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672cec34-94d2-4979-95ea-e8765554f0e9 | Windsor v. General Motors Acceptance Corporation | 323 So. 2d 350 | N/A | Alabama | Alabama Supreme Court | 323 So. 2d 350 (1975)
Savannah WINDSOR et al.
v.
GENERAL MOTORS ACCEPTANCE CORPORATION et al.
SC 1294.
Supreme Court of Alabama.
November 20, 1975.
J. Wm. Thomason, Bessemer, for appellants.
*351 Huie, Fernambucq, Stewart & Smith, Birmingham, for appellees.
MERRILL, Justice.
This appeal is from a judgment in favor of the defendants in a suit arising out of the repossession of an automobile by the finance company. We affirm.
On September 27, 1969, Savannah Windsor purchased a 1970 Buick Skylark from Jim Burke Buick in Birmingham. She signed an installment sales contract which was later assigned to General Motors Acceptance Corporation (GMAC). She made a downpayment of $525.00 and agreed to pay the balance in thirty-six monthly installments of $141.93. The debt was refinanced on December 10, 1971. Between December, 1971 and February, 1973, her payments were delinquent repeatedly. On February 16, 1973, GMAC repossessed the automobile.
Savannah Windsor then brought an action against GMAC for conversion of her automobile, invasion of privacy, and conversion of certain miscellaneous personal property. Lue Bertha Windsor, Savannah's mother, brought an action against GMAC for "injuries suffered as a result of the Defendants intentionally engaging in a campaign to harass and intimidate her in connection with alleged arrearage of her daughter's installment agreement with General Motors Acceptance Corporation." The two actions were consolidated for trial. The trial judge directed a verdict in favor of the defendant in Lue Bertha's case. The only issue submitted to the jury in Savannah's case was whether or not there was a conversion of the personal property which Savannah claimed was in the car at the time it was repossessed. The jury returned a verdict in favor of GMAC. Savannah and Lue Bertha Windsor appeal.
Assignments of Error 4, 6, 10, and 19 are that the trial judge erred in granting defendants' motion for a directed verdict in Lue Bertha Windsor's case. Lue Bertha contends that GMAC harassed her and invaded her privacy in its efforts to collect Savannah's debt.
In Norris v. Moskin Stores, 272 Ala. 174, 132 So. 2d 321, it was said:
The pertinent evidence produced at trial is as follows: Savannah Windsor lived at home with her mother, Lue Bertha. Bill Davis, a GMAC representative in charge of accounts, contacted Savannah, either by telephone or in person at her home, about fifteen or twenty times over a one or two-year period prior to repossession about her delinquent payments. Davis did not call or come by except when Savannah was behind on her payments. Sometimes Davis would call when Savannah was not at home. He came by the house several times *352 in spite of the fact that Lue Bertha had told him over the telephone that Savannah was not there. Lue Bertha testified that he "would talk down" to her, that after he called she "just went crazy, like to have died," and that on one occasion she "went to the hospital and stayed there." On cross-examination, Lue Bertha testified as follows:
From all the evidence, the trial court was convinced that there was not a scintilla of evidence in support of Lue Bertha's allegation that GMAC unreasonably invaded her privacy in an attempt to collect Savannah's debt. A directed verdict in favor of GMAC naturally followed and we find no error in that action.
Assignments of Error 12 and 13 are that the trial judge erred in Savannah Windsor's case when he, in effect, directed a verdict in favor of GMAC as to the invasion of privacy issue.
In Norris v. Moskin, supra, we cited with approval Gouldman-Taber Pontiac v. Zerbst, 213 Ga. 682, 100 S.E.2d 881, and Tollefson v. Safeway Stores, (Colo.) 142 Colo. 442, 351 P.2d 274. In Zerbst, it was held that a single letter written by the defendant-creditor to the plaintiff-debtor's employer, merely notifying him of the debt, did not constitute an actionable invasion of plaintiff's privacy. In Safeway, a defendant bill collector informed plaintiff's wife that if the debt were not paid, plaintiff's job would be in jeopardy. He also contacted plaintiff's superiors, seeking to bring pressure on plaintiff to pay. The Supreme Court of Colorado held that on these facts, plaintiff had no cause of action for invasion of privacy, pointing out that "there was no campaign of continuous harassment, no attempt to vilify or expose plaintiff to public ridicule, and no effort to cause plaintiff to lose his position."
In the present case, after Bill Davis repossessed the car, he drove to the Alabaster police station. He told the dispatcher what he had done in the event the car was reported as having been stolen. Later that same day, a policeman went by the school where Savannah was employed. There, in the presence of the assistant principal, she was informed that her car had been repossessed. The evidence also showed that Bill Davis asked James McQueen, who was not *353 a regular employee of GMAC, to inventory and return Savannah Windsor's personal property which was in the car at the time it was repossessed.
From the foregoing authority and the facts presented at trial, it is evident that there was not a scintilla of evidence in support of the claimed invasion of privacy. There was no error in directing the verdict on the invasion of privacy issue.
Assignments of Error 11 and 21 are that the trial judge erred in charging the jury that "from all the evidence in the case the repossession of the automobile was not wrongful."
Title 7A, § 9-503, UCC, gives a secured party the right to take possession of collateral after default. Savannah Windsor admitted that she was one payment behind at the time that the automobile was repossessed. There was no error in this instruction.
Plaintiff, Savannah Windsor, also contended that some of her personal belongings in the car were not returned.
The installment sales contract provided as follows:
Since the removal of personal property was authorized by contract, the original taking was not wrongful per se, and the jury found in favor of defendant on this issue.
Some assignments of error deal with portions of the trial court's oral charge. ARCP 51 provides, in part, as follows:
The record fails to show compliance with this part of ARCP 51 and any error connected with these charges must be deemed waived. See Barksdale v. Pendergrass, 294 Ala. 526, 319 So. 2d 267.
Affirmed.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | November 20, 1975 |
47e10fd5-3f13-439f-92cf-4c2def07ac23 | Loeb and Company, Inc. v. Schreiner | 321 So. 2d 199 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 199 (1975)
LOEB AND COMPANY, INC., a corp.
v.
Charles SCHREINER.
SC 850.
Supreme Court of Alabama.
October 2, 1975.
Rehearing Denied November 6, 1975.
James W. Garrett, Jr. and Watkins C. Johnston, Montgomery, for appellant.
Vaughan H. Robison, and Philip H. Butler, Montgomery, for appellee.
*200 ALMON, Justice.[*]
This is an appeal from a judgment of the Circuit Court of Lowndes County. The court decreed that the plaintiff and the defendant entered into an oral contract for the purchase and sale of one hundred fifty bales of cotton but that the contract was unenforceable under the Alabama Uniform Commercial Code because the defendant was not a "merchant" as that term is used and defined.
The plaintiff-appellant, Loeb and Company, Inc., is engaged in the marketing of raw cotton. James L. Loeb of Montgomery is President of the company and has bought cotton from the defendant-appellee, Charles Schreiner, for the past four or five years. Charles Schreiner is a cotton farmer and has been engaged in the farming of cotton and other crops since 1963.
Following a conversation on the 18th or 20th of April, 1973, with regard to the price paid by appellant company to Marlowe Reese, a neighbor of appellee, appellee telephoned appellant on April 23 and asked if the price paid Reese was available to him. He received from the president of appellant company a statement that he would pay appellee the same price. Appellant maintained at trial that appellee orally contracted with him during the telephone conversation to sell appellant company one hundred fifty bales of cotton. Appellee admitted that there were negotiations but maintained that he never agreed to sell the one hundred fifty bales.
The date, parties, terms and conditions of the alleged contract to sell were confirmed in the records of appellant company on April 23, 1973, and two copies of a confirming statement were mailed to appellee. Appellee received the confirming statement but neither signed it nor returned it, nor in any manner took exception to it until four months later when appellant telephoned him inquiring the whereabouts of the statement. In the meanwhile the price of raw cotton had risen from the price in the alleged contract of 37 ¼ cents to the middle 80 cents.
When appellant company telephoned appellee and inquired about the confirming statement, appellee said that he did not intend to sign and return it and told appellant to discuss the matter with his attorney.
The trial court found that there was an oral contract but that the contract was unenforceable under the Alabama Uniform Commercial Code because the appellee was not a merchant as that term is used in Tit. 7A, §§ 2-104 and 2-201, Code of Alabama, 1940, Recompiled 1958.
Tit. 7A, § 2-201 is the section which sets out the statute of frauds for Article 2 of the Uniform Commercial Code. It governs all contracts for the sale of "goods." Cotton is included within the definition of "goods" as defined by the Code. Cox v. Cox, 292 Ala. 106, 289 So. 2d 609 (1974). § 2-201 provides in pertinent part as follows:
Appellant contends that the trial court erred in finding that the appellee cotton farmer was not a merchant and that § 2-201(2) was not applicable. If appellee is not a "merchant," § 2-201 would act as a bar to the enforcement of the contract in question. However, if appellee is a "merchant," he would be liable on the contract because he did not within ten days give notice of objection to appellant's confirming statement. Tit. 7A, § 2-104(1) defines "merchant" as follows:
Only a few courts have considered the question of whether a farmer is a "merchant." In Cook Grains v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965), the Arkansas Supreme Court held that a soybean farmer was not a merchant when he was merely trying to sell the commodities he had raised. The court stated that there was not
In Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871 (1973), the Third Division of the Appellate Court of Illinois stated in dictum that a farmer in the business of growing grain was not a "merchant" with respect to the merchandising of grain. However, in Campbell v. Yokel, 20 Ill.App.3d 702, 313 N.E.2d 628 (1974), the Fifth District of the Appellate Court of Illinois dealt with a case that involved an action against some soybean farmers on an alleged breach of an oral contract for the sale of soybeans. The court held that the soybean farmers, who had grown and sold soybeans for several years were "merchants" when selling crops and were therefore barred by § 2-201(2) from asserting the statute of frauds as a defense.
One court has suggested that whether or not a farmer is a "merchant" within the meaning of § 2-104 should turn upon whether or not he has engaged in a particular type of sale in the past. In Fear Ranches, Inc. v. Berry, 470 F.2d 905 (10th Cir. 1972), a breach of warranty case, the court held that where the defendant cattle farmers made a sale to a non-meatpacker for resale when they had previously sold all of their cattle to meatpackers, they were not "merchants" with respect to the sale to the non-meatpacker. The court felt that the sale of cattle for resale was a sale of a different type of goods and made up a different type of business than the sale of cattle to meat-packers.
We hold that in the instant case the appellee was not a "merchant" within the meaning of § 2-104. We do not think the framers of the Uniform Commercial Code contemplated that a farmer should be included among those considered to be "merchants."
In order for a farmer to be included within the § 2-104 definition of "merchants," he must do one of the following:
Since the farmer in the instant case did not qualify as a merchant under 3 above, he would have to qualify under 1 or 2. It is not sufficient under 2 that one hold himself out as having knowledge or skill peculiar to the practices or goods involved, he must by his occupation so hold himself out. Accordingly, a person cannot be considered a "merchant" simply because he is a braggart or has a high opinion of his knowledge in a particular area. We conclude that a farmer does not solely by his occupation hold himself out as being a professional cotton merchant.
The remaining thing which a farmer might do to be considered a merchant is to become a dealer in goods. Although there was evidence which indicated that the appellee here had a good deal of knowledge, this is not the test. There is not one shred of evidence that appellee ever sold anyone's cotton but his own. He was nothing more than an astute farmer selling his own product. We do not think this was sufficient to make him a dealer in goods.
The official comment to § 2-104 states in part as follows:
Although a farmer might sell his cotton every year, we do not think that this should take him out of the category of a "casual seller" and place him in the category with "professionals."
If indeed the statute of frauds has, as claimed, permitted an injustice, it is a matter which addresses itself to the legislature.
The judgment is due to be and is hereby
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, JONES, SHORES 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 tape recordings of oral argument. | October 2, 1975 |
34743ea7-303e-4615-801f-39b768493898 | Leeth v. Roberts | 322 So. 2d 679 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 679 (1975)
Grace LEETH, as Administratrix of the Estate of O. J. Leeth, Deceased
v.
Clarence Alfred ROBERTS, Jr., etc.
SC 1350.
Supreme Court of Alabama.
November 20, 1975.
*680 James S. Hubbard, and Charles L. Parks, Anniston, for appellant.
J. M. Sides, Anniston, for appellees.
JONES, Justice.
This is an appeal from a directed verdict in favor of Anniston Lincoln Mercury, Inc., and its agent, Clarence Alfred Roberts, Jr., in a wrongful death action brought against them by Grace Leeth, as Administratrix of the estate of O. J. Leeth.
There are two issues for review: First, does evidence that the defendants' automobile came to a stop one to two feet across the center line following a head-on collision on a two-lane road make out a jury question on the issue of negligence? Second, must testimony concerning the position of vehicles after a collision be corroborated by proof that the vehicles had not been moved between the time of the accident and the time of the observation by a witness in order to be admissible?
We answer both questions in favor of the appellant; therefore, we reverse and remand for a new trial.
Because this case must be retried on remand, we consider it unwise to discuss the evidence extensively. Suffice it to say that the left front end of the car driven by plaintiff's intestate collided with the left front end of the car driven by Roberts in a curve on Highway 9 near Lineville, Alabama, on January 25, 1973. Plaintiff's intestate died instantly as a result of the collision. Appellant brought this wrongful death action urging the theory that Roberts was hugging the inside of the curve in violation of the rules of the road.
On direct examination, the plaintiff called Roberts who testified that he saw the Leeth car coming toward him and he began to pull his car to the right when the collision occurred. He also testified that immediately after the head-on collision the front end of his car came to rest one or two feet across the center line of the highway, i.e., to his left of the center line. He then drove his car across the road and parked his car off the paved surface onto the shoulder of the highway.
At the close of the plaintiff's case, the trial Judge granted the defendant's motion for a directed verdict.
The propriety of this ruling is embraced in the issue whether Roberts' testimony that he was pulling right immediately before the collision and that his car came to rest across the center line after the collision makes out a jury question on negligence. The Alabama case of Smith v. Tripp, 246 Ala. 421, 20 So. 2d 870 (1945), is directly on point. In that case, the only competent evidence on the issue of liability showed "that the driver of the defendants' truck pulled to the right immediately before the collision" and that his truck came to rest with the back corner of the trailer slightly over the center line. The Court held that this testimony was enough to make out a jury question (and, indeed, to sustain a jury verdict) on whether the defendants' truck was hugging the inside of the curve immediately before the collision. We hold that Tripp is authority for this situation; therefore, it was error to grant a directed verdict for the defendant.
Because the evidentiary question will likely arise again upon retrial of this cause, we will now treat that issue.
*681 Plaintiff called Wayne Watts as a witness. Watts had followed the police to the accident scene. The plaintiff asked Watts where the vehicles were located at the scene of the accident. The trial Judge excluded this testimony because the plaintiff could not prove that the automobiles had not been moved between the time of the collision and the time Watts arrived on the scene. Both parties rely upon the cases of Holley v. Josey, 263 Ala. 349, 82 So. 2d 328 (1955), and Malone v. Hanna, 275 Ala. 534, 156 So. 2d 626 (1963), to support their positions on this appeal.
The Josey case, which was quoted at length and approved in the Hanna case, affirmed the trial Court's admission of evidence concerning the location of objects found at the scene of an automobile accident even though the proponents could not prove that the objects were in the same place when the witnesses saw them as they were at the time of the accident. The Josey court cited and distinguished three Alabama cases: S. H. Kress & Co. v. Barratt, 226 Ala. 455, 147 So. 386 (1933); Bradley v. Deaton, 208 Ala. 582, 94 So. 767 (1922); Southern Railway Co. v. Lefan, 195 Ala. 295, 70 So. 249 (1915). See also Birmingham Union Railway Co. v. Alexander, 93 Ala. 133, 9 So. 525 (1890).
The Josey court stated that the cited cases held "in substance, that if a party, in an effort to show negligence, attempts to introduce evidence as to conditions before or after the time of the accident, it must be first made to appear that the conditions were substantially the same on the two occasions"; but it held that "the rule as expressed by these cases is limited to where it is an attempt to show negligence".
The appellees argue that this language justifies the trial Judge's exclusion of Watts' testimony because it was offered in an effort to prove the plaintiff's allegation of negligence. This is not a proper interpretation of Josey.
To understand the rule, it is necessary to compare the three cases Josey distinguished with the holding of Josey and Hanna. The cases cited in Josey involved situations in which the negligence sought to be proved was a defective condition in the defendant's property (for example, an improperly secured awning or a burnt out trailer light). In such cases, the ultimate issue of liability is whether the property was defective at the time of the accident; that is to say, similarity of circumstances is a necessary predicate when the existence of an object or condition at a given time is in issue or is the gravamen of the action or defense.[1] Therefore, any testimony concerning the condition of the property either before or after the accident is highly persuasive and should be corroborated by proof that the condition had not changed during the interval to avoid misleading the jury.[2]
Unlike those cases, Josey, Hanna, and the instant case involved testimony concerning the position of objects or vehicles at the scene of an automobile accident. Here, this testimony was obviously not offered in an effort to prove negligence. Indeed, the location of the defendant's car immediately after impact rather than its location as observed by Webb is more favorable to the plaintiff's theory of liability.
Josey did not intend to exclude all testimony about the scene of an accident which could not be accompanied by evidence accounting for the interval between the accident and the witness's observation. In fact, both Josey and Hanna affirmed the *682 admission of such testimony without proof that the objects or vehicles had not been moved. In cases where the testimony does not go directly to the ultimate issue of liability, but only constitutes one feature of a composite of the witness's observations, the Josey court concluded that the right of cross examinationto show all the surrounding facts and circumstanceswould amply protect the defendant. The credibility and weight of the testimony is left to the jury. We hold, therefore, that the exclusion of Watt's testimony was error.
We conclude on a note of caution. While the limited purpose of the question in the instant case was readily apparent, there are often situations where it is not clear from counsel's question whether the elicited proof of subsequent conditions at the accident site goes to the ultimate issue of liability. An example can be seen in the case where proof is offered of repair of premises after an accident. Evidence of subsequent repairs may be admitted for the limited purpose of showing the condition of the premises at the time of the accident, but such evidence is not admissible as an admission of negligence by the defendant. Whenever such evidence is offered, in testing its propriety it is entirely proper for the trial judge to require of counsel to show what issue his proffered proof addresses. Whenever such evidence is admitted, the party opposing the evidence has a right to have the trial judge instruct the jury that the evidence is not admitted to show negligence but for the limited purpose of allowing the party offering the evidence to show the condition of the premises (or other limited purpose) at the time of the accident. City of Montgomery v. Quinn, 246 Ala. 154, 19 So. 2d 529 (1944).
Reversed and remanded.
HEFLIN, C.J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] For a good discussion of "Prior or Subsequent Existence," see II Wigmore on Evidence, § 437, p. 413 (1940).
[2] This is not to be understood as changing or otherwise affecting those cases which recognize the exceptions to this general rule. See, for example, Norwood Clinic v. Spann, 240 Ala. 427, 199 So. 840 (1941), and Gulf, M. & N.R. Co. v. Havard, 217 Ala. 639, 117 So. 223 (1928). | November 20, 1975 |
91b78014-1e24-44d1-b097-0a6c0d95a6e1 | Mordecai v. Scott | 320 So. 2d 642 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 642 (1975)
Mildred Doris MORDECAI and Charles E. Mordecai
v.
Mattie O. SCOTT.
SC 1145.
Supreme Court of Alabama.
October 2, 1975.
*643 R. B. Jones, Birmingham, for appellants.
Church & Trussell, Pell City, for appellee.
HEFLIN, Chief Justice.
This case arose out of a dispute as to the interest in a homestead granted to a widow and an adult child through a homestead law proceeding. Appeal is taken from the holding of the trial court granting appellee Mattie O. Scott and appellant Mildred Doris Mordecai each an undivided one-half interest in the disputed property with a right to the widow-appellee Mattie O. Scott of exclusive possession of the property for her life.
Appellee Mattie O. Scott is the widow of J. H. Scott who died intestate in 1958 owning a homestead not exceeding 160 acres in area. Appellant Mildred Doris Mordecai is the daughter of the complainant-appellee and the decedent and was over the age of 21 years at the time of decedent's death. Husband, Charles E. Mordecai, joins his wife as an appellant.
The trial court found that the homestead real estate was all of the real property that J. H. Scott owned in the State of Alabama and that it exceeded $6000.00 in value. The trial court further found that Scott's estate owed no debts.
Because the real property was valued at more than $6000.00, the appellants argue that appellee was entitled only to a life estate in the property as provided by Title 7, Section 661, Code of Alabama, 1940 (Recompiled 1958). It is apparent that the trial court construed the second sentence[1] of Section 661 of Title 7 with Section 663[2] of the same title in reaching a different *644 result from the contention of the appellants.
Under the facts of this case, the issue before this court is whether the trial court was correct in vesting an absolute fee simple interest in the widow and adult child, irrespective of the value of the property involved. This court holds that the trial court was correct in its decision.
Homestead has historically been a confused and confusing area of the law, which has presented difficulties to both the bench and bar. The most litigated aspect of homestead law has been the nature and value of the interest to be granted survivors under the Alabama statutes. The confusion surrounding this problem has been compounded because of the changes made in several of the statutes by the legislature in 1951 and 1953. In light of these changes, a review of the present state of the law of homestead pertinent to the rights of survivors seems appropriate before turning to the issue presented by this case.[3]
Two principles must be kept in mind when determining the homestead rights of survivors: (1) Survivors receive no benefit unless the decedent owned real estate, Geohegan v. Geohegan, 272 Ala. 514, 133 So. 2d 50 (1961); and (2) statutes in effect at the decedent's death control what estate the survivors will receive. Nix v. McCoy, 280 Ala. 516, 195 So. 2d 893 (1967).
In general, the homestead law provides to named survivors a homestead not exceeding 160 acres in area which is exempt from administration and the payment of debts. Title 7, Sections 661, 663, 697, Code of Alabama, 1940 (Recompiled 1958). Although the term "homestead" is not defined in the statute, this court has stated that "[a] homestead, in law, means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom." Griffin v. Ayers, 231 Ala. 493, 496, 165 So. 593, 595 (1936). It has been further defined as "the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family * * *" Moseley v. Neville, 221 Ala. 429, 431, 129 So. 12, 14 (1930), quoted in Griffin v. Ayers, supra. Normally the land must have been occupied by decedent prior to his death. Turner v. Turner, 107 Ala. 465, 18 So. 210 (1895). Contiguous real estate used for rental or commercial purposes and not used by the homeowner or his family is not within the "homestead." Griffin v. Ayers, supra; Turner v. Turner, supra. But see Cade v. Graffo, 227 Ala. 11, 148 So. 591 (1933), where contiguous property rented to others was determined to be part of the homestead because it was also used by the owner in connection with the homeplace.
Although the purpose of the homestead law is to secure the protection of the home to the survivors, it is not necessary that the widow and minor children actually occupy the homestead prior to decedent's death. See Hammond v. Shipp, *645 292 Ala. 113, 119, 289 So. 2d 802, 807 (1974); Thompson v. Bryant, 251 Ala. 566, 38 So. 2d 590 (1949). The survivors need not be Alabama residents, Lucky v. Roberts, 211 Ala. 578, 100 So. 878 (1924), although the statute [Section 661] does require that the decedent reside in Alabama at the time of his death. Matthews v. Matthews, 249 Ala. 611, 32 So. 2d 514 (1947).
If the decedent owned no homestead or if the homestead cannot be reduced to statutory value, the widow and minor children may receive an exemption in lieu of homestead in decedent's other lands. Title 7, Section 662, Code of Alabama, 1940 (Recompiled 1958). This same provision states that if decedent has no homestead exempt from levy and sale under process and if it is impossible to carve a homestead from the "other real estate," the survivors can receive $6,000.00 from the proceeds of the sale of decedent's real estate. See Geohegan v. Geohegan, 272 Ala. 514, 133 So. 2d 50 (1961). If the homestead is devised, the devisee can clear the property of the homestead rights by paying $6,000.00 to the personal representative. Title 7, Section 689, Code of Alabama, 1940 (Recompiled 1958). Section 687 provides that the money received under both Sections 662 and 689 is to be spent to purchase another homestead or to be paid to the widow, or the guardian of minor children if there is no widow, for the use and support of widow and/or minor children "upon such provisions, conditions or limitations as to the court shall seem proper in the premises." If the devisee does not wish to clear the property of homestead rights, the homestead can be set aside to the widow and/or minor children as provided in Section 661. Cf. Jay v. Jay, 289 Ala. 513, 518, 268 So. 2d 788, 792 (1972).
Neither the surviving husband[4] nor collateral heirs have rights under the homestead laws. See Title 7, Section 669, Code of Alabama, 1940 (Recompiled 1958); Little v. Simmons, 222 Ala. 206, 131 So. 561 (1930) (rights of husband); Harrod v. Farmer, 273 Ala. 298, 139 So. 2d 115 (1962) (rights of collateral heirs). The homestead rights of minor children in property left by their mother are superior to the rights granted to the husband by Title 16, Section 12 of the Code. See Barton v. Laundry, 202 Ala. 10, 79 So. 308 (1918).
When the homestead is not devised and there are no debts or the debts have been paid, the widow and minor children are allowed an exemption in the homestead without any value limitation under Section 661. See McCarver v. Womack, 285 Ala. 264, 231 So. 2d 301 (1970); Tipton v. Tipton, 268 Ala. 497, 108 So. 2d 348 (1959); Ganus v. Sullivan, 267 Ala. 16, 99 So. 2d 204 (1957).
Section 663 provides that if the homestead set aside is all the real estate owned in this state by the decedent at the time of his death then title vests absolutely in the widow, minor and adult children and the descendants of deceased children. See Pryor v. Heard, 268 Ala. 310, 106 So. 2d 171 (1958).
This section has been construed to allow absolute vesting where decedent owned cemetery lots, Sams v. Sams, 242 Ala. 240, 5 So. 2d 774 (1942), but absolute vesting was denied where decedent owned mineral rights in lands other than the homestead. Locke v. Locke, 291 Ala. 344, 280 So. 2d 773 (1973).
There is no question that the survivors' interest becomes a fee interest, regardless of devise, if the property set aside is all the property owned by the deceased in the state at the time of his death, the value is $6,000.00 or less and the area does not exceed 160 acres. Nathanson v. Key, 286 Ala. 486, 487, 242 So. 2d 389, 391 (1971); Nix v. McCoy, 280 Ala. 516, 195 So. 2d 893 (1967).
*646 The case presently before this court presents a situation where (1) the property is all the real estate which decedent owned within the state at the time of his death, (2) it does not exceed the area limitation, (3) but does exceed $6,000.00 in value, (4) no debts are owed by decedent's estate and (5) there is no devise of the property. The court must determine whether, under these facts, a homestead can be set apart which vests absolutely in the widow and adult child regardless of its value.
The statutes pertinent to this issue are Sections 661, 663, 694, and 697 of Title 7, Code of Alabama, 1940 (Recompiled 1958). This court has previously stated that these sections are to be construed together. Simpson v. Simpson, 254 Ala. 648, 49 So. 2d 314 (1950). At least three of these sections underwent extensive revision in 1951 and 1953. Prior to these revisions, the Code provided for a homestead exemption for the life of the widow and minority of the children of not exceeding $2,000.00 in value and 160 acres in area, which would vest absolutely if the estate was determined to be insolvent. Section 7918, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 661 of Title 7.). Further, the homestead would also vest absolutely in the widow and minor children as against other heirs of decedent after a judicial determination that it was all the property owned by decedent at his death and was not valued at more than $2,000.00. Section 7920, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 663 of Title 7.); Taylor v. Dew, 236 Ala. 624, 184 So. 184 (1938); Sims v. Kitchens, 233 Ala. 484, 172 So. 638 (1937). Title was presumed absolute as against creditors until it was judicially determined not to be all of the real estate owned by decedent at death and to be of greater value than $2,000.00. Section 7920, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 663 of Title 7); Sims v. Kitchens, supra.
In 1951, the legislature revised Section 661 and Section 697, as well as other sections dealing with homestead laws, and repealed Section 663 of the 1940 Code. This court discussed the changes made by these revisions in the case of Mitchell v. Mitchell, 258 Ala. 572, 64 So. 2d 104 (1953), where it was determined that the legislature meant by these changes (1) to raise the value of the homestead from $2,000.00 to $6,000.00 and (2) to provide that adult children would have an interest equal to those of the widow and minor children where the homestead vested absolutely.[5] This interpretation was approved and reinforced by the legislature in 1953 when the legislature reenacted and amended Section 663 and revised 697 by adding the parenthetical "minors and adults" after the word "children" in both sections. The reenacted version of Section 663 contained no provision requiring a judicial proceeding prior to vesting; it did provide homestead rights for the descendants of deceased children as well as for adult children.
In a case construing these revisions and their effect on Section 669, it was determined that adult children and their descendants have no homestead rights in their deceased mother's estate where the mother died leaving no surviving minor child. Young v. Seale, 266 Ala. 398, 96 So. 2d 746 (1957). In Seale, the changes made in Section 663 were examined and it was found that
The 1951 revision of Section 661 included for the first time a provision that a homestead of unlimited value would be set apart to the widow (for her lifetime) and minor children (for their minority) where there were no debts and where the property had not been devised. Appellants argue that the trial court erred by construing this provision of Section 661 with Section 663 to reach the result below. They argue that the $6,000.00 value limitation of Section 661 is implicit in Section 663 and that, because the homestead here involved is of a greater value, Section 663 has no effect and appellee has a right to a life interest only. This court disagrees with appellants and finds that the trial court's conclusions are correct.
At least three previously decided cases have a bearing on the decision this court reaches today. One, Harrod v. Farmer, 273 Ala. 298, 139 So. 2d 115 (1962), was decided on facts similar to those in the case before the court. In Harrod, decedent died intestate leaving property of less than 160 acres which was all the property he owned in the state and which was valued at more than $6,000.00. His estate owed no debts at the time the proceeding reviewed by the court was instituted to set aside the homestead to the surviving widow absolutely. A demurrer to the action was filed by decedent's next of kin (two sisters). The demurrer was overruled by the trial court and this decree was appealed. The issue, as addressed by this court, was whether "the homestead of a childless, Alabama resident, dying intestate after September 19, 1953, vest[s] in the widow absolutely, in fee simple, if it does not exceed 160 acres in size and if all debts of the estate are paid, even though said homestead exceeds the sum of $6,000.00 in value." 273 Ala. at 299-300, 139 So. 2d at 116. This court answered affirmatively. In reaching its conclusion the court construed the second sentence of Section 661 with Section 663 in order to establish what homestead rights vested in the widow. The court noted that without provision for absolute vesting of the homestead, the widow is placed in a position inferior to that of decedent's collateral heirs named in the descent statutesa position not faced by the children of decedent, who have priority in inheriting under Title 16, Section 1. The court further found that "[t]he effect of the amendments of §§ 661 and 663 is to place the widow in a more advantageous position than she had previously occupied, enabling her not only to occupy but to obtain title to the homestead of her deceased husband unlimited as to value, yet limited to 160 acres in area, where there are no debts of the estate or they have been paid by her. We are unable to say that this effect was not intentional on the part of the legislature in amending the statute." 273 Ala. at 302, 139 So. 2d at 118.
In Harrod v. Farmer, the parties challenging the widow's rights were collateral heirs, not adult children, as in the case presently before the court. Still, the decision of the court was that the second sentence of Section 661 was to be construed with Section 663 to provide for vesting of a homestead of unlimited value where necessary factual requirements were met. To that extent Harrod is direct precedent on the issue of value presented by this case.
*648 The later case of Nathanson v. Key, 286 Ala. 486, 242 So. 2d 389 (1971) may appear superficially to be in conflict with Harrod. In Nathanson, the issue was whether a probate court's decree setting aside a homestead was void for failing to find as a necessary jurisdictional fact that the property involved was all the property owned by decedent in the state. The court found that it was a necessary jurisdictional finding and voided the decree. The court stated, as dicta, that
286 Ala. at 487, 242 So. 2d at 391. In a footnote, the court noted that Harrod, supra, had allowed the exemption without limit as to value. No indication was made that the court intended by its decision in Nathanson to overrule Harrod. It should be noted that in Nathanson the homestead was valued at less than $6,000.00. Thus the second sentence of Section 661 did not influence the decision in that case.
The reference to Harrod and to Ganus v. Sullivan, 267 Ala. 16, 99 So. 2d 204 (1957), both of which involved construction of the second sentence of Section 661, without an indication of intention to overrule them, amounts to an acknowledgement by the court that it was aware that under other facts (i.e., land valued at more than $6,000.00, no devise and no debts owed) different jurisdictional findings would be required. Thus, Nathanson does not specifically address the issue before the court and does not preclude this court following Harrod v. Farmer.
The case of Tyner v. Martin, 290 Ala. 310, 276 So. 2d 431 (1973) considers another aspect of the issues raised by Sections 661 and 663. In Tyner, decedent left a homestead of less than 160 acres which was found to be valued at more than $6,000.00. There were no debts owed by the estate, but decedent did leave a will which first provided that decedent's executors should "spend whatever amount is necessary" to provide for his wife and then provided that at her death whatever was left was to go to three named individuals. The widow, who was incompetent, dissented from the will through a guardian and further moved to have the homestead set apart to her. The trial court granted her a life estate in the property with provision that it should go to decedent's devisees at her death. When the widow died, her administratrix brought an action challenging the earlier decree on grounds that title to the homestead should have been vested absolutely in the widow, based, among other things, on the construction given the second sentence of Section 661 and Section 663 in Harrod v. Farmer. The court distinguished Harrod from the case before it on the basis that in the case before it the decedent had left a will. The court though treated Harrod as the law of Alabama in those cases where decedent died intestate, leaving no debts and where the property was less than 160 acres and was all the property owned in the state at the time of decedent's death. Further, it construed the second sentence of Section 661 with Section 663 in its determination of rights of the widow and other parties before it.
Thus, at least two cases previously decided by this court have construed Section 661, second sentence, with Section 663 to determine the interests of survivors under the latter statute. No decisions have been pointed out which require otherwise. The decision of the trial court holding that Mildred Doris Mordecai and Mattie O. Scott each have a one-half undivided interest with right to sole possession for life in appellee is due to be affirmed. This court finds that a homestead of unlimited value vests absolutely in the eligible survivors where the homestead is all the real estate owned by decedent in the state at his *649 death, decedent's estate owes no debts and the property has not been devised, provided it doesn't exceed 160 acres.
Affirmed.
MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.
[1] The second sentence of Section 661 of Title 7 reads:
Except when the homestead is devised by will it shall vest in the widow and the minor children for the life of the widow or the minority of the children whichever may last terminate, without limit as to value, if there are no debts, or if the remainder of the estate is sufficient to pay all debts and claims against the estate, or if the remainder of the estate is insufficient to pay all claims against the estate and if the widow or minor children shall pay the remaining unsatisfied claims.
[2] Title 7, Section 663 reads:
When the homestead set apart to the widow and minor children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, whether there be administration on the estate or not and whether the estate be solvent or insolvent, the title to such homestead vests absolutely in the widow, the children (minors and adults) and the descendants of deceased children; or if there be no widow, in the children (minors and adults) and the descendants of deceased children; and if there be no children or descendants of deceased children, in the widow. Provided that when there are children and a widow the homestead so vested shall not be sold for division during the life of the widow and the minority of the child or children, without the consent of the widow and the legally appointed representative of the minor children. And provided further that when the homestead is so vested and there are a widow and minor children the widow and minor children shall be entitled to the exclusive possession of such real property for the life of the widow and the minority of the children; where there are both minor and adult children the minor children shall be entitled to the exclusive possession of such real property during their minority; and where there is a widow but no minor children such widow shall be entitled to the exclusive possession of such property during her life. As against creditors of decedent the title to the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by the decedent, and that it is of greater value than six thousand dollars, and the homestead secured thereby shall be held and governed as in section 661 of this title.
[3] For a treatment of the entire subject of survivors' homestead rights, see Comment, Homestead for Survivors in Alabama, to be published in 27 Ala.L.Rev. ___ (1975). Appreciation is extended to the staff of the Alabama Law Review and to Joe Dean, Jr., the author of this article, for allowing the court to refer to the manuscript prior to its publication.
[4] See Comment listed in footnote 3, for author's argument that homestead rights should be extended to widowers.
[5] See comment on the effect of the 1951 Act in an article entitled "Homestead Rights in Alabama Protecting Widows and Children" by Fred Blanton, 15 Alabama Lawyer 262, 275 (1954). | October 2, 1975 |
f1a2bbbc-938c-4a51-aa57-ee886f12d7da | BF Goodrich Co. v. Butler | 324 So. 2d 788 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 788 (1975)
In re the B.F. GOODRICH CO.
v.
William Travis BUTLER.
Ex parte the B.F. Goodrich Co.
SC 1340.
Supreme Court of Alabama.
November 20, 1975.
Rehearing Denied January 2, 1976.
M.T. Ormond, Tuscaloosa, for petitioner.
Edward F. Morgan, Tuscaloosa, for respondent.
John H. Morrow and Michael H. Mobbs, Birmingham, amicus curiae in support of petition for United States Pipe and Foundry Co. and Stockham Valves and Fittings, Inc.
Thomas, Taliaferro, Forman, Burr & Murray and Robert G. Tate and A. Brand Walton, Jr., Birmingham, amicus curiae in support of petition for Associated Industries of Alabama.
Burns, Shumaker & Davis and Otis J. Goodwyn, Jr., Gadsden, amicus curiae, opposed to petition for Alabama Labor Council AFL-CIO.
William J. Baxley, Atty.Gen., and James S. Ward, Asst. Atty. Gen., amicus curiae, opposed to petition for the State.
PER CURIAM.
The writ to the Court of Civil Appeals, 56 Ala.App. 635, 324 So. 2d 776 is quashed as improvidently granted. By so doing we are not to be understood as expressing any opinion on the constitutionality of Act No. 1062 as that question was not properly presented to the trial court.
Writ quashed as improvidently granted.
MERRILL, ALMON and SHORES, JJ., concur.
MADDOX and JONES, JJ., concur specially.
MADDOX, Justice (concurring specially.)
I would affirm the judgment of the Court of Civil Appeals. While the Court of Civil Appeals did make certain "observations" that Act No. 1062 was not unconstitutional because the bill which passed the Legislature was not exactly like the one signed by the Governor, the actual holding of that court was that the constitutional question had not been properly presented. The Court of Civil Appeals did discuss the constitutional question, nevertheless, and I believe that court made a correct "observation"that Act No. 1062 was not void in its entirety because of the *789 variance. Justice Clopton, in Stein v. Leeper, 78 Ala. 517 (1885), set out the rule to follow in such matters:
By quashing the writ rather than affirming the Court of Civil Appeals, the majority has failed to give final review of a new statute which will affect the rights of many employers and employees alike. That is why I would affirm the case rather than quash the writ.
JONES, J., concurs. | November 20, 1975 |
8f5869d3-5ba8-4b22-8cc4-f738275fa339 | Lorence v. Hospital Bd. of Morgan County | 320 So. 2d 631 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 631 (1975)
Ralph Camenron LORENCE
v.
HOSPITAL BOARD OF MORGAN COUNTY, Alabama, a public corporation, et al.
SC 1137.
Supreme Court of Alabama.
July 10, 1975.
As Corrected on Denial of Rehearing October 2, 1975.
*632 Chenault & Chenault, Decatur, for appellant.
Joe Calvin, Decatur, for appellees.
JONES, Justice.
The principle issue presented by this appeal is whether governmental immunity is available to a County Hospital Board as a valid defense to an action ex delicto.
We reverse the trial Court's order granting the motion to dismiss the tort counts. We hold that the trial Court did not err in granting the motion to dismiss the contract counts since the duty alleged is imposed solely by law and its alleged breach is tortious only. Accordingly, we affirm in part and reverse in part and remand for further proceedings not inconsistent with this opinion.
Inasmuch as this cause on remand is yet to be tried, the issue presented having reached this Court on the pleadings, we deem it inappropriate to discuss in detail the facts as alleged in the complaint. Suffice it to say, Ralph Camenron Lorence alleges that he suffered damages due to the negligence of an employee of the Hospital Board of Morgan County while acting within the line and scope of his employment.
Our consideration of this issue poses an almost overwhelming compulsion to review in depth the historyboth legislative and judicialas well as the philosophical evolution, *633 of this legal precept. Because of the voluminous and exhaustive treatment previously accorded this entire field of law,[1] however, such an in depth analysis is neither desirable nor necessary. Our decision this date released in Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68, abolishing the defense of sovereign immunity as to municipalities, compels the same result, founded on the same rationale, with respect to counties. Jackson held that municipal immunity, in actuality, was abolished by the legislature in 1907; and, since the "governmental/proprietary" distinction was court made, it was up to the courts to change the law to conform with the clear intent expressed by the legislature.
The bridge between Jackson (cities) and Lorence (counties) is necessarily dependent upon an affirmative reply to two questions. First, does the legal status of a municipality equate that of a county? Otherwise stated, do both fall equally within the legislative prerogative with respect to the right to sue and be sued? The answer is "yes."
Neither is the creation of the Constitution; both are creatures of statute. The fact and nature of their respective existence, as well as the duties, powers, and limitations, are governed solely by legislative mandate. The only distinction between the two entities is wholly immaterial to our inquirythe city is a voluntary political unit within the state while the county is an involuntary political subdivision of the state. Jones v. Jefferson County, 206 Ala. 13, 89 So. 174 (1921); Askew v. Hale County, 54 Ala. 639 (1875).
The remaining question, then, is whether the legislature has exercised its prerogative with respect to county liability in like manner as to city liability? Here, again, as in Jackson, the answer is "yes." The legislature has expressed its prerogative in this regard through its passage of the following statutes:
As Justice Thomas observed in Calhoun County v. Brandon, 237 Ala. 537, 187 So. 868 (1939), in recognition of these legislative expressions, "A county is given the right to sue and be sued, as are individuals." *634 Just as in the case of municipalities, the court, in spite of clear legislative language to the contrary, persisted in perpetuating the "King can do no wrong" thesis. Out of this jungle of court made law emerged the perverted interpretation that what the legislature really meant by the expression "with power to sue or be sued" was to subject the county to suits sounding in tort only when it was performing an act specifically authorized by the legislature and where liability was expressly imposed by the statute; and that a county was immune from suits in any case involving the exercise of their governmental functions. Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So. 2d 762 (1957); Laney v. Jefferson County, 249 Ala. 612, 32 So. 2d 542 (1947).
While it is true that the legislature has not subsequently exercised its prerogative, with regard to counties, to expressly provide that they may be sued for the negligence of their agents, servants, and employees while acting within the scope of their authority, as it has done with regard to municipalities, the legislative equivalent was exercised with regard to counties in the establishment of county hospital boards. Tit. 22, § 204(24), Code of Alabama 1940 (Recomp.1958), was passed by the legislature in 1949. It expressly provides that county hospital boards are empowered "to sue and be sued and to defend suits against it [and] to provide for such insurance as the corporation may deem advisable."
We believe it is clear that the legislature had no intention to limit such suits to actions sounding in contract. Had it so intended, it could have so provided. This it did with regard to municipal hospitals by expressly providing that they are empowered "to sue others and to prosecute suits; to be sued by others in any form of litigation other than an action ex delicto."[2] (Emphasis supplied.) No such limitation appears in the legislative language contained in Tit. 22, § 204, which authorizes the creation and operation of county hospital boards.
We are not to be understood as saying that our holding would be different had the statute been silent as to the right of the county hospital board to be sued. Neither this question nor the question of the county's general liability is before us. What is before us is the immunity question with respect to county hospital boards; and because the statute authorizing such corporate entity expressly provides for suits against them, Jackson, in its holding and rationale, compels a like conclusion.
We overrule Garrett v. Escambia County Hospital Board, supra, and Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So. 2d 583 (1969). We do not overrule old case law lightly or flippantly. But, where precedent can no longer be supported by reason and justice, we perceive it our duty to reexamine, and if need be, overrule court made law.
The quaint poetic lines of Sam Walter Foss put in perspective the philosophy of those courts which feel compelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent.
One day through the primeval wood
A calf walked home, as good calves should;
But left a trail all bent askew,
A crooked trail, as all calves do.
Since then, three hundred years have fled,
And, I infer, the calf is dead.
But still he left behind this trail,
And thereby hangs my moral tale.
The trail was taken up next day
By a lone dog that passed that way;
And then a wise bell-wether sheep
Pursued the trail o'er vale and steep,
Also, consistent with our holding in Jackson and Harris v. Board of Water and Sewer Commissioners of City of Mobile, 294 Ala. 606, 320 So. 2d 624 [this date released], we accord to our holding in this opinion quasi prospective application; i.e., relief is afforded the instant plaintiff and all others similarly situated who incur injury or damage from this date hence.
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.
FAULKNER and SHORES, JJ., concur.
BLOODWORTH and ALMON, JJ., concur in the result.
EMBRY, J., concurs in part and dissents in part.
HEFLIN, C.J., and MERRILL and MADDOX, JJ., dissent.
EMBRY, Justice (concurring in part, dissenting in part):
I concur in the result to reverse in part and remand this case for further proceedings not inconsistent with the opinion of Justice Jones. I am compelled to disagree, in measure, with some of the reasons for reversing the trial court's order granting the motion to dismiss the count sounding *636 in tort. In totality, I am at odds with approving dismissal of the count based on contract.
The decision of this court in Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68, is both accurate and soundly reasoned. That decision analyzed and gave proper legislative intent to Code of Ala., Tit. 37, § 502.
My brother Jones accurately states that the legislature provided in Code of Ala., Tit. 12, § 3, that "Every county is a body corporate, with power to sue or be sued in any court of record." It should be pointed out that this action is against "The Hospital Board of Morgan County, Alabama, A Public Corporation, et al." Is this, then, an action against the County of Morgan or rather one against a public corporation organized by that county pursuant to authority of the legislature found in Code of Ala., Tit. 22, Article 5, §§ 204(18)-204(30)? In my view it is the latter and therefore amenability to suit, ex contractu (express, implied by law or implied in fact) or ex delicto is bottomed on proper interpretation of Code of Ala., Tit. 22, § 204(24). That amenability to suit is expressed clearly in the cited code section. No claim is necessary as a condition precedent to suit as required in an action against a county per Tit. 7, § 96. As a county enjoys no immunity from suit neither does this hospital board, but no claim is required in this instance.
Here I record my dissent with the opinion where it holds that the trial court did not err in granting the motion to dismiss the contract counts. The breach of duty imposed by law may be tortious or tortious breach of contract; express, implied by law or implied in fact, either or which is subject to proof and the remedy is a matter of election by the party complaining of the wrong which resulted in injury. Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459 (1952); Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923).
MERRILL, Justice (dissenting).
My reasons for dissenting are the same as those appearing in my dissent in Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68. That case did away with governmental immunity of a city in the performance of a governmental function. This case does the same insofar as counties are concerned. These decisions have changed the law that has been in effect in Alabama for over 100 years.
*637 Ordinarily, taxpayers expect that taxes and governmental costs will originate in the Legislature, or their city and county governing bodies. But this court has stepped in, changed a long-existing policy, and abolished governmental immunity for towns, cities and counties while engaged in a governmental function. These decisions will probably extract more money from the pockets of taxpayers in Alabama, or diminish more services each receives, than any act raising new taxes which may be passed by the Legislature now in session.
The Legislature can restore that which has been taken away in these judicial decisions if it sees fit to do so. The taxpayers' present remedy is with the legislative branch of government.
I would affirm the action of the trial court because I remain of the opinion that the question of governmental immunity in the performance of a governmental function is a legislative rather than a judicial matter, especially in view of the fact that most legislation affecting counties, cities and towns passed in the past 100 years has been enacted with the idea that that doctrine would continue to prevail.
I respectfully dissent.
MADDOX, J., concurs.
JONES, Justice.
The earnest contention of appellee's able counsel that our reversal is grounded on an issuesovereign immunitynot raised or argued in appellant's brief deserves our response.
Plaintiff's complaint contains two counts: one in tort and one in contract. Appellant assigns as error the trial Court's order granting defendant's motion for summary judgment as to both counts. Appellant's fifteen-page brief, except for the final paragraph, is devoted entirely to the validity of the contract count. In view of the posture of our case lawpermitting actions ex contractu under certain circumstances to circumvent the immunity defensesuch priority of consideration is understandable. The last paragraph of appellant's brief, however, reads:
The Court held the contract count invalid. Appellee now says in effect that, since he won on the issue made the central thrust of appellant's argument, appellant should not be allowed to win on an issue, though properly preserved and assigned, that was so scantly contended for. We know of no such quantitative test. However scant this argument may be, it raised the issue to which the opinion addresses itself.
Opinion corrected and extended. Application for rehearing overruled.
FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.
HEFLIN, C.J., and MERRILL, BLOODWORTH and MADDOX, JJ., dissent.
BLOODWORTH, Justice (dissenting).
On original deliverance, I concurred in the result reached by the majority opinion (authored by Justice Jones). I now wish to change my vote and dissent for the following reason.
*638 It is now clear to me that the only issue argued on this appeal by appellant is that governmental immunity was not available to the appellee in an action on implied contract. But, the majority have reversed this cause on another groundholding that governmental immunity is not available as a defense in an action ex delicto.
Up to this day, this Court has always followed the rule that assignments of error not substantially argued, or not argued at all, in brief are deemed waived. See e.g., Lowery v. Stinson, 291 Ala. 415, 282 So. 2d 244 (1973); Runge v. Mercantile Credit Corp., 285 Ala. 183, 230 So. 2d 240 (1970); Renfroe v. Weaver, 285 Ala. 1, 228 So. 2d 764 (1969); Appeal and Error 1078(1), Vol. 2A, Alabama Digest; Supreme Court Rule 9, Revised Rules of Practice in the Supreme Court.
In this case only three relevant sentences (quoted from appellant's brief) appear in the majority opinion on rehearing to justify consideration of the issue of tort immunity, viz:
In my judgment these statements constitute nothing more than mere opinions. Surely, they cannot be construed to be substantial arguments that the court erred in granting summary judgment because governmental immunity from tort ought to be abolished. No assignment of error is referred to. No authority is cited.
Under our cases, appellant's argument is insufficient. Melton v. Jackson, 284 Ala. 253, 224 So. 2d 611 (1969).
I therefore dissent as I would grant the rehearing and affirm the cause.
[1] Notably among the textwriters, see Borchard, Government Liability In Tort, 34 Yale L.J. 1 (1924), and Copeland and Screws, Governmental Responsibility for Tort In Alabama, 13 Ala.L.Rev. 296 (1961).
[2] Tit. 22, § 204(41h).
[3] Stevenson, The Home Book of Verse, Henry Holt & Co., N.Y., 7 ed., 1940, at p. 1896. | October 2, 1975 |
344356b8-0a67-417a-867d-0087615bebc8 | Allen Trucking Co., Inc. v. Adams | 323 So. 2d 373 | N/A | Alabama | Alabama Supreme Court | 323 So. 2d 373 (1975)
In re ALLEN TRUCKING CO., INC.
v.
Joel D. ADAMS.
Ex parte Frank B. EMBRY.
SC 1435.
Supreme Court of Alabama.
November 26, 1975.
Luther H. Waller, Jr., Montgomery, for petitioner.
A. Pope Gordon, Montgomery, for respondent.
FAULKNER, Justice.
Petition of Frank B. Embry for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Allen Trucking Co., Inc. v. Adams, 56 Ala.App. ___, 323 S.2d 367.
Writ quashed.
All the Justices concur. | November 26, 1975 |
11a86d49-ef4f-4e28-b09f-dc26841cb697 | DeGruy v. State | 323 So. 2d 411 | N/A | Alabama | Alabama Supreme Court | 323 So. 2d 411 (1975)
In re Glenn DeGRUY
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1276.
Supreme Court of Alabama.
October 2, 1975.
Rehearing Denied December 18, 1975.
HEFLIN, Chief 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 DeGruy v. State, 56 Ala.App.___, 323 So. 2d 406.
Writ denied.
MERRILL, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.
BLOODWORTH, MADDOX and ALMON, JJ., dissent. | October 2, 1975 |
25c3c954-e879-465c-b42f-b06e911b094f | Martin Oil Co., Inc. v. Clokey | 277 So. 2d 343 | N/A | Alabama | Alabama Supreme Court | 277 So. 2d 343 (1973)
MARTIN OIL CO., INC., et al.
v.
David L. CLOKEY et al.
Div. SC 278.
Supreme Court of Alabama.
May 3, 1973.
Rehearing Denied May 24, 1973.
Lusk, Swann, Burns & Stivender, Gadsden, Wingo, Bibb, Foster, Conwell & Strickland, Birmingham, for appellants.
Inzer, Suttle, Inzer & Pruett, Gadsden, for appellee, David L. Clokey.
COLEMAN, Justice.
Appellants appeal from an order appointing a receiver for Martin Oil Co., Inc., an Alabama corporation. Title 7, § 758, Code 1940.
The appellants are the corporation, sometimes referred to as the company, and James D. Martin who is a stockholder and president of the corporation. He is herein referred to as Martin.
The appellees are David L. Clokey and Charles H. Fennelle. Both are stockholders and officers of the corporation. On January 23, 1973, they filed in the circuit court, in equity, an instrument entitled: "APPLICATION FOR THE APPOINTMENT OF LIQUIDATING RECEIVER."
Appellees, sometimes herein referred to as applicants, allege in the application that the principal place of business of the corporation is in Gadsden in Etowah County, Alabama. Appellants assert in brief that Martin resides in Gadsden. This assertion is not contradicted.
On January 29, 1973, the circuit court entered the order appointing a receiver pendente lite of all the property, assets, and estate of the corporation with authority to take immediate possession of said property including all books, papers, evidence of indebtedness, and all other property of every kind whatsoever belonging to *344 the corporation. It is ordered that the receiver shall continue to carry on the business of the corporation pending further orders of the court.
Neither the corporation nor Martin received notice of the application until January 30, 1973, on which day the sheriff of Etowah County served a copy thereof on Martin by handing it to Martin. The record contains nothing to explain why no service was had during the period between the filing on January 23 and the service on January 30. The first prayer in the application is that the court appoint a receiver pendente lite to take custody of the assets of the corporation and manage and operate its business and safeguard its assets until hearing can be had.
The averments of the application are that the principal place of business of the corporation is in Gadsden; that it is engaged in distributing petroleum products; that annually the corporation sells approximately 7,000,000 gallons of such products and about $40,000.00 in tires, batteries, and accessories, and owns "considerable real property" in Etowah and St. Clair Counties; that the directors of the corporation are Clokey, Fennelle, and Martin; that Martin is president, Clokey is vice-president, and Fennelle is secretary-treasurer of the corporation; that Clokey and Fennelle sell the products of the corporation and manage the "day-to-day operations exclusive of its financial affairs"; that from the time the corporation began business, Martin has directed its financial affairs; that Clokey owns one-fourth of the capital stock of the corporation, Fennelle one-fourth, and Martin owns the remaining one-half with possible exception of one share which applicants are informed and believe might have been issued to Thomas N. Martin; that when Clokey and Fennelle became shareholders they relied on Martin's assurance that each of them would receive one-fourth of the shares of stock outstanding; that each was deceived in that Martin issued to Clokey treasury stock; and that by issuing treasury stock to Clokey, Martin increased his position of dominance in the company.
In Section 5 of the application, applicants aver that Martin has used his dominant position as chief financial officer to violate the salary agreement between the company and each officer; that Clokey and Fennelle, according to the agreement, are to receive, as salary, a sum equal to 13/15 of the sum paid to Martin as salary; that Martin directed, in August of 1971, that no further salary should be paid to any officer of the corporation, and, since that time, with the exception of salary for December, 1972, and January, 1973, collected by applicants on their own motion, no salary has been paid to either of them; that, however, during the time from August, 1971, Martin continued to withdraw from the company and divert to his own purposes approximately $8,000.00 per month.
Applicants aver that Martin's refusal to attend directors' meetings and to abide decisions made by the directors has created a deadlock in the management of company affairs and the business of the company is threatened with immediate and irreparable injury; that Martin has used his position to misappropriate assets of the company to his own use and the use of members of his immediate family; that company records disclose that during the fifteen months including and next preceding November, 1972, Martin fraudulently used for his own purposes approximately $115,000.00 of the company's funds as follows: $12,300.00 to pay debt on home in Maryland, title to which is in Martin, his family, or Martin Realty Co., a corporation, herein called Martin Realty, in which Martin has a substantial interest; $28,000.00 to purchase a truck stop owned by Martin or his family or Martin Realty; $31,000.00 spent to purchase or maintain filling stations owned by Martin, his family, or Martin Realty; $38,000.00 to purchase a restaurant similarly owned by Martin or his family; $11,200.00 to purchase a farm in Calhoun County, Alabama, also similarly *345 owned by Martin or his family; $1,200.00 to pay Martin's pledge to a church; and $400.00 on Martin's campaign for United States Senator.
Applicants aver that Martin has utilized one company employee full time as a worker on Martin's farm and has used other company employees to maintain his home, his personally owned filling stations and his farm, and has made an unauthorized loan of company funds to a personal friend; that for the past eight or nine years Martin has followed a "`long standing and consistent program of misappropriation of the Company's assets'" and has brought the company "`near to bankruptcy'" and made it "`operationally insolvent'"; that the company is indebted to "AMOCO" in excess of $100,000.00, presently due and payable, and does not have on hand funds sufficient to pay that debt in the immediate future; that company has had to operate on a restricted cash flow and cannot take advantage of discounts on purchases from its principal supplier equivalent to approximately $1,000.00 per month.
Applicants aver that:
Applicants further aver that because of the history of mismanagement and fraud Martin has perpetrated upon applicants, they "can no longer agree actively to be engaged in business with him"; that appointment of a receiver is necessary to collect the assets of the company, to operate its business pending liquidation, to recover from Martin, his family, or Martin Realty Company assets he has fraudulently misappropriated, and to supervise an audit of the company's books to account for the misappropriated assets.
In addition to the first prayer for appointment of receiver for corporation as mentioned above, applicants pray for temporary injunction to enjoin Martin from interfering with the receiver or disposing of his interest in the stock of the corporation, any service station in Etowah or St. Clair County, his Calhoun County farm, his Maryland residence, the Scruggs' Truck Stop, the Riverboat Restaurant, and his interest in Martin Realty.
Applicants pray also for temporary injunction enjoining Martin's wife from disposing of any interest she has in the property mentioned in the next preceding paragraph.
Applicants pray for injunction enjoining State National Bank of Alabama and American National Bank of Gadsden from permitting anyone, except the receiver, to withdraw funds deposited to the account of the company or to use the company's credit. Applicants pray also for injunction enjoining Martin Realty from disposing of its assets, including but not limited to cash and funds on deposit.
The injunctions prayed for were issued, but issuance of the injunctions is not assigned as error.
The order appointing receiver is assigned as error. Seven reasons are asserted and argued by respondents as grounds to support this assignment. Among these are those next considered.
Respondents argue that appointment of the receiver was unauthorized because no suit was pending when the appointment was made. This court has said:
In Crowder v. Moone, supra, the appeal was from an order appointing a receiver one day before the bill was filed. In reversing, among other things, this court said:
On appeal from an order appointing a receiver, in Harwell v. Potts, supra, this court reversed and said:
In Howell & Howell v. Harris-Cortner & Co., supra, this court revoked the appointment of a receiver, saying:
The receiver was appointed in the instant proceeding without notice to respondents. Respondents argue that the order appointing the receiver is improper because the rule is that the appointment of a receiver without notice is improper unless the bill or application on which the order is founded sets forth facts showing an imperious and stringent necessity for the appointment without notice, and here no such necessity is shown.
In Crowder v. Moone, supra, this court said:
In Moritz & Weil v. Miller, Schram & Co., 87 Ala. 331, 6 So. 269, appeal was from an order appointing a receiver under a bill seeking to set aside a transfer by Moritz & Weil of their books, notes, accounts, *347 and other choses in action to other defendants on the alleged ground that the transfer was made on a fictitious consideration with intent to defraud complainants and other creditors. This court said:
In Thompson v. Tower Manufacturing Co., 87 Ala. 733, 6 So. 928, the case is stated as follows:
In reversing the order appointing receiver this court said:
In Hayes v. Jasper Land Co., 147 Ala. 340, 41 So. 909, the bill was by a minority stockholder and in which the corporation and its president were made respondents. The purpose of the bill was to require an accounting by the respondent president for alleged transactions by him as such officer. The bill prayed for a receiver and was accompanied by petition for appointment of a receiver which the chancellor refused and from the order refusing to appoint the appeal was prosecuted. The bill averred that of 4990 shares outstanding, the respondent president owned or controlled over 4700 shares; "... that he has abused his control of said corporation and his trust as vice president and general manager, and later as president; that he has loaned to himself, and to companies owned and controlled by him, large sums of money belonging to the land company; that he has called stockholders' meetings without notice, and has presented and had allowed by the stockholders and directors unfounded claims and demands against the land company; that on September 13, 1905, he procured to be declared a dividend of $29.50 per share of the stock of the land company, which was paid out of the capital assets of the company; that he has taken and is now taking from the treasury excessive sums in the form of salaries and expenses; that he is in the absolute control of the said land company, and of its money, and assets; and that, unless the same is taken from him and protected by a court of equity, he will continue to appropriate the same to his own use, under various guises and devices, which would make it difficult, if not impossible, to trace and recover the same. It is not averred in the bill that either Musgrove or the respondent corporation are insolvent. The bill further shows that the defendant corporation has a board of directors and officers, that have the management and control of its business and affairs, and it is not denied that these officers are administering the business purposes of the corporation, though it is charged that the board of directors are under the domination and control of the said Musgrove, and that through the mismanagement and fraud the corporation will ultimately be destroyed...." (147 Ala. at 343, 344, 41 So. at 910)
*349 In affirming the refusal to appoint a receiver for the corporation, this court, among other things, said:
In a suit for appointment of receiver and accounting this court reversed a decree appointing a receiver for a corporation. The court said:
In Van Antwerp Realty Corp. v. Cooke, 230 Ala. 535, 162 So. 97, this court affirmed a decree overruling demurrer to a bill. The court held that while the bill did not show a right to have a receiver appointed, the bill did show a right to other relief. This court considered the circumstances in which a receiver will be appointed at the suit of a minority stockholder when the corporation is solvent and a going concern, but had this to say:
The following footnote is found in Fletcher, Cyclopedia of The Law of Private Corporations, Permanent Edition, Vol. 16, pages 67 and 68, to wit:
Appellants argue also that a receiver will not be appointed for a corporation when there is another adequate remedy; and that an adequate remedy by accounting and injunction precludes the appointment of a receiver, citing Fletcher, Vol. 16, supra, pages 203, 206, 209; Hayes v. Jasper Land Co., supra; Birmingham Disinfectant Co. v. Smith, supra; and Alabama Coal & Coke Company v. Shackelford, supra.
In reply to appellants' argument, the applicants say that the appointment of a receiver for a corporation is authorized by Act No. 414, approved November 13, 1959, 1959 Acts, page 1055, Sections 78 and 79; which appear in the pocket parts of the 1958 Recompilation of the Code as Title 10, § 21(78) and § 21(79).
The cited statute, §§ 78 and 79, does contain certain provision for dissolution and liquidation of corporations and for appointment of receivers, but we are not advised as to provisions in the statute which authorize such appointment without notice when no suit is pending, or when the imperious and stringent necessity for appointment without notice is not shown, or when it is not shown that there is no other adequate remedy. Here, no bill of complaint has been filed. It is not alleged that either the corporation or Martin is insolvent. It is not shown that injunction or accounting will not afford an adequate remedy.
The applicants cite the cases next discussed. In Cowin v. Salmon, 248 Ala. 580, 28 So. 2d 633, this court affirmed a decree dissolving two corporations. Apparently a receiver had been appointed. The appeal was the second appeal in litigation between the same parties relating to the same subject matter. See Cowin v. Salmon, 244 Ala. 285, 13 So. 2d 190. The decree appears to have been a final decree after hearing. No question is presented with respect to appointment of a receiver without notice.
In Jasper Land Co. v. Wallis & Carley, 123 Ala. 652, 26 So. 659, this court affirmed a decree appointing a receiver. The statement of the case recites that on submission of the cause on the petition for appointment of receiver, motion to dismiss the bill, demurrers, answers of the defendants, "and upon the testimony," the court rendered a decree granting the petition and ordered the appointment of receiver. There the respondents had filed an answer and there was no lack of notice.
In Bateh v. Brown, 289 Ala. 695, 271 So. 2d 830, the appeal was from a decree in a suit which sought dissolution and liquidation of a corporation, the appointment of a receiver, and distribution of the assets. A bill of complaint was filed May 6, 1971. Decrees pro confesso were entered against respondents on June 10, 1971. On June 15, 1971, respondents filed "a purported answer"; on June 21, 1971, respondents filed petition to set aside the decrees pro confesso; and on August 31, 1971, the court entered a final decree. Clearly the respondents had ample notice.
In American Armed Services Underwriters v. Atlas Insurance Company, 268 Ala. 637, 108 So. 2d 687, this court affirmed an order issued ex parte appointing a receiver for a corporation. There are at least two material differences between Armed Services and the instant case. The order in *351 Armed Services appointing the receiver was issued upon a bill filed by complainant and three supporting affidavits. In the instant case no bill had been filed. The respondents to the bill in Armed Services were four individuals, namely: Cooney, Kenney, Wallace, and Cage, and a Nevada corporation, and a bank. In the statement of the case the following appears:
In the instant case, there is no allegation that either of the appellants is insolvent.
In Ashurst v. Lehman, Durr & Co., 86 Ala. 370, 5 So. 731, a bill was filed December 15, 1888, against appellants and sought foreclosure of a mortgage executed by appellants conveying a tract of land and the crops to be grown on the land in the year 1888. The bill prayed the appointment of a receiver to take possession of the crops. A receiver was appointed by the register on the day the bill was filed. An appeal to the chancellor was taken from the order of the register, and the chancellor affirmed. The chancellor's decree was assigned as error on appeal to this court. This court affirmed saying:
In the case at bar, for the reasons that no bill had been filed, that it had not been shown that appellants were insolvent, and *352 for aught that appears injunction and accounting would furnish an adequate remedy for the applicants, the necessity for appointment of a receiver without notice does not appear and the order appointing the receiver without notice is erroneous and is revoked.
As to what rights the parties may be shown to have in further proceedings we express no opinion.
Reversed and remanded.
BLOODWORTH, McCALL, FAULKNER and JONES, JJ., concur. | May 3, 1973 |
1eb094c9-54e9-4d1f-aa41-afb464ce97c2 | Barksdale v. Pendergrass | 319 So. 2d 267 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 267 (1975)
Joe BARKSDALE et al.
v.
Rita January Gray PENDERGRASS.
SC 1310.
Supreme Court of Alabama.
September 25, 1975.
*269 Beck & Beck, Fort Payne, for appellants.
Charles M. Scott, Fort Payne, for appellee.
MERRILL, Justice.
Mrs. Mamie C. Henry, a widow, died on October 18, 1972. She had no children, but was survived by a number of nieces and nephews.
No duly executed will was found and Joe Barksdale, a nephew of Mrs. Henry, was appointed administrator of her estate.
Later, Rita Jan Pendergrass, formerly Rita Jan Gray, filed a petition in the Probate Court of DeKalb County to probate an alleged lost or destroyed will of Mamie C. Henry. A copy of the will was made an exhibit to the petition. According to its terms, Mrs. Henry left all of her property to Rita Jan Gray and appointed her as executrix.
Joe Barksdale and Olen Barksdale filed a contest and the case was transferred to the circuit court, where it was tried before a jury. The grounds of the contest were that the purported will was never duly executed, or, that if executed, was destroyed by Mrs. Henry prior to her death.
The jury found in favor of the proponent, Rita Jan Gray Pendergrass. Judgment was entered ordering the will admitted to probate. A motion for new trial was denied and the Barksdales appealed.
In a proceeding to probate an alleged lost or destroyed will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts:
(1) The existence of a willan instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator. Tit. 61, § 24, Code 1940; Lovell v. Lovell, 270 Ala. 720, 121 So. 2d 901; Jordan v. Ringstaff, 212 Ala. 414, 102 So. 895;
(2) The loss or destruction of the instrument. Brunson v. Brunson, 278 Ala. 131, 176 So. 2d 490; Lovell v. Lovell, supra; Jordan v. Ringstaff, supra;
(3) The nonrevocation of the instrument by the testator. Lovell v. Lovell, supra; Jaques v. Horton, 76 Ala. 238;
*270 (4) The contents of the will in substance and effect. Lovell v. Lovell, supra; Jordan v. Ringstaff, supra.
