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855654af-a695-4bf4-8bee-e17058611f27 | Williams v. State | 282 So. 2d 355 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 355 (1973)
In re Benny Ralph WILLIAMS
v.
STATE.
Ex parte Benny Ralph Williams.
SC 482.
Supreme Court of Alabama.
August 30, 1973.
James T. Gullage, Opelika, for petitioner.
No brief for the State.
MERRILL, Justice.
Petition of Benny Ralph Williams for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision in Williams v. State, 51 Ala. App. 1, 282 So. 2d 349.
Writ denied.
HEFLIN, C. J., and COLEMAN, HARWOOD and MADDOX, JJ., concur. | August 30, 1973 |
a8843beb-7f25-444c-9a89-ffc484c3a656 | Carson v. Employers Casualty Company | 282 So. 2d 923 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 923 (1973)
In re Billy E. CARSON et al.
v.
EMPLOYERS CASUALTY COMPANY, a corp.
Ex parte Billy E. Carson and Betty Carson.
SC 458.
Supreme Court of Alabama.
September 13, 1973.
David Culver, Huntsville, for petitioners.
No brief for respondent.
HEFLIN, Chief Justice.
Petition of Billy E. Carson and Betty Carson for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that court in Carson et al. v. Employers Casualty Company, 51 Ala. App. 90, 282 So. 2d 913.
In denying the writ in this case this court does not desire to be understood as approving or disapproving the language used or the statements of law contained in the opinion of the Court of Civil Appeals. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108.
This court specifically does not wish to be understood as approving any language in the opinion of the Court of Civil Appeals which could be construed as establishing an appellate presumption in favor of the correctness of the ruling of the trial court on the affirmative charge. It is the established law of this jurisdiction that an appellate court, in considering the propriety of the affirmative charge, reviews the tendencies of the evidence most favorable to the plaintiff regardless of any view of the appellate court as to the weight of the evidence. National Life & Accident Insurance Co. v. Allen, 285 Ala. 551, 234 So. 2d 567; Glass v. Davison, 276 Ala. 328, 161 So. 2d 811.
Writ denied.
MERRILL, HARWOOD, MADDOX and FAULKNER, JJ., concur. | September 13, 1973 |
ebe4e853-c03b-4535-9f0d-5900b4eefce7 | Logan v. State | 282 So. 2d 898 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 898 (1973)
Jimmy Lee LOGAN
v.
STATE of Alabama.
SC 358.
Supreme Court of Alabama.
September 13, 1973.
*899 John S. Glenn, Opelika, for appellant.
Edward B. McDermott, Special Asst. Atty. Gen., Mobile, for the State.
MERRILL, Justice.
Jimmy Lee Logan, a sixteen-year-old boy, was convicted in Lee County Circuit Court of raping a twenty-seven-year-old unmarried girl in Auburn, Alabama. Logan appealed from his conviction and twenty-four year penitentiary sentence to the Alabama Court of Criminal Appeals. On April 24, 1973, the cause was transferred to this Court, pursuant to Title 13, § 111(11a), Code of Alabama 1940, Recompiled 1958.
It appeared on the trial that the victim had been window-shopping in Auburn the night of the crime. As she was walking home, several males dragged her into the bushes alongside Drake Avenue, a block from her home. She was forcibly raped three times and there was a fourth unsuccessful attempt. It was her impression there were four different assailants.
Willie Scott, fourteen years old, testified that he, the defendant Logan, and two others had been the assailants. Willie testified that as the defendant and the others were raping the woman, he thought she seemed hurt, so he put his hand on her heart to make sure she was alive. When the three were finished, they forced Willie to get on top of the woman, but he did not penetrate.
A cellmate testified that while he and the defendant were locked up together, Logan had told him the full story of the assault, including an admission that he and each of the others had raped the victim, except for little Willie, who "[didn't] get too much."
The defendant himself took the stand and denied everything. He claimed to have been at home watching television during the time of the assault.
The jury returned a verdict of guilty as charged, and imposed a twenty-four year penitentiary sentence.
The warrant on which appellant was arrested recited:
Appellant argues that the warrant was issued on the "mere conclusion of a Police officer," and, therefore, the arrest warrant was invalid; and, if invalid, the detention of appellant was invalid. Based on these premises, appellant then argues that the alleged verbal statements of the appellant to cellmate Parker that he took part in the rape and that he was the second of the group to have sexual intercourse with the prosecutrix were inadmissible because they were made while appellant was illegally detained and were "fruit of the poisonous tree" doctrine. We cannot agree.
In Loyd v. State, 279 Ala. 447, 186 So. 2d 731, this court said:
Other recent cases holding the same are Bridges v. State, 284 Ala. 412, 225 So.2d 821[6]; Braggs v. State, 283 Ala. 570, 219 So.2d 396[3]; Hutto v. State, 278 Ala. 416, 178 So.2d 810[6]; Goldin v. State, 271 Ala. 678, 127 So.2d 375[8]; Ingram v. State, 252 Ala. 497, 42 So.2d 36[11]; Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240[5]; Reed v. State, 48 Ala.App. 120, 262 So.2d 321[2]. In Ingram v. State, supra, this court approved and agreed with a statement of Harwood, J., writing for the Court of Appeals in the same case, (Ingram v. State, 34 Ala.App. 597, 42 So. 2d 30) in which it was stated, "* * * we do not consider that the McNabb Rule (McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L.Ed. 819) is binding on us. In Townsend v. Burke, 334 U.S. 736, 738, 68 S. Ct. 1252, 1254, 92 L. Ed. 1690, the United States Supreme Court said in reference to the McNabb Rule: `But the rule there applied was one against use of confessions obtained during illegal detention and it was limited to federal courts, to which it was applied by virtue of our supervisory power.'"
It follows that the rule in federal courts is not applicable in our courts. We also note that appellant was tried on a valid indictment which is not questioned.
In addition, there is a major distinction in this case and the cases cited in brief of appellant and in the dissenting opinion. In those cases, the court deals mostly with the question of illegal searches or seizures and some do not deal with confessions at all. But in those cases dealing with confessions or admissions, they were made to officers in custodial interrogations, either at the time or shortly after an illegal arrest.
But here, the confession was made to a cellmate and was admitted after a proper predicate had been laid to as its voluntariness. There is no evidence or inference therefrom that any officer was present or heard the confession or that cellmate Parker was a "plant" or undercover agent of any officer. So there was no "poisonous tree" and no "fruit" of any illegal search or seizure or custodial interrogation.
In Sanders v. State, 202 Ala. 37, 79 So. 375, this court held that a prisoner in jail could testify as to a conversation he heard between two fellow prisoners, accused of a crime, upon the issue of the guilt vel non of one of them after a showing that the statements were not otherwise than voluntary.
We find no error in the admission of the testimony of the cellmate Parker.
Appellant also raises questions of (a) error in the court's refusal to transfer the case to the juvenile court; (b) that the testimony of the alleged accomplice, Willie Scott, was not corroborated; (c) that the court erred in allowing hearsay evidence to be adduced from Deputy Sheriff Watkins.
The answer to (a), the transfer question, is that when a youth 16 to 18 years of age is charged with a crime in a court of criminal jurisdiction, the statute, Tit. 13, § 363, vests in the court a discretion to put him to trial or transfer him to the jurisdiction of a juvenile court. Whitfield v. State, 236 Ala. 312, 182 So. 42; Davis v. State, 259 Ala. 212, 66 So. 2d 714. The appellant was 16 years old and the trial court had the right, in his discretion, to put him on trial in the circuit court. We cannot say that from a consideration *901 of the record, the trial court abused his discretion.
We now consider the argument that the court erred in admitting Willie Scott's testimony because Scott was an accomplice. Appellant concedes that the testimony of Parker corroborated that of Scott, but insists that Parker's testimony was not admissible. We have already decided that question adversely to appellant.
The State argues that Scott was not an accomplice because he could not have been convicted of rape since, even under the testimony of the prosecutrix, he achieved no penetration.
The test of whether a witness is an accomplice is, could the witness have been indicted and convicted of the offense charged either as principal or accessory. Miller v. State, 290 Ala. 248, 275 So. 2d 675; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712; Strange v. State, 43 Ala.App. 599, 197 So. 2d 437.
Assuming, without conceding, that Scott was an accomplice, still there was ample corroborating evidence to support the conviction without Scott's testimony.
Finally, the point that hearsay evidence of Deputy Watkins was not admissible. Appellant states in brief: "The record clearly shows that trial counsel properly objected to the hearsay testimony of Ronnie Watkins, concerning a conversation between Watkins and the witness for the State, Charlie Parker."
On direct examination, the appellant testified that his cellmate, Parker, after returning from a session with some officers, including Deputy Ronnie Watkins, told him (appellant) as follows:
The appellant was the concluding defense witness and the defendant rested, but another cellmate corroborated the statement.
The only rebuttal witness was Deputy Ronnie Watkins. After Watkins had testified that he had talked with Parker in the presence of other officers about appellant's case (no details were stated), the following transpired:
"Q. What, if anything, was said between the two of you all?
"MR. GLENN: Your Honor, I'm not
"THE COURT: Respectfully overruled, and you have an exception.
"THE COURT: Yes, sir, you have an exception. Now, go ahead.
The trial court was correct in allowing the rebuttal witness to testify that he offered no money or inducements to Parker since the charge had been made by the defendant while testifying in his own behalf.
Such evidence is competent and it is elementary that the State may examine a prosecuting witness as to facts tending to rebut the defendant's testimony, or reasonable tendencies thereof. Deloney v. State, 225 Ala. 65, 142 So. 432; Emerson v. State, 281 Ala. 29, 198 So. 2d 613.
Even so, if there had been error, it was rendered harmless. When the direct examination of the rebuttal witness was concluded, appellant's counsel made the following statement:
Obviously, the objection that the evidence was hearsay could not apply to Deputy Watkin's testimony denying the offer of money. It could only apply to matter of the difference in the charge against cellmate Parker in that he was arrested on a charge of assault with intent to murder and later the indictment against him was assault and battery.
The matter was brought up when Parker, on cross-examination by defendant, was asked if after he had talked with Deputy Watkins (and it was undisputed that they had only one conversation) and had testified at the preliminary hearing of appellant, that he (Parker) was indicted for assault and battery. Over the State's objection, the witness testified that the indictment charged assault and battery. The appellant also introduced the warrant charging assault with intent to murder, and the indictment charging assault and battery.
In rebuttal, Deputy Watkins denied offering to or even talking about reducing the charge against Parker in their conversation and stated that the only reference to the charges was that already recorded.
Two principles demonstrate that no reversible error was committed in admitting this evidence, some of which was hearsay. First, the admission or rejection of evidence on rebuttal is addressed largely to the trial court's discretion. Goldin v. State, 271 Ala. 678, 127 So. 2d 375; Caldwell v. State, 203 Ala. 412, 84 So. 272. The matter was material and important *903 and the trial court did not err in permitting the witness to attempt to clear himself of the charge.
The second principle is that when part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal. Gibson v. State, 91 Ala. 64, 9 So. 171. Further, it has been held that when the defendant, on cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation. Davis v. State, 131 Ala. 10, 31 So. 569; Flournoy v. State, 34 Ala.App. 23, 37 So. 2d 218.
No error to reverse appearing, the judgment is due to be affirmed.
Affirmed.
COLEMAN, HARWOOD, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
HEFLIN, C. J., concurs in the result.
BLOODWORTH, J., dissents.
HEFLIN, Chief Justice (concurring in the result):
I concur in the affirmance of the case because the confession was made to a cellmate rather than to a law enforcement officer. I would agree with Justice Bloodworth's dissent except for the fact that none of the United States Supreme Court cases that he cites involve non-law enforcement personnel. I would not extend the doctrine of the "fruit of the poisonous tree" to a confession given to a cellmate.
BLOODWORTH, Justice (dissenting):
I must respectfully dissent, as I think there was error in the admission of the confession made while defendant was being held in jail under an illegal and unconstitutional arrest, in the absence of a showing that the confession was not a product of the illegal detention. I agree with the rest of the majority opinion.
Perhaps as much or more than any member of this court, I dislike having to place myself in the posture of voting to remand this cause for further proceedings. But, I think the United States Supreme Court decisions compel this result. And, of course, we have a duty to follow those cases, whether we agree with them or not.
In Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971), the United States Supreme Court held:
The affidavit upon which the warrant in Whiteley was based averred in relevant part:
This affidavit was rejected by the United States Supreme Court as being "nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense." Id. at 565, 91 S. Ct. at 1035. Having found the affidavit insufficient to support the warrant, the Court in Whiteley declared the arrest invalid and reversed the conviction because evidence seized at the time of the illegal arrest was improperly admitted at trial, being the "fruits" of the illegal arrest.
*904 The case at bar is controlled by the Supreme Court's decision in Whiteley, in my judgment. The officer who swore to the affidavit in the present cause merely stated:
Such a bald, conclusory statement cannot "support the independent judgment of a disinterested magistrate" as required by Whiteley. The affidavit is clearly insufficient, thus the warrant is invalid as is the resulting arrest.
Not many of us thought, before the United States Supreme Court told us so in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), that a purely conclusionary affidavit wouldn't do to support a search warrant. (See Knox v. State, 42 Ala.App. 578, 172 So. 2d 787, cert. den. 277 Ala. 699, 172 So. 2d 795 (1965).)
Neither did many of us think, before the United States Supreme Court decision in Whiteley v. Warden, supra, that a purely conclusionary affidavit wouldn't do to support an arrest warrant.
Now, it seems absolutely clear to me that, as to both search and arrest warrants, the affidavit must contain sufficient allegations to constitute "probable cause." Whiteley, supra; Aguilar, supra; Spinelli, supra.
Logically, it may be asked what difference does it make if the affidavit in support of the arrest warrant is conclusionary and the subsequent arrest therefor invalid?
Probably, it makes no difference if the defendant is indicted, as he must be in Alabama to be tried for a felony, provided no fruits of a search and seizure, line-up, confession, fingerprints (see Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L.Ed. 2d 676), etc., obtained during the illegal detention, are sought to be introduced against the defendant.
Having concluded that the arrest in this case was invalid, the question then arises whether the defendant's confession to his cellmate while he was being unlawfully detained was tainted by his illegal arrest.
While the United States Supreme Court in Clewis v. Texas, 386 U.S. 707, 711 n. 7, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967), purported to reserve the question of the admissibility of statements obtained from a defendant following an unconstitutional arrest, later cases require that it clearly appear on the record that the confession was not caused or brought about by the illegal detention.
In State v. Traub, 150 Conn. 169, 187 A.2d 230 (1962), the Supreme Court of Errors of Connecticut upheld a conviction based upon a voluntary confession obtained while the defendant was being unlawfully detained. However, when the case came before the United States Supreme Court in Traub v. Connecticut, 374 U.S. 493, 83 S. Ct. 1899, 10 L. Ed. 2d 1048 (1963), the Court summarily remanded the case for further consideration in the light of Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) and Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).
After remand, the Connecticut court, in State v. Traub, 151 Conn. 246, 196 A.2d 755, held that while a "confession made in the course of, or following, an illegal detention * * * [is not] per se inadmissible as matter of law," it is "prima facie, inadmissible under the Wong Sun rule * * *." In other words, the state is required to prove voluntariness as a prerequisite to the admissibility of a confession in any case, but the effect of an illegal detention, under the Wong Sun rule, * * * is to add to that burden." The court concluded that:
In Traub, the Connecticut court, after examining the record, found sufficient evidence to conclude that the detention was not an operative factor in producing the confessions. The United States Supreme Court denied certiorari in Traub v. Connecticut, 377 U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2d 503 (1964).
Similarly, in Morales v. New York, 396 U.S. 102, 90 S. Ct. 291, 24 L. Ed. 2d 299 (1969), the United States Supreme Court vacated a conviction based upon a confession obtained from the defendant while in police custody. The Court acknowledged that the circumstances showed that the confession was voluntary, but remanded the cause for determination as to the lawfulness of the police detention at the time the confession was obtained in order to determine whether the confession was properly admitted at trial.
Thus, it appears to me to be the law that confessions obtained while under unlawful detention, even though shown to be voluntary, are subject to the "fruit of the poisonous tree" doctrine of Wong Sun, supra, if caused or brought about by the illegal detention, and that such doctrine is fully applicable to the states through Ker v. California, supra.
Upon reviewing the transcript in the instant case, I find nothing in the record to affirmatively show that the confession admitted into evidence was not a product of the illegal arrest and detention. The trial judge never considered the issue, because he was of the opinion that the arrest was constitutional.
Therefore, I am of the opinion that this cause should be remanded for further proceedings to determine whether or not the confession was the product of the illegal detention.[1]
[1] Even though the affidavit is insufficient on its face to support probable cause, our decisions permit the State to show by adducing testimony that there were sufficient facts presented under oath to the issuing magistrate to constitute probable cause. See Clenney v. State, 281 Ala. 9, 198 So. 2d 293 (1966); § 3.9, Searches & Seizures, 17A Ala.Dig. | September 13, 1973 |
d116534e-7c7a-4e7d-9ddf-b74911f81c86 | Loch Ridge Construction Company, Inc. v. Barra | 280 So. 2d 745 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 745 (1973)
LOCH RIDGE CONSTRUCTION COMPANY, INC., a corp., and Art Rice Realty Co., Inc., a corp.
v.
A. J. BARRA and Lorraine E. Barra.
S.C. 133.
Supreme Court of Alabama.
July 19, 1973.
*746 William L. Irons, Birmingham, for appellants.
Corretti, Newsom, Rogers, May & Calton, Birmingham, for appellees.
HARWOOD, Justice.
In the suit below the plaintiffs, A. J. Barra and his wife Lorraine E. Barra, sought damages because of the alleged fraud practiced upon them by the defendants Loch Ridge Construction Company, Inc., and Art Rice Realty Company, Inc., in the sale of a house sold by Art Rice Realty Company which house was constructed by Loch Ridge.
It was averred that the defendants represented that the house had been built in a good and workmanlike manner and in accordance with plans and specifications as approved by the Veterans Administration and the Federal Housing Administration, whereas the house had not been built in a good and workmanlike manner nor in accordance with either the plans and specifications for the house nor in accordance with the plans and specifications approved by the Veterans Administration or the Federal Housing Administration.
The plaintiffs claimed damages of $25,000.00, punitive damages included.
*747 A jury trial resulted in a verdict for the plaintiffs, damages being assessed at $37,500.00. On motion of the plaintiffs the amount of damages was reduced to $25,000.00.
The defendants filed a motion for a new trial, which was overruled after the filing of a remittitur by the plaintiffs of $10,000.00, as ordered by the court.
The defendants thereafter perfected this appeal.
In the hearing below, Mrs. Barra testified that while looking for a home she chanced upon the Loch Ridge subdivision. There she met Mrs. Betty Powers, a sales representative for Art Rice Realty Company who showed her the house in question located at 3454 Loch Ridge Trail. Mrs. Powers assured her, in response to her questions, that this house was well built and would be in perfect condition when moved into, and that all workmanship and materials were of the best grade. Mrs. Powers further stated that the house had been built according to the Veterans Administration's and Federal Housing Administration's specifications and that the Veterans Administration did the inspecting on the house, and that the house carried a full year warranty covering all defects in the house.
Later, her husband accompanied her to the house where they saw Mrs. Powers. On this occasion, Mr. Barra asked Mrs. Powers specifically if the house was built according to Veterans Administration and Federal Housing Administration specifications and she assured him it was so built. Mrs. Powers told them they were getting an excellent home because it would be a model home in the "Parade of Homes." Art Rice, President of Art Rice Realty Company, also told them at the closing of the sale that they were fortunate to get this house as it was going to be a model home.
At a meeting to close the sale, Art Rice, and Ralph Roberts, then President of Loch Ridge Construction Company, both stated that the house was built according to Veterans Administration and Federal Housing Administration specifications, that it was inspected by Veterans Administration, that the house would be in perfect condition when the Barras moved in.
Mrs. Barra further testified that at no time was she or Mr. Barra showed any plans or specifications, nor did either of them know of any plans or specifications other than what they had been told by Mrs. Powers, Mr. Rice, and Mr. Roberts. According to Mrs. Barra, it was more than a year after they moved into the house that they became aware that they could obtain the plans and specifications of the house from the Veterans Administration.
The sale of the house was completed on 28 August 1969, the purchase price being $30,500.00. The next day the Barras moved into the house.
Mr. Barra's testimony was corroborative of Mrs. Barra's as to the representations made by Mrs. Powers, Art Rice, and Ralph Roberts. Mr. Barra further testified that it was in reliance upon these representations that the house was purchased.
At the time of the closing of the sale, the Barras were given a warranty of completion to the effect that construction of the house was in substantial conformity with plans and specifications approved by the Federal Housing Commissioner or the Veterans Administrator. The warranty also provided that it was in addition to, and not in derogation of all other rights the purchaser might have under any other law or instrument. This warranty was executed by Loch Ridge Construction Company.
Shortly after moving in, and continuing, many defects began to appear in the house. Mr. Barra would write letters to Art Rice Realty Company and Loch Ridge concerning the defects. The air conditioning system did not cool the house and made a lot of noise; the kitchen cabinets were warped *748 and nicked; the vanity in the upstairs bathroom had to be taken out and redone; in the spring of 1970, leaks developed in the roof; in July 1970, the basement became flooded by leakage from the condensation hose on the air conditioner; in late August of 1970, the dishwasher came loose from the wall and the kitchen floor became spongy from leakage and the floor tiles came loose in a considerable area; also in the fall of 1970, a water closet in the "middle bathroom" came loose and water flooded the bathroom, and basement; and the driveway cracked.
The above are but a few of the problems the Barras were beset with. We will not list them all.
Mr. Barra testified that though he had written Mr. Art Rice and Mr. Roberts several letters concerning the defects in the house, he did not know at the time of writing these letters that the matters about which he complained were in fact departures from the plans and specifications for the house, as he had never been shown any plans and specifications by anyone.
In October 1970, he wrote the Veterans Administration in Montgomery inquiring if he could obtain plans and specifications for his house. Being informed he could obtain such plans from the Veterans Administration upon the payment of $14.00, he forwarded this amount to the Veterans Administration and received the plans and specifications in October 1970. It was then he became aware that the house had not been built according to the plans and specifications.
Two registered engineers, Mr. James Ray Spence, and Mr. Andrew Payne, were employed individually and separately by Mr. Barra to make an inspection of his house in relation to the plans and specifications.
Mr. Payne testified he examined the house as to its conformity to the plans and specifications for its construction, and also as to whether its construction conformed to the minimum building requirements of the Veterans Administration and the Federal Housing Administration.
Mr. Payne testified that the combined air conditioning and heating unit was completely inadequate to properly cool and heat the house, and the ducts and vents were too small. The heating and cooling system conformed to neither the plans and specifications nor the minimum building requirements of the Veterans Administration or the Federal Housing Administration. This defect could be corrected only by installing a new heating and cooling system, including new ducts and vents.
The attic was improperly insulated. While the specifications called for four inches of insulation, portions of the floor of the attic were bare, while about an inch of insulation was on other portions, and probably four or five inches in the corners. The plans called for a louver to be installed on the rear of the house, but this louver was missing. The ventilation in the attic was nil, with the collection of hot air resulting. Even had a proper sized cooling system been installed, it could not have adequately cooled the house without ventilation in the attic.
The specifications called for panelling in the kitchen, but the kitchen was not panelled. Also, a stainless steel sink was called for but an enamel sink had been installed. Certain cabinets called for in the specifications had not been installed in the kitchen.
The joists had not been fastened to each other as called for in the specifications.
The board and batten work above the brick work on the outside of the house had been installed improperly as had the entrance doors. In some cases finishing nails had been used instead of flat headed nails. The boards would pull off of the finishing nails with warping.
Mr. Payne also noted a complete absence of foundation drains as required by the minimum building requirements of the *749 Federal Housing Administration. Such condition resulted in an excess of moisture, mildew, and dampness in the lower portion of the house.
In short, Mr. Payne testified that in many instances the house was not constructed according to the plans and specifications, nor in compliance with the minimum building requirement of the Veterans Administration and the Federal Housing Administration, and in many instances the house was not constructed in a workmanlike manner.
In Mr. Payne's opinion, the costs of correcting the various defects and variances which he found would be $10,275.00, according to an itemized breakdown he had prepared during his inspections.
Mr. James Ray Spence, the second consulting engineer employed by the Barras to inspect the house in reference to its compliance with the plans and specifications for the house, and with the minimum building requirements of the Veterans Administration and the Federal Housing Administration, testified as to his inspection of the house and its variances from the above mentioned standards. Mr. Spence's testimony was substantially corroborative of Mr. Payne's testimony in regard to the variances and deficiencies between the house and the said plans, specifications, and minimum standards of the Veterans Administration and the Federal Housing Administration. It was Mr. Spence's opinion, however, that the costs of bringing the house into compliance would be $7,468.00.
Mr. Spence further testified that the defects he found and the variances from the plans and specifications could not be determined by an average buyer without having plans and specifications before him.
Richard L. Harris of the Alabama Gas Corporation, testified that the computation of air conditioning load factor for the Barra house prepared by his company was based on an attic fan being installed, and the house being properly insulated.
For the defense, Mrs. Powers, and Mr. Ralph Roberts testified that they had made no representations to the Barras concerning the house other than it was Veterans Administration inspected, and that it would be on the Parade of Homes. Mr. Roberts testified that the house was Veterans Administration inspected.
In this connection, Mr. Gene Haynes testified that he was a construction analyst with the Veterans Administration. His duties are to check plans submitted to the Veterans Administration as to substantial conformance with minimum standards. Mr. Haynes did not personally make any compliance inspection on the Barra house; but such inspections were made by a fee basis compliance inspector, the fee being paid by the builder.
Mr. Haynes testified that a final completion inspection was made on the Barra house on 22 August 1969, which inspection report did not reveal any deficiencies.
On 13 February 1970, Mr. Haynes personally inspected the Barra house. He reached the conclusion that certain items which were the responsibility of the builder, approximately 35 in number, were either not in substantial conformity with the minimum building requirements of the Veterans Administration nor with the plans and specifications of the house, or were done in an unworkmanlike manner.
Mr. Noland Tucker, a witness for the defendants, testified that he was construction foreman for Loch Ridge Construction Company until April of 1970. He was present at the first inspection and at the move-in inspection made by the Veterans Administration. According to Mr. Tucker, certain deficiencies revealed at the move-in inspection were corrected to the Barras' satisfaction.
On cross-examination, Mr. Tucker testified he was not familiar with all the minimum building standards of the Federal Housing Administration at the construction of the Barra house. He did not know *750 whether the Barra house had been built in accordance with its plans and specifications. He said he could not produce the original set of plans used on the job site. He always carried the plans and specifications back to the office of Art Rice, to Mr. Ralph Roberts, on completion of a job.
Mr. Tucker further testified he had known Art Rice, Jr., for seven years; that Mr. Rice was the owner of both the Art Rice Realty Company, and Loch Ridge Construction Company, and as far as he was concerned Art Rice Realty Company and Loch Ridge Construction Company were one and the same.
Mr. Ed Crowe, a witness for the defendants, testified that he was carpenter superintendant and later construction superintendant for Loch Ridge Construction Company. He testified he was responsible for correcting certain items in the construction of the Barra house brought to his attention by the Veterans Administration inspector, and that he made these corrections. Upon receiving a complaint from the Barras that the air conditioning was not working properly, he installed a ventilator in the roof. Mr. Crowe admitted this ventilator was not in accordance with the plans and specifications of the Veterans Administration. In fact, the evidence shows that the plans called for horizontal louvers in the gable of the house, and the ventilator apparently referred to by Mr. Crowe consisted of a few holes drilled in the gable. On cross-examination, he testified his attempt to correct the leaks in the roof were not in accordance with the plans and specifications for the house.
Mr. Crowe further testified that at the time he was working on the Barra house no specifications were attached to the plans nor did he ever see any specifications on the job site, nor any minimum property standards required by the Veterans Administration or Federal Housing Administration.
Appellant's assignments of error 38, 39, and 40, are grouped for argument. They assert error because of the court's action in overruling the demurrers to the respective three counts of the complaint.
Under these grouped assignments, appellant first argues that the alleged fraud was averred as a conclusion only, without stating facts out of which the fraud arose.
Each of the counts avers in substance that the defendants represented to the plaintiffs that the house in question was constructed in a good and workmanlike manner, was in perfect condition, and constructed in compliance with plans and specifications submitted to and approved by the Federal Housing Administration and the Veterans Administration, and that such representations were false. Such averments sufficiently state the facts out of which the fraud arose.
Appellants next argue that the court erred in sustaining the demurrer to each count in that each shows on its face that it was barred by the statute of limitations of one year.
Even though a complaint at law shows on its face that the cause of action is barred by the statute of limitations, such defense cannot be asserted by demurrer. It must be specially pleaded. Tonsmeire v. Tonsmeire, 281 Ala. 102, 199 So. 2d 645. This is the reason that otherwise a plaintiff would thereby be prevented from pleading an exception which would prevent the bar. Tutwiler Coal, Coke & Iron Co. v. Wheeler, 149 Ala. 354, 43 So. 15.
The record shows that the appellants did in fact file pleas specifically raising the matter of the statute of limitations. The appellees' demurrers to the said pleas were overruled. In this connection the minute entry recites: "Plaintiffs join issue on defendant's pleas."
Both parties presented evidence as to whether fraud was practiced by the appellants or the appellees, and as to when the fraud was discovered by the appellees.
*751 Thus the question of when the cause of action occurred was a question of fact for the jury, and under the tendencies of appellees' evidence, the jury was warranted in finding that the fraud was not discovered by the appellees until a date within one year of the filing of the suit, thus bringing the question within the influence of Section 42, Title 7, Code of Alabama 1940. We find no merit in assignments of error 38, 39, and 40.
Under a group of some twenty-one assignments of error, the appellants have averred error in the denial of their motion for a new trial on the basis that the damages awarded were excessive. It is appellants' contention that only compensatory damages could be awarded.
Counsel for appellants reach this conclusion by a bootstrap operation of referring only to evidence offered by the appellants, and ignoring the evidence contradictory thereof presented by the appellees.
The code sections controlling cases of fraud and deceit are Sections 108, 110, and 111 of Title 7, Code of Alabama 1940.
In Hall Motor Co. v. Furman, 285 Ala. 499, 234 So. 2d 37, this court wrote:
Evidence presented by the appellees tended to establish actual damages of either $10,275.00 (Payne's testimony) or $7,468.00 (Spence's testimony). It is obvious therefore that a part of the damages awarded must be considered as punitive damages. The trier of fact is authorized to award punitive damages where legal malice, willfulness, or a reckless disregard accompanies the invasion of the rights of another. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484. The imposition of punitive damages in cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. Treadwell Ford Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24.
Furthermore, the court clearly and adequately instructed the jury as to their authority to award punitive damages, and the conditions under which they might, or might not, award such damages. Counsel for the appellants at the conclusion of the court's oral constructions announced he had no exceptions to take to the instructions. Thus the instructions of the court, consonant with the theory on which the case was tried, to which the appellants assented by their silence, became the law of the case by which the jury was bound, and even had the instructions been erroneous, which they were not, the matter could not be made a predicate for error by first taking notice thereof on a motion for a new trial. See Lee v. Gidley, 252 Ala. 156, 40 So. 2d 80.
From an examination of the evidence, it is our conclusion that the jury was authorized to assess punitive damages in this case.
By another group of some fourteen assignments of error, the appellants assert error in the action of the court in overruling their motion for a new trial on the basis that the suit was barred by the statute of limitations of one year.
*752 Section 42, Title 7, Code of Alabama 1940, provides:
It is true that defects appeared in the house shortly after the Barras moved into it. Many of these were of a minor nature. The Barras knew that the cooling and heating system did not satisfactorily cool or heat the house, but had no way of knowing that such poor functioning was due to the inadequate size of the cooling and heating machine and ducts, the lack of ventilation in the attic and the absence of proper insulation, rather than to some maladjustment in the machine. The same might be said of defects in the installation of the roof, since leaks did not develop until the spring of 1970.
The appellants contend that the Barras were imprudent in not discovering that the house was not built in compliance with the plans and specifications for its construction, as approved by the Veterans Administration, since the appellants had duplicate plans and specifications which the Barras could have seen had they asked. By the same token it would appear that good faith would have impelled the appellants to disclose the existence of these plans and specifications instead of maintaining a complete silence during all the period of the Barras' travail imposed on them in connection with the massive defects, many of them hidden, resulting from the poor construction of the house.
It was not until the Barras obtained the plans and specifications from the Veterans Administration in the latter part of August 1970, that they discovered the variances between the construction of the house as called for in such plans and specifications, and as it was actually constructed. Suit was filed on 3 November 1970.
Where there is evidence reasonably affording an inference as to whether a plaintiff was defrauded, and if so, when the plaintiff discovered the fraud, the case is one for the trier of fact. Letson v. Mutual Loan Society, 208 Ala. 285, 94 So. 288. In Birmingham Bond Co. v. Lovell, 5 Cir., 81 F.2d 590, it is stated:
The question now being considered was made an issue under the pleadings, evidence was received pro and con thereon, and the court in its instructions to which no exceptions were reserved, instructed the jury fully and in detail as to the legal principles applicable to such findings as they might make on the evidence. After a careful consideration of all the evidence, it is our view that we would not be justified in concluding that the jury was not warranted in the conclusions reached.
In one set of assignments of error, the appellants have grouped some 21 assignments for argument. Clearly, one or more of these assignments are unrelated to the others and are without merit. Counsel for appellees insist that we pretermit consideration of all of this group of assignments. We also note, however, that counsel for appellants have an additional group of nine assignments which would appear to be the same as some of those in the 21 group, though the unrelated assignments are not included in this last group of nine assignments, all of which appear to be sufficiently related to justify their being argued jointly.
The points raised in this latter group relate to the action of the trial court in denying appellants' motion for a new trial on the ground that one of the jurors, James C. Murphy, during the voir dire examination *753 of the jury venire by counsel for the appellees, had failed to make any response to a question as to whether any of the jurors had a speaking or nodding acquaintance with Ed Crowe. This same question was also addressed to the jurors concerning a number of other named persons.
At the hearing on the motion for a new trial, Edgar P. Crowe testified that James C. Murphy, a juror in the Barra case, was his neighbor, and had been since August 1964. Their children are friends and play together. Their wives are also friends.
Sometime in 1970, he had occasion to saw up a tree that had fallen over the driveway of Mr. Murphy. Mr. Murphy and one of his sons was present. The son asked whose saw it was and he replied it belonged to "the Loch Ridge Contractors, Art Rice." A general conversation then ensued as to "where I worked and what I done and what type of house we built." In a "general sense" Mr. Murphy asked what kind of house Loch Ridge built and, "I told him basically we built a good house, the frame was good. Naturally there was short cuts to save money. I think every builder does it." At this time, Mr. Crowe said he stated he was having some problems with some houses in Loch Ridge subdivision "in a general sense it was mentioned."
On cross-examination, Mr. Crowe testified that the Barra house was not mentioned. He had no further conversation with Mr. Murphy concerning Loch Ridge from that time on. He first knew Mr. Murphy was on the jury when he testified as a witness for about twenty minutes on the third day of the trial in 1972.
Mr. Crowe further testified that Mr. Murphy is a friend of his, they socialize together, and have a good relationship. He knows Mr. Murphy to be an honorable man.
On redirect examination, Mr. Crowe testified that in his conversation with Mr. Murphy in 1970, in explaining what was meant by taking short cuts, was that: "We will take short cuts in paint, don't buy the best paint, just like everybody else. Its * * * every builder I have been around takes short cuts to save a little money."
On recross-examination, Mr. Crowe testified that he had not testified at the trial as to short cuts, but he had told Mr. Murphy that they took short cuts "* * * we don't buy the most expensive paint, the most expensive paneling. There are four or five grades of paint you can buy." He sees Mr. Murphy pretty regularly. He comes down and plays football and basketball with Mr. Murphy and his children.
The doctrine of our cases prior to the opinion of this court in Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330, was to the effect that the failure of prospective jurors to properly respond to questions propounded to them on their voir dire examination entitled the movant to have his motion for a new trial granted. Sanders v. Scarvey, 284 Ala. 215, 224 So. 2d 247, and Leach v. State, 31 Ala.App. 390, 18 So. 2d 285, are illustrative of the cases enunciating this doctrine.
Upon further consideration of this doctrine in Freeman v. Hall, supra, it was observed that while the statements of the doctrine to be found in the earlier cases are correct as broad generalizations, they should not be automatically or mechanically applied without due consideration of the factual background of the particular case in which the point arises.
In a thorough review of the question and of former cases of this court and of the then Court of Appeals of Alabama, as well as the cases of our sister states on the subject, this court summarized its conclusions as follows:
The questioning of Mr. Crowe by counsel for appellants at the hearing on the motion for a new trial, was directed toward showing the close friendship between Crowe and the juror Murphy, as well as the friendship between their two families. This same theme is emphasized in appellants' argument in brief. Having established this cordial relationship between Crowe and the juror Murphy, it seems anomalous that a contention should be made that any bias or prejudice against the appellants might flow from Murphy's acquaintanceship with Crowe. While such situation might be tenable had bad feelings existed between Crowe and Murphy, we see no basis for concluding under the evidence presented that the appellants were probably injured in any of their substantial rights in this instance. Apparently the experienced and able trial judge so concluded, and we find no justifiable basis upon which to conclude that he abused his discretion in the premises.
Under assignments of error Nos. 54, 55, 56, 60, 74, 75, and 77, appellants contend that the court erred in denying them a full cross-examination of appellees' expert witness, Spence. The record in this regard merely reflects that after cross-examining Mr. Spence extensively relative to a cement sidewalk placed in the rear of the house, which was not called for in the plans or specifications, and further cross-examining him as to whether Bermuda grass had been planted all the way to the rear line of the lot rather than only 15 feet as called for in the plans and specifications, counsel for appellants then asked Mr. Spence if he had looked at the livingroom, to which Mr. Spence replied he had.
Counsel for appellees then objected to the question on the grounds that counsel for appellant was attempting to exonerate the appellants by showing that in some respects the house met, or more than met, the plans and specifications. The court then sustained the objection observing he did not see the materiality of the question. It is to be observed, however, that the question had already been answered at the time of the court's action.
In substance, the counts of the complaint averred fraudulent representation by the appellants that the house had been built according to plans and specifications approved by the Federal Housing Administration and the Veterans Administration, and that these representations were false. The appellants filed pleas of the statute of limitations, and a plea of the general issue. Under the plea of the general issue, the issue presented was whether in the construction of the house there were substantial variances from plans and specifications and not whether in some aspects the house had been constructed in accordance with such plans.
Counsel for appellants did not pursue this line of questioning further after the court's ruling.
Under the issue made by the pleadings, the court was correct in his observation as to the materiality of the evidence which counsel had pursued by his previous questions, and further, as the matter is presented under the state of the record, it is difficult to see that anything is presented for our review. We hold that appellants can take nothing under these assignments.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and McCALL, JJ., concur. | July 19, 1973 |
cd9c90f8-c6b2-4539-8561-1893269629fb | Board of Com'rs of Alabama State Bar v. Jones | 281 So. 2d 267 | N/A | Alabama | Alabama Supreme Court | 281 So. 2d 267 (1973)
In re BOARD OF COMMISSIONERS of The ALABAMA STATE BAR
v.
R. B. JONES.
In the Matter of R. B. Jones.
SC 225.
Supreme Court of Alabama.
August 2, 1973.
Rehearing Denied August 30, 1973.
*268 Charles E. Tweedy, Jr., Jasper, S. Eason Balch, Birmingham, for appellant.
W. H. Morrow, Jr., Montgomery, for the Grievance Committee of the Birmingham Bar Assn.
PER CURIAM.
This is an appeal from a penalty of suspension from the practice of law for a period of 90 days imposed on appellant (Jones) by the Board of Commissioners of the Alabama State Bar (State Bar). The Grievance Committee of the Birmingham *269 Bar Association filed two complaints, consisting of three charges in each complaint, charging Jones guilty of violating or failing to comply with Rule 25, Section A; Rule 35, Section A, and Rule 36, Section A, of the Rules Governing the Conduct of Attorneys in Alabama. All charges allege misconduct growing out of two "quickie" divorce cases. Complaint one involves charges in the Cheney divorce while Complaint Two involves charges in the Schaffert divorce.
Charge I of each Complaint charges that Jones "did file or prosecute, or aided in the filing or prosecution of a divorce suit before the Circuit Judge of the Circuit Court of Winston County, 25th Judicial Circuit of Alabama, namely [names of parties], wherein the complaint and testimony of complaint represented to the Court that the complainant was a bona fide resident of the State of Alabama, when, in truth and in fact, said attorney knew, or had reasonable cause to believe, that neither the complainant nor the respondent was a bona fide resident of the State of Alabama". This is an alleged violation of Rule 25, Section A, which reads as follows:
"...
Jones was found guilty of this charge.
Charge II of each Complaint alleges that Jones "was associated in the practice of law with J. Robert Huie, a disbarred and unlicensed attorney residing in Birmingham, Alabama, and in association with J. Robert Huie furnished to [name of complainant] what purported to be a certified copy of a final decree of divorce in the case of [style of case], Circuit Court of Winston County, 25th Judicial Circuit of Alabama." This is an alleged violation of Rule 35, Section A, as follows:
Jones was found not guilty of this charge.
Charge III of each Complaint alleges that Jones "referred a client, [name of complainant], a non-resident of the State of Alabama, to J. Robert Huie, a disbarred and unlicensed lawyer residing in Birmingham, Alabama, or to the then secretary of J. Robert Huie, for the purpose of obtaining an Alabama divorce, with knowledge or reasonable cause to believe that neither [names of parties], was a bona fide resident of the state of Alabama." This is an alleged violation of Rule 36, Section A, as follows:
Jones was found guilty of this charge.
In the Cheney divorce, competent evidence adduced on behalf of the State Bar revealed that Ronald Lawton Cheney, a graduate of Harvard Law School, and a *270 practicing lawyer in Cambridge, Massachusetts, and his wife, Kathleen, were separated as husband and wife in March, 1966, while living in Cambridge. She stayed in the apartment until 1970. He moved out of the apartment upon their separation. She is now in a mental institution. In December, 1968, Mr. Cheney testified by deposition that he was referred to Jones by John Barta, a practicing lawyer. Cheney says that he called Jones by telephone in early January, 1969, and related to Jones that he and Kathleen were anxious to obtain a divorce and asked Jones if he could get them an Alabama divorce. Cheney says that Jones responded that he could. An agreed price was $600.00. He stated that he mailed a property settlement with a cover letter in early January, 1969, to Jones. Jones was to mail Cheney an answer and waiver which Cheney would execute and return to Jones along with a check for $600.00. Cheney testified that he received an answer and waiver but could not say from whom it came. He did not have a letter from the sender, nor did he have the envelope in which the answer and waiver was mailed.
Jones, testifying in his own behalf, stated that he had several telephone conversations with Cheney, mailed the answer and waiver, received a $600.00 check, which he cashed and paid over to Miss Cox, Mr. Huie's secretary, and introduced Mrs. Cheney to Miss Cox.
As to the telephone conversations, Jones testified that Cheney did not telephone him, represented himself to be a lawyer and stated that he and his wife were considering a divorce; that he (Cheney) had checked Mexico, Nevada and other places about a divorce which he "desperately needed"; that he told Cheney that there was a local bar rule and that it was necessary to prove twelve months' residency; that the State Bar had a rule prohibiting people from out of state coming in and getting a divorce and that he did not handle these matters.
Jones further testified in this connection that he advised Cheney against an Alabama divorce and cited Alabama cases on the subject of divorce and advised Cheney that since he (Cheney) was a lawyer, he should also satisfy himself about an Alabama divorce. Jones further testified that Cheney later called him by telephone again and said that he was satisfied that "Alabama divorces were okay" and requested on a personal basis that he relate the procedures in the Alabama courts.
Jones stated that in this second telephone conversation Cheney requested that he be sent an answer and waiver form, which Jones did. Jones also testified that Cheney called a third time and advised him that he was executing the waiver and that he was going to send it to Jones together with a check for $600.00.
Miss Cox testified that K. C. Edwards served as attorney for Kathleen Kenefick Cheney in January of 1969, when Mrs. Cheney came to the office in which Miss Cox worked. Miss Cox stated that K. C. Edwards met with Mrs. Cheney in the office in which Miss Cox was working; that Jones had no part in helping Mrs. Cheney obtain a divorce; that Jones did introduce Mrs. Cheney to her; that in this connection Jones stated in the presence of Mrs. Cheney to Miss Cox that he did not handle "that type matter" and "would not handle it" and then he left; that after K. C. Edwards arrived and talked to Mrs. Cheney, she decided to "go ahead and get the divorce"; that while Mrs. Cheney gave Mr. Edwards the information and they discussed the grounds for divorce, Miss Cox typed up Mrs. Cheney's statements which she signed; that Mr. Edwards signed the complaint; that all her activities on behalf of Mrs. Cheney took place under the responsibility of Mr. Edwards; that any divorce decree that might have come out of that transaction with Mrs. Cheney was handled directly by Miss Cox and Mr. Edwards and that "Mr. Jones had nothing to do with it".
*271 As to the Schaffert divorce, Jones' activities were essentially the same except he never personally met Mrs. Schaffert, the complainant.
(1) The finding of not guilty as to Charge II requires a finding of not guilty as to Charge III as a matter of law.
(2) The pleadings (the formal charge) are defective as a matter of law for failure to include an essential element of the offense.
(3) To be violative of Rule 25(b), Jones' conduct must be proved to have been as attorney for a complainant as prescribed by the Rule.
(4) The proof does not substantiate that Jones was acting as attorney for a complainant.
(5) As to Charge III, when the specific act charged is governed by one of the rules of conduct, such rule establishes the standard by which such conduct is to be measured.
(1) The gravamen of Charge II and Charge III are essentially different and no legal inconsistency results from a finding of not guilty as to Charge II and a finding of guilty as to Charge III.
(2) Niceties of pleading are not required in such proceedings.
(3) The spirit, rather than the letter, of the rules will be looked to in determining a violation and thus the evidence shows that Jones aided in the procurement of a "quickie" divorce.
(4) While the spirit of the rule does not require an attorney-client relationship, nonetheless, the fact has been shown that such a relationship did exist.
(5) An attorney may be guilty of "conduct unbecoming" even though he is not charged or proven guilty as to a specific rule of conduct.
We reject the first of appellant's contentions that the finding of guilty as to Charge III cannot stand in face of the not guilty finding as to Charge II. Only where substantially the same facts constituting a single course of conduct are alleged as violations of two separate rules, does the finding of not guilty as to one preclude a finding of guilty as to the other. In re Carroll, 287 Ala. 29, 247 So. 2d 350; In re Tarver, 290 Ala. 87, 274 So. 2d 61.
Charge Number II in each Complaint charges that Jones "was associated ... with ... a disbarred ... attorney, and in [such] association... furnished ... what purported to be a certified copy of a final decree of divorce ..." in violation of Rule 35, which reads, "No [lawyer] shall [b]e associated in the practice of law with another ... who is then ... disbarred from the practice of law ...". While Charge III in each Complaint contains the words "a disbarred... lawyer", these words are merely descriptive and are superfluous to the gravaman of this charge. On the other hand, it is the association with a disbarred attorneyconduct which is prohibited by Rule 35which is made the gravaman of Charge II. Therefore, the finding of not guilty as to Charge II does not of itself dictate a not guilty finding as to Charge III.
We also reject the second of appellant's contentions that Charge I and Charge III of each Complaint are defective as a matter of pleading for the reason that one of the essential elements as prescribed by the respective rules forming the basis of each charge is omitted.
As to Charge I of each Complaint, the State Bar does not contend that Jones "did file or prosecute" the actions, but that he "aided in the filing or prosecution" of a *272 quickie divorce suit. Reduced to its barest essentials, this charge reads: "... that Jones ... aided ... in the filing of [a] suit ... seeking a divorce wherein the complaint and testimony of complainant represented to the court that the complainant was a bona fide resident of the State of Alabama, when ... [he] knew, or had reasonable cause to believe that neither [party] was a bona fide resident of the State of Alabama."
This charge is an alleged violation of so much of Rule 25(b) as reads as follows:
As to Charge III of each Complaint, the essential language is that Jones "referred a client ..., a non-resident of the State of Alabama, to J. Robert Huie ... for the purpose of obtaining an Alabama divorce, with knowledge or reasonable cause to believe neither [party] was a bona fide resident of the State of Alabama."
Although Charge III is an alleged violation of Rule 35 (conduct unbecoming an attorney), the specific misconduct alleged (with the exception hereinafter noted) is the conduct expressly prohibited by the second alternative under Rule 25(b), as follows:
Superimposition of each charge and the corresponding portion of Rule 25(b) reveals that the phrase "as attorney ... for [such] complainant"words contained in the Ruleis omitted from the charge.
This Court is committed to the proposition that niceties of pleading have no place in a disciplinary proceedings, and we are unwilling to hold that the stated charges are defective, as a matter of pleading, for failure to track the above referred to language of the Rule. See In re Fite, 228 Ala. 4, 152 So. 246, which holds in part:
See also In re Stuart, 257 Ala. 184, 57 So. 2d 874.
Such holding, however, is not dispositive of appellant's next contention that the omitted language ("attorney for a complaint") constitutes an essential element of the offense charged which is necessary of proof in order to sustain the conviction. The threshold issue is whether the State Bar in the instant case must prove only that Jones aided in the filing or prosecution of a "quickie" divorce as stated in the charge, or must it prove that Jones aided in the filing or prosecution of a "quickie" divorce as attorney for a complainant as stated in said Rule.
We hold that the latter part of this question must be answered in the affirmative and that the State Bar must prove that Jones aided in the filing or prosecution of a "quickie" divorce as attorney for a complainant as stated in Rule 25(b). The history and background of the "quickie" divorce *273 rule (Rule 25) is far too familiar to the bench and bar of this state to require recitation at this point. Suffice it here to state that its purpose was to put an end to a notorious practice of fraud upon our courts in the form of perjured testimony by non-resident complainants in divorce actions. Rule 25 says in effect that where a divorce complainant invokes the jurisdiction of the court by swearing falsely as to Alabama residency, and this fact of non-residency is known to the complainant's attorney, such attorney will be held professionally liable for such illegal act. The vicarious guilt imposed upon the attorney by this Rule must of necessity arise out of the attorney-client relationship; and, consequently, "as attorney for a complainant" are not words carelessly or inadvertently used, but rather they constitute language purposefully and judiciously employed by the Rule to meet due process requirements. We think it is clear, therefore, that both the spirit and the letter of the Rule require that we interpret the words "as attorney for a complainant" as an essential element of the offense.
Having so concluded, the issue as recast becomes: Are we convinced from the evidence that the necessary incidents of the attorney-client relationship attached so as to render Jones liable for the fraud perpetrated upon the court by the complainant? We answer this question in the negative and hold that at the time of the filing of the complaintand the testimony of the complainant representing to the court that she was a bona fide resident of AlabamaJones did not stand in an attorney-client relationship with the complainant and was not at that time acting "as attorney for a complainant".
In order to create an attorney-client relationship, we hold that there must be a contract of employment between the attorney and the client, the same as in other cases of contract. In 5 Am.Jur., § 29, page 278, it is said:
Also in 7 C.J.S. Attorney and Client § 65, page 848, we find a reiteration of this same principle, namely:
Again, a clear statement of this rule of law is found in a Louisiana case, Delta Equipment and Construction Co. v. Royal Indemnity Co., La.App., 186 So. 2d 454, page 458, viz:
It has long been the law in Alabama (and indeed it is elementary) that the mutual assent of the parties to the same thing, and in the same sense, is an essential element to every contract. Hodges v. Sublett, 91 Ala. 588, 8 So. 800. As far back as 1888, in the case of Houston v. Faul, 86 Ala. 232, 5 So. 433, this Court held as follows:
The defendant is presumed innocent until his guilt is established. The burden of proving his guilt is on the State Bar and the prosecution, having the affirmative of this issue, must sustain such burden by proof. In re Carroll, supra; Ex Parte Acton, 283 Ala. 121, 214 So. 2d 685.
Without commenting on all the evidence except as otherwise set forth, the Court notes that both Cheney and Barta were practicing attorneys; also, Barta stated he had looked up cases and satisfied himself about Alabama divorces, and according to Mrs. Schaffert had told her they were legal. It was Jones' testimony that he told both lawyers there was a rule against such divorces and cited each of these lawyers cases to this effect. Barta did state he looked into the Alabama law. It is further noted when Mrs. Cheney came to Alabama, Jones told her he did not handle this type case. Also noted is the fact that we are convinced Jones received no part of the fee, and, in fact, the attorney for the State Bar in his oral argument before the Court substantiated this fact.
At this point we feel constrained to comment that Jones' general reputation was excellent as was his general reputation for truth and veracity, and that Jones could be believed on oath even where he was interested in the results of the matter.[1] This was substantiated by seven of the Circuit Judges of Jefferson County, the District Attorney and other public officials of Jefferson County, and some eighteen active members of the Birmingham Bar Association where Jones was in active practice. Of these eighteen, several of them had been former presidents of the Birmingham Bar Association, one State Bar president, and others very active attorneys. That such a large number of reputable members of the bench and bar should come forth and attest to the accused's good character and general reputation is worthy of note and deserving of our consideration.
We have noted also the statements of some of our other higher courts in such cases dealing with the conduct of an attorney. In the Florida case of State v. Young, 30 Fla. 85, 11 So. 514, we find this statement:
......
Considering all the evidence, and applying the above stated legal principles thereto, we are at the conclusion that the chain of events necessary to create the legal incidents required of the attorney-client relationship was broken prior to the commission of the culpable conduct sanctioned by the Rule in question. To hold otherwise would be tantamount to the interpretation that "aid in the filing or prosecution" is used in the Rule in a different context from "file or prosecute" insofar as "attorney for a complainant" is concerned. *275 It is obvious that while each of the alternatives ("files" or "aids in filing") has a separate filed of operation, they must both be read in the same context in that whether the accused attorney "files or prosecutes" or "aids in the filing or prosecution", such conduct in order to be culpable must in either event be "as attorney for a complainant". The Court is of the opinion, therefore, that the defendant be found not guilt of Charge I in each of the two Complaints, and it is so ordered.
On the other hand, the State Bar contends that Charge III in each Complaint, which is an alleged violation of Rule 36 (conduct unbecoming an attorney) and not an alleged violation of Rule 25(b), has been proved, irrespective of whether Jones "serve[d] as referring ... attorney for such complainant." The question here is: When the State undertakes to charge a violation of Rule 36 (conduct unbecoming an attorney) by specifying the doing of an act prohibited by another rule, must each of the essential elements of the latter Rule (25(b)) be proved in order to constitute a violation of the former Rule (36)?
We answer this question in the affirmative and hold that where the charge sets forth a course of conduct which has been dealt with by a specific rule, such rule establishes the standard to be applied, and we will not rewrite or otherwise modify such standard. In other words, the conduct of Jones must not be measured by some subjective standard under Rule 36, but rather it must be judged by the ascertainable standard of guilt established by Rule 25(b) which the State Bar has promulgated, and this Court has approved, relative to the conduct of attorneys in the area of "quickie" divorces. When so judged, the evidence falls short of proving that Jones referred a client "as attorney for such complaint" for the reasons set forth under our discussion of Charge I.
Having concluded that the State Bar has failed to reasonably establish the guilt of Jones as required by law, considering all the facts in the case, we are of the conclusion that Jones should be, and hereby is, found not guilty of all charges; and we now, therefore, discharge the appellant, R. B. Jones.
Reversed and rendered.
HEFLIN, C. J., and MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
MERRILL, J., dissents.
COLEMAN, HARWOOD and BLOODWORTH, JJ., concur in dissent.
MERRILL, Justice (dissenting):
As I understand from the testimony and briefs, the following are some of the undisputed facts:
1. Cheney asked appellant by telephone if appellant could obtain a divorce for Chenney's wife and appellant "responded that he could."
2. Appellant asked Cheney to send him the property agreement between him and his wife and advised Cheney that he would have to sign "a waiver of notice in appearance" and that Cheney's wife would have to come to appellant's office.
3. Appellant informed Cheney that the fee would be $600.00. This figure was furnished appellant by Annette Cox, secretary to K. C. Edwards and/or J. Robert Huie, both attorneys who have been disbarred because they were in the "quickie divorce" racket.
4. In this and subsequent telephone conversations with Cheney, appellant mentioned no other attorney than himself.
5. Cheney wrote a letter to appellant about the matter and also sent the property settlement agreement.
*276 6. Cheney received an answer and waiver from appellant, executed it and returned it with a check for $600.00 payable to appellant, along with a letter of transmittal.
7. Cheney had a telephone conversation with appellant concerning the arrangements for Cheney's wife to come to Alabama.
8. Cheney's wife came to Birmingham and went to appellant's office. Appellant escorted her to the office of J. Robert Huie and introduced her to the secretary, Annette Cox.
9. Appellant took Mrs. Cheney to Annette Cox for the purpose of obtaining a divorce.
10. Appellant handed the check for $600.00 to Annette Cox, who requested him to take the check to the bank and bring her the cash. Appellant complied with this request.
11. Annette Cox typed the decree, it was sent to the Winston County Circuit Court, In Equity, and the signed decree was mailed to Mrs. Cheney.
1. John J. Barta, a Massachusetts attorney, asked appellant in a telephone conversation about getting a divorce for his client, Mrs. Schaffert, and appellant said he would send Barta an answer and waiver.
2. Appellant told Barta the attorney's fee would be $600.00.
3. Barta received a letter from appellant which recited as follows:
"Dear John:
4. Barta returned the executed answer and waiver to the appellant with a check in the sum of $600.00 payable to the appellant accompanied by a letter of transmittal dated February 20, 1969.
5. Barta had another telephone conversation with the appellant and set up the appointment for this client.
6. In that telephone conversation, the appellant told Barta that the client would not have to remain in Alabama more than one day.
7. Mrs. Schaffert went to the office of the appellant in Birmingham and returned to her home in Massachusetts the same day.
8. Upon arrival at appellant's office, a secretary took Mrs. Schaffert to another office in the building where a discussion was had with someone else and a secretary, and Mrs. Schaffert signed some papers.
9. In neither of the above telephone conversations did the appellant mention any attorney other than himself as the attorney to handle and proposed divorce.
10. The answer and waiver and $600.00 check were received in the office of the appellant and delivered to Annette Cox.
11. Annette Cox requested appellant to cash the check and bring her the cash. The appellant complied with this request.
12. Mrs. Schaffert received in the mail a certified copy of a divorce decree.
Title 46, § 25, Code 1940, provides in part that this court may review the action of the board of commissioners, "and may, on its own motion, and without the certification of any record, inquire into the merits *277 of the case and take any action agreeable to their judgment."
In reviewing disbarment or suspension proceedings, this court possesses inherent power as well as specific statutory authority to take such action as is agreeable to our judgment; and we may adopt the findings of the commissioners or may alter or modify them. Ex parte Newton, 265 Ala. 650, 93 So. 2d 164; Ex parte Cooke, 263 Ala. 481, 83 So. 2d 195; Ex parte Grace, 244 Ala. 267, 13 So. 2d 178; Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671; Tit. 46, § 25.
Pursuant to the above authorities, I do not care to have any judge, attorney or layman in Alabama to think that. I would hold, under these facts that appellant did not "aid in the filing or prosecution of any" divorce suit in a court in Alabama with knowledge or reasonable cause to believe that neither party to such cause was a bona fide resident of the State of Alabama, especially where, as here, appellant admitted that he knew that the parties in both of these cases were not residents of Alabama.
In this day when technicalities are to be avoided, it appears that the punishment proposed by the Board of Commissioners of the Alabama State Bar is set aside on the technicality that the attorney-client relationship did not exist between appellant and Mrs. Cheney in that "quickie divorce" and appellant and Mrs. Schaffert in her "quickie divorce."
Appellant is a qualified attorney and he knew he was aiding in getting a "quickie divorce," and even permitted himself to be the conduit for the delivery of the $600.00 fee in each case so that the signature of a qualified lawyer would appear on the check as endorser rather than a disbarred attorney who had no right to practice law in the courts of this state.
I respectfully dissent.
COLEMAN, HARWOOD and BLOODWORTH, JJ., concur.
[1] As to bad reputation, Justice Knight, speaking for this Court as then constituted, in Ex Parte Thompson, 228 Ala. 113, 152 So. 229 (1933), said: "When he ceases to be a man of good repute, he forfeits his right to continue as a member of the bar." | August 2, 1973 |
1896cdb9-a0ab-49b4-a0d7-74dc761bbcd2 | Boyd v. State | 285 So. 2d 138 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 138 (1973)
In re William BOYD
v.
STATE.
Ex parte William Boyd.
SC 551.
Supreme Court of Alabama.
November 1, 1973.
Rowan S. Bone, Gadsden, for petitioner. No brief for the State.
COLEMAN, Justice.
Petition of William Boyd for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Boyd v. State, 51 Ala.App. , 285 So. 2d 134.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, McCALL and JONES, JJ., concur. | November 1, 1973 |
2c09e5c3-a2d1-4899-817b-a405358b6ddf | Walker v. State | 287 So. 2d 923 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 923 (1973)
In re Joe Eddie WALKER
v.
STATE of Alabama.
Ex parte Joe Eddie Walker.
SC 441.
Supreme Court of Alabama.
November 8, 1973.
John M. Heacock, Jr., Huntsville, for petitioner.
No brief for the State.
*924 FAULKNER, Justice.
It is almost inconceivable in this socalled age of enlightenment that one person would be killed by another in an argument over the trivial subject of who is to cook the chicken. But, that is what happened in this case.
Joe Eddie Walker was convicted of murder in the second degree by a jury in the Circuit Court of Madison County, Alabama who set his punishment at 99 years imprisonment. The case arose out of a bizarre set of facts.
In the early evening, on September 5, 1970, Walker, his wife, and children, accompanied by another couple drove around the community visiting folks. At approximately 8:00 or 9:00 P.M. they stopped at a bootlegger's house and began "bottling around." They consumed a quantity of beer, wine, and whiskey. They left there and proceeded to the Walker house in the other couple's automobile.
Upon arriving at their house, the Walkers departed their friends' automobile. At that time Walker's wife and the other woman had some "fussing and cussing" between them. The other couple left. When they entered the house, Walker asked his wife to cook him some chicken. She told him to cook it himself. He told her again, "`You go in the kitchen like I said and cook that chicken.'" She said, "`You cook it your own damn self.'" With that rebuke, Walker walked to his bedroom to get his shotgun which was loaded with #4 shot. Mrs. Walker got a beer bottle and an iron skillet from her kitchen. The battle began. As Mrs. Walker was advancing on Walker, he fired a shot which hit the door. Instead of retreating, Mrs. Walker advanced further toward Walker with her bottle and skillet, saying, "`Joe you done shot me. You just got to kill me now.'" Walker complied, and shot her dead. Under this and other evidence in the case the question was whether Walker killed in self defense. The jury was not convinced. Walker filed an appeal to the Court of Criminal Appeals. Counsel for Walker on appeal was not the same as counsel for him at the trial. Walker, being an indigent, was provided a transcript at State expense.
One of his assigned errors on appeal was that the transcript did not contain the closing arguments of counsel. A second ground alleged that defendant was not allowed to cross-examine a State's witness as to his motive and intent. A third ground in the petition alleges that the original judgment entry did not show that defendant's counsel was present with him at the time of sentencing and that it was amended nunc pro tunc by the trial court after issuance of a writ of certiorari by the Court of Criminal Appeals, to show counsel present with defendant when he was sentenced.
There were two writs of certiorari issued by the Court of Criminal Appeals on application of the State for correct copy of records of the Circuit Court of Madison County to show whether defendant was represented by counsel at the time the jury returned the verdict and at the time he was sentenced, and for certification of a true and correct copy of the records of the Circuit Court showing the corrected judgment entry in conformity with the amendment nunc pro tunc ordered by the trial court and a writ of certiorari issued on application of Walker directed to the Clerk of Madison County Circuit Court requiring him to forward to the Court of Criminal Appeals a certified copy of the judgment entry made by the Circuit Court concerning the sentencing of Walker.
Pursuant to the issuance of these writs by the Court of Criminal Appeals, there was duly certified to it the order of the trial judge amending the original judgment entry nunc pro tunc reflecting that counsel was present at the time the jury verdict was returned and at the time of sentencing, and affidavits of the Assistant District Attorney and trial counsel for Walker supporting the nunc pro tunc amendment; *925 judgment entry as amended showing that counsel for Walker was present when the jury verdict was returned and at the time of sentencing; original judgment entry which failed to show that counsel for Walker was present when the jury verdict was returned against him and at the time of sentencing.
Counsel for Walker moved to strike the order of the trial judge amending the judgment entry nunc pro tunc, and the affidavits supporting that amendment, and the amended judgment entry. The date shown on the original judgment entry is February 16, 1971. The amended judgment entry is dated June 20, 1972. The affidavit of the Assistant District Attorney is dated June 6, 1972, while the affidavit of trial counsel for Walker is dated June 7, 1972. The Court of Criminal Appeals affirmed. We granted certiorari.
These grounds in the petition for certiorari will be taken up in order of their appearance in the petition.
Petitioner states in his petition that the decision of the Court of Criminal Appeals is in conflict with prior decisions of this court on the same point of law.
The Court of Criminal Appeals held that the court reporter in reporting the case was not required to report arguments of counsel. Our statute on this subject is Title 13, § 262, Code of Alabama 1940, Recompiled 1958.[1] There is no mandate in the statute requiring the court reporter to take stenographic notes of arguments of counsel. This court stated in Embrey v. State, 283 Ala. 110, 214 So. 2d 567 (1968) if counsel wishes to preserve for review any ruling of the trial court made during closing arguments, he must object and point out to the court that portion of the argument to which he objects. When that is done it is made a part of the record. Without this we have nothing to review.
In Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1955), the Supreme Court of the United States held that indigent defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts. This holding rested on the constitutional guaranties of equal protection and due process. In Mayer v. City of Chicago, 404 U.S. 189, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971), the U.S. Supreme Court, citing Griffin, again stated that the State must provide the indigent as adequate and effective appellate review as that given appellants with funds. This means, the court said, that the State must afford the indigent a record of sufficient completeness to permit proper consideration of his claims. However, the court stated that a "`record of sufficient completeness' does not translate automatically into a complete verbatim transcript." Other means may be found by the State to afford an adequate and effective review to the indigent. In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. *926 431, 30 L. Ed. 2d 400 (1971), the U.S. Supreme Court held that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense on appeal.
We are of the opinion that the decision of the Court of Criminal Appeals is not in conflict with prior decisions of this court or the Supreme Court of the United States. That court has recognized the financial burden placed on the States by holding that an alternative to a transcript may provide for an adequate and effective appellate review. This State has been most liberal in providing transcripts for indigent defendants. There is nothing in the transcript here, afforded defendant by the State, to show that he may have been prejudiced by the closing argument of counsel. If he had been prejudiced by any remark of counsel in the closing argument, trial counsel could have objected and requested the trial court to direct the court reporter to take notes of the objectionable remarks. In that way this court would have a record to review. We cannot speculate on what was said or might have been said by counsel in the closing argument. Counsel must point out to the reviewing court, in the record, the error complained of; otherwise we would end up in a mad maze of conjecture and speculation. Our statute providing for the duties of court reporters in taking stenographic notes makes no distinction between a "paying" defendant and an indigent defendant.
Petitioner alleges error in the trial court's sustaining the State's objection to questions on cross-examination of officer Eddy as to why he did not attempt to locate missing pieces of an iron skillet found at the scene of the crime. Eddy had testified that there was a hole in the iron skillet, but that he did not look for any of the missing pieces to it. Apparently the missing pieces were important to defendant under his plea of self defense.
The Court of Criminal Appeals in upholding the trial judge's ruling cited as its authority Hardie v. State, 260 Ala. 75, 68 So. 2d 35 (1953) and Pyles v. State, 262 Ala. 1,78 So. 2d 816 (1954).
In Hardie the defendant was asked on direct examination whether just before the killing he was "excited", "frightened" or "nervous". Objection by the State was sustained. In Pyles the witness was asked on re-direct examination the question, "`Will you tell us why you didn't come out the first time he called for you?'" The trial court sustained an objection to this question. These cases held that the rule is that a witness may not testify as to his uncommunicated intent, purpose, or motive. It is to be noted that these questions to the witnesses in these cases were dealing with direct examination. Judge J. Russell McElroy of the Tenth Judicial Circuit of Alabama, a distinguished jurist and legal scholar, criticizes this rule in his treatise, Law of Evidence in Alabama, 2d Edition, Vol. 1, page 251, as being bizarre. Judge McElroy states that this "singularly bizarre rule in Alabama . . . exists in no other jurisdiction . . ."
We do not comment on the rule as applied in Hardie and Pyles since we are concerned with the question of cross-examination of a witness in this case. In Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334 (1937), this court held:
We affirm the rule as stated in Armour & Co., and hold that it was error on the part of the trial court to sustain an objection, *927 on cross-examination of officer Eddy, to questions seeking to determine his motive and intent in the conduct of his investigation.
It is now well settled in the field of criminal law that counsel must be present with the defendant at the time of sentencing. The pioneer case decided by the U.S. Supreme Court was Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1947). This principle was again emphasized by the Supreme Court in Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967). The original judgment entry of trial court did not show that counsel was present with defendant when he was sentenced. The judgment entry was amended nunc pro tunc by order of the trial court after issuance of writs of certiorari by the Court of Criminal Appeals. The nunc pro tunc amendment sinks or swims depending upon whether the error was clerical or judicial. Title 7, § 567, Code of Alabama 1940, Recompiled 1958, provided that "[T]he circuit courts may, at any time within three years after the rendition of final judgment, upon . . . application of either party, amend any clerical error . . . or other mistake of the clerk . . . when there is sufficient matter apparent on the record or entries of the court to amend by."
A number of cases decided by this court on amendments nunc pro tunc are reviewed in Alabama Hide and Tallow Company v. Pincheon, 282 Ala. 404, 211 So. 2d 896 (1968). We see no need to review them again in this opinion.
It is our opinion that the amendment nunc pro tunc here was judicial rather than clerical. There was not sufficient matter on the record or entries of the court to amend by. The amendment was based on affidavits of trial counsel and an Assistant District Attorney. It was error to allow the amendment. Alabama Hide and Tallow Company v. Pincheon, supra.
The rule of law on amendments nunc pro tunc announced in Rogers v. State, 29 Ala.App. 153, 193 So. 871 (1939) and Franklin v. State, 29 Ala.App. 306, 197 So. 55 (1940), and cited by the State, dealt with correcting clerical errors apparent in the record. They are not authority for amending judicial error.
Reversed and remanded.
All the Justices concur.
[1] § 262. Duties of court reporterThe official court reporter shall attend in person, except as otherwise herein provided, the sessions of court held in the circuit for which he is appointed, and in every case where directed by the judge or requested by a party thereto, he shall take full stenographic notes of the oral testimony and proceedings, except argument of counsel, and note the order in which all documentary evidence is introduced, all objections of counsel, the rulings of the court thereon, and exceptions taken or reserved thereto. When directed by the said judge he shall attend the investigations of the grand jury and there take such notes of the testimony as directed by the solicitor or foreman. The original stenographic notes of such court reporter in each case or proceeding officially reported shall be preserved by him and treated as a part of the records of the respective courts, and upon his retirement from office, shall be turned over to the clerks of such courts. In equity cases where the testimony is taken orally before the judge, the court reporter, whenever ordered by the judge, shall transcribe his stenographic notes of such oral testimony, and file same in the cause. For such transcript of his stenographic notes the court reporter shall be paid a fee of ten cents for each hundred words thereof, which shall be taxed as a part of the costs in the case. | November 8, 1973 |
6c72aae0-d888-4d21-b8ec-8368c2d61b6d | Miller v. Samples | 283 So. 2d 424 | N/A | Alabama | Alabama Supreme Court | 283 So. 2d 424 (1973)
Mrs. Aileen MILLER and William Thomas Stewart, a minor
v.
Ronald Eugene SAMPLES.
SC 100.
Supreme Court of Alabama.
September 27, 1973.
Hardin & Stuart, Birmingham, for appellants.
Charles A. Stewart, Jr., Birmingham, for appellee.
HEFLIN, Chief Justice.
This case was originally assigned to another member of this court on June 19, 1973 and reassigned to the writer on September 17, 1973.
This is an appeal from an order denying the motion for a new trial made by the plaintiffs-appellants. The appeal is from *425 two cases consolidated for trial before a jury in which recovery was sought as a result of a traffic accident involving William Thomas Stewart, a minor, and the defendant-appellee, Ronald Eugene Samples. Both complaints (one by the minor, the other by his mother, Mrs. Aileen Miller) allege negligence on the part of the defendant-appellee. At the conclusion of the evidence, the jury returned a verdict for the defendant and the plaintiffs filed a motion for a new trial which, after a hearing, was overruled; hence this appeal.
The plaintiffs allege in substance that they did not receive a fair trial since one juror did not disclose on voir dire examination that he had previously been involved in an automobile accident causing personal injuries, had been named as a defendant in a lawsuit as a result thereof, and had been represented by the law firm of Huie, Fernambucq & Stewart in the matter. Because of the juror's failure to disclose these facts, it is alleged that the plaintiffs were prevented from making a reasonable and responsible use of their peremptory challenges. It is argued that the refusal of the trial court to grant a motion for a new trial in such a situation is an abuse of judicial discretion and is, therefore, erroneous.
In resolving the case at bar, the court need look no further than Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970) (on remand) and cases cited therein. In Freeman, the appellant contended, among other things, "that the trial court erred in refusing to grant a new trial on the ground that certain jurors failed to indicate in response to questions propounded by the attorneys for the parties whether any member of the venire had been plaintiffs or defendants in a lawsuit." After remand for the finding of additional facts, the Freeman trial court found that two jurors had been defendants in collection suits, but that one such juror did not consider the collection action a lawsuit (the case being settled out of court) and the other was incapable of understanding the questions put to him on voir dire and also incapable of persuading any other juror in the deliberation room. Furthermore, the trial court found that the two jurors were not influenced in their deliberation by the suits filed against them.
The court in Freeman reiterated the general rules that "parties have a right to truthful answers to questions propounded on voir dire," (Sanders v. Scarvey, 284 Ala. 215, 224 So. 2d 247, which followed Leach v. State, 31 Ala.App. 390, 18 So. 2d 285, cert. den. 245 Ala. 539, 18 So.2d 289) and "[t]he failure of prospective jurors to respond to questions properly propounded on voir dire entitles the movant to a new trial." Then this court went on to state that such general rule cannot be applied without regard to the factual background of a particular situation. The court held "that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is Whether this has resulted in probable prejudice to the movant." (emphasis added) Moreover, the court emphasized that the grant or denial of the motion was within the discretion of the trial court and that this court "will review the trial court's ruling . . . only for abuse of discretion in its determination as to probable prejudice."
The court in Freeman promulgated the following guidelines to aid trial courts in their effort to determine probable prejudice.
In the case at bar, the hearing on the motion for a new trial produced these apparently undisputed facts: That Mr. Maldon Moore, a juror in the original trial, was named as a defendant in two lawsuits growing out of an automobile accident in 1966, and was represented by the firm of Huie, Fernambucq & Stewart; that Mr. Moore did not respond to voir dire questions because he was unaware he had been a defendant in a lawsuit and did not remember being served with a complaint or related papers and was not aware that he had ever been represented by the firm of Huie, Fernambucq & Stewart; that initially and up to the last of 6 or 8 ballots in the deliberation, Mr. Moore voted in favor of the plaintiffs; that such law firm represented Moore's insurance company which requested him to file an appearance on behalf of Mr. Moore and that Mr. Huie (the lawyer of the firm that handled the cases) had never talked with Mr. Moore either at his office or by phone; that Mr. Moore's cases were settled out of court; and finally that Mr. Moore did not know any member of the firm of Huie, Fernambucq & Stewart.
Based on the undisputed evidence taken at the hearing on the motion for new trial, this court cannot say that the trial court abused its discretion in its determination of probable prejudice.
Applying the Freeman guidelines to the case at bar, while it is clear that the questions on voir dire were not ambiguous and the matter inquired of is most material, still six years had intervened between Mr. Moore's accident and the trial of the case at bar, there is no evidence of willfulness on his part in failing to respond, and there is undisputed testimony that he did not recall being served with process of any kind and did not know he was involved in a prior lawsuit.
This court concludes that the trial court did not abuse its discretion in overruling the motion for a new trial and the case is due to be affirmed.
Affirmed.
MERRILL, HARWOOD, MADDOX and FAULKNER, JJ., concur. | September 27, 1973 |
56fc7b7b-db2b-4c50-a47b-4bdbd839b1c2 | Owens v. State | 282 So. 2d 417 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 417 (1973)
In re Norman OWENS
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 476.
Supreme Court of Alabama.
August 30, 1973.
William J. Baxley, Atty. Gen., Montgomery, and James G. Lee II, Sp. Asst. Atty. Gen., Tuscaloosa, for petitioner.
No brief for respondent, for appellee.
FAULKNER, Justice.
The State's petition for certiorari seeking our review of the decision of the Court of Criminal Appeals, 291 Ala. ___, 282 So. 2d 402, is denied, because it clearly fails to comply with Supreme Court Rule 39, which is the only method of review of the Courts of Appeals by certiorari.
As this court has so often pointed out, Rule 39 requires that one of the grounds therein contained be averred before this court can consider the petition.
Writ denied.
MERRILL and HARWOOD, JJ., concur.
MADDOX, J., with whom HEFLIN, C. J., joins, concurs specially.
MADDOX, Justice (concurring specially).
I concur that the writ should be denied. By concurring to deny the writ, I want to point out that writs of certiorari are frequently denied without any consideration *418 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). I do not desire to 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).
HEFLIN, C. J., concurs. | August 30, 1973 |
d4356d12-9573-42f6-8cee-60a707e29738 | Taylor v. State | 287 So. 2d 901 | N/A | Alabama | Alabama Supreme Court | 287 So. 2d 901 (1973)
In re Archie TAYLOR
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. Attorney General.
SC 430.
Supreme Court of Alabama.
September 27, 1973.
*902 William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, petitioner.
No brief for respondent.
MADDOX, Justice.
The central issue presented is the role of defense counsel in a criminal prosecution. Archie Taylor was convicted of first degree murder and sentenced to life imprisonment. Except for Taylor's alibi testimony, *903 there was no substantial conflict in the evidence presented at the trial.
Four eye-witnesses, who knew both defendant and deceased, testified that Taylor accosted the deceased, Jimmie Lee Mason, in South Birmingham, that the two men argued and Taylor shot and killed Mason. Taylor was arrested almost immediately after the murder a short distance from the scene.
The trial court appointed counsel to represent Taylor. His attorney made a thorough investigation of the facts in the case. Counsel learned early in his investigation that the first officer to arrive found a partially opened knife near deceased's body. The officer had taken custody of the knife to preserve it as evidence, and had left then to pursue Taylor. When this officer returned to the scene, he found the deputy coroner examining the deceased. He told the coroner about the knife. Other witnesses testified that they did not see Mason with a knife.
The defense attorney also went to the coroner's office and inquired whether a blood sample was taken from Mason's body to determine if he had been drinking. Counsel learned that a blood sample had been taken, and that according to the State Toxicologist's report, the deceased was intoxicated shortly before death.
On several occasions before trial, defendant's attorney conferred with Taylor and told him about the knife and Mason's intoxication and that he could make out a good case of self-defense. Taylor replied, "Maybe we could, but I wasn't there." Defense counsel said, "Well, I cannot make out a case of self-defense if you weren't there." Taylor said, "Nonetheless, that is what I am going to say. I wasn't there."
Counsel begged Taylor to let him proceed with self-defense. On each occasion Taylor insisted that he could not plead guilty in good conscience. Counsel advised Taylor that without some evidence of selfdefense, the knife found near the deceased, and the deceased's state of intoxication could not be proven. Taylor said he understood this, but he could not admit killing the deceased.
Defense counsel also obtained an agreement for Taylor to bargain his plea. The prosecutor agreed to recommend a twenty year sentence if Taylor would plead guilty to a lesser charge. Taylor refused.
From indictment to trial, Taylor said he was in a cafe about two blocks from the murder scene and when he left the cafe, he saw an ambulance and a crowd of people gathered around. Two minutes before trial, he turned to his lawyer and said, "By the way, I do remember where I was. I was in jail." He produced a receipt from the warden at the county jail and claimed the date thereon was August 1, 1971.
The lawyer defended Taylor on his alibi, although strong evidence was presented to indicate that Taylor was lying. First, no one in the cafe had seen Taylor the morning of the murder. Secondly, the warden testified that what appeared to be August 1 on the receipt was actually August 7, one day after the murder.
The Court of Criminal Appeals noted that Taylor's attorney was "faced with a recalcitrant and uncooperative defendant who was adamant in `quarterbacking' his own trial."
During a recess in the main trial, the defendant's attorney told the trial judge about the knife and Mason's intoxication and that Taylor had refused to cooperate by not allowing him to defend him on self-defense. The trial judge told the attorney to "make voluminous notes, so that if he needed to remember almost immediately, or years later, that he would have enough notes to refresh his recollection about this, because in my opinion, the petitioner (defendant), through interference in this case, or because the case was the case it was, or whatever it was, after a long period of time in the penitentiary, then he *904 would come back and say that someone had improperly represented him."
Five days after his conviction, Taylor wrote a letter to the trial judge. In it the defendant said, "I am writing to ask you to reconsider may case for and (sic) appeal on the grounds of misrepresentation by my lawyer. He fail to product (sic) evidence in my faver (sic)."
The trial judge treated the letter as a motion for a new trial. The court appointed another lawyer to represent Taylor at the hearing on the motion and on appeal. Taylor testified at the hearing that, "He (i.e., his attorney at the main trial) haven't mentioned self-defense to me during the whole time he walked (sic) up to me." The attorney who represented Taylor during trial contradicted his client's testimony by restating matters already brought out; that early in the investigation he discovered the knife and that deceased was intoxicated; that he had pleaded with his client to let him introduce this evidence; that Taylor plead self-defense; and that Taylor refused to do so and vehemently denied that he shot and killed the deceased.
The trial court overruled Taylor's motion for a new trial.
On appeal, the Court of Criminal Appeals reversed Taylor's conviction and held that the motion for a new trial should have been granted. Taylor v. State, Ala.Cr. App., 51 Ala.App. 573, 287 So. 2d 889 (1973).
This court granted the State's petition for certiorari.
It affirmatively appears that after a full, independent investigation of the circumstances and facts, after consultation with his client, defense counsel recommended to Taylor that he admit to killing the deceased in self-defense. The record also clearly reveals that Taylor, on several occasions, said that he had an alibi and that, "I wasn't there."
Did the defense attorney fail to perform in his role as defense counsel? A majority of the Court of Appeals thought so. We do not think so, and must reverse that court.
It is well settled that every person is entitled not only to the assistance of counsel, but also to the effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527 (1932). Constitution of Alabama, Art. I, § 6. Also, the State must appoint counsel for an accused felon if he cannot afford to hire his own attorney. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963); Title 15 § 318(6), Code of Alabama, 1940, Recomp. 1958 (1971 Supp.).
This concept of "effectiveness" as a part of the Sixth Amendment's guaranty of assistance of counsel first appeared in Powell, supra.
In Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965), the Fifth Circuit Court of Appeals said:
The "mockery of justice" rule is frequently cited as a minimum standard of competence and efficacy.[1] Other factors often mentioned include the fairness of the trial as a whole, the reasonableness of counsel's assistance,[2] loyalty to client, good faith, and the nature and extent of counsel's pre-trial preparation and opportunity for conference.[3]
No one factor determines whether defendant is effectively represented in accord with due process of law. There is a wide range of acts and omissions which result in charges of ineffective counsel.
The nature of the problem of misrepresentation is further reason for the lack of an all-encompassing definition of "effectiveness" or "ineffectiveness." Effective assistance does not mean counsel is without error. What may later seem to be error may have been a trial tactic at the time. Further, conviction of a client does not prove the lack of skill or zeal on the part of counsel. See Mills v. State, 275 Ala. 217, 153 So. 2d 650, cert, denied, 375 U.S. 867, 84 S. Ct. 142, 11 L. Ed. 2d 95 (1963); Echols v. State, 276 Ala. 489, 164 So. 2d 486 (1964); Aldridge v. State, 278 Ala. 470, 179 So. 2d 51 (1965).
The proper role of defense counsel has received much attention by members of the judiciary and the legal profession. In 1963, the American Bar Association began formulating criminal justice standards relating to proper method of handling a criminal case. After careful and deliberate screening and drafting, seventeen Standards for the Administration of Criminal Justice have been approved. They provide guidance at each stage of a criminal trial from the police function to the last postconviction proceeding. The Standards, designed to strengthen the criminal justice system, are suggestion guidelines for use in the fifty states and the federal jurisdiction. See "The American Bar Association Standards for Criminal Justice: Prescription for an Ailing System," Tom C. Clark, 47 Notre Dame Lawyer 429 (1972); "Standards for the Administration of Criminal Justice," Howard C. Bratton, 10 Natural Resources Journal 127 (1970), also in 8 American Criminal Law Quarterly 146 (1970).
"The ABA Standards are neither revolutionary nor novel . . . .
"* * * In truth, the ABA Standards in most instances represent a distillation and restatement of what is already the best practice and procedure in many jurisdictions. They are a blend of clarification, simplification, unification, renovation, and modernization of the whole system. . . ." 47 Notre Dame Lawyer at 433.
The ABA Standards relating to The Defense Function, Approved Draft, 1971, provide in § 5.2 that a defendant must decide what plea he will enter. § 5.2 states:
"Control and direction of the case.
The commentary to the Standards is as follows:
"* * * The requirement that the defendant personally enter a guilty plea and that it be voluntary and informed carries the implication that it is the defendant who must make the choice. See Machibroda v. United States, 368 U.S. 487, 493 [82 S. Ct. 510, 7 L. Ed. 2d 473] (1962); Kercheval v. United States, 274 U.S. 220 [, 47 S. Ct. 582, 71 L. Ed. 1009] (1926); Orfield, Criminal Procedure from Arrest to Appeal 294 (1947)." Commentary, ABA Standards, The Prosecution and The Defense Function, § 5.2, p. 238. See also "The Standards of Criminal Justice in a Nutshell," William H. Erickson, 32 Louisiana Law Review 369, 403 (1972); "Counsel for the Prosecution and DefenseTheir Roles Under the Minimum Standards," Warren E. Burger, 8 American Criminal Law Quarterly 2 (1969); "Some Answers to Your Criminal Law ProblemsThe American Bar Association Criminal Justice Standards," Lawrence S. Margolis, D. C. Bar Journal, October-February 1973, p. 23.
What plea to enter is a decision which must be made voluntarily and intelligently, by the accused. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971); Martiznez v. People, 173 Colo. 515, 480 P.2d 843 (1971). See Comment, "Criminal Waiver: The Requirements of Personal Participation, Competence and Legitimate State Interest," 54 Cal.L.Rev. 1262, 1267-68 (1966).
In Commonwealth v. Forbes, supra, the Court cites with approval § 5.2(a) of The Defense Function. There, defendant, accused of first degree murder, pleaded guilty. The Court was satisfied that the plea was voluntary. Before trial, defendant requested the right to withdraw his guilty plea. Defendant's counsel threatened to withdraw from the case if defendant pursued his request, so defendant withdrew his request. The Court held, in part, that defendant's continuance with his guilty plea was involuntary since defendant was not informed of his right to change his plea and have new counsel appointed. If a guilty plea is induced by any act which renders it involuntary and not the *907 defendant's personal choice, it is void. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d at 271 (1973); Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 513, 7 L. Ed. 2d 473, 478 (1962).
In McClendon v. People, 174 Colo. 7, 481 P.2d 715, 719 (1971), the Colorado Supreme Court, citing § 5.2 of The Defense Function, said: "It is only when the question arises whether the defendant should plead guilty, waive a jury trial, or take the stand that defense counsel must be governed by and abide by the wishes of his client." (Emphasis added.)
The case before us is similar to the facts in Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971). Defendant was convicted of burglary. Appointed counsel had advised defendant to plead guilty to a lesser charge since his defense to the burglary charge was weak. Accused refused to follow the advice of counsel and stated that he wished to have his case tried. The lawyer then told defendant, "I am glad it is not me that is facing the court with the case that you have." Counsel also advised the court that accused had made some strong statements which would handicap him in representing defendant. After conviction, defendant claimed he did not receive effective representation, resulting in denial of a fair trial.
