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a06363c5-b566-4a38-8e3c-3f9ee0401bfc | State Farm Fire and Casualty Company v. Lambert | 285 So. 2d 917 | N/A | Alabama | Alabama Supreme Court | 285 So. 2d 917 (1973)
STATE FARM FIRE AND CASUALTY COMPANY and Southern Guaranty Insurance Company et al.
v.
Ronnie LAMBERT.
S.C. 346.
Supreme Court of Alabama.
November 15, 1973.
Pillans, Reams, Tappan, Wood, Roberts & Vollmer and Geary A. Gaston, Mobile, for appellant, State Farm Fire & Casualty Co.
Collins, Galloway & Murphy and Robert H. Smith, Mobile, for appellant, Southern Guaranty Ins. Co.
James R. Owen, Bay Minette, for appellee.
JONES, Justice.
Is the "physical contact" requirement in a "hit-and-run" clause in the uninsured motorist provision of an automobile liability insurance policy in derogation of the Alabama Uninsured Motorist Statute?
While the posture of the proceedings below is not entirely clear, all parties in interest concede that our answer to the foregoing question is dispositive of this appeal. We answer, as did the court below, in the affirmative; and, accordingly, we affirm.[1]
*918 This is a case of first impression in Alabama. The pertinent provisions of each policy are as follows:
"DEFINITIONSPART 1.
"UNINSURED AUTOMOBILEUnder Coverage U Means: * * *
"(2) a hit-and-run automobile as defined: * * *
(1) there cannot be ascertained the identity of either the operator or owner of such `hit-and-run automobile' * * *"
The Alabama Uninsured Motorist Statute (Title 36, § 74(62a), Code of Alabama 1940 (Recomp.1958), as amended) became effective January 1, 1966, and reads as follows:
Appellee concedes that the physical contact requirement is valid unless the Uninsured Motorist Statute includes within its scope and purview hit-and-run drivers. Appellants conceded that if the statute does include hit-and-run drivers, the "physical contact" provision is void as being more restrictive than the statute.
The threshold question, then, is whether the legislature by passage of the uninsured motorist statute intended to cover within the term "uninsured motorist" a hit-and-run driver.
This question cannot be answered apart from the historical context within which the statute was passed. Automobile liability insurance has long been recognized as the only practical means for the general motoring public to provide financial responsibility concomitant with the increasing number of injured personsfatal and non-fatalresulting from the use of our highways. Out of the increase in the number of vehicles, their greater power and speed, and the resultant social problem of the uncompensated injured and deceased evolved the debate as to the public policy best suited to fill this need.
Primarily, two alternatives were considered. One was the Uniform Motor Vehicle *919 Safety-Responsibility Act and the second was compulsory liability insurance.[2] Alabama, along with some 42 other states, chose the former. This public policy, as expressed in §§ 74(42)-74(83), Title 36, Code of Alabama 1940 (Recomp.1958), as amended, was adopted by the Alabama Legislature, effective January 1, 1952, and provided in substance that those who were answerable for injuries and damages resulting from their fault in the use and maintenance of an automobile who did not have automobile liability insurance, or who were otherwise unable to financially respond to such damages, would be subject to the loss of their driving privileges.[3] While this policy tended to develop an ever increasing consciousness on the part of the motoring public for the need of financial responsibility to third parties, the practical effect was nonetheless to leave a substantial number of the motorists uninsured and financially irresponsible.
A progressive and an imaginative insurance industry moved into this gap and provided, as optional coverage, uninsured motorist protection. The responsible motorist was now able for a nominally increased premium to cover not only his liability to others, but to protect himself from loss due to personal injury incurred through the fault of the financially irresponsible. These irresponsible motorists fall basically into two categoriesthe known driver and the unknown driver (hit-and-run).
While the gap was narrowed, it was not fully bridged. Two deficiencies yet remained: (1) the uninsured motorist coverage was purely contractual and thus wholly optional, and (2) by the terms of the policy the insured's protection against hit-and-run drivers was conditioned on physical contact of the vehicles involved.
In light of this historical perspective, and working within the traditional fault concept, the legislature passed the Uninsured Motorist Statute. By requiring each policy to include such coverageabsent an express disavowal on the part of the insuredthe gap represented by the first deficiency was further narrowed. It is equally clear that the statute in providing "for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles" speaks directly to the second deficiencythe unknown or hit-and-run as well as the known financially irresponsible driver.
To hold that the legislative intent had the restrictive effect of speaking only to the first of the two above-referred to deficiencies is to dispute that the purpose of the statute is to protect persons who are injured through the fault of other motorists who in turn are not insured and cannot make whole the injured party. The design of the statute is to protect injured persons who can prove that the accident did in fact occur and that he was injured as a proximate result of the negligence of such other motorist who cannot respond in damages for such injuries. Moreover, the statute permits the enforcement of the policy provisions by the insured directly against the insurer without first obtaining a judgment against the uninsured.[4]
We agree with the Florida Supreme Court which addressed itself to the identical issue in Brown v. Progressive Mutual Insurance Company, 249 So. 2d 429 (1971), thusly:
We have consistently held that policy provisions more restrictive than the statute will not meet the test of validity. Higgins v. Nationwide Mutual Insurance Company, 291 Ala. 462, 282 So. 2d 301 (1973); Hogan v. Allstate Insurance Company, 287 Ala. 696, 255 So. 2d 35, (1971); Preferred Risk Mutual Insurance Co. v. Holmes, 287 Ala. 251, 251 So. 2d 213 (1971).
We hold, therefore, that the "physical contact" requirement in the "hit-and-run" provision of the automobile liability insurance policies here under consideration is in derogation of the Alabama Uninsured Motorist Statute and is void as against public policy.
Affirmed.
HEFLIN, C. J., and BLOODWORTH and McCALL, JJ., concur.
COLEMAN, J., concurs in result.
[1] We recognize that the extent of liability of each of the appellants is not adjudicated by this affirmance since this issue is yet to be determined.
[2] For a more detailed historical account of legislation leading to the adoption of Uninsured Motorist Statutes, see Widiss, A Guide to Uninsured Motorist Coverage, Chapter 1.
[3] See Mooradian v. Canal Insurance Co., 272 Ala. 373, 130 So. 2d 915 (1961); and American Southern Insurance Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So. 2d 783, 4 A.L.R.3d 611 (1963).
[4] Widiss, A Guide to Uninsured Motorist Coverage, § 1.9. | November 15, 1973 |
451b2572-3e9d-4f8f-8c5e-0ca3d9e2e4f3 | Daniels v. State | 276 So. 2d 441 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 441 (1973)
In re James B. DANIELS
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 171.
Supreme Court of Alabama.
April 5, 1973.
*442 William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for petitioner.
Jones, Murray, Stewart & Yarbrough, Montgomery, for respondent.
BLOODWORTH, Justice.
The petition of the State of Alabama for a writ of certiorari to review the decision *443 of the Court of Criminal Appeals [1972] 50 Ala.App. 11, 276 So. 2d 438, was granted on the ground that the petition presented a material question of first impression in Alabama.
The Court of Criminal Appeals reversed the defendant's conviction for possession of marijuana. The facts of the case disclosed by that court's opinion are as follows.
Two motorcycle policemen, while following a taxicab, bearing a New York State license tag, driving slightly in excess of the speed limit, saw it run a caution light, then turn from the wrong lane of the Southern By-Pass onto the turn-off to the Selma Highway. The officers radioed in for a check to determine if the cab was stolen. They overtook, and stopped the vehicle, asked the driver to the rear (to avoid oncoming traffic) and arrested him for the traffic violations. At that time, the police radio reported that the vehicle was stolen. The driver was then also arrested for grand larceny. As one officer approached the taxi (in which four persons were passengers), defendant, a passenger in the back seat to the rear of the driver, was observed to toss a Kleenex box over his shoulder onto the ledge back of the seat. The officer reached in, grabbed the Kleenex box, took it out and after removing the top sheets, found marijuana. Defendant was arrested for possession thereof. It later appeared, by reason of a mistake in the tag number, the taxi was not stolen. It does not appear who made the mistake. (The officer stated at trial that he was looking for weapons and testified that he had previously discovered weapons hidden in Kleenex boxes.)
In the Court of Criminal Appeals' per curiam opinion (authored by Honorable W. J. Haralson, Supernumerary Circuit Judge), which opinion was concurred in by three Judges, one judge dissenting and another judge recusing himself, it was held:
1. That "[t]he search could not be justified as incidental to the arrest of Floks [the driver of the car], or for the discovery of weapons on him;"
2. That the marijuana "was not in plain view;" and,
3. That "the suspicious action of the appellant did not amount to probable cause for the search."
Since the officers conducted a "warrantless" search, it cannot, of course, be upheld as valid unless it falls within one of the exceptions to the rule that a search must be conducted pursuant to a valid search warrant.
Notwithstanding the United States Supreme Court's assertion that its cases on the subject of the extent of a search which may be made without a warrant following a lawful arrest "cannot be satisfactory reconciled,"[1] it now seems to be fairly well established that there are at least six exceptions under which warrantless searches have been held valid, viz:
(1) In "plain view," see Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971);
(2) With "consent" voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938);
(3) As "incident to a lawful arrest," see Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959);
(4) In "hot pursuit" or "emergency" situations, see Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
*444 (5) Where "exigent circumstances" exist coincidental with "probable cause" (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970)[2]; and,
(6) In "stop and frisk" situations, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 889 (1968).
The justification for these exceptions is shown in the following comments from United States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969):
It must be concluded that the Court of Criminal Appeals was not correct in its holding that the search in this case was not valid as "incidental to the arrest of Floks," although its holding was correct that the search was not valid for the "discovery of weapons on him." Of course, the marijuana was not in "plain view." The search was valid either as incident to the arrest of the driver, Floks, or under exception (5), probable cause to search the reportedly stolen vehicle.
In Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the United States Supreme Court articulated the reason for exception (5):
Here, there were "exigent circumstances," in addition to probable cause, which justified the immediate search of the vehicle. There were four passengers remaining in the automobile after Floks was arrested, and the vehicle was certainly mobile. Presumably, any one or more could leave the vehicle, taking the Kleenex box and any other removable items with them. Thus, the "exigent circumstances" requirement has been met.
In Terry v. Ohio, supra, the Supreme Court of the United States stated the test for "probable cause" to be:
In People v. Smith, 62 Misc.2d 473, 308 N.Y.S.2d 909, 913 (1970), the New York Court wrote that:
In People v. Smith, supra, the defendant was stopped for speeding and produced a New York State chauffeur's license which did not have a photograph attached as required by law. Defendant was unable to give the officers his first name, was unable to answer questions concerning his address, and was unable to produce the car registration, telling the officers to look for it among some papers in the trunk. As one of the officers examined these papers, defendant entered the car. The officer, finding no registration for the car, followed the defendant. As the officer came to the door on the driver's side, the defendant abruptly pulled his right hand back from the glove compartment and his left hand from below the seat. Defendant then stepped out of the car, pushed a piece of paper into the officer's hand, and moved rapidly past the officer to the other officer. The paper which defendant handed the officer was a registration for the plates on the automobile, but it had been issued for another vehicle. A brown paper bag was then observed by the officer, partially under the driver's seat. This bag was searched by the officer and heroin was found and seized therein.
The New York court held, viz:
The defendant's conviction for possession of heroin was upheld.
In United States v. Humphrey, supra, two officers of the Oklahoma City Police Department stopped an automobile bearing out-of-state license plates for violation of a traffic ordinance. As the auto came to a stop, the officers observed a passenger in the right front seat make a "furtive" motion as if he were putting something under the seat. The driver of the auto was searched by one of the officers, after producing his driver's license. This search disclosed several money orders, which were not in the driver's name. The other officer frisked the two passengers and, finding nothing, asked them to step to the rear of the car. He then searched under the front seat of the car and found two revolvers. The two passengers were then arrested for possession of firearms in violation of a city ordinance. The driver was arrested for the traffic violation.
Chief Judge Murrah, author of the opinion for the Court of Appeals for the 10th Circuit, in upholding the conviction of Humphrey, one of the passengers, for interstate transportation of firearms (in a *446 joint appeal by the driver and the passenger), wrote:
Although the Court of Criminal Appeals' opinion in the instant case indicates that the report of the taxicab's having been stolen was later found to be erroneous, this report constituted sufficient probable cause to justify the officers in conducting the search and seizing the contraband. Certainly, officers are warranted in searching a stolen vehicle or articles situated therein for an instrumentality used to commit the crime, such as a "hot wire," duplicate keys, etc. and to seize "fruits of the crime," such as registration papers, documents of title, gas tickets, etc., either belonging to the true owner or connecting the driver or others with the commission of the offense of stealing the vehicle. United States v. Jackson, 429 F.2d 1368 (7th Cir. 1970), (Jackson was authored by retired United States Supreme Court Justice Tom C. Clark, sitting by special designation).
In Jackson, officers of the Chicago Police Department noticed a car driven by the defendant had only a rear license plate and that the license number differed in only one digit from a license number on their daily stolen car list. Defendant was stopped, and the officers radioed headquarters for information regarding defendant's license number. Defendant could produce no valid driver's license. A search of his person disclosed $400 in cash. Defendant was placed under arrest as he could not locate the title paper which would identify him as the owner of the vehicle. As the defendant was getting into the police car, the officers received a radio report that the license number on defendant's car was not registered to that car. A search was then made of the car which revealed, among other contraband, a counterfeit refund check from an airline. Defendant was indicted for interstate transportation of the counterfeit refund check. The court held:
The rationale and conclusions reached in these three cases are most persuasive in the case at bar. Factually, they are very close to the instant case.[3]
With respect to "probable cause," the police had a report from the National Crime Information Center that the vehicle was stolen. This supplied the probable *447 cause to arrest Floks, the driver. Additionally, there was the "furtive" action of the defendant. Hence, there was sufficient probable cause to conduct the search of the taxicab.
What then of the fact that the report appears to have been false? The case of Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971), supplies the answer. There, the United States Supreme Court held:
"* * *
"* * *
"* * *
Here, the officers believed, in good faith (by reason of the radio report), that the taxi was stolen. As stated in Hill, supra, "sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment."
In this court's most recent case in the area of search and seizure, In re McArthur Bassett v. State of Alabama, [1973] (Per Maddox, J.) 290 Ala. 259, 275 So. 2d 720, illegal drugs discovered and seized in a warrantless search of an automobile at the station house were held admissible, because the officers had probable cause to make the search of the vehicle for fruits of a robbery. The car was stopped because the occupants purportedly met the description of the robbers, although, as it turned out, they were not, in fact, the robbers. This court followed the United States Supreme Court case of Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). This court agreed with the Court of Criminal Appeals that there was "probable cause" to make the search *448 even though it later turned out that probable cause did not exist, because the two occupants were found not to be the robbers.
In the instant case, an almost identical situation exists where the officers had probable cause to believe at the time of the search and seizure that the automobile was stolen, because they had received a report to that effect from the National Crime Information Center relayed via police radio network. The fact that the auto was not in fact stolen, as later appears to be the case, should not render the search invalid. Hill, supra, is directly in point in this regard. The opinion does not reflect who made the mistake in the tag number or how the mistake was made. Clearly, at the time the officers had probable cause to believe that the auto was in fact stolen.
This being so, it appears that the search of the Kleenex box by the officer was a "reasonable response to the situation facing them at the time." Hill v. California, supra. The officers had a right to search the auto for weapons, for instrumentalities used to commit the crime, or for fruits of the crime. The officers in this case were not searching the car for drugs, but were conducting a limited search of the nature just described. Of course, the fact that they were not searching for marijuana, which was found, does not mean that the marijuana could not be seized and used as evidence against the defendant at his trial for possession of marijuana. Abel v. United States, supra.
This court holds, therefore, that the search and seizure was valid and that the defendant's Fourth Amendment rights were not violated. It follows that the judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded.
Reversed and remanded.
All Justices concur.
[1] Abel v. United States, 362 U.S. 217, 235, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960), reh. den. 362 U.S. 984, 80 S. Ct. 1056, 4 L. Ed. 2d 1019.
[2] See Anno "Validity, Under Federal Constitution of Warrantless Search of AutomobileSupreme Court Cases," 26 L.Ed.2d beginning at page 893.
[3] For other cases, see Anno "Search and Seizure: `Furtive' Movement or Gesture As Justifying Police Search," 45 ALR3d 581. | April 5, 1973 |
37105ca1-6c8c-48c9-929c-908c982f553c | Holcomb v. Escambia County Hospital Board | 278 So. 2d 699 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 699 (1973)
Lisa Ann HOLCOMB, suing By and Through her father and next of kin, Victor Holcomb
v.
ESCAMBIA COUNTY HOSPITAL BOARD, a Public County Hospital Corp.
SC 130.
Supreme Court of Alabama.
April 12, 1973.
Kenneth Cooper, Bay Minette, for appellant.
Thomas E. Twitty, Mobile, Broox G. Garrett, Brewton, for appellee.
HARWOOD, Justice.
Upon original deliverance a majority of the justices of this Court concluded that the judgment entered in this cause should be reversed and remanded. An application for rehearing was duly filed. Upon further consideration and in the light of the application for rehearing, a majority of the justices have now concluded that the application for rehearing should be granted and the judgment of the court below affirmed.
The result of such action is stated by the Supreme Court of Mississippi in White v. State, 190 Miss. 589, 195 So. 479, to be:
In Bally v. Guilford Township School Corporation, 234 Ind. 273, 126 N.E.2d 13, it is stated:
To like effect see Atlantic Greyhound Corp. v. Public Service Commission et al., 132 W.Va. 650, 54 S.E.2d 169.
Statements in accord with principles above enunciated may also be found in 5 C.J.S. Appeal and Error, § 1446 and 5 Am.Jur.2d., Appeal and Error, Sec. 984.
In Stoke v. Converse, 153 Iowa 274, 133 N.W. 709, the court observed:
The basis upon which a majority of the justices have concluded that the application for rehearing should be granted is that at the original conference of the court when this case was presented the matter of the sufficiency of the assignments of error was not considered.
The appellant has made three assignments of error which read:
Each of the above assignments constitutes nothing more than statements of general principles of law. No ruling of the trial court is mentioned. In assigning errors, an appellant must specify the action of the trial court which he would have reviewed and revised; and only adverse rulings of the trial court are subject to assignment as error and reviewable. The office of an assignment of error is not to set forth general legal principles or contentions, but solely to inform the court that an appellant assigns as erroneous a certain specified ruling.
The above principles are set forth in a myriad of our cases, and we see no need to again cite individual cases in support of the above statements. These cases may be found in Alabama Digest, Vol. 2A, Appeal and Error.
*701 By no construction, however liberal, can the purported assignments of error be considered as sufficient to invite a review of this judgment. The application for rehearing is therefore due to be granted, the original opinion and judgment of this court should be set aside, and the judgment appealed from is due to be affirmed. It is so ordered.
Application for rehearing granted.
Original opinion and judgment set aside.
Affirmed.
MERRILL, BLOODWORTH, MADDOX, and McCALL, JJ., concur.
HEFLIN, C. J., and COLEMAN, J., concur specially.
FAULKNER and JONES, JJ., dissent.
HEFLIN, Chief Justice (concurring):
This case has been decided on a "technicality" rather than its merits, and for the reasons stated in my special concurring opinion in Midstate Homes v. Roberts, 288 Ala. 86, 257 So. 2d 333 (1972), I concur in the majority opinion.
COLEMAN, Justice (concurring specially):
I agree that the assignments of error are insufficient to present any question for review by this court, that the rehearing be granted, and that the judgment appealed from be affirmed.
FAULKNER and JONES, Justices (dissenting).
In registering our dissent to the majority opiniongranting appellee's Application for Rehearing on the "insufficiency" of appellant's assignments of errorwe wish to make it clear that it is not our purpose to either disagree with Supreme Court Rule 1, or ignore its application. The spirit of this rulerequiring appellant to specify error so as not to put the appellate court in search of erroris essential to good order and its enforcement mandates dismissal of the appeal where the spirit of the rule is violated.
This dissent is based on our conviction that the spirit of this rule has not been violated in the instant case. The appeal is from a judgment of nonsuit superinduced by the adverse ruling of the trial court in sustaining defendant's demurrer to the plaintiff's complaint. There is but a single ruling of the court below contained in the record and the office of a motion for voluntary nonsuit in such cases is for the limited and exclusive purpose of reviewing such ruling, and on appeal only such ruling is reviewable. Roan v. Associates Discount Corp., 281 Ala. 100, 199 So. 2d 643; Esslinger v. Spragins, 236 Ala. 508, 183 So. 401.
As early as 1881, this Court, as then constituted, in Robinson v. Murphy, 69 Ala. 543, had the wisdom to recognize:
Later it was observed that this exception had been applied only in equity cases:
Rule 1 is equally applicable to appeals at law and in equity; and, as the case at *702 hand so forcibly demonstrates, where there is a general assignment of errorwhich goes to the entire order of the trial court no search of the record is required to discern the error complained of. In the usual case, absent specific assignments of error there is no "pleading" by which the appellate court's ruling is invoked. That an exception exists (where a review of a single error going to the whole of the lower court's order is the avowed purpose of the appeal) is the common sense holding of Robinson.
The simple truth is (and we should bow our shameful heads in acknowledged blasphemy), except for the point being raised in appellee's brief,[1] the author of the original majority opinion would not have engaged in the futile exercise of "searching" the record for the assignments of error; and, this for the reason that the error complained of in an appeal from a judgment of nonsuit is more apparent from the record than are the assignments of error the basis of the Robinson exception. It is ironic, indeed, that the majority of the Court was put in search of the record to discover the "insufficiency" of the assignments of error, when the author of the original opinion was not put in search of the record to discover the error complained of. We further note that the majority opinion in setting forth the assignments of error omits the lead sentence, which reads as follows:
It is our opinion that the words "there is manifest error in this cause", coupled with the fact that this is an appeal from a judgment of nonsuit, conform to the exception recognized by this Court in Robinson.
The appellee's argument, in support of its contention that a failure to dismiss the appeal for appellant's violation of Rule 1 would deny to appellee "equal protection of the laws", induces us to observe that perhaps some good may come from the granting of the Application for Rehearing. A public entity who enjoys sovereign immunity from tort actions, and who defended the instant appeal on its merits on that ground, is at least talking about "equal protection of the laws".
Since the granting of the Application for Rehearing is grounded by the majority opinion on the limited issue of the sufficiency of assignments of error, and having registered our dissent on this point, we now adopt and herewith set forth the original opinion which was authored by Associate Justice Jones and concurred in by the Chief Justice and Associate Justices Coleman, Harwood and Faulkner.
This is an appeal from a judgment of the Circuit Court of Escambia County which sustained defendant's demurrer to the complaint and ordered an involuntary non-suit with leave to appeal.
The material allegations of the two counts of the complaint are as follows:
Count Two makes the same allegations as to the existence of the contract, and then charges:
This is another "County Hospital" case. These cases, claiming damages (personal injury) for breach of contract in order to circumvent the sovereign immunity doctrine,[1] had their inception in Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So. 2d 817.
By skillfully tracking the Paul complaint, plaintiff here seeks to invoke the influence of Paul, and thereby (1) avoid the tort immunity defense; and (2) escape the holding of Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So. 2d 328, to the effect that an action in assumpsit will not lie where the allegations predicate a breach on wrongful or negligent performance in the absence of an express contract.
Any dissimilarity in the averments of the complaint in Smith and those in the case at *704 bar is a distinction without a difference. In Smith the plaintiff alleged that the defendant's breach consisted of administering a shot of medication in the nerve of his arm (as opposed to the blood vessel); while here the plaintiff alleges that the defendant's breach consists of administering a medication different from that prescribed by her doctor. This similarity necessarily dictates one of two conclusions: (1) On the precedent of Smith, we must affirm the trial court's ruling sustaining the demurrer to plaintiff's complaint, or (2) Smith v. Houston County Hospital Board, supra, must be expressly overruled.
The answer is not simple. The complexity of the problem is clearly focused by the recent memorandum opinion of U. S. District Judge Sam Pointer,[2] interpreting Alabama law in a similarly plead factual situation (the wrongful death aspect therein not here material), which holding is accurately summarized in the editor's syllabus as follows:
If this interpretation of the status of our law is correct, and we confess that Smith so holds, our case law has evolved the following propositions:
1. An action for damages growing out of a contract implied by the nature of the relationship of parties (in this case, the hospital-patient relationship) can be enforced in an action ex contractu only where there is a total failure to enter upon the performance of a contract.
2. Where the defendant undertakes to perform an implied contract and defaults after partial performance, or breaches its terms by wrongful or negligent performance, an action in contract will not lie. Stated another way, in the absence of an express contract between the parties, once the defendant has commenced to perform the contract, or entered upon its performance, the contract gives way to the duty imposed by law in such cases, and the only remedy available to the plaintiff for the breach of such public duty is in tort.
Some examples may serve to clarify:
A. P-Shipper delivers his tomato crop to D-Carrier for transport to market. D leaves tomatoes in warehouse and does not undertake to load and ship as agreed, and tomatoes rot. Action in assumpsit will lie.
B. D loads tomatoes on boxcar and starts to market but boxcar is sidetracked at a point short of designated market and tomatoes rot. In the absence of an express agreement not to sidetrack, an action ex delicto only will lie.
C. D loads tomatoes on boxcar and starts to market and engineer runs at excessive speed and overturns boxcar and tomatoes rot. In the absence of express agreement to use due care in transporting crop to market, an action ex delicto only will lie.
From the foregoing analysis we must perforce conclude that we have either (1) created an exception heretofore unknown to the law of contracts to the effect that the criteria for determining a breach of an implied contract are different from that criteria applicable to an express contract; or (2) we have given the field of operation of contract law a limited application in the hospital-patient relationship cases.
The former suggests what we believe is an unwarranted distinction between implied *705 and express contracts. Traditionally, the distinction between the two types of contracts has been confined to the query: "What is the contract?", but this distinction does not extend to different criteria for determining the breach. The latter conclusion is wholly untenable since the law of contracts cannot be so narrowly restricted so as to apply in one way to one relationship (for example, shipper-carrier), and in another way to another relationship (for example, hospital-patient).
An analysis of the cases that brought us to this point is in order. Since the holding in Paul is expressly anchored in Vines v. Crescent Transit Company, 264 Ala. 114, 85 So. 2d 436, we take Vines as our point of beginning.
Vines contained two counts. In the words of the opinion:
It is important to note that the opinion in Vines, which concluded that "... both counts are in assumpsit," contains a careful and rather exhaustive analysis of two distinct, but closely related, legal principles applicable in these cases: First, the election of remedies doctrine; and second, the test for determining whether the complaint sounds in contract or tort.
As to the first, Vines may be summarized as follows:
1. Where the duty is imposed by law, in the absence of a contract, express or implied, the redress for the violation of such public duty must lie in tort.
2. Where the duty arises out of contract, express or implied (arising by operation of law), in the absence of a publicly imposed duty, the redress for the breach of such duty must lie in contract.
3. Where the duty arises by contract, express or implied, and the law imposes a public duty as well, the redress for the breach for such duty will lie either in contract or tort.
The second Vines' principle provides the legal criterion to determine the gravamen of the complaint; i. e., what is charged? Vines, relying on well-established precedents, therein cited, answered this query by saying:
We direct particular attention to the fact that the phrases "failure to perform" and "failure to act" are invariably used in Vines in the context of the second proposition the pleading testand never in the context of the first propositionthe substantive right of election between actions in contract and actions in tort. In other words, the application of the pleading test presupposes the existence of the election of remedies and looks to the language of the pleading constituting the alleged violation of duty to see if the resulting injury is *706 claimed to be due to defendant's "failure to perform" or "failure to act," in which case the complaint states a cause of action in contract; or, on the other hand, if the resulting injury is alleged to be due to the negligent or wrongful conduct of the plaintiff (note here the absence of any allegation of "breach" or "failure to perform"), then the cause of action, as stated in the complaint, is in tort. The determination that the cause of action, as stated by the pleading, is in contract or in tort, is not a determination that the alternative remedy could not have been elected and pleaded.
In light of the foregoing interpretation, there is nothing in Vines to suggest that the breach of contract remedy is limited to a total failure to enter upon the performance of the contract. These phrases "failure to perform," and "failure to act" are words of legal art which characterize the gravamen of the action as ex contractu in form and are not words of limitation which restrict the substantive election of remedies. Stated another way, these words constitute language of pleading used to express a breach of promisewords which are equivalent to charging that the defendant "failed to comply with the terms of the contract (either by omitting to perform or by performing in a different or negligent way)." These are not words which denote or characterize the omission of the defendant to enter upon the performance of the contractual duty. Indeed, a contrary construction would be in direct defiance of the court's holding in Vines that each count stated a cause of action in contract.
Next came Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So. 2d 852,[3] whose complaint was obviously drawn in an effort to come within the influence of Vines. A substantial difference, however, between the pleadings in the two cases is readily apparent. In Vines the complaint averred in detail the terms of the implied contract, while in Garig the contract is averred in general language that "the plaintiff contracted with the defendant for general hospital care and treatment."
The issue in Garig, as stated in the opinion:
After a careful analysis of Vines, and the earlier Alabama cases relied upon and cited by Vines, the Garig opinion concluded:
In summary Garig is entirely consistent with the holding and the ratio decidendi of Vines both as to the pleading tests and the substantive right of election of remedies the one difference being that the pleading test in Vines applied to the alleged breach, while the pleading test in Garig applied to the alleged contractual obligation.
The averment in Garig that the defendant contracted "to furnish to plaintiff general hospital care and treatment" is equivalent to charging that the defendant contracted not to be negligenta publicly imposed duty arising by operation of law the breach of which, in the absence of express *707 contract to exercise reasonable care in performing such publicly imposed duty, will support an action in tort only.
Garig holds quite simply that where a party seeks redress in contract, express or implied, specific terms of the contract out of which the duty is alleged to arise must be averred, and a general averment that the defendant impliedly contracted to exercise due care will be construed as stating a cause of action ex delicto. It is important to note that Garig did not hold that plaintiff's remedy was exclusively in tort, only that the complaint did not state a cause of action in contract.[4]
Then came Paul which not only provided the genesis for aborting the sovereign immunity defense, but also reaffirmed Vines. The difference in the two cases, as disclosed by the pleadings, is merely one of scope. Vines contains the factual averment that the terms of the contract were breached by a failure in its performance (Count A) and by the negligent performance of the contract (Count B), while Paul alleged a failure to perform by failing to provide the services impliedly contracted for.
This subtle distinction between Vines and Paul became the unwitting trap that awaited Smith. In Paul, the defendant did nothing toward providing the services impliedly agreed upon by the nature of the relationship of the parties and allowed the plaintiff to have her baby in the hallway of the hospital unattended. In Smith, the defendant set about providing the services, or entered upon the performance of the contract, but in its performance wrongfully injected a shot of medication into the nerve of the plaintiff's arm and thereby caused paralysis. Smith construed the limited context within which Paul arose as establishing the legal bounds of its field of operation. This limitation results from an interpretation of the following sentence in Paul:
When this sentence is taken in context, the key words "... the plaintiff's cause of action based on such negligence..." are not words of limitation which confine the plaintiff's remedy to an action in tort, but says that if the plaintiff had elected to sue in tort "based upon such negligence", the action would have been barred. The difficulty with the Smith construction of Paul lies in the fact that not even the dissenting opinion in Vines (the sire of Paul) takes this view. Mr. Justice Lawson makes clear in his dissent that he takes issue with the majority only in the application of the pleading test as it relates to Count B, not on the substantive issue of election of remedies.
Smith holds forthrightly that where the facts, as disclosed by the pleadings, show that the defendant entered upon the performance of an implied contract (even though the pleading tests of Vines and Garig are met), and the contractual obligation is breached while in performance, or wrongfully or negligently breached, then the plaintiff's substantive right of election of remedies ceases, and redress for the violation or breach of such duty lies in tort only.
Applying the foregoing analysis to the case at bar the Court must either affirm on the authority of Smith and expressly overrule Vines and the long-standing, well established precedents there relied upon, or the Court must reverse on the authority of *708 Vines and overrule Smith, thereby reaffirming Paul.
The choice is clear. Smith v. Houston County Hospital Board, supra, should be overruled.
[1] No Motion to Dismiss the appeal for failure to comply with Rule 1 was filed, and the requirements of the rule are not jurisdictional. Brittain v. Ingram, 282 Ala. 158, 209 So. 2d 653.
[1] Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So. 2d 583; Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So. 2d 762. We note that we are not invited by this appeal to revisit Jenkins and Garrett, since our review is confined to the contract counts.
[2] Knight v. Collins, D.C., 327 F. Supp. 97. Under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, the Federal Court is required to apply the law of the forum.
[3] The defendant in this case was a private hospital and the motivation for pleading contract was not sovereign immunity but an effort to avoid the one year tort statute of limitation just as in Vines.
[4] As to the element of proof of an implied contract in such cases, see Hall v. City of Huntsville, Alabama, et al., 1973, 291 Ala. 124, 278 So. 2d 708. | April 12, 1973 |
d55e87c7-1cb0-4d1b-ae8c-3603a72b295b | Fulghum v. State | 277 So. 2d 886 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 886 (1973)
Larry W. FULGHUM, alias Larry Wayne Fulghum
v.
The STATE of Alabama.
SC 315.
Supreme Court of Alabama.
May 10, 1973.
*887 Jacob A. Walker, Jr., Opelika, for appellant.
James J. Jenkins, Sp. Asst. Atty. Gen., Tuscaloosa, for the State.
FAULKNER, Justice.
This case presents the evil potentials of carrying a hand gun without any lawful authority to do so.
In the early morning of February 11, 1971, Charles Wyatt Harper, of Lee County, Alabama, was mortally wounded in his own home by Larry Wayne Fulghum, who shot him with a pistol.
From an examination of the record, we observe that Fulghum may not have been sober at the time of the shooting. By his own testimony, Fulghum had been drinking several hours before he knocked on the decedent's door at 4:30 A.M., and forced his entrance into decedent's house by pointing a gun at Mrs. Vivian Harper, the wife of decedent, when she answered his knock on the door. Fulghum came to see his wife, LeMirle, who happened to be spending the night in the Harper home. Mrs. Harper, a State witness, testified that at 4:30 A.M. her door bell rang. She got out of bed and looked out the window and saw Fulghum's car outside.
*888 "A. Well, I went to the door and I opened the door and he said "I want to see LeMirle." I said `Larry, why don't you wait until in the morning.' I said `they're all in the bed asleep. Why don't you wait until in the morning and come back or either call LeMirle.' He said, `I want to see her now and I am going to see her now.' And I said, `Larry, you're not coming in this house, just go on back.' And he said, `I'm coming in.' And I said, `Larry, I don't want to get my gun or anything.' I said `You just go on back.' He said, `I've got a gun.' And he drawed a gun on me and I stepped back and he came on in the house."
Mrs. Harper testified further that her daughter, Judy, who was now out of bed, told Fulghum to go back home and come back the next morning. He said he wanted to see her (LeMirle) tonight.
Fulghum was indicted for murder by the grand jury of Lee County. He was tried by a petit jury under pleas of not guilty and not guilty by reason of insanity. The jury found the defendant guilty of murder in the second degree. His punishment was fixed at 45 years in the State penitentiary. He appeals, alleging and arguing the following errors: (1) That the trial court erred in assessing defendant with the court costs; (2) that the trial court refused to charge the jury on manslaughter in the second degree; and (3) that the trial court erred in qualifying the jurors who had a fixed opinion against capital punishment
Fulghum testified in his own behalf. He testified that he and his wife were separated at the time of the shooting. Their problem appeared to be Fulghum's violent behavior toward her and the children. He said he had committed acts which he did *889 not remember, including an occasion when he found his wife in an automobile with a girl friend. He jumped up and down on the hood of the car and smashed his fist through one of its windows. He said that he suffered from headaches. There was the State's inference of hangovers that caused these headaches, which defendant denied. On the night preceding the early morning shooting, he had gotten off work at 5:30 P.M., Georgia time and gone to his sister's house to get his children. His wife was there. They talkedbut had no cross wordsand he picked up his children and took them to his parents' house and stayed there until 8:00 P.M. He returned the children to his sister's house. His wife was still there and he asked her for the gun which she kept. His wife operated a beauty shop. She gave the gun to him. He said he was going to the Daytona races the next day. He left his sister's house at 9:00 P.M. and went to his home. Later in the evening he drove by his wife's apartment and found her gone. He wondered where she was. He went home again.
Fulghum testified that he had no recollection of going to the decedent's house. He was arrested at his father's house. He was in bed asleep when the law officer came to make the arrest.
We will consider the alleged errors of the trial court in the sequence in which they are argued by the defendant.
The minute entry in the record shows:
When the defendant was found guilty by the jury, the court pronounced judgment and sentence as follows:
The defendant appealed to the Alabama Court of Criminal Appeals, and the cause was thereafter transferred to this Court by statutory authority.
Defendant argues that he can not be sentenced to hard labor to pay the court costs in a felony conviction. Title 11, § 83, Code of Alabama, 1940, Recompiled 1958. In this respect the defendant is correct. In sentencing to the penitentiary, there is no sentence to pay court costs. Here, any reference to payment of the court costs is mere surplusage and is not to be considered a part of the sentence. Thomas v. State, 41 Ala.App. 674, 149 So. 2d 290 (1963); Weaver v. State, 1 Ala. App. 48, 55 So. 956 (1911). Such surplusage in the sentence does not, however, constitute reversible error.
The next alleged error is the trial court's refusal in his oral charge, to charge the jury on manslaughter in the second degree. He stated, "But I will not charge *890 you on manslaughter in the second degree." An exception thereto was duly reserved by the defendant; therefore, it was not necessary for the defendant to request a written charge on the same subject matter.
A defendant who is accused of the greater offense is entitled to have the court charge on the lesser offenses included in the indictment, if there is any reasonable theory from the evidence which would support the position. Stovall v. State, 34 Ala.App. 610, 42 So. 2d 636 (1949); Kelly v. State, 235 Ala. 5, 176 So. 807 (1937). Involuntary manslaughter, or manslaughter in the second degree, is where it plainly appears that neither death nor great bodily harm was intended, but death is accidentally caused by an unlawful act, or an act strictly lawful in itself, but done in an unlawful manner and without caution. Williams v. State, 251 Ala. 397, 39 So. 2d 37 (1948). Where it is clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree, and where it clearly shows from the evidence that the defendant was either guilty of murder or voluntary manslaughter or innocent, and, where there is no evidence tending to show that the killing was unintentional or accidental, a charge on manslaughter in the second degree is unnecessary and is not proper. Ware v. State, 147 Ala. 699, 41 So. 181 (1906); Ragsdale v. State, 134 Ala. 24, 32 So. 674 (1901); Pierson v. State, 99 Ala. 148, 13 So. 550 (1892). It was not error for the court to refuse to instruct the jury on manslaughter in the second degree. There is nothing in the record tending to show the killing was unintentional or accidental. The defendant did not exhibit any emotions of remorse and regret or offer any assistance to the injured Harper. On the contrary, he told Mrs. Harper that he would blow her brains out if she called an ambulance, and after shooting Mr. Harper the defendant went to his father's house and went to sleep. As a result of the intervention of the shooting, the record is bare as to what happened to LeMirle at that time. The law presumes that a man intends to do what he does. Allen v. State, 148 Ala. 588, 42 So. 1006 (1907). Furthermore, the law infers from the use of a deadly weapon an intent to kill or to do grievous bodily harm. A killing done with a deadly weapon is presumed to have been done maliciously. Cole v. State, 16 Ala.App. 55, 75 So. 261 (1917); Sylvester v. State, 72 Ala. 201 (1882).
The next error alleged by the defendant was that the court erred in qualifying the jurors who had a fixed opinion against capital punishment. The death sentence has been abolished in this State as a form of punishment. Hubbard v. State, Ala., 274 So. 2d 298 (1973). This question is now moot.
We have examined the entire record for error and find none.
Modified and affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | May 10, 1973 |
0ba47ee8-b2e3-4f74-9856-fc385d03568d | Miller v. State | 275 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 675 (1973)
Guyward Wayne MILLER
v.
STATE of Alabama.
SC 264.
Supreme Court of Alabama.
March 29, 1973.
*676 Lawrence B. Sheffield, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen., and P. B. McLauchlin, Jr., Sp. Asst. Atty. Gen., Ozark, for the State.
FAULKNER, Justice.
If a social censurer ever sought a person to give a testimonial against the sensuous delights of "wine, women and song", Michael Ray Foust, age 29 years, of Decatur, Alabama, may be a likely prospect. Mr. Foust attended a party on the evening of January 16, 1971, seven-thirty-ish, at the mobile home of June Reynolds, located at Chandler's Trailer Park, Cullman, Alabama. There were several men and women guests in attendance. Drinks, dancing, crap shooting, and strip poker, inter alia, were the diversive merriments the guests enjoyed as they relaxed from the week's labor just completed. It was Saturday *677 night. Mr. Foust had some drinks, "faded" some dice players, danced, played cards, and with the assistance of a pill called "jar" dropped in his drink, he became anesthetized in one of the bedrooms of the 12' × 60' mobile home. While physically insensible, Foust was "rolled", to use vernacular language. He testified he awoke around 4:30 A.M. the following day when a train came by; that he felt as though there were birds flying around in his head; he couldn't see; his eyes wouldn't focus; he couldn't read a newspaper; the world was blurry. Foust testified that he was robbed of $550.00 cash ($50.00 of which he had won in the crap game), a cashier's check payable to his employer in the amount of $5,580.00; his driver's license, social security card, State National Bank Credit Card, BankAmericard, K-Mart, and Standard Oil credit cards, his library card, pictures of his wife and two children, and two diamond rings which he wore on his fingers, having a combined value of approximately $800.00. The defendant, Guyward Wayne Miller, whom Foust had known for thirteen or fourteen months, and who was also present at the party, was indicted for robbery by the Grand Jury of Cullman County. He was convicted of grand larceny by the petit jury who heard the case on a plea of not guilty. He was sentenced to ten years in the State penitentiary. Miller appealed from the conviction and sentence to the Court of Criminal Appeals on the grounds that the testimony of accomplice Wanda Richter was not sufficient to corroborate the testimony of accomplice Pam Barnes, and that the testimony of June Reynolds and Jane Reynolds was insufficient to corroborate the testimony of accomplices Pam Barnes and Wanda Richter, and therefore the case should have not been submitted to the jury on his motion to exclude the evidence.
On February 14, 1973, the cause was transferred to this court from the Court of Criminal Appeals.
The motion having been denied by the trial judge and the case submitted to the jury, we now turn to the question of whether the trial judge erred. Title 15, § 307, Code of Alabama 1940, Recompiled 1958, provides that a conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient. whether there was any evidence corroborating the accomplices and tending to connect Miller with committing the offense was a question of law for the trial court. Moore v. State, 30 Ala.App. 304, 5 So. 2d 644 (1941); Fagan v. State, 35 Ala.App. 13, 44 So. 2d 634 (1949). The probative force, credibility, and sufficiency of such evidence is for the jury. The proper test for determining whether there was sufficient corroboration of the testimony of an accomplice has been set out in Sorrell v. State, 249 Ala. 292, 31 So. 2d 82 (1947). The court held that, first, the evidence of the accomplice must be eliminated, and then, if upon examination of all other evidence, there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration. This test was followed in Smith v. State, 45 Ala.App. 63, 223 So. 2d 605 (1969). We apply the same test here. It is to be remembered that Wanda Richter and Pam Barnes admitted their involvement in the crime, and both testified on behalf of the State. A portion of Barnes' testimony was as follows:
* * * * * *
The witness further testified that after Miller left the bedroom she met him in another bedroom, and Miller had the money, wallet, and credit cards of Foust in his hands. Miller gave her $20.00 to keep her mouth shut. She hid the wallet and credit cards in her bra. She threw these items from her car along the highway travelling to a trade school which she attended. They were found later by the sheriff whom she had told where they would be.
The testimony of Wanda Richter showed that she had been indicted for robbery for her participation in the crime and had entered a plea of guilty to charges of attempt to commit a felony. She also testified that the defendant had called her into a bedroom at the trailer of Judy Johnson, where they met after leaving the Reynolds trailer, and inquired whether she knew how many one-hundred dollar bills Foust had on him. During the inquiry Miller was holding money in his hands and there were three separate piles of money on the bed. On cross-examination Richter testified that she thought that a substance called "jar" was in the drink given Foust, but that she did not tell anyone that she administered a drug to Foust. However, she had testified on direct examination that she was the person to whom Judy Johnson handed a drink in the Reynolds trailer, and when Johnson shook her head, she set it down. Foust picked up the drink, drank it, and appeared ill. He vomited, shook, and appeared dizzy.
We come now to the question of whether there was any other evidence corroborating evidence tending to connect Miller with the crime. The State introduced the testimony of June Reynolds and Jane Reynolds to corroborate the evidence of accomplices Barnes and Richter. We pretermit the testimony of accomplice Richter to corroborate the testimony of Barnes. Zero plus zero equals zero. June testified about the drinking, dancing, and "cutting up" in her trailer by her guests. She included the defendant, the named accomplices and Judy Johnson, among others. At one time during the evening she looked into a bedroom and saw Foust lying on the bed. Judy Johnson, Barnes, and Miller were there in the room with Foust, who "looked like he was asleep or something." At that time Judy Johnson had her hand in Foust's pocket; Miller was standing by the bed where Foust lay. She left and mingled with the crowd of people, and later left her trailer and went over to Judy Johnson's trailer. She testified on cross-examination that she was not positive who was in her bedroom. She was positive Pam Barnes and Miller were in that room but she didn't know whether Judy Johnson had her hands inside or outside the pockets of Foust.
Jane Reynolds testified that she went to the party in the trailer of her sister June; that she spent most of her time there in the living room except once when she and June went to the back bedroom of the trailer:
She testified that she did not see anything in Miller's hands; that Judy Johnson had her hands on Foust's back.
Since these are the witnesses relied on by the State for corroboration, the question is whether they were also accomplices. We hold that they were not. 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. If he could not, he is not an accomplice. Dykes v. State, 30 Ala.App. 129, 1 So. 2d 754 (1941); Snowden v. State, 27 Ala.App. 14, 165 So. 410 (1936); Ash v. State, 81 Ala. 76, 1 So. 558 (1886). Nothing in the record shows that they could have been indicted for the offense.
The next question to be answered is whether these witnesses, June and Jane Reynolds, furnished sufficient corroborative evidence. We answer in the affirmative. The corroborative evidence need not be strong, nor sufficient of itself to support the conviction. The criterion is that it legitimately tends to connect the accused with the offense. Moore v. State, supra; 23 C.J.S. Criminal Law § 812(1), et seq.
Also, in Moore it was declared that the entire conduct of the accused may be surveyed for corroborative circumstances, and if from them his connection with the offense may be fairly inferred, the requirement of the statute is satisfied. And, under some circumstances proof of proximity and opportunity is held to be sufficient in corroboration of an accomplice. Ross v. State, 74 Ala. 532 (1883); Crumbley v. State, 26 Ala.App. 24, 152 So. 55 (1933).
We hold that the sufficiency of the corroborative evidence of the testimony of the accomplices to take the case to the jury was a question of law addressed to the decision of the court. Moore, supra. The probative force, credibility, and sufficiency was for the jury to decide. It was for the jury to determine the guilt or innocence of the accused. Sorrell v. State, supra; Cobb v. State, 20 Ala.App. 3, 100 So. 463 (1924).
This court should not capriciously disregard the finding of the jury and the judgment of the trial court thereon, unless a legal and valid reason therefor appears (Fagan, supra) and none is apparent in this case.
The final alleged error raised in this appeal is whether the trial court erred in refusing defendant's recross-examination of accomplice Wanda Richter after re-direct by the District Attorney. This was a matter addressed to the sound discretion of the trial court and his ruling was not error. Butler v. State, 38 Ala.App. 527, 93 So. 2d 441 (1956), cert. denied, 265 Ala. 694, 93 So. 2d 445 (1957); Houston v. State, 208 Ala. 660, 95 So. 145 (1923).
Upon review of the entire record we find no error.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | March 29, 1973 |
4e48814c-6963-446d-b75a-b39a72587619 | Tarver v. Household Finance Corporation | 277 So. 2d 330 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 330 (1973)
Norman L. TARVER
v.
HOUSEHOLD FINANCE CORPORATION.
SC 258.
Supreme Court of Alabama.
May 3, 1973.
*331 Fred F. Smith, Jr., Prichard, for appellant.
Perloff, Reid & Briskman, Mobile, for appellee.
BLOODWORTH, Justice.
Plaintiff (appellant here), Norman Tarver, filed suit against defendant (appellee here), Household Finance, alleging that defendant had wrongfully caused a garnishment to be levied against his wages. The complaint was in two counts. Defendant filed demurrer thereto which was sustained. Plaintiff amended, defendant refiled its demurrer thereto, and the demurrer was again sustained. Defendant then filed a motion to dismiss the action. It was granted, and the cause was dismissed. The order of dismissal was thereafter set aside and plaintiff took a non suit, appealing the last adverse ruling on the pleadings to the Court of Civil Appeals. That court reversed and remanded the cause in Tarver v. Household Finance Corp., 47 Ala.App. 273, 253 So. 2d 333, holding amended Count II to be sufficient against the demurrer interposed.
After remandment, plaintiff again amended his complaint by increasing the amount of damages claimed from $5,000 to $10,000. Defendant refiled its demurrer, with some additional grounds, and the same was sustained. Plaintiff then filed "Amended Count III," and increased the amount sued for to $25,000. Defendant refiled its demurrer thereto, which was sustained. Plaintiff then took another voluntary *332 non suit and gave notice of appeal to the Court of Civil Appeals. The case was transferred from that court to this court, because the amount claimed by plaintiff was in excess of the jurisdictional amount of that court. Sec. 11, Act 987, Acts of the Legislature, Regular Session 1969, Vol. II, p. 1744, approved September 12, 1969 (Sec. 111(11), Title 13, Code of 1940, as Recompiled 1958).
The sole question before us is whether the trial court's action in sustaining the defendant's demurrer to "Amended Count III" of the complaint was erroneous or not. We think it was and reverse and remand.
In "Amended Count III," plaintiff seeks damages of $25,000, averring that defendant procured and had issued a writ of garnishment from the General Sessions Court of Mobile County on plaintiff's wages and that at the time the writ of garnishment was issued no valid judgment existed against him in the General Sessions Court of Mobile County, because he had, at the time the writ of garnishment was issued, appealed the judgment on which the garnishment issued to the Circuit Court of Mobile County. Plaintiff further avers that he had appealed an adverse ruling of the Circuit Court of Mobile County in said case to the "Court of Appeals of the State of Alabama," and that no valid judgment existed in the General Sessions Court of Mobile County on which the writ of garnishment could be based. Plaintiff further avers that defendant "knowingly, willfully, intentionally or maliciously procured said writ of garnishment to be issued" for the purpose of extorting money from the plaintiff. As damages, plaintiff avers that he lost time from work, was placed in a bad light with his employer, his job was placed in danger, and he was caused to spend money for attorneys' fees.
Plaintiff's allegations in "Amended Count III" are strikingly similar to those contained in the third count in Dudley v. Stansberry, 5 Ala.App. 491, 59 So. 379 (1912). In that case the then Court of Appeals held the count to be sufficient, stating:
*333 This court distinguished between actions for malicious prosecution and for abuse of process in the case of Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986 (1912), viz:
It is clear that causing a writ of garnishment to be issued for the purpose of extorting money from the plaintiff, as was alleged in "Amended Count III," would be "for a purpose not justified by the law."
In Prosser on Torts (4th ed.), § 121, pp. 856-8, the distinction between the two actions is discussed, viz:
Most of defendant's grounds of demurrer are quite general, but four of them specifically take the point that plaintiff does not aver want of probable cause and that plaintiff does not aver that the original suit, on which this cause is based, terminated in the plaintiff's favor. It will be seen from the foregoing that the termination of the original suit in plaintiff's favor is not an element of a cause of action for abuse of process. It would appear that, contrary to the above-quoted statement from Prosser on Torts, want of probable *334 cause is an element of an action for abuse of process to be averred and proved in Alabama. Dudley v. Stansberry, supra.
Plaintiff sufficiently alleged want of probable cause in the institution of the proceedings in this case in his "Amended Count III." For in the case of United States Fidelity & Guaranty Co. v. Miller, 218 Ala. 158, 117 So. 668 (1928), this court held:
In his "Amended Count III," the plaintiff avers that at the time the writ of garnishment was issued, no valid judgment existed against him in behalf of defendant, Household Finance, in the General Sessions Court of Mobile County, and that defendant "knowingly, willfully, intentionally or maliciously procured said writ of garnishment to be issued and levied upon the plaintiff's wages, for the purpose of extorting from him money * * *." Under our authorities, these averments import that the writ of garnishment was sued out without probable cause.
Thus, plaintiff's "Amended Count III" sufficiently alleges a cause of action for abuse of process, and the judgment of the trial court must be reversed and remanded.
Defendant, however, insists that we may take judicial notice of the records of the Court of Civil Appeals, which would reveal that the original judgment was not "appealed" from the General Sessions Court to the Circuit Court but that a "common law writ of certiorari" was prayed for and issued. No cases are cited for this proposition, nor are we aware of any to this effect. The case at bar is before us on the pleadings alone, and it is on that basis that our decision is based. Since the allegation is that the original action was "appealed," this is a matter to be determined by the trier of fact on the trial of this cause.
As we view plaintiff's "Amended Count III" to be sufficient against the demurrers interposed, the judgment of the trial court in sustaining the demurrers is due to be reversed.
Reversed and remanded.
COLEMAN, McCALL, FAULKNER and JONES, JJ., concur. | May 3, 1973 |
5d8adb98-b42b-460c-a50b-7ae41ddb587a | Coleman v. State | 276 So. 2d 589 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 589 (1973)
John D. COLEMAN
v.
The STATE of Alabama.
SC 271.
Supreme Court of Alabama.
April 19, 1973.
*590 Edward F. Morgan, Tuscaloosa, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Appellant, John D. Coleman, was indicted by the Grand Jury of Tuscaloosa County for the offense of forgery in the second degree in violation of Title 14, § 200, Code of Alabama 1940, Recompiled 1958.[1] Coleman, together with his attorney of record, waived his right to a jury trial. The case was tried by the circuit judge on a plea of not guilty. Coleman was found guilty as charged and sentenced to a year and a day in the State penitentiary of Alabama. He appealed from such conviction to the Alabama Court of Criminal Appeals and assigned two errors. First, he challenged the order of the trial judge overruling the demurrer to the indictment. The thrust of the demurrer was that the indictment showed on its face that the offense sought to be charged was that of violation of the Credit Card Act, Title 14, § 105(4)(i)(ii).[2]*591 The second error assigned is that the State's evidence revealed that Coleman violated the Credit Card Act and that such evidence was insufficient to prove forgery in the second degree. On February 21, 1973, the cause was transferred to this court from the Court of Criminal Appeals.
The indictment reads as follows:
The evidence is summarized in a stipulation announced in open court by Coleman's attorney, Edward F. Morgan:
The Credit Card Act was passed by the Legislature of Alabama in 1969. See 1969 Acts of Alabama, No. 1116, Vol. III, p. 2059. Section II of this Act, which is codified as Title 14, § 105(11), Code of Alabama 1940, Recompiled 1958, provides that:
Forgery in the second degree pertains to the altering, forging, counterfeiting, with intent to injure or defraud of numerous instruments listed in Title 14, § 200, Code of Alabama 1940, Recompiled 1958. Among those listed instruments are "any instrument or writing, being or purporting to be the act of another." The credit card invoice to which Coleman affixed the forged signature is such an instrument.
We do not consider forgery in the second degree inconsistent with violation of the credit card chapter. Each offense is cumulative of the other. Both offenses belong to the same general family of crimes, i. e., obtaining property by false and fraudulent means. In such situation different felonies may be joined in one count in the alternative if the punishment is the same. They may be joined in separate counts of the same indictment even though punishable by different degrees of severity. Flournoy v. State, 34 Ala.App. 23, 37 So. 2d 218 (1948), and cases cited therein.
But we are not here concerned with alternative charges growing out of one offense. The indictment charges only one offense, i. e., forgery of the described credit card invoice.
There can be no doubt that it is within the competency of the legislature to create two or more criminal offenses which may be committed by a single act. Gunter v. State, 111 Ala. 23, 20 So. 632 (1895); Smithson v. State, 34 Ala.App. 343, 39 So. 2d 678 (1949).
*592 In such event, the state may elect to prosecute for either offense, or under either statute. See 22 C.J.S. Criminal Law § 9(1), and particularly footnote 41, where numerous cases from some fifteen states and several federal cases are cited.
In Clonts v. State, 42 Ala.App. 287, 161 So. 2d 155 (1964), the appellant had been convicted of obtaining five automobile tires by false pretense. He was sentenced to imprisonment in the penitentiary for five years. The evidence showed that the tires were obtained by the appellant by using a credit card and driver's license belonging to Dr. Carney who had lost his wallet prior to the appellant's obtaining the tires.
This cause was reversed on other grounds. However, one of the points argued for reversal was that the offense charged was a misdemeanor growing out of the unauthorized use of a credit card and the appellant therefore could not be charged with obtaining goods by false pretense.
In disposing of this point, the then Court of Appeals stated:
We can see no difference in principle between Clonts, supra, a conviction for false pretense, and the present case, a conviction for forgery in the second degree, and Clonts is controlling on the point in question.
Appellant asserts in his brief that it appears that the legislature was addressing itself specifically towards cases like Clonts v. State when it drafted Title 14, § 105(11). We do not agree for the reasons stated above.
We have reviewed the entire record and find no error.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur.
[1] Title 14, § 200. Forgery in second degree, of will, deed, note, bond, bill, order, etc.Any person who, with intent to injure or defraud, falsely makes, alters, forges, counterfeits, or totally obliterates any will of real or personal property, or any deed, conveyance, or other instrument, being or purporting to be the act of another, by which any right or interest in property is, or purports to be transferred, conveyed, or in any way changed or affected; or any bond, bill-single, bill of exchange, promissory note, or any indorsement thereof, the forgery of which does not constitute forgery in the first degree; or any warehouse receipt, or receipt for the payment of money, or any instrument or writing, being or purporting to be the act of another; or any entry in any book account, by which any pecuniary demand or obligation is or purports to be created, increased, discharged, or diminished; or who, with such intent, utters and publishes as true any falsely made, altered, forged, or counterfeited instrument, writing, indorsement, or entry, specified or included in this section, is guilty of forgery in the second degree.
[2] Title 14, § 105(4). Fraudulent use of or representation of authority to use illegally obtained or illegally possessed credit card, forged credit card or revoked, expired or fictitious credit card.A person, who, with intent to defraud the issuer, a person or organization providing money, goods, services or anything of value, or any other person, (i) uses for the purpose of obtaining money, goods, services or anything else of value a credit card, or the information therefrom, obtained or retained in violation of section 105(3) of this title or a credit card which he knows is forged, expired or revoked, or (ii) obtains money, goods, services or anything else of value by representing without the consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued, violates this subsection and is subject to the penalties set forth in subsection (a) of section 105(10) of this title, if the value of all money, goods, services and other things of value obtained in violation of this subsection does not exceed $500 in any six-month period. | April 19, 1973 |
64eca390-bbf0-44a1-aafc-5d7b112d4c21 | Watkins v. State | 277 So. 2d 389 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 389 (1973)
In re Robert WATKINS
v.
STATE.
Ex parte Robert Watkins.
SC 340.
Supreme Court of Alabama.
May 3, 1973.
Patton, Latham & Legge, Athens, for petitioner.
McCALL, Justice.
Petition of Robert Watkins for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Watkins v. State, 50 Ala.App. 111, 277 So. 2d 385.
Writ denied.
COLEMAN, BLOODWORTH, FAULKNER and JONES, JJ., concur. | May 3, 1973 |
75fea32d-87a7-4ba4-b65f-d17800d3b559 | Hart v. State | 274 So. 2d 614 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 614 (1973)
Walter Ray HART
v.
The STATE of Alabama.
SC 274.
Supreme Court of Alabama.
March 15, 1973.
Alton L. Turner, Luverne, for appellant.
William J. Baxley, Atty. Gen., and Randall L. Cole, Sp. Asst. Atty. Gen., for the State, appellee.
FAULKNER, Justice.
This case presents the inexplicable mystery of recidivism. Why does a man, despite repeated warnings and repeated punishments, return again and again to the activity which gets him into trouble?
Walter Ray Hart had been convicted of illegal distilling and had served time in the penitentiary. In 1972 he was again arrested for illegal distilling and again convicted. On September 5, 1972, the trial judge decided not to impose a two-year penitentiary sentence for this second conviction. He placed the defendant on probation with a severe warning:
There was no need to wait five years for matters to come to a head. Exactly forty-three days later, at 2:30 in the morning of October 18, agents caught the defendant once again operating an illegal distillery.
The trial judge ordered revocation of probation, and reimposed the original two-year penitentiary sentence. Defendant appealed to the Alabama Court of Criminal Appeals. On February 28, 1973, the cause was transferred to this court by authority of Title 13, § 111(11a), Code of Alabama 1940, Recompiled 1958.
The sole contention advanced on appeal is that defendant has high blood pressure, and that his confinement to the penitentiary would violate the Cruel and Unusual Punishment clauses of the Alabama and United States Constitutions. (Article 1, § 15, Alabama Constitution; Amendment VIII, United States Constitution.) He cites the case of Newman v. State, 349 F. Supp. 278 (M.D.Ala.1972), to contend that the standard of medical care in the penitentiary is so low as to deprive him of his constitutional rights.
We think appellant's argument too speculative. There is no showing that the alleged shortcomings in medical care in the penitentiary relate to appellant's particular problem, that the situation has not improved since the ruling of the Federal District Court for the Middle District of Alabama, or that appellant could not seek appropriate relief if the potential violations of his rights ever materialized. We cannot discover present error in allegations of a remote future possibility, or agree that a penitentiary sentence in Alabama is unconstitutional per se.
We have carefully reviewed the record in search of error, as mandated by Title 15, § 389 of our Code. No error appearing, the judgment and sentence must be and are affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | March 15, 1973 |
c5c4b727-ae33-46b0-8b4f-ab7f06116db0 | Aldridge v. Puckett | 278 So. 2d 364 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 364 (1973)
Bernard ALDRIDGE
v.
G. W. PUCKETT et al.
SC 179.
Supreme Court of Alabama.
April 19, 1973.
Rehearing Denied June 7, 1973.
*365 Harris, Harris, Shinn & Harris, Decatur, for appellant.
W. L. Chenault, Decatur, for appellees.
MADDOX, Justice.
This case involves the rights of the parties in a portion of a one-acre tract of land which was reserved for a family cemetery in a deed executed in 1911.
The deed contained the following reservation:
The complainants alleged that Bernard Aldridge (appellant) owned land adjacent to the one-acre tract reserved and was encroaching upon it. The evidence showed that approximately one-third of the tract was fenced and bodies were buried within the area. About two-thirds of the tract was claimed by Aldridge. Complainants asked the court to require Aldridge to remove any fences on the entire cemetery tract or the way leading to the tract. Complainants also asked for an injunction against Aldridge to prevent his interference with the cemetery tract or the right of ingress and egress.
Aldridge answered the bill and claimed that he and his wife owned all of the one-acre tract except a portion approximately 90 feet long and 70 feet wide, which Aldridge said was the only portion which had been used as a burying ground. He and his wife claimed ownership of the remainder of the one-acre tract by adverse user. Aldridge admitted complainants had a right to ingress and egress to the portion which had been used as a burying ground, thereby eliminating that as an issue.
The cause was heard ore tenus. Several witnesses testified and several exhibits were introduced into evidence.
The trial court, in a final decree, granted the relief the complainants prayed for. It is from this judgment that Aldridge appeals.
The pertinent facts necessary to a determination of this appeal are not seriously controverted. In 1911, A. G. Puckett reserved the one-acre tract as a family burying ground. Since that time, there have been several interments in a portion of the area reserved. Members of the Puckett family have visited the burial ground and maintained it. No deed in Aldridge's chain of title, which includes the cemetery tract, contains any reservation for the cemetery, as did the deed from Puckett to Blythe in 1911.
Basically, we have a legal question to answer. What rights were reserved in the 1911 deed to the one-acre tract?
Since the beginning of recorded history, it has been found necessary to provide a burial place for the dead. In Kingsbury v. Flowers, 65 Ala. 479 (1880), this Court said:
Unquestionably, under the authority of Kingsbury v. Flowers, A. G. Puckett had the right to devote a part of his property to the burial of his family or friends. The question presented is what interest the parties here have in the one-acre tract. To determine the answer to this question, we must look to the language of the 1911 deed from Puckett to Blythe. It seems that Puckett intended to make a reservation in this deed as opposed to an exception. This *366 Court has had occasion to distinguish between a reservation and an exception. In Frank v. Myers, 97 Ala. 437, 11 So. 832 (1892), this Court opined:
In this case, dealing as we are with a family burial ground, we think that we should treat the language used as a reservation.
It has been held that the establishment of a private or family cemetery may result in the creation of an easement, a trust, a license, or a fee. 130 A.L.R. 250; Annotation: Private or Family Cemeteries, 75 A. L.R.2d 591. Our research does not indicate whether this Court has previously determined the nature of the estate in or the title to a private cemetery, but we believe that Alabama has inferentially followed the rule laid down in Heiligman v. Chambers, 338 P.2d 144 (Okl.), 75 A.L.R.2d 583 (1959), as follows:
In Smith and Gaston Funeral Directors v. Dean, 262 Ala. 600, 80 So. 2d 227 (1955), this Court, in speaking of the rights which are acquired in a burial lot, said:
In Union Cemetery Co. v. Alexander, 14 Ala.App. 217, 69 So. 251 (1915), it was said:
Based on what we construe the majority view to be, we conclude that under the facts here presented, an easement in the one-acre tract was reserved and that the *367 easement and rights to the entire one-acre tract created under the 1911 deed survived, since there was an abundance of evidence from which the trial court could have found that the cemetery had not been abandoned. We find, therefore, that the trial court did not err in granting the relief sought by the complainants. The affirmance of the judgment, however, does not necessarily indicate that we agree with the reasons given by the trial court in reaching such result.
The judgment of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | April 19, 1973 |
053e317d-9c9c-49f3-b6b1-0155ba28472c | Conway v. Title Insurance Company | 277 So. 2d 890 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 890 (1973)
Maudine D. Neese CONWAY
v.
TITLE INSURANCE COMPANY, a corporation.
SC 78.
Supreme Court of Alabama.
May 10, 1973.
*891 Samuel L. Stockman, Mobile, for appellant.
Charles B. Bailey, Jr., Mobile, for appellee.
HARWOOD, Justice.
This is an appeal from a decree of the Circuit Court of Mobile County, Alabama, adjudging and decreeing in substance that any damage suffered by the appellant here was not within the coverage of a title insurance policy issued by Title Insurance Company to the appellant, Mrs. Maudine D. Neese Conway.
The evidence introduced below amply tends to show that on 7 May 1965, this appellant purportedly foreclosed a mortgage given by Gulf Development Company to secure a loan made to Gulf by the appellant. The land covered by the mortgage included a large number of lots in two subdivisions being developed by Gulf, including Lot 8 of the First Unit of Gulf Hills subdivision. Lot 8, with the house thereon, had been sold by Gulf to Francis Andrews in 1957 for $29,500.00. Andrews had made improvements on the house and lot amounting to $5,500.00.
As Gulf would sell the lots in its subdivision they would routinely be released from the mortgage upon the payment of $1,200.00 to Mrs. Conway, the mortgagee. Every lot sold by Gulf in the subdivisions had been so released except Lot 8 sold to Andrews. The appellant Conway was fully aware of this releasing procedure. Unfortunately for Andrews he neglected to obtain a release of Lot 8 from the mortgage upon purchasing it.
Mrs. Conway's husband, who is an attorney and was her agent, admitted that no attempt was made to give Andrews actual notice of the foreclosure sale because of fear that Andrews would seek to obtain a belated release of his lot from the mortgage by the payment of $1,200.00. The evidence also showed that Mrs. Conway became aware of the sale of Lot 8 to Andrews and that his lot had not been released from her mortgage sometime prior to 8 August 1964, and that she became personally aware that Andrews was occupying the home on Lot 8 when in August 1964 she moved into a house in Gulf Hills subdivision *892 located about a block from Andrews' house on Lot 8.
Gulf being in default on the mortgage, Mrs. Conway, on 7 May 1965, purportedly foreclosed the Gulf mortgage and obtained a foreclosure deed, having bid $50,000.00 at the mortgage sale. The next day she procured from Title Insurance Company the policy of title insurance here sued on.
The purported foreclosure sale was set aside by the Circuit Court of Mobile County because of the misconduct of appellant or her agents in attempting to conceal from Andrews the fact that he could clear his title by paying $1,200.00 for a release of his property from the mortgage. This decree was affirmed by this court on 28 May 1970, on the basis that the appellant engaged in conduct deliberately calculated to conceal from Andrews the existence of a mortgage lien upon his home, i. e., Lot 8, and also that Mrs. Conway had attempted to pervert the power of sale contained in the mortgage from its legitimate purpose and to use it for the purpose of oppressing the debtor and thereby obtain the property for herself. See Conway v. Andrews, 286 Ala. 28, 236 So. 2d 687.
This same title defect was present and known to the appellant or her agents at the time she procured the policy of title insurance from the appellee.
This appellant, still seeking to obtain benefits from her conduct already adjudged wrongful in Conway v. Andrews, supra, brought an action at law for damages against Title Insurance claiming she had suffered damages resulting from a defect in the title to the property which had been insured by Title Insurance.
On motion of Title Insurance this suit was transferred to equity. Thereafter Title Insurance filed its bill in equity praying that the court declare that the defect against the property insured, insofar as Lot 8 was concerned, was created by Mrs. Conway, and there was no liability on the part of Title Insurance Company under the policy, and also that Mrs. Conway should not recover under the policy here involved because the defect in the title was known to Mrs. Conway and was not of public record, and had never been made known to the insurer in writing, and further that such defect resulted from the fact that Andrews was in possession of the property at the time the policy was issued.
The policy issued to Mrs. Conway, and here being considered, insured her against loss or damage not exceeding $50,000.00, which she could sustain by reason of "any defect in, or lien, or encumbrance on the title to the estate or interest covered hereby in the land described or referred to in Schedule A, existing at the date hereof, * * * excluded from coverage in Schedule B, existing at the date hereof, * * * subject to the provisions and Schedules A and B, and to the Conditions and Stipulations hereto attached; all as of the effective date of this policy."
It was stipulated in Schedule B that:
Under the "Exclusions from Coverage" provisions found in Schedule B, it is provided in paragraph 2(d):
After a study of this record, it is our conclusion that the findings of the Chancellor *893 are amply supported by the evidence, and that the decretal portion of his decree correctly applied the governing legal principles to the facts found.
It is not uncommon for title insurance policies to contain clauses excluding or excepting from coverage "defects, liens, encumbrances, or adverse claims against the title as insured, or other matters" when such defects are created, suffered, agreed to or assumed by the insured, and are known to the insured at the date of the policy, but are not shown by the public records, nor disclosed to the insurer by the insured in writing.
Such limiting conditions are not unreasonable, are set forth in clear and unambiguous language, and have been recognized repeatedly. Lawyers Title Ins. Corp. v. Research Loan and Investment Corp., 8 Cir., 361 F.2d 764; Alabama Title and Trust Co. v. Millsap, 5 Cir., 71 F.2d 518. Such exceptions and limiting provisions either in the language of the present policy, or in language of similar import, have been held effective because of the misconduct of the insured in Hansen v. Western Title Ins. Co., 220 Cal. App. 2d 531, 33 Cal. Rptr. 668, 98 A.L.R.2d 520; First National Bank and Trust Co. v. New York Title Ins. Co., 171 Misc. 854, 12 N.Y.S.2d 703; Rosenblatt v. Louisville Title Co., 218 Ky. 714, 292 S.W. 333; Feldman v. Urban Commercial, Inc., 78 N.J.Super. 520, 189 A.2d 467; Brick Realty Co. v. Guarantee and Trust Co., 161 Misc. 296, 291 N.Y.S. 637. See also annotation in 98 A.L.R.2d pp. 527 et seq.
Appellant's assignments of error 1, 2, and 3, are all to the effect that the lower court erred in decreeing that appellant's loss was not a loss against which the appellant was insured by title policy. We find no merit in these assignments.
Appellant's assignment of error 4 is to the effect that the court erred in decreeing that the appellant (Mrs. Conway) was not entitled to relief prayed for in her cross bill filed in the equity proceedings.
Essentially, the cross bill is merely a suit on the policy here sued on, and prays that the court find and decree that Title Insurance Company is liable under the policy, and further prays that damages be awarded the cross complainant in the amount of $60,000.00.
Relief under the cross bill would be dependent upon the insured (Mrs. Conway) being afforded coverage under the title policy; if there was no coverage, then the relief sought in the cross bill must of necessity fail.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX, and FAULKNER, JJ., concur. | May 10, 1973 |
565dfac5-d9fb-431e-959f-3f280aab965f | Kittrell v. State | 279 So. 2d 426 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 426 (1973)
William David KITTRELL
v.
The STATE of Alabama.
SC 357.
Supreme Court of Alabama.
June 7, 1973.
Jacob Walker, Jr., Opelika, for appellant.
William J. Baxley, Atty. Gen., Montgomery; and J. Robert Ramsey, Special Asst. Atty. Gen., Dothan, for the State.
*427 FAULKNER, Justice.
There is a small mobile home on Uniroyal Road, Lee County, Alabama. It was here, on January 29, 1971, that William David Kittrell shot James Robert Stearns to death.
There are many unusual details in the case. It appears that Kittrell, a 30-year-old truck driver, had been thrown out of his house by his wife, and went to stay with his friend Stearns, 45 years of age, in the mobile home. Kittrell was ill, and was lying in bed in his undershorts. Stearns wanted to minister to his sick friend:
According to Kittrell, Stearns shortly thereafter came at him with a knife, whereupon Kittrell shot him to death.
Kittrell then took guns, rings, and wristwatches owned by Stearns, drove away in Stearns' car, and subsequently sold or gave away the dead man's property to various people later that evening. The next day Stearns' body was found, and Kittrell was arrested. Kittrell was tried by jury in Lee County, convicted of second-degree murder, and sentenced to thirty years in the penitentiary. He appealed to the Alabama Court of Criminal Appeals, and the cause was thereafter transferred to this Court.
On appeal, the principal contention raised is that the trial judge improperly refused numerous jury charges offered by the defendant.
The following charge was given at the request of the defendant:
The defendant then substituted the phrase "to use such force as was necessary to stop such homosexual assault upon him" for "to defend himself ... according to the rules of law applicable to self-defense..." He submitted this as a separate charge, which was refused by the trial judge.
The dispute here concerns two areas for permissible use of forceself-defense, and prevention of a felony. In self-defense, of course, a person may use only such force as appears reasonably necessary under the circumstances. Higdon v. State, 25 Ala.App. 209, 143 So. 213 (1932). In preventing a felony, it is also clear that force may be used. Carroll v. State, 23 Ala. 28 (1853). Appellant seems to suggest that greater force may be used to prevent a felony than would be allowed in self-defense, thus justifying his additional jury charge. He cites dictum from Oliver v. State, 17 Ala. 587 (1850).
Although no authority directly on point has been called to our attention, we think the standard of force allowable is the same in both self-defense and prevention *428 of a felony. The consequences of allowing grossly disproportionate force in preventing felonies would be too grave.
The proffered charge that defendant could use "such force as was necessary to stop such homosexual assault" was properly refused as either a misleading or a redundant statement of the law. If appellant meant to imply that any force would be allowable, regardless of circumstances, as he in fact argues in his brief, his charge was misleading or incorrect. If it does not so imply, it is merely repetitive of the charge, set out above in this opinion, that was in fact given at defendant's request. Title 7, § 273, Code of Alabama 1940, Recompiled 1958.
Appellant's argument on jury charges focuses exclusively upon the one refused charge discussed above. We have undertaken to review the other refused charges, and all of them were properly refused.
In this case, the jury would have been fully justified in finding self-defense; on the other hand they were fully justified in finding no self-defense. There was the defendant's testimony about the knife and/or sexual attack by the decedent. There was testimony by a friend that defendant told him, regarding the killing,
The facts were conflicting, the jury received the issue with correct instructions of law, and it was purely a question for them.
During the trial, defendant's undershorts, jacket, pants, and white socks were admitted into evidence. The state toxicologist testified he had found bloodstains thereon of the same type of blood (Type A) that ran in the veins of the decedent. The trial judge later learned that the analytical methods of the state toxicologist had resulted in complete removal of the stains from these articles of clothing. He thereupon ordered the clothing removed from evidence. Appellant complains that the jury's seeing this clothing injected ineradicable "poison" into the trial. We do not agree. In a trial where photos of the bloody corpse of the victim were in evidence, the prejudicial effect of seeing undershorts, socks, trousers, and a jacket from which the blood had been removed is, at best, dubious.
We discover no error in the record.
Judgment and sentence affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | June 7, 1973 |
78c33211-4012-498a-a923-32cf7eb4319f | Jefferson Standard Life Insurance Co. v. Pate | 274 So. 2d 291 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 291 (1973)
JEFFERSON STANDARD LIFE INSURANCE COMPANY, a corporation,
v.
Linda Hall PATE.
SC 57.
Supreme Court of Alabama.
March 8, 1973.
*292 Spain, Gillon, Riley, Tate & Ansley and Ollie L. Blan, Jr., Birmingham, for appellant.
Wheeler & Christian, Birmingham, for appellee.
McCALL, Justice.
Linda Hall Pate, the appellee, brought this action on the double indemnity agreement *293 attached to and forming a part of a life insurance policy, issued by the appellant Jefferson Standard Life Insurance Company to her now deceased husband, Thomas Attaway Pate, the named insured. He died from a shotgun wound inflicted in the upper area of the right chest. The appellant paid the appellee as beneficiary under the policy the face amount thereof but declined to pay under its double indemnity agreement. This, in essence, provides that the company will pay the beneficiary an additional amount equal to the face amount of the policy, if the death of the insured should result in consequence of bodily injuries effected directly and independently of all other causes through external, violent, and accidental means. The agreement further provides that this additional amount shall not be payable if the death of the insured results directly or indirectly from suicide or any attempt thereat whether sane or insane. The gravamen of the appellee's single count complaint is that the insured died as a result of an accident which was effected directly and independently of all other causes through external, violent and accidental means. The insurance company pleaded in short by consent the general issue, contending that death was the result of intentional suicide. After the close of the case, the jury returned a verdict in favor of the appellee for the full amount sued for, with interest added. The appellant appeals from the judgment entered on that verdict.
The appellant insists that there was not even a scintilla of evidence upon which to submit the case to the jury and that its requested affirmative charge should have been given. However, the appellant states that the real issue is that the evidence was insufficient to sustain the burden of proof cast on the appellee to establish that Thomas Attaway Pate met his death as the result of accidental means and its motion for a new trial should have been granted. The issue so made necessitates our setting out a resume of the circumstances attending the insured's death.
At the time of his death, the insured was thirty-four years of age, married to the appellee, and residing with her and their three minor children at Empire, Alabama, in a neighborhood where his younger brother, another relative and several friends lived close by. There was a mortgage on his home and automobile, and he owed a loan of $1200. He had no financial troubles. He was gainfully employed by South Central Bell and had been recommended for promotion. So far as is known he was physically and mentally well, was of good personal habits, had manifested no depression or despondency, or emotional stress and had no marital or domestic bothers. On the morning prior to his death that afternoon, he returned to his home about 1:00 a. m. from his employment and went to bed. He arose around six or seven a. m. and after a visit and an automobile drive about the crops with his neighboring brother, who operated a farm adjoining him, he had some breakfast. He then sat around his house, after which he went back outside while his wife was canning corn and doing some washing. At sometime during the morning he had a can of beer, or two or three drinks of whiskey. He telephoned his employer that he would not be in for work that Saturday afternoon. He had an arrangement which allowed him to select his two off days each week. He told his wife that he was going to farm. He had his own garden and had also on occasions voluntarily helped his younger brother in his farm operation. He went fishing and hunting, during season, whenever he had an opportunity. After the telephone call to his employer, he sat in the den of the house and smoked. His wife was preparing lunch about 11:30 or 12:00 o'clock, and later about 1:00 or 1:30 p. m. while she and their nine year old son were at the table eating, the insured walked by them and went into his and his wife's bedroom. Within a few minutes, she heard a muffled sound. She was only able to crack the door and through this, she saw part of her husband's *294 legs extended on the floor. No one was in the room when the fatal shot was fired and there were no eye witnesses to the shooting. The insured was gasping for breath and near death when the first person reached him. He was partly sitting and partly leaning against the wall with his shotgun lying along his right side with the barrel pointing toward the wall against which his back was leaning. The exact position of the gun with relation to his body varies with the testimony of the witnesses. The breach was partly open with an exploded shell sticking out of the chamber. There were powder burns on the side of the wound nearer the center of his chest. Such indicated a contact wound where the muzzle of the gun barrel was against the chest on the outward side and slightly away from the chest on the inward side toward the chest center. A live shell was found in the magazine and was ejected by rearward action of the breach lever. There was testimony that he kept his 16 gauge automatic Browning loaded on the right side, in the bedroom closet behind his wife's clothes. He kept his work clothes hung on a nail inside the closet door. Within the previous two weeks he had shot at something killing his chickens and disturbing his garden, and that morning he had said that he was going to try to catch some rabbits in his garden before he went to work. There was some testimony of a previous malfunction and misfiring of his shotgun. The coroner and detective investigating the case were unable to find anything wrong with the gun. While they were in the insured's bedroom the detective found a notebook lying on the bed. It was of a sort furnished by his employer, a number of which the insured had given his family. On the first page appeared the partly written and partly printed words "Don't forget God." The death certificate which was in evidence gave suicide as the cause of death and described the injury as: "Shot self with shotgun." The coroner and detective testified orally that in their opinion suicide was the cause of death. There was entire absence of motive shown for suicide.
There is a presumption of law against a normal and sane person committing suicide, Jefferson Standard Life Ins. Co. v. Wigley, 248 Ala. 676, 29 So. 2d 218 (1947); Atlantic Coast Line R.R. Co. v. Wetherington, 245 Ala. 313, 16 So. 2d 720 (1944); New York Life Ins. Co. v. Beason, 229 Ala. 140, 155 So. 530 (1934); Protective Life Ins. Co. v. Swink, 222 Ala. 496, 132 So. 728 (1931); Missouri State Life Ins. Co. v. Roper, 5 Cir., 44 F.2d 897 (1930); New York Life Ins. Co. v. Turner, 213 Ala. 286, 104 So. 643 (1925); Penn Mutual Life Ins. Co. v. Cobbs, 23 Ala.App. 205, 123 So. 94 (1929); Law of Evidence, McCormick, § 309, p. 643, but there are situations when the presumption is applicable and on the contrary, there are situations when the presumption has no field of operation. Jefferson Standard Life Ins. Co. v. Wigley, 248 Ala. 676, 29 So. 2d 218; Fleetwood v. Pacific Mutual Life Insurance Co., 246 Ala. 571, 21 So. 2d 696, 159 A.L.R. 171. When the presumption has applicability, we have said this about its force:
We have observed however that when the evidence as to suicide does not otherwise show a conflict, or conflicting inferences, the presumption against suicide is not sufficient of itself to create such a conflict. See Mutual Life Ins. Co. of N. *295 Y. v. Maddox, 221 Ala. 292, 128 So. 383. Nor may the presumption be indulged in where evidence of suicide is direct and undisputed, and no two inferences can be reasonably drawn therefrom, if the jury believe it. Sovereign Camp, W.O.W. v. Hackworth, 200 Ala. 87, 75 So. 463.
We stated the rule more concisely in Fleetwood v. Pacific Mutual Life Ins. Co., 246 Ala. 571, 574, 21 So. 2d 696, 698, as follows:
The above rule is also quoted in Jefferson Standard Life Ins. Co. v. Wigley, 248 Ala. 676, 678, 29 So. 2d 218.
The appellant insists in brief that there was direct and positive evidence of suicide because of: (1) the certified copy of the death certificate listing the insured's death as suicide, (2) the testimony of Detective Graham and Coroner Butler expressing their opinions that suicide was the cause of death, (3) the nature of the wound, (4) the note found on the bed, "Don't forget God," (5) the absence of any gun cleaning gear, (6) the tests which were made of the gun immediately after the death of the insured, (7) the fact that the exploded shell had lodged in the gun chamber, and (8) the fact that the insured had notified his employer that he would not report for work that day.
With reference to the evidentiary effect of the death certificate, we observe that the pertinent part of the statute, Tit. 22, § 42, Code of Alabama, Recompiled 1958, as amended, Acts of Alabama, 1969, p. 2074, provides as follows:
In the case of Fleetwood v. Pacific Mutual Life Ins. Co., 246 Ala. 571, 577, 21 So. 2d 696, 701, after looking at all the evidence, the court concluded:
The court held that the death certificate, showing suicide, was not only not inconsistent with the facts shown by the evidence, but strengthened by them. Under the circumstances, the court said that the death certificate constituted direct and positive evidence of suicide and would prevail over the presumption against suicide unless the plaintiff went forward with the case and introduced rebuttal evidence, admitting of reasonable conflicting inferences against suicide.
In Jefferson Standard Life Ins. Co. v. Wigley, 248 Ala. 676, 29 So. 2d 218, after reviewing in detail and analyzing the pertinent evidence, the court found there were no conflicting inferences in the evidence as to the insured's death being the result of suicide. We therefore concluded that the trial court was in error in charging on the presumption against suicide and reversed *296 the case. It is true that in Wigley, supra, the court said:
However we think that the court made this observation in Fleetwood and Wigley in the light of the facts peculiar to those cases, that is, where there were no conflicting inferences from the evidence against suicide, the evidentiary value of the death certificate was so strengthened as to prevail over the presumption against suicide. But the presumption against suicide which in our opinion is applicable in the instant casecannot be overcome by the introduction of the death certificate showing suicide where there otherwise are conflicting inferences against suicide, and the force of the presumption as substantive evidence continues until the testimony is sufficient, in the judgment of the jury, to overcome it. The burden in a civil case to overcome the presumption is reasonable satisfaction from the whole evidence, giving due weight to the presumption in the light of judgment and experience. Mutual Life Ins. Co. of N. Y. v. Maddox, 221 Ala. 292, 128 So. 383. It follows that a jury question is presented as here, where the presumption against suicide has a field of operation.
The authenticated death certificate is simply what the statute, Tit. 22, § 42, Code of Alabama, Recompiled 1958, constitutes it to be, that is, prima facie evidence of what it purports to show as the cause of death. Sorrow v. Industrial Life and Health Insurance Co., 259 Ala. 544, 68 So. 2d 43. The statute recites that the certificate, or copy, is "prima facie evidence" and not that the certificate is direct evidence.
In Independent Life and Accident Ins. Co. v. McGehee, 284 Ala. 394, 400, 225 So. 2d 805, 811, this court said:
Again in Jefferson Standard Life Insurance Co. v. Wigley, 248 Ala. 676, 29 So. 2d 218, this court said:
Therefore the certificate may be said to be direct and positive evidence of what it purports to show only when there are no conflicting inferences against suicide and it was in that context that it was held to be direct and positive evidence in Fleetwood and Wigley, supra, otherwise it is prima facie evidence by force of the statute, Tit. 22, § 42, supra.
In Sovereign Camp, W.O.W. v. Dennis, 17 Ala.App. 642, 87 So. 616, the court said:
In Sovereign Camp, W.O.W. v. Ward, 196 Ala. 327, 71 So. 404, this court said:
The opinions of the detective and coroner that suicide was the cause of death were admitted into evidence in the present case without objection. However, any statement by these witnesses that the insured killed himself was a conclusion based on mere hearsay. Sovereign Camp, W.O.W. v. McLaughlin, 237 Ala. 33, 185 So. 378; Sovereign Camp, W.O.W. v. Adams, 204 Ala. 667, 673, 86 So. 737. This could not be said to be direct evidence so as to fully overcome the presumption against suicide as they did not see the shooting.
As to the note "Don't forget God" on the front page of a paperback notebook in which there was recorded some business data by the deceased, there were conflicting tendencies in the evidence as to its being in the insured's handwriting, and no evidence as to the time when the note was written. The probative value and weight of the note were matters addressed to the jury's consideration along with other material circumstances in the case.
None of the other matters in evidence insisted on in brief by appellant as constituting direct and positive evidence was entirely consistent with suicide and without conflicting inference against it. Nor do these matters when considered collectively with the other evidence in the case, lead to the lone conclusion that the insured intentionally killed himself. The entire evidence was circumstantial.
The facts found in the opinion in the case of Mutual Benefit Health and Accident Association of Omaha v. Reid, 279 Ala. 136, 140, 182 So. 2d 869, are in many respects quite similar to those of the instant case and there it was decided that the trial court did not err in finding that the death was accidental. That opinion cites Penn Mutual Life Insurance Co. v. Cobbs, 23 Ala.App. 205, 123 So. 94, where it was said:
We think that the evidence in this case as to the cause of death being accidental or suicide has conflicting inferences, that therefore the presumption against suicide has a field of operation which was not overcome by the prima facie evidence of suicide afforded by the certified copy of the death certificate, that the trial court did not err in submitting the issue of suicide to the jury and instructing the jury as to the presumption against suicide, and *298 that there was ample evidence to sustain the jury's finding that the death of the insured was accidental. The trial court did not err in refusing the general affirmative charge, both with and without hypothesis, requested in writing by the appellant.
The appellant's refused charge 12 reads as follows:
The case of Independent Life & Accident Ins. Co. v. McGehee, 284 Ala. 394, 225 So. 2d 805, is cited as authority for the charge, but the charge in that case is not the same as the refused charge in this case which instructs the jury that they may disregard the witness' testimony in its entirety, "or any part thereof which you are reasonably satisfied from the evidence the witness has willfully testified falsely." The charge is bad because it is susceptible of meaning that the jury may discard any part of the witness' willfully false testimony. In Dixie Highway Express, Inc. v. Southern Ry. Co., 286 Ala. 646, 649, 244 So. 2d 591, 594, we said:
The substance of the appellant's refused charge 15 is that a certified copy of the record of the insured's death kept by the Bureau of Vital Statistics is presumptive evidence of the facts therein stated and proved prima facie that death came by suicide. Without determining its legal correctness, we note that this charge is substantially covered in appellant's given charge 13. The refusal of the charge was not error. Rule 45, Revised Rules of Practice in the Supreme Court, Appendix to Title 7, Code of Alabama, 1940; Birmingham v. Bowen, 254 Ala. 41, 47 So. 2d 174; Ferguson v. Callahan, 262 Ala. 117, 76 So. 2d 856.
In its oral charge the court did not state that the death certificate was prima facie evidence but that a certified copy may be received as evidence, and is some evidence of what it states. The subject of its being prima facie evidence however was fairly and fully covered by the requested given charge 13. Frith v. Studdard, 267 Ala. 315, 101 So. 2d 305.
The judgment of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. | March 8, 1973 |
9def1a5a-a104-4eae-ac91-e02b0d483a6d | City of Montgomery v. Brendle Fire Equipment, Inc. | 279 So. 2d 480 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 480 (1973)
CITY OF MONTGOMERY, a municipal corporation,
v.
BRENDLE FIRE EQUIPMENT, INC., a corp.
SC 65.
Supreme Court of Alabama.
March 29, 1973.
Rehearing Denied July 5, 1973.
*482 Drayton N. Hamilton, Joseph D. Phelps, Walter J. Knabe, Montgomery, for appellant.
Miller & Hoffmann and J. F. Lassiter, Montgomery, for appellee.
HEFLIN, Chief Justice.
This is an appeal from the Circuit Court of Montgomery County, in Equity, wherein an injunction in favor of the appellee-complainant Brendle Fire Equipment, Inc. (who may hereinafter be referred to as "Brendle") was entered.
On May 28, 1971, Brendle filed a bill in equity seeking injunctive relief with regard to competitive bid practices by the appellant-respondent City of Montgomery (who may hereinafter be referred to as "City" or "City of Montgomery"). The bill of complaint averred that the bid procedure on a firefighting equipment bid was improper in that the solicitation to bid had not been posted on the bulletin board outside the purchasing office, no hour was announced for public opening of the bids, and the bids which were received were not sealed. In addition, the bill averred that the conflict of interest provisions of Title 55, § 508, Code of Alabama, 1940, as amended (Recompiled 1958-1971 Pocket Supplement), had been violated in that a member of the Board of Commissioners of the Housing Authority of the City of Montgomery was the President of, and had a financial interest in, Southeast Fire Equipment Company, Inc., one of the competitors in the bidding. However, neither Southeast Fire Equipment Company, Inc., nor its president, Willie F. Hamner, were made parties to the action.
The particular bid upon which Brendle bases its bill was for firefighting equipmentScott Air Parks and reserve tanks purchased on August 31, 1970 under order number 6998. Three bids were received by the City: one from Brendle ($7,500.00), another from Southeast Fire Equipment Company ($7,605.00) and a third from Jack Cocke & Company, the successful low bidder ($7,245.95). Jack Cocke and Company was not made a party to the bill.
As to this particular transaction, Brendle's evidence tended to show, and the City's evidence did not contradict it, that the forms for soliciting bids were not used; that nothing was posted on the bulletin board giving notice of the bids; that when the bid came in from Jack Cocke & Company the other bids may have been open and subject to viewing by the bidder; and that there was no public opening at a designated time and place.
Brendle introduced evidence of past practices of the City which tended to show that the former had not received solicitations for bids from the latter, although Brendle had repeatedly requested such solicitations concerning firefighting equipment.
While the City does not contradict much of the evidence of past practices it did establish that following the retirement of a long-time employee of the Purchasing Department, changes were instituted by which bid forms were mailed to all persons that evidenced an interest in bidding; each bid form was posted on the bulletin board; bids were publicly opened in the Purchasing Department office at 11:00 a. m. on the announced date; and bid forms reflected the time that the bids would be opened. Further, the City Commission on February 1, 1972 passed a resolution requiring that all bids for purchases in excess of $500.00 would be opened and awarded in Commission meetings. Since the passage of such resolution by the City Commission there was testimony that all such bids had been opened in regular Commission meetings in *483 the presence of the Commissioners at 11:00 a. m. on Tuesday of each week.
Mr. Harold Wallace Brendle, the President of Brendle (Brendle Fire Equipment, Inc.the appellee-complainant) testified in substance that after the new city administration had gone into office he was allowed to bid on all purchases in which he indicated an interest. He stated that his "complaint about what had happened was before Mayor Robinson took office". While the bid procedure had changed, he, nevertheless, had no assurance that such illegal former practices would not be continued in the future.
The trial court granted the relief prayed for by Brendle in the following language:
It is from this decree that appeal was taken. The City had interposed a demurrer to the bill on the ground that there was no equity in the bill, which demurrer was overruled by the lower court. This ruling has been assigned as error. This state has long recognized the rule that a bill is not without equity if one aspect of the bill contains equity. Raleigh Realty Co. v. Lagomarsino, 237 Ala. 315, 186 So. 692 (1939); Bradford v. Fletcher, 248 Ala. 483, 28 So. 2d 313 (1946); Taylor v. Jones, 280 Ala. 329, 194 So. 2d 80 (1967). This requires an examination of the bill so as to determine its aspects.
The first aspect concerns a conflict of interests revolving around Willie F. Hamner, the President of Southeast Fire Equipment Company, who unsuccessfully submitted a bid on the equipment purchased by the appellant-respondent, which bid was considered by the latter. At the time Hamner submitted the bid for Southeast Fire he was a member of the Board of Commissioners of the Housing Authority of the City of Montgomery, and held a financial interest in Southeast Fire. This aspect of the bill of complaint refers to Title 55, § 508, Code of Alabama, 1940, as amended (Recompiled 1958Pocket Supplement).
In the other aspect of its bill Brendle charges the City of Montgomery with violating Title 55, section 511, Code of Alabama, 1940, as amended (Recompiled 1958-1971 Pocket Supplement), which provides as follows:
Brendle's bill of complaint alleges that "no notice of the proposed purchase was posted on a bulletin board maintained outside the purchasing office, no hour for public opening of the bids concerned was advertised, the said bids were not sealed in conformity with the required procedure, and there was no public opening of said bids".
The attention of this court is first directed to that aspect of the bill in which Brendle charges a violation of Title 55, section 511, supra. Brendle sought and was granted an injunction under Title 55, section 515, Code of Alabama, 1940, as amended (Recompiled 1958-1971 Pocket Supplement), which provides for suit to enjoin the execution of a contract made in violation of Chapter 22 (under which Section 511, as well as Section 508 are grouped) as follows:
The parties have not cited, and this court has been unable to find, any reported case construing section 515 and the parties to the case at bar have presented conflicting interpretations of this section
The City interprets this section as providing for injunctive relief only where a particular contract violative of Chapter 22 is attacked. It reasons that because Brendle is not seeking to enjoin the execution of any particular contract in the case at bar, but rather seeks an injunction preventing future contracts of such a nature as would violate said chapter, section 515 can be of no aid to Brendle and thus, a bill for such injunctive relief is without equity.
This court finds the language of section 515 to be unambiguous, and under such circumstances the "expressed intent must be given effect, and there is no room for construction". Alabama Industrial Bank v. State, 286 Ala. 59, 237 So. 2d 108 (1970); Ex parte Bozeman, 183 Ala. 91, 63 So. 201 (1913); Kimbrell v. State, 272 Ala. 419, 132 So. 2d 132 (1961). Under the statutory language it appears that the City's interpretation is correct. The statute makes available the equitable remedy of an injunction on a "particular contract". This wording does not comtemplate enjoining future contractual arrangements. Also, the statute provides for enjoining the "execution" of any contract which is violative of Chapter 22, not the formation of contracts to be made in the future which may run afoul of Chapter 22. To interpret the statute as Brendle suggests would unduly strain the construction of unambiguous language and provide a remedy not intended by the legislature.
It necessarily follows that the aspect of Brendle's bill under which it charges the City with violating the provisions of section 511 may not be used as a basis for granting an injunction under section 515 as to future contracts, as such is not authorized by section 515.
The bill avers that Title 55, section 508, supra, has been violated in that Southeast
*485 Fire Equipment Company submitted a bid on the equipment purchased under order number 6998, which was considered by the City, and at the time of submitting the bid, the President of said company, Willie F. Hamner, was a member of the Board of Commissioners of the Housing Authority of the City of Montgomery.
Title 55, section 508 provides as follows:
This language prohibits members of "the governing boards of instrumentalities of... municipalities", from having any financial interest in the "purchase of or contract of any personal property or contractual service". Section 508 prohibits members and officers of many other governmental entities and instrumentalities from having similar interests. However, this section is silent as to whether a member or officer of any of the listed governmental entities or instrumentalities is prohibited from having such an interest in all of the listed governmental entities and instrumentalities or any group of them, or whether the prohibition applies only to the entity or instrumentality of which such person is a member of officer.
The lower court found that Hamner, as a member of the Board of Commissioners of the Housing Authority of the City of Montgomery, was "a member of a governing board of an instrumentality of a municipality", and enjoined the City of Montgomery "from receiving bids pursuant to Title 55, §§ 506-517, Code of Alabama, as amended, from any member of the Housing Authority of the City of Montgomery or from any entity in which such member would have an interest or an ownership therein". This decree of the lower court held in substance that the prohibition against such interests included all of the entities and instrumentalities listed in said section 508.
The City has raised questions concerning the lower court's construction and interpretation of Section 508. It argues that to follow the construction given by the lower court would lead to absurd results which the legislature neither contemplated nor intended. For example, such construction would preclude the City from receiving a bid from a hospital insurance company in connection with an insurance contract of medical care for members of the Fire Department where one or more shares of stock in the hospital insurance company were owned by a member of the Library Board. Such construction further would prevent the Park and Recreation Board from purchasing fencing for a tennis court if a member of the Water Works & Sanitary Sewer Board owned stock in a successful bidding fence company.
In Trailway Oil Company v. City of Mobile, 271 Ala. 218, 122 So. 2d 757 (1960), where statutory construction was an issue, this court stated a sensible construction should be given to a statute and any general terms appearing in the statute should be limited in their application so as not to lead to absurd consequences.
