Gray case is one of the citations which is cited in the opinion in Woodson but omitted in the quotation from Woodson in the instant opinion. In the first paragraph of the opinion in Woodson, in holding that affirmative charges with hypothesis were refused without error, this court said:
(2) In Ard v. Abele, 226 Ala. 611, 148 So. 318, this court affirmed a decree overruling a demurrer to a bill for dissolution of a partnership and an "accounting. Apparently, appellant had argued that the bill failed to aver facts which showed that a partnership existed in that the bill failed to show an agreement to share losses as well as profits. This court said:
(3) In Crum v. Crum, 253 Ala. 163, 43 So. 2d 392, this court affirmed a decree dismissing appellant's bill for accounting and settlement of a partnership. This court said among other things:
The three cases last discussed are not in conflict with the conclusion in the instant case that the court is not to be reversed for the asserted error in finding that a partnership existed between complainant and respondent. Assignment No. 5 is not sustained.
On the appeal the decree is due to be and is affirmed.
Complainant asserts that the trial court erred in holding that complainant is not entitled to recover interest on one half of the amount he paid on the debts of the partnership prior to the final decree. Complainant contends that the interest should begin to run from the respective dates when he made the payments and not merely from the date of the final decree.
In 66 A.L.R. at pages 22 and 23, the general rule is stated as follows:
In 60 Am.Jur.2d, page 187, the writer states:
In the instant case no fiduciary breach or improper use of funds is charged or shown.
In Grand Bay Land Co. v. Simpson, 207 Ala. 303, 92 So. 789, this court reversed for allowance of interest in a suit for accounting. One of the reasons for not allowing interest prior to the final decree is stated as follows:
In a suit for accounting between joint adventurers, this court again reversed for allowance of interest prior to final decree. The court said:
The same rule was followed in Clayton v. Monte, 248 Ala. 93, 26 So. 2d 255, where the court said:
Again in King v. Langham, 272 Ala. 662, 133 So. 2d 669, the court reversed for allowing interest prior to final decree, saying:
The trial court, in the instant case, did not err in following the authorities, supra, and not allowing interest prior to final decree.
Complainant cites Reynolds v. Mardis, 17 Ala. 32, and Turnipseed v. Goodwin, 9 Ala. 372, where the court held a partner entitled to interest on money advanced in excess of the amount other partners had contributed. In each of the two cases, there was an express agreement that each partner would contribute an equal share of the money to buy land. In the instant case there is no such agreement.
Complainant cites also Daniel v. Klein, 149 Miss. 135, 115 So. 193, wherein the court held a partner entitled to interest on one half of the money he had advanced to pay the liabilities of the partnership. The opinion does not disclose the circumstances of the case in detail, and no authority is cited to support the holding with respect to interest. That holding in Daniel v. Klein, supra, may be contrary to the holding in the instant case, but, if that be true, we are of opinion that we would not be justified in departing from the rule laid down and followed in the decisions of this court which we have cited and on which we have relied. Cross Assignments 1 and 2 are not sustained.
Complainant asserts that the court erred in finding that the deduction by complainant, on his income tax return, of the entire losses of the partnership resulted in a benefit to complainant which should be credited against the liability of respondent to complainant.
The parties have not cited nor have we found any case dealing with or similar to the question here presented.
Respondent testified that he never took any losses on his income tax return. Complainant states the facts relating to his deduction of the loss on his tax returns as follows:
The Supreme Court of Mississippi has said:
In the final decree in the instant case, the trial court found:
The deduction of the loss on complainant's tax return was not an item of debit or credit between complainant and respondent. The deduction by complainant did not deprive respondent of any right or any property. Respondent could have taken one half of the deduction on his return. Except for the passage of time, no reason appears why respondent cannot now file an amended return and claim his share of the loss if he reimburses complainant for his share of the loss. The deduction made by complainant is a matter between complainant and the United States. As to respondent, the deduction taken by complainant is res inter alios acta and had no effect on the rights of respondent. The deduction was not a partnership transaction. It is not an item of the partnership account. The court found there were no debts due from one partner to another.
According to the record, complainant has paid all debts of the partnership. He has paid the entire loss claimed on his return. As of submission of this cause respondent has not paid his half of the loss to complainant. Complainant has actually sustained the entire loss claimed on his tax return.
No sound reason suggests itself to sustain the proposition that complainant is indebted to respondent, or ought to make payment to respondent for the tax saving which accrued to complainant as the result of his claiming the loss which he actually sustained.
We are of opinion that the decree is in error in ordering that respondent be given credit, and his liability to complainant be reduced, by the amount of the tax saving to complainant which resulted from his taking the deduction for partnership loss on his tax return. On the cross appeal, the decree is due to be and is reversed. Judgment will be here rendered in such *488 proper amount as to eliminate from the account the credit allowed to respondent in the amount of $3,585.67.
The date of the decree appealed from is June 30, 1972. Complainant assigns as error the ruling of the court in staying execution of the judgment. The decree of the court here pertinent recites as follows:
". . . it is therefore ORDERED, ADJUDGED and DECREED:
". . . . . . . . . .
In considering § 508, supra, and § 119, Title 13, Code 1940, this court said:
This court has said:
In Moore v. Esslinger, 232 Ala. 251, 167 So. 328, this court considered a cause wherein the trial court had rendered a decree with judgment for money against an administrator of an estate on final settlement. In the decree, the trial judge had ordered that execution on the judgment be stayed until further orders. This court eliminated the stay provision from the decree, saying among other things:
". . .
". . .
It appears that the administrator had deposited funds belonging to the estate in the Tennessee Valley Bank which had closed its doors on March 5, 1933, had never reopened, and was in the hands of the superintendent of banks for liquidation. It may be inferred that the purpose of the stay was to save the administrator and his surety from the hardship of paying the judgment pending payments to depositors by the liquidator of the bank. This court appears to have held that such purpose was not a lawful ground to authorize the stay of execution.
In Lockhart v. McElroy, 4 Ala. 572, this court considered a petition that a judgment be superseded. The ground for supersedeas was that subsequent to issue of execution the judgment, except for ten per cent penalty, had been paid. This court said:
In Gravett v. Malone, 54 Ala. 19, this court held that a judgment quashing execution was erroneous and reversed. With respect to the grounds on which execution may be superseded, this court said:
To like effect, see Merrill v. Travis, 248 Ala. 42, 26 So. 2d 258, and authorities there cited.
The only ground on which the stay can be based in the instant case, so far as appears in the record, are the statements in the decree that financial hardship would accrue to respondent if he be required to pay in cash and the statement that complainant has paid the partnership debts in installments. We have not found in the record any averments that respondent would suffer financial hardship if required to pay in cash nor any prayer that execution be stayed.
It may be conceded that almost all judgment debtors experience hardship in paying judgments in the amount of $41,857.19.
*491 Undoubtedly, the judgment debtor in Moore v. Esslinger, supra, experienced financial hardship in paying the judgment of $4,860.34 in the years 1933 to 1936 when the entire United States suffered the financial hardship of the depression. Most natural persons undergo financial hardship in paying substantial judgments which are recovered against them.
Consider the position of the complainant in the instant case. The partnership debt as shown by the record was $90,885.72; and complainant has paid all of it, not merely that part which he himself owed but also that part owed by respondent. Is the hardship sustained by complainant of less consequence than the hardship sustained by respondent? The court has determined that respondent is indebted to complainant for respondent's share of the debt and that the debt is due.
The statute requires that execution issue. There is no insistence that the judgment has been satisfied, no allegation of fraud in procurement of the decree or otherwise, no allegation of lack of jurisdiction in the court, no undecided issue which requires that the judgment be stayed until such issue may be litigated. We do not find in the record any valid ground why execution of the judgment should be denied or delayed beyond the time fixed by law.
We are of opinion that the court erred in staying execution as ordered in the decree. The decree is corrected by elimination of the words, "except as limited hereafter," from paragraph d of the decree, and by elimination of the entire paragraph e of the decree.
Affirmed on the appeal.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, MADDOX, McCALL and JONES, JJ., concur.
FAULKNER, J., dissents.
Reversed and rendered on the cross appeal.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.
FAULKNER and JONES, JJ., dissent.
FAULKNER, Justice (dissenting).
I must respectfully dissent.
Section 701 of the Internal Revenue Code of 1954 provides that a partnership as such shall not be subject to income tax. Persons carrying on a business as partners shall be liable for income tax only in their separate or individual capacities. However, while partnerships are not subject to income taxes they are nevertheless required to render an annual return on Form 1065, Internal Revenue Service. This is in the nature of an information return. The return must be signed by one of the partners and must include the gross income and deductions allowed the partnership, and also the names and addresses of the individual partners. Furthermore, partnership remuneration is not wages subject to income tax withholding. Revenue Ruling 69-184, 1969-1, p. 256.
From the facts in this case it appears that no partnership returns were ever filed; that Waters was paid a salary. He filed withholding tax forms. There was withheld income and social security taxes from his salary. And, his salary was a deduction on Schedule C (Income from Business and Profession) of Cochran's individual 1040 return. When a deduction taken on Cochran's individual return for business losses is added to the above facts, the result appears to be that Cochran did not consider himself a partner of Waters.
I further find from the facts that Cochran acted on the advice of a C.P.A. on his tax matters. There may be exceptions, but generally a C.P.A. is presumed to know which tax returns must be filed for his client. It is therefore logical to assume that if a valid partnership existed between Cochran and Waters, he would have filed the proper returns for the partnership. And, it can be further assumed that no C. P.A. would have reported gross income or *492 loss from a partnership on Schedule C of an individual return, Form 1040.