The first question then is whether there was a validly executed will. It is not necessary that the attestation be at the personal request of the testator. It is sufficient if done in testator's presence with his knowledge and consent expressed or implied. Fulks v. Green, 246 Ala. 392, 20 So. 2d 787; Ritchey v. Jones, 210 Ala. 204, 97 So. 736.
The testator does not have to tell the subscribing witnesses that the instrument is his will, or to inform them of its contents. Fulks v. Green, supra; Massey v. Reynolds, 213 Ala. 178, 104 So. 494.
It is not necessary for the witnesses to actually see the testator sign his name. Ritchey v. Jones, supra; Woodruff v. Hundley, 127 Ala. 640, 29 So. 98. The testator may acknowledge to the subscribing witnesses that it is his signature on the instrument by his express words or by implication from his conduct and from the surrounding circumstances. Fulks v. Green, supra; Stuck v. Howard, 213 Ala. 184, 104 So. 500.
Assignments of Error 31, 33, 34 and 35 are that the trial court erred in overruling appellants' motion for new trial. Appellants argue the ground of the motion that the verdict was not sustained by the great preponderance of the evidence.
The evidence produced at trial showed that Charles M. Scott, a Ft. Payne attorney, prepared a will for Mrs. Henry in November of 1963. She did not execute the will in Scott's office because she wanted to "get her own witnesses" in Collinsville where she lived. Scott subsequently made several minor changes in the will and mailed her a final version in January of 1964. Rita Jan Gray was named as beneficiary in every version of the will.
The evidence also showed that sometime around 1964, Bill Cook, Jack Farmer and Cecil Sharp met at Sharp's funeral home and witnessed Mrs. Henry's signature on a document. The testimony adduced at trial indicated that there was some doubt as to whether each of the witnesses knew that the document was a will. Jack Farmer was deceased at the time of the trial. Witness Bill Cook thought that Mrs. Henry mentioned that the document was a will at some time, but Cecil sharp could only say that Mrs. Henry wanted him to witness a signature. Nevertheless, it is apparent that the requirements of Tit. 61, § 24, supra, were met since both Cook and Sharp witnessed a signature which Mrs. Henry acknowledged as her own.
The second thing which the proponent must prove is the loss or destruction of the instrument. Billy McDowell, who rented an apartment from Mrs. Henry between 1967 and 1969, testified that Mrs. Henry showed him a will; that she said Charles M. Scott prepared it; that Cecil Sharp's name was on the will as a witness, and that Rita Jan Gray was the sole beneficiary. He also said that Mrs. Henry kept the will in a purse under a mattress in a spare room. Floyd Gray, the father of the beneficiary, testified that he saw one of Mrs. Henry's nephews at her house shortly after her death. Willard Reaves, an employee of the funeral home, testified that several of Mrs. Henry's relatives visited her house that day after she died. There was also an abundance of testimony that the will might have been lost or destroyed by accident. Finally, attorney Scott testified that several weeks after Mrs. Henry's death he searched the house himself. Proponent Rita Jan Gray Pendergrass subsequently filed an application to compel production of the will. Appellants Barksdale responded "That the said purported will, if executed, has been destroyed prior to the death of the Testatrix, and was not found in her possession nor among has [sic] effects at the time of her death, and is presumed, *271 if ever executed, to have been destroyed in accordance with law."
The third element of proof involved the presumption of revocation. When the will is shown to have been in the possession of the testator, and is not found at his death, the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of rebutting it is on the proponent. Lovell v. Lovell, supra; Jaques v. Horton, supra.
Billy McDowell, attorney Scott, and Mildred Johnson, a former neighbor of Mrs. Henry, testified that Mrs. Henry said that she did not want her nieces and nephews to have anything she had; that she had always made it abundantly clear that she wanted to select somebody other than her nieces and nephews; that she was afraid they were going to get her property; that she knew that her nieces and nephews would get her property if she died intestate; that she wanted Rita to have it, and that this was her fixed opinion.
Finally, proponent offered the copy of the will in evidence as proof of its contents.
A jury question was adequately presented under the authorities cited supra, and the jury found for the proponent.
The refusal of the trial judge to grant a new trial on the ground that the verdict is contrary to the weight of the evidence will not be reversed unless, after allowing all reasonable presumptions as to its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court reviewing the cause on appeal that it is wrong and unjust. Alabama Great Southern Railroad Co. v. Evans, 288 Ala. 25, 256 So. 2d 861; Southern Railway Co. v. Reeder, 281 Ala. 458, 204 So. 2d 808.
After reviewing the record, we cannot say that the trial judge erred in denying appellant's motion for new trial.
Assignment of Error 17 is that the trial court erred in overruling appellants' motion for a directed verdict. Clearly, there was a scintilla of evidence under the law of the case as outlined above. ARCP 50(e).
Assignment of Error 16 is that the trial court erred in admitting into evidence the unsigned and unwitnessed copy of Mrs. Henry's will. Appellants contend that before a purported copy of a lost will may be introduced into evidence, the proponent must overcome the presumption of destruction.
This question was considered in Jaques v. Horton, supra, where it was said:
But appellants contend that the copy of the will was not admissible in evidence because neither Bill Cook nor Cecil Sharp could identify the copy. They did not read the will and it was folded so that only the witness signature lines were visible.
While the usual method of authenticating a copy is by the testimony of *272 someone who has compared the copy with the original and found the copy to be correct, other evidence may suffice. The case of Ford v. Teagle, 62 Ind. 61, answers appellants' contentions where it states:
In the instant case, Billy McDowell testified that Mrs. Henry showed him her will; that he remembered seeing Cecil Sharp's signature; and that Mrs. Henry told him that attorney Scott had written the will, and that Rita Jan Gray was her sole beneficiary. It would appear that there was sufficient evidence from which to identify the copy.
Assignments of Error 2, 3, 5, 6, 7, 8, 9, 10, 14 and 15 charge that the court erred in overruling various objections to the introduction of evidence concerning the execution of the will and whether the witnesses were, in fact, aware that the document was a will. Since we have already stated that the will was properly executed, we need not consider these assignments.
Assignments of Error 1, 11, 21 and 22 are that irrelevant and immaterial evidence was admitted over appellants' objection. We are convinced that if there was any error in admitting this evidence, it was without injury. Supreme Court Rule 45. An example is Assignment 1 which charged error in the failure of the court to exclude the answer to the question, "During that time did they become close? Did Mrs. Henry and Rita become close? A. Oh, yes, and Mr. Henry thought Rita hung the moon." The non-responsive part of the answer should have been excluded but in context of the testimony, the colloquialism as to what Mr. Henry "thought" did not amount to prejudicial error.
Other argued assignments of error are concerned with the refusal of the court *273 to give some 5 written requested charges for the appellants.
ARCP 51 provides:
The record shows no such objection. Thus, any error connected with these charges must be deemed waived.
Affirmed.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | September 25, 1975 |
51444891-b7e1-4b36-bc68-1fe04d3409fe | Millsap v. Williamson | 320 So. 2d 649 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 649 (1975)
Mary Elizabeth MILLSAP
v.
Franklin WILLIAMSON et al.
SC 400.
Supreme Court of Alabama.
October 2, 1975.
Kenneth Cooper, Bay Minette, for appellant.
Larry U. Sims, Mobile, for appellees.
BLOODWORTH, Justice.
Appeal by appellant (plaintiff below) from a judgment and jury verdict for appellees (defendants below) after motion for new trial was overruled.
*650 This action was commenced, and trial had, before the advent of the A.R.C.P. Prior to the taking of testimony in the case-in-chief, appellees filed a motion in limine, asking the court to restrain appellant's counsel from making any comment before the jury concerning certain offers of compromise made by appellee City of Evergreen. The court granted appellee's motion to which appellant duly excepted. Upon being questioned by appellant as to the scope of this ruling, the court responded by stating: "What I am saying is that I am not going to allow counsel for the plaintiff to go into any of the discussions back and forth with reference to compromise in this matter." He added that the ruling applied only to the Mayor of the City of Evergreen.
The suit is for damages allegedly caused by appellees in wrongfully taking 182 pieces of silverware belonging to plaintiff from her house (Count One) and for damages allegedly caused by appellees in wrongfully and wantonly breaking into the house and trespassing thereon (Count Two). Six pleas were filed by appellees: the first is a plea of not guilty; the second, third and fourth are pleas of justification; the fifth is a plea of implied consent; and the sixth is a plea of governmental immunity. No demurrers were filed to the first five pleas. Demurrer was filed to plea six but no ruling was made thereon. Neither the final argument nor the oral charge refers to plea six.
The case was submitted to the jury on Count Two, Count One having been eliminated. After jury verdict for appellees-defendants, judgment was entered accordingly. When the motion for new trial was overruled, this appeal followed.
It appears from the evidence in this cause, that one Gene Hayes reported to the City of Evergreen that he observed a big stream of water running down a light fixture on the front porch at appellant's unoccupied dwelling house in Evergreen. Representatives from the water and police departments were sent to the house by the City Clerk to check on the leak. Mr. W. C. McGowin, father of appellant, was called at his home at Bay Minette by the City Clerk and advised of the situation. The Clerk testified he told her to do what they could. He testified that he told her not to send anyone out to find the leak because the water was turned off. The witness left his home in Bay Minette and arrived an hour later at the house. In the meanwhile, employees of the city water department, accompanied by the Chief of Police, went to the home. They observed the leak and tried unsuccessfully to close the water valve. One employee entered the house by removing a screen over a sink in the kitchen and another entered by going in an upstairs window. One employee removed two doors from their hinges, replacing them later. The employees testified that they found the house badly disarrayed, magazines and drawers were in disarray and some drawers were pulled out of dressers. The city employees denied taking anything from the house or doing any of the damage for which appellant claims. The employees also testified that Mr. McGowin, appellant's father, thanked them for what they had done in protecting the property, and wanted to fill out a "house check" authorizing the police to check on the house in the future. He did not appear upset or angry and demurred to the suggestion that he accompany the employees back to the house to let them show him what they had done. He said he had been in the house and everything was all right.
Appellant testified that she had been away for nearly three weeks. She said that keys to her house had been misplaced although she did not say appellees had taken them. She stated they could have been secured by an unauthorized person or persons. Silverware was missing although she admitted that she did not know who took it and that some of the missing pieces had *651 been stolen several years before. She testified she personally thanked the City Clerk for calling her father.
Appellant presented an expert appraiser, C. W. Coleman, who was offered to show the damages to the house. He testified that he had never seen the house before January 13, 1970, the date of the incident, nor until two and one-half years after that date. He admitted his valuation was based on what others told him.
Appellant first argues that error was committed by the trial judge in granting appellees' motion in limine.
Although conceding that offers of compromise are inadmissible, appellant contends that admissions against interest are not. She says that the trial judge should have heard all the evidence and then left it to the jury to determine whether the proffered testimony was a "compromise" or an "admission against interest."
On the other hand, appellees argue that the ruling was correct because the testimony produced in support of the motion clearly shows that the material excluded was an inadmissible offer of compromise.
Appellees' brief summarizes the testimony on this point as follows:
Both parties cite 31A C.J.S. Evidence § 289 at pages 28-29 as authority for their respective positions, viz:
We agree with appellees that the first portion of the quoted section states the rule which governs us in this case and that it is clear that what is involved here is an offer of compromise which was properly *652 excluded from the jury's consideration. See also National Security Fire & Casualty Company v. Hodgin, 55 Ala.App. 268, 314 So. 2d 871 (1975).
Appellant next contends that it was error for the court to sustain appellees' objections to testimony by C. W. Coleman as to the amount of damages allegedly suffered by appellant and to refuse to give her charge number 2, relating to damages.
This Court has long held that where the jury has rendered a verdict for defendant, and plaintiff appeals, the error, if any, in sustaining an objection to testimony as to damages or in refusing plaintiff's charges as to damages, is error without injury and cannot be made the basis for a reversal on such ruling. Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So. 2d 810 (1971); Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448 (1965); Roll v. Dockery, 219 Ala. 374, 122 So. 630 (1929).
Moreover, the plaintiff subsequently elicited the same testimony as to damages from another witness. Additionally, the witness was not clearly shown to be sufficiently acquainted with the property, and the alleged damages thereto, before the alleged trespass or immediately afterwards.
Finally, we hold that there was no error in the trial court's overruling appellant's motion for new trial. The "rules governing our review in such instances are well known. See our recent decision in Hubbard Brothers Construction Company etc. v. C. F. Halstead Contractor etc., 294 Ala. 688, 321 So. 2d 169 (1975).
Affirmed.
HEFLIN, C.J., and MERRILL, MADDOX, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur. | October 2, 1975 |
d47816ba-e959-4607-9e4b-6fa5ca8d2531 | Alabama Football, Inc. v. Stabler | 319 So. 2d 678 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 678 (1975)
ALABAMA FOOTBALL, INC., a corp.
v.
Ken M. STABLER.
SC 1131.
Supreme Court of Alabama.
September 25, 1975.
*679 S. P. Keith, Jr., Birmingham, for appellant.
Beddow, Fullan & Vowell, and Frederick A. Erben, Birmingham, for appellee.
SHORES, Justice.
Stabler filed a complaint on December 4, 1974, seeking a declaratory judgment and other relief, contending that the defendant had breached its contract with Stabler by failing to pay the balance due in 1974 under the contract between the parties; that the terms of the contract prohibited him from negotiating a contract with any other professional football club; and that irreparable damage would result to him if the contract was not held to be null and void.
After a hearing, the trial court entered its judgment on January 6, 1975, holding that the contract between Stabler and Alabama Football, Inc. had been breached by Alabama Football, Inc. and that Stabler was free from any obligation under any of the terms of the contract.
This appeal is from that judgment.
Stabler is a professional football player. In April, 1974, he signed an agreement with Alabama Football, Inc., which was *680 effective immediately, and which in part provided that Alabama Football, Inc. would pay him $50,000 upon signing and an additional $50,000 in the year 1974. The agreement provided that Stabler would play football for Alabama Football, Inc. for seven years after the expiration of his existing contract with the Oakland Raiders for a total consideration of $875,000, $100,000 of which was the bonus for signing and payable in 1974, $100,000 payable in 1975, and $135,000 per year thereafter through 1980.
The contract also prohibited Stabler from executing any other contract with any other football franchise or team in any football league.
The $50,000 was paid upon execution of the contract. The record indicates that at the time the contract was negotiated, some discussion was had regarding looking into the possibility of some deferred compensation plan, whereby Stabler might avoid taxes on monies due in 1974. It was subsequently determined that no effective means could be worked out to avoid taxes on the monies to be received in 1974. When this was discovered, Stabler asked for the balance due him. He received $10,000 of the balance on May 20. In June, he was told that there was no money available to pay the balance; but on June 28, an agreement was entered into which set up a schedule of payments for the $40,000 remaining unpaid. $10,000 was paid under this arrangement, but the remaining payments were not made as they became due. $30,000 remained due at that time. On October 29, Alabama Football, Inc. delivered a note to Stabler for the $30,000 payable on November 29, 1974. When this note was not paid, Stabler filed this suit seeking cancellation of the contract, and also asked the court to issue a temporary restraining order prohibiting the use of his name by Alabama Football, Inc. This was granted and was finally made permanent.
Appellant argues, on appeal, that the trial court erred in refusing to dismiss the complaint on the ground that no justiciable controversy existed between the parties. We disagree. Stabler contended that he was entitled to rescind the contract between him and Alabama Football, Inc. on the ground that it had breached the contract between them; that it prohibited him from negotiating with any other professional football team; that repeated demands had been made on Alabama Football, Inc. for the payment of the amounts promised him in 1974; that Alabama Football, Inc. had used the fact of Stabler's signing with it to promote ticket sales and to recruit other professional football players; and that it was having financial problems which prevented its ability to live up to the contract between them. At the time of the hearing, the team had no money on deposit in a bank; the chairman of the board of Alabama Football, Inc. testified that the team was unable to pay the $30,000 due Stabler at the time of the hearing; and it had been unable to pay either the September or October installments worked out by the June 28 agreement. The contention of Alabama Football, Inc. was that although it had not paid the $30,000 when due, it was trying to work out its financial problems, which the record indicates were formidable. Mr. Putnam, chairman of the board of Alabama Football, Inc., testified at the hearing in this cause that, at that time the team had indebtedness in excess of $1,600,000, and that it was overdrawn some $67,000 at the bank.
Under these circumstances, we cannot say that a justiciable controversy did not exist between the parties, which was subject to resolution by the trial court. Teal v. Mixon, 233 Ala. 23, 169 So. 477 (1936).
Appellant argues that Stabler was not entitled to a judgment rescinding the contract, because he made no offer to restore the money which had already been paid to him under the contract. While the general rule supports this argument, M. C. *681 Dixon Lumber Co. v. Mathison, 289 Ala. 229, 266 So. 2d 841 (1972), it is not absolute. Stabler argues, and the trial court was of the opinion that, under the facts of this case, Stabler was under no obligation to restore the money paid to him. We agree. Obviously, contracts involving professional athletes are somewhat unique. The evidence indicates that Alabama, Inc. benefited from the fact that Stabler had signed a contract to play football with it beginning in 1976. It exploited his notoriety as a successful quarterback with the Oakland Raiders to sell tickets to ball games played in 1974; he appeared at press conferences to publicize Alabama Football, Inc. and the World Football League. While it is true that the general rule is ". . . a party may not disaffirm a voidable contract and at the same time enjoy the benefits received thereunder," Betts v. Ward, 196 Ala. 248, 251, 72 So. 110, 112 (1916), such rule must be applied to comport with general equitable principles. Dermott Land & Lumber Co. v. Walter A. Zelnicker Supply Co., 271 F. 918 (8th Cir. 1921).
The record is replete with indications that Alabama Football, Inc. was not able to fulfill its contract with Stabler. He was not paid the amount promised him in 1974, and the team was unable to pay him. Yet, under the contract, he was prohibited from negotiating a contract with any other team so long as he was under contract with Alabama Football, Inc. We agree with the trial court that the balancing of the equities would not require Stabler to return the money received during the year 1974, since there was evidence to support a conclusion that Alabama Football, Inc. had received benefits under the contract which Stabler was entitled to be paid for. We note also that the trial court, in holding the contract between the parties null and void, also cancelled the $30,000 note payable to Stabler, finding that balancing the equities between the parties could best be achieved in this manner.
It is next argued by appellant that notice of rescission is a condition to such action, and that it received no notice from Stabler of his intention to rescind. This court has held that ". . . where there is a contract involving mutual continuing duties on the part of both parties, and one party has breached, but has not repudiated, the contract, it is the duty of the other before rescission to give notice and opportunity to live up to the contract. . .' "Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 310, 101 So. 2d 78, 85 (1957). The purpose of such notice is to give the breaching party a chance to perform. This does not mean, however, that such notice is always a prerequisite to rescission. The conduct of the parties themselves may vitiate the necessity of this requirement. See Fromm Sales Co. v. Troy Sunshade Co., 222 Md. 229, 159 A.2d 860 (1960). Indeed in the instant case, Stabler made repeated demands upon the appellant for the amount of the bonus due him. In fact, the appellant was given an opportunity to perform through the supplemental agreement and schedule of payments agreed upon on June 28, 1974. When it did not meet the payments agreed upon in that agreement, Stabler accepted a note due November 29, 1974. This note was not paid either. It is difficult to determine what more Stabler could have done to give appellant an opportunity to perform its part of the agreement. A formal notice of intention to rescind, under the facts of the instant case, was hardly necessary to give appellant an opportunity to perform; and the trial court correctly held that Stabler was relieved of this requirement before he could maintain his suit.
It is next submitted by appellant that the breach in the instant case was not substantial and that a slight or casual breach will not justify rescission. Birmingham News Co. v. Fitzgerald, 222 Ala. 386, 133 So. 31 (1931). While this is a good statement of the general rule, the *682 appellant overlooks a universal rule more applicable to the facts of this case. The evidence adduced below relating to the financial condition of appellant is uncontradicted. It overwhelmingly supports a conclusion that it was unable to perform the contract with Stabler. While it is true that financial inability to perform ". . . whether due to . . . poverty, [or] financial panic . . ." 17 Am.Jur.2d, Contracts § 415, does not excuse nonperformance of a contract, it is equally true that:
Since there was substantial evidence from which the trial court could have concluded that appellant was unable to perform its contract with Stabler, we find no basis for reversal on this point.
It is finally argued that the trial court erred in allowing the deposition of Stabler into evidence. The basis of this contention is that Stabler's deposition was taken within thirty days after service of the summons and complaint. ARCP 30 provides that a plaintiff must wait thirty days after service to take a deposition unless leave of court is obtained. This deposition was taken within thirty days and, although the appellant filed an objection to the taking of the deposition, there is nothing in the record to indicate that the court ruled on the objection. There is, therefore, nothing for this court to review under the assignment of error on this issue.
Finding no error to reverse, the decree appealed from is, therefore, affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | September 25, 1975 |
db71095a-60db-4b3d-9344-dae6eecbb281 | Sibley v. Adams | 324 So. 2d 291 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 291 (1975)
In re John D. SIBLEY and Charles J. Smith
v.
Willard E. ADAMS, Sr., and Brenda H. Adams.
Ex parte John D. Sibley and Charles J. Smith.
SC 1516.
Supreme Court of Alabama.
November 20, 1975.
Wade H. Morton and Bryant A. Whitmire, Birmingham, for petitioner.
BLOODWORTH, Justice.
Petition of John D. Sibley and Charles J. Smith for writ of certiorari to the Court of Civil Appeals to review and revise judgment and decision of that Court in Sibley, etc. v. Adams et al., 56 Ala.App. 572, 324 So. 2d 287. The petition for certiorari is sought on a "conflict" basis and that "a material question requiring decision is one of first impression in Alabama." Rule 39. Writ is denied.
Petitioners contend that the decision of the Court of Civil Appeals, which affirmed a judgment in trespass against the master where the proof fails to show that the master participated in, authorized, directed, or ratified, the trespass, is in conflict with our decisionsprincipally Osborn Contracting Company v. Alabama Gas Corporation, 273 Ala. 6, 135 So. 2d 166 (1961). It is charged that the latter decision "has not been overruled or modified." Osborn followed this Court's decision in City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389 (1903). Since doubts appear to linger as to the viability of City Delivery Co. v. Henry, supra, and its progeny, we have undertaken to write this short opinion to indicate our agreement with the Court of Civil Appeals' opinion.
In 1964, Mr. Justice Simpson authored for the Court the opinion in Aggregate Limestone Co. et al. v. Robison, 276 Ala. 338, 161 So. 2d 820 (1964), which held Act 624, [Tit. 7, § 217(1)] to be constitutional. *292 The opinion added that "It may be well to advert to § 176(1) et seq., Tit. 7, Code of Ala. as amended §§ 1 to 6, inclusive, Act No. 544, Gen.Acts 1957)." Justice Simpson refers the reader to Atlantic Coast Line R. Co. v. Kines, 276 Ala. 253, 160 So. 2d 869 for a discussion of that statute. Then he adds:
In 1970, the Court of Civil Appeals, in Roberson v. Harris, 45 Ala.App. 537, 233 So. 2d 96 (per Wright, J.) restated the holding that § 217(1), Tit. 7, was valid, following Aggregate Limestone Co. v. Robison, supra.
Moreover, since the advent of A.R.C.P. we have added reason to support these conclusions. See Rules 1, 2, 8, 18, 20, Appendix II, A.R.C.P.
Writ denied.
HEFLIN, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | November 20, 1975 |
5b7b6a19-046e-4614-9a6a-2966a80eb670 | Hill v. State | 321 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 713 (1975)
In re Marvin HILL, Jr.
v.
STATE.
Ex parte Marvin Hill, Jr.
SC 1531.
Supreme Court of Alabama.
November 13, 1975.
Bedford & Bedford, Russellville, for petitioner.
None for respondent.
BLOOD WORTH, Justice.
Petition of Marvin Hill, Jr. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hill v. State, 56 Ala.App. ___, 321 So. 2d 708.
Writ denied.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | November 13, 1975 |
78f8c9b1-917f-4acf-80be-0a9b86ef8555 | Loveless v. Graddick | 325 So. 2d 137 | N/A | Alabama | Alabama Supreme Court | 325 So. 2d 137 (1975)
Ralph LOVELESS
v.
Charles GRADDICK et al., etc.
SC 1307.
Supreme Court of Alabama.
December 4, 1975.
*138 Cunningham, Bounds & Byrd and John T. Crowder, Jr., Mobile, for appellant.
Wilkins & Druhan and Michael A. Wermuth, Mobile, for appellees.
BLOODWORTH, Justice.
This is an appeal from a summary judgment granted the defendants in an action of libel.
Plaintiff Loveless and defendant Graddick were both candidates for the office of District Attorney of Mobile County in the general election held November 5, 1974.[1] On October 22, 1974, plaintiff sued defendants Graddick, M. Rout Hudson and certain fictitious persons for libel claiming $100,000 damages. The complaint charged that defendants falsely and maliciously published, or caused to be published, an advertisement in THE MOBILE PRESS REGISTER on Sunday, October 13, 1974, of and concerning the plaintiff, and with intent to defame plaintiff, the following part of said ad being in large, conspicuous print:
"The voters of Mobile County should insist that Loveless withdraw from the race."
"Pd. Pol. Adv. by M. Rout Hudson, Mobile, Ala."
A copy of the entire article is attached to the complaint. A copy hereinafter appears.
*139 Plaintiff alleges that the article by innuendo stated plaintiff was facing criminal prosecution for fraud, which statement was and is false. Plaintiff further avers "That the natural and probable implication from the article in the minds of the average lay reader was that the Plaintiff was presently being prosecuted for criminal fraud which was and is false." Then follow averments of damage to reputation and standing in the community, etc. The advertisement is as follows:
*140 A motion for leave to depose defendant Graddick before the election was denied. [Graddick's deposition was ultimately taken January 21, 1975.] Graddick's motion to dismiss the complaint was likewise denied. After several requests for admissions by defendants and answers thereto by plaintiff, defendants filed answer: denying the article is libelous per se or per quod; pleading truth as a defense; pleading privilege; and, pleading the absence of malice within the ambit of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964). The defendants moved for summary judgment. A response to the motion for summary judgment was filed by plaintiff.
On April 11, 1975, motion for summary judgment was granted and the complaint dismissed with prejudice. Hence, this appeal.
The motion for summary judgment is supported by pleadings and exhibits, requests for admissions and answers thereto, deposition of defendant Graddick, an affidavit by Graddick and an affidavit by plaintiff Loveless.
From these documents it appears that defendant Graddick: does not recall who requested information regarding the suit from the Chattanooga, Tennessee, Chancery Court; denies he was concerned that the article was libelous but admits that he consulted with five lawyers before running it; states he had no knowledge of any pending criminal charges of fraud against plaintiff; states he doesn't know if the charges are true or notall he knows is that the charges are presently pending; states he left it to the voters to decide on November 5th (the election date) whether they thought plaintiff should withdraw from the race by voting for him (Graddick); denies that he intended to imply that plaintiff had done something wrong; states it did not occur to him that lay people would read the headlines and get the idea that plaintiff was facing criminal fraud charges; denies intending to hurt plaintiff by publishing the article; states he published it "to inform the people of Mobile County of the man's situation in Tennessee, going toward, again, his integrity"; states he had no knowledge that any information contained in the ad was false; states he published the ad in good faith solely to inform the electorate of the background of one of its candidates.
It further appears from the admissions of fact: that the paragraph in the complaint "7 Alabamians are Defendants in Civil Suit" and photocopy of such article is a genuine photocopy of an article appearing in THE MOBILE PRESS-REGISTER on March 23, 1972; that the plaintiff was a party cross-defendant in the suit in Chancery Court in Chattanooga, Tennessee, and, that the "Amendment to Cross-claim," in that suit, alleges, inter alia, that plaintiff and certain others had perpetrated a fraud upon the cross-plaintiff in the suit.
Plaintiff-Loveless contends on this appeal that the trial judge erred in granting summary judgment because:
First, there is a genuine issue as to a material factnamely, the interpretation to be placed on the "headline" and the entire article by the average lay reader as to whether it imports a criminal charge of fraud;
Second, there is a genuine issue as to a material factwhether the article is true in "all material respects since the headline, and the article as a whole, may be said to impute" that Loveless was facing criminal fraud charges;
Third, the "privilege" of New York Times v. Sullivan would be inapplicable if plaintiff-Loveless had been permitted to show "actual malice" to the jury and granting summary judgment is inappropriate to dispose of these issues.
Defendants-Graddick and Hudson answer these contentions, thusly:
First, "truth" is a complete defense. All the documents reveal that all the material *141 which went into the ad was, in fact, truenothing implied Loveless was facing criminal chargesLoveless himself admitted being a defendant in the pending lawsuit wherein he, and others, were charged with fraudthus, there was no genuine issue as to any material fact;
Second, the ad showed on its face that the charges were "civil" and Loveless cannot enlarge on the plain meaning of the words, by innuendo or implication, beyond their natural and obvious import;
Third, there is the issue of the constitutional "privilege" under New York Times v. Sullivan. Loveless and Graddick were candidates for District Attorney, and as such, fall within the ambit of the "Times Rule" that public officials cannot recover for libel unless proof is offered that the publication was made with "actual malice" "that is, with knowledge that it was false or with reckless disregard of whether it was false or not." It is contended by defendantsGraddick and Hudson that all the evidence offered on summary judgment is uncontradicted and is to the effect that defendants neither knew that any of the matter published was false nor did they recklessly disregard any matter of fact coming to their attention concerning the material used in the ad. Defendants conclude that there is not a scintilla of evidence to warrant the case going to a jury.
Having set out the contentions of the parties, we move to consider the fundamental issue presented to us by this appeal as to whether there is a genuine issue as to any material fact under Rule 56, A.R.C.P., Summary Judgment. Put differently, was summary judgment appropriate?
In order to determine this issue we must first consider the following threshold questions.
First, may the ad be said to "impute" criminal fraud, and, if so, is there then presented a genuine issue on any material fact?
Second, assuming, arguendo, that the ad does impute criminal fraud, nevertheless, does this case fall within the "privilege" of New York Times v. Sullivan and, absent an allegation or showing of actual malice, is there then presented a genuine issue as to any material fact?
It is appropriate that we set out those basic principles which govern us in our review of the granting of summary judgment.
The party moving for summary judgment must clearly show, i.e., has the burden to show, that the other party could not recover "under any discernible circumstances." Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So. 2d 818 (1975); see also, Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So. 2d 686 (1975).
A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law. Birmingham Television Corporation v. Water Works, 292 Ala. 147, 290 So. 2d 636 (1974).
The moving party has "the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party." Adickes v. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
Likewise, we consider the "Scintilla Rule" in connection with summary judgment. We held in Folmar v. Montgomery Fair Company, Inc., supra, that if there is a scintilla of evidence produced in plaintiff's favor on the issue of defendant's negligence, then summary judgment will not lie. As the majority of this Court pointed out therein, the plaintiff might escape having summary judgment rendered against him, yet still suffer the ignomy of defeat by way of directed verdict.
*142 To return now to the question first posed as to whether summary judgment was appropriate, we answer in the negative. We are convinced that there are two genuine issues of material fact: first, whether the ad may be said to charge criminal fraud; and, second, whether, assuming the applicability of the Times Rule, there is a sufficient showing of "actual malice."
It seems to be the general rule that the test to be applied in determining the defamatory nature of an imputation is that meaning which "would be ascribed to the language by a reader or listener of ordinary or average intelligence, or by a `common mind'." 50 Am.Jur.2d Libel and Slander § 138. Thus, in construing newspaper ads it "must be construed in the sense which readers of common and reasonable understanding would ascribe to it." 50 Am.Jur. Libel and Slander, supra.
other authorities state, viz:
"Words should be construed according to their plain and obvious meaning. The construction a court should adopt is to be derived from the expressions used, as from the whole scope and apparent object of the writer. It is the manner in which they will be most probably understood. Words are to be understood in their plain and popular sense, in court as elsewhere. Words are to be construed as understood by mankind in general, in their ordinary meaning. The language of the alleged libel is to be understood as used in the ordinary and most natural sense. [Footnotes omitted.]"
§ 159 The Law of Libel and Slander in the State of New York, Seelman, Vol. 1.
The same general rule has been the rule of our cases. In McGraw v. Thomason, 265 Ala. 635, 93 So. 2d 741 (1957), this Court held:
"In determining their actionable character, the printed words are to be taken in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them. A forced construction is not to be put upon them in order to relieve the defendant from liability, nor are they to be subjected to the critical analysis of a trained legal mind, but must be construed and determined by the natural and probable effect on the mind of the average lay reader.
"Fraud" is defined in the dictionary as "an instance or act of trickery or deceit * * * the quality of being deceitful * * * etc." Webster's Third New International Dictionary [G. & C. Merriam Company, Publishers.]
Taking the ad as a whole, the headline, the news stories, and the imperative conclusion, and in light of the authorities, this Court, after mature consultation, considers that a genuine issue of a material fact was presented as to whether the words of the ad impute criminal fraud, taking them "in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them." McGraw v. Thomason, supra. To say more might jeopardize this cause on remand.
Moving now to the Times question, we have stated that we consider the question of "actual malice" presents a genuine issue as to a material fact.
The Times privilege is, of course, conditional not absolute, and damages may be recovered upon proof of "actual malice." Actual malice is defined in N.Y. Times v. Sullivan: "with knowledge that it was false or with reckless disregard of whether it was false or not."
We have carefully reviewed and re-reviewed the documents submitted on *143 summary judgment and must agree with the U.S. District Court in Goldwater v. Ginzburg, D.C., 261 F. Supp. 784 (1966), aff'd 2 Cir., 414 F.2d 324, cert. denied, 396 U.S. 1049, 90 S. Ct. 701, 24 L. Ed. 2d 695 that:
Again, as we heretofore expressed ourselves with respect to the first issue fraudwe would run the risk of jeopardizing this cause on remand to add anything more with respect to this issue.
We will say that there may be circumstances when a summary judgment is entirely appropriate in a libel action; for example, in a case of "absolute privilege." See Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359 (1964). Or, perhaps, in a case of "qualified privilege" where no proof of malice is shown, see Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 194 N.Y.S.2d 509, 163 N.E.2d 333 (1959).
We look with favor on a statement of the Fifth Circuit Court of Appeals to the effect that "summary judgment should be granted only when it is quite clear what the truth is." Croley v. Matson Navigation Company, 434 F.2d 73 (1970). It is not quite clear to us what the truth is here, for, as we have heretofore indicated, issues of material fact remain for resolution at trial.
Accordingly, we find the summary judgment to be premature.
Reversed and remanded.
HEFLIN, C.J., and MERRILL, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.
[1] Graddick was the successful candidate. | December 4, 1975 |
1ea0f436-3fce-4d29-a95f-c6abeddd6284 | Grimes v. State | 322 So. 2d 733 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 733 (1975)
In re Ulay Black GRIMES
v.
STATE.
Ex parte STATE of Alabama ex rel.
ATTORNEY GENERAL.
SC 1521.
Supreme Court of Alabama.
November 20, 1975.
William J. Baxley, Atty.Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State, petitioner.
SHORES, 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 Grimes v. State, 56 Ala.App. 439, 322 So. 2d 729.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | November 20, 1975 |
a092784f-d68f-4db8-8dc7-9c5a291e2aa7 | Traders & Farmers Bank v. Central Bank of Ala. | 320 So. 2d 638 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 638 (1975)
TRADERS & FARMERS BANK OF HALEYVILLE, Alabama, a corporation
v.
CENTRAL BANK OF ALABAMA, etc., et al.
SC 1087, 1087-X.
Supreme Court of Alabama.
October 2, 1975.
*639 Tweedy, Jackson & Beech, Jasper, for appellant.
Harris, Harris, Shinn & Harris, Decatur, for appellee and cross-appellant.
ALMON, Justice.
Plaintiff-appellant, Traders & Farmers Bank of Haleyville, is a state bank with its home office in Haleyville and branches at Double Springs and Addison. Application for the establishment of the branch at Addison was made on July 30, 1973, with both the State Superintendent of Banks and the Regional Office of FDIC in Atlanta, Georgia. Authority for the application was based on Act No. 606, Acts of Alabama, 1953. State approval was granted in September of 1973; FDIC approval in November of 1973. The Addition branch was opened for business on February 18, 1974.
Defendant-appellee, Central Bank of Alabama, is a national bank with its home office in Decatur with several branch offices, one of which is located in Winston County at Haleyville, and one of which is located in Cullman (near Addison). Appellee filed an application with the Comptroller of Currency of the United States of America for authority to establish a branch in Addison. The application was approved on or about April 4, 1974, and appellee planned to establish a branch in Addison.
On April 20, 1974, appellant filed a complaint in the Circuit Court of Winston County against appellee. The complaint alleged that the defendant was seeking to establish a branch bank in Addison by virtue of the provisions of Act No. 435, Acts of Alabama, 1973, as codified, Appx., Art. 11A(1/8), § 14(1k18a) (1973 Supp.), Code of Alabama 1940, Recompiled 1958. The complaint also alleged that Act No. 435 was a local law applying only to Winston County, which specified that it applied only to counties having a population of not less than 16,600 nor more than 16,950 according to the last or most recent federal decennial census. The complaint also alleged that Act. No. 435 was unconstitutional because notice was not published as required by Section 106 of the Constitution, and because the population range specified in the Act was not substantial and was not reasonably related to the purpose of the act, and because there had been no compliance with amendment 255 to the Constitution of Alabama requiring the approval of the qualified voters of Winston County for the approval of local laws applicable to that county.
*640 In paragraph 7 of the complaint the plaintiff alleged that it was presently conducting a branch bank in Addison and that it would be detrimental economically to appellant's branch bank already established in Addison for appellee to open a branch there.
Appellee's answer contained a counterclaim alleging that if Act No. 435 is invalid for any of the grounds set out in the original complaint, then Tit. 5, § 125, Code, supra, (restricting branch bank geographically to the parent bank's "principal place of business") and Amend. 255, Ala.Const., 1901, dictate that appellant also be permanently enjoined from further operating a branch bank in Addison.
Appellee later amended its answer and counterclaim to aver in the alternative that, if it was mistaken in its averments that the appellant had established its branch under the provisions of Act No. 435, then the appellant had established the same under the provisions of Act No. 606, Acts of Alabama, 1953, or Act No. 938, Acts of Alabama, 1961, and appellee averred that each of said Acts was unconstitutional for the reason that each of them violated Section 106 of the Constitution.
Appellant's application for a preliminary injunction was heard on May 6, 1974, and a preliminary injunction was granted. The hearing on the merits was held on June 27, 1974, and a final decree was rendered on August 14, 1974, holding that there was no legislative authority for either appellant or appellee to operate a branch bank in Addison. The decree enjoined appellee from establishing its proposed branch and enjoined the plaintiff from continuing the operation of the branch which it had established at Addison.
There have been three statutes in the last quarter century which have purported to authorize branch banking in Winston County. The first one was Act No. 606, enacted in 1953 (this act was later repealed by Act No. 939 in 1961); the second one was Act No. 938, enacted in 1961; and the third one was Act No. 435, enacted in 1973. The trial court found that authority for the application for appellant's existing bank had been based upon Act No. 606. However, Act No. 606 was expressly repealed by Act No. 939 in 1961 and was thus an inappropriate statute under which to make application. The court further found that neither Act No. 938 nor Act No. 435 provided any legislative authority for branch banking at Addison because both were local laws within the meaning of Art. 4, § 110, Ala.Const., 1901, and both failed to meet the requirements of Art. 4, § 106, as to notice and publication.
Appellant appealed from the decree to reverse the portion thereof enjoining it, and appellee cross-appealed assigning errors to reverse the decree enjoining it and to reverse the decree granting a preliminary injunction against it.
Appellant argues that it relied on Tit. 5, § 125(1), Code, supra, in establishing its branch in Addison. This section allows a bank such as appellant to branch in the county where it has its principal place of business if branching had been authorized by law on or before the effective date of the statute, which was June 21, 1955. Appellant submits that since Act No. 606 was passed some two years before Tit. 5, § 125(1) was passed, branch banking was authorized by law in Winston County at the time appellant opened its branch bank at Addison on February 18, 1974.
To sustain the validity of Act No. 606, appellant argues that the Act is valid on its face and that for the court to declare it unconstitutional the court would have to look to the House and Senate Journals to determine whether or not notice of the Act was given as required by Section 106 of the Constitution. This is precisely the procedure the court takes to determine whether the Journals affirmatively show, as the Constitution requires, that notice of a local *641 law is given since the courts take judicial notice of the Journals. Moog v. Randolph, 77 Ala. 597 (1884).
Furthermore, if branch banking was authorized in Winston County at the time of the passage of Tit. 5, § 125(1), then by its express terms it was not applicable to Winston County. This court, in discussing this statute, pointed this out in Security Trust & Savings Bank v. Marion County Banking Co., 287 Ala. 507, 514, 253 So. 2d 17, 22 (1971):
Appellant next argues that appellee has no standing to challenge the constitutionality of Act No. 606. Appellee counterclaimed in its answer, and it was admitted in appellant's answer to the counterclaim, that appellant's branch bank in Addison would compete with the business of appellee attributable to its Haleyville and Cullman branches. Clearly, the threat of competition is sufficient to provide standing to contest the legality of a competitor's facility. Whitney National Bank v. Bank of New Orleans, 116 U.S.App.D.C. 285, 323 F.2d 290 (1963); Commercial Security Bank v. Saxon, 236 F. Supp. 457 (D.C.D.C. 1964), aff'd, 385 U.S. 252, 87 S. Ct. 492, 17 L. Ed. 2d 343 (1966).
Finally, appellant argues that appellee is estopped from challenging appellant's statutory authority to continue operating its branch bank in Addison. Appellant bases this argument upon statements made by appellee's corporate officials in a hearing before the Comptroller of the Currency in 1973 to the effect that appellee had no objection to such an operation by appellant. Appellee does not deny that such a statement was made. However, appellee asserts, and it was uncontroverted by appellant, that appellee gave appellant notice during a telephone conversation a few days after the hearing that it would contest the right of appellant to establish a branch in Addison if appellant opposed appellee's efforts to do the same.
Reliance is an essential element of estoppel. Hall v. Gulledge, 277 Ala. 580, 173 So. 2d 571 (1965). We are the opinion that there was sufficient evidence for the trial court to conclude that appellant did not rely upon any statement made by appellee before the Comptroller of the Currency in establishing its branch bank in Addison.
Moreover, we are of the opinion that a position taken in a federal administrative hearing, where the issues are materially different, should not preclude a party in a state court from raising the constitutionality of a state act.
This is a classic example of a situation often referred to as a "Mexican standoff." Both banks attempted to establish a branch at Addison; both banks were proceeding under unconstitutional statutes; both banks assert the unconstitutionality of the statute under which the other attempted to branch; and both banks assert estoppel against the other contending that the other *642 is precluded from challenging the constitutionality of its statute. Resultno banks in Addison.
The judgment is due to be and is hereby
Affirmed.
HEFLIN, C.J., and MERRILL, MADDOX, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.
BLOODWORTH, J., recuses self. | October 2, 1975 |
1697a764-6893-4ceb-8723-aa38dfb8134c | Hughes v. Newton | 324 So. 2d 270 | N/A | Alabama | Alabama Supreme Court | 324 So. 2d 270 (1975)
Mary HUGHES
v.
W. G. NEWTON.
SC 1323.
Supreme Court of Alabama.
November 6, 1975.
Rehearing Denied January 9, 1976.
*271 Grover S. McLeod, Birmingham, for appellant.
Lyman H. Harris, Birmingham, for appellee.
JONES, Justice.
In the absence of statutory authorization to intervene in a third-party action under Tit. 26, § 312, Code, does the trial judge's order permitting intervention on behalf of the workmen's compensation insurance carrier pursuant to Rule 24, ARCP, constitute an abuse of discretion? Within the narrow factual context giving rise to this pivotal issue, we hold that the overruling of the motion to strike the petition for intervention was reversible error. We reverse and remand.
The essential facts are not in dispute. For personal injury incurred while employed by Mountain Brook Cleaners, a corporation, Mary Hughes was paid $2,982.56 in workmen's compensation benefits by the employer's insurance carrier, Employer's Casualty Company. She then filed a third-party action against W. G. Newton, the principal executive officer of Mountain Brook Cleaners, claiming negligent operation of defective machinery. Employer's, who was also Newton's liability insurance carrier, petitioned to intervene as a party plaintiff.
The employee-plaintiff moved to strike the intervention on the ground that, absent statutory authority, the granting of intervention constituted an abuse of discretion in that Employer's should not be permitted to sit on both sides of the counsel table. Central to this argument is the proposition that a party cannot sue himself. Hagood v. Goff, 208 Ala. 642, 95 So. 21 (1923).
Employer's contention is basically two-fold:
1. The 1947 amendment of § 312, eliminating the express right to intervene, did not have the effect of proscribing intervention.
2. Rule 24, ARCP, either permits intervention as a matter of right or vests in the trial court wide discretion in allowing intervention which has not here been abused.
*272 As to the first contention, we agree that the 1947 amendment does not have the legal effect of prohibiting intervention; rather, § 312, as amended, expressly retaining the right of reimbursement and omitting any reference to intervention, merely recognizes that the right to be reimbursed is not dependent upon the right of intervention.
Since the compensation carrier's right to intervene is neither statutorily authorized, nor statutorily prohibited, we look now to Rule 24.
Rule 24(a)(2)Intervention of Right permits a party to intervene "when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
Rule 24(b)(2)Permissive Intervention permits a party to intervene "when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
We believe there is a narrow field of operation under these two subsections of Rule 24 for discretionary permission to intervene in third party actions under § 312. Therefore, we shall return momentarily to a discussion of the guidelines for the exercise of this discretion applicable to the ordinary case.
The extraordinary facts of the present case, however, constrain us to hold that there is no field of operation for the discretionary allowance of intervention where the insurance company, as here, represents the third party defendant and is also seeking, through intervention, status as a party plaintiff. Such a patent conflict of interest exists as to bar the right of unencumbered intervention. The potential for collusion is so inherent as to preclude a showing to the contrary within the spirit of Rule 24.
The appellee relies on Varney v. Taylor, 71 N.M. 444, 379 P.2d 84 (1963), where the New Mexico Supreme Court reversed a lower court's decision denying intervention in a workmen's compensation case to an insurance company situated exactly as Employer's Casualty is here. The reason given by the New Mexico Court was that under the New Mexico Workmen's Compensation Act, the insurance company would forfeit its right to reimbursement if it were not made a party plaintiff. Even in that case, the Court limited the right of intervention by holding that "the intervention itself should not be made final until the main cause is ready for judgment, and, in the interim, that the insurance company is precluded from participating as a party plaintiff."
Such a result (i. e., limited or encumbered intervention precluding participation as a party plaintiff) would have been proper in this case. Under present Alabama law, however, there is no compelling reason to allow the insurance company to intervene in order to be subrogated to the employee's claim; and when, as in this case, it also insures the third party, unencumbered intervention should be denied. A similar result has been reached by several federal courts facing this problem. Gutowitz v. Pennsylvania R. Co., 7 F.R.D. 147 (E.D.Pa.1946); Christon v. United States, 8 F.R.D. 327 (E.D.Pa.1947); Greene v. Verven, 203 F. Supp. 607 (D. Conn. 1962).[1]
After disposing of the narrow issue involved here, we now return to a discussion *273 of the guidelines for allowing intervention in the ordinary workmen's compensation case brought under Tit. 26, § 312. Workmen's compensation cases are unlike the normal Rule 24 situation. Ordinarily, Rule 24 anticipates potential future litigation brought by or involving the intervenor. The purpose of allowing intervention in such cases is to discourage multiplicity of litigation and to relieve the intervenor from the possible prejudice of "stare decisis in later litigation involving the same questions of law and fact to which the unsuccessful applicant for intervention is finally a party." Committee Comments, ARCP, Rule 24. In the ordinary case, Rule 24 is to be liberally construed to allow intervention. See Atlantis Development Corp. v. United States, 379 F.2d 818 (5th Cir. 1967).
In the § 312 situation, however, no future litigation is contemplated.[2] The compensation carrier will be reimbursed from the employee's judgment, if any, whether or not it intervenes. Since the employee is seeking exactly the same recovery as the insurer, the usual case will be resolved by the final clause of Rule 24(a)(2), "... the applicant's interest is adequately represented by existing parties."
Thus, in the § 312 case, the motives for liberally allowing intervention are absent and the right to intervene by the compensation carrier should be more restricted than in other Rule 24 cases. Before intervention should be allowed over the objection of the plaintiff in a § 312 third party action, the applicant must meet a burden of showing to the satisfaction of the trial court that he can make a substantial contribution toward a favorable outcome of the plaintiff-employee's case.
A mere showing that the applicant is the employer or his compensation carrier and the extent of its right of reimbursement is insufficient to meet this burden. If, on the other hand, the applicant can demonstrate active participation in the preparation of the third party action; that it has in its possession significant information or data essential to the prosecution of the third party suit; or that the employee-plaintiff is inadequately represented or otherwise less likely to succeed in his effort to effect recovery without the intervenor's active participation; then, in such event unencumbered intervention (i. e., full participation in the litigation) should be allowed.
This is not to say that a petition to intervene in a § 312 third party suit, over objection and absent such showing, cannot be granted conditionally in order that the intervention be made final at the time of judgment to protect the intervenor's right of reimbursement. Likewise, nothing in this opinion is to be construed as preventing the interested parties from effecting reimbursement by agreement with or without active intervention. Moreover, we call attention to the fact that a nonparty can be protected by judgment under Rule 71, ARCP.
Reversed and remanded.
HEFLIN, C.J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] See also Fidelity & Casualty Co. of New York v. Bedingfield, 60 So. 2d 489 (Fla.1952) and Harrison v. Ford Motor Co., 370 Mich. 683, 122 N.W.2d 680 (1963).
[2] The employer or the insurance carrier is permitted by § 312 to bring suit only in the event the employee does not file suit against the third party within the time allowed by law. See Liberty Mutual Insurance Co. v. Lockwood Green Engineering, Inc., 273 Ala. 403, 140 So. 2d 821 (1962). | November 6, 1975 |
57cc99bd-9365-4fbc-97bf-30a96f802c58 | Huskey v. WB Goodwyn Co., Inc. | 321 So. 2d 645 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 645 (1975)
In re Robert William HUSKEY et al.
v.
W. B. GOODWYN COMPANY, INC., an Alabama Corporation, et al.
Ex parte Robert William Huskey et al.
SC 1249.
Supreme Court of Alabama.
November 6, 1975.
*646 Guy F. Gunter III, Opelika, for petitioners.
Samford, Denson & Horsley, Opelika, for W. B. Goodwyn Co., Inc., an Ala.Corp., opposed.
JONES, Justice.
This is a petition for a writ of mandamus from the Circuit Court of Lee County to require Judge L. J. Tyner to allow petitioners Robert Huskey, Aubrey Huskey, and Blanche Huskey to amend the complaint they filed against respondents W. B. Goodwyn Company and Pawnee Construction Company.
The Huskeys filed their original complaint on October 22, 1974, alleging damages to their medical office building as a result of defendants' trespass and negligence in performing construction work. After both respondents filed answers, a pre-trial conference was held and Judge Tyner entered a pre-trial order on March 26, 1975. Subsequently, on April 9, the petitioners moved the Court for leave to amend their complaint. The amended complaint added a claim for punitive damages, a claim for interference with the medical practice of Aubrey Huskey, and a third cause of action, alleging that a heart attack suffered by Blanche Huskey was a direct result of the respondents' activities. The amount of damages sought was raised from $12,000 for property damages to $140,000 for the additional claims of punitive damages, interference with medical practice, and personal injuries.
On April 14, 1975, respondents moved the Court to strike the third cause of action contained in the amended complaint or in the alternative to continue that cause until the next term of court. They moved the Court to strike the petitioners' entire amended complaint on April 16, and Judge Tyner entered such an order. The Huskeys then filed a petition for rule nisi and writ of mandamus in this Court. This Court entered an order on April 23 requiring Judge Tyner to show cause why he should not be required to vacate his order sustaining the respondents' motion to strike and why he should not allow the petitioners to amend. Judge Tyner answered the show cause order on may 23, forcing this adjudication on the writ of mandamus. We grant the writ.
This case presents two basic issues for review. First, is mandamus a proper remedy to review an order striking amended pleadings? Second, does the entry of a pre-trial order substantially foreclose further amendments to the pleadings?
On the first issue, both petitioners and respondents base their arguments upon the two recent Alabama cases, Ex parte Miller, 292 Ala. 554, 297 So. 2d 802 (1974), and Ex parte Stead, Jr., 294 Ala. 3, 310 So. 2d 469 (1975). Both cases address the issue of whether mandamus is an appropriate remedy for a party whose right to amend his complaint has been denied by the trial judge.
In the Miller case, the trial Judge had denied the petitioner's attempt to add two new defendants by amendment. Justice Coleman reviewed previous Alabama law to the effect that mandamus is only proper where adequate relief cannot be had by appeal. He observed that if the petitioner were denied relief through mandamus they would have to go through an entire trial against the originally named defendants before trying their case against the two additional defendants. Such a result, he concluded, rendered appeal inadequate in that case. Still, he cautioned that "[i]t is not to be assumed or understood . . . that mandamus will be allowed as a method of reviewing all rulings denying the right to amend a complaint or other pleading."
In Stead, the issue of whether mandamus was a proper remedy to review the denial of pleading amendments was addressed by Justice Faulkner. In the Stead case, the plaintiff had moved to continue the trial several times during a two-year period *647 between the first filing of the complaint and the proposed amendment. The amendment changed the entire theory of the action from a simple contract action to an action encompassing fraud, misrepresentation, negligence, and wanton breach of contract. Pointing out the petitioner's "long history of delays and continuances," Justice Faulkner concluded that this was one of the cases in which mandamus should not be allowed to review the ruling denying the right to amend. The rationale for denying mandamus in the Stead case was to weigh the prejudice to the opposing party against the possibility that the petitioner would have to go through a second trial. Where the trial on the issues would be unduly delayed or the opposing party unduly prejudiced, the petition should be denied.
Applying the Stead guidelines to the instant case, we find that the petitioners do not have a long history of delays in this trial; they have asked for no continuances and have offered no other amendments. Although it added a new cause of action for Blanche Huskey's heart attack, the amended complaint still arises from the same general fact situation involved in the original complaint. With a continuance for medical depositions, the respondents can defend the amended complaint as easily as the original claims for relief. The continuance will, of course, delay the trial, but the crux of the Stead test is whether the amendment will "unduly delay" the trial or "unduly prejudice" the respondents. We hold that in the context of this case, where the bad faith elements of Stead are absent, the trial is not unduly delayed and the respondents are not unduly prejudiced by the amended complaint; therefore, mandamus is the proper remedy.
Turning now to the second basic issue of this case, we must decide what effect the entry of a pre-trial order should have upon the right to amend pleadings. This question is unresolved in Alabama practice.
The practice in the federal system is not standardized. Many circuits adhere to the strict view that the pre-trial order should not be altered except to prevent manifest injustice. Idzojtic v. Pennsylvania R. Co., 47 F.R.D. 25 (W.D.Pa.1969); Ely v. Reading Co., 424 F.2d 758 (3d Cir. 1970). Other circuits require that Rule 16 be read in conjunction with Rules 1 and 15 to allow amendments when justice so requires. Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973); Bucky v. Sebo, 208 F.2d 304 (2d Cir. 1953); Dering v. Williams, 378 F.2d 417 (9th Cir. 1967).
The countervailing opinions of the federal circuits dealing with this problem diverge from a common philosophical origin. They attempt to "balance the need for doing justice on the merits between the parties (in spite of the errors and oversights of their attorneys) against the need for maintaining orderly and efficient procedural arrangements." 3 Moore, Federal Practice, § 16.20, at 1136 (1975).
The strict view of preserving the pre-trial order is grounded on a policy of expediency. To clear crowded dockets by obtaining admissions of fact and encouraging settlement, to prevent surprise by revealing lists of witnesses and expected testimony, to simplify the conduct of the trial by refining issues and amending pleadings are among the reasons advanced for strictly adhering to pre-trial orders. Courts following this view hold that the trial court has a right to expect that at pre-trial proceedings counsel will be as thoroughly familiar with the case as they will be at trial. McCarthy v. Lerner Stores Corp., 9 F.R.D. 31 (D.D.C.1949). In those circuits, the pre-trial order will generally not be modified without a showing of manifest injustice and the trial judge is given broad discretion to deny proposed amendments. Ely v. Reading Co., supra.
On the other hand, circuits which permit liberal amendment of pre-trial orders emphasize the need for doing justice between the parties over maintaining an orderly *648 procedure. These circuits read Rule 16 in conjunction with Rule 15 and "the mandate of Rule 1 that rules shall be construed to secure a `just' determination of every action." 6 Wright and Miller, Federal Practice and Procedure, § 1491 at 456 (1971).
In the 5th Circuit case of Wallin v. Fuller, supra, the court said, "Unbending adherence to the strictures of Rule 16 would, however, frustrate another broad policy of the federal rules favoring liberality of amendment. This policy is principally embodied in Rule 15, which deals with amendments to the pleadings. It is unlikely that the pretrial order under Rule 16 was intended to make the pleadings, and therefore Rule 15, obsolete."
In choosing from these two views a course of Alabama law, we draw upon both the taxtual additions to ARCP 15(b) and the committee comments to ARCP 15 and 16 to discern the thinking of the drafters. The primary textual difference between the Alabama and the Federal Rules regarding amended pleadings is the final two sentences of Alabama's Rule 15(b). They read, "An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires."
In his treatise on Alabama Practice, Champ Lyons, the Committee Reporter, admits that "it could be persuasively argued that the rules dictated the result commanded in the last two sentences of Rule 15(b) without their inclusion. However, Committee sentiment was heavily on the side of abundant clarity." 1 Lyons, Alabama Practice, § 15.5, at 308-9. In discussing the philosophy of Rule 15, Lyons says that it is the sine qua non for the philosophy of the entire ARCP that "pleadings are a means, not an end, and the action should be resolved on its merits, not upon technicalities.. . . Without [Rule 15's] permissive approach to the right to amend, the allegiance to substance over form which permeates these rules would not be attainable." 1 Lyons, Alabama Practice, § 15.1, at 308. Such statements indicate that in the balance between expedient disposition of law suits and full justice on the merits, Alabama's rules are weighted more heavily in favor of the latter.
To apply Alabama's policy of liberal amendments to the post pre-trial order situation, we refer to the Committee Comments to Rule 16 for guidance. The Committee seemed to be strongly opposed to following federal precedent in this area: "[a]s the Rule approaches middle age in the Federal System, its abuse has returned issue simplification to a level reminiscent of the common law technicalities it was designed to replace . . . this committee condemns the imposition of burdensome and often wasteful requirements on pre-trial preparation." Alabama Rules of Court, p. 66 (1975). Bearing this comment in mind, we find it unlikely that the Committee anticipated the rigorous enforcement of pre-trial orders practiced in those federal courts which expect the counsel to be as thoroughly familiar with the case at pretrial as they will be at trial.[1]
We believe that Alabama Rule 16 must be read in conjunction with Rule 15 and Rule 1; therefore, liberal allowance of amendment when justice so requires must take precedence over strict adherence to the pre-trial order in Alabama practice. The vast majority of federal courts adopting this approach have faced the issue in *649 the context of the trial or post-trial situation where amendments were offered to conform the pleadings to the evidence under Rule 15(b). It is important to note, however, that appellants in the instant case have offered their amendments before the beginning of trial. Therefore, this case presents an even stronger argument for allowing amendments than the line of federal cases we choose to follow. When amendments are offered before trial, the argument that the opposing party is prejudiced by unfair surprise vanishes. There is still time for discovery and preparation, and a continance to allow opponents to counter either new claims for relief or theories of defense is less time-consuming before trial begins than during its progress or by post-trial procedure.
Our analysis is not intended to establish absolute guidelines for allowing amendments following the entry of pre-trial orders. It is intended, rather, to expouse the philosophy of the Alabama rules in this area and explain how that philosophy dictates certain results. Under Alabama practice, the entry of a pre-trial order does not supersede the Rule 15 requirement that `'amendments shall be freely allowed when justice so requires." To comply with Rule 15, the trial judge must allow a proposed amendment if it is necessary for a full determination of the merits of the case and it does not unduly prejudice the opposing party or unduly delay the trial.[2]
In the context of the instant case, the merits cannot be fully litigated without allowing the amendment because the amendment introduced additional claims for relief. The only remaining issue is whether the amendment results in undue prejudice or delay.
Primarily, the petitioners were trying to accomplish three things by amendments. First, they wanted to add an allegation of malicious conduct, thereby seeking punitive damages. Second, they wanted to include a claim for additional damages to Aubrey Huskey's medical practice. Third, they wanted to introduce a new cause of action by linking the respondents' trespass to a heart attack suffered by Blanche Huskey.
The first portion of the amendment would require no additional preparation on the part of the respondents. If they were prepared to defend a charge of simple trespass for compensatory damages, they should be prepared to defend the punitive allegation which will be more difficult for the petitioners to prove.
On the second addition, the respondents were already preparing to defend the claim of damage to Aubrey Huskey's medical practice because they had requested and received all his tax returns for the years in question.
The final portion of the proposed amendment adding the cause of action for the heart attack presents different considerations because it requires medical testimony and expert witnesses. To meet this claim, the respondents may justifiably request a continuance. As was previously discussed, a continuance before the beginning of trial does not, in the usual case, unduly delay the litigation, and should be granted whenever it is necessary to achieve a just determination on the merits.
In view of our holding that the trial Court erred in granting respondents' motion to strike petitioners' amended complaint, we feel constrained to conclude on a note of caution. Nothing in this opinion is to be construed as impinging on the exercise of the trial court's sound discretion in *650 disallowing post pre-trial amendments in instances where the judicial process would be unduly delayed or impeded, or where prejudice to the substantial rights of the parties would result.
Writ granted.
HEFLIN, C.J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] This is not to be understood as favoring a policy of treating the pre-trial conference and order as relatively unimportant. To be sure, Rule 16 can be given a meaningful field of operation only in the context of adequate preparation commensurate with the highest standards of professionalism. We only emphasize that the pre-trial conference is not a trial on the merits, and it should not result in an order so rigid as to preclude a full adjudication of each case.
[2] This standard results from a combination of our explication of Rules 15 and 16 and the test set out in the Stead case, which we believe, of necessity, merged the considerations for the propriety of mandamus vis-a-vis appeal with the guidelines for allowing amendment to pleadings. | November 6, 1975 |
05c51603-5f84-48ac-bb38-ceca21fabe65 | Cronnon v. State | 320 So. 2d 709 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 709 (1975)
In re Johnny Lee CRONNON
v.
STATE.
Ex parte Johnny Lee Cronnon.
SC 1398.
Supreme Court of Alabama.
September 25, 1975.
Myron k. Allenstein, Gadsden, for petitioner.
No appearance for respondent.
MADDOX, Justice.
Petition of Johny Lee Cronnon for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cronnon v. State, 56 Ala.App.192, 320 So. 2d 697.
Writ denied.
HEFLIN, C.J., and MERRILL, JONES and SHORES, JJ., concur. | September 25, 1975 |
328ad45b-3257-4479-8161-e3b10a622edf | Jones v. Moore | 322 So. 2d 682 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 682 (1975)
Carolyn Frances JONES
v.
Mary Louise MOORE.
SC 1147.
Supreme Court of Alabama.
November 20, 1975.
*683 Walter W. Furner, Bessemer, for appellant.
Thomas L. Foster, Birmingham, for appellee.
SHORES, Justice.
The litigants in this case are mother and daughter. Mrs. Moore was married to Mr. Moore, Mrs. Jones' father, for fifty-two years prior to his death in 1974. During the course of their marriage they acquired a home in Birmingham, for which they paid approximately $8,200. Mrs. Moore testified, and it was not contradicted, that she paid the earnest money on the house and that she and her husband together paid the balance. Title to the property was held in their joint names with right of survivorship.
*684 Having enjoyed good health all of his life, Mr. Moore was stricken with cancer sometime in 1973, and spent some weeks in the hospital in the fall of 1973. He returned home in October and remained there until he was readmitted to the hospital on January 16, 1974, at which time his condition was diagnosed as terminal. Mr. Moore never returned home and remained hospitalized until his death on March 6, 1974.
On February 6, 1974, from his hospital bed, Mr. Moore executed a deed conveying his one-half interest in the home to his and Mrs. Moore's daughter. It is this deed which is the subject of the controversy between these parties.
Mrs. Moore filed suit seeking to have title to the subject property quieted in her and asked the court to set aside the deed executed by her husband on the ground that Mr. Moore was, at the time of the execution of the deed, mentally incompetent to execute a valid conveyance of the land.
The trial court correctly held that Nunn v. Keith, 289 Ala. 518, 268 So. 2d 792 (1972), had settled the question of whether one joint tenant in a survivorship deed is capable of conveying his interest in jointly held property absent the consent of the cotenant, and observed that the only issue remaining for its determination was the mental competency of Mr. Moore at the time of the execution of the deed.
The trial court found that Mr. Moore was incompetent on February 6, 1974, when he purported to convey his interest in the property to his daughter.
From this judgment, the daughter appeals.
It is her argument that although the evidence was taken ore tenus, that there was no evidence to support the trial court's finding that Mr. Moore was incompetent on that date.
Appellant states in brief:
At least five witnesses, other than the medical doctors, whose testimony was received by deposition, testified that following Mr. Moore's illness they had observed him on numerous occasions, and at times found him in a deteriorated state, mentally; that he could not carry on rational conversations; sometimes drifted off of one subject on to another; would forget whether he had had meals; was incapable of managing his affairs; incapable of understanding what was going on, etc. Admittedly, the evidence is conflicting, and we see no purpose to be served in setting all of it out. However, to illustrate that appellant is wrong in her assertion that there was no evidence to support the trial court's finding, we do set out the following, which appears in the record:
Mr. Moore's physicians' notes, made at times they examined him during his stay in the hospital, show the following:
". . .
". . .
Dr. Bancroft, on deposition, stated that in addition to cancer of the lung, Mr. Moore had suffered a stroke at the time he was readmitted to the hospital in January, 1974, and in addition:
". . .
". . .
". . .
Dr. Bancroft explained that it was his opinion that Mr. Moore was suffering from two disorders of the central nervous system, arteriosclerosis and tumor of the brain, both of which he said were incurable and progressive, and that both conditions affect a person's reasoning ability.
Against this evidence was the testimony of the appellant, who testified that her father was capable of knowing what he was doing on the day he signed the deed. It was her testimony that her father had conveyed his interest in the home of her parents to her so that his wife would have a home.
It is her argument that the testimony taken ore tenus was insufficient to support the trial court's conclusion, and that the central issue of Mr. Moore's competency must be decided on the basis of the medical evidence received by deposition.
We disagree with the appellant.
Appellant appears to argue that no lay witnesses testified with absolute certainty that Mr. Moore was incompetent on *686 the exact day that the deed was executed. We have carefully read the entire record. All of the witnesses who testified had known Mr. Moore for a number of years, and had seen him frequently after he was hospitalized with his final illness. We think they were competent to give an opinion, based upon their observation of him, as to Mr. Moore's mental capacity at the time of the execution of the deed in question. In Blackwell v. Sewall, 280 Ala. 359, 365, 194 So. 2d 519, 525 (1967), we said:
The thrust of appellant's argument is that since no witness who testified said with absolute certainty that they saw Mr. Moore on the exact date that the deed was signed, that none of them was in a position to testify with regard to his mental condition on that day. Although many of them testified that they had visited with him periodically during the period in which he was hospitalized, she asserts that only she and a practical nurse, who was in attendance at the time the deed was signed, were in a position to give an opinion as to his condition on that day. Under our cases, we do not think it is necessary to sustain the trial court's finding that such precision is necessary. As indicated, the medical evidence was that Mr. Moore was mentally impaired and had been since he suffered a stroke in early January. It was Dr. Bancroft's opinion that the condition was progressive and permanent.
The rule has been repeatedly stated by this court, and appears as follows in Hall v. Britton, 216 Ala. 265, 267, 113 So. 238, 239 (1927):
which was quoted with approval in Casey v. Krump, 260 Ala. 280, 69 So. 2d 864 (1954), which noted that the rule had been followed also in Spence v. Spence, 239 Ala. 480, 195 So. 717 (1940).