In establishing the language contained in Section 508 the legislature endeavored to prevent members of governing bodies from having any conflict of interests pertaining to the purchase of, or contract for, any personal or contractual service. The *486 matter of conflict of interests has troubled mankind for many years. The former dean of Stanford Law School succinctly recites the danger of a conflict of interests with the following words:
Justice Coleman (grandfather of our present Justice Coleman) warns of the danger of a conflict of interests in Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 537, 21 So. 315, 317 (1896) when he states "the frailty of human nature sacrifices duty to self-interest". Chief Judge Pound, in Elco Shoe Manufacturers, Inc. v. Sisk, 260 N.Y. 100, 183 N.E. 191, states that "no man can serve two masters with equal fidelity when rival interests come into existence."
Obviously, the intent of the legislature was to prevent a conflict of interests so that no member of a governing board would endeavor to give favorable treatment to businesses in which he would be financially or beneficially interested in connection with purchases of personal property or a contractual service. The servant with whom we are concerned under Section 508 in the instant case is Mr. Hamner and his two masters are the Housing Authority of the City of Montgomery and Southeast Fire Equipment Company, Inc. The Housing Authority is not in any way involved in the contract for the firefighting equipment on which Southeast Fire unsuccessfully entered a bid and, therefore, there are no rival interests. While Mr. Hamner does have two masters, there is no conflict between the two. In nowise was Mr. Hamner exercising a decision-making function that could be influenced by any financial interest or personal beneficial interest in connection with the firefighting equipment in this case.
The foregoing considerations have led this court to the conclusion that Title 55, section 508, supra, was intended to prohibit successful bidding by a member of a governing board of an instrumentality of a municipality and by business entities in which he has an interest, if such member will have a financial or beneficial interest, either directly or indirectly, in the award contract where such member will be or can be involved in the decision-making procedure as to who will receive the award contract. The instant controversy is not such a case and Brendle is not entitled to an injunction prohibiting the City of Montgomery from receiving bids "from any member of the Board of Commissioners of the Housing Authority of the City of Montgomery or from any entity in which such member would have an interest or an ownership therein," as was granted by the lower court in part two of its decree.
The City further argues that Brendle seeks to determine Mr. Hamner's rights to submit bids to the City without making him a party. In a declaratory judgment action by a development corporation to enjoin the city from collecting taxes under an ordinance which required the city to reimburse the development corporation for sewer and water lines or to refrain from collecting city taxes in the area, this court held that the property owners were necessary parties and the failure to include those property owners in the original bill warranted reversal. In that same case, City of Mobile v. Gulf Development Co., 277 Ala. 431, 171 So. 2d 247 (1965), this court found that the Water Board was a necessary party since the inference was that the Water Board was using the lines. For other examples of necessary parties see Tilley, Alabama Equity Pleading and Practice Annotated With Forms, Section 28.
*487 In Boswell v. Boswell, 280 Ala. 53, 60, 189 So. 2d 854, 861, the court stated:
Therefore, this court holds that Willie F. Hamner is a necessary party and should have been joined. The same would appear to be true in regard to Southeast Fire Equipment Co., Inc., a corporation, if the question had been raised.
As noted heretofore, that aspect of the bill in which Brendle asserted that Title 55, section 511 had been violated did not support an injunction under section 515 as the latter section does not authorize injunctive relief with respect to the formation of future contracts. The same controlling rationale would likewise be applicable for violations under Section 508 when an injunction is sought under Section 515. However, an injunction prohibiting the future formation of contracts violative of Section 511 as well as other sections under Chapter 22 can be warranted under general principles of equity.
Brendle has averred in its bill "that the complainant is a potential bidder for future proposed purchases and the probable future injury to the complainant cannot be compensated for in damages if the statutes hereinabove referred to would continue to be violated as hereinabove alleged; and that the complainant has no adequate remedy at law".
The court in Scofield v. Perry Creamery Co., 234 Ala. 560, 176 So. 195 (1937), stated that:
The probability of future injury, as averred in the bill, if proved and based on reasonable current apprehensions, judged by the standards set out in Scofield, could justify injunctive relief under general principles of equity.
There was evidence in this case that any illegal bidding practices on the part of the City had been discontinued and that full compliance with the competitive bid law was practiced at the time testimony was taken. Mr. Brendle indicated that his complaints were not directed toward the new city administration. Since this case must be reversed and remanded, on the retrial of the cause the lower court should bear in mind that a court of equity should not grant an injunction to prevent in the future that which in good faith has been discontinued and where there is no evidence that the offense is likely to be repeated in the future. See Mitchell v. Miller & Co., 178 F. Supp. 776 (S.D.Ala.1959).
For the errors herein mentioned, the cause is reversed and remanded. Pending retrial the injunction is dissolved.
Reversed and remanded.
MERRILL, HARWOOD, MADDOX and FAULKNER, JJ., concur. | March 29, 1973 |
d7b29bc3-ed3b-44a3-b7f2-2d27b228fabf | Casey v. Keeney | 274 So. 2d 68 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 68 (1973)
Mildred CASEY
v.
Bessie M. KEENEY.
SC 151.
Supreme Court of Alabama.
February 22, 1973.
*69 Taylor D. Wilkins, Jr., and E. E. Ball, Bay Minette, for appellant.
Wilters & Brantley, Bay Minette, for appellee.
PER CURIAM.
This is an appeal from a decree of the Circuit Court of Baldwin County, in Equity, which established a boundary line between lands of appellant on the west and lands of appellee on the east, which lands are situated in Section 28, Township 8 South, Range 4 East, Baldwin County, Alabama.
It is apparent that the boundary line fixed in the decree under review was based on a finding by the trial court, before whom the testimony was taken orally and who made a personal inspection of the lands involved, that the appellee acquired title to the strip of land in dispute by adverse possession.
We will allude to certain principles which have been established or recognized in our cases which have dealt with boundary line disputes which principles were reaffirmed in the recent case of Barnett v. Millis, 286 Ala. 681, 246 So. 2d 78.
Equity has jurisdiction to determine disputed boundary lines.
A boundary line between adjacent landowners which is not controlled by a government survey or subsectional lines located on the basis of a government survey may be changed by adverse possession.
The provisions of Section 828, Title 7, Code 1940, to the effect that adverse possession cannot confer or defeat title to land unless the party claiming adverse possession shall show that a deed or other color of title has been recorded for ten years, or unless such party or those through whom he claims has assessed the land for taxation for a period of ten years, if the land is subject to taxation, have no application to cases involving a question as to boundaries between coterminous owners.
If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing *70 that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken.
The dividing line between the property of appellant on the west and that of appellee on the east, according to their paper title, is the half-section or middle section line which divides the W½ and the E½ of the aforementioned section.
If the location of that line had been considered as the only issue, much of the testimony offered by both parties relating to adverse possession would no doubt have been excluded and given no consideration by the court in its decree, for landowners cannot by adverse possession relocate a section line or an interior subdivision line located on the basis of a government survey. Barnett v. Millis, supra; McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160; Alford v. Rodgers, 242 Ala. 370, 6 So. 2d 409; Sims v. Sims, 273 Ala. 103, 134 So. 2d 757; Morgan v. Larde, 282 Ala. 426, 212 So. 2d 594.
It is apparent that the boundary line fixed in the decree under review was based on a finding by the trial court from the evidence adduced that the appellee acquired title to the strip of land in dispute by adverse possession.
We quote that part of the decree which contains the findings of the court:
*71 These findings are tantamount to a finding that appellee for a period of ten years held hostile possession of the disputed area under a claim of right; that such possession was actual, exclusive, open, notorious and continuous. Parrish v. Davis, 265 Ala. 522, 92 So. 2d 897.
Although there was a conflict in the testimony in regard to some of the findings of the trial court, there was testimony to support all of the court's findings in regard to appellee's possession of the land in dispute.
The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts, and that the determination so made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Butts v. Lancaster, 279 Ala. 589, 188 So. 2d 548; Morgan v. Larde, supra; Barnett v. Millis, supra.
Moreover, as mentioned before, the trial court in accordance with permissible practice, made a personal inspection of the property before making its finding of fact. Hence, the decree is reviewed here as if it were a verdict of a jury, not to be disturbed unless it is plainly and palpably contrary to the weight of the evidence. Hackett v. Cash, 196 Ala. 403, 72 So. 52; Monroe Bond and Mortgage Co. v. State, 254 Ala. 278, 48 So. 2d 431; McNeil v. Hadden, supra; Barnett v. Millis, supra.
The answers of a witness given in response to questions about lines, location, distances and the like which appeared on a survey are meaningless to us, since we do not have the pointing finger or any information which enables us to determine the particular line, location or distance to which the witness referred. The trial court was not so limited. Barnett v. Millis, supra, and cases cited.
In view of the presumptions in favor of the trial court's findings of fact, to which we have alluded above, we cannot say that there is a clear, decided preponderance of the evidence against the conclusion reached by the trial court based on its findings from the evidence. Edwards v. Farmer, 285 Ala. 118, 229 So. 2d 507; Barnett v. Millis, supra.
A detailed discussion of the evidence would serve no useful purpose. Section 66, Title 13, Code of 1940; Barnett v. Millis, supra; Rowell v. McCollough, 270 Ala. 576, 120 So. 2d 729.
The decree under review 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.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX and FAULKNER, JJ., concur. | February 22, 1973 |
17faf779-148f-4de6-9c7c-a787d2f21e8a | Racine v. State | 275 So. 2d 655 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 655 (1973)
Charles E. RACINE, Jr.
v.
STATE of Alabama.
SC 263.
Supreme Court of Alabama.
March 15, 1973.
Rehearing Denied April 19, 1973.
Thomas M. Haas and Y. D. Lott, Jr., Mobile, for appellant.
William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
This case was transferred to the Supreme Court from the Court of Criminal Appeals by authority of Title 13, § 111(11a), Code of Alabama 1940, Recompiled 1958.
Charles E. Racine, Jr. was convicted of selling lysergic acid diethylamide (LSD) in violation of the former Title 22, § 258(21) of our Code, and sentenced to ten years in the penitentiary. The basic issue of the trial was whether defendant had handed the LSD to a friend, who then sold it to police undercover agents, or whether defendant had merely stood by, as the friend sold it to the agents. Two prosecution witnesses testified to the former; two defense witnesses to the latter. The jury evidently believed the prosecution witnesses. Racine now appeals from the judgment of *656 conviction, arguing: (1) that allegedly improper comments by the district attorney during closing argument amounted to reversible error; and (2) that the trial court's ruling on a motion to inspect and analyze the contraband was erroneous.
From the record, it is evident that the trial was a turbulent one, with innumerable objections to evidence, numerous motions for a mistrial, many sharp clashes between and among counsel and the trial judge, audience disorder, complaints that the clank of handcuffs had drowned out a jury poll, and allegations that prospective witnesses had been intimidated and even arrested in front of the jury panel. As a part of this overheated atmosphere, the district attorney's closing argument included calling the defendant "a man who makes money from turning everyone else on", and a statement that he "didn't know whether they would give the LSD to five-year-olds just to make $60.00." Defendant's objections to these comments were overruled.
In evaluating allegedly prejudicial remarks by the prosecutor in closing argument, no fixed standard can be applied, and each case must be judged on its own merits. Smith v. State, 282 Ala. 268, 210 So. 2d 826 (1968); Bryson v. State, 264 Ala. 111, 84 So. 2d 785 (1955). As stated by Judge Harwood, in Bullard v. State, 40 Ala.App. 641, 645, 120 So. 2d 580, 584 (1960):
In numerous cases similar to the one before us, convictions have been reversed for prosecutorial accusations of other crimes, unsupported by the record, or appeals to the passion and prejudice of the jury. Williams v. State, 42 Ala.App. 563, 171 So. 2d 474 (1965); Bevins v. State, 39 Ala.App. 228, 97 So. 2d 572 (1957), cert. denied 266 Ala. 695, 97 So. 2d 574 (1957); Lowman v. State, 38 Ala.App. 612, 91 So. 2d 697 (1956), cert. denied 265 Ala. 698, 91 So. 2d 700 (1956); Mitchell v. State, 28 Ala.App. 119, 180 So. 119 (1938), cert. denied 235 Ala. 530, 180 So. 123 (1938); Grimes v. State, 23 Ala.App. 511, 128 So. 120 (1930); Williams v. State, 22 Ala.App. 489, 117 So. 281 (1928); Hardaman v. State, 17 Ala.App. 49, 81 So. 449 (1919); McMickens v. State, 16 Ala.App. 78, 75 So. 626 (1917); Hall v. United States, 419 F.2d 582 (5th Cir., 1969).
Here, we have an accusation that defendant is a man "who makes money from turning everyone else on." This amounted to an imputation of numerous other crimes to defendant. The accusation had no support in the record, which showed, at most, that defendant handed a vial to a friend, who then sold it to police. The testimony indicated it was the friend, not Racine, who pocketed the money.
The statement by the district attorney that he "didn't know whether they would give the LSD to five-year-olds just to make $60.00" was also improper. Although posed in the hypothetical, unlike the statement about "turning everyone on," it was nevertheless impermissible as an appeal to passion and prejudice, in light of its reference to the sensitive subject of children, and the complete lack of support for any such comment in the record. Williams v. State, supra; Lowman v. State, supra.
We do not reach the second issue raised by appellant. Prejudicial error having been committed at trial, the judgment of conviction must be and hereby is reversed.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | March 15, 1973 |
df83bce2-a729-43b0-b864-b5e5c5ab094b | Jackson v. State | 274 So. 2d 311 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 311 (1973)
Johnny Mack JACKSON
v.
STATE of Alabama.
4 Div. 319.
Supreme Court of Alabama.
March 8, 1973.
PER CURIAM.
The question presented in this case is identical to that presented in Swain v. State, 290 Ala. 123, 274 So. 2d 305, this day decided. On the authority of that case, we modify and affirm.
Johnny Mack Jackson was convicted of rape and received a death sentence. This court remanded the cause for further proceedings, Jackson v. State, 285 Ala. 564, 234 So. 2d 579. The judgment of conviction was affirmed by this court in Jackson v. State, 286 Ala. 287, 239 So. 2d 303.
In Jackson v. Alabama, 408 U.S. 938, 92 S. Ct. 2866, 33 L. Ed. 2d 757, the Supreme Court of the United States vacated the judgment against Jackson insofar as the death penalty is imposed, but left undisturbed the adjudication of Jackson's guilt of the crime for which he was tried and convicted and remanded the cause to this court for further proceedings.
Following Swain, supra, and on authority of that decision, the death sentence imposed on the defendant, Johnny Mack Jackson, is vacated and set aside. In lieu and instead thereof, the sentence is corrected and modified to provide that the said Johnny Mack Jackson 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 Coffee 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.
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.
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.
MERRILL, HARWOOD, BLOODWORTH, MADDOX and JONES, JJ., concur.
HEFLIN, C. J., and COLEMAN, McCALL and FAULKNER, JJ., dissent.
HEFLIN, Chief Justice (dissenting).
My views are the same as contained in my dissenting opinion in Swain v. State, 290 Ala. 123, 274 So. 2d 305, 7 Div. 796.
McCALL, Justice (dissenting).
My views have already been expressed in the dissenting opinion of Justice Coleman in Swain v. State, 290 Ala. 123, 274 *313 So. 2d 305, 7 Div. 796, and I adopt that dissent as my dissent in this case.
COLEMAN and FAULKNER, JJ., concur. | March 8, 1973 |
cda0903d-136b-43bc-867d-041bb31cc304 | McCulloch v. Roberts | 276 So. 2d 425 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 425 (1973)
Robert Gregg McCULLOCH and Edith Harrison McCulloch
v.
James E. ROBERTS and Katrina Roberts.
SC 90.
Supreme Court of Alabama.
April 5, 1973.
Rehearing Denied May 3, 1973.
*426 Spain, Gillon, Riley, Tate & Ansley and Ollie L. Blan, Jr., Birmingham, for appellants.
J. Robert Fleenor and Warren B. Lightfoot, Birmingham, for appellees.
BLOODWORTH, Justice.
Appellants appeal from a decree of the Circuit Court of Jefferson County, Alabama, in equity, rendered on January 20, 1972. Appellees move to dismiss the appeal, assigning as grounds their contention that the decree of January 20, 1972, is not a final decree and will not support an appeal.
Appellants filed a bill against appellees to quiet title to certain lands. Appellees filed a cross bill to establish an easement across the lands in their favor.
The trial court, in its decree, adjudged and decreed that appellants (complainants below) own a certain tract of land on the Cahaba River in Jefferson County, which is subject to a convenient right-of-way over it to the Cahaba River in favor of the appellees (respondents below) for use by appellees as a route of ingress and egress to the river for the purposes of boating, fishing and swimming. The court ordered the parties to submit to the court within 30 days "an agreed suggested route of ingress and egress not more than ten (10) feet in width." In the event the parties did not agree upon a route, then each was ordered to submit a suggested route to be fixed by the court.
No agreement was ever reached as to a suggested route. Appellants filed their suggested route with the court on February 21, 1972. Appellees state, in brief, they submitted, but they have not filed a suggested route. According to the record, no decision has been made by the trial court fixing a route.
In Ex parte Elyton Land Co., 104 Ala. 88, 91, 15 So. 939 (1893), this court held that:
Likewise, in Carter v. Mitchell, 225 Ala. 287, 293, 142 So. 514 (1932), the rule was stated as follows:
In Adams v. Sayre, 76 Ala. 509, 518 (1884), it was held that:
In the case at bar, the chief, if not sole, issue involved was whether the appellees had a right to cross appellants' property to get to the Cahaba River for the purposes of fishing, swimming and boating. The trial court stated in its decree of January 20, 1972:
It is noteworthy that appellees, in their cross bill, did not pray that the court establish the location of their claimed route of ingress and egress. The trial judge introduced this feature of the case in his decree.
Thus, it appears to this court that the chief question ("the equities" of the case)the right of egress and ingress over appellants' landswas adjudicated in the decree of January 20, 1972.
In Sexton v. Sexton, 280 Ala. 479, 482, 195 So. 2d 531, 533 (1967), the rule was stated that:
See also Newton v. Ware, 271 Ala. 444, 124 So. 2d 664 (1960), and Ex parte Sparks, 254 Ala. 595, 49 So. 2d 296 (1950).
Appellees' motion to dismiss the appeal is denied.
From the evidence adduced at trial, it appears that in 1943, Dr. Ethel Stuteville sold a tract of land to Jessie W. Jones and granted him, by the conveyance, "the right of ingress and egress to and from said Cahaba River and the right for himself and for his guests to fish and use boats and swim therein." This tract of land sold by Dr. Stuteville to Jones is the land presently owned by appellees, while appellants own the land retained by Dr. Stuteville over which the easement was granted. For convenience' sake, we shall hereafter refer to appellees' property as the dominant estate and to appellants' property as the servient estate.
The same or similar language as that used in the deed from Dr. Stuteville to Jones appears as a part of the granting clause in the conveyances of the dominant estate down to the conveyance to the appellees. Appellees' deed contains what appears to be a quitclaim to the easement, expressly made without warranty.
Appellants contend on this appeal that the easement so granted was lost by abandonment prior to the time the appellees acquired the dominant estate.
The testimony would seem to indicate that Ed Leslie, the predecessor in title to the appellees, did not use the right-of-way across the appellants' property to the Cahaba River for a sixteen year period from 1953 to 1969 (when he owned the dominant tract), with one exception, and on that occasion he asked permission of the appellants to cross their property prior to doing so. However, it appears that Leslie was partially crippled and did not get around very well. It further appears that Leslie expressed himself as having no use for the river, nor was he a fisherman. Leslie did state on one occasion that he was glad to *428 know that he had the right to use the river if he ever wanted to.
In Western Union Telegraph Co. v. Louisville & N. R. Co., 202 Ala. 542, 81 So. 44 (1919), this court held that:
On the second appeal of the same case, in Western Union Telegraph Co. v. Louisville & N. R. Co., 206 Ala. 368, 89 So. 518 (1921), the court wrote that:
Thus, the indications from the testimony of nonuser for sixteen years, the crossing of the servient property only once and then by permission, and the statements by Leslie, himself, may be persuasive (as appellants argue) that Leslie intended to abandon whatever right he may have had to cross the servient estate to get to the river. On the other hand, inferences may also be drawn from the testimony to the effect that Leslie's non-use was due to his bring crippled, the difficulty he would have experienced in his using the easement, and his lack of interest in fishing or using the river. (There was testimony that the properties all sloped down to the river.) These conflicting inferences were resolved by the trial judge who decided this issue in appellees' favor. In view of the presumptions to be indulged in favor of his findings, we will not say those findings on this issue were plainly and palpably erroneous. Wolfe v. Thompson, 285 Ala. 745, 235 So. 2d 878 (1970). Nor, can we say the intention to abandon is "clearly deducible." Western Union Tel. Co. v. Louisville & N. R. Co., supra.
The following excerpt from the record will give the context in which the next assignment of error arose, viz:
"A About 1962 based on Jones' deed.
"THE COURT: Overrule.
"Q Go ahead, if you would.
"THE COURT: He has already answered your question.
"Q Did you have such a conversation?
"A We had a conversation.
"Q All right. Would you tell us what the conversation was?
"MR. LIGHTFOOT: We object to that. Hearsay.
THE COURT: Sustain.
"THE COURT: Well, let's go forward.
"MR. BLAN: We except."
(This case, though in equity, was not tried under the so-called Lazy Lawyer's Rule (Title 7, § 372(1), Code of Alabama 1940, as last amended).)
Appellants assign as error the sustaining by the trial court of the objection by appellees to the question asked of appellant, McCulloch, concerning the conversation which he (McCulloch) had with Leslie about the latter's rights to use the river and his further intentions not to use the river.
Appellants assert on this appeal, as they did in the court below, that the testimony should have been permitted under an exception to the hearsay rule as being a declaration by Leslie against his pecuniary and proprietary interest. Appellees contend that the evidence was inadmissible under the Dead Man's Statute (Title 7, § 433, Code of Alabama 1940).
Notwithstanding the objection was made on the ground of hearsay and sustained on that basis, it is our duty to uphold the trial court in its ruling, if the ruling was correct on any other ground. Nichols v. State, 276 Ala. 209, 160 So. 2d 619. See also Alabama Digest, Vol. 2A, App. & Error. We agree with appellees that the conversation was inadmissible under the Dead Man's Statute.
Although appellants contend that the estate of Ed Leslie is not interested in the outcome of the suit, according to our decisions, appellees are successors in interest to Ed Leslie, and the bar of the Dead Man's Statute extends to protect them, the same as Leslie's estate.
This court stated the rule to be to this effect in Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115 (1950):
"* * * We have held in several cases that the bar or rule of exclusion [of the Dead Man's Statute] applies to protect those claiming in succession to the deceased the same as to the estate of the deceased, when the other conditions exist. * * *"
Likewise, in Federal Land Bank v. Curington, 233 Ala. 263, 171 So. 361 (1936), this court held that:
"* * * [I]t has long been held that the spirit of section 7721, Code, [now Title 7, § 433] prohibits the testimony of the living party to a transaction with the deceased against the party to whom his interest is opposed, when the deceased person's estate, or that of his grantee or heir, is interested in the result of the suit. The rule applies to protect those *430 claiming in succession to the deceased the same as the estate of the deceased, when the other conditions exist. [Citations omitted]"
The trial court committed no reversible error in sustaining appellees' objection to the question.
This assignment of error charges the trial court erred in not permitting appellants to make a showing as to what the testimony of appellant McCulloch would be (as appears from that portion of the transcript hereinabove set forth). We do not find from this extract of the record that the trial court ever ruled that he would not permit a showing. It is only adverse rulings which are subject to assignments of error and which are reviewable on appeal. Tyson v. United States Pipe and Foundry Company, 286 Ala. 425, 240 So. 2d 674 (1970). It appears that the trial judge was simply explaining his ruling on the objection to counsel for appellants. At any rate, it clearly appears from this excerpt from the testimony that counsel for appellants made his showing by stating what he expected the witness' testimony to be. We find no reversible error here.
Appellants contend that the great preponderance of the evidence adduced at trial established that the easement claimed by appellees had been lost by adverse possession by appellants and their predecessors in title under color of title for more than ten years prior to the time appellees acquired title to the dominant estate.
Appellants state, in brief in support of this contention, that appellants and their predecessors in title forbade the use of their property by anyone other than those persons to whom they had given permission to cross the servient estate and use the river. We do not draw this inference from the evidence. Moreover, this matter addressed itself to the trial court, who heard and observed the witnesses testify. We are unwilling to say he should have determined this issue in favor of appellants. Nor, can we say the great preponderance of the evidence supported this contention.
Appellants further contend that the stone steps across the servient estate were covered with underbrush and were impassable and that this "constituted an effective obstruction of the route previously used in exercising the river rights." Without determining whether this would be sufficient "obstruction" to constitute adverse possession on the part of appellants, if continued for ten years under color of title, it appears to us from the evidence that the steps were "obstructed" for only a five year period, which falls far short of the requisite period of time to constitute adverse possession.
The burden of proving adverse possession rests upon the party who asserts such. Machen v. Wilder, 283 Ala. 205, 215 So. 2d 282 (1968). We cannot hold that the trial judge was plainly and palpably wrong in determining that this burden was not met by appellants. The trial court did not err in this respect.
Appellants assign as error the trial court's failure to rule on appellants' objections to certain portions of the deposition of A. R. Green. (The deposition was taken by appellants but offered at trial by appellees.) In addition, appellants assign as error the trial court's reception into evidence over appellants' objections of the testimony of Mrs. A. R. Green, contained in the deposition of A. R. Green. No ruling by the trial court with regard to these objections appears in the record.
In Thornton v. Tutt, 283 Ala. 72, 214 So. 2d 425 (1968), it was held that:
See also Tyson v. United States Pipe and Foundry Company, supra.
*431 As there is no ruling of the trial court adverse to appellants which appears in the record with regard to these objections, there is nothing presented to this court for review by these assignments of error.
Appellants here complain of error by the trial court in its finding that appellants took title to the lands with notice of the existence of the easement.
Evidence as to this issue was in dispute and the matter resolved against appellants by the trial judge. Moreover, appellant McCulloch, himself, admitted that he learned of the existence of the easement in 1961. This was prior to his purchasing a portion of the lands. We find no error to reverse with respect to this finding.
It is thus that we must conclude there is no reversible error in any of the assignments of error argued, and this cause should be affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | April 5, 1973 |
0d9d0d91-2057-465e-94b6-ad674b42da32 | WALTER L. COUSE & COMPANY v. Hardy Corporation | 274 So. 2d 322 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 322 (1973)
In re WALTER L. COUSE & COMPANY
v.
The HARDY CORPORATION.
Ex parte The HARDY CORPORATION.
SC 221.
Supreme Court of Alabama.
March 8, 1973.
Spain, Gillon, Riley, Tate & Ansley and Ollie L. Blan, Jr., Birmingham, for petitioner.
COLEMAN, Justice.
A contractor brought action against a subcontractor to recover indemnity for a sum of money the contractor had paid to a pedestrian who was allegedly injured as the result of negligence in maintaining a public sidewalk in an unsafe condition.
*323 As last amended, the complaint contained two counts, numbered five and six. The trial court sustained demurrer to both counts, plaintiff took a voluntary nonsuit and appealed to the Court of Civil Appeals, 49 Ala.App. 552, 274 So. 2d 316, and that court held that the trial court erred in sustaining the demurrer to both counts of the complaint. The defendant, subcontractor, applies for certiorari to review the judgment of the Court of Civil Appeals.
In count five, the contractor claims indemnity for breach of a contract made with the subcontractor. Contractor alleges that it, as prime contractor for alterations to a certain building, agreed to pay subcontractor an agreed amount to perform certain plumbing, heating, and air conditioning work for the contractor. The contractor alleges that the subcontractor agreed to indemnify the contractor for claims and liabilities arising out of or connected with the performance of the work which subcontractor contracted to perform. The contractor further alleges that a certain pedestrian was injured and contractor has paid certain sums in compromise of suits she and her husband had filed against contractor. Contractor alleges that the claims by the pedestrian and her husband arose out of and were connected with the performance of the work which subcontractor contracted to perform. Contractor alleges that although it has complied with the contract on its part, the subcontractor has failed to protect, defend, and indemnify contractor in connection with the suits filed by the injured pedestrian.
Copies of the complaints filed by the pedestrian and her husband are made exhibits to the contractor's complaint. In her action the pedestrian sued subcontractor, contractor, and Alabama Gas Corporation which has possession of the building and is hereinafter referred to as owner. Pedestrian alleged that, on the day of her injury, the owner occupied the building heretofore mentioned; that prior to said date the other defendants in said cause, by virtue of some contract between themselves and the owner, had torn up or partially torn up the public sidewalk in front of the building and had left certain boards over and along said sidewalk which left it not reasonably safe for the use of the public; that while pedestrian was upon said sidewalk she tripped and fell over the obstruction placed in said sidewalk by the other defendants, and as a proximate consequence thereof she was injured.
Pedestrian further alleged that her injury was caused as a proximate result of the negligence of the owner in causing the public sidewalk to be in a condition not reasonably safe for use of pedestrians and the negligence of the other defendants in tearing up the sidewalk and leaving the same in a condition not reasonably safe for the use of persons using the sidewalk.
The contractor is Walter L. Couse & Co. The indemnity provision of the contract made by contractor and subcontractor recites:
On the appeal by the contractor to the Court of Civil Appeals, the errors assigned are that the trial court erred in sustaining demurrers to count five and to count six respectively and severally. None of the grounds of demurrer is mentioned or set out in the opinion of the Court of Civil Appeals. From the opinion of that court, it appears that the question argued in and decided by that court is whether count five states a cause of action or fails to state a cause of action. The specific objection to count five considered by the Court of Civil Appeals is whether the indemnity provision is an agreement by the subcontractor to indemnify the contractor for liability which is the proximate result of the contractor's *324 own negligence. The Court of Civil Appeals concluded as follows:
The "situation in question" is that the contractor alleges "... that although it has complied with the provisions of said contract on its part ...," the subcontractor has failed to indemnify the contractor from liability in the suits by the pedestrian and husband, and that the claims asserted by the pedestrian and husband "... arose out of and were connected with the performance of the work which the defendant contracted with the plaintiff to perform under the contract attached hereto."
We understand the holding of the Court of Civil Appeals to be that the indemnity agreement requires the subcontractor to indemnify the contractor for the liability imposed on the contractor "as a matter of law" for the allegedly negligent acts of the subcontractor in the ". . . performance of the work which the defendant (subcontractor) contracted with the plaintiff (contractor) to perform under the contract...," and the contractor is not guilty of active, primary negligence which proximately caused or contributed to the injury out of which the liability arose.
None of the Alabama cases cited by the Court of Civil Appeals in considering count five has to do with indemnity agreements between a contractor and subcontractor. Four Alabama cases cited in this connection are next hereinafter mentioned.
In Smith v. Kennedy, 43 Ala.App. 554, 195 So. 2d 820, a customer at a Beauty College had signed an agreement that she would not hold the operators liable for injury to the customer. A judgment for plaintiff was affirmed. The trial court sustained demurrer to pleas setting up the agreement and the reviewing court held the ruling not to be error, but that if the ruling was error, it was harmless because the agreement was admitted in evidence and all circumstances were fully developed on the trial.
In Eley v. Brunner-Lay Southern Corporation, Inc., Ala., 266 So. 2d 276, lessor of a drilling machine sought the construction of the lease. Lessor contended that the lease obligated lessee to indemnify lessor for liability allegedly resulting from the negligence of lessor in designing, maintaining, and supplying the machine. The opinion sets out lease provisions which cover approximately one-half of a printed page. This court considered various provisions in detail, including provisions by which lessee agreed that the machine was in good condition when it was received by lessee and removed from control of lessor; that under these conditions lessor ran the risk of having someone injured while lessor had no opportunity to inspect or repair the machine or to pass on the skill of the operator. The court considered these conditions as showing a substantial business reason for an agreement that lessee, who had accepted the machine and had control of it, *325 should indemnify lessor for liability arising while the machine was in the custody and control of lessee. This court concluded as follows:
The indemnity provision in the instant case lacks substantial provisions which were contained in the lease in Eley.
In Deen v. Holderfield, 275 Ala. 360, 155 So. 2d 314, the wife of a tenant sued the landlord for personal injury allegedly resulting from the negligence of the landlord in making repairs on the leased premises. In the lease, it is agreed that the premises are in good and safe condition and the landlord is absolved and released from liability to the tenant, or other party occupying the premies, "`... from any defect in said premises ... or other cause whatsoever not attributable to the wilful act of the said landlord ...'" This court held that the trial court erred in sustaining demurrer to the landlord's plea, which set up the release clause as a defense, saying:
In Republic Steel Corporation v. Payne, 272 Ala. 483, 132 So. 2d 581, plaintiffs sued for personal injuries resulting from inhaling fumes and gas caused by defendant's mining operations. Plaintiffs were tenants under a lease from grantees who held under a deed from Republic, the defendant. The deed contained covenants and reservations, some of which were set out in the opinion and cover three-fourths of a printed page. After considering the lease provisions at length and in detail, this court held defendant entitled to the affirmative charge saying, among other things:
In the cases last cited this court accepts, and in some of the cases states, the general rule that in an agreement, the principal purpose of which is not to indemnify or insure, "... the intention to indemnify the negligence of the indemnitee must clearly appear from the wording of the instrument...," Eley, supra. None of those cases, however, considered an indemnity provision in a contract between a general contractor and a subcontractor. The agreements in Eley, Deen, and Republic are examples of agreements in which the intention to release from liability or to indemnify for the indemnitee's negligence is clearly expressed. The agreement in Mason *326 & Dulion, infra, did not clearly express such an intention.
In United States Fidelity & Guaranty Co. v. Mason & Dulion Co., 274 Ala. 202, 145 So. 2d 711, this court held that a subcontract did not require a subcontractor to indemnify a contractor for liability for injury that was the result of the negligence of the contractor. This court said:
Other courts have construed indemnity provisions in subcontracts which are analogous to the provision in the instant case. Many cases are cited in annotations in 143 A.L.R. 312 and 27 A.L.R.3d 663.
"As to primary or active negligence at least, many courts have declared or recognized that the contractor's obligation to indemnify the owner against the latter's own negligence, to be effectual, must be clearly and unequivocally expressed." 27 A.L.R.3d 690. Many other courts and this court (Eley, supra) have held that the use of the word "negligence" is not required if the intention to afford such protection clearly appears from the contract or from the language used, the surrounding circumstances, and the purpose and objects of the parties.
In Pittsburgh Steel Company v. Patterson-Emerson-Comstock, Inc. (1961), 404 Pa. 53, 171 A.2d 185, the owner (Pittsburgh Steel) sued the contractor (Patterson) for indemnity for a sum owner had been required to pay in settling an earlier action brought by an employee of a subcontractor (Eichleay) against the owner. Originally owner had made a contract with contractor for installation of a blooming mill on owner's premises. The contract contained the following provision:
Contractor was to perform the electrical work. To complete construction and installation of the mill, contractor entered into a contract with the additional defendant, the subcontractor. The contract between contractor and subcontractor contained the identical quoted provision which was in the owner's contract with contractor.
As a result of negligent operation of a crane by an employee of the owner, one of subcontractor's workmen was injured. The workman sued owner, and subcontractor was brought in as additional defendant. Owner voluntarily settled with the workman.
Owner then sued contractor for indemnity under the contract, and contractor made subcontractor an additional defendant. The jury returned verdict against both contractor and subcontractor. The trial court granted the motions of contractor and subcontractor for judgment non obstante veredicto, and the owner appealed.
*327 The Supreme Court of Pennsylvania affirmed and, among other things, said:
"Plaintiff's principal contention is that under the broad indemnity clause above quoted, Patterson is under a duty to indemnify plaintiff for sums paid by it to Eichleay's injured workman even though plaintiff's own negligence was legally the cause of the injury. Contracts indemnifying a party against his own negligence are valid: (Citations Omitted) However, the law is well settled that the intention to include within the scope of an indemnity contract, a loss due to the indemnitee's own negligence, must be expressed in clear and unequivocal language. (Citations Omitted)
. . . . . . . . . . .
". . .
"`We think it clear, on reason and authority, that a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it. The manifest purpose, in such cases, to indemnify against the injury which, under the circumstances, could reasonably be apprehended only from the action of the indemnitor or his servant, is a weighty consideration in construing indemnity contracts. The circumstances surrounding the parties, the one, the owner for whom the building is to be erected, and the other, the contractor who is to construct the building and hence from whose acts injury to persons and property may be anticipated, would seem to make the conclusion irresistible, that unless expressly stipulated in the contract the owner is not to be indemnified against his own negligence. In the case in hand the parties have not expressly stipulated against injury occasioned by the indemnitee's own negligence, and we are satisfied, from the terms of the instrument read in the light of the circumstances surrounding the parties as well as the manifest purpose inducing the bond, that they *328 did not intend to protect the indemnitee against his own or his servant's negligence.'
"In the instant case the indemnity clause is expressed in broad general terms. However, there is no clearly expressed or unequivocal language in the clause of indemnity to show that indemnification for its own negligence was intended. Moreover, plaintiff drew this contract `and therefore if its meaning is ambiguous or reasonably susceptible of two interpretations, it must be construed most strongly against the party who drew it: ...' (Citations Omitted)
". . . However, in the present case the facts are quite different. The indemnitee remained in possession of the premises. Its own employees continued working under its exclusive control. Under the construction contended for by plaintiff, Patterson and in turn Eichleay would be made insurers for acts of negligence over which they had or could have no control. Without more direct and unequivocal language in the contract, it is unreasonable to infer or conclude that the parties intended an indemnification of such magnitude." (404 Pa. at 56, 57, 58, 59, 60, 61, 171 A.2d at 187, 188, 189)
See also: Boston & M. R. R. v. T. Stuart & Son Co., 236 Mass. 98, 127 N.E. 532; Kansas City Power & Light Co. v. Federal Construction Corp. (Mo.), 351 S.W.2d 741; Perry v. Payne, 217 Pa. 252, 66 A. 553.
The contract in the instant case is designated "PURCHASE ORDER CONTRACT," and is addressed by contractor to the subcontractor. The order contains the following provision:
The parties certainly intended that the subcontractor would perform the "order." Nothing in the contract or elsewhere suggests that the contractor or its employees will engage in "the performance of this order." Against whose acts did the parties intend that subcontractor should be held to indemnify the contractor? The reasonable construction is that the parties intended that subcontractor should indemnify for the acts of those persons who the parties intended would be engaged in "the performance of this order." The persons thus intended to be engaged were the subcontractor and its employees, no one else. For their acts subcontractor agreed to indemnify.
If, by the terms of the contract, subcontractor is to be held to assume the risk of uncertain and unlimited liability for the acts of contractor's employees, over whom subcontractor has no right of selection or control, reason and fairness require that the subcontractor be put on notice, by clear and unambiguous language in the contract, that subcontractor has assumed that risk.[1]
*329 We agree that the instant contract is broad enough to require indemnitor to indemnify the indemnitee in "the situation in question" wherein the indemnitee is "guilty as a matter of law of negligence to the third party" because of the active, primary negligence of the indemnitor whose active, primary act caused the injury.
By denying certiorari, we are not to be understood as approving a construction of the indemnity agreement so as to require the indemnitor to indemnify in a situation where the injury is caused in whole or in part by the active, primary negligence of the indemnitee.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, McCALL, and JONES, JJ., concur.
[1] In suit for indemnity by Perry, the owner, to recover indemnity from contractor, the court said:
"It is contrary to experience and against reason that the contractors should agree to indemnify Perry against the negligence of himself or his employes. It would make them insurers, and impose a liability upon the contractors, the extent of which would be uncertain and indefinite, and entirely in the hands of Perry. The results of such a liability might become most disastrous. While the consideration named in the contract for the construction of the building and indemnifying the owner was large, yet it was wholly inadequate to justify the contractors in assuming liability for his negligence in view of the responsibility in constructing the building. The profits to be realized on the contract were entirely too small to warrant the contractors in agreeing to assume a liability of such great proportions and of such unlimited extent. A single act of negligence on the part of the owner or his employes, over whom the contractors would have no restraint or control whatever, might create a liability which a lifetime of successful business could not repay. An interpretation of the bond which might give rise to such results could hardly be regarded as reasonable or as giving effect to the intention of the parties." Perry v. Payne, supra, 217 Pa. at page 259, 66 A. at page 555. | March 8, 1973 |
e07bda4c-326e-4524-83e7-5d2e1887a079 | ConAGRA, Inc. v. Masterson | 276 So. 2d 134 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 134 (1973)
ConAGRA, INC., a corporation, and George William Miller
v.
John Keith MASTERSON.
SC 89.
Supreme Court of Alabama.
April 5, 1973.
*135 Eyster, Eyster & Key, Decatur, for appellants.
W. H. Rogers, Moulton, for appellee.
*136 BLOODWORTH, Justice.
This is an appeal by appellants (defendants below) from an order of the Circuit Court of Lawrence County, granting appellee's (plaintiff below) motion for a new trial. Alternatively, appellants-defendants seek to review the same action by petition for a writ of mandamus. (For convenience sake, we shall hereafter refer to the parties as plaintiff and defendants.)
The action is a personal injury suit for damages, arising out of a collision between a car driven by plaintiff, John Keith Masterson, and a truck driven by defendant, George William Miller, and belonging to defendant, ConAgra, Inc. The collision occurred on the Courtland-Russellville Road in Lawrence County. At the conclusion of the trial, the jury returned a verdict for defendants. Thereafter, the trial court granted plaintiff's motion for a new trial. There are twelve grounds assigned in the motion for a new trial. The trial court did not specify on which of the grounds it granted the new trial.
In their petition for mandamus, defendants aver: that on May 24, 1972, the jury returned a verdict in their favor and that judgment was entered accordingly; that on June 23, 1972, plaintiff filed his motion for a new trial, which was continued by the court for hearing on July 12, 1972; that on July 15, 1972, the motion for new trial was granted; that on August 18, 1972, defendants filed notice of appeal, and gave security for costs of appeal, from the judgment and order of July 15, 1972, which granted the motion for new trial.
Defendants further aver, in their petition: that as of the date of the taking of the appeal, there had been no order filed with the Circuit Clerk of Lawrence County, indicating that the motion for new trial was heard on or before July 12, 1972; that there were no orders in the records or minutes of the court continuing the motion beyond July 12, 1972; that at some point in time after August 18, 1972, an entry was made on the bench notes as follows, "7/12/72 Motion for a new trial heard and taken under submission-BB;" that pursuant to said bench note, a minute entry was prepared by the circuit clerk which appears in the transcript dated "July 12, 1972," though it is averred that the minute entry was made subsequent to August 18, 1972. Defendants incorporate by reference in their petition for mandamus the transcript of the record on appeal.
Defendants aver they are not certain whether the order granting the new trial is such an order as will support an appeal, but defendants opine that the Circuit Court of Lawrence County was without power or jurisdiction to enter the order because of a discontinuance, and that such order can be reviewed only by mandamus. They pray that this court take jurisdiction and issue a writ of mandamus to the Honorable Billy C. Burney, as Judge of the Circuit Court of Lawrence County, ordering him to set aside his order granting a new trial, or, in the alternative, to grant to petitioners a rule nisi requiring Judge Burney to show cause why the order should not be vacated.
On the other hand, plaintiff contends that where the motion is duly heard, submitted and taken under advisement by pronouncement of the trial court in open court, it is not necessary that the pronouncement be placed in the minute entry at that time, because the entry of the pronouncement is a ministerial function which can be performed later. Also, plaintiff contends that there is a minute entry in the record, reflecting that the motion was taken under advisement by the court, and this prevents a discontinuance.
*137 Following are the orders referred to, each of which is found in the transcript of the record, viz:
"DONE AND ORDERED this 15th day of July, 1972.
FILED IN THIS OFFICE THIS THE 15th DAY OF JULY, 1972.
Ernest Shelton
Clerk"
These orders clearly establish that the motion for new trial was timely filed on June 23, 1972, set for hearing on July 12, 1972, and on that date, in the presence of the parties and their attorneys, submitted to the trial judge, who thereupon took the same under advisement. Thus, according to the record, there was no discontinuance effected as contended for by defendants.
This court has many times stated the rules governing discontinuances and the need for keeping alive motions for new trials by timely continuances or other orders of submission.
Defendants aver, in their petition for mandamus, that on the day the appeal was taken, August 18, 1972, the minute entry was not of record but that it was made by the clerk, pursuant to an entry by the trial judge on the docket sheet, subsequent to the date of appeal. They attach an affidavit from the circuit clerk to support this allegation.
There are several answers to this contention. In the first place, defendants themselves, on submission of this cause in this court, conceded that the trial judge did take the motion for new trial under submission on July 12, 1972, as the minute entry states. They do not controvert the truth of the matters set out in the minute entry but contend that it was not timely entered of record.
The rule in this jurisdiction is clear that the submission and taking of the new trial motion under advisement operates to keep the motion alive until acted upon. See cases cited supra.
In the second place, we are bound by the transcript of the record, and it shows submission of the new trial motion on July 12, 1972. See et seq., Appeal & Error, 2 Ala. Digest. As already pointed out, defendants do not deny the truth of the statements in the minute entry dated July 12, 1972.
Moreover, assuming arguendo that the minute entry was entered up by the clerk as defendants contend, the failure of the *139 entry to be made at the time could be no more than a clerical oversight, since it simply confirms by a record recitation that which actually occurred on submission of the motion. We can see no impediment to the entry of such judgment or order nunc pro tunc.
Our recent decision in Guaranty Funding Corporation v. Bolling, 288 Ala. 319, 260 So. 2d 589 (1972), is pertinent authority here. There, the trial court was held to have abused its discretion in not granting defendant Guaranty's motion to amend nunc pro tunc by entering up an order or judgment showing that the court had overruled its demurrer to plaintiff's replication. The court had made such an order orally in open court (as in the case at bar), but had failed to enter up a bench note and the clerk had failed to make a minute entry. See also Ex Parte Phillips, supra.
The decision of the Court of Appeals in Ex Parte Drivers, 24 Ala.App. 557, 138 So. 427 (1931), is persuasive authority in support of the conclusion we have reached. In Drivers, the motion for new trial was timely filed and set for hearing on August 20, 1931. It was timely continued to September 5, 1931. No further orders are shown until the motion was granted on September 19, 1931. The same point was made there, as made in the case at bar, that a discontinuance had been effected. Petitioner there, as here, sought mandamus. By his return, the respondent judge showed the motion was actually submitted to the court on September 5, 1931, the day set for hearing the motion. The Court of Appeals, in an opinion authored by Presiding Judge Bricken, held that the trial judge's answer was sufficient to show submission of the motion on September 5, 1931, and this submission, and the taking of the motion under advisement, operated to keep the motion alive until acted on by the court.
In Cayson, supra, this court distinguished Drivers, by stating, viz:
We do not see any conflict between this statement and the holding we have reached. Again, we need not decide whether Drivers is correct. For, the instant case is stronger than Drivers, which rested solely on the judge's answer. While here, the minute entry provides a record sufficient to show the court took this cause under submission on July 12, 1972.
It is thus that this court concludes that no discontinuance was effected, the petition for mandamus is due to be denied, and the court may proceed to review this case on appeal and to consider whether the trial court erred in granting plaintiff a new trial.
The trial judge, in granting plaintiff a new trial in this case, specified no ground or grounds which it considered justified granting the motion.
It has long been the rule in this court, viz:
*140 Defendants contend the great weight of the evidence plainly and palpably supports the jury's verdict, citing Brown v. Cerco Enterprises, Inc., 286 Ala. 421, 240 So. 2d 671 (1970). Therefore, they insist the trial court's order granting a new trial must be reversed.
In Brown v. Cerco Enterprises, supra, the rules controlling appellate courts in the review of orders granting motions for new trial are set forth in some detail. These rules need not be repeated here.
The plaintiff insists that there were numerous conflicts in the evidence at trial, that different inferences could be drawn from the evidence and that the trial court was in a far better position than this court to evaluate these conflicts.
It would appear that the question which faces us is whether the evidence plainly and palpably supports the verdict. Put otherwise, the trial court's order granting a new trial is due to be reversed only if, after a review of the evidence, this court is satisfied that the great weight of the evidence plainly and palpably supports the verdict, or if we are convinced that the evidence plainly and palpably shows the trial court to be in error. Brown v. Cerco Enterprises, supra.
From a review of the evidence in this case, it is clear to us that it is in conflict. In view of a retrial, we will refrain from summarizing or commenting on the testimony. We simply state that, upon a review of the evidence, we cannot say that the great weight of the evidence plainly and palpably supports the jury's verdict. Nor can we say the trial court's order granting a new trial is plainly and palpably erroneous.
As has been many times stated as a rule of this court:
In view of the rules of this court governing the granting of new trials, the presumption in favor of the trial court's ruling and the conclusion which we have reached upon our review of the evidence, we hold the judgment of the trial court should be affirmed.
It may be well to state that we consider this holding to be sui generis with respect to the decision denying the petition for mandamus. This court does not hold, by this decision, that a trial judge could, without taking a motion for new trial under advisement, proceed to keep the motion alive without the record containing timely orders of continuance. Nor, do we hold that a trial judge may make an order nunc pro tunc to show something which in fact never occurred, i. e., the submission of the motion for new trial.
The prior holdings of this court in this respect are well stated in Moving Picture Machine Op. Local No. 236 v. Cayson, supra, which are restated for emphasis' sake, viz:
In the case at bar, as already indicated, it is this court's view that the instant record does contain a showing or statement *141 of submission such as to satisfy the rule of our cases.[1]
We presume it is unnecessary to caution trial judges that the far safer practice is to note by a proper written order or bench note the submission of a new trial motion at the time it is actually submitted and that it is then taken under advisement by the court. It may also be advisable to show such submission of the case in the subsequent order granting or overruling the motion for new trial.
Petition for Writ of Mandamus denied.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX, McCALL, FAULKNER, and JONES, JJ., concur.
COLEMAN, J., concurs in result.
[1] In passing, we note that Rule 59(g), Alabama Rules of Civil Procedure, adopted January 3, 1973, effective July 3, 1973, provides as follows:
"(g) Presentation of Motions Not Required. Presentation of any post-trial motion to a judge is not required in order to perfect its making, nor is it required that an order continuing any such motions to a date certain be entered. All such motions remain pending until ruled upon by the court, but shall not be ruled upon until the parties have had opportunity to be heard thereon." | April 5, 1973 |
e0f96ba4-e876-4f76-bcc8-9c9347d3f14d | Maslankowski v. Carter | 277 So. 2d 91 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 91 (1973)
Ex parte John A. Maslankowski.
In re John A. MASLANKOWSKI
v.
Eugene W. CARTER, as Judge of the Circuit Court of Montgomery County, Alabama.
SC 127.
Supreme Court of Alabama.
April 5, 1973.
Rehearing Denied May 10, 1973.
*92 Richard A. Ball, Jr., Montgomery, for petitioner.
Frank W. Riggs and Richard H. Gill, Montgomery, for respondent.
BLOODWORTH, Justice.
An original petition for mandamus was filed in this court praying that an alternative writ issue, directed to the Honorable Eugene W. Carter, as Judge of the Circuit Court of Montgomery County, commanding him to set aside an order entered by him on September 25, 1972, in the case of Sue C. Beam, a minor who sues by and through her mother and next friend, Barbara F. Quernemoen, v. John A. Maslankowski, or, in the alternative, to show cause why he should not do so. The petition prays for a peremptory writ upon the final hearing and for general relief.
This court granted the rule nisi on October 19, 1972. In response to the rule nisi, Judge Carter filed his answer on November 17, 1972, praying that the petition for writ of mandamus be dismissed and that the rule nisi be discharged. Petitioner has filed a motion to strike the answer, a demurrer to the answer and a replication to the answer.
Since neither the demurrer nor the motion are adequately argued in brief, we proceed to address ourselves to the merits of the case. Moreover, our cases hold it is unnecessary to demur or to move to quash the answer in order to raise the issue of its sufficiency. Longshore, Judge, etc. v. State ex rel. Turner, 137 Ala. 636, 34 So. 684 (1902); Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 260 So. 2d 589 (1972). We might say we consider the answer to be sufficient.
The petition, answer and replication disclose the following. A judgment was rendered against petitioner, John A. Maslankowski, on May 7, 1970, after a jury verdict for plaintiff in the amount of $125,000. On August 10, 1970, petitioner's insurance company paid the sum of $11,952.06 to the Clerk of the Circuit Court of Montgomery County, representing the policy limits and interest on the entire judgment to that date. (While we attach no significance to it, the judge's answer recites that the payment was made to avoid further interest on the entire judgment. Petitioner maintains respondent could not know its motives.) These funds were paid *93 over to the Probate Judge of Montgomery County by the circuit clerk and were ultimately expended by Sue Beam's guardian in Sue Beam's behalf, the payments having been authorized by the Probate Court. On appeal, this court reversed the judgment of the Circuit Court of Montgomery County. See Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972). Subsequently, in response to petitioner's motion for restitution of the $11,952.06, the Circuit Court of Montgomery County ordered the restitution of the funds in an order dated July 31, 1972. Following this order, petitioner sought by motion to require restitution of the funds as a condition precedent to the further prosecution of the cause. This motion was denied by order dated September 25, 1972. It is this order which the petitioner seeks to have set aside.
Petitioner argues in brief that a party who pays funds into court under a judgment which is subsequently reversed is entitled to restitution before the party receiving the money can proceed with a retrial of the case, citing Ex Parte Walter Bros., 89 Ala. 237, 7 So. 400 (1889); Ex Parte Wellden, 148 Ala. 429, 42 So. 632 (1906); Carroll v. Draughon, 173 Ala. 338, 56 So. 209 (1911).
In Ex Parte Walter Bros., supra, this court did hold that restitution was a right which was absolute after reversal, but that case was overruled by Carroll v. Draughon, supra. In Carroll, this court held, viz:
It is to be noted that in neither Ex Parte Wellden, nor in Carroll v. Draughon, both cited by the petitioner, was restitution compelled prior to retrial.
We believe that the case of McCall v. McCurdy, 69 Ala. 65 (1881), best states the rule with regard to restitution after reversal, as follows:
Respondent, Judge Eugene Carter, in his answer to the rule nisi states that it would constitute a "grave injustice" and would be "contrary to equitable principles" to require the minor to make restitution as a condition precedent to the further prosecution of this case. The answer states the minor has no funds with which to support herself and no assets except this chose in action against petitioner.
In Atlantic Coast Line R.R. v. Florida, 295 U.S. 301, 55 S. Ct. 713, 79 L. Ed. 1451 (1935), the Supreme Court of the United States, speaking through Mr. Justice Cardozo, stated the rule to be as follows:
We believe that the decision of this court in McCall v. McCurdy, supra, is in harmony with the rule just quoted, and that restitution after reversal is a matter which rests in the exercise of a sound discretion by the trial court. We are unwilling to grant the writ of mandamus in this case and to direct the trial court what conclusion it ought to reach.
In Ex Parte State, 251 Ala. 665, 38 So. 2d 560 (1949), this court held:
See also East v. Todd, 284 Ala. 495, 226 So. 2d 153 (1969).
Here, Judge Carter has ordered the restitution of the monies paid. Thus, he has acted with regard to the matter of restitution. The fact that Judge Carter refused to make the restitution of the funds a condition precedent to the further prosecution of the lawsuit, does not appear to us to have been an abuse of discretion, particularly in view of the uncontroverted assertions contained in his answer.
The rule nisi is discharged and the writ of mandamus is denied.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
COLEMAN, J., dissents. | April 5, 1973 |
336c2376-1299-4ac8-832e-8c632fcb9266 | Howard v. Pike | 275 So. 2d 645 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 645 (1973)
Nannie Lee HOWARD
v.
James R. PIKE.
SC 150.
Supreme Court of Alabama.
April 5, 1973.
*646 Butler & Potter, Huntsville, for appellant.
Martinson, Manning & Martinson, Huntsville, for appellee.
BLOODWORTH, Justice.
This is an action in ejectment brought by appellant against appellee to recover a tract of land located in Madison County, Alabama, and damages for the detention thereof. As the parties occupy the same position on this appeal as they did in the trial court, we will refer to appellant as plaintiff and to appellee as defendant. After hearing the cause ore tenus, the trial court found in favor of the defendant but made no findings of fact.
Plaintiff claims to be the niece and legal heir of Willie B. Howard, who died seized and possessed of the land which is the subject of this suit. According to the testimony, Willie B. Howard died intestate, leaving a widow but no surviving children, no *647 mother or father and no sisters or brothers entitled to inherit. Plaintiff's contention is that she is the only child of George L. Howard, deceased, the brother of Willie B. Howard. Defendant purchased the land from the widow of Willie B. Howard for $18,500.
Plaintiff asserts that she is the legitimate daughter of George L. and Ida Howard, being the offspring of their valid common law marriage or, alternatively, that she was legitimized by their ceremonial marriage which took place in 1941.
First, we consider plaintiff's contention that she is the legitimate daughter of George L. and Ida Howard, being the offspring of a valid common law marriage between them. A resolution of this issue in plaintiff's favor would have prompted a finding for her.
The evidence with regard to this issue was in conflict, with plaintiff's witnesses testifying that George L. and Ida Howard lived together and held themselves out to the public as man and wife at the time of plaintiff's birth in 1915, and defendant's witnesses testifying to the contrary.
In Flintkote Co. v. Grimes, 281 Ala. 707, 208 So. 2d 87 (1968), this court stated our rule of long standing:
Since the testimony with regard to the validity of the common law marriage was in conflict and the evidence taken ore tenus with the trial judge hearing and observing the witnesses as they testified, we will not disturb his ruling nor will we substitute our judgment for his on this issue. Flintkote Co. v. Grimes, supra.
Plaintiff contends that even if she was not legitimate at the time of her birth, she was legitimized by a subsequent ceremonial marriage entered into by George L. and Ida Howard in 1941. On the other hand, defendant insists that no valid ceremonial marriage could have taken place between George L. and Ida Howard, because at the time of the ceremonial marriage, Ida Howard was still married to Willie James Davis, whom she had married in 1918, and from whom she has not been divorced.
Of course, Ida Howard could not have entered into a marriage with George L. Howard if she were still married to Willie James Davis, for:
Title 27, § 10, Code of Alabama 1940, provides for legitimation by marriage as follows:
Recognition by the father of the child as his own is indispensable and is shown by the manner of treatment. Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929). Recognition must be "unambiguous and clear in its character." Martin v. Martin, 233 Ala. 310, 171 So. 734 (1937).
*648 Plaintiff asserts that the record is clear that George L. Howard recognized plaintiff as his daughter and that the "record is replete with evidence of such recognition." We do not find the record to be replete with evidence of such recognition. Nor, as we view the evidence, is it "unambiguous and clear" that George L. Howard recognized plaintiff as his daughter. Since there were no findings by the trial court, we do not know whether it rested its decision on a resolution of this issue or not. We do think there is evidence, or legitimate tendencies therefrom, which would justify the conclusion under our rules that the plaintiff was not recognized by her reputed father as his child.
While it may not be necessary that we answer defendant's contention that Ida Howard was still married to Willie James Davis at the time of her ceremonial marriage to George L. Howard in 1941, and therefore could not enter into a valid marriage with George L. Howard so as to bring the statute (Title 27, § 10, supra) into play, we hold that there was evidence, and legitimate inferences therefrom, sufficient to justify such a conclusion.
There arises in this case the presumption that the prior marriage of Ida Howard and Willie James Davis was dissolved by divorce. Jordan v. Copeland, 272 Ala. 336, 131 So. 2d 696 (1961). Plaintiff contends that this presumption was not overcome.
It has been held by this court:
This court stated in Jordan v. Copeland, supra, that:
The following from Bell v. Tennessee Coal, Iron & R. Co., 240 Ala. 422, 199 So. 813 (1941), was quoted with approval:
In the case at bar, Ida Howard testified that she never filed any divorce suit against Willie James Davis. Willie James Davis testified that he filed only one divorce action against Ida Howard, and that in Madison County. Defendant's Exhibit O was a trial docket sheet of the Madison County Circuit Court, in Equity, which revealed that case number 1143 was a divorce action brought by Willie James Davis against Ida Davis, which was dismissed
*649 without prejudice on May 20, 1921, for want of prosecution.
In Jordan v. Copeland, supra, we held that:
Similar evidence was held sufficient to overcome the presumption in James v. James, 260 Ala. 511, 71 So. 2d 62 (1954), and in Bell v. Tennessee Coal, Iron & R. Co., supra.
Therefore, we hold that there was sufficient evidence in this case from which it could have concluded that the presumption of the innocent second marriage was overcome.
Plaintiff asserts as error the striking and excluding of the answer of Ida Howard to the following question:
In State v. Giles, 41 Ala.App. 363, 133 So. 2d 62 (1961), the Court of Appeals held (per Harwood, P. J.):
The very issue to be determined in a bastardy proceeding is the paternity of the child. Here, one of the chief issues was the paternity of Nannie Lee Howard. Therefore, the same rationale leading to the holding in State v. Giles, supra, would obtain here. It was not error to exclude Ida Howard's answer to the above question.
Moreover, Ida Howard (mother of plaintiff) testified that she had had sexual relations with no person other than George L. Howard prior to the birth of the plaintiff, and this was in no wise contradicted by the defendant. Thus, error, if any, in excluding the above answer, was error without injury in view of this evidence by the mother as to plaintiff's paternity.
Finally, plaintiff contends that Title 16, § 7, Code of Alabama 1940, is unconstitutional in that it violates the Equal Protection Clause of the 14th Amendment to the United States Constitution. This contention is made for the first time on this appeal. This court on appeal will not consider constitutional questions which were not raised in the court below. Smith v. State, 280 Ala. 241, 192 So. 2d 443 (1966); Riley v. Smyer, 265 Ala. 475, 91 So. 2d 820 (1957).
In view of the conclusions which we have reached, the judgment of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | April 5, 1973 |
5036e0b1-c448-46e0-a2c2-78ba45b92087 | Corretti v. First National Bank of Birmingham | 276 So. 2d 141 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 141 (1973)
Douglas P. CORRETTI, as Administrator Ad litem of Estate of Margaret Gage Bush, Deceased
v.
The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee under the Will of Morris W. Bush, Deceased, et al.
SC 159.
Supreme Court of Alabama.
April 5, 1973.
*142 Corretti, Newsom, Rogers, May & Calton, Birmingham, for Douglas P. Corretti, Administrator Ad Litem of the Estate of Margaret Gage Bush, deceased, for appellant.
Abe Berkowitz, Jackson M. Payne, Birmingham, Sydney R. Prince, III, Mobile, for appellees Gage Bush Englund and Sydney R. Prince, III as Executors Under the Will of Margaret Gage Bush and Gage Bush Englund, Individually.
Lucien D. Gardner, Jr., and E. T. Brown, Jr., Birmingham, for appellee The First National Bank of Birmingham as *143 Trustee under the Will of Morris W. Bush.
PER CURIAM.
This appeal challenges a decree of the Circuit Court of Jefferson County, in Equity, in regard to the sources from which compensation is to be paid to a testamentary trustee.
Morris W. Bush died on January 24, 1932. His will was duly admitted to probate by the Probate Court of Jefferson County on February 10, 1932.
The First National Bank of Birmingham was appointed both executor and trustee. For the purposes of this appeal, November 6, 1933, is treated as the day on which the order was rendered by the Probate Court authorizing The First National Bank of Birmingham as executor to deliver to itself as trustee the assets of the residuary estate of Morris W. Bush, deceased, and as the day on which the transfer was made. In other words, we will treat the trust as having been funded or established for implementation on November 6, 1933.
On the day that the trust was established, Mrs. Margaret Gage Bush, the widow of Morris W. Bush, was the sole beneficiary and was entitled to receive all of the net income from the trust estate.
Mrs. Margaret Gage Bush died on June 27, 1971. At the time of her death Mrs. Gage Bush Englund, the daughter of Morris W. and Margaret Gage Bush, became the sole income beneficiary of the said trust estate under the terms of the will of Morris W. Bush.
The will, the trust instrument, provided that the trustee be compensated for its services as follows:
We are concerned here only with the ten-year compensation.
November 6, 1943, was the first date that the ten-year compensation was payable to the trustee under the literal language of the provisions of the will above quoted. It was deducted by the trustee from the income of the then life beneficiary, Mrs. Margaret Gage Bush in several installments during the years 1943 and 1944.
On February 27, 1948, the head of the trust department of the trustee bank wrote Mrs. Bush, the then life beneficiary, pointing out the large amounts which had been deducted from her income over a limited number of years in order to pay the trustee its ten-year compensation due and payable on November 6, 1943. In that letter, the trust officer suggested that the trustee begin to set up a reserve for the purpose of reducing the burden on Mrs. Bush of paying the ten-year compensation in any one year. The trust officer further suggested to Mrs. Bush that the reserve be spread over a period of six or seven years and advised her that the reserve could be invested with the income therefrom paid to Mrs. Bush until the ten-year compensation was actually due and paid. Mrs. Bush gave her written approval to the suggestions made to her in the trust officer's letter of February 27, 1948.
The plan for spreading the ten-year compensation which was finally adopted by the trustee was not the plan suggested in the letter of February 27, 1948.
The plan which the trustee adopted for that purpose called for Mrs. Bush to pay the ten-year compensation that would be due on November 6, 1953, and each ten-year *144 period thereafter in ten annual installments, by deductions out of income during each of the five years preceding the due date of the compensation and each of the five years following the due date. The five annual installments payable prior to the due date were based on the amount of the ten-year compensation on the last preceding due date, and were each one-tenth of that amount. When the due date of the ten-year compensation arrived, the actual amount of the compensation would be determined based on the fair market value of the corpus at that time. The sum of the five annual installments which had been paid would be deducted from the amount of the compensation as so computed, and the balance of the compensation would be divided into five annual installments and deducted from income in the succeeding five years.
The plan as adopted was set out in a memorandum of the trust department of the trustee bank dated March 31, 1948. It is apparent from the memorandum that its author was of the opinion that it was within the scope of the suggestions made by the trust officer in his letter to Mrs. Bush under date of February 27, 1948, which suggestions, as shown above, met with the approval of Mrs. Bush. But Mrs. Bush did not expressly give her approval to the plan set out in the interoffice memorandum of March 31, 1948.
The trustee began to implement that plan in May, 1948, and continued to follow it with respect to the ten-year compensation. From the time the plan was implemented in May, 1948, until Mrs. Bush's death, the trustee rendered regular reports to her showing the deductions of compensation. There is nothing to indicate that Mrs. Bush ever objected to that method of paying the trustee the ten-year compensation.
The reasonable value of the principal of the trust has increased in each ten-year period. The ten-year compensation, therefore, has been larger in each successive ten-year period. As a consequence, the amount of each installment deducted from Mrs. Bush's income during the five years preceding the due date was less than the amount of each of the five installments deducted after the payment date.
The amount of the ten-year compensation payable November 6, 1963, was $125,459.28. That compensation was deducted by the trustee out of income pursuant to the plan, the last deduction being made May 6, 1968.
The next date on which the ten-year compensation will be due is November 6, 1973. Pursuant to the plan, the trustee deducted out of income with respect to the ten-year compensation that will be due it in 1973, the sum of $12,545.95 in each of the years 1969, 1970 and 1971. As a result of such deductions and partial payments, Mrs. Margaret Gage Bush contributed during her lifetime out of income of the trust estate otherwise payable to her the sum of $37,637.85 toward the payment of the ten-year compensation which will be due the trustee on November 6, 1973.
After the death of the first life income beneficiary, Margaret Gage Bush, the succeeding life income beneficiary Gage Bush Englund in her individual capacity made known to the trustee bank that she took the position that the expense of the ten-year compensation which will be due under the provisions of the trust instrument on November 6, 1973, should be apportioned between the estate of Mrs. Margaret Gage Bush and herself on the basis of their respective life interests during the period from November 6, 1963, to November 6, 1973; that the estate of Margaret Gage Bush should bear its said portion of such expense; and, that no part of such portion should be deducted from the income of the trust estate earned or accrued after June 27, 1971, the day on which Margaret Gage Bush died, which is due to be paid to Gage Bush Englund as the succeeding life income beneficiary.
The trustee bank being in doubt as to whether the estate of Margaret Gage Bush *145 should pay any portion of the ten-year compensation for the period beginning November 6, 1963, and ending November 6, 1973, and being in doubt as to the portion of such compensation to be borne by Gage Bush Englund from the income of the trust estate earned and accrued since June 27, 1971, instituted this proceeding against Gage Bush Englund and Sydney R. Prince, III, as executors of the will of Margaret Gage Bush, deceased, to secure instructions and declarations as to how to properly administer the trust in regard to the ten-year compensation for the period of time last above mentioned, and in another respect not involved on this appeal.
The respondents Gage Bush Englund and Sydney R. Prince, III, having advised the trustee bank, the complainant, that they felt disqualified to represent the estate of Margaret Gage Bush as co-executors in this litigation because the interest of Gage Bush Englund and her attorney Sydney R. Prince, III, were adverse to the interest of the estate of Margaret Gage Bush, the complainant requested the court to appoint an administrator ad litem to represent the estate of Margaret Gage Bush in this particular suit.
This request was granted and the trial court promptly appointed Douglas P. Corretti, Esquire, a distinguished member of the Jefferson County Bar to serve as administrator ad litem of the estate of Margaret Gage Bush in this litigation.
The administrator ad litem filed an answer wherein he denied all the allegations of the bill of complaint and demanded strict proof thereof.
The respondent Gage Bush Englund, in her answer, admitted all of the matters contained in the stating part of the bill and although her position in regard to sources from which the compensation payable to the trustee bank on November 6, 1973, should be paid was alleged in the bill of complaint, she affirmatively alleged in her answer as follows:
The respondent Sydney R. Prince, III, did not answer. He was one of the attorneys who filed the answer on behalf of the respondent Gage Bush Englund, and he represented her in her individual capacity in the trial below. He had represented her previously. It was because of such representation that he felt disqualified from representing the estate of Margaret Gage Bush as co-executor in this litigation.
The testimony was taken ore tenus. Only one witness was examined, Jack G. Paden, an executive vice president and head of the trust department of the trustee bank.
The trial court rendered a decree which as duly modified "Ordered, Adjudged and Decreed," in part, as follows:
The administrator ad litem has appealed to this Court from the original decree and from the decree which modified the original decree. See Equity Rule 62.
The administrator ad litem will be referred hereinafter as the appellant. He has made five assignments of error which are properly argued together in brief filed here on his behalf in that they present the single question, (Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674) did the trial court err in apportioning the ten-year compensation which will be due the trustee bank on November 6, 1973, between the estate of Margaret Gage Bush and the respondent Gage Bush Englund on the basis of the duration of their respective life interests during the ten-year period from November 6, 1963, to November 6, 1973.
As a general principle when a trustee is in doubt as to the extent of his powers or as to the proper manner in which to proceed under the trust, he may apply to a court of equity which will interpret the trust instrument if it is ambiguous, uncertain in its meaning or difficult and embarrassing in its interpretation. Gilmer v. Gilmer, 245 Ala. 450, 17 So. 2d 529 and cases cited; Sanderson v. Gabriel, 246 Ala. 493, 21 So. 2d 256; Riley v. Wilkinson, 247 Ala. 231, 23 So. 2d 582; Kimbrough v. Dickinson, 247 Ala. 324, 24 So. 2d 424; Peach v. First Nat. Bank of Birmingham, 247 Ala. 463, 25 So. 2d 153; Thurlow v. Berry, 247 Ala. 631, 25 So. 2d 726.
The compensation fixed by a trust instrument is subject to judicial construction in doubtful cases. Birmingham Trust & Savings Co. v. Hightower, 233 Ala. 39, 169 So. 878; Home Oil Mill v. Willingham (D.C.Ala.) 68 F. Supp. 525. The court must determine as best it can the meaning of the trust provision in question by seeking to ascertain the intention of the settlor for his intent and purpose is the law of the trust. Thurlow v. Berry, supra. See In Re Erickson's Estate, 184 Misc. 830, 56 N.Y.S.2d 707.
But where there is no bona fide doubt as to the true meaning and intent of the provisions of the instrument creating the trust or as to the particular course which the trustee should pursue, there is no need for court action. Birmingham Trust & Savings Co. v. Cannon, 204 Ala. 336, 85 So. 768; Hoglan v. Moore, 219 Ala. 497, 122 So. 824. That rule applies in declaratory judgment proceedings as well as in cases where the interpretation is sought under the general authority of equity courts over trusts. Merchants National Bank of Mobile v. Cowley, 265 Ala. 125, 89 So. 2d 616; Roberts v. Roberts, 269 Ala. 441, 114 So. 2d 139.
We entertain the view that the provisions of the trust instrument which pertain to the time and source of payment to the trustee bank of the ten-year compensation are so uncertain and difficult of interpretation that a court of equity should intervene to give guidance and direction to the trustee. The right of the trustee to obtain the instructions and declarations for which it prayed was not questioned in the trial court nor is that right challenged here.
We come to a consideration of the sole question before us which as indicated above is whether the trial court erred in apportioning the expense of the ten-year compensation that will be due the trustee on November 6, 1973, between the estate of Mrs. Margaret Gage Bush (the first life beneficiary) and Mrs. Gage Bush Englund (the succeeding life beneficiary) on the basis of their respective life interests during the period November 6, 1963, to November 6, 1973.
The appellant takes the position that Mrs. Gage Bush Englund should bear the entire cost, saying, in brief:
"... the administrator's position is that all of the two percent (2%) ten *147 (10) year bonus compensation must `be deducted from the income of the trust estate' generated after the ten (10) year anniversary date, which in this case is November 6, 1973. Otherwise, the trustee's two percent (2%) ten (10) year compensation would have to come out of the personal assets of the life beneficiary or as in the case at hand, from the assets of the estate of the deceased life beneficiary. There is no way of telling whether or not any of the present assets of the estate of Margaret Gage Bush were derived from income generated from the trust or whether or not they were generated by sources separate and apart from the trust income. For aught that appears, Margaret Gage Bush may have lived off the trust income and conserved her separate and private estate. Once income was paid to Mrs. Bush, said income lost its identity as such and was merged into Mrs. Bush's personal estate." (Emphasis supplied.)
We do not agree with that contention.
In its simplest elements a trust is a confidence reposed in one person, the trustee, for the benefit of another, with respect to property held by the trustee for the benefit of the cestui que trust. Teal v. Pleasant Grove Local Union No. 204, etc., 200 Ala. 23, 75 So. 335.
It is the duty of the trustee not only to hold and manage the trust property for the beneficiary but to disburse the proceeds of the trust estate to the beneficiary according to the terms of the trust. Teal v. Pleasant Grove Local Union No. 204, etc., supra.
For the performance of the duties imposed by the trust instrument, the trustee is entitled to be compensated in accordance with the provisions made therefor in the trust instrument. Seiple v. Mitchell, 239 Ala. 533, 195 So. 865.
It is not provided in the trust instrument that the current compensation is only to compensate the trustee for the performance of its duties in connection with the disbursement of income to the life beneficiary or that the ten-year compensation is to compensate the trustee only for carrying out its duties in regard to the holding and management of the trust property. The trustee is compensated in the two ways for performing all of the duties imposed upon it by the trust instrument.
At the time of her death, Mrs. Margaret Gage Bush had benefited from the services rendered by the trustee in the performance of all of its duties. She had apparently been paid income from the trust estate by the trustee when she requested payments. The trust instrument directed the trustee to pay her during her life: "... the entire net income from said trust estate in such installments as may be found most satisfactory to her. ..."
Irrespective of whether the income which had been paid Mrs. Bush from the trust estate had been expended by her, the fact remains that her estate was better off because of such payments. In other words, it is our view that her estate benefited by the services rendered by the bank to the trust estate and to Mrs. Bush as life beneficiary and that Mrs. Bush's estate should not be immune from paying for those services simply because her trust income may have been expended by her or may have been co-mingled with assets generated from other sources.
The fact that the ten-year compensation was not payable until "... the end of each ten (10) year period ..." was not in our opinion, a condition precedent to the vesting of the trustee's right of payment but was simply a direction by the settlor of the trust as to the time and manner of payment. A proportionate amount of the ten-year compensation vested in the trustee continuously with the passage of time and as services were rendered to the trust estate. See Union Safe Deposit and Trust Co. v. Dudley, 104 Me. 297, 72 A. 166. Thus at the time of *148 Mrs. Bush's death, 76.39 percent of the ten-year compensation had accrued and was owed even though it was not payable until November 6, 1973.
The interpretation of the ten-year compensation provisions in the trust instrument insisted upon by the appellant would bring about an inequitable and we think unintended result. Even though Mrs. Bush received the benefits of the trustee's services for 76.39 percent of the ten-year period in question, her estate would not be required to pay the proportionate costs of those daily and continuous services which inured to the benefit of the estate as well as to Mrs. Bush. We do not think it was the intention of the settlor of the trust to require the succeeding life beneficiary to bear the entire cost of the ten-year compensation in the event the first life beneficiary died during a ten-year period which was indeed most likely to occur.
It is a general rule that trust estates are to be administered impartially for the benefit of all cestuis que trust alike, if they are in the same class. Where there are successive cestuis que trust, the trustee must act with a fair and impartial attention to the interests of each. First Nat. Bank of Montgomery v. Sheehan, 220 Ala. 524, 126 So. 409.
Appellant's contention presently under consideration is not in accord with the principles relating to the apportionment of expenses between a life beneficiary and a remainderman, or, as in this case, successive life beneficiaries. See Restatement (Second) Trusts, § 233, Comment o; Restatement (Second) Trusts, § 237, Comment e; 3 Scott, Trusts (3rd Ed.) § 233.
In 1939, the Uniform Principal and Income Act with slight variations was adopted in this State. Act No. 572, approved September 19, 1939, General Acts 1939, page 902. The provisions of said Act are now codified as Sections 75-87, Chapter 10, Title 58, Code 1940.
Appellant urges that the provisions of the decree of the trial court here under review run counter to the hereinafter quoted language of Section 86, Title 58, Code of 1940:
We pretermit a consideration of the reason why appellant says that the above quoted language of Section 86, Title 58, operated to prevent the trial court from legally apportioning the ten-year compensation as it did in the decree here reviewed, because this Court has held that our Uniform Principal and Income Act does not apply to "transactions" which were effected before the statute was enacted. Marks v. Brightwell, 269 Ala. 506, 114 So. 2d 268; Toolen v. Amos, 259 Ala. 346, 67 So. 2d 8; Dillard v. Gill, 254 Ala. 5, 47 So. 2d 203; First Nat. Bank of Mobile v. Wefel, 252 Ala. 212, 40 So. 2d 434; First Nat. Bank of Tuskaloosa v. Hill, 241 Ala. 606, 4 So. 2d 170; cf. Linenthal v. Birmingham Trust & Savings Co., 249 Ala. 631, 32 So. 2d 368. See Re Warden's Trust, 382 Pa. 311, 115 A.2d 159; 69 A.L.R.2d 1137.
The facts in the Marks case, supra, are similar in some important respects to the facts of this case. In both cases, the settlor of the trust died prior to the enactment of the Uniform Principal and Income Act, supra. In the Marks case, supra, the life beneficiary died after the enactment of that act as did the first life beneficiary in this case. In the Marks case, supra, this Court said: "The Uniform Principal and Income Act does not apply to the instant case because the transaction was effected before the statute was enacted." (Emphasis supplied.) We think the language just *149 quoted from the Marks case, supra, is equally applicable to the instant case.
We are not concerned on this appeal with the manner in which the trustee bank handled the collection of the ten-year compensation during the lifetime of Mrs. Margaret Gage Bush.
We are concerned on this appeal only with the provisions of the decree of the trial court under attack in this Court. Finding no merit in the assignments of error, the decree 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.
HEFLIN, C. J., and COLEMAN, BLOODWORTH, McCALL and JONES, JJ., concur. | April 5, 1973 |
9e6cff55-0f5e-44ef-9f0d-9992c8a78046 | Cooks v. State | 276 So. 2d 640 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 640 (1973)
In re Jasper Lee COOKS, alias
v.
STATE.
Ex parte Jasper Lee Cooks.
SC 325.
Supreme Court of Alabama.
April 19, 1973.
David L. Barnett, Mobile, for petitioner.
FAULKNER, Justice.
Petition of Jasper Lee Cooks for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision in Cooks alias v. State, 50 Ala.App. 49, 276 So. 2d 634.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | April 19, 1973 |
4161cb0b-be9b-4320-8fd5-88eea02b346b | Roberts v. Brewer | 276 So. 2d 574 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 574 (1973)
James W. ROBERTS
v.
William D. BREWER et al.
SC 80.
Supreme Court of Alabama.
April 19, 1973.
*575 Stova F. McFadden and Ray G. Riley, Jr., Mobile, for appellant.
Herndon Inge, Jr., Mobile, for appellees.
HARWOOD, Justice.
The complainants William D. Brewer, Viola C. Brewer, and Marguriette Davis, own land through which flows Baker Creek. The creek flows from their land onto and through land owned by A. L. Dees and M. Dees, and thence through land owned by the respondent James W. Roberts.
Beavers have built a dam across Baker Creek on respondent's land just over the *576 boundary line separating the respondent's land from the Dees' land. Dawes road and Ware road, two county roads, run through or along the borders of the Dees' land and that owned by the complainants and respondent. For a better understanding of the geographical situation, we here copy a diagram appearing in the brief of the appellant, who was the respondent below.
The complainants' bill contains, among others, the following pertinent paragraphs:
The bill prays that the court find that the acts of the respondent as set forth in the bill are a nuisance to the complainants, and that the respondent be ordered within a time set by the court to remove said dam, and if respondent fails to so do that the complainants be accorded the right to enter upon the land of the respondent and do all things necessary to remedy said condition and abate the nuisance, or to remove the dam. The prayer concludes with a prayer for general relief.
The respondent filed a demurrer to the bill as a whole, and separate demurrers to that aspect of the bill alleging that the respondent is negligently maintaining or suffering a dam to be located on his property causing water to back up on complainants' property, and to that aspect of the bill alleging a nuisance. Numerous grounds are set forth in support of each of these separate demurrers.
Upon submission for a decree on respondent's demurrer, the court decreed that:
Thereafter the respondent timely filed an answer.
At the hearing below Marguriette Davis, one of the complainants, testified that she has resided on her property for approximately nine years. The tract of land she originally purchased slopes from Dawes road down toward Baker Creek. Baker Creek runs entirely through her property, and at the time she purchased her property it was from 4 feet to 75 wide, and seldom overflowed its banks.
A pond had been dug by her grantor adjacent to Baker Creek which was filled by water from the creek. A peninsula about 100 feet long ran into the pond. The peninsula now covered with about a foot or a foot and a half of water. In addition, Baker Creek now is some 200 to 300 feet wide on her property.
Mrs. Davis testified that she had talked with the respondent about the beaver dam and he had told her he was "not worried *578 about it cutting my trees, that it was cutting his trees too and it was backing up on his land, and he was not going to do anything about it, that the dam was going to stay there."
The backing up of the water by the beaver dam had caused snakes to come into her yard, and a great infestation of mosquitoes. Two-thirds of the young hardwood trees standing in water have died, and pine trees on her property, some from 50 to 75 years old, have been girdled by the beavers.
On cross examination, Mrs. Davis testified that the beaver dam on respondent's land had been broken three times before by the county, and the "county" had promised her to break it again. However, after a county commission meeting attended by a large number of people, the record shows that when the county employees came to remove the dam, they were not allowed to do so. The matter was not pressed, and the result was that the county raised Ware road some two or three feet to prevent the water from the beaver dam from washing over it.
Mrs. Davis further testified that the beavers have now built another dam located on the Brewer land, and have started a third dam on her land. These are shown as dams Nos. 2 and 3 on the diagram ante.
Complainant William D. Brewer testified he had bought his property from Mrs. Davis in 1970. At that time some water was out of the original banks of Baker Creek, but he could walk within 25 or 30 feet of the creek. Now the water makes a big pond on his property, and comes on his land some 200 or 300 feet. Mr. Brewer estimates the height of dam No. 1 to be about five feet. The dam on his property (dam No. 2) is about 8 to 10 inches above the water.
He had completely removed the dam on his property several times but the beavers have rebuilt it. Water and beavers have killed some trees on his property.
Mr. Brewer testified he did not know too much about beavers, but he assumed the only way to keep them from rebuilding the dams would be to remove them to some other place. As to whether they would return is a problem for the future, and he was speaking of the problem now existing, and he was asking that dam No. 1 be removed.
Since the height of Ware road was increased, the water backs up in ditches along the road. The county agreed to destroy dam No. 2 which is on his property and partly on the county right-of-way.
Mrs. Viola Brewer testified that when she and her husband first bought their property a stick dropped in Baker Creek from the bridge (Ware road bridge) would move on out of sight. Today, the water is not moving at all.
Her husband has destroyed dam No. 2 several times, and she was present on two of these occasions. The last time removing dam No. 2 did no good, as the water level on both sides of the dam was about the same.
Roy Price, a district forester with the Alabama Forestry Commission, examined the area in question in February 1970. Part of Mr. Price's duties has been to advise with private land owners concerning timber problems, and he has considered many situations involving beavers. He has studied beavers and has written articles about them.
He observed the area in question from Dawes road, and walked Ware road along complainants' property.
He thought that the beaver colony in the area would number between ten and fifteen beavers. After his inspection, Mr. Price made a report to his superiors in which he stated there was a great deal of flood water on the property of the complainants, with damage to trees on their property. Further up Baker Creek there was fairly severe damage from beavers to timber on land owned by Mr. Marsh. The *579 Marsh land adjoins that of the complainants.
Mr. Price testified that the only natural enemies of beavers are alligators, and therefore beaver control is a very difficult problem. If a beaver dam is destroyed, the beavers normally rebuild it in a short time. If the beavers are destroyed but the dam is left intact, a new colony of beavers will move in.
Mr. Price recommended that the water level behind dam No. 1 be lowered sufficiently to drain the water from complainants' land. The best method of accomplishing this would be by placing perforated metal pipes in the dam. If an ordinary pipe be used, the beavers will promptly stop it up.
In addition, the beaver colony should be reduced by trapping, leaving two or three beavers. This, for the reason that the remaining beavers will prevent new beavers from moving in. The population growth of a beaver colony is controlled by the area of the water created by a beaver dam.
After building a primary dam, beavers then build secondary dams so that destruction of the primary dam will not result in total loss of backed up water. Mr. Price considered the dams above dam No. 1 to be secondary dams.
The respondent presented no evidence at the hearing below, but at the conclusion of complainants' case, respondent filed a plea in abatement. The basis of the plea was that if the relief prayed for be granted, A. L. Dees and M. Dees will suffer irreparable harm to their property (by the drainage of the pond created thereon) and therefore they have an interest in this proceedings and are essential parties thereto.
On 10 December 1971, the Chancellor entered his decree. He found that Baker Creek is a natural water course draining the lands of the complainants, and others; that a dam was constructed across Baker Creek on respondent's land which has caused a considerable amount of water to be impounded on the property of respondent, and upon the property of A. L. Dees and M. Dees, who are not parties to this suit; that the backing up of the water has created a potential health problem; that respondent has refused to remove the dam on his property at complainants' request; that based on the testimony of District Forester Roy Price, which the court believed, the destruction of the dam or dams alone will not alleviate the flooding problem, and the most feasible method of returning Baker Creek to its natural bounds would be to lower the water level of the water south of the dam located on respondent's property, accompanied by trapping and relocation of a portion of the beaver colony. The Chancellor further stated in his findings:
The Chancellor thereupon ordered, adjudged and decreed:
1. That the plea in abatement be denied.
2. That the respondent is ordered to permit the complainants, their servants, agents, or employees to enter upon the triangular portion of his property north of Dawes road, at a reasonable time within 60 days from the date of the decree, for the purpose of inserting, at their own expense, metal pipes as may be required to lower the water level south of said dam to a level of not more than two feet below the present level, and if the drainage of complainants' land is not so accomplished, then upon proper petition and proof, the complainants shall have the right to enter upon said premises for the purpose of removing said dam.
*580 It was further ordered that all parties take whatever steps were necessary to reduce the size of the beaver colony, including trapping or killing the beavers as authorized by Act No. 242 of the 1971 Regular Session of the Alabama Legislature.
Thereafter, on 4 February 1972, apparently ex mero motu, the Chancellor amended his decree of 10 December 1971, by allowing the complainants an additional 60 days in which to attempt to lower the water level behind the dam.
On 17 April 1972, the complainants filed a motion to modify the original decree. In support of this motion, the complainants asserted that they had attempted to secure the services of the Mobile County Road Department to lower the dam (water level) and the respondent had agreed to permit the County Road Department to go on his premises for the purpose of lowering the water level, but before doing so he required that the complainants sign a letter "confirming" that once the drains were installed no further efforts to destroy the dam were to be made. The complainants asserted that such requirement was an unreasonable limitation upon their efforts to lower the water level since the order of the court provided that if the attempted lowering by pipes was not successful the court, upon proper petition, would give the complainants the right to enter upon respondent's premises for the purpose of removing the dam. The motion carried a certificate of counsel for complainants that on 14 April 1972, a copy of the motion had been served on counsel for all parties by mailing, etc.
On 7 June 1972, the Chancellor, after a hearing, entered a decree modifying his original decree of 10 December 1972. In the modification, the Chancellor ordered, adjudged and decreed that the respondent permit the complainants to enter upon the triangular portion of his land for the purpose of removing the beaver dam located thereon at complainants' expense. It was further ordered that the complainants should be liable to the respondent for any damages to respondent's land caused by removal of the dam, and costs were taxed against the complainants.
The respondent duly filed an application for a rehearing and to set aside the modified decree. The basis of the application was that the court had lost jurisdiction of the cause at the time of the attempted modification, and that the modification was not supported by the evidence presented in support thereof. This application for rehearing was denied and the costs taxed against the respondent.
The respondent gave notice of appeal from the modified decree of 7 June 1972, which empowered the complainants to enter upon the property of the respondent for the purpose of destroying the beaver dam, "and from all other matters in the premises." Thereafter an appeal was perfected to this court.
Appellant (respondent below) has properly joined for argument assignments of error Nos. 5 and 7. These assignments are to the effect that the Chancellor erred in his attempted modification of the original decree in that more than thirty days had elapsed since the entry of the original decree.
Argument of counsel for appellant in support of assignments of error Nos. 5 and 7, would equate the modification of the decree to altering a final decree after thirty days has elapsed from the date on which it was entered.
Equity decrees may be partly final and partly interlocutory. If there is a decree directing further proceeding under the direction of the court, such decree is interlocutory. In the aspect of further contemplated proceedings the cause remains in fieri. Newton v. Ware, 271 Ala. 444, 124 So. 2d 664.
The thirty day limit of Section 119, Title 13, Code of Alabama 1940, applies only to final decrees.
*581 While Equity Rule 65, and Section 119, Title 13, Code of Alabama 1940, provide that a court loses power over a decree after the lapse of thirty days in the absence of any application for rehearing, such provisions apply to final decrees and not to interlocutory decrees. Carter v. Mitchell, 225 Ala. 287, 142 So. 514; Sawyer v. Edwards, 200 Ala. 26, 75 So. 338.
In Sawyer v. Edwards, supra, it was stated:
It is to be noted that the Chancellor specifically provided in his original decree that "if drainage be not accomplished by said overflow pipes * * * upon proper petition and proof of same to this Court Complainants shall have the right to enter said premises for the purpose of removing said dam."
We think it clear that by the above provision the court retained the power of providing the ultimate relief sought by the complainants, i. e., the drainage of the water backed up on their property by the beaver dam.
The removal of the dam would give, at least presently, the ultimate relief sought. While under the testimony of Mr. Price, we are uncertain as to the permanency of this relief, that is that the beavers might not restore the dam, this is a matter depending upon future developments.
We hold that the Chancellor did have the power to recast his decree of 10 December 1971, to empower the complainants to destroy the dam under the conditions specified. Particularly is this true in view of respondent's attempt to limit complainant's efforts to a one time attempt. Such limitation was contrary to the original decree which specifically gave the complainants the right to destroy the dam if the attempt to lower the level of backwater from the dam proved inefficacious.
Appellant's assignment of error No. 4 asserts error in the action of the court in overruling appellant's plea in abatement.
It is the contention of the appellant that the testimony of Mrs. Marguriette Davis shows that part of the beaver dam was upon the land of the Dees, and for this reason the Dees must be considered as essential parties in this proceedings. We do not agree that Mrs. Davis' testimony establishes that a part of the beaver dam was on the Dees' property.
Repeatedly during her examination, Mrs. Davis testified that the beaver dam was on Roberts' land, as shown by the following excerpts from the record:
"A. It's located just within the line of Mr. James Roberts.
"Q. Has he always stated that it [dam] was on his property?
"A. Yes.
"A. Yes.
"A. Yessir, this is his property line right here."
The record shows that at the opening of the hearing below counsel for respondent had drawn a rough sketch on a blackboard *582 of the area in question. At one time during her testimony as shown above, and prior to the question by the court, the record shows:
A careful reading of Mrs. Davis' testimony shows that it was in reference to an unidentified sketch not shown in the record. Her nebulous answer is not of sufficient certainty to overcome her clear and positive answer as to the location of the dam.
Counsel for appellant further argues that since a large pond of water was created on the property of the Dees by the erection of the beaver dam, the Dees have gained an interest in the maintenance of such pond, and in this light should be considered as essential parties.
The fallacy of this argument is that a third party cannot be deemed to acquire an interest in the maintenance of a nuisance injurious to another party merely because an abatement of the nuisance might affect in some way the property of such third party.
It is a legal right of every riparian proprietor to have a natural stream flow through his land in its natural channel, without obstruction or alteration even in its natural level, Wright & Rice v. Moore, et al., 38 Ala. 593, and any obstruction resulting in the unnatural enlargement of a stream to the injury of an upper proprietor gives to the upper proprietor a right of action. Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641.
Further, to be an essential party in a legal proceeding in whose absence a court will not proceed to a final decree, one must have a material interest in the issue which will necessarily be affected by the decree. Hodge v. Joy, 207 Ala. 198, 92 So. 171.
In Hodge v. Joy, supra, the court quoted the following from Story's Eq. Pleading, 10th Ed. p. 75, which we think applicable to the point now being considered as to who are interested parties:
The issue in the present suit, and the object thereof, was the abatement of a nuisance injurious to the complainants resulting from a beaver dam on the land of the respondent Roberts. The complainants and the respondent were the parties having a legitimate interest in this issue.
We hold that the Chancellor did not err in denying respondent's plea in abatement. We conclude, therefore, that assignment of error No. 4 is without merit.
Appellant's assignment of error No. 2 is to the effect that the court erred in overruling respondent's demurrer to that aspect of the complaint charging respondent with negligence.
The complaint charged that the respondent was negligently maintaining or suffering the dam to be on his property (paragraphs 7 and 8). Since the Chancellor found that respondent "has no legal liability to remove the dam" and refused to order the respondent to remove the dam, but only ordered that complainants be permitted to enter upon respondent's land for the purpose of removing the dam, no error probably injurious to any substantial right of the respondent could have resulted from this ruling. Sup.Ct. Rule 45.
*583 Assignment of error No. 3 charges error because of the action of the court in overruling respondent's demurrer to that aspect of the bill alleging a nuisance.
Section 1081, Title 7, Code of Alabama 1940, defines a nuisance as follows:
Clearly under the evidence the complainants were hurt and damaged by the flooding of their lands resulting from the beaver dam. The court found that the complainants, by their evidence, showed a right to equitable relief. We agree.
Further, the ruling of the Chancellor on the demurrer was general, merely overruling the demurrer. When demurrers are addressed to the bill as a whole and to specific aspects thereof, but the ruling of the Chancellor is general, such ruling constitutes only a ruling on the bill as a whole, and only those argued grounds going to the bill as a whole will be considered. Rowe v. Rowe, 256 Ala. 491, 58 So. 2d 749; Adams v. Woods, 263 Ala. 381, 82 So. 2d 531; City of Mobile v. Wooley, 278 Ala. 652, 180 So. 2d 251.
In testing the general equity of a bill, the court considers the substance of the allegations, not the form of the bill, nor the manner of stating the facts, nor the specific relief prayed for, and all amendable defects are treated as amended. A general demurrer is properly overruled if the bill contains any equity. Cherry Investment Co. v. Folsom, 273 Ala. 575, 143 So. 2d 181, and cases cited.
Having determined that the complainants were entitled to equitable relief, the Chancellor molded his decree so as to give the complainants relief, but without infringing improperly on any rights of the respondent. The decree is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | April 19, 1973 |
42f146fa-f6bd-4485-945d-90e42a4d0022 | Swain v. State | 274 So. 2d 305 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 305 (1973)
Robert SWAIN
v.
STATE of Alabama.
7 Div. 796.
Supreme Court of Alabama.
March 8, 1973.
BLOODWORTH, Justice.
Robert Swain was convicted of rape and sentenced to death by electrocution by a jury in Talladega County, Alabama. Judgment and sentence imposing the death penalty were entered accordingly.
This court affirmed the conviction and sentence in Swain v. State, 275 Ala. 508, 156 So. 2d 368 (1963), rehearing denied September 26, 1963.
The Supreme Court of the United States affirmed in 1965. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759, rehearing denied 381 U.S. 921, 85 S. Ct. 1528, 14 L. Ed. 2d 442.
Swain's application for writ of error coram nobis was denied by the Circuit Court of Talladega County, the trial court. This court affirmed. Swain v. State, 285 Ala. 292, 231 So. 2d 737 (1970).
Swain then applied to the United States Supreme Court for certiorari. Certiorari was granted.
On June 29, 1972, the United States Supreme Court, 408 U.S. 936, 92 S. Ct. 2860, 33 L. Ed. 2d 753, entered an order which vacated the judgment, insofar as it leaves undisturbed the death penalty imposed and remanded the case to this court for further proceedings. We received this order on July 26, 1972.
The question presented in this case is identical to that presented in Wade Hubbard v. State of Alabama [1973] 290 Ala. 118, 274 So. 2d 298, decided by the court this day, except that upon a conviction for *306 rape the punishment is death or imprisonment in the penitentiary for not less than 10 years. Title 14, § 395, Code of Alabama 1940.
The dissenting justices would have this court order a new trial for this defendant on the issue of punishment only. In effect, they contend that this solution is compelled because the United States Supreme Court mandated out the death sentence, and they reason the punishment to be imposed by a jury can vary from a minimum of ten years up to any number of years imprisonment in the penitentiary, and we cannot know what sentence a jury might impose.
No statutory nor common law power exists in Alabama authorizing such a bifurcated jury trial. Any attempt to construct such a system (as the dissent suggests), novel to our jurisprudence, would create problems well nigh insoluble either by this court or by the trial court to which we might remand the matter.
Is it not reasonable and logical to assume that if the jury (which tried this defendant and imposed the most extreme penalty of alldeath) had been instructed that the death penalty would be an impermissible punishment, then the jury would have imposed the next most severe penalty?
In Hubbard, we quoted from the case of Anderson v. State, Fla., 267 So.2d 8:
It is our judgment that all of these reasons and others compel the solution we reach, which is to correct the sentence to impose a life sentence in lieu of the death penalty.
This is the conclusion reached by the Louisiana Supreme Court in State v. Williams, 263 La. 284, 268 So. 2d 227; the Georgia Supreme Court in Sullivan v. State, [M.S.1972] Ga., 194 S.E.2d 410; and the North Carolina Supreme Court in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19.
We agree with the Louisiana Supreme Court, which held in State v. Williams, supra:
Thus, the sentence of death imposed upon the defendant, Robert Swain, is vacated and set aside. In lieu and instead thereof, the sentence is corrected to provide that the said Robert Swain be imprisoned *307 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 Talladega 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.
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.
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.
MERRILL, HARWOOD, MADDOX and JONES, JJ., concur.
HEFLIN, C. J., and COLEMAN, McCALL and FAULKNER, JJ., dissent.
HEFLIN, Chief Justice (dissenting):
The majority decision is based upon the supposition that the jury, had the death penalty not been available to them as an alternative punishment, would have sentenced the defendant to life imprisonment. With all deference, I do not believe the majority possesses such occult power. I, therefore, concur in the dissenting opinion authored by Justice Coleman, save one portion of his dissent which would allow the introduction of the transcript into evidence at the penalty trial.
I believe that our present law regarding the introduction of a transcript of a former trial should apply to the penalty trial just as it would in any other situation. Before the former testimony is admissible, proof must be made to the trial judge that the personal attendance of the witness at court is not procurable.