There do not appear to be any books of original entry setting up the alleged partnership; no balance sheets; no profit and loss statements for the years of the partnership. There doesn't appear any statement or entry showing what the net worth beginning and endingof each partner was. These are gross omissions of evidence to hold that a valid partnership existed.
I assume that under the majority opinion as to both parties, any sum paid by Waters to Cochran should be a deduction for state and federal tax purposes to him, and should be ordinary income to Cochran.
I would hold that no valid partnership ever existed and therefore pretermit discussion of the other issues of this case.
JONES, Justice (dissenting as to the cross appeal).
I would affirm as to the direct appeal and the cross appeal. I concur with the majority opinion on the issues presented on direct appeal since I believe that there was sufficient evidence from which the trial court could find the existence of a partnership. I must respectfully dissent, however, with respect to the cross appeal since I am also of the opinion that there was sufficient evidence justifying the trial court's holding allowing credit to the respondent in the amount of $3,585.67. It seems to me that the equitable principle of unjust enrichment would suffice to sustain the trial court's finding and order in this respect.
Application for rehearing denied.
Decree corrected.
Opinion modified.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur. | November 8, 1973 |
ca0bfe02-28d9-45d6-91cd-132ca2a5fc10 | Alidor v. Mobile County Commission | 284 So. 2d 257 | N/A | Alabama | Alabama Supreme Court | 284 So. 2d 257 (1973)
Gary P. ALIDOR
v.
MOBILE COUNTY COMMISSION et al.
SC 522.
Supreme Court of Alabama.
September 27, 1973.
*258 Gary P. Alidor, pro se.
Maury Friedlander, Mobile, for appellees.
MERRILL, Justice.
This is an appeal by a taxpayer in Mobile County from a decree denying the taxpayer-plaintiff's prayer for an injunction and dismissing the complaint with prejudice.
The plaintiff sought to enjoin the Mobile County Commission and the individual members thereof from taking any action whereby the County would sell $4,500,000.00 in the principal amount of Road, Bridge and Drainage Facilities Bonds and to pledge as payment the proceeds derived from the special ad valorem tax authorized to be levied by the County under the provisions of Amendment XVIII to the Constitution of Alabama, as last modified and amended (relating to Mobile County Road Bonds), including the increase to 5½ mills in the rate of the special tax resulting from the application of the Amendment to the Constitution that was proposed by Act 116, passed at the Third Special Session in 1971, amending Section 217 of the Constitution, adopted on May 30, 1972, and proclaimed ratified on June 8, 1972, and known as the Classification Amendment. This Amendment divides all property in the state into three classes and provides for the assessment thereof at the following ratios of assessed value to fair and reasonable market value: Class I. Property of utilities30%, Class II. All property not otherwise classified25%, Class III. Agricultural, forest and residential property15%.
Plaintiff alleged that a sale of the proposed bonds would be illegal because the County did not have the lawful authority to levy the special ad valorem tax at said increased rate.
Defendants filed an answer and cross bill and issue was joined.
The facts are those set out in the complaint that are admitted by the answer, those set out in the cross bill that are admitted in the answer thereto and the testimony of the Tax Assessor of Mobile County in the form of an affidavit and stipulated by the parties. The trial court denied the injunction and dismissed the complaint.
The taxpayer contests many rulings of the trial court in brief. Inasmuch as we are affirming the decree of the trial court, we are not treating the questions as fully as they are treated in the decree which requires 35 pages in the transcript. We proposed to mention and comment briefly on the points, but the few who might be particularly interested would be better informed if they secured a copy of the decree of the trial court.
The assignments of error charge that the trial court erred in refusing the injunctive relief and in dismissing the complaint. We follow the order of appellant's brief in our consideration of the matters argued on appeal.
*259 1. Amendment CCCI.
The appellant argues that the trial court did not comply with the provisions of Amendment 301, which pertains to Mobile County, and relates to the division of proceeds from special taxes levied in that county. The trial court held that Amendment 301, "having been improperly submitted, as aforesaid, is, therefore, not a part of the Constitution of Alabama, as amended, * * *" and that holding is supported by the cited case of Hooper v. State, 206 Ala. 371, 89 So. 593.
The reason for this holding is that the Act submitting the proposed amendment, Act 406, Acts of Alabama 1969, Vol. 1, p. 796, provided in § 2 that:
At the election held on December 16, 1969, a majority of the electors of the state ratified the Amendment but a majority of the voters of Mobile County voted against it. On January 25, 1973, the Attorney General issued an opinion that the amendment was "not effective or operative in the (Mobile) county." It was stipulated that no other elections had been held in Mobile County on the question.
The trial court held that the amendment was submitted in such a way as to make its effectiveness depend upon ratification by the electorate of the state and the electorate of Mobile County.
In Johnson v. Craft, 205 Ala. 386, 87 So. 375, this court said:
Therefore, when Act No. 406 made ratification dependent on the electorate of Mobile County, it added a "body" not permitted by the Constitution and the Act was rendered inefficacious, even though the amendment was ratified, because it contained an unconstitutional condition. We, as did the trial court, note that this case is distinguishable from Swaim v. Tuscaloosa County, 267 Ala. 509, 103 So. 2d 769, because there, the condition that the voters of Tuscaloosa County must ratify the amendment was included in the amendment itself and not in the Act submitting it as here. This court said that "the amendment itself stated that if a favorable vote is given it by the electors of Tuscaloosa County voting in the election on the amendment, then such a subsequent election will be unnecessary"; and since a majority in Tuscaloosa County did vote for the amendment, "the county may issue its bonds under the amendment without incurring the additional time and expense of holding such a subsequent election," and upheld the validity of the amendment.
We agree that Amendment 301 was not operative or effective in Mobile County.
2. Tax Assessor's Report of February 7, 1973.
The Classification Amendment, Section 217(d) states that when the tax assessor has completed the assessment book "for the ad valorem tax year immediately following the adoption of this amendment * * * he shall certify to each authority * * * the amount of ad valorem tax that will be produced * * *."
*260 The tax assessor, in an obvious attempt to comply with this section, sent a document to the county commission in which he said, "I wish to report to you the following:" Appellant argues that a "report" is not a "certificate" and is not in compliance with Section 217(d), and furthermore, that the report did not give "the amount of ad valorem tax [to] be produced." Actually, the report stated that the county would lose 13.5% of its assessed value based on the assessed value of the same property as it was assessed for the year 1972.
Appellant contends that the failure to "certify" and to state the "amount" was a fatal noncompliance with the constitutional requirements. The trial court held that there was no merit in these contentions and that the "report" substantially met the requirements of the Classification Amendment.
It has been held (1) that a certificate of a public officer is a written statement and signed, but not necessarily nor usually sworn to, State v. Abernethy, 190 N.C. 768, 130 S.E. 619; (2) to "certify" is to testify to in writing; to make known or establish as a fact. "The word is not essential to a certificate." Cook v. Ziff Colored Masonic Lodge, No. 119, 80 Ark. 31, 96 S.W. 618; (3) a signed written statement that fails to state, "It is hereby certified" nevertheless "complies with the meaning of the word `certificate,' and is therefore a certificate in substance, and that is sufficient." State v. Schwin, 65 Wis. 207, 26 N.W. 568.
While the "amount" would have been more appropriate than the percentage given in the report, only a simple arithmetical procedure was necessary to get the correct amount. We find no reversible error in the trial court's holding on these matters.
3. Report of February 7, 1973 Premature.
Appellant states in brief:
Appellant argues that the final determination as to market value could not be made until objections are heard by the Board of Equalization, which hearings begin in June of each year, Tit. 51, § 107; and the assessments complained of here were reported to the governing body of the county in February.
It must be remembered that the Classification Amendment provided for an adjustment of the loss of revenue to the county (or a city) under the new classification. It is easily understandable that if residential, agricultural and commercial property had been previously assessed at 30% of its value, the reduction to 15% and 25% would be a rather serious financial loss to the county. The amendment provided for this adjustment in subsection (d) as follows:
It is obvious that when, in his "report" or "certificate" of his estimate of a loss of 13.5% on February 7, the tax collector was trying to give the county governing body all the time he could to make the adjustment allowed by the amendment. Time was of the essence because this was a "one *261 time" adjustment and had to be made before October 1, 1973, or never.
The evidence shows that the tax assessor had completed the assessment and that the Board of Equalization had complied with Tit. 51, § 104, which required the Board to "review, revise, correct and fix the assessment values made by the tax assessor."
It is conceded that the Board of Equalization had not heard the objections to the assessments scheduled for June, and we agree with the trial court that this was not necessary.
It is common knowledge that exceptions to assessments occur in a very small percentage of assessments (there were only 518 in Mobile County); and it is possible for an objecting taxpayer to carry his appeal to this court if dissatisfied with the result of his appeal to the circuit court. Appeals take time and the appeal procedure could delay the finalizing of all the assessments for over a year. But the amendment required the adjustment to be done in 1973. To hold that all assessments had to be final before the adjustments could be made would allow one taxpayer to nullify the last two sentences of subsection (d). Such a conclusion would be unreasonable and we do not think that such an intention can be attributed to the Legislature which proposed the amendment or to the people who ratified it.
4. Millage Increase Covers Subsequent Year.
Appellant also argues that the "one time" adjustment could apply only to that one tax year (1973) and to no subsequent years.
Constitutions are made for practical purposes and look to practical ends, and in construing them, we are to take into consideration the conditions which confronted the Constitution-makers, and, if possible, give the instrument such construction as will carry out the intention of the framers, and make it reasonable rather than absurd. Houston County Board of Revenue v. Poyner, 236 Ala. 384, 182 So. 455; Tucker v. State, 231 Ala. 350, 165 So. 249.
