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4609b930-d638-4b8e-9f1d-8bda61042afe | Corona v. Southern Guaranty Insurance Co., Inc. | 314 So. 2d 61 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 61 (1975)
Michael B. CORONA
v.
SOUTHERN GUARANTY INSURANCE COMPANY, INC., a corp., as Subrogee of Oliver Milton Ragsdale.
SC 1083.
Supreme Court of Alabama.
May 29, 1975.
*62 Cooper, Mitch & Crawford, and John C. Falkenberry, Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
EMBRY, Justice.
This appeal is from an "ORDER ON MOTION TO STRIKE COUNTERCLAIM." The counterclaim was filed by defendant Corona against Oliver Milton Ragsdale, the nonparty subrogor of plaintiff Southern Guaranty Insurance Company, Inc. The action was brought by Southern Guaranty against Corona for the negligence of Corona resulting in damage to the Ragsdale automobile. The complaint was captioned:
"SOUTHERN GUARANTY INSURANCE COMPANY, INC. a Corporation, as subrogee of Oliver Milton Ragsdale
MICHAEL B. CORONA
Corona answered by general denial, alleged contributory negligence on the part of Ragsdale, and counterclaimed against Ragsdale.
Ragsdale moved to strike the counterclaim on the grounds that he was not a party plaintiff and the court had no jurisdiction over him. The motion to strike the counterclaim was granted without opinion by the trial court.
Southern Guaranty has filed a motion to dismiss this appeal, together with an amendment to it, contending that the order granting the motion to strike the counterclaim is not appealable. Before dealing with the motion to dismiss the appeal we will first discuss the merits of the case. See Gillespie v. United States Steel Corp., 321 F.2d 518 (6th Cir. 1963) (preferring decision on the merits).
ARCP 10(a) requires that in a complaint the title shall include the names of all the parties. ARCP 17(a) states:
The obvious intent of 17(a) is twofold. First it seeks to avoid confusion over who are parties plaintiff. Secondly it allows the title of the complaint to affirmatively indicate that the subrogor no longer has any pecuniary interest in the claim and therefore *63 none in the outcome of the litigation. In short, it allows a short and plain statement of the claim showing who is entitled to relief when subrogation has occurred. ARCP 8(a).
Reading the caption of the complaint shows its conformity to ARCP 17(a). The title of the complaint clearly shows that the subrogor no longer has any pecuniary interest in the claim when the qualifying phrase "* * * as subrogee * * *" is used. This demonstrates beyond doubt that Ragsdale is not a party plaintiff. Appellant's apparent confusion in this regard derives from the body of the complaint which does speak in terms that could indicate Ragsdale to be a party plaintiff. However, as ARCP 10(a) indicates, it is the title of the complaint and not the body that establishes those parties who are before the court as litigants.
It follows from ARCP 13(a) that assertion of a counterclaim against Ragsdale was impermissible and properly stricken.
In making this determination we have not overlooked the cases of Bowen v. Snell, 9 Ala. 481 (1846) and 11 Ala. 379 (1847), and Hooper v. Armstrong, 69 Ala. 343, cited by appellant in brief. Those cases allowed a setoff to be pleaded against one not a party where that person had a real beneficial interest in plaintiff's claim. Suffice it to say that ARCP 17(a) commands that one with a pecuniary interest be made a party to the action so that a counterclaim could be asserted against him. The title of the complaint in this case shows that Ragsdale had no such interest.
The foregoing notwithstanding, we have before us a motion to dismiss the appeal contending that the order striking the counterclaim is not appealable since it is not a final judgment.
It has been held that such an order is a final judgment from which an appeal will lie. "We think that the effect of this rule [FRCP 41(b)] is to render a dismissal of the counterclaim an adjudication on the merits, * * *." Jefferson Electric Co. v. Sola Electric Co., 122 F.2d 124 (7th Cir. 1941) and 125 F.2d 322 (7th Cir. 1941), rev'd on other grounds, 317 U.S. 173, 63 S. Ct. 172, 87 L. Ed. 165. However,
ARCP 54(b) states:
The trial court in this case did not find there was no just reason for delay and expressly direct entry of judgment. Until there is final adjudication on the complaint and answer, the court could revise its order striking the counterclaim. There is, therefore, no final judgment from which an appeal will lie. Ala.Code, Tit. 7, § 754; Cates v. Bush, Ala., 307 So. 2d 6; Bush v. United Benefit Fire Insurance Co., 311 F.2d 893 (5th Cir. 1963); Shwab v. Doelz, 229 F.2d 749 (7th Cir. 1956); Wright & Miller, Federal Practice and Procedure, § 1408. See also Clark v. Taylor, 163 F.2d 940 (2d Cir. 1947) Frank J., dissenting (discussion of fragmentary appeals); Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621 (2d Cir. 1943) (discussion of Rule 54(b)); Annot. 38 A.L.R.2d 356. Furthermore
In this case the order striking the counterclaim merely denied appellant the right to assert his claim in this action. That order is revisable at any time prior to final adjudication on the other claims. Motion to dismiss this appeal is granted.
Appeal dismissed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | May 29, 1975 |
e0416cfe-dd0b-47dd-9945-3578d3ac1818 | Raines v. State | 317 So. 2d 559 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 559 (1975)
In re Don RAINES
v.
STATE of Alabama.
Ex parte Don Raines.
SC 989.
Supreme Court of Alabama.
May 22, 1975.
As Corrected on Denial of Rehearing July 10, 1975.
*560 T. J. Carnes, Albertville, for petitioner.
William J. Baxley, Atty. Gen., Montgomery, and George M. Boles, Sp. Asst. Atty. Gen., Birmingham, for the State, respondent.
COLQUITT, Circuit Judge.
This case presents the narrow but precise issue whether the statutory waiver of a jury trial required by the Youthful Offender Act (Act No. 335, approved Feb. 10, 1972, Tit. 15 § 266(1)-(6), Code of Alabama, is violative of the constitutional guarantees of the right to trial by jury and due process of law.
Don Raines was indicted for unlawfully selling marijuana. At arraignment the trial court appointed counsel to represent Raines and advised him of his "youthful offender" rights in substance as follows:
(1) If he applied for and was granted youthful offender status, he would be tried before the court without a jury; and, if found guilty as charged, he would be adjudged a youthful offender.
(2) The sentence could be suspended.
(3) He could be placed on probation for a period not to exceed three years.
(4) He could be fined with or without commitment or he could be committed to the custody of the Director of the Department of Corrections for a term of not more than three years.
*561 (5) Any adjudication of being a youthful offender would not disqualify him from public office or public employment or operate as a forfeiture of any right or privilege or make him ineligible to receive any license granted by a public authority.
(6) Such conviction could not be deemed to be a conviction of a crime except that, if such person were subsequently convicted of a crime, a prior adjudication of his being a youthful offender could be considered.
(7) Fingerprints, photographs, and other records of him, if he were adjudged a youthful offender, would be barred from public inspection.[1]
The trial court also informed Raines that as a prerequisite to his becoming eligible for these post-adjudication "benefits," he would have to consent to (1) an examination by the court to determine whether he should be tried as a youthful offender and (2) trial without a jury; and that, if the court so determined, the issue of the defendant's guilt or innocence would be tried by the court in the event he entered a plea of not guilty.
Thereupon, Raines' counsel informed the court that Raines claimed his benefits under the Act, but that he refused to waive his right to trial by jury. The court then ordered that he be arraigned and tried as an adult. Following a plea of "not guilty," and a trial of the case, the jury found Raines guilty as indicted and he was sentenced to three years in the penitentiary. On appeal, the Court of Criminal Appeals affirmed, and we granted certiorari. We affirm and hold that the provision of the Youthful Offender Act requiring waiver of trial by jury is constitutional.
The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction. It is designed to provide them with the benefits of an informal, confidential, rehabilitative system. A determination that one is a youthful offender (1) does not disqualify the youth from public office or public employment, (2) does not operate as a forfeiture of any right or privilege, (3) does not make him ineligible to receive any license granted by public authority, and (4) shall not be deemed a conviction of crime; and (5) the record shall not be open to public inspection except upon permission of the court. Title 15, § 266(6), Code of Alabama.
The Act also affords several alternative sentencing provisions should the accused be adjudged a youthful offender and the underlying charge be a felony. The Act provides in part:
"[T]he court shall (a) suspend the imposition or execution of sentence with or without probation, or (b) place the defendant on probation for a period not to exceed three years, or (c) impose a fine as provided by law for the offense with or without probation or commitment, or (d) commit the defendant to the custody of the director of the department of correction for a term of three years or a lesser term."
Tit. 15 § 266(4), Code of Alabama.
The adjudication and disposition of a case under the Youthful Offender Act requires that the accused consent to an examination by the court and a trial without a jury. It is this provision of the Act which is in question here.
We intend to show that the requirement that a defendant consent to a trial without a jury in order to bring himself within the purview of the Youthful Offender Act is not unconstitutional; that the denial of a trial by jury does not violate other constitutional *562 guarantees of due process, particularly the right of confrontation and cross-examination and the privilege against self-incrimination; that the investigation and examination of the defendant by the court incident to determining whether he should be afforded youthful offender status is not a denial of due process; that the application of jury trials to youthful offender cases cannot benefit the youthful offender system, but can only create tension and overlap between that system and the system of criminal adjudication; and that the application of jury trials in such cases would only serve to vitiate the purpose for which the youthful offender system was conceived and the interests which it was designed to protect.
It has been held in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971), that trial by jury in juvenile proceedings is not constitutionally required. Relying on McKeiver, our Court of Criminal Appeals upheld the constitutionality of the youthful offender statute in Flippo v. State, 49 Ala.App. 138, 269 So. 2d 155, cert. denied, 289 Ala. 743, 269 So. 2d 164 (1972).
It is of first importance that the Alabama Youthful Offender Act does not categorically deny an accused the right to trial by jury. If the accused so desires, he may have a jury trial, along with the full complement of rights and privileges accorded him under the criminal adjudicatory process. It is at his option that he brings himself within the Youthful Offender Act and it is with his consent that his case is heard without a jury.
In the instant case, appellant relies on the rationale in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), that where an accused must waive a jury trial in order to be eligible for certain benefits, such requirement penalizes the assertion of a constitutional right and is a denial of due process.
In a Second Circuit case, United States v. Torres, 500 F.2d 944 (2d Cir. 1974), an attempt was made to apply this rationale to proceedings under the Federal Juvenile Delinquency Act, which at that time contained a jury-waiver provision quite similar to the jury-waiver provision in our Youthful Offender Act. The Torres court found that the requirement of a non-jury trial did not violate the Sixth Amendment or due process of law, and that no constitutional right to trial by jury existed in federal juvenile proceedings. 500 F.2d, at 948.
In addressing the Jackson rationale, the Torres court distinguished between cases where the defendant possesses a constitutional right to trial by jury in a criminal prosecution (such as Jackson), and those cases in which there is no constitutional right to a jury trial due to the nature of the proceeding and the power of Congress to circumscribe that right in certain instances. The Torres court stated:
"[Congress] permitted the juvenile to choose between the relatively beneficent and rehabilitative juvenile delinquency proceeding in which he was not entitled to a jury and prosecution as an adult with trial by jury. * * * [W]e hold that the provisions of the Act requiring that the consent of a juvenile to delinquency proceedings `be deemed a waiver of a trial by jury' are constitutionally valid. The choice afforded the appellant under these provisions did not deprive him of any constitutional right to a jury trial or impermissibly burden the exercise of any such right."
500 F.2d, at 949.
Similarly, we find that the proceedings under Title 15, § 266, Code of Alabama, are not criminal in nature and therefore are not subject to the constitutional mandate of trial by jury. Youthful offender adjudications are special proceedings designed to protect persons in a certain age group, heretofore tried as adults, from *563 the stigma and often harmful consequences of the criminal adjudicatory process. It is a manifestation of the legislature's judgment that while persons are still young they may more readily and appropriately respond to methods of treatment which are more rehabilitative, more correctional and less severe than penalties to which adults are exposed. It is an extension, so to speak, of the protective juvenile process. The institution of special procedures is a right vested in the state, and their application lies within the discretion of the state.
The question arises as to whether denial of a jury trial violates the accused's rights of due process, confrontation and cross-examination of witnesses, and the privilege against self-incrimination. The right to such procedures goes to the fact-finding process and the need for accuracy in determining what the true facts are in each case. The McKeiver court found the jury not to be a "necessary component of accurate factfinding." 403 U.S. at 543, 91 S. Ct. 1976. The court also stated:
Furthermore, the investigation undertaken by the court under the Youthful Offender Act does not amount to a denial of the accused's due process guarantees. The procedure whereby the court determines whether the accused should be afforded youthful offender status is not a "summary trial" where the guilty are relegated to different treatment than the innocent. Guilt or innocence is not at issue during this stage of the proceeding. Trial judges have for years considered preliminary issues before hearing a case non-jury. See, e.g., Title 13 §§ 326, 327, Code of Alabama, which provide that county court judges shall "examine the affiant under oath, and other witnesses, if he so desires, touching the offense charged in the affidavit [before issuing a warrant]," and then, after issuing the warrant, try the case non-jury; or consider Title 13, §§ 363, 364, Code of Alabama, providing for transfer of juveniles between courts, where it is entirely possible for the same judge to sit, e.g., transfer from juvenile court to county court or vice-versa. And, of course, after such transfer, the same judge would try the case non-jury.
In the recent United States Supreme Court case of Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975), the Court in a unanimous decision upheld a state statute empowering an administrative board with both investigative and adjudicative functions. The statute was attacked on grounds of due process. In analogizing the statutory power of such a board to that of the judicial system, the Court stated:
at p. 56, 95 S.Ct. at p. 1469. The Court further stated at pp. 56-57, 95 S.Ct. at p. 1469:
Thus, the Withrow case is the most recent example of the Court's recognition of that which we hold-pretrial involvement or knowledge on the part of the trial judge does not necessarily create an unconstitutional risk of bias.
We cannot say that the discretion exercised by the court in an investigation of the accused to determine his eligibility for youthful offender status is violative of due process.
We note that sentences under the Youthful Offender Act have the potential for exceeding the six-month maximum established in Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970), which held that any sentences beyond that limit automatically entitled criminal defendants to a jury trial. The possibility of a sentence longer than six months was understood to have existed in both McKeiver and Torres, supra, and yet did not preclude a finding that denial of jury trial in such cases was constitutional.
Last, we must consider the potential harm to the operation of the youthful offender court that would be imposed by the application of jury trials. The McKeiver Court feared the possibility of delay, formality, and the clamor of a public trial inherent in a trial by jury. See 403 U.S., at 550, 91 S. Ct. 1988, 29 L. Ed. 2d 663. The McKeiver Court also stated:
403 U.S., at 545, 91 S.Ct., at 1986.
The Alabama Youthful Offender Act was conceived for the purpose of protecting those who fall within its ambit from the stigma and practical consequences of a conviction for a crime. Accordingly, the Act provides for confidentiality in the proceedings and in the availability of the offender's records with regard to the adjudication. The introduction of a jury into such proceedings would destroy any confidentiality with which the Act attempts to clothe the proceedings and the youthful offender's record. As a practical matter, the provision that youthful offenders be tried "at court sessions separate from those for adults charged with crime" (Title 15 § 266(2), Code of Alabama), would become virtually impossible to carry out.
We find that the jury-waiver provision of the Youthful Offender Act does not render that Act unconstitutional; that the adjudicatory procedures defined by the Youthful Offender Act do not violate due process of law; and that any benefits which might result from the infusion of a jury trial into youthful offender proceedings are greatly outweighed by the detrimental effects it would have to the orderly functioning of the youthful offender system and to the interests of those persons the Act was designed to protect.
For the reasons set out above the judgment of the Court of Criminal Appeals is due to be affirmed.
The foregoing opinion was prepared by COLQUITT, Circuit Judge, temporarily on duty on the Supreme Court by order of the Chief Justice pursuant to Ala.Const. Art. 6 § 149 (1973).
Affirmed.
*565 HEFLIN, C.J., and MERRILL, BLOODWORTH, MADDOX and FAULKNER, JJ., concur.
JONES, SHORES and EMBRY, JJ., dissent.
ALMON, J., not sitting.
JONES, SHORES and EMBRY, Justices (dissenting):
We respectfully dissent. We disagree with the majority opinion in two particulars:
First, assuming arguendo that the status of a juvenile delinquent and that of a youthful offender equate, we take the position that McKeiver lends no support to the jury waiver provision of the Youthful Offender Act. Indeed, as we shall demonstrate, McKeiver makes crystal clear that nonjury trials for the juvenile system would not meet constitutional muster if, as an incident thereto, other due process guarantees were violated.
Second, the distinction between youthful offender status and that of a juvenile delinquent is of such significance as to render the nonjury rationale applicable to juveniles inapplicable to youthful offenders.
Because the majority opinion hinges substantially on McKeiver, an in depth analysis of that case is appropriate. Mr. Justice Blackmun, speaking for the Court, wrote:
"1. Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948), concerned the admissibility of a confession taken from a 15-year-old boy on trial for first-degree murder. It was held that, upon the facts there developed, the Due Process Clause barred the use of the confession. Mr. Justice Douglas, in an opinion in which three other Justices joined, said, `Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.' 332 U.S., at 601, 68 S.Ct., at 304.
"2. Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962), where a 14-year-old was on trial, is to the same effect.
"3. Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), concerned a 16-year-old charged with housebreaking, robbery, and rape in the District of Columbia. The issue was the propriety of the juvenile court's waiver of jurisdiction `after full investigation,' as permitted by the applicable statute. It was emphasized that the latitude the court possessed within which to determine whether it should retain or waive jurisdiction `assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a "full investigation." 383 U.S., at 553, 86 S.Ct., at 1053.
"4. In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), concerned a 15-year-old, already on probation, committed in Arizona as a delinquent after being apprehended upon a complaint of lewd remarks by telephone. Mr. Justice Fortas, in writing for the Court, reviewed the cases just cited and observed,
"6. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), concerned a 12-year-old charged with delinquency for having taken money from a woman's purse. The Court held that `the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,' 397 U.S., at 364, 90 S.Ct., at 1073, and then went on to hold, at 368, 90 S.Ct., at 1075, that this standard was applicable, too, `during the adjudicatory stage of a delinquency proceeding.'
"From these six casesHaley, Gallegos, Kent, Gault, DeBacker, and Winshipit is apparent that:
"2. The Court, however, has not yet said that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding...." (Emphasis supplied).
The McKeiver opinion then proceeded to detail the facts of each of the consolidated cases; and, after finding that the constitutional requirements mandated by the six cases just reviewed had been met, the Court declined to extend these requirements to include the right of trial by jury in state juvenile delinquency proceedings.
We turn now to an examination and analysis of Act No. 335. Given our initial assumption that, for the limited purpose *567 of this aspect of the case, we will equate the status of a juvenile delinquent and a youthful offender, our inquiry is whether the jury waiver requirement of the Youthful Offender Act of itself necessarily violates any of the constitutional requirements applicable to state juvenile proceedings, particularly the right to confrontation and to cross-examination, and the privilege against self-incrimination.
The Act states, in pertinent part:
"A person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall ... be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury ... If the defendant consents and the court so decides, no further action shall be taken on the indictment or information unless otherwise ordered by the court as herein provided. After such investigation and examination, the court in its discretion may direct that the defendant be arraigned as a youthful offender, and no further action shall be taken on the indictment or information; or the court may decide that the defendant shall not be arraigned as a youthful offender, whereupon the indictment or information shall be deemed filed."
Thus, the Act makes clear that the purpose of the investigation and examination of the defendant is to enable the trial judge to exercise an informed judgmentjudicial discretionof the eligibility of the defendant for youthful offender status. The investigation and examination of the defendant by the trial court is the procedure prescribed by the statute for the garnering of essential information as the basis for the exercise of its judicial discretion. What is this essential information? Certainly included, inter alia, are the defendant's personal and family background, his past criminal record, if any, and the facts and circumstances of the alleged crime itself.
Manifestly, then, it is crucial to the equal application of the beneficent purpose sought to be effected by the Act that the trial court, in the discharge of its judicial responsibility for determining eligibility, be sufficiently informed of those matters essential to such a decision. If, in the exercise of its discretion, the trial court determines that the defendant is eligible for youthful offender status, and if, upon arraignment, the defendant pleads not guilty, the trial court is placed in the anomalous situation of having been required by the statute to review information which the Constitution forbids to the trier of the facts.
Consequently, we are faced here with the situation where the Act's requirements that the defendant waive his right of trial by jury necessarily violates other constitutional guarantees of due process, particularly the right of confrontation and cross-examination of witnesses and the privilege against self-incrimination. This anomaly is brought about because sequentially our Youthful Offender Act places on the trial court the responsibility to determine eligibility for youthful offender status prior to the defendant's arraignment and trial.[2]*568 Before the defendant can avail himself of the Act, i.e., before he may be considered for youthful offender treatment, he must first consent to a summary trial without a jury. If the defendant elects to enter a plea of not guilty but still wishes to avail himself of the benefits incident to such a status, the Act requires, in addition to the jury waiver, that he also waive other constitutional guarantees which, according to McKeiver, must be afforded even in state juvenile delinquency proceedings.
While we would be willing, for the purpose of this aspect of the case, to equate the status of a youthful offender to that of a juvenile, and afford an accused youth between the ages of 16 and 21 no greater constitutional rights than those prescribed by McKeiver for a juvenile, we are unalterably opposed to the creation of a third category for youthful offenders which is constitutionally inferior to that of either an adult or a juvenile. Indeed, it is our opinion that any reasonable interpretation of McKeiver, and the cases reviewed therein, forbids us to do so. This conflict between the jury trial waiver provision of the Actcarrying with it as it does other waiversand the constitutional due process clause must be resolved, and we think its resolution requires that we strike the statutory jury trial waiver provision.
Perhaps our point can be clarified under the following hypothesis: Suppose the Act, in merging the status determination and the issue of guilt, had placed both responsibilities in the hands of a jury. One would not question the reaction of this Court, or any other appellate court, in holding invalid a procedure requiring submission to a jury all statements, admissions, or confessions of the accused, probation reports containing hearsay, past criminal record, unverified reputation, etc. Nor would any court hold that the evils inherent in such a procedure could be cured by the strongest admonitions by the trial court to the jury to disregard such data in its deliberation of the innocence or guilt issue. Yet, the statute itself mandates that the trial judge do exactly that.
In other words, the Act contemplates that the trial court, for status determination purposes, will have access to statements, admissions, or confessions made by the defendant (§ 266(3)), but forbids their admissibility at trial upon the defendant's plea of not guilty. This section of the Act goes further to allow the court to recall and consider such intelligence for purposes of sentencing whether the accused is convicted of a crime or adjudged a youthful offender.
We submit that on the one hand this Court would unhesitatingly disapprove of this merged procedure being handled by a jury for reasons readily apparent, but this Court on the other hand approves the Act as written which places the identical dual determination (both as to status and guilt) in the trial court. The constitutional proscription as to the one is equally applicable to the other. Just as in the case of the jury, this places upon the trial judge an unconstitutional burden.
In concluding our discussion under this aspect of the case, we re-emphasize the point that we are addressing only that situation in which the accused (between 16 and 21 years) does not enter a voluntary plea of guilty. Admittedly, a vast majority of youthful offenders seeking the benefits of this Act will do so in prior contemplation of entering voluntarily a plea of guilty to the offense charged. In such cases the issue here before us never arises. But, in the instant case, as indeed every accused *569 has the right to do, the defendant entered a plea of not guilty. It is in this limited context that our discussion is addressed. The voluntariness vel non of the plea is more fully developed in our discussion under the second aspect which follows:
Under this aspect of the case we are unwilling to concede the application of Mc-Keiver and this point can be clarified initially by an analysis of Flippo.
Two comments are appropriate: First, the accused in Flippo voluntarily waived his right to jury trial and sought youthful offender status under the Act, the constitutionality of which was challenged by the State. Second, the flaw in Flippo was in basing its decision on the holding of McKeiver since McKeiver was concerned with juveniles rather than youthful offenders.
Under the law, by virtue of age alone, one is already adjudged a juvenile or not when the offense is committed and hence is governed by that procedure from the moment of arrest. Such is clearly not the case under the Youthful Offender Act because the determination of whether one will be tried as a youthful offender cannot even begin to be decided until "he [the defendant] consents to such examination and to a trial without a jury." This crucial distinction renders the holding of Mc-Keiver, as it relates to the jury issue, inapplicable to cases involving youthful offenders.
Also, Flippo relies on Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1972), particularly where it states:
"* * * Our conclusion is that in the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants. We would not assert, however, that every criminal trialor any particular trialheld before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury. Thus we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial. However, the fact is that in most places more trials for serious crimes are to juries than to a court alone; a great many defendants prefer the judgment of a jury to that of a court. Even where defendants are satisfied with bench trials, the right to a jury trial very likely serves its intended purpose of making judicial or prosecutorial unfairness less likely." (Emphasis added by the Alabama Court of Criminal Appeals.)
Flippo, according to this reasoning, impliedly limits cases tried under the Youthful Offender Act to petty crimes. But how can a crime such as the one here in question, which, even if the Act is applied, carries a maximum penalty of three years' imprisonment, be deemed petty? Conversely, the juvenile system by its express language not only is prohibited from adjudication of criminality but cannot impose a prison sentence. Indeed, except for extraordinary circumstances, any judge who violates this proscription is himself guilty of a misdemeanor. Tit. 13, §§ 379, 382, Code.
While the right to a jury trial may always be waived, a youthful offender does not enjoy that privilege because under the terms of the Act this right must be waived as a prerequisite to the trial court's consideration of affording the defendant youthful offender status. As Duncan states, "a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for *570 assuring that fair trials are provided for all defendants."
In Baldwin v. N.Y., 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970), the United States Supreme Court held that any criminal offense where the accused possibly faces imprisonment for more than six months carries with it the right of trial by jury. This constitutional right cannot be averted by denominating the adjudication "Youthful Offender," as opposed to the criminal offense originally charged, and upon conviction imposing sentence up to three years.
Additionally, it is our considered opinion that the Youthful Offender Act embraces the "stick and carrot" concept which needlessly penalizes the assertion of a constitutional right. This precise issue was addressed in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) (involving Federal Kidnapping Act), where the Court said:
It seems apparent to us that the Youthful Offender Act, like the Federal Kidnapping Act, "tends to discourage defendants from insisting upon their innocence and demanding trial by jury [and] hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily."
We are mindful that it is our judicial obligation to construe statutes in such a way as to carry out the will of the legislative branch of the governmentto 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 fundamental rule of construction is mandated by the separation of powers doctrine.
The Legislature intended to implement an intermediary system which would accommodate the needs of those individuals too old to qualify as a juvenile but too young to be thrust into the adult criminal system of our courts. It is our considered opinion that the Act absent the jury trial waiver provision is workable and its operative effect retains this overall beneficial legislative intent.[3]
We believe the procedure outlined in Clemmons v. State, 294 Ala. ___, 321 So. 2d 238 [this date decided], is in no way hindered or made less applicable if the right of trial by jury is preserved to those deemed eligible for the benefits of the Act who enter a not guilty plea, thereby separating the status determination process from the trial of the issue of innocence or guilt of the offense charged. Only by separating the two processesthe status determination from the trial on the defendant's plea of not guiltycan the constitutionally prejudicial ingredients inherent in the former step be rendered harmless in the latter; and this separation is effectively accomplished by preserving the defendant's right of trial by jury on his not guilty plea.
It is our opinion that the Act, with the jury trial waiver provision deleted, is both workable and in keeping with its noble purpose since the intent of the Act remains alive and the constitutional requirements (Art. 1, § 6, Const. of Ala., and Amendment XIV, Const. of the U.S.) are satisfied. With the jury waiver provision retained, the otherwise Herculean effort results in but a Pyrrhic victory.
Therefore, we would reverse and remand.
[1] The trial court's explanation of the defendant's rights under the Act is set out in order that we might commend this procedure for use by trial courts in appropriate situations.
[1] It should be noted that neither the specially concurring opinions of Mr. Justice Brennan or Mr. Justice Harlan, nor the dissenting opinion of Mr. Justice Douglas, with whom Mr. Justice Black and Mr. Justice Marshall concurred, took issue with this summary of due process rights to be accorded an accused in a juvenile delinquency proceeding.
[2] Our research indicates that Alabama stands alone among the states having similar procedures in placing the trial of the issue of innocence or guilt after the determination of youthful offender status. We also note in passing that, as the Court of Criminal Appeals in Flippo observed, "Act No. 335 was borrowed, body and soul, from the `Model Sentencing Act' . . . [which] was patterned, in large measure, from the State of New York's Youthful Offender Act . . . ." And, as Flippo further acknowledges, the Court of Appeals of New York, in People v. Michael A.C. (Anonymous), 27 N.Y.2d 79, 313 N.Y.S.2d 695, 261 N.E.2d 620 (1970), held that the jury trial waiver provision of the Act unconstitutional. Thereafter, the New York State Legislature repealed the Youthful Offender Act and adopted the "Youth Court Act" which provides for a post-conviction determination and sentencing. To be sure, we would have no difficulty in agreeing with the holding and rationale of the majority in the instant case if our Act delayed the status determination and the treatment of the accused thereunder until the post-conviction and presentencing stage of the proceedings.
[3] Act No. 335 contains a severability clause. | July 10, 1975 |
b7348d55-2568-4199-ba05-2196c34908d5 | Jackson v. City of Florence | 320 So. 2d 68 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 68 (1975)
Cecil D. JACKSON
v.
The CITY OF FLORENCE, a Municipal Corporation, et al.
SC 934.
Supreme Court of Alabama.
July 10, 1975.
Rehearing Denied October 2, 1975.
C. A. Poellnitz, Florence, for appellant.
Arnold Teks, Florence, for appellees.
Drayton N. Hamilton, Montgomery, for Alabama League of Municipalities, amicus curiae.
SHORES, Justice.
This is an appeal from a judgment of nonsuit occasioned by the trial court's sustaining the defendant city's demurrer and motion to dismiss the plaintiff's complaint. The trial court specified the grounds upon which the demurrer was sustained, saying:
The complaint claimed damages against the City of Florence and a police officer for personal injuries sustained by the plaintiff as a proximate result of the negligence and wantonness of the police officer acting in the line of duty. It was alleged that the police officer, while engaged as a police officer of the City of Florence, negligently assaulted (Count I) and willfully or wantonly assaulted (Count II) the plaintiff, an unarmed, seventy-five-year-old, 130-pound man by the use of excessive force, resulting in the plaintiff's loss of his right eye. In his claim, filed pursuant to Title 37, §§ 476 and 504, Code, the plaintiff asserted:
Appellant acknowledges, as indeed he must, that this is a "head-on" request for a re-examination and reconsideration of the broad question of whether Alabama municipal corporations should continue to enjoy immunity from liability for the wrongful acts of their agents acting within the line and scope of their employment. More specifically, he seeks a re-evaluation of this court's construction of Title 37, § 502, Code. He further admits that, for him to prevail, this court must overrule a long line of cases including, but not limited to, Chaffin v. City of Montgomery, 273 Ala. 492, 142 So. 2d 267 (1962); McSheridan v. City of Talladega, 243 Ala. 162, 8 So. 2d 831 (1942); and McCarter v. City of Florence, 216 Ala. 72, 112 So. 335 (1927).
It is generally agreed that the doctrine of sovereign immunity developed in this country from the English doctrine, which grew out of the concept that the "King can do no wrong." That this occurred in America, given the historical background which led to the Revolutionary War, is "one of the mysteries of legal evolution." Borchard, Government Responsibility in Tort, 34 Yale L.J. 1, 4 (1924). The concept of municipal immunity from tort claims had its beginning in the English case of Russell v. Men of Devon, 100 Eng.Rep. 359 (1788), which, it has been noted, was 12 years after the Declaration of Independence. Massachusetts is said to be the first state in the United States to adopt the doctrine by judicial decision in Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812).
Alabama first considered the question of tort liability of municipalities in 1854, in Smoot v. The Mayor, etc. of Wetumpka, 24 Ala. 112. Four years later, it declared cities immune to suit for torts committed by agents in the exercise of a governmental function. Dargan v. Mayor, etc. of Mobile, 31 Ala. 469, 70 Am.Dec. 505 (1858). There followed a long line of cases holding that municipalities were liable for torts committed in the exercise of their corporate or proprietary capacity, but were immune from suit for the commission of torts in their governmental capacity.
During this same period, this court made a distinction in connection with streets. In Smoot v. The Mayor, etc. of Wetumpka, supra, in holding that the cities were liable for negligent injuries arising out of defects in the streets, the court fixed liability on the theory that there was a breach of an affirmative duty on the part of the city to keep the streets in good repair. The street cases did not rest on the distinction between governmental or proprietary functions, as did other torts. Albrittin v. Mayor *70 & Aldermen of Huntsville, 60 Ala. 486, 31 Am.Rep. 46 (1877); City of Selma v. Perkins, 68 Ala. 145 (1880); City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am.Rep. 422 (1882); Bradford v. Mayor & City Council of Anniston, 92 Ala. 349, 8 So. 683 (1890); Mayor & Aldermen of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243 (1890); Mayor & Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424 (1895); Lord v. City of Mobile, 113 Ala. 360, 21 So. 366 (1896); City Council of Montgomery v. Reese, 146 Ala. 410, 40 So. 760 (1906); and City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48 (1907).
The doctrine of governmental immunity in this country has been universally condemned in an unending number of published statements by legal scholars and jurists. It is frequently stated that the doctrine cannot be defended on any logical basis. By the turn of the century, it was being criticized as unjust and irrational from many sources; but, there is no doubt that the doctrine was, by that time, firmly established in Alabama law by decisions of this court, as it was in a majority, if not all, of the other states of the Union.
Against this background, the Alabama Legislature acted in 1907, by enacting legislation which is now carried as Title 37, §§ 502-504, which provide:
§ 503. The injured party, if he sues the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as defendant or defendants of the suit, and no judgment shall be rendered against the city or town, unless judgment is rendered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant or when judgment is rendered in his favor on some personal defense, and if an action be brought against the city or town alone and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provisions in the preceding section, the plaintiff shall be nonsuited, unless he amends by making such party or corporation a defendant if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately, irrespective of this provision. When a judgment shall be obtained against a municipality and the other party liable as aforesaid, execution shall issue against the other defendant or defendants in the ordinary form, and shall not be demandable of the city or town unless the other defendants are insolvent, and the same cannot be made out of their property, and the city or town shall pay only so much of the said judgment as cannot be collected out of the other defendants. If the injured party shall, before bringing suit, demand of the mayor of such municipality the name of such other person or persons or corporation as may be liable jointly with the *71 said municipality to such injured party, and if such mayor failed to furnish within ten days from the making of such demand, the name of such person or persons or corporation, so jointly liable, the said injured party shall not be required to join such other person as a party defendant with said municipality in any suit brought to recover damages for such injuries.
As noted in an excellent analysis of the case law, both before and after the enactment of § 502 et seq., Copeland and Screws, "Governmental Responsibility for Tort in Alabama," 13 Alabama Law Review 296, 322:
Most of the cases, delineating between which functions were governmental and which were ministerial, corporate, or proprietary, applied a benefit test, i.e., ". . . whether the act performed is for the common good of all or whether it is for the special benefit or profit of the corporate entity." City of Bay Minette v. Quinley, 263 Ala. 188, 190, 82 So. 2d 192, 194 (1955). Shortly after the legislature acted, the Court of Appeals had occasion to consider what the impact of the legislation was to be. In City of Bessemer v. Whaley, 8 Ala.App. 523, 531, 62 So. 473, 475 (1913), speaking through Judge Thomas, that court said:
From that point forward, this court has accepted the interpretation placed on the statute, and has continued to distinguish between governmental functions and corporate or proprietary functions, which has had the effect of making the legislative enactment ineffective in so far as changing the law as it had been judicially declared in this state since 1854. The only change effected by the statute was to eliminate the reference to municipal charters as the source of a city's duty to maintain the streets in safe repair. It is an anomaly that, since the act itself made no distinction between governmental and corporate functions but imposed liability in "street" cases, this court was put in the awkward position, after the enactment of the statute, of having to declare, to remain consistent with its prior holdings, that the duty to repair streets was "intrinsically ministerial," *72 since they have peculiar and local uses, saying in City of Bessemer v. Whaley, 187 Ala. 525, 527, 65 So. 542 (1914):
It is apparent, therefore, that the only force given to the enactment passed by the 1907 Legislature, in so far as charging the law of municipal immunity, was simply to perpetuate the law as it existed before the enactment.
Since that time, the litigant suing a municipality in tort must attempt to show that the function being performed which resulted in his injury was a corporate or ministerial one. Needless to say, this has resulted in some curious categories. Garbage collecting has been held governmental, City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771 (1923); but sewer disposal is corporate, Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419 (1957). Repair and maintenance of streets is proprietary or corporate, City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841 (1929); but operating a street sweeper to keep the streets clean is governmental, Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320 (1931).
In its present state, the only clue to whether a particular function is governmental or corporate must be found in cases expressly declaring that particular function to fall within one or the other category. The incongruities which have resulted from this effort has itself been the subject of frequent comment, both in Alabama and elsewhere. Copeland and Screws, Governmental Responsibility for Tort in Alabama, supra; Rhyne, Municipal Law, p. 732; Green, Freedom of Litigation (III): Municipal Liability for Torts, 38 Ill.L.Rev. 355; Phillips, "Active Wrongdoing" and the Sovereign Immunity Principle in Municipal Tort Liability, 38 Ore.L.Rev. 122; Davis, Tort Liability of Governmental Units, 40 Minn.L.Rev. 751.
This judicial sleight of hand could have been avoided entirely by giving to the 1907 legislative enactment its clear meaning. Yet, as case after case has come to this court urging it to correct this judicially created barrier to the courthouses of this state, the answer always given in denying that relief is that the relief sought, if to be obtained, must come from the legislature. In making that statement, this court has not recognized that in Alabama, it was this court which closed the courthouse doors in litigation of this kind as early as 1858; and when the legislature opened them in 1970, we closed then again and, in so doing, thwarted the will of the legislature.
The defendant city, in the instant case, argues just that again, i.e., that relief, if any, must come from the legislature, and we do not blame it. There is abundant authority to support the argument. We have supplied it. Yet, we have also said that the question of immunity "is judicial and not legislative in nature" in a case where the legislature sought to declare a function to be governmental. Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14 (1929).
No one believes in the validity of the rule of stare decisis and the necessity for stability in the law more than we do. We are equally, if not more so, adamant in our belief in the profound wisdom in the doctrine of separation of powers. Such is critical, in our opinion, to the survival of our system of government. Under that doctrine, no branch of the government may substitute its judgment for any other. Each branch has inherent powers denied *73 the others. The legislature had the power in 1907 to abolish municipal immunity for tort, there being no constitutional barrier to its action. This court should have bowed to that legislative prerogative rather than take the course it did, which was to treat the thoughtful legislation as no more than a restatement of the law as it then existed by judicial decision.
The rule of governmental immunity for cities, bottomed, as it is, on the English concept that the "King can do no wrong," is the antithesis of the very concepts upon which our government was founded. In fact, recent events have demonstrated dramatically that the "king can do wrong" in America; and when he does, he must pay the penalty for such wrongdoing.
As alluded to earlier, by the turn of the century this judicially created rule of immunity was under severe attack. In fact, England had, by that time, overruled the decision on which the American cases are founded, and municipal immunity for tort is not recognized by the law of England at this time. See Annotation 160 A.L.R. 7.
We, like everyone else, do not have the benefit of any legislative debate on what is now Title 37, § 502 et seq., Code. But, it seems to us that it is not unreasonable to suspect that the legislature was reacting to the ever-accelerating call for the abolition of what was by that time recognized as an unjust rule of law.
As strongly as we believe in the stability of the law, we also recognize that there is merit, if not honor, in admitting prior mistakes and correcting them. The city here argues that the failure of the legislature to act in this area constitutes its approval of the construction placed on its enactments by this court. It is equally arguable, as noted by Justice Currie, concurring specially in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 626 (1962), that ". . . they [the legislature] deferred to the supposed wisdom of the court, or else determined that the court should correct its own mistakes," or as Judge Moremen of the Court of Appeals of Kentucky responded to the same argument in Haney v. City of Lexington, (Ky.), 386 S.W.2d 738, 741 (1964):
The Supreme Court of New Jersey met the same argument in McAndrew v. Mularchuk, 33 N.J. 172, 193, 162 A.2d 820, 832 (1960), and said:
And again, by the Supreme Court of Washington, in Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash. 2d 162, 178, 260 P.2d 765, 774 (1953):
We earnestly believe that the responsibility for correcting what is universally condemned as a bad rule of law rests with this court. The rule of municipal immunity cannot be rationally defended. We agree with the statement made in Barker v. City of Santa Fe, 47 N.M. 85, 88, 136 P.2d 480, 482 (1943):
In abolishing the doctrine of municipal immunity, Alabama joins a growing number of states in abolishing governmental immunity as to various governmental units: Stone v. Arizona Highway Com., 93 Ariz. 384, 381 P.2d 107 (1963); Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961); Hargrove v. Cocoa Beach, Fla., 96 So. 2d 130, 60 A.L.R.2d 1193 (1957); Molitor v. Kaneland Community Unit Dist., 18 Ill. 2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469 (1959), cert. den. 362 U.S. 968, 80 S. Ct. 955, 4 L. Ed. 2d 900; Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); Haney v. Lexington, supra; Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W.2d 190 (1965); Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961); Brown v. Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963); B. W. King, Inc. v. West New York, 49 N.J. 318, 230 A.2d 133 (1967); Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970); Holytz v. Milwaukee, supra.
We observe, however, in none of the states mentioned above, so far as our research has revealed, was the court acting, as we are, to let the will of the legislature, so long ignored, prevail.
In departing from our earlier holdings in this area, a departure which we believe is required to let the legislative will operate, and also by justice, we recognize that the decision would work hardship on municipalities in this state which have relied on the earlier cases.
Many states have considered this problem and have applied the new rule in various ways. When Kentucky abolished the rule of governmental immunity, it dealt with the problem of the new rule's applicability and said:
The reasoning of the Kentucky Court has strong appeal. However, it is noted in that opinion, Haney v. City of Lexington, supra, that in a prior opinion ". . . this Court gave warning that it was dissatisfied with the rule of municipal immunity." (386 S.W.2d at 742) No opinion by this court has issued such a warning. For that reason, and for another to be expressed momentarily, we believe that the second alternative constitutes a reasonable compromise. Therefore, this holding is applicable to the appellant in the instant case, *75 and to all others suffering injury after the date hereof. There is ample authority for this treatment. Frequently referred to as a quasi-prospective abrogation, it is said to protect not only the governmental agencies in their probable reliance on the immunity, but also recognizes the efforts of the plaintiff in initiating the action. Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968); Molitor v. Kaneland Community Unit Dist., supra; Becker v. Beaudoin, supra. There is no constitutional prohibition against such treatment. Great Northern Ry. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360 (1932).
In deciding, as we do, that municipal immunity for tort is abolished in this state after the date of this opinion, we recognize the authority of the legislature to enter the entire field, and further recognize its superior position to provide with proper legislation any limitations or protections it deems necessary in addition to those already provided in Title 37, §§ 503 and 504, and in Title 37, § 476, Code.
The judgment appealed from is reversed.
Reversed and remanded.
FAULKNER, JONES, ALMON and EMBRY, JJ., concur.
BLOODWORTH, J., concurs in the result.
HEFLIN, C.J., and MERRILL and MADDOX, JJ., dissent.
MERRILL, Justice (dissenting).
I would affirm the judgment of the circuit court and, therefore, I dissent.
The statement the "King can do no wrong" appears three times in the majority opinion, and a casual reader of that opinion might get the idea that that concept is the basis of American and Alabama decisions upholding the doctrine of governmental immunity. That obviously is not the case.
Most of the words in our reversed Declaration of Independence, 200 years old in 1976, catalogue wrongs of the King, and those wrongs were the reasons for the support of our long war for independence from England and the rule and wrongs of the King. Then our own government, first under the Articles of Confederation and later the Constitution of the United States made certain that this new country would have no king.
Our doctrine of governmental immunity, both state and national, grew out of the common sense approach that the people had created a democracy under a republican form of government; that the government was the people, and the people's government should not be weakened by allowing the people to sue themselves when the government committed a tortious act while engaged in a governmental function. In McQuillin, Municipal Corporations, Vol. 18, 3rd Ed. Rev., Section 53.24, pp. 167 et seq., a recognized and oft-quoted authority, states:
In Alabama, the people have tried the doctrine both ways insofar as the State government is concerned. The Constitution of 1819, our first, provided: "The general assembly, shall direct, by law, in what manner, and in what courts, suits may be brought against the State." Statutes were passed in accordance with this provision. Clay's Dig. 339, §§ 143-146. In the Constitutions of 1865 and 1868, the people said "That suits may be brought against the State, in such manner, and in such courts, as may be by law provided." In Ex parte State, 52 Ala. 231 (1875), this court held that since the statutes authorizing suits against the state had been repealed, no such suits could be brought. But in the Constitution of 1875 and our present Constitution of 1901 (§ 14), the people had changed their minds and said, "That the State of Alabama shall never be made a defendant in any court of law or equity." No king or kingly concept had anything to do with those provisions of our Constitution.
Earlier in 1857 in the case of Dargan v. Mobile, 31 Ala. 469, where the City of Mobile was sued for a tortious act of a policeman, this court held that the city was "exercuting a governmental power vested in it for the public benefit" and said:
So it can be seen that the common-law rule of governmental immunity was in effect before any provisions were placed in the Constitution.
In 1907, the Legislature passed a new municipal corporations act, a part of which is Tit. 37, §§ 502-504, quoted in the majority *77 opinion. It was the duty and power of the judiciary of this state to interpret those sections. They were interpreted by both this court and the then Court of Appeals as not abrogating the rule of governmental immunity when a municipality was engaged in a governmental function for the benefit of the people. But this court has recognized the power of the Legislature to diminish that immunity in §§ 502-504. In 1954, this court, in discussing a dedicated street said in Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 73 So.2d 552:
In City of Decatur v. Parham, 268 Ala. 585, 109 So. 2d 692, this court, in replying to the same argument which was made and presented in the instant case, said:
It is my opinion that the holding in this case will be a heavy blow to law enforcement in Alabama. In practically every arrest or even detention for investigation, there is a physical touching of the suspect by the officer, either in frisking the person or handcuffing him, or both. An allegation and evidence that the officer used more force than was reasonably necessary would make a jury question in every suit against the officer and the municipality that employed him. Not only would the courts soon become clogged with such cases, but many of them would be filed merely as a permissible form of blackmail to force the city to settle for a dismissal or a lighter sentence or to force the officer to change his testimony in many such cases. Many arrests are made in unfriendly surroundings and the officer could easily be outsworn as to what happened. It is not to be expected that too many deputy sheriffs or policemen would physically block entrance to private or public buildings when faced with a large group of demonstrators, rioters or hoodlums when he knew that any act on his part, other than talking, would result in a suit against him and his employer.
*78 Then, there is a tremendous economic impact on the municipalities. This policy decision changes the rule drastically and it will come upon municipalities in Alabama without warning because for over 100 years the appellate courts of this state have applied the doctrine of governmental immunity when the agent or employee was engaged in a governmental function. There will be consideration of closing "public squares, parks, playgrounds and recreational facilities (all governmental functions, Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632), reducing other public services and hunting funds to pay additional and higher insurance premiums. It seems to me that some warning could have been given by this court that such a drastic change in the law was imminent. I also fear that the position of the majority probably means the future closing of many city and county Hill-Burton hospitals that are presently barely able to stay open.
This dissent is already too long. I close with some words of Justice Thomas E. Brennan of the Supreme Court of Michigan. These words express my sentiments. The background for the writing follows. In 1961, the Supreme Court of Michigan, in Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, by a 5 to 4 vote (one of the majority only concurred in the result), affirmed a decision which did away with governmental immunity from ordinary torts in Michigan and approved the holding in subsequent cases. On July 1, 1965, the Legislature of Michigan reimposed the doctrine by statute. In Smith v. Ginther, 379 Mich. 208, 150 N.W.2d 798 (1967), the plaintiff was injured in a collision with a car driven by a volunteer fireman while responding to a fire alarm. The accident occurred after the decision in Williams but before the Legislature reinstated governmental immunity. The trial court ruled that the legislative enactment did not control. The vote was 4 to 3 and Brennan, J., dissented. In his dissent, he said in part:
I would affirm the judgment of the trial court because this being a matter of important state policy, I remain of the opinion that it is a legislative rather than a judicial matter.
MADDOX, J., concurs. | July 10, 1975 |
e3a577ec-ace5-4580-a8a5-680470e18da4 | Louisville and Nashville Railroad Company v. Dollar | 314 So. 2d 867 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 867 (1975)
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
v.
Everett B. DOLLAR.
SC 770.
Supreme Court of Alabama.
May 22, 1975.
Rehearing Denied July 10, 1975.
Henry E. Simpson, Birmingham, for appellant.
Timothy M. Conway Jr., and Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
EMBRY, Justice.
This is an appeal by Louisville and Nashville Railroad Company (hereafter L *868 & N) from a judgment on jury verdict in favor of plaintiff, Everett Dollar (hereafter Dollar), in the amount of $17,500. The action was brought under the Federal Employers' Liability Act, 45 U.S.C., § 51.
In his oral charge to the jury the learned trial judge aptly summarized the claim of plaintiff as to the liability of defendant to him:
In light of the assignments of error and contentions of defendant on appeal it may be helpful to remember a provision of § 51, Tit. 45, U.S.C., which distinguishes actions brought under it from the usual negligence action. We find it expressed in this phrase:
Dollar was injured while manually sanding a railroad engine. The process of manual sanding involves carrying bags of sand to the engine. The bags are then lifted in one continuous motion to the top of the engine. The sand is placed in compartments on top of and at each end of the engine and is used to give the engine wheels traction in wet weather and for emergency stops. Dollar testified that as he was lifting a bag with force sufficient to throw or push it to the top of the engine, he felt a snap in his lower neck and upper back.
The questions presented for review by the twenty-three assignments of error may be summarized as follows:
(1) Was the verdict of $17,500 excessive?
(2) Did the trial court err in refusing to charge the jury that they could not award the plaintiff damages for a permanent injury?
(3) Did the trial court err in dealing with the issue of foreseeability of injury?
Appellant, L & N contends that the $17,500 verdict was excessive. It cites Williams v. Williams, 283 Ala. 292, 216 So. 2d 181 to support this contention. There this court found a $5,500 verdict excessive and ordered a remittitur. However, in Williams this court reiterated the rule applicable to the determination of adequacy or excessiveness of damages:
The standards applicable to review excessiveness of damages by the courts have oft been stated. To set aside the verdict of a jury on the ground of excessiveness of damages, it is required that the amount of such verdict be the result of passion, prejudice, partiality or corruption on the part of the jury. In the record there is sufficient evidence to support that verdict. The trial judge refused to set it aside after he heard the evidence and saw the plaintiff before him. We do not find it excessive.
*869 Central of Georgia Railway Co. v. Phillips, 286 Ala. 365, 240 So. 2d 118; Shepherd v. Southern Railway Co., 288 Ala. 50, 256 So. 2d 883.
L & N contends it was reversible error to refuse a requested written charge instructing the jury they could not base any award of damages on a permanent injury. L & N claims the "size of the verdict indicates that the jury might well have accepted the unsupported claim of a permanent injury despite the medical evidence to the contrary."
We note the trial judge stated in the presence of the jury, "I don't think there's any testimony the man has permanent injury." We also note there was testimony from Dollar's chiropractor that the injury might possibly result in some permanent impairment. By requesting the charge L & N contends that award of damages based upon possibility of permanent injury should have been removed from the jury's consideration. However
There was testimony by a physician that Dollar sustained no permanent injury. Also the trial court instructed the jury:
This instruction fairly covers the measure of recovery to be applied by the jury based on their view of the evidence. It specifically eliminates from their consideration any possible, but properly leaves to their consideration, probable (reasonably certain) injury. Refusal to give the charge requested was not error.
We start with the premise that
L & N says the trial court erred when it failed to charge the jury that their *870 verdict must be for L & N if it was not reasonably foreseeable that Dollar would be injured. To support this, L & N relies on Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618. Gallick and Nivens do stand for the proposition that foreseeability of injury is an ingredient of negligence in FELA cases. Stated otherwise, Gallick and Nivens require, in FELA cases, that the employee prove the employer negligent. But we do not read Gallick to require the charge requested. In Gallick the court said:
The Supreme Court thus properly defined negligence and admeasurement of the duty of the defendant in terms of acts or omissions of the reasonably prudent person under like circumstances. Such definition and admeasurement of duty encompasses the elements of foreseeability without the use of the words "anticipate" or "foreseeable." This is also true of the following oral charge, given by the trial court in this case:
Since the court's oral charge adequately covered the matters contained in the requested charge, there was no error in refusing the charge. Gilmore Industries, Inc. v. Ridge Instrument Co., 288 Ala. 127, 258 So. 2d 55; ARCP 51.
L & N also contends it was error for the trial court to refuse the following written charge:
Assuming this states a correct proposition of law, the trial court did not err in refusing it. We will not reverse for refusal to give a written charge which does not instruct the jury of its relation to the issues being litigated. Bagley v. Grime, 283 Ala. 688, 220 So. 2d 876. The issues in this case were whether defendant negligently failed to provide a reasonably safe method of sanding engines or negligently failed to provide adequate manpower to perform duties required of plaintiff. At best, the requested charge may possibly relate to the latter issue. There is, however, no indication of how the charge relates to that issue; it is merely an abstract legal principle. We also note there was evidence before the jury from which they could properly conclude that the practice of lifting the sandbags was dangerous as well as evidence that defendant railroad had agreed to reduce the weight of the sandbags, but had failed to carry out that agreement.
We have carefully reviewed the other assignments of error and find no fault with the trial court's rulings. The judgment is affirmed.
Affirmed.
HEFLIN, C.J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | May 22, 1975 |
d5cea161-b357-481b-b3c6-ee238c13aa60 | Taylor v. Owen | 319 So. 2d 672 | N/A | Alabama | Alabama Supreme Court | 319 So. 2d 672 (1975)
James TAYLOR
v.
Michael B. OWEN.
SC 952.
Supreme Court of Alabama.
September 4, 1975.
*673 Cunningham, Bounds & Byrd, and James A. Yance, Mobile, for appellant.
Hand, Arendall, Bedsole, Greaves & Johnston and Jerry A. McDowell, and Melvin W. Brunson, Guardian Ad Litem, Mobile, for appellee.
FAULKNER, Justice.
James Taylor filed suit in Mobile County against Michael B. Owen for damages for personal injuries suffered as a pedestrian when struck by a truck driven by Owen. The jury returned a verdict for the defendant. Taylor's motion for a new trial was denied.
The question for decision is whether or not the trial court judge correctly charged the jury on the doctrines of contributory negligence and subsequent negligence. We affirm.
Taylor contends that the oral charge by the court failed to define the law of subsequent negligence, as applied in Alabama.
The portion of the judge's oral charge to which he specifically objected reads as follows:
Taylor concedes that the judge gave several instructions, as requested, that properly stated the law of subsequent negligence. It is his position that, because of the difference between the initial oral charge given and the charges written by the parties and read to the jury by the judge, the jury was confused, to the prejudice of his case. The giving of proper charges cannot cure the giving of prejudicially erroneous ones, he asserts. He argues, furthermore, the court erred in giving Owen's requested charge No. 4; he contends the charge led the jury to disregard the issue of Owen's subsequent negligence. Charge No. 4 reads, as follows:
Owens argues that written charges given at the request of the parties became a part of the oral charge of the court, under Rule 51 ARCP. The minor discrepancies between the initial oral charge, and the written charges read to the jury are of no serious consequence, since the effect of the total oral charge was to apprise the jury correctly on the law of subsequent negligence.
Taylor is armed with a double-barreled argument: that prejudicially erroneous charges cannot be cured by giving other correct ones, and that the variance between the judge's oral charge and the written charges subsequently read aloud confused the jury. It is our opinion that both barrels misfired.
Harris v. Schmaeling, 270 Ala. 547, 549, 120 So. 2d 731, 732 (1960) contains the statement that, "It is, of course, axiomatic that the error in giving a prejudicially erroneous charge was not cured by the giving of other proper charges." Taylor relies heavily on this statement. He argues that once a prejudicial error has been made in front of the jury, it cannot be cured. This is an accurate statement, but mere error that is not prejudicial error can always be corrected. All the instructions must be considered together. The part of the judge's oral charge dealing with subsequent negligence was not prejudicial to the appellant's case. Granted, it did not explain the law of subsequent negligence to the jury; it was nothing more than an instruction on the initial duties of a motorist approaching a pedestrian and the corresponding duties of the pedestrian to the motorist. Correct charges were given, however, on the law of subsequent negligence; this is admitted by the appellant, since they were given at his request.
Taylor finds fault with one of the written chargesCharge No. 4which omitted reference to subsequent negligence. He relies on Kent v. Willingham, 276 Ala. 504, 164 So. 2d 500 (1964) for the proposition that the giving of a charge omitting consideration of subsequent negligence automatically is reversible error. This is not what we said in the case. Reversible error was committed when the charges "centered the attention of the jury on plaintiff's initial negligence, and, for practical purposes, led them to disregard the issue of defendant's subsequent negligence." (Emphasis added.) Here the attention of the jury was not centered on the initial negligence of the appellant. Rather, the series of written charges read to the jury, directed the attention of the jury to the issue of subsequent negligence. It did not, however, rivet the jury's attention on the alleged initial negligence of Taylor.
Before the advent of the new Rules of Civil Procedure, a variance between the oral and written charges could be a fatal error. Taylor cites Tyler v. Drennen, 255 Ala. 377, 51 So. 2d 516 (1951) and Montgomery City Lines, Inc. v. Scott, 248 Ala. 27, 26 So. 2d 200 (1946) for this proposition. Rule 51, however, makes the entire matter, the judge's oral charge and the written ones requested by the parties and given by the judge, the oral charge. Since the jury hears both, an appellate court must look to the total effect of the entire charge to see if there is reversible error. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So. 2d 251 (1975); Wren v. Blackburn, 293 Ala. 393, 304 So. 2d 187 (1974). We find no error.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | September 4, 1975 |
bd66fa08-8b63-4993-a648-787b058c1016 | Beecher v. State | 320 So. 2d 727 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 727 (1975)
In re Johnny Daniel BEECHER
v.
STATE of Alabama.
Ex parte Johnny Daniel Beecher.
SC 1054.
Supreme Court of Alabama.
July 10, 1975.
Rehearing Denied September 4, 1975.
*728 U. W. Clemon, Birmingham, Elaine R. Jones, NAACP Legal Defense & Educational *729 Fund, Inc., Jack Greenberg, New York City, for petitioner.
William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
EMBRY, Justice.
Petition for writ of certiorari was granted and we here review the Court of Criminal Appeals' decision in Beecher v. State, 56 Ala.App. 212, 320 So. 2d 716, 8 Div. 426 (1974), which upheld the third conviction of petitioner for murder in the first degree.
The former trials resulted in reversals on appeal. Beecher v. State, 280 Ala. 283, 193 So. 2d 505 (1967), rev'd 389 U.S. 35, 88 S. Ct. 189, 19 L. Ed. 2d 35 (1967); Beecher v. State, 288 Ala. 1, 256 So. 2d 154 (1971), rev'd 408 U.S. 234, 92 S. Ct. 2282, 33 L. Ed. 2d 317 (1972). These cases fully report the overall facts. We will discuss only those pertinent to review of the alleged errors occurring during the third trial. Those errors are said to consist in: (1) A remark made by the prosecutor in final argument was impermissible comment on defendant's failure to testify, (2) Blacks were systematically excluded from the jury venire. We find that Const. of Ala., 1901, § 6, mandates reversal, therefore we remand for new trial.
Petitioner's first contention is that a remark made in final argument by the District Attorney was impermissible comment on defendant's failure to testify. To decide if the remark was impermissible we must look to the testimony of Deputy Sheriff Kenneth Ray Phillips who related to the jury an extrajudicial self inculpatory admission of defendant Beecher.
"BY MR. BLACK:[1]
At the end of the State's case, petitioner rested without offering any evidence. Pursuant to directions by the trial court, the final arguments were not reported, except for objections and rulings made during the arguments.[2] At the close of arguments petitioner moved for a mistrial. The grounds for the mistrial were established by petitioner's attorney in the following manner:
"(WHEREUPON MR. CLEMON WAS SWORN BY THE COURT IN THE FOLLOWING MANNER)
Alabama Constitution, § 6, declares:
Code of Ala., Tit. 15, § 305, states:
Our statute goes further than the comparable federal statute, 18 U.S.C., § 3481. In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), the Supreme Court held that a prosecutor's comment on the failure of a defendant to testify was violative of U.S.Const., Amends. V, XIV. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), raised the possibility that such comments would not require automatic reversal when such a comment was harmless beyond a reasonable doubt, i.e., that the matter complained of could have in no way contributed to the conviction. More recently, however, the Supreme Court has raised the possibility that such prosecutorial comment may achieve the status of requiring automatic reversal.
In the following case, although it did not deal with the prosecutor's comment on the failure of a defendant to testify, the matter of comment by the prosecutor about defendant (and counsel for him) made during final argument was the subject of review. The statement of the Supreme Court in that case is instructive:
Where there has been direct comment on defendant's failure to testify, and the trial court has not promptly acted to cure such a statement, the conviction must be reversed. Lamberth v. State, 54 Ala. App. 233, 307 So. 2d 43 (1975).
More difficult questions arise where indirect reference is made to defendant's failure to testify. In Padgett v. State, 45 Ala.App. 56, 223 So. 2d 597 (1969), the prosecutor remarked "Did anybody tell you under oath from the stand that John Allen Padgett didn't put that lock up there * * *." This was held to be an impermissible comment on the failure of the defendant to testify since he was the only one who could have refuted the State's testimony. In Padgett, supra, and King v. State, 45 Ala.App. 348, 352, 230 So. 2d 538, 541 (1970), it was said:
"Under Washington v. State, 259 Ala. 104, 65 So. 2d 704; Welch v. State, 263 Ala. 57, 81 So. 2d 901, and Taylor v. State, 279 Ala. 390, 185 So. 2d 414, § 305 is read literally, i.e., covert references are construed against the defendant. In other words, no matter what the jury might infer, there must virtually be a direct identification of the defendant alone as the individual who has not become a witness. Earlier cases to the contrary *734 apparently must be viewed askance. See Williams v. State, 43 Ala.App. 343, 190 So. 2d 556, and the border line case of White v. State, 44 Ala.App. 312, 208 So. 2d 222."
Presumably had there been someone other than Padgett who could have refuted the State's evidence, the decision in Padgett would have resulted in affirmance. See Street v. State, 266 Ala. 289, 96 So. 2d 686.
The difficulties of the virtual identification doctrine are illustrated by Welch v. State, 38 Ala.App. 239, 81 So. 2d 897, rev'd 263 Ala. 57, 81 So. 2d 901 (1955). A defendant's right not to testify must be preserved inviolate. But where the case presented by the prosecutor stands uncontradicted, should be not be allowed to comment on that fact to the jury in a situation where the defendant has not testified, offered no other evidence, nor elicited contradictions in the case of the State by cross-examination of witnesses for the State.
This presents competing principles which require accommodation. Before finding such accommodation we should discuss present construction placed on Code of Ala., Tit. 15, § 305. The appellate courts of this State have construed that statute strictly. As was said in Padgett, supra, it must be found that the prosecutor's comment is virtually a direct identification of the defendant alone as the person who has not testified. See Cates, Closing Arguments In A Criminal Case, 33 Ala. Law. 87, 212 (1972). In so construing Code of Ala., Tit. 15, § 305, our earlier cases have not given sufficient emphasis to Const. of Ala. of 1901, § 6. It has long been held regarding the introduction of illegal evidence, such as coerced confessions, that the test is not whether the illegal evidence did influence the jury, but whether it might have influenced it in arriving at the verdict. Hubbard v. State, 283 Ala. 183, 215 So. 2d 261 (1968), vacated in part 408 U.S. 934, 92 S. Ct. 2851, 33 L. Ed. 2d 747 (1972). See also Chapman, supra, and Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). Under Const. of Ala. of 1901, § 6, there is no valid basis for using a different test for improper prosecutorial comment. Thus we hold today that where there is the possibility that a prosecutor's comment could be understood by the jury as reference to failure of defendant to testify, § 6 is violated. We specifically disapprove any contrary cases[4] which construe Code of Ala., Tit. 15, § 305, as requiring reversal only when there is virtually a direct identification of the defendant as the one who did not testify. Such a construction of Code of Ala., Tit. 15, § 305, is not countenanced by the constitutional protections afforded under Const. of 1901, § 6.
The rule of Alabama constitutional law which we adopt today may make it appear that a prosecutor could never impress the jury with the fact that his case, or any facet of it, is uncontradicted. Where the State's evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury. In that circumstance the prosecutor could say: "There has been no refutation of any of the evidence presented by the State," or more simply, "The State's evidence stands uncontradicted," or other appropriate comment to like effect.
But it is concomitantly the duty of the prosecutor not to, in any manner, comment on the failure of the defendant to testify. Thus if there exists the possibility that the prosecutor[5] has commented in *735 such a manner that the jury may understand it as a comment on the defendant's failure to testify, it is for the trial court to cure this violation of prosecutorial duty by prompt and vigorous instructions to the jury informing them of defendant's right not to be compelled to testify and that they may draw no presumption from his decision not to testify. Tillis v. State, 292 Ala. 521, 296 So. 2d 892 (1974), and cases cited therein. In this regard we note that some comments can be so prejudicial as to be ineradicable. Stain v. State, 273 Ala. 262, 138 So. 2d 703 (1961); McLemore v. International Union, 264 Ala. 538, 88 So. 2d 170 (1956) (noncriminal case).
Under the specific facts of this case, we have no doubt that even under the rule enunciated in Padgett, supra, reversal is required. Our interpretation of the record leads to the conclusion that the "it" in "No one took the stand to deny it" could only refer to the testimony of Deputy Phillips. The jury could well have understood this as reference to Beecher's failure to testify. The trial court took no action to cure the effect of the prosecutor's comment. In this posture we cannot say that Beecher received the fair and impartial trial, free of constitutional infirmity, to which he and all other persons are entitled.
Since there must be a new trial we deem it appropriate to consider on this record Beecher's contention that blacks were systematically excluded from the jury venire. As to this contention and on this point our decision does not differ from that of the Court of Criminal Appeals in this case, 56 Ala.App. 212, 320 So. 2d 716 (8 Div. 426, 10-1-74). The decision of that court and the recommendation contained therein is very well stated in the words of Judge Wright, the author of that opinion.
We would add the following comments: Mere statistical disparity between the number of blacks presumed eligible for jury duty and the number actually included in the jury roll does not of itself establish a primary inference of invidious discrimination. Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972); Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). This is not to say that substantial disparity would not do so. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970). These cases illustrate that each case must be considered on its own peculiar facts. Alexander, supra, does indicate that where there is opportunity for discrimination then this, coupled with statistical disparity, may be enough to establish the rebuttable inference of impermissible exclusion.
Once a movant has by proof created a primary inference of discrimination, the burden shifts to the State to show there was no discrimination. This burden is met only by a clear and convincing showing that the selection process utilized was racially neutral. It is apparent from Alexander, supra, that if opportunity for discrimination is present, we cannot consider that resort was not had to it. Thus if a trial judge is confronted by evidence which shows, at least, opportunity for discrimination *736 and blacks were excluded from the venire then the primary inference arises. The burden then falls on the State to prove that in the process of venire selection, no consideration whatsoever was given to race. Affirmations of good faith alone, in the selection process, is insufficient to rebut the primary inference. Alexander, supra. The Const. of Ala. of 1901, § 6, guarantees that jury selection shall be free of discrimination and imposes a duty on officials who make such selection to insure that this guarantee remains inviolate. Brand v. State, 13 Ala.App. 390, 69 So. 379 (1915). See also Finnett v. State, 12 Ala.App. 237, 67 So. 768 (1915).
Reversed and remanded.
SHORES, J., and CATES, P.J. (sitting specially) concur.
HEFLIN, C.J., and MADDOX and JONES, JJ., concur specially.
MERRILL, BLOODWORTH and FAULKNER, JJ., dissent in part and concur in part.
MADDOX, Justice (concurring specially.)
I think that the prosecutor's statement in this case was a direct comment on the defendant's failure to testify. Consequently, I think this case must be reversed. I disagree, however, with that portion of the opinion which reads as follows:
I concur in part two of the opinion which holds that there was no showing of systematic exclusion of blacks from the Lawrence County jury venire.
JONES, Justice (concurring specially).
I concur with the majority opinion reversing and remanding this cause. I further agree with the rationale for its holding. I disagree with that portion of the opinion dealing with the "prompt and vigorous instructions to the jury informing them of defendant's right not to be compelled to testify . . ." I believe that the constitutional guarantee of the right against self incrimination is of such quality that its violation is incurable by any attempt on the part of the trial court to disabuse the minds of the jury with respect thereto. This is a bell once rung which cannot be unrung. In all other respects, I agree with the opinion.
HEFLIN, C.J., concurs.
BLOODWORTH, Justice (concurring in part, dissenting in part).
I concur in Part II of Mr. Justice Embry's opinion for the Court (affirming the Court of Criminal Appeals) and holding there was no showing of systematic exclusion of blacks from the Lawrence County jury venire from which the jury was chosen to try Beecher.
I dissent from the holding as to Part I because I do not think the "it" in "No one took the stand to deny it" is sufficiently identified so that it could be said to refer to the inculpatory statement testified to by Deputy Sheriff Phillips as having been made by Beecher to him. I would not go so far as the majority do and hold that "where there is the possibility that a prosecution's *737 comment could be understood by the jury as reference to failure of defendant to testify, § 6 [Alabama Constitution] is violated." I would affirm the Court of Criminal Appeals' decision in this regard.
MERRILL and FAULKNER, JJ., concur.
[1] John T. Black, Esq., District Attorney, Ninth Judicial Circuit. The State was also represented by Thomas C. Pettus, Esq., District Attorney, Thirty-Sixth Judicial Circuit.
[2] It is not required that final arguments be reported. Code of Ala., Tit. 13, § 262. We think the better practice in criminal cases, however, is for the trial court to require that final arguments be reported.
[3] Defendant Beecher was represented by U. W. Clemon, Esq., Elaine R. Jones, Esq., and Thomas J. Divens, Esq.
[4] In all candor we point out that prior cases on this question are bottomed on § 305 rather than § 6 of Const. of 1901; obviously § 305 is a legislative enactment of the principle involved which is contained in § 6 of Const. of 1901. Chamberlain v. State, 46 Ala.App. 642, 247 So. 2d 683.
[5] As distinguished from comment by the trial court in its instruction to the jury. Pierson v. State, 39 Ala.App. 346, 100 So. 2d 47. | July 10, 1975 |
df025e7e-171d-4b61-baa6-e4b7f5a4dbc3 | Standard Oil Company v. State | 313 So. 2d 540 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 540 (1975)
In re STANDARD OIL COMPANY, etc.
v.
STATE of Alabama.
Ex parte Standard Oil Company, a Division of Chevron Oil Co., a California Corp., formerly Standard Oil Co. (Incorporated in Kentucky).
SC 1240.
Supreme Court of Alabama.
May 22, 1975.
Rehearing Denied June 12, 1975.
Harry R. Teel and Robert G. Johnson, Birmingham, for petitioner.
William J. Baxley, Atty. Gen., and Willard W. Livingston, Counsel, Dept. of Revenue, and Asst. Atty. Gen., and Herbert I. Burson, Jr., Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for the State, respondent.
BLOODWORTH, Justice.
Petition of Standard Oil Company, etc. for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Standard Oil Co., etc. v. State of Alabama, 55 Ala.App. 103, 313 So. 2d 532.
Writ denied.
HEFLIN, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | May 22, 1975 |
da95da12-95ce-42cc-b40d-d00bdd3c480d | Brantley v. State | 317 So. 2d 348 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 348 (1975)
In re Jerry Dean BRANTLEY
v.
STATE of Alabama.
Ex parte Jerry Dean Brantley.
SC 1204.
Supreme Court of Alabama.
May 29, 1975.
J. Paul Lowery, Montgomery, for petitioner.
None for the State.
EMBRY, Justice.
Petition of Jerry Dean Brantley for writ of certiorari to the Court of Criminal Appeals to review, revise and reverse the judgment of that Court of 18 February 1975 in Brantley v. State, 55 Ala.App. 717, 317 So. 2d 347. The writ is denied on the sole basis of the failure of the petitioner to comply with the requirements of Supreme Court of Alabama, Rule 39, Code of Ala., Tit. 13, § 111(32).
Writ denied.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and SHORES, JJ., concur. | May 29, 1975 |
c8505b85-b25f-46b7-b983-3244b1ff63b2 | Langan Const. Co., Inc. v. Dauphin Island Marina, Inc. | 316 So. 2d 681 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 681 (1975)
LANGAN CONSTRUCTION CO., INC., a corp.
v.
DAUPHIN ISLAND MARINA, INC., et al., etc.
SC 1060.
Supreme Court of Alabama.
July 17, 1975.
Collins, Galloway & Smith, Mobile, for appellant. *682 J. George Whitfield, Jr., Mobile, for appellees.
SHORES, Justice.
The trial court granted defendant's (hereinafter referred to as marina) motion for summary judgment based upon the pleadings, affidavits, and depositions. The plaintiff appeals.
The complaint, as last amended, contains four counts. Each, in various language, charges the marina with negligence in failing to protect and safeguard the plaintiff's boat, which was docked at the marina, after the marina became aware of the boat's perilous condition and allowed it to sink. Three of the counts allege merely that the plaintiff docked its boat at the marina, paid the usual charge therefor, and that the marina negligently failed to take steps to save the boat after it knew that the boat was taking on water. The last count alleges that the marina had, on prior occasions, undertaken to provide services other than simply providing space for docking another boat belonging to the plaintiff; that such services included pumping a boat owned by the plaintiff and moored at the marina when it sat low in the water; and that the marina negligently failed to attempt to save the boat which is involved in this lawsuit.
The following facts are clear from a reading of the various affidavits and depositions offered in support of, and in opposition to, the marina's motion for summary judgment:
Plaintiff owned a boat which it kept at the marina before it acquired the Nauti-Lady. That boat, the Miss Misty, took on water from time to time while it was docked at the marina and, on some occasions, employees of the marina would put pumps aboard the Miss Misty and inform the plaintiff that it was taking on water and was in danger of sinking.
The Marina, through Mr. Taul, its owner, on deposition, said that he did not recall whether a charge was made for these services, but it is customary at the marina to charge boat owners by the hour when such services are performed.
There was no written slip rental agreement. It was the testimony of Mr. Taul that the arrangement between the marina and the plaintiff was purely a rental arrangement. The marina charges a flat rate based upon the length of the boat and exercises no control whatever over the boats moored there. The boat owners, including the plaintiff, take the boats in and out without notifying the marina. The plaintiff, on the other hand, says:
Before reaching the question of the propriety of granting the marina's motion for summary judgment, it seems appropriate to delineate the legal issues as we view them.
We agree with the marina that the cases dealing with the liability of marina operators fall into two categories. Where the marina leases a berth or stall for wet storage of a pleasure boat for a dockage fee and the owner retains control over the vessel, a relationship of lessor-lessee is established between the marina and owner, and the marina owes no duty to the owner-lessee. Richardson v. Port Vincent *683 Boat Works, Inc., 284 F. Supp. 353 (ED La. 1968); Florida Small Business Corporation v. Miami Shipyards Corporation, (Fla.App.1965), 175 So. 2d 46; Security National Insurance Company v. Sequoyah Marina, Inc., 246 F.2d 830 (10th Cir. 1957).
The second category of cases involves situations where the vessel is delivered to the marina for repairs or some other purpose, and the damage occurs while in the care, custody, and control of the marina before it is redelivered to the owner. Under such circumstances a bailor-bailee relationship is created and the bailee is charged with the duty of ordinary care and is liable for any damage resulting from his negligence. Stegemann v. Miami Beach Boat Slips, Inc., 213 F.2d 561 (5th Cir. 1954); Niagra Fire Insurance Company v. Dog River Boat Service, Inc., 187 F. Supp. 528 (SD Ala.1960); Annotation "Liability of Operator of Marina or Boatyard for Loss of or Injury to Pleasure Boat Left For Storage or Repair," 44 A.L.R.3d 1332.
The plaintiff argues that this case falls somewhere in between these two categories. It is the plaintiff's contention that there was at least an implied agreement on the part of the marina to perform salvage operations for boats docked at the marina once it became aware of any danger to the boats. The marina denies this.
We are not impressed with the plaintiff's argument that the marina owed a duty to attempt to salvage the Nauti-Lady because it had attempted in the past to save the Miss Misty. We cannot agree with the theory advanced by the plaintiff that, having undertaken to perform such services in the past without a request to do so, the marina was under a continuing obligation to perform such services.
Plaintiff contends that Noonan Construction Company v. Federal Barge Lines, Inc., 453 F.2d 637 (5th Cir. 1972), supports its argument on this point. In that case, Federal maintained a "fleeting" operation on the East Bank of Mobile River. Its facility was open to the public for storage of barges for six dollars per day. An additional charge was made for services rendered by Federal other than storage. It employed several watchmen, who were responsible for checking every barge hourly from 5 p.m. until 8 a.m. and to punch a time clock positioned on each barge at such times. It was the duty of the Federal watchmen to see that each barge was secure throughout the night. One of the barges sank during the night and its loss was not discovered until the next morning. The court concluded that Federal was liable to the owner, but said:
In Noonan, it was clear that Federal, by contract, agreed to keep watch over barges entrusted to its care and to see that such barges were secure while in Federal's custody. It is equally clear that Federal had assumed that duty. In the instant case, it is not clear that the marina had agreed or otherwise undertaken to perform such services. The plaintiff contends through its president that it was his understanding that the marina performed salvage services for boats moored there.
Plaintiff also argues that its position is supported by such cases as Standifer v. Pate, 291 Ala. 434, 282 So. 2d 261 (1973), and Beasley v. McDonald Engineering Company, 287 Ala. 189, 249 So. 2d 844 (1971). *684 These cases do stand for the proposition "that a volunteer is under a duty, once he has acted or assumed the duty, to execute the tasks undertaken with reasonable care," Standifer, supra; but this rule falls short of holding that, because one has voluntarily undertaken a task in the past, he is therefore under a duty to repeat such tasks in similar situations in the future. The duty, if any, of the marina here must be found in the agreement between the parties. Did it include, as the plaintiff contends, an implied agreement by the marina to "do what it could to safeguard the vessel" once made aware of the danger to it? It is not disputed that the marina did, on occasion, undertake to rescue the Miss Misty. However, it denies that such service was performed pursuant to the rental agreement. In Richardson v. Port Vincent Boat Works, Inc., supra, the court said:
The marina contends it had exactly the same arrangement with the plaintiff in the instant case. The plaintiff contends that the rental agreement carried with it more than merely rental of the boat slip. Mr. Langan says that "he thought" the arrangement also carried with it the obligation to safeguard the boats once they were imperiled and that fact was known to the marina.
The case is here to determine whether the trial court erred in granting the defendant marina's motion for summary judgment based upon the pleadings, affidavits, and depositions. In that posture, the court, in considering the motion for summary judgment, is required to construe the complaint, depositions, etc. most favorably to the plaintiff. Snyder v. Hillegeist, 100 U.S.App.D.C. 368, 246 F.2d 649 (1957).
The plaintiff has given its version of the arrangement between it and the marina. The marina has given its version. They are in conflict. Granted, it is but a "scintilla" of conflict, but even so, it has been held that if a scintilla of controversy of fact exists, the matter cannot be disposed of through summary judgment. Reagan v. Commonwealth Theatres of Puerto Rico, Inc., 300 F. Supp. 676 (D.C.Puerto Rico 1969).
Gulf Power Company v. Local Unions Nos. 676 and 1078, 229 F.2d 655 (5th Cir. 1956), involved the propriety of granting a motion for summary judgment. In that case, the Unions sued the Power Company, the employer, claiming that, for some ten years previously, the Power Company had furnished free transportation to the employees; and that it represented throughout that such free transportation was a part of the compensation and pay of the employees and had, therefore, become an express or implied condition of the written collective bargaining agreement between the Unions and the employer. The Power Company denied that any contract existed to furnish transportation and that it had undertaken, as a temporary measure, to provide transportation; but under the express declaration that it would be discontinued as soon as it appeared that private *685 transportation was available to the employees.
At that stage the trial court granted the Power Company's motion for summary judgment and the Unions appealed to the Court of Appeals for the Fifth Circuit. In reversing, Judge Brown said:
Here, too, we think it was too early to grant a motion for summary judgment. The extent, nature, and terms of the understanding, undertaking, or agreement, if any, concerning the undertaking of rescue operations for imperiled boats moored at the Dauphin Island Marina has not been determined.
The plaintiff might not be able to convince a jury that there was an implied agreement on the part of the marina to furnish these services. And even if it does, the jury might well agree with witnesses who, along with the marina, stated that nothing could have been done to save the Nauti-Lady with the equipment available. However, it is entitled to try. For, "A surmise, no matter how reasonable, that a party `is unlikely to prevail upon a trial, is not a sufficient basis for refusing him his day in court . . .'" Union Transfer Company v. Riss & Company, 218 F.2d 553, 554 (8th Cir. 1955).
Reversed and remanded.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | July 17, 1975 |
b7a87725-01e9-40f8-b9db-325610d473a5 | Fletcher v. TUSCALOOSA FEDERAL SAVINGS & L. ASS'N | 314 So. 2d 51 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 51 (1975)
Thomas F. FLETCHER et al., etc.
v.
TUSCALOOSA FEDERAL SAVINGS AND LOAN ASSOCIATION.
SC 1100.
Supreme Court of Alabama.
May 22, 1975.
*52 Drake, Knowles & Still, University, for appellants.
Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellee.
Isaac P. Espy, Tuscaloosa, for amicus curiae David P. Thompson and Sarah M. Thompson, in support of appellants.
Robert J. Russell, Montgomery, for amicus curiae Ala. Ass'n of Realtors; Odom, Argo & Enslem, Montgomery, for amicus curiae Ala. League of Sav. Ass'ns; Shannon, Odom, Robertson & Jackson, Birmingham, for amicus curiae Ala. Mortgage Bankers Assn.; C. John Holditch, Birmingham, for amicus curiae Cobbs, Allen & Hall Mortgage Co., Inc.; James M. Tingle, Birmingham, for amicus curiae Collateral Investment Co.; Spain, Gillon, Riley, Tate & Etheredge and John P. McKleroy, Jr., Birmingham, for amicus curiae Johnson-Rast & Hays Co., in support of appellee.
ALMON, Justice.
Appellants, plaintiffs below, filed suit in circuit court seeking declaratory relief upon an indebtedness which was allegedly usurious under existing state law. The suit was styled as a class action; the members of such class being composed of all persons loaned money by appellee, Tuscaloosa Federal Savings and Loan Association, the principal on such loan being greater than $2,000.00 and less than $100,000.00 and at an interest rate in excess of 8% per annum.
The promissory note upon which appellants obligated themselves to appellee reads in pertinent part:
The specific relief sought in appellants' complaint is a declaration "that [appellants and members of appellants' class] owes [appellee] only the principal amount borrowed on each note which charges interest greater than eight percent."
A motion to dismiss was interposed by appellee. In addition to alleging that appellants' complaint failed to state a claim upon which relief can be granted, appellee's *53 grounds for its motion to dismiss were, inter alia, (1) no charge of usurious interest rates as a matter of law, and (2) an absence of the general prerequisites for maintaining a class action under ARCP 23(a) (1)-(4) or the specific requirements of ARCP 23(b)(3).
Prior to the hearing on appellee's motion to dismiss, the parties entered into a stipulation of facts which in essence provided that; (1) appellee had loaned appellants monies secured by a mortgage on real property, (2) the interest on that loan exceeded the amount allowed by Tit. 9, § 60, Code of Alabama, 1940, Recompiled 1958, and (3) such interest was within the maximum finance charge permitted by Section 2, Act No. 2052, 1971, p. 3290, as codified Tit. 5, § 317, Code, supra.
The trial court, in the light of the foregoing stipulated facts coupled with appellee's 12(b)(6) motion to dismiss, treated the latter as a Rule 56 motion for summary judgment and without opinion (or a ruling on the maintainability of the suit as a class action), granted the motion.
On appeal, the sole assignment of error before us is the granting of summary judgment by the trial court.
Dispositive of the controversy is whether the legislature intended that Tit. 5, § 316 et seq., Code, supra (hereinafter, the Mini-Code) repeal those portions of Tit. 9, § 60 et seq., Code, supra (hereinafter, the Usury Law) which are repugnant. We hold that it did.
At the outset it is clear to us that the express language of the Mini-Code manifests a clear legislative intent that it apply to real estate mortgage loans: (1) Tit. 5, § 340, expressly makes "any loan, forbearance, or credit sale involving an interest in real property or the sale, lease or mortgage of an interest in real property,...." (Emphasis ours), subject to the maximum "finance charge" provisions of Tit. 5, §§ 316(a), 317. (2) Tit. 5, § 317, in turn speaks of "[t]he maximum finance for any loan or forbearance and for any credit sale." (Emphasis ours). (3) Finally, Tit. 5, § 316(a) states that in determining the permissible finance charge "any discount or point paid by debtor in connection with a mortgage loan on real estate, even though paid at one time, shall be spread over the stated term of the loan or forbearance or credit sale." (Emphasis ours).