The following causes of non-production of the witness are sufficient: that the witness is dead; that the witness is permanently or indefinitely absent from Alabama; that the witness cannot be found after diligent search; that the witness is in the military service in time of war; that the opponent has caused the witness to be absent; that the witness is now insane; that the witness has become disqualified by facts occurring subsequent to the former trial, and the party now offering the former testimony is not responsible for such disqualification; or that the witness now avails himself of a privilege not to testify. 2 J. McElroy, Law of Evidence in Alabama, Section 245.07(8) (2d Ed. 1962).
The introduction of the transcript into evidence at the penalty trial should further be qualified according to the best evidence rules. See 2 J. McElroy, Law of Evidence in Alabama, Section 235.02 (2d Ed. 1962).
COLEMAN, Justice (dissenting):
Robert Swain was convicted for rape and sentenced to death pursuant to Title 14, § 395, which recites:
This court affirmed in 1963. 275 Ala. 508, 156 So. 2d 368.
The Supreme Court of the United States affirmed in 1965. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759.
Swain's subsequent application for writ of error coram nobis was denied by the trial court. This court affirmed in 1970. 285 Ala. 292, 231 So. 2d 737.
Swain applied to The Supreme Court of the United States for certiorari. That *308 court granted the petition, and on July 26, 1972, issued to us a mandate which in pertinent part recites:
See: Swain v. Alabama, 408 U.S. 936, 92 S. Ct. 2860, 33 L. Ed. 2d 753.
The opinion of The Supreme Court of the United States in Stewart v. Massachusetts, 408 U.S. 845, 92 S. Ct. 2845, 33 L. Ed. 2d 744, recites:
Thus The Supreme Court of the United States has vacated the judgment against Swain in so far as the death penalty is imposed but has left standing the judgment of guilt. The question now presented is what procedure does the law require in fixing the punishment to be imposed on Swain.
In Hubbard v. State, 290 Ala. 118, 274 So. 2d 298, defendant was convicted for murder in the first degree. The statute (Title 14 § 318) provides two alternatives in fixing the punishment for murder in the first degree, that is, death or imprisonment for life. When The Supreme Court of the United States struck down the death penalty, only one alternative remained, and that alternative is life imprisonment, which is clear and certain.
In the instant case, the statute also provides for two alternatives, one is death and the other is imprisonment in the penitentiary for not less than ten years. Punishment by death now being stricken by The Supreme Court of the United States, the only remaining alternative is imprisonment for not less than ten years, but the number of years to be fixed is not clear or certain by any method of reasoning of which I am advised.
As to Title 14, § 395, The Supreme Court of the United States, by its decision in Furman v. Georgia, supra, has held that part of the statute providing for punishment by death unconstitutional, and has in effect stricken from the statute the words "death or" so that the statute provides, in effect, that persons guilty of rape *309 "... shall, on conviction, be punished, at the discretion of the jury, by... imprisonment in the penitentiary for not less than ten years." After the effect of Furman v. Georgia, the statute still provides that punishment shall be fixed by the jury.
The Supreme Court of Virginia has dealt with the problem before us in a case where the prisoner had been convicted of murder in the first degree and given a death sentence under a statute quoted by the court as follows:
Among other things the court said:
On the same day in another case, the Virginia court delivered a consolidated opinion in two other cases in each of which the same defendant had been found guilty of murder in the first degree. In one case, the jury fixed defendant's punishment at 99 years in the penitentiary and in the other case at death. The court concluded that the death penalty had been rendered invalid by Furman v. Georgia, supra, and, among other things, said:
In Anderson v. State, (Fla.), 267 So. 2d 8, the Supreme Court of Florida dealt with the instant question as it affected a number of prisoners convicted for rape. In pertinent part the court said:
Subsequently, the Florida court dealt with other prisoners under a death sentence, some for murder and some for rape. As pertinent, the court said:
It is noted that the court proceeded to pronounce sentence of life imprisonment, apparently authorized under Florida rules of procedure, with the right of the prisoner to file a motion for mitigation of sentence.
In 1971, the Court of Criminal Appeals of Tennessee upheld the conviction of a defendant for murder in the first degree with punishment fixed at death. The court vacated the sentence of death because the requirements of Witherspoon v. Illinois, 291 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d *311 776, had not been complied with in selecting the jury. The court said:
In People v. Speck, (September 20, 1972), 52 Ill. 2d 284, 287 N.E.2d 699, the Supreme Court of Illinois, pursuant to Furman v. Georgia, supra, set aside the death penalties imposed on the defendant under eight separate indictments charging him with the murder of eight young women in the City of Chicago. The court remanded the cases to the trial court with directions to conduct a new hearing in aggravation and mitigation and resentence the defendant.
The question before us is an extraordinary one without precedent in this state. In Hubbard v. State, 290 Ala. 118, 274 So. 2d 298, this court followed the course of fixing defendant's punishment at life imprisonment, which was the only punishment provided by law after the Supreme Court had declared invalid the punishment of death. In the instant case, the only punishment which can now be imposed in Swain is imprisonment in the penitentiary, but the length of the sentence is not fixed by law but remains in the discretion of the jury.
With the provision for the death penalty stricken, the statute under which defendant's punishment is to be fixed, Title 14, § 395, expressly provides that any person guilty of rape ". . . shall, on conviction, be punished, at the discretion of the jury, by... imprisonment in the penitentiary for not less than ten years." If the statute is to be followed, defendant's punishment must be fixed by the jury at imprisonment for not less than ten years. For this court to say what term a jury will fix would be sheer speculation, as is observed by the Virginia Court. Hodges v. Commonwealth, supra.
In accordance with the statute, and the authorities from Virginia, Florida, Tennessee, and Illinois, I would remand the cause to the circuit court for a new trial on the issue of punishment. I am of opinion that such trial should be by jury. So much of the transcript of the testimony and proceedings in the first trial as may be necessary to show the nature of the offense charged and the circumstances under which it was committed should be permitted to be introduced in evidence, and such additional evidence as may be competent and relevant to the issue of punishment should be adduced.
Being of the opinion hereinabove expressed I must respectfully dissent.
McCALL and FAULKNER, JJ., concur. | March 8, 1973 |
11f313a4-4b85-4134-ab1f-dfa5c098b0e4 | Kelsoe v. State | 279 So. 2d 552 | N/A | Alabama | Alabama Supreme Court | 279 So. 2d 552 (1973)
In re Carson KELSOE
v.
STATE. Ex parte Carson Kelsoe.
SC 408.
Supreme Court of Alabama.
June 21, 1973.
Jerry L. Cruse, Montgomery, for petitioner.
No brief for the State.
MADDOX, Justice.
Petition of Carson Kelsoe for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Kelsoe v. State, 50 Ala.App. 378, 279 So. 2d 549.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | June 21, 1973 |
f3b51b82-81d7-45ac-89c6-0f31b939afbb | Kinmon v. JP King Auction Company, Inc. | 276 So. 2d 569 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 569 (1973)
George H. KINMON, Sr. and Mrs. George H. Kinmon, Sr.
v.
J. P. KING AUCTION COMPANY, INC., a corporation.
SC 181.
Supreme Court of Alabama.
April 19, 1973.
*570 Chason, Stone & Chason, Bay Minette, for appellants.
James R. Owen, Bay Minette, for appellee.
FAULKNER, Justice.
This case is the tale of "Bittersweet." Bittersweet is a home in Perdido Beach, Alabama, not far from the Gulf Coast of our fair State. On the property along Soldier Creek are a main house, a cabin, three mobile homes, a boathouse, a concrete fish pond, and other features and attractions spread among the pine trees.
On July 29, 1971, George H. Kinmon, the owner, signed a contract with J. P. King Auction Company (King) to sell the property "for the highest price obtainable." Kinmon testified to having "conveyed" to the representatives of King that he expected to realize $103,500 for the property. The latter told Kinmon that Bittersweet would bring what it was worth the day of the sale. The written contract did not incorporate any guaranteed minimum price, referring merely to "the highest price obtainable."
King prepared and distributed a brochure announcing the "absolute auction" of Bittersweet:
Kinmon, concerned about the possibility of not realizing an adequate price for his property, protested against the inclusion of the terms "Your Price is Our Price" and "absolute auction." However, preparations for the auction continued. Signs announcing the forthcoming auction and stating "Your Price is Our Price" remained undisturbed by Kinmon.
On August 21, 1971, the day of the auction, Kinmon was "upset." He told King's secretary that he wasn't signing anything. At one point during the bidding, Kinmon went up to King and stated that if Bittersweet did not bring $70,000, "I will take you to Supreme Court." King went ahead with the bidding and sold the property to the highest bidder for $35,000. Kinmon subsequently refused to convey the property or pay King's commission. King sued, and the Circuit Court of Baldwin County held that he was entitled to his commission. Kinmon appeals from this decree.
A citizen of Alabama is free to contract in any way he sees fit. There is no doubt Kinmon and King could have written a $50,000, $70,000, or $100,000 minimum price for Bittersweet into their auction sale contract. They did not do so. The contract recites that Bittersweet would be sold "for the highest price obtainable." Kinmon may have wished or hoped that the sale would realize $100,000. However, it is elementary that it is the terms of the written contract, not the mental operations of one of the parties, that control its interpretation. Todd v. Devaney, 265 Ala. 486, 92 So. 2d 24 (1957).
Contracting parties are free to modify their contract by mutual assent. Mogul Wagon Co. v. Shotts, 18 Ala.App. 528, 93 So. 219 (1922). After expressing discontent with the advertised slogan "Your Price is Our Price," Kinmon could have asked King to insert a minimum price *571 guarantee into the contract. He did not do so. Unilateral grumbling cannot modify a bilateral contract.
It is the general rule that the agency to sell at auction, whether such auction be "with reserve" or "absolute," may be withdrawn at any time prior to the opening of bids. Benjamin v. First Citizens Bank, 248 App.Div. 610, 287 N.Y.S. 947 (1936). This withdrawal of authority must be clear and unequivocal. Nowhere in the record is there evidence that Kinmon clearly and unequivocally stated that he no longer wished King to sell his property, that he was revoking King's authority, that he was withdrawing Bittersweet from sale. Being "upset" is not enough; threatening to take King to court if $70,000 were not realized is not enough.
Appellant contends, however, that the employees of King violated their trust as agents of Kinmon, and were guilty of acting in bad faith.
We have repeatedly stated that where the chancellor has heard testimony ore tenus, this Court will affirm unless the decree is clearly contrary to the great weight of the evidence. Reid v. United Security Life Insurance Co., 290 Ala. 253, 275 So. 2d 680 (1973); Thomas v. Moon, 289 Ala. 680, 270 So. 2d 811 (1972). We think that the court below could reasonably conclude that King acted in good faith. King may have thought that Kinmon was unduly optimistic in hoping to receive $103,500 for Bittersweet; on the other hand he testified to having recently sold for $50,000 a property he thought would not bring in more than $20,000. Far from profiting from the lower sale price realized, King suffered a loss of thousands of dollars because his commission was a percentage (15%), rather than a fixed amount.
We think that a finding of bad faith would require a showing of some element of dishonesty or self-dealing on the part of King. It appears that the trial court found neither in this case. At most, it could be concluded that King was eager to persuade Kinmon to go through with the deal. This being the situation, Kinmon, as a mature business man, had the option of terminating or seeking modification of the agreement, if it were unsatisfactory to him. He chose to do neither.
The decree of the Circuit Court of Baldwin County must be and is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | April 19, 1973 |
c945d081-e79c-438e-a03a-60ae1540f545 | Taylor v. Jones | 276 So. 2d 130 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 130 (1973)
Voncile G. TAYLOR and Albert J. Taylor
v.
Claude M. JONES.
SC 91.
Supreme Court of Alabama.
March 29, 1973.
Rehearing Denied April 26, 1973.
*131 Fred Blanton, Birmingham, for appellants.
Adams, Gillmore & Adams, Grove Hill, for appellee.
MADDOX, Justice.
This is the third time this cause has been here on appeal. See Taylor v. Jones, 280 Ala. 329, 194 So. 2d 80 (1967); Taylor v. Jones, 285 Ala. 353, 232 So. 2d 601 (1970).
In each case, the appellee, Claude M. Jones, has been seeking to collect or enforce the payment of notes Walter and Rebecca Fox executed to the Jackson Bank and Trust Company in 1958, and purchased by Jones from the bank in 1960.
The facts are set out in the prior opinions on appeal but are briefly restated. Walter Fox owned approximately 56 acres of land in Clarke County. Walter Fox and his wife, Rebecca, on February 17, 1958, signed a promissory note for $629 to the Jackson Bank and Trust Company and executed a mortgage on the land to the bank to secure the payment of the note. Walter Fox, on October 13, 1958, executed a warranty deed to his wife, Rebecca, purporting to convey to her an undivided one-half interest in the 56-acre tract. No reference was made to the bank mortgage.
Walter Fox died testate on June 9, 1960. Under his will, duly probated, he devised to his wife, "a home on my estate until her decease." The rest, residue and remainder of his estate was devised to the Taylors, appellants here.
On October 28, 1960, Rebecca Fox conveyed her undivided one-half interest to Jones by warranty deed, in which no reference was made to the bank mortgage. Three days later, Jones paid the bank $529.50, the balance due on the note. The bank gave Jones the note and mortgage, but did not execute a written assignment to him at that time. On June 27, 1961, an attorney in fact for the bank cancelled the Fox mortgage on the mortgage records in the Probate Office of Clarke County. Efforts were made by Jones in 1961 to get the Taylors to contribute their portion of the indebtedness. They refused. Jones then obtained a written assignment of the note and mortgage from the bank. He executed an instrument purporting to release his undivided one-half interest from the lien of the mortgage. He then started foreclosure proceedings but learned of the bank's cancellation of the mortgage. On September 5, 1963, Jones began the first suit, a bill in equity to annul the cancellation of the mortgage on the record. He got relief and this Court affirmed. Taylor v. Jones, 280 Ala. 329, 194 So. 2d 80 (1967).
The Taylors subsequently filed the second suit, a bill in equity for a declaration of their rights as cotenants with Jones regarding the extent of their obligation under *132 the mortgage given by Walter and Rebecca Fox through whom they claimed their interest. Jones filed a cross-bill asking the court to determine the amount of the indebtedness. This Court affirmed the judgment of the trial court which determined that Jones could satisfy the entire indebtedness secured by the mortgage out of the Taylors' undivided one-half interest. Taylor v. Jones, 285 Ala. 353, 232 So. 2d 601 (1970).
After affirmance, the Register of the Circuit Court of Clarke County set a date for conducting a hearing to determine the amount of the indebtedness. The hearing was held and the Register found that the sum of $888.68 was due as principal and interest on the note. He also found that the sum of $3,797.50 should be allowed the firm of Adams, Gillmore and Adams as a reasonable attorney's fee for the collection or enforcement of the note. The Taylors filed an exception to the report of the Register on the ground that attorney's fees allowed for professional services made for representing Jones in the two lawsuits above mentioned were not rendered "in connection with the foreclosure of the mortgage." The trial court, after hearing, accepted, approved and confirmed the report of the Register. From this order, the Taylors took this appeal.
The sole question presented is whether the attorney's fees rendered by the firm of Adams, Gillmore and Adams constituted a part of the indebtedness secured by the mortgage.
The promissory notes executed by Walter and Rebecca Fox contained provisions that they "... [E]ach severally agree to pay all costs of collecting or securing, or attempting to collect or secure this note, including a reasonable attorney's fee whether the same be collected or secured by suit or otherwise. ..." The mortgage in question provides in part:
Appellants argue that the attorney's fees awarded here were improper because (1) the obligation to pay an attorney's fee which was included in the note was a personal obligation of Walter and Rebecca Fox and not an obligation of the appellants; (2) Jones filed no claim against the estate of Walter Fox seeking a collection of his debt; (3) the stipulation in the mortgage for payment of a reasonable attorney's fee applied only to a foreclosure sale and did not include a foreclosure in equity.
In other words, appellants contend that Jones did not attempt to collect his debt against Walter Fox or his estate and the only attorney's fee to which he is entitled under the provisions of the mortgage are those attorney's fees incurred in foreclosing the mortgage under the power of sale contained therein. We disagree.
The evidence is uncontradicted that the note was in default and that Jones turned over the mortgage to his attorneys, who started foreclosure proceedings. After these proceedings were commenced, the inadvertent cancellation of the mortgage was discovered. The records of the litigation between these parties show that Jones attempted to get the Taylors to contribute their portion of the indebtedness. They refused. When Jones discovered that the mortgage had been cancelled on the record, *133 he filed the first suit to have the cancellation annulled. The Taylors filed a cross-bill in that suit asking the court to find that there was no "indebtedness" and that Jones, the bank and the bank's attorney conspired to deprive the Taylors of their title to the subject property.
The second suit was filed by the Taylors. Jones filed a cross-bill asking that he be allowed to foreclose. He asked the court to determine the amount owed. He prevailed in the trial court and this Court affirmed.
After this Court affirmed, the cause was referred to the Register, as ordered by the Court initially in the judgment from which the appeal was taken. The Register held a hearing, made findings, which were accepted and approved by the trial court.
The notes in question contain provisions "to pay all costs of collecting or securing, or attempting to collect or secure, this note, including a reasonable attorney's fee, whether the same be collected or secured by suit or otherwise. ..." [Emphasis supplied.] The claim for an attorney's fee is as much a part of the contract as any other feature of it. White v. Blair, 234 Ala. 119, 173 So. 493 (1937). Such fees, under the contract, become an effective part of the main debt.
It was stipulated that the note was in default, that the note and mortgage had been turned over to Jones' attorney and that foreclosure proceedings had been started in accordance with the terms of the mortgage. If the Taylors had paid the amount due under the note,[1] there would have been no attorney's fees, because the matter had not then been placed in the hands of an attorney for collection. The record now before us indicates that the first services performed by an attorney were on July 2, 1963. Jones had a right, under the provisions of the mortgage, to foreclose the mortgage and collect the debt. He had begun proceedings to foreclose, and now three proceedings later, he is still seeking to exercise his right to foreclose the mortgage and collect his "indebtedness," which, under the terms of the note, now includes attorney's fees in addition to the principal and interest. Cf. Carwile v. Crump, 165 Ala. 206, 51 So. 744 (1910), where the note and mortgage provided for reasonable attorney's fees in case the note was collected by an attorney and the note was placed in the hands of an attorney, and this Court held that any tender should have included not only principal and interest, but reasonable attorney's fees incurred between the time the matter was placed with an attorney and the time an agreement was reached relative to the amount due.
Appellants contend that the mortgage provided for an attorney's fee only in connection with a foreclosure sale and any fees incurred for bringing lawsuits or defending lawsuits are not included. This court has said that where the mortgage provisions for foreclosure under a power of sale provide for attorney's fees in connection with the foreclosure sale, an attorney's fee for foreclosure in equity is not recoverable. Hylton v. Cathey, 225 Ala. 605, 144 So. 579 (1932). But here Jones was not seeking foreclosure in equity. In his initial suit and in his cross-bill, in the second suit, he asked to be allowed to foreclose. Jones had turned over the matter to an attorney and foreclosure proceedings under the power in the mortgage were begun. The process was interrupted by the lawsuits, which we find Jones had a right to bring in the first instance and to defend against in the second instance. The evidence is clear that at the inception, when the matter was turned over to an attorney the indebtedness could have been liquidated by paying principal, interest and a nominal attorney's fee. The Taylors did not elect to allow collection at that time and consequently Jones was caused to incur substantial attorney's fees.
*134 We agree with appellants that the attorney's fees for prosecuting the first suit and defending against the second cannot be recovered under the provisions of the mortgage which allows Jones to apply the proceeds of the sale to the payment of costs and expenses incident to the sale, including a reasonable attorney's fee. Hylton v. Cathey, supra.
As we read Hylton v. Cathey, supra, the cross-complainant there did not declare her right to the provisions of the note secured by the mortgage. This Court held:
Inferentially, we think Hylton v. Cathey held that had the cross-complainant claimed her right to the provisions in the note that recovery of reasonable attorney's fees would have been permitted in that case.
We have examined the evidence submitted to prove the reasonableness of the fees and find that the trial court did not err in accepting and approving the report of the Register in this regard.
In accepting and approving the Register's report finding an attorney's fee of $3,797.50 was reasonable, the trial court had the right to call to its aid its own estimate of the value of the services, and this Court, in reviewing the amount fixed, will be guided by its own judgment upon a consideration of the entire record. Atkinson v. Kirby, 270 Ala. 178, 117 So. 2d 392 (1960); Hampton v. Gulf Federal Savings & Loan Ass'n, 287 Ala. 172, 249 So. 2d 829 (1971).
Even though the fee greatly exceeds the amount of principal and interest on the original obligations, the fee is not so excessive as to pronounce error in the allowance accepted by the trial court. There were two trials in the lower court. The attorneys successfully defended two prior appeals to this Court. The amount awarded was supported by testimony of a competent member of the bar of this state. We do not find it unreasonable. Hanson v. Citizens Bank of Oneonta, 270 Ala. 405, 118 So. 2d 732 (1960).
The judgment is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.
[1] Apparently, in 1961 Jones offered to let the Taylors contribute one-half of the indebtedness, but they refused. Taylor v. Jones, 280 Ala. 329, 194 So. 2d 80 (1967). | March 29, 1973 |
a93d47dc-d30c-43d0-ab3c-0ba8d904c01d | Davis v. State | 274 So. 2d 363 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 363 (1973)
In re Joseph DAVIS, alias
v.
STATE.
Ex parte Joseph Davis, alias.
SC 251.
Supreme Court of Alabama.
March 8, 1973.
Van Gamble and Richard L. Taylor, Birmingham, for petitioner.
MADDOX, Justice.
Petition of Joseph Davis, Alias, for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Davis, alias v. State, 49 Ala.App. 587, 274 So. 2d 360.
Writ denied.
MERRILL, COLEMAN, HARWOOD, BLOODWORTH, McCALL and FAULKNER, JJ., concur.
HEFLIN, C. J., and JONES, J., dissent.
HEFLIN, Chief Justice (dissenting):
I would grant the writ in this case.
The defense counsel's argument before the jury contained the following statement, which was objected to by the prosecuting attorney and excluded from the jury's consideration by the trial court:
This ruling was affirmed by the Court of Criminal Appeals and has been presented to this court by way of a petition for writ of certiorari. I feel the defense attorney was within the bounds of legitimate argument *364 in commenting on the absence of evidence pertaining to fingerprints.
The duty of counsel is to establish the truth and aid the jury in determining the true facts of the case, and closing argument is an aid to the jury to enable that body to arrive at correct conclusions. To this end the very fullest freedom of speech should be accorded to counsel in making his closing remarks. Cross v. State, 68 Ala. 476 (1881); Bryson v. State, 264 Ala. Ill, 84 So. 2d 785 (1956); Shadle v. State, 280 Ala. 379, 194 So. 2d 538 (1967); Argo v. State, 282 Ala. 509, 213 So. 2d 244 (1968); Embrey v. State, 283 Ala. 110, 214 So. 2d 567 (1968).
Closing argument has traditionally been, and remains today, one of the bulwarks of our legal system, without which counsel would be denied the right to present his client's case to the jury in the light most favorable to him. No other aspect of trial procedure affords the parties this unique opportunity, and in no other single phase of the trial may the attorneys' experience, judgment, skill and persuasiveness be employed to any greater extent.
Closing argument is the culmination of the trial and the attorney's final opportunity to present to the jury his client's cause. The attorney does his client a disservice if he fails to employ every legitimate means available to him in the cause of his client. The adversary nature of our judicial system, as well as justice and complete service to the client, demand that counsel be given the fullest possible latitude in closing argument, and that he not be inhibited by the trial court until and unless it is made clear and manifest to that court that counsel's argument has transversed the outer edge of the area which encircles legitimate argument, separating it from impermissible prejudicial comment. The high regard which has been given closing argument is manifest in Jackson v. State, 239 Ala. 38, 193 So. 417 (1940), wherein this court robed final summation with the cloak of constitutional protection. In Jackson it was stated that an abuse of discretion by the trial court within the realm of closing argument violates Article I, Section 6, of the Alabama Constitution, which guarantees the accused the right to be heard. See also 6 A.L.R.3d 604.
A number of Alabama cases have allowed counsel in closing argument to comment on the lack or absence of certain evidence or testimony. In Welch v. State, 278 Ala. 177, 176 So. 2d 872 (1965), the solicitor's comment that there was no evidence that defendant was a citizen of the county in which he was tried was held to be permissible. On one occasion this court, as then constituted, even hurdled the barrier that the State may not comment on the failure of the defendant to testify, when it allowed the prosecuting attorney in closing argument in Beecher v. State, 280 Ala. 283, 193 So. 2d 505, rev. 389 U.S. 35, 88 S. Ct. 189, 19 L. Ed. 2d 35 (1966), to comment on a void in the evidence by asking the question, has anyone taken the stand saying that defendant had not killed the victim.
Again, in Welch v. State, 263 Ala. 57, 81 So. 2d 901 (1955), the prosecutor was allowed to state that the defense had not offered any evidence. This is certainly a comment on the absence of evidence.
In the case under review the defense attorney's comments about the void in evidence concerning fingerprints is not anywhere as close to prejudice as were the comments allowed the prosecuting attorneys in the Alabama cases mentioned above. See also 68 A.L.R. 1139-1146.
There is another reason why the comments by the defense attorney in the case under review should have been allowed. This involved the burden of proof in a criminal case. The burden of proof is on the State to prove the accused guilty beyond all reasonable doubt. Such doubt may be generated from a lack of evidence as well as from the evidence. Stafford v. State, 33 Ala.App. 163, 31 So. 2d 146 *365 (1947); Earnest v. State, 40 Ala.App. 344, 113 So. 2d 517 (1959).
In Carwile v. State, 148 Ala. 576, 39 So. 220 (1905), this court approved the following charge:
The word "absence" in this charge has an obvious, natural tendency to focus the jury's attention on, and invites the jury to entertain the thought of, any possible lack of or void in the evidence adduced by the State, as well as the want of persuasiveness of the evidence introduced by the State.
With this principle in mind the defendant is entitled to argue any and all voids in the evidence in an effort to sufficiently satisfy the jury that a reasonable doubt exists.
The wide-latitude-of-argument rule is inexorably linked to the basic right of counsel. In our adversary system, the discretion of the trial court to control the conduct of the trial must not be exercised so as to unduly circumscribe the legitimate role of counsel. R. C. Bottling Co. v. Sorrells, 290 Ala. 187, 275 So. 2d 131 (decided March 8, 1973). However weak, or improbable of jury appeal, or vulnerable to reply or answer in kind this comment may have been, it was one of the weapons in the arsenal of defense of the defense counsel, and the wisdom of its use is not the test of its propriety. When fundamental rules are applied to the case at hand, I would hold that the trial court abused its discretion in sustaining the objection to counsel's argument.
The winds of erosion continue to threaten our adversary system. I would endeavor to calm these winds, rather than increase their velocity.
JONES, J., joins in the foregoing dissent. | March 8, 1973 |
0c5113cd-09b1-4d4c-8395-dc0715bb1629 | WB Davis Hosiery Mill, Inc. v. Word Lumber Co., Inc. | 273 So. 2d 474 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 474 (1973)
In re W. B. DAVIS HOSIERY MILL, INC.
v.
WORD LUMBER CO., INC.
Ex parte W. B. Davis Hosiery Mill, Inc.
SC 232.
Supreme Court of Alabama.
February 22, 1973.
W. M Beck, Sr., Fort Payne, for petitioner.
FAULKNER, Justice.
Petition of W. B. Davis Hosiery Mill, Inc. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in W. B. Davis Hosiery Mill, Inc. v. Word Lumber Co., Inc., 49 Ala.App. 492, 273 So. 2d 469.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | February 22, 1973 |
ff39e7b6-a63a-47fc-a332-816839056161 | Boswell v. State | 276 So. 2d 592 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 592 (1973)
Thomas Anderson BOSWELL
v.
STATE of Alabama.
SC 272.
Supreme Court of Alabama.
March 29, 1973.
Rehearing Denied May 10, 1973.
*594 David L. Barnett, Mobile, for appellant.
William J. Baxley, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Thomas A. Boswell appeals from a judgment of conviction for selling marijuana, in violation of Title 22, § 258(47), Code of Alabama 1940, Recompiled 1958, and sentence of six years in the penitentiary imposed thereon.
The testimony at trial tended to show that Jerry Owensby, an undercover criminal investigator with the U. S. Customs Department, had been working to combat the sale of unlawful drugs in the area of Mobile, Alabama. He testified to having informed the defendant that he wished to buy a pound of marijuana. The defendant, an acquaintance, told Owensby to meet him in twenty minutes. When they met, a conversation ensued:
"Q. What was the essence of that conversation?
Later, the parties met again in the Flaming Hearth Lounge to consummate the deal:
"Q. Did you have a conversation with him at that time?
Witness Whatley, hiding in nearby weeds, testified to having observed the defendant placing the marijuana in the back of Owensby's camper.
The defendant himself admitted on the stand to having sold the marijuana to Owensby, but claimed to have turned all of the money over to his supplier, except for $35.00 which he kept as a "commission." Defendant stated in open court:
"I never denied that the transaction was made."
Despite the absence of factual dispute as to the unlawful sale, defendant appealed to the Alabama Court of Criminal Appeals, urging that procedural errors below entitled him to a reversal. On February 28, 1973, the cause was transferred to this court by authority of Title 13, § 111(11a) of our Code.
Appellant's counsel, in his brief, assigns two grounds of error: (1) that the statute defendant was convicted of violating is unconstitutional because it contains more than one subject; and (2) that the statute arbitrarily and unconstitutionally classifies marijuana with "hard" narcotic drugs. Appellant himself, in a 57-page pro se brief, assigns, insofar as we can interpret his turgid and lachrymose prose, at least 21 additional grounds: (3) that he was improperly extradited from Federal prison in Texas to stand trial in Alabama; (4) that he lacked counsel to fight his extradition; (5) that the indictment was vague, and failed to advise him of the nature and cause of the accusation against him; (6) that the indictment was fatally defective in that it lacked the date on which the alleged offense took place; (7) that the indictment was fatally defective in that it omitted the place at which the alleged offense took place; (8) that he never received a copy of the indictment; (9) that he was placed in double jeopardy, because charges at a preliminary hearing were dropped when the judge was advised that the grand jury was indicting defendant for the same offense; (10) that the jury panel composition was improper, lacking young adults; (11) that he was prejudiced by being taken in front of the jury panel handcuffed, chained, barefoot, dirty, unshaven, and disheveled; (12) that the court failed to rule on a motion for his mental examination; (13) that he was given insufficient time to prepare his case; (14) that the performance of his first counsel, Mr. Haas, was so incompetent as to entitle him to reversal; (15) that the performance of his trial counsel, Mr. Alonzo, was so incompetent as to entitle him to reversal; (16) that his appellate counsel, Mr. Barnett, did not communicate with him, and was so incompetent as to deny him due process of law and entitle him to a reversal; (17) that his prosecution was due to a vendetta against him by the district attorney; (18) that certain Negro jurors were Black Muslims, and were railroading him to jail just to punish a "blue-eyed devil" in accordance with the tenets of their faith; (19) that reversible error was made to appear in that two jurors slept soundly throughout the trial; (20) that the whole jury was prejudiced against him; (21) that he was entrapped into committing the offense; (22) that he was denied a transcript to prepare an appeal; and (23) that his transfer back into the Federal penetentiary in Texas after his Alabama trial served to void his state sentence as a matter of law.
The pro se brief sums up:
Appellant's initial argument is that the Alabama Uniform Controlled Substances Act, Title 22, § 258(25) et seq. of our Code, under which he was convicted, is *596 unconstitutional. The Act is divided into five parts: Definitions; Standards and Schedules; Regulation of Manufacture, Distribution and Dispensing of Controlled Substances; Offenses and Penalties; and Enforcement and Administrative Provisions. See "The Uniform Alabama Controlled Substances Act: An Appraisal," 24 Ala.L.Rev. 491 (1972). Appellant contends that covering so many subjects in one statute is violative of the "single subject" clause of our Alabama Constitution, Article 4, § 45:
He invokes the case of State v. Welkner, 259 La. 815, 253 So. 2d 192 (1971), in which the Louisiana Supreme Court quashed a prosecution for possession of pills under a Narcotics Drug Law provision regulating hard drugs and marijuana. In that case the Louisiana Legislature had amended the body of a law without changing the title to reflect the new contents. This precedent is clearly inapplicable to the Alabama law, which regulates "controlled substances," a term broadly inclusive of all drugs listed therein.
The purposes of this constitutional provision that every law contain but one subject, clearly expressed in its title, have been much commented upon in our case law. They are generally stated to be notification to the public of the nature of pending legislation, avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title thereof, and prevention of hodgepodge, conglomerate, or "logrolling" legislation. State ex rel. Bozeman v. Hester, 260 Ala. 566, 72 So. 2d 61 (1954); State ex rel. Bassett v. Nelson, 210 Ala. 663, 98 So. 715 (1923).
Many years ago, in Ballentyne v. Wickersham, 75 Ala. 533 (1883), we stated the test for determining whether a law violates this constitutional provision:
Quoting the Kansas Supreme Court with approval, we continued:
It is clear that the component subjects, marijuana possession, heroin possession, marijuana sale, heroin sale, etc., do combine into the "grand and comprehensive" subject of regulation of controlled substances, and that the title of the Act does include all the component parts.
All the limbs of this tree belong to the tree. No alien branch is hidden in the foliage. We hold that the Alabama Uniform Controlled Substances Act satisfies the constitutional requirement of having a single subject clearly expressed in its title.
Appellant next contends that the classification of marijuana with so-called "hard" drugs is unconstitutional. He cites People v. Lorentzen, 387 Mich. 167, 194 *597 N.W.2d 827 (1972), where a 20-year prison term for selling marijuana was held excessive. We are unable to ascertain the relevance of that case to the 6-year sentence imposed here, or in what manner it supports the argument based upon classification of differing drug offenses. Appellant also cites People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407 (1971), where classification of marijuana with hard drugs, rather than with stimulants and depressants, was held unconstitutional. The reasoning of McCabe was rejected in State v. Wadsworth, 109 Ariz. 59, 505 P.2d 230 (1973).
Four principles have been laid down by the United States Supreme Court in Lindsley v. Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369, 377 (1911), to determine whether a statutory classification is proper:
Appellant has fallen far short of carrying the burden of showing that the classifications made by § 258(25) et seq. are invalid. Unlike the statutes in McCabe, supra, and Wadsworth, supra, which involved different scales of penalties, our statute imposes a single range of punishment for selling different controlled substances. (Code, § 258(47)). We hold that the Legislature properly could punish sale of marijuana equally with sale of other controlled substances, and that the Uniform Controlled Substances Act is not subject to attack on the grounds of arbitrary classification.
Next, appellant contends that he was denied counsel to fight his extradition from Federal prison in Texas to Mobile, Alabama, and that the extradition itself was unlawful. There is nothing in the record that would allow us to pass on either of these claims, hence they are not properly presented for review. Edwards v. State, 287 Ala. 588, 253 So. 2d 513 (1971); Walker v. State, 223 Ala. 294, 135 So. 438 (1931).
Appellant argues that the indictment was vague, and was fatally defective in that it omitted the place at which the alleged offense was committed. Unfortunately for this contention, Title 15, § 238 of our Code provides:
Appellant further argues that the indictment was fatally defective in failing to give the date of the alleged offense. Our Code, Title 15, § 237, states:
Boswell's indictment stated:
Thus, the statutory requirement was satisfied, and appellant's contention is without merit.
*598 Appellant urges that he did not receive a copy of the indictment and thus had no notice of the charges against him, in violation of Article 1, § 6, Alabama Constitution. Again, there is nothing in the record on this question. We do note, however, that he waived the reading of the indictment during his arraignment on September 25, 1972. By pleading not guilty, he waived any argument that he had not been furnished with a copy of the indictment. See Howard v. State, 146 Ala. 149, 41 So. 301 (1906).
Appellant contends that he was placed in double jeopardy by the dropping of charges at a preliminary hearing and subsequent indictment by the grand jury. In this state, jeopardy begins when the jury has been impaneled and sworn, and the indictment read. Scott v. State, 110 Ala. 48, 20 So. 468 (1896). Thus the defendant was not placed in double jeopardy.
Appellant argues that the jury panel composition was improper, because its members were on the whole much older than the average citizen of Mobile County. There is not one word in the record as to this issue; hence we cannot review it. Edwards v. State, supra; Walker v. State, supra.
Appellant complains of having been brought to court on one occasion prior to trial handcuffed, chained, barefoot, dirty, unshaven and disheveled. The record is incomplete on this issue; however, we cannot assume other than that was the way the defendant had dressed and groomed himself, and that he was brought to court "as is." No error appears on this point.
Appellant complains that the trial judge failed to rule on a motion that he be given a mental examination. Both the record and appellant's own brief state that the motion was ruled on and denied.
Appellant next complains that he was given insufficient time to prepare his case. His second counsel was appointed on September 15. On September 26, this counsel complained to the court that he had been unable to prepare:
The judge then set the trial for the next day, and denied a motion for a longer continuance. The two main grounds for the motion were the unavailability of a witness and a request to examine the alleged contraband. The record shows that by the beginning of proceedings next morning the witness was available and the alleged contraband had been examined by a defense expert. We hold that the trial judge's ruling was within the limits of his discretion. Any problems defendant had in preparation were caused by his refusal to cooperate with his counsel.
Appellant contends that each of the three attorneys he had at various stages of the case was so incompetent that his constitutional right to the assistance of counsel was effectively denied.
Every litigant is not necessarily entitled to counsel with the skill and silver-tongued eloquence of Daniel Webster, Clarence Darrow, or Rufus Choate. Any attorney who has been admitted to practice in this state is presumed capable of providing effective and successful representation. If, through carelessness or indolence he does not do so, relief is available, but only where his conduct reduces the trial to a farce, sham or mockery of justice. Gore v. State, 45 Ala.App. 146, 227 So. 2d 432 (1969), cert. denied 284 Ala. 729, 227 So. 2d 435 (1969), cert. denied 397 U.S. 966, 90 S. Ct. 1002, 25 L. Ed. 2d 258 (1970).
It would be superfluous to review in detail the actions of the three attorneys *599 whose competence is challenged here. Suffice it to say there is no showing whatever that they did not do their jobs well. Every evidence is that their client was a difficult man to deal with, resulting in frequent breakdowns in attorney-client communication. The fact that the client was ultimately convicted is no reflection on their performance. Aldridge v. State, 278 Ala. 470, 179 So. 2d 51 (1965).
Appellant asserts that his prosecution was due to a vendetta against him by the District Attorney. There is nothing in the record regarding this allegation, hence nothing is presented for our review. Edwards v. State, supra; Walker v. State, supra.
Appellant contends that certain Negro jurors were Black Muslims, and were prejudiced against him as a "blue-eyed devil" in accordance with the tenets of their faith. Nothing appears of record to indicate the religious affiliation of the jurors, hence nothing is presented for our review. Edwards v. State, supra; Walker v. State, supra.
Appellant complains of sleeping jurors. There was no objection made to this at the time, if the jurors were in fact sleeping, and the record is silent. Nothing is presented for review on this point. The same is true of the contention that the jurors in general were biased against him.
Appellant complains that he was entrapped into committing the crime.
In Johnson v. State, 36 Ala.App. 634, 636, 61 So. 2d 867, 869 (1952), our Court of Appeals stated:
There is no doubt that the course of conduct leading to the criminal activity began with the request by Owensby, the customs agent, to buy marijuana. The defendant sold the marijuana in response to this request. However, the agent's conduct, merely affording defendant the opportunity to commit a criminal act, falls short of what is necessary to constitute entrapment. Johnson v. State, supra. See also Brewer v. State, 23 Ala.App. 100, 123 So. 86 (1929), in which officers induced defendant to sell them liquor, then prosecuted him for violating prohibition laws. No entrapment was found.
In this case the entrapment issue was submitted to the jury with unusually full and fair instructions from the trial judge. The jury found no entrapment. We hold they could properly so find.
Appellant complains of failing to receive a transcript to use in preparing his appeal. The problem appears to have arisen between appellant, jailed in Texas, and his counsel in Mobile, Alabama as to who would use the single transcript available. Appellant ultimately did receive the transcript in Texas, and used it to prepare his 57-page pro se brief. No error appears on this point.
Finally, appellant contends that his transfer back to Federal custody following his Alabama trial served to void his state sentence as a matter of law. We are unaware of any authority in support of this position.
As mandated by Title 15, § 389 of our Code, we have searched the record for possible error. None appearing, the judgment and sentence must be and are affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur.
*600 HEFLIN, Chief Justice (concurring):
If "sufficient doubt" of the mental capacity of the defendant to stand trial had been shown then I would have been of the opinion that a hearing should have been held separate from the trial to determine the defendant's mental capacity to stand trial. See Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815. See also my dissenting opinion in Seibold v. State, 287 Ala. 549, 253 So. 2d 302.
While the defendant did interpose a plea of not guilty by reason of insanity, he withdrew such plea before it went to the jury. A review of the record in this case indicates that there was not manifested during the trial "sufficient doubt" pertaining to the mental competency of the defendant to stand trial so as to justify a hearing on that issue.
I, therefore, concur in the opinion. | March 29, 1973 |
d98ba36a-0994-4a77-ae39-92a812c21009 | Lowery v. Stinson | 282 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 282 So. 2d 244 (1973)
Elna S. LOWERY
v.
Louise STINSON, as Executrix of the Estate of Willie Elijah Stinson, Deceased.
SC 415.
Supreme Court of Alabama.
August 30, 1973.
*245 Izas Bahakel, Birmingham, for appellant.
Frank Ellis, Jr., Columbiana, for appellee.
BLOODWORTH, Justice.
This is an appeal from the denial of a claim against the Estate of Willie Elijah Stinson. The claim was filed by the deceased's sister, appellant Elna S. Lowery, for money allegedly loaned by her to the decedent during his lifetime. The widow, Louise Stinson, as executrix of the estate and appellee herein, filed a contest of the claim in Circuit Court of Shelby County, Alabama, in Equity. The court denied the claim. Claimant appeals. We affirm.
Briefly, the facts are as follows. Claimant, Elna S. Lowery, is the sister of the decedent, Dr. Willie Elijah Stinson, who died on July 1, 1971. Claimant presented testimony to the effect that on January 5, and January 11, 1971, Dr. Stinson came to the house of Mrs. Lowery and received a personal check from claimant on each date in the amounts of $6,505.23 and $2,047.70, respectively. According to the testimony of claimant, these checks represented loans to Dr. Stinson which were to be repaid with interest and which were requested by the decedent in these exact amounts. Claimant further testified that the decedent, Dr. Stinson, came to her house some four to six weeks later, after the checks were endorsed and negotiated, and had claimant write on the two checks that they were loans to be paid back at 6% interest. This notation was neither initialed nor signed by Dr. Stinson, but was allegedly witnessed by a Mrs. Fletcher, who had *246 lived off and on with claimant for twenty-five years, who testified to the same.
Contestant on the other hand presented evidence that the two checks given by claimant to the decedent represented a division of assets of two estates in which decedent and claimant were interested and were not loans. The trial court apparently chose to believe this latter explanation of the two checks.
Claimant asserts ten assignments of error on this appeal, but assignments of error (1), (6), (7) and (9) are waived for failure to substantially argue such assignments in brief. Rule 9, Revised Rules of Practice in the Supreme Court, Code of Alabama 1940 (Recompiled 1958), Title 7, Appendix; Stevens v. Thompson, 279 Ala. 232, 184 So. 2d 140 (1966); Thornton v. Tutt, 283 Ala. 72, 214 So. 2d 425 (1968).
Assignments of error numbers (2), (3) and (4) assert error in overruling claimant's objection to the introduction of certain bank records. The thrust of this argument is that such records fail to qualify for the "Business Records" exception to the hearsay rule, in that there was no testimony by contestant's witness Mr. Latham, of the Iron and Steel Workers' Credit Union, that he was personally familiar with the method or "standard operating procedure" used in making the subject records.
Claimant's argument is not well taken. Mr. Latham testified that the credit union kept daily records of deposits, withdrawals, and opening and closing of accounts with the credit union, that such accounts were kept in Mr. Latham's custody and control and under his supervision, that such records were made at the time of the transaction, and that such records were kept and maintained in the ordinary course of business. Such testimony clearly meets the requirements of Section 415 of Title 7, Code of Alabama 1940 (Recompiled 1958):
The cases cited by claimant in no way support any additional requirement that the witness testify that he have personal knowledge of the "standard operating procedure" used in compiling such records. Therefore, the lower court's overruling claimant's objection to such records was correct.
Claimant has proceeded in her brief to challenge contestant's introduction of certain records of the First National Bank through a Mr. Lee, but since this is not assigned as error, it is not before this court.
Assignment of error (5) claims error in overruling claimant's objection, and allowing contestant Louise Stinson to testify, to an alleged conversation between the deceased and the claimant in violation of the "Dead Man's Statute," Title 7, § 433, Code of Alabama 1940 (Recompiled 1958).
Section 433 provides in relevant part that no interested party shall be allowed to testify, "as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding * * *."
The record in question indicates it is contestant's testimony as to statements made by claimant in a conversation with *247 the decedent in the presence of contestant, which is attempted to be shown. The record shows that the court carefully limited contestant's testimony to statements made by claimant in the subject conversation. (No statement by the decedent was offered.)
It is unnecessary for this court to decide, however, whether this limitation avoids application of the "Dead Man's Statute" because it appears that the instant case falls within an exception to the "Dead Man's Statute."
In Homewood Dairy Products Co., Inc. v. Robinson, 254 Ala. 197, 48 So. 2d 28 (1950), in a suit on a claim growing out of a contract for the sale of milk, plaintiff was permitted to testify as to conversations with the defendant, deceased at the time of the trial, because the conversations were witnessed by a person associated with the deceased, namely his partner in business. There this court held:
The case at bar should be governed by the same rationale. Contestant was the decedent's wife; she went with the decedent to claimant's house on the occasion in question allegedly to receive the decedent's share of "Papa's account"; she was present when the conversation took place and heard the statements of claimant. Contestant was not a disinterested bystander. Her interests were clearly aligned with those of her husband's in this transaction. Thus, the rationale of Homewood Dairy Products v. Robinson, supra, is satisfiedthe witness was sufficiently associated with the decedent and had a sufficient community of interest with him that we may safely rely upon her to give the decedent's version of the transaction so that the reason for the exclusion does not exist. Therefore, the court's overruling of claimant's objection to contestant's testimony was not erroneous.
Assignment of error (8) claims error in the trial court's sustaining contestant's objection to the following question asked claimant on direct examination:
This question is clearly leading, and objection to it was properly sustained. The objection was explicitly directed to the form of the question, and the court specifically *248 admonished counsel not to lead his witness in sustaining the objection. Counsel for claimant chose not to rephrase the question. The court was not in error.
In the final assignment of error, claimant complains that the court erred in finding against her and against the great preponderance and weight of the evidence.
A trial court's finding in an equity case upon oral testimony has the effect of a jury's verdict and will not be disturbed unless plainly and palpably wrong. Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Appeal and Error, § 1009(1), Alabama Digest, Vol. 2A.
In the case at bar, there is ample evidence to support the findings of the trial court. There was uncontested evidence that the notations on the checks, indicating that they represented loans, were written by claimant after both checks had been endorsed and negotiated. Contestant presented evidence to the effect that the checks represented a division of two estates in which claimant and the decedent were interested. There was further testimony that there were two deposits to claimant's checking account shortly before these two checks were paid to the decedent; that one check paid to decedent was exactly one-half of one of the recent deposits plus $5,000.00; that claimant had told her nephew on several occasions that she had paid decedent and his wife, the contestant, $5,000.00 for half interest in a parcel of land which had belonged to their father; that the other one of the two deposits was exactly twice the amount of the second check drawn to decedent and which purportedly represented assets of an estate in which they were both interested. Finally, there was testimony by claimant's nephew that claimant had offered him $1,000.00 from her recovery against the estate in this suit if he testified that the checks represented loans. The evidence is ample to support the trial court's final decree denying the claim against the estate.
Let the trial court's decree be affirmed.
Affirmed.
All the Justices concur except COLEMAN, J., not sitting. | August 30, 1973 |
5b385a1a-6b62-474b-86a4-2eef69806a58 | United States F. & G. Co. v. Birmingham Oxygen Serv., Inc. | 274 So. 2d 615 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 615 (1973)
UNITED STATES FIDELITY & GUARANTY CO., a corp.
v.
BIRMINGHAM OXYGEN SERVICE, INC., a corp.
SC 131.
Supreme Court of Alabama.
March 15, 1973.
*616 Spain, Gillon, Riley, Tate & Ansley, and Ollie L. Blan, Jr., Birmingham, for appellant.
James M. Fullan, Jr., Birmingham, for appellee.
HARWOOD, Justice.
Birmingham Oxygen Service, Inc., brought a declaratory action in the Circuit Court of Jefferson County, Alabama, in Equity, against the United States Fidelity & Guaranty Company, a Corporation, hereinafter referred to as U. S. F. and G. and Cynthia J. Aldridge, as Administratrix of the estate of Clarence Aldridge, deceased. The purpose of the proceedings was to have a declaration that U. S. F. and G. was obligated to defend a suit brought by Cynthia J. Aldridge, as Administratrix, etc., against the Oxygen Service and to pay any damages that might be awarded in the Aldridge suit.
After a hearing, the Chancellor entered a decree that U. S. F. and G. was bound and obligated under the terms of its policy to defend the suit at law brought by Cynthia Aldridge as Administratrix, etc., against Birmingham Oxygen Service, and to pay within the limits of the policy any judgment rendered in said suit at law. From this decree, U. S. F. and G. has perfected this appeal.
*617 Clarence Aldridge, beset with emphysema, began utilizing the services of Birmingham Oxygen on 27 March 1967, when he rented from said Service an intermittent positive pressure breathing device or machine and purchased from the Service a supply of oxygen. The oxygen was contained in cylinders to be attached to the breathing device.
No written contract was ever made between the parties.
Deliveries of oxygen were first made on a regular schedule, but later the deliveries were made on the basis of a telephone call from a member of the Aldridge family.
The Aldridges and the Oxygen Service arranged that the oxygen cylinders upon delivery would be placed on a breezeway at the rear of the Aldridge home where the empty cylinders would also be placed, the empties being picked up at the time of the delivery of the filled cylinders.
The oxygen deliveryman would not knock or make his presence known, though if a member of the Aldridge family was seen, a receipt for the newly delivered cylinders would be procured. The Aldridges were able to attach the cylinders to the breathing machine and this chore was never performed by the deliveryman.
At first, Mr. Aldridge required only one cylinder of oxygen per delivery. As his need for oxygen increased beginning in December 1967, two cylinders would be delivered upon order, a renewal order being phoned in when one cylinder became empty. Mr. Aldridge's oxygen requirements ranged between four and twelve cylinders per month.
The cylinders containing the oxygen were green in color, and the Aldridges were cognizant of this fact.
While the regular hours of business of the Oxygen Service are from 8:30 A.M. to around 5:00 P.M., it maintained an answering service which notified whichever employee of the Service was on call "for the purpose of making oxygen deliveries during all non-business hours."
At 8:00 A.M., on 30 September 1968, Mrs. Aldridge telephoned the Service and placed an order for oxygen. Of the two previously delivered cylinders, one was empty, and the other one, which was attached to the breathing device, contained an unknown quantity of oxygen.
Mrs. Aldridge left for work at 8:15 A. M. Upon her return from work at 5:45 P.M., she observed two cylinders on the breezeway which she thought to be oxygen. These two cylinders were blue in color, rather than green.
Unknown to the Aldridges, these two blue cylinders contained nitrous oxide, an anesthetic, which is never delivered to private homes but only to dentists, doctors, or hospitals.
At 4:30 A.M., the following morning (1 October 1968), the oxygen cylinder attached to the breathing machine having become empty, Mrs. Aldridge procured one of the blue cylinders and attempted to attach it to the breathing machine. She could not make the attachment, nor could she attach the second blue cylinder. In fact, the blue tanks are so designed that they cannot be attached to the type of breathing machine used by Mr. Aldridge.
Mr. Aldridge then began using a portable oxygen breathing machine. After an hour or so this oxygen supply was exhausted. When it became apparent that this oxygen supply was depleted, Mrs. Aldridge placed a call to complainant's telephone number and stated that oxygen was needed, and that wrong cylinders had been delivered the previous day. She was informed by the person answering her call that oxygen would be delivered as soon as someone came in. Three more calls were made by Mrs. Aldridge, at 7:00 A.M., 8:00 A.M., and shortly after 8:00 A.M., repeating the order and explaining the desperate need for oxygen. Again promises were made to deliver oxygen.
*618 Shortly after the last call, since no oxygen had been delivered, Mrs. Aldridge telephoned for an ambulance, requesting that oxygen be brought with the ambulance.
The oxygen company's truck arrived at about the same time as the ambulance. Whether it arrived before or after the ambulance, is in dispute under the evidence.
Mr. Aldridge was taken in the ambulance to a hospital where he died the next day.
The blue cylinders had been erroneously delivered to the Aldridge home by an inexperienced deliveryman on his first day of employment. He had not been instructed as to the difference between the blue cylinders and the green ones. The error was discovered by Dan Moseley, an experienced deliveryman of the company, around 5:00 P.M., on 30 September.
Moseley testified that upon discovering the error in the delivery of the cylinders, he delivered a full cylinder of oxygen to the Aldridge home between 6:00 and 7:00 P.M., on 30 September 1968, leaving it on the breezeway with the blue cylinders. He did not notify the Aldridges of this delivery, nor tell them of the erroneous delivery of the nitrous oxide cylinders.
In this connection, Mrs. Aldridge testified that when she went to the breezeway at 4:40 A.M., on 1 October 1968, she did not notice any cylinders there other than the two blue ones.
Moseley further testified that when he delivered the cylinder of oxygen on 30 September, he noticed the two blue cylinders in the breezeway. He did not retrieve them since a delivery was scheduled for the next morning and he knew they could not be attached to the breathing device. Upon arriving at work on the morning of 1 October, he learned of the Aldridge's call for oxygen and left with two cylinders of oxygen within 15 minutes. He testified he arrived about five minutes before the ambulance and proceeded to administer to Mr. Aldridge with the green cylinder he had left in the breezeway the day before.
There was evidence to the effect that the green and blue cylinders are indistinguishable to the untrained eye except for their colors. The Aldridges had never been told of the differences in the contents of the two cylinders.
On 19 December 1968, Mrs. Clarence Aldridge, as administratrix of the estate of Clarence Aldridge, deceased, filed a five count complaint against Birmingham Oxygen Service for the wrongful death of her husband.
Birmingham Oxygen referred the complaint to United States Fidelity and Guaranty Company which notified them that the claim was not within the coverage of a policy issued by U. S. F. and G. to the Oxygen Service. This declaratory action followed which resulted in a decree in favor of the Birmingham Oxygen Service as above mentioned.
The policy herein involved is termed a Special Multiperil Policy. The policy contains a schedule of several different types of coverage available under the liability section of the policy. This schedule shows that Birmingham Oxygen purchased two of these types of coverage: "Premises-Operations Hazard," and "Products-Completed Operations Hazard."
The "Premises-Operations Hazard" furnishes the basic liability coverage, and in Section II C, said coverage is set forth as follows:
*619 We note here that under the "Definitions" provision of the policy the term "operations" is not defined. However, in paragraph (IIDefinitions, i, 2, a) pertaining solely to "Products-Completed Operations Hazard," it is set forth that "the following shall not be deemed to be `operations' within the meaning of this paragraph:
a. pick up or delivery, except from or onto a railroad car." (Emphasis ours.)
Appellant's assignment of error No. 1 reads:
"The trial court erred in rendering judgment for complainant (appellee) and against this respondent (appellant)"
Under this assignment, counsel for appellant argues several reasons as supportive of his assertion of error. We find no merit in any of the reasons advanced.
First, if we interpret counsel's argument correctly, it is asserted that there was no "occurrence" causing injury to Clarence Aldridge arising out of the operations of the Birmingham Oxygen's business.
It would seem that the terms of the policy itself furnishes an answer to this question. In paragraph g of the "Definitions" section of the policy "Occurrence" is defined as follows:
In brief, however, counsel writes:
A complete answer to the above contention is that the activity or passivity of the cylinders of oxygen is not the basis of the administratrix's claim for damages, but rather the alleged negligence of Birmingham Oxygen in supplying the cylinders of oxygen under the circumstances averred in the suit for damages.
"Occurrence" has been defined as "that which occurs, an event, incident or happening," (Jones v. Kansas City (Mo.), 243 S. W.2d 318); or as "* * * synonymous with event and applies literally to anything that happens or occurs" Portaro v. American Guarantee and Liability Ins. Co., D.C., 210 F. Supp. 411.
We hold that there was an "occurrence" within the terms of the coverage provisions of the policy set out above.
Counsel for appellant next argues that the act complained of in the complaint filed in the damage suit arose out of the delivery of oxygen cylinders, and therefore should not be considered an "operation" under the terms of the policy. To sustain this argument, counsel attempts to invoke a provision of paragraph II-i, 2, a, which by its terms is limited to the Products-Completed Operation Hazard insurance. These provisions have been set out above. While the term "operations" does appear in the two categories of coverage for which premiums were paid, we see no basis for holding that the definition of "operations" pertaining to the Products-Completed Operation Hazard coverage should be applied so as to limit the general and undefined term "Operations" appearing in the general coverage provisions. Clearly, under the evidence the sale and delivery of oxygen and allied gases was the principal business of Birmingham Oxygen Service, and without question was necessary and incidental to the operation of the business.
Counsel next contends that Mrs. Aldridge's cause of action is grounded in contract and not in tort, and was therefore *620 within the exclusion of the contract provided in Section III B, Subsections. This allegedly applicable exclusionary provision reads:
Counts 1, 2, and 3, of the complaint filed in the damage suit set forth in the forepart of each count, the need of Clarence Aldridge for oxygen, the rental of the breathing machine from Birmingham Oxygen Service, the ordering of oxygen cylinders on 30 September 1968, and the delivery of unusable cylinders by Birmingham Oxygen.
Count 1 then charges that Birmingham Oxygen negligently delivered cylinders with attachments that would not connect or attach to the breathing machine, and as a proximate result of such negligence Clarence Aldridge died.
Count 2 is substantially the same as Count 1 except that the negligence averred was the delivery of cylinders which did not contain oxygen, but contained an anesthetic gas.
Count 3 is the same as Counts 1 and 2 in the preliminary averments, but charges negligence on the part of Birmingham Oxygen in failing or refusing to deliver the oxygen cylinders upon the urgent request of the Aldridges.
The allegations as to the agreement set out in Counts 1, 2, and 3, were mere matters of inducement to show the relation between the parties, and to show there was a breach of duty owed by the Birmingham Oxygen Service to Clarence Aldridge, arising from the contractual relations of the parties. Carpenter v. Walker, 170 Ala. 659, 54 So. 60; Western Union Telegraph Co. v. Hill, 163 Ala. 18, 50 So. 248.
If a cause of action declared in pleading arises from a breach of a promise, the action is ex contractu, whereas if it arises out of a breach of a duty growing out of the relationship of the parties because of the contract, the action is in form ex delicto. White v. Levy, 91 Ala. 175, 8 So. 563; Chambers v. Birmingham Trust & Savings Co., 232 Ala. 609, 168 So. 893; Wesson Oil & Snowdrift Co., Inc. v. Orr, 274 Ala. 463, 149 So. 2d 462; Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So. 2d 817; C and C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So. 2d 124.
We hold that as to Counts 1, 2, and 3, Mrs. Aldridge's action as administratrix was in tort, and therefore the exclusion which U. S. F. and G. seeks to invoke is not applicable to these counts.
In brief counsel for U. S. F. and G. contends that:
Counsel does not further elaborate. Apparently it is counsel's view that the agreement was between Birmingham Oxygen Service and Mr. Aldridge, and Mrs. Aldridge not being a party thereto cannot bring any action, even as administratrix, because of the provisions of the exclusionary clause B 2.
Under Section 123, Title 7, Code of Alabama 1940, a personal representative may maintain an action and recover damages for the wrongful act, omission, or negligence *621 of any person whereby the death of his testate or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death.
In such action, a personal representative acts as agent of legislative appointment, and upon a recovery, he acts as a quasi trustee for those who are entitled thereto under the statute of distribution. Such damages are not subject to administration and do not become a part of the deceased's estate. Shirley v. Shirley, 261 Ala. 100, 73 So. 2d 77; Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; Breed v. Atlanta, V. & C. R. Co., 241 Ala. 640, 4 So. 2d 315; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612.
Further, the decree rendered by the Chancellor is general in nature, and is referable to any of the counts in the complaint filed by the administratrix that would sustain it, just as a general verdict is referable to any good count in a complaint.
Counts 1, 2, and 3, would therefore furnish a sufficient basis to sustain the decree rendered by the Chancellor.
We would be indulging in speculation to assume that the complaint filed by the administratrix might not be amended even to the extent of striking some of the counts, adding other counts, etc., prior to submitting the issues to the jury. In the posture of the case as now presented to us in this declaratory action, any conclusion other than the one we have reached would be premature and unwarranted.
Counsel has made several additional assignments of error. What we have written above is applicable to these additional assignments, and is dispositive of them.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | March 15, 1973 |
913d227e-955a-4d85-b4b0-4d56e34f1657 | Goldman v. Jameson | 275 So. 2d 108 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 108 (1973)
David W. GOLDMAN
v.
W. G. JAMESON et al.
SC 67.
Supreme Court of Alabama.
March 22, 1973.
*109 Markstein & Morris, and Daniel H. Markstein III, Birmingham, for appellant.
Lanier, Shaver & Herring and John R. Wynn, Huntsville, for appellees.
McCALL, Justice.
This is a stockholders' derivative suit, brought in equity by David W. Goldman, a minority shareholder in and former director of Fabric World, Inc., a corporation, on behalf of himself and the corporation against its remaining six corporate directors. The corporation, which is a rapidly expanding fabric goods retail corporate chain, is also made a party respondent. After the complainant rested his case, the respondents offered no evidence, and submitted upon their amended answer to the bill of complaint and their oral motion to exclude the evidence.
The respondents' oral motion, found in the record, was to exclude the evidence on the grounds (1) that the evidence adduced has been of no sufficient probative force to make a prima facie case, and (2) the absence of any proof that the complainant made demand upon the directors of respondent Fabric World, Inc., that they institute suit on its behalf against the individual respondents. After the motion to exclude was made the court expressed its concern as to whether or not a prima facie case had been made out by the complainant *110 against the respondents and then took the motion under advisement. The chancellor made the further remark that in case he overruled the motion to exclude, he would permit additional testimony on the respondents' behalf and allow complainant the right of rebuttal, thus clearly demonstrating that the submission was grounded on the motion to exclude and the motion to dismiss the case.
After noting that the cause had been submitted on the respondents' "Motion To Exclude Testimony" and "Motion To Dismiss Bill of Complaint," made orally in open court, the court decreed that the law and the evidence in the cause rendered the bill of complaint to be without merit and subject to an order of dismissal. Whereupon, the court dismissed the bill of complaint. From this final decree dismissing the suit the appeal is brought by Goldman.
Substantially, the bill of complaint avers that the complainant Goldman was wrongfully removed from the board of directors of Fabric World, Inc.; that fees paid the directors were in fact disguised dividends based on their stock investments rather than consideration for services rendered; that the individual respondents caused Fabric World, Inc., to pay its officers, respondents Jameson, Edmonsond and McMahan, compensation so excessive as to bear no reasonable relation to the value of their services; that the respondents have wasted corporate assets by leasing and providing for the personal use of its said officers luxury automobiles, hospital insurance, and other fringe benefits; that respondent Jameson has furnished stockholders a balance sheet showing liability for accrued income tax that bears no reasonable relation to taxable income reported by it; that there was a significant discrepancy between the corporate inventory reported on the tax return and that reported to stockholders; that the dissipation of corporate assets in the unprofitable operation of the Greensboro, North Carolina store should be stopped; that the individual respondents have wrongfully caused Fabric World, Inc., to purchase excessive amounts of insurance on the lives of the respondent officers of the corporation; and that the individual respondents have wrongfully caused the corporation to purchase fixtures through the subterfuge of selling them to a lease-back corporation all to the detriment of the corporation.
The primary aspect of the prayer to the bill is that the court ascertain what would have been reasonable compensation and fringe benefits to its officer-directors Jameson, Edmonsond and McMahan for the duration of their employment, and that judgment in favor of Fabric World, Inc., be rendered against said officer-directors for any amount in excess of reasonable compensation.
The contention of the complainant Goldman, the minority stockholder, is that the officer-directors Jameson, Edmonsond and McMahan acting for the board of directors, fixed their own salaries and compensation, in amounts so excessive as to bear no reasonable relation to the value of the services performed by any of them for the corporation. The complainant also contends that the same three officers authorized payment of disguised dividends in the form of director's fees to the respondents, Robins and Pope, all of which were excessive and to the exclusion of dividends to the complainant. These alleged wrongs of management, shareholder Goldman insists, are being carried on at the expense of the minority stockholders in depriving them of dividends, though the complainant was the only stockholder who complained.
The evidence tended to show that the incorporation of Fabric World, Inc., was in October, 1968. It began business in late November of that year. About the end of September or early October, 1968, prior to incorporation, all of the contemplated stockholders, who were also to become directors of Fabric World, Inc., including the complainant Goldman, agreed that whatever Jameson and Edmonsond decided the business could pay, as their officer salaries *111 to start it out, would be agreeable to all the shareholders. Jameson testified that he and Edmonsond with approval of all stockholders, set their salaries based on the business done by the corporation. So, it was left entirely in the discretion of these two officer-directors as to what their salaries as corporate officers were to be. On this authority Jameson and Edmonsond fixed their salaries at $16,133.37, each for the period beginning in November of 1968 through December 3, 1969. In addition they fixed the fees of directors other than corporate officers who received no director fees, first at $150 per meeting, and later at $500 per meeting for Goldman and Robin, and $1000 for Pope who owned twice as much stock as the others and because his knowledge was more valuable to the corporation. Goldman expressed no objection so long as he remained a director. For 1970 and 1971, these same two officer-directors again fixed their compensation, pursuant to authorization by the stockholders given at a meeting held in the fall of 1969, which directors Goldman, Pope, Robins, Edmonsond and Jameson attended. The specific authorization was to pay whatever was fair to the corporation as their salaries. For these two years they fixed their salaries by separately written employment contracts made by themselves with the corporation. By the terms of these contracts, if total sales volume exceeded 2.5 million, Jameson was to be compensated at the rate of $5,000 per month for a total annual salary of $60,000 and Edmonsond at the rate of $3,600 per month, for a total annual salary of $43,000. In 1970, salary drawn down constituted one part of the total annual compensation, while the additional amounts to make up the total $60,000 and $43,000, respectively, were called bonuses. No such bonuses were paid for 1971 to Jameson and Edmonsond. These contracts also provided that should the total volume of sales exceed five million dollars for 1971, Jameson would be increased to $6,000 per month or $72,000 for 1972, and Edmonsond to $4,200 per month, for a total of $50,400 for 1972. The contracts provided they were revocable only on the vote of the majority of stockholders. Neither the contracts nor the salaries paid thereon were expressly ratified by the directors. There was some question as to whether any one else even knew of their existence.
The respondent, Denton O. McMahan, became a stockholder in Fabric World, Inc., early in 1971 by exchanging his shares in Fabric World of Kentucky for shares in the former corporation. In March, 1971, Jameson and Edmonsond elected McMahan secretary and vice-president, and named him a director of Fabric World, Inc. The three of them, Jameson, Edmonsond and McMahan, together fixed his salary and bonuses, according to McMahan's testimony. For 1971, he received $2,000 a month, or an annual salary of $24,000 with provision for additional compensation of $10,000 payable March 10, 1972, should total sales volume exceed five million dollars in 1971. For 1972, his salary was fixed at $3,000 per month, or $36,000, per year, should total sales volume exceed five million dollars for the year. As will be observed, the compensation of these three officers, Jameson, Edmonsond and McMahan, was based on total volume of sales alone, and while the amount of total sales continued to rise annually $660,784.89 in 1969, $2,641,377 in 1970, $5,000,000 in 1971, and an estimated $10,000,000 in 1972, the net income for tax purposes was relatively smallin 1969, it was $19,893.77; for 1970, $4,188; for 1971, approximately $26,000. During the same years, profits for expenditures for the purpose of expansion, as for compensation, increased. In 1970 and 1971, $464,000 was reinvested on capital development. Thus, while the corporation has turned large amounts of its profits back into the business, expanding the number of its retail outlets from one to ten, with still further expansion and increased salaries contemplated, no dividends have been paid to its shareholders.
Jameson and Edmonsond own some eighty percent of the shares of stock in *112 Fabric World, Inc., and exercise full control over management and operation of the corporation, claiming their majority stock ownership as their right to do so. It is quite clear from the evidence that what these two stockholders thought ought to be the rule, became the rule, and the assertion of objection was considered by them as antagonism and ground for removal of Goldman as a director.
It further appears that all other decisions with respect to calling directors' meetings, fixing their fees, travel expenses, paying employees, expansion of business, and the method of arriving at year-end inventories were made by Jameson and Edmonsond, participated in by McMahan.
Here is a pertinent extract from Jameson's testimony:
* * * * * *
One ground upon which the court may have acted in granting the motion to exclude was that Goldman failed to make demand on the directors to sue on behalf of the corporation. We think this would have been an unsupportable ground upon which to dismiss the cause. The stockholders of Fabric World, Inc., other than the complainant Goldman, who are appellees here, constitute all of its present directors. These six directors, as party respondents to the appellant Goldman's bill, are charged with numerous acts of corporate mismanagement and wrongdoing. In certain instances money recoveries are sought against some of them. Out of the *113 six appellee directors, four are charged with the wrongful removal of the appellant as a corporate director. In this state of affairs, it would have been wholly futile and useless for the appellant to have appealed to the board of directors or to the stockholders to redress the alleged corporate wrongs before instituting his suit. An appropriate answer to appellees' objection on account of the appellant's failure to demand director action may be found in Ellis v. Vandergrift, 173 Ala. 142, 152, 55 So. 781, 784, where the court said:
Appellant Goldman complains that the directors have participated in a scheme to collect disguised dividends in the form of directors' fees. The cases are fairly uniform that he cannot now be heard to complain of the fees paid while he was a director and recipient of those fees. He is estopped by his own participation. It has been held that where a plaintiff was an officer-director, who was forced out by majority interests, his suit to recover unreasonable salaries was barred for the portion paid while he was a director, but as to the portion paid after he was forced to resign from active management, the court said "of course, after plaintiff was forced to resign as an officer and employee his status was that of a minority stockholder, and he was not barred from questioning on behalf of the corporation the compensation thereafter paid to the individual defendants." Ruetz v. Topping, 453 S.W.2d 624, 628 (St.L.Ct.App., Mo.1970).
Similarly in Barrett v. Smith, 185 Minn. 596, 242 N.W. 392 (1932), complaint was made about two annual bonuses voted by the board of directors to a corporate officer. The present plaintiffs, minority stockholders, who had been ousted by the majority interest, had voted for the award of one of the bonuses while they were directors. It was held that there could be no recovery of the bonus for which they had voted, but as to an earlier bonus, it not appearing that they had in any way approved of it, it was proper to order repayment to the corporation.
In Massoth v. Central Bus Corp., 104 Conn. 683, 134 A. 236 (1926), it was held that plaintiffs who had participated in a salary awarding arrangement were estopped insofar as their consent and participation went, but they could, by revoking their consent, shed the estoppel, and, for unauthorized salaries received thereafter, demand an accounting. To the same effect is Holdridge v. Lloyd Garretson Co., 163 Wash. 1, 299 P. 657 (1931).
Therefore, Goldman was not entitled to demand restitution of directors fees prior to August 1971. However, he is not estopped to question the reasonableness of those fees subsequently paid the directors in which he did not participate, for otherwise, a corporate wrong, if the fees be excessive corporate dividends, would continue unabated indefinitely.
The aid of equity is invoked here, not to declare the fees and salaries paid the officers and directors wholly invalid but to require the individual appellees to repay the corporation any amounts by which the fees and compensation paid, may exceed the reasonable value of the services rendered.
The general rule has been stated many times in our former decisions as follows:
Again in Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 537, 21 So. 315, 317, the court said:
This court made the following observation in the case of Smith v. Dunlap, 269 Ala. 97, 101, 111 So. 2d 1, 3, which we think appropriate to cite here:
On appeal, the bare question for decision is whether the trial court erred in sustaining the respondents' motion to exclude the complainant's evidence and in dismissing the bill.
The chancellor decreed on the motion that "the law and the evidence in the cause render the Bill of Complaint to be without merit and subject to an order of dismissal." We must presume that the decree was made pursuant to the appellees' said motion, and construe it to mean that the appellant failed to make out a prima facie case entitling him to equitable relief, or that he failed to prove that he made a demand upon the directors before instituting suit.
Ordinarily, the burden falls on the dissenting stockholder to prove that the compensation paid by the corporation to its officers and directors is unreasonable. The burden so cast is to show by the evidence that the salaries and fees are so excessive as to bear no reasonable relation to the value of the services rendered. Reasonableness or unreasonableness of executive compensation is always a question of fact. Smith v. Dunlap, 269 Ala. 97, 111 So. 2d 1; Darmana v. New Orleans Stock Yards, Inc., 226 La. 897, 77 So. 2d 528; Fletcher Cyclopedia of Corporations, Vol. 5, § 2181, p. 694; 19 Am.Jur.2d, Corporations, § 1412, p. 803.
It has been held though that where the corporate officers fix and vote their own compensation, the burden is on them to prove the reasonablenss of their compensation. In the present case, all of the stockholders, including Goldman, who also were directors of the corporation, voted to allow Jameson and Edmonsond, who owned approximately eighty percent of the stock, authority to fix their salaries at whatever amount they thought was fair and reasonable to the corporation. Notwithstanding the appellant Goldman participated in the voting, we are unwilling to say that he is now estopped to complain that the salaries which the officers fixed for themselves are unreasonable.
Goldman may have agreed to their fixing of the salaries, but he did not imply *115 authority to fix unreasonable salaries. Nor is there testimony that he knew of the amounts paid and acquiesced in them for such a period as to bar his suit to recover them.
In Binz v. St. Louis Hide and Tallow Co., 378 S.W.2d 228, 230 (Mo.App.1964), after noting the holdings of many cases on the point, the court aptly summarized the applicable principle of law as to the burden of proof as follows:
In Davis v. Thomas & Davis Co., 63 N. J.Eq. 572, 52 A. 717 (1902), a suit to compel three officers and directors to return to the corporation allegedly excessive salaries, the vice chancellor concluded:
The same result was reached in McKey v. Swenson, 232 Mich. 505, 205 N.W. 583 (1925), placing the burden of showing the reasonableness of their salaries on officer-directors, where they, as major shareholders, had ratified their own act in setting the salaries. In accord also is Heise v. Earnshaw Publications, 130 F. Supp. 38 (D. Mass.1955), wherein it was said "* * * If it were just a question of an excessive salary voted in good faith, the burden of proving to what extent it was excessive would be on the plaintiff. * * * I believe a different situation prevails here. Because of the defendants intentional breach of duty it would be possible for me to rule that their entire raise in pay was forfeit. * * * Consequently I think it at least appropriate to place the burden on them [the officers] to justify what they received. * * *"
While it may be said that proper corporate form was followed in the delegation of power from the shareholders to the board of directors, and from the board to its executive committee, which was only incidentally also management, we will not be so blinded to the oneness of all these usually distinct entities as to say the officer-directors' actions in fixing their compensation were actually the acts of the corporation itself. Strict adherence to corporate form cannot hide the substance of the transactions. Neither will such adherence to corporate form be allowed to destroy the principle of fiduciary duty, owed by the officer-directors to fix only reasonable compensation for their own services. Carr v. Kimball, 153 App.Div. 825, 139 N.Y.S. 253 (1912); Shera v. Carbon Steel Co., 245 F. 589 (D.W.Va.1917).
Under the evidence offered by the appellant in this case and the law applicable thereto, the burden of proof to show the reasonableness of the fees and salaries was thus cast on the appellees.
Some of the factors commonly considered in determining whether a particular salary or compensation is reasonable or not are set out in the case of Smith v. Dunlap, 269 Ala. 97, 101, 111 So. 2d 1, 4, where it is stated:
Fletcher in his Cyclopedia of Corporations, Vol. 5, § 2133, p. 577, quotes the above with approval and the same work is cited as authority in Ruetz v. Topping, Mo.App., 453 S.W.2d 624, 628, where additional factors are set forth as tests or guides to be considered. That opinion mentions the employee's qualifications; the nature, extent and scope of the employee's work; the size and complexities of the business; a comparison of salaries paid with the gross income and the net income; the prevailing general economic conditions; a comparison of salaries with distributions to stockholders; the prevailing rates of compensation for comparable positions in comparable concerns; the salary policy of taxpayer as to all employees; and in the case of small corporations with a limited number of officers, the amount of compensation paid to the particular employee in previous years.
While the factors set out in the foregoing authorities constitute no hard and fast rule by which to determine the reasonableness of compensation in all cases, they are recognized as appropriate matters to consider, where relevant, as a guide to arrive at what is reasonable compensation.
The order of submission in this case shows that the appellant submitted on his bill, the admissions in the answer, the testimony of the witnesses, and the exhibits. The appellees submitted without resting on the amended answer and the motion to exclude the evidence, reserving in the submission, the right to put on testimony subsequent to ruling by the court on the motion. The appellees' submission therefore was qualified and, in effect, was only on the motion to exclude the appellant's evidence. The question is whether or not the court erred in granting the appellees' motion. The separate and several grounds of the motion, again, were that the appellant's evidence was insufficient to make a prima facie case, and appellant failed to make demand on the directors to institute suit. We have already pointed out, that the bill, in our opinion, contains equity, and that the appellant introduced evidence which was sufficient to make out a prima facie case and to cast the burden on the appellees of proving that the compensation was reasonable. Further, it appeared that a demand on the directors would have been in vain. The appellees offered no evidence.
It is an established rule in this jurisdiction that a motion by the defendant to exclude all of the evidence for the plaintiff after he has rested is improper and condemned in civil cases. Harrison v. Hall, 277 Ala. 90, 167 So. 2d 172; Brunson v. Brunson, 278 Ala. 131, 176 So. 2d 490; Western Ry. of Alabama v. Brown, 280 Ala. 543, 196 So. 2d 392; Lawson v. Garrett, 286 Ala. 125, 237 So. 2d 648; Tyler v. King, 287 Ala. 162, 249 So. 2d 821. The court will not be put in error for refusing such a motion. Cooper v. Providence Hospital, 272 Ala. 283, 130 So. 2d 8; Coward v. McKinney, 277 Ala. 513, 172 So. 2d 538. Nor will the court be put in error for granting the motion, if the plaintiff's evidence fails to make out a prima facie case. Marshall v. Marshall, 284 Ala. 512, 226 So. 2d 298; Dudley Bros. Lumber Co. v. Long, 268 Ala. 565, 109 So. 2d 684; Lawson v. Garrett, supra; Tyler v. King, supra. In deciding whether or not the plaintiff has made out a case, every conclusion which might reasonably be drawn from the plaintiff's evidence is admitted. 30A C.J.S. Equity § 457, p. 480.
*117 In Bly v. Southern Ry. Co., 183 Va. 162, 171, 31 S.E.2d 564, 568, 172 A.L.R. 584, the court said:
In Marshall v. Marshall, 284 Ala. 512, 226 So. 2d 298, at the conclusion of the plaintiff's evidence, the defendant, without resting, moved to exclude the evidence as to the plaintiff on the ground that there was a total lack of an essential element of wantonness. The court granted the motion to exclude. The Supreme Court said:
We see no reason why we should apply a different rule in this case from that applied in those cases at law on this proposition.
We think that there was evidence, or at least inferences or tendencies from the evidence, to reasonably support the appellant's suit, and that the state of the record in this case cast the burden of proceeding to show the reasonableness of the compensation on the appellees. The trial court should not, therefore, have excluded the appellant's evidence and dismissed his bill, but should have determined what relief, if any, the appellant was entitled to. For these reasons the trial court erred in its ruling granting the appellees' motion.
The decree of the court is therefore due to be reversed and the cause remanded. It is so ordered.
Reversed and remanded.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. | March 22, 1973 |
accbc45f-1cf7-45e2-8c84-019771edb091 | Lokos v. State | 274 So. 2d 303 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 303 (1973)
Dezso John LOKOS
v.
STATE of Alabama.
2 Div. 526.
Supreme Court of Alabama.
March 8, 1973.
MADDOX, Justice.
Dezso John Lokos was convicted of murder in the first degree and sentenced to death by a jury in Sumter County, Alabama, in February, 1964. The judgment and sentence of the trial court were in accordance with the jury's verdict. This court affirmed the conviction in Lokos v. State, 278 Ala. 586, 179 So. 2d 714 (1965). Lokos subsequently filed a petition for writ of error coram nobis in the Circuit Court of Sumter County. The petition was denied. This Court affirmed. Lokos v. State, 284 Ala. 53, 221 So. 2d 689 (1969). The United States Supreme Court, on June 29, 1972, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749, vacated the judgment insofar as it left undisturbed the death penalty imposed, and remanded the cause to this Court for further proceedings.
The issues in this case are the same as those decided by this Court in Wade Hubbard v. State of Alabama, 290 Ala. 118, 274 So. 2d 298 (1973). On the authority of Hubbard, the sentence of death imposed on the defendant, Dezso John Lokos, is vacated and set aside. The sentence is hereby corrected to provide that the said Dezso John Lokos 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 Sumter 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.
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.
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 MERRILL, COLEMAN, HARWOOD, BLOODWORTH, McCALL, FAULKNER and JONES, JJ., concur. | March 8, 1973 |
bd45b6b2-3fac-46e9-8670-b6b7fe3839ec | Cameron v. State | 273 So. 2d 248 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 248 (1973)
In re Jimmy Frank CAMERON
v.
STATE.
Ex parte Jimmy Frank Cameron.
SC 236.
Supreme Court of Alabama.
February 8, 1973.
William H. Rogers, Moulton, for petitioner.
McCALL, Justice.
Petition of Jimmy Frank Cameron for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cameron v. State, 49 Ala.App. 482, 273 So. 2d 242.
Writ denied.
HEFLIN, C.J., and MERRILL, COLEMAN, BLOODWORTH, MADDOX, FAULKNER and JONES, JJ., concur. | February 8, 1973 |
b3703e66-0fd5-4178-bc2f-803f7c1e93e5 | Land v. Shaffer Trucking, Inc. | 275 So. 2d 671 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 671 (1973)
Cynthia A. LAND, a minor, and Anthony H. Land, a minor suing by Martha V. Land, their Mother
v.
SHAFFER TRUCKING, INC., a corp.
SC 96.
Supreme Court of Alabama.
March 29, 1973.
*672 Traylor, Baker & Cole, Fort Payne, Jones & Landrum, Birmingham, for appellant.
Dunn, Porterfield, McDowell & Scholl, Birmingham, for appellee.
FAULKNER, Justice.
This is an appeal from the Circuit Court of Jefferson County from an order of the trial court denying plaintiffs-appellants' motion for a new trial.
The appellants are the minor children of Arthell H. Land, deceased. They brought suit below by their mother, Martha V. Land, to recover damages for the wrongful death of their father. They alleged that their father was killed when he was run over by a truck operated by defendant's agent, servant, or employee while acting within the line and scope of his employment. The case was tried before a jury upon defendant-appellee's plea in short by *673 consent. At the end of testimony and summation by counsel, and upon request by defendant, the trial court gave the general affirmative charge for the defendant. Plaintiffs' motion for new trial, containing five grounds, was overruled by the trial court. Three of the grounds in the motion for new trial involve alleged error by the trial court in granting the general affirmative charge for the defendant. Two of the grounds allege that the jury verdict returned for the defendant was contrary to the evidence.
The rule in this state is that in civil cases the question must go to the jury if the evidence or reasonable inferences therefrom furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, a scintilla in support of the theory of the complaint. Lankford v. Mong, 283 Ala. 24, 214 So. 2d 301 (1968). It is equally well settled by this court that in determining the propriety of giving a general affirmative charge upon the request of the defendant, the evidence most favorable to the plaintiff must be accepted as true. Purity Ice Co., Inc. v. Triplett, 257 Ala. 116, 57 So. 2d 540 (1952). Under these well established rules of law, did the trial court err in granting the defendant's request for the general affirmative charge? The evidence before the court is summarized. Land Truck Lines, Inc. of Albertville, Alabama, by its president, Arthell H. Land, the decedent in this case, entered into an agreement with Marvin L. Gatlin whereby Gatlin, with a tractor owned by him, would pull trailers owned by Land Truck Lines, Inc. The agreement provided for sharing the revenue received from the operation between the corporation and Gatlin. This business venture began in July, 1968. There appears to have been no official termination of it. However, Arthell Land was killed on January 3, 1969, when he was run over by a tractor-trailer rig being operated by Gatlin in Jasper, Alabama.
Some weeks before the accident which is the basis of this suit, Land Truck Lines sent Gatlin to Monroe, Louisiana to get a trailer owned by Land Truck Lines. When Gatlin gained possession of the trailer in Louisiana, he failed to return it to its rightful owner. Instead, Gatlin engaged in a bit of "free enterprise" of his own by pulling the trailer with his tractor. Gatlin traveled to various places over the United States, hauling loads of cargo with Land Truck Lines' trailer. He did not share the revenue collected therefrom with Land. It appears from the evidence that Land did not know where Gatlin or his trailer were for a period of three weeks prior to the death of Land. During a part of this three weeks period Gatlin was in New York. Rather than travel back south with an empty trailer, Gatlin made inquiry of shippers and discovered that Shaffer Trucking, Inc., whose home office is in New Kingstown, Pennsylvania, could arrange a shipment. Gatlin drove to Pennsylvania from New York and entered into a lease of the rig with Shaffer (called a trip lease) to transport cargo from Inwood, West Virginia to two consignees in Meridian, Mississippi. The trip lease showed Land Truck Lines as the owner of the motor vehicle, with Gatlin as the driver. Land had no knowledge of this trip lease. Gatlin was to receive all the revenue from the trip. The temporary cardboard signs on the sides of the tractor showed the name "Shaffer Trucking, Inc."
After loading the cargo in West Virginia, Gatlin drove to Meridian, Mississippi, and unloaded the cargo consigned to the first consignee. At that time he was approached by three men who were regularly employed in the business of repossessing trailers. They demanded possession of the trailer. Gatlin refused to give up possession, and not being detained further by the three men, drove to a "truck stop" in Meridian, Mississippi, followed by them. (He still had in the trailer the cargo consigned to the second consignee in Meridian.) From there he called his lawyer in Alabama for advice. The lawyer advised Gatlin to get back to Alabama as fast as he could.
*674 Without delivering the remaining cargo to the second consignee, and without any interference from the three repossessors, Gatlin left Meridian and headed for his home in Alabama. He was still followed by the repossessors. Gatlin drove north toward Tuscaloosa, Alabama. Just inside the Alabama state line he stopped again at a "truck stop" and drank coffee. He was joined in this social event by the three repossessors. There was no interference by them at this time with Gatlin's direction of travel.
Gatlin, upon leaving this "truck stop" again proceeded north with the tractor and trailer and the undelivered Meridian cargo, toward his home in or near Arab, Alabama. He did not stop until he was apprehended by a State Trooper and given a traffic citation in Jasper, Alabama. The trailing repossessors stopped at the scene of the confrontation between law enforcer and law violator. While at the scene, Gatlin's son, age 19 years, who had gone to Meridian with his father to assist him in unloading the cargo, got into an altercation with the three repossessors and was escorted to the Jasper jail by an officer. Being unsuccessful in obtaining the release of his son from the Jasper jail by pleading with officials in the courthouse located across the street from the jail, Gatlin left and walked toward his tractor-trailer rig, which he had moved and parked in front of the Jasper jailhouse. He was going to his home. His words were, "I was ready to leave the jail and go home." The decedent, Land, now appeared and demanded possession of his trailer. Land said to Gatlin, "Ole buddy, I believe you have pulled that one your last mile."
Gatlin refused to give it up and entered the driver's side of the tractor. Land followed by entering the cab from the passenger's side. Gatlin started the motor and began forward movement of the rig. Land then removed the ignition key of the tractor. Whereupon, Gatlin drew a gun on Land and recovered possession of the key. Gatlin said, "I have got a lot of road to cover, get your damn hands off my truck." Land retreated from the cab to the street. The rig moved forward. Land was crushed to death under the rear wheels of the trailer. There were no witnesses as to how Land stepped, fell, or slipped under the moving trailer. Gatlin was then placed in the Jasper jail. He was permitted to call Shaffer to give it information as to the location of the cargo. Shaffer made arrangements with another carrier to transport the cargo to the second consignee in Meridian, Mississippi.
Each case must be governed by its own peculiar facts, and from the evidence here this court is of the opinion that Gatlin was the agent, servant, or employee of Shaffer; that Gatlin was outside the scope of his employment at the time of the accident; that Gatlin abandoned his employment when he left Meridian, Mississippi, and returned to Alabama for personal reasons. Where the servant abandons his master's business for personal reasons, the employment is suspended, and the master is not liable for the negligence of the servant during the suspended employment, and during the time of the servant's departure from the master's business. Engel et al. v. Davis, 256 Ala. 661, 57 So. 2d 76 (1952). Here the deviation by Gatlin from the scope of his employment was very marked and unusual. He was proceeding in the opposite direction from the consignees in Meridian and was over 100 miles north of them when the accident occurred. As said in Engel, supra, while citing Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L.R.A. 161, 38 Am.St.Rep. 361, with approval,
The direction in which the employee is travelling in relation to his business destination, may, and often is, a significant factor in determining whether he is within the scope of his employment. It was stated in Stovall v. Jepsen, 195 Miss. 115, 13 So. 2d 229 (1943) that the inference that the driver was not acting within the scope of his employment may be justified or required, where the evidence discloses that at the time of the accident, he was travelling away from his destination. In our state the Court of Appeals held that the evidence required a finding that the driver was outside the scope of his employment where he was directed to drive to a certain town and return, but continued on beyond that town for a distance of 20 miles when the accident occurred. Jackson v. DeBardelaben, 22 Ala.App. 615, 118 So. 504 (1928).
The statement by Gatlin to Land, "I have got a lot of road to cover, get your damn hands off my truck" may lend itself to speculation that Gatlin intended to return to Meridian to deliver the remaining cargo. (However, just previous thereto, he said he was going home.) This is not sufficient to bring him within the scope of his employment.
This court has held that when a servant has abandoned his employment by the master, the mere fact that he is returning thereto does not of itself reinstate the servant in the master's employment and establish the engaging in the master's business so as to subject the master to liability and for damages resulting after the abandonment and before return is an accomplished fact. Bell v. Martin, 241 Ala. 182, 1 So. 2d 906 (1941); Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829 (1935).
Finally, there is absolutely no evidence as to how Land was run over by the rig driven by Gatlin. Gatlin testified that the last time he saw Land, Land was standing on the curb behind the moving tractor.
We have reviewed the entire record and hold that there was not sufficient evidence to submit the case to the jury and that the trial court was correct in giving the general affirmative charge for the defendant.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | March 29, 1973 |
d3435bb9-1a54-4d1f-832d-4d5900e306ee | Birmingham Trust Nat. Bank v. Central Bank & T. Co. | 275 So. 2d 153 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 153 (1973)
In re BIRMINGHAM TRUST NATIONAL BANK, a corporation
v.
CENTRAL BANK & TRUST COMPANY, a corporation.
Ex parte CENTRAL BANK & TRUST COMPANY, a corporation.
SC 269.
Supreme Court of Alabama.
March 22, 1973.
Robert E. Parsons, Birmingham, for petitioner.
No brief for respondent.
JONES, Justice.
Petition of Central Bank & Trust Company, a corporation, for writ of certiorari to the Court of Civil Appeals to review and revise judgment and decision of that court in Birmingham Trust National Bank v. Central Bank & Trust Company, 49 Ala. App. 630, 275 So. 2d 148 (1973) is denied.
In denying the petition for writ of certiorari in this case, this Court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Civil Appeals.
Writ denied.
HEFLIN, C. J., and COLEMAN, MADDOX and McCALL, JJ., concur. | March 22, 1973 |
04ec0f2c-7c7f-4cd3-80dd-e441fc00b395 | RC Bottling Company v. Sorrells | 275 So. 2d 131 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 131 (1973)
R. C. BOTTLING COMPANY et al.
v.
Billy R. SORRELLS.
SC 175.
Supreme Court of Alabama.
March 8, 1973.
Rehearing Denied April 5, 1973.
*132 Powell & Sikes, Andalusia, for appellants.
James M. Prestwood, Andalusia, for appellee.
JONES, Justice.
This is an appeal from a judgment entered on a jury verdict of $20,000.00 in favor of the plaintiff-appellee, Billy R. Sorrells, and from a later judgment denying *133 defendants-appellants' R. C. Cola Bottling Company and Joe Weaver, motion for a new trial. The complaint had one count, which alleged that appellant Weaver, while acting within the line and scope of his authority as agent, servant or employee of appellant, R. C. Cola Bottling Company, negligently operated a truck owned by appellant bottling company so as to cause the same to collide with the automobile which appellee was driving at the time; and that as a proximate result thereof, appellee was caused to suffer personal injury and the acute aggravation of a pre-existing arthritic condition.
On November 13, 1970, the appellee was driving his automobile in or near Sanford, Alabama, on U. S. Highway 84. Weaver, driving a R. C. Cola Bottling Company truck loaded with soft drinks, was proceeding along the same highway in the process of making his routine deliveries. Sorrells came up behind the R. C. Cola truck and started to pass and go around. At that moment, Weaver attempted to turn left into the driveway of a customer. The resulting collision is the basis of this suit.
Appellants bring five assignments of error, but of these, only assignments two through five are argued in brief and can be considered.
Appellants' assignment of error number 2 is as follows:
On direct and re-direct examination Sorrells testified, without objection, concerning a conversation he had with the state trooper investigating the accident. He related what the trooper had said about dirty turn signals being difficult to see in the sun, his driver's license, his insurance, and things of that nature. Sorrells concluded by saying, ". . . but that outside of the accident that's all I recalled him asking me specifically."
On re-cross examination the court sustained counsel for appellee's objection when appellants' counsel asked the question set out in the above assignment of error. Appellants contend such ruling was reversible error on the theory that where part of a conversation has been introduced into evidence by one party then all of the conversation may be brought out by the other party even though the conversation might be hearsay. As authority for this contention, appellants cite four cases of this Court which, under the particular circumstances of those cases, do support appellants' theory.
While appellants' general proposition is well established, we must hasten to add that said rule is subject to an important qualification; i. e., those parts of the previously introduced conversation relating to entirely separate and independent subjects, or to matters not relevant to the issues on trial, may not be brought out. 58 Am.Jur. at 353.
The precise problem presented by the instant case was answered by this Court in Bank of Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264, as follows:
Applying the above rule to the present case we see that if counsel for the appellants had asked the appellee on re-cross if the trooper did not in fact also comment to him how clean the truck's turn signals were, or how cloudy it had been all day, such would have been quite proper. But, here the appellee was asked to give hearsay testimony amounting to an opinion of the trooper touching on an ultimate issue of fact in the case (Sorrells' contributory negligence). Consequently, we find the question was improper and the trial court committed no error in sustaining the objection.
Appellants' assignment of error number 3 is as follows:
We have often stated that great latitude should be given counsel in the content and scope of their closing arguments. Every fact the testimony tends to show, every inference counsel may think arises from the evidence, the credibility of the witnesses, as revealed by their manner, the reasonableness of their story, and many other considerations, are legitimate subjects of criticism and argument. Argument is intended to aid the jury in reaching a just and reasonable verdict; though the trial judge may use his discretion in controlling counsel's arguments, he must not limit too narrowly counsel's right to draw inferences from testimony before the court, and if he does so, reversible error is committed. Alabama Power Co. v. Goodwin, 210 Ala. 657, 99 So. 158; Birmingham Railway and Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548; Cross v. State, 68 Ala. 476.
In our adversary system of jurisprudence, the discretion of the trial court to control the conduct of the trial must not be exercised so as to unduly circumscribe the legitimate role of counsel. We are constrained to hold that the trial court abused its discretion in sustaining the objection to counsel's argument.
Appellants' assignments of error four and five take the points that the verdict is excessive and that a new trial should have been granted the appellants. Since appellants have argued these assignments together in brief, we will discuss their merit in the same manner.
It is apparent from the record that the jury determined that the appellee suffered to a permanent degree an acute aggravation of a pre-existing arthritic condition as a proximate result of the collision which is the basis of this litigation. This Court has stated numerous times that a jury verdict must be given great weight and will not be set aside except where justice demands. The trial court heard the evidence, observed the witnesses, and refused to grant a new trial. Upon a careful review of the record before us, we are at the conclusion that the verdict is not excessive as a matter of law. Vest v. Gay, *135 275 Ala. 286, 154 So. 2d 297; Chambers v. Culver, 289 Ala. 724, 272 So. 2d 236.
Reversed and remanded.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | March 8, 1973 |
8c8d04ee-6517-4181-9ff3-84c70682465f | Harnage v. State | 274 So. 2d 356 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 356 (1973)
In re Floyd E. HARNAGE, Jr.
v.
STATE.
Ex parte Floyd E. Harnage, Jr.
SC 217.
Supreme Court of Alabama.
February 22, 1973.
Sam M. Hamner, Anniston, for petitioner.
MADDOX, Justice.
Petition of Floyd E. Harnage, Jr. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of the Court in Harnage v. State, 49 Ala.App., 274 So. 2d 356.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | February 22, 1973 |
d6ce3b58-3e6a-4b15-867a-eafe8ddfc9fe | Christian v. Rabren | 273 So. 2d 459 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 459 (1973)
Theresa R. CHRISTIAN et al.
v.
Tom RABREN.
SC 56.
Supreme Court of Alabama.
February 8, 1973.
Rehearing Denied March 8, 1973.
*460 James M. Prestwood, Andalusia, for appellants.
Tipler, Fuller & Barnes, Andalusia, for appellee.
JONES, Justice.
The respondents, Theresa R. Christian and her husband, J. M. Christian, appeal from a decree granting to the vendee specific performance of an alleged contract for the sale of land.
The pertinent facts are as follows:
W. J. Franklin was the owner of some 167 acres of land situated in Covington County, Alabama, of which he deeded 40 acres (sometimes referred to as 38 acres, more or less) to his daughter, Theresa Christian. The remaining 127 acres (or the remaining 86 acres as hereinafter discussed) passed at his death, intestate, to his three children, Wilbur Franklin, Mrs. Theresa Christian and Mrs. Athy Schlimer, as tenants in common, subject to his widow's right to dower and homestead. The appellee, Tom Rabren, wanting to buy the 127-acre tract and willing to take title subject to the widow's life interest, had his attorney draw up an option agreement between Rabren and the three children of W. J. Franklin and their spouses. However, Mrs. Schlimer and her husband lived in New York and had never expressed any desire to become a party to the option agreement. On March 25, 1969, the option agreement was presented to Mr. and Mrs. Wilbur Franklin and Mr. and Mrs. Christian for their signatures. In the acknowledgement section of the agreement the notary, Albert Elmore, had crossed through the Schlimer's names before it was signed by the Franklins or the Christians.
The option agreement provided that, for the consideration paid ($5.00), Rabren could purchase the described 127 acres at any time within twelve months for $9,200.00. Within the said twelve-month period Rabren notified the Franklins and the Christians in writing and orally that he intended to exercise his option and purchase their respective interests in the property. Rabren had been in correspondence with *461 the Schlimers and their decision not to sell remained unchanged. Rabren concluded that he must settle for a two-thirds interest. The Franklins readily signed a deed conveying their one-third interest in the property to Rabren for $2,076.61, being the agreed value of his interest, rather than one-third of the option purchase price of $9,200.00. This was explained (though somewhat vaguely) by Rabren and Franklin to the general effect that Rabren learned for the first time after the execution of the option on March 25, but before the date of trial, that the widow, in addition to her life interest, was the fee owner of 41 acres of the 127-acre tract, the subject of the option.
The Christians, however, refused to convey their interest even upon tender of a certified check for $3,066.67, being exactly one-third of the agreed price for the whole 127 acres. The Christians claimed the option was void and not binding on them. Hence, Rabren commenced this action seeking specific performance of the option agreement.