Courts will attempt to give meaning to a legislative enactment and it is presumed that the Legislature did not do a vain and useless thing. In re Opinion of the Justices, 267 Ala. 114, 100 So. 2d 681; Haralson v. State, 260 Ala. 473, 71 So. 2d 79, 43 A.L. R.2d 1343.
To hold that the special millage tax adjustment is good for only one year would render the adjustment provision of the amendment absurd and unreasonable. The millage adjustment must be applicable as long as bonds of the county are outstanding for payment of the principal and interest on which the special tax may lawfully be levied.
5. Automobiles and Utilities.
Appellant complains that the tax assessor did not take into consideration the amount of any difference in the assessed valuation of motor vehicles and utilities in presenting his estimate. Since motor vehicles are assessed for the preceding tax year, it was not possible for the tax assessor to know that exact figure until the beginning of the next tax year.
As to utilities, Tit. 51, § 175 provides that such property is assessed by the State Department of Revenue, and that assessment is not required to be fixed until "the first day of July, or as soon thereafter as practicable." Not only would this be late for the adjustment, but the court found that the 1972 utilities' assessment by the Department of Revenue was based on 30% and under the amendment it was still 30%, so there was no change in the rate so far as utilities were concerned.
6. Resolution Levying the Tax.
We come now to the contention that the resolution of the Mobile County Commission, adopted in February, 1973, levying the ad valorem tax, is deficient in that it did not contain express language ordering the maximum permissible rate at which the *262 special tax would be levied for the current and subsequent years, and also, that in reciting the authority under which the county commission was proceeding, no reference was made to the Classification Amendment.
The opinion of the trial court sets out pertinent parts of the resolution and then discusses this contention, and states that the omission "* * * is the result of a clerical error in the drafting of the resolution that is self correcting, cf. Ex parte Roberson, 123 Ala. 103, 26 So. 645; Ex parte Biddle, 258 Ala. 190, 61 So. 2d 803. In addition to said self correcting error of omission, said resolution also contains a self correcting error of commission, i. e., the words `Section 71 of Title 51, Code of Alabama, Recompiled 1958' in the third paragraph thereof quoted above should read `the Classification Amendment'."
Actually, the reference to "Section 71 of Title 51," is appropriate to the time the levy was made because it provides in pertinent part:
It is obvious from the resolution that the commission was acting under the Classification Amendment and we find no reversible error in the trial court's holding that the omissions were self-correcting.
7. Public Hearing.
Appellant contends that no public hearing was held by the commission as required by subsection (e) of the amendment. As already pointed out, subsection (d) permits an adjustment at the one designated time, "in the ad valorem tax year immediately following the adoption of this amendment." Subsection (e) allows for future increases in the rate subject to certain conditions, one of which is a public hearing. Each of these subsections deal with separate matters and the conditions in (e) have no bearing on the millage adjustment authorized under (d).
8. The Estimate of the Tax Assessor.
Appellant argues generally that the estimate of the tax assessor does not comply with the Classification Amendment. The amendment requires him to do the estimating and the evidence is without conflict that he did it based upon the facts before him at a time prior to the time for the commission to levy special taxes and complete enough to give the necessary financial status to the commission.
The courts will not grant an injunction against a public official or a public body when to do so would involve a review of their judgment which is not arbitrary, made in bad faith or in the exercise of fraud, whether it be a mandatory injunction or a restrictive injunction. Huddleston v. Humble Oil & Refining Co., 260 Ala. 384, 71 So. 2d 39; Terrell v. Marion County, 250 Ala. 235, 34 So. 2d 160; Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So. 2d 339; State v. City of Mobile, 248 Ala. 467, 28 So. 2d 177. There is no charge and no evidence that any action of commission or omission on the part of the tax assessor in this matter was either arbitrary, made in bad faith, or in the exercise of fraud.
This applies to any other discrepancies of form rather than substance which may have been mentioned in brief but not noted in this opinion, such as not making an assessment list in alphabetical order. This could not affect the estimate he was required to make under the Classification Amendment.
The trial court did not deem it necessary to respond to the cross bill and that action is not raised on this appeal.
Affirmed.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | September 27, 1973 |
7ab2db83-2ee7-44f1-9d17-3ef6896684dd | Owen v. McDonald | 285 So. 2d 79 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 79 (1973)
Lloyd R. OWEN
v.
Norman Gale McDONALD and Jones Ferrell.
SC 313.
Supreme Court of Alabama.
October 25, 1973.
*80 Hartwell B. Lutz, Huntsville, for appellant.
Bell, Richardson, Cleary, McLain & Tucker, and L. Tennent Lee, III, Huntsville, for appellees.
FAULKNER, Justice.
Lloyd R. Owen appeals from a judgment in favor of the defendant, Norman Gale McDonald, in a suit in the Circuit Court of Madison County, for the wrongful death of his three-year-old daughter, Deanna Jo. The suit was brought under the provisions of Title 7, § 119, Code of Alabama 1940, Recompiled 1958.
The complaint consisted of one count alleging simple negligence. McDonald pleaded the general issue and contributory negligence on the part of Mrs. Owens, for negligently allowing the child to play in or about the street where the fatality occurred.
There is one assignment of error argued on this appeal. The error assigned is that the trial court refused to give the following written charge requested by Owens:
The evidence as shown by the record was that on March 17, 1971, Deanna Jo Owen, age three years, was playing with her seven-year-old brother in the front yard of the Owen home on Sparkman Drive, Huntsville, Alabama. She crossed the street to a vacant lot. At some point in time she started running back toward Sparkman Drive, which runs in an eastwest direction. McDonald, who was driving a pickup truck in an easterly direction along Sparkman Drive, testified that when he saw the child she was approximately 20 feet from the point of impact. She was in the area of the curb and was running in a northerly direction to cross the street. McDonald testified that he was traveling at a speed of 25 miles per hour. He immediately locked his brakes and "as I did that I knew I couldn't stop, so I released the brakes and tried to swerve . . . to the right which would be to the south. . . at that moment the truck hit the child." The mother of the child testified that she was unsure whether she saw her daughter running first or saw the truck first; that she estimated the distance of the truck from her daughter as being only *81 a "few yards" when her daughter began to run. Another witness, Mrs. Pinson, testified that the whole thing happened "very quickly" and that the truck was there as the child "hit the street." "I was looking at her and about the time she hit the street the truck was there." There is no conflict of evidence as to the closeness of McDonald's truck to the point of impact as the child ran out on the street. There was no evidence introduced directly or indirectly from which an inference could be drawn that had McDonald attempted to swerve to his left, gone straight, or swerved in any other direction, he would have been able to avoid striking the child. No evidence was introduced that McDonald could have stopped the truck within a few feet after the child came into a position of peril discovered by McDonald. There was no evidence that McDonald did or did not blow his horn when he saw the child in the vicinity of the curb running toward the street, although the trial court did charge the jury on the provisions of Title 36, § 58(17), Code of Alabama 1940, Recompiled 1958.[1]
Under our system of pleading, subsequent negligence can be the basis of recovery under a count charging simple negligence. Shepherd v. Johnson, 268 Ala. 69, 104 So. 2d 755 (1958); Lemons v. Allison, 265 Ala. 347, 91 So. 2d 236 (1956). However there must be some evidence requiring an instruction on subsequent negligence. In Scotch Lumber Company v. Baugh, 288 Ala. 34, 256 So. 2d 869 (1972) this court held that:
In this case we apply the rule set out in Norwood Transportation v. Bickell, 207 Ala. 232, 92 So. 464 (1922). The doctrine of subsequent negligence on the part of the plaintiff or defendant is not to be applied in a case where the manifestation of peril and the catastrophe are so close in point of time as to leave no room for preventive effort. Johnson v. Coker, 281 Ala. 14, 198 So. 2d 299 (1967).
We can find no evidence in the record that would have required the giving of the requested written charge.
Affirmed.
HEFLIN, C. J., and MERRILL and HARWOOD, JJ., concur.
MADDOX, J., concurs in the result.
[1] "§ 58(17). Drivers to exercise due care to avoid pedestrians.Notwithstanding the foregoing provisions of sections 58(14) to 58(16) every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. . . ." | October 25, 1973 |
eb167e61-ce2d-49d2-aaeb-7f9a4305f67e | Williams v. State | 282 So. 2d 905 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 905 (1973)
Jessie WILLIAMS
v.
The STATE of Alabama.
SC 519.
Supreme Court of Alabama.
September 13, 1973.
*906 Howard A. Mandell, Montgomery, for appellant.
William J. Baxley, Atty. Gen. and Kent Brunson, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
"No, sir, I never totes a knife" and "If you live by the sword you will die by it." Thus saith Jessie Williams in his own defense at his trial on a charge of murder. Eye witnesses overwhelmingly disproved Williams' prophetic statements.
Williams was indicted by the grand jury of Montgomery for murder in the first degree. He was tried by a jury and convicted of murder in the second degree. He was sentenced to 10 years in the State penitentiary. He appealed to the Alabama Court of Criminal Appeals. On September 5, 1973, this case was transferred to this court.
There was a gangland down at the Jazz Box in Montgomery on September 11, 1971. Bricks were thrown, the cold steel of knife blades flashed, garbage cans were used as a "knight's shield," and human fists swung in the savage fight. When it was over, Carl Lee Thompson, who appears not to have participated, lay dead on the concrete steps of a house where he had retreated to seek refuge from his assailants. There were nineteen knife wounds about his head, face, and body.
The State's eye witnesses placed Williams at the scene of the crime and testified that he was one of the participants who stabbed Thompson with knives. There was no evidence that Williams acted in self defense. The record is replete with evidence that this was nothing more than a gang killing resulting from an argument outside the Jazz Box between persons other than Williams. Thompson was inside when the argument began. He left, walked up the street, and when he returned, a fight had started. As he approached he was knocked down and stabbed by a number of persons, including Williams.