The next point made by appellant is that the ore tenus rule does not attach since, she contends, the lay witnesses were not qualified to state an opinion, and the only remaining evidence of Mr. Moore's incapacity was by way of depositions of the physicians. Therefore, she says, we should review the medical evidence without any presumption in favor of the conclusion reached by the trial court. Again, we disagree.
First, as indicated, we think the trial court correctly considered the testimony offered ore tenus by the lay witnesses. Secondly, the rule has long been established that where the trial court's determination is based on evidence, part of which was offered orally, and part by deposition, its finding has the effect of a jury verdict and will not be disturbed on appeal unless plainly and palpably erroneous and contrary to the great weight of the evidence. In Blackwell v. Sewall, supra, which also involved the validity of a deed which was cancelled because of the alleged mental imcompetency of the grantor, the rule was stated as follows:
The foregoing disposes of appellant's assignments of error numbered one through eleven, all of which were argued together.
She next claims error in the trial court's sustaining an objection to a question asked Mrs. Moore, on cross-examination, which was: "Q Have you been convicted of crime involving moral turpitude?"
There is no error to reverse here. Assuming, without agreeing, that the question involved a subject which was proper cross-examination, the latitude to be allowed in cross-examination of witnesses is within the discretion of the trial court, and unless that discretion is grossly abused, it will not be reviewed here, particularly in respect to collateral and irrelevant matter. Powell v. Powell, 285 Ala. 230, 231 So. 2d 103 (1970). Besides, even if such were proper cross-examination, the question as put is improper for the reason that it was too general and should have been disallowed for that reason alone. Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927).
The last argument advanced by the appellant is that the trial court erred in refusing to allow testimony of Mr. William Thomason, attorney for the appellant, who volunteered to testify. As stated by the appellant, the only issue to be determined in this case was the mental capacity of Mr. Moore at the time of the execution of the deed in question.
In his voluntary statement, before asking to be put on the stand, Mr. Thomason said:
It is obvious, from Mr. Thomason's voluntary statement, that he had no occasion to observe Mr. Moore, nor to form an opinion as to his mental capacity, other than a voice on the telephone, which was identified to him as Mr. Moore's. We note that, while appellant argues that the trial court erred in relying on testimony of other lay witnesses who did observe Mr. Moore over a period of time, she now complains that her attorney was not permitted to express his opinion after his own admission that he had never seen Mr. Moore at all.
There being no further assignments of error, the judgment appealed from is affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur. | November 20, 1975 |
9bf5ea99-5f41-4f38-8507-972efb649587 | Foshee v. GENERAL TELEPHONE COMPANY OF SOUTHEAST | 322 So. 2d 715 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 715 (1975)
Crum FOSHEE
v.
GENERAL TELEPHONE COMPANY OF the SOUTHEAST, a corporation, et al.
SC 1316.
Supreme Court of Alabama.
November 20, 1975.
*716 Tipler, Fuller & Barnes, Andalusia, for appellant.
Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Albrittons & Rankin, Andalusia, Lee & McInish, Dothan, Ward W. Wueste, Jr., Durham, N.C., for appellees.
EMBRY, Justice.
Appeal from judgment dismissing a class action against General Telephone Company seeking recovery of alleged overcharges for telephone service. Appellants are telephone service subscribers of General Telephone, appellee here. The subscriber class is represented by Crum Foshee. We affirm.
The sole issue for decision is whether the subscribers could prove any set of facts in support of their claim which would entitle them to relief under any cognizable theory of law. ARCP 12(b)(6).
On 30 October 1972 the Alabama Public Service Commission granted General Telephone a rate increase. The State of Alabama, the Governor and sixteen municipalities appealed from the order of the Commission. On 1 February 1974 the Montgomery County Circuit Court ruled that the APSC established rate was excessive by $208,924 because of errors made by the APSC in computing General Telephone's rate base. That court remanded the case to the APSC to enter an order establishing proper rates. That court also ruled it could not order a refund to subscribers for the excessive charges paid while the original APSC order was in effect. This court affirmed, State v. Alabama Public Service Commission, Ala., 307 So. 2d 521 (1975), holding the APSC established rate was excessive but that no refund was due because no supersedeas bond was made and no statutory authority existed that would permit the court to order a refund.
Sebsequently the subscribers brought this class action seeking to recover charges paid by them during the time the original APSC order was in effect in excess of the rates fixed by APSC on remand to it. The complaint alleged and plaintiffs argue here that cognizable theories of unjust enrichment, money had and received, or debt owed empower the courts to grant them relief on their claim. The trial court granted General Telephone's motion to dismiss.
We first note this is not a rate case. Nor is it a case seeking to recover monies paid for charges in excess of rates established by the APSC. This case is one in *717 which recovery is sought of a portion of charges paid under a rate schedule established by lawful order of the APSC.
The essence of the theories of unjust enrichment or money had and received is that facts can be proved which show that defendant holds money which in equity and good conscience belongs to plaintiff or was improperly paid to the defendant because of mistake or fraud. Wash v. Hunt, 281 Ala. 368, 202 So. 2d 730 (1967); Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So. 2d 314 (1953). The essence of the cause of action for debt is that facts can be proved which shows the defendant is obligated to pay the complainant a liquidated sum of money. Drennen Motor Car Co. v. Evans, 192 Ala. 150, 68 So. 303 (1915). Thus, in order to prevail under these theories of law, a plaintiff must show that the defendant is legally or equitably obligated to pay money to plaintiff.
Code of Ala., Tit. 48, §§ 104, 114, establishes that there can be but one lawful rate. Moreover under these statutes a regulated public utility can charge only the rate established by the APSC. Until the APSC on remand modified their rate schedule pursuant to order of the circuit court, General Telephone could charge and collect no other rate except that established by the APSC in its order of 30 October 1972. Hence it is clear that General Telephone is under no legal or equitable obligation to refund any money to their subscribers since it did only what it was required to do by statute.
It is clear that the subscribers could not prove any set of facts which would entitle them to relief on a claim for a refund of monies paid pursuant to a rate schedule established by a lawful order of the APSC. There is no common law or equitable remedy for the recovery of charges prescribed by an order of the APSC. State v. Alabama Public Service Commission, supra; Adams v. Central of Georgia Railway, 198 Ala. 433, 73 So. 650 (1916); Code of Ala., Tit. 48, § 124-25. The motion to dismiss was properly granted. ARCP 12(b)(6).
Affirmed.
BLOODWORTH, FAULKNER, JONES and ALMON, JJ., concur. | November 20, 1975 |
6609b900-ec5a-45c6-b6e8-6cf9acd5c00e | Cooper v. Adams | 322 So. 2d 706 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 706 (1975)
James L. COOPER
v.
Joe H. ADAMS.
SC 1309.
Supreme Court of Alabama.
November 6, 1975.
H. Evins Hamm, Huntsville, for appellant.
David E. Worley, Huntsville, for appellee.
MERRILL, Justice.
This appeal is from a summary judgment in favor of plaintiff in a statutory quiet title action, Tit. 7, § 1109, Code 1940. The judgment must be reversed.
Plaintiff, Joe H. Adams, initially filed an action in the nature of ejectment against the then defendant, Jack Cantrell. His complaint stated that he "sues to recover possession of the following tract of land" (describing it as containing approximately 0.87 of an acre). Cantrell demanded an abstract pursuant to Tit. 7, § 940, and filed a demurrer to the complaint on May 3, 1973. (This was prior to the effective date of ARCP, July 3, 1973.) On May 28, 1974, Cantrell informed the court that he had conveyed the property to James L. Cooper and moved that Cooper *707 be substituted as defendant. The motion was granted.
On June 10, 1974, Cooper moved for a summary judgment and Adams countered by dismissing his ejectment count and he amended by adding the statutory bill to quiet title. An order granting the motion was rendered September 26, 1974.
The next action shown by the record was a second motion by defendant Cooper for summary judgment. Cooper attached an affidavit of his father, James K. Cooper. The father stated that he purchased the property for his son from one A. E. Speed in 1960, that his son went into possession and rented a tin building, which Speed had built on the property, to various tenants until his son sold the property to Jack Cantrell in 1971; that Cantrell went into possession until he sold the property back to Cooper's son on August 10, 1973; that during Cantrell's ownership, Cantrell "improved the tin building and made it into a 3 room house and garage and made it his residence. After buying said property back from Jack Cantrell, I immediately went back into possession of said property on behalf of my son and I have been in continuous possession of same since then to the present time, renting same to various tenants on behalf of my son."
This was all and the only testimony in the record as to possession.
The next action shown in the record is the judgment of the trial court. Even though defendant Cooper made the motion for summary judgment, the judgment was entered for the plaintiff Adams. It is dated March 25,1975 and reads:
Under a bill to quiet title pursuant to the statute, Tit. 7, § 1109, Code 1940, "the complainant must have the quiet and peaceable possession, actual or constructive, as distinguished from a contested, scrambling or disputed possession." Motley v. Crumpton, 265 Ala. 565, 93 So. 2d 413; Ford v. Washington, 288 Ala. 194, 259 So. 2d 226. The last case quotes from our opinion on rehearing in Chestang v. Tensaw Land & Timber Co., 273 Ala. 8, 16, 134 So. 2d 159, 166, as follows:
Here, the complaint alleged the jurisdictional allegation of peaceable possession in paragraph 3 of the complaint, but he offered no proof and made no move from the date of the filing of defendant's affidavit on Jan. 23, 1975 to the entering of the decree on March 25, 1975 to dispute the proof of peaceable possession by defendant.
A paragraph in Palmer v. Rucker, 289 Ala. 496, 268 So. 2d 773, is applicable here:
*708 Since the plaintiff did not meet the burden of proving his allegations, there was no proof to support the judgment of the court and it must be reversed.
In brief on appeal, counsel for Adams includes an abstract as an exhibit, but the abstract is not in the record before us; and shortly before oral argument, an affidavit of the trial court was filed and that this exhibit "was both read and considered by me in the decision of this case."
These matters, being dehors the record, cannot be considered. The case of Coleman v. Estes, 281 Ala. 234, 201 So. 2d 391, states two applicable rules:
(1) Argument in brief reciting matters not disclosed by the record cannot be considered on appeal.
(2) The record cannot be impeached on appeal by statements in brief, by affidavits, or by other evidence not appearing in the record.
This court is remitted to a consideration of the record alone and absolute truth must be imputed to it. If it is incomplete or incorrect, amendment or correction must be sought by appropriate proceedings rather than by impeachment on the hearing in the appellate court. The record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record. Evans v. Avery, 272 Ala. 230, 130 So. 2d 373; Blanton v. Blanton, 276 Ala. 681, 166 So. 2d 409.
It is only fair to state that counsel on appeal was different from counsel in the trial court.
Reversed and remanded.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | November 6, 1975 |
30b19416-f54e-465b-af00-4f2f1635073d | Board of Water and Sewer Commissioners of City of Mobile v. McDonald | 322 So. 2d 722 | N/A | Alabama | Alabama Supreme Court | 322 So. 2d 722 (1975)
In re BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a public corporation
v.
John E. McDONALD, Jr., et al.
Ex parte Board of Water and Sewer Commissioners of the City of Mobile, a public corporation.
SC 1468.
Supreme Court of Alabama.
October 30, 1975.
Joe H. Little, Jr., Mobile, for petitioner.
No appearance for respondent.
ALMON, Justice.
Petition of Board of Water and Sewer Commissioners of the City of Mobile, a Public Corporation for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Board of Water and Sewer Commissioners of The City of Mobile v. McDonald, 56 Ala.App. 426, 322 So. 2d 717.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. | October 30, 1975 |
6f5ef7ab-1bd8-4635-9f0f-d8fb082c1d17 | Martin v. State | 318 So. 2d 775 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 775 (1975)
In re Billy Rayford MARTIN
v.
STATE.
Ex parte Billy Rayford Martin.
SC 1442.
Supreme Court of Alabama.
September 18, 1975.
Robert S. Thomas, Scottsboro, for petitioner.
No appearance for the State.
BLOODWORTH, Justice.
Petition of Billy Rayford Martin for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Martin v. State, 56 Ala.App. 33, 318 So. 2d 772.
Writ denied.
HEFLIN, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | September 18, 1975 |
21ea0422-a4b3-4957-afdc-0d99b80cd692 | Erwin v. Sanders | 320 So. 2d 662 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 662 (1975)
Janice ERWIN, Administratrix of the Estate of Josie Mae Claypool
v.
Michael L. SANDERS et al.
SC 1072.
Supreme Court of Alabama.
October 2, 1975.
Traylor, Baker & McGee, Fort Payne, for appellant.
White E. Gibson, Jr., Birmingham, for appellees.
MADDOX, Justice.
The jury returned a verdict for the defendants in a wrongful death action, which arose out of a collision between a car and a tractor-trailer. The speed of the car in *663 which the deceased was riding as a passenger was a critical fact issue in the case.
Plaintiff, on appeal, substantially argues four assignments of error. Plaintiff says:
(1) The testimony of defendant's expert, Andrew Payne, was admitted erroneously because Payne's name had not been listed in the original or a supplemental response of the defendants to one of plaintiff's interrogatories which asked for the names of all experts who would testify;
(2) Payne, the expert, was allowed to give his opinion, based on facts which were not in evidence;
(4) An accident report should have been admitted for impeachment of the testimony of the expert.
First, we consider appellant's argument that Payne should not have been permitted to testify since the defendants did not supplement their response to an interrogatory which sought the identity of each person expected to testify as an expert. Rule 26(e)(1), (2), ARCP. That rule provides:
Plaintiff had asked, by interrogatory, what expert witnesses defendants would use. Defendants served an answer on March 4, 1974, naming one Henry G. Robinson. Plaintiff took Robinson's deposition. The case was set for trial on Monday, March 18, 1974. On the Thursday prior to trial, while taking a deposition of a trial witness in Fort Payne, plaintiff's counsel told opposing counsel that he was "considering getting an expert from Atlanta to testify." On Friday night, March 15, defendant's counsel first asked witness Payne, of Birmingham, to testify as an expert for the defense. Payne agreed.
At the call of the docket at 9:00 a.m. on Monday, March 18, defense counsel told counsel for plaintiff that Payne would testify. The case was assigned to Judge Windham on Tuesday at 10:30 a.m.
Plaintiff first objected to the use of witness Payne two and one-half days after the start of the trial, on grounds that Payne's name was not revealed to plaintiff's counsel in interrogatories, and that counsel had not had sufficient time to examine Payne to prepare for cross-examination.
Plaintiff claims "surprise" and contends that the exclusion of Payne's testimony would not be too harsh a remedy in this case.
The defendants, in their argument, point out this delay on the part of the plaintiff in objecting to the use of Payne as a witness. *664 They also say that Payne lived in Birmingham and had been in the city from Monday, the 18th, until Thursday, the 21st, when he was called. "Clearly, in the circumstances, plaintiff's attorneys had several feasible courses which they could have followed had they wished," defendants argue. They also say that the plaintiff could have taken Payne's discovery deposition on Monday at any time, announcing their readiness for trial at the call of the docket subject to that discovery. They say:
In short, defendants say that under the facts of this case, the trial judge did not abuse his discretion in permitting Payne to testify. We agree. It appears there is ample evidence to show that the defendants, faced with the possibility that the plaintiff would have a "live" expert at trial, would also seek, as a matter of trial strategy, to obtain expert testimony. Cf. Martella v. Great Atlantic & Pacific Tea Co. et al., 418 F.2d 1246 (3rd Cir. 1969); Texas & Pacific Ry. v. Buckles (5th Cir.) 232 F.2d 257, Cert. den., 351 U.S. 984, 76 S. Ct. 1052, 100 L. Ed. 1498 (1956); Jackson v. H&S Oil Co., Inc., 211 S.E.2d 223 (S.C.1975).
We find no error nor abuse of discretion in permitting the expert witness to testify.
Appellant's second argument is that "the trial court erred in allowing an opinion to be drawn from the accident report when it was not put in evidence." We understand appellant's argument to be that defendant's expert based his testimony on facts which were contained in an accident report, and the report was not in evidence. We have read the hypothetical question and we believe the question did not have the expert assume a state of facts which were not in evidence by testimony of witnesses or by exhibits. We find no error here.
Appellant also claims that the expert's opinion as to speed was based, in part, on testimony about the length of skid marks after impact. We do not understand the question to the expert was so hypothesized. As we understand the hypothetical question in the instant case, only the length of the skid marks leading up to the point of impact, not any beyond that point, were incorporated in the question put to Payne. It was hypothesized that the car in which the deceased was riding did travel ten to twelve feet beyond the far side of the trailer after impact, but as we understand the hypothecated facts, skid marks after impact were not mentioned. We find no error here.
The final point raised is that the accident report was admissible in connection with the cross-examination of the expert to impeach the testimony of the expert. We cannot agree. While a searching and sifting cross-examination is permitted, we determine that the trial court did not commit error in refusing to allow the admission of the accident report.
*665 In the recent case of Nettles v. Bishop, 289 Ala. 100, 266 So. 2d 260 (1972), this Court considered a legal question very similar to the one presented here. In Nettles, the plaintiff had sought damages for the death of his minor son, killed when his automobile collided with a tractor-trailer. There, this Court held:
We find no error in the trial court's refusal to admit the accident report into evidence.
The judgment of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL, JONES and SHORES, JJ., concur. | October 2, 1975 |
4201d3dd-e2df-4b80-a494-ca929a628667 | Latham v. State | 320 So. 2d 760 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 760 (1975)
In re Ruby Lee LATHAM
v.
STATE of Alabama (two cases).
Ex parte Ruby Lee Latham.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1228, SC 1236.
Supreme Court of Alabama.
September 18, 1975.
Rehearings Denied October 2, 1975.
*761 William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
James M. Fullan, Jr., Birmingham, in opposition to the State's petition for certiorari and for the defendant, in support of her petition for certiorari.
MADDOX, Justice.
Both the State and the defendant sought review, by certiorari, of the decision of the Court of Criminal Appeals, 56 Ala.App. 234, 320 So. 2d 747. We granted both petitions. The State contends that the court erred in deciding that it did not prove larceny. The defendant, on the other hand, contends that the court's decision conflicts with O'Brien v. State, 238 Ala. 189, 191 So. 391 (1939), in that Mrs. Latham was charged with obtaining $489.90 by false pretenses and the proof showed that the money obtained by the defendant was a state warrant. We reject not only the argument by the State but also that of the defendant and affirm the Court of Criminal Appeals.
As to the State's contention that the charge of larceny was proved by showing that the defendant got the money by a state warrant, we affirm without further opinion.
As to defendant's contention that the charge of obtaining $489.90 by false pretenses was not proved by showing that the defendant got the money from negotiating a state warrant, we also affirm.
The Court of Criminal Appeals followed Simmons v. State, 242 Ala. 105, 4 So. 2d 905 (1941), and held that there was no variance between the allegations and proof on the false pretense charge. We agree. In Simmons, this Court stated:
"The opinion of the Court of Appeals discloses that defendant (petitioner here), obtained from the bank, by means of false pretenses, a deposit slip for $500 on October 3rd and checked out the said $500 the next day.
The defendant here, as did the defendant in Simmons, lays stress upon O'Brien v. State, 238 Ala. 189, 191 So. 391 (1939). While O'Brien has not been overturned, it has been materially weakened as an authoritative case. As a matter of fact, Chief Justice Gardner, in Simmons, notes that he and Mr. Justice Thomas had acquiesced in the O'Brien case because they thought the matter had been laid to rest by previous decisions. It is apparent from a consideration of what was said in Simmons, that at least five members of this Court, as then constituted, thought O'Brien was not "in line with the weight of authority" and was not "in accord with plain common sense." *763 Even though this case involves a warrant and not a check, as was the case in O'Brien, we think that would be a distinction without a difference. Consequently, we refuse to follow O'Brien. The better rule is obviously stated in Simmons. As was said in Simmons, it would be carrying technicality to a most regrettable extreme to hold that the proof of the mere instrumentality of obtaining the money constitutes a variance with the charge of obtaining the money itself, when the same evidence discloses the fact that the money was so obtained.
Affirmed.
HEFLIN, C.J., and MERRILL, BLOODWORTH, FAULKNER, JONES and SHORES, JJ., concur.
ALMON and EMBRY, JJ., not sitting. | September 18, 1975 |
6d697252-2534-43f5-af20-6c85041c33e2 | Funches v. State | 318 So. 2d 768 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 768 (1975)
In re Mamie Delores FUNCHES
v.
STATE.
Ex parte Mamie Delores Funches.
SC 1405.
Supreme Court of Alabama.
September 18, 1975.
David L. Barnett, Mobile, for petitioner.
No appearance for the State.
MADDOX, Justice.
Petition of Mamie Delores Funches for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Funches v. State, 56 Ala.App. 22, 318 So. 2d 762.
Writ denied.
All the Justices concur. | September 18, 1975 |
dbf6cd39-1cd1-425c-9cb7-153c7bfe094a | Walker v. State | 275 So. 2d 732 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 732 (1973)
In re William A. WALKER
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 310.
Supreme Court of Alabama.
April 5, 1973.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
No brief for respondent.
McCALL, Justice.
Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Walker v. State, 49 Ala.App. 741, 275 So. 2d 724.
Writ denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. | April 5, 1973 |
9675aa5f-4688-4502-9028-b91774e46680 | Ray Hughes Chevrolet, Inc. v. Gordon | 320 So. 2d 652 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 652 (1975)
RAY HUGHES CHEVROLET, INC., a corp.
v.
Sharon K. GORDON.
SC 1107.
Supreme Court of Alabama.
October 3, 1975.
*653 Cassady & Fuller, Enterprise, for appellant.
Kenneth R. Cain, Ozark, for appellee.
SHORES, Justice.
Sharon K. Gordon, appellee, brought suit against Ray Hughes Chevrolet, Inc., appellant, for damages resulting from the conversion of appellee's automobile.
Sharon K. Gordon sued Ray Hughes Chevrolet, Inc., claiming $15,000 damages for the conversion of her 1972 Vega automobile. The complaint, as amended, claimed punitive damages in that amount. Defendant, by answer, denied the allegations of the complaint, asserted that it held the automobile under a lawful claim and filed a counterclaim for $216.62, claimed to be due by the plaintiff for work and labor performed by the defendant on her automobile. The jury returned a verdict in favor of the plaintiff in the amount of $14,783.38. The appeal is from a judgment entered in that amount.
The record indicates that Miss Gordon bought the automobile from Hughes in June of 1972 for a total price of $3,174.27. After the automobile had been driven some 11,000 miles, she experienced transmission trouble with the car and took it to Hughes for repair. There was some conversation at this time about whether the automobile was still under warranty, but Miss Gordon was informed that if it was not, the cost of repairs would be no more than $125.00.
When she returned for the automobile, the bill for repairs which was presented to her was $216.62. Miss Gordon testified that she told employees at Hughes that she was surprised that the bill was so much, but arrangements were worked out whereby she was given 30 days in which to pay this amount.
Six days after this transaction, Miss Gordon again experienced trouble with the car and returned to Hughes Chevrolet. At this time, representatives of Hughes drove the car and told her that the trouble she had experienced with the car could not be fixed, that the trouble was due to the fact that the car was a four cylinder car and the trouble was just not repairable.
It was Miss Gordon's testimony that she then prepared to leave and was informed by one Mr. Medley, the service manager, "`I am sorry, Miss Gordon, we can't let you leave.'" It was her testimony that the service manager said: "`You questioned our honesty and now we are questioning yours, and I have been given instructions to not let you leave until you pay your bill.'"
It was Mr. Medley's testimony that he had been instructed by Mr. Hughes, president of the defendant company, not to let Miss Gordon have the car until the bill was paid. Mr. Hughes did not deny that those were his instructions. On the contrary, he testified that ". . . I told them not to release that car without being paid for the bill."
In arguing for reversal, the appellant insists that the trial court erred in denying its motion for directed verdict, and further erred in denying its motion for new trial. The thrust of appellant's argument is that there is no evidence in the record to justify the jury in awarding to the plaintiff punitive damages. That contention is based upon the argument that punitive damages can be awarded only where there is evidence that the conversion was accompanied by insult, rudeness, malice or oppression, *654 and appellant claims that the record is devoid of any evidence to indicate that any employee of Ray Hughes Chevrolet was rude or threatening in his dealings with Miss Gordon.
It is true that this court has frequently said that the award of punitive damages, while discretionary with the jury, is permissible where the evidence shows legal malice, willfulness, insult, or other aggravating circumstances. Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So. 2d 371 (1968); Roan v. Smith, 272 Ala. 538, 133 So. 2d 224 (1961).
However, it has never been stated that one must show, before a jury issue is made out on the question of punitive damages, that the intentional wrongful act must be accompanied by rudeness before punitive damages are allowable.
The Court of Civil Appeals was challenged on rehearing in Parker v. Sutton, 47 Ala.App. 352, 357, 254 So. 2d 425, (1971), for the following statement contained therein:
In its opinion on rehearing, that court, speaking through Judge Wright, said:
We have found no better statement of the law than the following, which we now adopt from Judge Wright's opinion:
This is not to say that the conduct of the defendant accompanying a wrongful act has no evidentiary value. It is entirely appropriate for the jury in its assessment of punitive damages, if any, to consider any aggravating circumstances such as verbal insult, rudeness, etc., or the lack of such conduct. Indeed, evidence of this lack of personal abuse was properly admitted in the instant case. But the absence of any such aggravating circumstances does not legally invalidate the injured party's claim for punitive damages based on intentional misconduct. To hold otherwise would contravene the long and well-established rule allowing punitive damages for wantonness when the wrongful act causing injury may be as impersonal as the intentional wrongful operation of an automobile.
In the instant case, there was evidence from which the jury could have concluded that the plaintiff's automobile was converted by the defendant in known violation of her rights and in violation of the law. In fact, the evidence is not contradicted that the defendant withheld her automobile from her because she had not paid the bill, which was not then due Of *655 course, it had no right to hold her automobile in payment of the bill, even had it then been due, having previously released it to her after the debt was incurred. With this latter proposition the appellant has not argument.
There is evidence in the record before us which justified the jury in believing that the plaintiff's automobile was converted by the defendant, willfully and in known violation of her rights, or in reckless disregard thereof, authorizing in its discretion the award of punitive damages.
That being so, we find no error in the trial court's refusal to grant a new trial on this ground.
Finding no error to reverse, the judgment appealed from is affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL, BLOODWORTH, MADDOX and JONES, JJ., concur.
FAULKNER, ALMON and EMBRY, JJ., concur in the result. | October 3, 1975 |
1c35359b-cb9f-41c8-bf8d-d940b5b614d7 | Hendrix v. Hendrix | 320 So. 2d 687 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 687 (1975)
In re Felton HENDRIX
v.
Dorothy Dale HENDRIX.
Ex parte Felton Hendrix.
SC 1449.
Supreme Court of Alabama.
September 25, 1975.
Robert Straub, Decatur, for petitioner.
No appearance for respondent.
SHORES, Justice.
Petition of Felton Hendrix for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Hendrix v. Hendrix, 56 Ala. App. 178, 320 So. 2d 684.
Writ denied.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur. | September 25, 1975 |
b207d107-0bce-4641-ab31-fc41a0c07dc4 | Hubbard v. Hubbard | 317 So. 2d 492 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 492 (1975)
In re Bonnie Joan H. HUBBARD
v.
Earnie HUBBARD, Jr. Ex parte Earnie HUBBARD, Jr.
SC 1352.
Supreme Court of Alabama.
August 21, 1975.
Wayne L. Williams, of Zeanah, Donald, Lee & Williams, Tuscaloosa, for petitioner.
None for respondent.
*493 EMBRY, Justice.
Petition of Earnie Hubbard, Jr., for writ of certiorari to review, revise the opinion and reverse the holding of the Court of Civil Appeals in Hubbard v. Hubbard, 55 Ala.App. 521, 317 So. 2d 489 (1975).
We deny the writ without expression relative to the merits of the controversy as there will be a new trial below on remand by the Court of Civil Appeals. By this action we are not to be understood as lending approval to each statement found in the opinion of that appellate court. It reached the correct result.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | August 21, 1975 |
9172fad3-c924-45fe-8668-a50a44bf32c1 | HUBBARD BROS., CONST. CO., INC. v. CF Halstead Cont., Inc. | 321 So. 2d 169 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 169 (1975)
HUBBARD BROS. CONSTRUCTION COMPANY, INC., a corporation
v.
C. F. HALSTEAD CONTRACTOR, INC., a corporation.
SC 908.
Supreme Court of Alabama.
September 25, 1975.
Rehearing Denied November 6, 1975.
*170 Beavers, May & DeBuys, Birmingham, for appellant.
Jack Crenshaw, Montgomery, for appellee.
BLOODWORTH, Justice.
The sole question presented by this appeal is whether the trial judge erred in granting defendant's motion for new trial. The motion contains the ground that the verdict is contrary to the great preponderance of the evidence. In ruling, the judge gave no reason for his decision. The evidence was in conflict. We say that he did not err and affirm.
The facts upon which this appeal rests are stated in the dissenting opinion of Mr. Justice Jones and need not be repeated here.
From the second Monday in May, 1820, when the Supreme Court of Alabama first met at the capitol in Cahawba,[1] to this present day perhaps no principles of Alabama law have been more uniformly settled or more frequently cited than those pronounced in Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891).
In that leading case, Justice Clopton wrote for the Court, inter alia:
The reason for the rule is clearly stated.
Following the decision in Cobb v. Malone, this Court has laid down the rules respecting appellate review of rulings on motions for new trial. These rules have been followed in countless hundreds of our cases. Every present member of this Court has concurred in one or more. We would take this opportunity to reaffirm Cobb v. *171 Malone and its progeny and to summarize Xthose rules applicable to this present case.
1. Granting or denying a new trial motion is a matter resting largely in the discretion of the trial judge and exercising it carries a presumption of correctness. Johnson v. Hodge, 291 Ala. 142, 279 So. 2d 123 (1973).
2. When the trial court grants a new trial motion, without specifying the grounds therefor, the ruling must be sustained on appeal if any good ground is presented by the motion. Johnson v. Hodge, supra.
3. When the trial court grants a new trial, without specifying the grounds therefor, and one of the grounds is that the verdict is contrary to the evidence, the appellate court presumes that it was because the trial court concluded the verdict was contrary to the great preponderance of the evidence or the verdict was unjust in the light of the evidence. Jones v. Strange, 289 Ala. 76, 265 So. 2d 860 (1972); Kennedy v. General Transport Company, Inc., 293 Ala. 455, 304 So. 2d 896 (1975).
4. In such circumstances as 3, the appellate court will not reverse the order granting a new trial unless it appears that the great weight of the evidence plainly and palpably shows the trial court was in error. Jones v. Strange, supra.
5. In such circumstances as 3, and where the evidence is in conflict and when, upon a review thereof, the appellate court cannot say that the great weight of the evidence plainly and palpably supports the jury's verdict or it is not convinced that the evidence plainly and palpably shows the trial court to be in error, then the order granting a new trial should not be disturbed. ConAGRA, Inc. v. Masterson, 290 Ala. 273, 276 So. 2d 134 (1973); Kennedy v. General Transport Company, Inc., supra.
Almost sixty years ago, this Court settled the question as to the legal effect of the last sentence of Act No. 656, Acts 1915, p. 722 [now codified at Tit. 7, § 764, Code of Alabama 1940], that no presumption in favor of the correctness of the trial court's ruling in granting or refusing a new trial shall be indulged by the appellate court.
In Hackett v. Cash, 196 Ala. 403, 72 So. 52 (1916), this Court held, in an opinion authored by Chief Justice Anderson, that a similar provision of Act No. 722, Acts 1915, p. 824, was not intended to override a long line of decisions as to what weight should be accorded the trial judge's conclusion upon the facts. If it was so intended, it would constitute an "invasion of the judiciary," the Court held.
Just a year later in Hatfield v. Riley, 199 Ala. 388, 74 So. 380 (1917), this Court was faced squarely with the question as to the effect of this rule of presumption in favor of the trial court's ruling on motion for new trial. Justice Gardner wrote for the Court that, because the trial judge (in a jury trial) had the witnesses before him and had the advantage of observing their manner and demeanor on the stand, the presumption is in favor of his ruling on motion for new trial. He observed: "This rule has not been changed by recent legislative enactment. Acts 1915, p. 722." He then added: "The reasoning in the cases of Hackett v. Cash, 196 Ala. 403, 72 So. 52, and Finney v. Studebaker, 196 Ala. 422, 72 So. 54, applies to the above cited act." These cases clearly demonstrate that the legislative addition to the Code by the enactment of Act 656, Acts 1915, p. 722, has not been overlooked by subsequent courts applying Cobb's rule.
*172 The case of Castleberry v. Morgan, 28 Ala.App. 70, 178 So. 823 (1938), cited in Justice Jones' dissent, insofar as it may conflict with these rules has been expressly disapproved by this Court. See Adams v. Lanier, 283 Ala. 321, 216 So. 2d 713 (1968) (Per Coleman, J.).
It would seem almost aphorismic to add that, in exercising the power to set aside verdicts, trial courts
In cases such as the instant case, where the evidence was in conflict and the trial judge granted a new trial without specifying the grounds but one of the grounds asserted by the movant was that the verdict is contrary to the great preponderance of the evidence, it is presumed that it was granted for that reason. The order should be affirmed because, upon a review of the evidence, it cannot be said that the great weight of the evidence plainly and palpably supports the jury's verdict. Authorities, supra.
Affirmed.
MERRILL, MADDOX, ALMON, SHORES and EMBRY, JJ., concur.
HEFLIN, C. J., and FAULKNER and JONES, JJ., dissent.
JONES, Justice (dissenting).
I respectfully dissent.
The scope of appellate review of an order granting a motion for a new trial following a jury verdict is in dire need of modification and clarification. This appeal presents a classical opportunity for such effort. Any re-examination of the guidelines for the exercise of the discretionary power of the trial court to set aside a jury verdict must begin with the premise that the right of trial by jury is constitutionally mandated. Substantive due process of law is violated when this fundamental right is infringed.
A full statement of the case, as well as the factual context in which the issue presented arises, is necessary as a basis for my reasons for differing with the majority.
Hubbard Brothers Construction Company, Inc., (plaintiff-appellant) claims damages against C. F. Halstead Contractor, Inc., (defendant-appellee) for work and labor done on account and for breach of written contract. Halstead counterclaims for damages incurred in remedying the alleged defects in the work performed by Hubbard.
The jury returned a verdict in favor of Hubbard and against Halstead in the sum of $25,755.90. The maximum recovery allowable under the evidence, including interest, is $24,216.15. Thus, the award exceeds the maximum allowable recovery by $1,539.75. Hubbard attributes this excess to an inadvertent mistake by the jury in computing the interest due on the principal.
Hubbard now appeals, alleging that the trial Judge erroneously granted Halstead's motion for a new trial.
Hubbard is a framing contractor and Halstead is a general contractor. Their contract called for Hubbard to furnish all of the labor and equipment necessary to perform the carpentry work on a 320-unit apartment complex known as the Cedarbrook South Apartments. Under the contract, Halstead possessed the right to terminate Hubbard's employment should he fail to prosecute this work with diligence, efficiency, and promptness.
The controversy centers upon the end product of Hubbard's workmanship on the apartments, which included, among other *173 things, crooked and leaning walls, floors, roofs and cabinets. Hubbard, although he admits that such was the end result of his carpentry, attributes the defects to his being forced to build on foundations which were incorrectly poured and thus resulted in his poor work product. Hubbard also alleges that Halstead was informed of the defective construction of the foundation, but that Halstead directed him to do the best he could under the circumstances.
Halstead's witnesses testified that it was quite common for foundations to be a "little off", but that the foundations in question were off to such a small degree that any skilled carpenter could have corrected the problem with a minimum of effort.
On the whole, both parties presented considerable testimony and other evidence tending to support their respective position. At the close of the trial, the jury, as the trier of the facts, was faced with a situation in which the posture of the evidence made a verdict for either side equally possible. The sole issue presented for our review is whether the trial Court abused its discretion in granting Halstead's motion for a new trial.
I would hold such a ruling was an abuse of discretion and reverse and remand this cause with instructions to enter an order overruling the motion for a new trial on the condition that Hubbard file within 30 days a remittitur equal to the sum in excess of the maximum amount of recovery warranted by the evidence, otherwise to grant a new trial.
Halstead's motion for a new trial contained six numbered grounds which claimed the two following substantive errors under Tit. 7, § 276, Code:
The power of a trial judge to set aside an improper verdict and enter an order for a new trial is inherent in courts of common law jurisdiction. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891). In principle, this power provides a safety valve in the judicial system by allowing the court to avoid any potential injustice which may result from a jury's bias, prejudice, passion, sympathy, or mistaken view of the merits of a case. Carlisle v. Miller, 275 Ala. 440, 155 So. 2d 689 (1963).
It does not, however, grant to the trial judge an unbridled discretion to veto the verdict of a jury and substitute his own opinion on the weight of the evidence or the excessiveness of the damages. Johnson v. Howard, 279 Ala. 16, 181 So. 2d 85 (1965); W. M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231 (1937); Winter & Loeb v. Judkins, 106 Ala. 259, 17 So. 627 (1895); Cobb v. Malone & Collins, supra. To temper the trial judge's potential to disrupt the well considered judgments of impartial jurors, guidelines of restraint have been judicially developed and interposed between the sanctity of the verdict and the power to grant new trials. These guidelines are to be used not only by the trial judge in gauging his own authority to grant new trials, but also by the appellate court in reviewing the record for possible abuses of discretion.
In cases such as the instant one, where the trial judge gives no reasons for his order granting the motion for a new trial, the appellate court must affirm if any of the grounds set forth in the motion is sufficient. Johnson v. Hodge, 291 Ala. 142, 279 So. 2d 123 (1973); Shepherd v. Southern Railway Company, 288 Ala. 50, 256 So. 2d 883 (1970); City of Tuscaloosa v. Townsend, 274 Ala. 268, 147 So. 2d 824 (1962).
Also, when a trial court grants a motion for a new trial without assigning a specific ground, this Court indulges the presumption that it was because the trial court concluded that the verdict was unjust in light of the evidence. Jones v. Strange, 289 Ala. 76, 265 So. 2d 860 (1972); Boyd v.*174
Shaw, 287 Ala. 26, 247 So. 2d 116 (1971). We will, therefore, first address the issue of whether the ground that "the verdict was not sustained by the great preponderance of the evidence" is sufficient to grant the appellee's motion for new trial.
The development of Alabama case law on the review of new trial orders generally, and of new trial orders based on the ground that the verdict was contrary to the evidence especially, began with the 1891 case of Cobb v. Malone & Collins, supra. Prior to 1891, decisions granting or refusing new trials were not reviewable. Barr v. White, 2 Port. 342 (1835) and Spence v. Tuggle, 10 Ala. 538 (1846). At that time, a statute was passed (Acts 1890-91, 779 now encompassed in Tit. 7, § 764) which abrogated this rule and provided that decisions on new trial motions were reviewable by appellate courts.
Cobb was the first case to construe this statute and it has been relied on by many subsequent courts facing the issue of the scope of review of new trial orders. I believe, however, that the authority of Cobb is not universally applicable to every new trial situation and that some rethinking of its doctrines, as subsequently interpreted and applied, is in order.
Initially, it is important to note that Cobb was an appeal from a refusal to grant a new trial and the most carefully drafted portions of the opinion deal with that issue rather than the review of an order granting a new trial. On the limits of the trial court's discretion, Justice Clopton, for the Court, first explains that the purpose behind the power to grant new trials is "to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice, on the part of the juries . . ."
He then admonishes the trial judge that "in exercising the power, the court should be careful not to infringe the right of trial by jury, and should bear in mind, that it is their exclusive province to determine the credibility of witnesses, to weigh the testimony, and find the facts . . . no ground of new trial is more carefully scrutined or more rigidly limited, than that the verdict is against the evidence."
After this aspirational introduction, Justice Clopton explicitly states that "when there is evidence on both sides, or some evidence to support the verdict, it should not be set aside, because it may not correspond with the opinion of the court, as to the weight of the testimony, or because it is against the mere preponderance of the evidence." This is a sound instruction, which is necessary to prevent the trial judge's unreasonable infringement upon the right to jury trial.
In the years since these statements of Justice Clopton, two rules have evolved to guide trial judges in granting motions for new trials. The first rule is axiomatic. If there is no evidence to support the verdict returned, a new trial must be granted because the case should not have gone to the jury initially. On the power of the trial judge to direct a verdict when there is no evidence tending to establish a party's case, see: Stonewall Insurance Company v. Lowe, 291 Ala. 548, 284 So. 2d 254 (1973); Tuskegee Auto Parts v. Dixie Highway Express, Inc., 276 Ala. 1, 158 So. 2d 645 (1963); Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674 (1932).
The second rule involves the discretion of the judge in that narrow area of cases, where, although there was some evidence to support the verdict, the totality of the case indicates that the verdict returned was so greatly opposed to the weight of the evidence as to cause irreparable injustice. Water Works and Sanitary Sewer Board of the City of Montgomery v. Norman, 282 Ala. 41, 208 So. 2d 788 (1968); Castleberry v. Morgan, 28 Ala.App. 70, 178 So. 823 (1938); Atlantic Coast Line R. Co. v. Burkett, *175 207 Ala. 344, 92 So. 456 (1922). Both are good rules and worthy of reaffirmation.
The rule set forth in Cobb concerning appellate review of decisions refusing to grant new trials is also sound: "When the presiding judge refuses to grant a new trial, the presumption in favor of the correctness of the verdict is thereby strengthened." Such a rule is the logical mandate of the policy to sustain jury verdicts unless they would result in irreparable injustice. Since the jury verdict alone is to be given such high credence, it follows that the concurrence of a presiding judge, who also had an opportunity to observe the demeanor of witnesses and examine evidence, must enhance the presumption that the verdict is correct.
The issue of the scope of review of orders granting a new trial was not before the Cobb Court and its summary treatment of that problem was mere dictum. The Court announced that "decisions granting new trials will not be reversed unless the evidence plainly and palpably supports the verdict." In retrospect, this language was unfortunate because it has been misinterpreted to mean that the verdict must be greatly, or even overwhelmingly, supported by the evidence. A re-examination of the Cobb language immediately preceding this statement of the rule reveals that the Court expressly analogized the situation at hand to the prevailing rule in a non-jury trial. The common law rule for review of ore tenus trials was "not to reverse the finding, unless it is so manifestly against the evidence, that a judge at nisi prius would set aside the verdict of a jury, rendered on the same testimony." Nooe's Executor v. Garner's Adm'r., 70 Ala. 443 (1881).
This is a reasonable rule to apply to the ore tenus trial situation because when a judge sits without a jury, then, he, like a jury, is the trier of fact. It is his opinion on the credibility of witnesses and comparative weight of evidence that determines the outcome of the litigation. The law, in such cases, has entrusted the trial judge with two distinct functions. First, he is to use his common knowledge of human events and his sensory perceptions of evidence to determine, to the best of his ability, the true facts of the case. Then, he is to use the skills and learning of his profession to apply those facts to the law and thereby obtain a legal conclusion which is the judgment he renders.
The case at hand, however, presents quite different considerations. Here, the trial Judge has overturned the verdict of the ultimate trier of factthe jury. His decision must be evaluated, not as the decision of an alternate trier of fact, which he is not, but rather as the decision of a presiding judge who is legally vested with carefully circumscribed discretion.
While case law application and interpretation has rendered Cobb's ore tenus analogy unfortunate, I am convinced from the full context of the opinion, that Justice Clopton did not intend to formulate a double standard for review of new trial orders. The absolutism of the presumption of correctness of the trial court's ruling whether to grant or deny a motion for a new trial is philosophically inconsistent with the sanctity of jury verdicts. On the one hand, the sanctity of the jury verdict is enhanced by the presumption favoring the trial court's ruling in denying a motion for a new trial. But, where the presumption of correctness is so absolute as to render the power of review impotent, the trial court's order granting a motion for a new trial effectively transfers this sanctity from the jury verdict to the trial judge.
The words "plainly and palpably" in the phrase "unless the evidence plainly and palpably supports the verdict" are the root of the problem. These words have been perverted into a quantitative test for the weighing of evidence. Taken for their literal meaning and, in the full context of the Cobb opinion, they mean just what Webster's *176 dictionary says they mean, "easily perceivable to the mind". By a mere substitution of the literal definition of the words "plainly and palpably", the rule enunciated in Cobb may be otherwise stated: An order granting a motion for a new trial will be reversed for abuse of discretion where on review it is easily perceivable to the mind from the record that the jury verdict is supported by the evidence.
The legislative amendment of the statute interpreted by the Cobb CourtActs of Alabama, 1915, p. 722, Tit. 7, § 764, Codedeserves comment. This amendment reads, "And no presumption in favor of the correctness of the judgment of the court appealed from shall be indulged by the appellate court." By increasing the evidential burden of sustaining a jury verdict when a motion for a new trial is granted, the Cobb rule, as interpreted by subsequent cases, does exactly what the legislature explicitly stated shall not be doneit indulges a "presumption in favor of the correctness of the judgment of the court appealed from."
It was my initial impression that the exercise by the Court of this legislative grant of power of appellate review of new trial orders should not be on a pick and choose basis, resulting in the abrogation of the conditions and restrictions implicit in the grant of such power. On further deliberation, however, I am convinced that this initial impression was erroneous. A grant of power of appellate review was an exclusive legislative prerogative. To exceed this prerogative and prescribe the scope of review is a violation of the separation of powers doctrine, and I am convinced that there is nothing inconsistent in the Court's acceptance and exercise of this grant of authority of appellate review of new trial orders on the one hand and the rejection of the legislative conditions and restrictions respecting that review on the other.
Having said this, however, I believe the exercise of the judicial prerogative to prescribe the scope of review is clearly compatible (in its goal if not in its means) with the policy expressed by the legislative admonition of no presumption in favor of the correctness of the trial court. Before proceeding to a discussion of what I believe is a proper expression of this judicial prerogative, I would pause to emphasize that whatever degree of compatibility may exist between my concept of this scope of review and that which is legislatively expressed by the amendment referred to above is purely coincidental and is neither necessitated nor compelled by such legislative expression. It was the evident concern of the legislature that the unchecked power to grant new trials threatened to disrupt the jury system. This concern, implicitly contained in the original grant of the power of review and explicitly set out by the amendment, leads me in the same general direction, though I would seek the end result through somewhat different means.
We start, then, with the proposition that, although the legislative attempt to prescribe the ground rules exceeded its prerogative, the judiciary in the rightful exercise of its prerogative as to the scope of review should aim for the same constitutionally mandated goalpreserving the right of trial by jury.
This does not mean that the "no presumption" rule is necessary or proper to accomplish this result. Literally interpreted, the legislative proscription would have affected a de novo review, stripping the trial court of all discretion. I believe the correct rule lies somewhere between these two extremes. The rule long adhered to by this Court, and now reaffirmed by this opinion, in effect renders futile all efforts to review an order granting a new trial where there is any evidence to support a verdict contrary to that rendered by the jury. Indeed, my research fails to disclose any such reversal in the Alabama Reports.
On the other hand, the legislative "de novo appeal" asserts the other extreme by proscribing any "presumption of correctness." *177 It seems to me that the extremities of each position decry its own incorrectness. I submit there is a middle ground, fully cognizant of the ultimate legislative intent and judicially protective of constitutional guarantees.
The correct rule, it seems to me, would recognize that motions for a new trial are generally addressed to the sound judicial discretion of the judge who presided over the trial; and, concomitant with this discretion, an order granting a new trial on a sufficiency or weight of the evidence ground would be favored with a presumption of correctness. But, consistent with the principle of judicial discretion generally, its exercise is subject to abuse, and its abuse is reversible upon review.
The guidelines for the exercise of this discretionary power to grant new trials are neither difficult nor novel in Alabama. The correct rule was eloquently articulated by Judge Samford in Castleberry v. Morgan, supra:
There is an implicit thread running throughout the majority opinion to the effect that logic requires the same presumption of correctness with respect to the trial court's granting or denying a motion for a new trial on the weight of the evidence ground. I can only observe that the immediacy of logic is transcended by the higher constitutional admonition against infringement of the right to trial by jury. After all, logic, like beauty, is so often in the eyes of the beholder.
I would reverse and remand on the condition of a remittitur to comport to the evidence on the issue of damages.
HEFLIN, C. J., and FAULKNER, J., concur.
FAULKNER, Justice (dissenting).
I concur in the dissent of Mr. Justice Jones. I write this only for the purpose of asking a question, to wit, "Will the Judge who knows the meaning of the words "plainly and palpably" please stand up?" The Third New International Dictionary defines the adverb "palpably" as capable of being palpable. "Palpable" is defined as capable of being touched or felt, and perceptible to the sense of touch. "Palp" comes from the Latin "palpare," meaning to stroke or to caress.
I can understand "plainly." This word is used a "right smart" by folks who grew up in rural areas of the South. "Plainly" means distinctly, or clearly. So, when the words "plainly and palpably" are used to describe the "weight of the evidence," does that mean the evidence is "clearly touching" or "distinctly caressing?"
The words "plainly and palpably" are about as pleasing to me as my having a good case of prickly heat. Surely, more descriptive, and meaningful, words can be found to say how much evidence is necessary to support a jury verdict.
At this point in time, there is really no sound reason for having the Cobb v. Malone rule. If the trial judge who grants or denies the motion for new trial has the courage to state his reason or reasons for doing so, we will not have to resort to this charade.
[1] Minor, 1. | September 25, 1975 |
7b0d95bf-4dd2-412b-988f-81e46f0abb10 | Weaver v. State | 318 So. 2d 772 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 772 (1975)
In re Stewart WEAVER
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTY. GENERAL.
SC 1430.
Supreme Court of Alabama.
September 11, 1975.
Rehearing Denied October 2, 1975.
William J. Baxley, Atty. Gen., Kermit M. Downs, Asst. Atty. Gen., for the State, petitioner.
No appearance for 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 Weaver v. State, 56 Ala.App. 29, 318 So. 2d 768.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur. | September 11, 1975 |
ef09eae3-e61e-459f-a572-db637b00ab8f | Cumens v. Garrett | 319 So. 2d 665 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 665 (1975)
In re Vernon CUMENS
v.
William E. GARRETT and wife, Ruth Garrett.
Ex parte William E. GARRETT and wife, Ruth Garrett.
SC 1198.
Supreme Court of Alabama.
September 25, 1975.
James & Lowe, Haleyville, for petitioner.
Carlton Mayhall, Jr., pro se.
HEFLIN, Chief Justice.
This case is before the court on petition by William and Ruth Garrett seeking a writ of mandamus to be issued to the Honorable Carlton Mayhall, Jr., Judge, Circuit Court of Winston County. The petition asserts that Judge Mayhall committed error by striking the Garretts' demand for jury trial in the action below. This court agrees.
Vernon Cumens instituted a mechanic's lien enforcement suit under the authority of Title 33, Section 37, Alabama Code of 1940, as amended (Recompiled 1958) et seq. The Garretts demanded a jury trial. Cumens moved to strike the demand and, upon a finding that there was no right to a jury trial in a mechanic's lien action, Judge Mayhall granted the motion. The suit was filed after the Alabama Rules of Civil Procedure became effective. Thus the question before this court is whether parties to a mechanic's lien suit are entitled to a jury trial as of right under the Alabama Rules of Civil Procedure, which have merged law and equity into one form of action.
Rule 38(a) of the A.R.C.P. reads: "The right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this State shall be preserved to the parties inviolate." This rule was included to insure that the right of trial by jury in civil actions would not be compromised by the merger of law and equity established by the new rules of civil procedure. The test for determining when one has a right to trial by jury is set out in the committee comments to Rule 38 as follows: "if an issue is of a sort which heretofore would have been tried to a jury, then the party has a constitutional right * * * to have it tried to a jury under the merged procedure."
The action to enforce a lien for work and labor done and materials furnished in the erection of a building is derived from, and wholly dependent upon, *666 statute. First Colored Cumberland Presbyterian Church v. W. D. Wood Lumber Co., 205 Ala. 442, 88 So. 433 (1921). The mechanic's lien statute created "a new right unknown to courts of law or of equity." Chandler v. Hanna, 73 Ala. 390, 391 (1882). The pertinent jurisdictional provision of the mechanic's lien statute appears at Title 33, Section 48, Code of Alabama, 1940 (Recompiled 1958) and is as follows:
This provision has been interpreted to give a lien claimant "a concurrent remedy in equity." Floyd v. Rambo, 250 Ala. 101, 104, 33 So. 2d 360 (1948); Woodall v. Southern Mfg. Co., 223 Ala. 262, 135 So. 446 (1931); Mathis v. Holman, 204 Ala. 373, 85 So. 710 (1920). Other statutes pertinent to the decision in this case are sections 49 and 52 of Title 33. Section 49 reads:
Section 52 provides:
The case of Ex parte Spence, 271 Ala. 151, 122 So. 2d 594 (1960), which was decided prior to adoption of the Alabama Rules of Civil Procedure, is the most recent case to address the issue of right of trial by jury in a mechanic's lien suit. In Spence, a writ of mandamus was sought to compel the trial judge to set aside an order overruling petitioner's motion to strike a jury demand in a mechanic's lien suit brought in equity. Thus, in Spence, the trial court was going to allow a trial by jury in a mechanic's lien suit begun in equity. This court granted the writ, ordering the trial judge to strike the jury demand. In its analysis of the issue of jury trial this court quoted from the case of Lucas v. Scott, 247 Ala. 183, 184, 24 So. 2d 540, 541 (1945):
The court then stated:
Both sections 49 and 52 of Title 33 were discussed and it was determined that neither mandated a jury trial as of right. In discussing section 49, the court stated:
Section 52 was dismissed with the statement, "We find no support in the provisions codified as § 52, Title 33, Code 1940, for the position taken by the trial judge." The court then went on to note that even if there was a right to a jury trial, as determined by the trial judge, the respondent below had failed to make a timely request for jury trial, and, thus, the trial judge should not have granted his request.
The case of Wilbourne v. Mann, 203 Ala. 26, 81 So. 816 (1919), was cited in Spence as support for the court's decision. In the Mann decision, the following was stated:
Thus this court is on record as holding that if a mechanic's lien suit is brought in equity a party is not entitled to a jury trial as a matter of right and that Sections 49 and 52 are not controlling.
On the other hand, if the suit is brought at law, a different result prevails for this court has held that the jury provision of the mechanic's lien statutes are controlling and the right to a trial by jury is available.
The case of Foster v. Prince, 224 Ala. 523, 141 So. 248 (1932), involved a law side action to enforce a materialman's lien where a jury verdict was rendered, assessing damages only. Several months later, plaintiff filed a motion to amend the judgment to declare that a lien existed. The court, without a jury, declared a lien and condemned the property to be sold in satisfaction of the earlier damage verdict. This court found the trial court's action to be in error. It stated:
"Such was the verdict here.
In Hurst v. Rudder Adams-Mill Co., 164 Ala. 504, 51 So. 519 (1909), this court stated:
At the time that the Alabama Rules of Civil Procedure became effective (July 3, 1973) there were two lines of cases dealing with the right of trial by jury in mechanic's lien enforcement actions. If the action was filed in equity, the right to a trial by jury did not prevail but if the case was filed on the law side the litigants had the right to demand a jury trial.
The merger of law and equity under the Alabama Rules of Civil Procedure presents an unusual problem in regard to whether or not a right of trial by jury shall be available as a matter of right to the parties. This issue can not be determined by the test outlined in the Committee Comments to Rule 38(a) heretofore mentioned because such comments do not address the issue of the right to a jury trial where it was available on the law side but not in equity prior to merger. Thus, this court must decide whether there is a present right to a jury trial by looking to other factors.
It has been held by several courts that trial by jury is a favored mode of trial. See Department of Public Works & Buildings v. Melling, 78 Ill.App.2d 37, 222 N.E.2d 515 (1966); Royer v. Royal Globe Insurance Co., 262 La. 685, 264 So. 2d 607 (1972); Watkins v. Siler Logging Co., 9 Wash. 2d 703, 116 P.2d 315 (1941); Doughty v. Nebel Towing Co., 270 F. Supp. 957, 960-62 (E.D.La.1967). Also, in cases where the right is not clear, it has been *669 held that "the right to a jury trial is always preserved." Bain v. Wallace, 167 Wash. 583, 10 P.2d 226 (1932); see Watson v. Hartford Accident & Indemnity Co., 214 So. 2d 395 (Ct. of App., La.1968). In construing Rule 38 of the Federal Rules of Civil Procedure, the United States Supreme Court has shown a decided preference for finding in favor of right to jury trial where the issue is in doubt. See Ross v. Bernhard, 396 U.S. 531, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959).
In looking to the mechanic's lien statutes before us, it is clear that the legislature concluded that issues involved in such cases were not beyond the pale of jury determination. Further, it is clear that a jury was available on demand prior to the adoption of Alabama Rules of Civil Procedure in some circumstances. These factors, plus an abiding faith that litigants should have a right of trial by jury in the absence of compelling constitutional or legal reasons to the contrary, motivates this court to hold that the parties to a mechanic's lien enforcement action have the right to demand a jury trial under the Alabama Rules of Civil Procedure.
By the use of special verdicts provided for by Rule 49(b), Alabama Rules of Civil Procedure, problems which heretofore existed with jury determinations of issues in mechanic's lien enforcement action can be minimized.
From this conclusion it follows that a writ of mandamus is due to be awarded unless the respondent judge, after being advised of this opinion, enters an order setting aside his order granting Cumens' motion to strike the Garretts' demand for a jury trial and enters an order overruling that motion.
The petitioners sought this writ on one other ground which should be commented upon. They seek to have this court order the respondent judge to grant their motion to transfer this case to the "law docket." Under the Rules and the merger of law and equity, there should be no law docket in the circuit court. We understand petitioners to be seeking by this motion to have their case placed on a jury docket and tried to a jury. Because our decision herein gives petitioners the relief they were seeking, it is not necessary to address the request for transfer.
Writ awarded conditionally.
MERRILL, MADDOX, JONES and SHORES, JJ., concur. | September 25, 1975 |
73a94cbb-a2d8-4ea7-b46c-5da1abe3f8bb | Ebony Club, Inc. v. STATE EX REL. SIMPSON | 318 So. 2d 282 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 282 (1975)
The EBONY CLUB, INC., et al.
v.
STATE of Alabama ex rel. Fred B. SIMPSON, District Attorney, Twenty-Third Judicial Circuit of Alabama.
SC 1290.
Supreme Court of Alabama.
September 11, 1975.
Watson, Moore & Mason, Huntsville, for appellants.
Fred B. Simpson, Dist. Atty., Twenty-Third Judicial Circuit, Huntsville, for appellee.
SHORES, Justice.
The facts were stipulated and are basically as follows:
The Ebony Club is a nonprofit corporation with its principal place of business in *283 Triana, Alabama. It exists as a private club for the sale of alcoholic beverages, including liquor, wine, and beer. The City of Triana approved a liquor application and the ABC Board issued a liquor license to the club.
The City of Triana is located in Madison County and has a population of less than 135,000.
In December, 1974, the state brought a quo warranto proceeding in the Circuit Court of Madison County asking that court to enjoin The Ebony Club from operating a drinking establishment in the City of Triana.
The trial court found that the City of Triana had no authority to issue a license to The Ebony Club for the sale on premises of alcoholic beverages; that the ABC Board had no authority under the laws of the State of Alabama to issue a license for the sale of such beverages; and permanently enjoined the club from operating a drinking establishment in Triana.
The appeal is from this judgment. It is affirmed.
The 1971 legislature passed the following act, which relates to Madison County:
"Act No. 2490
"Be It Enacted by the Legislature of Alabama:
*284 The 1973 Legislature passed Act No. 998, also relating to Madison County, which provides:
"Be It Enacted by the Legislature of Alabama:
Appellant contends that these acts violate Art. 1, § 22 (relating to laws impairing the obligation of contracts and to laws granting special privileges or immunities); Art. 4, § 103 (prohibiting monopolies); Art. 4, § 104 (prohibiting any special, private or local law in specified cases); and Art. 4, § 105 (prohibiting special, private or local laws); Constitution of Alabama 1901.
The 1971 Act, based upon a population classification, was a general act. We perceive no need to consider the objections made by appellant as to the validity of this act, since the City of Triana is also prohibited from authorizing or approving a liquor license under the 1973 Act, which is a local act. It is true that § 104 of the Constitution does prohibit the legislature from passing a special, private or local law in thirty-one enumerated cases. However, that section of the Constitution also includes the following language:
It is conceded that § 106 was complied with in so far as Act No. 998 is concerned.
The legislative power to regulate the sale of liquor is absolute. The legislature may regulate it as it sees fit, or prohibit it entirely. Fulton v. State, 171 Ala. 572, 54 So. 688 (1911); Dowda v. State, 203 Ala. 441, 83 So. 324 (1919); Armstrong v. State, 248 Ala. 124, 26 So. 2d 874 (1946).
*285 In Paulson's Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 239, 139 So. 2d 330, 333 (1962), this court quoted, with approval, the following:
Appellant contends that the state should be estopped to deny it a license, since it has been operating under one issued by the City of Triana for several years. We do not agree. The legislature has the right under the State Constitution to change the law with regard to regulating intoxicating liquors at any time. In F. W. Cook Brewing Co. v. Garber, 168 F. 942, 948 (M.D.Ala., N.D. 1909), the following appears:
We have considered other assignments of error and find no basis for reversal. The judgment appealed from is, therefore, affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL and MADDOX, JJ., concur.
JONES, Justice (concurring specially):
Although I concur in the opinion, the name of the club here enjoined suggests to me discriminatory application of the statute involved. This issue, however, is not raised or developed by the record. | September 11, 1975 |
5747e5e1-4fb4-4d7f-b28f-36109fa5f3c1 | White v. State | 319 So. 2d 247 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 247 (1975)
Carolyn Drake WHITE et al.
v.
STATE of Alabama.
SC 974.
Supreme Court of Alabama.
September 11, 1975.
Rehearing Denied October 2, 1975.
John H. Lavette, Birmingham, for appellants.
Arthur J. Hanes and Thomas Coleman, Sp. Asst. Attys. Gen., Birmingham, for the State.
MADDOX, Justice.
This short, concise and direct quote, taken from Dohany v. Rogers, 281 U.S. 362, 368, 50 S. Ct. 299, 302, 74 L. Ed. 904 (1930), sustains the trial court's judgment that attorneys' fees and litigation expenses are not recoverable costs in an eminent domain proceeding.
The landowners, after a judgment was entered in circuit court based upon a jury verdict, filed a motion with the trial judge asking him to direct the circuit clerk to tax $35,000 as costs to pay their attorneys' fees and expert witnesses' fees. The court overruled their motion and they appealed. We affirm.
The landowners cite three broad theories to support their argument that *248 they should recover their attorneys' fees and litigation expenses. First, they say that Title 19, Section 30, Code,[1] authorizes the court to tax these expenses as costs. We disagree. In a long line of cases this Court has held that in the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys' fees paid by the opposing side. City of Vestavia Hills v. Randle, 292 Ala. 492, 296 So. 2d 710 (1974); Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927); Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926); Alabama Digest, Vol. 5-A, Costs, Key No. 172.
Where a statute does authorize the recovery of attorneys' fees, a landowner may recover them. Mobile Housing Board v. Cross, 285 Ala. 94, 229 So. 2d 485 (1969). Title 19, Section 30, Code, does not authorize the recovery of litigation expenses, however.
The landowners' other theories are based on the proposition that attorneys' fees and expenses are embraced within "just compensation" in eminent domain proceedings.
Although Alabama appellate courts apparently have not passed on this particular question, the Supreme Court of the United States has. In Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (1893), Mr. Justice Brewer spelled out what the words "just compensation" mean. He wrote:
The right to recover attorneys' fees from one's opponent in litigation as part of the costs thereof did not exist at common law. See annotation, Eminent Domain Attorneys' Fees, 26 A.L.R.2d 1295.
*249 Several state appellate courts have construed provisions in condemnation statutes and constitutions for the payment of compensation or "just compensation" as not to include attorneys' fees wihtin those terms. United States v. 23.94 Acres of Land, 325 F. Supp. 330 (D.C.Va.1970); United States v. 254.35 Acres of Land, 46 F. Supp. 913 (D.C.La.1942); County of Los Angeles v. Ortiz, 6 Cal. 3d 141, 98 Cal. Rptr. 454, 490 P.2d 1142 (1971); Pacific Gas & Electric Co. v. Chubb, 24 Cal. App. 265, 141 P. 36 (1914); Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906); Seban v. Dade County, 102 So. 2d 706 (Fla.1950); Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971); Ottumwa v. Taylor, 251 Iowa 618, 102 N.W.2d 376 (Iowa 1960); Welton v. Iowa State Highway Commission, 211 Iowa 625, 233 N.W. 876 (1930); Muskegon v. Slater, 379 Mich. 466, 152 N.W.2d 652 (1967); Petition of Reeder, 110 Or. 484, 222 P. 724 (1924); North American Realty Co. v. Milwaukee, 189 Wis. 585, 208 N.W. 489 (1926).
Of course, when state statutes permit landowners to recover their litigation expenses, they may do so. Mobile Housing Board v. Cross, supra; State of Washington v. Roth, 78 Wash. 2d 711, 479 P.2d 55 (1971).
We note that the Uniform Eminent Domain Code promulgated by the National Conference of Commissioners on Uniform State Laws at its annual meeting held in August, 1974, makes provision for a landowner to recover litigation expenses under certain circumstances. Section 1205 of the Uniform Eminent Domain Code provides:
"[Recoverable Costs.]
Alabama has not adopted the Uniform Code or any other statute which would permit the landowners here to recover their litigation expenses.
Affirmed.
HEFLIN, C.J., and MERRILL, BLOODWORTH, ALMON, SHORES and EMBRY, JJ., concur.
FAULKNER and JONES, JJ., dissent.
JONES, Justice (dissenting):
I respectfully dissent. I would frame the issue thus: Does "just compensation", as constitutionally employed in eminent domain proceedings, mean full and unequivocally comprehensive payment, including attorney's fees and costs of litigation, for property taken? Alternatively stated, the sole and precise issue presented by this case of first impression is whether "reasonable compensation" is denied the property owner where he must pay the costs of litigation, including the attorney's fees, out of the award received based on his property's value?
I agree that Tit. 19, § 30, Code, does not support the property owner's position. In other words, I am in accord with the majority opinion that there is no statutory authority allowing the property owner attorney's fees or other costs incident to litigation.
The property owners next contend that fundamental justice and reason support their argument with respect to the term "just compensation", as that term is used in § 23 of Art. 1, Constitution of Alabama 1901. With this contention, I agree.
A condemnation proceeding is sui generis, totally unlike any other legal right, claim, or suit for damages known to our law. Issues of culpability, retribution for wrong, or civil liability comprise no part of such proceedings; and, unlike other civil actions, the right of recovery in a condemnation proceeding is rarely, if ever, contested. Consequently, the traditional rule allowing attorney's fees and other expenses only by statute, contract, or recognized equitable principles can hardly be said to control here.
While the power of eminent domain is an attribute of sovereignty, it is constitutionally restricted by the requirement: "unless just compensation be made therefor." This constitutional restriction recognizes that the sovereign power of appropriation is in derogation of the common and established inalienable right of property ownership. It is this expression embodied in the basic law which says in effect that while a taking of private property for public use can be forced and involuntary from the standpoint of the property owner, the citizenry that make up the body politic for whose benefit the property is taken must make whole such private owner from the common source.
As this Court has held, the purpose of condemnation is to effect an involuntary transfer of land, and eminent domain is in the nature of a forced sale of property rights for an amount of money equal to its value. Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516 (1937); City Council of Montgomery v. Moore, 140 Ala. 638, 37 So. 291 (1903); London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281 (1890). The safeguard, by which the State's inherent and unqualified power to appropriate private property is surrendered, is constitutionally mandated.
Thus, the procedure by which this mandate of "just compensation" may be effectually *251 enforced in favor of the landowner cannot in reason and justice render him less than whole. A holding to the contrary writes into the meaning of "just compensation" a condition in derogation of the plain meaning of this term when taken in its constitutional context.
Necessarily, then, the definition of "just compensation" must be gleaned from the sui generis nature of condemnation proceedings. Alabama Pattern Jury Instructions, Eminent Domain, 14.05, contains the following definition:
Following the above suggested jury instruction, under "References," appears this supplemental definition:
APJI, 14.15, contains the following instruction:
However scrupulously the jury by its verdict may heed these instructions, the property owner, when required to bear his own expenses of litigation, is not put in as good position pecuniarily as he would have occupied if his property had not been taken; nor does the "willing seller/willing buyer" test become a reality in affecting a net recovery to the property owner for the value of the property taken.