The Supreme Court of Colorado said:
The Court of Criminal Appeals says that counsel must control the litigation, and that when Taylor told his attorney what defense he must put up and when his attorney went with the alibi, "the attorney ipso facto surrendered to defendant's control of the law suit." We must disagree. It is true that generally defense counsel is responsible for trial strategy. § 5.2(b) The Defense Function. Matters of trial strategy, in the absence of a clear showing of improper or inadequate representation, are generally left to the professional judgment and discretion of the defense counsel. Edwards v. State, 287 Ala. 588, 253 So. 2d 513, 517 (1971). But the issue here is not one of trial strategy, but one of what type plea to enter. Taylor has yet to admit he killed Mason. Implicit in the matter of self-defense is an admission of the commission of a justifiable homicide. Many of the charges of ineffective representation by counsel have occurred in the post-Gideon era. Chief Justice Burger, when he was working on the Standards of Criminal Justice, candidly described what frequently happens:
In State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1, 9 (1973), the Supreme Court of Wisconsin expressly approved § 5.2 of The Defense Function to guide them in determining what constitutes "effective representation." That court said:
Counsel did all that was required of him. He carried out a thorough investigation of the facts without regard to the anticipated plea. He gave Taylor his candid opinion of all aspects of the case. He told Taylor that, considering the evidence, defendant had a good case of self-defense. After he had explored all relevant facts and analyzed the law, he advised Taylor to enter a guilty plea bargain. He used reasonable persuasion to assist Taylor in a sound decision.
He discussed the matter with the trial judge. He made a record of the circumstances surrounding the conflict between himself and Taylor and of the action taken. See § 5.2(c) The Defense Function.
In Harried v. United States, 128 U.S. App.D.C. 330, 389 F.2d 281, 284-285 (1967), the Court said:
"In assessing [such] a claim we look to the entire record. . . ."
Taylor failed to establish his claim. The ultimate decision of what plea to enter *909 rested with Taylor. He denied his guilt throughout.
It is difficult for us to imagine what more defense counsel could have done in view of Taylor's insistence of innocence.
For the reasons set out above, we hold that the Court of Criminal Appeals erred by reversing Taylor's conviction and remanding the cause for a new trial.
Reversed and remanded.
MERRILL, HARWOOD and McCALL JJ., concur.
BLOODWORTH, J., concurs specially.
JONES, J., with whom HEFLIN, C.J., and FAULKNER, J., join, concurs specially.
COLEMAN, J., not sitting.
BLOODWORTH, Justice (concurring specially):
I concur in the decision to reverse the Court of Criminal Appeals on the grounds that the decision as to whether to present an alibi or self-defense defense is properly decided by the defendant himself, based on the facts of the case. Defendant Taylor in this case clearly made his choice to present an alibi defense after receiving competent legal advice. His counsel ably presented this defense. Therefore, defendant had the benefit of effective assistance of counsel as required by Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).
JONES, Justice (concurring specially).
The impact of Gideon on American jurisprudence was not confined to the rights of the accused, but extended to the enhancement and dignity of the legal profession. The criminal justice system cannot constitutionally operate without the lawyer. Our Court by this opinion has now rightly provided the essential counterpart to this doctrine. If the lawyer, as advocate for the accused, is an indispensable part of the system, then the system that he honors must honor him; and it must not allow him to become a pawn for the proverbial shell game. He must be free to act out his full role. He is the professional representative of his clientnot his alter ego.
The fact that this landmark opinion results in the affirmance of a conviction must not be construed as striking a blow against individual rights. Conversely, in my opinion, the Alabama Supreme Court has this day heralded a resounding victory for the adversary system on behalf of the criminally accused.
HEFLIN, C.J., and FAULKNER, J., concur.
[1] See e.g., Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707 (1958); Busby v. Holman, 356 F.2d 75 (5th Cir. 1966); O'Malley v. United States, 285 F.2d 733 (6th Cir. 1961); Trammell v. State, 276 Ala. 689, 166 So. 2d 417 (1964); Hendricks v. State, 281 Ala. 376, 202 So. 2d 738 (1967); Odom v. United States, 377 F.2d 853 (5th Cir. 1967); United States v. Summerlin, 298 F. Supp. 929 (M.D.Ala.1969); United States v. Long, 419 F.2d 91 (5th Cir. 1969).
[2] MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960).
[3] See e.g., Smotherman v. Beto, 276 F. Supp. 579 (N.D.Tex.1967); Pineda v. Bailey, 340 F.2d 162 (5th Cir. 1965); "Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases," Jon R. Waltz, 59 Northwestern L.Rev. 289, 308-309 (1964).
[4] § 5.2 of The Defense Function is cited with approval in:
Morse v. People, 501 P.2d 1328, 1331 (Colo. 1972); Steward v. People, 498 P.2d 933, 934 (Colo.1972); McClendon v. People, 174 Colo. 7, 481 P.2d 715, 719 (1971); Martinez v. People, 173 Colo. 515, 480 P.2d 843, 844 (1971); People v. Brown, 54 Ill. 2d 21, 294 N.E.2d 285, 287 (1973); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268, 270-271 (1973); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1, 7-8 (1973); State v. Cross, 206 N.W.2d 371, 376 (Minn.1973); Sabella, United States ex rel. v. Follette, 432 F.2d 572, 576 (2nd Cir. 1970). | September 27, 1973 |
6f0812be-3161-497d-8ada-b939e098daf6 | Means v. State | 282 So. 2d 359 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 359 (1973)
In re Gary Bernard MEANS
v.
STATE.
Ex parte Gary Bernard Means.
SC 460.
Supreme Court of Alabama.
August 30, 1973.
J. Massey Relfe, Jr., Birmingham, for petitioner.
No brief for the State.
FAULKNER, Justice.
Petition of Gary Bernard Means for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Means v. State, 51 Ala.App. 8, 282 So. 2d 356.
Writ denied.
All the Justices concur. | August 30, 1973 |
a6a0b389-60b0-440e-90a4-e14d395b557d | Mid-State Homes, Inc. v. Anderton | 283 So. 2d 426 | N/A | Alabama | Alabama Supreme Court | 283 So. 2d 426 (1973)
MID-STATE HOMES, INC., a corp., et al.
v.
Robert ANDERTON et al.
SC 106.
Supreme Court of Alabama.
September 27, 1973.
*427 R. A. Norred, Birmingham, for appellants.
H. T. Foster, and John F. Proctor, Scottsboro, for appellees.
PER CURIAM.
This is an appeal from a final decree of the Circuit Court of Jackson County wherein the trial court refused to reform the description in certain instruments as sought by the complainants below and denied the prayer of complainants' amended bill that authority be granted them to remove a house from a parcel of land owned by two of the respondents.
On December 18, 1961, J. W. Anderton and Minnie B. Anderton conveyed to their daughter Mary Lou Cloud and her husband Charles, a parcel of land containing one-half acre, more or less, for the purpose of building a house thereon. On April 14, 1962, the Andertons executed a second deed to the Clouds for the purpose of changing the description in the first deed. The two deeds describe the same parcel of land although different descriptive terms are used in them.
Shortly after the Clouds received their deeds, they had a house constructed without having a survey made of the parcel of land described in the deeds to them from the Andertons. That house, which will sometimes be referred to as the first house, was not constructed entirely on the land described in the afore-mentioned deeds, but apparently the Clouds were not aware of this fact until long after the first house was built.
*428 In January of 1968, Jim Walter Corporation, hereinafter sometimes referred to as Jim Walter, was engaged in the business of constructing shell homes on land owned by others. The Clouds, after talking with Jim Walter's agent-salesman Jimmy Garner, entered into a building contract with Jim Walter and executed a mortgage to that corporation. The building contract and the mortgage were both executed on January 30, 1968. The property description used in both instruments was the same as that used in the first deed from the Andertons to the Clouds, that is, the deed of December 18, 1961. Garner, who wrote the description into those instruments, used the deed of December 18, 1961, which was delivered to him by the Clouds.
On April 8, 1968, the Clouds executed another mortgage to Jim Walter "FOR THE PURPOSE OF CORRECTING THE AMOUNT OF MORTGAGE, AMOUNT OF PAYMENTS AND LAST INSTALLMENT DATE" of the mortgage executed on January 30, 1968. The description used was the same as that used in the mortgage of January 30, 1968, and in the deed of December 18, 1961.
When the two mortgages were introduced in evidence, they each contained the description used in the second deed from the Andertons to the Clouds which description had been typed and placed over the original description by the use of Scotch tape. The record is silent as to who made these additions to the mortgages or when they were made. But the additions or changes do not bear on the questions presented on this appeal because, as indicated previously, the same parcel of land is described by each of the two descriptions.
The mortgage under date of January 30, 1968, was assigned by Jim Walter to Mid-State Homes, Inc. on February 15, 1968, and the mortgage of April 8, 1968, was assigned by Jim Walter to Mid-State on April 25, 1968.
The exact time when the Jim Walter home was constructed does not clearly appear from the record, but it was apparently completed by April 15, 1968.
The Clouds' first home was moved, and they moved into the Jim Walter home at a time not shown with certaintyprobably in the spring of 1968. The Clouds made payments on the Jim Walter home until May of 1969 when they stopped because they entertained the view that the house was not built on their land and was not constructed in accordance with the terms of their contract with Jim Walter.
In October, 1969, Mid-State as assignee of the mortgage of April 8, 1968, foreclosed that mortgage; and, at the foreclosure sale, became the purchaser of the property described therein.
After the foreclosure, Mid-State and the Clouds had surveys made of the land described in that mortgage, which surveys show that the Jim Walter home was not built on the land described in the mortgage. It had been constructed on land owned by Mr. and Mrs. Anderton, who as shown above were the parents of Mrs. Cloud.
Thereafter Mid-State and Jim Walter instituted this litigation against the Andertons and the Clouds for the purpose of reforming the description in the deed from the Andertons to the Clouds under date of April 14, 1962, and the description in the mortgage of January 30, 1968, so that those instruments would describe the parcel of land upon which the Jim Walter home was constructed.
In the stating part of their bill, the complainants averred that the descriptions set forth in the two instruments last referred to above were incorporated in those instruments "through the mutual mistake of fact of each of the parties to said instruments, and that it was the mutual intent and purpose of each of the parties to said instruments to incorporate therein, as the property *429 to be conveyed, transferred, assigned, or sold, a parcel of real estate, the true description of which is as follows: * * *"
The Andertons answered by denying the averments of the bill to the effect that the description in the two instruments was incorporated therein through mutual mistake and by alleging: "Your respondents aver that the complainant constructed a house on their property through a mistake on the complainant's part and not a mistake on the part of the respondents, and that the respondents make no claim to this house, but say that the complainants are not entitled to the property upon which the house is located, and have no claim to said property." (Emphasis Supplied)
Thereafter complainants filed an amendment to their bill wherein after taking note of the fact that the Andertons in their answer stated that they made no claim to the house averred:
The Clouds then filed their answer wherein they admitted that the Jim Walter home was not built on their property but denied the averments of the bill, as amended, to the effect that the deeds from the Andertons to them did not correctly describe the property which was intended to be conveyed.
The Andertons amended their answer by deleting therefrom the language which we quoted from their answer and by substituting in lieu thereof the following:
The complainants as cross-respondents answered Paragraph (d) of the Andertons' amended answer by denying that the Andertons were entitled "to be awarded the house therein referred to, or that they are entitled to any damages for trespass, or for a fair rental value."
Following a hearing wherein the testimony was taken ore tenus, the trial court ordered, adjudged and decreed as follows:
"* * *"
From that decree, the complainant Mid-State appealed to this court.
*430 Mrs. Minnie B. Anderton died after the appeal was taken. As to her, the appeal was revived in the name of her heirs at law prior to submission in this court. S. Ct. Rule 33. See Curry v. Holmes, 249 Ala. 545, 32 So. 2d 39.
The action of the trial court in denying complainants' prayer for reformation was grounded on the following findings:
The trial court's finding to the effect that the evidence failed to show fraud on the part of any of the respondents is not questioned. In fact, the complainants did not seek reformation on the ground of fraud on the part of any of the respondents.
As we have shown previously complainants' prayer for reformation was grounded on the averments that the descriptions sought to be reformed were incorporated in the two instruments "* * * through the mutual mistake of fact of each of the parties to said instruments * * *."
This court has repeatedly pointed out that in order to warrant equity to grant relief by reformation, the complainant has the burden of showing by evidence that is clear, exact, convincing and satisfactory that the instrument does not express the true agreement of the parties. Crane v. Blackburn, 187 Ala. 298, 65 So. 812; Hertzler v. Stephens, 119 Ala. 333, 24 So. 521; Hill v. Harding, 233 Ala. 343, 172 So. 98. The burden is also upon the complainants to show what, in fact, the parties had intended the writing should contain. Lipham v. Shamblee, 205 Ala. 498, 88 So. 569; Garrett v. Kirksey, 279 Ala. 10, 181 So. 2d 80.
When reformation is sought solely on the ground of mistake, no fraud intervening, mutuality of mistake is essential. Duckett v. Lipscomb, 287 Ala. 668, 255 So. 2d 12; Darden v. Meadows, 259 Ala. 676, 68 So. 2d 709; Grove v. Robertson, 255 Ala. 346, 51 So. 2d 528; Ballentine v. Bradley, 236 Ala. 326, 182 So. 399; Webb v. Sprott, 225 Ala. 600, 144 So. 569.
The testimony was taken ore tenus, hence, the finding of the trial court as to the facts is to be accorded all the presumptions indulged in favor of the verdict of a jury. Duckett v. Lipscomb, supra. After indulging that presumption we cannot say that the trial court's finding to the effect that mutuality of mistake was not shown is erroneous.
We take note of the fact that the trial court denied complainants': "request for reformation of the mortgages of January 30, 1968 and April 8, 1968 * * *." The trial court was in error in including the mortgage of April 8, 1968. The complainants did not seek reformation of that mortgage but did seek reformation of the deed from the Andertons to the Clouds which was executed in April of 1962. No question is raised in regard to this inadvertence on the part of the trial court and we think the decree denying reformation applies to the April, 1962, deed as well as to the mortgage of January 30, 1968, which was foreclosed.
The case of Hulsey v. Folsom, 286 Ala. 474, 241 So. 2d 889, not cited in briefs, has been carefully considered. The facts in that case are in some respects strikingly similar to the facts of this case but there is one factual distinction which renders the holding in the Hulsey case inapposite to the case at bar. In Hulsey it was said: "* * * It is apparent that every party to this transactionthe Dunns who originally deeded the land to the Hulseys, the Hulseys and Tri-Stateall thought that the deed described the land on which the *431 house was built. Each of the parties intended to convey the two acres of land on which the house was built. * * *" (286 Ala. at 477, 241 So.2d at 892)
In the instant case the evidence is susceptible of the conclusion that the Andertons did not intend to convey the land upon which the Jim Walter house was constructed. Certain it is that we cannot hold that the trial judge erred in not finding from the evidence that each of the parties intended to convey the one-half acre of land on which the Jim Walter house was constructed rather than the land described in the deeds and the mortgages.
It follows that the trial court did not err to a reversal in refusing to order reformation of the descriptions in the deed of April, 1962, and the mortgage of April 8, 1968, as prayed by the complainants.
In Subparagraph (2) of the trial court's decree quoted above it is said: "* * * and the prayer of the complainants to remove the house to the property upon which they have a foreclosure deed is denied." The complainants did not pray that they be permitted to remove the Jim Walter house to the land described in the mortgage which was foreclosed so we will treat that part of Subparagraph (2) of the decree last quoted above as being surplusage. The respondents only sought the right to remove the Jim Walter house from the land on which it had been built and did not pray that they be permitted to place it on any other tract of land.
Under the facts of this case we are unwilling to hold that the trial court erred in refusing to permit the removal of the Jim Walter house. Before that house was built a surveyor employed by complainants, or one of them, made a survey of the land described in one of the deeds from the Andertons to the Clouds. The surveyor staked out the property in accordance with the survey. Yet, an independent contractor on behalf of the complainants, or one of them, ignored the stakes as well as the survey and constructed the "shell home" on Anderton property. According to the respondent Anderton he told workmen who were engaged in constructing the house that they were building it on the wrong land. In response to this admonition Anderton was told in effect that the Jim Walter house was being constructed in accordance with the survey.
The complainants built only a "shell home." The Clouds completed it at considerable expense although the exact amount expended by them is not disclosed by the record.
We are clear to the conclusion that the trial court reached an equitable result in refusing to permit the complainants to remove the Jim Walter house from the Andertons' land. We are not called upon on this appeal to consider that part of the decree which may be said to award the "shell home" to the Clouds as opposed to the Andertons.
The decree of the trial court is affirmed.
Affirmed.
All Justices concur. | September 27, 1973 |
91a3a7c0-195d-468d-9131-b8232bed8214 | Halstead Contractor, Inc. v. Lowery | 282 So. 2d 913 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 913 (1973)
In re C. F. HALSTEAD CONTRACTOR, INC.
v.
Rubin F. LOWERY, as Administrator of the Estate of Rubin Harvey Lowery, Deceased.
Ex parte Rubin F. LOWERY, as Administrator of the Estate of Rubin Harvey Lowery, Deceased.
SC 453.
Supreme Court of Alabama.
September 13, 1973.
Frank Riggs and Richard Gill, Montgomery, for petitioner.
Harry Cole, Montgomery, for respondent.
FAULKNER, Justice.
Petition of Rubin F. Lowery for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that court in C. F. Halstead Contractor, Inc. v. Lowery, as Administrator, etc., 51 Ala.App. 86, 282 So. 2d 909.
In denying the writ in this case this court does not desire to be understood as approving or disapproving the language used or the statements of law contained in the opinion of the Court of Civil Appeals. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108 (1971).
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | September 13, 1973 |
f94495dd-cfdc-425c-85bb-beca0459a18f | Ellington v. State | 282 So. 2d 366 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 366 (1973)
In re Franklin ELLINGTON
v.
STATE.
Ex parte Franklin Ellington.
SC 467.
Supreme Court of Alabama.
August 30, 1973.
J. M. Sides, Anniston, for petitioner. No brief for the State.
HARWOOD, Justice.
Petition of Franklin Ellington for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Ellington v. State, 51 Ala.App. 12, 282 So. 2d 360.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | August 30, 1973 |
b693d4b7-9657-4858-a9ae-05554434218c | Horace v. VanBlaricon | 283 So. 2d 421 | N/A | Alabama | Alabama Supreme Court | 283 So. 2d 421 (1973)
James E. HORACE
v.
Ronnie Clay VanBLARICON.
SC 380.
Supreme Court of Alabama.
September 27, 1973.
*422 Kenneth R. Cain, Ozark, for appellant.
Cassady & Fuller, Enterprise, for appellee.
PER CURIAM.
This is an appeal from the Circuit Court of Coffee County by the plaintiff who suffers from an adverse jury verdict and denial by the trial court of his motion for a new trial. We affirm.
The plaintiff, James E. Horace, filed suit against Ronnie VanBlaricon in the Circuit Court of Coffee County on October 31, 1970 claiming damages for personal injury, loss of income and property damage. This action stems from an automobile collision at or near the intersection of Lee and Edwards Streets in Enterprise.
The lead car slowed to make a right turn off Lee Street into the driveway leading into a parking lot. Freeman Brunson, driver of the second car, testified that he *423 applied his brakes in order to avoid impact with the turning car. The third vehicle, a pick-up truck, was driven by Horace. The testimony is disputed as to whether he made a slow stop or a quick stop in order to avoid colliding with the Brunson car. The fourth car driven by Ronnie VanBlaricon, the defendant crashed into the rear of the third vehicle driven by Horace. The testimony is disputed whether VanBlaricon was following too closely to make a safe stop. At the scene of the accident Horace claimed no personal injuries, but later claimed severe injuries and loss of income as well as property damage. The verdict of the jury was in favor of the defendant.
Horace assigns as error the action of the trial court in overruling his motion for a new trial on the grounds that the verdict was contrary to the evidence and that the verdict was not sustained by the great preponderance of the evidence.
This court has said in Cobb v. Malone & Collins, 92 Ala. 630, 635, 9 So. 738, 740 (1891):
We will not attempt to set out all the evidence, but the testimony is disputed on the issues of whether the defendant was guilty of negligence in driving too closely behind plaintiff and also whether plaintiff was negligent in stopping or suddenly decreasing the speed of his truck.
On careful reading of the evidence, we are not clearly convinced that the verdict is contrary to the great weight of the evidence or that the verdict is wrong and unjust.
Horace also contends in his first four assignments of error that the trial court erred in not granting a motion for a new trial on the ground that the verdict was contrary to law. An assignment of error that the judgment or the verdict is contrary to law is not an adequate assignment of error because only adverse rulings of the trial court are subject to assignments of error on appeal. Allred v. Dobbs, 280 Ala. 159, 190 So. 2d 712 (1966); King v. Jackson, 264 Ala. 339, 87 So. 2d 623 (1956).
An assignment of error that the court erred in denying a motion for a new trial is a vicarious assignment as error of every well stated ground of the motion for a new trial adequately brought forth and argued in brief. James v. Governor's House, Inc., 284 Ala. 404, 225 So. 2d 815 (1969).
An assignment of error charging that the court's ruling on a motion for a new trial was contrary to law, or that the verdict of the jury was contrary to law, is too general and will not be considered on appeal because it does not point out specifically wherein the judgment or verdict was contrary to law. Pettus v. Shafer, 286 Ala. 625, 244 So. 2d 573 (1971); Allred v. Dobbs, supra; Danley v. Marshall Lumber & Mill Co., 277 Ala. 551, 173 So. 2d 194 (1965).
Horace attacks the giving of two of defendant's written charges in assignments *424 of error five and six. He argues that defendant's written charges four and seven were incorrect statements of the law. With this contention we cannot agree. Furthermore, if he felt these charges were misleading, Horace should have requested further explanatory charges. Salter v. Carlisle, 206 Ala. 163, 90 So. 283 (1921).
Horace assigns error that the court erred in its oral charge to the jury. We find no evidence in the record of an exception to the court's oral charge. This court has stated that an exception is necessary for review of an oral charge. Solnick v. Ballard, 218 Ala. 206, 118 So. 381 (1928). We are therefore precluded from any review of the court's oral charge.
Horace argues at great length in assignments eight and nine the insufficiency of defendant's plea of contributory negligence. Horace did not test such plea by demurrer and any defects therein were therefore waived. Louisville & Nashville Railroad Co. v. Hurt, 101 Ala. 34, 13 So. 130 (1893).
Affirmed.
All the Justices concur except COLEMAN, J., not sitting. | September 27, 1973 |
ccebb0b8-289e-4328-9aad-20ba5c1bd731 | Johnson v. State | 285 So. 2d 723 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 723 (1973)
Melvin Douglas JOHNSON
v.
STATE of Alabama.
SC 604.
Supreme Court of Alabama.
November 21, 1973.
David L. Barnett, Mobile, for appellant.
William J. Baxley, Atty. Gen., and Rosa Gunter Hamlett, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Melvin Douglas Johnson was tried by a jury in Mobile on a charge of selling heroin *724 to Danny Wayne Barnes. The jury found him guilty. He was sentenced to seven years imprisonment in the State penitentiary. He filed an appeal with the Court of Criminal Appeals. On November 12, 1973, the case was transferred to this court.
Danny Wayne Barnes was an undercover agent for the Mobile Police Department. He and an informer went to the Little Harlem Club on the night of March 4, 1972. There they met Johnson and Claude Crawford. Barnes told Johnson and Crawford that he was in Mobile to establish contacts for purchasing large amounts of heroin for his people in Huntsville, Alabama. Johnson and Crawford told Barnes that they could get any amount of heroin he wanted. Barnes wanted samples and gave Johnson $20. Barnes went with Johnson and Crawford to a place on Hospital Street. Johnson and Crawford left Barnes for four or five minutes. When they returned all of them went to Johnson's house where Johnson handed Barnes a capsule with white powder in it. Barnes was given $5.00 in change.
Johnson testified that he got the heroin for Barnes because Barnes told him he was sick and needed a fix. Johnson further testified that he got a stranger to buy the heroin for him.
At the trial Johnson entered a plea of not guilty. On appeal he relies on the defense of entrapment. In reviewing the record we do not find any exception to the court's oral charge by Johnson; we do not find a written requested charge on entrapment. There was no motion to exclude the evidence. There was no motion for new trial. Johnson contends that the trial court erred in refusing the general affirmative charge.
Entrapment occurs when State officers or persons under their control, incite, induce, lure, or instigate a person into committing a criminal offense, which that person would not have otherwise committed, and had no intention of committing. And when the general affirmative charge is requested based upon the defense of entrapment, the charge must be supported by uncontradicted evidence of unimpeachable weight and credibility, e. g., by the undisputed testimony of the State's own witnesses. Lindsay v. State, 41 Ala.App. 85, 125 So. 2d 716 (1960). From the record we find no support for the general affirmative charge, hence it was not error to refuse to give it. There was contradiction in the evidence, and the defense of entrapment was a jury question. Demmon v. State, 46 Ala.App. 652, 248 So. 2d 147 (1971). There is no error in the record.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | November 21, 1973 |
33531c51-a9a8-4515-9fe9-325b217f6f4c | Buckles v. State | 280 So. 2d 823 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 823 (1973)
In re James BUCKLES
v.
STATE of Alabama.
Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
SC 283.
Supreme Court of Alabama.
July 12, 1973.
William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State, petitioner.
J. D. Quinlivan, Jr., Mobile, for respondent.
BLOODWORTH, Justice.
This cause came to this court on petition for writ of certiorari. The writ was granted. This is the second time this cause has been before this court. (For the *824 former opinion this court rendered, see Buckles v. State, 291 Ala. 352, 280 So. 2d 814 [1972].)
Upon original deliverance in the present cause, a majority of the justices concluded that the judgment of the Court of Criminal Appeals should be reversed and remanded.
On application for rehearing and upon further consideration, a majority of the justices have now concluded that the application for rehearing should be granted, the opinion and judgment of this court heretofore rendered on June 7, 1973 should be set aside, this opinion should be substituted therefor and the judgment of the Court of Criminal Appeals should be affirmed, all for the reasons hereinafter set forth. It results, of course, that the opinion rendered for the court on the former submission, Buckles v. State, 291 Ala. 352, 280 So. 2d 814 [1972], is overruled.
The clear effect of the oral charge in this case is to place upon defendant the burden of explaining his possession of recently stolen goodsthus of proving his innocence. The burden of proof is on the State to prove defendant's guilt.
As pointed out in the exhaustive opinion on former submission, Buckles v. State, 291 Ala. 352, 280 So. 2d 814 [1972], the older cases of our court, as well as those of the Court of Appeals, have indicated defendant had such burden. Clearly, however, modern authority is to the contrary.
Almost identical charges were condemned by the Court of Criminal Appeals in Haynes v. State, 45 Ala.App. 31, 222 So. 2d 183 (1969), and in Reed v. State, 47 Ala.App. 617, 259 So. 2d 304 (1972). We think these decisions are correct.
A charge to effect that the unexplained possession of recently stolen property is a circumstance from which the jury may infer that the defendant is guilty of stealing it, was recently upheld by the Court of Criminal Appeals in Chadwick v. State, 47 Ala.App. 529, 258 So. 2d 62 (1972).
Judge Cates, in concurring with Judge Tyson's opinion for the Court of Criminal Appeals (in that court's original opinion in this cause, 50 Ala.App. 548, 280 So.2d 810), suggests a form for such a charge. It does not directly place a burden on defendant, which we consider to be the vice in the charge in the instant case.
Moreover, the United States Supreme Court in the recent case of Barnes v. United States, ___ U.S. ___, 93 S. Ct. 2357, 37 L. Ed. 2d 380 [1973], upheld a charge quite similar to that suggested by Judge Cates, viz:
The Supreme Court held, inter alia:
Application for rehearing granted.
Original opinion and judgment set aside.
Affirmed.
HEFLIN, C. J., and COLEMAN and FAULKNER, JJ., concur.
JONES, J., concurs specially.
MADDOX, J., dissents.
*825 MERRILL, HARWOOD and McCALL, JJ., concur.
JONES, Justice (concurring specially).
On original submission of the present case, S.C. 283, I concurred specially on procedural grounds to the effect that there should be an end to litigation, being of the conviction that we should not tolerate procedure which would permit a case to become a judicial football. In so concurring, however, I also expressed the view that I would have joined the dissent filed on deliverance of the original opinion had I been a member of this Court at that time. I am now convinced that the views expressed in my specially concurring opinion create a highly undesirable situation. While I voted with the majority to reverse and remand the case to the Court of Criminal Appeals with a mandate to affirm the conviction below, both bench and barincluding the Court of Criminal Appealsby simple numerical count could determine that such result was in conflict with the expressed views of the majority of the members of the Supreme Court on the merits involved.
I am also convinced after further consideration that the Court of Criminal Appeals was in no wise acting in defiance, but rather its second opinion was a good faith effort to comply with the mandate of this Court.
For an excellent discussion of a trial court's oral charge which was held not violative of Fifth Amendment rights in a possession of stolen property case, see Barnes v. United States, ___ U.S. ___, 93 S. Ct. 2357, 37 L. Ed. 2d 380 [1973].
Accordingly, I vote to grant the application for rehearing and concur with the opinion filed by Justice Bloodworth and affirm the Court of Criminal Appeals.
MADDOX, Justice (dissenting).
This is the second time this case has been here. James Buckles was indicted for burglary and buying, receiving or concealing stolen jewelry in Mobile County. He was found guilty of the charge of buying, receiving or concealing stolen property and was sentenced to six years in the penitentiary. He appealed to the Court of Criminal Appeals. His case was reversed and remanded. Buckles v. State, 50 Ala.App. 548, 280 So. 2d 810 [1972]. The State filed a petition for certiorari in this Court. This Court granted the writ and reversed and remanded the judgment of the Court of Criminal Appeals. Ex Parte State (In re: Buckles v. State), 291 Ala. 352, 280 So. 2d 814 [1972]. After remandment, the Court of Criminal Appeals did not affirm the judgment of the trial court, but again reversed and remanded the judgment of the trial court. The State again petitioned for certiorari to this Court to review the latest judgment of the Court of Criminal Appeals. This Court reversed and remanded the judgment of the Court of Criminal Appeals, but on application for rehearing, this Court granted the application for rehearing, withdrew the original opinion and affirmed the latest judgment of the Court of Criminal Appeals and overruled the prior opinion of this Court rendered on September 7, 1972.
I must respectfully dissent.
The controversy centers around a portion of the oral charge of the trial court which reads as follows:
I can appreciate the fact that Justices and Judges are in disagreement on the prejudicial effect of a jury charge on the inference arising from the unexplained possession of recently stolen property, but I think a majority of this Court would agree that the Court of Criminal Appeals must follow the mandates of this Court *826 and that it has failed to do so in this case. By overruling the decision of this Court rendered on September 7, 1972, I believe that the majority implicitly admits that the Court of Criminal Appeals failed to follow this Court's original mandate. The decisions of this Court govern the holdings and decisions of the Court of Criminal Appeals (Section 10, Act No. 987, Acts of Alabama, 1969, p. 1746, carried as Title 13, Section 111 (10), Code of Alabama, 1940, Recomp. 1958), and the failure of that court to follow the prior decision by this Court is sufficient ground to reverse the judgment of that court, irrespective of the fact that the decision of this Court on original deliverance was not unanimous. If mandates of this Court are not followed, there can be neither finality in a particular case, nor stability in the rule of law announced. In each instance the finality of a mandate or the stability of the rule of law announced would depend upon a transient majority on this Court. I respect the right of my brothers to disagree with me on a point of law, but when a judgment has become final and no higher authority has set the judgment aside, I would hope that this Court would require obedience to its judgment until it is set aside or is overturned.
Since I think that the Court of Criminal Appeals has failed to follow the mandate of this Court, I believe we should reverse and remand the cause.
I also dissent from the judgment which overrules this Court's decision of September 7, 1972 in this same case.
The majority concedes that the Supreme Court of the United States, in Barnes v. United States, ___ U.S. ___, 93 S. Ct. 2357, 37 L. Ed. 2d 380 [1973] has approved a charge which reads in part, as follows:
Except for the fact that in Barnes, supra, the trial judge used the words, "if not satisfactorily explained" and here the trial judge used the words, "places on him the burden of explaining," the charges are almost identical. Apparently the majority thinks the use by the trial court of the word "burden" makes the charge here prejudicial. I believe the majority attaches entirely too much significance to this one word, especially in view of the entire oral charge of the Court, which is set out in the opinions which have heretofore been rendered by this Court and the Court of Criminal Appeals. In fact, the Supreme Court of the United States, in Barnes, supra, noted:
Since the Supreme Court has stated that the practical effect of giving an instruction on the inference arising from the unexplained possession of recently stolen property is to shift the burden of going forward with evidence to the defendant, I think we are dealing with semantics if we say there is a material difference in the practical effect of the charge given in this case and the one which the majority adopts as an appropriate charge.
The majority says that this Court's older cases and those of the Court of Appeals are contrary to "modern authority." The Supreme Court of the United States, in approving the charge given in the Barnes case, stated in a footnote:
*827 It seems to me that in Barnes the Supreme Court of the United States approved the giving of the inference charge, at least in part, because of its age and wide acceptance. In any event, Barnes is the latest authority of the highest court of the land and I believe it is authority which can be cited to uphold the original decision of this Court in this case, which the majority today overrules.
The Court majority approves the form of a charge set out by Judge Cates in his special concurring opinion in this case [Buckles v. State, 50 Ala.App. 548, 280 So. 2d 810 (1972)]. I suggest that the charge set out in the Barnes case is more comprehensive and having been approved by the Supreme Court of the United States, I believe trial courts would be wise to follow substantially that charge, in appropriate cases. That charge reads substantially as follows:
MERRILL, HARWOOD and McCALL, JJ., concur. | July 12, 1973 |
55db44da-eef6-4812-9e89-61dc7329a258 | Matthews v. Matthews | 288 So. 2d 110 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 110 (1973)
James W. MATTHEWS
v.
Mary MATTHEWS and Lois Matthews, a minor.
SC 86.
Supreme Court of Alabama.
September 27, 1973.
Rehearing Denied January 24, 1974.
Gray, Seay & Langford, Tuskegee, for appellant.
Russell, Raymon & Russell, Tuskegee, for appellees.
*111 COLEMAN, Justice.
Plaintiff appeals from a decree granting him relief in a suit to establish in his favor a resulting trust in real property. Respondents have cross assigned errors.
The bill of complaint was filed February 20, 1970. In paragraphs numbered in the bill as follows, complainant makes averments to the following effect:
1. He is sui juris and a resident of Macon County; that respondent Mary Matthews is sui juris and a resident of Dale County; that respondent Lois Matthews is sixteen years old, is the daughter of respondent Mary Matthews and Herman Matthews, deceased, and is in the care and custody of her mother with whom Lois resides.
2. The property involved is Lot 27 of a subdivision in Macon County.
3. On April 4, 1950, the lot was vacant and unimproved. On that date complainant entered into a written contract with a construction company and the owner of the lot whereby the company agreed to construct a dwelling house on the lot and complainant agreed to pay $8,300.00 therefor. Complainant paid $350.00 earnest money and agreed to pay the balance of the purchase price.
4. For convenience of the parties to the contract, title to the lot was transferred to complainant's nephew, Herman Matthews, then living, on November 15, 1950, at which time construction of the dwelling house had been completed. Herman Matthews has never claimed the lot to be his nor asserted any right or interest therein. Complainant has occupied the house continuously since said purchase, has maintained the house in a state of repair and has treated the same as his own. Complainant paid the $350.00 earnest money and has paid each and every installment of the balance of the purchase price and continues to pay the same as they mature.
5. On June 9, 1968, Herman Matthews died intestate leaving as his sole heir the said minor child, respondent Lois Matthews, and his widow, respondent Mary Matthews. "No administration has been had upon the estate of said decedent, and he died seized and possessed of the said real property."
6. Complainant offers to do equity.
Complainant prays that upon a final hearing the court will:
1. Ascertain and establish a resulting trust in favor of complainant in and to said lot.
2. Divest all title to said lot out of respondents and vest title in complainant.
3. Grant to complainant such other and general relief to which he is entitled and which the court may deem proper.
Guardian ad litem was appointed for the minor respondent.
Respondents filed demurrers which the court overruled.
Respondents filed an answer. They admit the averments of paragraphs 1, 2, and 5 of the bill of complaint and deny the averments of paragraphs 3 and 4.
3. Complainant has occupied the premises in suit from November 15, 1950, as the tenant of Herman A. Matthews, until June 9, 1968, and, since said date, as the tenant of respondents; that as rent, complainant has paid the payments due on the mortgage indebtedness from Herman A. Matthews to Alabama Exchange Bank; and that said mortgage is for the principal sum of $8,300.00, is dated February 9, 1951, and is recorded in the "Probate Office of Macon County, Alabama."
4. Said lot was conveyed to Herman A. Matthews by warranty deed dated November 15, 1950, and recorded February 20, 1951. Complainant knew that the lot was owned by Herman A. Matthews. Complainant, since 1951, has assessed the property for taxes in the name of Herman A. Matthews and after his death in 1968 in the name of "`Herman A. Matthews' estate'." *112 "That complainant admits in his Bill of Complaint that he knew on November 15, 1950, that title to said property was taken in the name of Herman A. Matthews. However, over 19 years passed before he filed his Bill of Complaint in this cause. Therefore, complainant is barred from bringing this action by the statute of limitations of ten years for the recovery of real estate. The complainant, further, waited until more than twenty months after the death of Herman A. Matthews to bring this proceeding, allowing Respondents to lose the testimony of Herman A. Matthews, deceased. Respondents further allege that complainant is now barred by laches from maintaining this proceeding."
It appears that the Herman Matthews referred to in the bill and the Herman A. Matthews referred to in the answer are one and the same person.
After hearing testimony ore tenus, the court rendered final decree which, as here pertinent, is to the following effect.
The court finds that complainant entered into a contract with Southern Construction Company on April 4, 1950, to purchase the lot together with house to be constructed thereon for $8,300.00. Subsequently, complainant represented to the Alabama Exchange Bank that complainant was the father of Herman A. Matthews, a member of the United States Armed Forces at the time and entitled to a "VA insured loan"; that the bank, acting through its president, understood that the house and lot were being purchased as a home for the father of Herman A. Matthews, when in fact, the bank had been misled and the property was being purchased for the use of Herman A. Matthews' uncle, the complainant. Therefore, title to said property was taken in the name of Herman A. Matthews and he executed a "V. A. Insured Mortgage" to the bank for $8,300.00 dated February 9, 1951, and he and complainant executed the note secured by said mortgage. "Therefore, the Court is of the opinion that the Complainant, through his own misrepresentation obtained the use of a four per cent (4%) Veterans Administration Loan when, in fact, he was not entitled to such loan and at the time, would have had to pay at least six per cent (6%) interest on any money that he may have borrowed to purchase a home with. For these reasons, the Court if (sic) of the opinion that the Complainant does not come into this Court with clean hands."
The court further states that the court "is satisfied from the evidence" that the mortgage to the bank has been paid; however, the testimony is in conflict as to whether Herman A. Matthews sent money to complainant which was to be applied upon the mortgage payments and whether the complainant was making the payments as rent.
The court further found that at this time the legal title is in respondents and stated: "In view of the facts and the equities of this cause, the Court is of the opinion that title to said real estate should be vested in the Complainant, if the Complainant will do equity in this cause by paying to the Respondents the benefits he received on the lower interest rates on said mortgage by virtue of his obtaining through deception the benefits of the Veterans Administration loan to which veteran, Herman A. Matthews, deceased, was entitled."
The court decreed to the following effect:
1. That complainant comes into court with unclean hands due to the fact that he obtained the benefits of the V. A. loan granted to his nephew at four per cent per year, and due to complainant's inequitable conduct, he saved at least $2,408.00 in interest, being the difference in interest between a 4% loan and a 6% loan for twenty years.
2. That if complainant will pay to the register on or before July 15, 1972, the sum of $2,408.00, to be paid to respondents *113 to do equity to them, then complainant is entitled to have a resulting trust declared and title vested in him.
3. Upon payment of said sum into court, the register is ordered to report the same to the court, and the court will enter a final decree vesting title in complainant. If complainant has not paid said sum into court by July 15, 1972, the court will enter a final decree dismissing complainant's bill for his failure to do equity.
Complainant assigns as error the action of the court in ordering appellant to pay into court the sum of $2,408.00 to be paid to respondents.
Among the reasons relied on by complainant in support of this assertion of error is the rule that affirmative relief can be granted to a respondent only on a cross bill, and the rule that that relief granted to a party in equity must be within the scope of the issues as framed by the pleadings.
In Sturdivant v. Sturdivant, 276 Ala. 390, 162 So. 2d 484, this court reviewed a decree in a suit for divorce. The complainant wife prayed for divorce and that the court award to her as permanent alimony the one half interest in a house and lot which the respondent husband claimed he was entitled to have her convey to him under an agreement the parties had made. The respondent filed a cross bill in which he prayed that complainant be required to deliver a deed to him for his interest in the property. The trial court granted a divorce to the complainant but dismissed the cross bill. Finally, however, the trial court awarded the property to complainant, but subject to a lien for $3,300.00, testified to by respondent as money spent by him in building the house. He did not pray for a lien on the house and lot.
This court, in Sturdivant, reversed and held that the award to respondent of the lien on the house and lot was error. This court said:
In the instant case, respondents did not file a cross bill. Respondents did not pray for the award of any judgment against complainant. According to the authority of the cases cited above the award of a judgment against complainant and in favor of respondents was not supported by a cross bill and was not within the scope of the pleadings as framed. Accordingly, the award of the judgment against complainant is due to be reversed.
In reply to complainant's contention, respondents say that they filed no cross bill because they did not seek affirmative relief; that it was respondents' position that there was no resulting trust, or that relief should be denied complainant because of laches or the statute of limitations; and that, under their answer, respondents could get complete relief, to wit, the denial of any relief to complainant. Respondents say also that under the evidence the court could declare a resulting trust in favor of complainant for less than all of the complete fee simple estate.
Respondents cite Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194, as authority for the proposition that a party who is able to obtain under *114 his answer all the relief to which he is entitled, cannot maintain a cross bill. Hinds does support respondents proposition. Hinds, however, was decided prior to the amendment of Equity Rule 26; effective December 17, 1954. See Kendall v. Cornellison, 264 Ala. 16, 84 So. 2d 494, where this court said:
In Hinds, complainant filed a statutory bill to quiet title to 87 acres of land. Respondent A. M. Hinds, Jr. answered, denied that complainant was in peaceable possession, avowed title in himself to one half interest in the land under a certain described deed, and prayed that the court would not only dismiss complainant's bill but would also grant relief to "`this Cross-Complainant by decreeing . . .'" that he is owner of legal title to said one half interest in the described land. This court, under the rule which controlled prior to December 17, 1954, held that demurrer was correctly sustained to the cross bill of A. M. Hinds, Jr., because, in the statutory proceeding, he could get all the relief he was entitled to under his answer. This court said:
The instant suit is not a statutory proceeding. As respondents say, the only relief which they sought was dismissal of complainant's bill and denial of any relief to him. The relief granted to respondents, however, goes beyond denial of relief to complainant. The court did not deny relief to complainant, but granted the relief sought on condition that complainant pay to respondents an amount of money equal to the difference between interest at 4% and 6% on the amount of the mortgage debt for the period covered by the mortgage. We incline to the view and hold that the relief given to respondents by the condition imposed is not within the issues as framed by the pleadings in the instant case.
Respondents cross assign as error the action of the court in granting relief to complainant. Respondents argue that, for three reasons, the court erred in granting *115 complainant relief by ordering that title should vest in him on his performance of the condition stated. The first reason argued is that complainant comes into court with unclean hands in that he fraudulently represented to the bank that the nephew was his son and in that he sought to obtain the benefits to which a veteran is entitled under the statutes of the United States when complainant was not entitled to those benefits according to those statutes. The second and third reasons argued are that complainant's claim to a resulting trust is barred by the ten-year statute of limitations against actions for recovery of lands, and that complainant is also barred by laches.
Consideration of respondents' first contention that complainant is not entitled to relief because of unclean hands is hereinafter set out. In view of the result reached as to that contention, consideration of respondents' second and third contentions is pretermitted.
Complainant contends that cross assignment 3 is insufficient because it is too general. That cross assignment recites:
In considering the defect of generality charged against an assignment of error this court said:
See: Murphy v. Pickle, 264 Ala. 362, 87 So. 2d 844; Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So. 2d 814; Pruett v. State ex rel. Colbert County, 283 Ala. 33, 214 So. 2d 310; Auto-Owners Insurance Company v. Stokes, 284 Ala. 537, 226 So. 2d 320.
The instant decree grants relief to complainant in one particular only; i. e., vests title in him; and the decree grants nothing more to complainant. If granting this relief is error, the decree is erroneous in the whole. Under the authorities cited, cross assignment 3 is sufficient to invite review.
Complainant cites Purvis v. Ennis, 258 Ala. 174, 61 So. 2d 451, where this court held too general and insufficient an assignment that "`The Court erred in denying Appellant relief on her cross-bill.'" This court held that the trial court did not err in several particulars, to wit: in denying the widow exemption of $2,000.00 in lieu of homestead; in refusing to allow her to recover moneys she had paid in discharging cost of husband's last illness, his burial, payment of costs of improvements on the land, insurance premiums, and principal of mortgage debt, and as to other items. The relief sought embraced more than one item. Error in refusing relief as to one item would not constitute error in denying relief as to another item. The decree was not a *116 unit. The assignment was not sufficient within the rule above referred to.
The question is presented whether complainant is entitled to the benefit of a resulting trust arising out of a transaction wherein complainant violated the express terms of a statute of the United States.
Complainant is seeking the aid of equity to obtain the enforcement, or specific performance, not of an express but of an implied agreement by which title is to be taken out of the heir and widow of complainant's deceased nephew and vested in complainant. The evidence shows that all arrangements for buying the land and borrowing the money were made by complainant. Herman Matthews was in the military service and overseas at the time he signed the mortgage. Title was taken in the name of the nephew. The property has been assessed for taxation in the name of the nephew every year since the purchase. The assessment has been made by complainant. With respect to the purchase and mortgage, complainant testified:
*117 With reference to the federal statute here involved, the Supreme Court of Georgia has said:
The conclusion seems inescapable that complainant proceeded under and now seeks the benefits of a transaction which violates the statutes under which he sought to obtain benefits. To obtain the benefits, complainant seeks to enforce a resulting trust to accomplish an illegal purpose. The Court of Common Pleas of Cuyahoga County, Ohio, has said:
In Glover, Admr. v. Walker, 107 Ala. 540, 18 So. 251, complainant sought to enforce a vendor's lien for purchase money of land which complainant's intestate had conveyed to respondent by conveyance made to defraud complainant's creditors. The creditors were not party to the suit. In denying relief, this court said:
"It is well settled, that conveyances, or gifts, made to hinder, delay, or defraud creditors, are valid and operative between the parties when fully consummated, and that neither party can rescind or defeat them. In Williams v. Higgins, 69 Ala. 523, which was a real action in the nature of ejectment, the plaintiff exhibited, as the basis of his recovery, the deed from the defendant, which was fair on its face. The deed was made, as appeared by the evidence, to hinder, delay and defraud the creditors of the grantor. The defendant, to avoid his own conveyance, set up his fraud, his illegal and immoral purposes in the execution of the conveyance. The *118 court held, that he could not become the actor and set up such a defense, to release himself from the toils of his own vicious invention. As was there said, `No court has as yet given such assistance. Truth and fair dealing are rules of universal obligation. If men in consummation of frauds, employ instruments, binding and conclusive in their legal operation and effect, it is sound reason, good policy, sheer justice, to leave them where they have placed themselves, bound as they have bound themselves, without assistance from the courts to unloose them, when it becomes their interest to be unloosed, encouraging them and others to commit similar frauds.' . . . Here, an equitable trust is sought to be raised, and is by the contention of the appellant, declared to arise out of a transaction confessedly actually fraudulent. A vendor's lien, such as is sought to be here enforced, does not spring from, or depend on the contract or agreement of the vendor and vendee. Unless excluded by their own agreement, the law raises a vendor's lien on the principle, that one man, in good conscience, ought not to get and keep the estate of another, without paying for it. The vendee stands in the relation of a trustee for the vendor,holding the legal estate, charged with a trust for the payment of the purchase money. Shorter v. Frazier, 64 Ala. 74. But, the rule is of universal recognition that a court of equity will never imply or enforce a trust, springing out of a transaction, in which the party seeking to enforce it, has been guilty of fraud and immoral conduct. Brantley v. West, 27 Ala. 551.
"In King v. King, 61 Ala. 482, this court said, `The maxim, in pari delicto melior est conditio possidentis, applies in courts of equity, as well as in courts of law; and either court, leaves a debtor, guilty of fraud on his creditors, to the consequences of that fraud.'
"In May v. May, 33 Ala. 205, the court held, that while a court of equity will not allow a grantee in an absolute conveyance, to hold property discharged of a trust which by his consent was attached to a conveyance and which he agreed to fulfill, the transaction being fair and lawful on the part of the grantor, yet it will not aid him in carrying out and effecting an illegal arrangement, by which he made absolute conveyance of his property for the purpose of defrauding his creditors, upon the private verbal agreement of the grantee to reconvey the property, or allow it to be redeemed. The court said: `When parties enter into such arrangements, a court of equity does not interfere between them, but leaves them where they have placed themselves.'" (107 Ala. at 545, 546, 547, 18 So. at 253)
See to same effect: Elyton Land Co. v. Birmingham Warehouse & Elevator Co., 92 Ala. 407, 416, 9 So. 129; Davis v. Montgomery Furnace & Chemical Co., 101 Ala. 127, 129, 8 So. 496; Alabama National Bank v. Halsey, 109 Ala. 196, 19 So. 522; Smith v. Alabama Fruit Growing & Winery Assn, 123 Ala. 538, 26 So. 232; Minge v. Clark, 190 Ala. 388, 395, 67 So. 510.
Complainant does not appear to deny that he seeks to enforce an implied agreement which is in violation of the statute, but complainant says that the unclean hands maxim is relevant only to rights between parties to the action; not between one party and a third party not party to the suit. It is true that as to some instances of alleged private fraud against one not party to the suit, this court has declined to apply the doctrine of unclean hands against a party seeking relief. Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So. 2d 73; Vinson v. Vinson, 262 Ala. 388, *119 79 So. 2d 31; Daniels v. Haggins, 286 Ala. 409, 240 So. 2d 660. On the other hand this court has consistently applied the doctrine in suits involving conveyances to defraud creditors, where the creditor was not a party to the suit and the suit was brought by the grantor to vacate the transfer he had fraudulently made to the respondent.
In Baird v. Howison, 154 Ala. 359, 45 So. 668, this court affirmed a decree wherein the trial court had denied relief to a grantor suing his grantee seeking to set aside a conveyance in fraud of creditors who were not parties to the suit. The following statement perhaps explains the refusal of equity to aid a party when he is in pari delicto with the respondent and the conveyance is in contravention of a statute and public policy, to wit:
In Rust v. Gillespie, 90 Okl. 59, 216 P. 480, plaintiffs sought to cancel deeds and recover title to land under a claim derived from an ancestor who had been a party to a transaction in 1893 whereby a homestead in the Cherokee Strip had been conveyed by warranty deed to a grantee, under an agreement whereby the grantee was to hold title in trust for his father-in-law who had paid the entire consideration for the deed. The father-in-law already owned 160 acres of land. The homestead laws denied to a party who already owned 160 acres of land the right to file upon a homestead, and the agreement was made for the purpose of defrauding the government by enabling the father-in-law to procure a homestead in Cherokee Strip. The court held that the claim of plaintiffs grew out of a fraudulent agreement violative of public policy and denied relief. The court said:
The courts of three states have dealt with transactions where one not a veteran sought veterans benefits.
In Perkins v. Hilton, 329 Mass. 291, 107 N.E.2d 822, 33 A.L.R.2d 1281, the trustee of a bankrupt veteran sued the veteran's mother to obtain realty the veteran had conveyed to the mother at a time when she knew he was insolvent. Title to the property had been taken in the veteran's name under a V. A. insured loan with an oral agreement that he was to hold the property in trust for the mother. She paid all expenses in connection with the loan, payment on the mortgage, etc. The Supreme Judicial Court of Massachusetts held the oral trust void, saying inter alia:
In Glosser v. Powers, supra, plaintiff sought specific performance of an agreement whereby a veteran, the defendant, agreed to convey property to plaintiff, subject to a "security deed." Plaintiff had furnished down payment and paid expenses of making a loan, as per the agreement, but defendant refused to make conveyance and asserted that the agreement was an attempt on part of plaintiff to obtain benefits accorded veterans to which plaintiff was not entitled and to defraud the United *121 States contrary to law and public policy. The court said:
The Supreme Court of New York, Appellate Division, held invalid an agreement whereby a veteran was to obtain a V. A. mortgage and purchase home in his name, and his parents were to pay all carrying charges and the property would be theirs. The court said:
In the instant case, complainant admittedly seeks to obtain title by a resulting trust arising out of a transaction based on an alleged agreement which violates the statute and contravenes public policy. Equity will not aid him under the authorities cited, and the decree awarding him relief is due to be and is reversed.
I concur with the opinion in this case. If on remandment the trial court feels that the facts justify a balancing of equities, the cases of Towner v. Berg, 5 A.D.2d 481, 172 N.Y.S.2d 258 (1958), and Hainey v. Narigon, 247 Cal. App. 2d 528, 55 Cal. Rptr. 638 (1966), may provide an approach to follow.
JONES, J., concurs. | September 27, 1973 |
d0a8f458-69aa-4ba8-963f-a880505718af | Evans v. Patterson | 112 So. 2d 194 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 194 (1959)
M. A. EVANS
v.
Gladys PATTERSON.
6 Div. 285.
Supreme Court of Alabama.
April 9, 1959.
Rehearing Denied May 28, 1959.
*196 Guin, Guin & Cleere, Russellville, for appellant.
Tweedy & Beech, Jasper and Posey & Posey, Haleyville, for appellee.
STAKELY, Justice.
This case arises out of an automobile collision which occurred November 4, 1956, at the intersection of Highway No. 25 (sometimes called the Double Springs-Lynne Road) and Highway No. 195 (now known as Alabama No. 5). Highway now known as No. 5 runs from Haleyville to Jasper in a generally north and south direction. Highway No. 25 runs generally east and west at said intersection. Highway No. 25 was an older paved highway, not under construction at the time of the collision. Highway No. 195 was a new highway and M. A. Evans (appellant) was the highway contractor who had a written contract with the State of Alabama Highway Department to pave Highway No. 195 over a nine mile stretch which included said intersection.
Gladys Patterson (appellee) brought this suit against M. A. Evans (appellant), for personal injuries suffered by her while riding as a passenger in one of the automobiles involved in the collision. The other automobile was driven by a man named Flanagan, who had no connection with appellant. Neither did the driver of the automobile occupied by Gladys Patterson have any connection with the appellant.
Tendencies of the evidence showed that the intersection where the accident occurred was a dangerous and unsafe place and a place attended with risk. The evidence tends to show that the two automobiles came upon each other while making from 35 to 45 miles per hour. Neither traveller saw the other until they were right in each other and so close that they did not have time to put on their brakes or make any skid marks prior to colliding. Tendencies of the evidence showed that there were no signs on the highway warning of the intersection. These were two well travelled highways, which crossed each other. They met on a rise at a point where the vision of the driver was obscured by a wooded area and neither could see the other until within 50 or 60 feet of the other. A picture introduced in evidence indicates that one could not see any road coming into the main highway from the left, which would be Double Springs. One cannot even tell that there is a road there. There were no stop signs or warning signs on the approach to the intersection. Tendencies of the evidence showed that coming from the Double Springs side there was an upgrade to this intersection and the traveller was right on it before he could realize that they were coming to another road. Tendencies of the evidence showed that there were no warning signs at the time of the accident on either the Double Springs Road or the Haleyville Road.
Tendencies of the evidence showed that the injuries sustained by the plaintiff were severe and serious. In addition to injury to her brain, her chest was crushed. She had five ribs fractured on the right side and she suffered much pain. The ribs were jagged and caused her to have pleurisy. Her skull was fractured and her nervous system seriously affected.
Over the objection of the defendant the plaintiff introduced in evidence plaintiff's Exhibit I, which was the contract between the defendant and the State Highway Department. This contract referred to and adopted the plans and specifications of the nine mile paving project which was the subject of the contract. The following provisions are contained in the contract.
Counsel for the plaintiff stated that he was including for introduction in evidence the "Fly Leaf" of July 1, 1950, which contained Section 107.10 subsection a, subsection b and subsection c. That he was also introducing Section 107.14 and Section 107.16 and he offered each one of these sections separately. The defendant objected to each of the several sections on the grounds that "it is immaterial, incompetent and irrelevant and not binding between these parties; that it is a part of a contract not enforceable by this plaintiff; that it is things done between other parties; that it has no relevancy upon any one in this case; that it has nothing to do with any alleged negligence or duty or proximate cause and that insofar as the provisions of the book are concerned they would be part of the contract, not part of the law of negligence, but simply a matter of agreement between the state and the contractor and not enforceable by this plaintiff." The court overruled the objections. This ruling of the court will be referred to in our later discussion of assignment of error No. 68.
The undisputed evidence of the defendant, as shown by Mr. Davis, a resident engineer of the State Highway Department, was that there was no formal acceptance of performance of the contract until November 14, 1956, when a letter to that effect was written to the contractor. The letter was introduced in evidence. The witness Davis testified in substance that he made periodic checks on the job and that the contractor Evans had not reported completion of the job but merely requested an inspection to see what remained for him to accomplish. At that time, according to the testimony of the witness Davis, the contractor was pretty far along with the job except for the filling of washouts and the reseeding of places that it was necessary for him to patch. According to his testimony, the paving had been completed and there was no grading to be done but filling in of washes on the shoulders and reseeding was necessary to be done.
Tendencies of the evidence further showed that the public was freely using the highway at the time of the collision and that the highway had been opened by direction of the State Highway Department.
I. The appellant takes the position that this action is a tort action and that that being true, the defendant owes no other duty than the common law duty to use due care to keep the highway safe for travel until the highway is turned over *198 to the state on completion of the contract. In other words, it is seriously argued that the contract cannot be looked to to determine the duty which the contractor owes to this plaintiff. It is obvious that she was not a party to the contract but only one of the travelling public which was using the highway at the time of the accident. Upon a careful consideration, it seems to us that while the defendant did owe to the plaintiff only a common law duty, the contract can be considered in determining what would be due care under the circumstances. In Morgan Hill Paving Co. v. Fonville, 222 Ala. 120, 130 So. 807, 814, this court said:
In other words, this court held that the defendant could rely on a contract as a predicate for showing a duty to the plaintiff. The state in the case at bar through the contract undertook to get this contractor to protect the travelling public from any hazard or dangerous or unsafe place. It required the contractor to put up signs, warning the travelling public of any danger and it made the contractor liable in the event he failed to do so and this liability continued until performance of the contract had been finally accepted by the state. Morgan Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Blashfield's Cyclopedia of Law & Practice, Vol. 5A, § 3259, pp. 295-296.
It should be mentioned at this point that a highway contractor in building a road under a contract with the state does not enjoy the same privilege as the state does of immunity from suits for personal injuries sustained by travellers on the highway undergoing construction, maintenance or repairs. Morgan Hill Paving Co. v. Fonville, supra.
The jury had the right to infer from the evidence that the intersection of the two highways in this case was a dangerous intersection and constituted a hazard to the travelling public if not marked and no warning given of it. Callaway v. Adams, 252 Ala. 136, 40 So. 2d 73. It is well to remember what was said in Wasser v. Northampton County, 249 Pa. 25, 94 A. 444, L.R.A.1915F, 973, cited in Morgan Hill Paving Co. v. Fonville, supra [218 Ala. 566, 119 So. 620], as follows: "It is true, of course, that the ordinary needs of travel change with changed circumstances and road officers must keep in mind the new uses of travel in the construction and maintenance of highways." Travellers on highways now rely upon warning signals to slow down, warning signals of an intersection, curve and any other dangerous places, and we think that in the present case due care, among other things, required the contractor to place such warning notices of this dangerous intersection and for the failure of which he would be liable.
The appellant argues that the Alabama cases which we have cited above have in effect been overruled by the more recent case of Williams v. Wise, 255 Ala. 322, 51 So. 2d 1.
In that case there was a suit against a subcontractor and the question of the contract between the original contractor and the subcontractor, was one of the things involved. It seems to us that this case does hold that a contractor is liable to a member of the public, where the law imposes on the contractor the duty to keep the subject of the work in a safe condition, and this duty continues throughout his employment. It is true, as pointed out in the foregoing case, that the liability of a contractor is in tort and not in contract and is the common law duty which the contractor *199 owes in a situation of this kind. But we do not consider that this case is authority for the position that the contract cannot be considered in determining what is due care under the circumstances.
In the case of Wunderlich v. Franklin, 5 Cir., 100 F.2d 164, the court held that there was no liability because there was no proof of wilful or wanton misconduct, but conceded that the provisions in the contract made by the contractor for the construction of a road from the Town of Opp to the Town of Andalusia, requiring lights at barricades, conferred no greater right upon the public or imposed no greater duty upon the contractor to the public than at common law. It was conceded that the contractors were chargeable with simple negligence in not providing lights for the barrier, as required by the contract. In support of this view, the court cited the Alabama case of Carter v. Franklin, 234 Ala. 116, 173 So. 861, 863, and in that case the court called attention to the fact that the suit was in tort, cited with approval, among other authorities, the case of Morgan-Hill Paving Co. v. Fonville, 224 Ala. 383, 140 So. 575, and said: "Dealing with this case, the maintenance of such a barrier without warning lights or other adequate signals would support a finding of at least simple negligence and a consequent right of recovery by one not himself guilty of contributory negligence." In the case at bar the failure to provide warning signs at a dangerous intersection would support a finding of simple negligence, just as the maintenance of a barrier without warning lights or other adequate signals would support a finding of at least simple negligence.
We conclude that the various rulings of the court with reference to the contract between the state and the contractor were correct and the plaintiff was entitled to have the benefit of a duty of due care as indicated by the contract, which, as we have pointed out, includes the placing of warning signals at the intersection here involved.
II. It is further argued by the appellant that while performance of the contract was not formerly accepted by the State until the 14th of November, which was after the time of the accident, nevertheless the contract had been substantially completed and performance of the contract had been factually accepted by the state. It is true that the highway had been opened to the public and the public was freely using the highway, but this does not mean that the responsibility for dangerous places in the highway had been shifted from the contractor to the state. The evidence shows that performance of the contract had not been accepted by the state and that there was work still to be done, looking to the completion of the contract, before the state would accept the work done under the contract. Under these circumstances, we do not consider that the court was in error in ruling that responsibility for the condition of the highway had not been shifted from the contractor to the state.
III. Various exceptions were taken to the oral charge of the court. One of the exceptions refers to the following language of the court:
It is insisted by the appellant that these words indicate that the trial court was charging the jury that the duty owed by the contractor to the plaintiff was created by contract. We do not agree. When the foregoing is read in context and the whole charge is considered (Florence Coca Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65 So. 2d 169), it clearly appears that the court charged the jury that the basis of the claim of the plaintiff against the defendant was negligence in that the defendant breached some duty that he owed the plaintiff and *200 as a proximate result of that negligence, the plaintiff was injured. Of course the plaintiff has no right to sue on the contract. That is an agreement between the State of Alabama and the contractor. The various items in the contract to which the court is referring may be looked to to determine whether there was any duty on the part of the defendant to the plaintiff and as we have undertaken to show, there was a duty, until performance of the contract was accepted, on the contractor to put warning signs at the dangerous intersection involved in this case.
IV. There are numerous assignments of error in this case. This is largely due to the fact that the same question is raised in many different ways. What we have said covers most of the assignments of error. There are some assignments of error, however, which appear to relate to other questions than what we have discussed. For example, Assignment No. 96 is based on the refusal of the court to give the defendant's requested Charge 14, which is as follows:
It is sufficient to say that this charge was substantially and fairly covered by the oral charge. § 273, Title 7, Code of 1940; City of Birmingham v. Bowen, 254 Ala. 41, 47 So. 2d 174.
V. Assignment of error No. 13 is based on the ruling of the court sustaining the plaintiff's demurrer to Plea 13, which is as follows:
It is argued that under § 47, Title 36, Code of 1940, only the highway department is authorized to classify, designate and mark the highways of the State and to provide a uniform system of same. There is no doubt that this is true, where the contract to construct the highway has been completed and performance accepted by the state. But in this case, as we have undertaken to show, performance of the contract had not been accepted and the contract between the state and the contractor expressly required the contractor to put up warning signs of any hazard or defects in the highway. As we have shown, this certainly covered the intersection of the highway involved in this case.
VI. Assignment of error No. 136 is based on the failure of the court to require a remittitur on the motion for new trial. It is insisted that $25,000 was grossly excessive in this case and indicated bias or prejudice on the part of the jury. We do not agree. The testimony in the case shows that the plaintiff was seriously and severely injured and suffered great pain. We do not regard the verdict as excessive and the verdict of the jury was strengthened by the action of the court in overruling the motion for new trial without requiring a remittitur as a condition for such action. Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288.
VII. Assignment of error No. 68 relates to the overruling of a motion by the defendant to exclude from the jury Section 107.14 of the book designated as Plaintiff's Exhibit No. 2. This section reads as follows:
When Section 107.14 was introduced in evidence it was objected to on grounds which have been heretofore set out and which in no manner refer to prejudice arising from the reference to the surety. Circuit Court Rule 33, Code 1940 Tit. 7 Appendix.
Later on in the trial of the case after the evidence had been closed, the defendant made a motion to exclude from the jury § 107.14 of the book designated as Plaintiff's Exhibit No. 2. This is the section of the book which is hereinabove set out. The grounds of the motion to exclude § 107.14 are that the section is prejudicial, incompetent, irrelevant or immaterial.
There is language in this section which mentions the surety of the contractor, but it will be observed that the motion to exclude § 107.14 was made after this section had been received in evidence and is to exclude the entire section, and not the particular language which mentions the surety of the contractor. Conceding for the sake of argument that the reference to the surety was inadmissible, the court will not be put in error for overruling the objections to the section as a whole. Starr Jobbing House v. May Hosiery Mills, 207 Ala. 620, 93 So. 572. See Reese v. Mackentepe, 224 Ala. 372, 140 So. 550.
VIII. Assignment of error No. 69. This assignment relates to the overruling of a motion by the defendant to exclude from the jury the surety bond, which is a portion of Plaintiff's Exhibit I. When Exhibit I was offered in evidence by the plaintiff, the defendant objected on the grounds that, "It is immaterial, irrelevant, incompetent, and there is no light to be shed on any negligence or other issue in the case; that the traveling public cannot enforce a highway contractor's construction or maintenance contract, that a duty in a negligence action cannot be made out by contract." There was no objection that Exhibit I contained a surety bond nor was there any motion for a mistrial on the ground that the surety bond was in the contract. The grounds of the motion to exclude the surety bond which was made later in the trial after the contract including the surety bond had been introduced in evidence, were that the contract is not enforceable by the plaintiff in this case, that the surety has not been joined as a party and on the further ground that it is incompetent, irrelevant and immaterial. We do not think the grounds assigned were well taken. No error is shown by the ruling of the court in refusing to exclude the surety bond from the evidence. Circuit Court Rule 33; Starr Jobbing House v. May Hosiery Mills, supra; Security Bank & Trust Co. of Memphis, Tenn. v. Laney, 214 Ala. 561, 108 So. 367.
*202 IX. Assignment of error No. 70. This assignment relates to the argument of counsel for appellee as follows: "I'll say he was getting a lot of money, $248,000.00."
It is sufficient to say that if the argument was beyond the bounds of legal propriety, the record does not sufficiently disclose what was said in its context for us to say that the argument was improper.
X. Assignment of error No. 39. This assignment is based on the action of the court in overruling the objection of appellant to a question asked the witness Bob Collins: "I will ask you whether or not, based on your investigation, and what you saw down there if you have an opinion as to how fast the two vehicles were traveling at the time of the accident?" The witness was a Highway Patrolman. He testified that his experience was limited to eight or nine months at the time of this accident and that this was the first serious accident he had ever investigated, that he estimated the speed of the automobile as between 35 and 45 miles per hour.
We can see no reason for prejudicial error in the ruling of the court. The undisputed evidence on the part of the plaintiff is that they were travelling around 40 to 45 miles per hour and the defendant also brought out this by testimony of other witnesses. So if there is any error, it is harmless error, because both the plaintiff and the defendant proved that the speed of the automobiles involved in this case ranged from 35 to 45 miles per hour. There is no contention made by the defendant that the speed was other than that.
XI. Assignment of error No. 41 relates to the overruling of objection by appellant to a question by counsel for appellee to the witness Charles Canterbury as follows: "They asked you on crossexamination about a request you made to M. A. Smith. I want you to tell the jury there now the entire conversation. What you told Mr. Smith, and then what Mr. Smith told you."
In the case of Wesson v. State of Alabama, 238 Ala. 399, 191 So. 249, 250, the witness Lathum testified that after Wesson left, he, Lathum the witness, saw Earnest Brown and gave him the keys to the automobile. This is all that the state proved. On cross-examination the defendant tried to prove what Brown told this witness at the time Brown handed the keys to the witness and the court sustained the objection. This court held: "The State having brought out a part of the transaction, the defendant was entitled to bring before the jury the whole transaction and show that was said at that particular time and place."
XII. Assignment of error No. 135 is based on the action of the court in overruling the motion for a new trial. Some of the grounds of the motion are based on the alleged prejudice arising from the rulings of the court which are made the basis of assignments of error 68, 69 and 70. As we have pointed out the court was not in error in these rulings. There was no error in overruling the motion for a new trial.
We have carefully considered all assignments of error and find no error to reverse.
Affirmed.
LAWSON, SIMPSON, MERRILL and COLEMAN, JJ., concur. | April 9, 1959 |
d8632196-f849-49ee-b8e4-a39d10160b0f | Standifer v. Pate | 282 So. 2d 261 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 261 (1973)
Frank Jason STANDIFER, a minor who sues by his father and next friend, James B. Standifer
v.
Dorotha PATE.
James B. STANDIFER
v.
Dorotha PATE.
SC 183, 184.
Supreme Court of Alabama.
August 30, 1973.
*262 Charles Cleveland, Birmingham, Huel Love and Betty Love, Talladega, for appellants.
Gaines & Herefore, Talladega, J. Carter McFerrin, Birmingham, for appellee.
BLOODWORTH, Justice.
James B. Standifer, father of Frank Jason Standifer, a minor, filed a pro ami suit on behalf of the minor and a separate suit for himself in the Circuit Court of Talladega County, alleging in substance that the defendant permitted the minor plaintiff, then one and one-half years old, to injure himself while in the care and control of the defendant. (Since the complaints are substantially the same, we shall hereafter refer to the complaints in the singular only.)
The original complaint was in two counts. Defendant filed a demurrer thereto which was sustained. Plaintiff amended by adding three additional countsCounts Three, Four, and Five. Defendant filed additional grounds of demurrer, and this demurrer was also sustained. Plaintiff then took a voluntary nonsuit and gave notice of appeal, assigning as error the trial court's ruling in sustaining defendant's demurrer to the complaint and to each count thereof.
It is defendant's initial contention that this court cannot consider the ruling sustaining demurrers to the original counts of the complaint, citing as authority the cases of Kent v. The Coleman Co., et al., 285 Ala. 288, 231 So. 2d 321 (1970) and Whatley v. Alabama Drydock and Ship Building Co., 279 Ala. 403, 186 So. 2d 117 (1966). With this contention, we agree and thus limit our review to the questions as to whether Counts Three, Four and Five are subject to the demurrers interposed. After a consideration of these counts, we must conclude that the trial court erred, as will hereinafter appear, and reverse and remand this cause.
Count Three raises the question as to whether a volunteer babysitter on her own *263 premises owes a duty of due care in supervising a child under her care and control. Count Three alleges in relevant part that "defendant undertook to supervise, watch, and care for the plaintiff" at the defendant's residence, that "defendant negligently failed to use due care in supervising, watching, and caring for the plaintiff, and negligently permitted the plaintiff to pull a skillet of hot grease off a counter onto himself."
The allegations contained in Count Three are virtually identical with those at issue in Nelson v. Gatlin, 288 Ala. 151, 258 So. 2d 730 (1972). In that case, a nine year old cub scout was injured while at the home of the cub scout leader. The child stepped on a tire in the yard at play and sustained a broken ankle. The plaintiff's complaint therein alleged that defendant had undertaken to supervise the activities of the plaintiff, that defendant negligently failed to supervise the activities of the plaintiff, and that plaintiff was injured as a result of the rowdy, boisterous and unsupervised play negligently permitted by defendant. This court, in a per curiam five-to-three decision, held that the boy was a mere licensee and therefore the duty owed him was not to wilfully or wantonly injure him or not to negligently injure him after discovering his peril. The counts were held to fail to state causes of action.
While the allegations in the instant case are almost the same as those found in our recent case of Nelson v. Gatlin, we think that case must be overruled insofar as it may be inconsistent with the holding in the case at bar.
As noted in the dissent of Mr. Justice Harwood in the Nelson case, the gravamen of the count is negligent supervision. The place at which such supervision occurred should not affect the duty owed the plaintiff. The location of the alleged breach of duty is unimportant, whether it occurred on the plaintiff's premises or elsewhere.
We find such reasoning to be persuasive. As stated in Nelson v. Gatlin, the recognized duty owed by an occupier of land in Alabama to a licensee is not to wilfully or wantonly injure him, or not to negligently injure him after discovering him in peril. Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So. 2d 469 (1969) and cases cited therein.
While this is a correct statement of the rule, it must be noted that this states only the duty arising out of and created by the land occupier-licensee relationship. It in no way abrogates or insulates a land occupier from duties which arise from other relationships between himself and another on his premises. The occurrence of the breach of duty on one's own premises is a mere fortuity.
Count Three in the instant case alleges a breach of duty arising out of a relationship of volunteer babysitter and child. In the recent case of Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So. 2d 844 (1971), involving gratuitous safety inspection of business premises, this court held that a volunteer is under a duty, once he has acted or assumed the duty, to execute the tasks undertaken with reasonable care.
The defendant argues that Beasley must be read in the context of the business relationship there involved. But, this court has previously held that, where one undertakes a duty requiring skill and care, reasonable care must be exercised in the performance thereof even though there may be no consideration given therefor. H. H. Parker & Brother v. Hodgson, 172 Ala. 632, 55 So. 818 (1911).
In Parker, supra, the action was for damages resulting from the falling of a wall on plaintiff's property claimed to have been caused by the negligent manner in which the defendant, an adjoining proprietor, made an excavation of his own premises. This court held the trial court erred in sustaining a demurrer to the fourth count of the complaint.
*264 In the opinion, this court, speaking through the elder Mr. Justice Simpson, held:
The Restatement of Torts 2d, § 324(a) is in accord with this position:
Furthermore, other courts which have considered the question have found a duty of due care on the part of a "volunteer" babysitter.
In Zalak v. Carroll, 15 N.Y.2d 753, 257 N.Y.S.2d 177, 205 N.E.2d 313 (1965), the New York Court of Appeals, in upholding a judgment against a volunteer babysitter for injuries suffered by an infant in her care, stated:
In Whitney v. Southern Farm Bureau Casualty Insurance Co., 225 So. 2d 30 (La. App., 1969), a case involving care of a child by a volunteer babysitter, a Louisiana Court of Appeal states the law as follows:
*265 Likewise, in Barbarisi v. Caruso, 47 N. J.Super. 125, 135 A.2d 539 (1957), a New Jersey court reversed a trial court judgment of involuntary dismissal in a suit somewhat similar to the one at bar. Barbarisi involved an action by an infant who was left with his grandmother under an arrangement with his mother by which the grandmother would babysit the child without pay while the mother was shopping. The child was permitted to recover for injuries he sustained when he thrust his arm into an unattended washing machine in operation. The court stated:
The same principles govern here. Count Three alleges that defendant undertook to supervise, watch and care for plaintiff. By undertaking to perform these services, defendant binds himself to the exercise of due care in their execution, irrespective of compensation. Plaintiff's Count Three, therefore, alleges facts which give rise to a duty, breach of that duty, and injuries as a proximate consequence. The fact that the breach occurred on defendant's premises is of no moment because the duty arises independent of the landowner-licensee relationship. The demurrer to Count Three should have been overruled.
Count Four of the plaintiff's complaint alleges that "the defendant entered into an oral agreement with plaintiff's mother whereby in consideration for plaintiff's mother performing certain hairdressing services for defendant's mother, the defendant agreed that while plaintiff's mother was performing said services the defendant would supervise, watch, and care for the plaintiff" and that "while the plaintiff was under the supervision, care, and control of the defendant pursuant to said agreement, the defendant negligently permitted the plaintiff to come in contact with a skillet of hot grease which was spilled onto and over the plaintiff."
Count Four, in substance, simply restates the allegations of Count Three with the additional allegation of consideration paid by plaintiff for defendant's services. Presumably, the purpose of such allegation is to raise plaintiff's status from that of a mere licensee to that of an invitee. As noted above, defendant's duty to exercise due care arises, not out of the parties' relationship of land occupier and licensee or invitee, but rather, out of the duty to exercise due care assumed by a babysitter toward his infant charge. According to the allegations in Count Four, defendant undertook to supervise plaintiff, and, as in Count Three, defendant thereby incurred a duty of due care toward plaintiff. Count Four, therefore, properly alleges facts which give rise to a duty, its breach and proximately caused injuries. A cause of action is stated.
Since Count Four sets forth a cause of action irrespective of the allegation of consideration, we need not decide the sufficiency of the consideration alleged. The demurrer to Count Four should have been overruled.
Count Five alleges in relevant part that while plaintiff "was an invited guest of the *266 defendant at defendant's home, * * * defendant negligently placed a skillet of hot grease in a position where it may reasonably have been anticipated that plaintiff's said minor child may come in contact with it and the plaintiff's said minor child did come in contact with said skillet of hot grease causing it to be spilled over and upon himself, and as a direct and proximate consequence of the defendant's said negligence, the plaintiff's said minor child was injured * * *."
This count fails to allege sufficient facts to give rise to a duty on defendant's part. An invited social guest is a mere licensee. The defendant owes a duty merely to refrain from wilfully or wantonly injuring a licensee or from negligently injuring him once he is discovered in peril. Autry v. Roebuck Park Baptist Church, supra. There is no allegation of wilful or wanton acts or that plaintiff was in peril. Therefore, Count Five does not allege a valid cause of action based on breach of any duty arising out of defendant's status as owner of the premises.
Furthermore, Count Five fails to allege that defendant undertook or assumed the obligation to watch, care for and supervise plaintiff. Therefore, unlike Count Three, there is no duty arising from the parties' relationship of babysitter and infant charge. The demurrer to Count Five was properly sustained.
There remains the further contention by defendant that, even assuming a duty of due care, the facts as alleged do not constitute negligence as a matter of law. With this we disagree. Negligence is the want of such care as an ordinarily or reasonably prudent and careful man would exercise under similar circumstances. Alabama City, G. & A. Ry. Co. v. Bullard, 157 Ala. 618, 47 So. 578 (1908); Sheffield Co. v. Morton, 161 Ala. 153, 49 So. 772 (1909). Whether or not the defendant's conduct was negligent under the particular circumstances and conditions here involved is best decided by a jury after a full trial.
The judgment of the trial court sustaining the demurrers to Counts Three and Four is accordingly reversed and remanded.
Reversed and remanded.
HEFLIN, C. J., and HARWOOD, MADDOX, FAULKNER and JONES, JJ., concur.
MERRILL, COLEMAN and McCALL, JJ., dissent.
MERRILL, Justice (dissenting):
I respectfully dissent because I would not overrule Nelson v. Gatlin, 288 Ala. 151, 258 So. 2d 730.
COLEMAN and McCALL, JJ., concur. | August 30, 1973 |
06df783b-53bf-4113-9ec7-ff703ab4a54e | Ringer v. First National Bank of Stevenson | 281 So. 2d 261 | N/A | Alabama | Alabama Supreme Court | 281 So. 2d 261 (1973)
Albert F. RINGER and Helen Ruth Ringer
v.
The FIRST NATIONAL BANK OF STEVENSON, Alabama, a National Banking Association.
SC 260.
Supreme Court of Alabama.
August 2, 1973.
*262 Potts & Young, R. Powell Duska, Florence, Thomas & Proctor, Scottsboro, for appellants.
Dawson, McGinty & Livingston, Scottsboro, for appellee.
HEFLIN, Chief Justice.
This is an appeal from an order granting a nonsuit entered by the Circuit Court of Jackson County. The plaintiffs-appellants Albert and Helen Ringer (Ringers) bring the appeal because of adverse rulings of the trial court in sustaining demurrers of the defendant-appellee First National Bank of Stevenson (Bank) to each count of the complaint as last amended. The complaint, which contained three counts, is predicated on theories of misrepresentation, fraud, and deceit made actionable by Title 7, Sections 107-112, Code of Alabama, 1940, as amended (Recompiled 1958).
Common allegations appear in all counts of the complaint, which in abbreviated form follow: On May 9, 1966, the Ringers borrowed $20,000 from the Bank with which to purchase a bulldozer and related equipment (all of which may hereinafter be called "equipment") and to secure such loan the Ringers gave the Bank a combination promissory note and chattel mortgage having a due date of November 9, 1966, plus a real estate mortgage on three acres of land upon which the Ringers' home was located. Prior to and following the date of the transaction the Ringers did business with the Bank and, being persons with little experience in banking or financial matters, relied on the Bank for financial advice. A close personal and confidential relationship with the president of the Bank existed. In September of 1966 the Ringers requested the Bank to accept T. K. Stewart as the purchaser of the equipment and, without making an investigation of the credit reputation of Mr. Stewart, the Bank arbitrarily refused to allow him to assume the Ringers' obligations to the Bank, but instead, fraudulently represented to the Ringers that Millard Bowen and Thomas D. Bowen would be better and more dependable buyers for the equipment than would T. K. Stewart and that such representation was false. Relying on this misrepresentation of this material fact by the Bank, the Ringers sold the equipment to the Bowens and allowed the Bowens to assume the Ringers' obligations to the Bank under an assumption agreement by which the Bowens agreed to pay to the Bank not less than $500.00 each month. In accepting the assumption agreement the Bank required that the three acres of the Ringers remain as security for the loan. On numerous occasions after said assumption by the Bowens and before January, 1969, the Ringers were informed by the president of the Bank that the Bowens were making the agreed payments, when, in fact, the Bowens were not making such payments. Such representation of this material fact was fraudulently made to the Ringers. The chattel mortgage on the equipment and the real estate mortgage on the three acres were both foreclosed by the Bank, all to the damage of the Ringers.
Count 2 is essentially the same as Count 1 except that both compensatory and punitive damages are claimed since the misrepresentations were allegedly made "grossly, maliciously, oppressively and with an intent to deceive."
Count 3 differs from Count 1 by alleging a fiduciary relationship between the Bank and the Ringers; the concealment of the fact that no credit-check had been made on the Bowens by the Bank; and that prior to *263 the sale of the equipment neither of the Bowens had borrowed more than $400.00 at any one time from the Bank.
Each count alleges two acts deemed fraudulent: (1) A misrepresentation by the Bank that the Bowens would be better and more dependable buyers of the equipment than would T. K. Stewart; (2) a misrepresentation of the fact that the Bowens were making regular payments on the assumed note, when they were not.
When fraud is pleaded, either at law or equity, the facts out of which it is supposed to arise must be stated. Crommelin v. Capitol Broadcasting Co., 280 Ala. 472, 195 So. 2d 524 (1967). This court has stated that allegations of fraud in a pleading to be sufficient must positively set forth facts constituting the fraud, so that the court can clearly see that fraud has intervened. Pihakis v. Cottrell, 286 Ala. 579, 243 So. 2d 685 (1971); Lacey v. Edmunds Motor Co., 269 Ala. 398, 113 So. 2d 507 (1959).
The first issue that needs to be resolved is whether the Ringers properly alleged a representation as to the Bowens' financial condition and, if so, whether it is an actionable misrepresentation or merely an expression of opinion which is not actionable. The pertinent allegations follow:
The Bank asserts the representation that the Bowens would be better and more dependable buyers does not constitute actionable fraud since the representation was not that the Bowens were financially sound, but merely that they were better and more dependable. The Bank ignores the fact that "better and more dependable" describes the Bowens as "buyers," and that the allegation also states, "would be better and more dependable buyers ... than would said T. K. Stewart," a buyer alleged by the Ringers as having an excellent credit reputation. The Bank overlooks the allegation that the defendant arbitrarily refused to allow Stewart, a man with substantial assets, to assume the plaintiffs' obligations under the promissory note. The comparison in this instance doesn't detract from a representation of financial soundness but rather enhances it. In the context of the alleged situation, where the Ringers produced a buyer alleged to be credit-worthy, a representation that another is a "better and more dependable buyer" (thus a better person to assume the obligation to the Bank than a person with substantial assets and an excellent credit reputationT. K. Stewart) can be looked upon from a pleading viewpoint as sufficient for a jury submission on this issue of whether a representation *264 of financial status was made, provided of course, the proof supports the allegations.
Assuming that "better and more dependable buyer" refers to the Bowens' financial status, is it a representation such that, if false, it would give rise to an actionable fraud? The general rule is stated in 37 Am.Jur.2d, § 137, at 187:
See also Annotation: Misrepresentations as to financial condition or credit of third persons as actionable by one extending credit in reliance thereon. 32 A.L.R.2d 184.
Under Alabama law a misrepresentation of financial condition can be actionable. The controlling Alabama case is Einstein, Hirsch & Co. v. Marshall & Conley, 58 Ala. 153 (1877). In that case, the defendant-appellant firm of Einstein, Hirsch & Co. provided one Heller a letter which stated in part: "He is good for all he buys, and you may safely sell him a bill [bill meaning a bill of groceries]." Based on this representation, Marshall & Conley extended credit to Heller, who subsequently died leaving the bill unpaid and leaving no property with which to satisfy his debts. Although a judgment for Marshall & Conley was reversed on other grounds, the court found that a good cause of action was stated. Referring to the requisites of such a cause, the court stated:
As this court stated in Einstein, "[m]uch must depend on the circumstances of the particular case," but it seems clear that under the proper circumstances a third party can be held liable for misrepresenting another party's financial condition. But the rule is not without qualification. There is the limitation that the statement must be reasonably certain and definite and more than mere expressions of opinions or prophecy or statements to eventuate in the future. See 37 Am.Jur.2d, § 137, at 188-189; 37 C.J.S. Fraud § 48, at 301 and 48 A.L.R. 546-549.
The Bank here claims that "would be better and more dependable buyers" was a mere expression of opinion or prophecy. The following language from 51 A.L.R. 63 is quoted with approval in Shepherd v. *265 Kendrick, 236 Ala. 289, 181 So. 782 (1938):
In the case of Scholz Homes, Inc. v. Hooper, 287 Ala. 628, 254 So. 2d 328 (1971), this court held that under some conditions, a representation of an opinion or a prediction of a future event can be an actionable fraud, but such opinions or predictions are not actionable unless "there are circumstances tending to show an actual fraudulent intent at the time of the promise or representation" is made.
While inferences could be drawn from the allegations of each count that the Bank also relied on the opinion that the Bowens were dependable buyers (thus possibly indicating an absence of fraudulent intent), there are allegations in each count to satisfy the requirement that the expression of opinion was made with an actual fraudulent intent at the time the prediction of future financial dependability was made. Allegations follow the language of the involved statutes. Counts 1 and 3 allege that the misrepresentations were made wilfully to deceive and Count 2 contains the allegation of an intent to deceive, as well as that the misrepresentations were made grossly, maliciously, and oppressively.
In connection with the second allegation of fraud, the essential allegations are as follows:
In contending that the Bank president's conduct in making the misrepresentation *266 was not actionable, the Bank's primary argument is that the Ringers in the note waived notice pertaining to an extension of time concerning payments which the Bank might grant to the Bowens. The court considers that any such waiver would be immaterial under the facts alleged. Put simply, the Bank's contention is since it was not required to give any notice of any extension of time concerning payments that it granted to the Bowens, it could give misinformation with impunity. Such a contention is patently untenable.
Clearly, proof of the facts alleged by the Ringers regarding a misrepresentation by the Bank president that payments were being made when, in fact, they were not, would permit a recovery under the fraud and deceit statutes of this state.
The third major point argued to this court concerns the allegation of damages. It is well settled that damage is an essential element of an action for fraud and deceit. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970). In a recent case this court summarized the subject of damages in a fraud and deceit action:
"The rules in Alabama appear to be as follows:
Pihakis v. Cottrell, 286 Ala. 579, 243 So. 2d 685 (1971)
In each count the Ringers claim compensatory damages as a proximate result of the alleged fraud, and in Count 2 the Ringers claim punitive damages after alleging that the fraudulent misrepresentations were made "grossly, maliciously, oppressively, and with an intent to deceive ...." It appears that more than nominal damages are alleged. If the representations of the Bank had been true, the Ringers' position is that they would not have suffered the financial losses they allege. They contend there would have been no foreclosure or loss to them; but there can be little doubt that the Ringers were obligated to pay considerable more interest than they would have been if the delay of 29 months had not occurred during which time it is alleged the Bank was falsely misrepresenting to them that payments were being made by the Bowens.
Finally with respect to damages a demurrer was not the proper method of attacking the plaintiff's allegation of damages since the complaint states a cause of action. It is well settled that demurrer is not the proper method to test its sufficiency with respect to measures or elements of damage claimed, the remedy being by motion to strike, objection to evidence or request for instructions to the jury. Dalrymple v. Alabama Farm Bureau Mutual Ins. Co., 267 Ala. 416, 103 So. 2d 711 (1958); Lurie v. Kegan-Grace Co., 209 Ala. 339, 96 So. 344 (1923).