Williams, on this appeal, says that the trial court erred in instructing the jury that it could presume the malice required from the use of a deadly weapon without qualifying the instruction with the words "unless the evidence which proves the killing rebuts the presumption."
The trial judge did not err. Where no inference was deducible from the evidence that Williams acted in self defense or that his stabbing the decedent was the result of sudden passion engendered by sufficient provocation, and without malice, the trial court was not required to add to his charge that malice is presumed from the use of a deadly weapon the qualifying words "unless the circumstances of the killing disprove malice." Baker v. State, 33 Ala.App. 596, 36 So. 2d 239, cert. denied 251 Ala. 65, 36 So. 2d 241.
*907 The next alleged error in the brief of Williams is, "The under representation of black persons on the Montgomery County jury roll compels reversal of appellant's conviction." This issue is raised for the first time on appeal. It was not raised at any stage of the proceedings below. There is no evidence, or pleading, pertaining to this issue in the record. Therefore, there is nothing for this court to review on this alleged error.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | September 13, 1973 |
f7e99479-4135-4301-9fbf-df04bab2a855 | Nixon v. State | 286 So. 2d 315 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 315 (1973)
In re Eddie NIXON, alias Edward "Edwierdo" Nixon
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 311.
Supreme Court of Alabama.
September 6, 1973.
William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.
*316 David L. Thomas, Huntsville, for respondent.
MADDOX, Justice.
Defendant was indicted on October 2, 1970, for possessing, transporting, delivering, selling, etc., seven tablets containing Lysergic Acid Diethylamide (LSD-25). He was convicted of possession of LSD in a trial by jury in the Madison Circuit Court on October 23, 1970.
On appeal to the Court of Criminal Appeals, the judgment of conviction was reversed, that court holding that the trial court committed reversible error in overruling the defendant's motion to quash the jury venire.
It is clear from the opinion of the Court of Criminal Appeals and from an examination of the original record[1] that the Court of Criminal Appeals held that the trial court "committed reversible error in overruling the motion to quash without giving the movant an opportunity to be heard and submit evidence." We think the Court of Criminal Appeals erred in reversing the trial for at least these reasons: (1) the defendant did not ask for any relief or for an opportunity to be heard; (2) the order of the trial court denying the motion states that the motion "came on to be heard" and (3) the presumption is in favor of the regularity of proceedings surrounding the selection of the jury venire, in the absence of proof to the contrary, or an offer of such proof.
The Court of Criminal Appeals admits that the defendant made no prayer for any specific relief in his motion to quash.
The motion to quash does not contain a request to be heard and present evidence. While the record does not show that a hearing was held, the record does not show that a hearing was not held. In fact, the order of the trial court denying the motion to quash states as follows:
The Court of Criminal Appeals held that one of the grounds of the motion alleged that the venire did not represent a cross-section of the citizens of Madison County, and that this Court held on September 3, 1970 that the system employed by the jury commission of Madison County in selecting jurors to be enrolled then in effect and followed did not meet the mandates of law. State, ex rel. Gregg v. Maples, 286 Ala. 274, 239 So. 2d 198 (1970). The Court of Criminal Appeals held:
There is a presumption that no legal fraud exists in the system used for the selection of jurors, in the absence of proof to the contrary, or an offer of such proof. Smith v. Louisville & N. R. R., 219 Ala. 676, 123 So. 57 (1929). It is apparent that the defendant did not present any proof or offer to present proof of the allegations made in his motion to quash.
Consequently, the judgment of the Court of Criminal Appeals is due to be reversed.
Reversed and remanded.
MERRILL, HARWOOD, BLOODWORTH, McCALL, FAULKNER and JONES, JJ., concur.
HEFLIN, C. J., and COLEMAN, J., dissent.
[1] Where there is no dispute about the facts, the Supreme Court may examine the record for a more complete understanding of those features of the record which were treated in the opinion of the court of appeals. Donahay v. State, 287 Ala. 716, 255 So. 2d 599 (1971); Griffin v. State, 287 Ala. 574, 253 So. 2d 340 (1971). In the instant case, the Court of Criminal Appeals found that the defendant's motion to quash the venire, which was overruled without a hearing, "did not seek specific relief." Looking to the record for a more complete understanding of this factual finding, we find that the motion consisted of the following:
"MOTION TO QUASH JURY VENIRE AND FOR CONTINUANCE
"Comes now the Defendant, George Edward Nixon, by and through his attorney and shows to this Honorable Court that said action is set for jury trial before this Honorable Court on the 19th day of October, 1970, and further says and avers to this Honorable Court as follows as grounds for the relief hereinafter prayed for, separately and severally ...."
There follow twenty grounds of said motion and the signature of defendant's attorney. At no point in said motion does defendant seek any relief, general or specific. | September 6, 1973 |
7a229503-9a04-4ad2-965d-cb84482fdd3e | Varner v. Carr | 286 So. 2d 294 | N/A | Alabama | Alabama Supreme Court | 286 So. 2d 294 (1973)
William VARNER, Jr., et al.
v.
Bessie CARR et al.
SC 120.
Supreme Court of Alabama.
October 25, 1973.
Rehearing Denied December 13, 1973.
Jones, Murray, Stewart & Yarbrough, Montgomery, for appellants.
Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellees, Ocie Levett, Willie Lue Levett, R. F. Newman, Wallace Farr, R. F. Newman, Inc. and Alabama Wood Products, Inc.
FAULKNER, Justice.
This is an appeal from a decree of the Fifth Judicial Circuit of Alabama establishing a boundary line between the parties.
Appellants' predecessors in title conveyed to them the west half of the northwest quarter of Section 3, Township 16 North, Range 25 East, in Macon County, Alabama. Ocie Levett's predecessors in title conveyed to him the eastern half of the northwest quarter of Section 3, Township 16 North, Range 25 East, in Macon County, Alabama. According to the deeds there was no dispute of the boundary line. However, there arose between the landowners a dispute as to the physical location of the north-south boundary line.
Ocie Levett took possession of the land in 1942. When it was conveyed to him, the land was surveyed by a Mr. Pickett. Pickett placed a concrete marker at the northwest corner of the Levett land. He ran a southerly line and placed an iron pipe at the southwest corner of Levett's land. Subsequent to Pickett's survey, a Mr. Crump surveyed Ocie Levett's land and concluded that Pickett's survey was correct. Crump placed a concrete post at the southwest corner of Levett's land. Subsequent to the Crump survey, Levett's land was again surveyed in 1971 by Philip Fretwell Associates. The northwest and southwest corners were reconfirmed at the concrete markers placed by the previous surveyors. These concrete markers were in place at the time of the trial.
Ocie Levett testified that he had always claimed the land up to the line between *295 these markers. Appellants contended that a fence east of the line between the concrete markers was the boundary line; that this fence was on or near the midline in a north-south direction. Ocie Levett's evidence was that he did not recognize the fence as a boundary line between the parties. The land between the fence and the markers appears to have been in dispute for many years. Timber cutting by appellants on the land west of the disputed property and on the disputed property had been stopped by Ocie Levett. Appellants had invited Levett to institute a "friendly lawsuit" to adjudicate the title to the property in dispute. The appellants had their own surveyor, a Mr. Sizemore, survey the land. His opinion was that the fence was the correct boundary line. Appellants further contend that they obtained title to the disputed land by adverse possession. Appellants' evidence tended to show that the disputed land had been rented to various tenants for over thirty years. The tenants had farmed the land, run cattle over it. A witness for appellants testified that Levett was told that the fence was the boundary but that he was welcome to cut firewood and hunt on the land west of the fence. Levett testified to many acts inconsistent with such adverse possession claimed by appellants. The tax assessor testified that the lines between Township 16 and Township 17 do not abut and are not standard; that there is a "dog-leg" between them and because of this the area had been surveyed many times. There was also testimony that Levett did not claim an area of land called the "fox field"; that Levett was awarded the land by the trial court's decree. The record does not show where the fox field is located. As a matter of fact, the record does not have with it all records referred to in the trial. Specifically missing is an aerial photograph to which witnesses referred and the tax assessor's records. We cannot review evidence that is not in the record. Barnett v. Millis, 286 Ala. 681, 246 So. 2d 78 (1971); Eaton v. Shene, 282 Ala. 429, 212 So. 596 (1968).
The trial court established that the boundary line between the parties in a north-south direction is as shown on the map or plat of the survey prepared by Philip Fretwell Associates, bearing the date of February 10, 1971, after hearing the case ore tenus.
A decree of the trial court will not be reversed in a suit to establish a boundary line unless it is palpably wrong and contrary to the great weight of the evidence. Deese v. Odom, 283 Ala. 420, 218 So. 2d 134 (1969); Lovelace v. McMillan, 265 Ala. 290, 90 So. 2d 822 (1956); Butts v. Lancaster, 279 Ala. 589, 188 So. 2d 548 (1966). Also, this court has held that a decree establishing a boundary line need not be supported by a preponderance of evidence. If the decree is supported by credible evidence, it should be affirmed. Edwards v. Farmer, 285 Ala. 118, 229 So. 2d 507 (1969).
There were conflicting surveys in this case as well as other conflicting testimony of the witnesses appearing before the trial court. The trial court heard the evidence ore tenus and established a boundary line. It was his duty to do so. He had to make a decision. Sims v. Sims, 273 Ala. 103, 134 So. 2d 757 (1961); McLaurine v. Knowles, 257 Ala. 8, 57 So. 2d 543 (1952). We have made a diligent search of the record, from which it does not appear that the boundary line as established by the court is palpably wrong. The decree of the trial court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | October 25, 1973 |
690181c0-8052-4556-8f8e-724187c80615 | State Ex Rel. Kernells v. Ezell | 282 So. 2d 266 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 266 (1973)
STATE of Alabama on the relation of Charles KERNELLS
v.