The intention of the legislature must primarily be determined from the language of the statute itself. Where, as here, that language unambiguously calls for inclusion of loans on real estate mortgages, other rules of statutory construction are thereby rendered subordinant in the determination of legislative "intent." In re Opinion of the Justices, 267 Ala. 114, 117, 100 So. 2d 681, (1958); Alabama Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 62, 237 So. 2d 108, (1970); State ex rel. Moore v. Strickland, 289 Ala. 488, 493, 268 So. 2d 766, (1962); State v. Lamson & Sessions Company, 269 Ala. 610, 114 So. 2d 893, (1959). There is a strong presumption that the legislature did not do a futile thing when it expressly brought real estate mortgage loans within the regulatory purview of the Mini-Code. In re Opinion of the Justices, supra.
Looking to the provisions of the Usury Law which are inharmonious with the finance charge provisions of the Mini-Code, Tit. 9, § 60, provides in pertinent part:
By contrast the Mini-Code's definition of "finance charge," Tit. 5, § 316(a), reads:
In turn, Tit. 5, § 317, then sets as a maximum finance charge the following:
The same subject matter, interest, is dealt with in an inconsistent manner in the foregoing provisions of the Usury Law and the Mini-Code. This Court in Allgood v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 501, 71 So. 724, (1916) held:
By reference to the prevailing conditions in the state and national money markets in 1971, the year in which the Mini-Code was enacted, we have no hesitation in reaching the conclusion that the legislature clearly intended that it should cover the entire field of regulation of real estate mortgage loans made by institutions subject to the "finance charge" ceilings contained therein.[1] Inasmuch as the legislature sought to deal comprehensively with this mode of credit transaction and by including provisions in the Mini-Code incompatible with the 8% simple interest ceiling of the pre-existing Usury Law, the Mini-Code repealed by implication the repugnant sections of the old statute. Such is the rule in this state. Vaughan v. McCartney, 217 Ala. 103, 115 So. 30 (1927).
Repeal by implication is admittedly not a favored rule of statutory construction, but in State v. Bay Towing and *55 Dredging Company, 265 Ala. 282, 289, 90 So. 2d 743, 749 (1956), we find:
In holding that the maximum legal interest rates of the Usury Law and the maximum finance charges of the Mini-Code are irreconcilable under the facts of this case, we are not unmindful of the persuasive argument of appellant in brief that the two provisions can be ascribed mutually exclusive fields of operation thereby avoiding any repeal by implication. Specifically, that as interest is only one component of the Mini-Code's definition of "finance charge," it is still subject to the legal maximum rate of the Usury Lawthe remaining finance charges authorized by the Mini-Code constituting the balance of the total finance charge allowable under Tit. 5, § 317. We have rejected this construction.
The pre-Mini-Code cases cited by appellant which stand for the proposition that not all charges for the use of money can be properly called interest[2], graphically demonstrate why the legislature sought to statutorily put an end to the ofttimes imponderable queries as to where, as a matter of law, the demarcation between "interest" and additional charges for the use of money fell. For the most part, this troublesome issue had been rendered moot by the inclusive definition of "finance charge" contained in the Mini-Code. We note that in addition to resolving this issue, the Mini-Code has protected the borrower with an absolute litmus of whether he has been charged for the use of money in excess of that amount allowed by law, while at the same time providing prospective statutory flexibility in the light of an unstable money market.
In holding that the legislature intended the "finance charge" provision of the Mini-Code to be the sole indicia of what constitutes the maximum legal amount allowable for the use of money loaned thereunder, we have adhered to the rule set out in American Standard Life Ins. Co. v. State, 226 Ala. 383, 384, 147 So. 168 (1933):
There remains the question of the area of operation of the Usury Law, for if effect can be given consistent with the legislative intent to part of the provisions of an old statute, without violation of the provisions of the new, repeal by implication can be said to be only partial. Levy, Aronson & White v. Jones, 208 Ala. 104, 106, 93 So. 733 (1922).
Certainly, the 6% maximum interest rate where interest is contemplated but not stipulated in written contract, presents no conflict with any of the provisions of the Mini-Code and accordingly no repeal of that provisions has occurred.
In holding that the provisions of the Usury Law restricting the maximum legal interest rate is repealed for those credit transactions now regulated by the Mini-Code, we pretermit, for want of standing on the part of appellants, a ruling on their challenge of the statutory definition of "creditor" under Amendment XIV, U. S. Constitution or Art. 13, § 252, Alabama Constitution of 1901. Where a particular litigant is not within the group of persons affected by a statute or portion thereof which is allegedly unconstitutional, such litigant lacks standing to raise such constitutional issue. Marcet v. Board of Plumbers Examination and Registration of Alabama, 249 Ala. 48, 50, 29 So. 2d 333 (1947); State ex rel. Highsmith v. Brown Service Funeral Co., 236 Ala. 249, 253-54, 182 So. 18 (1938).
We are therefore of the opinion that the trial court ruled properly in granting judgment for appellee.[3]
The judgment is due to be and hereby is
Affirmed.
HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, SHORES and EMBRY, JJ., concur.
JONES, J., concurs specially.
FAULKNER, J., dissents.
JONES, Justice (concurring in the result).
I would wholeheartedly join in the dissent of my brother, Mr. Justice Faulkner, if the constitutional issues discussed in his dissent were properly raised and presented for our review. We are limited by the stipulation of facts submitted to the lower court by the parties and the issues raised thereby. Therefore, I concur in the result of the majority opinion to the effect that § 340 allows 8% add on finance charges and the 9% per annum simple interest charged here does not exceed that rate. To be sure, the parties stipulated that the 9% reflected by the mortgage, plus all other charges incident to the loan, fall below the maximum allowable rate prescribed by § 317.
I am constrained to comment on two aspects of the Mini-Code, particularly as it relates to real estate mortgages. While compromise is the hallmark of the legislative process, indirection amounting to outright deception, which permeates this Act, can only serve to breed disrespect for the institutions of government.
First, § 340 "backs" into coverage of real estate mortgages for purposes of the increased finance charges by exempting *57 those "covered" from all other provisions of the Act:
The legislative history makes apparent the following sequence of events:
The Mini-Code, absent § 340, was initially defeated by the legislature and lay on the shelf for two years prior to its reintroduction in 1971. The bill was on the verge of suffering its second defeat when the proponents offered to amend the bill by adding § 340 under the pretense of assuring the opponents of the bill that the Act could not be used by real estate mortgagees to exceed 8% per annum interest. By use of the double negative"None of the provisions... except provisions..."this amendment not only provided the real estate mortgagees with their cake, but allowed them to eat it as well. They were given all of the advantages of the Actincreased maximum finance chargesand were saddled with none of its disadvantagessanctions, penalties, etc.
Second, while this delusive method of inclusion is a serious and reprehensible flaw, it pales into relative insignificance when compared to the second evil that pervades the entire Actthat of fixing the allowable rate of finance charges at 8% add on. What a shame that the legislature's forthrightness in combining all allowable charges (interest, points, service fees, etc.) into one single finance charge stopped short of a maximum annual percentage rate fixed for such charges. The 8% add on rate authorized by § 317 can only be denominated as misleading and deceptive in and of itself. Admittedly, this is no new innovation (6% add on already existed under prior statutes), but the mellowing process of antiquity could hardly add a whit of purity to so rotten a scheme.
Instead of fixing an annual percentage rate (which incidentally, § 317(b) appears initially to do"$8 per $100 per year"the only forthright method of dealing with usury, the Act then alludes to the illusory gimmickry of the commercial community and provided for 8% add on" ... by computing the maximum rate authorized... on the original principal amount of the loan ... for the full term of the contract without regard to scheduled payments ..."
Given any typical factual situation involving monthly installments over a period of years, not even the experts can agree on the APR conversion rate. Indeed, it may run as high as 16% under this formula. The cost of borrowing money would equate the same figure whether the loan is repaid in monthly installments or if none of the principal or interest were due or paid until the last day of the mortgage period. Stated otherwise, under the latter hypothesis, the borrower receives no credit whatsoever, insofar as finance charges are concerned, for payments made during the term of the mortgage.
Proponents of "add on" argue that real estate mortgagees would not abuse the law by charging up to the maximum rate allowable, but would instead follow the traditional practice of charging a per annum percentage rate of 8½ to 9½, which is well within the add on method of computation prescribed by the Act. This argument begs the question because, if this be true, there is no need for a usury law in the first instance.
The legislature, in establishing public policy with respect to usury, is proscribing illicit conduct in the field of commercial lending. It can ill afford to be guilty of *58 conduct as reprehensible as that which it proscribes.
I realize that I have been severely critical of this Act, both from the standpoint of the method by which real estate mortgagees were included for purposes of the increased maximum rate of finance charges as well as the add on method of computing the maximum rate allowable. While not apologizing for either aspect of my criticism, let me hasten to say that it is entirely understandable that such things do occur. The myriad and complex items of legislation with which the members of the legislature find themselves continually faced, coupled with the pressure brought to bear by special interest groups, can only cause one to marvel that such matters do not occur with even greater frequency. I conclude on the note that a more adequate professional staff to assist those dedicated to the improvement of our laws is at least a partial answer.
FAULKNER, Justice (dissenting).
As Alice said, "Dear, dear! How queer everything is today! And yesterday things went on just as usual. I wonder if I've changed in the night."[1] I have not changed from my position in State of Alabama, ex rel. William J. Baxley, as Attorney General v. Leonard C. Johnson, Ala., 300 So. 2d 106 (1974). I therefore dissent.
This case presents the same issue as was presented in Baxley. i. e. whether Act 2052, Acts of Alabama, 1971, Vol. IV, p. 3290 (Mini-code) repealed § 60, Title 9, Code of Alabama 1940. In Baxley, subsequently withdrawn as a "sweetheart" suit, it was held there was no repeal by implication. Today, the court holds that § 60 was repealed by implication.
It is my opinion that the Mini-Code does not repeal § 60 of Title 9 by implication. Repeal of an act by implication is not favored by the courts. Ex parte State, In re State of Alabama v. Franco, Ala., 299 So. 2d 737 (1974); Board of Revenue v. State, 241 Ala. 175, 1 So. 2d 904 (1941); Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938). Courts can only learn what the legislature intended by what it has said, and have no right to stray into the maze of conjecture or search for an imaginary purpose in construing the statutes. Alabama Industrial Bank v. State, ex rel. Avinger, 286 Ala. 59, 237 So. 2d 108 (1970). The Mini-code provides no glaring or irreconcilable repugnance to § 60 of Title 9. The effect of the decision of this court until this opinion is that for a later statute to repeal an earlier one by implication, the repugnance between the two must be glaring and irreconcilable so that the two statutes cannot stand together. Bates v. State, 240 Ala. 609, 200 So. 779 (1941). Section 60 specifically provides for the rate of interest payable on a loan. Section 1(a) of the Mini-code provides for the payment of a finance charge which is defined as including "all charges . . . as an incident to the extension of credit, including interest, time price differential, points or discounts . . . service, carrying or other charge . . . loan fee, credit or investigation fee . . . ." (Emphasis added.) How could there be any irreconcilable repugnance here? How shall a borrower compute interest on his loan when it is included in the above conglomeration of charges? Interest is only one item in the make-up of the finance charge. The majority opinion permits a charge of 9% interest in this case. Is this true interest or is it a portion of the finance charge? The majority has permitted 8% add on interest without taking into consideration the other elements that go to make up the finance charge. From the record we do not know if there were any other charges. This goes beyond the statute. This will become a very common *59 thing with money lenders. They will charge 8% add on interest and as side effects will charge survey fees, credit fees, investigation fees, title examination fees, points, and a host of other charges that the borrower may or may not see on his closing statement. The draftsman of the findings of fact and conclusion of law in Baxley very skillfully included all items including interest in the finance charge in arriving at a maximum. Not so here. The majority concludes that 8% add on interest plus the other elements of the finance charge constitute the maximum. If this not be so, why state the finance charge to be the "sole indicia of what constitutes the maximum legal amount allowable for the use of money loaned." (Emphasis added.) Interest is a charge for the use of money. The conclusion of the majority is incredible.
In another area of no repugnance between the two statutes it is to be noted in § 1(a) that only discounts or points are required to be spread over the stated period of the loan. There is no provision for amortization of the interest. So, if interest is added on for a full term of say, 10 years, and the borrower wants to prepay his balance at the end of 5 years, what is his prepayment figure? The real estate borrower does not enjoy the prepayment privileges of receiving a refund of interest under § 3 of the Mini-code because the "bank" lender is exempt from all sections except § 1(a) and § 2.
The appellant, in brief, argues denial of equal protection of the laws. The argument is skimpy and one wonders why no citations or references were made. Was the appellant sincere in this area? Since the appellant has raised the issue I feel that it should be discussed.
Section 25 of the Mini-code specifically exempts state and national banks, savings and loan associations, credit unions, life insurance companies, and federally constituted agencies from all provisions of the Act except subsection (a) of § 1, and § 2. Section 18 exempts those organizations from licensing. Therefore, those organizations are exempt from any of the penalty provisions of the Act for usurious charges (§§ 15 and 24) and they are exempt from control of the Superintendent of Banks under § 17. The borrower has no recourse against the lender for overcharges under § 65, Title 9 because that section only applies to penalties for overcharges of interest prescribed in "this chapter." Interest, by this majority opinion, has no meaning. We are now dealing with finance charges. Since part of "this chapter" has now been held to be repealed, § 65 has no application. And, the borrower cannot look to the Act and the Superintendent of Banks for any help against abuse for overcharges, because of the exemption of those lenders.
The exemption of banks and savings and loan associations from licensing and penalties, while at the same time enjoying the privilege of charging "finance charges" as other creditors, is in violation of Article 1, § 22, Constitution of 1901. This constitutional provision states that the legislature shall not pass a law of exclusive or special privileges or immunities. The Mini-code not only grants special privileges to the exempted money lenders, but also grants them immunity for abuse of the law. This is repugnant to our form of government and out of harmony with the genius of our free institutions. Furthermore, by not granting a borrower a remedy for any abuse of the law by the exempted organizations and exacting penalties from other creditors for the same violation, the Minicode runs afoul of § 6 and § 13, Article 1, Constitution of 1901, by denying equal protection and due process of law. These constitutional provisions distinctly prohibit the type of discrimination allowed the exempt organizations under the Mini-code. Since there is no severability clause in the Mini-code, I would hold the entire Act constitutionally void. I would not pretermit *60 this issue on the flimsy excuse of "want of standing."
The brief of appellant did not argue the violation of § 45, Article 4 of the Constitution. But, the Act clearly violates this constitutional provision. The title of the Act states,
It clearly omits any reference to a consumer protection council provided for in § 26 of the body of the Act. Section 45, Article 4 of the Constitution provided that "Each law shall contain but one subject, which shall be clearly expressed in its title. . ." Even though the Act is colloquially called "Mini-code" it is not a "code of laws" and does not fall within the exception of § 45 providing for "bills adopting a code, digest or revision of statutes."
A code implies first a compilation of existing laws, their systematic arrangement into chapters or articles and sections with subheads, table of contents and index for ready reference; second, a revision such as to harmonize conflicts, supply omissions, and generally clarify and make complete the body of laws designed to regulate completely so far as a statute may, the subjects to which they may relate. Gibson v. State, 214 Ala. 38, 106 So. 231 (1925).
Section 45 has two requirements. First, "each law shall contain but one subject;" second, "the subject shall be clearly expressed in its title." This Act does not conform with these constitutional requirements. No liberal construction of the Act will correct this constitutional deficiency. Our cases have said in construing "each law shall contain but one subject" that if the title contains more than one subject and the entire Act refers to one of those subjects, the other will be treated as surplusage and the Act will be upheld. Hawkins v. Roberts & Son, 122 Ala. 130, 27 So. 327 (1898); Robinson v. Moseley, 93 Ala. 70, 9 So. 372 (1890). That construction cannot be applied here.
The majority opinion indicates that the constitutionality of the Act cannot be considered "for want of standing." I believe that they should not put off deciding the inevitable. One of these days an irate borrower is going to go to the money lender and say, "You have been charging me high interest under an unconstitutional statute." The lender will give him a gracious smile, sit back, and wait for a summons to court. Meanwhile, the usury law becomes "curiouser and curiouser."
It is my opinion that conventional mortgage loans to individuals on real estate are still subject to the maximum interest rates found in §§ 60 and 61, Title 9, Code of Alabama. The 6% add on rate stated in § 61 will permit a rate of up to 12% on a declining balance. Surely, this should be enough for the "criers" and "whimperers." Experiences in other states of this Union have shown that when interest on real estate loans for a long period exceeds 9% simple interest, loans go begging and foreclosures run rampant. It is an unlearned borrower who will obligate himself to a 30-year loan at an interest rate of 10% or 12%. Interest is the largest single item in the cost of a home. It cannot be passed on by the borrower as it can by the bank, the builder, or the materialman. To a business man, a bank or builder, interest is a commodityanother item in the cost of doing business. The home buyer is stuck with it. We are told by the amicus curiae that Alabama is a borrower state and high interest rates are needed to shore up the economy. They appear to be short-sighted and oblivious *61 to the fact that Alabama's per capita income ranks at the bottom of the list. Before a borrower can pay high interest, he must be given an income commensurate therewith. Increased incomes do not appear on the horizon, because every time a worker or union demands increased wages, the cry of inflation is heard. It is not increased wagesbut high interest, the dominant evil of inflation.
No respectable and sound banker will make long-term loans at high interest rates. But, with no fear of penalties under the Mini-code, and no recourse by the borrower against abuse, the sharks will move in. So, how queer it is today, and yesterday was just as usual.
The majority holds:
1. Real estate mortgages fall within the Mini-code on loans of over $2,000 and less than $100,000.
2. The interest on those mortgages can be 8% add on which can amount to 16% simple interest on a declining balance in equal payments, but may be an astronomical rate if the lender decides to demand interest repaid in unequal installments, which is permitted by the Mini-code.
3. The mortgage bankers, banks, savings and loan associations, insurance companies, etc., who are exempt from the Mini-code except those provisions permitting the interest charge, have a free rein without fear of any penalties for overcharge of interest or abuse of the law.
4. As those institutions are not subject to any control by the Superintendent of Banks, nor is there any penalty provisions in the Mini-code relating to them, the consumer borrower is at their mercy and the devil take the hindmost.
I would reverse the trial court.
[1] To assist the Court in arriving at this conclusion, there is ample authority that we look not only to the prevailing economic situation at the time of its enactment, but the economic consequences a particular construction might entail as well. League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167, (1974); State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So. 2d 509, (1974); Mitchell v. McGuire, 244 Ala. 73, 12 So. 2d 180 (1943); Baggett v. Webb, 46 Ala.App. 666, 248 So. 2d 275, (1971). Regarding the former, we are willing to take judicial notice of the fact that by 1971 interest rates on the national money market were rapidly approaching and in many cases had already exceeded those of our own usury law. In order for there to be a continuing supply of mortgage money available for instate borrowers, action by the legislature was imperative. Within the confines of well-established rules of statutory construction, we are naturally inclined to look to the historical context which here is a most persuasive indicia tending to validate the manifestation of the legislature's response to this problem.
[2] Darden v. Schuessler, 154 Ala. 372, 45 So. 130 (1907); Commercial Credit Company v. Tarwater, 215 Ala. 123, 110 So. 39 (1926); Pryor v. Associates Discount Corporation, 43 Ala.App. 394, 191 So. 2d 234 (1966).
[3] The ruling by the circuit court is without prejudice to any members of appellants' alleged class. Neither notice nor an opportunity to be heard was ever afforded such persons. Indeed, the record does not reflect that the circuit court made any ruling as to the maintainability of their suit as a class action required by ARCP 23(c)(1). Failure to so rule generally would necessitate remanding the cause to the trial court for such a determination. However, as we have reviewed this appeal on its merits ruling adversely to the proponent of the class, such a remandment would have served only to protract ultimate resolution of the merits.
[1] Lewis Carrol, "Alice's Adventure in Wonderland", The Complete Works of Lewis Carrol, Modern Library, New York, p. 28. | May 22, 1975 |
6376e881-bdcf-4cdc-9d13-f9419c6c6e16 | White v. State | 314 So. 2d 857 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 857 (1975)
David WHITE
v.
The STATE of Alabama.
SC 1154.
Supreme Court of Alabama.
May 22, 1975.
Rehearing Denied July 10, 1975.
*859 Orzell Billingsley, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen., and J. Donald Reynolds, Sp. Asst. Atty. Gen., for the State, appellee.
*860 FAULKNER, Justice.
David White was indicted on a charge of First Degree Murder. He was convicted in the Circuit Court, Perry County, Virgis M. Ashworth, J., of First Degree Manslaughter and sentenced to ten years in the state penitentiary. He filed an appeal in forma pauperis with the Court of Criminal Appeals. On February 28, 1975, the case was transferred to the Supreme Court.
The questions presented for decision are whether or not there was a proper arraignment; whether or not White's due process rights to a fair trial were abridged by the failure of the prosecution to make a transcript of the grand jury minutes and testimony, and by the conduct of the prosecution at the trial; whether or not certain expert testimony was properly admissible; and whether or not there was sufficient evidence properly in the record to sustain the verdict.
White's version of the facts of the case, which the State adopts, is as follows:
The Uniontown police were called to the Flame Club in Uniontown during the early morning hours of May 19, 1973, to investigate a shooting. They found the body of Lewis Fields lying in a side room adjoining the main barroom; a butcher knife was grasped in Field's right hand. There were no witnesses to the actual shooting.
Evidence presented at the trial showed that the deceased had been shot several times by forty-five caliber bullets. The parties stipulated that the shots were fired by the defendant.
Evidence was also introduced that the deceased had been rowdy and abusive to customers of the club and that the appellant, who was a partner in the operation of the club with his mother, had to chastise the deceased about his behavior on several occasions that night.
The only testimony directly involving the shooting was given by the appellant.
White testified as to Fields' rowdiness and to his rebukes of Fields. He stated that at approximately 3:00 A.M. Fields began to curse some of the female customers of the club. In response to Fields' demands, White entered the "Black-Light Room;" Fields then grabbed him, pushed him against a wall, drew a knife from under his shirt, and advanced on him in a threatening manner. White testified that he backed against the wall, felt for his gun, pulled it out and fired as Fields moved toward him with the knife. White then fled and threw the gun into a creek. The following Monday, May 21, 1973, White, in the company of his attorneys, surrendered himself to the police and made a written statement. White was not advised of his rights since his attorneys were present.
During the opening statement the District Attorney contended that the knife was placed in the hand of the decedent. In the closing statement he said the defendant ran a "beer joint." In both instances the trial judge gave curative instructions.
At the trial, to bolster his contention of self-defense, White presented several witnesses to testify as to his good character and to corroborate his version of what had transpired before and after the shooting.
The State presented testimony by the law enforcement personnel who had investigated the shooting and by the State toxicologist who had examined the embalmed body of the deceased. After being qualified as an expert, the toxicologist gave his opinion in response to a hypothetical question that the deceased would have dropped the knife he was holding if he had been struck in the arm by three forty-five caliber bullets.
On November 29, 1973, the defendant was found guilty. On March 8, 1974, a hearing on the defendant's motion for a new trial was held. The defense introduced evidence as to the bad reputation of the decedent and urged that a new trial be granted. The motion was denied.
*861 White contends that since arraignment is a "critical stage" in the trial, it is necessary to have a formal reading of the indictment. He implies that "Miranda warnings" should have been given him. He argues that he has a right to discover the grand jury minutes, and that the prosecution breached its duty to be fair and impartial. Another contention is that the hypothetical question asked of the toxicologist was improper and that the toxicologist should not have been permitted to give his opinion in response. A final contention is that the motion for a new trial should have been granted as there was insufficient evidence to sustain the verdict.
The State contends that there was no failure of arraignment since the judgment entry showed arraignment, plea, and trial. It argues that there was no error in failing to produce the grand jury testimony and minutes, since there was no statute requiring it to be recorded. The State further contends that the trial judge did not abuse his discretion in allowing the State toxicologist to testify as an expert, in permitting the prosecution to ask the hypothetical question it did, and in allowing the expert's answer. The State argues lastly that it carried its burden in proving guilt beyond a reasonable doubt.
The contention that there was error because of no formal arraignment is without merit. The judgment entry showed arraignment, plea, and trial. White did not plead to some unknown charge. He entered his plea of not guilty, and was present when the indictment was read to the jury.
Once a police investigation has ceased to be a general inquiry and has begun to focus on a particular suspect, when there has been a shift from the investigatory stage to the accusatory, the right to counsel attaches. Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). In cases of incommunicado interrogation in a police-dominated atmosphere, the "Miranda warnings" must be given, unless other fully effective means are devised to apprise accused persons of their right to silence and to assure a continuous opportunity to exercise it. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Miranda requires that the warnings must be given before the police may question a suspect in custody. An accused may, however, waive effectuation of these rights. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) furnishes the controlling standard for waiver, "an intentional relinquishment or abandonment of a known right or privilege." Courts must indulge in every reasonable presumption against such waiver. Here White's defense attorney was present when White made his voluntary statement. The attorney signed the statement as a witness. This constituted a "knowing and intentional waiver."
In Alabama there is no statute requiring that testimony before a grand jury be recorded. The latest pronouncement is Gaines v. State, 52 Ala.App. 29, 30, 288 So. 2d 810, 812 (1973) where it was stated, "Absent a statute requiring testimony before a grand jury be recorded and transcribed the general law does not require such testimony be recorded."
No citations are necessary to establish that a criminal trial is not a "sporting event" and that the prosecutor has a duty to be fair and impartial. Erroneous insistences and prejudicial conduct on the part of district attorneys tend unduly to prejudice and bias the jury against the defendant. It is not permissible for the solicitor to make an emphatic statement *862 that the defendant is guilty of the crime charged. Rowland v. State, 31 Ala.App. 605, 20 So. 2d 881 (1945). The prosecution's opening statement to the jury on what it expects to prove should be confined to statements based on facts admissible in evidence. Higdon v. State, 25 Ala.App. 209, 143 So. 213 (1932). Counsel, however, is to be allowed considerable latitude in presenting to the jury in his opening statement what he expects the evidence to show. Rogers v. State, 49 Ala.App. 78, 268 So. 2d 859 (1972). The trial judge must be given wide discretion in determining whether the making of a certain utterance by the District Attorney requires that a mistrial be granted. Ballard v. State, 51 Ala.App. 393, 286 So. 2d 68 (1973). Here the trial judge gave curative instructions as to the knife and the "beer joint." We find no error.
Where there are questions which inexperienced jurors are not likely to decide correctly, there is a necessity to admit opinion and conclusions of those specially skilled or experienced in the particular field; that is, experts who can give better opinions on a given state of facts. Kirkland v. State, 21 Ala.App. 348, 108 So. 262 (1926). Whether a witness is shown to possess the requisite qualifications of an expert is a preliminary question largely within the discretion of the trial court. Kitchens v. State, 31 Ala.App. 239, 14 So. 2d 739 (1943); Brown v. Mobile Electric Co., 207 Ala. 61, 91 So. 802 (1921). The appellate court will not reverse its ruling unless there has been an abuse of that discretion. Brown, supra; Lucy v. State, 49 Ala.App. 116, 269 So. 2d 134 (1972); Colvin v. State, 32 Ala.App. 142, 22 So. 2d 544 (1945).
Generally an expert can give an opinion based on personal knowledge, or based on a hypothetical question, or on a combination of hypothetical question and facts within his own knowledge. If the expert bases his opinion on his personal knowledge, he must first testify to the facts within his own knowledge upon which the opinion is based. Brown. The criterion for admission of expert testimony is that the witness, by study, practice, experience, or observation as to the particular subject, should have acquired a knowledge beyond that of ordinary witnesses. Kitchens, supra; Thomas v. State, 249 Ala. 358, 31 So. 2d 71 (1947). An expert may not give an opinion that invades the field of common knowledge. Ala. Great So. R.R. v. Bishop, 265 Ala. 118, 89 So. 2d 738 (1956). If the subject is within the common experience of laymen, if it can be intelligently described and understood by them, and if they can form reasonable opinions, expert testimony is not to be allowed. Experts cannot base opinions on conflicting testimony of witnesses, as this would invade the province of the jury in evaluating credibility.
In Alabama an expert is allowed to testify whether certain facts could or would cause a result, but not whether they actually did. Carpenter v. Walker, 170 Ala. 659, 54 So. 60 (1910). A limitation is that an expert is not allowed to testify as to the relative positions of the parties at the time a shot is fired. Crawford v. State, 262 Ala. 191, 78 So. 2d 291 (1954); McPhearson v. State, 271 Ala. 533, 125 So. 2d 709 (1960); Rigell v. State, 8 Ala.App. 46, 62 So. 977 (1913); Roden v. State, 13 Ala.App. 105, 69 So. 366 (1915); Uldric v. State, 43 Ala.App. 477, 192 So. 2d 736 (1966); Padgett v. State, 49 Ala.App. 130, 269 So. 2d 147 (1972). The jury is equally competent to examine the wounds and draw conclusions as to the relative positions of the parties. In Gipson v. State, 262 Ala. 229, 78 So. 2d 293 (1955), an expert was allowed to give an opinion that after the deceased was shot, he was knocked backward and fell on a bed. Kitchens stands for the proposition that the nature of a wound or injury, its probable *863 cause and effect can be shown by expert medical witnesses or witnesses shown to be familiar with such questions, as a sheriff, an undertaker, or others showing competency.
An expert may also give an opinion in response to a hypothetical question; the question must embrace facts supported by the evidence and relating to the matter upon which the expert opinion is sought. The facts may be proven or assumed; the hypothetical question is inadmissible if the factual foundation is nebulous. For the purpose of the question, the facts are assumed to be true. The truth of the facts assumed is for the jury; it must determine whether the basis upon which the hypothetical rests has been established. An accurate statement of Alabama law is found in Harden v. State, 26 Ala.App. 94, 155 So. 719 (1933), where the general rule was stated that an expert may give an opinion upon relevant matters under inquiry and he may base that opinion solely upon a hypothetical question without any personal knowledge of the matter inquired about. The hypothetical question should properly embrace only the facts in evidence and not certain matters as to which there is no evidence tending to support it. Rational inferences that may be drawn from testimony, as well as the positive and direct testimony itself, may form the basis for the question. Where the expert is not acquainted with the facts, which are in dispute, he may not express an opinion, but may be examined hypothetically. Benefit Ass'n of Ry. Employees v. Armbruster, 217 Ala. 282, 116 So. 164 (1928). An objection should be sustained where the hypothetical question invades the province of the jury as to a material issue in the case. Ledbetter Johnson Co. v. Hawkins, 267 Ala. 458, 103 So. 2d 748 (1958). In answering a hypothetical question, it is always permissible for an expert to use information gained from an examination, where such information has been testified to before the jury. In general, the proper form of a hypothetical question asked of an expert, when based on evidence in the case, rests largely on the sound discretion of the trial court, and that court will not be put in error unless the discretion is abused.
The State is on point in arguing that the qualification of expert witnesses and the form of hypothetical questions are matters within the discretion of the trial court judge. If the requisite predicate is laid for the expert testimony, and if the expert is duly qualified, he can give an opinion as to the cause of a wound and its effect. Smith v. State, 282 Ala. 268, 210 So. 2d 826 (1968). Gipson is directly on point; an expert could testify that a wound, occurring as it did, would cause the victim to be knocked backward. "It is but the expression of the result of an accumulation of circumstances of which he has expert knowledge" at 298. As White points out, the relative positions of the parties before a shot is fired is not a proper subject for expert testimony; the effect of a shot is. The force and value of the expert's opinion is, of course, open to be combatted by other proof, that the opinion was worthless, and its value was for the jury to determine, in connection with all the evidence. White v. State, 133 Ala. 122, 32 So. 139 (1902).
The burden is never on the defendant to establish his innocence; if the evidence raises reasonable doubt as to his guilt, he should be acquitted. Hubbert v. State, 32 Ala.App. 477, 27 So. 2d 228 (1946). The State is not required to prove the impossibility of the accused's innocence. Lovelady v. State, 15 Ala.App. 615, 74 So. 734 (1917). It need only prove guilt beyond a reasonable doubt.
Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes *864 beyond a reasonable doubt that the accused is guilty. Lowe v. State, 90 Fla. 255, 105 So. 829 (1925). Circumstantial evidence is said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts. Lowe, supra.
A trial judge has the power to grant a motion for a new trial if the verdict is contrary to the great preponderance of the evidence, or if there is newly-discovered evidence. Davis v. State, 245 Ala. 589, 18 So. 2d 282 (1944). Granting the motion is largely within the discretion of the trial court, whose discretion should not be exercised to grant the relief sought except in plain cases of deviation from justice and right.
Finally, White argues that certain evidence as to the victim's bad reputation was excluded. The law in Alabama is found in Headley v. State, 51 Ala.App. 148, 283 So. 2d 458 (1973); if the evidence in a homicide trial tends to show self-defense, the defendant may prove the victim's bad general reputation for peace and quiet, for violence, as tending to show the victim was the aggressor. The trial court judge gave the defendant ample opportunity to do this. The hearing on the motion for a new trial was not the proper time to introduce more evidence, for the most part cumulative.
We have searched the record and find no error.
Affirmed.
HEFLIN, C.J., and BLOODWORTH and EMBRY, JJ., concur.
ALMON, J., concurs in the result. | May 22, 1975 |
7ba67f2a-a28f-47ab-9a61-7f9ddfe4b90f | Canida v. US Reduction Co. | 314 So. 2d 279 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 279 (1975)
William T. CANIDA and Frances L. Canida
v.
U.S. REDUCTION CO. and XYZ et al.
SC 500.
Supreme Court of Alabama.
June 5, 1975.
Rehearing Denied July 3, 1975.
Taylor & Taylor, Russellville, for appellants.
Huie, Fernambucq, Stewart & Smith, Birmingham and Bedford & Bedford, Russellville, for appellees.
MADDOX, Justice.
William T. Canida and Frances L. Canida sued U.S. Reduction Company, claiming that the company negligently and wantonly discharged a large quantity of chlorine gas which damaged their property in the sum of $100,000.
The trial court directed a verdict for the company on the wanton count and the jury found for the defendant company on the negligence count. The Canidas' motion for a new trial was overruled. They appealed.
The Canidas claim that the trial court committed reversible error in granting the defendant company's request for the affirmative charge as to the wanton count in their complaint. We agree. We have examined the evidence and are of the opinion that there was at least a scintilla of evidence to support plaintiff's charge that the defendant company was guilty of willful or wanton misconduct. This court has held that where it was error to give the affirmative charge against a plaintiff on counts charging willful or wanton misconduct under the evidence, such error was not cured by the verdict of the jury finding against the plaintiff on the issue of simple negligence submitted to them by the court. McNeil v. Munson S.S. Lines, 184 Ala. 420, 63 So. 992 (1913); Buchanan v. Vaughn, 260 Ala. 482, 71 So. 2d 56 (1956). A synopsis of the Alabama rule is stated in Buchanan v. Vaughn, as follows:
The judgment of the trial court is due to be reversed.
Reversed and remanded.
MERRILL, JONES, ALMON and SHORES, JJ., concur. | June 5, 1975 |
46fbe61b-81db-4d0f-b533-68da7e414596 | Rainey v. Ford Motor Credit Co. | 313 So. 2d 179 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 179 (1975)
John W. RAINEY
v.
FORD MOTOR CREDIT COMPANY, a corporation.
SC 893.
Supreme Court of Alabama.
April 24, 1975.
Rehearing Denied June 5, 1975.
*180 J. Wm. Thomason, Bessemer, for appellant.
Charles Cleveland and Harvey L. Wachsman, Birmingham, for appellee.
MERRILL, Justice.
Plaintiff, John W. Rainey, filed an action claiming damages for the alleged conversion of a 1972 Ford pick-up truck. The trial court entered a summary judgment in favor of the defendant, Ford Motor Credit Company, and plaintiff appealed.
ARCP 56 permits a defending party to move for a summary judgment at any time. If the pleadings, depositions, answers to interrogatories, *181 and admissions on file, together with affidavits, 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, the summary judgment will be granted. State ex rel. Baxley v. Givhan, 292 Ala. 533, 297 So. 2d 357.
When the factual allegations in the pleadings of the party opposing summary judgment are supported by affidavits or other evidentiary material, they must be taken as true in ruling on the motion. First National Bank of Cincinnati v. Pepper, 2 Cir., 454 F.2d 626; Day v. United Automobile, Aerospace and Agricultural Implement Workers of America, Local 36 of UAW, 6 Cir., 466 F.2d 83.
Applying this standard, the facts as we must assume them for the purpose of this appeal appear to be as follows.
On March 2, 1972, Rainey purchased a new 1972 Explorer Custom pick-up truck from Jim Skinner Ford, Inc., in Birmingham, Alabama. He signed a conditional sales contract in which he agreed to pay the unpaid balance due for the purchase of the pick-up truck in 36 monthly installments of $110.08 each, beginning April 16, 1972. The contract provided that in the event of default in the payments by the buyer "Seller shall have all the rights and remedies of a Secured Party under the Uniform Commercial Code, including the right to repossess the Property wherever the same may be found with free right of entry, and to recondition and sell the same at public or private sale."
Thereafter, Jim Skinner Ford, Inc., assigned the conditional sales contract to Ford Motor Credit Company. Rainey made the payments until August, 1972.
On August 20, 1972, he called Ford Motor Credit and spoke to Wayne Johnson. Rainey requested a computation of the amount to pay off the balance due on the pick-up truck. Johnson replied that he would figure the pay-off balance and call back the next day. Johnson did not call back. Later, Rainey made a similar call with the same result.
Sometime thereafter, Rainey received a letter from Ford Motor Credit requesting payment. His wife also received one or two telephone calls from someone at Ford Motor Credit concerning payment.
Early in October of 1972, two employees of Ford Motor Credit came to Rainey's house. They stated that they either wanted a payment or the truck. Rainey then called Wayne Johnson and asked him about the previous request for a pay-off balance. Johnson did not remember the request. Rainey again asked Johnson to figure the balance due. Rainey told Johnson that he would get the money the next day. After Rainey's conversation with Johnson, Rainey gave the two employees the keys and they took the truck. There was no altercation. Rainey did not hear from Ford Motor Credit the next day, and he did not contact them.
After the truck was repossessed, Rainey received a notice, dated October 10, 1972, advising him that the truck would be sold after ten days unless redeemed. Defendant did not tell plaintiff the exact time or place that the truck would be sold.
Within the ten-day period provided for redemption, Rainey saw his truck parked in the parking lot at a local department store. He testified that he examined the truck and that it had a "little dent" on the left side that was not on the truck at the time it was repossessed.
On that same day, he called Johnson at Ford Motor Credit and again asked for a computation of the balance owed. He testified that Johnson agreed to send it, but never did.
In March, 1973, Rainey received a letter from Ford Motor Credit claiming a deficiency of $345.35. There was no evidence of any further communication between the parties until suit was filed by plaintiff on October 15, 1973. We note that defendant's *182 counterclaim was dismissed on motion of the defendant when the summary judgment was rendered.
Plaintiff contends that Tit. 7A, § 9-504, UCC, violates the due process clause of the Fourteenth Amendment to the Constitution of the United States.
Section 9-504 provides in pertinent part as follows:
Our determination of the § 9-504 issue necessarily involves Tit. 7A, § 9-503, UCC, which provides for "self-help" repossession. The first two sentences of § 9-503 read:
It is well-settled that the Fourteenth Amendment is directed against state action and not private action. Collins v. Hardyman, 341 U.S. 651, 71 S. Ct. 937, 95 L. Ed. 1253; New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25, reversed 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412, motion denied, 376 U.S. 967, 84 S. Ct. 1130., 12 L. Ed. 2d 83. So, in order to find a violation of due process in this case, we must first determine that §§ 9-503,9-504 involve "state action."
In Baker v. Keeble, 362 F. Supp. 355 (D.C.1973), affirmed 498 F.2d 365, the Federal District Court listed the situations where private conduct has traditionally been deemed "state action":
"At common law no judicial proceeding was necessary to foreclose a mortgage of personal property; but the mortgagee, after a forfeiture, might seize and sell the property in satisfaction of his debt * * *." 11 C. J., Chattel Mortgages, § 486, p. 695; Freeman v. Freeman, 17 N.J.Eq. 44.
The right of a creditor to repossess and resell collateral after default, where provided for by contract, was recognized in Alabama long before the adoption of §§ 9-503, 9-504. See Street v. Sinclair, 71 Ala. 110; Burns v. Campbell, 71 Ala. 271; Harmon v. Dothan Nat. Bank, 186 Ala. 360, 64 So. 621; DeMoville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704; Lineville National Bank v. Weaver, 16 Ala.App. 431, 78 So. 461. Thus, we find no state action, and need not reach the constitutional due process issue.
It should be noted, however, that it has been our practice not to decide any constitutional question except with reference to the particular facts to which it is to be applied. In the present case, the agreement provided for repossession and resale of collateral after default. On the other hand, §§ 9-503, 9-504 provide for "self-help" even when the agreement is silent on that point. We express no opinion as to the constitutionality of §§ 9-503, 9-504 as applied to contracts which do not provide for repossession and resale after default.
*183 The next issue raised by plaintiff involves Tit. 7A, § 9-506, UCC. Section 9-506 provides:
While there is no provision in § 9-506 requiring the creditor to advise the debtor of the amount necessary to redeem, plaintiff submits that one must necessarily be implied, and that failure of the defendant to furnish a computation of a pay-off balance upon a telephone request by the plaintiff excuses tender. We do not agree.
While the creditor may in some cases be required to furnish such information, plaintiff's demand was not sufficient. No written request was ever made.
Title 7A, § 9-208, UCC, provides in part as follows:
Plaintiff cites Tit. 7, § 731. That section is not apt since it applies to redemption of real estate. We note that it also required a "written" demand for a statement of the debt or charges.
Plaintiff also argues that the fact that the truck was seen by him in a parking lot with a dent on it between the time it was repossessed and the time of sale was evidence of a conversion by defendant and thus the trial court erred in granting a summary judgment.
UCC § 9-501, under Default, provides in pertinent part that "A secured party in possession has the rights, remedies and duties provided in section 9-207"; and § 9-207(4) reads in part: "A secured party may use or operate the collateral for the purpose of preserving the collateral or its value * * *."
In Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247 (pre-UCC), this court said as to some counts in trover: "But as defendant had the legal title and the lawful right to the possession, manifestly there could be no recovery for a conversion, * * *." This statement is quoted with approval in First National Bank of Butler v. Sturdivant, 288 Ala. 133, 258 So. 2d 715 (1972). This is also the theory of the Alabama cases cited supra. It is consistent with these cases that the defendant would have the right to use the truck after default and repossession.
Plaintiff cites in brief § 9-504(3) as authority for this contention. That section contains sale and notification requirements. There is no contention that these requirements were not met.
We do not find that there is a genuine issue as to a material fact upon which relief can be granted; and we conclude that the defendant was entitled to the summary judgment entered by the trial court.
Affirmed.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | April 24, 1975 |
8ffae6a9-d2eb-46d2-ab3d-9d262c17ca89 | Brown v. State | 314 So. 2d 721 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 721 (1975)
In re Charles BROWN
v.
STATE of Alabama.
Ex parte Charles Brown.
SC 1296.
Supreme Court of Alabama.
June 19, 1975.
Parker & Garrett, Birmingham, for petitioner.
None for the state, respondent.
MADDOX, Justice.
Writ denied.
By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So. 2d 388 (1961). A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S. Ct. 269, 60 L. Ed. 629 (1916). Our denial of the writ should not be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108 (1971).
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur. | June 19, 1975 |
b7ef1a74-ee18-4fde-9b99-35cda4c1690d | Perdue v. Roberts | 314 So. 2d 280 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 280 (1975)
Flora Lee PERDUE
v.
John Henry ROBERTS, Jr., et al.
SC 975.
Supreme Court of Alabama.
June 5, 1975.
*281 Richard H. Gill, Montgomery, for appellant.
L. Y. Sadler, Jr., Camden, for John Henry Roberts, Jr.
JONES, Justice.
Although arising in the context of a sale for division, the issue presented by this appeal calls into question the trial Court's construction of a will.
At the time of his death in 1950, E. B. Perdue owned in Wilcox County a 360-acre farm and an undivided ½ interest in an adjoining tract of 393 acres. His brother, C. C. Perdue, owned the other undivided ½ interest in the 393 acres. When C. C. Perdue died, his undivided ½ interest devolved to his heirs at law, one of whom sold an undivided ½ interest to one of the appellees, John Henry Roberts, Jr. Roberts brought the bill of sale for division and named Flora Lee Perdue, the appellant and widow of E. B. Perdue, along with the heirs and successors of C. C. Perdue and two leasehold tenants as parties respondents.
Consequently, in order for the trial Court to determine the interest of each party, particularly that of Flora Lee Perdue, a construction of E. B. Perdue's will was necessary. Articles Three and Four of the will are as follows:
The initial issue raised by the previous excerpts of the will is that since E. B. Perdue owned a 360-acre farm in fee and an *282 undivided ½ interest in an additional adjoining 393-acre tract, what interests did he attempt to pass to his wife, Flora Lee? That is to say, did both the farm (360 acres) and his ½ interest (in the remaining 393 acres) pass under Article Three, leaving her a life estate in each, or did the ½ interest pass to her under Article Four, the residuary clause, in fee?
Mrs. Perdue contends that her husband intended under Article Three to leave her a life estate in the 360-acre farm with an unconditional right to sell up to 40 acres a year should she, in her own opinion, decide that she needed additional income; and that he intended under Article Four to devise to her in fee his ½ undivided interest in the 393-acre tract. Alternatively, she contends that if she does have only a life estate in the ½ interest in the 393-acre tract, she should be allowed the monetary equivalent of her interest annually therein from the sales price.
On a stipulation of facts, the trial Court decreed that both tracts passed under Article Three, giving Mrs. Perdue a life estate in each tract of land. As to the sale of her ½ interest in the 393-acre tract, the Court was also of the opinion, "that Mrs. Perdue is entitled to the interest for her lifetime on said proceeds, inasmuch as the tract of land sold was a one-half interest for life" and that "Mrs. Perdue has the further right upon appropriate showing of need or necessity to receive from one-half of the net proceeds of the sale such additional funds as shall not exceed the equivalency of forty acres per year." The foregoing is assigned as error.
Because none of the evidence was taken orally before the trial Judge rendering the decree, there is no presumption in favor of his findings from the evidence, and on appeal we must sit in judgment on the evidence. Sheehan v. Liberty Mutual Fire Ins. Co., 288 Ala. 137, 258 So. 2d 719 (1972); Machen v. Wilder, 283 Ala. 205, 215 So. 2d 282 (1968). Accordingly, the facts being virtually without dispute, we will now proceed to apply the law to the facts in order to determine whether the trial Court's interpretation of the latent ambiguity in the will was in accord with E. B. Perdue's intent at the time he drew up his will.
We disagree with the trial Court's interpretation. We reverse and remand for further proceedings in connection with the sale for division not inconsistent with this opinion.
We hold that Mrs. Perdue received a life estate in the 360-acre farm under Article Three, and a fee simple title in the undivided ½ interest in the 393-acre tract.
A summary of the basic rules of construction which guides our consideration follows:
Where an ambiguity exists in a will, the courts should construe the will so as to give effect to the intent of the testator, and should seek to reconcile all the provisions so as to give effect to all provisions and to form a harmonious whole. Such reconciliation must also give effect to the residuary clause. First National Bank of Birmingham v. Klein, 285 Ala. 505, 234 So. 2d 42 (1970); Curlee v. Wadsworth, 273 Ala. 196, 136 So. 2d 886 (1962); Sewell v. Byars, 271 Ala. 148, 122 So. 2d 398 (1960); Watters v. First National Bank of Mobile, 233 Ala. 227, 171 So. 280 (1963); Henderson v. Henderson, 210 Ala. 73, 97 So. 353 (1923).
The intention of the testator is the polestar to guide a court in the construction of a will and, in arriving at the testator's intention, the court should consider the instrument as a whole and not construe any paragraph separately. Wilson v. Skelton, 262 Ala. 504, 80 So. 2d 633 (1955); Allen v. Maxwell, 249 Ala. 655, 32 So. 2d 699 (1948); Smith v. Nelson, 249 Ala. 51, 29 So. 2d 335 (1947).
When there are latent ambiguities in a will, resort may be had to extrinsic *283 evidence in ascertaining the intent of the testator. Rice v. Park, 223 Ala. 317, 135 So. 472 (1931).
In construing a will, the court should look to the position of the testator under all the circumstances, and should recognize the natural inclination and purpose of the testator to favor his wife over remote heirs who are not his lineal descendants. Ramage v. Ramage, 358 Ala. 81, 61 So. 2d 432 (1952); George v. Widemire, 242 Ala. 579, 7 So. 2d 269 (1942); Bradberry v. Anderson, 240 Ala. 681, 200 So. 762 (1941); Montgomery v. Montgomery, 236 Ala. 161, 181 So. 92 (1938).
Provisions in a will for the support of a surviving widow are to be construed most favorably to her. Ramage, supra; Bradberry, supra.
The residuary clause as well as the other clauses in a will must be so considered and given a field of operation. Watters, supra.
It is not the purpose of construction to substitute the will of another (including that of the court) for that of the testator. Naugher v. Hinson, 211 Ala. 278, 100 So. 221 (1924).
When the language of Article Three is read together and analyzed as a whole, the substance of E. B. Perdue's devise to his wife, Flora Lee Perdue, may be summarized thusly:
(1) a life estate in his farm,
(3) her deed conveys absolute and full title thereto; and
(4) operates as conclusive evidence of need.
The resolution of the ultimate issue is explicit in our response to the question:
Can each of the foregoing elements of the testator's intent, as expressed in Article Three, be given equal application as to both the 360-acre tract and the 393-acre tract? The answer is readily apparent. Each of these elements of his intent can operate fully only as to the 360-acre tract. Indeed, we need go no further than the absolute and unconditional power of disposition to determine that this element of his intent cannot be given effect with respect to the 393-acre tract because of his ½ undivided interest therein.
The will could only devise to the widow that interest which the testator owned at his death and this ½ undivided interest effectively prevented her from exercising the unlimited power of disposition as to that portion of his property. She could neither carve out for sale the requisite 40 acres per year, nor could she pass "absolute and full title thereto."
Conversely, if the 360-acre tract passes under Article Three and the 393-acre tract passes under Article Four, all elements of his intent with respect to all of his property are given full effect. Moreover, this construction relieves the trial Court of the dilemma in which it found itself in requiring the widow to petition the court by a showing of need (of itself violative of the absolute power of sale) in order to invade the principal acquired from the sale of the subject property.
It follows, therefore, that E. B. Perdue devised to his widow, Mrs. Flora Lee Perdue, a fee simple estate in and to his ½ undivided interest in the 393-acre tract under Article Fourthe residuary clauseof his will.
Reversed and remanded with instructions.
HEFLIN, C.J., and MERRILL, MADDOX and SHORES, JJ., concur. | June 5, 1975 |
b4df3007-b71f-42d7-8392-aa7e3270a205 | Fraternal Order of Police, Strawberry Lodge 40 v. Entrekin | 314 So. 2d 663 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 663 (1975)
The FRATERNAL ORDER OF POLICE, STRAWBERRY LODGE #40, et al.
v.
Larry ENTREKIN et al., etc.
SC 856.
Supreme Court of Alabama.
May 22, 1975.
*665 Charles A. Tarter, Birmingham, for appellants.
James F. Berry, Cullman, for appellees.
EMBRY, Justice.[1]
This is an appeal by plaintiffs from judgment dismissing an action seeking declaratory judgment and injunctive relief.
Plaintiffs describe themselves and defendants, in the complaint, as follows:
In an abortive attempt to maintain the action as one for a class, the complaint contains the following allegations:
The complaint failed to allege or suggest that "the claims * * * of the representative parties are typical of the claims * * * of the calass" per requirements of ARCP 23(a)(3). We note this in passing and eschew elucidation of Rule 23 for a more fully developed case.
To facilitate understanding of what is to follow, the balance of the complaint is here set out (omitting only signatures and acknowledgments):
A motion to dismiss was filed on behalf of Thurman Murphy, Herman Pruitt and J. J. Vanderver, individually and as members of the Personnel Board of the City of Cullman, Alabama; the City of Cullman, Alabama, a municipal corporation; Larry Entrekin, Cecil Rowmine and L. J. Carr, individually and as City Councilmen of the City of Cullman, Alabama.
Among other grounds, the Murphy-Pruitt-Vanderver motion contained the following:
The City of Cullman motion:
The Entrekin-Rowmine-Carr motion:
After the motion to dismiss was filed the following order was entered by the trial court:
IT IS ORDERED AND ADJUDGED THAT:
DONE this 14th day of March, 1974.
FILED IN OFFICE MARCH 14, 1974 RUTH GASSER CIRCUIT CLERK"
Then another order was entered, reciting:
IT IS ORDERED AND ADJUDGED THAT:
FILED IN OFFICE MARCH 28, 1974 RUTH GASSER CIRCUIT CLERK"
On 24 April 1974, judgment was entered dismissing the action. It contained findings:
In this posture the question before the court is the propriety of dismissal of this action under ARCP 12(b)(6) upon failure of plaintiffs to amend complaint or respond to the motion for summary judgment (by affidavit or otherwise). To make this determination we must consider the intent of developed principles of administrative law together with the proper operation of "notice" pleading under ARCP 8, 12 and 78.
The response to public necessity for continuing supervision of certain aspects of our governmental system has been the creation of administrative agencies. The creation and growth of these regulatory agencies is no mere accident. Their existence is in response to a perceived need.
Mr. Root was speaking, of course, about the newly developing federal administrative system. His comments are equally applicable to the counties and cities of Alabama which will need, as they continue to grow and prosper, new governmental machinery to cope with the complexities of government at every level, generated by expansion. In this case, legislative reply was to establish a civil service system for the City of Cullman, Alabama. Perusal of the title of Act 2123 (Vol. IV, 1971 Acts of Alabama, p. 3404, attached as appendix to this opinion) indicates the underlying purposes of the Act:
Within the Act itself we find:
We mention these particular sections of the Act to emphasize that its very enactment makes clear the legislature intended to establish a civil service system administered by the personnel board. The plaintiffs acknowledge this in their complaint set out supra. Act 2123 is the legislative response to the perceived need of the City of Cullman to adequately deal with the increasingly complex problems of personnel administration.
Unlike the federal system, in Alabama there is a paucity of law, statutory or case, concerning the proper role of the judiciary as it relates to the function of administrative agencies such as the one with which we are presently concerned. We have adopted the doctrine of exhaustion of administrative remedies. It requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted. Simpson v. Van Ryzin, 289 Ala. 22, 265 So. 2d 569; Ex parte State ex rel. Lyerly, 38 Ala.App. 630, 91 So. 2d 233.
In this case, no doubt, the doctrine could be strained to provide a methodology of appellate determination. However, the time has come to recognize the necessary pervasiveness of administrative function and we should proceed to develop our law to conform to the needs of established agencies.
*671 This requires first to consider the doctrine of primary jurisdiction or prior resort.
The claim for relief presented in plaintiffs' complaint is within the jurisdiction of the circuit court. City of Tuscaloosa v. Marcum, 283 Ala. 440, 218 So. 2d 254. Our inquiry into this matter is to first establish whether the circuit court properly dismissed the complaint at the time it did so. Was the doctrine of primary jurisdiction properly applied in the particular circumstances of this case considering plaintiffs' failure to amend or respond to the motion for summary judgment by evidentiary supplementation of their complaint? They were afforded ample opportunity to do that. The trial judge referred to the exhaustion doctrine. His use of that terminology causes no concern. That which is important to a decision whether invocation of the doctrine of primary jurisdiction or prior resort was correct is: do policies underlying the doctrine apply in a particular case?
One of the aims of the doctrine is to insure uniformity and consistency in dealing with matters entrusted to an administrative body. Texas & Pacific Railroad Co. v. Abiline Cotton Oil Co., 204 U.S. 426, 27 S. Ct. 350, 51 L. Ed. 553. Another factor which must be considered is whether referral to an agency is preferable because of its specialized knowledge or expertise in dealing with the matter in controversy. Far East Conference v. United States, 342 U.S. 570, 72 S. Ct. 492, 96 L. Ed. 576. See also United States v. Western Pacific Railroad Co., supra; United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 52 S. Ct. 247, 76 L. Ed. 408. Still another is whether initial review of the controversy by the administrative body will either assist a court in its adjudicatory function or perhaps alleviate entirely the need for resort to judicial relief. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 94 S. Ct. 466, 38 L. Ed. 2d 344; Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S. Ct. 573, 34 L. Ed. 2d 525, reh. denied, 410 U.S. 960, 93 S. Ct. 1411, 35 L. Ed. 2d 697. This latter factor indicates it is preferable to obtain the views of the administrative body concerning the statutes or rules with which it must work and how those statutes or rules should be applied to the controversy at hand. See Miron, Primary Jurisdiction, 43 Antitrust L.J., A.B.A., Issue No. 2, p. 329.
We hold today that when a court and an administrative agency have concurrent jurisdiction over a controversy, the court may decline judicial relief pending administrative review when the court finds that administrative review of the controversy will promote uniformity and consistency in the application of the pertinent statutes, rules and regulations; agency expertise is required, and initial agency review will materially assist the court upon later review. In stating this rule we use *672 a conjunctive form of expression. This should not be taken as demanding that all of the determinative factors be present simultaneously. Where one or more of the factors are present it is for the court to weigh the need of initial agency review against the right and need of the parties to immediate judicial determination. In ruling on such questions, a trial court should make known those factors considered in deciding whether to decline immediate judicial relief or not.
Before proceeding to consider the propriety of dismissal of the action entered upon plaintiffs' failure to amend their complaint or respond to the Rule 56 motion within ten days as allowed by the trial court in its order of March 14, 1974, together with the failure of plaintiffs to amend their complaint within ten days of the final judgment of dismissal as allowed by ARCP 78, we must consider the interrelation of the primary jurisdiction doctrine with ARCP 8 and 12.
ARCP 8(a)(1) requires that a pleading set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Under this rule the prime purpose of pleadings is to give notice. ARCP 8(a)(1) interacts with ARCP 12(b)(6) which permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." Stated in other terms, "* * * a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80, and this is the rule we have adopted in our recent cases. Bowling v. Pow, 293 Ala. 178, 301 So. 2d 55; Smith v. Potts, 293 Ala. 419, 304 So. 2d 578; Watwood v. R. R. Dawson Bridge Co., 293 Ala. 578, 307 So. 2d 692. Implicit in Conley and our cases is the requirement that the provable set of facts entitling plaintiff to relief must be according to a cognizable theory of law.
But what kind of pleading satisfies this rule? At least it should contain a broad general statement of the case and has been clarified in the following terms:
We agree that
In short, it is the function of pleadings under the rules to allow plaintiffs and defendants to open the door to developing their cases on the merits. But in so doing, a plaintiff must be careful not to allow that open door to slam shut.
With this as background we proceed to discuss particulars of the present case. In doing so we must carefully examine the complaint.
In paragraph four of the complaint plaintiffs allege that the City of Cullman and the personnel board adopted "Rules of the Personnel Board." The record, however, does not show these rules.
In paragraph five of the complaint plaintiffs allege they have sought to exercise rights under these rules and defendants prevented them from doing so. Specifically plaintiffs allege defendants failed to fill the job of Assistant Chief of Police by refusing to give a promotional examination for that position, failed to promote qualified personnel, filled positions with unqualified personnel, and failed to give examinations as required.
In the absence of the "Rules of the Personnel Board" any statement we could make about allegations of plaintiffs would be stated in a vacuum were it not for Act 2123, Section 6, which requires rules and regulations recommended by the personnel board and adopted by the governing body to be consistent with the Act. We, therefore, look to the Act to determine whether these allegations were sufficient to withstand the motion to dismiss. Construing the allegations most favorably to plaintiffs, such assert that defendants failed to perform certain administrative functions which Act 2123 requires of them. The question for us then becomes clear. In light of our announced doctrine of primary jurisdiction and its interrelationship with ARCP 8(a), 12(b)(6) and 78, are these allegations sufficient to withstand the motion to dismiss when considered with the particular facts of the case?
The doctrine of primary jurisdiction implies that matters entrusted by the legislature to an administrative agency, ought first be considered by that agency. Thus when a controversy arises as to how an agency is conducting its affairs, a demand for corrective action first should be made to that agencyprior resort. There is no allegation in plaintiffs' complaint that a demand for corrective action was made to the personnel board or to the governing body. In a typical lawsuit failure to so allege generally would not suffice to sustain a motion to dismiss. As already stated the purpose of pleadings is to provide defendants and plaintiffs with sufficient information upon which to begin honing with precision the issues and merits of a particular case. This process normally occurs following the pleading stage through pretrial and discovery procedures. In this case *674 the situation is reversed because of the existence of an administrative agency established by the legislature. That fact appears on the face of the complaint. The doctrine of primary jurisdiction provides when certain factors are present, as mentioned supra, then the honing of facts and issues first should be accomplished by the appropriate administrative body. Thus in the case where, as here, the doctrine applies, the function of pleadings is to do more than in the ordinary lawsuit. The pleadings must be more precise because the facts and issues should have been developed prior to and not after the pleading stage.
The failure to allege resort to, and demand for action from, the administrative agency involved creates a "built-in defense". This defense is not absolute, however, since the very character of the doctrine of primary jurisdiction or prior resort demands judicial determination whether factors are present that will delay the court adjudicating a particular controversy. Thus an order of dismissal normally would not be proper since it could develop upon hearing that resort to prior agency determination would not be required since those factors dictating such a resort were absent.
In plaintiffs' brief it is argued that resort should not be required because it would be futile since the agency from which they would have to seek corrective action is the one about whose actions they complain. Were this a case involving simply the doctrine of exhaustion of administrative remedies, that contention might have merit in certain instances. Futility of prior resort is not apt in this case under the doctrine of primary jurisdiction. Plaintiffs cite us to Calagaz v. Calhoon, 309 F.2d 248 (5th Cir. 1962), for the proposition that
Calagaz was a dispute between members of a local union and those of the national union with which the local union had been affiliated through a District of the national union. In a very detailed complaint facts were alleged which supported the conclusional allegation of "futility." Calagaz is distinguishable for other reasons. In the context of the case before us it is well to point out two of these reasons.
Since labor unions are not created by legislation and there is no legislative mandate to an administrative agency there is less reason to invoke the doctrine of primary jurisdiction. It should be kept in mind that the doctrine exists to seek proper accommodation between the courts and the legislatively created agencies entrusted with the administration of certain programs, in this case, that of a civil service system for the City of Cullman. Calagez is more akin to litigation between private citizens, not subject to legislatively mandated administrative programs, hence the greater need for immediate judicial relief.
In the present case the record before us discloses no policy decisions or other information about how the personnel board intends to function under Act 2123 or what rules the personnel board has promulgated.
*675 Futility of resort is important only insofar as it bears on the factors which the court must find present prior to invoking the doctrine of primary jurisdiction.
More to the point, dismissal in this case was correct for a more basic reason; plaintiffs were afforded at least two opportunities to persuade the trial court to entertain the action. They failed to take advantage of either of those opportunities. In its order of March 14, 1974 the trial court initially decided to treat the motion to dismiss as one for summary judgment and afforded plaintiffs ten days to respond to that motion. In its order of March 28, 1974, the trial court noted that the plaintiffs did not choose to respond to the motion. The action was then set over for consideration and the parties allowed in excess of two weeks to file briefs. On April 24, 1974 the court entered judgment dismissing the action and made findings. Unlike the federal rules, ARCP 78 gives an automatic right to amend within ten days when a motion to dismiss is granted. Plaintiffs also failed to exercise that right; instead, they perfected this appeal. Under this state of the record the dismissal was correct. The findings in the order of April 24, 1974 are sufficient determination of those factors permitting invocation of the doctrine of primary jurisdiction or prior resort. In those findings the trial court recognized a need for the agency involved to make certain factual determinations. The court also perceived a need for initial agency determination as to the policies and procedures under which that agency would choose to operate. The findings of the trial court are at least minimally sufficient to support a decision upon the basis of which the doctrine of primary jurisdiction could be invoked. This, coupled with plaintiffs' failure to avail themselves of at least two opportunities to persuade the court to entertain the action, is adequate to support the dismissal.
Our holding today that the dismissal was correct does not mean we approve of this procedure as that best to follow. The doctrine we adopt today better lends itself to either summary judgment or partial summary judgment. ARCP 56. By utilizing Rule 56 procedure the trial court can more adequately adjudicate whether there first should be resort to administrative determination. The latter procedure would be limited to the question of whether there should be initial resort to agency review or demand of specific action from it and would not extend to the merits of a particular controversy. A trial court may well choose to stay proceedings before it and retain jurisdiction pending agency review. This methodology would be especially appropriate where rights of parties may be affected by a statute of limitations or some other bar. See e. g. Far East, supra, and Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 86 S. Ct. 781, 15 L. Ed. 2d 709.
There was no reversible error in granting the motion to dismiss.
Affirmed.[2]
HEFLIN, C.J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.
To establish a Civil Service System for the City of Cullman; to provide a policy for the administration of this act; to divide positions in the city into classified and exempt services, and to provide for changes between such services; to provide a status for present employees; to provide personnel rules and personnel plans of the city; to provide for the organization of the Personnel Board of the city, to establish the qualifications of its members and the duties they will perform; to provide for the adoption, amendment and repeal of rules, regulations, determinations, job classification plans, pay plans, and mandatory and/or permissive retirement plans to effectuate the purpose of this act; to provide for the employment of persons with and without competitive examination; to provide for temporary appointments and the manner in which and the extent to which they shall be made permanent; to provide for the establishment of lists of persons eligible for employment and to establish the manner in which such lists shall be used; to establish a period of probation for certain city employees; to provide for rules governing working hours and leaves of absence; to provide for the laying off of employees; to establish the manner in which employees may be disciplined and to provide a procedure under which certain employees may protest such disciplinary action; to give the Personnel Board the authority to require the attendance of witnesses and the production of documents at such proceedings and to establish penalties for failure to attend or produce records as required; to provide for an appeal from decisions of such board in such protests; to require such Board to maintain certain records; to prohibit and fix the punishment for certain political activity by certain employees of the city; to provide for the expenses of such Board; to guarantee certain rights to the governing body of the city.
Be It Enacted by the Legislature of Alabama:
Section 1. Definitions. The following words, terms, and phrases, wherever used herein, shall have the meanings respectively ascribed to them in this section, and shall include the singular as well as the plural:
Allocation means the assignment of positions to a class on the basis of the nature, difficulty and responsibility of work of the positions.
Appointing authority means the official board designated by resolution of the governing body as being the official or board having authority to fill vacancies in a specified class, or the governing body itself in the event that the governing body has made no such designation in respect to a class, or having made such designation, has thereafter repealed such resolution.
Board means the Personnel Board of the City of Cullman.
Certify, Certification means the act of supplying the appointing authority with names of applicants deemed eligible for appointment to the class or position to be filled.
City means the City of Cullman.
Class means a position or group of positions that involve similar duties and responsibilities and require similar qualifications and *677 are designated by a single title indicative of the work to be performed.
Court means the Circuit Court of Cullman County, Alabama.
Eligible list means a list of names of persons who have successfully competed by examination written or oral, arranged in the order of their final ratings, as determined by the Personnel Board.
Employee means a person regularly occupying a position in the classified service or a person who is on authorized leave of absence and whose position is being held for him pending his return.
Demotion means removal of an employee from a position in one class to a position in another class having a lower maximum salary limit than the position from which he was removed.
Governing body means the Mayor and City Council of the city or any governing authority which is a successor thereto.
Merit system whenever the term "Merit System" appears, it shall mean the same as "Civil Service System"; within the meaning of this act.
Original appointment means the appointment to a position in the classified service of a person who is not being reemployed from the reemployment list, nor being promoted from the promotional eligible list and who, except for those in the exempt service and those serving under temporary appointment, is not an employee of the city.
Original appointment eligible list means the eligible list of persons qualified for original appointment to a position.
Laid-off means separated from the classified service of the city because of lack of work or funds or other reason not related to fault, delinquency or misconduct on the part of the employee.
Position means a group of current duties and responsibilities assigned or delegated by competent authority and requiring the full or part time services of one employee.
Promotion means a change of employment from a position of one class to a position of another class which has a higher maximum salary rate.
Promotional eligible list means the eligible list of persons qualified for promotion to a position.
Reemployment list means:
(a) the list of names of former employees who have been laidoff from a position within the past two (2) years who had permanent status in that position so long as that position continued in the classified service, arranged in the inverse order in which they were laid-off.
*678 (b) the list of names of those former employees who resigned or otherwise left the city service in good standing at any time within the past two (2) years.
Vacancy means a position duly created with funds provided for payment of a salary, which is not occupied, or which is occupied by a person serving under a temporary appointment.
Section 2. Division Into Exempt and Classified Services.
All offices and positions of the city shall be divided into the exempt service and the classified service.
1. The exempt service shall include:
(a) the positions of all elected officials of the city, (b) the positions of voluntary personnel and personnel appointed to serve without pay; (c) the positions of consultants rendering temporary professional service; (d) all positions involving seasonal or parttime employment; (e) such positions as the board shall determine to involve unskilled or semi-skilled work; (f) positions of departmental supervisors; (g) the positions of attorneys rendering legal service; provided, however, such positions in the exempt service held by employees of boards and commissions may be placed in the classified service by resolution of the governing body, after favorable recommendation by such other board or commission, and the governing body in such resolution shall prescribe the conditions under which the employees holding such positions so transferred may acquire permanent status in such positions so long as such positions remain in the classified service.
2. Classified Service:
The classified service shall include all positions in the city service that are paid out of the general fund of the city and out of funds of boards and commissions whose employees are placed in the classified service, and which are not specifically placed in the exempt service; provided, however, the governing body may by resolution, pursuant to a recommendation by the boards, remove any position from the classified service and place it in the exempt service. Unless otherwise specifically provided or clearly implied, the provisions of this act shall apply only to the classified service.
Section 3. Status of Present Employees. All employees who have acquired permanent status shall, subject to the provisions of this Act, have permanent status in their present positions so long as such positions remain in the classified service. All other employees shall be eligible to acquire permanent status in their present positions so long as such positions remain in the classified service in the manner provided in Section 14, upon completing six months' service in such positions, such time to be computed from the beginning of such service, rather than from the effective date of this Act.
Section 4. Organization of Board. The personnel program established by this Act shall be administered by the board. The board *679 shall consist of three (3) members who are residents of the city and who shall be appointed by the governing body. No member of the board shall be employed by or be an official of the city, nor hold any elective public office. The composition of the board shall be designated as Place No. 1, Place No. 2, and Place No. 3. The person appointed as a member of the board in Place No. 1 shall serve a term of two (2) years; the person so appointed for Place No. 2 shall serve a term of four (4) years; the person so appointed for Place No. 3 shall serve a term of six (6) years. Thereafter each term shall be for a period of six (6) years. Vacancies occurring during a term shall be filled for the balance of the term by the governing body. Members of the board shall serve without compensation, but funds shall be provided from the general fund of the city for their reasonable and necessary expenses. The board shall elect from its own members a chairman, a vice chairman and a secretary-treasurer. The board shall meet as often as necessary to carry out the purpose of this Act, but shall meet at least once each quarter, however, the governing body shall have the right to control the appropriations to the board and to regulate the expenses of the board as it deems necessary. A majority of the members of the board shall be necessary to constitute a quorum for the transaction of business and no action shall be taken without the affirmative vote of a majority of the quorum present at a meeting. The board, with the approval of the governing body shall have the right to engage such full or part-time personnel as shall be necessary to carry out the provisions of this Act.
Section 5. General Duties of Board. In addition to the duties set forth elsewhere in this Act, the board shall (a) advise the governing body on matters of personnel administration, including the development of personnel rules, a job classification plan, and a systematic pay plan (b) represent the public interest in the improvement of personnel administration in the city service; (c) make any inquiry which it may consider desirable concerning personnel administration in the city service; and (d) make recommendations to the governing body with respect to any of the foregoing duties.
Section 6. Rules, Classification Plans, and Pay Plans. So long as the same are not inconsistent with this Act, the board shall have the power to recommend to the governing body the adoption of rules and regulations for the operation of the civil service system established hereby, including, but not limited to a job classification plan, a pay plan, and a plan for the mandatory and/or permissive retirement of employees. Within sixty (60) days after the presentation of a recommendation of the board, the governing body shall act upon the same, and if the governing body by resolution adopts the recommendation of the board, the same shall become operative and have the force and effect of law. All rules, regulations and pay and classification plans in effect at the time of the adoption of this Act which are not in conflict with the provisions *680 hereof shall remain in force and effect after the effective date of this Act until the same are altered, amended or repealed in the manner hereinafter provided.
Section 7. Amendments and Repeal. Any rule, determination, regulation or plan may be amended or repealed in whole or in part in the same manner as is provided herein for the making of such rules, determinations, regulations or plans.
Section 8. Job Classification Plan. After the adoption by the governing body of a job classification plan, allocation of each position in the classified service shall be made by the board with the approval of the governing body to the end that all positions in the same class shall be sufficiently alike to permit use of a single descriptive title, the same qualification requirements, the same test of competence, and the same pay scale.
Section 9. Pay Plan. After the adoption by the governing body of a pay plan and any rules of its administration, the board, with the approval of the governing body, will assign each position to one of the pay ranges provided in the pay plan to the end that the rate or range of compensation for each class provided for in the pay plan shall be such as to reflect fairly the differences in duties and responsibilities in the various classes.
Section 10. Examinations. Eligibility for original appointment or promotion to vacancies in positions in the classified service occurring after the adoption of this Act shall be determined by the Personnel Board. The Personnel Board shall conduct such examinations as will fairly test the abilities and aptitudes of the applicants with respect to the duties to be performed. Applicants who pass the test and otherwise qualify for original appointment or promotion, as the case may be, shall be placed on the appropriate eligible list for the vacancy. The board may refuse to examine, or after examination refuse to certify the name of anyone who is found to lack any of the established qualification requirements for the position for which he applies or who is physically so disabled as to be unfit to perform duties of the position to which he seeks appointment, or who has been convicted of or is under indictment for any crime involving moral turpitude or who has been guilty of any infamous or disgraceful conduct or who has been dismissed from the public service for delinquency or misconduct or who has intentionally made a false statement of any material fact or practiced or attempted to practice any deception or fraud in his application, or in his examination.
Section 11. Temporary Appointment. Pending the availability of a list of names certified as provided in Section 13 hereof, positions may be filled by temporary appointment. The governing body by resolution adopted pursuant to a recommendation of the board may grant permanent status in a position in the classified service so long as such position remains in the classified service, to any employee who has served in a vacancy in a position then in the *681 classified service by temporary appointment for at least twelve (12) months and who has passed his examination, if at the time of such action by the governing body no such list of names has been so certified for the vacancy in which the said employee is serving.
Section 12. Lists of Names of Persons Available for Appointment. Lists of names of persons available for appointment to a vacancy in a position in the classified service will be selected for certification as provided in Section 13 hereof in the order in which they appear from among the laid-off persons on the reemployment list, promotional eligible list, original appointment eligible list, and reemployment list composed of former employees for said vacancy, which lists shall have priority one over the other in the order named. A former employee with probationary status with respect to the vacancy may, with the approval of the appointing authority, have his name placed at such position on the promotional eligible list as the appointing authority may designate. Policies and procedures for administering eligible lists and covering the duration, cancellation, replacement, and consolidation of such lists, and the removal or suspension of names therefrom shall be provided in the personnel rules.
Section 13. Method of Filling Vacancies. Except as hereinafter provided, vacancies in positions in the classified service shall be filled by the appointing authority by the appointment of a person whose name is certified, within thirty (30) days after certification. Certification shall be made upon request of the appointing authority therefor whenever a vacancy exists, the appointing authority, in his discretion, determines that such vacancy shall be filled, and the name of an applicant for such vacancy is eligible for certification. If there is a laid-off person on the reemployment list with respect to a vacancy, only the top name on such list shall be eligible for certification. In the event the top person is not available for appointment, the next ranking names may be certified until the highest ranking person who is available is appointed. In the event there is no such reemployment list, and the names on the promotional eligible list for such vacancy plus the names on the original appointment eligible list for such vacancy equal three (3) or more, the three (3) names ranked highest on the said promotional eligible list shall be eligible for certification; provided, however, should the said promotional eligible list not contain three (3) names, then the names appearing thereon, plus such of the names ranked highest on the said original appointment eligible list as will be sufficient to bring the number of certified to three (3) shall be eligible for certification. If after making a reasonable effort it should prove impossible for the appointing authority to locate any of the persons so certified or should it become known to the board that any person so certified is not willing to accept the position, the appointing authority may request that additional names be certified until the appointing authority has available to him a list from which to *682 make the appointment containing the aforesaid authorized number of persons all of whom are available for such appointment and willing to accept the position, or, in the event that the list certified to the appointing authority contains fewer than the authorized number of available and willing persons as aforesaid from which to make a selection, the appointing authority, in his discretion, may choose from the remaining certified names, make a temporary appointment, or make no appointment. In the event that there does not exist an employment list which the board deems to be appropriate from which to fill the vacancy, the board shall prepare such a list within a reasonable time after receipt of the request of the appointing authority that eligibility be certified. Provided, however, nothing herein contained shall be construed as preventing an appointing authority, in his discretion, from withdrawing his request for the aforesaid certification, either before or after such certification has been made in response to his request therefor. Whenever a person has been certified to and rejected by an appointing authority three (3) times, the board may remove the name of such person from the eligible list on which his name appeared. A person shall be deemed to have been so rejected by an appointing authority when a vacancy is filled from an eligible list on which his name appeared and such person was not selected to fill the vacancy.
Section 14. Probation. Except as provided in Sections 2 and 3, to acquire permanent status in a position in the classified service so long as such position remains in the classified service, employees shall be subject to a period of probation. The regular period of probation shall be six (6) months; provided, however, the board may adopt rules and regulations specifying a longer period of probation for a designated class or classes, or for extension of the probation period for any individual probationary employee, but no probationary period may extend beyond twelve (12) months. The work and conduct of employees with a probationary status shall be subject to close scrutiny and evaluation. An employee retained beyond the end of the probationary period shall have permanent status in the position in which he was so retained so long as that position remains in the classified service if, but only if, the appointing authority files a written statement with the board affirming the fact that the services of the employee have been found to be satisfactory.
Section 15. Absences: Hours of Work. Rules shall be adopted in the manner hereinbefore provided prescribing hours of work and the conditions and length of time for which leaves of absence with pay and leaves of absence without pay may be granted. These shall cover such matters as vacations, holidays, sick leaves, leaves for military service, and leaves granted so that the employee can seek election to public office.
Section 16. Lay-Off of Employees. Any employee may be separated from his position by being laid-off. Reduction in the number *683 of employees shall be made in such class or classes as the appointing authority may designate; provided, however, within each class affected by such reduction employees shall be laid off in the following order: (1) temporary employees who did not have permanent status in some other position in the classified service at the time they were appointed to their present position; (2) probationary employees who did not have permanent status in some other position in the classified service at the time they were appointed to their present position; (3) other temporary employees; (4) other probationary employees; and (5) employees having permanent status in the position in the classified service.
Section 17. Dismissal, Demotion and Suspension of Employees. Any employee may be dismissed, suspended without pay or demoted by his appointing authority for, but not limited to, any violation of the provisions of this Act or whenever the good of the service will be served thereby or the employee's work, performance, conduct on or off the job, or insubordinate attitude so warrants; provided, however, that no employee may be suspended without pay for more than fifteen (15) working days at any one time or for more than thirty (30) working days in any one year; and provided further, that no employee shall be dismissed, suspended without pay or demoted for political considerations other than those enumerated in Section 21 hereof. Any person appointed to a position who has secured his certification therefor through fraud shall be removed by his appointing authority and shall not thereafter be eligible for examination for or appointment to any position except by unanimous permission of the board. The appointing authority shall promptly report to the board in writing the fact and extent of all disciplinary action taken by said appointing authority against employees holding positions in the classified service.
Section 18. Procedure for Protesting Certain Disciplinary Action. An employee shall have the right to protest any disciplinary action taken against him by his appointing authority; provided, however, an employee serving by temporary appointment and an employee having probationary status shall have no right to protest any such disciplinary action, unless such employee had permanent status in some other position at the time he was appointed to his present position. An employee desiring to protest any disciplinary action directed against him by his appointing authority shall file a protest in writing with the board and with his appointing authority within seven (7) days of the date on which the disciplinary action was taken and request a hearing before the board. Within seven (7) days after receipt of the protest, his appointing authority shall file with the chairman of the board and mail to the employee by certified mail a statement specifying the charges against such employee on which the disciplinary action was based. Upon the filing of such charges, the said chairman shall call a meeting of the board to be held within thirty (30) days after the filing of such charges to hear such protest, and shall forthwith *684 give notice by certified mail to the employee and his appointing authority of the time and place of such meeting. The board shall have the authority to continue the hearing from time to time as may be necessary. In preparing for and conducting such hearing, the chairman and secretary-treasurer of the board shall each have the power to administer oaths, and to subpoena and require the attendance of witnesses and the production of books, documents and accounts pertaining to the subject under investigation.
Subpoenas issued as herein provided shall be served (and the fees and allowances for the service thereof shall be the same) as is provided by law for the service of subpoena issued by the Circuit Court of Cullman County, Alabama. Said fees and allowances in connection with the service of such subpoena issued at the request of the appointing authority or the board shall constitute reasonable and necessary expenses of the board. Such subpoena issued at the request of the employee shall be served as aforesaid but only after such employee has deposited sufficient security with such sheriff or other officer as will guarantee payment of such fees and allowances for such service. In the event any person is duly summoned to appear and testify or produce evidence, or both, before the board, and such person refuses to attend or testify or produce such evidence, or any of them, in obedience to such summons, the board shall have the right to invoke the aid of the Circuit Court at law. In such event, and upon proper showing by the board to the court, the court shall issue, or cause to be issued, an order or subpoena requiring such person to appear before the board and produce all evidence and give all testimony relating to the issue within his knowledge. Any person failing to obey any such summons by either of said officers of the board without good cause, to be determined by the court, may be punished by the court in the same method as is provided by law for contempt of the court and any person failing to obey and such order or subpoena of the court, may be proceeded against by the court as is by law provided in the case of contempt of such court. In addition, any employee of the city who fails to obey any of such orders or subpoenas may be disciplined as provided in Section 17.
At the hearing the employee and his appointing authority shall each have the right to be represented by counsel. Such hearing shall be governed by rules of practice and procedure adopted by the board, and in conducting such hearing, the board shall not procedure in the conduct of such hearing shall invalidate any decision made by the board. At the conclusion of the hearing, the board shall render a decision (a) affirming the disciplinary action taken if it is reasonably satisfied from the evidence offered at the hearing that the disciplinary action taken was lawful or was be bound by the technical rules of evidence. No informality of not too severe; or (b) reversing the action of the appointing authority if it is reasonably satisfied from such evidence that the disciplinary action taken was not lawful; or (c) modifying the disciplinary action taken and prescribing the proper penalty if *685 it is reasonably satisfied from such evidence that the employee was subject to some disciplinary action, but that the penalty imposed was too severe. If the board's decision reduces the severity of the disciplinary action taken against the employee, the board, in its decision, may provide that the employee shall be reinstated with or without pay; provided, however, in the event any employee is so ordered to be reinstated with pay, such pay shall not exceed the amount that the employee as such earned during the thirty (30) days next preceding the taking of the disciplinary action in question. A copy of the board's decision shall be filed with the city clerk of the city and such decision shall become effective immediately upon such filing, and it shall become final ten (10) days thereafter unless reversed or modified as hereinafter provided. The Personnel Board shall be represented by the City Attorney, or an attorney designated by the governing body of the city, and said attorney shall perform such duties as the board may direct and require. Any compensation paid said attorney shall be paid as in Section 22 hereof.
Section 19. Appeal to the Court. Decisions of the board may be enforced in the court by mandamus, injunction, or other appropriate proceedings. The employee, the appointing authority, or the city may, within ten (10) days after the decision of the board is rendered, appeal to said court from any decisions of the board affirming, imposing or refusing to affirm or impose dismissal or demotion as disciplinary action by filing notice of such appeal with the court and causing a copy of such notice to be served on the appointing authority and any member of the board. Upon the filing of such notice, the board shall file with the court a certified transcript of the proceeding had before it with respect to the appeal, and its decision in the matter. The appeal shall be heard at the earliest possible date by said court sitting without a jury on the issues made before the board and the trial in said court shall be de novo. No bond shall be required for such an appeal and the cost of such appeal shall be taxed against the unsuccessful party or as the judge may direct. At the conclusion of such hearing the court may affirm, reverse, or modify the board's decision, or remand the case for further proceedings before the board as the court in its discretion shall deem best. If the order of the court is that the employee shall be reinstated with pay, such pay shall not exceed the amount that the employee as such earned during the thirty (30) days next preceding the taking of the disciplinary action in question. An appeal may be taken from any judgment of said court to the Court of Appeals or Supreme Court as provided by law.
Section 20. Records to be Maintained by Board. The board shall maintain adequate records of its proceedings, of its own official acts, the examination record of every candidate, and the employment record of every employee.