The Bank further argues "that the basic concept of a fraud involves violation of a legal or equitable duty," and the Ringers do not allege facts "which would support *267 a violation of a duty ...." It is fundamental that all persons are under a duty not to fraudulently misrepresent material facts to persons with whom they have business dealings. The Restatement of Torts, Section 525, states:
The counts allege business transactions, and one of the counts alleges a fiduciary relationship between the Bank and the Ringers. The contention that the Bank had no duty toward the Ringers is without merit.
Each count of the complaint endeavors to allege two separate torts on the part of the defendant: (1) A fraudulent misrepresentation of the financial condition of the Bowens; and (2) a fraudulent misrepresentation of the fact that payments were being made by the Bowens when, in fact, they were not. None of the grounds of the demurrer raises the issue of duplicity, therefore, this court sees no point in discussing that problem. However, it would be appropriate to comment that this technicality of common law pleading is eliminated by the new Alabama Rules of Civil Procedure.
This court finds the counts of the complaint are sufficient to withstand the attack of the grounds of the demurrer interposed and that the cause should be returned to the trial court for further proceedings.
Reversed and remanded.
MERRILL, HARWOOD, BLOODWORTH and MADDOX, JJ., concur. | August 2, 1973 |
2bcaac87-0d64-4af6-8f1c-c333f5d5f341 | Marcrum v. Embry | 282 So. 2d 49 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 49 (1973)
Jean E. MARCRUM
v.
Jim EMBRY, Jr., d/b/a Embry Oil Company.
SC 201.
Supreme Court of Alabama.
August 30, 1973.
Carl E. Chamblee, Birmingham, for appellant.
H. E. Holladay, Pell City, for appellee.
*50 McCALL, Justice.
The appellant filed his bill for a declaratory judgment in this case on the equity side of the court, praying to have declared null and void several written instruments that were contemporaneously executed by the appellant and the appellee, involving the lease of a gasoline filling station.
The parties, through their solicitors made and entered into, and filed in the cause, at the trial, a written stipulation upon which they submitted the case for a final decree. From this stipulation, and the record, it appears that on May 13, 1966, the appellant and the appellee, contemporaneously executed reciprocal leases covering a common lot or parcel of real property with the improvements thereon. The appellant who owned the real property executed the prime lease to the appellee, a distributor and dealer in gasoline and oil products. The initial term of the prime lease was for ten years with an option to extend the lease for an unstated number of additional years. The appellee lessee was granted the option of cancelling the lease at any time by giving the lessor sixty days notice. No such option to cancel was accorded the appellant lessor. The appellant lessor agreed to maintain the improvements on the real property. The filling station equipment thereon was to remain the property of the appellee lessee, he having the right or privilege of painting the buildings and improvements on the leased property in a color scheme in common with that of his service stations generally. The lessee was given the right to assign the lease or sublet the property.
In return for this lease agreement, the appellee paid an agreed rental of twenty dollars a month. These payments were stated to be sufficient consideration also for all options granted in the lease by the lessor to the lessee. As a further consideration for the lease of the premises as set out in a supplemental agreement of even date, and pursuant to it, the appellee promised to deliver and did deliver to the appellant two thousand dollars for the purpose of making improvements on the leased property, repayment of which, was to be amortized at the rate of two hundred dollars per year over a period of ten years, with repayment to be made through purchases of gasoline and oil products under an exclusive dealership between the parties, or, to be repaid on any default by the appellant as to the unamortized amount.
On the same day, the appellee leased the same property back to the appellant, under an instrument described as a Dealer Lease Agreement, and for the same initial term of ten years, and for an extended term of an unstated number of years after the initial terms, subject to being terminated at the end of the initial term, upon sixty days prior notice, at the option of the appellant. However, the appellant sublessee was without option to cancel the dealer lease prior to the expiration of the initial term of ten years. In return for the dealer lease, the appellant promised to pay the same amount of rent to the appellee as provided for in the prime lease. The appellant also agreed to maintain the buildings, structures, improvements and equipment in good condition and repair, and in addition, to pay all charges, licenses, permits and inspection fees, occupation and license taxes, and utility bills incurred in connection with the use and occupation of the premises. The appellant agreed therein not to assign or sublease the premises without the appellee's written consent, and to hold the appellee harmless against any and all claims or liability on account of personal injury or death arising out of the use or occupation of the leased premises, not caused by the appellee's own negligence. The dealer lease further provides that it is subject to all the terms and conditions of any lease under which the appellee, is entitled to possession of the premises, and if for any reason whatsoever the sublessor's tenancy is cancelled, terminated or surrendered then said dealer lease shall automatically terminate and end without further action by either party and without any liability on the part of the appellee sublessor.
*51 The same day that the parties executed the aforementioned leases, the appellant also executed a written assignment to the appellee of the monthly rentals to become due him under the prime lease. This assignment by the appellant was for the purpose of convenience, and it compensated the rentals under the prime lease against those under the dealer lease. The parties also note in their stipulation that the appellant has sublet the premises to third parties under the terms of the agreements and has collected and retained the rentals, and the appellee has sold gasoline and oil products to the appellant and his assigns.
The parties stipulated that these agreements or undertakings constituted their entire agreement, which hereafter will be referred to as the agreement. They complied with all of the terms and provisions of the agreement and operated thereunder from May 13, 1966, until April 15, 1972, when the appellant became dissatisfied and requested the appellee to remove his equipment and other property from the leased premises, which the appellee failed or refused to do. Failing in his purpose, the appellant instituted this suit in equity to have the agreement declared null and void for lack of mutuality, lack of consideration, and as being in illegal restraint of trade.
There was no testimony taken in the trial of the cause, orally or otherwise, and the case was submitted to the court for a final decree upon the abovementioned stipulation filed in the case. The court found that the agreement, under which the parties had operated for nearly six years, was valid and entered a final decree in favor of the appellee.
The appellant's primary argument for reversal is that since the agreement is terminable at appellee's will, it must be terminable at the appellant's will also, in order to give the agreement mutuality, without which the agreement would be unenforceable.
While the stipulation of the parties provides that the several instruments, executed by them represent their entire agreement, and, it is the law that where two or more instruments are executed contemporaneously by the same parties, in reference to the same subject matter, they generally are taken as one contract, and will be interpreted together, Evans v. Kilgore, 246 Ala. 647, 21 So. 2d 842 (1945), Ingalls Iron Works Co. v. Ingalls, 256 Ala. 124, 53 So. 2d 847; Montgomery Enterprises v. Empire Theater Co., 204 Ala. 566, 86 So. 880 (1920); Restatement Contracts, § 235(c); Corbin on Contracts, § 549, we nonetheless are still confronted with the question of whether a lease, which gives one of the parties thereto the option to cancel or terminate it on a specified notice, is so lacking in mutuality as to be unenforceable.
A contract, lacking in mutuality, is unenforceable, because there is an absence of consideration moving, from one party to the other, Hill v. Rice, 259 Ala. 587, 67 So. 2d 789 (1953), but when the promise of each party is legally sufficient consideration for the other's promise, there is no lack of mutuality, Lindner v. Mid-Continent Petroleum Corp., 221 Ark. 241, 252 S.W.2d 631.
The agreement here is a bilateral contract, since there are mutually dependent promises between the two parties to the agreement, a bilateral contract being one in which there are mutual promises between the parties to the contract, each party being both a promisor and a promisee.
As will be pointed out though, mutuality in a contract does not mean equal rights under the contract, or that each party is entitled to the same rights or covenants under the contract. So long as there is a valuable consideration moving from one side to the other, or there are binding promises on the part of each party to the other, there is adequate consideration for a valid contract.
*52 Generally speaking, it seems well settled that an option, given a lessee to terminate the lease after a specified time of notice, cannot, under any circumstances, have the effect of creating a tenancy at will, nor make the lease void as wanting in mutuality. Guffey v. Smith, 237 U.S. 101, 35 S. Ct. 526, 59 L. Ed. 856 (1914); Indian Refining Co. v. Roberts, Ind.App., 181 N.E. 283, 290; H. P. Hood & Sons v. Heins, 124 Vt. 331, 205 A.2d 561 (1964); Keck v. Brookfield, 2 Ariz.App. 424, 409 P.2d 583; David Roth's Sons, Inc. v. Wright & Taylor, Inc., 343 S.W.2d 389 (Ky.App., 1961); Long Investment Co. v. O'Donnel, 3 Wis. 2d 291, 88 N.W.2d 674 (1958); 1 Williston on Contracts (3rd Ed.) § 105A, p. 425, n. 10. Appellant's argument in this case would seem to effect this imperfect result.
The argument in Standard Oil Co. v. Veland, 224 N.W. 467 (Iowa S.Ct.1929), was that because the lease reserved to the lessee the right to terminate at will upon ten days notice, and because it failed to reserve the same privilege to the lessor, the contract lacked mutuality, and was unenforceable. In that case the court said:
It is quite true that where one party reserves an absolute right to cancel or terminate a contract at any time, mutuality is absent. 17 C.J.S. Contracts § 100(6), p. 807. But a lease for a definite term is not converted into a tenancy at will by the fact that an option to surrender it before the expiration of the term is conferred upon the lessee, particularly so where the option rests upon a valuable consideration. 51C C.J.S. Landlord § 157, p. 464. And more specifically it is said in 51C C. J.S. Landlord § Tenant 27, p. 67:
And again at § 91, p. 293 of the same volume:
An agreement is not invalid although it gives the lessor or the lessee alone the right to terminate the lease.
A somewhat similar contention as made here was well answered in the case of National Refining Co. v. Cox (K.C.Mo.App., 1933) 57 S.W.2d 778, 781, as follows:
In Lindner v. Mid-Continent Petroleum Corp., supra, the prime lessor, without an option to do so, attempted to cancel her lease of a filling station to the lessee oil *53 company. The lessee brought suit to recover possession of the lease-back filling station. In the prime lease, the lessee reserved the option to terminate at any time upon ten days notice to the lessor. In the lessee oil company's month to month sublease to the lessor's husband for the same rental, both parties retained the privilege to terminate upon ten days notice. The lessor had authorized the oil company to offset the rents to become due by each party against each other. The lessor attempted to cancel the prime lease to the oil company after the latter cancelled the sublease to the prime lessor's husband. The court held that the lessor's contention that the agreement lacked mutuality was without merit and said:
We think the holding in Howard v. Mercury Record Corporation, 5 Cir., 178 F.2d 449, relied on by the appellant, is inapposite, because there the court was dealing with an executory contract. The evidence showed a contract of indefinite duration and one lacking in mutuality of obligation. The court held that, because the contract was executory, it was revocable and that the complainant was barred from recovering any loss or damage sought to be predicated upon the contract to the extent it was executory, but the court permitted recovery of damages sustained from breaches of the agreement to the extent that the contract had become executed. To the same effect as Howard, supra, see Sherill v. Alabama Appliance Co., 240 Ala. 46, 197 So. 1.
In brief the appellant argues that an agreement which places all of the obligations on one party, with no obligations on the other, is so gross that it shocks the conscience, and courts of equity will interfere on the ground that such inadequacy of consideration amounts to conclusive evidence of fraud, and will cancel the contract. He states in effect that the greater and more numerous obligations are imposed on him under the lease, with the appellee obligated to pay nothing and to do absolutely nothing under the agreement, and this entitled him to terminate the lease.
It is difficult for us to understand why and how the appellant continued to comply with the agreement at all times from May 13, 1966 to April 15, 1972, as he states, but now finds it so faulty as to be unenforceable against him. First from a reading of the instruments constituting the entire agreement we do not consider it in anywise ambiguous, as the appellant argues; but, were this so, that construction which the parties have placed on the agreement and which they themselves have practiced in and about its performance, will ordinarily be accepted by the courts as a correct one. Conway v. Andrews, 286 Ala. 28, 236 So. 2d 687; Hill v. Davis, 272 Ala. 166, 130 So. 2d 39, and cases there cited.
*54 Further, referring to the entire agreement, it appears to be one for an initial term of stated duration, with valuable considerations passing between the parties, and with promises made by each party that are enforceable obligations between them. There is a binding duty of performance by the parties, in our opinion, even though the promises of the appellant are not exactly coextensive with those of the appellee. Lindner v. Mid-Continent Petroleum Corp., supra. The fact that the appellee reserved the option to cancel the prime lease upon giving sixty days notice, with a like option not given to the appellant, we have concluded, does not deprive the agreement of mutuality. It is noted that the prime lease expressly provides as follows: "9. The payments made and to be made hereunder by lessee to lessor shall be considered sufficient consideration for all options herein granted by lessor to lessee."
The rule is too well settled, even to admit of argument, that consideration in fact bargained for is not required to be adequate in the sense of equality in value. Corbin on Contracts, § 127. The mere inadequacy, alone, is never sufficient to vitiate a contract or conveyance otherwise valid, and the courts are not disposed to enter upon nice calculations to strike a balance on the one side or the other. Norrell v. Thompson, 252 Ala. 603, 42 So. 2d 461, 462. Absolute equality is not to be hoped for, and is seldom attained in men's dealings one with the other. Nor is consideration to be measured in terms of dollars and cents alone; convenience, avoidance of troublesome details and efforts are proper elements. Decker v. Decker, 253 Ala. 345, 44 So. 2d 435.
The offsetting of one party's rent against the other's as a matter of convenience did not detract from the fact that a valuable consideration passed between them for the execution of their respective leases which, though similar in some respects, were different in other respects.
Appellant would have us construe the leases against appellee merely because they were drafted by appellee and admittedly are favorable to him. However we do not think there is cause for such construction. Under Greenwood v. Bennett, 208 Ala. 680, 95 So. 159, the rule is that the lease is to be construed more strongly against the lessor only in cases of ambiguity and uncertainty. In cases where the language is unambiguous and certain, the lease is to be construed accordingly to the parties' intention as gathered from the whole instrument.
And in National Refining Co. v. Cox, supra, 57 S.W.2d at p. 782, it was stated:
We find here presented no such ambiguity in the instruments as to give a field of operation to this rule of construction.
In addition appellant argues that the agreement was nothing more than an attempt by the appellee to maintain an exclusive dealership with appellant on appellant's real estate for the appellee's products. Our answer to this is that the appellant must have considered the advantages and disadvantages of this arrangement when he entered into the agreement, because its provisions are clear and unambiguous. Evidently the exclusive dealership was then considered more advantageous by the appellant than now, and was what he wanted, because he admittedly complied with the agreement for nearly six years. But irrespective of that consideration, we *55 find nothing wrong with a business transaction which establishes an exclusive dealership between two parties where the parties deal at arm's length under an otherwise legal engagement. The factor of exclusive dealership may well have mutual advantages for both parties, and, again, it may be or become more advantageous to one of the parties than the other as time goes on. Even so, it is certainly not unlawful, nor in restraint of trade in an unlawful sense, for one man to agree to purchase all of his gasoline and oil products from another man. In Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 480, 73 So. 889, 891, this court said:
We have reviewed this case carefully, and after so doing we are of the opinion that the trial judge did not err in his findings and the final decree entered thereon. For the reasons stated in this opinion the final decree of the trial court is due to be affirmed.
Affirmed.
All Justices concur. | August 30, 1973 |
6bcddd54-f781-4892-861c-660ea51463a0 | Chancellor v. State | 282 So. 2d 242 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 242 (1973)
Randy CHANCELLOR
v.
STATE of Alabama.
S.C. 356.
Supreme Court of Alabama.
August 30, 1973.
Martin & Floyd, Gadsden, for appellant.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
FAULKNER, Justice.
A portion of the Book of Proverbs found in the Old Testament admonishes a young man to beware of the wiles of a woman. This case illustrates that Randy Chancellor should, perhaps, become familiar with those chapters and verses.
Randy Chancellor, a young, married man twenty years of age, was alone at his house in rural Cherokee County, Alabama, on September 13, 1971, at 11:00 o'clock A. M. Kathy Lynn Rankin of Anniston drove up in her automobile. Randy and Kathy visited with each other at Randy's house until the afternoon. The record does not show what they did during their visit. Upon Kathy's suggestion, she and Randy boarded her automobile and headed toward Summerville, Georgia. Kathy was driving. As they proceeded down the road, Mother Nature made a call on Randy. He had to relieve his bladder of accumulated fluid. Kathy stopped her automobile, and Randy got out of the car, stood in the ditch, and answered Nature's call. Not wanting to observe, Kathy drove on down the road, turned around, and came back to pick up Randy. Four officers of the law were parked in a car behind Kathy when she stopped to pick up Randy. Randy, with a paper bag in his hand, re-entered the car, and Kathy drove off at a high rate of speed. The law men pursued. Approximately one-half mile down the road, Randy threw a package from the car. This package was thrown out at Kathy's direction. Randy testified that he had no knowledge of the contents of the package. *243 (The officers testified that this was the same paper bag they saw in possession of Randy when he re-entered Kathy's car.) Subsequently, Kathy and Randy were stopped by the pursuing officers, who searched Kathy's car. Two officers left to seek the paper bag thrown from the car. They were unsuccessful. Other officers went on the same mission and returned with the paper bag. There were approximately nine ounces of marijuana confiscated by the officers, which was turned over to the State toxicologist.
Randy was indicted for possession of marijuana, a felony, tried on a plea of not guilty by a jury, who convicted him, and he was sentenced to three years in prison. He applied for probation which was denied. For her involvement in the alleged crime, Kathy pleaded guilty and received a sentence of twelve months in the county jail and was placed on probation for a period of two years.
Randy appealed his conviction to the Court of Criminal Appeals from an adverse ruling on a motion for new trial. On April 25, 1973, this case was transferred to this court. There are five grounds in the motion for new trial. We will only consider Ground Number 3 of the motion. The other grounds have no merit.
Ground Number 3 of the motion states that "[T]he Court erred in permitting the Sheriff of Cherokee County over the Defendant's objections to testify in this cause for that even though the rule had been invoked, and said Sheriff was not excused therefrom, he not only stayed in the courtroom and listened to the testimony, but acted as the Bailiff to the jury, taking them to lunch, and in general, looking after their needs." The record shows that after the sheriff testified, Randy made a motion for mistrial alleging these same grounds:
"MR. BLACK: All the sheriff has done is take them out on break.
"COURT: Overruled.
"MR. FLOYD: We except to the Court's ruling."
In Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965), the Supreme Court of the United States held that where officers, who are key witnesses, maintain close and continuous association between themselves and the jury, the defendant is deprived of the right to trial by an impartial jury which the Due Process Clause of the Fourteenth Amendment requires. And, as Justice Holmes stated in Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 969 (1915), in his dissenting opinion,
In Turner the court stated:
*244 In Turner the motion for mistrial was based on the ground that Simmons and Rispone "`were in actual charge of the jury; that they were physically present with the jurors in and out of the jury room, in automobiles and in eating places with the jury members, mingling with the jurors * * *.'"
In Miles v. State, 261 Ala. 670, 75 So. 2d 479 (1954) the sheriff was one of the officers active in the prosecution of defendant. He was in charge of the jury and took the jury to a cafe to eat during a noon recess. He was permitted to testify in the case as a prosecuting witness. This court held that this was reversible error. In Miles, as well as here, there was no testimony of any conversation taking place between the sheriff and members of the jury. Nevertheless, there is the possibility of influence exerted on the jury's verdict by the sheriff.
In Oliver v. State, 232 Ala. 5, 166 So. 615, this court said:
See also Owens v. Florida, 68 Fla. 154, 67 So. 39 (1914).
We are of the opinion that justice requires another trial free of any probability of injury by association of the sheriff with the jury.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL, and JONES, JJ., concur. | August 30, 1973 |
94ff5a36-902f-4c46-a06f-486ee0fb8b74 | Sanders v. Barron | 282 So. 2d 237 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 237 (1973)
R. R. SANDERS
v.
Martha P. BARRON.
S.C. 327.
Supreme Court of Alabama.
August 30, 1973.
W. H. Baldwin, Andalusia, for appellant.
J. M. Albritton, Andalusia, for appellee.
HARWOOD, Justice.
The complainant-appellee here filed a bill of complaint in the Circuit Court of Covington County, Alabama, in Equity, praying for a temporary restraining order to restrain the appellant from foreclosing a mortgage executed by appellee and her husband and praying that on final hearing of the cause that the court would ascertain the validity of the mortgage and determine the true amount due to the appellant under the mortgage.
*238 The mortgage which is the basis of this action is the last of four mortgages purported to have been signed by appellee and her husband. The four mortgages were received in evidence. The property mortgaged in all the mortgages was 85.3 acres of land in Covington County and the home thereon, which complainant had inherited from her family.
The first of such mortgages was in the amount of $12,000, which the appellee testified was to be used to renovate their home. The mortgage was dated March 30, 1965, and the mortgagee was the First Mortgage Company Inc. On the same day First Mortgage Company assigned the mortgage to Loyal American Life Insurance Company and this instrument stated that the interest was 6 ½ Appellee testified that she signed the mortgage at the insistence of her husband and that no more than $6,500 was expended for the improvement of their home.
On October 19, 1966, there was executed a mortgage in the amount of $2,700. The mortgagee was R. R. Sanders, the appellant in this cause, and the purported mortgagors were the complainant and her husband Fred Barron. Mrs. Barron, the complainant, testified that she did not join her husband in this mortgage and that her name was forged thereto.
An examination of the document shows that the signatures were acknowledged before Fred Barron, appellee's husband and cosigner of the mortgage. Mrs. Barron further testified that her husband abandoned her in February of 1970, and that she did not learn of the $2,700 mortgage until after the execution of the two subsequent mortgages hereinafter mentioned. Mrs. Barron stated that while attempting to locate her husband, she later talked with the respondent, Mr. Sanders by telephone and that during that conversation Mr. Sanders said that he had thought her name was forged and that was the reason that he loaned Fred more money because it was the only way he would be able to get his money out of "that first mortgage," i. e., the $2,700 mortgage.
Regarding the next mortgage, Mrs. Barron testified that her husband suggested that they sign a mortgage for about $15,000, therein consolidating all their outstanding debts. Mrs. Barron stated that upon arriving at the attorney's office to sign the mortgage she learned for the first time that the actual amount of this mortgage was $18,250. The mortgage was R. R. Sanders and the terms of the mortgage provided for payments in monthly installments of $196.12 for 180 installments. This instrument did not specify a rate of interest and was executed on January 13, 1970 by Fred Barron and Martha Barron. Mrs. Barron testified that she signed the mortgage because her husband told her that she would lose the farm if she did not sign it. No money changed hands at the execution of this mortgage. However, Mrs. Barron testified that she later learned that the attorney who prepared the mortgage received and paid out $14,928.64 and she was furnished a copy of the bills reflecting how the money was paid out. The balance of $10,440.21 due on the mortgage assigned to the Loyal American Life Insurance Company by the First Mortgage Company, was among the items paid by Mr. Murphy out of the $14,928.64 advanced by the appellant.
Ten days later, on January 23, 1970, Mrs. Barron signed a mortgage of $20,514.64. This mortgage dated January 13, 1970, also provided for 180 monthly installments at $196.12 each and, additionally, contained the notation, "Interest being amortized at 8%." This mortgage, too, was dated January 13, 1970, and was represented to Mrs. Barron to be a correction mortgage in place of the previous mortgage she had signed on January 13, 1970. No additional money was received by the mortgagors.
Mrs. Barron asserted that she signed these mortgages at her husband's insistence and that he was the dominant figure in *239 their household. Mrs. Barron further stated that she had never personally met R. R. Sanders before the trial; had had no business dealings with him; and did not know that her husband had had prior dealings with Mr. Sanders at the time she executed the mortgage.
Miss Sherrell Raley, the daughter of Mrs. Barron, testified that she had lived in the home of Fred and Martha Barron during this period and had observed the relationship between her mother and Fred Barron to which her mother had testified. Miss Raley stated that, in addition to being the dominant figure in the marriage relationship, Fred Barron told her mother that she would lose the farm if she did not sign the last two mortgages, and that if she did not sign them he would leave her.
Mr. Ray Murphy, the attorney who prepared the last two mortgages, testified that he received $14,928.64 from the respondent and that he disbursed the total amount. He testified that those were the only funds to come into his hands. Mr. Murphy stated that at the time he prepared the mortgage in the amount of $18,250 he prepared a cancellation of the $2,700 mortgage and based on that transaction he concluded that the debt of $2,700 was included in the $18,250 mortgage. After Mr. Murphy had paid out the entire $14,928.64 from a trust account which he had established, he learned that the check he had received from Mr. Sanders for that amount had a stop payment order on it. Mr. Murphy was informed that Mr. Sanders had proposed to transfer the mortgage to a bank for collateral but the bank would not take it without a disclosure statement and a right of rescission statement, and "would not take it with the payments of $196.12 for 180 installments showing the $18,250.00." The bank did not indicate why they would not accept those figures. Mr. Murphy stated that at this point either Mr. Sanders or Mr. Barron gave him the figures for the mortgage of $20,514.64. He further testified that no additional money changed hands, and that in his opinion the difference between the $18,250 mortgage indebtedness and the $20,514.64 indebtedness was the difference between 8% and 10% interest.
Mr. R. R. Sanders testified that he let Fred Barron have some money in October of 1966 but he did not recall the exact amount, but said that the figure would have included 8% interest. He stated that he did not have his records of that transaction. Next, Mr. Sanders stated that he remembered that sometime after that he gave Fred Barron some cash. He did not remember exactly when nor how much, but in his best judgment it was about $1,500. He did not have any records to substantiate this transaction either, stating that when all these debts were consolidated in the mortgage of January 13, 1970, he got rid of his previous records. Mr. Sanders stated that these debts were lumped together to arrive at the $18,250 figure. He added that Mr. Barron or possibly Mr. Murphy supplied the figures for the mortgages and that he did not perform any calculations. Mr. Sanders said that the interest was included in the figures for the $18,250 mortgage. He denied admitting to Mrs. Barron in a telephone conversation that he suspected that her name had been forged on the $2,700 instrument. Mr. Sanders said that to his best recollection Fred Barron had made four payments of $196.12, but he did not have his records regarding that.
After Fred Barron missed a number of payments, Mr. Sanders attempted to locate him. Mr. Sanders testified that while attempting to locate Fred Barron, he talked with Mrs. Barron and that during this conversation Mrs. Barron informed him that Fred had left her and it was his understanding that Mrs. Barron agreed to assume the payments for the monthly amounts. Mr. Sanders said she never made any of those payments and some few months later he started the foreclosure proceedings which were enjoined by this suit. Mrs. Barron denied she had ever agreed to make the monthly payments on *240 the mortgage, and in fact had no funds out of which such payments could have been made.
The trial court found that the mortgage in the amount of $2,700 was a forgery insofar as the appellee was concerned and formed no part in the consideration of the final mortgage, and that the actual monies received were in the amount of $14,928.64. The court ordered appellee to pay $14,928.64 plus an attorney's fee in the amount of $550.00 for respondent's attorney, the cost of the foreclosure sale, and the court costs. No credit was given to the complainant for the four payments of $196.12 each that Fred Barron had made. The court made no finding as to usury. From this decree the respondent perfected this appeal.
Appellant on appeal maintains that he should be allowed the entire amount of the debt or that the cause be reversed allowing him the contracted rate of 8% interest on the $14,928.64 until the date of the decree and 6% interest from that time forward. Next, appellant insists that the $2,700 debt is valid and should be allowed as a part of the mortgage indebtedness involved in this suit.
Speaking first to the matter of the $2,700 indebtedness, it would appear that the instrument evidencing that transaction is void. One interested in a conveyance may not take and certify the acknowledgment of one of the grantors. Swindall et al. v. Ford, 184 Ala. 137, 63 So. 651. As stated in Byrd v. Bailey, 169 Ala. 452, 53 So. 773, it was said in reference to an interested party taking an acknowledgment:
This rule, in addition to the testimony taken at trial indicating that the signature of Mrs. Barron was forged and the subsequent finding of the trial judge who heard the testimony, makes it clear that the $2,700 should not be included as a part of this mortgage indebtedness.
As to the $1,500.00, the appellant offered no documentary proof at trial as to the creation and existence of an indebtedness in that amount, and his testimony as to his loan is not too clear.
Even so, in brief counsel for appellant contends:
Since appellant apparently makes no contention that the court erred in not including the $1,500 debt as part of the debt the Chancellor found to be owed by the appellee, this leaves for consideration only the matter of whether the Chancellor erred in not including the $2,700 in the amount he found due under the mortgage.
We have already reached the conclusion that the $2,700 mortgage was void as to the appellee. The Chancellor was therefore correct in his determination as to the true amount owed by the appellee.
*241 Further, it would appear that appellant having testified that both the $1,500 and the $2,700 loans with interest were included in the $18,250 mortgage, we can find no basis for permitting these amounts to be used a second time to arrive at the figure of $5,586 which was reflected in the Direct Loan Disclosure Statement executed by the appellee. Such allowance would merely compound the error of including these two items in fixing the amounts actually loaned by appellant to the appellee.
The Chancellor found, and we think correctly so under the evidence, that the true consideration for the mortgage of January 13, 1970, was the $14,928.64 furnished to Mr. Murphy, the attorney, for the purpose of paying previous debts of the Barrons, and consolidating the amount of the debts into the mortgage of January 13, 1970.
The repayment of this amount by 180 monthly installments of $196.12 would, according to our calculations, of necessity include usurious interest.
Upon the execution of the mortgage of January 13, 1970, in the amount of $18,250.00, the mortgage of $2,700.00 which Mrs. Barron testified her signature was forged, was canceled. The only reasonable inference that can be drawn from the cancellation of the $2,700.00 is that the mortgage debt was included as a part of the debt secured by the $18,250.00 mortgage.
In fact the appellant testified that the $2,700.00 and also the $1,500.00 which he claimed to have loaned Fred Barron were included in the $18,250.00 mortgage of January 13, 1970.
Certainly the usurious taint could not be removed from the $18,250.00 mortgage of January 13, 1970, by the attempted expedient of increasing the mortgage debt to $20,514.64 as was done in the so-called corrective mortgage which was executed on 23 January 1970, though dated January 13, 1970.
Counsel for appellant argues that because the mortgage of January 13, 1970 contained a provision that it secured "any other indebtedness" of the mortgagors, the $2,700.00 mortgage at least should be considered as a part of the debt secured under the mortgage of January 13, 1970. Counsel for appellant cite First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64, in support of this contention.
In the present case, the Chancellor found that Mrs. Barron's signature to the $2,700.00 mortgage was a forgery. Further the $2,700.00 mortgage was additionally void for the reason that the acknowledgment of Mrs. Barron's purported signature was taken before Fred Barron, an interested party. Either or both of these factual situations would prevent the $2,700.00 mortgage from being considered as a debt of Mrs. Barron having an existence at any time.
We further note that in Bain, supra, the court pointed out:
The Chancellor decreed that the appellee pay to the Register the sum of $14,928.64, the actual amount loaned by the appellant, plus certain other costs, including a reasonable fee to appellant's attorney.
The Chancellor recited in his decree:
While the court made no finding as to usury, the evidence tends to show that the mortgage for $18,250.00 was usurious. This being so, the appellant was entitled to recover only the principal sum borrowed. Section 65, Title 9, Code of Alabama 1940.
*242 No cross-appeal was made in this case. We do not therefore consider whether the appellee was actually liable for the amounts awarded the appellant in the decree. We are clear to the conclusion, however, that the evidence was entirely sufficient to support the decree insofar as the attack made on it by the appellant is concerned. Particularly is this true if the usual presumption of correctness be accorded the findings and conclusions of the Chancellor made after an ore tenus hearing.
Affirmed.
All the Justices concur. | August 30, 1973 |
9572eec9-01bf-44bb-833a-1002aaadc115 | Parker v. McGaha | 280 So. 2d 769 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 769 (1973)
W. Fred PARKER
v.
John T. McGAHA.
SC 237.
Supreme Court of Alabama.
July 12, 1973.
*770 James Noel Baker, Opelika, for appellant.
Volz, Capouano, Wampold & Prestwood, Montgomery, for appellee.
HEFLIN, Chief Justice.
This is an appeal by defendant-appellant W. Fred Parker from an order of the Circuit Court of Lee County, granting plaintiff-appellee John T. McGaha's motion for a new trial.
Plaintiff-appellee McGaha brought an action against defendant-appellant Parker *771 to recover payment on a note for $100,000 held by the plaintiff-appellee McGaha as payee. The makers of the note were the defendant-appellant Parker and two other men, Edward D. Mixon and Wilbur Ramsey, both of whom were originally named as defendants but who were dismissed because of the inability to obtain service upon them. Parker admitted signing the note and its default status. After a jury verdict for Parker was rendered, the trial court granted McGaha's motion for new trial.
Prior to the transactions leading to this litigation, McGaha had voting control of a corporation called Southern Factors, Inc., by owning stock directly and by owning all the stock of another corporation, Colonial Securities Company, which in turn owned stock in Southern Factors, Inc.
In 1969, Ramsey and one Joe B. King purchased all of McGaha's stock and gave to McGaha a note for $196,500 as payment. As security for the note, the stock certificates were placed in escrow by Ramsey and King subject to the terms of an escrow agreement. Payment default quickly occurred on this original note. Thereafter Parker, Mixon, and Ramsey began negotiations with McGaha which led to the execution in May, 1970, of the note here sued upon by which Parker, Mixon and Ramsey promised to pay McGaha $100,000. In return McGaha assigned all of his right, title and interest in the original $196,500 note to Parker, Mixon and Ramsey (Ramsey being a maker of this note along with Joe King). The original $196,500 note refers to an escrow agreement and purports to incorporate it by reference. Both documents refer to a buy-sell agreement between McGaha and Ramsey and King, but this instrument was never put in evidence.
After making three separate payments of $2,500 on the $100,000 note in accordance with an agreed schedule of payments, the makers, including Parker, defaulted. The default occurred after Parker learned that Southern Factors, Inc. was "defunct." The stock certificates remained in escrow.
In his motion for new trial, as amended, McGaha assigned 24 grounds for granting the motion, several of which attack the sufficiency of the evidence to support the verdict. The trial court granted the motion because, as it stated, it was "of the opinion that the verdict of the jury and the judgment of the court thereon are contrary to the evidence in this case and the law applicable to the issues involved." On this appeal, Parker claims the court erred in granting the motion and assigns 11 grounds in support of his averment. After careful consideration thereof, this court can not say the trial judge erred.
Code of Alabama, 1940, Title 7, § 276 (Recomp. 1958) provides the statutory grounds for granting a motion for new trial. One provision of Section 276 states that a new trial may be granted if "the verdict or decision is not sustained by the great preponderance of the evidence. . .."
This court has repeatedly enunciated its position with respect to the state of the evidence to support an order granting or refusing a motion for new trial. These rules need not be set out in detail but a summary of those pertinent to this case may be useful.
Further it has long been held that upon an appeal from the granting of a motion for new trial, based upon the fact that the verdict was contrary to the evidence, there is a presumption in favor of the trial court when there is a conflict in the evidence. Mullinax v. Hufham, 269 Ala. 435, 113 So. 2d 671 (1959); Lee v. Moore, 282 Ala. 461, 213 So. 2d 197 (1968).
Parker contends that the evidence plainly and palpably supports the verdict and that the trial court was plainly and palpably in error in granting the motion for a new trial. However, a review of the evidence and the issues raised by the pleas of the defendant Parker makes it clear that the contentions of Parker are not tenable. The positions of the parties concerning what was the real consideration for the note, whether there was a partial failure of consideration and whether there was a total lack of consideration must be reviewed in light of the evidence and the pleas.
Parker contends that the consideration was that he and his co-makers of the $100,000 note were to receive the shares of stock held by the escrow agent and since they never received the shares of stock there was a failure of consideration. McGaha contends that the consideration for the $100,000 note was the assignment of the $196,500 note and his rights and interests in the escrow agreement.
McGaha established, on cross examination of Parker, that Parker had read the escrow agreement and that he knew the stock could not be immediately delivered out of escrow. Parker also stated, "we were purchasing their note [the $196,000 note in default] and also the Escrow Agreement." Further, McGaha testified that he sold Parker the original note and escrow agreement, and that he "didn't have any stock for sale, because the stock actually belonged to Wilbur Ramsey and Joe King." In addition, an escrow agent, Mr. Leon Capuano, testified as to his duties as escrow agent and the procedure required for the holders of the original note (now Parker, Mixon and Ramsey) to remove the stock from escrow.
In pleas 2 and 3 Parker alleges a partial failure of consideration in that he never received the shares of stock from McGaha and the delivery of such shares of stock by McGaha was part of the consideration for the execution of the $100,000 note. In such pleas there was the allegation that the shares of stock were owned or controlled by McGaha.
McGaha contends that the record does not show that Parker offered any evidence to prove that McGaha owned or controlled the stock as alleged in pleas 2 and 3. The evidence does indicate that the stock was owned by King and Ramsey and encumbered by the escrow agreement at the time of the execution of the $100,000 note, and that McGaha's interest would be merely that of a secured party. There is no question that the escrow agreement had been assigned to Parker and his co-makers. It was highly questionable whether Parker proved the allegations of pleas 2 and 3. Even if the allegations of pleas 2 and 3 were clearly substantiated by the evidence, this would not have justified a jury verdict of no recovery whatsoever.
A partial failure of consideration is a totally different defense from want of consideration, in that a partial failure "only goes to reduce recovery, and in legal effect concedes the consideration sufficient to sustain the note." First National Bank v. Town of Luverne, 235 Ala. 606, 180 So. 283 (1938). Such a partial failure is only a pro-tanto defense to the action. See Jackson v. Sample, 234 Ala. 75, 173 So. 510 (1937); Title 7A, Section 3-408, Code of Alabama, 1940, as amended (Recompiled *773 1958-1966 Added Volume). Moreover, since there was undisputed proof that the assignment of the $196,500 note was part of the consideration for the $100,000 note, the lower court will not be held in error for granting the new trial in view of the allegations of pleas 2 and 3.
Plea number 4 alleges a want of consideration in that Parker never received the stock certificates as the consideration for the execution and delivery of the $100,000 note and the delivery of the stock certificates was the consideration for the note. A plea of want of consideration is a plea of a total lack of consideration, and must be specially pleaded. See Hyatt's Supply Co. v. Lyle, 222 Ala. 460, 133 So. 3 (1931). Once want of consideration is pleaded, there is still a presumption that the note is valid, and the defendant has the burden of proving his plea. Skipper v. Wright and Colquett, 30 Ala.App. 409, 6 So. 2d 896 (1942); Loper v. Gill, 282 Ala. 614, 213 So. 2d 674 (1968); Gates v. Morton Hardware Co., 146 Ala. 692, 40 So. 509 (1906); and Flintkote Co. v. Grimes, 281 Ala. 707, 208 So. 2d 87 (1968). See also Title 7A, Section 3-307(2), Code of Alabama, 1940, as amended (Recompiled 19581966 Added Volume).
Even the evidence of Parker established that the assignment of the $196,500 note to Parker, Mixon and Ramsey was part of the consideration for the execution and delivery of the $100,000 note. Thus the proof of total want of consideration to support plea number 4 was lacking.
It appears to this court that the trial judge was not plainly and palpably in error in setting aside the jury verdict and granting the motion for a new trial.
There are many other contentions by both parties, but they need not be reached since the foregoing discussion is dispositive of this case. When a motion for new trial is granted and at least one ground for the motion is valid, the trial court's ruling will be affirmed. Jones v. Jefferson County, 206 Ala. 13, 84 So. 174 (1921); Lynn v. Mellon, 217 Ala. 75, 114 So. 680 (1927).
Affirmed.
COLEMAN, BLOODWORTH, McCALL and JONES, JJ., concur. | July 12, 1973 |
80f172e3-587f-46a2-889a-f45c74da84dc | Nationwide Mutual Fire Insurance Co. v. Wilborn | 279 So. 2d 460 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 460 (1973)
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a Corporation,
v.
Ethel B. WILBORN and State Farm Fire and Casualty Insurance Company, a Corporation.
SC 15.
Supreme Court of Alabama.
June 21, 1973.
*461 Marshall H. Fitzpatrick, Birmingham, for appellant.
Robert B. Propst, Anniston, for appellee, Ethel B. Wilborn.
C. William Gladden, Jr., Birmingham, for State Farm Fire & Casualty Co.
HEFLIN, Chief Justice.
This is an appeal from a final decree rendered by the Circuit Court of Calhoun County, Alabama, in Equity, denying appellant-respondent's (Nationwide) motion for a rehearing and fixing the amount of damages at $26,105. Appellee-complainant, Ethel Wilborn (Wilborn), filed a bill seeking a declaration of her rights of recovery for a fire loss to a residence on which fire insurance policies had been issued by Nationwide, and appellee-respondent, State Farm Fire and Casualty Insurance Company (State Farm). In addition to the two insurance companies mentioned above, Wilborn joined Robert and Katie Stewart (Stewarts) and the First National Bank of Anniston, Alabama (First National), as parties respondent. Of the four original respondents, only the two insurance companies have appeared in this appeal. At the time the State Farm policy was issued the Stewarts held an equitable interest in the insured property; however, it is not contested that they have no interest in this litigation. First National, although originally joined as a party respondent because it appeared as mortgagee in the Nationwide policy, has consented to the declaratory relief sought by Wilborn.
The chain of events which gave rise to this controversy began on March 27, 1970, when Wilborn and the Stewarts entered into a contract whereby the Stewarts agreed to buy, and Wilborn agreed to sell, certain property known as 21 Mont Camille Drive in Anniston for a purchase price of $27,500. The Stewarts were obligated, as a part of the agreement, "to keep the property insured ... in an amount not less than $25,500, loss payable to the party of the first part [Wilborn] as his interest may appear." Pursuant to this provision the Stewarts took out a policy of fire insurance with State Farm in the amount of $27,500, which went into effect on April 20, 1970. The State Farm policy contained what is known as the New York Standard Mortgage Loss Payable clause, usually referred to as the New York Standard Mortgage clause, naming Wilborn as mortgagee, which clause reads as follows:
Wilborn, prior to April 20, 1970, had procured on the same premises through Nationwide, a fire policy which also contained the New York Standard Mortgage clause naming First National, the institution through which Wilborn had originally financed the construction of the house in question, as mortgagee.
The sale of the insured property was cancelled on May 26, 1970, for reasons not here pertinent, and the Stewarts were relieved of any further liability to the vendor, Wilborn. On July 2, 1970, the fire loss made the basis of this suit occurred. Wilborn's bill sought recovery for this loss. The trial court rendered its amended final decree on September 3, 1971, declaring that "no coverage for the loss made the subject of this suit existed under the policy of insurance issued by State Farm" and that "Wilborn have and recover of Nationwide..., the sum of $28,795." The court's decree of November 4, 1971, denying Nationwide's motion for a rehearing, affirmed its former decree of September 3, 1971, except as to the amount of damages, which was reduced to $26,105. It is from this decree that Nationwide has appealed.
The principal point of dissension in the instant case is presented by Nationwide's assignment of error number 5 under which it argues that the trial court erred in holding that no coverage existed under the State Farm policy. Nationwide maintains that the New York Standard Mortgage clause in the State Farm policy constitutes a separate contract between State Farm and Wilborn, which is enforceable in favor of Wilborn, who occupied, in effect, the position of mortgagee, notwithstanding the fact that her interest in the insured property had increased or ripened into full ownership prior to the fire loss.
The question thus presented is whether the mortgagee may recover insurance proceeds under a policy containing a New York Standard Mortgage clause after the mortgage debt has been fully satisfied by foreclosure or otherwise.
From the language of the New York Standard Mortgage clause it is clear that the parties contemplated the possibility of foreclosure and that protection should be afforded the mortgagee or its assigns. National Fire Ins. Co. v. Finerty Investment Co., 170 Okl. 44, 38 P.2d 496 (1934). The concept was that the insurance should follow the property. In Alabama there have developed two distinct (and distinguishable) lines of cases. One line allows the insurance to follow the property past foreclosure and may be classified as the "loss after foreclosure" concept. The other line of cases makes a difference if the debt owing to the mortgagee has been fully satisfied by foreclosure or otherwise following loss. This can be classified as the "foreclosure after loss" principle.
The first line of cases applies where the foreclosure occurs prior to the loss, and allows the mortgagee to recover the proceeds under the policy. Continental Insurance Company of New York v. Rotholz, 222 Ala. 574, 133 So. 587 (1931). In that case, Rotholz brought suit against Continental. The policy contained the New York Standard clause in which Rotholz was designated as mortgagee.
Within the policy coverage time and prior to the loss by fire the mortgagee, Rotholz, foreclosed and purchased the property at the foreclosure sale. The defendant, insurer, contended that there had been a change of ownership or occupancy by virtue of the mortgagee's foreclosure and purchase of the property at the sale; that the policy provided that the policy *463 should be void in the event that the mortgagee fail to notify the insurer of such a change of ownership or occupancy; that no such notice was given, and, hence, the policy was void. This court, in answering these contentions and allowing recovery by the mortgagee, commented on the nature of the New York Standard Mortgage clause as follows:
The fact that the mortgage debt had been satisfied prior to suit did not preclude recovery by the mortgagee under the policy where the loss occurred subsequent to satisfaction of the mortgage debt. The Rothols holding was reaffirmed in Hartford Fire Insurance Co. v. Aaron, 226 Ala. 430, 147 So. 628 (1933), by way of dicta.
In Rotholz, the mortgagee had foreclosed prior to the fire loss and immediately before the loss in question occupied the position of owner, not mortgagee. The former mortgagee, the owner at the time of loss, had an insurable interest in protecting his property from loss by fire. The elevation of the mortgagee to the position of owner by foreclosure prior to the fire loss did not affect the operation of the New York Standard Mortgage clause which provided that:
This provision has the effect of transferring the payment of the proceeds in the event of a fire loss to the owner where the mortgagee has foreclosed prior to the loss. Other jurisdictions which have considered the issue have interpreted this clause in the same manner as this court did in Rothols. Union Central Life Ins. Co. v. Codington County Farmers Fire & Lightning Mutual Ins. Co., 66 S.D. 561, 287 N.W. 46 (1939); Guardian Savings & Loan Association v. Reserve Ins. Co., 2 Ill.App. 3d 77, 276 N.E.2d 109 (1971); National Fire Ins. Co. v. Finerty Investment Co., 170 Okl. 44, 38 P.2d 496 (1934); Prudential Ins. Co. v. German Mutual Fire Ins. Association, 231 Mo.App. 699, 105 S.W.2d 1001 (1937); Haskin v. Greene, 205 Or. 140, 286 P.2d 128 (1955); 5A Appleman, Insurance Law and Practice, Section 3403 (1970). Where there is a New York Standard Mortgage clause the rationale of these cases protects the mortgagee after foreclosure or other change of ownership or title. In other words, the insurance follows the property even if foreclosure has occurred before loss.
Where, on the other hand, the loss precedes the foreclosure, the rule is different since the mortgagee has an election as to how he may satisfy the mortgage indebtedness by two different means. He may look to the insurance company for payment as mortgagee under the New York Standard Mortgage clause and may recover, up to the limits of the policy, the full amount of the mortgage debt at the time of the loss. In this event he would have no additional recourse against the mortgagor for the reason that his debt has been fully satisfied.
The second alternative available to the mortgagee is satisfaction of the mortgage debt by foreclosure. If the mortgagee elects to pursue this latter option, and the foreclosure sale does not bring the full amount of the mortgage debt at the time of the loss, he may recover the balance due under the insurance policy as owner. If the foreclosure does fully satisfy the mortgage debt, he, of course, has no additional recourse against the insurance company, as his debt has been fully satisfied. Aetna Ins. Co. v. Baldwin Co. Building & Loan *464 Association, 231 Ala. 102, 163 So. 604 (1935).
The plaintiff in Baldwin County brought suit against Aetna on a policy containing a New York Standard Mortgage clause, in which it was named as mortgagee. The plaintiff-mortgagee had foreclosed and become the purchaser of the property after the fire loss made the basis of the suit. The New York Standard Mortgage clause contained in the policy was identical, in all material aspects, to the clause in Rotholz. The issue presented was stated as follows: "... whether plaintiff was shown to have a right to recover the amount of the loss thus insured, continuing up to the time of the beginning of the suit, or whether his right terminated by the foreclosure sale in which the plaintiff was the purchaser at the full amount of the debt."
This court in Baldwin County distinguished between satisfaction of the mortgage debt before the loss, and satisfaction of the mortgage debt after the loss, stating that in the former case, the mortgagee had been allowed recovery, while in the latter, the mortgagee has been denied recovery under the policy in the event of full satisfaction at foreclosure. The rule of law enunciated in Baldwin County may be stated as follows: Anyone designated as mortgagee in the New York Standard Mortgage clause forfeits his right to recover, under the policy, the amount of loss insured against, by foreclosure and purchase at the foreclosure sale or other full satisfaction of the mortgage debt, where such satisfaction occurs subsequent to the loss in question.
The rationale stated in Baldwin County is that at the time of, and immediately after the fire loss, plaintiff-mortgagee is the creditor of the owner, the plaintiff-mortgagee having had security for that debt in the form of a mortgage on the property and a claim for the loss on the insurance policy. But in no event is the plaintiff-mortgagee due to collect more than the debt secured. If the owner-debtor had paid plaintiff-mortgagee voluntarily, all of the plaintiff's rights and remedies would have immediately terminated, and he could not have proceeded further to enforce any feature of his security. When a mortgagee forecloses and at the sale he collects the full amount of his debt, he is no longer a creditor, as his debt is paid. The rationale and holding of Baldwin County appears to be in the mainstream of judicial thought throughout the country. Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir. 1962); Power Building & Loan Association v. Ajax Fire Ins. Co., 110 N.J.L. 256, 164 A. 410 (1933) ; Gattavara v. General Ins. Co., 166 Wash. 691, 8 P.2d 421 (1932); 5A Appleman, Insurance Law and Practice, Section 3403 (1970).
Thus the status of the Alabama law relative to the effect of foreclosure on the mortgagee's right of recovery, under the policy, for damages as a result of injury to the mortgaged property, was clearly divisible into the two lines of cases discussed above. In the "foreclosure prior to loss" situation (Rotholz) the foreclosure (or other change or increase of ownership or change of title as contemplated by the loss payee clause) occurs in the context of the insured property existing in its undamaged condition and the satisfaction of debt takes into account the value of such property in its undamaged condition prior to loss and the need for the insurance to follow the property. In the "foreclosure after loss" situation (Baldwin County) the foreclosure occurs in the context of the insured property having been damaged and the satisfaction of the debt takes into account the damaged condition of the property at the time of such foreclosure. In the former situation (foreclosure prior to loss), the value of the undamaged property at the time of foreclosure is an incident to the satisfaction of the debt; while in the latter (foreclosure after loss), to allow recovery of insurance proceeds by the mortgagee after full satisfaction of the debt would amount to mortgagee's unjust enrichment.
*465 It appears that these two lines of cases have established a general rule and an exception to the general rule where a policy contains a New York Standard Mortgage clause. The general rule is that this loss payee clause affords protection to the mortgagee as his interest may appear before or after foreclosure or other methods of change of ownership or title or other mediums of increased ownership of the mortgage property and the insurance follows the property; the exception to this general rule being that if the mortgage indebtedness is fully satisfied after loss by foreclosure or otherwise, then the insurance company is no longer liable to the mortgagee.
This court, therefore, holds that the mortgagee was covered by the State Farm policy at the time of the loss made the basis of this suit, as owner. This holding is further supported by the plain language of the policy itself which provides that "this insurance as to the interest of the mortgagee (or trustee) ... shall not be invalidated... by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property. ..."
State Farm argues that the case of Gordons Transports Federal Credit Union v. Alabama Farm Bureau Mutual Casualty Company, Inc., 278 Ala. 338, 178 So. 2d 164 (1965) impliedly overruled Rotholz and is controlling in this case. The loss in Gordons was an automobile and that case is distinguishable from a factual basis. Further it does not appear that the policy there involved contained a similar loss payee clause.
Next, State Farm insists that the trial court was correct in holding that there was no coverage for the mortgagee, Wilborn, under the State Farm policy for another reason wholly independent of its argument concerning the New York Standard Mortgagee clause. It argues that where the policy contains a loss payable clause and provides for subrogation against the mortgagor, the insurer is not required to pay any loss to the mortgagee where there was no debt or mortgage subsisting at the time of the loss. The only case cited by State Farm in support of this proposition is Standard Fire Insurance Co. v. Fuller, 90 U.S.App.D.C. 300, 195 F.2d 782, a District of Columbia Circuit Court of Appeals case. This court finds this holding to be inapposite of the Alabama law discussed above, and has been unable to find an Alabama case in point, and counsel have cited none.
Counsel for State Farm makes the statement, in brief, that the Alabama case of North River Insurance Company v. McKenzie, 261 Ala. 353, 74 So. 2d 599 (1954), supports the Fuller holding; however, this court finds the two cases to be distinguishable. The McKenzie case involved a suit by the insurer against the insureds to recover, out of a judgment recovered by the insureds from the tort-feasor, the amount paid by the insurer on account of damages to the property insured. There is no tort-feasor in the instant case and obviously no recovery was had by the insured against any such third person. Hence, the trial court's holding cannot be supported by State Farm's argument that the insurer is not required to pay any loss to the mortgagee where there was no debt or mortgage subsisting at the time of the loss.
Having determined that at the time of the fire loss to Wilborn's property there were in force in her favor two policies of insurance on the burned dwelling, the question becomes whether Nationwide is entitled to a 12/23 apportionment of the amount fixed as damages. The State Farm policy contains the following provision:
"10. Apportionment:
The Nationwide Mutual policy contains a provision which is substantially identical to the State Farm clause:
If the policies of two insurance companies are in force at the date of the loss and the status of the two insurers is that of insurers of the same property of the same insured against the same hazard, they are each proportionately and severally liable for the loss at the ratio which the amount of their respective policies bears to the whole insurance covering the property against the perils involved. Louisville Fire & Marine Insurance Co. v. St. Paul Fire & Marine Insurance Co., 252 Ala. 532, 41 So. 2d 585 (1949).
State Farm contends that the two policies did not insure the "same insured" as required under Louisville Fire & Marine. It reasons that the loss, under Nationwide's policy, up to $18,889.44, was payable to First National under the loss-payable clause; whereas, State Farm's liability, if any, is solely to Wilborn as mortgagee. This argument is at odds with the evidence in this case, which made clear the fact that there was nothing due the bank under its mortgage at the time of the trial of the case, hence, the bank was not entitled to any portion of the proceeds of either of the two policies.
This court, therefore, holds that the Wilborn property was covered by two insurance policies against the hazard of fire, and that Nationwide and State Farm must *467 share the liability on a pro rata basis. Nationwide is liable for 30,000/57,500(12/23) of the loss; and State Farm is liable for 27,500/57,500(11/23) of the loss. The plaintiff is further entitled to interest.
This cause is reversed and remanded with instructions for the trial court to enter a final decree for the plaintiff in accordance with this opinion.
Reversed and remanded with instructions.
MERRILL, HARWOOD and FAULKNER, JJ., concur.
COLEMAN, J., concurs in the result. | June 21, 1973 |
a8916a19-6cf7-478d-ba61-437111a66f86 | Weldon v. State | 280 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 186 (1973)
In re Charles Edward WELDON, alias
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 407.
Supreme Court of Alabama.
June 28, 1973.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
No appearance 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 Weldon, alias v. State, 50 Ala.App. 477, 280 So. 2d 183.
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and FAULKNER, JJ., concur. | June 28, 1973 |
792cbd4f-cef9-47cf-899a-a2738c178153 | Smith v. State | 282 So. 2d 907 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 907 (1973)
Homer Lee SMITH
v.
The STATE of Alabama.
SC 359.
Supreme Court of Alabama.
August 30, 1973.
Rehearing Denied September 27, 1973.
Arnold W. Umbach, Jr., Opelika, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Samuel L. Adams, Sp. Asst. Atty. Gen., Dothan, for the State.
FAULKNER, Justice.
Homer Lee Smith was indicted by the Grand Jury of Lee County, Alabama, for the offense of burglary in the second degree. He was tried by a jury on a plea of not guilty. He was found guilty as charged in the indictment and was sentenced to ten years in the State penitentiary. He appealed his conviction and sentence to the Court of Criminal Appeals. On April 24, 1973 the appeal was transferred to this Court.
The victim of the alleged burglary was Moses Glenn who was working out a fine for D.W.I. at the Auburn police headquarters. Glenn testified that when he went to work on the morning of July 21, 1971, he *908 left all the doors of his house locked. When he reutrned home in the afternoon of the same day, he found a door open and the screen off one widow. He went into a bedroom and noticed that the drawers of a chifforobe and chest of drawers were open. He called the police. He then noticed that a yellow sports shirt was missing. His wrist watch, cuff links, and a few other things left lying on a chair were also missing. Glenn, who was convicted of forgery in 1961, further testified that he had not given any person permission to enter his house.
The State's case was made on an alleged voluntary confession given by the accused, Smith, to Lt. Frank deGraffenried and Sgt. Murphy of the Auburn Police Department. Smith could not read or write, but could write his name. He allegedly confessed that he went into the house and took the yellow sports shirt. The alleged confession was taken in writing by the police, who read it back to the accused. He signed it.
The circumstances surrounding this alleged voluntary confession is the basis of this appeal.
After the jury had left the courtroom, and out of the presence of the jury, Lt. deGraffenried testified that he had advised Smith of all his constitutional rights and Smith made the statement voluntarily. The statement was then read. Defense counsel entered an objection to the admission of the statement.
The jury was brought into the courtroom and questions concerning the voluntariness of the statement were propounded to the officer. Defense was permitted to question on voir dire:
"A. No, sir.
"Q. Was this onWas this during the week?
"A. It was during the week.
"Q. A week day?
"A. Yes, sir.
"Q. So Courts were available and open on this day?
"MR. UMBACH: Your Honor,
"Q. Why was he not taken before a Magistrate the next day?
"MR. WRIGHT: Objection.
It is Smith's contention that the court erred in not allowing a complete inquiry into the conditions surrounding the taking of his statement before the jury.
The authorities cited by the trial court hold that after a person has been indicted, failure to bring him before a committing magistrate becomes a moot question. Trammell, supra. However, in this case, the issue of whether a preliminary examination was held, concerns an arrest and subsequent questioning on August 1st and 2nd. The defendant was not indicted until September.
A confession is not inadmissible solely because it was made after arrest by an officer and before the accused was taken before a committing magistrate. Myhand v. State, 259 Ala. 415, 66 So. 2d 544 (1953); Ingram v. State, 252 Ala. 497, 42 So. 2d 36 (1949). However, our courts have held that the jury is to consider all of the facts and circumstances surrounding the taking of a confession in determining the weight and credibility that it will give to the confession. Bennett v. State, 46 Ala.App. 535, 245 So. 2d 570 (1971); Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965); Johnson v. State, 242 Ala. 278, 5 So. 2d 632 (1941). Whether the defendant was taken before a magistrate in compliance with title 15, § 160, Code of Alabama 1940, Recompiled 1958, is a relevant factor for the jury to consider in determining the voluntariness of a confession. Davis v. State, 42 Ala.App. 374, 165 So. 2d 918 (1964); see cases cited therein.
In limiting the cross-examination of Detective deGraffenried the trial court denied defense counsel the right to go into all of the circumstances surrounding the taking of the defendant's confession for the consideration of the jury.
Reversed and remanded.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur.
MERRILL, HARWOOD, McCALL and MADDOX, JJ., dissent. | August 30, 1973 |
26fa7386-732c-4cd5-ac2f-22a40816b7eb | Hamner v. Mutual of Omaha Insurance Co. | 282 So. 2d 256 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 256 (1973)
In re Ruby B. HAMNER
v.
MUTUAL OF OMAHA INSURANCE CO.
Ex parte Ruby B. Hamner.
SC 206.
Supreme Court of Alabama.
August 30, 1973.
Walter B. Henley, Northport, for petitioner.
No brief for the State.
COLEMAN, Justice.
Petition of Ruby B. Hamner for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Hamner v. Mutual of Omaha Insurance Company, a Corp., 270 So. 2d 87 (6 Div. 116).
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, MADDOX, McCALL and FAULKNER, JJ., concur.
JONES, J., recuses self. | August 30, 1973 |
e24face3-7b97-4f71-bf6d-a7d2980ebfb4 | Shipman v. State | 282 So. 2d 700 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 700 (1973)
In re Thearon SHIPMAN et al.
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 371.
Supreme Court of Alabama.
August 30, 1973.
*701 William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, petitioner.
No brief for the defendant.
BLOODWORTH, Justice.
The petition of the State of Alabama for a writ of certiorari to review the decision of the Court of Criminal Appeals in Shipman v. State, 51 Ala.App. 80, 282 So. 2d 696, reversing defendant Shipman's conviction for possession of narcotics because of an illegal search and seizure, was granted.
The facts are set out in the opinion of the Court of Criminal Appeals, Shipman v. State, 51 Ala.App. 80, 282 So. 2d 696 [M.S. March 20, 1973], and need not be repeated here.
Briefly, the State's position is that the heroin packages were validly seized because they were in "plain view" of the officer who saw defendant Shipman shift some cellophane packages from one hand to the other hand and then conceal them in his boot top.
However, there is nothing in the opinion of the Court of Criminal Appeals to even suggest that the officer knew or had any judgment as to what the white substance was in the cellophane packages at the time of the seizure. As a matter of fact, the officer specifically testified he did not know what was in the packages, except that it appeared to be some white substance. At one point he indicated it was powder.
It is well settled that one cannot make a search legal by what it turns up. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Dennis v. State, 40 Ala.App. 182, 111 So. 2d 21 (1959). Furthermore, it has been held that for plain view to justify a warrantless seizure, the incriminating character of the object must be apparent. Coolidge v. New Hampshire, 403 U.S. 443, 446, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Stanley v. Georgia, 394 U.S. 557, 569 et seq., 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) (concurring opinion of J. Stewart).
In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the most recent pronouncement by the United States Supreme Court on the "plain view" doctrine, Mr. Justice Stewart, writing for a plurality of the court, stated:
The concurring opinion of Mr. Justice Stewart in Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), which in the Coolidge opinion is cited with approval in its analysis of the plain view doctrine, is even more explicit. In Stanley, officers entered the defendant's dwelling with a valid search warrant specifying various gambling paraphernalia. No gambling material was found, but the officers seized several reels of film, spent some 50 minutes exhibiting them by projector, then arrested the defendant for possession of obscene film. Justice Stewart, joined by Justices Brennan and White, described the seizure of the film as "unwarranted and unconstitutional" because "[t]his is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection." (Emphasis added)
This principle has been recognized by commentators in the most recent writings on search and seizure. For example, in an annotation "Search and SeizurePlain View," 29 L. Ed. 2d 1067, the following comment appears: "It has been suggested that even if an object is observed in `plain view," the `plain view' doctrine will not justify seizure of the object where the incriminating nature of the object is not apparent from the `plain view' of the object." (Emphasis added)
An excellent analysis which pre-dates many of the cases in the area can be found in Comment, "Probable Cause to Seize and the Fourth Amendment: An Analysis," 34 Albany L.Rev. 658 (1970). This comment explores precisely the issue at bar, i. e., "the status of a seizure where the seizing officer did not know, or have probable cause to believe, that the item seized was a fruit, instrumentality, or contraband evidencing another crime." The author's conclusion is that such a seizure contravenes the Fourth Amendment.
More recent writings on the subject simply accept this principle as a settled rule. See, e. g., Kuipers, "Suspicious Objects, Probable Cause, and the Law of Search and Seizure," 21 Drake L.Rev. 252, 263 (1972); Scurlock, "Basic Principles of the Administration of Criminal Justice with Particular Reference to Missouri Law," 38 U.Mo. Kansas City 167, 198 (1970); Comment, "Search and Seizure: Probable Cause for Seizure," 7 Suffolk U.L.Rev. 184, 190 (1972); Rintamaki, "Plain View Searching," 60 Military L.Rev. 25, 39 (1973).
The Tennessee Supreme Court followed and quoted with approval from the annotation at 29 L. Ed. 2d 1067 in Armour v. Totty, 486 S.W.2d 537 (1972). In that case the court held that the incriminating nature of the object in "plain view" must be apparent to the officer. The court wrote, viz:
"* * *
Likewise, in State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966), the Oregon Supreme Court reversed a conviction for possession of narcotics where the officer seized pills which he did not know to be contraband but of which he was suspicious. The court recognized that "before the officer had the right to seize the implements of a crime committed in his presence,... he must have reasonable grounds to believe that the article he has discovered is contraband and therefore a crime is being committed." (Emphasis added) The court concluded, after a thorough review of the law of search and seizure:
The conviction was reversed.
The Louisiana Supreme Court in State v. Jackson, 263 La. 849, 269 So. 2d 465 (1972), in an opinion authored by Chief Justice McCaleb, also has recognized this rule that the officer must possess some judgment, based on his training and experience, i. e., reasonable or probable cause to believe that the matter in his "plain view" is contraband. That court held, viz:
The Fifth Circuit Court of Appeals in United States v. Sokolow, 450 F.2d 324 (1971), rejected a contention as to the "plain view" doctrine being applicable where there was a warrantless seizure of serial numbers from some air conditioners stored in defendant's garage which the officers entered without authority, and the officers at the time of seizure had no knowledge or indication they were contraband or stolen. Conviction of defendant was reversed.
In Commonwealth v. Hawkins, 280 N.E.2d 665 (1972), the Supreme Judicial Court of Massachusetts reached the same result, holding that officers who were searching an apartment under a valid warrant for drugs could not "seize" stolen bonds as being in "plain view" unless the officers had probable cause at the time of seizure to believe they were stolen. The court concluded that "in almost every case in which such a seizure has been upheld * * * the officers making the seizure then knew or had probable cause to believe that the articles were stolen." In that case, the officers did not have such probable cause. The conviction was reversed.
In United States v. Thomas, 16 U.S.C. M.A. 306, 36 C.M.R. 462 (1966), the Court of Military Appeals reversed a conviction based upon a plain view seizure for which the officer had no probable cause to believe the item seized was contraband. The court stated, viz:
Finally, even the Alabama Court of Criminal Appeals has recognized this principle in reversing the conviction of a defendant for receiving and concealing stolen property in Agee v. State, 45 Ala. App. 203, 228 So. 2d 30 (1969) (per Price, P. J.). The court held:
To like effect is the following from an opinion of the Court of Criminal Appeals in Jenkins v. State, 46 Ala.App. 719, 248 So. 2d 758 (1971), (per Cates, J.):
The reason for this rule is apparent. If the rule were otherwise, an officer, acting on mere groundless suspicion, could seize anything and everything belonging to an individual which happened to be in plain view on the prospect that on further investigation some of it might prove to have been stolen or to be contraband. It would open the door to unreasonable confiscation of a person's property while a minute examination of it is made in an effort to find something criminal. Such a practice would amount to the "general exploratory search from one object to another until something incriminating at last emerges" which was condemned in Coolidge v. New Hampshire, supra. Ex post facto justification of a seizure made on mere groundless suspicion, is totally contrary to the basic tenets of the Fourth Amendment.
More importantly, the officer, if he were so justified in seizing items upon mere suspicion, could then hold the accused, as was done here, until the next day when the results of the toxicologist's report was forwarded. Such would clearly contravene the Fourth Amendment.
Thus, although the officer may have been justified in stopping the car, asking for the operator's license and asking an explanation of the actions of the operator and passengers under out so-called "stop and frisk law," Title 15, § 118(1), the facts of this case do not justify operation of the "plain view" doctrine. (See White v. State, 49 Ala.App. 5, 267 So. 2d 802 (1972) and State v. Wilson (R.I., 1972), 297 A.2d 645.)
For an item in plain view to be validly seized, the officer must possess some judgment at the time that the object to be seized is contraband and that judgment must be grounded upon probable cause. The record in this cause reveals that this requirement has not been met.
*705 We are, therefore, of the opinion that the writ is due to be quashed as having been improvidently granted.
Writ quashed.
HEFLIN, C. J., and COLEMAN, HARWOOD and FAULKNER, JJ., concur.
MERRILL, MADDOX, McCALL and JONES, JJ., dissent.
JONES, Justice (dissenting).
I admit this is a close case. My dissent is based on an interpretation of one of the "warrantless" exceptions to the search and seizure rule rather than any disagreement with the rule or its recognized exceptions. In Daniels v. State, [Ms.], April 5, 1973, 290 Ala. 316, 276 So. 2d 441, Mr. Justice Bloodworth, speaking for a unanimous court, set out the "warrantless" exceptions a total of sixone of which is enumerated as the "plain view" exception. I believe the "plain view" exception to the warrant requirement is applicable to this case.
Admittedly, a vast majority of the cases applying this doctrine have dealt with situations in which the police have a warrant to search for specific objects and in so searching come across some other article, or where the police by inadvertence come across evidence while in "hot pursuit" or "incident to arrest"; but the "plain view" doctrine has a field of operation where the police officer, though not searching for evidence, nevertheless sees an incriminating object or substance.[1]
Here an extraneous valid reason for the officer's presence existed; and, given the initial intrusion, the seizure of an object in plain view is consistent with the constitutional protection served by the warrant requirement if such seizure is based on probable cause. The existence of probable cause under the facts and circumstances of this case is, then, our point of difference.
It seems to me that the conduct of the defendant in attempting to secrete the two packages containing white powder in plain view of the police officer must be weighed in light of the total circumstances of the situation. Defendant was a passenger in the car that had just been stopped by a police officer. Immediately thereafter, almost as if by reflex action, the defendant transferred two cellophane packages from one hand to the other and then to his boot top. The officer's testimony that he did not know what was in the packages does not distract from the suspicious circumstances generated by the defendant's conduct.
The majority opinion stresses the point that the only testimony we have is the officer's testimony that "it was a white substance, and [he] had reason to believe it wasn't headache powder." I would submit that the witness had ample reason to believe that the white powder was contraband as opposed to headache powder because of the defendant's attempt to hide the same from the police officer immediately upon his awareness of the officer's presence. The officer had the right to assume that a substance other than contraband would not have been an object of hiding.
Under the holding of the majority, one of three alternatives necessarily obtains; (1) We will induce the enforcement officer to include in his testimonial repertoire the magic phrase "in my best judgment the substance was contraband"; (2) we will require the law officer to become an expert in the identification of illicit drugs by mere sight, smell, or taste; or (3) we will take from the law enforcement machinery the *706 "plain view" exception when applied to facts and circumstances such as those at bar, and thus leave the police officer to helplessly witness an apparent crime. I view neither of these alternatives as acceptable.
I would hold that probable cause existed, and that the warrantless seizure of the contraband came within the "plain view" exception and its introduction into evidence was not violative of the defendant's Fourth Amendment rights.
I would grant the writ and affirm the conviction.
MERRILL, MADDOX and McCALL, JJ., concur.
[1] For an excellent discussion of the "plain view" exception, see Coolidge v. New Hamp shire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (Part II-C) (1971). | August 30, 1973 |
8b7af5d1-c79f-4f85-a463-d0ee73dad7c4 | Colston v. Gulf States Paper Corporation | 282 So. 2d 251 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 251 (1973)
J. D. COLSTON et al. etc.
v.
GULF STATES PAPER CORPORATION, a corporation, etc.
SC 289.
Supreme Court of Alabama.
August 30, 1973.
*252 Drake, Knowles & Still, University, for appellants.
McQueen, Ray & Allison, Tuscaloosa, for appellees.
MERRILL, Justice.
This appeal is from a decree in a declaratory judgment class action in which complainants-appellants were denied the relief sought to have appellee adjudged to be liable for the severance tax levied by Act 169, Acts of Alabama 1945, as amended, and listed in the 1958 Recompilation as Tit. 8, § 231(2) et seq. Further references to the Act will be by the 1958 listings.
Appellants, J. D. Colston and Willie B. Colston, are brothers who are engaged in the business of cutting, hauling and selling pulpwood, generally being known in the trade as pulpwood producers. They operate their own independent business, with their own employees and equipment. Since 1965 they have been selling pulpwood primarily to appellee, Gulf States Paper Corporation, at its Aliceville Chip Mill. Prior to that, they were selling to an independent pulpwood dealer who operated a woodyard at the location now occupied by the Chip Mill. They have cut pulpwood from land owned by appellee and from land owned by others. Appellee exercises no supervision over appellants even when cutting on company land, except to inspect to insure cutting to specifications, and appellee does not supervise the day-to-day operations of appellants.
When a tract of appellee's land is ready for cutting the district superintendent or game management personnel takes a producer to the tract and formulates with him a proposal under which the producer will purchase the standing timber. A pulpwood *253 sale contract is prepared, signed by the producer, and forwarded to the Forestry Division of appellee in Tuscaloosa for final approval. If approved, the contract is executed, under the terms of which standing timber meeting certain specifications is sold to the producer at a stipulated stumpage price.
Under the contract a producer is required to cut to specifications, to account to appellee for the amount of wood cut and to pay the stumpage price accordingly. There are no limitations on the producer's right to sell the pulpwood after it is harvested, except for payment of the stumpage, and there is no requirement that the pulpwood be sold to appellee. Appellants state that they "knew" that they had to sell the pulpwood to appellee, though they were never told they had to, and there is no company policy to that effect. Most of the pulpwood cut from appellee's land is later sold to appellee, though there are instances where wood is sold to others. The timber sales are made to producers who are already delivering to appellee, and the expectation is that they will continue this existing business relationship. This expectation is reinforced in the Aliceville area, where the appellants operate, by the fact that the Aliceville Chip Mill takes tree length logs rather than the normal pulpwood length. Different equipment is required to handle tree length logs, both for the producer and the woodyard, and until comparatively recently no other woodyard in the area was so equipped.
The pulpwood sale contract also contains a provision requiring that the buyer-producer pay the Alabama Forest Products Severance Tax. Appellants state that they were not aware of this provision in the contract though appellee's district superintendent states that he did advise them of it. Since 1965 the tax has been deducted from appellants' payment each week, but they had never protested nor asked about the deduction. Appellants state that they had never read the pulpwood sale contract, and that a copy had never been furnished to them until about one month prior to filing of bill, though they had never requested a copy and there was nothing which would have prevented their reading one.
The arrangement under which producers purchase standing timber from appellee is similar to that under which they purchase standing timber from any other landowner. The stumpage price paid to appellee is competitive, and some other landowners want more for stumpage.
The normal company policy is to issue a purchase order to the producer for a specified quantity of pulpwood at a specified price to be delivered over a three or six-month period. For the area in which the appellants operate this purchase order would be issued by the operations manager at the Demopolis mill. A purchase order is to be executed for each producer, whether he is cutting from company owned or private land, and the terms are identical regardless of where the wood comes from. The purchase orders do not coincide in time with any pulpwood sale contracts, and are totally independent of any timber sale. The purchase orders specify a delivered price, with no reference to stumpage.
In the case of appellants, only one such purchase order was found in the company records. Normal policy requires a current purchase order on all producers delivering to the mill, and the lack of such purchase orders for the Aliceville Chip Mill is apparently because over supply has not been a problem and the Aliceville personnel did not consider them necessary. Except for a few short periods, normally a week, when the Aliceville woodyard has been overstocked, appellee would purchase any suitable wood delivered.
Each week the producer is paid for the wood delivered, and at the same time is furnished a weekly settlement sheet. This sheet indicates the quantity of wood purchased, the unit price and total price, as well as deductions. Deductions are made for stumpage where appropriate, whether the stumpage is due to appellee or some *254 private landowners. Deductions of stumpage for private landowners are made either at the request of the landowner or the producer, and appellants are content with this procedure since it saves them the trouble of paying the landowner. In addition, deductions are made to repay loans sometimes made by appellee, and on the producer's request to make payments on bank loans and similar independent obligations of the producer. The settlement sheet also discloses the deduction of the appropriate severance tax.
The severance tax is also deducted from a producer's settlement who is cutting pulpwood from land other than that owned by appellee.
Of 250,000 cords of wood that appellee uses per year, about 80,000 cords comes from its own lands.
The trial court, after hearing the testimony, held "* * * that the Alabama Forest Products Severance Tax is not due to be paid by the Respondent, but is, according to law and the terms of the contract of the parties, payable by the Complainants, and a proper and legitimate deduction from sums otherwise due and owing from Respondent to Complainants."
Title 8, § 231(3) levies "* * * a privilege tax on account of the business activities upon every person engaging or continuing to engage in the state in the business of severing timber or any other forest products from the soil, for sale, profit or commercial use whether as owner, lessee, concessionaire or contractor. * * *"
Section 231(2)(f) provides:
Appellants contend that under this definition, appellee is both the "owner" and "manufacturer" and it, not appellants, is liable for the tax.
Absent a contract or agreement to the contrary, appellants' contention would be sound. But the agreement, signed by both parties and introduced as complainants' Exhibit 7, provides in paragraph 15 as follows:
This exhibit and Exhibit 6 were introduced by appellants as representative contracts for the sale of timber and pulpwood from appellee to appellants and the stumpage rates were: pine pulpwood, $5.00 per unit (5600 lbs.), hardwood pulpwood, $2.00 per unit (6000 lbs.) and sawtimber, $30.00-$40.00 per 1,000 bd. ft.
It was agreed that was the normal and usual method of doing business by other timberland owners.
Appellants introduced Exhibit 5 which was the pulpwood purchase order agreement and which stated the price appellee would pay for the severed timber delivered at its mill. Those prices were: pine, $15.00 (5600 lbs.), soft hardwood, $12.00 (6000 lbs.) and hard hardwood, $11.00 (6000 lbs.).
It is apparent that the contractual arrangement consists of two separate contracts. The first is for the sale of the standing timber, which passes title, fixes a stumpage price per cord and provides that the "Buyer" (appellants) shall be liable for the severance tax on the timber severed.
The second contract governs the price which is paid the "Buyer" for the pulpwood when it is delivered in proper cuts to *255 the mill, regardless of where the wood comes from or what price was paid for stumpage.
Appellants did not and do not contend that they are employees of appellees. They hire and fire their own help, pay them, own their equipment, and testified that they are independent businessmen engaged in a partnership.
Under the facts stated and the evidence presented there is no error shown to set aside the finding of the trial court that the appellants, having contracted to pay the severance tax, should pay it.
Appellants contend that the contractual arrangement is a "fiction and a sham." If the arrangement were designed to keep the severance tax from being paid, there might be some merit to the contention. But it is agreed that the severance tax is paid to the State. There is no attempt to avoid payment. The statutory duty is on appellee to collect the tax from whomsoever it may buy pulpwood and timber and pay that tax to the State. There is no dispute that this has been done. We cannot agree that the transactions are a fiction and a sham.
Appellants also argue that the contractual arrangement is void and unenforceable as against public policy.
The true test to determine whether a contract is unenforceable because of public policy is "whether the public interest is injuriously affected in such substantial manner that private rights and interests should yield to those of the public." Maddox v. Fuller, 233 Ala. 662, 173 So. 12; Lowery v. Zorn, 243 Ala. 285, 9 So. 2d 872. Here, the public interest is not affected. The public interest demands that the severance tax be paid. Both appellants and appellee are liable to the State for the tax. They contracted that appellants would pay it and that appellee would collect it and pay it to the State.
Assuming, without conceding, that appellee would be liable for the tax under the statute, parties are still at liberty to contract where no principle of public policy is involved. This court, in Ivey v. Dixon Investment Co., 283 Ala. 590, 219 So. 2d 639, stated that "the general rule is that no contract or agreement can modify a law, the exception being where no principle of public policy is violated, parties are at liberty to forego the protection of the law." The exception is applicable here because there is no violation of public policy.
Finally, a cogent reason for upholding the decision of the trial court is that a contract which may not be made in compliance with statutory provisions is not void if the statute is merely a revenue measure and is not regulatory and for the protection of the public. The principle is stated in Bowdoin v. Alabama Chemical Co., 201 Ala. 582, 79 So. 4, as follows:
Many cases are cited including Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 So. 510, 132 Am.St.Rep. 20.
The Forest Products Severance Tax Act was a revenue act and made no attempt to regulate the business of cutting or growing timber, nor to specify who might or might not engage in such business, or how it should be conducted, or what kind of contracts they should make. It provided a tax on any severance of trees and provided who should pay the tax, who *256 would collect it and how often the collectors would report.
We find no reason to reverse.
Affirmed.
All the Justices concur. | August 30, 1973 |
9eec441a-0155-4392-bb1e-5ba48d1fbf3e | Grant v. City of Mobile | 282 So. 2d 291 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 291 (1973)
In re Jack E. GRANT and Morris Berger et al., as Members of the Mobile County Personnel Board
v.
The CITY OF MOBILE, a municipal corp.
Ex parte CITY OF MOBILE.
S.C. 468.
Supreme Court of Alabama.
August 30, 1973.
William H. Brigham, Mobile, for petitioner.
Mylan R. Engel, Mobile, for respondents.
*292 COLEMAN, Justice.
An employee of the City of Mobile was employed as a toll collector on the Bankhead Tunnel. He had been employed about twenty-seven months and had no suspensions or reprimands during that period. His duties included the collection of money and placing the money in a safe near his place of employment. At regular times other employees or agents of the city went to the safe, removed the money and took it to a bank. The procedure provided a method of checking and reporting toll collections so that the agents who took the money to the bank could, upon opening the safe, promptly determine whether any money was missing.
On a certain morning, the agents of the city discovered that a money bag charged to the employee toll collector was missing from the safe. The bag contained $280.00. The toll collector testified that he had placed the bag in the safe. He did not contend that the bag was not missing when the safe was opened.
The city dismissed the toll collector from employment by the city. He appealed to the Personnel Board of Mobile County as provided by Act No. 470, approved September 15, 1939; Local Acts 1939, page 298.
After a hearing the Board found that the city was justified in taking disciplinary action against the employee, but found that the penalty of dismissal was too severe. The Board ordered:
Rule 14.7, adopted by the Board, provides that the Board may rescind, modify, alter or affirm the penalty imposed by the appointing authority or impose such additional or different penalty "as may be warranted by the evidence adduced at the hearing." In Jordan v. City of Mobile, 260 Ala. 393, 71 So. 2d 513, this court held that, as against the objection urged against Rule 14.7 in Jordan, the rule was not contrary to the authority to adopt rules granted by Act No. 470.
In the instant case, the city appealed to the circuit court as provided by Section XXXIV of Act No. 470. Section XXXIV provides that findings of fact of the Board contained in the transcript of the proceedings before the Board, ". . . if supported by substantial evidence adduced before said Board . . ." shall be conclusive on such appeal.
The order of the circuit court contains the following statement:
The circuit court found that the charges of the city against the employee were not proved to be unwarranted; that the finding of the Board concerning the insufficiency of necessary "safeguards" for toll collectors' protection was not supported by substantial evidence; and that the order of the Board is not reasonable in that its findings of fact, that necessary "safeguards" were lacking which justified a refusal to uphold the dismissal of the employee toll collector, is based on no legal evidence. The circuit court vacated the order of the Board and reinstated the city's order of dismissal of the employee.
The employee appealed to the Court of Civil Appeals. That court reversed the order of the circuit court and reinstated the order of the Board. The city applies to the Supreme Court for certiorari to review the judgment of the Court of Civil Appeals.
The city asserts that the decision of the Court of Civil Appeals is in conflict with prior decisions of this court in two respects.
The city argues that this court has specifically held that the power of the Board concerning dismissals by the city under Act No. 470 is to:
The assertion by the city is taken from a statement in Jordan v. City of Mobile, 260 Ala. 393, 400, 71 So. 2d 513, 519, where this court said:
The last quoted statement from Jordan was made by this court in considering argument that Rule 14.7 was not authorized by Act No. 470. This court quoted from Section IX of the act which authorizes the Board to adopt rules necessary, appropriate, or desirable to carry out the provisions *294 of the act. This court, in Paragraph [1] of the opinion, agreed that the delegation of power to make rules cannot extend to the making of rules which subvert the statute giving such power or which repeal or abrogate the statute.
Rule 14.7 contains the following provision:
The city appears to argue that the statement in Jordan limits the Board's power to modify the penalty or impose an additional or different penalty to a case where the grounds for dismissal are "technical or the cause therefor trivial." We do not agree with the city's argument. The limits on the Board's power to change the penalty under Rule 14.7 are that the Board "may impose such additional or different penalty as may be warranted by the evidence adduced at the hearing." The first proposition argued by the city is without merit.
The city argues further that the statement by the Court of Civil Appeals, that ". . . the discretionary actions of the Board, to-wit, the extent or severity of the punishment are not to be disturbed by a Circuit Court on review. . . ." is contrary to the holding that there must be some legal evidence to support the finding of a commission in a judicial matter, citing Yielding v. Stevens, 265 Ala. 562, 92 So. 2d 895; Ex parte Homewood Dairy Products Co., 241 Ala. 470, 3 So. 2d 58, and North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183.
The city contends also that there is no "legal" evidence to support the action of the Board in changing the penalty.
The quoted statement from the Court of Civil Appeals is only part of a sentence in the opinion. Reference to the opinion shows that the Court of Civil Appeals set out in full Section XXXIV of Act No. 470 and then said:
That part of the statement quoted by petitioner (that "extent or severity of the punishment are not to be disturbed by the circuit court on review") standing alone is clearly in direct conflict with the last sentence of Section XXXIV of Act No. 470 which recites:
Subsequently, in the opinion in the instant case, the Court of Civil Appeals undertakes to state its conclusions from the evidence and on page 12 of the opinion makes the following statement:
The Court of Civil Appeals thus appears to recognize that if the ruling, order, or action of the Board in reducing the penalty *295 is unlawful or unreasonable, the circuit court has power to vacate or modify the same. By finding that there is substantial evidence to support the Board's action, the Court of Civil Appeals also recognizes that substantial supporting evidence is necessary if the action of the Board is to be held lawful and reasonable.
This court has held that the action of the Personnel Board of Jefferson County was correctly reversed by the circuit court for lack of evidence to support the action of the Board. In Yielding v. Stevens, supra, the Board had found an employee guilty of conduct unbecoming an employee in the public service. The decision of the Board was reviewed in the circuit court on petition for common law certiorari. The circuit court rendered judgment quashing and annulling the decision of the Board on the ground that there was no evidence to support the Board's finding of the employee's guilt.
In Rule 14.7, as stated above, the power of the Board to impose a different penalty is determined by "the evidence adduced at the hearing." In the instant case, the circuit court found that the action of the Board in changing the penalty was not supported by the evidence. The Court of Civil Appeals has reached the opposite conclusion and says "there is substantial evidence upon which the Board may be warranted in modifying or altering the penalty imposed by the appointing authority."
On appeal to the Court of Civil Appeals, it is the responsibility of that court to examine the record and ascertain whether the evidence supports the finding of the trial court. In the instant case, the question is whether the evidence supports the action of the Board before whom the testimony was taken ore tenus.
The evidence is not set out in the opinion of the Court of Civil Appeals. When the evidence is not set out by one of the courts of appeal in its opinion, this court will not, on petition for certiorari, look to the record and ascertain whether the evidence is sufficient to support the finding of the courts of appeal as to the sufficiency of the evidence to support the judgment of the trial court. Many authorities to support this rule of review are cited in Alabama Digest, Certiorari, See: Postal Telegraph Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Thompson v. Curry, 256 Ala. 564, 56 So. 2d 362; State Dept. of Industrial Relations v. Ford, 278 Ala. 352, 178 So. 2d 190; Humphrey v. Boschung, 287 Ala. 600, 253 So. 2d 769.
The Court of Civil Appeals has held the evidence sufficient to sustain the action of the Board. This court has said:
Writ denied.
All Justices concur. | August 30, 1973 |
260a9f8b-fa21-44c7-a568-0c50a7dbaad6 | Locke v. Locke | 280 So. 2d 773 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 773 (1973)
Louise L. LOCKE
v.
Martha A. LOCKE et al.
SC 148.
Supreme Court of Alabama.
July 19, 1973.
*774 Adams, Gillmore & Adams, Grove Hill, for appellant.
Armbrecht, Jackson & DeMouy and Broox G. Holmes, Mobile, Scott & Porter, Chatom, for appellees.
HEFLIN, Chief Justice.
This is an appeal from the Circuit Court of Choctaw County, Alabama, in equity, wherein the appellant-complainant Louise L. Locke filed a bill seeking a declaration of her interest in certain real estate which allegedly constituted the homestead owned by her late husband, Robert Locke, at the time of his death.
The bill, as last amended, which contained a prayer that the appellant-complainant Louise L. Locke be declared the fee simple owner of said real estate, contained averments that the geographical area of the real estate in question was less than 160 acres; that the decedent had occupied said real estate as his homestead at the time of his death; that the value of the real estate was more than $6,000.00; and that the decedent "owned no other real property in the State of Alabama at the time of his death other than his said homestead and some minerals in and under certain lands; . . .."
The appellees-respondents (collateral heirs at law of Robert Locke and their vendees) filed demurrer to the bill on some 37 grounds. The demurrer was sustained by the lower court. Having alleged all pertinent facts upon which she believed herself to be entitled to the relief prayed for, Louise L. Locke moved for dismissal of her bill, which motion was granted. It is from this final decree that the appellant-complainant has taken appeal, assigning as error the ruling of the lower court sustaining the demurrer.