Mark EZELL, Individually and as Probate Judge of Choctaw County, Alabama, and Juanita Wheeler, Intervenor.
SC 462.
Supreme Court of Alabama.
September 6, 1973.
*267 Irvin J. Langford, and John L. Lawler, Mobile, for appellant.
William L. Utsey, and W. H. Lindsey, III, Butler, for appellee.
BLOODWORTH, Justice.
This is an appeal from an order and judgment of the Circuit Court of Choctaw County, Alabama, granting appellees' motion to dismiss appellant's amended petition for writ of mandamus, which sought to compel appellee as Probate Judge of Choctaw County, to allow appellant, a citizen and taxpayer of that county, to inspect a petition for a local option liquor referendum for Choctaw County.
The single assignment of error charges that the court erred in dismissing appellant's amended petition for writ of mandamus. The basic issue before us on this appeal is whether appellant was entitled to inspect the petition or whether the probate judge was correct in denying such request. This court has concluded that appellant is entitled to such inspection, and that the judge of the court below was in error in granting the appellee's motion to dismiss the appellant's amended petition for writ of mandamus.
It appears from the petition, as amended, that appellant is over the age of twenty-one years, a bona fide resident citizen and a duly qualified elector and voter of Choctaw County, Alabama, as is the appellee, who is the probate judge of that county. The petition further alleges that on June 13, 1973, there was filed in the probate court a petition for a local option liquor referendum for Choctaw County, under an act [Act No. 1266, Acts of the Legislature 1971, Vol. III, p. 2195] which requires that a referendum be held provided 25% of the registered voters of the county sign a petition, which is then filed with the probate judge. It is further averred that the appellant on the 26th day of June, 1973, did present himself at the office of the appellee probate judge and did present a written request, as chairman of a committee called "Concerned Citizens for Truth of Choctaw County," that he be permitted to examine the petition requesting the referendum. Said written request was denied in writing by the probate judge. It is further averred that appellant requested examination of the petition for the referendum in order to determine if it contained the names of sufficient qualified voters and that he made known his purpose to the appellee probate judge. The petition concludes that the act of the probate judge in refusing permission to examine the petition, which is a public record, is improper, erroneous, without just cause and without any legal right on the part of the probate judge to refuse to allow appellant to examine the petition. The petition *268 prays for an alternative writ of mandamus or rule nisi ordering and commanding the probate judge to forthwith allow appellant to inspect the petition. Pursuant to the prayer of the petition, the circuit judge entered an order directing the clerk to issue the alternative writ of mandamus returnable July 10, 1973. After a hearing on July 10, 1973, the circuit judge discharged the alternative writ of mandamus and granted the motion to dismiss the petition for writ of mandamus, taxing the costs against the appellant. This appeal then followed.
It is the appellant's contention that the following code section (Title 41, § 145) gives him the right to inspect the petition in this cause, viz:
There is no statute of which we have been apprised, by brief or our research, expressly providing otherwise; thus, it would clearly appear that this statute will allow the inspection of the petition by appellant.
This conclusion is strengthened by the decision of this court in Scott v. Culpepper, 220 Ala. 393, 125 So. 643 (1930). There, the question was presented as to the right of a citizen of Cullman County to obtain a certified copy of a death certificate entered in the record books of the local register of precinct number one of that county. This court held that the death certificate, a copy of which was demanded, had been filed with the local registrar and was entered in his record book. Since the local registrar was at that time the custodian, and since it could not be doubted that such record did constitute a "public writing" within the influence of then Section 2695 [now Title 41, Section 145, Code of Alabama of 1940, as recompiled 1958], this "public writing" was held to be subject to inspection by any citizen and a certified copy due to be given him upon demand and payment of the legal fee therefor. The code section and this case would seem to be ample authority for concluding that in the instant case appellant has the right to examine the instant petition.
Moreover, the following code section appears at Title 13, § 292, Code of Alabama 1940, as recompiled 1958, in a chapter dealing with probate courts, viz:
It would appear to be the public policy of the State of Alabama, as reflected by this section, that all of the records of the office of the probate judge must be free for examination of all persons, whether interested in the same or not. Whether the petition in the instant case is included within the term "records," we need not decide. For, there are other sections of the code dealing with the duties of the probate judge which would seem to indicate the public policy of the state is to give access to "books" and "papers" as well as "records."
Title 13, § 280 reads, in part, as follows:
"It is the duty of the judge of probate: "* * *
"* * *
*269 Though we have not found, nor has there been cited to us, a case in Alabama dealing with the question as to whether one should be permitted to inspect a petition for a liquor referendum, this precise question was before the Supreme Court of Montana in State ex rel. Halloran v. McGrath, 104 Mont. 490, 67 P.2d 838 (1937). There, an elector was held entitled to inspect petitions for a liquor referendum while in possession of the county clerk and recorder, regardless as to whether such petitions constituted public records or not, in view of a statute authorizing inspection of public records and other matters in the office of any officer. The Montana Code section with which the court there dealt is identical to our Title 41, Section 145, supra. The Montana Supreme Court issued the pre-emptory writ of mandamus prayed for upholding the right of the citizen in that case to inspect the petitions for the referendum.
In the instant case, it seems clear that the appellant is entitled to inspect this "public writing" in the hands of the probate judge, namely, the referendum petition, and that the trial court was in error in sustaining the motion to dismiss the petition for mandamus and in discharging the alternative writ under the allegations as disclosed by the petition.
Appellant has shown "* * * a clear right to demand the performance of a legal duty by one who is so required to perform such act", as authority well established in this state requires to be done before one is entitled to mandamus. Holcombe v. State, 240 Ala. 590, 200 So. 739 (1941). There is no merit in appellee's contention that to allow the appellant "* * * to see the petition would be the same as allowing him to see a person's vote," citing State ex rel. Daily Gazette Company, et al. v. Bailey, et al, 152 W.Va. 521, 164 S.E.2d 414 (1968). In that case, certificates of nomination to place the names of candidates for president and vice president on the election ballot, pursuant to the West Virginia code, were held not to constitute public records. It was further held that a qualified voter who signs the certificate in accordance with the provisions of the code effectively casts his vote for the nomination of the candidates named therein, and thus, his vote is entitled to the same secrecy as one cast in a primary election. We think that holding is inapposite in the instant case. Even in its opinion, the West Virginia Supreme Court of Appeals differentiated that case from cases such as the case at bar:
Appellees also argue that, to allow "the general public to see such a petition would subject the person signing such to embarrassment, intimidation, and harassment by overzealous opponents of the legal sale of liquor, * * *."
Such contention is answered in a decision of this court in Excise Commission of Citronelle v. State, ex rel. Skinner, 179 Ala. 654, 60 So. 812 (1912). In that case, Mr. Justice Somerville writing for the court held, viz:
Finally, appellee suggests in brief:
We cannot agree with appellee's assertion. We have not been able to find an Alabama case directly on point nor has any been cited to us. However, in view of the requirement that the election be held "not less than thirty days, nor more than forty-five days" [Title 29, § 68] of the filing of the petition, "mootness" would always be assured before the usual appellate process is completed. We think this supplies good reason to hold that this case has not been rendered moot by the holding of the election, if in fact it has been held.
In its most recent discussion of "mootness" the United States Supreme Court stated in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973):
Additionally, this exception for cases "capable of repetition, yet evading review" has been specifically applied by the United States Supreme Court to the elections context in Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969) where a challenged nominating procedure was dealt with on the merits even after the election because of the likelihood of its being used in future elections.
This exception is properly applicable to the case at bar. The short 30-45 day time period between filing and election, coupled with the possibility of future elections in other counties, convinces us that if the rights of appellant, and those similarly situated, are to be afforded the protection they deserve, the occurrence of the election should not be permitted to effectively deny all review by this court. The cause, therefore, is not moot.
It is thus that we must conclude that the court below erroneously dismissed the petition, and the judgment herein must be reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.
Reversed and remanded.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | September 6, 1973 |
07012fda-70b9-4c11-acad-5a54562330c1 | Hendricks v. Blake | 285 So. 2d 82 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 82 (1973)
Fred W. HENDRICKS et al.
v.
Eva BLAKE et al.
SC 239.
Supreme Court of Alabama.
October 25, 1973.
*83 Dillon, Kelley & Barnes, Alexander City, for appellants.
Balch, Bingham, Baker, Hawthorne, Williams & Ward, and Rodney O. Mundy and H. Hampton Boles, Birmingham, for Ala. Power Co., appellee.
HARWOOD, Justice.
This is an appeal from a decree of the Circuit Court of Tallapoosa County at Dadeville, denying a petition for a sale for division of land located in Tallapoosa County, Alabama.
The appellants, who were complainants below, filed a bill seeking to have certain land described below sold for division, the appellants claiming to be joint owners of an interest therein.
The Alabama Power Company one of the respondents below, and appellee here, filed an answer and cross bill to the complaint. The answer denied that appellants had any interest in the subject land, and the cross bill set forth a chain of title in the Alabama Power Company dating from 1897 by which it claimed title to the land.
After a hearing ore tenus, the Chancellor adjudged and decreed that the Alabama Power Company was "the true and lawful owner in its own right of the entire fee simple interest in" the following described land:
By stipulation, counsel agreed that as of November 29, 1897, title to subject land was vested in Martha Ray who was married to T. F. Howard; Samantha Ray who was married to Joseph Gray; F. H. Hendrix who was married to Fanny Hendrix; and Henry Ray whose wife was N. B. Ray.