*686 Section 21. Political Activities Prohibited. No person holding a position in the classified service shall seek or attempt to use any political endorsement in connection with any appointment to a position in the classified service. No person holding a position in the classified service shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person or for any consideration. No employee holding a position in the classified service shall, directly or indirectly, pay or promise to pay any assessment, subscription, or contribution for any political organization or purpose, or solicit or take any part in soliciting any such assessment, subscription, or contribution. No person shall solicit any such assessment, subscription, or contribution of any employee holding a position in the classified service. No employee holding a position in the classified service shall be a candidate for nomination or election to any public office, or shall take any part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote, unless on authorized leave of absence for such purpose. Any person holding a position in the classified service who violates any provision of this section may be disciplined by dismissal, suspension without pay, or demotion as provided in Section 17 of this Act. In addition, any person holding a position in the classified service who wilfully violates any provision of this section shall be guilty of a misdemeanor and upon conviction shall be punished as provided by Section 327 of Title 15 of the Code of Alabama of 1940.
Section 22. Expenses of Board. The governing body shall make necessary appropriations from the general fund to pay the reasonable and necessary expenses incurred by the board and its members in the administration of this Act.
Section 23. Right of Governing Body. Nothing herein shall be construed as restricting the right of the governing body (1) to refuse employment and prohibit the further service of any person who are members of an organization which is opposed to the basic purpose of local self government; or (2) to increase or decrease proportionately the compensation of all employees; or (3) to use independent contractors for performance of work or the rendering of service by the city.
Section 24. Severability. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
*687 Section 25. Repealer. All laws or parts of laws which conflict with this Act are repealed.
Section 26. Effective Date. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
Approved October 1, 1971.
Time: 11:25 A.M.
[1] Briefs were carefully considered, as were taped oral arguments. Originally this case was assigned to another Justice, since retired, and reassigned to the author.
[2] The enactment of an Administrative Procedures Act by the legislature would go far toward solution of many of the problems presented by cases such as this. See 25 Alabama Lawyer 375 (1965). There exists a revised model state act proposed by the ABA and National Conference of Commissioners on Uniform State Laws. Some forty-one states have adopted some form of Administrative Procedures Act, borrowing heavily from the model uniform act. | May 22, 1975 |
9a9db7b0-b111-4667-b337-61938e9bb155 | Steward v. State | 314 So. 2d 317 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 317 (1975)
In re James Curtis STEWARD
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1191.
Supreme Court of Alabama.
May 22, 1975.
Rehearing Denied June 19, 1975.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, petitioner.
None for respondent.
JONES, Justice.
James Curtis Steward was convicted of the offense of manslaughter in the second degree by the Circuit Court of Perry County and he appealed. The Court of Criminal Appeals reversed and remanded and denied the State's application for rehearing; whereupon the State filed in this Court a petition for writ of certiorari to the Court of Criminal Appeals, 55 Ala.App. 238, 314 So. 2d 313.
By denial of this writ we are not to be understood as approving or disapproving all of the language in the opinion of the Court of Criminal Appeals.
Writ denied.
HEFLIN, C.J., and MERRILL, MADDOX and SHORES, JJ., concur. | May 22, 1975 |
2601fb2e-ed8f-45e8-a2de-da94897cd9a6 | Alabama Power Company v. Mosley | 318 So. 2d 260 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 260 (1975)
ALABAMA POWER COMPANY, a corporation
v.
John Lesley MOSLEY et al.
SC 831.
Supreme Court of Alabama.
July 31, 1975.
*261 Balch, Bingham, Baker, Hawthorne, Williams & Ward and James O. Spencer, Jr., Birmingham, and Inge, Twitty, Duffy & Prince, Mobile, for appellants.
M. A. Marsal and Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee, John Lesley Mosley.
*262 MERRILL, Justice.
This is an appeal by the defendant, Alabama Power Company, from a judgment for $40,000.00 in favor of plaintiff, John Lesley Mosley, and plaintiff-intervenor, Fireman's Fund American Insurance Companies. The cause was submitted to the jury on four counts which alleged negligence on the part of Alabama Power in allowing high voltage uninsulated wires to remain near a billboard proximately causing Mosley's injuries.
Plaintiff was employed by Lamar Advertising Company and was working as an outside sign painter. On June 12, 1969, he was painting a 12' x 50' billboard on Highway 90 west of Mobile. Mosley had just started to paint at the top, left-hand corner of the signboard when the rear end of the 12-foot, aluminum handle extension in his paint roller either touched a 7,200 volt line or got so near the line that the electricity arced from the line to the handle. Mosley fell approximately 20 feet and received injuries to the head, chest and abdomen, plus burns on one hand and one foot.
Defendant's assignment of error No. 1 is that "the Court erred in improperly refusing to grant a new trial." It argues four grounds of its motion for new trial in support of this assignment.
Defendant contends that the trial court committed reversible error in giving plaintiff's requested charge # 15:
Mr. Charles H. Senior, Mobile District Superintendent for Alabama Power, testified in his deposition that there were six conductors or groups of conductors (including telephone lines) running perpendicular to the signboard; that there were six conductors or groups of conductors (including telephone lines) running parallel to the signboard; that the closest power line in the parallel plane was 9' 5" away from the face of the signboard; that these wires had no cover or wrapping on them; that there were no warning signs on the high voltage lines at the place of the accident in question.
Plaintiff, John Lesley Mosley, on crossexamination by counsel for defendant, testified as follows:
"Q * * *
Defendant insists that plaintiff's requested charge # 15 imposes an almost impossible burden of proof, namely, that it must be shown that plaintiff had attempted willful self-injury before he could be found guilty of contributory negligence. We disagree.
Charge # 15 is almost identical to the charge found in Alabama Pattern Jury Instructions, Civil, 30.05, page 489, under the heading "Assumption of RiskElements." There, it is said that the instruction may be used for contributory negligence under certain conditions. It is not necessary to delineate those conditions here.
It has been said a number of times that the three elements essential to contributory negligence are that the party charged with contributory negligence (1) had knowledge of the condition or failure (2) appreciated the danger and (3) failed to exercise reasonable care in the premises, but with such knowledge and appreciation, put himself into the way of danger. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So. 2d 847; Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So. 2d 371; F. W. Woolworth Company v. Bradbury, 273 Ala. 392, 140 So. 2d 824; Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So. 2d 825; Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276.
Some of the cases cited supra involved assumption of risk. In others, there was a special duty of care imposed upon the owner of the premises. However, it has long been recognized that contributory negligence may also be predicated upon the failure to appreciate the danger when there is a reasonable opportunity to do so under the circumstances. Baptist Medical Center v. Byars, supra; F. W. Woolworth Co. v. Bradbury, supra; Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., supra; Walker County v. Davis, 221 Ala. 195, 128 So. 144; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979.
In Walker County, supra, this court said:
Moreover, in Dwight Mfg. Co. v. Word, supra, it was said:
The elements of contributory negligence knowledge, appreciation of the danger, and failure to exercise reasonable care,as contained in the questioned charge, may not *264 be a complete statement of the law in every instance. In such an event, explanatory charges can supply any deficiency, and any deficiency in plaintiff's requested charge # 15 was remedied by the giving of defendant's requested charge # 25, which is as follows:
The emphasized clause supplied any deficiency under the facts of the instant case.
Defendant also contends that the trial court erred in giving plaintiff's requested charge # 1(a):
This charge was apparently given for the purpose of clarifying the following additional testimony of Mr. Senior:
A Yes, sir.
Q Well, what was it insulated with?
This court quoted the following with approval in Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854, and Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228:
*265 Plaintiff's requested charge # 1(a) may have been misleading in that it might have been understood to imply that Alabama Power breached its duty to exercise due care. Any deficiency, however, in the plaintiff's requested charge was remedied by the giving of defendant's requested charge # 6, which reads:
Defendant next insists that the trial court erred in refusing to give defendant's requested charge # 21:
Though we do not say whether or not this charge was in every respect a correct statement of the law in this case, we are convinced that it was refused without error, because the same rule of law was substantially covered in defendant's given requested charge # 34:
One of the argued grounds of the motion for a new trial is that the verdict was excessive. Mosley was 28 years old at the time of the accident. The evidence presented at trial showed that plaintiff received second and third degree burns to one hand and one foot; that a skin graft was applied over the burned area on the left foot; that he had some broken ribs and a contused lung; that it became necessary to remove plaintiff's spleen; and that he was unconscious for three days as a result of a head injury. Dr. Green, Plastic and Reconstructive Surgeon, gave plaintiff a 25% total permanent disability of the foot, and Dr. Robert Mudd, a neuro surgeon, gave him a 10% permanent partial disability to his body as a whole. The plaintiff was hospitalized twice for a total of 38 days and incurred $4,001.45 in medical expenses. Mosley did not return to work for almost six months and lost approximately $20.00 per week in wages not covered by Workmen's Compensation.
Whether damages awarded for personal injuries are excessive depends on the facts of the particular case. Williams v. *266 Williams, 283 Ala. 292, 216 So. 2d 181; Durham v. Sims, 279 Ala. 516, 187 So. 2d 558.
There is no fixed standard for ascertainment of compensatory damages recoverable here for physical pain and mental suffering, but the amount of such award is left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion. Durham v. Sims, supra; W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So. 2d 375.
The presumption in favor of the correctness of a jury's verdict alleged to be excessive is strengthened when the trial judge, as here, overrules a motion for new trial. Durham v. Sims, supra; W. S. Fowler Rental Equipment Co. v. Skipper, supra.
We do not find in the verdict any abuse or passionate exercise of discretion or other improper motive.
Assignment of error No. 2 charges that the court erred in refusing to grant defendant's motion for a judgment notwithstanding the verdict.
This court has long been committed to the proposition that the plaintiff's appreciation of the danger is almost always a question of fact for the determination of the jury. Bradbury, 273 Ala. 392, 140 So. 2d 824; Ralston, 285 Ala. 600, 235 So. 2d 371. A jury question was presented in the instant case.
We have also held that whether a plaintiff was guilty of contributory negligence is ordinarily a question of fact for the jury to decide under proper instructions. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. Foster & Creighton Co. v. St. Paul Mercury Ind. Co., 264 Ala. 581, 88 So. 2d 825.
A question for the jury was presented and the court correctly overruled the motion for a new trial; and the motion for judgment notwithstanding the verdict was also properly overruled.
The remaining argued assignments of error are concerned with the refusal of the court to give some 5 written requested charges for the defendant and the giving of some 8 written charges requested by the plaintiff. In support of each of these assignments, the following statement is made in brief:
We have held that it is permissible to adopt by reference the argument used in support of one assignment of error, in support of another; but the adopted argument must be pertinent to and supportive of the assignment of error for which it is adopted. Sealy v. McElroy, 288 Ala. 93, 257 So. 2d 340.
It is not necessary to quote these charges. We are convinced that the refusal to give them did not constitute reversible error because they were covered by the oral charge, or, as to the 5 charges, by one of the 22 given written charges requested by the defendant.
ARCP No. 51 provides in part: "The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in charges given at the request of the parties." This applies to most of the 5 charges in question.
Under the facts of this case, we find no reversible error in the giving of the 8 written charges requested by the plaintiff. The adopted argument under defendant's *267 assignment of error No. 1 was not pertinent to all of them.
Affirmed.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | July 31, 1975 |
13067f62-b67b-4dd4-beda-ba85874591e8 | Wright v. State | 312 So. 2d 421 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 421 (1975)
In re Charles Cantrell WRIGHT
v.
STATE of Alabama.
Ex parte Charles Cantrell Wright.
SC 1233.
Supreme Court of Alabama.
May 1, 1975.
Rehearing Denied May 22, 1975.
John L. Cole, Birmingham, for petitioner.
None for the State.
EMBRY, Justice.
Writ denied. Although we deny the writ we feel constrained to comment that the better practice would be for the trial judge to exclude the jury when making inquiry of a witness concerning whether the witness was under indictment or not, as was done in the instant case. Neither should we be understood as approving language of the opinion of the Court of Criminal Appeals in this case, in its entirety. See In re Clara Lowery, alias v. State, Ex parte State of Alabama ex rel. Attorney General, 291 Ala. 787, 286 So. 2d 67.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | May 1, 1975 |
936eb251-bb30-4be0-836c-511decfb4e84 | Simonetti v. City of Birmingham | 314 So. 2d 99 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 99 (1975)
In re Joe SIMONETTI
v.
CITY OF BIRMINGHAM.
Ex parte CITY OF BIRMINGHAM.
SC 1229.
Supreme Court of Alabama.
May 29, 1975.
*100 William C. Walker, Birmingham, for petitioner.
None opposed.
BLOODWORTH, Justice.
Petition of City of Birmingham for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Simonetti v. City of Birmingham, 55 Ala.App. 163, 314 So. 2d 83 [1975].
The judgment of the Court of Criminal Appeals reversed Simonetti's conviction, in the Circuit Court of Jefferson County, for violation of the city's "Blue Law" or "Sunday Closing Law."
We think the petition should be denied. We point out, as we have heretofore done in numerous cases, that petitions for writs of certiorari are frequently denied without any consideration of the merits and that denial of certiorari should never be considered as an expression by this Court on the merits of the controversy. See Lowery v. State (Ex parte State of Alabama, etc.), 291 Ala. 787, 286 So. 2d 67 (1973); Horsley v. Horsley (Ex parte Horsley), 291 Ala. 782, 280 So. 2d 155 (1973).
Although we are not thus bound to express ourselves on the merits of this controversy, we may add that we think the judgment of reversal could be sustained because, from the recital of facts in the opinion, the proof is insufficient to show that Simonetti had "more than four employees on duty at any one time on Sunday" on the instant occasion.
We neither approve nor disapprove the language used, the statements of law contained, nor the other conclusions reached, in the balance of the opinion.
Writ denied.
HEFLIN, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | May 29, 1975 |
f0b1e1e4-7b38-40da-96a6-bdfc886d053e | St. John v. State | 313 So. 2d 218 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 218 (1975)
In re Robert M. ST. JOHN
v.
STATE.
Ex parte Robert M. St. John.
SC 1265.
Supreme Court of Alabama.
May 22, 1975.
George A. Moore, Huntsville, for petitioner.
No appearance for respondent, the State.
ALMON, Justice.
Petition of Robert M. St. John for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in St. John v. State, 55 Ala.App. 95, 313 So. 2d 215.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. | May 22, 1975 |
d26878af-f126-4277-a954-1e771aaf9b3c | Edwards v. State | 317 So. 2d 512 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 512 (1975)
In re Robert P. EDWARDS, alias
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1048.
Supreme Court of Alabama.
May 22, 1975.
Rehearing Denied June 19, 1975.
William J. Baxley, Atty. Gen., and John M. Gruenewald, Asst. Atty. Gen., for petitioner.
Jack Floyd, Gadsden, for respondent.
MADDOX, Justice.
Robert P. Edwards was indicted for a felony. He was 20 years old. At arraignment, he asked to be tried as a youthful offender. The court overruled his request without conducting an investigation or examination of Edwards. The Court of Criminal Appeals remanded the cause to the trial court on the authority of Morgan v. State, 291 Ala. 764, 287 So. 2d 914 (1973), with instructions to the court "to investigate and examine the appellant at a hearing and determine whether in its discretion appellant should be tried as a youthful offender." 55 Ala.App. 544, 317 So. 2d 511.[1] We granted certiorari. We affirm.
The trial court should have conducted some investigation or examination. Even though the court is not now required to refer *513 the matter to a probation officer, it may. Ex parte State of Alabama, ex rel. Attorney General (In re: Clemmons v. State of Alabama), 294 Ala. ___, 321 So. 2d 238, decided May 22, 1975, which modified this Court's holding in Morgan v. State that referral to a probation officer was mandatory.
Affirmed.
HEFLIN, C.J., MERRILL, BLOODWORTH, JONES, SHORES and EMBRY, JJ., and COLQUITT, Circuit Judge, sitting specially, concur.
FAULKNER, J., dissents.
ALMON, J., not sitting.
[1] A checklist for use by the trial court in informing "youthful offenders" of their rights under the Act are set out in Ex parte Raines (In re; Raines v. State), 294 Ala. 360, 317 So. 2d 559, decided May 22, 1975. | May 22, 1975 |
9eb36078-5302-4cb7-920b-c4660ff6dd4f | Barker v. State | 315 So. 2d 130 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 130 (1975)
In re Bobby Gene BARKER
v.
STATE.
Ex parte Bobby Gene Barker.
SC 1328.
Supreme Court of Alabama.
June 26, 1975.
Fred Blanton and William A. Robinson, Birmingham, for petitioner.
No appearance for respondent.
*131 BLOODWORTH, Justice.
Petition of Bobby Gene Barker for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Barker v. State, 55 Ala.App. 332, 315 So. 2d 129.
Writ denied.
HEFLIN, C. J., and MADDOX, ALMON and SHORES, JJ. concur. | June 26, 1975 |
c22f7b84-8aa9-470f-82a7-5092a342a0d2 | Hargrave v. Davis-Hunt Cotton Company | 321 So. 2d 178 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 178 (1975)
Gene HARGRAVE
v.
DAVIS-HUNT COTTON COMPANY, a corp.
SC 1314.
Supreme Court of Alabama.
September 25, 1975.
Patton, Latham & Legge, Athens, for appellant.
William E. Shinn, Jr., Decatur, for appellee.
PER CURIAM.
This appeal involves a "cotton output" contract between the Davis-Hunt Cotton Company, Inc. (appellee) and Gene Hargrave (appellant) wherein Davis-Hunt claims $52,810.50 damages for breach of contract.
Under the contract, Hargrave agreed to sell Davis-Hunt all of the cotton he produced during 1973, and ginned before December 16, 1973, at a price of 30 cents per pound. Hargrave produced a total of 721 bales of cotton during the 1973 season, of which 212 bales, weighing 105,621 pounds, were not delivered to Davis-Hunt.
The jury returned a verdict in favor of Davis-Hunt in the amount of $9,000 and the trial court, on Davis-Hunt's motion, granted a new trial. The principal thrust of Davis-Hunt's motion, which contained 23 numbered grounds, was that the verdict was contrary to the evidence or contrary to the weight of the evidence.
*179 The order of the trial court granting the motion states in pertinent part:
The issue presented by this appeal is whether the trial court committed reversible error in granting Davis-Hunt's motion for new trial upon the grounds stated or upon any other good grounds.
We hold that the trial court was not in error and, accordingly, we affirm its decision.
Briefly summarized, the facts are as follows: The duration of the contract was from April, 1973, to December 15, 1973. During this period the price of cotton rose dramatically from 32 cents per pound to more than 80 cents per pound. It appears that under the normal trade practice, cotton is taken to be ginned as soon as it is picked, which usually takes a day or two at the most. Thus, the evidence introduced by both sides centered along the lines of whether Hargrave had valid excuses for failing to get his cotton ginned before the December 15 deadline or whether he purposefully delayed such ginning in order to render the cotton unacceptable to the contract, thereby freeing it for sale to other cotton brokers at a higher price.
In 1973, Hargrave farmed the Hill place and the McCrary place, the arrangement being that he would pay the owner of each farm 1/3 of the cotton he produced during that year. The record of the local ginning facility indicated that the cotton from the Hill place, which was delivered to Davis-Hunt by Hargrave pursuant to the contract, was ginned on November 18, 1973. The cotton given to McCrary for his share was last ginned on November 24, while the cotton registered in Hargrave's name, produced on the McCrary place, was ginned as follows: on December 1, three bales; on December 8, twelve bales; on December 12, nine bales; and on December 28, December 29, January 3, and January 4, two-hundred-twelve bales.
During 1973, Hargrave decided he would alter his usual procedure by using a module maker instead of loading the picked cotton into trailers for transport to the cotton gin. Under the new procedure, cotton was picked, compacted into large bales of seed cotton, and placed on pallets, located at the ends of the rows. Each pallet was capable of holding about 10 bales of cotton. Witnesses for Davis-Hunt testified that they visited Hargrave on December 1 because they were concerned over the small amount of cotton received from him thus far. At that time, there were 19 pallets containing cotton on the edges of the fields.
To justify his delay in performing the contract, Hargrave introduced the following evidence;
During the 1973 season, Hargrave sold the cotton ginned before December 15 to Davis-Hunt for $44,000 at 30 cents per pound, and sold that ginned after December 15 to the Bluff City Cotton Company for $63,000 at 62 cents per pound.
Thus, Davis-Hunt contends that the weight of the evidence demonstrates that *180 Hargrave deliberately procrastinated in having his cotton ginned in order to sell it at a higher price than that agreed to in the contract. On the other hand, Hargrave contends that the evidence as to the late growing season, bad weather, and difficulty of ginning the cotton from the pallets excused the bulk of his tardiness in getting the cotton ginned and that the jury was justified in finding that Davis-Hunt had only been damaged to the extent of $9,000.
We affirm the trial judge in his conclusion that the evidence did not support the verdict and that the amount of damages awarded by the jury was the result of error or compromise.
The applicable rule of our decisions, in such cases as this, is that this court will not reverse the trial judge's order granting a new trial unless we are convinced, upon a review of the evidence, that it plainly and palpably supports the jury's verdict or plainly and palpably shows the trial court to be in error. Cobb v. Malone, infra.
In Hubbard v. Halstead (1975), 294 Ala. 688, 321 So. 2d 169, released concurrently with this opinion, this Court has reaffirmed the long established principles of Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891). The rules governing our review of orders granting motions for new trial are therein stated and need not be repeated here.
It seems crystal clear, from a careful consideration of the evidence in this cause, that it cannot be said to plainly and palpably support the jury's verdict. In view of a retrial of this cause, we think it would not be appropriate to discuss the evidence in any more detail than appears herein.
Davis-Hunt argues that it was entitled to a substantial verdict or to no verdict at all and asserts that this view was shared by the trial judge. This may have been the trial court's view, but it is not necessary to make that determination.
Under the court's oral charge (which the jury was bound to follow) the jury was charged that if Davis-Hunt was entitled to recover, its damages would amount to the difference between the contract price of the undelivered cotton and the market price on December 18, 1973. The jury was charged that they would have to look to the evidence "to see how much that is"the "undelivered cotton." Davis-Hunt contends, and the transcript supports it, that there was no evidence as to which of the 212 bales less than all of them, were delayed because of "bad faith." To conclude otherwise would result in a verdict based on mere speculation and conjecture.
If a verdict is not justified on some reasonable hypothesis presented by the evidence under the court's instructions, then it cannot stand. S. D. Winn Cigar Co. v. Wilson, 35 Ala.App. 466, 48 So. 2d 64 (1950) (per Harwood, J.).
When it appears the verdict cannot be sustained on any reasonable hypothesis of fact founded on the evidence, the verdict must be held to have been the result of compromise or mistake and must be set aside. Holcomb & Bowden et al. v. Reynolds, 200 Ala. 190, 75 So. 938 (1917). Here, the trial judge found the verdict was the result of such "error or compromise."
Of course, the trial judge is not permitted to set aside the verdict because, in his opinion, the jury gave too little or too much. However, under the rule of our cases, once he does so, his order will not be reversed unless the evidence plainly and palpably supports the verdict.
It is therefore that we affirm the order granting the plaintiff Davis-Hunt a new trial.
Affirmed.
*181 MERRILL, BLOODWORTH, MADDOX, ALMON, SHORES and EMBRY, JJ., concur.
HEFLIN, C.J., concurs specially.
FAULKNER and JONES, JJ., dissent.
HEFLIN, Chief Justice (concurring in result):
I would affirm the trial judge. While I am in agreement with Justice Jones' concept of the scope of appellate review when a trial judge grants a motion for a new trial, I am convinced that the trial judge did not abuse his discretion in this case. I am of the opinion that the jury verdict must have been the result of mistake or compromise and, therefore, must be set aside. Holcomb & Bowden v. Reynolds, 200 Ala. 190, 75 So. 938 (1917).
JONES, Justice (dissenting):
I respectfully dissent. See my dissenting opinion in Hubbard v. Halstead, 294 Ala. 688, 321 So. 2d 169.
When, as here, the new trial order is based on the assigned ground that the verdict is contrary to the great preponderance of the evidence, the common law standard applicable to the presiding judge is that the verdict must be sustained if there is "evidence on both sides or some evidence to support the verdict."[1]Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891).
In this case, the $9,000 verdict was substantially lower than the relief demanded by the appellee, but this fact alone is not a sufficient basis for granting a motion for new trial. The evidence introduced on the desirability of implementing module makers and the evidence that an unusually large amount of rain delayed the crop three weeks were facets which the jury could properly consider in determining what proportion of damage to Davis-Hunt was attributable to Hargrave's unreasonable delay.
Admittedly, the record reveals that no single witness's testimony supports a $9,000 verdict. Indeed, the tendencies of the evidence adduced by Davis-Hunt support a $52,810.50 verdict for the plaintiff, while the tendencies of the evidence adduced by Hargrave support a verdict for the defendantno recovery. The trial Court's order granting a new trial has the effect of holding that the jury was bound to accept the whole of the contention of one side or the other. I cannot agree.
The jury was freeto be sure, it was obligatedto sift from the whole of the evidence the truth; and, in its effort to find the truth, the jury may accept any part and reject any part of any witness's testimony. This fact finding prerogative was clearly defined in the Court's oral instructions to the jury.
Here, the jury found that the truth lay somewhere between the all or nothing contentions of the parties; and, in my opinion, the evidence supports its right to so find.
It is important to remember that it is not the role of the presiding judge to re-examine the facts of each case and decide whether the jury has returned the best of all possible verdicts; his role is only to make sure that the jury has based its verdict on some evidence properly before it.
I would reverse and remand.
FAULKNER, J., concurs.
[1] The trial Judge did not base his order on the ground discussed in Hubbard v. Halstead, supra, that the verdict was manifestly unjust, and I agree that that ground is not applicable. | September 25, 1975 |
fe7ae1a8-4d68-4a1d-84c3-59a4c697c517 | Dendy v. ANCHOR CONST. CO., INC. | 313 So. 2d 164 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 164 (1975)
Earnest W. DENDY et al.
v.
ANCHOR CONSTRUCTION CO., INC., and Laverne S. Smith, a/k/a Laverne S. Graves.
SC 1003.
Supreme Court of Alabama.
May 8, 1975.
Rehearing Denied June 5, 1975.
Fred Blanton and James R. Moncus, Jr., Birmingham, for appellants.
Harold T. Ackerman and Harold D. Rice, Jr., Birmingham, for appellees.
SHORES, Justice.[*]
This appeal is from a final decree entered in an action for specific performance of a written contract between the Dendys and Anchor Construction Company for the sale of a lot, with a house to be built thereon in accordance with certain plans and specifications. The agreement was executed on March 3, 1972, and provided that the plaintiffs (hereinafter referred to as purchasers) agreed to purchase and the defendants (hereinafter referred to as builder) agreed to sell "Property described as *165 Lot 2 Block 1, Oak Street, Pinson, AlabamaHouse to be built according to plans and specifications."
The purchase price was recited to be $32,250, "payable $1,000 earnest money, $5,700 cash on closing the sale, mortgage loan $25,550," and was conditioned upon the purchaser securing a conventional loan of $25,550 for 29 years. It further provided that the sale was to be closed and a deed delivered on or before 120 days after date of execution.
By way of answer, the builder asserted that there was never a mutual understanding and agreement between the parties relating to some of the material provisions of the contract.
To say the least, the contract is quite general as to some of its terms. For example, paneling was described only as "$7.00 per sheet," carpeting was not described other than not to exceed a certain price, the type of tile to be used in bathrooms was open to conjecture. Lighting fixtures were not detailed, other than "$200 wholesale."
The evidence was without material conflict that items such as carpeting, light fixtures, paneling, etc. were to be agreed upon in the future. It was not disputed that the purchasers had not selected some of these items, others had not been within the price range spelled out in the agreement, etc.
The builder testified, and it was not contradicted, that the purchasers' loan commitment was cancelled at the end of 120 days, and that the builder renewed it at its own expense two more times, and finally got a commitment in its own name to finish the house. In May of 1973, the builder returned the earnest money to the purchasers with interest.
It is obvious from the face of the contract that the parties contemplated that a number of things would be agreed upon in the future. Under such circumstances, this court has consistently refused to reverse the trial court for denying specific performance. We said:
and:
See also: Rushton v. McKee & Co., 201 Ala. 49, 77 So. 343 (1917).
There is another well-established rule which prevents our reversing the trial court in this case. As stated in Owens v. Cunningham, 266 Ala. 203, 95 So. 2d 74 (1957), and restated in Lee v. Crane, 270 Ala. 651, 653, 120 So. 2d 702 (1960):
Or, as first stated in Carlisle v. Carlisle, 77 Ala. 339, 341 (1884):
*166 We find no abuse of discretion in this case. The record is replete with testimony from which the trial court could have concluded that there was never a clear understanding of what the contract provided. Any number of things were left for future determination, some of which had not been decided at the time of trial. There was evidence from which the trial court could have concluded that both parties to the agreement had abandoned it.
Appellants, in oral argument and in brief, criticize the trial court's decree, which is in part as follows:
The purchasers' argument is focused on the finding that the contract was void. As indicated, there was evidence which would have supported a finding that the contract had been abandoned, and more than enough to support the court's determination that the plaintiffs were not entitled to specific performance. It might have been clearer had the decree used the word "unenforceable" in lieu of "void"; but, we think the meaning is clear that the trial court, under the evidence, found that the plaintiffs were not entitled to specific performance. This it was free to do.
We find no error to reverse. The decree appealed from is, therefore, affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.
[*] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at the time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Title 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So. 2d 858. | May 8, 1975 |
f1614cb7-6c16-4a43-a9a3-b6f172caa096 | Jewell v. Jackson & Whitsitt Cotton Co. | 313 So. 2d 157 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 157 (1975)
Jake JEWELL
v.
JACKSON & WHITSITT COTTON CO., a copartnership.
SC 1014.
Supreme Court of Alabama.
May 8, 1975.
Rehearing Denied June 5, 1975.
J. Garrison Thompson, Selma, for appellant.
W. W. Dinning, Demopolis, for appellee.
*158 MERRILL, Justice.
Plaintiff, Jake Jewell, brought a declaratory judgment action seeking the interpretation of a contract wherein Jewell agreed to sell all the cotton produced on 142.6 acres to defendant, Jackson & Whitsitt Cotton Co. This is an appeal by Jewell from a decree rendered in favor of the defendant.
Plaintiff is a cotton farmer. He primarily uses a planting method known as 2 and 1 skip row. Under this method, two rows are planted in cotton and every third row is left vacant, or skipped. The vacant row gives each plant more room to grow and obtain moisture. As a result, skip row cotton produces a higher yield per plant than does solid row cotton. Skip row planting, however, yields about the same amount of cotton per acre as solid row planting since there are fewer plants per acre, e. g., 100 acres planted in skip row produces approximately the same amount of cotton as 100 acres of solid row cotton.
About six weeks before the execution of the subject contract, Jewell applied for and received a cotton allotment from the Agricultural Stabilization and Conservation Service of the U.S. Department of Agriculture (A.S.C.S.). Jewell filled out A.S.C.S. form 516, "Intention to Participate and Payment Application," in which he stated that he expected to produce a yield of 690 pounds of cotton per acre.
The projected yield figure is calculated by the A.S.C.S. from an average of the actual yield of the cotton farmer for the three preceding years. The projected yield may vary considerably from the actual yield due to weather and environmental factors.
The projected yield per acre deviates from the actual yield per acre in another respect. The A.S.C.S. computes cotton allotment acreage in terms of "solid" acres. A skipped row, ditch, or other uncultivated area is not considered in computing "solid" acres planted for cotton allotment purposes. The A.S.C.S. calculates the number of "solid" acres of land planted by multiplying the number of acres of land planted in 2 and 1 skip row by .67. Thus, where the 2 and 1 skip row method is used, the projected yield per "solid" acre for A.S.C.S. cotton allotment purposes is appoximately 1/3 greater than the actual yield per acre.
On April 17, 1973, Jewell entered into the contract with Jackson & Whitsitt through Allen Small, officer manager of the Selma Compress Company, to sell part of his cotton to them for 35¢ per pound. Actually, the contract reads "35.00 per pound gin run" but the parties agree that the trade was 35¢ per pound. The contract provided in pertinent parts as follows:
At the bottom of the contract, below the parties' signatures, appeared the following:
[About two or three weeks later, Jewell asked Small to change the acreage from 150 acres to 142.6 acres, which corresponded to Jewell's cotton allotment, and this was done].
Jewell denied that the amount of the projected yield, 690 pounds, was on the contract when he signed it. Small testified that he secured the information as to the projected yield, 690 pounds, from Jewell, and that it was on the contract at the time that Jewell signed the contract.
Pursuant to the contract, Jewell planted, grew and harvested a skip row cotton crop *159 on 142.6 acres of land and delivered 143 bales of cotton with an average net weight of 475 pounds to Selma Compress Company, a bonded warehouse, for the account of Jackson & Whitsitt. Jewell also planted skip row cotton on 140 additional acres from which he harvested 127 bales. This cotton was delivered by Jewell in his own name to Selma Compress.
When Jewell attempted to sell the additional 127 bales, the Compress Co. "refused to allow the samples to be placed on the table for sale" because Jackson & Whitsitt claimed a portion of the additional bales. That day, cotton was selling between 68¢ and 72¢ per pound in Selma.
Plaintiff then filed this declaratory judgment action claiming that he was entitled to the additional 127 bales of cotton.
Jackson & Whitsitt based its claim upon an alleged custom and usage of the cotton trade that the number of acres expressed in the contract contemplated "solid" acres of cotton, according to the calculations of the A.S.C.S.
After hearing the evidence ore tenus, the trial court decreed as follows:
Regardless of Jewell's denial, we treat the contract as having shown the figures "I 8" and "690" on the lines under the signatures to have been there when Jewell executed the contact.
We first consider what is plain and undisputed about the contract. The buyer, Jackson & Whitsitt Cotton Co., agreed to pay 35¢ per pound for "all and only the cotton" produced by Jewell on the 142.6 acres which was the amount of his cotton allotment on his homeplace. Jewell did "practice normal good farming methods" in producing and harvesting the crop, and he produced 143 bales of cotton on the 142.6 acres which were delivered to the Compress Co. to the account of the buyer. It was also undisputed that the 2 and 1 skip row method is a good farming practice, and the production in bales or pounds of cotton therefrom is equal or better than that produced on comparable land in solid rows. It is also undisputed that had Jewell used the solid row method of planting on the 142.6 acres in the contract, there would have been no claim for more cotton.
Generally, where a person by his contract charges himself with an obligation possible to be performed, he must perform *160 it, unless its performance is rendered impossible by the act of God, by the law, or by the other party. Kamburis v. Stearns, 226 Ala. 171, 145 So. 449.
Under the factual situation up to this point and the applicable law, Jewell had performed his part of the contract unless the figures "I 8" and "69" added additional obligations.
The letter and figure "I 8" was the number given to Jewell's farm by A.S.C.S. each year in connection with his cotton allotment. The fact that it was there signified that Jewell's farm had a number and cotton allotment. There was not one word in the contract which tied the contract to any rules and regulations of A.S.C.S. which might be used to figure the basis of the payment of the allotment to Jewell.
The figure "690" was the projected yield of cotton per acre according to the records of A.S.C.S. This was not a figure based on hope or optimism of the farmer, but was based upon past performance. It was explained by appellee's expert witness, Dr. Louis J. Chapman, Cotton Specialist and Agronomist in charge of Extension Educational Program for Cotton Production for the State of Alabama, when asked what the term "projected yield 690" meant to him in the cotton business:
Dr. Chapman also testified that the cotton was not bought and sold on the projected yield, but the projected yield furnished a general idea on which the buyer could base his calculations:
Appellee's buyer, Peter Coleman, who handled and signed Jewell's contract after it had been filled in by Small, testified on direct examination:
Coleman also agreed that the actual yield could vary from 690 to 450 pounds of lint cotton per acre and conceded that there was nothing in the contract about skip-row cotton.
Thus, it appears that the figures "I 8" and "690" were on the contract for identification and informational purposes, and common sense is a sufficient basis for the fact that crops are not bought and sold on a projected yield, but on the actual yield.
The only way appellee could hope to tie the "690" to the contract was under custom and usage. Appellee produced several cotton buyers who testified to the customs and usages. But custom and usage is a two-way street.
A usage or custom to be admissible in explanation of the terms of a contract which are ambiguous or doubtful in signification must be reasonable, must not contravene or displace any of the general principles of statutory or common law, or vary the express terms of the contract, and must be brought home to the knowledge *161 of the party sought to be charged, either by proof of actual notice, or by proof of its existence sufficiently long to raise a presumption of knowledge. Mall Gift Cards, Inc. v. Wood, 288 Ala. 355, 261 So. 2d 31.
In Wye Shipping Co. v. Hunter, Benn & Co., 211 Ala. 326, 100 So. 475, this court said:
It is undisputed that this contract in 1973 was the first time Jewell had ever contracted or booked his cotton crop; he was not aware of any custom or usage relating to the contracting of a cotton crop; the first time he ever heard of it was when this case came up; he was not aware of any custom or usage when he signed the contract. He was not alone in this lack of knowledge. Other cotton farmers in the area, Robert Sanford (1,325 acres), T. E. McHugh (600 acres) and Furniss Ellis (no acreage shown) testified that they knew of no custom or methods in connection with the measuring of acreage in booking cotton for sale at a specified price. Lawrence Alsobrook, County Extension Chairman, also knew of no such custom or usage.
Another rule is that a contract is construed more strongly against the party who drew it. Travelers Ins. Co. v. Kernachan, 283 Ala. 96, 214 So. 2d 447. And in Alabama-Tennessee Natural Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So. 2d 619, this court said:
This contract was presented to Jewell by Allen Small after Small had filled some of the blanks on a typewriter and Jewell supplied Small with his name, the number of his allotment acres, the A.S.C.S. farm number and his projected yield. The contract is both uncertain and incomplete but it was made certain by agreement of both parties except as to when the figures "I 8" and "690" were affixed and whether or not the addition of those figures automatically incorporated all the terms and methods of computing the cotton allotment of Jewell in his contract with A.S.C.S. There was plenty of blank space on the contract to list any or all conditions of the A.S.C.S. contract, but they were not included.
We find no reason to disagree with any of the items in the trial court's "Finding of Fact" and we do not include it in this opinion.
We do disagree with the application of the law to those and other facts which we have included in this opinion. In view of Jewell's lack of knowledge of any custom or usage and the failure of appellee to bring it to his attention either by reference in the contract or other explanation, we are constrained to hold that the court erred in requiring that "a total amount of cotton, amounting to 690 pounds multiplied by 142.6 acres" be turned over to appellee by Jewell. Instead, the decree or order should provide that the 143 bales of cotton produced on Jewell's cotton allotment acreage (142.6 acres) be adjudged as the performance and settlement in full by Jewell under the contract in issue, and that the remaining 127 bales produced on the 140 additional acres be adjudged free of any claim by appellee.
In summary, we hold that the addition of "I 8" and "690" to the blank spaces *162 on the contract did not mean that the A.S.C.S. method of computing cotton allotment between the grower and the Department of Agriculture was to be used in the contract between Jewell and the cotton buyer.
Affirmed in part, reversed in part and remanded with directions.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | May 8, 1975 |
0e10f5eb-e14d-4bcb-bcd3-59466e272f00 | Haynes v. State | 312 So. 2d 414 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 414 (1975)
In re Grover Donald HAYNES
v.
STATE.
Ex parte Grover Donald Haynes.
SC 1227.
Supreme Court of Alabama.
May 1, 1975.
Donald W. Stewart, Anniston, for petitioner.
FAULKNER, Justice.
Petition of Grover Donald Haynes for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Haynes v. State, 54 Ala.App. 714, 312 So. 2d 406.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, MADDOX and EMBRY, JJ., concur. | May 1, 1975 |
abf0cc3a-5330-4f01-b51e-ffb330f448c4 | Price v. South Central Bell | 313 So. 2d 184 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 184 (1975)
Jack PRICE and Samuel Price
v.
SOUTH CENTRAL BELL, a Corp.
SC 918.
Supreme Court of Alabama.
May 1, 1975.
Rehearing Denied May 29, 1975.
*185 Hamilton, Butler, Riddick & Latour, and James W. Tarlton, III, Mobile, for appellants.
Atley A. Kitchings, Jr., and J. Richard Teel, Birmingham, and Thomas A. Johnston, III, Mobile, for appellee.
BLOODWORTH, Justice.
This is an appeal from a final judgment of the Circuit Court of Mobile County, which dismissed the complaint of the plaintiffs in a nonjury case after a hearing on the merits.
The plaintiffs, Jack and Samuel Price, seek to enjoin South Central Bell Telephone Company from changing the telephone number at their place of business, the Town House Motor Hotel in Mobile, and to recover punitive damages on the grounds that the threatened change constitutes an unlawful interference with the Prices' business and illegal coercion to force them to pay the debt of another. In its answer, the telephone company alleges that its actions were warranted under the applicable tariffs approved by the Alabama Public Service Commission. After a trial on the merits, the trial judge, concluding that plaintiffs Price were not entitled to any relief, dismissed the complaint with prejudice. We reverse and remand.
*186 The Town House Motor Hotel was previously operated by American Hotel Operators Corporation. When the record owner, the 1061 Corporation, defaulted on one of the mortgages on the property, the Price brothers, who were personal guarantors on a junior mortgage, purchased the hotel building at a foreclosure sale. The Prices then began operation of a hotel in the building on April 3, 1974, under the same name (Town House Motor Hotel) as used by the prior owner. (Mandarin Management, Inc., the Prices' family corporation, actually runs the hotel under a lease agreement with the Prices.)
Jack Price acting for Mandarin Management, Inc. applied to the telephone company for continuation of telephone service under the hotel's existing number, 438-4653. In lieu of a deposit, the telephone company accepted Price's personal guarantee of all charges incurred after April 3, 1974. In a letter tendered to the telephone company by Price, the prior owner consented to the continued use of the old number by the hotel.
Shortly thereafter, Price was told by telephone company officials that the hotel could not continue to use the old number and that no referral service would be provided unless the prior owner's past-due bill of $3,162.99 was paid in full. Two telephone company officers testified that their actions were justifiable under the applicable operating tariffs and that their sole consideration in the matter was the unpaid bill.
It is undisputed that the Prices have no connection with the prior owner or operator of the hotel, business or otherwise. There was also undisputed testimony: that the continued use of a business telephone number is valuable, particularly to a hotel whose number is listed in travel guides and with travel agencies; that ninety percent of this hotel's business comes from repeat telephone reservations; and that the hotel's business will be damaged to a significant but indeterminable degree by a change of number.
"Service regulations" are tariffs drafted by the regulated company and submitted to the Alabama Public Service Commission. If no objections are made to a proposed tariff within 30 days from submission, it becomes law and is considered part of the service contract between the telephone company and the subscriber. Tit. 48, § 53, Code of Alabama 1940 (Recompiled 1958).
The tariffs ("service regulations") applicable to the instant case are as follows:
"A2.3.11 Provision and Ownership of Telephone Numbers
The Prices do not question the validity or reasonableness of the tariffs, but claim the telephone company has acted arbitrarily and not in compliance with the tariffs by threatening a change in the number unless the old subscriber's bill is paid.
When a new subscriber desires to continue to use the old subscriber's number, but will not pay the old subscriber's bill, the following must occur, under tariff A2.3.6, for the new subscriber to be able to do so:
It is undisputed that there has been compliance with the first two requisites. As to the fourth requisite, the telephone company offers no reason why a change in number is required except that the Prices refuse to pay the prior owner's telephone bill.
Thus, the controlling question on this appeal is whether there exists a "relationship, business or otherwise" between the Prices and the former subscriber.
At trial two telephone company officials testified that their sole consideration in determining to change a number is whether the new subscriber will pay the old subscriber's bill. According to the two officials' testimony they did not, in this instance, make a determination as to whether there exists a "relationship, business or otherwise," between the old and the new subscriber. If the new subscriber refuses to pay the bill, the Company considers the matter is at an end, the number is changed, and no referral service is provided.
On this appeal, the telephone company contends its conduct is justified because there is a relationship, business or otherwise, between the Prices and the former owner in that both operate the same type of business (hotel) at the same location and under the same name (Town House Motor Hotel).
The appellants-Price contend that the telephone company's interpretation of the tariff is erroneous. They argue that the relationship between the old and new subscribers must be such that, in reality, there has been no real change in the identity of the subscribers but a change in name only. We agree with appellants-Price. In the present context, the word *188 "relationship" infers the existence of a connection or association between the old and new subscribersbusiness or "otherwise." Mere similarity or identity in the type of business operated by the old and new subscribers is not within the contemplation of the tariff.
As we have already mentioned, the telephone company's officers testified that their sole consideration in determining to change the number and in not providing referral service was the refusal to pay the old subscriber's bill. The question of "relationship, business or otherwise" did not enter into their decision.
It is our judgment that the telephone company's actions fall within the ambit of the rule that a public utility has no right to cut off or refuse service to a customer in order to compel that customer to pay the bill of a former subscriber, which it is not the duty of the customer to pay. Alabama Water Co. v. Knowles, 220 Ala. 61, 124 So. 96 (1929); 64 Am.Jur.2d, Public Utilities, § 67; See cases collected in Annot. 19 A.L.R.3rd 1227.
As another justification for its actions, the telephone company refers us to tariff A2.3.11 by which it reserves all property rights to its numbers and the right to change numbers. We would agree that a customer has no property right, as such, in a number and that the telephone company may change its numbers whenever, in good faith, it considers that this is necessary.
However, the Tenth Circuit Court of Appeals held, in construing a telephone tariff very similar to A2.3.11, viz.:
Although Shehi, supra, is factually distinguishable from the instant case, we believe the general principle of law enunciated therein is applicable here. The telephone company's actions are clearly arbitrary and contrary to tariff A2.3.6. The Prices will suffer injury from the change. If we followed the telephone company's interpretation of tariff A2.3.11, tariff A2.3.6 would be rendered meaningless and changes in subscribers' numbers could be made at the slightest whim of the company, regardless of the consequences to subscribers.
In its final judgment, the trial court found inter alia:
We recognize our oft stated rule of review that, when the trial judge hears the evidence ore tenus, his findings have the effect of a jury verdict and will not be disturbed on appeal unless plainly and palpably erroneous. Chrisman v. Brooks, 291 Ala. 237, 279 So. 2d 500 (1973). However, such rule is without application when the trial court erroneously applies the law to the facts before it. Messer v. Messer, 280 Ala. 395, 194 So. 2d 552 (1967).
We hold that the trial court erred in finding that the telephone company properly exercised the discretion vested in it under the tariffs. The trial court's finding obviously results from an error of lawa construction of the applicable tariffs which places an unlimited discretion in the telephone company to deal with its telephone numbers as it pleases and to change a new subscriber's number solely because a new subscriber refuses to pay an old subscriber's past-due bill.
At the trial, the telephone company moved to dismiss the suit against it on the ground that the action is not prosecuted in the name of the real party in interest.
*189 The basis for this motion is that the telephone service in issue is listed in the name of the Prices' family corporation, Mandarin Management, Inc., and not in the name of the Prices individually. The trial court denied the motion.
The telephone company now contends, on this appeal by the Prices, that even though we find the trial judge's findings were erroneous, on the merits, he reached the right result because the action should have been dismissed for failure to prosecute the suit in the name of the real party in interest. Rule 17(a), A.R.C.P. Therefore, it argues, the judgment of dismissal should be affirmed. We disagree.
The ruling of the trial court on appellee-telephone company's motion was adverse to it. If an appellee wishes to have rulings of the trial court adverse to it reviewed, an appellee must either take a cross-appeal or cross-assign errors upon the record brought up by the appellant. Tit. 7, § 746, Code of Alabama 1940 (Recompiled 1958); Rule 3, Revised Rules of the Supreme Court of Alabama.
Since the matter is not raised nor the issue presented to us, we will neither consider nor express any opinion upon the correctness of the trial court's ruling on the Rule 17 motion.
The telephone company cites Valley Heating, Cooling & Electric Co. v. Alabama Gas Corp., 286 Ala. 79, 237 So. 2d 470 (1970), as authority for the proposition that the power to grant or refuse an injunction is discretionary.
In cases seeking an award of punitive damages, it also argues, such an award is also discretionary with the trier of the fact, citing Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970).
Appellee-telephone company contends that these rules require affirmance because appellants have not shown that the trial judge abused his discretion in denying an injunction and punitive damages. We cannot agree with appellee.
An injunction and punitive damages are but forms of relief which a court has the power to grant. Under present practice, every final judgment (except a default judgment) should "grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Rule 54(c), A.R.C.P.
In the instant case it seems apparent that the trial judge did not dismiss the action because he considered injunctive and punitive relief to be inappropriate. Rather, it seems clear that he concluded appellants, as a matter of law, had no right to any relief. Such conclusion was erroneous.
Thus, we hold that, on the facts presented at trial, the trial court erred in dismissing the complaint and denying the appellants-Price any relief. It would not be appropriate on this appeal to speculate as to the form of relief to which the appellants Price may ultimately be entitled on remand as such rests peculiarly in the province of the trier of fact.
Accordingly, the cause is reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded.
FAULKNER, ALMON and EMBRY, JJ., concur.
HEFLIN, C. J., concurs in the result. | May 1, 1975 |
909eb063-bee9-43d2-a391-da26a393ac20 | Lightsey v. Kensington Mortgage and Finance Corp. | 315 So. 2d 431 | N/A | Alabama | Alabama Supreme Court | 315 So. 2d 431 (1975)
In re Wayne LIGHTSEY and Debbie Lightsey
v.
KENSINGTON MORTGAGE AND FINANCE CORP., a corp., etc., et al.
Ex parte KENSINGTON MORTGAGE AND FINANCE CORPORATION, a corp., etc.
SC 1101.
Supreme Court of Alabama.
June 19, 1975.
Rehearing Denied July 31, 1975.
Lee Bains, Bessemer, for petitioner.
Norman K. Brown, Bessemer, for appellees.
MERRILL, Justice.
This is a petition for writ of certiorari to the Tenth Judicial Circuit Court to review *432 a decree which held petitioner, Kensington Mortgage and Finance Corporation, in contempt for violating the terms of a preliminary injunction.
This contempt proceeding is collateral to the main case in which the Lightseys, plaintiffs, had purchased a mobile home on the installment plan and they sued the manufacturer, the retailer, Kensington Mortgage and Finance Corporation (hereinafter referred to as Kensington) and others for damages for defects in the mobile home.
On September 18, 1974, plaintiffs moved for a preliminary injunction to enjoin Kensington from foreclosing or collecting further payments on the mobile home until the suit was settled. At the hearing on October 3, the trial court granted plaintiffs' motion, and required the plaintiffs to pay the monthly payments to the clerk of the circuit court and ordered the clerk to deposit the payments in a bank at interest. The preliminary injunction was actually issued on October 9, but Kensington's counsel was present and participated in the hearing on October 3.
The injunction, issued October 9, 1974, provided in part as follows:
The trial judge did not require the plaintiffs to post bond as security for the issuance of the preliminary injunction.
On October 17, 21 and 23, plaintiffs received threatening collection letters from Kensington, even though the regular installment payment had been paid to the clerk on October 10 and the account was not delinquent when any of the Kensington letters were written. On October 23 and October 25, counsel for plaintiffs wrote counsel for Kensington (both practice in Bessemer) requesting that Kensington be notified that the account was not delinquent and to comply with the court's order. (We note that the record shows that Kensington's counsel in Bessemer advised Kensington promptly as to all events that had transpired.) Kensington wrote another letter on November 6 or 7 to the plaintiffs "to discuss repossession of your mobile home."
Plaintiffs filed a motion to punish Kensington for contempt on November 13, and asked for damages in the amount of $50,000.00, and the matter was set for hearing on November 22.
Counsel for Kensington explained to the court that the continued attempts to collect, in violation of the injunction, were due to computer malfunctions, assured the court there would be no more violations, stated that some people in Kensington's organization had been discharged as a result of the error, and that a telegram of apology was being sent to plaintiffs and their counsel. These telegrams were dated November 21 and received November 22.
On November 25, plaintiffs received a series of demand cards from Kensington. *433 Since the court had not ruled on the motion for contempt, plaintiffs moved that they be allowed to present additional evidence in support of their motion for contempt. This hearing was set for December 2.
Both sides presented evidence and argument and the cause was taken under advisement. On December 4, the court entered a "Judgment of Civil Contempt" against Kensington, assessing a fine against it for $20,000.00, directed to be paid to plaintiffs, and no opportunity was provided for Kensington to purge itself of the contempt.
On December 16, the trial court granted a stay of the fine pending a review in this court.
Kensington's first contention is that the trial court erred in issuing the preliminary injunction without requiring a bond. ARCP 65(c) requires a bond. We agree that the trial court erred in not requiring the appellee (applicant for the injunction) to file the required security.
In Board of Water & Sewer Com'rs v. Merriwether Const. Co., 276 Ala. 650, 165 So. 2d 739, this court said:
In Ex parte Miller, supra, the court said:
Rule 65(c), ARCP, provides in pertinent part:
We adopted our ARCP in 1973 and they became effective July 3, 1973. This is our first opportunity to write on Rule 65(c). As stated in Chats v. Freeman (C.A. 7th, 1953), 204 F.2d 764, "* * * a temporary restraining order should not issue without compliance with rule 65(c). To us, the rule seems plain, definite and unmistakable. There is nothing ambiguous about it. We conclude that the trial court committed error in issuing the temporary restraining order without providing for security as required by rule 65(c) of the Federal Rules of Civil Procedure. The judgment appealed from is reversed, and the cause is remanded." See also, Telex Corp. v. International Business Machines Corp. (C.A. 8th, 1972), 464 F.2d 1025.
We are aware that there are necessary exceptions to such an absolute holding in all cases under Rule 65(c), such as requiring only a nominal security, or where the litigant is impecunious or the issue is one of overriding public concern. Wright & Miller, Federal Practice and Procedure, Civil, § 2954, p. 529.
Still, the rule requires "the giving of security by the applicant" for a "restraining order or a temporary injunction" and our courts ought to either follow the rule or show why it should be changed.
We hold that before an injunction or restraining order is issued under ARCP 65, the giving of security by the applicant for the payment of costs, damages and reasonable attorneys fees as provided in Rule 65(c) is mandatory, unless the trial court makes a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist. See Hutchins v. Thrombley, 95 Idaho 360, 509 P.2d 579. There was no such finding in the instant case and no suggestion by the trial court in its orders that an exception did exist. It follows that the judgment of contempt must be reversed, because "there can be no injunction, and consequently no contempt for its violation, until the bond has been given." Ex parte Miller, 129 Ala. 130, 30 So. 611. See also, Annotation 12 A.L.R.2d 1093, §21.
This disposes of this case in this court, but in view of the fact that more proceedings may be had, we address ourselves to two other questions which arose in this case and which could arise in future proceedings, if any.
The first question is whether the contempt in this case was criminal or civil. The trial court treated it as a civil contempt and we think correctly so, although it partakes of the characteristics of both.
One of the most quoted cases on this subject is Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797, where it was said:
The subject was treated by this court in Ex parte Griffith, 278 Ala. 344, 178 So. 2d 169, where it was said:
"In Ex parte Dickens, 162 Ala. 272, 50 So. 220, it is stated:
"In Ex parte Hill, 229 Ala. 501, 158 So. 531, this court wrote:
"As stated in 17 Am.Jur.2d Contempt, Section 4:
We affirm these statements.
The second question is whether Alabama permits compensatory fines in favor of the adverse party in contempt proceedings. The trial court did award the fine of $20,000.00 to the plaintiffs in the instant case.
The federal courts allow indemnity or compensatory fines in both criminal and civil contempt cases. The states fall into three general categories: (1) those which have statutes that specifically authorize compensatory fines for civil contempt; (2) those whose statutes are silent as to compensatory fines and that silence is interpreted as a prohibition of such power; and (3) those whose statutes are silent, but hold that in the absence of a statutory prohibition, the power to assess compensatory fines is inherent in the court whose decree has been violated. See 17 C.J.S. Contempt §94, for discussion and citations.
This court has consistently applied a rather strict construction to contempt cases.
We are inclined to adopt the reasoning and result reached by the Supreme Court of California in H. J. Heinz Co. v. Superior Court, 42 Cal. 2d 164, 266 P.2d 5 (1954), when the question of compensatory fines was presented. The court noted the two different positions where the statutes were silent, and noted and cited cases from Idaho and Montana which held that "their statutory provisions precluded the courts from imposing compensatory damages for contempt" and the court concluded:
In Beverly v. Roberts, 215 S.W. 975, the Court of Civil Appeals of Texas, after noting what other courts had done, cited a prior Texas case and said: "It was held in such case that the prosecution for contempt did not warrant a civil judgment in redress of injuries resulting from the acts which constituted the alleged contempt, and that such remedy could only be obtained in a civil suit."
In Ex parte Textile Workers Union of America, 264 Ala. 656, 89 So. 2d 92, the fine was ordered "to be paid to the Register for the use and benefit of Madison County" when the violation was of a temporary restraining order issued by the then chief justice of this court. We know of *437 no statute or decision of this court that has ever authorized a circuit court to impose a fine as indemnity or as compensatory damages to the adverse party in a civil action. We think the question of the amount of unliquidated damages should be regularly tried so that a dissatisfied party could have an initial review by an appeal rather than by a writ of certiorari. An indemnity or a compensatory award of damages must be determined in an ancillary proceeding and is not permissible as an integral part of the court's adjudication of contempt in the circuit courts of this state.
Having held that Rule 65(c) requires "the giving of security by the applicant" and that this is mandatory unless specifically excepted by the court in its order granting a restraining order or a preliminary injunction, we hold that the injunction was not proper and, therefore, there was no contempt.
We are not to be understood as impinging, in this opinion, on the holding in Fields v. City of Fairfield, 273 Ala. 588, 143 So. 2d 177, and that of United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884, that violations of an order of a court are punishable as criminal contempt even though the order is set aside on appeal. In both of those cases, it was not contended that any procedural requirements were omitted, while here, the proceeding shows on its face that there was no compliance with Rule 65(c).
Nor are we to be understood as holding that where there is a violation of a valid restraining order and such violation proximately results in damages to the aggrieved party, such injured party is without a remedy.
Unlike the court in Texas, we do not see the necessity of requiring the aggrieved party in such an instance to pursue his remedy in another suit; but, like the California court, we believe either party on demand would be entitled to a jury trial on the issue of damages. We perceive of no reason why this cannot be afforded in the same proceeding on petition of the aggrieved party seeking damages after a finding by the trial court that the opposite party is in contempt. A jury would be impaneled to hear the evidence on such petition and determine whether damages, compensatory or punitive, should, under the usual rules, be imposed.
Reversed and remanded.
All the Justices concur. | June 19, 1975 |
7510d6cc-4156-4a38-b1f0-33492b0ffa8f | Mitchell v. Mobile County | 313 So. 2d 172 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 172 (1975)
Price L. MITCHELL et al.
v.
MOBILE COUNTY, etc., et al.
SC 832.
Supreme Court of Alabama.
May 8, 1975.
*173 Mylan R. Engel, Mobile, for appellants.
Armbrecht, Jackson & DeMouy, W. Boyd Reeves and A. Danner Frazer, Jr., Mobile, for appellee, Ray D. Bridges.
William J. Baxley, Atty. Gen., and Frederick S. Middleton, III, Asst. Atty. Gen., for all appellees.
EMBRY, Justice.
This is an appeal from a final judgment adverse to plaintiffs' claim that Act No. 1177 of the 1973 Regular Session of the Alabama Legislature is unconstitutional.[1] Plaintiffs, appellants here, are members of the Mobile County Personnel Board and the Director of that Board. Defendants, appellees here, are: Mobile County; Ray D. Bridges, Sheriff of Mobile County (his successor in office, Tom Purvis, has been properly substituted on appeal); all other counties and sheriffs thereof who come under the influence of Act No. 1177.
The trial court, after severing the first two sentences of the Act held the remaining portions constitutional, capable of execution, and construed "compensation" to mean "minimum basic salary." We affirm.
The full text of the Act is found in the final decree attached as Appendix.
Plaintiffs attacked this Act by complaint seeking declaratory judgment that the Act violated Ala.Const., Art. 4, §§ 45, 106, 110 and 111. Section 45 provides that an act shall be divided into sections and contain but one subject, clearly expressed in its title. Section 106 provides that local laws shall be advertised prior to passage. Section 107 prohibits repeal of local laws except after advertising. Section 110 defines general and local laws. Section 111 prohibits passage of a local law introduced as a general law. The complaint also alleged that the word "compensation" in the Act was vague. Defendants filed answers; defendant Bridges, an answer, cross-claim and counterclaim praying for enforcement of the Act. The matter was submitted to the trial court on pleadings, stipulation, exhibits, and brief testimony on a subject not related to this appeal. On February 28, 1974, the court rendered judgment declaring, *174 inter alia, the first two sentences of the Act:
Appellants assert that the trial court erred in four aspects. We shall deal with each in turn.
Appellants contend that the Act as passed by the Legislature was a local bill and, as such, violated Ala.Const., Art. 4, § 106, for failure to comply with the advertising requirements of that section. Act No. 1177 was not advertised prior to its introduction. In support of the contention that Act No. 1177 was a local bill as passed, appellants argue that naming Madison County in the Act clearly indicates it is local and intended to apply to one county. Further it is contended the Act is a local one because:
This argument that the operative effect of the Act is local in nature is answered by our recent decision in Hamilton v. Autauga County, 289 Ala. 419, 268 So. 2d 30.
In Hamilton:
In the case before us the trial court struck the first two sentences of Act No. 1177. The reasons for so doing are not questioned in this appeal. In this posture the present case is on all fours with Hamilton.
The lesson of Hamilton, and cases cited therein, is that if the remaining portions of an Act are complete within themselves, sensible and capable of execution, the Act will stand where invalid portions were deleted in accordance with a severability clause.
The portions of Act No. 1177 which appellants claim make it a local Act were contained in these parts deleted by the judgment of the trial court. Hence, it *175 matters not whether the Act as passed was a local one. That which is important is whether the remaining portions are sufficient to stand alone.
The remaining portions of the Act apply equally to all counties with a population of less than 600,000. We cannot say such a population classification is unreasonable, or that it does not bear any rational relationship to the minimum salary established. Likewise, the remaining portions are complete, sensible, and capable of execution. Hamilton, supra.
Appellants' second contention is that Act No. 1177 was introduced in the Legislature as a general bill, amended to become, and passed as, a local bill thus violating Ala.Const., § 111.
In support of this contention appellants rely on the opinion of the minority in Opinion of the Justices, 284 Ala. 626, 227 So. 2d 396. There Justices Merrill and Harwood opined that a severability clause could not save an act which violated § 111, for to permit such would be contrary to legislative intent. The majority were of the opinion that a severability clause permitted excise of portions of an act to save it from invalidity under § 111. The reasoning of the majority of the justices was followed in Hamilton. There it was noted that the act, there in question, was passed by the Legislature sixteen days after the justices rendered their opinion concerning the relationship between a severability clause and Ala.Const., § 111.
It has often been stated that the purpose of the advertising requirement of Ala.Const., § 106, is to prevent deception of those immediately affected by local legislation and allow such persons to oppose the proposed enactment if they desire. Wilkins v. Woolf, 281 Ala. 693, 208 So. 2d 74; Marion County v. Middleton, 246 Ala. 464, 21 So. 2d 312; Burns v. State, 246 Ala. 135, 19 So. 2d 450; Gray v. Johnson, 235 Ala. 405, 179 So. 221. Ala.Const., § 111 provides:
It is clear that the purpose of this section is prevention of deception which could result from a local bill being passed but not advertised because it was introduced as a general bill. When an act is stripped of its local amendments, the reasons underlying both § 106 and § 111 no longer have validity. Since the remaining portions affect all within its ambit alike, there is not reason to guard against deception nor protect persons peculiarly affected.
All the foregoing is, and must, be, predicated on the existence of a severability clause in the Act under consideration. The presence of such a clause is persuasive authority that the Legislature intends valid portions of legislative enactments to survive. Hamilton supra, and cases cited therein.
The third contention is made that use of the severability scalpel by the trial court enlarged the operation of the Act beyond that which the Legislature intended.
There is no merit in this contention.
Appellants' last contention is that the trial court incorrectly construed "compensation" to mean minimum basic salary excluding overtime pay, riot training pay and other benefits and allowances (paraphrase from judgment below see Appendix). Appellants and appellees have cited numerous cases which define "compensation." Such cases are often instructive, but we look to legislative intent in the language of the Act where that language requires clarification. We must find that intent only from the words in which it is expressed, applied to the facts existing at the time. Alabama Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So. 2d 108; Rodgers v. Meredith, 274 Ala. 179, 146 So. 2d 308; May v. Head, 210 Ala. 112, 96 So. 869; State v. Lamson & Sessions Co., 269 Ala. 610, 114 So. 2d 893.
The purpose of Act No. 1177 is to provide for uniform minimum compensation of deputy sheriffs in counties with less than 600,000 population which irrevocably opt to come under the operation of that Act. If we were to assume that the Legislature intended "compensation" to include such remuneration as overtime pay, riot training pay and other benefits, it is difficult to believe that the Legislature would have included the words "uniform" and "minimum" in the Act. Overtime pay, riot training pay, and benefits may vary greatly from county to county and from individual to individual. The inclusion of such variables in "compensation" necessarily would defeat the desired uniformity envisioned by the Act. Those items could not be uniformly allocated among various deputies some of whom may work or train more than others.
We conclude that the trial court was correct in defining "compensation," as it is used in Act No. 1177, to mean the minimum basic salary of deputy sheriffs excluding all other pay and benefits.
Affirmed.
BLOODWORTH, MADDOX, ALMON and SHORES, JJ., concur.
HEFLIN, C. J., and MERRILL, FAULKNER and JONES, JJ., dissent.
This matter came on to be heard on December 14, 1973, in open Court and was submitted to the Court on the pleadings, that is to say the complaint filed by Price L. Mitchell, Morris Berger and Charles Vaughan, as the duly appointed and qualified members of the Personnel Board for Mobile County, Alabama, and George H. *177 Pierce, as Director of the Personnel Board for Mobile County, Alabama, seeking a declaratory judgment with respect to Act No. 1177, Regular Session of the Legislature of Alabama, 1973, approved September 19, 1973, the answer and counter-claim and cross-claim of the defendant Ray. D. Bridges, as Sheriff of Mobile County, Alabama, against plaintiffs and defendant Mobile County, a political subdivision of the State of Alabama, respectively, the answer of the defendant Mobile County and its answer to the cross-claim of the defendant Bridges, and the answer of all counties in the State of Alabama and the sheriffs of said counties by the Honorable William J. Baxley, Attorney General of the State of Alabama, and on the pre-trial order made and entered on November 16, 1973, under authority of Rule 16, Alabama Rules of Civil Procedure, the written stipulation entered into by the parties to this cause and the evidence adduced at said hearing. All parties were present by and through their respective counsel.
This Court, in accordance with the allegations in said pleadings and the issues formulated by the Court as set forth in the pre-trial order dated November 16, 1973, is called upon to determine whether said Act 1177 is Constitutional with respect to the Constitution of Alabama of 1901, as amended, and if it be held to be Constitutional, to construe the various provisions of said Act including, but not limited to, the meaning of the word `compensation' in said Act, the word `deputies', to determine when a sheriff must make an `irrevocable election' and to determine what counties of the State the Act applies.
Said Act. No. 1177 as passed by the said 1973 Legislature, and approved September 19, 1973, reads as follows:
Enrolled, An Act, To provide for the uniform minimum compensation for all deputy sheriffs in certain counties having less than 600,000 population according to the last or any subsequent federal census in the State of Alabama.
Section 1. Except in counties where salaries of deputy sheriffs are fixed and controlled by a merit system provided nevertheless and however that Madison County shall be under this Act. Except in counties where salaries of deputy sheriffs are fixed and controlled by a merit system, or Civil Service Boards, provided, however, this exception shall be inapplicable in all counties having populations of not less than 300,000 nor more than 600,000 according to the most recent federal decennial census. The compensation of all deputy sheriffs in the various counties having less than 600,000 population according to the last or any subsequent federal census of the State of Alabame shall be not less than 600.00 per month, provided, however, that the compensation of the Chief Deputy Sheriff in each County shall be not less than 700.00 per month.
Section 2. The compensation provided for by this Act shall be paid from any funds available to the governing body of any such county. That any Sheriff that now has a deputy pay bill will have 30 days to make an irrevocable choice of which pay bill to come under by advising said county commission.
Section 3. Any law or parts of law in conflict with the provisions of this Act are hereby repealed.
Section 4. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 5. This Act shall become effective October 1, 1973.
And this matter having been considered by the Court, it is, therefore, ORDERED, ADJUDGED and DECREED by the Court as follows:
1. That the first two sentences of Section 1 of said Act, `Except in counties *178 where salaries of deputy sheriffs are fixed and controlled by a merit system provided nevertheless and however that Madison County shall be under this act. Except in counties where salaries of deputy sheriffs are fixed and controlled by a merit system, or Civil Service Boards, provided, however, this exception shall be inapplicable in all counties having populations of not less than 300,000 nor more than 600,000 according to the most recent federal decennial census.', are vague, confusing and ambiguous and are invalid, but that the remainder of said Act is competent to stand alone and in view of the severability clause in Section 4, is therefore valid and not repugnant to the Alabama Constitution of 1901, as amended.
2. That the Act applies as of October 1, 1973, to all Counties of the State of Alabama having populations of not more than 600,000 according to the most recent Federal decennial census.
3. The provisions of said Act 1177 apply in said counties covered by the same to all duly appointed and acting deputy sheriffs and chief deputy sheriffs employed on a full time basis as law enforcement officers and whose duties require them to enforce the law generally and to execute Court processes and orders of all kinds, both civil and criminal, including, but not limited to, the service of Court processes, both civil and criminal, and the guarding and supervision of prisoners.
4. That the word `compensation' in said Act means the minimum basic salary to be paid to each such deputy sheriffs and chief deputy sheriffs in the counties covered by Act 1177, excluding overtime pay, riot training pay, uniform allowances, insurance, retirement benefits, sick leave and similar allowances and benefits, which said minimum shall be not less than $600.00 per month in the case of deputy sheriffs and not less than $700.00 per month in the case of chief deputy sheriffs. In those counties where the legal minimum compensation, as defined herein, exceeds the minimums provided for in said Act 1177, said Act 1177 shall not effect a reduction in pay. The said respective minimum compensations shall commence as of October 1, 1973, the effective date of this Act, PROVIDED, NEVERTHELESS, that with respect to any County covered by said Act where there was in effect October 1, 1973, an Act of the Legislature governing the pay of deputy sheriffs, the sheriff of such county or counties shall have irrevocably elected to come under the provisions of Act 1177 within thirty (30) days after October 1, 1973, the effective date of the Act. No such election need be made by a sheriff of any other county in the State covered by this Act which is not subject to an Act of the Legislature covering the pay of deputy sheriffs in said county.
5. That an `irrevocable election' by the Sheriff of a county covered by this Act, where an election is necessary, thereunder, shall be made to the county governing body in writing or orally, including the filing of an answer or pleading in this civil action, expressing such election, provided that the said election, including the filing of a responsive pleading in this suit, shall have been made within thirty (30) days after the effective date of this Act, October 1, 1973. It is further ordered that defendant Bridges, as Sheriff of Mobile County, has timely elected to come under Act 1177.
6. That the respective governing bodies of the counties to which Act 1177 is applicable as herein defined and ordered and where the respective sheriffs have made an election with respect to said Act, if necessary, as herein provided, shall pay said minimum compensation, as herein ordered, retroactively to October 1, 1973, and thereafter, out of any funds available to said respective county governing bodies.
7. That the costs of Court in this cause incurred are apportioned equally between the plaintiffs, the defendant Mobile County and the defendant Ray D. Bridges as Sheriff *179 of Mobile County, for which let execution issue.
Done this the 28th day of February 1974.
HEFLIN, Chief Justice (dissenting):
In the dissenting opinion of Justice Merrill, in which I have concurred, in the case of Hamilton v. Autauga County, 289 Ala. 419, 268 So. 2d 30 (1972), the following appears:
"We also said in Salter, supra:
In the present case after the invalid portions are stricken, Act No. 1177 of the 1973 Regular Session of the Alabama Legislature applies to all counties in the state with a population of less than 600,000. The Act as passed by the legislature excluded all counties where the salaries of deputy sheriffs were fixed and controlled by merit system or a civil service board. Obviously, this exception prevented legislative opposition from merit and civil service counties. In my judgment, the Act would never have passed the legislature without the exclusion. It appears to me that the majority opinion by the use of the severability clause is making the Act effective in many counties in which the legislature intended that the Act not be effective. Thus, the treatment given the severability clause gives more effect than the expressed intention of the legislature in dealing with numerous counties of the state.
Therefore, I respectfully dissent.
MERRILL, FAULKNER and JONES, JJ., concur.
[1] Final decree is attached as Appendix hereto. | May 8, 1975 |
b0c43fe2-46af-4916-afcd-5a0d57b14a2b | Mallory v. State | 313 So. 2d 208 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 208 (1975)
In re Ricky MALLORY
v.
STATE.
Ex parte Ricky Mallory.
SC 1274.
Supreme Court of Alabama.
May 22, 1975.
Michael Crespi, Birmingham, for petitioner.
No appearance for respondent, the State.
MERRILL, Justice.
Petition of Ricky Mallory for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mallory v. State, 54 Ala.App. ___,313 So. 2d 203. | May 22, 1975 |
272ba77a-682b-439e-b191-d09c936a94f1 | Burgess Mining and Construction Corp. v. State Ex Rel. Baxley | 310 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 872 (1975)
In re BURGESS MINING AND CONSTRUCTION CORP., a corporation
v.
STATE of Alabama ex rel. William J. BAXLEY, Attorney General.
Ex parte Burgess Mining and Construction Corporation, a corporation.
SC 1148.
Supreme Court of Alabama.
April 3, 1975.
Zeanah, Donald, Lee & Williams and Wilbor J. Hust, Jr., Tuscaloosa, for petitioner.
None opposed.
ALMON, Justice.
Petition of Burgess Mining and Construction Corporation for writ of certiorari to the Court of Civil Appeals to review and revise judgment and decision of that court in Burgess Mining and Construction Corporation v. State ex rel. Baxley, 55 Ala. App. ___, 312 So. 2d 842, is denied.
In denying the petition for writ of certiorari in this case, this Court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Civil Appeals. In re Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. | April 3, 1975 |
e4753995-7a84-4ea3-b738-a1c410db1bad | Ford v. Ford | 310 So. 2d 234 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 234 (1975)
In re Harriet C. FORD
v.
Gerald Lamar FORD. Ex parte Harriet C. Ford.
SC 1111.
Supreme Court of Alabama.
March 13, 1975.
Richard D. Lane, Auburn, James T. Gullage, Opelika, for petitioner.
No brief for respondent.
MERRILL, Justice.
The trial court denied a petition for modification of a decree of custody which granted the custody of a girl child to her father with the mother having the child on alternate weekends.
The Court of Civil Appeals considered three asserted errors and affirmed the decree of the trial court. 54 Ala.App. 510, 310 So. 2d 230.
Petitioner raises three points in her petition for writ of certiorari. Two are without merit, but the third raises a valid question but not one sufficiently prejudicial to require the granting of the writ of certiorari.
In its opinion, the Court of Civil Appeals states:
Petitioner correctly argues that the use of the word "adversely" limits the law as stated in our cases. The Ponder case, cited supra, does not contain the word "adversely," and the opinion in Ponder cites Greene v. Greene, 249 Ala. 155, 30 So. 2d 444. In Greene, this court quoted with approval a portion of a quotation from Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 40 L.R.A. 623, the latter part of which reads: "* * * the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of the custody will materially promote his child's welfare." (Emphasis supplied).
The rule is correctly stated in Ponder, supra, as follows:
We approve the quoted paragraph from the opinion in the instant case with the omission of the word "adversely."
The opinion of the Court of Civil Appeals is corrected and the petition for writ of certiorari is denied.
Opinion corrected and writ denied.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | March 13, 1975 |
8dfc8674-3960-42c9-9fcf-d47aebb200a6 | Tolen v. State | 272 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 272 So. 2d 281 (1973)
In re Clinton TOLEN
v.
STATE.
Ex parte Clinton Tolen.
SC 224.
Supreme Court of Alabama.
January 11, 1973.
Maye & Melton, Opelika, for petitioner.
No brief for the State.
HARWOOD, Justice.
Petition of Clinton Tolen for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Tolen v. State, 49 Ala.App. , 272 So. 2d 279.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | January 11, 1973 |
8eb8e1bc-b5ff-487b-afe5-159e34fdab3c | Plant v. RL REID, INC. | 313 So. 2d 518 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 518 (1975)
Mildred PLANT, surviving widow of Tramble Plant, Deceased
v.
R. L. REID, INC., a corp., et al.
SC 1082.
Supreme Court of Alabama.
May 22, 1975.
*519 Cunningham, Bounds & Byrd, Mobile, for appellant.
Alex T. Howard, Jr., Mobile, for appellees.
SHORES, Justice.
The constitutionality of Act No. 788, Acts of Alabama 1969, page 1418 (Title 7, § 23(1), Code of Alabama 1940, Recompiled 1958), is before us again. The seven-year provision of that act was declared unconstitutional in Bagby Elevator & Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So. 2d 306 (1970).
The facts are not disputed. On November 25, 1972, Tramble Plant, while working as an employee of the Alabama State Docks, was killed when his hands became caught between the drum or pulley and a conveyor belt, causing him to be pulled into the conveyor system. Prior to this occurrence the conveyor system had been altered in accordance with plans and specifications prepared by the defendant, R. L. Reid, Inc. Plant's surviving widow filed an action under the provisions of Title 26, § 312, Code of Alabama 1940, Recompiled 1958, against R. L. Reid, Inc. alleging that her husband's death was caused by Reid's negligence in designing the equipment.
Defendant Reid filed an answer in which it claimed that the plaintiff's action was barred by the "applicable" statute of limitation of the State of Alabama. The facts are:
The trial court granted defendant's motion for judgment dismissing the action. The appeal is from that judgment.
The act provides:
"Act No. 788
"Approved September 12, 1969.
"Time: 4:57 P.M."
Neither the holding nor the rationale of Bagby is challenged here, and we reaffirm that decision as a prelude to consideration of the validity of the remainder of the act. That is the question presented: Whether the remainder of the act, absent the seven-year provision, is violative of the Constitution.
As noted in Bagby, some thirty states have enacted similar statutes designed to limit the time during which actions may be brought against architects, designers, engineers, etc.
The jurisdictions which have considered the constitutionality of these statutes are about equally divided in the results reached. Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568 (1973); Skinner v. Anderson, 38 Ill. 2d 455, 460, 231 N.E.2d 588, 591 (1967); Saylor v. Hall, 497 S.W.2d 218 (Ky.1973); Rosenthal v. Kurtz, 62 Wis.2d 1, 213 N.W.2d 741 (1974), rehearing denied 216 N.W.2d 252 (1974); Carr v. Miss. Valley Electric Co., 285 So. 2d 301 (La.App.1973); Nevada Lakeshore Co. v. Diamond Electric Co., Inc., 89 Nev. 293, 511 P.2d 113 (1973); Josephs v. Burns & Bear, 260 Or. 493, 491 *521 P.2d 203 (1971); Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash. 2d 528, 503 P.2d 108 (1972); and Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972).
These statutes are unlike traditional statutes of limitation in that, by the very nature of the traditional statute, it bars a cause of action solely because the plaintiff has slept on his rights and has not asserted a claim during a period when it could be successfully maintained. In tort cases, the date from which the traditional statute of limitations begins to run is the date upon which the cause of action accrues, normally the date the injury occurs. Brotherhood of Locomotive Firemen & Eng. v. Hammett, 273 Ala. 397, 140 So. 2d 832 (1962). Act No. 788 requires that the action be commended ". . . within four years after the final completion of such improvements, and not afterwards. . . ." The act goes on to include a "six months after discovery" of the cause of action saving clause.
Our analysis of the act requires an examination of the effect of these two clauses as applied to various factual situations.
For example:
What period of time is allowed for the filing of an action claiming damages for injury occurring one day after completion of improvement? Does the plaintiff have four years less one day in which to bring his action or does the general one-year statutory limitation apply? (Title 7, § 26, Code)
Conversely, should one be injured one day short of four years after completion of the improvements, does he have but one day to file suit, six months, or does the one-year statute apply?
If one is injured ten years after the final completion date, does the four-year provision extinguish the right; or does the six-month clause apply affecting the remedy only, and he has that period in which to assert the right?
If the injury results in death, does the personal representative have either four years, two years, or six months after death (or after final completion) for bringing an action for wrongful death depending solely upon whether the death occurred immediately after completion of the improvements, sometime during the four-year period after completion, within six months of the fourth anniversary thereof, or after the completion date plus six months?
In a wrongful death case, has Act No. 788 repealed, by implication, Title 7, § 123, Code, which prescribes as a substantive element of the cause of action, the requirement that it be brought within two years?
Does the passing of four years completely extinguish the right, although no injury has yet occurred, or does one have six months after "discovery" to bring suit regardless of how long the improvements have been conpleted?
The latter interpretation is inconsistent with the first, but such an interpretation is compelled to give any meaning to the six months' provision.
These are troublesome questions.
Litigants should be penalized for failing to assert timely claims and persons should be protected against the burdens of defending stale claims. These subjects are appropriate ones for legislative action, but Act No. 788, at least in tort cases, raises more questions than it answers.
It has been suggested that these statutes are analogous to the medical malpractice statutes. Alabama's is carried in Title 7, § 25(1), Code, and its constitutionality has been upheld in Sellers v. Edwards, 289 Ala. 2, 265 So. 2d 438 (1972). However, there is an immediate difference readily apparent. The medical malpractice Act provides that:
Under the provisions of this act, the time for bringing suit commences when the cause of action accrues, which is at the time of the wrongful act or omission producing injury. The "plaintiff" has a cause of action at that point. If the cause of action (injury) is not discovered within the two-year period, it may be asserted within six months after discovery. The distinction between the two acts is apparent. The medical malpractice statute is a traditional statute of limitation in that the accrual of the cause of action starts the running of the period. In Act No. 788, the date of completion of the improvements starts the running of the period at a time when no cause of action in tort necessarily has accrued.
A party has a right to bring an action in contract when the other party breaches the agreement. In tort actions, the breach of duty does not produce a cause of action until such breach proximately results in injury or damage. The statute of limitations begins to run from the time of injury in tort cases. The soundness of this rule has rarely been questioned and the malpractice statutes are not inconsistent with it.
It is the prerogative of the legislature to fix the time in which causes of action must be commenced. A plaintiff's delay in asserting a right within the time prescribed by the legislature may be fatal to his suit, and no court will excuse his delay if the time provided is reasonable, reasonableness being primarily a legislative matter.
If Act No. 788 is read to bar all claims not discovered and asserted within four years of completion of improvements to real estate, it is a radical departure from the traditional justification of statutes of limitation based upon a plaintiff's delay. If it is construed to allow claims without regard to how long the improvements have been completed, conditioned only upon the plaintiff's bringing the action within six months after its accrual, the two provisions are incompatible, since such an interpretation would allow the six months' clause to revive a right of action extinguished by the four-year provision.
Saving clauses necessarily contemplate the running of the period of limitation against an accrued cause of action and thus excuse for an extended period, for lack of discovery, the assertion of the claim. Both the medical malpractice Act and the saving statute for fraud actions (Title 7, § 42, Code) demonstrate this principle. In this case, if the four-year provision is given operative effect, the right of action was extinguished prior to the injury causing death, and the saving clause can logically have no operation.
We cannot say which, if either effect, the legislature intended. In adopting Act No. 788, Alabama followed a model act enacted in a number of states about the same time. An excellent article appearing in 18 Catholic University Law Review 361 (1969), Limitation of Action for Architects and BuildersBlueprints for Non-Action, traces the history of the statutes, and points out their constitutional vulnerability. The article recognizes, as we do, the obvious need for some protection to be afforded architects and builders, but points out the failure of the model act to meet that objective. We think Act No. 788 fails in that objective.
In granting immunity from suit, the legislature is limited only by Article 1, § 13, Constitution 1901, and must not act arbitrarily or capriciously. Unquestionably, it may fix the time in which suits may be brought, and is the primary judge of what constitutes a reasonable time for doing so, so long as it is not so limited as to deny justice. Mills v. Scott, 99 U.S. 25, 12 L. Ed. 1201 (1878). Further, legislative *523 classification is not prohibited per se, so long as the classification is reasonably related to a legitimate object of the legislation.
Some of the states have found that similar legislation violates one or the other of these well-recognized constitutional restraints. Arguably, Act No. 788 might be subject to the same criticism. However, in applying accepted rules of statutory construction, we cannot say which of the various interpretations of the act the legislature intended. Neither of the two provisions should operate to defeat the effect of the other, nor can they be reconciled to give operative effect to both. As pointed out by Chief Justice Heflin in his concurring opinion in Bagby, ". . . these two provisions can not be intermeshed without vagueness, indefiniteness and uncertainty." We agree, and therefore must hold that in tort actions, Act No. 788 is void for that infirmity. It is our responsibility:
See also: Opinion by the Justices, 249 Ala. 88, 30 So. 2d 14 (1947); Dewrell v. Kearley, 250 Ala. 18, 32 So. 2d 812 (1947); and Mims v. Blanton, 272 Ala. 457, 131 So. 2d 861 (1961).
It follows that the judgment appealed from must be reversed and remanded. The applicable statute of limitation in this case, in view of our holding here, is controlled by Liberty Mutual Ins. Co. v. Lockwood Greene Eng., Inc., 273 Ala. 403, 140 So. 2d 821 (1962), which held that the period prescribed by Title 7, § 123 (the wrongful death statute), governs in a Title 26, § 312, action.
Reversed and remanded.
HEFLIN, C. J., and FAULKNER, JONES and EMBRY, JJ., concur.
ALMON, J., concurs specially.
MERRILL, BLOODWORTH and MADDOX, JJ., dissent.