At the trial below, Mrs. Christian testified that it had been her understanding that when the land was sold to Rabren, the money ($9,200.00) would be placed in a trust fund to provide for their mother. When she learned that Wilbur Franklin intended to keep his share for himself and that her sister, Athy Schlimer, would not sell at all, Mrs. Christian refused to honor the option agreement. Rabren testified, on the other hand, that he knew nothing about any proposed trust agreement, and Wilbur Franklin said the only reason he knew why his sister (Mrs. Christian) had refused to sell was that she had changed her mind. There was no mention of any trust fund in the option agreement signed by the Christians.
After a hearing ore tenus, the trial court in its final decree filed January 28, 1972, found as follows:
The court decreed that respondents (Christians) specifically perform the option within twenty days by "... executing and delivering to the Register of this Court for delivery to the complaint a warranty deed conveying their undivided one-third interest to complainant in the lands..." [Emphasis ours.]
The court further decreed that should the Christians fail to comply with the decree within the time allowed, Rabren is the rightful owner of all the interest of the Christians in the land, and the register is directed to execute and deliver a deed conveying said property to Rabren.
On February 25, 1972, the Christians filed application for rehearing, setting forth, among other grounds, that the testimony established that the widow of W. J. Franklin has "complete ownership of forty acres" of the land involved in the 127-acre tract, and attached thereto a copy of a 1925 deed by which 41 acres, more or less, was conveyed by W. J. Franklin to his wife, L. B. Franklin.
After a hearing, the court on April 11, 1972, rendered a decree as follows:
The appellants, Mr. and Mrs. Christian, assign error as follows:
In addressing ourselves to appellants' first assignment of error, a brief recital of the pleadings may be helpful.
The portions of the original bill here pertinent are:
*463 The trial court sustained respondents' demurrer to the original bill, and complainant within the time allowed amended his complaint by adding the following averment and prayer:
The court overruled respondents' demurrer to the amended bill, and this ruling is assigned as error.
After a careful review of appellee's bill as amended, with the option agreement incorporated therein by reference, we are at the conclusion that appellants' demurrer to said bill was properly overruled by the trial court. Our decisions have followed the rule that a complainant's right to equitable relief must be shown with sufficient certainty to enable the court to see plainly that the complainant has such a right as warrants the court's protection; and, too, the averments of the bill must inform the respondent of the nature of the case which he is called upon to defend. Swann v. Reconstruction Finance Corp., 241 Ala. 286, 2 So. 2d 770; Adler v. First National Bank of Birmingham, 233 Ala. 325, 171 So. 904. The same precision of statement is not generally required in equity as at law, and the certainty with which averments must be made will always depend on the particular circumstances of each case. Fuqua v. Roberts, 269 Ala. 59, 110 So. 2d 886.
When, as here, a bill shows a contract of sale and an agreement to convey which is at least definite enough to be performed, it is not necessary that said bill should negate any other conditions or terms. If such are asserted by the respondents, these are defensive matters available only by plea or answer. A complainant is only required to show in his bill affirmatively a right to relief; he is not required, nor would it be proper, to anticipate and negate all possible defenses. McKenzie v. Sutton, 250 Ala. 447, 34 So. 2d 825; Penney v. Norton, 202 Ala. 690, 81 So. 666. Appellants' demurrer to the bill as amended was without merit and properly overruled.
The appellants' second assignment of error takes the following points: (1) The trial court erred in requiring the appellants to convey all of their interest in the subject real property without specifying the extent of their interest, and (2) in ordering the appellants to convey any "after acquired" interest in the property.
Though the Christians admitted in their answer that they owned an undivided one-third interest in the 127-acre tract described in the option contract, the deed attached to appellants' application for rehearing indicates that, in fact, the appellants own only a one-third interest in some 86 acres. The decree on application for rehearing shows that the trial court recognized that the extent of Christians' interest in the 127-acre tract was in doubt. Rabren's bill as amended averred that the Christians owned an undetermined interest and prayed that the court determine Christians' interest in said land and abate the purchase price commensurate therewith. Consequently, the trial court did err in ordering the Christians to convey their interest without first determining the extent of that interest. The trial court should have made a determination as to the extent of appellant's interest in the 127-acre tract described in the option agreement. Having so done, the court should have ordered an abatement of the purchase price if appropriate.
On the second point raised in this assignment, we agree with the appellants that the trial court erred in ordering them to convey any "after acquired" interest in subject property to the complainant. The record does not reveal the trial court's reason *464 or authority for such order. We can find no basis in law or fact to support this aspect of the trial court's decree. The only interest the Christians may be required to convey is that which they owned on March 25, 1969, the day the option contract was executed, plus any interest which they may have acquired after March 25, 1969, but prior to the date of the final determination of this cause on rehearing. Enslen v. Allen, 160 Ala. 529, 49 So. 430; Kent v. Dean, 128 Ala. 600, 30 So. 543; 5A A. Corbin, Corbin on Contracts § 1170. See also Pickard v. Osburn, 261 Ala. 206, 73 So. 2d 542.
Appellants' third assignment of error contends that the trial court erred in ordering the specific performance of an instrument unenforceable on its face. Appellants argue in brief in support of this assignment that there was never a meeting of minds, ambiguity in the consideration and purchase price, and that the dower interest of the widow is not provided for in the option agreement. We agree that the option is not an example of expert draftsmanship, but find that it is sufficiently certain in its terms to be enforceable.
The testimony revealed, and the trier of fact evidently concluded, that the Schlimers' names had been crossed out in the acknowledgement section of the option prior to its execution by the Christians. Where tenants in common start out to convey all their interests together and the final effect of their action is to leave one or more not bound, it does not follow that the transaction is still in fieri and not binding on the others. Pearce v. Third Ave. Improvement Co., 221 Ala. 209, 128 So. 396.
In the Pearce case, supra, this court cited with favor the Texas case of Ward v. Walker (Tex.Civ.App.), 159 S.W. 320, which was said to be typical of cases holding contracts by tenants in common, not enforceable as to all interests, the proper subject of specific performance as to the interest of those who have properly executed the contract at the option of the vendee and adopting the following language from that decision:
We think the rule adopted by the Pearce case, supra, as set out above is controlling in the instant case. Specific performance pro tanto at the election of the vendee where full performance cannot be had has been a recognized remedy in equity from the earliest history of this jurisdiction. Saliba v. Brackin, 260 Ala. 103, 69 So. 2d 267; Milton Realty Co. v. Wilson, 214 Ala. 143, 107 So. 92; McCreary v. Stallworth, 212 Ala. 238, 102 So. 52; Bass v. Gilliland's Heirs, 5 Ala. 761.
Appellants insist the option is unenforceable because the Christians signed on a condition (the Schlimers would sign and a trust would be established for the mother) that was never met. If this were the case, the complainant would not be entitled to specific performance for the reason that no binding contract can come into being until there is a meeting of the minds. Jones v. McGivern, 274 Ala. 232, 147 So. 2d 813; Obermark v. Clark, 216 Ala. 564, 114 So. 135, 55 A.L.R. 1153. However, the evidence at trial was in conflict on this point. Consequently, an issue of fact was presented, and the trial court found that such condition was not involved. We hold, therefore, that the option contract, which is the subject of this cause, was enforceable by the complainant at least to the extent the appellants are able to convey.
We pretermit any further consideration of appellants' fourth assignment of error *465 since it appears that this assignment raises essentially the same point already disposed of under our treatment of assignment of error number two, which necessitates a reversal in part of the decree.
In summary, we hold that the trial court's decree must be set aside as to that aspect discussed under assignment of error number two, and the cause remanded for a determination of the extent of the interests of respondents in the subject property with abatement of the purchase price commensurate with such determination.
Affirmed in part, reversed in part and remanded.
HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX and McCALL, JJ., concur.
COLEMAN and FAULKNER, JJ., dissent.
COLEMAN, Justice (dissenting):
The respondents, Theresa R. Christian and her husband, J. M. Christian, appeal from a decree granting to the vendee specific performance of an alleged contract for the sale of land.
The averments of complainant's amended bill of complaint are to the following effect:
The respondents executed an option to sell certain land. A copy of the option is made a part of the bill as Exhibit A thereto. As here pertinent, Exhibit A recites:
Exhibit A shows that Wilbur Franklin, Maggie M. Franklin, Theresa R. Christian, and J. M. Christian signed the option and acknowledged execution thereof before a Notary Public.
Exhibit A shows that Athy Schlimer and Robert Schlimer did not sign the option. The exhibit shows that their names were typed in the body of the certificate of acknowledgment together with the names of the other four sellers, but a line was drawn through the names of Athy Schlimer and Robert Schlimer so that the certificate does not appear to indicate that the Schlimers acknowledged that they executed the option.
As amended, the bill recites:
The option is dated March 25, 1969. Complainant avers that he has notified respondents of his decision to exercise the option on March 17, 1970, "and several times thereto" and has demanded that respondents execute a deed as required by the option; "that he has tendered the money to the Respondents," and they have refused to comply with the terms of the option.
Complainant avers that he is now ready to comply with the terms of the option and offers to do equity. He prays that the court "enter an order directing said Respondents to comply with the terms of said option and execute a warranty deed to your Complainant conveying said real estate."
The amended bill includes the following prayer:
The court overruled respondents' demurrer to the amended bill, and this ruling is assigned as error.
Respondents filed answer to the amended bill. In their answer respondents admitted that they owned a one-third interest in the land.
After a hearing ore tenus on November 19, 1971, the court rendered a final decree filed January 28, 1972. The court found that respondents, for a consideration, executed Exhibit A ".... whereby the respondents agreed to sell and convey to the complainant the lands made the subject of the suit ...."
The court further found that within the terms of the option, complainant notified respondents of his decision to exercise the option, tendered to respondents "the sum required for the exercise thereof," and demanded that respondents execute a deed as required by the option. The court further found that respondents, without just cause, refused "to execute conveyance of their interest within thirty days" after the option was exercised by complainant.
The court decreed that respondents specifically perform the option within twenty days by executing and delivering to the register, for delivery to complainant, a warranty deed conveying their undivided one-third interest in the land to complainant.
The court further decreed that should respondents fail to comply with the decree within the time allowed, the complainant is the rightful owner of all the interest of respondents in the land, and the register is directed to execute and deliver to complainant a deed conveying said property to complainant.
By decree filed February 16, 1972, the court, ex mero motu, amended the decree by substituting "30 days" for "20 days" wherever the same appear in the original decree.
On February 25, 1972, respondents filed application for rehearing, and the court suspended the decree pending the court's ruling on the application for rehearing.
After a hearing, the court, on April 11, 1972, rendered a decree wherein the court expressed the opinion that the decrees of January 28 and February 16 should be amended to require respondents to deliver to complainant a warranty deed conveying ".... their interest in the property hereinafter described and as described in the original decree within twenty days from the date of this amended decree and failing therein that the Register...." should present to the Covington County Bank a certified check which was introduced in the cause, payable to respondents, and endorse the same, and upon receipt of $3,066.67 execute a register's deed conveying to complainant all interest of respondents in the land ".... or any interest which they might hereafter acquire in said lands." *467 The court then decreed as follows:
At the first hearing on November 19, 1971, three witnesses testified. Their testimony appears on sixty-one pages of the transcript. Eleven exhibits were received in evidence.
Respondents assign errors as follows:
By seeking specific performance of a contract, the complainant assumes the burden of averring and proving that the respondents entered into a valid contract for the sale of certain land to the complainant, the terms thereof, and performance by the complainant on his part, or a sufficient excuse for nonperformance, accompanied with averments showing he is able and willing to perform, and offers so to do. Chandler v. Bodeker, 219 Ala. 357, 122 So. 435.
The question here is whether the averments of the bill show that the respondents entered into a contract which bound them to convey separately the land in suit or any part of it. The respondents assign as error the overruling of a demurrer to the complaint as amended, one of the grounds of which was that Exhibit "A" to the bill of complaint shows on its face that it is unenforceable. Not only is it a well-established rule of pleading that in a bill for specific performance great accuracy of averment is required, Tillman v. Calhoun Lumber Co., 245 Ala. 595, 18 So. 2d 561; but, also when tested by demurrer, the averments of a bill for specific performance must be construed most strongly *468 against the complainant. Tillman, supra; Williams v. Owens, 273 Ala. 625, 143 So. 2d 633. This court, in Jackson Realty Co., Inc. v. Yeatman, 219 Ala. 3, 121 So. 415, approved in AGM Drug Co. of Alabama v. Dobbs, 277 Ala. 493, 172 So. 2d 379, stated:
The terms of the option contract, Exhibit "A," are that six persons named therein agree to sell and convey to the complainant, for the consideration stated, the land in suit. The option provides that the complainant may accept the option within twelve months from its date, and that: "Conveyance shall be made within thirty days after such acceptance by a warranty deed conveying a clear title free from all encumbrances." There is nothing apparent in the option whereby the makers, or any of them, agreed to convey anything less than the entire title to all the land.
In the original bill, the complainant prays for a decree "directing said Respondents to comply with the terms of said option and execute a warranty deed to your Complainant conveying said real estate."
By amendment to the bill, the complainant avers that the respondents "own an undetermined interest in said property" and prays that the court abate the purchase price to be commensurate with the interest of the respondents.
There is no prayer that the respondents convey their interest, determined or undetermined. The option itself, by naming six persons to sign as makers, gives notice that none of the six makers own the entire interest in the land, and, necessarily, it follows that each maker owns an interest less than the whole. Where a contract is set out in haec verba, and is uncertain and ambiguous, the pleading must put some definite construction on it by averment. 81 C.J.S. Specific Performance § 128, page 687. The option, Exhibit "A," shows on its face that the parties contemplated that all six makers named in the option would sign it. It does not show that the respondents agreed to convey their interest separately from the other contemplated signers.
The burden is on the complainant to aver facts, not evidence, to show that the respondents entered into a contract to convey separately the land in suit, or any part of it. The complainant failed to carry this burden.
On an appeal from decree denying specific performance of a contract to sell land, this court said:
"The decree is in accord with this rule and is affirmed." Jones v. McGivern, 274 Ala. 232, 234, 235, 147 So. 2d 813, 815.
For the reasons stated above, I am of opinion that the decree appealed from should be reversed and the cause remanded.
FAULKNER, J., concurs. | February 8, 1973 |
968c8041-a412-4f7a-9e60-68e0a7269382 | Hubbard v. State | 274 So. 2d 301 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 301 (1973)
Wade HUBBARD
v.
STATE.
6 Div. 673.
Supreme Court of Alabama.
March 8, 1973.
ON REMAND FROM THE UNITED STATES SUPREME COURT
HARWOOD, Justice.
Wade Hubbard was adjudged guilty of murder in the first degree and his punishment fixed at death. This judgment was affirmed by this court. Hubbard v. State, 283 Ala. 183, 215 So. 2d 261.
Subsequently, Hubbard brought a petition for a writ of error coram nobis, the basis of his petition being that several jurors were wrongfully excused from the venire in violation of the doctrine enunciated by the Supreme Court of the United States in the case of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776. The petition for writ of error coram nobis was denied by the Circuit Court of Jefferson County, Alabama, which order of denial was appealed to this court.
*302 On review of this order of denial, this court found that the record showed that the lower court's examination of all of the excused jurors made in the coram nobis proceedings, relative to their reservations concerning capital punishment, was "probing" and of "an exacting nature," and fully sufficient to show that the jurors were properly excused under the standard laid down in Witherspoon, supra. See Hubbard v. State, 285 Ala. 212, 231 So. 2d 86.
Both the judgment in the main trial, and the order denying the writ of error coram nobis, were appealed to the Supreme Court of the United States.
That court, 408 U.S. 934, 92 S. Ct. 2851, 33 L. Ed. 2d 747 reversed that part of the judgment entered in the murder case which imposed a sentence of death and remanded the cause to this court for further proceedings. On the same day, the judgment of this court affirming the order in the coram nobis proceedings was reversed and remanded to this court for further proceedings, 408 U.S. 936, 92 S. Ct. 2859, 33 L. Ed. 2d 752.
It is readily apparent that the coram nobis proceeding was collateral to the main case, i. e., the murder case, in which the death sentence was imposed.
From our re-examination of the coram nobis proceeding, it appears that the denial of the petition for a writ of error coram nobis by the lower court was correct and well within the standards pronounced in Witherspoon, supra. Our affirmance of the order of the circuit court under these circumstances would also appear to be correct.
The order of reversal of this case by the Supreme Court of the United States was by a memorandum opinion. We assume that the basis of the reversal and remandment of the judgment in this coram nobis case was because it might be thought that the judgment in the coram nobis proceeding could in some manner impinge upon or affect the judgment of the Supreme Court of the United States which reversed the sentence portion of the judgment in the murder case.
Whether this assumption be right or wrong, this court has now vacated and set aside that part of the judgment imposing a sentence of death rendered and entered in the murder case, and in lieu thereof has adjudged that Wade Hubbard be imprisoned in the state penitentiary for the term of his natural life.
In the light of the above action by this court, it would appear that this entire coram nobis proceedings is now moot, it being collateral to the murder case.
It seeks to question the validity of the death sentence imposed in the murder case on the grounds that certain jurors were allegedly improperly excused upon challenge for cause by the state because of their scruples against imposing capital punishment, contrary to the doctrine enunciated in Witherspoon, supra. The death sentence having now been reduced to life imprisonment, this matter is no longer within the influence of Witherspoon, supra. See Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797.
This being so, this appeal is due to be dismissed, and it is so ordered.
Appeal dismissed.
All Justices concur. | March 8, 1973 |
b7cac308-1393-45aa-b59e-aafd51283319 | In RE MORGAN v. State | 272 So. 2d 261 | N/A | Alabama | Alabama Supreme Court | 272 So. 2d 261 (1973)
In re Reno MORGAN
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 213.
Supreme Court of Alabama.
January 18, 1973.
William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for the State.
No brief for the respondent.
JONES, 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 Morgan v. State, 49 Ala.App., 272 So. 2d 256.
Writ denied.
COLEMAN, BLOODWORTH, McCALL and FAULKNER, JJ., concur. | January 18, 1973 |
0615fb17-bd18-47f9-89f7-d5e4cbfdc386 | Hawkins v. First Federal Savings and Loan Ass'n | 280 So. 2d 93 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 93 (1973)
Frank L. HAWKINS
v.
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION.
SC 55.
Supreme Court of Alabama.
February 22, 1973.
Holberg & Tully and Ralph G. Holberg, III, Mobile, for appellant.
David R. Coley, III, Mobile, for appellee.
FAULKNER, Justice.
Frank Hawkins decided to build a Holiday Inn on property bounded by Church, Monroe, Jackson, and Joachim Streets in a downtown urban renewal area of Mobile. He contracted with First Federal Savings and Loan Association for a loan of $500,000, subject to several conditions, including the following:
In accordance with this provision, Hawkins paid $25,000 to First Federal. It is this sum which is now the subject of the litigation.
According to Hawkins' testimony, the City of Mobile, at the direction of the State Highway Department, refused to issue him a building permit because of the pending condemnation of all or part of his land. Later, when it became clear that only a small part of the tract was being taken, Hawkins received approval for a redesigned building, and construction commenced. However, in the meantime, the deadline embodied in the contract, which had already been extended once by agreement of the parties, expired. First Federal insisted that Hawkins had forfeited the $25,000 "stand by" fee by failing to close the loan within the agreed period. Hawkins brought an action to recover the money.
The cause was tried to a jury in the Circuit Court of Mobile County. At the close of the evidence plaintiff requested seventeen charges, of which sixteen were refused. A verdict was returned in favor of the defendant, First Federal. Plaintiff Hawkins now brings this appeal, arguing that denial of four of his requested charges, and his motion for a new trial, constituted reversible error.
All four of the charges in question relate to the issue of whether alleged impossibility of performance should excuse appellant Hawkins from his contractual obligations. All four were refused by the trial judge:
Charge No. 13 is improperly grouped with the others on appeal because it refers to impossibility caused by "Defendant's actions", not by governmental agencies. It is substantially the same as Plaintiff's Charge No. 11, relating to alleged alteration of contract terms by the defendant, which was given by the trial judge. The judge is empowered by statute to refuse redundant charges if the same rule of law was substantially and fairly given in another charge. Title 7, § 273, Code of Alabama 1940 (Recompiled 1958).
*95 Whether Charges No's. 12, 14, and 15 are good depends fundamentally upon the extent to which impossibility, arising without fault of the obligee, is recognized by our law as a defense to breach of contract by the obligor. There appears to be a major division among the authorities on the issue.
On the one hand, there is the view requiring strict adherence to the terms of a contract, regardless of any circumstances arising later. This rationale was classically expressed in Paradine v. Jane, 82 Eng. Rep. 897 (K.B.1647):
In contrast, there is the view expressed by the Restatement of Contracts (1932), § 457:
The difference between the views is aptly put by Williston:
In Alabama, it is generally the strict rule that has been upheld by our decisions. As this Court stated in Lee v. Cochran, 157 Ala. 311, 313, 47 So. 581, 582 (1908):
The same strict or literal view has been upheld in numerous other cases. Stone v. Dennis, 3 Port. 231 (1936); M'Gehee v. Hill, 4 Port. 170, 29 Am.Dec. 277 (1836); Marx v. Kilby Locomotive & Machine Works, 162 Ala. 295, 50 So. 136 (1909); Capital Fertilizer Co. v. Ashcraft-Wilkinson Co., 202 Ala. 92, 79 So. 484 (1918); Otinger v. Water Works and Sanitary Sewer Board, 278 Ala. 213, 177 So. 2d 320 (1965). See Case Note, "Impossibility of Performance in Action for Breach of Contract", 15 Ala.L.Rev. 582 (1963). The Fifth Circuit has correctly interpreted our law in this area in City of Albertville, Ala. v. United States Fidelity & Guaranty Company, 272 F.2d 594 (1959).
However, this court has recognized an exception to the strict rule. In the words *96 of Greil Brothers Co. v. Mabson, 179 Ala. 444, 450, 60 So. 876, 878 (1912):
It is indeed with that branch of the impossibility problem relating to governmental action that we are now specifically concerned. The answer to the respective contentions so ably propounded by both counsel in this case is to be found within the scope of the doctrine of Greil Brothers Co. v. Mabson, supra.
In Greil, the plaintiff leased premises in the City of Montgomery to the defendant, "`for occupation as a bar, and not otherwise.'" Thereafter, on November 23, 1907, the General Assembly of Alabama enacted a prohibition law, making it unlawful to sell liquor. The defendant abandoned the premises, and refused to pay rent. The plaintiff brought an action to collect on rent notes, and had judgment.
On appeal, this court reversed, holding that the bar operator was excused from performance of his contract because such performance had been prohibited by the Legislature.
Without more, this holding would support the contentions of the appellant. However, the court discussed two additional cases, Burgett v. Loeb, 43 Ind.App. 657, 88 N.E. 346 (1909), and Houston Ice Co. v. Keenan, 99 Tex. 79, 88 S.W. 197 (1905). In Burgett, denial of a liquor license, which made it impossible for the defendant to sell liquor, was held no excuse for breaching a lease for a place to sell it. In Keenan, prohibition by local option election did not excuse performance by a lessee. This court cited both cases with approval. Commenting on Burgett, we said:
Similarly, Keenan, supra, was approved with the following comment:
The distinction clearly established is between illegality created by change in the law subsequent to the contract, which serves as an excuse, and illegality due to an unfavorable exercise of discretion by governmental officials acting under existing law, which is no excuse.
The record in this case does not disclose that the Building Commissioner *97 was acting under any authority other than that vested in him by the Mobile Building Code, or that he did not have the authority to deny a permit as of the date of formation of the contract. Therefore, according to the doctrine of Greil Brothers v. Mabson, supra, the parties could have foreseen the possibility that a building permit would be denied and provided for that contingency in the terms of their contract.
Many cases in sister jurisdictions have endorsed the principle as stated by Corbin:
Among these cases are Security Sewage Equip. Co. v. McFerren, 14 Ohio St.2d 251, 237 N.E.2d 898 (1968); Smith v. Dixon, 238 Ark. 1018, 386 S.W.2d 244 (1965); Fischler v. Nicklin, 51 Wash. 2d 518, 319 P.2d 1098 (1958); Hein v. Fox, 126 Mont. 514, 254 P.2d 1076 (1953); Shore Inv. Co. v. Hotel Trinidad, 158 Fla. 682, 29 So. 2d 696 (1947); Burgett v. Loeb, supra.
In this view of the case it is not necessary to consider the technical defects assertedly present in the charges whose substantive merits are discussed in this opinion.
We hold that the charges requested by appellant were properly refused by the trial court. As a party binds himself, so shall he be bound.
The judgment of the trial court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | February 22, 1973 |
b0f42566-bf86-4acf-a020-5b3b84c865de | Fowler v. Fayco, Inc. | 275 So. 2d 665 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 665 (1973)
Lucille FOWLER
v.
FAYCO, INC., a corporation, et al.
SC 72.
Supreme Court of Alabama.
February 22, 1973.
Rehearing Denied April 19, 1973.
*666 Fred Blanton, Birmingham, for appellant.
Holder & Moore, Fayette, for appellees.
HARWOOD, Justice.
This is an appeal from an order and decree denying injunctive relief and damages because of an alleged private nuisance.
In substance the bill averred that the complainant, Lucille Fowler, owned and occupied a home on property in Fayette County, Alabama; that the respondent Fayco, Inc., leased property across the road from complainant's property on which it operated an asphalt plant, which plant from the commencement of its operation emitted "vile and noxious fumes, odors and polluting matter into the air resulting in depreciation to complainant's property, and injury to her health."
The bill prayed for an injunction prohibiting the continued operation of the plant, and for damages to the property, and for injuries to the complainant's health.
The respondent, Fayco, Inc., filed an answer to the bill in which it denied that its asphalt plant has emitted vile and noxious fumes or pollutants which caused depreciation in the value of complainant's property, or which would affect an ordinary, reasonable person in average mental and physical condition. Fayco further denied that the operation of the plant would do irreparable damage to the complainant or to her property, or that the plant was negligently operated; and further alleged that it had expended large sums of money and employed many persons in and about the operation of its plant.
After a hearing the Chancellor, after making an extensive finding of facts, entered a decree denying all relief sought under the bill. From this decree the complainant perfected this appeal.
The evidence introduced below tends to show that the complainant and her husband owned a half-acre tract on the south side of Alabama Highway 18, some three or four miles west of Fayette, Alabama. They acquired this tract in 1955.
Across the highway on a leased tract of land a sand and gravel operation had been conducted for some time. The Luxapalila River constitutes the western boundary of both tracts.
In 1961, the complainant and her husband, now deceased constructed a combination home and store on their tract, as well as a barbeque stand or restaurant. There
*667 was also a garage with tin sides and a pump house on the premises.
Fayco, Inc., or its predecessors, at one time operated an asphalt plant about a half mile distant which processed asphalt mix used in surfacing roads. The sand and gravel company was merged with Fayco, and thereafter in 1966, Fayco moved its asphalt plant onto the site across the road from complainant's premises.
The complainant testified that the operation of this asphalt plant caused the emission of thick black smoke and fumes all day. A greasy black film coated her house both inside and out, even getting into dresser drawers. Her shrubbery sickened. Upon touch, this film felt as though it had sand in it. There was an odor of asphalt. Within a month the complainant became sick from inhalation of the asphalt odor or fumes and moved to her mother's home about a quarter of a mile away. Prior to the operation of the asphalt plant, the complainant testified, she had never suffered from any allergic condition.
The complainant testified that when she left her home she let some people stay there to take care of the place and keep things from being stolen. It was developed on cross-examination, however, that the building comprising the residence and store had been rented almost continuously at a rental of $40.00 per month since the complainant moved out.
Complainant rented the barbecue stand to V. L. Hubbard but he closed it after about a year and a half and she has not made any effort to rent this building since then.
The complainant testified that she estimated the value of her premises to be $16,000.00 prior to the operation of the asphalt plant, and the value now was between $10,000.00 and $12,000.00. However, cross-examination of the complainant showed that the value of the premises prior to the operation of the plant was based on what some unnamed real estate dealer had told her.
Her local physician referred her to Dr. Robert H. Donald, a physician in Tuscaloosa, an ear, nose, and throat specialist, and also a specialist in allergic diseases.
By deposition Dr. Donald testified that he first saw the complainant in May 1967. His first examination revealed that the complainant's head and chest were congested, with some difficulty in breathing, which suggested an allergic condition. From complainant's history he surmised "that this was caused probably from, if I remember correctly, they were laying some asphalt in front of her house, or doing some kind of road work in front of her house." A coal tar distillate, along with dust, could cause this reaction.
Dr. Donald made skin patch tests with various substances the results of which showed a positive reaction to dog hair, cat hair, histamine, tobacco smoke, dust, and some grasses. No scratch test could be made to determine complainant's reaction to fumes from the asphalt. He found the complainant very sensitive to allergies. He was able to desensitize her to those substances on which he could test. However, there is no way to desensitize a patient who is allergic to fumes, and by a process of elimination, he concluded the complainant was allergic to the fumes from asphalt. Since she improved when she left her home, this supported his conclusions as to the asphalt fumes. The chemical fumes to which the complainant had been exposed definitely aggravated her condition.
Jerry Griffin lives about one fourth of a mile from the asphalt plant. For the complainant, he testified that he had worked at the asphalt plant for awhile, and the fumes did not make him sick. The smoke emitted by the plant was bad at times, though "the new sprinkler system has helped a lot but it has not stopped it."
Barbara Ann Hubbard and her husband moved to complainant's premises in July 1967. Mrs. Hubbard testified that smoke from the asphalt plant caused a greasy *668 film to adhere to the house and to everything in the house. Cleaning was useless, as the film would be back the next time the plant operated, which was virtually every week. They lived at the premises until May 1967. It appears, however, that as the Hubbard's moved out, her sister-in-law, Frances Hubbert, and her husband moved in. Frances Hubbert's testimony is to the same effect as Mrs. Hubbard's as to the effect of the smoke from the asphalt plant. At one time the Hubberts moved out for a short while to find a larger house, but again returned to complainant's premises and still reside there as tenants.
The respondent's evidence shows that for some years prior to complainant's occupation of her land, the Fayette Concrete Company operated a sand and gravel company on the site of the present asphalt plant. This company was a predecessor of Fayco, and its operation was to sell sand to the Independent Construction Company which operated an asphalt plant some three-fourths of a mile from the sand and gravel operation. Independent Construction Company was merged into Fayco. Before the merger, Independent Construction and Fayco were separate corporations.
When operated by Independent Construction Company, the asphalt plant was a Barber-Greene type. After acquisition of Independent Construction by Fayco, the asphalt plant was moved to its present site.
In processing the asphalt mixture used in road building, moist sand and gravel is hauled from the river. This material is fed into a dryer by a conveyor. A flame is then blown into the dryer by pumps which make a roar or hissing sound when operated.
An elevator carries the dried sand to a mixer where the sand is weighed and then mixed with raw asphalt. This mixing process requires 45 seconds. This finished mix, which has a temperature of 300 degrees, is then dumped in trucks and hauled to the highway construction site. The raw asphalt is stored in tanks. Throughout the process the materials are conveyed as to be unexposed.
It appears that when the Barber-Greene plant began operation on the new site in 1966, there was some complaint about the smoke emitted. Fayco had a washer designed and installed. By this devise the smoke from the dryer was pumped into a large tank where many nozzles sprayed water into the smoke to remove foreign matter, resulting in only clean air exiting from the washer tank.
According to the president, Fayco was the first asphalt plant to install such a device, though all asphalt plants now have such devices.
According to Fayco's plant foreman, this washer did "a good job," and he did not think any particles were emitted after its installation.
In 1967, the Barber-Greene plant was replaced by a new Simplicity plant and washer. According to respondent's evidence, this new plant is the best and most modern available. Its washer is larger and has more water spraying power. The respondent's foreman testified that the only emission from the new plant is steam.
Some 12 to 17 trucks are loaded daily at the plant. The area around the plant was paved in 1970, and a jeep sweeper is used to sweep the area and keep it clean.
Black smoke emits from the washer only if it breaks down. This has not happened often, and when it has occurred, the plant is closed down until repairs are made.
Several employees of Fayco testified that while there was an odor of asphalt around the plant, they had suffered no ill effects therefrom. They further testified that they had not noticed any black smoke, or particles, falling in the area and the only emission from the plant resembled steam which just blew away.
The president of Fayco testified that in its operation, local labor, local trucks were used, and raw materials were purchased *669 locally, and since May of 1966 through January 1971, the company has expended some $1,430,712.46 in this connection.
The evidence shows that subsequent to the time the asphalt plant began operation, Highway 18 was made into a four-lane highway, the new lane being constructed on complainant's side of the highway. Jessie Swanson, an engineer with the State Highway Department, testified that the front of complainant's house extends 1½ feet onto the right-of-way.
At the conclusion of the hearing, counsel for the respondent moved that the court view the plant.
Counsel for complainant objected, stating that the plant was not in operation. In reply to this objection, the court stated:
Section 1081, Title 7, Code of Alabama 1940, defines a nuisance as follows:
In Section 1084, Title 7, Code, it is declared, among other things that:
Fayco's business was lawful, and was not a nuisance per se. However, a lawful business may become a nuisance when improperly maintained. Nevins v. McGavock, 214 Ala. 93, 106 So. 597.
Since the rendering of the opinion in the oft-cited case of Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192, this court has given recognition to the comparative injury rule in considering whether a lawful business should be enjoined as a nuisance. As stated in Clifton Iron Co., supra, "the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction." This pertinent principle is but a recognition of the discretion resting in a court of equity in granting or refusing injunctive relief. Pritchett v. Wade, 261 Ala. 156, 73 So. 2d 533. To this same effect see also Martin Bldg. Co. v. Imperial Laundry Co., 220 Ala. 90, 124 So. 82; Brown v. Allied Steel Products Corp., 273 Ala. 184, 136 So. 2d 923.
A pertinent observation as to the principles governing in a case such as the present, i. e., the granting or refusing of relief, is to be found in Rouse v. Martin, 75 Ala. 510, as follows:
In the opening paragraph of its decree, the court stated that the case was submitted for final decree "upon the bill of complaint as last amended, respondents' amended answer and testimony and exhibits as noted by the Register in the note of testimony; and the court having visited the plant and observed its operation." The court then made a finding of facts, which included among other findings, the following: (1) that a sand and gravel business had operated on the tract on which the respondent placed the asphalt plant for years prior to the acquisition of the complainant to the tract of land for which complainant's buildings were erected, (2) that the front wall of complainant's house is located over on the right-of-way of Highway 18, a four lane highway on which there is much traffic with its attending noise and *670 emissions, (3) that the asphalt plant is not negligently or improperly operated, (4) that the odors or smoke emitted from the plant are not excessive or unusual and are such as would not affect an ordinary reasonable person, (5) that the complainant is highly sensitive to many things, including, but not limited to asphalt odors, and in this sense should not be considered an ordinary person, (6) that it would do irreparable injury to the respondent to enjoin the operation of the plant, and weighing any injury that has or may accrue to the respondent, its employees and suppliers, and persons who desire to purchase asphalt, the injunction should not be granted, and (7) the complainant is not entitled to the relief prayed for in her bill.
The Chancellor then decreed that the relief prayed for should not be granted.
It is apparent that the prayer for an injunction was denied not only on the basis of comparative injury, but also on the basis that the Chancellor concluded after hearing all the evidence, and visiting the plant, that the operation of the plant did not constitute a nuisance.
As usual, we are here presented with a finding of fact made by a trier of fact upon evidence in sharp contradiction. The presumption of correctness to be accorded such finding has been so often repeated as to dispense with citation of authority. This presumption is strengthened where the trier of facts visits the premises involved before making findings of fact. Welch v. Lee, 265 Ala. 594, 93 So. 2d 427; Barnett v. Millis, 286 Ala. 681, 246 So. 2d 78. This for the reason that this court under such circumstances does not have before it all the evidence that may have influenced the lower court in its conclusions. Fuller v. Blackwell, 246 Ala. 476, 21 So. 2d 617.
We do observe that it is the better practice for a trial judge, sitting as a trier of fact, in exercising his discretion to visit the locus in quo, to do so in the presence of the parties, or with notice and opportunity for them to be present. However, if a trial judge sitting as a trier of fact, visits the locus in quo without notice to the parties, such action does not afford a ground for a reversal. In such case, this court will assume that the judge observed all the safeguards he would throw about a jury in making such inspection. Adalex Construction Co. v. Atkins, 214 Ala. 53, 106 So. 338; Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So. 2d 770.
In his brief counsel for complainant states:
The fallacy of this argument is that after a full hearing the Chancellor concluded that under the evidence there was no basis for awarding equitable relief to the complainant.
In Yauger v. Taylor, 218 Ala. 235, 118 So. 271, the principle governing in such circumstance is set forth as follows:
After a study of this record, it is our conclusion that there was sufficient evidence, if believed to the required degree, to support the decree rendered. Under the rules governing our review, we find no basis that would justify our saying *671 that the Chancellor, who saw the witnesses and heard them testify, and who viewed the premises, was palpably wrong in his conclusions.
Affirmed.
MERRILL, MADDOX, and FAULKNER, JJ., concur.
HEFLIN, C. J., concurs specially.
HEFLIN, Chief Justice (concurring specially):
I concur with the holding reached by my colleagues but feel it is necessary to add one final comment, with which all participating justices are in accord, lest a portion of the court's opinion be misinterpreted.
The latter part of the opinion contains a quote from Yauger v. Taylor, 218 Ala. 235, 118 So. 271 (1928) to the effect that equity will not grant legal relief in the absence of a decree awarding some form of equitable relief. This is mentioned in regard to the appellant-complainant's claim for money damages, and I do not take issue with this statement of law; however, I think it is unnecessary to the holding and lends itself to misinterpretation.
The affirming opinion of this court in the case under review interprets the lower court's final decree as finding that there was no nuisance. Thus the appellant-complainant would be entitled to no damages either at law or in equity. Therefore, the quote from Yauger v. Taylor, supra, has no application to this case.
Assuming, on the other hand, that there was a nuisance but that a proper balancing of the equities dictated that it not be abated, then the appellant-complainant would, even in the absence of an injunction-granting decree, have an equitable cause of action for the alleged permanent and constantly recurring injury to his land, as the legal remedies for this type of futuristic injury do not afford adequate or complete relief. McCary v. McLendon, 195 Ala. 497, 70 So. 715 (1915); City of Clanton v. Johnson, 245 Ala. 470, 17 So. 2d 669 (1944). Of course, the latter situation, i. e., unabateable nuisance, is not applicable since the lower court's decree has been interpreted as finding that there was no nuisance and, therefore, the equitable remedy for futuristic money damages was not available to the appellant-complainant. However, the rule reaffirmed in the court's opinion, i. e., equity will not grant legal relief in the absence of a decree awarding some form of equitable relief, should not be understood as precluding an action in equity for futuristic damages under the conditions mentioned above, even in the absence of a decree awarding an injunction, as such damages themselves constitute equitable relief. | February 22, 1973 |
c895adaf-fdce-4c12-b12c-e664a8074729 | Sasser v. Dixon | 273 So. 2d 182 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 182 (1973)
J. T. SASSER
v.
Solon DIXON.
SC 134.
Supreme Court of Alabama.
February 1, 1973.
Rehearing Denied March 1, 1973.
Tipler, Fuller & Barnes, Andalusia, for appellant.
Powell & Sikes, Andalusia, for appellee.
MERRILL, Justice.
This appeal is from a judgment granting defendant's motion for a new trial, following a verdict and judgment thereon in favor of the plaintiff.
The main question in the case is whether the allegations and the proof supported an action of trespass or trespass on the case.
The trial court granted the motion for a new trial solely on the ground that it became convinced that the one-year statute of limitations, Tit. 7, § 26, applied instead of the six-year statute, Tit. 7, § 21.
It is settled in our law that an action of trespass on the case is governed by the statute of limitations of one year, while if the allegation and proof show trespass the six-year statute applies. C. O. Osborn Contracting Co. v. Alabama Gas Corp., 273 *183 Ala. 6, 135 So. 2d 166; City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So. 2d 682; Tit. 7, §§ 21 and 26.
The allegations and the proof showed that the cause of action arose on July 1, 1969, and the original complaint was filed on February 22, 1971. The defendant pleaded the statute of limitations of one year.
If the allegations and proof show trespass, the trial court erred, if trespass on the case is shown, the judgment granting the motion for a new trial should be affirmed. The single assignment of error is that the trial court erred in granting the motion for a new trial.
The case was originally filed against the defendant, the employer Dixon Lumber Company, Inc. and one Jack McGowin, but the company and McGowin were later stricken as defendants.
The action was brought against the defendant Dixon as a third-party tort feasor pursuant to Tit. 26, § 312, Code 1940, as amended. The single count (Two-A) charged that on July 1, 1969, the plaintiff was employed by Dixon Lumber Co., Inc., in Andalusia, and while he was in the process of inspecting in the dry kiln, he was injured; that for several months prior thereto, the defendant, Solon Dixon, was also an employee and was charged with the responsibility by the company of the overall supervision and inspection of the works, ways and machinery and safety precautions involved in the dry kiln; that the defendant Dixon knew that the fans in the dry kiln system at said plant were in a dangerous and defective condition in that said fans were totally unguarded, leaving them in a dangerously exposed condition endangering the safety of those working in the area; that the defendant had on numerous occasions prior to the injury of the plaintiff been apprised that the fans were unguarded and posed a dangerous condition; and that despite said knowledge on the part of the defendant and despite warnings to him of the danger to human life and limb resulting from said dangerous condition, he wantonly injured the plaintiff by wantonly failing to employ proper, adequate or sufficient safety measures or guards to prevent the fans from being exposed in said dangerous condition and as a proximate result and consequence of the wanton conduct of the defendant, the plaintiff was injured.
There was evidence to support the allegations including the fact that the dry kiln contained eight large uncovered fans in a loft with a two-foot catwalk passage; that the fans ran twenty-four hours a day, seven days a week; that the five-foot blades extended outside the rims encasing them; that one of the fans was and had been in poor alignment; that there was no light in the loft and the temperature was high; that men had to work in the loft from time to time to check and maintain the equipment in order to keep the mill in operation; that the defendant had often given instructions to fix and maintain the fans; that the plaintiff was checking the fans when injured; that the defendant knew others had been injured by the fan blades; and that several times the plaintiff and other employees had called the defendant's attention to the dangerous situation in the kiln created by the unguarded fan blades.
The plaintiff argues that the complaint and the proof show trespassthe defendant argues that it is trespass on the case and, therefore, barred by the one year statute of limitations.
The true distinction between trespass and trespass on the case lies in the directness or immediate character of the injury. An injury is to be regarded as immediate, and therefore a trespass, only where it is directly occasioned by, and is not merely a consequence resulting from, the act complained of. Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616 [11, 12]; City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So. 2d 682; Leonard v. Nat Harrison Associates (Fla. App.), 137 So. 2d 18. In Crotwell v. Cowan, *184 240 Ala. 119, 198 So. 126, this court said:
A good illustration is given in Shipman, "Handbook of Common-Law Pleading," 3rd Ed., Ch. 4, § 39, p. 86:
In Louisiville & Nashville R. Co. v. Johns, 267 Ala. 261, 101 So. 2d 265, the following is quoted from an unpublished opinion in Sibley v. Odum, 257 Ala. 292, 58 So.2d 896:
One of the most recent cases to consider this question is City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So. 2d 682, where the suit charged that the city's employees, while acting in the line and scope of their employment, willfully or wantonly caused or allowed the city's sewer line to overflow and flood plaintiff's house. The question was whether the action was in trespass or in case. The Court of Civil Appeals held that it was an action in case rather than in trespass and was barred by the one-year statute of limitations. The Court said, inter alia:
In support of his contention that this is an action in trespass, plaintiff cites several cases. We list them and comment briefly why we do not think they are apt authority.
Doucet v. Middleton (5th Cir.), 328 F.2d 97, was an automobile collision case. The force was directly applied by the car driven by the defendant and the evidence supported a wanton count in trespass.
Decatur Petroleum Haulers, Inc. v. Germany, 268 Ala. 211, 105 So. 2d 852, was another collision case where the automobile in which plaintiff was riding collided with defendant's oil truck. Again, plaintiff's injuries resulted from a direct and immediate force being applied to plaintiff by the defendant with direct and immediate resulting injuries to the plaintiff.
Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, was also an automobile collision with a pedestrian.
Central of Georgia R. Co. v. Freeman, 140 Ala. 581, 37 So. 387, contained two counts in trespass charging that the defendant wantonly or intentionally caused or allowed the train to run upon or against plaintiff. Again, it was a direct and immediate force causing direct and immediate injuries.
Newberry v. Atkinson, 184 Ala. 567, 64 So. 46, involved a suit for injuries suffered by plaintiff while alighting from a train. The court stated:
Again, there was a direct and immediate force which caused plaintiff's injury.
Sington v. Birmingham Ry., Light & Power Co., 200 Ala. 282, 76 So. 48, was a case where the court said that the plaintiff, a pedestrian, "was injured in one of two ways, viz. run into by the defendant's street car while he was on the track, or hit by the open doors leading into the front platform or vestibule of the street car." Again, the direct and immediate force caused direct and immediate injuries.
In all of these cases, there was a direct and immediate force with direct and immediate injuries, while here, the injury was alleged to be the result of defendant's wantonly failing to employ proper, adequate or sufficient safety measures or guards to prevent the fans from being exposed and, as a proximate result and consequence of the wanton conduct of defendant, plaintiff was injured.
In the instant case, the injuries were the consequence of an omission of a duty to act.
*186 We hold that the trial court correctly granted the motion for a new trial for the reason stated by that court.
Affirmed.
HEFLIN, C. J., and HARWOOD, MADDOX and McCALL, JJ., concur. | February 1, 1973 |
cbe16d69-fb1a-48ee-ab02-a338dc772c17 | Barnes v. ATLANTIC & PAC. LIFE INS. CO. OF AMER. | 325 So. 2d 143 | N/A | Alabama | Alabama Supreme Court | 325 So. 2d 143 (1975)
Margie C. BARNES
v.
ATLANTIC & PACIFIC LIFE INSURANCE COMPANY OF AMERICA, a corporation.
CER-3.
Supreme Court of Alabama.
December 18, 1975.
*145 E. Ray Large, Birmingham, for plaintiff-appellant.
Ollie L. Blan, Jr., Birmingham, for defendant-appellee.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF ALABAMA, PURSUANT TO ARTICLE 6, SECTION 140(B)(3) OF THE CONSTITUTION OF ALABAMA OF 1901, AS AMENDED
BLOODWORTH, Justice.
The plaintiff, Margie C. Barnes, began this litigation by filing suit in the United States District Court, Northern District of Alabama, Southern Division, seeking to recover, as the beneficiary, the proceeds due under a life insurance policy. The district judge, determining that there was no genuine issue as to any material fact and that the insurer was entitled to judgment as a matter of law, granted the insurer's motion for summary judgment. The plaintiff beneficiary has appealed the district judge's decision to the Court of Appeals for the Fifth Circuit.
Encountering uncertainty in the Alabama law, the Court of Appeals has posed certain certified questions to us under provisions of the Alabama Constitution, Article 6, § 140(b)(3). The questions are:
1. Does the insurer's failure to issue the policy exactly as applied for within 30 days of the date of application preclude coverage from attaching as of the date of application pursuant to Condition 3 of the binding receipt?
2. Was there a waiver of Condition 3 of the binding receipt by the insurer's issuance of a policy after 30 days from the date of application without knowledge that the insured had become uninsurable before the date the policy was prepared and issued?
3. Did the policy clause providing that "this policy will be effective as soon as it has been delivered to the owner and the first premium has been paid during the lifetime and continued insurability of *146 the proposed insured" preclude coverage under the policy from attaching as of November 6, the date in which the insurer placed the policy in the mail to its agent, in view of the fact that the decedent was admitted to a Birmingham hospital on November 4 suffering from a gunshot wound which ultimately resulted in death on November 13 when the evidence shows insurer had no knowledge of the injury to the insured?
4. Does the insurer's statement that the policy was issued on the basis of medical information furnished with the application estop the insurer to deny coverage from the date of the Binding Receipt although the policy was not issued within 30 days even though insurer was unaware at the time it made the statement that the insured had become uninsurable?8
5. Is there an ambiguity between the policy and the Binding Receipt concerning the effective date of the policy? If so, which provision controls under the facts of this case?9
Barnes v. Atlantic & Pacific Life Insurance Co., 514 F.2d 704, 709 (5th Cir.1975).
The facts of this case as set out by the Court of Appeals and as stipulated by counsel, are as follows:
H. M. McClendon, the defendant-appellee's soliciting agent, first called upon Robert O. Barnes and Margie C. Barnes, husband and wife, in August of 1970 soliciting their application for insurance upon the life of Robert O. Barnes on behalf of the defendant-appellee. Agent McClendon represented to the Barnes that a monthly automatic premium check-off at the Barnes' bank in Columbiana, Alabama would be made by the defendant-appellee. H. M. McClendon again called upon Robert O. Barnes, the insured, and Margie C. Barnes, the Beneficiary, husband and wife, on September 8, 1970 at their home in Columbiana, Alabama; and he secured an application for life insurance and an initial premium payment by cash of Twenty-two and 47/100 Dollars ($22.47) from Robert O. Barnes giving him in return a Binding Receipt. The application was for a policy of life insurance in the amount of $10,000. The premium for a $10,000 policy applied for by Robert O. Barnes was $21.57 per month. Said printed Binding Receipt reflects in Agent McClendon's handwriting the receipt of a Twenty-two and 47/100 Dollar ($22.47) initial monthly premium and "amount . . . $10,000.00 . . . $20,000.00." The Binding Receipt stipulates the effective date of the policy will be the later of:
"date of application, or date of medical examination, if required, provided that the
1. proposed insured is determined by the Company at its Home Office in Atlanta, Georgia, in accordance with its rules and practices, to be insurable on such date for the policy exactly as applied for;
2. first full premium is paid in cash on date of application;
3. policy is issued exactly as applied for within 30 days from this date;
4. total insurance in force with the Company on the life of the proposed insured, including amount now applied for, will not exceed $50,000.00."
The application was filled out by Agent McClendon, signed by Robert O. Barnes and provided, inter alia medical information to the company. There had been discussion between Agent Mc-Clendon and Robert O. Barnes about additional coverage for accidental death. No notation was made on the application concerning any double indemnity coverage for accidental death, except there was a premium notation of payment in advance of $22.47 on the applicationthe total amount of premium including accidental death benefits coverage on a *147 policy as applied for by Barnes. The application was referred to in and made a part of the policy. Robert O. Barnes disclosed on the application that he had a lung operation at Prattsburg Air Force Base, New York, while in military service. "A week or two after McClendon took Barnes' application" he returned to Barnes' residence and secured Barnes' signature to a medical authorization form to be used by the defendant-appellee's underwriting department in determining if they were to issue the policy. No further contact was made between McClendon or defendant-appellee with Robert O. Barnes or his beneficiary until after his death on November 13, 1970.
On November 6, 1970 defendant prepared a policy of life insurance on the life of Robert O. Barnes in the amount of $10,000 with an effective date of November 5, 1970 and with an initial premium of $21.57. This policy was mailed to defendant's agent for delivery to Robert O. Barnes along with a letter dated November 5, 1970, addressed to Robert O. Barnes, referring to Policy Number 70K2580, reflecting a carbon copy to "Agent: H. M. McClendon" and enclosed therewith "Receipt for First Premium and Record of First Payment." Neither defendant nor its agent had any knowledge on November 6, 1970 or prior thereto that Robert O. Barnes had suffered gunshot wounds on November 4, 1970 and was in the hospital on November 6, 1970.
Agent McClendon attempted physical delivery of the policy to the Barnes' home on November 14, 1970the funeral date of Robert O. Barnes. Defendant's agent did not know when he attempted to deliver the policy to Robert O. Barnes on November 14, 1970 that Robert O. Barnes had been shot and had died the day before. When he learned Mr. Barnes was dead, the agent mailed the policy back to defendant's Home Office.
514 F.2d at 707-09.
The Court of Appeals has determined that the sole question before it is "whether pursuant to a (1) binding receipt or (2) policy itself a policy of life insurance was in effect covering appellant/beneficiary's deceased husband at the time of his death." 514 F.2d at 706.
Rather than responding to the questions in the form certified, we have followed the *148 suggestion of the Court of Appeals to direct our attention to what we consider to be the basic issues underlying those questions. See Martinez v. Rodriquez, 394 F.2d 156 (5th Cir. 1968), permitting "the [state] Supreme Court's restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts." Id. at 159, n. 6. See also the suggestion of Chief Judge Brown to like effect at footnote 10, p. 709, Barnes v. Atlantic & Pacific Life Insurance Co., supra.
Had there been no binding receipt issued on the date of the application, it is clear from our relevant case law that the proposed coverage would never have become effective under the provisions of the policy itself. The policy provides that it "will be effective as soon as it has been delivered to the owner and the first premium has been paid during the lifetime and continued insurability of the proposed insured." Such provisions have been found by this Court to be both "reasonable and valid." Life & Casualty Insurance Co. v. Latham, 255 Ala. 160, 164, 50 So. 2d 727, 731 (1951). Failure to satisfy the conditions set out in such policy provisions results in a failure of the policy to become effective.
In the instant case, coverage failed to become effective under the terms of the policy because the policy was not delivered during the "continued insurability" of the insured. The latter suffered a fatal gunshot wound on November 4, two days prior to the delivery of the policy on November 6. [The policy was placed in the mail that day to the agent.] Under Alabama case law, delivery to the insured is accomplished on the date that the insurer mails the policy to its agent with the intention that the agent turn it over to the insured. E.g., United Insurance Co. v. Headrick, 275 Ala. 594, 597, 157 So. 2d 19, 22 (1963).
We preface our analysis of the effect of the binding receipt by noting that we are in agreement with the following admonition expressed by the Supreme Court of Kansas in its opinion in Service v. Pyramid Life Insurance Co., 201 Kan, 196, 211, 440 P.2d 944, 956-57 (1968):
"There is a great confusion of authority as to the effect to be given such receipts. Because of the similarity of wording usually found in them, attempts have been made to generalize their operation. If these apparently conflicting authorities are examined, however, it becomes clear that these receipts are not capable of general treatment, but must be individually interpreted to give them the effect which the parties intended them to have in each case. The fundamental question is: What was their function?"
Under the terms of the binding receipt at issue in this case, coverage is contingent upon the occurrence of several conditions. The insurer relies on two separate grounds for its assertion that not all of these conditions were met.
1. The insurer bases its first argument on the language of conditions one and three of the binding receipt requiring that the policy be "issued exactly as applied for." The insurer argues that if the insured applied for double indemnity coverage for accidental death, as the beneficiary, his wife, claims, then the policy prepared by the insurer was not "issued exactly as applied for" because it does not include double indemnity coverage. It is further argued that the application for $10,000 coverage with double indemnity for accidental death amounted to an offer to buy insurance and that the policy prepared by the insurer, which did not provide for double indemnity coverage, amounted to a counteroffer and, in effect, was a rejection of the insured's offer.
The principles on which the insurer relies are well-established in Alabama law *149 and have been recently re-stated by this Court in Life Insurance Co. v. Miller, 292 Ala. 525, 529, 296 So. 2d 900, 903 (1974):
". . . an application for insurance is a mere offer which does not ripen into a contract until accepted by the insurance company. If the company issues a policy materially different from that applied for, in the eyes of the law, the policy is a rejection of the offer and is a counter-offer which becomes a binding contract only when accepted by the original offerorthe would-be insured."
In Miller, the insurer issued a policy incorporating all of the terms of the applicant's offer except the offer premium rate; the policy issued by the insurer up-rated the premium. Construing the policy most strongly against its framer, the insurer, this Court found that the insurer's decision to up-rate the policy was clearly arbitrary and that, therefore, the up-rate should be disregarded in construing the policy, thus precluding the argument that the policy was a counteroffer. For somewhat different reasons, the facts in the instant case also may support the contention that the insurer is estopped from asserting that the policy in question was a counteroffer rather than an acceptance of the insured's offer.
The record in this case includes evidence which tends to show that the insured intended to apply for double indemnity coverage for accidental death; that the insurer's agent was aware of the insured's intent; that, through the agent's oversight in filling out the application form for the insured, the agent inadvertently omitted mention of the applied-for double indemnity coverage; and that, at the time the policy was prepared, the insurer was unaware of insured's request for double indemnity coverage. Under this view of the facts, how can it be said that the insurer prepared its policy intending it to be a counteroffer and hence a rejection of the insured's offer?
Of even more persuasive force is the rule that
". . . `a party who deals with an agent, through whom he applies for and obtains a policy, has a right to presume that such material facts as are made known to him, are known to the principal . . . ."
Alabama Mutual Fire Insurance Co. v. Minchener, 133 Ala. 632, 635, 32 So. 225, 226 (1901). Under that rule an insured would be justified in relying on the insurer's agent to correctly inform the insurer of the terms of the insured's offer and that there ought not to be a denial of coverage merely because of the oversight of the insurer's agent.
Additionally, we would rely on a line of cases which, although not directly on point factually, impress us with their compelling logic. In these cases, the issue was whether the insurer could avoid liability on the ground that the application for insurance misrepresented some fact bearing on the risk of loss the insurer was asked to assume, when the misrepresentation was due to the oversight of the insurer's agent. These cases have been unanimous in their conclusion that
"[1] It is fully settled in this jurisdiction that misrepresentations resulting solely from the act or oversight of the soliciting agent taking the application, without the knowledge of the insured or beneficiary, are not available to the insurer, although the issuing authority acts upon the application as presented, and without knowledge of the misfeasance of its agent."
Inter-Ocean Casualty Co. v. Ervin, 229 Ala. 312, 313, 156 So. 844, 845 (1934). Furthermore, it has been held that
". . . In such case, the defendant will not be permitted to take advantage of the wrongful act, or misconstruction, or mistake, of its own agent, and avoid *150 the policy, the insured being without fault. * * *"
Williamson v. New Orleans Insurance Ass'n, 84 Ala. 106, 108, 4 So. 36, 38 (1887). Accord, National Life and Accident Insurance Co. v. Allen, 285 Ala. 551, 234 So. 2d 567 (1970); United Security Life Insurance Co. v. St. Clair, 41 Ala.App. 243, 130 So. 2d 213 (1961).
2. A second ground which the insurer asserts for the nonoccurrence of the conditions required by the binding receipt is the failure of the insurer to issue the policy within 30 days from the date of the application [condition three of the binding receipt]. In reply thereto, the insured argues that this provision was "waived" by issuance of the policy. We do not consider this argument to be persuasive. The insured interprets the 30-day provision to mean that the insurer would be under no legal obligation to issue its policy if it did not do so within a 30-day period. This, we consider to be a misinterpretation of the effect of the 30-day provision. The requirement that the policy be issued within 30 days is nothing more than a condition which must be met in order for coverage to become effective from the date of the application rather than the date of issuance of the policy. For the requirement of issuance within 30 days to be waived by the insurer, there must be a clear manifestation of intent to do so. The mere issuance of a policy at a time subsequent to the 30-day period is not in itself a sufficient manifestation of an intent to waive one of the conditions to coverage under the binding receipt.
Although we find no substance to the waiver argument, there would appear to us to be some support in the record for the argument that the insurer may be estopped from denying coverage on the basis of its failure to issue the policy within 30 days. This argument is founded upon general principles of contract law. Where a promisor's duty to perform is conditioned upon the occurrence of some event wholly within his control, there is an implied duty of good faith and fair dealing owing from the promisor. If the promisor's failure to cooperate results in the nonoccurrence of the condition, the condition is thereby excused. "The justification for the rule which makes prevention or hindrance by the promisor a breach of the duty of good faith and fair dealing as well as an excuse of the condition may be found in the assumption of the parties to the contract that the promisor . . . would take reasonable, positive action to ascertain its occurrence." J. Murray, Murray on Contracts § 187, at 365 (1974). Where a binding receipt is conditioned upon issuance of a policy within a certain time, the proposed insured is justified in assuming that the insurer will exercise reasonable care and diligence in acting upon his application. De Ford v. New York Life Insurance Co., 75 Colo. 146, 224 P. 1049 (1924).
Although not factually on all-fours, the recent Oklahoma case of Peddicord v. Prudential Insurance Co., 498 P.2d 1388 (Okl.1972) contains language to like effect. There, it was held:
"`* * * We think it may well be held that there was an implied contract if not a legal contract * * * on the part of the insurance company to act on the application within a reasonable time; that is, either to accept the application and issue the policy, or reject the same, so that the applicant could secure insurance elsewhere, . . . .'"
498 P.2d at 1390.
Whether the insurer's delay in issuing the policy in this case was within the bounds of reasonableness is certainly not a question which we can resolve. The record contains some evidence which would seem to indicate that the delay in issuance was unreasonable. Thus, if the policy was issued solely on the basis of the information contained in the application obtained on September 8, a delay of issuance until *151 November 6 would seem to be unreasonable. This view of the evidence is supported by a letter prepared by the insurer and enclosed with the policy. This letter states that the policy was "issued on the basis of the application you [the insured] recently gave our representative." The letter further states that the policy is of a type "issued only to persons who furnish evidence of insurability, which was supplied with your application."
On the other hand, the insurer contends that the delay in issuance was caused by delays it encountered in obtaining records of the insured's medical history during his military service.
Again, we would observe that a resolution of these conflicting contentions is not for our determination.
Turning now to insured's argument that there is ambiguity between the provisions of the policy and the binding receipt concerning the effective date of the policy, our case law has long adhered to "the rule of liberal construction in favor of the insured of insurance policies in case of any ambiguity." New York Life Insurance Co. v. Torrance, 224 Ala. 614, 617, 141 So. 547, 550 (1932).
However, we see no ambiguity under the language at hand here. The policy provides that, if a binding receipt has been issued, the effective date of the policy is to be determined under the provisions of the binding receipt. The binding receipt provides that its date is to be the effective date of the policy only if certain conditions are satisfied. This Court interprets this language to provide that the terms of the binding receipt are to control only if its conditions are met and that otherwise the terms of the policy are controlling.
Under Alabama law, therefore, the effective date of the policy is to be determined by the binding receipt, if the conditions contained therein are met. Based upon the record before us, we believe there is a question of fact to be resolved on the issue of waiver or estoppel on the part of the insurer insofar as condition 3 of the binding receipt is concerned.
The foregoing states Alabama law on the issues underlying the questions certified.
HEFLIN, C.J., and MERRILL, MADDOX, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur. | December 18, 1975 |
cf040057-174d-4fe2-adbf-3fb57b114eed | Murray v. State | 274 So. 2d 368 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 368 (1973)
In re Jessie James MURRAY
v.
STATE of Alabama.
Ex parte Jessie James Murray.
SC 253.
Supreme Court of Alabama.
March 8, 1973.
Russell, Raymon & Russell, Tuskegee, for petitioner.
BLOODWORTH, Justice.
Petition of Jessie James Murray for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Murray v. State, 49 Ala.App. 590, 274 So. 2d 365.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
COLEMAN, J., dissents. | March 8, 1973 |
8bea0323-5658-441c-84f8-8329f7e7410c | In RE McDADE v. State | 274 So. 2d 93 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 93 (1973)
In re Benjaman McDADE
v.
STATE.
Ex parte Benjaman McDade, alias.
SC 156.
Supreme Court of Alabama.
March 1, 1973.
Alfred W. Goldthwaite, Montgomery, for petitioner.
MADDOX, Justice.
Petition of Benjamin McDade for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McDade v. State, 49 Ala.App. 533, 274 So. 2d 89.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur. | March 1, 1973 |
6f2693da-b628-4a81-937c-e99bb3446f44 | Hall v. City of Huntsville | 278 So. 2d 708 | N/A | Alabama | Alabama Supreme Court | 278 So. 2d 708 (1973)
Virginia HALL
v.
CITY OF HUNTSVILLE, Alabama, et al.
SC 59.
Supreme Court of Alabama.
March 8, 1973.
Rehearing Denied April 5, 1973.
*709 William G. Hamm, Jr., Huntsville, for appellant.
Ford, Caldwell, Ford & Payne and Robert L. Hodges, Huntsville, for appellees.
JONES, Justice.
This is an appeal from a judgment of the Madison County Circuit Court in favor of the defendants-appellees, City of Huntsville and Huntsville Hospital Board of Control, and against the plaintiff-appellant, Virginia Hall.
On June 7, 1964, the appellant was admitted to the Huntsville Hospital for treatment of a gastro-intestinal ailment. The following day a series of tests were begun on the appellant, including routine blood tests. The appellant's affliction was quite painful and she was given injections for the pain periodically during her stay in the hospital. Surgery was performed on the appellant to correct her stomach problem around June 16 and apparently this surgery was successful. However, soon after her operation, the appellant began having problems with her left hip in the area where she had received the frequent injections to ease her pain. Appellant's hip was hard and full, swollen and painful, and she had red streaks running down her leg. Appellant's doctor began treating the hip while she was still in the hospital, but appellant went home before the hip was completely healed. Early in July appellant was put back in the hospital, this time because of her hip which was giving her a great deal of trouble. It was determined that appellant had developed a serious "staph" infection in her left hip. The blood tests run upon the appellant by the hospital in early June had shown no sign of a "staph" infection. Appellant remained in Huntsville Hospital until August 1 receiving treatment for her hip infection. Following her discharge from the hospital the second time, it was the end of August before appellant was able to be up and around on her own and she was absent from her job about six months from the time she first entered the hospital in June of 1964.
The case went to trial on counts 3 and 4 of appellant's amended complaint after appellees' demurrers to her original complaint were sustained by the trial court.
Counts 3 and 4, which are essentially the same, charge that the defendants were engaged in the operation of a hospital at Huntsville, Alabama; that for valuable consideration the defendants impliedly contracted to nurse and care for the plaintiff and to furnish her with hygienic, healthful and disease-free facilities, all for the purpose of the plaintiff's having surgery performed on her person; that pursuant to said contract, the plaintiff entered defendants' hospital, after having agreed to pay all reasonable compensation and charges therefor; that the defendants did not perform their contract to provide such facilities, but on the contrary, in violation of said contract, wholly failed to place the plaintiff in such of its facilities that were hygienic, healthful and disease free; and that as a proximate consequence of the defendants' breach of said implied contract, the plaintiff's hip became infected and the plaintiff was caused to undergo additional surgery, to incur considerable expenses, to suffer great pain and discomfort and to become permanently disabled.
The appellees' answers to the amended complaint asserted eight pleas setting forth primarily the defenses of general issue, governmental immunity and failure to comply with the provisions of Title 37, Sections 476 and 504, Code of Alabama 1940, as amended.
On October 11, 1971, trial was begun before a jury. The appellant's evidence established the facts set out at the beginning of this opinion and the appellees presented testimony relating to the hygienic safeguards and procedures used by the staff of Huntsville Hospital in the care of the appellant and in general. There was a conflict in the evidence concerning the type of *710 hypodermic syringes used in giving the appellant her numerous "pain" shots. The appellant was positive the nurses used the older, nondisposable variety, whereas the nurses who gave the injections testified that only the new, disposable syringes were used.
After the evidence for both sides had been presented, the trial court gave the affirmative charge, without hypothesis, for both defendants. Pursuant thereto, the jury found in favor of the appellees, and judgment was entered accordingly.
Appellant's motion for a new trial having been denied, she brings this appeal. Appellant assigns as error the refusal of the trial court to grant her motion for a new trial and the court's giving of the affirmative charge without hypothesis for both defendants.
The appellant's contention, with respect to the maintenance of a contract action under the facts of this case, if adopted by the court, would establish an indefensible legal principle. To charge an implied contract to keep the plaintiff safe from infection, and then to prove merely that an infection did occur, would amount to equating the hospital's duty to that of an insurer. There is no question but that an implied contract did arise out of the relationship of the parties and that this included, among other things, the duty on the part of the hospital to furnish to the plaintiff a reasonable degree of care in rendering her immune to infection, a breach of which duty may be proven either by a failure to perform, or by a negligent performance. Vines v. Crescent Transit Company, 264 Ala. 114, 85 So. 2d 436; Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So. 2d 817. However, a mere showing that an infection originated during her hospitalization, absent proof that such resulted from a failure of proper care and attention, or the result of the doing of a negligent act, does not meet the legal test for the breach of this contractual duty.
The only evidence on this point, although seriously disputed by the defendants, is the plaintiff's testimony that the syringe used in administering the injection was not the disposable type. Accepting the plaintiff's version as true, we are left to conjecture as to the effect of this practice. We cannot apply the tort doctrine of res ipsa loquitur in a contract action so as to impose liability by the mere showing of the end result. It may well be that the use of nondisposable syringes unduly increases the risk of infection and, therefore, the failure to use the safer disposable-type syringe (if such be the case) constitutes an actionable breach of the implied contractual duty owed the plaintiff by the defendants where injury to the plaintiff results therefrom. Neither the trial court, nor this Court, however, would be authorized to take judicial knowledge of such fact. Independent Life Ins. Co. v. Carroll, 222 Ala. 34, 130 So. 402.
We are not to be understood as announcing a rule to the effect that in every case the showing of the end result falls short of a proven breach. When a car manufacturer sells an automobile, there arises out of such sale an implied warranty of fitness when the product is used in the ordinary and intended manner. Title 7A, § 2-315, Code of Alabama 1940, as amended. In such cases, the mere proof, for example, that the steering wheel came off would be sufficient proof of the breach for the reason that the thing breached (not performed or wrongfully performed) was the thing promised.
Where the relationship of the parties gives rise to an implied contract, the initial inquiry is: What duty arises out of this relationship? Or, stated another way, what was promised? The answer lies in the nature of the relationship tested by applicable rules of contract law. When a fee-paying patient enters the hospital, it is out of the nature of this hospital-patient relationship that a duty arises to furnish certain care and attentionto do certain *711 things and refrain from doing certain things. The hospital, for a valuable consideration, promises to do certain things and/or not to do certain things. The fact that a like duty is imposed by law, the violation of which gives rise to a tort action, does not of itself take away the fact of contract, or the corresponding right of election of remedies. Waters v. American Casualty Co. of Reading, Pa., 261 Ala. 252, 73 So. 2d 524.[1]
To answer the question (what was promised), as it relates to this case, we must ask others: Does this relationship impose on the hospital the unqualified and absolute duty to render the patient free from infection? Or, does this relationship, in keeping with the intent or within the contemplation of the parties (meeting of minds), impose on the hospital the duty to prevent such infection to the degree and extent possible when measured by the standards of the hospital industry?
We submit that these questions are self-answering. An affirmative answer to the former ("unqualified duty") would constitute the hospital an insurer or guarantor and be violative of contract principles. An affirmative answer to the later (duty of reasonable care to prevent infection) preserves the integrity of contract law and recognizes the reality of the nature of the relationship out of which the contractual duty arises.
What we are saying is simply this: Whether a breach of contract has occurred must be tested in the light of what was promised. When that test is applied to facts disclosed by the record before us, we are constrained to the conclusion that the trial court did not err in giving the affirmative charge without hypothesis.
Having examined and treated all questions presented and argued, we find nothing that warrants a reversal of the judgment of the trial court.
Judgment affirmed.
HEFLIN, C. J., and HARWOOD and FAULKNER, JJ., concur.
MERRILL, COLEMAN, BLOODWORTH, MADDOX and McCALL, JJ., concur in result.
COLEMAN, Justice (concurring in result):
I concur in affirmance for the reason that the evidence failed to show that defendant had committed a breach of the implied contract.
McCALL, Justice (concurring in the result).
I concur in the result that the trial court did not err in giving the affirmative charge for the two defendants. However, as to the remainder of the opinion I am in disagreement and respectfully dissent for the reasons set forth in the dissenting opinion in Holcomb v. Escambia County Hospital Board, 1973.[*]
MERRILL, BLOODWORTH and MADDOX, JJ., concur.
[1] See also Holcomb v. Escambia County Hospital Board (1973), 291 Ala. 114, 278 So. 2d 699.
[*] Reporter's Note: Justice McCall refers to a dissent to the original opinion in Holcomb, set aside on rehearing and consequently not published. See 290 Ala. 114, 278 So. 2d 699. | March 8, 1973 |
5abdb71e-4454-4bcc-a829-7c7c0588f156 | State v. Hunt Oil Company | 273 So. 2d 214 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 214 (1973)
In re STATE of Alabama
v.
HUNT OIL COMPANY, a corporation.
Ex parte HUNT OIL COMPANY, a corporation.
SC 231.
Supreme Court of Alabama.
February 15, 1973.
Fontaine M. Howard, of Capell, Howard, Knabe & Cobbs, Montgomery, for petitioner.
JONES, Justice.
Petition of Hunt Oil Company, a Corporation, for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in State of Alabama v. Hunt Oil Company, a Corp., 49 Ala.App. 445, 273 So. 2d 207.
Writ denied.
HEFLIN, C.J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | February 15, 1973 |
827b61b3-1a45-4412-8163-7efe8f478956 | DeBardeleben v. Tynes | 276 So. 2d 126 | N/A | Alabama | Alabama Supreme Court | 276 So. 2d 126 (1973)
Charles F. DeBARDELEBEN, III
v.
Mrs. Carolyn N. TYNES.
Mrs. Carolyn N. TYNES
v.
Charles F. DeBARDELEBEN, III.
SC 5, 5-X.
Supreme Court of Alabama.
February 22, 1973.
Rehearing Denied April 26, 1973.
Rives, Peterson, Pettus, Conway & Burge and W. Eugene Rutledge, Birmingham, for appellant.
Spain, Gillon, Riley, Tate & Ansley and S. R. Starnes and Ollie L. Blan, Jr., Birmingham, for appellee.
HARWOOD, Justice.
This is an appeal from a judgment entered pursuant to a jury verdict in favor of the defendant. The plaintiff, Charles F. DeBardeleben, III, claimed damages for the death of his minor son allegedly caused by the negligence of the defendant, Mrs. Carolyn N. Tynes.
The complaint as finally amended, went to the jury on two counts, Count B and Count C.
*127 Count B avers that the defendant invited the plaintiff's son William, a child under seven years of age, to her home for the purpose of playing with her own son; that the defendant picked up the plaintiff's child at his school and took him to her home, and while the plaintiff's son was at the defendant's home "the defendant negligently caused or negligently allowed her automobile to run over or upon the said minor child of the plaintiff and as a proximate consequence of the aforesaid negligence of the defendant, plaintiff's said minor child was killed."
Count C avers that the defendant voluntarily undertook to assume the custody, care, and control of the plaintiff's son, a child under seven years of age, and while the child was under the custody, care, and control of the defendant, "the defendant negligently caused or negligently allowed her automobile to run over or upon the said minor child of the plaintiff and as a proximate consequence of the aforesaid negligence of the defendant, plaintiff's said minor child was killed."
Each of the counts concluded with the statement that the cause of action was based upon and brought under Section 119, Title 7, Code of Alabama 1940.
The evidence is not in any serious conflict, particularly as to its application to the points raised on this appeal. The evidence tends to show that the defendant's son Norman and the plaintiff's son William attended the same kindergarten school. They were friends. One night the defendant's son Norman telephoned William and invited him to his house the next afternoon. After clearance with the respective mothers, the invitation was accepted.
The next afternoon the defendant picked up Norman and William at school and took them to her house. The defendant's two year old daughter Carrie accompanied the defendant on the trip to the school.
The home of the defendant and her husband faces on Ridge Drive in Mountain Brook. The lot slopes back from Ridge Drive. A sloping driveway runs from the street to the rear of the home where it ends at an area used in turning automobiles around. A sand box for the defendant's children is in this area. A stone wall separates this portion of the lot from a lower portion. Steps in the vicinity of the sand box lead to the lower yard.
Returning to her home with the two young boys and her small daughter in the automobile with her, the defendant stopped her automobile near a walkway leading from the driveway to the front of the house.
The defendant talked to the two boys a few moments prior to their leaving the automobile to go to the sand box.
The defendant, followed by Carrie, then went into a portion of the yard to change the location of a lawn sprinkler. The defendant suggested to Carrie that she not try to help in moving the sprinkler, and Carrie walked back toward the automobile. The defendant observed Carrie trying to get into the automobile, the door being open, and called to her to stop. Carrie turned and faced the defendant who then proceeded with moving the sprinkler. Carrie had never before been able to get in the automobile unassisted.
Hearing a noise, the defendant looked and saw the automobile rolling down the driveway, with Carrie clutching onto the steering wheel, either in the automobile, or partly so.
The defendant ran after the automobile which came to a stop with the front end partly on the stone retaining wall, and one front wheel on the steps leading to the lower yard. Peering under the automobile the defendant saw William pinned underneath. She then rushed into the house and called the police.
An Alabama Power Company crew of eight men were working about 300 feet *128 from the defendant's home. Hearing a loud noise, followed by screams, they rushed to the scene. They lifted the front end of the automobile and rolled it back off the body of William. During the procedure the defendant came out of the back door of her home. She was in a highly emotional state, and fell once or twice in walking around the scene.
None of the crew members could recall whether the door of the automobile was open when they observed it, nor did any of them look to see whether the shift lever was in "park." One crew member, Howard Mooney, testified that he did observe the brake and "it appeared to be down." The other crew members did not observe the brake.
Lawrence Todd, Jr., a legal photographer, was called by the Mountain Brook police and directed to go to the scene. He arrived about fifteen minutes after the accident had occurred. A police car was leaving with William when he arrived and the defendant's automobile was at the sand box. He made a photograph of the interior of the defendant's automobile showing the brake, and it appears to be mashed down and so appeared when he looked at it. Todd also saw police officer Hardesty release the brake pedal when he moved the automobile.
The automobile rolled back when lifted and pushed back by the Power Company workmen, that is, the wheels did not slide. However, two witnesses testified that some automobiles will roll backwards even though the brakes are on.
Mr. DeBardeleben, the plaintiff, testified that on the evening of the accident Mrs. Tynes came to the DeBardeleben home. In her account of the accident at that time, she stated that when she had stopped the automobile in her driveway, she had placed the shift lever in "park," had put on the foot brake, and had turned the front wheels to the right. As to her daughter Carrie's position when the automobile began to roll, Mrs. Tynes had stated that "the little girl at one time was in the car, and at one time the little girl was not in the car, and at one time she was half in and half out." He therefore did not understand where Carrie was in relation to the car as it rolled down the hill. Mr. DeBardeleben further testified that Mrs. Tynes was emotional at the time of giving her accounts of the happening.
In her testimony in the hearing below, Mrs. Tynes testified that she had put the automobile in park, had put the brakes on, and turned the wheels to the right. She further testified that when she saw the automobile moving, Carrie was hanging onto the steering wheel for dear life, "to stay on there." Dr. Tynes, husband of the defendant, and the defendant, both testified that they had never had any difficulty with the functioning of either the parking device, or the brakes since owning the automobile in question. Further, an adjustor, presented as a witness by the plaintiff, testified that two days after the accident he and an assistant had conducted tests on the Tynes' automobile by driving it to a hill with a steeper slope than that of the Tynes' driveway. The car was placed in neutral and the brake applied. Efforts to make the automobile move by pushing and juggling it proved negative. The same result followed when the brake was released and the shift lever was placed in "park."
The appellant has argued four assignments of error in brief, and each assignment respectively pertains to the refusal of four written requested charges which were refused by the court.
These charges are lengthy and we see no useful purpose in setting them out other than to observe that each respective charge seeks to instruct the jury that they may infer negligence under the facts shown; in other words, that the doctrine of res ipsa loquitur could be applied permitting the jury to infer that the defendant negligently allowed or caused her automobile to run over William, and that his death resulted *129 as a proximate consequence of such negligence.
The rationale and result of the doctrine of res ipsa loquitur is to raise a rebuttable presumption of law, assumed not because it necessarily follows upon facts in evidence, but because the chief evidence of the cause of the injury charged is practically inaccessible to the injured party, and is known or accessible to the party charged with causing the injury. Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257.
The presumption of negligence permitted by the application of the doctrine of res ipsa loquitur is not evidence, nor does it serve in the place of evidence after evidence to the contrary has been adduced. Holmes v. Birmingham Transit Co., 270 Ala. 215, 116 So. 2d 912.
As stated by the Supreme Court of Mississippi in Bloch v. Brown, 201 Miss. 653, 29 So.2d 665:
Again, as stated in general terms in 58 Am.Jur.2d, Negligence, Section 489:
Under the plaintiff's evidence, negligence on the part of Mrs. Tynes, if any, must be deemed to have arisen either from, (1) failure to use reasonable care in applying the brake and parking gear of the automobile to prevent its rolling, or (2) failure to use reasonable care in the supervision of defendant's minor daughter, Carrie, under the circumstances.
The plaintiff was fully aware of Mrs. Tynes' post accident account of the accident. We do not see that this account varied in any real material aspect from the account given by Mrs. Tynes in her testimony at the trial. There was no necessity therefore for the application of the doctrine of res ipsa loquitur.
Mrs. Tynes at all times stated she had applied the brake and placed the automobile in park before leaving it. Whether she did or did not do so was a question of fact within the province of the jury to resolve. Likewise, whether Mrs. Tynes was guilty of negligently supervising her young daughter under the facts shown, was also a matter within the province of the jury to resolve.
The lower court therefore did not err in refusing the four written charges above mentioned, and the assignments of error asserting error in these respective instances are without merit.
Counsel for appellee has asserted and argued additional reasons showing the non-applicability of the doctrine of res ipsa loquitur to the facts of this case. It is our view that what we have written above is dispositive of the points raised in appellant's brief. Without intimating that these additional reasons justifying the court's action in refusing the four above mentioned charges may, or may not, be meritorious, we see no pressing need to discuss them. The judgment here appealed from is due to be affirmed.
Counsel for appellee has cross-assigned errors, asserting error on the part of the court in overruling the demurrers to Counts B and C, and in refusing two charges requested by the appellee in the *130 trial below, and has filed a brief in support of the cross-assignments.
Since the appellee has gained a verdict and judgment which is due to be affirmed, she has nothing about which to complain. Anything we would write in connection with appellee's cross-assignments of error would therefore be dictum. Further, it is axiomatic that a party in whose favor a verdict and judgment are rendered and entered, can bring an appeal only to question the amount of damages. Beatty v. McMillan, 226 Ala. 405, 147 So. 180; Bates v. General Tank Co., 36 Ala.App. 261, 55 So. 2d 213.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX, and FAULKNER, JJ., concur. | February 22, 1973 |
6a9c51f3-eb6f-4f2f-90b8-3df9b64a66d2 | In RE PHILLIPS v. Phillips | 274 So. 2d 80 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 80 (1973)
In re Sharon Aletha PHILLIPS
v.
Ira PHILLIPS, Jr.
Ex parte Ira PHILLIPS, Jr.
SC 267.
Supreme Court of Alabama.
March 1, 1973.
Simmons, Torbert & Cardwell, Gadsden, for petitioner.
No brief from respondent.
MERRILL, Justice.
The petition for writ of certiorari in this case is denied.
The petitioner is the appellee. He was successful in securing an affirmance of that part of the decision which granted a divorce to him on the ground of incompatibility. He does not contest that part of the opinion of the Court of Civil Appeals, but his petition is based on the alimony feature of the opinion, and that part of the opinion is all that is before us on this petition.
We are not intimating that we agree or disagree with what the Court of Civil Appeals, 49 Ala.App. 514, 274 So. 2d 71 had to say on the question of incompatibility. That will still be a question of first impression in this court if and when it is properly before us for the first time.
Writ denied.
HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. | March 1, 1973 |
15e89fbc-10ec-40b0-b941-3081412b2cb8 | Bruner v. Hines | 324 So. 2d 265 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 265 (1975)
Ellis L. BRUNER and Frances L. Bruner
v.
Clarence J. HINES and Laura Hines.
SC 1121.
Supreme Court of Alabama.
December 4, 1975.
Rehearing Denied January 9, 1976.
*266 Craig Miller, Montgomery, for appellants.
James W. Garrett, Jr., Montgomery, for appellees.
JONES, Justice.
This is an appeal from the denial of a purchaser's suit for specific performance of a contract to convey land. We reverse and remand.
In 1973, Ellis and Frances Bruner began to negotiate with Clarence and Laura Hines for the sale of 15 acres of land fronting the Mobile Highway in Montgomery County commonly known as Swann Trailer Park. During these negotiations Hines, the seller, accompanied Bruner, the purchaser, to the site of the property. Bruner pointed out the property he wanted. Bruner later showed Hines a rough plat of the land which had been drawn from a tape measurement done by Bruner and his wife. The tape measurement showed 366 feet road frontage, but Bruner told Hines that was only an estimate and might vary by 10 feet either way.
In August, 1973, the Bruners and the Hines executed a written contract for sale *267 of the 15 acres. The contract included the "rough plat" done by Bruner and his wife, but the plat was understood by both parties not to be an exact description of the land. The contract provided that the purchaser would pay $15,000, of which $3,000 was a downpayment, furnish a survey of the land by a registered civil engineer, and install a fence along the surveyed line within 60 days. The parties agreed that the description of the 15 acres as furnished by the surveyor would constitute the 15 acres contracted to be purchased. Time was stipulated to be of the essence.
Shortly after the contract was signed, Bruner, the purchaser, employed a civil engineer named Mr. Cleghorn to survey the property. The Cleghorn survey was submitted to Hines's attorney who rejected it because Cleghorn's certification had expired.
The purchaser then hired a civil engineer named Mr. Garrett to survey the property. Because of a dispute about working conditions, the purchaser fired Garrett before his survey was complete.
Finally, the purchaser hired a civil engineer named Mr. Blalock. Blalock's certification was in order and his survey was completed and submitted within the sixty-day period provided by the contract.
The fence required by the contract was originally installed along the Cleghorn survey, but was later moved slightly to comply with the Blalock survey. The final survey included 15.1 acres with 376.5 feet of road frontage. The purchaser offered the seller $500 for the additional 0.1 acre.
The seller refused to convey, claiming that the buyer's survey did not comply with the contract. This refusal, says the seller, can be supported by the doctrine of constructive conditions of exchange. Since the contract required the buyer to furnish the survey before it required the seller to convey, the buyer's survey was a condition precedent to the seller's duty to convey. The seller contends further that the buyer failed to comply with the survey requirement before the sixty-day period expired; therefore, his duty to convey never became enforceable.
The validity of the seller's arguments depend upon two issues. First, did the survey furnished by the buyer constitute a breach of his contractual obligations? Second, if the buyer did breach the contract, was his breach so material that it discharged the seller's duty to convey?
Our inquiry into these issues must begin with the contractual language relating to the survey. The contract identifies the 15-acre plot by a rough drawing which is attached to the contract, but it stipulates that the exact description will be provided by a survey which will be furnished several weeks after the formal agreement is consummated. The survey description is the description to be used in the deed and the purchase money mortgage. The contract does not include the normal words of approximation, such as, "15 acres more or less."
Words of approximation have legal significance in Alabama. In the case of Hodges v. Denny, 86 Ala. 226, 5 So. 492 (1888), this Court classified contracts for the sale of land into two categories sales of specific tracts and sales of specified quantities. Regarding specified quantity sales, such as the sale in the instant case, the Court said that the words "more or less" had the effect of qualifying the contractual description of the land to allow for small variances in quantity due to "errors in surveys or variations in instruments." The words of approximation place the risk of such small errors on both parties in specific quantity sales and prevent either party from obtaining an adjustment in the purchase price.
The corollary of this rule is found in Bankhead v. Jackson, 257 Ala. 131, 57 So. 2d 609 (1952), where the Court said: "A contract of sale by the acre is one wherein a specified quantity is material. *268 Under such a sale, the purchaser does not take the risk of any deficiency and the vendor does not take the risk of any excess."
Since the Hines-Bruner contract included no words of approximation, we must conclude, as the Bankhead Court did, that exact acreage is material. Thus, we interpret the survey provisions of the contract to require the buyer to return a survey for exactly 15 acres. When the buyer furnished a survey for 15.1 acres, he partially breached the contract.
Our finding that the buyer partially breached his contract brings us to the second issue, which is whether the seller was thereby released from his duty to convey. To preclude the buyer from enforcing the seller's promise to convey, the seller must establish that the buyer's breach was material. Conversely stated, to enforce the seller's promise, the buyer must prove that the survey he furnished substantially performed his contractual obligations. The test for materiality of a partial breach is set out in Western Union Telegraph Co. v. Tersheshee, 230 Ala. 239, 160 So. 233 (1935). In that case, the Court said:
The main purpose of the contract between Hines and Bruner is not to furnish a survey, it is to convey land. The survey is incidental to the conveyance. The pivotal question, therefore, is whether the survey which Bruner furnished was so inaccurate that it defeated the main purpose of the contractthe conveyance. We believe that the doctrine of substantial performance is applicable to this problem.
The doctrine of substantial performance, which is now most commonly associated with building construction contracts, was actually introduced in Anglo-American jurisprudence in a land-sale case, Boone v. Eyre, 1 H.B1. 273, 126 Eng.Rep. 160, Note (K.B.1777).[1] This Court has said that "substantial performance does not contemplate a full or exact performance in every slight or unimportant detail, but performance of all important parts." Miles v. Moore, 262 Ala. 441, 79 So. 2d 432 (1955); Wilson v. Williams, 257 Ala. 445, 59 So. 2d 616 (1952).
In order to decide whether Bruner's survey constituted substantial performance of his contractual duties, it is necessary to analyze the policy considerations behind the doctrine. The doctrine arose to mitigate the harsh results that could flow from constructive conditions of exchange in those contracts which require one party to render performance before the other party's reciprocal promise is enforceable. If constructive conditions had to be literally performed, the party whose duty is enforceable only after his promisor's performance is rendered would have an absolute defense to an action on the contract whenever a trivial portion of his promisor's performance is incomplete.[2]
A good example of how the doctrine of substantial performance operates to prevent *269 such injustice is found in the building construction situation. The doctrine is especially useful in building contracts because of the difficulty of reproducing on the construction site the precise specifications of blue print drawings. Often comparable materials of different brands will have to be substituted for specified but unobtainable brands,[3] and foundation specifications on drawings will bend somewhat to the realities of pouring concrete.[4] If the owner's duty to pay were strictly conditioned upon literal compliance with the contract, construction contractors would rarely be paid because dissatisfied owners could usually point to some discrepancy between the contract specifications and the finished product. Under the substantial performance doctrine, the builder may be held liable in damages for any discrepancy, but if his performance substantially fulfills the main purpose of the contract, he can enforce the owner's promise to pay.
There is an analogy between the building contract situation and the instant case. In the instant case, the seller rejected the buyer's survey because it showed 10 feet more road frontage than the rough plat and contained 0.1 acre more area than the contract specified. A professional surveyor testified at the trial that no two surveys of the same land will be identical. He also testified that the cost of obtaining a survey which would absolutely comply with the contract's specifications would be prohibitive, and that the custom in the surveying profession is to accept as accurate surveys which do not exactly meet prescribed acreage. When his testimony is considered in light of the facts that the rough plat's road frontage was measured with a steel tape, not survey equipment, and its recital of 15 acres was only the buyer's best estimate, it is obvious that the seller's promise to convey should not be strictly conditioned upon the buyer's duty to furnish a survey identical to the rough plat.
If the enforceability of the seller's promise were so conditioned, the seller could continue to point out discrepancies in the buyer's survey and put the buyer to tremendous expense resurveying the land. The facts of this case indicate that the buyer under this contract, much like the builder under a construction contract, would be at an unfair disadvantage if he were required to fully and exactly perform all of his contractual duties before he could enforce any of his contractual rights.
The question of substantial performance is determined with reference to the existing facts and circumstances of each case. Wilson v. Williams, supra; Gray v. Wood, 220 Ala. 587, 127 So. 148 (1930). In this case, since the survey was incidental to the main purpose of the contract, and since the surveying profession accepts as accurate surveys with small deviations, we hold that the buyer substantially performed his obligations under the contract when he furnished the Blalock survey. Thus, the seller's promise to convey became enforceable within the 60-day contract period and the seller is now in default.
The doctrine of substantial performance is a necessary inroad on the pure concept of freedom of contracts. The doctrine recognizes countervailing interests of private individuals and society; and, to some extent, it sacrifices the preciseness of the individual's contractual expectations to society's need for facilitating economic exchange. This is not to say that the rule of substantial performance constitutes a moral or ethical compromise; rather, the wisdom of its application adds legal efficacy to *270 promises by enforcing the essential purposes of contracts and by eliminating trivial excuses for nonperformance.
Because both the individual and societal interests are vital coordinates in a private enterprise system, the compromise of full performance should be kept minimal, and compensation should be paid whenever a party's bargained for exchange is not fulfilled. In this case, the seller bargained to sell fifteen acresno more, no less. We have held that the buyer's survey for 15.1 acres, although it breached the contract, so closely approximated the contract's survey requirement that it constituted substantial performance. Such a holding, however, does not mean that the seller must now convey 15.1 acres with 376 feet of road frontage for the original price of $15,000. Substantial performance of the survey requirement must be distinguished from modification of the contract to conform with the survey. The original terms of exchange remain in force.
On remand, the trial Court should reopen the case for a determination of the boundary lines of the property to be conveyed. If the trial Court finds that the buyer's survey is as accurate a description of the property as practicable, the Court should determine the value of the additional 0.1 acre and assess that amount against the buyer as damages for partial breach. If the trial Court finds that the buyer's survey is not as accurate as practicable, the Court should determine the most accurate description and enter a decree for specific performance upon that description along with any sums of money which may be necessary to compensate either party for deviations from 15.0 acres.
Reversed and remanded.
HEFLIN, C.J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] See also 3A Corbin on Contracts, § 701 at 312 (1960), and Senick v. Lucas, 234 Md. 373, 199 A.2d 375 (1964), for other authority applying the substantial performance doctrine to land-sale cases.
[2] See generally, Calamari and Perillo, The Law of Contracts, § 157, at 248 (1970).
[3] Jacob & Youngs v. Kent, 230 N.Y. 239, 129 N.E. 889, 23 A.L.R. 1429 (1970).
[4] Kizziar v. Dollar, 268 F.2d 914 (10th Cir.1959). | December 4, 1975 |
259ca72c-0c98-47cb-b15e-ed8947a59350 | Baptist Foundation of Alabama v. Penn | 324 So. 2d 766 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 766 (1975)
The BAPTIST FOUNDATION OF ALABAMA
v.
Walter L. PENN et al.
SC 1112.
Supreme Court of Alabama.
December 18, 1975.
Rehearing Denied January 15, 1976.
*767 Richard H. Gill, Montgomery, for appellant.
Sterling G. Culpepper, Jr., Montgomery, for appellees.
BLOODWORTH, Justice.
The Baptist Foundation appeals from a final decree of the Circuit Court of Montgomery County enjoining it from obstructing a road. We affirm.
This case began as a suit by The Baptist Foundation to enjoin a continuing trespass to lands held by it under a testamentary trust. In its petition, The Baptist Foundation alleged that appellee Penn had crossed and was continuing to cross an old roadway or trail on the Foundation's lands and was grading, scraping, and filling the roadway to utilize it as access to a trailer park Penn planned to build. Appellee Penn denied any trespass by asserting that the roadway was the subject of a prescriptive easement in favor of the general public.
Following a lengthy hearing, the court found that the roadway in question had become a public roadway by prescription and denied the Foundation's request for a temporary injunction against Penn.
Penn then filed a cross bill averring that the road in question was a public road by prescription, seeking to enjoin the Foundation from any interference with his right to use the road and to improve it, and adding as parties various other owners of land adjacent to the road.
At the conclusion of a hearing held to consider Penn's cross bill, the court again found that the road in question is a public road. The court also found that Penn would suffer damages greater in kind and degree than that of the general public if the road were blocked or obstructed and granted Penn's request for an injunction enjoining the Foundation from obstructing the road, from which decree the Foundation now appeals.
The Foundation contends that it made out a prima facie case at the preliminary injunction hearing by establishing its title to, and possession of, the land on which the road is situated, by establishing that the road lay entirely within its property, by establishing that Penn did not have its permission to change the character of the road, and by establishing that Penn did enter its land with road machinery, trucks, and fill material. The Foundation further contends that, because Penn was the moving party at the second hearing, Penn bore the burden of affirmatively establishing a prescriptive right to use the road, as well as the burden of establishing Penn's individual right to an injunction different from the general public. It is the Foundation's contention that Penn did not meet these burdens.
Although it is undisputed that the roadway in question was never a road recognized and maintained by the county, the exact status of the existing roadway is the subject of much dispute.
*768 According to the Foundation, the roadway in question was merely "a trail winding across the property, heavily grown up with underbrush and small trees and impassable by car." Relying on the authority of Benson v. Pickens County, 260 Ala. 436, 70 So. 2d 647 (1954), the Foundation maintains that the rule is that the use of such a road is presumed to be permissive and that the party claiming an adverse use has the burden of proving it. It is insisted, in brief, that there is no evidence in the record of any use that was "adverse, hostile to the title of [The Baptist Foundation or its predecessor in title], and under a claim of right," and that, to the contrary, the witnesses conceded that all use of the roadway was with the assumed or express permission of the owner.
According to Penn, the roadway is an open, well-defined road with a history of at least 20 years of continuous public use. Under Penn's version of the facts, the rule of Benson is inapplicable and the rule of Ayers v. Stidham, 260 Ala. 390, 71 So. 2d 95 (1954), is controlling.
In Ayers this Court held that "an open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public highway by prescription.... [A] presumption of dedication or other appropriation to a public use arises." 260 Ala. at 392, 71 So. 2d at 97. Moreover, once the Ayers presumption arises, the burden is then on the landowner to show that the use was permissive and that it was in recognition of the landowner's title and right to possession. 260 Ala. at 392, 71 So. 2d at 97.
Whether the rule of Ayers or Benson is controlling in a particular case depends upon the character and use of the road in question. Consequently, the precise question presently before this Court in the instant case is whether there is evidence in the record of the character and use of the road in question which will support the trial court's decree under the Ayers standard. Unless such evidence is lacking or the court's findings are otherwise "plainly and palpably erroneous and contrary to the great weight of the evidence" [Garrison v. Grayson, 284 Ala. 247, 249, 224 So. 2d 606, 607 (1969)], the trial court's decree must be affirmed. Having accorded the trial court's determination a presumption of correctness, we now affirm that determination on the basis that there is sufficient evidence in the record to support the trial court's findings.
To justify application of the Ayers standard, there must have been evidence in the record which supported the contention that the road in question was of the "open, defined" variety, "in continuous use by the public as a highway ... for... twenty years." Ayers, supra. Although the record included evidence to the contrary, it also included substantial evidence that the road does meet the Ayers requirements. For example, several witnesses testified that the road is "well-defined," that they have never known it to be blocked, and that it has been in continuous use by the public for over 20 years.
Of course, the weight and credibility of witnesses is for the trial court's determination. On this appeal, this Court must determine whether the trial court's decree is supported by the evidence. Moreover, the record reflects that many witnesses, in response to questions, gave answers which are meaningless to us since we did not see the pointing finger "(Indicating)" or "right here" or "you see. (Indicating)," instances of which are replete in the record. The trial judge was not so limited. Morris v. Morris, 290 Ala. 41, 273 So. 2d 203 (1973).
Whether Penn sustained injury sufficiently "different, not merely in degree, but in kind from that suffered by the public at large" [Ayers, 260 Ala. at 892, 71 So. 2d at 98] as to justify the awarding of an injunction, is another question which *769 must be resolved by an examination of the record. Although, upon an examination of the record, we find some evidence to the effect that Penn had obtained some access to his land by means of an easement across the private lands of another, such evidence is inconclusive particularly in view of the record's numerous references to "here," "(Indicating)," etc., heretofore referred to. Moreover, there is evidence that this is the only direct access from his property to a public road. This evidence is sufficient to support the trial court's decree.
This Court has stated that it is "committed to the rule that if the obstruction forces the owner of the land out of his direct, public street or road into a circuitous route in his commerce and intercourse with the outside world, this is a special injury to him not suffered by the general inhabitants of the state, county or city." Purvis v. Busey, 260 Ala. 373, 378, 71 So. 2d 18, 22 (1954). Because Penn's injury fits within the Purvis rule, the case for injunctive relief is justified.
Therefore, we hold that the trial court did not err in awarding the injunction or in applying the Ayers standard.
A final contention is made by the Foundation that the existing public easement, if any, cannot be changed or enlarged by Penn. We agree. See Lindsey v. Shaw, 210 Miss. 333, 49 So. 2d 580 (1950); Moss v. Vance, 288 Ala. 224, 259 So. 2d 252 (1972). However, the evidence on this issue was conflicting. There was sufficient evidence for appellee Penn on this issue to support the trial court's decree.
Having considered all the contentions of the Foundation, and finding no reversible error in any of them, we have concluded that the decree of the trial court should be affirmed.