By warranty deed dated November 30, 1897, the subject land, along with some additional land, was granted to Henry Ray and his wife N. B. Ray, by Martha Ray Howard and T. F. Howard, her husband, Samantha Ray Gray and Joseph Gray her husband, and F. H. Hendrix and his wife Fanny. Three witnesses attested the six signatures to the deed, though one witness signed by mark.
*84 This deed was not recorded in the office of the Probate Judge of Tallapoosa County until July 25, 1923.
In 1925 the Alabama Power Company instituted condemnation proceedings for land which would be covered with, or surrounded by, water as a result of the construction of Martin Dam. Alabama Power's notice of Lis Pendens states:
In paragraph 22 of the Lis Pendens notice, land which would include the subject land was described. The subject land is that portion of the land described in paragraph 22 unaffected by the judgment in the condemnation proceedings, it appearing that not all of the land described in paragraph 22 would be covered or surrounded by the backed up waters of the Tallapoosa river.
Appellants introduced the above mentioned notice of Lis Pendens for the purpose of showing that Alabama Power Company listed descendants of Martha Ray Howard as well as N. B. Ray and heirs of Henry Ray as owners of the land described in paragraph 22, that is to say, owners of the land of which the subject land was a part before condemnation proceedings by the Alabama Power Company.
During the next thirty-five years, Alabama Power purchased all interests in subject land held by N. B. Ray and the heirs of N. B. Ray and Henry Ray. Further, Alabama Power received two deeds from heirs of Martha Ray Howard purporting to convey all interest of the grantors in the subject land though as above shown Martha Ray Howard had conveyed her interest in the land by the 1897 deed.
In a mortgage by Alabama Power filed in the office of the Probate Judge of Tallapoosa County, Alabama, on April 13, 1956, Alabama Power mortgaged eleven twelfths (11/12) of the subject property.
Appellants claim as heirs of Martha Ray Howard and assert that the aforementioned deed of 1897 was ineffectual to pass the one quarter undivided interest of Martha Ray Howard, and consequently such interest devolved to appellants as her heirs.
Appellants have set forth in general terms six assignments of error, all of which in effect question the sufficiency of the evidence to support the decree rendered.
Under these assignments the appellants have presented two points to support their argument that the Chancellor erred in entering a decree holding the Alabama Power Company to be the lawful owner of the fee simple estate in the subject land:
As to the certified transcript of the 1897 deed, it appears that in addition to three attesting witnesses, the deed was purportedly acknowledged on the day of its execution before H. D. Jackson, a Justice of the Peace in and for Tallapoosa County, Alabama. The joint acknowledgement of the male grantors was a general acknowledgement and contains the usual statement that the grantors "being informed of the contents of the conveyance" etc.
The acknowledgement of the three wives, taken jointly on the same day before the same Justice of the Peace, was a "separate and apart" acknowledgement which did not contain a statement that the wives had been informed of the conveyance.
*85 As we understand one of the contentions of counsel for appellants, it is that because the separate and apart acknowledgement of the wives did not contain a statement that the wives had been informed of the contents of the conveyance, such acknowledgement had the effect of passing only the dower and homestead rights of the wives, and did not divest their title to the real estate beyond these two limited interests.
Section 22, Title 47, Code of Alabama 1940, provides:
The signatures of the grantors were attested by three witnesses, one of whom signed by mark. Thus the deed was attested by two witnesses who could and did write their names. Even if the purported acknowledgement to the deed be considered as defective as contended by the appellants, the signature of the person taking the acknowledgement may be treated as attesting the signatures of the grantors. Berow v. Brown, 208 Ala. 476, 94 So. 772. The signatures of the grantors in the 1897 deed may therefore be considered as attested by three witnesses who could and did write their names. The deed was therefore valid.
Section 119, Title 47, Code of Alabama 1940, is as follows:
In Berow v. Brown, supra, it was held that the progenitor of Section 119, supra, is remedial in nature and applies to a deed which was recorded even before its enactment.
The deed of 1897 being valid as of the date of its execution, and having been of record since July 1923, some 48 years before the initiation of these proceedings, the deed was prima facie validly executed, and under the provisions of Section 119, supra, a certified transcript of its record dispensed with proof of its execution. Veitch v. Hard, 200 Ala. 77, 75 So. 405; Berow v. Brown, supra.
The former owner Martha Ray Howard, through whom the appellants now claim, having disposed of all her interest in the subject property during her lifetime, the basis of appellants' claims to the property disappear. We find no merit in this aspect of appellants' argument.
As to estoppel, appellants contend that Alabama Power is estopped from claiming a full interest in the subject land because Alabama Power has affirmed the claim of the heirs of Martha Ray Howard by naming heirs of Martha Ray Howard as partial owners in the condemnation proceedings of 1925, by the purchase of fractional shares of the subject property from heirs of Martha Ray Howard after 1950, and by stating ownership of only a fractional portion of subject land in the mortgage agreement of 1956.
*86 As to the matter of equitable estoppel, it appears that in their answer to the cross bill of the Alabama Power Company, the appellants asserted in paragraph 5 of said answer that:
In paragraph 6 of their answer to said cross bill the appellants asserted:
The above allegations are insufficient to raise the question of estoppel.
The doctrine of our cases is clear that estoppel must be specially pleaded, and if not done, one may not avail himself of this defense. Jones v. Peebles, 130 Ala. 269, 30 So. 564; Lackland v. Turner, 207 Ala. 73, 91 So. 877; Snead v. Wells, 36 Ala.App. 524, 60 So. 2d 229. In Industrial Savings Bank v. Greenwald, 229 Ala. 529, 158 So. 734, the rule is more specifically stated as follows:
The pleadings of the appellants do not assert that they have relied upon or been prejudiced in any manner by the position taken by the Alabama Power Company in their dealings with this property, nor by the condemnation proceedings. They state only bald conclusions that the Power Company has knowledge of and acquiesced in the ownership by the appellants of an interest in the subject property. See Hall v. Gulledge, 277 Ala. 580, 173 So. 2d 571.
The pleadings of appellants do not assert any reliance by them upon the positions assumed by the Power Company, or that they suffered any injury as a proximate result of any reliance upon the acts of the Power Company. Nor does the evidence tend to establish such facts. Such elements are essential to "judicial estoppel." Hall v. Gulledge, supra.
In Penn Mutual Life Ins. Co. of Philadelphia v. Mallory, 255 Ala. 256, 50 So. 2d 740, it is stated:
If estoppel is not specially pleaded, and we might add properly and sufficiently pleaded, the one asserting estoppel cannot avail himself of the doctrine even though it appears in the evidence. Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812. But in addition to the deficiencies noted in the purported pleading of the doctrine of estoppel, the court found specifically that the appellants had not relied to their detriment upon any representation of the Alabama Power Company concerning the ownership of the subject land, and that the Power Company was not estopped from claiming the entire interest *87 and title to the subject land. After our review of the evidence, we are in full accord with this finding. The effort of the appellants to invoke estoppel to deprive the record title owner of land must therefore be considered as without merit.
Counsel for appellants also argue the question of res adjudicata in their brief. A plea of res adjudicata is a plea in bar. It must be specially pleaded. No such matter appears in the pleadings filed by the appellants. The question cannot now be raised on appeal as it must be deemed as having been waived. See Thomas v. Bank of Hurtsboro, 243 Ala. 658, 11 So. 2d 370; Tilley, Alabama Equity Pleading and Practice, Sec. 87.
It should be noted that the doctrines of our cases as to the manner of pleading affirmative defenses to a preceding pleading has not been altered by the new Alabama Rules of Civil Procedure, effective 3 July 1973. See Rule 8(c) which provides:
The decree is due to be affirmed and it is so ordered.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | October 25, 1973 |
7caee561-4bb5-47dc-827f-28a341453f8f | National Life & Accident Insurance Co. v. Mixon | 282 So. 2d 308 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 308 (1973)
In re The NATIONAL LIFE & ACCIDENT INSURANCE COMPANY
v.
Arthur MIXON.
Ex parte Arthur MIXON.
S C 117.
Supreme Court of Alabama.
August 30, 1973.
*309 Brobston & Brobston, Bessemer, for petitioner.
Lange, Simpson, Robinson & Somerville, Birmingham, for respondent.
HEFLIN, Chief Justice.
This case comes before this court by way of a petition for a writ of certiorari to the Court of Civil Appeals wherein the petitioner-appellee-complainant, Arthur Mixon (hereinafter referred to as "insured") avers that the holding of the Court of Civil Appeals is in conflict with a prior decision of this court, Independent Life Insurance Co. v. Carroll, 222 Ala. 34, 130 So. 402 (1930).
The facts giving rise to the instant controversy have been stipulated to by both parties. On October 23, 1961 the respondent-appellant-defendant (hereinafter referred to as "insurer") issued a policy of insurance to the insured, at which time the insured was suffering from glaucoma and was totally and permanently blind in his right eye. The insured is totally and permanently blind in both eyes at present, and is, and has been Since before the issuance of this policy, under the care of Dr. James B. Collier for the treatment of such disease.
*310 The pertinent policy provisions under which the insured claimed benefits for total loss of eyesight, and under which the insurer denied his claim are as follows:
Definition....
Premium....
Reinstatement....
Age....
The case was tried in the Circuit Court of Jefferson County, Bessemer Division, without a jury, upon the stipulated facts, wherein judgment was rendered for the insured in the amount of $1,000, the total damages claimed. This judgment was reversed and rendered in favor of the insurer by the Court of Civil Appeals, 50 Ala. App. 697, 282 So. 2d 306, holding that the incontestable clause did not preclude the insurer from asserting the defense of pre-existing disease, and, therefore, under the stipulated facts, the insurer was not liable under its policy, as it had never assumed the risk of loss of eyesight due to a disease which existed on and prior to the issuance date of the policy.