The end result of these declarations of the law, which find their source in the constitutional use of the term "just compensation," can be affected from the standpoint of the property owner only if he is allowed the additional recovery of the necessary and reasonable expenses incurred in pursuit of his remedy.
Other courts who, in the absence of the express statutory authority, allow reasonable expenses as costs against the condemnor likewise ground their holding on the definition of "just compensation." The Supreme Court of Illinois in Dickson v. Epling, 170 Ill. 329, 48 N.E. 1001 (1897) stated:
The Supreme Court of California in City of Oakland v. Pacific Coast Lumber and Mill Company, 172 Cal. 332, 156 P. 468 (1916) stated:
*252 To rebut this definition with the contention that the property owner need not resort to litigation and incur the expenses incident thereto begs the question. Such contention overlooks the involuntariness of the property owner's position in the first instance, as well as his unqualified right to pursue the matter in litigation to obtain the highest value contended for. It is only fair and just, therefore, that the condemnor who initiates the proceeding should bear the necessary and reasonable expenses incident to the involuntary position in which the property owner is placed.
Additionally, the property owners argue that to disallow expenses of litigation as a part of "just compensation" places an unfair weapon in the hands of the State in its negotiations with the property owner, and that this weapon is frequently used to compel the property owner to accept in settlement a sum less than the State's own appraised value. Whether this tactic is employed by the State, we need not decide; however, it is significantindeed persuasivethat the subtle reality of this pressure exists even in the absence of any such overt threat. It is implicit in the very nature of the negotiations. The property owner knows that if he declines the State's offer, he must expend a substantial amount of the total value received for his property in making the recovery. He is put to a choice, then, of accepting the State's offer or litigating at his own expense. In any event, this interpretation of "just compensation," at best, unnecessarily encourages a waiver of the property owner's constitutional right to full recovery for the value of the property taken.
The converse, on the other hand, is not true. Any property owner who sought to gamble for a higher recovery at the condemnor's expense runs the risk of having the trial court disallow the expenses of litigation where in retrospect the refused offer was a reasonable one. Otherwise stated, suppose a property owner refuses a $50,000 offer with the thought: "Why not litigate and risk a higher award since the costs of litigation is to be borne by the condemnor?" Suppose further that the jury awarded $40,000. In such event, the trial judge on motion for award of costs, applying the traditional rules governing such matters, could deny any additional recovery. This judicial discretion would serve as a safety valve against abuse by the property owner whereas no counterpart exists to stem abuse by the condemnor under the majority's interpretation.
The major opinion lays great stress on the interpretation of "just compensation" by the United States Supreme Court in Dohany v. Rogers, 281 U.S. 362, 50 S. Ct. 299, 74 L. Ed. 904 (1930). There the issue was whether the substantive due process clause of the 5th Amendment to the Federal Constitution requires "just compensation" to include attorney's fees and other costs of litigation in eminent domain proceedings. Here, the Alabama Supreme Court is asked to interpret its own State Constitution; and Dohany not only is not controlling, it is indeed poor precedent for the majority holding.
It is, to be sure, an anomaly of our jurisprudence that the United States Supreme Court has no difficulty in recognizing and applying the "independent state ground" doctrine while most state courts seem never to have heard of, much less apply, such doctrine.[1] Strikingly obvious, it seems to me, yet ignored by the majority, is the fact that minimum federal constitutional standards are not here in issue.
Finally, the State argues that, as a practical matter, condemnation awards, particularly jury verdicts, take into account items *253 of necessary expenses incurred in litigation; and thus no declared interpretation favorable to the property owners' contention is necessary. This argument is to the effect that we should either condone or encourage dishonesty within the system. I would respectfully decline to do either. Any award which goes outside the bounds of competent testimony as to value of the property taken must, on review, be set aside as excessive. This Court should neither promulgate a new rule nor adhere to an old rule which has as its avowed purpose the condoning of false testimony as to value or which will reflect on the veracity of a jury verdict.
Rather, by our holding here, we should further assure the integrity of the system by recognizing and giving full effect to the rule of damages heretofore alluded to (APJI), and by permitting the trial court, upon motion of the property owner following the verdict, to assess as costs the necessary and reasonable expenses, if any.
I would reverse and remand.
FAULKNER, J., concurs.
[1] "The costs of the application and proceedings thereunder, including the compensation of commissioners, who shall receive reasonable compensation to be fixed by the judge, must be adjudged and assessed against the applicant and his surety for costs, for which execution may issue. But should the applicant tender to the landowner or other party interested therein, prior to the application for condemnation, a sum of money in excess of that awarded by the commissioners, which tender he has kept good until the time of trial by paying the same into court to await the result of the proceedings, in which case the costs of the proceedings shall be taxed against the landowner or other party; but the commissioners awarding damages shall have no knowledge of the amount so tendered, and shall so certify in their award."
[1] See Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975), in which Mr. Justice Blackmun, speaking for the majority said: ". . . a State is free as a matter of its own law to impose greater restrictions than those this Court holds to be necessary upon federal constitutional standards." See also my dissent in McKinney v. City of Birmingham, Ala., 296 So. 2d 236 (1974). | September 11, 1975 |
e821aa97-377e-474e-8913-0b424d151327 | Babies v. State | 318 So. 2d 719 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 719 (1975)
In re Frank BABIES
v.
STATE.
Ex parte Frank Babies.
SC 1411.
Supreme Court of Alabama.
September 11, 1975.
Gray, Seay & Langford, Montgomery, for petitioner.
No appearance for the State.
MERRILL, Justice.
Petition of Frank Babies for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Babies v. State, 56 Ala.App. 37,318 So. 2d 777.
Writ denied.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | September 11, 1975 |
1af2ff91-6dc2-4696-8720-88042bb1fede | Tolbert v. State | 321 So. 2d 227 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 227 (1975)
In re Noah Earl TOLBERT
v.
STATE of Alabama.
Ex parte Noah Earl Tolbert.
SC 1136.
Supreme Court of Alabama.
September 4, 1975.
*229 J. Massey Relfe, Jr., Birmingham, for petitioner.
William J. Baxley, Atty. Gen. and Kermit M. Downs, Asst. Atty. Gen., for the State.
SHORES, Justice.
We granted certiorari in this case because the court has not considered the constitutionality of the Alabama Worthless Check Act enacted by the 1971 Legislature, Act No. 2479, Vol. V, page 3958, approved October 1, 1971, and now carried as Title 14, §§ 234(9)-(21), Code of Alabama Recompiled 1958, Pocket Part. The Court of Criminal Appeals held the act constitutional.
The legislature stated the purpose of the act as follows:
The petitioner was indicted for alleged violations of this act and the jury returned a verdict of guilty and fixed a fine at $5,000. This judgment of conviction was affirmed by the Court of Criminal Appeals.
The facts of this case as pertinent to our decision are: Mrs. Tolbert, the defendant, had for several years bought eggs from a Mr. Hogan. Mrs. Tolbert would send her truck to Mr. Hogan's place of business in Georgia and pick up a load of eggs. When a load of eggs was picked up, a check covering the cost of the last load was sent. In other words, a check covering the cost of the preceding load was delivered to Mr. Hogan when the next load was picked up. On October 9, 1972, Mrs. Tolbert sent her truck to Mr. Hogan's place of business; and the driver delivered to Mr. Hogan a check in the amount of $893.70 for payment of eggs received the preceding week. It is this check which was the subject of the indictment.
The evidence is without conflict that prior to the October 9, 1972, check, Mrs. Tolbert had delivered checks to Mr. Hogan which had been returned for insufficient funds. Several such checks were outstanding in October of 1972, totaling several thousand dollars.
*230 Mr. Hogan testified that he had called Mrs. Tolbert a number of times about the outstanding checks, and went to Oneonta to see her about the matter in December, 1972. A that time, the parties had a conversation about the indebtedness; and Mrs. Tolbert admitted that she owed the money and suggested that she sign a note for the full amount of all outstanding checks. The October 9th check had not been presented for payment in December, 1972. Following this meeting, a note in excess of $8,000 was executed by Mrs. Tolbert and delivered to Mr. Hogan. This note was payable July 8, 1973.
On May 7, 1973, the October 9th check was presented to the drawee bank and was stamped "ACCOUNT CLOSED." The grand jury returned the indictment in this case in August, 1973.
The petitioner challenges the constitutionality of the Alabama Worthless Check Act, contending that it is unconstitutionally vague and ambiguous; that its provisions are in conflict; and that it violates Article 1, Section 20 of the Constitution of 1901, providing "That no person shall be imprisoned for debt."
Section 5 of the Act provides:
It is the contention of the petitioner that this section is in conflict with Section 1, which speaks in terms of presentment, and also Section 9, which provides:
We think it is clear that the offense is complete when the check is drawn (meaning as defined by the act "drawing, uttering, issuing, or delivering," Section 3), with the intent to defraud, knowing at the time of drawing that there are insufficient funds in the drawee bank to cover such check, or knowing at the time of drawing that the depository on which the check is drawn does not exist, or that drawer has no account with an existing depository.
We find no fatal conflict between the quoted provisions of the act. Clearly, the act requires the prosecution to prove specific intent to defraud. One commentator has said in this regard:
As we read Section 9, it is a legislatively created aid to the prosecution in proving the requisite elements of intent to defraud; or knowledge on the part of the drawer, either that there were or might be at presentment insufficient funds to cover the check; or that the drawer had knowledge at the time of the drawing of the check that the drawer had no account in the drawee bank. A showing at the trial that the check had been presented, and that payment had been refused for either of the statutory reasons, is prima facie evidence of the drawer's intent to defraud with knowledge of such deficiency. This section does not conflict with Sections 1 or 5, the latter clearly stating that the offense is committed when the check is drawn with intent to defraud or with knowledge, etc. Section 9 simply provides a method by which the prosecution can discharge its duty to show such intent and knowledge, provided, in the language of this section, ". . . such person [drawer] has not paid the holder of the check the amount due thereon within ten (10) days after receiving notice that payment of such check was refused by the depository. . . ."
For reasons which will be addressed shortly, this section has no operation in the case before us.
The petitioner argues that Section 9 leaves criminal liability to the discretion of a third party (the bank) and thereby denies due process and equal protection to the drawer, citing People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972). In that case, the Supreme Court of Colorado, in holding that the Colorado bad check statute was unconstitutional, referred to the prima facie section and determined that ". . . Criminal liability and punishments should not be predicated upon a third party's unfettered discretion." (494 P.2d at 831) We agree with this general statement, but do not agree that the prima facie section creates a presumption of guilt; but, in appropriate cases, simply provides that the state has discharged its burden of showing intent to defraud and knowledge on the part of the drawer, thereby shifting the burden of proof as to these elements to the drawer. See State v. Coleman, 17 Utah 2d 166, 406 P.2d 308 (1965). As we construe Section 9, it does not relieve the prosecution of the burden of proving the defendant's guilt beyond a reasonale doubt and to a moral certainty. There seems to be a rational relationship between the facts proved, i. e., the drawing of the check, refusal of payment, failure after notice to subsequently pay the holder, and the prima facie presumption based upon such proven facts, i. e., intent to defraud and knowledge of insufficient funds. We think the relationship is sufficient to comply with constitutional standards. Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).
In construing this principle in Goolsby v. State, 213 Ala. 351, 104 So. 901 (1925), the following was cited with approval:
In arguing that Section 9 invalidates the act, the petitioner relies on Goolsby, supra. This court held in Goolsby that a prima facie section, similar to the one in Act No. 2479, stripped the defendant of the "presumption of innocence." However, at that time, the rules of evidence in this state precluded the defendant from testifying as to his uncommunicated motives, purpose, or intention. In Goolsby, the court observed that such testimony was not allowed under the statute for the purpose of rebutting the statutory presumption. That evidentiary rule no longer exists in Alabama. Starr v. Starr, 293 Ala. 204, 301 So. 2d 78 (1974). Thus, a defendant is free to testify as to his intent and mental process to rebut any presumption arising from the prima facie section of the Worthless Check Act.
Petitioner next contends that the act is nothing more than a means whereby a criminal statute is used to enforce a civil debt, and therefore is violative of Article 1, Section 20, Constitution of 1901. Every state in the union, except Vermont, has a criminal statute dealing with bad checks. Many of these statutes have been challenged on the ground that they allow imprisonment for debt. See Annot. 23 A.L.R. 459 (1923). Most of them have survived the constitutional challenge. But we agree with the petitioner that if improperly employed to collect a civil debt, such would be an unconstitutional application of such statutes. We further agree that such statutes lend themselves to use by the unscrupulous who seek only payment of debts and have no interest in criminal prosecution other than as a means of collecting money allegedly due them. This court has repeatedly condemned the use of threat of prosecution as a means of collection of worthless checks. Goolsby, supra.
Additionally, this court has spoken with respect to the constitutional provision prohibiting imprisonment for debt, and recognized that this prohibition established a broad public policy ". . . inimical. . . to the incarceration of a debtor as a means of coercing payment . . ." Carr v. State, 106 Ala. 35, 38, 17 So. 350, 351 (1894). Some courts, also recognizing that such statutes can be improperly utilized, have specifically recognized that the innocent drawer who may be wrongfully prosecuted has a remedy of malicious prosecution against the payee. Kitchens v. Barlow, 250 Miss. 121, 164 So. 2d 745 (1964).
The legislature recognized that such abuses could take place and provided in Section 13 that:
We point out that such provision does not preclude a suit for malicious prosecution. Further, in upholding the constitutionality of the Worthless Check Act, we should not be misunderstood as sanctioning its use for debt-collecting purposes. In addition to subjecting himself to a suit for malicious prosecution, a party using this statute for debt-collecting purposes may be subject to liability for abuse of process. Hotel Supply Co. v. Reid, 16 Ala.App. 563, 80 So. 137 (1918).
Attorneys should also pay heed to the admonition contained in DR 7-105, Code of *233 Professional Responsibility of the Alabama State Bar:
EC 7-21 of that Code states:
We turn now to a consideration of the application of the Worthless Check Act to the facts of this case. As stated at the beginning of this opinion, Mr. Hogan came to Alabama in December, 1972. Mrs. Tolbert executed and delivered to him a note covering the amount of money she owed him, evidenced by several outstanding checks, including the October 9th, 1972, check which is the subject of this prosecution. At that time, the October 9th check had never been presented to the drawee bank for payment. Mr. Hogan accepted the note, but began this prosecution prior to the due date of the note. The evidence is without dispute that the note was taken in payment of the debt evidenced by the check. It is true that a negotiable instrument, to be negotiable, must be payable in money. Code of Alabama, Title 7A, § 3-104(1) (b). This does not preclude, however, payment in anything of value if the parties so agree. Therefore, in December, 1972, the petitioner made good the check, before it was presented for payment, by executing a note and delivering it to the payee of the check. Concededly, the note covered the amount of the check.
Under the provisions of Section 9, the drawer of a check can escape the evidentiary presumption of intent to defraud by making good a bad check within ten days after notice of its dishonor. Surely payment before dishonor should have the same effect. Here, Mrs. Tolbert gave the payee of the check a note before the check was ever presented for payment. It would be incongruous indeed if one could avoid the implications of intent to defraud by making good a check after notice of dishonor, but not do so by making good the check prior to its dishonor. Clearly the legislature intended that this section was to relieve a drawer from the presumption of evil intent if payment were made on the check any time from the drawing of the check up to ten days after notice of its dishonor.
For this purpose, we perceive no difference between payment of the check and substitution of a note in its stead, where the note is accepted by the payee.
We emphasize that such payment does not destroy any criminality that may have existed if the check were drawn with intent to defraud, but merely prevents the prosecution from invoking the use of the prima facie section. The offense involved is theoretically complete when the check is drawn, with intent to defraud, the drawer knowing that there are insufficient funds to cover the same, or that the drawer has no account with the drawee, or that no such drawee exists. Thus, it is of no consequence if the drawer later pays the payee, or when he pays him, in so far as the crime itself is concerned. The payment has relevance only as it relates to the prima facie section. The trial court erred, therefore, in charging the jury that the bank's refusal to pay the check, which was the subject of this prosecution, was prima facie *234 evidence of the defendant's intent to defraud the payee.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court for the entry of a judgment in accordance with this opinion.
Reversed and remanded.
All the Justices concur except ALMON, J., not sitting. | September 4, 1975 |
8443d6fc-6bc4-474b-9584-e64263520160 | State v. Western Grain Co. | 318 So. 2d 722 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 722 (1975)
In re STATE of Alabama
v.
WESTERN GRAIN COMPANY.
Ex parte WESTERN GRAIN COMPANY.
SC 1399.
Supreme Court of Alabama.
September 11, 1975.
Rehearing Denied October 30, 1975.
Morris K. Sirote, Birmingham, for petitioner.
No appearance for respondent, the State.
MERRILL, Justice.
Petition of Western Grain Company for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in State of Alabama v. Western Grain Company, 55 Ala.App. 690, 318 So. 2d 719.
Writ denied.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | September 11, 1975 |
15f5027a-250c-4ddb-89db-3ac2ef820585 | Hudson v. Coffee County | 321 So. 2d 191 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 191 (1975)
Gaston Leroy HUDSON
v.
COFFEE COUNTY, Alabama, etc., et al.
SC 1256.
Supreme Court of Alabama.
September 18, 1975.
Rehearing Denied November 6, 1975.
*192 Francis H. Hare, Jr., Birmingham, for appellant.
Cassady & Fuller and Rowe & Rowe, Enterprise, G. A. Lindsey, Elba, for appellees.
SHORES, Justice.
The trial court granted defendants' motion to dismiss plaintiff's complaint in which he alleged that on January 19, 1972, the defendants were in charge or control of a bulldozer and a truck (sometimes known as a "lowboy"); that the defendants entered into an agreement regarding the use and operation of said equipment whereby the defendants leased or bailed, for a valuable consideration, said equipment for the purpose of moving dirt and making other improvements on the farm owned by the plaintiff's father.
After having completed part of the contracted work, the defendants attempted to load the bulldozer onto the lowboy to move it to another part of the farm for the purpose of performing further work.
While attempting to load the bulldozer onto the lowboy, the lowboy moved or rolled forward and ran over or struck the plaintiff causing him permanent injuries. The plaintiff claimed that the defendants were negligent in their control and operation of the bulldozer and the truck, and that they breached their contract in failing to exercise due care to provide and operate the equipment in a reasonably safe manner.
The defendants are Coffee County, its Probate Judge, Commissioners in their official and individual capacities, and agents. In granting the defendants' motion to dismiss, the trial court observed:
The court denied the motion to dismiss of each individually named defendant, in their individual capacities. This appeal is from that judgment.
This case was submitted in this court on August 6, 1975. The appellant devotes the major portion of his brief to an appeal to abolish the defense of governmental immunity in tort actions as to counties. This court did just that in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So. 2d 631 (1975), but limited the rule of that case and to similar causes of action arising thereafter. The decision to give that case, as well as two others decided on the same date (Jackson v. City of Florence et al., 294 Ala. 592, 320 So. 2d 68, and Harris v. Board of Water & Sewer Commissioners of City of Mobile, 294 Ala. 606, 320 So. 2d 624, so-called quasi-prospective application was not made hastily. Although urged to do so by many amicus curiae briefs filed in opposition to applications for rehearings in those three cases, this court declined to alter their quasi-prospective application.
As sympathetic as we are with the appellant's plight, we think it would be unwise to disturb a decision so recently and carefully reached.
Therefore, we must look to the law as it existed prior to Lorence, supra. Although the majority of this court who concurred in Lorence concluded the rule of county immunity to be unjust, there is little debate about what the rule was. In so far as counties are concerned, to be distinguished from municipal corporations, there are no cases from this court holding that a county is liable for torts committed while acting in a proprietary capacity. One opinion contains language suggesting that such was the rule, assuming that there was a statute authorizing the county to perform the acts from which the tort arose. In Laney v. Jefferson County, 249 Ala. 612, 614, 32 So. 2d 542, 543 (1947), which involved a wrongful death action brought against the county claiming that its agents, in the operation of a county hospital, negligently caused the death of plaintiff's intestate, the late Chief Justice Livingston said:
In commenting on county immunity in Alabama, Messrs. Copeland and Screws, "Governmental Responsibility for Tort in Alabama," 13 Ala.L.Rev. 296, 311, 312, observed:
". . .
These writers went on to say that as of 1961, they could find no case wherein a county function which resulted in tortious injury had been held to be corporate. We find none as of 1975, and our study of the cases leads us to conclude that the three enumerated elements were essential, prior to Lorence, supra, to state a claim against a county upon which relief could be granted. We find no error in the trial court's holding that, absent an allegation that the county in this case was discharging a duty expressly authorized by the legislature, the plaintiff failed to state a claim upon which relief could be granted.
The only remaining error urged by the appellant is the trial court's granting the defendants' motion to dismiss his contract claim.
We appreciate that the existence of governmental immunity as a defense resulted in litigants attempting to plead around that defense by alleging a contract action where no such effort would have been undertaken but for the defense of governmental immunity. Green v. Hospital Building Authority of City of Bessemer, 294 Ala. 467, 318 So. 2d 701 (1975), was a recent effort which was not successful. As the opinion in that case explains, specific terms in the contract requiring the exercise of reasonable care in its performance must be averred. It is insufficient to allege merely that the defendant impliedly contracted to use reasonable care.
In the instant case, the allegation is that the defendants impliedly or expressly contracted to exercise due care to provide equipment in a reasonably safe condition *195 and to otherwise conduct the movement and operation of the equipment in a reasonably safe manner. As Green, supra, points out, such general averments amount to nothing more than a breach of duty imposed by law, giving rise to an action in tort.
Lorence, supra, has now eliminated the necessity for attempting to convert tort claims into the contract actions to circumvent governmental immunity as to counties; but, as we have concluded that the holding in that case is applicable only to causes of action arising subsequent to the date thereof, we are compelled to hold that Green, supra, controls and precludes recovery on the contract theory in the instant case.
The judgment appealed from is, therefore, affirmed.
Affirmed.
BLOODWORTH, FAULKNER, JONES and ALMON, JJ., concur.
MERRILL and MADDOX, JJ., concur in the result.
EMBRY, J., concurs in part and dissents in part.
HEFLIN, C. J., not sitting.
EMBRY, Justice (concurring in part and dissenting in part):
I concur to affirm the judgment below. However, I dissent from, and disagree with, that portion of the opinion where it is stated:
In that case the action was against a public corporation organized by the county pursuant to statutory authority, as pointed out in my separate opinion. The Hospital Board, by virtue of the statute giving it life, was amenable to suit ex delicto and ex contractu. In this case the county of Coffee could not be amenable to suit, either ex delicto or ex contractu, for the simple reason that there had never been a legislative grant of authority made to it that permitted the actions in which it was engaged nor the authority to enter into the agreement pertaining to those actions, from either or both of which the suit arose.
As to that portion of the opinion which makes reference to Green v. Hospital Building Authority of City of Bessemer, my views are expressed, as well as ability permits, in the dissent voiced there. Therefore, there is no need to reiterate here. | September 18, 1975 |
95c0ff2b-8956-49c0-b2c7-babd4877f924 | Mobile Turnkey Housing, Inc. v. Ceafco, Inc. | 321 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 186 (1975)
MOBILE TURNKEY HOUSING, INC., a corporation and Commercial Contractors, Inc., a corporation
v.
CEAFCO, INC., a corporation By and Through Max E. Miller, as its Trustee.
SC 470.
Supreme Court of Alabama.
September 18, 1975.
Rehearing Denied November 6, 1975.
Donald F. Pierce, G. Hamp Uzzelle, III, Mobile, for appellants.
Bert S. Nettles, Mobile, for appellee.
ALMON, Justice.[*]
Respondents appeal from an adverse decree in a suit by a subcontractor against the general contractor.
In late 1968 the Mobile Housing Authority, pursuant to a program sponsored by the Housing and Urban Development Office (HUD), began to solicit bids for a housing project to be built in Mobile. The contract for "Jesse Thomas Homes," as the development was called, was awarded to Mobile Turnkey Housing, Inc. (Turnkey). Turnkey was incorporated by Commercial Contractors, Inc. (Commercial) for the sole purpose of developing this project. The Mobile Housing Authority transferred title to the property to Turnkey. Turnkey contracted with Commercial to act as general contractor in the construction of the project. Commercial sub-contracted with *187 Ceafco, Inc. (Ceafco), the complainant, to do the grading and site work on the project.
Ceafco encountered soil that could not be compacted to the required density, a situation which could only be corrected by bringing in large amounts of borrow fill. The trial court found that because of the encounter with bad sub-soil Ceafco ceased work on the project on May 15, 1969.
A meeting between representatives of Ceafco and Commercial was held on May 19, 1969, at which, according to the court's findings, Commercial orally agreed to bear this extra expense. (This oral promise was disputed by Commercial.) Ceafco went back to work and Commercial submitted a request to HUD for the extra cost$110,715.00. The Atlanta office of HUD refused this request, but the work continued and the site work was completed about the first of January, 1970.
Throughout the summer payments for the work were made to Ceafco on a periodic basis. About once a month Ceafco received payment for the work they had completed up to that point. Each time Ceafco received payment they executed a "receipt and lien waiver" which stated that Ceafco waived and released any right they might have to file a lien against the property for work done up to the last date of payment.
Ultimately the entire project was completed and the property was conveyed back to the Mobile Housing Board. Upon Commercial's refusal to reimburse Ceafco for the extra cost, Ceafco brought this suit.
As originally brought this lawsuit joined three respondents: Turnkey, Commercial and The Mobile Housing Board. However, Ceafco later amended its complaint to strike the Mobile Housing Board.
Ceafco's complaint, as later amended, bases a claim for relief on the oral agreement allegedly made between Ceafco and Commercial on May 19 and seeks to establish a lien in the amount of $110,715.00 on the property. After the commencement of the suit, but before the case went to trial, Caefco filed a petition for bankruptcy, and Ceafco is now maintaining this suit through its trustee.
In their answer, Commercial and Turnkey set out the following defenses to the complaint:
1. that Ceafco had received full payment under the contract of February 20, 1969;
2. that the "receipt and lien waiver" forms that Ceafco executed each time it received a periodic payment constituted waivers releasing Commercial from any liability on any claim connected with the project;
3. that the contract of February 20 stated that it was the entire agreement and any changes to it would have to be in writing (Art. XV of Contract), and that Commercial would not be liable for any extra work or material without written order (Art. IV of Contract); and
4. that, because Ceafco was already legally bound to provide borrow fill under the original contract of February 20, 1969, there was no consideration for any oral promise that might have been made between Ceafco and Commercial at the meeting of May 19.
The trial judge told the advisory jury in his charge that the doing of an act which you are already legally obligated to do is not sufficient consideration to support a contract. But an exception to this rule exists when due to unforeseen and extraordinary difficulties in performance the law must sustain the promise based upon standards of honesty and fair dealing.
*188 Following these instructions the jury returned interrogatories to the effect that the new promise to pay by Commercial to Ceafco was supported by adequate consideration and there was not a valid release of all claims by Ceafco supported by adequate consideration.
In its final decree the court found as follows:
Upon these findings, the court ordered that a judgment in the amount of $112,929.75 be entered against Commercial in favor of Ceafco, and decreed that a lien in this amount be placed upon monies owed by Turnkey to Commercial.
From this decree of the circuit court Commercial and Turnkey have appealed.
We view the dispositive issue to be whether the trial judge was in error in finding consideration for the new promise to pay additional money simultaneously with a finding that the original sub-contract covered the additional work encountered.
It is manifestly clear from the court's findings and the provisions of the contract set forth that Ceafco contracted to do the work regardless of any soil conditions that might be encountered. Further, the evidence tends to show that the provision of the contract which provided for the payment of an additional sixty-five cents per cubic yard for undercutting required as a result of unsatisfactory material below the surface was negotiated by the parties to provide for the very contingency which is the subject of this litigation.
The alleged "unforeseeable consequences" can hardly be termed as such when the contract in unambiguous terms provided for just such a contingency.
The well reasoned case of Shriner v. Craft, 166 Ala. 146, 51 So. 884 (1910), dealt with this problem and concluded by saying:
*190 This rule was further elaborated on in McDonough v. Saunders, 201 Ala. 321, 326, 78 So. 160, 165 (1917):
1 S. Williston, A Treatise on the Law of Contracts, § 130 (3d ed. 1957) provides:
See also Little v. Reddit, 264 Ala. 371, 88 So. 2d 354 (1956) and Hawkins v. First Federal Savings and Loan Ass'n, 291 Ala. 257, 280 So. 2d 93 (1973).
Admittedly there was evidence that Commercial furnished Ceafco with a soil test which indicated that there were no unsuitable soil conditions at the worksite. This matter was submitted to the advisory jury which found no fraud or misrepresentation. The trial court reached the same conclusion.
The principle of law which we follow seems on occasion to be rather harsh. Yet to hold otherwise would permit one party to a valid and unambiguous contract to use his failure of performance as a coercive force to extract a higher price than was originally contracted for.
In view of our holding, we do not find it necessary to reach other assignments of error.
The decree is due to be reversed and the cause remanded.
Reversed and remanded.
All the Justices 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. | September 18, 1975 |
6c3b91ff-55b5-4954-9d37-f59bba49ccee | CF HALSTEAD CONTRACTOR, INC. v. Dirt, Inc. | 320 So. 2d 657 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 657 (1975)
C. F. HALSTEAD CONTRACTOR, INC., a corporation
v.
DIRT, INC., a corporation.
SC 1085.
Supreme Court of Alabama.
August 21, 1975.
Rehearing Denied October 2, 1975.
*658 Crenshaw & Minor, Montgomery, for appellant.
Thomas A. Deas, Mobile, for appellee.
BLOODWORTH, Justice.
This appeal involves the respective rights and obligations of a contractor and his subcontractor under a contract for the preparation of a construction site. Appellant contractor (defendant below) appeals from a judgment rendered on a jury verdict for the full amount sued for by appellee subcontractor (plaintiff below).
Appellant, C. F. Halstead Contractor, Inc., is a general contractor who contracted to build a warehouse and building for Lowe's Department Stores on Dauphin Street in Mobile. Appellee, Dirt, Inc., is a site contractor. Halstead negotiated a subcontract with Dirt under which Dirt was to install the site work for the project. Dirt agreed to remove unsuitable soil from the site (referred to as "undercutting"), to haul in sufficient dirt (referred to as "backfill") to achieve the compaction necessary for construction, and to render other services necessary for the preparation of the construction site.
The parties initially considered contracting on a "unit price" basis. However, after determining that an "undercut" of one foot and a "backfill" of two feet should be sufficient, the parties finally contracted on a "cost-plus" basis with the compensation to Dirt to equal the amount of Dirt's cost on the job plus a profit in the amount of 15 percent of the cost, but with the total compensation not to exceed $50,000.00. The written contract stated that Dirt was to "[f]urnish all labor, materials, and equipment necessary to install the site work" and specified that the work to be performed was to include, but not to be limited to, an undercut of one foot.
After the work had commenced, the subcontractor, Dirt, discovered a spot where the soil was soft, requiring an undercut deeper than the one foot originally contemplated. Harrison, president of Dirt, informed Tatum, president of Halstead, of the necessity of a deeper undercut. Tatum authorized Harrison to undercut to whatever extent was necessary. It is from this authorization that the instant controversy has arisen.
Dirt contends that Tatum's authorization of a deeper undercut constitutes a modification *659 of the contract from its original "cost-plus" basis and that Dirt is entitled to additional compensation for the additional undercutting and backfill. Halstead contends that the authorization did not amount to a modification, that the additional work fell within the terms of the original "cost-plus" contract, and that no additional compensation was ever authorized.
Dirt's substantiation of its cost consists solely of its records as to the number of truckloads of undercut and fill dirt which were hauled; Halstead contends that such records are relevant only in "unit price" contracting. Halstead maintains that one performing services under a "cost-plus" contract is under a duty to keep accurate, detailed records of actual expenses and is not entitled to compensation in the absence of such records.
At trial, the testimony clearly established the fact that an additional undercut was performed. However, the testimony was in conflict as to the quantity of additional dirt removed and the quantity of additional dirt used as backfill. Dirt's records of the number of truckloads of dirt removed and added were at variance with the calculations of Dirt's expert witness. On the basis of measurements taken by "borings" at the site, the expert, a registered engineer, calculated the additional work to be significantly less than the amount of additional work reflected by Dirt's records. (This conflict is largely due to a difference in the methods of apportionment between what was necessary to achieve the undercut of one foot and the additional undercut.) Halstead argues that, if the cost of the amount of the additional work computed under the expert's calculations were billed on the basis of Dirt's usual "unit price," the additional cost would total only $3,903.10. Under the calculations based on its own records of truckloads, Dirt claimed $11,800.00 for the additional work. The jury awarded the full amount sued for. Halstead contends that the jury award is excessive.
In short, this appeal presents three basic issues for review: 1. whether there was sufficient evidence upon which the jury could find that Tatum's authorization of additional undercut constituted a modification of the original contract; 2. whether a subcontractor who claims compensation under a "cost-plus" contract is entitled to payment in the absence of an itemization of its costs; 3. whether the jury's verdict was excessive because it exceeded the amount testified to by the subcontractor's expert witness and because it was rendered in the exact amount sued for.
1. On the issue as to whether there was sufficient evidence to find a modification of the original contract, Halstead cites Badders & Britt v. Davis, 88 Ala. 367, 6 So. 834 (1889) for the proposition, viz.:
Halstead argues that there was no express promise to pay in the instant case, therefore the presumption is that the additional work was performed without extra charge and that there was no effective modification of the contract.
We think the answer to this assertion lies in this Court's holding in Bonie v. Griffin, 252 Ala. 299, 40 So. 2d 870 (1949) where the Court said:
Even more recently, we held in Huffman-East Development Corporation v. Summers Electric Supply Company, 288 Ala. 579, 263 So. 2d 677 (1972):
Looking to the evidence in the case at bar, we find that Harrison (Dirt's president) testified as follows at trial:
As we have already indicated, this Court in Bonie v. Griffin, stated that a written contract could be orally modified "if the additional work was mutually agreed upon by the parties or done under circumstances implying mutual assent." 252 Ala. at 300, 40 So. 2d at 872.
Here, the jury could have found Tatum's consent to a modification to be implied from the circumstances, and the jury could conclude that Harrison's purpose in seeking the authorization was to insure that, for any additional services rendered, the subcontractor would receive additional compensation. The jury could also infer that Tatum recognized Harrison's request for authorization as impliedly including a request for the authorization of additional compensation.
In cases such as the present one, "[w]here, on appeal, the sufficiency of the evidence to support the verdict is at issue, only those tendencies of the evidence most favorable to the verdict are reviewed; and such inferences as the jury were free to draw are indulged." W. T. Ratliff Company, Inc. v. Purvis, 292 Ala. 171, 178, 291 So. 2d 289, 294 (1974). We cannot say that the jury's verdict is not supported by the evidence.
2. Halstead further maintains that one who claims compensation under a "cost-plus" contract is entitled to payment only upon a showing of actual cost. It is undisputed that the subcontractor's only showing of cost consists of its records of the number of truckloads of dirt transported. Although such proof may not be the most desirable means of establishing cost, we are unwilling to hold, as a matter of law, that the jury was not justified in finding such records to be sufficient to substantiate the subcontractor's cost. In other words, we think the probative value of such proof is for the jury.
3. Finally, Halstead contends that the jury verdict was excessive. Dirt's expert witness testified that his measurements showed that 1,606 cubic yards of additional "undercut" was made and that 1,946.03 yards of "backfill" was brought in. Halstead maintains that, on the basis of Dirt's usual prices, this additional work would be billed at $3,903.10. However, Dirt's bill was for $11,800.00, based on the number of truckloads of dirt involved.
Of course, the testimony of expert witnesses is not binding on the jury unless the subject is one exclusively within the knowledge of experts. Union Central Life Insurance Company v. Scott, 286 Ala. 10, *661 236 So. 2d 328 (1970); Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755 (1934).
Although the expert's testimony varied from that of Dirt's president, Harrison, the latter himself was an experienced site contractor whose testimony the jury could reasonably regard as persuasive. The mere fact that the jury found Harrison's testimony to be more credible than the testimony of the expert does not, of itself, indicate that the jury's verdict was excessive.
Halstead makes a final contention that, since the jury returned a verdict in the exact amount sued for, this, of itself, indicates that the verdict was the result of "bias, passion, and prejudice." We cannot agree. We have heretofore held that the mere fact the jury returned a verdict in the exact amount sued for is not of itself evidence of bias, passion, or prejudice. Crum v. McGhee, 289 Ala. 244, 266 So. 2d 855 (1972).
Having disposed of the issues raised on this appeal favorably to appellee, it is unecessary that we consider the appellee's several motions to affirm.
Affirmed.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur.
BLOODWORTH, Justice.
In brief supporting application for rehearing, appellant Halstead insists that our original opinion is in error in four particulars:
We think we have sufficiently answered contentions 2-4 in our original opinion, at least to our satisfaction.
With respect to contention 1, it is argued that we have tacitly approved construction of a written contract by the jury, contrary to the rule of our decisions. We think not.
It is, of course, fundamental in our law that it is the duty of the court and not the jury to "analyze and determine the meaning of a contract * * * when its terms are clear and certain, and also [to] ascertain whether or not it is ambiguous * * *." Air Conditioning Engineers v. Small, 259 Ala. 171, 176, 65 So. 2d 698, 703 (1953) [Emphasis ours].
When, however, its terms are doubtful of meaning or the language is ambiguous, the pre-contract negotiations and conduct of the parties may be looked to by the jury as an aid in interpreting the contract. Air Conditioning Engineers v. Small, supra, where this Court held:
We think the terms of the contract in question here fall within the ambit of *662 the rule of Air Conditioning Engineers v. Small, supra, and the issues here were properly submitted to the jury.
Opinion extended.
Application for rehearing overruled.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | August 21, 1975 |
df97ed28-de16-4b29-8516-d6c83394a0b3 | Mead Corporation v. City of Birmingham | 321 So. 2d 655 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 655 (1975)
In re the MEAD CORPORATION
v.
CITY OF BIRMINGHAM, Alabama, et al.
Ex parte CITY OF BIRMINGHAM, a Municipal Corporation.
SC 1211.
Supreme Court of Alabama.
October 2, 1975.
Rehearing Denied November 26, 1975.
Johnson, North, Haskell & Slaughter and Frank M. Young, III, Birmingham, for petitioner.
Norman K. Brown, W. G. Stone, Fred A. Powell, Powell Lipscomb, Jack Harrison, Bessemer and Birmingham, for respondent.
FAULKNER, Justice.
The City of Birmingham filed a petition for writ of mandamus, praying that this court require Judge Pickens to transfer the cause to the Birmingham Division. We grant the writ.
On February 4, 1975, the City Council of Birmingham adopted a resolution of annexation of certain territory located outside the city limits. An election was ordered to be held on March 8, by the Probate Judge. Meanwhile, on February 17, Mead Corporation filed a complaint in the Bessemer Division of the Circuit Court challenging the legality of the election, and seeking a temporary restraining order, and a preliminary injunction. Judge Pickens issued a temporary restraining order. Subsequently Birmingham filed a motion to transfer the case to the Birmingham Division, alleging that the cause of action did not accrue or arise in the Bessemer Division, and therefore that division did not have jurisdiction. Judge Pickens overruled the motion. On appeal to this court, we suspended the temporary injunction that had held up the election. The election was held, as scheduled, and a majority of the qualified electors voted in favor of annexation. In accordance with our order, the results were not certified to the Judge of Probate.
After the election, Birmingham petitioned this court for a writ of mandamus, asking that Judge Pickens' order denying the motion to transfer, be set aside. We issued a rule nisi requiring the Judge to show cause why his order should not be set aside, and the case transferred to the Birmingham Division. Judge Pickens answered that the territory sought to be annexed was within the Bessemer Division; consequently, the action was properly brought there. On the other hand, Birmingham asserts *656 that the action was improperly brought in the Bessemer Division because the cause of action did not accure or arise within the territorial limits of that division and that the Bessemer Division has exclusive jurisdiction only over causes of action arising within it.
In Ex parte Central of Georgia Ry. Co., 243 Ala. 508, 10 So. 2d 746 (1942) this court said, "`. . . the court at Bessemer has exclusive jurisdiction of all civil actions at law upon causes of action arising in the territorial jurisdiction of that court, and such jurisdiction is limited to suits upon causes of action arising within such territory." In Ex parte Southern Building Code Congress, 282 Ala. 523, 213 So. 2d 365 (1968) this court re-emphasized that the venue approach had been abandoned, and adopted as a basis of jurisdiction in the Bessemer Division, the fact as to where the cause of action, or case, accrued or arose.
In this case we are of the opinion that the cause of action accrued or arose in the Birmingham Division. The subject matter of the suit does not involve title to land. On the contrary, the subject matter is an election having its situs in Birmingham. The Probate Judge ordered the election held in Birmingham, the ballots were canvassed in Birmingham, and the results were made known there. Thus, all of the facts giving rise to the suit occurred in Birmingham. The suit, therefore, should be heard in Birmingham, and the trial judge erred when he denied the motion to transfer.
The writ of mandamus is due to be awarded.
HEFLIN, C.J., and MERRILL, BLOODWORTH, MADDOX, ALMON and EMBRY, JJ., concur.
SHORES, J., concurs in the result.
JONES, J., dissents.
JONES, Justice (dissenting):
I disagree with the result and the rationale of the majority. The question presented by this Petition for Mandamus is controlled by the Bessemer Court Act of 1919 (Local Acts of 1919, p. 62), §§ 2 and 9½ which provides in pertinent part that all equity cases arising in the Bessemer Cut-Off may be brought either in Bessemer or Birmingham, and that no case at law or in equity is to be brought in Bessemer unless the case arose in the Bessemer Cut-Off. Ex parte Central of Georgia Ry. Co., 243 Ala. 508, 10 So. 2d 746 (1942). All of the territory sought to be annexed through the annexation election is situated in the Bessemer Cut-Off, and all of the people affected thereby live in the Bessemer Cut-Off. To holdas the majority doesthat, since the election was scheduled by the Probate Court to be held in Birmingham, the cause of action arose in Birmingham and not in the Bessemer Cut-Off is an adjudication of one of the principal issues raised in the complaint filed by Mead Corporation challenging the legality of the election.
The opinion states as a fact that "the subject matter is an election having its situs in Birmingham. The Probate Judge ordered the election held in Birmingham, the ballots were canvassed in Birmingham, and the results were made known there."
It seems to me that the entire factual basis for concluding that the cause of action (Mead's complaint contesting the election) did not arise in the Bessemer Cut-Off has been adjudicated adversely to Mead for the first time in this cause on appeal. The only issue properly before this Court is whether Mead's election contest suit is an action which accrued in the Bessemer Cut-Off and thus was properly filed there.
For this Court to adjudicate the merits of Mead's claim of contest can only have the effect of cutting the pattern to fit the cloth. By prejudging the merits of Mead's *657 main action, the Court has found a factual basis for concluding that the cause of action accrued outside the territorial limits of the Bessemer Cut-Off. The fact that the election has already been held in Birmingham, in support of the conclusion that the cause of action accrued in Birmingham, constitutes some sort of reverse rationale to which I am judicially unaccustomed.
I have made no prejudgment as to the merits of Mead's contentions for contesting the election; but I have no difficulty in concluding that the legislative acts creating the Bessemer Cut-Off permit a suit to be filed and maintained in Bessemer which has as its gravamen the contest of an annexation election affecting solely the territory and people within the geographical confines of the Bessemer Cut-Off. | October 2, 1975 |
4d9b5cbe-8995-49df-af84-7e900ae479fe | Waters v. State | 318 So. 2d 346 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 346 (1975)
In re Cleveland WATERS
v.
STATE.
Ex parte Cleveland Waters.
SC 1400.
Supreme Court of Alabama.
September 4, 1975.
Myron K. Allenstein, Gadsden, for petitioner. No appearance for the state.
EMBRY, Justice.
Petition of Cleveland Waters for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Waters v. State, 55 Ala.App. 646, 318 So. 2d 342.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | September 4, 1975 |
31bb2c78-2d33-465c-944f-87a68f5104c1 | City of Leeds v. Town of Moody | 319 So. 2d 242 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 242 (1975)
CITY OF LEEDS et al.
v.
TOWN OF MOODY.
SC 735.
Supreme Court of Alabama.
September 18, 1975.
*243 Charles L. Kerr, Leeds, for appellants.
Church & Trussell, Pell City, for appellee.
ALMON, Justice.[*]
Appellee, Town of Moody, filed its complaint in the Circuit Court of St. Clair County seeking injunctive relief against an ordinance enacted by the City Council of the nearby City of Leeds. The ordinance in question, Ordinance 395, purported to annex certain real property under the authority of Tit. 37, § 137(1)-(3), Code of Alabama 1940, Recompiled 1958, which provides in pertinent part:
Contrary to the findings of the Leeds City Council made prior to the enactment of Ordinance 396, appellee's complaint charged that all of the land sought to be annexed by such ordinance did in fact lie within the police jurisdiction of the Town of Moody and, furthermore, that it was not contiguous to the corporate limits of Leeds. The requirements of Tit. 37, § 137(1) not having been met, the complaint prayed that Ordinance 395 be declared null and void. Additionally, the complaint asked that due to the alleged irreparable damage which would be suffered by the Town of Moody by the loss of territory over which it had therefore exercised its police jurisdiction, a preliminary injunction issue against the appellant from taking any further action to incorporate the disputed land and, after a hearing on the merits, appellant be permanently so enjoined.
In its answer, appellant admitted that a small triangular portion of the land sought to be annexed by Ordinance 395 did lie closer to the southernmost corporate limits of the Town of Moody than the northernmost limits of the City of Leeds. The answer also interposed a motion to dismiss all aspects of appellee's complaint which did not arise out of the question of whether or not Ordinance 395 illegally encroached upon the police jurisdiction of the Town of Moody. More specifically, since the Town of Moody had standing to protect the legal interests of only those persons who resided in the area alleged to be within its police jurisdiction, it conversely had no standing to raise the question of whether or not the portion of land annexed by Ordinance 395, but outside its police jurisdiction, was contiguous to the corporate limits of the City of Leeds.
According to the latest federal decennial census (1970), the City of Leeds has a *244 population of 6,991; its corporate limits are situated in both Jefferson and St. Clair Counties. The 1970 population of the Town of Moody was 504; its corporate limits are situated entirely in St. Clair County. The two cities are roughly one and one-half miles apart. The testimony adduced before the trial court showed that the City of Leeds since 1950 continuously had had in force ordinances levying taxes in the form of business licenses within its police jurisdiction.
Sometime prior to April, 1973, the then representative of St. Clair County, Roy H. Coshatt, advertised in the local newspapers of St. Clair County proposed bills which if enacted would have removed the corporate limits of the City of Leeds from St. Clair County. Appellee, over objection, was allowed to introduce evidence that the Mayor of the City of Leeds, James H. Wright, and Representative Coshatt entered into discussions to see if some compromise could be reached which would be satisfactory to both municipalities and the residents living in the area between those municipalities. In essence, the resulting agreement reached by the parties was that Representative Coshatt would not introduce the proposed bills in exchange for a promise on the part of the City of Leeds that (1) it would relinquish its police jurisdiction over any territory in St. Clair County which lay outside its existing corporate limits, and (2) it would not accept in the future any petitions for annexation of land in St. Clair County. Representative Coshatt testified that it was also agreed that fire and police protection for those inhabitants of the area theretofore serviced by the City of Leeds would become the responsibility of St. Clair County.
In several regularly scheduled meetings of the Leeds City Council, that body officially adopted the foregoing agreement and resolved to reduce same in two letters which would be sent "in good faith" to Representative Coshatt and the Chairman of the County Commission of St. Clair County, James H. McClendon. These letters, dated April 16, 1973, and July 2, 1973 were also introduced over the objection of appellant.
The Mayor of Moody, M. A. Lee, testified that pursuant to the agreement, the Town of Moody commenced rendering fire and police protection in the area, although other testimony indicated that the City of Leeds continued to assist and augment Moody's limited resources.[1] The testimony of witnesses for both parties relating to the respective quality of police and fire protection, both before and after the alleged relinquishment by the City of Leeds of its police jurisdiction, was in conflict and non-conclusory.
On January 21, 1974, Ordinance 395 was duly enacted by the City of Leeds; four days later the Town of Moody filed its action, and the circuit court thereafter granted a preliminary injunction pending a final hearing on the merits. From the foregoing testimony and other evidentiary material, the trial court found that (1) Ordinance 395 was in "flagrant violation" of the agreement entered into by Mayor Wright and Representative Coshatt, (2) the Town of Moody, although not a landowner of the area in question, did have an interest therein and accordingly standing to challenge Ordinance 395, (3) the land was not "contiguous" to the City of Leeds as a matter of law, and (4) the agreement was a valid contract or, in the alternative, even if it was legally questionable, valuable consideration (Representative Coshatt's executed promise not to introduce the proposed bills) had moved to the City of Leeds thereby rendering it equitably estopped from questioning the validity of the contractual agreement.
*245 Based on these findings, the trial court issued a permanent injunction against the City of Leeds from exercising or attempting to exercise any governmental authority of any nature over any of the land described in Ordinance 395.
There are three methods by which a municipality may annex territory in Alabama: (1) by an act of the legislature; (2) by an election in accordance with Tit. 37, § 135, Code, supra; and (3) by complying with Tit. 37, § 137, (1)-(3), Code, supra. This latter method was the one which the City of Leeds attempted to use in the instant case.
The northern corporate boundary of the City of Leeds and the southern corporate boundary of the Town of Moody lie less than one and one-half miles apart. Thus, the territory between the two municipalities would be within the police jurisdiction of both municipalities according to Tit. 37, § 9, Code, supra.
This court considered the meaning of the term, "police jurisdiction," in the recent cases of State ex rel. City of Birmingham v. City of Tarrant City and State ex rel. City of Birmingham v. City of Fultondale, which were combined for trial and appeal, 294 Ala. 304, 315 So. 2d 583 (1975):
Applying a strict interpretation to the "clear and unambiguous" requirements of Tit. 37, § 137(1), that "such property [must] not lie within the corporate limits or police jurisdiction of any other municipality," the court concluded:
In arguing that the area sought to be annexed by the City of Leeds was not within the "police jurisdiction" of the Town of Moody, appellant relies upon City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936), and Town of Graysville v. Johnson, 33 Ala.App. 479, 34 So. 2d 708 (1948), cert. denied, 250 Ala. 507, 35 So. 2d 339 (1948). In both of these cases the term "police jurisdiction" was within the context of the power to tax, a problem totally unrelated to the annexation dispute sub judice. Likewise, Tit. 37, § 733, relied upon by appellant, which allows a municipality to tax business within its police jurisdiction, applies only to taxation questions.
The trial court erred in permanently enjoining the City of Leeds and all other respondents from exercising or attempting to exercise any governmental authority of any nature over any of the land described in Ordinance 395. While it was appropriate to enjoin the City of Leeds and all the respondents from attempting to exercise any governmental authority through the use of Tit. 37, § 137(1)-(3), they should not be prevented from exercising any other statutory procedure for accomplishing the same result. It is only Tit. 37, § 137(1)(3) which was used as a vehicle for annexation in the instant case, and it is only Tit. 37, § 137(1)-(3) which contains the phrase, "and such property does not lie within the corporate limits or police jurisdiction of any other municipality. . . ."
The agreement between appellants and Roy H. Coshatt should not have been admitted into evidence. The agreement purported to bind the City of Leeds (1) to relinquish its "police jurisdiction" *246 over any territory in St. Clair County which lay outside its existing corporate limits; and (2) to refrain from accepting any petitions in the future for annexation of land in St. Clair County. Municipalities are mere instrumentalities of the state possessing only such powers as may have been delegated to them by the legislature. State ex rel. Britton v. Harris, 259 Ala. 368, 371, 67 So. 2d 26, 28 (1953). The powers which the City of Leeds was purporting to give up are legislative powers delegated to the municipality by the legislature. Neither the mayor nor the council had authority to relinquish these legislative powers. Since a municipality cannot by any provision or terms in a contract delegate or barter away a governmental power, the agreement which purported to do so in the present case was null and void. Mayor v. Birmingham Water Works Co., 139 Ala. 531, 36 So. 614 (1904).
It was error for the trial court to decree that the City of Leeds and all of the other respondents were estopped from questioning the legality of their agreement with Representative Coshatt. The City of Leeds had no authority to enter into the agreement, and a municipality cannot be estopped by doing that which it had no authority or right to do. Board of School Commissioners of Mobile County v. Hudgens, 274 Ala. 647, 651, 151 So. 2d 247, 252 (1963).
Appellee alleges that appellant City of Leeds discontinued exercising police and fire protection in the area in question and thereby waived and relinquished its police jurisdiction over the area. In support of this contention, appellee cites State ex rel. Martin v. City of Gadsden, 216 Ala. 243, 113 So. 6 (1927). In the Martin case this court was concerned with the corporate boundaries of two municipalities, a matter which the legislature has allowed the local citizenry to determine. Tit. 37, § 10, Code, supra. The present case on the other hand deals with "police jurisdiction," a matter separately determined by the legislature and delegated to the municipalities alone. Tit. 37, § 9, Code, supra. Since a municipality cannot barter away a governmental power specifically delegated to it by the legislature, Mayor v. Birmingham Water Works Co., supra, it follows that it also cannot waive or relinquish such power.
The land which was sought to be annexed by the City of Leeds was separated from its corporate limits by an interstate highway. Tit. 37, § 137(1), the statute which was utilized in the attempted annexation, provides only for annexation of "contiguous" land. Appellee correctly cites two Alabama cases in which the court defined "contiguous" as requiring a "touching." While a "touching" is normally a requirement of the word, "contiguous," such is not the case where the physical separation occurs merely because of the interposition of a public highway. Cabler v. Alexander, 111 Or. 257, 271, 224 P. 1076, 1080 (1924).
In White v. City of Decatur, 225 Ala. 646, 144 So. 873 (1932) this court in construing the meaning of the term, "adjoining," in Tit. 37, § 9, the statute on police jurisdiction, stated that:
Thus, it would appear to be conclusive that a public highway is not the type of physical separation which would prevent two pieces of land from being "contiguous" within the meaning of the statute.
The judgment is affirmed insofar as it enjoins the City of Leeds and all the respondents from attempting to exercise any governmental authority through the use of *247 Tit. 37, § 137(1)-(3), over any of the land described in Ordinance 395, which is within the police jurisdiction of the Town of Moody.
The judgment is otherwise reversed and the cause is remanded for entry of judgment in conformity with this opinion.
Affirmed in part, reversed in part, and remanded with directions.
HEFLIN, C.J., and BLOODWORTH, FAULKNER, JONES and SHORES, 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.
[1] At the time of trial the Town of Moody had a police force of two full-time personnel and six part-time personnel; its fire department consisted of fifteen volunteers. This same force serviced the nearby community of White Chapel and was partially funded by a LEPA grant. | September 18, 1975 |
f0abe077-3682-4afa-86e0-b488ed6ebcc9 | Finch v. York | 318 So. 2d 249 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 249 (1975)
Julia A. FINCH, as executrix, etc.
v.
Grace YORK et al.
SC 942.
Supreme Court of Alabama.
August 21, 1975.
*250 James R. Davis, Beavers, Debuys, Davis & Johnson, Birmingham, for appellant.
Conrad M. Fowler, Jr., Columbiana, Peter J. Palughi, Mobile, for appellee-intervenor Doris Numberg.
ALMON, Justice.
Grace York, appellee, plaintiff below, filed her original complaint seeking the sale and division of certain real property situated in Shelby County, Alabama. The property in question had been deeded to appellee and her brother, John Edward Finch, defendant below[1], by their father, Edward F. Finch. The conveyance was transacted in Mobile, Alabama, five years before the father's death and over six years prior to the commencement of this action. Present at the conveyance were Edward F. Finch; George D. Tonsmeire, the elder Finch's attorney; Grace York; and John Edward Finch.
The complaint alleged that prior to the execution of the deed, Mr. Tonsmeire, at the direction of the grantor, secured sworn oral promises from grantees that they would in turn each reconvey by deed onehalf of their respective interests, or an undivided one-quarter interest in the entire parcel, to two other sisters neither of whom were present at the conveyancing. The sister who was alleged to have been the intended beneficiary of defendant's promise to reconvey, Doris Numberg, was allowed to intervene; the other sister, Marion Blythe, was added as a party defendant.
Trial was had without a jury and from the testimony and depositions received into evidence the trial court found that each of the four parties were entitled to an undivided one-quarter interest in the property[2].
Appellant first argues that the holding in Walling v. Couch, 292 Ala. 33, 288 So. 2d 435 (1973), rendered certain evidence received by the trial court of statements made by Edward F. Finch regarding the intended beneficiaries of the conveyance inadmissible under our Dead Man's Statute, Code of Alabama 1940, Recompiled 1958, Tit. 7, § 433. Although the trial court found that there was sufficient evidence to support its ruling independent *251 from that challenged under the Dead Man's Statute, we will address the issue and the field of application of the holding in Walling. In Walling the only evidence which supported the trial court's finding of a constructive trust was that of a husband's testimony concerning conversations with his then deceased wife. In reversing, the court held that the Dead Man's Statute did apply to those who succeed to the rights of a decedent by an inter vivos transaction.
In distinguishing this case from Walling, it is significant to note that here the estate of the deceased under the facts and pleadings cannot be increased or diminished; neither is the deceased's estate a party. In Walling the $10,000.00 was to come from the deceased's estate and the estate was a party defendant. We therefore conclude that the evidence in question is not bared by virtue of the Dead Man's Statute and could have been considered by the trial court as well as here on appeal.
Appellant's next contention is not so readily disposed of. Specifically, parol evidence was introduced over objection which was allegedly at variance with the fee simple deed conveying the property in question from Edward F. Finch to John Edward Finch and Grace York. Our cases are uniform to the effect that in the absence of fraud, a parol condition subsequent cannot be engrafted on a deed conveying a fee simple title. Smith v. Smith, 153 Ala. 504, 45 So. 168 (1907); Nearhos v. City of Mobile, 257 Ala. 161, 57 So. 2d 819 (1952). The gist of appellant's argument then is that the trust, if it existed at all, was established entirely by parol and therefore falls within the operation of the statute of frauds unless and until the proponent has shown such trust to have arisen ex maleficio or under circumstances where equitable relief has been traditionally available as against a fraudulent procurer. Patton v. Beecher, 62 Ala. 579, 591 (1878); Roberts v. Monroe, 261 Ala. 569, 75 So. 2d 492 (1954). Those special circumstances have been found to exist where (1) there is a fiduciary relationship or special trust between the parties coupled with a breach of such fiduciary duty(s) or trust, Putnam v. Putnam, 274 Ala. 472, 150 So. 2d 209 (1963) (breach of duties owed between husband and wife); Knowles v. Canant, 255 Ala. 331, 51 So. 2d 355 (1951) (breach of duties owed by son-in-law handling transaction to mother-in-law); or (2) undue influence, Strickland v. Strickland, 206 Ala. 452, 90 So. 345 (1921); Cox v. Parker, 212 Ala. 35, 101 So. 657 (1924).
We agree that appellant has accurately stated the law recognized in this Stateviz., the statute of fraud bars the introduction of parol agreements at variance with express deeds, Brindley v. Brindley, 197 Ala. 221, 72 So. 497 (1916), unless there is an averment that the breach of the parol agreement constitutes fraud. Dean v. Roberts, 182 Ala. 221, 62 So. 44 (1912). This rule has been codified in Tit. 47, § 149:
Therefore, in order to resolve the question of whether this parol trust was within the operation of the statute of frauds, we must necessarily review the evidence before the trial court tending to establish fraud on the part of John Edward Finch. This we have done and in the process noted ample evidence, a substantial portion of which was taken ore tenus, that (1) Edward F. Finch had repeatedly expressed his intention to divide the property between the four children now involved in this litigation, that (2) immediately prior *252 to the execution of the deed a sworn promise was secured from John Edward Finch and Grace York that they would reconvey, that (3) neither of the grantees made any objections to so reconvey, and that (4) immediately thereafter John Edward Finch told Grace York that he had no intention of carrying out his promise. From this we hold that there was a permissible inference that the grantor desired that the conveyance be expressly contingent upon subsequent reconveyance on the part of the grantees and that John Edward Finch never intended to fulfill his promise.
In holding that such conduct was tantamount to fraud and thereby affirming the finding of a constructive trust by the trial court, we are not unmindful of prior decisions which in effect have held that violation of a parol trust agreement or its subsequent repudiation is not of itself that character of fraud which will suffice to sustain a constructive trust. Pierce v. Murphee, 274 Ala. 20, 145 So. 2d 207 (1962); Talley v. Talley, 248 Ala. 84, 26 So. 2d 586 (1946); Bartlett v. Bartlett, 221 Ala. 578, 130 So. 194 (1930). In each of these cases, however, it was expressly found that no fraud existed contemporaneously with the challenged transaction.
Had we viewed the alleged promise of appellant to reconvey as simply a contractual obligation to hold one-half of his share in express trust, then, as previously noted, such promise would be inoperative under the statute of frauds. But where, as here, there is evidence of a fraudulent intent to repudiate an express promise (such promise being the inducement for the conveyance itself), the statute of frauds becomes immaterial as the fraud vitiates the entire transaction. Doswell v. Hughen, 266 Ala. 87, 94 So. 2d 377 (1957); Smith v. Smith, 153 Ala. 504, 45 So. 168 (1907); Manning v. Pippen, 86 Ala. 357, 5 So. 572 (1888).
In affirming the decision of the trial court we hasten to note that there was considerable evidence also introduced which would have supported a contrary result. Specifically, that the true intention of the father was to vest title to the property in the recited grantees so that they could in turn sell a portion thereof and use the proceeds to discharge a long-standing lien on the entire parcel thereby eliminating the threat of foreclosure. Moreover, Mr. Tonsmeire deposed that he had no recollection of taking any sworn promise from either of the grantees at the time of the conveyance. Because of the equitable nature of this form of relief, however, we have not in the past nor have we attempted here to impose any unyielding formula as to those factual circumstances which will or will not support a constructive trust. Cherpes v. Cherpes, 279 Ala. 346, 185 So. 2d 137 (1966). Rather, inasmuch as the constructive trust is a creature of equity, every presumption is indulged in favor of the findings of the trial court and will not be disturbed unless palpably wrong. Sims v. Reinhart, 285 Ala. 658, 660-61, 235 So. 2d 802 (1970).
Affirmed.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.
[1] During the pendency of this appeal, appellant died. We granted the motion of Julia A. Finch, executrix and personal representative of his estate, to revive the action in the name of appellant's estate.
[2] The matter of sale of the property was set for trial; that evidentiary hearing never transpired as appeal to this court was taken immediately. | August 21, 1975 |
b609e4d7-49f4-4f8a-8b8b-15943e3b5d9e | Green v. Hospital Building Auth. of City of Bessemer | 318 So. 2d 701 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 701 (1975)
Annie Mae GREEN
v.
The HOSPITAL BUILDING AUTHORITY OF the CITY OF BESSEMER, a Public Corporation.
SC 733.
Supreme Court of Alabama.
August 21, 1975.
*702 James R. Shaw, Bessemer, for appellant.
White E. Gibson, Jr., Birmingham, for appellee.
ALMON, Justice.[*]
This is an action for personal injuries sustained by appellant, plaintiff below, while she was a non-indigent patient in appellee city hospital. According to appellant's deposition, an attendant nurse employed by the hospital had closed a door on which appellant had been supporting herself with one hand. Appellant's left ring finger was caught between the door and the door frame resulting in a hematoma and a fracture of the distal phalanx.
The parties stipulated that appellee was, at the time of the alleged incident, engaged in the operation of a hospital under the authority of Act No. 109, Acts of Alabama 1961, p. 134; as codified, Tit. 22, Ch. 6, Art. 5A, Code of Alabama 1940, Recompiled 1958 (1973 Supp.). Further, it was stipulated that no express promises were made by appellee (nor any of its agents or employees) regarding the reasonableness of the care appellant was to receive while a patient at the hospital.
The complaint in three separate counts alleged respectively, breach of implied contract, simple negligence and wanton misconduct on the part of appellee hospital. Count A of that complaint setting forth appellant's implied contract theory alleged in pertinent part:
Appellee demurred to all three counts and subsequently moved for summary judgment under ARCP 56. The trial court relying on the holding in Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So. 2d 328 (1971), granted appellee's motion for summary judgment.[1]
The question is whether the allegations set out in Count A of the complaint, along with the stipulation and deposition of appellant, made out a cause of action sufficient to resist appellee's motion for summary judgment. More specifically, whether a suit can be maintained, ex contractu, for breach of an implied promise to use reasonable care in furnishing all special facilities and nursing services by a hospital otherwise statutorily immunized from tort liability.[2]
The question of where the demarcation between causes of action sounding in tort and those sounding in contract falls, is by no means a novel one in this State nor amendable to any ready test. See Western Union Telegraph Co. v. Littleton, 169 Ala. 99, 53 So. 97 (1910). The touchstone is said to be found in Wilkinson v. Moseley, 18 Ala. 288 (1850):
We view the narrow question here presented to be whether the law will imply a promise on the part of a hospital to use reasonable care in treating a patient in the absence of an express contract to that effect.
Clearly, an action for negligence would be maintainable under these facts in the absence of statutory immunity. The election of remedies between an action ex delicto and ex contractu is permissible where the duties imposed by each (contract-tort) overlap. When a given act is both a breach of a contractual duty (expressed or implied) and a duty imposed by tort law, the plaintiff has the opportunity of electing his remedy. There are many instances in our law where these separate duties are concomitant. It is not the character of the act constituting the breach which necessarily determines the remedy; it is rather the character or nature of the duty or duties breached which determines the remedy or remedies available.
It is perhaps unfortunate that the court has on occasion used the misfeasance-nonfeasance *704 concept to distinguish whether a contract or tort action would lie. The mode of breach is not so important as the duty breached. It is possible for both a contractual duty and a tort duty to be breached by misfeasance as well as nonfeasance. Certainly, the tort duty to act prudently can be breached by both an act or a failure to act (commission-omission), and the same is true with regard to a contractual duty. For example, in the present case if the hospital had expressly agreed to use reasonable care in the treatment of appellant, no one would have even bothered to attach any significance to whether the breach was one of misfeasance or nonfeasance, for the result would have been the same.
There are two kinds of implied contractsthose implied in fact and those implied in law. Contracts implied in law are more properly described as quasi or constructive contracts where the law fictitiously supplies the promise to prevent a manifest injustice or unjust enrichment, etc.
It is conceivable that an action based on a contract implied in fact could be maintainable against a city hospital. This would depend upon the particular facts of a given case and the circumstances surrounding the hospital-patient relationship. The matter of contracts implied in fact, however, is not now before us. While some of the language in our decisions on the subject of contracts implied in law is not always uniform, the result of those decisions are to the effect that the law will not imply a promise on the part of a hospital to use due care. Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So. 2d 852 (1966); Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So. 2d 524 (1953).
We think the wiser course is to refrain from distrubing the well established line of cases which have refused to imply a promise where none actually exists.
The difficulty has arisen where the plaintiff, foreseeing some impediment to recovering in tort (shortened statute of limitations, lack of evidence demonstrating negligence, inability to secure expert testimony, or, as here, statutory immunity) attempts to plead himself within the language of Vines v. Crescent Transit Co., 264 Ala. 114, 85 So. 2d 436 (1956), but fails to aver any specific terms of the contract allegedly breached. In other words, the complaint simply alleges that out of the hospital-patient relationship there arises an implied contract that the hospital not negligently allow its patient to be injured. This was the nature of the complaint presented in Garig, supra, where the Court held:
The barrier to recovery here is not due to the fact that our contract law is wanting in this respect, but rather to the statutory immunity of appellee. In other words, the culprit so far as the appellant is concerned is immunity. This Court in Jackson v. City of Florence, S.C. 934, July 10, 1975, approached the problem head-on by overruling those cases which had in effect judicially imposed the immunity doctrine.
An equally compelling reason for holding as we do is that when the Legislature employed the term ex delicto; this term, as used in that context, had a definite meaning. "Ex delicto" had been judicially defined so far as we are here concerned and could be construed as a term of art. If we were to now give it a different meaning the result would be to totally frustrate legislative intent.
What we are saying is simply this; the law will not impose upon a hospital an implied *705 contractual duty to keep its patients free from any and all negligent injuries.
We are therefore of the opinion that the trial court properly entered summary judgment for the appellee.
Affirmed.
MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES and SHORES, JJ., concur.
EMBRY, J., with whom HEFLIN, C. J., concurs, dissents.