ALMON, Justice (concurring specially):
I concur in that portion of the majority opinion which holds that the legislative act in question is inoperative and void for vagueness as it exists after Bagby Elevator & Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So. 2d 306.
I do not concur with the conclusions regarding the medical malpractice act in Title 7, § 25(1), Code. At this time I do not think it is necessary to place a construction upon that act.
BLOODWORTH, Justice (dissenting).
This is a close case in my judgment. Justice Shores' opinion for the majority is well written and persuasive. Nevertheless, I have concluded that Act 788, as construed by our holding in Bagby Elevator and Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So. 2d 306 (1974), now provides that such actions must be commenced within four (4) years after the final completion of the improvements, unless the cause of action is not discovered and could not reasonably have been discovered within such period, when an additional six (6) months is allowed. It is my view that the Act now constitutes an "open end" statute with no period of limitation of years within which to bring the action under the exception, except the six (6) months after discovery of the cause of action, etc.
*524 Due to the fact that plaintiff, in the instant case, did not bring her action within the six (6) months' period, I would affirm the trial court's judgment holding her action to be barred.
I would reserve my judgment as to whether the same reasoning, which impels the majority to reach their conclusions with respect to Act 788, also applies to the "Medical Malpractice Act."
I see no need to answer the various theoretical situations which might arise under the statute as we are here confronted only with the factual context in which this case did arise.
I consider the Act to be workable and not inoperative and void for vagueness as the majority holds. It is therefore that I dissent.
MADDOX, Justice (dissenting).
In Bagby, I set out, in a lengthy dissent, my reasons for believing that Act No. 788 was constitutional. I am still persuaded that I was right then, and I believe I am right now. A reasoned study of my dissent there will answer every question raised in the majority opinion. Consequently, no useful purpose would be served by restating my views again, but I would like to call attention to the fact that some other courts, both state and federal, in addition to those shown in my dissent in Bagby, have found no constitutional problem raised by such "shield" statutes. See Nevada Lakeshore Co. v. Diamond Electric, Inc., 89 Nev. 293, 511 P.2d 113 (1973); Carr v. Miss. Valley Electric Co., 285 So. 2d 301 (La.App.1973); Smith v. Allen-Bradley Co. et al, 371 F. Supp. 698 (W.D.Va.1974).
In Carr, the Louisiana court said:
A federal court, construing a Virginia "shield" law, said practically the same thing the Louisiana court said in Carr. In Smith v. Allen-Bradley Co. et al, supra, the plaintiff argued that the Virginia statute barred his cause of action before it accrued (an argument made both in Bagby and here), and because it was a bar, the statute prevented any hearing for redress of an alleged wrong committed by a private party.
The Federal District Judge held:
I think the majority is wrong, but I can do nothing about it except register my dissent respectfully, which I have done now on two occasions.
MERRILL, J., concurs. | May 22, 1975 |
0dfde5f7-93a8-4c10-9f1e-900108e5cb3a | Lipscomb v. Tucker | 314 So. 2d 840 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 840 (1975)
Virginia Bailey LIPSCOMB et al.
v.
John H. TUCKER and Loma Gene Tucker.
SC 882, SC 882A.
Supreme Court of Alabama.
May 22, 1975.
*843 George A. Moore, Huntsville, for appellants George L. Bailey, III, and Patricia Bailey.
Cloud, Berry, Ables, Blanton & Tatum and James T. Baxter III, Huntsville, for appellants, Virginia Bailey Lipscomb, Virginia Lee Bailey (Worley), Mary Alice Bailey Abercrombie, and Helen Jane Bailey Childers ("mortgagee-defendants") and
Dieter J. Schrader, Huntsville, for appellees.
BLOODWORTH, Justice.
On January 16, 1973, John H. Tucker and Loma Gene Tucker (plaintiffs-Tucker) filed a complaint in the Circuit Court of Madison County against Virginia Bailey Lipscomb, Virginia Lee Bailey, Mary Alice Bailey Abercrombie, and Helen Jane Bailey Childers ("mortgagee-defendants") and George L. Bailey, III, and Patricia A. Bailey ("defendants-Bailey").
The complaint seeks to:
The mortgagee-defendants answered the complaint by denying that the mortgage had been satisfied and disclaiming any knowledge of, or connection with, the other matters alleged in the complaint. The mortgagee-defendants then filed a counterclaim against the plaintiffs-Tucker and a cross-claim against the defendants-Bailey, alleging that the mortgage is in default and seeking a foreclosure.
*844 In their reply to the counterclaim, the plaintiffs-Tucker deny that the mortgage is in default and allege that it has been paid in full.
In their answer to the cross-claim, defendants-Bailey admit that the mortgage is in default. In answer to the parts of the original complaint directed to both of them, defendants-Bailey deny the existence of the alleged contract for the sale of real property and interpose the affirmative defenses of statute of frauds, laches, and the statute of limitations.
As to that part of the original complaint directed only to him, which seeks a money judgment for breach of the joint venture agreement, George L. Bailey, III, interposes the affirmative defenses of laches and statute of limitations.
In its final decree, the trial court declared that the plaintiffs-Tucker are entitled to have the mortgage declared satisfied, that defendants-Bailey must specifically perform the contract for the sale of real property, and that plaintiff John H. Tucker is entitled to a money judgment against defendant George L. Bailey, III, in the amount of $38,633.82.
Separate motions for new trial by both sets of defendants were overruled, and both sets of defendants have taken separate appeals to this Court on the one record. After a careful consideration of the issues raised and arguments made, we affirm.
The circumstances from which this cause arose are as follows. When the father of George L. Bailey, III, died intestate, a 98acre tract of land which the father had owned, passed to all of the named defendants, except Patricia A. Bailey, wife of George L. Bailey, III. In 1962, plaintiff John H. Tucker and defendant George L. Bailey, III, ("Bailey") executed a joint venture agreement for the purpose of developing the Bailey family's 98-acre tract as a residential subdivision. Tucker and Bailey then purchased the tract from the mortgagee-defendants. It appears that the agreed consideration for the land was a $15,000.00 cash down payment, and a $147,000.00 promissory note (at no interest) secured by a real estate mortgage on the 98 acres. [The mortgagee-defendants also contend that they received an unsecured $34,000.00 promissory note as consideration. Tucker does not concede there is any evidence of such note.]
Tucker and Bailey along with one Aaron Bailey were the sole stockholders in Glen'll, Inc., which operated a trailer park. In April, 1964 Tucker and wife and Bailey and wife allegedly executed a written contract by which Tucker transferred all of his shares of Glen'll, Inc. stock to George L. Bailey, III, in exchange for the Baileys' promise to convey to the Tuckers, in an improved and unencumbered state, the Baileys' interest in the last 60 lots to be sold in the subdivision. Tucker and Bailey proceeded with the development of the land until about 1965. Since that date it does not appear that there have been any dealings between Bailey and Tucker with regard to the "joint venture."
In 1972, the mortgagee-defendants threatened foreclosure, and Tucker brought an action in December, 1972, to enjoin them. By agreement of the parties, that action was dismissed without prejudice and the instant action for declaratory judgment was filed January 16, 1973.
The primary complaint of the mortgagee-defendants on this appeal is that the evidence is insufficient to support the trial court's conclusion that the amount of the mortgage, $147,000.00 has been paid in full.
Prior to trial, the Tuckers formally requested the mortgagee-defendants to produce all papers reflecting credits on the mortgage indebtedness. Rather than produce any records, the mortgagees filed a "RESPONSE TO MOTION TO PRODUCE". *845 in which they set forth the amount each individual had received. The amounts totaled $142,880.00. This response was later amended by "AMENDED RESPONSE TO MOTION TO PRODUCE," lowering the amount to $125,673.04, and setting forth in some detail the date and amounts of payments. [The mortgagee-defendants claimed the original amount erroneously included the down payment of $15,000.00 they had received.] In the "AMENDED RESPONSE" the mortgagee-defendants also stated that, as additional consideration for the land, they had received an unsecured promissory note for $34,000.00 and that when payments were received, the amounts were applied first to the unsecured note and then to the mortgage. [At trial, the mortgagee-defendants filed a second "AMENDED RESPONSE" and reduced the total amount received even further to $111,903.04 (excluding down payment). The court rejected this document because it held that it was untimely filed.]
Tucker stipulated that $140,673.04 (shown in the "AMENDED RESPONSE") was correct with "respect to the dates that are supplied." [Tucker included therein $15,000 down payment.]
Tucker testified that he agreed with the amount shown by the first "AMENDED RESPONSE" to have been paid insofar as it went ($125,673.04). Tucker then introduced into evidence ten checks, totaling $16,350.00, which he claimed were not reflected in the "AMENDED RESPONSE." Tucker also testified that he and George L. Bailey, III, conveyed two lots (worth $16,000.00 and $3,700.00, respectively) to two of the mortgagees as part payment on the indebtedness. Thus, Tucker testified that, exclusive of the $15,000.00 down payment, he and George L. Bailey, III, had paid the mortgagee-defendants more than $147,000.00, the amount of the mortgage.
None of the defendants testified.
In addition to their contention that the evidence as a whole is insufficient to support the decree, the mortgagee-defendants also raise the following specific issues for decision by virtue of their assignments of error and arguments addressed thereto: A. Whether or not Tucker, having relied on the amounts stated in the "AMENDED RESPONSE" to the motion to produce, is bound by the rest of the "AMENDED RESPONSE" which states that the amounts received were first applied to the satisfaction of an unsecured promissory note; B. Whether or not Tucker, as co-mortgagor of Bailey and co-joint venturer in the development of the mortgaged property is bound by Bailey's admission of default on the mortgage which is contained in Bailey's answer to the cross claim of the mortgagee-defendants; C. Whether or not Tucker's testimony, that he paid by check the amount he claims to have paid on the mortgage indebtedness, is competent evidence of payment, when not all the canceled checks themselves were produced and admitted in evidence; D. Whether or not Tucker's testimony, as to the amount of credit on the mortgage debt he and Bailey were to receive for the two lots they conveyed to two of the mortgagee-defendants, is competent evidence.
If a debtor owes two different debts to the same creditor, one debt being secured and the other being unsecured, the debtor has the right, at the time of payment, to direct the application of the partial payments. However, if the debtor does not direct the application of his partial payments to one or the other of the debts, then the creditor, at the time of payment, may elect to apply the payments to either of the debts. If neither debtor nor creditor expresses an election, it is presumed that the credit is to be applied most beneficially to the creditor, that is, to the most precarious debt or to the one least secured. Lee v. Southern Pipe and Supply Company, 283 Ala. 37, 214 So. 2d 313 (1968).
*846 Thus, mortgagee-defendants contend that even if Tucker and Bailey paid the amounts testified to by Tucker, the mortgage debt has not been paid in full because the total of the payments does not equal the sum of the mortgage debt and an unsecured note. This argument, however, assumes the existence of an unsecured note other than the mortgage debt, subject of this suit.
The only evidence as to the existence of an unsecured note is contained in one part of the mortgagee-defendants' first "AMENDED RESPONSE" to Tucker's motion to produce.
By the use of other parts of the mortgagee-defendants'"AMENDED RESPONSE," Tucker offered proof, apparently to the satisfaction of the trial judge, that he and Bailey had paid the amounts therein stated to the mortgagee-defendants. Tucker also offered proof to the trial judge that, besides those amounts, he and Bailey made additional payments and that the total of all payments was sufficient to satisfy the mortgage.
The mortgagee-defendants contend that when Tucker used those parts of the "AMENDED RESPONSE" which were favorable to him, he became conclusively bound by the statement in the "AMENDED RESPONSE" that there was an unsecured note and that payments were applied first thereto. We cannot agree.
None of the mortgagee-defendants testified about the existence of the note. Tucker was not asked on cross-examination about the note. The note was not produced at trial and was not offered in evidence.
The mortgagee-defendants never offered into evidence their "AMENDED RESPONSE" which referred to the note. In fact, there is no indication that the reference in the "AMENDED RESPONSE" as to the existence of the note would be considered except the trial judge's statements (during trial when the "AMENDED RESPONSE" was offered into evidence by plaintiffs-Tucker)"It's in the record," and "It's a part of the record."
The trial judge did not make any "findings" pursuant to Rule 52, A.R.C.P. When the trial judge does not make express findings of fact, this Court must nevertheless assume that the trial judge found facts which would support his decree, unless such a finding would be clearly erroneous and against the great weight and preponderance of the evidence. Grund v. Jefferson County, 291 Ala. 29, 277 So. 2d 334 (1973).
Tucker did not contradict the statement in the "AMENDED RESPONSE" as to the existence of the unsecured note no doubt because the mortgagee-defendants made no mention of it during the trial.
Giving mortgagee-defendants the benefit of the doubt and assuming that the references in the "AMENDED RESPONSE" to the unsecured note were sufficient to put into evidence the question as to the existence vel non of the note, we cannot, under the circumstances of this case and our rules of review, say that the trial court erred in not crediting payments on the unsecured note. To the contrary, it would appear that the court found the note did not exist. Thus, mortgagee-defendants' argument that Tucker's and Bailey's payments were first applied to an unsecured debt must fail.
In their answer to the mortgagee-defendants' cross-claim against them, George L. Bailey, III, and wife, admitted that the mortgage was in default. It is contended by the mortgagee-defendants that the Baileys' admission was admissible in evidence against Tucker and precluded proof by Tucker to the contrary in his action against the mortgagee-defendants to have the mortgage declared satisfied, citing *847 Hutchins v. Childress, 4 Stewart & Porter 34 (1833) and 29 Am.Jur.2d, Evidence & 699, p. 756.
In Hutchins v. Childress, supra, the general rule is stated:
Of course, if it be shown that the admission serves the interest of the partner making the admission and disserves the interest of the partnership and other partners, the admission is not admissible against the partnership or non admitting partners. 2 McElroy, Law of Evidence in Alabama, § 195.07(2)(b).
The mortgage in the instant case was the subject of the joint venture agreement between Tucker and Bailey. It was established that Tucker still regarded the joint venture agreement to be in effect. With respect to matters growing out of a joint venture agreement the above stated rule and exceptions thereto would apply to joint venturers as well as partners. Murphy v. Dees, 293 Ala. 529, 307 So. 2d 1 (1975).
Bailey's admission of default was contained in his separate answer to the cross-claim filed against him by the mortgagee-defendants. The admission was never offered in evidence against Tucker on Tucker's separate claim against the mortgagee-defendants nor against Tucker on the mortgagee-defendants' counterclaim against him. Neither did the mortgageedefendants move for judgment on the pleadings or object to the admission of Tucker's evidence of payment on the ground that the issue was precluded. [The effect to be given to Bailey's admission as to Tucker's complaint was not even raised on motion for new trial.]
In short, the mortgagee-defendants have preserved nothing for our review. Had the mortgagee-defendants properly raised the matter in the trial court, Tucker, in accord with the exception to the general rule, would have had the opportunity to show that George L. Bailey, III, being the son of one of the mortgagee-defendants and brother of the others, would benefit by a foreclosure. (Although Tucker does contend that the evidence shows that Bailey would benefit by the foreclosure by virtue of his close family ties with the mortgagee-defendants, and for other reasons, it is not necessary that we decide these matters in view of our conclusion that the issue is not presented for our review.)
In order to establish payment, Tucker testified he agreed with the amounts shown in the mortgagee-defendants' "AMENDED RESPONSE" and that he paid these amounts and other sums by check. It is contended by mortgagee-defendants that Tucker's testimony is incompetent because the checks themselves are the "best evidence" of payment, citing Fletcher v. Riley, 169 Ala. 433, 53 So. 816 (1910).
The cited case does not stand for this proposition but merely sets forth the rule that if a witness has no personal knowledge as to the payment of a debt, independent *848 of what is evidenced by a written instrument, the witness may not testify as to the contents of the instrument, the instrument itself being the "best evidence" of what it contains.
Contrary to the mortgagee-defendants' contention, this Court said in McCord v. Bridges, 209 Ala. 529, 96 So. 432 (1923), viz.:
Tucker testified of his own knowledge that he had paid certain amounts by check to the mortgagee-defendants on the mortgage. As stated in McCord, supra, such testimony may be of doubtful probative force, but such goes to the weight to be given the testimony and not its competency. Moreover, Tucker's testimony was corroborated by the "AMENDED RESPONSE" of the mortgagee-defendants and there is no contention that the checks given were not finally paid by the bank upon which they were drawn.
Once again, we are confronted by the much beleaguered but little understood "best evidence rule" which is usually invoked with the shorthand phrase, "the instrument speaks for itself."
Tucker testified that he and Bailey conveyed two lots to two of the mortgagee-defendants as partial payment on the mortgage indebtedness. The deeds of conveyance were received in evidence and Tucker testified that the grantees had taken possession. The deeds recited a consideration of $10.00 and other valuable consideration. Tucker then testified, over objection, that the two mortgagee-defendants, who received the deeds, had agreed that Tucker and Bailey would receive $19,700.00 credit on the mortgage in consideration for the conveyances. The sole ground of objection argued on this appeal is that the deed tax stamps on the two deeds are the "best evidence" of the agreed consideration. The only authority offered in support of the ground of objection is Tit. 51, § 618, Code of Alabama 1940 (Recompiled 1958) which simply provides that a tax of fifty cents per five hundred dollars' value shall be collected on the filing of deeds which state only nominal consideration. [The deed tax stated to have been paid on each of the deeds is fifty cents.] We find mortgagee-defendants' argument to be without merit.
The issue to be proved was not the "value" of the lands conveyed but the agreed consideration for the conveyances to be credited on the mortgage.
If the receipt of valuable consideration is recited in a deed, the recital is merely prima facie evidence of the full agreed consideration and parol evidence is admissible to show that other and additional valuable consideration was to be received by the grantor such as additional money or credit on a pre-existing debt or mortgage. See cases collected at 9 Ala.Dig., Evidence, Key No. 419(1)-(6). Thus, Tucker's testimony was competent and not in violation of the "parol evidence" rule or "best evidence" rule.
We have carefully examined the record in light of the specific errors assigned and argued and find no reversible error therein.
Again, we reiterate our oft stated rule that when the evidence is heard ore tenus, the decree of the trial court must be affirmed if fairly supported by the evidence *849 under any reasonable aspect, regardless as to what the reviewing court's view of the evidence might be. Lott v. Keith, 286 Ala. 431, 241 So. 2d 104 (1970). Putting the rule differently, the decree of the trial court, which heard the evidence orally, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9 (1974).
We have examined the entire record in the light of our rules of review and find that the decree is supported by the evidence. The judgment against the mortgagee-defendants is affirmed.
As to the parts of the decree which require Bailey to specifically perform the alleged contract for sale of real property, and to pay Tucker his share of the joint venture proceeds, the issues are these: I. Whether or not there was competent evidence to support specific performance of a contract for the sale of real property in that the alleged written contract was not offered in evidence, or alternatively stated, whether or not Tucker laid the proper predicate for his oral testimony as to the terms of the written contract; II. Whether or not the action for specific performance is barred by laches and/or the six-year statute of limitations; III. Whether or not the action by Tucker against Bailey for the joint venture proceeds is barred by the six-year statute of limitations.
Tucker testified that when he signed the alleged contract for the sale of realty, he was familiar with its provisions, and that he saw his own wife, Bailey, and Bailey's wife sign the contract. The signing took place in April, 1964, in the offices of Cloud, Berry, and Ables, who at the time represented both Tucker and Bailey, but who now represent the mortgagee-defendants. To further substantiate his claim that such a written contract was executed, Tucker offered in evidence a bill from Cloud, Berry, and Ables for "Preparation of Agreement between John H. Tucker and wife, and George L. Bailey and wife, nullifying April, 1964, agreement * * *." The "nullifying agreement" was also offered in evidence. The latter agreement clearly refers to a real-estate contract executed by Tucker and wife and Bailey and wife on April 13, 1964. [The nullification of the April, 1964, contract was expressly conditioned on certain events taking place which Tucker testified never occurred.]
Tucker also testified that he received neither the original nor a copy of the contract but that it was kept by Cloud, Berry, and Ables.
In response to motions to produce, defendants-Bailey and their attorneys and the mortgagee-defendants and their attorneys, Cloud, Berry, and Ables, denied having the original, or even a copy thereof.
After laying this predicate, Tucker was allowed to testify to the terms and contents of the written contract over the objection of Bailey's attorney.
The case of Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So. 2d 814 (1968) is dispositive of this issue and supports the trial court's admission of parol evidence to prove the terms of the written contract.
In Wiggins, supra, it was held that the following facts must be established to the satisfaction of the trial court in order to justify the admission of parol evidence as to the contents of a written instrument:
The Court also quoted with approval from 1 Greenleaf on Evidence, § 558, as follows:
From the foregoing, it is clear that Tucker laid the proper predicate for the admission of parol testimony as to the terms of the written contract. He exhausted all the means of discovery which were available to him.
The alleged written contract for the sale of the realty was executed in April, 1964. The action was not brought until January, 1973. Bailey contends that action on the contract is barred by laches or the six-year statute of limitations applicable to promises in writing not under seal. Tit. 7, § 21, Code of Alabama 1940 (Recompiled 1958).
Even before the merger of law and equity by virtue of Rule 1, A.R.C.P., the various statutes of limitation were applicable to both actions at law and in equity. Tit. 7, § 18, Code of Alabama 1940 (Recompiled 1958).
Under the new rules, it appears clear that the various statutes of limitation are to be applicable to all actions seeking the type of relief heretofore granted only by courts of equity. Before the adoption of A.R.C.P., the doctrine of laches was also available as a defense to the granting of equitable relief independently of the operation of the statutes of limitation. McCary v. Robinson, 272 Ala. 123, 130 So. 2d 25 (1961). [Because it is not necessary to the result we reach, we will not consider whether this rule has been changed, but will assume that laches, independent of the statute of limitations, is also available as a defense as it was under prior practice.]
It is not disputed that the contract at issue was signed more than six years before the instant suit was filed. This, however, is irrelevant. A statute of limitations does not begin to run when a contract is consummated but when the contract is breached and a cause of action therefor accrues. Tit. 7, § 18, Code of Alabama 1940 (Recompiled 1958). Tucker testified that, by the terms of the contract, Bailey was not bound to convey his interest in the land to Tucker until the mortgage on the land had been satisfied. Formal satisfaction did not occur until the decree in the instant case was rendered against the mortgagee-defendants. If it is regarded that Tucker should have taken action within six years after the last payment on the land was made, the suit for specific performance is still not time barred. The evidence shows that one of the conveyances from Tucker and Bailey to one of the mortgagee-defendants in part payment on the mortgage was made on July 8, 1967. This appears to be the last payment. Suit was filed within six years *851 thereafter in January, 1973. Thus, under either view, Bailey's contention that the action is barred by the six-year statute is not supported by the evidence.
When laches in addition to the statute of limitations is raised but the action is not barred by limitations, mere delay is not sufficient for the defense of laches, but special facts which make the delay culpable must appear. Southern States Fire Ins. Co. v. Kelley, 186 Ala. 259, 65 So. 328 (1914); Gulf Red Cedar Co. v. Crenshaw, 138 Ala. 134, 35 So. 50 (1902).
For the doctrine of laches to be applicable, it must appear that harm or prejudice has resulted from the delay. McCary v. Treadway, 289 Ala. 334, 267 So. 2d 410 (1972). The burden of showing prejudice when not shown on the face of the complaint rests on the one invoking laches. Blythe v. Enslen, 219 Ala. 638, 123 So. 71 (1929).
From an examination of the record we cannot say that the trial court erred in failing to find that Bailey has been prejudiced or changed his position because of the delay. To the contrary, it appears that the status quo has been maintained.
Bailey also contends that the action by Tucker against Bailey for Tucker's share of the joint venture proceeds is barred by the six-year statute of limitations inasmuch as the last transaction involving the joint venture occurred more than six years before suit was filed. However, the six-year statute is simply not applicable. The joint venture agreement is in evidence, is in writing under seal, and is therefore subject to the ten-year statute of limitations. Tit. 7, § 20 Code of Alabama 1940 (Recompiled 1958). The action was filed less than ten years after the last transaction.
What we have already said with regard to laches is also applicable to the accounting sought by Tucker.
We have examined the entire record in light of the errors assigned and substantially argued in brief and have found no reversible error.
Let the judgments stand affirmed.
Affirmed.
HEFLIN, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | May 22, 1975 |
cce1b564-7462-4c3a-bfb5-fc1406b35d51 | Twine v. Liberty National Life Insurance Co. | 311 So. 2d 299 | N/A | Alabama | Alabama Supreme Court | 311 So. 2d 299 (1975)
Charles A. TWINE, Jr.
v.
LIBERTY NATIONAL LIFE INSURANCE CO.
SC 1022.
Supreme Court of Alabama.
April 10, 1975.
*300 J. Richard Carr, Gadsden, for appellant.
Hubert Burns, Gadsden, Ira L. Burleson, Ralph B. Tate, Birmingham, for appellee.
MERRILL, Justice.
This appeal is from a judgment granting defendant's motion for summary judgment. We affirm.
Plaintiff is engaged in the funeral home business in Cherokee County and alleged that he "has been injured or damaged, directly or indirectly, by an unlawful trust combine or monopoly created and operated by the defendant." The amended complaint contained four claims. Defendant filed a motion to dismiss under Rule 12(b)(6) ARCP. Prior to a hearing on or response to this motion, defendant amended *301 it with supporting affidavits and other documents and asked that the amended motion be treated as one for summary judgment pursuant to the provisions of Rule 12(b) and 56 ARCP. After oral argument on the motion, the trial court determined that defendant's motion should be granted unless the plaintiff, within ten days from the date of the ruling, filed additional pleadings or counteraffidavits to overcome or refute the matters presented in support of the amended motion.
Plaintiff filed his affidavit. The court overruled the motion to dismiss on May 10, 1974. Defendant filed a motion to set aside the May 10th order. On July 25, 1974, the court, after a hearing, rescinded the May 10th order, and granted defendant's motion for summary judgment.
Plaintiff says that the action was brought under Tit. 7, § 124, Code 1940, which (as stated in brief) "provides that any person, firm or corporation can bring a suit for damages caused by an unlawful trust, combine, or monopoly."
The alleged unlawful activity consisted of restrictions on trade contained in funeral policies and vault policies. Provisions from each type policy are quoted in the complaint, but there is no material difference except as to purpose, and only the contested paragraph in funeral policies is quoted here:
The contention is that the policies should not be restricted to authorized dealers.
This is required by statute. The Alabama Insurance Code, Acts of Alabama 1971, p. 709, and listed in the 1958 Recompilation as Tit. 28A, §§ 1-759, provides in Chapter 17, Burial Insurance Policies, as follows:
And § 398 provides in pertinent part:
The contested paragraph in the policy quoted supra shows that it contains substantially the required provisions. The affidavit of William T. Graves, Vice President of Liberty National, states that policies containing the "restraint of trade" provisions were approved by the Commissioner of Insurance of Alabama. This was not denied or controverted by plaintiff's affidavit. The affidavit of Charles Healey, President of Brown-Service Funeral Homes Company, Inc., stated that the "authorized *302 funeral director" required under the policy were those independent funeral directors throughout the State of Alabama with whom Brown-Service, a whollyowned subsidiary of Liberty National, has contracted to provide the services under such policies. This fact was not denied by plaintiff.
There can be no legal claim for damages to the person or property of any one except as it follows from the breach of a legal duty. Pickett v. Matthews, 238 Ala. 542, 192 So. 261, and whatever damage results from doing that which is lawful does not lay the foundation of an action. Randle v. Payne, 39 Ala.App. 652, 107 So. 2d 907, cert. denied 268 Ala. 697, 107 So. 2d 913.
In Alabama Power Co. v. Alabama Electric Cooperative, 394 F.2d 672 (5th Cir.), cert. den. 393 U.S. 1000, 89 S. Ct. 488, 21 L. Ed. 2d 465, the court stated that "The Supreme Court has repeatedly held that, `where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the [Sherman] Act can be made out. United States v. Rock Royal Co-op, 307 U.S. 533, 59 S. Ct. 993, 83 L. Ed. 1446, Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315.' Eastern R. Conf. v. Noerr Motors, 1961, 365 U.S. 127, 136, 81 S. Ct. 523, 529, 5 L. Ed. 2d 464." "These decisions rest upon the fact that under our form of government the question whether a law of that kind should pass, or if passed be enforced, is the responsibility of the appropriate legislative or executive branch of government so long as the law itself does not violate some provision of the Constitution." Noerr Motors, supra.
Here, defendant did no more than the statute required. There is no merit in Claim One.
The unlawful activity charged in Claim Two was price fixing. Plaintiff charged that the defendant owned Brown-Service, and had contracted with Brown-Service to service its burial insurance policies; that Brown-Service had contracted with plaintiff's competitors in Cherokee and surrounding counties, and a copy of the contract with his competitors was attached as Exhibit A.
Since the only affidavit supporting plaintiff's complaint was his own, we copy the body of the affidavit in which he said:
It is an accepted principle of business law that any seller may determine the price at which he will sell his own product or service and any buyer may determine what he is willing to pay for any product or service.
The distinction between a purchaser and seller agreeing upon the price that they will pay or sell, and the price fixing which is condemned by the antitrust laws, is pointed out in Fagan v. Sunbeam Lighting Co., 303 F. Supp. 356, 360 (D.C.Ill.1969):
The contract attached by plaintiff as an exhibit to sustain this allegation of price fixing is simply the form of an agreement used by Brown-Service to purchase the *304 services of independent funeral directors and sets out the charges which Brown-Service will pay to the funeral director providing such services. This contract does not in any way fix the price which the plaintiff or any other funeral director may charge others for rendering funeral services. It expressly provides that a funeral director may furnish or contract to furnish funeral merchandise and services for any other person, firm or corporation. It expressly provides that the funeral director may establish prices for his funerals and vaults sold to others.
It is clear that the contract by which Brown-Service acquires the services of a funeral director does not fix the price at which the funeral director may sell his services to others, and it does not fix the price at which plaintiff may sell his services. It is simply a contract by which Brown-Service purchases the services of a funeral director and agrees upon the price to be paid therefor. This type of transaction is not condemned by the antitrust laws and is not price fixing within the meaning of the antitrust laws.
It is true that the complaint in Claim Two uses the words price fixing, but the exhibit clearly shows no price fixing. An exhibit made the basis of a cause of action or defense and contradicting the averments of the pleading of which it is a part will control such pleading. Waugaman v. Skyline Country Club, 277 Ala. 495, 172 So. 2d 381; Ivey v. Wiggins, 271 Ala. 610, 126 So. 2d 469.
There was no genuine issue of material fact as to Claim Two.
The pertinent part of the claim follows:
The affidavits show that plaintiff was offered a contract to become an authorized funeral director but he did not enter into the contract and he concedes that he is not an authorized funeral director.
This contention was answered in Hunter v. Brown-Service Funeral Co., 241 Ala. 25, 200 So. 869. There, the policy named two "authorized undertakers." One of them, the plaintiff Hunter, terminated his relationship with Brown-Service and was not an authorized undertaker at the time of insured's death. The family of the policy holder took the policy to Hunter and he provided the services. The insurance company refused to pay him and he sued. The trial court rendered judgment for the company and this court affirmed, stating:
In the instant case, plaintiff refused to become an authorized funeral director and insofar as Liberty National is concerned, he was a stranger to the contract and can take no advantage therefrom or enforce any legal complaint thereon.
The rule is that one not a party to, or in privity with a contract, cannot sue for its breach; and a stranger to a contract can take no advantage of a breach of any condition of the contract. Watson v. Mills, 275 Ala. 176, 153 So. 2d 612.
Claim Three is without merit. The statute required the policy to name an authorized funeral director and no liability attached unless the policy was presented to an authorized funeral director.
The pertinent part of this claim alleges:
This is another instance where the exhibits contradict and control the pleading. One of the "Standards of Acceptability of Contract Funeral Directors," a part of Exhibit A which was attached to plaintiff's Claims Two, Three and Four reads: "9. The funeral director must be of the Negro race." Also, in paragraph 3 of the exhibit, which was the contract which defendant urged plaintiff to accept in order to become an authorized funeral director, the statement appears that the policies are issued "upon the lives of persons of the Negro race under which the benefits are payable in merchandise and service incident to burial."
Charles Healey's affidavit states that Brown-Service has entered into funeral service contracts "with 77 black funeral directors throughout the State of Alabama." Plaintiff's affidavit, which was filed after defendant's affidavits, neither denies this statement nor does his affidavit support the allegation that Brown-Service refused to pay him because he was a black man.
Allegations contained in a complaint do not create an issue against a motion for summary judgment supported by affidavits. Smith v. Mack Trucks, Inc., 505 F.2d 1248 (9th Cir.); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569; Tripoli Co. v. Wella Corp., 425 F.2d 932 (3rd Cir.), cert. den. 400 U.S. 831, 91 S. Ct. 62, 27 L. Ed. 62.
In his affidavit, plaintiff refers in paragraphs 8, 9 and 13 to $300.00 funerals being worth only $95.00 and $600.00 funerals worth only $150.00. These figures come from paragraph 12 of Exhibit A which was the proferred contract which plaintiff did not accept. Paragraph 12 reads in pertinent part:
*306 This is the schedule of payments to the funeral director for his services. The affidavits make it clear that Brown-Service, "The Homes Company," furnishes the funeral merchandise such as the casket and the funeral clothing. Then it pays the funeral director for the services listed in the policies, such as embalming and preparation of the body, a place where memorial services may be held, assistance in conducting the services and transportation of the remains of the deceased to the place of interment. The schedule listed in paragraph 12, supra, is the amounts paid for services and does not include the merchandise.
We think plaintiff has stated his real complaint in brief when he states that if he should enter into the proferred contract he gets paid according to their schedule "rather than what he would normally charge or would like to charge for his funeral services." (Emphasis supplied.)
In Ex parte Rice, 258 Ala. 132, 61 So. 2d 7, a case involving a charge of monopoly, this court said:
To the same effect are Kinnear Weed Corp. v. Humble Oil & Refining Co., 214 F.2d 891 (5th Cir.), cert. den. 348 U.S. 912, 75 S. Ct. 292, 99 L. Ed. 715 (an antitrust action); Baim & Blank v. Warren-Connelly Co., D.C., 19 F.R.D. 108, and Alexander v. Texas Company, 149 F. Supp. 37 (D.C., La.).
Plaintiff cites and discusses Battle v. Liberty National Life Ins. Co., 493 F.2d 39. That was a class action and, having been dismissed on motion, the judgment was reversed. There, the complaint and exhibits consumed over 100 pages, and the appellate court held the complaint good as against a motion to dismiss. Here, the matter went to summary judgment based on supporting affidavits and an exhibit to a simple four-claim complaint.
Summary judgment was the proper method of disposing of this case and the entry of such judgment was not reversible error.
Affirmed.
BLOODWORTH, MADDOX, JONES and ALMON, JJ., concur. | April 10, 1975 |
846ee6f5-6a19-4a93-a7ed-8331ceabca4a | Crisco v. Crisco | 313 So. 2d 529 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 529 (1975)
Hilda M. CRISCO
v.
Melvin F. CRISCO.
SC 1081.
Supreme Court of Alabama.
May 8, 1975.
Rehearing Denied June 19, 1975.
*530 Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
Edward L. Hopper, Huntsville, for appellee.
JONES, Justice.
The facts giving rise to the dispositive issue presented on this appeal are essentially undisputed. Melvin Crisco left his household and his wife, Hilda Crisco, in early November, 1971. On November 3, 1971, she filed a divorce complaint against him on the grounds of cruelty, which suit was personally served on the defendant November 10, 1971. Mr. Crisco returned home shortly thereafter where he stayed until December 17, 1972, when he again moved out. An interlocutory decree pro confesso was entered December 18, 1972, and a final divorce decree was rendered December 27, 1972. Two days thereafter Mr. Crisco was informed of the divorce decree and filed an application for rehearing January 9, 1973, which was originally set for hearing by order of the court February 7, 1973, and later continued to March 7, 1973, on which date the trial court lost jurisdiction of this cause.
Instead of prosecuting this direct attack on the final decree of divorce (the application for rehearing), Mr. Crisco filed a bill in the nature of a bill of review March 13, 1973. This new and independent action, collaterally attacking the final judgment of divorce, alleges in substance, as did his petition for rehearing, that he "was deceitfully and fraudulently led to believe by his wife that the divorce action commenced by her would not be prosecuted." His claim of fraud is further supported by the allegation that the parties had reconciled and resumed their marital relations to a point in time within two days of the granting of the interlocutory decree.
The bill also alleges that Mrs. Crisco practiced fraud on the court in that she failed, through her testimony in support of her bill for divorce, to inform the court *531 that she and her husband lived together from December, 1971shortly after the bill was filedto December 17, 1972shortly before the granting of the divorce decree. Such an allegation, which she was duty bound to make, says Mr. Crisco, would have constituted condonation of her alleged ground for divorcephysical crueltyand thus she fraudulently failed to disclose facts which, if revealed, would have constituted a legal defense to the relief sought.
The question presented is: Where the challenged final decree of divorce was rendered, motion for a new trial filed and subsequently abandoned, and a bill in the nature of a bill of review was filed all prior to July 3, 1973 (the effective date of ARCP), and where the trial was held and the final decree granting relief thereunder was rendered in June, 1974, did the trial Court err in assuming jurisdiction of this latter cause and in holding the former judgment null and void? We hold that, although unaffected by ARCP, Rule 60(b), the trial Court did not err in granting the relief sought by complainant in the bill in the nature of a bill of review. We affirm.
As already shown, Mr. Crisco filed an application for rehearing, the only method permitted in equity at that time, on the ground of fraud, seven days after he learned that the divorce decree had been rendered. By so doing, he called the attention of the court to the alleged fraud and, thus, the allegation of fraud was apparent on the face of the record.
But he was suddenly faced with a dilemma caused by a quirk in our law. The suit for divorce was in equity. The record would show authentic service, testimony, a decree pro confesso and a final decree, all in proper form and regular on the face of the record. The trial Court had thirty days from December 27, 1972, to set the decree aside because the decree was in the breast of the Court for that period. When the Court took no action in the thirty days, Mr. Crisco had only the application for rehearing on which to rely.
If the Court denied his application for rehearing, Mr. Crisco would have been at his row's end. Had he been permitted to make a motion for a new trial, and he could have in a case on the law side, he could have appealed the denial of the motion and argued any ground of the motion appeal. But his case was in equity, and Equity Rule 62 provided that "No appeal will lie from such order [granting or denying an application for rehearing] unless it modifies the decree." Since he had alleged the fraud in his application for rehearing, this charge was on the face of the record and he would be faced with a defense of res judicata in any further proceeding.
Not only was Mr. Crisco barred from appealing from an order denying the rehearing under Equity Rule 62, but this Court has held many times that such an order or decree is not subject to review on an assignment of error raising that point on appeal from the final decree. Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So. 2d 238; Appeal and Error,110, 870(6).
Mr. Crisco was, therefore, likely to be denied a right of appeal merely because the action was originally of an equitable nature and was tried in a court of equity which, at that time, had no such thing as a procedure for a new trial. It would be so until July 3, 1973 (the effective date of ARCP), when new trials could be sought whether in cases on the law side or in equitable matters. Rule 60(b).[1] We agree with appellant that Rule 60(b) is not applicable here.
*532 Mr. Crisco abandoned his application for rehearing and filed his bill in the nature of a bill of review on March 13, 1973. The filing of this independent action was his only chance of having the alleged fraud reviewed on appeal if the trial Court did not set aside the decree for fraud.
This situation cannot arise again because new trials now apply in what were formerly equity cases, but we are not willing to hold that the abandonment of the application for rehearing in this case under these circumstances is a bar to the filing of a bill in the nature of a bill of review when the fraud was apparent on the face of the record. We now proceed to discuss that feature of the case.
A court is not without jurisdiction to exercise its inherent power to set aside and vacate at any time a judgment because of supervening invalidity based on fraud practiced on the court by a party in the procurement of the judgment apparent on the face of the record. See Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803 (1962); Holden v. Holden, 273 Ala. 85, 134 So. 2d 775 (1961); McDonald v. Lyle, 270 Ala. 715, 121 So. 2d 885 (1960); Vaughan v. Vaughan, 267 Ala. 117, 100 So. 2d 1 (1958); Wheeler v. Bullington, 264 Ala. 264, 87 So. 2d 27 (1956); Capps v. Norden, 261 Ala. 676, 75 So. 2d 915 (1954); Robinson Co. v. Beck, 261 Ala. 531, 74 So. 2d 915 (1954), and Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116 (1943).[2]
A natural and logical extension of this proposition is the holding of this Court in Hartigan v. Hartigan, 272 Ala. 67, 128 So. 2d 725 (1961). There, in upholding the lower court's order vacating an original divorce decree, the rule was laid down to the effect that where jurisdiction of the court was fraudulently invoked by the parties and this fact became apparent in a subsequent proceeding, although neither party attacked the validity of the original decree which was regular on its face, the court is empowered ex mero motu to set aside that decree.
While the facts on which Hartigan is based are restrictive, the principle supportive of its holding is not so limited. That principle authorized the trial Judge in the instant case, upon discovery of facts not revealed until the filing of the petition for rehearing, to correct on its own motion the fraudulent use of the judicial process. We hold that the action of the trial Court vacating the original decree of divorce and ordering a new trial was both necessary and justified in the exercise of its inherent power to protect the integrity of its judicial proceedings.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] The distinction between the effect of the old system and the new rules is pointed out in the Committee Comments to Rule 60(b). For a clear and accurate summary of the purpose of Rule 60(b), see Judge Gewin's opinion in Bankers Mortgage Company v. United States, 423 F.2d 73, 77-79 (5th Cir. 1970).
[2] For an excellent discussion of the available remedies against a final judgment, see Morgan, Alabama Trials and Appeals, Chap. 5, p. 461 et seq. (1966). | May 8, 1975 |
65712636-aa31-44f9-8340-a2eaa9a5490b | Yelton v. State | 321 So. 2d 237 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 237 (1975)
In re Thomas William YELTON
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1351.
Supreme Court of Alabama.
September 25, 1975.
Rehearing Denied November 6, 1975.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for petitioner, the State.
No appearance for respondent.
SHORES, Justice.
The denial of writ in this case shall not be construed to mean that this court approves or disapproves all of the statements contained in the opinion of the Court of Criminal Appeals, 56 Ala.App. ___, 321 So. 2d 234.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | September 25, 1975 |
e8446e09-1f8f-431a-af31-6a083b7d02e1 | Clark v. State | 318 So. 2d 822 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 822 (1975)
In re Billy Don CLARK
v.
STATE.
Ex parte Billy Don Clark.
SC 1114.
Supreme Court of Alabama.
August 28, 1975.
*823 William M. Dawson, Jr., Birmingham, for petitioner.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, appellee-respondent.
HEFLIN, Chief Justice.
Petitioner was originally indicted for first degree murder, and was convicted of second-degree murder after he pleaded guilty to that lesser offense. But that conviction was reversed, Clark v. State, 48 Ala.App. 108, 262 So. 2d 310 (1972), for the trial judge's failure to advise defendant of his privilege against self-incrimination and of the maximum and minimum sentences that might be imposed upon him by reason of his plea of guilty.
On being re-arraigned he entered a plea of not guilty and not guilty by reason of insanity. He was convicted of first degree murder this time. The Court of Criminal Appeals reversed on grounds of double jeopardy, but, on the state's petition for certiorari, this court reversed the Court of Criminal Appeals, State v. Clark, 294 Ala. 485, 318 So. 2d 805 (1974). Upon remandment to the Court of Criminal Appeals that court affirmed the conviction.
Petitioner is again before this court and presents to us the question of whether the trial court abused its discretion in not allowing petitioner's counsel on voir dire to ask prospective jurors the following question: "Do any of you believe it would be necessary to bring medical testimony or a medical doctor or an expert in order to prove medical insanity?"
In the trial court the petitioner filed a motion for the employment of psychiatric experts for the purpose of having the defendant examined in connection with his plea of not guilty by reason of insanity. The trial judge held that an indigent defendant was not entitled to the court employment of psychiatric experts since there was no authorization or monies for such employment, but offered the assistance of such psychiatrists available at the University of Alabama Clinic at Tuscaloosa. The appellant was taken there and examined by medical assistants but not a psychiatrist. The trial court further offered to have the appellant committed to the State Hospital for the Insane for examination under the provisions of Title 15, Section 425 et seq., Code of Alabama, 1940 (1958 Recompiled).
The appellant does not raise the issue of whether or not an indigent defendant is entitled to court employment of psychiatrists to assist him with a defense of not guilty by reason of insanity so this court does not address itself to that issue, but reference is made to the motion and these facts as a background.
Petitioner's argument is that since he was indigent and could not afford or compel testimony from medical experts, then he would be prejudiced to have on the jury anyone who believed such evidence was necessary in order to accept his defense of insanity.
Title 30, Section 52, appears to give the defendant two rights: 1) "to examine jurors as to their qualifications, interest or bias would affect the trial of the case," and 2) the right, "under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict." The question proposed by petitioner *824 probably would not fit within the first category; but it does fit within the second.
This court has on occasion said that "the clear purpose of the statute is to limit the inquiry to matters that might probably bias the jurors in considering and determining the case." J. B. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805 (1930); Cox v. Roberts, 248 Ala. 372, 27 So. 2d 617 (1946). Nevertheless, there are many cases in which this court has said that the right given by the statute allows a "liberal" inquiry, Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941); a "wide latitude," Reeves v. State, 264 Ala. 476, 88 So. 2d 561 (1956); and that `[t]he right of inquiry under the statute is a broad right just so it is not exercised in bad faith or merely designed to prejudice the case," Cox v. Bennett, 250 Ala. 698, 36 So. 2d 86 (1948).
This court has held many times that under this section the right to question jurors remains within the sound discretion of the trial court. Fletcher v. State, 291 Ala. 67, 277 So. 2d 882 (1973); McRee v. Woodward Iron Co., 279 Ala. 88, 182 So. 2d 209 (1966); New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25 (1962), reversed on other grounds, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Aaron v. State, 273 Ala. 337, 139 So. 2d 309 (1961), cert. denied, 371 U.S. 846, 83 S. Ct. 81, 9 L. Ed. 2d 82 (1962); Roan v. Smith, 272 Ala. 538, 133 So. 2d 224 (1961); Sims v. Struthers, 267 Ala. 80, 100 So. 2d 23 (1958); Redus v. State, 243 Ala. 320, 9 So. 2d 914 (1942); Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941); Rose v. Magro, 220 Ala. 120, 124 So. 296 (1929).
Judge Cates of the Court of Criminal Appeals, in interpreting these cases, said this in Ward v. State, 44 Ala.App. 229, 253, 206 So. 2d 897, 920 (1967) (on rehearing):
This court denied certiorari, 281 Ala. 650, 206 So. 2d 922 (1967), but in doing so stated in a short opinion that its denial should not be taken as an approval of all the statements of law contained in Judge Cates' opinion. By our decision today, this court disapproves the quoted language insofar as it suggests that there can be no review of whether the trial judge abused his discretion in allowing or disallowing challenged voir dire examination. This court finds that such review is proper.
The State has filed a motion to quash the writ in this case. One of the grounds of the said motion is as follows:
This court feels that the State's motion should be granted. A review of the transcript reveals that there was no witness that expressed an opinion that the defendant was insane. The other evidence of this case pertaining to insanity of the defendant is indeed very weak. If there was any error in not allowing the question, it was error without injury. Therefore, the State is entitled to have the writ quashed.
Writ quashed.
MERRILL, MADDOX, JONES and SHORES, JJ., concur. | August 28, 1975 |
63bd130d-fb38-429c-b212-be935ae849d6 | Deese v. White | 313 So. 2d 166 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 166 (1975)
William E. DEESE
v.
Sammie Ray WHITE.
SC 923.
Supreme Court of Alabama.
May 1, 1975.
Rehearing Denied May 29, 1975.
*167 Benjamin H. Kilborn, Mobile, for appellant.
Collins, Galloway & Smith, Carl M. Booth, Guardian ad litem, Mobile, for appellee.
FAULKNER, Justice.
Mr. Deese filed a two count suit in the Circuit Court of Mobile County, seeking recovery for the wrongful death of his minor son. At the pretrial conference Deese struck the negligence count and the case was tried and submitted to the jury on the wanton count, and a plea of the general issue. The jury returned a verdict for the defendant. A motion for new trial was denied.
On appeal to this court, Deese filed seven assignments of error. The first assignment of error alleges that the court erred in overruling the motion for new trial. Assignments 2 and 3 allege error in giving defendant's written requested charges on wantonness. Assignments 4 and 5 allege error in the court's giving an explanatory oral charge on wantonness and refusing Deese's request for a full explanatory charge on the question of wanton misconduct. Assignments 6 and 7 allege error in allowing a witness to answer the following questions over objections:
This case is reversed and remanded for error in allowing an answer to the question set out in Assignment 7 over objection of Deese. We pretermit discussion of the other assignments of error because of the likelihood of a new trial.
The evidence shows that Sid Deese, a 16-year-old minor, was killed in an automobile accident which occurred about 8:30 P.M., August 18, 1972. Young Deese was a passenger in a car driven by Sammie Ray White, a minor. Young Deese and White were the only occupants of the car at the time of the accident. No other automobiles were involved. The collision occurred after sunset on a county highway when White lost control of the car and ran off the road. The car landed in a pine thicket striking a tree on the passenger's side. The impact fatally injured young Deese.
White drank three beers from 6:00 P.M. until the accident. He had just finished drinking a beer before the accident. White was trying to overtake a Dodge Challenger 383 Magnum driven by a friend. He denies he was drunk. Evidence of White's speed just prior to the accident was conflicting. A patrol officer estimated White's speed just prior to the accident at 70 to 80 miles per hour. An eyewitness testified White's speed was 65 to 70 miles per hour. White denied he was speeding. He testified he did not know how he lost control of his car.
Prior to the time of the accident White had another passenger in his cara 15-year-old male named Joseph Claude Stanley. White had met Stanley at the house of a person named Cecil Cole, who was working on Stanley's car. Stanley asked White to take him to his house which was two miles from the Cole house. White took Stanley to his housewaited 15 minutes for him to dressand then brought Stanley back to the Cole house. On the return they passed Cecil Cole going in the opposite direction. White let Stanley out of his car and turned around and was attempting to overtake Cole when he lost control of the car.
*168 The alleged error contained in Assignment 7 is shown in the interrogation of Stanley.
The witness further testified it was about two miles from Cole's house to the scene of the accident. He was told of the accident 10 minutes after it happened.
We interpret the question, "Did you notice anything wrong with the way Mr. White was driving at that time?" was asked to determine from the witness whether White was driving recklessly or speeding, or whether White was intoxicated. Whatever was meant, we are of the opinion the question called for evidence too remote in time and distance and place, and was therefore inadmissible. We are mindful of the fact that the admissibility of such evidence is largely discretionary with the trial court. Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So. 2d 810 (1971); Swindall v. Speigner, 283 Ala. 84, 214 So. 2d 436 (1968). In Swindall this court approved the admission of evidence of speed of the defendant's car a mile and a half from the scene of the accident. In Coker evidence of speed was properly excluded by the trial court where such evidence could have related to speed some 30 miles from the scene of the accident. In Whittaker v. Walker, 223 Ala. 167, 135 So. 185 (1931), evidence of speed of defendant's automobile at a point three-quarters of a mile from the scene of the accident was held to be properly excluded. In Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So. 2d 289 (1947), evidence of speed fourtenths of a mile from the collision was properly excluded. In Shirley v. Shirley, 261 Ala. 100, 73 So. 2d 77 (1954), this court said what occurs preceding an accident, such as speed of the car, etc., depends for its admissibility on the facts of each case.
Under the facts of this case in considering Assignment of Error No. 7, we are not convinced that the witness, Stanley, could say that be noticed anything wrong with White's driving when White let him out of his car some two miles from the scene of the accident. White had a different mission in mind after leaving Stanley at the Cole house. He wanted to overtake Cecil Cole driving a high-powered automobile. His method of operating his car could have been entirely different after leaving Stanley. How White drove from Stanley's house to Cole's house was too remote to show evidence of how he was driving at the time of the accident. The break in time and place rendered the evidence irrelevant and inadmissible.
Reversed and remanded.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | May 1, 1975 |
713c878b-dd83-4664-b25b-ec56c70d8076 | State Farm Mutual Automobile Ins. Co. v. Bradley | 309 So. 2d 826 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 826 (1975)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
Gerald E. BRADLEY.
SC 958.
Supreme Court of Alabama.
March 13, 1975.
*827 Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
Capell, Howard, Knabe & Cobbs and William D. Coleman, Montgomery, for appellee.
MADDOX, Justice.
This case involves the question of "stacking" uninsured motorist coverage under South Carolina law since the contracts of insurance were made there.
State Farm issued two automobile liability policies to one Bradley covering two vehicles. The cars were principally garaged in South Carolina, and since the policies were issued in South Carolina, we will apply that state's law.
Bradley, his wife and two children were injured in an automobile accident in Montgomery County, Alabama. The driver of the other vehicle was uninsured. One of Bradley's children died as a result of injuries received in the accident.
Bradley, his wife, his child who survived, and the administratrix of the deceased child's estate sued the uninsured motorist and obtained judgments as follows: Bradley, $70,000; his wife, $150,000; child, $30,000; and administratrix, $70,000.
Each policy provided uninsured motorist coverage of $10,000 per person and $20,000 per accident as required by South Carolina *828 law. Sections 46-750.32 and 46-750.33, Code of South Carolina, 1962. The accident happened on June 20, 1970. Notice was given to State Farm two days later. There was some evidence that State Farm knew as early as a week or two after the accident that damages would exceed $20,000.
State Farm paid $20,000 under one of the policies on April 24, 1972 (22 months after it received notice), but refused coverage under the other policy on the ground that an exclusion in the policy would prevent "stacking" the coverage contained in the other policy.[1] Bradley filed suit seeking to recover the "uninsured motorist" benefits available in the policy for the car which was not involved in the accident. The trial court found for Bradley, thereby permitting Bradley to "stack" this coverage. We affirm.
South Carolina seems to allow "stacking." In Boyd v. State Farm Mut. Auto. Ins. Co., 260 S.C. 316, 195 S.E.2d 706 (1973), the policyholder had two vehicles insured by State Farm under two separate policies. State Farm paid under one policy but denied benefits under the other policy, relying upon an "other insurance" exclusion clause. The Supreme Court of South Carolina permitted recovery up to the policy limits under both policies. The Court said:
In Hogan v. Home Insurance Co., 260 S.C. 157, 194 S.E.2d 890 (1973), a policy provision excluded relatives of the named insured residing in the same household from uninsured motorist coverage, except when they were occupying the vehicle described in the policy. The clause considered in Hogan was similar to the one in the case at bar. It provided:
"This endorsement does not apply:
(b) to bodily injury to an uninsured while occupying an automobile (other than an insured automobile) owned by the named insured or any relative resident in the same household."
The South Carolina court first admitted that in Willis v. Fidelity & Casualty Co. of *829 N. Y., 253 S.C. 91, 169 S.E.2d 282 (1969), it had upheld a provision in a liability policy excluding liability coverage to an insured while driving an automobile which was not described in the policy, but which was owned by the named insured or a member of the same household. However, the Court held that the exclusion clause in the uninsured motorist policy was void. It distinguished between liability and uninsured motorist coverage, as follows:
In Ferguson v. State Farm Mut. Auto. Ins. Co., 261 S.C. 96, 198 S.E.2d 522 (1973), the Court held that the insurer's liability under the uninsured motorist endorsement was not subject to reduction, under an exclusionary clause, by amounts received by insured's dependents under Workmen's Compensation Laws. The Court commented as follows:
In view of these holdings, we are of the opinion that South Carolina permits "stacking."
State Farm raises one further point: the trial court erred in allowing interest from the time State Farm received notice of the claim instead of from the date the insureds obtained judgments. Under the facts of this case, the trial court did not err in allowing interest. The trial court could have found that State Farm knew early that damages would exceed coverage under both policies. The intent of the parties to a release which was signed by State Farm and the insured involved a question of whether the insured waived recovery of interest. The trial court found the issue in favor of the insured.
State Farm contends its obligation to pay became fixed on the date judgments were obtained against the uninsured motorist. We disagree. State Farm recognizes that State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974), is authority for allowing interest from the time claim is made rather than from the date of judgment only. State Farm argues, however, that this decision puts companies in "an intolerable position" and, *830 in effect, asks this Court to review the holding in Reaves. We see no reason to change or modify the rule regarding interest set out in Reaves.
Affirmed.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.
[1] The exclusion clause read, in part:
"This endorsement does not apply * * * (b) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or any relative resident in the same household." | March 13, 1975 |
882769fe-aba8-4af2-9ad1-5c72f268e999 | McCaghren v. McCaghren | 312 So. 2d 384 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 384 (1975)
Forie B. McCAGHREN
v.
J. T. McCAGHREN et al.
SC 1064.
Supreme Court of Alabama.
May 1, 1975.
Chenault & Chenault, Decatur, for appellant.
Coleman, Cauthen & Bibb, Decatur, for appellees J. T. McCaghren and Selma McCaghren.
BLOODWORTH, Justice.
This is an appeal by appellant-plaintiff Forie B. McCaghren, from a final decree of the Circuit Court of Morgan County in an action to set aside a deed. We affirm.
The conveyance sought to be set aside by appellant, Mrs. Forie B. McCaghren, was executed by her as part of a divorce settlement with her husband, the appellee, J. T. McCaghren.
The primary questions of fact at trial were these: (1) whether or not Forie McCaghren was able to read, and thus understand, that the instrument she signed was a deed; (2) whether or not the attorney who prepared the deed for the parties explained to her, and she fully understood, what she was signing; and, (3) whether or not she was induced to sign the deed on the promise that she could live on the deeded property the rest of her life.
The testimony on these issues was in sharp conflict. Some testimony tends to *385 support Mrs. McCaghren's version of the facts. The whole of the testimony amply supports the trial court's conclusion that the execution of the deed was Forie McCaghren's voluntary act and not the result of any fraud.
An advisory jury empaneled by the trial court returned a verdict for the appellee, J. T. McCaghren. The trial judge, who saw and heard the witnesses testify, accepted the jury's verdict in rendering his final decree.
The final decree declares that the deed, conveying certain real estate to J. T. McCaghren, "was not induced by fraud, that it was executed and delivered by the said Forie McCaghren with full knowledge of its contents, and [that] it is a valid conveyance of all which it purports to convey [and that it was the] lawful conveyance of all rights, title and interest of all kinds" of Mrs. Forie McCaghren.
When the trial court accepts the findings of an advisory jury, appellate review is directed to the findings of the trial judge just as if the trial judge had heard the case unaided by the jury's advice. 9 Wright and Miller, Federal Practice and Procedure, § 2335.
We cannot substitute our judgment for that of the trial court as to the effect to be given conflicting oral testimony dealing with pivotal questions of fact. Johnson v. Godin, 279 Ala. 443, 186 So. 2d 722 (1966).
Inasmuch as the judgment of the trial court is supported by the evidence, the judgment must be affirmed. In view thereof, we pretermit consideration of appellee's motion to dismiss and appellant's motion to strike the motion to dismiss.
Affirmed.
HEFLIN, C. J., and FAULKNER, ALMON, and EMBRY, JJ., concur. | May 1, 1975 |
ce1558e7-6085-419a-b17d-b7cee7399c5c | West v. State | 312 So. 2d 52 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 52 (1975)
In re James Robert WEST, Jr.
v.
STATE.
Ex parte James Robert West, Jr.
SC 1203.
Supreme Court of Alabama.
April 24, 1975.
Reynolds T. Alonzo, Mobile, for petitioner.
MERRILL, Justice.
Petition of James Robert West, Jr. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in West v. State, 54 Ala.App. 647, 312 So. 2d 45.
Writ denied.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | April 24, 1975 |
98eea76b-67ed-4c86-87e4-b5d991c63abc | Simpson v. Alabama State Bar | 311 So. 2d 307 | N/A | Alabama | Alabama Supreme Court | 311 So. 2d 307 (1975)
Fred Bryan SIMPSON, District Attorney of the Twenty-Third Judicial Circuit
v.
ALABAMA STATE BAR and L. Drew Redden, President of the Board of Com'rs. of the Alabama State Bar, et al.
SC 867.
Supreme Court of Alabama.
April 10, 1975.
Jack Giles, Huntsville, for appellant.
William H. Morrow, Jr., Gen. Counsel, Alabama State Bar, Montgomery, for appellees.
John David Whetstone, Montgomery, for Ala. Dist. Attys. Assn., amicus curiae.
William J. Baxley, Atty. Gen., and George W. Royer, Jr., Asst. Atty. Gen., for the State of Alabama, amicus curiae.
SHORES, Justice.[*]
Appellant, Fred Bryan Simpson, filed a Petition for Writ of Prohibition in the Circuit Court of Montgomery County, naming the Alabama State Bar and certain *308 individuals, as officers thereof, as defendants.
The petition alleged that on the 30th day of July, 1971, the Grievance Committee of the Huntsville-Madison County Bar Association had found probable cause for believing that petitioner, Simpson, violated Rules A2. and A36. of the Rules Governing the Conduct of Attorneys in Alabama, which Rules provided:
The petition alleged that the Board of Commissioners of the Alabama State Bar did not have jurisdiction to discipline or disbar Fred Bryan Simpson, the District Attorney of the Twenty-Third Judicial Circuit. The petition asked that a hearing be set to determine whether the writ of prohibition should issue prohibiting the Board of Commissioners of the Alabama State Bar from proceeding any further with the disciplinary action agaist Simpson.
The facts were stipulated and the case was submitted to the Circuit Court of Montgomery County, which entered its order denying the writ.
The issue presented is whether a district attorney, while serving a term of office, can be disciplined by the Board of Commissioners of the Alabama State Bar for alleged violation of the Rules Governing the Conduct of Attorneys, which were in effect at the time of the commission of the act charged. The trial court, citing Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So. 2d 404 (1968), and Alabama State Bar ex rel. Steiner v. Aderholt, 283 Ala. 436, 218 So. 2d 149 (1969), held that:
This appeal is from that order.
It is the position of appellant that the Alabama State Bar Association did not have jurisdiction to discipline or disbar a district attorney under the Rules Governing the Conduct of Attorneys. He contends that his position is supported by the Constitution of Alabama and this court's decision in Alabama State Bar v. Moore and Alabama State Bar v. Aderholt, supra.
The Bar Association, on the other hand, contends that Moore and Aderholt are distinguishable from this case on two grounds:
1. The appellant is not charged with a purely official act (as was the case in Moore and Aderholt) but is charged with an extraofficial act, which could have been performed by any duly licensed attorney;
2. In Moore, disbarment was sought; while, in this case, the Bar Association is *309 not seeking to disbar Simpson, and is not seeking a suspension of his license, but, rather, is seeking discipline only consisting of a reprimand, public or private.
We agree with appellant that a district attorney was not subject to discipline by the Board of Bar Commissioners for alleged violation of the Rules Governing the Conduct of Attorneys which were in effect on July 30, 1971.
To qualify for the position of district attorney, one must be admitted to practice law in the State of Alabama. Constitution of Alabama 1901, Article 6, Section 167; Biennial Report of Attorney General, 1934-36, page 416; Opinion of the Justices, 279 Ala. 38, 181 So. 2d 105 (1965).
The Code prohibits a district attorney from practicing law except in the discharge of his duties. Tit. 13, § 229(12), Code of Alabama 1940, provides:
Constitution of Alabama 1901, Article 7, Section 174, prescribes a manner of removal from office of a district attorney.
The Bar Association was without authority to discipline or disbar a district attorney during the term of his office under the rules of conduct in effect at the time involved here. In that narrow sense, we perceive no difference between a judge and a district attorney. Both, by mandate of the Constitution, must be lawyers; neither may practice law while holding office. Until Amendment 317 to the Constitution of 1901, ratified January 27, 1972, we have found no procedure other than impeachment for dealing with misconduct of judges while serving a term of office. That amendment has been repealed and replaced by the procedure prescribed in Amendment 328, Section 156 et seq., of Article 6 of the Constitution, Pocket Parts, Code of Alabama Recompiled 1958, ratified December 27, 1973. Neither the procedure contained in Amendment 317 nor that presently found in Article 6, Section 156 et seq., was in effect at the time Moore and Aderholt were decided.
The Board of Bar Commissioners was created by the Legislature in 1923. Act No. 133, General Acts of Alabama 1923, page 100 (now Tit. 46, § 21, Code). The Board was created in aid of this court, which has the inherent jurisdiction to admit attorneys to the practice of law and to suspend or disbar them. The Rules Governing the Conduct of Attorneys administered by the Board of Bar Commissioners were subject to the approval of this court and can be termed court-made rules. Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933).
This court retains the power to approve or disapprove any rule adopted by the Board of Bar Commissioners governing the conduct of attorneys, to inquire into the merits of any disciplinary proceeding, and to take any action it sees fit in such matters. Ex parte Thompson, supra. But, at the time of the commission of the act complained of here, this court had not formulated or approved any rules governing the conduct of district attorneys, who are constitutional officers.
The question is whether the Rules Governing the Conduct of Attorneys, in effect at the time material in the instant case, were applicable to district attorneys for conduct while in office. All attorneys are officers of the court, exercising a privilege during good behavior; but, in Ex *310 parte Huie, 278 Ala. 330, 334, 178 So. 2d 156, 159 (1965), it was held:
Insofar as the conduct of a district attorney is concerned, the Board of Bar Commissioners was, at the time of the act complained of, without authority to institute or conduct disciplinary proceedings of any kind under the then existing rules governing conduct of attorneys, where the only method of removal then existing was that which the Constitution provided. Under those rules, district attorneys stood in the same posture as did judges at the time Moore, supra, was decided. At that time, this court held that the Constitution provided the sole method extant for removal of judges from office. There, we said:
We again emphasize that, at the time Moore, supra, was written, there was no procedure for disciplining or removing judges other than the constitutional procedure for removalimpeachment. That is no longer the case insofar as judges are concerned. A different procedure has now been formulated; and, in fact, this court now has under consideration, for its approval or disapproval, canons of judicial ethics.
We are compelled to note that, as of October 1, 1974, the Rules Governing the Conduct of Attorneys in Alabama were superseded by the Code of Professional Responsibility of the Alabama State Bar, which Code has been approved by this court. The question of whether a district attorney may be disciplined for violation of this Code of Professional Responsibility is not before us.
We do not mean to suggest that, by the holding herein, district attorneys should ever be held to a lesser degree of professional responsibility than is required of other attorneys or officers of courts. Nor do we condone the action of the district attorney in this case. All attorneys should maintain the highest ethical standards and owe to their profession and the office they hold the highest degree of professionalism. We simply hold that district attorneys were not subject to being disciplined as attorneys by the Board of Bar Commissioners for violation of the old rules governing the conduct of attorneys.
The Bar Association would distinguish the holding in Moore, supra, from this case, because the discipline sought to be imposed here is short of disbarment; and, hence, removal from office. We do not see the logic of that reasoning. Either the Bar could discipline a district attorney under the old rules for conduct while in office, or it could not. In fact, Moore, supra, held that the Bar was without authority to discipline or disbar a judge under those rules.
Further, as the trial court did, the Bar Association would make a distinction between "official" and "nonofficial" acts. The trial court found no authority in the statute prescribing the duties of a district *311 attorney for calling news conferences and concluded, therefore, that such act necessarily was a "nonofficial" act, for which the Bar could discipline. We disagree with this conclusion, and would make no distinction between "official" and "nonofficial" acts, insofar as the Bar Association's authority to discipline a duly elected or appointed district attorney under the old rules during his term of office.
The order appealed from is reversed and one is here rendered in favor of appellant.
Reversed and rendered.
All the Justices concur.
[*] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Title 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So. 2d 858. | April 10, 1975 |
0e25f749-c286-4a34-b3ea-1f4b78ea2871 | Mid-State Homes, Inc. v. Johnson | 311 So. 2d 312 | N/A | Alabama | Alabama Supreme Court | 311 So. 2d 312 (1975)
MID-STATE HOMES, INC., a corporation
v.
Robert L. JOHNSON.
SC 992.
Supreme Court of Alabama.
April 3, 1975.
Rehearing Denied May 1, 1975.
*313 R. A. Norred, Birmingham, for appellant.
James H. Tompkins, N. Pride Tompkins, Murray W. Beasley, Tuscumbia, for appellee.
EMBRY, Justice.
This appeal is from a judgment for $12,500 damages on a jury verdict. The action was submitted to the jury as one seeking damages owing to false representations and for money had and received. Code of Ala., Tit. 7, § 108; Form 11, Rule 84, ARCP.
The twenty-three assignments of error complain of: rulings admitting or excluding evidence; failure of the court to direct a verdict in favor of defendant; errors in the oral charge to the jury, error for failing to give written jury instructions requested by defendant, and a judgment contrary to the evidence and law, as well as excessive. The substantive question presented for review is, in fact, only one. Does the recognized principle of law: One who has been defrauded may either rescind *314 the transaction or affirm and sue at law, but may not do both, preclude recovery of considerations paid and other damages (including those punitive in nature), after "dissaffirmance" of the transaction? The circumstances of this particular case dictate an answer in the negative.
Plaintiff, Johnson, sold his farm in Florida in late 1971 and requested his sister Louise Jackson to locate property in Alabama for purchase by him. Several weeks later she located a residence, situated on four acres of land, known as the McClurg property. On the property was a "for sale" sign displaying a telephone number. Calling that number put her in touch with one Jerry Williams. She later met with Jerry Williams at the office of Jim Walter Homes in Muscle Shoals, Alabama. At a second meeting with Williams she gave him the Florida telephone number of her brother, Johnson. She remained in the presence of Williams while he read a sales contract to Johnson over the telephone. During that conversation the alleged misrepresentation was made:
It is apparent from the evidence concerning that conversation with Williams and with his sister, Johnson expected the right to immediate possession of the McClurg property. Obviously he relied on that statement when he instructed his sister to give Williams the money for the down payment or deposit. At the time Johnson did not know that on an earlier date one Harold Savage had purchased the McClurg property after its sale for unpaid taxes.[1] Savage went into possession following that purchase and made certain repairs to the dwelling house. At trial, in February 1974, Savage claimed continuous possession of the McClurg property from and after his purchase. A certificate of redemption from the tax sale was in evidence. On the face of that instrument it appeared that defendant Mid-State had redeemed the McClurg property almost one and onehalf years after Johnson filed suit against Mid-State. By the date of redemption Johnson had purchased other property for his place of residence.
Subsequent to making the down payment for Johnson Mrs. Jackson visited the McClurg property several times. She visited the property twice in the company of Johnson. After Johnson had returned to Florida, Mrs. Jackson was informed by their older brother (who lived near the McClurg property) that Savage disapproved of her coming onto the McClurg property. She passed this information on to Johnson. He returned from Florida and made efforts to communicate with Mid-State or Jim Walter Homes.[2] Ultimately he succeeded in talking with representatives of Jim Walter Homes. He was informed that as far as they were concerned he, Johnson, had possession of the McClurg property. He was told he could "move in." After Johnson purchased another residence, in which he was dwelling, he was visited by Savage. Savage stated that he, Savage, owned the McClurg property and was in possession.
*315 In its challenge to the sufficiency of the evidence to support the verdict and judgment Mid-State contends that Johnson had the burden to establish lack of possession by Mid-State. It asserts that Johnson failed to meet this burden.
Johnson says that representation was made to him, upon which he relied, of his right to immediate possession; that the tax sale prior to the representation belied the truth of such representation. Knowledge of the falsity of the representation, he says, is patent from the fact the delinquent taxes were owed by the mortgagor against whom Mid-State foreclosed, and obtained title, only by which it could give Johnson the right to immediate possession.
The evidence was sufficient to authorize the jury to find that the representation was made; was false, known to be false or recklessly made without knowledge; acted on by Johnson; and was of a material fact.
We are not here dealing with competing claims of title, rather a representation regarding right to possession. With this in mind the admissibility of the statement of Mrs. Jackson in response to a question asked her by Mid-State becomes evident.
Note, this question was not asked and response made in a situation where contested claims of title were being considered. In that circumstance, e.g., an action in ejectment to quiet title, the declaration of a party as to the source of his title would not be admissible. Neither would declarations about past transactions or contracts relating to such be relevant. Weston v. Weston, 269 Ala. 595, 114 So. 2d 898.
The fact that the words were spoken, not the truth of them, make the declaration admissible on the issue of colorable claim of possession by Savage which put Johnson on notice that his attempt to gain possession would be in the teeth of an asserted adverse claim of Savage. It was the obligation of Mid-State to place him in possession through its actions. That it made no attempt to do so, the jury could consider in determining whether the representation was false and known to be so, or recklessly made without knowledge.
Great latitude is allowed in admitting evidence on the issue of alleged fraud. May v. Strickland, 235 Ala. 482, 180 So. 93; National Surety Co. v. Julian, 227 Ala. 472, 150 So. 474. Most often the perpetrator of fraud is the sole possessor of actual knowledge of such fraud. Undue restriction should not be placed on the introduction of evidence which has probative value, however slight, on this issue. Weight is for the jury. The trial judge did not err when he failed to exclude the response of Mrs. Jackson to the question. Neither was it error to admit testimony of Savage relating to his purchase of the property at tax sale. That evidence was relevant to show the existence of his claim of possession adverse to that of Johnson.
Now to the prime question. Affirm and sue for damagesrescind and seek restoration, not both ?
During trial of this action several illuminating events occurred. Exposition of them may facilitate understanding of this *316 portion of our opinion. In opening statement, Johnson's attorney informed the jury that Johnson was asking for damages. Attorney for Mid-State objected:
This objection was overruled.
During its oral charge the court instructed the jury:
On the question of damages, the court charged:
The jury found for Johnson under those instructions by the court. Implicit in the finding was the determination that he had rescinded the contract. Recovery for money had and received (aggregate of monies paid under the contract) was thereby limited to some $715. The verdict was for $12,500, thus it is clear the additional $11,785 was punitive damages. Loch Ridge Construction Co., Inc. v. Barra, 291 Ala. 312, 280 So. 2d 745.
The central issue determinative of the prime question is whether the award of punitive damages was proper. It was. Ringer v. First National Bank of Stevenson, *317 291 Ala. 364, 281 So. 2d 261; quoting Pihakis v. Cottrell, 286 Ala. 579, 243 So. 2d 685, which in turn quoted Alabama Great Southern Railway Co. v. Sellers, 93 Ala. 9, 9 So. 375 stated:
To support an award of punitive damages it must be shown that Johnson suffered, at least, nominal damage; also the actions of Mid-State meet the criteria set out, supra.
Purists may argue that restitutionary recovery upon rescission is not recovery of damages. We are not deterred in making decision to the contrary by such sophistic argument:
Recovery by Johnson of payments made under the contract are "damages" in legal contemplation.
From the testimony of Savage, Johnson and employees of Mid-State, the jury could reasonably conclude that the actions of Mid-State met the criteria. Undoubtedly the jury concluded that the representation was made either maliciously or wantonly, with reckless disregard of the rights of Johnson. That being true the award of punitive damages was justified.
We realize that no Alabama case has held precisely as we hold today. However we do find authority from another jurisdiction which supports the reasoning of this opinion. The California Supreme Court, speaking through Justice Traynor in Ward v. Taggart, 51 Cal. 2d 736, 336 P.2d 534, held that judgment for plaintiff for $1000 per acre of $5000 per acre payments made in purchase of real estate plus $36,000 punitive damages, in an action tried on a fraud theory, was proper:
We agree with this reasoning. Punitive damages are for punishment and prevention. To allow them when a contract is affirmed, and not when there is a rescission, is illogical when the purposes of punitive damages are considered. The punitive and deterrent force of the law should be present in both types of cases since both arise from perpetration of fraud.
We hold today that where one rescinds a contract induced by fraud and recovers even nominal damages, then in an appropriate case he may also recover punitive damages. We hold that under the facts of this case, and the instructions given to the jury by the trial court, Glass v. Cook, 257 Ala. 141, 57 So. 2d 505, does not preclude recovery of punitive damages in a suit for damages whether the contract is affirmed or rescinded.
For the reasons stated, assignments of error complaining of: admission or exclusion of evidence; failure to direct a verdict in favor of defendant; errors in the oral charge to the jury; error for failing to give written jury instructions requested by defendant; that the judgment and verdict are contrary to the evidence and law, and the verdict is excessive are not well taken.
Affirmed.
FAULKNER and ALMON, JJ., concur.
BLOODWORTH, J., with whom JONES, J., joins, concurs specially.
BLOODWORTH, Justice (concurring specially).
I concur in so much of the opinion authored for the Court by Justice Embry which holds that one who rescinds a contract induced by fraud (if the fraud was malicious, oppressive, or gross, the representations being made with knowledge of their falsity, or made so recklessly as to amount to the same thing, and with the purpose of injuring the plaintiff) may recover punitive damages if he is entitled to recover actual damages, although the latter may be merely nominal. I do not agree that "restitutionary damages" constitute "actual damages." Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454, cert. den. 209 Ala. 466, 96 So. 459 (1922); See also Alabama Machinery & Supply Co. v. Caffey, 213 Ala. 260, 104 So. 509 (1925); Pihakis v. Cottrell, 286 Ala. 579, 243 So. 2d 685 (1971); Loch Ridge Construction Company, Inc. v. Barra, 291 Ala. 312, 280 So. 2d 745 (1973); § 389 Fraud and Deceit, 37 Am.Jur.2d, p. 527.
The general rule is stated in Glass v. Cook, 257 Ala. 141, 57 So. 2d 505 (1952) to be that one defrauded has an election either to affirm the contract and sue for damages for the deceit or disaffirm and sue for his money back but that he may not do both. Although a number of cases express the rule in the same or slightly different, language [see Fraud, Vol. 10A, Alabama Digest, 31], a better statement of it is found in Kennedy v. Collins, 250 Ala. 503, 35 So. 2d 92 (1948). Justice Stakeley qualified this general statement of the rule by pre-fixing the word "ordinarily." This is the key to the rule. While "ordinarily," one must, of course, give up the property and restore the benefits he has received if he rescinds or disaffirms and then sue for his money backthis does not preclude an action for damages for the *319 fraud practiced by the other party in procuring the contract. (In the present case, there was no restoration by plaintiff of possession or benefits because he received neither.)
The doctrine of the two Caffey cases, supra, clearly permits, upon disaffirmance, a suit for recovery of the money paid under the contract and the recovery of punitive damages, if the pleading and proof justify it. This is an exception to, or perhaps further refinement of, the general rule and does not conflict with it. The Caffey cases have never been overruled and have been cited as recently as 1973 in the Loch Ridge case, supra.
JONES, J., concurs.
[1] Only the two acres on which the dwelling house was situated was sold for taxes. The other two acres of the four which Johnson contracted to purchase had previously been purchased by defendant Mid-State Homes, Inc. to gain access to the property from a public road.
[2] Mid-State Homes, Inc. is a mortgage holder and financing organization for Jim Walter Homes. | April 3, 1975 |
9e6a7a92-03fe-471b-9bac-a4f5b2b3a78f | Armstrong v. State | 312 So. 2d 620 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 620 (1975)
In re W. C. ARMSTRONG, Jr.
v.
STATE of Alabama. Ex parte W. C. Armstrong, Jr.
SC 1046.
Supreme Court of Alabama.
March 13, 1975.
*621 Rogers, Howard, Redden & Mills, Birmingham, for petitioner.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, respondent.
PER CURIAM.
The following portion of this opinion was prepared for the court by Mr. Justice Faulkner, to whom this case was originally assigned.
Petitioner appealed to the Court of Criminal Appeals from an order of the Circuit Court revoking his probation. The Court of Criminal Appeals affirmed, 55 Ala.App. 37, 312 So. 2d 607. We granted certiorari.
In February, 1971, Armstrong was found guilty of various crimes against property. He was placed on seven years probation by a Circuit Judge of Tuscaloosa County. In July, 1973, he was indicted in Tuscaloosa County for two cases of robbery, conspiracy to rob, and kidnaping. On November 15, 1973, Armstrong's probation officer issued an order for his arrest for violation of his probation. Armstrong was arrested four days later, on November 19, and a probation revocation hearing was held. On that date just before the hearing Armstrong was given a copy of the report of the probation officer. Armstrong says this was the only written notice he was given concerning the alleged grounds for revocation.
*622 Before any evidence was presented at the hearing, Armstrong moved that he be granted a two stage hearing. By this he meant a preliminary hearing where he would be apprised of the allegations in the probation officer's report, and a later hearing so that he could meet those charges, and at such hearing, a final determination could be made as to his continued status as a probationer. The court overruled the motion.
The State introduced evidence consisting of the testimony of two principals to the robbery in Tuscaloosa County, committed on June 2, 1972. These witnesses testified that Armstrong was not a participant in the robbery, but he did take a major part in the planning and execution of the crime. Testimony of two probation officers, and the victim of the robbery was introduced by the State. The victim testified that Armstrong was not one of the persons who robbed him. The probation report was introduced. At the conclusion of the hearing Armstrong's probation was revoked.
The principal issue in this case is whether the hearing conducted in the Circuit Court of Tuscaloosa County was in compliance with the guidelines set out by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Morrissey held that even though the revocation of parole was not a part of the criminal prosecution, the loss of liberty entailed was a serious deprivation and required the parolee be accorded due process. Gagnon applied the principles outlined in Morrissey to revocation of probation, holding that a probationer was entitled to a preliminary and a final revocation hearing under the conditions specified in Morrissey. Those conditions included the following:
Gagnon expanded these to include right of counsel under certain conditions. The court said that it was not trying to write a code of procedure for each state, but felt that the minimum requirements of due process included the above.
In this case, the Court of Criminal Appeals seemingly reasoned that minimal due process had been met because of an affidavit filed by the trial judge. In the affidavit, the trial judge outlined a telephone conversation with Armstrong's attorney on November 15, 1973. No explanation was given in the affidavit why there was such a lapse between the time of the indictment and the efforts of the District Attorney to have Armstrong's probation revoked. The affiant merely stated he refused to take any action at the request of the District Attorney, and stated to the D. A. he would "await the probation officer." It was not until after the trial judge was requested by the probation officer, that the order of delinquency was entered. No hearing was held prior to the entry of that order. We disagree with the Court of Criminal Appeals in its conclusion that minimal due process was accorded Armstrong before revoking his probation.
We set forth the requirements and guidelines which must be met for minimal due process to be accorded the probationer under Morrissey and Gagnon before his probation can be revoked.
4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
For the reason that the probationer has not been accorded minimal due process, the Court of Criminal Appeals is reversed. The case is due to be remanded for a hearing in conformance with the due process requirements outlined in this part of the opinion.
Finally, should the probation be revoked upon another hearing, then the time already spent in the penitentiary must be fully credited against the probationer's sentence.
The following portion of this opinion was prepared for, and at the request of, the Court by Bloodworth, Justice.
The second issue raised by petitioner is whether a person's probation may be revoked on the uncorroborated testimony of accomplices. The Court of Criminal Appeals concluded that, although a felony conviction cannot be had thereon [Tit. 15, § 307], a person's probation may be revoked upon such testimony. We agree and affirm as to this issue.
It is contended that evidence sufficient to revoke probation must measure up to the same standard required to bind a person over to the grand jury, citing State v. Smith, 138 Ala. 111, 35 So. 42 (1902).
In the first place, we do not concede that the Smith case is applicable. It holds that our statute [Tit. 15, § 307] applies to preliminary hearings as to "probable cause" as well as to grand jury proceedings. No authority is cited for this holding except the statute, and, of course, it applies to trials where a conviction may be had. Such case is clearly inefficacious to produce a result different from that which we espouse.
This Court has held that this "section [Tit. 15, § 307] merely creates a statutory rule, and not a constitutional right." Alexander v. State, 281 Ala. 457, 204 So. 2d 488 (1967).
Gagnon, itself, specifically holds that "formal procedures and rules of evidence are not employed" in probation revocation hearings. Justice Faulkner in writing this Court's opinion as to issue I specifically notes that, on revocation hearings, the standard of proof is not reasonable doubt or preponderance of the evidence but reasonable satisfaction from the evidence.
As the Court of Criminal Appeals notes in its opinion:
The United States Supreme Court, in several very recent decisions, has written that there is a great difference between the rules governing probable cause hearings for arrest and search, grand jury proceedings, and those governing the trial itself.
The United States Supreme Court in Matlock continued by writing:
In United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974), the court wrote:
Moreover, our Court of Criminal Appeals has consistently held that an indictment may rest on hearsay. Pitts v. State, 53 Ala.App. 373, 300 So. 2d 416 (1974), cert. den. 293 Ala. 770, 300 So. 2d 420; State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So. 2d 779 (1974), cert. denied in opinion 292 Ala. 506, 296 So. 2d 784. See also Dixon v. State, 42 Ala.App. 341, 164 So. 2d 509, (1964); Douglas v. State, 42 Ala.App. 314, 163 So. 2d 477 (1963).
In conclusion, we hold as to Part I that petitioner Armstrong was not awarded "minimal due process" under the United States Supreme Court decisions in Gagnon v. Scarpelli and Morrissey v. Brewer and that the decision and judgment of the Court of Criminal Appeals is reversed as to this issue (Part I) and the cause remanded for a hearing in conformity with the due process requirements which we have heretofore set forth.
In conclusion, we hold as to Part II that, in probation revocation proceedings, the testimony of accomplices need not be corroborated [as required by Tit. 15, § 307 for convictions] in order to warrant a revocation of probation by a trial judge and the decision and judgment of the Court of Criminal Appeals is affirmed as to this issue (Part II).
HEFLIN, C. J., and MERRILL, BLOODWORTH, FAULKNER, JONES, SHORES and EMBRY, JJ., concur in Part I.
HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX and SHORES, JJ., concur in Part II.