Affirmed.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | December 18, 1975 |
478f6e17-e89a-487c-ad0f-2c347b3a1d5e | Chambers v. Culver | 272 So. 2d 236 | N/A | Alabama | Alabama Supreme Court | 272 So. 2d 236 (1973)
Bernard CHAMBERS
v.
Larry Floyd CULVER.
SC 49.
Supreme Court of Alabama.
January 18, 1973.
*237 Smith & Smith, V. Cecil Curtis, as Guardian Ad Litem, Phenix City, for appellant.
Pope & Floyd, Phenix City, for appellee.
McCALL, Justice.
The defendant below appeals from a judgment, rendered on a jury verdict awarding damages in a personal injury action, arising out of a collision between an automobile being driven by the defendant and the appellee's motorcycle.
Around 8:00 on the night of Easter Sunday, April 11, 1971, the appellee was operating his motorcycle in a southerly direction on Seale Road in Phenix City, Alabama. The appellant was approaching him in a northerly direction on this same road. At a point just opposite a service station into which the appellant was turning or about to turn, on his left, a collision occurred between the two vehicles. This resulted in the injuries complained of by the appellee. The action is laid in a single amended count, charging the appellant with simple negligence. The evidence for the appellee tended to show that he was following an automobile in his lane of traffic, and after the automobile ahead of him had met and passed the appellant's automobile, waiting in the opposite lane of the road, the appellant turned suddenly and directly in front of the appellee causing his motorcycle to collide with the automobile's right front fender.
The appellant and some of the witnesses in his behalf testified that after the accident, there was evidence of some food and a milk shake spilled about the hood or windshield of the automobile. The appellant contended in support of his plea of contributory negligence that the appellee was eating a hamburger and looking down just before the collision and that this caused the accident, insisting that the appellee ran his motorcycle into the opposite lane of traffic in which appellant was stopped, waiting for approaching traffic to clear so that he might cross and enter the service station. There also was some testimony that after the accident the automobile was moved somewhat by a wrecker, then put back down at the direction of the appellant's brother, and then again moved onto the service station lot. The point of collision with reference to the center line of Seale Road was thus in dispute.
The appellant's assignment of error I is the refusal of the trial court to grant his motion for a new trial. The ground in the motion which appellant first argues is the refusal of the court to give appellant's requested written charge No. 2 which reads as follows:
Appellant's assignment of error II contains this same ground.
This court has frequently said that the giving or refusal of "unavoidable accident" or "mere accident" charges to the jury in actions involving motor vehicle collisions does not constitute reversible error. *238 Isay v. Cameron, 285 Ala. 164, 229 So. 2d 916; Riddle v. Dorrough, 279 Ala. 527, 187 So. 2d 568; Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277; Socier v. Woodard, 264 Ala. 514, 88 So. 2d 783; Conner v. Foregger, 242 Ala. 275, 7 So. 2d 856. The better practice seems to be to refuse such charges. Riddle v. Dorrough, supra. The propriety of the court's refusal to give the appellant's requested written charge No. 3, a "mere accident" charge, is covered by these same above cited cases, hence, the court did not commit error in either instance of refusal.
The only other requested written charges of the appellant, the refusal of which he argues as constituting error, are those, numbered 4, 5, 6 and 9. At the outset, it is to be noted that in each of these charges, the denial of a jury verdict in favor of the plaintiff is hypothesized upon the jury's "belief" from the evidence, rather than the jury's being "reasonably satisfied" from the evidence. Aside from the possibility of other objections, suffice it to say it was not error to refuse these charges, which were not affirmative in nature. We have said that a judgment would not be reversed for either the giving or the refusal of "belief" charges. Sovereign Camp, W. O. W. v. Sirten, 234 Ala. 421, 175 So. 539; Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616; New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25, rev'd on other grounds, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686; Prince v. Bryant, 274 Ala. 134, 145 So. 2d 837; Locklear v. Nash, 275 Ala. 95, 152 So. 2d 421; Deamer v. Evans, 278 Ala. 35, 175 So. 2d 466; Barnes v. Haney, 280 Ala. 39, 189 So. 2d 779.
During the trial the appellant sought to have his mother Jessie Chambers testify in impeachment of the witness Elvin Creel. The nature of the impeachment was apparently to show that on a former occasion, the witness Creel had made an out of court statement that he was not actually a witness to the accident. While on the stand during the trial, Creel was asked on cross-examination by appellant's attorney: "Did a colored woman come to you immediately after the accident and ask you if you were a witness?" His reply was: "A colored woman hasn't said a word to me that whole night, Mister, no way concerning the accident, no way, shape, form, or fashion." Thus, the substantive question of whether he had denied being a witness to the wreck was averted. Appellant did not go further and ask Creel directly if he had not on that previous occasion stated that he was not a witness. Subsequently, on direct examination of the impeaching witness, she testified that she had indeed talked to Creel shortly after the time of wreck, which thereby put that issue of the witness's credibility before the jury. She was asked: "Did you ask him whether he was a witness, Jessie?" Without objection, she answered in the affirmative. The witness was next asked: "What did he (meaning Creel) say?" The court would not permit the impeaching witness to answer the last question because the appellant had not laid the proper predicate on prior cross-examination of Creel as to any previous inconsistent out of court statement on the subject. The exclusion of this sought after evidence is assigned as error.
We think that when the witness Creel answered that he had not talked with "any colored woman" at all, he did not respond to the part of the question which asked if he had been a witness; and, Creel, in fact, was never asked on cross-examination if he had not on that former occasion denied being a witness. Appellant could, at the time of the trial, have asked Creel if he made the prior statement desired to be attributed to him, and then later have offered the impeaching testimony. Where a witness is not first interrogated as to the inconsistent out of court statement attributed to him, no predicate is laid for the introduction of that conversation. Gilyard v. State, 98 Ala. 59, 13 So. 391; Williams v. Oates, 212 Ala. 396, 102 So. 712. Since no sufficient predicate was laid, there was no error in refusing to admit *239 the testimony sought by the question propounded to the witness Jessie Chambers, viz: "What did he (Creel) say?"
There was testimony to the effect that, immediately before the collision, the appellee was operating his motorcycle looking down and holding a sack in one hand and holding the other to his mouth, eating something. The witness Jessie Chambers arrived at the scene of the accident after its occurrence and after the automobile had been moved onto an adjacent filling station lot. She testified that she reached the scene shortly after the accident happened. The appellant sought to have her testify that she saw the automobile with some food (a sandwich) on it, contending that this would be a substantiation of other similar testimony that already had been introduced. The apparent purpose of the proffered testimony of this witness was to show that the food fell from the appellee's person as he was being catapulted over the hood of the automobile upon the impact of collision. The appellee admitted that he had the food in a paper sack, attached to the motorcycle, but he denied having any of it in his hands. The court would not permit the witness to testify as to the condition of the automobile found upon her arrival at the scene.
The evidence sought to be elicited from this witness was in substantial accord with the testimony of three other witnesses who testified that they saw the collision, and that there was a hamburger or sandwich on the hood or windshield of the automobile, after the accident. Two of them stated that this food had been bitten into or partially eaten. We do not think that the court erred in refusing to permit the witness Jessie Chambers to testify on the same subject of other testimony. Even if it were error to exclude this testimony on the grounds stated, it was harmless error where such evidence was already admitted at another time and in another form. Cole v. Louisville & N. R. R. Co., 267 Ala. 196, 100 So. 2d 684; Brown & Flowers v. Central of Georgia Ry. Co., 185 Ala. 659, 64 So. 581.
As a final ground for reversal of this case, the appellant argues that the trial court erred in overruling his motion for a new trial because the amount of the verdict was so excessive as to indicate passion, bias and prejudice against the appellant. There was no express evidence of any such misdoing, and the amount of $25,000 awarded the appellee in this case as compensatory damage does not, in our opinion, carry internal evidence of intemperance in the minds of the jury. Further, when the presiding judge refuses to grant a new trial because of the amount recovered, a favorable presumption, attending the correctness of the verdict, is thereby strengthened, State v. Farabee, 268 Ala. 437, 108 So. 2d 148, Birmingham Electric Co. v. Howard, 250 Ala. 421, 423, 34 So. 2d 830, and see McEntyre v. First National Bank of Headland, 27 Ala.App. 311, 171 So. 913, and, on review, we will not overturn the verdict of the jury or reverse the ruling of the trial court for refusing the new trial unless it clearly appears that the verdict was the result of inadvertence or inattention, or capricious disregard of the evidence, or was infested with bias, passion, or other improper motive, and that the excessiveness of the verdict was due thereto. Birmingham Electric Co. v. Howard, supra; Alabama Gas Co. v. Jones, 244 Ala. 413, 13 So. 2d 873; Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447; compare F. W. Woolworth Co., Inc. v. Erickson, 221 Ala. 5, 127 So. 534.
As a result of the accident, the appellee received a severe injury to his right leg. A number of the important ligaments associated with the knee were torn and had to be surgically repaired while he was under a general anesthetic in an operation described by the surgeon as serious and requiring about two hours. His leg was in a leg-length cast for some six weeks after the accident and he was unable to walk without the aid of crutches for four months. The appellee's trade as an automobile *240 transmission repairman required his squatting, kneeling and lifting heavy objects. Up to the time of trial, about seven months after the accident, he was physically unable to return to his former employment though he had attempted to do so. He walked with a limp and had swelling in his knee. He was still under his doctor's care and was undergoing physical therapy and performing daily exercises to rebuild the muscles in his leg. At the time of the accident the appellee's gross earnings were $125 a week. He had recovered to the extent that he averaged $25 to $30 a week doing mechanical work at his home. Six months after the accident, his physician testified the appellee had a present seventy-five percent disability, a five degree lack of extension of his knee, with possible full function of his knee to be restored within a year to eighteen months, and a possible twenty-five or thirty-five percent degree of permanent disability of his knee.
According to the appellant, appellee's actual damages, including doctor's bill, loss of wages, and damage to his motorcycle, totaled $4,750. A possible second operation at a cost of $600, hospitalization, and length of disability were also testified about, as well as the pain and suffering incurred by the appellee. Under all of the evidence offered on the subject of damages, we are unwilling to say that the amount of the verdict was excessive so as to demonstrate that the jury was motivated in its rendition by passion, bias and prejudice against the appellant.
The judgment is due to be affirmed.
Affirmed.
BLOODWORTH and FAULKNER, JJ., concur.
COLEMAN and JONES, JJ., concur specially.
COLEMAN, Justice (concurring specially):
I agree with the ruling, sustaining objection to the testimony of Jessie Chambers that a hamburger was on the hood of the automobile, was error without injury. I do not agree that it is always harmless error to sustain objection to testimony merely on the ground that the same testimony has been given by another witness.
I agree with the other holdings set out in the opinion of McCALL, J.
JONES, J., concurs. | January 18, 1973 |
1f8dbd37-12da-4ceb-8676-aee3e2da9771 | City of Dothan v. Dale County Commission | 324 So. 2d 772 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 772 (1975)
CITY OF DOTHAN, Alabama
v.
DALE COUNTY COMMISSION, the governing body of Dale County, Alabama, et al.
SC 1391.
Supreme Court of Alabama.
December 18, 1975.
*773 Robert A. Huffaker, Montgomery, Wade H. Baxley, Dothan, for appellant.
Joseph W. Adams, Ozark, Walter J. Knabe and William K. Martin, Montgomery, for appellees.
BLOODWORTH, Justice.
The City of Dothan appeals from a final order of the Probate Court of Dale County, dismissing Dothan's request to call an annexation election [pursuant to the provisions of Tit. 37, § 138 et seq., Code of Alabama 1940 (Recomp.1958)] to annex lands in Dale County, including the Dothan Municipal Airport. We reverse and remand.
The circumstances under which the instant controversy arose had their origin in a meeting of the Board of City Commissioners of Dothan on September 20, 1974. At that meeting, two resolutions were passed which are significant for purposes of the instant appeal. Resolution No. 4852 calls for the expansion of Dothan's corporate limits through the annexation of a land corridor contiguous to established Dothan corporate limits. At that time, Dothan's city limits lay wholly within the boundaries of Houston County. The land annexed under Resolution No. 4852 lies primarily in Houston County but also includes a small area in Dale County. The second resolution, Resolution No. 4854, calls for the annexation of land lying in Dale County, the bulk of which is composed of land owned by the Dothan-Houston County Airport Authority, a public corporation. No challenge was voiced to these proposed annexations until action was taken on the second resolution.
The annexation of Houston County territory, proposed under the first resolution, was pursued under the provisions of Tit. 37, § 137(1), Code of Alabama 1940 (Cum.Supp.1973), and became effective upon publication on September 23, 1974, as provided under § 137(1). On September 25, 1974, the second resolution, No. 4854, also pursued under § 137(1), was filed with the Judge of Probate of Dale County. (Under § 137(1) land contiguous to a city's corporate limits, if it does not lie "within the corporate limits or police jurisdiction" of another city, may be annexed "[w]henever all of the owners of property" to be annexed file a signed petition requesting annexation and "the governing body [of the annexing city] adopts an ordinance assenting to the annexation....") On October 4, 1974, various *774 parties (hereinafter referred to as "opponents") challenged the validity of Dothan's request for an annexation: the Dale County Commission; the Town of Napier Field and its Town Council; the Town of Grimes and its Town Council; and certain residents who are electors and property owners of both towns, both counties, and the City of Dothan. Resident property owners of Dothan were later joined as petitioners. Opponents filed a Petition to Dismiss Request for Calling of Annexation Election.
On October 10, 1974, in response to an objection that part of the proposed annexation lies within the police jurisdiction of the town of Grimes and Napier Field, Dothan filed its Resolution No. 4870, superseding the resolution filed earlier, i.e., Resolution No. 4854. The effect of this action was to abandon the attempt at annexation under § 137(1), as proposed by the earlier resolution, No. 4854, and to substitute the annexation Resolution No. 4870, under the provisions of Tit. 37, § 138 et seq. [Tit. 37, § 138 et seq., do not expressly forbid a city's annexation of property lying within the police jurisdiction of some other city.]
In response to the challenges asserted by opponents, Dothan filed a "Motion to Strike Petition to Dismiss Request For Calling of Annexation Election Or, In the Alternative, Motion to Discontinue Hearing." In its motion to strike, Dothan contended, first, that the Judge of Probate's duties under § 138 et seq. are purely ministerial and do not give him power to conduct a hearing to consider the objections raised by opponents' Petition to Dismiss and, second, that none of the opponents have standing to challenge Dothan's request for the calling of an annexation election.
At the hearing, the Probate Court denied Dothan's motion to strike and entered an order dismissing Dothan's request for an annexation election. The Probate Court based its order on its findings that: (1) it had "the power, authority and jurisdiction to consider Opponents' challenge to the validity of Dothan's ... request for... an annexation election"; (2) Dothan's annexation of the Houston County corridor was a sham and subterfuge which does not satisfy the contiguity requirement of Tit. 37, § 152 and, furthermore, that the approximately 350-foot common boundary between the Houston County annexation and the Dale County annexation does not satisfy the contiguity requirement because the legislature intended "a substantial common boundary"; (3) the proceedings whereby Dothan purportedly annexed the Houston County corridor are void, and, being invalidly annexed, the corridor cannot be relied upon to satisfy the contiguity requirement for annexation of the Dale County land; (4) the legislative intent underlying Tit. 37, § 152, prohibits annexation by one city of land lying within the police jurisdiction of any other city; and (5) the annexation proposed by Dothan is in violation of the legislative intent that municipal annexations not destroy the municipality's conformity to "legal" and "popular" notions of what constitutes a municipality. [The court refers to the following factors as determinative of whether an annexation violates the legislative intent: configuration of the annexation, substantiality of the common boundary, number of voters residing on the land proposed to be annexed, existence of streets or roads running through the proposed annexation connecting it to the city. The court pointed out that only two persons would be qualified to vote as residents of the land proposed to be annexed and that there are no roads or streets connecting Dothan and the proposed annexation.]
Dothan appeals on the grounds that the court exceeded its authority: A. by requiring a "substantial common boundary" in the absence of any such express requirement by the legislature; B. by ruling that a municipality cannot annex territory within *775 the police jurisdiction of any other municipality in a similar absence of express legislative directive; C. by determining the Houston County annexation was void thus permitting an impermissible collateral attack; and, finally, D. by holding that the proposed annexation violated legislative intent.
We agree with the City of Dothan that the Probate Court of Dale County erred to a reversal on each of these grounds. Since a resolution of these issues is determinative of this appeal, we see no need to consider any other contentions raised by Dothan. We now proceed to a discussion of the aforementioned issues.
A. The requirement of Tit. 37, § 152, is simply that the territory proposed to be annexed be "contiguous to the boundary of the city at some point." [Our emphasis.] The map and legal description accompanying Dothan's resolution shows that there is approximately a 350-foot common boundary between the territory proposed to be annexed and the city boundary. This, we hold, is ample satisfaction of the requirement of "contiguity" under § 152, supra.
There is no requirement of "substantial common boundary" as the Probate Court seems to consider necessary. In the terms of this statute, "contiguity" means a "touching" at some point. State ex rel. Milan v. Masters, 207 Ala. 324, 93 So. 14 (1922).
B. By the express terms of § 152, Code, the property proposed to be annexed "may extend to or around the boundary line of any other city, but is not to embrace any territory within the corporate limits of another city." [Our emphasis.] It is self-evident that there is a clear ditinction between "corporate limits" and "police jurisdiction." See Tit. 37, § 9, Code of Alabama 1940 for a definition of the latter term.
It would seem that had the legislature determined to exclude territory within the police jurisdiction of one city from being annexed by another, it would have been a simple matter to have so provided. Such was the legislative purpose as expressed in Tit. 37, § 137(1) [another annexation statute] wherein it is expressly provided that property to be annexed within that provision "not lie within the corporate limits or police jurisdiction of any other municipality." See our recent decision, State ex rel. City of Birmingham v. Tarrant City, 294 Ala. 304, 315 So. 2d 583 (1975), construing this section. There, this Court suggested that the section does not permit annexation under this statute in cases of overlapping police jurisdictions. In these cases, the Court added, "annexations must follow conventional procedures."
C. In determining that the Houston County annexation was void, the Probate Court of Dale County erred as this constituted an impermissible collateral attack thereon.
Although admitting their attack is collateral rather than direct, opponents argue that the annexation proceedings in Houston County were "void" not merely "voidable," and therefore subject to attack in a collateral proceeding. We think the proceedings were not "void." Alexander v. Nelson, 42 Ala. 462 (1868). "[T]he law does not favor collateral attack on a municipal corporation in the exercise of [its] police powers...." Chadwick v. Town of Hammondville, 270 Ala. 618, 622, 120 So. 2d 899, 902 (1960). Being at most "voidable" merely, opponents' remedy would seem to be, as Dothan suggests, a direct attack in a court of general jurisdiction.
D. The Probate Court also held that the annexation was void because its irregular shape and its lack of homogeneity with the rest of the city constitutes a violation of the legislative intent.
*776 We know of no statutory mandate that the municipal boundaries of all territories sought to be annexed must form a regular shape. Tit. 37, § 135(10) does require that such annexed territory "form a homogeneous part of the city or town." But, this is not to imply that homogeneity demands regularity of shape of the boundaries of the municipality. "Homogeneous" is defined as "of a similar kind or nature... of uniform structure or composition... consisting of uniform elements (as of people or groups with similar background)...." Webster's Third New International Dictionary, 1966.
Had the legislature been so disposed as to require all municipalities to possess boundaries of uniform and regular width and length it might have said so.
Other jurisdictions have permitted corridors and irregularly shaped boundaries such as those in the instant case. See Tovey v. City of Charleston, 237 S.C. 475, 117 S.E.2d 872 (1961); People v. City of Palm Springs, 51 Cal. 2d 38, 331 P.2d 4 (1958); City of Burlingame v. San Mateo County, 90 Cal. App. 2d 705, 203 P.2d 807 (1949).
Clearly, the proposed annexation is no sham or subterfuge because the City of Dothan has a valid municipal interest in its own municipal airport.
Therefore, we have concluded that there is no violation of the legislative intent in the proposed annexation.
Having then concluded that the Probate Court of Dale County erred in holding that Dothan's request for the calling of an annexation election is invalid and erred in dismissing the request, we reverse and remand for the entry of a judgment in conformity with this opinion.
Reversed and remanded with instructions.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | December 18, 1975 |
7efdca44-5606-4234-a119-dcabf0b35155 | Board of Com'rs, Ala. St. Bar v. State Ex Rel. Baxley | 324 So. 2d 256 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 256 (1975)
BOARD OF COM'RS OF the ALABAMA STATE BAR
v.
STATE ex rel. William J. BAXLEY, Attorney General, et al.
SC 1207.
Supreme Court of Alabama.
December 4, 1975.
Rehearing Denied January 9, 1976.
*257 M. R. Nachman, Jr., William H. Morrow, Jr., Montgomery, for appellant.
William J. Baxley, Atty. Gen. and Winston T. Lett, and Jerry L. Weidler, Asst. Attys. Gen., for the State, appellee.
SHORES, Justice.
The attorney general filed a bill for declaratory judgment against the Board of Commissioners of the Alabama State Bar (hereinafter Board) for a determination that Act No. 750, Acts of Alabama 1973, Regular Session, page 1123, approved August 30, 1973, is constitutional; that the Board be required to comply with the act; and that Rule IV(D) of the Rules Governing Admission to the Bar of Alabama is unconstitutional. Act No. 750 provides in part:
Since 1934, the Board of Commissioners of the Alabama State Bar has followed the practice of limiting to three the number of times one may sit for the bar examination. Rule IV(D), as it now exists, was passed by the Commissioners on July 22, 1961, and provides:
The complaint was dismissed for lack of an actual controversy of justiciable character and because of a lack of jurisdiction over the subject matter. Subsequently, two persons were allowed to intervene who had failed the bar examination three times and were not allowed to take it for a fourth time under the provisions of Act No. 750.
The trial court observed the long history of legislative enactments governing admission to the bar and the lack of any standards adopted by the courts of Alabama and concluded that Act No. 750 was constitutional. From this judgment the Board appealed.
It is the contention of the Attorney General and intervenors that the legislature may exercise regulation over bar examinations if such regulation does not impair the judicial branch's exercise of its inherent functions; that the legislature has done so for over fifty years; that the judiciary has acquiesced in such regulation; and that the Board is a legislatively created authority and not an arm of the Supreme Court.
*258 The Board submits that Act No. 750 violates Sections 42 and 43 of the Alabama Constitution as an attempted exercise by the legislature of judicial functions and as an invasion of the inherent powers of the judiciary; that the legislature may establish only minimum standards for the practice of law; that the Board is an arm of the Supreme Court and its standards for admission are court-made rules. It also argues that Act No. 750 is unconstitutionally vague, uncertain, arbitrary, and capricious.
The single issue presented by this appeal is whether establishing rules governing admission to the bar is a judicial function and, if so, is the legislature, by Act No. 750, exercising a judicial function in violation of the admonitions and prohibitions contained in Sections 42 and 43 of the Constitution of 1901.
These sections of the Constitution provide in part:
The Board of Commissioners of the Alabama State Bar was created by Act No. 133, General Acts of Alabama 1923, page 100, approved August 9, 1923 (Code of Alabama 1940, Title 46, § 21). This act was found by this court to be constitutional in Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933). In that case, this court looked to Section 139 of the Alabama Constitution,[1] which provided:
The court recognized that the powers conferred on the Board were judicial in character, but concluded that under Section 139 of the Constitution there was express authority for creating the Board and conferring on it judicial functions. However, the court noted that "... the rules and regulations which may be formulated and adopted by the board shall not become effective until the same shall have received the approval of this court, and the right of this court to approve or disapprove all or any part of the rules so formulated and adopted by the board is fully reserved to this court...." (Emphasis Added) Ex parte Thompson, supra, at 124-25, 152 So. at 238. And in this same opinion, at page 126, 52 So. at page 240, referring to this court's power and responsibility to admit and disbar attorneys, the court said "`... This inherent power of the court cannot be defeated by the legislative or executive department....'"
It is true that this court has recognized legislative power to prescribe minimum requirements for admission to the bar so long as they do not interfere with the inherent power of the court to determine who shall practice before it. Ex parte Dozier, 262 Ala. 197, 77 So. 2d 903 (1955). But the fact that this court has not been as active in formulating rules governing admission to the bar (as it has in adopting rules governing the practice of law) but rather has left this function largely to the *259 Board of Bar Commissioners, acting on its behalf, does not mean that it has abrogated its authority and responsibility to the legislature, if in fact such power is inherent to the judiciary. In fact, it cannot relinquish its authority to another branch of government under the express provisions of the constitution of this state.
The Supreme Court of Georgia, responding to a charge similar to the one made here, that judicial acquiescence in legislative activity in this area has diluted the court's inherent power, said that judicial recognition of such legislative acts did "... not mean that this court intended to, or even could, relinquish this judicial responsibility to the legislature." Wallace v. Wallace, 225 Ga. 102, 111-12, 166 S.E.2d 718, 724 (1969).
This brings us to the question of whether regulation of admission to the bar is an "inherent" power of the judiciary. It has been said that "What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution." State v. Hormon, 31 Ohio St. 250, 258 (1877).
A brief examination of the common-law history of regulating admissions to the bar and the practice of law reveals a division of responsibilities in the English legal profession. In the early days of the profession there was the "attorney," who served as a substitute for the litigant and the "advocate" or "barrister" who supported one's "... cause by his learning, ingenuity and zeal." 2 W. Holdsworth, A History of English Law 311 (4th ed. 1936). In 1292, Edward I decreed that admissions to the profession should be regulated and delegated to his justices the task of appointing as attorneys those with sufficient learning and skill. Rolls of Parliament, i. 84, cited in Vol. I, F. Pollock & F. W. Maitland, The History of English Law 216, n. 2 (2d ed. 1898).
By 1403, the increasing number of attorneys forced Henry IV to order his justices to examine all attorneys and put on the roll only those with good character and sufficient learning. 4 Henry IV, c. 18. See also Lee, The Constitutional Power of the Courts Over Admission to the Bar, 13 Harv.L.Rev. 233 (1899). The courts also issued orders regulating the conduct of the profession as evidenced by orders issued in 1452. Praxis Utriusque Banci 26, cited in 2 W. Holdsworth, A History of English Law 505, n. 3 (4th ed. 1936). While Parliament legislated in this regard with respect to the numbers to be allowed admission as attorneys, Parliament did not attempt to determine the amount of learning or qualifications to be required of an attorney.
The barristers were also subject to court control, though some argue only indirectly. See Comment, Admission to the Bar and the Separation of Powers, 7 Utah L.Rev. 82 (1960-61). The barristers came from educational societies called the Inns of Court. The barrister's call to the bar came from the Inns of Court; however, if the Inns refused to call a person to the bar, the remedy was an appeal to the judges. Lee, The Constitutional Powers of the Courts Over Admission to the Bar, supra, at 240.
Additionally, the judges regulated the number of students admissible to the Inns and thus the number admissible to the barthe course of study, and even morals and mode of dress. See Note, Legislative or Judicial Control of Attorneys, 8 Fordham L.Rev. 103, 104 (1939): Indeed, there is speculation that the Inns were developed through the efforts of judges and Serjeants to improve the profession. Holdsworth, supra, at 496.
It has been observed "The English courts from time to time, by virtue of their own rules, without any legislation, regulated the admission and disbarment of attorneys." Lee, The Constitutional Power of *260 the Courts Over Admission to the Bar, supra, at 244.
Various rules adopted from 1573 to 1704 can be found in Maugham on Attorneys, 15-20, App. XIV-XX (1825). Lee, supra, at 244. Parliament legislated upon the subject, but the legislation was to exclude the unfit. The statutes always recognized the admission of attorneys as a matter of judicial discretion. Lee, supra, quoting Maugham, Attorneys and Solicitors 9 (1825).
It thus appears that "... although the profession had its origin and mature development in a country where constitutional divisions of government were unknown, its supervision and control at every stage were handed over to the judges, until by long continued use they came to constitute recognized prerogatives belonging to the judiciary...." Green, The Courts' Power Over Admission and Disbarment, 4 Tex.L.Rev. 1,7 (1925).
It is clear, therefore, that for several centuries, the English considered the regulation of admission to practice before the courts to be a judicial function, exercisable only by the courts.
In this country, unlike England, it is a characteristic of both the national and state governments to divide governmental functions into three distinct, separate and equal branches. One cannot read The Federalist papers without being struck with the concern and attention which the framers of our constitution devoted to the principle of separation of powers. It was agreed by all "... that the legislative, executive, and judiciary departments ought to be separate and distinct." The Federalist No. 47 (J. Madison).
Thomas Jefferson believed that concentrating the powers of the three departments in the same hands was "... precisely the definition of despotic government." (Notes on the State of Virginia, p. 195, quoted in The Federalist No. 48 (J. Madison). He said that that was not the form of government for which this country fought but rather "... one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct ..."
In commenting on Jefferson's draft of a constitution for Virginia, which like Alabama's, contains a provision for separation of powers, the author of The Federalist No. 49 (Hamilton or Madison) said:
Unquestionably, the establishment of three separate but equal and independent branches of government was considered by the writers of the American Constitution as essential to a republican form of government, guaranteed to the states by Article IV, Section 4. One writer has said that there are four essential characteristics of a republican form of government.
The framers of the Constitution of the United States believed that the real danger in disturbing the system of checks and balances provided for in the separation of the government into three equal branches was the danger of changing the form of government to something other than the republican form. This division of power, and the system of checks and balances inherent in it, is said to be America's chief contribution to the science of government. State v. Fulton, 99 Ohio St. 168, 124 N.E. 172 (1919). The Supreme Court of the United States, speaking through Justice Miller in Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 190, 26 L. Ed. 377 (1880), said on the subject:
Does regulation of admission to practice law fall within the judicial function? In Ex parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L. Ed. 565 (1856), the Supreme Court found it to be "... well settled ... that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed...."
In Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366 (1866), the Supreme Court was careful to note that admission to the bar "... is not ... a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases...." (71 U.S. (4 Wall.) at 378-79).
In every state of the union the judiciary exercises regulatory control in admissions to the bar.[2]
*262 Act No. 750, attempting as it does, to remove standards for admission to the bar established by the Board of Bar Commissioners of the Alabama State Bar, acting as an arm of this court, is an effort to perform a judicial function in contravention of Section 43 of the state constitution. This act, unlike Act No. 133 creating the Board of Bar Commissioners found constitutional by this court in Ex parte Thompson, supra, does not invest "persons" with "powers of a judicial nature" as permitted by Section 139 of the Constitution, but instead is an effort by the legislature itself to exercise powers of a judicial nature. This act is not, as the attorney general claims, merely "... amendatory legislation to the statutes creating the Board to further define its regulatory and administrative duties." The act is in direct conflict with Rule IV(D) promulgated by the Board in aid of this court and, as such, is a direct encroachment upon the undisputed inherent power of this court to determine who shall practice before it. Act No. 750 removes minimum standards established by the Board as an arm of this court.
We have repeatedly held, as recently as April 10, 1975, in Simpson v. Alabama State Bar, 294 Ala. 52, 311 So. 2d 307, 309:
Although the Board was created by the legislature, it was created as an arm to this court and any action by the Board is subject to review or approval by this court. The legislature has not created an entity which is not subject to control or regulation, the Board is subject to the control of this court. Act No. 750 would dilute that control, and hence invades the judicial sphere.
*263 This court is compelled, under our system of government, to guard against such encroachments by one branch of government into the sphere reserved to another equal branch. We hold, therefore, that Act No. 750 violates Sections 42 and 43 of the Constitution of 1901.
The intervenors and the attorney general point out, and it is not contested by the Board, that Rule IV(D) is not absolute, as it now stands, and provides for examinations in excess of three upon approval by the Board. The record shows that in the past ten years three applicants have been permitted to take the bar examination more than three times, upon a showing of "extraordinary, mitigating circumstances." Of these three, only one applicant passed the examination. The intervenors complain of the absence of a specific written rule spelling out what constitutes "extraordinary, mitigating circumstances."
Approximately two-thirds of the states in this country provide for a limited number of times which an applicant may stand for the bar examination. Many provide for three times, as does Alabama. Some of these states, in allowing an additional attempt, require approval of the various boards, some require approval of the Supreme Court, and some require the passage of time between the last permitted attempt and any subsequent one which may be allowed. Many require a showing of additional study as a condition to applying for permission to take the examination in excess of the times permitted.
We are in agreement with the intervenors that, whatever standards are used to determine whether an applicant should be allowed to take the examination in excess of three times, those standards must comport with equal protection and due process safeguards. The Supreme Court of the United States has said, "We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner ..." Konigsberg v. State Bar of California, 353 U.S. 252, 273, 77 S. Ct. 722, 733, 1 L. Ed. 2d 810 (1957).
However, these intervenors have not shown that the Board has acted arbitrarily or discriminatorily in denying them permission to take the bar examination in excess of three times, nor have they shown any extraordinary or mitigating circumstances which would bring them within the existing criteria, as general as it is. They base their application to take the examination a fourth time squarely upon Act No. 750. That act is in violation of the Constitution of Alabama. Therefore, the intervenors most, if they wish to persist in their efforts to gain permission to stand for the bar another time, show that some mitigating circumstances exist which are sufficient to persuade the Board, acting without capriciousness or discrimination, to permit them, or either of them, an additional examination.
The Board, should the intervenors or either of them apply for permission to take the bar examination another time, must determine upon the facts of each case, whether either or both intervenors have shown sufficient, extraordinary or mitigating circumstances as to indicate that circumstances existed at the last three examinations as to make it unlikely that the applicant(s) has been fairly tested as to his competency to practice law in this state, or whether subsequently the applicant(s) has acquired additional training which would render him more likely to be successful in a fourth effort to meet the requirements for admission to the bar of this state, or other good and valid reasons.
The judgment appealed from is reversed and one is here rendered in favor of appellant.
Reversed and rendered.
*264 HEFLIN, C. J., and MERRILL, BLOODWORTH, FAULKNER, JONES, ALMON and EMBRY, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially.)
I concur specifically in that portion of the majority opinion which holds that this Court has the inherent power to govern admission to the Bar.
By concurring specially, however, I do not wish to be understood as saying that I believe that the policy expressed by the legislature of allowing an applicant to take the examination more than three times is necessarily unreasonable. The applicants here, however, do bottom their right to take the examination the fourth time solely on the provisions of Act 750, and the Act does, in fact, conflict with the Bar rule. Consequently, it is my opinion that this Court must ultimately determine whether the Bar rule, or its application, denies an applicant equal protection of the laws or due process.
If the majority opinion denied the applicants the right to continue to show themselves qualified to practice law, I would have to disagree with that conclusion. But since the applicants are given an opportunity to apply again to take the examination, the way is still open for them to test not only the rule, but also its application in their individual cases, and it is my own personal opinion that if they are rejected, they may then petition this Court to review the matter in the same manner in which we review disciplinary proceedings. Cf. Ex parte Weinberg, 281 Ala. 200, 201 So. 2d 38 (1967).
Another reason why I concur specially is that I believe that the new Judicial Article, (Amendment 328, Constitution of Alabama, 1901, carried as Article VI in Vol. I of Michie's Code of Alabama 1940, Recompiled 1958, 1973 Cumulative Supplement) is controlling. In other words, the new Judicial Article restructured the court system and redistributed the "judicial power" of this state, and I believe that this case and future cases must be governed by the Article's provisions.
I also feel compelled to point out, gratuitously, I suppose, that I believe that these intervenors have certain inalienable rights and that one of these is the right to practice law, if they are qualified. Justice Collier, In Matter of Dorsey, 7 Porter 293, 381 (1838), discussed the free choice of a citizen to practice law if he so desires. He wrote:
I agree with Justice Collier, that any law or rule must not unreasonably impair a citizen's right to make his choice of a profession.
[1] Section 139 of the Constitution of 1901 has now been superseded by Amendment 328 to the Constitution of 1901proclaimed ratified December 28, 1973. (See specifically Article VI, § 6.01(a) and (b).)
[2] 1. AlabamaIn re Sullivan, 283 Ala. 514, 219 So. 2d 346 (1969);
2. AlaskaApplication of Houston, 378 P.2d 644 (Alas.1963);
3. ArkansasMcKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973);
4. ArizonaIn re Bailey, 30 Ariz. 407, 248 P. 29 (1926);
5. CaliforniaBrydonjack v. State Bar of California, 208 Cal. 439, 281 P. 1018 (1929);
6. ColoradoIn re Bar Association, 137 Colo. 357, 325 P.2d 932 (1958);
7. ConnecticutHeiberger v. Clark, 148 Conn. 177, 169 A.2d 652 (1961);
8. DelawareIn re Member of Bar, 257 A.2d 382 (Del.Supr.1969);
9. FloridaFuller v. Watts, 74 So. 2d 676 (Fla.1954);
10. GeorgiaWallace v. Wallace, 225 Ga. 102, 166 S.E.2d 718 (1969);
11. HawaiiIn re Integration of Bar of Hawaii, 50 Hawaii 107, 432 P.2d 887 (1967);
12. IdahoApplication of Kaufman, 69 Idaho 297, 206 P.2d 528 (1949);
13. IllinoisIn re Anastaplo, 3 Ill. 2d 471, 121 N.E.2d 826 (1954);
14. IndianaState v. Moritz, 244 Ind. 156, 191 N.E.2d 21 (1963);
15. Iowa Rowen v. LeMars Mut. Ins. Co. of Iowa, 230 N.W.2d 905 (Iowa 1975);
16. KansasState v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974);
17. KentuckyKy.Rev.Stat., Tit. 4, § 30.030;
18. LouisianaEx parte Steckler, 179 La. 410, 154 So. 41 (1934);
19. MaineApplication of Feingold, 296 A.2d 492 (Maine 1972);
20. MarylandPublic Ser v. Commission v. Hahn Transportation, Inc., 253 Md. 571, 253 A.2d 845 (1969);
21. MassachusettsCollins v. Godfrey, 324 Mass. 574, 87 N.E.2d 838 (1949);
22. MichiganAyres v. Hadaway, 303 Mich. 589, 6 N.W.2d 905 (1942);
23. MinnesotaSharood v. Hatfield, 296 Minn. 416, 210 N.W.2d 275 (1973);
24. MississippiMississippi State Bar v. Collins, 214 Miss. 782, 59 So. 2d 351 (1952);
25. MissouriClark v. Austin, 340 Mo. 467, 101 S.W.2d 977 (1936);
26. MontanaIn re Unification of Montana Bar Ass'n, 107 Mont. 559, 87 P.2d 172 (1939);
27. NebraskaState ex rel. Ralston v. Turner, 141 Neb. 553, 4 N.W.2d 302 (1942);
28. NevadaPetition of Batten, 83 Nev. 265, 428 P.2d 195 (1967);
29. New HampshireHarrington's Case, 100 N.H. 243, 123 A.2d 396 (1956);
30. New JerseyNew Jersey State Bar Ass'n v. Northern N. J. Mtg. Asso., 32 N.J. 430, 161 A.2d 257 (1960);
31. New MexicoApplication of Sedillo, 66 N.M. 267, 347 P.2d 162 (1959);
32. New YorkN. Y. Const., Art. 3, § 531 (1938);
33. North CarolinaGen.Stat. of N.C., Tit. 84, § 84-23; § 84-36 (1975);
34. North DakotaN.D.Stat., Tit. 27, § 27-11-02 (1960);
35. OhioJudd v. City Trust & Savings Bank, 133 Ohio St. 81, 12 N.E.2d 288 (1938);
36. OklahomaRe Bledsoe, 186 Okl. 264, 97 P.2d 556 (1939);
37. OregonIn re Crum, 103 Or. 296, 204 P. 948 (1922);
38. PennsylvaniaIn re Olmsted, 292 Pa. 96, 140 A. 634 (1928);
39. Rhode IslandCreditors' Serv. Corp. v. Cummings, 57 R.I. 291, 190 A. 2 (1937);
40. South CarolinaCode of S.C., Tit. 56, § 56-96 (1972);
41. South DakotaIn re Hosford, 62 S.D). 374, 252 N.W. 843 (1934);
42. TennesseeCantor v. Brading, 494 S.W.2d 139 (Tenn.1973);
43. TexasBurns v. State, 76 S.W.2d 172 (Tex.Civ.App.1934);
44. VermontTaft v. Taft, 82 Vt. 64, 71 A. 831 (1909);
45. UtahNelson v. Smith, 107 Utah 382, 154 P.2d 634 (1944);
46. VirginiaCode of Va., Tit. 54, § 48 (1950);
47. WashingtonIn re Bruen, 102 Wash. 472, 172 P. 1152 (1918);
48. West VirginiaWest Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959);
49. WisconsinIn re Cannon, 206 Wis. 374, 240 N.W. 441 (1932);
50. WyomingWyoming Stat., Tit. 33, § 40 (1967). | December 4, 1975 |
eaea0f4c-adbc-46d9-9f65-1b9c239ebb1b | Reid v. United Security Life Ins. Co. | 275 So. 2d 680 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 680 (1973)
Joe W. REID
v.
UNITED SECURITY LIFE INS. CO. et al.
SC 54.
Supreme Court of Alabama.
February 22, 1973.
Rehearing Denied April 19, 1973.
S. P. Keith, Jr., Birmingham, for appellant.
Charles L. Robinson, Birmingham, for appellees.
FAULKNER, Justice.
This is an appeal from a final decree in equity rendered by the Circuit Court of Jefferson County. The sole assignment of error by appellant is that the court below erred in rendering a final decree on September 13, 1971, for only $6,281.54, when the decree should have been for $7,268.68 for 1966, and $89,590.59 for 1967, plus interest. The appellee's joinder is that there is no error in the record. We agree with the appellee and affirm the trial court.
Appellant Reid entered into a written employment agreement with appellee, United Security Life Insurance Company, in November, 1958. The agreement is not dated and is not signed. However, both parties concur that the agreement states the terms to which they agreed, and that the original agreement could not be produced at the trial.
The agreement provided that Reid was hired by United to take charge of, conduct, manage and direct United's Credit Life Department and Credit Life Business. In consideration for his services Reid was to receive 50% of the net profits realized from the Credit Life Business. "Net profits" was defined as "that amount left after *681 all expenses of the Credit Life Department are deducted from premiums received for the company from the Credit Life Department". The agreement provided that Reid was to receive an advance each month. The amount is left blank in the agreement. However, Reid was advanced $1,000.00 per month from June, 1961, until March, 1967, when United ceased to make any further advances to Reid.
The agreement further provided that United could cancel the agreement without cause by paying Reid 50% of the net profits for a period of one year from date of termination. For cause United could cancel the agreement without any payment to Reid. Cancellation of the agreement for cause became effective the date Reid was notified. United could cancel the agreement for cause because of violation of any company rule or regulation by Reid. Other reasons for cause are set out in the agreement but are not germane to the issues in this case.
The parties subsequently agreed that Reid would be paid $100.00 per month for overhead, including rent, lights, water, etc. United sometime later and without the consent of Reid tried to change the overhead expenses payable to Reid from $100.00 per month to 1% of the total overhead expenses of the company. This dispute culminated in a lawsuit in which Reid was awarded a judgment against United for $13,460.87 by the Circuit Court of Jefferson County. The trial judge's order was affirmed by this court. See United Security Life Ins. Co. v. Birmingham Trust National Bank et al., 282 Ala. 295, 211 So. 2d 139 (1968).
The parties operated under the agreement from November, 1958 until May 19, 1967, when Reid was notified by a letter from Paul T. Carr, an agent for United, that Reid's services with the company were terminated. No reason was given. The evidence is conflicting as to why Reid's services with the company were terminated. Reid contends that he was terminated without cause. The agent, Carr, testified that Reid had used a telephone in the office of a Mr. Hill. It is not stated in the record or briefs who Mr. Hill was. We, therefore, assume that Mr. Hill had an office in the company building. Carr testified that Reid violated a rule or regulation of the company by being in the company building in 1967 without the express personal approval of Carr.
Upon being notified that his services were terminated, Reid claimed he was due 50% of the net profits of the Credit Life Business for 12 months following his termination. He brought a suit in equity seeking to enjoin the cancellation of his employment agreement with United; to restore advances to him in the sum of $1,000.00 per month. Reid contended that he was entitled to the sum of $7,268.68 in 1966, and $89,590.59 for 1967.
United filed an answer and a cross-bill which averred that United entered into a reinsurance agreement with Trustee Life Insurance Company on August 28, 1967, whereby all of United's Credit Life Business was reinsured and transferred to Trustee Life, effective January 1, 1967. The prayer of the cross-bill prayed for a declaration of rights of Reid and the obligation of United to him.
Under the reinsurance agreement between United and Trustee Life, United transferred to Trustee Life all unearned premium reserves held as of January 1, 1967, which amounted to $307,658.49. Trustee Life paid United $150,000.00 in cash in full consideration thereof.
Reid contended that he was entitled to 50% of the $150,000.00 cash received by United from Trustee Life, claiming that such amount was profit. Reid contended that United had a profit of $189,152.18 for the period ending August 31, 1967. He has used the cash received by United from Trustee Life in arriving at his total. Claiming his 50% of the alleged profits, and subtracting advances received by him of $4,985.50, Reid arrived at a balance due him by United of $89,590.59 for 1967.
*682 Reid's claim of $7,268.68 for 1966 was based on alleged profit of $39,508.37, of which he was entitled to 50%, less advance by United to him in the sum of $12,485.50.
The evidence by United showed that United's profit for 1966 was $37,199.50; that Reid was entitled to 50% of that figure less advances of $12,000.00, and less other items such as supplies and licenses. The company arrived at a balance due Reid for 1966 in the amount of $5,375.58, after making the above computation.
The trial court found that Reid was entitled to receive $5,375.58 for 1966, and $905.96 for 1967, with interest at 6% per annum from January 1, 1967 as to $5,375.58 thereof, and from March 31, 1967, as to $905.96 thereof. The decree is dated September 13, 1971.
The trial court heard the cause and testimony was taken in open court ore tenus, and unless his decree is clearly contrary to the great weight of the evidence it will not be disturbed. Thomas v. Moon, 289 Ala. 680, 270 So. 2d 811 (1972).
The principal contention of Reid was that his services were terminated without cause and therefore he was entitled to 50% of the profits of United for one year following his termination. United, of course, contended that Reid's services were terminated for cause. The largest item in dispute is whether Reid, if terminated without cause, would be entitled to 50% of the sum of $150,000.00 paid by Trustee Life to United in consideration of United's transfer of its unearned premium reserves of the Credit Life Business. It is the opinion of this court that Reid would not be entitled to any part of the sum paid by Trustee Life to United. Reid's contract was for 50% of the net profits, and the agreement defined net profits as the amount left after deducting expenses from premiums received. We interpret expenses here to mean operating expenses of the company and premiums received as oprating income of the company.
The word "premium" in the law of insurance means the amount paid to the insurer by the insured for the insurance. Allstate Insurance Co. v. Board of Equalization, 169 Cal. App. 2d 165, 336 P.2d 961 (1959); State Farm Mutual Automobile Ins. Co. v. Carpenter, 31 Cal. App. 2d 178, 87 P.2d 867 (1939); Wade v. National Bank of Commerce, 144 Minn. 187, 174 N.W. 889 (1919). "Premium" has been defined as the sum which the insured is required to pay, and in its proper and accepted sense it means the amount paid to the company as consideration for insurance. 44 C.J.S. Insurance § 340 at 1302.
It is quite clear that the intention of the parties to the agreement was that Reid's compensation was an operating expense and was based on net profits received from premium income. If any profit or surplus resulted from the transfer of unearned premium reserves, it would belong to the stockholders. The term "unearned premium reserve" is a fund"reserved" to meet future liabilities on policies of insurance. The term does not apply to funds to meet ordinary running expenses of the company. Maryland Casualty Co. v. United States, 251 U.S. 342, 40 S. Ct. 155, 64 L. Ed. 297 (1920). Therefore, the trial court's computation of the amount due Reid for 1967 will not be disturbed.
The trial court found that Reid was due $5,375.58 for 1966 based upon the evidence before him. It was a mathematical calculation which depended on which side the trial judge believed. Our review of the record discloses no error.
The judgment is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | February 22, 1973 |
916be77d-3db8-4af4-828e-25d86834b181 | Masters v. Pruce | 274 So. 2d 33 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 33 (1973)
R. E. MASTERS et al.
v.
Marcia Smolian PRUCE et al.
6 Div. 942.
Supreme Court of Alabama.
February 8, 1973.
John T. Roach, Jr., Birmingham, for appellants.
Dale Corley, Birmingham, for appellees.
*34 BLOODWORTH, Justice.
This case was originally assigned to another justice. It was reassigned to the writer for the preparation of an opinion for the court. On rehearing, the application for rehearing is granted, and the original opinion, prepared by the writer, is withdrawn and the following opinion substituted therefor.
Appellants filed a bill of complaint in the circuit court of Jefferson County, in equity, seeking to obtain a permanent injunction against appellee, James E Norris, as Zoning Administrator of Jefferson County, to restrain him from issuing a building permit for the construction of an apartment complex on a tract of real property, lying within the police jurisdiction of the City of Vestavia Hills but outside its corporate limits. The bill also prayed that the court declare Acts 1177 and 1178 of the Alabama Legislature, approved September 13, 1969, General Acts of 1969, unconstitutional, and that the court determine that the Jefferson County Commission, the Jefferson County Board of Zoning Adjustment, and the Jefferson County Planning and Zoning Commission were without authority to change the zoning classification of the property, and for other, further and different relief to which they might be entitled.
The appellants are owners of residential dwellings near the property in question, the latter tract being owned by the appellees, Isadore Pizitz, John H. Jacobson and Marcia Smolian Pruce. Appellee, Stuart W. Gaines, is the party who filed the rezoning petition.
Prior to September 13, 1969 (the date when Acts 1177 and 1178 became effective), the City of Vestavia Hills, Alabama, exercised zoning jurisdiction and control over the property in question. It was zoned R-2.
Sometime after that date, Jefferson County commenced to exercise zoning over this property.
The zoning classification of the tract was changed from R-1, residential district, and C-1, commercial district (its previous county zoning classifications) to R-4, multiple dwellings, by a resolution of the Jefferson County Commission adopted on May 25, 1971.
The pertinent portions of the acts in question are as follows:
"Act No. 1177
"* * *
"Section 1. Definitions: For the purposes of this Act, certain terms are defined as follows:
"`County' shall mean any county of this state having a population of 600,000 or more according to the 1940 federal census or any succeeding decennial federal census.
"* * *
"Section 2. Any county which has heretofore or shall hereafter adopt zoning regulations shall have exclusive jurisdiction over all matters relating to such zoning within all areas of the county not lying within the corporate limits of any municipality in such county. From and after the adoption by the county of such zoning regulations, any and all jurisdiction of any municipality as to any area outside its corporate limits as to any matter relating to zoning is and shall be withdrawn and taken away.
"* * *
"Section 5. All laws or parts of laws in conflict with this Act are hereby superseded.
"Section 6. If any section, provision, sentence or phrase of this Act shall be declared unconstitutional, or void for any reason, such adjudication shall not affect any other provision hereof, and the remainder thereof shall be left intact and valid.
"Section 7. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming law.
"Act No. 1178
"* * *
"Section 1. The title of Act No. 344, H. 775 of the Regular Session of 1947 (General Acts 1947, p. 217) is hereby amended to read as follows: `An Act to empower any counties having a population of 400,000 or more according to the 1940 or any succeeding federal census to provide for, regulate, and restrict in the unincorporated portions of the county including that area lying outside the corporate limits of the municipalities of the county but within the police jurisdiction of such municipalities, the use and construction of buildings, structures and land for trade, industry and residence; to establish set-back lines for buildings and structures along the roads and streets; to prescribe certain duties and functions of the county planning commissions; to provide for county boards of zoning adjustment and define the authority, powers, and functions of such boards, and procedure and appeals from their decisions; and to provide remedies for the enforcement of ordinances, resolutions, and regulations made by such counties under authority of this act.'
"Section 2. Section 1 of said Act No. 344 of the Regular Session of 1947, as heretofore amended, is further amended to read as follows:
"`Section 1. For the purpose of promoting health, safety, morals, or the general welfare of the county, the governing body of any county having a population of 400,000 inhabitants or more according to the 1940 or any succeeding decennial Federal census, (herein called the "County"), is hereby empowered to regulate and restrict the use and construction of buildings, structures and land for trade, industry and residence; and to establish setback lines for buildings and structures along the roads and streets in the unincorporated areas of the county including all areas within the police jurisdiction of any incorporated municipality even the area within the police jurisdiction of a municipality over which the governing body of such municipality is exercising zoning jurisdiction and control when this amendment becomes effective; and all the rights, powers and authority relative to zoning in such areas heretofore vested in any municipality in any such county having a population of more than 400,000 according to the most recent federal decennial census is hereby withdrawn and taken away.'
"Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
"Approved September 13, 1969.
"Time: 4:42 P.M."
In its final decree, the trial court held both acts were valid, constitutional, and that "the legislative intent and the statutory effect" of Acts 1177 and 1178 were to repeal and supersede prior legislative enactments in conflict with them.
Appellants insist, in brief, that Act 1178 did not amend all the sections of Act 344 of the Alabama Legislature, approved August 15, 1947, General Acts of 1947, as amended last on August 16, 1949 (appears as §§ 970-974, Appendix, Vol. 14, Code of Alabama), necessary to accomplish its stated purpose.
By Act 1178 only the title and Section 1 of Act 344 were amended. Act 1178 did not amend Section 4 of Act 344, as amended in 1949, which provides as follows:
Thus, it can be readily seen that Section 1 of Act 344, as previously amended in 1949 and as amended by Act 1178, and Section 4 of Act 344, as amended in 1949, are in direct conflict with each other. Section 1, as amended by Act 1178, purports to grant any such county the power to exercise zoning in the unincorporated areas of the county, including all areas within the police jurisdiction of any incorporated municipalities and withdraws that power from any incorporated municipalities. On the other hand, Section 4 excludes such areas in the police jurisdiction of incorporated municipalities from county zoning where these municipalities are exercising such power.
Section 4 of Act 344, as amended, contains the implementing legislation necessary to exercise the powers granted to the counties in Section 1; Section 1 being a grant of powers.
In Opinion by the Justices, 249 Ala. 88, 30 So. 2d 14 (1947), it was stated that:
Appellants would have us follow this rule of statutory construction and declare that, by virtue of the conflict between its own provisions, Act 344, as amended, is inoperative and void.
On our first analysis, it was our judgment that this opinion, as well as our decision in Dewrell v. Kearley, 250 Ala. 18, 32 So. 2d 812 (1947), compelled our finding the act to be inoperative and void. We are now persuaded we must reach a different conclusion as will hereinafter appear.
In Dewrell v. Kearley, supra, this court was confronted with an act which was designed to abolish bills of exceptions in this state. The act allowed ninety days, after the taking of an appeal, for filing the transcript of the evidence with the clerk. The act also provided that, after such filing, either party could file objections to the transcript within ten days, after which an additional period of fifteen days was allowed *37 for the trial judge to hear the objections. The trial judge was then given fifteen days to settle the objections. Thus, forty days were allowed for this procedure, but the act provided that the hearing should be completed within ninety days from the date of the trial or the date of the judge's ruling on motion for new trial. This court held, viz:
It was further stated by this court that,
Since our original opinion in this case was released, we have received an application for rehearing filed by appellees and a brief in support thereof. Appellants have filed a brief in support of our opinion.
Additionally, we have received applications from ten law firms seeking permission to file amicus curiae briefs in support of appellees' position. We granted each of these applications and each has responded by filing a brief. One law firm has filed an amicus curiae brief in support of our original opinion.
We have carefully read, studied and considered each brief and each contention presented on rehearing, as we did on original submission. Several cases are cited on rehearing of which we did not have the benefit on original submission and which our independent research did not disclose. After mature consideration, we have concluded that at least one of the contentions on rehearing is well taken, and that we must uphold Act 344, as amended in 1949 and as amended by Act 1178, under the doctrine of "implied repeal."
We now consider that the Dewrell case, supra, is not apposite, because in that case the court was confronted with a situation in which it was unable to ascertain the intent of the legislature. Moreover, the provisions of the act in that case were impossible of execution. This is not true in the case at bar, as we shall presently demonstrate.
The doctrine of "implied repeal" is advanced as an answer to appellants' arguments that Act 1178 is inoperative and void because of the inconsistency and conflict between amended Section 1 and Section 4. In substance, it is contended that those inconsistent and conflicting provisions of Section 4 were repealed by implication so as to permit Act 344, as amended by Act 1178, to be upheld.
The case of State v. Bay Towing and Dredging Company, 265 Ala. 282, 90 So. 2d 743 (1956), is cited as authority for this proposition. This case was neither cited to us on original submission, nor did we, in our independent research, locate it. We are now convinced, however, that both its rationale and holding govern us in our determination as to the validity of Act 1178, and that we must uphold the act on its authority.
In the Bay Towing case, supra, the late Mr. Justice Goodwyn, writing for the court, expressed the doctrine of "implied repeal" thusly:
The facts of that case are so singularly relevant to those in the case at bar that it may be stated it is an almost, if not altogether, "all-fours" case.
We state briefly its pertinent facts.
The levying section of Title 51, Section 788 (the "use tax" law) provided:
Title 51, Section 789, as amended in 1949, provided for an exemption from the operation of this use tax as to:
The aforesaid Title 51, Section 788, was amended in 1951 to provide as follows:
There was no amendment of Title 51, Section 789 (u), supra, at that time.
It is obvious that subsection (u) of Section 789 (exempting used vehicles) was repugnant to the 1951 amendment of Section 788 (levying on used vehicles). The two provisions were directly in conflict and could not be reconciled. This court held that subsection (u), exempting used vehicles, was impliedly repealed by the enactment of the later 1951 amendment, levying the tax on used vehicles.
The court followed the rule that:
The court went on to hold:
We are cognizant of the principle of law that repeal by implication is not favored.
Nevertheless, we must also recognize the cardinal rule of statutory construction, to which all others are subordinate, that we *39 must ascertain and give effect to the true intent of the legislature in enacting a given statute. In re Opinion of the Justices, 267 Ala. 114, 100 So. 2d 681 (1958).
Thus, we cannot but otherwise conclude, from a study of the title of the act and the amendment to Section 1 (as well as the simultaneous passage of Act 1177), that the intention of the legislature in enacting Act 1178 and Act 1177 was to grant to counties with such population classification county-wide zoning in the unincorporated areas of the county, including those areas lying within the police jurisdiction of incorporated municipalities and, notwithstanding some of those municipalities may have previously exercised zoning jurisdiction in the affected areas. It seems, also, that its clear intention, in the passage of this act, was to take away from the affected municipalities the power to zone in those areas within their police jurisdiction. It must be presumed that the legislature, in enacting Act 1178, overlooked enacting a provision amending Section 4, so as to have it conform to the amendment of Section 1.
Thus, under the authority of State v. Bay Towing & Dredging Company, supra, we must conclude that, by the enactment of Act 1178 amending Section 1 of Act 344, as previously amended, the legislature "impliedly repealed" the last clause in the first sentence in Section 4 of Act 344, as previously amended, to-wit:
Appellants further insist that Act Number 1177 contained no enabling legislation ("Method of Procedure") such as appears in Section 4 of Act 344, as amended; and thus, the Jefferson County Commission could not under Act 1177, proceed to pass a resolution which would validly and effectively change the zoning classification of property located within the police jurisdiction of Vestavia Hills, Alabama.
Act 1177 does not contain an implementing clause similar to the one in Act 344, wherein provisions are made for notice and hearing to affected property owners of the proposed zoning change.
In Anderson's American Law of Zoning, the rule is stated:
The following later appears in the same volume of Anderson on Zoning:
In Sikes v. Pierce, 212 Ga. 567, 94 S.E.2d 427 (1956), the Supreme Court of Georgia was confronted with a situation similar to that in the case at bar. There, the charter of the City of Dublin, Georgia, authorized the mayor and aldermen of the city to adopt, by zoning ordinances, a plan or plans for the zoning or districting of the city. Neither the charter of the city, nor any of the zoning ordinances adopted thereunder, provided for any notice or opportunity for a hearing to be given to persons whose property would be affected by the zoning regulations.
The court in Sikes v. Pierce, supra, held, inter alia:
Similarly, the Supreme Court of California, in Gilgert v. Stockton Port Dist., 7 Cal. 2d 384, 60 P.2d 847 (1936), struck down as void and unconstitutional an act creating a port district, in part because the port district was given zoning powers by the act, but no provisions for notice and hearing were included within the act.
The court there stated:
To like effect are our Alabama cases with respect to the meaning of "due process" in similar fact situations. In the case of Alabama Alcoholic Beverage Control Board v. State, 247 Ala. 469, 471, 25 So. 2d 30, 32 (1946), this court held, viz:
See also Cooper v. Watts, 280 Ala. 236, 191 So. 2d 519 (1966).
It is suggested that the legislature intended Section 4 of Act 344, as amended, to provide the implementing legislation for Act 1177, since Act 1177 and Act 1178 were passed as so-called "companion bills," were read and passed at the same time, and had *41 as sponsors the same members of the House of Representatives. There is nothing in either act upon which to base such a conclusion. Nor, can Section 4 of Act 344, as amended, be utilized to carry out the grant of powers contained in Act 1177, because Acts 344 and 1178 are based on different population classifications and the provisions of Acts 1177 and 1178 are different though, in part, they each deal with zoning.
Additionally, we have ourselves conducted a search of prior acts of the legislature in order to determine whether the powers granted to counties by Act 1177 could be exercised under some existing legislative enactment which does provide for notice and hearing in such situations. We have been unable to find any such act.
Therefore, as Act 1177 does not provide for affected property owners to have notice and an opportunity to be heard, and, as our research has disclosed no legislation which would operate to save the act in such a situation, it must be concluded, and we hereby declare, that Act 1177 is void and inoperative for failing to require procedure which comports with due process of law.
Next, we address ourselves to the contention that the record does not reflect that the attorney general of the State of Alabama was served in the declaratory judgment proceeding which contested the validity of these two acts, and that this court is required to dismiss this proceeding on appeal for want of jurisdiction.
Appellees cite Title 7, Section 166, Code of Alabama, which states as follows:
Though this issue was raised for the first time on rehearing, this court has held that service on the attorney general is jurisdictional and that we must note our want of jurisdiction apparent on the record. Board of Trustees of Employees' Retirement System v. Talley, 286 Ala. 661, 244 So. 2d 791 (1971) and cases cited therein.
On the other hand, appellants cite the provisions of Rule 25 of the Supreme Court Rules, which reads in pertinent part as follows:
We will not attempt to resolve any apparent conflict between our Rule 25 and the rule of Talley, supra. For, we note that, although the record does not reflect whether the attorney general was served, on pages 23 and 24 of the transcript the following pleading appears:
Filed in Office Jul 1, 1971"
Appellants have filed a motion, which, inter alia, requests that we order the register to amend the transcript to reflect that, in fact, the attorney general was served. A purported copy thereof is attached to the motion. (Of course, we cannot consider this purported copy under our rules.)
Since there was an appearance by the attorney general, the foregoing answer and demurrer being filed by him, we see no need for the transcript to reflect service on him. After all, the purpose of the provisions of Title 7, Section 166, is to give notice of the filing of the bill. The attorney general unquestionably has had notice of the bill, contesting the validity of the two acts in question, else he is not likely to have responded by filing the pleading set out above.
Finally, appellants urge that Acts 1177 and 1178 are unconstitutional because they are local laws which have not been advertised as required by Section 106 of the Alabama Constitution of 1901. Since we have already determined that Act 1177 is void and inoperative for another reason, we pretermit discussion of this issue with regard to that act.
Section 110 of the Alabama Constitution of 1901 defines the terms "general law" and "local law" as follows:
Thus, the question for determination is whether Act 1178 is a general law or a local law, as defined by this section. If Act 1178 is a local law, then it is void because it was not advertised as required by Section 106 of the Constitution. Smith v. Lancaster, 269 Ala. 579, 114 So. 2d 568 (1959).
A law which is based on a population classification may be enacted as a general law under limited conditions, even though the law in its application applies to only one political subdivision of the state. Smith v. Lancaster, supra, and authorities therein cited.
In order for such a law based on a population standard which applies to only one political subdivision to be upheld as a general law, the difference in population must be substantial, the classification must be made in good faith by the legislature, and the classification must be reasonably related to the purpose sought to be achieved by the act. City of Birmingham v. Moore, 248 Ala. 422, 27 So. 2d 869 (1946).
This court judicially knows that Act 1178 could only apply at this time to Jefferson County, as it is the only county in this state with a population of over 400,000.
*43 In Couch v. Rodgers, 253 Ala. 533, 45 So. 2d 699 (1950), this court held:
With reference to the tests heretofore set forth in City of Birmingham v. Moore, supra, it was stated in Opinion of the Justices, 263 Ala. 174, 81 So. 2d 699 (1955):
Nevertheless, we think the difference in population here was substantial.
Additionally, we believe that the classification was made in good faith by the legislature. There is certainly nothing to the contrary in the record.
Further, we hold that the classification is reasonably related to the purpose sought to be achieved by the act, as will be hereinafter discussed.
In our research, we have found twenty cases which dealt with acts based upon population classifications which applied at the time of their passage to Jefferson County only. In fifteen of these cases, this court held that the acts were general laws and were not violative of the Alabama Constitution. These were: Board of Revenue of Jefferson County v. Huey, 195 Ala. 83, 70 So. 744 (1916); State v. Burchfield, 218 Ala. 8, 117 So. 483 (1928); State ex rel. Russum v. County Commission of Jefferson County, 224 Ala. 229, 139 So. 243 (1932); State ex rel. Ward v. Henry, 224 Ala. 224, 139 So. 278 (1932); Wages v. State, 225 Ala. 2, 141 So. 707 (1932); State ex rel. Dally v. Woodall, 225 Ala. 178, 142 So. 838 (1932); City of Birmingham v. Wheeler, 225 Ala. 678, 145 So. 140 (1932); State exl rel. Shirley v. Lutz, 226 Ala. 497, 147 So. 429 (1933); Cooper v. State ex rel. Hawkins, 226 Ala. 288, 147 So. 432 (1933); Ex parte Ashton, 231 Ala. 497, 165 So. 773 (1936); Opinion of the Justices, 249 Ala. 511, 31 So. 2d 721 (1947); Opinion of the Justices, 263 Ala. 174, 81 So. 2d 699 (1955); Opinion of the Justices, 270 Ala. 38, 115 So. 2d 464 (1959); Smith v. Pullman Incorporated, 280 Ala. 295, 193 So. 2d 516 (1967); Opinion of the Justices, 281 Ala. 50, 198 So. 2d 778 (1967). Additionally, an act with a 110,000 standard of population which applied to both Jefferson and Mobile Counties was held general in *44 Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937).
The five cases in which it was held that the acts were local laws and violative of the Alabama Constitution, because they were passed without the required publication, were: Jefferson County v. Busby, 226 Ala. 293, 148 So. 411 (1933); City of Birmingham v. Moore, 248 Ala. 422, 27 So. 2d 869 (1946); Nelson v. State, 255 Ala. 141, 50 So. 2d 401 (1951); McDowell v. Columbia Pictures Corp., 281 Ala. 438, 203 So. 2d 454 (1967); Duncan v. Meeks, 281 Ala. 452, 204 So. 2d 483 (1967).
We believe that each of these five decisions is clearly distinguishable from the case at bar.
The case of Jefferson County v. Busby, supra, involved an act which provided for the appointment of bailiffs in circuit courts in counties having a population of 200,000 or more. The majority of the court held that the act was local without stating the reasons therefor other than a recitation of the cases on which they relied. We cannot presume to speculate as to why the court held as it did in that case. Suffice it to say that that case is not controlling in the case at bar.
City of Birmingham v. Moore, supra, dealt with an act which prohibited public housing projects in counties with a population of 300,000 or more. This court held that the act was local because there was no logical relation between the classification employed and the purpose to be attained. The act had the effect of leaving the construction and operation of housing projects to private enterprise, whereas in the other counties in the state, public housing authorities might carry out such functions. The court stated:
In Nelson v. State, supra, the act before the court provided for the condemnation of automobiles used in the storage of lottery papers in counties having a population of 400,000 or more. The court held that the act was local, stating that:
For similar reasons, it was held in McDowell v. Columbia Pictures Corp., supra, that an act which provided for a board to review and license the exhibition of motion pictures prior to their being shown to persons under the age of eighteen in counties having a population of 600,000 or more was a local act. In that case, it was observed that the legislature should be solicitous in enforcing the obscenity laws in all parts of the state, especially in view of the fact that virtually the same motion pictures are shown throughout the state.
In Duncan v. Meeks, supra, an act which prohibited straight party ticket voting by electors in voting for certain offices in counties having a population of 500,000 or more was held local. The court stated:
We believe that in the case at bar it is clear that the legislature could have reasonably concluded that the governing bodies of counties having over 400,000 population should have the sole and exclusive control over zoning in all areas within the county, outside the corporate limits of municipalities. The regulation of land use in populous counties within the state by the *45 county governing bodies appears to us to be a proper subject for the enactment of laws based upon such a minimum population standard as was set in this instance by the legislature. The problems of highly populous counties are unique with regard to the regulation of land use, especially in view of the fact that such counties generally contain a number of municipalities. Therefore, it is reasonable that the governing bodies in counties with over 400,000 population have such zoning powers, whereas other county governing bodies in the state may not.
The fact that the act before us presently affects only Jefferson County does not make the act a local law. This act will automatically apply to any other county within the state without exception upon its attaining the requisite population.
We hold that Act 1178 is a general law and as such is not in violation of Section 106 of the Alabama Constitution.
In conclusion, and by way of summary, we hold that:
I. By the enactment of Act 1178, amending both the title and Section 1 of Act 344, as previously amended, the legislature impliedly repealed the last clause of Section 4 of Act 344, as amended, which clause is directly repugnant to Section 1, as amended by Act 1178, and is impossible to reconcile with it; and, Act 344, as thus amended, is not inoperative and void because of its inharmonious provisions.
II. Act 1177 is void and inoperative in not providing a procedure for affected property owners to have notice and an opportunity to be heard in accordance with the requirements of due process of law.
III. An appearance by the attorney general in filing an answer and demurrer is a sufficient compliance with Title 7, Section 166, requiring service of process upon him.
IV. Act 1178 is a general law with local application, and no notice is required to be published as required by Section 106 of the Constitution.
The decree of the trial court is therefore affirmed in part, reversed in part and is remanded for entry of a decree in conformity herewith.
Affirmed in part, reversed in part and remanded.
MERRILL, HARWOOD, McCALL and FAULKNER, JJ., concur.
HEFLIN, C. J., and MADDOX, J., concur specially.
JONES, J., not sitting.
HEFLIN, Chief Justice (concurring specially):
I concur in the opinion of Justice Bloodworth with the exception that I disagree with his opinion that Act No. 1177 is unconstitutional. I am of the opinion that Section 4 of Act 344, as amended, should be considered in pari materia with Act No. 1177 so as to provide a due process procedure. Therefore, I am of the opinion that Act No. 1177 should not be held unconstitutional.
MADDOX, Justice (concurring specially).
I concur in the opinion in every respect except that portion which holds that Act 1177 is void and inoperative because it fails to provide in the text of the Act a procedure which would give affected property owners notice and an opportunity to be heard. As I understand the facts, after closer examination on application for rehearing, the zoning change which gave rise to the controversy here was made only after notice was published in the Birmingham Post-Herald and a public hearing was conducted in the Jefferson County Courthouse. Therefore, procedural due process was accorded the property owners in this case.
*46 I would not strike down Act 1177 merely because the Act does not set out a procedure to be followed. Where notice and an opportunity to be heard actually has been provided, I can see no constitutional infirmity. In other words, I do not think the legislative grant of authority has to spell out in the Act the procedural requirements, although I readily admit that this is the prevalent and preferable method.
I agree also with the general proposition that if a person's property interest is affected, he must have notice and an opportunity to be heard. I do find some authority, however, for the proposition that public hearings and public approval are mandatory only when required by the Legislature.[1]
I am not willing to say that in every zoning case notice and a public hearing are mandatory although I believe it would probably be the preferable procedure. Constitutionally, owners who have an interest in affected property are entitled to reasonable notice and a reasonable opportunity to be heard. But the question of what property is affected could be an open one. While I do not necessarily think that procedural due process requirements are available only to actual owners, I would not attempt to specify all who would be classified as "affected property owners" under a given fact situation. In general, only persons whose rights are injuriously affected by zoning regulations may attack their validity. 101 C.J.S. Zoning § 20, p. 718.
It is interesting to note that in Sikes v. Pierce, 212 Ga. 567, 94 S.E.2d 427 (1956), and Gilgert v. Stockton Port Dist., 7 Cal. 2d 384, 60 P.2d 847 (1936), which are cited in the opinion, the parties objecting to the zoning were actual owners. The same is true in Bell v. Studdard, 220 Ga. 756, 141 S.E.2d 536 (1965). From the reports of these cases, I cannot tell whether there was any notice or public hearing before the ordinances were adopted, or whether those courts would have considered that of any significance. I think it is very significant that the Jefferson County Commission gave notice and held a hearing in this case. In short, I think Act 1177 is not unconstitutional because it contains no method of procedure. If the Jefferson County Commission, when purporting to zone under the authority granted by Act 1177, follows the method of procedure set out in Act 344, as amended by Act 1178, as it did here, such procedure would comport with due process, in my judgment.
[1] See Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964).
In Burke v. Board of Representatives of Stamford, 148 Conn. 33, 166 A.2d 849 (1961), the Legislature did not make specific provisions for notice and hearing by the city board in its review of an amendment to a zoning map adopted by the zoning board. The court held that it could not write such a requirement into the law by judicial fiat. See also, 101 C.J.S. Zoning § 11, p. 696. | February 8, 1973 |
47237dcf-fb70-433c-8be2-dbcbdd1b7d96 | Chandler v. Waugh | 274 So. 2d 46 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 46 (1973)
Bruce Kenton CHANDLER
v.
Henry WAUGH et al.
SC 40.
Supreme Court of Alabama.
February 22, 1973.
*47 George W. Nichols, Jr., Tuscaloosa, for appellant.
Huie, Fernambucq & Stewart and E. D. Martenson, Birmingham, for appellees.
MADDOX, Justice.
The major question presented by this appeal is whether the owner of an animal which is running at large on a city street can be held liable in damages for his negligence if the animal causes an automobile accident which produces injury. Appellant contends that state law which requires proof that the owner knowingly or intentionally placed the animal in the street before recovery can be had is applicable only to areas outside cities which have adopted ordinances to prevent animals from running at large. Appellee says that in all cases of automobile accidents involving animals running at large, before liability attaches, it must be shown that the owner knowingly or intentionally put the animal in the highway or street.
This case arose out of an accident that occurred in the early morning of June 1, 1969, within the city limits of the city of Tuscaloosa. Plaintiff, Bruce Kenton Chandler, was a passenger in an automobile driven by David Shirley when the automobile was wrecked in an attempt to avoid hitting a horse which was standing on the road in the path of the Shirley automobile. The horse belonged to the defendant, Henry Waugh.
*48 The driver, Shirley, attempted to avoid hitting the horse and in the process, the automobile overturned. Plaintiff was thrown from the car and seriously injured, and sought to prove loss of wages and medical expenses as a result of the accident.
Plaintiff charged in his complaint that the defendant negligently allowed his horse to run at large in the city limits. He also claimed that the defendant intentionally and wilfully allowed his horse to run at large but candidly admits that he failed to prove the allegations of this court, and he does not take issue with the trial court's action, directing a verdict on this count. Plaintiff does take issue with the trial court's order sustaining defendant's demurrer to each of his counts charging simple negligence.
Plaintiff contends that the city of Tuscaloosa had adopted a stock ordinance under the authority granted to it by Title 3, Section 101, Code of Alabama, 1940, which made it a nuisance to allow a horse to run at large within the city.
Defendant argued before the trial court, and also argued here, that because of the provisions of Title 3, Section 79, Code of Alabama, 1940, he is not liable for any damages to the plaintiff unless it is alleged and proved that he knowingly or wilfully put or placed the horse on the road where the damages were occasioned. Title 3, Section 79, provides:
We are here concerned with the proviso in Section 79 which we have emphasized. If the defendant is correct, the trial court should have sustained defendant's demurrer. At first blush, it would appear that the proviso would be applicable here, but a study of the history of state stock laws indicates otherwise.
A review of laws regulating the keeping of animals indicates that areas within municipal limits have consistently been treated as separate stock law districts. At one time, municipalities were compelled by statute to adopt ordinances to prevent horses and other domestic animals from running at large. Act 419, Acts of Alabama, 1903, p. 365. In fact, a city could be compelled by mandamus to adopt an ordinance to prohibit animals from running at large. Huey v. Waldrop, 141 Ala. 318, 37 So. 380 (1904). The 1923 Code contained a similar provision which required municipalities to adopt ordinances to prevent stock running at large in the city. Code, 1923, Section 10224. The 1907 Code contained a similar provision. Code, 1907, Section 5898. In the 1940 Code, the adoption of ordinances was made discretionary, the Legislature substituting the word "may" for "shall" which was in prior codes. Title 3, Section 101, Code, 1940, now reads:
Since the passage of Act 419, Acts, 1903, it has been unlawful to allow livestock to run at large in the corporate limits of all towns and cities five thousand inhabitants or more. Code, 1907, Section 5897; Code, 1923, Section 10223; Title 3, Section 100, Code, 1940.
The proviso in Section 79, Title 3, Code, 1940, was first approved on September 13, 1939. Act 368, Acts, 1939, p. 487. Act 368 was known as the Local Option Stock Law for the state of Alabama. It was codified as Title 3, Sections 77-94, Code, 1940.
At the time the Local Option Stock Law was adopted, the Legislature made important exceptions. Section 17 of the 1939 Act and Section 94 of Title 3 provide that the provisions of the Local Option Stock Law cannot be construed to repeal any municipal stock law, nor can the law be construed to prevent any municipality from enacting a stock law ordinance.
In view of the history of the various legislative grants and enactments, it seems reasonable to say that the intent of the Legislature was to make it unlawful for livestock to run at large in the corporate limits of cities and towns of five thousand inhabitants or more and to allow municipalities authority to adopt ordinances to prevent stock from running at large in the city or town.
Since we are construing various provisions of the 1940 Code as they relate to stock laws, we believe we should construe them together so as to produce a harmonious system, if possible. Donoghue v. Bunkley, 247 Ala. 423, 25 So. 2d 61 (1946). The proviso in Section 79 was adopted at the same time Sections 94, 100 and 101 were adopted.
To construe the proviso in Section 79 to be inapplicable to municipalities which have adopted ordinances to prevent stock from running at large in the city limits is not inharmonious. Cities were the first stock law districts by virtue of state law. When the proviso in Section 79, Title 3, was adopted, municipalities were exempted from the provisions of the Local Option Stock Law specifically. Title 3, Section 94, Code. Furthermore, we believe that the proviso in Section 79 was adopted primarily to protect the owners of livestock from liability for simple negligence in rural areas where the stock is concentrated and the probability that stock could get out and onto highways would be more prevalent.
We think the Legislature, in adopting the proviso in Section 79,[1] intended to make the owner or keeper of stock in areas outside municipalities (which had adopted stock laws or which enacted stock laws afterward) liable for damages in motor vehicle accidents caused by livestock only where the owner or keeper knowingly or wilfully placed or put the livestock on the highway, road or street. A reading of the various provisions of law relative to stock laws seems to show a legislative intention to separate the problem in the city from that of the county. Such distinctions are reasonable because of the problemsthe automobile is more prevalent in cities and townslivestock is more prevalent in areas outside cities and towns.
In construing the proviso in Section 79, we must apply a well-established rule of construction that provisos following an enacting clause are to be given a rational construction in harmony with the general purpose and intent of the enactment with a view to carrying into effect the *50 whole purpose of the law. State v. Dixie Dairies Corp., 268 Ala. 480, 107 So. 2d 896 (1959).
We do not think that the enacting clause of Section 79 contains a full enumeration of the items for which damages can be recovered. The enacting clause mentions crops, shade or fruit trees, and ornamental shrubs and flowers. Motor vehicles and occupants, the subject matter of the proviso, are not mentioned in the enacting clause. Consequently, giving a rational construction to the proviso and attempting to harmonize the various provisions of law, we come to the conclusion that the proviso which limits the liability of an owner of an animal when a motor vehicle is involved, was not intended to apply in municipalities which had adopted stock law ordinances.
In order to assist the trial court in the event the case is tried again, we now discuss the question raised by the appellant relative to the plaintiff's claim for medical expenses and loss of earnings. The court refused to allow evidence of sums spent for medical care prior to the time the plaintiff's disability of non-age was removed. At the time of the accident, the plaintiff was a minor. It appears from the record that his parents were divorced and that he was living with his mother. Prior to the time suit was filed, plaintiff, upon petition filed by his mother, had his disabilities of non-age removed. He filed suit in his own name and claimed damages for loss of wages, personal injuries, permanent injuries, and medical expenses. The trial court refused to permit proof of medical expenses incurred prior to the date plaintiff's disability of non-age was removed.
To aid the lower court in the event this matter is raised during another trial, we think this Court's case of Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 So. 222 (1907), is dispositive of the question raised as to plaintiff's right to recover medical expenses and loss of wages. There, McNab, a minor, sued by his father and next friend to recover for medical expenses and loss of earnings. This Court discussed the general rules, as follows:
The judgment of the trial court is due to be reversed and the cause remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.
[1] The proviso in Section 79 was not in the original bill or in the substitute. The proviso was offered as an amendment by Representative Walter P. Gewin of Hale County and was adopted. Journal of the House, 1939, p. 1939. | February 22, 1973 |
4ee148d0-226c-44da-be30-aa7fdf8a8011 | Newton v. Roe | 275 So. 2d 135 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 135 (1973)
Mary Frances NEWTON
v.
Ernest Edward ROE.
SC 43.
Supreme Court of Alabama.
March 22, 1973.
*136 George S. Brown, Birmingham, for appellant.
H. E. Holladay, Pell City, for appellee.
JONES, Justice.
This is an appeal from a final decree denying the relief sought by the complainant-appellant, Mary Frances Newton, and granting the affirmative prayer of the respondent-appellee, Ernest Edward Roe's cross-bill.
The bill of complaint which originated this suit was a bill for the sale of land for division. The bill averred that the complainant and the respondent were each the owner of an undivided one-half interest in a particularly described 79-acre tract of real property situated in St. Clair County, Alabama. A deed was attached to the bill as an exhibit which showed that on January 30, 1957, one J. J. A. Roe conveyed the subject realty to Ernest Edward Roe and wife, Mary Frances Roe. The bill further averred that complainant was formerly known as Mary Frances Roe at a time when she was married to the respondent; that she and the respondent were divorced in 1963 and since that time the respondent has been in possession of the subject real estate without paying complainant any rent thereon. The bill prayed that upon a final hearing the court enter a decree ordering the subject property sold for division; an account had between the parties of accrued rents and profits; and a reasonable solicitor's fee be allowed complainant from the proceeds of the sale.
Respondent denied in his answer that the complainant had any title or interest in or to the subject property and stated further that at the time of their divorce the complainant and the respondent entered into a property settlement agreement wherein and whereby it was agreed that the complainant would receive title to their house and lot, and that the respondent would receive exclusive title to the 79-acre tract which is the subject of this action. In his answer, the respondent also stated that at the time of the divorce settlement he signed a deed conveying his entire interest in the family residence to the complainant, and that she did likewise convey her entire interest in the subject realty to the respondent but that said latter deed has since been lost. Respondent's answer also contained what could be considered a cross-bill, which prayed that the court decree that the complainant had no right or interest in the subject property and that exclusive title to the subject realty be quieted in the respondent.
After a hearing ore tenus, the trial court found and decreed essentially as follows:
There are six assignments of error all of which are related and which take the following points: (1) the trial court erred in revising or amending a 1963 divorce decree over which it had lost jurisdiction; (2) the trial court erred in holding that a provision existed in a property settlement which was not embodied in the final decree of divorce; and (3) the trial court erred in divesting complainant of her interest in the property and quieting title to same in the respondent.
Upon a careful review of the record in this case, we are at the conclusion that appellant's assignments of error are not well taken. We are unable to agree with appellant's contention that the final decree rendered by the trial court constitutes a revision or amendment of a prior decree. The language of the instant decree certainly does not purport to alter a prior decree in any way and we find no basis in law or fact to so construe said decree.
As to the question of jurisdiction, the appellant herself invoked the jurisdiction of the equity court when she filed her bill for sale and division. She cannot complain that the trial court lacked jurisdiction to render the decree now that the Court has ruled adversely. The equitable maxim that "he who seeks equity must do equity" has long been recognized and approved by this Court. Murphy v. Carrigan, 270 Ala. 87, 116 So. 2d 568; Rhodes v. Schofield, 263 Ala. 256, 82 So. 2d 236; Loxley v. Douglas, 121 Ala. 575, 25 So. 998; Grider v. American Freehold Land Mortgage Co., 99 Ala. 281, 12 So. 775.
It is also well established that, when a court of equity is presented with such facts as warrant, it is fully justified to regard substance rather than form and treat as done that which ought to have been done, if such is necessary to effectuate the true intent of the parties. Coley v. W. P. Brown & Sons Lumber Co., 251 Ala. 235, 37 So. 2d 125; St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 108 So. 858; Hughes & Tidwell Supply Co. v. Carr, 203 Ala. 469, 83 So. 472. In Copeland v. Warren, 214 Ala. 150, 107 So. 94, the parties had attempted to execute a conveyance of property but the deed contained an incorrect description of the property to be conveyed. In holding the deed valid and allowing a reformation of the description in the deed the Court stated:
Applying the above stated equitable principles to the present case, we feel the evidence justified the trial court's conclusion that at the time of the divorce settlement it was intended by the parties that the respondent would be the exclusive owner of the 79-acre tract, and that such intention should be effectuated through this litigation. Indeed, the complainant's evidence, including her own testimony, fails to dispute that such were the terms of the agreement. Although complainant does not deny that such an understanding was reached between the parties, she nevertheless insists that since the same was not included in the final decree of divorce, and that no deed conveying her interest was *138 ever executed, it is not now binding on her; and, consequently, she remains the owner of an undivided one-half interest in the property.
We agree with the trial court's rejection of complainant's contention; and we hold that the trial court did not exceed its jurisdiction in adjudicating the rights of the parties by divesting title out of the complainant and in the respondent in accordance with the complete settlement agreement disclosed by the testimony as if she had executed the deed on the date of the property settlement incident to their divorce. Accordingly, the judgment of the trial court is due to be and is hereby affirmed.
Judgment affirmed.
HEFLIN, C. J., and BLOODWORTH and McCALL, JJ., concur.
COLEMAN, J., concurs specially.
COLEMAN, Justice (concurring specially):
Appellant states one proposition of law in her brief, to wit:
Appellant's argument, as I understand it, is to the effect that the trial court erred in rendering the decree from which this appeal was taken for the reason that the instant decree is indirectly and in effect a modification of the divorce decree rendered in 1968.
The instant suit is a suit for sale of lands for division of the proceeds among the owners of the land. I am of opinion that the instant suit is not a proceeding to modify the divorce decree and, therefore, that the objection urged by appellant is not well taken. No other objection being urged by appellant, I concur in affirmance. | March 22, 1973 |
dbe8c15c-ba1b-4d86-99e9-c2e95e8535fb | American Fire & Cas. Co. v. State Farm Mut. Auto. Ins. Co. | 273 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 186 (1973)
AMERICAN FIRE & CASUALTY COMPANY, a corporation
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation.
SC 35.
Supreme Court of Alabama.
February 1, 1973.
London, Yancey, Clark & Allen, and Clarence L. McDorman, Jr., Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
HARWOOD, Justice.
At the time of the accident, which is the basis of the proceedings below, the American Fire and Casualty Company, hereinafter referred to as American, had issued to Mrs. Joel T. Blankenship an automobile *187 liability insurance policy covering an automobile owned by Mrs. Blankenship.
At this same time, there was in effect an automobile liability policy issued by State Farm Mutual Automobile Insurance Company to Jack W. Palmer and his wife Beverly Palmer covering a Chevrolet automobile owned by the Palmers.
On 11 June 1968, Mrs. Blankenship was driving the Palmer automobile with Mrs. Palmer's permission. Sandra Blankenship, the young and unemancipated daughter of Mrs. Blankenship, and Mrs. Palmer and Callie Palmer, the young and unemancipated daughter of Mr. and Mrs. Palmer, were riding as passengers.
An accident, involving only the Palmer automobile occurred, and Mrs. Blankenship was killed. Sandra Blankenship, Mrs. Palmer, and Callie Palmer received injuries, apparently of a serious nature.
It was stipulated that "it was the tortious conduct of Mrs. Joel T. Blankenship which caused the accident and the injuries sustained by Sandra Blankenship, Callie Palmer, and Mrs. Jack W. Palmer."
Thereafter American paid to Mrs. Palmer and Mr. Palmer $16,600, and obtained a release from them for all claims they might have against the administrators of the estate of Mrs. Blankenship growing out of the accident.
In a pro ami suit in the Circuit Court of Jefferson County, Bessemer Division, in behalf of Callie Palmer against the administrators of the estate of Mrs. Blankenship, a court approved consent judgment of $500.00 was entered and paid by American for the injuries to Callie Palmer.
Likewise, in a pro ami proceeding a consent judgment in the amount of $18,000.00, approved by the court, was entered in behalf of Sandra Blankenship. This judgment was also paid by American.
It was stipulated that the above mentioned pro ami suits and settlements were made without the consent of State Farm, and were processed by attorneys representing American under the provision in American's policy authorizing American to "make such investigation and settlement of any claim or suit as it deems expedient."
American then filed a declaratory action in which the above facts were in substance set out, State Farm being named as respondent.
The bill prayed that the court, (1) decree whether the policy issued by State Farm afforded primary liability coverage, (2) that rights, duties, and responsibilities of American and of State Farm under their respective policies be declared, and, (3) that State Farm be ordered to pay to American $35,100.00 for the monies paid out in the settlements made by American.
State Farm filed its answer. A copy of the policy issued by it to the Palmers was attached to and made a part of the answer.
A stipulation of facts was entered into and the cause was submitted on the bill, answer, and exhibits, it being agreed that the stipulation of facts should serve as a note of testimony.
The court thereafter found that State Farm "is not liable under any of the claims or alleged causes of action as set forth in the pleadings in this cause and Complainant [American] is without basis for any item of affirmative relief inhering to its benefit and prayed for in the Bill of Complaint * * *"
The Chancellor then ordered and decreed that the cause be dismissed. This appeal followed.
The coverage provisions of the State Farm policy determinative of the points raised in appellant's brief and assignments of error are in pertinent parts as follows:
*188 Under the definitions applicable to the insuring agreements the "insured" is defined to be:
Under the Exclusion provisions of the policy it is provided that:
American's policy with Mrs. Blankenship provides that, in case of a nonowned automobile, coverage "shall be excess insurance over any other valid and collectible insurance." American contends that State Farm's policy does afford "other valid and collectible insurance." We do not agree.
Clearly Jack Palmer and Mrs. Palmer, the named insureds, and Callie Palmer, their daughter, all relatives and residing in the same household, were excluded from coverage under the Exclusion provisions in the State Farm policy.
As to Sandra Blankenship, counsel for appellant seeks to place her within the coverage of the State Farm policy, if we understand counsel's argument, on the theory of respondeat superior. In brief counsel for appellant argues:
While admitting that there could be no direct suit by Sandra Blankenship against her mother, because of the doctrine of parental immunity (see Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133), counsel for appellant further states:
It is well settled under the doctrines of our cases that permissive use of an automobile alone does not furnish any basis for liability against the owner. See Thompson v. Curry, 36 Ala.App. 334, 56 So. 2d 359; Downes v. Norrell, 261 Ala. 430, 74 So. 2d 593, and innumerable authorities cited in the above two cases.
The bill of complaint merely states:
The stipulation of facts entered into between the parties states only that:
Thus, under the allegations in the bill, and the stipulation of facts, there is nothing that would remove the point now being considered from the rule enunciated in Thompson v. Curry, supra, and Downes v. Norrell, supra. That is, there are no averments to the effect that the owner of the borrowed automobile was riding therein *189 and directing its operation, or that the driver of the automobile, while driving it with the owner's permission, was driving solely for the benefit of the owner, etc. We cannot supply such facts by speculation, and without such speculation there is nothing on which the doctrine of respondeat superior could be rationally based.
Counsel for appellee has set forth several other reasons and arguments designed to demonstrate the fallacies in the contentions of counsel for appellant which seek to impose liability on Mrs. Palmer, and thus invoke the coverage of the State Farm policy. In several instances, appellee counsel's argument appears meritorious. We see no need to discuss these additional replies to appellant's contentions, however, being clear to the conclusion that what we have written is dispositive of this point.
Affirmed.
MERRILL, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., concurs in result. | February 1, 1973 |
e5bc8faa-6b5f-4c9a-8a70-dae86a1c2678 | Echols v. Star Loan Company | 274 So. 2d 51 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 51 (1973)
John Henry ECHOLS et al., etc.,
v.
STAR LOAN COMPANY, et al.
John Henry ECHOLS et al., etc.
v.
O. K. DISCOUNT COMPANY, a corporation, et al.
SC 28, 29.
Supreme Court of Alabama.
January 11, 1973.
Dissenting Opinion March 8, 1973.
Rehearing Denied March 8, 1973.
*53 Frank M. Bainbridge, Harry B. Cohen, Birmingham, for appellants.
Sirote, Permutt, Friend & Friedman and William G. West, Jr., Birmingham, for appellees.
McCALL, Justice.
This appeal is taken from the final decrees of the lower court as provided for by Tit. 7, § 754, Code of Alabama, Recompiled 1958. The assignments of error on the record raise objection to certain orders, made in these final decrees, sustaining demurrers to the class suit aspects of the bills, as well as objection to the entry by the court of earlier orders sustaining specified grounds of the demurrer assigned to the same aspects of the bills.
The appellees have moved to affirm the final decrees of the circuit court because they are said to be consent decrees which are not reviewable. This is of course generally correct as to true consent decrees. Garner v. Prewitt, 32 Ala. 13 (1858); Gossett v. Pratt, 250 Ala. 300, 34 So. 2d 145 (1947); City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160 (1953). In this case, the decrees recite that the parties stipulated in open court as to the correct sum of money that the appellants were entitled to recover in their individual capacities from the appellees. They also recite that the appellants expressly reserved the right to appeal the denial of a class status, and, that by consenting to the amounts of money set forth therein did not waive or impair this right to appeal. Appellants' right to appeal must rest on the statutory grounds for appeal and cannot be conferred merely by agreement of the parties nor the decree of the trial court. Stone v. Lewin, 8 Ala. 395 (1845).
The effect of sustaining several grounds of demurrer, specially directed to a certain part of a bill, is to strike out that part of the bill. The plaintiff afterwards may amend to cure the defect or, eliminate it or, if the bill still has equity, proceed without amendment on the remaining allegations. Steele v. Freeman, 250 Ala. 336, 34 So. 2d 139. In the instant case the court sustained the appellees' specific grounds of demurrer assigned to those parts of the bills that sought to maintain the cause as a class suit and overruled the demurrers to the bills as a whole and insofar as they related to the individual capacities of the appellants to sue. The named appellants proceeded on the remaining allegations of the bills. On appeal from the final decrees we think the cause is reviewable insofar as the appeal seeks to challenge the action of the trial court in sustaining the grounds of demurrers specifically attacking those parts of the bills relating to a class suit. Steele v. Freeman, supra. The case of American Life Insurance Co. v. Powell, 260 Ala. 574, 71 So. 2d 872, also recognizes an appellant's right on appeal to assign as error the entry of an order or decree sustaining certain *54 grounds of demurrer which are addressed to a particular aspect of a bill and overruling those addressed to the bill as a whole. The court said: "The effect is to strike out of the bill that aspect to which the demurrer was sustained unless it is reversed on appeal or amended." Likewise, in Barran v. Roden, 263 Ala. 305, 82 So. 2d 398, we held that on appeal by the complainants, we would review a decree sustaining a demurrer to an aspect of a bill in equity, citing Steele v. Freeman, supra, and American Life Insurance Co. v. Powell, supra.
We are unable to reconcile any reasonable relation between the trial court's sustaining the appellees' demurrer to the class action aspect of the bill, which ruling, we think, the appellants have a right to have reviewed under Steele v. Freeman, supra, American Life Insurance Co. v. Powell, supra, and Barran v. Roden, supra, and the appellants' consenting to the monied sum to be awarded them. In our opinion none exists, and the appellees' argument that such partial consent waived the appellants' right to appeal the rulings adverse to the class on the demurrer is without merit. The appellants do not seek to review the part of the decree to which they have assented, but the adverse ruling on the demurrer which eliminated the class suit aspect from their bill.
In our opinion the errors complained of in this case may be assigned on appeals from the final decrees in the cause. Tit. 7, § 755, Code of Alabama, Recompiled 1958, amended 1961. Appellees' motions to affirm the final decrees of the trial court are therefore denied.
The specified section of the Alabama Small Loan Act under which appellants would maintain this equity suit is found in § 290(8) of Tit. 5, Code of Alabama, Recompiled 1958. It provides in part as follows:
The appellants who were complainants below are husband and wife, who borrowed a small sum of money from the appellees and have made payment thereon within twelve months next preceding the filing of the bill of complaint. They aver that they were required to pay illegal charges and usurious interest to the appellees in violation of the above provision of the Small Loan Act. No other complainants are specifically named in the bills. Without attaching to the bill any list of those whom the appellants would represent, they aver that there are others who likewise are borrowers of money from the appellees in varying amounts up to $300 under substantially similar contracts to those entered into by the appellants with the appellees, who also were charged and required to pay illegal charges and usurious interest in violation of said Act, that those constituting that class are so numerous that it is impracticable to bring them all in before the court, that the appellants will adequately represent that class, that the character of the right sought to be enforced for or on behalf of the class is several, that there is a common question of law or fact affecting the several rights, and that common relief is sought.
The bills further aver that those constituting the class are unable to obtain legal representation on a case by case basis because of the small sums of money involved and that no legal remedy is available to them except through a class action and to *55 deny them the right to maintain a class suit will foreclose their right to recover the amounts they are due. The alleged cause of action arises from illegal and usurious contracts knowingly made and entered into by the appellees contrary to said Small Loan Act and the express public policy of the state; and, finally it is alleged that the usurious interest and illegal charges were knowingly made as a part of a plan or scheme to extract illegal interest from said class.
The bills pray (1) that the contracts, notes, and mortgages executed to the appellees be declared null and void, (2) that those of record be ordered marked satisfied, (3) that appellees be permanently enjoined from enforcing any of said instruments of indebtedness, (4) that all assets and records of appellees be ordered held and conserved in trust for the use and benefit of appellants and the class whom they would represent, (5) that a master aid the court in an accounting against the appellees as to each account with complainants and all those of the class in order to determine the amounts of money paid appellees by all such borrowers for whom the class suit is maintained, (6) that the master notify by mail all members of the class to file claims for sums due them, (7) that the court enter a final decree in favor of those members of the class, who after notice intervened in the cause, for the sum of money paid by each to the appellees and found to be due said appellants and intervenors by the appellees, with interest and solicitors' fees, and that the relief prayed for be granted appellants and to those similarly situated individually.
The trial court held that a class action could not be maintained under the averments of the bills and sustained demurrers addressed to that aspect of the bills. Holding that the remaining allegations of the bills contained equity, the court overruled the demurrers to the bills as a whole and permitted the appellants to proceed to a final decree which was in favor of the appellants in their individual capacities.
The appellants have appealed the ruling of the trial court on behalf of the class. We are concerned only with procedural questions, that is, whether or not the appellants can maintain a class action under the allegations of their bills.
While the Alabama Small Loan Act is remedial in its nature, there is however no express provision in it for a class suit by aggrieved borrowers. The appellants maintain though that the authority for so doing is found in Equity Rule 31(a), Appendix to Title 7, Code of Alabama, Recompiled 1958. This states:
Alabama's class action rule, Equity Rule 31, supra, re-adopted by the Supreme Court of Alabama on May 31, 1941, as to its first three categories of class action, follows categories one, two, and three of Federal Rule 23(a) of the Federal Rules of Civil Procedure as adopted in 1938 and as existing up to 1966. Alabama Equity Rule 31(a) *56 adds a fourth category, subparagraph (4), permitting a class action where the interests of non-parties are "contingent" or "executory." The latter rule in no wise applies in the present case.