EMBRY, Justice (dissenting):
I respectfully dissent. The opinion of my brother Almon is capsulated in the sentence therein:
In support, principle reliance is placed on Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So. 2d 852 (1966) and authorities discussed therein. The error of such reliance is found in the very next sentence following the above quote:
However, a perusal of Garig shows that there this court was considering whether there was such an implied promise in the contract:
Garig did not give sufficient consideration to quasi or constructive contracts. In the case of quasi contract the duty imposed by law implies the contract. Thus, by its decision today, the majority leaps from the holding of Garig that its facts would not support a finding of a duty under the contract to a broad and general holding that a hospital is under no duty to use due care under an implied contract. Under a quasi or constructive contract, the terms of which are imposed (implied) by law it has that duty.
My views concerning use of quasi contract as a theory upon which to base an action ex contractu have recently been expressed in Lorence v. Hospital Board of Morgan County, Ala., 320 So. 2d 631, 1975. This is a duty implied apart from the express contract between patient and hospital, or from one implied in fact based on the conduct of the parties (actual or tacit consent). The breach of such a duty is capable of remedy by an action ex contractu. Historically the action would be in assumpsit for restitution in order to make reparation to one for loss or injury previously inflicted.
The breach of duty imposed by law may be tortious or a tortious breach of contract; express, implied by law or implied in fact, either of which is subject to proof. The remedy is at the election of the party complaining of the wrong which resulted in injury. Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459 (1952); Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923). The following from Am.Jur.2d is the most clear expression of the differences between express contracts, implied contracts and quasi or constructive contracts:
One further observation. Under our system of pleading, failure to allege the specific terms of a contract implied (imposed) by law (quasi or constructive contract) can have no effect on the substantive law which, in my view, defines the legal duties imposed upon the Hospital Building Authority. Those duties are of a contractual nature. For breach of these duties in this case plaintiff has a remedy ex contractu. The defined legal duties (contract terms) are to use due care in and about providing the lodging, food, nursing, treatment, care, medications, supplies and other services (including attendance from one place to another in the hospital) incident to hospitalization in skillfully operated hospitals.
HEFLIN, C. J., concurs.
[*] This case was originally assigned to a justice formerly on this Court and later reassigned to the writer.
[1] Although the complaint was filed on March 27, 1972, before the effective date of the ARCP, the order granting summary judgment was entered after the effective date. Implicit in the trial court's dispositional ruling, was a finding that application of the new rules worked no injustice on the litigants. ARCP Rule 86. Appellant has made no allegations to the contrary either to the trial court below or here on appeal.
[2] Being a municipal hospital statutorily organized as a public corporation for the purpose of providing public hospital facilities for lease to and use by a municipality, appellee is subject to suit, "by others in any form of litigation other than an action ex delicto." (Emphasis ours). Tit. 22, § 204(41h) (1973 Supp.). Appellant has made no challenge, constitutional or otherwise, upon such immunity. | August 21, 1975 |
9542334a-44ff-4dfd-bdb4-c913a2ac43f7 | General Mutual Insurance Company v. Gilmore | 319 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 675 (1975)
GENERAL MUTUAL INSURANCE COMPANY, a corporation
v.
Eunice Marie GILMORE, as Executrix of the Estate of Benjamin Frank Gilmore, Deceased.
SC 1086.
Supreme Court of Alabama.
September 11, 1975.
Rehearing Denied October 2, 1975.
Camp, Page, Williams & Spurrier, and Danny D. Henderson, Huntsville, for appellant.
Martinson & Beason, Huntsville, for appellee.
JONES, Justice.
By this appeal the issue of "stacking" or "pyramiding" of coverage under the uninsured motorist provisions of an automobile liability insurance policy is again presented for this Court's review.
We agree with the trial Court's ruling granting the plaintiff's motion for summary judgment which has the effect of allowing "stacking." We therefore affirm.
The facts are not disputed. On December 10, 1970, Benjamin Frank Gilmore was killed in a collision with an uninsured motorist, Percy Lee Griffin. Eunice Marie Gilmore, as executrix of her deceased husband's estate, filed a wrongful death action in the Madison County Circuit Court and *676 obtained an unsatisfied judgment in the sum of $125,000 against Griffin. At the time of the collision, Gilmore, while employed by Leonard Askew, doing business as Askew Office Machine Company, was driving an automobile owned by Leonard Askew. In effect on the date of the accident was a General Liability/Automobile Policy issued by General Mutual Insurance Company to Leonard Askew, doing business as Askew Office Machine Company. The policy contained uninsured motorist protection and seven separate premiums had been paid on seven listed vehicles, including the one driven by Gilmore.
Because the uninsured motorist coverage specified limits of $10,000 per person per vehicle, the intestate's personal representative sought to "stack" coverage for each of the other six vehicles and brought an action against General Mutual for $70,000. General Mutual responded, asserting that its liability was limited to $10,000 by virtue of the policy's "Limits Of Liability" clause which is found under the uninsured motorist's provision:
We have consistently held that "Other Insurance" and the "Limits Of Liability" clauses are ineffective to prevent "stacking," being in derogation of the Alabama Uninsured Motorist statute, Tit. 36, § 74(62a), Code.[1] In each of these cases (except in Cahoon where the "stacking" involved workmen's compensation coverage), the plaintiff was the named insured or an insured by virtue of being the spouse or relative of the named insured living in the same household.
General Mutual does not contest these prior holdings, but rather it seeks to raise an issue of "first impression": whether "stacking" is available to an injured plaintiff who is an insured by virtue of his occupancy of the vehicle involved in the accident. Contending that the "insured by virtue of occupancy" issue is before us, thereby limiting its liability to $10,000, General Mutual directs our attention to the following uninsured motorist provision of the policy:
"Persons Insured.
(b) any other person while occupying an insured highway vehicle;"
We have strained at the record in an effort to accommodate our review and holding to the issue sought to be raised. A look at the record, however, will disclose our dilemma. Other than the pleadings the complaint and counter-motions for summary judgmentthe only factual presentation is contained in a "Stipulation", which provides in part:
A six-page policy of insurance is attached as "Exhibit `1' To Stipulation"; and, while the stipulation states that it is "a true and correct copy", it is obviously an incomplete contract of insurance. The first page of the policydenominated "General Liability/Automobile Policy Declarations"in addition to showing the named insured and the limits of liability for the coverage afforded, shows that "Comprehensive Automobile Liability Insurance", "Comprehensive General Liability Insurance", "Automobile Medical payments Insurance", "Premises Medical Payments Insurance", and "Protection Against Uninsured Motorist Insurance" appear on pp. "3b", "3c", "3d", "3e", and "3f" respectively. Only page "3f""Protection Against Uninsured Motorist Insurance"is made a part of the Exhibit. The remaining four pages are composed of "Definitions", "Supplementary Payments", and "Conditions". Conspicuously absent, inter alia, are the insuring clauses, as well as language indicating whether persons other than the named insured operating the insured vehicle with the owner's (or named insured's) permission are within the definition of "insured". This latter deficiency, however, is supplied by the stipulation, "Gilmore . . . was an insured . . . in that he was an employee of Leonard Askew."
We hasten to observe at this point that there is little, if any, probability that this portion of the stipulation was the result of oversight or inadvertence. Automobile liability insurance policies issued in this state traditionally contain the standard omnibus clause which includes, within the definition of "insured", persons driving the insured vehicle with the permission of the named insured. Thus, the stipulation merely accords credence to this standard language within the factual context of the case at bar.
At any rate, given the fact that Gilmore is an insured "in that he was an employee" of the named insured, the validity vel non of General Mutual's contention that the distinction between the various classes of omnibus insureds requires different results as to "stacking" is not before us. Judicial restraint requires that we await the appropriate case to address the issue whether "stacking" is permissible where the injured plaintiff is an insured by virtue of his occupancy of the insured vehicle.[2]
In view of General Mutual's implicit concession of lack of merit of this appeal absent the issue sought to be presented, we will not prolong our discussion by any in depth analysis of our "stacking" cases or their analogy to the instant case. Suffice it to say that the rationale of State Farm *678 Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974), though itself not a "stacking" case, refused to recognize a distinction for purposes of scope of coverage between the named insured and those otherwise included within the statutory term "persons insured thereunder."
Given the Reaves conclusion that the scope of coverage as to all classifications of insureds is identical and equal, the following language from Edge is controlling:
Professor Widiss, the acknowledged authority in this field, writing in 67 Nw. U.L.R. 497 (1967), observed that such restrictive clauses (Other Insurance and Limits of Liability clauses) are generally construed "to extend protection to persons that the purchaser would probably have acquired protection for if he were in a position to specify the individuals for whom he desired coverage. In other words, an insurance company will not be allowed to provide an insurance policy which denies protection to such persons unless it is clear that the purchaser understood he was acquiring such limited protection."
Gilmore was an employee of the named insured and, as the regularly assigned driver of the business vehicle, was the individual most likely to be in an accident involving such insured vehicle. The policy issued to Leonard Askew, doing business as Askew Office Machine Company, was obviously intended to cover business operations which required the use of automobiles by employees, including Gilmore, in its day to day operation; and such employees thus assumed the position of third party beneficiaries to the insurance contract and were entitled to its full benefits. Harris v. Board of Water and Sewer Commissioners of the City of Mobile, 294 Ala. 606, 320 So. 2d 624 (1975); Kingsberry Homes Corporation v. Ralston, 285 Ala. 600, 235 So. 2d 371 (1970); Mutual Benefit Health & Accident Association of Omaha v. Bullard, 270 Ala. 558, 120 So. 2d 714 (1960).
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur in the result.
[1] Great Central Insurance Company v. Edge, 292 Ala. 613, 298 So. 2d 607 (1974); Phoenix Insurance Company v. Stuart, 289 Ala. 657, 270 So. 2d 792 (1972); Employers Liability Assurance Corp., Ltd. v. Jackson, 289 Ala. 673, 270 So. 2d 806 (1972); State Farm Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So. 2d 619 (1971); Hogan v. Allstate Insurance Co., 287 Ala. 696, 255 So. 2d 35 (1971); Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So. 2d 736 (1970); See also State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974).
[2] For two cases, one on either side of this issue, see Blocker v. Aetna Casualty and Surety Company, 232 Pa.Super. Ill, 332 A.2d 476 (1975) and Cunningham v. Insurance Company of North America, 213 Va. 72, 189 S.E.2d 832 (1972).
[3] It is to be borne in mind that the term "insured", as used in Reaves and Edge, refers to that classification of insureds contemplated by the statutory term "persons insured thereunder", which is referable, in turn, to the general liability coverage. It is not a reference to an insured under subdivision (b) of the uninsured motorist provision's definition of "Persons Insured", i.e., "any other person while occupying an insured highway vehicle." | September 11, 1975 |
edb977f3-a1f6-4076-929a-a6c0f03c3c9c | Butler v. State | 316 So. 2d 355 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 355 (1975)
In re Bernard Ino BUTLER
v.
STATE.
Ex parte Bernard Ino Butler.
SC 1355.
Supreme Court of Alabama.
July 31, 1975.
William J. Fuller, Jr., Montgomery, for petitioner.
None for the State.
JONES, Justice.
Petition of Bernard Ino Butler for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Butler v. State, 55 Ala.App. 421, 316 So. 2d 348.
Writ denied.
HEFLIN, C.J., and MERRILL, MADDOX and SHORES, JJ., concur. | July 31, 1975 |
2bd23704-a0c2-4861-acc9-a910e263e12e | General Corp. v. State Ex Rel. Sweeton | 320 So. 2d 668 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 668 (1975)
GENERAL CORPORATION, a corporation,
v.
STATE of Alabama ex rel. Eugene SWEETON, Chief of Police, City of Huntsville, Alabama.
SC 521.
Supreme Court of Alabama.
September 18, 1975.
*671 Frierson M. Graves, Jr., Memphis, Tenn., for appellant.
Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
ALMON, Justice.[*]
The question presented by this appeal is whether the Alabama Red Light Abatement Act, Tit. 7, § 1091 et seq., Code of Alabama 1940, Recompiled 1958, can be constitutionally applied to the exhibition of obscene motion pictures. More specifically, whether the showing of obscene motion pictures constitutes a public nuisance, the sanction for which is the padlocking of the premises for up to one year.
The complaint filed January 16, 1973, alleged that for a period in excess of nineteen months, appellant had consistently shown obscene films at the Fox Cinema Theatre and that the showing of certain of these films constituted a violation of both the nuisance and obscenity laws of the State of Alabama. The complaint prayed for issuance of a preliminary injunction after notice and hearing, and that after a final hearing on the issue of obscenity, appellant, General Corporation, be perpetually enjoined from maintaining said nuisance.
The pretrial order, issued on February 13, 1973, set out the contentions of the respective parties including a stipulation that the Fox Cinema Theatre was an enclosed adult movie house. A supplemental pretrial order was issued on February 22, 1973, stipulating that the issues in controversy were, whether the conduct of appellant constituted "lewdness" under Tit. 7, § 1091, Code, supra.
On February 23, 1973, the final decree of the trial court was entered. Specifically, the trial judge found that appellant had engaged in showing obscene movies at the Fox Cinema Theatre and that such activity constituted a public nuisance. Pursuant to that finding, the court decreed that appellant be perpetually enjoined from maintaining said nuisance at the Fox Cinema Theatre or elsewhere in the county; that all personal property contained in the theatre be removed and sold in the manner provided for the sale of chattels under execution; that the theatre be closed for all purposes for one year unless sooner released under the provisions of Tit. 7, § 1104, Code, supra; and that the proceeds of the sale be applied to the costs. A writ of injunction was issued embodying the terms of the final decree.
On March 23, 1973, the court amended its final decree specifically limiting its operation to obscene matter, but leaving undisturbed the provision closing the theatre for one year.
The evidence showed that appellant was engaged in the operation for profit of the Fox Cinema Theatre, situated in Huntsville, Alabama. During the period of December 20, 1972, through January 10, 1973, inclusive, Mr. Ron Curlee, a detective employed by the Huntsville Police Department, *672 visited the Fox Cinema Theatre on several occasions. During these visits Mr. Curlee took numerous sequential photographs and recorded contemporaneous audio tapes of the films which were being exhibited at the theatre. These motion picture films were entitled: "The Making of the Blue Movie," "I am Sandra," "Mary Jane," "The Gun Runners," "The Executive Wives," and "The Mermaids." At trial Mr. Curlee, referring to the notes and pictures he had taken while at the theatre, testified as to the subject matter content of each of the foregoing films. That testimony tended to show that said films depicted, inter alia, sexual intercourse, fellatio, cunnilingus, group sex, lesbianism, auto-eroticism, fettishism, voyeurism, and sado masochistic sexual activities.
The State's contention below was that the movies exhibited at the Fox constituted a public nuisance in that they were "obscene," and that under the provisions of Tit. 7, § 1091, et seq. (the Alabama Red Light Abatement Act) the operation of the theatre was subject to abatement. Appellant's position was that this Act was not intended to apply to motion picture films or, in the alternative, if the legislature did so intend, such application is unconstitutional.
Any doubts that patently obscene expression falls outside the protection of the First Amendment and therefore enjoys no immunity from state regulations have long been laid to rest. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); United States v. Reidel, 402 U.S. 351, 91 S. Ct. 1410, 28 L. Ed. 2d 813 (1971); Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). "The primary requirements of decency may be enforced against obscene publications." Near v. State of Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). More recently the United States Supreme Court has reaffirmed the principle that the states have a legitimate interest in regulating the use of obscene material; and, more specifically, that local regulations dealing with such material will not be disturbed or struck down so long as they comport with specific constitutional mandates. Paris Adult Theatre v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).
However, due to the elevated status ascribed to First Amendment guarantees, procedures adopted by states for dealing with obscene expression have been the subject of close judicial scrutiny. Marcus v. Property Search Warrant, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961). The line between expression unconditionally guaranteed and that which may be legitimately regulated is finely drawn. Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958).
Although motion pictures are a form of expression and within the shield of the First Amendment, United States v. A Motion Picture Film, 404 F.2d 196 (2d Cir. 1968), they are not necessarily subject to the same rules governing other modes of expression. Burstyn v. Wilson, 343 U.S. 495, 72 S. Ct. 777, 96 L. Ed. 1098 (1951). Because of the singularly unique nature of the medium, a motion picture may be denominated obscene and thereby exceed the protective bounds of the First Amendment long before a written description of the same subject matter. Landau v. Fording, 245 Cal. App. 2d 820, 54 Cal. Rptr. 177, aff'd 388 U.S. 456, 87 S. Ct. 2109, 18 L. Ed. 2d 1317 (1966); People v. Bloss, 18 Mich. App. 410, 171 N.W.2d 455 (1969). Moreover, the United States Supreme Court has expressly rejected constitutional immunity from state regulation for obscene films simply because their exhibition is limited to consenting adults. Paris Adult Theatre v. Slaton, supra.
So, although the regulation of obscene expression is unquestionably a legitimate matter for state control, it does not necessarily follow that the doctrine of public nuisance can be constitutionally applied to obscenity. Traditionally, continuing *673 activity contrary to public morals or decency have constituted public nuisances. Price v. State, 96 Ala. 1, 11 So. 128 (1891); Ridge v. State, 206 Ala. 349, 89 So. 742 (1921); Hayden v. Tucker, 37 Mo. 214 (1866); Federal Amusement Co. v. State, ex rel. Tuppen, 159 Fla. 495, 32 So. 2d 1 (1947); Abbott v. State, 163 Tenn. 384, 43 S.W.2d 211 (1931); Perkins on Criminal Law, p. 395 (Foundation Press, 1969); Wood, Law of Nuisances, § 68, p. 87, vol. 1 (3d ed., 1893); 66 C.J.S. Nuisance § 18 d, p. 766. Under the police power, a court of equity with proper legislative authorization can assume jurisdiction to abate a nuisance notwithstanding the fact that the maintenance of that nuisance may also be a violation of the criminal law. Ridge v. State, supra; Evans Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971), cert. denied 404 U.S. 950, 92 S. Ct. 281, 30 L. Ed. 2d 267 (1971).
However, where First Amendment rights are involved, there was been no such unanimity of authority for a multitude of reasons, the more salient of which warrant separate consideration.
At the outset we note three requirements imposed by the First Amendment upon any statute which attempts to regulate obscene material: (1) the burden of proving obscenity must always rest with the State; (2) administrative action determining matter to be obscene must not have an air of finalitythere must be provision for prompt, judicial review; (3) where prior restraint exists, there must be an immediate final determination on the issue of obscenity. Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971); United Artists Corporation v. Wright, 368 F. Supp. 1034 (N.D.Ala.1974); Gulf States Theatres of Louisiana v. Richardson, 287 So. 2d 480 (La.Sup.Ct.1974); New Rivieria Arts Theatre v. State, 412 S.W.2d 890 (Tenn.Sup.Ct.1967).
In terms of burden of proof, traditional public nuisance doctrine vis-a-vis obscenity poses a twofold dilemma; (1) what is the burden of proof, and (2) upon whom does the burden fall. Regarding the former, there is a dichotomy in the social ills against which obscenity law and public nuisance law are directed. The definitional test for obscenity attempts to separate those materials protected by the guaranties of freedom of expression; the aim of a nuisance action, on the other hand, is not the suppression of a particular form of expression, rather the abatement of a condition which works harm upon a substantial number of the public or which injuriously affects public safety, health, or morals. City of Selma v. Jones, 202 Ala. 82, 79 So. 476 (1918).
In Grove Press, Inc. v. City of Philadelphia, 418 F.2d 82 (3d Cir. 1969) it was held that nuisance doctrine was too elastic and amorphous to constitutionally restrict First Amendment rights. The court concluded that public nuisance doctrine could not be used both to define the standards of protected speech and to serve as a vehicle for its restraint. Accord, State ex rel. Murphy v. Morley, 63 N.M. 267, 317 P.2d 317 (1957); Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968).
Tit. 7, § 1091, Code, supra, defines as a nuisance any place where ". . . lewdness, assignation, or prostitution is conducted, permitted, continued, or exists;. . ." (Emphasis ours). By contrast, this language is discernibly "amorphous" when compared with Tit. 14, § 374(16j) (1971 Supp.) which defines obscenity and related terms with specificity and incorporates the three-prong test for "hard-core pornography" of Roth v. United States, supra. The final decree of the trial court, however, demonstrates that in finding the films "obscene", the trial judge used the Roth Standard incorporated in the above statute.
Since the final decree in this cause, the U.S. Supreme Court decided Miller, supra. We consider under the *674 facts of this case that the Roth test embodied in our statute was more stringent than the subsequent Miller doctrine. Therefore, appellant can hardly complain that the Miller standards have worked to its detriment. Moreover, we are here dealing with a civil remedial statute with ample due process safeguards and since we are in the civil realm we need not be quite so conscious of the strictures attendant in criminal prosecution. We believe that the reasoning in Pierce v. State, 292 Ala. 473, 296 So. 2d 218 (1974), applies with equal force here; specifically, that definitional infirmities in the Alabama Red Light Abatement Act were cured by judicial construction. Accord, State ex rel. Ewing v. "Without a Stitch", 37 Ohio St.2d 95, 307 N.E.2d 911 (1974); Gordon v. Christenson, 317 F. Supp. 146 (D.Utah 1970); Grove Press Inc. v. Evans, 306 F. Supp. 1084 (E.D.Va.1969).
Appellant argues in the alternative that notwithstanding curative judicial construction, the legislature did not intend the Alabama Red Light Abatement Act to be applicable. There is a substantial amount of persuasive authority for this proposition from judicial interpretation in sister states of their respective Red Light Abatement Acts strikingly comparable to our own. In People v. Goldman, 7 Ill.App.3d 253, 287 N.E.2d 177 (1972), it was held that, as used in its statute, "lewdness" was a synonym for prostitution and therefore the Act did not apply to the activity there sought to be enjoined (a "pornoshop"). Similarly, in Gulf States Theatres of Louisiana v. Richardson, supra, the Louisiana Supreme Court reasoned that its public nuisance statute passed in 1918, only one year prior to our own, was originally designed to control prostitution and gambling and therefore could not be used in the First Amendment area. The court also emphasized the fact that the statute contained virtually no standards for making judicial determinations of obscenity. Accord, Southland Theatre, Inc. v. State ex rel. Tucker, 495 S.W.2d 148 (Ark.Sup.Ct. 1973); Harmer v. Tonlyn Productions, Inc., 23 Cal. App. 3d 941, 100 Cal. Rptr. 576 (1972).
However, from the broad language of Tit. 7, § 1091, Code, supra, there is no indication of any legislative intent to either include or exclude its application to obscene material. Controlling here is the fact that the Alabama Red Light Abatement Act has been construed as being merely declaratory of the common law, Duncan v. City of Tuscaloosa, 257 Ala. 574, 60 So. 2d 438 (1952), and, as previously noted, acts at common law contrary to public morals were considered as public nuisances and subject to abatement as such.
The second aspect regarding burden of proofwhich party upon whom the burden fallsis resolved in favor of the State. The Alabama Red Light Abatement Act contains none of the burden shifting evils present in Near v. State of Minnesota, supra, or Freedman v. State of Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). The transcript clearly shows that the prosecution was called upon and did in fact meet its burden of proof. Neither the Alabama Red Light Abatement Act nor the Alabama Law on Obscenity authorizes any pre-exhibition licensing or permit procedure. The transcript reveals that appellant was not restrained from exhibiting the allegedly obscene films until after a final adversary proceeding on the issue.
The next requirementprompt judicial review of any administrative or executive suppressionis also due to be resolved in favor of the State. As noted, the Act does not allow nor was there in fact any suppression of appellant's activities until after final adjudication on the issue of obscenity. Although the Act does make provision for issuance of a temporary injunction after the filing of the original complaint, Tit. 7, § 1095, Code, supra, a hearing thereon must be had within ten *675 days, ibid. The provision for an ex parte restraining order, Tit. 7, § 1096, is expressly limited to "the moving or in any manner interfering with the personal property and contents of the place where such nuisance is alleged to exist . . . ." and imposes no restraint upon continuing exhibitions of films until trial on the merits.
Although not at issue here, the application of Tit. 7, § 1101, providing for the closing of the premises pending final determination, presents a more troublesome problem which could constitute a pre-adjudicatory suppression of exhibition.
In Teitel Film Corporation v. Cusack, 390 U.S. 139, 88 S. Ct. 754, 19 L. Ed. 2d 966 (1968), the United States Supreme Court struck down for want of prompt judicial review a city licensing ordinance which provided a 50 to 57 day administrative process before judicial review could be had. The Teitel decision, however, dealt with situations where administrative procedures in effect stayed the hand of the judiciary thereby preventing its prompt intervention, supervision, and final determination on the issue of obscenity. See also Jodbar Cinema, Ltd. v. Sedita, 309 F. Supp. 868 (W.D.N.Y.1970); Freedman v. State of Maryland, supra.
Under the Alabama Red Light Abatement Act, however, pre-adjudicatory restraint in the form of a temporary injunction is saved by other mandatory provisions in the Act which insure a speedy final resolution of the ultimate issue of obscenity. Tit. 7, § 1095, requires a hearing on that issue within ten days of the issuance of the temporary injunction; Tit. 7, § 1101, requires that the defendant must be given at least five days notice prior to the hearing on the matter of whether such an injunction will be granted; and Tit. 7, § 1103, requires that final adjudication shall take "precedence over all other cases except injunctions." Furthermore, the United States Supreme Court has held that the right to a speedy determination arises only where one has been ex parte deprived of a right. United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971); Blount v. Rizzi, supra. See also Society to Oppose Pornography, Inc. v. Thevis, 255 So. 2d 876 (La. App.1972).
Turning to the last procedural requirementconstitutional prohibition against prior restraint of allegedly obscene expression without immediate judicial determination, any system for the regulation of obscene expression involving prior restraints comes to the court bearing a heavy presumption against its validity. Bantam Books v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963). The decree of the trial court included an order closing the Fox Theatre for any purpose for one year. This is not a liquor nuisance nor a prostitution nuisance; rather, a movie house charged with showing certain obscene motion pictures. Evidence of obscene conduct in the past does not justify enjoining future conduct which is protected by the First Amendment. People ex rel. Hicks v. Sarong Gals, 27 Cal. App. 3d 46, 103 Cal. Rptr. 414 (1972). The padlocking of appellant's operation for one year constitutes prior restraint at its worst and is patently unconstitutional.
While the facts in the recent United States Supreme Court decision of Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975), are not directly in point, the reasoning therein is particularly appropriate. We quote:
We are not the first jurisdiction to hold unconstitutional as prior restraint of First Amendment guaranties the prospective abatement of movie houses as public nuisances. Society to Oppose Pornography v. Thevis, supra; State of Indiana ex rel. Blee v. Mohney Enterprises et al., Ind., 289 N.E.2d 519 (1972); Gulf States Theatres of Louisiana, Inc. v. Richardson, supra. The Alabama Law on Obscenity, Tit. 14, § 374(1) et seq., provides criminal penalties for conduct such as appellant'sif retributive punishment is sought, those sanctions, not abatement, are the only proper ones authorized by the legislature.
The provision in the Alabama Red Light Abatement Act, Tit. 7, § 1104, supra, allowing for the release on bond is not curative of this constitutional defect. See Society to Oppose Pornography v. Thevis, supra. This remedy is available only if the court is satisfied that the owner had no knowledge of the existence of the nuisance.
We are of the opinion there was ample evidence for the trial judge to conclude that the motion pictures in question are obscene. But we also hold that even if one is guilty of maintaining an obscenity nuisance, it is not constitutionally permissible to deprive him prospectively of his First Amendment rights.
Lest there be any confusion as to the extent of our holding that the Alabama Red Light Abatement Act cannot constitutionally be employed to enjoin prospectively the showing of films in enclosed movie theatres to an adult audience, we hasten to delimit this opinion to at least two First Amendment situations in which that statute so applied might pass constitutional muster.
The first would be where the impact of the injunction is absolutely devoid of prior restraint or chilling effect upon prospective exercises of expression other than that adjudicated as obscene. More specifically, where there has been a prompt adversary proceeding in which all the requisite constitutional standards for ascertaining the issue of obscenity have been met and the particular film has been found to be obscene; future exhibition of that particular film may well constitute a public nuisance and be permanently enjoined as such. See, Evans Theatre Corporation v. Slaton, supra; Coctus Corporation v. State ex rel. Murphy, 14 Ariz.App. 38, 480 P.2d 375 (1971); State ex rel. Keating v. Vixen, 27 Ohio St.2d 278, 272 N.E.2d 137 (1971); contra, Harmes v. Tonlyn Productions, Inc., supra.
The second involves situations where there is a foisting off of patently obscene films, not fit for children to see, in places within their view to include public streets and facilities, residential properties, and private houses. Such activity may also constitute a public nuisance subject to equitable injunction where, of course, attendant constitutional substantive and procedural safeguards are present. See Bloss v. Paris Township, 380 Mich. 466, 157 N.W.2d 260 (1968) (drive-in theatres exhibiting films not fit for minors in plain view of public streets and surrounding residences subject to abatement as a public nuisance). But see the recent case of Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975).
The foregoing possible exceptions should not be construed by prosecuting authorities as a green light for prospective control of particular obscene films or drive-in theatres which broadcast such films. We again point up the imprecise nature of public nuisance doctrine which is ill-equipped to cope with the intricacies of First Amendment guaranties. The law of nuisance cannot become a vehicle for the protection of the sensibilities of the overly *677 fastidious; nor can the doctrine of nuisance serve as a means of circumventing these First Amendment safeguards. The requirements of the First Amendment are stringent and demandingany regulatory scheme which impinges upon these most precious rights will be assured of close scrutiny.
The judgment in this cause is due to be and hereby is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
MERRILL, FAULKNER and EMBRY, JJ., concur.
JONES, J., concurs in the result.
MADDOX, J., concurs specially.
HEFLIN, C.J., with whom BLOODWORTH and SHORES, JJ., join, concurs in the result, with opinion.
MADDOX, Justice (concurring specially).
I agree that the injunction issued here which prohibits the showing of any film for one year is overbroad, but I cannot agree that the trial judge is powerless to act.
The Fox Cinema Theatre had been used consistently to show films which depicted:
Chief Justice Burger, writing for a majority of the court, in Miller, said that the states could regulate illegal conduct such as occurred in this case. One of the regulatory schemes which the Supreme Court, in Miller, said was permissible, includes: "applicable state law, as written or authoritatively construed." Miller gave this Court the power to set the guidelines for regulation of works which depict or describe sexual conduct. It is my opinion, therefore, that a trial judge, using Miller standards, could enjoin the operation of a place as a public nuisance if the place had been used for the purpose of showing films which were obscene, under the Miller test. In view of the authority granted to this court under Miller, I do not think that this Court is so judicially weak, or should be so timid, that it cannot, or will not, "authoritatively construe" our redlight abatement law in such a manner that trial courts could regulate conduct which Miller specifically authorizes states to regulate.
Mr. Chief Justice Burger recognized in Miller that courts would not have an easy road, free from difficulty. He said:
It seems clear to me that state courts have the authority to authoritatively construe state statutes and that this is made imminently clear by an analysis of the Miller opinion. Miller was "vacated and remanded for further proceedings" rather than being outright reversed. I believe that if the Supreme Court was of the opinion that the California statute under consideration in Miller could not be authoritatively construed so as to incorporate the new guidelines, the Miller case would have been reversed outright rather than being remanded for further proceedings.
The key to the Supreme Court's reasoning in this regard seems to be contained in footnote 7 of the case of United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973), handed down the same day as Miller. Footnote 7 in United States v. 12 200-Ft. Reels, reads as follows:
It is significant that in the concluded portions of every opinion handed down concomitantly with Miller, the Supreme Court cites to footnote 7 of 12 200-Ft. Reels wherein the court construed the federal obscenity statutes as incorporating the specific representations and description of hard-core sexual conduct "given as examples in Miller v. California, supra."
The reason why the state court cases were remanded for further proceedings is also disclosed in footnote 7 of 12 200-Ft. Reels. The court noted that while it had the power to authoritatively construe federal statutes, it did not possess the authority with reference to state statutes.
This is the reason why whenever any state court judgment (such as Miller) was vacated and remanded for further proceedings, the Supreme Court specifically referred the state court to footnote 7 of United States v. 12 200-Ft. Reels. I construe these judgments of the Supreme Court of the United States as actually inviting *679 the state courts to authoritatively construe their own state statutes just as the federal statutes were construed by the Supreme Court itself in 12 200-Ft. Reels.
It seemed clear to me that states are free to proceed with obscenity prosecutions under the new Miller standards, so long as the state courts construe and apply state obscenity statutes in a manner consistent with the new Miller guidelines.
The only constitutional problem I see in this case is the prior restraint inherent in the injunctive relief granted, but I believe relief could be tailored which would regulate illegal conduct, protect First Amendment rights, and would permit the operation of the business to show films which were not obscene. In short, the trial judge had voluminous evidence before him that the Fox Cinema Theatre was being used for an illegal activity. Faced with this overwhelming evidence of a pattern and practice of illegal conduct, and having determined the obscenity vel non of the films which were shown there, the trial court could have enjoined the further use of the theatre to show films which were "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."
Under Miller, I believe the trial judge, under authority of Alabama's Red Light Abatement Act could permanently enjoin the use of the theatre for showing obscene films and could require anyone desiring to use the theatre for a legitimate purpose to submit a plan which would show the purpose for which the theatre would be used and the trial court could determine promptly whether the proposed use was for a legitimate purpose, using the Miller standard, of course.
A California court, using a Red Light Abatement Act, permanently enjoined a tavern, its owner and operator and any other person from maintaining, using or occupying the premises for the purpose of "lewdness," closed the premises to all uses for one year except uses not involving entertainment, and ordered the sheriff to remove all fixtures, equipment and musical instruments from the tavern and to close the building for one year. People ex rel. Hicks v. "Sarong Gals," 42 Cal. App. 3d 556, 117 Cal. Rptr. 24 (1974).
The common law of public nuisance may be a valid method by which to implement the state's police power in cases such as this one. In Grove Press Inc. v. City of Philadelphia, 418 F.2d 82 (3 Cir., 1969), the court held that the court procedures chosen by the city there were improper, but the court spelled out how the city could regulate the showing of obscene films. It said:
"The mischief we perceive in the Pennsylvania equity rules is that there is no guarantee a final hearing will be seasonably scheduled after the issuance of a preliminary injunction and that a prompt decision will be forthcoming thereafter. The preliminary restraint could exist days, and even months, before the judicial decision on the merits; where this possibility exists, an unacceptable threat to the freedom of expression without due process of law results. Failure to provide the necessary expeditiousness tinges the Pennsylvania preliminary injunctive procedures with unconstitutional hues when they are employed to restrain or inhibit expression prior to a final adjudication of an alleged obscene matter.
"We do not challenge, we reiterate, the postulate that `the primary requirements of decency may be enforced against obscene publications.' Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957). This means that relief may be sought in both the civil and criminal branches of the Pennsylvania court system to enforce state laws on obscenity, consonant with the Due Process Clause of the Fourteenth Amendment and the guarantee *680 of First Amendment expression. It is only when the right of the state to regulate obscenity collides with undue inhibition of protected expression that a problem of constitutional dimension arises. Where expression is inhibited as a result of prompt judicial decision reached after an adversary proceeding, there can be no procedural due process complaint. But where the inhibition occurs in a preliminary proceeding, with no guarantee of a prompt judicial decision on the merits, the procedure is constitutionally defective because a restraint of presumably protected expression not only occurs but is capable of persisting for an unlimited time prior to the required judicial determination.
"Our conclusion is not novel in Pennsylvania jurisprudence. The same basic determination has already been alluded to by Mr. Justice O'Brien, speaking for an evenly divided state Supreme Court in Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968), where the validity of employing the Pennsylvania equity rules to enjoin obscene exhibitions was also raised. There, the state authorities had secured an ex parte injunction without affording the exhibitors any opportunity to be heard. In ruling such procedures constitutionally defective, Mr. Justice O'Brien observed:
The procedure I suggest, which would require the owner or operator to submit a plan setting out the future course of operation, would constitute some "prior restraint" and "chilling effect," if a prompt decision is made. I believe the test mentioned in Grove Press is met. While the protection against prior restraint is an important right, it is not an absolute one. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1947).
Chief Justice Burger commented, in Miller, on the spectre of repression which the dissenting Justices feared. He wrote:
Consequently, I believe that the trial judge, although following state law, went too far in restraining the use of the theatre for legitimate purposes. This I do not think he could do, but I think he could ensure that if it was used, it would be for legitimate purposes, and not as it had been.
HEFLIN, Chief Justice (concurring in the result):
I concur in the result of the majority opinion in this cause but disagree with the language which attempts to cure the socalled definitional infirmities in the Alabama Red Light Abatement Act by judicial construction.
The majority opinion attempts to make the reasoning in Pierce v. State, 292 Ala. 473, 296 So. 2d 218 (1974), applicable to the Alabama Red Light Abatement Act. In Pierce, this court engrafted by judicial construction the requirements of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) to the 1961 Alabama Obscenity Statute to make it constitutional.
While Miller v. California, supra, substituted a less stringent prosecutorial requirement than the one developed from Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 974, 16 L. Ed. 2d 1 (1966), in regard to literary, artistic, political or scientific values, it also addressed the issue of limiting specificity necessary for criminal obscenity statutes to withstand constitutional attacks on vagueness and overbreadth grounds.
The majority opinion states that the definitional infirmities in the Alabama Red Light Abatement Act are cured by judicial construction. However, I cannot find in the majority opinion any language by which the requirements of Miller are added to the statute in question. I assume that the intent of the majority opinion is to engraft Miller's requirements of limiting specificity to the Alabama Red Light Abatement Act. Even if such language did appear in the majority opinion to accomplish such intent, I would, nevertheless maintain that the court does not have the right to judicially engraft these requirements of limiting specificity to the Alabama Red Light Abatement Act.
The following appears in Miller:
One of the requirements in Miller was that the statutes designed to regulate obscene matters can not be overly broad but must be carefully limited by legislative act *683 or judicial construction. The following language in Pierce reflects this court's treatment of this requirement:
From Miller it was concluded that in the absence of legislative language supplying the necessary limiting specificity, some state statutes could be judicially construed by engrafting to the statute the necessary limiting specificity and thereby pass constitutional muster. In fact, Miller seems to invite judicial construction as a method of supplying the required limiting specificity if such language is absent from the statute. While normally the task of providing limiting specificity to a statute is a legislative function, nevertheless, this court engrafted such limiting specificity to the 1961 Obscenity Statute because of the U.S. Supreme Court's invitation to do so.
Now the majority opinion goes beyond statutes designated to control obscenity and attempts to make the Alabama Red Light Abatement Act a weapon against "hardcore pornography." Obviously, the legislature felt that this act was not an obscenity control statute. This act was passed in 1919 and was on the books when the 1961 Obscenity Act was passed. The 1961 Obscenity Act possesses all of the injunctive relief features which the majority opinion would give to this act. See Title 14, §§ 374(5)-(11), Code of Alabama, 1940, as amended (1958 Recompiled1973 Cumulative Supp.). Further, there is no invitation from the Supreme Court of the United States for judicial construction to supply the necessary limiting specificity to this statute. I interpret Miller as limiting judicial construction engraftments to statutes designed to specifically control obscenity. The act in question is indeed broad and comprehensive in its scopemuch more so than the 1961 Obscenity Statute. In my opinion the majority opinion goes beyond the pale of permissible judicial construction and crosses over into the realm of exclusive legislative drafting by attempting to apply the same reasoning as was applied in Pierce.
Another reason why I cannot concur in the treatment given by the majority opinion involves a consideration of the residual effects that will inure to the Alabama Red Light Abatement Act following such judicial engraftments. Before such engraftments the act in question was a broad, comprehensive act, useful to the State in fighting battles against prostitution, assignation *684 and lewdness. If the majority opinion engrafts the requirements of Miller to this act then this act will have to be construed in the future in a much more narrow and restricted sense and can only be used as a weapon against prostitution, assignation and hard-core pornography. The former broad protective scope given to "lewdness" is considerably reduced by the majority opinion.
As was previously pointed out, the 1961 Obscenity Act provides within its arsenal injunctive relief from obscene materials. This act can be used to enjoin the showing of obscene motion picture films. There is no real reason to transform the Alabama Red Light Abatement Act into an injunctive relief procedure to combat hard-core pornographic films because such a procedure has been available since 1961.
For the reasons set forth above, I respectfully disagree with certain specified aspects of the majority opinion but feel that the result reached by the majority is correct.
BLOODWORTH and SHORES, 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. | September 18, 1975 |
969bf9ed-3bc6-4261-b27c-0f46abce9faa | Wilkerson v. Moore | 318 So. 2d 241 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 241 (1975)
Wilson G. WILKERSON
v.
John L. MOORE, as Judge, etc., et al.
SC 1139.
Supreme Court of Alabama.
August 21, 1975.
Robert S. Edington, Mobile, for appellant.
Daniel G. Sayers, Mobile, for John L. Moore, as Probate Judge and for Ralph W. Havard, as Tax Collector.
Hamilton, Butler, Riddick & Latour and James W. Tarlton, III, Mobile, for heirs of *242 estate of J. T. Trehern and Mrs. Leila Trehern, appellees.
MERRILL, Justice.
This appeal is from an order dismissing the complaint of Wilson G. Wilkerson which sought the re-establishment or restoration of a lost tax certificate issued by the State of Alabama.
The suit was filed against the Probate Judge of Mobile County, the Tax Collector, and the State Commissioner of Revenue as State Land Commissioner.
The suit of the complaint follows. In June, 1966, the State purchased the 26 acres involved at a tax sale, the property being assessed to J. T. Trehern. On July 13, 1967, Wilkerson paid the State Land Commissioner $127.26 and the Commissioner transferred the State's interest in the property to Wilkerson by assignment of the certificate of purchase. Notice of the transfer was placed on the delinquent tax docket for real estate in Mobile County, and on the tax return list for real and personal property. There is no double assessment of the property and all taxes have been paid by Wilkerson.
In 1974, Wilkerson requested the probate judge to issue to him a duplicate tax certificate and a tax deed to the property. The judge declined to issue the deed without a tax certificate and refused to issue a duplicate certificate. The State Land Commissioner also refused to issue a duplicate tax certificate without an order from a court of competent jurisdiction, but he did issue a statement recognizing the fact that "the State transferred its interest in said [J. T. Trehern] property to Wilson G. Wilkerson by assignment of the Certificate of Purchase for the consideration of $127.26." Exhibit B.
The complaint showed that the tax certificate was subsequently lost or destroyed without having been recorded. Wilkerson's wife filed an affidavit which stated in part:
The complaint, verified by Wilkerson, also stated that the certificate had not been further assigned or endorsed by him.
The complaint was filed under the provisions of Tit. 7, § 15 and, in a second aspect, under the general equity jurisdiction of the circuit court. Tit. 7, § 15 reads:
The trial court dismissed the complaint on the ground that the tax certificate was not the record of the state, county or municipality, and that those records still existed, but the tax certificate "is the private property of the petitioner, Wilson G. Wilkerson." Counsel for the probate judge and tax collector support that point in brief on appeal. We cannot agree.
In this instance the certificate, a state record, was issued to Wilkerson. Under the provisions of Tit. 51, § 276, Code 1940, the judge of probate can only execute and deliver a deed "upon the return of the certificate." Unless the purchaser can get a duplicate of the state record, he is effectively cut off from his lawful remedy. The statement from the Commissioner of Revenue establishes that Wilkerson was entitled to the certificate. The documentary proof establishes prima facie that the certificate was lost or destroyed while in Wilkerson's possession and that he had not assigned it to anyone else under Tit. 51, § 270.
This court, in considering tax records that have been lost, stolen or destroyed, said in Wise v. State, 208 Ala. 58, 93 So. 886 (citations omitted):
* * * * * *
* * * * * *
* * * * * *
Later, in Cade v. Walker, 214 Ala. 675, 108 So. 594, this court again stated that "The jurisdiction of courts of equity to establish lost deeds and to require the grantors therein to execute new deeds in their stead seems to be thoroughly well settled."
Counsel for the probate judge and the tax collector recognize these principles but they say as to Cade v. Walker, supra, that it "deals with a lost deed, not a tax certificate"; as to Wise v. State, supra, they remind us "that the property in the case at bar seeking to be restored as the personal property of Mr. Wilkerson, and the records that belong to the state or agency thereof, are still in existence and need not be duplicated."
We have already shown that the tax deed cannot be issued unless the original certificate or a duplicate is presented to the probate judge. Thus, the certificate becomes as important as the deed and, in such a case, we can see no reasonable reason why the certificate, a state record, could not be duplicated under court order as well as the deed. Also, we cannot agree that the tax certificate was any more or less the personal property of the holder than a deed is the personal property of the grantee.
We hold that Wilkerson made out a prima facie case under both Tit. 7, § 15, and the general power of the courts to restore lost or destroyed records under the common law, independently of statute. The judgment of the trial court is reversed and the cause is remanded.
Two more matters require discussion. Many tax certificates are lost before being presented to the probate judge, but probate judges have been following opinions of the Attorney General, the fullest and most adequate of which was written by Assistant Attorney General John Vardaman, later President of the Alabama State Bar Association, in Opinions of the Attorney General, Vol. 30, Jan., Feb., Mar., 1943, at p. 32. He correctly advised a probate judge that "the requirements of Title 51, Section 276, supra, are fulfilled by the presentation of a duplicate certificate of purchase." Other excerpts state:
* * * * * *
Most land sold to the State for taxes is considered to be of little value and the purchaser who has lost his certificate usually is called upon to post a small indemnifying bond. The 26-acre tract here involved was probably in the small value classification when sold in 1966, but the subsequent discovery of oil in that region would greatly increase its value if, in fact, oil were to be found near it. For that reason, a "small indemnifying bond" would probably not be suitable. However, under the facts as here presented, an affidavit by Wilkerson that he had not transferred or assigned the certificate, plus an affidavit by his wife substantially the same as she made in the instant case, filed with the proper authorities, would be sufficient to justify the issuance of the duplicate certificate and the deed.
The other matter concerns the amicus curiae brief of the heirs of J. T. Trehern, who was the record owner of the 26 acres. They asked, and were granted, permission to file such a brief.
The heirs insist that Wilkerson is not entitled to the relief sought in the instant case because the Trehern heirs were not parties to it, but are parties to a suit to quiet title to the tract which was filed in January, 1975, after the decision in the instant case in the Circuit Court of Mobile County. We do not agree.
Our decision here merely gives Wilkerson the right to apply for a duplicate tax certificate if it is established that the original certificate was lost, destroyed or stolen and that he has not transferred or assigned it; and that such duplicate certificate, if ordered issued, could be returned and exchanged for a tax deed under Tit. 51, § 276. No attempt is here made to intimate or suggest who has superior title to the land involved.
Reversed and remanded.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | August 21, 1975 |
e717072e-3d29-4992-a844-399074362b78 | Lowery v. State | 317 So. 2d 372 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 372 (1975)
In re William N. LOWERY
v.
STATE.
Ex parte STATE of Alabama ex rel.
ATTORNEY GENERAL.
SC 1359.
Supreme Court of Alabama.
July 31, 1975.
William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for petitioner.
FAULKNER, Justice.
Petition of THE State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lowery v. State, 55 Ala.App. 514, 317 So. 2d 365.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur. | July 31, 1975 |
ddea24a8-2c70-4fb4-bb00-826fcc44d01e | Winston Industries, Inc. v. Stuyvesant Ins. Co. | 317 So. 2d 500 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 500 (1975)
In re WINSTON INDUSTRIES, INC.
v.
STUYVESANT INSURANCE CO.
Ex parte Winston Industries, Inc.
SC 1388.
Supreme Court of Alabama.
August 21, 1975.
James N. Brown, III, Birmingham, for petitioner.
FAULKNER, Justice.
Petition of Winston Industries, Inc. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Winston Industries, Inc. v. Stuyvesant Insurance Co., 55 Ala.App. 525, 317 So. 2d 493.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | August 21, 1975 |
e3773a47-324a-488f-bfc5-49d4d3f17577 | State Farm Mutual Automobile Ins. Co. v. Anderson | 318 So. 2d 687 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 687 (1975)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation
v.
Martin N. ANDERSON.
SC 1106.
Supreme Court of Alabama.
August 21, 1975.
Rehearing Denied September 11, 1975.
Rives, Peterson, Pettus, Conway & Burge, and Edgar M. Elliott, Birmingham, for appellant.
*688 Sirote, Permutt, Friend & Friedman and William G. West, Jr., Birmingham, for appellee Martin N. Anderson.
William M. Warren, Jr., Birmingham, for appellee The Travelers Ins. Co.
Collins & Johnston, Birmingham, for Alva E. Killian.
MERRILL, Justice.
This appeal is from a decree in a declaratory judgment proceeding in which the trial court held that State Farm Mutual Automobile Insurance Company is liable to defend Dr. Martin N. Anderson in a law suit arising out of a collision of Anderson's Lincoln Continental with another automobile on November 1, 1973.
Dr. Anderson's bill of complaint alleged as a basis for finding that there was coverage the fact that the defendant, with knowledge that the accident had occurred, negotiated and deposited plaintiff's check for a premium admittedly drawn and mailed after the expiration of the policy and received after the loss. Such conduct, it asserted, constituted a waiver of defendant's right to deny coverage.
The answer of defendant State Farm admitted the existence of a policy, that the accident occurred, that plaintiff gave notice of the same to the defendant, that the check was negotiated and deposited after knowledge of the accident and after the expiration of the policy, but denied that the premium was mailed prior to the accident or that it was accepted in payment of a past due premium. It further averred that the check was accepted to reinstitute the lapsed policy as of November 2, 1973, subsequent to the accident.
Most of the facts are not disputed. Dr. Anderson's policy was to expire on October 10, 1973 and he received a premium notice in early September. The gross premium was $112.90, but with a dividend of $6.80, the amount due was $106.10. Dr. Anderson decided not to pay it then because he did not "have any money in the bank." He "presumed" he had a 30-day grace period but the policy did not so provide. A check dated October 29 in the amount of $106.10 was mailed to State Farm. (The date of mailing is in dispute.) The accident occurred in the evening of Thursday, November 1. The envelope containing the check was postmarked November 2nd and received by State Farm on November 3. State Farm had been notified of the accident. On November 7, State Farm negotiated and deposited the check and later in the month sent Dr. Anderson a new policy effective from November 3, and billed him for the $6.80 dividend which had reduced the premium. Premiums are due each six months and they are not paid to the agent but are mailed to the regional office in Birmingham.
Kenneth Dean, a witness for Dr. Anderson and a resident of Snead, Alabama, testified that he was stopped at a red light in Homewood, that Mr. Killian (the plaintiff in the damage suit against Dr. Anderson), was just behind him and the Anderson car hit Killian's, and the Killian car rammed the rear of Dean's car. The next morning, Dean called State Farm and talked with a man named George(he was not sure of the last name) and asked if Dr. Anderson's car was insured and, after some minutes, the man stated that "Dr. Anderson was covered." He said he was told to take it to Jim Skinner Ford and have it fixed. He later called the Roebuck office of State Farm and was again told that Dr. Anderson was covered, to take his car to Jim Skinner Ford and to "rent you a car if you need to." Dean had not sued Anderson because his damages, $10,000.00 personal injuries and $2,000.00 automobile, had been paid under the uninsured motorist provision of his own policy.
Mrs. Anderson, who operates a nursing home with her husband, testified that she signed the check on October 29, and mailed it that afternoon at Five Points South.
*689 George Gomperts testified that he was agency manager for State Farm and had been for 17 years; that he had twelve agents under his supervision, one of whom was Leon Waters, who handled the Anderson policy; that he and Dr. Anderson had been personal friends for more than 10 years; that Dr. Anderson had notified him of the accident on the morning of November 2; and that he had never talked to Kenneth Dean.
The trial court, in its opinion, stated in part:
A motion for a new trial was overruled.
In Mobile Life Insurance Co. v. Pruett, 74 Ala. 487 (1883), it was said:
In Life & Casualty Ins. Co. v. Eubanks, 19 Ala.App. 36, 94 So. 198, the Court of Appeals said:
In Washington Nat. Ins. Co. v. Scott, 231 Ala. 131, 164 So. 303, this court stated:
The above paragraph is quoted with approval in Alabama Farm Bureau Mutual *690 Casualty Ins. Co. v. Hicks, 272 Ala. 574, 133 So. 2d 221. The trial court cited Hicks, and both sides on this appeal argue that Hicks supports their contentions. A majority of this court in Mutual Savings Life Ins. Co. v. Noah, 291 Ala. 444, 282 So. 2d 271, concurred in the following statement:
There is no question here but that the loss was sustained during a defaulting period, and that the check was payment of a past due premium, and that an authorized agent of State Farm was notified of the loss before the check was negotiated and paid after State Farm had learned of the loss.
We cannot agree with the statement in State Farm's brief that "The facts controlling the issues on this appeal are not in dispute." Several inferences and questions arise from the factssome favoring the insurer and some favoring the insured.
The trial court saw and heard the witnesses and it decided a very close question in favor of the insured. In Daugherty v. Gulf Shores Motel, Inc., 292 Ala. 252, 292 So. 2d 454, this court said:
Affirmed.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | August 21, 1975 |
7d995ba2-7a1c-40e3-867b-379a545c213e | Willis v. State Ex Rel. Flynt Oil Company, Inc. | 275 So. 2d 657 | N/A | Alabama | Alabama Supreme Court | 275 So. 2d 657 (1973)
T. J. WILLIS, as Mayor of the Town of Morris, Alabama and the Town of Morris, Alabama, a municipal corporation,
v.
STATE of Alabama, ex rel. FLYNT OIL COMPANY, INC., a corporation.
SC 112.
Supreme Court of Alabama.
February 22, 1973.
Rehearing Denied April 19, 1973.
Rogers, Howard, Redden & Mills, Birmingham, for appellants.
James M. Fullan, Jr., Birmingham, for appellee.
FAULKNER, Justice.
Flynt Oil Company (Flynt) does business as "Posey's Kwik Stop" in Morris, Alabama. Under one roof, with separate entrances, are a gasoline service station, coin-operated washing machine, and cafe facilities. On June 6, 1972, Flynt was issued a retail beer license by the State of Alabama, authorizing sale for off-premise consumption.
As of the relevant dates herein, there was in effect an ordinance of the Town of Morris prohibiting sale of alcoholic beverages, on penalty of $100 fine, jail, or "hard labor not to exceed six (6) months." Consistent with this ordinance, and notwithstanding Flynt's possession of a state license, the Town denied him a municipal license on June 19, 1972.
Flynt petitioned in Circuit Court for a writ of mandamus to compel the Town and its Mayor, T. J. Willis, to issue him a municipal beer license. Following a hearing, relief was granted. Mayor Willis and the Town appeal from the decree of the Circuit Court.
On January 30, 1973, Flynt moved for summary affirmance under Rule 17 of this Court, contending that the appeal had been interposed merely for delay.
Initially, we wish it clear that it is not our function as a court of law to rule on the benefits or drawbacks of alcohol as a beverage for human consumption, or whether prohibition thereof is sound or unsound public policy. That decision is in the province of the competent legislative authorities, and has already been made by them. Given the existing state of the law, a municipality may not prohibit sale of beer where such sale has been licensed by the State of Alabama. Campbell v. City of Hueytown, Ala., 268 So. 2d 3 (1972); Reams v. State ex rel. Clokey, 45 Ala.App. 614, 234 So. 2d 893 (1970); State ex rel. Morrow v. Santa Cruz, 252 Ala. 130, 39 So. 2d 786 (1949).
As we said in Campbell, supra:
Appellant, in his brief, admits that the relevant authorities are adverse to his contentions, but urges us to overrule these authorities. We have considered his position, but do not agree that such authorities should be overruled.
We are prone to treat a Rule 17 motion for summary affirmance with caution. However, the old maxim "justice delayed is justice denied" remains compelling. Thus, when careful examination of the record reveals that no substantial issue of law has been raised by an appeal, the motion for summary affirmance will be granted. The case before us presents such a situation.
The decree of the Circuit Court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | February 22, 1973 |
31f44ca0-9177-4660-9a54-5488259414f3 | Bank of Heflin v. Miles | 318 So. 2d 697 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 697 (1975)
In re BANK OF HEFLIN
v.
M. M. MILES.
Ex parte M. M. MILES et al.
SC 1026.
Supreme Court of Alabama.
August 21, 1975.
Rehearing Denied September 18, 1975.
*698 Rives, Peterson, Pettus, Conway & Burge and W. Eugene Rutledge, Birmingham, and Inzer, Suttle, Inzer and Pruett, Gadsden, for petitioners.
Steiner, Crum & Baker and M. R. Nachman, Jr., Montgomery, and John S. Casey, Heflin, for respondent.
FAULKNER, Justice.
The questions for decision in the instant case are whether or not stockholders are entitled to examine all of the records of the Bank of Heflin when demand has been made as required, and whether or not the *699 extraordinary writ of mandamus should issue in this case. We grant the writ.
M. M. Miles wrote two letters, dated 12 and 19 August, 1974, to the Bank of Heflin, requesting an unlimited inspection of the books and records of the Bank. The second letter alleged one or more proper purposes for an inspection: to ascertain whether any action had been taken contrary to the best interests of the stockholders, such as misuse of corporate funds; abuse of corporate office; diversion of corporate assets to the personal benefit of any officer, director, employee, or stockholder; misapplication of corporate assets, or favoring of certain customers of the Bank because of personal connections with officers or directors of the Bank; and to determine whether the directors have lived up to their fiduciary obligation to the stockholders.
Uncertain of the propriety of disclosing all of its records, the Bank filed a complaint for declaratory judgment, asking the circuit court to determine what records the defendant, Miles, was entitled to under Title 10, § 21(46). Similar letters were received from Mr. and Mrs. Jack R. Wood, also stockholders of the Bank. They were added as defendants. Miles and the Woods counterclaimed for the statutory penalty of 10% of the value of the shares they owned. All parties filed motions for summary judgment, along with numerous affidavits and depositions. No oral testimony was taken before the court.
On October 23, Judge Parker granted summary judgment for the complainant and issued his orders in the case. He found that proper notice had been given and one or more proper purposes alleged; that the filing of suit by the Bank was not a "refusal" to allow inspection of its records; that the directors have a fiduciary duty to the stockholders and customers and that because of the confidential relationship between the Bank and its customers, the stockholders' right to examine the Bank's records was limited. Judge Parker appointed a master to examine the Bank's records so that the stockholders could get a full and adequate review of the Bank's business without bringing about an unnecessary invasion of the private, confidential relationship between the Bank and its customers. He said that upon receipt of the master's report, he would set the time and place for review of the books and records of account, minutes, and record of stockholders and whatever else was deemed proper.
The defendants, Miles and the Woods, then petitioned for an alternative writ of mandamus or a rule nisi. The rule nisi was issued on November 13. The case is here for decision on the writ of mandamus.
The petitioners assert that they have, since they have made a proper demand alleging a proper purpose, a right of access to any and all records and writings of any kind or nature relating to the Bank of Heflin. They also contend that mandamus in this case is a proper method of reviewing the orders issued by the trial judge. They contend that mandamus is required, since an appeal would be inadequate; that the books and records of the Bank would change with time and could never be reconstructed to their present state. To review the appointment of a master and to expedite the disposition of the case, mandamus is the proper proceeding.
The position of the Bank in the initial controversy, and its position at the current stage, is that it has a duty to its customers not to disclose certain confidential memoranda, individual files, and materials from which the books and records of the account are prepared. This duty exists because of the Bank's fiduciary relationship with its customers and because of the strictures imposed on it by the banking laws and regulations. Stockholders can examine certain records if they have a "proper purpose;" certain others can never be viewed by the stockholders. The Bank is unsure which records should be disclosed; for this reason it argues that the trial court properly *700 used its powers in appointing a master to ascertain which records the stockholders have a right to examine. It approves the action of the trial court judge and asserts that review of his action should be by appeal.
In addition to common law inspection rights, stockholders now have rights under statutes. Alabama's statute, Title 10, § 21(46), is based largely on the ABA-ALI Modern Business Corporation Act, § 52, which enlarged and extended the common law right. Numerous cases in Alabama have upheld the shareholders' inspection rights based on the common law and statutes. Alabama Gas Corp. v. Morrow, 265 Ala. 604, 93 So. 2d 515 (1957); Loveman v. Tutwiler Inv. Co., 240 Ala. 424, 199 So. 854 (1941); Burns v. Drennen, 220 Ala. 404, 125 So. 667 (1930); Birmingham News v. State ex rel. Dunston, 207 Ala. 440, 93 So. 25 (1921); Foster v. White, 86 Ala. 467, 6 So. 88 (1889).
In Birmingham News, while interpreting the Code of Alabama 1907, § 3477, the precursor to Title 10, § 21(46), this court held that the statutory inspection right in Alabama was equally inclusive with the common law right. And, at common law the inspection right covered all the books and records of the corporation, including corporate documents, contracts and papers, but not including secret researches and the results of skilled and technical investigations. Cf. Otis-Hidden Co. v. Scheirich, 187 Ky. 423, 219 S.W. 191 (1920); Electro-Formation v. Ergon Research Laboratories, 284 Mass. 392, 187 N.E. 827 (1933).
The only express limitation of our statutory right of inspection is that it must be exercised at reasonable and proper times; an implied limitation is that it must not be exercised from idle curiosity, or for improper or unlawful purposes. Smith v. Flynn, 275 Ala. 392, 155 So. 2d 497 (1963). In all other respects the statutory right is absolute. The purpose of the statute, like that of the common law right, is to protect small and minority shareholders against the mismanagement and faithlessness of their agents and officers, by furnishing the mode and opportunity to ascertain, establish, and maintain their rights.
What inspection can be made by a stockholder of a bank? One that is for a proper purpose and does not interfere with the bank's conduct of its business. The inspection rights of stockholders of a bank are the same as stockholders of a corporation generally.
A case similar to the one at hand is Cooke v. Outland, 265 N.C. 601, 144 S.E.2d 835 (1965). There, a North Carolina statute, G.S., § 55-38, similar to the Alabama provision, Title 10, § 21(46), was construed to apply to domestic bank corporations and to authorize an inspection of the bank's books and records by a shareholder for the purpose of determining the value of his stock, the financial condition of the bank, and the efficiency of the bank's management. Subsequently, the North Carolina legislature modified the law to restrict the inspection, but permitted it for "good cause shown." Good cause can be found in this case.
The Bank asserts that mandamus will not lie in the absence of a prior application to the court below to set aside the order complained of. Citing Wood v. City of Birmingham, 247 Ala. 15, 22 So. 2d 331 (1945); Ex parte Edwards, 123 Ala. 102, 26 So. 643 (1899); and Ex Parte Bozeman, 213 Ala. 223, 104 So. 402 (1925).
It would be a futile gesture for Miles and Woods to file a petition to set aside the court's order. The trial judge says he ordered the appointment of a master because he did not know what records were kept by the Bank of Heflin; that he must have some knowledge of the number and description of the records kept by the Bank.
This court in ordering that the rule nisi be issued to the trial judge, ordered him to *701 enter an order allowing examination and audit of all books and records of the Bank, or show cause why he should not.
The trial judge answered in brief that the remedy here is appeal, and mandamus is no substitute for appeal. In this case we are of the opinion appeal is not an adequate remedy. Here the right of inspection of the Bank's records is a clear legal right. And, where the right sought to be enforced is a clear legal right, the allowance of which is a matter of peremptory duty, and not of judicial discretion, there can be but little doubt or difficulty in determining the propriety of the remedy by mandamus. Ex Parte Watters, 180 Ala. 523, 61 So. 904 (1913). The test for issuing mandamus depends on whether remedy by appealing is adequate to prevent undue injury. Ex Parte Weissinger, 247 Ala. 113, 22 So. 2d 510 (1945). If these parties have to wait for a master's report, and then appeal, it may be impossible to ascertain the state of the records at the time of the alleged wrong done them. Thus, they would suffer undue injury.
It is obvious that certain activities of the Bank are not reflected in the ledger of official action. The principles of equity, fair dealing, and good faith give the stockholders the right to know how the affairs of the Bank are conducted, and whether the capital, a part of which they contributed, is being prudently and profitably employed. The petitioners do not want to ramble through the books and records; they want merely an inspection by their accountants.
The right to inspect was a broad right at common law; Alabama has codified the common law, with slight exceptions. Banks are to be regarded as corporations under the Alabama statute. The applicable statute is not limited to "relevant" books and records; it is to be liberally construed. The shareholders advanced a proper purpose for inspection; their request was not overly broad, as it tracked the language of the statute. Hostility on the shareholders' part toward the officers of the Bank will not defeat their request; neither will the fact of mere confidentiality of the books and records sought. The inspection by the petitioners will not unnecessarily interfere with the Bank's conduct of business.
The writ is due to be granted.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | August 21, 1975 |
9280264b-8e99-43a4-8591-7755524a8c2b | Moon v. Nolen | 318 So. 2d 690 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 690 (1975)
Eddie L. MOON
v.
Dr. Jack R. NOLEN and Baptist Memorial Hospital.
SC 916.
Supreme Court of Alabama.
July 31, 1975.
*692 Ralph E. Coleman, Birmingham, for appellant.
Dortch, Wright & Ford, Gadsden, for appellees.
BLOODWORTH, Justice.
Appellant, Eddie L. Moon, brought this medical malpractice action against defendants, Dr. Jack Nolen and Baptist Memorial Hospital, seeking to recover for the death of appellant's premature infant. The Circuit Court of Etowah County entered judgment on a jury verdict for defendants and plaintiff has appealed to this Court. We affirm.
About twenty-four weeks into her pregnancy, appellant's wife was admitted to Baptist Memorial Hospital where, under the care of Dr. Nolen, she gave premature birth to an infant male who weighed only two pounds, three ounces (996 grams), and who suffered from severe respiratory distress. Dr. Nolen attempted to aid the infant's respiration by means of skin stimulation and artificial respiration, but no oxygen was administered in the delivery room. Dr. Nolen pronounced the infant dead and the infant was covered with a blanket and taken to the "suspect nursery," a room used to isolate deceased infants and infants with contagious diseases. Dr. Nolen then informed the family that the infant had died. When the grandparents were taken to the "suspect nursery," at their insistence, to see the infant, they discovered he was still alive. The infant was later removed to the regular nursery where oxygen was administered.
Hospital personnel testified that the child was taken to the regular nursery at 4:35 p.m., as recorded in the hospital record. However, the infant's grandparents testified that he was not removed from the "suspect nursery" until approximately 5:35 p.m. An examination of the hospital record shows that the original entry was "5:35" and that a "4" had been written over the "5." A nurse testified she made an error in the original entry and corrected it.
At 6:00 p.m., hospital personnel summoned a pediatrician, Dr. Griffith. The infant was not attended by a physician from the time it left the delivery room until Dr. Griffith's arrival at 6:15 p.m. Dr. Griffith found the child suffering from a severe acid imbalance in the blood caused by lack of oxygen resulting from the infant's *693 respiratory distress. Dr. Griffith testified that he prescribed and administered the drug sodium bicarbonate in an attempt to remedy the child's acid imbalance. The hospital record, however, indicates that the infant was administered magnesium sulfate. (Magnesium sulfate is commonly prescribed to achieve results the opposite of those for which sodium bicarbonate is commonly prescribed.) A nurse testified that magnesium sulfate was not actually given the child but that its entry in the hospital record was merely an error. (Testimony at trial indicated that in premature deliveries the obstetrician sometimes advises the parents to obtain a pediatrician to be present at the delivery. In this case, however, that advice was not given.)
After initial improvement in response to Dr. Griffith's treatment, the infant's acid imbalance reached a level inconsistent with life and the infant died the next day, within 24 hours of its birth.
After a jury verdict for defendants, appellant filed a motion for new trial which the trial court denied. On this appeal, appellant asserts the grounds set out in his motion for new trial as the basis for a reversal of the judgment of the trial court.
1. Appellant contends that the trial court committed reversible error in excluding plaintiff's exhibit number 3, a photograph depicting the deceased infant in its casket. Appellant offered the photograph as bearing on a material fact in issue, the infant's physical condition. It is beyond dispute that the infant's physical condition was a central issue in the trial court. Dr. Nolen's defense was based on the contention that his treatment was the proper care and treatment to be accorded the infant and was justified in view of the child's weight and gestational age; that infants of that weight and age were not usually expected to survive; and that no support is normally given to premature infants with such a poor chance for survival. Dr. Griffith testified, however, that the determination to place a premature baby aside without support varies with the general physical condition of the child, as well as its age and weight. Appellant contends that the photograph was relevant to the jury's determination respecting Dr. Nolen's care and treatment of the infant, that it would have impressed upon the jury the fact that the child was normalthat he bore the physical appearance of humanness and was not merely "a blob of protoplasm."