The attention of this court is directed to several grounds of the demurrer which asserted that the relief prayed for must be denied because the bill affirmatively shows on its face that the decedent owned realestate in Alabama other than the homestead at the time of his death. The portion of the bill to which the appellees-respondents refer contains the following allegation:
The homestead of a childless Alabama resident who dies intestate vests absolutely, in fee simple, in the widow only *775 where, among other matters, said homestead is the only real estate owned by the decedent at the time of his death. Title 7, Section 663, Code of Alabama, 1940, as amended (Recompiled 1958); Nathanson v. Key, 286 Ala. 486, 242 So. 2d 389 (1971). The bill in the case under review clearly shows that the decedent owned minerals in and under certain lands at the time of his death, as well as the homestead in question. Thus, the issue evolves to this: Are mineral rights such "other real estate" as will prevent the vesting of fee simple title to the homestead in the appellant-complainant.
The appellant-complainant, of course, contends that they are not, and bases her argument on Sams v. Sams, 242 Ala. 240, 5 So. 2d 774 (1942), in which it was held that a cemetery lot was not such "other real estate" as would bar the vesting of fee simple title to the homestead in the widow. This court's holding in Sams was founded on the peculiar character of ownership of a cemetery lot. A cemetery lot is, in many respects, exempted from the operation and effect of some aspects of real property law. For instance, such property is not subject to administration (Kingsbury v. Flowers, 65 Ala. 479 (1880)) or partition (Kerlin v. Ramage, 200 Ala. 428, 76 So. 360 (1917)dicta), nor may it be mortgaged (Kerlin v. Ramage, supra). Mineral rights possess no such characteristics, and their ownership may not be equated with that of a cemetery lot on that basis, as argued by the appellant-complainant.
Additionally, there are certain public policy considerations present in the case of a cemetery lot which do not come into play where the "other real estate" owned by the decedent is mineral rights. The eventual need for a cemetery lot is something no one can escape, and its purchase at some time is inevitable. It is provident that such matters be dealt with prior to death. Had Sams been decided differently, no one could purchase a lot prior to death without defeating his widow's homestead rights. There being no corresponding need as to the purchase of mineral rights, the public policy which influenced this court's decision in Sams is nonexistent in the case under review.
Taking a more affirmative approach to the issue at hand, it is to be noted that mineral rights are considered "real estate" in Alabama, and this court so held in Brooks v. Cook, 141 Ala. 499, 38 So. 641 (1904). Although in Brooks the issue whether mineral rights were to be considered "real estate" arose in determining whether a conveyance of such rights must conform to the formalities required of a conveyance of real estate, this court, nevertheless, plainly stated that:
This holding is no less forceful because the inquiry in the case at bar arises from the question whether the widow takes a fee simple title under Title 7, Section 663, rather than whether a conveyance of mineral rights must comply with the formalities required of a conveyance of real estate as in Brooks.
Since the allegations of the bill show that the decedent did own "other real estate" in Alabama at the time of his death besides the homestead, it follows that the demurrer was properly sustained. The lower court's ruling is due to be affirmed if any one ground of demurrer is well taken. Brown v. W.R.M.A. Broadcasting Co., 286 Ala. 186, 238 So. 2d 540 (1970). Therefore, the lower court's ruling is affirmed.
Affirmed.
MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur. | July 19, 1973 |
a1dcb71c-5272-43fe-a2da-fddfd2c9f8b5 | Boswell v. Paramount Television Sales, Inc. | 282 So. 2d 892 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 892 (1973)
Charles A. BOSWELL, as Commissioner of Revenue, etc.
v.
PARAMOUNT TELEVISION SALES, INC., etc.
SC 442.
Supreme Court of Alabama.
August 30, 1973.
Rehearing Denied September 27, 1973.
*893 William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue, and B. Frank Loeb, Asst. Counsel, Dept. of Revenue and Asst. Attys. Gen., for appellants.
Robert J. Russell, of Ball, Ball, Matthews & Lamar, Montgomery, for appellees.
MADDOX, Justice.
Paramount Television Sales, a California corporation, filed a class suit for declaratory judgment in the Circuit Court of Montgomery County, in Equity, seeking to prevent the State Commissioner of Revenue from enforcing that portion of Act No. 96, Acts of Alabama, Special Session, 1971, p. 166, carried in the Code of Alabama, Recomp.1958, (1971 Supp.) as Title 51, § 629(21-28), which levies a privilege or license tax on persons engaging in the business of renting or leasing tangible personal property.[1]
The lower court entered a final decree holding Paramount and others in its class not subject to the tax imposed under Act No. 96. The State prosecuted an appeal to the Court of Civil Appeals. That court was without jurisdiction and transferred the appeal to this Court.
Paramount is not qualified with the Secretary of State to do business in Alabama, has no office, place of business or regular representative living in Alabama. Paramount negotiates with television stations in Alabama by mail or wire at its office in California or other places outside Alabama to send films or tapes to the Alabama stations for telecasts or broadcasts. As a result of these negotiations, a written contract is sent to the Alabama broadcasting station for signature and then returned to California or other place outside Alabama for final approval and signature by agents for Paramount. The contracts give permission to display, broadcast or telecast the copyrighted material for a specified time and for an agreed price. These license or lease contracts provide that such tapes or films containing the copyrighted material are then shipped to the local station by mail or common carrier from California or other place outside Alabama and are required to be returned to Paramount within forty-eight hours after the scheduled broadcast date.
The facts are not seriously disputed. Many facts were stipulated. The basic dispute between the taxpayer and the State revolves around one legal questionWas Paramount engaged in the business of renting or leasing tangible personal property in Alabama?
The trial court decided the question in favor of Paramount, apparently on two grounds, (1) Paramount was not doing business in Alabama within the meaning of the tax statute and (2) the films or tapes were not "tangible personal property." Did the trial court decide these issues correctly? We think not.
First, were the films "tangible personal property?" Paramount contends the essence of the transaction is an intangible right to publish and that the transfer of this right to publish or broadcast even though accompanied by delivery of tangible personal propertythe films, including reels and containersis not a rental of "tangible personal property." Paramount says that *894 in the absence of a license to publish or broadcast the film, the lease only gives the television stations the right to use the film. We do not accept this argument.
Paramount contracted that the film was to be used in the manner in which it was intended, for broadcast or telecast.
An agreement similar to the one involved in this case was considered in Florida Association of Broadcasters v. Kirk, Fla.App., 264 So. 2d 437, cert. denied, Fla., 268 So. 2d 534 (1972), a proceeding for declaratory judgment concerning liability for sales and use taxes. The District Court of Appeals of Florida affirmed the lower court's judgment that taxpayers were liable. The taxpayer contended that it was not subject to the tax because the use of the films was not a sale or rental of tangible personal property. The taxpayer attempted to distinguish between money paid for the actual physical film and that paid for the right to use the film. The court rejected this argument and noted:
The license to publish without the physical transfer of films would be valueless. See United Artists Corp v. Taylor, 273 N.Y. 334, 7 N.E.2d 254 (1937).
In a case where operators of motion picture theatres were held liable for sales tax on rented film from producers, the Supreme Court of Tennessee said:
In American Television Co. v. Hervey, Ark., 490 S.W.2d 796 (1973), the court held that a levy of a use tax on video tape material used by television stations pursuant to license agreements is a tax on tangible personal property.
Appellee cites a number of cases dealing with classification of a copyright and concludes that "the thing which is being assigned is a copyright which in itself is intangible." "We disagree.
It is true a copyright may be an incorporeal right to publish and exists detached from the corporeal property out of which it arises. See Vol. 18, Am.Jur.2d Copyright and Literary Property, § 18, p. 318; Vol. 18 C.J.S. Copyright and Literary Property § 19, p. 162; Local Trademarks, Inc. v. Price, 170 F.2d 715 (5th Cir. 1948); Clay County Abstract Co. v. McKay, 226 Ala. 394, 147 So. 407 (1933). However, a copyright only represents the materials composing it. It is the films or finished product which are leased here, not the copyright itself.
We conclude that the leased films are "tangible personal property" within the meaning of Section 1(h), Act No. 96, carried as § 629 (21)(h) of Title 51, Code of Alabama, Recomp. 1958, (1971 Supp.).
We come now to what we consider to be the decisive question. Was Paramount engaged in the business of leasing or renting tangible personal property in Alabama? We think so.
An article which has been transported in interstate commerce having arrived *895 at its destination and there held for use or disposal becomes subject to the state's taxing and police power. Alexander Film Co. v. State, 253 Ala. 439, 44 So. 2d 581 (1950), and cases there cited.
In Alexander Film, the question was whether the film company was liable for a state license tax. The facts, in almost every particular, were similar to the facts here. There, Alexander Film had a representative who contacted various places of business in Alabama and other states and suggested the making of a film to advertise the business of the particular customer. If an agreement was reached, the business customer agreed to pay for the rental of the film and the display space on the screen of the theatre in his local community. The contract was sent to the home office in Colorado and had to be accepted by the home office before becoming a binding contract. The film company then made arrangements with the local theatre for displaying the film advertisements. After display, the film was returned to the film company in Colorado. The representative of the film company who contacted the customers and theatres had no authority, and it was not his duty to collect delinquent installments. This Court held:
Paramount lays much stress on the statement in Alexander Film, supra, that if a company carries on no business within the state by a duly authorized instrumentality, it is not subject to a license tax. Paramount claims that it fits this categorythat none of its activities is performed except in the channels of interstate commerce.
The State contends that Act No. 96 levies a tax upon a local act"the transfer of possession of the film by Appellee to the local station and its use in Alabama and in the hands of the local station"which is sufficiently severable from the overall interstate nature of the transaction that the taxation of that particular act does not impede or unduly burden interstate commerce. In short, the State says the filmtangible personal propertycomes to rest in Alabama, is rented here, and then returned.
Except for the fact that Paramount had no travelling representative physically present in Alabama to solicit orders, the facts are substantially identical to those of the Alexander Film case. There, this Court found Alexander Film was doing business in Alabama and was subject to the license tax. Does the fact that Alexander Film used a representative to solicit business and Paramount used the mails, telephones and telegraphs to solicit make a difference? We think not. In Alexander Film, the Court held:
The fact that in Alexander Film there was a "representative" present in Alabama to conduct negotiations and here the negotiations *896 were handled through other means is without constitutional significance. The test, as stated in Scripto, Inc. v. Carson, 362 U.S. 207, 80 S. Ct. 619, 4 L. Ed. 2d 660 (1960), is the "exploitation of the consumer market" by whatever means, and the nature and extent of the activities of the taxpayer in the state seeking to impose the tax levy.
While we recognize that a state cannot tax the privilege of carrying on an interstate business, we know that a state has the power to place a levy on an activity either before or after movement in interstate commerce. For example, see Graves v. State, 258 Ala. 359, 62 So. 2d 446 (1952); Paramount-Richards Theatres, Inc. v. State, 256 Ala. 515, 55 So. 2d 812 (1951). We think that transferring possession of the films to the local stations and renting them for use by the stations constituted a local act which was the taxable event occurring wholly in Alabama after the completion of its interstate journey and before the return of the property in interstate commerce. cf. Sanford Service Co. v. City of Andalusia, 256 Ala. 507, 55 So. 2d 856 (1951).
Paramount cites James v. United Artists Corp., 305 U.S. 410, 59 S. Ct. 272, 83 L. Ed. 256 (1939), as authority for its position that it carried on no business within this state by a duly authorized instrumentality. At first, James v. United Artists appears to favor Paramount's position. However, a close reading of James shows that the taxable event there was the business of "collecting income" from the rental of films. The Supreme Court did not decide in James whether a state could tax other events. The Court noted:
Paramount also relies heavily upon this Court's decision in State v. Lane Bryant, Inc., 277 Ala. 385, 171 So. 2d 91 (1965). Lane Bryant involved the sole question of whether a sufficient business nexus was shown to impose upon Lane Bryant the obligation to collect a use tax on purchases made outside Alabama. This Court held that since Lane Bryant merely sent catalogs by mail to residents of the state from outside the state, and filled orders outside the state exclusively by mail, it was not liable for use taxes. The Supreme Court of the United States reached a similar result in National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 386 U.S. 753, 87 S. Ct. 1389, 18 L. Ed. 2d 505 (1967). The Supreme Court of the United States noted in National Bellas Hess, that it had never held that a state could impose the duty of use tax collection and payment upon a seller whose only connection with customers in the state is by common carrier or the United States mail. If this were a case involving the sale of this film, we would be faced with an entirely different question. In discussing the power of Illinois *897 to levy the tax in National Bellas Hess, the majority of the Court opined:
In this case, Paramount has property in Alabama. Consequently, Lane Bryant is inapplicable. There, Lane Bryant was not present in Alabama. Here, Paramount is present by the ownership of film, which is rented and used in Alabama to make money, and then returned to Paramount.
Having decided that use of the films in Alabama is not such an integral part of the flow of interstate commerce that it cannot be separated from it, we hold that a levy of the tax for the privilege of "renting or leasing" personal property within this state does not impose an unconstitutional burden upon interstate commerce.
The license tax is not imposed upon one soliciting in this state contracts for the shipment of goods in interstate commerce. Rather the tax is imposed upon Paramount for the privilege of leasing or renting property within this state.
Legal niceties and fine distinctions aside, Paramount rented films to Alabama television stations. Paramount received money for these rentals. Paramount did not call their agreement "rental contracts," but that is what they were. Paramount has no place of business in Alabama, but that is not the test. The statute is non-discriminatory. It imposes a tax on all persons who rent or lease tangible personal property, whether resident or non-resident, whether the property is shipped to the stations in interstate or intrastate commerce, and whether the rental contract is solicited by mail, personal agent or representative, or otherwise.
We conclude that the trial court incorrectly determined that Paramount was not liable for the tax and its judgment is due to be reversed.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, McCALL, FAULKNER and JONES, JJ., concur.
COLEMAN, J., dissents.
COLEMAN, Justice (dissenting).
As I understand the instant case, no person did any act in Alabama while such person was acting as the agent or representative of Paramount.
The film was present in Alabama, but Paramount was not present in Alabama. All acts done by Paramount were done outside of Alabama.
Since Paramount did no act in Alabama, I am of opinion that no basis or "nexus" is shown so that a duty is imposed on Paramount to collect or pay a tax in Alabama. I would affirm the decree which holds Paramount not liable for the tax.
[1] Act No. 96 reads in part as follows:
"Section 2. Levy of Tax. In addition to all other taxes now imposed by law, there is hereby levied and shall be collected as herein provided a privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting tangible personal property at the rate of 4% of the gross proceeds derived by the lessor from the lease or rental of tangible personal property...."
"Section 3. Exemptions. There are exempted from the computation of the amount of the tax levied, assessed or payable under this Act the following:
"(a) The gross proceeds accruing from the leasing or rental of a film or films to a lessee who charges, or proposes to charge, admission for viewing the said film or films...." | August 30, 1973 |
e9ba43b2-34de-4321-996a-c343a107724a | Marcus v. State | 280 So. 2d 793 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 793 (1973)
In re Jerry MARCUS
v.
STATE of Alabama.
Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
SC 431.
Supreme Court of Alabama.
July 12, 1973.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
No brief for respondent.
BLOODWORTH, 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 in Marcus v. State, 50 Ala. App. 526, 280 So. 2d 786 on grounds that the decision is in conflict with prior decisions of this court, viz: McCants v. State, 282 Ala. 397, 211 So. 2d 877 (1968); Embrey v. State, 283 Ala. 110, 214 So. 2d 567 (1968); and Braggs v. State, 283 Ala. 570, 219 So. 2d 396 (1969).
The court is of the opinion that the same is due to be denied because there is no conflict with these three prior decisions of our court. Moreover, the petition fails to quote "that part of the prior decision of this court with which the conflict is alleged."
We agree with the Court of Criminal Appeals that the predicate laid under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) for the admission of the defendant's confession is inadequate because it does not warn defendant *794 "that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda v. Arizona, supra; Square v. State, 283 Ala. 548, 219 So. 2d 377; Wilson v. State, 44 Ala. App. 570, 216 So. 2d 741; Dueitt v. State, 44 Ala.App. 22, 201 So. 2d 405. We express no opinion as to other aspects of the decision.
It is thus that we agree with the Court of Criminal Appeals that the case is due to be reversed and remanded.
The writ is due to be denied.
Writ denied.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | July 12, 1973 |
4c52d104-5160-489e-a32e-6d130e8372ba | Albright v. State | 280 So. 2d 191 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 191 (1973)
In re Robert Raymond ALBRIGHT
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 428.
Supreme Court of Alabama.
July 5, 1973.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
No brief for respondent.
FAULKNER, 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 Albright v. State, 50 Ala.App. 480, 280 So. 2d 186.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | July 5, 1973 |
e3cd5e22-56ff-47d8-a5a1-4d3b33a06665 | Kenny v. State | 282 So. 2d 392 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 392 (1973)
In re Deborah Renee KENNY, alias
v.
STATE.
Ex parte Deborah Renee Kenny, alias Rene Kenny.
SC 469.
Supreme Court of Alabama.
August 30, 1973.
Ian F. Gaston, and J. D. Quinlivan, Jr., Mobile, for petitioner.
No brief for the State.
MERRILL, Justice.
Petition of Deborah Renee Kenny for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Kenny, alias v. State, 51 Ala.App. 35, 282 So. 2d 387.
Writ Denied.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | August 30, 1973 |
135c1879-24ed-4a47-b080-9596a934216d | Lietz v. State | 279 So. 2d 116 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 116 (1973)
Edwin LIETZ
v.
STATE of Alabama.
SC 350.
Supreme Court of Alabama.
June 7, 1973.
Thomas M. Haas, and Y. D. Lott, Jr., Mobile, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and P. B. McLauchlin, Jr., Sp. Asst. Atty. Gen., Ozark, for the State.
FAULKNER, Justice.
Edwin Lietz was convicted in Baldwin County of possessing marijuana for personal use (Code, Title 22, § 258(47)). He was fined $500, sentenced to six months in jail, sentence suspended, placed on two years probation, and taxed with costs. He appealed to the Alabama Court of Criminal Appeals, and the cause was thereafter transferred to this Court. Code, Title 13, § Ill(11a).
Appellant complains of numerous purported errors below. It is necessary to reach only one of these to decide this appeal.
Deputy Sheriff Walter Crook said he had a pickup order for a child who was the son of the defendant's brother. In Crook's words:
"THE COURT: The defendant?
*117 "WITNESS: Yes. He asked me what right I had to go into his house and wanted to see the order * * *.
"He advised me that I could not go into the house * * *.
The son of the defendant's brother was not to be found in defendant's house, but a great deal of marijuana was.
Prior to trial defendant moved to suppress the evidence on the grounds of illegal search and seizure. The motion was denied. We think the trial judge erred in his ruling.
Since there was no contention the officer had a search warrant, the search of defendant's home is justified by the State on the basis of alleged consent.
Consent to an otherwise illegal search must be clearly, unequivocally and convincingly proven. The courts will not lightly presume waiver of fundamental constitutional rights. Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965). Knox v. State, 42 Ala.App. 578, 172 So. 2d 787 (1964). The record in the instant case not only fails to affirmatively establish consent, but clearly shows that the search was against the will of the defendant.
Unless we enforce the restrictions of the Fourth Amendment and Article 1, § 5 of the Alabama Constitution on searches and seizures, an old saying will have to be revised. A man's home will no longer be his "castle", but, his "open house" for everyone with a shred of governmental authority *118 who wants to come inside. This cannot be permitted.
The judgment of conviction is reversed.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | June 7, 1973 |
c87413fd-6bff-4ee7-8f0a-3178668320cc | City of Tuskegee v. Sharpe | 288 So. 2d 122 | N/A | Alabama | Alabama Supreme Court | 288 So. 2d 122 (1973)
The CITY OF TUSKEGEE, a municipal corporation, et al.
v.
Andrew V. SHARPE.
SC 47.
Supreme Court of Alabama.
June 28, 1973.
Rehearing Denied January 24, 1974.
Gray, Seay & Langford, Tuskegee, for appellants.
Russell, Raymon & Russell, Tuskegee, for appellee.
COLEMAN, Justice.
Respondents appeal from decree for complainant in suit to compel specific performance of a contract granting complainant an option to purchase land.
Complainant is a natural person. Respondents are the City of Tuskegee which is a municipal corporation in Macon County, the mayor of the city, and five persons who are the duly elected members of the city council.
Complainant alleges that the city is the owner of certain land in Macon County comprising 659.67 acres, more or less; and that on September 22, 1964, the city council entered an ordinance on its minutes that the land was not needed for public or municipal purposes and granted to complainant an option to purchase the land for a period of years. The option recites in substance as follows:
That at a regular meeting of the council on September 22, 1964, the council duly entered an ordinance on its minutes that the land was not needed for public or municipal purposes; that the mayor, under § 477(1), Title 37, Code of 1940, as amended, was directed to execute said option to complainant; and that the city, acting through its mayor, and complainant agree as follows:
1. that complainant shall have an option for the purchase of the land for three years from this date for the amount per acre herein specified; and the price shall be $125.00 per acre;
2. that complainant will pay to the city $1.00 per acre for the privilege of this option; and, in the event the option is not exercised by complainant within three years, the option shall be null and void unless renewed as herein provided; but, *123 should the option be exercised within three years, then the amount paid for the option shall be credited on the purchase price, "and an additional credit of One Thousand Eight Hundred Dollars ($1,800) on the purchase price of the entire tract for the damage done to the said property by the cutting of timber by Atomedics, Inc.";
3. that should complainant desire to extend the option, it may be extended for an additional period of two years provided payment is made to the city of an additional sum of $1.00 per acre for such extension, and said payment shall be made not less than thirty days prior to the expiration of the three-year period of time herein specified;
4. that, should the option be extended for an additional period of two years, all provisions of the option for the original period of three years shall be incorporated into and be the same terms and conditions applicable to the two-year extension of the option.
The date of the option is October 1, 1964. It was signed and acknowledged by the mayor, the city clerk, and complainant.
Complainant avers that on September 30, 1964, he paid $659.67 to the city for the option; that he renewed the option for an additional period of two years by paying to the city $659.67 on August 23, 1967, which was accepted by the city.
Complainant avers that on April 10, 1969, he notified the mayor and council that he was exercising the option to purchase the land for $125.00 per acre, subject to the credits in the option; that on July 9, 1969, a communication was received from attorneys for the mayor and council in which they refused to comply with the terms of the option; and that subsequent letters were received advising complainant that the council was of opinion that the option was not binding, and, therefore they were refusing to convey the land to complainant.
Complainant avers that in the communication from attorneys for respondents dated July 9, 1969, a check for $1,573.33 was mailed with the letter as a refund of the option payments made by complainant, with interest thereon, but said check was returned to the attorneys for respondents and was not accepted by complainant.
Complainant offers to pay the price as specified in the option and prays that the court will require respondents to deliver to him a deed conveying the land, and for general relief.
Respondents filed answer and cross bill averring that the option was not valid and binding for reasons hereinafter discussed. In their cross bill respondents pray that the court declare that the action taken by the council in attempting to grant the option is null and void, that the option is null and void, and that complainant has no interest in the land.
On the hearing, certain facts were stipulated. As we understand the stipulation, it is agreed that the averments of the bill are true in so far as they recite that the city council did enter or undertake to enter the alleged ordinance authorizing the mayor to execute the option, that the mayor did sign the option, that complainant did make the payments of money and did undertake to exercise the option as alleged, that respondents did refuse to convey the land to complainant and did send the refund check to complainant and he refused to accept the refund.
on September 22, 1964, when the council adopted or undertook to adopt the ordinance authorizing the granting of the option, Rutherford was mayor, and Braswell, Gregg, Lumpkins, Sides, and Thompson were councilmen; and their terms of office expired thirteen days later on October 5, 1964;
*124 on October 5, 1964, the following took office: Keever, as mayor, and Gregg, Parker, Smith, Sides, and Buford as councilmen; and their terms expired October 7, 1968;
on October 7, 1968, the respondents took office, namely: Keever, as mayor; and Toland, Gregg, Bentley, Bulls, and Peterson, as councilmen, with terms expiring October 2, 1972.
Other facts are stipulated. On the hearing testimony was heard ore tenus. As may be appropriate other facts will be hereinafter mentioned.
The trial court rendered decree granting the relief prayed for in the bill and ordered respondents to execute a deed to complainant in accord with the terms of the option. Respondents assert that the decree is erroneous for the reasons next considered.
Respondents argue that the powers of a municipality are only the powers conferred on the city by statute, that no statute of this state gives a city the power to grant an option giving to another the right to purchase at his election real estate owned by the city as in the instant case, and, therefore, that the attempted execution of the option contract was beyond the power of the city and the option is void.
In an action against a city on a promissory note executed by the city, this court affirmed a judgment for the city. The judgment was based on a verdict returned after the trial court had given the general affirmative charge for defendant. Among other things, this court said:
The last mentioned case was cited with approval in Johnson v. City of Sheffield, 236 Ala. 411, 183 So. 265, and also in City of Bessemer v. Huey, 247 Ala. 12, 22 So. 2d 325, decided in 1945.
*125 In Huey this court affirmed a decree overruling demurrer to a bill to nullify a lease of city property. After considering the statutes then in effect, which provided that the city council "`. . . shall have the management and control of. . . all of the property, real and personal, belonging to the city . . .,'" this court said "It is clear from the foregoing that there is no express authority given to a city to sell or lease its real property," citing and quoting, the Cleveland School case, supra. A statute subsequently enacted in 1953 purports to grant to a city power to sell and lease its real property. See: Act No. 843, 1953 Acts, Vol. II, page 1135, approved September 19, 1953; 1958 Recompilation of Code 1940, Pocket Parts, Title 37, §§ 477(1), 477(2).
The complainant asserts that Act No. 843, supra, does grant to the city power to enter into a contract whereby an option to purchase real property owned by the city is granted to another.
The question for decision presented by the contentions thus stated is whether or not the statute does grant to a city the power to enter into a contract granting to another such an option.
This court, as to an option, has said that it ". . . ` . . . originally is neither a sale nor an agreement to sell. It is simply a contract by which the owner of property agrees with another, that he shall have the right to buy the property at a fixed price within a time certain. He does not sell his land; he does not then agree to sell it; but he does then sell something, viz.: the right or privilege to buy at the option or election of the other party. The second party gets in praesenti not lands, or an agreement that he shall have lands, but he does get something of value, that is the right to call for and receive lands if he elects. The owner parts with his right to sell his lands (except to the second party) for a limited period. The second party receives this right, or rather from his point of view, he receives the right to elect to buy. * * * . . .' . . .
"In 28 Am. & Eng.Ency.Law (1st Ed.), 77, it is said: `The right to purchase land is frequently the subject of contract, and such right may be styled an option. It is not an estate in land and an option is not a contract of sale. . . . `" Fulenwider v. Rowan, 136 Ala. 287, 303, 304, 34 So. 975, 979.
Fulenwider v. Rowan, supra, has been cited and quoted by this court in Bethea v. McCullough, 195 Ala. 480, 487, 70 So. 680; Lauderdale Power Co. v. Perry, 202 Ala. 394, 395, 80 So. 476; Cowin v. Salmon, 244 Ala. 285, 293, 13 So. 2d 190, 196; and Neely v. Denton, 260 Ala. 26, 29, 68 So. 2d 537.
The courts of Texas have considered the question whether a provision of the Texas Constitution authorized the granting of an option to purchase certain lands which *126 were the property of the county. The commissioners' court of Potter County authorized the county judge to sign an option in behalf of the county. With respect to the power of the county to grant the option, the Court of Civil Appeals of Texas had this to say:
On subsequent appeal of the cause, the Commission of Appeals of Texas said:
"Article 7, § 6, of the Constitution of Texas, in part, follows:
"`All lands heretofore or hereafter granted to the several counties of this state for educational purposes, are of right the property of said counties respectively, to which they were granted, and title thereto is vested in said counties. * * * Each county may sell or dispose of its lands, in whole or in part, in manner to be provided by the commissioners' court of the county. * * * Said lands and the proceeds thereof, when sold, shall be held by said counties alone as a trust for the benefit of public schools therein. * * *'
"The counties are granted power by the Constitution `to sell or dispose of its lands.' The county is trustee for the state. The schools are the institutions of the state established in the counties, and, as a part of the state's governmental policy, maintained in part from taxes and other funds directly furnished by the state, and in part from interest on the funds realized from the lands intrusted by the state to the management of the commissioners' courts of the counties as instrumentalities in executing said policy. The counties are thus trustees for the benefit of the state schools. Webb County v. School Trustees, 95 Tex. 131, 139, 65 S.W. 878; Delta County v. Blackburn, 100 Tex. 51, 58, 93 S.W. 419. As *127 such trustees their powers must be strictly construed. They may neither divest themselves of the powers conferred nor assume powers not conferred. Commissioners' courts shall `exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws of the state or as may be hereafter prescribed.' Article 5, section 18, Constitution of Texas, Mills County v. Lampasas County, 90 Tex. 603, 40 S.W. 403; Bland v. Orr, 90 Tex. 492, 39 S.W. 558; Baldwin v. Travis County, 39 Tex.Civ.App. 431, 88 S.W. 484. Neither the Constitution nor the statutes of Texas confers power upon the counties to do more than `sell or dispose of its lands.' The county's power `to sell or dispose of its lands' does not include the power to make a contract conferring upon the other party an exclusive right to purchase its lands at any future time. The option agreement with Ferrell was totally beyond the power of the county to make. No law prohibits such a contract; no statute attaches a penalty to the making of such a contract. It was neither malum prohibitum nor malum in se. No law prohibits it; it was not evil in itself; it was simply beyond the power of the county to make and, therefore, was void. It was a mere scrap of paper. Independent of any question of public policy, it never existed as a contract. There was never any power to execute itto give it vitality. Its life and vitality are not thwarted and choked out by public policy because it never had life and vitality. It cannot be that an agreement void for want of power in the parties to create any obligation by virtue of such agreement is void because contrary to public policy. Since it was void from its incipiency, it never had a binding effect independent of law or public policy; it could not have a tendency to be injurious to the public good; it had no tendency toward anything. It was impotent. It was as if no writing had ever been made. It did not conflict with the public good. It was nothing. Such an agreement is no contract whatever, and the acts of the parties in an effort to create one in nowise brings about a change in their legal status or in that of the subject-matter. It creats no rights; it imposes no duties; it entails no obligations. The parties and the subject-matter of the agreement remain in all respects just as they were before any act was performed in relation thereto. When the writing purporting to give an option was made, both parties knew, and they are held to have known, that it created no change in their relation to each other and none in their respective rights and relations to the county school land of Potter county." (Emphasis Supplied) Potter County v. C. C. Slaughter Cattle Co., (Tex.Com.App.), 254 S.W. 775, 777, 778.
In Whitworth College v. City of Brookhaven, D. C., 161 F. Supp. 775, plaintiff brought an action for specific performance of an option contract contained in a twenty-year lease of real estate executed by the defendant city. The contract provided that during the life of the instrument, the plaintiff shall have the right to purchase the leased property at a stipulated price. The city was authorized to deal with the property by a special act of the legislature. The act provided that the mayor and board of aldermen of the city "`. . . are hereby authorized and empowered, in their discretion, to lease or sell . . ." the property. The court said:
In Whitworth College, the plaintiff contended further that the contract was valid under Section 2391 of Mississippi Code of 1930, which enumerated among the powers of a municipality one as follows:
The plaintiff contended that under the code section, as well as the special Act, when the Mayor and Board of Aldermen had invited Mr. Daniel, president of the plaintiff corporation, to come to Brookhaven and he had entered into a written contract obligating him to operate a school in Brookhaven and to perform other obligations under the contract, it was based on a valuable consideration and was binding on the city. The court said:
In Adler v. Adler, 216 Ga. 553, 118 S.E.2d 456, the Supreme Court of Georgia held invalid an option to purchase which had been granted to the lessee in a lease executed by executor-trustees acting under authority of a will. The executor-trustees were empowered and directed to invest, reinvest, sell, lease, or transfer any of the property of the estate upon such terms as to them seemed best without any order of any court and without reporting to any court. No reference whatsoever was made in the will as to any power being conferred upon the executor-trustees to grant an option to purchase the property. The court said:
The court quoted from Moore v. Trainer, 252 Pa. 367, 97 A. 462, as follows:
As stated above, complainant relies on Act No. 843, supra, which, as here pertinent recites:
Complainant contends that the phrase, "direct the disposal of any real property" as used in the act includes the power to grant an option by a municipality. In support of this contention, complainant cites the cases next discussed.
In Interstate Materials Corp. v. City of Houston (Tex.Civ.App.), 236 S.W.2d 653, plaintiff brought action for specific performance of a contract under which the city agreed to lease certain property to plaintiff and in which plaintiff was given the option to purchase the property at the end of the four-year term provided lessee shall have complied with all terms of the lease and paid the rent provided for. Plaintiff was to pay to the city the additional sum of $8,100.00, and the city was to execute a deed conveying the property to plaintiff. Plaintiff paid the rent, complied with the terms of the lease, and elected to exercise the option to purchase. The city sought to avoid the contract to convey on the ground that the charter of the city had not been complied with. The charter provided that in all sales in which the price is in excess of $5,000.00, the property shall be first appraised by two appraisers appointed by the council, and the report of the appraisers shall be filed with the council. It appears that there was testimony and record evidence showing that two appraisers had been appointed and had filed their report, but ". . . no record was ever *130 found showing the formal appointment of these men by the Council to appraise the property."
The court held that the absence of the formal appointment of the appraisers was an irregularity, and the contract was not void on account of the irregularity and granted specific performance. The court quoted from a prior Texas case as follows:
The opinion does not consider the question whether the city had power to grant an option to purchase. The only contention by the city was that the power to sell was irregularly exercised, and not that there was an absence of such power. The court considered also certain matters relating to an assignment of the contract which are not pertinent here.
In Borough of East Rutherford v. Sterling Paper Converting Co., 21 N.J.Misc. 232, 32 A.2d 855, the Circuit Court of New Jersey for Bergen County held that the power to make a lease for a fixed and limited term included the power to grant an option to renew and extend the term of the lease for a stated additional term. It does not appear that the power of the municipality to grant an option to purchase was considered or involved in the case.
In Phelps v. Harris, 101 U.S. 370, 25 L. Ed. 855, the court held that a trustee had power to make partition of lands held in trust and to convey to one of the beneficiaries of the trust property the lands which had been allotted to the beneficiary. The court held that the power to make partition and convey title to the beneficiary was conferred on the trustee by a deed which provided that the trustee ". . . is to have power to sell and exchange said property after the death of" the grantor, and also by a will which gave the trustee power "to dispose" of any property devised in the will that might fall to testator's children and invest the proceeds in such manner as the trustee might think proper for their benefit. The question of the power of a trustee or agent to grant an option to purchase was not in anywise involved in Phelps and is not mentioned in the opinion.
In State v. Board of Land Commissioners, 50 Wyo. 181, 58 P.2d 423, the Supreme Court of Wyoming denied an application for rehearing in the same case reported in 50 Wyo. 205, 62 P.2d 516. On original deliverance, the court held that mandamus would not issue to require the defendant Board to deliver to plaintiff a patent conveying state land to plaintiff without a reservation of mineral rights to the state, when an examination of the papers clearly showed that the plaintiff had agreed to purchase the land subject to the mineral reservation to the state. On rehearing the court noted that the statute authorized the board not only to lease or sell, but also to "dispose of" the lands under the board's control, and observed that "to dispose of" includes more than "to sell." The court cited Phelps v. Harris, supra, where the court held that the power to dispose of included the power to partition and convey land to the beneficiaries of a trust. The court cited also American Home Missionary Society v. Wadhams, 10 Barb. (N.Y.) 597, decided in 1851, wherein the court held that when, prior to and in contemplation of marriage, a man and woman entered a premarital contract and agreed that the wife, during and notwithstanding her marriage should be permitted to enjoy, receive, and dispose of her separate property as if she were an unmarried woman, the wife had power to dispose of her property by will as *131 well as by deed, and a will executed by the wife was entitled to admission to probate after her death. The power to grant an option is not mentioned in either State v. Board of Land Commissioners, supra, or in Phelps or Wadhams.
In McLaren Gold Mines Co. v. Morton, 124 Mont. 382, 224 P.2d 975, the court held that a power of attorney authorized the attorney in fact to execute in the name of the grantor of the power, a lease of an "unpatented Lode Mining Claim" which lease granted an option to purchase to the lessee. The power of attorney recites in pertinent part as follows:
In view of the language of the power of attorney and the custom that one contracting to work an unproved mining claim "invariably exacts some contract from the owner by which he secures the first privilege of purchasing the property . . .," it is reasonable to construe the power of attorney in McLaren as conferring on the *132 agent the power to execute a lease containing the grant to the lessee of an option to purchase the unproved claim. In the instant case, no mining claim is involved. In McLaren, the grant included ". . . full power and authority to do and perform all and every act and thing whatsoever requisite, necessary, or proper to be done in and about the premises, as fully to all intents and purposes as I might or could do, if personally present . . ." No such broad and all inclusive power is granted to municipalities by Act No. 843. The circumstances here are quite different from those existing in McLaren.
In Aerojet-General Corp. v. Askew, 453 F.2d 819, in part V of the opinion, the United States Court of Appeals for the Fifth Circuit held that the defendants, which were statutory agencies of the State of Florida, did have authority to grant an option to purchase land held by the defendants. The court noted that defendants cited rulings of the courts in Texas, Georgia, and Mississippi in support of their contention that they had no power to grant the option, but the court does not discuss the cited cases (which include Potter County, supra) and concluded that:
In Appeal of Leech, 371 Pa. 84, 89 A.2d 351, the court held that a borough had authority to grant an option to sell land. The court said:
The statute cited is not set out or discussed in the opinion.
In Plant Food Co. v. City of Charlotte, 214 N.C. 518, 199 S.E. 712, the court held that the city had authority to enter into a contract for the removal of sludge from the city's sewage disposal plant although the term of the contract extended into the term of the successors of the city governing body. In Picket Pub. Co. v. Board of Commissioners, 36 Mont. 188, 92 P. 524, the court held that the board of commissioners of a county had authority to enter into a two-year contract for printing which extended into the term of the board's successors in office. In Corning v. Patton, 236 Ala. 354, 182 So. 39, the court held that the county governing body had authority to lease for a long term land of the county which was no longer used as the site for the county court house. The power to grant an option to purchase was not an issue in the three cases last cited.
In Johnson v. City of Sheffield, 236 Ala. 411, 183 So. 265, this court affirmed a decree holding valid a municipal bond issue. No grant of an option to purchase was involved.
King v. City of Mobile, 273 Ala. 109, 134 So. 2d 746, is cited for the proposition that a city is authorized to enter into a binding agreement to dispose of unneeded real estate held by the city even without an "ordinance" as provided by Title 37, § 477(1). The case involves an agreement for the city to transfer to the state title to the Bankhead Tunnel, with an agreement for the state to lease the tunnel back to the city. It does not appear, however, that the power of the city to grant an option to purchase was an issue in the case. This court cited as authority the statute which appears as § 25(½), Title 23, of the Recompiled Code 1958, which authorizes the state to acquire the rights of way deemed necessary by the highway department for the *133 construction of a state road, either by purchase or condemnation.
The last case cited to support the power of the city to grant an option is O'Rorke v. City of Homewood, 286 Ala. 99, 237 So. 2d 487, wherein this court held that under authority of Act No. 843, the city had authority to exchange certain lands owned by the city for other lands. The appellants contended that the city could not convey the city's land because it ". . . was in fact a park." The factual issue was whether or not the land was in fact a park. The issue was decided against appellants. The question of the power of the city to grant an option to purchase was not an issue.
The language of Section 1 of Act No. 843, supra, appears to have been taken from § 177, Title 12, Code 1940. The predecessor of § 177 first appears as § 765, Code of 1852, as follows:
In the Code of 1867, § 899 is entitled: "§ 899. (765) Court of county commissioners have custody of its property, and may sell." The words "their minutes" were changed to the words, "its minutes." As thus changed, the identical language was carried into the following Codes, to wit: 1876, § 817; 1886, § 888; and 1896, § 1402.
In the Code of 1907, § 130 appears with title and language as follows:
§ 209, Code of 1923, and § 177, Title 12, Code of 1940, contain the identical language which appears in § 130, Code 1907.
In Jackson v. Ball, 211 Ala. 273, 100 So. 327, this court held that, under § 130, Code 1907, a county governing body acting without fraud and in good faith, had authority to lease land of the county which was not needed for county purposes. This court said:
The title of Act No. 843, supra, describes the act as an act ". . . to authorize the governing body of any city or town to alienate municipal property . . ." The body of the act recites that the city governing body may ". . . direct the mayor to make title . . .," and that a conveyance made by the mayor in accordance with the ordinance ". . . invests the grantee with the title . . ."
Granting to another an option to purchase land owned by the city is not an alienation of the land. Such an option is not *134 a disposition of the property. The option is "neither a sale nor an agreement to sell. . ." The owner parts with his right to sell, except to the optionee at his election, for a period. The option is not a contract of sale. Fulenwider v. Rowan, supra.
On consideration of Act No. 843 and the authorities cited and discussed hereinabove, the conclusion seems inescapable that the power granted to the city to direct disposal of the lands in suit and to direct the mayor to make title thereto does not include the power to grant to complainant the option to purchase which complainant seeks to compel the respondents to perform. It follows that the grant of the option was not within the power of the city governing body and the option is not enforceable.
Accordingly, the decree appealed from is reversed and the cause is remanded with directions to enter a decree in accord with this opinion.
Reversed and remanded with directions.
HEFLIN, C. J., and BLOODWORTH, McCALL, and FAULKNER, JJ., concur. | June 28, 1973 |
2a844e68-d9c2-43c2-a970-b4d1479dd24c | Morgan v. City of Tuscaloosa | 108 So. 2d 342 | N/A | Alabama | Alabama Supreme Court | 108 So. 2d 342 (1959)
Robert MORGAN, Jr.
v.
CITY OF TUSCALOOSA.
6 Div. 294.
Supreme Court of Alabama.
January 15, 1959.
*343 LeMaistre, Clement & Gewin and H. Vann Waldrop, Tuscaloosa, for appellant.
S. H. Sprott, E. D. McDuffie and John W. Finnell, Tuscaloosa, for appellee.
STAKELY, Justice.
The question for decision is whether the alleged acts of the City of Tuscaloosa were the proximate or remote cause of the death of the minor son of Robert Morgan, Jr. Robert Morgan, Jr. (appellant) brought this action in the Circuit Court of Tuscaloosa County against the City of Tuscaloosa (appellee), claiming damages for the death of his minor son, Robert Kenneth Morgan, who was struck and killed by an automobile driven by a third party not connected *344 with the defendant on a public street of the City of Tuscaloosa.
In all the plaintiff filed five counts in his complaint. The substance of each count is that the defendant, the City of Tuscaloosa, had negligently constructed a drainage sewer, which was too small or had negligently allowed the drainage sewer to become stopped up, causing water to back up or become impounded on a public street, that the driver of an automobile then being operated on the street ran into the water, causing the water to be splashed or sprayed on his windshield, blinding the driver or obstructing his vision and thereby causing the automobile to strike plaintiff's minor son, who was then and there a pedestrian walking in the street, and caused his death. In each count there is incorporated in the count the claim which was filed prior to the institution of the suit with the City of Tuscaloosa.
The defendant assigned twenty-one grounds of demurrer to the complaint and separately to each count thereof. Demurrers to the complaint and each count thereof were separately and severally sustained and plaintiff was granted a nonsuit with leave to appeal for and on account of the trial court's adverse ruling in sustaining the said demurrers.
As stated in Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696, 61 A.L.R.2d 1346, a demurrer is a single entity and if any ground is good, the demurrer should be sustained.
We think we can simplify the case by coming at once to the proposition on which the appellee rests as sustaining the action of the trial court. In other words, we are assuming without further discussion that a municipal corporation in the exercise of its statutory powers to construct and maintain a system of sewers and drains acts ministerially and damages proximately resulting from negligence in the construction or maintenance of sewers creates a liability for which the city can be held liable. City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353; City of Birmingham v. Norwood, 23 Ala.App. 443, 126 So. 616, certiorari denied 220 Ala. 497, 126 So. 619.
However it is the earnest insistence of counsel for the appellee that the alleged acts of the City of Tuscaloosa in the instant case did no more than merely create the condition or give rise to the occasion of the impounded water in its street and after the condition had been created, an intervening agency produced the injury. In other words, the condition of the street was not the proximate cause of the death of the plaintiff's son but was at best a remote cause. In Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696, 709, 61 A.L.R.2d 1346, this court said:
It is true that the law will consider only the proximate cause and not a remote cause where there are two or more causes of injury. Garrett v. Louisville & N. R. Co., 196 Ala. 52, 71 So. 685; Williams v. Wicker, 235 Ala. 348,179 So. 250; Western Ry. of Alabama v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316; Lancaster v. Johnson, 34 Ala.App. 637, 42 So. 2d 604; Liberty National Life Insurance Co. v. Weldon, supra.
*345 It is also true that where a prior cause merely created the condition or gives rise to the occasion and after the condition has been created an intervening agency produced the injury, the first is not the proximate cause. Morgan-Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Garrett v. Louisville & N. R. Co., 196 Ala. 52, 71 So. 685; Louisville & N. R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1318; Western Railway of Alabama v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316.
When the facts are such that reasonable men must draw the same conclusion, the question of proximate cause is one of law for the courts. City of Birmingham v. Latham, 230 Ala. 601, 162 So. 675; Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474; Kilgore v. Birmingham Ry. Light & Power Co., 200 Ala. 238, 75 So. 996; Crowley v. City of West End, 149 Ala. 613, 43 So. 359, 10 L.R.A.,N.S., 801; Sloss-Sheffield Steel & Iron Co. v. Wilkes, 236 Ala. 173, 181 So. 276; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Garrett v. Louisville & N. R. Co., 196 Ala. 52, 71 So. 685; Western Railway of Alabama v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316.
Our cases also hold that where each count of the complaint shows on its face that some independent agency has intervened and has been the immediate cause of the injury, even though a party is guilty of negligence in the first instance, that party is not responsible and it is the duty of the trial court to sustain a demurrer to the complaint where the complaint and each count thereof shows on its face that an independent agency has intervened and has been the immediate cause of the injury. Kilgore v. Birmingham Ry. Light & Power Co., 200 Ala. 238, 75 So. 996; Smith v. Alabama Water Service Co., 225 Ala. 510, 143 So. 893.
In the case at bar the City of Tuscaloosa is alleged to have negligently constructed or negligently maintained a storm water sewer which caused water to stand in the street. It is our judgment that this condition alleged to have been created by the City of Tuscaloosa should be treated as merely a circumstance of the accident and not as a concurring proximate cause. When the driver of the automobile which struck the son of the appellant proceeded down Tenth Avenue, as alleged in the complaint, he was faced with a condition of the street, namely, water impounded thereon. The act of the driver in approaching the impounded water in the street and negligently driving into the same with such force as to cause the water to splash upon his windshield, obscuring his vision and causing him to run into the decedent, should be considered as the sole proximate cause of decedent's death. Authorities supra.
Upon a careful consideration we have concluded that the alleged acts of the City of Tuscaloosa in failing to build suitable drains or properly maintain the same, was nothing more than a remote cause of the accident. It clearly appears that after the condition had been created, an independent agency produced the injury. We do not consider that it could be known by common experience that the failure to properly construct or maintain a drain, as alleged, would cause water to back up in the street, that a car would run into the water, that the water would splash upon the windshield and blind the driver and thereby cause the driver to lose control of the car and strike a pedestrian then walking in the street or in the water alleged to have been impounded. It is our considered opinion that from the facts alleged in the complaint, reasonable men would conclude that the defect in the drain was not the proximate cause of the death of the appellant's son. Authorities supra.
We call attention to the case of Kilgore v. Birmingham Ry. Light & Power Co., 200 Ala. 238, 75 So. 996, 997, wherein the complaint alleged that the defendant, Birmingham Railway, Light & Power Company, negligently threw a bright headlight on the street, blinding plaintiff, who was a *346 pedestrian, and the driver of a truck who ran into plaintiff and injured her. In holding that there was no causal connection between the use of the headlight and the collision of the truck with the plaintiff, this Court said, "The averments of the count disclose no causal connection between the use of this headlight, on this occasion, and the collision of the jitney bus with the plaintiff."
In the case of Smith v. Alabama Water Service Co., 225 Ala. 510, 143 So. 893, 896, this court said:
We conclude that the court acted correctly in sustaining the demurrer to each count of the complaint.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | January 15, 1959 |
3df7cc39-7411-4d8b-8d87-d4ba54e76db4 | Williams v. State | 279 So. 2d 478 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 478 (1973)
Eunice Juanita WILLIAMS
v.
STATE of Alabama.
SC 354.
Supreme Court of Alabama.
June 21, 1973.
Cameron & Cameron, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Enoch and Eunice Williams, of Greenville, Alabama, had been married, divorced, *479 married again, and had a second divorce, filed by Enoch, pending. On August 30, 1970, Enoch was gunned down as he stood in the driveway of his house. Taken to the hospital, he improved markedly for two or three days, stabilized for three to four weeks, then went downhill for three weeks, with the downturn ending in death.
The night of the shooting, Eunice Williams was arrested, and subsequently was charged with murder when her husband died. She was tried by jury on pleas of not guilty and not guilty by reason of insanity. Much evidence was adduced as to her rage at being divorced and her bitter jealousy of her husband's girl friend. The testimony indicated strongly that she had killed her husband, but there was conflict as to whether she was insane at the time of the crime. The jury returned a verdict of guilty of second-degree murder, and imposed a sentence of twenty years in the penitentiary. Mrs. Williams appealed to the Alabama Court of Criminal Appeals, from whence the cause was transferred to this Court.
Appellant complains of the admission of testimony by Sheriff Henry Stanford as to her sanity. Lay opinion as to sanity, of course, is an exception to the opinion evidence rule. Stanford's testimony was actually of two types legally, that defendant had talked rationally on the occasion of her arrest, and that over a long period of time she was mentally normal and could distinguish right from wrong. The former was admissible without need for a predicate. Hunt v. State, 248 Ala. 217, 27 So. 2d 186 (1946); Deloney v. State, 225 Ala. 65, 142 So. 432 (1932). The latter, a judgment on the ultimate issue of sanity, made by a lay witness, requires a predicate. As was said in Ford v. State, 71 Ala. 385, 397 (1882), the value of such testimony by a lay witness:
In this case, the sheriff stated he had known the defendant for twelve or fifteen years, had business contact with her, served her with many papers. Under the circumstances we cannot say the trial court abused his discretion in permitting the sheriff's lay opinion testimony. Wise v. State, 251 Ala. 660, 38 So. 2d 553 (1948), relied on by appellant, is distinguishable due to very brief acquaintance of the lay witness with the defendant in that case.
As with every rule of law, there is a reason for permitting lay opinion, properly predicated, on the issue of sanity: introduction of a breath of fresh air into the often rarefied atmosphere of conflicting expert psychiatric testimony. To supplement the testimony given by an expert, the opinion of someone who has known the subject over a period of time: "he seemed sane" or "he seemed insane" is most valuable to a jury for their deliberation on the issue of insanity, since this was a question for the jury.
Appellant complains of admission of a statement she made over the phone to her lawyer, overheard by the sheriff, "Well, it's happened." She contends that this was the equivalent of a confession, and that a Miranda warning should have been given.
There is some doubt that the statement "Well, it's happened" is a confession of personal guilt. However, treating it as *480 such, it is clear from the record that a predicate of voluntariness was laid. The sheriff testified, and his testimony was not controverted, that he had not questioned the defendant at that time. She simply spoke into the phone and he overheard.
Mrs. Williams was undoubtedly in custody at the time of the statement. However, as one noted writer puts it:
See Guenther v. State, 282 Ala. 620, 213 So. 2d 679 (1968).
During the trial, one Gene Holder testified that Mrs. Williams, the defendant, had spoken to him on two occasions concerning the crime. On the first occasion, she stated that she was with deceased and he kicked her and "next thing she knew she heard something go bam, bam, bam and she looked down and had a gun in her hand." The second admission to Holder was that "she shot him and that she guessed and hoped that he would die." Appellant complains a predicate of voluntariness was laid for only one of these admissions. This contention is not supported by the record, which shows that the predicate laid covered both admissions.
As Williams lay mortally wounded in his driveway, a neighbor asked "Who done it?" and Williams said "Eunice done it." Appellant objects to admission of this evidence. This was admissible as being part of the res gestae.
For a statement to be admissible as part of the res gestae exception to the hearsay rule, it must be incident to what was done, as shedding light on the main fact. George v. State, 240 Ala. 632, 200 So. 602 (1941); Starks v. State, 137 Ala. 9, 34 So. 687 (1903); Nelson v. State, 130 Ala. 83, 30 So. 728 (1901). See also McLean v. State, 16 Ala. 672 (1849).
Here, deceased replied, "Eunice done it," immediately after being shot. The statement in this case, unlike the statement in Shiflett v. State, 38 Ala.App. 662, 93 So. 2d 523 (1957), cert. denied 265 Ala. 652, 93 So. 2d 526 (1957), was not objectionable as an opinion. The court in Shiflett refused the admission of the response of the deceased made in the hospital, "I don't believe Harold meant to do it," as being an opinion. The statement in this case required no particular reflection or thought. We think that the trial judge could reasonably conclude that the statement was a part of the res gestae.
We discover no error in the record.
Judgment and sentence affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, COLEMAN and HARWOOD, JJ., concur. | June 21, 1973 |
aa65422f-15e6-40ad-b19d-0849bc4d07f6 | Johnson v. Shenandoah Life Insurance Company | 281 So. 2d 636 | N/A | Alabama | Alabama Supreme Court | 281 So. 2d 636 (1973)
Walter E. JOHNSON et al.
v.
SHENANDOAH LIFE INSURANCE COMPANY, a corporation, et al.
INDUSTRIAL FINANCE AND THRIFT, INC., a corporation, et al.
v.
SHENANDOAH LIFE INSURANCE COMPANY, a corporation, et al.
SC 135, 138.
Supreme Court of Alabama.
July 19, 1973.
Rehearing Denied August 30, 1973.
*638 McDermott & Slepian and Braxton L. Kittrell, Jr., Mobile, for appellants.
Louis E. Braswell, Mobile, for appellee Shenandoah Life Ins. Co.
MERRILL, Justice.
This is an appeal from two judgments in cases tried togetherone in which Walter E. Johnson and Glenn Merrill, individuals, were plaintiffs, and the other, Industrial Finance and Thrift, Inc. and Industrial Finance Co., Inc., corporations, were plaintiffs. The defendants in both suits were Shenandoah Life Insurance Co., a corporation, and Hightower and Thompson, individuals. The suits are for fraud (Counts One and Two), breach of contract (Counts Three and Seven) and the recovery of money paid (Counts Four, Five and Six).
The complaints were filed on August 3 and 4, 1970. In addition to the three defendants already listed, other defendants were Transtate Mortgage Service, Inc., Gulf National Mortgage Service Co., Inc., Sid C. Pruett and John Doe. These "other" defendants were stricken by plaintiffs on April 3, 1972, the first day of the trial, because they had never been served. Also, plaintiffs added Count Seven for breach of contract. Defendants Hightower and Thompson had earlier filed appearances but did not appear at the trial. Shenandoah was the only contesting defendant.
Defendant Shenandoah entered a plea of the statute of limitations as to Counts One and Two of both suits. Plaintiff's replication to this plea attempted to invoke the saving provisions of Tit. 7, § 42, Code 1940. Defendant Shenandoah's demurrer to this replication was sustained. The affirmative charge was given in favor of defendant Shenandoah as to all counts of both suits. The jury returned a verdict against defendants Hightower and Thompson in favor of the plaintiff corporations for $34,913.20; the jury returned a verdict in favor of plaintiffs Johnson and Merrill for $24,000.00. This appeal was taken by the plaintiffs and the main argument is that the court erred in giving the affirmative charge in favor of Shenandoah.
In order to capitalize the two corporations, Industrial Finance and Thrift and Industrial Finance Co., that they had organized to carry on the business of consumer finance, the plaintiffs, Johnson and Merrill, contacted defendants, Hightower and Thompson, who were life insurance agents of Shenandoah Life Ins. Co. The four met in the office of Shenandoah, at Huntsville, which was identified by a large sign on top of the building. Johnson and Merrill brought with them a check for $3,000.00, which represented 2% of $150,000.00, the amount they originally intended to borrow. While at this meeting, Hightower introduced Johnson to Pruett, of Transtate Mortgage Service, by telephone and they discussed the loan. This check was made payable to Transtate. Johnson testified that he was told by Hightower that Transtate was a subsidiary of Shenandoah. In fact, Shenandoah had no such relationship with Transtate. Johnson and Merrill were persuaded to seek a loan of $400,000.00 instead of $150,000.00 at this meeting. An additional check for $5,000.00, which represented the balance of 2% of $400,000.00, was mailed to Hightower and *639 Thompson and was also made payable to Transtate.
Johnson testified that he was told that Shenandoah "was going to handle the funding of the money," but Hightower and Thompson did not recall any mention of Shenandoah as the lending agent. Neither Johnson nor Merrill inquired, or were told, whether Hightower and Thompson had the authority to make the loan. There was no authorization from Shenandoah for Hightower and Thompson to make loans. Only the Investment Committee of Shenandoah had the authority to make loans. Moreover, Shenandoah was forbidden by the law of the state of its incorporation (Virginia) to make a loan of the type sought by the plaintiffs.
Hightower and Thompson were interested in placing the loan so they could get the commission on the life insurance policies on the lives of Johnson and Merrill necessary to secure the loan. A check for $939.50 was paid to Shenandoah for such life insurance. This check was later refunded because Johnson and Merrill never accepted the policies.
Johnson and Merrill were required by Hightower and Pruett to put up an additional $20,000.00 as earnest money. Hightower and Thompson each wrote a letter to Johnson saying that upon payment of the additional money he would "personally guarantee a fundable commitment." The check for $20,000.00 was turned over to Pruett by Johnson and was likewise made payable to Transtate.
The mortgage commitment application was between Transtate Mortgage Service and Industrial Finance and Thrift; the name "Shenandoah" did not appear on the document, nor did it appear on the escrow agreement signed by Pruett and Johnson. The loan commitment delivered by Pruett in exchange for the additional money was made by Gulf National Mortgage Co. The standard contract bond, also delivered in exchange for the $20,000.00, was between Gulf National Mortgage and Industrial Finance and Thrift and Industrial Finance Co.
When it was discovered that the commitment was no good, Johnson and Merrill contacted Hightower and Pruett and were told there was some misunderstanding and that a fundable commitment would be issued in a few days. Johnson and Merrill later tried to get their money back after learning the commitment was not good. Johnson testified, "They kept reassuring us all was well." Near the end of June in 1969, Pruett gave Johnson and Merrill a $25,000.00 silver certificate which was found to be worthless. Pruett wrote two checks to the plaintiffs for $20,000.00 and $9,200.00 as a refund of money paid to him; these checks bounced on August 11, 1969.
Those assignments of error dealing with the affirmative charge in favor of Shenandoah as to Counts Four, Five and Six (recovery of money paid) are without merit. There was no proof of money paid to Shenandoah except for insurance premiums which Shenandoah refunded. All other money paid by the plaintiffs was paid to Transtate and there was no evidence to support those counts against the defendant, Shenandoah.
Another group of assignments charge error in the giving of the affirmative charges for Shenandoah as to Counts Three and Seven (the contract counts).
The correctness in giving these charges depends upon the authority of Hightower and Thompson to bind Shenandoah to make the type of loan sought by plaintiffs.
Appellants concede in brief that "there is no evidence in the record that the Defendants Hightower and Thompson had any express or implied authority to bind the Defendant Shenandoah to a contract to secure for the Plaintiffs a fundable loan commitment in the amount of $400,000.00. It is submitted, however, that there was ample evidence to submit to the jury that the Defendants Hightower and Thompson *640 were acting within the scope of their `apparent' or `ostensible' authority at the time they entered into the contract with the Plaintiffs."
In Roberts & Sons v. Williams, 198 Ala. 290, 73 So. 502, this court said:
The following was written in Automotive Acceptance Corporation v. Powell, 45 Ala.App. 596, 234 So.2d 593:
"Apparent authority" is such as a principal knowingly permits an agent to assume or holds him out as possessing. First Trust Joint Stock Land Bank v. Diercks, 222 Iowa 534, 267 N.W. 708. It seems to be generally held that an agent's apparent authority must be based upon the conduct of the principal and not of the agent. 2A C.J.S. Agency § 161; 3 Am.Jur.2d, Agency, § 75.
A general agent has no implied authority to bind his principal by contracts unusual to agencies of like character, or beyond the usual scope of such agencies; and when he attempts to bind his principal by his extraordinary acts, the one dealing with him is put upon notice, and required to ascertain from some authoritative source whether such agent had the power to bind his principal thereby. Johnson v. Shook & Fletcher Supply Co., 245 Ala. 123, 16 So. 2d 406.
A person dealing with a known agent is not authorized under any circumstances blindly to trust the agent's statements as to the extent of his powers. Johnson v. Shook & Fletcher Supply Co., supra.
The burden of proving an agency rests upon the party asserting its existence. City Stores Co. v. Williams, 287 Ala. 385, 252 So. 2d 45; Dixie Auto Ins. Co. v. Steele, 288 Ala. 459, 262 So. 2d 283; Capital Security Co. v. Owen, 196 Ala. 385, 72 So. 8.
"The power (of an agent) to lend or borrow money is not to be inferred without clear evidence of such a grant, and must be either expressly conferred or necessarily implied from the authority granted, or be usually incident to the performance of acts which he is authorized to perform for the principal." 2A C.J.S. Agency § 192.
An agent has no implied or apparent authority to do that which the principal *641 himself would not be authorized to do. Gambill v. Fuqua, 148 Ala. 448, 42 So. 735.
It is undisputed that neither Hightower nor Thompson had any authority to make a loan of this type. It is also undisputed that Shenandoah was forbidden, by the law of the state of its incorporation, to make that type of loan.
The evidence relied on by appellants to establish an apparent agency of Hightower and Thompson is that they were insurance agents of Shenandoah; that Shenandoah furnished them stationery with "Shenandoah Life Insurance Company" printed thereon; that there was correspondence between them and appellants on that stationery; that Hightower and Thompson discussed a loan in Mobile which Shenandoah was allegedly going to make to Colonial Acres Nursing Home; and that appellants first met Hightower and Thompson in a one-story building in Huntsville with the name "Shenandoah Life Insurance Company" on a sign attached to the building.
The only evidence remotely connecting Shenandoah with loans was (1) Hightower's testimony that he once submitted an application to Shenandoah for a loan on a hospital, but that the loan did not go through; and (2) the testimony of witness Mills in reference to a loan to Colonial Nursing Home wherein he testified that Hightower said that "they had plenty of money for financing for nursing homes; they had financed apartment houses, shopping centers, etc."
It is undisputed that appellants made no inquiry into the authority of Hightower and Thompson to make the loan. When asked whether he had made any inquiries into the authority of the two insurance agents, Johnson replied, "Well, I didn't ask them did they. I just assumed that they, you know, were employed by them and accepted the moneythat they had the authority." Likewise, Merrill made no inquiries into the authority to make such a loan and merely assumed that it existed. Furthermore, the evidence showed that only the Investment Committee of Shenandoah could make loans. There was no authorization in the contracts of Hightower and Thompson with Shenandoah to make loans.
It is also undisputed that Shenandoah made only two types of loans, (1) policy loans against the cash surrender value of the policy; and (2) loans secured by a mortgage or deed of trust constituting a first lien on improved real estate.
Under the authorities cited, it is obvious that the trial court was correct in giving the affirmative charge as to Counts Three and Seven. There is no evidence in this record tending to show that Hightower or Thompson had any authority to lend or contract to lend Shenandoah's money (except on policy loans), nor is there any testimony showing that it was customary or usual in the insurance business for agents to lend money for their insurance companies. As already shown, representations of the agent cannot be the basis for a finding of apparent authority. Apparent authority must be traceable to the principal. We can find no evidence in the record of any acts on the part of Shenandoah that gave any appearance of authority to the agents to lend money or to promise funds to start a business. Appellants concede that they never inquired as to the authority of Hightower or Thompson even when they were paying their money to Transtate and not to Shenandoah. And finally, the agents could not do what the law forbade their principal to do.
Moreover, Shenandoah would not be liable under the dual agency theory. If Hightower and Thompson could obtain the loan for appellants, they would make good commissions on the life insurance policies required of the borrowers. We paraphrase what is written in Thigpen v. Arant, 213 Ala. 516, 105 So. 644[3], where the agent (Crumpton) of the principal (Thigpen) was seeking to get a loan for one Moye. In the matter of trying to get a loan for *642 appellants from Transtate, it would seem that Hightower's and Thompson's first duty was to appellants because appellants were seeking a loan from anyone and were looking to Hightower and Thompson to obtain it, and the failure of Hightower and Thompson to perform should not be visited upon Shenandoah, which knew nothing of the matter. See Florence v. Carr, 226 Ala. 654, 148 So. 148[4].
Finally, we consider the assignments charging error in giving the affirmative charge in favor of Shenandoah as to Counts One and Two (the fraud counts), and the sustaining of Shenandoah's demurrer to appellants' replication to Plea Two, which was that the fraud counts were barred by the statute of limitations of one year.
The suit was filed in Mobile County on August 3, 1970. Counts One and Two allege that the fraud occurred in January, 1969. The replication alleged that in March, 1969, plaintiffs "learned that the commitment submitted to them * * * was not a fundable commitment" and that plaintiffs "immediately took steps to inquire of the Defendants, jointly and severally, as to the reason or reasons why said commitment was not a fundable one. * * *"
The fraud alleged is that the commitment was not fundable, and appellants admit in the replication that they learned this in March, 1969, sixteen months before the suit was filed. The replication fails to allege how the facts of fraud were discovered; and it also fails to allege when they were discovered.
Appellants concede in brief that they rely on Tit. 7, § 42, Code 1940, to remove the bar of the statute of limitations. It provides:
In Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286, where a replication to a plea of the one-year statute of limitations was demurred to, this court quoted with approval from Gordon v. Ross, 63 Ala. 363, as follows:
This court also said:
In Fletcher v. First National Bank of Opelika, 244 Ala. 98, 11 So. 2d 854, the statute of limitations was raised as a defense, and after quoting Tit. 7, § 42, the court traced the history of the law both prior and subsequent to the statute and quotes, in part, from Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 94 So. 606, as follows:
Fraud is deemed to have been discovered when it ought to have been discovered. Facts which provoke inquiry in the mind of a man of reasonable prudence, and which, if followed up, would have led to a discovery of the fraud, constitute sufficient evidence of discovery. Butler v. Guaranty Savings & Loan Ass'n, 251 Ala. 449, 37 So. 2d 638, and cases there cited. Many of these principles are stated in State Security Life Ins. Co. v. Henson, 288 Ala. 497, 262 So. 2d 745.
Here, the replication failed (1) to aver with precision the facts and circumstances which allegedly were not discovered and to which appellants allegedly were defrauded, (2) to aver how or when these facts were discovered, (3) to aver what prevented these facts from being discovered before the bar of the statute became complete and (4) failed to aver facts acquitting appellants of all knowledge of facts which ought to have put them on inquiry.
The trial court did not err in sustaining Shenandoah's demurrer to appellants' replication.
There was no evidence to show any fraud or any notice of fraud on the part of the defendant, Shenandoah.
The verdicts and judgments against Hightower and Thompson are not disturbed, and the same is true of the verdicts and judgments in favor of the defendant, Shenandoah Life Insurance Company.
Affirmed.
HEFLIN, C. J., and HARWOOD, MADDOX and McCALL, JJ., concur. | July 19, 1973 |
d1359856-aa46-4f8b-b706-6c00b1d1b9fb | Core v. State | 280 So. 2d 797 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 797 (1973)
In re Charlie Will CORE
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 432.
Supreme Court of Alabama.
July 19, 1973.
William J. Baxley, Atty. Gen. and Don C. Dickert, Asst. Atty. Gen., for the State.
No Brief for respondent.
HARWOOD, 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 Core v. State, 50 Ala.App. 533, 280 So. 2d 794.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and McCALL, JJ., concur. | July 19, 1973 |
5c925005-9b2c-41e3-a5c1-f07a24ad0a81 | Moffett v. State | 281 So. 2d 630 | N/A | Alabama | Alabama Supreme Court | 281 So. 2d 630 (1973)
Herman Lee MOFFETT
v.
STATE of Alabama.
S.C. 351.
Supreme Court of Alabama.
June 21, 1973.
Rehearing Denied August 30, 1973.
Gibbons, Stokes & Clark, Mobile, for appellant.
William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Sp. Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Herman Lee Moffett appeals from a conviction by a jury in the Circuit Court of Mobile County, of the offense of rape. His punishment was fixed at ten years in the State penitentiary. Moffett alleges two errors. He alleges first, that it was error for the trial judge to allow him to be brought into open court before the jury, handcuffed to a deputy sheriff. Second, he alleges error for the introduction into evidence over his objection a pistol and articles of his clothing. The pistol was taken from Moffett's bedroom by police officers when he was arrested at his home in Mobile County. The clothes were worn by him when he was taken away by the officers.
On the evening of January 22, 1971, at 9:30 P.M., the prosecutrix, a white female, went to the Capri Club on Halls Mill Road, Mobile, Alabama, a place where imbibing is sanctioned. There she ordered a Tom Collins. It was a long drink as it appears she had only the one during the evening. She visited and talked with friends until past midnight. She left the club for home, alone in her two-door 1963 Buick, with "bucket" seats, and headed toward Chickasaw. As she was driving down *631 Halls Mill Road, a motor vehicle came up behind her and began to blink its lights from low beam to high beam. She turned into McVay Drive after stopping at a traffic signal. She was still followed by the vehicle. The blinking of the lights continued. She stopped at another traffic light, and a man yelled to her that sparks were flying beneath her car. She thanked him and drove on to Mobile Dodge. She stopped her car, left the motor running, got out, and looked under it. The defendant pulled his vehicle behind her. She told him that she did not see any sparks. He said that there were, and if the sparks got to her gas tank, the car would catch fire and burn. She told him she would try to make it home. He said that he would follow her "`a little piece on down the road, and if it keeps on doing it, I'll brighten and dim my lights again, and let you know * * *.'" She drove off and got on the Beltline. When he had driven a short distance, he began to blink his lights again. She stopped her car again. The defendant parked his panel truck behind her car. They were close to Treadwell Ford. He said the sparks were still flying and advised her to go to a good mechanic that he knew. She said she might do that or might just go on home. When she prepared to drive off, he opened her car door and stuck a gun in her chest. She fought him for a few minutes; he told her to "shut up" or "he would blow my goddamn brains out." She tried to get out of the car and began blowing the horn. Moffett struck her on the head and hand with the gun. She bled from the wounds. Moffett drove her car to a garage. The prosecutrix was forced to undress, and Moffett raped her on the back seat. After the rape he drove back to his parked vehicle. On the way Moffett threatened to kill the prosecutrix if she called the police.
When Moffett drove away in the panel truck, the prosecutrix drove to a friend's house and stated that she had been raped. She was in a highly emotional state of mind. There was blood on her face and clothes. Her friend called the police. She was taken to Mobile General Hospital, and was released the following day.
Detective Jack Bishop accompanied by other officers made the investigation. They went to Moffett's house and knocked on the door. Moffett came to the door. The officers admitted themselves and informed Moffett that he was under arrest for rape. Moffett requested that he be permitted to dress and went to his bedroom followed by Detective Bishop. As Moffett was dressing, Bishop looked at the head of the bed and next to a pillow was a chrome-plated pistol. He picked up the pistol. Moffett was taken to the police station and advised of his rights. He was allowed to call his father. Moffett told his father over the telephone that he was under arrest for raping a white woman. No one had told Moffett that he was arrested for raping a white woman.
There were no warrants of any kind.
When Moffett came into court for his trial, he was handcuffed to a deputy sheriff. Moffett was seated at his counsel's table and the handcuffs were removed. He alleged that he was prejudiced by being brought into court in handcuffs and moved to strike the present venire and have another venire brought in. The motion was made outside the presence of the jury. The court denied the motion.
We are not persuaded that there is reversible error because the defendant was brought into the courtroom handcuffed *632 to a deputy sheriff. The handcuffs were immediately removed from him after he was brought into the courtroom during the trial. Edwards v. State, 279 Ala. 371, 185 So. 2d 393 (1966). A sheriff who is charged with the responsibility of safely keeping an accused has the right in his discretion to handcuff him when he is bringing him to and from the courtroom, when the handcuffs are removed immediately after he is taken into the courtroom. Smith v. State, 247 Ala. 354, 24 So. 2d 546 (1946); Faire v. State, 58 Ala. 74 (1877). The record shows that defendant was in jail at the time of his trial.
The next alleged error involved admission into evidence the chrome-plated pistol seized by officers while in defendant's home. Notwithstanding the fact that it was seized without a valid warrant, we are of the opinion that it was legally seized under the "plain view" doctrine. This doctrine has come under the scrutiny of the United States Supreme Court. The officer made the arrest of this defendant without a warrant. Title 15, § 154, Code of Alabama 1940, Recompiled 1958.[1] He had a lawful right to be where he was at the time of the arrest. Consequently, the pistol being in plain view of the officer, was subject to seizure and could be introduced into evidence. Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Observing the pistol was not a search. Williams v. State, 43 Ala.App. 343, 190 So. 2d 556 (1966); Reese v. State, 49 Ala.App. 167, 269 So. 2d 622 (1972).
Finally, it was not error to admit articles of defendant's clothing into evidence. These were the articles of clothing with which defendant dressed when he was arrested. Hubbard v. State, 283 Ala. 183, 215 So. 2d 261 (1968).
We have searched the record and find no error.
Affirmed.
HEFLIN, C. J., and MERRILL, COLEMAN and HARWOOD, JJ., concur.
[1] § 154. Arrest by officer without warrant; when and for what allowed. An officer may also arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence; or when a felony has been committed, though not in his presence, by the person arrested, on when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony. | June 21, 1973 |
2ff439c7-94dd-4a85-9e63-b9162dda617d | Chrysler Corporation v. Hassell | 280 So. 2d 102 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 102 (1973)
CHRYSLER CORPORATION et al.
v.
Joe W. HASSELL.
SC 64.
Supreme Court of Alabama.
July 5, 1973.
Lange, Simpson, Robinson & Somerville, Birmingham, and Dixon, Wooten, Boyett & McCrary, Talladega, for appellant Chrysler Corp.
Gaines & Hereford, Talladega, for appellant Jim Preuitt, Chrysler-Plymouth, Inc.
Love, Love & Caldwell, Talladega, for appellee.
MERRILL, Justice.
This appeal is from a judgment against Chrysler Corporation, the manufacturer, and Jim Preuitt Chrysler-Plymouth, the dealer, in a transaction involving the sale *103 of a new Chrysler Newport to appellee on January 5, 1970.
On January 7, appellee notified the dealer that the engine in the new car would not start. The weather at that time was some six to ten degrees above zero. The dealer furnished an almost new Dodge automobile for appellee to use until the Chrysler could be brought in for adjustments and repairs. On January 11, before the new car had been brought in for checking, appellee managed to get it started and drove it to Childersburg, where it caught on fire and was extensively damaged.
Appellee asked the dealer to replace the car under the warranty and the dealer told him that he should contact his fire insurance carrier because the warranty did "not apply to a vehicle involved in an accident, fire or similar incident." These quoted words were not in the warranty delivered with the new car, but were in a "Warranty Policy and Procedure Manual" which Chrysler Corporation distributed to its dealers. The warranty was silent on the subject of fire.
Appellee refused to try to collect from the fire insurance company which had insured his automobile, and informed the dealer that he was going to sue.
The original complaint was filed on March 20, 1970, charging that the defendants, Chrysler Corporation and the dealer, negligently allowed him to ride in an automobile which was imminently dangerous and that as a proximate consequence he received personal injuries. Later, Count Two was added charging that defendants falsely represented that the automobile was in A-1 condition when it was not, and that the defendants had breached a warranty to repair or replace.
Defendants' demurrers to these two counts were sustained; Count Three was added and demurrers were again sustained. Count Four was added but Count Four-A was the only count on which the case was tried and submitted to the jury.
Counsel for appellee states in brief and stated to the jury that this was a case of fraud, framed under Tit. 7, § 108, and it was not a contract action but a tort action. Tit. 7, § 108, provides:
Count Four-A is rather lengthly but we quote it because of the argument that the demurrers should have been sustained on the grounds that it contained two distinct causes of action in a single count, and that the complaint contained a misjoinder of an action ex delicto and an action ex contractu. We have emphasized certain portions of Court Four-A:
The first emphasized portion of Count Four-A alleges a distinct cause of action based upon the misrepresentation by defendants that the automobile was in A-1 condition. This cause of action, a tort, accrued when plaintiff discovered that the automobile was not in the condition as represented to him.
The second emphasized portion of the first paragraph of Count Four-A alleges another distinct cause of actionthat defendants made a warranty to repair or replace the automobile when they knew that in the event of fire that they would not replace it, but leave the plaintiff to collect from the insurer against fire. This second cause of action could accrue only when and if a fire occurred.
There would be separate defenses to the two causes of action. No knowledge on the part of defendants would be a defense to the misrepresentation of the automobile's condition charged in the first cause of action. But knowledge would be no defense to the second cause of action because it was alleged that the defendants had no intention of honoring the warranty in case of fire.
The final emphasized portion of Count Four-A at the conclusion of the last paragraph charges on breach of warranty, an action ex contractu.
"Our rule of pleading does not sanction uniting two separate and distinct tort actions in the same count," and such a count is demurrable for duplicity of causes of action in the same count. Clikos v. Long, 231 Ala. 424, 165 So. 394, and cases there cited.
Distinct causes of action growing out of the same transaction may be united in different counts of the complaint, but not in the same count. Tit. 7, §§ 219, 220; Sovereign Camp, W. O. W. v. Carrell, 218 Ala. 613, 119 So. 640; Sloss-Sheffield Steel & Iron Co. v. Payne, 192 Ala. 69, 68 So. 359; Southern Railway Co. v. McIntyre, 152 Ala. 223, 44 So. 624. We have *105 shown where there is more than one distinct cause of action alleged in Count Four-A.
The joining of an action ex delicto (here, fraud and misrepresentation) and one ex contractu (on the warranty) in one count is not permitted "even under our liberal statutory rule permitting all actions ex delicto to be joined in the same suit with actions ex contractu arising out of the same transaction or relating to the same subject matter." Tit. 7, § 220, Code 1940; Jones v. Americar, Inc., 283 Ala. 638, 219 So. 2d 893; Roll v. Dockery, 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473.
The demurrers of defendants raised these questions and the trial court erred in overruling the demurrers to Count Four-A.
The trial court instructed the jury that if the issues were found in favor of the plaintiff the form of the verdict would be: "We the jury find the issues in favor of the plaintiff and assess his damages at $______." Defendant Preuitt excepted, stating that the jury "could render against one defendant and for the other defendant or against both, but not necessarily against both defendants." The trial court did not change the form of the verdict.
Title 7, § 139, Code 1940, provides:
In Lovelace v. Miller, 150 Ala. 422, 43 So. 734, this court quoted the following from earlier cases:
Injury arising from the concurring negligence of joint tort-feasors, whether they act together or independently, may be redressed by joint or several action. Butler v. Olshan, 280 Ala. 181, 191 So. 2d 7; Chambers v. Cox, 222 Ala. 1, 130 So. 416.
Appellant Preuitt argues that the jury was never given an opportunity, if they found for plaintiff, to return a verdict against Chrysler only or against Preuitt only; but the form of the verdict automatically was against both even if the jury found only one of them liable.
Appellee answers in brief that Tit. 7, § 139, is the general rule but "there is an exception to this general rule which arises when the duty on the part of the defendants to act arises out of a contract where both defendants are parties to the contract." He quotes the following from Jim Walter Corp. v. Gilbert, 47 Ala.App. 376, 255 So. 2d 46, "* * * A joint cause of action was charged in the complaint. A joint cause of action was required to be proved. The defendants were jointly liable or not at all. A judgment could not be rendered against one and not the other." Appellee concludes this section of the brief as follows: "We respectfully submit that since this is a tort wherein the duty to act arose from a contract, it represents an exception to the general rule under the authority of the cases above outlined."
Once again, we have the confusion of actions ex delicto and ex contractu in a single count. The plaintiff says this is a tort action. The trial court charged the jury that it was a tort action. Both stated that it was based on Tit. 7, § 108. But it actually turns on whether there was a breach of the warranty given to appellee when he purchased his new car. The inclusion of an action on tort and an action on contract in the same count is confusing and we do not attempt to decide which rule as to the form of verdict should have been *106 followed under the improper Count Four-A.
We do point out a few failures in the proof. We find no proof in the record of the allegations (1) that either of the defendants "knew or had reason to know that the automobile was particularly susceptible to loss by reason of fire"; (2) that Chrysler represented to plaintiff that "the said automobile was in A-1 condition" or that Chrysler "knew said automobile was not in A-1 condition at the time they sold it to plaintiff" (Preuitt, not Chrysler, sold the car to plaintiff for cash), and there was no evidence that either Chrysler, Preuitt or Preuitt's salesman knew of any defect in the car "at the time they sold it to plaintiff" and there is no proof of the allegation that "defendants refused to repair * * * the automobile."
The representation that the "automobile was in A-1 condition" was not in the warranty but was descriptive of the language of Preuitt's salesman to appellee prior to the sale. The salesman was the only person at Preuitts with whom appellee had dealings prior to the consummation of the sale. The term "A-1 condition" was not in the warranty.
Thus, the proof of misrepresentations was based upon an oral statement of the salesman, over whom Chrysler had no control, and Chrysler's warranty, of which appellee agreed he had only read the first few lines.
In view of these failures of proof and variances between the allegations and proof, the trial court erred in failing to give the requested affirmative charges requested by each of the defendants.
During closing argument, counsel for appellee stated to the jury:
Here, an objection was overruled and exception noted:
This argument was improper, highly prejudicial and was not relevant to any issues in the case. A corporation is entitled to fair and equal treatment if it is a party to litigation. In Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 1 So. 202, this court, per Stone, C. J., held that a reference to the defendant as "this soulless corporation" in concluding argument of counsel was "objectionable, and the court erred in not arresting that line of argument, when thereto requested."
The language of Gardner, C. J., in F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534, is applicable here:
A corporation in its relations to the public is represented and can act only through its duly authorized servants, agents or employees. Alabama Music Co. v. Nelson, 282 Ala. 517, 213 So. 2d 250; United States Fire Ins. Co. v. Hodges, 275 Ala. 243, 154 So. 2d 3. It is axiomatic that any act of commission or omission by a corporation is performed by human beings.
Our discussion of the point of argument of counsel is designed for guidance in the event of another trial.
Appellee's motions to strike the briefs of each of the appellants for non-compliance with Supreme Court Rule 9 are overruled.
Reversed and remanded.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | July 5, 1973 |
c85fb173-2861-4eeb-8ced-d26ef3ae1c01 | Magnusson v. Swan | 279 So. 2d 422 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 422 (1973)
Joe Ed MAGNUSSON
v.
Clinton D. SWAN.
SC 108.
Supreme Court of Alabama.
June 7, 1973.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellant.
Hare, Wynn, Newell & Newton, Birmingham, for appellee.
FAULKNER, Justice.
Clinton David Swan, a United States Air Force colonel, brought an action for the wrongful death of his daughter, Susan Swan, age 18 years, under Title 7, § 119, Code of Alabama 1940, Recompiled 1958. At the time of her death Susan was a student at the University of Tennessee. The suit was filed in the Circuit Court of Jefferson County and was tried before a jury. At the conclusion of the trial, the jury returned a verdict in favor of Swan and against Joe Ed Magnusson in the amount of $50,000. Judgment by the court in accordance with the jury verdict was duly entered. Magnusson filed a motion for new trial which was overruled by the trial court. He appeals to this Court to set aside the jury verdict and judgment of the trial court. Magnusson argues three alleged errors which, in substance are improper remarks by counsel for Swan to the jury in his opening and closing statements, and overruling the motion for new trial. The only ground in the motion argued was alleged excessive damages.
The facts adduced at the trial reveal that on January 20, 1968, Joe Ed Magnusson, a *423 practicing dentist with offices in Huntsville, Alabama, picked up his girl friend, Miss Stutts, around noon. The record does not state where he picked her up. Subsequently, they drove to Lloyd's Restaurant located south of Mountain Brook on U. S. Highway 280 in Shelty County. There the two of them dined. After dinner Magnusson and Miss Stutts drove north on U. S. 280 towards Birmingham and approached the expressway in the vicinity of Mountain Brook. He exited the expressway and drove to a grocery store in Mountain Brook Village. When he returned to the expressway and made an entrance thereon, he discovered he was southbound. He wanted to go north to Birmingham. He did not know where he had made the wrong entrance to the expressway. He slowed his speed and began to seek a place to make a left turn across the median to return to the northbound traffic lanes. The place he selected was not a designated cross-over. It was a short distance north of an intersection providing for interchange of traffic. The time now was approximately 6:00 P.M. It was dark. The road was dry. Magnusson, now in the left lane of southbound expressway traffic, said he gave a left turn signal, slowed down and was in the process of turning left when he was struck from the rear by a southbound vehicle. In that collision young Susan Swan suffered severe bodily injuries from which she died on January 21, 1968.
Susan was visiting with friends in Birmingham. At the time of the accident she was a passenger in an automobile driven by Stephen C. Puckett. She was sitting on the rear seat, on the left side, when the two automobiles collided. Puckett had entered the expressway from Hollywood Blvd., headed south. As he proceeded to the bottom of the entrance ramp to the expressway, there was a small car ahead of him. He pulled around the car and entered the left traffic lane. His car reached a speed of 50 to 55 miles per hour. The expressway speed limit is 55 miles per hour. He saw the Magnusson car in his lane of traffic when he was 50 to 75 feet from it. He applied his brakes, which held, and attempted to drive to the right of the Magnusson car. His car skidded and collided with the rear end of the Magnusson car. The point of impact on his car was the left side where Susan was sitting. At the time of the impact Puckett estimated his speed at about 25 miles per hour. The length of skid marks leading to the point of impact was estimated to be 50 feet.
The first alleged error in this case arises out of remarks by Swan's counsel in his opening statement to the jury:
The trial court having sustained the defendant's objection and having instructed the jury to "rub it out from your minds and do not consider it in the slightest", the question is whether the statement by plaintiff's counsel was of such a character *424 that any harmful effect was ineradicable. We are of the opinion that the prompt action of the trial judge in instructing the jury to disregard it eradicated any harmful effect of the counsel's statement. American Rubber Corp. v. Jolley, 260 Ala. 600, 72 So. 2d 102 (1954); Smith v. Reed, 252 Ala. 107, 39 So. 2d 653 (1949). On appeal to this court we should be fully convinced that the statement of counsel is of such a highly prejudicial character that prompt and repressive measures by the trial judge will not eradicate any harmful effect such statement may be said to produce. From a careful reading of this record we are not so convinced. Alabama Great Southern R. Co. v. Swain, 248 Ala. 535, 28 So. 2d 714 (1947), and cases cited therein; Louisville & Nashville R. Co. v. Sullivan, 244 Ala. 485, 13 So. 2d 877 (1943).
The appellant next alleges error in that counsel for plaintiff argued compensatory damages in his closing argument to the jury;
No grounds were stated for the objection. We are being most liberal by treating the objection as being an argument for compensatory damages in a wrongful death action which he could not make. Hardin v. Sellers, 270 Ala. 156, 117 So. 2d 383 (1960). Counsel for the plaintiff hastened to add that any damages were punitive. The trial court in his oral charge to the jury correctly stated the element of damages in this case:
The court left no doubt as to the character of the damages. Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298 (1936). We are also of the opinion that the court's oral charge on punitive damages eradicated any prejudice from the alleged improper argument in the following statements by plaintiff's counsel in his closing argument:
*425 "(3) "Now, in America and in our Western culture, the sacredness of life probably is held above all else. We don't sacrifice people like they do in Viet Nam, say, for example. You take a little child, and you nurture it, and you raise it and look out for it."
The final alleged error argued by appellant was that the verdict and judgment of $50,000 damages was excessive. Damages recoverable for the death of a minor child under Title 7, § 119, Code of Alabama 1940, Recompiled 1958, are entirely punitive and are based on the culpability of the defendant and the enormity of the wrong, and imposed for the preservation of human life. Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So. 2d 33 (1971); Mobile Light & R. Co. v. Nicholas, supra.
While juries, in the assessment of punitive damages are given a discretion in determining the amount of the damages, this discretion is not an unbridled or arbitrary one, but a legal, sound, and honest discretion. Due regard should be had to the necessity of preventing similar wrongs. Briefly, the punishment by way of damages is intended not only to punish the wrongdoer, but also, to deter others similarly minded. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696, 61 A.L.R.2d 1346 (1958); Adkison v. Adkison, 46 Ala.App. 191, 239 So. 2d 555 (1970).