FAULKNER, Justice (dissenting in Part II of the opinion).
At the outset it may appear to the reader of this opinion that it is somewhat peculiar for me to be writing the majority opinion one of the issue, while at the same time writing the dissenting opinion as to the other issue. This calls for an explanation. The case was originally assigned to me for preparation of the opinion of the court. The majority of the court agreed with my views on the minimal due process issue. Likewise, a majority of the court disagreed with my view on the issue involving the uncorroborated testimony of accomplices.
Even though the probation officer referred to Armstrong's managing a place of ill repute, and having been found guilty of selling beer on Sunday in violation of law, two seemingly valid reasons for revoking probation, it is obvious the probation officer was concerned only with the robbery and kidnaping charges. His recommendation is, "If testimony is offered implicating Armstrong in the robbery and kidnaping of Mr. and Mrs. Lewis Faucett, it is my recommendation that his probation be revoked." As noted above, the only testimony implicating Armstrong in the crimes came from accomplices.
The Court of Criminal Appeals concluded that while a felony conviction cannot be had on the uncorroborated testimony of an accomplice, probation may be revoked based upon such testimony. I do not agree with this conclusion. I am of the opinion that the "reasonable satisfaction from the evidence" standard applied by a trial judge in a revocation hearing would not include uncorroborated testimony of accomplices. That standard would at least be equal to evidence of probable cause required to bind a person over to the grand jury.
In State v. Smith, 138 Ala. 111, 35 So. 42 (1902), Chief Justice McClellan wrote to the question whether the uncorroborated testimony of an accomplice may be sufficient to show probable cause to believe that a felony has been committed and that the party under inquiry is guilty thereof. The Chief Justice stated:
I would not be as unkind to Smith as Mr. Justice Bloodworth. If Smith is going to be buried it should have a decent funeral maybe not a requiem mass but at least, a few kind words before it is lowered in a grave.
It does not appear that Armstrong has ever been tried for the charges in the indictment. The position of the State in this case may be as that described in Morrissey by Chief Justice Burger speaking of revocation of parole:
Because of the danger that accomplice's testimony may be polluted, it is my opinion that such testimony must be corroborated in order to warrant revocation of probation when that is the sole basis of revocation. Here it appears that the probationer was implicated in a crime only on the accomplices' testimony, which was not corroborated.
I respectfully dissent to the ruling of the court as to Issue II.
JONES, Justice (concurring in part and dissenting in part).
Because of that portion of the opinion dealing with the uncorroborated testimony question (Part II), with which I cannot agree, I am constrained to address myself to this issue.
Assume, for example (which is more factual than hypothetical), that the only violation of the conditions of probation is the alleged robbery of the drugstore. At the revocation hearing, the only evidence adduced is that of a confessed accomplice who says, "I robbed the store but he knew about it and helped in planning the act." the defendant's probation is revoked. He is never brought to trial for robbery for the obvious reason that the state cannot obtain a conviction. Without this charge, the defendant could still be on probation for the prior conviction. He is now, in effect, serving time for the commission of an offense for which he could not be tried and convicted. The same policy reason for not permitting a conviction on the testimony of an accomplice, unless corroborated, equally obtains here. Its reliability is not increased by the nature of the hearing, whether to determine if his probation will be revoked or his guilt or innocence of the offense. The "corroboration" rule is not a mere rule of evidence, but a substantive rule going to the burden of proof an essential element of the offense, legislatively mandated by Tit. 15, § 307, Alabama Code.
This does not mean, of course, that the trial judge is held to the more strict standard of "convinced beyond a reasonable doubt," the "hearsay" rule, and other procedural and substantive rights of the defendant which would govern in a jury trial of the alleged offense. But, in my opinion, it ought to mean that where a criminal violation is the basis for revocation of probation,
*628 there should be sufficient proof of each of the elements of the offense to reasonably satisfy the trial court that the defendant has in fact committed the offense, and thus violated the terms of his probation. Otherwise, we are right back to preGagnon and Morrissey, saying, as we did then, that because probation is a matter of grace in the first place, it can be revoked at will; so why the necessity for any degree of proof with respect to the violation charged?
To be sure, many states and the federal system do not have the "uncorroborated testimony of an accomplice" rule, but we do, and for good reason. It is the wisdom of this rule that such testimony, by its very nature, is so unreliable as to require corroboration to convict for a felony. Because of the lack of the full panoply of constitutional rights at a revocation hearing (e. g., trial by jury), there is even more reason to preserve and apply this rule.
Therefore, I concur in part I and dissent with respect to Part II.
MADDOX, Justice (concurring specially in Part I of the opinion).
I agree that the case needs to go back to trial court to allow the trial judge to put into the record a written statement as to the evidence he relied on and the reasons why he revoked Armstrong's probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). I think we all know that the trial judge relied on the testimony of Armstrong's alleged co-conspirators and that of the probation officer in revoking Armstrong's probation because of the robbery and kidnapping charges, but one of the Gagnon standards does say that the factfinder (that would be the trial judge in probation matters) must make a written statement; therefore, I think this written record needs to be made for whatever benefit, if any, it will be to Armstrong. Cf. Foy v. Bounds, 481 F.2d 286, 4 Cir., 1973.
I also agree in that portion of the majority opinion which affirms the Court of Criminal Appeals in its conclusion that no corroboration of the testimony of accomplices is required in probation revocation hearings.
I do not agree with the holding of the majority that minimal due process was not accorded Armstrong in all other respects. I will detail each standard set out in Gagnon and attempt to show why Armstrong was accorded "due process," in all other respects.
I believe Armstrong received written notice of the claimed violations of probation. Armstrong was actually arrested on an order of his probation officer. The order was issued pursuant to Title 42, § 24, Code 1940 (Recomp. 1958) which provides:
The trial judge had ordered a warrant to issue to arrest Armstrong on November 15, 1973. The minute entry reads:
In Foy v. Bounds, supra, Judge Haynesworth said: "The warrant gave him written notice of the conduct with which he was charged as violating the terms of his probation." I do not know how specific the warrant in Foy v. Bounds, was, but I think the procedure here was specific enough to notify Armstrong, under Gagnon standards, of the claimed violation. Furthermore, Armstrong's lawyer was told on Thursday before the Monday hearing that Armstrong's probation would probably be revoked because of the indictments. This was not written notice, but we are talking about "due process" and fundamental fairness. In short, I think Armstrong's lawyer had sufficient notice of the alleged claims of violation of probation. I think he knew on Thursday that the trial judge would probably revoke probation because of the criminal charges.
The delinquency report prepared by the probation officer was given to Armstrong's attorneys on the morning of the revocation hearing. The record reflects as far as I can determine, no attempt was made by Armstrong's attorneys to get more speciics about the alleged claims of violation of probation during the four days prior to the hearing. Armstrong's attorney asserted before the hearing began that he "assumed" the delinquency report constituted the charges. I am not sure this is a correct assumption. I believe that Title 42, § 24 contemplates that the warrant, or the probation officer's statement, whichever is used, are the charges. Armstrong was given a copy of the delinquency report. Oral testimony was also presented at the hearing, *630 and Armstrong was contronted by witnesses against him. Consequently, "due process" was accorded Armstrong in this respect, in my opinion.
Both of these rights were given to Armstrong, in my opinion.
I believe that a hearing before a trial judge, even if he is the one who gave probation initially, satisfies this requirement of neutrality and impartiality.
The trial judge failed to do this. I do not understand why a trial judge should be required to do this, but Gagnon does set it out as a standard.
What about a two-stage proceeding? Gagnon speaks of a two-step procedure a preliminary hearing and a revocation hearing. In most cases, a two-step procedure will be required, especially if the probationer will be detained for a substantial period of time on a warrant or statement awaiting the revocation hearing. But is every probationer entitled to a two-stage proceeding, especially if he has been charged by a grand jury with the commission of a felony? I think not. Other courts which have considered the question agree with me. In fact, I do not believe Morrissey or Gagnon say that two hearings must be held in every case. The facts in Morrissey and Gagnon are so different from the facts of this case. As I read those cases, they do not condemn the Alabama procedure. In fact, Alabama's procedural statute for parole revocation [Title 42, § 12, Code of Alabama, 1940 (Recomp. 1958)] is approvingly cited in the Morrissey case. 408 U.S. at page 488, 92 S. Ct. 2593.
I think Morrissey and Gagnon address a serious problem the detention of a parolee or probationer without minimal "due process." Those cases are distinguishable from the facts of this case.
Morrissey was a parolee in Iowa, a state in which no law required a hearing before a parole could be revoked. Morrissey was arrested at his parole officer's direction and held in a county jail until the Board of Parole revoked his parole after review of the parole officer's written report. The Supreme Court of the United States held that federal procedural due process requires a hearing, which can be informal, before a state parole can be revoked and that, (1) where state statutes do not require such a parole revocation hearing [Alabama does], and (2) where there is a substantial time lag between arrest and final determination by the parole board [there was no time lag here], and (3) where the parolee is arrested at a place distant from the state institution to which he may be returned before the final revocation decision is made [probationer arrested in Tuscaloosa], given these factors, due process also requires a minimal inquiry preliminary hearing [hearing here was full blown], as promptly as convenient after the arrest [hearing held four days after arrest], and at or near the place of arrest or place of the alleged violation [held in Tuscaloosa where violation allegedly occurred].
Morrissey further held that this hearing to determine probable cause to believe the parolee had committed acts violating his parole could be held before any neutral and detached independent hearing officer, even a parole officer other than the one recommending revocation [hearing here before a circuit judge]. Other minimal requirements *631 for such initial hearing are detailed in the opinion.
Gagnon v. Scarpelli was a Wisconsin case. Wisconsin, unlike Alabama, had no law requiring a probation revocation hearing. Scarpelli was sentenced to prison but the sentence was suspended and he was placed on probation and permitted to reside in Illinois. The day after Scarpelli was accepted for supervision in Illinois, he was apprehended in the process of a house burglary. The Wisconsin department, apparently an administrative agency, forthwith revoked probation without a hearing [a hearing was held here], and Scarpelli was taken directly to prison in Wisconsin to begin serving his sentence. The Supreme Court held that probation, where sentence has been imposed, is constitutionally indistinguishable from parole, and that Scarpelli was entitled to a preliminary and final revocation hearing as specified in Morrissey v. Brewer.
In Gagnon, there was no hearing, preliminary or final.
Some state courts have addressed the question of the necessity for a preliminary hearing in every case. In Singletary v. State, Fla.App., 290 So. 2d 116, the District Court of Appeals certified the following question to the Supreme Court of Florida. "Does the decision of the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), create an absolute requirement for a separate and distinct preliminary hearing prior to a formal probation revocation hearing?" The Supreme Court of Florida dismissed the certiorari on April 1, 1974, 293 So. 2d 361.
What is the purpose of the preliminary hearing suggested in Morrissey and Gagnon? In my opinion, the sole purpose of the preliminary hearing is to determine whether there is probable cause to believe that a probationer has violated the terms of his probation. See Stevenson v. State of Fla., Fla.App., 300 So. 2d 281; Bernhardt v. State, 288 So. 2d 490 (Fla.). As a matter of fact, the hearing is so informal that it can be held before a probation officer other than the one who is supervising the probationer.
See Singletary v. State, Fla.App., 290 So. 2d 116; Annotation, 29 A.L.R.2d 1132, Nature and Sufficiency of Notice in a Probation Revocation Hearing.
In Genung v. Nuckolls, 292 So. 2d 587 (Fla.), Justice Roberts held that under Florida law a subsequent arrest on a felony charge of a probationer is prima facie evidence of violation of condition of parole and that an adjudication of guilt on the charge is unnecessary to a revocation of probation. The Genung case stands for the proposition that no preliminary hearing is necessary when there has been a subsequent arrest on a felony warrant. Judge Haynesworth, in Foy v. Bounds, 481 F.2d 286, 289 (4 Cir., 1973), discussed the standards set out in Gagnon, including the necessity for a preliminary hearing. He said:
We have grand jury indictments here. A grand jury indictment satisfies any requirement of probable, cause that the defendant violated the law and a condition of probation, in my opinion. Why does the state have to hold another independent hearing to decide whether there is probable cause to detain the probationer until the time a revocation hearing can be held when a grand jury has found an indictment? In other words, "due process" does require that the defendant not be at the complete mercy of the parole or probation officer as was true in both Morrissey and Gagnon. However, Armstrong is in a different position. A grand jury indictment charged that Armstrong had violated the law. The indictment was enough, in my opinion, to hold him until the revocation hearing set four days hence. In fact, the indictment authorized the state to arrest and hold Armstrong until he could make bond. The revocation hearing was held promptly, as required by law, so I see no denial of fundamental fairness.
Except as indicated, I think the trial judge complied substantially with Gagnon. I, therefore, thought it desirable to set forth my separate views in this special concurrence.
[1] The minimum constitutional requirements of due process for appointment of counsel (an issue not involved in this case) may be found in Gagnon, supra, at 411 U.S. p. 790, 93 S.Ct. p. 1763:
"Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness the touchstone of due process will require that the State provide at its expense counsel for indigent probationers or parolees.
"It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every, case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record." | March 13, 1975 |
03e25c66-bcfc-43cb-b624-33f34c637b07 | Teele v. Gravlee | 313 So. 2d 169 | N/A | Alabama | Alabama Supreme Court | 313 So. 2d 169 (1975)
Mrs. C. E. TEELE
v.
Mrs. Joyce GRAVLEE.
SC 1078.
Supreme Court of Alabama.
May 8, 1975.
M. Clay Alspaugh, Birmingham, for appellant.
Bert P. Taylor, Birmingham, for appellee.
MERRILL, Justice.
Plaintiff, Mrs. C. E. Teele, sued her neighbor, Mrs. Joyce Gravlee, claiming damages for personal injuries when defendant's Pontiac Tempest ran into plaintiff's house trailer. The verdict was for defendant and plaintiff's motion for new trial was overruled.
Plaintiff and defendant lived in adjoining house trailers and plaintiff's trailer was slightly downhill and fifty feet from defendant's. On July 21, 1973, defendant drove up in front of her trailer, stopped the car, turned off the motor, pulled up the emergency brake and got out of the car. Her nine-year-old daughter was still in the car. Defendant reached to close the car door but the car had begun to move downhill. *170 She jumped back into the car but failed to stop it before it collided with the end of plaintiff's trailer. Defendant and her daughter were not hurt. The collision made a dent on the bumper of defendant's car, a dent on the tow bar of plaintiff's trailer, and moved some of the bricks under the trailer a few inches.
Plaintiff testified that she was knocked out of bed, several dishes were broken and she began suffering back pains. The investigating officer and defendant testified that they asked plaintiff is she was injured and she answered that she was not. Defendant also talked with her on July 23 and she made no complaints. Plaintiff denied making the statements attributed to her on July 21 just after the collision.
Plaintiff makes two assignments of error and argues each of them. The first is that the court erred in overruling her motion for a new trial and the ground stated in brief "that the verdict of the jury was not sustained by the preponderance of the evidence."
It has long been the rule in this state that the credit and weight of the evidence is for the jury.
Proof in a negligence action is rarely absolute. Necessarily, a jury cannot depend on the basic facts alone; inferences must be drawn therefrom. Consequently, when the proof in a negligence suit reveals such a state of facts, whether controverted or not, from which different inferences and conclusions may reasonably be drawn, then the question of liability must be left to the jury. Gleichert v. Stephens, 291 Ala. 347, 280 So. 2d 776.
The following from Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797, is applicable here:
Here, the credibility of the witnesses and the weight of the evidence was decided by the jury in favor of the defendant. In view of the verdict and the action of the trial court in overruling the motion for a new trial, we find no reversible error in the first assignment of error.
The second assignment charges that the court erred in overruling plaintiff's objection to that part of defendant's closing argument wherein counsel for defendant argued that "back injuries and lawsuits run hand in hand." Actually, the words objected to were "back injuries in lawsuits, I am afraid, run hand in hand." Defendant says that the next statement of counsel explains the comment. In briefs, counsel for both sides quote more of the argument either before or after the comment and we copy that part of the argument from the record:
In Adams v. State, 291 Ala. 224, 279 So. 2d 488, this court said:
The following statement from Birmingham Electric Co. v. Perkins, 249 Ala. 426, 31 So. 2d 640, has been restated in at least three subsequent cases:
And later in the opinion, this court said:
This requirement of substantial prejudice as a prerequisite to reversal on the basis of counsel's argument to the jury is stated in our recent cases of Adams v. State, 291 Ala. 224, 279 So. 2d 488; Central of Georgia Ry. Co. v. Phillips, 286 Ala. 365, 240 So. 2d 118; Louisville & N. R. Co. v. Wade, 280 Ala. 453, 195 So. 2d 101; St. Clair County v. Martin, 273 Ala. 302, 139 So. 2d 617, and Occidental Life Insurance *172 Co. of Cal. v. Nichols, 266 Ala. 521, 97 So. 2d 879.
In our opinion, counsel was not stating a fact not in evidence, but was merely commenting on a valid inference from the evidence, and drawing a conclusion from the evidence based on his own reasoning. Also, from the record as a whole, we cannot say that it affirmatively appears that the argument objected to was probably prejudicial to appellant.
Affirmed.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | May 8, 1975 |
b202ff9d-6729-4b13-944e-be8a4bad5f2a | Clemmons v. State | 321 So. 2d 238 | N/A | Alabama | Alabama Supreme Court | 321 So. 2d 238 (1975)
In re Jesse Ray CLEMMONS
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1050.
Supreme Court of Alabama.
May 22, 1975.
Rehearing Denied June 19, 1975.
*239 William J. Baxley, Atty. Gen. and John M. Gruenewald, Asst. Atty. Gen., for the State.
H. Edward McFerrin, Greenville, for respondent.
SHORES, Justice.
Defendant, Jesse Ray Clemmons, was indicted by the Grand Jury of Butler County, Alabama, on May 9, 1973, for first degree murder. He was found guilty of second degree murder and was sentenced to thirty years in the penitentiary. He appealed to the Court of Criminal Appeals, which remanded the case to the circuit court for an investigation and examination of the defendant at a hearing for a determination to be made by the trial court whether, in its discretion, he should be treated as a youthful offender under Tit. 15, §§ 266(1)-(6), Code.
The State filed a petition for writ of certiorari which we granted because of the apparent conflict between Morgan v. State, *240 291 Ala. 764, 287 So. 2d 914 (1973); and Armstrong v. State, 49 Ala.App. 720, 275 So. 2d 698 (1972), cert. den. 290 Ala. 256, 275 So. 2d 702 (1973).
The record shows that the defendant was nineteen years old at the time of the commission of the act and twenty years old at the time of the trial. There is nothing in the record to indicate that the defendant asked to be treated as a youthful offender under the statute, or that the Youthful Offender Act was called to his attention by the trial court.
Squarely presented, therefore, is the question of whether it is mandatory for the trial court to call the Act to the attention of the defendant, as dictum in Morgan, supra, seems to indicate, or whether Armstrong, supra, controls, which held that the defendant could not raise for the first time on appeal the failure of the trial court to afford him the benefit of the Youthful Offender Act.
The statute provides:
In Morgan, supra, the following statement appears:
The language of the statute is clear that a person charged with a crime committed in his minority (and not disposed of in juvenile court and) which involves moral turpitude or is subject to a sentence for one year or more shall be investigated and examined by the trial court to determine whether he should be afforded youthful offender status. The defendant must consent to the investigation and examination.
We have been cited to no statute from any other state which makes such an investigation and examination mandatory if the *241 defendant consents. A similar New York statute, which has now been repealed and replaced by a much more workable one, reads in part as follows:
It is obvious that the New York statute left the determination to order an investigation to the discretion of the trial court. People v. Roberts, 35 A.D.2d 760, 315 N.Y.S.2d 208 (1970); People v. Judd, 61 Misc.2d 180, 305 N.Y.S.2d 316 (1969).
While our statute seems to require an investigation in certain cases, we do not read it to require the trial court to order an investigation by a probation officer in every case. In fact, § 266(5) of Tit. 15 places a duty on the probation officers to make such investigations as requested by the court. We read this to mean that referral to the probation officer for an investigation is a discretionary matter with the trial court, not mandatory as Morgan seems to suggest.
As we read the statute, the requirement that an investigation be made means only that the trial court should conduct or order such investigation as is necessary in each case, including an investigation by the probation officer, if it sees fit, but not necessarily, for the development of such facts as are required for a determination of whether the defendant is eligible for youthful offender treatment.
Obviously, the court will not require an investigation by a probation officer in every case. In many cases, sufficient facts for a determination will be available without a probation officer's report.
The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereofall of which can be ascertained without a lengthy, time consuming investigation by the probation officer.
We do not believe the legislature intended that each case must be referred to a probation officer for an investigation. Nor do we read the statute to require a full, formal hearing in every case. All that is required of the trial court, assuming the defendant consents, is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried, and if found guilty, sentenced in the normal criminal process.
Most of the states which have attempted to deal with the matter of older adolescents charged with crime follow the English system under which no step in the youthful offender process is taken until conviction. Cal.Welf. & Inst'ns Code, § 1700 et seq., (Deering Supp.1971); Mass.Ann.Laws, Chap. 120 (Supp.1971); Minn.Stat.Ann., § 242.01 et seq., (Supp.1971); Wis.Stat., § 54.01 et seq. (1969). At that stage, those courts order a presentence investigation. Thereafter, and prior to pronouncing sentence, the court declares its finding on the youthful offender issue. This procedure is said to serve the primary purpose of the youthful offender process, which is to avoid, if feasible, conviction of the young *242 offender for a "crime" and therefore save him the stigma attending criminal conviction.
However, our statute requires that the determination to grant or refuse youthful offender treatment be made at a point near the commencement of the criminal action, and before entry of a plea.
Unlike the New York statute, however, ours requires the consent of the defendant before the trial court is under the statutory mandate to investigate and examine him. Sequentially, then, the first step that the trial court takes under the scheme of the statute is to advise the defendant that he might be eligible for youthful offender treatment, but before a final determination on that issue can be made, the defendant must decide whether he consents to an investigation and examination. If the defendant does not consent to the investigation and examination, this ends the matter and trial on the indictment or information proceeds. If he does consent, meaningfullywhich necessarily assumes that the statute is explained to him, either by his counsel or the court (People v. Marino, 51 Misc.2d 238, 273 N.Y.S.2d 5), and the court is of the opinion that the consent was voluntarily and intelligently made, it then makes or orders such investigation as it deems necessary and holds the examination. Then the court decides, in the exercise of sound discretion, whether the defendant, based upon such investigation and examination, should be treated as a youthful offender under the statute.
In the present case, the defendant has been tried by a jury and found guilty.[1] He has been sentenced to the penitentiary. He was never apprised of the fact that he might be treated as a youthful offender under the statute. Therefore, on remand, the trial court should bring the defendant before it, should inform him of the provisions of the Youthful Offender Act, and that, if he desires, he may consent to an investigation and examination.[2] If the defendant does not consent to the investigation, the judgment of conviction stands. If he does consent, the trial judge should initiate such investigation as he deems necessary. Upon completion of the investigation, he should then proceed to examine the defendant. If, in his discretion, he determines that the defendant is entitled to youthful offender treatment, the sentence imposed in the murder case should be set aside, and the defendant should be afforded youthful offender treatment under the provisions of the statute. If, after the investigation and examination, the court determines that the defendant is not entitled to youthful offender treatment, the judgment of conviction and the sentence imposed stand.
If, by reason of failure of the defendant to consent to the investigation and examination, or by reason of the trial court's finding, after such investigation and examination, that he is not entitled to youthful offender treatment, the defendant has the right to renew his appeal in the Court of Criminal Appeals, which has retained jurisdiction of the cause, for a decision on the points not heretofore reviewed in that court on the original appeal.
To the extent that Armstrong, supra, is in conflict herewith, it is overruled. We disagree with the statement in Morgan, supra, set out above, that referral to a probation officer is mandatory. Nor do we believe, as Morgan can be read to suggest, that the requirement that the Youthful Offender Act be called to the defendant's attention is mandated by the Constitution of the United States, or the Constitution of *243 the State of Alabama. As we read the Act, this requirement is mandated by the Legislature.
Affirmed.
HEFLIN, C. J., MERRILL, BLOODWORTH, MADDOX, JONES and EMBRY, JJ., and COLQUITT, Circuit Judge, sitting specially, concur.
FAULKNER, J., concurs in part and dissents in part.
ALMON, J., not sitting.
FAULKNER, Justice (concurring in part and dissenting in part).
I concur in the result reached by the majority. But, I am still of the opinion that the investigation should be made by a probation officer. He is the most logical person under our system of criminal justice to conduct the investigation. It is not the duty of a trial judge to make investigations. His duty is to judge. I do not believe the legislature intended that the trial judge act as judge, investigator, and probation officer.
The majority opinion opens the gates for appeals which will be based on abuse of discretion on the subject of investigation of the youthful offender.
[1] See Ex parte Raines (In re Raines v. State, 294 Ala. 360, 317 So. 2d 559, this day decided, treating the jury trial issue.
[2] Raines, supra, contains a commendable procedure, which may be helpful in appropriate situations. | May 22, 1975 |
8abf1e85-dab5-4849-80e7-03e8a119b3dc | INTERSTATE FIRE AND CASUALTY COMPANY v. Baker | 310 So. 2d 868 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 868 (1975)
INTERSTATE FIRE AND CASUALTY COMPANY, a corporation
v.
Isaac D. BAKER.
SC 834.
Supreme Court of Alabama.
March 27, 1975.
Rehearing Denied April 24, 1975.
Huie, Fernambucq, Stewart & Smith, Birmingham, for appellant.
Bell & Lang, Sylacauga, for appellee.
MADDOX, Justice.
This appeal involves an insurance coverage question. Isaac D. Baker contracted with a house mover, Bessemer Housemovers, Inc., to move his house. Before the house was "loaded out" it caught fire and burned. Baker claimed that the house mover was negligent in causing his house to burn. He sued the mover and obtained a final judgment in the sum of $15,000. There was evidence that a tenant was permitted to remain in the house while it was being prepared for moving and that the mover had hooked up temporary electrical wiring to the house. Baker claimed the temporary wiring was the cause of the fire.
Interstate Fire and Casualty Company became involved because it had issued a general liability policy to Bessemer Housemovers. Interstate denied coverage for the fire and claimed that two provisions in the policy excluded coverage.
Baker, as a judgment creditor, sued Interstate under the provisions of Title 28A, § 485, Code of Alabama, 1940 (Recomp. 1958) (1973 Supp.), and sought to have the insurance money provided for in the policy ($10,000), applied to satisfy his judgment.
The court, sitting without a jury, found for Baker and ordered Interstate to pay him $10,000 plus costs. The court, in an amended judgment order, noted a $250 deductible clause in the policy, and reduced the award to $9,750 plus costs. There was no cross-appeal, therefore, we do not discuss the validity of the amended order.
In its final judgment, the court said:
Interstate appealed, claiming that there was no coverage. It relies on the same two policy provisions it claimed were applicable in arguments before the trial court.
Endorsement number G318 states:
Exclusion (i)(3) within the body of the contract reads:
"This insurance does not apply:
Interstate argues that the facts show that the dwelling house which was destroyed was in the "care, custody or control of the insured," or that the insured was exercising physical control over the dwelling house when it was destroyed. If Interstate is correct, the exclusions prevent the insurance proceeds from being applied to Baker's judgment.
We will not detail the evidence, but we have examined the record, and we are of the opinion that the trial court did not commit error in applying the rule of Fidelity and Casualty Co. v. Landers, 283 Ala. 697, 220 So. 2d 884 (1969), to the facts of this case.
There was testimony that the house had not been "loaded out," and that Bessemer Housemovers was not exercising such "care, custody or control" of the house to make either exclusion applicable. In short, the trial court's finding is supported by the evidence.
In Landers, 283 Ala. at 699, 220 So. 2d at 887, this Court said:
Quoting with approval from another case, this Court, in Landers, continued:
In Landers, this Court further observed, quoting from a South Carolina case: "`* * * Care, custody or control of [and we might add "physical control"] property *870 implies more than the mere right of access to it ...'"
We find that the trial court did not err in determining that Interstate's policy provided coverage. The judgment of the trial court is affirmed.
Affirmed.
HAFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur. | March 27, 1975 |
fc04e931-10cb-4f9a-b48a-ef90edba1802 | Bowens v. State | 309 So. 2d 850 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 850 (1975)
In re Jerome BOWENS
v.
STATE.
Ex parte Jerome Bowens.
SC 1132.
Supreme Court of Alabama.
March 13, 1975.
Frankie Fields Smith, Mobile, for petitioner.
BLOODWORTH, Justice.
Petition of Jerome Bowens for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Bowens v. State, 54 Ala. App. 491, 309 So. 2d 844.
Writ denied.
HEFLIN, C. J., and MADDOX, FAULKNER and EMBRY, JJ., concur. | March 13, 1975 |
b7ddea4f-b4c0-46c8-8b93-a205eadd9146 | Johnson-Rast & Hays, Inc. v. Cole | 310 So. 2d 885 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 885 (1975)
JOHNSON-RAST & HAYS, INC., a corporation, et al.
v.
Sarah Grant COLE.
SC 815.
Supreme Court of Alabama.
April 3, 1975.
*886 Gilbert E. Johnston, Sydney L. Lavender, John D. Quenelle, Birmingham, for appellants Cherokee East Corp., J. Hamilton Perkins, Jr., M. Vann Perkins, Ted A. Holder, H. M. Davis, Jr., John B. Davis, Gerald A. Drennan, Felix A. Drennan and Preston H. Haskell, Jr.
John P. McKleroy, Jr., Birmingham, for appellant Johnson-Rast & Hays Co.
Whitmire, Morton & Coleman, Birmingham, for appellee.
ALMON, Justice.
Complainant filed a bill in equity seeking a declaratory judgment construing an option contract with amendments. The prayer was for $50,000.00 plus interest as damages for breach of contract. The evidence was heard ore tenus without a jury and judgment was rendered in favor of the complainant.
While suit was in progress in the trial court, the Alabama Rules of Civil Procedure became operative. Thus, we shall refer to complainant as plaintiff and respondents, appellants here, as defendants.
The situation which gave rise to the controversy was that Cherokee East Corporation was developing an apartment complex and the stockholders of the Corporation were desirous of selling the complex when completed. The plaintiff was interested in purchasing the complex. It was contemplated that the future sale would be accomplished by selling the stock rather than by conveying the real estate by deed. The defendants, with the exception of Preston H. Haskell, Jr., and the Corporation itself, were the owners of all the stock of Cherokee East Corporation.
In December of 1969 the plaintiff entered into an "option to purchase stock" contract with the stockholder defendants. Pertinent portions of that contract are as follows:
The permanent financing was to be accomplished by a loan from Metropolitan Life Insurance Company to Cherokee East Corporation. The amount of the loan commitment varied from $1,050,000.00 to $1,250,000.00. The purpose of this variation was that if the percentage of occupancy of the apartment units increased, the amount of the loan would be increased. This formula was set out in detail in the contract.
The occupancy factor did not increase as anticipated. In an effort to give the business venture more time and to possibly increase the occupancy thus increasing the amount of the loan, the following amendment to the contract was negotiated:
"Mr. Jerry Drennen November 17, 1970 Agent for Sellers
"Dear Jerry:
The plaintiff's contention at trial was that the stockholder defendants failed to give her written notice of the loan closing, therefore the sixty day option period never began to run; furthermore, that the stockholder defendants subsequently sold the complex to defendant Preston H. Haskell, Jr., thereby breaching the contract and depriving her of the right to exercise the option for which she had paid $50,000.00.
The defendant stockholders contend that the amendment to the contract did away with the necessity to give written notice and, in the alternative, that the amendment was itself written notice. They also contend that the plaintiff had actual knowledge of the loan closing through various conversations with the defendant Gerald A. Drennen and others and that since she had actual notice, written notice was not required.
The primary issue therefore seems to be, did the written notice provision in the written contract survive the amendment. Stated another way, did the amendment modify the original contract so as to dispense with the necessity to give written notice.
Provisions 1, 9 and 10 of the amendment are unclear when read in conjunction with the written notice provision of the original contract. Provision 1 states that the sellers (stockholders) agreed to close the loan on December 22, 1970. Provision 9 states that the buyer (plaintiff) agrees to the five months extension and that "the first date on which I may exercise my option" is May 22, 1971. It further states that the sixty day notification period will remain unchanged. Provision 10 states that all *889 terms and conditions of the original contract are to remain in full force and effect "except such that are specifically amended by this agreement." There is nothing specific in the amendment about written notice. What does the word "may" in provision 9 mean? Does the word "may" used in that context mean that May 22, 1971, is the day on which her sixty day option must begin to run? Or does it mean that if the loan is closed in accordance with provision 1 and she receives written notification to that effect and she chooses to exercise the option, then she may do so on that date?
When the terms of contract are clear, it is incumbent upon the court to analyze and determine the force and effect of those terms as a matter of law. Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So. 2d 698. However when, as here, the contract is ambiguous, parol evidence is admissible to ascertain the true intent of the parties. This is a fact question to be determined by a jury or, as in this case, by the trial judge sitting without a jury. Pritchett v. Wade, 261 Ala. 156, 73 So. 2d 533.
The testimony was in sharp conflict as to the meaning of the amendment. There was evidence tending to show that the plaintiff had actual knowledge of the loan closing; that she had many conversations with Gerald A. Drennen, reputed agent of the stockholders, regarding each step of the negotiation. There was also evidence that it was the intention of the stockholders that the amendment dispensed with the notice requirement. On the other hand, the plaintiff's evidence tended to show that she had no knowledge of the loan closing; that she received no written notice; and that it was her understanding that the contract and amendment clearly called for written notice.
It is a general rule that a party claiming that a contract modifies a prior contract must show that the later contract is definite and certain as to the terms of modification, and the modification extends only so far as the terms are definite, certain and intentional. 17 C.J.S. Contracts § 374, p. 424.
"[W]hen the terms of the original contract are undisputed and were thereafter altered or changed by the mutual agreement of the parties and the extent of that modification only was in dispute, it is clearly `a question for the jury to determine.'" Jeff D. Jordan & Co. v. Yancey & Abernathy, 242 Ala. 385, 6 So. 2d 473.
The trial court concluded from the evidence that the plaintiff did not forfeit the option money. Implicit in its holding was a finding of fact that the parties did not intend, nor did the two instruments unambiguously provide that the modification would extinguish the stockholders' original duty to furnish written notice of the closing of the floor loan and thereby start the running of the option period.
The factual findings of the court have the effect of a jury's verdictthe resulting judgment grounded upon such findings are accorded on appeal a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust. Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9; Hayes v. Kennedy, 292 Ala. 362, 294 So. 2d 739.
It is not a matter of whether this Court agrees with the conclusions reached by the trial court, rather the inquiry is whether there was sufficient evidence before the court to justify its conclusion.
We are of the opinion that the judgment was not plainly erroneous or manifestly unjust under the rule announced above. Therefore, the judgment appealed from is due to be and is affirmed.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. | April 3, 1975 |
71ff37f5-b94b-4d3e-af18-d66218d9eeae | Smith v. Gill | 310 So. 2d 214 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 214 (1975)
John SMITH et al.
v.
Nancy GILL et al.
SC 763.
Supreme Court of Alabama.
March 20, 1975.
*215 Smith, Huckaby & Graves, Huntsville, for appellants.
Philip A. Geddes, Huntsville, for appellees.
Robert L. Humphries and Frank P. Ralph, Asst. Attys. Gen., amicus curiae, for Alabama Mental Health Board.
MERRILL, Justice.
This appeal is from a decree in which the trial court ordered "that the Defendants cease and desist from the operation of a half way house for mental patients" at their residence in a residential community.
The halfway house, 3007 Hood Road, is owned by appellants, John and Irene Smith. Appellees, Harold and Nancy Gill, live in a single family dwelling on the adjoining lot east of the Smiths at 3005 Hood Road. Appellees, Howard and Mabel Raney, live across the street at 3010 Hood Road. The Raneys have lived in their house 24 years, the Gills 13 years, and the Smiths since July 1, 1973. These and other homes and apartments are in the Glen'll Farms Subdivision in Huntsville. The lots of all parties contain approximately 2 acres each. The Smith lot has a duplex dwelling on it and prior to its purchase, more than one family occupied the dwelling. The area was zoned as 2-B, a classification permitting multiple family occupancy of dwellings, apartments and boarding houses.
On July 1, 1973, the Smiths entered into a contract with the Madison County Mental Health Board by which they undertook to maintain a transitional care facility for persons who had been committed to and hospitalized in Bryce Hospital, a state hospital for the insane. Dr. William H. Goodson, Jr., Director of the Huntsville-Madison County Mental Health Center, testified that "A Transitional Care Facility, sometimes also referred to as Halfway Houses, is a residence for persons * * * who have been hospitalized for a mental disorder, but who no longer need to be hospitalized and need a place obviously to live in a community." The contract required the Smiths "to provide living facilities and residential care within Madison County, Alabama, for at least ten persons who have a history of psychiatric hospitalization to be designated and assigned by the Board." The Smiths were to receive $261.00 per month for each such person.
The Smiths moved into the house in early July, 1973, and about ten days later nine persons who had been mental patients at Bryce Hospital arrived and began living there.
The bill for injunction was filed in September, 1973, by the Gills, the Raneys and *216 twenty-nine other residents in the subdivision, together with affidavits of the Gills and the Raneys. The bill charged in part that "The presence of a mental facility in Glen'll Farms Subdivision causes plaintiffs hurt, damage and inconvenience for in that the Plaintiffs fear for their safety and their families' safety; the value of plaintiffs' residence is diminished; the use and enjoyment of plaintiffs' property is reduced." The plaintiffs prayed that the Smiths be enjoined "from housing known mentally disturbed persons, mental patients or otherwise maintaining a mental facility or any other facility for known mentally disturbed persons," and for other relief. No request was made for a restraining order or temporary injunction and the cause was heard on November 19, 1973.
The plaintiffs testified as to certain specific abnormal acts of the residents of the halfway house:
(1) One of the residents picked bark from a pine tree which was on the Gills' property.
(2) A resident on the defendants' patio became ill and vomited.
(3) A newspaper was burned by a resident in the Gills' front yard.
(4) A resident was observed urinating in the front yard of defendants' property.
(5) Plaintiff, Nancy Gill, heard voices one morning at 9:00 o'clock in defendants' driveway.
(6) An increase in the number of trucks and delivery type vehicles on the street.
(7) A resident rang the doorbell of the Raneys but left before the door was answered and the same resident came into the Raneys' yard on two occasions.
(8) A resident looked in a neighbor's mailbox on several occasions.
(9) Mrs. Raney had a conversation with a resident who acted "silly."
The Smiths had a daughter 16 and a son 13. Smith operated a nursing home at Fayetteville, Tennessee, and spends the majority of his time there. The mental facility at Huntsville is operated by Mrs. Smith. The Smiths are under no obligation to furnish medical or nursing care; they are not required to supervise or watch the patients, and the Smiths are free to select the location of their facility. It must meet the licensing standards specified in the contract and the Smiths had no voice in the selection of the patients. Some of the patients are taking medications and the failure to take these drugs would result in a reoccurrence of the symptoms of the mental disorder for which they were committed, yet these medications and drugs are self-administered by the patients. There is no supervision to insure that the patients are taking the prescribed medicines, and Dr. Goodson was not aware of any policy to rule out the selection of persons for the halfway house even if they had been committed for acts of violence or sexual deviancy. One of the patients selected to stay with the Smiths was returned to Bryce Hospital because she was unable to participate in the treatment and rehabilitation program.
Mrs. Gill testified that her children, two girls aged 16 and 14, and a boy 11, could not enjoy the facilities of their home "such as sunbathing and this type of thing, due to the fact that this facility is located next to us." She also testified that the actions of some of the patients "has led us to be very frightened and to be concerned for our safety, and even more so regarding the safety of our children."
The court's decree follows:
To be committed to Bryce Hospital requires a judicial determination of insanity. Tit. 45, § 210, Code 1940. Once committed a person may be released in several ways. One is by a certificate of recovery, Tit. 45, § 218. Another is "When, in the opinion of physicians at the hospital, patients are permanently restored to a normal mental condition, they shall be allowed to leave the hospital, and be marked in the records as `discharged.'" Tit. 45, § 219. None of the patients at the Smiths had been given a certificate of recovery or discharged under the quoted provision in § 219. All the Smith patients had been released "on trial" as provided in the second part of § 219. They were subject to being returned without any additional legal process within six months. These people were still mental patients at the time of the trial.
Title 7, § 1081, Code 1940 provides:
In Lauderdale County Board of Education v. Alexander, 269 Ala. 79, 110 So. 2d 911, this court said:
It was held in Laughlin, Wood & Co. v. Cooney, 220 Ala. 556, 125 So. 864, that even though a business (undertaking establishment) is lawful and necessary, by its inherent nature, if located in a residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of residence property, produce material annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable. This was followed in Mutual Service Funeral Homes v. Fehler, 254 Ala. 363, 48 So. 2d 26. On second appeal in Fehler, 257 Ala. 354, 58 So. 2d 770, this court reiterated the rule that no matter how efficiently a funeral home is operated it will not be allowed to locate in an exclusively residential area over the protest of those who reside therein and in the absence of a strong public necessity therefor.
This is the first time the question of location of a halfway house for mental patients, or any other class of people, has been presented to this court.
Appellants Smith rely heavily on Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 218 A.2d 383 (1966), where neighboring property owners sought an injunction against the owner of a dwelling who used it as a boarding house for state prison parolees. The court said:
The court also stated that the plaintiffs "have neither alleged nor offered evidence to prove any specific acts or pattern of behavior which would cause them harm so as to warrant the drastic injunctive relief granted by the court," and that the "fears and apprehensions of the plaintiffs in the present case, based as they are on speculation, cannot justify the granting of injunctive relief." The court concluded:
We note some distinctions between Nicholson and the instant case. There, the use of the house was proposed and no acts of any kind had been witnessed or committed; here, the halfway house had been in operation for two months. There, sex offenders, drug addicts and alcoholics were excluded, but here, they are not. There, the men received an extensive counseling program and guidance by a resident director trained in rehabilitation; here, the people were only housed and fed. There, the men were required to have jobs; here, the patients were free to roam the neighborhood without restraint. Finally, there, the neighborhood was mixed commercial and residential, while here, it was exclusively residential.
In a later case, Arkansas Release Guidance Foundation v. Needler, 252 Ark. 194, *219 477 S.W.2d 821 (1972), the Supreme Court of Arkansas affirmed the issuance of an injunction to enjoin the operation of a halfway house for parolees and prisoners called a "New Life House." The house had been in operation for several months. The Arkansas court followed one of its own cases in which it affirmed the "enjoining the erection of a funeral home in a residential area." The court also distinguished the facts and law in Needler with those in Nicholson, supra.
The facts in the instant case and our law are more in line with the Arkansas case (Needler) and we prefer to follow it rather than the Connecticut case (Nicholson).
We are cognizant of the fact that the opinion in Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala.1971), has placed a burden on the resources of the Alabama Mental Health Board, and that community transitional facilities such as foster homes, halfway houses, room and board facilities, supervised apartment dwellings, etc., will have to be utilized. We are not holding that such facilities are nuisances per se. But in every city there are buildings available in mixed residential and commercial districts where such facilities could be housed.
The general public is entitled to some consideration also. The operation of a transitional facility in an exclusively residential district, and proof of the creation of an atmosphere detrimental to the use of and enjoyment of nearby residential property is subject to be enjoined if protested by owners of residences in the district.
We have not delineated all the evidence but enough is stated to show the problem and to demonstrate that the evidence was sufficient to support the decree of the trial court. We again stress the point that our decision is based on the facts in this particular case.
In argument under assignments of error 8 and 9, it is contended that the decree is "overbroad, uncertain, and vague" in that the only act enjoined is the "operation of a halfway house for mental patients." Appellants object to the use of the words "halfway house." Had this been the only use of the words in the case the point might have had merit. But counsel for both sides used the words, as did some of the witnesses, and the words were used in the Connecticut and Arkansas cases on which each relied. They knew what they were talking about, the trial court understood, and we understand.
Appellants also ask in brief, "Who is a mental patient?" We have used the term in this opinion. As so used, "a mental patient" is a person who has been judicially determined to be insane and has been committed to a mental hospital by a competent court in Alabama, and who has not received a certificate of recovery from the hospital under Tit. 45, § 218, or whose records have not been marked "discharged" under § 219. The assignments of error are without merit.
Assignment 32 charges that the court erred in admitting plaintiffs' Exhibit 2 in evidence. The exhibit was a petition to the city signed by the witness and others in the subdivision complaining about the operation and establishment of the transitional care facility for mental patients. Appellants objected and appellees stated that the purpose was to show, in response to cross-examination about what complaints had been made, that they had complained to the city.
The court said: "For that purpose I will admit it, just the fact that a complaint was made and not as to the truth of it."
In view of this colloquy, we find no reversible error, because even conceding error, it was rendered harmless by the conditions under which the exhibit was admitted.
The other assignments of error are not meritorious.
*220 The testimony was taken ore tenus before the court. When so, every presumption will be indulged in favor of the trial court, and its finding and decree will not be disturbed unless plainly wrong. State v. Simonetti, 273 Ala. 571, 143 So. 2d 444; Parkman v. Ludlum, 260 Ala. 235, 69 So. 2d 434. This principle has been applied in injunction cases even where improper testimony was heard by the court. Simonetti, supra. As already stated, the evidence supported the decree.
Affirmed.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | March 20, 1975 |
d8d49ae5-df6c-4933-ada9-1c05247d28e4 | McCarroll v. State | 312 So. 2d 382 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 382 (1975)
Granville Madison McCARROLL
v.
STATE of Alabama.
SC 1155.
Supreme Court of Alabama.
April 17, 1975.
Rehearing Denied May 22, 1975.
Melvin W. Brunson, Mobile, for appellant.
William J. Baxley, Atty. Gen., and Brent Thornley, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Granville Madison McCarroll was convicted in the Circuit Court of Mobile County of selling heroin. He was sentenced to 20 years imprisonment in the penitentiary. He filed an appeal in forma pauperis with the Court of Criminal Appeals of Alabama. On February 26, 1975, the case was transferred to this court.
On April 19, 1974, a State agent was introduced to McCarroll by King John Stanley, an alleged police informer. After the introduction Stanley left. McCarroll entered the agent's automobile where McCarroll showed the agent a match box containing three capsulesone empty and one containing a substance identified by the State toxicologist as heroin. McCarroll offered to sell the agent 9 capsules *383 for $100. The agent paid McCarroll $100 and took possession of the two capsules. McCarroll said he would supply the remaining 7 capsules at the Mardi Gras Lounge and left with the money paid by the agent. McCarroll never rendezvoused with the agent at the Mardi Gras Lounge.
McCarroll pleaded not guilty and relied on the defense of entrapment. He denied selling heroin to the agent but admitted selling capsules which he said contained nothing more than whole wheat flour. He offered no proof that the capsules contained whole wheat flour, and the toxicologist testified that he found no evidence of whole wheat flour in his examination of them.
During the trial the court sustained objections to efforts by McCarroll to ascertain that King John Stanley was a police informer.
At the conclusion of the trial the court denied a request by McCarroll to charge the jury on entrapment in his oral charge to them. He filed no such written requested charge.
The questions raised on appeal are whether entrapment was a defense whether the trial judge erred in sustaining objections to questions by McCarroll seeking to ascertain that Stanley was an agent of the Mobile Police Department; and, whether the court erred in refusing to charge the jury on the law of entrapment.
The defense of entrapment is not available to a defendant who denies that he committed the offense charged. Rodriquez v. United States, 227 F.2d 912 (1955, CA 5th Cir., Texas). The defense rests on the defendant's admitting the deed but disclaiming the thought. Lindsay v. State, 41 Ala.App. 85, 125 So. 2d 716 (1960).
Here McCarroll denied he sold heroin, the offense with which he was charged, to the State agent. He admitted he sold capsules to the agent, which he contends contained whole wheat flour. While we have not been cited a case involving a similar factual situation decided by this court, we find that in State v. Varnon, 174 S.W.2d 146 (1943, Mo.) the defendant admitted selling "Coke" when the State asserted he sold whiskey without a license, to a decoy. The defendant denied making any illegal sale of intoxicating liquor. Admitting selling "Coke" while charged with selling whiskey illegally was not consistent with the defense of entrapment declared the court. This doctrine was affirmed in State v. Egan, 272 S.W.2d 719 (1954, Mo.). In Egan the defendant placed groceries and whiskey in the same bag. The defendant admitted selling groceries, but denied the charge of selling whiskey illegally.
While the defense of entrapment may be raised when a defendant pleads not guilty, the assumption is that the act charged was committed. Rodriquez. In this case, one of the bases of the defense of entrapmentadmission of the sale of heroinwas absent. Therefore, entrapment was not available to McCarroll as a defense. And, the trial judge did not err in refusing to charge the jury on entrapment. Moreover, since the defense of entrapment was not available to McCarroll, the trial judge did not err in sustaining objections to questions seeking the identity of Stanley as a police agent. In Kilgore v. State, 50 Ala.App. 501, 280 So. 2d 206 (1973) the Court of Criminal Appeals dealt with virtually the same question as presented here. The court stated:
*384 The record shows that King John Stanley played no part in the purchase and sale of the heroin other than introducing McCarroll to the State agent. Consequently, the disclosure of the informer's status was not required under the facts of this case.
We have searched the record and find no error.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | April 17, 1975 |
c31ab7d7-6247-4dc7-9841-0567791ed2f6 | Buskey v. Amos | 310 So. 2d 468 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 468 (1975)
James E. BUSKEY
v.
Mabel AMOS et al.
SC 1020.
Supreme Court of Alabama.
March 27, 1975.
Gray, Seay & Langford, Montgomery, for appellant.
M. R. Nachman, Jr., Montgomery, for appellees.
PER CURIAM.
Plaintiff-Appellant Buskey and Defendant-Appellee Mayer Perloff opposed each other in the race for the Democratic Party's nomination for State Senator, District 33. Perloff won and Buskey attempted to challenge that election. See Perloff v. Edington, 293 Ala. 277, 302 So. 2d 92 (1974).
Buskey later brought this suit requesting injunctive relief to prevent Perloff's certification as a qualified candidate and to prevent his name from appearing on the general election ballot, on the ground that Perloff had not met the residence requirements. The circuit court dismissed the suit for lack of jurisdiction and this appeal was taken. A motion to dismiss the appeal was filed by Perloff. The appeal is dismissed. It is not necessary for this court to determine whether the circuit court had jurisdiction.
It is uncontradicted that Mayer Perloff was certified on November 13, 1974, by Mabel S. Amos, Secretary of State, to have been elected to the State Senate in the general election of November 5, 1974, and that Perloff took the oath of office as Senator from District 33 on November 11, 1974, and presently occupies that seat in the State Senate. Article 4, Section 46, Alabama Constitution of 1901, provides that "The terms of office of the senators and representatives shall commence on the day after the general election at which they are elected * * *."
Article 4, Section 51, Alabama Constitution of 1901, provides, in reference to the legislature of this state, "Each house shall choose its own officers and shall judge of the election, returns, and qualifications of its members."
*469 This court considered the application of Article 4, Section 51, of our state constitution in In re Opinion of the Justices, 254 Ala. 160, 47 So. 2d 586 (1950), wherein it was stated:
In view of this constitutional provision this court is compelled to hold that it lost jurisdiction of this appeal when the appellee became a member of the State Senate.
In all cases involving election disputes, time is of the essence. It has been a policy of the courts of this state to handle such cases speedily before issues become moot, if requested to do so. This fact is attested to by this court's handling of Perloff v. Edington, supra, and the recent case of Hobbie v. Vance, 292 Ala. 367, 294 So. 2d 743 (1974). In the present case the circuit court's judgment was rendered on October 15, 1974. Notice of appeal was given on October 17, 1974, nineteen days before the general election. This case was submitted on briefs (without a request for oral argument) to this court for decision on January 7, 1975.
Because this court lost jurisdiction to hear this case when Mayer Perloff became a member of the Senate, the appellee's motion to dismiss the appeal must be granted. Under our constitution, any challenge to the appellee's qualifications must now be addressed to the Senate itself.
Appeal dismissed.
HEFLIN, C. J., and MERRILL, MADDOX, JONES and SHORES, JJ., concur. | March 27, 1975 |
0be3c3c0-65e5-415f-a738-32bb5146b7d4 | Salmon v. Birmingham Parking Authority | 314 So. 2d 687 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 687 (1975)
Marion H. SALMON et al.
v.
The BIRMINGHAM PARKING AUTHORITY, a public corporation under the laws of Alabama.
SC 1123.
Supreme Court of Alabama.
May 22, 1975.
*688 Sam W. Pipes, Mobile, Stanford J. Skinner, Birmingham, Wesley Pipes, Mobile, for appellants.
Macbeth Wagnon, Jr., John P. Adams, John G. Harrell, John S. Foster, Birmingham, for appellee.
MADDOX, Justice.
The basic question presented is the constitutionality of an Act authorizing a Birmingham Parking Authority to issue bonds to build off-street parking facilities. The Act involved is Act No. 2079, p. 3335, Acts of Alabama, 1971, carried in Vol. 14B, Appendix, Code of Alabama 1940 (Recomp. 1958), as Subdivision 22, §§ 1601(230)-1601(255).
*689 The litigation arose out of the proposed construction of a multi-level parking deck by the Birmingham Parking Authority in the City of Birmingham, the sale of bonds by the Authority to pay construction costs of the facility, and a contract between the Authority and the City wherein the City agreed to make certain payments to the Authority and the Authority agreed to construct the facility and thereafter pay to the City certain surplus revenues from the facility.
The Authority filed this action on November 14, 1974, under the so-called bond validation statute. Act No. 859, Acts of Alabama, 1953, as amended by Act No. 973, Acts of Alabama, 1971, carried as Title 37, Sees. 359(8)-359(15), Code of Alabama, 1940 (Recomp.1958). At the time this suit was filed there was a pending action which had been filed by appellants, Marion H. Salmon and Salmon & Company, Inc., against the Authority and the City contesting the validity of the proposed project and the bond issue.
The defendants in this validation suit were listed as "Taxpayers and Citizens of the City of Birmingham," as provided for in Title 37, Sec. 359(9). Service of process on the "defendants" was by publication in the Birmingham Post-Herald pursuant to the procedure set out in the bond validation statute.
The trial court entered an order on November 14, 1974, setting the bond validation suit for hearing on December 12, 1974. Before the date set for hearing, appellants, Marion H. Salmon and Salmon & Company, Inc. filed motions to dismiss. These motions were denied. Appellant, Hendon and Company, Inc. also filed a motion to dismiss the bond validation suit. Ultimately, the court denied Hendon's motion to dismiss also.
Prior to the hearing on the merits of the bond validation suit, the City of Birmingham asked leave to intervene and the court permitted the intervention. Earl C. Morgan, as District Attorney for the Tenth Judicial Circuit was served as required by Title 37, Sec. 359(10). He filed an answer on behalf of "taxpayers and citizens."
After trial, the court found the issues in favor of the Authority and validated the bond issue.
Appellants argue that Act No. 2079 is unconstitutional because: (1) it is a local act which was not advertised according to Section 106 of the Constitution; (2) the Act contains a double classification since the title makes it applicable to cities with populations of 300,000 or more, and Section 8 makes it applicable only to cities having an elected city council; (3) Section 22 of the Act denies taxpayers and citizens their right to due process of law because the provisions relative to notice are insufficient; and (4) the Act violates Section 45 in that it contains more than one subject. We discuss each point.
Clearly, Act No. 2079 is a so-called "general law with local application," but of similar Acts this Court has time and again said that:
*690 Act No. 2079 authorizes cities having a population of 300,000 or more inhabitants according to any federal census to create parking authorities for the purpose of providing adequate public off-street parking in those cities. In the recitals of the Act, the Legislature has made very specific findings concerning the need for public parking facilities in the cities of the size to which the Act applies, and these findings are entitled to weight by this Court.
But even if the Legislature had made no statement of its findings and the purpose of the Act, we are aware that the revitalization of the downtown urban areas of cities over 300,000 population is tied substantially to the availability of convenient offstreet parking.
The intervenors refer us to four Acts passed by the 1971 Legislature (Acts No. 2195, 437, 892 and 1568) which pertain to public parking in cities ranging in size from (not less than 37,000 nor more than 41,000), (not less than 40,000 nor more than 50,000), (not less than 135,000 nor more than 185,000), and (300,000 or more) respectively.
Appellants claim that each of the four Acts listed which were passed during the same legislative session contain the same general provisions for off-street parking in the cities to which they are applicable, and each is applicable to only one city in the State of Alabama. Appellants contend that a reading of the legislative finding contained in each of the Acts is strikingly similar, and "indeed is almost verbatim from one act to the other."
Appellants conclude their argument, saying:
We cannot accept appellants' argument as applied to Act No. 2079. We here deal only with the constitutionality of the Act in question. The validity of these other Acts is not in issue here, and this opinion does not address these other laws.
The appellants' argument is similar to an argument of "impeachment by association" presented to and rejected by the Court in State ex rel. Crenshaw v. Joseph, 175 Ala. 579, 57 So. 942 (1911). In that case, an attack was made upon an Act of the Legislature providing for the creation of a commission form of government in cities having a population in excess of 100,000
*691 (which the Court judicially knew applied only to the City of Birmingham). As the party attacking that Act pointed out, at the same session, the Legislature adopted four Acts on the subject of the commission form of government for municipalities, one applying to cities having a population between 25,000 and 50,000 (City of Montgomery), one applying to cities not otherwise covered by the classifications (City of Mobile), and finally one that was the subject of the litigation. On the basis of that legislative situation, the opponent of the Birmingham Act argued that, taking all of these Acts together, it was evident that each was intended to meet local conditions and did not respond to the needs of cities in the applicable class. With respect to this argument, the Court said in State exrel. Crenshaw v. Joseph, supra:
Appellants argue that Act No. 2079 contains a double classification, i. e., cities of (1) more than 300,000 population (2) having an elected city council. Appellants contend that the double classification occurs by virtue of the last paragraph of Section 8 of the Act, which provides:
The essence of their argument is that Section 8, by providing that the director may be removed from office "by the governing body" in the same manner and on the same grounds as provided for in Section 451, Title 37, Code of Alabama, 1940, for removal of officers appointed by a City Council, makes the Act applicable only to cities having a council form of government under Title 37. Double classification, if present, is fatal to the constitutionality of an act. This Court so held recently. Jefferson County Board of Health v. City of Bessemer, Ala., 301 So. 2d 551 (1974). We do not find double classification here, however.
Section 8 confers upon the "governing body" the power of removal, and the term "governing body" is defined in Section 3 of the Act to mean "the body in which the general legislative powers of the city are vested." There is no suggestion here, nor in any other portion of the Act, that, in order to be subject to the provisions of the Act, a city need have a council form of government.
The notice provisions deny taxpayers and citizens their right to due process of law.
Appellants claim that Act 2079 is also unconstitutional as it includes in Section 22 *692 provisions which effectively deny the taxpayers and citizens their right to due process of law. Appellants say that the objectionable portion of Section 22 is as follows:
In short, appellants assert that Section 22 of Act No. 2079 renders that Act objectionable on due process grounds because of the provision requiring that actions challenging the validity of bond issues of the Authority be commenced within thirty days following the first publication of the notice of adoption of the bond resolution for two consecutive weeks "in a newspaper that is customarily published in this State not less than five days in each calendar week and distributed in the county in which is located the principal office of the Authority."
The trial court found Section 22 "does not, in its general effect or as applied particularly to this cause, deny any person. . . due process . . ." [Emphasis added.]
As applied to the facts of this case, the consideration of Section 22 is almost academic. The Authority, in presenting its case, did not prove or assert the publication of any notice as provided for in Section 22 and has not pleaded any such publication in bar to the participation of any party in this or any other litigation. Stated otherwise, the relief sought by the Authority is not premised upon, and is in no way dependent upon, the constitutionality vel non of the provisions of Section 22.
We do not deem it appropriate to discuss whether a taxpayer or citizen might have a valid constitutional argument under a different fact situation.
Appellants have listed nine provisions of Act 2079 which they contend are not contained in the title of the Act. They have picked out provisions which require the proceedings of the Authority to be recorded *693 in a well-bound book, that each director may receive $25.00 for attendance at each meeting, that the Authority may receive and accept grants, and other similar provisions. The necessary scope of the title of an Act, in order to meet the requirements of Section 45, is stated in Opinion of the Justices, 262 Ala. 345, 349, 81 So. 2d 277, 281 (1955).
The Act this Court upheld in Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So. 2d 903 (1971) is similar to the Act here in question. The discussion in Knight is apt for disposition of appellants' assignment of error on this point.
Appellants contend that the socalled bond validation statute does not comport with due process requirements. Appellants contend the provision for service of process upon the District Attorney and substituted service by publication on the remaining taxpayers and citizens of the organizing subdivision fails to provide adequate notice to them. We disagree. While substituted service may fail to provide for due process of law under certain situations [Cf. Robinson v. Hanrahan, 409 U.S. 38, 93 S. Ct. 30, 34 L. Ed. 2d 47 (1972)], we do not believe that the failure of the Legislature to require personal service on every "taxpayer and citizen" makes the Act void in this bond validation proceeding. Appellants have cited no case which holds that substituted service is inappropriate in a factual situation similar to the one here.
In Castevens v. Stanly County, 211 N.C. 642, 191 S.E. 739 (1937), a taxpayer brought an action to enjoin the issuance and sale of school and general fund bonds. Plaintiff contended that he would be deprived of due process by a decree validating the bonds because the validation statute did not require that his name appear in the summons or complaint, or that the summons be served on him personally. The Court said that in this instance all persons included within a well-defined class could be made parties defendant, and service of summons by publication was sufficient. Similarly, in Lippitt v. City of Albany, 131 Ga. 629, 63 S.E. 33 (1908), plaintiff argued that the validation statute violated due process because it deprived citizens of the right to question the validity of the bonds, although citizens were not made parties to the proceeding, and not served personally, or given reasonable opportunity to know of the pendency of the proceedings. The Court rejected this argument noting that the provisions of the statute for substituted service were not unconstitutional.
Appellants argue that while the bonds sought to be validated recite that they are revenue bonds, the evidence shows that they are not payable solely from revenues, but are payable partly from funds of the City of Birmingham. They claim, therefore, that the bonds were not revenue bonds and were issued without a vote of approval by the qualified voters of Birmingham, as required by Section 222 of Alabama's Constitution.
Section 222 deals with bonds issued by a city. The Authority which issued the *694 bonds here was a public corporation which exists as a separate corporation. Furthermore, Amendment 108 of Alabama's Constitution seems to authorize the procedure followed in this case. Amendment 108 provides:
As we understand the agreement between the City and the Authority, the Authority has agreed to construct a facility and to operate it, and to pay the excess revenues to the City, and the City has agreed to make certain limited funds available to the Authority. No holder of any bond can sue the City for payment of his bond and none of the bonds could, under any interpretation, be deemed to be a general obligation of the City.
Appellants further claim that the provisions of a contract of purchase between the Exchange Company and the Birmingham Parking Authority constitute a lease of the proposed parking deck in violation of Section 11 of Act 2079. Section 11 provides, in part:
Appellants say that under the terms of the agreement between Exchange Company and the Authority, the Authority has granted to the Exchange Company and the Exchange Security Bank the right to lease forty spaces in the northwest corner of the ground floor of the parking deck and has further granted to the Exchange Company and its affiliates and tenants in its proposed building the right to lease 125 parking spaces upon terms no less favorable than the terms spaces are rented to other parkers in the parking deck.
They claim the lease will not provide sufficient revenues in order to comply with Section 11 of Act No. 2079.
Under Section 11, Act No. 2079, the Authority could (1) operate the facility itself, (2) enter into a contract with some person to operate the facility, or (3) lease the facility. The Authority determined that it would operate the facility. We cannot hold that the trial court erred in holding that the contract to lease or rent spaces in the facility was valid.
Having considered all the assignments of error which are substantially argued in brief, we are of the opinion that the judgment of the trial court does not contain prejudicial error.
Since we affirm the judgment of the trial court, it is unnecessary for us to consider appellee's motion to dismiss the appeal.
Affirmed.
*695 MERRILL, BLOODWORTH, ALMON, SHORES and EMBRY, JJ., concur.
HEFLIN, C.J., and FAULKNER, J., concur in the result.
JONES, J., not sitting. | May 22, 1975 |
00825580-c264-495a-b460-1bb91bd41d04 | Redwing Carriers, Inc. v. Stone | 310 So. 2d 206 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 206 (1975)
REDWING CARRIERS, INC.
v.
Tommy Edward STONE.
SC 785.
Supreme Court of Alabama.
March 13, 1975.
Rehearing Denied April 10, 1975.
James D. Harris, Jr., Montgomery, for appellant.
John Grow and Gary P. Alidor, Mobile, for appellee.
MADDOX, Justice.
Plaintiff, Tommy Stone, sued his employer,[1] Redwing Carriers, Inc., for personal injuries he received when he attempted to unload acid from Redwing's tank at a chemical company plant in Pensacola, Florida.
The complaint contained only a wanton count. After trial in Mobile County, a jury returned a verdict for $25,000 in plaintiff's favor. Redwing appeals and assigns several grounds of error. We consider only one which causes us to reverse and remand.
During the course of the trial, Redwing sought to introduce into evidence a copy of a complaint filed by Stone against Agrico Chemical Co., in which Stone claimed Agrico was negligent for failing to provide sufficient water at the site when Stone was unloading the acid. In other words, Redwing contends that Stone was claiming that Agrico's negligence proximately caused his injuries and at the same time claimed Redwing's negligence proximately caused his injuries.
Generally, pleadings are admissible against a party as admissions whether the pleadings were filed in behalf of the party in another action, or upon proof that the pleadings were drawn under the party's direction or with his consent. Cole v. Louisville & Nashville R. R., 267 Ala. 196, *207 100 So. 2d 684 (1957); Elder v. Rawls Sanitorium, 219 Ala. 298, 122 So. 41 (1929); McElroy Law of Evidence in Alabama, Vol. 2, § 181.01, p. 7. In the trial below, Stone's counsel stipulated that the exhibit Redwing sought to introduce was a copy of the suit which Stone filed against Agrico. It was relevant to show that plaintiff Stone had sued another company for the same alleged injuries for which he was suing Redwing.
The court's failure to permit the complaint to be put into evidence constitutes reversible error.
Other grounds of error are argued, but we will not discuss them. It is probable that any error which may have occurred will not occur if there is another trial.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.
[1] Redwing makes no point that the complaint did not allege facts which would show the inapplicability of the workmen's compensation laws. Therefore, we will not address that issue. | March 13, 1975 |
0cf93eb7-ac34-4756-ad45-8da2d65314bd | Ex Parte Bynum | 312 So. 2d 52 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 52 (1975)
In re Ex parte Hugh Otis BYNUM, Jr., (Petition for Writ of Habeas Corpus).
Ex parte Hugh Otis Bynum, Jr.
SC 1117.
Supreme Court of Alabama.
March 6, 1975.
*53 James M. Fullan, Jr., and Roderick Beddow, Jr., Birmingham, for petitioner.
No brief from state.
JONES, Justice.
This is a petition for writ of certiorari to the Court of Criminal Appeals to review and revise the decision of that Court, 54 Ala.App. 729, 312 So. 2d 52 which denied a writ of habeas corpus on behalf of petitioner, Hugh Otis Bynum, Jr.
*54 Bynum was arrested December 6, 1974, on a charge of setting off explosives near a dwelling house in violation of Tit. 14, § 123, Alabama Code. The magistrate issuing the warrant failed to set bail. At a preliminary hearing, December 17, 1974, the Jackson County Court bound Bynum over to await the action of the grand jury without bond. A writ of habeas corpus was sought from the Alabama Court of Criminal Appeals which was denied December 20, 1974. An application for rehearing to that Court was also denied. On January 3, 1975, Bynum filed an application to this Court for a writ of certiorari which was denied; however, petition for rehearing was granted on February 3, 1975. Because of the exigencies of the situation, we forthwith issued a writ of certiorari and fixed bail at $100,000. Our written opinion now follows.[1]
It is petitioner's contention that "capital offenses" involve only those crimes punishable by death; and, because Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), has abrogated the death penalty, there are no longer any capital offenses in Alabama. Therefore, petitioner argues, bail must be granted in his case.
We acknowledge that the United States Supreme Court's decision in Furman declared the death penalty unconstitutional as it was then enforced. The threshold issue is whether, under Furman, bail must be constitutionally granted prior to conviction in "capital" cases even if "the proof is evident or the presumption great." Although this is a case of first impression in Alabama, other jurisdictions have been faced with this question. The majority of these courts have held that offenses which were classified as capital before Furman are still capital, thereby allowing bail to be constitutionally denied for those offenses so classified. People ex rel. Dunbar v. District Court, 500 P.2d 358 (Colo.1972); Wayans v. Wolfe, 30 Conn.Sup. 60, 300 A.2d 44 (1972); State v. Flood, 263 La. 700, 269 So. 2d 212 (1972); Blackwell v. Sessums, 284 So. 2d 38 (Miss.1973); Hudson v. McAdory, 268 So. 2d 916 (Miss.1972); Jones v. Sheriff, Washoe County, 509 P.2d 824 (Nev.1973); In re Kennedy, 512 P.2d 201 (Okl.Cr.1973); Roll v. Larson, 30 Utah 2d 271, 516 P.2d 1392 (1973); State v. Haga, 81 Wash. 2d 704, 504 P.2d 787 (1972).
The rationale of these decisions indicates that the gravity of the offense is the distinguishing feature and not the penalty which may be imposed. Following this interpretation, certain crimes for purposes of bail are still classified as capital regardless of whether the death penalty may be invoked.
Other jurisdictions, however, have held that a person charged with a capital offense now has the constitutional right to bail. State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); Edinger v. Metzger, 32 Ohio App.2d 263, 290 N.E.2d 577 (1972); Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972). See Donaldson v. Sack, 265 So. 2d 499 (Fla.1972).
These courts define "capital offense." as one where the penalty of death may be imposed. Thus the effect of Furman, in setting aside the death penalty, has eliminated what was previously designated as a capital *55 offense. In support of this rationale, these courts further reason that, since the purpose of bail is to insure the defendant's attendance at trial, the elimination of the death penalty has lessened his desire to flee.
It is the opinion of this Court that the classification theory followed by the majority of states considering this issue is sound and should be adopted. In reaching this decision, we are aware of prior Alabama cases which interpreted the term "capital offense" to mean offenses for which the death penalty may be imposed. Lee v. State, 31 Ala.App. 91, 13 So. 2d 583 (1943); Ex parte McCrary, 22 Ala. 65 (1853). But these opinions were not written in the context of Furman (which deals solely with the matter of constitutionally permissible punishment), and their application to the classification of capital offenses for the purposes of bail is not here decisive. The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.
As this Court stated in Ex parte McCrary, supra:
Therefore, in the context here applicable "offenses of so high a grade" still exist in Alabama, and the denial of bail is not violative of Art. 1, § 16, Alabama Constitution.
The conclusion that "capital offenses" still exist is not alone dispositive of this case. Our Constitution provides that not only must the offense be capital in nature for bail to be denied, but also the proof must be evident or the presumption must be great. The decisions of this Court have stated that this latter requirement means that the evidence must be "clear and strong, leading to a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered ..." Ex parte McAnally, 53 Ala. 495 (1875), cited in Lee v. State, 281 Ala. 631, 206 So. 2d 875 (1968), and Lee v. State, 267 Ala. 665, 104 So. 2d 686 (1958).
It is necessary, therefore, for this Court to subjectively review the evidence to determine if the petitioner would probably be convicted of the crime with which he has been charged and be given the maximum sentence allowable therefor. In this regard, two separate issues are presented for our consideration, either of which may be a basis for granting bail: (1) whether the testimony against the petitioner is sufficiently corroborated to be admissible; and (2) if so, whether under the Constitution, as judicially interpreted, the proof is evident or the presumption great that the defendant probably will be convicted and given the maximum punishment allowable.
According to Billy Ray McCrary, Bynum engaged him to hire a "hit man" to kill four men, including Loy Campbell who was later seriously and permanently injured by an explosion in his automobile near his home. This testimony of McCrary, as a coconspirator, would be inadmissible unless corroborated. Additional testimony was given by Lt. Marvin Bryant, *56 a state trooper, who stated he overheard electronic eavesdropping another conversation between Bynum, McCrary, and a third party (another state agent), which the State contends amply indicated that Bynum participated with McCrary in the crime for which he was charged. For obvious reasons, we are constrained not to discuss further the details of the evidence. Because of the conclusion which we later reach with respect to the second issue, we will assume, without deciding, that Lt. Bryant's testimony supplies the necessary corroboration of McCrary to render his testimony admissible. Even so, the "proof is evident or presumption great" test is yet to be met.
Applying that test, from a careful examination of the record, we are not convinced that the quality of proof is sufficient to restrain petitioner of his liberty.
In weighing the testimony (for the limited purpose of bail), we observe that before trial no one can say judicially whether the petitioner is guilty of the crime charged. Nor is it our function to speculate on the State's motive in choosing this particular offense with which to charge the petitioner. Rather, it is our function to review the case in the posture in which it is presented. We now look to that posture as revealed by the record.
The crime charged is based on Tit. 14, § 123, Alabama Code, which, in pertinent parts, provides:
Bynum was not charged under Tit. 14, § 38, for assault with intent to murder (a noncapital offensetwo to twenty years); nor was he charged under Tit. 14, § 124, for dynamiting an automobile (a noncapital offensetwo to ten years), neither of which is a lesser included offense under Tit. 14, § 123. We look only to the offense charged, an in our opinion the presumption of conviction for this specific crime, and the imposition of the maximum sentence allowed therefor, is not so great as to comport with the constitutional exception for the denial of bail.
The judgment of the Court of Criminal Appeals denying petitioner bail is therefore reversed. The prior order entered by this Court directing that petitioner be released from custody upon his furnishing bail in the sum of $100,000 to be approved by the Judge of the Jackson County Court returnable to the Circuit Court of Jackson County in compliance with Tit. 15, § 194, Code of Alabama 1940 (Recomp. 1958), is hereby continued in force, ratified, and affirmed.
Application for rehearing granted: petition for writ of certiorari to the Court of Criminal Appeals granted: petition for writ of habeas corpus granted: and bail fixed at $100,000.
FAULKNER and SHORES, JJ., concur.
HEFLIN, C.J., concurs specially,
MERRILL, BLOODWORTH and MADDOX, JJ., concur in part, dissent in part.
ALMON and EMBRY, JJ., recused themselves.
HEFLIN, Chief Justice (concurring in result):
I agree that the petitioner is entitled to bail, but for a different reason.
The petitioner has been charged with violation of Title 14, Section 123, Alabama *57 Code of 1940, as amended (Recompiled 1958), which subjects to punishment any person "who wilfully sets off or explodes any dynamite or other explosive in, under or dangerously near to * * * any inhabited dwelling house * * *." This statute sets the punishment at death or imprisonment in the penitentiary for not less than ten years, at the discretion of the jury.
Much has been said about the case of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). The full effects of that historic decision by the United States Supreme Court are yet unknown, but one result that is known is that the petitioner in this case cannot be punished by death under Title 14, Section 123.
Section 16 of the Alabama Constitution of 1901 provides:
Similar provisions have been present in our constitutions since statehood.
Since before the War Between the States there have been statutory provisions by which the legislature to some extent explained this constitutional section. One of these statutory provisions is presently found at Title 15, Section 195, Alabama Code of 1940, as amended (Recompiled 1958), and reads as follows:
Title 15, Section 196, Alabama Code of 1940, as amended (Recompiled 1958), is the other statutory provision and it provides:
It is apparent, since the case of Furman v. Georgia, supra, that Title 15, Section 195, cannot in its literal wording apply to the petitioner in this case so as to deny him bail. This section applies only to a defendant "charged with an offense which may be punished by death," and since Furman v. Georgia the crime charged cannot be punished by death. With Section 195 inapplicable, consideration should be given to Section 196; that section applies in "all other cases than those above specified [in Section 195]," and under its terms the petitioner would be entitled to bail "as a matter of right."
Section I of Justice Jones' opinion in this case may herein be referred to as the "majority opinion," since that section has the concurrences of five members of this court in addition to Justice Jones. That section contains the following statement:
Thus, as I understand the majority opinion, it holds that the term "capital offenses" in Section 16 of the Alabama Constitution of 1901, supra, does not mean offenses "which may be punished by death," but means, instead, a "classification whereby crimes are categorized as capital for purposes other than punishment." One of these "purposes other than punishment" is obviously the determination of bail or no bail.
For more than a century, the term "capital offenses," as it is used in Section 16 of the Alabama Constitution of 1901, has been considered synonymous with the term "offense[s] which may be punished by death," *58 as that term is used in Title 15, Section 195, Alabama Code of 1940, as amended (Recompiled 1958).
I am simply unable to read the phrase "offense which may be punished by death" (Title 15, Section 195, Code) as meaning not an offense which may be punished by death, but, instead, as meaning a "classification whereby crimes are categorized as capital for purposes other than punishment." Yet, the phrase in Title 15, Section 195, must be given that meaning in order to avoid the application of Title 15, Section 196, which would admit the petitioner to bail "as a matter of right." The majority opinion clearly holds that the petitioner is not entitled to bail as a matter of right; then the six members of this court who support the opinion part company on the issue of the evidence three holding that he is entitled to bail, but only because the constitutional evidentiary standard for denial of bail is not met, and the other three holding that the evidentiary standard is met.
After studying the opinions of this court construing the constitutional and statutory provisions discussed above, I am compelled to the conclusion that the constitutional term "capital offenses," appearing in Section 16, and the statutory term "offense[s] which may be punished by death," appearing in Title 15, Section 195, mean the same thing and that the meaning of both is "offenses which may be punished by death."
One of this court's earliest cases construing these provisions was Ex parte McCrary, 22 Ala. 65 (1853). The wording of the constitutional provision in 1853 was virtually identical to that of its present-day counterpart. This court stated:
In McCrary the statutory provision considered by the court was apparently a legislative enactment of the constitutional provision itself rather than the explanatory statute now appearing as Title 15, Section 195.
In the case of Ex parte McAnally, 53 Ala. 495 (1875), this court considered both the constitutional provision and the explanatory statute. After quoting both the constitution ("except for capital offenses") and the statute ("offense which may be punished by death"), Chief Justice Brickell stated for the court:
I cannot suppose that this court in 1875 thought a "capital offense" or an offense which "may be punished capitally" was anything other than an offense which might be punished by death. Nor have I *59 found any case before this present one in which this court entertained that thought.
But let us look further at this court's application of these constitutional and statutory provisions. This court has consistently applied the standard adopted in Ex parte McCrary, 22 Ala. 65 (1853), and refined in Ex parte McAnally, 53 Ala. 495 (1875). In McCrary this court stated:
In Ex parte McAnally this court elaborated on the McCrary rule, stating:
This same standard was recited in the case of Trammell v. State, 284 Ala. 31, 221 So. 2d 390 (1969), in the following words:
For other cases applying this standard, see Lee v. State, 281 Ala. 631, 206 So. 2d 875 (1968), ("that he would probably be punished capitally if the law is administered"); Brakefield v. State, 269 Ala. 433, 113 So. 2d 669 (1959); Lee v. State, 267 Ala. 665, 104 So. 2d 686 (1958), ("that he would probably be punished capitally if the law is administered") Adams v. State, 264 Ala. 654, 89 So. 2d 191 (1956), ("that the petitioner would probably be punished capitally"); Strickland v. State, 257 Ala. 585, 60 So. 2d 354 (1952); Holman v. Williams, 256 Ala. 157, 53 So. 2d 751 (1951), and Colvin v. State, 36 Ala.App. 104, 53 So. 2d 99 (1951), ("when the judge hearing the application would sustain a verdict of guilty and the imposition of the death penalty by a jury on the evidence presented in the hearing on the application for bail" and "that he would probably be punished capitally if the law is administered," (emphasis in original statement)).
These two provisions (Section 16, Constitution, and Title 15, Section 195, Code) have never been given separate interpretations. The statutory provision has been referred to as complementary to the constitutional provision, being "an additional, though somewhat vague, guidepost for the judge in considering the matter of allowance or disallowance of bail," Muller v. Bridges, 280 Ala. 169, 190 So. 2d 722 (1966); Colvin v. State, 36 Ala.App. 104, 53 So. 2d 99 (1951). As Title 15, Section 195, of the Code is explanatory of Section 16 of the constitution, it must necessarily be read in conjunction with Section 16. In considering these provisions in the context of the evidentiary standard imposed, this court said in Ex parte Bryant, 34 Ala. 270 (1859), "This section of the Code must be so construed as to make it confirm to the *60 17th [now 16th] section of our bill of rights * * *." That statement is no less true in the present context dealing with the meaning of "capital offenses" and "an offense which may be punished by death." Unless Title 15, Section 195, conforms to Section 16 of the constitution, then Sections 195 and 196 become meaningless. I do not find them meaningless under the numerous decisions of this court.
The majority does not mention Title 15, Sections 195 and 196, in its opinion. If the majority maintains its present position, but attempts to consider these statutory sections, it would have two alternatives, in my opinion. One would be to declare the statutes unconstitutional and overrule the prior decisions of this court which have held that the statutes intermesh with Section 16 of the constitution. The other alternative would be for the majority to give an interpretation to the words "an offense which may be punished by death" so that such words are changed to mean something other than an offense which may be punished by death. I feel either alternative approach would be erroneous.
Because I cannot read the language in Title 15, Section 195, as creating a "classification" of crimes "for purposes other than punishment," and because it is clear that this court has always interpreted the constitutional and statutory language in question to mean exactly the same thing, I must disagree with the majority's holding in this case. I would say that the term "capital offenses" appearing in Section 16 of the Alabama Constitution of 1901 means "offenses which may be punished by death." Therefore, I must conclude that the petitioner is entitled to bail "as a matter of right" under both the constitutional and the statutory provisions.
BLOODWORTH, Justice. (Concurring in part and dissenting in part.)
I concur with the majority opinion authored by Justice Jones as to I.that the pre-Furman classification of "capital cases" are still so classified, allowing bail to be constitutionally denied for those offenses so classifiedif "the proof is evident or the presumption great." As to II.A., I agree with the assumption that the testimony is corroborated if that issue needs to be reached.
I dissent from the holding in II.B.
MERRILL and MADDOX, JJ., concur.
[1] The case was argued orally simultaneously with original submission on motion to dismiss and on the merits. Those members of the Court voting on petition for rehearing who were not present for oral argument have heard the arguments on tape. | March 6, 1975 |
e9064f06-c9bb-473b-ac97-db9528492fdb | Rafield v. Johnson | 314 So. 2d 695 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 695 (1975)
Conrad W. RAFIELD, Jr.
v.
Allen A. JOHNSON, Jr., as Executor, etc., et al.
SC 938.
Supreme Court of Alabama.
May 8, 1975.
Rehearing Denied June 5, 1975.
*696 John S. Foster and W. W. Conwell, Birmingham, for appellant.
William K. Murray, James J. Robinson, Birmingham, for appellees.
BLOODWORTH, Justice.
This is an appeal by defendant Conrad W. Rafield, Jr. from a final and a supplemental decree of the Circuit Court of Jefferson County, rendered in favor of the plaintiffs. We affirm.
The decrees order Rafield to execute an irrevocable trust in favor of his children, Margot Rafield and Conrad W. Rafield, III, the corpus to consist of a five-percent interest in the Birmingham Coca-Cola Bottling Company, a partnership, and the proceeds from the sale of five shares of stock of Crawford Johnson & Company, a corporation. The decrees also require Rafield to account for and pay over to the trust all partnership distributions from the Birmingham Coca-Cola Bottling Company and all dividends from Crawford Johnson & Company received by him from April 12, 1967, until the date of the decree. (A $5,000.00 fee for complainant's attorney was also assessed against Rafield as part of the court costs.)
The corpus of the trust came to Rafield as a gift in April, 1967, from Mr. and Mrs. Allen A. Johnson, Sr., the parents of Caroline Johnson Rafield, Rafield's former wife. The trust indenture which Rafield was ordered to execute for the benefit of his children was prepared in December, 1968, by Rafield's attorney at Rafield's request.
Plaintiffs, Mrs. Allen A. Johnson, Sr., Allen A. Johnson, Jr., and First National Bank of Birmingham, brought this action to enforce the alleged trust as executors of the estate of Allen A. Johnson, Sr., deceased. Mrs. Allen A. Johnson, Sr., also sues individually and as next friend of her grandchildren, the minor plaintiffs, Margot Rafield and Conrad W. Rafield, III. The First National Bank of Birmingham also sues as named trustee of the written trust indenture.
The issue tried and presented to the trial court, sitting without a jury, was whether the gift of the stock and partnership interest to Rafield from Mr. and Mrs. Allen A. Johnson, Sr., was absolute or whether it was conditioned upon Rafield's express promise to place the property in an irrevocable trust for the benefit of his children, the Johnsons' grandchildren.
In his final decree, the trial judge expressly found, inter alia:
*697 In the supplemental decree, the court found, inter alia:
On this appeal, the sole issue raised by Rafield's assignments of error, and the arguments addressed thereto, is whether or not the evidence is sufficient to support the findings of fact upon which the trial court's decree is based. No contention is made that a gift of personal property cannot be subject to an oral condition or that an oral condition such as the one in the instant case cannot be specifically enforced.