A photograph is "generally relevant and admissible for the purpose of explaining and applying the evidence" when it enables the jury "to have a better understanding of a person, place, object or conditions." Thompson v. Magic City Trucking Service, 275 Ala. 291, 296, 154 So. 2d 306, 311 (1963).
Nevertheless, the application of the rule to a particular photograph offered for admission remains a matter within the sound discretion of the trial court. The trial judge is vested with discretion not only in his determination as to the preliminary proofs offered to identify the photograph or to prove that the photograph is an accurate representation of the objects it purports to portray (International Union, etc. v. Russell, 264 Ala. 456, 88 So. 2d 175 (1956), aff'd 356 U.S. 634, 78 S. Ct. 932, 2 L. Ed. 2d 1030 (1958)), but also in his determination of whether the picture will aid the jury or tend to confuse or prejudice it. (International Union, etc. v. Russell, supra). The discretion of the trial court in such matters is not reviewable in the absence of a gross abuse of that discretion. Godwin v. Jerkins, 282 Ala. 11, 208 So. 2d 210 (1968).
We have examined the photograph in question and find that it justifies its exclusion by the trial court. The photograph is a small one, taken some distance from the casket, showing only the infant's head, the body being completely covered. The photograph does not illustrate the normalcy of the child's physical development nor *694 does it provide any reference point from which his size may be judged. Although the photograph was offered to support appellant's contention that Dr. Nolen was negligent in his judgment as to the infant's chance for survival, judged as of his condition at birth, the photograph was taken at a time when the child's appearance was quite different from that as of the time of his birth. Testimony at trial indicated that at birth the child's head was discolored due to its respiratory problems, this being one of the factors upon which Dr. Nolen made his determination as to the condition of the child. There is some evidence which indicates that at the time this photograph was taken, the infant's discoloration had disappeared since the body had already been put through the embalming process. In short, the evidence supports the trial judge's decision to exclude the photograph for the purpose for which it was offered. We find no abuse of discretion in the exclusion of this exhibit.
2. In the course of appellant's cross-examination of co-defendant Nolen on the occasion of the taking of his deposition, the following question was posed:
The trial court sustained an objection to the question and appellant contends this ruling denied appellant's right to the "thorough and sifting" cross-examination guaranteed under Title 7, section 443 of our Code.
The scope and extent of cross-examination is a matter reserved for the sound discretion of the trial court. The exercise of discretion in the limitation of cross-examination is not reviewable in the absence of gross abuse. Moody v. Stanfield, 292 Ala. 185, 291 So. 2d 301 (1974). Moreover, prejudicial error must be shown. Carlisle v. Miller, 275 Ala. 440, 155 So. 2d 689 (1963).
We find no abuse of discretion by the trial court in this instance for at least two reasons. First, the sustained objection was that "He is asking for a conclusion of the witness." Opposing counsel specified that their objection was to "the form of the question" and the judge was equally specific, as is evidenced by his explanation, "I am going to sustain the objection; I think it calls for a conclusion." This ruling left counsel for appellant free to rephrase his question and to pursue the same information. Second, the record does not support the charge that appellant was deprived of a "thorough and sifting" cross-examination. In fact, the record refutes this contention. Appellant read into evidence parts of the witness' deposition, comprising 38 pages of the record, his cross-examination of the witness comprising 36 pages of the record, and his re-cross-examination comprising 7 pages of the record. The objection in question was the only objection made during the entire course of appellant's examination of this witness. Thus, it is clear that appellant was not denied an opportunity for a "thorough and sifting" cross-examination of the co-defendant.
Moreover, appellant could have sought the same information from Dr. Nolen himself when the latter took the stand and testified. As this Court wrote in Jordan v. State, 267 Ala. 361, 102 So. 2d 4 (1958): "Considering the record as a whole, we do not think there was any abuse of sound discretion in the rulings upon the cross-examination." 267 Ala. at 365, 102 So. 2d at 8.
3. Rule 51 of the Alabama Rules of Civil Procedure provides that a party may not assign error with respect to the court's charge unless he makes a specific objection to the alleged error before the jury retires. Although appellant did not comply with the requirements of Rule 51, he now seeks a review of certain portions of the court's charge to the jury. Appellant *695 was given opportunity to preserve his objections to the court's charge when, at the close of the court's initial instructions to the jury, the court requested counsel to present their exceptions outside the jury's presence. Appellant made no exceptions at that time.
The federal case law is to the effect that it is incumbent upon counsel to assert the right to preserve exceptions and that such right may be waived by a failure to so assert. Swift v. Southern Ry., 307 F.2d 315 (4 Cir. 1962); Cosper v. Southern Pac., 298 F.2d 102 (9 Cir. 1961).
Appellant appears to contend, in brief, that the errors presently asserted were sufficiently preserved by counsel's conversation with the court in chambers. We have carefully reviewed these proceedings and we can nowhere find any objections, or grounds therefor, as specifically required by Rule 51, A.R.C.P., to preserve the alleged error. We conclude that appellant's failure to properly preserve his exceptions to the court's charge constitutes a waiver of the alleged error.
4. After several hours of deliberation, the jury requested that it be recharged. At first, the trial court refused this request upon appellant's objection. After a week-end recess, the court reconsidered the jury's request and re-charged the jury by reading a transcript of the original instructions. Again, appellant made no specific objection thereto in accordance with Rule 51, A.R.C.P. Appellant, however, did object to the court recharging the jury. Appellant now contends that this repetition of the court's original charge "re-emphasized" the prejudice to appellant originally injected by the court's initial charge. In view of appellant's failure to preserve exceptions to the error allegedly injected during the initial charge, appellant cannot now be heard to complain of the cumulation of such error allegedly caused by the court's recharge.
In the case of American Pamcor, Inc. v. Evans, 288 Ala. 416, 261 So. 2d 739 (1972), this Court recognized the trial court's discretion in the giving of additional instructions, particularly when done at the request of the jury. We find no merit in appellant's contention that the court's re-charge constituted reversible error.
5. Appellant further contends that reversible error was committed in the court's denial of appellant's motion for new trial on the grounds that one juror failed to respond truthfully on voir dire. A juror had failed to indicate on voir dire that his wife was currently a patient in the defendant hospital. Appellant's counsel had asked jurors whether they "have any relationship" with the hospital or "have done business" with it.
Such a denial of motion for new trial by the trial court strengthens the presumption of the correctness of the jury's verdict. South Highlands Infirmary v. Camp, 279 Ala. 1, 180 So. 2d 904 (1965).
In Norris v. Presley, 292 Ala. 155, 290 So. 2d 643 (1974), this Court held that the determination of probable prejudice arising out of a juror's failure to properly respond on voir dire is a matter within the sound discretion of the trial court and is not subject to review in the absence of an abuse of discretion. We find no abuse of discretion under the facts of this case. The evidence before the trial court, if believed, supports his ruling. Specifically, there was evidence before the court to support the proposition that counsel for appellant were speculating on the outcome of the case because one of appellant's counsel (who was in the same Sunday school class with the juror and was personally acquainted with him) had learned of the juror's wife's being in defendant hospital before the trial was over but made no effort to bring the matter to the attention of the court.
*696 Moreover, we think the question as phrased is vague and indefinite in asking as to "relationship" and having "done business" with the hospital. It may not have been clear to the juror that the hospitalization of his wife constituted a "relationship" (a generic term) or amounted to having "done business" (a past occurrence).
Finally, appellant submits that the verdict was contrary to the great preponderance of the evidence. In support of this contention, appellant lists several facts in evidence which strongly suggest that defendants' negligence constituted a violation of the duty of care owed by them to appellant's child. However, after having reviewed the record in this case, we find that the tendencies of the evidence most favorable to the defendants support the jury's verdict in their favor.
We reiterate as we did in Hodges & Company, Inc. v. Albrecht, 288 Ala. 281, 259 So. 2d 829 (1972), the holding, viz:
"See, 15A Ala.Dig., New Trial,
"See, 2A Ala.Dig., Appeal and Error,
288 Ala. at 285-86, 259 So. 2d at 832.
We do not find "the preponderance of the evidence against the verdict... so decided as to clearly convince the court that it is wrong and unjust," and must therefore affirm the judgment below.
In view of the result we reach, we need not consider the efficacy of the appellees' several motions, to strike the transcript of the evidence and to strike the record transcript.
Affirmed.
HEFLIN, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | July 31, 1975 |
c9b2b6d5-f300-4d52-9a2f-972bc58b91cb | Mitchell Homes, Inc. v. Tew | 319 So. 2d 258 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 258 (1975)
MITCHELL HOMES, INC., et al.
v.
William Wayne TEW and Voncile A. Tew.
SC 707.
Supreme Court of Alabama.
September 4, 1975.
*259 Benjamin H. Kilborn, Mobile, for appellants.
Geary A. Gaston, Mobile, for appellees.
HEFLIN, Chief Justice.
Appellants-defendants Mitchell Homes, Inc., and Gulf Coast Building and Supply Company of the Southeast, Inc. (defendants) appeal from a judgment rendered against them and for the appellees-plaintiffs William Wayne Tew and Voncile A. Tew (plaintiffs). That judgment is reversed.
The plaintiffs bought a new home in Prichard from the defendants on April 16, 1971 for the purchase price of $20,900.00. Testimony at trial indicated that from the beginning the plaintiffs began to notice small things wrong with the house. Although the defendants insist that earnest efforts were made to correct these problems, Mrs. Tew said they "only pretended" to fix them. In any event, she was never satisfied.
The main problem involved the floor tile, which soon began cracking, fading, and wearing thin. The plaintiffs and defendants argued long about this problem. The plaintiffs maintained the tile was defective; the defendants argued the problem was caused by excessive wear and poor care. Finally, the defendants suggested that Mrs. Tew write to the Veterans Administration (which had insured the Tews' loan) about the tile. She did, and a VA inspector recommended replacing the tile with tile of a comparable grade. Mrs. Tew and the defendants never agreed on the replacement title. She finally asked for carpet, offering to pay the increased price difference, however, no agreement was ever reached on this negotiation effort.
Complaints included chipped cabinet tops, split window sills, faulty sheetrock, warped doors, carpeting pulling away from the walls in places, and many other things. While many defects were mentioned in the complaint filed in court, and while many defects were listed by the plaintiffs in response to specific interrogatories by the defendants, no mention was made until trial of what appear to be the most serious of all the defects, a three-inch gap in the decking at the roof peak and an allegedly defective foundation. Evidence as to these two defects was presented at trial over defense counsel's strong and numerous objections.
The plaintiffs filed this suit charging defendants with breach of warranty and fraud in the sale of the house. The alleged fraud consisted of alleged misrepresentations by agents of the defendants to the effect that the house was "a good house" and "a good buy" and was constructed of good material by first-class workmen. The trial judge submitted the case to the jury on the theories of breach of warranty and fraud. The jury awarded the plaintiffs $35,000. Obviously this amount included punitive damages since the highest estimate of actual damages (given by the plaintiffs' expert witness) was between $18,000 and $19,000.
The defendants raised the statute of limitations of one year in their Plea No.
*260 3. The plaintiffs purchased the house on April 16, 1971, but did not file suit until November 17, 1972, some 19 months after the sale. The plaintiffs filed a motion for a directed verdict as to Plea No. 3 and the trial judge granted that motion without explaining his reason for doing so. The defendants on this appeal assign as error the granting of that directed verdict.
Alabama has a 1-year statute of limitations in fraud actions, Title 7, § 26, Code of Alabama of 1940, as amended (Recompiled 1958). However, Title 7, § 42 extends the time for bringing suit in certain instances. That section provides:
Plaintiffs contend that the facts of the case fit within "the saving clause" of Title 7, § 42 so as to give them one year from the time they discovered the fraud to bring the suit. However, in this case the question of when the fraud was discovered is one for the jury. In Loch Ridge Construction Company, Inc. v. Barra, 291 Ala. 312, 280 So. 2d 745 (1973), this court stated:
In Letson v. Mutual Loan Society, 208 Ala. 285, 94 So. 288 (1922), this court considered a statute of limitations problem and stated:
Without a discussion of the evidence presented in this case, it can be said that there was certainly evidence from which the jury could have found the plaintiffs discovered the fraud more than a year before bringing suit. The question of the discovery date should have been submitted to the jury. Thus it was error to grant the directed verdict on Plea No. 3.
The plaintiffs further contend that Title 7, § 23(1), Code of Alabama, 1940, as amended (Recompiled 1958-1973 Cumulative Supp.), is the applicable statute pertaining to statute of limitations in this case rather than Title 7,§ 26. If this contention is correct then there would be a 4-year statute of limitation instead of a 1-year period for fraud cases involving improvements to real property.
This court dealt with Title 7, § 23(1), in the case of Bagby Elevator and Electric Company, Inc. v. McBride, 292 Ala. 191, 291 So. 2d 306 (1974). In that case this court held unconstitutional a clause providing an absolute bar on suits after seven years. In the more recent case of Plant v. Reid, Ala., 313 So. 2d 518 (1975), this court held unconstitutional, at least for certain purposes, the four-year provision of Title 7, § 23(1). The effect of those cases on that section, however, need not be considered here because this court finds that the present action does not fit within the wording of that section. Title 7, § 23(1) related to actions "for damages arising out of any act or omission * * * in the design, planning, supervision or construction of * * * improvements" on real property. (Emphasis added.) These words do *261 not at all indicate that the legislature intended to create a four-year statute of limitations for suits based on fraud in the sale of improvements on real property; therefore, the plaintiffs are mistaken in their contention that Title 7,§ 23(1) is applicable in this case.
In this appeal the defendants argue many other assignments of error but it is not necessary to discuss these other problems since they are not likely to arise on a new trial.
Reversed and remanded.
BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur. | September 4, 1975 |
02d1ab1f-e4b0-40ac-9f2e-6b4b25cc4e23 | Cohen v. Williams | 318 So. 2d 279 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 279 (1975)
Philip F. COHEN
v.
Daisy Lee WILLIAMS, as Administratrix of the Estate of Daisy Burrell.
SC 1094.
Supreme Court of Alabama.
August 21, 1975.
*280 Marr & Friedlander, and Daniel G. Sayers, Mobile, for appellant.
Pillans, Reams, Tappan, Wood, Roberts & Vollmer, and William W. Stoudenmire, Mobile, for appellee.
EMBRY, Justice.
This appeal by Philip F. Cohen is from a decree of the Circuit Court of Mobile County against him and in favor of Daisy Lee Williams, the personal representative of Daisy Burrell, deceased. The decree was entered after oral hearing by the court without a jury. Action was brought on a judgment against Mobile Roofing and Construction Company, Inc., a corporation, that had previously been entered in favor of Daisy Burrell. The complaint invoked equitable principles to enforce that judgment against Cohen personally on the theory that Cohen so controlled the corporation, and conducted its business, as to make it merely his instrumentality and to permit the fiction of separate corporate entity to continue would allow the corporation to evade its just responsibilities.
The facts, as disclosed by the record, can be summarized as follows: Mobile Roofing was incorporated twenty-five to twenty-eight years prior to trial. It subcontracted home construction work, taking mortgages which were immediately assigned to a bank. Its subcontractors were paid with the funds derived from the assignments.
Sometime prior to 1967 Daisy Burrell contracted with Mobile Roofing for it to construct a house for her. During the term of that contract Cohen became the sole stockholder, director and officer of that corporation although at various times prior thereto there had been as many as two other stockholders, directors and officers. In June 1971 Daisy Burrell recovered judgment against Mobile Roofing in the amount of $11,000 on a cause or causes of action arising from that contract or the conduct of Mobile Roofing during its existence. Cohen "dissolved" the corporation because of the judgment by going out of business (there was no evidence that the "dissolution" was effected by compliance with legal formalities).
For ten or twelve years prior to trial there had been no meetings of stockholders or directors; no minutes of any meetings existed. Cohen had freely withdrawn money from profits of Mobile Roofing; he had borrowed money on an insurance policy and paid debts of the "dissolved" corporation with these personal funds but had not paid on the Burrell judgment. After hearing this evidence the trial court entered judgment against Cohen personally in the sum of $11,000.
The question presented for review, by the various assignments of error, is: Under the evidence, was this an appropriate case, in furtherance of the ends of justice, to treat Mobile Roofing and Construction Company, Inc., a corporation, and Philip F. Cohenthe individual owning all its stock and assetsas identical?
We find the evidence sufficient to support the decree to this effect, therefore affirm.
One of the most lucid expressions of the general rule pertaining to the disregard of corporate entity is found at 18 Am.Jur.2d, Corporations, § 14, p. 559:
*281 In Alabama, as elsewhere, it is basic that a corporation is a distinct and separate entity from the individuals who compose it as stockholders or who manage it as directors or officers. Loper v. Gill, 282 Ala. 614, 213 So. 2d 674 (1968). This is not a rule cast in concrete but rather this court has always looked to substance over form. In a proper case, when the corporate form is being used to evade personal responsibility this court has not been hesitant to disregard the corporate form and impose liability on the person controlling the corporation and subverting it to his personal use by the conduct of its business in a manner to make it merely his instrumentality. C. E. Development Co. v. Kitchens, 288 Ala. 660, 264 So. 2d 510 (1972) and cases cited therein.
In addition to the facts summarized in this opinion there was abundant evidence from which the trial court could properly deduce that Mobile Roofing was a fictional shield employed by Cohen to avoid personal responsibility. Let us hasten to add that limitation of personal liability is one of the valid attributes of the corporate entity. The limitation of liability to the corporate assets must give way to imposition of personal liability where the actions of those in control of the corporation denigrate the purpose of limited liability, that purpose being to encourage investment of risk capital. The denigration of purpose by those in control is a persuasive factor when decision is made to impose personal liability in a proper and particular case. The decision is one made as an evidentiary matter on a case to case basis. For a full discussion of the general subject see Inadequate Capitalization As A Basis For Shareholder Liability: The California Approach And A Recommendation, 45 So.Calif.L.Rev. 823 (1972).
A homing signal guiding one to agreement with the trial court's conclusion that Mobile Roofing was a device utilized by Cohen to evade personal liability was evidence that the impending Burrell judgment against the corporation caused him to "dissolve" the corporation and assume personal responsibility for corporate liabilities, save and except the Burrell judgment.
This court pointed out in C. E. Development Co., supra, by reference to other authorities, including Dixie Coal Min. & Mfg. Co. v. Williams, 221 Ala. 331, 128 So. 799, that actual fraud is not necessarily a predicate for discarding the theory of separate corporate existence. It may also be discarded to prevent injustice or inequitable consequences. Again for an excellent general discussion, in this instance, of the purpose of disregard of corporate entity, see Fletcher, Cyc. Corp. (Perm.Ed.) Vol. 1, 1974 Revised Volume, § 41.2, p. 179.
Cohen argues that he did not consistently disregard the corporate entity and that imposition of personal liability should not be made as to a contract entered into with the corporation during the years it validly existed as a corporation. This argument misconceives the issue. This is an action to make Cohen liable for a judgment against the corporation. It is not an action on the contract made with the corporation; judgment against it liquidated the damages recovered in this action. The complaint alleges and the answer admits that plaintiff first sought to collect the judgment from the corporation. Because of Cohen's "dissolution" of the corporation, there were no assets from which the judgment could be collected. Cohen personally assumed liability for all corporate debts except the judgment. By the "dissolution" he sought to evade the judgment. These are precisely the type of acts which a court in the exercise of its inherent equitable powers may view to differentiate the form from the substance.
Cohen also contends that in order to "pierce the corporate veil" (an overworked cliche) it must be shown that the corporation was formed for the purpose of perpetrating fraud upon its customers or creditors. The "dissolution" to avoid consequences *282 of the judgment is only another evidentiary factor tending to the deduction that Mobile Roofing was the alter ego of Cohen. A corporation "dissolved" to evade creditors can enjoy no more standing as an entity separate and apart from its sole stockholders and alter ego, who "dissolved" it for that purpose, than a corporation formed to accomplish such evasion. Dixie Coal Min. & Mfg. Co., supra. To permit either would eradicate the equitable principles which underlie the reasons for disregarding the separate corporate entity in the particular case under the particular circumstances, as we have already discussed.
The effect of our decision today will not subject Cohen to personal liability for any other than the Burrell judgment. Only the rights and liabilities of the parties in this case, in the circumstances of this case, may be adjudicated. Fletcher, Cyc. Corp., § 41.2, supra.
Affirmed.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | August 21, 1975 |
fce2ff0d-2997-45e3-abf6-03c4de50092b | Luckie v. State | 318 So. 2d 341 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 341 (1975)
In re Walter T. LUCKIE, alias
v.
STATE.
Ex parte Walter T. Luckie.
SC 1407.
Supreme Court of Alabama.
September 4, 1975.
Anne M. Weiss, Montgomery, for petitioner.
No appearance for the State.
BLOODWORTH, Justice.
Petition of Walter T. Luckie for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Luckie, alias v. State, 55 Ala.App. 642, 318 So. 2d 337.
Writ denied.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | September 4, 1975 |
a83e539e-f5c7-44d2-af45-d3024fe8951b | Lebo v. State | 318 So. 2d 324 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 324 (1975)
In re Willie LEBO
v.
STATE.
Ex parte Willie Lebo.
SC 1408.
Supreme Court of Alabama.
August 28, 1975.
Elno A. Smith, Jr., Montgomery, for petitioner.
*325 MERRILL, Justice.
Petition of Willie Lebo for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lebo v. State, 55 Ala.App. 624, 318 So. 2d 319.
Writ denied.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | August 28, 1975 |
e4f6e6bd-3e8a-4117-bc4c-8227f99d54fd | Mid-State Homes, Inc. v. Cone | 316 So. 2d 333 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 333 (1975)
MID-STATE HOMES, INC., and G. Floyd Philpot
v.
James CONE and Rose E. Cone.
SC 1098.
Supreme Court of Alabama.
July 31, 1975.
R. A. Norred, Birmingham, for appellants.
BLOODWORTH, Justice.
This is an appeal by Mid-State Homes (the seller) from a final decree rescinding and declaring void a real estate sales contract, relieving the Cones (the buyers) from any further liability for the unpaid balance on the contract, and rendering a $6,395.54 money judgment in the Cones' favor.
Mid-State Homes contends that the trial court erred in rendering this decree because the proof failed to support the allegations of the complaint which sought recision solely on grounds of the alleged fraud of respondent Philpot, as agent for Mid-State Homes. We agree and reverse and remand.
The trial judge heard the testimony ore tenus on October 7, 1971, after which it appears the cause was submitted. (July 3, 1973, was the effective date of the Alabama Rules of Civil Procedure. We thus consider Mid-State's contentions without regard to A.R.C.P.) The case was resubmitted on May 1, 1974, and final decree rendered July 12, 1974. (The final decree recites that the delay in rendering the decree was caused by the lengthy illness of the trial judge.)
We have carefully read the transcript of the record and at no point do we find any evidence to support the allegations of fraud on the part of Philpot, which are the sole grounds averred for relief. These allegations are:
It has long been the rule of our cases that the allegata and probata must correspond and if the proof does not correspond with the bill's allegations, there can be no recovery. Equity, 327, Ala.Dig., Vol. 8A.
However, when Mid-State Homes executed the contract to sell the subject property (a house and lot) to the Cones, it had no record title thereto, although it had foreclosed a mortgage on the property and purchased the property at the foreclosure sale. The mortgage had been executed to Jim Walter Corporation (parent company of Mid-State). During the trial, an assignment of the mortgage from Jim Walter to Mid-State (purportedly executed before foreclosure) was recorded. After the Cones had taken possession of the property, it also developed that other parties claimed title to a portion thereof.
Even appellant in brief concedes:
Mid-State also raises the additional issue that the trial judge's award to the Cones' of the return of their money is erroneous because, although they disaffirmed the contract, they remained in possession of the land. We see no need to consider this issue in view of our reversal on other grounds.
For the error in rendering the final decree based upon allegations in the bill of complaint which are unsupported by the evidence, this cause is reversed and remanded.
Reversed and remanded.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | July 31, 1975 |
db3c5e11-dc69-48dd-b9e2-e2fbb555b098 | Klein v. Mr. Transmission, Inc. | 318 So. 2d 676 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 676 (1975)
B. H. KLEIN and/or B. H. Klein Realty Corp., et al., etc.
v.
MR. TRANSMISSION, INC.
SC 773.
Supreme Court of Alabama.
August 21, 1975.
Miller, Hoffmann & Sundock, Montgomery, for appellants.
George H. B. Mathews, Montgomery, for appellee.
*677 SHORES, Justice.
This is an appeal from a judgment entered on a jury verdict in the amount of $15,800 in favor of Mr. Transmission, Inc. (plaintiff) against B. H. Klein Realty Corporation (Klein) and Andrew & Dawson, individually and as partners doing business as a general building contractor. Roosevelt Jackson was also a defendant. He had entered into a subcontract with Andrew & Dawson to finish the wall after the original subcontractor walked off the job when the wall was approximately 70% complete. The jury returned a verdict in his favor.
Andrew & Dawson had contracted to build an addition to a building owned by Klein. Plaintiff occupied a building located directly north of the new addition and separated from it by approximately one and one-half feet. The north wall of the addition to the Klein building was 115 feet across and three stories high. It consisted of a brick veneer, 2-inch air space, and concrete block.
As of the end of work on May 23, 1973, the third floor portion of the north wall was tied in to the remainder of the building as follows:
At the floor level, the brick and block were resting on the floor. The brick had been "raised" all the way to the roof; and the block had been "raised" all the way to the ceiling. At the roof level, the brick was connected to the roof by dovetail anchors. The brick and block were connected to each other by metal ties. Pursuant to the specifications, these metal ties were to be spaced at 16-inch intervals, vertically. The north and east walls connected at the northeast corner of the addition. The west wall was complete through the second floor level, thus there was no connection for the north wall at its northwest corner. The north wall of the new addition collapsed on the night of May 23, and the third floor portion of the wall fell through the roof of the building occupied by the plaintiff.
Plaintiff's suit charged negligence in the construction of the wall in failing to brace it during the construction, and in failing to follow the specifications with regard to placing metal ties at 16-inch intervals.
The action was defended on the assertion that there was no negligence in failing to brace the wall; that it was constructed in accordance with procedures normally followed in the construction of buildings in Montgomery; and that the wall fell not because of any negligence on the part of the defendants, but because of an act of God. According to Taylor Dawson, the fall was caused by "A wind that you couldn't anticipate and couldn't protect against."
Andrew & Dawson, on appeal, argue that the trial court erred in denying the motion for directed verdict offered by them, because it is contended that the record is devoid of any evidence that the wall collapsed by virtue of any negligence on their part.
There is no question that the wall fell and damaged the building occupied by the plaintiff. What caused it to fall was a jury question. Each side offered evidence to support its position. From the plaintiff's side came testimony from an expert witness, a structural engineer, who testified that he examined the construction site on May 24, 1973, not at the request of the plaintiff but at the request of the owner of the damaged building; and that, based upon his examination of the building specifications for the addition and an examination of the building itself, it was his opinion that the wall should have been braced. The witness testified:
*678 "A As has already been described the wall is a hundred and fifteen feet long, or was a hundred and fifteen feet long, and eleven feet, five inches high. It did not have any intersecting walls or partitions except, of course, the east wall, northeast corner...."
This witness also testified:
He defined curing as meaning that it takes a 28-day period for mortar to obtain its designed strength; and that the mortar in this wall had not obtained that strength, the last part of the wall having just been completed prior to the time the wall fell.
The defendants introduced evidence which tended to show that the building was constructed in accordance with standard acceptable practice for construction, and assert that there was no evidence that any improper construction in the wall itself contributed to its collapse.
However, the building specifications were admitted into evidence and provide in part:
Additionally, Mr. Dawson, one of the contractors, testified that the Southern Standard Building Code applies to construction in Montgomery; and, although there was disagreement among the parties as to whether certain provisions applied, it was conceded by Mr. Dawson that Section 2101.10 did apply to construction in Montgomery. That section provides:
Mr. Dawson testified that he had not sought permission, nor had the owners of the adjoining buildings refused to allow him, to protect the roofs of their buildings.
Roosevelt Jackson's pretrial deposition was entered in evidence. It disclosed that when he took over the job of finishing the wall, the brick was approximately three feet short of the third floor and the concrete block was up to the third floor. When the wall fell on May 23, the block had been up to the third floor ceiling about two days. The brick had been "topped *679 out" on May 23. Jackson said his responsibilities as masonry subcontractor were defined by his contract with the general contractor; he was not responsible for bracing the job; and, in his experience, bracing was never the subcontractor's responsibility.
Jackson's testimony was confirmed by Mr. Dawson, who said he hired Jackson to finish the masonry work and furnished Jackson with all of the raw materials.
There was evidence from which the jury could have concluded that the fact that the metal ties were not spaced at 16-inch intervals on all occasions by Jackson was not a contributing factor to the wall's collapse.
We find no error in the court's failure to grant Andrew & Dawson's motion for directed verdict. Without delineating any further evidence, which we think is unnecessary, suffice it to say that there was a scintilla of evidence, at the least, which required that the case against them go to the jury. They argue in brief that the only testimony that the wall should have been braced came from the structural engineer, whose testimony is set out above, and that there was also evidence that the wall was constructed in accordance with the accepted practice for contractors, and that such practice does not require bracing.
What should have been done is fixed by a standard of reasonable prudence, whether it is usually complied with or not. Roberts v. Kurn, 231 Ala. 384, 165 So. 77 (1936). The court properly submitted the issue to the jury and defined negligence as follows:
The trial court, in its charge, made it clear to the jury that the standard of care was what a reasonably prudent person would have done under the same or similar circumstances; and also apprised them that they should consider what a reasonable, prudent contractor in this particular area would have done. We agree with Andrew & Dawson that custom or practice may be considered on the question of due care, but as stated in 65 C.J.S., Negligence, § 16:
Andrew & Dawson next argue that the trial court erred in refusing to grant their motion for a new trial. It is their contention that the jury's verdict is contrary to the great weight of the evidence. As we have often said, the decision of a trial court in refusing to grant a new trial on the ground of insufficiency of the evidence will not be set aside on appeal unless, after allowing all reasonable presumptions in favor of the correctness of the ruling, the preponderance of the evidence clearly convinces us that the verdict is wrong and unjust. Woods v. Laster, 291 Ala. 139, 279 So. 2d 121 (1973); Vinyard v. Duck, 278 Ala. 687, 180 So. 2d 522 (1965), and cases collated at Appeal and Error Key. No. 1005(4), Ala. Dig.
The last argument made by Andrew & Dawson is that the verdict of the jury is inconsistent with the law and the evidence, in that the defendant Roosevelt Jackson was found not guilty of negligence; and that absent such a finding, the jury could not find that Andrew & Dawson were guilty of negligence.
There is no error to reverse here. There is nothing inconsistent with the verdict in finding for Jackson and against Andrew & Dawson, if the jury believed, as apparently it did, that the wall fell because it was not properly braced. There was no evidence suggesting that Jackson was responsible for bracing the wall. One of the theories advanced by the plaintiff for the wall's collapse was that it was not built according to the specifications, in that the metal ties were not always spaced 16 inches apart, and at least two were found to be spaced 24 inches apart after Jackson commenced his work. However, there was also evidence that this failure was not a contributing factor in the collapse of the wall. Evidently, the jury believed this testimony.
The judgment in favor of the plaintiff and against Andrew & Dawson is affirmed.
We turn now to the position taken by Klein. At the close of the evidence, Klein asked for the directed verdict. The refusal of the court to grant that motion is assigned as error here. We agree that Klein was entitled to a directed verdict in its favor. We have read every word in the record and find that the evidence is without conflict that Klein, as owner, entered into a contract with Andrew & Dawson whereby Andrew & Dawson agreed to construct an addition to the Klein building. Andrew & Dawson were not agents of Klein. They were independent contractors. This state has long adhered to the proposition that the owner is not liable to third persons for the negligence of such independent contractors, absent certain exceptions which are not material here. Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327 (1919); Scoggins v. Atlantic & G. P. Cement Co., 179 Ala. 213, 60 So. 175 (1912).
The judgment against Klein, is therefore, reversed and rendered.
In all other respects, the judgment appealed from is affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | August 21, 1975 |
c0591f5b-8111-43b7-b2c5-cc143e774271 | Wilkinson v. Duncan | 319 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 253 (1975)
Margie W. WILKINSON
v.
Terry DUNCAN et al.
SC 1317.
Supreme Court of Alabama.
September 4, 1975.
*254 Jackson & Sikes and Allen B. Edwards, Jr., Selma, for appellant.
Sterling G. Culpepper, Jr., Montgomery, for appellees.
BLOODWORTH, Justice.
Margie Wilkinson sought the probate of the alleged will of her deceased husband, Marvin Wilkinson. Mr. Wilkinson's children filed a contest of the will on the grounds of undue influence and lack of testamentary capacity. A jury rendered a verdict in favor of the contestants, the children, and judgment was entered thereon. The proponent, the widow Margie Wilkinson, appeals.
Although there are numerous assignments of error, only three are argued in appellant's brief. Those assignments of error which are not argued are considered waived. Supreme Court Rule 9; Lowery v. Stinson, 291 Ala. 415, 417, 282 So. 2d 244, 246 (1973).
Appellant first contends that the trial court committed reversible error in overruling appellant's objection to certain testimony *255 offered by appellee's witness, Dr. Lee. The alleged error arose in the following context, viz:
The appellant's objection came too late because it was made after the question had been answered. Madison Highlands Development Company v. Hall, 283 Ala. 333, 216 So. 2d 724 (1968). Even if it may be contended that the question did not call for inadmissible testimony but elicited an inadmissible answer, nevertheless, the appellant should have responded by making a motion to exclude the answer. Willingham v. State, 261 Ala. 454, 74 So. 2d 241 (1954).
Appellant, nevertheless, strenuously contends that Dr. Lee's testimony invaded the province of the jury since the very issue of testamentary capacity is a question of fact reserved for determination by the jury.
The general rule, as stated in our cases, is that "a witness, whether expert or not, cannot testify that the testator was or was not Capable of making a will, because, as it is said, this is the very issue to be submitted to the jury." [Our emphasis.] Councill v. Mayhew, 172 Ala. 295, 306, 55 So. 314, 317 (1911).
However, in the instant case prior to the introduction of the challenged testimony by Dr. Lee, counsel for appellant had already elicited direct testimony from appellant's own witness, as follows: "Would you tell this jury whether or not in your opinion, Mr. Wilkinson had such legal testamentary capacity to be able to execute a will, a will on November 20, 1972 when he signed this will?" [Our emphasis.] The witness responded: "He did, and there is absolutely no question in my mind that's so."
The introduction of such illegal testimony by appellant's own witness opened the door to rebuttal by appellee through introduction of the evidence here in question, although the prior evidence had not been objected to. Cunningham v. Lowery, 45 Ala.App. 700, 236 So. 2d 709 (1970).
Furthermore, the issue before the jury was whether the deceased had testamentary capacity on the date that the contested will was executed, November 20, 1972. The deceased's testamentary capacity on any other date was not the ultimate question to be decided by the jury.
Appellant's second assignment of error is that the court improperly allowed in evidence prejudicial testimony concerning the character of the appellant. This testimony arose during the examination of Mrs. Stinson, sister of the testator, viz:
Reversible error is not made to appear herein. Even if we assume there was error in overruling the objection, it was harmless error. Supreme Court Rule 45.
The jury had already been permitted to hear without objection that the appellant had been seeing another man and that she and the deceased had lived together before their marriage. Appellant herself testified that she had been going with the deceased for ten years prior to their marriage, a period during which both she and he were married to third parties. We find no substantial injury to the rights of the appellant in light of the record, viewed in its entirety and, therefore, no reversible error. Bates v. Rentz, 262 Ala. 681, 81 So. 2d 349 (1955). Moreover, "Where [as here] a will is contested on the ground of undue influence, evidence as to the nature and relation and dealings between testator and beneficiaries is admissible." Whitt v. Forbes, 258 Ala. 580, 64 So. 2d 77 (1953).
In her third assignment of error, appellant contends that appellees were allowed to resort to an indirect means of introducing illegal evidence of testamentary capacity. Appellant argues that "[b]y allowing the [hypothetical] question posed to the witness to include the fact that Marvin G. Wilkinson executed a will on November 20, 1972, and then asking the witness his opinion of the mental condition of Marvin G. Wilkinson, Appellees were allowed to indirectly place before the jury testimony which the law would not allow them to do directly." The allegedly improper testimony elicited by this hypothetical was:
Had the above statement spoken to the testamentary capacity of the deceased on November 20, 1972, appellant might well contend that it constituted illegal testimony. Moreover, we have already pointed out the rule is that illegal evidence may be introduced to rebut illegal evidence already submitted by the other party. In this case, it was appellant who first introduced illegal evidence of testamentary capacity on November 20, 1972.
Miller v. Whittington, 202 Ala. 406, 80 So. 499 (1918), holds that a witness, *257 who has had adequate opportunity to make a reasonable judgment as to the testator's mental condition, may testify concerning the testator's mental condition on the date of the will. The testimony in question did not exceed this permissible range of comment.
Having found that no improper answer was given in response to the hypothetical to which appellant assigns error, we need not be concerned with the form of the question. As we stated in Fowler v. Fowler, 292 Ala. 340, 342, 294 So. 2d 156, 158 (1974), "a verdict cannot be reversed because of improper questions propounded to a witness unless, it response to such questions, improper evidence is elicited and admitted."
Finding no reversible error in the assignments of error argued, the judgment of the trial court is due to be affirmed.
Affirmed.
FAULKNER, ALMON and EMBRY, JJ., concur.
HEFLIN, C.J., concurs in the result. | September 4, 1975 |
53be8153-8d94-4fe5-a139-b83d1dd42210 | Beasley v. Bozeman | 315 So. 2d 570 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 570 (1975)
John K. BEASLEY and Jerry K. Beasley, a minor who sues by and through his father and next friend, John K. Beasley
v.
Gregory BOZEMAN, a minor, and Lynn Bozeman.
SC 1134.
Supreme Court of Alabama.
July 10, 1975.
Jordan, Heard & Fuller, Montgomery, for appellants.
Thomas H. Keene, Montgomery, for appellees.
MADDOX, Justice.
The sole question for decision is the constitutionality of Alabama's "Guest Statute," Title 36, § 95, Code of Alabama 1940 (Recomp. 1958), which reads as follows:
Appellant argues that our guest statute violates Sections 1, 6, 13 and 22 of the State Constitution and Amendment 14 of the Federal Constitution. These identical claims were made when the constitutionality of Alabama's guest statute was upheld in this Court's case of Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939).
We are aware that some courts have held their guest statutes to be unconstitutional. Cf. Brown v. Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 506 P.2d 212 (1973); Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974). The Supreme Court of the United States has upheld the right of a state to pass a guest law. See Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221 (1929).
Several other states besides Alabama have recently upheld their individual guest *571 statutes. See Tisko v. Harrison, 500 S.W.2d 565 (Tex.Civ.App.1973); Richardson v. Hansen, 527 P.2d 536 (Colo. 1974); Justice v. Gatchell, 325 A.2d 97 (Del.Supr.1974); Keasling v. Thompson, 217 N.W.2d 687 (Iowa 1974); Duerst v. Limbocker, 525 P.2d 99 (Or. 1974); Cannon v. Oviatt, 520 P.2d 883 (Utah, 1974); Botsch v. Reisdorff, 193 Neb. 165, 226 N.W.2d 121 (1975); Behrns v. Burke, 229 N.W.2d 86 (S.D.1975).
We are of the opinion, that under the distribution of powers section of our State Constitution, it is within the province of the Legislature to ascertain and determine when the welfare of the people might require that the guest statute should be repealed. The Legislature's power should not be interfered with unless it is exercised in a manner which plainly conflicts with some higher law. Pickett v. Matthews, supra.
The judgment of the circuit court is due to be affirmed.
Since we affirm the case, it is unnecessary for us to discuss the point raised by the appellee that the constitutional question was not adequately raised in the trial court.
Affirmed.
MERRILL, BLOODWORTH, ALMON and SHORES, JJ., concur.
HEFLIN, C.J., concurs in the result.
JONES, J., concurs specially, with which FAULKNER and EMBRY, JJ., concur.
JONES, Justice (concurring specially).
Because my concurrence with this opinion represents a change of mind, I am constrained to comment on the reasoning process which led to this reversal in my thinking. It is the discipline of this office, and fortunately so, that initial impulses do not always prevail against thorough research and more deliberate consideration. Especially do we find this to be true when we commit to writing the rationale for our conclusions, which is frequently practiced in difficult cases although another of the Justices has been assigned to prepare the opinion. It is not too uncommon to find that what will "think out" will not "write down"; thus the expression in judicial circles, "It just won't write that way."
My initial compulsion was to strike down the guest statute as bad law. While I have not changed my mind about the quality of the Act, I have concluded there is no legal basis on which this Court could hold the statute invalid. To disagree with the public policy expressed by the legislature in the guest statute is easy. Indeed, I have always believed that the "hitch-hiker" theory, which was allegedly the basis of the public policy expressed therein, was but a guise and a ruse for the real reason for its passagethe protection of corporate insurors and other vested interests. Had I been a member of the legislature then, I would have voted against its passageor now, I would vote for its repeal. The case law development, particularly those decisions which seek to define the status of guests versus other passengers, of itself shows the folly and lack of wisdom of such a law.
On the other hand, I believe strongly in the wisdom of the separation of powers doctrine which is the foundation of our system of government, and the Court is powerless to strike down as invalid a legislative act unless such act is constitutionally prohibited or otherwise violative of constitutional proscriptions. The legislative process, through elective representatives, with all of its faults, and its tendency to be unduly influenced by pressure groups, is the best method yet derived by man for the enactment of laws expressive of the public policy of its people. (I would add parenthetically: My faith in this process further leads me to believe that a legislature sensitive to the will of the people it represents will now exercise its prerogative to repeal this inherently bad law.)
*572 Having said this, however, I would hasten to add that this does not mean that this Court is not a lawmaking tribunal. The common law is still very much alive in this state; and I believe it is the proper function of this Court, in the context of litigated issues, to formulate and announce through written opinions rules of law in areas which fall outside legislative prerogatories or in areas where those prerogatories have not been legislatively exercised. This includes, in my opinion, reexamination of existing case law; and, with due regard to the principle of stare decisis, to overrule prior decisions when we are convinced beyond peradventure of doubt that such decisions were wrong when decided or that time has affected such change as to require a change in the law.
Stare decisis is a noble principle, but it is not case-hardened res adjudicata. Unlike the Killy-loo bird, who insists on flying backward, the law must be interested in where it is going as well as where it has been. This judicial reexamination of case law likewise should include statutory interpretation so as to insure that the legislative intent is given full effect. I believe there is a broad distinction between the Court's usurpation of legislative prerogativeswhich is forbiddenand the interpretation of legislative intentwhich is a legitimate judicial function.
The complementary statutory enactment process by the legislature on the one hand, and the creative judicial process on the other, was wisely put into perspective by Justice Cardozo in "The Growth of the Law" (pp. 131-134):
Here, appellants ingeniously argue that the guest statute violates the equal protection injunction of the state and federal constitutions by not imposing on the host of a social guest in an automobile the same duty of due care as imposed on the host of other social guests in our society. Appellant approaches this contention forthrightly, recognizing that line of Alabama cases dealing with premises defects which treat the guest as a mere licensee and imposes on the host the duty only not to willfully or wantonly injure.
Appellant reasons that the parallel burden of proving wantonness holds only where the conduct resulting in injury is passive rather than active negligence. The cases tend to bear our appellant's latter premise; and, even if they did not, I would have no reluctance, under the thesis discussed above, to reexamine and reconsider, in the proper adversary context, our judge-made laws of premises liability.
At any rate, assuming the validity of appellant's contention between the status of automobile guests and nonautomobile guests, I am unable to conclude that this classification is unreasonable or otherwise constitutionally proscribed. Here, again, I would emphasize that I see no good reason for such distinction, but this is a personal opinion which does not constitute a legal basis for a declaration by this Court of constitutional invalidity.
FAULKNER and EMBRY, JJ., concur. | July 10, 1975 |
27768d84-a1a6-4c7d-98ac-10a929380659 | Village Inn Pancake House of Mobile, Inc. v. Higdon | 318 So. 2d 245 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 245 (1975)
VILLAGE INN PANCAKE HOUSE OF MOBILE, INC., an Alabama Corporation
v.
Charles H. HIGDON.
SC 1237.
Supreme Court of Alabama.
July 31, 1975.
*246 Donald F. Pierce and William C. Roedder, Jr., Mobile, for appellant.
Charles H. Erwin, Mobile, for appellee.
EMBRY, Justice.
Appeal by plaintiff below from judgment of the Circuit Court of Mobile County rendered after trial without jury on evidence adduced ore tenus. The provisions of the judgment complained of in this appeal denied rescission of that part of a stock redemption agreement containing a noncompetition covenant and denied money judgment for plaintiff against defendant in the sum of $10,000 plus interest. We affirm.
Defendant Charles Higdon and wife owned fifty percent of the stock (30 shares) of Village Inn Pancake House of Mobile, an Alabama Corporation. Mr. and Mrs. Higdon managed the restaurant of that corporation known as Village Inn Pancake House. On 29 August 1971 they entered into an agreement under which the corporation purchased for redemption the stock owned by the Higdons for the sum of $57,500 payable in five installments. Paragraph 6 of the agreement states:
1. To permanently enjoin Higdon from violating the noncompetition covenant contained in paragraph 6 of the agreement.
2. To direct specific performance of the terms of paragraph 6.
3. To enter judgment against Higdon in the sum of $10,000, plus interest and costs, from the date on which the noncompetition covenant was found to be first violated.
4. For such further or other relief to which Village Inn might be entitled or for which it moved during the pendency of the litigation.
Higdon's answer denied breach of the noncompetition provision of the Redemption Agreement. Issue was joined and trial proceeded on these questions: (A) Was the noncompetition provision violated? (B) Did Village Inn suffer loss and damage as a result of any violation of the noncompetition provision? (C) Was the Redemption Agreement a severable contract so that the noncompetition provision could be rescinded and the $10,000 consideration allocated to that provision be restored to Village Inn?
After hearing the evidence the trial court: (1) found Mr. Higdon in violation of the covenant not to compete (non-competition provision) beginning January 1974 to the date of the action (filed 22 March 1974); (2) plaintiff Village Inn had suffered no financial loss as a result of such violation; (3) denied injunctive relief, as by its terms the covenant was due to expire 10 September 1974 and injunction under those circumstances was not warranted in light of admission by plaintiff Village Tnn that it had sustained, and was sustaining, no loss; (4) denied rescission of the covenant (paragraph 6 of the entire agreement) not to compete; (5) declined to award plaintiff Village Inn the sum of $10,000 for total failure of consideration by defendant Mr. Higdon competing indirectly within the convenanted period on the ground it could not grant partial rescission of an entire transaction and plaintiff had not sought relief by way of total rescission of the whole transaction; and finally, (6) awarded plaintiff Village Inn nominal damages in the sum of $5.00.
The trial court further found that to enforce the noncompetition provision only, would be a partial rescission of the Redemption Agreement when the noncompetition provision therein was made in conjunction with the redemption of the stock of defendant and wife, Gerda G. Higdon. The trial court also ruled there may be no partial rescission of the noncompetition covenant alone.
The assignments of error present this question for review: (1) Is the covenant not to compete severable from the agreement for redemption of the stock thus entitling Village Inn to rescind the covenant and have restored to it the $10,000 consideration when the covenant is violated by defendant Mr. Higdon? We answer in the negative, therefore need not discuss the validity of Higdon's contention that the covenant is an unreasonable restraint of trade prohibited by Code of Ala., Tit. 9, §§ 22, 23.
Village Inn urges that the findings of fact of the trial court be reviewed, and it be reversed in its conclusions based thereon, for such findings not having support in the evidence. This we may do only if the findings of the trial court are clearly erroneous. Rule 52(a), ARCP; Eubanks v. Richards, 294 Ala. 30, 310 So. 2d 883. The inquiry is thereby limited to whether *248 there was credible evidence to support the finding that, under applicable law, the Redemption Agreement was an expression in writing of a contract relating to a single, entire transaction of which the covenant not to compete was an integral, nonseverable part?
The record contains ample evidence from which the trial court could deduce that, according to the intention of the parties and the subject matter of the "REDEMPTION AGREEMENT" such was an entire contract, not a severable one. The objective of the parties, when entering into negotiations, was the transfer of stock of Village Inn owned by Higdon and wife from them to the Village Inn Corporation. This was the entirety of the transaction. The terms and conditions attendant upon that transfer were integral parts of the whole. The covenant by Mr. Higdon not to compete was simply a nonseverable incident condition, term or part. It is clear from the evidence that Village Inn would not have agreed to purchase the Higdons' stock absent Charles Higdon's agreement not to compete. Concomitantly, Higdon most certainly would not have so agreed except as a condition to the sale of stock by him and Mrs. Higdon.
The apportionment or allocation of stated consideration to the noncompetition provision is not persuasive to the conclusion that the contract was severable. There was evidence from which the trial court could properly conclude that Village Inn found tax advantage in so doing rather than intending such to make the agreement severable and susceptible of rescission as to the noncompetition provision. The general history of these covenants show they are made only in conjunction with other agreements, generally sale of goodwill or employment contracts. See Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625 (1960). As noted, the trial court found, and the record supports such finding, that the apportionment of the $10,000 to the covenant was made, in part, for tax advantage to Village Inn.
Although not cited by either party to this appeal we should point out the inaptness of Blythe v. Embry, 36 Ala.App. 596, 61 So. 2d 142, to the case under consideration. In that case it was said:
Under the facts, within the context of the issues, the quoted rule was decisive in that case. The errors assigned in Blythe related to refusal of the trial court to give certain charges requested by appellant Blythe (defendant below), those charges being affirmative in nature. It was a suit on the common counts by appellee Embry (plaintiff below) seeking recovery of monies claimed due under an oral severable contract. Blythe contended that an oral entire contract was entered into between the parties with different terms than those which would make it a severable one. There was a direct conflict as to which was the real contract and that question of fact was for the jury. The jury accepted the version of appellee Embry. The quoted statement was followed without intervening comment by these words: "Thus, if appellee's version be accepted, the contract was severable * * *." By the conflict in evidence as to the "versions" of the contract the additional factors to be considered in determining severability of a contract were necessarily considered by the jury. Those additional factors were, intention of the parties and subject matter of the contract. Worthington v. Gwin, 119 Ala. 44, 24 So. 739 (1898). See also 6 Williston on Contracts, § 860 (3d Ed., 1962), p. 255.
We hold that the divisibility of a contract depends on the intention of the parties as found from the apportionability of the contract's consideration, the subject matter and object of the entire contract, and any other pertinent facts surrounding its making at the time it was made. While the consideration on both sides of the contract is capable of apportionment, these other factors preponderately indicate it was not the intention of the parties that the covenant not to compete be severable from the other provisions of the stock Redemption Agreement.
It follows that the judgment of the learned trial judge holding he could not grant partial rescission of the contract was correct since the contract provisions were not divisible, Americanized Finance Corp. v. Yarbrough, 223 Ala. 266, 135 So. 448 (1931). The extreme circumstances which might justify partial rescission of such a contract were not present. Woodlawn Theatre Co. v. Continental Securities Corp. of Alabama, 237 Ala. 88, 185 So. 763 (1939).
By its own admission Village Inn suffered no actual loss, therefore no damages were proved. The contract was entire, therefore no partial rescission was permissible; ergo no restitution of consideration was required and nominal damages for the breach of the covenant not to compete were sufficient.
Affirmed.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | July 31, 1975 |
b52c306e-32b0-406e-adc8-ceb3be5dfb51 | Ingram v. Horn | 317 So. 2d 485 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 485 (1975)
Suzanne D. INGRAM and Kay D. Foster, as Administrators, etc., et al.
v.
Annie Lou Dailey Hicks HORN.
SC 1163.
Supreme Court of Alabama.
July 31, 1975.
Rehearing Denied August 21, 1975.
J. Garrison Thompson, Selma, for appellants.
James M. White, Centreville, for appellee.
BLOODWORTH, Justice.
Appellee brought suit against Suzanne D. Ingram and Kay D. Foster, individually, and in their administrative capacity, seeking to have a deed declared null and void. The Circuit Court of Bibb County, sitting without a jury, rendered a final judgment which set aside the deed in question and vested title in appellee. Appeal was then perfected to this Court by the administratrix and heirs of the deceased grantee.
On October 21, 1971, appellee executed a deed conveying to her brother, Harold Dailey, the fee simple title in and to a 260-acre tract of land, reserving in herself a life estate.
In her complaint appellee avers that she signed the deed under the mistaken belief that it conveyed title to a city lot in Centreville, Alabama. This belief, she avers, arose out of her reliance on the fraud *486 and misrepresentations of her brother, Harold Dailey, the grantee and Sheriff of Bibb County, who, she avers, brought the deed to her home, informed her that it conveyed title to her lot in Centreville, and assured her that she need not read the deed since she already knew its contents. In reliance on her brother's alleged misrepresentations, appellee avers that she signed the deed without reading it, without knowledge of its actual contents, and without the intention of conveying title to the 260-acre tract. It is alleged that appellee did not learn of the actual contents of this deed until after the death of her brother. Shortly thereafter, on May 30, 1974, appellee brought suit against his administratrix, who also are his heirs, praying for a cancellation of the deed.
At trial, three theories were advanced upon which appellee asserted her right to the requested relief: (1) that there was a total failure of consideration for the execution of the deed; (2) that she signed the deed without knowledge of its contents and without the intention of conveying the land described therein; and (3) that the execution of the deed was procured through the fraud and misrepresentations of Harold Dailey.
The trial judge rendered judgment for appellee. He found, inter alia, that a deed is invalid without a "meeting of the minds," that the deed was not read by, or to, appellee, that she did not know she was conveying the land, and that she did not intend to convey the property described therein. On this appeal, appellants challenge not only the court's conclusions of law but also the sufficiency of the evidence to support the decree.
As to the first of appellee's theories, we agree with appellants that a deed may represent a gratuitous conveyance of realty, and that even a "total failure of consideration" such as that alleged by appellee is insufficient grounds for the cancellation of an otherwise valid deed. As this Court has pointed out, "A deed is valid and operative as between the parties and their privies, whether founded on a consideration or not." Porter v. Roberson, 263 Ala. 294, 296, 82 So. 2d 244, 245 (1955).
As the second of the theories upon which appellee sought the cancellation of the deed, it is alleged that appellee executed the instrument without knowledge of its contents and without the intention to convey.
When a grantor fails to read a deed (having the ability to read and understand it) and this results in his execution of an instrument which conveys realty, although he subsequently avers he did not intend to convey, the grantor's mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced by fraud or misrepresentation. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So. 2d 865 (1972).
Accordingly, if the deed in this case is to be set aside because of appellee's lack of intention to convey the property described therein, appellee must prove that she acted under the influence of fraud or misrepresentation. This Court has held that "The degree of proof required to rescind or Cancel a conveyance because of fraudulent misrepresentation is more than a mere probability of the truth of the charge of fraud." Hodges v. Beardsley, 269 Ala. 280, 282, 112 So. 2d 482, 483-84 (1959).
In cases where the grantor seeks to set aside a deed on the ground that a fraudulent misrepresentation induced him to sign the deed without knowledge of its contents, this Court has required that the fraud must be clearly and satisifactorily proven. Cross v. Maxwell, 263 Ala. 509, 83 So. 2d 211 (1955); Hodges v. Beardsley, supra.
"If the proof is uncertain in any material respect, it will be held insufficient, though the court may feel that a great wrong has been done; the court cannot grant the relief by reason of uncertainty." Wooddy v. Matthews, 194 Ala. 390, 69 So. 607 (1915).
*487 After carefully reviewing the record below, we find that the appellee has not met this burden of proof on the issue of fraud. Appellee was the sole witness to the alleged misrepresentations made by the deceased grantee. Whether testimony regarding alleged fraudulent statements made by the deceased grantee may be rendered incompetent by operation of the Dead Man's Statute (Title 7, section 433, Alabama Code (Recomp. 1958), we need not decide because no evidence was offered to substantiate the charges of alleged fraud and misrepresentations. Thus, appellee's alleged lack of intent to convey is an insufficient basis for the cancellation of the deed.
The third theory advanced by appellee upon which the cancellation of the deed is sought is that the execution of the deed was procured through the fraud and misrepresentations of the deceased grantee. Here again, we reiterate that appellee's right to relief is contingent upon clear and convincing proof of the alleged fraud and misrepresentation, authorities supra. Moreover, this Court is committed to the proposition that an acknowledgment to a deed is entitled to great weight and can be impeached only when the evidence is clear and convincing. Porter v. Roberson, supra. The record of trial in the instant case does not contain any evidence of such fraud or misrepresentation, nor did the trial court make any finding of fact with respect thereto.
The undisputed evidence is that Sheriff Dailey came to appellee's home with his secretary, a notary public, who took appellees' acknowledgment to the deed. The instrument was not read to appellee. The secretary testified she did not read the deed nor was she told that it was until they were returning to the office when Sheriff Dailey told her it was a deed to appellee's place. Over appellant's objection, appellee was allowed to testify that she did not know what the deed was when she signed it and that she did not intend to convey the 260-acre tract to the deceased. There was no evidence that any false representation was made by Sheriff Dailey at the time of the deed's execution.
In the absence of proof entitling appellee to the relief sought, we must reverse and remand the judgment of the circuit court.
Reversed and remanded.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | July 31, 1975 |
138ec2e3-c36a-4177-9253-c264bf7eff7d | City of Mobile v. Mitchell | 318 So. 2d 708 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 708 (1975)
CITY OF MOBILE, a Municipal Corporation of the State of Alabama
v.
Price L. MITCHELL et al.
SC 1122.
Supreme Court of Alabama.
July 31, 1975.
S. R. Sheppard and Robert C. Campbell, III, Mobile, for appellant.
Mylan R. Engel, Mobile, for appellees.
EMBRY, Justice.
This appeal is from a judgment of the Circuit Court of Mobile County which contained, in addition to findings, the following order:
The action was one for declaratory judgment, brought by City of Mobile against the defendants Mitchell, Berger and Vaughan as members of, and constituting, the Personnel Board for Mobile County, Alabama and defendant Grant a former employee of plaintiff-City in its Classified Service as Toll Collector, Bankhead Tunnel Department.
*709 The dispute, sought to be resolved by the action, was whether earnings of Grant from other pursuits were properly deductible from back salary which the trial court ordered paid to him by the City of Mobile for the period during which he was wrongfully prevented from working for the City. That is the sole question presented for review by this appeal.
The dismissal of Grant by the City of Mobile, his appeal to the Personnel Board, the action of the Board and action of the trial court on review of the Board's action was described in Grant v. City of Mobile, 50 Ala.App. 684, 282 So. 2d 285, cert. den. 291 Ala. 458, 282 So. 2d 291 (1973).
A portion of the judgment below reads:
That portion of the judgment quoted next above paraphrases language found in Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787 (1886). The New York court in Fitzsimmons, as did the learned trial judge in this case, held that the municipal employee was entitled to his earnings as an incident of his employment (office), not by virtue of contract, therefore need not deduct from his recovery for wages whatever he has earned from other pursuits while unjustly discharged. We are in accord with the reasoning of both courts and affirm the judgment below.
Indeed we find this result and expression of the underlying principles of law in support of it in City of Anniston v. Douglas, 250 Ala. 367, 34 So. 2d 467 (1948). There a police officer of the City of Anniston had been suspended and was prevented from working for a period of time by reason of that suspension. He brought suit to recover his salary for such period. On the points of law pertinent to this case, considered by this court in Douglas it was stated:
Admittedly, we follow a minority view. We do so in just resolution of the question and follow Douglas under the facts of this case. The majority rule with respect to municipal employees is different. A substantial majority of the courts which have considered the question now before us conclude that a wrongfully suspended (or wrongfully discharged) municipal employee due back pay upon reinstatement must deduct other compensation earned during the period for which back pay is due. See cases collected in 4 McQuillin, Municipal Corporations, § 12.186 (3d Ed., 1968); Annot., 150 A.L.R. 100 (1944). The majority rule apparently is based on a differentiation between municipal officers and municipal employees: a public official or officer is entitled to full pay whether, working or not, as an incident of office whereas a public employee's right to pay is more akin to the right to pay of one under a contract of employment. 4 McQuillin, § 174b. In the latter instance the majority *710 would require the employee to mitigate damages by deducting from an award of back pay such earnings as were realized from other pursuits while wrongfully suspended or wrongfully discharged from his municipal employment.
That rationale is untenable. Both classes of public servants hold their positions by virtue of law. In the instant case Grant and employees of the City of Mobile are specifically governed by Act No. 470, Local Acts of Alabama, 1939. Section XI, p. 307, of that Act states:
That Act further provides that raises or deductions can only be made within the minimum and maximum rate set for the class or position in which an employee works. Thus the salary of Grant is fixed by law and is incident to his office, position as a Classified Service employee, just as the salary of Douglas was fixed by authority of law as an incident of his office (position) as a police officer under civil service. Act 470 labels the civil service of Mobile County and municipalities therein as the Classified Service.
Grant was wrongfully prevented from working, he is entitled to his salary; since that salary is fixed by authority of law it may not be diminished. We therefore hold that where a Classified Service municipal employee is wrongfully prevented from working, he or she is entitled to recover full back pay without any deduction of other compensation earned.
Appellee's motion to dismiss the appeal based on asserted deficiences in perfecting the appeal and assigning error is overruled.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | July 31, 1975 |
ba5e366f-a4b5-4afd-a03b-ac482a9f19ab | Harrison v. Insurance Company of North America | 318 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 253 (1975)
In re Woddie E. HARRISON, Plaintiff-Appellee,
v.
INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.
CER. 1.
Supreme Court of Alabama.
August 28, 1975.
Balch, Bingham, Baker, Hawthorne, Williams & Ward and C. William Gladden, Jr., Birmingham, for defendant-appellant.
Robert M. Hill, Jr., Florence, for plaintiff-appellee.
SHORES, Justice.
The Honorable John R. Brown, Chief Judge of the United States Court of Appeals, Fifth Circuit, recently remarked that Barnes v. Atlantic & Pacific Ins. Co. of America, 514 F.2d 704 (5 Cir. 1975), was an historic case, "... not because of the intrinsic difficulty of the issues, but because this is our first published opinion utilizing the certification provisions recently adopted by the citizens of Alabama." (Emphasis Supplied)
This, too, is an historic case, since it is the first case from this court answering questions certified to us under the provisions of the new Judicial Article, Art. VI, § 140(b)(3).
Justice Brandeis, writing one of his last opinions, said in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938):
That doctrine requires a federal court, in a case based upon diversity of citizenship between the litigants, to apply the law of the state wherein it sits. Since each state is sovereign under our system of government, this court is the final authority *254 on Alabama law. While the federal courts are considered the primary experts on National law, the state courts are the final expositors of the law of their respective jurisdictions. The burden placed on the federal courts by Erie is frequently a heavy one, particularly where the law of the state is unclear or has not been expressed. On occasions, those courts are put in the awkward position of having the state courts "overrule" them by subsequently deciding a question contrary to the conclusion reached by the federal court.
In recognition of this problem and in an effort to ameliorate it, this court adopted, pursuant to Art. VI, § 140(b)(3), Constitution, ARAP 18(a), which provides:
We are confident that this procedure will be utilized by the Federal Bench for the purpose for which it is intendedto allow the federal court to obtain authoritative answers to difficult questions of Alabama law. In the words of Professor Philip B. Kurland, reproduced in 24 F.R.D. 481, 490, perhaps the process can serve as a "... demonstration of cooperative judicial federalism which would justify those of us who think that the federal form of government has a contribution to make toward the preservation of justice in this country."
When properly utilized, we think this intersovereign certification procedure can have that effect.
The following was certified to us on March 17, 1975:
"CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF ALABAMA, PURSUANT TO ARTICLE 6, § 140(b)(3) OF THE ALABAMA STATE CONSTITUTION, AS AMENDED 1973
"To The Supreme Court of Alabama and the Honorable Justices thereof:
"It appears to the United States Court of Appeals for the Fifth Circuit that this case involves questions or propositions of the law of the State of Alabama which are determinative of the cause, and there appear to be no clear controlling precedents in the decisions of the Supreme Court of Alabama. This court hereby certifies the following questions of law to the Supreme Court of Alabama for instructions concerning the same, based on the facts recited herein, pursuant to Article 6, § 140(b)(3) of the Alabama State Constitution, as amended 1973, as follows:
"The style of the case is Woddie E. Harrison, Appellee, v. Insurance Company of North America, Appellant, being case No. 73-3161, United States Court of Appeals for the Fifth Circuit, an appeal from the United States District Court for the Northern District of Alabama.
"2. Statement of the case.
"On December 21, 1972, Woddie E. Harrison, the appellee, filed his complaint against Insurance Company of North America [`INA'], the appellant, alleging that INA on October 1, 1965, insured plaintiff against loss resulting from bodily injuries caused by accident; that said insurance provided that one year after continuous total disability, INA will pay permanent total disability benefits of $50,000; and that on August 13, 1969, plaintiff suffered *255 an accidental injury which caused permanent and total disability.
"On February 21, 1973, defendant filed its answer alleging that the policy of insurance alluded to in the original complaint, dated October 1, 1965, had been duly executed by the Tennessee Valley Authority [`TVA'] (Harrison's employer) and INA as a group disability policy; that the policy of insurance sued on was renegotiated and replaced by a subsequent policy on October 1, 1966; that the 1966 policy was the only contract in force and effect; that the 1966 policy differed from the previous policy in that the 1966 policy excluded disability benefits for injuries for which benefits are payable under the Federal Employees' Compensation Act [`FECA']; that plaintiff is receiving disability benefits under FECA (this was later stipulated); and that plaintiff has not suffered a permanent total disability.
"Defendant's motion for summary judgment was denied on April 2, 1973. Thereafter on April 18, 1973, a trial on the merits commenced. At the conclusion of all the evidence the trial judge ruled as a matter of law that Alabama law applied to determine the rights and liabilities of the parties; that notice of the changed policy admittedly received by TVA did not constitute notice to Harrison; and that TVA was not the agent of Harrison for the purpose of receiving notice of the changed policy. The court submitted to the jury for determination the issues as to whether Harrison had notice of the changed policy and whether Harrison had suffered permanent total disability. In answer to five special interrogatories, the jury on August 20, 1973, returned its special verdict, in part, as follows: (1) plaintiff did not, prior to the accidental injury of August 13, 1969, receive a copy of the 1966 Certificate of Insurance or otherwise have notice of the change in insurance coverage, (2) INA did not take action reasonably calculated to provide insured employees with a copy of the new Certificate of Insurance or with other notice of the change in insurance coverage, and (3) as of August 13, 1970, plaintiff was completely unable as a result of said accidental injuries to perform his occupation as a machinist or to engage in any occupation or employment for which he was fitted by reason of education, training or experience.
"On April 26, 1973, the District Court entered its Opinion and Judgment based on the jury's special verdict and the applicable law, holding that the plaintiff recover of INA the sum of $50,000, together with interest and costs.
"Motion for Judgment Notwithstanding the Verdict and for New Trial was filed on May 4, 1973, and overruled on June 28, 1973.
"Notice of Appeal to the United States Court of Appeals for the Fifth Circuit was filed on June 28, 1973.
"Harrison is and has been a resident and citizen of the State of Alabama, and INA is a corporation incorporated under the laws of the State of Pennsylvania. TVA's home office is in Knoxville, Tennessee. The 1960 accident policy was executed by INA through its Vice-President and Assistant Secretary in the city of Philadelphia, Pennsylvania, and countersigned by an authorized representative of INA, in Knoxville, Tennessee. (See Exhibit S-1, page 514 of Appendix.) The 1966 policy of insurance was executed by INA through its Vice-President and Assistant Secretary in the city of Philadelphia, Pennsylvania, but was not countersigned. (See page 523 of Appendix.)
"INA originally contracted with TVA to afford coverage to TVA employees in 1960. The evidence showed that coverage was afforded for eligible employees of TVA. TVA employees paid premiums to TVA through a payroll deduction system, and TVA forwarded the monies to INA in a lump sum.
*256 "Harrison, as well as other insured employees, applied for insurance coverage at TVA's Muscle Shoa'.s plant in Alabama. Harrison received a Certificate of Insurance in October 1965. The Certificate was handed to him on the job by one of the office personnel of TVA.