In Carroll, supra, the beneficiary of a life insurance policy brought suit claiming benefits under said policy. The policy contained a clause which stated that "no obligation is assumed by the company unless on the date and delivery hereof the insured is alive and in sound health." The policy also contained the following incontestable clause:
The insurer sought to avoid liability under the policy by setting up the fact that the insured was suffering from a disease at the time of issuance and delivery of the policy. However, this court held that the incontestability clause precluded such a defense, reasoning that the "usual rules of construction governing the interpretation of insurance policies are applicable to the construction of incontestable clauses therein, and if there is reasonable doubt as to the extent of the application of the incontestable clause it must be solved in favor of the beneficiary."
This court had occasion to consider a similar issue one year later in the case of Moore v. Bankers' Credit Life Insurance *311 Co., 223 Ala. 373, 136 So. 798 (1931). In Moore the policy in question contained an incontestability provision which did not include suicide in the exceptions from its operation.
The policy in Moore also contained a suicide clause which stated that "[i]f the insured shall within two years from the issue date of this policy, die by his or her own hand, or act, whether sane or insane, this policy shall be valid only for an amount equal to the premiums received on the policy."
The insured in Moore took his own life within the two year period, but suit was not brought until after the expiration of the two year period. The beneficiary contended that because suit was not brought until after the expiration of the two year period, the case was governed by the incontestable clause, and being so governed, the insurer could not contest liability under the policy by setting up suicide as a defense. This court rejected this contention, holding that the incontestable clause did not preclude the defense of suicide, as death by suicide was not a risk assumed by the insurer,[2] exactly the same contention asserted by the insurer in the instant case.
This court in Moore found no conflict between the suicide and incontestable clause, observing that:
This court went on to conclude that to hold that there was a conflict between the incontestable and suicide clauses and that the general provision of the incontestable clause supersede and nullify those of the suicide clause would do violence to the clear intention of the parties plainly and unambiguously expressed.
It would appear on the surface that Carroll and Moore are in conflict with each other since in both the policy contained an incontestable clause. However, different treatment was given because in Carroll the clause that "no obligation is assumed by the company unless on the date and delivery hereof the insured is alive and in sound health" was held to be a warranty.
A warranty is a contractual obligation which enters into and becomes an integral part of the completed contract. 12 Appleman, Insurance Law and Practice, § 7341, at 440 (1943). In the early case law of this state a warranty was construed as a part and parcel of the contract of insurance and strict compliance was required before the assured was entitled to recover on the policy. Alabama Gold Life Ins. Co. v. Johnston, 80 Ala. 467, 2 So. 125 (1886). Harsh results often occurred when a clause was classified as a warranty. In some instances clauses were liberally construed to give them the label of a representation rather than a warranty in order to avoid the harshness of the early case law warranty rules. In Alabama Gold Life Justice Henderson M. Somerville analyzes the distinction between a representation and a warranty in the following language:
In order to alleviate the harshness of the technical distinctions between warranties and representations, a statute, which now appears in Code of Alabama, 1940, and the 1958 Recompiled Code as Title 28, Section 6[3], was enacted. That statute stated:
In Empire Life Ins. Co. v. Gee, 171 Ala. 435, 55 So. 166 (1911), in assessing the meaning of this statute this court reasoned:
Thus, even though the statute speaks of both warranties and representations, it has been made clear that they are to be treated the same so that neither will avoid the policy unless the conditions of the statute are met (i. e. actual fraud or increased risk). Sovereign Camp W.O.W. v. Moore, 232 Ala. 463, 168 So. 577 (1936).
Case law of this state frowned upon the results of technical violations of warranties and established rules of construction designed to reduce forfeitures from breaches of warranties in insurance contracts. Alabama Gold Life stated in substance that the court should lean against that construction of the contract which will impose upon the insured the burden of a warranty, and where a warranty is recognized it must be construed with other provisions of the policy so as to modify it and give the insured the most favorable construction.
Judge Samford in Independent Life Ins. Co. v. Vann, 24 Ala.App. 93, 130 So. 520 (1930) stated in holding that the incontestable clause controlled over a warranty of good health at time of delivery, the following:
Next, it must be realized that there is a valid distinction between a pre-existing disease or suicide clause which specifically excludes certain things from contract coverage, and a clause such as was dealt with in Carroll, which was not a pre-existing disease clause as such, but a clause which attempted to establish a condition to preclude the contract from ever coming into existence if the policy was not delivered to the insured in good health (i. e. a common condition precedent). The Moore case involved a suicide clause, which excluded coverage, and is the proper precedent for the case at bar. The Carroll case, on the other hand did not involve a pre-existing disease exclusion clause, but a delivery of good health provision, and is distinguishable. As stated by Couch:
The clause in Carroll was clearly an attempt to establish a condition precedent on the part of the insurer. However, this court established that a "delivery in good health" clause, although a condition precedent in most states, is to be given the legal effect of a warranty in Alabama. This was the holding in Mutual Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440 (1922), and it has been rather firmly fixed as law in Alabama by subsequent cases. E. g. Reliance Life Ins. Co. v. Sneed, 217 Ala. 669, 117 So. 307 (1928); Independent Life Ins. Co. v. Seale, 219 Ala. 197, 121 So. 714 (1929); Independent Life Ins. Co. v. Vann, supra.
At the time the Carroll case was decided, by case law, a condition of delivery in good health had the legal effect of a warranty, and, by statute, a warranty was treated the same as a representation so that avoidance of a policy on the grounds that the insured was not in good health at delivery of the policy would have to be based on actual fraud or an increased risk.
As a warranty, the delivery in good health provision is then, by definition, a part of the contract. The precise question involved in Carroll was whether, since it is a part of the contract, a material breach of the warranty of delivery in good health is cut off as a defense by the incontestability clause. The court held in Carroll, that the incontestable clause did preclude the assertion of breach of the good health warranty as a defense. Such holding was consistent with the general view of the operation of the incontestable clauseits principal function is to cut off defenses such as a breach of warranty or misrepresentation that go to the existence of the policy after the policy has been in force and effect for a period of time.
The issue in Moore, on the other hand, did not deal with a warranty or a representation *314 of any kind, but dealt with a provision which excluded coverage of a specified riski. e. death by suicide. There was no attempt to avoid the policy in Moore as was the case in Carroll, to the contrary, the insurer admitted the existence of the contract and relied on a provision in the contract which clearly showed that the loss claimed was outside the risk assumed by the insured. Thus, Moore is clearly distinguishable from Carroll.
In John Hancock Mut. Life Ins. Co. v. Markowitz, 62 Cal. App. 2d 388, 144 P.2d 899 (1944), the court was faced with a situation similar to that of the case under review, wherein the insured had contracted a disease prior to the issuance date of the policy. The policy contained a pre-existing disease clause, as well as an incontestable clause. The California court resolved the matter by allowing the insurer to assert the defense contained in the pre-existing disease clause, notwithstanding the policy's incontestable clause, stating:
The lower court's decree in Markowitz, which was affirmed, contained the following language:
This approach to the construction of the incontestable clause has been adopted by a majority of other courts which have considered the question. Apter v. Home Life Ins. Co. of New York, 266 N.Y. 333, 194 N.E. 846 (1935); John Hancock Mut. Life Ins. Co. v. Hicks, 43 Ohio App. 242, 183 N.E. 93 (1931); Palumbo v. Metropolitan Life Ins. Co., 293 Mass. 35, 199 N.E. 335 (1935); Sanders v. Jefferson Standard Life Ins. Co., 10 F.2d 143 (5th Cir. 1925); Flannagan v. Provident Life and Accident Ins. Co., 22 F.2d 136 (4th Cir. 1927); Wright v. Philadelphia Life Ins. Co. of Philadelphia, Pa., 25 F.2d 514 (E.D.S.C. 1927); Scarborough v. American Nat. Ins. Co., 171 N.C. 353, 88 S.E. 482 (1916); Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 P. 933 (1927); Childress v. Fraternal Union of America, 113 Tenn. 252, 82 S.W. 832 (1974); Brady v. Prudential Ins. Co., 168 Pa. 645, 32 A. 102 (1895); Woodbery v. New York Life Ins. Co., 223 App.Div. 272, 227 N.Y.S. 699 (1928); Washington Nat. Ins. Co. v. Burch, 270 F.2d 300 (5th Cir. 1959); Riley v. Industrial Life & Health Co., 190 Ga. 891, 11 S.E.2d 20 (1940); National Life & Accident Insurance Co. v. Chapman, 106 Ga.App. 375, 127 S.E.2d 157 (1962); Posner v. New York Life Ins. Co., 56 Ariz. 179, 106 P.2d 488 (1940); Head v. New York Life Ins. Co., 43 F.2d 517 (10th Cir. 1930); Stean v. Occidental Life Ins. Co., 24 N.M. 346, 171 P. 786 (1918); Jolley v. Jefferson Standard Life Ins. Co., 199 N.C. 269, 154 S.E. 400 (1930); Perilstein v. Prudential Insurance Co., 345 Pa. 604, 29 A.2d 487 (1943); Pacific Mutual Life Ins. Co. v. Fishback, 171 Wash. 244, 17 P.2d 841 (1933); Gordon v. Unity Life Ins. Co., 30 So. 2d 880 (La.App.1947); Fohl v. Metropolitan Life Ins. Co., 54 Cal. App. 2d 368, 129 P.2d 24 (1942); Pekras v. Prudential Ins. Co., 291 Ill.App. 597, 10 N.E.2d 704 (1937); Mills v. Metropolitan Life Ins. Co., 210 N.C. 439, 187 S.E. 581 (1936); Prudential Ins. Co. v. Elias, 188 Okl. 420, 109 P.2d 815 (1940); Mayer v. Prudential Life Ins. Co., 121 Pa. Super. 475, 184 A. 267 (1936); Guise v. New York Life Ins. Co., 127 Pa.Super. 127, 191 A. 626 (1937).