At oral argument, counsel for Rafield contended that the judgment did not conform to the pleadings. Regardless as to whether this is true or not, the judgment is supported by the evidence. No objection to evidence outside the scope of the pleadings has been called to our attention. Thus, it would appear that the issues presented by the evidence and decided by the trial judge were tried with the implied consent of Rafield. Under these circumstances the failure, if there be such, of the evidence to conform to the pleadings does not affect the result of the trial of these issues. Rule 15(b), A.R.C.P.
The instant lawsuit arose out of the following factual context.
In April, 1967, while Rafield and the Johnsons' daughter Caroline were still married, the Johnsons invited them to their home for dinner. At this time the Johnsons informed the Rafields that they were going to give Conrad W. Rafield, Jr., five shares of stock in Crawford Johnson & Company and a five-percent interest in the Birmingham Coca-Cola Bottling Company, three shares and three percent from Mrs. Johnson and two shares and two percent from Mr. Johnson.
These companies own the local Coca-Cola franchise and operate related businesses. The businesses were founded by Crawford Johnson, Sr., who had two sons, Crawford, Jr., and Allen, Sr. Forty percent of the business passed to each son and the remaining 20 percent to a family in Tennessee. The ownership ratio between Crawford, Jr., family and Allen, Sr., family remained the same until Rafield received his stock and partnership interest.
Subsequently, a five-share stock certificate naming Conrad W. Rafield, Jr., as owner, was delivered to Rafield at his company office, and the partnership books were changed to reflect his five-percent interest therein.
In June, 1970, the Rafields were divorced for the third and final time. In early 1973, Rafield sold the five shares of stock to one James Lee, the chief competitor of Crawford Johnson & Company and the Birmingham Coca-Cola Bottling Company. This lawsuit followed. [Lee was originally a defendant but was dismissed when he agreed to sell the stock to the estate of Allen Johnson, Sr.]
To support the findings of the trial court, the appellees rely principally on the testimony of Mrs. Allen Johnson, Sr., Caroline Johnson Rafield, and attorney William Bew White.
Mrs. Johnson and Mrs. Rafield both testified that on the night the Johnsons told the Rafields of their intention to make the gift, Rafield expressly agreed that as a condition of the gift, he, Rafield, would put the property in an irrevocable trust for *698 the benefit of his children, Margot and Conrad, III.
Caroline Rafield also testified that, after the gift was made, her former husband stated on numerous occasions that he was going to create the trust and on one occasion told her that he had done so.
Mrs. Allen A. Johnson, Sr., recounted a conversation with her former son-in-law (in early 1973 after the death of Allen Johnson, Sr.) in which Rafield asked her for a loan and told her that without the loan he would have to sell the stock although it was not his to sell.
Attorney William Bew White and his law firm have represented the Johnson family companies, the members of the family, and company employees for many years. He testified that in December, 1968, he prepared an irrevocable trust indenture at Rafield's request which was never executed by Rafield. The trust indenture named First National Bank of Birmingham, as trustee, and Margot Rafield and Conrad Rafield, III, as beneficiaries. The trust corpus was the Crawford Johnson & Company stock and the Coca-Cola partnership interest.
The trust indenture was found by the trial court to contain the terms to which Rafield agreed with Mr. and Mrs. Allen Johnson, Sr., and is incorporated in the decree. It is the trust indenture which Rafield has been ordered by the court to execute. The trial judge found, inter alia:
Rafield appears to contend that the alleged condition on the gift was trumped up by the Johnson family and company officials in 1973 to regain control of the stock and the partnership interest when they discovered Rafield had sold the stock to Coca-Cola's number one Birmingham competitor.
Rafield argues that the testimony of the plaintiffs' witnesses is self-serving and is not supported by the conduct of the witnesses between the date of the gift in 1967 and the date suit was filed in 1973.
The oral testimony in the instant case is conflicting. The testimony of plaintiffs' witnesses directly supports the express findings of fact made, and conclusions reached, by the trial court. The testimony of defendant Rafield and reasonable inferences to be drawn therefrom, as well as testimony of other witnesses and the documentary evidence would tend to contradict the trial court's findings.
Our rule is that when the evidence is heard ore tenus, every presumption will *699 be indulged in favor of the trial court's findings of fact, which will not be disturbed on appeal unless plainly and palpably erroneous. Baldwin v. Odom, 291 Ala. 129, 278 So. 2d 713 (1973). This rule is especially applicable when, as here, the oral testimony of witnesses is in direct conflict and some of the testimony supports the trial court's findings. Nelson Weaver Mortgage Co. v. Dover Elevator Co., 283 Ala. 324, 216 So. 2d 716 (1968).
Nevertheless, Rafield argues that when the factual issue is the existence vel non of an oral condition of trust on what otherwise appears to be an absolute transfer, the evidence must be clear and definite, leaving no reasonable doubt as to the existence of the trust condition, citing Hall v. Hall, 280 Ala. 275, 192 So. 2d 727 (1966). In Hall, supra, the issue was whether a payment by a man to his estranged wife was an absolute gift or whether the gift was conditioned on the wife's promise to hold the payment in trust for their minor child. On conflicting evidence, the trial judge found the existence of the oral condition of trust. On appeal, the trial court's decree was affirmed on the basis of the above stated ore tenus rule. In her rehearing application, the appellant contended that the appellee's evidence failed to meet the burden of proof required in actions to enforce an oral trust of personalty. In denying the application for rehearing, the court held:
In the instant case, the trial judge concluded his findings of fact with the following:
Just as the Court said in Hall, supra, we are unwilling to say that the trial court's evaluation of the evidence failed to meet the test applicable to cases of this type. Thus, it is that the judgment must be, and is, affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL, MADOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.
BLOODWORTH, Justice.
Appellant contends in application for rehearing that we were mistaken in our opinion when we alluded to Rule 15(b), A.R.C.P., because this case was tried in equitynot under the new rules. Therefore, it is argued there could be no "implied consent" by Rafield to try issues outside the pleadings and the case ought to be reversed because the judgment did not conform to the pleadings. Due to able counsel's earnest insistence, we will answer this contention.
Although the trial judge did state at one point in the record: "I'm trying *700 this case under the Equity Rules," he did rule on the admissibility of evidence throughout the trial. Thus, Tit. 7, § 372(1) [the so-called "Lazy Lawyers Rule"] was not followed. Rudicell v. Rudicell, 262 Ala. 41, 77 So. 2d 339 (1955). What did the trial judge mean by his assertion?
Rule 86, A.R.C.P., expressly provides that the new rules apply to all actions pending on the effective date of the act, July 3, 1973except when "in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies." We find no ruling of the trial court so holding and must therefore conclude that the rules did apply. At one point in the record, the trial judge commented in ruling adversely to appellant on his motion to realign, viz.:
Moreover, appellant's own counsel invoked the aid of Rule 34, A.R.C.P. by filing several motions requesting the production of numerous documents, the aid of Rule 36, A.R.C.P., by filing a motion to shorten the time for answers to requests for admissions and the motion to realign the parties.
There being no merit, in our opinion, in this or the other contention argued on rehearing, the application is overruled.
Opinion extended.
Application for rehearing overruled.
All the Justices concur, except JONES, J., not sitting. | May 8, 1975 |
f9662afb-70e4-4916-b566-eb0cb584b876 | Smith v. Alabama Dry Dock & Shipbuilding Co. | 309 So. 2d 424 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 424 (1975)
Harry H. SMITH et al., etc.
v.
ALABAMA DRY DOCK & SHIPBUILDING CO., a corporation.
SC 926.
Supreme Court of Alabama.
March 6, 1975.
Cunningham, Bounds & Byrd and Harry H. Smith, Mobile, for appellants.
*425 C. A. L. Johnstone, Jr., and William H. Hardie, Jr., Mobile, for Alabama Dry Dock & Shipbuilding Co.
M. A. Marsal, Mobile, for appellees, D. J. Maloney and others.
ALMON, Justice.
Alabama Dry Dock & Shipbuilding Company, a corporation, filed a bill of complaint in equity seeking a declaratory judgment upholding a proposed retirement plan for the non-bargaining employees of the corporation.
Harry H. Smith, Gregory L. Smith and Frank M. Ladd, Jr., were made parties respondent, individually and as representatives of a class consisting of all holders of common stock of Alabama Dry Dock & Shipbuilding Company. The action of the trial court in ordering Smith, Smith and Ladd, without notice, to be party respondents in a representative capacity under Alabama Equity Rule 31 is claimed as error. Due to our holding in this case (that a justiciable controversy was not presented), it will not be necessary to address ourselves to that question.
While suit was in progress in the trial court, the Alabama Rules of Civil Procedure became operative. Thus, hereinafter we shall refer to appellee, Alabama Dry Dock & Shipbuilding Company, as plaintiff and appellants, Smith, Smith and Ladd, as defendants. Intervener D. J. Maloney, et al., individually and as representatives of a class consisting of employees of plaintiff eligible for participation in the proposed retirement plan, take the same position on appeal as the plaintiff.
The pertinent portions of the complaint are:
"1. The Company is a corporation duly organized and existing under the law of the State of Alabama with its principal place of business in Mobile County, Alabama.
"2. Each of Respondents Harry H. Smith, Gregory L. Smith and Frank M. Ladd, Jr., is over the age of twenty-one years, of sound mind and a resident of Mobile County, Alabama; and each of said Respondents is a holder of common stock of the Company, the said Harry H. Smith being the holder of 2,279 shares thereof, the said Gregory L. Smith being the holder of 328 shares thereof, and the said Frank M. Ladd, Jr., being the holder of 1,307 shares thereof, all according to the records of the Company.
"3. On November 21, 1972, the Board of Directors of the Company adopted a resolution by which a Retirement Plan for Non-Bargaining Employees of the Company, effective January 1, 1973, was adopted subject to approval of the stockholders of the Company at a special meeting of stockholders to be held on January 30, 1973 (Appendix I of Exhibit `A'), and thereafter on the same date the Board of Directors of the Company adopted a second resolution providing in substance that subject to approval by the stockholders of the Company of the said proposed Retirement Plan and effective from and after close of business December 31, 1972, the Company shall discontinue the existing practice of paying premiums on life insurance for employees eligible for the proposed Retirement Plan for Non-Bargaining Employees after any such employee shall have retired as an employee of the Company and further that subject to approval of the proposed Retirement Plan the Company shall discontinue making any further contributions to an existing Profit Sharing Retirement Plan originally effective June 30, 1946, on behalf of any and all employees who shall have become eligible for membership in the said Retirement Plan for Non-Bargaining Employees (Appendix II, Exhibit `A'). A notice of said special stockholders' meeting was duly given to the stockholders of the Company and there was sent with the said notice to each stockholder a proxy statement describing the proposed Retirement Plan for Non-Bargaining Employees of the Company, the reasons for the proposal to adopt the same, the estimated cost thereof to the Company and information about certain existing retirement *426 and compensation plans, together with other information required for such proxy statements and together with Appendix I and Appendix II thereto setting forth the resolutions of the Board of Directors referred to hereinabove, all of which is hereto attached, marked Exhibit `A' and incorporated herein as fully as if set forth herein and the Company avers that the facts set forth in said Exhibit `A' are true and correct.
"4. At the said special meeting of stockholders of the Company held on January 30, 1973, there were present in person or by proxy the holders of 122,988 shares of the common stock of the Company out of a total of 143,745 shares of stock outstanding and entitled to vote at said meeting thereby constituting a quorum for the transaction of business in accordance with the by-laws of the Company. At said meeting upon motion duly made and seconded for the approval of the said resolution of the Board of Directors adopting the Retirement Plan for Non-Bargaining Employees of the Company there were 110,105 shares of common stock of the Company voted in favor of the motion, and 12,883 shares of said stock voted against the motion so that the said motion was carried by more than a majority in accordance with the by-laws of the Company.
"5. The Directors of the Company received a letter from Respondent Harry H. Smith dated January 25, 1973, copy of which is hereto attached, marked Exhibit `B' and hereby made a part hereof. At the said special meeting of stockholders of the Company on January 30, 1973, Respondent Gregory L. Smith, son of the said Harry H. Smith, spoke against the said motion citing substantially the same objections as those set forth in Exhibit `B'. Respondent Frank M. Ladd, Jr., has otherwise indicated to a representative of the Company his opposition to the proposed Retirement Plan for Non-Bargaining Employees on substantially the same grounds as set forth in Exhibit `B' hereto. At said special stockholders' meeting the said Harry H. Smith, Gregory L. Smith and Frank M. Ladd, Jr., voted or caused to be voted the said number of shares held by each of them against the said motion for approval of the adoption of the said Retirement Plan. The Company has not received information of any question or objection as to the legality of said Retirement Plan for Non-Bargaining Employees of the Company by any of the other stockholders of the Company who voted against the approval of said Retirement Plan, or by any other stockholders of the Company.
"6. On January 30, 1973, after the conclusion of the said special meeting of stockholders, the Company transmitted to newspapers of general circulation in Mobile, Alabama, a `Press Release,' copy of which is hereto attached, marked Exhibit `C' and made a part hereof and a copy of the same was on said date mailed by United States mail, postage prepaid, to each stockholder of record of the Company. The text of a resolution set forth in said Exhibit `C' is a true and correct copy of a resolution duly adopted by the Board of Directors of the Company at a special meeting thereof on January 30, 1973, after the close of the said special meeting of stockholders of the Company on said date and the said resolution of the Board of Directors now remains in full force and effect without modification; and the text of said last mentioned resolution is incorporated herein as if set forth at length herein.
"7. The Company avers and contends that the adoption of said Retirement Plan for Non-Bargaining Employees of the Company as aforesaid is a legal corporate act regardless of the opposition thereto by the holders of a minority of the shares of stock of the Company but Respondents deny this and have indicated that the legality of any payments made by the Company in accordance with the provisions of said Retirement Plan will or may be contested by Respondents or some of them. The Company does not wish to submit the Company to risk of liability in lawsuits on such *427 subject and is withholding making payments on account of said Retirement Plan for Non-Bargaining Employees pending final adjudication by a court of competent jurisdiction that the participation of the Company in said Retirement Plan is legal and valid. Complainant avers that the said controversy is one upon which Complainant is entitled to have a declaratory judgment under the laws of the State of Alabama.
"8. There are approximately 680 persons or parties who are the holders of record of the outstanding shares of common stock of the Company who may have some interest in the outcome of this proceeding and of these there are approximately 37 persons who voted or caused their shares of stock to be voted against approval of the adoption of the said Retirement Plan at the said special meeting of stockholders of the Company, and each said class of stockholders is so numerous as to make it impracticable to bring them all before the Court as parties in the proceeding. Complainant avers that the Respondents named hereinabove will fairly insure the adequate representation of all of the stockholders of the Company who may make or support the contentions made by the Respondents as aforesaid; and that there are common questions of law and fact affecting the rights of all stockholders of the Company who may make such contentions and a common relief is hereby sought as to all of such persons."
The defendants' motion to dismiss challenged the complaint for failure to state a justiciable controversy. This motion was denied. The defendants then filed a motion for summary judgment with supporting affidavits. This motion was also denied. A cross motion for summary judgment with supporting affidavits and other papers filed in the cause was granted by the trial court. The effect of granting this motion was to hold valid and legal the plaintiff's proposed retirement plan. Motion for new trial was denied.
There must be a bona fide existing controversy of a justiciable character or the court is without jurisdiction. City of Mobile v. Scott, 278 Ala. 388, 178 So. 2d 545. Thus, the lack of a justiciable controversy may be raised either by a motion to dismiss, Rule 12 ARCP, or a motion for summary judgment, Rule 56 ARCP.
It is conceivable that in some cases a justiciable controversy would not appear from the pleadings at the time a motion to dismiss is filed and ruled upon; yet such a controversy might develop when the court has additional facts before it on summary judgment.
We think it advisable in this case to review the entire record as did the trial judge on summary judgment. To establish a precedent otherwise could in the future, as indicated in the preceding paragraph, work an injustice. This however should not be construed to mean, under the circumstances mentioned, that a trial court could be put in error for granting a motion to dismiss when the complaint failed to state a justiciable controversy. A somewhat analogous situation was pesented in McGruder v. B. & L. Construction Company, Inc., 293 Ala. 354, 303 So. 2d 103. More to the point is the case of Crowell v. Baker Oil Tools, D.C., 49 F. Supp. 552, where the court said:
See also United States Hoffman Machinery Corp. v. Richa, D.C., 78 F. Supp. 969.
We now turn to the jurisdictional question of whether a justiciable controversy was shown. Plaintiff's counsel *428 strongly contend in brief that the position taken by Harry H. Smith constitutes a justiciable controversy. They rely heavily on the following letter written by Mr. Smith:
"TO THE DIRECTORS ALABAMA DRY DOCK AND SHIPBUILDING COMPANY MOBILE, ALABAMA
"Gentlemen:
"Because of my health, I am unable to attend the special meeting of the stockholders called for Tuesday, January 30, 1973, so I am writing you my objections to the proposed retirement plan.
"On page 4 of the notice of the stockholders meeting, I find the following statement: `Based on data estimated as of January 1, 1973, the actuary has calculated normal contributions payable by the Company for current service of Members at 3,41% of payroll. * * * Contributions made payable by the Company for prior service of Members since March 1, 1962, approximate $98,866 ($4,125 for officers and employee-directors and $94,741 for other employees) per annum, such amounts being the level payments required to liquidate the estimated prior service cost of $1,518.921.'
"The Supreme Court of Alabama and all other courts as far as I have been able to find from a thorough search of the law hold that the directors do not have the power to make increased payments for prior services rendered and to do so constitutes a misappropriation of corporate funds which cannot be ratified except by every stockholder. In other words, if this resolution is passed, the directors will be personally liable for all the amounts paid for past services as stated in the notice, and the fact that every stockholder except the holder of one share approves will not relieve them of liability.
"Mr. Charlie Johnstone stated to me that he did not consider it a payment for past services, but his statement is contrary to the statement in the notice as quoted above and is, in my opinion, absurd. It definitely does constitute payment for prior services and therefore, is beyond the power of the directors or the stockholders if one stockholder objects. The directors who are responsible for this resolution are and should be held personally liable for all illegal payments.
"The fact that the notice expressly states that the payments are for prior service for Members since March 1, 1962, should be conclusive in any court and the liability of the directors clear.
"I am writing this letter because I feel you should know what liability you are assuming if you persist in the passage of this resolution.
"I have numerous other objections which I think are valid and which will be raised in contesting the legality of any payments made, but the foregoing reason is so clear that it should be sufficient."
*429 Defendants dispute that the above letter creates a justiciable controversy but, nevertheless, counter with affidavits from which we quote in pertinent part:
A justiciable controversy does not exist merely because a stockholder disagrees with management or votes his stock contrary to management's position. While there may be some equivocation in Harry H. Smith's statements, nevertheless, they, so far as pertinent here, refer to matters which may or may not occur in the future. The complaint itself alleges that the "Retirement Plan will or may be contested by Respondents or some of them." Allegations which merely show that the plaintiff anticipates such a controversy may arise are not sufficient to invite judicial declaration of rights. Saenger Theatres Corp. v. McDermott et al., 237 Ala. 489, 187 So. 460; Theater Company v. Manning et al., 236 Ala. 670, 185 So. 171; Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450.
It is also pertinent we think that the retirement plan is not in effect. The board of directors of plaintiff passed a resolution stating that the plan would not be put into operation until court approval was obtained. It has long been the law of this State that courts will not decide moot, abstract or hypothetical questions or render purely advisory opinions. Many cases to this effect are collected in the Alabama Digest under Declaratory Judgment. To rule otherwise we think would cause a deluge of court litigation concerning the operation and future action of private corporations.
The plaintiff has relied primarily on the following cases: Klein v. Jefferson County Building and Loan Ass'n, 239 Ala. 460, 195 So. 593; Fore v. Alabama State Bridge Corporation, 242 Ala. 455, 6 So. 2d 508; Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273; Lang v. City of Mobile, 239 Ala. 331, 195 So. 248; Alabama-Tennessee Natural Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So. 2d 619.
While in some instances these cases are persuasive, we nevertheless are of the opinion that they fall short of sustaining its position. These cases involve the construction or constitutionality of statutes or involve matters of substantial public interest. They stand for the proposition that controversy touching the legality of acts of public officials or public agencies challenged by parties whose interests are adversely affected is one of the favored *430 fields for declaratory judgment. While we regard the holdings of these cases as sound, we do not think they are applicable to private matters not involving public interest. Here, we are dealing with a proposed future act of a private corporation.
Since the judgment of the trial court was void because of the lack of a justiciable controversy between the parties and since a void judgment will not support an appeal, it follows that the appeal is dismissed. City of Mobile v. Scott, 278 Ala. 388, 178 So. 2d 545; State ex rel. Baxley v. Johnson, 293 Ala. 69, 300 So. 2d 106.
In view of our decision, mandamus is appropriate, although perhaps unnecessary. Wood v. Casualty Reciprocal Exchange, 291 Ala. 243, 279 So. 2d 506; Light v. Harrison, 289 Ala. 1, 265 So. 2d 437. The defendant's petition for writ of mandamus is granted and the trial court is directed to vacate its May 30, 1974, summary judgment.
Appeal dismissed; writ granted.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. | March 6, 1975 |
a4dfc510-6b89-486a-af93-ada09051ea5d | Provident Life & Accident Insurance Co. v. Hanna | 311 So. 2d 294 | N/A | Alabama | Alabama Supreme Court | 311 So. 2d 294 (1975)
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY
v.
Mitchell Ordean HANNA et al.
SC 674.
Supreme Court of Alabama.
April 10, 1975.
Robert S. Lamar, Jr., Montgomery, for appellant.
Frank W. Riggs, Montgomery, for appellees.
SHORES, Justice.[*]
This appeal is from a final decree rendered in an action for declaratory judgment, involving a controversy among the claimants to the proceeds of life insurance policies on the life of Harry O. Hanna. The action was initiated by the minor children of the deceased, and named as respondents Provident Life and Accident Insurance Company (hereinafter referred to as Provident) and Marlene Hanna, widow of the insured. Subsequently, on motion of Provident, Frank W. Riggs, as administrator of the estate of Harry O. Hanna, was added as a party.
The complaint sought a declaration of rights under a life insurance policy issued by Provident, which named Marlene Hanna as primary beneficiary and the children of the deceased as alternate or contingent beneficiaries. The allegations were that *295 the primary beneficiary had wrongfully and intentionally caused the death of the insured by shooting him with a pistol on December 9, 1972, and both she and the children claimed the proceeds of that policy.
In answer, Provident admitted that it had issued the life policy that was the subject of the complaint, that it did not contest its obligation to pay the amount thereof, and by reason of conflicting claims to the proceeds, paid the amount into court and asked it to determine the rightful claimant. That life policy is not involved on this appeal.
By way of counterclaim, Provident alleged that in addition to the life policy, the subject of the complaint, it also had issued a group policy providing health and accidental death benefits in an additional amount of $25,000, which covered Harry O. Hanna at the time of his death. The widow, Marlene Hanna, was named as beneficiary.
Provident claimed that the insured's death was not accidental and that it was not liable under that group accident policy, and asked that the court so declare.
It is the group accidental policy with which we are concerned here. It provides:
"the Insurance Company will pay to the beneficiary.. . .
"Loss of Life . . . The Principal Sum
After trial was had, a final decree was entered finding that the death of Harry O. Hanna was accidental under the terms of the policy, and:
Provident appealed and argues that the court erred in finding:
1. That the death of Harry O. Hanna was accidental under the terms of the policy;
2. That the death was accidental within the definition of the term "accidental" as defined by this court in Aetna Life Insurance Company v. Beasley, supra;
3. That the administrator of the estate of the insured was entitled to the proceeds of the policy; and finally
4. That the court erred in denying appellant's motion for findings of fact.
In a number of cases, this court has established criteria by which to test the facts for determining whether a death is accidental. The following statement is made in O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 462, 168 So. 580 (1936), and approved in Aetna Life Insurance Company v. Beasley, supra:
Provident has no quarrel with this general definition, but contends that other rules spelled out in O'Bar are controlling. Specifically, it relies on the following statement made in that case:
Provident argues the last stated rule taken from O'Bar controls in this case. It insists the evidence requires a finding that Mr. Hanna voluntarily put his life at stake and deliberately took the chance of getting killed.
In O'Bar, where the evidence was uncontradicted, this court said:
Unlike the situation found in O'Bar, the evidence in this case is conflicting. Without detailing all of it, there clearly was sufficient evidence to support the finding made by the trial court that the death was accidental, as defined in our cases. The evidence was in part, that Mr. and Mrs. Hanna had been married but a short time, that the marriage was a stormy one, marked by frequent arguments and threats of violence by each partner, that Mrs. Hanna had remarked to various persons that she was going to leave her husband. Some testified that she had stated on occasion that she was going to kill him, a statement which she denied.
On the night of his death, she and her husband had been to a party and had been observed in heated argument with each other. One witness testified that on the night of Hanna's death he had seen two people in the parking lot of the club where the party was held, but could not identify Mrs. Hanna as one of them, and had seen the woman hitting the man as he attempted to open the automobile door. Mrs. Hanna testified that she and her husband had an argument at the club, that it persisted on the way home, that Mr. Hanna had beaten her en route to their home, threatened to kill her, as he had in the past, and continued to beat her after they reached their home.
Her testimony, which was all there was, with regard to the immediate events leading up to his death, was that they continued fighting after they were in the house, that she got away from her husband and locked herself in a bathroom, where she said, she "felt like I was going to blackout." She came out of the bathroom and heard her husband saying that he was going to kill her, went into the bedroom, got a pistol, and was attempting to leave the house when her husband again accosted her, stating that he was not afraid of the pistol and that he was going to kill her anyway. She went on to say that Mr. Hanna pushed her onto the couch and "when I landed on the couch, the pistol went off; and evidently, I kept pulling the trigger . . ."
With this testimony before it, we cannot say the that trial court erred in its determination that Mr. Hanna's death was accidental. We do not agree with Provident's *297 contention that the trial court erred in finding the death was accidental as defined in Aetna, supra. There the evidence was the insured had been drinking heavily on the night he was shot by his fourteen-year-old son, had habitually beaten his wife when he was drinking, did so on the night of his death, and when he attempted to return to the room in which his wife lay unconscious, threatening to kill her and his son, the son shot and killed him.
In Aetna, we said:
Here, as in Aetna, we cannot say as a matter of law that the death was not accidental. There was evidence to support a finding that Mrs. Hanna killed her husband in self-defense, or that the gun went off accidentally, or that she intended to kill him. The issue of whether the death was accidental must be determined according to the accepted view "that an accident is an occurrence that is not to be expected or anticipated in the light of common experience and of the existing circumstances," and such determination is made from the standpoint of the insured.
As decided in Protective Life Ins. Co. v. Linson, 245 Ala. 493, 17 So. 2d 761 (1944), where the primary beneficiary's rights are forfeited, the insurance company remains liable for the proceeds of the policy, to the contingent beneficiary or the insured's estate, as the case may be. Had the trial court foundwhich it did not that Marlene Hanna forfeited her rights, such a finding would not be contradictory of the finding of accidental death. The liability of Provident is established by the finding that the death was accidental. As the primary beneficiary, Marlene Hanna was a party to the proceedings. As she did not appeal, she is bound by the judgment of the trial court.
Provident next argues that the court erred in awarding the proceeds to the administrator, stating in brief that the only issue with regard to the accident policy was whether the named beneficiary intentionally killed the insured. If so, says Provident, the policy was payable to the administrator, and if not, it was payable to no one.
The burden of Provident's argument on this point is that Mrs. Hanna made no claim to the proceeds of the accidental policy. As we read the record, it fails to support this contention. Provident argues that Mrs. Hanna's position, as stated in the pretrial order, was that she had killed the insured in self-defense and was entitled to the proceeds of straight life policies, but made no claim to the proceeds of the accidental death policy. As we read the record, we think it is clear that her claim to the proceeds of the group accident policy was litigated.
At page 51 et seq., of the record on appeal, the following appears:
We think the foregoing amply demonstrates that the case went to trial on the issue of whether the death of Harry O. Hanna was accidental within the meaning of the policy, and if so, which claimant was entitled to the proceeds.
Provident filed the counterclaim which raised the question of its liability under the accidental death policy. Its contention was that the death was not accidental, and that it therefore was not liable under that policy. Marlene Hanna, the primary beneficiary, was a party to those proceedings, as was the administrator of the estate of the insured, the contingent beneficiary under the policy. All the parties were before the court when it determined that the insurer was liable under the policy and that the administrator was not entitled to the proceeds. It had the authority to make that determination. There being evidence in the record to support its determination on both issues, it will not be disturbed here.
Provident's only remaining argument is that the court erred in denying its motion for findings of fact. Under ARCP 52, any party may request findings and conclusions, but the allowance of the motion is purely discretionary with the trial court, unless required by statute to do so. We find no abuse of discretion in denying the motion here.
There is no error to reverse. The decree appealed from is, therefore, affirmed.
Affirmed.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur.
[*] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Tit. 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So. 2d 858. | April 10, 1975 |
4de9a9d0-f011-4317-8c6e-d104d6356869 | Lorch, Inc. v. Bessemer Mall Shopping Center, Inc. | 310 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 872 (1975)
LORCH, INC., a corporation
v.
BESSEMER MALL SHOPPING CENTER, INC., a corporation.
SC 1010.
Supreme Court of Alabama.
March 20, 1975.
Rehearing Denied April 24, 1975.
*873 Macbeth Wagnon, Jr. and Paul A. Liles, Birmingham, for appellant.
McEniry, McEniry & McEniry, Bessemer, for appellee.
MERRILL, Justice.
This is an appeal from a decree of the Circuit Court of Jefferson County enjoining the defendant Lorch, Inc. from advertising any "going out of business" sale at its store in the West Lake Mall Shopping Center in Bessemer, Alabama, and directing Lorch not to go out of business at that location.
In December, 1968, Lorch entered into a lease with Si-Mac Realty. Plaintiff Bessemer Mall Shopping Center, Inc., is SiMac's successor in interest. Lorch agreed to lease some 10,700 square feet for a period of approximately 15 years, commencing November 6, 1969 and terminating January 31, 1985, at a fixed minimum annual rental of $32,400.00 plus 4% of Lorch's gross sales over $648,000.00. In addition, Lorch agreed to pay certain operating and insurance expenses, to join the Mall tenants association, to provide seasonal decorations, and to participate in joint promotional efforts.
The lease also contained the following covenants:
Lorch opened a combination jewelry, furniture and appliance store in the space it had leased. During each year of its operation, however, Lorch's Bessemer Hall store operated at a substantial loss.
The Mall has two "major" department stores, Sears, Roebuck and Grants. Neither the Sears nor Grants lease has continuous operations clauses.
When the Mall was opened, one of the major tenants was a Kroger grocery store. But in 1972, Kroger vacated its premises. Since that time there has not been a grocery store in the Mall. The Kroger lease did not contain a continuous operation clause.
There have been eight tenants with continuous operations clauses which have been permitted to go out of business. However, two of the eight tenants going out of business went bankrupt. A third was taken over by another company. All the tenants going out of business except Kroger were minor tenants.
In the last three years, Lorch's yearly gross sales have never exceeded $250,000.00. In order for the percentage rental to be activated, gross sales would have to exceed $648,000.00.
In May of 1974, Lorch began advertising and conducting a "going out of business" sale.
On September 6, 1974, Lorch's president wrote the managing agents of Bessemer Mall stating his intention to terminate Lorch's business operations at Bessemer Mall and to vacate the premises by October 1, 1974.
On September 24, 1974, Bessemer Mall commenced this action. ARCP 65. A temporary injunction[1] was issued on October 11, 1974, and amended on October 23, 1974, restraining Lorch "* * * from advertising any `going out of business' sale in its location on the leased premises in West Lake Mall Shopping Center and directing the Defendant not to go out of business at the location of the Defendant's leased premises at West Lake Mall Shopping Center in Bessemer, Alabama, and to continuously and uninterruptedly use for retail sale purposes said leased premises; to carry a full and complete stock of merchandise, to maintain adequate personnel, to open for business and remain open during all business hours during all days that the other stores in the shopping center are open for business, and to light its display windows and signs from dusk to 11:00 p.m. on all business days, all of which it covenanted to do in Section 81C of the lease; to continue to do so until further orders of this court."
Lorch does not assign as error that part of the trial court's decree which restrains Lorch from advertising any "going out of business sale."
*875 It is undisputed that appellant has stated its intention to go out of business. The issue on this appeal is not whether Lorch's proposed termination of its business operations at Bessemer Mall would amount to a breach of its lease. The only issue presented on this appeal is whether the trial court erred in issuing its injunction, or decree of specific performance, requiring Lorch to continue its merchandising operations at the Bessemer Mall.
"The equitable remedy of specific performance and that by injunction against breach of a contract have much in common, * * * the jurisdiction exercised is in substance the same, and the general rules apply in the one case as in the other. Generally, an injunction to restrain a breach of contract operates as, and affects all the purposes of, a decree for specific performance. It is one of the methods for the enforcement of contracts, and if the contract is one which would ordinarily be specifically enforced, an injunction may be awarded where this is the most appropriate form of relief." Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So. 2d 321.
In determining whether or not a temporary injunction should have issued, wide discretion is accorded the trial judge hearing the application and making the decision, and, where no abuse of that discretion is shown, his action will not be disturbed on appeal. American Radio Association, AFL-CIO v. Mobile Steamship Association, Inc., 291 Ala. 201, 279 So. 2d 467 affirmed 419 U.S. 215, 95 S. Ct. 409, 42 L. Ed.3d 399; Willowbrook Country Club, Inc. v. Ferrell, 286 Ala. 281, 239 So. 2d 298; Drake Associates, Inc. v. Letson, 277 Ala. 512, 172 So. 2d 536.
But as stated in 5A C.J.S. Appeal and Error § 1591, p. 66:
Appellant contends that the decree of the trial court violates an established principle of equity. We agree.
The rule was stated in Tombigbee Valley R. R. Co. v. Fairford Lumber Co., 155 Ala. 575, 47 So. 88, as follows:
In Electric Lighting Co. of Mobile v. Mobile & Spring Hill Railway Co., 109 Ala. 190, 19 So. 721, the rule was stated thusly:
For other cases to the same effect see Ex parte Jim Dandy Company, 286 Ala. *876 295, 239 So. 2d 545; George Moulton, Inc. v. Langan, 285 Ala. 427, 233 So. 2d 74; Black Diamond Coal Mining Co. v. Jones Coal Co., 200 Ala. 276, 76 So. 42; Roquemore & Hall v. Mitchell Bros., 167 Ala. 475, 52 So. 423.
It is obvious that the relief requested in the instant case is not capable of present performance. Special knowledge, skill and judgment is necessarily involved in selecting and investing in inventory, selecting, training, and compensating adequate personnel, and innumerable other day-to-day business decisions. No case has been cited where this court has ever required continuous, affirmative acts of the type requested here.
Bessemer Mall contends that the cases cited supra were decided exclusively on mutuality of remedy, not complexity and duration of performance. We disagree.
It has been held that mutuality in equitable remedy is essential to the right to specific performance, Electric Lighting Co. v. Mobile & Spring Hill Railway Co., supra; Tombigbee Valley R. R. Co. v. Fairford Lumber Co., supra. It is also true that in most of the cases cited above lack of mutuality of remedy was a consideration, but it was not the sole consideration.
It would seem that length and complexity of performance plus difficulty of supervision may, by themselves, be sufficient grounds for denial of specific performance in cases of the type here presented.
This lease contract contained the usual covenants and provisions relating to remedies and awards of damages for noncompliance with the contract. The denial of injunctive relief does not leave the lessor without remedies at law.
Reversed and remanded.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.
[1] All orders refer to the "temporary" injunction and we follow that terminology in the opinion. It is the same as the preliminary injunction provided for in Rule 65, ARCP. A previously issued TRO had been dissolved. | March 20, 1975 |
74a47903-d147-44ec-a5cd-f096e10f60b1 | Kennedy v. Henley | 309 So. 2d 435 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 435 (1975)
Frank T. KENNEDY et al., etc.
v.
John C. HENLEY, III, et al.
SC 593.
Supreme Court of Alabama.
January 9, 1975.
As Modified on Denial of Rehearing March 6, 1975.
Balch, Bingham, Baker, Hawthorne, Williams & Ward and Edward S. Allen, Birmingham, for appellants.
Smyer & White, and Harold H. Goings, Birmingham, for appellees.
JONES, Justice.
This is an appeal by the complainants below from an adverse declaratory decree. *436 Frank T. Kennedy, one of the complainants, contracted with the First National Bank of Birmingham, the other compainant, for the purchase of a lot owned by the Bank, as trustee of the estate of Susie M. Milner, deceased, on the condition that the Bank is able to remove or nullify any restrictive covenant which would prevent Kennedy from building a house thereon. Mr. and Mrs. John C. Henley, III, respondents, own the adjoining property.
In 1915, the properties here in question were part of a tract that was subdivided into 100-foot lots. On April 14, 1915, Milner Land Company conveyed to Lillian M. Orr Lots 24 and 25 subject to restrictions to be in force until January 1, 1930, which read in part:
The east ¾ of Lot 22, Lot 23 and Lot 26 of such survey, being located on either side of Lots 24 and 25, were part of the same subdivision and between 1915 and 1917 came to be owned by George Connors and Forney Johnston, so that in early 1917, the ownerships in the area were as follows:
On August 9, 1917, Orr conveyed the west 25 feet of Lot 24 to Connors. The deed contains the following covenant:
Thus, in August, 1917, the following situation existed:
*437
Two months later, on October 30, 1917, Orr conveyed to her other neighbor, Johnston, the east 25 feet of Lot 25 with the following provisions:
In October, 1917, the ownerships were, therefore, as follows:
*438 A dwelling house was constructed by Johnston, principally on Lot 36 but partially on the east 25 feet of Lot 25. Johnston lived in this residence until 1921, when he and his wife conveyed the property to B. M. Brasfield.
Until June 24, 1922, Orr still owned three-fourths of Lot 25 and three-fourths of Lot 24. As stated, Brasfield had purchased the property adjoining Orr to the east the previous year. Connors still owned the property now held by appellees Mr. and Mrs. John C. Henleyto the west of Orr.
On June 24, 1922, three things happened. (1) Orr conveyed an additional 25 feet of Lot 25 to Brasfield. (2) Orr conveyed to Murray Brown the west half of Lot 25 and the east three-fourths of Lot 24 (the same property now owned by appellants). (3) Connors and Brown entered into an agreement which provides:
Thus, in June of 1922, the ownerships bore the same breakdown as today:
Brown did not build on his property but held the same until March 9, 1927, when he sold it to Scruggs Investment Company, Inc. On June 28, 1944, Scruggs conveyed it to Susie M. Milner, the predecessor in title to appellants. Two years later Milner *439 purchased the Brasfield property from the grantee of the Brasfield heirs.
In 1966, Milner's estate sold the Brasfield property to Mr. and Mrs. James Martin who in 1972 conveyed to Mr. and Mrs. Nelson. Also, in 1972, the Bank, as trustee of the Milner estate, contracted to sell to Kennedy for residential purposes the Brown property (the subject 125-foot lot), contingent on a determination that a house could be constructed thereon.
The Henleys gained title to their property from the heirs of Connors in 1966, and the deed is made subject to the August, 1917, Orr-Connors deed and the 1922 Connors-Brown agreement.
We observe initially that it is without dispute that because the evidence before the trial Court was by stipulation of the parties, and testimony was not taken orally, the ore tenus rule of review does not apply. Donald v. Donald, 270 Ala. 483, 119 So. 2d 909 (1960); Skinner v. Ellis, 245 Ala. 397, 17 So. 2d 416 (1944). Our de novo consideration and resolution of the issues here presented are governed by the following legal propositions:
The crucial language of the subject covenant in the Orr-Connors deed is:
The question, then, is: Does the use of the words "not more than one dwelling house ..." include that portion of the Johnston house built on the E ¼ of Lot 25 so as to render the remainder of Lots 24 and 25 (150 feet) useless?
The Henleys contend that the language of this covenant is clear, unambiguous, and bears no interpretation. When Orr later sold Johnston 25 feet off the east side of Lot 25 and Johnston built a portion of his house thereon, say the Henleys, and construction of a residence on the remaining portions of Lots 24 and 25 would constitute "more than one dwelling".
We cannot agree that, within the factual context of this covenant, the language *440 lends itself to but one interpretation. The original subdivision covenant restricted each dwelling to a minimum of 100-foot frontage. Prior to August, 1917, Orr owned two 100-foot lots on which she was entitled to build two houses. One neighbor to the east (Connors) owned 1 and ¾ lots (175 feet) and one neighbor to the west (Johnston) owned 1 lot (100 feet). It is evident that each neighbor desired 25 feet of additional frontage for the purpose of constructing his residence. At the time Orr conveyed 25 feet to Connors in August, 1917, it is entirely reasonable to assume that Connors wished to make clear that this reduction in the size of Lot 24 would reduce Orr to one rather than two dwellings on the remaining 175 feet. Also, it is reasonable to assume that Connors was interested in extending the original subdivision restriction beyond the January 1, 1930, deadline.
To assume, as appellees contend, that Orr's subsequent conveyance to Johnston of 25 feet to accommodate a portion of Johnston's dwelling rendered the balance of Orr's property (150 feet) useless is unreasonable, and infers an intention of the parties that is nonsensical. Why would Orr deliberately destroy the utility of the remaining portions of two lots equal in size to 1½ of the original lots in order to sell her neighbors 25 feet each? The absurdity of the supposition upon which this question is based is compounded by the factual certainty that in each instance it was the neighbor who sought the purchase and not Orr who sought the sale. Indeed, Orr made her answer to this question perfectly clear in her deed to Johnston in which she reserved the right to build on the remaining 150 feet. To be sure, Connors was not a party to the Orr-Johnston deed; but Connors executed the Brown agreement, which spelled out Brown's intention to build on the Orr property, subsequent to Johnston's construction on his 25 feet.
Surely, it is beyond the realm of speculation that at the time of the Brown-Connors agreement, Connors knew two crucial facts: (1) He knew the exact location of the Johnston dwelling which occupied a portion of Orr's original Lot 25. This fact is inescapable since for at least four years Johnston and Connors were next door neighbors and the space which separated the west side of Johnston's house from the east side of Connors' house was essentially the area purchased by Brown from Orr as a building site at the same time as the Brown-Connors agreement. (2) He knew further that, in order to build a house on Lot 24 (under the subdivision restrictions), Brown necessarily had to utilize the remainder of Lot 25, which after the sale of an additional 25 feet to Brasfield (who now owned the Johnston property), consisted of 50 feet, or a total of 125 feet for the remaining portions of Lots 24 and 25.
It is thus that, from all these circumstances, we are drawn to the conclusion that Connors' execution of the agreement with Brown evinced an intention on his part entirely consistent with that of Orr at the time of the Orr-Connors covenant, i. e., that the subsequent sale by Orr of 25 feet to Johnston and Johnston's construction of a portion of his house thereon did not render the balance of Orr's two lots useless under the terms of the Orr-Connors convenant.
As this Court stated in White v. Harrison, 202 Ala. 623, 81 So. 565 (1919):
We believe it is clear that the parties to the covenant in questionOrr and Connors intended that not more than one house would exist at any one time on a frontage lot of less than 100 feet. The present frontage of Lots 24 and 25, as reconstituted, is 125 feet. The rule of strict construction of restrictive covenants and the rule to give effect to the intention of the parties accommodate, here, to the same result, i. e., that the covenant in question is not enforceable so as to prohibit the use of this property for the erection of a residence thereon.
This Court holds that the reconstituted lots, now consisting of a single building site of 125 foot frontage, are not prohibited from use for residential construction under the terms of the covenant in question.
Reversed and remanded.
HEFLIN, C. J., and HARWOOD, BLOODWORTH, MADDOX and FAULKNER, JJ., concur.
COLEMAN, J., dissents.
MERRILL and McCALL, JJ., concur.
COLEMAN, Justice (dissenting):
Complainants appeal from adverse declaratory decree.
Complainants are a natural person, Frank T. Kennedy, and The First National Bank of Birmingham, a corporation, which sues as trustee under the will of Susie M. Milner, deceased.
The Bank, as trustee aforesaid, owns a parcel of land in Block 6 of Milner Land Company's 2d Addition to Birmingham described as: W ½ of Lot 25 and E ¾ of Lot 24.
Kennedy has entered into a conditional contract with the Bank whereby he agrees to purchase said parcel of land if the Bank is able to remove or nullify any restriction or covenant which would prevent the construction of a residence thereon.
The respondents, John C. Henley, III, and his wife, own an adjoining parcel of land in the same subdivision described as: E ¾ of Lot 22, Lot 23, and W ¼ of Lot 24. A former owner of all of Lots 24 and 25 conveyed to a predecessor in title of respondents the W ¼ of Lot 24. By the deed conveying said W ¼ of Lot 24 to predecessor of respondents, the grantor, predecessor in title to the Bank, entered into a covenant promising that not more than one dwelling house shall be built and exist at any one time on the remaining portion of Lots 24 and 25.
Subsequently, the Bank's predecessor in title conveyed the E ¼ of Lot 25 to Forney Johnston who then owned Lot 26. Johnston built a dwelling house, partly on Lot 26, and extending twenty-two feet onto Lot 25.
Respondents contend that, because part of a dwelling house has been built on Lot 25, construction of an additional house on W ½ of Lot 25 and E ¼ of Lot 24 would cause more than one dwelling house to exist at one time on the portion of Lots 24 and 25 which remained after conveyance of W ¼ of Lot 24 to respondents' predecessor, and, therefore, would violate the covenant made by the Bank's predecessor who owned all of Lots 24 and 25 at the *442 time of execution of the deed containing the covenant.
The attached plat of the lots involved may be helpful.
As we understand the record, Lots 22, 23, 24, 25, and 26 all front on Crest Road and the front line of each lot is 100 feet long. For discussion, the lots will be regarded *443 as rectangular, and quarters and halves are regarded as they are shown on the sketch.
In 1917, title to Lots 22, 23, 24, 25, and 26 was held by three persons, each of whom owned one of the parcels described as follows, to wit:
By Exhibit 2, dated April 14, 1915, Milner Land Company had conveyed Lots 24 and 25 to Lillian M. Orr. Exhibit 2 contains the following description of Lots 24 and 25 and, among others, the restrictions quoted, to wit:
"This conveyance is made subj to the fol conditions and
"RP #2
". . .
"...
Some of the owners subsequently conveyed to others parts of some of the parcels mentioned. At time of suit, title to three separate parcels rested in three different parties. We next undertake to trace the title and show the respective portions owned by each party at the present time.
By Exhibit 3, dated August 9, 1917, for a consideration of $2,250.00, Orr conveyed to Connors the W ¼ of Lot 24. Exhibit 3 recites that the conveyance is made subject to the restrictions contained in Exhibit 2, which is mentioned above. Exhibit 3, the deed from Orr to Connors, contains a covenant by which the grantor, Orr, bound herself and her successors in title with respect to the remaining portions of Lots 24 and 25, to wit: the E ¾ of Lot 24 and all of Lot 25. The covenant recites:
It will be noted that Connors also bound himself and his successors in title with respect to "lots owned by him in sd survey."
The instant controversy arises out of the covenant undertaken by the grantor, Orr.
Murray Brown subsequently acquired title to a part of Lot 24 and a part of Lot 25 as is hereinafter stated.
Connors entered into an agreement with Brown. The agreement, Exhibit 5B, dated June 24, 1922, is hereinafter discussed.
By Exhibit 8, dated January 10, 1966, the heirs of Connors conveyed to the Henleys, the respondents, the parcel described as follows, to wit:
E ¾ of Lot 22, all of Lot 23, and the W ¼ of Lot 24.
Exhibit 8 recites that the conveyance is subject to the agreement, Exhibit 5B.
As we understand the record, the respondents now own the E ¾ of Lot 22, all of Lot 23, and the W ¼ of Lot 24.
As stated above, in 1917, Orr owned all of Lots 24 and 25. As already stated, by Exhibit 3, dated August 9, 1917, which contains the covenant agreeing not to build more than one dwelling house on the E ¾ of Lot 24 and all of Lot 25, Orr conveyed to Connors the W ¼ of Lot 24.
By Exhibit 4, dated October 30, 1917, Orr conveyed to Forney Johnston the E ¼ of Lot 25.
By Exhibit 5, dated June 24, 1922, Orr conveyed to Brasfield the W ½ of the E ½ of Lot 25. Orr thus was left with the W ½ only of Lot 25.
By Exhibit 5A, also dated June 24, 1922, Orr conveyed to Murray Brown the W ½ of Lot 25 and the E ¾ of Lot 24.
By Exhibit 5B, also dated June 24, 1922, Connors executed said agreement to Brown. It recites as follows:
"This agreement made and entered into between George W. Connors, as party of the first part and Murray Brown, as party of the second part, WITNESSETH: Whereas, the said George W. Connors is the owner of that part of Lot Twenty-four in Block Six of Milner Land Company's Second Addition to Birmingham, in Jefferson County, Alabama, a map of which is to be found of record in Volume Ten at page 65, of the record of maps in the office of the Judge of Probate of Jefferson County, Alabama, which fronts twenty-five feet on Crest Road and twenty feet on the alley in the rear of said lot, and being the same twenty-five feet heretofore conveyed to the said George W. Connors by Lilian M. Orr and her husband C. P. Orr; And Whereas, the said Murray Brown is about to purchase from the said Lilian M. Orr the remaining portion to said lot Twenty-four for the purpose of erecting a residence thereon; now then in consideration of the premises and the further sum of five dollars in hand paid and other valuable considerations, the said George W. Connors for himself, his heirs and assigns hereby covenants with the said Murray Brown, his heirs and assigns that no dwelling house shall ever be erected on that part of said lot Twenty-four now owned by the said George W. Connors as aforesaid, nor on any part of said Lot Twenty-four now owned by the said George W. Connors. In witness whereof, I the said George W. Connors, have hereunto set my hand seal on this the 24th day of June 1922."
*445 By Exhibit 6, dated March 9, 1927, Brown conveyed the W ½ of Lot 25 and E ¾ of Lot 24 to Scruggs Investment Co., Inc.; and, by Exhibit 7, dated June 28, 1944, Scruggs conveyed the same land to Susie M. Milner, who owned the same at the time of her death. As hereinafter shown, in 1946, she also acquired the E ½ of Lot 25 and all of Lot 26, which she also owned at her death. The E½ of Lot 25 and Lot 26 were sold by the Bank as executor of the will of Susie M. Milner, deceased. The Bank, as trustee, now owns E ¾ of Lot 24 and W ½ of Lot 25.
Lot 26 was conveyed to Forney Johnston by deed dated March 2, 1917.
By Exhibit 4, dated October 30, 1917, mentioned above, Orr conveyed to Johnston the E ¼ of Lot 25.
By Exhibit 12, dated March 30, 1921, Johnston conveyed to Brasfield the E ¼ of Lot 25 and Lot 26.
By Exhibit 5, dated June 24, 1922, previously mentioned, Orr conveyed to Brasfield the W ½ of E ½ of Lot 25.
Brasfield thus became owner of Lot 26 and E ½ of Lot 25, which were subsequently conveyed to Susie M. Milner by Exhibit 15, dated April 27, 1946, and were owned by her at her death.
We have not found the date of her death. By Exhibit 16, dated May 11, 1966, however, the Bank, as executor of her will, conveyed Lot 26 and the E ½ of Lot 25 to the Martins, who later conveyed to the Nelsons who apparently are the present owners.
The land is now held by three parties as follows:
1. Respondents own E ¾ of Lot 22, Lot 23, and W ¼ of Lot 24.
2. The Bank, as trustee, owns E ¾ of Lot 24 and W ½ of Lot 25.
3. The Nelsons own E ½ of Lot 25 and Lot 26.
Forney Johnston built a dwelling house. Part of the house extends 22 feet onto Lot 25. The parties stipulated:
No house stands on the parcel described as E ¾ of Lot 24 and W ½ of Lot 25. In the decree appealed from, the trial court said that in 1944 and 1946, Susie M. Milner acquired the Johnston property and the E ¾ of Lot 24 and W ½ of Lot 25, that she "utilized both these properties as one large dwelling estate and caused to be constructed" on the E ¾ of Lot 24 and W ½ of Lot 25 "a large turn-around or parking area which occupied nearly the entire width of the restricted property." A photograph in evidence (Exhibit 19) supports the statement with respect to the turnaround.
Appellants do not contend that the covenant is not a restrictive covenant running with the land, but contend as follows:
(1) That by the agreement (Exhibit 5B) the parties intended that Mrs. Orr would not build one house on the E ¾ of Lot 24 and a second house on Lot 25;
*446 (2) that the covenant was not violated by her conveyance of E ¼ of Lot 25 to Johnston and his constructing a house extending onto the E ½ of Lot 25;
(3) that the contention of respondents was either not the intention of the parties or was waived or abandoned in 1922; and
(4) that the covenant terminated with the expiration of the restrictions stated in the deed to Mrs. Orr in 1915, Exhibit 2.
Complainants point out that the trial court heard no oral testimony other than agreed statements of counsel and point out that there is no presumption favoring the findings of the trial court, citing Donald v. Donald, 270 Ala. 483, 119 So. 2d 909; and Skinner v. Ellis, 245 Ala. 397, 17 So. 2d 416.
In Hall v. Long, 199 Ala. 97, 74 So. 56, this court said:
The language of the restrictive covenant is simply an agreement that "not more than one dwelling house ... shall be built and exist at any one time on the remaining portion of lots 24 & 25."
There is already a substantial part of a dwelling house on Lot 25. If complainants build another house on the "remaining portion of lots 24 & 25" as stated in the covenant, there will be more than one dwelling on "the remaining portion of lots 24 & 25" in violation of the covenant made by Orr in Exhibit 3, dated August 9, 1917.
As to complainants' contention (1), we agree that the parties intended that Mrs. Orr would not build one house on Lot 24 and another house on Lot 25. The parties also plainly said that not more than one dwelling house shall exist at one time on the remaining portion of said lots which remained after the conveyance of W ¼ of Lot 24 to Connors.
As to contention (2), Johnston's building a part of his house on Lot 25 did not violate the covenant because there was no other house on Lots 24 and 25 at the time he built it, but the building of an additional house on the E ¾ of Lot 24 and the W ½ of Lot 25 will violate the promise that not more than one dwelling house will exist thereon at any one time.
As to contention (4), there appears to be no reason to suppose that the parties intended that Mrs. Orr's covenant should terminate at the same time the restrictions in Exhibit 2, the deed to Mrs. Orr, would terminate. If the parties had so intended, they could have used simple words in the deed to Connors to say that all restrictions in Exhibit 3, the deed from Orr to Connors, shall terminate January 1, 1930, when the restrictions in the deed from Milner Land Co., Inc., would terminate.
Contentions (1), (2), and (4) are clearly without merit.
In contention (3), complainants assert that the restriction set out in the deed from Orr to Connors, Exhibit 3, was waived in 1922. The contention is that when Connors executed the agreement with Brown, Exhibit 5B, Connors waived the covenant in Exhibit 3.
For at least two reasons, the contention of complainants is not sustained. The first reason is that Exhibit 5B does not refer to the covenant made by Orr in Exhibit 3. By Exhibit 5B, Connors agreed to a restriction that no dwelling house shall ever be erected on that part of Lot 24 "... now owned by the said George W. Connors as aforesaid, nor on any part of said Lot *447 Twenty-four now owned by the said George W. Connors." If Connors intended also to waive the covenant in Exhibit 3 made by Orr to Connors providing that not more than one dwelling house "... shall be built and exist at any one time on the remaining portion of lots 24 & 25," that intent could easily have been expressed in simple language in Exhibit 5B. Such intent is not expressed and to say that it was expressed is to write into Exhibit 5B a provision that the parties did not include therein. The expression of one thing is the exclusion of another.
The parties having clearly expressed the intention in Exhibit 5B to place a restriction on the W ¼ of Lot 24 and no other intention, the court cannot extend the contract to imply a release of a different restriction on a different portion of Lots 24 and 25.
The second reason that the 1922 agreement cannot be construed to be a waiver of the restriction contained in Orr's deed to Connors is that there is no evidence to show that Connors had knowledge at the time of the 1922 agreement that Johnston's house was built partly on the remaining portion of Lots 24 and 25.
There is no evidence that Connors knew that Orr had conveyed to Johnston the E ¼ of Lot 25, or that Orr was going to convey to Brasfield the W ½ of the E ½ of Lot 25.
In holding that a building restriction had not been waived by plaintiff in an action for violation of a building restriction by defendant, the Supreme Court of California said:
See also: Miller v. Klein, 177 Mo.App. 557, 160 S.W. 562; Oakman v. Marino, 241 Mich. 591, 217 N.W. 794; Kumble v. Jaffee, 100 N.J.Eq. 290, 134 A. 673; Polhemus v. DeLisle, 98 N.J.Eq. 256, 130 A. 618; Pellegrino v. MacKenzie St. Const. Corp., 120 Misc. 89, 197 N.Y.S. 699, affirmed, 206 A.D. 709, 200 N.Y.S. 939; Pancho Realty Co., Inc. v. Hoboken Land & Improvement Co., 132 N.J.Eq. 15, 25 A.2d 862.
The trial court was correct in finding that the restriction has not been waived.
The parties stipulated:
MERRILL and McCALL, JJ., concur.
JONES, Justice.
Application for rehearing overruled and opinion modified.
Reversed and rendered.
HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES, and EMBRY, JJ., concur.
MERRILL, J., dissents. | March 6, 1975 |
c7fc9e61-7f1b-4bf0-89cd-09e3a630eac3 | Louisville and Nashville Railroad Co. v. Phillips | 310 So. 2d 194 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 194 (1975)
LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a corporation
v.
H. G. PHILLIPS.
SC 572.
Supreme Court of Alabama.
March 6, 1975.
Rehearing Denied April 10, 1975.
*195 Henry E. Simpson, Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
EMBRY, Justice.[1]
This is an appeal by defendant Railroad Company from an order of the trial court granting a motion for new trial. We affirm.
The action was by plaintiff employee of defendant Railroad under the provisions of Tit. 45, U.S.C.A., 1, 9 (Federal Safety Appliance Act) and § 51 (Federal Employers' Liability Act); claiming damages for injuries to his right elbow and arm as a result of two incidents occurring on separate occasions.
At the close of the evidence the issues were submitted to the jury and a verdict returned by it in favor of the defendant Railroad. Judgment was entered accordingly.
The facts surrounding the incidents producing the injuries are not necessary to a determination of the issues raised in this case. After judgment, plaintiff employee filed motion for new trial on the ground, among others, that a question to plaintiff by attorney for defendant during cross-examination of plaintiff was so prejudicial to *196 plaintiff and his rights that he did not obtain a fair trial of the action.
The ground as stated in motion of plaintiff for new trial is as follows:
`Was that the fracas with the young lady',
The question presented for review is whether the trial court was justified in its conclusion that a new trial should be granted because of the infection of prejudice into the proceedings to the extent that plaintiff could not and, therefore, did not obtain a fair trial of his case. Defendant Railroad on the other hand urges in substance that prejudice, if any, was not sufficient to have affected the result or, on the other hand, such was eradicable and cured by action of the trial court during trial.
Extensive and exhaustive briefs for both of the parties are directed to the issue presented for review. There is a plethora of citations seeming to support the contentions of each of the parties.
We here quote the penultimate series of questions and answers that apparently moved the trial court to grant the motion for a new trial. These climaxed other occurrences which the trial judge apparently deemed prejudicial to plaintiff.
Other matters appear in the record that are within the ambit of ground eight of plaintiff's motion for new trial. The first of these surfaced on the occasion of the hearing of plaintiff's motion in limine. That motion sought to "head off," as it were, anticipated injection of irrelevant prejudicial evidence into the trial. Specifically it was to preclude introduction by defendant of evidence concerning plaintiff gleaned from records of the Nashville, Tennessee, Police Department that: (a) plaintiff had received a traffic ticket, (b) had been arrested and convicted on two counts of assault and battery and one of disorderly conduct, (c) had suffered a forfeiture of a $50 bond for failing to appear and answer drunk and disorderly conduct charges.
These facts had been developed by defendant on oral deposition of a Sergeant of Police of Nashville. To that deposition there was attached as an exhibit, the entire police record of plaintiff. The assault and battery counts as well as the charge of disorderly conduct arose from an incident with a lady ("Q The young lady that you had the fracas with?") after he suffered the alleged injuries made the basis of his asserted right to recover damages from his employer.
On the hearing of the motion in limine defendant advanced the theory that assault and battery involved physical exertion by plaintiff thus evidencing ability to use his arm at a time when he was claiming to be disabled. In sum, the argument of plaintiff to the contrary was that such light as might gleam on the issue by admitting the evidence would be far outweighed by prejudice to him from revelation that the assault and battery consisted of shoving a woman. It should be noted that the trial court ruled at this point that the police record exhibit would not be admitted and further stated:
and
There followed a long colloquy between counsel for both parties and the court. It concerned what areas of evidence that might be explored regarding the ability of plaintiff to use his right arm, including the assertion by defendant that long continued shooting of craps could cause bursitis in the elbow. It was not disputed that, except for two very brief intervals, plaintiff had worked regularly for defendant since the occurrence of the latter of the two accidents made the basis of his claim against defendant. During the course of those proceedings in chambers the trial court, we *198 think, made it abundantly clear to delineate those subjects of inquiry which he thought should be subject to in-chambers conference before counsel for defendant proceeded to develop them. Persistently during the trial, counsel eased into the forbidden subjects without seeking guidance of the court by in-chambers conference.
Thus we are presented with the necessity of determining whether the trial court properly exercised his discretion to grant a new trial to correct the jury verdict which he felt to have resulted from prejudicial, improper, extraneous influences finding their way into the jury box.
The principle to be followed in making the determination of the correctness of the trial court's action in ordering a new trial is well stated in Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389:
More apt, perhaps, to the facts of the case before us, in light of the proceedings in chambers on the motion in limine, is the quote from Metropolitan Life Insurance Co. v. Carter, 212 Ala. 212, 102 So. 130, in Ritchey v. State, 293 Ala. 265, 302 So.2d 83:
Were not the delineations by the trial court made on occasion of the colloquy during hearing of the motion in limine directed to insuring a trial free from prejudicial, improper, extraneous, influences finding their way into the jury box? Did not his granting of the motion for new trial stem from a well founded view that such had found their way into the jury box? We think the answer in both instances is in the affirmative.
The question here presented is not whether the remark "The young lady that you had the fracas with?" was so grossly improper and highly prejudicial that the rights of plaintiff were prejudiced by it alone. Rather, the question is whether this climactical event in a series of deviations from the guidelines previously laid down by the trial court cumulatively tipped the bucket and let those improper, extraneous influences flow into the jury box. We do not think the trial judge abused his discretion in ordering a new trial. Gwin v. Church, 272 Ala. 674, 133 So. 2d 880.
One other point deserves comment. Defendant insists that plaintiff was granted a new trial, without preserving error during the trial by objecting to the quoted remark. It urges that when counsel for plaintiff stated: "There, Judge, there. You can* * * There you go, Judge, and we move for a mistrial if it please the court," and the trial court failed to rule on that motion there was no basis for ordering a new trial. This ignores the proceedings below in this particular case as well as the law. Indeed, just as it is the duty of the trial judge to so conduct the trial as to see that extraneous influences do not find their way into the jury box, likewise it is his duty to correct the result when it is determined by him that such did find their way in and probably influence the *199 verdict. Taylor v. Brownell-O'Hear Pontiac Co., 265 Ala. 468, 91 So. 2d 828.
Much reliance is placed by defendant upon dictum in Alabama Great Southern Railroad Co. v. Gambrell, 262 Ala. 290, 78 So. 2d 619. The language from Gambrell which defendant urges as a statement of one of the standards by which the correctness of the granting of a new trial should be measured is:
We think the test applied in Taylor v. Brownell-O'Hear Pontiac Co., supra, cited by plaintiff, is the one more appropriately applied to the situation presented by the case at bar. There the trial judge had granted a new trial on account of improper argument of counsel in connection with which this court went on to say:
Moreover we quote with approval the language of this court in Johnson v. Hodge, 291 Ala. 142, 143, 279 So.2d 123:
We cannot say the record demonstrates plain and palpable error by the trial court in the exercise of its discretion granting a new trial, discretion wisely left to it. ConAgra, Inc. v. Masterson, 290 Ala. 273, 276 So. 2d 134; State v. Oliver, 288 Ala. 32, 256 So. 2d 866.
*200 For the reasons enunciated the action of the trial court in granting a new trial is hereby affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur.
[1] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Ala., Tit. 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So. 2d 858. | March 6, 1975 |
6ca2e54b-7813-432f-87de-1a95dbd61656 | Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co. | 310 So. 2d 200 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 200 (1975)
George FLEMING and Jeffrey Lance Fleming, a minor, et al.
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY.
SC 1103.
Supreme Court of Alabama.
March 6, 1975.
Rehearing Denied April 3, 1975.
Farmer & Farmer, Dothan, for appellants.
Merrill & Harrison, Dothan, for appellee.
BLOODWORTH, Justice.
This is an appeal by defendants Fleming from a summary judgment granted plaintiff, *201 Alabama Farm Bureau Mutual Casualty Insurance Company, in a declaratory judgment proceeding filed by the insurer.
Appellant Jeffrey Fleming, a minor who sues by his father and next friend, George Fleming, brought an action in the Circuit Court of Houston County against Mrs. Alberta Fleming (grandmother of Jeffrey and mother of George) alleging that Jeffrey received injuries while riding as a passenger in an automobile driven by Mrs. Fleming as a proximate result of Mrs. Fleming's negligence or wantonness. George Fleming brought a derivative action against Mrs. Fleming seeking to recover medical expenses incurred on behalf of Jeffrey. The suits also named as defendants the driver of a second automobile involved in the accident.
Alabama Farm Bureau, the liability insurance carrier for Mrs. Fleming, then brought the instant declaratory judgment proceeding to determine whether it must defend Mrs. Fleming against the claims of her son and grandson and pay any judgment rendered against her. On motion of the insurance company, the trial court enjoined prosecution of the personal injury actions pending this determination.
The insurer moved for summary judgment based on a policy exclusion, accompanying the motion with the deposition of appellant George Fleming. The trial judge granted the motion and rendered a summary judgment, making certain findings of facts and determining that the insurance company is not obligated under its policy to defend or pay the claims of George and Jeffrey Fleming.
The policy exclusion upon which the summary judgment is based provides as follows:
"This insurance does not apply under:
Thus, the sole question before this Court is whether or not as a matter of law, the minor plaintiff was a member of the family of the insured Mrs. Alberta Fleming residing in the same household as the insured at the time of the accident causing his injuries.
With respect to this issue, the facts are disclosed by the deposition of George Fleming which shows the following.
The minor plaintiff Jeffrey Fleming lives with his father, mother, and one brother in a six-room house. Mrs. Alberta Fleming, the insured, and her husband, Emmitt Fleming, also occupy a part of the house. The house is owned by one E. R. Solomon who does not charge rent for its occupancy. (It appears that George Fleming did at one time look after some cows belonging to E. R. Solomon for which it may be inferred the house was let to him rent free. He does not do so now.) The house is divided by a hall. Alberta Fleming and her husband Emmitt Fleming occupy two bedrooms on one side of the hall. George Fleming, his wife, and their two children occupy a bedroom and a living room on the other side of the hall. The house has one bathroom which is shared by all. The kitchen which is located at the end of the hall is also shared.
George Fleming buys groceries for himself, his wife, and children. Emmitt Fleming buys groceries for himself and his wife Alberta. Some staple items, such as sugar and flour, are shared. Emmitt and Alberta Fleming do not eat breakfast or lunch with George Fleming, his wife, and two children. The evening meal is usually shared by all. George Fleming and Emmitt Fleming each pay half of the utility bill.
Emmitt Fleming and his wife Alberta both have full-time jobs as does George *202 Fleming. George Fleming's wife takes care of the two children and does not work outside the home.
Emmitt Fleming owns his own automobile and two trucks which he uses for business and pleasure. His wife Alberta owns a car which she likewise uses. It is not clear whether Alberta's car or her husband Emmitt's car was the vehicle involved in the accident. Emmitt is the "named insured" in the suit policy, but Alberta is an "insured" as that term is defined in the suit policy. George Fleming owns an automobile which he and his wife use and upon which the same insurer has issued a separate policy of insurance.
George Fleming who is thirty-one years of age makes the decisions for himself, his wife and children. Emmitt Fleming does the same for himself and his wife.
We note at the outset that the ultimate burden of proof as to the applicability of the exclusionary clause rests with the movant-insurer, which also bears the burden to show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.
The same or a similar exclusionary clause has been before this Court on several previous occasions.
The first such case appears to be Holloway v. State Farm Mutual Automobile Insurance Co., 275 Ala. 41, 151 So. 2d 774 (1963). In Holloway the insured was an elderly widow. The deceased, also an elderly widow, was the insured's sister. Until the deceased's death, the two lived in their old family home which was owned by the insured. The deceased paid no rent and expenses were shared. This Court affirmed the trial court's final decree which held that the deceased was residing in the household of the insured.
In Blow v. State Farm Mutual Automobile Insurance Co., 284 Ala. 687, 228 So. 2d 4 (1969), this Court reached the same result on facts almost identical to those in Holloway, supra. (In Blow, insured was a brother-in-law, who with his wife, shared house, meals, furniture, with deceased, sister of his wife.)
A similar exclusionary clause was before this Court in Alabama Farm Bureau Mutual Casualty Insurance Co. v. Preston, 287 Ala. 493, 253 So. 2d 4 (1971). The question there was whether or not the insured's married daughter resided in the insured's household within the meaning of the policy exclusion. The daughter was living with her parents while her husband was in military service overseas. This Court reversed a final decree against the insurer because the decree was unsupported by the evidence.
In each case this Court necessarily rested its determination as to whether the injured party was a "member of the family of the insured, residing in the same household as the insured" on the particular facts of that case. In each opinion, the facts which show the living arrangements of the injured party and the insured are set out at length and discussed in detail. Nevertheless, there clearly appears to be a common rationale upon which these decisions rest. In Holloway, supra, the Court relied on, and quoted with approval, the language and reasoning of the Minnesota Supreme Court in Tomlyanovich v. Tomlyanovich, 239 Minn. 250, 58 N.W.2d 855 (1953) as follows:
In Blow, supra, the Court relied upon, and quoted with approval from, Hunter v. Southern Farm Bureau Casualty Insurance Co., 241 S.C. 446, 129 S.E.2d 59 (1962), which in turn is based on Tomlyanovich, supra. In Blow, supra, this Court wrote, quoting from Hunter:
Thus, in each case the crucial question was whether the injured party and the insured were part of one domestic circle residing under the same roof. However, in none of these reported cases does the court delineate the bounds of the "domestic circle" because the Court was not faced with the factual situation of two traditionally independent domestic units living under one roof and sharing in common a kitchen and bath.
A Pennsylvania court was faced with such a situation in Hoff v. Hoff, 132 Pa. Super. 431, 1 A.2d 506 (1938). The facts in Hoff are quite similar to those in the case at bar except that there the injured party was the daughter-in-law of the insured. The injured party, her husband, and child occupied the living room and two bedrooms in a house owned by the insured.
The other rooms were used by insured and his wife. The bathroom and kitchen were necessarily used by all in common. Usually, separate meals were prepared and served by insured's wife for insured and herself and by the injured party for her husband, child, and herself. Occasionally, one meal was served for all. The injured party did most of the housework in exchange for occupying the rooms rent free. The grocery accounts were kept separate. The utility bills were arbitrarily divided in half.
On these facts, the Pennsylvania court held, inter alia:
*204 "Neither relationship nor the presence of all the parties within one dwelling is the determining factor, but rather the existence of such domestic arrangements and circumstances as would create separate domestic establishments, each having its own head and separate management. Sole control of the entire dwelling by husband plaintiff was not necessary in order that it might be the abode of his own household; nor did the fact that defendant owned the dwelling in which plaintiffs and their son resided, and in which defendant and his wife also lived, make him the head of a household which included plaintiffs and their son, as contemplated by the terms of defendant's policy. * * * From the method of living and the domestic arrangements, the jury could properly conclude that there were two separate households under one roof, husband plaintiff being the head of one, and defendant head of the other. In our opinion, under the facts, it cannot be held as a matter of law that plaintiffs were `residing in the same household with the assured [defendant].' The verdicts of the juries must therefore be sustained." [Emphasis supplied.] (132 Pa.Super. at 435, 436, 1 A.2d at 507, 508)
The case of State Farm Mutual Automobile Insurance Co. v. Snyder, 122 Ga.App. 584, 178 S.E.2d 215 (1970), is not only factually similar to the instant case but is procedurally identical. In Snyder the Court of Appeals of Georgia was presented with an appeal by the insurer from a denial of the insurer's motion for summary judgment. There, faced with an identical "exclusionary" clause, the Georgia court held (per Presiding Judge Hall, now Associate Justice, Supreme Court), inter alia:
This case was again before the Georgia court on appeal by insurer from a directed verdict for the insured. The court reversed holding that a question of fact had been presented for the trier of fact. State Farm Mutual Automobile Insurance Co. v. Snyder, 125 Ga.App. 352, 187 S.E.2d 878 (1972).
The Pennsylvania and Georgia courts applied the same rationale which was followed by our Court in Holloway, Blow, and Preston, supra. When faced with factual situations more complicated than in Tomlyanovich, supra, and in our Alabama cases, the Pennsylvania and Georgia courts did not mechanistically hold that members of a family residing under one roof were automatically part of the same family circle but looked to the facts of the situation in light of the purpose to be served by the exclusion to determine whether the parties were in fact members of the same family circle. We agree with those courts in their applications of the rule.
In his judgment granting the insurer's motion for summary judgment, the trial judge made extensive findings and conclusions of fact on the issue as to whether the injured grandson resided in the same household or family circle as the insured Alberta Fleming.
In Ray and Plough v. Midfield Park, Inc., 293 Ala. 609, 308 So. 2d 686 [1974], this Court held that on motion for summary judgment the trial judge does not possess the power to make findings of fact but only to determine that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
Applying the law to the facts as disclosed by the deposition of George Fleming, we cannot say as a matter of law that the injured party Jeffrey Fleming, is residing in the same household as the insured. It must be remembered that the insurer has the burden of proving that the exclusion is applicable as well as the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. In short, the insurer has not met the latter burden.
On motion for summary judgment, summary judgment is not appropriate unless it appears that the non-moving party could not prevail under any set of conceivable circumstances. Folmar v. Montgomery Fair, Inc., 293 Ala. 686, 309 So. 2d 818, [M.S. February 13, 1975]. The facts adduced from the deposition of George Fleming do not compel this conclusion.
Accordingly, the judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
HEFLIN, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | March 6, 1975 |
975b3c57-4d4b-4c32-aee5-9704f28aa2f5 | Lockett v. Coleman | 308 So. 2d 689 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 689 (1974)
Manervia Browder LOCKETT
v.
Lorenzo COLEMAN et al.
SC 812.
Supreme Court of Alabama.
December 5, 1974.
As Corrected on Denial of Rehearing February 20, 1975.
*690 Charles S. Conley, Montgomery, for appellant.
Oscar W. Adams, Jr., Birmingham, for appellees Peter Shine, Joshua Shine, and Sara Brooks.
MADDOX, Justice.
Manervia Browder Lockett, as administratrix of her late sister's estate, appeals from a judgment entered by the Circuit Court of Montgomery County. She principally argues that the trial court erred in finding that Lorenzo Coleman, the appellee, was the legal husband of her intestate at the time of her death and, therefore, entitled to share in the estate. She also claims the trial court erred in finding that a settlement agreement made between Coleman and other heirs of the estate was valid and binding.
Manervia Lockett was appointed administratrix on February 11, 1971. Sara Brooks, Joshua Shine and Peter Shine, sister and brothers of the deceased, filed claims against the estate in August, 1971. Lorenzo Coleman filed a petition for an accounting and other relief. All of these petitions were presented to the probate court on Montgomery County. While the matter was pending in probate court, the various claimants made a settlement agreement.
On October 6, 1972, the probate court entered an order giving effect to the settlement agreement under which Sara Brooks, Joshua Shine and Peter Shine, were to get $25,000. Coleman was to get $24,000 as settlement in full of his share of the estate.
Other proceedings were had in the probate court which we omit from this opinion. We do note that both the administratrix and Coleman agreed to cancel that portion of the settlement agreement whereby he would get $24,000.
On May 7, 1973, the administratrix filed a petition to remove the estate to the Circuit Court of Montgomery County; the case was removed. In Circuit Court, she asked the court to determine the rights of all parties. The matter was tried in Circuit Court on these issues:
The court, after hearing, found:
Did the trial court err in finding that Coleman was the legal husband of Aurelia Browder Coleman at the time of her death? We think not.
Admittedly, there is evidence that Coleman had been married several times. Apparently, he first married one Evelyn McGill on August 17, 1945. He lived with her two weeks prior to his shipment overseas for eighteen months. Evelyn McGill gave birth to an illegitimate child on February 19, 1946. Upon his return, Coleman found out that "Evelyn McGill Coleman" had been married to one Ira Crain since June 11, 1936. In November, 1955, Evelyn McGill, i. e. Evelyn Crain, filed a bastardy proceeding against Coleman in which she alleged that she was never married to Coleman.
Coleman later married one Helen Dawkins, but subsequently divorced her. He then married Aurelia Browder, the decedent.
The administratrix argues that Lorenzo Coleman was not legally married to Aurelia Browder Coleman. She claims that Coleman's prior marriage to McGill had not been dissolved. We will not set out the evidence which supports the trial court's finding that Lorenzo Coleman was legally married to Aurelia Browder Coleman at the time of her death. We do set forth some of the legal principles involved to show that we find no error in the court's findings. These principles are:
If a marriage is established, it is presumed to be regular and valid. The burden of adducing evidence to the contrary is on the party who attacks it. 55 C.J.S. Marriage § 43c, p. 890; Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So. 2d 46 (1941). One does not meet this burden by a mere showing that one of the parties was previously married to another. Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135 (1953). There is a presumption that the prior marriage has been dissolved by divorce. Jordan v. Copeland, 272 Ala. 336, 131 So. 2d 696 (1961). The presumption is rebuttable, of course. Hammond v. Shipp, Ala., 289 So. 2d 802 (1974).
The trial judge saw and heard the witnesses. Where evidence is heard ore tenus, every presumption will be indulged in favor of the trial court's findings of fact. His findings will not be disturbed unless palpably wrong. 2A Ala.Dig. Appeal and Error.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.
MADDOX, Justice.
Opinion corrected. Application for rehearing overruled and denied.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur. | February 20, 1975 |
f93831cf-5b92-47d0-91f3-815f9f2ca2ac | Weathington v. City of Birmingham | 309 So. 2d 430 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 430 (1975)
Ulyss Eugene WEATHINGTON
v.
CITY OF BIRMINGHAM, a Municipal Corporation.
SC 972.
Supreme Court of Alabama.
March 6, 1975.
*431 William Conway, Birmingham, for appellant.
William C. Walker, Birmingham, for appellee.
EMBRY, Justice.
This is an appeal from a decree of the Circuit Court of Jefferson County declaring § 1567(12-16), Code of Ala., Vol. 14B (hereafter Act No. 1361) constitutional. The Act appears in full in appendix to this decision. City of Birmingham has filed Motion To Strike Transcript and Dismiss Appeal. The Motion To Dismiss is granted.
To properly understand this decision it becomes necessary to set out the facts chronologically. On March 7, 1973, Weathington was convicted in Recorder's Court, City of Birmingham, for the commission of several misdemeanors arising out of a single transaction. His sentences were suspended, and he was placed on probation for three years. On May 29, 1973, Weathington was tried and convicted in Recorder's Court for the commission of other misdemeanors arising from transactions other than those made the basis of his first convictions. Thereafter, on June 4, 1973, following a hearing, his probation was revoked and the previously suspended sentences were put into effect. Weathington then filed petition for the writ of habeas corpus in the Circuit Court of Jefferson County. That petition was denied June 6, 1973. November 13, 1973, on appeal to the Court of Criminal Appeals the order denying the petition was affirmed. Weathington v. City of Birmingham, 52 Ala.App. 77, 289 So. 2d 645, cert. denied 292 Ala. 757, 289 So. 2d 649.
July 17, 1974, he then filed the complaint in this case. It sought declaratory judgment that Act No. 1361 was unconstitutional and injunction to prevent its enforcement. The asserted unconstitutionality, State and Federal, was based on the following: (1) it placed Weathington in double jeopardy; (2) it was a local law providing for the punishment of a crime in violation of Ala.Const., Art. 4, § 104 (1901); (3) it was a local law as passed but had not been published per Ala.Const., Art. 4, § 106, and (4) the legislature had no authority to directly confer the power of suspension of sentences and grant of probation on Recorder's Courts. August 26, 1974, the lower court dismissed this case and declared the Act to be constitutional.
August 27, 1974, Weathington filed another petition for the writ of habeas corpus in Jefferson County Circuit Court. September 5, 1974, Weathington was ordered to be discharged from custody by that Circuit Court.
Previously, on Sept. 12, 1974, Weathington had perfected this appeal from the decree of August 26, 1974, declaring Act No. 1361 constitutional. Thus, at the time of submission of this case to this court it appears that Weathington is under no present legal restraint from the operative effect of Act No. 1361.
For the reasons that follow, we decline to decide any issue concerning the constitutionality of the Act and hold this appeal to be moot.
There is no question that at the time Weathington filed this suit there existed, between him and the City of Birmingham, a justiciable controversy involving Act No. 1361. Shadix v. City of Birmingham, 251 Ala. 610, 38 So. 2d 851. However, by the time this appeal was taken under submission by this court, Weathington had been discharged from custody. We have held on numerous occasions that where an event occurs which renders a case moot prior to this court considering an appeal the appeal will be dismissed because it is not necessary. Chisolm v. Crook, 272 Ala. 192, 130 So. 2d 191; State ex rel. City of Prichard v. Jansen, 271 Ala. 104, 122 So. 2d 736; McDonald v. Lyle, 270 Ala. 715, 121 So. 2d 885; State ex rel. Lloyd v. Morris, 262 Ala. 432, 79 So. 2d 431. This is especially true with reference to actions for declaratory judgments. Copeland v. Jefferson County, 284 Ala. 558, 226 So. 2d 385.
Under the facts of this case, in its present posture, nothing we could presently decide would affect the immediate legal rights of Weathington. Since Weathington is not now in custody, a decision as to the constitutionality of Act No. 1361 would be of no benefit to him. It would merely be a decision in the abstract.
We make this determination that this appeal is moot fully aware of recent decisions of the federal courts on this point. Two of those cases deserve especial comment. In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, an unmarried pregnant woman desired to terminate her pregnancy. She sought a declaration that Texas's abortion statutes were unconstitutional. By the time her appeal from an adverse ruling had reached the Supreme Court of the United States, Roe had delivered her baby. It would thus appear at that juncture the case was properly moot. In holding otherwise the court noted:
In Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct. 1684, 1698, 40 L. Ed. 2d 1, the court considered whether:
Considerations that persuaded the Supreme Court of the United States to consider those cases viable and not moot are not present here. When the sentences of Weathington were suspended and he was placed on probation, he became subject to the threat of his probation being revoked and sentences being put into effect by the Recorder's Court. This situation could have existed for a period of three years. That period is not so short as to fall within the rule of Roe or Super Tire, supra.
Moreover, even were we to assume, arguendo, that no one placed on probation would have the temerity to challenge a legislative act which granted him some measure of freedom through probation, our judgment on the question of mootness remains the same. Code of Ala., Tit. 1, § 7, defines a misdemeanor as any crime not punishable by death or imprisonment in the penitentiary. Code of Ala., Tit. 37, § 594, grants original and concurrent jurisdiction *433 to recorders for the trial of all misdemeanors committed within cities or the police jurisdiction of same. Notwithstanding Code of Ala., Tit. 37, § 586, the punishment in those cases is that fixed by the general laws of this state. Thus it is possible for a recorder to sentence a person convicted of a misdemeanor to a period of confinement in excess of six months; e. g., Code of Ala., Tit. 14, § 4 (hard labor for county for not more than one year), § 5 (imprisonment in county jail for not more than two years), § 34 (imprisonment in county jail for not more than one year).
Simply because there are conceivable situations in which a person may have up to two years with in which to appeal the revocation of probation by challenging the constitutionality of Act No. 1361 does not make this case one where the issues presented are "capable of repetition, yet evading review."
It is apparent that a person in the position of Weathington would have ample time to complete the appellate process in this State. No decision we could render in this case would directly affect the immediate legal rights of Weathington, hence this appeal is dismissed as moot.
Appeal dismissed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.
§ 1567(12). Recorders courts may suspend sentence and grant probation.All recorders courts of municipalities now having or hereafter having a population of 250,000 or more according to the last or any subsequent federal census may suspend execution of sentence and place on probation, as herein provided, any person convicted in said recorders court. (1971, No. 1361, § 1 appvd. Sept. 17, 1971.)
§ 1567(13). Investigation; bond.The said recorders court may make such investigations as it deems necessary and desirable and when directed by the court, the probation officer or such other suitable person or persons that the court may designate shall fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history and present condition of defendant, including, where possible a physical and mental examination. No defendants, unless the court shall otherwise direct, shall be placed on probation or released under suspension of sentence until the report of such investigation shall have been presented to and considered by the court. In all cases where the defendant has made bond prior to the time of the trial and an application for probation is made to the court, the judge of such court may suspend the execution of the sentence, and continue the defendant under the same bond or may require such additional bail as he deems necessary, pending the disposition of the application for probation and such bond shall remain in full force and effect until the application for probation is finally disposed of. (1971, No. 1361, § 2, appvd. Sept. 17, 1971.)