"Plaintiff was injured on August 13, 1969, while employed with TVA at the Wilson Dam Hydro plant in Muscle Shoals, Alabama. Harrison testified that the 1966 Certificate was received by him through the mail from TVA's office six or seven months after he was hurt.
"The original INA group master policy, Accident Policy SGA-420 covering insured TVA employees, was awarded by TVA to INA, under competitive bid, effective October 1, 1960. In 1963 this policy was renewed for a three-year period.
"On September 7, 1965, Harrison made application for said accident insurance in the principal sum of $50,000. INA issued Harrison a Certificate of Insurance, delivered to plaintiff by one of the office personnel of TVA and effective October 1, 1965.
"The original group master policy remained in effect without change in coverage until 1966, and included coverage for injuries for which benefits under the Federal Employees' Compensation Act were payable. In 1966 changes were negotiated, without competitive bid, between INA and TVA, whereby benefits under the original group policy would be denied for accidents occurring on the job and covered by the Federal Employees' Compensation Act. This new contract was made effective October 1, 1965.
"The insurance premium paid by the insured employees remained the same under the original policy and the 1966 policy.
"New Certificates of Insurance under the 1966 policy were printed on July 14, 1966, in INA's offices in Philadelphia, Pennsylvania, and mailed in bulk to INA's offices in Nashville, Tennessee, then mailed from Nashville to TVA's offices in Knoxville, Tennessee. INA mailed a sufficient number of certificates for distribution to all covered employees. INA kept no further records of the new Certificates after mailing same to TVA in Knoxville. No records were kept relating to the delivery of Certificates to TVA employees. There was no policy of surrendering an old Certificate if a new Certificate was issued. There was no record, or knowledge, of anyone having delivered the 1966 Certificate of Insurance to plaintiff Harrison.
"Harrison did not receive any notice of a change in the coverage of his 1965 Certificate until after his employment-connected accident. Some six or seven months subsequent to said accident he received the new INA Certificate of Insurance from TVA through the U.S. Mail.
"3. Questions to be certified.
"1. Under the Alabama law of conflict of laws, is the law to be applied to the insurance covering Harrison that of Alabama, Tennessee or Pennsylvania?
"2. If Alabama law applies, is the 1966 insurance contract effective as to the insured employee, Harrison, who received no notice of the new contract and its provisions, *257 there being notice to the policyholder-employer, TVA?
"The entire record in this case, together with copies of the briefs of the parties and certification in this court, are transmitted herewith."
Both Harrison and INA agree that the general conflict of laws rule provides that the law of the state wherein the contract was executed is determinative of the rights and liabilities of the parties to the contract. This is correct. Furst & Thomas v. Sandlin, 208 Ala. 490, 94 So. 740 (1922). However, the precise question as to what law governs with respect to group insurance has not been specifically answered in Alabama. In 43 Am.Jur.2d, Insurance, § 39, the following appears:
We hold that, under the facts of this case, the law of Alabama applies. Not only was the certificate issued and delivered to the employee in Alabama, but additionally, after INA issued the original group master policy and agreed to insure "eligible persons," "employees of TVA," Harrison completed an application for accident insurance in the principal amount of $50,000 on himself and $10,000 on his wife. The form which he signed, in Alabama, is entitled "APPLICATION FOR ACCDENT INSURANCE AND PAYROLL DEDUCTION AUTHORIZATION." The body of the certificate of insurance issued pursuant to such application and delivered to Harrison in Alabama carries this language:
INA asserts that the document executed by Harrison in securing coverage and authorizing payroll deductions was not an "`application' in the legal sense of the word," but rather a more signing up for automatic coverage, and that contract of insurance was the master policy and "the certificate is practically insignificant."
This argument loses its force, however, when it is recognized that one must look to the certificate, and not the master policy, to determine the amount of coverage afforded. INA offered, for a given sum, to insure TVA employees who made application for such coverage and authorized payroll deductions for the payment of the premium. Harrison accepted that offer in Alabama; therefore, the contract was made in Alabama, Ingalls Steel Products Co. v. Foster & Creighton Co., 226 Ala. 122, 145 So. 464 (1932), and is governed by Alabama law.
In addition, Title 28, § 10, Code of Alabama 1940, provides:
and the policy itself proclaims:
Both our cases and statute dictate the application of the law of Alabama.
Having concluded that Alabama law applies, we next turn to the second question, i.e., is the 1966 insurance contract effective as to the insured employee, Harrison, who received no notice of the new contract and its provisions, there being notice to TVA, his employer.
Stated differently, the question is whether notice of the cancellation or termination of the 1965 policy and the issuance of a new one in 1966 was required to be given the insured and if so, was notice to his employer, TVA, sufficient.
Alabama law on this subject is unclear, which, of course, explains why the question was certified to this court by the United States Fifth Circuit Court of Appeals.
In Shears v. All State Life Ins. Co., 242 Ala. 249, 254, 5 So. 2d 808, 812 (1942), this court held:
Poch v. Equitable Life Assur. Society, 343 Pa. 119, 22 A.2d 590, was relied on in Shears, and the following statement from the Supreme Court of Pennsylvania was approved:
Shears was closely examined by the Court of Appeals in Metropolitan Life Ins. Co. v. Korneghy, 37 Ala.App. 497, 71 So. 2d 292 (1954). In Korneghy, the insured employee received written notice of the termination of the group coverage, but contended that it could not be terminated without his consent. The Court of Appeals held that a group policy could be terminated without the consent of the insured but said:
This court, in Hill v. Metropolitan Life Ins. Co., 266 Ala. 285, 96 So. 2d 185 (1957), held that the Court of Appeals correctly construed Shears on the issue of consent of an insured to the cancellation of a group policy.
Meyerson v. New Idea Hosiery Co., 217 Ala. 153, 115 So. 94 (1927), has frequently been cited as contra to Shears and Korneghy. See 68 A.L.R.2d at 249.
Although admittedly confusing, Meyerson is readily distinguishable from Shears and Korneghy. In Meyerson, the employer, New Idea, bought group life insurance on its employees and notified them that it had done so. They were given the right to acquire additional coverage if as many as 75% of them agreed. More than 75% Did agree, including Meyerson, and authorized payroll deductions for payment of the premiums on this additional coverage. New Idea allowed the coverage to lapse without giving notice to its employees. Meyerson subsequently died and his widow beneficiary sued New Idea for breach of contract, contending that New Idea had a contractual obligation to continue to pay the premiums and thereby to retain coverage. The court held that she had failed to prove one of the essential elements of her contract count, i.e., that there was no proof that the undertaking to deduct the premiums and pay the insurer was other than a gratuitous undertaking by the employer, or stated differently, there was no proof that the employer received any consideration for this undertaking and, therefore, a failure of proof of one of the essential elements of the contract count.
The widow also sued New Idea for negligence in allowing the insurance to lapse without first giving notice to the plaintiff (beneficiary) or her husband. The trial court sustained demurrers to the negligence count. In affirming, this court said:
Thus, as we read Meyerson, it stands only for the proposition that in that case the beneficiary was unable to prove her contract count, in that there was no proof that the employer, in forwarding the premiums to the insurer, was acting other than gratuitously. Her negligence counts were defective in that the employer owed her no duty as a beneficiary to notify her that the policy had lapsed.
That is not the question in this case. The question here is whether the insurer has that duty and, if so, is it discharged by notice to the employer. We hold that the insurer does have that duty under Shears, and that notice to the employer is not sufficient.
Under the facts of this case, and we note that each case must depend upon its own facts, we think TVA was the agent of INA in so far as the notice issue is concerned. In All States Life Ins. Co. v. Tillman, 226 Ala. 245, 146 So. 393 (1933), on the agency question in a group insurance case, this court said:
The answer to Question No. 2, as certified, is No. The 1966 insurance contract is not effective as to Harrison who received no notice of the new contract.
All the Justices concur. | August 28, 1975 |
ff3ad7f6-4b74-4e84-ad44-c9d1de33e58f | Madison v. State | 318 So. 2d 337 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 337 (1975)
In re James MADISON
v.
STATE.
Ex parte STATE of Alabama ex rel.
ATTORNEY GENERAL.
SC 1337.
Supreme Court of Alabama.
August 21, 1975.
William J. Baxley, Atty.Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for petitioner, the State.
None for respondent.
FAULKNER, Justice.
Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Madison v. State, 55 Ala.App. 634, 318 So. 2d 329.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | August 21, 1975 |
4f58d1b5-d2ee-4237-8ccc-37387a88205b | Blevins v. State | 319 So. 2d 739 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 739 (1975)
In re James BLEVINS
v.
STATE.
Ex parte James Blevins.
SC 1401.
Supreme Court of Alabama.
September 11, 1975.
Wesley M. Lavender, Decatur, Michael E. Sparkman, Hartselle, for petitioner.
No appearance for the State.
SHORES, Justice.
Petition of James Blevins for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Blevins v. State, 56 Ala.App. 115, 319 So. 2d 734.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | September 11, 1975 |
158bd147-b2e9-4877-a75a-9120d690fc57 | Kircheis v. State | 323 So. 2d 421 | N/A | Alabama | Alabama Supreme Court | 323 So. 2d 421 (1975)
In re Robert George KIRCHEIS
v.
STATE.
Ex parte Robert George Kircheis.
SC 1540.
Supreme Court of Alabama.
November 26, 1975.
D. Wayne Childress, Mobile, for petitioner.
FAULKNER, Justice.
Petition of Robert George Kircheis for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Kircheis v. State, 56 Ala.App. ___, 323 So. 2d 412.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | November 26, 1975 |
5d9ace09-1dd8-492c-ae78-f4cba3d3f015 | WATER W., G. & S. BD., ONEONTA v. PA Buchanan Cont. Co. | 318 So. 2d 267 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 267 (1975)
The WATER WORKS, GAS & SEWER BOARD OF the CITY OF ONEONTA, INC., a corporation
v.
P. A. BUCHANAN CONTRACTING CO., a partnership, etc., et al.
SC 1168, 1169.
Supreme Court of Alabama.
July 31, 1975.
Simmons, Torbert & Cardwell, Gadsden, for appellant.
Spain, Gillon, Riley, Tate & Etheredge and H. H. Grooms, Jr., Birmingham, for appellees.
MERRILL, Justice.
These appeals are from judgments granting the motion of United States Fidelity & Guaranty Company (USF&G), a third party defendant, for a summary judgment in cross-claim against it by The Water Works, Gas & Sewer Board of the City of Oneonta, hereinafter referred to as the Board. We affirm.
*268 In this case, we do not perceive any genuine issue as to any material fact, ARCP 56(c), and the only question presented is a question of lawwhether, under the facts, USF&G is liable to the Board under the public works Completion and Performance Bond which it made for P. A. Buchanan Contracting Company, hereinafter referred to as Buchanan.
In August, 1952, Buchanan entered into a contract with the Board for the construction of a natural gas system for the City of Oneonta. USF&G executed the statutory public works Completion and Performance Bond and the Labor and Materials Bond. Goodwin Engineers of the South, Inc. and J. W. Goodwin Engineering Co. (also third party defendants) were the project engineers.
Buchanan completed the work; it was approved and accepted and Buchanan was paid in full under the terms of the contract in 1953.
On March 7, 1969, some 16 years later, a pipe exploded and damaged a building owned by Dorothy Gartrell. Her suit is S.C. 1168. Her husband, Dr. L. S. Gartrell, was a tenant in the building and his suit is S.C. 1169. The basis of each suit against the Board, Buchanan and the engineers was that the pipe was negligently laid and as a proximate consequence the building was damaged, and in S.C. 1169, Dr. Gartrell's practice was disrupted and records destroyed.
The Board filed a third-party summons and complaint against Buchanan, USF&G and the engineers. The engineers also filed cross-complaint against USF&G. USF&G filed a motion for summary judgment accompanied by affidavits. The Board filed its opposition to the motion.
The trial court found in favor of USF&G as to the cross-claims of the Board and the engineers, and rendered a summary judgment in favor of USF&G as to the Board and the engineers. Only the Board appealed.
The Board's position is expressed in brief as follows:
The undisputed evidence is that the bond in question was required and given under the provisions of Tit. 50, § 16, Code 1940, which provides in pertinent part:
It is undisputed that these requirements were met.
This statute, Alabama's public works bond statute, enacted in 1927 and *269 amended in 1935, is patterned after the Miller Act, Tit. 40, §§ 270a & 270b, U.S.C.A. In State v. Southern Surety Co., 221 Ala. 113, 127 So. 805 (1930), this court, after comparing our statute with the federal statute in parallel columns, stated in part:
******
That decision was followed in National Surety Corporation v. Wunderlich (8th Cir.), 111 F.2d 622 (1940), where our public works statute was being construed and applied.
It is clear that a public works performance bond required by Tit. 50, § 16, carries with it the federal interpretation of the Miller Act.
This court has held that even when a bond under § 16 is not literally in statutory form, if it was given "for the purposes named in the statute and accepted and acted upon as such," the statute will be read into the bond. Royal Indemnity Co. v. Young & Vann Supply Co., 225 Ala. 591, 144 So. 532. And in American Casualty Co. of Reading, Pa. v. Define, 275 Ala. 628, 157 So. 2d 661, this court said:
A public works bond surety is not liable to third parties for injuries caused by negligence of the contractor-principal. The general rule is stated in 63 C.J.S. Municipal Corporations § 1172, p. 859:
Many federal court cases support this principle, some of which are: United States v. Fidelity & Deposit Co. of Maryland (D.C., La.), 144 F. Supp. 322; United States v. Mass. Bonding & Insuring Co. (6th C.A.), 18 F.2d 203; United States for use of Moran Towing Corp. v. Hartford Accident & Indemnity Co. (D.C.R.I.), 204 F. Supp. 353, and Tri-State Insurance Co. v. United States (8th C.A.), 340 F.2d 542.
In Stearns Law of Suretyship, 5th Ed., § 8.13, p. 269, the following appears: "Attempts have been made under statutory bonds to hold the surety for torts of the contractor or his employees. These attempts have been uniformly unsuccessful."
*270 All the authorities cited supra deal with either the performance bond or the labor and materials bond required by Tit. 50, § 16. These bonds are not public liability and property insurance.
The undisputed evidence is that Buchanan "took out a policy of public liability and property damage insurance with Liberty Mutual Insurance Company" and that this "policy remained in force and effect throughout the construction of the gas system in question." It is also undisputed that USF&G did not furnish any liability insurance but furnished only the completion and performance bonds and the labor and materials bonds and that no claim had been made on either of the bonds either against the contractor Buchanan or USF&G in connection with completion and performance or payment for labor and materials.
The contract between the Board and Buchanan provided in part:
"1.15 SAFETY PRECAUTION AND INSURANCE COVERAGE:
The completion and performance bond (Board's Exhibit "C") executed by the contractor and USF&G read:
This is an ordinary performance bond required under Tit. 50, § 16.
The common practice of referencing in the surety bond the construction contract between the Board and the contractor does not change a Tit. 50, § 16 statutory performance and completion bond into either a common-law bond or a liability insurance policy for the payment of tort claims. United States v. Mass. Bonding & Ins. Co., supra; United States for use of Moran Towing Corp. v. Hartford Accident & Indemnity Co., supra; Kniess v. American Surety Co. of New York, 239 Wis. 261, 300 N.W. 913.
The trial court correctly held that, as a matter of law, the motion for summary judgment was proper in this case.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | July 31, 1975 |
bab29785-64b1-49f9-8e88-aa8b0dca2988 | Seaboard Coast Line Railroad Company v. Gillis | 321 So. 2d 202 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 202 (1975)
SEABOARD COAST LINE RAILROAD COMPANY et al.
v.
W. L. GILLIS, Jr.
SC 877.
Supreme Court of Alabama.
August 28, 1975.
Rehearing Denied November 6, 1975.
*204 Henry E. Simpson, Birmingham, for appellants.
*205 Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
JONES, Justice.
This is an appeal by Seaboard Coast Line Railroad Company, Louisville & Nashville Railroad Company, and Clinchfield Railroad Company from an adverse judgment based on a suit by William L. Gillis, under 45 U.S.C.A., §§ 11 (Hand Brake Act) and 51 (Federal Employers' Liability Act).
Clinchfield is a partnership whose sole partners are L&N and Seaboard. Service was obtained on L&N and Seaboard and they each filed a general appearance. Clinchfield was served by leaving a copy of the complaint with Charles B. Clegg, office manager of L&N in Birmingham, and H. H. Hollingsworth, local freight agent for L&N and Seaboard. Clinchfield's motion to quash service, contesting the service through agents of L&N and Seaboard, was denied.
When injured, Gillis was employed by Clinchfield in Virginia. His job, as a signal communicator and electrician, required him to use a company motorcar to reach places that were otherwise inaccessible except by rail. At the time of the accident, Gillis had been using the same motorcar for approximately three years. Clinchfield maintained no regular maintenance on these motorcars, but provided service upon request. The car could be stopped in either of two ways, either by pushing a brake lever forward, or by a process of stopping the engine, reversing it and starting it again, thereby causing the wheels to reverse their forward motion.
Gillis testified that he was not a mechanic, but that the brake lever was working the morning of the accident. Twice immediately prior to collision the brake lever stopped or slowed the car. The third time Gillis attempted to stop the lever jammed, resulting in brake failure. Gillis attempted to reverse the engine, but collided with the caboose of a standing train before the car could stop. Gillis suffered a fractured skull and foot injuries as well as a ninety per cent permanent disability to his wrist. The jury awarded damages of $150,000.
Three issues are before this Court for consideration. First, with respect to service of process, what is the legal effect of the internal organization of the Clinchfield partnership? Second, is an employer liable under FELA where the sole act of negligence by the employer proximately causing plaintiff's injuries is the failure to conduct a preventive maintenance schedule? Third, does the proof of such alleged negligence present a jury question under either FELA or the Hand Brake Act as to all three appellants? We answer these questions adversely to the appellants; and, therefore, the judgment below is affirmed.
Appellants argue that Clinchfield is a separate "jural entity" from its only two partners, Seaboard and L&N. Our rejection of this argument is dispositive of two primary issues. First, whether service on Seaboard and L&N through their Alabama agents authorized to receive service was sufficient to obtain jurisdiction over Clinchfield. Second, whether there is a sufficient employer-employee relationship between Seaboard and L&N and Gillis to hold Seaboard and L&N liable for Clinchfield's violation of the Hand Brake Act and FELA.
As to the sufficiency of service issue, appellants primarily object to plaintiff's serving of process on the agents of the partners (L&N and Seaboard) rather than on the agents of the partnership (Clinchfield). It is important to note that service upon a corporation is only possible through service upon its officers or authorized *206 agents. Tit. 7, § 188, Code.[1] Since Clinchfield's only two partners, L&N and Seaboard, were both corporations qualified to do business in Alabama, service on their authorized agents was sufficient to obtain in personam jurisdiction over the corporations. Thus, both partners were personally served and personal service on the partners is service on the partnership. Tit. 7, § 141, Code.
On the liability of L&N and Seaboard for the violation by Clinchfield, appellants rely on Kelley v. Southern Pacific Company, 419 U.S. 318, 95 S. Ct. 472, 42 L. Ed. 2d 498 (1974), for authority that merely a close relationship between the employer of the injured employee and the railroad does not make the railroad liable under the applicable federal statute. The Kelley case dealt with an employee of a trucking company which was a wholly owned subsidiary of Southern Pacific. Such a fact situation does not control a case where two railroad corporations form a partnership to operate a railroad line. In the instant case, there is not merely a close relationship between L&N and Seaboard on the one hand and Clinchfield on the other, there is an identity. For the purpose of joint and several liability, L&N and Seaboard are Clinchfield.
The next issue is appellants' liability under 45 U.S.C.A., § 51. To establish liability under FELA, Gillis must show negligence on the part of his employer. A proper analysis of FELA liability must begin with an examination of the overall relationship between the railroad and Gillis and the resulting duty of the railroad to Gillis. The type of work and the restricted amount of discretion allotted to Gillis indicate that he was in the position of servant to the railroad. He performed maintenance work on signals, communications and electrical work such as flasher lights and crossing bells on designated sections of track. To reach the areas of track which needed work, he was assigned two pieces of railroad equipmenta truck and a motorcar. The railroad's position as sole owner and ultimate controller of the vehicles assigned to Gillis placed upon it a duty to maintain those vehicles in safe working order for the protection of Gillis. In recognition of this duty, the railroad gave him a credit card for the truck and hired a maintenance supervisor for the motorcar.
The contested issues of FELA liability are whether the railroad was negligent and whether the conduct of the railroad bore a causal relation to the accident and the resultant injuries. Both of these issues are for jury determination, but it is the function of the presiding judge at trial and this Court on appeal to decide whether the evidence introduced on either of the issues was sufficient to submit the case to the jury.
The negligence issue is comprised of two key-word elementsforeseeability and reasonable diligence.
To satisfy the element of foreseeability, it is not necessary for appellants to have been able to predict with accuracy the precise details of the accident. It is only necessary that there "were probative facts from which the jury could find that [appellant] was or should have been aware of conditions which created a likelihood that [appellee], in performing the duties required of him, would suffer just such an injury as he did."[2]Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957). Since Gillis was regularly required to operate the motorcar on railroad tracks which were simultaneously occupied by moving and stationary trains, it was manifestly foreseeable that a mechanical malfunction in the *207 motorcar could result in a collision with consequent injuries to Gillis.
As to the question whether the railroad exercised reasonable diligence to discharge its duty and avoid foreseeable injuries, evidence of the railroad's procedure for inspection, repair and maintenance of its vehicles is relevant. It is uncontested that the railroad did not conduct a trouble shooting system of inspection on its vehicles. The motorcar involved in the accident had been used by Gillis for three years and during that time no efforts were made to avert mechanical difficulties until specific problems arose. Instead of holding regular inspections, the railroad instituted a company policy that placed a duty on Gillis and other motorcar operators to report mechanical trouble when it arose by calling the maintenance supervisor.
The only trouble Gillis could spot was trouble which had already caused a malfunction. As he said on direct examination, "You run it until something got wrong with it and then you would notify the maintenance supervisor, and he would take the problem from there." On the occasion in question, a parked caboose intervened between the time Gillis discovered something wrong with the motorcar and his first opportunity to notify the maintenance supervisor. The railroad's failure to inspect or repair motorcars until a malfunction occurred unreasonably increased the risk that such an accident would eventually occur.
The railroad relies on two facts in its defense: First, after the accident, the cause of the jammed brakes was unknown; and, second, the possibility that a prior inspection would have revealed a defect is too speculative. If the railroad had actually conducted a regular inspection procedure, these arguments would go far toward discharging its duty of care. But, in retrospect, to say that if we had inspected, perhaps we would have found nothing, avails the railroad little. As to the railroad's duty to inspect, see Shenker v. Baltimore and Ohio Railroad Company, 374 U.S. 1, 83 S. Ct. 1667, 10 L. Ed. 2d 709 (1963).
From the evidence adduced on the appellants' inspection procedures, we conclude that there were sufficient probative facts before the jury to justify the finding that the railroad breached its duty to maintain its vehicles in safe operating condition.
On the issue of causation, the railroad's reply brief argues that there was no evidence that "but for" the failure to provide preventive maintenance the accident would not have occurred, nor was there any evidence that failure to conduct preventive maintenance was the proximate or direct cause of the accident. These tests, however, are not applicable to establish causation in actions brought under the FELA. In Rogers v. Missouri Pacific Railroad Co., supra, the United States Supreme Court held that "[u]nder this statute [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes . . ."
In this case, a jury question of causation can be made out easily. Gillis was injured because the brakes on the motorcar he was operating jammed and he was unable to stop before hitting a parked caboose. Although the precise reason for the malfunction will never be more than conjectural, a reasonable conclusion is that there was an existing defect in the brake system which a proper inspection by the railroad would have revealed and corrected. These facts make out a jury question under Rogers v. Missouri Pacific Railroad Co., supra.
The other theory for recovery argued by Gillis is under the "Hand Brake Act," 45 U.S.C.A., § 11. The language of the statute itself does not impose civil liability, but *208 only makes it unlawful to operate railroad cars in interstate commerce which are not equipped with certain safety appliances, including "efficient hand brakes." Case law, however, has judicially imposed civil liability on employers when their noncompliance with the act causes injury to employees. United States Supreme Court decisions have imposed an absolute duty on the railroads to comply with the Federal Safety Appliance Act, and the railroad's freedom from negligence is no defense. Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 70 S. Ct. 509, 94 L. Ed. 683 (1950); Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S. Ct. 226, 94 L. Ed. 236 (1949); O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S. Ct. 200, 94 L. Ed. 187 (1949).
The Alabama Supreme Court has recognized this rule. Shepherd v. Southern Railway Company, 288 Ala. 50, 256 So. 2d 883 (1970). To recover Gillis must show only that his injury was caused in whole or in part by the railroad's violation of the act. Central of Georgia Ry. Co. v. Greene, 202 F.2d 658 (5th Cir. 1953, Ala.). A motorcar such as Gillis was operating falls within the ambit of "cars" under the Hand Brake Act. Martin v. Johnston, 79 So. 2d 419 (Fla.), cert. denied, 350 U.S. 835, 76 S. Ct. 71, 100 L. Ed. 745 (1955). Since a violation of the Act is made out simply by a failure of the handbrakes without proof of specific defect or lack of due care, the fact that the brakes worked properly both before and after the accident will not relieve the employer of liability if there is proof that they failed at the time of the accident. Texas and Pacific Railway Company v. Griffith, 265 F.2d 489 (5 Cir. 1959); Spotts v. Baltimore & O. R. Co., 102 F.2d 160 (7 Cir.), cert. denied 307 U.S. 641, 59 S. Ct. 1039, 83 L. Ed. 1522 (1938); Atchison, T. & S. F. Ry. Co. v. Keddy, 28 F.2d 952 (9 Cir.), cert. denied 279 U.S. 856, 49 S. Ct. 351, 73 L. Ed. 997 (1928). In this case, the jury heard Gillis's uncontroverted testimony that the brake jammed. This was sufficient evidence for the jury to return a verdict that appellant violated the Hand Brake Act. Cause is obvious; Gillis could not avoid the collision because the brake on his motorcar did not work efficiently. On these facts, a jury question was made out on appellant's liability under 45 U.S.C.A., § 11.
The extent of damages under FELA is peculiarly a fact question for the jury. Louisville & N. R. Co. v. Dollar, supra; Louisville & N. R. Co. v. Steel, 257 Ala. 474, 59 So. 2d 664 (1952). Where, as here, the presiding judge fails to grant a new trial on the excessiveness of the jury verdict, the verdict is strengthened. Mordecai v. Cardwell, 270 Ala. 723, 121 So. 2d 898 (1960). On appeal, we will not overturn the verdict unless it clearly appears to have resulted from an intentional disregard of the evidence. Such is not the case. We therefore affirm.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] This case was tried under the rules existing prior to the adoption of ARCP. This statute has now been superceded by Rule 4, ARCP.
[2] See also the recent case of Louisville & N. R. Co. v. Dollar, 294 Ala. 276, 314 So. 2d 867 (1975). | August 28, 1975 |
678c7c3c-0aeb-4d2a-abe0-771232244881 | Speigner v. McGhee | 316 So. 2d 221 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 221 (1975)
In re James E. SPEIGNER
v.
Robert McGHEE, d/b/a McGhee Electrical Co.
Ex parte ROBERT McGHEE d/b/a McGhee Electrical Company.
SC 1344.
Supreme Court of Alabama.
July 17, 1975.
N.T. Braswell, III, Montgomery, for petitioner.
None opposed.
BLOODWORTH, Justice.
Petition of Robert McGhee, d/b/a McGhee Electrical Co. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Ex parte McGhee, d/b/a McGhee Electrical Co. (In re Speigner v. McGhee, d/b/a McGhee Electrical Co.), 55 Ala.App. 384, 316 So. 2d 215.
Writ denied.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | July 17, 1975 |
b2a441a3-d327-4f88-aa49-d7138027d78e | McDuffie v. Hooper | 315 So. 2d 573 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 573 (1975)
William S. McDUFFIE
v.
William F. HOOPER.
SC 1259.
Supreme Court of Alabama.
July 3, 1975.
*574 Charles S. Conley, Montgomery, for appellant.
Harry D. Raymon, Tuskegee, for appellee.
SHORES, Justice.
William F. Hooper, William S. Mc-Duffie, and Edward L. Pryce were, at all times material hereto, members of the faculty of the School of Architecture at Tuskegee Institute. On or about November 15, 1971, these three entered into an arrangement whereby they agreed to go into business together as a consulting firm. No written agreement was ever drawn up. The testimony was that the three decided to get in the business of consulting and agreed to split any profits from the business equally among them.
Shortly after the parties decided to go into business, a brochure was printed by McDuffie stating:
"WILLIAMS S. McDUFFIE, AIA ARCHITECT & ASSOCIATES "CONSULTANTS:
"EDWARD L. PRYCE LANDSCAPE ARCHITECT & PLANNER "WILLIAM F. HOOPER ENGINEER & ARCHITECT"
The brochure contained a resume of each of the three.
In December of 1971, an agreement was entered into by "William S. McDuffie & Associates" with the Housing Authority of the City of Tuskegee, whereby architectural inspection services were to be rendered to the Housing Authority for a sum of $44,907. There was no dispute in the evidence that, after deducting expenses, the profits were split three ways up until August, 1972, when McDuffie, who was the administrative member of the group, refused to pay Hooper any more.
Hooper filed suit alleging that the three had entered into a partnership whereby the parties formed a business under the trade name of "William S. McDuffie & Associates," and that the partnership agreement provided for a one-third division of the profits, less expenses. McDuffie denied that a partnership had been formed, contended that Hooper and Pryce were his employees, and admitted that the profits were divided equally among the three up until he discharged Hooper. Pryce and Hooper denied that they were employees of McDuffie and testified that their arrangement was to get into the consulting business on an equal basis, and that all profits would be split three ways.
Hooper's version of the arrangement was supported by testimony from a member of the Housing Authority and by the general superintendent of the construction firm which built the project for the Housing Authority. He testified that he dealt with Mr. Hooper almost every day during *575 the course of the project, and that Mr. Hooper approved or disapproved subcontractors, equipment and materials for the project. His testimony was that Mr. Hooper and Mr. Pryce were on the project continuously for the first four or five months, which he said was the critical period of a project such as this; and during this time they, and particularly Mr. Hooper, made all of the inspections and Mc-Duffie never did anything with regard to the project. At the time McDuffie informed the general superintendent that Hooper would no longer be making inspections, the project was, for all practical purposes, complete, and that any subsequent inspections were made by himself, the general superintendent of the general contractor.
Hooper sought an accounting and the balance of one-third of the profits from the project.
The trial court heard the evidence, and entered a final judgment in Hooper's favor, finding:
This appeal is from that judgment.
Appellant argues that the trial court erred in finding that the parties had engaged in a joint venture to carry out the contract made with the Housing Authority of the City of Tuskegee, saying in brief, "even though the complainant had alleged, merely the existence of a partnership," and argues that the evidence fails to show that a partnership agreement was ever entered into.
It is not entirely clear from the assignments of error, nor from appellant's brief, whether he is arguing that there was no allegation of a joint venture, and that therefore that issue was not framed in the pleadings, or whether he is arguing that the court erred under the proof in finding that there was a joint venture among the parties.
If his argument is founded on the former proposition, we think that is answered by Rule 15(b), ARCP, which provides:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, *576 even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . ."
The appellant in the instant case made no objection at any time during the course of the trial, nor was any post-judgment motion on this point filed. It is abundantly clear, from reading the record, that there was no misunderstanding by anybody about what the case was being tried on. The Committee Comments to Rule 15(b) indicate that a dramatic departure from former Alabama practice was intended by the rule, with the observation that:
". . . Under the rule where evidence is introduced or an issue raised with the express consent of the other party, or without objection from him, the pleadings `shall' be deemed amended to conform to such evidence. . . ."
It is difficult to understand just what appellant's point is. He would have been liable to the appellee whether the court found that the parties had entered into a partnership for the purpose of performing the contract with the Housing Authority, and would be equally liable if the court found from the evidence that they had entered into a joint venture agreement. Actually, there is evidence in the record from which the trial court could have concluded that the arrangement was either. Indeed, it is not always easy to distinguish between a joint venture and a partnership, as the following taken from 46 Am.Jur.2d, Joint Ventures, § 3, indicates:
and, at § 4:
"... The relations of the parties to a joint venture and the nature of their association are so similar and closely akin to a partnership that it is ordinarily held that their rights, duties, and liabilities are to be tested by rules which are closely analogous to and substantially the same, if not exactly the same, as those which govern partnerships. In fact, it has been said that the trend in the law has been to blur the distinctions between a partnership and a joint venture, very little law being found applicable to one that does not apply to the other."
See: Wilson v. Southside Shopping Center, 280 Ala. 615, 197 So. 2d 267 (1967).
At § 7, a joint venture is described as follows:
See also: Saunders v. McDonough, 191 Ala. 119, 67 So. 591 (1914); and Anderson v. Blair, 202 Ala. 209, 80 So. 31 (1918).
All of the evidence in this case, other than that offered by the appellee, supports the trial court's finding that these three people, all professors in the School of Architecture at Tuskegee Institute, agreed to combine their efforts and skills in a common undertaking, with the understanding *577 that they were to share equally in the profits of that undertaking. The appellant does not deny that they were to share the profits equally, but contends that both Hooper and Pryce were his employees. Both of them deny that they were his employees, but insist that they were all equal. The appellant supported his contention at the trial only with the brochure, which he had printed, and which carried his name as the principal, with the others listed as consultants. On appeal, he argues that Hooper could not have been a partner, nor have rendered architectural services other than as a consultant, for the reason that he, Hooper, was not, at the time the contract with the Housing Authority was entered into, registered as an architect by the State of Alabama. He argues in brief that Mr. Hooper obtained registration sometime subsequent to the date of the contract. The record, however, does not support appellant's argument. In fact, it indicates just the contrary. Appellant says in brief that the ". . . appellee had given false and misleading testimony at the trial, with reference to his registration as an architect, by obviously concealing the [fact] that he was not registered by the Board of Registration of Architects for the State of Alabama until March 15, 1972 . . ." This matter was not raised at the trial, and is, therefore, not before this court.
The trial court heard the evidence in this case. It concluded that such evidence indicated that there existed between the parties a joint venture agreement. All of the evidence in the record, save that offered by the appellant, supports that finding. It will not, therefore, be reversed here. Bonded Builders & Supply Co. v. Long, 288 Ala. 669, 264 So. 2d 518 (1972).
The judgment appealed from is, therefore, affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur. | July 3, 1975 |
8ec1c9d0-3405-4ef5-802d-cf50e2342eb8 | Dixie Electric Company v. Maggio | 318 So. 2d 274 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 274 (1975)
DIXIE ELECTRIC COMPANY, a corp., and Ralph Miller
v.
A. J. MAGGIO.
SC 964.
Supreme Court of Alabama.
July 31, 1975.
*275 James W. Garrett, Jr., and William B. Moore, Jr., Montgomery, for appellants.
Charles H. Volz, Jr., and Al J. Sansone, Montgomery, for appellee.
SHORES, Justice.
This appeal is from a judgment rendered on a verdict in a personal injury action brought by A. J. Maggio against Dixie Electric Company, a corporation, and Ralph Miller, its employee. Mr. Maggio sought damages for injuries allegedly resulting from negligence and wanton misconduct of the defendants. Both counts were submitted to the jury which awarded the plaintiff $43,000.
The facts out of which this litigation arose are:
On June 6, 1973, defendant Ralph Miller parked a Dixie Electric pickup truck in a parking space on South Court Street in Montgomery. The truck was parked in such a manner that the rear of the truck faced the public sidewalk. An extension ladder, which was positioned on top of the truck, projected beyond the rear of the truck and out over the public sidewalk. Mr. Maggio, walking north on the public sidewalk on South Court Street, struck his head on the protruding ladder and fell to the sidewalk, receiving severe injuries.
The rear wheels of the truck were on a crack, which was the point at which the sidewalk began. At the time of the accident, there was no flag or any warning device on the ladder. Immediately after the accident, Mr. Miller moved the truck forward and flagged the ladder.
*276 Appellants list seventeen assignments of error on this appeal, which raise two basic issues: (1) Whether the trial court erred in submitting the question of defendants' alleged wantonness to the jury; and (2) whether the trial court erred by admitting into evidence the testimony that Mr. Miller pulled the truck forward and placed a flag on the protruding ladder subsequent to the accident.
Appellants argue that the court erred in refusing their motion for a directed verdict on the wanton count. In brief, they say that "From an examination of the evidence... there is certainly not a speck of testimony which would show that Ralph Miller demonstrated a will or intention to injure Mr. Maggio." We agree. But, that is not the test of wantonness.
"`Wantonness' is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result...." Kilcrease v. Harris, 288 Ala. 245, 251, 259 So. 2d 797, 801 (1972); Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 162 So. 2d 455 (1964). One may be guilty of wanton misconduct without actual intent to injury anyone. Birmingham Railway, Light & Power Co. v. Murphy, 2 Ala.App. 588, 56 So. 817 (1911). In this sense, "... A willful or intentional act is not involved in wantonness ..." Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 461, 28 So. 2d 193, 194 (1946). "... wantonness may arise where the defendant has knowledge that persons, though not seen, are likely to be in a position of danger and with conscious disregard of known conditions of danger ..." Crocker v. Lee, 261 Ala. 439, 444, 74 So. 2d 429, 434 (1954). The knowledge requirement of wantonness "need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference." Kilcrease v. Harris, supra (288 Ala. at 252, 259 So.2d at 802).
In determining whether the plaintiff presented sufficient evidence to submit the wanton count to the jury, we must look to well-established guidelines. "... a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. ..." Kilcrease v. Harris, supra (288 Ala. at 252, 259 So.2d 802). The question should be taken from the jury only when there is not a scintilla of evidence in support of the controverted point. Additionally, in determining the sufficiency of the evidence, this court must presume the jury's verdict was correct, and will not set aside such verdict unless the preponderance of the evidence is so against the verdict as to convince this court that it is wrong and unjust. Kilcrease v. Harris, supra; Tallapoosa River Electric Coop., Inc. v. Burns, 271 Ala. 435, 124 So. 2d 672 (1960).
The jury in the instant case could conclude from the evidence that the defendant Miller (1) knew that the ladder projected beyond the truck body; (2) knew that it was possible for someone walking near the truck to strike his head on the ladder; (3) that knowing this, he parked portions of the vehicle on the public sidewalk in violation of a city ordinance; and (4) that he knew the rainy conditions would limit visibility of pedestrians using the sidewalk. Thus, we cannot say there was not a scintilla of evidence from which the jury could find that the defendant Miller acted in reckless disregard of the consequences of his act.
Whether the dangerous situation created by the defendant "... resulted from mere inadvertence or inattention, which would be nothing more than negligence; or whether ... from a conscious indifference to the likely or probable consequences, which would be wantonness, was a question for the jury." Culpepper & Stone Plumbing & Heating Co. v. Turner, supra (276 Ala. at 365, 162 So. 2d at 460.). *277 The court did not err in refusing to direct a verdict in favor of defendants on this count.
The second issue presented by this appeal concerns testimony that subsequent to the accident the truck was moved forward and a flag placed on the end of the projecting ladder. The appellants insist that this is evidence of a subsequent change or repair and, as such, is inadmissible to show negligence on the part of the defendant.
It is true that evidence showing repairs to machines, streets, or the like, after an injury, is generally not admissible to show negligence, II Wigmore on Evidence, Third Edition, § 283, page 151, but it is equally true that the condition of a place or thing at the time of an injury may always be shown.
The record shows that Mr. Maggio hit his head on the ladder which protruded over the sidewalk at around noon on June 6, 1973. It was cloudy and raining at the time. He fell to the ground, having fractured his hip. Mrs. Margaret Mock worked in the Wilson Building where the Dixie Electric truck was parked. She said someone came in to call the police and she went outside and saw Mr. Maggio lying on the sidewalk in the rain, and also saw Mr. Miller come out and pull the truck up and put a flag on the ladder. A Mr. Mitchell testified that he worked in the Wilson Building and, upon hearing that there had been an accident, went outside and observed the truck parked at the steps of the building and saw someone helping Mr. Maggio to the back seat of an automobile. A Mr. Pugh testified that he was walking down Court Street and saw a man helping Mr. Maggio into the back of an automobile and he, Mr. Pugh, called an ambulance and saw Mr. Miller move the truck forward and place a flag on the ladder. Mr. Miller affirmed these actions. All of this occurred minutes after the accident and before the police or ambulance arrived.
We think this evidence was admissible as a part of the res gestae.
At § 413, 31A C.J.S. Evidence, the rule is summarized:
Also:
In Alabama Power Company v. Adams, supra, the Court of Appeals had the following to say about the rule:
Alabama Power Company v. Adams, supra, refers to Vol. 1, Wharton's Evidence, 10th Ed., page 504, § 263, where the following *278 was approved by this court in Sexton v. State, 239 Ala. 287, 196 So. 744 (1940):
The acts here clearly fall within this rule. Mr. Maggio had just hit his head on the ladder and had fallen to the ground. As an immediate reaction to the emergency, some people were helping him to a nearby automobile, another called an ambulance, and others offered to help. Mr. Miller pulled the truck forward and put a flag on the ladder. All of this was one continuing transaction incident to and flowing from the "main event," the accident. It certainly tends to elucidate the scene and was, therefore, properly received as evidence.
The evidence complained of was properly admitted as a part of the res gestae and its admissibility is not precluded as argued by appellants as being evidence of subsequent change or repair.
The statement of Mr. Miller, made on deposition, and received in evidence that "I eased it ahead a little bit; how far, I don't know. And I put a red flag on it. I figured if one fellow cracked his head, I would put a red. flag on it and there wouldn't be two. So, that is all." It was admissible under another well-known rule of evidence:
The statement by Mr. Miller is not consistent with the position he took at the trial. There, it was his claim that the ladder did not extend so far over the sidewalk as to constitute a danger to pedestrians, and that the truck cleared the sidewalk. His declaration to the contrary was admissible under the above rule.
The judgment appealed from is, therefore, affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL and JONES, JJ., concur.
MADDOX, J., concurs in the result.
MADDOX, Justice (concurring in the result).
I concur in the result. I cannot agree that the placing of the red flag on the ladder after the accident was a part of the res gestae. The majority cites Sexton v. State, 239 Ala. 287, 196 So. 744 (1940), which defines res gestae as "the undesigned incidents of a particular litigated act." [Emphasis added]. The driver's statement that he put a red flag on the ladder because "[he] figured if one fellow cracked his head, [he] would put a red flag on it and there wouldn't be two," was not an "undesigned incident," in my opinion. In fact, his statement indicates he did it by design. Nevertheless, I think the fact that the red flag was placed on the ladder was admissible but for a different reason to show that there was no flag on the ladder at the time of the accident. However, *279 I think such evidence was permissible only to show the condition prior to the accident, and should not have been permitted as an admission of negligence. City of Montgomery v. Quinn, 246 Ala. 154, 19 So. 2d 529 (1944).
As I understand our law, such evidence is admissible under limited circumstances, if the trial judge restricts the effect of the evidence to avoid the risk of a party's misusing it. In other words, I believe that the trial court can limit, by instruction, the effect of such evidence, but I also believe that the better opinion is that the opponent of the evidence must ask for the instruction. See City of Montgomery v. Quinn, supra. The opponent of the evidence made no such request for a limiting instruction here. Consequently, I concur in the result reached by the majority that there was no error shown here. | July 31, 1975 |
4e3149a5-b2b5-49b5-881b-91e853b88471 | Coosa Marble Co., Inc. v. Whetstone | 318 So. 2d 271 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 271 (1975)
COOSA MARBLE CO., INC., etc., et al.
v.
Sarah S. WHETSTONE, as Executrix, etc.
SC 1143.
Supreme Court of Alabama.
July 31, 1975.
*272 A. H. Gaede, Jr. and Samuel H. Franklin, Birmingham, for appellants.
Bell & Lang, Sylacauga, for appellee.
FAULKNER, Justice.
Trustees of Coosa Marble Company, Inc. appeal from a denial of a motion for new trial, and a decree of the Circuit Court of Talladega County awarding real estate commissions to Whetstone. Whetstone filed a motion to dismiss the appeal because of its untimely filing. The case was heard on the motion and the merits. We grant the motion to dismiss.
*273 William D. Whetstone sought an accounting in equity for commissions due on a real estate agency contract. He died before the conclusion of the suit. On March 18, 1974, the trial court entered a decree in favor of the executrix of Whetstone's estate, against the trustees. On April 10, the trustees mailed a motion for new trial to the clerk. They received a return letter dated April 10 from the clerk, saying the motion had been received and filed May 11. The correct filing date was April 11. On June 5, the trial court heard the motion for new trial. Having received no word from the court, the trustees, by letter dated July 31, informed him the 90-day period under Rule 59.1, A.R.C.P. would expire August 11. The court denied the motion on August 9.
On January 22, 1975, the trustees notified the trial court of their appeal from his order. The appeal to this court was perfected on January 24. Whetstone filed a motion to dismiss on February 17, alleging the appeal was untimely filed.
The trustees obtained leave from this court to file a motion in the trial court under Rules 60(b) and 77(d) A.R.C.P. On March 14, that court denied relief by concluding the four months time limitation under Rule 60(b)(1) had expired; insufficient facts were shown to activate 60(b)(6), and 77(d) applied only to written orders. The trustees then filed in this court a motion for relief under 59.1; a motion to consolidate the appeal, the motion to dismiss, and the motion for relief. The motion to consolidate was granted.
Traditionally, the six months time limit for taking an appeal begins to run from the date of a court order denying a motion for new trial. W. E. Owens Lumber Co. v. Holmes, 277 Ala. 557, 173 So. 2d 99 (1965). This tradition was broken when Rule 59.1 A.R.C.P. was adopted. Under Rule 59.1, a motion for new trial shall not remain pending in the trial court for more than 90 days, without the express consent of all the parties, or unless extended by the appellate court to which an appeal of the judgment lies. A failure of the trial court to dispose of the motion within the 90 days constitutes its denial on the expiration of that period. Here, there was neither express consent of all the parties to extend the time, nor was the time extended by this court. Consequently, the motion was denied by operation of Rule 59.1 on July 10. The appeal period began to run from that datenot August 9, the date of the trial court's order. His order was a nullity. The appeal should have been perfected by January 11, 1975.
The motion to extend the time to file an appeal under Rule 59.1 was filed in this court on April 2, 1975. We construe the words, "unless extended by the appellate court to which an appeal of the judgment would lie" to mean, the motion must be filed in this court before the expiration of the 90-day period. Following our construction, the motion came here too late for our consideration.
The trustees contend that their failure to appeal timely was the result of excusable neglect. Therefore, relief should be granted to them under Rule 60(b). We do not agree. The relief sought by their motion was an extention of time to appeal. A Rule 60(b) motion is an attack on the judgment. The motion neither affects the finality of a judgment not tolls the time for appeal. Moore's Federal Practice, Vol. 7, 60.29, p. 414. An order denying a Rule 60(b) motion presents for review only the correctness of that order. The final judgment is not for review. Furthermore, the motion in this case was filed more than four months after the order. Thus, the provision of the rule relating to 60(b) was not met.
We conclude the trial court was correct in denying the motion. Moreover, there was no abuse of discretion for denying the motion based on the 60(b)(6) reason. The undisputed facts show the appeal was untimely filed because of the misdated *274 response of the clerk. The trustees knew the basic facts. They should have discovered the error.
The trustees further contend they should have relief under Rule 77(d). The trial court denied this motion on the ground that Rule 77(d) applies solely to written orders and judgments of the court. We agree. Here, the motion for new trial was denied by operation of Rule 59.1. There was no need for a written order by the trial court. The trustees concede there was no duty on the clerk to notify them of the automatic denial. They also concede they knew the date of the final judgment. Accordingly, we are of the opinion Rule 77(d) is inapplicable.
Appeal dismissed.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | July 31, 1975 |
9e5f8abe-eb3d-4a04-8ebf-bcff47d85dab | King v. State | 314 So. 2d 912 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 912 (1975)
In re Clete KING
v.
STATE.
Ex parte Clete King.
SC 1318.
Supreme Court of Alabama.
June 12, 1975.
Sanford D. Weiss, Montgomery, for petitioner.
ALMON, Justice.
Petition of Clete King for Certiorari to the Court of Criminal Appeals to review *913 and revise the judgment and decision of that Court in King v. State, 55 Ala.App. 306, 314 So. 2d 908.
Writ denied.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. | June 12, 1975 |
efdea502-d030-41cf-bee2-31e88b169848 | Consolidated Foods Corp. v. Water Wks. & San. S. Bd. | 319 So. 2d 261 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 261 (1975)
CONSOLIDATED FOODS CORPORATION, a corp.
v.
The WATER WORKS AND SANITARY SEWER BOARD OF the CITY OF MONTGOMERY, a corp.
SC 1193.
Supreme Court of Alabama.
September 25, 1975.
*262 Whitesell, Gordon & Gallion, Montgomery, for appellant.
Robert B. Stewart, Montgomery, for appellee.
JONES, Justice.
This is an appeal from the Circuit Court of Montgomery County from a ruling denying Consolidated Foods Corporation either injunctive relief of damages for a sewer line built across its property by the Water Works and Sanitary Sewer Board of Montgomery. We affirm.
By the late 1960's, the nationwide crusade to improve the environment and preserve our natural resources had reached Alabama. Federal agencies imposed deadlines against dumping industrial wastes into navigable rivers, and local sewer boards adopted plans to implement waste treatment.
In Montgomery, an area of great concern was the Alabama River. In an effort to divert sewage from the Alabama River to a waste treatment center, the Water Works and Sanitary Sewer Board of Montgomery planned to construct a new thirty-inch sewer main along the industrial shore of the river to collect raw sewage discharged from the industries. Since the proposed sewer main crossed privately owned property, pipeline easements were necessary before the project could begin. The acquisition and interpretation of one of these easements is the subject of this appeal.
On April 12, 1970, Consolidated Foods Corporation granted to the Water Works and Sanitary Sewer Board "an easement for the purpose of installing and maintaining under the ground a sanitary sewer in, upon, along and across" certain described property fronting the Alabama River in Montgomery. The Board paid Consolidated $5 in consideration for this grant, and agreed to connect Consolidated's lateral sewer line with the main line. Prior to this time, Consolidated's plant had been discharging its sewage directly into the Alabama River and evidence indicated that it would have cost $50,000 to build a private waste treatment plant sufficient to comply with federal pollution standards.
The Board constructed the line between November, 1970, and January, 1972. The portion of the line built across the Consolidated easement was set on pilings above the ground rather than "under the ground" as indicated by the grant.
At approximately the same time, the United States government was planning construction for Jones Lock and Dam to raise the water level of the Alabama River.
In January, 1970, three months before its grant to the Board, Consolidated granted a flowage easement to the Corps of Engineers. When the dam was completed and the land was flooded, a slough developed in Consolidated's new shore line. The Board's sewer line lies above the new water level, runs between the slough and the main body of the river, and, as a result, completely cuts off water access to the riparian property of Consolidated.
Consolidated did not object to the elevation of the pipeline throughout the one-year construction period and for a year and one half after completion. It finally did object in June, 1973, at which time it was negotiating with O. G. Pinkston of Montgomery for sale of the property.
*263 Pinkston is a real estate appraiser and speculator in Montgomery. He planned to purchase the waterfront property from Consolidated and resell it at a profit. Ultimately, he entered into two contracts of sale with Consolidated. He was fully aware of the sewer line when he negotiated these contracts. The first contract, dated December 8, 1972, was for $100,000. Between that date and the negotiation of the second contract, Consolidated filed an action to declare good title against the Board and for specific performance against Pinkston. This suit was dropped as a result of the renegotiation, and a second contract was entered for $72,000. The latter contract provided that Pinkston had the right to maintain a suit in the name of Consolidated to demand either removal of the above ground sewer main or damages for the reduced value of the waterfront property. The contract further provided that Consolidated would transfer any benefit it obtained from the litigation to Pinkston, but regardless of the outcome of the litigation, Pinkston was required to purchase the property for the full price of $72,000. The law suit before us was initiated by Pinkston, in the name of Consolidated, pursuant to that contract.
Consolidated Foods is a Chicago corporation. It has a division called Hollywood Brands which operates the plant in Montgomery affected by the sewage easement. Prior to Consolidated's approval of the sewage easement, officers of Hollywood Brands met in Montgomery with representatives of the Board and the Board's engineering company. At that meeting, the engineering company displayed plans for a sewer line which clearly indicated that the pipe was to be built above the ground. The agents of Hollywood saw these plans but told the Board that the plans would have to be forwarded to the Chicago office for approval. The drawings which were actually sent to Chicago did not indicate that the line was to be constructed on pilings above the water, but a letter which accompanied the plans and the unexecuted easement stated that the "proposed sanitary sewer main will be at an elevation of 126 feet or at the edge of the water when Jones Lock and Dam is completed." The normal water level is 125 feet.
After the construction was completed and during its negotiations with Pinkston, Consolidated consulted the Board about relocation the sewer line. The Board proposed two alternatives and submitted cost estimates in June, 1973. The first proposal to relocate the main undergroundcost an estimated $450,000. The second proposalto install an inverted siphon in the sloughcost between $225,000 and $250,000. It was acknowledged that these figures would be substantially higher today. There was also expert testimony that the sewer line reduced the market value of the riparian property from $137,000 to $60,000. The expert based his analysis upon the assumption that the best use for the property is warehousing. Without the sewer line, the property has convenient access to a railroad, an interstate highway, and the river. But with the sewer line between the slough and the main river, water access is completely eliminated.
The trial Judge based his denial of relief on three grounds. First, he found that the granting language, "installing and maintaining under the ground a sanitary sewer in, upon, along and across" the property, is ambiguous; therefore, he looked to extrinsic evidence such as the accompanying letter and plans and the conduct of the parties to interpret the grant. Second, he found that both laches and estoppel barred Consolidated. Third, he found that the equities were balanced.
We disagree with the trial Court's first finding that the grant is ambiguous. The basic rule of construction is premised on the principle that, absent the issue of prescription or adverse possession, an easement can be created only by a deed of conveyance. Camp v. Milam, 291 Ala. 12, 277 So. 2d 95 (1973).
*264 We look, therefore, to the written instrument to determine the scope of the grant. The language "in, upon, along and across" is not inconsistent with "under the ground." The former is only the prepositional litany denoting a right of access. It is general language granting the Board a right of ingress and egress across Consolidated's property. City of Elizabethtown v. Caswell, 261 S.W.2d 424 (Ky.App.1953); Commonwealth v. Warwick, 185 Pa. 623, 40 A. 93 (1898).
It is not necessary, however, to find an ambiguity in the grant before extrinsic circumstances become material. They are material to the trial Judge's finding of estoppel. We agree that Consolidated is estopped. The problem of when a litigant is estopped to assert his rights can never be answered with precision. The traditional elements of estoppel can only be meaningful in the context of individual fact situations.
The fundamental issue here is when did Consolidated learn that the Board intended to build the sewer line above the ground. In planning meetings at Hollywood's Montgomery office, the Board clearly explained the elevation of the line. Even assuming that this knowledge cannot be imputed to Consolidated, the letter accompanying the unexecuted easement gave the elevation of the sewer line and stated that it would be located at the water's edge when Jones Lock and Dam was completed.
This is not to say that the terms of the letter, or the letter combined with other extrinsic circumstances, effected any change in the scope of the grant clearly expressed in the deed of conveyance. It did operate, however, along with other circumstances, to put Consolidated on notice of the true location of the sewer line.
Consolidated's notice at the time of the grant, its acquiescence through the construction period, and its continued silence for one and one half years after the pipeline's completion strengthened the trial Judge's finding of estoppel. In fact, Consolidated did not object to the elevation of the pipes until Pinkston questioned it during his negotiations to purchase the property. Even in this law suit, Consolidated is not concerned with the pipeline's elevation since it has already contracted away its right to any benefit derived from the litigation.
Consolidated argues that mere silence as to rights of record does not give rise to estoppel. We need not decide whether that principle should be applied to the problem of diverging interpretations of easement language between the grantor and grantee, because this case presents additional elements of estoppel.
The first of these elements is Consolidated's permitting the Board to spend large sums of money to construct the pipeline on pilings above the water. An analogy to railroad easement cases provides the best Alabama authority in this area. Those earlier cases held that a landowner who allowed the railroad to construct tracks across his land under a colorable claim of right was estopped from evicting the railroad or interfering with its easement to operate trains. Hendrix v. Southern Railroad Company, 130 Ala. 205, 30 So. 596 (1900); Cowan v. Southern Railroad Company, 118 Ala. 554, 23 So. 754 (1897).
The large expenditures plus the public benefit accruing from track construction motivated this Court to favor the railroads in the face of legally valid claims of landowners. In the midst of our ecological crisis, a sewage easement in 1975 is as vital to the public welfare as a railroad easement was to the rapidly developing commercial society of the 1890s.
These considerations are indeed pertinent to the difficult judicial exercise of drawing lines within such an amorphous region of our law as equitable estoppel.
In addition to permitting the Board to expend the money, Consolidated accepted benefit from the sewer construction by connecting its own sewer discharge to the *265 line. An owner's acquiescence in his grantee's construction of a contract while accepting benefits under that contract has been recognized as a ground of estoppel in Alabama. McGowin v. Cobb, 249 Ala. 561, 32 So. 2d 36 (1947).
Thus, the duration of Consolidated's knowledge of the above ground construction, the expense incurred by the Board, and the benefit accepted by Consolidated, while if individually considered may have been unpersuasive, combine in this case to compel the conclusion that Consolidated is estopped from asserting its claim against the Board.
The trial Judge's third finding that the equities are balanced is also correct. This finding is supported by several facts. The sewer main was built in the public interest. A substantial portion of the benefit from it accrued to Consolidated, which would otherwise have been obligated to construct a private waste treatment mechanism. It is apparent from Consolidated's acquiescence that it was not concerned with the elevation of the line. The line did not interfere with its use of the property for a manufacturing plant. Only when the property was transferred to Pinkston, who proposed a different use, did the above ground location create a problem. Pinkston has already received compensation in the form of a reduced purchase price. He now comes to this Court, in the name of Consolidated, to prosecute a claim which Consolidated itself never chose to assert during the three years the pipeline abutted its property. To require the Board to remove the line or further compensate Pinkston for an encroachment he knew of when he bought the property, is against the public interest.
For the reasons stated, we will not disturb the trial Court's holding.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur. | September 25, 1975 |
3c1a302c-fc73-4f41-a3b3-faf8aa92ab8b | Raines v. State | 317 So. 2d 571 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 571 (1975)
In re Don RAINES
v.
STATE of Alabama.
Ex parte Don Raines.
SC 989.
Supreme Court of Alabama.
July 10, 1975.
COLQUITT, Circuit Judge:
Opinion, 294 Ala. 360, 317 So. 2d 559, corrected. Application for rehearing overruled. Motion to strike dismissed.
HEFLIN, C.J., and MERRILL, MADDOX and FAULKNER, JJ., concur.
JONES, SHORES and EMBRY, JJ., dissent. | July 10, 1975 |
d66ae2a0-da2a-4711-bf32-9227978744cf | State v. Hertz Skycenter, Inc. | 317 So. 2d 324 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 324 (1975)
In re STATE of Alabama
v.
HERTZ SKYCENTER, INC.
Ex parte State of Alabama.
SC 1166.
Supreme Court of Alabama.
July 17, 1975.
*325 William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for petitioner, the State.
Thomas B. Hill, Jr., Neal H. Acker, Montgomery, for respondent.
BLOODWORTH, Justice.
The question presented to us by the State's petition for writ of certiorari is:
The Court of Civil Appeals concluded that such sales are "wholesale sales," within the meaning of the Alabama Sales Tax Law, and are not subject to sales tax inasmuch as the food purchased by United was intended to be resold to United's passengers for their consumption in flight. We agree.
The Court of Civil Appeals held, 55 Ala.App. 481, 317 So. 2d 319, inter alia, viz:
* * * * * *
We affirm the Court of Civil Appeals' decision as to this aspect.
The Court of Civil Appeals also held:
Since the validity vel non of this holding is not raised by the petition for writ of certiorari, we do not undertake to examine the holding.
Finally, the Court of Civil Appeals held that the trial court erred in declaring that Revenue Department Regulation M5-053 conflicted with Civil Aeronautics Board regulations and was therefore invalid. Regulation M5-053 declares that the price of meals served by any transportation company (including airlines) are not required to be reported as "retail sales" by the company when "no separate charge is made" therefor and the meals are served "as a part of its transportation service."
Although the validity and applicability of this regulation is presented to us, in view of the fact that the regulation purports to regulate the reporting and collection of sales taxes (pursuant to Tit. 51, § 786(25)) by transportation companies, including airlines, and since United Air Lines is not a party to this cause, we decline to consider the validity or applicability of the regulation nor do we think the trial court or the Court of Civil Appeals could do so for the same reason. Doby v. State Tax Commission, 234 Ala. 150, 174 So. 233 (1937). See also Rogers v. Smith, 287 Ala. 118, 248 So. 2d 713 (1971).
The issue in the case at bar simply presents a conflict between two opposing interpretations of our sales tax statutes. Hertz, the caterer, says its sales to United were "wholesale sales" and it is not liable for collecting the sales tax. The State, on the other hand, contends the sales were "retail sales" and Hertz is liable for collecting the tax. United, the airline, is not a party to the lawsuit. (The conclusion is, of course, inescapable, that it will ultimately be the passenger who will pay the tax, regardless as to which party is made the collector. State v. T. R. Miller Mill Co., 272 Ala. 135, 130 So. 2d 185.)
To conclude, we agree with the Court of Civil Appeals in its conclusion that the sales from Hertz to United were "wholesale sales" and were not therefore subject to sales taxes.
The judgment and decision of the Court of Civil Appeals is affirmed, as corrected by this decision.
Affirmed, as corrected.
HEFLIN, C. J., and MERRILL, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.
MADDOX, J., not sitting. | July 17, 1975 |
c53a902a-9f4d-4657-9da5-d69aac990cbf | U-Haul Company of Alabama v. State | 316 So. 2d 685 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 685 (1975)
U-HAUL COMPANY OF ALABAMA
v.
STATE of Alabama.
SC 1070.
Supreme Court of Alabama.
July 10, 1975.
Rehearing Denied August 21, 1975.
*686 Carl E. Chamblee, Birmingham, for appellant.
No appearance for appellee.
EMBRY, Justice.
This is an action under Code of Ala., Tit. 29, § 248, to condemn a Ford automobile of defendant Boyles and a trailer of appellant U-Haul Company of Alabama. This appeal by U-Haul is from the order of the trial court condemning and forfeiting its trailer to the State because of use of same to illegally convey prohibited liquors, or beverages in violation of Tit. 29, § 247, of the Code.
A hearing of the claim of U-Haul seeking recovery of its trailer was held. The sole issue upon which evidence was taken was whether U-Haul could rebut the prima facie case of the State by showing that its agent had no notice or knowledge nor by reasonable diligence could have learned of the intended illegal use of the trailer. Without entering any specific findings the court entered an order condemning and forfeiting the trailer to the State. We affirm.
The question presented for review determinative of this appeal is summarized by appellant U-Haul in brief:
All the assignments of error ultimately go to this question which, stated differently, might well read: Is the innocence of the owner of property subject to forfeiture a defense to its condemnation?
The facts in the case are undisputed. They show that on August 8, 1974, Fennell Don Flemings leased the U-Haul trailer which is the subject of this litigation from an agent of U-Haul Company of Alabama, the Morris 76 Service Station, Morris, Jefferson County, Alabama. Flemings' driver's license showed that he was from Lawrence County, Alabama. The record affirmatively shows the manager of the station made no inquiry into the intended use of the trailer, although Flemings volunteered that he was going to use it to move some furniture in Cullman. The only inquiry made was whether the trailer would be used with the car Flemings was driving. Later in the same day the owner of the car, Sam Boyles, used it and the trailer to transport 190 cases of beer in Lawrence County (where possession and sale of alcoholic beverages is illegal). City of Moulton police seized the car and trailer and the proceedings under review here were commenced.
It is the law of Alabama that once the State makes out a prima facie case to show violation of the statute which prohibits the transportation of illegal liquors, the seizure, condemnation, and forfeiture of the vehicle used is permitted. An owner-claimant to a vehicle must prove he or it had no knowledge of the illegal use of the vehicle and by the exercise of reasonable diligence could not have obtained knowledge of such intended use. Alabama Discount Corp. v. State ex rel. Stephens, 271 Ala. 338, 123 So. 2d 416.
And this is the rule to which we have consistently adhered. Alabama Discount Corp., supra, and cases cited therein. The crux of these cases is that where a lessee is unknown to his lessor then the lessor should make reasonable inquiry as to lessee's reputation and character before completing the transaction.
In the case now before us the record affirmatively discloses that no inquiry whatsoever was made by lessor U-Haul about lessee Flemings. This fact coupled with the uncontradicted testimony of two witnesses from Lawrence County that the general reputation of Flemings in Lawrence County was "bad" for transporting liquors leads us to conclude, as did the trial judge, that an order of condemnation and forfeiture was proper. We will not disturb that order on appeal.[1]Snyder v. State, 247 Ala. 278, 24 So. 2d 266; Riley-Akins Chevrolet Co. v. State, 224 Ala. 42, 138 So. 412; May v. State, 215 Ala. 16, 108 So. 863.
An excellent statement of the burden of proof which claimant must satisfy is found in Flint Motor Co. v. State, 204 Ala. 437, 85 So. 741:
Appellant contends that our forfeiture laws are violative of U.S.Const., Amend. XIV, since the trailer was used for a prohibited purpose by one not the lessee without the knowledge and consent of the lessor.
As we have already noted the lessor in this case took no action that reasonably could have been expected to prevent the proscribed use of the property. Upon consideration of that fact and all the surrounding facts in this case we find no constitutional objection to the forfeiture.
A further contention of appellant is that it was denied the right to a jury trial on its claim to the trailer and violence thereby occurred to due process as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States. Appellant likewise contends that its Seventh Amendment right to jury trial was violated.
Constitution of Alabama of 1901, Article 1, § 11, provides:
Section 11 does not afford a right to trial by jury in cases where that right did not exist at the time of its adoption in 1901. Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651. The Prohibition Act of 1919 providing for forfeiture and condemnation of vehicles used in transporting prohibited liquors is carried forward and embodied in § 247, Tit. 29; a statutory remedy is provided "* * * by petition in equity * * *" a remedy not extant in 1901. No right to trial by jury in proceedings under this remedy is afforded by § 11 of Const. of Ala., 1901, In re One Chevrolet Automobile, Senior v. State, 205 Ala. 337, 87 So. 592.
ARCP 38(a) simply places in the Rules and preserves the historic right to jury trial where that right existed at the time of adoption of our 1901 Constitution. Note the presence of the word remain in § 11. ARCP 81(a) (12) makes the Rules of Civil Procedure applicable to proceedings for forfeiture of contraband property to the extent such practice is not provided by statute.
What of the right-to-jury-trial contention under the Federal Bill of Rights?
When the opportunity was afforded U-Haul to rebut the State's case and by the evidence presented it failed to do so the burden which it bore was not sustained.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.
[1] In this regard we do not shirk our duty. Shropshire v. State, 254 Ala. 470, 48 So. 2d 776. Our judgment is the same as the trial judge, therefore complete discussion of the evidence is deemed unnecessary. | July 10, 1975 |
7c44a8ae-880d-4959-b3f6-ccb26067ac2e | Security Transactions, Inc. v. NELSON E. & P. CO., INC. | 314 So. 2d 304 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 304 (1975)
In re SECURITY TRANSACTIONS, INC., a corp.
v.
NELSON EXCASVATING AND PAVING CO., INC. a corp.
Ex parte Security Transactions, Inc., a Corp.
SC 1302.
Supreme Court of Alabama.
June 12, 1975.
Leo E. Costello, Birmingham, for petitioner.
EMBRY, Justice.
Petition of Security Transactions, Inc., a Corp. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Security Transactions, Inc., a Corp. v. Nelson Excasvating and Paving Co., Inc. a Corp., 55 Ala.App. 223, 314 So. 2d 297.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | June 12, 1975 |
f2aac66f-52d5-4022-be1e-4eaf567e12cb | Webb v. State | 314 So. 2d 116 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 116 (1975)
In re Joe Harvest WEBB
v.
STATE.
Ex parte Joe Harvest Webb.
SC 1278.
Supreme Court of Alabama.
June 5, 1975.
Guy F. Gunter III, Opelika, for petitioner.
SHORES, Justice.