The three categories of class actions found in Federal Rule 23(a) as originally adopted prior to 1966, have been referred to as "true," "hybrid" and "spurious." Moore, Federal Practice (2d Ed.) §§ 23.08, 23.09, 23.10, App. While such terminology has been criticized, Federal Practice and Procedure, Barron and Holtzoff (Rules Ed.), Vol. 2, § 562, most courts use the Moore terminology only as a handy labeling device and not as truly descriptive, Puget Sound Alumni of Kappa Sigma v. City of Seattle, 70 Wash. 2d 222, 422 P.2d 799, nor as a criticism. Oppenheimer v. F. J. Young and Co., Inc., 3 F.R.D. 220, 224 (S.D.N.Y., 1943).
In 59 Am.Jur.2d, Parties, § 51, p. 414, the following statement is made concerning these three categories:
"§ 51. Types of class actions under the Federal Rules and similar provisions.
Alabama's Equity Rule 31(a) was adopted directly from the original Federal Rule 23(a) as to the first three categories. For convenience we will allude to the three categories set out in our Equity Rule 31(a), by the same terminology as Professor Moore, that is, "true," "hybrid" and "spurious," because Rule 23(a) of the Federal Rules of Civil Procedure has already received judicial interpretation in many respects using these labels, and there seems to be a want of judicial construction of our rule as applicable to the particular facts of this case. Therefore federal cases decided prior to the 1966 new Rule 23 will be of particular benefit in understanding and determining our Rule 31.
*57 It is clear to us that the cause does not come within the first category, denominated a "true" class action, because the character of the right sought to be enforced for the class is not "joint," or "common," or "secondary." The claims which the appellants attempt to assert on behalf of all borrowers are distinct and are possessed separately by each borrower individually against the appellees.
In Puget Sound Alumni of Kappa Sigma v. City of Seattle, 70 Wash. 2d 222, 422 P.2d 799, twelve plaintiffs, claiming the right to represent a total of ninety-two persons in what they considered a true class action sought from appellant sums of money paid in connection with street vacations and to enjoin further collection of such charges. The court denied the class action claim, but granted the injunction. The plaintiffs cross-appealed from the dismissal of the claim for a class action in behalf of the ninety-two persons who paid the charges sought to be recovered. On appeal the court said that it was necessary to determine whether the claim which the plaintiffs attempt to assert in behalf of all ninety-two persons is a true class action based on a right, characterized as joint or common, or whether the claim is a spurious class action. The court then observed that the correct classification of an asserted claim is dependent upon the jural relationship of the members of the class and that it is this character of the right, sought to be enforced for or against the class, which determines its classification:
In summing up the court said:
In Kainz v. Anheuser-Busch, Inc., 194 F.2d 737 (7th Cir., 1952), three partnerships and one individual, separately engaged in operating retail liquor stores brought suit under the Clayton Act, as amended, charging discrimination and unfair competition on the part of the defendants. The action was brought as a class action for the benefit of the plaintiffs and all the parties named in the plaintiffs' exhibit attached to the complaint which averred that all these parties and others not specifically named constituted a class so numerous as to make it impractical to bring all of them before the court, that all the persons mentioned in the exhibit had authorized institution and prosecution of the action in their behalf, that plaintiffs would fairly insure adequate representation of all members of the class that the rights sought to be enforced are several but embrace common questions of law and fact, and that common relief was sought. The plaintiffs further averred discrimination against all members of the plaintiffs' class in fixing prices against them in the sale of beer and services. In its opinion the court said in explanation of why this was not in fact a true class suit that:
The second category, commonly known as a "hybrid" class action includes suits where the rights sought to be enforced are several and the object is to adjudicate separate claims against specific property. Such specific property has been, for example, trust funds, realty and the assets of an insolvent. As stated above, this hybrid category is clearly without application to the facts as averred in the appellants' bill.
*58 Having eliminated possible application of the "true" and "hybrid" categories of class action to the present case the question remains as to whether the present equity suit comes within the category of "spurious" class action under the language of our Equity Rule 31(a)(3), supra, that is, one where the character of the right sought to be enforced for or against the class is several and there is a common question of law or fact affecting the several rights and a common relief is sought.
The spurious class action is well characterized by Professor Moore, Moore's Federal Practice (2d Ed.), Vol. 3B, § 23.10(3), at 2601, App. as follows:
The preceding cases of the abutting landowners suing for return of monies had by the city or the various liquor store owners suing collectively for their several damages are apt examples of the spurious class suit. Puget Sound Alumni, supra; Kainz v. Anheuser-Busch, supra.
Judgment in the "spurious" class action is conclusive and binding only on the parties to the action who are before the court and extends only to the plaintiffs becoming parties before judgment. No member of the "class" is bound by a judgment unless he is present, that is, unless he becomes an actual party by joinder or intervention. Where the only common interest of members of a class is a common interest in some of the questions of law or fact involved in a suit relating to rights which are several, the judgment cannot, consistently with due process, be binding upon or affect the rights of any persons other than those who are or may become actual parties to or participants in the litigation. 59 Am.Jur.2d, Parties, § 53, p. 420.
As requisites to the maintenance of any class suit under our Equity Rule 31(a), the persons constituting the class must be so numerous as to make it impracticable to bring them all in before the court, and if so, such of them, one or more, as will fairly insure the adequate representation of all, may sue on behalf of all. These common requisites are averred in the bill and no specific ground of demurrer tests the sufficiency or form of these averments. One ground of demurrer does attack the sufficiency of the two named appellants to represent the class to determine whether a spurious class action is maintainable. The rule, however, is that one or more may sue on behalf of all, if such insure the adequate representation of all.
In Oppenhiemer v. F. J. Young and Co., Inc., 144 F.2d 387, 390 (2nd Cir., *59 1944), the court made this pertinent comment:
It follows that the standard of fair and adequate representation may not be as strict in a "spurious" type as in a "true" class action. Carroll v. American Federation of Musicians, 372 F.2d 155 (2d Cir., 1967), vacated on other grounds 391 U.S. 99, 88 S. Ct. 1562, 20 L. Ed. 2d 460, rehearing denied 393 U.S. 902, 89 S. Ct. 64, 21 L. Ed. 2d 189.
In speaking to Rule 23(a)(3) of the Federal Rules of Civil Procedure, as originally enacted, and thus by logical extension to Equity Rule 31(a)(3), § 62 of 59 Am. Jur.2d, Parties, p. 435, states:
The averments of the bills are substantially that, though contracts for loans were made by the appellants and the class, separate and apart, and at different times, in different amounts of money up to $300, and consequently, the recovery of each borrower may be different, the contracts were substantially similar, and all of those constituting the class were required under the contracts to pay the appellees illegal charges and usurious interest, exacted by the appellees in pursuance of a common and substantially identical scheme in the loan to each borrower in violation of the Small Loan Act. In our opinion this allegedly illegal practice presents common questions of law and fact sufficient to permit these appellants to maintain a representative class action under our Equity Rule 31(a)(3).
The appellees contend that the matters complained of do not present a cause for common relief as to the borrowers. We think the appellees' contention is clearly answered in the court's opinion in the case of Kainz v. Anheuser-Busch, Inc., 194 F.2d 737, 743 (7th Cir.), where it is stated:
We conclude that the bills were properly brought and are maintainable as representative "spurious" class actions under Alabama Equity Rule 31(a) subparagraph (3), and that the trial court erred in sustaining appellees' demurrers to this aspect or part of the amended and supplemental bills and in striking and deleting the same from the bills.
Opportunity for any borrowers of the same class as appellants to join or intervene in the cause, before the trial thereof, should be afforded those so desiring. The running of the statute of limitations as to such as will intervene shall be deemed to have been tolled at the time of filing of the original bill of complaint on behalf of the class. Moore's Federal Practice (2d Ed.), Vol. 3B, § 23.12, App.; Escott v. Barchris Construction Corporation, 340 F.2d 731, 733 (2d Cir., 1965).
The appellants have urged us in event of reversal to face anticipated procedural issues that may arise hereafter in the nisi prius court. It is elementary that, with limited exceptions, this is a court of appellate jurisdiction whose duty is to review matters passed upon or decided by the nisi prius court. It is not within our province to decide in advance questions not determined by the court below and reserved for decision by decree. Bean v. Northcutt, 240 Ala. 289, 199 So. 7 (1940); McDowell v. Columbia Pictures Corporation, 281 Ala. 438, 444, 203 So. 2d 454 (1967). We therefore decline to write to the matters requested by the appellants in brief.
For the reasons stated the cause is reversed and remanded. The order sustaining the appellees' demurrers to the class action aspect of the amended and supplemental bills of complaint and striking and deleting it from the cause is ordered set aside with direction that the said aspect of the bills be ordered reinstated and the cause proceed in accordance with the announcements herein.
Reversed and remanded with direction.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and JONES, JJ., concur.
MERRILL, COLEMAN, HARWOOD and MADDOX, JJ., dissent.
MADDOX, Justice (dissenting).
I respectfully dissent. In my judgment, the majority has today, in effect, overruled this Court's opinion and judgment in Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So. 2d 738, decided September 14, 1972. My views on the right to maintain a class suit to recover a statutory penalty are fully expressed in my special concurrence on application for rehearing in the Taylor case.
COLEMAN and HARWOOD, JJ., concur.
ON APPLICATION FOR REHEARING
MADDOX, Justice (dissenting).
I would grant the rehearing on the grounds stated in my separate opinion in *61 Taylor v. Major Finance Co., 289 Ala. 458, 268 So. 2d 738 (1972), and also to determine whether the action has become moot under the authority of Indiana Employment Security Division et al. v. Burney, ___ U.S. ___, 93 S. Ct. 883, 35 L. Ed. 2d 62, decided January 17, 1973.
MERRILL, COLEMAN and HARWOOD, JJ., concur in dissent. | March 8, 1973 |
1785f76b-345b-47e6-8607-b5ac30c15b73 | Speigle v. Chrysler Credit Corporation | 323 So. 2d 367 | N/A | Alabama | Alabama Supreme Court | 323 So. 2d 367 (1975)
In re W.J. SPEIGLE
v.
CHRYSLER CREDIT CORPORATION, a corporation, et al.
Ex parte W.J. Speigle.
SC 1543.
Supreme Court of Alabama.
November 26, 1975.
John Martin Galese, Birmingham, for petitioner.
No appearance for respondent.
BLOODWORTH, Justice.
Petition of W.J. Speigle for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Speigle v. Chrysler Credit Corp., a Corp. et al., 56 Ala.App. 469, 323 So. 2d 360.
Writ denied.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | November 26, 1975 |
e4268d52-7c87-4545-9085-8a8a18b5bb6e | Bassett v. State | 275 So. 2d 720 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 720 (1973)
In re McArthur BASSETT
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 146.
Supreme Court of Alabama.
February 8, 1973.
*721 William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for petitioner-appellee.
Rowe, Lane & Rowe, Enterprise, for respondent-appellant.
MADDOX, Justice.
The Court of Criminal Appeals, 49 Ala. App. 733, 275 So. 2d 713, with one judge dissenting, reversed the conviction of McArthur Bassett for possession of illicit drugs and remanded the cause to the circuit court. On petition by the State of Alabama for certiorari, we granted the writ in order to review the opinion and judgment of the Court of Criminal Appeals, on the issue framed by that court as follows:
The Court of Criminal Appeals answered the question in the negative, apparently on the ground that since the defendant was not arrested on the drug charge at the time of the search,[1] the search was not conducted incident to the arrest on the drug charge, and even admitting that the officers had probable cause to stop and search the vehicle in which the drugs were located in connection with a robbery investigation, *722 they could not seize the illicit drugs which turned up in the course of this search.
After a review of the law applicable to warrantless searches of automobiles, we are of the opinion that the judgment of the Court of Criminal Appeals is due to be reversed and remanded.
The facts of this case are strikingly similar to the factual situation presented in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). There, Chambers was one of four men arrested after the car in which they were riding was stopped by police shortly after an armed robbery of a service station. The arrests were made upon information given by the service station attendant and bystanders. The car was taken to the police station and searched without a warrant. The search disclosed two revolvers and cards bearing the name of an attendant at another service station who had been robbed at gunpoint a week earlier.
The Supreme Court, in Chambers v. Maroney, supra, found that the search of the car at the station house in that case was not unreasonable, and evidence obtained in the search was permitted to be introduced at the trial. Admittedly, all the guiding principles which apply to warrantless searches of automobiles are difficult to understand. The fact that there were three separate views expressed on the issue here by the Court of Criminal Appeals seems to indicate the difficulty which Fourth Amendment questions pose. But a few general principles seem to be fairly well established.
(1) Questions involving searches of motor cars or other things readily moved cannot be treated as questions arising out of searches of fixed structures like houses. Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964); Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).
(2) There is a limitation of timeplace upon the justifiable warrantless search incident to an arrest which is applicable in motor vehicle situations. Preston, supra; Chambers, supra; Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
(3) In some situations the permissible object of the search is limited to weapons or the fruits or implements of the crime which may be concealed or destroyed. Cf. Preston, supra; Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
The Court of Criminal Appeals admits that the officers had probable cause to search the automobile for fruits of the Dothan robbery, both on the streets of Enterprise and at the police station.[2] Two members of the court decided, however, that even though the illegal drugs were discovered during this admittedly valid warrantless search, the seizure was nevertheless invalid. The other member concurred that the cause should be reversed.
The opinion of two of the judges quotes from Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947), as follows:
The two judges also cite Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L.Ed. *723 2d 668 (1960), which holds that when an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.
We are aware that Harris, supra, has been overruled, in part, by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), but we believe the statements in Harris are still viable to the effect that when an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search, it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for. As we read Chimel, it only overruled Harris on the permissible scope of a search incident to an arrest. Harris had permitted a broad area within which a search could be conducted incident to a lawful arrest. Chimel substantially restricted the "search incident to an arrest" exception to the warrant requirement. But, Chimel, as we view it, did not address the question of the seizure of evidence during a valid search, whether with or without a warrant. Consequently, we believe that Harris, and Abel are still good precedent for the proposition that there is nothing in the Fourth Amendment which would inhibit the seizure by law enforcement agents of property, the possession of which is a crime, even though the officers were not aware that such property was on the premises when the search was initiated.
As we understand the opinion, the Court of Criminal Appeals distinguishes Harris and Abel, saying that in Harris and Abel there was a valid search warrant and here there was no warrant. We see no reason to make this distinction between a search with a warrant and a warrantless search. If the search was lawful, whether with or without a warrant, then the Harris and Abel rule would apply.
We recognize that every search of an automobile may not be valid, and we will not attempt to spell out in specific detail the many facets of the exclusionary rule of evidence under the Fourth Amendment which has anchored itself in our jurisprudence, because the rules which determine what is and is not permissible under the Fourth Amendment are far from exact and some of the decisions of the Supreme Court of the United States seem to conflict. But as we understand the principles which are applicable in fact situations similar to those present here, we conclude that the evidence obtained in this case was not inadmissible because of the method of its seizure. See United States v. LaVallee (2 Cir., 1966), 367 F.2d 351. The judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded to that court.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, COLEMAN, BLOODWORTH, McCALL and FAULKNER, JJ., concur.
JONES, J., concurs specially.
HARWOOD, J., not sitting.
JONES, Justice (concurring specially).
I agree with the majority in holding that the fruits of the warrantless search of the car made at the station house are admissible to prove a different and independent crime where such search and seizure is conducted with probable cause. I do not wish to be understood as agreeing that probable cause sufficient to support a warrantless search exists under the facts of this case. I feel that the otherwise mysterious absence of arrest of the accused, as well as the invalid search warrant, is explained by the lack of probable cause. In this respect I agree with the specially concurring opinion of Presiding Judge Cates.
*724 However, the limited review by this Court of the Court of Criminal Appeals constrains me to accept the finding of that Court that there was probable cause in this case.
[1] A search was conducted on the streets when the car was stopped and later at the police station. A search warrant, admittedly invalid, was obtained to conduct the search at the station.
[2] We recognize that Judge Cates apparently does not agree that there was probable cause to conduct any search. We do not address ourselves to this point since it appears that a majority of the Court of Criminal Appeals thought probable cause existed to search. | February 8, 1973 |
33160d2e-98db-4d7b-bcac-2c16c432e8a1 | Massey v. State | 272 So. 2d 270 | N/A | Alabama | Alabama Supreme Court | 272 So. 2d 270 (1973)
In re Elva Lee MASSEY
v.
STATE of Alabama.
Ex parte Elva Lee Massey.
SC 192.
Supreme Court of Alabama.
January 18, 1973.
Charles Tarter, Birmingham, for petitioner.
JONES, Justice.
Petition of Elva Lee Massey for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Massey v. State, 49 Ala.App. , 272 So. 2d 267.
Writ denied.
COLEMAN, BLOODWORTH, McCALL and FAULKNER, JJ., concur. | January 18, 1973 |
07c502bd-9f1e-49fb-8d17-ee05c74c525c | Trabits v. First National Bank of Mobile | 323 So. 2d 353 | N/A | Alabama | Alabama Supreme Court | 323 So. 2d 353 (1975)
Dorothy DaPonte TRABITS
v.
The FIRST NATIONAL BANK OF MOBILE, Alabama, a corporation.
SC 1182.
Supreme Court of Alabama.
November 26, 1975.
*355 Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant.
Hamilton, Butler, Riddick & Latour, Mobile, for appellee.
BLOODWORTH, Justice.
This appeal is from a judgment of the Circuit Court of Mobile County granting appellee-trustee's motion to dismiss appellant-beneficiary's complaint for failure to state a claim upon which relief can be granted.
The complaint sought a declaratory judgment construing the terms of a trust under which appellant is the sole life beneficiary and appellee-bank is the named trustee. Under the terms of the trust, the beneficiary is to receive a monthly payment of $400.0 for life. After her death, the remaining corpus is to be distributed to her children and grandchildren or, if she dies childless, to the executor or administrator of her estate.
In her complaint, the beneficiary makes specific claims for relief in the alternative:
The instrument in question is dated February 23, 1943. On that date appellant, the settlor's only child and the life beneficiary under his trust, was 26 years old. Under the original terms of the trust, the life beneficiary was to receive monthly payments in the amount of $100.00, payable out of trust income or principal, if necessary. Prior to his death in 1968, the settlor twice exercised a reserved power to increase the monthly payment to the beneficiary, by first raising the monthly payment to $150.00 and by later raising it to the present level at $400.00.
This power to increase the monthly payment to the life beneficiary was reserved by the following provision in the trust: "upon delivery of any additional securities, monies, property, or other evidences of indebtedness to the trustee, [the settlor] may amend the instructions with reference to the monthly payments to be made to the beneficiary by instructing in writing the additional amount of monthly payments to be made because of the additions to the corpus of the trust." In addition, the trust reserves to the settlor the power to add additional assets to the trust fund at any time.
In brief, the life beneficiary estimates that the trust corpus is "in excess of $150,000.00" and that $7,000.00 in excess trust income is being added annually to the corpus. The beneficiary argues that the present accumulation of corpus and the amount of annual excess trust income added to corpus are circumstances that were not foreseen by the settlor and that, in order to effectuate the original trust purpose, it has become necessary and proper either to increase *356 the size of the monthly payment to the beneficiary or to terminate the trust. As appellee, the trustee insists that the beneficiary's estimates as to the value of the trust corpus and excess trust income are substantially greater than the actual market values.
In further support of her cause, the life beneficiary argues that her lack of offspring and her inability to have offspring [she has undergone a hysterectomy] foreclose the possibility of eventual distribution to remaindermen since the only remaindermen specified under the terms of the trust are the life beneficiary's "children and grandchildren." The life beneficiary theorizes that because she is the present owner of a beneficial interest in the trust and that because such ownership will pass to her estate upon her death, all beneficial interests under the trust have been merged under what is her common ownership, for all practical purposes.
The life beneficiary relies on case law from various jurisdictions to support her contention that merger in the same party of both a life interest and a remainder interest in the res of a trust compels the termination of the trust. Along the same line she also argues that a trust may be terminated if all parties holding beneficial interests in the trust agree to its termination.
Whether the beneficiary is entitled to the relief she requests is not an issue raised by the instant appeal. Rather, the crucial question presented is whether the court was in error in granting the trustee's Rule 12(b) (6) motion to dismiss for failure to state a claim upon which relief can be granted. We think this was error and reverse and remand.
Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) is the case most often referred to in the federal cases as setting out the proper test of the sufficiency of a complaint under Rule 12(b) (6) of the Federal Rules of Civil Procedure. [That rule is exactly the same as Rule 12(b)(6), A.R. C.P.] In that case, the Supreme Court of the United States stated that:
355 U.S. at 45-46, 78 S. Ct. at 102, 2 L. Ed. 2d at 84. This test has been followed by this Court in the case of Bowling v. Pow, 293 Ala. 178, 301 So. 2d 55 (1974). In Watwood v. R. R. Dawson Bridge Co., 293 Ala. 578, 307 So. 2d 692 (1974), this Court again indicated its adoption of the rule set out in Conley v. Gibson: "[I]n reviewing the sufficiency of a complaint, it should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 293 Ala. at 581, 307 So. 2d at 693-94.
Under the facts of the instant case, the beneficiary claims to be entitled to a declaratory judgment in favor of the modification or termination of the trust in question. This Court has held that the proper test of the sufficiency of the complaint in a declaratory judgment proceeding is whether "the complaint states the substance of a bona fide justiciable controversy which should be settled." City of Bessemer v. Bessemer Theatres, Inc., 252 Ala. 117, 120, 39 So. 2d 658, 660-61 (1949). The rule set out in Corretti v. First Nat'l Bank, 290 Ala. 280, 276 So. 2d 141 (1973) is even more directly on point in the instant appeal. In Corretti this Court held that the sufficiency of the complaint in a declaratory judgment proceeding involving a trust is to be determined by the absence or presence of "bona fide doubt as to the true meaning and intent of the provisions of the instrument creating the trust or as to the particular course which the trustee should pursue." 290 Ala. at 286, 276 So. 2d at 146.
*357 The trustee in this cause insists that a justiciable controversy involving a trust can exist only where the terms of the instrument are unclear or ambiguous. Without venturing to comment on the ambiguity vel non of the instrument involved here, we point out that there are circumstances under which a court may exercise jurisdiction over a trust instrument in the absence of any ambiguity in the terms of the instrument itself. For example, deviation from the unambiguous terms of a trust is sometimes allowed under the doctrine of equitable deviation. See Thurlow v. Berry, 249 Ala. 597, 32 So. 2d 526 (1947).
The successful assertion of the theories upon which the beneficiary relies in seeking a modification or termination of the trust is dependent upon a judicial finding that the objects of the trust are those set out in her complaint. According to the Restatement (Second) of Trusts § 337, comment e at 159 (1959), if the trust purposes are expressed in the trust instrument, "a different purpose cannot be shown by extrinsic evidence." On the other hand, if the trust purposes are not expressly stated, they may be construed from the language of the trust instrument with the aid of extrinsic evidence of circumstances surrounding the creation of the trust. Id. Our reading of the trust instrument in this case has not revealed an express statement of the purposes of the trust. Moreover, it would be inappropriate at this juncture for this Court to speculate as to the settlor's possible purposes, since that is a matter properly reserved for resolution in the trial court in the first instance.
We are, of course, cognizant of the long-standing general rule that "neither the settlor, trustee, or beneficiaries can change the terms of the trust" unless such changes are expressly authorized in the trust instrument. G. Bogart, Handbook of the Law of Trusts § 145, at 573 (4th ed. 1963). Likewise, we are familiar with the prevailing American rule that if compliance with the trust terms "is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination." Restatement (Second) of Trusts § 337(2) (1959).
Although the foregoing rules represent well-settled principles of law, they are not controlling of the issues raised by this appeal. The determinative issue on this appeal is what standard should govern a motion for dismissal under Rule 12(b)(6) in a declaratory judgment proceeding. We think that the proper standard is the one set out in our case of Robinson v. Robinson, 273 Ala. 192, 136 So. 2d 889 (1962), although Robinson was rendered prior to the adoption of the Alabama Rules of Civil Procedure.
In Robinson, this Court held that "[t]he test of the sufficiency of [a complaint for declaratory relief] is not whether the complaint shows that the complainant will succeed in getting a declaration of rights in accordance with his theory or contention, but whether he is entitled to a declaration of rights at all." 273 Ala. at 195-96, 136 So. 2d at 891 (emphasis added). Our application of the Robinson standard compels us to the conclusion that the beneficiary in this case was entitled to a determination of her cause, on its merits. We cannot say that, as a matter of law, it is beyond doubt that the beneficiary could not prove any set of facts which would entitle her to some part of the relief requested in her complaint. Conley v. Gibson, supra.
In considering an issue involving a 12(b) (6) motion, the Fifth Circuit Court of Appeals has admonished that "the more extreme or even far-fetched is the asserted theory of liability, the more important it is that the conceptual legal theories be explored and assayed in the light of actual facts, not a pleader's supposition." Shull v. Pilot Life Ins. Co., 313 F.2d 445, 447 (5 Cir., 1963) (emphasis added). This Court's decision in Bowling v. Pow, 293 Ala. 178, 301 So. 2d 55 (1974), follows the policy advocated in the Shull case. In Bowling, members of this Court upheld the plaintiff's *358 right to a determination on the merits of his cause in spite of the Court's feeling that, "It may well be that the plaintiff has an extraordinarily hard road to travel to convince the trial court that he is entitled to have the trier of facts determine whether any part of the letter was understood in a defamatory sense . . ." 293 Ala. at 187-88, 301 So. 2d at 64.
The policy mandating restraint in the granting of motions under Rule 12(b) (6), adopted by both the federal and the Alabama systems, can be implemented by application of the standard set out in Conley v. Gibson. That standard requires that the Court first determine whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id., 355 U.S. at 45-46, 78 S. Ct. at 102, 2 L. Ed. 2d at 84. If the Court finds itself in doubt as to whether the plaintiff could prove such a set of facts, the motion to dismiss for failure to state a claim upon which relief can be granted must be denied. Of course, by denying a Rule 12(b)(6) motion under these circumstances and then considering the cause on its merits, the Court is not precluded from a later determination that the complainant is not entitled to the relief he seeks. In that event, the appropriate ruling is a summary judgment. We agree with the text book authorities that "[t]he motion for summary judgment provides a more expeditious and effective procedure [as contrasted to the motion for dismissal for failure to state a claim upon which relief can be granted] for quickly terminating an action that does not appear to merit relief on its substantive merits." 5 Wright and Miller, Federal Practice and Procedure § 1357, at 603-04 (1969).
Dismissal for failure to state a claim for which relief can be granted is a tool which should be used sparingly. In view of our inability to rid ourselves of all doubt that the beneficiary cannot prove any set of facts which would entitle her to relief, we reverse the ruling of the lower court in this cause and remand the cause for further consideration in the light of this opinion.
Reversed and remanded.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | November 26, 1975 |
0b90a263-81dd-4ccf-80b0-4a3fe75dee31 | Jenkins v. Lovelady | 273 So. 2d 189 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 189 (1973)
Norma Louise JENKINS
v.
Eileen J. LOVELADY et al.
SC 95.
Supreme Court of Alabama.
February 1, 1973.
*190 John E. Lunsford, Birmingham, for appellant.
Matt Scalici, Birmingham, for appellee, Eileen J. Lovelady.
Cabaniss, Johnston, Gardner & Clark and C. Henry Marston, Birmingham, for appellee, Protective Life Ins. Co.
PER CURIAM.
This is an appeal from a decree rendered in a proceeding which was commenced when Protective Life Insurance Company, a corporation, filed an interpleader action as authorized by Equity Rule 36 against Norma Louise Jenkins and Eileen J. Lovelady.
Protective deemed it wise to institute the proceeding because Mrs. Jenkins and Mrs. Lovelady each claimed to be the beneficiary of a $1,000.00 life insurance certificate which Protective had issued to Robert L. Jenkins on October 25, 1947, when he was an employee of the City of Birmingham which certificate was in force and effect at the time of Jenkin's death on July 15, 1971.
The insurance certificate which bore the identification 103-F was issued under Protective's Group Policy 172-G, as amended, which insured the lives of certain employees of the City of Birmingham, including Jenkins.
The original beneficiary designated on Certificate 103-F was the respondent Eileen J. Lovelady, a sister of the insured Robert L. Jenkins.
On or about June 25, 1959, the beneficiary on Certificate 103-F was changed to respondent Norma Louise Jenkins, who was at that time the wife of the insured Robert L. Jenkins.
Contemporaneously with the filing of its bill, Protective deposited with the Register of the Circuit Court of Jefferson County, in Equity, the sum of $1,000.00, the entire amount due under Certificate 103-F on account of the death of Robert L. Jenkins.
Protective in its bill prayed, among other things, that the trial court require the respondents to propound their claims to the insurance proceeds paid into court by Protective and to litigate between themselves the question of ownership of said proceeds and further prayed that the court determine the person who is legally entitled to those proceeds.
The respondent Norma Louise Jenkins, in her answer averred, in effect, that she was in possession of Certificate 103-F and that there had been no valid beneficiary change on said Certificate since she was designated as the beneficiary. She further averred in her answer that, on to-wit: October 18, 1966, after she was divorced from Robert L. Jenkins, she entered into "a written contract with the said Robert L. *191 Jenkins by the terms whereof she and the said Robert L. Jenkins agreed, for a valuable consideration, that she, as beneficiary in said policy of insurance, would not be changed but that she would remain the beneficiary therein and be entitled to the proceeds thereof in consideration of her promise to pay the premiums thereon as the same became due, which said contract is in writing and a copy thereof is attached hereto and made Exhibit `A' to this answer as though set out herein in detail. And this respondent further avers that pursuant to the terms and provisions of said written contract, she did after the date thereof to-wit October 18, 1966, make payment of all of the premiums coming due on said policy of insurance."
The substance of the answer filed by the respondent Mrs. Eileen J. Lovelady is that she is entitled to the proceeds of Certificate 103-F because of a change in beneficiary made by Robert L. Jenkins on or about July 2, 1971, whereby she was designated as the person to receive the proceeds of said Certificate 103-F upon the death of Jenkins.
The trial court after a hearing wherein the testimony was taken ore tenus decreed, in effect, that after the costs of the proceeding were paid from the interpleaded fund that the Register pay from that fund the sum of $100.00 to counsel for Protective and pay to the respondent, Norma Louise Jenkins, the sum of $285.00. The Register was further directed to pay the balance of the interpleaded fund to the respondent Eileen J. Lovelady.
From that decree the respondent, Mrs. Norma Louise Jenkins, appealed to this Court.
The appellant, Mrs. Jenkins has made three assignments of error, but we will treat only Assignment 3 in that it seems to include the matters about which Mrs. Jenkins complains in her assignments numbers 1 and 2.
Assignment of Error 3 reads: "3. The Court erred in failing to award all of the proceeds of the interpleader (sic) funds, including attorney fees, to appellant."
We think we would be entirely unjustified in construing Assignment 3 as complaining of the court's action in requiring the costs of the proceedings to be paid from the interpleaded funds, so we will give no consideration to that question other than to point out that under the express terms of Equity Rule 36, the trial court in an action of this kind "may tax costs at its discretion."
Robert L. Jenkins to whom we will sometimes hereinafter refer as the insured was a member of the Birmingham Fire Department on October 25, 1947, the day on which Protective issued Certificate 103-F insuring his life in the sum of $1,000.00 in which certificate his sister Eileen J. Lovelady was designated the beneficiary.
Insured retired from his position with the City of Birmingham on January 26, 1958. On May 28, 1958, he married the appellant, Norma Louise Jenkins, to whom we will sometimes hereinafter refer simply as Mrs. Jenkins.
Under the provisions of Certificate 103-F and those of Protective's Group Policy 172-B, as amended, insured reserved the right to change the beneficiary and he exercised this right to the end that Mrs. Jenkins became the beneficiary of Certificate 103-F on June 25, 1959. Certificate 103-F bears an endorsement made by Protective showing that the change of beneficiary was effective as of the date last mentioned.
Insured and Mrs. Jenkins were divorced on August 6, 1966. On October 18, 1966, they signed the following instrument:
I told Louise that I didn't want any of my policies, except my burial insurance policy and that I wanted to (sic) burried at Morris. I also told her that I trusted her and that if I ever did want any of my policies that I would pay her in full (in one lump-sum payment) for all of the premiums that she had paid on any policy (or policies) that I wanted and that then I would get the policy (or policies).
Insured's life was apparently insured by three companies at the time of his death. In effect was a $2,500.00 policy issued by Liberty National Life Insurance Company, the proceeds of which were paid to Mrs. Jenkins the named beneficiary. Protective's Certificate 103-F, the subject of this litigation, was also in effect. The record tends to show that The Prudential Insurance Company of America had insured the lives of certain employees of the City of Birmingham, including insured, under its Group Policy G-4071 and its Certificate 923.
Mrs. Jenkins paid directly to Liberty National Life Insurance Company the premiums on its policy as they became due. The City of Birmingham paid the premiums on the two group policies and deducted from insured's monthly pension check the premiums paid for that month. The amount deducted monthly does not appear except as indicated in the agreement of October 18, 1966, when the parties to that agreement treated the monthly deduction for both group policies or certificates as being $5.00. There is testimony in the record given by the payroll supervisor for the City of Birmingham to the effect that the amount deducted from insured's monthly pension check because of the payment by the City of the premium due on the Protective policy "xx was somewhat less than $1.00 a month." There is no such testimony in regard to the amount paid Prudential each month or the amount of the coverage afforded by the Prudential insurance.
According to Mrs. Jenkins, she paid insured $5.00 each month to reimburse him for the amount deducted from his monthly pension check. Her testimony was not disputed, and the trial court must have believed her, because it awarded her the sum of $285.00 out of the interpleaded funds which represents the amount she would have paid if she began paying $5.00 in the month of October, 1966, and paid $5.00 each month thereafter through June, 1971. Apparently, no insurance premium was deducted for the month of July, 1971, the month in which insured died.
Insured was admitted to the Veterans Administration Hospital in Birmingham on or about June 8, 1971, on an application signed by Mrs. Jenkins who drove him to the hospital upon being advised of his illness by Mrs. Lovelady.
Exploratory surgery performed on or about June 16, 1971, revealed that insured had cancer of the esophagus. According *193 to Mrs. Lovelady, insured, while in the hospital, expressed an interest in making her the beneficiary of Certificate 103-F which contained the following provision: "The right to change the beneficiary is reserved." But it seems to be admitted by all parties that the contractual provisions which governed the change of beneficiary were included in Group Policy 172-G as amended. Those provisions read:
Mrs. Lovelady contacted an attorney relative to the change of beneficiary. The attorney talked with officials or employees of the City of Birmingham relative to that change, but no attempt was made to show what was said in that conversation.
However, Mrs. Lovelady, thereafter, obtained a form which insured could use in submitting to Protective his request for a change of beneficiary on Certificate 103-F. Mrs. Lovelady carried the form to insured while he was in the hospital. On June 24, 1971, insured signed the form wherein the requested that Mrs. Lovelady be made the beneficiary of Protective's "Group Policy No. 103-F," obviously an intended reference to Certificate 103-F. Insured's signature was witnessed by one H. R. Bowers. The form which insured signed contained the following provision:
The certificate was not sent to Protective along with the form wherein a request for change of beneficiary was made. The certificate was in the possession of Mrs. Jenkins, and no request was made of her to deliver the certificate to the insured or to Protective. According to Mrs. Jenkins, the insured knew that the certificate was in her possession.
In lieu of sending the certificate to Protective along with the form, those who were handling the matter sent an affidavit to the effect that the certificate had been lost. The form and the affidavit reached Protective on or about July 2, 1971. On or about July 13, 1971, Protective advised the City of Birmingham that it could not effectuate the change of beneficiary in that the certificate had not been surrendered to it nor had the named beneficiary therein signed an indemnity agreement, a practice required by Protective when a certificate was not surrendered along with the request for change of beneficiary. At the time of insured's death two days later, Mrs. Jenkins remained the named beneficiary on Certificate 103-F and on the records of Protective.
There was evidence adduced on behalf of Mrs. Lovelady to the effect that on several occasions prior to his confinement in the hospital, the insured expressed an intention to name Mrs. Lovelady as the beneficiary on Certificate 103-F. It was stated that he expressed such intention on July 24, 1971, the day on which he signed the request for change of beneficiary at which time according to the witness he was alert and mentally competent. Mrs. Lovelady stated that she did not request that she be named as the beneficiary on said certificate. One witness who testified on behalf of Mrs. Lovelady said that insured had expressed the hope or desire that Mrs. Jenkins remain away from the hospital and Mrs. Lovelady testified that insured told her: "* * * he did not love her [Mrs. Jenkins] that he never had, and he had never told her he loved her."
On the other hand, the evidence shows without doubt that subsequent to the divorce and prior to the time the insured entered the hospital, he and Mrs. Jenkins *194 were on friendly terms. His pension check continued to go to her place of residence until shortly before his death when according to Mrs. Lovelady, one such check came to her residence in accordance with her instruction. Insured worked a garden for Mrs. Jenkins. He mowed her lawn and did other work around her home for all of which he was paid by Mrs. Jenkins. It was Mrs. Jenkins who paid his fine and secured his release from jail on occasions. Insured was an alcoholic.
The doctors in charge of insured while he was in the Veterans Administration Hospital advised members of his family that in view of the terminal nature of his illness, he could do as well out of the hospital as in it. On July 1, 1971, Mrs. Jenkins and a brother of insured took him to his apartment. It was Mrs. Jenkins who dressed him before he left the hospital. In the late afternoon of that day or that night, he was driven by members of his family, including Mrs. Lovelady to her home in Morris where he remained until July 14, 1971, when he was returned to the Veterans Administration Hospital where he died the next day. Mrs. Jenkins was with insured in his apartment at the time members of his family removed him to Morris.
Appellee argues in support of the trial court's decree that the facts detailed above show that appellee, Mrs. Lovelady, was in fact the beneficiary of Certificate 103-F at the time of insured's death despite the fact that Protective had not endorsed the change on the said certificate nor had it otherwise recognized her as the beneficiary on its records. Appellee cites our case of Flowers v. Flowers, 284 Ala. 230, 224 So. 2d 590, where it is said, in part, as follows:
The threshold question is the effect of the agreement of October 18, 1966.
A mere beneficiary in a policy of old line or ordinary life insurance which contains a provision for a change of beneficiary by the insured, has only an expectancy but no vested right until loss occurs. West End Sav. Bank v. Goodwin, 223 Ala. 185, 135 So. 161; Flowers v. Flowers, supra; Stephenson v. Westbrook, 286 Ala. 620, 244 So. 2d 569; Metropolitan Life Ins. Co. v. Bramlett, 224 Ala. 473, 140 So. 752; Appleman, Insurance Law and Practice, § 921.
But that rule has no application where the beneficiary has acquired a vested interest by virtue of a contract with insured. McDonald v. McDonald, 215 Ala. 179, 110 So. 291; West End Sav. Bank v. Goodwin, supra. See Summers v. Summers, 218 Ala. 420, 118 So. 912; Williams v. Williams, 276 Ala. 43, 158 So. 2d 901; 46 C.J.S. Insurance § 1173(2), p. 64, Note 20.
While the precise question is res nova, in this jurisdiction, it has been held by a number of courts in other states that where the person designated as beneficiary pays the premiums pursuant to an agreement that he shall remain the beneficiary or receive the proceeds of the policy, such person acquires a vested right in the policy regardless of whether the insured retains the right, under the terms of the policy, to change the beneficiary. 46 C.J.S. Insurance *195 § 1173(2), pp. 66, 67, Note 40; Appleman, Insurance Law and Practice, § 922; Leal v. Leal, (Tex.Civ.App.) 401 S.W.2d 293; and cases cited: Katzman v. Aetna Life Ins. Co., 309 N.Y. 197, 128 N.E.2d 307; Matthews v. Matthews, 163 Kan. 755, 186 P.2d 233; Wurzburg v. New York Life Ins. Co., 140 Tenn. 59, 203 S.W. 332; McMullen v. St. Lucie County Bank, 128 Fla. 745, 175 So. 721; Massachusetts Linotyping Corp. v. Fielding, 312 Mass. 147, 43 N.E.2d 521; Cronan v. Metropolitan Life Ins., 50 R.I. 323, 147 A. 618; In re: Szymanski's Estate, 109 Pa.Super. 555, 167 A. 420; Jacobson v. New York Life Ins. Co., 199 Iowa 770, 202 N.W. 578; Reilly v. Henry, 187 Ark. 420, 60 S.W.2d 1023.
As we have heretofore pointed out, the trial court accepted as true Mrs. Jenkins undisputed testimony to the effect that she reimbursed the insured for all moneys deducted from his monthly pension checks and used to pay the life insurance premiums. The evidence shows without dispute that Mrs. Jenkins had a group life insurance policy wherein the insured, along with others, was named as a beneficiary. The amount he would have received had Mrs. Jenkins predeceased him was considerably less than that which she would receive under the policies on the life of the insured on which she paid premiums. The amount insured would have received had Mrs. Jenkins predeceased him was $500.00, but that fact does not operate to vitiate the contract of October 18, 1966.
Appellee, Mrs. Lovelady contends that the contract of October 18, 1966, was invalid because at that time Mrs. Jenkins had no insurable interest in the life of the insured from whom she had been divorced.
It takes no citation of authority to support the proposition that a husband has an insurable interest in the life of his wife and that a wife has an insurable interest in the life of her husband.
The divorce did not change that interest. In Flowers v. Flowers, supra, after citing Couch on Insurance 2d Edition, Vol. 4, Sec. 27: 111, pp. 647, 648, this court held, in effect, that a divorce decree, in and of itself, did not affect the wife-beneficiary's right to receive proceeds of a group life policy, which did not provide that rights of the beneficiary were conditioned upon continuance of the marriage relation. No such provision is contained in the policy and certificate here under consideration.
A case very much in point is that of Marquet v. Insurance Co., 128 Tenn. 213, 159 S.W. 733. In that case, a policy of insurance was taken out on the life of a husband for his wife's benefit. Prior to the husband's death, the wife obtained a divorce. She continued, however, to pay premiums on the policy until the death of her husband. Payment was resisted by the company on the theory that she had no insurable interest after the divorce. The Tennessee court held that the wife's interest in the life of her husband was to be tested as of the date of the original contract, when her interest in his life was that of a wife, and clearly insurable. The Tennessee court held, as this Court has held, that the divorce did not invalidate a preexisting valid contract of insurance.
In McMullen v. St. Lucie County Bank, supra, it was held that if an insurable interest existed at the time the insurance was secured, the fact that such interest is later cut off or for other reasons ceases to exist is of no consequence. The beneficiary who continued to pay the premiums was entitled to enforce collection of the proceeds of the policy.
Insured never made demand upon Mrs. Jenkins for the Protective policy, and he made no offer to reimburse her in one lump-sum payment or otherwise for the premiums which she had paid on that policy. So the obligation of the October 18, *196 1966, agreement was in force and effect at the time of the insured's death.
We are clear to the conclusion that in view of the contract of October 18, 1966, the insured was without any right to exercise the power of change of beneficiary contained in Certificate 103-F and Policy No. 172-G, supra, and that said contract rendered ineffectual any attempt of the insured to divest the appellant, Mrs. Jenkins, of her interest therein.
As heretofore shown the trial court ordered the Register to pay out of the interpleaded funds the sum of $100.00 to counsel for Protective. We are inclined to the view that this was an inadvertence. The record shows the following colloquy between the court and counsel for Protective:
Mr. Morston was counsel for Protective and in fact apparently prepared the brief filed here on behalf of Protective wherein no effort is made to challenge Mrs. Jenkins' assertion that the trial court erred in awarding an attorney's fee to Protective in view of the waiver as heretofore indicated.
It is the opinion of this Court after a careful review of the record and the briefs filed by the respective parties that Mrs. Jenkins is entitled to receive all of the interpleaded funds other than the amount needed to pay the costs incurred in the trial court.
It follows that the decree of the trial court is reversed and the cause remanded for the rendition of a decree in keeping with this opinion.
The foregoing opinion was prepared by Thomas S. Lawson, Supernumerary Associate Justice, and adopted by the Court as its opinion.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur. | February 1, 1973 |
e86f5531-3571-43fa-864c-966d0e1fd32a | Southern Natural Gas Company v. Ross | 275 So. 2d 143 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 143 (1973)
In re SOUTHERN NATURAL GAS COMPANY, a corporation
v.
Kenneth ROSS et al.
Ex parte Southern Natural Gas Company, a corporation.
SC 46.
Supreme Court of Alabama.
March 8, 1973.
Rehearing Denied April 5, 1973.
Huey, Stone & Patton, Bessemer, for petitioner.
Lee Bains, Bessemer, for respondents.
*144 MERRILL, Justice.
Petitioner, Southern Natural Gas Company, filed a petition to condemn a right of way across the Ross property on April 22, 1965. The probate court ordered the condemnation and both parties appealed to circuit court. More than five years later, the cause was tried to a jury and Ross and his wife were awarded $1,600.00 and interest. Petitioner appealed to the Court of Civil Appeals and the judgment was affirmed, 49 Ala.App. 625, 275 So. 2d 138. We granted the writ of certiorari and the cause was argued and submitted in this court on February 13, 1973.
The two questions raised in the Court of Civil Appeals were whether the condemnees were entitled to interest, and if so, when it began, and secondly, whether the amount of the award was excessive.
The amount of compensation awarded was within the range of the testimony and we agree with the opinion of the Court of Civil Appeals on that question. We also agree with that court that the condemnees were entitled to interest, but we disagree with the date in the opinion from which the interest is to be computed.
Both the trial court and the Court of Civil Appeals fixed the date for the beginning of interest as June 22, 1965. The opinion we are reviewing does not state what happened on June 22, 1965, but the briefs of all parties and the record show that June 22 was the date of the order of the probate court condemning the property after showing that the amount of the award had been paid into court.
The opinion of the Court of Civil Appeals states:
Title 19, § 16, Code 1940, requires the probate court to "make orders of condemnation in pursuance thereof (the report of the commissioners) upon the payment of the damages and compensation so assessed and reported or the deposit of the same in court."
Here, the amount of the award was paid into court and the probate court properly condemned the property for the right of way and properly entered in its judgment that "the petitioner hereby is given and awarded the right to the immediate possession of the property hereinafter described for the uses and purposes set out in the said petition."
The trial court and the Court of Civil Appeals treated this probate court judgment as final and said that the "condemnor obtained the right to possession of the property condemned on June 22, 1965."
The only times such a probate court judgment becomes final are those where the condemnee accepts the award and no appeal is taken by either party within thirty days. When this happens, the condemnation proceeding is ended and there is no interest, and the question of interest does not arise.
We think the import of Chapter 1, Eminent Domain, Tit. 19, §§ 1-31, is that, except for situations described in the preceding paragraph, the judgment in the probate court is not final or absolute. To illustrate, we cite two sections. Section 17 provides:
Either party has the right to appeal and the trial is de novo. On appeal under this section, we have held that the court tries de novo not only the question of damages and compensation but also the right to condemn under Tit. 19, § 7; with the question of damages and compensation being a question for the jury, and the right to condemn to be determined by the court without the aid of the jury. Housing Authority of City of Jasper v. Deason, 284 Ala. 431, 225 So. 2d 838; Cooper v. State, 274 Ala. 683, 151 So. 2d 399; Calhoun County v. Logan, 262 Ala. 586, 80 So. 2d 529; City of Birmingham v. Brown, 241 Ala. 203, 2 So. 2d 305.
Title 19, § 25, provides:
It is apparent that condemnation proceedings may go through the circuit court, but if the award has not been paid into court, perhaps because the condemnor considered the award excessive, then the order of condemnation is no longer effective, nor is the amount of the award payable to the landowner.
In Alabama Midland Railway Co. v. Newton, 94 Ala. 443, 10 So. 89, this court, per Coleman, J., the grandfather of Mr. Justice Coleman of the present court, said:
To the same effect are Stout v. Limestone County, 211 Ala. 227, 100 So. 352[1], and State v. Pettis, 275 Ala. 450, 156 So. 2d 137 [2].
We think we have demonstrated that the probate court judgment is not absolute when an appeal is taken, as here, and we have already stated that the award was paid into probate court.
The condemnor appealed from the June 22 judgment on June 29 and the condemnee cross-appealed on July 9, 1965, and this transferred the cause to the circuit court because the appeals were taken within thirty days.
There is no question but that the condemnor went into possession and installed the pipeline long before the hearing in circuit court, and acting pursuant to Tit. 19, § 18, as amended, filed the bond to permit it the right of entry on the land. Section 18, as amended, which is in accord
*146 with Section 235, Constitution of Alabama 1901, provides:
When this bond in double the amount of the award was approved, the condemnor for the first time had the right to enter the land and start to work. That was the first time in this proceeding that the owners lost the right to use the condemned strip as they pleased. This was the first day on which interest could have started, and we think that the interest should have been computed from the day the bond was approved and filed, July 26, 1965.
In Alabama Power Company v. Nichols, 282 Ala. 704, 213 So. 2d 912, the condemnor had made the bond required by § 18, as amended, pending trial in circuit court and had taken possession of the lands and flooded some of it, but then sought to dismiss its appeal in circuit court. This court held that the appeal could not be dismissed and affirmed the judgment secured by the condemnee in that court. The opinion quoted the following from Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143:
In Adwell, this court also said:
We think Nichols and Adwell are plain that once the condemnor has taken possession of the condemned land, the condemnor cannot then change its mind and dismiss or abandon the proceeding without the condemnee's consent, and the condemnee has a right to a trial in circuit court.
A second reason for holding the date of the approval and filing of the bond as the date interest begins is that the law has long been in this state that if a party which has the right to condemn property, goes into possession of the property prior to filing condemnation proceedings, the interest begins as of the date of entry. It was so held in Southern Railway Co. v. *147 Cowan, 129 Ala. 577, 29 So. 985, and followed in Hays v. Ingham-Burnett Lumber Co., 217 Ala. 524, 116 So. 689, and Southern Ry. Co. v. Clark, 220 Ala. 555, 126 So. 855, where it was said:
A third reason is that the filing and approval date on the bond required by § 18, as amended, is certain, a matter of public record and is self-proving and does not require additional proof to ascertain the date from which the interest begins.
Petitioner argues that it was held in both Adwell, supra, and McLemore v. Alabama Power Co., 285 Ala. 20, 228 So. 2d 780, that (quoting from McLemore):
This statement is correct and is supported by the cases. Ordinarily, no condemnor puts up the bond required by § 18, as amended, unless it is ready to take possession of the condemned property. But since there could be a dispute as to the actual date of taking possession, and since the filing of the approved bond makes the date on which the condemnor became precluded from abandoning the condemnation proceeding, and also marks the date when the condemnor may take possession of the condemned property without becoming a trespasser, and without having paid the amount of compensation and damagesbecause it has not been finally determined as the case has been appealedwe think the better and more definite date on which interest begins to accrue is the date of filing the approved bond under § 18, as amended, and that date in the instant case was July 26, 1965.
It follows that the opinion of the Court of Civil Appeals should be corrected and affirmed.
One point not involved in the instant case should be noted to avoid confusion in those cases where the State, or exempted counties and municipalities (See Tit. 19, § 18, as amended), is the condemnor.
Title 7, § 72, Code 1940, exempts the State from making bonds or giving security. We have specifically held that the State is not required to give the bonds required by Tit. 7, § 760 (double bond ad quod damnum proceedings) and Tit. 19, § 23, in eminent domain proceedings. State v. Barnhill, 280 Ala. 574, 196 So. 2d 691. Under that case and the authorities cited, it is evident that the State is not required to give the bonds required in Tit. 19, § 18, as amended, or any other sections in the eminent domain chapter. That being true, what is the date when interest begins to accrue when the State or an exempted political subdivision desires to enter the condemned property pending appeal?
The answer in such cases is that interest begins to accrue when the amount of the last adjudicated award is paid into court. The State does not usually pay the award made in the probate court until it desires possession of the property. It then pays the amount of the award and goes into possession and its obligations are the same from that moment on as with any other condemnor as already discussed, that is, it cannot dismiss the proceedings without the consent of the condemnee and it must pay whatever amount is finally awarded the condemnee. So, the definite date of public record, the date of the payment of the award into court is the date from which interest would accrue.
Corrected and affirmed.
All the Justices concur. | March 8, 1973 |
dc63e5ae-7b64-4a88-a6e1-cbc0d6fe611e | Marshall County Board of Edn. v. State Tenure Com'n | 280 So. 2d 130 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 130 (1973)
In re MARSHALL COUNTY BOARD OF EDUCATION
v.
STATE TENURE COMMISSION for the State of Alabama et al.
Ex parte Marshall County Board of Education.
SC 110.
Supreme Court of Alabama.
February 8, 1973.
Rehearing Denied March 8, 1973.
*132 T. J. Carnes, Albertville, for petitioner.
Lusk & Lusk, Guntersville, for respondents.
Louis B. Lusk, Sp. Asst. Atty. Gen., for the State Tenure Comm., respondent.
MERRILL, Justice.
Petitioner seeks a review by certiorari of the judgment of the Court of Civil Appeals which affirmed a judgment of the circuit court denying petitioner's petition for mandamus.
This is a companion case and a sequel to Marshall County Board of Education v. State Tenure Commission, 291 Ala. 273, 280 So. 2d 114, this day decided. In that case, the Board of Education (hereinafter called the Board) sought to transfer Arther Baugh from the principalship of Albertville High School to teacher and coach of another high school in the county under the transfer provisions of Tit. 52, § 355, Code 1940, as amended. Baugh appealed to the State Tenure Commission (hereinafter called the Commission) and the Commission held that the Board's action was null and void on August 7, 1970.
On August 13, 1970, the Board passed a resolution to cancel Baugh's contract under Tit. 52, § 358, as amended, and after proper notice and hearing, Baugh's contract was cancelled. He appealed to the Commission and it decided that the cancellation was the result of political or personal reasons. The Board sought review in the circuit court by mandamus; the relief sought was denied; the Board appealed to the Court of Civil Appeals, where the judgment of the circuit court was affirmed.
Petitioner cites cases in which this court reviewed the evidence taken before the county board in transfer and cancellation of contract cases. It is so stated in State v. Board of Education of Fairfield, 252 Ala. 254, 40 So. 2d 689; Autry v. Board of Education of Randolph County, 285 Ala. 617, 235 So. 2d 651, and State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So. 2d 823.
But all of those cases were decided before the Court of Civil Appeals was created, effective October 1, 1969, by Act No. 987, Acts of Alabama 1969, p. 1744. That *133 Act gives exclusive appellate jurisdiction of cases like the instant one to the Court of Civil Appeals (§ 3 of the Act) and § 32 of the Act and our Supreme Court Rule 39, as amended, provide for review in this court by certiorari and the mechanics of that limited review. Therefore, we do not review all the evidence taken before the county board in such cases. That duty is now on the Court of Civil Appeals.
While on the subject of scope of review, we answer a contention of the Tenure Commission made in brief where it is stated, "we think there are good reasons for allowing the Tenure Commission a somewhat broader scope of review than is ordinarily permitted to Courts reviewing decisions of administrative agencies." We cannot agree.
The Legislature set the scope of review. In transfer cases of tenured teachers, the scope of review by the Commission is "whether such action was taken for political or personal reasons" and that action was not arbitrarily unjust. Tit. 52, § 357. In cancellation of contract cases, the scope of review is the same, § 360, although the "political or personal reasons" is an amendment to § 358. No appellate or trial court in this state has the right to broaden the scope of review of the Commission. Section 360 states, "On said appeal the commission will consider the case on the record of the proceedings before the said board and the evidence as recorded at such hearing."
That is the universal rule relating to appeals in this state where the case is not de novo but reviewed on the record made in the court below. The only evidence before the Commission is that which was taken before the Board and information from no other sources should be sought or considered.
Title 52, § 358, as amended, provides:
The pertinent part of the decision of the Commission was:
The words "political" and "personal" have many different meanings. The definition of "personal reasons" as used in the statute under consideration, cited in 32 Words & Phrases, Personal Reasons, Pocket Part, p. 63, is that which the Court of Civil Appeals retracted in the opinion presently before us for review. We make no attempt to give the various definitions and distinctions found in the dictionary and court decisions. We think it is generally understood among laymen as well as lawyers what the Legislature meant when it added the provisions in §§ 357 and 358 that the transfer or cancellation of the contract should not be made "for political or personal reasons."
We think the political reasons the Legislature had in mind in the use of the *134 words in these statutes were that no tenured teacher could be transferred or discharged on the ground that the teacher did not belong to the same political party that a majority of the board members belonged, or that the teacher had voted for a political opponent of the board, or that the teacher had or had not professed a political preference in any political race, or that the teacher had become a candidate for public office, or for any similar political activity we have not specifically mentioned. In short, the Board cannot indirectly punish a teacher for that teacher's political activity or that teacher's refraining from political activity.
It is common knowledge that whenever anyone on the public payroll is involuntarily transferred to another job or discharged, or even when charges are preferred, the inevitable response is that the reason is "politics." And the claim of politics becomes more shrill when the hirer and firer is a body of elected officials and that body has to take its action by a majority vote.
Under our statutes, no tenured teacher can be transferred or discharged without a majority vote of the Board of Education, and that holding cannot be affirmed or rejected by the Tenure Commission except by majority vote. But those mere facts do not make either body's action political in the sense it is used in the statute.
We think the word "personal" as used in the tenure statute denotes a personal bias, prejudice, or antipathy on the part of one or more of the Board members toward the teacher; and when it influences a Board member's vote when that member is exercising a quasi-judicial function in voting on a transfer or cancellation. Personal is in contrast with judicial; it characterizes an attitude of extrajudicial origin.
There are two sides to the "political and personal reasons" coin. If a tenured teacher, regardless of how incompetent he may have become, decided that he did not want his contract cancelled, he could once a year publicly criticize the actions of the Board (political) and castigate the integrity of the Board members (personal) and always show that any attempt to get rid of him was for "political and personal reasons," but we do not think any Tenure Commission or any court would set aside a cancellation of his contract on that showing if, in fact, he was incompetent.
The Court of Civil Appeals quoted at length from State v. Board of Education of Fairfield, 252 Ala. 254, 40 So. 2d 689, to support its holding that a tenured teacher cannot have his contract cancelled by the Board if the Superintendent of Education has political or personal reasons for wanting the teacher's contract cancelled, but no evidence is listed that the Board acted for those reasons. We do not think the Fairfield case so holds. In that case, the teacher sought to show that the Superintendent had a personal dislike for her and refused to let her take a test when he had permitted other teachers to take it at a subsequent date from the date originally set. The Superintendent also refused to answer questions which could have shown bias or prejudice against the teacher. This court held that the hearing "served the purpose of enabling the board of education to hear both sides of the case" and that the teacher was entitled to have the Superintendent answer these questions. "His answers thereto could have materially affected the final decision of the board of education." (Emphasis supplied.) But the teacher was prevented from presenting evidence tending to show that the proceedings to cancel her contract, which was cancelled because of insubordination, were motivated by personal reasons. Certainly, she should have been permitted to show, if she could, the personal feeling of the Superintendent toward her. But unless she could show a carry-over of that dislike to the members of the board, she would not be able to attribute political or personal reasons to the *135 board, the only people who could cancel her contract for insubordination.
We cannot agree with petitioner that the words in the last clause of § 358, "but cancellation may not be made for political or personal reasons" are meaningless surplusage. We have tried to show that the Legislature put them there for a purpose, and they should be considered and applied, but as we shall show later, they are not so dominantly important as to nullify all Board actions.
We think the Legislature intended that no teacher should be transferred or have his contract cancelled if his transfer either was grounded exclusively or primarily on political or personal reasons.
The general administration and supervision of the public schools of each county is vested in the county board of education. Tit. 52, § 62.
Only the employing board of education has the authority to cancel the contract of a tenured teacher, and that only after due notice and a hearing. Tit. 52, § 359, as amended.
The action of the employing board shall be final in its cancellation of a teacher's contract provided such action was in compliance with Chapter 13, Code 1940 (§ 351 et seq.) and no appeal is taken within fifteen days. Tit. 52, § 360.
In Woods v. Board of Education of Walker County, 259 Ala. 559, 67 So. 2d 840, this court said:
There is no contention that the statutory procedures were not complied with, and the record shows that there were three volumes of recorded testimony, with over sixty witnesses testifying before the Board. After the hearing, the Board cancelled Baugh's contract on the grounds of incompetency and insubordination, two grounds in § 358 as grounds for cancellation. The appeal to the Commission is not for a de novo trial; and the only question for decision by the Tenure Commission was, since the action was in compliance with the chapter on Teacher's Tenure, whether the action of the Board was "arbitrarily unjust." § 360.
We have previously quoted the pertinent part of the order of the Commission. In short, it held that the cancellation of Baugh's contract "was motivated by political or personal reasons," but went further and stated that it "makes no finding as to the competency or incompetency of Mr. Baugh" or whether he "was guilty of insubordination as charged by the Board."
We think the order in its present form was unfair to both sides. It was unfair to the Board because no reason is given why the Board's decision was unjust. Even though the Board is the only body which can hire, transfer or discharge tenured teachers, and although it is the only body charged with administration and supervision of schools, the determination of the educational policy of the county and the prescribing of rules and regulations for the conduct and management of the county schools (§§ 62, 73), and it held a long hearing in this case, the only explanation given by the Commission is that the cancellation of Baugh's contract "was motivated by political or personal reasons." It is not stated whose political or personal reasons *136 and under the order those reasons must be attributed to the Board, but at the same time, there is a strong inference in the opinion of the Court of Civil Appeals that there was no evidence of political or personal reasons on the part of any member of the Board.
The order is also unfair to Baugh. It states that the Commission makes no finding as to the charges of incompetency or insubordination which the Board found to be supported by the evidence adduced at the hearing. Although the Commission's order had the effect of permitting Baugh to retain his job, there is, inferentially, the stigma of proven charges of incompetency and insubordination which the Commission expressly refused to pass upon. If either or both were not sustained by the evidence, the Commission should have so stated.
We also note that the order is inadequate because the case may be, as here, ultimately reviewed in this court. The petitioner charges in brief: "There was absolutely no testimony that any member of the Marshall County Board of Education was motivated by political or personal reasons in proposing the cancellation of Arthur Baugh's contract. Not only was there no testimony to that effect, there was not even a charge." We recall no refutation of that statement in any of the briefs filed here on behalf of Baugh, the Commission or amicus curiae.
The order of the Commission sheds no light on what the political or personal reasons were, to whom they were attributed, their background, what motivated whom, or any other pertinent information. The only reason given is copying the general words of the statute with no comment or explanation.
The judgment of the circuit court does not mention any reasons; it merely found "that the action of the State Tenure Commission complied with the provisions of said Chapter 13 (Tit. 52) and that the decision of the Commission of December 3, 1970, was not unjust." (This statement is in nowise critical of the circuit court. It did and said all it was required to do if it was going to concur with the finding of the Commission.)
The Court of Civil Appeals affirmed the judgment of the circuit court, but we are still unapprised of what or whose political or personal reasons motivated the cancellation of the contract. Owing to our limited review, already noted, we have not read the proceedings before the Board, but we have read the two hundred pages of narrative testimony in petitioner's brief. Even so, we have not referred to that testimony because very little of it is contained in the opinion of the Court of Civil Appeals.
The point we make here is that nowhere in any finding or opinion of the Commission, the circuit court or the Court of Civil Appeals is there any information as to what the political or personal reasons were that caused the action of the Board to be overturned. Since the appellate review of action taken by the Commission is by mandamus to the circuit court, § 361, and certiorari to this court (Act No. 987, cited supra), it is imperative that some specificity be given by the Commission to support its reversal of the findings of the only trier of facts, the Board of Education. "Personal or political reasons" is too general and too indefinite and it does not give the courts sufficient information to decide the case on its merits. We know there were three volumes of testimony taken, but nowhere are we presented with any evidence in all that testimony that the cancellation of Baugh's contract was due to any specific political or personal reason. Whatever the political or personal reasons were, or who held them, should have been stated so that all school boards could learn what political or personal activity is not allowed and to keep it from happening again.
Another matter merits attention. We have held that the purpose of the teacher tenure law is to insure teachers, as there defined, some measure of security *137 and to secure permanency in the teaching force; and are to be read into all contracts entered into between school boards and teachers. Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So. 2d 233, and cases there cited. The underlying purpose of providing this security and permanency is the welfare of the pupils, and the public interest in having competent personnel in education.
The highest interest of the public in education is that the pupils have competent teachers and administrators. Here, Baugh was charged with incompetency and much evidence was taken on that charge. We cannot understand why the Commission did not pass on his competency. If a teacher is incompetent, he should be removed. Not many tenured teachers become incompetent, but a few do. Surely, the welfare of the pupils and the public interest should outweigh political or personal reasons if, in fact, the teacher is incompetent.
We are not to be understood as holding or intimating that Baugh is incompetent. But the Board, following a full hearing, found that he was. The same law which names incompetency as a ground for cancellation of a contract allows an appeal to the Commission. We do not think that the Legislature intended that the Commission should exercise its veto power over the Board's action without giving a more specific reason than the words of the statute, i. e., "the action of the Board was arbitrarily unjust" or "the transfer or cancellation was the result of political or personal reasons," especially when the charge of incompetency was sustained by the Board.
The Commission should, when reversing a decision of the Board which follows the statute, state sufficient reasons it has found from the evidence to justify its action so that on final review by this court, which does not have access to all the evidence, can still pass upon the question of whether the Commission's action is unjust, Tit. 52, § 361.
If the Commission approves the finding of the Board, a sufficient reason would be that the evidence sustains the action of the board of education and it is not arbitrarily unjust. There is no reason to readvertise the deficiencies of the teacher if he is to be discharged, but we must insist on some reasonable statement based on the evidence of reasons for the overturning of the action of the Board. And where the charge of incompetency is sustained by the Board, a positive finding, one way or the other, on that charge and the reasons why, should always be made.
It follows that the judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court with directions to reverse the judgment of the circuit court and remand the cause to the circuit court to direct that court to remand the cause to the Tenure Commission with directions to make definite findings with reasons on the charges of incompetency and insubordination, and if the Commission determines that the cancellation of the contract was for political and personal reasons, then whose and what political reasons and whose and what personal reasons.
Reversed and remanded with directions.
COLEMAN, HARWOOD, BLOODWORTH, McCALL and FAULKNER, JJ., concur.
HEFLIN, C. J., concurs in the result.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur that the judgment of the Court of Civil Appeals must be reversed because the order of the State Tenure Commission is ambiguous. If I could read the order of the Tenure Commission as stating that the sole reason for Arthur Baugh's dismissal was because of "political" or "personal" *138 reasons then I would affirm its actions as did the Circuit Court and the Court of Civil Appeals.
From a reading of the order of the Tenure Commission, however, I cannot say whether the Commission determined that Baugh was guilty of the charges of incompetency and insubordination. The Commission should clear up this ambiguity.
I do not personally think that the Commission needs to specify in great detail why it makes a particular determination and, in this, my views are at some variance with the majority, but I do agree that the determination here is insufficient.
Although I concur that the cause must be sent back, I find myself in disagreement with some of the views expressed in the majority opinion on the scope of review of the State Tenure Commission.
The majority says that the Tenure Commission does not have a broader scope of review than is ordinarily permitted to courts reviewing decisions of administrative agencies. I believe the Legislature intended otherwise.
In State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So. 2d 823 (1968), this Court commented specifically on the legislative intent in establishing the State Tenure Commission as follows:
While the matter is pending before the Tenure Commission it is still in the administrative process.
The proceedings upon the review of an administrative determination by a superior administrative tribunal naturally depends upon the statutory grant of authority. Although administrative review is in some respects analogous to an appeal in the judicial process, I believe that there are basic and fundamental distinctions between the process of internal review administratively and that of appellate review judicially. See 2 Am.Jur.2d, Administrative Law, § 546, p. 354. Consequently, I believe the Alabama Legislature gave the Tenure Commission the right to review the entire record before the board without indulging in any presumptions of the correctness of the findings and conclusions made by the board and to arrive at contrary conclusions on the same facts, if the commission is convinced from the record that the board was "arbitrarily unjust" or its action was based on "political or personal reasons." When the majority defines the scope of review as being limited to the record before the board, that is correct. The Commission cannot try the matter de novo. However, *139 I believe the Legislature intended that the Tenure Commission could re-examine the facts which were before the board and arrive at a different conclusion.
There is another reason why I think the Legislature intended that the Tenure Commission should have a somewhat broader scope of review. As this Court said in State Tenure Commission v. Madison County Board of Education, supra, the Tenure Commission was set up as an independent appellate forum. By providing for an independent examination of the facts, even though the hearing is not de novo, the Legislature, I believe, intended to accord an aggrieved teacher a forum where the teacher could plead his case anew, albeit on the same evidence. The scope of review, I propose, would seem to be fairer to the teacher, who for the first time is appearing before an independent forum.
To read the statute as I propose would seem to help remove a possible objection that some teacher might raise that the school board acts as both the prosecutor and the judge, a procedure which has been criticized. See 1 Am.Jur.2d, Administrative Law, § 78, p. 873. I make no determination here whether present statutory procedures, as they have been construed by the majority, accord procedural due process. I do call the attention of the Legislature to the fact that the Supreme Court of the United States has held that when the rights of public employees are involved, state and federal governments, even in their internal operations, do not constitutionally have the complete freedom of action enjoyed by the private employer. See Cafeteria Workers, Local 473 v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). I merely point out the trend. I do not adopt it or reject it.
I recognize that the state has a very valid and substantial interest to protect also. The school board has the responsibility to manage the school system. It has a legitimate interest in the education of the young people in its charge. I think the Legislature recognizes this interest by providing a method by which the school board could rid itself of incompetent personnel. But I believe the Legislature intended to give the Tenure Commission a rather broad scope of review to make sure the board was not arbitrarily unjust in its decision to remove a teacher. | February 8, 1973 |
56f1254e-8dfe-4a21-9bb4-735171235c82 | Cloud v. Moon | 273 So. 2d 196 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 196 (1973)
W. T. CLOUD, Ind. etc.
v.
Walter Vernon MOON.
SC 52.
Supreme Court of Alabama.
February 1, 1973.
*197 Inzer, Suttle, Inzer & Pruett, Gadsden, for appellant.
Burns, Carr & Shumaker, Gadsden, for appellee.
MERRILL, Justice.
This is an appeal from a judgment for the plaintiff-appellee in the amount of $20,785.00 against the defendant-appellant on a two-count complaint. A motion for a new trial was overruled.
The facts are essentially without dispute. At the time of the fire, appellee was a self-employed automobile mechanic with nearly twenty years experience. His shop was adjacent to his residence and was in a tin building with a floor of part concrete and part dirt. The only wood in the building was the lathing to hold the tin. Appellee's specialty was working on large trucks. He had previously worked for appellant and some months earlier had overhauled the motor on the truck that burned. Appellant was in the timber and pulpwood business and used large trucks to transport pulpwood from the forest to a paper mill.
Appellant contracted with appellee for appellee to overhaul the engine in one of appellant's trucks, a red International R-190. The truck was eleven years old and had been purchased second hand by appellant about a year before it burned. On the morning of March 14, 1969, appellee and his father took possession of the truck at appellant's place of business in Attalla. Appellee's father drove the truck to his son's garage about fifteen miles away, and appellee then took off the hood and fenders *198 and removed the engine. In the process of removing the engine, appellee disconnected the battery cable at the starter relay rather than at the battery post, taped the cable end and disconnected the fuel line from the fuel pump. The following morning, March 15, the engine was taken to Gadsden to have some machine shop work done on it and the engineless truck was left in the garage. Appellee testified that between 9:00 and 10:00 on the evening of March 15, he heard an explosion and discovered his garage on fire. The truck was destroyed by the fire as were several items of tools and equipment belonging to appellee.
Assignments of error 26-38 charge error in that the court permitted appellee to cross-examine his own witness, to impeach him as to alleged contradictory unsworn statements, and assignments 39 and 40 charge error in the admission of an alleged statement of the witness into evidence over strenuous objections.
The appellee had taken the deposition of the witness, Gordon Martin, on December 2, 1969, and later introduced it on the first trial of this case which began on September 30, 1970. The deposition was taken before the court reporter under Act No. 375, Acts of Alabama 1955, p. 901, listed in the 1958 Recompilation as Tit. 7, § 474(1) et seq. Appellee's counsel, Mr. Carr, was present as were Messrs. Suttle and Pruett, representing appellant. In that deposition, Martin testified that an International truck which he was driving caught on fire as a result of having been "cross-wired," but the same type International truck which burned in appellee's garage was not the same truck which had previously caught fire; that he had done repairs on both trucks and that the only electrical work that had been done on the truck that burned in Moon's garage was repairing a starter solenoid that had burned out and repairing the "flashing lights."
Prior to the taking of the deposition, Mr. Carr, of counsel for appellee, had taken a statement signed by the witness Martin in counsel's office on April 1, 1969, some two weeks after the fire at appellee's garage and long before the taking of the deposition.
On the second trial, which is the subject of this appeal, appellee called Martin as his witness and notified the court that he wished to cross-examine Martin as a witness. Many objections were overruled and finally the trial court allowed appellee's counsel to cross-examine his own witness. The record shows.
And after some discussion:
The trial court may, in its sound discretion, allow a party to ask leading questions when the witness, called by that party, is hostile to the party's cause. Louisville & N.R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203, cert. denied 308 U.S. 603, 60 S. Ct. 140, 84 L. Ed. 504; Winchester v. State, 20 Ala.App. 243, 102 So. 535; Tit. 7, § 444, Code 1940. But we have not been cited to any case which permits a party to call a witness and immediately cross-examine him on the theory that he is a hostile witness.
There must be an avowed surprise before one's own witness may be subjected to cross-examination by the party calling him. Campbell v. Davis, 274 Ala. 555, 150 So. 2d 187; Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867. Here, appellee could not have been surprised. The witness had been offered by the appellee at the first trial. A member of the firm employed *199 by appellee participated in the taking of the deposition at that time, appellee's counsel had a written statement signed by the witness which had been signed in the presence of appellee and Mr. Burns, the senior member of the firm representing appellee.
In his deposition, the witness testified that the International truck which he drove and which had caught fire because it was "cross-wired," was not the truck which burned at appellee's garage. The witness was not examined at that time as to the statement which counsel had previously secured from the witness. Under these conditions, there could not have been surprise to appellee or his counsel as to what the witness had previously sworn. They could reasonably take the position that he was hostile, but not that his hostility was a surprise. They did not claim surprise.
In Louisville & N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572, this court said:
On the same point, in Foremost Dairies, Inc. v. Cutler, Fla.App., 212 So. 2d 37, it was said:
Finally, whether or not the testimony of the witness Martin was admissible, it could not be the basis of establishing liability of the defendant. McElroy, Law of Evidence in Alabama, 2nd Ed., Vol. 1, states in § 159.02(1):
Another statement of this principle is found in 58 Am.Jur., Witnesses, § 799, p. 445:
In Lewis v. State, 44 Ala.App. 319, 208 So. 2d 228, it was said:
In Eisenberg v. United States, (5th Cir.), 273 F.2d 127, it was said:
Also in Eisenberg, supra, the following appears: "`[The document used to refresh recollection] does not itself go before the jury, unless the other side puts it in.' Portman v. American Home Products Corp., 2 Cir., 1953, 201 F.2d 847, 850.
"In no case do we find that a statement used by a party to refresh the recollection of his witness is admissible by that party. * * *"
It follows that the trial court erred in permitting the plaintiff to cross-examine his own witness, and also in admitting the written statement of the witness into evidence.
Count A alleged that appellee was engaged in the business of making mechanical repairs on trucks and that appellant contracted with him to make certain repairs on the engine of one of his trucks; that at the time appellant delivered possession of the truck to appellee, appellant knew that the truck was in a dangerous condition, likely to burn or explode at any time, and that he negligently delivered possession to appellee without warning him of its dangerous condition; and that on March 15, 1969, the truck caught fire and exploded and destroyed appellee's garage, equipment, tools, etc. Count B is substantially the same as Count A. The pleas were in short by consent.
The issues formed by the pleadings imposed upon appellee the burden of proving, (1) that the truck was in such a dangerous condition when it was turned over to appellee that it was likely to burn or explode; (2) that the dangerous condition was known to appellant and unknown to appellee when the truck was delivered to appellee; (3) that appellant negligently failed to warn appellee of this known dangerous condition; and (4) that the damages claimed proximately resulted from the failure of appellant to warn appellee of the known dangerous condition.
This case is one of first impression in this court. It differs from Penton v. Favors, *201 262 Ala. 262, 78 So. 2d 278, in that there the bailor loaned bailee an automobile to use temporarily, while here the bailor, a non-expert owner, put the truck in the hands of an expert bailee for the overhaul of the truck engine.
The rule in cases like the one before us has been established in many jurisdictions. In 14 Blashfield Automobile Law and Practice, 476.41, p. 460, we read:
Blashfield cites Rice v. Allen, Mo., 309 S.W.2d 629; Stroud v. Southern Oil Transp. Co., 215 N.C. 726, 3 S.E.2d 297; Brown v. Hudson, 50 Tenn.App. 658, 363 S.W.2d 505; Cornett v. Hardy, Tex.Civ.App., 241 S.W.2d 186; Liberski v. Jonas, 18 Wis.2d 127, 118 N.W.2d 192; Anderson v. London Guarantee & Acc. Co., La.App., 36 So. 2d 741; Knowles v. Jenney, 157 Me. 392, 173 A.2d 347; Varas v. James Stewart & Co., 223 Mo.App. 385, 17 S.W.2d 651. See also 61A C.J.S. Motor Vehicles § 741, p. 689, citing Jones v. Bush, 202 Va. 752, 120 S.E.2d 382.
In Varas v. James Stewart & Co., 223 Mo.App. 385, 17 S.W.2d 651, the court said:
Assignments of error 3 through 11 charge that the court erred in refusing to give the affirmative charge, with or without hypothesis as to both counts and as to each count separately.
We start with the rule that in civil cases, the question must go to the jury if the evidence furnishes a scintilla in support of the theory; and in considering the propriety of the affirmative charge, we review the tendencies of the evidence most favorable to the plaintiff, regardless of any view we may have as to the weight of the evidence; and we must allow such reasonable inferences as the jury were free to draw, not inferences which we think the more probable. Orange v. Shannon, 284 Ala. 202, 224 So. 2d 236; Alabama Power Co. v. Guy, 281 Ala. 583, 206 So. 2d 594. So we look for evidence in the record to support the four allegations which we have stated the appellee must prove in order to be successful.
The undisputed evidence was that the solenoid switch was removed when the appellee removed the engine from the truck; that the driver who had driven the truck six days a week for six or seven months just preceding the fire had never had any trouble with the starter, the lights or the battery during that time; that the only trouble was that the engine began using oil and he recommended that the engine be overhauled. The appellee testified that he had once repaired a battery cable on the truck by taping it up; that when he removed the engine the day of the fire he disconnected the fuel line and left it hanging without taping or plugging it; and that he started to disconnect the cables from the battery posts but did not because two battery posts were loose. Whether or not appellant had had any labor problems is not relevant in this case. The only duty owed by appellant was to warn of any known dangerous condition pertaining to the truck. Labor problems are not mechanical components of the truck.
Thus, it appears from the undisputed evidence that for the five months next preceding the fire, the truck was not in a dangerous condition and that no dangerous condition was known to the appellant for him to report to appellee.
Two other matters require mention. One was that there was evidence that one of the caps on one of the gasoline tanks had a wooden plug wrapped with a rag in the vent in the cap. This may or may not have been safe, but if the expert appellee knew of the condition before he took possession of the truck, there was no duty to tell him of the rag-wrapped wooden peg. The record shows the following questions and answers while appellee was testifying:
The other matter is that appellee's expert testified that in his opinion the cause of the fire was "either the battery or the battery cable." There was no evidence that the electrical system was dangerous or unsafe after the last repairs had been made on the truck.
In McClinton v. McClinton, 258 Ala. 542, 63 So. 2d 594, damages were sought for the destruction by fire of a garage apartment building which it is alleged originated in an automobile parked in the garage portion of the building. There was considerable evidence in that case that the ignition system and the electrical wiring in the car had given trouble. The lights had gone out from time to time and the dimmer switch did not work at times. The evidence was undisputed that all the defects had been repaired about a week before the fire.
There, the repairs had been made about a week before the fire; here, they had been made more than five months before the fire. The court held that the defendant was entitled to the "general affirmative charge" and quoted the following from earlier cases:
In Viking Motor Lodge, Inc. v. American Tobacco Co., 286 Ala. 112, 237 So. 2d 632, it was said:
We hold that appellant was entitled to the affirmative charge without hypothesis because the complaint was not supported by any legal evidence that the truck was in such a dangerous condition that it was likely to burn or explode when turned over to appellee; and that appellant knew of any dangerous condition; and that appellant negligently failed to warn appellee of a known dangerous condition, or that the damages claimed by appellee proximately resulted from the failure of the appellant to warn appellee of the known dangerous condition of the truck.
For the errors noted, the judgment is reversed and the cause is remanded.
Reversed and remanded.
HEFLIN, C.J., and HARWOOD, MADDOX and McCALL, JJ., concur. | February 1, 1973 |
d5eeb22e-ee54-40a7-a21b-e453a928da66 | Miles v. Bank of Heflin | 328 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 328 So. 2d 281 (1975)
M. M. MILES
v.
BANK OF HEFLIN.
SC 1315.
Supreme Court of Alabama.
December 18, 1975.
Rehearing Denied March 5, 1976.
*282 Rives, Peterson, Pettus, Conway & Burge, Birmingham, and James D. Pruett, Gadsden, Rutledge & Pruett, Birmingham, for appellant.
Steiner, Crum & Baker, Montgomery, and John S. Casey, Heflin, for appellee.
JONES, Justice.
This is an appeal from a summary judgment denying M. M. Miles and other stockholders of the Bank of Heflin the 10% penalty provided under Tit. 10, § 21(46) for the refusal of the Bank of Heflin to allow them to inspect its corporate records. We reverse and remand.
The stockholders requested permission for their accountants to examine the books and records of the Bank of Heflin pursuant to Tit. 10, § 21(46). The Bank told them that certain limitations would be placed upon their access to the Bank's records. Among the things the Bank wanted to prevent the stockholders from inspecting were financial statements of borrowers, reports of examinations of the Bank by federal and state regulatory authorities, and information which would disclose the salaries paid to individual employees of the Bank. To limit the scope of inspection, *283 the Bank filed a declaratory judgment action. The stockholders filed a counterclaim for the statutory 10% penalty. Both parties filed motions for summary judgment upon affidavits and depositions.
The trial Court agreed with the Bank that the inspection should be limited and appointed a Master to determine the scope of permissible inspection. The Court then granted the Bank's motion for summary judgment against the stockholders' counterclaim for the penalty. The stockholders brought mandamus to enforce their right to full inspection of the records and filed an appeal to review the summary judgment denying the penalty. A writ of mandamus requiring the trial Court to order the Bank to permit full inspection was granted on August 21, 1975, in Ex parte Miles, 294 Ala. 462, 318 So. 2d 697 (1975). The case now before us is the appeal from the summary judgment on the penalty. The Bank has filed a motion to dismiss the appeal.
There are two issues for review. First, whether the Bank's motion to dismiss the stockholders' appeal is due to be granted. Second, if the appeal is not dismissed, whether the trial Judge erred in granting a summary judgment against the stockholders' counterclaim for the statutory penalty.
The Bank contends that the stockholders are attempting to appeal from an incomplete adjudication of the case below. It contends that ARCP 54(b) prevents the appeal because, when the stockholders appealed, the trial Judge had entered a judgment only upon the counterclaim for the penalty, and the trial Judge had not made "an express determination that there is no just reason for delay and an express direction for the entry of judgment." ARCP 54(b).
This Court, in Cates v. Bush, 293 Ala. 535, 307 So. 2d 6 (1975), discusses the effect of Rule 54(b) and is relationship to Alabama's prior statutory provisions for appeal and holds that Rule 54(b) neither superseded, nullified, nor modified Tit. 7, § 754, Code, relating to the finality of judgments. Cates further observes, "Title 7, Section 754, provides that, except in unusual circumstances, appeal must be only from a final judgment. Rule 54(b) merely sets out one instance where a judgment may now be made final although it would not have been final prior to the adoption of the new rules." Therefore, to determine whether the stockholders' appeal should be dismissed, we must not confine our inquiry to the language of Rule 54(b), but we must look to all applicable Alabama law.
Our inquiry must begin with a review of the procedural posture of this case at the time of the stockholders' appeal. The order of the trial Judge, the subject of this appeal, primarily did two things. First, it denied the stockholders' demand for unlimited inspection and appointed a "Special Master" to inspect the Bank's records to determine which records the stockholders should be allowed to inspect. Second, it granted the Bank's motion for summary judgment on the counterclaim for the statutory penalty.
The stockholders brought mandamus to compel full inspection and brought appeal to revise the order denying the statutory penalty. A writ of mandamus was granted in Exparte Miles, supra. The rationale for granting mandamus in that case was that the stockholders were being denied "a clear legal right, the allowance of which is a matter of peremptory duty, and not of judicial discretion," citing Exparte Watters, 180 Ala. 523, 61 So. 904 (1913), and Exparte Weissinger, 247 Ala. 113, 22 So. 2d 510 (1945).[1]
*284 Granting mandamus, says the Bank, on the issue of inspection operates to preclude the instant appeal under Rule 54(b). The Bank contends, by granting mandamus, this Court acknowledged that the entire case had not been fully adjudicated below; therefore, the appeal on the penalty is an appeal from a nonfinal judgment; and, without the express direction for entry of judgment under Rule 54(b), it is due to be dismissed. We disagree.
Our holding that mandamus was proper in Ex parte Miles, supra, did not necessarily mean that appeal was not also available. It only meant that appeal was not adequate because of the exigencies of the situation and because of the peremptory, nondiscretionary duty violated by the trial Judge. To determine whether appeal is proper in the instant case, it is necessary to determine whether the trial Judge's order, in all its component parts, was appealable when he entered it. If it were appealable at that time, then the "express determination" and "express direction" requirements of Rule 54(b) are unnecessary. Cates v. Bush, supra.
We hold that the trial Judge's order appointing a Master to determine which records the stockholders could properly inspect is a final judgment for purposes of appeal; therefore, the summary judgment on the penalty is not a partial judgment and it is appealable without a Rule 54(b) determination and direction.
A large body of case law has developed around the problem of when an order which refers part of a case to a register or master is a final judgment. Chadwick v. Town of Hammondville, 270 Ala. 618, 120 So. 2d 899 (1960). The first Alabama cases on the problem are now over 130 years old and their rules have been followed consistently. The earliest statement is "that a decree `is final when it ascertains all the rights of the parties in litigation,' although there may be a reference to the master to ascertain facts for an account between the parties." Bank of Mobile v. Hall, 6 Ala. 141 (1844), and Weatherford v. James, 2 Ala. 170 (1841).
The rule arose in equity jurisprudence because old Equity Rules 79 through 88 were the only effective vehicle for appointing masters prior to the adoption of the Alabama Rules of Civil Procedure. As the equity rule developed, it was broadened to apply to various equity situations. The most common statement is, "The test of the finality of a decree sufficient to support an appeal is that it ascertains and declares the rights of the parties and settles the equities, and is not controlled by the fact that the cause remains in fieri in respect to other matters." McCulloch v. Roberts, 290 Ala. 303, 276 So. 2d 425 (1973); Moorer v. Chastang, 247 Ala. 676, 26 So. 2d 75 (1946); Carter v. Mitchell, 225 Ala. 287, 142 So. 514 (1932).
ARCP 53 has now superseded old Equity Rules 79 through 88, and ARCP 2 has merged the procedural distinction between law and equity into one form of action the "civil action". Rule 53 provides for reference to a master in any civil action in which the presiding judge finds it necessary. It is now incumbent upon this Court to determine whether the equity case law allowing appeal after a reference to master should be extended to the Rule 53 situation. The rationale for the equity rule was articulated in one of the early cases. That rationale is: If the chancellor has erroneously ascertained the merits of the case, the delay, expense, and trouble attending the ascertainment of facts and preparation of a report by the master are unnecessary and profitless. Bank of Mobile v. Hall, supra.
We find that the policy articulated by this Court in Bank of Mobile case is as applicable today as it was in 1844. Rule 53(a) provides that "the compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties ... as the court may direct." In the instant case, the Court ordered the Bank of Heflin, Miles, and the
*285 Woods to pay $400 each to defray expenses of the Master. If it is determined that the trial Judge adjudicated all of the merits of the case, and the stockholders were going to appeal regardless of the content of the Master's report, it would be "unnecessary and profitless" for them to await the Master's report before appealing. This is the same situation this Court faced when appeals were brought from equity trials after reference to a master and the same rule must apply here.
We now address the question of whether the instant case falls within the scope of the rule allowing appeal from orders which include references to masters. The purpose of this inquiry, it must be remembered, is not to determine the propriety of our granting mandamus in Ex parte Miles, supra, but rather, it is to determine whether the trial Judge's order constituted a final judgment in all of the claims, thereby taking this case beyond the scope of Rule 54(b). The mere fact that the Court has ordered a reference to a Master is not, of itself, sufficient to make out a final judgment for purposes of appeal. It is also necessary that the trial Judge has decided "the substantial merits of the controversythe material issues of fact and law litigated or necessarily involved in the cause, which determine the legal rights of the parties, and the principles by which such rights are to be worked out." Adams v. Sayre, 76 Ala. 509 (1884).
In the instant case, we can determine what material issues of fact and law are involved in the controversy from the pleadings of the parties. The Bank's complaint prayed that the Court set forth in detail the books, records of account, memoranda, and other information that the stockholders were entitled to see, but that it deny the stockholders access to confidential information and information held by the Bank in its fiduciary relationship with its customers. The stockholders' answer denied that the Bank had a right to withhold any records from stockholder inspection based on its claim of confidential relationship and prayed that the Court direct the Bank to immediately make available all of its books and records of account for their examination.
After making these findings, the Court referred the matter to a Special Master who was directed to return a report specifying which of the Bank's records did not fall within the category of confidential information and were, therefore, available for inspection.
When the Court made its findings and issued its decree in accordance therewith, including reference to the Master, it adjudicated the substantial merits of the controversey. It granted the Bank's request to limit the inspection and denied the stockholders' demand for complete inspection. All that remained was for a Master to determine exactly which of the Bank's records fell within the prohibited category. Regardless of what the Master reported, he could not have broadened, or otherwise enlarged upon, the limited right of inspection as decreed by the Court. Thus, the stockholders lost their case on the merits and their right of appeal necessarily accrued at that time. Indeed, had the stockholders awaited the Master's report, they would have risked the running of the statutory period for appeal. O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502 (1933).
*286 This situation falls exactly within the policy behind allowing appeals, under certain circumstances, from reference to masters. We find that it would have been "unnecessary and profitless" for the stockholders to have awaited the Master's report to appeal; and we hold that, under the adjudication of substantial merits rule set out in McCulloch, the order appointing the Master was final and would have supported an appeal. Therefore, the stockholders' appeal from the summary judgment entered against their counterclaim for the statutory penalty is not an appeal from a nonfinal judgment and it is not due to be dismissed. Motion to dismiss the appeal is denied.
The trial Judge granted the summary judgment and dismissed the stockholders' counterclaim because he found that "the filing of the declaratory judgment action does not constitute a refusal or denial of the records." Our review of the trial Court's order granting a motion for summary judgment requires us to address two issues.
First, whether the trial Judge's decision is legally correct. Second, whether affidavits and depositions of the parties show there was no genuine issue of material fact as required by Rule 56(c).
On the first issue, we must decide whether a declaratory judgment filed by a corporation to limit stockholders' inspection of corporate records is a "refusal" of the stockholders' demand as a matter of law. The purpose of the statutory penalty is to make corporate records more accessible to stockholders. If there were no penalty, the usual course for a stockholder seeking inspection would be to file suit to enforce his right. The expense of such litigation would discourage many stockholders from pursuing their rights. The penalty forces a corporation to assume financial responsibility for its refusal.
If we were to hold that filing of declaratory judgment action was not a refusal as a matter of law, then the Board of Directors can easily circumvent the penalty provision while still putting the stockholders to the expense of litigation to enforce their inspection rights. By rendering the penalty provision, inoperative, declaratory judgment actions would shield the Board from the demands of those stockholders who cannot afford to pursue litigation.
Therefore, we cannot agree that filing a declaratory judgment action is not a refusal to allow inspection. The fact that the Board of Directors, rather than the stockholders, has instituted the litigation cannot exonerate the Board of its duty to allow inspection. We therefore hold that when the Board forced the stockholders to litigate in order to pursue their rights, it effectively refused to allow inspection.
The remaining issue for liability under the penalty statute is whether the Bank's refusal to allow full inspection of its books and records was "without reasonable cause." Tit. 10, § 21 (46). Ordinarily, this question of reasonable cause is a disputed factual issue to be determined with reference to the facts and circumstances in each case.[2] As the Committe Comments to Rule 56 state: "The summary judgment procedure is not a substitute for the trial of disputed issues of fact. On a motion for summary judgment, the court cannot try issues of fact." 10 Wright and Miller, Federal Practice and Procedure, § 2712.
The posture of the record in the instant case, however, reveals an out of the ordinary situation. Following responsive *287 pleadings, including counterclaims for the statutory penalty, filed by the stockholders to the Bank's Bill for Declaratory Judgment, each of the parties, with supportive affidavits and depositions, moved the Court for summary judgment. Understandably, when the trial Court denied the stockholders the right of full inspection, it likewise denied their motions for summary judgment and, consistent therewith, granted the Bank's motion for summary judgment. This had the effect of dismissing the stockholders' counterclaims.
Unquestionably, had the trial Court denied the Bank's sought for relief limiting the stockholders' right of full inspection, it likewise would have denied the Bank's motion for summary judgment. Ex parte Miles, supra, revised the trial Court's order denying full inspection on the basis of the clear and nondiscretionary mandate of the statute. Moreover, the right of a stockholder, within reasonable limits and for proper purposes, to inspect the books and records of the corporation in which he owns an interest, absent a contract to the contrary, is hardly dependent upon legislative expression. Indeed, any effort to statutorily limit such right by arbitrarily excluding certain books and records from the scope of full inspection would raise serious constitutional questions.
Given the revision of the trial Court's order denying full inspection affected by Ex parte Miles, and given our conclusion that in the context here presented the Bank's filing of a declaratory judgment action was an effective denial of the stockholders' request for such inspection, we necessarily must reverse the order below granting the Bank's motion for summary judgment and dismissing the stockholders' counterclaims. This is not to say that the Bank's mere filing of a declaratory judgment action in itself is an effective denial of the right of inspection. Rather, we say that the basis for the denial was the defense of confidentiality and upon that basis there was an effective denial of the right of inspection resulting in the right to recover the statutory penalty under Tit. 10, § 21(46).
The only basis for the Bank's refusal is summed up in its President's deposition when he states that the Bank's confidential relationship with its customers made a declaratory judgment action reasonable, and thus its refusal was with reasonable cause. Since this constitutes a legal contention merely, which has been rejected by Ex parte Miles and the instant appeal, the trial Court is directed on remand to grant the stockholders' motions for summary judgment and assess against the Bank in favor of each stockholder respondent a penalty equal to 10% of the value of the stock owned by each respective stockholder.
Reversed and remanded with instructions.
MERRILL, BLOODWORTH, MADDOX, FAULKNER, ALMON and EMBRY, JJ., concur.
SHORES, J., concurs specially.
HEFLIN, C. J., not sitting.
SHORES, Justice (concurring specially):
I agree with the result and agree that Rule 54(b), ARCP, has no application since, in my view, the order entered by the trial court, granting the bank's motion for summary judgment and limiting the appellants' right to full inspection, was a judgment which was final and therefore appealable.
As to these appellants, stockholders, the ruling of the trial court could not have been more adverse, nor final. The ruling denied every aspect of relief which they sought without reservation. It was their contention that they were entitled to full inspection of the records of the bank. The appointment of a master to select what parts of those records could be inspected *288 was, as far as the stockholders were concerned, a denial of their claim of right to inspect all of the records. Regardless of what the master produced, it would necessarily be less than they sought to inspect. Therefore, I think appeal was proper and that the method of review should have been utilized to test the propriety of the trial court's refusal to permit full inspection of the records. The fact that the court has granted a petition for writ of mandamus, as to the right to inspect, does not destroy the finality of the judgment entered and appealed from here, but candor requires us to admit that piecemeal review has been the result.
This Court notes that the Bank has retained new counsel who has filed an extensive brief in support of its application for rehearing. For that reason, we feel constrained to file an extended written opinion, addressing the important points raised in the application.
The arguments urging our modification of the original opinion fall into three categories:
We will address each of these arguments separately.
First, the record sets out the stockholders' motion for summary judgment on their counterclaim for the penalty. The motion is accompanied by affidavits which include the stockholders' letters to the Bank demanding inspection of books and records and the depositions of the Bank's stockholders, president, attorney, and public relations officer. The trial Judge's order is prefaced with the following statement: "This is a declaratory judgment and is submitted on motions by the respective parties for a summary judgment on the pleadings, affidavits and depositions on file in this case." There is no order in the record striking the stockholders' motion for summary judgment and whether the trial Judge, in fact, did consider the motion is not material to this Court's review of the trial Court's propriety in not granting it.
Where the parties have moved for summary judgment under Rule 56 and submitted supporting affidavits, which establish that there is no genuine issue of material fact, appellate courts are authorized to remand the case with instructions for entry of summary judgment. Sayre v. City of Cleveland, 493 F.2d 64 (6th Cir. 1974). We therefore find no merit in the Bank's first argument.
The Bank's second argument is that determinations of "proper purpose" and "reasonable cause" were genuine issues of material fact. Smith v. Flynn, 275 Ala. 392, 155 So. 2d 497 (1963), explains that the burden is on a corporation to prove improper purpose; therefore, if the corporation does not question the stockholders' purposes, there is no issue for trial. The stockholders' demand for inspection alleged proper purposes such as inquiries into: misuse of corporate funds, the abuse of *289 corporate office, the diversion of corporate assets to the personal benefit of any officer, director, employee or stockholder, and the favoring of certain customers of the Bank because of their personal connections with the officers or directors. The depositions of the stockholders which accompanied their motion for summary judgment set forth specific occurrences which made them suspect corporate mismanagement. Two examples of the suspected mismanagement were the Bank's purchasing land from a board member at more than its market value and the Bank's making a substantial loan to a board member who could offer only a second mortgage as security.
The Bank offered no affidavits to establish improper purpose. Rule 56(e), in pertinent part, provides:
The last sentence of 56(e) has been interpreted to mean that even if the adverse party files no affidavits opposing the motion, a summary judgment can be entered against him only if "appropriate." Dawkins v. Green, 412 F.2d 644 (5th Cir. 1969). We hold that this is an appropriate case for the entry of summary judgment for two reasons. First, the president of the Bank on direct examination by the stockholders' attorney admitted that he had no reason to believe that Mr. Miles had some purpose for asking to see the records other than to determine the way the bank had been operated. Second, the burden is on the corporation to prove that the stockholders' demand is not for a proper purpose. Smith v. Flynn, supra. Therefore, if the Bank offers no evidence of improper purpose and in fact admits through its president that there is no reason to suspect improper purpose, the question of purpose is not an issue for trial.
On the "reasonable cause" issue, again, the burden rests with the corporation. The trial Judge found that the peculiar fiduciary relationship between a Bank and its customers created a reasonable cause for the Bank's refusal to permit inspection. This Court, however, reversed that finding in Ex parte Miles, 294 Ala. 462, 318 So. 2d 697 (1975), holding that the inspection rights of stockholders of a bank are the same as stockholders of a corporation generally. Thus, Ex parte Miles finally resolved the question of "reasonable cause", and that issue is not before the trial Court on remand. Since all of the triable issues issues of law, not of factare resolved in this Court, the only proceeding remaining for the trial Court is to grant a summary judgment in favor of the stockholders. Millworth Converting Corp. v. Slifka, 188 F. Supp. 629 (S.D.N.Y.1960).
As to the propriety of our instructions to grant a summary judgment, the Bank argues that the issue of the trial Judge's denial was not before this Court on appeal because it was not assigned as error. Our instruction, however, is not grounded upon a reversal of the trial Judge's erroneous denial of the stockholders' motion for summary judgment. Rather, our instruction is an acknowledgement that the trial Judge correctly found that there were no triable issues. Our authority for the instruction is not the rules of appellate procedure, as the Bank assumes, but rather the mandate of Rule 1 of ARCP. Rule 1 requires that the rules "shall be construed to secure the just, speedy and inexpensive determination of every action." Since the material issues of this case have been disposed of by the affidavits of the parties, by Ex parte Miles, and by our original opinion, a trial is unnecessary.