§ 1567(14). Court determines conditions of probation.The court shall determine and may, at any time, modify the conditions of probation and may include among them the following, or any other: That the probationer shall avoid injurious vicious habits: avoid persons or places of disreputable or harmful character: report to the probation officer as directed: permit the probation officer to visit him at his home or elsewhere: work faithfully at suitable employments as far as possible: remain within a specified place: pay the fine imposed and costs or such portions thereof as the court may determine, and in such installments as the court may direct: make reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court and support his dependents to the best of his ability. (1971, No. 1361, § 3, appvd. Sept. 17, 1971.)
*434 § 1567(15). Probation officer's reports; powers and duties; reports privileged. The probation officer, if such be designated, or such person or persons as may be designated by the court, shall investigate all cases referred to him for investigation by the court and shall report in writing thereon. He shall furnish to each person released on probation under his supervision a written statement of the conditions of probation and shall instruct him regarding the same. Such officer shall keep informed concerning the conduct and conditions of each person on probation under his supervision by visiting the probationer, requiring reports, and in other ways and shall report thereon in writing as often as the court may require. Such officer shall use all practicable and suitable methods, not inconsistent with the conditions imposed by the court, to aid and encourage persons on probation and to bring about improvement in their conduct and condition. Such officer shall keep detailed records of his work and shall make such reports in writing to the court as it may require. A probation officer shall have, in the execution of his duties, the powers of arrest and the same right to execute process as is now given, or that may hereafter be given by law, to the sheriffs of this state. All reports, records and data assembled by any probation officer and referred to the court shall be privileged and shall not be available for public inspection except upon order of the court to which the same was referred: provided, however, that in no case shall the right to inspect said reports be denied the defendant or his counsel after said reports have been completed or filed. (1971, No. 1361, § 4, appvd. Sept. 17, 1971.)
§ 1567(16). Court determines period of probation; limitation on length of probation; discharge; arrest for violation of probation; arrest without warrant; hearing.The period of probation or suspension of execution of sentence shall be determined by the court and may exceed the length of the sentence and such period may be extended by the court but shall not exceed a period of three years from date of sentencing. Upon the satisfactory fulfillment of the conditions of probation or suspension of sentence, the court shall by order duly entered on its minutes, discharge the defendant. At any time during the period of probation or suspension of execution of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence. Any probation officer, police officer or other officer with power of arrest upon the request of the probation officer, may arrest a probationer without a warrant. In case of an arrest without a warrant, the arresting officer shall have a written statement by said probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation and said statement shall be sufficient warrant for the detention of said probationer in the county or city jail, or other appropriate place of detention, until such probationer shall be brought before the court. Such probation officer shall forthwith report such arrest and detention to the court and submit in writing a report showing in what manner the probationer has violated probation. Thereupon the court, after a hearing, may revoke the probation or suspension of sentence and shall proceed to deal with the case as if there had been no probation or suspension of execution of sentence, and shall order and adjudge that the sentence be immediately executed. (1971, No. 1361, § 5, appvd. Sept. 17, 1971.) | March 6, 1975 |
f71aec03-ca0d-4b5e-9b39-adead2f3fb17 | Watson v. Alabama State Bar | 311 So. 2d 311 | N/A | Alabama | Alabama Supreme Court | 311 So. 2d 311 (1975)
S. A. WATSON, Judge of Madison County Court, formerly Deputy Dist. Atty. of the Twenty-Third Judicial Circuit
v.
ALABAMA STATE BAR and L. Drew Redden, President of the Board of Com'rs of the Alabama State Bar, et al.
SC 868.
Supreme Court of Alabama.
April 10, 1975.
Jack Giles, Huntsville, for appellant.
William H. Morrow, Jr., Montgomery, Gen. Counsel, Alabama State Bar, for appellees.
William J. Baxley, Atty. Gen., and George W. Royer, Jr., Asst. Atty. Gen., for the State of Alabama, amicus curiae.
John D. Whetstone, Montgomery, for the Ala. District Attys. Assn., amicus curiae.
SHORES, Justice.[*]
This is a companion case to S.C. 867 Simpson v. Alabama State Bar; Redden, President of the Board of Com'rs of the Alabama State Bar et al., 293 Ala. ___, 311 So. 2d 307, this day decided, except that the appellant was a deputy district attorney at the time of the conduct complained of.
The holding in Simpson, supra, is controlling here, It is conceded by the Bar Association and appellant that there is no distinction, for purposes of this case, to be made between a district attorney and a *312 deputy district attorney, who must devote his entire time to the discharge of the duties of his office, and who is prohibited from practicing law under the provisions of Title 13, § 229(12), Code. Such was the case with regard to appellant here.
The decree appealed from is reversed and one is here rendered in favor of appellant.
Reversed and rendered.
All the Justices concur.
[*] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Title 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So. 2d 858. | April 10, 1975 |
da244bba-d023-40e6-a9ce-69b4dafc3458 | Burgess v. Burgess | 309 So. 2d 111 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 111 (1975)
In re Arthur E. BURGESS
v.
Faye Robertson BURGESS.
Ex parte Arthur E. Burgess.
SC 1127.
Supreme Court of Alabama.
February 27, 1975.
Frank M. Bainbridge, Birmingham, for petitioner.
Roderick Beddow, Jr. and James M. Fullan, Jr., Birmingham, for respondent.
MADDOX, Justice.
Petition of Arthur E. Burgess for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Burgess v. Burgess, 54 Ala.App. 396, 309 So. 2d 107.
Writ denied.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur. | February 27, 1975 |
53e3637d-2d98-4056-9ab6-a46aa0b2b979 | McCay v. Big Town, Inc. | 307 So. 2d 695 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 695 (1975)
Herman W. McCAY et al.
v.
BIG TOWN, INC., an Alabama Corporation, et al.
SC 1062.
Supreme Court of Alabama.
February 6, 1975.
Ben L. Zarzaur, Birmingham, for appellants.
Robert D. Norman, Birmingham, for appellees.
MERRILL, Justice.
Plaintiffs appeal from a judgment dismissing their suit against defendant for damages resulting from the destruction of plaintiffs' store building by fire.
Herman McCay and his wife, Mary Shirley McCay, the plaintiffs, leased the building to defendant, Big Town, Inc., and defendant, Bargain Town, U.S.A., guaranteed the performance of the lease by lessee, Big Town, Inc. The period of the lease was October 18, 1967 to December 31, 1977.
In January, 1974, the building was destroyed by fire. On June 21, 1974, plaintiffs filed this suit alleging that the fire was caused by and through the negligence (Count 1) or the wanton conduct (Count *696 II) of the defendants. The defendants filed a motion to dismiss on the grounds that the counts failed to state a claim against defendants upon which relief could be granted and that "It affirmatively appears under the lease attached to the complaint as Exhibit `A' that plaintiffs have waived cause of action against defendant occasioned by negligence resulting in destruction or damage to real or personal property caused by fire."
It is conceded by both parties that the construction and interpretation of paragraph 14 of the lease is determinative of this case. That paragraph reads:
Plaintiffs contend "that the parties intended to waive the negligence of each to the other, but only to the extent of the insurance proceeds," and it is stated in brief that "The appellants admit that they did waive the right to sue for that part of the loss covered by insurance."
We cannot agree that the proceeds of any insurance have any effect on paragraph 14.
The first sentence plainly, clearly and unambiguously states that each party "waives such causes of action either may have or acquire against the other which are occasioned by the negligence of either of them or their employees or agents resulting in the destruction of or damage to real or personal property belonging to the other and located on or in the leased premises and which are caused by fire" and other hazards, not here pertinent, listed in Extended Coverage Endorsements on Standard Fire Insurance policies approved for use in Alabama. The second sentence plainly clearly and unambiguously states, in pertinent part, that each party agrees to cause any fire insurance policy on the property to contain a waiver of subrogation or an endorsement under which the insurance company waives its right of subrogation against any party to the lease agreement in case of destruction or damage by fire.
The simple import of this paragraph, insofar as fire insurance is concerned, is that each party to the lease waives any cause of action against the other in case their property is damaged by fire as the result of negligence of the other, and that the lessors, in their insurance on the building, and the lessees, in their insurance on their personal property in the building, will cause their respective policies to contain waivers of subrogation from the insurers.
This court has held that exculpatory provisions in a lease or contract between private parties are valid and binding upon the parties to the lease or contract. Baker v. Wheeler, Lacey & Brown, Inc., 272 Ala. 101, 128 So. 2d 721; Wheeler, Lacey & Brown, Inc. v. Baker, 269 Ala. 293, 112 So. 2d 461; Life & Casualty Ins. Co. of Tennessee v. Porterfield, 239 Ala. 148, 194 So. 173; American Dist. Tel. Co. v. Roberts & Son, 218 Ala. 595, 122 So. 837; *697 McKinney v. Mobile & O. R. Co., 215 Ala. 101, 109 So. 752, 48 A.L.R. 998.
Rule 12(b)(6), ARCP, permits the defendant to file a motion to dismiss for "failure to state a claim upon which relief can be granted." The lease was an exhibit to the complaint and it is conceded that the construction of paragraph 14 of the lease is controlling. The parties agreed to waive causes of action against each other in case either's property was destroyed or damaged by fire resulting from the other's negligence. This agreement barred plaintiffs' suit and the trial court properly dismissed it.
This action is supported by the following from Wright & Miller, Federal Practice and Procedure: Civil, Vol. 5, § 1357, p. 604:
Another case, closer to the facts here, is Jacksonville News. Print. P. & A. U. No. 57 v. Florida Publishing Co., M.D.Fla. 340 F. Supp. 993 (1973), affirmed on other grounds, C.A. 5th, 468 F.2d 824, cert. denied 411 U.S. 906, 93 S. Ct. 1531, 36 L. Ed. 2d 196, where the court said:
Affirmed.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur. | February 6, 1975 |
a42946a5-1d9e-4fe9-9799-372b20ed519b | Reed v. Shipp | 308 So. 2d 705 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 705 (1975)
Lula Nannie Ella REED and Fannie Reed Simmons
v.
Mary SHIPP et al.
SC 790.
Supreme Court of Alabama.
February 20, 1975.
*706 Brooks, Garrett & Thompson and Everette A. Price, Jr., Brewton, for appellants.
Otts & Moore, Brewton, Joseph B. Nix, Jr., David T. Hyde, Jr., guardian ad litem, Evergreen, for appellees.
JONES, Justice.
This is an appeal by contestants (Lula Reed and Fannie Reed Simmons) from a judgment for proponents (Mary Shipp, Elsie Shipp Pate, Edna Shipp, and Elvis Shipp) in a will contest case. The trial Court directed the jury to render a verdict for the proponents.
We set out the trial Court's entire oral instruction to the jury, including the colloquy between the Court and counsel for contestants:
What "this Judge" did there is now here "subject to review in another Court on another occasion." Failing to find that "the Judge is wrong," and there being no necessity to "straighten him out about this," we affirm.
Mack L. Reed lived his entire life as a bachelor in the Castleberry community of Conecuh County, Alabama, where he died testate on February 16, 1973, at the age of 74. He executed a Last Will and Testament on June 30, 1964, leaving his real property to Mary Shipp, as trustee, in trust for, and proportioned by description among, her three minor children; his household furnishings to his unmarried sisters, Lula and Bertha Reed, with whom he lived; and the residue equally and directly to Edna, Elsie, and Elvis Shipp.
Bertha died in 1968, and Mack sold a 150-acre tract of his original 520 acres to his nephew, Arvis Simmons, on August 8, 1970. On August 19, 1970, he executed a codicil to his 1964 will which reapportioned his remaining real property (still to be held in trust) among the three Shipp children; *708 left his household furnishings to his surviving unmarried sister, Lula; and gave the residue directly and solely to Elvis.
In support of this contention, appellants advance the proposition, with which we agree, that all that is needed to submit the case to a jury is a mere scintilla from which the jury can infer some undue activity in the procurement or execution of the will, and this can be proved by circumstantial evidence. Smith v. Moore, 278 Ala. 173, 176 So. 2d 868 (1965).
The threshold legal question presented is aptly posed and its answer correctly stated by appellants' counsel:
The single dispositive issue, then, is whether an inference is raised by the evidence that Mary Shipp was "active" in and about the execution and preparation of the will, as undue activity is legally defined. Appellants urge:
The "other evidence" may be summarized: Mary Shipp and her husband, as neighbors of Mack Reed, worked for him almost continuously during the last 25 years of his life. Another neighbor "caught" Mack and Mary in 1950 "having a sexual relation in the barn." They were seen together on a day to day basis in the fields, in the truck going and coming from town, and at the livestock sales barns in Brewton and Evergreen. Although Mary's husband, Cary, worked for Mack, he was seldom seen with Mack during these years. Mack also spent considerable time with the children, carrying them in his arms when they were small, playing with them, buying for them, and referring to them as his children.
Lula, the unmarried sister with whom he lived, testified that her brother Mack was "foolish" about Mary; and a neighbor stated that from the conduct of these parties "anybody that didn't know them would have thought it was a man and wife and children."
Appellants contend:
We have no quarrel with the "authorities cited ... that indicate no direct evidence is necessary."
The general rule is set out in 94 C.J.S. Wills § 253, p. 1130:
We observe with interest that one of the cases footnoted under the above quoted proposition is the case of Locke v. Sparks, 263 Ala. 137, 81 So. 2d 670 (1955), the same case cited by the trial Judge in support of his directed verdict. Further, the Locke case clearly holds that, given an illicit relationship, some additional evidence direct or circumstantialof undue influence is necessary to meet the burden of proof.
Appellants do not contend that there was any evidence, direct or circumstantial, that the testator made any disposition of his property "as the result of restraint, or any other agency which poisoned his mind," in *710 connection with the drafting or execution of his original will in 1964. Nor are we satisfied that the disposition of his property to the Shipp children was "highly unnatural" under the circumstances.
Chief Justice Chilton, speaking for the Court in 1856, in a strikingly similar case, stated:
Almost a half century later, the New Jersey Supreme Court in In re: Willford's Will, N.J., 51 A. 501 (1902), reached the same conclusion in a similar factual context, and observed:
See also Dees v. Metts, 245 Ala. 370, 17 So. 2d 137 (1944).
At any rate, it is settled law in Alabama that no presumption of undue activity in the procurement of a will amounting to fraud or undue influence arises from the mere disposition by the testator of his property to these children whom he loved *711 and treated as his own. If they were indeed his children, or if he thought they were, influenced to provide for them he may have been; but unduly influenced, as that term is legally understood, is entirely another matter.
Alternatively, appellants seek to have us view this evidence as constituting some inference of undue activity in the procurement of the codicil to the will. The challenge is intriguing, but judicial restraint requires that we not decide some issue wholly unnecessary to our opinion.
While it is established law in our state that a codicil republishes a will as of the date of the codicil, and that the two instruments are construed as one instrument as of the date of republication (Kelley v. Sutliff, 257 Ala. 371, 59 So. 2d 65 (1952)), this is a rule of construction which is inapplicable to the principle of undue influence.
Central to "undue influence" is the second element set out in the trial Court's charge, i. e., "a person must have been favored under the will or must have done something which caused people close to her to be favored...". The trial Court's finding that "... of course there were favored beneficiaries under the will" necessarily referred to the original will, because, as we have seen, the codicil merely conformed the testator's prior wishes at the time of the original willto the current status of his property holdings at the time of the codicil. It is apparent that the testator's execution of the codicil was a mere updating of his personal affairs. Indeed, under the codicil the children received an aggregate of 150 acres less by virtue of a prior conveyance, while Lula (the testator's sister and one of the contestants) received all rather than ½ of the household furnishings by virtue of Bertha's prior death.
Assuming, without deciding, that Mary "unduly influenced" the testator to execute his 1970 codicil to his 1964 will, we must yet ask: What did her children, as "favored beneficiaries" under the original will, gain by way of the codicil? Clearly, since the only result thereby affected was a reapportionment of the testator's remaining real property (150 acres less than originally devised), the question is self-answeringabsolutely nothing.
There was no error in the action of the trial Court in directing a verdict for the proponents of the will.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.
[1] By stipulation of the parties, incorporated in the pretrial order, "undue influence" was the only issue in the case.
[2] See APJICivil, Will Contest, 38.09. | February 20, 1975 |
0f8dc52c-b190-433e-b9ee-812e04ebcfeb | Burgess Mining & Const. Corp. v. City of Bessemer | 312 So. 2d 24 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 24 (1975)
BURGESS MINING & CONSTRUCTION CORP., a corp.
v.
CITY OF BESSEMER, Alabama, a Municipal Corporation.
SC 688.
Supreme Court of Alabama.
March 6, 1975.
Rehearing Denied May 1, 1975.
*25 Bainbridge & Mims, Birmingham, Stone, Patton & Kierce, Bessemer, for appellant.
McEniry, McEniry & McEniry, Bessemer, for appellee.
HEFLIN, Chief Justice.
Appellant-plaintiff Burgess Mining & Construction Corp. (Contractor) appeals from a judgment rendered in favor of the appellee-defendant City of Bessemer, Alabama, (City) on three counts of a complaint on which the Contractor sought to recover from the City the sum of $35,550.94 for performing additional work under a contract to construct an airport for the City.
On November 25, 1969, the City entered into a contract with A. E. Burgess Company, Inc. (whose name was later changed to Burgess Mining & Construction Corporation) for the construction of an airport on a unit-of-work basis to be performed at a unit price, the total of which was estimated to be $571,221.40. The case was submitted to the trial court on the contract between the parties and other documents agreed to in open court without any oral testimony. By agreement of the parties, judgment was awarded the Contractor on Counts 3 through 5 in the sum of $2,938.00 plus interest. The trial court found against the Contractor on Counts 1, 2, and 6, as last amended, which claimed damages for breach of contract and for work and labor done. The trial court overruled the Contractor's motion for a new trial. The appeal before this court is pursuant to Rule 26 of the Revised Rules of Practice in the Supreme Court (abridgment of record by agreement rule) with the record being composed of an agreed statement of evidence and facts along with three documentary exhibits.
The review on this appeal is limited to the Contractor's claim of $35,550.94 plus interest, which is the subject of Counts 1, 2, and 6 of the complaint as amended.
*26 The parties have agreed that the basis for this claim involves only matters dealing with the construction of the sub-base course of the runway of the airport. During construction of the sub-base course, it became necessary for the Contractor to obtain materials (sand-clay, sand-clay gravel, disintegrated granite, top-soil, and bonding and blending filler) from places outside the project area to bring it up to the specifications. The amount to which the Contractor was entitled is not disputed. The only issue is whether the Contractor is entitled to recover the cost of this outside material.
The Contractor contends that the City warranted and provided in the contractual documents that the Contractor had the right to use excavated material on the project site to build the sub-base course for the runway, and that there were sufficient materials at the project site to build it according to the specifications. The Contractor asserts that such warranties and provisions were breached when the material in the project area did not comply with the specifications and it was required to obtain material from sources outside the project area.
The Contractor further asserts that its Exhibit 3, a single sheet entitled "Mechanical Analysis and Classification of Representative Examples," contained positive statements that there was sub-base material in the project area of a quality and quantity sufficient to meet the specifications for the sub-base course. This exhibit appeared to represent a mechanical analysis of soil material obtained by borings in the project area as well as a classification of representative soil samples. At the bottom of this exhibit appear handwritten figures and words which the Contractor refers to as "calculations." The Contractor further contends that these "calculations" showed that 7,123 cubic yards of material were required to build the sub-base course, and that 110,000 cubic yards of material on the project site met the specifications and were available for this purpose. The Contractor's position is that in the contractual documents, which included Exhibit 3, there were positive assertions that should be interpreted to mean "if you use the material in the project area for the sub-base course, it will meet the specifications and sufficient material is available at the project site." In addition to the alleged positive statements in the said Exhibit 3 that there was sub-base material of sufficient quantity and quality in the project area, the Contractor asserts that there were certain special provisions added to the contract which supported its position. Such provisions are as follows:
* * * * * *
* * * * * *
The Contractor further asserts that the word "may" in these provisions should be construed as "shall" or "must" since this was the intention of the parties. While the normal use of the word "may" connotes a permissive character, the word can on occasion have a mandatory nature. Whether a permissive or mandatory construction is applicable depends on the apparent intention as gathered from the context, considering the whole instrument in which it is used. See 57 C.J.S. at p. 456.
The City, for one of its answers to the Contractor's position, points out that Section 20-04 of the standard specifications provided:
The Contractor asserts in reply that when plans and specifications are furnished by an owner which show positively that the owner's analysis of earth borings in the project area meets the specifications, then a Contractor is not required to make investigations or tests to determine whether material meets the specifications for the construction. A number of federal cases, including United States Supreme Court decisions and decisions of the Court of Claims, are cited in support this position. United States v. Spearin, 248 U.S. 132, 39 S. Ct. 59, 63 L. Ed. 166 (1918), is one of the cases cited by the Contractor. In that case an unforeseen hazard appeared while the work was being performed according to the plans and specifications, resulting in the Contractor's refusal to proceed further unless the government paid him to remove the hazard. The government refused to pay and cancelled the contract. The Court awarded the Contractor the amount due for work completed plus the profit he would have earned had he completed the work. In reaching this conclusion, the Court said:
Before determining whether such cases are applicable to the case at bar, this court must first determine the threshold issue of whether the Contractor has met the burden of proving the presence in the contractual documents of the alleged positive assertions that the material in the project site met the specifications as to quality and quantity. It is rather clear that if Exhibit 3 does not contain the alleged positive assertions, then the Contractor has failed to meet this burden of proof. As to the alleged positive assertions appearing in Exhibit 3, the City's position is expressed in these words in its brief:
The trial court in its opinion and judgment recited the following provision in the contract:
The trial court found that such provision in the contract was perfectly clear, and that the Contractor was in nowise misled by the plans and specifications submitted by the City, and that the City was not liable to the Contractor. The record and the briefs and arguments of the Contractor have not convinced this court that the word "may" should be construed in a mandatory sense, or that "positive assertions" as to the quality or quantity of the material appeared in or on Exhibit 3, or that the trial court erred. Therefore, this case is due to be
Affirmed.
MERRILL, BLOODWORTH, MADDOX and FAULKNER, JJ., concur. | March 6, 1975 |
7a63bc5e-b3a8-41a1-b3d5-11b92490f535 | Almon v. CHAMPION INTERNATIONAL CORPORATION | 310 So. 2d 207 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 207 (1975)
Everett L. ALMON
v.
CHAMPION INTERNATIONAL CORPORATION, a corporation.
SC 873.
Supreme Court of Alabama.
March 20, 1975.
*208 Everett L. Almon, pro se.
J. Robert Fleenor and Samuel H. Franklin, Birmingham, for appellee.
EMBRY, Justice.
This is an appeal, per Code of Ala., Tit. 7, § 1057, from an order granting a preliminary injunction, under Rule 65, ARCP, after notice and evidentiary hearing. We affirm.
In the court below the action was filed by Champion International Corporation seeking to quiet title. It concurrently moved for preliminary injunction to restrain defendant, Everett L. Almon, from selling the real estate or timber thereon. The trial court set the motion for hearing, of which notice was given. Almon filed an answer denying the allegations of the complaint. He alleged title to be in him by virtue of a tax deed from the State, and decree of Probate Court confirming sale of real estate to the State by the tax collector. Almon filed a motion to dismiss the motion for preliminary injunction. The trial court proceeded to hear evidence regarding the motion for preliminary injunction.
After the evidentiary hearing an order was entered granting the preliminary injunction. That order is here set out in haec verba:
pending the final hearing and determination of this action.
One question for review is presented: Did the trial court err in granting the preliminary injunction?
*209 Almon's challenge to the propriety of the issuance of preliminary injunction is in part based on asserted lack of showing of peaceable possession, by pleading or evidence, and in part based on claimed insufficiency of evidence to support issuance of it. Recognition has grown that the question of peaceable possession is more properly a matter of proof which ought not be determined from examination of pleadings alone. Williams v. Romano, 289 Ala. 190, 266 So. 2d 750; Ford v. Washington, 288 Ala. 194, 259 So. 2d 226. Of course where a plaintiff fails to prove peaceable possession, he may not obtain relief in a statutory action to quiet title. Palmer v. Rucker, 289 Ala. 496, 268 So. 2d 773; M. C. Dixon Lumber Co. v. Mathison, 289 Ala. 229, 266 So. 2d 841; Dennison v. Claiborne, 289 Ala. 69, 265 So. 2d 853; Bukacek v. Pell City Farms, Inc., 286 Ala. 141, 237 So. 2d 851, cert. denied 401 U.S. 910, 91 S. Ct. 872, 27 L. Ed. 2d 809. Such proof is adducible only in a full trial on the merits.
As to sufficiency of the evidence we look to the specific findings in the order issuing the preliminary injunction. If the findings are supported by credible evidence the order will not be disturbed. Williams v. Romano, supra; Lott v. Keith, 286 Ala. 431, 241 So. 2d 104; Norton v. Norton, 280 Ala. 307, 193 So. 2d 750. Decisions of this court are to the effect: 1. In granting or denying preliminary injunctive relief, the trial judge is vested with wide judicial discretion. 2. Absent abuse of discretion in granting or refusing to grant preliminary injunctive relief the exercise of that discretion will not be disturbed on appeal. 3. Consideration is accorded the relative advantages and disadvantages resulting from granting or denying preliminary injunction.
The order granting preliminary injunction, supra, specifically found: "after hearing testimony that the Defendant is committing acts or is about to commit acts as set forth in Plaintiff's Motion, and will continue to do so unless restrained by order of this Court, and that irreparable injury, loss, or damage will result to Plaintiff before a final hearing on the merits may be had." There was evidence tending to show: Almon had made arrangements to sell some of the property in question; the land had been cleared and staked out in lots by persons other than Champion's employees. This finding, based on evidence heard by the trial judge, is clearly sufficient authority for discretionary motivation to grant the injunctioncertainly one which is temporary that preserves the status quo pendente lite.
Objection was made to the introduction by Champion of a deed showing a different corporate grantee than Champion. If receipt of same in evidence was error it did not run afoul of Alabama Supreme Court Rule 45. The statement by Judge Holladay at that point in hearing demonstrates:
The trial judge did not abuse the discretion with which he is properly endowed, therefore he will not be reversed.
Affirmed.
HEFLIN, C. J., and MERRILL, BLOODWORTH and FAULKNER, JJ., concur. | March 20, 1975 |
975e944e-e67c-4dee-9eef-37a14c0fbe7e | Osner v. State | 310 So. 2d 247 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 247 (1975)
In re Joel OSNER
v.
STATE. Ex parte Joel Osner.
SC 1108.
Supreme Court of Alabama.
March 13, 1975.
Rehearing Denied April 10, 1975.
Bedford & Bedford, Russellville, for petitioner.
No appearance for the State.
SHORES, Justice.
Petition of Joel Osner for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Osner v. State, 54 Ala.App. 520, 310 So. 2d 241.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | March 13, 1975 |
420e55ff-cf5b-4018-9a36-dc8ac198279e | Bateh v. Brown | 310 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 186 (1975)
Fred BATEH
v.
Richard Hail BROWN et al.
Joseph A. BATEH, Jr.
v.
Richard Hail BROWN et al.
SC 641, SC 641-A.
Supreme Court of Alabama.
February 20, 1975.
Rehearing Denied April 3, 1975.
*188 William M. Acker, Jr., Ferris S. Ritchey, Jr., Birmingham, for appellants.
McMillan & Spratling, Birmingham, for appellees.
Rehearing Denied April 3, 1975, in No. SC 641-A.
JONES, Justice.
This is a joint appeal from the Circuit Court of Jefferson County wherein two judgments based on jury verdicts in two separate suits were rendered in favor of Richard Hail Brown (defendant-appellee) and adverse to Joseph Bateh, Jr., and Fred Bateh (plaintiffs-appellants). While the cumulative relief sought by the two suits was the return of 75,000 shares of capital stock of Southeastern Enameling Company (SECO), which were allegedly being wrongfully withheld by Brown, Joe's suit specifically sought either the return of 37,500 shares of SECO stock together with the value of the hire or use thereof during the period of detention, or in the alternative the sum of $30,000 for money had and received, and Fred only sought the return of 37,500 shares of SECO stock. Plaintiffs' motions for new trials were overruled; hence these appeals.
The facts of these cases are rather complicated and since many of them are in dispute among the various parties, we will first outline the general scope of the transaction involved and then delineate the conflicting contentions among the parties.
Brown and Joseph Bateh, Sr. (father of Joe and Fred), were equal partners in the B-D Development Company (B-D) from December, 1965, to March 22, 1966 (the time of the transaction in question). During that period, Brown had conversed with the original controlling stockholders of SECO regarding the selling of their shares in SECO. The talks culminated on March 22, 1966, and the opportunity arose whereby 119,968 shares of SECO became available for purchase for the sum of $47,500. At that time, B-D owned a substantial amount of SECO's common stock and it now desired to make the purchase and gain controlling interest in SECO.
A $20,000 down payment for the 119,968 shares was required, but B-D lacked the necessary funds. Bateh, Sr., put up $30,000 toward the purchase price, all or substantially all of which came from a "common pool" which the Batch family, including Joe and Fred, jointly maintained.
The disputed testimony is as follows:
They contend that the $30,000 was furnished by their father out of the "common pool" so that they (Joe and Fred) would each own 37,500 shares of SECO stock. It was understood that the stock represented by the balance of the purchase price, $17,500 (secured by a pledge agreement), would be purchased and owned by B-D. *189 (It appears that the remaining 44,968 shares which B-D would then own, after giving appellants the 75,000 shares claimed by them, would be sufficient to give it controlling interest in SECO.) The $30,000 paid over by Bateh, Sr., was done in his capacity as their agent for the purpose of acquiring the stock in their names. It was understood and agreed that Brown would take title to all of the 119,968 shares as agent for appellants and B-D, to be later transferred in accordance with their proportionate interests.
After the purchase price had been fully paid, title to the 75,000 shares was to be placed in the correct names (Brown had all the shares placed in his name during the period that the stock was pledged to secure the balance owed to the sellers, and it appears that on June 5, 1967, the balance owed to the sellers was paid in full); but Brown, Bateh, Sr., and B-D failed to deliver the stock to them and also failed to transfer their stock on the transfer books of SECO.
He contends that nearly all the stock owned by B-D was purchased in his name. (He was apparently the managing partner of the B-D Company and when various acquisitions were made, they were usually purchased in his name.) Bateh, Sr., was "very active in the buying and selling of stock" and Brown regarded Bateh, Sr., as the one with the greatest knowledge of buying and selling of stocks in the partnership. (However, during the testimony of Charles Morton, the bookkeeper for SECO at the time of the transaction in question, it was stated that from 1962 to 1970 only 10% or 15% of Bateh, Sr.,'s time was devoted to the joint interests of Brown and Bateh.)
When he discussed with Bateh, Sr., the acquisition of the 119,968 shares, he was "pretty sure" that he told him that the stock was bought in Brown's name and that nearly all of the stock owned by B-D was bought in his name. The $30,000 given by Joe and Fred to Bateh, Sr., was a loan to Bateh, Sr., for the use of the partnership; therefore, Joe and Fred have no legal claim to the stock. He knew that Bateh, Sr., put the loan in his sons' names, but he did not know until a year later that the transaction was on the books that way; that on the page of the ledger of B-D Company where a ledger card was labeled "notes payable," there were entries "First National Bank of Birmingham" and several other places where money was borrowed. The ledger sheet showed "Joe Bateh, Jr., $30,000." There was written on this same page a note in Ms. Cole's (a secretary-bookkeeper) handwriting asking, "When is interest payable?"
He never instructed either Ms. Cole or Charles Morton to accrue and reflect interest on any of the accounts payable, and he never gave Ms. Cole any instructions whatsoever on bookkeeping. It was the practice of B-D Company that when the partners would loan money to B-D, it would be entered in the books as an account payable. It was customary at B-D that Bateh, Sr., could write himself a check on the money owed him by B-D or to draw a check any time when there was a loan on the books outstanding to either him or a member of his family. Later, when there was sufficient funds in the B-D account, the checks would be cashed. It was not the custom of B-D to pay interest on loans to B-D by the partners or members of the Bateh family. (It appears that, in the transaction in question, Bateh, Sr., did not draw any checks payable to Joe or Fred for the $30,000 advanced to him.)
The first time he heard from the Bateh family that they were claiming stock in their own name, rather than as part of the partnership, was in June or July of 1969. He did admit, however, that in 1967 there was some conversation between Bateh, Sr., and himself regarding letting the "boys" (Joe and Fred) have some preferred stock in SECO. It was August of 1967 when the conversation arose about Joe and Fred *190 wanting SECO stock in their own names. Bateh, Sr., had stated that some stock ought to be given to his boys for the loan.
Several months later, the stock question arose again. At this time, he volunteered to give Bateh, Sr., some preferred stock (a $20,000 share certificate) for his sons. When this conversation took place concerning giving the boys stock, preferred stock was discussed. Bateh, Sr.'s only complaint about the stock was that it was not callable, but the voting rights were never mentioned by Bateh, Sr., at this time.
There were no check swaps or checks given for the $30,000 deposited to B-D's account. It appeared from the ledger that the $20,000 which went for the down payment on that stock came out of money deposited on or about that time from sources in the Bateh family.
Brown said to him "we should accrue interest on this account"referring to the $30,000 entrythough Morton never accrued interest on the account. Also, he talked to Bateh, Sr., in the presence of Ms. Cole and informed Bateh, Sr., of Brown's wishes; but Bateh, Sr., replied, "No, we are not due interest, don't record any" or "don't pay any." At no time was interest paid on the account. This conversation took place in 1967.
In the late summer or fall of 1967, a conversation took place in Brown's home to which he was a party. Brown was discussing putting some stock in Joe and Fred's names. Brown did not name what kind of stock when mentioning the transfer of stock. It was in subsequent conversations that Brown mentioned "preferred" as the method of payment. Later in 1967, he explained to Bateh, Sr., that the stock was preferred non-voting. (The transaction which is the subject of this suit is set up on the books of the B-D Company as an account payable to Bateh, Jr.)
(At the time the $20,000 share certificate was offered to Bateh, Sr., for his boys, the B-D Company was financially insecure.) Morton came up to him and said, "Here is preferred stock worth $3.00 per share." It was about 5 P.M. and the office was closing. He replied to Morton, "I don't want preferred stock"; but "I took it home with me and I read it, and I found out the stock was $1.50 a share and not $3.00. I gave it back to Morton the next morning after I read it at home." He told Ms. Cole his children were buying the $30,000 worth of stock for themselves.
The evidence also discloses the following: Joe and Fred at no time made any request for a note or other evidence of indebtedness for their "loan" to B-D. From time to time the B-D Company had made investments for the Bateh family. Sometime between 1959 and 1969 the Bateh family had bought stock in the Ozark Motel where the procedure was to give B-D money in return for stocks. B-D not only made investments in its own name but that of members of the Bateh family as well.
The partnership was dissolved on May 14, 1970, by court order, and the corporate stock owned by B-D was divided equally between Brown and Bateh, Sr. (For a more detailed history of this case, including other provisions of the trial Court's decrees in two separate actions and their reversals, see Bateh v. Brown, 289 Ala. 695, 271 So. 2d 830 (1972); and Bateh v. Brown, 289 Ala. 699, 271 So. 2d 833 (1972).)
The issues raised on this appeal are whether the trial Court erred in:
Appellants assert that the granting of the motion for consolidation was error due to Joe's alternative claim for either the stock, or its monetary equivalent, and Fred's claim for only the stock since it confused the jury as to the actual nature of the relief sought.
ARCP, 42(a), states:
Appellants acknowledge the fact that a trial court has broad discretion as to whether it will allow consolidation, but they argue that consolidation should not be allowed where it may result in prejudice to one or more of the parties. Ex parte Miller, 273 Ala. 453, 142 So. 2d 910 (1962); Ex parte Montgomery, 247 Ala. 497, 25 So. 2d 171 (1946). While we are in complete agreement with the foregoing contention, we do not feel that consolidation, here, resulted in prejudice to either of the appellants. Plaintiffs were two brothers, suing the same partnership and partner jointly and severally on claims arising out of the same transaction. Nor do we agree with the contention that Joe's prayer for alternative reliefthe monetary equivalent of the stockcan be deemed such an inconsistent form of relief as to render inapplicable the consolidation procedure provided by Rule 42(a). The recovery of either (the stock or its monetary equivalent) would place each of them in substantially the same position as he was at the time just prior to the original transaction in question.
We hold that consolidation of these two actions was not such an abuse of discretion on the part of the trial Judge as to require reversal. This is further demonstrated by the clarity of the trial Court's instructions to the jury delineating the distinction between the two claims.
The refused charge pertaining to the elements of a resulting trust is as follows:
In support of their argument that the refusal of the foregoing charge was error, appellants quote from Merchants Nat. Bank of Mobile v. Bertolla, 245 Ala. 662, 18 So. 2d 378 (1944):
For purposes of review, we will assume without deciding the correctness of the legal proposition set forth in the above requested instruction. Conspicuously missing therefrom, however, is the requisite factual determination by the jury of the crucial issue in the litigation, i. e., whether the purchase money for the stock was a loan to the partnership as contended by Brown, or, as contended by Joe and Fred, money paid over by Bateh, Sr., as their agent, for the purchase of stock in their individual names.
The application of the legal principle contained in this requested instruction is necessarily dependent upon a reasonable satisfaction by the jury from the evidence of the factual contentions of Joe and Fred with respect to the use of the money. Absent this hypothesis, the requested instruction is rendered a mere statement of an abstract legal principle; and, in accordance with well-established rules of appellate review, we will not reverse the trial court for its refusal of a written requested charge which reflects a general statement of law not hypothesized on the evidence, or which does not instruct the jury of its relation to the issues being litigated. Bagley v. Grime, 283 Ala. 688, 220 So. 2d 876 (1969). (As to the nature and measure of proof required to establish a resulting trust, see Banks v. Banks, 253 Ala. 252, 44 So. 2d 10 (1950).)
In so holding, we pretermit any consideration of two secondary issues: 1) whether the requested charge, assuming the inclusion of the hypothesis, confuses the distinction between the legal theories of resulting and constructive trusts;[1] 2) the procedure for the trial of legal and equitable claims in the same cause under our merged system. See Donaldson and Wall, "Merger of Law and Equity in Alabama Some Conclusions," Vol. 33, No. 2, The Alabama Lawyer, p. 134 (1972). See also ARCP, 39.
As to the agency question, the refused charge stated:
The law is clear to the effect that a refusal of a written charge is not error where the court's oral instructions covered the principles sought to be enunciated in the refused charge. Gilmore Industries, Inc. v. Ridge Instrument Co., 288 Ala. 127, 258 So. 2d 55 (1972); ARCP, 51.
In its oral instructions, the Court stated:
Appellants contend that such was an "all or nothing" charge since it implies that Bateh, Sr., could either be a representative of his sons or of B-D, but not both at the same time. With this we cannot agree since the natural interpretation of such a statement is that he either acted solely for his sons, or for both his sons and B-D. In fact, if Bateh, Sr., was acting solely for his sons, then he necessarily could not have been acting as a representative of the partnership so as to bind it by his acts.
Appellants also assign as error the Court's giving of the following oral instruction:
They claim that such a charge is both misleading and incorrect since it created confusion in the minds of the jurors as to just which of the two partners would be liable. A reading of the following italicized portions of the charge, however, clearly shows that under this hypothesis both Brown and Bateh, Sr., would be liable to appellants:
Lastly, appellants contend that the verdict of the jury was contrary to the preponderance of the evidence. As to this assignment of error, it should be noted at the outset that four basic rules control our scope of review:
Appellants cite various excerpts of the evidence which they claim lead to the unavoidable conclusion that Joe and Fred intended to and did buy the SECO stock. They stress the fact that the deposit slips reflect Joe and Fred's names in B-D's ledger.
The record reveals, however, that Joe also testified, "I assume the deposit slip reflects my check and was drawn from my personal account, but upon reflection I do not knowI could not find any records reflecting that I wrote a check ... The purpose of books at a business is to tell a picture and record itin all of the books at SECO there is not one entry that says my brother and I are entitled to the stock."
While it is true, as appellants claim, that they acquired an interest in the joint venture with the motel, in that case, as Brown stated, "This involvement was pursuant to a written joint venture agreement."
Additionally, the following facts were disclosed: Joe and Fred never said anything to Brown about receiving stock from the transaction; Bateh, Sr., could not really remember where the purchase money came from; Bateh, Sr., told Brown that "he was to give the boys something for the loan."; and Peyton Bibb, the lawyer who negotiated the transaction, never heard from either Brown or Bateh, Sr., that Joe and Fred were to receive any of the stock.
Clearly, there is sufficient evidence to support a jury verdict in favor of appellees.
Affirmed.
HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX and SHORES, JJ., concur.
[1] For a discussion of the distinction between these types of trusts, see Costell v. First National Bank of Mobile, 274 Ala. 606, 150 So. 2d 683 (1963). | February 20, 1975 |
8e3feb71-9ca2-4259-91b1-321b14374df8 | Lawrence v. Gayle | 312 So. 2d 385 | N/A | Alabama | Alabama Supreme Court | 312 So. 2d 385 (1975)
Arvil Jean LAWRENCE
v.
H. Jean GAYLE, as Mayor of the City of Warrior, et al.
SC 792.
Supreme Court of Alabama.
April 17, 1975.
Rehearing Denied May 22, 1975.
*386 Jones & Landrum and Roger M. Monroe, Birmingham, for appellant.
Rogers, Howard, Redden & Mills, Birmingham, for appellees.
JONES, Justice.
This is an appeal by Arvil Jean Lawrence (plaintiff-appellant) from a final decree of the Circuit Court of Jefferson County denying her declaratory relief and permanent injunction against the Mayor and City Council of the City of Warrior, Alabama (defendant-appellee).
Mrs. Lawrence owns and operates Wayne's Grocery within the police jurisdiction of the City of Warrior. By letter from her attorney dated June 28, 1973, accompanied with a tender of $40, Mrs. Lawrence applied for a retail license to sell *387 "off-premises" beer. The City of Warrior denied her license under City Ordinance 70-3 which requires an annual license fee of $5,000. Mrs. Lawrence claims that such a fee is prohibitive, oppressive, and unconstitutional, and seeks a declaratory judgment and injunction against the City.
The appeal presents the precise issue whether the $5,000 license fee required by the ordinance to authorize the retail sale of beer constitutes a valid exercise of the City's licensing and police powers; or, conversely, whether the amount of the fee of itself constitutes an unreasonable, discriminatory, and prohibitive exercise of such powers. We hold that the ordinance is invalid. The final decree of the trial court is reversed and the cause is remanded for an order not inconsistent with this opinion.
Initially, the City contends that Mrs. Lawrence has committed four procedural errors in this suit, which in themselves warrant our affirmance of the lower Court's decree:
First, the City contends that Mrs. Lawrence's brief is deficient in that her assignments of error are not substantially argued, pointing out that where no assignments of error are mentioned in appellant's brief, they are considered argued in bulk. Zanaty v. Hagerty, 280 Ala. 232, 191 So. 2d 516 (1966). It is true that Mrs. Lawrence makes no direct reference to any of her assignments of error, but since the decree which she attacks is a single entity upholding the validity of the ordinance, and the whole of her argument centers around this point, we find no merit in this contention. Matthews v. Matthews, 292 Ala. 1, 288 So. 2d 110 (1974); Everitt v. Everitt, 279 Ala. 64, 181 So. 2d 504 (1965).
Secondly, the City argues that the Attorney General must be served with a copy of the proceedings when the constitutionality of a city ordinance is challenged in an action for a declaratory judgment. Tit. 7, § 166, Code of Alabama 1940 (Recomp.1958). We agree that this requirement is mandatory and goes to the jurisdiction of the Court. Board of Trustees of Employees' Retire. Sys. v. Talley, 286 Ala. 661, 244 So. 2d 791 (1971). But such failure, defect, or insufficiency must be brought to this Court's attention prior to its submission by written motion; and, failure to timely file this motion, giving appellant reasonable opportunity to correct such defect, constitutes a waiver of consideration by this Court. Supreme Court Rule 52. The City failed to meet the requirements of this rule and hence this argument is without foundation.
Thirdly, the City contends that there exists no justiciable controversy between the parties, since no personal request was made by Mrs. Lawrence for a license. She counters with the contention that she repeatedly made such requests and the City admits that a letter was received from her attorney requesting a license.
It is elementary that omissions and commissions of an attorney at law are to be regarded as acts of the client whom he represents. Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So. 2d 23 (1963); Cooper v. Cooper, 273 Ala. 694, 144 So. 2d 62 (1962); see also Berk v. State, 225 Ala. 324, 142 So. 832 (1932).
Moreover, the evidence is without dispute that the City's refusal to issue the license was not grounded upon the fact that the application came from the attorney rather than from Mrs. Lawrence personally. Accordingly, the "justiciable controversy" requirement of the declaratory judgment action is not here lacking.
Lastly, in pointing out that her letter requesting the license was dated June 28, 1973, and that her ABC license was not issued until August 30, 1973, the City refers to The Alabama Constitution, Art. 4, § 89. This section provides only that the state legislature does not have the power to authorize any municipality to pass any law inconsistent with the general laws of the *388 state. Thus, argues the City, a municipality cannot license a business which is forbidden by the general law. Hewlett v. Camp, 115 Ala. 499, 22 So. 137 (1896).
The fallacy in this argument is that, although the retail sale of beer requires the issuance of an ABC license, such sale is not forbidden by the State of Alabama; and, here again, the evidence is clear that this was not the basis for the City's denial of Mrs. Lawrence's application for the license. At the time of trial, Mrs. Lawrence had a valid ABC license. If, in fact, this had been the basis for its denial, the City could have then rendered this cause moot at the time of trial by simply offering to accept the application and grant the license.
As to the substantive issue before us, Mrs. Lawrence contends that the City's $5,000 beer license fee is both unreasonable and oppressive. In support of this, she argues that the amount of the fee is at least 100 times the amount charged by most municipalities immediately surrounding Warrior, citing the example of $40 beer license fee charged by the City of Birmingham.
We feel that in our analysis of the foregoing issue, for the sake of clarity, it would be judicially prudent to chronologically trace the evolution of our case law in this area.
In State v. Centanne, 265 Ala. 35, 89 So. 2d 570 (1956), the plaintiff brought suit against the City of Prichard for its refusal to issue him a license to sell off-premises beer after he had been previously so licensed by the Alcoholic Beverage Control Board. The City was relying on an ordinance which provided that "no license shall be issued to any establishment which is nearer than five hundred (500) feet to the route usually traveled from any church or schoolhouse."
The plaintiff in Centanne contended that the ordinance violated Art. 4, § 89, The Alabama Constitution, which states:
This Court held that the ordinance was a valid exercise of the municipality's authority:
The ordinance in Centanne was held not to be inconsistent with the authority of the ABC Board since it did not prohibit the sale of beer which the ABC license permitted; but, since it only required more restrictions than the original license, it was not repugnant to the original legislative intent of the licensing statute.
In King v. Kendrick, 265 Ala. 160, 90 So. 2d 88 (1956), the plaintiff, having been previously awarded an ABC beer license, appealed a decree overruling his motion to dissolve a temporary injunction prohibiting the sale of beer by him in his grocery store without a county permit. His contention was that the county was powerless to deny him the permit due to the State's previous licensing of him to sell beer.
In affirming the trial court's decree, this Court said:
It appears that this Court's decision in King to uphold the lower court was grounded both on the prior effectiveness of the zoning regulation and the statutory authority given the building commissioner for the enforcement of the county zoning ordinance.
In Capps v. Bozeman, 272 Ala. 249, 130 So. 2d 376 (1961), the City of Prichard appealed the decree of the trial court awarding mandamus to require it to issue an off-premises beer license to the plaintiff. It had refused to issue one because of an ordinance which provided that the place of the beer sales must not be less than one thousand (1000) feet from any church or school. (The plaintiff was 880 feet from a church.)
This Court, in reversing the decision of the lower court in Capps, stated:
This decision is grounded on the denial of the license on the fact that a valid purpose existed behind the enactment of the ordinance and that the plaintiff had failed to demonstrate to the Court why his interest in being allowed to sell beer should be viewed as paramount to the city's purpose in passing the ordinance.
Paulson's Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So. 2d 330 (1962), was originally thought to establish the major guidelines from which this controversy of state versus city licensing could be resolved with some degree of uniformity. There, the plaintiff-restaurant appealed the decision of the trial court sustaining a demurrer to its petition for mandamus and dismissing it. Application was made to the City of Birmingham for a license to sell liquor (mixed drinks) in its restaurant, but it was refused. The restaurant contended that the statutory scheme of placing the power to issue a liquor license in the ABC Board negated the right of a municipality to approve or disapprove the application.
Mr. Justice Coleman, speaking for this Court in holding that a municipal governing body does have irrevisable discretion whether to grant or withhold its consent and approval of the issuance of a liquor license, wrote:
Thus, the Court seemed to be saying that while a municipality had complete discretion *390 to decide if a liquor license should be issued, regardless of whether one had been previously issued by the ABC Board, it had no right to deny a license for the sale of beer if such had been previously licensed by the State.
In Norwood v. Capps, 278 Ala. 218, 177 So. 2d 324 (1965), an ordinance which required that an establishment licensed to sell beer for on-premises consumption must be more than five hundred (500) feet from any other establishment so licensed was held valid on authority of Tit. 37, § 455, Code of Alabama 1940 (Recomp.1958), which provides:
The Court reasoned that while there was no logical reason why such an ordinance should apply to the sale of beer for offpremises consumption, it was a reasonable and valid exercise of a municipality's police power to place such a restriction on places where beer is consumed in order to stop the possibility of having the entire area become a saloon.
In Campbell v. City of Hueytown, 289 Ala. 388, 268 So. 2d 3 (1972), the City and a zoning ordinance providing that beer could only be sold in those sections of town zoned B-4. There was, however, no section zoned B-4 and thus the sale of beer in the City was, in effect, completely prohibited.
In determining that the ordinance was not proper, this Court stated:
Here, again, based upon the holding of Paulson, this Court seemed to be saying that a municipality may not prohibit the sale of beer where such sale has been previously licensed by the State. However, it does have the authority to levy a reasonable license fee for the privilege of selling such beer.
In Willis v. State ex rel. Flynt Oil Company, Inc., 290 Ala. 227, 275 So. 2d 657 (1973), the Town of Morris prohibited the sale of alcoholic beverages within its limits by an ordinance providing penalties for its violation of a $100 fine, jail, or hard labor not to exceed six months. Flynt petitioned for and was granted a writ of mandamus to compel the Town and its Mayor to issue him a beer license. In affirming that decree of the trial court, Mr. Justice Faulkner, in speaking for the majority, stated:
Once again, impliedly following the rationale of Paulson, this Court held that such total prohibition was unlawful because of the prior issuance of the state license.
Then came USA Oil Corporation v. City of Lipscomb, 293 Ala. 103, 300 So. 2d 362 (1974). Here, the City passed an ordinance prohibiting the sale of beer for offpremises consumption within three blocks of a church. The plaintiff (whose place of business was within the prohibited area), having previously been issued a state license, prayed for mandamus to require the City to issue the license. The trial court's denial of the writ was affirmed on appeal.
This Court, in resolving any apparent conflict with Paulson (holding that while the statute requires approval by the municipality for the issuance of a liquor license, it does not require such approval for the issuance of a beer license), stated:
The rule with regard to the authority of a municipality to regulate (by means of licensing where an ABC license has previously been issued) the retail sale of beer, as evolved from the foregoing cases, may be stated as follows:
A municipality may prescribe conditions as a prerequisite to the issuance of a beer license so long as such conditions bear a reasonable relationship to the health, safety, and public welfare of the community; but it may not, under the guise of its licensing authority, prescribe such conditions as to constitute a prohibition of the sale of beer.[1]
When this test is applied to the $5,000 annual license fee prescribed by the city ordinance here in issue, we are left with no alternative but to hold the ordinance invalid. It would be the height of naivete if we failed to take judicial knowledge of the fact that the only conceivable purpose for fixing the annual license fee at $5,000 is to totally prohibit the sale of beer. The zoning ruse employed in Hueytown is no more effective as a practical matter in prohibiting the sale of beer than the exorbitant and unreasonable license fee of $5,000 in the instant case. The amount of the license fee on its face, coupled with the evidence that the City of Warrior has never issued a beer license, is conclusive on this point.
Reversed and remanded with instructions.
*392 HEFLIN, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.
MERRILL, BLOODWORTH, MADDOX and ALMON, JJ., dissent.
BLOODWORTH, Justice (concurring in part and dissenting in part.)
I concur in Justice Jones' opinion for the majority as to his treatment of the issue of assignments of error.
I must respectfully dissent from the remainder of the opinion as I am of the opinion that no "justiciable controversy" existed between the parties for two reasons.
First, the letter from appellant's attorney of June 28, 1973, seeking a business license to authorize the retail sale of beer was presented before an ABC license was granted appellant on August 30, 1973. Thus, at the time the letter request was made, the City had no authority to grant the license. It was therefore justified in denying the application, and the trial judge was correct in denying appellant relief.
Second, appellant made no further effort to apply for a license to sell beer after she had been denied a license by the City and after receiving her ABC license on August 30, 1973. Moreover, appellant did not comply with a city ordinance (passed August 6, 1973) requiring written application under oath to the city clerk: giving the names of applicants, location, type of business, criminal record, with a copy of the ABC license attached, etc. Appellant's undisputed failure to comply with the requirements of the city ordinance governing the application justified the trial judge's denial of relief. See U.S.A. Oil Corporation v. City of Lipscomb, 293 Ala. 103, 300 So. 2d 362 (1974, per Coleman, J.) and cases there cited upholding municipal ordinances containing similar provisions to those found in the ordinance in the instant case.
The rule of our cases is clear to effect that where no justiciable controversy exists, there is no jurisdiction to grant relief. Tit. 7, § 156, Code, and cases cited.
It is thus that I would not reach the point decided by the majoritythat the ordinance requiring a $5,000 annual license for the retail sale of beer is "invalid." Although I might consider $5,000 to be a prohibitive sum for such license, neither the trial judge nor we reach this issue, in my judgment.
I do not consider it is necessary that I state my opinion on the issue that the Attorney General was not served in view of the result I would reach.
MERRILL, MADDOX and ALMON, JJ., concur.
[1] See Bessemer Theatres, Inc. v. City of Bessemer, 261 Ala. 632, 75 So. 2d 651 (1954); Franks v. City of Jasper, 259 Ala. 641, 68 So. 2d 306 (1953); Ala. Gas Co. v. City of Montgomery, 249 Ala. 257, 30 So. 2d 651 (1947). | April 17, 1975 |
454bc0d6-b529-4e69-8544-709b409ace6c | Hartford Accident and Indemnity Co. v. Oglesby | 308 So. 2d 695 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 695 (1975)
HARTFORD ACCIDENT AND INDEMNITY CO., a corp.
v.
Marshall OGLESBY et al.
SC 758.
Supreme Court of Alabama.
February 20, 1975.
*697 William L. Utsey, Butler, and Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant.
W. H. Lindsey, III, Butler, for appellees, Marshall Oglesby, Anthony Oglesby and Superior Drilling & Well Servicing Co., Inc.
Inge, Twitty, Duffy & Prince, Mann-Kline, Inc., Mobile, for appellee.
JONES, Justice.
Marshall Oglesby, Anthony Oglesby, and Superior Drilling & Well Servicing Co. (appellees) filed this action in the nature of a declaratory judgment against Hartford Accident and Indemnity Co. (appellants) to determine whether a corporate insurance policy issued by Hartford provided coverage on a certain Ford Cobra automobile, or in the alternative to compel specific performance to provide such coverage under an alleged agreement to insure. The Circuit Court of Choctaw County, Alabama, decreed that the subject car was insured to the extent of the full fleet coverage. Hartford appeals assigning as error the insufficiency of legal evidence to support the order. We affirm.
On January 5, 1968, a comprehensive (fleet coverage) automobile liability policy was issued by Hartford through its agent, Mann-Kline (appellee), which covered the automobiles used both by Oglesby's family and his business, Superior Drilling & Well Servicing Company. In December of 1968, Oglesby purchased a high performance Ford Cobra automobile for his seventeen year old son, Anthony, and it too was covered under this corporate policy until January 5, 1969, when the first year of the policy expired.
At that time, Hartford informed Oglesby that the Cobra would be excluded from its coverage due to the age of the driver and the high-powered nature of the automobile. Consequently, a separate policy for this car ($10,000-$20,000 liability coverage) was issued by Hartford, and additional coverage of $240,000 on the automobile was purchased through Mann-Kline from Continental Casualty Company, both of which were effective from January 5, 1969, to January 5, 1970.
In September of 1969, Anthony went off to school and Oglesby informed Walter Roney of Mann-Kline that he himself would now be the principal operator of the Cobra. On direct examination Roney testified, "Mr. Oglesby said, `By-the-way, Tony has gone to high school and will not be driving it [the Cobra].' And I believe I kiddingly said, `This is another service we can perform because we can save you some money and put it all back into the fleet,' because at that time Mr. Oglesby was paying a surcharge in rate for the underage driver. `We can probably put it back in the fleet.'"
*698 On cross examination, the following appears:
The Cobra was involved in the accident which gives rise to this dispute on January 7, 1970; but no more mention is made of the $10,000 policy or the $240,000 policy as to whether they lapsed or were renewed. Notice of the accident was made to Hartford by Mann-Kline under the corporate policy on January 9, 1970, and the renewal issuance date of the corporate policy was February 23, 1970.
Three issues confront us:
As to the "agency" issue, we must first consider the scope of Mann-Kline's agency arrangement with Hartford. The agency agreement between Hartford and Mann-Kline expressly provided Mann-Kline with authority "with respect to all classes of business ... which the company is legally qualified to write in said territory, to:
Mann-Kline and Oglesby argue that this agreement made Mann-Kline a general agent of Hartford, and thus clothed it with the actual authority to bind Hartford to provide coverage on the Cobra. Hartford, on the other hand, contends that Mann-Kline's authority to bind Hartford on this corporate policy was limited since it had made known to Mann-Kline that Oglesby's account had to be cleared through Hartford's Atlanta office. Therefore, says Hartford, the only theory of liability must be based upon apparent authority which it asserts the agent did not have in this case.
The evidence before us is fully supportive of the trial Court's finding that Mann-Kline was a general agent of Hartford, and, accordingly, had actual authority to bind Hartford on insurance contracts.
*699 This Court has generally held that an agent who is authorized "to solicit and receive applications for insurance, and, at his discretion, to countersign and issue policies of insurance entrusted to him by the company for that purpose, must be regarded quoad hoc as the general agent of the company." Sun Insurance Office of London v. Mitchell, 186 Ala. 420, 65 So. 143 (1914). See also Occidental Fire and Casualty Company v. Eidson, 279 Ala. 111, 182 So. 2d 375 (1966); Tutton v. Liverpool and London and Globe Insurance Co., Ltd., 237 Ala. 230, 186 So. 551 (1939); Yorkshire Insurance Co., Ltd. v. Gazis, 219 Ala. 96, 121 So. 84 (1929).
We do not find any limiting features in the agency agreement between Hartford and Mann-Kline, and so cannot agree with Hartford's contentions on this point. If we assume, arguendo, that Mann-Kline's agency agreement was found to be limited in some way, this fact alone would not alter our conclusions.
An agent who is, by certain limitations, less than a general agent may bind his principal as though he were a general agent by apparent authority. While an agent's powers can be limited, and such limitations be binding as between the company and the agent, this could not affect third persons relying upon his apparent authority without notice of his limitations. Continental Casualty Co. v. Holmes, 266 F.2d 269 (5th Cir. 1959); Sun Insurance Office of London v. Mitchell, supra.
Having determined the scope of Mann-Kline's agency arrangement with Hartford, we next consider whether Mann-Kline had the requisite authority to bind Hartford by oral binder in regard to coverage under Oglesby's corporate policy. Hartford relies heavily upon Tit. 28, § 75, Code of Alabama 1940 (Recomp.1958), which states:
It also relies upon Alabama Farm Bureau Mutual Casualty Insurance Company v. Adams, 289 Ala. 304, 267 So. 2d 151 (1972), in contending that Mann-Kline could not make a contract of insurance or any agreement as to a policy contract other than that which is plainly expressed in the actual printed policy issued thereon. Mann-Kline and Oglesby, however, rely on the premise that this statute does not prevent the negotiation of an enforceable parole contract to insure.
In view of the express agency agreement between Hartford and Mann-Kline and the history of the coverage afforded Oglesby by Mann-Kline, we find ample evidence to support the trial Court's holding that Mann-Kline had the requisite authority to make a preliminary oral contract of insurance with Oglesby which would be binding upon Hartford. Under Alabama law, a general agent duly authorized to bind his company by contracts of insurance may make valid contracts by parole. National Life and Accident Insurance Co. v. Claytor, 254 Ala. 413, 48 So. 2d 180 (1950). Furthermore, this Court has held that Tit. 28, § 75, does not prohibit such an oral contract of insurance. National Life and Accident Insurance Co. v. Claytor, supra; Hartford Fire Insurance Co. v. Shapiro, 270 Ala. 149, 117 So. 2d 348 (1960).
As approved in Sun Insurance Office of London v. Mitchell, supra:
Here, especially since the written renewal policy had not been issued, it was perfectly natural for Mann-Kline and Oglesby to enter into an oral binder. 32 C.J., Insurance, § 184, citing Hartford Fire Insurance *700 Co. v. King, 106 Ala. 519, 17 So. 707, states:
As to Hartford's reliance upon the Alabama Farm Bureau case, it is clearly distinguishable from the situation at hand. In that case, there was no special agreement modifying the exclusionary clause, nor any request by the insured to have such a clause modified. In the instant case, Oglesby had requested a change in the coverage of the Cobra, the question being whether the parties had agreed to bind the coverage to take effect upon renewal of the policy.
As to the sufficiency of legal evidence issue, we are bound by the general rule of appellate review: Where the evidence is taken ore tenus, there is a presumption of correctness in favor of the findings of the trial court which will not be disturbed on appeal, if supported by competent evidence, unless clearly and palpably wrong. Sims v. Reinert, 285 Ala. 658, 235 So. 2d 802 (1970); Robinson v. Robinson, 285 Ala. 168, 229 So. 2d 919 (1969).
Hartford, however, argues that there is an insufficiency of legal evidence to support the finding of the trial Court that there existed a binding contract between Hartford and Oglesby to insure the Cobra under the corporate policy; but, again, we must disagree. During the course of the trial, Roney testified that he told Oglesby that the Cobra could probably be put back into the corporate policy and that it was his intention to do so. Oglesby testified unequivocally that Roney did agree to place the Cobra under the corporate policy coverage. Notice of the accident was reported under the corporate policy and no request had been made by Mann-Kline to renew the $10,000-$20,000 policy. There is no indication in the record that this policy renewal was ever issued. The renewal of the corporate policy, omitting the Cobra, was issued well over a month after Hartford received the "proof of loss."
We recognize the general principle, subject to certain refinements, that no unfavorable inference may be drawn from the fact that a party has failed to produce a particular piece of evidence if (1) such evidence was equally accessible to both parties, or (2) its effect would be cumulative. United States Steel Co. v. Butler, 260 Ala. 190, 69 So. 2d 685 (1953).
Equally as well recognized, however, is the rule that the failure of a party to produce a particular piece of evidence, when that party clearly has the ability to produce it and to do so would greatly elucidate some crucial aspect of the controversy, allows the inference to be drawn that such production (or nonproduction) would be detrimental to his case. Cooper v. Grubbs, 262 Ala. 519, 80 So. 2d 284 (1955); Christian Benevolent Burial Ass'n v. Huff, 241 Ala. 119, 1 So. 2d 390 (1941); Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548 (1921).
The failure of Hartford to prove the renewal of the $10,000-$20,000 policy was circumstantial evidence from which the trial Court could infer that Mann-Kline, as agent of Hartford, entered into an agreement with Oglesby to include the Cobra on the renewed corporate policy. This conclusion is strengthened by the further permissible inference from the evidence that there was no intent on the part of any of the parties to leave the Cobra totally uninsured following the expiration date of the $10,000-$20,000 policy. Clearly, all of the parties intended the Cobra to be insured with Hartford under either the separate $10,000-$20,000 policy or the corporate *701 policy. The failure of Hartford to show coverage under the one tends to show an intent to cover under the other.
The final issue (overruling of demurrer) concerns the averments and the nature of relief sought in the bill of complaint. Hartford contends that the trial Court lacked jurisdiction to grant declaratory relief because the controversy was not of a "justiciable" nature; or, more specifically stated, since the corporate policy attached to the bill of complaint shows on its face the omission of the Cobra, the trial Court was limited to an interpretation of the written contract. Thus, argues Hartford, the trial Court erred when it overruled its demurrer to the complaint.
We note from the record that the trial of this cause was concluded prior to the effective date of the ARCP. Even under the then existing common law procedure, however, our Uniform Declaratory Judgment Act, as amended (Tit. 7, §§ 156-168), was accorded the broadest liberality with respect to pleadings. All that as required (as is now the case under Rule 57) of a bill of complaint to withstand a demurrer (now a motion to dismiss) was the averment of facts sufficient to raise a bona fide justiciable controversy between the parties which should be settled. American Automobile Insurance Company v. English, 266 Ala. 80, 94 So. 2d 397 (1957).
The following averments, sufficient to meet this test, are contained in paragraphs 8 and 9 of the bill of complaint:
Here, the "agreement to insure" issue was fully tried by the parties, and the trial Court found that the agent, acting under requisite authority, entered into an oral contract to insure. Associates Financial Services Company, Inc. v. First National Bank of Mobile, 292 Ala. 237, 292 So. 2d 112 (1974); Western Railway of Alabama v. Brown, 280 Ala. 543, 196 So. 2d 392 (1967).
The final decree of the trial Court, holding the Cobra was insured under the corporate policy, was in compliance with the relief sought and within the issues tried by the parties.
Affirmed.
HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX and SHORES, JJ., concur. | February 20, 1975 |
7ae41b17-323e-4521-b731-b39636ec0637 | Lowery v. State | 317 So. 2d 360 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 360 (1975)
In re William N. LOWERY, alias
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1041.
Supreme Court of Alabama.
March 6, 1975.
Rehearing Denied April 10, 1975.
*361 William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for petitioner, the State.
Frank W. Riggs, Montgomery, for respondent.
BLOODWORTH, Justice.
The State's petition for writ of certiorari seeking to review and revise the decision and judgment of the Court of Criminal Appeals in Lowery v. State of Alabama, 55 Ala.App. 511, 317 So. 2d 357, was granted on the ground that "a material question requiring decision is one of first impression in Alabama."
The Court of Criminal Appeals reversed and remanded defendant's conviction for murder in the second degree holding that the trial judge erred in charging the jury that:
In its opinion, the Court of Criminal Appeals wrote:
The trial judge's charge is almost identical to a charge found in the 1893 case of Boulden v. State, 102 Ala. 78, 15 So. 341, wherein this Court held that the following charge correctly defines "malice" in its legal sense and was properly given:
The only material distinction between the two charges is use of "purposefully" in the instant case and use of "intentionally" in Boulden. This is a distinction without a difference.
Two cases appear in Shepard's Alabama Citations as having cited or followed Boulden: McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912) and Patterson v. State, 156 Ala. 62, 47 So. 52 (1909).
In McGuffin, this Court held there was no error in giving the following charge:
Patterson and Boulden were cited as authority.
In Patterson, an almost identical charge was involved, viz.:
In holding there was no error in giving this charge, Justice Denson wrote for the Court in Patterson:
The Cribbs case, referred to in Patterson, supra, holds that the giving of an oral instruction by a court that "malice, in law, does not necessarily mean hatred or ill will, but the intentional doing of an unlawful act" is reversible error unless it contains the added phrase, "without legal justification, excuse, or extenuation." Had such phrase not been substantially covered in the instant charge, the latter would have been bad.
Thus, Boulden is direct authority for the proposition that the giving of a charge identical in all material respects to that given in the present is not reversible error.
In both McGuffin and Patterson, there were almost identical charges with the additional clause, "It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation" which the Court of Criminal Appeals says clarifies the ambiguity in defining "malice" to be an act. No doubt this additional phrase makes for a better instruction although we are unwilling to hold that without it the giving of the instant charge constituted reversible error.
Moreover, charges of similar import have been held to be proper to give and to be sustained by authority in Coates v. State, 1 Ala.App. 35, 56 So. 6 (1911) where the charge was, inter alia,
and in Stoball v. State, 116 Ala. 454, 23 So. 162 (1897) where the charge was, inter alia,
As the reason for its reversal, it is suggested by the Court of Criminal Appeals that "some of the jurors could have found the facts to be sufficient to constitute a crime no greater than first degree manslaughter and, under the circumstances, would be compelled to return a verdict of murder under the preceding definition of malice given by the trial court."
In view of the court's oral instructions on "malice" and on the various degrees of manslaughter and murder, particularly manslaughter in the first degree, this suggestion appears unfounded. The court instructed the jury, inter alia:
It must be concluded that if the trial judge, in his oral instruction on "malice" in the instant case, had left out the phrase "without just cause or legal excuse" (as in the Cribbs case) the Court of Criminal Appeals' rationale for reversal would be valid. This was the exact situation in Redden v. State, 7 Ala.App. 33, 60 So. 992 (1913) where the trial judge charged:
In reversing the cause, the Court of Appeals held:
Motion of defendant to dismiss the petition for writ of certiorari is denied. The judgment of the Court of Criminal Appeals is reversed and remanded.
Motion denied. Reversed and remanded.
HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER and SHORES, JJ., concur.
JONES, J., dissents.
ALMON and EMBRY, JJ., recuse themselves.
JONES, Justice (dissenting):
This Court has now decidederroneously in my opinionthat malice, in its legal definition, means a wrongful act purposefully done and without just cause or legal excuse, rather than the intent or state of mind with which such wrongful act is committed. I respectfully dissent.
The fallacy of so defining malice is apparent in the following example: A defendant *364 is charged with homicide. The state concedes that the element of premeditation necessary for first degree murder is lacking, but contends that the evidence is sufficient for a jury's finding of malice in support of a guilty verdict for second degree murder. The defendant says that he killed the victim in a heat of passion under such extenuating circumstances as would allow the jury to return a verdict for first degree manslaughter rather than second degree murder.
In other words, the triable issue for determination by the jury is whether the defendant is guilty of murder in the second degree or manslaughter in the first degree. Continuing our example, the trial court instructs the jury as follows:
For the purpose of appellate review, the hypothetical setting above is essentially the situation here before us.[1] Look again at the key words "malice means a wrongful act . . ." Do these words, in the trial court's definition of malice, provide the jury an intelligible definition as they seek to determine whether the defendant is guilty of second degree murder (for which a finding of malice is essential), or first degree manslaughter (where the element of malice is nonessential)?
Obviously, the question is self-answering. If malice is the wrongful act, then there is nothing left for the jury's determination. The homicide, here admitted by the defendant, is a wrongful act and, thus of itself (according to this definition), constitutes the element of malice. The definition, "malice is a wrongful act," does not leave to the jury the determination that malice may be inferred from the doing of a wrongful act, but instructs them definitively that malice is a wrongful act. Therefore, the Court's definition of malice is the equivalent of a directed verdict of conviction for murder in the second degree.
Add, now, the words "purposefully done" so that we are looking at the phrase "malice means a wrongful act purposefully done." Do these last two words in any way change or modify our analysis of the definition thus far? The answer must be, "No"; and this for the reason that "purposefully done" describes equally the two possible jury verdicts. No qualifying or distinguishing feature as between second degree murder and first degree manslaughter is denoted by the addition of these two words. "Purposefully done" only adds the element of intent which is an essential element of both offenses.
Now, to complete the definition, add the remaining words, "and without just cause or legal excuse," so that the full language reads, "malice means a wrongful act purposefully done and without just cause or legal excuse." Again, we ask, do these concluding words serve in any way to qualify or render less valid our initial analysis of the trial court's definition of malice? And, again, we must answer, "They do not." "Without just cause or legal excuse" are terms equally applicable to second degree murder and first degree manslaughter.
*365 This can be forcibly demonstrated by reverting the phrase from the negative to the positive and observing that one who commits a homicide with just cause or legal excuse would be guilty of neither offense.
All that I am trying to say was said long ago, and said better, by Justice Clopton in Cribbs v. State, 86 Ala. 613, 6 So. 109 (1888);
After stating the foregoing definition of malice in the context of the alternative verdicts of murder and manslaughter, the Court then concluded:
The majority opinion takes this last quoted sentence from Cribbs as authority for affirming the correctness of the definition of malice given in this case. The fallacy here is twofold:
There is an old retort by one advocate to another which admonishes, "Strive mightily for what you believe is right, but at least consider the possibility that you may be wrong." Mindful of this admonition (compounded by a 6 to 1 vote), I must nevertheless express my personal view that the jury instruction approved by the Court in this case degrades English grammar and fails to furnish the jury a clear definition of malice.
[1] The first two sentences of the trial court's jury instructions in our hypothetical situation constitute a reasonable summary of the charge given in the instant case before us, and the last sentence is an exact quote from the instant case. | March 6, 1975 |
f1490c5e-d5a3-4dac-a68b-b0d2a4d327fb | Tichansky v. Tichansky | 307 So. 2d 24 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 24 (1975)
In re Alan Ivan TICHANSKY
v.
Susan O. TICHANSKY.
Ex parte Alan Ivan Tichansky.
SC 1102.
Supreme Court of Alabama.
January 23, 1975.
B. G. Minisman, Jr., and R. Clifford Fulford, Birmingham, for petitioner.
No brief for respondent.
MADDOX, Justice.
Petition of Alan Ivan Tichansky for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Tichansky v. Tichansky, 54 Ala.App. 209, 307 So. 2d 20.
Writ denied.
HEFLIN, C.J., and COLEMAN, HARWOOD and McCALL, JJ., concur. | January 23, 1975 |
a0f6e602-c771-43be-9722-add56ba9e9b6 | Cole v. Cole Tomato Sales, Inc. | 310 So. 2d 210 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 210 (1975)
In re Docia Earline COLE, as Administratrix of the Estate of C. F. Cole, Jr.
v.
COLE TOMATO SALES, INC., et al. Ex parte COLE TOMATO SALES, INC., et al.
SC 1023.
Supreme Court of Alabama.
March 13, 1975.
As Modified on Denial of Rehearing March 27, 1975.
Rehearing Denied April 10, 1975.
Fred Blanton, Birmingham, for petitioners.
Izas Bahakel, Birmingham, for respondent, Circuit Judge William C. Barber.
PER CURIAM.
This is an original petition for mandamus which seeks to have this Court order Circuit Judge William Barber to modify or rescind his order compelling the petitioners to produce certain documents. This Court granted a rule nisi. The trial judge has answered, and oral arguments have been heard. We now deny the petition for a peremptory writ of mandamus.
Briefly stated, the facts are as follows: Docia Earline Cole, as administratrix of *211 the estate of her late husband, C. F. Cole, Jr., filed an action on 5 August 1974, in the Circuit Court of Jefferson County, in which she alleged that her late husband died on 22 June 1973, and that at the time of his death, he was an officer, director and stockholder (29% of the capital stock) of a corporation known as Cole Tomato Sales, Inc. She alleged, upon information and belief, that C. F. Cole, Sr. Produce, Inc. was merged with Cole Tomato Sales, Inc., and were being operated as one corporate entity. She also claimed her late husband was entitled to $5,000 as compensation at the time of his death and that this sum had not been paid. She also alleged as follows:
The administratrix asked the court to determine the profits of the corporation, that an accounting be made to determine what her late husband was entitled to receive as profits or dividends. She also asked that a receiver be appointed to run the business until it could be dissolved and the assets distributed as provided by law.
Motions to dismiss the complaint were filed by C. F. Cole, Sr. Produce Company, Inc. and Cole Tomato Sales, Inc. and James Cole. The court denied each motion to dismiss.
On 17 October 1974, the administratrix had filed a motion to require the production of documents under Rule 34, ARCP. The items requested were as follows:
Defendants' counsel advised them not to respond to the motion to produce, and the trial court, on 1 November, 1974, entered an order compelling production of the documents within one week. Defendants filed this original petition for mandamus on 5 November 1974, and claims that the order permits discovery outside the scope of Rule *212 26(b), ARCP, that it permits an invasion of the privacy of James Cole and his wife, and that James Cole's wife is not a party to the action. Both James Cole and his wife allege that to permit the discovery will cause them immediate and irreparable injury. This Court issued a rule nisi.
Judge William Barber answered the rule nisi and says that there was no request made by the petitioners for a protective order under Rule 26(c), ARCP, to limit or prohibit discovery, and defendants should not be permitted to raise for the first time, by petition for writ of mandamus, matters which might have been, but were not raised in the Circuit Court. Regarding the complaint that Mrs. James Cole was not a party to the action, Judge Barber said:
The whole concept of our new procedural rules is that they will secure "the just, speedy and inexpensive determination of every action." Rule 1, ARCP.
Petitioner's counsel, during oral argument, stated that the administratrix had not built a pier (stated a cause of action) in order to begin fishing (discovery). The mandate of Rule 1 that we construe all the rules to "secure the just, speedy and inexpensive determination of every action" is probably the most important mandate in the rules.
As was said in Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222, 225-6 (1962):
The discovery rules must be broadly and liberally construed. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).
Rule 26(c) provides the efficient procedural device for limiting or prohibiting discovery. The petitioners did not avail themselves of it. Consequently, we deny their request for the extraordinary relief of mandamus.
Peremptory writ of mandamus denied.
HEFLIN, C. J., and MERRILL, MADDOX, JONES and SHORES, JJ., concur.
PER CURIAM.
Petitioners for the first time on application for rehearing raise the point that the original request filed by the plaintiff for production asked the defendant "to respond within 14 days."
In brief, on application for rehearing, petitioners claim:
Stated succinctly, petitioners for the first time argue that Rule 34(b) allows a party upon whom a request is served 30 days within which to serve a response, and that the motion to produce which the plaintiff filed in this case requested the defendant to respond within 14 days. We cannot sanction the practice of bringing up new questions for the first time in applications for rehearing. Kirkland v. Kirkland, 281 Ala. 42, 198 So. 2d 771 (1967).
We set forth some of the basic facts to show that the Court is of the opinion that this point was not previously raised. Plaintiff filed a request for the production of documents under Rule 34 on October 1, 1974. Plaintiff requested the defendant "to respond within 14 days." We do not know when counsel for the petitioners informed the plaintiff that her request would not be honored, but we quote from the original petition for mandamus and from the original brief of counsel for the petitioners to show that the request would not be honored.
Paragraph 5 of the original petition for mandamus reads:
In a brief filed on original submission, counsel stated:
We understood that petitioners' original argument before submission was that the complaint in this cause failed to state a cause of action; therefore, no discovery was appropriate. Petitioners never claimed in their petition, in brief, or on oral argument that they had 30 days within which to make a written response. Insofar as we are advised, no objection was made in the trial court or in this Court previously that the request for production shortened the time within which the defendant could respond. The record shows that even if we assume that the point was raised generally by petitioners' original petition in this Court, no written response was filed within the 30 day period. Therefore, the question is moot.
Since the original request for production by plaintiff was made pursuant to Rule 34, we will extend our original opinion to discuss the underlying policy of the rule, and to show further that petitioners should have served a written response to the original request.
*214 Rule 34 is designed to operate insofar as possible without court intervention. In providing that documents shall be sought by request rather than by motion and that a written response must be served setting forth the reasons for any objections, the rule contemplates that in most instances details of production can be worked out among the lawyers without recourse to the court. Moore's Federal Practice, Vol. 4A, § 34.05[3]. As stated in Wright and Miller, Federal Practice and Procedure, Vol. 8, § 2213, p. 639:
The record shows that the petitioners neither served a written response to the request within 30 days nor applied for a protective order.
On March 19, 1975, petitioners' counsel filed a motion to strike the order and judgment entered on March 13, 1975, because a majority of the Court had not taken part in the decision. The official endorsement on the transcript of the record shows, and the Court judicially knows that a majority of this Court, in conference assembled, did take part in the decision. The motion to strike is overruled and denied.
The original opinion is modified, corrected, and extended and the application for rehearing is overruled and denied.
Original opinion modified, corrected and extended. Application for rehearing overruled and denied.
HEFLIN, C. J., and MERRILL, MADDOX, JONES and SHORES, JJ., concur. | March 27, 1975 |
8c0d3770-e114-4aec-be59-c147c4e94085 | Watkins v. Brannon | 309 So. 2d 468 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 468 (1975)
In re Herbert L. WATKINS
v.
Marsha Joan BRANNON, etc. Ex parte Herbert L. Watkins.
SC 988.
Supreme Court of Alabama.
March 6, 1975.
Hardwick, Hause & Segrest, Dothan, for petitioner.
No appearance for respondents.
HEFLIN, Chief Justice.
Petition of Herbert L. Watkins for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Watkins v. Brannon, etc., 54 Ala.App. 424, 309 So. 2d 464.
Writ denied.
BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur. | March 6, 1975 |
09499595-773a-4076-b9f6-1f2775b0c2f6 | Trabits v. Snow | 316 So. 2d 336 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 336 (1975)
Dorothy DaPonte TRABITS and Arthur Trabits
v.
L. Lamar SNOW.
SC 811.
Supreme Court of Alabama.
July 17, 1975.
Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellants.
Ray G. Riley, Jr., Mobile, for appellee.
HEFLIN, Chief Justice.
The plaintiff, Dr. L. Lamar Snow, brought an action for specific performance of a contract to sell land. The Mobile Circuit Court ordered specific performance and the defendants, Mrs. Dorothy DaPonte Trabits and her husband Mr. Arthur Trabits, appeal. The judgment is reversed.
In May 1973 the plaintiff learned that Mrs. Trabits might be willing to sell some of her property on the Dog River. He discussed with her this possibility, and after several days they arrived at an agreement to buy and sell a portion of her land.
At the time of the agreement, neither party knew exactly how wide Mrs. Trabits' property was, but they negotiated upon her estimate that it was five hundred and fifty (550) feet wide. One portion of this present appeal involves a dispute over how much land Dr. Snow was to receive. A later survey showed the tract to be 576.53 feet wide. Dr. Snow contends that the wording of the agreement shows he was to receive all but 150 feet, so that he would be entitled to 426.53 feet. Mrs. Trabits, on the other hand, says the agreement was that Dr. Snow was to receive at the most 400 feet, and that much only if it left her at least 150 feet.
Dr. Snow brought suit on the written agreement and the trial court granted his demand for specific performance. Because *337 the contract does not meet the requirements of Title 34, Section 73, Alabama Code of 1940, as amended (Recompiled 1958), Dr. Snow is not entitled to specific performance.
It is undisputed that Mrs. Trabits owns the land entirely in her own right and that her husband holds no interest in the land.
Title 34, Section 73, Alabama Code of 1940, as amended (Recompiled 1958), provides:
It is not disputed that as of the time of trial the husband was of sound mind, had not abandoned Mrs. Trabits, was a resident of this state, and was not imprisoned.
This court has long held that while this statute specifically requires the husband's consent for the wife to "alienate or mortgage her lands," this requirement must also be met in order for the wife to make a binding contract to sell her land. In Thompson v. Odom, 279 Ala. 211, 184 So. 2d 120 (1966), this court stated:
See also, Stickney v. Haas, 253 Ala. 238, 44 So. 2d 4 (1950); Owens v. Lackey, 247 Ala. 537, 25 So. 2d 423 (1946); Cooper v. Pearce, 222 Ala. 540, 133 So. 538 (1931); and Obermark v. Clark, 216 Ala. 564, 114 So. 135 (1927).
It was therefore necessary, in order for this contract to be specifically enforced, that Arthur Trabits sign the contract to show his assent and concurrence. To support the trial court's decree of specific performance, then, that court must have found that Arthur Trabits signed to show his assent and concurrence.
This court is aware of the principle that where the trial court has made no specific findings of fact this court "will assume that the trial court made those findings which will justify the decree rendered." Sims v. Reinert, 285 Ala. 658, 235 So. 2d 802 (1970); Dockery v. Hamner, 281 Ala. 343, 202 So. 2d 550 (1967). However, this court must apply another principle which is equally applicable: "Where testimony is taken ore tenus, the findings of facts made and entered by the trial court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust." (Emphasis added.) Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So. 2d 847 (1973). See also Renfroe v. Weaver, 285 Ala. 1, 228 So. 2d 764 (1969); Dunn v. Fletcher, 266 Ala. 273, 96 So. 2d 257 (1957).
*338 The evidence reveals that Arthur Trabits claimed no interest in his wife's land, that his wife had instructed him to stay out of her business, and that, while he was present during some of the negotiations, he did not participate in them other than at one point to help the plaintiff measure a portion of the land. The contract form that was used contained two lines for buyers' signatures on the right side of the one page form near the bottom, and one line on the opposite side (left side) of the form under the word "WITNESS:". On the witness line was signed the name "Mrs. Ann K. Nicholas." It was not contended that Mrs. Nicholas was a party to the sale, and the evidence showed that she signed only to witness Dr. Snow's signature. The form also contained two lines for sellers' signatures on the right side of the form near the bottom. On the first line was signed "Dorothy DaPonte Trabits." The name "Arthur Trabits" was not signed on the second line under Mrs. Trabits, but on the opposite side (left side) of the form on another line under the word "WITNESS:". There is nothing on the form itself to indicate that Arthur Trabits signed for any purpose other than to witness his wife's signature.
Arthur Trabits testified he signed as a witness. A review of the trial transcript shows no evidence on which to base a finding that Arthur Trabits intended to sign as anything other than a witness.