This court cannot say that the jury was not justified in concluding that slowing down and making a left turn off an expressway during the hours of darkness at a place where there is no designated cross-over was an enormous wrong and was a culpable act on the part of the defendant and was in violation of Title 36, § 58(2) and § 58(10), Code of Alabama 1940, Recompiled 1958.[1] Expressways are designed for fast travel. Exits from and entrances to expressways are designed and placed for safety of the motorist and free flow of traffic. Exiting therefrom should be done at designated places not only for the safety of the exiting motorists but also for other motorists as well.
There is nothing in the record tending to show the verdict excessive. This Court should not capriciously set aside a jury verdict without a valid or legal reason. The trial judge saw and heard *426 the witnesses, and declined to set aside the verdict or to suggest a reduction thereof, as he might have done. Mobile Electric Co. v. Fritz, 200 Ala. 692, 77 So. 235. No valid or legal reasons are shown in the record why this Court should usurp the verdict of the jury and the judgment of the trial judge and hold the damages excessive.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur.
[1] "§ 58(2). Minimum speed regulation; establishment of minimum speed limit. No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.
"Police are hereby authorized to enforce this provision by direction to drivers, and in the event of refusal or failure to obey this provision after such direction, the continued slow operation by a driver shall be a misdemeanor.
"Whenever the director of public safety and the highway director, with the approval of the governor, shall determine upon the bases of engineering and traffic investigation that a minimum prima facie speed limit is desirable, they may declare a reasonable and safe prima facie minimum speed limit which shall be effective at all times or during such times as may be determined when appropriate signs giving notice thereof are erected at sufficient intervals as to inform the public, and when posted it shall not be necessary for a police officer to direct a driver to increase his speed, as a prerequisite to arresting such driver. * * *
"§ 58(10). Driving on divided highways.Whenever any highway has been divided into two roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway and no vehicle shall be driven over, across, or within any such dividing space, barrier, or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection established by public authority. * * *" | June 7, 1973 |
a7ed1de7-fc66-4ba9-ae6b-2a5d6771cadb | McNair v. State | 280 So. 2d 177 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 177 (1973)
In re Danzler McNAIR, Jr.
v.
STATE.
Ex parte Danzler McNair, Jr., alias.
SC 446.
Supreme Court of Alabama.
July 5, 1973.
Jerry L. Cruse, Montgomery, for petitioner.
No brief for the State.
HARWOOD, Justice.
Petition of Danzler McNair, Jr., for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McNair v. State, 50 Ala.App. 465, 280 So. 2d 171 (3 Div. 159).
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | July 5, 1973 |
8424f30f-4cf0-40be-a46a-e979fbe3f332 | General Telephone Company of Alabama v. Cornish | 280 So. 2d 541 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 541 (1973)
GENERAL TELEPHONE COMPANY OF ALABAMA, a corporation,
v.
Lucy R. CORNISH, Administratrix of the Estate of Ina Lucille Riley, Deceased.
S.C. 199.
Supreme Court of Alabama.
July 5, 1973.
Rehearing Denied August 2, 1973.
*542 A. A. Smith, Hartford, Alto V. Lee, III, Dothan, for appellant.
Truman Hobbs and Albert W. Copeland, Montgomery, James W. Kelly, Geneva, for appellee.
HARWOOD, Justice.
This was an action for wrongful death filed by Lucy Cornish, as administratrix of the estate of Ina Lucille Riley, against General Telephone Company, in the Circuit Court of Geneva County, Alabama.
The complaint consisted of one count charging that the defendants, General Telephone Company and X Corporation, a fictitious defendant, were guilty of negligence in the erection, maintenance and installation of telephone service so as to permit the passage of lightning through the telephone system into the home of plaintiff's intestate, who was killed as a proximate result of such negligence.
Evidence shows that the decedent, Mrs. Riley, was talking on the telephone in her home a few miles from Hartford, Alabama, at about 8:00 P.M., on the evening of June 17, 1968. Within a few minutes of the beginning of her conversation on the telephone, lightning struck a tree approximately 170 feet from her home. The path of the lightning could be traced by the peeling of the bark down the tree and out a limb which was in close proximity to the telephone wire serving the Riley home. When the lightning struck, Mrs. Riley's husband was in the kitchen. Upon hearing the noise from the lightning, he hurried into the room where Mrs. Riley had been using the phone and found her lying on the floor dead, with the telephone receiver hanging from the phone.
*543 Mrs. Riley had been talking with her sister in Donifay, Florida who testified that she heard an explosion and the telephone went dead.
Testimony was given to the effect that the deceased was sixty-nine years of age, active, and in general good health.
The plaintiff's evidence was directed toward establishing the negligence of the defendant telephone company by showing that the grounding system for the telephone in the Riley home was improperly installed by the defendant, and was unsafe.
As a witness for the plaintiff, Bud Hagler, an employee of the defendant, who was charged with the responsibility of installing and maintaining the telephone in the Riley home, testified that the grounding was improper and violated company instructions as to proper grounding. These instructions were given at the company school for installation and maintenance trainees and were similar to the provisions of the National Electrical Code which required a multiple ground. A multiple ground was defined as one which is connected to the water and electrical systems of the home serviced as well as to a metal rod driven in the ground. The witness stated that the requirement of a multiple grounding was to reduce the possibility of lightning injuring anyone using the telephone. It would take one man about one hour to install a proper ground.
Further testimony was given by another company employee, called by the plaintiff, that the cost of installing a proper ground would be approximately ten to fifteen dollars.
As to the condition of the telephone over which Mrs. Riley was speaking, there was evidence that it was replaced shortly following her death due to a short circuit and a tear in the membrane within the receiver. The evidence also showed that the phone service in the area was disrupted for some time during the evening of Mrs. Riley's death.
Two witnesses for the plaintiff, who qualified as experts in the field of electricity, testified that they had individually administered tests to the telephone ground system in the Riley home. Both witnesses stated that they found the resistance of the telephone ground insufficient based on the requirements given in the National Electrical Code.
In defense, the defendant presented testimony of a witness who had conducted a similar test and achieved a different result. This witness also stated that certain synthetic fibers within the telephone receiver were undamaged in his opinion.
Defendant also presented testimony to the effect that the telephone lines were strung on REA electrical poles and that these poles were properly grounded.
The District Attorney of Geneva County testified on behalf of the defendant and stated that the report he received from Dr. Rehling, State Toxicologist, on the autopsy of Mrs. Riley, stated that she died of natural causes and that he had received no further communication from Dr. Rehling advancing a different theory.
At the close of the evidence the jury returned a verdict for the plaintiff and assessed damages at $150,000.00, and judgment was entered pursuant to this verdict.
Defendant's motion for a new trial being denied an appeal was perfected to this court from both the judgment and the order denying the motion for a new trial.
Appellant's assignment of error No. 1 asserts as error the refusal of the court to give the general affirmative charge requested in writing by defendant. In support of this assignment, defendant argues that the complaint named as defendants "General Telephone Company of Alabama, a Corporation, and X Corporation, a fictitious defendant, whose name is otherwise unknown to plaintiff but which will be substituted by amendment when discovered," and notwithstanding this averment *544 the plaintiff failed to amend her complaint so as to strike X Corporation.
In Roberts Construction Co. v. Henry, 265 Ala. 608, 93 So. 2d 498, there were multiple defendants and a verdict was returned against a sole defendant. This court wrote:
"There was no improper joinder of Count one as amended under allegations that the plaintiff was injured by the negligence of the defendants. There is no doubt that where several defendants are joined in an action, the plaintiff is entitled to go to the jury as to that defendant against whom he has made out his case, although a directed verdict may be ordered as to the others. § 139, Title 7, Code of 1940."
In Lovelace v. Miller, 150 Ala. 422, 43 So. 734, this court stated:
"* * * Going back to Chitty on Pleading, we find the law stated in the following language: `* * * Where in point of fact and of law several persons might have been guilty of the same offense, the joinder of more persons than were liable, in a personal or mixed action in form ex delicto, constitutes no objection to a partial recovery and one of them may be acquitted, and a verdict taken against the others.' * * * `In actions ex delicto a joint liability need not be proved, and consequently a misjoinder of defendants will not defeat a recovery against any or either proved guilty.'"
In Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293, this court said:
"It is a well-settled rule of law that in actions of tort against two or more defendants jointly, where the proof fails as to any one, a verdict may be rendered against the other or others as to whom the proof is sufficient without thereby in law constituting a variance."
At 53 Am.Jur., Trial, Sec. 1040, it is set forth:
"* * * But if in a suit against more than one defendant some defendants are not served, and have not otherwise made themselves subject to the jurisdiction of the court, as by entering a voluntary appearance, or have been dismissed during trial, or if it is apparent from the issues made by the pleadings that a recovery is not sought against all the defendants, a verdict `for plaintiff' will not be construed as one against the defendants who are not before the court or against whom no recovery is sought."
In an annotation to be found in 47 A.L. R.2d 800, at 810, is the following statement:
"The holdings of the courts are based on two lines of reasoning used either singly or combined. One line of reasoning is to the effect that the verdict is unambiguous and clearly shows that it was meant to apply only to those defendants who were properly before the court, while the other line of reasoning refers to the lack of standing of the defendant or defendants against whom the verdict was rendered to complain about the noninclusion of the defendant who had not been served with process."
In the instant case only one defendant was served. He had his day in court. It was this defendant against whom the plaintiff made out a case. The record resolves any uncertainty as to this and no prejudice resulted to the appellant from the fact that the fictitious defendant was not struck from the complaint.
Assignments of error Nos. 3, 4, 5, 6, 7 8, 9, and 10 relate respectively to the action of the court in giving at appellee's request written charges 1, 2, 3, 5, 7, 9, 11, and 12. From our examination it appears that all of the charges given at appellee's request are correct statements of legal principles applicable to the issues of this case, and were therefore properly given.
As to Charge 1, see Motor Terminal & Transportation Co. v. Millican, 244 Ala. 39, *545 12 So. 2d 96; as to Charge 2, see Alabama Power Co. v. McIntosh, 219 Ala. 546, 122 So. 677; as to Charge 3, see Motor Terminal & Transportation Co. v. Millican supra; as to Charge 5, see Welch v. Evans Bros. Const. Co., 189 Ala. 548, 66 So. 517; as to Charge 7, see Airheart v. Green, 267 Ala. 689, 104 So. 2d 687; as to Charge 9, see Southern Bell Telephone & Telegraph Co. v. McTyer, 137 Ala. 601, 34 So. 1020; as to Charge 11, see Alabama Power Co. v. McIntosh, supra; and as to Charge 12, see Alabama Power Co. v. Irwin, 260 Ala. 673, 72 So. 2d 300.
Under assignment of error No. 27, the appellant argues that the lower court erred in overruling its motion for a new trial on that ground asserting the excessiveness of the damages awarded.
Damages in wrongful death action are penal in nature and are largely within the discretion of the jury. In Airheart v. Green, 267 Ala. 689, 104 So. 2d 687, this court said:
"`The damages are entirely punitive, imposed for the preservation of human life * * * the amount * * * rests largely in the discretion of the jury. However this discretion is not an unbridled or arbitrary one, but "a legal, sound and honest discretion."* * * In arriving at the amount of damages which should be assessed, the jury should give due regard to the enormity or not of the wrong and to the necessity of preventing similar wrongs. The punishment by way of damages is intended not alone to punish the wrongdoer, but as a deterrent to others similarly minded'. Liberty National Life Ins. Co. v. Weldon [ante, 1957, 267 Ala. p. 171] 100 So. 2d 696, 713."
It has been written so many times as to be axiomatic that where the trial court refuses to grant a new trial because he does not consider the verdict excessive, the favorable presumption attending the jury's verdict is thereby strengthened.
In the case of Alabama Power Co. v. Berry, 254 Ala. 228, 48 So. 2d 231, this court specifically spoke to the standard of care required of a public utility in its dealings with the public and stated the following:
"It is the duty of the electric company to use that degree of care commensurate with the risk and danger involved and the public has the right to assume that its high-voltage wires will not be negligently maintained."
During the trial plaintiff offered into evidence the deposition taken by defendant of Guy Purnell, a toxicologist employed by the State of Alabama. Upon the completion of the reading of the direct testimony, the defendant waived the right to read to the jury the cross examination of the witness whose direct depositional testimony had been introduced into evidence by the plaintiff. The defendant objected to the reading of the cross examination contained in the deposition stating as grounds that the plaintiff had adopted the witness as his own by reading the deposition and the plaintiff would be impeaching his own witness by reading the cross examination. Plaintiff responded that he had offered the entire deposition in evidence and the court then allowed the plaintiff to read the cross examination to the jury. The reading of the cross examination is the basis of appellant's assignments of error Nos. 11, 12, 13, and 14.
In the Code of Alabama, 1940, Recompiled 1958, Title 7, § 474(4) there is a provision for the admission of a deposition which reads:
"At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition, or who had due notice thereof, in accordance with any one of the following provisions * * *" (Emphasis ours.)
*546 It would appear that this code section specifically authorizes the introduction of the entire deposition into evidence, subject of course to any objections as to evidentiary matters.
In 134 A.L.R. 212, 225, 226, the annotation speaks of cross examinations contained in depositions as follows:
"Although, as is indicated infra, III a, the introduction in evidence of a deposition by a party other than the one at whose instance the deposition was taken has been generally held to make the deponent the witness of the party introducing the deposition, it would appear, according to the comparatively few cases in which the exact point has arisen, that this fact alone is not sufficient to prevent the part [sic] introducing the deposition from introducing his own cross-examination therein, particularly if such cross-examination was otherwise proper at the time of the taking of the deposition."
The reading of the entire deposition was not error. The questions asked were proper questions for cross examination. Nowhere does it appear that plaintiff was attempting to impeach his own witness.
Appellant contends that the following questions and answers so prejudiced the jury as to require a reversal of this cause:
"Q Were you aware it was important to have a proper ground to prevent the possibility of someone being killed using the telephone, were you aware of the prior to 1968?
"A I had never heard of anybody getting killed.
"Q Have you ever heard of the Benefield boy being killed in Dothan?
"MR. LEE: I object, that is far afield.
"THE COURT: I sustain.
"Q You had never heard
"A That's right, Benefield.
"MR. LEE: If the Court please, I move to exclude his testimony and ask the Court to instruct the jury not to consider it.
"THE COURT: I sustain the objection. Do not consider any other than this case.
"Q Do you wish to withdraw the statement that you never heard of anybody being killed talking over the telephone?
"A Yes, sir."
At this point there was a hearing outside the presence of the jury wherein the defendant moved for a mistrial stating that the question referring to the Benefield case prejudiced the jury. After discussing the matter, the court denied the motion and defendant excepted.
During plaintiff's direct examination of C. L. Smith, an employee of defendant telephone company, counsel asked the court if he may question the witness based on surprise inasmuch as the witness's answers differed from those given by the witness earlier by deposition. The court permitted the line of questioning and from that exchange came the questions set out above.
It is a long established rule that a party surprised by testimony of his own witness, may contradict such testimony by any legal evidence or by cross examination of the witness to refresh his recollection or to show surprise and hostility. Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867. The range of cross examination is within the discretion of the trial court, and, unless it clearly appears that error intervened to the substantial injury of the adverse party, the ruling of nisi prius will not be disturbed upon appeal. Sowell v. State, 30 Ala.App. 18, 199 So. 900. The question appears to be a proper question to *547 ask on cross examination. As to the answer, the court instructed the jury not to consider any other case as the defendant requested.
Defendant counsel next asserts that he was surprised by a change in the testimony of Dr. C. J. Rehling, state toxicologist. In his original report of the autopsy performed on the deceased, Dr. Rehling stated that the cause of death was unknown and consequently the death certificate indicated that the deceased died of natural causes.
On direct examination, Dr. Rehling testified that none of the usual symptoms of death due to natural causes were discovered during the autopsy. He further stated that it was recognized in his profession that one may be killed by lightning without leaving any evidence externally or internally. In response to further questioning, Dr. Rehling stated that a number of significant facts, such as the fact that the telephone service in the deceased person's home was disrupted and that the phone was replaced in order to restore normal service, were important factors in reaching a conclusion as to the cause of death and that he did not have knowledge of these facts at the time of his examination of the deceased. Finally the plaintiff posed a hypothetical question substantially hypothesizing the facts in evidence in the instant case and asked the doctor his opinion as to the cause of death based on the facts as hypothesized. To this question, the witness responded that his opinion would be death caused by lightning, an electrical charge through the telephone system. It does not appear that this constituted a change in testimony but rather Dr. Rehling's opinion based upon additional facts unknown to him at the time of his original autopsical report.
Defendant's assignment of error No. 22, relates to the court's refusal to allow a witness offered by appellant to testify to the fact that Dr. Rehling left the courthouse in an automobile bearing a state license plate. Appellant maintained that this testimony would disprove Dr. Rehling's testimony wherein he had stated that he was in court as an expert witness on his own time and not in his official capacity as state toxicologist. It does not appear that this testimony alone would be conclusive as to what capacity Dr. Rehling was serving simply based on the tag registration of the automobile in which he was riding. This testimony appears immaterial to any issue in this case. In Goldin v. State, 271 Ala. 678, 127 So. 2d 375, this court said:
"It is true as argued by appellant a witness cannot be impeached by contradicting him on an immaterial matter. Smith v. State, 261 Ala. 270, 73 So. 2d 916."
The judgment of the lower court is due to be affirmed, and it is so ordered.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | July 5, 1973 |
49653f34-05b0-4849-a346-bfed25ca2a51 | Gleichert v. Stephens | 280 So. 2d 776 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 776 (1973)
Lela P. GLEICHERT and Arthur A. Gleichert
v.
Patricia A. STEPHENS, a minor.
SC 214.
Supreme Court of Alabama.
July 12, 1973.
John W. Cooper, Birmingham, for appellants.
Lyman H. Harris, Birmingham, for appellee.
JONES, Justice.
This is an appeal from the Circuit Court of Jefferson County wherein a verdict was rendered and judgment entered in favor of the defendant, Patricia A. Stephens. Plaintiffs'Arthur Gleichert and Lela P. Gleichertmotion for a new trial was denied, and they bring this appeal.
The appellants brought suit for personal injuries following an automobile accident which occurred on a dark, rainy night at an intersection in Vestavia Hills, Alabama, in October of 1970. Arthur Gleichert was driving his wife Lela's Mercury when it was struck from behind by another vehicle being operated by the appellee. Both automobiles were proceeding through the intersection, one behind the other, when the collision occurred. The evidence was conflicting as to exactly what or who caused the accident. The explanation championed by the appellants was that the traffic light turned yellow as the appellee was entering the intersection, she speeded up to get through in time, suddenly found herself upon the slower moving vehicle of the appellants, *777 and was unable to stop on the wet pavement before striking the rear of appellant's automobile. The explanation presented most favorable to the appellee was that she was moving through the intersection at a reasonable speed behind the appellants' car when it suddenly decreased its speed without warning and when she applied her brakes, her car skidded on the wet pavement striking the rear of the appellants' automobile.
Evidently, the jury chose to believe the second version or some variation thereof because they returned a verdict in favor of the defendant (appellee). This means that under the issues presented the jury found that the appellee was free of any negligence, or that the appellants were guilty of contributory negligence.
Appellants' assignment of error numbered one through six and eight through twelve charge in substance that the verdict below was contrary to the law and evidence presented and not supported by the preponderance of the evidence. They contend that the appellee as much as admitted her own negligence and failed to offer the slightest evidence of negligence on the part of the appellants.
At the outset it is to be remembered that in determining the sufficiency of the evidence to support the verdict rendered below, this Court must accept as true the evidence most favorable to the appellee, and must indulge such reasonable inferences therefrom as the jury was free to draw. Bagley v. Green, 277 Ala. 118, 167 So. 2d 545; Cooper v. Watts, 280 Ala. 236, 191 So. 2d 519.
Proof in a negligence action is rarely absolute. Necessarily, a jury cannot depend on the basic facts alone; inferences must be drawn therefrom. A jury is like an artist who has been given various colors of paint. As the artist must mix and blend the colors and give them order to form a picture, so must a jury work with the facts they have been given to reach a verdict. Consequently, when the proof in a negligence suit reveals such a state of facts, whether controverted or not, from which different inferences and conclusions may reasonable be drawn, then the question of liability must be left to the jury. Shores v. Terry, 285 Ala. 417, 232 So. 2d 657; Patterson v. Seibenhener, 273 Ala. 204, 137 So. 2d 758.
There is no question but that in this jurisdiction a jury verdict carries with it a presumption of correctness and when, as here, the trial court refuses to grant a motion for a new trial, that presumption is strengthened. Westbrook v. Gibbs, 285 Ala. 223, 231 So. 2d 97; T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So. 2d 706; Robbins v. Voigt, 280 Ala. 207, 191 So. 2d 212.
Applying the above stated principles to the instant case, we are at the conclusion that appellants' above mentioned assignments of error, charging that the verdict is contrary to the evidence presented, are not well taken. Allowing those inferences most favorable to the appellee, we are convinced that the verdict rendered below was supported by the evidence and must stand.
Assignment of error number seven alleges error in the trial court's charging the jury with reference to emergency situations when no emergency was revealed by the evidence. The trial court orally instructed the jury that when a person is faced with a sudden and unexpected emergency the applicable standard of care is that of an ordinary prudent man acting under same or similar circumstances. We are of the opinion that when the driver of a motor vehicle suddenly finds himself rapidly approaching the rear of another vehicle which is obviously traveling at a much slower speed, that an emergency situation exists. The court below correctly pointed out to the jury the distinction when the emergency is created by the party seeking to use it to excuse his conduct. Since this was clearly pointed out, no error was committed in the giving of an oral charge on emergency situations.
*778 Appellants' assignment of error number thirteen concerns the trial court's refusal to grant appellants a new trial. The only grounds for such motion that could be said to have been argued in appellants' brief are essentially the same as appellants' assignments of error discussed previously. Accordingly, this assignment of error is without merit.
Assignment of error number fourteen was not argued in brief and will be deemed waived. Kelley v. General Electric Company, 287 Ala. 514, 253 So. 2d 23; Supreme Court Rule 9.
We have reviewed the allegations of error made by the appellants and find that same are unfounded. Accordingly, the verdict and judgment entered below is due to be and is hereby affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | July 12, 1973 |
94238058-e7a5-45d9-9004-e9cc054d5af6 | Callahan v. Weiland | 279 So. 2d 451 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 451 (1973)
Alston M. CALLAHAN
v.
Henry J. WEILAND and Ellen deM. Weiland.
SC 98.
Supreme Court of Alabama.
June 21, 1973.
*453 Charles A. J. Beavers, Skinner, Large & Corley, Barnett, Tingle & Noble, Birmingham, for appellant.
Don B. Long, Jr., Birmingham, for appellees.
HARWOOD, Justice.
This is an appeal from a decree in a declaratory judgment action whereby the respondent, Dr. Alston M. Callahan was enjoined from constructing a ten story multi-unit condominium on lots 2, 3, 4, 5, and 6 located on top of Red Mountain in Birmingham, in a subdivision known as Warwick Manors.
Warwick Manors subdivision was originally laid out by the Tennessee Land Company, and a map thereof was recorded in the office of the Probate Judge of Jefferson County, Alabama, in October 1927. The United States Steel Corporation became the successor of Tennessee Land Company.
No restrictions on the use of the lots were imposed by the plat filed by the Tennessee Land Company on the use of the lots in the subdivision.
All of the lots in Warwick Manors were sold, the lots being described according to the plat as recorded. The deeds of conveyance to the different grantees contained the following limitations, restrictions, and provisions as to the use of the lots which are material to this review.
In 1929 the Tennessee Land Company executed a deed to Elizabeth T. Cartwright to lot 11 and a 15 foot strip of the east end of lot 12, all in Warwick Manors. By mesne conveyances, this property became vested in the complainants herein, Henry J. Weiland and his wife Ellen.
By deed dated 15 December 1943, lot 4 in Warwick Manors was conveyed by the Tennessee Land Company to Robert S. Smith and Helen Rox Smith, and by deed dated 12 January 1944, lots 2, 3, 5, and 6, among other lots in Warwick Manors were conveyed to the Smiths. By mesne conveyances lots 2, 3, 4, 5, and 6, were acquired by the respondent Dr. Callahan.
All of the deeds executed to the predecessors in title to both the complainant and the respondent, contained the restrictions above set out, other than in the deed to lot 4, the restriction on the cost of any house to be built thereon was fixed at $15,000.00 rather than $7,500.00 as provided in the deeds to the other lots above mentioned.
On 30 December 1970, in an instrument recorded 7 January 1971, the United States Steel Corporation, as successor by merger to the Tennessee Land Company, released and relinquished all rights it had to waive, modify, annul, or enforce the restrictions relating to Warwick Manors subdivision of the Tennessee Land Company and all lots therein as shown by the recorded plat.
On 17 February 1971, the complainants entered into an agreement with Lottie S. Matthews, the then owner, to purchase lot 11 and the east 15 feet of lot 12, all in Warwick Manors, for the sum of $27,500.00. The sale was to be closed in 15 days or the $500.00 earnest money paid by the complainants was to be forfeited. The property was to be conveyed subject to restrictions in the deed from Tennessee Land Company to Elizabeth T. Cartwright.
On 6 April 1971, the United States Steel Corporation executed a document entitled a "Correction Agreement," setting forth that the document of 30 December 1970, wherein it released its right to waive, modify, annual or enforce the restrictions relative to the lots in Warwick Manors, was mistakenly drawn and its effect was to freeze the restrictions and limitations in the deeds to the Warwick Manors lots, whereas in fact the United States Steel Corporation was attempting to grant permission to the owners of lots 1, 2, 3, 4, 5, 6, and 8 to build thereon the type of residential structure known as a "condominium."
As before stated, Dr. Callahan having become the owner of lots 2, 3, 4, 5, and 6 in Warwick Manors, made known that he intended to build a ten story condominium on said lots, or parts thereof.
The Weilands thereupon filed a declaratory action to determine the operative effect of the restrictions in the Warwick Manors' deeds, and also petitioned therein for an injunction to prohibit Dr. Callahan from proceeding with his proposed erection of the condominium building.
The respondent, Dr. Callahan, filed a cross bill and answer.
After a hearing, the Chancellor decreed that the restrictions set forth in the deeds to lots 2, 3, 4, 5, and 6 are valid and enforcible, and meant that only one single dwelling house could be created on any one lot.
It was further decreed that Dr. Callahan, his agents, architects, engineers, contractors, *455 and attorneys be permanently enjoined from engaging in any activity related to the construction of any building in violation of the restrictions set forth in the deeds to the lots.
From this decree the respondent Callahan perfected this appeal.
Appellant contends that the restrictions imposed in the deeds by the Tennessee Land Company were reserved solely for the benefit of the company, and therefore cannot be deemed to be covenants running with the lots sold by the company nor appendant to such lots. Particularly is this true, says the appellant, in view of the provision that the Tennessee Land Company reserved the right at any time to change, modify, and/or annul the restrictions.
Disregarding for the moment the provision that the Tennessee Land Company reserved the right to alter, change, and annul the restrictions imposed on the purchasers of the lots in Warwick Manors, it would appear that the restrictions would naturally tend to enhance the value of all of the lots in the subdivision. It was the apparent intention of the Land Company to develop a highly desirable subdivision on the top of Red Mountain. The restrictions would be appealing to prospective purchasers and would tend to enhance the value of the unsold plots yet in possession of the Land Company. The restrictions may therefore be fairly said to touch and concern the land, and be beneficial to the owners of the lots, whoever they might be, and therefore appendent to the lots. McMahon v. Williams, 79 Ala. 288; Webb v. Jones, 163 Ala. 637, 50 So. 887; Allen v. Axford, 285 Ala. 251, 231 So. 2d 122.
Further, as stated in Allen v. Axford, supra:
As to the effect of reservation of Tennessee Land Company to alter or annul the restrictions imposed in its deeds conveying the lots in Warwick Manors, we quote the following governing principle established in Hall v. Gulledge, 274 Ala. 105, 145 So. 2d 794:
Likewise in this case, upon a consideration of all the language in the deeds, it is reasonable to conclude that the Chancellor *456 did not err in decreeing that it was the intention of the grantor to give to its vendees the right of enforcement of the restrictions.
Appellant contends that the covenants and restrictions are unenforcible because they are vague and ambiguous, in that the restriction as to a single dwelling house on a single lot is confused by the later restriction as to servants' houses, stables, garages, and other buildings apparently permitted after completion of the main dwelling house, and also that the restriction as to apartment houses, double or duplex houses, etc., is limited to apartment houses, etc., selling food.
We find no ambiguity or confusion in the restrictions above mentioned. The permission as to having servants' houses, stables, garages, and other buildings on each lot merely pertains to buildings necessary to and supportive of the single main or capital house permitted on each lot.
It also appears clear that the phrase "or place of any sort for the serving of food or refreshments to the public" is only an additional restriction as to the use of the lot and in no manner is related to or modifying of the other restrictive uses, i. e., apartment house, double or duplex house, inn, etc.
It is our opinion that a tortured construction of the language employed in setting up the restrictions, and the intent of the parties evidenced thereby, would have to be resorted to if accord be given to the above contentions of the appellant.
Appellant further contends that the restriction as to placing an apartment house on the lot should not be deemed to apply to a condominium since condominiums were unknown in this state at the time restrictions were written, and restrictions against free use of property are not favored in law and are to be strictly construed. See Bear v. Bernstein, 251 Ala. 230, 36 So. 2d 483; Springdale Gayfer's Store Co. v. Holmes, 281 Ala. 267, 201 So. 2d 855. It is appellant's contention that a condominium is but a single residence. With this we disagree.
While the form of ownership represented by one purchasing a unit in a condominium has been long known in Europe, such ownership is a fairly recent development in this country.
It was first recognized in Alabama by Act No. 206, approved 1 September 1964, which provides in its first section that the Act is to be known as Apartment Ownership Act. For convenience this Act may be found as Secs. 286 through 313 of Title 47, Recompiled Code of Alabama, 1971 Cumulative Pocket Part.
In Sec. 1.01 of their work "Condominium Law and Practice," Rohan and Reskin set forth that:
Ordinarily a condominium consists of a number of units or apartments in a single structure. Section 289 of our Apartment Ownership Act, mentioned above, provides that:
Two enlightening articles concerning the condominium concept of ownership may be found in the January 1973 issue of The Alabama Lawyer, Vol. 34. These are "Castle in the Air," by Albert J. Tully, and "Some Aspects of Condominium Development," by Thomas G. Mancuso.
These two articles as well as other writings on the subject, show that one purchasing a condominium unit acquires two types of ownership. First, he becomes sole owner of the entire area constitution the unit purchased. Secondly, he becomes co-owner or tenant in common of a percentage of the *457 common elements and areas of the condominium. There common elements are such things as supporting (but not interior) walls, the roof and foundation of the building in which his unit is located, the general wires and pipes in the building, walks, streets, the land area or tract in which the condominium is placed, and such things as a swimming pool or clubhouse if erected on the condominium property.
The declaration filed in connection with setting up and establishing a condominium fixes the percentage of ownership in the general elements of the condominium property acquired by virtue of owning a unit in the condominium. The declaration also fixes the percentage of voting rights of each unit owner, and the percentage of expenses the unit owner must bear in the common expenses of maintaining the condominium.
The restrictions limiting the use of each lot to a single dwelling house with necessary outbuildings, with the additional expressed intent that no apartment house, double or duplex, inn, or boarding house could be maintained on any lot, evinces a clear intent of the parties to prevent an overdensity of population in the subdivision, and to maintain the subdivision as a highly desirable residential subdivision.
Any multi-unit dwelling building would be contrary to this intent whether it be called an apartment or a condominium.
One distinction between the two in this aspect is that the usual apartment building and area is owned by a single person who rents the apartments or units in the building, whereas in a condominium the apartments or units are owned by the individuals, who also own a percentage of the common elements of the condomium. The population congestion is the same in either case.
Our Apartment Ownership Act which permits the establishment of condominiums speaks throughout of "apartment," "apartment owner," "association of apartment owners," etc.
In Webster's Third International Dictionary, "apartment building" or "apartment house" is defined as, "A building containing a number of separate residential units and usu. having conveniences (as heat and elevators) in common."
We hold that a condominium is within the scope and meaning of the word "apartment house" as it appears in the restrictive provision prohibiting the erection of an apartment house on the lots here involved.
Counsel for appellant contends that paragraph (1) of the restrictions limiting the use of the property to white persons only is the primary covenant in the restriction provisions, and that all the remaining covenants are subordinate thereto. Thus, argues counsel, all the restrictions are void. Counsel cites no authority in support of this contention.
The racially restrictive covenant bears no relation to the remaining covenants, and is entirely distinct from the building and use restrictions. Although the racially restrictive covenant is unenforcible since Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, we see no reason why it should not be separable from the remaining enforcible covenants, which separation would in nowise affect the validity of the remaining covenants. At least two of our sister state courts have so held, and we are in accord with such holdings. See Brideau v. Grissom, 369 Mich. 661, 120 N.W.2d 829; Goodstein v. Huffman (Tax.Civ.App.), 222 S.W.2d 259.
Appellant argues that the power reserved by the Tennessee Land Company, coupled with the document of 30 December 1970, as said document was corrected by the instrument of 6 April 1971, resulted in a permission to Dr. Callahan to erect a condominium on his property.
The fallacy of this argument is that the effect of the 30 December 1970 instrument, *458 which was recorded on 7 January 1971, was to reaffirm the restrictions, if such reaffirmance was in anywise necessary, in clear and unambiguous language.
The appellees purchased their lot on 15 March 1971.
Mr. Weiland testified that a copy of the deed from the Tennessee Land Company conveying to Elizabeth T. Cartwright the property he later purchased, as well as the instrument of 30 December 1970, whereby the United States Steel Corporation, as successor to the Tennessee Land Company, relinquished its right to waive, modify, or annul the restrictions contained in the deeds therefore conveying lots in Warwick Manors, were both in his hands. He was aware of the contents of the documents and of the covenants and restrictions governing lots in Warwick Manors, and thereafter purchased his lot in reliance thereon.
The Weilands therefore must be deemed to have acquired their lots with all rights attached thereto as of the date of their deed.
Clearly, the action of the United States Steel Corporation as evidenced by the so-called "Corrective Agreement" of 6 April 1971, cannot be permitted to affect the rights previously acquired by the Weilands. This "Corrective Agreement" executed many years after the vendor had parted with title to the lots in Warwick Manors cannot be deemed of any legal effect. Allen v. Axford, supra; Virgin v. Garrett, 233 Ala. 34, 169 So. 711; Scheuer v. Britt, 218 Ala. 270, 118 So. 658.
Appellant's assignment of error 1 asserts that the trial court erred in sustaining complainant's (appellee's) demurrer to respondent's (appellant's) cross bill, while assignment of error 2 and 3 assert the same error on the basis that no answer to the cross bill was filed and issue had not been joined.
It appears from the record that at the time of trial of the present case there was also pending another case styled Henry J. Weiland et al. v. Alston M. Callahan, being Case No. 168-545, in the Circuit Court of Jefferson County, in Equity. The second case involved the validity of a zoning ordinance of the City of Birmingham which rezoned the appellant's lots to permit the construction of condominiums thereon by the appellant.
On 2 February 1972 the appellant herein filed a motion to consolidate this case with the zoning ordinance case. On 22 February 1972, the Chancellor denied the motion to consolidate.
However, the record reflects that it was agreed in open court during the hearing that the present case (concerning the covenants and restrictions) and the zoning case would be tried seriatim, and that the testimony taken would be applicable in both cases.
Two bases were set forth in the cross bill as supportive thereof:
We note immediately that as to basis No. 2, this same proposition was set forth in appellant's answer and was made an issue during the trial. Appellant therefore could not have suffered any probable injury to any substantial right because of the sustention of the demurred under this aspect of the cross bill.
As to the matter of the rezoning of appellant's property, mentioned in paragraph 1 above, the record shows that at the start of the hearing of this case involving the covenants, James Arthur Wright was called *459 out on order and examined by an attorney for the appellant. Mr. Wright is a City Planner for the City of Birmingham. He testified fully as to the procedure and hearings, which culminated in the passage of an ordinance by the governing body of the City of Birmingham rezoning appellant's (Dr. Callahan's) lots to permit the erection of a condominium thereon.
The effect of the order sustaining the demurrer to the cross bill was to eliminate it until the appellant filed an amendment thereto. Savage v. Savage, 246 Ala. 389, 20 So. 2d 784; Comer v. Limbaugh, 256 Ala. 655, 57 So. 2d 72. Even so, evidence was received going to the very aspect of the cross bill seeking to inject the rezoning ordinance into the issues. No amendment, however, was made to the cross bill in the light of this evidence.
Nor do we see that any effective amendment to the cross bill seeking to set up that aspect of the cross bill relating to the rezoning ordinance could have been made. This for the reason that a contract creating a covenant running with land cannot be impaired by a law enacted by the state, nor by a municipality which is a creature of the state. Allen v. Axford, supra; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 17 U.S. 518, 4 L. Ed. 629; Article 1, Sec. 10, Constitution of the United States; Article 1, Sec. 21, Constitution of Alabama 1901. We hold that the appellant suffered no probable injury to any of his substantial rights because of the sustaining of the demurrer to the cross bill in the aspect asserting the rezoning ordinance permitting the building of a condominium on appellant's lots.
Finally, appellant's assignment of error 8 reads:
Ordinarily the matter of consolidation of causes is within the judicial discretion of the trial court. Ex parte Ashton, 231 Ala. 497, 165 So. 773. We find no abuse of this discretion in this case.
Counsel for appellant argues, however, that after denying appellant's motion for consolidation, the court proceeded to try the cases together.
Except for the witness, James Arthur Wright, who was taken out of turn and whose testimony related solely to the rezoning case, the evidence in the rezoning case was not taken until the completion of the evidence in the present case, that is, the covenant case. It is to be noted that in his motion to consolidate the appellant asserted that the sole issue involved in each case was whether the appellant could construct a condominium on his described lots, and that the purpose of bringing two suits was to hinder, delay, and obstruct such use of the lots, and that the result of not consolidating the two cases would result in vexatious and costly delay.
It would appear that the procedure followed by the Chancellor was with the full concurrence and acquiescence of the appellant. Certainly the appellant interposed no objection during the proceeding below to the procedure followed. Matters not objected to in the trial below cannot be raised for the first time on appeal. Hoefer v. Snellgrove, 288 Ala. 407, 261 So. 2d 431.
Nor is this matter within the influence of Bateh v. Brown, 289 Ala. 695, 271 So. 2d 830, as argued by the appellant.
In the present case the decree sustaining the demurrer to the cross bill was entirely separate and apart from the final decree rendered. Each, however, was rendered in *460 the present case, and not in the rezoning suit. In Bateh, supra, a single decree was rendered deciding the issues in two separate and district cases without any order consolidating the two cases.
Affirmed.
HEFLIN, C. J., and MERRILL, COLEMAN and FAULKNER, JJ., concur. | June 21, 1973 |
62eb56f0-52f3-4a53-9fcd-fda965986060 | BOARD OF TRUSTEES OF EMP. RETIRE. SYS. v. Talley | 280 So. 2d 553 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 553 (1973)
BOARD OF TRUSTEES OF EMPLOYEES' RETIREMENT SYSTEM OF the CITY OF MONTGOMERY, Alabama, et al.
v.
Dorothy Carr TALLEY.
SC 116.
Supreme Court of Alabama.
July 5, 1973.
Rehearing Denied August 2, 1973.
*554 Walter J. Knabe, Montgomery, for Board of Trustees of Employees' Retirement System of the City of Montgomery.
Joseph D. Phelps, Montgomery, for City of Montgomery.
Calvin M. Whitesell, Montgomery, for appellee.
HEFLIN, Chief Justice.
This is an appeal from a final decree entered by the Circuit Court of Montgomery County, in equity, declaring Paragraph 17 of Section 6 of Ordinance 12-65 of the City of Montgomery to be unconstitutional and awarding the appellee-complainant Mrs. Talley a gross sum of $7,466.76 and monthly payments of $118.52 for life.
The instant controversy involves the retirement system provided by the City of Montgomery by Ordinance Number 12-65 to provide retirement allowances for employees of the City under alternative options of equivalent actuarial value. The appellee-complainant's deceased husband, Mr. Talley, had elected to receive option number 2 which allowed Mr. Talley to *555 draw modified retirement benefits and his named beneficiary, i.e., appellee-complainant Mrs. Talley, to receive a reduced retirement allowance for her life if the retired member died before Mrs. Talley. Mr. Talley designated February 1, 1966 as the effective date of his retirement on December 29, 1965 when he left the employment of the city. He had accrued leave from December 29, 1965 to February 1, 1966. He died on February 25, 1966, prior to receiving his first retirement check, which was due March 1, 1966.
The appellant-respondent Board of Trustees, acting pursuant to a clause found in paragraph 17, section 6, denied Mrs. Talley any benefits under the retirement system except a return of her late husband's contributions. The clause in question, which Mrs. Talley challenges as unconstitutional, follows a statement to the effect that any member may elect to receive a modified retirement allowance, as noted above, and reads as follows:
The Board of Trustees has raised a procedural problem which would be dealt with at the outset. The Attorney General was served with the original bill of complaint and all amendments thereto, save the final two, of which the Attorney General received notice merely by mail. The Board of Trustees question whether this is sufficient under Title 7, § 166, Code of Alabama 1940 (Recompiled 1958), which provides in pertinent part as follows:
The question then becomes whether the term "proceeding" as used in § 166 includes all amendments as well as the original bill of complaint. The original bill is clearly included within the term "proceeding," and merely mailing a copy of same to the Attorney General will not suffice, as § 166 explicitly provides that the Attorney General be "served" with a copy of the proceeding. Town of Warrior v. Blaylock, 271 Ala. 685, 127 So. 2d 618 (1961); City of Gadsden v. Cartee, 279 Ala. 280, 184 So. 2d 360 (1966).
Mrs. Talley argues that this court's holding in Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 211 So. 2d 451 (1968), dispenses with any supposed need for service of all amendments. However, in that case the Attorney General had acknowledged receipt of a copy of the bill of complaint and waived further service and the right to be heard. The record in the instant case reveals no such waiver.
The purpose of the provisions of Title 7, § 166 is to give notice of the filing of the bill, and protect the state and its citizens should the parties be indifferent to the outcome of the litigation. Masters v. Pruce, 290 Ala. 56, 274 So. 2d 33 (1973); Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209 (1948); Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062 (1928); Parr v. City of Seattle, 197 Wash. 53, 84 P.2d 375 (1938). This purpose has been served in this case, and the Attorney General has filed no answer or other pleadings in the case indicating that he wished to be heard, nor has he complained of the lack of service of the amendments. Under such circumstances this court can only conclude that there was certainly a substantial compliance with the provisions of Title 7, § *556 166, sufficient to answer the Board of Trustees' contention in this regard. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1954). See also Title 7, Section 349(2), Code of Alabama, 1940, as amended (Recompiled 1958-1971 Pocket Supplement).
Moving now to the issue presented by the merits of the instant case, it is to be noted that the final decree of the lower court contained the following language:
Where evidence is heard orally before the trial court, the findings of the court have the effect of a jury's verdict and will not be disturbed on appeal, unless plainly erroneous, whether in law or equity. Patterson v. Brooks, 285 Ala. 349, 232 So. 2d 598 (1970). There is, however, another presumption which has a field of operation in this case to the effect that any statute or ordinance is presumed to be constitutional, and the burden is upon the party asserting its unconstitutionality to show that it is not constitutional. Al Means, Inc. v. City of Montgomery, 268 Ala. 31, 104 So. 2d 861 (1958); Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402 (1937). Proceeding under the assumption that the lower court indulged this presumption of constitutionality it must have concluded from the evidence adduced at trial that Mrs. Talley had successfully rebutted this presumption, and this finding as will be discussed later, must be affirmed, as there was sufficient evidence produced to warrant such finding, so that this court can not say that it is plainly erroneous.
In the instant case the constitutional challenge of the 30-day clause raises at least 3 related questions: Is the 30-day waiting period an arbitrary provision? Does the 30-day clause result in an unreasonable classification system? Does the 30-day clause deny equal protection under the law? While these three aspects of the central constitutional issue will be reviewed simultaneously, some separate treatment is necessary.
The equal protection clause is violated by a classification system only when it is without any reasonable basis and is arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S. Ct. 337, 55 L. Ed. 369. This court has previously set forth the tests to be applied in determining the constitutionality of a classification system. The class
State v. Pure Oil Co., 256 Ala. 534, 55 So. 2d 843 (1951).
Within these constitutional limits the governing authority should be given the widest possible latitude in enacting laws. Pure Oil, supra. This court must consider the fifth requirement mentioned above and the evidence of the case in determining whether the trial court erred in its finding of unconstitutionality.
The purpose of the 30-day clause, as indicated by the testimony of Charles A. Smith, a member of the Board of Trustees of the Employees' Retirement System of the City of Montgomery, was "for administrative purposes and to establish the individual as far as a retirement roll. He goes off the City payroll completely." It is to be noted, however, that in this particular case all administrative computations and entries had been made prior to the death of the appellee-complainant's husband and his death placed no administrative burden on the Board.
In any case, whether the former employee lived beyond the 30-day period or not has no effect on the amount he is to receive monetarily or the computation of that amount under the retirement system, because the employee has earned his retirement.
David Parsons, a consulting actuary, testified that the 30-day waiting period was an unusual provision. While there is a need for a waiting period, he stated, the period should precede the effective date of retirement, so that the employee's election will become effective as of the date of retirement, not 30 days later. Mr. Parsons concluded that there was no reason actuarily for a 30-day waiting period after the date of retirement. Thus the trial court could have found that as the retirement system is presently set up, i. e. with the 30-day clause, if an employee dies within the 30-day period, a gain or windfall would result to advantage of the City.
The Board of Trustees did not call their own expert or the actuary who set up the retirement system to contradict any of Mr. Parsons' testimony. Under this state of the case the trial court could have concluded that any necessary waiting period could have and should have preceded the effective date of retirement; that such procedure of having a before-retirement-waiting-period would result in no great administrative burden to the Board of Trustees, and that such before-retirement-waiting-period was the only reasonable approach to this problem. The trial court had the right under the evidence to find that the procedure provided by the ordinance was unduly oppressive and prohibitive, in view of the readily available alternative of a waiting period before, rather than after the retirement date.
Even if the ordinance could be said to be within constitutional bounds as regards its classification system, the trial court was within its bounds of discretion in finding the waiting period system was arbitrary. Whether the ordinance was arbitrary turns on these inquiries: Whether, in view of the entire plan or system, taking into account its objective and beneficiaries, there was some genuine need for the 30-day clause; and, if so, whether the 30-day clause is a sound and fair way to meet this need. If these questions are fairly debatable, or, put another way, if reasonable men may differ as to these inquiries, the provision may not be said to be arbitrary. McCraney v. City of Leeds, 241 Ala. 198, 1 So. 2d 894 (1941); Gilchrist Drug Co. v. City of Birmingham, 234 Ala. 204, 174 So. 609 (1937); Leary v. Adams, 226 Ala. 472, *558 147 So. 391 (1933); Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944). There must be some reasonable relation between the provision in question and the ends to be attained. Alabama State Federation of Labor v. McAdory, supra.
For the reasons mentioned above as to why the trial court was within its bounds of discretion in finding the classification was unreasonable, this court is constrained to the conclusion that the trial court was not plainly and palpably erroneous in its findings that the 30-day clause following the effective retirement date was not a sound and fair way to meet any need which may exist for such a provision, in view of the available alternative of a waiting period which would precede the retirement date and was therefore arbitrary since it took away earned benefits.
Affirmed.
MERRILL, HARWOOD, MADDOX and FAULKNER, JJ., concur. | July 5, 1973 |
078978c6-b769-4115-ac86-289c775df94a | Owens v. State | 278 So. 2d 693 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 693 (1973)
Kenny OWENS
v.
STATE of Alabama.
SC 386.
Supreme Court of Alabama.
May 31, 1973.
*694 James M. Fullan, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for the State.
JONES, Justice.
This case was transferred from the Court of Criminal Appeals on May 9, 1973. The defendant was tried by a jury in Jefferson County Circuit Court for the unlawful possession of heroin. He was found guilty and sentenced to a fine of $1,000.00 and commitment to the state penitentiary for a period of five years. The trial judge overruled defendant's motion for a new trial and this appeal followed.
The evidence at trial consisted primarily of the testimony of Robert Walker, an undercover agent for the Birmingham Police Department. Walker testified that on April 20, 1971, he and a man identified only as Freddie went to a convenience store operated by the defendant. There they asked the defendant if he had any drugs to which he replied he had some "skag" (heroin), and he instructed them to meet him around the corner at a certain green house. Walker and "Freddie" went to the door of the house and defendant soon opened the door from the inside and invited Walker to come inside. Walker testified that he then told the defendant how much heroin he wanted and purchased two small packets for $40.00. Walker turned the drugs over to Sergeant J. A. Williams of the Birmingham Police Department later that night at which time the drugs were placed in a brown envelope and initialed by Walker and Williams. Williams placed the envelope in a locked drawer, removed it the following morning in the same condition, and took the envelope personally to the state toxicologist.
*695 Subsequently, defendant was arrested, indicted and tried for the unlawful possession of heroin. The defendant testified in his own behalf and denied the facts as related by Walker. He denied selling Walker, or anyone else, any drugs and stated that he knew Walker was a police officer before the date of the alleged sale. The jury evidently refused to believe the defendant's denials.
The first error alleged in defendant's brief on appeal concerns the "chain of evidence" in regard to the custody of the drugs involved. Defendant asserts that it is the duty of the state "to forge an unbreakable chain of custody" before evidence of seized contraband can be introduced. We have reviewed the testimony on this point and find no missing link in the chain of custody. Identification and continuity of possession were sufficiently established and defendant's allegation is not valid. Dennison v. State, 259 Ala. 424, 66 So. 2d 552; Russell v. State, 47 Ala.App. 612, 259 So. 2d 298; Powell v. State, 47 Ala.App. 582, 258 So. 2d 923.
Defendant next contends that the trial court erroneously refused to give his requested charge number 5, as follows:
The case cited by defendant, Emerson v. State, 29 Ala.App. 459, 198 So. 67, cert. den., 240 Ala. 118, 198 So. 70, does not convince us that charge number 5 should have been given. Emerson says:
The requirements of Emerson were adequately met by the court's oral charge. We are unable to find convincing authority that such charge must be given, especially where the record reveals that the trial court in its oral charge instructed the jury with respect to their duty to consider the interest or bias in determining what weight they would give the testimony of such witness. Defendant's contention on this point is not well founded and cause for reversal is not contained therein.
The evidence at trial revealed no conflict between Walker's testimony there and at the preliminary hearing. Consequently, defendant's charge number 6, requesting instructions on the effect of a witness' prior inconsistent statements, was properly refused by the trial court, the issue not being presented.
Defendant also claims that the court below erred in refusing his requested charge number 11. We cannot agree with defendant's claim. Charge number 11 was clearly intended to be in response to certain statements made by the prosecutor during his closing remarks to the jury. Such is not the proper object of requested charges and instructions of this type are properly refused. Anderson v. State, 160 Ala. 79, 49 So. 460; Thomas v. State, 150 Ala. 31, 43 So. 371; Gettings v. State, 32 Ala.App. 644, 29 So. 2d 677, cert. den., 249 Ala. 87, 29 So. 2d 683.
Defendant next asserts that reversible error was committed because there was a variance between the allegations in the indictment and the proof at trial. The indictment charged defendant with the possession and sale of 70.84 mg. of heroin. At trial it was revealed that the above quantity was derived partly from an assumption by the state toxicologist, John M. Case, that each packet of heroin he examined contained the same percentage of pure heroin. In short, it could be said that the *696 state only proved that the defendant sold Walker 49 mg. of heroin rather than 70.84 mg. as alleged. We do not think the above variance is fatal. Selling 1 mg. of heroin is a prohibited act and it has been held that there is no variance where the accused committed a substantial offense specified in the indictment. Taylor v. State, 47 Ala.App. 285, 253 So. 2d 354; Fuller v. State, 39 Ala.App. 219, 96 So. 2d 829.
Defendant also alleges error in the trial court's refusal to give to the jury his requested charges numbered 12, 13, and 14. Each of these charges was on the legal aspects of entrapment as a complete defense. Entrapment has been defined as the inducement of one to commit a crime not originated by him, for the purpose of instituting criminal proceedings against him. 21 Am.Jur.2d, Criminal Law, § 143. The defense of entrapment, as a complete bar to conviction, was created to avoid the evil of inducement by law enforcement officials or others of a person to commit a criminal act. But where the law enforcement officer merely affords an opportunity to one intending to violate the law, he does not induce the offense to be committed. The offender in such a case acts of his own will and is simply caught by his own devices. 21 Am.Jur.2d, Criminal Law, § 144.
Although we are unable to find an Alabama case directly on point, the decided weight of authority is to the effect that the defense of entrapment is not available, and requested charges on the law of entrapment are properly refused, where the defendant takes the witness stand and denies the commission of the offense charged. Longmire v. United States, 404 F.2d 326 (C.A.5 1968), certiorari denied, 395 U.S. 912, 89 S. Ct. 1757, 23 L. Ed. 2d 225; People v. Bernal, 174 Cal. App. 2d 777, 345 P.2d 140; State v. Avery, 152 Conn. 582, 211 A.2d 165; Neumann v. State, 116 Fla. 98, 156 So. 237; People v. Banks, 103 Ill.App.2d 180, 243 N.E.2d 669; Reeves v. State, 244 So. 2d 5 (Miss.); State v. Varnon, 174 S.W.2d 146 (Mo.). See Annotation: 61 A.L.R.2d 677.
We are of the opinion that such should be the rule in Alabama and we hereby adopt the following language from the Neumann, supra, decision:
Defendant also contends the court below erred in allowing cumulative, improper and prejudicial argument by the prosecutor. We are unable to agree. The first statement objected to at trial as improper is as follows:
We think the trial court acted within its broad discretion in overruling defense counsel's objection to the above quoted remark of the prosecutor. Statements of the prosecutor, which are merely arguendo of his opinion of the case, are generally within the limits of allowable forensic discussion. Sanders v. State, 260 Ala. 323, 70 So. 2d 802, and cases cited therein.
The next statement defendant claims was erroneously allowed to stand over objection is as follows:
Counsel for the defendant interposed the following objection:
*697 To this objection the court responded thusly:
Defendant is claiming (for the first time on appeal) the above quoted statement of the prosecutor was improper and prejudicial and the objection thereto should have been sustained. While an objection at trial founded upon the prejudicial nature of the prosecutor's above statement may have been properly sustained, it is clear from defense counsel's objection that same was founded not on prejudice but on the question of its correctness. We are not unimpressed with defendant's argument that the obvious singular import of such argument was to imply to the jury that defendant had in fact committed other offenses which the district attorney would have revealed to the jury but for the "moral turpitude" rule. We think it apparent that this was the only purpose intended by such argument, and that had defense counsel elected to ground his objection on the prejudicial effect of such argument it would have been incumbent upon the trial judge to sustain such objection and to instruct the jury appropriately thereto if requested to do so. Such argument clearly does not come within the "allowable forensic discussion" rule set out in Sanders, supra.
Our holding affirming the trial court's overruling of the objection is not to be understood as upholding such prejudicial argument, but is founded on the fact that the ground stated in the objection to the argument did not invoke a ruling of the court based on the prejudicial effect of the argument; nor was this contention made a ground of the defendant's motion for a new trial. Consequently, since we may review only the rulings of the trial court, we find that the above objection was properly overruled. See Anderson v. State, 209 Ala. 36, 95 So. 171.
As to the specific objection, the rule in this jurisdiction is that a witness may be cross-examined about his former conviction of a crime involving moral turpitude for the purpose of attacking his credibility. Caldwell v. State, 282 Ala. 713, 213 So. 2d 919; Title 7, § 434, Code of Alabama 1940 (Recomp.1958). All felonies do not per se involve moral turpitude. For a list of cases illustrating felonies not involving moral turpitude, see McGovern v. State, 44 Ala.App. 197, 205 So. 2d 247.
The third statement made by Mr. Russell in his closing argument which the defendant contends was erroneously allowed is as follows:
At this point defense counsel objected on the grounds that the above argument was outside the evidence. Although the statement in the record is incomplete, for the reasons discussed earlier in Sanders, supra, we are convinced the trial court did not err in overruling defense counsel's objection.
We have reviewed the matters raised in defendant's brief on appeal and have examined the entire record for error as required by law. Finding no error the case is due to be and is hereby affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | May 31, 1973 |
db9c957a-dbe1-4362-8b2f-82a0236ae4ef | Higgins v. Nationwide Mutual Insurance Co. | 282 So. 2d 301 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 301 (1973)
In re Gwen HIGGINS, a minor
v.
NATIONWIDE MUTUAL INSURANCE CO.
Ex parte NATIONWIDE MUTUAL INSURANCE COMPANY.
SC 326.
Supreme Court of Alabama.
August 30, 1973.
*302 Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, III, Birmingham, for petitioner.
M. Clay Alspaugh, Birmingham, for respondent.
McCALL, Justice.
Nationwide Mutual Insurance Company, the insurer and the defendant in the trial court, petitioned us for a writ of certiorari to issue to the Court of Civil Appeals to review and reverse and adverse opinion of that court on the ground that a legal question of first impression in Alabama was involved. See Rule 39, Revised Rules of Practice in the Supreme Court, as amended, Appendix to Title 7, Code of Alabama, Recompiled 1958 (Cum.Sup.). Upon preliminary examination, we were of the opinion that the writ should issue and so granted the application.
The plaintiff, a minor daughter of the named insured in the defendant insurer's automobile liability policy, was also an insured under that policy. She was injured in a one vehicle accident while being transported as a student-passenger in an uninsured Jefferson County, Alabama, school bus allegedly as a result of the negligence of the bus driver. She sought to recover damages for her injuries under the uninsured motor vehicle provision in her father's *303 automobile liability policy. For a better understanding of the facts in the case and the decision of the Court of Civil Appeals, see Higgins v. Nationwide Mutual Insurance Co., Civ. 57 (Ms.), decided on February 7, 1973.
The policy of insurance contains an express exclusion of "an automobile which is owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing," from the definition of the term "uninsured automobile," as defined therein.
The Court of Civil Appeals held that the exclusion in the insurance contract was void. We have carefully reviewed the decision of the Court of Civil Appeals, and it is our considered opinion that in its holding it has reached a correct result and the case is due to be affirmed.
Our Uninsured Motorist Act, Act No. 866 of the Legislature, Acts of Alabama, Regular Session, 1965, Vol. II, p. 1614, listed in the Recompilation as Tit. 36, § 74(62a) provides:
The purpose of Act No. 866 is to provide coverage "for the protection of persons insured thereunder" against injury, including death, caused by the wrongful act of an uninsured motorist. Gulf American Fire & Casualty Co. v. Gowan, 283 Ala. 480, 218 So. 2d 688. While there may be argument for not including motor vehicles owned by the United States, Canada, a state or a political subdivision or agency of any of these, since governmental bodies are likely able to respond in damages, the fact remains that the Legislature did not provide this exclusion in the Act. It might have undertaken to do so, had it desired, Jones v. Southern Farm Bureau Casualty Co., 251 S.C. 446, 163 S.E.2d 306, but not having done so, it is mandatory that Act No. 866, the governing law be read into the policy contract as it exists. Where the inclusion of uninsured motorist coverage is mandatory under an act, unless specifically waived, the governing act states what the coverage shall include. Page v. Insurance Co. of North America, 256 Cal. App. 2d 374, 64 Cal. Rptr. 89; Standard Accident Insurance Co. v. Gavin, 184 So. 2d 229 (Fla. App.); Ampy v. Metropolitan Casualty Insurance Co., 200 Va. 396, 105 S.E.2d 839.
In 11 Am.Jur. Trials, § 6, p. 86, it is stated:
Couch on Insurance, Second Edition, Vol. 12, § 45.625, p. 571 states:
In Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 614, 243 So. 2d 736, 742, the restriction on uninsured motorist coverage under consideration was a contractually imposed limit on the total amount recoverable, if more than one insurer became liable to pay under its policy. In rejecting the unauthorized attempt to limit coverage this court said:
Similarly, an attempt to contract away the uninsured motorist coverage provided by law by excluding from coverage any amounts which were received by the insured from any other similar insurance, was held void and unenforceable in State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So. 2d 619 (1971). There the appellant insurer sought to set off the amounts recovered or to be recovered under workmen's compensation insurance against the amounts due under its uninsured motorist coverage. We held there as in Safeco, supra, that such attempts to avoid the statutory liability of coverage were themselves void.
The Court of Civil Appeals in its opinion cites as authority, Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539 (8th Cir.), which dealt with an exclusion in an uninsured motorist coverage which provided that the term "uninsured automobile" does not include a vehicle owned by the United States, Canada, a state, or a political subdivision of any such government or any agency thereof. The U. S. Court of Appeals construing Arkansas law reasoned that the exclusion was invalid as contrary to the Arkansas uninsured motorist statute. We think the decision is apropos and are in accord with its holding.
The petitioner, Nationwide, contends that there is a valid ground to distinguish Vaught, supra, from the instant case, that is, the absence in Vaught of a financially responsible entity to respond in money to the plaintiff's injuries. When acting in its governmental capacity, the City of North Little Rock was not liable in damages for negligent injuries inflicted on others by its employees, servants, and officers. In an attempt to distinguish the cases, the petitioner argues that the plaintiff here may look to the State Board of Adjustment Act (Code of Alabama, 1940, Tit. 55, § 333 et seq., as amended) for recompense. We do not consider in a case of this kind that the measure of an injured person's rights under the State Board of Adjustment Act is equivalent to that afforded by a common law action. In the latter the parties may have the issues of fact determined by a jury, while a student claiming damages for personal injuries incurred on a school bus on account of the driver's negligence would be bound by the board's *305 decision both as to liability and the amount of the award. Under the State Board of Adjustment Act, if it appears to the Board that another is legally liable, it may withhold payment until final settlement has been made with that party, and any damages that are recovered may be offset against payments due under the act. Further the benefits payable under the act are to equal maximums payable under the Workmen's Compensation Law (Chapter 5, Tit. 26, Code of Alabama, 1940, as amended) while an injured party as here may otherwise in a civil action recover reasonable compensation for his injuries. We do not consider the petitioner's contention sufficient to distinguish Vaught from the present situation.
Further we decline to base our holding on the presence or absence of a financially responsible party. Rather the question is whether conditions may be imposed in a policy which conditions restrict the uninsured motorist coverage prescribed by law.
We think that in the absence of any language in the act authorizing the exclusion, no exclusion of governmentally owned motor vehicles may be created in the policy. An attempt to include such in the policy provisions conflicts with the mandate of the act. The act provides such insurance protection for insureds without limitation or restriction as to whether or not the uninsured motor vehicle is governmentally owned or operated, and restricting the act's scope thwarts its purpose.
Nationwide, the petitioner, argues that since Act No. 866 does not define an uninsured motorist, the contracting parties may define its meaning so long as such definition does not conflict with public policy and the provisions of the act. The petitioner contends that it is not against public policy for the parties to agree that an uninsured automobile as defined in the policy shall not include a governmentally owned motor vehicle.
It is reasonable and safe to state that "an `uninsured automobile' is ordinarily defined to include motor vehicles with respect to which neither the owner nor the operator carries bodily injury liability insurance, and `hit and run' automobiles." 7 Am.Jur.2d Automobile Insurance, § 136, p. 462; 79 A.L.R.2d 1253. We have said that the words of the act control, so the question arises whether the coverage in the policy is narrower or more restrictive than that called for in the act. It is obvious to us that the definition, that an uninsured automobile shall not include an automobile owned by the government or a subdivision thereof, narrows and restricts the general meaning and definition of an uninsured automobile. Further, if the exclusion did not purpose to restrict the meaning of the term "uninsured motorist" as it appears in the act, then why was any definition ever made a provision of the insurance contract? The exclusion in the policy is more restrictive than the act and is therefore void.
Nationwide argues there arises a conflict between the holding in the opinion of the Court of Civil Appeals in this case and its decision in Lammers v. State Farm Mutual Automobile Insurance Co., 48 Ala.App. 36, 261 So. 2d 757, wherein certiorari was denied by this court. See 288 Ala. 745, 261 So. 2d 766. It has been repeatedly stated that the mere denial of a petition for certiorari to one of our appellate courts is not to be taken as an affirmance or agreement by this court of all that is said in the opinion of the appellate court. There are many reasons why writs are denied. The argument that Lammers is contrary to the holding of that court in this case is not convincing because we did not necessarily approve Lammers by denying certiorari.
Being of the opinion that those parts of contracts of insurance which infringe upon or attempt to restrict the uninsured motorist coverage are contrary to the Legislative Act, Safeco Insurance Co. of America v. Jones, supra, State Farm *306 Mutual Insurance Co. v. Cahoon, supra, see also Vaught v. State Farm Fire and Casualty Co., supra, we hold that the clause here in question attempting to exclude governmentally owned vehicles is void and unenforceable. The decision of the Court of Civil Appeals is due to be affirmed.
Affirmed.
All Justices concur. | August 30, 1973 |
7e9cdc38-b565-4f53-90c9-a02157bd2b62 | Fennell v. State | 282 So. 2d 379 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 379 (1973)
In re Isom FENNELL
v.
STATE.
Ex parte Isom Fennell.
SC 459.
Supreme Court of Alabama.
August 30, 1973.
Robert G. Esdale and Crompton Harris, Birmingham, for petitioner.
No brief for the State.
JONES, Justice.
Petition of Isom Fennell for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Fennell v. State, 51 Ala.App. 23, 282 So. 2d 373 (8 Div. 340).
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | August 30, 1973 |
f143ce25-5614-4c71-961c-e9fa8c1fffd2 | Upshaw v. State | 277 So. 2d 919 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 919 (1973)
In re Marcus UPSHAW
v.
STATE. Ex parte Marcus Upshaw.
SC 365.
Supreme Court of Alabama.
May 17, 1973.
E. C. Herrin, Birmingham, for petitioner.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Petition of Marcus Upshaw for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Upshaw v. State, 50 Ala.App. 172, 277 So. 2d 917.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | May 17, 1973 |
b2ea9ced-7724-4a0b-8f7d-d3ea30befa0e | Kennedy v. State | 277 So. 2d 878 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 878 (1973)
Lamarrison KENNEDY, alias Lamorrison Kennedy
v.
STATE of Alabama.
SC 303.
Supreme Court of Alabama.
May 10, 1973.
*879 Donald E. Brutkiewicz, Mobile, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
JONES, Justice.
This case was transferred to the Supreme Court from the Court of Criminal Appeals on March 26, 1973.
Lamarrison Kennedy, alias Lamorrison Kennedy, was convicted of robbery and sentenced to ten years in the penitentiary. Kennedy and an unidentified accomplice were alleged to have robbed a convenience store in Prichard, Alabama, on February 10, 1972. The two employees of the store and several police officers were called as witnesses for the state. The defense presented no witnesses in his behalf.
Appellant first alleges error in that the trial court improperly refused to allow the defense to have a separation agreement[1] marked as an exhibit for identification. Appellant also contends that the trial court erred in refusing defendant's motion for a mistrial for that a separation agreement was signed by the defendant and his attorney in the presence of the jury in violation of Title 30, § 97(1), Code of Alabama 1940 (Recompiled 1958).
We are unable to agree with either of appellant's contentions. The separation agreement is part of the record proper on appeal and is before this Court. The trial court did not err in refusing to allow it to be marked as an exhibit for identification. The purpose and intent of Title 30, § 97(1) is twofold: (1) to prevent the defendant from being prejudiced by the jury's knowledge that he has refused to consent to their separation; and (2) to prevent the jury from showing undue favoritism to a defendant by reason of knowledge that he has consented to their separation. We have searched the record carefully and can find no evidence that the jury heard anything to indicate whether the defendant agreed or refused to agree to their separation. The above statute does not prohibit the mere signing of a separation agreement in open court. Segers v. State, 283 Ala. 682, 220 So. 2d 848.
Appellant alleges error in the refusal of the trial court to give certain written charges requested by the defendant.
Defendant's requested charge number one (1) which was refused is as follows:
It was proper for the trial court to refuse the above charge because it pretermitted corroboration of the named witness by other evidence. Hamilton v. State, 147 Ala. 110, 41 So. 940; Turner v. State, 43 Ala. App. 42, 179 So. 2d 170.
Defendant's requested charges numbered 2, 5, 6, 8, 10 and 11 were properly refused by the trial court because the principles of law expressed therein were substantially covered in the trial court's oral charge to the jury. Gautney v. State, 284 Ala. 82, 222 So. 2d 175; Kemp v. State, 278 Ala. 637, 179 So. 2d 762.
*880 Defendant's requested charges numbered 3, 4, 9, and 13 are substantially the same and will be considered together. Charge 4 is illustrative of this group of charges and reads as follows:
This charge was held good in the case of Prater v. State, 107 Ala. 26, 18 So. 238. Several subsequent cases have considered similar charges but most of these included the additional words "unless corroborated by testimony not so impeached". Seawright v. State, 160 Ala. 33, 49 So. 325; Wynne v. State, 155 Ala. 99, 46 So. 459; Clayton v. State, 23 Ala.App. 150, 123 So. 250. At first glance these additional words, and the fact that the Prater case appears to have involved only one witness for the State, seem to give significance to the "corroboration clause" in the later and multi-witness cases. After a more careful analysis, however, we are at the conclusion that such additional words are merely coincidental and not essential to the validity of such a charge. We do not interpret the rationale of Prater as having been dependent upon a single witness situation. By requesting these four charges, the defendant was rightfully asking the trial court to instruct the jury that they may disregard the testimony of an impeached witness. This they may do whether his testimony is corroborated by other witnesses or not. Each of the defendant's requested charges here considered were correct statements of law and should have been given.
Having determined that the trial court improperly refused charges 3, 4, 9, and 13, we now consider them in light of Supreme Court Rule 45 to decide if such error requires a reversal of this cause. Rule 45 is as follows:
It is well established that under Rule 45 an appellant must not only show error but must also demonstrate that such error was probably injurious. State v. Hodge, 280 Ala. 422, 194 So. 2d 827; Kabase v. State, 244 Ala. 182, 12 So. 2d 766. This Court has held that the refusal to give a correct requested written charge does not per se import injury and we are authorized to reverse only when the error complained of "has probably injuriously affected substantial rights of the parties", and this is to be determined only "after an examination of the entire cause". Morgan County v. Hill, 257 Ala. 658, 60 So. 2d 838; Turner v. State, 238 Ala. 352, 191 So. 396.
In the instant case we have a defendant charged with robbery. One of the State's witnesses, Dixon, was the manager of the store which the defendant allegedly robbed. On cross examination defense counsel attempted to impeach Dixon by showing that he had previously been convicted of crimes involving moral turpitude. The requested charges now under consideration were obviously intended to inform the jury that, because of Dixon's prior convictions, his testimony could be disregarded if the jury chose not to believe him. To determine if their refusal was probably prejudicial to the defendant, we must examine what other evidence was before the jury, remembering that the defendant offered no witnesses in his own behalf.
Mrs. Smith, an employee in the store, gave her account of the robbery and it coincided with Dixon's account in every material *881 detail, including the positive identification of the defendant at the trial. Various police officers testified that the defendant was apprehended within two miles of the store and in less than 30 to 40 minutes after the holdup. At the time of his capture the defendant's pockets were full of money, he had a Smith & Wesson snub-nosed .38 caliber revolver in his possession (the same type gun Dixon and Mrs. Smith had described to the police earlier), and Dixon's wallet was found in the defendant's back pocket. In view of the fact that Dixon's testimony was fully corroborated by Mrs. Smith, and upon consideration of all the evidence in this case, we have concluded that the refusal of charges 3, 4, 9, and 13 requested by the defendant, while error, was not such error as to have probably injuriously affected the rights of the defendant. We feel that for the defendant to have been prejudiced by such error, the jury would have had to have disregarded every shred of the totally uncontradicted evidence presented by the State. Therefore, we hold the trial court's refusal to give defendant's requested charges 3, 4, 9, and 13 constituted harmless error and this case will not be reversed on their account.
The trial court did not err in refusing to give defendant's requested charge number 15 for the reason that it is substantially the same as defendant's requested charge 12 which was given. Butler v. State, 285 Ala. 387, 232 So. 2d 631; Cooper v. State, 277 Ala. 200, 168 So. 2d 231.
In addition to the matters heretofore discussed, the Court has carefully reviewed the entire record for error and, finding none, the cause is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX, McCALL, and FAULKNER, JJ., concur.
BLOODWORTH, J., concurs specially.
COLEMAN, J., dissents.
BLOODWORTH, Justice (concurring specially):
I would agree that the refusal to give charge 4 did not constitute reversible error, but for another reason, namely, that there was no evidence that the witness, Dixon, was of "bad character," as the charge suggests the jury might find from the evidence. The testimony was to the effect that he had been convicted of a crime involving moral turpitude.
Such evidence is received solely as it might affect the witness Dixon's "credibility as a witness." Holloway v. State, 43 Ala.App. 153, 182 So. 2d 906 (1965); Title 7, § 434, Code of Alabama 1940; 6A Ala. Dig., Criminal Law. It is not per se evidence of his bad character. One may have bad character and never have been convicted of a crime involving moral turpitude. On the other hand, one may have been convicted of a crime involving moral turpitude and yet might be able to produce witnesses who would swear to his good character.
In the case of Prater v. State, 107 Ala. 26, 18 So. 238 (1894), it was held reversible error to refuse a charge identical to the charge in the instant case. However, in Prater, the witness' bad character was proved. Thus, it was that this court held the charge should have been given. Prater is not apt authority for a reversal here.
Therefore, I conclude that the refusal of defendant's requested charge 4 was not reversible error because the charge was "abstract" under the evidence.
[1] Title 30, § 97(1), Code of Alabama 1940 (Recompiled 1958) provides that the trial court in its discretion and with the written consent of the defendant and defendant's counsel may permit the jury trying a felony case to separate during the pendency of the trial, whether the jury has retired or not. | May 10, 1973 |
dfd8710e-5067-462d-ac8d-c62d3134fb9e | Galleon Industries, Inc. v. Lewyn MacHinery Co. | 279 So. 2d 142 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 142 (1973)
In re GALLEON INDUSTRIES, INC. and Central Bank and Trust Co., Inc.
v.
LEWYN MACHINERY CO., INC. Ex parte LEWYN MACHINERY COMPANY, INC.
SC 348.
Supreme Court of Alabama.
May 24, 1973.
H. Edwin Holladay, Pell City, and Fred Blanton, Birmingham, for petitioner.
No brief for respondents.
Petition of Lewyn Machinery Co., Inc. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Galleon Industries, Inc. and Central Bank and Trust Co., Inc. v. Lewyn Machinery Co., Inc., 50 Ala.App. 334, 279 So. 2d 137.
JONES, Justice.
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | May 24, 1973 |
b391db06-1a23-4e26-a6d7-95933cf437bc | Baldwin v. Odom | 278 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 713 (1973)
Elvira Smith BALDWIN et al.
v.
Virginia Wilson ODOM et al.
SC 257.
Supreme Court of Alabama.
May 24, 1973.
Gray, Seay & Langford, Montgomery, for appellants.
No brief for appellees.
COLEMAN, Justice.
Respondents appeal from an adverse decree in suit to quiet title to a parcel of land described as follows:
The bill of complaint was filed November 5, 1971. Complainants Virginia Wilson Odom and Hugh E. Wilson, Jr. allege that Virginia Wilson Odom is the record owner in fee simple subject to a reservation for life to Hugh E. Wilson, Jr. of all minerals and timber. Complainants further allege that respondents, as heirs of one Adam Smith, claim or are reputed to claim some right, title, or interest in the land.
Respondents answer that they are the heirs of their father, Clarence Smith, Sr., deceased, who died in 1939 and was the only son and legal heir of Adam Smith and his wife, the original record owners of the land. Respondents allege that they claim title through their father.
Complainant Hugh E. Wilson, Jr. testified that in 1958 he purchased the land from Dan Coleman who was living on it at that time. A copy of the deed from Coleman to Wilson was introduced in evidence. The deed is dated September 5, 1958. It was filed for record in the office of the Judge of Probate September 10, 1958. Wilson testified that he also owned other land adjoining the land in suit.
*714 Wilson further testified that he began paying taxes on the land in suit in 1958; that he has continually assessed the land for taxation and paid taxes on it each year thereafter; that he personally paid off a mortgage on the land to Planters Bank at Thomaston; that the bank cancelled the mortgage upon his payment of it; that from 1958 until August, 1970, he had no knowledge that any third parties were claiming title to the land; that in August, 1970, he received a letter from the tax assessor stating that Elvira Smith Baldwin had assessed the land to the estate of Adam Smith and had stated that she was an heir of Adam Smith; that the letter was the first notice Wilson had that there were other claims to the land.
Wilson further testified that in December, 1959, he planted pine trees on the land; that, in his judgment, timber growing was the best use to which the land was suited; that he has sold two loads of hardwood pulpwood off the land; that he has "planted a spot" and used the land for recreation and hunting; that all of his land, including this forty, was enclosed by fence except six acres; that he put a fence all around the 120 acres some years ago; that as you enter the property there is a large tin sign stating that it is owned "by us and no trespassing"; that the signs have been up since he purchased the property; and that he has given permission to hunt on the land to Larry Walters who looks after the place and had a man arrested for killing a doe deer on the place.
The chief clerk in the office of the tax assessor testified that Wilson first assessed the land in suit October 1, 1958, for the 1959 tax year, and thereafter the land has been continuously assessed to Wilson; that in 1970 there was another assessment, a double assessment, made on this particular land; and that "A 1928 ownership township plat shows Adam Smith as the owner."
Larry Walters testified that he owns land adjoining Wilson's land with which the witness is familiar; that he is familiar with the land in suit and has known it "Since the fifties"; that he has been familiar with it since 1958 to date; that everybody knew Wilson owned it; that he has never known of any adverse claimants to the land; that the best use of the land in suit is timber growing; and that there are "no trespassing" signs all around Wilson's property.
Lee Kirkham testified that he knew the land in suit; its best use was timber growing; that there are "no trespassing" signs on the boundaries of the property; that since 1958 Wilson is the only one who claimed to own the land; that he did not know Clarence Smith who lived on the land but did know a Clarence Smith that used to work at "the Ford place" and went to Montgomery; and that he does not and did not know Adam Smith.
Respondent Elvira Smith Baldwin testified that she lived in Montgomery and had lived there continuously for 22 years since May, 1948; that she is an heir of Adam Smith through her father, Clarence Smith; that she was born on the land in suit; that her brothers and sisters were born there; that Dan Coleman was living on the property with them; that it was in "the early thirties"; that her parents died in 1931 and 1939; that Dan Coleman continued to live on the property; that they allowed him that courtesy; that he had no interest in the property in suit; that the witness was the last of the family to leave the property; that she married in 1948 and went to Montgomery; that Dan Coleman continued to live on the land; that she gave him money to pay the taxes; that 1948 was the last time she paid the taxes herself; that she did not know that he was claiming the property as his own until December, 1963; that she contacted a lawyer in Linden in 1966 and paid him to look into the matter, and in 1968 paid him $25.00 and gave him a note for $725.00 as a fee, payable $60.00 per month; that she paid $25.00 on the note. Two receipts and the note were offered in evidence. The word "VOID" is written on the note. She *715 testified that the attorney marked the note void; that he told her he could not represent her and returned the note to her; that in 1969 she paid taxes on the land for six years back; that from 1948 to 1964 taxes had not been paid "in the name of the Estate"; that she trusted Dan Coleman to pay the taxes; that she had been on the land since 1948 continually until "1959 1958" and was there in 1964; that in 1964 she saw a no trespassing sign; that she visited Dan Coleman frequently; that he moved off the land in 1962 and moved to Linden; that he made no statement to her about selling the land until 1964; that he died in 1965 or 1966.
The respondents argue that the evidence is insufficient to support a claim of ownership by adverse possession and the decree appealed from should be reversed.
The evidence was heard ore tenus by the trial court. We are of opinion that the evidence so heard in the instant case is sufficient to support a finding that complainants had acquired title by adverse possession under a deed from a grantor in possession, purporting to convey title to complainant Wilson, duly recorded in the county in which the land lies for ten years before the commencement of the suit, and also that he had annually assessed the land for taxation and paid the taxes for ten years prior to commencement of the suit. See Title 7, § 828, Code 1940.
All acts of a possessory nature committed by the adverse claimant are to be considered collectively rather than independently in determining the sufficiency of his possession. W. T. Smith Lumber Company v. Cobb, 266 Ala. 146, 94 So. 2d 763.
Where the evidence is heard ore tenus by the trial court, every presumption will be indulged in favor of the trial court's findings of fact which will not be disturbed unless palpably wrong. Payne v. Payne, 284 Ala. 699, 228 So. 2d 15; see many cases cited in Alabama Digest, Appeal & Error. We cannot say that a finding in the instant case that complainants had acquired title by adverse possession for ten years is palpably wrong. Accordingly, the decree appealed from is due to be affirmed.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, McCALL, and JONES, JJ., concur. | May 24, 1973 |
0a6475a6-0935-4709-8596-0c676a3925bc | Gilliland v. State | 277 So. 2d 901 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 901 (1973)
Odell GILLILAND
v.
The STATE of Alabama.
SC 362.
Supreme Court of Alabama.
May 17, 1973.
*903 Hanson & Allen, Albertville, for appellant.
William J. Baxley, Atty. Gen., and George M. Van Tassel, Jr., Asst. Atty. Gen., for the State of Alabama.
FAULKNER, Justice.
Undercover agent Elverd Gosdin and Lamar Pritchett asked Odell Gilliland whether he had any pills. Gilliland stated:
Thirty minutes later, the duo came to Gilliland's house and bought six pills for $3.00, including five black amphetamine capsules.
Odell Gilliland was tried by jury, convicted of selling amphetamine, and sentenced to three years in the penitentiary. He appealed to the Alabama Court of Criminal Appeals, from whence the cause was transferred to this Court.
There is no dispute as to the facts. Appellant asserts seven purported errors of law: (1) Denial of a motion for change of venue on the grounds of prejudicial pretrial publicity; (2) undue restriction of the examination of prospective jurors; (3) a remark by the court during the trial, "You haven't shown entrapment anywhere so far"; (4) a variance between indictment and proof as to who bought the drugs; (5) improper comment by the district attorney in closing argument; (6) overruling of a motion for a new trial; and (7) refusal of an instruction that defendant could not be convicted on the uncorroborated testimony of the undercover agent.
A defendant in this State is entitled to have his trial removed to another county, if he cannot have a fair and impartial trial in the county in which the indictment is found. Title 15, § 267, Code of Alabama 1940, Recompiled 1958. Appellant argues that two weeks of newspaper, radio, and television publicity about a "mass crack-down" on "pushers" in his area made it imperative that his trial be switched to another county. In support of his contention, he states that two jurors in another case in Marshall County asked to be excused because they could not render a just verdict on marijuana charges.
Our statute provides that this Court's review of the trial court ruling is to be de novo, without any presumption in favor of that ruling. Title 15, § 267, supra. However, the burden was on the defendant to show to the trial court that a fair trial could not be expected. Welch v. State, 28 Ala.App. 273, 183 So. 879 (1938). Let us proceed to examine the matter as if in the shoes of the trial judge.
*904 The policy of our change of venue statute balances the inconvenience and administrative inefficiency of a change with the knowledge that certain crimes so arouse the public in a particular locality that a fair trial there is impossible. A study of the cases reveals that these crimes are invariably of a notorious or spectacular nature, involving violence to the person: specifically, murder and rape. Beecher v. State, 288 Ala. 1, 256 So. 2d 154 (1971); Thompson v. State, 117 Ala. 67 (1897). Criminal activity in which no one is hurt or killed, while distasteful to the public, does not seem to arouse quite the same passions. An obscure sale of six pills for $3.00, such as we have here, appears to fall safely in the latter category.
Furthermore, it was admitted by defense counsel that none of the publicity about the "crack-down" on drug offenders related to the defendant; in fact, his name was never mentioned. In light of these factors, we think that defendant did not carry his burden and that the trial court's ruling denying a change of venue was correct. If an adverse public attitude to crime in general were held to mandate a change in venue, the venue would be bouncing around from now until the end of days, because there is an adverse public attitude towards crime in every county in Alabama.
During the selection of the jury one of the attorneys for the defendant, Mr. Allen, began to ask a series of questions of the first of more than fifty prospective jurors. The following dialogue then occurred:
Examination of jurors takes place "under the direction of the court." Code, Title 30, § 52. His rulings will not be disturbed unless constituting an abuse of discretion. Aaron v. State, 273 Ala. 337, 139 So. 2d 309 (1961).
In light of the large amount of time required to individually examine more than fifty prospective jurors, and the availability of a satisfactory alternative method, that suggested by the judge, we find no abuse of discretion in his ruling in this case. McPhearson v. State, 271 Ala. 533, 125 So. 2d 709 (1960).
At trial, over the objection of the State, the court permitted testimony as to other illegal drug activity, on defendant's contention that he could "show a connection in the defense of entrapment." In the middle of this testimony, the State objected again:
There was no objection by appellant to the statement made by the court. There was no move by appellant to exclude the statement, nor any motion made to instruct the jury to disregard the statement. No error appears on this point. Nichols v. State, 267 Ala. 217, 100 So. 2d 750 (1958).
*905 Appellant alleges a fatal variance between indictment and proof as to who bought the amphetamine, charging that Lamar Pritchett was the vendee, not Elverd Gosdin, the undercover agent mentioned in the indictment.
The record contradicts this claim. Gosdin testified as follows:
We think, from this record, that the defendant could be convicted of selling to Gosdin.
Much ado is made about a "prejudicial" and "sinister" remark made by the assistant district attorney in closing argument. We frankly do not know what the remark was, and the record does not tell us. Nothing is presented for review.
Appellant contends that his motion for a new trial should have been granted on the grounds that entrapment was established as a matter of law. We note that the entrapment issue was submitted to the jury with a legally correct charge thereon, and hold that the jury could conclude as it did. The statements of the defendant, e. g. "If you can't get them [pills] up there, come back by the house" hardly indicate a timid, law-abiding soul forced into crime by the overwhelming pressures of cruel and tricky law enforcement agents.
Appellant complains of refusal of a requested charge to the effect that his client could not be convicted by the uncorroborated testimony of the undercover agent, Mr. Gosdin. He invokes Title 15, § 307 of our Code, regarding uncorroborated accomplice testimony.
The undercover agent in this case was not an accomplice of the defendant. Brown v. State, 44 Ala.App. 135, 203 So. 2d 700 (1967). He could not be indicted and convicted for the crime, either as principal or accessory. Miller v. State, 290 Ala. 248, 275 So. 2d 675 (1973). Furthermore, the agent's testimony was corroborated in this case by other officials to whom he transmitted the contraband.
We discover no error in the record. The judgment is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | May 17, 1973 |
0ffcc2ae-c686-4695-b0aa-2cbcf746e7af | Brown v. State | 280 So. 2d 182 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 182 (1973)
In re Herbert Louis BROWN and Arthur Lee Gipson, alias
v.
STATE.
Ex parte Herbert Louis Brown and Arthur Lee Gipson.
SC 423.
Supreme Court of Alabama.
June 28, 1973.
David L. Barnett, Mobile, for petitioners.
No brief for the State.
*183 HEFLIN, Chief Justice.
Petition of Herbert Lewis Brown and Arthur Lee Gipson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Brown and Gipson, alias v. State, 50 Ala.App. 471, 280 So. 2d 177.
Writ denied.
COLEMAN, BLOODWORTH, McCALL and FAULKNER, JJ., concur. | June 28, 1973 |
3888b63d-5e8e-419e-a3cf-4db9680a6566 | Prince v. State | 279 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 549 (1973)
In re Thomas R. PRINCE
v.
STATE. Ex parte Thomas R. Prince.
SC 393.
Supreme Court of Alabama.
June 7, 1973.
Robert R. Bryan, Birmingham, for petitioner.
No Brief for the State.
MADDOX, Justice.
Petition of Thomas R. Prince for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Prince v. State, 50 Ala.App. 368, 279 So. 2d 539.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | June 7, 1973 |
675208f1-157f-40cd-b5a9-2dcb4462e0cc | Fletcher v. State | 277 So. 2d 882 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 882 (1973)
Alvin FLETCHER SC 318.
v.
The STATE of Alabama.
Supreme Court of Alabama.
May 10, 1973.
William D. Jetton, Guntersville, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
This is a 1971 Alabama version of the Eternal Triangle. Oliver Conley was "dating" Mrs. Alvin "Poss" Fletcher. Mr. Fletcher asked a sheriff how much time he would get for murdering Conley. Conley told his father, in response to a warning, that there wasn't any danger because "all them folks over there liked him." Fletcher told a relative: "I've had all I can stand." *883 Conley stepped out in front of a grocery store. Fletcher shot him through the chest. Conley fell on the floor and died.
Alvin "Poss" Fletcher was tried by jury, found guilty of second-degree murder, and sentenced to twenty years in the penitentiary. He appealed to the Alabama Court of Criminal Appeals, from whence the cause was transferred to this Court.