*290 This situation falls squarely within the purpose of Rule 56 to "improve the machinery of justice, promote the expeditious disposition of cases, and avoid unnecessary trials where no genuine issues of fact are raised." 10 Wright and Miller, Federal Practice and Procedure, § 2712 (1973). Where there are no triable issues of fact, as here found by the trial Court and with which finding we agree, and the legal issue presented has been resolved against the Bank, our mandate on reversal for the entering of a summary judgment in favor of the stockholders necessarily follows.
Finally, the Bank takes issue with the latter portion of the last sentence of our original opinion: ". . . and assess against the Bank in favor of each stockholder respondent a penalty equal to 10% of the value of the stock owned by each respective stockholder." Of the three points raised, the first two were treated, at least to some degree, in the original opinion. While, in deference to counsel's earnest insistance, we have not considered the first two points lightly, it is this 10% penalty issuetreated only summarily in the original opinionto which we have devoted the most time and effort in our consideration of this cause on rehearing.
We find ourselves in substantial agreement with the policy arguments advanced by counsel for the Bank that the penalty should be up to 10% with guidelines for the discretionary fixing of the amount according to the gravity and circumstances of the wrong for which the penalty is imposed. To eliminate all discretion and require the imposition of the penalty by an absolute standard, says counsel for the Bank, treats all refusals to allow inspection of corporate books and records, not sustained on "improper purpose" grounds, as equal in degree and severity. It would further encourage refusal to a relatively small stockholder as opposed to the request of a large stockholder where the risk of refusal would prohibit a contest even in legitimate "improper purpose" cases. Our prerogatives on appellate review, however, do not extend to policy making but rather to judicially interpreting the legislative policy.
The primary authority cited by the Bank in support of its proposition that the penalty statute should be interpreted as a maximum rather than an absolute standard is the case of McCormick v. Statler Hotels Delaware Corporation, 55 Ill.App.2d 21, 203 N.E.2d 697 (1964). In upholding a penalty award of less than 10% under an identical statute, this intermediate appellate court observed:
We cannot accept either basis for interpreting "shall be liable . . . in a penalty of ten per cent . . ."as permitting a discretionary penalty imposition not to exceed 10%. The interchangeability of "may" and "shall" to effect legislative intent is a sound rule; but it can be given a field of operation only where the overall expression of the legislative enactment evidences an intent and purpose contrary to the term employed. See Morgan v. State, 280 Ala. 414, 194 So. 2d 820 (1967). Here, *291 no contrary intent which permits "may" to be substituted for "shall" is manifest.
Perhaps the word "liable" could be interpreted as subject to a fine up to 10% (one of its secondary meanings being "likely to") except that it is preceded by the words "shall be." To be subject to a "likely to" connotation, the sentence would read, "A corporation is liable to a fine of 10%." This interpretation is precluded, however, by the phrase "shall be liable. . . in a penalty of 10%," particularly where this is the only expression of legislative intent and its mandatory imposition is in harmony with the overall spirit of the "right of stockholders to inspect corporate records" statute.
Opinion extended and application for rehearing overruled.
All the Justices concur, except HEFLIN, C. J., not sitting.
[1] Moreover, it has long been recognized that mandamus is the appropriate remedy whenever a board of directors refuses its stockholders the right to inspect corporate records. Alabama Gas Corporation v. Morrow, 265 Ala. 604, 93 So. 2d 515 (1957), and Loveman v. Tutwiler Inv. Co., 240 Ala. 424, 199 So. 854 (1941).
[2] For an in depth discussion of the objective test applicable to the statutory requirements that the examination of the books and records by a stockholder be for a "proper purpose" and that the penalty be imposed for an officer's refusal of such examination "without reasonable cause", see Smith v. Flynn, 275 Ala. 392, 155 So. 2d 497 (1963). | December 18, 1975 |
e0d47931-c826-488e-bb6e-39e804178275 | Camp v. Milam | 277 So. 2d 95 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 95 (1973)
Edwin F. CAMP and Margaret R. Camp
v.
Jay E. MILAM et al.
SC 60.
Supreme Court of Alabama.
January 25, 1973.
Rehearing Denied May 10, 1973.
*96 George S. Brown, Birmingham, for appellants.
Robert E. Parsons, Birmingham, for appellees.
JONES, Justice.
This is an appeal from the Circuit Court of Jefferson County, In Equity, brought by the Complainants and Cross-Respondents (Camps) from an adverse decree wherein the Respondents and Cross-Complainants (Milams) were awarded certain water rights by way of an easement running with the land in an artificial lake located solely on the property of the Camps.
A summary of the facts, as revealed by the record, is as follows:
In 1957 the Camps purchased a tract of land in Jefferson County, Alabama, for $9,000.00. Later the Camps wished to have an artificial lake constructed on the property. Mr. Camp discussed the plan to build a lake with Milam, who was an engineer and in the construction business. Milam offered to construct the dam for the Camps in return for part of the land and the right to use the lake. On October 26, 1959, Camp and Milam signed a written agreement which provided that Milam would construct an earthen dam on the Camp's property in exchange for 40 acres of the land, the description of which to be mutually agreed upon at a later date. The said agreement also contained the provision that "free access to the entire lake will be available to both parties, herein".
The dam was completed sometime in 1960 or 1961, and the Milams began to use the lake from time to time for recreational purposes. In 1965 the Milams decided to build a home at the lake and asked the Camps to convey the land as provided in the written agreement of October 26, 1959. The Camps did convey, at the Milams' request, a tract of about 25 acres in June, 1965, to A. C. Barrett & Associates, Inc. (Associates), a corporation owned and controlled by the Milam family. The deed executed by the Camps stated therein that the conveyance was subject to the restrictions and limitations contained in a certain written agreement between the Camps and "Associates" dated June 15, 1965. This agreement provided, inter alia, that the Camps would convey the described realty; that the Camps could at any time raise the level of the lake from 871.00 to 881.00; that there would be no construction on the property lying between the lake and the "Associates'" property (the Camps had retained a 10-foot strip of land all around the lake for use as a walkway or roadway); mutual easements would be granted to insure free access to their respective property.
*97 The Milams completed their home on the 25-acre tract in July, 1965, and on August 1, 1965, that property was conveyed to the Milams by "Associates". Since 1965, the Milams have constructed a boathouse and stable on land owned by the Camps with their knowledge and consent. The lake has been used by the Milams for recreational purposes continually from the time of its completion until 1970, when the Camps sent the sheriff in to remove the Milams from "their" lake.
The bill of complaint in this case was originally filed by the Camps against the Milams and subsequently amended to add "Associates" as a party respondent. The bill charged that the Milams had been making use of a lake lying wholly on property owned by the Camps in such a manner as to interfere with the use and enjoyment of the lake by the Camps; specifically, by constructing a boathouse on the shore of the lake on property which was in exclusive possession of the Camps, and operating a motor boat in such a manner as to deprive the Camps of free use of the lake, and in building a stable on the Camps' property.
The prayer of the bill asked the court to declare that the Camps had sole and exclusive rights to the use of the lake and that the respondents had no interest therein. The bill also prayed that the court issue a permanent injunction barring the respondents from the use of the lake and ordering them to remove the stable and boathouse constructed upon the Camps' property.
The Milams filed an answer and crossbill in which they asserted that the Camps, on October 26, 1959, had agreed that the Milams, their heirs and assigns, would have free access to the lake and full water rights in the lake appurtenant to the ownership and title to certain real property described in a warranty deed dated June 15, 1965, executed by the Camps to "Associates". The cross-bill further averred that in reliance upon said agreement of October 26, 1959, the Milams constructed a dam to make the lake and that from the date of the completion of the dam until the present the Milams and "Associates" had exercised full possessory rights in and to all water rights of the lake including, but not limited to, fishing and swimming therein and operating power motor boats and skiing thereon.
The cross-bill further averred that in reliance on the agreement of October 26, 1959, the Milams constructed for themselves and for the benefit of "Associates" a brick home at a cost of approximately $55,000.00 and a basement at a cost of approximately $4,000.00. The cross-bill further alleged that the water rights in the lake were necessary and incident to the real property conveyed in said deed from the Camps to "Associates" as to greatly and materially enhance the value of the property and that the water rights were necessary and incident to the reasonable and convenient use and enjoyment of the real property so conveyed. The cross-bill also averred that the water rights constituted an easement and covenant running with the land.
The prayer of the cross-bill asked the court to decree that "Associates", its successors and assigns (Milams), own and have complete and full water rights in the lake and that the said water rights were an easement appurtenant to and running with the land conveyed in said deed.
"Associates'" answer and cross-bill set forth substantially the same facts as the cross-bill of the Milams, and contained substantially the same prayer.
The trial court rendered its final decree in which the relief sought by the Camps was denied in its entirety. The court further decreed that "Associates", its successors and assigns (Milams), own and have title to all water rights in and to the lake and that such water rights are an easement appurtenant to and running with the real property conveyed by warranty deed dated June 15, 1965, from the Camps to "Associates". The decree also states that the *98 Camps own and have title to all water rights in the lake, such water rights also being an easement appurtenant to and running with the real property owned by the Camps. The Camps' application for rehearing having been denied, they bring this appeal.
The Camps claim error and contend that they have exclusive ownership of the entire property on which the lake in question is situated and that no easement or other interest in and to said lake has been granted to the Milams, nor have the Milams otherwise acquired such interest. The Camps further contend that the use made of said lake by the Milams was at best a mere license revocable at the pleasure of the Camps.
The Milams, on the other hand, assert that they own full and complete water rights common with that of the Camps, and that the chancellor correctly construed the deed of June 15, 1965, giving effect to the intent of the parties as set forth in the final decree.
The court is of the opinion that the facts of this case, in keeping with the law applicable thereto, do not support the contentions of either party, we find no basis in the law for the legal conclusion of the court below that the Camps conveyed, or attempted or intended to convey, an easement to the water rights of said lake to "Associates" or its assigns (Milams).
The rules of construction of a written contract, including a deed, are well established by our cases. Where a court of equity is called upon to construe a deed (or other written contract), in ascertaining the intention of the parties, the plain and clear meaning of its terms must be given effect to, and the parties must be legally presumed to have intended what is plainly and clearly set out.
In the absence of fraud or mistake, it is only where the instrument is doubtful of meaning, or its language ambiguous, that the court may look beyond the "four corners" of the instrument to give clarity and specificity of meaning. Babcock v. Smith, 285 Ala. 557, 234 So. 2d 573; Taylor v. Hancock, 227 Ala. 645, 151 So. 596.
Our cases consistently hold that an easement can be created in only three ways: by deed; by prescription; or by adverse use for the statutory period. Kirkland v. Kirkland, 281 Ala. 42, 198 So. 2d 771; Kratchoville v. Cloverleaf Plaza, Inc., 276 Ala. 562, 165 So. 2d 112. Since the latter two do not apply (use by permission in this case is neither adverse nor exclusive), we must look to the deed and referenced agreement made between the parties on June 15, 1965.
Our difficulty here lies in the fact that there is nothing unclear or ambiguous in either the deed or the referenced agreement, neither of which contain any language purporting to convey as easement in the lake. The trial court, then, was powerless to declare a new and different contract into which the parties did not enter. Holt v. Long, 234 Ala. 369, 174 So. 759; Hattemer v. State Tax Commission, 235 Ala. 44, 177 So. 156.
Therefore, the trial court's interpretation of the deed, as set forth in its final decree, constitutes a reformation of the contract between the parties which is unauthorized by either the pleadings or the proof. Atlas Assurance Co. Limited, of London, England v. Byrne, 235 Ala. 281, 178 So. 451.
Having thus concluded, however, we are likewise constrained to the further conclusion that the relief sought by the complainants is also unauthorized. We hold that a legal interest did pass from the Camps to the Milamsnot the granting of an easement as contended by the Milams and as found by the trial court, and not a revocable license as contended by the Campsbut an irrevocable license for the reasonable use of the lake commensurate with its size and nature and as originally contemplated and intended by the parties.
*99 Generally speaking, the term "license" has been used in the common law to denote the doing of an act, i.e., the giving of one's consent. The revocability of a license is grounded on this concept. Since the granting of a license is the giving of one's permission to another to do a certain thing (or, in the case of a negative license, the consent for the benefit of another not to do a certain thing), this license is revocable at the will of the licensor, simply by the withdrawing of his permission. Messer v. City of Birmingham, 243 Ala. 520, 10 So. 2d 760; Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240. At the root of this concept is the familiar and often quoted language from Thomas v. Sorrell, 124 Eng. Rep. 1098, 1109:
To prevent possible injustice the law began to recognize that the giving of one's permission to another for the doing of certain acts with respect to the property of the former did not necessarily carry with it the unlimited right to withdraw the consent. The concept was broadened to look upon the license not merely as the giving of consent, but, in certain instances, the conferring of a legal righta license coupled with an interest.[1] From this broadened concept of a license came the ingrafting of the recognized exception to the general rule which may be stated thusly:
Thus, when expenditures contemplated by the licensor have been made by the licensee, the license, having been acted upon so as to greatly benefit the licensor, is said to have been executed. An executed license, for reasons founded upon the equitable principle of estoppel, becomes irrevocable and confers upon the licensee a substantive equitable right in the property.[3]
This interpretation and rule was adopted by this court in our decision in Rhodes v. Otis, 33 Ala. 578, wherein this court stated that:
Appellants rely on Messer v. City of Birmingham, supra; Hicks v. Swift Creek Mill Company, 133 Ala. 411, 31 So. 947; and similar cases to support their *100 proposition that a license is a mere personal privilege revocable at the will of the grantor. While this is generally a correct statement of the law, both Messer and Hicks recognize the exception to the general rule established by Rhodes v. Otis, supra. Where a valuable consideration has moved to the licensor from the licensee, and possession and use has been wholly or partly yielded to the licensee, the license becomes irrevocable. Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 66 So. 50.
Applying these legal principles to the facts of this case, we hold that the Milams became licensees and that this license extended to, and included, the reasonable use of the lake for purposes of swimming, fishing, boating, and other such reasonable uses as originally contemplated by the parties consistent with the Camps' right of common use thereof. We further hold that this license, when acted upon by the Milams through their expenditures in building the dam to the benefit of the Camps (constituting a consideration), became irrevocable; but this irrevocable status does not operate to expand or increase the nature and extent of its use.
It is clear from the evidence that so long as the Milams so limited their use of the lake, and so long as both parties enjoyed its common use, the Camps registered no objection and made no attempt to withdraw their permission. It was only when the Milams exceeded the permission granted by monopolizing the use of the lake so as to impede the Camps' right of common use, that the Camps objected and attempted to withdraw all consent for the use of the lake by the Milams.
While it is our holding that the Camps have no legal standing to enjoin the Milams' use of the lake, this holding is not to be construed to mean that the Camps do not have legal authority to restrict the Milams to its reasonable use as contemplated by the parties.
We further hold that this license of the Milams, although irrevocable, is by its very nature personal; and, being a personal right, it is not an interest which attaches to or runs with the land, nor can it be assigned, conveyed or inherited. Neither can the use of the lake under this license ever ripen into an easement by prescription, however long continued. Kirkland, supra.
In view of the above stated conclusions, we find that the trial court was correct in denying the complainants' prayer for the specific relief sought (i.e., to enjoin the Milams from all use of the lake). However, the trial court erred in granting the relief sought by the respondents in their cross-bills.
Consequently, this cause must be reversed and remanded for further proceedings not inconsistent herewith.
Affirmed in part and reversed in part and remanded.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur.
Rehearing denied May 10, 1973. All the Justices concurring except COLEMAN, J., dissenting.
COLEMAN, Justice (dissenting):
On further consideration, I am of opinion that the rehearing should be granted and the cause remanded for further proceedings.
I do not agree that the license to use the lake granted to Milam is irrevocable for the life of Milam or for any other period of time. Rhodes v. Otis, 33 Ala. 578, does not hold that a license granted for a consideration paid by the licensee to licensor must be specifically performed, but Rhodes does hold that if a licensor has granted a license for a consideration paid to licensor by licensee by agreement, then the licensee may recover from the licensor, as allowed by law, for damages sustained by licensee as the result of licensor's breach of his agreement.
*101 I have found no case which has the effect of compelling specific performance of an agreement to grant a license. The holding of the majority has the same effect as compelling specific performance. In Hicks Bros. v. Swift Creek Mill Co., 133 Ala. 411, 31 So. 947, this court said:
In Hicks this court cited with approval Thoemke v. Fiedler, 91 Wis. 386, 64 N.W. 1030. An excerpt from the opinion of the Wisconsin Court recites:
In the instant case the license was not granted by deed, prescription, or adverse possession. I have found no case in this state which holds that a license not created by deed, prescription, or adverse possession can ripen into an easement for years, or for life by specific performance or by virtue of the doctrine of estoppel or any other theory.
Being of opinion that the holding to the contrary is erroneous I respectfully dissent.
[1] See Clark, Covenants and Interest Running with Land, (1947 ed.), pp. 13-64.
[2] City of Owensboro v. Cumberland Telephone & Telegraph Co., 230 U.S. 58, 64, 33 S. Ct. 988, 990, 57 L. Ed. 1389, 1393.
[3] Megarry and Baker, Snell's Principles of Equity, (1966 ed.), pp. 629-633. | January 25, 1973 |
379eb76e-f1aa-4c75-89dd-fe3595916d6e | Shuler v. State | 324 So. 2d 319 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 319 (1975)
In re Charles L. SHULER
v.
STATE.
Ex parte STATE of Alabama.
SC 1560.
Supreme Court of Alabama.
November 26, 1975.
Rehearing Denied January 9, 1976.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
No appearance for respondent.
FAULKNER, Justice.
Petition of the State of Alabama for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Shuler v. State, 56 Ala.App. 599, 324 So. 2d 313.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | November 26, 1975 |
235d93db-97a7-44b1-9806-58537fe70c7d | Tarver v. Board of Com'rs of Alabama State Bar | 274 So. 2d 61 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 61 (1973)
In re John D. TARVER
v.
BOARD OF COMMISSIONERS OF ALABAMA STATE BAR.
In the Matter of John D. Tarver.
SC 20.
Supreme Court of Alabama.
February 8, 1973.
Rehearing Denied March 8, 1973.
*62 John D. Tarver, pro se.
William H. Morrow, Jr., Montgomery, for respondent.
PER CURIAM.
Petitioner, John D. Tarver, an attorney, seeks review of a resolution of the Board of Commissioners of the Alabama State Bar adjudging petitioner to be guilty of Charges TWO and THREE of a complaint heretofore brought against him by the Grievance Committee of the Huntsville-Madison County Bar Association. He was found not guilty of Charge ONE. Petitioner was given a suspension from the practice of law for three months and a public reprimand.
Following are the charges as last amended, viz:
"The said attorney did heretofore represent Flora S. Hortin and Francis Hortin and filed suits on behalf of his clients in the Circuit Court of the 23rd Judicial Circuit, cases No. 19875 and No. 19876. The said attorney negotiated a settlement of the above described cases on behalf of his clients for the sum of $5000.00. The said attorney agreed with his clients to disburse the proceeds of the settlement as follows: (a) To pay an indebtedness of his clients in the amount of $1107.00 to Dr. Paul H. Gilliam, chiropractic physician, 2608 Oakwood Avenue, N. W., Huntsville, Alabama; (b) to retain one-third as his attorney's fee; and (c) to disburse the balance to his clients. The said attorney negotiated with Dr. Paul H. Gilliam and induced him to reduce his bill from $1107.00 to $907.00. On, to-wit: June 5, 1970, the said attorney caused to be delivered to Dr. Paul H. Gilliam his check in the sum of $907.00. However, in disbursing funds to his clients, the said attorney deducted from two-thirds of $5000.00 the sum of $1107.00, and on to-wit: June 5, 1970, caused to be delivered to his clients his check in the sum of $2226.34.
"The said attorney acted in bad faith or with fraudulent purpose in wilfully failing to pay over money collected by him for his client in the sum of, to-wit: $200.00.
"The Grievance Committee charge that in doing the above described acts the said attorney was guilty of violating or failing to comply with Rule 27, Section A, of the Rules Governing the Conduct of Attorneys in Alabama, said rule providing:
"For Charge Two the Grievance Committee adopts all of the averments of the *63 first paragraph of Charge One, and allege that the above described disbursements of money were made without advising his clients that the payment to Dr. Gilliam was in the amount of $907.00 rather than $1107.00.
"The Grievance Committee charge that in doing the above described acts the said attorney was guilty of violating or failing to comply with Rule 33, Section A, of the Rules Governing the Conduct of Attorneys in Alabama, said rule providing:
"For Charge Three the Grievance Committee adopts all of the averments of Charges One and Two, and allege that the said attorney being guilty of a violation of Rule 27, Section A, and/or Rule 33, Section A, of Rules Governing the Conduct of Attorneys in Alabama, is guilty of conduct unbecoming an attorney at law.
"The Grievance Committee charge that in doing the above described acts the said attorney was guilty of violating or failing to comply with Rule 36, Section A, of the Rules Governing the Conduct of Attorneys in Alabama, said rule providing:
The circumstances out of which these charges arose, as stated in the "STATEMENT OF THE FACTS" in petitioner's brief, are:
"The complaint filed by the Grievance Committee of the Huntsville-Madison County Bar Association before the Board of Commissioners of the Alabama State Bar contained three charges to the effect that Petitioner was employed by a woman and her husband in two cases that he filed arising out of the wife's accident, that he received certain monies as their attorney and that he failed to pay over to the clients, a certain portion [of] monies collected by him for and on behalf of the clients. Charge One of the complaint alleged in substance that the petitioners conduct in this regard was in violation of Rule 27, Section A. of the Amended Rules Governing the conduct of Attorneys in Alabama, 239 Ala. XXIII, et seq., 272 Ala. XXI, XXII, while Charge Two alleged that the Petitioner's conduct was a violation of Rule 33, Section A of the Rules, supra and Charge Three alleged that such conduct was a violation of Rule 36, Section A. of the Rules, supra.
"At the evidentiary hearing, the Grievance Committee's first witness was Mrs. Flora Hortin who employed Petitioner to represent her and her husband to recover damages for injuries sustained by her as a result of an accident in December, 1968. She testified that she received a call from petitioner with regard to settling her case and subsequently received a $2,226.34 check accompanied by a release to be signed by her and her husband. She testified that the attorney's check was negotiated but she refused to sign the release for the petitioner. Her testimony further revealed that she had been treated by a chiropractor regarding her injuries, Dr. Paul Gilliam. Mrs. Hortin stated that she had a conversation with Petitioner regarding court costs in her case but could not remember how costs were mentioned. She testified that she had no conversation with petitioner regarding the Chiropractor's bill but that she had found out soon after getting the check that his bill was $1107.00 but that Petitioner had gotten the doctor to reduce his bill by $200.00 and the doctor was paid $907.00 by Petitioner.
"Dr. Paul Gilliam was called next by the Grievance Committee and testified that he reduced his bill by $200.00 at the request of Petitioner. The Chiropractor stated he had *64 seen Mrs. Hortin over 100 times and had started seeing her some time before the accident when he was treating her for a degenerative disease of Osteoarthritis. He stated that he failed to send the original bill to the Petitioner and probably advised him of the amount in a telephone conversation. He Stated that he and Mrs. Hortin were good friends and he did not mind reducing his bill. He testified that a portion of the $1107.00 bill was due because of his treating Mrs. Hortin for a disease which was unrelated to the accident and that he thought Mr. Tarver told him that Mrs. Hortin was not aware of the reduction when Petitioner got him to reduce his bill.
"Petitioner offered his own testimony to the effect that he had represented the Hortins in a claim for damages, had filed suit and negotiated with an adjustor who offered $5,000 to settle which was accepted by Mrs. Hortin in a telephone conversation. Petitioner stated that he didn't tell Mrs. Hortin about the reduction because he didn't want to hurt her feelings by bluntly telling her that Tarver thought she had been taken advantage of in that the amount of the bill was so high, and he was waiting to think of a tactful way to put it. Petitioner stated he advised Mr. Hortin that she would receive about $150.00 additional after court costs were paid which was in the settlement terms. Petitioner paid the Court Costs of $56.00 and delivered a check to Hon. Bill Morrow for $200.00 plus $12.00 interest which he delivered to Mr. and Mrs. Hortin."
Petitioner's "STATEMENT OF THE FACTS" suffers from several omissions, particularly as to the dates of various acts mentioned. To better understand the facts, the following dates are supplied, as well as certain other relevant facts.
The auto accident in which the Hortins were injured occurred December 23, 1968. In March or April, 1969, petitioner was employed as their attorney. There was no written contract of employment.
Petitioner advised the Hortins by telephone of the settlement offer of $5,000, and they accepted it. About a week before the checks were written on June 5, 1970, petitioner advised the Hortins by telephone that he had received the settlement check of $5,000. He particularly called to have them come by and sign releases.
Both petitioner and Mrs. Hortin appear to have known that the amount of Dr. Gilliam's bill was $1107 before the settlement was effected. It seems to have been understood between them that Dr. Gilliam's bill was to be paid out of the proceeds of the settlement.
The testimony of petitioner is unclear as to whether or not, at the time of the second telephone conversation, he had already negotiated the $200 reduction in Dr. Gilliam's bill. If not, it appears that he effected this reduction the same day he talked to Mrs. Hortin.
On June 5, 1970, petitioner drew checks on his trust account to Dr. Gilliam for $907, to the Hortins for $2,226.34, and the balance (including the $200 reduction in Dr. Gilliam's bill) to himself. The bank record of his trust account is shown to have been exhausted when these checks were paid, except for the small remainder of $1.02. In petitioner's testimony, he appears to maintain that the $200 never left his trust account.
After Mrs. Hortin received her check, she called petitioner and reminded him that he had told her he would send a list of disbursements with the check. Petitioner told her he could tell her over the telephone what the disbursements were. He told her: "I took my third. I sent the doctor his bill, and you received the rest."
(Petitioner's explanation as to why he did not disclose to Mrs. Hortin the fact that he had requested and obtained a reduction of $200 in the chiropractor's bill is that he hadn't figured out how he was going to tell her that she had been charged too much. He also appears to have maintained *65 that he was keeping the $200 out of which to pay court costs and until the Hortins signed releases for the insurance company.)
On July 14, 1970, Mrs. Hortin wrote a letter of complaint to the Huntsville-Madison County Bar Association Grievance Committee after learning of the reduction in Dr. Gilliam's bill.
The Grievance Committee met on January 15, 1971, to hear the complaint. The petitioner was given notice of the meeting and the details of the complaint.
The Grievance Committee was advised by petitioner of a conflict between the meeting date and a federal court engagement which he had, and that he would not appear. He submitted, however, a letter, dated January 15, 1971, directed to the committee chairman, Honorable M. U. Griffin, giving his version of the complaint. In the letter, he offers to pay the Hortins a balance of $144.50, which he maintains remains after payment of court costs.
It was eight months later, however, on September 2, 1971, before petitioner delivered his check for $212 ($200 plus interest of $12) to Honorable William H. Morrow, Jr., general counsel for the Bar Association, to be forwarded to the Hortins as the balance due them.
Charges were filed against petitioner by the Board of Commissioners of the Alabama State Bar on June 2, 1971. Amended charges were filed July 14, 1971. Testimony was taken before a duly appointed commissioner on September 2, 1971 and October 18, 1971. By a resolution adopted on December 3, 1971, the Board of Commissioners found petitioner not guilty of Charge ONE and guilty of Charges TWO and THREE, suspending him from the practice of law for three months and adjudging a public reprimand.
Petitioner's principal contention for reversal is that the Board did not bear its burden of proof to show that petitioner's failure to turn over money collected for his client was in bad faith or with fraudulent purpose, and that the resulting acquittal of Charge ONE, compels a like finding with respect to Charges TWO and THREE.
Petitioner cites Ex Parte Acton, 283 Ala. 121, 214 So. 2d 685 (1968); In re Carroll, 287 Ala. 29, 247 So. 2d 350 (1971); and, our most recent decision, In re Sheier, 288 Ala. 551, 263 So. 2d 502 (1972), as authority for his contention.
In substance, the holding of Acton, supra, is that for a conviction to stand, based on an alleged misappropriation of a client's funds (Rule 27, Section A), there must be proof, to the reasonable satisfaction of the trier of fact, that the failure to turn over the money to the client was in bad faith or with fraudulent purpose. Acton was followed in Carroll, supra, and Sheier, supra.
This court held in Carroll, inter alia, that where identical facts were characterized as a violation of three separate rules, a finding of not guilty of those charges laid under Rule 12, Section A (Suppressing or Stifling Evidence or Testimony) and Rule 25, Section A (Knowing False Representation), compelled a finding of not guilty of those other charges laid under Rule 36, Section A (Conduct Unbecoming an Attorney).
The court reasoned that it would be contradictory to say, "You have failed to prove the allegations, which you allege violate Rule 25 and Rule 12, but you have proved the same allegations where you allege them to violate Rule 36." In re Carroll, supra. Thus, an attorney cannot be not guilty of knowingly making a false representation, yet be guilty of conduct unbecoming an attorney because he knowingly made a false representation.
In Sheier, this court reviewed its holdings in Acton and Carroll. In Sheier, both Acton and Carroll were followed, the court holding that a suspension from the practice of law, predicated upon a finding of guilty under Charge TWO for conduct unbecoming an attorney at law, for a failure to pay over funds to a client (Rule 36), was *66 unauthorized, and could not stand, when it did not appear that the failure resulted from bad faith or fraudulent purpose and there was a finding of not guilty under Count ONE for misappropriation of funds of the client (Rule 27).
In the Sheier case, the same facts were alleged in both Counts ONE and TWO. The Board found petitioner not guilty of Count ONE, based, as pointed out in the opinion, "in part at least, on a lack of evidence of bad faith or fraudulent purpose on the part of petitioner." Then, the court held such a finding also compelled a finding of not guilty under Charge TWO, because the failure of the proof to support the misappropriation charge (Charge ONE) was likewise a failure of proof to support the unbecoming conduct charge (Charge TWO).
In the case at bar, certain basic facts are alleged in the first paragraph of Charge ONE and adopted in Charges TWO and THREE.
Charge ONE avers that, in doing these acts, petitioner acted in bad faith or with fraudulent purpose in wilfully failing to pay over money, to-wit: $200, collected by him for his client, a misappropriation charge (violation of Rule 27, Section A).
In Charge TWO, an additional averment appears which alleges that the disbursements were made by petitioner without advising the clients that Dr. Gilliam was paid $907.00 rather than $1107.00. Charge TWO avers that, in doing these acts, the petitioner was guilty of deceit or wilful misconduct (violation of Rule 33, Section A).
Charge THREE adopts all the averments of Charges ONE and TWO and avers that, in being guilty of either of these charges, petitioner was guilty of conduct unbecoming an attorney at law (violation of Rule 36, Section A).
At the outset, the court takes this opportunity to say that it considers its decisions in Acton, Carroll and Sheier to correctly state the law under the facts of those cases and to reaffirm the holdings in those cases.
Here, however, the court is not faced with the same situation as it faced in Carroll and Sheier. In those cases, each charge was based on identical facts, the separate charges merely alleging the same facts to be violations of different rules.
In the instant case, there are three charges, and while each avers the same basic facts, Charge TWO adds the additional averment constituting the alleged deceit.
The gravamen of Charge ONE is wilfully failing to pay over money, to-wit: $200.00 collected by him for his client. The gravamen of Charge TWO is deceit or wilful misconduct in making the disbursements of money, without advising his clients that the payment to Dr. Gilliam was $907.00 rather than $1,107.00. The gravamen of Charge THREE is conduct unbecoming an attorney at law in being guilty of either Charge ONE or Charge TWO.
We pretermit, for the moment, any consideration as to Charge THREE, first addressing ourselves to a discussion of Charges ONE and TWO.
It is our view that there is no incompatibility (such as found in Carroll) between the not guilty finding under Charge ONE (misappropriation) and the guilty finding under Charge TWO (deceit or wilful misconduct).
Is not an attorney, who makes a false suggestion to his clients concerning the facts or who conceals from his client the facts as to his disposition of the client's funds, guilty of deceit?
This court had such a question presented to it in a disbarment case. The charge was "deceit and willful misconduct" against the attorney, who undertook to collect, and did collect, certain promissory notes for a client and then proceeded to mark them paid; but who, in response to inquiries from the *67 client, represented that they had not been collected. The attorney was held to be guilty of deceit and wilful misconduct. Peters v. State, 193 Ala. 598, 69 So. 576 (1915).
In Peters, this court, speaking through Mr. Justice Thomas C. McClellan, defined "deceit," viz:
The disbarment of Peters was prosecuted under § 2991, Code of 1907, et seq., and particularly § 2992, providing, inter alia, for the removal or suspension of an attorney who is found guilty, to the satisfaction of the court, of "* * * any deceit or willful misconduct in his profession." (This code section appears to be identical with Rule 33, with an almost imperceptible difference, in that the word "willful" in the Code is spelled "wilful" in Rule 33.)
The holding of this court in Peters is particularly helpful in resolving the issue presented in the case at bar, viz:
While it is true that Tarver never represented to his client that he had not collected any of the clients' funds, as Peters did nevertheless, the evidence here would support the conclusion that he did falsely suggest to his clients that he had paid the chiropractor's bill in full, when in fact, he had negotiated a discount of that bill (which he personally retained) and which he concealed from his clients until charges against him were being investigated by the Grievance Committee. Thus, the evidence is sufficient to sustain the resolution of the Board of Commissioners under Charge TWO.
The further question for the court's consideration is whether the finding of guilty under Charge THREE can stand under the doctrine of Acton, Carroll and Sheier, in view of the finding of not guilty under Charge ONE. It can stand, because there was sufficient evidence before the Board to substantiate a finding that petitioner was guilty of conduct unbecoming an attorney in having been guilty of deceit or wilful misconduct under Charge TWO.
Thus, the court is not confronted with the same issue presented in Carroll and Acton, where it was held that an attorney's disbarment could not be supported under the charge of conduct unbecoming an attorney, when there had been an acquittal of the specific charge, and both charges were based on the same facts.
There is no merit in petitioner's other contention that five questions and four *68 answers in the transcript were underlined, resulting in prejudicial error in violation of his fundamental rights. While the court does not condone the permitting of a record to be so marked, it did not result in substantial prejudice to petitioner in this court's view. To be frank, the court gave no particular notice to the underlining of these few questions and answers until called to the court's attention by petitioner's contention.
The entire record has been carefully read, and the court is convinced that petitioner has been accorded every procedural safeguard and right to which, under due process, he was entitled, and that he received a fair hearing before the Board of Bar Commissioners. See In re Sullivan, 283 Ala. 514, 219 So. 2d 346 (1969).
Let the resolution of the Board of Commissioners of the Alabama State Bar be affirmed.
Affirmed.
All the Justices concur. | February 8, 1973 |
4b424e39-488e-45dd-8a09-3bba35742963 | Horsley v. Horsley | 280 So. 2d 155 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 155 (1973)
In re Dortha Lee HORSLEY
v.
John Henry HORSLEY.
Ex parte John HORSLEY.
SC 410.
Supreme Court of Alabama.
June 28, 1973.
Caine O'Rear, Jr., Jasper, for petitioner.
James E. Wilson, Jasper, for respondent.
BLOODWORTH, Justice.
Petition of John Horsley for writ of certiorari to the Court of Civil Appeals to *156 review and revise judgment and decision of that court in Horsley v. Horsley, 50 Ala.App. 445, 280 So. 2d 150 (1973) is denied.
In denying the petition for writ of certiorari in this case, this court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Civil Appeals. See Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Opelika Coca-Cola Bottling Co., Inc. v. Johnson, 286 Ala. 460, 241 So. 2d 331; Cooper v. State, 287 Ala. 728, 252 So. 2d 108; and Winn-Dixie Montgomery, Inc. v. Brindley, 289 Ala. 755, 266 So. 2d 150.
Writ denied.
HEFLIN, C. J., and McCALL and FAULKNER, JJ., concur.
COLEMAN, J., concurs specially.
COLEMAN, Justice (concurring specially):
In the instant case, it appears from the opinion of the Court of Civil Appeals that decree was rendered in favor of the wife granting divorce on the ground of cruelty. The Court of Civil Appeals held that the action of the trial court in granting the wife "no award of alimony was arbitrary," and reversed.
The allowance of alimony in the instant case is authorized by Title 34, §§ 31, 32, Code 1940, which recite:
With respect to granting alimony and attorney's fees this court has said:
The husband applies for certiorari and asserts that the Court of Civil Appeals erred in holding that "... the learned trial court erred to reversal when it failed to grant a reasonable sum to the wife as alimony from the income of the husband as such failure was an abuse of judicial discretion."
In order to determine whether the Court of Civil Appeals is correct in its holding as aforesaid, this court would necessarily be required to review the evidence in the transcript which was before the Court of Civil Appeals.
This court has denied certiorari to review judgment of the Court of Appeals where review would involve a consideration of evidence not set out in the opinion. City of Prichard v. Harold, 237 Ala. 277, 186 So. 504.
For the reason stated in the authorities cited I concur in the denial of the application for certiorari. | June 28, 1973 |
71c6d1ff-39d6-45a1-8907-b80c6bf0f82e | Bryant v. State | 272 So. 2d 297 | N/A | Alabama | Alabama Supreme Court | 272 So. 2d 297 (1973)
In re Wayland Earl BRYANT and Ranald Williams
v.
STATE.
Ex parte Wayland Earl Bryant and Ronald Williams.
SC 218.
Supreme Court of Alabama.
January 11, 1973.
Ralph I. Knowles, Jr., Drake, Knowles & Still, University, for petitioners.
No brief for the State.
FAULKNER, Justice.
Petition of Wayland Earl Bryant and Ronald Williams for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Bryant and Williams v. State, 49 Ala.App., 272 So. 2d 286.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | January 11, 1973 |
bf0731d8-3aba-43ab-b61b-383bc002d85a | Battles v. Pierson Chevrolet, Inc. | 274 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 274 So. 2d 281 (1973)
Versie BATTLES
v.
PIERSON CHEVROLET, INC., et al.
SC 102.
Supreme Court of Alabama.
February 22, 1973.
*282 Burns, Carr & Shumaker, Gadsden, for appellant.
Inzer, Suttle, Inzer & Pruett, Gadsden, for appellee Pierson Chevrolet, Inc.
London, Yancey, Clark & Allen, Birmingham, for appellee General Motors Corp.
PER CURIAM.
This is an appeal from a judgment of nonsuit taken by the plaintiff below because of certain adverse rulings of the trial court on pleadings.
The suit was filed in the Circuit Court of Jefferson County on April 17, 1970, by Versie Battles, as mother of George Battles, deceased, against Pierson Chevrolet, Inc., a corporation, and General Motors Corporation, a corporation.
Mrs. Battles sought to recover damages for the death of her twenty-two-year-old son, who died in the State of Georgia as a result of injuries which he sustained in an automobile accident which occurred on a public highway near Harlem, Georgia, on November 26, 1968. George Battles at the time of the accident was driving a 1969 Chevrolet manufactured by General Motors and "co-purchased" by George and the plaintiff from Pierson Chevrolet, Inc., one of General Motors' retail dealers in Etowah County, Alabama.
The plaintiff amended her complaint by adding Counts 4 and 5 and by withdrawing all other counts. Plaintiff later amended her complaint by adding Count A. The defendants each interposed a plea captioned "Plea Five," to which the plaintiff demurred.
The two concluding paragraphs of the judgment of the trial court here under review show those rulings of the court which culminated in and superinduced the taking of the nonsuit. Roan v. Associates Discount Corporation, 281 Ala. 100, 199 So. 2d 643. Those paragraphs read:
The judgment of nonsuit is sufficient to support an appeal although it is usual for such judgment entries to contain the words "let the defendant go hence." We have held that such is the legal effect of a judgment containing substantially the language of the judgment here under review. Anderson v. Howard Hall Company, 278 Ala. 491, 179 So. 2d 71, and cases cited.
The parties will be designated as plaintiff and defendants, according to the position they occupied in the trial court.
Counts Four and A charge the defendants with negligence. The demurrers interposed to those counts were overruled; consequently, the sufficiency of those counts is not before us.
Plaintiff does complain of the action of the trial court in sustaining the demurrers *283 interposed separately by the defendants to Count Five. [See Appendix]
Count Five will be set out in the report of the case.
In Count Five plaintiff seeks to show a cause of action "for the homicide or wrongful death" of her twenty-two-year-old son based solely on the alleged breach of an implied warranty made in Alabama and breached in Georgia, according to the averments of the court when it is construed most strongly against plaintiff, as they must be construed when assailed by demurrer. Atkins v. Wallace, 273 Ala. 210, 137 So. 2d 750; Thompson Tractor Co. v. Cobb, 283 Ala. 100, 214 So. 2d 558; Harper v. Talladega County, 279 Ala. 365, 185 So. 2d 388; Moreno v. May Supply Co., 280 Ala. 157, 190 So. 2d 710.
Plaintiff, in Court Five, does not seek recovery under § 123, Title 7, Code of Alabama, our appropriate so-called homicide or wrongful death statute. Her cause of action in that count is based on the Georgia homicide or wrongful death statute, but the Georgia statute is not properly pleaded. There are grounds in the demurrer of each defendant taking that point.
The judgment sustaining the separate demurrers of the defendants was general, merely sustaining the demurrers without specifying any one of the numerous grounds assigned. If any ground of the demurrers interposed separately by the defendants was good, the judgment sustaining the demurrers must be affirmed. Shannon v. Wisdom, 171 Ala. 409, 55 So. 102; Buettner Bros. v. Good Hope Missionary Baptist Church, 245 Ala. 553, 18 So. 2d 75.
We will refer to some of our cases which tend to support the statement above that the Georgia "homicide or wrongful death" statute is not properly pleaded in Count Five.
In Forsyth v. Preer, Illges & Co., 62 Ala. 443, Mr. Chief Justice Brickell, writing for the court, said:
Mr. Chief Justice Stone wrote to like effect in Lomb v. Pioneer Savings & Loan Co., 96 Ala. 430, 11 So. 154.
For other cases with similar holdings see Tatum v. Commercial Bank & Trust Co., 193 Ala. 120, 69 So. 508; Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 138 So. 270; Dawson v. Dawson, 224 Ala. 13, 138 So. 414; Equitable Life Assur. Soc. of United States v. Brandt, 240 Ala. 260, 198 So. 595; Hall v. Proctor, 242 Ala. 636, 7 So. 2d 764; Brotherhood of R. R. Trainmen Ins. Dept. v. Pemberton, 38 Ala.App. 647, 93 So. 2d 797, cert. denied, 265 Ala. 694, 93 So. 2d 801. Also see 134 A.L.R., p. 577; 22 Alabama Lawyer, p. 24; 24 Alabama Lawyer, pp. 364 et seq.
We hold that the trial court did not err in sustaining those grounds of the demurrer which took the point, in effect, that Count Five does not show that a cause of action for wrongful death based upon breach of warranty can be maintained under the laws of Georgia.
It follows from what has been said above that the judgment sustaining the demurrers to Count Five is due to be affirmed. It is so ordered.
We do not wish to be understood as holding that other grounds of the demurrers interposed to Count Five were or *284 were not well taken. We see no occasion to deal here with the other grounds.
The remaining question for our consideration is whether plaintiff has shown on this appeal that the trial court erred to a reversal in overruling plaintiff's demurrers interposed separately to identical pleas filed separately by the defendants. The pleas read:
There were ten grounds of demurrer addressed to each of the pleas. None of the grounds is specifically mentioned in plaintiff's brief. In Birmingham Trust & Savings Co v. Currey, 175 Ala. 373, 57 So. 962, Mr. Justice Sayre, after pointing out that the sufficiency of both pleas was questioned on that appeal, wrote for the court:
It is well established by the decisions of this court that grounds of demurrer not adequately argued in brief will be considered as waived. Blount Bros. Const. Co. v. Rose, 274 Ala. 429, 149 So. 2d 821; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So. 2d 164.
It is difficult to relate plaintiff's argument in brief to any ground of the demurrer, but it seems to us that the argument made comes closer to being in support of Ground 9 than any other ground or grounds. Ground 9 reads:
The defendants' pleas numbered Five, one of which is set out above, were assigned to Counts Four and A, the negligence counts. Those pleas take the position that the Alabama statute of limitation of one year (§ 26, Title 7, Code 1940) is a bar to both of those negligence counts.
Ground 9 of the demurrer was, no doubt, directed to the pleas numbered Five because of certain language included in the opinion of this court in the case of Mullins v. Alabama Great Southern R. Co., 239 Ala. 608, 195 So. 866, which language will be hereinafter italicized. That case involved an action for wrongful death based upon the laws of Georgia, but prosecuted in the courts of this state. The plaintiff appealed to this court from a judgment of *285 nonsuit rendered after the trial court had overruled his demurrer to the defendant's plea setting up the Alabama statute of limitation of one year as a bar to the action. In upholding the action of the trial court, this court said in part as follows:
We do not think that the language italicized above, and similar language found elsewhere in the Mullins opinion, supra, should be considered as a holding by this court that if the decisions of the Supreme Court of Georgia had been properly pleaded, this court would have arrived at a different conclusion. It has been said: "It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision." Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 57 S. Ct. 356, 358, 81 L. Ed. 532; State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487.
The general rule, long accepted by most of the courts of this country for determining the statute of limitations to be applied in such cases as the Mullins case and the case at bar is to the effect that where a wrongful death occurs outside of the state in which the action is brought, the statute of limitations of the state where the action is brought controls unless the homicide or wrongful death statute where the accident occurred has a built-in statute of limitations. In that event, the statute of the state where the accident occurred is generally held to control. Larue v. C. G. Kershaw Contracting Co., 177 Ala. 441, 59 So. 155; Nelson v. Eckert, 231 Ark. 348, 329 S.W.2d 426; Sherley v. Lotz, 200 Va. 173, 104 S.E.2d 795; Edison v. Lewis (Okl.), 325 P.2d 955; McDaniel v. Mulvihill, 196 Tenn. 41, 263 S.W.2d 759.
We see no reason why there would have been a different result in the Mullins case, supra, if the Georgia homicide or wrongful death statute had been properly pleaded, since that statute did not limit the duration of the time within which the right granted thereunder had to be exercised.
But that question aside, the Georgia statute has not been properly pleaded to pleas numbered Five. True, the plaintiff in her Counts Four and A sought to negative the existence of the defensive matter brought forward in pleas numbered Five or to anticipate such defensive matters. But this court has held that the complaint should not anticipate the defense and in doing so it violates a plain rule of pleading. Even where the complaint states a good cause of action, if it anticipates an expected defense it is liable to demurrer. Meharg v. Alabama Power Co., 201 Ala. 555, 78 So. 909. The proper way to have pleaded the Georgia "case law" was by special replication to Pleas Five and not by demurrer. Ellis v. Black Diamond Coal Mining Co., 268 Ala. 576, 109 So. 2d 699.
We hold that reversible error is not made to appear on this appeal in connection with the action of the trial court in sustaining the defendants' demurrers to Count Five and in overruling the plaintiff's demurrer interposed to the pleas numbered Five filed by each of the defendants.
*286 We conclude that the judgment of the trial court is due to be affirmed. It is so ordered.
In view of the special concurrence of Mr. Justice Faulkner, it is deemed advisable to emphasize the fact that this appeal does not present the question as to whether the breach of an implied warranty is a "wrongful act, omission or negligence" within the meaning of our statutes which give a right of action for wrongful death. Sections 119, 123, Title 7, Code of 1940. Since this important and complex question is not presented to us on this appeal, we do not think that we should deal with it by way of gratis or obiter dictum. The courts of other states which have dealt with the question are in disagreement. In some instances, the decisions have turned on the language of the particular homicide or unlawful death statute.
Our affirmance of the trial court's action sustaining the demurrers interposed to Count Five of the amended complaint is based solely on the ground that said Count does not properly set out the law of Georgia upon which plaintiff bases her right to recover. In addition to the cases heretofore cited in support of that holding, we call attention to the case of McDougald's Adm'r. v. Rutherford, 30 Ala. 253, wherein it is written:
We are unable to relate all that is said in the dissenting opinion of Mr. Justice Jones to the holdings in this majority opinion. These holdings are that the trial court did not err in sustaining the demurrers of the defendants to Count Five of the amended complaint or in overruling the plaintiff's demurrer interposed to the pleas numbered Five filed by each of the defendants. Thus, we will not undertake to analyze the dissenting opinion in all its aspects.
A few observations, however, appear to be in order.
If we correctly understand the dissent, it does not contend that our holding to the effect that the Georgia law was not well pleaded is not in accordance with previous holdings of this Court.
The author of the dissent is apparently disenchanted with all of the adjective law in effect at the time this case was tried at nisi prius and, consequently, does not agree with the many cases cited in this opinion in support of the trial court's action in sustaining the demurrers of the defendants to Count Five of the amended complaint. This Court should not reverse the judgment the trial court rendered in exact compliance with the law in force and effect at the time of the rendition of the judgment.
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 and McCALL, JJ., concur.
FAULKNER, J., concurs specially.
JONES, J., dissents.
HEFLIN, C. J., not sitting.
The plaintiff claims of the defendants the sum of ONE MILLION AND NO/100 ($1,000,000.00) DOLLARS damages for that heretofore on, to-wit: the 11th day of November, 1968, she and her 22 year old son, George Darrel Battles, for a valuable consideration co-purchased in Etowah County, Alabama, from the defendant Pierson Chevrolet, Inc., a new 1969 Chevrolet automobile which was manufactured by the defendant General Motors Corporation, and plaintiff avers that on said occasion and prior thereto the defendant Pierson Chevrolet, Inc. was one of the retail dealers of the defendant General Motors Corporation. The bill of sale for the said automobile was made to the plaintiff, and both the plaintiff and her said son signed the conditional sales contract for the said automobile as co-purchasers. And plaintiff avers that her said son had the use and possession of the said automobile, and the said automobile was to be used for personal, family or household purposes. Plaintiff avers that there was an implied warranty by the said defendants that the said automobile was merchantable and fit for the ordinary purposes for which such an automobile is used, to-wit: to be driven on public highways. Plaintiff avers that the said automobile was used by her said son for driving on the public highways and that said implied warranty was breached in that the steering mechanism of the said automobile was defective and the defendants knew or in the exercise of reasonable diligence should have known that the said automobile was not merchantable and was not fit for the ordinary purposes for which such an automobile is used and was not fit to be used for driving on the public highways. And plaintiff avers that while being driven on a public highway near Harlem, Georgia, to-wit: U.S. Highway #78 at or near a point 2.5 miles East of the city limits of Harlem, Georgia, on to-wit: the 26th day of November, 1968, the steering mechanism of the said automobile malfunctioned or broke and proximately caused the said automobile being driven by the plaintiff's son on said public highway to run into the side of a truck also being driven on said highway at said time and place, and as a proximate consequence of the said unmerchantability and breach of said implied warranty the plaintiff's said son was so grievously injured in said accident that he died, for all of which plaintiff claims damages, and plaintiff avers that notice of the breach of the said implied warranty was given the defendants within a reasonable time by certified mail, return receipt requested. And plaintiff avers that George Darrel Battles, deceased, was her son and was killed in the State of Georgia. The further avers that under the laws of the State of Georgia, the mother of a child, whether the child is sui juris or not, may recover for the homicide or wrongful death of her child, and is entitled to recover the full value of the life of her dead child, which is defined as the full value of the life of the decedent, as shown by the evidence, without deduction for necessary or other personal expenses of the decendent had he lived. She further avers that there is a two year limitation of action for wrongful death under Georgia law.
FAULKNER, Justice (specially concurring).
I wish it clear that in my judgment there is a cause of action in Alabama for breach of warranty resulting in death. In defining damages for breach of warranty, the Alabama Commercial Code, § 2-714, states:
Narrow construction of this provision so as to allow recovery for non-fatal, but not for fatal injury, would defeat the legislative intent. See Title 7A, § 1-106, Code of Alabama 1940 (Recompiled 1958). It would bring back from the legal history *288 museum the moribund doctrine distinguishing fatal from non-fatal injury, and rewarding a tortfeasor who does not merely injure, but kills his victim. The purveyors of defective vehicles, exploding products, botulinous food, contaminated blood transfusions, and leaking gas heaters would be given every incentive, if they did not dispatch their victims right away, to hope for a delayed result as the latter lie injured in the hospital with large potential claims. The death of these citizens injured by defective products would free those responsible from any liability whatever. Such a situation existed in Alabama many years ago before our legislature passed wrongful death acts. Its revival within the boundaries of our modern Commercial Code would be intolerable.
I construe "wrongful act, omission or negligence" in our wrongful death statutes as inclusive of breach of warranty. Greco v. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 115 A.L.R. 1020 (1938); Uppgren v. Executive Aviation Services, 326 F. Supp. 709 (D.Md.1971)
In Greco the plaintiff sued as administrator under the New York Wrongful Death Act which allowed an action to recover for a death caused by a "wrongful act, neglect or default" to recover damages for the death of his wife. Her death was alleged to have resulted from the eating of infected pork sausages purchased from defendant. Plaintiff's suit was based on the theory of implied warranty imposed by statute that the food was fit for human consumption.
The court pointed out that prior to the creation of the action of assumpsit, the remedy for breach of warranty was an action on the case for deceit, and that an action for breach of warranty was still in some respects a tort action. The court declared:
The court concluded as follows:
Returning to the case before us, the complainant cannot recover. She is trapped between the proverbial rock and hard place; the Scylla and Charybdis created by the respective Alabama and Georgia restrictions. Although, as indicated, I believe the complaint states a cause of action in Alabama, plaintiff has no standing to bring the action because the is not one of the parties enumerated in Title 7, §§ 119 and 123 as a proper plaintiff in wrongful death. She is neither the mother nor personal representative of a minor, nor the personal representative of a testator or intestate. Under Georgia law, on the other hand, she has standing (Georgia Code, Title 105, § 1307), but no cause of action under the substantive law of the state, which apparently does not allow recovery for death caused by breach of warranty. Lovett v. Emory University, Inc., 116 Ga.App. 277, 156 S.E.2d 923 (1967); Home v. Armstrong Products Corp., 416 F.2d 1329 (5th Cir. 1969). Therefore the demurrer to the warranty count was properly sustained.
The counts in negligence were barred by the trial judge's application of the Alabama one-year statute of limitations (Title 7, § 26). This ruling appears to be supported by the case authority. Larue v. Kershaw Co., 177 Ala. 441, 59 So. 155 *289 (1912); Mullins v. Alabama Great Southern R. Co., 239 Ala. 608, 195 So. 866 (1940).
For these reasons only I concur in the affirmance of the judgment below.
JONES, Justice (dissenting).
I respectfully dissent. As a preface to a rather strong expression of my views, a word of admonition may be appropriate. Were the reader to interpret the following remarks as criticism of the author or members of the Court constituting the majority in this case, he would commit grievous, even unforgivable, error. If, on the other hand, these remarks were construed as ridiculing our system of common law pleading, I would agree "with every word at my command."
In the waning days of common law pleading in this state, the majority opinion has succeeded in proving the system's ultimate futility and demonstrated irrefutably, it seems to me, the absolute necessity for its long-overdue demise. Look with me, if you will, at the court's application of the rules of common law pleading to the plaintiff's complaint.
It states: first, the Georgia law is not well pleaded. This assertion proceeds on on the premise that she must plead the Georgia wrongful death act for the reason that the Alabama wrongful death act has no extraterritorial effect; second, even if pleaded, the statute of limitations averment should have awaited the replication; third, but if such statute were pleaded by replication, this would be an attempt (here unauthorized) to invoke the procedural law of Georgia and not that of Alabama; fourth, the death, not being brought under the death act of Alabama, our two-year wrongful death statute of limitations cannot apply; and, finally (completing the circle), even if the Georgia statute of limitations could have been pleaded properly, it wasn't; and, consequently, plaintiff is out of court.
Having reached such a pinnacle of hopeless confusion, we can at least take comfort in the knowledge that the burial day for Alabama common law pleading is rapidly approaching. As one last reverent gesture, I propose the following epitaph:
Foolishness aside, look at the result reached by the majority opinion which involves issues beyond mere pleading. A suit is brought in Alabama by an Alabama citizen against Alabama citizens (the foreign corporate defendant having qualified to do business in Alabama) for damages for the death of an Alabama citizen (her son) based on warranty made and breached (allegedly) in Alabama. The only fact connected with this case that occurred outside Alabama is the fact of death in Georgiaan incident of travel, merely.
Under these facts, the court has applied the Alabama omnibus statute of limitations (one year) to bar the action. The one-year statute applied is the only statute of limitations in Alabama or Georgia that has nothing to do with either (1) wrongful death under Georgia law (two years), (2) wrongful death under Alabama law (two years), or (3) breach of warranty under Alabama's Commercial Code (four years).
The thrust of my dissent can be brought into focus by a consideration of the plaintiff's plight. If she went to Georgia to sue, she would not be able to obtain service of process on at least one of the defendants and she would be faced with Georgia's *290 interpretation of their UCC which disallows recovery for death based on breach of warranty.
If, instead, she brought her action in Alabama, she must ride the other horn of the same dilemmaour wrongful death statute is not available because her deceased son just happened to be in Georgia when the breach (allegedly) resulted in his death.
Faced with this imperfect choice, she elected the latter; and our wrongful death act's "non-extraterritorial effect" doctrine caused her to ground her Alabama claim (based on breach of warranty) under the Georgia wrongful death act. Query: Is she by virtue of this fact bound by Georgia's interpretation of Georgia's UCC as it relates to Georgia's wrongful death act? I submit that an affirmative answer to this question produces a strange anomaly. This amounts to saying that we will not give our own death act extraterritorial effect, but where one of our own citizens sues in Alabama on a warranty made and breached in Alabama, and invokes the Georgia wrongful death act to give her standing to pursue her remedy, we will then accord Georgia law extraterritorial effect to test the gravamen of plaintiff's claim; i. e., whether she can maintain a death action in Alabama based on a warranty that was neither made nor breached in Georgia.
The law of Alabama (in this instance, the UCC) became an integral part of the contract (warranty of merchantability); and I fail to see how the law of Georgia can be applied to, or made a part of, the contract since the Georgia law could not have been within the contemplation of the parties at the time the contract was entered into (time of sale). It is too elementary to support with precedents that the rights and obligations of parties are fixed at the time the contract is entered into. As stated in Goodrich on Conflicts at page 222, the rule is:
By what stretch of the imagination could it be supposed that the law of Georgia had anything to do with the warranty agreement in this case?
To illustrate the utter absurdity of the legal fiction of our "non-extraterritorial effect" doctine, suppose the plaintiff's son in the case was returning to his military station at Fort Benning, and while crossing the Chattahoochee River Bridge, the steering mechanism of his new car became disengaged and his car plunged into the river, and it was determined that he died by drowning after his body was discovered 20 miles downstream. Plaintiff's rights (not her right of recovery, mind you, but her right to maintain the suit under Alabama law) would hinge upon a determination of whether her son's death occurred to the east or to the west of the center line of the channel of the river.
There are only two ways to deal with such a legal fiction: (1) abolish it, and establish in its stead a rule of reality and reason, or (2) create a counter fiction to avoid the harsh result of the first one.
I prefer the former, but in this instance I would indulge the latter since the plaintiff was not given the option to pursue her remedy under our wrongful death act in view of this court's prior adoption of the "non-extraterritorial effect" doctrine. Having indulged the plaintiff's right to invoke the Georgia wrongful death act, I would promptly limit its application to provide the remedy merely, i.e., give her a standing to sue for the death of her son.
I would then follow the lead of a series of cases reported and annotated in 95 A.L. R. beginning at page 1162, particularly the reported case of Marshall v. Geo. M. Brewster & Son, 37 N.J. 176, 180 A.2d 129, 95 A.L.R.2d 1153, which held that where *291 the highest court of the situs (Pennsylvania) had determined that its own built-in statute of limitations was strictly procedural, the law of the forum for comparable action (wrongful death) will be looked to in testing the time within which the suit is to be brought. The New Jersey Supreme Court had no difficulty in rejecting the argument, made here by appellees, that where the suit is not brought under the wrongful death act of the forum, then the period of limitation, as prescribed by that act, has no application.
Citing cases from New York and Texas to the same effect, the holding of the New Jersey Supreme Court is summarized in 22 Am.Jur.2d, §§ 282, 803, as follows:
I would further hold that the gravamen of the plaintiff's action (wrongful death based on breach of warranty) is not controlled by the law of Georgia; but instead, we should look to our own substantive law. In order to avoid repetition, I adopt the concurring opinion of Mr. Justice Faulkner on this point (allowing recovery for breach of warranty) and add the comment: "Right as rainsound as hickory."
I submit that the issue in this case ought to be: Did the buyer (plaintiff's son) die as the result of a breach of warranty on the part of the manufacturer and/or seller? The method (procedure) of raising and presenting this issue is important, and indeed, an indispensable part of the system; but procedure should serve as the handmaid of justice, not as a barrier to that end.
The old adage"You can't win for losing"may apply in gambling halls and race tracks, but should never be given a field of operation in the halls of justice. More apt is the maxim: "Where there is a wrong, there is a remedy."
I would hold that the trial judge erred in sustaining the defendants' demurrer to the warranty count. | February 22, 1973 |
6523fb08-64ac-4047-8518-c027bd52eb48 | Alabama Pub. Serv. Com'n v. Cooper Transfer Co., Inc. | 326 So. 2d 283 | N/A | Alabama | Alabama Supreme Court | 326 So. 2d 283 (1975)
ALABAMA PUBLIC SERVICE COMMISSION et al.
v.
COOPER TRANSFER COMPANY, INC., a corporation, et al.
SC 1173.
Supreme Court of Alabama.
December 18, 1975.
Rehearing Denied February 5, 1976.
Carl L. Evans, Montgomery, for Alabama Public Service Commission.
Charles A. Powell, III, Birmingham, for Baggett Transportation Co.
Maurice F. Bishop and Gerald D. Colvin, Jr., Birmingham, for Floyd & Beasley Transfer Co., Inc., Bowman Transportation, Inc., Georgia-Florida-Alabama Transportation Co., Hiller Truck Lines, Inc.,
*284 North Alabama Express, Inc. and Bee-Line Express.
R. S. Richard, Montgomery, for Ross Neely Express, Inc., Birmingham-Nashville Express, Inc., and Hornady Bros. Truck Line.
Samuel Kaufman, Montgomery, for Trustee of A-OK Motor Lines, Inc.
Euel A. Screws, Jr., Montgomery, for Mason and Dixon Lines, Inc.
Robert C. Black, Montgomery, for Reliable Truck Lines, Inc. and Gordons Transports, Inc.
J. Douglas Harris, Montgomery, for Cooper Transfer Co., Inc.
EMBRY, Justice.
Appeal from judgment of the Circuit Court of Covington County reversing an order of the Alabama Public Service Commission (APSC). That order of APSC denied approval of the transfer of the rights under the intrastate Certificate of Authority of A-OK Motor Lines, Inc., a bankrupt carrier of freight by motor truck. The applicants seeking approval of the transfer of A-OK's authority were the Trustee In Bankruptcy of A-OK Motor Lines, The Mason and Dixon Lines, Inc., Cooper Transfer Company, Inc., Gordons Transports, Inc., and Reliable Truck Lines, Inc. Mason and Dixon sought approval to purchase A-OK's regular route authority. Reliable Cooper and Gordons each sought approval to purchase a portion of A-OK's irregular route authority.
The applications for approval of the sale of A-OK's authority were protested by eleven carriers: Ross Nelly Express, Inc., Birmingham-Nashville Express, Inc., Central Motor Express, Hornady Brothers Truck Line, Floyd & Beasley Transfer Co., Inc., Bowman Transportation, Inc., Georgia-Florida-Alabama Transportation Co., Inc., Hiller Truck Lines, Inc., North Alabama Express, Inc., Bee Line Express, and Baggett Transportation Company.
Following a consolidated hearing, APSC denied approval of the transfer applications as not consistent with the public interest. See Code of Ala., Tit. 48, § 301(15). The applicants perfected an appeal to the Circuit Court of Covington County. That court found that APSC erred to the prejudice of applicants' substantial rights in its application of law to the facts and the findings of APSC were not based on substantial evidence. Accordingly, the court entered its judgment setting aside the order of the Commission and remanding the case to APSC with directions that the Commission grant approval of the applications for sale and transfer of A-OK's authority. The court further ordered that costs be taxed against the protestants. We reverse and remand with directions.
The following definitions may be helpful:
ROUTE: Particular road or highway, or series of roads or highways, over which a carrier is authorized by APSC to operate its vehicles between terminal points.
REGULAR ROUTE AUTHORITY: Authority to carry goods in a scheduled operation over a restricted and defined route.
IRREGULAR ROUTE AUTHORITY: Authority to carry goods in an unscheduled operation within a restricted territory but wholly unrestricted as to route. Carriage under radial authority means carriage to or from a base point to or from any point in the restricted territory. Non radial authority means carriage from or to any point in the restricted area without reference to the base point.
TACKING: Operation by a carrier between two or more of its regular routes or between irregular and regular routes in order to reach a point which could not legally *285 be served by operation over any single irregular or regular route or combination of regular routes. It is the joinder of separate grants of authority at a point common to both.
POINTS: Those locations a carrier is authorized to carry goods to or from.
AUTHORITY: The grant of rights to carry goods between points or within a restricted area.
The facts: During 1969 A-OK began experiencing severe financial difficulty with a resultant decline in the quality of service. On 17 November 1970, A-OK was declared bankrupt. The Trustee In Bankruptcy did not continue A-OK's operations as a carrier. After marshalling the assets of A-OK, the Trustee determined that its most valuable asset was the certificate of authority for regular and irregular intrastate routes in Alabama. The Trustee invited bids from interested carriers to purchase A-OK's certificate. The Trustee selected a group of the highest bidders and entered into further negotiations with them. The result of these negotiations were separate contracts with the four applicants to purchase the rights of A-OK under its certificate as described before. The contracts were conditioned upon APSC approval of the sale.
The pertinent portion of the APSC's order which denied approval is as follows:
"A-OK ceased operations contemporaneously with its bankruptcy and, while he may have had the authority to continue or re-open operations under the A-OK certificate, the Trustee in Bankruptcy did not do so. Thus, at the time of the hearing, there had been no service rendered under the A-OK authority in over 16 months and it is now almost two years that the rights sought to be transferred have been inactive. There was also evidence to the effect that from 1969 to actual bankruptcy that the operations of A-OK were declining and at times were sporadic.
"While the applicants sponsored several shipper witnesses, it is abundantly clear from the record before us, and we find as a fact that during this extended hiatus in operations, the protestants have successfully filled the void created by the demise of A-OK. For example, the protestant Hornady Brothers, subsequent to the A-OK bankruptcy, came before this Commission seeking to obtain authority to operate between several points formerly served by A-OK. That application was not opposed by the Trustee in Bankruptcy for A-OK, and the evidence presented to this Commission in that proceeding showed that the public convenience and necessity required the granting of the authority sought by protestant Hornady (see Certificate No. 647). If these sales and transfers are approved as sought, from the evidence it appears that the protestant Hornady Brothers could be put out of business. As another example, we note that one of the witnesses offered by the applicants, Roy Nelson, President of Towns Express, testified that his small cartage operation would be destroyed by the introduction of the applicant Gordons into the area which he services whereas he could compete successfully with A-OK. Not only has the void been filled, it is crystal clear, and we find as a fact, that the various protestants are rendering prompt, efficient service to that portion of the shipping public formerly served by A-OK. The record further establishes that the quality of service now being rendered in the areas formerly served by A-OK is better than that provided by A-OK in the last year of its existence. While several of the witnesses sponsored by the applicants indicated that they would like to have an additional carrier available to them, none of them were without reasonable service. Thus, if this were a case of determining whether to initially grant a new authority there would be no question but that it should be denied. We are, however, dealing with a transfer case governed by Section 301(15) and our determination therefore must be on the basis of whether *286 the transfer is `consistent with the public interest.'
"It can be argued that we could, on the basis of substantial authorities, find that these rights are dormant and not available for transfer in any event. We are mindful of the large number of creditors who would be adversely affected by such a ruling. If these rights are again offered for sale in a form consistent with the spirit of this order and the public interest, and if such sales are approved by this Commission, a substantial sum would thereby be realized by the creditors of A-OK from such sale. A number of the major protestants stated, on the record, that they would not object to the transfer of all of the A-OK authorities to one purchaser, or to the transfer of the A-OK irregular route authorities to one transferee and its regular route authorities to another. It is to be noted that the Trustee in Bankruptcy testified that the authorities sought to be transferred could be transferred as suggested by some of the protestants at a minimal differential to the creditors. While we are neither unmindful nor unsympathetic with the expressed interest of the Trustee to maximize the return to the creditors, we are, in this proceeding, charged with the duty of protecting the interests of the public, including the continuing shipping needs of these creditors, the carriers now serving them and the public at large.
"There are a number of reasons why we find the proposed transfers would not be consistent with the public interest, but chief among them is the fact that the transfers as proposed, if approved, would result in four distinct new operations replacing one arguably dormant operation with the injection of four vigorously competitive carriers into markets adequately served by protestants.
"The record establishes, and we so find, that when the proposed division of this authority is considered in conjunction with the authorities presently held by the applicants, and the tacking that would be possible, we are not being asked to approve the revival of the A-OK's rights but to approve a major readjustment of the transportation industry of Alabama. Based on the record before us, we find that the applicants have failed to establish that it is in the public interest to approve the transfers as proposed. These applications have been presented as a `package' and as we understand the applications, we must approve or disapprove of the transfers as a group.
"The record is clear, and we find that the granting of the applications would tend to seriously impair the ability of the carriers presently serving the former A-OK areas to continue to render satisfactory service. The exhibits and testimony offered by protestants, and the testimony elicited on cross-examination of some carrier witnesses discloses that while the intrastate traffic here involved is not the primary concern to the applicants the probably (sic) diversion of a portion of that traffic would be detrimental to the protestants and in turn the public interest in a sound transportation system. This is not to say that we would deny or approve the transfer of these rights in toto to a single applicant, but that case is not before us. Taking into consideration the full import of splitting this certificate into four certificates and the duplication of authorities and points that would result from the granting of the transfers as proposed, we are compelled to find that the applications are due to be denied as not being consistent with the public interest."
The issues for decision are: (1) Were the applications a "package deal" which APSC had to accept or reject in its entirety? (2) Were the findings of fact in the order of APSC contrary to the substantial weight of the evidence, or did APSC err to the prejudice of the applicants' substantial rights in its application of law to the facts.
*287 Before turning to the issues, we note that our standards for review of an order of the APSC are well settled. See State v. Alabama Public Service Commission, 293 Ala. 533, 307 So. 2d 521 (1975), and cases cited therein. Succintly stated, those standards are: an order of APSC is reviewed with a presumption that it is prima facie just and reasonable; will not be overturned unless based upon
Presumptions are indulged in favor of the orders of APSC because the legislature has committed to APSC matters of vast public interest requiring its special administrative expertise. See Fraternal Order of Police, Strawberry Lodge # 40 v. Entrekin, 294 Ala. 201, 314 So. 2d 663 (1975). Therefore we review the Commission's order as though it had been appealed directly to this court, and do not review the judgment of the Circuit Court with any presumption of correctness. Alabama Gas Corporation v. Wallace, 293 Ala. 594, 308 So. 2d 674 (1975). We are fully committed to the propositions that the courts of this State must not substitute their own judgments or findings of fact for the judgment of the Commission.
The Commission found that the applications were presented as a "package" which it had to either approve or disapprove in its entirety.
The contentions of the various parties to this litigation are found in six briefs and three appendices to one of those briefs, containing an aggregate of three hundred pages. Much of the argument of each of the parties litigant is misdirected from the key issue which, simply stated, is: was there "substantial" evidence when considered most favorable to upholding the Order of APSC tends to support the action of APSC reflected in that Order?
All applicants contend the Commission should have considered each of their applications separately. Applicants point out that each sought approval to purchase parts of the rights under the Certificate Of Authority of A-OK based on a separate contract made with the Trustee In Bankruptcy. Applicants also note that each application was treated separately although consolidated for hearing.
In separate brief applicant Mason and Dixon contends the Commission should have given completely separate consideration to its application and approved same because: (1) Mason and Dixon sought to purchase all of A-OK's regular route authority, (2) The Commission order expressly stated it would approve transfer of the regular route authority to one carrier, (3) Protestants admitted they would not protest transfer of the regular route authority to one carrier.
The Order of the Commission is supported by substantial evidence in the record. The record has been carefully examined. It consists of 2,109 pages, in 12 volumes, having a weight of 59 pounds avoirdupois. It shows the four separate contracts were the result of a single negotiation with the Trustee In Bankruptcy of A-OK. The Trustee's testimony indicates the decision to contract with the four carriers was arrived at only after he considered the total effect of the four contracts on the Alabama Transportation Industry. The record also shows the Trustee entered into those contracts based on his view that the agreed division of A-OK's rights would be acceptable to APSC. Moreover, while the Commission indicated it would approve transfer of the regular route authority to one carrier, it did not indicate it would approve transfer of such authority to Mason and Dixon. There was no prejudice to Mason and Dixon nor any other *288 applicant. Reversible error cannot be predicated upon the Commission's judgment to consider the applications as a "package."
Applicants argue the Commission's decision finding the proposed transfer of authority not to be in the public interest is not supported by the substantial weight of the evidence. Applicants contend the record shows only that protestants fear new competition and possible diversion of intrastate traffic. This fear, applicants assert, is legally insufficient to support a finding that approval of the applications is not in the public interest. See Alabama Public Service Commission v. Chem-Haulers, Inc., 293 Ala. 677, 309 So. 2d 453 (1975). Applicants further note that although the public interest test includes consideration of the effect of new competition on existing carriers, nevertheless the record here conclusively demonstrates that any competitive effect that might result from approval of the applications is so negligible that no protestant could be harmed.
These arguments take a very narrow view of a multifaceted Commission order. That order affirmatively shows that disapproval of the applications was not based solely on findings of diversion or competitive effect. The Commission found that approval of the applications would result in a major restructuring of Alabama's Transportation Industry. This finding was based on considerations of diversion, competitive effect, and an implicit factor; dividing A-OK's authority under its certificate in the manner requested would result in applicant carriers being allowed to dramatically increase the areas those carriers could serve directly or indirectly. There is substantial evidence in the record of the proceedings before the Commission which supports the finding that such a restructuring would occur. The Commission's order indicates that various factors, including creditors' interests, Floyd & Beasley Transfer Co., Inc. v. Alabama Public Service Commission, 276 Ala. 130, 159 So. 2d 833 (1963), entered into its judgment that the proposed transfers would not be in the public interest. On this record we cannot say the decision of the Commission is not supported by substantial evidence or that the Commission erred to the prejudice of the applicants' substantial rights when it decided the proposed transfers would not be in the public interest.
The judgment of the Circuit Court of Covington County is reversed. We remand with directions that an order affirming the order of the Alabama Public Service Commission and allowing costs to protestants be entered.
Reversed and remanded with directions.
BLOODWORTH, MADDOX, FAULKNER and ALMON, JJ., concur. | December 18, 1975 |
9fd37a52-e0ba-4809-a933-8d5ec92deb22 | Alabama Power Company v. Cleckler | 323 So. 2d 344 | N/A | Alabama | Alabama Supreme Court | 323 So. 2d 344 (1975)
ALABAMA POWER COMPANY, a corporation, and Norbert Wayne Swann
v.
Willie T. CLECKLER.
SC 1113.
Supreme Court of Alabama.
December 4, 1975.
*345 C. William Gladden, Jr., Birmingham, for appellant.
Walter C. Hayden, Jr., Clanton, for appellee.
MADDOX, Justice.
The only issue presented on this appeal involves the irregularity of a jury verdict.
When the jury foreman announced the verdict to the court, in this negligence action, he stated it as "$45,000." On the verdict form, however, the amount was shown as "$4,500."
The jury concluded its deliberations at 9:50 a.m., when the foreman read the verdict as $45,000. The jury was requested to remain in the courtroom so they could be qualified in another case. One member was excused for the remainder of the day. The trial judge discovered, within twenty minutes, the inconsistency between the verdict as read by the foreman and the verdict as written. He reassembled the jury, including the one member who had gone home, and explained the inconsistency and asked the jury to return to the jury room, and "correct your verdict." The jury stayed in the jury room approximately three minutes and returned the following verdict:
As is apparent, the foreman wrote "void" over the "$4,500" sum and initialed it, and entered "$45,000" and initialed that.
The trial judge entered a judgment upon the jury verdict for $45,000.
The Power Company argues:
1. There was a discharge of the jury prior to the activity in court leading to the entry of judgment.
*346 2. The judgment(s) of the court were based upon the second deliberation of the jury.
3. There was no acceptance by the court of the oral declaration of the jury as a verdict.
4. The court had no further authority to reassemble the jury and allow its redeliberation upon having noted the disparity between the announcement and the written verdict.
5. The court did not attempt to correct or amend the original verdict of the jury, but apparently rejected the first finding and announcement by the jury entirely and ordered a redeliberation of the case by the jury.
This case is one of first impression, on the exact point involved.
We could discuss at length, whether the oral verdict was true, whether the jury was discharged and therefore could not be reassembled, and other points regarding jury verdicts, but we consider it unnecessary to do so. It is obvious from what transpired in this case that the $4,500 sum entered on the written verdict was a clerical error. Rule 60(a), ARCP, provides:
The verdict can be either written or oral. St. Clair v. Caldwell & Riddle, 72 Ala. 527 (1882). It can be general or special. Rule 49, ARCP.
It is abundantly clear that the general verdict of the jury in this case was in favor of the plaintiff and for the sum of $45,000. Consequently, the lower court did not err. Cf. Alexiou v. Christu, 285 Ala. 346, 232 So. 2d 595 (1970).
Affirmed.
HEFLIN, C.J., and MERRILL, JONES and SHORES, JJ., concur. | December 4, 1975 |
49f8443d-9ea0-4cad-82fc-1c503012559f | McCord v. Stephens | 325 So. 2d 155 | N/A | Alabama | Alabama Supreme Court | 325 So. 2d 155 (1975)
Jessie Louise McCORD
v.
Dennis E. STEPHENS, as Administrator, etc., et al.
SC 1213.
Supreme Court of Alabama.
December 18, 1975.
Jesse W. Shotts, Birmingham, for appellant.
*156 Rogers, Howard, Redden & Mills, Birmingham, for appellees.
FAULKNER, Justice.
This is an appeal from an order of the Circuit Court of Jefferson County, denying Jessie Louise McCord's petition for removing Dennis E. Stephens as administrator of the estate of Walter Woodrow McCord. We affirm.
No transcript of the evidence having been filed, we consider only the transcript of the record proper, showing the petition, its amendment, and the court's order.
Walter Woodrow McCord died on October 14, 1973, and Dennis Stephens was appointed administrator of the estate on October 29.
The thrust of the petition is that, when letters of administration were issued to Stephens, appointing him administrator, Jessie McCord, the widow, with first priority, was under an incapacity to serve because she faced criminal charges. She was acquitted on December 19, 1974, and now she says she is competent to assume her priority. She prays for the removal of Stephens, and her appointment.
Section 81, Title 61 Code of Alabama, gives the husband or widow first priority to serve as administrator of an intestate estate. But, under § 83, Title 61, this priority must be claimed by applying for letters of administration within 40 days after the death of the intestate. By her failure to apply within the 40-day period after the death of the intestate, Ms. McCord waived her preferential right to be issued letters of administration. Stanley v. Stanley, 202 Ala. 661, 81 So. 617 (1919); Gilmore v. Roberson, 273 Ala. 230, 139 So. 2d 604 (1962).
The petition for removal does not allege Stephens is unfit or disqualified. This court said in Starlin v. Love, 237 Ala. 38, 185 So. 380 (1938):
Ms. McCord challenges the constitutionality of § 84, Title 61, Code of Alabama, by her amended petition on the ground "men are to be preferred to women." Section § 84 provides:
To question the constitutionality of a statute, a person must have some right specifically affected by it. Smith v. Potts, 293 Ala. 419, 304 So. 2d 578 (1974).
There is no contest here between two persons as to who is the more suitable to be appointed administrator. Ms. Mc-Cord, by having waived her preferential right to be appointed, has no standing to raise the constitutionality of the statute.
Affirmed.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | December 18, 1975 |
6d889e62-62fd-4f70-9c3f-901df29fcce3 | Wolfe v. Isbell | 280 So. 2d 758 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 758 (1973)
Charles A. WOLFE, who sues as father of Deceased Polly Jane Wolfe
v.
Linda Sue ISBELL et al.
SC 200.
Supreme Court of Alabama.
July 12, 1973.
Roscoe B. Hogan, Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellees.
*759 McCALL, Justice.
The defendants appellees have moved this court to strike appellant's brief or for affirmance of the case or for dismissal of the appeal. They assign as grounds that the brief of the appellant contains no Statement of the Case as required by Supreme Court Rule 9 and that the Statement of Facts is merely argument and does not specifically refer to any one ground of demurrer as being erroneously sustained.
This appeal is taken because of the adverse ruling on a demurrer to the complaint. While we cannot approve of the omissions made in the brief, the sole issue is so clearly formulated, we have no difficulty in readily understanding the point involved from the brief. This court has properly held that it will give a liberal application to its Rules and will condone noncompliance when the record is short and simple, and when compliance with the cited rules is not essential to an understanding of the argument. Kendall Alabama Company v. City of Fort Payne, 262 Ala. 465, 79 So. 2d 801; McMillan v. Fabretta, 231 Ala. 188, 163 So. 793; Brothers v. Brothers, 208 Ala. 258, 94 So. 175; City of Montgomery v. Mott, 266 Ala. 422, 96 So. 2d 766. The motion is denied.
In this case the father sues to recover damages for the death of his minor child allegedly caused by the wrongful act, omission, or negligence of the defendants. From an adverse ruling on the defendants' demurrer to the single count complaint, the plaintiff took a nonsuit and now appeals.
We are concerned with the sole question of whether or not a tort action can be maintained by the father to recover damages for the wrongful death of his minor child, resulting from prenatal injuries, negligently inflicted while a nonviable fetus, if the injured child is subsequently born alive. By nonviable we mean not capable of living, growing, or developing and functioning successfully, the antithesis of viable, which is defined as having attained such form and development of organs as to be normally capable of living outside the uterus. See Webster's Third New International Dictionary. At the outset all must realize that possessing a good cause of action and pleading it is one consideration, while the problem of proof of the allegations is an entirely separate and distinct consideration. Here, only the former consideration invokes our attention.
The gravamen of the plaintiff's complaint is that, on to-wit, March 10, 1970, the defendants so negligently operated a truck as to negligently cause or negligently allow it to back into or collide with an automobile, on a public street in Pell City, Alabama, in which the plaintiff's wife was seated, she being then pregnant with the plaintiff's unborn child, and as a proximate consequence thereof, the said minor child, being then carried as an unborn child by his wife, suffered grievous prenatal injuries and prenatal damages from which she subsequently died on to-wit, June 16, 1970, approximately fifty minutes after being born alive on said date and occasion.
There are fifteen grounds of demurrer assigned, separately and severally, by the defendants to this court. The gist of the grounds of demurrer is that it affirmatively appears from the averments of the count or complaint that the plaintiff's unborn child was not a minor child at the time of the alleged negligence so as to give the plaintiff a cause of action on account of the alleged injuries negligently inflicted upon her, resulting in her death after being born alive.
While we approached the question here involved in Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596, a decision of the issue was never reached because there we were dealing with a viable child. But in Huskey, we overruled our former case of Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566 (1926), which stood as authority for the proposition that a prenatal injury afforded no basis for an action *760 in damages in favor either of the child or its personal representative, and we recognized the right to recover for the wrongful death of a viable child because it existed separate and apart from the mother, but within her body. Furthermore, we said: "[T]o give further force to Stanford would give protection to an alleged tort-feasor." We had previously held in Stanford, supra, that a fetal child was a part of the mother and was not a "person" until it was born. See also Dietrich v. Northhampton, 138 Mass. 14, 52 Am.Rep. 242, and Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, both of which have essentially been overruled. We said in Huskey, supra, that this holding in Stanford was based upon an incorrect statement of medical fact. We held in Huskey that where the mother was seven and one-half months pregnant, and five days after the accidental injury, the child was born alive, but died five days after birth, it was error to deny a parent or legal representative the right to proceed in a wrongful death action. Thus the theory of the right to recover in Huskey was that the child was not a part of the mother contra to Stanford. We left undecided the question of whether a previable child, who was subsequently born alive, was a part of the mother. In a footnote to Huskey, we also pointed out that it was not necessary to decide in that cause whether an action for personal injury or wrongful death would exist, if inflicted before the fetus became viable.
The defendants differentiate the instant case from that of Huskey, where there was a viable fetus, on the ground that here, construing the complaint more strongly against the pleader, we are to assume, for testing the complaint only, a negligent injury to a nonviable fetus for which the defendants contend that there can be no recovery for damages by the father on account of wrongful death, although the child is born alive. Thus the defendants contend that the right of action for prenatal injuries, if any, is limited to children, born alive, who, at the time of the injury, were alive and capable of being delivered and of remaining alive separate from their mothers. Apparently the defendants' defense is that they owed no duty to the nonviable fetus as a minor child under the statute, Tit. 7, § 119, Code of Alabama, 1940. On this subject, Prosser in his Law of Torts, 4th Ed., p. 336, says: "So far as duty is concerned, if existence at the time is necessary, medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law." Citing Herzog, Medical Jurisprudence, 1931, §§ 860-975; Malloy, Legal Anatomy and Surgery, 1930, 669-687. And Prosser adds: "All writers who have discussed the problem have joined in condemning the old rule [that the defendant could owe no duty of conduct to a person who was not in existence at the time of the action], in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother, and in urging that recovery should be allowed upon proper proof."
Generally speaking, it is essential to the maintenance of an action for death by wrongful act or default that the act or default be of such character as would have supported an action by the deceased for his injuries if he had survived. If the deceased never had a cause of action, none accrues under a wrongful death statute. Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133; Harris v. A. J. Spencer Lumber Co., 185 Ala. 648, 64 So. 557; Lovell v. DeBardelaben Coal and Iron Co., 90 Ala. 13, 7 So. 756. On this point it is stated in Harris v. McNamara, 97 Ala. 181, 183, 12 So. 103, 104, as follows:
It follows that the right to maintain an action for the wrongful death of an unborn child depends on the right of the particular child, if he had survived, to maintain an action for injuries sustained.
The plaintiff's position is that it makes no difference, in deciding the right to a cause of action for wrongful death, whether the fetal child was viable or not when the injury was inflicted, if the child was subsequently born alive but died from the injury. Under the pleadings it appears that, whether viable or nonviable, had it not been for the wrongful prenatal injury, the fetal child would have sustained life. The fact appears from the complaint that the child was born alive and shortly thereafter died because of the prenatal injury. In other words, under the allegations of the complaint, life would have been sustained but for the negligence of the defendants that proximately caused the injury from which the child subsequently died after being born alive.
While the decisions dealing with the problem before us are certainly not without divergent views, the more recent authorities emphasize that there is no valid medical basis for a distinction based on viability, especially where the child has been born alive. These proceed on the premise that the fetus is just as much an independent being prior to viability as it is afterwards, and that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother.
Though unnecessary to a decision in Puhl v. Milwaukee Auto Ins. Co., 8 Wis.2d 343, 99 N.W.2d 163 (1959), the court pointed out that the viability theory, permitting actions for injuries to viable unborn children, but not to nonviable children has been challenged as unrealistic in that it draws an arbitrary line between viability and nonviability, and fails to recognize the biological fact that there is a living human being before viability. The court said in that case that a child is no more a part of its mother before it becomes viable that it is after viability, and that it would be more accurate to say that the fetus from conception lived within its mother rather than as a part of her.
And, we quote Prosser, 4th Ed. (1971), p. 337 on the subject:
Originally the view of the Restatement of Torts was consistent with the early opinions on this matter holding that "a person who negligently causes harm to an unborn child is not liable to such child for the harm." Id., § 869 (1938). However, this view has apparently been changed to reflect what we have recognized as the judicial trend toward allowing recovery for prenatal injuries. In its more recent opinion the American Law Institute has rejected the viability criteria and opted merely *762 for the requirement of live birth as the basis of the cause of action. See Restatement (Second) of Torts, § 869, p. 174-182 (Tent.Draft No. 16, 1970). The section as adopted at the 47th Annual Meeting of the ALI is as follows:
The Supreme Court of Georgia said in Hornbuckle v. Plantation Pipe Line Company, 212 Ga. 504, 93 S.E.2d 727:
In Hornbuckle, supra, Georgia followed Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S.2d 696, which held that where a child is born after a tortious injury sustained at any period after conception, he has a cause of action, the court saying:
The Supreme Court of Canada in Montreal Tramways v. Leveille [1933] S.C.R. 456, 4 D.L.R. 337 in allowing recovery for prenatal injuries based its decision on the general prenatal rights of an injured person and not upon whether the injury had occurred after the biological point of viability had been reached.
The opinion of the New Hampshire Supreme Court in Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108, 110 follows much of the reasoning in the Hornbuckle case supra. In Bennett the court said:
In Smith v. Brennan, 31 N.J. 353, 157 A.2d 497, the court held that the distinction based on viability has no real justification and has no place in the determination of the question of liability for wrongful conduct. The court said:
* * * * * *
On the question of the viability distinction, the Supreme Court of Pennsylvania in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93, said:
We see no sound reason why the same rule of law in prenatal injury cases, permitting the minor child to recover, should not also apply in actions brought by the father under Tit. 7, § 119, Code of Alabama, 1940, because this statute affords the father the same right of action, in cases where death ensues, as the child would have had, if it had survived.
In Torigian v. Watertown News Co., Inc., 352 Mass. 446, 225 N.E.2d 926, the court said:
The Rhode Island case of Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966), involved a personal injury issue but expressly rejected the viability test as a condition of recovery. The court in Sylvia however overruled its earlier decision in Gorman v. Budlong, 23 R.I. 169, 49 A. 704 (1901), which had disallowed a suit for wrongful death caused by prenatal injury. And in LaBlue v. Specker, 358 Mich. 558, 100 N.W.2d 445 (1960), viability was rejected as a condition precedent to recovery by a child for the wrongful death of its father. Even though the child was not born at the time of the death of the father it was held to be a "person" or "child" for purposes of suit.
There are other instances of long standing in our law where an unborn child is treated as one "in being" even from conception. Tit. 47, § 20, Code of Alabama, 1940 (Recomp.1958) provides for legal recognition of posthumous children in the taking of future estates in lands. Accordingly *764 the predecessor section in the 1923 Code, § 6906, was construed in Barnett v. Pinkston, 238 Ala. 327, 191 So. 371 (1939) to hold that a child born alive two to three months after the death of its father was "regarded in law as a living child at the death of the father." This court said further that "a child en ventre sa mere shall be considered in esse for most purposes of property." Barnett, 238 Ala. at 331, 191 So. at 374. In Barnett, supra, it was recognized that a child en ventre sa mere has the capacity to inherit property. No requirement was set forth that the child be viable before possessing such capacity; it merely was enough that the child was born alive. A subsequent article encompassing matters relating to that case has defined posthumous children as in Barnett and in the Code as "a child conceived but not born at the time of the testator's death." Holt, Intestate Succession in Alabama, 23 Ala.L. Rev. 319, 323 (1971). In Pearson v. Carlton, 18 S.C. 47 (1882), it was said that the doctrine that "posthumous children inherit in the same manner as if they had been born in the lifetime of their father, and were surviving heirs; * * * is universally adopted in the United States. And this relates back to the conception of the child, if it is born alive." Pearson, 18 S.C. at 55. (Emphasis added). These cases are guiding in that they show certain legal capabilities which relate to the entire time of a child's fetal development.
To say now that a child will be recognized as alive and capable of inheriting, and later taking possession of property when born alive, but not recognized as alive for the purpose of sustaining injuries for which suit might be brought if they wrongfully cause its death is an incongruous result.
We hold, therefore, that sustaining the demurrer to this complaint is not consistent with the more current judicial thought on this subject in this and other jurisdictions. For the reasons set forth the decision of the trial court is to be reversed.
Reversed and remanded.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. | July 12, 1973 |
c60de8eb-3200-456c-afe2-b7263e41b3c9 | Johnson v. State | 324 So. 2d 305 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 305 (1975)
In re Theodore JOHNSON
v.
STATE.
Ex parte Theodore Johnson.
SC 1537.
Supreme Court of Alabama.
December 4, 1975.
Ralph C. Burroughs, Public Defender, and Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for petitioner.
No appearance for the State.
SHORES, Justice.
Petition of Theodore Johnson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Johnson v. State, 56 Ala.App. 582, 324 So. 2d 297, entered after remand, 56 Ala.App. 583, 324 So. 2d 298.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | December 4, 1975 |
ecee8a3a-ed3a-4842-b00d-967f7d7cb318 | Riley v. DePriest | 322 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 713 (1975)
Alta RILEY et al.
v.
James B. DEPRIEST.
SC 1254.
Supreme Court of Alabama.
November 6, 1975.
*714 G. W. Nicholson, Birmingham, for appellants.
Sam L. Reames, Birmingham, for appellee.
BLOODWORTH, Justice.
Plaintiffs appeal from an adverse judgment entered by the court after a directed verdict for defendant.
Plaintiffs sued defendant in a statutory action of ejectment seeking to recover two tracts of land lying in Jefferson County. Defendant filed an answer pleading the general issue, a suggestion of adverse possession, and the "short statute of limitations," Tit. 51, § 295, Code of Alabama 1940.
Plaintiffs are the heirs at law of T. W. and Lizzie Mae Tillerson in whom the paper title was shown. The undisputed testimony for the defendant shows that he purchased the tracts at a tax sale on December 2, 1964, and has paid the taxes on the land since that date. Although he was entitled to demand a deed thereto in December, 1967, it was not until June 3, 1974, that he obtained the tax deed. The two tracts in question lie on either side of defendant's home place. Defendant went into possession under his certificate of sale on December 2, 1964, and claims continuous possession of the tracts since that date. About 1968, he placed a chain link fence around part of the property. He has had it surveyed. During the year 1967, 1968, or 1969, he put a sewage line over part of the property. Defendant has planted a garden and shrubbery on the tracts, cleared brush, and mowed grassy areas. He placed a driveway across part of the property.
At the conclusion of the evidence, the trial judge directed a verdict for the defendant on the authority of Tit. 51, § 295, Code of Alabama 1940.
On this appeal, plaintiffs urge that the trial court erred to a reversal in directing a verdict for defendant. They contend that Tit. 51, § 295 (the so-called "short statute of limitations") does not begin to run until the purchaser is shown to have been in adverse possession and has become entitled to demand a deed to the tracts. Plaintiffs say the issue of adverse possession should have been submitted to the jury.
Defendant contends that the undisputed testimony is that he has been in adverse possession of the tracts since the date of the tax sale. He claims that plaintiffs have paid no taxes and have not offered any evidence of their possession. He thus maintains that there was nothing to submit to the jury and that under Tit. 51, § 295, he was entitled to recover.
Tit. 51, § 295, supra, provides:
Under this statute, our cases have held that three years of continuous adverse possession of the lands by the tax sale purchaser, measured from the date that he becomes entitled to demand a tax deed thereto, will bar an action by the former owner except in those instances mentioned in the statute. (The exceptions are inapplicable here.) Turnham v. Potter, 289 Ala. 685, 271 So. 2d 246 (1972).
The record in this case is devoid of evidence showing that plaintiffs possessed any part of the lands after the tax sale to defendant nor does the record show that plaintiffs have paid any taxes on the tracts.
On the other hand, the evidence is undisputed that defendant (who resided on his home place between the two tracts) went into possession under his certificate of sale in 1964, placed a fence on part of the property, had it surveyed, put a sewage line over part of it, planted a garden and shrubbery, cleared brush, mowed grassy areas, and put a driveway over a portion of the property. Defendant became entitled to demand a deed therefor in 1967 under the provisions of Tit. 51, § 276. Thus, defendant completed three years of continuous, adverse possession in 1970. Plaintiffs did not file suit until June 4, 1974. Consequently, plaintiffs' action was barred by the provisions of Tit. 51, § 295, supra.
Moreover, ejectment is a possessory action. Salter v. Fox, 191 Ala. 34, 67 So. 1006 (1915). In order for plaintiffs to recover, they must show their right to possession at the time suit was instituted. Salter v. Fox, supra.
We hold that, under the evidence and these authorities, there was no reversible error in the granting of a directed verdict for defendant.
Affirmed.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | November 6, 1975 |
ee4c040d-90c3-41df-8e31-e63114aa1c1d | Lloyd Noland Foundation, Inc. v. Harris | 322 So. 2d 709 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 709 (1975)
The LLOYD NOLAND FOUNDATION, INC. d/b/a Lloyd Noland Hospital
v.
Jewel H. HARRIS.
SC 1214.
Supreme Court of Alabama.
November 13, 1975.
*710 William C. Knight, Jr., Birmingham, for appellant.
Paden, Green & Paden, Bessemer, for appellee.
FAULKNER, Justice.
Lloyd Noland Foundation appeals from motions denying a new trial and judgment n.o.v., a jury verdict, and judgment against it for damages of $25,000, awarded to Jewel H. Harris, in a malpractice suit, in the Jefferson County Circuit Court, Bessemer Division.
The principal issues are: (1) Did Mrs. Harris prove her case without expert medical evidence of community standards of skill, care, and diligence. (2) Was it error to permit testimony referring to Lloyd Noland's insurance coverage. (3) Did the trial court err in charging the jury, and (4) were the damages excessive.
Mrs. Harris, a 53-year-old woman, filed a damage suit against Lloyd Noland, for negligently applying a hot plaster cast on *711 her leg. Her claim is based on the following facts.
Mrs. Harris fell while sweeping the back door steps of her home. She was taken to Lloyd Noland's emergency room for X-ray, where a fracture of her left knee was diagnosed. Following X-ray, a splint cast was applied to her leg by a Lloyd Noland technician to immobilize it until treatment of the fracture. While he was applying the cast, Mrs. Harris told him that her leg was burning near the calf. He poured cold water into the cast and the burning eased. Subsequently, the cast was removed, the fracture was treated, and the leg was placed in traction.
On one of her rounds, a nurse observed a wound on Mrs. Harris' leg. The wound, apparently resulting from the plaster burn, became the concern of the nurses, and Mrs. Harris' husband, who discussed it with a staff doctor.
The wound was treated while Mrs. Harris remained at Lloyd Noland, and after her discharge, she received out-patient treatment for it.
Prior to her discharge, a cylinder cast was applied to Mrs. Harris' injured leg by a staff doctor. On one occasion, after returning home, Mrs. Harris noticed a strong odor about the place of the wound. And, when she went back for treatment as an out-patient, she told a staff doctor about the odor. The cast was ventilated and a black, bloody gauze was removed. The wound was cleaned and dressed. At this time, the doctor told Mrs. Harris that she might have to have a skin graft. She objected, and no grafting was done. She has a scar on her leg about 8 X 12 centimeters in size.
Lloyd Noland contends that because of Mrs. Harris' failure to introduce expert medical testimony that it, or its employees, failed to exercise that degree of skill, care, and diligence as other hospitals within the same community would have exercised in like cases, she did not prove a prima facie case.
The testimony of two doctors was introduced by Mrs. Harris. One doctor testified ". . . I don't know what caused this lady's burn. I had never seen this happen before . . ." Another testified, "Well, I would say that the tissue perhaps had some ability [sicshould read disability] or was the result of an injury or as the result of a direct blow, as a result of perhaps some increase in the tissue sensitivity of the local area. There are so many reasons to mention without saying this is it, many ways you can get an area like that." On cross-examination, this doctor said, ". . . I cannot be sure one way or the other. I assume that there are several possibilities. She could have had increased local heat, a scrape or a direct blow, no way of telling for sure."
Mr. Kimbrough, who has been putting on splints for over 18 years testified as an expert for Lloyd Noland and said, "I have never seen it [referring to the cause of the wound on Mrs. Harris' leg] happen before and I couldn't understand how it could have happened." He testified further that he put the splint on Mrs. Harris' leg the same way that he had put splints on thousands of other persons.
In this case, we are of the opinion that no medical evidence of failure to exercise that degree of skill, care and diligence as other hospitals within the same community would have exercised in like cases, is not fatal to Mrs. Harris' case. Ordinarily, in a malpractice case, proof of what is or is not proper practice, treatment, and procedure can be established only by medical evidence. But, in a case where want of skill or lack of care is so apparent so as to be understood by a layman, and requires only common knowledge and experience to understand it, expert evidence is not required. Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969).