In the case of National Life & Accident Insurance Company v. Chapman, supra, the *315 policy in question contained the following incontestable clause:
The policy also contained a pre-existing disease clause similar to that found in the policy in the case under review.
The Georgia court rejected the insured's contention that the incontestable clause precluded the insurer from setting up pre-existing disease as a defense to the insured's suit on the policy, stating:
Williston is in accord with the above cases, for he says that "[i]t is settled that if the disability arose prior to the issuance of the policy it is not to be deemed to be covered by the policy; therefore, the company can contest liability for disability benefit payments." Williston also uses this language:
Williston also supports the position taken by this court in Moore, supra, that "[a]n exclusion of a particular coverage from a policy is not a condition precedent to liability under the policy, therefore the insurer's refusal to pay a loss claim which is not embraced within the coverage of the policy is not a `contest' of the policy, therefore it can be asserted before or after any incontestability clause has run." 7 S. Williston, Williston on Contracts § 913 (3d ed. 1963); McCann v. National Life & Accident Ins. Co., 226 S.W.2d 177 (Tex.Civ. App.1949); and cases cited, supra.
This view is also supported in 43 Am. Jur.2d § 1160, wherein it is stated that "an insurer does not contest a policy within the meaning of an incontestable clause where the insurer resists payment upon the ground that the loss for which claim is made is not within the coverage of the policy, or as otherwise stated, within the risk assumed by the insurer; ... accordingly, an incontestable clause does not operate to prevent the insurer from defending on the ground that the loss is not covered by the policy." See cases cited therein.
This same view as to what is a "contest" of the policy is expressed in 18 G. Couch, Couch on Insurance § 72:101 (2d ed. 1968), as follows:
Couch also states that "[t]he fact that a policy has become incontestable does not... affect the rule that the insurer's liability is measured by the terms and provisions *316 of the policy itself." Couch, supra, § 72:59. It is further said in § 72:61 that:
Commenting upon the effect of specific exception clauses, Couch, in § 72:63 says:
Addressing himself to the specific exception of a pre-existing disease clause, Couch says in § 72:65:
In conclusion then, what this court is saying is this: that there is no conflict between the incontestability clause and the pre-existing disease exclusion clause, as the latter constitutes an exception to the former, general clause; that the insurer's insistence that it is not liable under the policy by reason of its exclusion contained in the pre-existing disease clause, is not a "contest" of the policy within the meaning of the incontestable clause; and that complete and irrevocable loss of sight of both eyes which results from a disease contracted by the insured before the issuance date of the policy was a risk which the insurer had never assumed in this case at bar.
While the case under review was tried in the trial court before the effective date of the new insurance code, it is interesting to note that Title 28A, Section 360 of the Code of Alabama, 1940, as amended (Recompiled 1958-1971 Pocket Supplement) contains the following language pertaining to life insurance policies and annuity contracts:
The opinion of the Court of Civil Appeals is due to be affirmed.
Affirmed.
MERRILL, HARWOOD, BLOODWORTH, McCALL and FAULKNER, JJ., concur.
COLEMAN, MADDOX and JONES, JJ., dissent.
*317 COLEMAN, Justice (dissenting):
The policy sued on contains two provisions which give rise to the controversy. The provision first appearing in the policy is herein sometimes referred to as Clause 1, and the second provision will be referred to as Clause 2.
Clause 1 recites in pertinent part as follows:
The defendant contends that it is not liable because the plaintiff's loss of eyesight was not "caused solely by disease or injuries contracted or sustained after the Date of Issue."
Clause 2 recites:
Plaintiff contends that there is a conflict between Clause 1 and Clause 2 and that the policy must be construed in favor of the insured, the plaintiff.
Plaintiff relies on Independent Life Ins. Co. v. Carroll, 222 Ala. 34, 130 So. 402, wherein plaintiff sued as beneficiary in a policy of life insurance. In opinion on prior appeal (219 Ala. 79, 121 So. 88) it is said that insured died of apoplexy. In the second appeal (222 Ala., 130 So.) it is said that defendant interposed pleas setting up a breach of warranty as to the condition of health of insured to effect that at date of issue of the policy she had a named disease that materially increased the risk of loss, but failed to allege actual or intended fraud. The policy contained an incontestable clause as follows:
The policy in Carroll contained a sound health clause to effect that no obligation was assumed by insurer unless on date of issue of policy insured was in sound health. This court held that the incontestable clause could not be defeated by the sound health clause. This court rejected defendant's argument that by breach of the warranty of sound health there was no contract upon which the incontestable clause could rest. This court said:
The clause relied on by insurer in Carroll recites:
As here material and pertinent, the clause relied on by insurer in the instant case recites:
With respect to the question here presented, I am not able to distinguish the sound health clause in Carroll from the last quotation above taken from Clause 1 in the instant case. In no respect here material is there any difference between the incontestable clause in Carroll and the incontestable clause here. If there is any conflict or ambiguity between Clause 2 and Clause 1 in the instant case, that issue must be resolved in favor of the beneficiary, the plaintiff. See Carroll, supra.
The Court of Appeals of Alabama in Vann, infra, held that a sound health clause, that "`No obligation is assumed by the company unless on ...'" the date of delivery insured is in sound health, did not create a defense where the requirement of sound health was not mentioned in the incontestable clause as an exception on which a contest could be founded after expiration of the contestable period. The court said:
The Court of Appeals of New York held that under an incontestability clause, the insurer was barred from defending on a ground not enumerated in the exceptions stated in the policy as grounds for contest after the close of the contestable period.[1] The court said:
This court has said:
In the ordinary meaning given to the language in the policy here, a reasonable man buying this policy may well understand that for one year after date of issue, he cannot recover for a loss caused by a disease which he had at date of issue, but he could and probably would reasonably understand that after one year has passed, the policy cannot be contested on the ground that he had a pre-existing disease which caused the loss.
The policy was prepared by insurer. A conflict or at least an ambiguity is created by the two clauses mentioned. Under the well recognized rule of construction, where a conflict or ambiguity appears in a writing, the writing is to be construed against the party who wrote it, in this case, the insurer.
The majority make a distinction between a contest of liability based on the ground of breach of warranty with the alleged consequence of no coverage, and a contest based on some other ground. The ordinary reasonable man reading the instant policy would not make such a distinction. If the insurer desired to make such a distinction it could have done so by appropriate words in the policy.
Being of opinion that Clause 1 and Clause 2 are in conflict, I would construe the policy in favor of the insured and reverse the decision of the Court of Civil Appeals. Therefore I dissent.
MADDOX, J., concurs.
[1] It should be noted that the only exception contained in the incontestable clause pertained to non-payment of premiums.
[2] It should be observed that the court in Moore also held that the suicide within the two year period was controlling rather than the date of the institution of the suit.
[3] Repealed by Act No. 407, Acts of Alabama, 1971, Regular Session, approved August 25, 1971, effective January 1, 1972. See Title 28A, Sections 320 and 341 of Code, 1940, as amended (Recompiled 1958-1971 Cumulative Supplement) for replacement provisions.
[1] "The life policy proper contained the provision that `This policy will be incontestable after it has been in force during the lifetime of the insured for a period of two years from the date of its issue, except for non-payment of premiums; provided, however, that any provisions or conditions relating to benefits in event of total and permanent disability or accidental death contained in any supplementary agreement attached hereto shall become void for the causes and under the conditions stated therein.' The policy and supplementary agreement were in full force and in good standing with all required premiums fully paid more than two years after the date of issue thereof. No grounds are stated in the policy proper by which liability under the supplementary agreement may be contestable after the period of two years after date of issue except the nonpayment of premiums. During disability, payment of premiums was agreed to be waived as above stated. The only `causes' and `conditions' stated in the supplementary agreement for and under which the `provisions or conditions relating to benefits in event of total and permanent disability * * * shall become void' are: (1) failure of the insured to furnish proof of the continuance of the disability and to permit examinations by the company's duly appointed medical examiner at such time or times as may be required by the company during the first two years after the receipt of proof of the disability; (2) recovery of the insured from his disability; (3) in the event the disability results `from causes arising during military or naval service in time of war, or from self-inflicted injury, or from participation in underground work, or in aerial or submarine expeditions or operations, either as a passenger or otherwise.' None of those `causes' and `conditions' have any applicability under the facts in this case. It thus appears that fraud in the inception of the contract is not stated to be one of the `causes' or `conditions' for or under which the supplementary agreement shall become void. There is no reservation in the policy proper or in the so-called supplementary agreement of fraud in the inception of the contract as a ground for declaring the contract void if asserted more than two years after the date of issue of the policy. It is significant that the plaintiff stated at length and in detail the `causes' and `conditions' under which the supplementary agreement should become void. Had it been the intent of the plaintiff to except fraud in the inception of the contract from the operation of the two-year incontestability clause, it would have been a simple matter to have inserted a provision to that effect which it had the power to do; if there is any ambiguity in the meaning of the provisions of the contract, all doubt must be resolved in favor of the insured. Janneck v. Metropolitan Life Ins. Co., 162 N.Y. 574, 57 N.E. 182; Stroehmann v. Mutual Life Ins. Co., 300 U.S. 435, 439, 57 S. Ct. 607, 81 L. Ed. 732." Berkshire Life Ins. Co. v. Weinig, 290 N.Y. 6, 8, 9, 10, 47 N.E.2d 418, 420, 421. | August 30, 1973 |
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