Six purported errors are complained of on appeal: (1) denial of a continuance to allow appellant's mother-in-law to testify; (2) undue restriction of the questioning of prospective jurors; (3) a remark by the trial judge: "If you gentlemen don't hurry and get this jury struck, I'll strike it myself;" (4) a ruling that a photograph of the deceased prior to the homicide was inadmissible; (5) failure by the State to prove that the gunshot was the cause of death; and (6) that the verdict of the jury was contrary to the weight and preponderance of the evidence.
A motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed unless clearly abused. Peaden v. State, 275 Ala. 72, 152 So. 2d 136 (1963); Aaron v. State, 271 Ala. 70, 122 So. 2d 360 (1960). The record in the instant case shows that the defendant was granted a continuance on September 27, 1971 because of illness of a prospective witness. On November 29, defendant moved for another continuance, because Agnes Treece, the defendant's mother-in-law, was hospitalized. This motion was denied by the trial judge. A statement of what her testimony would be was later admitted by stipulation. We find no clear abuse of discretion in the overruling of the motion for a continuance.
Appellant complains of alleged undue restriction of his questioning of prospective jurors. He does not argue the point in brief, or specify as to how this restriction took place. In defense questioning of prospective jurors covering 12 pages of transcript, there were only three occasions that a prosecution objection was sustained. Defense counsel was not permitted to take the names of those who had previously served on juries. Further, objections to two questions as to whether the jury understood the insanity defense were sustained.
Our statutes provide for examination of jurors as to "qualifications, interest, or bias" and "any matter that might tend to affect their verdict." Title 30, § 52, Code of Alabama 1940, Recompiled 1958. The scope of examination permitted is within the sound discretion of the trial judge. Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941); Louisville & N. R. Co. v. Davis, 236 Ala. 191, 181 So. 695 (1938). By the explicit terms of the statute itself, we find no abuse of discretion in curtailing the inquiry concerning prior jury service, or in sustaining objections to the two legal questions asked of the jury.
Appellant complains of a remark by the court, "If you gentlemen don't hurry and get this jury struck, I'll strike it myself."
As discussed in the recent case of Allen v. State, 290 Ala. 339, 276 So. 2d 583 (1973), the trial judge is not required to be a robot without emotional reaction to happenings in his courtroom. Impatience with excessive delay by counsel is a natural and understandable reaction. We see no prejudicial effect on defendant's rights, especially since the judge's rebuke was directed towards both attorneys, the prosecutor as well as the defense counsel.
Photographs are admissible into evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. Knight v. State, 273 Ala. 480, 142 So. 2d 899 (1962). Their admission is within the sound discretion of the trial judge. We can discover no error in his ruling against allowing into evidence a *884 photograph of Conley, the victim, while alive.
Appellant contends that the cause of death was never proven as a matter of law.
In the words of the late Judge Annie Lola Price, in Gurley v. State, 36 Ala.App. 606, 608, 61 So. 2d 137, 138 (1952):
We think that under all the evidence testified to by the witnesses that the jury was fully warranted in finding that Conley died of a gunshot wound inflicted by the defendant.
Finally, appellant insists that the verdict of the jury was contrary to the evidence.
The grocery store owner, Mr. Lowe, testified as follows:
Also in evidence was a statement by the defendant to lawmen: "Boys, I shot him and I'm not going to give you any trouble."
At no point did defendant deny shooting Conley, or present any evidence whatever to that effect. The jury verdict of guilty was amply supported by the evidence.
No error appearing on close examination of the record, the judgment and sentence are affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | May 10, 1973 |
18423de6-6600-4a9f-b9d6-7eda2f9bac3a | Williams v. Clark | 279 So. 2d 526 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 526 (1973)
In re Charles W. WILLIAMS
v.
E. L. CLARK. Ex parte Charles W. Williams.
SC 416.
Supreme Court of Alabama.
June 21, 1973.
Charles W. Williams, pro se.
No brief for respondent.
HARWOOD, Justice.
Petition of Charles W. Williams for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Williams v. Clark, 50 Ala.App. 352, 279 So. 2d 523.
Writ denied.
HEFLIN, C. J., and MERRILL, COLEMAN and FAULKNER, JJ., concur. | June 21, 1973 |
9b6a6cbc-9863-470b-bb8f-22600cddefaf | Mutual Savings Life Insurance Company v. Noah | 282 So. 2d 271 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 271 (1973)
MUTUAL SAVINGS LIFE INSURANCE COMPANY, a corporation,
v.
Donald R. NOAH.
S.C. 105.
Supreme Court of Alabama.
June 7, 1973.
Rehearing Denied August 30, 1973.
*272 J. Gusty Yearout, Birmingham, for appellant.
Thomas E. Maxwell, Birmingham, for appellee.
HEFLIN, Chief Justice.
This is a declaratory judgment action in equity in which the appellee-complainant, Donald R. Noah, alleges in his bill of complaint that he is the named beneficiary in three policies of insurance issued by the appellant-respondent, Mutual Savings Life Insurance Company; that the life of William L. Noah, the brother of the appellee-complainant, was insured under each of these policies; that the insured died by drowning in the City of Galveston, Texas, while the policies were in force; and that the appellant-respondent insurance company refused to pay the amounts due under any of said policies (except that a partial payment was made on one of them). The bill seeks a decree construing the policies and declaring the rights of the appellee-complainant and the obligations of the appellant-respondent insurer thereunder, and ultimately that the court declare that the insurer is obligated to pay the death benefits and the balance of the burial benefits prescribed under one of the policies, plus the accidental death benefits provided in all three.
Copies of the three policies were attached as Exhibits A, B and C, respectively, to the bill. Since the evidence showed that such policies were issued and were in accordance with and contained the terms set forth in said exhibits, these exhibits will be referred to as showing the terms and conditions of the policies and as describing the policies in question.
Exhibit A provides for a death benefit of $1,500 and double that sum in case of accidental death, amounting to $3,000. It is provided therein that William L. Noah, who the evidence shows met death by drowning in or near Galveston, Texas, on September 13, 1971, is named therein as the insured and the appellee-complainant is named as the primary beneficiary. The policy bears date of February 15, 1971, which under the evidence is to be taken as the date of issuance.
Exhibit B shows a policy with the same date of issuance and the same terms and beneficiary as that contained in Exhibit A, except that the ordinary death benefit is $1,000 and the accidental death benefit is in double that amount, $2,000. Each of the two policies is characterized as a "Twenty Pay Life Insurance Policy."
Exhibit C is entitled a "Burial Insurance Policy," and provides that the insurer will furnish described funeral services, including, among other things, a casket, if the *273 death of the insured, William L. Noah, should occur within the State of Alabama and within 35 miles of an authorized funeral director. There is the further provision that if the insured's death occurs outside the State of Alabama or more than 35 miles from an authorized funeral director, the company agreed to pay to the beneficiary (Donald) one-half of the retail value of the policy as a cash payment. Since the retail value of the policy is $600, the cash payment to the beneficiary for a death outside the State would be $300. However, there is a further provision that in a case of accidental death the company would pay an additional amount equal to one-third of the retail value, which in this case would be an additional sum of $200, meaning a total cash payment of $500. The date of issuance was February 15, 1971, the same date as the other two policies.
The evidence shows that the beneficiary, Donald R. Noah, by written instrument dated September 16, 1971, declared that he became indebted to Kilgore Funeral Home, Pell City, Alabama, for funeral services and supplies for the burial of William I. Noah in the amount of $434.66, and he thereby assigned unto said funeral firm that amount out of the proceeds of the said burial policy, authorizing Mutual Savings Life Insurance Company to make its check payable to said firm for the assigned amount and directing it to pay the remainder of the proceeds of the policy to the beneficiary, Donald R. Noah. If this burial policy is held to be effective, unquestionably the obligation of the insurer has been partially discharged up to the amount of $434.66, and the insurer owes the beneficiary the unpaid balance of the maximum benefit of $500 due thereunder, viz., $65.34 with interest thereon.
The respondent in its answer and the amendment thereto denies liability under the policies on the ground that the complainant and beneficiary obtained the policies of insurance on his brother's life and that he had no insurable interest which would entitle him to recover, and also on the ground that the policies had lapsed for non-payment of premium.
The trial court rendered a judgment in favor of the appellee-complainant and against the appellant-respondent on all three policies in the total amount of $5,065.34, consisting of $5,000 under the life policies (Exhibits A & B), and $65.34 under the burial policy (Exhibit C), with interest from October 6, 1971, specified as the date the appellant-respondent denies liability.
The most divisive issue with which this court is faced is presented by appellant-respondent's contention that Donald R. Noah has no insurable interest in the life of the insured, and that each of the three policies was invalid by reason thereof. It may be well to note at the outset that this court holds the burial policy not to be subject to the insurable interest requirement. The public policy grounds for requiring an insurable interest, which are discussed below, are not applicable to a burial policy wherein the benefits are substantially restricted to providing burial services. For this reason, it is the named insured in such a policy who is in reality the recipient of the insurance benefits, not the named beneficiary. Jordan's Mutual Aid Association v. Edwards, 232 Ala. 80, 166 So. 780. But, even if it could be said that the burial policy is subject to the insurable interest requirement, this court holds, for the reasons stated below, that Donald R. Noah did have an insurable interest in William's life.
Under the evidence the two life policies were procured or "taken out" (an expression used in our cases) by the beneficiary, and thus the long-established rule that the insurance is invalid unless the beneficiary has an "insurable interest" in the life of the insured applies. This rule is to the effect that a person has an unlimited insurable interest in his own life and may designate any person as his beneficiary so long as the insurance was procured or taken out by the insured and the premiums paid by him, but one taking out a policy of *274 insurance for his own benefit, on the life of another person, must have an insurable interest in the continuance of the life of such insured. National Life & Accident Ins. Co. v. Alexander, 226 Ala. 325, 147 So. 173; Tit. 28A, § 316, Code of Alabama, 1940 (Recomp. 1958).[1]
Several reasons have been assigned as the basis for the insurable interest requirement, both of which are grounded upon public policy considerations: a policy taken out by one for his own benefit on the life of another, in whom he has no insurable interest is, in substance, a wagering contract; and such a policy may hold out a temptation to the beneficiary to hasten by improper means the death of the insured. Commonwealth Life Insurance Co. v. George, 248 Ala. 649, 28 So. 2d 910; Helmetag's Adm'x v. Miller, 76 Ala. 183.
Certain blood relationships have been held sufficient, in and of themselves to negate the supposition that the beneficiary would take out such a policy for the purpose of wagering on the insured's death, or that such a policy would entice the beneficiary to take the insured's life, and in such cases the relationship alone is said to create an insurable interest. This is true notwithstanding the fact that the beneficiary may have no reasonable expectation of pecuniary advantage through the continued life of the insured or consequent loss by reason of his death, which would otherwise be required in order to find an insurable interest.
The relationship of husband and wife has been held to be sufficiently close to give either an insurable interest in the life of the other. Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251. The parent-child relationship has been accorded the same status as that given to husband and wife in Jennings. Warnock v. Davis, 104 U.S. 775, 26 L. Ed. 924; 44 C.J.S. Insurance § 204.
On the other hand, the following relationships have been held not to create an insurable interest on the basis of such relationship alone. Cousin and cousin, National Life & Accident Ins. Co. v. Alexander, 226 Ala. 325, 147 So. 173; beneficiary has no interest in the life of the wife of his wife's brother, National Life & Accident Ins. Co. v. Middlebrooks, 27 Ala.App. 247, 170 So. 84; aunt and niece, Commonwealth Life Ins. Co. v. George, 248 Ala. 649, 28 So. 2d 910; aunt-in-law and niece, Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696; niece and uncle, Bell v. National Life & Accident Ins. Co., 41 Ala.App. 94, 123 So. 2d 598.
The specific issue presented in the case under review is whether one has an insurable interest in the life of his brother by virtue of the relationship alone. While realizing that this issue is one of first impression in Alabama, and that other jurisdictions are in conflict on this matter, a review of the holdings of other states has convinced this court that the vast majority[2] and best reasoned holdings support the proposition that the brother-brother relationship will, in and of itself, support an insurable interest.
Before reviewing the holdings and rationale of other jurisdictions it may be well *275 to comment upon the United States Supreme Court's holding in Aetna Life Ins. Co. v. France, 94 U.S. 561, 24 L. Ed. 287 (1876), wherein the beneficiary-sister, Lucetta P. France, although not dependent upon her brother, Andrew J. Chew, the insured, for her support, had loaned him some $6,000. The policy stated that the insured had paid the first premium, and several subsequent annual premiums were paid by him, with the beneficiary contributing to the payment of the last three premiums.
It has been suggested that although the United States Supreme Court upheld the policy, its decision would have been otherwise had the beneficiary herself procured the policy on the life of her brother, as she would have no insurable interest in his life in the absence of some showing of dependency or pecuniary interest. France, supra, can not be so interpreted for two reasons. First, the court in France, expressly waived the issue whether the beneficiary could have taken out the policy in her own name on the life of her brother merely as his sister. Second, if any inference is to be drawn as to what the court might have held had the beneficiary taken out the policy in her own name, it must be that such policy would be upheld, for the court stated:
Also, the France holding has been cited by many state courts which will be referred to later, as authority for the proposition that one has an insurable interest in the life of his brother solely by virtue of the relationship alone. It is also cited at 43 Am.Jur.2d p. 540 for this same proposition.
As to what blood relationships are sufficiently close to support an insurable interest, that of brothers is admittedly a borderline case. Equitable Life Assur. Soc. v. Hazlewood, 75 Tex. 338, 12 S.W. 621 (1889). The Court in Hazlewood, although stating that brothers and sisters were "on the dividing line", refused to hold there was no insurable interest by virtue of the relationship alone. Although the insured was indebted to the beneficiary, the amount of the debt represented less than one-tenth of the proceeds of the policy. Any doubt as to the position Texas had taken in the wake of Hazlewood was later resolved in Williams v. Fletcher, 26 Tex.Civ.App. 85, 62 S.W. 1082 (1901), wherein the Texas court held that a brother does have an insurable interest in the life of his brother by virtue of the relationship alone.
The reason most often assigned as the basis of a holding that such relationship will, in and of itself, support an insurable interest is that the natural love and affection prevailing between the two and the expectation that one will render the other aid in time of need is sufficient to overcome any wagering contract argument, as well as any impulse to hasten the death of the insured. This rationale was well stated in Century Life Ins. Co. v. Custer, 178 Ark. 304, 10 S.W.2d 882 (1928), as follows:
This view was adopted by Kentucky in Hahn v. Supreme Lodge of the Pathfinder, 136 Ky. 823, 125 S.W. 259 (1910), wherein the court stated that an insurable interest may arise from blood relationship alone without regard to whether the beneficiary has any pecuniary interest in the life of *276 the insured or is dependent upon him. If blood relationship alone constitutes an insurable interest, certainly, the court reasoned, the relationship of one brother to another, is sufficiently close for that purpose. The court concluded as follows:
Pennsylvania's position on this issue was left in doubt by Bonistalli v. Bonistalli, 269 Pa. 8, 112 A. 7 (1920), wherein a joint policy was taken out by two brothers, who were partners in business, payable to the survivor. The court upheld the policy stating that "[t]he policy was properly issued to protect the firm, and, considering their blood relation and joint business affairs, Joseph [the beneficiary] had an insurable interest in the life of his brother." Thus, there was no clear holding as to whether, absent such business relationship, the court would have found an insurable interest. The case of Phillips' Estate, 238 Pa. 423, 86 A. 289 (1913), which was cited for the above proposition may indicate that Bonistalli is authority for the proposition that one has an insurable interest in the life of his brother by virtue of the relationship alone, for Phillips' Estate, held the relationship of brother-sister alone sufficient to support an insurable interest, reasoning that the natural affection prevailing between brother and sister and the expectation that in case of need they will render each other aid was sufficient.
Any doubt as to Pennsylvania's position was resolved in Montgomery's Estate, 299 Pa. 452, 149 A. 705 (1930), wherein it was held that the blood relationship of brother-sister, standing alone, will support an insurable interest.
In addition to the cases cited above a number of other jurisdictions have held the blood relationship alone sufficient. Hosmer v. Welch, 107 Mich. 470, 65 N.W. 280 (1895); Hess' Adm'r v. Segenfelter, 127 Ky. 348, 105 S.W. 476 (1907) (dicta); Goodwin v. Massachusetts Mut. Life Ins. Co., 73 N.Y. 480 (1878); Lawler v. Home Life Ins. Co. of America, 59 Pa.Super. 409 (1915); Rettenmaier v. Rettenmaier, 255 Iowa 952, 124 N.W.2d 453 (1963); Webb v. Imperial Life Ins. Co., 216 N.C. 10, 3 S.E.2d 428 (1939); Rogers v. Atlantic Life Ins. Co., 135 S.C. 89, 133 S.E. 215 (1926); Woods v. Woods' Adm'r, 130 Ky. 162, 113 S.W. 79 (1908) (dicta); Hodge v. Globe Mut. Life Ins. Co., 274 Ill.App. 31 (1934); Inter-Southern Life Ins. Co. v. Stephenson, 246 Ky. 694, 56 S.W.2d 332 (1933); Lane v. Lane, 99 Tenn. 639, 42 S.W. 1058 (1879); Rombach v. Piedmont & Arlington Life Ins. Co., 35 La.Ann. 233, 48 Am. Rep. 239 (1883) (dicta); Newmore v. Western & Southern Life Ins. Co., 8 Ohio Civ.Ct. R., N.S., 308 (1906) (dicta); Trenton Mut. Life and Fire Ins. Co. v. Johnson, 24 N.J. L. 576 (1854) (dicta); Crosswell v. Connecticut Indemnity Ass'n., 51 S.C. 103, 28 S.E. 200 (1879) (dicta).
Perhaps the facts of the instant case tend to contradict the closeness and mutual love and affection which the above holdings attribute to the brother-brother relationship, but this court does not write for this case alone. The holding of this court today will govern all future cases, not just the exceptional one where the natural love and affection common to the brother-brother relationship may be missing.
In view of the foregoing it is the conclusion of this court that the brother-brother relationship will, standing alone, support an insurable interest.
This court has reviewed the holdings of various other jurisdictions[3] which are contra *277 to the decision announced by this court today, and finds that the rationale underlying these cases is that one would take out an insurance policy on the life of his brother for the purpose of gambling on the time of his death, or would, by virtue of such policy, be induced to take the life of his brother for a price, which is not, in the opinion of this court, substantiated by the common experience of mankind.
Having determined the insurable interest issue adversely to the appellant-respondent, this court now directs its attention to the question of "lapsation" presented by the insurer. The evidence disclosed that the last premium payment on the three policies in question prior to William's death was received by appellant on July 26, 1971. Clearly, by the strict language of the policy, they had lapsed and were out of benefit at the time of William's death on September 13, 1971, such date being well past the 28-day grace period. The question then is did the appellant-respondent in some way extend the period of coverage so as to render itself liable on these policies?
The Noahs had a total of eleven policies of insurance with the appellant (three on William and eight on members of the immediate family). Mrs. Noah normally wrote one check per month to pay the premiums on all eleven policies in a lump sum. On September 20, 1971, the appellant-respondent accepted a check from the Noahs for $67.26, which amount represented the August and September premiums on all eleven policies. It will be noted that on September 20, 1971, William had been dead for one week and such fact was known to the insurer. Appellant-respondent contends that even though it accepted the full $67.26 covering all eleven policies, no part of said sum was applied to the three policies in question, the necessary amount to reinstate the other eight policies being applied to them and the remainder being credited to the October payment for those eight policies. The insurer took the above actions without consulting the Noahs and made no offer to return the premium payment on William's policies to the Noah family.
In view of the circumstances presented, this court must conclude that the appellant-respondent, by retaining the September 20, 1971, payment on the three policies in question after having notice of his death, extended the period of coverage thereunder and caused itself to be liable thereon. In the case of Alabama Farm Bureau Mutual Casualty Insurance Company v. Hicks, 272 Ala. 574, 133 So. 2d 221, this court held that retention by an insurer of a past due premium payment, with knowledge that a loss was sustained during the defaulting period, constituted a waiver of the condition that premiums paid late did not cover losses sustained during the period of default and rendered insurer liable for such loss. Though Hicks involved an automobile liability policy, the basic principles found therein are applicable to the instant case. This court stated in the Hicks decision that:
Obviously, choice number 2 above has no application to the present case since the loss suffered was death and there could be no reinstatement. However, this court is of the opinion that options 1 and 3 above *278 do apply and were available to the appellant-respondent. For reasons of its own the insurer selected option 3 and is bound thereby to pay to appellee-complainant, the amount due under the two life policies as well as the full amount provided under the burial policy ($500). Counsel for the insurer might argue that the September 20 premium on the three policies in question was not "retained" but in fact credited to the Noah family account. This may be true but it was not authorized to make such a determination on its own. Consequently, since the insurer failed to tender back to the Noahs that part of the $67.26 representing the payment on William's policies, appellant-respondent by its actions elected option 3 and rendered itself liable on all three policies. Accordingly, this court holds that the insurance company is obligated to pay Donald Noah, in addition to the amount due under the life insurance policies, the balance due on the burial policy being the sum of $65.34, with interest from September 16, 1971.
Affirmed.
MERRILL, MADDOX and FAULKNER, JJ., concur in the entire opinion.
HARWOOD and McCALL, JJ., concur in the opinion except the "lapsation" feature with which they dissent.
JONES, J., concurs in the opinion except on the "insurable interest" feature with which he dissents.
COLEMAN, J., dissents.
JONES, Justice (dissenting).
I must disagree with the majority holding that one has an insurable interest in the life of his brother (or sister) on the basis of their relationship alone. The public policy which provides the "insurable interest" requirement has its roots in two related, yet independent, principles. Absent insurable interest such contracts have been discredited for two reasons. One is that they are wagering contracts and the other is that they may be an inducement to homicide. It is not necessary that both reasons exist at the same time or to any given policy. While each might considerably influence the other, these two public policy principles are mutually exclusive and not interdependent.
The rule relating to the necessity of an existence of an insurable interest is well stated in Commonwealth Life Insurance Co. v. George, 248 Ala. 649, 28 So.2d 910:
This Court has emphasized that absent insurable interest such a contract of insurance is a wagering contract, and stated further that the essential test for validity is that there must be a reasonable ground, founded upon the relation of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the insured, not merely an advantage to be gained by his death.
One of the earliest cases on the subject of insurable interest, helmetag's Adm'x v. Miller, 76 Ala. 183, stated in clear and explicit language:
This brings us to the question whether the relationship of brother and brother (and, incidentally, brother and sister or sister and sister) is such a relationship that it in itself creates an insurable interest. We know that the relationship of husband and wife constitutes such a relationship per se, Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251; and while I do not find that this Court has been specifically called upon to *280 decide whether in every case the relationship of parent and child, or child and parent, in and of itself, with a presumption that is not even rebuttable, gives rise to an insurable interest in either, the overwhelming weight of authority is that this relationship is sufficient to constitute an insurable interest by one in the life of the other (44 C.J.S. Insurance § 204, at 907). But is the relationship of brothers in the same category, or does it depend upon the circumstances of the particular case?
I should here refer to previous decisions of this Court which involve or mention other blood relationships in connection with the question of insurable interest. The following relationships have been held not to create an insurable interest on the basis of such relationship alone. Cousin and cousin, National Life & Accident Ins. Co. v. Alexander, supra; no interest in life of the wife of beneficiary's wife's brother, National Life & Accident Ins. Co. v. Middlebrooks, 27 Ala.App. 247, 170 So. 84; aunt and niece, Commonwealth Life Insurance Co. v. George, supra; aunt-in-law and niece, Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696; niece and uncle, Bell v. National Life & Accident Ins. Co., 41 Ala.App. 94, 123 So. 2d 598.
The opinions in Middlebrooks and Alexander contain the following identical quotation:
The statement in both cases that the relationship of brothers and sisters is recognized as constituting an insurable interest is followed by a reference to 37 C.J. Life Insurance, § 57, at page 393. I quote this section:
We also quote from 44 C.J.S. Insurance § 204, page 906:
It is stated in 43 Am.Jur.2d, Insurance, § 511, page 540, that the decisions are not in accord on the question whether one has by reason of relationship alone an insurable interest in the life of a brother or sister. This section contains notes showing decisions pro and con. While these two cases, Middlebrooks and Alexander, contain statements *281 that the relationship of brother and sister gives rise to an insurable interest without more, these statements are pure dicta and are merely quoting the first note in 37 C.J., which I have quoted above.
As already noted, there is a conflict of authority on the effect of the mere relationship of brother or sister. Cases on the subject are also found in the annotation in 45 A.L.R. commencing at page 1181 following the case of Rogers, Admr. v. Atlantic Life Ins. Co., 135 S.C. 89, 133 S.E. 215. In that annotation cases are cited, including the Rogers case, as holding that the mere relationship alone is sufficient. There are cases to the contrary, such as Abernathy v. Springfield Mutual Assn., 284 S.W. 198 (Mo.Ct.App.). This is cited in the annotation at page 1184 of 45 A.L. R. along with other Missouri cases, an Indiana case, English decisions, a Connecticut Supreme Court case, a Georgia case, and a Louisiana case. The Rogers case, and others, place reliance upon Aetna Life Ins. Co. v. France, 94 U.S. 561, 24 L. Ed. 287.
In France the life insurer insured the life of Andrew J. Chew, for the benefit of his married sister. The policy itself acknowledged the receipt of the first premium of $243.50 "in hand paid by Andrew J. Chew" for the benefit of his said sister and provided for an annual premium in a like amount to be paid to the insurer annually thereafter. Nothing was said therein about the sister taking out the policy, it containing only a promise to pay her or her personal representatives upon the death of her brother. There was no evidence that Mrs. France, who was in no way dependent on her brother for support, loaned him money at different times and that she paid premiums on the policy. In reaching its conclusion on the question of insurable interest, the U. S. Supreme Court said:
The Court, therefore, laid stress upon the fact that the policy was procured or taken out by the brother himself and each time the insurer acknowledged that the premiums were paid by him. It is not entirely clear to us whether the Court intended to say that the decision might have been otherwise had the contract between the insurer and Mrs. France expressly shown that it was procured by her and that she was insuring the life of her brother for her benefit. It may be that the cases are not distinguishable, but the language in the opinion to the effect that according to the policy the contract was made solely by the insured might be construed as constituting a significant factor in the Court's decision.
In any case, I think that the relationship alone is not sufficient, that the rule requiring something other than the relation is the sound one and I would so hold. This is based on the rationale that there is but one test for insurable interestthat of a pecuniary interest or some reasonable expectation of monetary benefit from the continuance of the insured's life; and within certain blood or affinity relationships this pecuniary interest or benefit is conclusively presumed. Such relationships are that of husband and wife, parent and child, grandparent and grandchild, and under certain conditions loco parentis relationships. This "conclusive presumption" rule with respect to these relationships does not violate the public policy necessitating insurable interest aimed at preventing homicide and wager contracts. While an extension of this rule to the brother relationship might be permissible as to the homicide aspect, to so extend this rule would facilitate the violation of the second evil which the aforementioned public policy seeks to prevent; vis., wager contracts.
*282 Having adopted the above view, I would hold that the line must be drawn short of the brother relationship, and that insurable interest in such cases should depend upon a pecuniary benefit, or advantage to be gained from the continued life of the insured, which cannot be conclusively presumed, but is subject to proof.
My dissent is limited to the holding of the majority with respect to the insurable interest feature of the life insurance policies, and in all other respects, I concur.
HEFLIN, Chief Justice.
On rehearing the thrust of Mutual Savings' new argument is that only four of the justices were in favor of affirmance since only four held for the beneficiary on the entire opinion. It is argued that four justices were in favor of reversal, since one dissented altogether, two dissented as to "lapsation" and one dissented as to insurable interest. Thus the claim is that there was a 4-4 split which would dictate reliance upon Title 13, Section 15, Code of Alabama, 1940, as amended (Recompiled 1958-1971 Cumulative Pocket Parts), which provides for the appointment of a special judge by the Governor, to settle the issue. This court does not agree with the position of Mutual Savings on this point.
In the case of Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205 (1920), Justice Brown, writing for this court, said:
"The judgment of the circuit court will therefore be affirmed."
Opinion extended. Application for rehearing overruled.
MERRILL, HARWOOD, MADDOX, McCALL, JONES and FAULKNER, JJ., concur in overruling the application for rehearing on the Title 13, Section 15 issue; however, MERRILL, MADDOX, and FAULKNER, JJ., concur in overruling the application for rehearing on all issues.
HARWOOD and McCALL, JJ., would grant the rehearing only on the "lapsation" feature of the original opinion.
JONES, J., would grant the rehearing only on the "insurable interest" feature of the original opinion.
COLEMAN, J., would grant the rehearing and dissents.
[1] Although the Insurance Code, i. e., Title 28A, became effective after all relevant times for purposes of the instant case, this court is of the opinion that the result obtained in the instant case would not be altered by the application of section 316, which provides as follows:
"§ 316. Insurable interest; personal insurance. (1) Insurable interest with reference to personal insurance is an interest based upon a reasonable expectation of pecuniary advantage through the continued life, health or bodily safety of another person and consequent loss by reason of his death or disability, or a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law."
[2] This court's research has disclosed that of the nineteen jurisdictions which have written to this issue, fourteen have stated that one has an insurable interest in the life of his brother by virtue of the relationship alone.
[3] For cases holding that the relationship of brother-brother does not constitute an insurable interest, see Lord v. Dall, 12 Mass. 115, 7 Am.Dec. 38 (1815); Lewis v. Phoenix Mut. Life Ins. Co., 39 Conn. 100 (1872); Miller v. Travelers' Ins. Co., 81 Ind.App. 618, 144 N.E. 554 (1924); Abernathy v. Springfield Mut. Ass'n, 284 S.W. 198 (Mo.App. 1926); Gulf Life Ins. Co. v. Davis, 52 Ga. App. 464, 183 S.E. 640 (1936); Dieterle v. Standard Life Ins. Co., 119 S.W.2d 440 (Mo.App.1938): Williams v. Northeast Mut. Ins. Ass'n., 72 S.W.2d 166 (Mo.App.1934); Masonic Ben. Ass'n of Central Illinois v. Bunch, 109 Mo. 560, 19 S.W. 25 (1892). | June 7, 1973 |
eca3c1e7-a3ae-4a91-a2d5-300c2d62ae12 | Woods v. Laster | 279 So. 2d 121 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 121 (1973)
Lillie Marie WOODS
v.
Robert H. LASTER and Reelfoot Packing Company, a corporation.
SC 338.
Supreme Court of Alabama.
June 7, 1973.
*122 W. H. Rogers, Moulton, for appellant.
Eyster, Eyster & Key, Decatur, for appellees.
MADDOX, Justice.
This was a suit for damages due to personal injuries and related medical expenses sustained by the appellant (plaintiff) as a result of a collision between a car in which appellant was riding as a passenger and a truck being driven by Robert H. Laster and owned by Reelfoot Packing Company, a corporation, the appellees. The collision occurred on July 6, 1970 on Highway 20 in Lawrence County.
The complaint had one count, which alleged a wanton injury and averred that Robert H. Laster was acting as an agent or servant of Reelfoot Packing Company, a corporation, on the occasion made the basis of the complaint. A plea in short by consent was duly filed and after trial by jury was had, a verdict and judgment for the defendants (appellees) was entered on October 26, 1971. Appellant's motion for a new trial was denied. Appellant appeals.
There are basically two assignments of error argued by appellant; (1) the court erred in denying the appellant's motion for a new trial, and (2) the court erred in giving as an instruction to the jury the appellees' requested written charge "A."
The facts are briefly stated. Appellant, Lillie Marie Woods, was riding as a passenger in an automobile being operated by her sister-in-law, Margaret Lipscomb. Appellee, Robert H. Laster, was driving a truck owned and operated by Reelfoot Packing Company, a corporation. Both vehicles were traveling east on Highway 20. The truck ran into the rear of the automobile as the automobile was slowing down to make a right turn off the highway.
Plaintiff suffered an acute cervical strain, moderate of the neck. Her doctor prescribed a cervical collar and muscle relaxants. She was admitted to the hospital about a week after the accident and treated with physical therapy, cervical traction and muscle relaxants.
The cause went to the jury. The jury, at one point during its deliberations, returned to the courtroom and requested additional instructions on "wanton negligence." The trial court very painstakingly restated the law applicable to a charge of "wanton negligence" and gave an example to distinguish between simple negligence and "wanton negligence." One of the appellant's assignments of error alleges that the court erred in giving charge "A" requested by the defendants. However, on the page of the transcript to which our attention is called, appellant does not charge error in the initial giving of charge "A." Her assignment is addressed to the reading of charge "A" again at the time the jury came back and asked for additional instructions on "wanton negligence." The court stated at that time:
*123 "`GIVEN: Billy C. Burney.'
Appellant argues that charge "A" was confusing and misleading because the court failed to instruct the jury as to what constituted simple negligence. First, we find in the record that the court, besides the statement set out above, otherwise defined, in some detail, the difference between negligence and wantonness. Furthermore, appellant interposed no objection when the court restated charge "A" to the jury. In any event, if appellant thought charge "A" was confusing and misleading, the proper course would have been to request an explanatory charge. United Ins. Co. of America v. Ray, 275 Ala. 411, 155 So. 2d 514 (1963).
The only other argument made is that the verdict of the jury was against the great weight and preponderance of the evidence.
The decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. The verdict is strengthened when the presiding judge refuses to grant a new trial. Southern Ry. Co. v. Reeder, 281 Ala. 458, 204 So. 2d 808 (1967); Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277 (1960).
The judgment of the trial court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | June 7, 1973 |
884c1cff-f39a-486e-85d3-d7785273c1ec | Pitts v. State | 279 So. 2d 119 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 119 (1973)
Larry PITTS
v.
The STATE of Alabama.
SC 363.
Supreme Court of Alabama.
June 7, 1973.
Hanson & Allen, Albertville, for appellant.
William J. Baxley, Atty. Gen., and George W. Royer, Jr., Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Larry Pitts was convicted of selling 36 black amphetamine capsules to an undercover agent in Marshall County, and sentenced to three years in the penitentiary. He appealed to the Court of Criminal Appeals, and the cause was transferred to this Court.
The facts are not complex. The undercover agent, E. B. Taylor, was in the parking lot of Jack's Hamburgers, Albertville, Alabama, on December 18, 1971. He mentioned that he'd like to have some "speed", and the defendant said he would get some. According to Taylor, the defendant left the parking lot of Jack's Hamburgers, returned twenty minutes later with a bottle containing 36 black capsules, and sold them to him for $30. Subsequent chemical analysis revealed that the principal constituent of the capsules was amphetamine.
*120 The defendant took the stand, admitted prior convictions for grand larceny and burglary, stated that he used heroin and amphetamines, admitted being present when the sale of the 36 black pills was made, but said someone else had sold them. The jury returned a guilty verdict.
Five arguments are advanced on appeal: (1) That the undercover agent was improperly permitted to testify to a conclusion, i. e. that he was not intoxicated the night of the sale; (2) that there was a defect in the chain of custody of the drugs from undercover agent to laboratory; (3) that defendant was convicted on the uncorroborated testimony of the undercover agent, who was an accomplice; (4) that entrapment was established as a matter of law; and (5) that two of his jury charges were improperly refused.
During his testimony, Mr. Taylor, the undercover agent, stated that it was customary for him to drink alcoholic beverages while working undercover, so his temporary associates would not ask him to take drugs or suspect him for not doing so. The defense attempted to cast doubts on the validity of Taylor's testimony since he admittedly had been drinking when he made the buy of drugs.
The State to rehabilitate his prior testimony asked Taylor whether he had been intoxicated that evening, and Taylor stated that he hadn't been. The defense objected on the ground that this was a conclusion of the witness. The court overruled the objection. Taylor testified that he would have just enough liquor to get it on his breath, so that the drug dealers would be convinced he was drinking. In response to a defense question, he stated again, without objection, that he had not been intoxicated on this particulat night.
Any error in admitting this evidence was cured when the same evidence was later elicited by the defendant and permitted to remain in the record without objection.
The undercover agent testified that he put the bottle of pills bought from the defendant in his left boot, and after midnight turned it over personally to another agent at the Ranch House Motel. In cross-examination, defense counsel attempted to create the impression that Taylor may have made other buys, and somehow confused which drugs came from which suspect. There was no evidence whatever of any mistake as to which drugs came from whom: Taylor's testimony was that he counted the 36 black pills in the bottle sold him by the defendant, placed them in his left boot, and later turned them over to another agent that same night. A bottle with 36 pills of the exact type was later received by the State Toxicologist from the second agent. There is no defect apparent in the chain of custody.
Appellant argues that the undercover agent was his accomplice, and that he cannot be convicted on the latter's testimony. An undercover agent who purchases unlawful drugs in pursuance of his law enforcement duties is not an accomplice of the seller. Gilliland v. State, 291 Ala. 89, 277 So. 2d 901 (1973); Brown v. State, 44 Ala.App. 135, 203 So. 2d 700 (1967).
Although the entrapment issue was submitted to the jury with a correct charge, appellant contends that the evidence of entrapment was so overwhelmingly strong that this defense was established as a matter of law. We disagree. The undercover agent asked to buy, and the defendant sold. We have repeatedly held that entrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who commits the essential acts constituting it, merely because an officer of the law, in his effort to secure evidence against such person, affords him an opportunity to commit the criminal act. Gilliland v. State, supra; Boswell v. State, 290 Ala. 349, 276 So. 2d 592 (1973); Johnson v. State, 36 Ala.App. 634, 61 So. 2d 867 (1952). We see no untoward pressures or trickery in *121 the conduct of the undercover agent in this case.
Appellant contends that two of his proposed jury charges were improperly refused. One of them is embodied word for word in another charge requested by defendant and given by the trial judge. No error appears in refusing to give a redundant charge. Title 7, § 273, Code of Alabama 1940, Recompiled 1958. The other refused charge intimates that an undercover agent cannot buy illegal drugs from a suspect unless he had "probable cause" to believe that the latter had previously made illegal drug sales. We know of no such rule of law.
No error appears in the record. The judgment and sentence are affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | June 7, 1973 |
480f2455-5741-4313-9e45-b223c82f5b4c | Snow v. State | 279 So. 2d 558 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 558 (1973)
In re J. D. SNOW
v.
STATE. Ex parte J. D. Snow, alias.
SC 395.
Supreme Court of Alabama.
June 21, 1973.
Hugh A. Locke, Jr., Birmingham, for petitioner.
No brief for the State.
HARWOOD, Justice.
Petition of J. D. Snow, alias, for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Snow, alias v. State, So Ala.App. 381, 279 So. 2d 552. Writ denied.
HEFLIN, C. J, and MERRILL, COLEMAN and FAULKNER, JJ., concur. | June 21, 1973 |
e6444e11-58ed-4d6e-9c75-7b23056a1c0d | State Farm Mut. Auto. Ins. Co. v. Board of Trustees | 279 So. 2d 512 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 512 (1973)
STATE FARM MUTUAL AUTO INSURANCE COMPANY
v.
BOARD OF TRUSTEES OF FIREMEN'S PENSION AND RELIEF FUND. BOARD OF TRUSTEES OF FIREMEN'S PENSION AND RELIEF FUND
v.
STATE FARM MUTUAL AUTO INSURANCE COMPANY.
SC 158, 158X.
Supreme Court of Alabama.
June 7, 1973.
*513 Rives, Peterson, Pettus, Conway & Burge and Clarence M. Small, Jr., Birmingham, for appellant.
William A. Thompson, Birmingham, for appellee.
MADDOX, Justice.
The sole issue presented by this appeal is whether State Farm Mutual Automobile Insurance Company is a "fire insurance company" within the meaning of a state statute which requires each fire insurance company to pay a percentage of its gross fire premiums into a Firemen's Pension and Relief Fund. The statute involved is Act No. 307, Acts of Alabama, 1943. Section 11(C) in pertinent parts provides:
The Board of Trustees of the Firemen's Pension and Relief Fund (hereinafter referred to as Firemen's Pension Fund) filed a declaratory judgment action against State Farm alleging that the Firemen's Pension Fund was established in the City of Birmingham by authority of Act No. 307, supra. Firemen's Pension Fund's complaint alleged that State Farm was at all material times a "fire insurance company" doing business in the City of Birmingham, taking and receiving premiums "for insurance against fire within said city."
After trial, the court found that a justiciable controversy existed and that State Farm's position was based on a good faith interpretation of the statute which led it to believe that it was not subject to the Act's provisions, and that such position was taken openly without the intent of evading or refusing to pay any sums due. However, the court determined that State Farm was a "fire insurance company" within the meaning of the statute, and was liable for the license or tax imposed by it and that its liability was measured by the premiums received by State Farm for automobile physical damage insurance sold on property located in the City of Birmingham, and granted a money judgment in favor of the Board of Trustees of the Firemen's Pension and Relief Fund against State Farm for the sum of $75,444.06.
Errors relied upon by State Farm include (1) the finding that State Farm is a "fire insurance company" within the meaning of the Act, (2) the determination that the writing of automobile physical damage insurance, a portion of which is protection against fire risk, is sufficient basis for including State Farm in the classification of fire insurance companies within the ambit of the Act.
State Farm further argues that, assuming it may be classified as a "fire insurance company" under the Act, it was error to calculate its liability on the basis of premiums received for collision and comprehensive insurance on automobiles. In other words, State Farm says that if it is liable at all under the Act, its obligation to contribute to the Firemen's Pension Fund should have been limited to one and one-half percent of that portion of the comprehensive premium which is allocable to insurance against loss caused by fire.
The Firemen's Pension Board filed cross-assignments of error and a motion to dismiss the appeal.
We come first to what we think is the main question: "Is State Farm a fire insurance company under Act 307?"
To answer this question, we must interpret what the legislature intended when it used the words "fire insurance company" in Act 307.
The legislature, in the statute, did not favor us with a definition of "fire insurance company." In arriving at a definition, this Court must consider legislative intent, which has been declared to be the most important criteria in statutory construction. Richardson Lumber Co. v. Howell, 219 Ala. 328, 122 So. 343 (1929). First, it appears that the purpose of the Act was to provide a method for raising money for the use and benefit of the fire department in the designated cities. Cf. Home Ins. Co. v. Cobbs, 20 Ala.App. 491, 103 So. 165 (1925). The right to impose a levy against fire insurance companies for the benefit of firemen is not here questioned. This Court has determined similar levies are valid. Phoenix Assur. Co. v. Fire Dept. of City of Montgomery, 117 Ala. 631, 23 So. 843 (1897)
*515 We now come to the central question. Was State Farm a "fire insurance company?"
The Firemen's Pension Fund contends that the trial court correctly determined that State Farm was a "fire insurance company" on the authority of three Alabama cases, Motors Ins. Corp. v. City of Birmingham, 269 Ala. 339, 113 So. 2d 147 (1959); City of Sheffield v. General Exchange Ins. Corp., 234 Ala. 386, 174 So. 782 (1937); and City of Sheffield v. Home Ins. Co., 234 Ala. 382, 174 So. 779 (1937). Each of those cases involved the question of the right of a municipality to impose a license tax on a company writing automobile physical damage insurance under a classification as a "fire insurance company." This Court answered the question in the affirmative.
Regarding municipal license taxes, the legislature has divided insurance companies into two broad classifications, (1) fire and marine insurance companies, and (2) insurance companies other than fire and marine. Title 37, §§ 736, 739, Code of Alabama, 1940.[1]
The Firemen's Pension Fund argues that the classification of fire insurance companies in Title 37, § 739, which authorizes the imposition of a municipal license tax, is the classification intended to be applied under Act 307. We do not think so. We note that during the five tax years here involved (1964-1968) State Farm filed a certificate in connection with the Birmingham municipal license tax imposed pursuant to Title 37, § 739, only on what State Farm calculated was the fire portion of the comprehensive premium on its automobile property damage policies.
As we view it, however, the tax imposed by Act 307 is not a municipal license tax imposed pursuant to Title 37, §§ 736 and 739. While Act 307 provides that the one and one-half per centum of gross premiums shall be treated and held to be a part of the maximum of four per cent of gross premiums which any municipal corporation may by law impose upon any fire insurance company as a license or privilege tax, the one and one-half per centum is a separate levy and goes into a different fund.[2]
The Firemen's Pension Fund argues that the Firemen's Pension Tax is a municipal license tax because "automobile physical damage insurance is the business of a fire insurance company and that an insurance company writing automobile physical damage insurance is a fire insurance company within the meaning of the license tax here involved (Act No. 307, 1943) and Section 160.10 of Section 348, General Revenue Acts of 1935 (Section 739, Title 37, Code of Alabama). ..."
While the Motors Ins. Corp. case and the two City of Sheffield cases cited by appellee are persuasive authority for the proposition that the words "fire insurance company" in Act 307 include a company which writes automobile physical damage, we are not convinced that the legislature, in Act 307, intended the words "fire insurance company" to be so broad. In the Motors Ins. Corp. case, this Court observed that the question as to whether or not Motors was properly classified as a fire insurance company within the meaning of Title 37, § 739 was "not free of difficulty." *516 This Court pointed out:
While persuasive, we do not think the Motors decision is controlling here. We are construing a different statute, with a different purpose. The ordinance in Motors involved a license for general municipal purposes, whereas Act 307 provides revenue to benefit the fire departments of cities which come within the classification of the Act. We conclude that the legislature intended in Act 307 that every insurance company insuring property against loss by fire would be considered to be a "fire insurance company" and that it would be liable to pay into the Firemen's Pension and Relief Fund "a sum equal to one and one-half percentum of the gross premiums, less returned premiums, received by such fire insurance company for and on account of business, including all renewals of fire insurance." The Motors case is also partly distinguishable, in that in Motors the company was chartered as a fire insurance company and so listed itself for state tax purposes and paid a lower rate of tax to the state because of such classification. Conversely, State Farm was not chartered as a fire insurance company and paid a higher state tax as a company other than a fire or marine or fire and marine insurance company.
We do not wish to be misunderstood. We are attempting to determine legislative intent regarding Act 307. Even though a company is not named a fire insurance company, it would be a fire insurance company if it issued policies of fire insurance. LaSalle Fire Ins. Co. v. Jenkins, 185 Ark. 484, 47 S.W.2d 792 (1932).
The decision we here reach is limited solely to the question of whether State Farm is a "fire insurance company" under Act 307. Since State Farm insured property in the City of Birmingham against loss by fire then it must be considered to be a "fire insurance company" under Act 307. Therefore, we affirm the determination of the trial court in this regard. However, the liability of the company cannot be predicated upon the total automobile property damage business done by State Farm during the five tax years. Act 307 specifically says that the liability is "a sum equal to one and one-half percentum of the gross premiums, less returned premiums, received by such fire insurance company for and on account of business, including all renewals of fire insurance." The measure of liability of State Farm under the Act, therefore, is a sum equal to 1½ of *517 that portion of the comprehensive premium which is allocable to insurance against loss caused by fire. We do not determine what this sum is, but note that State Farm filed with the City of Birmingham a computation which State Farm claimed represented a portion of the comprehensive premium allocable to the fire risk for the tax years in question.[3]
The Firemen's Pension Fund cross-assigns error and argues that the court should not have eliminated penalties and interest, on rehearing. The original money judgment, including penalties, interest and the erroneous inclusion of a tax year in which the statute of limitations had run, was in the total sum of $126,580.38. The appellee does not question the erroneous inclusion of one tax year on which the statute of limitations had run. The appellee also filed a motion to dismiss the appeal on the ground that the appeal was not timely filed.
We find no merit in appellee's cross-assignment of error. The payments required to be made to the Firemen's Pension and Relief Fund by Act 307 are not "taxes" as that term is used in the Revenue Acts of Alabama, but are "fees imposed on the writing of all fire insurance." City of Birmingham v. Home Ins. Co., 240 Ala. 195, 198 So. 716 (1940). We think that it was within the power of the court to deny interest, especially since the court specifically found that State Farm was not guilty of bad faith. 47 C.J.S. Interest § 3, p. 13 (1946). The same holds true with regard to the penalties which the court initially imposed but removed on rehearing. The power of an equity court to grant relief from an unjust forfeiture is well established. Humphrey v. Humphrey, 254 Ala. 395, 48 So. 2d 424 (1950); Dean v. Coosa County Lumber Co., 232 Ala. 177, 167 So. 566 (1936); Hunter-Benn & Co. Company v. Bassett Lumber Co., 224 Ala. 215, 139 So. 348 (1932); Barton v. W. O. Broyles Stove & Furniture Co., 212 Ala. 658, 103 So. 854 (1925). In Dean v. Coosa County Lumber Co., supra, the Court stated:
Appellee's motion to dismiss the appeal is also without merit. Appellee contends that the appeal should have been perfected within 30 days from the rendition of the final decree, as provided for in Title 37, § 767, Code, 1940. In the first place, that statute applies to appeals in actions filed by municipalities to enjoin the doing of business by one subject to a license or excise tax imposed by the "petitioning municipality." Here, the petitioner was the Firemen's Pension Board, not the City of Birmingham, and the petition was one for declaratory judgment. Title 37, § 767, is completely inapplicable to this appeal and the motion to dismiss is due to be and is hereby denied. The decree of the trial court is due to be affirmed in part, reversed in part, and remanded.
Affirmed in part; reversed in part; and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.
[1] The new Alabama Insurance Code, effective January 1, 1972, defines several types of insurance, but the definitions contained are specifically inapplicable to the construction of Title 37, §§ 736 and 739. Act 407, Acts 1971, Chapter 5, p. 757 et seq., Tit. 28A, §§ 87-94, Code of 1940, Recomp.1958, as amended.
[2] The city license tax on fire and marine premiums was 2½ of the net premiums as authorized by Title 37, § 739, Code, 1940. The premium subject to the Firemen's Pension Tax was 1½, making a total of 4%. The city, in administering the tax on fire premiums, required the taxpayer to pay the Firemen's Pension Tax by "separate check or money order." Apparently, State Farm did not pay any license tax as a "fire insurance company."
[3] The following reflects the total comprehensive premiums State Farm says it received from policyholders giving a Birmingham address, the percentage applied on the basis of fire claims paid during the year, and the amount thus determined to allocate a portion of the comprehensive premium to fire risks and the fire loss portion is the amount certified to the City of Birmingham as the net "fire" premiums received during the preceding year:
| June 7, 1973 |
72d0b1f2-ca69-42f9-a1da-2165500adb05 | Hall v. State | 281 So. 2d 662 | N/A | Alabama | Alabama Supreme Court | 281 So. 2d 662 (1973)
In re Billy Joe HALL
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 286.
Supreme Court of Alabama.
June 7, 1973.
*663 William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
No brief for the respondent.
HARWOOD, Justice.
We are not in accord with the conclusions of the Court of Criminal Appeals that because the indictment in this case failed to negative that the drugs possessed by the defendant were (1) obtained upon a valid prescription and held in the original container, or (2) were not delivered by a practitioner in the course of his practice and were held in the original container, stated no offense and was therefore void.
The indictment upon which the defendant below was convicted charged in parts pertinent to this review that the defendant:
The statutory provision with which this appellant was charged with violating is to *664 be found in Act 252, Acts of Alabama 1967, p. 633, which Act was approved 24 August 1967, repealed by Act No. 1407, Sec. 508, Acts of Alabama 1971. Sec. 5(b), (c) of said Act when it was in existence read:
"(c) No person, other than a person described in subsection (a) or subsection (b) (2) shall possess any depressant or stimulant drug unless (1) such drug was obtained upon a valid prescription, and is held in the original container in which such drug was delivered; or (2) such drug was delivered by a practitioner in the course of his professional practice and the drug is held in the immediate container in which such drug was delivered."
The question therefore arises as to whether the provisos and exceptions in the above provision are in distinct clauses, or are so intertwined with the general offense of possessing certain drugs as to be a constituent part of the general offense.
There can be no doubt that exceptions contained in the first part of the provision reading: "No person other than a person described in subsection (a) or subsection (b) (2) shall possess any depressant drug * * *" relate not only to separate clauses but to separate subsections of Act 252. Clearly, under these circumstances, these exceptions need not be negatived in the indictment.
As to provisions (1) and (2), no need arises to negative them if they be considered as separate clauses. They are separated from the clause creating the offense (possessing a depressant or stimulant drug) by the word "unless."
In support of its conclusions that the indictment is void because of its failure to set forth that the defendant was not within the exceptions or provisos contained in Section 5(b), (c) of Act 252, the Court of Criminal Appeals cites Dorgan v. State, 29 Ala.App. 362, 196 So. 160; Sizemore v. State, 45 Ala.App. 126, 226 So. 2d 669; and Clark v. State, 19 Ala. 552. In particular, we gather from the opinion, reliance was placed upon Clark v. State, supra, for the conclusion reached by the Court of Criminal Appeals, as evidenced by the following statement from Clark, supra, set forth in the opinion of the Court of Criminal Appeals:
The cases dealing with the necessity of negativing exceptions or provisos in an information or indictment charging violation of a statutorily created offense are legion, and an excellent discussion of the varied results reached may results reached may be found in an annotation in 153 A.L.R., p. 1219 et seq.
The Court of Criminal Appeals, it appears to us, has laid too much emphasis on the grammatical construction of the Act rather than upon the essential elements of the offense denounced. The location of the exceptions or provisos should not be determinative of the question, though it appears that if a clear exception, as distinguished from a proviso, is embodied in an enacting clause of an Act, and constitutes a part of the description of the offense, then such exception must be negatived in the indictment. While this broad general rule is workable in many cases, there are situations where its application presents *665 great difficulties. As stated in People v. Devinny, 227 N.Y. 397, 125 N.E. 543:
The most practical and workable rule, it appears to us, is to be found in Joyce on Indictments, Sec. 279:
This rule also seems to be the view of our cases. As before mentioned, Clark v. State, supra, sets forth that where the Act contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exception, or to negative the proviso it contains.
In Britton v. State, 77 Ala. 202, this court held that where the offense is a general one, and there is no exception incorporated in the Act which constitutes a part of the description or definition of the offense, then it matters not whether these excusatory matters exempting one from the provisions of the Act be given, or not given, in the same clause or section of the Act prohibiting the general Act, i.e., in the enacting clause.
Both proviso (1) and proviso (2) of Sec. 5(b), (c), set out above, are separate clauses containing a subject and a predicate. These clauses are separate and distinct from that part of Sec. 5(b), (c) creating, describing, and defining the general offense, i.e., the possession of depressant or stimulant drugs.
This being so, the exceptions or provisos constitute defensive matter not to be anticipated and charged in an indictment.
We hold that the indictment in this case was legally sufficient. The opinion and judgment of the Court of Criminal Appeals holding otherwise is due to be reversed, and it is so ordered.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, McCALL, FAULKNER and JONES, JJ., concur. | June 7, 1973 |
de1609f0-1216-45ce-b276-246d928f03ee | McClary v. State | 282 So. 2d 384 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 384 (1973)
In re Henry L. McCLARY
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
S.C. 246.
Supreme Court of Alabama.
June 7, 1973.
Rehearing Denied July 5, 1973.
William J. Baxley, Atty. Gen., Montgomery, Samuel L. Adams, Sp. Asst. Atty. Gen., Dothan, for petitioner.
Thomas M. Haas, and Ian F. Gaston, Mobile, for respondent.
MERRILL, Justice.
The defendant McClary was convicted in Mobile County for selling drugs in violation of an Act listed in the 1958 Recompilation as Tit. 22, § 258(21). The Court of Criminal Appeals decided all the questions raised adversely to the defendant except one relating to purported argument of counsel. That court reversed the judgment and we granted certiorari.
We quote from the opinion of the Court of Criminal Appeals as it pertains to the question here presented:
"THE COURT: Overrule.
"MR. HAAS: We except.'
"All the Judges concur."
Based upon our investigation, this is the first time any appellate court has ever reversed a case for improper argument of counsel where there was a failure to point out substantially the language deemed objectionable. Based on the statement in the record, objection was made to a statement concerning a sale of a person 12, 10 or 15 years old and not a sale to persons of that age, but we are not informed, by this fragmentary objection as to what the assistant district attorney really said.
In Flowers v. State, 269 Ala. 395, 113 So. 2d 344, it was said:
In Cox v. State, 280 Ala. 318, 193 So. 2d 759, this court said:
In Gray v. State, 19 Ala.App. 550, 98 So. 818, the Court of Appeals said:
Gray was followed in Pate v. State, 32 Ala.App. 365, 26 So. 2d 214, and Johnson v. State, 35 Ala.App. 645, 51 So. 2d 901.
That same court in an opinion by Harwood, J., said in Ferguson v. State, 36 Ala.App. 358, 56 So.2d 118:
The fragmentary objection contained in the record does not meet the requirements of the authorities cited supra and the trial court's action in overruling the stated objection did not constitute reversible error.
We note that in each of the three cases cited by the Court of Criminal Appeals on this point the objectionable remarks of counsel are quoted in the opinion.
If the holding of the Court of Criminal Appeals were allowed to stand, then a resourceful attorney, in a larceny case, could make the identical objection and statement as made here, correctly have the objection overruled, as here, and then secure a reversal. That illustrates the need for the rule that the remarks deemed objectionable should be fully quoted, or substantially so, in an objection to improper argument.
This rationale is supported by the rule applying to objections to the oral charge of the court. One of the clearest statements of the rule appears in Alabama Power Co. v. Smith, 273 Ala. 509, 142 So. 2d 228[16]:
This is true even though the record must always contain the court's oral charge to the jury. Tit. 7, § 272. So, whether objection is made to a part of the court's oral charge or to argument of counsel, the exceptor must select and recite what was said, or state the substance of what was said, and thus, specifically bring to the attention of the trial court and this court the matter and ruling of which was made.
We are aware that the argument of counsel in most cases tried in Jefferson County is transcribed and included in the transcript on appeal. But in the other counties of the state, the official court reporter is not required to transcribe the argument of counsel, Tit. 13, § 262 (Duties of Court Reporter) except, of course, where objection is made. This case was tried in Mobile County.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court.
Reversed and remanded.
COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL and FAULKNER, JJ., concur.
HEFLIN, C. J., and JONES, J., concur specially.
JONES, Justice (concurring specially).
I concur with the holding that the record of the prosecuting attorney's remarks during summation is inadequate to disclose an improper argument and that the trial court should not be reversed for overruling an objection thereto. I confess that the issue is a close one, and that a heavy burden is imposed on defense counsel to adequately preserve the record for review in such cases where oral argument of counsel is not taken down, transcribed, and made a part of the transcript on appeal. But the rule of our cases seems clear that the onus is on the objecting attorney to include in his objection the substance of the argument to which his objection is directed, and this for the reason that the legal bounds of the *387 propriety of such statement cannot be tested in a vacuum, or out of context.
I do not agree with that portion of the majority opinion which I interpret as saying that the confusion as to the substantial language deemed objectional can be contributed at least in part to the phrase "of anybody 12 years old...". I do not believe that the use of the word "to" instead of the word "of" would materially alter or improve the record in this regard. It is the failure to the defense counsel to inform the court of the specific argument which he deems objectionable that makes it defective, rather than his apparent slip of the tongue in saying "of" instead of "to".
To properly preserve the record, defense counsel must state to the court in his objection the substance of the statement he is objecting to and then state the grounds for the objection. Here, defense counsel failed to meet this burden and the trial court properly overruled the objection. I would affirm on this basis.
HEFLIN, C. J., concurs. | June 7, 1973 |
e6e60081-8d99-4f79-8092-3a4f6ab9c2ad | Tanner v. State | 277 So. 2d 885 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 885 (1973)
Willie TANNER
v.
STATE of Alabama.
SC 361.
Supreme Court of Alabama.
May 17, 1973.
Love, Love & Caldwell, Talladega, for appellant.
William J. Baxley, Atty. Gen., Montgomery, Samuel L. Adams, Special Asst. Atty. Gen., Dothan, for the State.
FAULKNER, Justice.
Samuel Thrasher had a bad experience on the night of February 9, 1972. He was working the second shift (3 P.M.-11 P. M.) at the Crown Textile Plant No. 1, Talladega, Alabama. When he came out of the plant after finishing his shift, his car, a blue Chevrolet Camaro, was gone from the company parking lot.
The crime was attributed to Willie Tanner, who was indicted, tried by jury, convicted of grand larceny, and sentenced to five years in the penitentiary. Tanner appealed to the Alabama Court of Criminal Appeals, from whence the cause was transferred to this Court.
The case is a fairly close one, and revolves around the issue of how much circumstantial evidence is necessary to support a criminal conviction. There were really only three pieces of evidence against Tannerall circumstantial: (1) Testimony by a companion that Tanner was in the company parking lot during the period in which the car disappeared, stole several tape players from cars, and said there was a car with keys in it and he was going to "get" it. The companion left and did not see Tanner's subsequent actions. (2) Later, at a friend's house, *886 Tanner was standing next to a blue Camaro, and took the tape player out of it. (3) There was a statement by the friend that Tanner had been driving the blue Camaro. Later, a blue Camaro was discovered abandoned at the place where Tanner's friend said Tanner had left it, and identified by serial number as the stolen car.
The legal principles involved are simple: (1) A conviction may be had on evidence which is entirely circumstantial, so long as that evidence is so strong and cogent as to show defendant's guilt to a moral certainty. Hollenquest v. State, 290 Ala. 146, 274 So. 2d 613 (1973); James v. State, 22 Ala.App. 183, 113 So. 648 (1927). (2) The law is deeply solicitous that the guilty, and the guilty alone, shall be punished for crime; hence if circumstantial evidence fairly permits an inference consistent with innocence, it will not support a conviction. Carr v. State, 28 Ala.App. 466, 187 So. 252 (1939); Cooper v. State, 235 Ala. 523, 180 So. 102 (1938).
We think the circumstantial evidence here sufficient to support the conviction. Defendant's timely presence in the parking lot, his statement he was going to "get" a car there, his appearance later on at the friend's house, standing next to and taking things out of a blue Camaro, a Camaro which was later found abandoned where a friend said Tanner left it, and identified by serial number as the stolen carall this would allow the jury to find him guilty beyond a reasonable doubt and to a moral certainty.
We discover no error in the record. The judgment and sentence are affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | May 17, 1973 |
b36e368c-ff11-44bc-8bee-158fd8bb573d | Adams v. State | 279 So. 2d 488 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 488 (1973)
Dr. Ralph ADAMS and J. Roy Crow
v.
STATE of Alabama.
SC 176.
Supreme Court of Alabama.
June 7, 1973.
*490 Cervera & Folmar, Troy, for appellants.
E. C. Orme, Sp. Asst. Atty. Gen., Troy, for the State.
MADDOX, Justice.
The State of Alabama filed a petition in the Probate Court of Pike County to condemn lands belonging to Dr. Ralph Adams and J. Roy Crow for the purpose of widening Highway 231 in Troy.
From the judgment of condemnation and award of the probate court, both the State and the landowners took appeals to the circuit court. No issue was made as to the right of the State to condemn. The sole question was the amount of damages to be awarded.
In the circuit court, the trial was before the court and a jury. The jury returned a verdict in favor of the landowners in the sum of $18,000. Judgment was entered accordingly, and the owners' motion for a new trial was overruled. The landowners have appealed to this Court.
The condemnation proceeding was begun when the State filed in the probate court its petition for condemnation on June 5, 1970. Appellants' tract was designated therein as Tract 33 and contained 12.05 acres, more or less. On June 23, 1970, the State amended its petition for condemnation insofar as Tract 33 was concerned (there were other tracts in the same petition owned by different individuals) and designated the portions of Tract 33 owned by Adams and Crow as Parcel 1, containing 3.73 acres, more or less, and Parcel 2, containing 7.02 acres, more or less. A tract containing 1.30 acres, more or less, was described in the amended petition as Tract 33-A, and Troy Motors, Inc., was listed as the owner. In appellee's brief, and from testimony in the record, it appears that after June 5, 1970, and prior to June 23, 1970, a tract (including Tract 33-A), having 430 feet of highway frontage was sold by Adams and Crow to Troy Motors, Inc. (Robert R. Dunn). Several maps which were introduced at the trial and referred to in testimony were not certified by the clerk to this Court and are not available to us for review.
Appellants' principal argument concerns approximately 42,000 cubic yards of dirt which were removed from Tract 33 and apparently put on Tract 33-A (Troy Motors). While there was no direct testimony as to who removed the dirt from one tract to the other, counsel for the appellants, during a discourse between them and the trial judge, out of the presence of the jury, stated the following:
While these unsworn statements of counsel are not evidence [American National Bank & Trust Co. v. Long, 281 Ala. 654, 207 So. 2d 129 (1968)], it is helpful to know who the appellants claim were responsible for removing the dirt. We now come to a discussion of the assignments of error.
Assignments of Error 1, 8, 9 and 13 are concerned with the removal of the approximately 42,000 cubic yards of dirt from the condemnees' tract to the tract sold by the condemnees to Troy Motors, Inc., after the petition for condemnation was filed.
Assignment of Error 1 claims that the Court erred in allowing the State to introduce evidence of the removal of the dirt *491 from the condemned property to reduce the reasonable market value of the condemned tract.
We have considered the two rulings of the court which appear on the pages of the transcript specified in the assignment, and no prejudicial error is apparent. In one instance, a state's witness was asked, "Well, now was any dirt removed?" After much voir dire examination by appellants' counsel, the court stated that the witness could testify as to his knowledge on questions related to whether or not dirt was removed. The question was relevant on the issue of an adjustment, if any, which should be made because of the removal of dirt after the petition for condemnation was filed.
As compensation for the taking of a tract of land for public use, property owners are entitled to receive by way of damages the fair market value of the land taken, calculated as of the time of the taking. Or, where only a part of the tract is taken by condemnation, the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part remaining after the taking, giving effect to any enhancement in value of the part remaining if the condemnation is for a public highway. State v. Burroughs, 285 Ala. 177, 230 So. 2d 235 (1970) ; State v. Huggins, 280 Ala. 538, 196 So. 2d 387 (1967). The circumstances in a given case may dictate that adjustment be made when part of the property condemned is removed or destroyed after the date of filing of the petition if such adjustment is necessary to prevent double compensation to the landowner. State v. Huggins, 280 Ala. 538, 196 So. 2d 387 (1967); Jefferson County v. Adwell, 267 Ala. 544, 103 So. 2d 143 (1956).
Consequently, the trial court did not err in permitting the witness to state, if he knew, whether dirt had been removed from the tract after the petition of condemnation was filed.
The only other ruling of the court occurred on an objection made during the voir dire examination of a state witness outside the presence of the jury. One of appellants' counsel was questioning the witness. Appellants' other counsel objected to an answer which the witness gave to his co-counsel's question. We have reviewed the record and no error appears.
Assignment of Error 8 is that the court erred in its ruling that it made no difference who removed the dirt from the condemned property as tending to establish damage to the petitioner. A study of the context of the court's remark on the pages of the transcript called to our attention indicates that the court's statement was made conversationally, not as a ruling, during voir dire examination of a witness outside the presence of the jury. Furthermore, the court inquired whether counsel wanted to explore the question being considered further on voir dire "before the Court rules. ..." The court finally made a statement, as follows:
There is no error presented by Assignment 8.
Assignment of Error 9 is that the court erred in allowing State's counsel to argue to the jury that the dirt was removed by respondents. In the matter of an attorney's argument to the jury, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings. Central of Georgia Ry. v. Phillips, 286 Ala. 365, 240 So. 2d 118 (1970); Alabama Power Co. v. Johnson, *492 281 Ala. 259, 201 So. 2d 514 (1967). To justify reversal because of attorney's argument to jury, this Court must conclude that substantial prejudice has resulted. St. Clair County v. Martin, 273 Ala. 302, 139 So. 2d 617 (1962).
In argument to the jury, counsel may not argue as a fact that which is not in evidence, but he may state or comment on all proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning. McLaney v. Turner, 267 Ala. 588, 104 So. 2d 315 (1958). We have examined the argument objected to and we are unable to conclude that prejudicial error was committed by the court. We find that Assignment of Error 9 presents no cause for reversal.
Assignment of Error 13 assigns as error part of the court's oral charge regarding deduction of the value of the removed dirt. As appellants' counsel made no objection to any part of the court's oral charge, we can consider no alleged errors therein on this appeal.
Assignment of Error 11 asserts that the court erred in allowing into evidence the proceedings of the probate court because proceedings in the circuit court are de novo. This assignment of error was not argued in appellants' brief and was thereby waived. Supreme Court Rule 9.
Assignment of Error 3 asserts that the court erred in allowing introduction of the deed conveying title to the subject property to the respondents, as evidence on the question of valuation, for the reason that the deed was too remote in time and circumstances to be comparable.
The deed to Adams and Crow was executed by their predecessors in title and recorded in October, 1967. The petition to condemn was filed in June, 1970, some two years eight months later.
Generally, competent evidence of the price paid[1] by the owner of property sought to be condemned is admissible as tending to illustrate or as bearing probatively on its market value, unless the sale is so remote in point of time from the condemnation as to afford no fair criterion of present value, or unless it is shown that due to special considerations the sale was not at true market value. It is within the trial court's discretion to determine whether evidence of the price paid by the owner for the property sought to be condemned is too remote, and its ruling in that regard, unless plainly erroneous, is not revisable on appeal. Knable v. State, 285 Ala. 321, 231 So. 2d 887 (1970); State v. Hargrove, 282 Ala. 13, 208 So. 2d 444 (1968). More particularly, this Court has held that the sale of a tract of land approximately two and one-half years prior to condemnation was not so remote in point of time as to be inadmissible on the question of value. State v. Rigas, 282 Ala. 541, 213 So. 2d 386 (1968).
It is our opinion that the trial court committed no error in allowing into evidence the deed to Crow and Adams. Assignment of Error 3 presents no cause for reversal.
Assignments of Error 6 and 7 read as follows:
These assignments are much too general and violate Supreme Court Rule 1, which contemplates that assignments of error *493 shall state concisely, in writing, in what the error consists. 2A Alabama Digest, Appeal and Error, Key No. 728(1).
Assignment of Error 12 asserts that the court erred in overruling respondents' motion for a mistrial for lack of necessary parties.
Assignment of Error 12 presents no basis for review on this appeal. The only page of the record to which we are cited in this assignment contains no motion for mistrial made by appellants.
Assignment of Error 5 asserts that the court erred in allowing the cause to proceed when all necessary parties were joined therein.
Appellants' attorney, Cervera, during the trial, moved that the suit be abated until an amendment was made making Robert R. Dunn, Inc., a party to the lawsuit. The court overruled the motion.
While there is a virtual absence of evidence on this point, the following facts seem deducible from the record. Until about the time of the filing of the petition to condemn in the probate court, June 5, 1970, Adams and Crow apparently still owned all of the 52 acres they had purchased in 1967. Of this 52 acres, approximately 12.05 acres, designated Tract 33, were to be condemned.
At some time, the date not appearing in the record, Adams and Crow conveyed approximately 5 of the 52 acres to Troy Motors, Inc., completely separating the remainder of their land into two tracts of approximately 10 acres and 37 acres, respectively.
Following this conveyance to Troy Motors, Inc., the 12.05 acres to be condemned was owned as follows: Two completely separate parcels located on either end of the condemned strip and consisting of approximately 3.73 and 7.02 acres, respectively, were still owned by Crow and Adams. A third parcel, located between and separating the two owned by Crow and Adams, and consisting of approximately 1.30 acres, was owned by Troy Motors, Inc.
On June 23, 1970, without any objection appearing in the record, the petition for condemnation filed in the probate court was amended to reflect the above change in ownership. Tract 33, originally owned by Crow and Adams in its entirety, was redescribed as the two separate parcels still owned by them. The parcel owned by Troy Motors, Inc., was designated as Tract 33-A and described separately.
The Probate Judge heard evidence and granted the petition for condemnation on June 25, 1970, and on August 17, 1970, he confirmed the award of the commissioners as to each tract covered in the petition. Separate awards were made to Crow and Adams, for Tract 33, and to Troy Motors, Inc., for Tract 33-A.
The record in the instant case contains a Notice of Appeal to the Circuit Court of Pike County, both by the State and by landowners Crow and Adams as to Tract 33. The record is silent as to any appeal regarding tracts owned by other individuals and condemned by the same order of the probate court.
No reason has been shown to us, and on separate study we have been able to ascertain none, which would require that Troy Motors, Inc., be considered a necessary party to this suit.
We make no judgment as to whether Crow and Adams have an "interest" in Tract 33-A which would justify or necessitate their being included in proceedings regarding that tract, as the question is not before us.
It appears that Tract 33 and Tract 33-A were properly treated as distinct tracts and placed in separate paragraphs because of diverse ownership or interests. Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49 (1927), relying on the predecessors of § 3 and § 8 of Title 19, Code of 1940.
Title 7, § 239, Code of Alabama, makes amendments, within certain limitations a *494 matter of right on the motion of any party. Although our research has revealed no previous case in which an amendment of parties has been allowed following a conveyance of title to property to be condemned, on other facts this Court has held that amendments to a petition to condemn should be freely allowed. Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So. 2d 602 (1964). And, the procedure here employed in amending the petition to show a change in ownership of the land after the petition for condemnation was filed was mentioned with apparent approval in Calhoun County v. Logan, 262 Ala. 586, 588, 80 So. 2d 529 (1955).
Admittedly, no deed from Adams and Crow to Troy Motors, Inc., evidencing diverse ownership, was introduced into evidence. There is an indication in the record that at the time the original petition to condemn was filed that ownership of original Tract 33 was still in Crow and Adams. An amendment reflecting changed ownership was offered and no objection was made by appellants. Subsequently, Tracts 33 and 33-A were treated separately, and separate awards were made by the probate court. When Adams and Crow appealed to the circuit court as to Tract 33, they gave no indication that the appeal was to cover anything except Tract 33 as described by the last amended petition. An appeal can only be considered as from the final order affecting the lands specifically described in the appeal. Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49 (1927).
Furthermore, when the motion here under consideration was made before the trial court, appellants offered no evidence to sustain their position that Troy Motors, Inc., had an interest in Tract 33 and was a necessary party.
In a condemnation proceeding, under Title 19, § 1, Code of Alabama, the petitioner omits any interested party at his peril. The proper course is to make a party to the proceedings any one shown by the record to have any interest in the land, or of whom petitioner has notice of a claim or interest therein. Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49 (1927).
A study of the record has revealed no evidence of any interest in Tract 33, as described in the amended petition, on the part of anyone other than Crow and Adams.
Even if it were argued, and we do not believe that appellants have so argued, that appellants were owners of the land in question when the original petition was filed and that, therefore, the condemnation should have been continued in their names, despite a subsequent conveyance of part of the tract to Troy Motors, Inc., we do not believe that appellants were harmed by any supposed error in allowance of the amendment making Tract 33-A a separate tract. If the defendant in a condemnation proceeding, who is the owner of the land sought to be condemned, conveys the same to another before title vests by reason of the condemnation, the purchaser obtains thereby the right to the amount of the award. Calhoun County v. Logan, 262 Ala. 586, 80 So. 2d 529 (1955).
Assignment of Error 4 asserts that the court erred in allowing the cause to proceed when there were two separate parcels of property involved, rather than one contiguous parcel. On the pages of the transcript to which we are cited, we find no objection by appellants or ruling by the trial court with respect to the question whether the Crow and Adams tract should be treated as one tract with two parcels or as two separate tracts. Therefore, the assignment, besides being too general, presents nothing for our review. Supreme Court Rule 1, as amended.
Assignment of Error 2 asserts that the court erred in allowing evidence of a valuation of the dirt removed based on a multiplication of yards of material times a unit price per yard as being too remote and *495 speculative. We set out the ruling complained of:
Appellants' sole stated objection to the question asked witness Porterfield was that Mr. Orme was leading the witness. The court correctly overruled this objection. By stating this ground of objection to the question asked, appellants waived all other unstated grounds of objection to the question. Granberry v. Gilbert, 276 Ala. 486, 163 So. 2d 641 (1964).
Appellants list three separate occasions where the trial court made rulings in Assignment of Error 2. Alabama follows the rule that where one assignment of error relates to two separate and specific rulings of the trial court, the assignment of error will fail unless each ruling is erroneous. Hoefer v. Snellgrove, 288 Ala. 407, 261 So. 2d 431 (1972). The ruling above alluded to was not erroneous; therefore, Assignment of Error 2 is bad in its entirety.
Assignment of Error 2 is further defective in that it is too general.
As indicated, many of the assignments of error were either too general or were not argued in brief. Act No. 964, Acts of Alabama, 1971, Regular Session, approved September 1, 1971, conferred upon the Supreme Court of Alabama broad "rule-making power." This Court has appointed an advisory committee to assist in developing, for this Court's adoption, a new system of rules of procedure on appeals to simplify appellate procedure and promote the speedy determination of appeals on the merits. This advisory committee is now working on this project. Rule 52, adopted April 23, 1973, should facilitate compliance with our Rules of Practice, in some areas, until new appellate rules are adopted by this Court. This Court must follow the interpretations made by this Court in determining compliance with the Rules of Practice until new appellate rules are forthcoming.
Before this case was submitted to this Court, appellee filed a motion for dismissal of the appeal, citing as grounds therefor that the transcript did not show the issueance or service of a citation of appeal, in compliance with Title 7, Section 801, Code of Alabama, and that citation of appeal had not been served on appellee.
After appellee filed his motion and prior to submission of this cause, citation of appeal was served on appellee. Subsequently, appellants filed a motion for writ of certiorari to perfect the record, which was granted. The citation of appeal has not been certified to this Court by the clerk of the Pike County Circuit Court as a supplement to the record.
This Court has previously held that where appellant, several weeks before the cause is ready for submission to the reviewing court, files a supplemental transcript which shows belated compliance with requirements that a citation of appeal be served and a certificate of appeal be made out and filed, alleged deficiencies do not require dismissal of the appeal. Blalock v. Johnson, 270 Ala. 654, 121 So. 2d 604 (1960); Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So. 2d 331 (1965).
Therefore, because the grounds of the motion to dismiss were eliminated prior to submission, and in view of our affirmance *496 of the judgment, the motion to dismiss is due to be overruled.
While we find that no error to reverse has been presented, we do note that the judgment of the trial court should be modified in one particular. The judgment describes condemnees' property (Tract 33) as it was initially described in the original petition. However, as noted previously, the State subsequently amended its description of this land, redescribing Tract 33 as Parcels 1 and 2, still owned by appellants herein, and designated as Tract 33-A the part conveyed to Troy Motors, Inc. As also noted earlier, when appellants appealed to the circuit court, it was only as to "Tract 33," which we interpret to mean Tract 33 consisting of Parcels 1 and 2, as described in the amended petition. This interpretation is in accordance with the probate court's order, which was clearly based on the descriptions in the amended petition. Careful reading of the record of proceedings in the circuit court leads only to the conclusion that the trial judge and all parties understood the proceedings to be applicable only to Parcels 1 and 2 of Tract 33, that is, to Tract 33, as amended. In light of these facts, we are of the opinion that the use in its judgment of the original petition's description of Tract 33, including Tract 33-A, which was not before the court in that proceeding, was merely an oversight by the circuit court. The court is hereby directed to amend its judgment so that the description therein is of Parcels 1 and 2 of Tract 33, as in the amended petition.
The judgment of the trial court is affirmed in all respects except that portion which incorrectly describes the property condemned. In order for the trial court to correct its judgment in this respect, the cause is remanded.
Affirmed in part; remanded with directions.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.
[1] We note that such price was not directly stated in the admitted deed. The only consideration stated in the deed is "One Hundred Dollars and other valuable consideration." Revenue stamps in the sum of $29.50 were affixed to the deed, however. | June 7, 1973 |
dfdc70bb-4059-43b9-a16f-666a0e0eaf77 | Nichols v. Bolding | 277 So. 2d 868 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 868 (1973)
Billy Floyd NICHOLS et al.
v.
Russell BOLDING, Individually and as Mayor of the City of Decatur, et al.
Russell BOLDING, Individually and as Mayor of the City of Decatur, et al.
v.
Billy Floyd NICHOLS et al.
SC 119, SC 119-X.
Supreme Court of Alabama.
May 10, 1973.
*869 Smith & Huckaby, Huntsville, for appellants and cross-appellees.
A. J. Coleman, Decatur, for appellees and cross-appellants.
JONES, Justice.
Appellants and cross appellees (Firefighters) were plaintiffs below seeking a declaratory judgment against the appellees and cross appellants (City) and appeal from a final decree declaring the rights of the parties thereunder.
We set forth in haec verba the decree issued by The Honorable Newton B. Powell, Circuit Judge, Morgan County, Alabama:
"This cause is submitted by agreement of the parties in open court for final judgment on the pleadings, stipulations and proof. The petition was filed by some individual members of the fire department of the City of Decatur and as members of Decatur Firefighters Association Local 1437, Labor Union, seeking a declaratory judgment as to their rights as petitioners to deal with the governing body of the City of Decatur in the field of labor and management problems. The City, the Mayor and all except one Councilman, individually, and in their official capacity, were made defendants. It is alleged that Decatur Firefighters Association Local 1437 has thirty-seven members in good standing who are employees of the Decatur Fire Department and that this represents 71% of the employees of the Fire Department of the City of Decatur. It is further alleged that representatives of this association proposed a contract relating to wages and working conditions to the defendants. It involves Union recognition, dues collection, pay rates, changes in the merit system and many other things related to the field of labor and management. It is further alleged that a controversy arose between the parties regarding the legal authority of the defendants to enter into such proposed contract with the petitionersthe defendants contending that they could not legally enter into such contract, and the petitioners contending to the contrary. It is further alleged that the defendants declined to negotiate with the petitioners on the subject involved. The respective rights [relating to the questions of labor and management] of *870 the parties have become the subject of controversy.... The proceeding is brought under the provisions of Section 156 et seq., Title 7 of the Code of Alabama. On demurrer to the petition as amended the Court eliminated the individual defendants, and left before the Court the individuals in their official capacity as well as the City of Decatur. The Court, also, determined that the demurrer was good to those aspects of the petition seeking an advisory opinion on the question of the right to picketing, dues check-off arrangement between the City and the Association, and some other provisions of the proposed contract over which there does not now exist a controversy, since the question of adopting the proposed contract is at issue. Because the petition was good in part, and the Court considered the demurrer general as to the aspects of the petition, it was overruled. The Court is of the opinion that the substantive law provides that courts should not issue advisory opinions, and that rights of the parties should not be declared on the aspects of the petition calling for an advisory opinion. This leaves the pleadings in the same state as if demurrer had been sustained to these aspects of the petition. The Court will consider the legality of an agreement between the petitioners and the respondents with reference to wages, working conditions, etc., and the related questions as to the extent that the law of the State of Alabama limits the right of the City and its officials to negotiate and to enter into any such agreement.
"The rights of organized labor to have the governing bodies of governmental units deal with them as an employer is a relatively new field in the law. There is precedent in various jurisdictions on some of the legal questions raised in such controversy. It seems to be established in this jurisdiction that a public governing body cannot enter into a valid labor contract with a labor organization concerning wages, hours, and conditions of employment in the absence of express constitutional or statutory authority to do so. International Union of Operating Engineers, Local 321 vs. Waterworks Board of The City of Birmingham, 276 Ala. 462, 163 So. 2d 619. There has been a division of authority as to whether or not such contracts are permissible. Some have held they are permissible in certain limits if not prohibited by constitutional or statutory impediments. Our Alabama Court has held in the case cited above that there must be authorization by constitution or statute in order to justify such binding contract. In so holding our Court cites as a general rule that public employers cannot abdicate or bargain away their continuing legislative discretion with reference to the subject matter of any labor contract. It is said that public officials have no authority to surrender any of their responsibilities as public officials at a negotiating conference. A similar rule is set out in a note on this subject decided by our Supreme Court in the case cited above. See also 31 A.L.R.2d 1142, at page 1170.
"The case of International Union, etc. v. Waterworks, etc., supra, does not answer the questions presented in this proceeding. It is conceded in argument that the City may not be compelled to negotiate with the petitioners, nor will a labor contract resulting from such negotiations be binding on the public body. It is insisted, however, by the petitioners that though the public officials may not be compelled to negotiate, and though any contract would not be binding upon them, that the defendants are within their legal rights to exercise their discretion in negotiating with the petitioners in an effort to reach an agreement which will be acceptable to both petitioners and defendants, but which will be terminable at the will of the defendants. The case of International Union, etc. vs. Waterworks, etc., supra, was decided in 1964. In 1967 the Legislature of Alabama passed an act which prohibited any person to hold any commission or employment as a firefighter or fireman in the service of the State or any municipality who participates in any strike or asserts any right to strike against the State or any municipality of *871 the State, or be a member of an organization who asserts the right to strike against the State or any municipality in the State knowing that the organization asserts such right. Act No. 229, Approved August 16, 1967, Section 450(3), Title 37, Code of Alabama. The same Act provides that any firefighter within the State who complies with the provisions of the Act cited above is assured the right and freedom to join a labor union and shall have the right to present proposals relative to salaries and other conditions of employment, etc. The parties make no issue of the rights of the petitioners to organize a labor union and be and remain members of the same under the provisions of this Act. It is noted that in 1953 our legislature passed an act which prohibited membership in any labor organization for all public employees, with some exceptions. Section 317, Title 55, Code of Alabama. The change in policy of the State of Alabama as expressed in the 1953 statutes, supra, and the 1967 statute, supra, giving the right to firefighters to organize labor unions and present proposals relative to salaries and other conditions of employment, etc., is a significant change of policy by the State of Alabama in this field in the years between the two acts. Though there is no controversy between the parties as to the right of the petitioners to belong to a labor organization, there is disagreement as to the meaning of the phrase of this Act which provides: `... and shall have the right to present proposals relative to salaries and other conditions of employment by representatives of their own choosing.' Is this the statutory authority for public bodies to deal with labor unions which was referred to in International Union, etc. vs. Waterworks Board, etc., supra? Did the legislature anticipate the firemen who became members of unions and exercised their rights to present proposals relative to salaries and working conditions could not expect the reasonable discussion of these proposals by the public officials to whom they were presented? There is nothing in this statute which would indicate that the Legislature intended to force public officials to negotiate in the sense that negotiation is required of private employers, and there is nothing to indicate that by this act the Legislature intended to vitiate the rule that public officials may not abdicate their responsibilities by negotiating a contract which would replace their discretion on important matters. There is some reason to conclude, however, that the legislature did not intend to limit the rights of firefighters to merely writing out proposals and depositing them silently with the proper authority.
"The issue of the right of the firefighters associations to use a strike, a slowdown, or other such techniques used in private industry has been eliminated from the pleadings in this case; but, since the right to use such economic pressures might conceivably be asserted by proposals authorized by the statute, the Court observes that the State has the right to prohibit violence and strikes contrary to the public interest. The Court is of the opinion that the Legislature of Alabama did not intend to abrogate this right by the statute which gives firefighters the right to present proposals relative to salaries and other working conditions. It would follow that no proposals relative to salaries and other working conditions which explicitly or implicitly attempts to assert the right of the firefighters to strike or to use any similar technique against the public interest would be a valid one authorized by the firefighter statute mentioned above. Many states do not permit labor unions in public employment; none of the states which permit such organizations authorize a contract between the employer and employee which recognizes a right to strike against public interest. The statute which gives the right to organize and present proposals denies the right to strike. Section 450(3), Title 37 of the Code of Alabama. We are speaking of proposals of the right to strike since no strike issue is present under the issues of this case as stated above.
"There seems to be a field of operation for Section 2 of the `Firefighters Act', *872 Section 450(3), Title 37, Code of Alabama. Since the City can make no binding contract on this subject as noted above, and since the firefighters are prohibited from striking against the public, this field of operation of the second section of the statute has not been explored to a great extent. In the State of New Jersey, a constitutional provision similar to the `Firefighters Statute' quoted above was interpreted by the New Jersey Court. Among other things, it was observed:
This is according to the simple rule of agency, and it appears that this principle would apply under our Alabama statute. The same case states the following:
"This Court is of the opinion that the defendants are under a duty to receive proposals from the petitioners in good faith relative to wages and working conditions. This may be done in person, or by duly authorized representatives of the defendants, who must report to the defendants. The defendant officials must make the decisions whether they hear the proposals and grievances personally, or by representatives. They may, if they so desire, make a memorandum of the proposals for the record as well as a memorandum of any comments or opinions relative to the same and their intentions and plans concerning said proposals. All of this is within their legal rights, but they are not obligated under the state of the law of this state to do more than receive the proposals and consider them in good faith. This the `Firefighters Statute' requires by implication. There are no express or implied provisions regarding a written memorandum expressing the intention of the parties with reference to these matters; under the general powers of the defendants in their official capacities they have the power and authority in their discretion to make the memorandum mentioned above. It was said in State Board of Regents vs. United Packing House, etc. (Iowa), 175 N.W.2d 110:
"This Court is of the opinion that the same rules of law apply to the facts in issue before us. Since the Legislature of Alabama has chosen to give to Firefighters the right to make proposals to governing bodies relative to wages, working conditions, etc., a field of operation of this statute is necessarily implied. Though the field is narrow when compared to the field of operation of collective bargaining in private industry, it is, nevertheless, present. Perhaps it was the opinion of the Legislature that it is a good policy for any employer and employee to reason together. Anything which will improve communications in good faith between employer and employees can be made a progressive move.