*712 Here, no person at the hospital can explain what happened, yet something did happen. It does not require an expert to prove a hot object will burn human skin. Mrs. Harris testified she was burned, and medical personnel at Lloyd Noland testified Mrs. Harris' leg was burned. The application of the cast causing the burn was within the exclusive control of Lloyd Noland, and Mrs. Harris did not contribute to her injury; consequently, there was no need for medical evidence. The case was properly submitted to the jury for its decision. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411 (1929).
Lloyd Noland says the trial court erred by permitting reference to insurance during the direct examination of Mr. Harris as a witness for Mrs. Harris. The error allegedly arises from these questions and answers:
When insurance is injected into a case by irresponsive testimony to a proper question, the prejudicial effect of such evidence may be eradicated by proper instructions from the court. Cannon v. Scarborough, 223 Ala. 674, 137 So. 900 (1931); Clark v. Hudson, 265 Ala. 630, 93 So. 2d 138 (1957).
Here, the court sustained the objection, and told the jurors they could not consider the answer to the question. We are of the opinion the prejudice, if any, was eradicated by the court's admonition not to consider the answer. We note in passing, counsel for Lloyd Noland injected insurance into the case on cross-examination of this witness. It would appear, as counsel for Mrs. Harris says in brief, "What's good for the goose is good for the gander."
Lloyd Noland excepted to that portion of the court's oral charge defining standard of care owed by hospitals to their patients. The court said this:
Generally stated, the degree of care, skill, and diligence, owed by a hospital to its patients, is measured by the care, skill, and diligence used generally by hospitals in the same community. Doctors Hospital of Mobile, Inc. v. Kirksey, 290 Ala. 220, 275 So. 2d 651 (1973). We are of the opinion that the words used by the court in his instruction, informed the jury of the standard care a hospital owes to its patients. The judge's charge was earthy, but the message to the jury is clear. There is no fixed formula for instructions. The instructions should state the law as applied to the evidence of the case. Cf. Thierry v. Oswell, 212 Ala. 418, 102 So. 903 (1925).
We are of the opinion that the jury verdict should not be disturbed by this court. The trial court refused to set aside the verdict, and refused to grant a new trial. He heard the evidence and saw the witnesses. We are unable to find the verdict was the result of passion, prejudice, partiality, or corruption. Louisville & Nashville Railroad Co. v. Gothard, 273 Ala. 424, 142 So. 2d 712 (1962); Central of Georgia Railway Co. v. Phillips, 286 Ala. 365, 240 So. 2d 118 (1970).
Affirmed.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | November 13, 1975 |
b0a170e2-b88f-49d6-8713-9964d0eb7847 | Womble v. Womble | 321 So. 2d 664 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 664 (1975)
In re Judy Norma WOMBLE
v.
Carlos Arthur WOMBLE, Jr.
Ex parte Carlos Arthur Womble, Jr.
SC 1487.
Supreme Court of Alabama.
October 30, 1975.
Robert S. Vance, Birmingham, for petitioner.
Harry B. Cohen, Birmingham, for respondent.
FAULKNER, Justice.
Petition of Carlos Arthur Womble, Jr. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Womble v. Womble, 56 Ala.App. , 318, 321 So. 2d 660.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | October 30, 1975 |
07241075-a33b-4260-8534-0fba48f7f322 | Jones v. State | 322 So. 2d 741 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 741 (1975)
In re Harold JONES
v.
STATE.
Ex parte Harold Jones.
SC 1504.
Supreme Court of Alabama.
November 20, 1975.
Bryce U. Graham, Tuscumbia, for petitioner.
SHORES, Justice.
Petition of Harold Jones for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jones v. State, 56 Ala.App. 444, 322 So. 2d 735.
Writ denied.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur. | November 20, 1975 |
c0f8a64e-0a07-4153-b67a-8001063fbffa | Hunter v. State | 325 So. 2d 921 | N/A | Alabama | Alabama Supreme Court | 325 So. 2d 921 (1975)
In re Robert HUNTER
v.
STATE of Alabama.
Ex parte Robert Hunter.
SC 1397.
Supreme Court of Alabama.
December 4, 1975.
Rehearing Denied January 9, 1976.
*922 Roderick Beddow, Jr., and James M. Fullan, Jr., Birmingham, for petitioner.
William J. Baxley, Atty. Gen., Joseph G. L. Marston III, and Aubrey Ford, Jr., Asst. Attys. Gen., for the State, opposed.
BLOODWORTH, Justice.
This petition for writ of certiorari seeking review and reversal of a Court of Criminal Appeals' decision was granted and submitted after oral argument. The decision below affirmed petitioner's second degree murder conviction.
The basis for review is averred to be a "conflict" between that decision and this Court's decision in Karr v. State, 100 Ala. 4, 14 So. 851 (1893), inter alia. We agree and reverse and remand.
Petitioner was first convicted in 1967 of murder in the second degree. The cause was reversed and remanded by the Court of Criminal Appeals, Hunter v. State, 48 Ala.App. 232, 263 So. 2d 690 (1972). Petitioner was again tried, resulting again in a conviction of second degree murder and again appealed, resulting in an affirmance by the Court of Criminal Appeals. The facts, as contained in the opinion of that court, are as follows:
"Mrs. Wanda Smith Tate, wife of the deceased, Gordon Smith, testified that the killing took place on March 19, 1967, around 9:30 p.m. She had just returned home from church when she was nearly forced off the road by an on-coming car which parked in front of her home as she drove into her carport. She immediately told her husband of the incident, and he drove their car down the driveway to where the other automobile was parked. Mrs. Tate was then telephoning her sister-in-law who lived across the street. She then went down the driveway on foot, heard a voice, not her husband's, cursing loudly, then heard one shot and ran to her wounded husband.
*923 "Mrs. Tate said she observed a person at the scene whom she had never before seen and identified him as the appellant. She said he ran to his automobile, `squeaked the tires and sped off.' Her brother-in-law, Joe Beasley, and a neighbor, Hubert Sims, were at the scene when she reached her husband.
"Dr. Joe W. O' Neal testified as to treating the deceased around 10:30 p.m. on the night in question. He testified that Mr. Smith died during the emergency treatment from a gunshot wound in the neck.
"Joe Beasley testified that his wife was the sister of the deceased and that he was an eyewitness to the shooting. His wife received a telephone call from the wife of the deceased and went outside. He then went out also and went down the driveway to the road where two cars were sitting side by side with a pickup truck parked to the rear of one. Hubert Sims was in the truck. Mr. Smith was standing beside the truck talking to Mr. Sims.
"The witness saw the appellant with a rifle in his hands approach the deceased. The witness said he told the appellant to put the gun up, and the appellant turned the gun on him saying, `You stay out of this you son of a bitch.' He then observed Hunter walk up to the deceased, curse him and job him three or four times with the rifle. He heard the deceased ask Hunter why he had followed his wife home, whereupon the appellant said he had not followed her, that he had come for the man across the street.
"The witness said Hunter then cursed Smith again saying, `I think I'll just shoot you you smart son of a bitch,' whereupon he raised the rifle, aimed at Smith's neck and shot him. Hunter then turned, ran to his car and sped away.
"The witness did not hear Smith curse Hunter. He only heard one shot. His brother-in-law had a pistol in his hand when Hunter shot him with the rifle, but he did not see Smith raise the pistol at any time. The witness took the pistol to his home where he and his wife emptied the chambers. There were six chambers in the.38 caliber pistol, but only five cartridges and none had been fired. He put the pistol and cartridges in a sack, and his wife put them up. He did not tell the police about the pistol, nor give it to them.
"Mrs. Madge Smith Beasley, sister of the deceased, was an eyewitness and saw the appellant shoot her brother. She testified to substantially the same facts as her husband.
"Hubert Sims, a neighbor of the deceased, testified for the defense that as he was starting to work on the night in question, he stopped his pickup truck behind two cars which were blocking the road. Smith, the deceased, came back to his truck with what appeared to be a gun in his hand and said the man in the other car had followed his wife home and that, `he might have to kill him, or was going to kill him, or something like that.' He did not remember the exact words Smith used.
"He said the appellant then got out of his car with a .22 caliber rifle in hand and came back to where Smith was standing by the truck. Three was an exchange of words, Hunter struck the deceased a couple of times with the rifle. He did not hear the deceased ever curse the appellant, nor did he see the deceased raise his pistol. He testified on cross examination that Hunter used words similar to the threat Joe Beasley testified that Hunter made to the deceased. The appellant then stepped back and shot Smith with the rifle. The witness only heard one shot fired.
"The appellant, Robert Lee Hunter, testified in his own behalf. He said he was parked just above the Smith's driveway waiting on a man who lived across the street, when the deceased pulled up in another car and accused the appellant of following *924 his wife home. Hunter denied it and told him it was none of his business what he was doing there as it was a public street. Smith came around his car with a pistol, cursed Hunter, accusing him again of following his wife, and shot into his car.
"The pickup truck then arrived, and the testimony is substantially the same as already set out, except that the appellant claims Smith raised his pistol, thereby causing the appellant to fire his rifle in self-defense.
"The appellant went home, talked to his mother and a Mr. Gray and then drove to the Northport Police Station. His mother left the station in the car, at the request of the police, and returned with the rifle. Police officers searched the car at the station and were unable to find a bullet hole inside that night. The next morning, appellant's mother showed investigating officers a bullet hole in the car. She testified that she did not fire a shot into the car to make the hole. A ballistics expert identified the slug as a .38 caliber, but due to its condition, it was impossible to determine from which gun it was fired."
The opinion states that a threat was made to petitioner-defendant at his automobile and the record reflects that the following transpired, viz:
We may look at the record for a complete understanding of the questions treated when there is no dispute thereon. Life Insurance Co. v. Miller, 292 Ala. 525, 296 So. 2d 900 (1974); Vol. 4 Alabama Digest, Certiorari.
Petitioner contends that, under these facts, the trial court erred to a reversal in refusing the following charge:
In affirming the conviction, the Court of Criminal Appeals concluded that the refusal to give Charge 22 was not error because: (1) it gave "undue emphasis" to that portion of the evidence regarding threats; (2) it was "not supported by the evidence;" (3) it was "misleading;" (4) it was "covered" by the court's oral charge and given Charge 28; and (5) this case is factually "distinguishable" from Karr v. State, supra, in which a similar charge was held to have been properly given on behalf of the state.
At the outset of this discussion, it may be well to state our well-established rule that the only proper purpose for which "threats" by a deceased may be offered, after some testimony has been presented to prove self-defense [Jones v. State, 181 Ala. 63, 61 So. 434 (1913); McCaghren v. State, 52 Ala.App. 509, 294 So. 2d 756, rev'd on other grounds, 292 Ala. 378, 294 So. 2d 766 (1974)], is to show whether the killing was justified because the accused was in apparent and immediate danger to life or grievous bodily harm. Turner v. State, 160 Ala. 40, 49 So. 828 (1909); Beasley v. State, 181 Ala. 28, 61 So. 259 (1913).
As to the conclusion that the refused charge gave "undue emphasis" ["prominence", Vol. 11A Alabama Digest Homicide,], we cannot agree. The charge clearly states a proposition of law in the form of a requested charge, twice held to have been a correct statement of the law and to have been properly given for the state in Karr v. State, 100 Ala. 4, 14 So. 851 (1893); 106 Ala. 1, 17 So. 328 (1894). True, the Karr case, on its facts, is different from the case at bar, but both Karr and the present case involved the question of "prior threats" and their relevance with respect to a plea of self-defense. It would appear that the Court of Criminal Appeals has fallen into the error of attempting to "weigh" the evidencein stating that other witnesses saw no overt act and heard no threat. The question is not what is their, or our, view of the evidence, but simply whether such evidence was presented. It was.
Nor can we agree with the Court of Criminal Appeals that the charge was not supported by the evidence, i.e., "abstract."
The facts in the instant case are somewhat similar to the facts in the hundred-year-old case of Gilliam v. State, 50 Ala. 145 (1874). There, the armed deceased went to the house of the defendant and began a conversation and searched, as if for something stolen, in the presence of defendant's family. Whereupon, he left but called defendant to come out and defendant armed himself and went out, when, being asked by defendant as to why he treated his family so, deceased replied, "Damn you, go to shooting," at this time handling his pistol. Defendant then slew him. The Court held certain instructions dealing with self-defense ought to have been given, reversing the judgment of conviction.
In the instant case, whether defendant acted prudently in taking his rifle and going up to deceased at the pickup is not decisive of his plea of self-defense. The jury might have found, if they believed his testimony, under proper instructions from the court, that his conduct was free from design to harm deceased, and was only for the purpose of asking why deceased shot at him. To sum up on this point, in language paraphrased from Gilliam, supra, viz:
The charge was clearly supported by the evidence.
*926 The charge was not "misleading," having been held proper to give in Karr both times it was before this Court.
The Court of Criminal Appeals wrote that the court's oral charge and given Charge 28 "covered" this Charge 22. Neither does. There is no mention of "threats" in either charge.
Although this case may not be factually the same as Karr, we think that, under the facts of this case, the Karr charge should have been given. The defendant was entitled to have the jury charged on this aspect of his defense since a correct request in writing was made to the trial judge and was not "covered" by the oral charge or other given charges.
The judgment of the Court of Criminal Appeals is reversed.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, JONES and SHORES, JJ., concur.
ALMON and EMBRY, JJ., recused themselves. | December 4, 1975 |
e40e7e97-7d54-48b8-88e3-5035092b1992 | Marshall County Bd. of Edn. v. State Tenure Com'n | 280 So. 2d 114 | N/A | Alabama | Alabama Supreme Court | 280 So. 2d 114 (1973)
In re MARSHALL COUNTY BOARD OF EDUCATION
v.
STATE TENURE COMMISSION for the State of Alabama et al.
Ex parte STATE TENURE COMMISSION for the State of Alabama et al.
SC 109.
Supreme Court of Alabama.
February 8, 1973.
Rehearing denied March 8, 1973.
*115 Lusk & Lusk, Guntersville, for petitioner.
Louis B. Lusk, Sp. Asst. Atty. Gen., for State Tenure Comm.
T. J. Carnes, Albertville, for respondent.
MERRILL, Justice.
Petitioner Baugh seeks a review of the decision of the Court of Civil Appeals, 50 Ala.App. 418, 280 So. 2d 107 on a question of first impression in this state, whether a principal of a high school, hired as such from a neighboring state, can acquire continuing service status as a principal after three successful years in the same system under our teacher tenure statute.
The Tenure Commission held that he could and did, the circuit court concurred, but the Court of Civil Appeals held that he did not.
Arthur Baugh was employed as the chief administrative official of the Albertville High School in 1964 and he served in that capacity until 1970, when the Marshall County Board of Education, hereinafter referred to as the Board, undertook to transfer him from his position as principal to the position of teacher and coach in another high school in the county.
The State Tenure Commission declared the order null and void, the circuit court agreed and the Board appealed to the Court of Civil Appeals. A majority of that court, Presiding Judge Wright dissenting, held that Baugh had never been promoted from an instructor to a principal in the Marshall County system, and since he came into the system as a principal, he could never attain tenure status as a principal because he was not promoted to a principal in the system.
Let us lay at rest one question settled in the opinion under review. We agree with the entire Court of Civil Appeals that although Baugh was not hired under the name of "Principal," still he was in fact every year the principal of the school for *116 the reasons set out in the opinion of the Court of Civil Appeals.
The decision in this case turns on the interpretation of Tit. 52, § 352, Code 1940, as amended. As it originally read, there was no tenure status for a principal or a supervisor other than that of a teacher. Clark v. Beverly, 257 Ala. 484, 59 So. 2d 810. Section 352 was amended in 1951 and again in 1953. The last three sentences were added in 1953, but we are not concerned with them. We copy § 352 as it now appears and emphasize that part added by the 1951 amendment which is pertinent to this decision:
As already noted, the Court of Civil Appeals construed the section literally, and since Baugh had never been an instructor with tenure in the Marshall County system, and had never been promoted to principal in that system, he could never attain tenure as a principal. We do not think the Legislature intended such a narrow construction because we do not think it was intended that the choice of principals would be limited to the in-breeding of instructors in one particular system. A school board would not be very successful in hiring a competent principal from some other system if that principal knew he could never attain tenure as a principal in the new system. We cannot agree that the Legislature intended that one principal, hired as such, though he be successful for twenty years, could not attain a tenure status, when an instructor, who had taught for three years and then was promoted to principal and served successfully for three years, could achieve tenure as a principal so long as it was in the same system. The arbitrariness and the legal discrimination of such a holding is pointed out in Judge Wright's opinion and need not be repeated here.
One of our most quoted and long approved rules of construction, originating in Thompson v. State, 20 Ala. 54, and quoted with approval in State v. Thames, Jackson, Harris Co., 259 Ala. 471, 66 So. 2d 733, follows:
This quote later appeared in State v. Laidlaw, 268 Ala. 92, 105 So. 2d 63 and Rodgers v. Meredith, 274 Ala. 179, 146 So. 2d 308.
We think the Legislature intended in the 1951 amendment that any principal or supervisor could attain continuing service status after three years of successful service in the position in a system, but at the same time, if the principal or supervisor had previously attained continuing service status in that system as an instructor, he or she would not lose the status as an instructor even if he or she were not successful as a principal or supervisor. The Legislature knew, and it is common knowledge, that some of the best teachers make poor administrators and some average teachers have considerable skills in administration.
We, therefore, disagree with the majority opinion of the Court of Civil Appeals in its interpretation of Tit. 52, § 352, Code 1940, as amended, and hold that petitioner Baugh had continuing service status as a principal prior to the time the Board undertook to transfer him to another school.
We come now to the action of the Tenure Commission voiding the action of the Board in transferring Baugh to another school, which action was in effect affirmed by the circuit court.
The Court of Civil Appeals stated in its opinion:
The Commission was in error in declaring the transfer "null and void." Those two words are synonymous and in law mean "a nothing," "of no legal or binding force or validity." Webster's New International Dictionary, 3rd Ed. This was not a proper choice of words. The action was both legal and binding when made by the Board of Education. If, after a hearing before the Board, the teacher does not appeal within fifteen days to the Tenure Commission, "the board's decision shall be final." Tit. 52, § 357, as amended.
If all the procedures required by statute relating to notice, hearing, etc., are carried out (and no one contends they were not in this case), then the action of the Board could not be a nullity of no effect, but a legal and binding adjudication. The only way provided by statute for the transfer of a teacher on continuing service status is "upon the recommendation of the superintendent and the approval of the employing board of education." Tit. 52, § 355, as amended. The transfer by the Board in this case could have been, in the opinion of the Commission, erroneous, or without good cause, or not supported by the evidence, *118 or unjust, but not null and void. If the county governing body, the jury commission or the equalization board had attempted to transfer the teacher, the order of transfer would have been "null and void" because those organizations are without authority to transfer a teacher. But the order of the Board transferring Baugh was not "null and void."
Baugh chose to appeal the Board's order to the Tenure Commission. We know the Tenure Commission disagreed with the Board, and said that the proposed transfer "does in effect change the status and continuing service contract of Arthur Baugh * * *." We have already held in this opinion that Baugh had tenure as a principal but we cannot agree that his "status" as a tenured teacher or that his tenure contract were violated.
Title 52, § 355, Code 1940, as amended, reads:
This court has already construed § 355 in Clark v. Beverly, 257 Ala. 484, 59 So. 2d 810, where it was said:
See also Traweek v. Pittman, 259 Ala. 24, 65 So. 2d 504.
We approve the language quoted supra. If "status" means title, then the word "teacher" as defined in § 351 to include principals is in conflict with the 1951 amendment to § 352 and one of the sections must be held to be of no effect. But each is fully viable and effective under the construction approved in Clark, supra.
There is another reason why this construction should prevail. Federal courts have an increasing propensity to the closing of entire schools in this state without providing for new ones. Each of these closed schools had a principal. But if there is no vacancy, that principal must accept a transfer as an instructor or leave the system. If a transfer from principal to instructor is without "loss of status or violation of contract" then his continuing service status as a principal is unimpaired.
Title 52, § 357, as amended, provides in part that a teacher may appeal the transfer action to the Tenure Commission "to obtain a decision by the commission as to whether such action was in compliance with this chapter and whether such action was taken for political or personal reasons *119 and that such action was not arbitrarily unjust." The Commission did not comply with these statutory requirements. We have pointed out that their decision was erroneous, as were the reasons given therefor. We adopt what we say in S.C. 110, 291 Ala. 281, 280 So. 2d 130, a companion case this day decided, as to the necessity for the Tenure Commission to state reasons in their decision when they reverse the action of a board of education. If they affirm, then a reason that "the evidence sustained the action of the board and said action was not arbitrarily unjust" is sufficient.
Summarizing, we hold that the action of the Board in transferring Principal Baugh to another school in the system as an instructor was not "null and void"; that the transfer is allowed under Tit. 52, § 355 as amended, provided the "transfer shall be without loss of status or violation of contract"; that the "status" applies to continuing service status and basic salary and not to the same position in another school, Clark v. Beverly, 257 Ala. 484, 59 So. 2d 810; and that the Tenure Commission, when it overturns an action of the county board of education transferring a tenured teacher (including a principal), should give some reasons to support the general statutory grounds, such as "arbitrarily unjust" and "political or personal reasons."
The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court. It may be that that court will go into the evidence and state the reasons why it finds whatever it may find; or that it will follow in this case the method we followed in 291 Ala. 281, 280 So. 2d 130 and reverse and remand through the circuit court to the State Tenure Commission. The decision as to how to handle this case on remandment to the Court of Civil Appeals is fully within the discretion of that court.
Reversed and remanded.
HEFLIN, C. J., and HARWOOD, BLOODWORTH, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
COLEMAN, J., concurs in the result. | February 8, 1973 |
90529579-1c39-49c7-86ce-075b025304d4 | Henderson v. Nationwide Life Insurance Company | 321 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 675 (1975)
In re Norma J. HENDERSON, Individually, and as Administratrix of the Estate of Hugh Gail Henderson, Deceased
v.
NATIONWIDE LIFE INSURANCE CO.
Ex parte NATIONWIDE LIFE INSURANCE COMPANY, a corp.
SC 1517.
Supreme Court of Alabama.
November 6, 1975.
Dortch, Wright & Ford, Gadsden, for petitioner.
No appearance for respondent.
MERRILL, Justice.
Petition of Nationwide Life Insurance Company, a Corp., for Certiorari to the Court of Civil Appeals to review and revise *676 the judgment and decision of that Court in Henderson etc. v. Nationwide Life Ins. Co., 56 Ala.App. , 321 So. 2d 671.
Writ denied.
HEFLIN, C.J., and MADDOX, JONES and EMBRY, JJ., concur. | November 6, 1975 |
df1b5ab1-17c4-4c38-98ff-5a594cd94448 | Morris v. Morris | 273 So. 2d 203 | N/A | Alabama | Alabama Supreme Court | 273 So. 2d 203 (1973)
Ernest C. MORRIS
v.
Jesse L. MORRIS.
SC 70.
Supreme Court of Alabama.
February 8, 1973.
*204 Campbell & Campbell, Scottsboro, for appellant.
No brief for appellee.
BLOODWORTH, Justice.
This is an appeal from a final decree of the Circuit Court of Jackson County, in equity, determining the location of a disputed boundary line between two brothers who are coterminous landowners. The decree was adverse to the appellant-complainant. Hence this appeal.
The trial court, in its final decree dated December 3, 1971, made findings of fact as follows, inter alia:
"That the parties hereto became the owners of the legal title to their respective tracts under and by virtue of the Last Will and Testament of their father, Robert Thomas Morris, who died in 1946, leaving a Last Will and Testament which was duly probated in the Probate Court of Jackson County, Alabama, wherein the Complainant, Ernest C. Morris, was devised the East half of the East half of Section 22, Township 4, Range 5, and the West half of the Southeast fourth of Section 22, Township 4, Range 5, except 16 acres willed to Jesse L. Morris, and also the 5 acres near right of way of Southern Railway Co. and known as the John Sisk land, and the Respondent, Jesse L. Morris was devised the West half of the West half of Section 23, Township 4, Range 5 and 16 acres on the East side of the East half of the Southeast fourth of Section 22, Township 4, Range 5; that the tract of land deivsed to the Complainant was formerly owned by a family named Scott and therefore was called the Scott land, and the tract of land devised to the Respondent was a part of the tract of land formerly owned by a family named Wallace and therefore said tract was referred to by the parties through the years as the Wallace land; that the father of the parties, Robert Thomas Morris, made his will in 1936 and told the Complainant and the Respondent that the Complainant was going to get the Scott property and that the Respondent was to get the Wallace property adjoining the Scott property; that for many years a fence existed on the West bank of a ditch separating the Scott place from the Wallace place, but a part of the fence was torn down a number of years ago; that a part of the old fence has been in existence more than forty (40) years and at present runs South approximately 1000 feet along the West bank of a drainage ditch beginning at or near the point where the East boundary of Section 22, Township 4 South, Range 5 East in Jackson County, Alabama, intersects the South or Southwest right of way line of the Southern Railway Company; that the drainage ditch which runs along side said fence extends South from the terminal point of said fence, in a straight line (except for a very short distance immediately North of the right of way of U. S. Highway No. 72) to the right of way of U. S. Highway No. 72; that a graveled road or driveway extends Southward from the South or Southwest right of way line of U. S. Highway No. 72 in a straight line to the point where said driveway intersects the North boundary of the 16 acre tract owned by the Respondent in the East half of the Southeast quarter of said Section 22, the boundary of which is undisputed; that the Respondent has used and maintained said graveled road or driveway as a means of ingress and egress to and from his home situated on said 16 acre tract continuously since it was constructed in 1936; that the Respondent has cleaned out the drainage ditch which runs along the East side of the above mentioned old fence that extends Southward to U. S. Highway No. 72 and that runs along the West side of the above mentioned graveled road or driveway continuously since 1936; that the Respondent cultivated, farmed or otherwise used the property up to said fence, ditch *205 and driveway on the East side and the Complainant cultivated, farmed or otherwise used the property up to said fence, ditch and driveway on the West side of said fence, ditch and driveway; that the Respondent believed that the fence line and the ditch was the true line separating the lands of the parties; that the Respondent has otherwise exercised dominion and possession under a claim of right to the land lying East of the before mentioned fence and the straight line extention thereof in a Southerly direction to and along the West boundary of said graveled road or driveway to the North boundary of said 16 acre tract on which the home of the Respondent is situated for more than the past 20 consecutive years and such possession has been hostile, actual, exclusive, open, and continuous; and that since the respective tracts were acquired by the parties in 1946 and down until 1967 (more than 20 consecutive years) no dispute or disagreement ever arose or existed between the parties regarding the location of the boundary between the property of the parties to this proceeding."
The trial court fixed the true boundary line between the parties as follows:
Appellant assigns as error certain of the findings of fact made by the trial court.
This court has held:
See also "Boundary Line Disputes in Alabama," Cumberland-Samford Law Review, Volume 3, p. 70, by Shuford B. Smyer.
Likewise in this case, various witnesses gave answers in response to questions which are meaningless to us, since we did not see the pointing finger and do not know to what point the witness referred when the witness answered "here." The trial court was not so limited.
We have read and carefully reviewed the entire record, in the light of the stated rules of law, and we have concluded that there was sufficient evidence presented to the trial court upon which to base its findings of fact and its fixing the true boundary line.
The trial court saw and heard the witnesses testify. Where the evidence is heard orally, the decree of the trial court is favored with a presumption of correctness which will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Morgan v. Larde, supra; Butts v. Lancaster, 279 Ala. 589, 188 So. 2d 548 (1966). We cannot say the decree was plainly erroneous or manifestly unjust.
Appellant also contends that there was no dispute between the parties as to the true boundary line prior to 1967. Appellant seems to argue that the boundary must have been in dispute for more than the period of ten years prescribed for a holding under adverse possession. We know of no such requirement for a coterminous landowner to acquire title up to a disputed line in a boundary line dispute between coterminous landowners. Berry v. Guyton, 288 Ala. 475, 262 So. 2d 593 (1972); Cambron v. Kirkland, 287 Ala. 531, 253 So. 2d 180 (1971); Williams v. Davis, 280 Ala. 631, 197 So. 2d 285 (1967). Thus, this contention of appellant must fail.
It is also asserted by appellant that the trial court erred in not determining the location of the section line between Sections 22 and 23 and in not declaring the section line between these two sections to be the true boundary line. We point out that the true boundary line was determined by the trial court. It was set out in its final decree. The original bill was filed to establish the disputed boundary line between these coterminous landowners, not to establish a section line. Although appellant contends that the section line is the true boundary line between the parties, the trial court determined it to be otherwise, based on testimony taken orally before it. Morgan v. Larde, supra.
Finally, appellant asserts that the description of the true boundary line, as determined by the trial court, is inadequate and legally insufficient. No authority is cited by appellant for this proposition. Nor, does appellant point out wherein the same is insufficient. We believe that the true boundary line was fixed with sufficient precision.
Finding no reversible error in appellant's contentions, the decree of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | February 8, 1973 |
0a0f5aab-5fa8-4987-b85c-b3d0763e965f | Jones v. Ball | 320 So. 2d 665 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 665 (1975)
Hardie JONES et al.
v.
Geraldine BALL et al.
SC 1212.
Supreme Court of Alabama.
October 2, 1975.
*666 Beck & Beck, Fort Payne, for appellants.
Kellett & Scruggs, Fort Payne, for appellees.
EMBRY, Justice.
The action from which this appeal stems commenced with the filing of a statutory bill to quiet title by plaintiffs, Hardie Jones and wife. The bill alleged title in him derived from adverse possession to, and ouster of his cotenants, the defendants. Defendants' answer denied title in him. They counterclaimed and prayed for sale and division of proceeds from sale of the property. The trial court denied relief to plaintiffs and granted relief to defendants on their counterclaim. Plaintiffs appeal from the judgment granting relief under that counterclaim. We affirm.
The property which is the subject matter of this controversy was originally owned by Thomas Jones. Upon his death in 1933, and the subsequent death in 1936 of his wife, their six children took title to the property as tenants in common.[1] One of Jones' sons, Hardie (plaintiff here), entered into possession of the property at that time. The record shows that he has been in continuous possession of the property since that time. At various times he has farmed, pastured, and collected rents on the land. In the judgment which granted relief under the counterclaim the trial court made the following finding:
The issues presented for review by the eleven assignments of error: (1) Is the judgment contrary to the weight of the evidence? (2) Did the trial court err in failing to consider the question of laches as a bar to counterclaimants' assertion of title? *667 In Jenks v. Jenks, 292 Ala. 328, 334, 294 So. 2d 147, 152 (1974), this court quoting from earlier cases said:
The trial court's findings on evidence adduced ore tenus is cloaked with a presumption of validity and will be disturbed only when manifestly erroneous. Almon v. Champion International Corp., 293 Ala. 727, 310 So. 2d 207 (1975).
Under the rules as stated in Jenks we cannot say that the findings were erroneous. The evidence indicates that on two occasions Hardie Jones attempted to obtain the signatures of other cotenants on a deed conveying the property to him. This is indicative of a recognition of their rights. The tax assessments and tax receipts show that while Hardie Jones paid those taxes,[2] the property was assessed as the "Thomas Jones Estate." Further, we find evidence in the record from which the trial judge could properly conclude that Hardie Jones' continued possession and use of the property and collection of rents was by permission of his cotenants. The evidence is ample to support the findings contained in the judgment of the trial court as well as the judgment itself. It is clear that the adverse claim of Hardie Jones was never brought home to the other cotenants. Jenks, supra.
The rights and remedies of counterclaimants are not barred by laches in this case.
The judgment of the court does not, on its face, indicate consideration of the laches question. However, granting relief under the counterclaim necessarily resolved the question of laches adversely to plaintiffs.
*668 The evidence in the record does not show a change in circumstances in this case which would bar the relief requested by counterclaimants.
Affirmed.
HEFLIN, C.J., and MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur.
[1] While not clear from the record, Thomas Jones apparently died intestate. Thus his property, subject to widow's dower rights, descended to his children as tenants in common. Code of Ala., Tit. 16, §§ 1, 9.
[2] Following the death of Thomas Jones in 1933, the taxes were paid by Ernest Jones until 1947, at which time Hardie Jones began paying the taxes. | October 2, 1975 |
6e72b538-cbdf-4246-a09c-486abe69ed8f | Parker v. McGaha | 321 So. 2d 182 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 182 (1975)
W. Fred PARKER
v.
John T. McGAHA.
SC 648.
Supreme Court of Alabama.
September 18, 1975.
As Corrected on Denial of Rehearing October 30, 1975.
Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellant.
*183 Alvin T. Prestwood, Montgomery, for appellee.
ALMON, Justice.[*]
This is the second appeal in this litigation between John T. McGaha, plaintiff-appellee, and W. Fred Parker, defendant-appellant. The opinion of this court in the first appeal was rendered on July 12, 1973, and now appears in 291 Ala. 339, 280 So. 2d 769.
McGaha brought an action against Parker to recover payment on a note for $100,000 held by 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 rights, 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.
The first trial resulted in a jury verdict in favor of the defendant, which was set aside by the trial court on motion for new trial filed on behalf of Mr. McGaha. Mr. Parker appealed to this court, and the action of the trial court in setting aside the first verdict was affirmed.
When the case came for retrial, the attorneys representing Mr. Parker, some of whom had been added since the first trial, moved the court on August 23, 1973, that the second trial be conducted under the new Alabama Rules of Civil Procedure. The trial court denied this motion on the ground that the application of the new Rules of Civil Procedure to this case would not be feasible and would work injustice. Again, at a more formal conference with the judge and all attorneys held on September 6, 1973, a written motion to conduct the second trial under the new Alabama Rules of Civil Procedure was filed and again overruled. Appellant-defendant alleges that this was error.
Rule 86 of the Alabama Rules of Civil Procedure states that these rules
This is the first case considered by this court in which there has been a controversy as to whether the former rules or the new rules should be applied to a pending action. Since Rule 86 of the Alabama Rules of Civil Procedure contains language almost identical to the federal Rule 86, we look to federal cases for guidance.
A study of the federal cases which have considered this question does not reveal any definitive answers. In Doyle v. Loring, 107 F.2d 337 (6th Cir. 1939) the court dealt with the question rather summarily:
However, in John R. Alley & Co. v. Federal National Bank, 124 F.2d 995 (10th Cir. 1942), the court refused to give the trial judge such unfettered discretion:
Although Rule 86 leaves it to the opinion of the trial judge as to whether the application of the new rules to a pending action would be feasible or would work injustice, the application of the former rules should be the exception rather than the rule. When it is concluded by a trial judge that the application of the new rules would not be feasible or would work injustice, his reasons for so concluding should be set forth in the record.
We have encountered nothing in the record before us which would indicate that the application of the new rules would not be feasible or would work an injustice. As was previously indicated the trial judge has not favored us with his reason for denying the motion. Since this case must be remanded for new trial, for reasons hereinafter indicated, we suggest that the new rules be employed unless the trial court makes a contrary finding adequately supported by good and sufficient reasons.
The defendant filed his second amendment to pleas on September 6, 1973, consisting of plea 7, in setoff; plea 8, in recoupment; plea 9, in setoff; and plea 10, in recoupment. On October 3, 1973, the defendant filed his third amendment to pleas, being a plea of recoupment claiming damages in the amount of $100,000 for deceit on the part of Mr. McGaha in the negotiation to Mr. Parker of the $196,500 promissory note. At the hearing before the trial court on November 12, 1973, the plaintiff filed a motion to strike defendant's pleas 7 through 11, separately and severally, in the ground that they were not filed on a timely basis and that they raised or attempted to raise entirely new defenses to the plaintiff's cause of action at a time when the issues in the case had been previously clearly drawn, and nearly three years after the filing of the complaint. The court granted the plaintiff's motion. Appellant alleges that this was error.
The case of Rasmus v. Schaeffer, 230 Ala. 245, 247, 160 So. 244, 246 (1935) *185 appears to be dispositive of this issue. There, it was stated that
If, upon retrial, however the rules of procedure are employed, it would be appropriate to reassess the allowance of amendments in the spirit of the new rules. But see Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So. 2d 469 (1975).
Most of appellant's numerous assignments of error allege that the trial court erred in excluding parol evidence of the failure or partial failure of consideration for the note in controversy. It is evident from the record that the trial judge misapplied the "parol evidence rule" and its exceptions.
It is sometimes considered that the "parol evidence rule" is not a rule of evidence at all but a rule of substantive law. Rinaudo v. Bloom, 209 Md. 1, 6, 120 A.2d 184, 188 (1956).
A mention of but a few of the exceptions recognized by the Alabama courts will illustrate why there is so much confusion concerning the rule:
1. Parol evidence is always admissible to show that an instrument is void or to show a lack or failure of consideration. Corbin v. Sistrunk, 19 Ala. 203, 205-06 (1851);
2. Evidence of fraud is always admissible, even though there is a completely integrated writing. Nelson Realty Co. v. Darling Shop, 267 Ala. 301, 309, 101 So. 2d 78, 84 (1957); and
3. Where there is ambiguity in a contract, parol evidence is admissible to aid in the contract's interpretation. McClendon v. Eubanks, 249 Ala. 170, 178, 30 So. 2d 261, 268 (1947).
In the present case, the trial judge refused to allow parol evidence of failure or partial failure of consideration. This was error.
For the reasons indicated, the judgment is due to be reversed and the cause remanded.
Reversed and remanded.
HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON and EMBRY, JJ., concur.
Opinion corrected; application for rehearing overruled.
HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON and EMBRY, JJ., concur.
[*] This case was originally assigned to a justice formerly on this court. It has been reassigned to the writer who has listened to the tape recordings of the oral argument. | October 30, 1975 |
73754524-21f1-453c-a21f-ee25d43cc58e | Henley v. Birmingham Trust National Bank | 322 So. 2d 688 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 688 (1975)
John C. HENLEY, III
v.
BIRMINGHAM TRUST NATIONAL BANK.
SC 780.
Supreme Court of Alabama.
August 21, 1975.
As Corrected on Denial of Rehearing November 6, 1975.
*689 Crenshaw & Minor, Montgomery, for appellant.
Macbeth Wagnon, Jr., Birmingham, for appellee.
JONES, Justice.
This is an appeal from a decree of the Circuit Court of Jefferson County entered on a petition filed by Birmingham Trust National Bank (appellee) which prayed for *690 instructions and for ratification of previous acts by BTNB, as co-trustee of a charitable trust. John C. Henley, III (appellant), the other co-trustee, whose cross bill seeking removal of BTNB as co-trustee and other relief was denied, now appeals the order of instructions and ratification given BTNB.
The Trust involved is the Linn-Henley Charitable Trust which was established by the will of Walter E. Henley, the uncle of appellant Henley. Walter Henley was a member of the Board of Directors of BTNB for a period in excess of 50 years and President and Chairman of the Board of the Birmingham Realty Company. The trust corpus consisted almost entirely of stock, one-half of which was BTNB stock. The beneficiaries of the Trust, selected by the co-trustees, are limited to:
In the fall of 1968, the management of BTNB decided that it would be advantageous to change its corporate structure from a National Banking Association to that of a "holding company." When this merger was completed, the new structure would consist of a national bank known as the Alabama National Bank, and a Delaware business corporation known as the BTNB Corporation which would own all of the stock of the "new" national bank.
The plan of merger, as governed by the National Banking Act, 12 U.S.C. § 215a, was that the existing bank would be merged into the "new" bank. The "new" bank would not issue stock in the National Banking Association to the shareholders of the "old" bank, but instead would issue one share of stock of the "new" bank directly to the Delaware business corporation in exchange for stock of the existing bank. The Delaware corporation would then issue one share of stock of that corporation for each share of stock in Birmingham Trust National Bank turned in for conversion. When these various steps were completed, each former shareholder of Birmingham Trust National Bank would hold stock of the Delaware business corporation known as BTNB Corporation.
Although over 80% of the stockholders were in favor of this merger, Henley was opposed to it since he felt that from an investment viewpoint the stock of "old" BTNB was more desirable. Thereupon, under authority of 12 U.S.C. § 61(3), which states that in a situation where a national bank and one or more individuals are co-trustees of a trust containing stock of the national bank, the shares of the bank stock may be voted by the individual co-trustee as though he were sole trustee, Henley voted both his personal stock and the Trust's 27,460 shares against the merger, and made extensive remarks in support of his position at the stockholders' meeting. The merger was approved by the Comptroller and became effective on December 31, 1968.
On January 30, 1969, Henley informed BTNB that the Trust was dissenting from the merger. BTNB, to state it mildly, was quite incensed at this course of action pursued by Henley and unsuccessfully attempted to persuade him not to continue with his planned avenue of dissent.
The President of BTNB even arranged a meeting between Henley and one J. Craig Smith, a director of BTNB and Chairman of the Board of Avondale Mills, in the hope that Smith could persuade Henley not to dissent from the merger. It seems that Henley's company, Birmingham Publishing Company, had for some years been responsible for printing the annual reports of Avondale Mills. In fact, one *691 year earlier Birmingham Publishing Company performed over $30,000 worth of services for Avondale Mills. Conspicuously, however, after this meeting with Smith, wherein Henley refused to alter his stand, Birmingham Publishing's business with Avondale Mills dwindled to $640 two years later.
The statutory procedure for dissent by a stockholder in the present situation is outlined in 12 U.S.C. § 215a(b), (c) and (d). In substance, that procedure is as follows: Those shareholders who are opposed to the merger, as was the Trust, shall be entitled to receive the value of the shares they hold after the merger is approved by giving the receiving association (the "new" bank) notice of such intent at any time before thirty days after the date of consummation of the merger, and by surrendering the stock certificates.
The value of the shares of any dissenting shareholder shall be ascertained by an appraisal made by a committee of three persons, composed of (1) one selected by the vote of the holders of the stock who are dissenting; (2) one selected by the directors of the "new" bank; and (3) one selected by the two so selected.
If, within 90 days of the consummation of the merger, for any reason one or more of the appraisers are not selected, or they fail to determine the value of the shares, the Comptroller, upon written request of any interested party, shall determine the value of the shares which shall be final and binding on all parties. This amount shall be promptly paid to the dissenting shareholders by the "new" bank. Then those shares of the "new" bank which would have gone to the shareholders in exchange for their shares of "old" bank stock, had they not dissented, shall be sold at an advertised public auction. The "new" bank has the right to bid on the "new" stock, and if the price paid at this auction is greater than that paid to the dissenting shareholders, the difference shall be paid to the dissenting shareholders. If the "new" bank is the highest bidder at this auction, it shall resell these shares within 30 days thereafter to such person or persons as it shall desire.
Henley, in compliance with the statute, gave BTNB notice of his intent to dissent and surrendered the shares held by the Trust. Henley appointed one appraiser, though no notice was given to BTNB of such appointment, and BTNB did not appoint anyone to appraise the value of the stock. Neither Henley nor BTNB complied with the 90-day requirement of notifying the Comptroller should the appraisers not be appointed or be unable to agree as to the value of the stock. In fact, Henley never gave notice to the Comptroller and BTNB did not do so until September 23, almost eight months after the merger.
The Comptroller finally did determine the value of the shares of $32.80 a share, for a total of $900,688. Neither co-trustee submitted any pertinent information to the Comptroller which might have aided him in reaching his decision as to the value of the shares.
As required by the statute, BTNB then offered for sale at auction the holding company stock, i.e., the equivalent of the stock of the old bank. The only bid was by BTNB Corporationthe holding companyfor $26 per share. Since this bid did not exceed the $32.80 per share previously paid by the dissenting shareholders, no further payment was made by BTNB to the Trust.
In addition to the foregoing transaction, Henley also wished to persuade BTNB to allow the Trust to purchase stock in Birmingham Realty Company. The company, of which Walter Henley was a substantial stocholder, originally owned about 2700 acres where the City of Birmingham is located. It still owns in excess of 200 parcels of real estate in the area.
Henley's argument in favor of purchasing more stock in Birmingham Realty was based on his contention that Walter Henley *692 had in the past discussed with him his desire to bring control of the company to Birmingham from New York. In 1970, about 5% of the outstanding stock in Birmingham Realty came up for sale. If the stock could be acquired, the New York holdings in the company would be reduced below 20% and control would then be centered in Birmingham. Henley began negotiations and was told that the stock, with a book value of $900 per share, could be purchased for $650 per share. BTNB refused to agree to the purchase. It was stipulated that the last trade of Birmingham Realty stock before the trial was 5 shares at $1800 per share on May 14, 1973, and that less than 10 shares were offered by the Montgomery office of Sterne, Agee and Leach at a price of $2050 per share.
In April, 1970, Henley demanded further payment by BTNB to the Trust. (Prior to this, BTNB had mistakenly paid $32,952 as dividends on stock of the Delaware Corporation since the Trust no longer owned the stock, and had offered to pay the Trust $28,211 or approximately 6½% interest on the appraised value of the BTNB stock which it had had the use of for more than a year.) After an extended period of unfruitful negotiations between the two cotrustees, BTNB petitioned the circuit court for instructions and ratification of previous acts.
The issue presented, then, is whether either or both BTNB and Henley, as cotrustees of a charitable trust, are guilty of a breach of their fiduciary duty owed to the Trust as trustees. We find that both are guilty of such a breach.
Initially, we would point out, irrespective of Henley's contentions, that we are not here to decide the propriety vel non of BTNB's decision to merge itself from a national banking association to that of a "holding company." This is a decision solely within the discretion of the directors and shareholders of BTNB. As previously noted, the option of dissent was readily available to those who were in disagreement with that decision. Thus, Henley's argument in this respect is without merit.
It is a fundamental rule of law that a trustee must act in good faith and display complete loyalty to the interests of his beneficiaries. First National Bank of Birmingham v. Basham, 238 Ala. 500, 191 So. 873 (1939); Barker v. First National Bank of Birmingham, 20 F. Supp. 185 (D.C., Ala. 1937). It is this duty, in our opinion, that the co-trustees have breached.
The primary error in the decree of the lower court can clearly be seen when it stated:
*693 The trial Judge was correct when he determined that BTNB should have sought a resolution of this problem in advance of any direct action on its part. Gilmer v. Gilmer, 245 Ala. 450, 17 So. 2d 529 (1944). The crux of the controversy, however, as found by the Court, is not the relative right or fault of the co-trustees, but rather the separate and several duties of each to the Trust; and any breach on the part of one co-trustee would certainly not excuse those duties of good faith and loyalty owed by the other co-trustee. After all, charitable trusts are especially favored in equity. Mastin v. First National Bank of Mobile, Inc., 278 Ala. 251, 177 So. 2d 808 (1965). Thus, this suit is clearly not concerned with the rights and duties of one co-trustee as opposed to those of the other, but solely with those of the Trust. The principle of contributory or comparative fault or neglect as between co-trustees plays no role in measuring the proper discharge of this high duty imposed by law on each trustee.
We will first deal with the breach by both BTNB and Henley in their handling of the Trust's interest in the dissent procedure. Under the outlined procedure of dissent, three appraisers were to be selected. Henley selected one but failed to notify BTNB of such selection and BTNB neglected to select an appraiser at all. Consequently, the third appraiser could not be selected. Additionally, this step not having been complied with, a Comptroller should have been notified within 90 days from the date of the merger. Henley did not give such notice at all, and BTNB did not give it until about eight months after the merger. BTNB attempts to excuse its failure to appoint an appraiser by Henley's failure to notify it of his selection, and that the second procedure of allowing the Comptroller to make the appraisal was always available in lieu of selecting the three appraisers.
These were acts of contest and struggle between the co-trustees and can hardly be said to be acts of good faith and exercises of undivided loyalty on the part of either co-trustee. Every step possible to insure that the Trust assets were protected should have been taken; and it was incumbent upon each to comply with the fiduciary standards required of a trustee irrespective of the default of the other. The default of each is apparent and inexcusable.
Henley contends that BTNB should have at least temporarily removed itself as a co-trustee when it was notified of the Trust's decision to dissent from the merger. A conflict of interest was apparent, says Henley, since BTNB was placed in a position whereby on the one hand it had the duty as a co-trustee to see that the Trust received the highest price possible for the stock and, on the other, as the purchaser of the stock, to see that the lowest possible price was paid.
BTNB contends that there was no incumbent duty upon it to resign and that there was no conflict of interest since Henley's decision that the Trust would dissent from the merger forced them into the situation where they became both a seller and a purchaser; also, the dilemma was resolved by the statutory dissent procedure available. With this we cannot agree. Henley did not force BTNB into this situation by merely exercising a legal right in favor of the Trust; but it was the duty of BTNB to recognize the obvious conflict of interest which resulted and resolve it by at least temporarily resigning as trustee.
A breach of the co-trustees' duties can be seen in the alternative step of having the Comptroller fix the value of the stock. Neither co-trustee submitted any pertinent information to the Comptroller which might have enabled him to make a more favorable determination of the value of the Trust's BTNB stock. Henley requested annual reports and "internal audits" of BTNB for the five years preceding the merger. The reports were delivered but the "audits" were not. BTNB *694 stated that the audits did not contain any information which would be pertinent to the Comptroller's appraisal of the stock. Henley excuses his failure to submit any information to the Comptroller on BTNB's failure to supply the audit information. BTNB attempts to excuse its failure to submit information to the Comptroller for two reasons:
First, due to Henley's decision to dissent, he became, for all practical purposes, the sole trustee and thus the duty to submit the information fell on his shoulders and off those of BTNB. (This contention of itself reveals the inherent conflict of interest.)
Secondly, since the Comptroller already possessed extensive information about BTNB as a result of the national bank examination performed two or three times a year, there was no need on their part to submit any additional information. (This virtually admits a default in the discharge of its obligation.)
Again, we cannot agree that the acts or omissions of either co-trustee excused the subsequent breach of duty by the other cotrustee. BTNB and Henley should have each taken the initiative to submit as much information as possible to the Comptroller to enable him to make an accurate appraisal of the stock's value.
Notwithstanding the foregoing. BTNB contends that the Comptroller's appraisal, as stated in 12 U.S.C. § 215a(d), "shall be final and binding on all parties"; and that even if such appraisal was not final and binding, it could only be reviewed by a direct proceeding in which the Comptroller was a party. That is to say, BTNB's contention is that federal law has preempted this entire area of law and that a state court, therefore, is precluded from reviewing the Comptroller's appraisal. Here, again, this contention proceeds on the false premise that the controversy is limited to BTNB and Henley. Moreover, the flaw in this contention is that we are not reviewing the finding of the Comptroller. We are reviewing the acts of the cotrustees, as such acts relate to their fiduciary duties to the Trust, which supervisory jurisdiction has not been preempted by the federal statutes and rests exclusively with the state court.
BTNB contends that, assuming the Comptroller's appraisal was affected by the actions or inactions of either co-trustee, the Comptroller's decision is not subject to review under authority of Heikkila v. Barber, 345 U.S. 229, 73 S. Ct. 603, 97 L. Ed. 972 (1953), and Crane v. Hahlo, 258 U.S. 142, 42 S. Ct. 214, 66 L. Ed. 514 (1922). Neither case supports such contention.
In Heikkila, an alien was deported by order of the Attorney General under authority of § 19(a)[1] of the Immigration Act of 1917, which states that such order "shall be final." Judicial review was proscribed by the very terms of the Act and the complaining parties sought just such a review. The Court recognized habeas corpus, in which issues not administratively adjudicated under the Act could be raised, as the only available remedy.
Crane was concerned with the amount of damages awarded in an eminent domain proceeding by the Board of Revision of Assessments in which the statute authorizing such proceeding provided that the award was final and conclusive. Both of these cases deal with efforts to review the merits of previously adjudicated issues expressly contrary to the proscription contained in the Act authorizing the proceedings; and the principle which dictated the result in each case is distinguishable from the case at bar in that the issue before us the fidelity vel non of a co-trusteehas not been, nor could it have been, adjudicated.
That the preemption doctrine has a field of operation can be seen from the case of Rogers v. First National Bank of St. *695 George, 297 F. Supp. 641 (D.C., S.C., 1969), which held that national bank merger procedures are controlled by federal and not state law. The Federal Act does not address itself, however, to fiduciary duties,[2] and this is recognized by the final section of the Act which prohibits discrimination in the removal of a merging bank, as a trustee, by a state court on the sole ground that it has availed itself of the merger procedure authorized by the federal banking laws. The federal law cannot preempt that which it does not include nor purport to deal with. The state law is, and necessarily must remain, fully intact with respect to its supervisory jurisdiction of trust estates.
We now turn to Henley's contention that BTNB's refusal to consent to the purchase of Birmingham Realty Company stock for the Trust was premised on consideration for its private interest and not those of the Trust. Credence is given to this contention by the testimony of a BTNB trust officer when he stated:
As stated in Barker v. First National Bank of Birmingham, supra, when referring to the duties of a trustee, "all personal or selfish interests and all consideration of the interests of third parties must be excluded. His must be an undivided loyalty."[3]
Clearly, if the foregoing statement is the true reason for BTNB's refusal to purchase the stock, then it has committed a definite breach of its fiduciary duty.
BTNB asserts that its reasons for refusing to purchase the Birmingham Realty stock are as follows:
When taken together, and fully analyzed, these reasons are but supportive of the conclusions stated in the trust officer's testimony and demonstrate the legal conclusiveness of the conflict of interest on behalf of BTNB with respect to this transaction.
Next, BTNB contends that, assuming some breach of duty on their part, no evidence was adduced showing that any damage to the Trust resulted therefrom. Indeed, the anomaly encountered in obtaining any "after the fact" remedy on behalf of the Trust is readily apparent. The bank stock, the value of which is the principal asset involved, is gone. So is the Birmingham Realty stock. But the difficulty of ascertaining the loss, if any, suffered by the Trust can never be a legal ground for ratification of such flagrant abuse of fiduciary duties by the co-trustee. If difficulty of solution were the basis for denying a remedy, hardly any field of operation would exist for the equity arm of the Court.
We recognize that our remand of this cause with instructions for resubmission of the issue of damages to the Trust, if any, places on the trial court a responsibility which would not have arisen had there been a good faith utilization of the procedure set out in the Federal Act with regard to placing a value on the bank stock. But, here again, federal law contemplates faithful discharge of fiduciary duties, and does not speak to fiduciary accountability. Therefore, the guilty trustee cannot be heard to complain that its misconduct invites, with its attendant risks, a state court review and determination of liability for damages, if any, to the Trust. As we have previously observed, state courts exercising supervisory jurisdiction over trusts provide the only available forum for such review and determination.
This case is remanded to the trial Court with the following instructions:
In conclusion, we observe that the Attorney General of the State of Alabama was made a party to this litigation as authorized by State v. Bibb, 234 Ala. 46, 173 So. 74 (1937). The record shows that the Attorney General filed an answer request in effect that the Court protect the interests of the beneficiaries to the charitable Trust. Except for one apologetic reference made by the trial Judge to his failure to recognize the representative from the Attorney General's office for the purpose of examining a witness, the record is moot as to any participation by the Attorney General in the trial of this cause. The wisdom of Bibb, authorizing representation of the beneficiaries of a charitable trust by the Attorney General, is abundantly exemplified by the posture of the record in this case. We have noted this fact merely to comment that we deem appropriate the active participation by the office of the Attorney General on behalf of the beneficiaries of the Trust Estate upon retrial of this cause.
Reversed and remanded with instructions.
*698 MERRILL, ALMON, and EMBRY, JJ., concur.
SHORES, J., concurs in the result.
HEFLIN, C.J., and MADDOZ, J., dissent.
BLOODWORTH and FAULKNER, JJ., not sitting.
MADDOX, Justice, (dissenting).
Everyone seems to agree that this is a unique case, but as I view it, there is just one legal questionwhat is the duty of a national bank in consolidation or merger proceedings, when the bank is co-trustee of a charitable trust, and a major asset of the trust is the stock of the bank?
The majority opinion sets out the facts and I shall not restate them, but I do list a few of the basic points for a better understanding of my dissent. This charitable trust was established by the late Walter Henley who was a director, a president and later chairman of the board of Birmingham Trust National Bank, one of the co-trustees. This controversy arose when BTNB decided to merge into a holding company. The other co-trustee, John C. Henley, III, was opposed to the merger.
In this proceeding, the trial judge, after hearing extensive testimony, did not find that the bank had been disloyal to the trust, although he did point out that the bank and Henley should have received instructions in advance. The attorney general, representing the beneficiaries of the charitable trust, does not question the trial court's finding of no disloyalty on the part of BTNB.
My dissent is based on these basic points:
1. Under the facts of this case, I find no prejudicial error in the trial court's determination that the bank was not disloyal;
2. The conduct of fiduciary business by BTNB, a national bank, was governed by federal law and regulation;
3. Since there was no cross-appeal, I believe this Court exceeds its appellate jurisdiction when it finds that co-trustee Henley was also disloyal;
4. I question whether, on the record before us, this Court should direct the attorney general in the exercise of what, normally, is considered to be his executive discretion.
First, let me point out that I believe that the majority has acted in good faith, and that they sincerely believe, as indeed they find, that both Henley and BTNB were disloyal to this trust. I believe, however, that the majority has made an inflexible application of the conflict of interest rule, which I believe is not suitable in this case. Furthermore, the majority has specifically failed to apply the principle that the conduct of fiduciary business by national banks is governed, significantly, by federal laws and regulations.
The trial judge determined that the bank acted in good faith. There is substantial evidence to support this finding, and I believe that this finding of no disloyalty is very important to a decision in this case.
Nobody can quarrel with the fundamental rule of law, stated in the majority opinion, that a trustee must act in good faith and give undivided loyalty to his trust. First National Bank of Birmingham v. Basham, 238 Ala. 500, 191 So. 873 (1939).
Unquestionably, if a trustee has engaged in self-dealing, as a matter of public policy, and because of the temptation of wrongdoing, the cestui que trust (the attorney general represented them in this case) may elect to affirm or disaffirm, unless countervailing equities have intervened. Whether the trust estate sustained a loss or profited is of no consequence. The *699 Basham case also says that the primary consideration is the good faith of the trustee. In Basham, the trial court had surcharged the trustee. This Court reversed and remanded the case, saying at one point:
A close reading of the Basham case indicates to me that this Court recognized in that case that even if a conflict of interest may seem to exist, the good faith of the trustee is the critical question.
The majority also cites Barker v. First National Bank of Birmingham, 20 F. Supp. 185 (D.C.Ala.1937), in support of their position that BTNB was disloyal. I believe the majority has failed to read what this Court said about the Barker case in Basham, as follows:
In Barker, the federal district court had criticized the bank on an inter-trust sale of a mortage participation, but did not surcharge the trustee which acted in good faith.
I believe that Alabama follows the rule, advocated by many legal writers, that when conflicts of interest cases involving corporate trustees arise, they should be approached in light of the remoteness of the conflict and the presence or absence of good faith. see, Prochnow, Conflict of Interest and the Corporate Trustee, 22 Bus. Law, 929 (1967); Comments, Corporate Trustee's Conflict of Interest, 25 U.Chi.L.Rev. 382 (1958). The writer of the University of Chicago Comment thinks both Basham and Barker suggest "the use of good faith as a defense" in a conflicts of interest case. It has also been suggested that almost every trustee is subject to some degree of divided loyalty. Niles, The Divided *700 Loyalty Rule, 91 Trusts and Estates, 734 (1952). Niles states the most common disloyalty is for a trustee to conduct himself so that he can be safe from any criticism.
The problem I have with the majority opinion is that I do not think the opinion recognizes the use of good faith as a defense in a conflict of interest case. Even if I did not think that this Court had recognized good faith as a defense in a conflict of interest case, I believe the settlor of this particular trust recognized that, on occasion, one or both of the trustees might have an "adverse interest." The only limitation he made was that each trustee should not exercise any power or discretion for the "personal advantage of the trustees." The specific trust clause provides:
As I read this clause, the trustees could act, "irrespective of the adverse interest" of either of them, but they must act in good faith for the best interest of the trust. Now, there was a difference of opinion between the co-trustees about whether the merger was in the best interest of the trust. If both trustees acted in good faith, thinking their independent judgments were in the best interest of the trust, why is that a breach of trust? Is it not possible that the bank's business judgment concerning what was good for the bank would also be good for the trust, especially since a substantial asset in the trust was the bank stock?
In Basham, this Court seems to approve of transactions where the interests of a trustee coincides with those of the trust, assuming, of course, the presence of good faith:
Since the trial court found the bank was not disloyal, I believe that this finding, under Alabama law and under the terms of the trust instrument, was a defense against the "conflict of interest" charge.
Under the facts of this case, what federal law was applicable? Let's examine the facts and apply the law. The management of the bank had decided to consolidate. Since the bank held shares of its own stock as trustee, it could not vote the shares in the consolidation proceeding, because Tit. 12, § 61, U.S.C., prohibited it from voting these trust shares. That section provides, in part:
As I read this statute, when the question of merger came up, this section prohibited the bank from voting the trust stock. However, the statute specifically permitted Henley, as co-trustee, to vote this stock. Henley, acting under this statute, actually voted every share of the trust stock against the merger, as he had a legal right to do acting as he was under the statute as the "sole trustee." A reading of Tit. 12, § 61, convinces me that when a national bank holds shares of its own stock as sole trustee, it cannot vote the stock and these shares are excluded in determining whether matters voted upon by the shareholders were adopted by the requisite percentage of shares. I believe this portion of Tit. 12, § 61, U.S.C., was added by Congress to the National Banking Act in 1966 to prevent an inequity. If shares so held by a bank in trust could not be voted, and were not excluded, voting rights belonging to the beneficiaries of the trust would, in effect, be given to the remaining shareholders. cf. Cleveland Trust Co. v. Eaton, 21 Ohio St.2d 129, 256 N.E.2d 198 (1970). When shares of its own stock are held by a national bank and one or more persons as trustees, then the other person or persons may vote the stock in the same manner as if he or they were the sole trustee.
Henley, acting as sole trustee, became a dissenting shareholder, pursuant to federal law. The critical question at this point was: what duty did the bank have with regard to the trust? The majority seems to say, in effect, that the bank should have supported Henley's dissent even though it was against its business judgment. I disagree. Federal law prohibited the bank from voting the stock. Was the bank under a duty to support Henley's dissent, even though it, acting in good faith, thought his dissent was not in the best interest of the trust? I think not. If Henley had not dissented, the BTNB stock would have been exchanged for the "new" bank stock. Does the bank fail to give undivided loyalty to the trust by disagreeing with a business judgment exercised by a co-trustee, *702 who is statutorily empowered to vote the shares as a "sole trustee?" I think not. I believe that federal law sufficiently protected this trust but even if I did not think' that, I believe that this Court should consider this case in the light of the finding by the trial court of an absence of bad faith on the part of the bank.
In any event, when Henley decided to dissent, I believe that he became a "dissenting stockholder" under the provisions of federal law and from that point forward, national law provided, in detail, the procedure which had to be followed to determine the value of the shares. Tit. 12, § 215(b), U.S.C., provides, in part, that when a shareholder dissents from a plan of consolidation, he "shall be entitled to receive the value of the shares so held by him when such consolidation is approved by the Comptroller * * *." The valuation of the shares is governed by national law. Tit. 12, § 215(c) provides:
Appraisal by Comptroller; expenses of consolidated association; sale and resale of shares; State appraisal and consolidation law.
As I read the majority opinion, it does not say that the bank failed to follow the procedure outlined in the national banking laws and regulations. Procedurally, the bank did nothing that was not allowed under national banking laws in consolidation proceedings involving dissenting shareholders. Even Professor Scott, who has been accused of developing the stringent conflict of interest rule [see, Notes and Comments: Trusts: The Rule of Undivided LoyaltyCorporate trustees holding their own shares, 33 Cornell L.Q. 616 (1948), agrees that this is true. He says:
Of course, federal law would not protect self-dealing, and for that matter, neither would Alabama law, where the personal interest of a trustee is at variance with the interest of those whom he represents in trust relations. As I read the federal law, it is designed to prevent conflicts of interest when a bank trustee holds shares of its own stock in trust. I believe that a trustee bank which follows federal regulations, in good faith, could not be guilty of a breach of trust. In other words, when a national bank acts pursuant to federal law in merger proceedings, without disloyalty to the trust, as the trial court found in this case, then I believe that this Court could not remove a national bank as trustee so long as it was acting in good faith in following federal laws and regulations. [cf. First National Bank v. Fellows, 244 U.S. 416, 37 S. Ct. 734, 61 L. Ed. 1233 (1917)]
I believe the Court exceeds its appellate jurisdiction when it decides that Henley was also disloyal. The trial court entered no judgment on this issue. In the absence of a finding of bad faith by the trial court, I would not reach this issue. This Court's finding of disloyalty by Henley raises serious questions. Could the Attorney General, or should he, in view of the suggestion given in the majority opinion that he should actively participate, file proceedings against Henley for surcharge?
It appears to me that Henley, under the trust instrument, had the same powers and duties BTNB had. I would apply the same principles of law to Henley's actions as I would to BTNB'sthat is, if that were before me. I believe that with regard to the purchase by the trust of the Birmingham Realty Company stock, the trial court has not found BTNB disloyal. The trial judge made no finding with regard to whether Henley was acting in good faith and in the best interest of the trust or for his own personal advantage in this matter. I fail to find in the record before us that Henley's *704 loyalty was made an issue at the trial level. Consequently, I fail to see how this Court can reach it. Furthermore, to find Henley guilty of a breach of trust without allowing him an opportunity to defend raises serious due process questions.
This Court cannot direct the exercise of an act of executive discretion.
The attorney general appeared in this proceeding, at the beginning of the trial with three attorneys, but took little active interest except to ask the court to protect the beneficiaries of the trust. I question whether this Court should suggest to the Attorney General how he must represent the beneficiaries of this trust. He is a constitutional officer and is vested with executive discretion.
The effect of the majority decision, I fear, means that every bank which is serving as a sole trustee or as a co-trustee of a trust containing shares of its own stock, would have to, at least temporarily, remove itself during the course of every consolidation proceeding. I cannot believe this is the law. In short, I think the matter of self-dealing and consolidation, are dealt with by federal law and by regulations promulgated by the comptroller of the currency. See, 12 C.F.R., § 9.12. I believe that when a trustee bank acts in good faith, and follows the procedures required by federal law, this Court should not find that the trustee bank breached its duty. In other words, it would seem to me that when an individual co-trustee decides to exercise rights granted to him by federal law "in a manner as if he or they were the sole trustee," the co-trustee, acting as the sole trustee, must bear the commensurate responsibilities of a sole trustee. If the bank had been sole trustee, the bank shares would have been excluded in determining whether the other shareholders voted for or against merger by the required percentage.
The principles I would apply would seem to be especially true in this case, since we are dealing with a charitable trust. Section 383, Restatement of Trusts 2d, provides that if there are several trustees of a charitable trust, the powers conferred on them can properly be exercised by a majority of the trustees, unless it is otherwise provided by the terms of the trust. In other words, in this case, federal law permitted the co-trustee of this charitable trust to exercise the powers which had been initially conferred upon the cotrustees. Henley decided to dissent from the merger. I cannot say whether his judgment was good or bad. I do believe, however, that under the trust instrument in this case, both trustees had the power and discretion to act, irrespective of their adverse interests, so long as they exercised their powers and discretions in the best interest of the trust. First National Bank of Birmingham v. Basham, supra.
When Henley dissented and the bank was put in a conflict of interest position, under federal law, Alabama law, and the terms of the trust instrument, the bank had to exercise good faith. The trial court found the bank was not disloyal, as a matter of fact.
In view of the above, I would affirm the judgment of the trial court which found that the bank was not disloyal to the trust.
HEFLIN, Chief Justice (dissenting):
While I don't completely agree with all the language and all of the conclusions of law contained in Justice Maddox' dissenting opinion, I am in general agreement with it.
In my opinion, the Congress of the United States anticipated the problems which arose in this case. Congress anticipated that conflicts of interest could easily arise between a bank trustee and an individual co-trustee and that charges and countercharges of disloyalty to the trust and its beneficiaries could be present in a merger *705 reorganization of a national bank where the trust held stock in that bank. Therefore, Congress provided procedures to meet the anticipated problems, including the valuation of bank stock held by a trust of which the merging bank was one of the trustees.
After reviewing the majority opinion I have concluded that the majority finds that the only real breach of BTNB's trust duties involved in the merger reorganization was that BTNB breached its fiduciary relationship in failing to submit valuation data to the Comptroller of the Currency. Since an appraisal was made by the comptroller and public auctions of the stock were held, strict compliance with the requirements concerning the appointment of the three appraisers and with other preliminary steps was made moot. My colleagues of the majority fail to realize that Congress placed a duty on the comptroller to make the appraisal of the value of the stock. The choice of the comptroller to make the appraisal was not by chance. Who else other than the comptroller would have access to all of the records of the bank and the authority to demand and acquire information which might affect valuations?
In my judgment, Congress intended that the federal law would preempt the state law as to the details and the procedure of a merger of a national bank, including the procedure of determining the value of the stock of a dissenting trust of which the merging bank was one of the trustees. If not, why did Congress specify such a detailed and protective procedure? See Rogers v. First National Bank of St. George, 297 F. Supp. 641 (D.S.C.), aff'd 410 F.2d 579 (4th Cir. 1969).
The majority cites one other breach of the bank-trustee's responsibilitythe failure to buy stock in a corporation when the individual co-trustee recommends the purchase.
The bank in this instance gave many valid reasons why stock in the Birmingham Realty Company should not be purchased.
The trial court heard the evidence ore tenus. I do not find from the evidence that the decision of the trial court was plainly erroneous or manifestly unjust. Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9 (1974). In Dougherty v. Gulf Shores Motel, 292 Ala. 252, 254, 292 So. 2d 454, 456 (1974), this court said:
It is difficult to understand how the majority of this court can reach the issue of a breach of trust duties by John C. Henley, III, the individual co-trustee. The trial court didn't mention any such breach in its decree. There is no urging by cross appeal or otherwise from any party to this cause that this court should make such a finding.
I am in agreement with Justice Maddox in his treatment of the Attorney General issue.
I would affirm the decree of the trial court.
JONES, Justice.
Opinion corrected.
Application for rehearing overruled.
MERRILL, ALMON, and EMBRY, JJ., concur.
SHORES, J., concurs in the result.
HEFLIN, C.J., and MADDOX, J., dissent.
BLOODWORTH and FAULKNER, JJ., not sitting.
[1] 39 Stat. 889, as amended, 54 Stat. 1238, 8 U.S.C., § 155(a).
[2] The reference here to "fiduciary duties" is to be understood in the context of the law of trusts; the reference is not to those duties owed by a bank to its dissenting stockholders absent the trustee relationship. Indeed, as to ordinary stockholders who dissent from the merger, the Federal Act contemplates that a bank is east in an adversary rolea role abhorred by the law of trusts.
[3] Justice Cardozo, speaking for the majority in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928), said: "Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honestly alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the `disintegrating erosion' of particular exceptions. Wendt v. Fischer, 243 N.Y. 439, 444, 154 N.E. 303. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court." See also United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S. Ct. 294, 5 L. Ed. 2d 268 (1961). | November 6, 1975 |
57234f24-b221-4c0d-85a7-e57af1776809 | Gross v. State | 321 So. 2d 729 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 729 (1975)
In re Tommy Earl GROSS
v.
STATE.
Ex parte Tommy Earl Gross.
SC 1503.
Supreme Court of Alabama.
October 30, 1975.
P. Wayne Thorn, Birmingham, for petitioner.
No appearance for respondent.
ALMON, Justice.
Petitioner for Tommy Earl Gross for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Gross v. State, 56 Ala.App.___, 321 So. 2d 727.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. | October 30, 1975 |
66b2a816-d7ca-4b35-941d-c0d57475fe2b | Chambers v. Buettner | 321 So. 2d 650 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 650 (1975)
Lou Ella CHAMBERS, as Administratrix of the Estate of Terry Chambers, Deceased
v.
Emil BUETTNER et al.
SC 1161.
Supreme Court of Alabama.
November 13, 1975.
*651 Stephen K. Griffith and J. David Knight, Cullman, William W. Smith, Birmingham, for appellant.
Ralph Bland, and Finis E. St. John, Cullman, Clarence L. McDorman, Jr., Birmingham, for appellees.
EMBRY, Justice.
Appeal from judgment on directed verdict in favor of defendants in a wrongful death action arising out of a fire allegedly caused by a faulty electrical system. Motion for a directed verdict was granted at the close of plaintiff's case.
Plaintiff/appellant is Lou Ella Chambers, administratrix of the estate of Terry Chambers. Defendants/appellees are Alene T. Buettner, administratrix of the estate of Emil Buettner,[1] also d/b/a Buettner's Paint and Hardware Company, and the Utility Board of the City of Cullman (The Cullman Power Board).
There are three issues for decision: (1) Did Chambers offer a scintilla of evidence upon which reasonable men could differ which would support her cause of action against either the Cullman Power Board or Buettner? (2) Did the trial judge commit prejudicial error in refusing to allow Chamber's expert witness to testify as to what sections of the National Electric Code was violated by the defendant's electrical system? (3) Did the trial judge abuse his discretion in refusing to allow Chambers to recall a witness?
On Saturday, 15 July 1973, Terry Chambers visited the apartment of Wallace Logan and James Holmes, tenants of Buettner. The apartment was located over Buettner's Paint and Hardware Store. Emil Buettner was the owner and landlord. Terry Chambers and others who were at the apartment were listening to music and drinking beer. Sometime during the evening Chambers fell asleep on a couch in the living room of the apartment. During the early morning hours of Sunday a fire started in the building and spread to the apartment. When the fire was extinguished, Terry Chambers' body was discovered under a bed in the apartment bedroom.
*652 In an amended complaint,[2] plaintiff alleged that Emil Buettner was under a duty to rent the apartment in a reasonably safe condition for the protection of persons who were invited to come to the apartment. It further alleged Buettner violated this duty by negligently renting the premises in an unsafe or defective condition. The complaint also alleged the Cullman Power Board violated a duty to members of the public who would rightfully be upon the property by negligently furnishing electrical power service to the apartment when the apartment electrical system was unfit to receive such service.
The tendencies of the evidence showed: the fire originated in an electrical conduit which ran from meter boxes on the outside of the building to a fuse panel box in the upstairs hallway of the building; that box served a meeting hall which Buettner rented to a labor union; precise point of origin of the fire was in the conduit several inches below the fuse box; the insulation on the wires inside the conduit box broke down; this caused electricity to arc from the wire to the conduit; the intense heat generated by this arcing melted a hole in the conduit and caused the plywood wall behind the conduit to ignite.[3] There was some evidence that the outside meter boxes, the conduit, and the fuse panel box were improperly grounded. Such an improper grounding would allow arcing to continue instead of overloading the circuit and blow the fuses to shut off electrical power.
Further tendencies of the evidence were: the meter box on the outside of the building in which the apartment was located was improperly grounded; the supplier of electricity (Cullman Power Board) connects service at this box; visual inspection of the outside meter box and the electrical conduits originating from that box and entering the building should have indicated to the serviceman that the system as a whole was defective, therefore Chambers asserts that the Cullman Power Board knew or should have known that the system was defective, and power should not have been supplied to the building.
Chambers claims the Power Board committed actionable negligence in supplying electricity to a defective electrical system. The duty of a supplier of electricity to premises wholly owned and controlled by the recipient of service is well settled. A supplier who merely furnishes electricity is not responsible for defects in the system to which electricity is supplied. It is under no duty to inspect the system to which electricity is supplied. The duty of the supplier ends when the connection is properly made, when the supplier has no control over the premises, and the supplier is without actual knowledge of any defective or dangerous condition. City of Decatur v. Parham, 268 Ala. 585, 109 So. 2d 692 (1959). See also Chilton Butane Gas, Inc. v. Marcus, 289 Ala. 292, 267 So. 2d 140 (1972).
*653 If, on the other hand, the supplier of electricity also undertakes to install wiring, parts of the wiring system, or electrical appliances it is responsible for constructive knowledge of defects or insufficiences which present potential hazards. Alabama Power Co. v. Emens, 228 Ala. 466, 153 So. 729 (1934). Under the facts, disclosed by the evidence, in this case the Power Board could be liable only if it had actual knowledge of any defects in the electrical system to which it supplied electricity. The evidence was that the serviceman of Cullman Power Board who made the service connection to the meter box of the Buettner premises observed the box to be grounded. He was under no duty, under the evidence in this case, to further inspect as to the sufficiency of the grounding.
Careful review of the evidence, viewed most favorably to plaintiff Chambers, fails to turn up a scintilla to the effect that any agent of the Power Board had actual knowledge of any defect or insufficiency in the Buettner premises electrical system. Directing verdict for the Power Board was without error.
Chamber's complaint alleged Buettner had a duty to rent the premises in a reasonably safe condition for the protection of members of the public invited on the premises by the tenant; that Buettner negligently violated this duty owed to Terry Chambers who was visiting Buettner's tenants on the night of the fire.
The general rule of law with respect to guests of tenants is well settled. The landlord, in the absence of a covenant to repair, is liable only for latent defects, known to him at the time of the leasing, and which are concealed from the tenant. Davenport v. Bonner, 275 Ala. 131, 152 So. 2d 678 (1963). There was no proof in this case either that Buettner had agreed to make any needed repairs to the premises, a part of which were rented to Chambers' hosts on the fateful occasion, or that Buettner knew of and concealed any latent defect in the premises relating to the electrical system.
Chambers claims Buettner's liability can be properly bottomed on the rule of law with respect to injury to strangers caused by a defect in rented premises as expressed in Great Atlantic and Pacific Tea Co. v. Traylor. 239 Ala. 497, 195 So. 724 (1940). The instant case clearly is within the ambit of the rule of liability of landlord to tenant and his privies rather than the rule of liability of landlord to strangers.
Chambers further asserts that she was entitled to have her case submitted to the jury on the theory that the offending conduit ran to a panel box which served a union hall in the premises; that the conduit and panel box therefore were not part of the premises rented to Logan and Holmes (tenants of Buettner and invitors of decedent Chambers) hence in the exercise of reasonable care Buettner could and should have discovered the defect or insufficiency in the grounding of the conduit and owed a duty to decedent Chambers to correct any defect or insufficiency.
This theory must fail even if we assume, arguendo, that any defect or insufficiency present was "a dangerous condition" such as would invoke the rule set out in Pearce v. Sloss-Sheffield Steel & Iron Co., 211 Ala. 639, 101 So. 585 (1924). The rule as established in that case is also embodied in Restatement (Second) of Torts, § 361 (1965):
The two principal reasons the theory advanced by Chambers, last referred to, will not operate under the rule set out in the Restatement to permit a jury to pass on the liability of Buettner to Chambers are: (A) There was no evidence that Buettner retained control over that portion of the premises where the conduit was located that may have been insufficiently grounded. (B) There was no evidence that Buettner could have discovered the condition and the risk involved. As to B some evidence would be necessary which showed at least a rudimentary knowledge on the part of Buettner of proper methods of electrical wiring systems, grounding etc. so that any discoverable condition that existed would have alerted him to a risk of physical harm to anyone lawfully on the premises.
As is well known, a motion for a directed verdict at the close of the plaintiff's case tests the sufficiency of the plaintiff's evidence to entitle the claim for relief to be submitted to the jury for decision.
The trial and appellate courts must view the evidence in the most favorable light to the party against whom the motion was made. Alabama Power Co. v. Taylor, supra; 5A Moore's Federal Practice, 50.02[1], at 2325 (1975); in this case in the most favorable light to Chambers. Thus viewed the evidence was not sufficient to amount to a scintilla upon which the jury could reasonably reach a verdict against either the Power Board or Buettner.
During trial Chambers asked an expert witness the following question:
Objection to this question was properly sustained. Alabama Power Co. v. Williams, 222 Ala. 75, 130 So. 788 (1930); 7 Wigmore on Evidence, § 1955, at 85-86 (1940).
Chambers attempted to recall Cecil Langley, the electrician who installed the electrical system in Buettner's store. The Cullman Power Board objected.
Chambers made no offer of proof as to what he intended to show by recalling Langley nor did he attempt to disabuse the court of the assumption that the witness would be used merely in rebuttal. Both parties recognize that the right to recall a witness rests within the discretion of the trial court. The trial court did not abuse that discretion in this case.
There were no errors in the trial of this action which require reversal.
Affirmed.
BLOODWORTH, MADDOX, FAULKNER and ALMON, JJ., concur.
[1] Emil Buettner died while the case was pending. This action was revived against his administratrix prior to trial.
[2] A third defendant, Cecil Langley, the electrician who installed the system at Buettner's Store, was dismissed as a party defendant upon motion by plaintiff.
[3] Buettner and the Power Board attempted to elicit testimony that the fire originated in the apartment. However no evidence was presented which would support this hypothesis. | November 13, 1975 |
e96daf80-160f-47d9-b4a6-89b9aedb4148 | Martin v. Knight | 275 So. 2d 117 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 117 (1973)
James C. MARTIN, Jr.
v.
Mrs. W. S. KNIGHT a/k/a Sallie S. Knight.
SC 26.
Supreme Court of Alabama.
February 15, 1973.
Rehearing Denied April 5, 1973.
*118 Howell, Johnston, Langford & Finkbohner and John L. Lawler, Mobile, for appellant.
Edward P. Turner, Jr., Chatom, for appellee.
COLEMAN, Justice.
The respondent appeals from a decree for complainant in a proceeding for declaratory decree to determine the owner of a certain interest in the oil, gas, and minerals in, on, and under certain land in Choctaw County.
Determination of the issue presented requires consideration of two deeds. The first is a warranty deed, dated December 23, 1939, executed by J. C. Bolinger, Trustee, as grantor, to James C. Martin, the respondent, as grantee. The deed will be referred to as the Bolinger deed. By its terms, grantor conveys to grantee the lands described. Immediately following the description of the land conveyed, the deed recites:
The right to receive one-fourth of all bonuses and royalties, which passed to the grantee as set out in last quoted proviso in the deed beginning with the word "however," is the subject matter of this suit. The right thus acquired by the grantee will sometimes be referred to as a non-participating royalty. A discussion of the nature of such an interest may be found in Texas Law Review, Vol. XXVI, page 569, in an article by Lee Jones, Jr. We express no opinion as to the nature of such an interest.
Martin, the respondent, who is the grantee in the Bolinger deed, subsequently *119 conveyed the same land to Knight, the complainant, by warranty deed dated December 27, 1939. The question is: Did the respondent, by executing the second deed, convey the non-participating royalty to complainant; or, did the respondent retain the non-participating royalty for himself?
The second deed recites that respondent and wife, for recited consideration, do grant, bargain, sell, and convey to complainant the described land. Immediately following the description of the land, the deed recites:
The remainder of the deed sets out the covenants of warranty and the testimonium clause.
It is noted that the grantee named in the Bolinger deed is James C. Martin, and the grantor named in the second deed is James C. Martin, Jr. It appears without dispute that James C. Martin and James C. Martin, Jr., are one and the same person.
In support of his contention that he retained the non-participating royalty, respondent argues to the following effect. He says that there is no problem in construing the Bolinger deed and we are inclined to agree. Referring to the second deed, respondent says:
The word "all" does not appear before the words, "oil, gas and mineral rights." If it had been the intention of the respondent to reserve "all" the oil, gas, and minerals, he could have inserted the word "all," but he did not do so. Instead, the respondent proceeded to describe the reservation by referring to the Bolinger deed.
Respondent says that the rule is that in deeds, where two clauses are inconsistent, the earlier prevails over the later clause. We are not inclined to apply that rule, but if we did, respondent could not prevail. Prior to the reservation provision in the second deed, the granting clause and the habendum clause recite that respondent conveys the land, without reservation or exception, to ". . . the said party of the second part, her heirs and assigns in fee simple."
*120 Respondent appears to attach some importance to the fact that the word "reserved" is used instead of the word "excepted." There appears to be some technical difference between reservations and exceptions, and we do not disregard that difference but find no significance in that difference or distinction in the instant case. The Supreme Court of Mississippi has said and we agree that:
The respondent contends for a construction of the second deed favorable to him. He was the grantor in said deed. A different construction favors the grantee.
It must be conceded that the grantor in the Bolinger deed did reserve and except all the oil, gas, and mineral rights in the land except the one-fourth non-participating royalty which was conveyed to respondent. Respondent did not own any interest in three-fourths of the oil, gas, and minerals in the land. In order to protect his warranty and in order to convey only what he did own, it was necessary for him to make some reservation or exception of oil, gas, and mineral rights. This he did. He did so by reciting in the second deed that ". . . there is reserved from this conveyance, oil, gas and mineral rights, with the same (Emphasis Supplied) provisions as contained in that certain conveyance from . . . Bolinger . . . wherein the grantee in said conveyance . . . would be entitled to received the equal one-fourth of all bonuses and royalties under any lease contract."
The second deed recites that the reservation provisions in the deed to complainant are ". . . the same provisions as contained in . . ." the Bolinger deed. Respondent does not stop there. He goes on to point out that part of the Bolinger provisions ". . . wherein the grantee in said conveyance. . . would be entitled to received one-fourth of all bonuses and royalties. . ." By the provisions of the Bolinger deed, the grantee therein, the respondent, received the non-participating royalty. If the "same provisions" are to control in the second deed, then the grantee therein, the complainant, must receive the same non-participating royalty.
If respondent intended to retain the non-participating royalty for himself, he could have said so. As was said by the Court of Civil Appeals of Texas with respect to a mineral reservation:
. . . . . .
". . .
In the paragraph of the second deed immediately following the paragraph dealing with the mineral reservation, respondent had no difficulty in clearly reserving to himself the title to and right to remove certain timber from the land for a period of two years.
The last construction of the second deed is favorable to the grantee therein; i. e., the complainant. The last construction favoring the grantee is at least as reasonable as the construction contended for by the grantor. This court has said:
Following the foregoing authorities, even if it be conceded that the reservation provision of the second deed is ambiguous, it follows that the deed must be construed in favor of the grantee and against the grantor.
Testimony was taken ore tenus before the trial court whose province it was to consider the same and determine the inferences to be drawn therefrom; and the findings of fact by the trial court will not be disturbed unless plainly and palpably wrong. Under this rule, the decree of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MADDOX, FAULKNER and JONES, JJ., concur.
MERRILL, HARWOOD and BLOODWORTH, JJ., and LAWSON, Supernumerary Justice, dissent.
LAWSON, Supernumerary Justice (dissenting):
J. C. Bolinger died in 1953. In 1955 Franklin C. Evans was named to succeed Bolinger as trustee of certain oil, gas and mineral interests in several thousand acres of land. The surface of that land, as well as the oil, gas and mineral interests, apparently at one time had belonged to Choctaw Lumber Company. The surface rights were sold, but interests in the oil, gas and minerals under the surface had been retained and at the time Evans was named trustee such interests were owned apparently by "the former stockholders of Choctaw Lumber Company."
In November, 1964, Evans, as trustee, executed an oil, gas and mineral lease which covered 480 acres of land, 120 of which was described in the deeds under consideration in this case. Roy J. Anderson was the lessee and he paid to Evans, as trustee, a bonus of $15 an acre, making a total payment of $4,800. After that payment was made, Evans, in accordance with the directions from the lessee, Anderson, transmitted to Mrs. Knight the sum of $450, which represented one-fourth of the bonus due by Anderson on the 120 acres of land. Martin was unaware of that transaction.
Anderson's rights under his lease terminated in November of 1965. On August 22, 1966, Evans, as trustee, executed a lease, apparently an oil, gas and mineral lease, to Placid Oil Company covering more than six thousand mineral acres. The bonus paid by Placid was $5 an acre. The Placid lease covered "possibly a hundred mineral acres" involved in this litigation. Evans instructed Placid's representative ". . . to pay me what I am entitled to and pay anybody else . . . ." Evans did not remit to anyone else any part of the bonus paid to him.
In early 1967 Placid undertook to pay the bonus due on that part of the oil, gas and mineral interests leased to it by Evans, as trustee, in 1966, which were covered by the deeds in question. Placid first issued a check or draft to Martin, the payment of which was conditioned on Mrs. Knight signing a release of any interest she might have in the bonus. Thereafter, Placid issued a check to Mrs. Knight, the payment *122 of which was conditioned on Martin executing a written release of any interest he might have in the bonus.
Neither Mrs. Knight nor Martin would execute the release, so the bonus was not paid by Placid.
As a result of the disagreement between Mrs. Knight and Martin, this litigation ensued. Mrs. Knight's bill of complaint was filed on June 9, 1967. Martin filed on July 18, 1967, a plea in abatement, which was overruled with his consent on January 19, 1968. Martin filed a general demurrer to the bill of complaint on August 16, 1968. The record does not reflect that the court ruled on the demurrer. Martin also filed on August 16, 1968, an answer which he prayed be taken as a cross bill. No answer was filed to the cross bill and the trial court made no ruling thereon. The cross bill is not involved on this appeal. The cause came on for an ore tenus hearing on October 1, 1968. The taking of testimony was not concluded on that date. A subsequent hearing was held wherein the testimony was taken ore tenus on July 14, 1969. Final decree was rendered on December 20, 1971. An appeal was taken to this court by the respondent, Martin, on February 10, 1972, and the cause was submitted here on October 17, 1972.
In substance the prayer of Mrs. Knight's bill was that the court decree that Martin "has no right, title, interest in or claim to the oil, gas or other minerals in, on or under" the subject lands, or "any right to receive the equal one-fourth of all bonuses and royalties under any lease," and that complainant, Mrs. Knight, "is the owner of and has the sole and exclusive right to receive the equal one-fourth of all bonuses and royalties under any lease . . ." affecting said 680 acres of land; that the court construe the deed from Martin to Mrs. Knight, dated December 27, 1939.
The trial court decreed substantially in accordance with the prayer of Mrs. Knight's bill, that is, (1) Martin did not reserve unto himself in the deed of December 27, 1939, any of the oil, gas and other minerals in or under the subject lands; (2) Martin is not entitled to receive the equal one-fourth of all bonuses and royalties which are to be paid under any lease; (3) all of the interest which Martin acquired from Bolinger under the deed of December 23, 1939, "passed to and is owned by the complainant . . ."; (4) Mrs. Knight, the complainant, is the owner of and has the right to receive an equal one-fourth of the bonuses and royalties under any lease made covering the oil, gas and other minerals in or under the subject lands.
The argued assignments of error challenge the correctness of the trial court's declarations as above indicated.
The contention made by appellee to the effect that the deed from Bolinger to Martin conveyed to Martin not only the fee simple title to the subject land, but the fee simple title to the oil, gas and minerals under that land and that the deed from Martin to Knight did likewise because the provisions which relate to the reservation of oil, gas and minerals in both deeds were in clauses which followed the granting clause, is without merit.
The last mentioned contention is in conflict with the holding of this court in Holmes v. Compton, 273 Ala. 554, 142 So. 2d 697, followed in Hays v. Hagen, 274 Ala. 128, 145 So. 2d 818. In the deed involved in the Holmes case, supra, the reservation of oil and minerals was contained in a clause which followed the granting clause. In Holmes it is said in part as follows:
For cases in addition to McCall v. Nettles, supra, which give effect to reservations excepting oil, gas or mineral interests, see Alabama Fuel & Iron Co. v. Broadhead, 210 Ala. 545, 98 So. 789; Buckelew v. Yawkey, 247 Ala. 304, 24 So. 2d 133; Crump v. Crump, 261 Ala. 504, 74 So. 2d 713.
I am of the opinion that when the two deeds are considered together, a clear intention appears that the grantors therein did not intend to convey a fee simple title to the oil, gas and mineral rights beneath the surface of the lands described in the deeds.
The ultimate question in this case is, What did the grantor, Martin, mean in his deed to Knight under date of December 27, 1939, by the use of the following language:
Mrs. Knight's interest could be no greater than the interest which Martin derived from the Bolinger-to-Martin deed under date of December 23, 1939; hence, I think it not inappropriate to express my views as to the scope of that conveyance.
Martin obtained a fee simple title to the surface rights of the subject property from Bolinger. He did not, in my opinion, obtain fee simple title to the oil, gas and minerals beneath the surface. Bolinger retained the fee simple title to the oil, gas and minerals in place and the exclusive leasing privilege. Martin got nothing more than the right to receive from the lessee of the mineral estate "one-fourth (¼) of all bonuses and royalties."
In Summers, Oil and Gas, Volume 3 A, § 571, it is said:
Also, see Summers, Oil and Gas, Volume 3 A, § 586; Manual of Oil and Gas Terms, Williams and Myers, p. 33.
The nature of an oil and gas lessor's royalty interest has been defined by different courts in various ways. I deem it unnecessary to say more than that the word "royalty" as used in the deeds under consideration here has reference to the mineral owner's share of production. See Summers, Oil and Gas, Volume 3 A, Chapter *124 20; Manual of Oil and Gas Terms, Williams and Myers, p. 342.
The language last quoted above from the 1939 deed from Martin to Knight, which I will refer to as the reservation clause, must be construed so as to resolve doubts in favor of the grantee and against the grantor. Crump v. Crump, supra.
Even when so considered, I am constrained to the conclusion that the only reasonable construction of that clause is that it reserves for the grantor, Martin, the rights in the oil, gas and minerals which he received in the deed from Bolinger to him; that is, Martin reserved the right to receive from any lessee of the oil, gas and minerals under the subject lands "one-fourth (¼) of all bonuses and royalties."
The language of the reservation clause in the Martin-to-Knight deed is not identical to the so-called reservation clause in the Bolinger-to-Martin deed; consequently, I do not entertain the view that the reservation clause in the Martin-to-Knight deed was designed only for the purpose of describing the interest owned by Martin and to protect his warranty. In this respect the case of instant concern is distinguishable on a pivotal point from the case of Salmen Brick & Lumber Co. v. Williams, 210 Miss. 560, 50 So. 2d 130, upon which the trial court placed considerable reliance in the rendition of its decree. Likewise, I think the other cases cited by the trial court are distinguishable in the same respect and in other respects from the facts of the instant case. See Garraway v. Bryant, 224 Miss. 459, 80 So. 2d 59; Merchants & Manufacturers Bank v. Dennis, 229 Miss. 447, 91 So. 2d 254; Brannon v. Varnado, 234 Miss. 466, 106 So. 2d 386; Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878.
I entertain the view that, Mrs. Knight, did not receive any interest in the oil, gas and minerals in the subject lands by virtue of the deed to her from Martin under date of December 27, 1939, and, consequently, would reverse the decree of the trial court and remand the cause for further proceedings.
MERRILL, HARWOOD and BLOODWORTH, JJ., concur. | February 15, 1973 |
bf4d48ce-aebe-4597-9932-c1b59985670a | Doctors Hospital of Mobile, Inc. v. Kirksey | 275 So. 2d 651 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 651 (1973)
DOCTORS HOSPITAL OF MOBILE, INC., a corporation,
v.
Lavert D. KIRKSEY.
DOCTORS HOSPITAL OF MOBILE, INC., a corporation,
v.
Clyde H. KIRKSEY.
SC 2, 3.
Supreme Court of Alabama.
February 1, 1973.
Rehearing Denied March 15, 1973.
*652 A. Neil Hudgens, Peter V. Sintz, Mobile, for appellant.
Reynolds & Lauten, Mobile, for appellees.
MADDOX, Justice.
Defendant-appellant, Doctors Hospital of Mobile, Inc., appeals from judgments in the sum of $60,000 and $15,000 entered in two suits commenced in the Circuit Court of Mobile County, one for personal injuries by Lavert D. Kirksey (plaintiff-appellee-wife) and the other for loss of services by Clyde H. Kirksey (plaintiff-appellee-husband). The two cases were consolidated for trial in the Mobile County Circuit Court, and the jury returned verdicts in favor of Lavert Kirksey for the sum of $60,000 and in favor of Clyde Kirksey for the sum of $15,000. Appellants' motions for a new trial in both cases were denied. This appeal followed. The cases were consolidated on appeal by order of this court.
Appellant urges error by the trial court in numerous particulars. Several of the assignments are well taken. All of the assignments will not be considered here.
Appellant's main argument is made in connection with the giving by the trial court of written instructions to the jury requested by the plaintiffs, which the defendant claims were erroneous. Plaintiff claimed that a nurse was negligent in administering a postoperative injection, resulting in severe damage to one of her legs.
The giving of the following charge requested by plaintiffs is assigned as error:
*653 The giving of this charge is reversible error. In Mobile Infirmary v. Eberlein, 270 Ala. 360, 119 So. 2d 8 (1960), the giving of a similar requested charge was held to be reversible error. In Eberlein, the charge was as follows:
The court in Eberlein, in determining Charge 1 in that case to be erroneous, said:
The giving by the trial court of Charge 4 was erroneous, and that charge should not have been given. The charge submitted a question of law to the jury and the giving of the charge is reversible error. Eberlein, and cases therein cited.
The trial court gave at plaintiff's request the following written Charge 13:
Charge 13 is erroneous, in that, like Charge 4 already discussed, it uses the term "competent medical care" to describe the obligation which Doctors Hospital owed to patient Kirksey. This court has on several occasions spelled out the duty which a hospital owes to a patient. Generally, the measure of duty owed has been stated as that degree of care, skill, and diligence used by hospitals generally in that community. See Mobile Infirmary v. Eberlein, supra; South Highlands Infirmary, Inc. v. Galloway, 233 Ala. 276, 171 So. 250 (1936).
Appellees argue that the giving of Charges 4 and 13 should not work a reversal. They use two main arguments. One is that other requested written charges were given which adequately and correctly defined the duty owed by the hospital and that the trial court's oral charge also correctly defined the duty owed by the hospital. Secondly, appellees say that hospitals should no longer be judged solely by the *654 standard of care used by other hospitals generally in the community. Both arguments are persuasive but not convincing. This court has said on several occasions that the giving of an erroneous and prejudicial charge at the request of a party ordinarily works a reversal, though the court correctly charges the jury otherwise. Isay v. Cameron, 285 Ala. 164, 229 So. 2d 916 (1969); Cf. Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972). On the second point, the law of Alabama does not support appellees' argument that hospitals should no longer be judged solely by the standard of care used by hospitals generally in the community. In this court's recent case of Underwood v. Holy Name of Jesus Hospital, 289 Ala. 216, 266 So. 2d 773 (1972), this court said:
This court, by setting out this general rule, recognizes exceptions. In South Highlands Infirmary, Inc. v. Galloway, 233 Ala. 276, 171 So. 250 (1936), the court cautioned:
Charge 13 here predicates liability of the appellant on the breach of a "duty to furnish competent medical care" whereas the duty is to exercise "that degree of care, skill and diligence used by hospitals generally in the community." The charge misstates the measure of duty as a predicate for the appellant's liability and such misstatement constitutes reversible error. Thompson v. Havard, 285 Ala. 718, 235 So. 2d 853 (1970); Reaves v. Maybank, 193 Ala. 614, 69 So. 137 (1915).
Charge 10, given by the trial court at the request of appellee, is defective for the same reasons as is Charge 13 discussed above. This charge reads:
This charge attempts to define actionable negligence for which the hospital would be liable. However, the charge defines the duty of a nurse-employee of the appellant "to know the fatal dosage of all drugs and the danger of an overdose of any type of drug and the proper way to administer any drug." [Emphasis supplied.][1] In South Highlands Infirmary, Inc. v. Galloway, 233 Ala. 276, 171 So. 250 (1936), the court allowed a charge wherein the duty of a *655 nurse was to act as a "reasonably prudent, careful, skilled and diligent nurse would have done under the same or similar circumstances." But, Charge 10 does not read like the charge in South Highlands Infirmary, Inc. Charge 10 omits the necessary element of "duty" which makes the charge a misstatement of the law which constitutes reversible error under Thompson v. Havard, supra.
Having determined that the trial court's giving of Charges 4, 10 and 13 constitutes reversible error in the instant case, other errors assigned, some of which we believe have merit, will not be discussed here with the hope that they will not occur on a new trial. The judgments of the trial court are due to be reversed and remanded in both cases.
Reversed and remanded.
MERRILL, HARWOOD and McCALL, JJ., concur.
HEFLIN, C. J., concurs in the result.
[1] This charge seems to be excerpted from an article by Prof. Arthur F. Southwick, The Hospital's New Responsibility, 17 Clev.-Mar.L.Rev. 146, 156, wherein he wrote:
"It is perfectly clear that nurses are employees of the institution when performing their routine nursing functions. They are in control of the hospital even when performing a professional act. Therefore, in most instances, the hospital is clearly liable for a nurse's medication error and it would seem that nurses must know the fatal dosage of all drugs and be familiar with the usually acceptable rules and routes of drug administration." | February 1, 1973 |
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