Petition of Joe Harvest Webb for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Webb v. State, 55 Ala.App. 195, 314 So. 2d 114.
Writ denied.
HEFLIN, C. J., and MERRILL, JONES and ALMON, JJ., concur. | June 5, 1975 |
0bc11c7c-2f1d-4b9d-b8da-b5e77b7bab0f | Bennett v. United Auto Parts, Inc. | 315 So. 2d 579 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 579 (1975)
Jerry BENNETT
v.
UNITED AUTO PARTS, INC., a corporation, and A. B. C. Jack Woldert, Jr.
SC 1215.
Supreme Court of Alabama.
July 3, 1975.
*580 J. Huntley Johnson, Dothan, for appellant.
Lee & McInish, Dothan, for appellee, United Auto Parts, Inc.
Buntin & Cobb, Dothan, for appellee Jack Woldert, Jr., d/b/a Woldert Enterprises.
MADDOX, Justice.
Did the buyer give the seller adequate and timely notice under the Uniform Commercial Code? That is the question presented by this appeal.
Plaintiff, Jerry J. Bennett, bought two automobile jack stands from the defendant, United Auto Parts, for use in his automobile garage business. The jack stands were manufactured by Jack Woldert, Jr., d/b/a Woldert Enterprises of Tyler, Texas.
While repairing an automobile in his garage, plaintiff, Bennett, injured his hand when one of the jack stands collapsed, thereby causing the car to slip off the jack. Plaintiff was treated at a local hospital as an out-patient for a severe hand laceration and a fractured finger.
Plaintiff-buyer filed a suit against United Auto Parts, claiming breach of warranty. United defended against the claim, contending that, at most, plaintiff only gave it notice of an injury and that plaintiff never notified it of any breach of warranty, express or implied. United also filed a third-party complaint against the manufacturer of the jack stands, Jack Woldert, d/b/a Woldert Enterprises.
*581 Subsequently, United filed a motion for summary judgment and, in support of its motion, attached an affidavit of one of its employees and a deposition of the plaintiff Bennett. In his affidavit, United's employee, one Beasley, stated that "sometime later, probably a week or a month later, [i.e. after the accident], Jerry Bennett came into the store with one arm in a sling and a cast on his arm. I asked him what happened and he told me he was working on a car and car fell or slipped off the jack stand and pinned his arm down and broke it. He did not bring the stand in nor did he mention whether or not it had been damaged. He came back in the store several times since our conversation, but never said anything else about the accident or the jack stands."
In his deposition, plaintiff testified, in relevant part, as follows:
"Q Now, Jerry, do you know who you bought the jack stands from?
"A No, I don't. All I know, I bought them from United Auto Parts.
"Q All right. Did you ever go back out there and talk to them after this happened?
"A No sir.
"Q Did you ever
"A I just showed them what my handwhat them stands had done to my hand. That's all I said. You know
"Q You say you showed themyou showed them your injured hand?
"Q Well, what actually did you tell them?
"A That's all. Just talking. I didn't really, you know
"Q Well, you told them something about what happened, or did you
It is undisputed that approximately eight months after the accident, plaintiff's attorney wrote a letter to United, informing United that the jack stand had collapsed. The full text of the letter is not in the record, however.
The trial court granted United's motion for summary judgment. Plaintiff appealed. The critical question presented on this appeal is the adequacy of plaintiff's "notice" to the seller of the automobile jack stands.
Title 7A, § 2-607(3)(a), provides:
"(3) Where a tender has been accepted
On at least two occasions, this Court has held that the allegation of notice is a condition precedent to recovery in consumer as well as commercial cases. Page v. Camper City and Mobile Home Sales, 292 Ala. 562, 297 So. 2d 810 (1974); Smith v. Pizitz, 271 Ala. 101, 122 So. 2d 591 (1960). In Page, this Court held that written notice of a breach was not required by Title 7A, § 2-607(3)(a). There, this Court stated that the type of notice which was envisioned by our statute was contained in Comment 4 to § 2-607, which states, in part:
United Auto Parts does not think that the Page decision is dispositive of the question presented here. It says that Page only holds that written notice of a breach is not required. United argues that the issue presented on this appeal is not whether or not oral notice of the breach is sufficient, but whether or not the plaintiff gave to it notice of the breach at all.
The notice which Bennett gave United in this case is strikingly similar to the notice Mrs. Page gave to Camper City in Page. Additionally, plaintiff's attorney, even though it was approximately eight months later, notified United of the fact that the jacks had collapsed. Using Page as our authority, we think the notice given was sufficient to prevent the issuance of summary judgment.
United, as the moving party for summary judgment, had the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitled it to a judgment as a matter of law. On review, all reasonable doubts touching the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.
It is not the function of the trial court at the summary judgment hearing to resolve any genuine factual issue in ruling on the motion, all factual inferences are to be taken against the moving party and in favor of the opposing party. The appellate court will do likewise in reviewing the trial court's grant of summary judgment. Discretion plays no real role in the grant of summary judgment. The grant of summary judgment must be proper under the above principles or the grant is subject to a reversal. The trial court may, however, exercise a sound discretion in denying summary judgment, appropriate to the case at hand, although the movant may have technically shouldered his burden. Moore's Federal Practice Vol. 6, § 56.23, p. 2856.
We are of the opinion that the grant of summary judgment, in this case, was not proper.
After the trial court granted United's motion for summary judgment, Jack Woldert, d/b/a Woldert Enterprises, asked the court to dismiss the third-party complaint. The court granted Woldert's motion.
Woldert was made a party to the appeal. Woldert has filed a motion here to dismiss the appeal as to him on the ground that no appeal was taken from the court's order dismissing the third-party complaint. This is correct, but after an examination of the record, we are convinced that the motion to dismiss the third-party complaint was granted because the trial court had granted the original defendant's (third-party plaintiff's) motion for summary judgment. Since we have reversed the judgment of the trial court granting the motion for summary judgment, we are of the opinion that the ends of justice will best be served by reversal and vacation of the judgment dismissing the third-party complaint, since its dismissal was based upon the granting of the summary judgment which has now been overturned. See Isay v. Cameron, 285 Ala. 164, 229 So. 2d 916 (1970), and cases therein cited.
*583 The judgment of the trial court granting United's motion for summary judgment is due to be reversed and remanded.
Reversed and remanded.
HEFLIN, C.J., and MERRILL, JONES and SHORES, JJ., concur. | July 3, 1975 |
f6bc91e3-9fb3-4ca8-bf1c-3542f34df589 | Crowden v. State | 315 So. 2d 128 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 128 (1975)
In re Jerry Jerome CROWDEN
v.
STATE.
Ex parte Jerry Jerome Crowden.
SC 1334.
Supreme Court of Alabama.
July 3, 1975.
John W. Davis, III, Montgomery, for petitioner.
No appearance for respondent.
SHORES, Justice.
Petition of Jerry Jerome Crowden for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Crowden v. State, 55 Ala.App. 325, 315 So. 2d 122.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | July 3, 1975 |
b0445f36-f90c-43d7-be63-6c63f203e8e4 | Holcombe v. Whitaker | 318 So. 2d 289 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 289 (1975)
M. C. HOLCOMBE, Jr.
v.
Joan WHITAKER.
SC 909.
Supreme Court of Alabama.
July 31, 1975.
Rehearing Denied August 28, 1975.
*291 Roderick Beddow, Jr., Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee and cross-appellant.
SHORES, Justice.
This is an appeal from a judgment which was rendered on a jury verdict in favor of the plaintiff in the amount of $35,000. The defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court conditioned its overruling of the motion for new trial by requiring a remittitur from the plaintiff in the amount of $15,000. The remittitur was filed and the motion for new trial overruled. The defendant appealed from the original judgment and the plaintiff filed a cross-appeal, assigning as error the condition of a remittitur for the overruling of defendant's motion for new trial.
The plaintiff, Joan Whitaker, met the defendant, M. C. Holcombe, Jr., a medical doctor, in March or April, 1970. Shortly thereafter the two began seeing each other socially; and about a month later the defendant moved into the plaintiff's apartment, where they lived together for sometime. It was the plaintiff's testimony that the defendant told her he was a divorced man. Sometime after the defendant moved into the plaintiff's apartment, he invited her to accompany him to a medical convention in San Francisco. She did so, and testified that she was asked by the defendant to pose as Mrs. Holcombe at that meeting. Following the convention, the two flew to Las Vegas, Nevada, and were married there. They left Las Vegas and went to New Orleans for a "honeymoon" and finally returned to Birmingham, where they lived together as husband and wife for approximately a month. At about that time, Dr. Holcombe began seeing a woman he had been dating prior to his marriage to the plaintiff. He had previously told Miss Whitaker that he wanted to tell this woman personally about his having married. When the plaintiff objected to his resuming his relationship with this woman, he then told her that he was still married to his first wife. She then asked him to either have the marriage with her annulled or get a divorce from his first wife and *292 marry her legally. Her testimony was that the defendant said "he wasn't going to do either one."
To say the least, the relationship between Miss Whitaker and Dr. Holcombe began to disintegrate from this point forward. He moved out of the apartment, but came back from time to time, staying for as long as a week on at least one occasion. The plaintiff continued to ask him to get an annulment or to get a divorce from his wife and legally marry her. She went to the apartment occupied by the woman the defendant was then seeing again and found him there. Again, she had a conversation with him about getting an annulment. On that occasion he said "If you take me to court, I will kill you."
From that point on, the plaintiff testified that she began receiving telephone calls from Dr. Holcombe and from his lady friend all hours of the night. She also received anonymous calls.
There was other evidence to the effect that, after Dr. Holcombe threatened the plaintiff the first time, she moved to another apartment and got an unlisted telephone number. For a period of time the calls from Dr. Holcombe and his friend stopped. Then her apartment was broken into and some of her clothes were soaked with what later appeared to be iodine. Thereafter, the calls resumed. After the break-in, she had new locks put on the door and the windows, were nailed closed. She also had friends spend the night with her thereafter.
The plaintiff filed the instant suit in September, 1971. In October of that year, Dr. Holcombe went to her apartment. When she refused to let him in, he began to beat on the door, tried to get in, and again said "If you take me to court, I will kill you."
The complaint charges the defendant with fraud and misrepresentation in that he had fraudulently misrepresented to the plaintiff that he was unmarried and that, relying on such misrepresentation, she married him. The averments are that as a proximate consequence of the fraud, the plaintiff was injured and damaged as follows: "She suffered grievous mental anguish and humiliation, her nervous system and emotional system was permanently injured..." A second count claimed damages for assault.
Although the defendant assigns some sixty-odd grounds for reversal, he argues the following issues only:
The court should have granted his motion for a directed verdict on the fraud count, because he contends the plaintiff failed to offer any evidence that she had suffered any damage. It is the defendant's contention that proof of actual damage was necessary to the plaintiff's cause of action; that the plaintiff failed to prove such damage; and thus the fraud count should not have been submitted to the jury.
While this is the first case to come before this court seeking damages for fraudulently inducing one into an illegal or void marriage, we have long recognized, as actionable, misrepresentations made with intent to deceive, relied on by and resulting in damages to the injured party. Thus, we have no hesitancy in joining a number of states in expressly holding that when one wrongfully induces another into a marriage, by misrepresenting or concealing facts which render the marriage void, the person so deceived is entitled to an action for damages. Morris v. MacNab, 25 N.J. 271, 135 A.2d 657 (1957), the subject of an annotation found in 72 A.L.R.2d 956. See also Restatement of the Law of Torts, Vol. III, § 555 (1938). The defendant, however, argues that no recovery in such a case can be had for mental suffering alone but, in addition, there must be damages to the person, reputation or estate. In answering that same contention *293 made by the defendant in Morris v. MacNab, supra, the Supreme Court of New Jersey said:
We agree with this statement and find it consistent with the law in Alabama. See Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9, 9 So. 375 (1890).
The defendant also argues in connection with the issue of damage that the trial court erred in refusing evidence that, prior to this marriage, the plaintiff suffered from veneral disease, had an abortion, and had affairs with many other men. Of course, the defendant must face the general rule that prohibits evidence of general character as primary evidence. See, e.g., Phillips v. Ashworth, 220 Ala. 237, 124 So. 519 (1929). Yet, the defendant cites us to an exception to this rule, that is, if character or reputation becomes a matter in issue, evidence with reference to such a party's reputation or character is admissible. While this is a correct statement of the law, we do not find that the plaintiff's character was placed in issue in this case. She did not sue the defendant for fraudulently inducing her to have sexual relations with him; she sued him for fraudulently inducing her to enter into a void marriage with him. In Lester v. Gay, 217 Ala. 585, 587, 117 So. 211, 213 (1928), which, unlike this case, involved a claim by the plaintiff against the defendant doctor for an alleged indecent assault, we said:
The plaintiff's reputation or character was not in issue here; nor did she open the door for the defendant to attack her character. Therefore, such evidence was properly excluded.
The defendant next argues that the court erred in refusing to give a requested charge which sought to instruct the jury that intent to deceive was a necessary element in the plaintiff's cause of action. There was no error in refusing this charge, since the trial court adequately instructed the jury in its oral charge on this issue. In its charge to the jury, the court said:
"...
There is no error to reverse on this ground. Boise Cascade Corp. v. Lee, 291 Ala. 666, 286 So. 2d 836 (1973).
The next issue argued by defendant concerns the assault count. The plaintiff claimed that the defendant committed an assault when in June of 1971, she went to see him and tried to get him to get an annulment, he said "If you take me to court, I will kill you."; and again in October, 1971, after she had filed the instant suit on September 29, 1971, when he went to her apartment and beat on the door, tried to pry it open, and said again, "If you take me to court, I will kill you." (The complaint was amended to include this act.) The defendant claims this in no way can constitute an assault, because it was merely a conditional threat of violence and because no overt act was involved. In order to safeguard freedom from apprehension of harm or offensive conduct, the law provides an individual with a remedy at law. See Prosser, Law of Torts, page 37 (4th Ed. 1971).
An assault consists of "... an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented." Western Union Telegraph Co. v. Hill, 25 Ala.App. 540, 542, 150 So. 709, 710 (1933).
While words standing alone cannot constitute an assault, they may give meaning to an act and both, taken together, may constitute an assault. Prosser, supra (2nd Ed. 1955). In addition, words may negative an act in a manner that apprehension in such a case would be unreasonable. "On the other hand, a show of force accompanied by an unlawful or unjustifiable demand, compliance with which will avert the threatened battery, is an assault." 1 Harper & James, The Law of Torts, page 223 (1956). "... the defendant is not free to compel the plaintiff to buy his safety by compliance with a condition which there is no legal right to impose." Prosser, supra, page 40 (4th Ed. 1971). It is obvious that the defendant in the instant case had no right to impose the condition he did on the plaintiff; and we cannot say that this condition explained away his threat to harm her.
The defendant says his conduct cannot constitute an assault because there was no overt action taken by him. The evidence from the plaintiff was that the defendant was pounding on her door making every effort to get into the apartment, and threatening to kill her if she persisted in "taking him to court." We cannot say, as a matter of law, that this was not sufficient to arouse an apprehension of harm or offensive conduct. We think it was a jury question, as was the question of whether the defendant had the apparent ability to effectuate the threatened act.
The defendant next complains that the trial court erred in allowing evidence of various events from the time of the break between the plaintiff and defendant. The plaintiff was allowed to testify that, from the time she was threatened by Dr. Holcombe the first time and continuing for several months, she received frequent anonymous calls late at night, that the caller only made breathing sounds, and that sometimes the caller would simply hang up when she answered the telephone. She moved to another apartment and got an unlisted telephone number. The calls stopped until her apartment was broken into, at which time iodine was poured over her clothes. Thereafter the calls resumed.
The fact that the calls were made was admitted into evidence, not the content of such calls. Generally, in order to introduce *295 evidence of a telephone conversation, the identity of the alleged speaker must be satisfactorily established. Dentman v. State, 267 Ala. 123, 99 So. 2d 50 (1957). If, however, it is the fact that a call was made that is introduced, the test is one of relevancy, i.e., is it material to some issue in the case. See generally Annot. 13 A.L.R.2d 1409.
Under the circumstances of this case, we cannot reverse the trial judge for allowing this testimony. When Dr. Holcombe left the home of the plaintiff and returned to his former "girl friend," the plaintiff protested. It was her testimony, and apparently the jury believed it, that she thought he was her husband. When she objected, his answer was that he was already married. When she then beseeched him to either get a divorce and marry her legally or get their marriage annulled, she claims he said he was not going to do either, and that if she attempted to do anything about it he would kill her. From then on, the jury could have found that Dr. Holcombe and the lady with whom he was then living began a program of harassment, intimidation, and threats, which could have been construed to kindle fear in the plaintiff and to achieve what apparently the doctor wantedto keep her from doing anything about the void marriage, which he, according to the jury's verdict, had lured her into. According to the testimony offered on behalf of the plaintiff, the doctor succeeded in his efforts to frighten the plaintiff. She was fearful enough to ask friends to stay with her at night; never left the apartment alone after the threats on her life; had her brother-in-law nail the windows closed after the break-in of her apartment; and told one of her friends that she was afraid there might be poison in her coffee. We believe this testimony was relevant under the circumstances of this case. The defendant threatened to kill the plaintiff if she did something she had a legal right to do. We think the evidence of what occurred subsequent to his threats and emanating from them was relevant to the issues being tried.
We find no error to reverse, and turn now to the plaintiff's cross-appeal.
She complains of the trial court's condition of remittitur for the overruling of the defendant's motion for new trial. There is no question that the trial judge cannot substitute his own judgment for that of the jury in determining whether to order a remittitur. Central of Georgia Ry. Co. v. Steed, 287 Ala. 64, 248 So. 2d 110 (1971). To permit such a procedure would deny the parties their right to a jury trial. In addition, "... the authority vested in the courts to disturb the verdict of the jury on the ground of excessive damages is one which should be exercised with great caution ..." Airheart v. Green, 267 Ala. 689, 693, 104 So. 2d 687, 690 (1958). Yet this court has recognized that where the trial court has ordered a remittitur and refused to grant a new trial, a favorable presumption of correctness of that action is accorded. Birmingham Electric Co. v. Thompson, 251 Ala. 465, 37 So. 2d 633 (1948); Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So. 2d 386 (1960). Moreover, "Remittiturs are favored in proper cases for the promotion of justice and the ending of litigation." Southern Cement Co. v. Patterson, supra, at page 135, 122 So.2d at page 392. In reviewing such action, this court must be aware that the trial court was in a position to observe all of the witnesses who testified and other incidents which are not reflected in the transcript. We do not find error in this action. Airheart v. Green, supra.
Affirmed.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur. | July 31, 1975 |
0bceec54-2a66-46a2-98f0-c4e5b68c3081 | Clements v. Wheeler | 314 So. 2d 64 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 64 (1975)
Chandler CLEMENTS
v.
M. Wayne WHEELER.
SC 1079.
Supreme Court of Alabama.
June 5, 1975.
*65 Louis W. Scholl, Birmingham, for appellant.
J. H. Crow, III, Birmingham, for appellee.
JONES, Justice.
This appeal is from a judgment of the Circuit Court of Jefferson County in favor of the plaintiff-appellee, Wayne Wheeler, wherein his Bill for Sale and Division was granted.
Briefly, the facts are:
In 1968, Walter and Emma Barrett, the grantors, jointly executed a warranty deed conveying Lots 33, 34, and 35 in Block 84, Survey of Klondyke, to Chandler and Jean Clements as joint tenants with right of survivorship. In 1974, Jean Clements conveyed her one-half undivided interest in the aforementioned property to Wheeler. Chandler Clements assigns as error the order of the trial Court granting Wheeler's petition for sale and division.
The sole import of Clements' contention is that our prior decision in Nunn v. Keith, 289 Ala. 518, 268 So. 2d 792 (1972), should be overruled and Bernhard v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965), should be reinstated as the law of Alabama. Bernhard held that as between joint tenants with a right of survivorship, neither joint tenant's interest was salable without acquiescence on the part of the other joint tenant. Nunn overruled Bernhard and held that such joint tenancy with right of survivorship was destructible as at common law.
We commend counsel for both parties for the excellence of their briefs. After a careful reexamination of Bernhard and Nunn, we reaffirm Nunn.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur. | June 5, 1975 |
949ef2bf-c230-4a17-bb46-05963a8ef231 | Boswell v. Abex Corporation | 317 So. 2d 317 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 317 (1975)
In re Charles A. BOSWELL, etc.
v.
ABEX CORPORATION, a corp.
Ex parte Charles A. Boswell, as Commissioner of Revenue of The State of Alabama.
SC 1345.
Supreme Court of Alabama.
July 17, 1975.
William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue, and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for petitioner.
Steiner, Crum & Baker and M. R. Nachman, Jr., Montgomery, opposed.
*318 MERRILL, Justice.
Petition of Charles A. Boswell for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that court in Boswell, as Commissioner of Revenue of the State of Alabama v. Abex Corporation, 55 Ala.App. 477, 317 So. 2d 314.
Writ denied.
The Circuit Court of Montgomery County issued an alternative writ of mandamus to the Commissioner of Revenue ordering the Commissioner to refund $8,562.00 to the taxpayer. The Commissioner appealed and the Court of Civil Appeals affirmed.
In denying the writ in this case, we do not approve a statement made in the trial court's opinion and adopted by the Court of Civil Appeals. The statement reads:
In Southern Electric Generating Co., supra, the administrative construction had been the same for 25 years and in Haden, supra, for 22 years. This court approved the following in Hamm, supra:
The correct rule is that an administrative interpretation of the governmental department for a number of years is entitled to favorable consideration by the courts; but this rule of construction is to be laid aside where it seems reasonably certain that the administrator's interpretation has been erroneous and that a different construction is required by the language of the statute. State v. Wertheimer Bag Co., 253 Ala. 124, 43 So. 2d 824; Drennan Motor Co. v. State, 279 Ala. 383, 185 So. 2d 405; East Brewton Materials, Inc. v. State Department of Revenue, 45 Ala.App. 584, 233 So. 2d 751.
*319 Taxpayers have no vested right to rely upon an erroneous interpretation of the statute exempting them from taxation, and under Section 100 of the Constitution of Alabama of 1901, the taxing authority has no discretion in a matter of this kind. The reason for this rule is that in the assessment and collection of taxes, the State is acting in its governmental capacity and it cannot be estopped with reference to the enforcement of taxes, even when the taxpayer was advised that it was not responsible for a tax. Were this not the rule the taxing officials could waive most of the State's revenue. State v. Maddox Tractor & Equipment Co., 260 Ala. 136, 69 So. 2d 426; Crutcher Dental Supply Co. v. Rabren, 286 Ala. 686, 246 So. 2d 415.
The judgment of the Court of Appeals is correctly bottomed on the opinion in State v. United States Steel Corp., 281 Ala. 553, 206 So. 2d 358.
Opinion corrected and writ denied.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | July 17, 1975 |
52d08db7-98f6-4250-8702-5ddc3d979fb6 | Reeder v. State | 314 So. 2d 853 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 853 (1975)
Garner William REEDER
v.
STATE of Alabama ex rel. Ronald L. MYERS, District Attorney.
SC 1275.
Supreme Court of Alabama.
June 12, 1975.
Rehearing Denied July 17, 1975.
*854 Guy F. Gunter, III, Opelika, for appellant.
William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for appellee.
ALMON, Justice.
This is an action by the State of Alabama upon relation of the District Attorney of Lee County to condemn a 1972 Model Dodge automobile owned by Garner William Reeder. The action was brought under Tit. 22, § 258(57)(a)(4), Code of Alabama 1940, Recompiled 1958, which provides, inter alia:
Paragraph (1) refers to controlled substances which includes marihuana.
This proceeding is now controlled by Alabama Rules of Civil Procedure to the extent that the practice in such matters is not provided by statute. Rule 81(a)(12) ARCP.
The trial court entered judgment for the State condemning and forfeiting the automobile in question. Reeder, hereinafter called appellant, brings this appeal.
The first seven assignments of error are based on the action of the trial court in sustaining State's objections to questions of the appellant to State's witness, Lieutenant Ronnie Watkins of the Lee County Sheriff's Department. Assignment of error twelve is based upon the action of the trial court in allowing Lt. Watkins to testify that he discovered marihuana in the respondent's automobile under the authority of a search warrant dated January 22, 1974. Assignment of error nine is based upon the action of the trial court in condemning said automobile, where the State produced no evidence that said the automobile was used, or intended for use, to transport, or in any manner to facilitate the transportation for the purpose of sale or receipt of any controlled substance. The remaining assignments of error are based on the court's order dated April 23, 1974, on the grounds, inter alia, that the decree was contrary to the evidence in the cause and contrary to the law.
In view of our conclusion that the evidence was insufficient to support the judgment of forfeiture, we pretermit consideration of those assignments of error relating to the search warrant.
Lt. Ronnie Watkins, the only State's witness, testified that he obtained a search warrant authorizing the search of the appellant's residence. The information contained in the affidavit to secure the search warrant was imparted to Lt. Watkins by an unidentified informant. The affidavit contained hearsay allegations that the appellant had sold marihuana to the unidentified informant within a week prior to the date the search warrant was issued. Later *855 in this opinion we will comment on the admissibility of this hearsay evidence of sale at the condemnation trial as contrasted with the admissibility of hearsay evidence to establish probable cause for the issuance of a search warrant.
Armed with the search warrant, Lt. Watkins conducted a search of appellant's residence and yard surrounding the house. He testified that he found marihuana in the house; however, the record is not clear as to the amount. He further testified as follows:
On cross-examination, he testified:
At the conclusion of the State's case defense counsel moved to dismiss the action because of the insufficiency of the evidence. In overruling this motion, the court responded as follows:
The appellant testified that he was employed by West Point Pepperell as a truck driver. He stated that because of his employment he was away from home from six o'clock each morning until six fortyfive o'clock each evening and that he was not present at his home on the date the search was conducted. He further stated that he had not driven the automobile in question for ten days prior to this search and that he left the doors to this automobile unlocked. He stated that he owned a Ford pick-up truck which he used to drive to work and that he had no knowledge of the presence of marihuana in his automobile.
We are thus called upon for the first time so far as we are informed to construe the meaning of the phrase, "for the purpose of sale or receipt" within the context of the Forfeiture Section of the Controlled Substances Act.
Tit. 22, § 258(57)(a)(4)(iii), Code of Alabama, 1940, Recompiled 1958, provides "A conveyance is not subject to forfeiture for a violation of section 258(47)(c) of this title." It is interesting to note that in the 1958 Recompiled Code there is no such section as 258(47)(c). Also in the Acts of Alabama where the official statute appears there is likewise no subsection (c). Act No. 1407, Acts of Alabama, 1971, Sec. 401, p. 2395.
For a better understanding of this apparent legislative oversight, we look to the progenitor of our Controlled Substances Act.
Even upon a casual reading of the act in question it can be seen that it was patterned after the proposed Uniform Controlled Substances Act recommended by the National Conference of Commissioners on Uniform State Laws.
Those portions of Sec. 258(57), Code, supra, with which we are here concerned are identical to the proposed Uniform Act. As mentioned earlier there is no subsection (c) to our Sec. 258(47). We will then look to subsection (c) in the proposed Uniform Act to help us understand what the word, "receipt," means in our statute. Subsection (c) is as follows:
It can therefore be seen that the Uniform Law drafters intended to except from the forfeiture section those activities which relate to possession only.[1]
Our former transportation of narcotics act, Tit. 22, Sec. 255(1), Code, supra, *857 which was repealed by our present Controlled Substances Act, refers to both "receipt" and "possession"; whereas the act in question refers to "sale or receipt" and omits any reference to possession. We think it significant that the legislature failed to include possession.
In attempting to ascertain the legislative intent of a particular statute or provision therein, it is permissible to look to the law as it existed prior to such statute's enactment. City of Birmingham v. Hendrix, 257 Ala. 300, 58 So. 2d 626 (1952); State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So. 2d 509 (1963). It follows that where the express inclusion of a specific act or acts, here "sale or receipt", evidences an intent to exclude those acts not so carried over from a preexisting statute, here "possession", we should not attempt to read into the new statute such acts. Champion v. McLean, 266 Ala. 103, 95 So. 2d 82 (1957).
We conclude that the word, "receipt," as used in this statute means receiving for the purpose of sale or in some way to facilitate the sale of drugs. It does not mean possession merely. Statutes which authorize condemnation and forfeiture of property are highly penal in nature and must be strictly construed. Smithson v. Handley, 206 Ala. 353, 91 So. 447 (1921); Emerson v. State, 241 Ala. 383, 4 So. 2d 186 (1941); Armstrong v. State ex rel. Embry, 248 Ala. 124, 26 So. 2d 874 (1946); Satterfield v. Satterfield, 250 Ala. 245, 34 So. 2d 4 (1948).
We are of the opinion that the evidence in this case showed no more than possession and the State has failed to meet its burden of proof.
It should be noted that the only evidence of sale of marihuana was rank hearsay of an unidentified informant. It is proper to consider this type of evidence from a proven reliable source in determining probable cause to search. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). But this evidence is inadmissible at trial to prove a fact in issue.
Reversed and remanded.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.
[1] The added sanction of forfeiture of vehicles and other instrumentalities is unquestionably designed as a deterrent to the trafficking of controlled substances: "The reasoning is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and to deprive the drug trafficker of needed mobility." (Emphasis ours.) Handbook of the National Conference of Commissioners on Uniform State Laws, p. 259 (Port City Press, 1970). | June 12, 1975 |
eb2bbde8-28c6-4938-b049-3c0e85363274 | State Ex Rel. City of Birmingham v. City of Tarrant City | 315 So. 2d 583 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 583 (1975)
STATE of Alabama ex rel. CITY OF BIRMINGHAM and ex rel. George G. Seibels
v.
CITY OF TARRANT CITY.
STATE of Alabama ex rel. CITY OF BIRMINGHAM and ex rel. George G. Seibels
v.
CITY OF FULTONDALE.
SC 1126, SC 1126-A.
Supreme Court of Alabama.
July 3, 1975.
*584 James L. North, William M. Slaughter, Frank M. Young, III, Birmingham, for appellant.
James M. Tingle, Birmingham, for appellee Tarrant City.
Norris & Davis, Birmingham, for appellee City of Fultondale.
Robert S. Vance, Birmingham, for amicus curiae, City of Vestavia Hills, in support of appellees.
HEFLIN, Chief Justice.
The State of Alabama, on the relation of the City of Birmingham and its Mayor, George G. Seibels, brought two quo warranto proceedings. These two proceedings, which were combined for trial and appeal, contested the legality of three annexations of real property. Two of the annexations involved the City of Tarrant City and one involved the City of Fultondale. The circuit court entered judgments decreeing that the annexations were valid, and the City of Birmingham appeals. Those judgments are reversed and the annexations are declared invalid.
The cases were consolidated because the issues in the two cases are the same. The primary issuethe one this court finds determinativeinvolves a construction of Title 37, Section 137(1), Alabama Code of 1940, as amended (Recompiled 1958-1973 Cumulative Supplement). This section was adopted by the 1971 legislature (1971 Acts of Alabama, Act No. 2228, p. 3585), and reads in pertinent part as follows:
The wording to be construed is the phrase "and such property does not lie within the corporate limits or police jurisdiction of any other municipality."
The legislature long ago defined "police jurisdiction" and that definition now appears at Title 37, Section 9, Alabama Code of 1940, as amended (Recompiled 1958). That section provides:
In the cases now before this court, both Tarrant City and Fultondale attempted to annex territory under the provisions of Title 37, Section 137(1). On August 19, 1974, the city council of Tarrant City adopted Ordinance 571, "An Ordinance Extending the City Limits by Annexation of Certain Contiguous Property Located Within Section 33, Township 16, Range 2 West." The property described in Ordinance 571 was owned entirely by Birmingham Realty Company, whose president had signed the necessary petition requesting annexation. On September 16, 1974, the city council of Tarrant City adopted Ordinance 578, "An Ordinance Extending the City Limits by Annexation of Certain Contiguous Property Owned by Alabama By-Products Corporation." The property described therein was owned entirely by Alabama By-Products Corporation, whose president signed the necessary petition.
The Fultondale city council on November 8, 1974, adopted Ordinance 247, "An Ordinance Annexing Certain Property to the City of Fultondale Pursuant to the Authority Granted by Title 37, Section 137(1), Code of Alabama, 1958 as Recompiled, Approved October 1, 1971." The petition requesting annexation was signed by all the property owners, a group consisting of a corporation and three individuals.
Both Tarrant City and Birmingham have populations of over 6,000 persons, according to the latest federal decennial census (1970). Fultondale has a population of less than 6,000 persons, according to the same census. The territory described in the two Tarrant City ordinances lies entirely within three miles of the city limits of Tarrant City, and also lies entirely within three miles of the Birmingham city limits. The territory described in the Fultondale ordinance lies entirely within three miles of the Birmingham city limits, and at least a portion of it lies within a mile and a half of the Fultondale city limits.
The trial court, sitting without a jury, heard testimony concerning the extent to which each municipality had historically exercised its police powers within the three areas now in question. The court made the following specific findings in the Tarrant City case:
In the other case the court made essentially the same findings as to the relationship of Fultondale and Birmingham regarding the territory sought to be annexed by Fultondale. On this appeal Birmingham has *586 contended strenuously that these findings of fact are incorrect; however, it is not necessary for this court to consider that question.
Based upon its findings that Tarrant City, and not Birmingham, has in the past provided municipal services in the two areas sought to be annexed by Tarrant City, and that Fultondale, and not Birmingham, had in the past provided municipal services in the area sought to be annexed by Fultondale, the trial court concluded that these three areas did not lie in the Birmingham police jurisdiction. Based upon this conclusion, the trial court ruled that the three annexations were valid.
In entering its judgment that the annexations were valid, the trial court relied upon the opinion of this court in City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936), and the opinion of the Court of Appeals in Town of Graysville v. Johnson, 33 Ala.App. 479, 34 So. 2d 708 (1948), petition for cert. dismissed, 250 Ala. 507, 35 So. 2d 339 (1948).
The issue then is whether Birmingham's "police jurisdiction," as that term is used in the 1971 annexation statute, means "all adjoining territory within three miles of the corporate limits," or whether, as Tarrant City and Fultondale contend, it means only that territory within three miles of the corporate limits in which Birmingham has in fact exercised police power and performed municipal services.
The City of Homewood case, supra, dealt with a problem of double taxation. Title 37, Section 733, Alabama Code of 1940, as amended (Recompiled 1958), allows a municipality to tax businesses within its police jurisdiction (as did the predecessor to Section 733). Wofford Oil operated a service station within three miles of Birmingham's city limits and was taxed by Birmingham. When Homewood was incorporated, its three-mile limit also included Wofford Oil's business. In 1930 Homewood began taxing in its police jurisdiction. It is apparent that the problem here is not the same as that presented in City of Homewood. That case dealt with the peculiar situation where two competing municipalities attempted to tax the same business at the same time. The present case is not at all concerned with an attempted double taxation. In fact, the present case is not concerned with the conflicting exercise of any police powers. In City of Homewood this court considered the definition of "police jurisdiction" in the context of a conflicting exercise of the power to tax; this court's statements in that case about the extent of "police jurisdiction" cannot, therefore, appropriately be applied in the present context of an annexation dispute, a totally unrelated problem.
The case of Town of Graysville v. Johnson, 33 Ala.App. 479, 34 So. 2d 708 (1948), also dealt with a taxing problem. That case is likewise inapplicable in the present context of annexation.
Appellee Tarrant City also cites this court's decision in Roberson v. City of Montgomery, 285 Ala. 421, 233 So. 2d 69 (1970), as standing for the proposition that the term "police jurisdiction," as found in Title 37, Section 9, "is not to be construed as all encompassing." That case did cite City of Homewood v. Wofford Oil Co., supra, as holding that "Title 37, § 9, is not all encompassing." The Roberson case clearly was speaking of that section's grant of police powers to be exercised within the police jurisdiction. The statement relied upon by the appellee did not refer to that section's definition of "police jurisdiction." The Roberson case dealt with the question whether a city had been granted the power to zone outside its city limits but within its police jurisdiction. In Roberson this court wrote, at 285 Ala. 422, 233 So. 2d 69, "It was stipulated that both operations [junk yards sought to be regulated by the city] were located on land outside the corporate limits of Montgomery but within its police jurisdiction." In the present case we are *587 concerned with the definition of "police jurisdiction," and the Roberson case is not applicable.
Appellees Tarrant City and Fultondale rely primarily on the proposition of law that "There cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdictions, and privileges." In support of this proposition, they cite the City of Homewood and Town of Graysville cases, supra, and two cases from other states. But whether this proposition is correct or not, it would not answer the question presented here. This case does not deal with the conflicting exercise of "powers, jurisdictions, and privileges"; the question before this court is not whether both Birmingham and Tarrant City (or Birmingham and Fultondale) can exercise a certain power over the same persons at the same time. In fact, the question in this case could easily have arisen even if neither city had ever attempted to exercise any powers in the disputed areas.
After reviewing the authorities relied on by the trial court and those cited by the appellant, this court is not persuaded that the prohibiting language of the annexation statute under review here"such property does not lie within the corporate limits or police jurisdiction of any other municipality"is to be given a meaning different from its rather clear and unambiguous language.
It is apparent that the purpose of Title 37, Section 137(1) was to provide municipalities with a simpler and quicker method of annexing territory than the conventional methods which require election or legislative enactment. It is this court's opinion that the legislature determined that this simpler and quicker method should be available only for the annexation of territory where there was complete agreement about the annexation and where there was no possibility of annexation controversy. This seems to be a plausible explanation for the proviso that the annexed territory could not lie within the corporate limits or police jurisdiction of another municipality, as well as the requirement that all of the property owners sign the petition.
In construing a statute, the fundamental rule of construction is "to ascertain and effectuate the intent of the Legislature as expressed in the statute." League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167 (1974).
This court is of the opinion that the legislature intended "police jurisdiction" as used in the proviso to be defined by the objective standard of a three-mile (or mile and a half) limit given in Title 37, Section 9, and that the legislature intended to prohibit this method of annexation when the proposed lands to be annexed are located within the police jurisdiction of another city. This opinion is consonant with the legislative intent to provide a simple and quick method of annexation. This court does not think the legislature intended by the proviso that a city could annex land which lies within the police jurisdiction of another city by obtaining an adjudication that it had historically performed more municipal services or exercised more control in the area than had the other city. This court holds that the legislature intended by the proviso that in cases of overlapping police jurisdictions, as defined geographically, annexations must follow the conventional procedures.
The causes are reversed and the annexations are declared null and void.
Reversed and rendered.
MERRILL, MADDOX, JONES and SHORES, JJ., concur. | July 3, 1975 |
6f875835-af25-4508-ac05-6c40c30438eb | Gould v. Gould | 316 So. 2d 214 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 214 (1975)
In re Linda GOULD
v.
Arthur GOULD.
Ex parte Arthur GOULD.
SC 1332.
Supreme Court of Alabama.
July 10, 1975.
W.C. McCain, Tuscaloosa, for petitioner.
George W. Nichols, Jr., Tuscaloosa, for respondent.
*215 EMBRY, Justice.
Writ denied.
HEFLIN, C.J., and MERRILL, BLOODWORTH, FAULKNER, JONES, ALMON and SHORES, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially):
I concur in denying the writ solely because our review on certiorari, is limited, generally, to questions of law. By agreeing to deny certiorari, however, I do not wish to be understood as agreeing that the Court of Civil Appeals made correct findings of fact, or that the Court, by dicta in its opinion, correctly stated what is, or should be, the Alabama law in custody fights, when the evidence shows that the party having custody of a child of tender years is living openly in a state of sexual immorality. | July 10, 1975 |
bfac2c3b-256c-47ac-ac25-6b5d0621f904 | Associated Industries of Alabama, Inc. v. State | 314 So. 2d 901 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 901 (1975)
In re ASSOCIATED INDUSTRIES OF ALABAMA, INC., et al.
v.
STATE of Alabama.
Ex parte STATE of Alabama.
Ex rel ATTORNEY GENERAL.
SC 1300.
Supreme Court of Alabama.
June 12, 1975.
Rehearing Denied July 10, 1975.
*902 William J. Baxley, Atty. Gen. and George W. Royer and James S. Ward, Asst. Attys. Gen., for the State, petitioner.
MERRILL, Justice.
Petition of State of Alabama for writ of certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Associated Industries of Alabama, Inc., et al. v. State, 55 Ala.App. 277, 314 So. 2d 879.
Writ denied. By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy nor should our denial of the writ be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals. Ford Motor Credit Corporation v. Ditton, 292 Ala. 423, 295 So. 2d 412; Lowery v. State, 291 Ala. 787, 286 So. 2d 67; Cooper v. State, 287 Ala. 728, 252 So. 2d 108.
All the Justices concur. | June 12, 1975 |
2d5f1f53-9a41-4cdc-a1ed-52363bf2bc22 | Blackmon v. Chrysler Motors Corporation, Inc. | 318 So. 2d 286 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 286 (1975)
Lynn BLACKMON
v.
CHRYSLER MOTORS CORPORATION, INC., a corporation, and Beltline Chrysler Plymouth, Inc., a corporation.
SC 984.
Supreme Court of Alabama.
July 31, 1975.
McDermott, Deas & Coleman, Mobile, and Owen & Ball, Bay Minette, for appellant.
*287 W. Ramsey McKinney, Jr., Mobile, for appellee, Chrysler Motors Corp.
HEFLIN, Chief Justice.
The plaintiff-appellant Lynn Blackmon (plaintiff) appeals from a judgment of the trial court dismissing his action under Rule 12(b)(6) motions to dismiss filed by the defendants-appellees Chrysler Motors Corporation and Beltline Chrysler-Plymouth, Inc. That judgment of dismissal is affirmed.
This case arose from the fact that the defendant Chrysler Motors Corporation on June 23, 1971, ceased importation into this country of Simca automobiles. Simcas were made in France by a Chrysler subsidiary and for several years had been imported by Chrysler and sold by Chrysler dealers, such as the defendant Beltline Chrysler-Plymouth.
The plaintiff states in his complaint that on or about November 17, 1971, without knowledge that Chrysler Corporation had ceased importing Simcas, he purchased a new 1971 model Simca from defendant Beltline Chrysler-Plymouth. Plaintiff further states that both defendants were at the time of his purchase aware that Simcas were no longer imported and that the number of spare parts being imported had been substantially reduced. Plaintiff also alleged that had he known these facts he would not have paid the price he did pay for the 1971 Simca.
As finally amended, the complaint contains three counts, all based on the contentions that the two defendants fraudulently concealed this information from him.
The original complaint and both amended complaints showed on the face that the allegedly fraudulent concealment occurred on November 17, 1971. The original complaint in this case was filed on December 13, 1972, almost 13 months later. This state has a one-year statute of limitations on actions for fraud, Title 7, Section 26, Alabama Code of 1940, as amended (Recompiled 1958).
The plaintiff insists on this appeal that his action for fraud comes within the "saving clause" contained in Title 7, Section 42, Alabama Code of 1940, as amended (Recompiled 1958). That section provides:
The plaintiff contends on appeal that he only discovered the fraud in April 1972, when he had to wait an excessively long time for a spare part. However, nowhere in any of the pleadings filed in the trial court does the plaintiff mention that he brought suit within a year of discovering the fraud.
The original complaint was filed December 13, 1972, and contained two counts. After Chrysler Corporation's demurrers were sustained as to both counts, raising among other things the statute of limitations, and after the new Alabama Rules of Civil Procedure became effective, plaintiff was granted leave to amend on January 29, 1974. Plaintiff amended his complaint to add ten more counts each styled as a cause of action and each again showing on its face that more than a year had expired between the time of the sale and the time of the suit. No attempt was made in this amended complaint to show that the plaintiff came within the "saving clause" of Title 7, Section 42; no mention was made of his discovery of the fraud.
After these amendments, defendants Chrysler Corporation and Beltline Chrysler-Plymouth moved under Rule 12, ARCP, to dismiss the amended complaint for failure to state a claim upon which relief could be granted. Both raised among other things the ground that "It affirmatively *288 appears that the action is barred by the statute of limitations of one year in that the cause of action sought to be asserted affirmatively appears to have accrued on November 17, 1971, more than one year prior to the commencement of the action."
Both motions to dismiss were granted as to causes of action four through twelve but denied as to cause of action three. Both defendants then answered the remaining cause of action, again raising the affirmative defense of the statute of limitations.
Then the plaintiff, on April 12, 1974, received the court's permission to amend his complaint. The amended complaint deleted the third cause of action and amended the sixth, ninth, and twelfth causes of action. In this final form, each cause of action stated in the complaint again showed on its face that more than one year had passed between the sale of the car (and the allegedly fraudulent concealment) and the bringing of suit. Again, the newly amended complaint showed nothing to indicate that the plaintiff could, or sought to, fit his case within the provisions of the "saving clause" of Title 7, Section 42.
Defendant Chrysler Corporation on May 10, 1974, and defendant Beltline Chrysler-Plymouth on May 21, 1974, filed answers to the amended complaint, raising the affirmative defense of the statute of limitations, and on those dates filed motions to dismiss, which also raised the ground of the statute of limitations. On May 24, 1974, the trial court held a hearing and granted both motions to dismiss. There is nothing in the record showing an attempt or desire on the part of the plaintiff to amend his complaint, or to do anything else, so as to show that his case fit within the "saving clause" of Title 7, Section 42.
This case thus presents a problem similar to those answered by this court in McGruder v. B & L Construction Company, Inc., 293 Ala. 354, 303 So. 2d 103 (1974), and in Board of School Commissioners of Mobile County v. Reynolds, 294 Ala. 21, 310 So. 2d 876 (1975).
In McGruder the following was quoted from Wright & Miller, 5 Federal Practice and Procedure: Civil § 1357, p. 608:
McGruder also contains these words:
This court recognized in McGruder that "a motion for a summary judgment might, in some cases, be the safer method." While both defendants in the present case had also made motions for summary judgment, it cannot be said that the trial court erred in not ruling on them but instead dismissing the complaint, in view of the plaintiff's numerous opportunities to claim the exception of Title 7, Section 42.
In Board of School Commissioners of Mobile County, supra, it was explained why the rule applied in McGruder "is not as restrictive as it might first appear, nor * * * contra to the liberality to be accorded the Alabama Rules of Civil Procedure."
The dismissal in this case is further supported by dicta appearing in Associates Financial Services Company, Inc. v. First *289 National Bank of Mobile, 292 Ala. 237, 292 So. 2d 112 (1974). In that case this court, after answering a related problem arising under the old rules, stated:
The McGruder and Board of School Commissioners of Mobile County cases make it clear that a complaint showing on its face that the statute of limitations has run should not be dismissed without the plaintiff's being given a chance to amend so as to claim an exception. Here, the plaintiff had several opportunities to claim the exception and did not do so.
It should be noted that the holding is different in this case than it would have been before the adoption of the Alabama Rules of Civil Procedure, for at common law even where a complaint showed on its face that the limitation prescribed by the statute had expired, a demurrer would not lie since the plaintiff would have been prevented from pleading the exception which would have prevented the bar. Curry v. Southern Ry. Co., 148 Ala. 57, 42 So. 447; Tutwiler Coal, Coke & Iron Co. v. Wheeler, 149 Ala. 354, 43 So. 15.
The judgment of the trial court is due to be
Affirmed.
MERRILL, MADDOX, JONES and SHORES, JJ., concur. | July 31, 1975 |
227fbd3a-51b4-450d-95c7-c30ec0058bd0 | Jackson v. State | 315 So. 2d 136 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 136 (1975)
In re Joe Nathan JACKSON, alias
v.
STATE.
Ex parte Joe Nathan Jackson.
SC 1313.
Supreme Court of Alabama.
July 3, 1975.
Myron K. Allenstein, Gadsden, for petitioner.
No appearance for respondent.
SHORES, Justice.
Petition of Joe Nathan Jackson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jackson, alias v. State, 55 Ala.App. 334, 315 So. 2d 131.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | July 3, 1975 |
25cb673f-ae2a-43fe-a681-355eed23ca37 | Germaine v. Delaine | 318 So. 2d 681 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 681 (1975)
Carolyn GERMAINE et al.
v.
L. L. DELAINE et al.
SC 1140.
Supreme Court of Alabama.
August 21, 1975.
Atchley, Atchley & Cox, Chattanooga, Tenn., Erskine R. Lindsey and Hogan, Smith & Alspaugh, Birmingham, for appellants.
Grady W. Agee, Henry L. Klein, Memphis, Tenn., Pruitt & Pruitt and W. Roscoe Johnson, III, Livingston, Powell Lipscomb, Bessemer, for appellees.
FAULKNER, Justice.
This is an appeal from a decree of the Circuit Court of Sumter County, holding that an instrument between Sadie T. Phelps and Mary E. Hill, on 13 February, 1963, created a joint tenancy with right of survivorship. We affirm.
Because the construction of the deed is the principal issue, we show it in its entirety:
"KNOW ALL MEN BY THESE PRESENTS: That this Indenture made and entered into on this day by and between Sadie T. Phelps, party of the first part, and Mary E. Hill, party of the second part, WITNESSETH:
"THAT, WHEREAS, the said party of the first part owns and is in possession of a tract of land located in Sumter County, Alabama, which will be hereinafter described. The party of the second part is a cousin of the party of the first part, and the parties hereto have grown up together, are closely associated and devoted to each other. It is the desire of the party of the first part that the party of the second part share with her in the ownership and possession *682 of the said hereinafter described property, and that the title thereto pass to the survivor, in fee simple, at the death of the other.
"NOW, THEREFORE, the said party of the first part, for and in consideration of the love and affection which the said party of the first part has for the said party of the second part, the mutual benefits to be derived from the execution and delivery of these presents, and the sum of ONE AND NO/100 DOLLAR, cash to her in hand paid by the said party of the second part, the receipt of all of which is hereby acknowledged, has granted, bargained, sold and conveyed, and does hereby grant, bargain, sell and convey unto the said party of the second part, such interest as is appropriate for the said parties hereto to own, have and hold the said hereinafter described land equally, jointly, as tenants in common, with equal rights and interest in said land, and to the survivor thereof, in fee simple, said land being situate, lying and being in the County of Sumter, State of Alabama, and particularly described as follows, to-wit:
"Together with all and singular the tenements, hereditaments, rights, ways, privileges and appurtenances thereunto belonging or in anywise appertaining.
"TO HAVE AND TO HOLD the same unto the said parties hereto, equally, jointly, as tenants in common, with equal rights and interest for the period or term of their lives, and to the survivor thereof at the death of the other.
"IN TESTIMONY WHEREOF, the said parties hereto have hereunto set their hands and seals on this the 13 day of February, 1963.
We read the granting clause as creating a joint tenancy, in compliance with § 19, Title 47, Code of Alabama. Section 19, as amended, recognizes joint tenancy, with right of survivorship in realty and personalty. The statute requires intent of survivorship expressed in the instrument of conveyance, and eliminates common law unity of time. Nunn v. Keith, 289 Ala. 518, 268 So. 2d 792 (1972).
Sadie T. Phelps did not convey to herself and Mary E. Hill, but we are of the opinion the intent is clear, she created a joint tenancy, with right of survivorship, and no arbitrary rule of construction is required. Camp v. Milam, 291 Ala. 12, 277 So. 2d 95 (1973). The statutory words, "and in which instruments it clearly appears that the intent is to create such a survivorship ..." is applicable in this case.
The remaining issue is whether Sadie T. Phelps was of sound mind when she signed the conveyance. On conflicting evidence, the trial judge found she was. Following the holdings of numerous decisions of this court on the presumption of correctness of the trial judge in ore tenus hearings, we do not disturb his findings on this issue. Our review of the evidence does not show he was palpably and clearly wrong.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | August 21, 1975 |
b06fedf3-6fe0-4621-8f1b-756a612b95f1 | Herricks v. Mutual Life Insurance Co. of New York | 318 So. 2d 683 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 683 (1975)
Patricia M. HERRICKS
v.
The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a corporation.
SC 1157.
Supreme Court of Alabama.
August 21, 1975.
James L. Shores, Jr., Birmingham, for appellant.
James W. Gewin, Birmingham, for appellee.
MERRILL, Justice.
Patricia M. Herricks brought suit to recover the proceeds of a life insurance policy on her deceased husband, Douglas C. Herricks, Jr. She appeals from a summary judgment rendered in favor of the defendant, The Mutual Life Insurance Company of New York (MONY).
Herricks had worked in insurance business many years. According to plaintiff's deposition, her husband once worked for MONY but the father of his then wife "started an insurance company and offered Doug a job."
Herricks applied for the policy in 1969 and its effective date was July 11, 1969. Renewal premiums were payable on each anniversary date. The policy lapsed twice, in July, 1971 and July, 1972.
The policy contained the following "REINSTATEMENT" clause:
On each occasion, there was no premium payment within the 30-day grace period, and it was necessary for Herricks to execute an application for reinstatement. These applications were executed on October 16, 1971 and September 23, 1972. Herricks died on August 9, 1973, as a result of a hepatic coma brought on by cirrhosis of the liver. MONY subsequently rescinded the policy, Tit. 28, § 6, Code 1940, because of alleged misrepresentations made by Herricks in the applications for reinstatement.
Question No. 6 in the two applications for reinstatement appeared as follows:
"6. Are you, so far as you know:
Herricks responded "No" to both parts of the question on both applications for reinstatement. It is undisputed that the answers on both applications for reinstatement were in Herricks" handwriting and that he prepared them and delivered or mailed them to MONY's agent.
Dr. Robert L. Whitten, however, testified in his deposition that he observed Mr. Herricks on October 1, 1971, that Herricks was suffering from cirrhosis of the liver, that he placed Herricks on a strict diet, and that he informed him that he, Herricks, had a serious illness which could be fatal and he should "never, ever take another drink as long as he lived."
Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ARCP 56(c).
Plaintiff contends that there is a genuine issue of material fact as to whether MONY had such knowledge of Herricks' alcoholism as to prevent it from relying on Herricks' misrepresentations as a defense; and that the credibility of MONY's agent, Richard S. Bullock, Sr., who handled the original application and the two applications for reinstatement, is put in issue by the plaintiff's counter-affidavit of Clarence E. Bishop, Jr.
Bullock's affidavit, filed August 15, 1974, reads in part as follows:
Bishop's counter-affidavit stated that he became acquainted with Herricks in 1956. They were both in the insurance business. Bishop worked for Protective Life Insurance Company. Bishop later (in 1965 and 1966) employed Herricks for a time and sent him to Indiana. All of this time, Herricks "continued his drinking." The only statement in Bishop's affidavit that forms a basis for plaintiff's argument that Bullock, MONY's agent, knew that Herricks was an alcoholic is paragraph 7, which reads:
That statement does not name Bullock, shows no circumstances under which Bullock had opportunity to learn of Herricks' "problem with alcohol" and, without more, it would not be admissible in evidence, and is far too general to raise a genuine issue of material fact as to knowledge on the part of Bullock or to his credibility.
We need not, however, reach either of plaintiff's contentions. Even assuming that Bullock knew that Herricks was an alcoholic, and that he had cirrhosis of the liver, MONY was nevertheless entitled to the summary judgment.
The rule in this state is that ordinarily, knowledge by the local agent authorized to solicit insurance, take and forward applications, and collect premiums, of misrepresentations by the applicant, is not available as a waiver of such breach in the face of a stipulation to the contrary in the policy. First Nat. Life Ins. Co. of America v. Rector, 225 Ala. 116, 142 So. 392; North Carolina Mutual Life Ins. v. Kerley, 215 Ala. 100, 109 So. 755; Jones v. Liberty Nat. Life Ins. Co., 35 Ala.App. 52, 47 So. 2d 222, affirmed 254 Ala. 111, 47 So. 2d 227.
The evidence established that Bullock was only a soliciting field underwriter. MONY could not be charged with facts known to such an agent but not contained in the original written application or application for reinstatement and, as a result, could not be held to have waived the misrepresentations of Herricks. As pointed out, post, in this opinion, there was no evidence by affidavit or otherwise to show that MONY or any of its agents had knowledge of the misrepresentations.
Plaintiff argues another contention. On the second page of the original policy application appeared the following questions:
Herricks responded "Yes" to question 4(d) and stated that he underwent a "Co.Exam" by "Dr. Gilbert DouglasB'ham. Ala." Herricks responded "No" to question 4(p).
At the bottom of the second page, the decedent signed an authorization for MONY to obtain any desired information from any physician who observed or treated him.
Plaintiff insists that MONY would have discovered Herricks' alcoholism had it made an inquiry of Dr. Douglas about *686 Herricks' answer to the "heart trouble" question in the original policy application.
While it is true that Dr. Douglas' records do disclose that Herricks was suffering from alcoholism at the time of the issuance of the policy in 1959, Herricks could not place the burden of discovering his alcoholism on MONY by making the "heart trouble" disclosure. There was absolutely nothing in either of the applications of October 16, 1971 or September 23, 1972 for "REINSTATEMENT WITHOUT EXAMINATION" to indicate that Herricks was an alcoholic. In addition to the negative answers shown to question No. 6, supra, he also answered two of the inquiries in question No. 5 "* * * since the date of issue of the above policy * * * have you ever: * * * (b) Had, so far as you know, any illness, disease or injury?" and "(e) Consulted or been examined or treated by any physician or practitioner?" by checking the "No" column.
It was also undisputed that these misrepresentations by Herricks materially increased the risk of loss to MONY; that the misrepresentations were relied upon by MONY; that had Herricks' true condition been known, the policy would not have been reinstated on either occasion, and that when Herricks' true condition was discovered, the beneficiary was properly notified that the policy had been cancelled.
The undisputed evidence is that MONY knew nothing of Herricks' true medical history prior to his death. MONY submitted the affidavit of John D. Eisner, an attorney associated with MONY. Item 10 of that affidavit appears as follows:
Title 28, § 6, Code 1940, applicable in the instant case, provided:
This court said in Liberty National Life Ins. Co. v. Hale, 285 Ala. 198, 230 So.2d 526:
It was also held in Horton, supra, that Tit. 28, § 6, applied equally, whether it related "to the original policy, or to a renewal, revivor, or reinstatement of the same."
*687 The action taken by the trial court was not abrupt or hasty. The suit was filed in October, 1973, and after answer denying liability, depositions were taken December 18, 1973, interrogatories filed March 18, 1974 and answered May 28, 1974, and another deposition was taken on March 27, 1974. The motion for summary judgment, with supporting depositions, affidavits and documents, was filed August 15, and plaintiff's counter-affidavit was filed November 8. The cause was argued on November 15, 1974 and the motion for summary judgment was granted. Plaintiff filed a motion to set aside the judgment and the hearing was set for January 25, 1975. Appeal was taken on February 13, 1975.
We find no reversible error in the granting of the motion for summary judgment by the trial court because "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ARCP 56(c); Twine v. Liberty National Life Ins. Co., Ala., 311 So. 2d 299.
Affirmed.
HEFLIN, C. J., and MADDOX and EMBRY, JJ., concur.
JONES, J., concurs in the result.
JONES, Justice (concurring in the result):
I have had considerable difficulty with this case. I do not agree with that portion of the opinion which holds that, even if Bullock knew that Herricks was an alcoholic and that he had cirrhosis of the liver, MONY was still entitled to a summary judgment. I concur in the result, however, because I agree that all admissible portions of Bishop's affidavit are insufficient to raise even an inference to rebut Bullock's denial of any knowledge of Herrick's condition. | August 21, 1975 |
f3c34075-cdf6-4229-b5cb-dc84bc5e0bc9 | Fesperman v. Grier | 313 So. 2d 525 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 525 (1975)
E. L. FESPERMAN and Virginia Fesperman
v.
Edward M. GRIER, Jr., et al.
SC 924.
Supreme Court of Alabama.
May 22, 1975.
Rehearing Denied June 19, 1975.
Charles Cleveland, Birmingham, for appellants.
Collins & Johnston, Birmingham, for appellees.
JONES, Justice.
This is a boundary line dispute between two neighborsEdward and Betty Grier (plaintiffs-appellees) and E. L. and Virginia Fesperman (defendants-appellants). The Griers' complaint alleges that their predecessors in interest adversely possessed a driveway located between their lot and the lot of the Fespermans, and that the Fespermans had erected a fence across the driveway which constituted a continuous trespass. A mandatory injunction was requested to order the Fespermans to vacate the strip of land and to place it in the *526 same condition as it was prior to the alleged trespass.
The case was tried without a jury. The trial Court's final decree found that the Griers and their predecessors had been in adverse possession for more than twenty years and ordered the Fespermans to remove any and all obstructions to the driveway in question and to refrain from any interference with its use as such by the Griers. A Motion for New Trial was overruled. Hence this appeal.
The two lots in question were originally owned by the Marstranders (predecessors to the Griers) and the Durbins (predecessors to the Fespermans). At that time, there existed a driveway between the two houses consisting of two tire tracks filled with gravel and a grass median. In August of 1949, the Fespermans purchased the Durbins' property and received a boundary survey in accord with their deed, but it failed to show a driveway on the south end of their property.
In 1955, the Lovelesses purchased the Marstrander property. Testimony of a neighbor who lived on the other side of the Griers indicated that the Lovelesses had made use of the driveway just as exclusively, openly, notoriously and continually as had the Marstranders for nine years before them. Mr. Loveless died in 1970. In 1971 the Fespermans had a survey made of their lot and erected a fence along the survey line between the two lots which severed the driveway approximately in half.
The Fespermans then filled in that part of the driveway on their side of the fence according to the survey and landscaped the property. Mrs. Loveless, who had apparently not lived in the house since her husband's death, sold the property to the Griers in 1973. The survey they received at the time of the purchase showed the boundary line between the two lots as generally along the fence built by the Fespermans.
While each lot is supposed to have 50 feet of frontage, the Griers presently have 48 feet and the Fespermans have 55 feet according to the line fixed by the Fespermans' fence. The distance between the fence and the side of the Griers' house is 3½ feet, which cuts off automobile access to their garage located directly behind their house.
The three issues presented are:
1. Whether the Griers' grantor and their predecessors in interest acquired prescriptive easement by the use of the disputed strip of property for the required length of time.
2. Assuming an affirmative answer to the first question, whether the land in dispute was acquired by the Griers in their deed of conveyance from their predecessor in title, Mrs. Loveless.
3. Assuming an affirmative answer to the first two questions, whether the description of the property so acquired in the trial Court's decree sufficiently describes an ascertainable boundary between the two parties.
We answer all three questions in favor of the appellees. We affirm.
The Fespermans contend that the Marstranders and the Lovelesses (the Griers' predecessors) never became owners of the driveway through adverse possession since they merely used it with permission of the Fespermans and their predecessors.
The testimony from various witnesses is clear that both the Marstranders and the Lovelesses used the driveway exclusively from 1946 until 1971,[1] except for rare occasions when the Fespermans requested *527 and were granted the use of the driveway for some limited and specific purpose.
It is also clear from the testimony that it was not until 1971, 22 years after the Fespermans bought their house and during the period following the death of Mr. Loveless when his wife was absent from the premises a majority of the time, that the Fespermans decided their boundary line encompassed approximately one-half of the driveway.
While the majority of states recognize the presumption that an easement or use is adverse and places the burden of proving permissiveness on the landowner against whom the easement is claimed, Alabama reverses this presumption and places the burden of proving the adversity upon the person claiming such easement or use. Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559 (1930); Hill v. Wing, 193 Ala. 312, 69 So. 445 (1915); Stewart v. White, 128 Ala. 202, 30 So. 526 (1900); and Steele v. Sullivan, 70 Ala. 589 (1881). Accordingly, the question then arises as to whether the Griers have met this burden of proving the adversity of their predecessors' use of the driveway for the prescriptive period.
The general rule governing adverse possession (equally applicable as relates to measure of proof in easement cases), as stated in Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9 (1974), is:
See also Stanley v. Barclay, 253 Ala. 650, 46 So. 2d 210 (1950); West v. West, 252 Ala. 296, 40 So. 2d 873 (1949).
When these principles are applied here, our familiar ore tenus rule of review " . . . is that when the trial Court had heard the evidence orally, its decree is favored with a presumption of correctness, which will not be disturbed on appeal unless plainly erroneous or manifestly unjust." Kubiszyn, supra.
There was ample evidence before the trial Judge in this case which would establish that the Griers through their predecessors in title, acquired the right of use of the driveway leading from the public street and running between the houses of the two parties by virtue of its adverse use for a period of more than 20 years.
Next, the Fespermans attack the Court's ruling that the Griers derived their right of use of the disputed land from the Lovelesses by deed. They cite Spires v. Nix, 256 Ala. 642, 57 So. 2d 89 (1952), for the proposition that for a subsequent buyer to gain title from an immediate predecessor, who had taken title by adverse possession, the buyer would either have to hold the property himself for the required length of time or have the property sufficiently described in the deed. Since neither of these two requirements were met, contend the Fespermans, title cannot be vested in the Griers.
*528 The substance of this argument is to the effect that, because the land described in the Griers' deed was merely by lot number, no portion of the disputed property was thereby conveyed. In other words, assuming that Mrs. Loveless acquired the driveway, or the use thereof, by prescription, she did not convey any portion of the property or any interest therein to the Griers beyond the original lot line separating the property of the parties; and that, under this assumption, Mrs. Loveless still owns whatever interest she had acquired in the property here in dispute.
Since the trial Court's final decree granted to the Griers an easement, as opposed to conveying title, to the disputed property, we do not reach this question.[2] Whatever result might obtain if the record title were here in issue, we accept as correct and applicable the principle of easements set out in 28 C.J.S. Easements § 46:
Although the language of the description in the Loveless-Grier deed does not by its terms include the easement, the "intent of the parties" criterion established by our case law for the determination of what interests pass by the conveyance is nonetheless applicable. As stated in Dinkins v. Latham, 154 Ala. 90, 45 So. 60 (1907):
We hold that the trial Court's ruling that the description by lot number included a grant of an easement to the Griers to the disputed area is clearly sustainable since there was no evidence to support even an inference that Mrs. Loveless intended to convey anything less than her full interest in the property, including the use of the property as a driveway acquired through more than 20 years of prescriptive use. Moreover, given the trial Court's resolution of the adverse use issue in favor of the Griers, the Fespermans had no legal claim to the exclusive use of the property in question at the time of the Loveless-Grier conveyance.
The law strives for stability and certainty, particularly in the field of real estate titles and interests. A contrary holding in the instant case could only serve to cloud the title and call into question the interests of literally thousands of acres of land throughout our State. Undoubtedly, this was the consideration that guided the trial Court in concluding that for all practical purposes it was unreasonable and unrealistic to assume that Mrs. Loveless, in conveying by lot number to the Griers, intended to reserve to herself a small wedge-shaped piece of land which, standing alone, was neither salable nor usable and which provided her grantees the only access to their garage.
The Fespermans contend that the trial Judge's description of the driveway in his final decree is so vague that it is impossible to determine precisely what portion of the property within the Fesperman's *529 fence is being awarded to the Griers. The property was described as "the disputed driveway" and "the driveway in question." In support of this contention, the Fespermans rely on Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9 (1974), which held that a decree establishing a property line must describe the true boundary with particularity and at least have reference to landmarks at the end and beginning points of reference. While we are in complete agreement with the foregoing proposition, it must be read and understood in connection with the surrounding facts and circumstances involved in each property dispute.
The disputed property in Kubiszyn necessitated a precise description involving landmarks since large areas of farm land were involved. In the present situation, all that is involved is a driveway between two houses leading to a garage whose outline can still be clearly discerned. Accordingly, the visible outline of the driveway leading to the mouth of the garage constitutes sufficient landmarks by which its location is clearly ascertainable. Also, the dispute in actuality, is not over the location of the driveway, but over which of the two parties is entitled to the possession and use of the strip of land that was once the driveway.
Thus, the description of the driveway in the decree is sufficiently clear to determine just what has been awarded. Then, too, the trial Judge, who tried the case without the benefit of a survey showing the exact location of the driveway, was faced with the practical consideration of settling the dispute with the least additional expenses to the parties, and the decree awards an easement acquired through prescriptive use rather than a passing of title.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] For an excellent discussion of the "tacking" principle, see Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 74 (1967), which principle is not attacked by this appeal.
[2] For the evidentiary effect that the failure to include. in the deed by specific description any accretion allegedly acquired by adverse possession may have on the issue whether title was so acquired, see Dixon Lumber Co. v. Mathison, 289 Ala. 229, 266 So. 2d 841 (1972); Machen v. Wilder, 283 Ala. 205, 215 So. 2d 282 (1968); Haywood v. Hollingsworth, 255 Ala. 453, 51 So. 2d 674 (1951). | May 22, 1975 |
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