*873 "In response to the pleadings of this case the Court, therefore, declares:
"1. The petitioners and the defendants cannot make a contract which would bind the defendants relative to wages, working conditions, etc.
"2. The defendants cannot be compelled to negotiate toward a labor contract as the terms are generally understood in the field of labor and management.
"3. The petitioners or their duly authorized representatives may appear before the defendant officials or their authorized representatives and make proposals as to wages, working conditions, etc.
"4. The petitioners may not legally make any proposals which would give them explicitly the right to strike against the public interest.
"5. The defendant officials are under a duty to hear the petitioners or their representatives in good faith on the subjects of wages, conditions of employment, etc., and the said officials are under a duty to consider the same in good faith. The final decision on any such issue rests with the public officials after they have received and considered proposals of the petitioners or their representatives in good faith.
"6. No representative may appear for any firefighter who has not authorized such appearance. The rule which gives exclusive representation to one union or representative in private industry has not been extended to public employees by the State or Federal government.
"7. Since no contract can be binding on the defendant officials, the petitioners are not authorized to picket in order to compel such contract.
"8. Petitioners and the defendants may enter into a written memorandum of proposals and plans relative to wages and working conditions, their respective opinion and intentions concerning the same if it is agreeable to both parties that they do so; but, neither the petitioners nor the defendants are compelled to enter into such written memorandum.
"Since it is mutually beneficial to the petitioners and the defendants in this proceeding that their respective rights be defined and declared, IT IS ORDERED that the petitioners pay one-half of the costs of this proceeding and the defendant, City of Decatur, which is represented by the other defendants, pay one-half of the costs of this proceeding.
"This the 14th day of June, 1972.
The Firefighters conceded in oral argument of this cause that the only assignment of error insisted upon relates to holding number 8 of the trial court's decree which limits the written expression between the parties to a memorandum. They contend that, while any such written document setting forth the terms of any agreement is concededly legally unenforceable, the court should have declared it proper and permissible for the parties to consummate their negotiations by the execution of a formal, though unenforceable, written contract.
The City, on the other hand, cross assigns error and insists that holding number 8 exceeds the legal authority of the court in declaring that the parties "may enter into a written memorandum of proposals and plans relative to wages and working conditions ..."
In summary, the Firefighters contend the decree did not go far enough while the City contends that it went too far.
After careful consideration of the above decree and the briefs and arguments of respective counsel, we are convinced that the decree of the trial court is correct in every respect and that any addition thereto or comment thereon by us would be redundant. *874 We therefore adopt the opinion of the lower court as the decree of this Court.
Affirmed.
On the appeal, MERRILL, COLEMAN, HARWOOD, McCALL and FAULKNER, JJ., concur.
HEFLIN, C. J., and MADDOX, J., dissent.
On the cross appeal, HEFLIN, C. J., and HARWOOD, MADDOX, McCALL and FAULKNER, JJ., concur.
MERRILL and COLEMAN, JJ., dissent.
HEFLIN, Chief Justice (dissenting):
The firefighters' only contention of error is that the final decree of the trial court should have held that a written agreement between the City and the firefighters was permissible
The Firefighters' Act (Act No. 229, Acts of Alabama, 1967, Regular Session, approved August 16, 1967) assured all firefighters serving the state or any municipality in the state the right and freedom of association, self-organization, and the right to join or to refuse to join a labor organization and to have the right to have the representatives of their own choosing to present proposals relative to salaries and other conditions of employment. However, this Act limits this right by prohibiting such a firefighter from striking or asserting the right to strike or being a member of an organization that asserts the right to strike against the state or any municipality, knowing such organization asserts such right.
Black's Law Dictionary, Revised 4th Edition, 1968, on page 1015 defines a labor organization as follows:
Webster's Third New International Dictionary, Unabridged, 1966, defines labor union as follows:
"A labor organization created for the purpose of advancing (as by collective bargaining) its members' interests (as in respect to wages and working conditions)."
A labor union certainly is not a social organization, but is an organization that has among its primary functions the following:
When the legislature expressly assured all firefighters serving the state, or any municipality, the right to join a labor organization, it necessarily assured the firefighters the right to have the labor organization act as their collective bargaining agent and their signatory agent to the collective bargaining agreement.
Therefore, I am of the opinion that the relief sought by the firefighters on this appeal should be granted.
MADDOX, J., concurs.
COLEMAN, Justice (dissenting):
The plaintiffs seek declaratory relief as to their rights as employees of the City *875 Fire Department in their dealings with the city governing body.
From the judgment rendered, plaintiffs appeal and argue two assignments of error, to wit:
I agree with the majority that plaintiffs' assignments 1 and 6 are not sustained.
Defendants have cross assigned errors. Cross assignment No. 3 recites as follows:
In the opinion of the trial court, at the end of Paragraph 8, the following words appear in addition to the words set out in cross assignment No. 3, to wit:
The following definition of memorandum is found in Black's Law Dictionary, 4th Edition 1951, pages 1135, 1136:
In 1964, in International Union of Operating Engineers, Local 321 v. Water Works Board, 276 Ala. 462, 163 So. 2d 619, this court held that a public employer, such *876 as the defendants, has no authority to engage in collective bargaining or enter into collective bargaining contracts without specific legislation authorizing the public employer to do so. The following is an excerpt from the opinion:
276 Ala. 464, 465, 163 So. 2d at 621, 622
As it appears to me, the declaration in the instant case in Paragraph 8 of the judgment, that the city governing body (the defendants) "... may enter into a written memorandum of proposals and plans relative to wages and working conditions, their respective opinion and intentions concerning the same ..." (Emphasis Supplied), is a declaration that the parties may bargain as to wages and working conditions and "may enter into" an agreement concerning the same "if it is agreeable to both parties that they do so." Plaintiffs argue that the declaration in Paragraph 8 is now authorized by a statute enacted in 1967 which recites as follows:
The statute provides that firefighters are assured of the right and freedom of association, self-organization, to be members of any labor organization which complies with the statute, and to present proposals relative to salaries and other conditions of employment by representatives of their own choosing. Nowhere in the quoted statute is authority granted to any municipality, or its governing body, to engage in collective bargaining as to salaries or conditions of employment, or to "enter into" a written memorandum relative to wages and working conditions. In fact, the statute does not grant any authority of any kind to a city or its governing body. Since no express power is granted to the municipality, there can be no implication that any implied power is reasonable or necessary to enable the exercise by the city or any power expressly granted.
In International Union, supra, this court quoted with approval from an opinion of the Supreme Court of Florida in Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. 2d 194, 165 A.L.R. 967, as follows:
Assuring or granting to firefighters the rights of freedom of association, of organization and membership in unions, and to present proposals relative to conditions of employment, is not a grant to the governing body of a city of the right to engage in collective bargaining with the representatives of employees of the city or to "enter into" a written memorandum as to conditions of employment. No grant of such authority to the city may properly be implied from the statute as I understand it.
In the absence of the grant of such authority to the defendants, the declarations of Paragraph 8 of the judgment appear to me to be directly in conflict with the holding of this court in International Union, supra. Being of the opinion that the statute relied on does not grant such authority to defendants, I would hold that the declaration in Paragraph 8 of the judgment appealed from is erroneous and would reverse the judgment in this respect.
MERRILL, J., concurs. | May 10, 1973 |
a48f571f-6448-4508-8d73-e086f05809f8 | Johnson v. Hodge | 279 So. 2d 123 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 123 (1973)
Roy JOHNSON
v.
Bobby HODGE and C. C. Hodge.
SC 259.
Supreme Court of Alabama.
June 7, 1973.
*124 Radney & Morris, Alexander City, for appellant.
No brief for appellees.
MADDOX, Justice.
Plaintiff, Roy Johnson, brought this action in the nature of ejectment to recover possession of 42½ acres of land. Plaintiff claimed ownership of the fee and the right to possession by virtue of a deed executed in 1925 by his grandmother, Mrs. M. E. Hodge. This 1925 deed reserved a life estate in Mrs. Hodge, the grantor, granted a life estate to plaintiff's mother, Gladys Hodge Johnson, and granted the remainder to plaintiff. At the time of the filing of this suit, both Mrs. Hodge and Mrs. Johnson were deceased, so that the life estates were terminated.
The complaint asserts that defendants claim to own the property in question under a deed executed by Gladys Hodge Johnson, who owned only a life estate in the property and is now deceased.
*125 At the conclusion of the trial, the trial judge gave the affirmative charge, with hypothesis, for plaintiff.
Subsequently, the trial court granted defendants' motion for new trial, without stating the ground or grounds upon which the new trial was granted. On this appeal by plaintiff, the substance of each assignment of error is that the trial court erred in granting a new trial in the cause.
Appellees did not file a brief. The case was submitted in this Court on the record and appellant's brief.
Either party in a civil case at law has a statutory right of appeal from a decision of the circuit court either granting or refusing a motion for new trial. Title 7, Section 764, Code of Alabama (Recomp.1958). However, granting or refusing a motion for new trial is a matter resting largely in the discretion of the trial court, and the exercise of this discretion carries with it a presumption of correctness. Shepherd v. Southern Ry. Co., 288 Ala. 50, 256 So. 2d 883 (1970); State v. Edmundson, 282 Ala. 293, 210 So. 2d 926 (1968); Grandquest v. Williams, 273 Ala. 140, 135 So. 2d 391 (1961). Furthermore, on appeal from an order granting a new trial, the record must be construed against the appellant. King v. Scott, 217 Ala. 511, 116 So. 681 (1928). Therefore, an order granting a new trial will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Shepherd v. Southern Ry. Co., 288 Ala. 50, 256 So. 2d 883 (1970); Whitman v. Housing Authority of City of Elba, 272 Ala. 245, 130 So. 2d 362 (1961). It has been said that an appellate court is even more reluctant to reverse an order granting a new trial than one denying a new trial. 58 Am.Jur.2d New Trial § 212, p. 433 (1971).
When the trial court's ruling in granting a new trial is based on no specific ground, as here, the ruling must be sustained on appeal if any good ground is presented by the motion. Shepherd v. Southern Ry. Co., 288 Ala. 50, 256 So. 2d 883 (1970); City of Tuscaloosa v. Townsend, 274 Ala. 268, 147 So. 2d 824 (1962). In 58 Am.Jur.2d New Trial § 212, p. 434 (1971), this rule is stated, as follows:
Therefore, the proper course for an appellant who seeks reversal of the trial court's decision granting a new trial is, by citation of authority and argument directed to each and every ground of the motion for new trial, to demonstrate that no ground of the motion is good. In no other way can appellant meet his burden, which is to show error in the action of the court complained of and that such error was prejudicial. King v. Scott, 217 Ala. 511, 116 So. 681 (1928).
The motion for new trial in the instant case contains 24 grounds. Appellant's argument is not specifically directed to any particular ground or grounds of the motion.
It is frequently stated that an assignment that the trial court erred in overruling the motion for new trial justifies consideration of any ground of the motion stated with sufficient definiteness to direct the court's attention to the alleged erroneous ruling, if that clear and specific ground is adequately argued in brief. National Life & Accident Ins. Co. v. Allen, 285 Ala. 551, 234 So. 2d 567 (1970); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So. 2d 37 (1970). And, grounds of a motion for new trial not insisted on in argument by counsel for appellant will not be considered on appeal. Smith v. Pierce, 273 Ala. 321, 134 So. 2d 201 (1961). These holdings are equally applicable to cases in which the assignment is that the trial court erred in granting the motion for new trial.
*126 See Water Works & Sanitary Sewer Bd. of City of Montgomery v. Norman, 282 Ala. 41, 44, 208 So. 2d 788 (1968); Popwell v. Shelby County, 272 Ala. 287, 130 So. 2d 170 (1960). Therefore, in the instant case, we will only consider clearly and specifically stated grounds of the motion for new trial which are argued in appellant's brief. Grounds not argued are waived.
The appellant has failed to show that some legal right was abused or that the record plainly and palpably shows that the trial court committed reversible error.
This cause is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | June 7, 1973 |
fb58741f-0d25-40af-9872-ddf4684e6618 | Brown v. Vanity Fair Mills, Inc. | 277 So. 2d 893 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 893 (1973)
Douglas BROWN
v.
VANITY FAIR MILLS, INC., a corporation.
SC 189.
Supreme Court of Alabama.
May 10, 1973.
*895 William D. Melton, Evergreen, for appellant.
Hare & Hare, Monroeville, for appellee.
MADDOX, Justice.
Douglas Brown, in a one-count complaint, which the Reporter of Decisions will set out in full, charged that one of Vanity Fair's employees, Herman Melton, came to the cabinet shop where he was working and hit him in the head with a hammer, severely injuring him. Brown contends Vanity Fair is responsible, as we understand his contention, on the ground that Vanity Fair knew Melton had "dangerous proclivities," and that Vanity Fair was negligent in employing and retaining Melton and entrusting the hammer to him.
Vanity Fair's demurrer to the complaint was sustained. Plaintiff Brown took a non-suit and appealed from the judgment of non-suit. We affirm.
Brown frames the issue presented as follows:
Construing the allegations of the complaint most strongly against the pleader, in ruling on the demurrer, as the lower court was required to do under our present rules of pleading,[1] the court was correct in ruling that the allegations fail to state a cause of action.
The appellant apparently seeks to fasten liability on Vanity Fair on the theory that Vanity Fair was negligent in the selection and retention of the employee committing the assault. While it has been held that an employer has a duty to exercise reasonable care for the safety of his customers, patrons, or other invitees, and in fulfilling this duty he must use due care to avoid the selection or retention of an employee whom he knows or should know is a person unworthy, by habits, temperament, or nature, to deal with the persons invited to the premises by the employer,[2] we do not think that rule is applicable here. In fact, we do not believe plaintiff below proceeded on this theory. The complaint does not allege that the servant was acting within the line and scope of his employment at the time of the assault nor that the servant was in any way furthering the master's business at the time and place of the assault. Therefore, we assume that plaintiff does not seek to recover on the principalagent or employer-employee relationship.
Appellant argues that he stated a cause of action, since he alleged that Vanity Fair hired and retained Melton as a repairman and that Melton was known to have "dangerous proclivities," and that Vanity Fair entrusted Melton with a hammer and "allowed" him to "be upon the public streets and places in Monroeville, Alabama in possession of ... tools, at will." In short, appellant says that if Vanity Fair had "properly investigated this particular employee, the employee would not have been entrusted or put in a position, with the tools to create damage." Of course, there are times when the entrustment of a dangerous instrumentality to a known incompetent can be actionable. Negligent entrustment is defined in Restatement *896 (Second) of Torts § 390, as follows:
The elements of negligent entrustment have been listed as follows:
See Collins v. Arkansas Cement Co., 453 F.2d 512 (8th Cir. 1972); Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark.L.Rev. & B. Ass'n J. 101 (1966).
Most of the negligent entrustment cases involve automobiles, but the all-embracing term "chattels" used in the Restatement is not restricted to automobiles.
We are aware that some jurisdictions have held that an "employer" can be held liable for the actions of his "agent" or "independent contractor" on the theory that the employer knew or should have known of the vicious propensities of the "agent" or "independent contractor." See Bennett v. T & F Distributing Co., 117 N.J.Super. 439, 285 A.2d 59 (1971). Alabama courts have not ruled on the question as far as we can determine.
Because of the conflicting interests to be considered (the protection of innocent third persons as opposed to the possibility that employers would not hire those with a bad past), we await a proper case for the adoption of a proper rule in such instances. Suffice it to say that the allegations in this complaint fail to state a cause of action under a most liberal interpretation of the negligent entrustment doctrine, and the trial court did not err in sustaining the demurrer to the complaint. The judgment of non-suit is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.
[1] Rule 8 of the Alabama Rules of Civil Procedure which become effective July 3, 1973, changes the long-standing doctrine in Alabama of construing the pleadings strictly against the pleader when ruling on demurrers. Cf. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443 (1932). The goal of Rule 8 is to construe the pleadings so as to do substantial justice. See Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
[2] See Annotation, Assault by Servant, 34 A.L.R.2d 372, 390. | May 10, 1973 |
bab2b4b0-d256-497a-888d-94acdf42c66b | Geohagan v. General Motors Corp. | 279 So. 2d 436 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 436 (1973)
Clinton GEOHAGAN, Administrator of the Estate of Barbara Geohagan Evans, Deceased
v.
GENERAL MOTORS CORP. and McDaniel Motor Co.
SC 101
Supreme Court of Alabama.
May 24, 1973.
Rehearing Denied July 5, 1973.
*437 Tipler, Fuller & Barnes, Andalusia, for appellant.
Powell & Sikes, Andalusia, for appellee, General Motors Corp.
Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee, McDaniel Motor Co.
HARWOOD, Justice.
This is a products liability case involving a claim for wrongful death instituted by the administrator of the estate of plaintiff's decedent against General Motors Corp. (General Motors), the manufacturer of the vehicle involved, and McDaniel Motor Co. (McDaniel), the retail vendor. The complaint, as finally amended, presented two counts; viz, Count One-D and Count Two-C, to which the defendants ultimately plead the general issue in short by consent. In substance Count One-D charges that the combined negligence of the defendants proximately resulted in the death of the plaintiff's intestate, Barbara Geohagan Evans. Count Two-C alleges that in connection with the sale of the vehicle the defendants impliedly warranted its suitability and fitness, the breach of which resulted in the fatal injury to plaintiff's intestate.
The trial court, at the conclusion of the testimony, granted each defendant's request for the affirmative charge as to Count Two-C and submitted the case to the jury on Count One-D only. This appeal is taken from the judgment rendered by the Circuit Court in accordance with the jury's verdict in favor of the defendants-appellees, and from the Circuit Court's action in granting defendants' request for the affirmative charge as to Count Two-C.
During her lifetime, Barbara Geohagan Evans was married to Rodney Evans. Mr. Evans was killed in military service subsequent to the time of his wife's fatal crash and prior to the date this suit was commenced by George Geohagan, Barbara's father, as administrator of her estate. On September 30, 1967, Rodney Evans purchased a new 1968 Chevrolet Camero from McDaniel. The car was undisputedly a General Motors product. In June of 1968, Rodney Evans and Barbara Geohagan were married and during their mutual lifetime the automobile involved was used by each of them as the family car. Barbara was driving the car alone on September 5, 1968, along Highway 52 between Opp and Samson, Alabama, at which time the car left the road at a high rate of speed, ran *438 into a culvert and crashed into a utility pole. Barbara was killed in the crash.
The factual theory of the plaintiff's case was that the crash resulted from defective motor mounts, the failure of which caused the engine to shift within the engine compartment locking the accelerator at full throttle. Since this court's opinion rests solely on the question of law presented by the pleadings, no further recitation of the facts is deemed necessary. Suffice it here to observe that the evidence in support of the opposing contentions of plaintiff and of defendants relating to the cause of the crash was in conflict.
The matter urged by the appellant as error pertains to those assignments of error to the effect that the lower court erred in giving the affirmative charge for the defendants (appellees) as to the breach of implied warranty count, i. e., Count Two-C.
The basic issue here considered is whether an action for breach of implied warranty will legally sustain a claim for wrongful death. Realizing that this is a cause of first impression in Alabama, we take special note of the fact that we have been favored with excellent briefs by counsel for each of the parties.
In Alabama, as generally elsewhere, punitive damages are not recoverable for breach of contract. Wood v. Citronelle-Mobile Gathering System, 5th Cir., 409 F.2d 367.
As stated by de Graffenried, J., in Millsap v. Woolf, 1 Ala.App. 599, 56 So. 22:
Regardless of the view in the earlier development of the action of breach of warranty that it was based on tort, certainly as the action developed it was regarded as contractual, and such was the view of our cases at the time of the passage of the Uniform Commercial Code by the Alabama Legislature in 1965, which code was to be effective at midnight on 31 December 1966.
Damages for breach of a contract (or breach of warranty) are awarded to put a party in the same position he would have occupied if the contract had not been violated. Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 180 So. 2d 255. On the other hand, damages under our wrongful death statutes are punitive in nature, and are not compensatory. Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So. 2d 33. Such view is compatible only with the concept that any action permissible under our wrongful death acts must in nature be in tort and not in contract.
The Alabama, Uniform Commercial Code is contained in Act No. 549, 1965 Acts of Alabama. This Act appears as Secs. 1-101 through 9-505, of Title 7A, Michies Recompiled Code of Alabama 1958 (1966 Added Volume). For convenience we will refer to the provisions of the Act as they appear in the Recompiled Code.
*439 Secs. 1-102(1) and 1-102(2) (a) and (b) are as follows:
Thus it is crystal clear that the purpose of the legislature in passing our version of the Uniform Commercial Code was to regulate commercial transactions. By no stretch of the imagination can it be deemed that actions for wrongful death are commercial transactions.
Our decisions since the enactment of our wrongful death acts have made it clear that such acts are intended to protect human life, to prevent homicide, and to impose civil punishment on takers of human life. The damages awarded are punitive in nature. The personal representative in prosecuting a wrongful death action acts as an agent of legislative appointment for declaring the public policy evidenced by the wrongful death acts. An action under our wrongful death acts comes into being only on death from some wrongful act. See innumerable citations and annotations under Sec. 123, Title 7, Code of Alabama 1940.
Thus a wrongful death action differs entirely from an action for a breach of warranty, express or implied, in a contract, for as respects liability for breach of a warranty the good faith, or lack of faith, in promisor in making the contract of warranty is immaterial. Attalla Oil & Fertilizer Co. v. Goddard, 207 Ala. 287, 92 So. 794.
The above principles were well settled by the decisions of this court (and the courts of many of our sister states) at the time of the passage of our Uniform Commercial Code. Our wrongful death acts, and the decisions of this court thereunder have been the law of this state for decades.
Where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all things not expressly mentioned. Champion v. McLean, 266 Ala. 103, 95 So. 2d 82.
We do not see how the legislature could have more clearly expressed the operative scope of the Alabama Uniform Commercial Code than it did in the Section 1-102(2), Subsections (a) and (b) of Title 7A, above mentioned, i. e., that the underlying purpose and policy of the act was "to simplify, clarify, and modernize the law governing commercial transactions," and "to permit the continued expansion of commercial practices through custom, usage and agreement of the parties." (Emphasis ours.)
So far as can be determined from a reading of our Uniform Commercial Code, there is not one word, sentence, paragraph, clause, or section which in anywise even suggests that for the breach of an express or implied warranty in a contract any person is given a right to maintain an action for a wrongful death. On the other hand, the precision with which the legislature has defined the purpose and policy of the act, limiting the same to commercial transactions, clearly demonstrates that it was not the intent of the legislature in enacting the Uniform Commercial Code to create a wrongful death action in case of a breach of warranty of the contract involved.
This precise point was before the U.S. District Court for the Northern District of Alabama in Knight, Admr. v. Collins, et al., 327 F. Supp. 97 (1971). In an opinion by Pointer, J., it was set forth:
It is to be noted that in the special concurrence of Faulkner, J., and the dissenting opinion of Jones, J., in Battles v. Pierson Chevrolet, 290 Ala. 98, 274 So. 2d 281, it is stated that Georgia does not allow recovery for death in a breach of warranty action. Apparently, such is also the rule in Florida. To like effect see Post v. Manitowoc Engineering Co., 88 N.J.Super 199, 211 A.2d 386; Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638; Bloss v. Dr. C. R. Woodan Sanitarium Co., 319 Mo. 1061, 5 S.W.2d 367; Wadleigh v. Howson, 88 N.H. 365, 189 A. 865. See also annotation in 86 A.L.R.2d 316.
We hold that no contractual cause of action for wrongful death is created by our Uniform Commercial Code arising from a breach of warranty, and that actions for wrongful death can arise in this state and be processed only under our wrongful death acts.
The lower court therefore did not err in withdrawn from the jury's consideration Count 2C, and the judgment here appealed from is due to be affirmed.
Affirmed.
MERRILL, COLEMAN, BLOODWORTH and McCALL, JJ., concur.
MADDOX, J., concurs specially.
HEFLIN, C. J., and FAULKNER and JONES, JJ., dissent.
MADDOX, Justice (concurring specially).
I agree with the majority that a wrongful death action cannot be maintained for breach of an implied warranty, but since the dissenting opinions discuss the effect of the Uniform Commercial Code, Title 7A, Section 2-318 and its controlling effect on this litigation, I desire to express my separate views on this question, which is one of first impression insofar as I can determine. I can appreciate some of the views the dissenters have about what effect the adoption of the Uniform Commercial Code, with amendments, had on products liability law in Alabama. I think its adoption had a tremendous impact. For one thing, its adoption loosened the privity requirement, vertically and horizontally, in product liability cases. One legal writer thinks that the adoption of the "non-uniform" Commercial Code transformed "the Alabama personal injury warranty action, from the contractual beast it has historically seemed to be, into a new animal enjoying a predominantly tort pedigree."[1] I am unable to agree such a transformation occurred and that the Legislature changed the nature of the warranty action from one sounding in contract to one sounding in *441 tort. Admittedly, the Legislature stripped the "warranty" action of much of its former contract regalia. In other words, while the "warranty" action was stripped of much of its contract cloak, it was not stripped of its name.
I am also aware that it is generally accepted that the action for breach of warranty originally was considered to be tortious in nature. Some of the legal scholars think the name of the product liability action has always been tort and that it has merely paraded around in "warranty" or contract clothing for some 40 or 50 years. Prosser classified "warranty" as "a freak hybrid born of the illicit intercourse of tort and contract, (which) had always been recognized as bearing to some extent the aspects of a tort." Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 800 (1966).
Dean Prosser states that the trouble always lay with the use of the word "warranty" and he may be right. He maintains the "warranty" theory has been from the outset only a rather transparent device to accomplish the desired result of strict liability. He pointed out in an article entitled "The Fall of the Citadel," 50 Minn.L. Rev. 791, 802, as follows:
Unquestionably, by adoption of the Uniform Commercial Code, the Legislature intended to provide, and did provide, consumer protection which was unavailable before in instances where products were not reasonably safe. However, in granting this consumer protection the Legislature used the word "warranty," which had acquired a special meaning in the field of products liability. While the Legislature knocked out the requirement of privity in product liability cases, horizontally and vertically, in my opinion, I do not think it changed the nature of the action for breach of warranty from ex contractu to ex delicto. In arriving at this belief, I recognize that there are decisions which hold that in products liability cases, regardless of the form of the action, that the tort aspects of warranty call for the application of a tort rather than a contract rule in allowing recovery for wrongful death. But many cases have held to the contrary, on the ground that the gist of warranty has become contract, and it is not included within the wrongful death statutes. W. Prosser, Law of Torts 635, § 95 (4th ed. 1971). See also, Annotation: Action ex contractu for damages caused by death, 86 A.L.R.2d 316, 317 (1962), where it is stated:
I believe Alabama has consistently recognized an action for breach of warranty to be contractual in nature. Consequently, I cannot interpret Section 2-318 of the Commercial Code to state that the breach of an express or implied warranty is an action ex delicto and therefore a "wrongful act" under Alabama's Wrongful Death Statute.
This court has held that the breach of a contract is not a wrongful or negligent act *442 under our Wrongful Death Statute. Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1928). See also Knight v. Collins, 327 F. Supp. 97 (N.D.Ala.1971); cf. Latimer v. Sears Roebuck and Co., 285 F.2d 152 (5th Cir. 1960). Contra, Chrobak v. Textron, Inc., Civil No. 1012-S (M.D.Ala., filed Sept. 2, 1969) (unpublished ruling) (Interpreting Tit. 7A, § 2-318).
As I understand the position taken by the dissenters, they feel that Alabama has, by the passage of the Uniform Commercial Code, with amendments, established a "public duty," the breach of which is a "wrongful act" under our Wrongful Death Act. I can agree basically with the position taken by the dissenters in this respect, but I must point out that the plaintiff below did not allege this "public duty." Plaintiff did not allege its breach by the defendants. On the contrary, the plaintiff alleged that the defendants "warranted expressly or by implication that said automobile was fit for normal and ordinary use and operation as intended and was of merchantable quality" and "that as a proximate result and consequence of said breach of warranty by the defendants, as aforesaid, plaintiff's intestate suffered such severe injuries that she died ..." I believe that most lawyers and judges would classify this pleading as an ex contractu action. I do.
Had the plaintiff alleged a cause of action under the tort doctrine of strict liability as spelled out in the Restatement (Second) of Torts, § 402A (1965), I believe the giving of the affirmative charge would have been improper. § 402A of the Restatement (Second) of Torts provides:
In other words, I believe that this Court, in view of the policy expressed in the Uniform Commercial Code to protect users and consumers and persons affected by products, and in view of the recent trends in the development of the law in product liability cases, would adopt the doctrine of strict liability set out in the Restatement. I believe that this Court might hold that those protected against harm included not only users or consumers but any person who may be affected by the goods and who is personally injured. The justification for allowing such an ex delicto action for strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it. Properly presented, I believe this Court might approve the strict liability doctrine. But the warranty count here under consideration makes no attempt to claim under the theory of strict liability.
I believe that the comment in the Restatement (Second) of Torts on § 402A, above quoted, sustains my view that the rule of strict liability which I suggest should be available in personal injury actions, whether the injury is fatal or nonfatal. But I also believe that such actions are not governed by the provisions of the Uniform Sales Act, or those of the Uniform *443 Commercial Code, as to warranties. Comment "m" states, in part:
Consequently, under present law, I think a party to suffers a non-fatal injury has two routes he could take. He can allege that there was an express or implied warranty, that it was breached and as a proximate result of the breach he suffered damages. In such cases, the Uniform Commercial Code does not require him to show privity. I personally think that in non-fatal injury cases, he could sue under the theory of strict liability which I have herein set forth. In death cases, I think an action for breach of warranty would be inappropriate for the reasons I have set forth, that is, because this Court and a majority of other courts have so held such remedy is inappropriate. In death cases, the appropriate remedy might be a suit under the so-called manufacturer's liability doctrine or under the doctrine of strict liability set forth in the Restatement (Second) of Torts.
The plaintiff below had a negligence count against both defendants which went to the jury. The plaintiff presented much evidence that the defendants manufactured, sold, or serviced a product which was not reasonably safe and that plaintiff's intestate was killed as a proximate result of the defective product, but the jury returned a verdict in favor of the defendant on this negligence count. Plaintiff assumed the higher burden of proving that "his intestate suffered said injuries and died as aforesaid as a proximate consequence of the combined negligence of said defendants *444 in that the said defendant, General Motors Corporation, a corporation, negligently designed, engineered, manufactured, assembled or sold said automobile for use as a transportation vehicle in a dangerous condition... and the defendant, McDaniel Motor Company, a partnership, negligently sold and serviced said defective automobile and its components ..." As is stated in Comment "a" under Restatement (Second) of Torts, § 402A:
Having selected the theories upon which he would proceed to fasten liability on the defendants, we cannot pass on what might have been. As to the warranty count, I think he selected an inappropriate remedy. As to his negligence count, on which the jury found against him, I think he selected the alternative which required more proof than had he elected to proceed under the theory of strict liability, but that was a pleading choice.
Since the majority does not discuss in detail some of the points I have discussed, I took the liberty to express gratuitously my personal views on this matter of first impression in this special concurring opinion. My views are my own and should not be taken to express the thinking of either the majority or minority of this Court.
JONES, Justice (dissenting).
I respectfully dissent.
In ruling, as a matter of law, that the warranty count was legally insufficient, the trial court stated, "Punitive damages are not allowed for breach of contract". Two concepts are inherent in this ruling: First, the legal nature and judicial purpose of "punitive" damagesthe exclusive measure of damages in actions brought under the Alabama Wrongful Death Statute[1]; and secondly, the legal nature and character of an action for breach of implied warranty in Alabama. Before summarizing the respective contentions of the parties, I will first briefly review the history of the cause of action for wrongful death, and then I will analyze the present status of the nature of an action for breach of implied warranty.
The legal conclusion that an individual action for personal injuries abated with the death of an individual is based on the ancient maxim: Action personalis moritur cum personaa personal action dies with the person. Although the judicial etiology of this principle is questionable,[2] it ultimately became ingrained in the fabric of the common law. Lord Ellenborough, in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (K.B., 1808), laid down the rule that there was no cause of action for wrongful death. Virtually every legal scholar who has considered the rule has criticized it ("whose forte was never common sense", says Dean Prosser).[3]
Despite its manifest harshness, however, this was the status of the law when Alabama became a state in 1819 and by its Constitution adopted the common law of *445 England.[4] Historians have credited the industrial revolution, its impact in augmenting the mobility of society and the concomitant increase in fatal accidents, with the intensification of the public's rejection of this execrable rule: Death did not create liability; rather death extinguished liability. The conscience of society was ultimately satisfied in England in 1846 by the passage of Lord Campbell's Act. All fifty American states presently have wrongful death statutes. While most of these statutes are modeled after Lord Campbell's act, which raises a new cause of action for the benefit of certain designated beneficiariesmeasuring damages by a broadened concept of pecuniary loss to the family survivors, a minority of the states have death acts in the nature of survival statutesmeasuring recovery by the loss to decedent's estate; and two states, Alabama and Massachusetts, have statutes which, by judicial interpretation, are penal in nature measuring damages in accordance with the degree of defendant's culpability. That the Alabama Wrongful Death Statute created a new cause of action that was unknown to the common law has ofttimes been observed by this Court. Parker v. Fies & Sons, 243 Ala. 348, 10 So. 2d 13 (1942) ; Breed v. Atlanta, B. & C. R. Co., 241 Ala. 640, 4 So. 2d 315 (1941); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911). Thus, it can be seen that its manifest purpose was to afford redress in cases where no redress obtained at the common law and thereby to ameliorate the harsh rule that denied recovery if the injured party died, while permitting damages if the person lived.
It is only against the background of this historical perspective that the true nature of such punitive damages, as are permitted in death cases in Alabama, can be understood.
I now turn my attention to an analysis of the present nature of an action for breach of implied warranty. The trial court construed Count Two-C as an ex contractu action sounding purely in contract. It is essential to note that in Count Two-C the plaintiff did not attempt to characterize the nature of his action as either contractual or tortious; he merely plead a "breach of implied warranty". The contractual characterization is, as we have taken pains to observe, the trial court's legal conclusion.
Purely from a historical standpoint, it is generally agreed that the action of breach of warranty was originally tortious in nature, having its origin in misrepresentation or deceit.
Over the years, because of its close association with the law of sales, the action for breach of warranty gradually acquired a contractual flavor. It was this association that compelled this Court long ago to hold:
*446 More recently it was noted in the case of Harnischfeger Corp. v. Harris, 280 Ala. 93, 190 So. 2d 286 (1966):
The Legislature has since spoken and by the express language of the Code of Alabama, Title 7A, § 2-318, a seller's warranty is specifically made applicable to any "natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty". I must parenthetically note that it is perfectly clear, both from the language of our Homicide Act and from our cases, that an action for wrongful death is the legal equivalent to an action for injury to the person:
The effect of § 2-318 is to affirmatively extend the ambit of privity so as to embrace all natural persons who might reasonably be expected to use, consume, or be affected by the product.[6]
The Alabama version of the Uniform Commercial Code was in effect at all pertinent times referred to in the plaintiff's complaint and governs the relationship that existed between the plaintiff and the defendants insofar as Count Two-C is concerned. We must, therefore, look to this act to determine the present status and legal personality of an action for breach of implied warranty. That is to say, the requirement of privity having been legislatively resolved, the question as recast now becomes: Is the legal nature of an action for breach of implied warranty under the Alabama "non-uniform" Commercial Code such a "wrongful act or omission" as will sustain a claim under the Alabama Wrongful Death Statute?
It is in this posture and against this historical context that the appellant urges three theories for the proposition that this Court should allow recovery in a claim for wrongful death based on an action for breach of implied warranty.
Theory No. One: The common law rule of Baker v. Bolton, supra, prohibiting recovery for wrongful death applied only to actions ex delicto and did not extend to contract actions. Lord Campbell's Act and its American progenynecessarily spoke only to this deficiency. Therefore, since causes of action in contract have never been declared extinguished by death *447 (and, consequently, not under the Baker v. Bolton influence), the present action is cognizable at the common law, separate and apart from the purview of the Alabama Wrongful Death Statute.[7] The premise upon which this theory is based is that, should this Court construe the nature of an action for breach of implied warranty as being "purely contractual", it should nevertheless be maintainable under common law principles.
Theory No. Two: A historical analysis of the action for breach of warranty indicates that its origin is in misrepresentation or deceit; and, consequently, such actions are not purely contractual and, therefore, are maintainable under our Wrongful Death Statute.
Theory No. Three: The Alabama Legislature, by its enactment of a "non-uniform" version of the Uniform Commercial Code, has so infused tortious characteristics into the nature of the implied warranty that the breach of such warranties is a "wrongful act" as contemplated by the Alabama Wrongful Death Statute.
As to these contentions, the defendants reply that the present action is governed by the Alabama Wrongful Death Statute, which permits only the recovery of punitive damages, and further that punitive damages are not recoverable in actions ex contractu. The defendants each rely principally on Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24 (1961) in support of their position on this issue.
It is not necessary for this Court to consider, nor do the pleadings properly present, the first of the plaintiff's theories. The trial court's ruling was made on the assumption that the provisions of Title 7, § 123, governed. The failure of the record to reflect that this theory was specifically called to the trial court's attention compels me to pretermit any consideration of this theory and I agree that this case is controlled by our Wrongful Death Statute. The trial court should not be reviewed or reversed on a question of law not clearly presented in the proceedings below. Head v. Triangle Const. Co., 274 Ala. 519, 157 So. 2d 389 (1963).
Likewise, plaintiff's "Theory No. Two" is without merit. Although an academic reconsideration of the historical origin of an action for breach of warranty might have predicted a different result, the Alabama Supreme Court, prior to the enactment of Title 7A, did hold that an action for breach of implied warranty was essentially contractual. Birmingham Chero-Cola Bottling Co., v. Clark, supra.
Plaintiff's "Theory No. Three" only is deemed applicable, and to this contention the defendants' reply must be considered for it correctly expresses the basis of the lower court's ruling. In referring to Title 7A, I have described it as a "non-uniform" version of the Uniform Commercial Code. This description is as significant as it is appropriate. Specifically, with reference to "injuries to the person in the case of consumer goods", the Alabama legislature incorporated five separate amendments to the Uniform Commercial Code which must be considered in determining the legal nature of warranties implied by operation of the provisions of Title 7A:
(A). Subsection (5) was added to Section 2-316 for the purpose of prohibiting the seller from excluding or modifying his liability for damages for injuries to the person in the case of consumer goods.
(B). Section 2-318 of the UCC was amended so as to exclude the phrase "who is in the family or household of his buyer or who is a guest in his home", which phrase appeared in the Uniform Commercial Code as the limiting description of the term "natural person".
(C). Section 2-714 was amended so as to add the following quoted language at
*448 the end of Subsection (2) of the uniform version:
(D). Section 2-719 dealing with the seller's privilege to contractually modify or limit the buyer's remedy was amended so as to add Subsection (4) which provides:
(E). Section 2-725 relating to the statute of limitations was amended so as to add the quoted phrase at the conclusion of Subsection (2):
The obvious import of each of these amendments is to amplify the legal rights of the buyer in the posture of a products liability case beyond the scope of the Uniform Commercial Code; and to this extent they reflect a legislative intent that is harmonious with the judicial trend expressed in a growing majority of cases over the country. See Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791 (1966). The amendments, in their composite effect, make it clear that the intention of the Alabama Legislature in adopting a modified version of the Commercial Code was to provide the consumer, at least in cases involving "injury to the person", with a right of action for breach of warranty the nature of which is as much, if not more, tortious as it is contractual. See Springfield v. Williams Plumbing Supply Co., 249 S.C. 130, 153 S.E.2d 184 (1967); Chairaluce v. Stanley Warner Management Corp., 236 F. Supp. 385 (D. C., Conn., 1964). Additionally, §§ 1-102 and 1-106 mandate a liberal construction with respect to such remedies.[8]
The purpose of tort law, at least since the beginning of the 20th Century, has been to provide a civil remedy in situations where the plaintiff's legally protected interests have been injured by the defendant's violation of publicly imposed duties.[9] The legal personality of warranties, which arise in connection with transactions governed by the Alabama Commercial Code, is compatible with traditional tort concepts in that a breach of warranty thereunder is a violation of a publicly imposed duty. The character of the event necessary to invoke the right and remedy created by the Alabama Wrongful Death Statute is defined by the Statute as any "wrongful act, omission or negligence". In King v. Henkie, 80 Ala. 505, 60 Am.Rep. 119 (1876), this Court held:
This Court in Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1927), noted by way of dicta that a "mere breach of contract" is not a wrongful or negligent act, within the meaning of the statute, given a right of action for wrongful death. The plaintiff *449 in Thaggard expressly laid his complaint in negligence and for this reason the language quoted above was not necessary to the Court's opinion which in fact, held that the complaint properly averred a negligent breach of the defendant's duty. Thaggard was a malpractice suit in which the administratrix of the plaintiff's estate alleged in substance that the defendant, a practicing physician, undertook for reward to treat the plaintiff's intestate, and that he "so negligently conducted himself in that regard that plaintiff's intestate died as a proximate consequence of defendant's negligence". The reasoning in support of the actual holding in Thaggard is in harmony with our opinion here. The Court in Thaggard recognized that, in the absence of pleading affirmatively averring a breach of contract, the underlying relationship between a physician and his patient is not "necessarily contractual" and is not, therefore, a "mere breach of contract".
Similarly, I would hold that the warranties that arise by operation of the Alabama Commercial Code, out of the relationship between the "seller" of a product and "any natural person who might reasonably be expected to use, consume or be affected by" the product, are in the nature of a public duty imposed by law and are not "necessarily contractural" or a "mere contract"; the breach of such warranties are, therefore, maintainable in an action brought under the Alabama Wrongful Death Statute.[10]
The contention most stringently urged by the defendants, and the one expressed by the trial judge in granting the affirmative charge, is the proposition that punitive damages will not lie for a breach of contract. Treadwell Ford, Inc. v. Leek, supra, cited by the defendants, although so holding, was not a wrongful death case. It is true that punitive damages are not ordinarily recoverable in actions for breach of contract. 22 Am.Jur.2d, Damages, § 245. It is also true that damages under the Alabama Wrongful Death Statute are punitive. Airheart v. Green, 267 Ala. 689, 104 So. 2d 687 (1957).
Judicial juxtaposition of these two rules, however, does not compel the conclusion that an action for breach of implied warranty under the Alabama Wrongful Death Statute would not permit a recovery for punitive damages. Or, stated another way, it does not necessarily follow that an action for wrongful death may not be maintained based on breach of warranty. Our decisions do not allow recovery of punitive damages in a purely personal injury case for simple negligence but do permit their recovery in an action for wanton misconduct. Following the defendants' reasoning, we would be forced to conclude that a death case based on simple negligence would not lie. The clear wording of our statute, permitting recovery for "[any] wrongful act, omission or negligence", illustrates the fallacy of this reasoning. A contrary rule would have the effect of increasing the degree of culpability contemplated by our statute as the requisite for recovery in wrongful death actions.
The punitive aspect of the damages permitted in actions brought under the Alabama Homicide Statute relates to the nature and amount of the recovery rather than the underlying right or recovery; it is not the nature of the recoverable damages that permits the maintenance of a "wrongful death action" but the circumstances attending to injury, and the nature of the wrongful act or omission which is make the basis of the action. Breed v. Atlanta, *450 B. & C.R. Co., supra; King v. Henkie, supra. The sense in which damages recoverable under the Alabama Homicide Act are deemed punitive is sui generis and the term is not used in the identical sense when applied to actions involving wanton misconduct or intentional injury. For example:
(1) A wrongful death action does not abate by the death of the defendant although he can no longer be punished. Bagley v. Grime, 283 Ala. 688, 220 So. 2d 876 (1969); Campbell v. Davis, 274 Ala. 555, 150 So. 2d 187 (1962).
(2) Punitive damages may be awarded for simple negligence where the injury results in death. Southern Ry. Co. v. Sherrill, 232 Ala. 184, 167 So. 731 (1936); see also Drummond v. Drummond, 212 Ala. 242, 102 So. 112 (1924).
(3) In wrongful death actions against joint defendants the damages are not divided according to the relative culpability of each defendant. Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612 (1952).
(4) If by the same wrongful act the defendant causes the death of two people, he cannot in the second case mitigate his responsibility by showing that he has already been sufficiently punished by a verdict in the first case. Kansas City M. & B. R. R. Co. v. Sanders, 98 Ala. 293, 13 So. 57 (1893).
The wording of our wrongful death statute does not characterize the recovery but simply permits "such damages as the jury may assess". Our earliest cases correctly, I think, discerned a legislative intent to equate the value of all human life and established a rule of recovery which reflects that the cardinal factor of culpability is the taking of a human life, regardless of the financial status of the victim, with the amount of recovery keyed to the degree of culpability. Daniel Construction Co. v. Pierce, 270 Ala. 522, 120 So. 2d 381 (1959); Richmond & Danville Railroad Co. v. Freeman, 97 Ala. 289, 11 So. 800 (1892); L. & N. R. R. Co. v. Perkins, 1 Ala.App. 376, 56 So. 105 (1911).
I conclude, therefore, that the previous state of actions arising from breach of warranty has been fundamentally changed by the legislative enactment of the U.C.C. The U.C.C. clearly imposes a public duty with respect to an implied warranty of fitness of consumer goods, and the breach of that duty resulting in personal injury may be redressed by recovery of "those damages ordinarily allowable in such actions at law". Further, when such personal injury results in death, the Alabama Wrongful Death Statute governs that remedy and "those damages ordinarily allowable".
One basic theme runs throughout the majority opinionthat the purpose of the legislature in passing the Alabama version of the U.C.C. was to regulate commercial transactions and that an action for wrongful death is not a commercial transaction. I would merely point out that no cause of action, be it for wrongful death, breach of contract, or negligence, is a commercial transaction.
It is unfortunate, it seems to me, that the majority opinion looks to the ultimate cause of action, rather than to the underlying transaction, to determine a party's right to relief for personal injuryfatal or nonfatalresulting from a breach of warranty and the public duty imposed by the Code arising therefrom. The underlying transaction giving rise to a cause of action, which should be looked to in determining that the party's right to relief is, in this case, the sale of a defective car. This is the commercial transaction which forms the basis of the instant suit, and which ties the case into the U.C.C. The underlying transactionthe sale of the car rather than the resulting injury or damage sustained should be the determinative factor.
A literal application of the rationale of the majority opinion would exclude recovery for personal injurynonfatal as well as fatal. It is my view that such an interpretation *451 ignores the liberal remedies afforded by the Code to the consumer public in products liability cases. Likewise, I am puzzled by the failure of the majority opinion to affirm, overrule, or even mention the long-established rule of Ambrose, supra, reaffirmed by Harris, supra, to the effect that the statutory use of the words "personal injury" includes the ultimate injurydeath. Did our legislature in its passage of the U.C.C. not have the right to assume that this Court would follow its own established precedents in giving effect to the remedies provisions of the Code?
I would, therefore, reverse and remand.
HEFLIN, C. J., concurs.
FAULKNER, Justice (dissenting).
I respectfully dissent. It appears to me that the legislature has provided us with a good map and compass, which the majority has read to mean one thing, and I, in the minority, interpret to mean another. I know of no words in the English language any plainer than those used in the Uniform Commercial Code. Section 2-318 of the U.C.C. provides that an action may be brought by any natural person for personal injury resulting from the breach of a warranty. The majority holds that a wrongful death action is not an action for personal injury. I know of but two ways for a person to die. One is by natural causes. The other is by internal or external injury to the body sufficient to produce death.
County One-D in this case alleges injuries which resulted in death.
This Court has held in Ambrose, supra, that a wrongful death action is an action for personal injury.
Would this Court, by the use of a time machine, digress to the period before Lord Campbell's Act, and hold that there is no cause of action for wrongful death? Apparently so, because they have certainly reached a medieval result here. I cannot distinguish death resulting from a breach of warranty and death resulting from a tort. In both instances, the person is very dead. I suppose, in view of the majority opinion, that if the dead man had a choice, he had rather go by tort than by breach of warranty. In such instance he may go to his happy hunting ground knowing that the wrongdoer would have to make an accounting for his tortious act, whereas if injury resulted from breach of warranty, the wrongdoer would pray for his death.
The majority go further and hold that punitive damages will not lie for breach of a contract. Simplistically, the majority call contract exactly the same thing as warranty, whereas the best authorities hold that warranty is a hybrid form of action resting somewhere between tort and contract. Justice Jones correctly states that damages for death resulting from breach of warranty awarded under the Homicide Statute are punitive in nature and cannot precisely be equated with punitive damages in an ordinary tort action.
In view of the majority opinion, I believe this question should be taken up by the legislature for clarification of this very important point of law.
[1] McDonnell, The New Privity Puzzle: Products Liability Under Alabama's Uniform Commercial Code, 22 Ala.L.Rev. 455, 484 (1970).
[1] The rule is the same whether the action is governed by §§ 119 or 123, Title 7. Code of Alabama 1940, as amended. Louisville & Nashville R. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392 (1912).
[2] Smedley, Wrongful DeathBasis of Common Law Rules, 13 Vanderbilt L. Rev. 605 (1960).
[3] See, e. g., Winfield, Death as Affecting Liability in Tort, 29 Columbia L.Rev. 239 (1929); Malone, The Genesis of Wrongful Death, 17 Stanford L.Rev. 1043 (1965).
[4] Smith v. United Construction Workers, 271 Ala. 42, 122 So. 2d 153 (1960); Title 1, § 3, Code of Alabama 1940.
[5] While this case was overruled as to its holding on the venue question, the language quoted above has been reaffirmed by this Court in Harris v. Elliott, 277 Ala. 421, 171 So. 2d 237 (1965).
[6] The Official Comments numbered 2 and 3 following § 2-318 in the 1966 Recompilation of Title 7A are not appropriate and do not apply to the language of § 2-318 as actually enacted by the Alabama Legislature. Comments 2 and 3 were obviously drafted by the editors of the Commercial Code as being applicable to the official "Uniform" version of § 2-318. The actual wording of § 2-318 incorporated in the Alabama Act is similar to the language originally employed by the drafters of the UCC. Permanent Editorial Board for the Uniform Commercial Code, Report No. 3, p. 13 (1967). See Freedman, Products Liability Under the Uniform Commercial Code, The Practical Lawyer (April, 1964) ; Bailey, Sales Warranties, Products Liability and the UCC, 4 Williamette L.J. 291; see also McDonnell, The New Privity Puzzle, 22 Ala.L.Rev. 455.
[7] See Gaudette v. Webb, 284 N.E.2d 222 (Mass., 1972) ; Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970).
[8] See also Tiger Motor Co. v. McMurty. 284 Ala. 283, 224 So. 2d 638 (1969).
[9] Winfield, The Foundation of Liability in Tort, 27 Columbia L.Rev., p. 1 (1927) ; Ashby v. White, 92 Eng.Rep. 120 (1703) ; Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759 (1927).
[10] For cases from other jurisdictions in accord with the present holding, see Kelley v. Volkswagerwerk, 110 N.H. 369, 268 A.2d 837 (1970) ; Dagley v. The Armstrong Rubber Co., 344 F.2d 245 (7th Cir., Ind., 1965) ; Schuler v. Union News Co., 295 Mass. 350, 4 N.E.2d 465 (1936) ; Zostautas v. St. Anthony De Padua Hospital, 23 Ill. 2d 326, 178 N.E.2d 303 (1961) ; Breach of Warranty as a Basis for a Wrongful Death Action, 51 Iowa L.Rev. 1010 (1966) ; Annot. 86 A.L.R.2d 316. | May 24, 1973 |
e7bfbef7-55ba-4ee1-8859-e942e90aad8f | Wood v. Casualty Reciprocal Exchange | 279 So. 2d 506 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 506 (1973)
Charles WOOD, as Father of Alice Jean Wood, a Deceased minor and Alfred Dallas, Jr.
v.
CASUALTY RECIPROCAL EXCHANGE, a Reciprocal Organized Under the Laws of Missouri.
SC 142.
Supreme Court of Alabama.
May 31, 1973.
Rehearing Denied July 5, 1973.
*507 Knox M. McMillan, Auburn, for appellant Charles Wood.
Walker, Hill, Gullage & Adams, Opelika, for appellant Alfred Dallas, Jr.
Miller & Hoffmann, Montgomery, Samford, Torbert, Denson & Horsley, Opelika, for appellee.
McCALL, Justice.
The appellee urges that this appeal be dismissed because of the failure of the record to disclose service of citation, notifying the appellee of the appeal. Pursuant to a writ of certiorari, issued out of this court, the register in chancery of the Circuit Court of Lee County, Alabama, in which this cause originated has certified to this court citation on appeal in due form directed to one of the attorneys of record for the appellee Casualty Reciprocal Exchange with the sheriff's return endorsed thereon, showing the execution of service on the appellee. This evidences sufficient compliance with the requirements of Tit. 7, § 801, Code of Alabama, 1940. The motion to dismiss is denied.
The appellee, Casualty Reciprocal Exchange, a reciprocal organized under the laws of Missouri, filed its bill of complaint on the equity side of the circuit court against Charles Wood, as father of Alice Jean Wood, a deceased minor, and Alfred Dallas, Jr. The trial of the issues of fact was had before a jury.
The appellant Wood, together with Dallas, who joins in the appeal are aggrieved *508 over the adverse order or decree of the trial court which granted a motion of the appellee insurance company to set aside the verdict of the jury returned in their favor as to ownership of an automobile and insurance coverage, thereon. The order set aside the judgment award, and the decree of the court entered thereon, and, also restored the case to the active trial docket of the equity court for a retrial, unless an appeal should follow the said order and judgment. The basis for this order was the court's opinion that the jury's verdict was against the great weight and preponderance of the evidence. It is the foregoing order or decree that Wood and Dallas seek to have reviewed on appeal, or, in the alternative, by mandamus, should they have mistakenly considered an appeal to be appropriate. Hereafter, these respondents in the court below will be referred to as appellants.
We think that the order here appealed from is not such as will support an appeal. In Wood v. Finney, 207 Ala. 160, 92, So. 264, we held that an order granting a motion to vacate and set aside a final decree and reinstating the cause on the docket was not a final decree nor an interlocutory order of such character as to authorize an appeal. However, mandamus may lie as the appropriate remedy, if the order shows on its face that it is void. The order here under attack shows on its face that the jury found the issues of fact presented to it in favor of the appellants. The order further shows that the appellants were granted relief under their cross-bills in the equity court's final decree of May 9, 1972, pursuant to the jury's verdict; that the appellee's application for rehearing or motion to vacate and set aside that verdict and the final decree entered thereon was not filed until May 30, 1972; and that the issues of fact presented were "issues out of chancery," affording the appellants a jury trial as a matter of right. As we will undertake to demonstrate at a later point in this opinion, we think this order of the trial court, vacating and setting aside its final decree in this cause, is erroneous on its face. Therefore mandamus is the proper procedure to have it vacated. Capps v. Norden, 261 Ala. 676, 75 So. 2d 915.
The bill in equity, which the appellee insurance company filed against its named insured Dallas and his judgment creditor, Wood, seeks a declaration of rights, status, or other legal relations under its automobile liability policy of insurance, (1) as to whether or not Dallas, the named insured in the policy, was entitled to its protection and coverage against liability arising out of an accident which resulted in the death of Wood's minor daughter, Alice Jean Wood, and, (2) as to whether or not the appellee insurance company is legally obligated under the policy to pay the monied judgment that the court of law rendered against Dallas for the resulting death of Wood's daughter.
The principal issues between the parties, made by their pleadings and the evidence in this case were: (1) Did the insured Dallas give the insurer timely and sufficient notice of the accident as required by the policy and the applicable law, and (2) was the automobile, involved in the one car accident, covered by the policy of insurance.
The evidence as to the giving of proper and timely notice was in conflict, but resolved ultimately by the court in favor of Dallas and Wood, and is not here raised by cross-assignment.
It was undisputed that the automobile involved in the fatal accident was not specifically described as an insured vehicle in the policy of insurance, but its ownership was disputed. Dallas and Wood offered evidence to prove that the accident automobile was a substitute vehicle within the provisions of the insurance policy, a covered automobile being then under repair, and, that by reason of this, the automobile involved, which he contended was not owned by him, but by his daughter, was in fact an insured vehicle under the policy.
*509 The policy of insurance in question contained the following pertinent definition of the word "automobile":
On the issues of fact the appellants, Dallas and Wood, who filed separate cross-bills, demanded a trial by jury. This was granted as a matter of right. State Farm Mutual Automobile Ins. Co. v. Bodiford, 281 Ala. 510, 205 So. 2d 589, Major v. Standard Accident Ins. Co., 272 Ala. 22, 128 So. 2d 105. Tit. 7, § 164, Code of Alabama, 1940, as amended. The Declaratory Judgment Act, Tit. 7, § 164, supra, provides:
In Alabama Electric Cooperative, Inc. v. City of Luverne, 282 Ala. 616, 618, 213 So. 2d 676, 677, we said:
The case of Bodiford, supra, was one in which the insurance company petitioned in equity, for declaratory relief to determine if it was obligated to defendant Bodiford, under a liability insurance policy, issued to Young, the named insured in a wrongful death action by the executor of the deceased Palmer. The parties stipulated and agreed that the only issue was: Was the death of Palmer caused by an intentional act of Bodiford in the use of Young's automobile or was the death caused by an accident as insured against in the policy? A jury trial was demanded and obtained for the trial of the factual issues. The court said:
In a declaratory judgment proceeding in equity, the court in Major v. Standard Accident Ins. Co., 272 Ala. 22, 128 So. 2d 105, held that the determination of the issue of ownership of an automobile was one of fact to be decided by a jury.
In Bodiford, supra, a declaratory judgment case, in equity, the jury returned a verdict in favor of the respondents, Bodiford and the executor. The court said that the decree of the court was responsive to and based on a jury's verdict at law on an "issue out of equity," citing Howard v. Ridgeway, 225 Ala. 106, 142 So. 403(1), wherein the court, in defining what is meant by "an issue out of chancery" said it was those equitable cases "wherein the parties are entitled, as matter of right, to a trial of the issues by jury, as contradistinguished from cases wherein the trial by jury and the verdict are merely advisory. Lewis v. Martin, 210 Ala. 401, 98 So. 635." See also Owens v. Washington, 260 Ala. 198, 69 So. 694. In such cases the trial of the issues by jury partake of the essence of a trial at law. A motion to set aside the verdict and award a trial de novo is essential to a review by the chancellor of the rulings on the trial of the issues before the jury. Howard v. Ridgeway, supra; Karter *510 v. East, 220 Ala. 511, 125 So. 655; Hale v. Cox, 222 Ala. 136, 131 So. 233. As to the point in time of procedure when the motion to set aside the verdict of the jury and grant a new trial must be made, the court in Owens v. Washington, 260 Ala. 198, 201, 69 So. 2d 694, said that after the jury has returned its verdict, the aggrieved party must file such motion before the equity court has entered its final decree thereon, and following the principle referred to in Jester v. Jester, 225 Ala. 138, 142 So. 523, and Ex parte Curry, 248 Ala. 384, 27 So. 2d 630, that unless the verdict is vacated, the verdict, responding to the issues submitted, is binding on the equity court, and the equity court must follow the verdict in rendering the decree.
The court also said this in Owens v. Washington, supra, 260 Ala. at page 202, 69 So. 2d 694, 697, which is quoted in Wood v. Miller, 263 Ala. 499, 83 So.2d 206:
The case of Woods v. Allison Lumber Co., 261 Ala. 286, 287, 74 So. 2d 486, was one to quiet title. A jury trial was granted as a matter of right. As to the point here in issue, the Supreme Court said:
Again, in State Farm Mutual Automobile Insurance Co. v. Bodiford, supra, 281 Ala. at page 512, 205 So.2d at page 591 the court said:
No such motion to set aside the verdict of the jury and grant the appellee insurance company a new trial was seasonably filed in this case. It was belatedly filed after the equity court entered a final decree responsive to the jury's verdict. Our cases hold that such a motion comes too late, Farmers and Merchants Bank of Ashville v. Jones, 238 Ala. 463, 191 So. 617: Tilley's Ala. Equity, § 179, p. 194, and it should not be considered by the equity court after the court has entered up a final decree responsive to the verdict which was returned pursuant to the "issues out of equity" submitted to it. Such verdict is binding on the equity court unless timely challenged by a motion to set it aside. Owens v. Washington, 260 Ala. 198, 69 So. 2d 694; State Farm Mutual Automobile Ins. Co. v. Bodiford, 281 Ala. 510, 205 So. 2d 589. To sum up what we have said: The trial of the issues of fact in such cases by a jury partake of the essence of a trial at law, and a motion to set aside the verdict and award a trial de novo is essential to a review by the chancellor of the rulings on the trial of the issues before the jury. Howard v. Ridgeway, supra; Owens *511 v. Washington, supra. In the absence of such a motion, seasonably filed, to grant a new trial, a final decree based on the jury's verdict must be entered. State Farm Automobile Ins. Co. v. Bodiford, 281 Ala. 510, 205 So. 2d 589. The following pronouncement of the court in Whiddon v. White, 285 Ala. 109, 229 So. 2d 498 was not necessary to a decision in that case, but the statement has particular significance in the present case:
There being no timely motion attacking the verdict of the jury, the equity court should therefore have denied the appellee's motion to set aside the verdict and the final decree entered thereon. The ruling of the trial court, in granting the appellee's motion was invalid and cannot now be permitted to stand.
The appellee contends that this case should be considered, in the light of the Declaratory Judgment Act concerning jury trials, separate and apart from the provisions for jury trials in pure equitable suits, and, since the case involves a legal judgment, the appellee had thirty days from the entry of the judgment within which to file a motion for a new trial as provided by Tit. 7, § 276, Code of Alabama, 1940, as amended.
The appellee filed this suit on the equity side of the court which he had a right to do. There it remained pending. It is not before us to decide whether or not the appellee might have filed the case as an action at law under the Declaratory Judgment Act, Tit. 7, § 156 et seq., Code of Alabama, 1940, as amended. The fact remains that the case continued in equity and a final decree was entered by the chancellor in equity. It follows that equity procedures apply.
The final decree being in equity, § 276 of Tit. 7, Code of 1940, as amended, can have no application. In Owens v. Washington, supra, we made this observation as to its applicability:
The appellee cites Major v. Standard Accident Ins. Co., 272 Ala. 22, 24, 128 So. 2d 105, 107. In that case the court decided that the respondents were entitled to a trial by jury of the "issues out of chancery" as a matter of right. The court was speaking to that aspect of the case when it said:
The court did not hold in the Major case, supra, that the declaratory judgment cause, though filed in equity, was to be proceeded in as at law because the trial of the issues by jury partook of the essence of a trial at law.
*512 Title 7, § 276, Code of 1940, has no applicability here so as to allow thirty days beyond the date of the final decree in equity to file a motion for a new trial.
In conclusion, the result is that the appeal should be dismissed. The application for mandamus is awarded to vacate and set aside the invalid order and judgment granting appellee's application for rehearing which is dated July 14, 1972, and to reinstate the final decree of the circuit court, in equity, entered on May 9, 1972, as thereupon entered.
Original appeal dismissed. Mandamus awarded to vacate and set aside order and judgment granting appellee a rehearing. Final decree reinstated.
HEFLIN, C. J., and COLEMAN, BLOODWORTH, and JONES, JJ., concur. | May 31, 1973 |
7744d541-ff03-4c42-9c0a-ea10978e8872 | Allred v. State | 277 So. 2d 339 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 339 (1973)
Barbara Ann ALLRED
v.
STATE of Alabama.
SC 304.
Supreme Court of Alabama.
May 3, 1973.
*340 Smith & Smith, Dothan, for appellant.
William J. Baxley, Atty. Gen., Robert S. Lamar, Jr., Sp. Asst. Atty. Gen., Montgomery, for the State.
JONES, Justice.
This case was transferred to the Supreme Court from the Court of Criminal Appeals on March 26, 1973. Appellant was convicted of the murder of her husband. She plead not guilty by reason of insanity. Our search of the record discloses that the sole question presented is whether the remarks of the prosecuting attorney in closing argument, in their cumulative effect, were of such a prejudicial nature so as not to be capable of being eradicated by the rulings and instructions of the trial court.
The pertinent portion of the argument and the entire colloquy here involved are set out as follows:
The State contends that not only was the district attorney's Statement No. 1 not prejudicial, but that it was proper argument under the circumstances. In its brief the State says:
The factual setting for the State's contention upholding the propriety of Statement No. 1 is as follows: Defendant was admitted to the Bryce Hospital on December 8, 1970, for mental observation and report (§ 425, Title 15, Code of Alabama 1940, Recompiled 1958). The Superintendent of the Bryce Hospital filed his report with the Circuit Court of Houston County, Alabama, on the 5th day of February, 1971, certifying that Barbara Ann Allred was insane and incompetent at the time of her admission to Bryce Hospital and that she was insane and incompetent at the time of the report of the authorities to the Court on said date. At an inquisition held on the 23rd day of February, 1971, the defendant was found to be insane by the jury duly impaneled and was so adjudged by the Court and returned to the Bryce Hospital, where she remained until she was certified as being mentally competent to stand trial. She was released on August 16, 1971, and her case was set for trial on the 29th day of May, 1972.
The difficulty with the State's contention relating to Statement No. 1 lies in the fact that defense counsel's objection specifically pointed out that the language claimed as improper was "... put her back down here on us". This goes beyond impeachment of the expert witnesses and falls squarely within that line of cases wherein this Court has repeatedly held that such argument is improper. Ballew v. State, 49 Ala.App. 611, 274 So. 2d 636; Cert. den. 290 Ala. 361, 274 So. 2d 637; Dunn v. State, 277 Ala. 39, 166 So. 2d 878; Wise v. State, 251 Ala. 660, 38 So. 2d 553; Boyle v. State, 229 Ala. 212, 154 So. 575; Anderson v. State, 209 Ala. 36, 95 So. 171. See also 44 A.L.R.2d 973.
The State admits that Statements 2 and 3 are improper but contends that any prejudice resulting therefrom was fully eradicated by the action of the trial court in sustaining defense counsel's objection and *342 by admonishing the jury to disregard such statements. We think it is clear that all three statements were made in the same vein with the same import intended by each. The learned trial judge recognized the impropriety of each statement and correctly ruled on each objection thereto. In accordance with the principles laid down in the above cited cases, he further undertook to avert the prejudicial effect of these statements and unquestionably his actions would have accomplished that result as to any one of such statements standing alone.
In answering the question before us, we cannot analyze each statement separately to see whether, if standing alone, it would create an ineradicable bias or prejudice; but rather they must be considered together to determine whether or not, in their cumulative effect, they created a prejudicial atmosphere incapable of eradicability. Blue v. State, 246 Ala. 73, 19 So. 2d 11; Kabase v. State, 244 Ala. 182, 12 So. 2d 766.
It is a general rule that where prejudicial statements are made in the heat of argument, even though improper, in accommodation of our adversary system, such statements are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both. Dunn v. State, supra. See also Arant v. State, 232 Ala. 275, 167 So. 540. But our cases also recognize that an exception to this rule exists where, irrespective of the best efforts of the trial judge to disabuse the mind of the jury of any prejudicial impression, the conviction obtained is not in an impartial atmosphere. Blue v. State, supra. See also Pointer v. State, 24 Ala.App. 23, 129 So. 787; DuBose v. State, 148 Ala. 560, 42 So. 862.
We now turn to an application of the above stated rule, and its exception, to the instant case. The evidence presented but one issue for determination by the jury: Was the defendant legally insane at the time she killed her husband? Expert testimony was offered in abundance by the defense (4 psychiatrists, medical records of 2 hospitals and 1 general practitioner), all to the effect that defendant was legally insane at the time of the commission of the alleged offense. No expert testimony was offered in rebuttal. This is not to say, of course, that the question of defendant's sanity was not an issue for the jury. Dunn v. State, supra; Wise v. State, 251 Ala. 660, 38 So. 2d 553; Boyle v. State, supra. What we are saying, however, is that the prosecuting attorney was obviously faced with a heavy burden of obtaining a conviction in face of such odds on the defendant's "not guilty by reason of insanity" plea. He simply took a calculated risk and pursued with repetition a prejudicial argument, hoping to obtain a conviction at the hands of the jury and trusting the actions of the trial judge to mandate an affirmance on appellate review.
This is best illustrated by the context in which we find Statement No. 3. Immediately following the action of the trial court in sustaining defense counsel's objection to Statement No. 2, the district attorney, apparently to parry such ruling, continued to address the jury thusly:
"With that"the cumulative prejudicial effect of such argumentthe trial court should have granted the defendant's motion for a mistrial; or, failing that, the trial court should have granted the defendant's motion for a new trial. And with that, we'll close.
Reversed and remanded.
BLOODWORTH, McCALL and FAULKNER, JJ., concur.
COLEMAN, J., concurs specially.
*343 COLEMAN, Justice (concurring specially):
I agree that the cumulative effect of the three remarks in the argument of the district attorney requires reversal and a new trial of appellant. I am not to be understood as concurring in the other statements in the opinion. | May 3, 1973 |
5d1bb102-b061-41cf-a6fe-fdf0412bc2e0 | Carter v. State | 277 So. 2d 896 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 896 (1973)
Lawrence CARTER
v.
The STATE of Alabama.
SC 355.
Supreme Court of Alabama.
May 17, 1973.
*897 Marlin M. Mooneyham, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and George White, Sp. Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Lawrence Ray Carter pled guilty to kidnapping James O. McGhee. The details of the crime do not appear of record. Carter was sentenced to five years in the penitentiary. He appealed to the Alabama Court of Criminal Appeals, and the appeal was thereafter transferred to this Court.
Our inquiry focuses upon whether the appellant's guilty plea was "intelligent and voluntary," as required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Appellant argues that he was not advised on the record what the minimum and maximum punishments for his offense would be.
With relation to the issue of prospective punishment, the record discloses the following dialogue in open court:
Boykin, supra, does not specifically posit revelation of the maximum and minimum punishment as a necessary element of an "intelligent and voluntary" guilty plea. Justice Douglas speaks only of making sure the defendant understands the "consequence" of his plea. 395 U.S. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280. A footnote cites with approval a Pennsylvania state case requiring explanation of the "permissible range of sentences."
Subsequent to Boykin, supra, it has become established that the defendant must be informed of maximum and minimum possible sentences as an absolute constitutional prerequisite to acceptance of a guilty plea. Jones v. State, 48 Ala.App. 32, 261 So. 2d 451 (1972); Spidell v. State, 48 Ala.App. 24, 261 So. 2d 443 (1972); People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550 (1972); People v. Buck, 7 Ill.App.3d *898 758, 288 N.E.2d 548 (1972); United States ex rel. Hill v. United States, 452 F.2d 664 (5th Cir. 1971); Cooper v. State, 47 Ala. App. 178, 252 So. 2d 104 (1971).
In light of this background, the precise issue in this case is whether the defendant's statement that he knew the "penalties involved" is effective when the exact nature of those penalties (2-10 years in the penitentiary) was not stated on the face of the record.
We think appellant's argument is well taken. The "utmost solicitude" required by Boykin, supra, requires a showing not only that the defendant believed he knew the range of punishment, but that his belief was accurate. The better practice is to elicit the maximum and minimum sentences from the defendant himself, so that his knowledge thereof appears on the face of the record. See Jones v. State, supra.
The abuse to which disregard of this rule can lead is well-illustrated in this case. We find the following colloquy relating to the defendant's alleged crime, carrying a 2-10 year sentence:
Defendant, despite his statement, obviously did not know what the possible range of sentence was. Thus we see that the requirements of Boykin, supra, rather than being mere technicalities, are protective of substantial rights.
We hold that a defendant, prior to pleading guilty, must be advised on the record of the maximum and minimum potential punishment for his crime.
Appellee argues that the judgment entry shows that the defendant understood the "range of the sentence." This entry clearly refers to the answer of the defendant that he understood the "penalties involved," discussed supra, and is no evidence of any further explanation of rights in the case.
The judgment of conviction and sentence are reversed.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | May 17, 1973 |
4cdcb0c6-89f8-42a4-bec9-c3e220e7dab3 | Murphree v. Smith | 277 So. 2d 327 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 327 (1973)
H. W. MURPHREE et al.
v.
John A. SMITH and Nina D. Smith et al.
SC 177.
Supreme Court of Alabama.
May 3, 1973.
Dawson, McGinty & Livingston, Scottsboro, for appellants.
Weeks & Weeks, Scottsboro, for appellees.
*328 JONES, Justice.
This is an appeal from a decree rendered in the Circuit Court of Jackson County, in Equity, in favor of the complainants-appellees, John A. Smith and Nina D. Smith, and against the respondents-appellants, Mr. and Mrs. H. W. Murphree and the heirs at law of J. Floyd Davidson, deceased.
In their original bill of complaint the Smiths[1] sought an accounting from the Murphrees under the terms and provisions of two leases made and entered into by the Murphrees and J. Floyd Davidson on October 3, 1962. The bill averred that the property (some 157 acres in Jackson County, Alabama) which is the subject of the above-mentioned leases was conveyed by Davidson to the Smiths on March 24, 1954, by a warranty deed which reserved a life estate in the grantor. It is admitted that the said deed was not recorded until after the death of Davidson in November, 1962. The deed was attached to the bill of complaint as Exhibit "A". The bill further alleged that the Murphrees have improperly paid their rents under the two leases into the estate of Davidson since his death and that an accounting is in order. It should here be observed that Mr. Murphree is the executor of the Davidson estate.
In their answer and cross-bill the appellants denied the validity of the above-mentioned deed and averred that on the date said deed was purportedly executed Davidson was old, in poor health, and that if such a deed was executed by him, it was done as the result of undue influence and coercion exerted over him by John A. Smith. The cross-bill further charged that no consideration was paid for the property, or if any was paid, it was greatly less than the value of the property. It was also alleged that at the time of the execution of the said deed, if such were executed, a confidential relationship existed between John A. Smith and J. Floyd Davidson and that because of the latter's advanced age and physical and mental weakness, he was under the domination of Smith. The cross-bill then prayed for affirmative relief asking that the deed in question be decreed null and void, and that the Smiths be declared to have no right, title or interest in or to the subject property or to any rents or profits arising therefrom.
In answer to the cross-bill, the Smiths denied the averments thereof and stated that the grantor, Davidson, was mentally alert and physically fit when he executed the deed in question and that subsequent thereto he continued to transact and conduct his business affairs for many years. The Smiths denied that a confidential relationship existed between John A. Smith and Davidson and denied that the latter was under the influence and domination of Smith on the date of the conveyance. The answer to the cross-bill also denied that less than fair consideration had been given and stated to the contrary that just and reasonable consideration had been paid.
Testimony in this cause was taken on several occasions before the Register of the Court and after consideration thereof and of the pleadings and exhibits presented, the trial court found in favor of the Smiths. The questioned deed was held valid and the matter of an accounting was referred to the Register. The Register reported that the parties to the suit had stipulated the sum in controversy to be $8,355.79 and a final decree was rendered declaring Nina D. Smith to hold title to the subject property and awarding her the amount as stipulated.
The appellants have made seventeen assignments of error questioning the correctness of the trial court's findings of fact and rulings of law.
We shall begin by stating the rule that in an equity suit where the cause was *329 submitted to the trial court for a final decree on the pleadings and testimony of the witnesses taken orally before the Register, it is our duty to weigh and consider the evidence de novo and arrive at a conclusion without the aid of any presumption in favor of the trial court's findings of fact. Finney v. Story, 271 Ala. 284, 123 So. 2d 129; Clark v. Wood, 264 Ala. 415, 88 So. 2d 568; Armstrong v. Armstrong, 217 Ala. 581, 117 So. 195; Title 13, § 17, Code of Alabama 1940 (Recompiled 1958).
Assignments of error numbered one (1) through six (6) attack the trial court's decree generally, averring it is contrary to the evidence and applicable law, and, specifically, its finding that the deed from Mr. Davidson to the Smiths was valid and of full force and effect. Appellants contend that a confidential relationship was shown to have existed between John A. Smith and J. Floyd Davidson such as to give rise to a presumption of undue influence which the appellees failed to overcome by convincing proof. The appellants also argue that the evidence revealed that so insufficient, if any, consideration was paid that the deed should be set aside.
The trial court found that no such confidential relationship was established by the appellant's evidence and that, consequently, the burden of proof remained with the appellants to show by convincing evidence that the deed in question was executed as a direct result of undue influence and coercion. The court below determined that the appellants failed to meet that burden. The trial court also found from the evidence that reasonable and sufficient consideration was paid by the appellees for the subject property.
Though this Court is not bound by the findings of the trial court, we are bound by the same rules of law. One such rule, concerning the presumption of undue influence where a confidential relationship exists, was stated by Justice Lawson in Webb v. Webb, 250 Ala. 194, 33 So. 2d 909, as follows:
"But for such a presumption to be raised the evidence must [first] show clearly and satisfactorily: (1) That a confidential relation existed between the grantor and grantee; (2) that the grantee was the dominant spirit. Wooddy v. Matthews, 194 Ala. 390, 69 So. 607."
We have carefully examined the evidence in this case in light of the above rule and are convinced that the trial court was correct in upholding and validity of the deed in question. The appellant's evidence failed to establish a confidential relationship, did not show Smith to have been the dominant party in the transaction, and certainly fell short of convincing this Court that the subject deed was the result of undue influence and coercion. We also agree with the trial court that there was evidence presented from which it could be found that sufficient consideration was paid for the property.
Since we have upheld the validity of the Smith's deed, the trial court's ruling concerning appellee's permission to sell other parcels (assignment of error 7) is of no consequence to this proceeding because the title to those lands is not here contested.
Appellant's assignments of error numbered eight (8) and nine (9) are without merit. The validity of a deed, as between the grantor and grantee therein, is not dependent upon its timely recordation. The recording statute, Title 47, § 120, Code of Alabama 1940 (Recompiled 1958), does not render void an unrecorded deed except for the benefit of those particular classes of persons named in the statute. Williams v. Fundaburk, 237 Ala. 30, 185 So. 383; Alexander v. Fountain, 195 Ala. 3, 70 So. 669. The trial court ruled that the rents from the subject leases were due to be apportioned between Davidson's heirs and the Smith's as provided by law, Title 31, § 14, Code of Alabama 1940 (Recompiled 1958), the estate taking that portion of the rents which accrued prior to the death of Davidson, the life tenant, if any, *330 and the Smiths, the remaindermen, taking that portion accruing after Davidson's death and up to the termination of the leases. The law on this point is quite clear and the trial court's ruling is in complete accord therewith.
We agree with the ruling of the trial court to the effect that the clear wording of the recording statute does not embrace within its purview a devisee.[2] The only exception to this rule recognized by our cases is where a devisee is treated as a "purchaser" for value due to a contractual obligation of the testator to devise to such divisee specific property. Larkins v. Howard, 252 Ala. 9, 39 So. 2d 244, 7 A. L.R.2d 54.[3] None of the appellants here claim to come within the Larkins exception. It is scarcely necessary to add that a testator by will can convey only such property as he has. 94 C.J.S. Wills § 76, p. 782; Hooper v. Britt, 35 Ala.App. 612, 51 So. 2d 547.
Appellants' assignments of error numbered ten (10) and eleven (11) were not substantially argued in brief and will be deemed waived. Supreme Court Rule 9.
Assignments of error numbered twelve (12), thirteen (13) and fourteen (14) deal with matters which we feel were within the sound discretion of the trial court and, there being no evidence of abuse, will not be reviewed. Howard v. Cooke, 238 Ala. 317, 191 So. 341; Ex parte State ex rel. Brittain, 237 Ala. 164, 186 So. 148.
Assignment of error fifteen (15) complains of the trial court's ruling that the appellants were guilty of laches. We consider such question moot, since we have heretofore upheld the validity of the subject deed on other grounds.
As stated earlier, the title to the small parcels deeded to third parties by Davidson after his conveyance to the Smiths is not an issue in the present case. Consequently, we hold appellants' assignment of error number sixteen (16) to be of no merit.
Assignment of error seventeen (17) has also been answered previously. Since the deed to the Smiths is valid and John A. Smith's heirs at law have assigned all their right and interest in this litigation to Nina D. Smith, the trial court committed no error in holding Mrs. Smith to be the fee owner of the subject property.
Having determined that the appellants have failed to expose any error made by the court below and upon due consideration of the entire record before us, we are of the opinion that the final decree entered by the trial court is due to be and is hereby affirmed.
Judgment affirmed.
COLEMAN, BLOODWORTH, McCALL, and FAULKNER, JJ., concur.
[1] John A. Smith died intestate while this cause was pending and his heirs at law assigned whatever interest they might have in this litigation to his widow, Nina D. Smith.
[2] See Powell on Real Property, § 915 (1972); see also First Presbyterian Church v. York Depository, 27 S.E.2d 573 (S.C.1943).
[3] As to the rights of a purchaser from, or one claiming through, an heir or devisee, see 65 A.L.R. 360. | May 3, 1973 |
5539d826-c1cc-490a-9469-8391e3fb81f0 | Washington v. State | 276 So. 2d 587 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 587 (1973)
Felix Ernest WASHINGTON
v.
STATE of Alabama.
SC 317.
Supreme Court of Alabama.
April 19, 1973.
*588 Gerard J. Durward, Birmingham, for appellant.
William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
On the evening of September 18, 1971, Lula Hooks, a widow, was enjoying a cozy evening in her home in Birmingham. With her guests, Chester and May Bell Brown, she was quietly watching television in the den. Suddenly this calm and restful scene was interrupted by a loud explosion. Mrs. Hooks' home had been fire-bombed. The whole front of the house was enveloped in flames. Mrs. Hooks screamed and ran outside. With the aid of a garden hose, she and Mr. Brown succeeded in dousing the flames.
Shortly thereafter the police apprehended Felix Ernest Washington not far from the scene. He was indicted, tried, and convicted of first-degree arson (Title 14, § 23, Code of Alabama 1940, Recompiled 1958), and sentenced to ten years in the penitentiary. Washington appealed to the Alabama Court of Criminal Appeals. On March 29, 1973, the cause was transferred to this Court.
The evidence amply supported the jury verdict of guilty. Matthew Leatherwood testified to having driven the defendant and two others close to Mrs. Hooks' home. Two of the three men got out of the car. Leatherwood testified as follows:
"Q. What happened then?
"Q. Two fellows?
"A. Running back towards my car.
"Q. Was one of them this defendant?
"A. Yes, sir.
Defendant Washington, taking the stand in his own defense, confirmed virtually every part of Leatherwood's testimony, being in the vicinity of Mrs. Hooks' home, leaving the car, coming back to it, driving awaybut omitted the part about the flames.
One mystery of the case is the motivation for fire-bombing Mrs. Hooks' home. She testified that the defendant was a stranger to her; he testified that she was a stranger to him. Yet the evidence indicated that defendant made a phone call to insure that he would find the right house, and was overheard in front of another house saying, "This is not the street. This is the wrong house." Nothing in the record even hints at why defendant might have wanted to fire-bomb Mrs. Hooks' home. However, the State is not required to prove motive as an element of its case. Mount v. State, 32 Ala.App. 235, 24 So. 2d 142 (1945); Clifton v. State, 73 Ala. 473 (1883).
Arson of a dwelling house is one of the most heinous and severely punished crimes known to our law. The reader of the daily newspaper is well aware of how often such a crime results in the death of innocent human beings.
However, appellant argues he was improperly convicted because the house did not burn. It appears that the flames from the fire-bomb, which initially enveloped the whole front of the house, were rapidly extinguished by the garden hose, and little *589 permanent damage was done. Mrs. Hooks' picture window was broken and blackened, some smoke seeped into the interior of the house through the break, the ledge below the window was blackened, and there was some burning on the eave over the window.
It is a cardinal principle of the law of arson that some part of the building must actually be burned or consumed, in order for the offense to be complete. Rex v. Stallion, 1 Moody, C.C. 398 (1833); Graham v. State, 40 Ala. 659 (1867). Any destruction or consumption of the material of the building, however slight, will be sufficient. Robinson v. State, 47 Ala.App. 51, 249 So. 2d 872 (1971); Luke v. State, 49 Ala. 30 (1873); Graham v. State, supra.
We think the uncontroverted testimony of Robert Young, Arson Investigator for the Birmingham Fire Department, that there was:
was sufficient to take the case to the jury. Further evidence, in the form of photographs showing a blackened window sill, was also sufficient to take the case to the jury.
We hold that although the burning was slight, there was sufficient evidence of actual burning of part of Mrs. Hooks' house to support a conviction of first-degree arson. Robinson v. State, supra.
Since the argument that the house was insufficiently burned was the appellant's sole ground of appeal, we have undertaken to scrutinize the record in search of other possible error. No such error has been revealed by our review. The judgment and sentence must be and hereby are affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | April 19, 1973 |
b3b784de-8677-4483-9da0-2f1fe657cf9d | Tell v. State | 277 So. 2d 898 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 898 (1973)
Charles Edward Lee TELL
v.
The STATE of Alabama.
SC 316.
Supreme Court of Alabama.
May 10, 1973.
*899 Thomas Seay, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
The defendant-appellant, Tell, was convicted for the offense of rape by a Circuit Court jury in Jefferson County. His punishment was fixed at death. After his conviction and sentence he filed a motion for new trial. The trial court overruled the motion. The defendant appeals from the order.
The motion for new trial contained numerous grounds. In brief the defendant argues that the death sentence is cruel and inhuman; that the court erred in refusing written requested charges Numbers 2 and 6, which are set out hereinbelow.
Charge Number 2 appearing on page 6 of the transcript is:
The word "Refused" and the letters "J. J. J." follow the requested charge.
Charge Number 6 appearing on the same page of the transcript is:
The word "Refused" and the letters "J. J. J." appear below the requested charge.
This is the second time the defendant has appealed to this Court. He was previously tried and convicted by a jury of the offense of rape of this prosecutrix and his punishment was fixed at death. On appeal his conviction and sentence were reversed by this Court because evidence of a stolen automobile may have influenced the minds of the jury and prejudiced him. Tell v. State, 285 Ala. 234, 231 So. 2d 107 (1970).
The facts adduced at the trial of this case are so depressingly wretched that they send shock waves through the mind of a moral, normal person.
The facts pertinent to this case are as follows:
The prosecutrix testified that she worked in a doctor's office in 1968; that on the night of April 16, 1968, at approximately 11:00 P.M., she drove her car to the residence of her baby-sitter in Birmingham to get her three-year-old son.
*900 Her attendance at a night school was the reason for her leaving her child with a "sitter". She noticed that she was being followed by an automobile. It parked across the street when she drove into the driveway of the sitter. When she returned to her car she saw the defendant under a flood light at the end of the driveway. When she attempted to open the door of her car, the defendant pointed the barrel of a gun at her head and ordered her to get in her automobile. He got under the steering wheel and drove it to a place near the Farmers' Market on Finley Avenue. While driving along the street he robbed her of $7.00, which was all the money she had. When the defendant parked he ordered her onto the back seat and to undress. She pleaded with him to leave her and the child alone and to not harm them. She was having her monthly period. Her plea went unheeded. When she was completely nude, and with the gun at her head, the defendant raped her. When he was finished he ordered her to dress and get in the front seat. He drove to a second place, parked, ordered her to undress again, and raped her a second time. The gun this time, as well as the first, was the "friendly persuasion". He then began to ask her questions about her age, her name, where she worked, and whether she had a boyfriend. She was requested by the defendant to write her address and telephone number on a piece of paper. She complied. During the conversation, and with the gun at her head, he asked her if she was going to tell. Being a very sensible woman she answered "No". He then ordered her to straddle his lap and raped her again. This time, for additional amusement and satisfaction, he struck matches for light to observe. He then ordered her to kiss him. She did. He ordered her to kiss his penis. She did. She gagged, and choked, and sat up. He raped her againfour times during the time he was with her. He told her he had her name and address and would come back to get her if she told the police. After this despicable ordeal, and after wiping her blood from the steering wheel, he returned her and the child to the driveway of the baby-sitter where he got into his car and drove away. She drove to her apartment, put her child to bed, and reported the crime to a pharmacist friend of hers. The time was around 2:00 A.M. She reported to another friend at 6:30 A.M., who reported the crime to the police.
The prosecutrix had been too frightened to call the police. About twenty minutes after she returned to her apartment defendant called her on the phone to inquire as to whether she was going to tell anyone. She told him "No". He called again on the day of April 17, and on April 18. The police traced the calls and made the arrest at his place of employment on April 18, 1968. He had tried to flee upon learning the police were seeking him.
The defendant did not testify in the first trial, but in the second trial he testified in his own behalf, admitting that he had been convicted of the crimes of assault with intent to ravish, burglary, and grand larceny.
He testified that he met the prosecutrix at 7th Avenue and 20th Street, Birmingham, one day in February, 1968. He was coming from the Frank Nelson Building headed toward City Hall to pay a fine. When he reached 7th Avenue after walking up 20th Street, he saw the prosecutrix in a parked car on 7th Avenue. She was alone. She beckoned him to come to the car. She told him to come back there when he finished his business at City Hall. He stayed at City Hall thirty minutes and then returned to the parked automobile of the prosecutrix and they talked. This time there was a child on the front seat with the prosecutrix. She asked him to get in the car. He didon the back seatand she drove to a place behind Pollock Paper Company on the Southside28th Street, South and 7th Avenue. She parked the car there and they talked. The time was 10:00 to 10:30 A.M. when they began their conversation. They stayed there about 30 minutes. He had to be at work at 11:00 *901 A.M. at the Magic City Produce Company. She returned to downtown and let him out of her car at 5th Avenue, North and 20th Street. He testified that he and the prosecutrix met again about two weeks later at 18th Street and 20th Avenue. He called her, as she had given him her telephone number at their first meeting. She picked him up and they drove to a lovers' lane at Sayreton behind ACIPCO. He testified that she called him a week later; also that he and prosecutrix went out together four times. They engaged in the sex act twice each time they went out, with her consent. He testified that she had asked him for $50.00 and to leave the city with her. He could not leave because he had a wife and two children. On cross-examination by the State the defendant testified that the prosecutrix told him she worked at Dales Cellar Restaurant when they first met, and that they last met on Wednesday, April 17; that they went to the same place they had been and engaged in the sex act twice; that the child was with her; that the time was about 11:30 or 11:45 P.M.; that he talked to the prosecutrix Thursday morning and Thursday night; that he was arrested by the police on April 18.
The death penalty for rape has been set aside as a form of punishment in this State by this Court. Swain v. State, 290 Ala. 123, 274 So. 2d 305 (1973), on authority of Swain v. Alabama, 408 U.S. 936, 92 S. Ct. 2860, 33 L. Ed. 2d 753 (1972).
The next question to be answered and decided is whether there was error in refusing the requested charges.
Title 7, § 273, Code of Alabama 1940, Recompiled 1958, provides that, "The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or in charges given at the request of parties."
We are of the opinion that requested charges Number 2 and Number 6, set out in full supra, were adequately covered in the court's oral charge and charge Number 4 given at the request of the defendant.
The remaining issue in this case is the disposition of the defendant in view of the abolition of the death sentence. In Swain v. State, 290 Ala. 123, 274 So. 2d 305 (1973), a majority of this Court held that the death sentence would be reduced to life imprisonment in the State penitentiary without sending the case back to the lower court for sentencing. While the writer of this opinion dissented in Swain, certainty pertaining to procedure is demanded, and therefore Swain is followed in this case. We therefore hold that the sentence of death of the defendant is reduced to imprisonment in the State penitentiary for the rest of his natural life.
We find no error in the record
Modified and affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | May 10, 1973 |
7735a5d6-ef2b-4779-b74f-e50e909861ce | Whistenant v. State | 278 So. 2d 198 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 198 (1973)
In re Hugh Gray WHISTENANT
v.
STATE.
Ex parte Hugh Gray Whistenant.
SC328.
Supreme Court of Alabama.
May 17, 1973.
Donald W. Stewart, Anniston, for petitioner.
HARWOOD, Justice.
Petition of Hugh Gray Whistenant for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Whistenant v. State, 50 Ala.App. 182, 278 So. 2d 183.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | May 17, 1973 |
fa7814cb-64c0-4279-abc5-158b8b6c546d | Chrisman v. Brooks | 279 So. 2d 500 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 500 (1973)
Betty Idell CHRISMAN
v.
K.V. BROOKS, etc.
SC 73.
Supreme Court of Alabama.
June 7, 1973.
*501 Lusk & Lusk, Guntersville, Jenkins & Wallis, Birmingham, for appellant.
T. J. Carnes, Albertville, for appellee.
MERRILL, Justice.
This appeal is from a decree setting aside a deed from Millard Fillmore Nixon to his niece, Miss Betty I. Chrisman. The deed was executed on June 11, 1969 and Nixon died on June 30, 1969 at the age of eighty-four years. The complainant-appellee, K. V. Brooks, is his nephew and executor of Nixon's estate.
The bill of complaint, as amended, charged that at the time of the execution of the deed, the deceased did not have sufficient mental capacity to execute it, or, in the alternative, that the deed was procured by undue influence on the part of Miss Chrisman, the respondent, or again, in the alternative, that the deed was in effect a conveyance in trust or a constructive trust, and finally, that there was a failure of consideration for the deed. The prayer was that the deed be set aside. Practically all of the estate consisted of the property deeded to Miss Chrisman by Nixon.
We do not recall that any witness described Nixon as an eccentric, but we think the undisputed testimony concerning him when he was concededly mentally competent would support that terminology. Nixon had a college education and for years he had lived alone in Albertville near the *502 main business district. For the last ten or fifteen years of his life, he had not been employed and lived off his social security and welfare payments. Even though his normal behavior was, in some respects, odd, there was no evidence of mental incompetency until after he underwent an operation in a Huntsville hospital. But according to complainant's witnesses, Nixon's physical and mental deterioration began at that time.
When he was dismissed from the hospital at Huntsville, his niece, Miss Chrisman, a registered nurse, who was fifty-nine years of age, when the trial was had in 1971, took him to her home in Birmingham for his recuperation. He was hospitalized in a Birmingham hospital for pneumonia in September, 1968, again for two weeks of tests in April, 1969, and he was operated on for hernia in May, 1969. He was discharged in May and returned to the hospital on June 16, 1969, five days after he executed the deed and died of cancer of the pancreas on June 30, 1969.
We quote a part of the trial court's opinion:
To understand the reference to the hospital records which were in evidence, we quote a few entries from them. The following are some of the entries made during his hospitalization in 1968:
In Dr. Risman's signed history and physical examination, he referred to Nixon as "an elderly white male acutely ill" and that "there was obviously mild senility."
When Nixon was admitted to the hospital on April 10, 1969, Dr. Risman described the patient as "a warm, elderly, senile white male"; and when he was discharged on April 29, 1969, Dr. Risman referred to him as a "senile white male" * * * "discharged with the following diagnosis; arteriosclerotic heart disease with auricular fibrillation (2) inguinal hernia left (3) gout (4) emphysema (5) bronchiectasis (6) abdominal pain of undetermined etiology, possible carcinoma of pancreas manifested only by abnormal chemical tests."
A few of the notations on the clinical records during this period of hospitalization are listed:
Many entries note the "confused" state of the patient. Nixon left the hospital on a stretcher accompanied by Miss Chrisman.
The next day, April 30, he was back in the hospital for a hernia operation and was discharged on May 4. The surgeon wrote of Nixon's previous hospitalization, "It was thought that abdominal pain was probably due to carcinoma of the body or tail of the pancreas."
Nixon remained at Miss Chrisman's home until June 16. It was in this interval that the deed was executed on June 11. A few notations from his final hospitalization read:
Nixon underwent another operation on June 24 and between then and June 30, he seems to have known little except discomfort and pain.
Mr. Nixon's will, executed October 11, 1965, bequeathed any money to be divided between K. V. Brooks, Helen Schlinkert, Edna Vieth, B. I. Chrisman and Aurelia Ferris. He also provided that his real estate be divided among these same five people and James Cox and Delmer Jones, share and share alike.
The evidence as to competency and undue influence was in sharp conflict.
The burden was on the complainant to establish to the reasonable satisfaction of the trier of fact that Nixon did not have sufficient mental capacity to understand in a reasonable manner the nature and effect of his act in executing the deed. Complainant's evidence, if believed, met this burden. Blackwell v. Sewall, 280 Ala. *504 359, 194 So. 2d 519; Spence v. Spence, 239 Ala. 480, 195 So. 717.
Where evidence is heard orally before the trial court, the finding of the court has the effect of a jury's verdict and will not be disturbed on appeal, unless plainly erroneous, whether in law or equity. And we must affirm the trial court's decree, if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Patterson v. Brooks, 285 Ala. 349, 232 So. 2d 598. This rule has been applied in the following recent cases where the deed was set aside because of the incompetency of the grantors, or undue influence or both: Skinner v. Todd, 283 Ala. 279, 215 So. 2d 721; Blackwell v. Sewall, 280 Ala. 359, 194 So. 2d 519; McBrayer v. Smith, 278 Ala. 247, 177 So. 2d 571; Gilbreath v. Gilbreath, 278 Ala. 289, 177 So. 2d 915; Mize v. Mize, 273 Ala. 369, 141 So. 2d 200; Casey v. Krump, 263 Ala. 346, 82 So. 2d 424; Payne v. Payne, 284 Ala. 699, 228 So. 2d 15.
While the evidence is not without conflict on material questions, and that of the respondent would support a verdict or decree in her favor, yet we cannot say that the decree is plainly or palpably wrong and therefore we are not inclined to disturb the decree of the trial court. Moore v. Walker, 201 Ala. 629, 79 So. 191.
Under assignment 1, which charges that the court erred in overruling the demurrer to the amended bill of complaint, appellant argues that the allegations of mental incapacity and undue influence are insufficient. We think the averments of the bill are sufficient to raise the issue of the soundness of mind of the grantor and as a bill to cancel for undue influence. Cox v. Parker, 212 Ala. 35, 101 So. 657. In Cox, this court also said:
Assignment 8 charges error in the overruling of an objection to a question designed to show that there was ill will among Nixon and his brothers and sisters when the will of Jim Nixon (Nixon's father) was contested by two of Nixon's brothers. The trial court first sustained the objection and after its attention was called to the fact that this being an equity case, the court would only consider relevant evidence, Tit. 7, § 372(1), the court overruled the objection, presumably leaving the parties where they were before the two objections of appellant were made. However, assuming without conceding that the trial court erred, it was harmless error because the appellant introduced, without objection, the entire file in the will dissent case about which the witness was being questioned and the file showed that the will of Jim Nixon had been contested and it resulted in a decision of "no will."
*505 Prejudicial error may not be predicated upon the admission of evidence which has been admitted without objection or motion to exclude at some other stage of the trial. Turner v. Blanton, 277 Ala. 536, 173 So. 2d 80; Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So. 2d 110.
Assignment 9 charges error in the overruling of an objection. The record shows in part:
In the first place, there is no record of any ruling of the court. The objection was neither overruled nor sustained. After a lengthy colloquy, the court said, "All right. Go ahead." Where the trial court in an equity case did not specially rule on the legality of evidence, the presumption exists that the trial judge considered only that which was relevant, material, competent and legal, and findings by the trial court must be upheld when there was legal evidence before him. Tit. 7, § 372(1), Code 1940; Dougherty v. Hood, 262 Ala. 311, 78 So. 2d 324; Gibson v. Anderson, 265 Ala. 553, 92 So. 2d 692. Secondly, what we stated in discussing assignment 8, as to Tit. 7, § 372(1), is also applicable here.
Assignment 10 charges error in the overruling of objections to the introduction of complainant's Exhibit 1-X, which was a letter from the attending surgeon, Dr. Patton, to attorney (now Judge) Clark E. Johnson, Jr., in which the surgeon commented on Nixon's mentality. The sole objection was that Dr. Patton's letter had not been properly authenticated, but counsel for appellant did state to the court"I will agree that it (the comment in the letter) is in direct conflict to the evidence he (Dr. Patton) gave on deposition." The deposition had been introduced into evidence by appellant.
Again, there is no record of any ruling of the court. And again, the presumption is that the court, under Tit. 7, § 372(1), considered "only such testimony and evidence as is relevant, material, competent and legal."
Moreover, the objection that Dr. Patton's letter was not authenticated was without merit. Judge Johnson testified that he had written the letter to Dr. Patton making the inquiry and that letter was received in evidence as Exhibit 1-W. Counsel for appellant stated to the court that no objection was made to that exhibit because "it has been properly proved by Judge Johnson." Then Judge Johnson stated that Exhibit 1-X was "a reply which I received from Dr. T. B. Patton."
Where letters are shown to have been received in the due course of mail and were on the letterhead of the alleged sender and were in response to letters previously written to the sender, the presumption is that the letters were written by the purported sender, or for him by someone authorized by him, which presumption continues until overcome by evidence to the contrary or by the purported sender. State v. Massey, 271 Ala. 397, 124 So. 2d 462; Reliance Life Ins. Co. v. Russell, 208 Ala. 559, 94 So. 748; White v. Tolliver, 110 Ala. 300, 20 So. 97.
Affirmed.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | June 7, 1973 |
82a585e2-b758-4590-a76a-8dcac7716be3 | Grund v. Jefferson County | 277 So. 2d 334 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 334 (1973)
Clarence B. GRUND, Jr., et al.
v.
JEFFERSON COUNTY, a Political Subdivision of the State of Alabama, et al.
SC 82.
Supreme Court of Alabama.
May 3, 1973.
*336 John Martin Galese, Birmingham, for appellants.
J. Fred Powell, Birmingham, for appellee, U. S. Steel Corp.
BLOODWORTH, Justice.
An original bill of complaint was filed by appellants (hereinafter referred to as complainants) seeking a declaratory judgment as to the validity of a zoning ordinance of Jefferson County, which rezoned a certain tract of land in that county from its prior zoning classification of E-2 (Estates) to C-1 (Commercial) and R-4 (Multiple Dwellings) in order that a neighborhood shopping center and luxury apartments could be constructed.
The bill avers, inter alia, that the action of the Jefferson County Commission constitutes "spot zoning," is discriminatory, confiscatory, arbitrary and capricious, bears no relationship to the health, safety, welfare or morals of Jefferson County, and is unconstitutional as violative of the Equal Protection and Due Process clauses of the United States Constitution and the Constitution of Alabama. The bill sought a permanent injunction to restrain the respondents from enforcing the rezoning ordinance and to restrain respondents from using the land for apartments and shopping centers.
The tract of land in question is part of a larger tract owned by appellee-respondent, United States Steel Corporation, the party which had filed the application requesting the zoning change. Approximately nine acres of the tract were rezoned to a classification permitting a neighborhood shopping center and approximately thirty-two acres were rezoned to a classification permitting the construction of luxury apartments.
After hearing the testimony ore tenus, the trial court entered its final decree, in which it found that the complainants "failed to establish a basis, in law, in fact or in equity, upon which the Court may base a decree which would respond favorably to Complainants to the prayers contained in the Bill of Complaint." The cause was dismissed with prejudice and costs taxed against the complainants.
Complainants contend on this appeal that the trial court should have made a declaration of the rights and other legal relationships of the parties on the issues as presented. It is insisted that, once the issues are raised by the pleadings and a justiciable controversy is shown to exist, the Alabama Declaratory Judgment Act (Title 7, §§ 156-168, Code of Alabama 1940) requires that a final decree be rendered to give full and complete relief, determine all rights and make all necessary declarations between the parties.
We believe that the final decree of the trial court in this case did uphold the validity and constitutionality of the zoning ordinance and did recognize that the action of the Jefferson County Commission was not arbitrary and capricious. Such conclusions were obviously implied from the findings the court did make that the complainants failed to establish the averments of their bill of complaint. We know of no rule of law, nor has any been cited to us, requiring the trial court, in its final decree, to expressly state "The action of the County Commission did not constitute `spot zoning'." or "The action of the County Commission was not arbitrary and capricious." as complainants seem to suggest. We do not read Fegaro v. South Central Bell, 287 Ala. 407, 252 So. 2d 66 (1971) to so hold.
The rule of our decisions is that we will presume that the trial court made such finding or findings, as will support the decree rendered, when no formal finding *337 of fact has been made. Dockery v. Hammer, 281 Ala. 343, 202 So. 2d 550 (1967).
We also think it appropriate here to restate what this court stated in Waters v. City of Birmingham, 282 Ala. 104, 209 So. 2d 388 (1968):
Complainants contend that, since the Jefferson County Commission failed to require studies to be made with regard to the impact which the rezoning would have on the inhabitants of Jefferson County, the trial court erred in not declaring that the action of the County Commission was arbitrary and capricious.
Complainants' theory in this regard seems to be that Act 344, General Acts of 1947, as amended,[1] which grants to Jefferson County the power to zone [see §§ 970-974, Appendix, Vol. 14, Code of Alabama], requires that the county consider the impact of the proposed rezoning on the morals, health, safety and welfare of the county, for the purposes set out in the above statute, as amended, by having studies made relative thereto.
We do not perceive that any requirement exists by reason of the statute which makes such studies mandatory. Moreover, the record shows that studies and investigations were made with regard to this particular zoning request, though not in the precise manner insisted upon by complainants. It is not contended by complainants that the mandatory procedural requirements, relating to due process, were not followed in this case. The record seems clearly to show that these procedures were followed.
In Waters v. City of Birmingham, 282 Ala. 104, 209 So. 2d 388 (1968), this court held that:
In Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So. 2d 726 (1967), it was stated that:
We believe that the ordinance in this case is fairly debatable, and we will not say that it "passes the bounds of reason and assumes the character of a merely arbitrary fiat."
A public hearing was had at which persons who were opposed to the proposed rezoning expressed their views to the Jefferson County Planning and Zoning Board. Additionally, written petitions and briefs were submitted on behalf of these persons. Further, two of the three members of the County Commission made personal visits to the site of the proposed rezoning. Respondent, United States Steel, made a presentation to the Planning and Zoning Board as *338 to the results of its investigations, which included investigations as to the adequacy and availability of municipal services at the site of the proposed rezoning.
After extensive debate on the proposed rezoning, the Jefferson County Planning and Zoning Board unanimously recommended the rezoning, and this recommendation was unanimously adopted by the Jefferson County Commission. Upon the record before us, we could hardly hold that this action was arbitrary and capricious as contended by complainants.
Complainants assert that the action of the Jefferson County Commission constituted "spot zoning" and is therefore illegal.
In Come v. Chancy, 289 Ala. 555, 269 So. 2d 88 (1972), this court, per Harwood, J., stated with respect to "spot zoning":
As we have already determined that the action of the County Commission of Jefferson County was not arbitrary and capricious, we think that the issue of `spot zoning' raised by complainants is sufficiently answered.
Moreover, we wrote in Haas v. City of Mobile, 289 Ala. 16, 265 So. 2d 564 (1972) (Per Heflin, C.J.):
There is an existing comprehensive plan in effect in the instant case.
Finally, complainants urge this court to adopt a rule of law that a property owner has a legal right to insist that a zoning classification, as originally enacted, remain unchanged until a change is required in the public interest or where there has been a material change in the character of the land, and that zoning changes are illegal when made merely to accommodate private interests detrimental to the welfare of others. No Alabama cases are cited for this proposition.
Under our decisions, the passage of a zoning ordinance is a legislative function. Cudd v. City of Homewood, 284 Ala. 268, 224 So. 2d 625 (1969). Local authorities, *339 such as the Jefferson County Commission, must be granted some measure of discretion in framing zoning ordinances. Marshall v. City of Mobile, 250 Ala. 646, 35 So. 2d 553 (1948).
The County Commission of Jefferson County has authority to zone by virtue of legislative enactments. The zoning and rezoning of property, in accordance with a comprehensive plan, rests largely in the discretion of the County Commission, under the rule of our decisions. Thus, this contention of complainants must fail.
The judgment of the trial court is due to be affirmed.
Affirmed.
COLEMAN, McCALL, FAULKNER and JONES, JJ., concur.
[1] Recently we upheld Act 344 upon attack on constitutional and other grounds. See Masters v. Pruce [1973], 290 Ala. 56, 274 So. 2d 33. | May 3, 1973 |
4e336538-7ac5-4699-9036-c52f56591d93 | American Radio Ass'n, AFL-CIO v. Mobile SS Ass'n, Inc. | 279 So. 2d 467 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 467 (1973)
AMERICAN RADIO ASSOCIATION, AFL-CIO, etc., et al.
v.
MOBILE STEAMSHIP ASSOCIATION, INC., et al.
SC 12.
Supreme Court of Alabama.
May 3, 1973.
Rehearing Denied July 5, 1973.
*468 Simon & Wood, Mobile, Schulman, Abarbanel & Schlesinger, New York City, for appellants.
Frank B. McRight and Kirk C. Shaw, Mobile, for appellee Mobile Steamship Ass'n.
Alex F. Lankford, III, Mobile, for appellee Robert E. Malone.
McCALL, Justice.
The American Radio Association, AFL-CIO, an unincorporated labor organization, and other respondents in this cause, hereafter sometimes called the "Unions," appeal from an order of the circuit court, granting, after notice and a court hearing, a writ of temporary injunction, enjoining and restraining the appellants from picketing.
The appellee Mobile Steamship Association, Inc. is the representative and agent of numerous steamship and contract stevedoring companies who do business at the Port of Mobile. The appellee acts as collective bargaining representative and contract negotiator on behalf of its several principals in their business relations with local unions *469 of the International Longshoremen's Association, who supply the stevedoring services for the loading and discharging of cargo carried by numerous ships calling at the Port of Mobile.
The appellee, Robert E. Malone, who was allowed to intervene in the cause, is a farmer in Mobile County. He grows soybeans which are delivered in sale by him at the grain elevator at the Alabama State Docks. Soybeans are exported by ship through the State Docks facility.
Shortly after noon on November 3, 1971, pickets for several of the appellant unions appeared at land entrances to the Alabama State Docks at Mobile, picketing and patrolling with uniform signs reading as follows:
The names of the picketing unions appeared beneath the quoted matter.
In addition to carrying the picketing signs, the pickets distributed to those persons, who asked if they should cross the picket line, leaflets which read as follows:
The names of the unions again appeared at the bottom of the leaflets.
Two days later the pickets shifted to pier side, where the S.S. Aqua Glory and S.S. Bel Hudson were berthed. Soon afterwards the pickets were withdrawn from the Bel Hudson, a ship of British registry.
The Aqua Glory was a foreign-flag ship of Liberian registry, engaged in carrying cargo in foreign commerce, and manned by a crew of alien seamen. No more than four persons engaged in the picketing along pier side at the gangway to the Aqua Glory. No breach of contract was involved. The picketing was peaceful and without any violence. There was no mass picketing, no trespassing on the property of others, no blocking of ingress or egress, no shouting, no assaults, and no overt acts of force. The pickets, while on duty carried their signs, but refused to converse with other individuals. They remained silent and only referred inquisitors to their picketing signs and handed them one of the above described leaflets. The appellant unions asserted that they purposed to picket all foreign-flag ships that docket at the port in order to evidence a nationwide protest by American Maritime Workers over the loss of their jobs to foreign-flag vessels which paid wages and benefits substandard *470 in contrast to those paid on American-flag vessels. The appellants insisted that they would attack the problem of the loss of job opportunities for American seamen in the United States to foreign-flag vessels by publicity or informational picketing and the distribution of literature in selected American ports, including the Port of Mobile, requesting the public not to patronize foreign-flag vessels which were picketed, but to patronize American-flag vessels, pointing out to the public that wages and benefits paid to foreign-flag seamen were vastly inferior to those paid American seamen.
Posting the pickets, as was done on the dock adjacent to the Aqua Glory, brought about an immediate refusal by the stevedore workers of the locals of International Longshoremen's Association to cross the picket line of the appellant unions. About eighty percent of the cargo ships that enter the Port of Mobile, sail under a foreign-flag and are manned by alien crews.
The appellees complained that the picketing was illegal because it interfered with contractual relations between members of the appellee association and companies owning and operating foreign-flag vessels, and, wrongfully interfered with lawful business of the appellees.
There was no dispute between the operators of the Aqua Glory and her foreign crew. But there was a labor dispute between the American unions and the operators of the Aqua Glory. This was brought about by substandard wages and benefits, resulting in loss of jobs by American seamen. The American unions contend that they are seeking relief from this situation. A labor dispute includes any controversy concerning terms, tenure or conditions of employment, regardless of whether the disputants stand in the proximate relation of employee and employer. 29 U.S.C. § 152(9).
The threshold point for determination is, granting there is a labor dispute between the unions and the foreign companies, is it a "labor dispute" of such nature that the Labor Management Relations Act, 29 U.S. C. § 141 et seq., preempts the jurisdiction of the state courts of Alabama?
The appellants contend that the jurisdiction of the state court is preempted by the Labor Management Relations Act, 29 U.S. C. § 141 et seq. and that exclusive jurisdiction of the case is reserved to the National Labor Relations Board. In opposition the appellees assert that the jurisdictional provisions of the National Labor Relations Act, 29 U.S.C. § 151 et seq. as amended by the Labor Management Relations Act, 1947, 29 U.S.C. § 141 et seq. do not extend to maritime operations of foreign-flag ships employing alien seamen. 48 Am.Jur. 2d, § 405, p. 296. If the appellees' insistence be a correct statement of law, then, under the facts in this case, the state court did not lack jurisdiction to entertain this suit in equity as urged by the appellants.
As already pointed out, there is a labor dispute here between the unions and foreign ship companies over terms, tenure and conditions of employment by them of their foreign crews. The picketing of the foreign ship has the effect to both publicize the unions' grievance against substandard wages as well as to bring pressure on the foreign employer to pay its seamen higher wages and provide them additional benefits. This purpose is borne out by the language of the placards and leaflets. The Supreme Court of the United States has refused to apply the provisions of the National Labor Relations Act in instances concerning the internal affairs of foreign ships even when in American ports and arguably affecting the American economy. Congress has not clearly extended NLRB jurisdiction to such matters and the court has been unwilling to find board jurisdiction in an area where international relations are involved. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S. Ct. 671, 9 L. Ed. 2d 547 (1963).
*471 In McCulloch v. Sociedad Nacional de Marineros de Honduras, supra, United Fruit Company, a New Jersey corporation, owned all of the stock of Empresa Hondurena de Vapores, S.A., a Honduran corporation, which legally owned each of the vessels, sought to be unionized. Each vessel flew a foreign flag, carried a foreign crew and had other contacts with the nation of its flag. The National Labor Relations Board ordered an election in a representation proceeding on application of the National Maritime Union, which had the effect of canceling the bargaining contract that Empresa's seamen had with their Honduran Union, Sociedad. Sociedad brought one of the suits involved on appeal to prevent the election.
The court said that the basic question was whether the NLRA as written was intended to have any application to foreign registered vessels employing only alien seamen. After noting that the Congress and the State Department had recognized the right of foreign ships to conduct their own internal affairs, the court concluded, citing Benz v. Compania Naviera Hidalgo, 353 U.S. 138 at 147, 77 S. Ct. 699 at 704, 1 L. Ed. 2d 709, that "to sanction the exercise of local sovereignty under such conditions in this `delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed.'"
Explaining further its rationale, the court, 372 U.S. at p. 18, 83 S.Ct. at p. 676, in McCulloch, supra, said:
Again in Incres Steamship Company v. International Maritime Workers Union, 372 U.S. 24, 83 S. Ct. 611, 9 L. Ed. 2d 557 (1963), the facts involved an American seamen's union picketing a foreign owned vessel, manned by a foreign crew, in a campaign to organize the crew. The court held that the NLRB was without jurisdiction, saying:
Applying the rationale of the above decisions of the Supreme Court of the United States to the facts of the case at hand, we conclude that the Labor Management Relations Act of 1947 does not apply in this case and did not preempt the state court from entertaining jurisdiction of the cause. The dispute was either one between the unions and the foreign shipowners to force a raise in the internal standards of those vessels, or one where the intent was to block use of those ships to force Congress to act in the international sphere, which in either case are matters affecting international relations and not properly for NLRB jurisdiction.
We disagree with the appellants' contention that the state court may not grant injunctive relief because the Norris-La-Guardia Act, 29 U.S.C. § 101 et seq., prohibits the issuance of any restraining order or temporary or permanent injunction by a state court in a peaceful labor dispute.
The Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. provides as follows:
29 U.S.C. § 113(d) defines the term "court of the United States" as follows:
The anti-injunction provisions of the Norris-LaGuardia Act are not applicable to state courts and hence, do not deprive them of jurisdiction to issue an injunction in a case involving a labor dispute.
In Ford v. Boeger, 362 F.2d 999 (1966); certiorari denied sub nom Curtis v. Boeger, 386 U.S. 914, 87 S. Ct. 857, 17 L. Ed. 2d 787; petition for rehearing denied 386 U.S. 978, 87 S. Ct. 1160, 18 L. Ed. 2d 140; motion for leave to file second petition for rehearing denied 387 U.S. 949, 87 S. Ct. 2072, 18 L. Ed. 2d 1341, the court said:
In the cited case of American Dredging Co. v. Local 25, Marine Div., Int'l Union of Operative Eng'rs, 338 F.2d 837, 852 (3d Cir. 1964), certiorari denied 380 U.S. 935, 85 S. Ct. 941, 13 L. Ed. 2d 822 (1965), the court stated:
Among other cases holding without merit the contention that the Norris-La-Guardia Act deprived the court below of jurisdiction to issue the injunction in this labor dispute are the following decisions of state courts: Shaw Electric Co., Inc. v. International Brotherhood Electrical Workers, Local Union 98, 418 Pa. 1, 208 A.2d 769 (1965); South Atlantic and Gulf Coast District, International Longshoremen's Ass'n v. Producers Grain Corporation, 437 S.W.2d 33 (Tex.Civ.App.1969).
We are aware that there is considerable difference of thought on the legality of state court injunctions in matters involving labor disputes. To this we can only say that generally where there is a clearly defined labor dispute affecting commerce the NLRB has jurisdiction preemptive of all courts state and federal. But, as here, where the dispute is one where commerce, as covered by the federal act, is not involved, and the resulting effect, albeit non-direct, of the dispute immediately endangers the business activities of a large segment of the area's population, we think that it is neither illegal nor improper for the court to take jurisdiction and deal temporarily with the subject matter.
The second tier of the dispute on appeal involves the propriety of the issuance of the temporary injunction. Specifically, even though there was no NLRB preemption, was the activity involved protected by the First Amendment as free expression; or was it such unlawful interference with the business of another as will be enjoined under our state laws?
The appellant unions contend that their activity is protected as free speech under the United States Constitution as construed in Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093, and its progeny. We are mindful however of the characterization of similar matters as "speech plus," that is, speech with collateral consequences involved that invite regulation, or, as matters excepted from First Amendment protection because of overriding state interest. The First and Fourteenth Amendments do not afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets as those amendments afford to those who communicate by pure speech.
The case of International Brotherhood of Teamsters v. Vogt, Inc., 354 U.S. 284, 77 S. Ct. 1166, 1 L. Ed. 2d 1347 (1957) has approached resolving the issue in the labor forum. In Vogt, a union, having a dispute with a group of nonunion workers, picketed the employer's place of business. In consequence, truckers of other employers refused to haul to and from Vogt's business. The neutral employer sought and obtained a state court injunction. The court noted the historical development of the theory that labor picketing is protected free speech, beginning in the Thornhill case, supra, and furthered in AF of L v. Swing, 312 U.S. 321, 61 S. Ct. 568, 85 L. Ed. 855 (1941). After analyzing these decisions, the Vogt case, supra, went on to admit that the reach of those opinions had perhaps exceeded practicality, and discussed three subsequent Supreme Court cases which strongly parallel the present dispute. In Giboney v. Empire Storage & *474 Ice Co., 336 U.S. 490, 497, 69 S. Ct. 684, 688, 93 L. Ed. 834 (1949), the court said:
In Hughes v. Superior Court of California, 339 U.S. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1950), and in International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470, 70 S. Ct. 773, 94 L. Ed. 975 (1950), state court injunctions against picketing were upheld on a showing that the courts were effecting a valid state interest or public policy. In Hughes, the policy was against racial-quota hiring and in Hanke the policy was the avoidance of forced union ship agreements. The court in Vogt held that, while states cannot enact blanket prohibitions against picketing, where there are conflicting interests between the picketers and the public policy of a state, the picketing can be enjoined, and allowed the state court injunction against picketing to stand.
In the instant case as will be shown infra, we think there was evidence sufficient to support a finding that the action of the unions was in part with the goal of interfering with the business of the appellees in their shipping and farming operations. The United States Court of Appeals for the First Circuit has recently noted that there is a valid state interest in the preservation of local economy.
In Grinnell Corp. v. Hackett, 475 F.2d 449 (CA 1st Cir., March 15, 1973) which admittedly did not involve a picketing injunction, the court recognized two economic and social effects which are valid interests of the state and may be considered in labor disputes. The first of the two effects, the avoidance of violence in strikes, is not here present, but the second recognized effect of a labor dispute is. The court noted that a state may be validly concerned with the "avoidance of economic stagnation in the local community" caused by strike activity.
We feel the Circuit Court in Mobile County could validly consider the economic effects of the picketing at the particular time the dispute was in progress and issue its order ceasing all picketing until the underlying questions could be resolved without unlawfully interfering with appellants' rights to express themselves on the disputed issue.
While peaceful picketing, standing alone, is conceded to be lawful and is not to be enjoined, picketing still may be enjoined if it is done in an unlawful manner or for an unlawful purpose. Local No. 612, International Brotherhood of Teamsters v. Bowman Transportation, Inc., 276 Ala. 563, 165 So. 2d 113 (1964); Baggett Transportation Co. v. Local No. 261, United Wholesale & Warehouse Employees Union, 259 Ala. 19, 65 So. 2d 506 (1953) ; Hotel & Restaurant Employees, International Alliance v. Greenwood, 249 Ala. 265, 30 So. 2d 696 (1947); Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). The conduct of picketing, if done in an unlawful manner or for an unlawful purpose, is not beyond the control of a state. Baggett Transportation Co. v. Local No. 261, United Wholesale and Warehouse Employees Union, supra; Hughes v. Superior Court of California, 339 U.S. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1950). If the purpose *475 or object for the picketing, or any of the purposes or objects therefor, is interference with the right of a third party to conduct his business, the picketing is wrongful and may be enjoined. International Brotherhood of Teamsters v. Vogt, Inc., 354 U.S. 284, 77 S. Ct. 1166, 1 L. Ed. 2d 1347 (1957).
In Pennington v. Birmingham Baseball Club, 277 Ala. 336, 170 So. 2d 410 (1964), the court said:
So the bare question in this case narrows to whether or not there was a purpose or objective on the appellants' part to wrongfully interfere with the appellees' business, or was the picketing to publicize the appellants' cause with mere resulting incidental interference to appellees' business? The trial judge's decree, granting the writ of temporary injunction, made no finding of fact from the evidence. But apparently the trial judge found from the evidence that there was wrongful interference by the appellants with the appellees' business, for otherwise, he would not have ordered the writ of temporary injunction to issue.
The appellants contend that their only purpose was to carry out publicity picketing to inform the public and Congress of the plight of the American seamen. The appellee contends that the picketing was done for the purpose of inducing and encouraging the appellee's employees to cease loading the soybeans aboard foreign ships thereby interfering with the business of its member employers.
We must decide whether the trial judge abused his discretion by concluding that there was wrongful interference with the appellee's business, warranting his issuance of the temporary writ. In this situation some well known equitable principles should be kept in mind. Among these, it is to be remembered that, in determining whether or not a temporary injunction should have issued, wide discretion is accorded the trial judge hearing the application and making the decision, and, where no abuse of that discretion is shown, his action will not be disturbed on appeal. Slay v. Hess, 252 Ala. 455, 41 So. 2d 582 (1949); Jones v. Jefferson County, 203 Ala. 137, 82 So. 167 (1919); Holcomb v. Forsyth, 216 Ala. 486, 113 So. 516 (1927); Boatwright v. Town of Leighton, 231 Ala. 607, 166 So. 418 (1936).
In Madison Limestone Co. v. McDonald, 264 Ala. 295, 300, 87 So. 2d 539, 543 (1956), we said this:
And, a sequel to the theories of balancing conveniences between the parties and the discretionary power of the trial judge to maintain the status quo until the final hearing, is the premise that the issue of who will prevail on final hearing is not concluded on a preliminary hearing to determine whether an injunction pendente lite will issue or not. In Hamilton v. City of Anniston, 248 Ala. 396, 401, 27 So. 857, 861 (1946), the court said:
We have no reason to assume otherwise than that the trial judge, in the exercise of the wide discretion accorded him in a matter of this kind, gave close heed to the issues involved, and concluded that while a substantial question remained to be decided, the immediate circumstances obliged him to order the temporary writ. Even so, we must consider the record to determine whether the trial judge abused his discretion in granting the temporary injunction. This necessitates our deciding whether or not there was any evidence to support a conclusion that the picketing had as a purpose or object the wrongful interference with the appellee's business.
During the course of the cross-examination of a witness for appellant unions, the following question and answer colloquy occurred:
"Q What percentage of the vessels that call here at the Port [of Mobile] are of foreign flags?
*477 In 51A C.J.S. Labor Relations § 319, p. 135, we find a statement of law that is material in a decision of this matter. It reads as follows:
The Fifth Circuit Court of Appeals stated in Superior Derrick Corporation v. National Labor Relations Board, 273 F.2d 891, 897 (5th Cir. 1960):
If a purpose or an objective of the picketing was to crowd the Port of Mobile with foreign ships calling there to load and unload cargo, in order to bring pressure on the federal government to do something about the American merchant marine, or, if the picketing was being carried on with the hope or expectation or desire to shut down the whole State Docks, not just the appellee, Mobile Steamship Company, so no one could work, then we think a substantial question would arise as to whether or not another intended purpose of the picketing was interference with appellee's business, which was the loading and unloading of ships. This situation called on the trial judge to exercise his discretion as to whether or not to grant a temporary injunction to maintain the status quo until a full hearing could be had before the court on the merits of the case. In his decision, he did not, in our opinion, abuse his discretion. We find no error in the trial judge's granting the writ of temporary injunction.
The appellants also assign as error the court's overruling their demurrer to the bill of complaint. Essentially the grounds of demurrer raise the same propositions of law to which we have written in this opinion. We see no need of speaking further to these legal issues.
The decree of the court entered by the trial judge in this cause is due to be affirmed.
Affirmed.
COLEMAN, BLOODWORTH, FAULKNER, and JONES, JJ., concur. | May 3, 1973 |
101761d9-cdb5-4077-afcf-14fdf55728c2 | Allen v. State | 276 So. 2d 583 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 583 (1973)
Emory Earl ALLEN
v.
STATE of Alabama.
SC 314.
Supreme Court of Alabama.
April 19, 1973.
*584 David L. Barnett, Mobile, for appellant.
William J. Baxley, Atty. Gen., H. Thomas Armstrong, Sp. Asst. Atty. Gen., Scottsboro, for the State.
FAULKNER, Justice.
Senseless killing of man by man is the bane of this and every era.
Occurring in connection with sports and athletic events, violence has been traditionally more characteristic of Latin America than of the United States of America. While soccer stadium riots and attacks on *585 rival team players are well-known below the Rio Grande, football in this country is marked by better sportsmanship on the part of the losing team and its fans. This case chronicles one of the unfortunate exceptions. Yet in the larger context, of course, the sports event both here and there serves merely as an excuse for the depraved individual to commit his acts of violence. An unthinking rage, a whir of momentary madness, a pull of the triggerand the life of a young man is gone forever.
Emory Earl Allen was convicted of murdering Aaron Gastinell. He appeals.
On the evening of September 17, 1971, Coach Turner C. Thomas led his Landry High School (New Orleans) squad into Prichard Stadium for a football game with Blount High of Prichard, Alabama. The visitors proved the stronger team, defeating and shutting out Blount by the score of 14 to 0.
Following the game, the Landry bus was pulled up in front of the high school. Not far away, Emory Earl Allen was saying:
A friend of Allen's explained to the trial court:
"A. He aimed the gun and shot.
"Q. All right. In which direction did he shoot?
"A. Toward the bus."
At this moment, near the bus, Coach Thomas of Landry High was talking with his assistant coach, Mr. Vavasseur, and the assistant principal of Blount, Mr. Washington, about taking the team to a restaurant for a post-game meal. Thomas testified:
Gastinell was dead. Other Landry players were seriously wounded. Mr. Washington, the Blount assistant principal, was also hit.
On the strength of this and other uncontroverted testimony, the jury found Emory Earl Allen guilty of second-degree murder and imposed a sentence of life imprisonment.
Four alleged errors are complained of on this appeal, which was transferred to this Court from the Court of Criminal Appeals: (1) that the trial judge showed bias and prejudice against the defendant through non-verbal facial expressions and gesticulations; (2) that similar evidence given by many witnesses, including other wounded ballplayers, was improper cumulative testimony; (3) that the State impeached one of its own witnesses by use of a prior inconsistent statement; and (4) that the evidence against the defendant *586 consisted solely of uncorroborated accomplice testimony.
Appellant strenuously complains of facial expressions and hand movements by the trial judge which are said to have displayed bias against him. The following exchanges took place between counsel and the court:
Appellant asserts that this led to the situation that "the jury was informed most emphatically through his conduct that the Judge was not impartial and had made up his mind to communicate to the jury his feelings about the case in a non-verbal manner."
The trial judge is a human being, not an automaton or a robot. He is not required to be a Great Stone Face which shows no reaction to anything that happens in his courtroom. Testimony that is amusing may draw a smile or a laugh, shocking or distasteful evidence may cause a frown or scowl, without reversible error being committed thereby. We have not, and hopefully never will reach the stage in Alabama at which a stone-cold computer is draped in a black robe, set up behind the bench, and plugged in to begin service as Circuit Judge.
Nevertheless, the trial judge does have a duty to be "thorough, courteous, patient, punctual, just, impartial." American Bar Association, Canons of Judicial Ethics, Canon 34. This duty of impartiality extends to demeanor. We have little doubt that facial expressions, gestures, and nonverbal communications which tended to ridicule defendant and his counsel, could, standing alone, operate so as to destroy the fairness of a trial.
However, we do not think enough has been shown here to establish that the substantial rights of the defendant were injuriously affected by the alleged irregularities. Title 7, Supreme Court Rule 45, Code of Alabama 1940, Recompiled 1958. No unfairness is found in the actual rulings by the court throughout the case, nor did he make any biased comments. Although we appreciate defense counsel's efforts to make a record on this issue, we would require a more detailed description in the record of the alleged gestures, facial expressions, and hand movements involved, and the points during the trial at which they were made, before predicating reversible error on them alone. From the skimpy record before us we cannot presume reversible error on this issue.
Often in a criminal case, defendant's plaint is that the evidence against him is too little; here, we have the interesting argument that the amount of evidence is too great. Appellant complains of the large number of witnesses permitted to testify to essentially the same events, namely defendant's cursing and pulling the trigger, and the victims being hit. Admission of cumulative testimony is within the sound discretion of the trial judge. Even though such evidence may tend to inflame the jury, its admissibility will not be affected if it sheds light upon a material inquiry or illustrates the transaction at issue. Reedy v. State, 246 Ala. 363, 20 So. 2d 528 *587 (1945). The trial judge did not abuse his discretion by permitting it here.
At one point during the trial, one of the many prosecution witnesses did not remember the defendant's threatening to shoot at the bus. The District Attorney attempted to remind the witness that he had earlier made a written statement to that effect. Appellant complains that this was impeachment of the prosecution's own witness, and constituted reversible error. We have held on numerous occasions that a party may refresh the memory of his witness with prior statements made. Willingham v. State, 261 Ala. 454, 74 So. 2d 241 (1954); Glenn v. State, 157 Ala. 12, 47 So. 1034 (1908); Hemingway v. Garth, 51 Ala. 530 (1874).
Appellant complains that his conviction was obtained through the use of uncorroborated accomplice testimony, in violation of Title 15, § 307, of our Code.
The test of whether a witness is an accomplice is whether he or she could be indicted and convicted for the crime. Miller v. State, 290 Ala. 248, 275 So. 2d 675 (1973); Dykes v. State, 30 Ala.App. 129, 1 So. 2d 754 (1941). Although the witnesses were standing around in the vicinity when Allen suddenly opened fire on the visiting football team, nothing in the record indicates that they themselves fired, cooperated with Allen in any way, or could have been indicted or convicted for murder themselves. Thus, their testimony was sufficient to support the conviction.
We have carefully reviewed the record in search of error. None appearing, the judgment and sentence must be and are affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL and HARWOOD, JJ., concur.
MADDOX, J., concurs in the result. | April 19, 1973 |
36d79f72-6dc9-40b7-b4a3-e43fc57c8568 | Shannon v. Hollingsworth | 279 So. 2d 428 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 428 (1973)
Thomas Lee SHANNON
v.
Peggy Joy HOLLINGSWORTH.
SC 11.
Supreme Court of Alabama.
June 7, 1973.
*429 Hogan & Smith, Birmingham, for appellant.
Dunn, Porterfield, McDowell & Scholl, Birmingham, for appellee.
HEFLIN, Chief Justice.
This is an appeal from the Circuit Court of Jefferson County, Alabama, wherein a complaint was filed by Thomas Lee Shannon, who had been injured in an automobile collision, against Peggy Joy *430 Hollingsworth and Daniel Albert Jones. An amended complaint was later filed, striking Daniel Albert Jones as a party defendant.
The appellant-plaintiff, Thomas Lee Shannon, was a passenger in, but not the owner of, an automobile being driven by Daniel Albert Jones, and they were on the way to a dance at Oporto Armory at the time of the accident. They had gone by the home of Roger McAllister, a friend of appellant-plaintiff, at the latter's request and the driver, Daniel Albert Jones, was following the directions of appellant-plaintiff Shannon as to how to get to McAllister's home. They left to go to Oporto Armory. Because Daniel Albert Jones was not familiar with the area, he continued to follow the directions of the appellant-plaintiff Shannon.
In a residential section of the City of Birmingham, at the intersection of 5th Avenue North and 79th Street, North, which contains no traffic control device whatsoever, the automobile in which the appellant-plaintiff was riding collided with an automobile driven by the appellee-defendant, Peggy Joy Hollingsworth. Miss Hollingsworth (who had married George William Knotts between the date of the accident and the date of the trial and was known as Mrs. Knotts at the trial) who was traveling east on 5th Avenue, testified she was aware of headlights of the Jones automobile 75 to 100 feet from the intersection. However, she stated, "The next time I noticed that Jones auto was when it was just right in my face"; that she did not apply the brakes or have time to apply her brakes before the accident occurred. Jones was traveling south on 79th Street and skidmarks evidenced the application of his brakes. The jury found for the defendant Hollingsworth and the lower court ordered that the appellant-plaintiff Shannon was not entitled to a recovery. It is from this judgment that appeal was taken.
The appellant's-plaintiff's first contention is presented by his assignments of error numbers 1, 3, 5 and 6, whereby he argues that the lower court erred in charging the jury as follows:
Appellant-plaintiff Shannon argues that the submission to the jury of the issue of appellant's-plaintiff's control or right to control the operation of the automobile was error in that there was no evidence from which a jury could find that the appellant-plaintiff had exercised or had a right to exercise such control. It is not disputed that "in order to create the imputation of negligence of the driver to the passenger, the passenger must have assumed control and direction of the vehicle or must have some right to a voice in the control, management or direction of the vehicle". Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702 (1951). The issue thus presented is whether there was any evidence from which the jury could have concluded *431 that the appellant-plaintiff Shannon had exercised or had a right to exercise such control. There was no evidence from which it could be inferred that Shannon had the right to exercise such control from ownership or otherwise. The testimony of Daniel Albert Jones relative to the exercise of control and direction by Shannon was as follows:
The testimony of the appellant-plaintiff also shed light on the issue whether the appellant-plaintiff exercised any control over the operation of the Jones vehicle:
This evidence clearly shows that the appellant-plaintiff did have a voice as to the route which the driver followed, however, there is absolutely no evidence from which the jury would have found that the appellant-plaintiff had any control over the speed at which the automobile was traveling, the yielding or failure to yield the right of way at intersections, or any other of the elements which contribute to the manner in which the automobile proceeded along the route he selected. It should be noted that the word "direction" referred to in the above quote from Johnson does not signify the line or course upon which anything is moving, but rather guidance or management. The control exercised by the passenger must be over some element contributing to the operation of the automobile which bears a direct relationship to the cause of the accident. It would certainly be improper to maintain that a passenger who had assumed the control of the regulation of the car's air conditioner was chargeable with the driver's negligence in an accident caused by the latter's excessive speed. It is no less improper to charge a passenger with the negligent manner in which the driver operates an automobile over a route selected by such passenger when the passenger has assumed only the direction of the route. A navigator of an airplane is not responsible for a pilot making a faulty landing.
The appellant-plaintiff Shannon in the instant case had assumed control over *433 only the route followed by the driver, and this court has been unable to find any evidence in the record from which the jury could have found any causal connection between the route followed and the cause of the accident and injuries. For this reason the control exercised by appellant-plaintiff was not of such a nature as to authorize the imputation of the driver's negligence to the passenger-appellant-plaintiff Shannon under the factual setting of this case.
Appellant-plaintiff next contends that the lower court erred in that portion of its oral charge in which it submitted to the jury the question of contributory negligence on the part of the passenger, appellant-plaintiff. The law in Alabama relative to the contributory negligence of a passenger-plaintiff was stated in King v. Brindley, 255 Ala. 425, 51 So. 2d 870 (1951) as follows:
The appellant-plaintiff, while recognizing the above statement of law as valid, bases his argument on the premise that there was no evidence upon which the jury could have found that the appellant-plaintiff was contributorily negligent, and, hence, submitting the question to the jury, via the lower court's oral charge, was error. The uncontradicted testimony of the appellant-plaintiff, Thomas Lee Shannon, was that the nearest thing he could remember was approximately a block before the accident, at which point in time, as far as the record reveals, no circumstances had revealed themselves which would have or should have suggested to a reasonable person that the vehicle was entering or about to enter a sphere of danger. This being so, no duty ever arose, on the part of appellant-plaintiff, to give any warning, protest or action as to the impending danger. Thus, the lower court did err in submitting the question of the appellant's-plaintiff's
*434 contributory negligence to the jury.
There can be no doubt that it is error to hypothetically instruct a jury on a state of facts when there is no evidence to establish them. Bailey v. Tennessee Coal, Iron and Railroad Company, 261 Ala. 526, 75 So. 2d 117. However, the fact that a given charge is abstract is not available as reversible error unless it affirmatively appears from the record that the charge worked injury to the complaining party; such party's remedy being to request an explanatory charge. Bailey v. Tennessee Coal, Iron and Railroad Company, supra; Jones v. Williams, 108 Ala. 282, 19 So. 317. However, in this instance the court is of the opinion that explanatory charges could not have eradicated the injury which resulted to Shannon from these erroneous instructions. Therefore this cause is reversed and remanded.
Reversed and remanded.
MERRILL, HARWOOD, MADDOX and FAULKNER, JJ., concur. | June 7, 1973 |
0ad5d530-f5de-409e-aae5-ebe900fa30b6 | Smith v. Dillard | 278 So. 2d 358 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 358 (1973)
Derrill V. SMITH
v.
Sydney K. DILLARD.
SC 107.
Supreme Court of Alabama.
May 10, 1973.
Rehearing Denied June 7, 1973.
Zeanah, Donald & Lee and Wilbor J. Hust, Jr., Tuscaloosa, for appellant.
deGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for appellee.
MERRILL, Justice.
This appeal is from a decree establishing a boundary line between the parties and vesting title in the ownership of the disputed property, .26 of an acre in the complainant-appellee.
This is one of those unfortunate instances where ill feeling between the parties has caused extensive litigation over approximately one-fourth of an acre which, under the undisputed testimony, was "low, wet, overgrown and snaky." Many witnesses testified and the record here is a two-volume transcript.
The disputed strip is in the NW corner of the SW ¼ of NW ¼ of Section 17, west of the Shirley Bridge Road, north of Poole Branch and contains .26 acres.
*359 Conceding that this map is not drawn to scale, we insert it to help clarify the situation:
Appellee Dillard owned the SE ¼ of NE ¼ of Section 18 and a strip off the west side of the SW ¼ of the NW ¼ west of the public road in Section 17, Township 20, Range 11, containing 5 acres more or less, being the same land conveyed to J. W. Sartain by W. W. Sartain and wife by recorded deed in their chain of title. Appellee contends that the disputed strip is the north end of this description while appellant contends that appellee owns land north of Poole Branch in Section 17.
Appellant purchased the M. E. Vaughn homeplace from H. V. Smith (his father) in 1948 and the description in his deed reads:
It will be noted that the deed does not mention any land in the SW ¼ of NW ¼ of Section 17 and even though appellant built his house on that forty in 1948, the only paper title appellant has is that it was part of the "old home site of Mrs. M. E. Vaughn." There is no contest in this case of appellant's ownership of the land where his house is located. It is undisputed that the H. V. Smith home place is south of Poole Branch and the M. E. Vaughn land is north of the branch where it adjoined the H. V. Smith home place.
The trial court wrote a full and comprehensive opinion, tracing the title of each of the parties, making several findings and decreed that the appellee was the owner in fee simple of the .26 acres, and that the true and correct boundary line was as follows:
Appellee's father had owned the Dillard property before he sold to appellee, and his father lived there for over twenty years. He purchased the land from his father in April, 1970, and shortly thereafter, appellant's wife told him that the contested strip was Smith land. He then employed E. L. Hendrix, a surveyor, to run his lines, and while they were running the lines, appellant came down, cursed him, ordered him off the property and, according to appellee, appellant said, "I'll kill you if you don't get off." Appellant later testified that he was mad "and I did threaten him."
*360 We quote some of the findings of the trial court:
"The Court further finds that the property heretofore described as having been purchased by the Complainant, Sydney K. Dillard, from his father, O. D. Dillard, was purchased by the said O. D. Dillard from one Walter B. Spencer and wife, Janie Guy, by Deed dated February 15, 1941, and recorded in said Probate Office in Deed Book 224, Page 267. The said Walter B. Spencer, also known as Walter Burris Spencer, was a witness at the trial of this case and testified on behalf of Complainant, Sydney K. Dillard.
"The Court also finds that the said Walter B. Spencer purchased all of said property conveyed to said O. D. Dillard, along with other property, from Mrs. Mary H. J. Ward, by deed dated January 11, 1937, and recorded in said Probate Office in Deed Book 178, Page 505, and went into possession shortly thereafter, and while in possession and before conveying the property described in the deed to said O. D. Dillard dated February 15, 1941, he had one Scott Eads, a surveyor of Tuscaloosa County, Alabama, to run the lines on his property and set and mark the corners, including the corners of the property that he later sold to said O. D. Dillard, and that he pointed out these corners to O. D. Dillard, including the Northwest corner and also the Northeast corner, both being marked by an iron pipe, of the Parcel in Controversy; and the Court further finds that the Northwest corner of this Parcel in Controversy (containing 0.26 of an acre), was the Northwest corner of the Southwest Quarter of the Northwest Quarter of said Section 17, and the Northeast corner of the said Parcel in Controversy was located where the North boundary line of said Southwest Quarter of the Northwest Quarter of said Section 17 intersected the west margin of the Shirley's Bridge Road; that witness Spencer and said O. D. Dillard walked over this property and these particular corners were pointed out to Mr. O. D. Dillard when he purchased the property above mentioned from said Spencer; that the said Walter B. Spencer was in actual possession of all the property he sold to said O. D. Dillard in said deed of February 15, 1941, including the property lying west of Shirley's Bridge Road and north of Poole's Branch to the North Quarter Section line of said Southwest Quarter of the Northwest Quarter of said Section 17.
"The Court further finds that said corners and markers as set by said surveyor, Scott Eads, and as shown by the said Walter B. Spencer to said O. D. Dillard, were later located and confirmed by a survey made and prepared by witness, E. L. Hendrix, a qualified and duly registered surveyor in Tuscaloosa County, Alabama, dated September 29, 1970, said survey having been offered in evidence by Complainant and admitted as Complainant's Exhibit 13, and this survey showed that the said `strip off of the west side of the Southwest Quarter of the Northwest Quarter of Section 17 west of the public road containing 5 acres, more or less', actually contains approximately two and one-half (2½) acres, and also that the Parcel in Controversy is bounded on the East by the Shirley's Bridge Road, on the North by the North boundary line of said Southwest Quarter of the Northwest Quarter of said Section 17, on the West by the West boundary of said Southwest Quarter of the Northwest Quarter of said Section 17, and on the South by Poole's Branch.
"The Court further finds that Complainant, Sydney K. Dillard, and his predecessors in title through Walter B. Spencer, have been in possession of all of the property described in said deed of Walter B. Spencer to O. D. Dillard, dated February 15, 1941, continuously and claiming same as their own, and during all of this time the taxes on the property which said O. D. Dillard acquired from Walter B. Spencer, and Complainant acquired from his father, said O. D. Dillard, including the Parcel in Controversy, have been assessed and paid *361 by them, and they have possessed and claimed to own all the same, including the Parcel in Controversy, during all of this time.
"The Court further finds that the said H. V. Smith and his son, Derrill V. Smith through his deed from his father, dated June 14, 1948, occupied and claimed that portion of the Southwest Quarter of the Northwest Quarter of Section 17, Township 20, Range 11 West, North of Poole Branch and East of the Shirley Bridge Road, which was then and for many years prior thereto in existence and a much traveled public road.
"The Court also finds that Respondent constructed a house, which was his home, on this portion of the Southwest Quarter of the Northwest Quarter of said Section 17 North of Poole Branch, and East of the public road (Shirley Bridge Road), but that Respondent has never assessed or paid any taxes on any portion of the Southwest Quarter of the Northwest Quarter of said Section 17, Township 20, Range 11 West, though in 1959 and subsequent years Respondent has assessed the Northwest Quarter of the Northwest Quarter of said Section 17, and has also assessed a four room frame house, and he has never to this date assessed any portion of the Southwest Quarter of the Northwest Quarter of Section 17. However, the Court is of the opinion and finds that he has claimed to own and occupied that portion of said Southwest Quarter of the Northwest Quarter of said Section 17 North of Poole Branch and East of the Shirley Bridge Road, and has his home built thereon; but that he has never occupied that portion of said Southwest Quarter of the Northwest Quarter of Section 17 North of Poole Branch and West of Shirley Bridge Road, being the 0.26 acre in controversy."
We note again that appellant's deed, and the deed to his father, referred to the old home site of Mrs. M. E. Vaughn as "being the place adjoining the home place of H. V. Smith where he now resides." It is undisputed that the H. V. Smith property in its entirety is east of the Shirley Bridge Road and it does not adjoin the Vaughn property anywhere on the west side of the road. But it is agreed by all that all the disputed property lies west of the road and no part of it adjoins the H. V. Smith land.
The evidence is undisputed that the Dillards have assessed the disputed property and paid taxes on it since appellee's father purchased the property in 1941. There was no evidence that appellant had paid any taxes on this property. Appellant also testified that although he purchased the Vaughn place from his parents in 1948, he did not record his deed until 1958.
The evidence as to possession of the disputed.26 acres was hopelessly in conflict. Each party adduced evidence as to some possessory acts. We do not attempt to weigh the evidence; that was done by the trial court.
What this court said in Jones v. Wise, 282 Ala. 707, 213 So. 2d 914, is applicable here:
See also Kittrell v. Scarborough, 287 Ala. 155, 249 So. 2d 814, and Morris v. Morris, 290 Ala. 41, 273 So. 2d 203.
*362 There was sufficient evidence before the trial court to sustain the decree. This disposes of all argued assignments of error except assignment 4.
Assignment of error 4 charges that the court erred in sustaining an objection to a question propounded to appellant's witness, Redd, which was: "And both of them told you that that was the line?"
To furnish some background, we copy the following from the record:
The "both of them" in the question and the "they" in the answer immediately preceding the question refers to H. V. Smith, the father of appellant, and O. D. Dillard, the father of appellee. Both H. V. Smith and O. D. Dillard were deceased at the time of the trial.
The exclusion of a question seeking mere repetition of facts already stated by the witness is not error. Killian v. Everett, 262 Ala. 434, 79 So. 2d 17, 19A Ala. Dig., Witnesses.
It is noted that the witness had already testified that "they said that was the line." Moreover, on cross-examination of the same witness, he testified:
Assuming without deciding that the trial court erred in sustaining the objection, it is harmless error for the trial court to exclude evidence where such evidence was admitted at another time and in another forum. Decker v. Hays, 282 Ala. 93, 209 So. 2d 378; Stewart v. Weaver, 264 Ala. 286, 87 So. 2d 548, 2A Ala.Dig., Appeal & Error,
A trial court will not be put in error for sustaining an objection to an objectionable question even though a proper objection was not stated. Houston v. Town of Waverly, 225 Ala. 98, 142 So. 80; Lemons v. Allison, 265 Ala. 347, 91 So. 2d 236.
The question to which objection was made was clearly repetitious, and in its form was leading and suggestive.
Where the question to which objection was sustained was a leading question, and though the adverse party did not object on that ground, this court would not put the trial court in error in sustaining the objection. Lemons v. Allison, 265 Ala. 347, 91 So. 2d 236; Campbell v. Laningham, 274 Ala. 138, 145 So. 2d 824.
No reversible error on the part of the trial court has been presented.
Affirmed.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | May 10, 1973 |
eee01feb-0c81-4337-9746-e69afe901f88 | Mitchell v. State | 277 So. 2d 404 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 404 (1973)
In re Milton MITCHELL, Jr., alias,
v.
STATE.
Ex parte Milton Mitchell, Jr., alias Buck.
SC 282.
Supreme Court of Alabama.
May 3, 1973.
Delano J. Palughi and Peter J. Palughi, Mobile, for petitioner.
No brief for the State.
McCALL, Justice.
Petition for Milton Mitchell, Jr., alias Buck, for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mitchell, alias v. State, 50 Ala.App. 121, 277 So. 2d 395.
Writ denied.
COLEMAN, BLOODWORTH, FAULKNER and JONES, JJ., concur. | May 3, 1973 |
fb83b9a9-5544-4e60-a266-392e8d00d000 | McKinney v. State | 278 So. 2d 724 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 724 (1973)
In re William Henry McKINNEY
v.
STATE.
Ex parte William Henry McKinney.
SC 396.
Supreme Court of Alabama.
May 24, 1973.
J. Louis Wilkinson and Charles Crowder, Birmingham, for petitioner.
No brief for the State.
BLOODWORTH, Judge.
Petition of William Henry McKinney for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McKinney v. State, 50 Ala.App. 271, 278 So. 2d 719.
Writ denied.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | May 24, 1973 |
67251468-46be-4025-a4d0-06b5d01fae5e | Willingham v. State | 279 So. 2d 538 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 538 (1973)
In re Carl Edward WILLINGHAM
v.
STATE. Ex parte Carl Edward Willingham.
SC 421.
Supreme Court of Alabama.
June 21, 1973.
William H. Rogers, Moulton, for petitioner.
No brief for the State.
*539 MERRILL, Justice.
Petition of Carl Edward Willingham for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision in Willingham v. State, 50 Ala.App. 363, 279 So. 2d 534.
Writ denied.
HEFLIN, C. J., and COLEMAN, HARWOOD and FAULKNER, JJ., concur. | June 21, 1973 |
ba5cce20-7dff-4298-a82b-09da5dcf5878 | Scopolites v. State | 277 So. 2d 395 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 395 (1973)
In re James M. SCOPOLITES
v.
STATE.
Ex parte James M. Scopolites.
SC 342.
Supreme Court of Alabama.
May 3, 1973.
David L. Barnett, Mobile, for petitioner.
No brief for respondent, the State.
BLOODWORTH, Justice.
Petition of James M. Scopolites for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Scopolites v. State, 50 Ala. App. 115, 277 So. 2d 389.
Writ denied.
COLEMAN, McCALL, FAULKNER and JONES, JJ., concur. | May 3, 1973 |
465dd52f-9960-4b91-8941-c67177f8014f | Wallace v. State | 275 So. 2d 634 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 634 (1973)
Kenneth WALLACE
v.
STATE of Alabama.
SC 262.
Supreme Court of Alabama.
April 5, 1973.
*635 C. Delaine Mountain, Tuscaloosa, for appellant.
William J. Baxley, Atty. Gen. and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
PER CURIAM.
This case was transferred from the Court of Criminal Appeals to the Supreme Court of Alabama on February 8, 1973, in compliance with the provisions of Section 1 of Act 74, approved December 22, 1971, 1971 Acts of Alabama, 3rd Special Session, page 4282. See Cumulative Pocket Part to Volume 4 of the 1958 Recompiled Code where the provisions of Section 1 of Act 74, supra, are carried as Section 111(11a), Title 13.
Appellant was indicted for and convicted of committing the offense of robbery. He was sentenced to imprisonment in the penitentiary of this state for a period of ten years.
On November 15, 1971, Mrs. Debbie Singley was an employee of W. Pate Waldrup, a photographer, who maintained a studio at 583-17th Street in Tuscaloosa, Alabama. Waldrup lived in Birmingham, and Mrs. Singley was in charge of his Tuscaloosa studio.
The evidence shows that at about 4:45 o'clock on the afternoon of November 15, 1971, three young colored males entered the studio. They asked for a job and were advised by Mrs. Singley, in effect, that she was not sure that they could obtain employment at the studio. Shortly thereafter, one of the young men drew a gun. Mrs. Singley was thrown to the floor. She was blindfolded. Her hands were tied behind her back, and her legs were bound. Telephone wires in the studio were cut by the intruders.
Mrs. Singley's glasses, billfold and its contents, $10.00 and keys, were taken as were cash and checks totaling $190.00 which belonged to W. Pate Waldrup.
*636 The main insistence for reversal is that the trial court erred in admitting the alleged confession in evidence in that there was not "an adequate showing on the part of the State that the confession was voluntarily given."
The settled rule of this Court is that all extrajudicial confessions are presumed to be involuntary and, therefore, are prima facie inadmissible with the onus resting on the prosecution to repel the imputation of undue influence unless the attending circumstances affirmatively disclose the voluntariness of the confession. Any inducement of profit or benefit held out; any hope engineered or encouraged that the prisoner's case will be lightened, meliorated, or more favorably dealt with if he will confess; either of these is enough to exclude the confession thereby superinduced. Any words spoken in the hearing of the prisoner which may, in their nature, generate fear or hope render it not only proper but necessary that a confession made within a reasonable time afterwards shall be excluded, unless it is shown by clear and full proof that the confession was voluntarily made after all trace of hope or fear had been fully withdrawn or explained away and the mind of the prisoner made as free from fear, intimidation or hope for reward as if no attempt had ever been made to obtain such a confession. The true test is whether, under all the surrounding circumstances, a confession has been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor. If so, whether true or false, such a confession must be excluded from the consideration of the jury as having been procured by undue influence. The duty rests in the first instance on the trial judge to determine whether or not a confession is voluntary. Womack v. State, 281 Ala. 499, 205 So. 2d 579; Harris v. State, 280 Ala. 468, 195 So. 2d 521; Bush v. State, 282 Ala. 134, 209 So. 2d 416; Beecher v. State, 288 Ala. 1, 256 So. 2d 154; Duncan v. State, 278 Ala. 145, 176 So. 2d 840; Edwardson v. State, 255 Ala. 246, 51 So. 2d 233; Stewart v. State, 231 Ala. 594, 165 So. 840.
At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent; that anything he said can be used against him in court; that he has the right to have counsel present at the interrogation; that if he is indigent and cannot afford to pay a lawyer the court will appoint a lawyer to represent him during the interrogation. Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. See Washington v. State, 287 Ala. 289, 251 So. 2d 592.
Whenever a motion is made for the question of the voluntariness of the confession to be determined outside of the presence of the jury, the motion should be granted by the trial court. In such a hearing the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. At such a hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant will not waive his right to decline to take the stand in his own defense on the trial in chief nor will he waive any of the other rights stemming from his choice not to testify. If the confession is held voluntary by the trial court and admitted in evidence, the jury shall consider all the facts and circumstances surrounding the taking of the confession in determining the weight or credibility which it will give the confession. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908; Sims v. Georgia, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593; Duncan v. State, supra; Rudolph v. Holman (D.C.), 236 F. Supp. 62; Taylor v. State, 42 Ala.App. 634, 174 So. 2d 795; Bennett v. State, 46 Ala.App. 535, 245 So. 2d 570.
*637 At the request of appellant, Detective South was examined outside the presence of the jury in regard to the events which led up to the making of the confession. Jackson v. Denno, supra; Duncan v. State, supra; Bennett v. State, supra.
South testified that the Miranda warnings were given at the very outset of the interrogation and that appellant was then advised that he was a suspect "along with Charlie McClyde, Jr., and Larry Wilder in robbing Waldrup Studio located at 583-17th Street back on 11/15/71."
South stated categorically that neither he nor anyone in his presence made any promise to appellant regarding his confession. He was not threatened nor told it would be better or worse for him to confess. He was not offered a reward or hope of reward or coerced in any way to get him to confess.
But despite those categorical statements, the record shows that during his examination outside the presence of the jury, South was asked the following questions and gave the following answers:
* * * * * *
At this point counsel for appellant moved to exclude the confession referred to as "the statement" on the ground that: "The mere reference to discussing his cooperation or noncooperation with a probation officer is a promise of a reward."
Counsel for appellant elected not to elicit testimony from appellant at the hearing held outside the presence of the jury. In fact, no one was questioned on that occasion other than South.
We think it was adequately shown by South's uncontradicted testimony that the Miranda warnings were given to appellant; that he understood them and made an intelligent waiver of his right to have counsel present at the interrogation.
We cannot say that South's testimony at the hearing outside the presence of the jury demonstrated that the attending circumstances affirmatively disclose the voluntariness of the confession. See Bush v. State, supra.
*638 So the burden was on the State to show the voluntariness of the confession. The appellant insists that South's testimony last quoted above in answer to the quoted questions shows that the confession was not voluntarily given but resulted from a promise of reward made by South to the appellant. We disagree.
South did not deny that he made the statements of which complaint is made to the appellant during the course of the interrogation. He testified, in effect, that "as a policy" he usually makes such a statement to a suspect and that it is possible that he did so during the course of the interrogation of appellant. We think, therefore, that the burden being on the State to show the voluntariness of the confession that we should assume that the statement was made by South during the interrogation which resulted in the confession. See Womack v. State, 281 Ala. 499, 205 So. 2d 579.
But we do not believe that the statement made by South to appellant in regard to the probation officer was sufficient standing alone to render appellant's in-custody confession involuntary.
The statement was neither an express nor implied promise of reward if appellant admitted his guilt. As we view South's remarks presently under consideration, they could convey only the idea that, if appellant made a statement and he was convicted, if the probation officer made inquiries of the interrogators as to whether they thought appellant's statement was true, they would express that opinion. In other words, South's remarks were no stronger than to convey the idea to appellant that it would be best or better to tell the truth if he made a statement. A promise or inducement cannot be implied from such an exhortation. King v. State, 40 Ala. 314; Aaron v. State, 37 Ala. 106; Kelly v. State, 72 Ala. 244; Edwardson v. State, supra.
We have not been cited to an Alabama case factually in point nor has our research disclosed such a case. Appellant relies upon Womack v. State, supra, but in that case the statement which the sheriff said he "could have made" to the prisoner was: "It would go lighter on me if I did talk." We do not think South's remarks here under consideration are subject to the vice of the admonition given by the sheriff to the prisoner in Womack, supra.
If South's remarks be construed, as did counsel for appellant at the trial below, as conveying the idea that if appellant made a statement South would advise the probation officer of appellant's cooperation, such remarks, standing alone, would not justify a holding that appellant's in-custody confession was involuntary. In United States v. Frazier, 434 F.2d 994 (5th Cir. 1970) it is said:
See holdings similar to that in the Frazier case, supra, found in United States v. Glasgow, 451 F.2d 557 (9th Cir. 1971); United States v. Springer, 460 F.2d 1344 (7th Cir. 1972).
We hold that the trial court did not err in refusing to hold at the conclusion of the hearing conducted outside the presence of the jury that the confession was involuntarily obtained nor in overruling appellant's objection to the introduction of the confession during the course of the trial.
The foregoing disposes of the only argument advanced for reversal in the brief filed here on behalf of appellant.
*639 It is our duty, however, in this criminal case to consider all questions apparent on the record or reserved by the transcript of the testimony. Section 389, Title 15, Code of 1940; Elliott v. State, 283 Ala. 67, 214 So. 2d 420.
During the course of the trial before the jury, the court on several occasions sustained objections interposed by counsel for the State to questions propounded to witnesses by counsel for the appellant. Several of these rulings occurred during the course of the cross-examination of South by counsel for appellant and others occurred during the direct examination of the appellant.
In our opinion it would serve no useful purpose to deal with these rulings separately. The objections were properly sustained for the reason that the questions were too general, or called for purely speculative answers, or sought to elicit from the witness an uncommunicated intent of another, or inquired of the witness as to his own intent, motive, reason, belief, or the like. Shadle v. State, 280 Ala. 379, 194 So. 2d 538; Alabama Great Southern R. Co. v. Yount, 165 Ala. 537, 51 So. 737; Floyd v. Pugh, 201 Ala. 29, 77 So. 323.
The trial court refused to give at the request of the defendant below, the appellant here, the following written charges:
While these charges fail to define the offense and are not based on a consideration of the evidence, nevertheless, in view of the way similar charges have been treated in the past, we are not disposed to hold that they are in improper form. Kelly v. State, 235 Ala. 5, 176 So. 807; Harris v. State, 44 Ala.App. 654, 219 So. 2d 410; Lami v. State, 43 Ala.App. 108, 180 So. 2d 279, cert. denied, 278 Ala. 710, 180 So. 2d 282; Howard v. State, 41 Ala.App. 360, 132 So. 2d 384; Stovall v. State, 34 Ala. App. 610, 42 So. 2d 636, cert. denied, 252 Ala. 670, 42 So. 2d 639; Duncan v. State, 30 Ala.App. 356, 6 So. 2d 450, cert. denied, 242 Ala. 329, 6 So. 2d 454.
It has been held by this Court and by the Court of Appeals that under an indictment for robbery, a conviction may be had for assault and battery and larceny as well as for certain other offenses. Kelly v. State, supra; Rambo v. State, 134 Ala. 71, 32 So. 650; Autrey v. State, 15 Ala.App. 574, 74 So. 397; Robertson v. State, 24 Ala.App. 237, 133 So. 742; Harris v. State, 44 Ala. App. 654, 219 So. 2d 410.
But it is not error to refuse to charge the jury at the request of a defendant on the law of assault and battery, larceny, and other lesser offenses when the indictment charges robbery and the evidence is such that defendant is guilty of robbery or nothing. Segers v. State, 283 Ala. 682, 220 So. 2d 848; Cooper v. State, 277 Ala. 200, 168 So. 2d 231; Kelly v. State, supra; Harris v. State, supra; Bowman v. State, 44 Ala.App. 331, 208 So. 2d 241; Riddle v. State, 41 Ala.App. 544, 139 So. 2d 347; See Green v. State, 271 Ala. 106, 122 So. 2d 520.
Under the evidence presented in this record, if any offense was committed, it was robbery, consequently under the authorities cited above, the trial court did not commit reversible error in refusing to give the defendant's requested written charges numbered 1 and 2. The defendant testified to the effect that he was at his home at the time the offense was committed and took no part therein. Mrs. Singley's testimony as to what occurred in Waldrup's studio on the afternoon of November 15, 1971, is undisputed and supports a conviction for robbery and for no other offense.
Mindful of our duty under Section 389, Title 15, Code, we have examined the record for any reversible error, whether pressed upon our attention or not. We *640 find no reversible error in the record and the judgment of the trial court is due to be affirmed. It is so ordered.
The foregoing opinion was prepared by Thomas S. Lawson, Supernumerary Associate Justice, and adopted by the Court as its opinion.
Affirmed.
MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL and FAULKNER, JJ., concur.
HEFLIN, C. J., and JONES, J., dissent.
JONES, Justice (dissenting).
I respectfully dissent.
I would hold that the statement made by South to appellant in regard to the probation officer was sufficient to render appellant's in-custody confession involuntary.
If we construe South's reference to the probation officer as harmless, are we not approving of his routine interrogation practice of inferring to the prisoner that his confession will be communicated to the probation officer. The "if the probation officer asks" condition implied not only that the probation officer in fact will ask, but also that his confession, or lack of one, will influence the probation officer's action toward the defendant.
Appellant relies upon Womack v. State, supra. In that case the statement which the sheriff said he "could have made" to the prisoner was: "It would go light on me if I did talk." I think South's remarks here under consideration are subject to the same vice of the admonition given by the sheriff to the prisoner in Womack, supra.
The same purport and intent of the statement of the sheriff in Womack, supra, can be imparted to South's reference to the probation officer in the instant case. Indeed, on a relative scale, the prohibited statement in Womack may be classified as an innocent truism, making no reference to any person whose official position alone would infer special consideration; while here the interrogator's reference to the probation officer infers not only a possibility of probation, if convicted, but that the defendant's chances of receiving probation are at least in some measure dependent upon his confession. The strength of the inducement is made clear when we recognize the unmistakable inference in South's statement ". . . if we felt like he told us the truth . . ." The prisoner may have been young, frightened, and uneducated, but he would have had no difficulty in realizing that "the truth" to Officer South meant nothing short of a full confession. This, coupled with a holding out of even the remotest chance that such confession would be looked upon with favor by the probation officer, was violative of the defendant's constitutionally guaranteed right against self incrimination; consequently, I would hold that the admission of the confession induced thereby was error, and that the conviction is due to be reversed.
HEFLIN, C. J., concurs. | April 5, 1973 |
1038ba1b-cf5d-40b7-9dee-7513026f1eec | Dunaway v. State | 278 So. 2d 205 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 205 (1973)
In re James E. DUNAWAY
v.
STATE of Alabama.
Ex parte James E. Dunaway.
SC 322.
Supreme Court of Alabama.
May 3, 1973.
William B. McCollough, Jr., Birmingham, for petitioner.
No brief for the State.
COLEMAN, Justice.
Defendant asserts that the decision of the Court of Criminal Appeals is in conflict with a prior decision of this court and a decision of the Supreme Court of the United States, to wit: Leonard v. United States, 378 U.S. 544, 84 S. Ct. 1696, 12 L. Ed. 2d 1028, in which the entire opinion is as follows:
The opinion of the Court of Criminal Appeals as here pertinent recites, 50 Ala. App. 200, 278 So.2d 200:
In application for certiorari, defendant asserts that the holding expressed in the foregoing statement by the Court of Criminal Appeals is in conflict with the holding of The Supreme Court of The United States in Leonard v. United States, supra; and that the action of the trial court, in requiring defendant to select a jury from a venire that had previously heard evidence against defendant in another case or had seen defendant convicted and sentenced in a case previously tried, was reversible error in that the action of the trial court deprived defendant of his right to be tried by an impartial jury.
Amendment VI of the Constitution of the United States provides that in all criminal prosecutions, the accused shall enjoy the right to trial "by an impartial jury."
Section 6 of the Constitution of Alabama of 1901 provides that the accused in all prosecutions by indictment, has a right to trial "by an impartial jury."
On its face, the above quoted statement from the opinion of the Court of Criminal Appeals appears to suggest that the court is there holding that a trial court may, without error, require a defendant in a criminal case to select a jury from a venire composed of persons who had just witnessed the trial of defendant for a different offense. Such a holding would appear to be contrary to Leonard v. United States, supra.
We must examine the record in the trial court if we are to decide whether the action of the trial court was erroneous. Ordinarily, on certiorari, this court will not review findings of fact by the Court of Criminal Appeals in the absence of a full statement of the evidence in the opinion of the Court of Criminal Appeals. Loyd v. State, 279 Ala. 447, 186 So. 2d 731; Haywood v. State, 280 Ala. 171, 190 So. 2d 728. Even when the Court of Appeals has not written an opinion, however, in "extreme instances," this court has looked to the record to ascertain the facts necessary to decision upon a federal question. State v. Parrish, 242 Ala. 7, 5 So. 2d 828.
See also: Brown v. State, 277 Ala. 353, 170 So. 2d 504; Wright v. State, 279 Ala. 84, 181 So. 2d 898; Dillard v. State, 283 Ala. 245, 215 So. 2d 464.
In Fowler v. State, 261 Ala. 262, 74 So. 2d 512, this court looked to the original record, not for the purpose of settling any disputed question of fact or of reviewing the Court of Appeals in respect to its finding of facts, but for an interpretation or a more complete understanding of matters discussed in the opinion of the Court of Appeals with respect to the question whether the jury in a trial for robbery had been sworn.
In the instant case we look to the record to ascertain what appears there with respect to defendant's objection to striking from the venire. The record recites as follows:
On consideration of the foregoing record, we are of opinion that defendant has failed to show that he was required to strike from the same venire which had just witnessed a trial of the accused for a different offense.
It follows that error by the trial court has not been shown and certiorari to the Court of Criminal Appeals is due to be denied.
Writ denied.
BLOODWORTH, McCALL, FAULKNER and JONES, JJ., concur. | May 3, 1973 |
8b6bd591-bb65-4039-92a9-eca1e0b06441 | Knight v. State | 276 So. 2d 628 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 628 (1973)
In re Herbert H. KNIGHT
v.
STATE.
Ex parte Herbert H. Knight.
SC 309.
Supreme Court of Alabama.
April 19, 1973.
Jack W. Smith, Dothan, for petitioner.
No brief for respondent State.
FAULKNER, Justice.
Petition of Herbert H. Knight for Certiorari to the Court of Criminal Appeals to *629 review and revise the judgment and decision of that Court in Knight, alias v. State, 50 Ala.App. 39, 276 So. 2d 624.
Writ denied.
HEFLIN, C.J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | April 19, 1973 |
124d6ca9-6beb-4135-888a-cee93c605ab8 | Bryce Hospital Credit U., Inc. v. Warrior Dodge, Inc. | 276 So. 2d 607 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 607 (1973)
In re BRYCE HOSPITAL CREDIT UNION, INC.
v.
WARRIOR DODGE, INC.
Ex parte Bryce Hospital Credit Union, Inc., a corporation.
SC 295.
Supreme Court of Alabama.
April 19, 1973.
Turner & Turner, Tuscaloosa, for petitioner.
*608 No brief for respondent.
C. Stephen Trimmier and Rives, Peterson, Pettus, Conway & Burge, Birmingham, for Alabama Credit Union League, amicus curiae.
MERRILL, Justice.
Petition of Bryce Hospital Credit Union, Inc., a corp., for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Bryce Hospital Credit Union, Inc., v. Warrior Dodge, Inc., 50 Ala.App. 15, 276 So. 2d 602.
Writ denied.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | April 19, 1973 |
4f8d9b0c-cb74-4f56-996c-b9403f5a22af | Aycock v. State | 277 So. 2d 412 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 412 (1973)
In re Carlton Jerry AYCOCK
v.
STATE of Alabama.
Ex parte Carlton Jerry Aycock.
SC 308.
Supreme Court of Alabama.
May 3, 1973.
*413 Smith & Smith, Dothan, for petitioner.
JONES, Justice.
This is a petition for writ of certiorari to the Court of Criminal Appeals to review and revise the opinion and judgment which that court rendered in Aycock v. State, 4 Div. 125, 50 Ala.App. 130, 277 So. 2d 404 (1973).
After careful consideration of the petition, we have determined that it does not comply with Supreme Court Rule 39. 286 Ala. XXI; Morrison v. Morrison, 287 Ala. 343, 251 So. 2d 764. It follows that the petition for writ of certiorari must be denied.
We feel it necessary to point out once again that the requirements of Rule 39 are jurisdictional. Duncan v. State, 275 Ala. 290, 154 So. 2d 305. The mere assignment of alleged error is not sufficient. As stated in Rule 39:
"... applications for writs of certiorari will be granted only (1) from decisions initially holding invalid a city ordinance, a state statute or a federal statute or treaty, or initially construing a controlling provision of the Alabama or federal Constitution; or (2) from decisions that affect a class of constitutional, state or county officers; or (3) from decisions where a material question requiring decision is one of first impression in Alabama, or (4) from a decision that is in conflict with a prior decision of this court on the same point of law. When (4) is the basis of the application, it must quote that part of the opinion of the appropriate court of appeals, and that part of the prior decision of this court with which the conflict is alleged."
An allegation that the decision of the Court of Criminal (Civil) Appeals is within the purview of one or more of the four above-stated categories must be set out in the petition for certiorari. See Ex parte State of Alabama ex rel. Attorney General. (In re Clarence Stallworth v. State), 285 Ala. 72, 229 So. 2d 27 (1969), modfied in Hanvey v. Thompson, 286 Ala. 614, 243 So. 2d 748 (1971) which sets out suggested language to comply with our Rule 39.
Writ denied.
COLEMAN, BLOODWORTH, McCALL and FAULKNER, JJ., concur. | May 3, 1973 |
7d8dd860-da7e-46ec-990e-445e0d0711cc | Hubbard v. State | 274 So. 2d 298 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 298 (1973)
Wade HUBBARD
v.
STATE of Alabama.
6 Div. 457.
Supreme Court of Alabama.
March 8, 1973.
*299 ON REMANDMENT FROM THE SUPREME COURT OF THE UNITED STATES
MERRILL, Justice.
On October 17, 1968, this court denied an application for rehearing in Hubbard v. State, 283 Ala. 183, 215 So. 2d 261, wherein the conviction of Hubbard for murder in the first degree and a sentence imposing the death penalty was affirmed.
The mandate from the Federal Supreme Court in the Hubbard case, dated July 26, 1972, 408 U.S. 934, 92 S. Ct. 2851, 33 L. Ed. 2d 747, stated in part:
Stewart, cited in the mandate, is based on the concensus determination of the several opinions in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, and was announced the same day, June 29, 1972. The one thing in Furman that is plain is that "The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings."
Title 14, § 318, Code 1940, provides for the punishment for murder in the first degree:
There is no question that Furman has, as of now, eliminated the death penalty from our statute, § 318, supra.
The elimination of the death penalty from our statute does not destroy the entire statute. The only sentence which can now be imposed upon conviction of the crime of murder in the first degree is life imprisonment. This is now an automatic sentence and the jury, the trial court, the Court of Criminal Appeals and this court have no discretion or choice in the sentence. It must be life imprisonment.
We come now to the question of sentencing. Generally, in the future, the sentence will be life imprisonment and pronounced by the circuit court as provided in Tit. 15, § 325. And if the proper sentence is not imposed, the cause will be remanded for proper sentence.
But this is one of several cases where the defendant was on "death row" under a proper and legal sentence at the time of allocution and sentence. They were not executed because Furman and other similar cases were being submitted to the Supreme Court of the United States. See Brown v. State, 288 Ala. 680, 264 So. 2d 549[4]. We think these cases are in a special category and should be specially treated.
The highest courts in several states have handled the matter without fanfare, duplication of procedures and with safety and economy. In Anderson v. State, Fla., 267 So. 2d 8, the Supreme Court of Florida said the following with which we agree:
To the same effect see: State v. Leigh, 31 Ohio St.2d 97, 285 N.E.2d 333; State v. Funicello, 60 N.J. 60, 286 A.2d 55; Patrick v. State, Okl.Cr., 502 P.2d 1289; State v. Cobb, Mo., 484 S.W.2d 196.
The sentence of death imposed on the defendant, Wade Hubbard, is vacated and set aside. In lieu and instead thereof, the sentence is corrected to provide that the said Wade Hubbard be imprisoned in the State penitentiary for the term of his natural life. The clerk of this court shall furnish a certified copy of this order to the clerk of the Circuit Court of Jefferson County, and the clerk of that court shall issue a commitment in this case based upon this sentence of life imprisonment and shall forward the commitment to the Board of Corrections.
*301 A copy of this opinion shall also be transmitted to the Court of Criminal Appeals because that court acquired jurisdiction of criminal matters after the instant case was originally decided by this court.
Under the holding of the Federal Supreme Court in Furman, supra, which we are required to follow, the death penalty cannot be inflicted in the instant case. The permanency of the decision in Furman is doubtful but it must be here applied.
It follows that except as to the death sentence, the judgment of the circuit court is affirmed. With regard to the death sentence, the judgment of the circuit court is modified and the sentence is reduced to life imprisonment, and as modified, the judgment is affirmed.
Modified and affirmed.
HEFLIN, C. J., and COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL, FAULKNER and JONES, JJ., concur. | March 8, 1973 |
796720c3-727e-4a96-b972-fb31d98172cc | Hollenquest v. State | 274 So. 2d 613 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 613 (1973)
Luther HOLLENQUEST
v.
The STATE of Alabama.
SC 273.
Supreme Court of Alabama.
March 15, 1973.
Jerry L. Cruse, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Luther Hollenquest appeals from a judgment of conviction for grand larceny (Title 14, § 331, Code of Alabama 1940, Recompiled 1958), and a sentence of three years in the penitentiary. The cause was transferred to our court on February 28, 1973 from the Court of Criminal Appeals, by authority of Title 13, § 111(11a) of our Code.
Defendant was employed by Radio Hospital, a Montgomery business which sold, among other things, air conditioners. The testimony tended to show that he engaged in a bit of "free enterprise"selling his employer's merchandise on the side, and personally pocketing the proceeds. Mrs. Irene Rice testified she paid the defendant $75 cash for an air conditioner, later identified by serial number as one worth $140 and missing from the Radio Hospital:
No evidence indicated that defendant ever turned over to his employer the $75 thus realized by selling the air conditioner worth $140.
Appellant argues that there was no proof he took and carried away the air conditioner from his employer's warehouse. There was indeed no direct evidence of this, but a conviction of crime in this state may be had on circumstantial evidence which is so strong and cogent as to show defendant's guilt to a moral certainty. James v. State, 22 Ala.App. 183, 113 So. 648 (1927). Such is the case here. Appellant *614 argues that the evidence does not show that the air conditioner found in Mrs. Rice's home was the one missing. We think the jury could draw a contrary inference. Appellant argues that the State failed to prove its case, and that his motion for a new trial should have been granted. We hold that the trial judge did not err in his ruling.
We have carefully reviewed the record for error, in accordance with Title 15, § 389 of our Code. No error appearing, the judgment of conviction and sentence must be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | March 15, 1973 |
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