While arguing that the trial court made a finding of fact that Arthur Trabits signed to show his assent and concurrence, the plaintiff apparently does so on the assumption that a signature given as a witness amounts to a signature given to show assent and concurrence. The plaintiff contends that one of the issues presented to the trial court was the following:
The plaintiff, therefore, acknowledges that Arthur Trabits signed as a witness, but he cites four cases from this court for the proposition that a husband's signature as a witness to his wife's signature is sufficient to meet the requirements of Title 34, Section 73, Alabama Code of 1940, as amended (Recompiled 1958).
Plaintiff first cites the case of Rushton v. Davis, 127 Ala. 279, 28 So. 476 (1900). In that case this court stated:
The term "the mere signing by Peterson" as used in Rushton v. Davis was not intended to include the signing of his name anywhere on the deed for any purpose. It had clear reference to the preceding paragraph of the opinion, which cited the case of Murphy v. Green, 120 Ala. 112, 22 So. 112 (1897), where the husband had signed his name to a deed below this statement: "This is to certify that the above grantor is my wife and that she has my unqualified permission to make above grant and sale of the above named lands. This 15th day of July, 1892." The term "the mere signing by Peterson" was used only to indicate *339 that the signing was sufficient even if done without the statement that was present in the Murphy case. Thus, Rushton v. Davis did not involve a husband who signed only as a witness, but a husband who had signed "as one of the grantors in the conveyance."
Plaintiff next cites Wood v. Lett, 195 Ala. 601, 71 So. 177 (1916), wherein this court considered an alleged contract made between two married women for the sale and purchase of realty. The husbands signed at the bottom, but their names did not appear in the body of the instrument. This court stated that "the only purpose of their signatures [was] to witness their assent to and concurrence in the agreement on the part of their respective wives, for which purpose their mere signatures would have been sufficient, had the wife been otherwise bound. Rushton v. Davis * * *." (Emphasis added.) Again, since the "only purpose" of the husband's signing was "to witness their assent and concurrence," the case does not stand for the proposition that a husband's signature given for the purpose of witnessing his wife's signature is sufficient to meet the statutory requirement.
The plaintiff then cites Irwin v. Shoemaker, 205 Ala. 13, 88 So. 129 (1920). The effect of a husband's signature given only as a witness to his wife's signature was not at all an issue presented in that case.
The appellee also cites Bowden v. Turner, 243 Ala. 182, 8 So. 2d 849 (1942). But neither did that case involve a husband who signed only as a witness. Rather, it appears that the instrument in question in that case, a deed, was signed by the wife, whose signature (mark) was witnessed by two witnesses; it was also signed by her husband, whose signature (mark) was given to show his "assent and concurrence * * * in writing." The husband's signature was in turn witnessed, but by only one witness. This court held that while it was invalid as a conveyance, the deed was valid as a contract to convey.
It is clear that in none of these cases cited by the plaintiff did the husband sign merely as a witness to his wife's signature. In each case either the husband signed as a party to the transaction or there was other evidence showing that he signed to show his assent and concurrence.
Neither party has questioned the applicability of Title 34, Section 73, to this situation; rather, all parties concede its applicability. This court has said that this statute is a recognition of the husband's "duty to shield the wife against oppressive dispositions of her property." Smith v. Smith, 245 Ala. 420, 17 So. 2d 400 (1944).
No one has challenged the constitutionality of this statute, so this court does not reach that question. City of Mobile v. Gulf Development Company, 277 Ala. 431, 171 So. 2d 247 (1965); Alabama Warehousing Company v. State, 227 Ala. 258, 149 So. 843 (1933); Faircloth-Segrest Mercantile Company v. Roach, 211 Ala. 498, 100 So. 908 (1924).
Because the statutory requirement has not been met, specific performance should not have been decreed. The judgment must be reversed.
Reversed and remanded.
MERRILL, MADDOX, JONES and SHORES, JJ., concur.
JONES, Justice (concurring specially):
I agree completely with the opinion, but I would add this: Assuming a validly executed contract by the Trabits, the maximum frontage that Dr. Snow is entitled to under the contract is 400 feet. The 150 feet reference is at most a mutual mistake. The 400 feet reference is definite and certain and constitutes all the property contracted to be sold. | July 17, 1975 |
5961532b-e881-43e5-90fd-814d8660df91 | State v. Wise Development Corporation | 309 So. 2d 448 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 448 (1975)
STATE of Alabama
v.
WISE DEVELOPMENT CORPORATION.
SC 676.
Supreme Court of Alabama.
February 27, 1975.
*449 Jack W. Smith, Special Asst. Atty. Gen., Dothan, for appellant.
W. G. Hardwick and William G. Hause, Dothan, for appellee.
HEFLIN, Chief Justice.
The State of Alabama brought an action to condemn certain private lands in the City of Dothan for use as highway right of way. The Circuit Court of Houston County awarded the landowner, Wise Development Company, judgment in the amount of $53,000.00, based upon a jury verdict in that amount. The State appeals. The judgment is affirmed.
The appellee, Wise Development Company, was the owner of three parcels of land on U. S. Highway 84 East, within the Dothan city limits and one-half to three-fourths of a mile east of the Ross Clark Traffic Circle, which rings the city. In this action the State actually took only a portion of each of the three parcels.
Each parcel fronted on U. S. Highway 84 East, and the three parcels had a total frontage of 3470 feet. Parcel 1 was on the south side of Highway 84 and adjoined the western side of Beverlye Road. This parcel had a highway frontage of 465 feet, and consisted of 3.37 acres, of which the State condemned 1.32 acres. Parcel 3 lay on the south side of Highway 84 and adjoined the east side of Beverlye Road. This parcel had a highway frontage of 1140 feet and consisted of 11.56 acres, of which the State condemned 1.79 acres. Parcel 2 lay on the north side of Highway 84 opposite parcels 1 and 3, and consisted of 15.37 acres, of which the State condemned 3.89 acres. Parcel 3 had a highway frontage of 1865 feet.
Thus, the State actually took 7.00 acres, consisting of three parcels measuring 1.32 acres, 3.89 acres, and 1.79 acres. This left the landowner with 23.30 acres. Each of the three parcels was zoned partially for business and partially for residences, but each portion taken was completely within the business zone. The effect was to take all the highway frontage from each parcel, totalling 3470 feet. While the land remaining will still have highway access, it will be subject to a municipal ordinance requiring a 35-foot front set-back and a 20-foot rear set-back for any building. Another ordinance limits any building to twenty-five per cent of the area of the lot on which it is constructed. There was testimony from expert witnesses that because of these requirements and the configurations of the remaining parcels, the potential uses of these remaining lots were greatly limited.
The State presented evidence of the sales of what it contended were four comparable tracts: 1) 39.63 acres on July 8, 1968, for $1388.00 per acre; 2) 40 acres on March 3, 1971, for $1000.00 per acre; 3) 13.589 acres on August 6, 1968, for $2575.00 per acre; and 4) 70 acres on August 11, 1969, for $1000.00 per acre. The State's witness testified that in his opinion (based on these four sales) the value of the property taken, including damages to the remaining land, was $19,000.00. The landowner's expert witnesses testified that for several reasons these four tracts were not comparable to the land taken.
The landowner presented three expert witnesses who testified to a number of sales of what they considered comparable lands in the Dothan area. Based on these supposedly comparable sales, they gave estimates of the landowner's damages (value of the land taken plus damages to the remaining land) which ranged from $112,550.00 to $121,100.00.
*450 The parties agreed that the actual taking occurred on March 16, 1971, and that the only question for the jury was the amount of the landowner's damages. The jury returned a verdict of $53,000.00, and the circuit court entered judgment for that amount. The trial judge denied a motion for a new trial.
The State has appealed, and its assignments of error can all be distilled down to the contentions that 1) the trial judge erred in admitting into evidence the sales used by the appellee's three expert witnesses, because those lands were not in fact comparable to the lands taken in this proceeding, and 2) the verdict was excessive.
It is well established that in a land condemnation proceeding evidence of the sale price of another piece of land is admissible in determining the value of the condemned land, if the sale was voluntary and "if the conditions surrounding the two tracts of land are similar and if the sale was neither too remote in point of time nor of such a character as to indicate that it did not represent the true value of the property." Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 17, 110 So. 2d 308, 315 (1959); Knabe v. State, 285 Ala. 321, 231 So. 2d 887 (1970); Sayers v. City of Mobile, 276 Ala. 589, 165 So. 2d 371 (1964).
There is no general rule regarding the similarity that must exist between two pieces of land before the sale price of one can be offered as evidence of the other's value. See 27 Am.Jur.2d Eminent Domain § 429. In this state the rule is that the question of similarity is left primarily to the discretion of the trial judge. State v. Busby, 293 Ala. 510, 306 So. 2d 260 (1975); Popwell v. Shelby County, 272 Ala. 287, 130 So. 2d 170 (1960); Southern Electric Generating Co. v. Leibacher, supra.
The State contends that the "comparable" sales testified to by the landowner's witnesses "were too remote in time * * * from the subject property." The State is in a poor position to argue that the sales testified to by the appellee's witnesses were too remote in time from the date of condemnation (March 16, 1971) to be comparable. None of those sales were as remote in time as the two 1968 sales offered by the State itself.
This question of remoteness in time has been considered by two Alabama writers in their discussions of condemnation proceedings; see M. Bishop, "Handling Condemnation Cases," 22 Ala. Lawyer 385 (1961) and B. Nettles, "Legal Aspects of the Market Approach to Value in Condemnation Cases," 30 Ala. Lawyer 301 (1969). Both Bishop and Nettles discuss the case of Davis v. Reid, 264 Ala. 560, 88 So. 2d 857 (1956), in which one issue was the determination of the 1934 value of a homestead. In that case this court held it properly within the trial court's discretion to admit as evidence the 1941 sales price of adjoining land. In Davis this court said, 264 Ala. at 566, 88 So.2d at 862:
While Davis involved the value of a homestead, there is no reason that this rule as to remoteness of time should not apply as well in determining the value of condemned property. In fact, Thornton v. City of Birmingham, from which the Davis rule was taken, was itself a land condemnation case; there the purchase price paid by the landowner for the condemned property two years prior to condemnation was held properly admitted.
This court in Davis held that the trial judge had not abused his discretion in admitting evidence of a sale of adjoining land which occurred seven years later. This court is not suggesting that a seven-year periodor any other time periodcan *451 be established as always acceptable or as always unacceptable. Remoteness in time is only a factor for the trial court to consider, along with all other factors, in determining what sales are comparable and therefore admissible as evidence bearing on the value of condemned land. Naturally, what is "too remote" will vary from case to case, but this determination is a matter addressed to the sound discretion of the trial judge. In the present case, this court cannot say that any of these sales, all occurring within twenty-two months of the condemnation, were so remote in time as to show an abuse of the trial court's discretion.
The State forcefully argues that the trial court erred in admitting testimony concerning twelve sales in the Dothan area alleged to be of land comparable to that taken. The State contends that the lands were not comparable, because at least most of these twelve sales were of small pieces of land being sold for special purposes. The acreages of these twelve tracts were.22, 1.43, .82, 1.22, 9.9, 1.36, .57, 2.125, 1.14,.92, 43.033, and .22. The State points out that of these tracts a .22-acre tract adjacent to a hospital was sold for a drugstore; the 1.43-acre tract for a bank; the .82-acre tract for a bank; the 1.36-acre tract for a Shoney's Restaurant; the .57-acre tract for a Long John Silver's Restaurant; and the 2.125-acre tract for a McDonald's Restaurant. The State does not contend that the three parcels condemned from Wise Development Corporation in the case under review would not also have been suitable for such "special service" businesses.
The State also contends that some of the sales testified to by the appellee's witnesses were "too far away in distance" to be comparable sales. Most of these tracts were on either the Ross Clark Traffic Circle or a major highway leading into Dothan. The property being condemned was only one-half to three-fourths of a mile east of the traffic circle and was on the second most heavily traveled highway into Dothan. While some of the sales complained of were of land south or west of the traffic circle, all the sales apparently were within the city limits and near the circle.
This court cannot say that the tracts offered by the landowner as comparable were so dissimilar that the trial court abused its discretion in admitting the testimony. The State makes the very same argument here in regard to what it calls "special service" sales that it made in the recent case of State v. Busby, supra. There the State argued that small acreages could not be "comparable" since the landowner prior to the taking held a 34-acre tract. In Busby, Justice Bloodworth, speaking for this court, wrote:
In the present case this court cannot say that the trial judge abused his discretion in determining that the sales offered in evidence by the appellee were sufficiently comparable in size to the three tracts actually taken. Likewise, the fact that some of the lands were in other areas of Dothan does not show an abuse of the trial court's discretion. There was testimony as to topography, locations, and traffic patterns from which the court could have found similarity.
The State further contends that the jury verdict of $53,000.00 was excessive. Testimony offered by the expert witnesses as to the damage suffered by the property owner from the taking of the three parcels varied from a low estimate of $19,000.00 to a high estimate of $121,100.00. The rule that the trial court's action *452 in overruling a motion for a new trial is due to be affirmed unless the verdict is unsupported by competent evidence or is against the preponderance of the evidence, or is palpably wrong and manifestly unjust, has been applied in the context of condemnation cases where the verdict is well within the outer range of before and after evaluations of expert witnesses. See Dothan-Houston County Airport Authority, Inc. v. Horne, 292 Ala. 273, 292 So. 2d 656 (1974), and State v. Central of Georgia Ry. Co., 293 Ala. 675, 309 So. 2d 452 (1975).
There being no error, the case is due to be
Affirmed.
MERRILL, MADDOX, JONES and SHORES, JJ., concur. | February 27, 1975 |
51ba9411-6855-4bdb-9f3a-d878454c3a2f | Botsford v. State | 309 So. 2d 844 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 844 (1975)
In re Bruce BOTSFORD, alias
v.
STATE.
Ex parte Bruce Botsford, alias.
SC 1133.
Supreme Court of Alabama.
March 13, 1975.
John T. Crowder, Jr., Mobile, for petitioner.
MERRILL, Justice.
Petition of Bruce Botsford, alias for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Botsford v. State, 54 Ala.App. 482, 309 So. 2d 835.
Writ denied.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | March 13, 1975 |
a0e808f6-720b-4411-8911-f48de5b35396 | Agricola v. HARBERT CONSTRUCTION CORPORATION | 310 So. 2d 472 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 472 (1975)
John Disque AGRICOLA et al.
v.
HARBERT CONSTRUCTION CORPORATION, a corp., and Ray D. Bass, Individually and as Director of the Highway Department, State of Alabama.
SC 1013.
Supreme Court of Alabama.
March 27, 1975.
W. S. Pritchard, Jr., Birmingham, for appellants.
Lucian L. Smith, Jr., Montgomery, for appellee Ray D. Bass.
James O. Spencer, Jr., and Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for Harbert Constr. Corp.
*473 SHORES, Justice.
The facts out of which this proceeding arose are as follows:
On February 8, 1961, a deed was executed by Woodlane Forest Corporation, grantor, Hugh W. Agricola, Jr., president, conveying certain property involved herein to Hugh W. Agricola, Jr., "... as legal Guardian for John Disque Agricola, Elsie Claire Agricola, and Susan Camille Agricola, under agreement dated February 8, 1961, ..." grantee.
This deed was filed for record in the Probate Court of Etowah County on February 9, 1961.
The instrument dated February 8, 1961, in pertinent part, provided:
This instrument was recorded July 9, 1968.
In November, 1967, the State instituted proceedings in the Probate Court of Etowah County to condemn a right-of-way over the property described in the aforementioned deed [as well as other properties belonging to other individuals and entities not here involved]. The record shows that, in the condemnation proceeding, Hugh W. Agricola, Jr. and Elsie N. Agricola were listed as owners, and that service of process was served on those individuals on June 13, 1968.
The court entered its order of condemnation on October 1, 1968, holding "That all of the right, title, interest and claim of Hugh W. Agricola, Jr., Elsie N. Agricola [and others not here involved] Is divested out of said parties and a right of way in and to same Is Invested In the State of Alabama ..."
The present proceeding was begun by the three beneficiaries under the trust referred to above, and by Hugh W. Agricola, Jr., as guardian and trustee therein, against Ray D. Bass, individually and as Director of the Highway Department of the State of Alabama. Harbert Construction Corporation was originally joined as a defendant, but the complaint was dismissed as to it, without objection.
The plaintiffs sought, inter alia, damages for the "unlawful use" and "unlawful taking of their property" in the condemnation proceeding, alleging that the condemnation proceeding failed to join either of them as owners of any interest in the property condemned.
Defendant, Ray Bass, individually and as Director of the Highway Department, State of Alabama, filed a motion for summary judgment, under A.R.C.P. 56, on the ground that there was no genuine issue of any material fact, and that the defendant was entitled to a judgment as a matter of law. The motion for summary judgment was based upon a certified copy of Notice of Process (in the condemnation proceedings) showing service upon Hugh W. Agricola, Jr.
Appellants countered with an affidavit in opposition to the motion for summary judgment, asserting that nowhere in the records of the condemnation proceedings does it appear that the plaintiffs were named as owners of the land condemned; *474 that no service was perfected upon them; that the only evidence of service of process was upon Hugh W. Agricola, Jr. and Elsie N. Agricola; and that none of the plaintiffs had actual notice of the condemnation proceedings and did not appear or participate therein.
The trial court granted the motion for summary judgment, finding:
This appeal is from that judgment.
The sole question presented is whether Title 19, §§ 3 and 4, Code 1940, have been complied with, so that the order of condemnation is binding upon the appellants here. Title 19, § 3, provides:
Title 19, § 4, deals with notice and requires the following:
The State Highway Department argues that Birmingham & A. R. Co. v. Louisville & N. R. Co., 152 Ala. 422, 44 So. 679 (1907), is dispositive of the issue involved here. That case held that, where the party holding legal title was given as the owner in the application for condemnation and was served with notice, that was sufficient to comply with the statute, notwithstanding that the condemning authority had notice of the equitable interest held by the beneficial owner, which was not made a party. However, that case was decided in 1907 and construed a predecessor to the present statute. Unlike the present provisions of Title 19, § 3, the Act then in force provided:
The present statute adds the additional phrase [after "owners of each tract"] "and any other parties claiming or holding any right, title, or interest therein."
We think the language in the present statute clearly requires that owners of an equitable interest must be named as parties in condemnation proceedings, where they are known.
In fact, the opinion in Birmingham & A. R. Co. v. Louisville & N. R. Co., supra, indicates that this might have been required under the old statute, if the condemning authority had notice of the equitable estate. The case held that "in trust estates the trustee is the only proper party," but noted in that case that there was nothing in the deeds and records to inform the condemning authority of the equitable estate of the complainant. It was in that factual context that the court held that "... *475 while there may be conflict in the authorities on the question as to who is the necessary party under statutes employing the word `owner,' it seems that there is no conflict upon the proposition that in trust estates the trustee is the only proper party." (152 Ala. at 431, 44 So. at 681)
The facts in the present case are remarkably different. It is undisputed that the deed conveying this property to "Hugh W. Agricola, Jr., as legal Guardian for John Disque Agricola, Elsie Claire Agricola, and Susan Camille Agricola, under agreement dated February 8, 1961," and the agreement referred to in that deed, had been filed for record long before the condemnation proceedings were instituted. Under that deed, equitable title to the property was vested in the cestuis que trustent. They held an "interest" in this property; and, of course, the State is charged with notice of that fact. They should, therefore, have been made parties to the condemnation proceedings, and should have been served with notice in the manner prescribed by Title 19, § 4.
The application for condemnation listed Hugh W. Agricola, Jr., and Elsie N. Agricola as owners of the property. This did not meet the facts, nor the requirement of the statute.
Service of process upon Hugh W. Agricola, Jr., without any reference to the existence of the trust estate, was inadequate to bind the cestuis que trustent. They were entitled to noice under Title 19, § 4, as owners of an interest in the property.
It goes without saying that statutes conferring the power of eminent domain must be strictly construed in favor of the owner of the property sought to be condemned, Ensign Yellow Pine Co. v. Hohenberg, 200 Ala. 149, 75 So. 897 (1917); and, in condemnation proceedings, "... the petitioner omits any interested party at his peril, and pursues the proper course in making a party thereto any one shown by the record to have any interest in the land, or of whom he has notice of a claim of interest therein...." Alabama Power Co. v. Herzfeld, 216 Ala. 671, 673, 114 So. 49, 51 (1927).
As recently as 1973, this court, speaking through Justice Maddox, said:
It follows that the trial court erred in granting the motion for summary judgment, grounded solely upon proof of service on Hugh W. Agricola, Jr.
The judgment is, therefore, due to be reversed and remanded.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur. | March 27, 1975 |
ee716c14-53a6-435a-a88c-9b160cdbce28 | Watwood v. DAWSON BRIDGE CO., INC. | 307 So. 2d 692 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 692 (1975)
John WATWOOD
v.
R. R. DAWSON BRIDGE CO., INC., a corp., et al.
SC 911.
Supreme Court of Alabama.
February 6, 1975.
Knight, Knight & Griffith and Hogan, Smith & Alspaugh and John F. Kizer, Jr., Birmingham, for appellant.
Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee, R. R. Dawson Bridge Company, Inc.
London, Yancey, Clark & Allen, Biringham, for appellee, Bellamy Brothers, Inc.
*693 FAULKNER, Justice.
This is an appeal from a summary judgment in a negligence action. The plaintiff-appellant, John Watwood, was employed by Bellamy Brothers, Inc. as a construction worker. In August, 1971, Bellamy was under subcontract to the R. R. Dawson Bridge Company for work on a portion of Interstate 65. While on this job, Watwood had occasion to use a power saw provided him by his employer, Bellamy Brothers. The saw was devoid of any retractable safety guard, and Watwood's right leg was severely cut when the saw "kicked back" on him. Watwood filed a suit in the Circuit Court for the Tenth Judicial Circuit in Jefferson County on July 20, 1972. A pertinent part of the complaint reads as follows:
In the initial complaint, only Dawson was specifically named as a defendant. Later an amendment substituted Bellamy Brothers for the defendant designated "B" in the complaint. Bellamy moved to have itself struck from the suit, and the trial court granted the motion. However, Dawson later filed a third party complaint naming Bellamy as a third party defendant. On October 24, 1973, Dawson filed a motion for summary judgment based upon the pleadings, affidavits, the contracts involved, and the Safety and Health Regulations for Construction, 29 C.F.R. 1926 et seq. (Supp.1973). These regulations were adopted pursuant to the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (1970) (hereinafter "OSHA"). Summary judgment was granted for the defendant and this appeal followed.
There are two assignments of error, but we will not take time to consider Assignment Two. The appellant offers no argument but simply refers us to Rules 9(h) and 15(c) of the Alabama Rules of Civil Procedure. Rule 9(d), Revised Rules of the Supreme Court of Alabama states that "(a)ssignments of error not substantially argued in brief will be deemed waived and will not be considered by the court."
Assignment 1 states that the trial court erred in granting the motion for a summary judgment, thus the propriety of that action is the only issue on this appeal. This court agrees that the trial court was in error in granting the summary judgment.
Dawson Bridge Company contends that the complaint filed in this action is based wholly upon a violation of a regulation arising from OSHA. Dawson further contends that such violations can not be remedied by private civil actions brought by employees. A number of federal decisions are cited in support of this position; however, this court pretermits this issue since the decision of this court does not have to be premised upon such a consideration.
This court does not read the complaint as stating a cause of action exclusively on a violation of OSHA or regulations promulgated pursuant to OSHA. The complaint in this case uses the words "negligently causing," "negligently permitting," and "negligently allowing" the plaintiff to use said unsafe power saw. The complaint can be interpreted as an ordinary negligence complaint. We judge the substance of the complaint by the requisites of Rule 8(a) and (f) A.R.C.P. In connection with a motion to dismiss, this court in Bowling v. Pow, Ala., 301 So. 2d 55 (1974), adopted the rule of Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), which held that in reviewing the sufficiency of a complaint, it should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts *694 in support of his claim which would entitle him to relief.
While there can be no doubt the power saw was provided by Watwood's employer, Bellamy Brothers, nevertheless, when all of the pleadings, affidavits and exhibits are viewed together we must conclude that the moving party (R. R. Dawson Bridge Company) has not met the burden of proof of negating a genuine issue as to material facts or that it is entitled to judgment as a matter of law. On the summary judgment proceedings Dawson attempted to limit Watwood's claim to OSHA. Since we have concluded that the issues framed by the complaint are much broader, the basic question of negligence on the part of the defendant still remains unanswered and proper for jury determination. The moving papers do not establish that as a matter of law Watwood could not recover for breaches of duties imposed upon a general contractor. Whether the plaintiff can or will ultimately prove a duty on the part of the general contractor in this case and a breach thereof is another question.
Reversed and remanded.
MERRILL, BLOODWORTH, ALMON, SHORES, and EMBRY, JJ., concur.
MADDOX, J., concurs specially, in which HEFLIN, C.J., and JONES, J., join.
MADDOX, Justice (concurring specially).
I concur that the court should not have granted the motion for summary judgment based upon the record in this case. This is a negligence action and as this court pointed out in Folmar v. Montgomery Fair, S.C. 737 [MS], decided Jan. 9, 1975,[*] a summary judgment in a negligence action is rarely appropriate.
The burden is on the movant to establish that there is no genuine issue of a material fact left in the case. I believe the movant failed to meet that burden here.
The mere allegation in plaintiff's pleading that the defendant was negligent will not be enough to create a genuine issue of fact if the defendant can show, by competent evidence, that there is a not a scintilla of evidence upon which a jury could find the defendant guilty of negligence.
The party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, then he is not entitled to judgment. No defense to an insufficient showing is required. See Moore's Federal Practice, Vol. 6, p. 2825.
The Committee Comments to Rule 56 provides a procedure which may or may not be appropriate in this case. The comments are:
HEFLIN, C.J., and JONES, J., concur.
[*] Editor's Note: The opinion of January 9, 1975, was withdrawn and a new opinion "On Rehearing" filed February 13, 1975 (see 309 So.2d 818). | February 6, 1975 |
e789cfa1-e076-4a62-bccb-a8c4a778d740 | Darden v. Ogle | 310 So. 2d 182 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 182 (1975)
N. D. DARDEN et al.
v.
Neil OGLE et al.
SC 957.
Supreme Court of Alabama.
March 6, 1975.
Rehearing Denied April 3, 1975.
*183 T. J. Carnes, Albertville, for appellants.
None for appellees.
EMBRY, Justice.[1]
This is an appeal from a decree of the Circuit Court of Marshall County. The action was for declaratory judgment. We reverse and remand with instructions. Appellants were plaintiffs below. They are partners doing business under the name of Darden Cotton Company. Appellees were defendants below. They are Martha Decker Johnson and B. T. Smith. They were landlords of the appellee tenants, also defendants below. The tenants are Neil Ogle and Ronnie Kirkland.
The decree from which this appeal is taken, in pertinent part, provides:
During the latter part of 1972 or the early part of 1973, B. V. Ogle entered into an oral agreement with Sherman Decker, agent of Martha Decker Johnson, to rent farmland on thirds and fourths.[2] B. V. Ogle thereafter orally subrented part of the property to Ronnie Kirkland. Subsequently, in March 1973, without notice to, or consent of the landlord, Kirkland entered into a written "output and requirements" contract with Darden Cotton Company. Under the terms of this contract Kirkland agreed to sell and Darden agreed to buy, "all and only," the cotton produced on the Ogle operated farms during the crop year 1973. The agreed purchase price was 30.5 ¢ per pound. It is not controverted that under normal circumstances this would have been a reasonable price for the cotton in this region when sold in the fall. However, the fall of 1973 was not normal. Because of adverse weather conditions and certain international cotton sales, the price of cotton fiber skyrocketed to its highest level since The War Between the States. Had Kirkland not engaged in forward contracting he would have received more than twice the contract price.
We may now speak of Darden as the buyer, Johnson and Smith as landlords, Kirkland and Ogle as tenants. Smith and Ogle are postured substantially as Johnson and Kirkland.
When the action came to trial before the court without a jury, Darden, the buyer, sought a declaration that, under the contracts, it was entitled to receive all the cotton produced by the tenants from farms operated by them on lands of the landlords. The landlords, by intervention, sought one-fourth of the cotton in kind as rent. They also prayed for general relief.
Following a hearing the trial court made certain findings: 1. The tenants could not bind the landlord to any sale of the landlord's share of the cotton in the absence of the landlord's consent. 2. The clause in the contracts between Darden and defendant tenants which provided "all cotton produced" *184 was to be sold to Darden was unconscionable under Code of Ala., Tit. 7A, § 2-302, but only as to the share of the crops to which the landlords were entitled. 3. The trial court found that landlords were entitled to either the value of the cotton or the cotton. The trial court ruled that a proportionate share of the cotton could not be set aside. Since the buyer had prevented enforcement of the landlords' liens, the trial court found the landlords could recover the value of the cotton from the buyer, Darden. Accordingly landlord Johnson was awarded $1,129.90, plus interest from November 25, 1973. Landlord Smith was awarded $556.22, on the same premise, plus interest from November 15, 1973.
The money judgments were declared secured by liens on the cotton which is stored in Darden's warehouse.
The first issue for decision is: what is the effect of the sale of the crops to Darden by the tenants as against the landlords' right to rent? There is no question that the contract between Darden and the tenants was valid and enforceable. Code of Ala., Tit. 7A, §§ 2-401, 2-501(1) (c). See also Mitchell-Huntley Cotton Co. v. Waldrep, 377 F. Supp. 1215 (D.C.1974). Unlike Mitchell-Huntley, we have before us the question of the right of a landlord to harvested crops in possession of the purchaser.
The relationship between farm landlords and tenant farmers has long been settled in Alabama. It is expressed in Code of Ala., Tit. 31, § 23:
The rent is secured by lien on the crops. That lien is paramount to, and has preference over, all other liens on those crops for the year in which they are grown. Code of Ala., Tit. 31, § 15. This court has said:
a fortiori, the tenant cannot pass by forward contract any greater right than he has against the landlord.
This lien, however, does not give the landlord any title to, or possessory rights in, the crop grown by the tenant. Jordan v. Henderson, 258 Ala. 419, 63 So. 2d 379; Stewart v. Young, 212 Ala. 426, 103 So. 44. This is not to say that the landlord has no interest in or control over the crop. It is not a security interest as defined by Code of Ala., Art. 9, Tit. 7A, § *185 9-104(b). Landlord liens are specifically excluded under that Code section.
We note the cotton, subject matter of this action, is separated and stored at the buyer's warehouse. The warehouse receipts evidencing this are deposited with the clerk of the circuit court. The buyer has done nothing that amounts to a destruction of the landlords' liens, nor has it done anything amounting to an obstruction of the right of enforcement by the landlords of their liens. The cotton is available. The landlords could have asserted their liens by attachment. Code of Ala., Tit. 31, § 20. Moreover, there was sufficient evidence to sustain the finding of the trial court that Darden was chargeable with knowledge of the tenancy. Cf. City National Bank of Decatur v. Nelson, 218 Ala. 90, 117 So. 681.
In this case, the landlords intervened seeking to recover the cotton in kind; they also prayed for any other appropriate relief. The court below entered money judgments against the buyer rather than grant the cotton to the landlords in kind. We think that as the issues were framed between the various parties at trial time relief by money judgment was within the power of the trial court to grant.
Though attachment is provided as a remedy to enforce a landlord's lien, it is not the exclusive remedy. The lien exists apart from the statutory remedy of attachment. Metropolitan Life Insurance Co. v. Reconstruction Finance Corp., 230 Ala. 580, 162 So. 379; Webb & Aigner v. Darrow, 227 Ala. 441, 150 So. 357. Nothing was inherently wrong in the trial court awarding money judgments where remedy by attachment was not sought. However, in fixing the amount of damages the trial court chose dates, as to the respective landlords, which were declared to be the dates when the cotton was matured, harvested and ready for market (market date). The market price of that kind and grade of cotton on those dates was the measure of damages. There is sufficient evidence in the record from which the trial judge could reasonably conclude that value of such cotton as of market date was the measure of rent (one-fourth of market value) due under the oral rental agreements.
However, upon careful review of the record, we cannot find any evidence to support the findings that these dates were proper market dates. Moreover, the parties were not given any opportunity to introduce evidence about, or be heard on, the question of what was the proper measure of damages as to market value of that kind and grade of cotton as of a proper market date.
While not necessary to this decision, we note that the trial court held the clause in the sale contract between Darden and the tenants providing that Darden would buy and the tenants would sell all the cotton grown on the respective farms, unconscionable and therefore void as affecting the one-fourth share to which the landlord was entitled. The finding was bottomed on Code of Ala., Tit. 7A, § 2-302. The following provisions of law may guide when questions of unconscionability of contracts arise in the future.
Section 2-302 provides:
"Unconscionable Contract or Clause.
In this case the application of § 2-302 to void the output and requirements clause (Buyer agrees to buy and Seller agrees to sell all) is incorrect. Such contracts or clauses therein are specifically approved in § 2-306.
"Output, Requirements And Exclusive Dealings.
The only other requirement for validation of such contracts is that they be entered in good faith as that term is defined in the Commercial Code. Code of Ala., Tit. 7A, § 1-203.
Even were this a case for the application of § 2-302, it is mandatory that a trial court provide the parties an opportunity to present evidence to aid in the determination of unconscionability vel non. Code of Ala., Tit. 7A, § 2-302(2).
This cause is reversed and remanded with instructions that a hearing be held and a determination be made in accordance with this opinion.
Reversed and remanded with instructions.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.
[1] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission. The case was submitted on briefs which have been carefully read and considered by the writer.
[2] An agreement to rent on thirds and fourths means that the landlord's rent is based on onefourth of all cotton produced and one-third of all corn produced. | March 6, 1975 |
1d3c6201-b231-4932-a4e2-f02bd996d81a | Wilkins v. Ferguson | 310 So. 2d 879 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 879 (1975)
Mildred E. WILKINS
v.
Robert I. FERGUSON.
SC 970.
Supreme Court of Alabama.
March 27, 1975.
*880 Braxton L. Kittrell, Jr., Mobile, S. J. Laurie, Chatom, for appellant.
Edward P. Turner, Jr., Chatom, for appellee.
MADDOX, Justice.
The question presented is the effect of a clause in a warranty deed which reserved to the grantor an option to repurchase. The deed, in pertinent parts, is as follows:
The parties agreed that the consideration paid by the grantee for the 30 acres was only $10.00. The deed was dated June 17, 1969. It was stipulated that no improvements had been made by the grantee.
The grantor, shortly after she gave the deed, decided she wanted to sell the land and notified the grantee that she wanted to exercise her option to re-purchase the land. Grantee refused. The grantor, on August 27, 1969, filed her complaint seeking to enforce her option. The cause remained in circuit court almost five years. The trial court, on May 2, 1974, entered a decree finding that "[t]he granting clause in said deed is absolute, and is not conditional or subject to any restrictions, and purports to convey fee simple title to the Respondent." We disagree. The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required. And it is the duty of the court under this rule of construction to reconcile the terms of the instrument, if that may reasonably be done, to avoid a repugnancy in its provisions or terms. Kettler v. Gandy, 270 Ala. 494, 119 So. 2d 913 (1960), and cases there cited. In Kettler the warranty deed contained a granting clause which was almost identical with the granting clause in the deed here. In Kettler, the one sentence in the deed which caused the controversy read as follows:
This Court said:
Applying the reasoning of Kettler to this case, we think the clear meaning of the deed, without applying the arbitrary rules of construction as were used in Wright v. Smith, 257 Ala. 665, 60 So. 2d 688 (1952), is that a fee was conveyed to Robert I. Ferguson, subject to be divested if the grantor desired to sell it or dispose of it, in which event she had an option to re-purchase. It is clear also that she excepted certain oil, gas and minerals. The case of Wright v. Smith, supra, has been cited as holding that an exception, reservation or restriction which is repugnant to a *882 granting clause is void. It is true that the attempt to create an estate other than a fee simple estate by a separate clause was declared void in Wright v. Smith. However, not every exception, reservation or restriction which follows a granting clause containing words of inheritance is void.
In Holmes v. Compton, 273 Ala. 554, 142 So. 2d 697 (1962), this Court held that a deed which conveyed a fee by the granting clause but which later reserved a mineral interest, disclosed an intention to reserve a mineral interest, although the granting clause contained words of inheritance.
This Court said:
We now come to the question here. Is the reservation of the option to re-purchase void? We think not.
An option to re-purchase contained in a deed is a condition subsequent. Rountree v. Richardson, 268 Ala. 448, 108 So. 2d 152 (1959); Dozier v. Troy Drive-In-Theatres, 265 Ala. 93, 89 So. 2d 537 (1956). Under Alabama law, an option to re-purchase may be valid and enforceable. If we determine that the intent of the parties was that the grantor intended to grant a fee simple estate subject to the reservation of the option to re-purchase, then the reservation is not void. We recognize that conditions subsequent are not favored and will be strictly construed. Seaboard Air Line Ry. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187 (1914). If an intent to create an estate on condition is clearly and unequivocally indicated, courts will carry out that intent. Cf. Lowery v. May, 213 Ala. 66, 104 So. 5 (1925).
The grantee here admits that Rountree v. Richardson holds that an option to re-purchase is a condition subsequent and may be enforced, but he says Rountree is distinguishable. He says that in Rountree the granting clause said the conveyance was "subject to the terms, limitations and conditions hereinafter set forth," and that the option to re-purchase there followed the granting clause. It is true that the inclusion of words of limitation as were used in Rountree, in the granting clause, would assist courts in arriving at the intent of the parties. Nevertheless, when a granting clause contains words of inheritance and does not contain words of limitation, does that mean that any exception, reservation or restriction which follows the granting clause in a deed is void? We think not. Kettler v. Gandy (condition subsequent), and Holmes v. Compton (reservation of a mineral interest), are excellent examples that the intention of the parties is the real inquiry. The granting clauses in both Kettler and Holmes contained words of inheritance and no words of limitation.
Since we can read the instrument and determine what the grantor reserved, resort to arbitrary rules of construction is not required.
Looking at the entire instrument, we hold that the parties intended to grant a fee simple, subject to a reservation of a specified mineral interest by the grantor and a reservation by the grantor of an option to re-purchase.
*883 The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
HEFLIN, C. J., and MERRILL and SHORES, JJ., concur.
JONES, J., concurs specially, with which SHORES, J., also concurs.
JONES, Justice (concurring specially).
I concur in the result, but I would find no necessity to search for the intention of the parties by looking to the four corners of the instrument. I see no ambiguity in the deed.
The reservation in the grantor of the option to repurchase is contained in the granting clause of the deed, often called the premises.[1] Prudential Ins. Co. of America v. Karr, 241 Ala. 525, 3 So. 2d 409 (1941); and there is, therefore, no repugnance between the granting clause and the habendum clause.
It is frequently stated that:
But I see no inconsistency in the granting clause and any other clause in the deed involved here, so that, while I do not oppose it, I would see no necessity in this case to resorting to the more modern rule, which is said to disregard the technical rules of the common law relative to the division of deeds into formal parts, such as premises and habendum, and look to the entire deed for the purpose of ascertaining the intention of the parties. Thompson on Real Property, Vol. 7, § 3136.
SHORES, J., concurs.
[1] Tiffany, Real Property, Third Ed., § 502: "A carefully drawn conveyance usually consists of the following parts: First the names of the parties ... A statement of the consideration and of its payment and receipt follows, and, after this comes the operative words of conveyance followed by a description of the land conveyed and any exceptions or reservations. These elements constitute the `premises' which is followed by the `habendum' ... which is usually introduced by the words `to have and to hold'...." [Emphasis supplied] | March 27, 1975 |
78ca882b-eedc-4581-9150-e6c041b68e05 | Browder v. State | 308 So. 2d 735 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 735 (1975)
In re Tony BROWDER
v.
STATE.
Ex parte Tony Browder.
SC 1116.
Supreme Court of Alabama.
February 20, 1975.
Timothy L. Dillard, Birmingham, for petitioner.
JONES, Justice.
Petition of Tony Browder for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Browder v. State, 54 Ala. App. 369, 308 So. 2d 729.
Writ denied.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur. | February 20, 1975 |
a026a71e-3e3a-4ffe-ab22-d2d0c001290c | Holk v. Snider | 316 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 316 So. 2d 675 (1975)
H. I. HOLK and Eula A. Holk
v.
Edna E. SNIDER.
S.C. 986.
Supreme Court of Alabama.
March 6, 1975.
Rehearing Denied May 22, 1975.
Taylor D. Wilkins, Jr., Bay Minette, for appellants.
Wilters & Brantley, Bay Minette, for appellee.
FAULKNER, Justice.
On March 11, 1972, Mr. and Mrs. Holk signed an instrument designated an offer to purchase certain real estate in Baldwin County. The instrument was apparently drafted by Mrs. Frances Mallory, a real estate agent for Mrs. Snider. She had an exclusive listing of the property for thirty days. The offer was subject to three conditions:
The Holks signed the instrument on March 11, 1972. The instrument shows on its face it was accepted by Mrs. Snider on March 15, 1972. Mrs. Snider and Mr. Henderson, one of the witnesses who attested her signature, testified at the trial that Mrs. Snider signed on March 11, 1972. Mrs. Snider relented on cross-examination and said she did not know whether she wrote the date of March 15 in the blank. On May 13, 1972, Mr. and Mrs. Holk executed a contract and agreement as purchasers. Meanwhile, Mr. Holk had given his personal check for $4,500 and his company's check for $5,000 to the agent, Mallory, representing the down payment when added to the earnest money of $500. The $4,500 check payable to Frances G. Mallory was deposited by the agent in her escrow account. The check for $5,000 payable to Frances G. Mallory was never deposited.
The contract and agreement was dated May 13, 1972, and was signed by Mr. and Mrs. Holk on that date as purchasers. The contract provided for the $10,000 cash payment, description, balance of $30,000 payable in annual payments of $6,000 over a period of five years at 7% interest per annum, immediate possession by the purchasers, delivery of a warranty deed, survey, and title policy upon payment of the purchase price in full, and a forfeiture clause in the event of default by the purchasers in the payments. The contract further provided that `Time is of the essence of this Contract."
A copy of the contract was mailed to Mrs. Snider on May 12, 1972, to the Beachcomber Restaurant, by certified mail, return receipt requested, by the agent. Approval of the contract and a proposed closing statement was requested of Mrs. Snider by the agent in the letter. The weekend was suggested as a time for closing. This letter was returned to the sender marked "Unclaimed" by the postal service. On June 2, 1972, another certified letter was mailed to Mrs. Snider by the agent, addressed to Mrs. Snider at 3806-9th Avenue, Wylam, Birmingham, Alabama. In this letter Mrs. Mallory related to Mrs. Snider that she had previously mailed to her a copy of the proposed contract signed by Mr. and Mrs. Holk. She further requested a closing time. This letter was returned to the sender as being unclaimed by the addressee. On June 19, 1972, a copy of the June 2 letter was mailed to Mrs. Snider at the Beachcomber Motel. It was also unclaimed and returned to the sender. On July 5, 1972, Mr. Holk wrote to Mrs. Mallory. A portion of the letter follows:
The principal disputes in this case are whether the instrument dated March *677 11, 1972, is a contract for the sale of land or an option to purchase land, and could it be specifically enforced in an action at law.
We construe the instrument to be an option to purchase the land in question. It appears from the record that all of the parties considered the instrument to be an option. It was called an option to purchase in paragraph 4 of the bill of complaint. We are of the opinion that the option can be specifically enforced. Smith v. Cleveland, 289 Ala. 401, 268 So. 2d 14 (1972); Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975 (1902). In Fulenwider this court defined an option as neither a sale nor an agreement to sell. It is simply a contract by which the owner of property agrees with another that he shall have the right to buy the property at a fixed price within a certain time. He does not sell his land; he does not then agree to sell it; but he does then sell something, viz.: the right or privilege to buy at the option or election of the other party. The second party gets in praesenti not lands, or an agreement that he shall have lands, but he does get something of value, that is the right to call for and receive lands if he elects. The owner parts with his right to sell his land, except to the other party for a limited period.
The contract here was mutual and binding on both parties. Mrs. Snider interprets the instrument as an option but says that time was of the essence; that the option was not exercised within sixty days from March 11, 1972. She disputes the fact that she accepted on March 15, 1972, the date appearing on the face of the instrument. She contends that she accepted on March 11. The date of acceptance and the date of exercise of the option are the major points of her argument. In our opinion her argument is without merit. The option did not provide that time was of the essence. The contract and agreement did provide for time being the essence, but the option did not. Time is not the essence of a contract unless it is expressly stated by the parties or unless it naturally follows from the circumstances of the particular case. McFadden & Bro. v. Henderson, 128 Ala. 221, 29 So. 640 (1900); Fulenwider, supra. It does not appear from the record of this case that time was of the essence. Mrs. Snider refers to the fact that there appeared to be a "hurry-up" effort on the part of Mr. and Mrs. Holk to close on May 14, 1972, as being indicative that they considered time being the essence. She apparently overlooks the fact that Mrs. Mallory was her agent, and it was her agent who sent her the letters on May 12, June 2, and June 19, 1972, enclosing the contract and agreement for the approval of Mrs. Snider. We are not convinced from the evidence of the case that the parties intended time being the essence.
We are of the opinion that the evidence of this case does not sustain the action of the trial court.
The record shows that Mr. and Mrs. Holk have been ready, willing, and able to perform on their part since the date of the exercise of the option, and they are entitled to have specific performance.
Reversed and remanded.
BLOODWORTH, ALMON and EMBRY, JJ., concur.
HEFLIN, C. J., concurs in the result.
FAULKNER, Justice.
Mrs. Snider states in her brief on application for rehearing that time was of the essence of the option; that the court held time was not the essence of the option in this case.
Mrs. Snider cites National Security Insurance Company v. Stewart, 43 Ala.App. *678 274, 188 So. 2d 774 (1965) and Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427 (1926) as saying "the period of time in the case of an option is of the essence of the agreement." In Murphy Justice Somerville said in reference to an option that time is ordinarily of the essence and should be strictly construed. He further said, "the generally recognized principle that in option contracts, unless expressly negatived, time is always of the essence. . . ." Justice Somerville then construed the contract before the court as one being applicable to the strict rule of performance and held that the facts and circumstances did not excuse the delay in performance of the contract. In National Security Insurance Company the Court of Appeals said "the period of time in the case of an option is of the essence of the agreement," and the doctrine of waiver was not applicable.
This court said in the original opinion that, "It does not appear from the record of this case that time was of the essence." We construed the agreement, and from the facts and circumstances of this case, and the actions of the parties, concluded that the agreement was not one for strict construction.
Opinion extended.
Application for rehearing overruled.
HEFLIN, C. J., and ALMON and EMBRY, JJ., concur.
BLOODWORTH, J., concurs specially.
BLOODWORTH, Justice (concurring specially).
I concur in denying the application for rehearing, although I have concluded that I should withdraw my concurrence in Mr. Justice Faulkner's original opinion and concur specially. My reasons are stated below.
In the opinion, the written agreement dated March 11, 1972, is construed as an "option to purchase," the term of the option period being 60 days. The opinion then holds that a binding contract was created when the prospective purchasers attempted to "exercise the option" even though more than 60 days had elapsed at the time of exercise because the "option to purchase" did not expressly provide that "time is of the essence." I cannot agree.
In Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975 (1902), the Court quoted with approval the following, viz.:
The reason for this rule is explicitly stated in Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427 (1926):
*679 Thus, it is well settled that in an "option to purchase" time is always of the essence unless the contrary appears and if an "option to purchase" is not exercised within the time provided, it expires by its own terms. Nevertheless, I concur in the opinion that the judgment of the trial court should be reversed.
In my judgment, the document dated March 11, 1972, is not an "option to purchase" but a binding executory bilateral contract. In such a contract, time is not of the essence unless expressly stated therein or unless it naturally follows from the circumstances of the particular case. Fulenwider v. Rowan, supra.
Therefore, I agree that appellants' tender of performance on May 13, 1972, came within a reasonable additional time (three days) and entitled appellants to specific performance of the installment purchase contract.
An examination of the document in question is necessary for understanding why this document is not an "option to purchase" but an executory bilateral contract to sell. The document provides as follows:
This instrument contains an offer to purchase by appellants, the prospective purchasers. When appellee, owner, accepted that offer, an executory contract to buy and sell was created. Appellants' (purchasers) offer to buy was converted into a promise to buy and appellee's (owner) acceptance of the offer was converted into a promise to sell. Appellants did not purchase an "option to purchase" by giving $500 as consideration therefor. Appellants paid the appellee owner $500 as earnest money, or as a partial downpayment, which was to be kept by the owner as damages should the purchasers breach the bilateral executory contract by failing to perform. Furthermore, as the original opinion holds, the agreement contains the requisites for specific performance.
Regardless as to whether the agreement is labeled an "option to purchase" or an "executory contract to sell," it is clear that, as a matter of law, appellants did not breach the contract by being three days late. The agreement states that action by the appellants was due only after appellee, owner, furnished appellants with a certified survey and a title insurance binder for the property. Appellee owner never attempted to comply with these provisions.
The "contract and agreement" (referred to in the March 11 contract) is, in effect, a substitute for the deed and mortgage deed and is in substance an installment purchase contract, not unlike the traditional conditional sales contract, by which seller retains title pending payment of all the purchase price. The subsequent delivery of the deed at the end of the five-year term is analogous to the formal satisfaction or cancellation of a mortgage deed when the mortgage is paid in full.
*681 Thus, it is that, although I cannot agree with parts of the original opinion, I do concur in the reversal of the judgment of the trial court and in the denial of the application for rehearing.
ALMON, J., concurs. | March 6, 1975 |
0c9011a9-bcea-402d-843c-3cc0c0c1290d | Murphy v. Dees | 307 So. 2d 1 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 1 (1975)
Louis F. MURPHY
v.
Charles H. DEES.
SC 826.
Supreme Court of Alabama.
January 16, 1975.
*2 Steiner, Crum & Baker, M. R. Nachman, Jr., Montgomery, and William B. Matthews, Ozark, for appellant.
Charles L. Woods, Ozark, for appellee.
BLOODWORTH, Justice.
Appellant Murphy appeals from the following "final decree" of the Circuit Court of Dale County:
"Done in chambers this the 18th day of March, 1974."
The action was originally brought by Dees as a petition for the sale of certain described real property allegedly owned by Murphy and Dees jointly or as tenants in common. The complaint alleges that the property cannot be equitably divided in kind and seeks a sale for division. By answer and cross-bill Murphy denied that Dees had any interest in the property, sought a complete accounting of all matters arising out of the parties' operation of a cattle farm on the real property sought to be sold, and prayed that he (Murphy) be declared the sole owner. The cattle farm was operated by Murphy and Dees either as a joint adventure or partnership.
Murphy's primary complaint on this appeal is that the trial court's decree is erroneous because it orders a sale for division *3 of the property, both real and personal, but does not contain an express finding that the real property cannot be equitably partitioned or divided in kind, citing Crausby v. Crausby, 164 Ala. 471, 51 So. 529 (1909); Dillard v. Alexander, 277 Ala. 202, 168 So. 2d 233 (1964); Compton v. Simmons, 223 Ala. 352, 135 So. 570 (1931).
In this state, it has been unquestionably the law that a court possesses no power to order a sale for division of jointly owned real property absent the consent of all joint owners, unless it is alleged and proved that the property is incapable of being equitably partitioned or divided in kind.
Although the cases cited by appellant Murphy do stand for this proposition, they do not hold that the decree of sale must contain an express finding that the property cannot be equitably divided in kind. Nor, have we found such a case so holding. However, appellee Dees, in brief asserts:
Appellee Dees further admits, in brief:
Although neither the record nor the appellee's brief contains a joinder in error as required by our Supreme Court Rule 1, failure to file a formal joinder in error "ordinarily is not held against the appellee." Cox v. Hunter, 39 Ala.App. 195, 96 So. 2d 704 (1957).
Notwithstanding appellee's apparent consent, in brief, "that this case * * * should be reversed * * * and * * * the trial court [directed] to make a finding * * * as to whether or not this property could be equitably divided in kind * * *," our courts have held that consent or agreement of parties can neither confer nor oust an appellate court of its jurisdiction. State of Alabama ex rel. Crow v. Crook, Judge, etc., 123 Ala. 657, 27 So. 334 (1898); Boss Livery Co. v. Griffith, 17 Ala.App. 474, 85 So. 849 (1920); Vol. 2 Ala.Dig. Appeal and Error; Vol. 2A.
Otherwise, a confession of error and resultant reversal would avail nothing if, in fact, the "error" confessed to did not constitute reversible error as a matter of law. Just as in the instant case, it would be anomalous, to say the least, to reverse and remand this cause to the trial court, directing it to make a finding, when no such finding is required by law.
We cannot, therefore, reverse and remand on account of any apparent consent on the part of appellee. Neither can we reverse under our case law because of omission of such finding although we are cognizant of the practice which has heretofore prevailed (throughout most of the State) of including such a finding in the final decree. See Jordan v. Ellis, 278 Ala. 116, 176 So. 2d 244 (1965).
Appellee Dees contends there is a sufficient allegation in the bill that the land *4 cannot be equitably divided or partitioned in kind. We agree.
Appellant Murphy suggests that the evidence to support such allegation is insufficient. We turn to the record and find there is evidence to the effect that there is a farmhouse and barn on the tract (the locations of which are not revealed.) The only other evidence to support the allegation is that of appellee Charles H. Dees, who being first duly sworn, testified as follows:
"BY MR. WOODS:
The last answer is clearly conclusionary. It is somewhat equivocal and very meagre.
Altogether we consider the evidence is insufficient to support the allegation of the bill of complaint that the lands could not be equitably divided among the owners. Prosch v. Prosch, 47 Ala.App. 33, 249 So. 2d 855, cert. den., 287 Ala. 740, 249 So. 2d 860, 861 (1971); Alexander v. Livingston, 206 Ala. 186, 89 So. 520 (1921).
It is therefore that we hold that the decree is erroneous in ordering a sale of the property.
Inasmuch as this cause must be reversed and remanded for the reason we have stated, and it further appears highly likely that certain questions will arise on the remand, we think we may prudently mention them at this time.
As pointed out in brief by appellee, Dees, the decree does not "* * * ascertain and declare the rights, titles, and interests of all parties to such suit * * *" as required by Tit. 47, § 188, Code of Alabama 1940 (Recompiled 1958).
Our cases do require that the decree of sale fix the time, place, and terms of sale, as such are held to be matters of importance and should not be left to the discretion of the register. Marshall v. Rogers, 230 Ala. 305, 160 So. 865 (1935).
Appellant Murphy also complains that the court failed to render an accounting between the parties. It is true that no reference[1] to the register or special master was made and that no detailed account was stated by the court.[2]
In McLeod v. Willard, 257 Ala. 672, 674, 60 So. 2d 692, 693 (1952), this Court when faced with a similar situation, held, viz.:
The record in the instant case contains voluminous testimony and documentary exhibits as to both services and money contributed by both men. It is undisputed that the money contributed by Murphy far exceeds that contributed by Dees. Nevertheless, the decree orders the proceeds of the sale to be divided equally. Thus, it would appear that the trial court credited Dees with the value of his personal services.
The rights and liabilities of joint ventures and partners, to the extent the agreement contemplates the rendering of personal services by the parties, are the same. See 48 C.J.S. Joint Adventures § 8. As a general rule, a partner or joint venturer is not entitled to credit for his services absent an agreement for the same. See 48 C.J.S. Joint Adventures § 9; 68 C. J.S. Partnership § 94.
In the light of our reversal of this cause on other grounds, we will not undertake to review the matters of accounting as the Court did in McLeod, supra, and will make no determination as to whether the trial court was correct in crediting Dees with the reasonable value of his personal services. In view of the remand, however, we call the trial court's attention to the general rules governing the allowance of the reasonable value of personal services rendered by one of the partners to the partnership at 68 C.J.S. Partnership § 54.
Generally, each party is entitled to credit for expenditures made in the ordinary course of the enterprise. See 48 C.J. S. Joint Adventures § 11.
It also appears that, in the operation of this cattle farm, some tasks required more than the labor of one man at a time. To obtain such labor, there are tendencies of evidence to effect that Dees worked on the farms of neighbors, who in turn helped him in the operation of the parties' farm and that Dees cut, rowed, and baled hay on the farms of his neighbors on shares and that the hay so acquired was used in the parties' joint enterprise. Regardless as to whether Dees is entitled to compensation for his services rendered directly to the partnership, it may be that he is entitled to credit in the accounting for the reasonable value to the enterprise of the aforementioned efforts. This, and the other matters to which we have referred, we leave in the hands of the trier of fact, who having heard the testimony, will apply thereto the legal principles to which we have alluded.
Reversed and remanded.
HEFLIN, C.J., and MERRILL, COLEMAN, HARWOOD, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
[1] See Rule 53, A.R.C.P., for the procedure applicable to "MASTERS" and "References" thereto.
[2] See Rule 52, A.R.C.P., for the procedure as to "FINDINGS BY THE COURT." | January 16, 1975 |
b7ec6ecb-bb03-41ae-bdf5-2b2b50e0886e | Alabama Public Service Com'n v. Chem-Haulers, Inc. | 309 So. 2d 453 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 453 (1975)
ALABAMA PUBLIC SERVICE COMMISSION et al.
v.
CHEM-HAULERS, INC., a corporation, et al.
SC 981.
Supreme Court of Alabama.
February 27, 1975.
Rehearing Denied March 27, 1975.
*454 Carl Evans, Montgomery, for Alabama Public Service Commission.
Maurice F. Bishop, Birmingham, J. Douglas Harris, Montgomery, for intervenor-appellants.
Robert S. Richard and William K. Martin, Montgomery, for Ross Neely Express, Inc., Schwerman Trucking Co., and Ecoff Trucking, Inc.
Winston B. McCall, Birmingham, for appellees.
MERRILL, Justice.
The Alabama Public Service Commission overruled a finding of one of its examiners without making any findings of fact. The circuit court set the order aside. We affirm.
Deaton, Inc., and Chem-Haulers, Inc., filed an application with the Alabama Public Service Commission, hereinafter referred to as APSC or the Commission, under the provisions of the Alabama Motor Carrier Act of 1939, Tit. 48, §§ 301(1)-301(5), *455 Code 1940, as amended, seeking approval to "split" Deaton's operating rights.
Deaton holds certificate of convenience and necessity No. 695 issued pursuant to Tit. 48, § 301(8). Certificate No. 695 authorizes the transportation of general commodities over irregular routes between (a) all points within a 125-mile radius of Birmingham; (b) Birmingham and all points within a 15-mile radius thereof and Mobile and all points within a 15-mile radius thereof; and (c) Mobile and all points and places within 10 miles thereof and Selma and all points within 10 miles thereof.
The parties sought to transfer to Chem-Haulers authority to transport commodities in bulk. Deaton was to retain authority to transport general commodities, excluding commodities in bulk.
After due notice, protests were filed by Miller Transporters, Inc., Matlack, Inc., Schwerman Trucking Co., Ross Neely Express, Inc., Ecoff Trucking, Inc., Decatur Petroleum Haulers, Inc., Redwing Carriers, Inc. and Fleet Transportation Company, Inc.
By written order of the Commission, the case was referred to an examiner for hearing and recommendation. Tit. 48, § 301(7). After hearing the evidence ore tenus, the examiner made a written report containing, among other things, evidence, conclusions, his analysis of the evidence, legal standards applicable, and his findings and conclusions.
The examiner recommended that the transfer be approved, but the Commission denied the application for transfer with only this statement:
Deaton and Chem-Haulers appealed to the Circuit Court of Colbert County, Tit. 48, § 301(27). Protestants in the APSC proceedings intervened. The circuit court set aside the order and remanded the case to the Commission with directions to approve the application for transfer of that portion of Certificate No. 695 which authorized the transportation of commodities in bulk. Intervenors then appealed from the order of the circuit court.
The proceedings on appeal to the circuit court are governed by Tit. 48, § 82, Code 1940. This section provides that the Commission's "order shall be taken as prima facie just and reasonable." The circuit court shall set aside the order if it finds that "the commission erred to the prejudice of appellant's substantial rights in its application of the law; * * * or was based upon a finding of facts contrary to the substantial weight of the evidence."
On appeal to this court, we must review the judgment of the circuit court without any presumption of its correctness, since that court was in no better position to review the order of the Commission than we are. Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409; Alabama Public Service Commission v. Consolidated Transport Co., 286 Ala. 323, 239 So. 2d 753. The evidence was not taken before the trial judge in the circuit court.
We are governed by the same rules in our review as was the circuit court. We review the order of the Commission as though the appeal from the Commission's order had been taken directly and primarily to this court. Alabama Public Service Commission v. Nunis, supra; Alabama Public Service Commission v. Consolidated Transport Co., supra.
*456 Here, the Commission made no finding of facts. The rule of review which would normally control is the one stated in Consolidated Transport, supra, 239 So.2d at p. 756:
However, in the instant case, the evidence was heard ore tenus before the examinernot the Commission. Appellants contend that the Commission can properly substitute its own judgment for the judgment of the examiner just as if the Commission had heard the evidence. We do not agree.
In Alabama Public Service Commission v. Perkins, 275 Ala. 1, 151 So. 2d 627, another motor carrier case, the Commission rejected the findings of the examiner who heard the evidence. The trial court reversed. This court, in affirming the lower court, discussed the relationship between the Commission and examiner at page 6, 151 So.2d at page 631:
But appellants contend that such a position is directly contrary to Tit. 48, §§ 82 and 301(7). This court, however, squarely met that contention on rehearing in Perkins:
After reading the transcript of the proceedings before the attorney-examiner, we cannot say that his finding of facts was contrary to the substantial weight of the evidence. We are, therefore, remitted to the question whether there was a misapplication of the law.
Title 48, § 301(15) controls the transfer of certificates and requires a finding by the Commission (1) that the proposed transferee or lessee is in all respects qualified to conduct the service or operation contemplated by the certificate and (2) that the proposed transfer or the approval of said lease is consistent with the public interest.
The examiner expressly found that Chem-Haulers was in all respects fit to operate the bulk commodities authority now being operated by Deaton. Indeed, one of the arguments of appellants is that Chem-Haulers is too well qualified. Thus, the first requirement for the transfer of the certificate is satisfied.
The phrase "consistent with the public interest" is the controlling factor in our inquiry. "Consistent with the public interest," though not a finding of fact, constitutes an application of the law to the facts. Alabama Public Service Commission v. Consolidated Transport Co., supra; Alabama Electric Cooperative, Inc. v. Alabama Power Co., 274 Ala. 332, 148 So. 2d 613.
Appellants submit that "consistent with the public interest" embraces the interest of competing carriers, as well as that of the shipping public. We agree. In Osborne Truck Lines, Inc. v. Alabama Public Service Commission, 284 Ala. 166, 223 So. 2d 284, a contract carrier had applied for an operating permit. Tit. 48, § 301(11). Several common carriers protested that they would be adversely affected by the proposed transfer. We stated in Osborne, at p. 288:
Appellants contend that "certificate splitting" where any duplication of operations would result is not consistent with the public interest.
It is argued that approval of this application would enable those general commodity carriers retaining the authority to transport "general commodities except commodities in bulk" to continue to transport commodities in bulk through the use of barrels, drums or other type containers, and as a result, the 47 general commodity certificates in Alabama could be split to authorize 47 additional carriers or a total of 94 bulk carriers.
The fallacy of this argument is that it assumes a duplication of service. The evidence before the Commission was to the effect that the Commission had never had difficulty in distinguishing between general commodity hauling and commodities in bulk. The examiner expressly found that no duplication of service would result.
Appellants contend that it is the policy of the APSC not to transfer certificates which are dormant unless good cause is shown for such transfer. Floyd & Beasley Transfer Co., Inc. v. Alabama Public Service Commission, 276 Ala. 130, 159 So. 2d 833.
We agree with appellants' statement of the law but, here again, the examiner found for the appellees:
We cannot say that this finding was against the substantial weight of the evidence.
We are not be understood as holding that APSC is required in all cases to make an express finding supporting its order. See Nunis, 252 Ala. 30, 399 So.2d 409[4, 5]. But when the Commission's examiner states the evidence and makes detailed findings and conclusions, the Commission, if it rejects the findings and conclusions, cannot rebut the attending presumption merely by stating that "the proposed transfer * * * will not be consistent with the public interest."
Affirmed.
HEFLIN, C. J., and FAULKNER, JONES and SHORES, JJ., concur. | February 27, 1975 |
c2478042-3c7f-49ed-9c12-fb9b72eab6bc | State v. Ward | 306 So. 2d 265 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 265 (1975)
STATE of Alabama
v.
Elden H. WARD and Vernell Ward.
SC 866.
Supreme Court of Alabama.
January 9, 1975.
William S. Halsey, Anniston, Sp. Asst. Atty. Gen., for the State of Alabama.
James S. Hubbard, Anniston, for appellees.
BLOODWORTH, Justice.
State of Alabama appeals from the ruling of the trial court denying its motion for new trial after verdict and judgment awarding landowners $49,000 damages in a suit to condemn a portion of their lands for highway purposes. We affirm.
A service station and residence were located on the land in question. The only issue submitted to the jury was the amount of damages to be awarded the landowners for that portion of their lands taken.
Although the State has made ten assignments of error (one of which complains *266 of the overruling of its motion for new trial), its appeal is taken from the adverse ruling on motion for new trial. We are therefore limited in our review solely to those rulings complained of and which are contained in grounds of the motion for new trial. This Court has long been committed to the rule:
Thus, we proceed to consider the grounds of the motion for new trial.
*267 In the first ground, the State complains of the court's "refusal" to grant a written request by the jury to review the testimony of State's witness Towns. We have examined the transcript of the evidence and fail to find any "refusal" by the trial court to grant such request. In fact, the record of the trial is silent as to any request. It does appear in the record that, at the hearing on motion for new trial, counsel for the State called as a witness the foreman of the jury, which sat on the case. When he was asked if he had prepared such a request, he replied that he had, but that the jury went ahead, discussed, and settled this matter before the request was ever transmitted from the jury to the trial judge.
It is obvious that since no request was made of the trial court to review witness Town's testimony, no ruling of the trial court was invoked. It should be self-evident that, in these circumstances, this could not constitute reversible error. Wilbanks v. State, 289 Ala. 171, 266 So. 2d 632 (1972).
The remaining grounds of the motion (2-7) relate to evidentiary rulings by the trial judge. They charge error by the trial court in sustaining objections by the landowners to questions propounded to state's witness Towns as to the consideration paid for allegedly "comparable" sales No. 1, No. 2, and No. 3. Since we agree with appellees-landowners that there is no reference whatever in the record to the court's ruling on an objection to a question as to "comparable" sale No. 2 (grounds 3 and 6), we pretermit discussion thereof.
We now address ourselves to the remaining grounds of the motion for new trial (2, 4, 5 and 7) which complain of the trial judge's sustaining objections to questions as to the consideration paid for comparable sales No. 1 and No. 3.
It was stipulated by the parties at trial that the sole issue to be submitted to the jury "is the amount of damages" to be awarded the landowners.
No ground of the motion for new trial averred that the damages awarded were excessive.
The rule of our cases in such instances is found in our recent case of Mims v. Mississippi Power Company, 282 Ala. 90, 209 So. 2d 375 (1968), viz.:
Since the sole issue submitted to the jury was the question of damages, and the motion for new trial contained no ground charging that the damages awarded were excessive, and since the remaining grounds of the motion (2, 4, 5, and 7) charge error in rulings on evidence as to damages, we hold, in accord with our case law, that cause for reversal is not made to appear in the remaining grounds of the motion for new trial. Mims v. Mississippi Power Company, supra.
In condemnation cases, it is the rule of our decisions that when the jury has viewed the premises (as it did here), "it is not bound by the estimate of damages given by expert testimony." Whitman v. Housing Authority of City of Elba, 272 Ala. 245, 130 So. 2d 362 (1961); State v. Carter, 267 Ala. 347, 101 So. 2d 550 (1958). The landowners contend therefore that errors, if any, in the trial court's rulings amount to "harmless error" under Supreme Court Rule 45. In view of the result we reach, we need not consider this contention.
It is therefore that we must affirm the judgment of the trial court denying appellant a new trial.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
COLEMAN, J., dissents.
COLEMAN, Justice (dissenting):
I dissent for reasons stated in my dissenting opinion in State v. Dunlap, 279 Ala. 418, 186 So. 2d 132; State v. Graf, 280 Ala. 71, 189 So. 2d 912. | January 9, 1975 |
c5a4330e-0424-4a41-b173-b92dbd3af822 | Brantley v. State | 317 So. 2d 345 | N/A | Alabama | Alabama Supreme Court | 317 So. 2d 345 (1975)
In re Jerry Dean BRANTLEY
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 925.
Supreme Court of Alabama.
January 9, 1975.
*346 William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
No brief for respondent.
MADDOX, Justice.
The defendant was indicted for possession of marijuana, a felony. He was convicted of possessing it for personal use, a misdemeanor. Title 22 § 258(47), Code of Alabama 1940. The Court of Criminal Appeals reversed and remanded, holding that the admission of LSD tablets and a packet of Cocaine powder found in defendant's home along with the marijuana was prejudicial error. This Court granted the State's petition for writ of certiorari to review that holding.
The only question presented is whether the admission of the LSD and Cocaine into evidence was prejudicial error. We hold that it was not, under the facts and circumstances of this case.
The Court of Criminal Appeals, 55 Ala. App. 493, 317 So. 2d 337, in holding the admission of the LSD and Cocaine to be reversible error, said:
Generally, evidence of other separate and distinct criminal acts is inadmissible, since the only facts laid before the jury should consist exclusively of the transaction which forms the subject matter of the indictment, which alone the defendant is called upon to answer. Hinton v. State, 280 Ala. 48, 189 So. 2d 849 (1966). There is, however, a well-recognized exception to this general rule. In Garner v. State, 269 Ala. 531, 114 So. 2d 385 (1959), this Court said:
In Morrow v. State, 52 Ala.App. 145, 290 So. 2d 209 (1973), the Court of Criminal Appeals allowed the introduction of marijuana into evidence in a prosecution for possession of LSD. Except for the fact that in Morrow the marijuana was in the same pouch as the LSD, the other facts of Morrow are not materially different from the facts here.
Apparantly, this Court has not ruled on the question of the admissibility of other *347 controlled drugs, which are found at one time at the scene of a crime, where the accused is charged with the possession, sale or use of drugs. Other states have considered the question, however.
In Miller v. State, 469 S.W.2d 180 (Tex.Cr.App.1971), the court held that three barbiturate capsules and two handrolled cigarettes, plus a packet and balloon containing heroin, found by narcotic officers at the time they entered defendant's apartment, pursuant to a valid search warrant, where admissible in a prosecution for the offense of possessing heroin. The Court said that other "illegal drugs or narcotics found at the same time and place are admissible, as they are part of the res gestae of the offense."
Similarly, in Tyra v. State, 496 S.W.2d 75 (Tex.Cr.App.) cert. denied 414 U.S. 1009, 94 S. Ct. 371, 38 L. Ed. 2d 247 (1973), a prosecution and conviction for possession of marijuana, officers searched defendant's apartment pursuant to valid warrant to find heroin and marijuana. They found large quantities of marijuana. In addition, officers found a scale, two "roach" holders, amadone pills, and three spoons and syringes which were shown to contain traces of heroin.
In Tyra, the accused contended that the introduction of the pills, spoons, and syringes was prejudicial, and that the items were not connected with the offense charged. The Court said that in a drug possession case, other illegal drugs found at the same time and place are admissible since they are part of the same transaction. The Supreme Court of the United States denied certiorari. Arizona seems to permit the state to show the "complete story." See State v. Villavicencio, 95 Ariz. 199, 388 P.2d 245 (1964) [a drug possession case].
Brantley was charged with the offense of possessing marijuana, a felony. Possession of marijuana for personal use is a misdemeanor. The fact that Brantley possessed other drugs in the trailer where the marijuana was found and the fact that he had scales and a pipe would show the "complete story," and would be relevant on the issue on whether Brantley possessed marijuana with an intent other than for his personal use. The admission of the other drugs by the trial court was not erroneous in this case. The Court of Criminal Appeals erred; therefore, its judgment is reversed and remanded.
Reversed and remanded.
MERRILL, BLOODWORTH, McCALL and JONES, JJ., concur.
HEFLIN, C. J., and COLEMAN, HAWOOD and FAULKNER, JJ., dissent. | January 9, 1975 |
d3203270-871b-4854-89b3-647c52eb86b2 | Board of School Com'rs of Mobile County v. Reynolds | 310 So. 2d 876 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 876 (1975)
BOARD OF SCHOOL COM'RS OF MOBILE COUNTY, a Public Body Corporate
v.
Markward REYNOLDS, Individually and d/b/a Security Roofing Co., et al., etc.
SC 892.
Supreme Court of Alabama.
March 27, 1975.
Rehearing Denied April 24, 1975.
*877 Pillans, Reams, Tappan, Wood, Roberts & Vollmer, and Geary A. Gaston, Mobile, for appellant.
Marr & Friedlander, and Daniel G. Sayers, Mobile, for appellees.
SHORES, Justice.[*]
This appeal is from a judgment dismissing, with prejudice, the complaint as last amended.
The plaintiff-appellant, Board of School Commissioners of Mobile County, filed the original complaint on January 19, 1971. Three of the six counts alleged that on either November 14, 1969, or November 17, 1969, the defendants-appellees, roofing subcontractors engaged in making repairs at several schools operated by the Board, supplied the general contractor with false statements for labor and material furnished in doing the work, and that the Board relied upon the misrepresentations in those statements and paid the general contractor.
The other counts allege that in June, 1969, the Board entered into a contract with the same general contractor for the renovation of kitchens in four schools; and, during August, September, and October, 1969, the general contractor submitted bills which overstated the amounts due under the contract. The defendants are alleged to have subsequently falsified and backdated bids for work performed for the general contractor to enable the general contractor to perpetuate a fraud on the Board.
The demurrer filed to the original complaint was sustained.
There were four amendments to the complaint, three of which were substantially total restatements of the plaintiff's claims. The last amended complaint was filed on January 4, 1974. The A.R.C.P. having become effective, the defendants filed a motion to dismiss pursuant to A.R. C.P. 12(b)(6).
Following argument by counsel, an order was entered on March 29, 1974, granting the motion to dismiss and allowing the plaintiff until June 1, 1974, to further amend. There being no further amendment, on June 7, 1974, a judgment was entered dismissing the action with prejudice.
Among the grounds of their motion to dismiss, the defendants averred that it affirmatively appeared from the complaint that the plaintiff's claims were barred by the statute of limitations. As we agree, it is unnecessary to consider other grounds of the motion.
An action for fraud is subject to the one-year statute of limitations. Title 7, § 26, Code 1940. The running of the statute does not commence until the discovery of the fact constituting the fraud. Title 7, § 42, Code 1940. In the complaint on this appeal, all averments as to time are of dates more than one year prior to its filing.
In common law pleading, the allegations of time and place were generally immaterial. Use of the videlicet was commonplace and variances as to allegations of time and place were not prejudicial. With the adoption of A.R.C.P. 9(f), averments of time and place have become material.
This requirement is not as restrictive as it might first appear, nor is it contra to the liberality to be accorded the Alabama Rules of Civil Procedure. According to Wright & Miller, Federal Practice and Procedure (1969): Civil § 1308, at 438, the Advisory Committee to the Federal Rules of Civil Procedure considered the requirement for pleading time and place with accuracy would enable an earlier identification and isolation of the transaction or *878 event in issue and supply means for testing and adjudicating certain claims and defenses the statute of limitations, in particular.
A.R.C.P. 9(f) does not require that time and place be alleged. See: Kuenzell v. United States, 20 F.R.D. 96 (N.D.Cal., 1957). It only requires that when the pleader does allege a certain time or place, it must be done accurately.
In this regard, Wright & Miller, Federal Practice and Procedure: Civil § 1308, at 439, states:
See Kincheloe v. Farmer, 214 F.2d 604 (7th Cir., 1954), cert. den. 348 U.S. 920, 75 S. Ct. 306, 99 L. Ed. 721 (1955).
With respect to allegations of fraud, in Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80 (2nd Cir., 1961), cert. den. 368 U.S. 821, 82 S. Ct. 39, 7 L. Ed. 2d 26 (1961), the court quoted from Stearns v. Page, 7 How. 819, 12 L. Ed. 928 (1849), saying:
And in Associates Financial Services Co. v. First National Bank of Mobile, 292 Ala. 237, 242, 292 So. 2d 112 (1974), this court said:
Here, as in McGruder v. B & L Construction Company, Inc., 293 Ala. 354, 303 So. 2d 103 (1974), there was a hearing on the motion to dismiss; and, while granted time in which to do so, the plaintiff chose not to amend further. Applying Rule 9(f) in granting defendants' motion to dismiss was not error and was in keeping with the purposes of the Alabama Rules of Civil Procedure.
The judgment of dismissal was correct; it is, therefore, affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.
[*] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Title 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So. 2d 858. | March 27, 1975 |
b66617be-0785-4ab7-91f6-1f0bdb61dfbc | Alabama Gas Corporation v. Wallace | 308 So. 2d 674 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 674 (1975)
ALABAMA GAS CORPORATION
v.
George C. WALLACE, as Governor of the State of Alabama, et al.
LEE BROTHERS CORPORATION et al.
v.
ALABAMA GAS CORPORATION.
SC 712, SC 712X.
Supreme Court of Alabama.
January 16, 1975.
Rehearing Denied March 6, 1975.
*676 T. B. Hill, Jr., Robert C. Black, Montgomery, and Douglas Arant, Macbeth Wagnon, Jr., Thad G. Long, Birmingham, for appellants and cross-appellees.
Maurice F. Bishop, Birmingham, for Hon. George C. Wallace, as Governor of Ala., and State of Ala.
Oliver W. Brantley, Troy, for the Five Corporate Intervenors.
FAULKNER, Justice.
On February 2, 1971, the Alabama Gas Corporation (ALAGASCO) filed an application with the Alabama Public Service Commission (Commission) under and pursuant to § 53, Title 48, Code of Alabama 1940, Recompiled 1958, seeking an increase of $5,312,000 per year in its schedule of rates and charges for supplying natural gas to the public. ALAGASCO proposed to make the new schedule of rates and charges as amended effective April 5, 1971. The Commission suspended operation of the proposed new rates and charges through June 4, 1971, and set the application for public hearing to commence on April 14, 1971, and notice of the hearing was given to ALAGASCO, The State of Alabama, and to the agencies affected by the proposed rate increase. Publicity was given of the application and the date and place of the hearing through newspaper accounts. The State of Alabama, Hon. George C. Wallace, as Governor, the Department of Defense of the United States of America, Lee Brothers Corporation, National Gypsum Company, Tape-Craft, Inc., Indian Head Yarn & Thread, F.M.C. Corporation, Kilby Steel Division, Monsanto Company, and others filed petitions to intervene, and their intervention was permitted under § 65, Title 48.
Hearings commenced on April 14, 1971, and ALAGASCO presented evidence in support of the proposed new rates. Cross-examination of witnesses for ALAGASCO, the intervenors' evidence, and rebuttal evidence were concluded May 29, 1971.
On June 4, 1971, the Commission issued its opinion and order denying ALAGASCO's proposed rate increase as originally filed, and ordered ALAGASCO to file new schedules of rates calculated to produce a return of 7.25% on the fair value rate base under § 52, Title 48, or 8.3% under Act 97, Acts of Alabama, 1971, Vol. I, p. 171. (The dollar amounts of the two rate bases were not set out in the Commission's order.) In doing so, the Commission reduced ALAGASCO'S requested increase from $5,312,000 to $3,822,000. New schedules of rates in compliance with the Commission's order were filed by ALAGASCO on June 10, 1971. The Commission gave its approval on June 10, 1971, by a majority composed of Commissioners Owen and Connor. Commissioner Juanita McDaniel allowed an annual increase of revenue of $1,408,170. She found that a rate of return of 7.89% was reasonable. She also found a rate base of $76,817,663, which was computed under the provisions of Act 97.
The intervenors appealed the Commission's orders of June 4, 1971 and June 10, 1971, to the Circuit Court of Montgomery County. On August 14, 1973, the Circuit Court directed the Commission to file with the court a memorandum prepared from the certified record, without taking additional testimony, explaining how the Commission arrived at the rate base, and rate of return, and a detailed finding of the increase granted by the Commission. On September 14, 1973, a memorandum was filed by Commissioner Owen. Commissioner Connor, the other member of the *677 majority, died before the filing of the memorandum. Commissioner Hammond, who succeeded Connor on the Commission, declined to become involved in the proceedings.
Excerpts from the memorandum filed by Commissioner Owen with the Circuit Court showing the rate base and rate of return computations are set out in the Appendix to this opinion.
During the proceedings in the Circuit Court, the court permitted the taking of testimony of Commissioner McDaniel, Commission Secretary Tidmore, and Commission employee Williams over the objection of ALAGASCO. Furthermore, the court received into evidence, over objection of ALAGASCO, an affidavit by the intervenors. This affidavit concerned a financing transaction of $815,000 of a Liquified Natural Gas facility of ALAGASCO, which occurred after the close of the test year involved in the rate investigation. ALAGASCO says the affidavit was newly discovered evidence prohibited by statute. However without waiving its objection to the introduction of the intervenors, ALAGASCO filed a rebuttal affidavit.
The Circuit Court found that the June 4, 1971, order of the Commission was not supported by substantial evidence in the certified record. The court set aside the order and adopted the dissenting opinion of Commissioner McDaniel as its own. The case was remanded to the Commission with directions to fix new rates for ALAGASCO resulting in a reduction of its annual revenues of $2,413,830. The court disallowed attorneys' fees, taxed the costs against ALAGASCO, and held that ALAGASCO was not required to make refunds.
From the final decree of the Circuit Court, ALAGASCO appeals to this court. And, in accordance with the ruling of this court on March 7, 1974, ALAGASCO filed its supersedeas bond with the Circuit Court and it was duly approved. The intervenors argue on cross-appeal that refunds should be paid. The issue of attorneys' fees was not orally argued.
ALAGASCO, in its argument to this court, argues three propositions of law: (1) the order of the Circuit Court reaches this court without any presumption of correctness, and the Commission's order is reviewed in this court as though the appeal had been directly and primarily to this court; (2) the order of the Commission is presumed to be just and reasonable; and (3) the Commission's order should be affirmed if there is substantial evidence to support it. On the cross-appeal the intervenors argue that refunds should be ordered, and allowance of attorneys' fees.
The proceedings on appeal to the Circuit Court from the Commission are governed by § 82, Title 48, Code of Alabama 1940 (Recompiled 1958). This statute provides that the Commission's order shall be taken as prima facie just and reasonable. In Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409 (1949), this court said:
See State of Alabama v. Southern Bell Telephone & Telegraph Co., 274 Ala. 288, 148 So. 2d 229 (1962); Alabama Public Service Commission v. Southern Railway Co., 269 Ala. 63, 111 So. 2d 214 (1959). Our review in this case boils down to the question of whether the order of the Commission which shall be taken as prima facie just and reasonable, is supported by *678 substantial evidence in the certified record. On appeal the burden is upon one who would upset the order of the Commission to establish that the evidence does not sustain the conclusion reached by the Commission. Illinois Central R. Co. v. Thomas Alabama Kaolin Co., 275 Ala. 236, 153 So. 2d 794 (1963).
The Commission computed the rate base under the fair value method and under Act 97, amending § 52, Title 48. We will be concerned only with Act 97, as this Act supercedes § 52, Title 48, and is applicable in this case.
ALAGASCO'S evidence (Schedule J-1, Ex. # 23) showed that the original cost of its property as of September 30, 1970, was $107,214,141. The depreciation reserve was $33,432,185. Therefore, the original cost less depreciation as of the most recent date available, shows the reasonable value of the utility's property to be $73,781,956 ($107,214,141 minus $33,432,185). The amount of new investment to be added in the year immediately following the test period is shown by ALAGASCO'S Exhibit # 43, to be $8,610,000. The Commission deducted $200,000 (rounded figure) from the projected new investment. This amount is said to be highway reimbursements. The majority arrived at a rate base of $80,346,000 under Act 97. The majority's computation can be viewed in the Appendix to this opinion.
The minority found a rate base of $76,817,663 by starting with net plant of $73,781,956; adding an allowance of materials and supplies of $963,304; new investment of $5,410,000 ($8,610,000 minus $3,200,000), and subtracting highway reimbursements of $200,140 and 1971 accrued depreciation of $3,137,457. It is contended by the intervenors that $3,200,000 should be deducted from the amount of $8,610,000 shown by Exhibit # 43 introduced by ALAGASCO, as the sum of $3,200,000 would be used to serve new customers. We do not interpret what the legislature said in that light. The Act provides, "and the amount of the new investment to be added in the year following the test period." This language is interpreted to include the total investment to be added rather than a portion thereof.
We observe from the record that the Commission majority required ALAGASCO to file new rates to take into consideration the additional customers to be added during the year following the test year. By doing so, the majority accomplished the same end result as the minority did in eliminating $3,200,000 from new investment to be added.
We find no basis for accruing depreciation as found by the minority. The words in the statute, "the accrued depreciation, as of the most recent date available" are taken to mean accrued depreciation on the original cost of the plant property devoted to serving the public with natural gas as of the close of the test year, and before addition of new investments.
When the accrued depreciation, deducted by the minority, is added back to the minority's computation of the rate base, the minority's rate base is in close proximity to the majority rate base. In other words, disallowing the adjustment for accrued depreciation, the minority's rate base would be $79,955,120, compared with a rate base of $80,346,970 found by the majority. No *679 consideration is given to the allowance by the minority of $963,304 for materials and supplies. If this item were included, the adjusted rate base of the minority would exceed the majority's rate base.
The intervenors argued that the sum of $815,000, the cost of an L.N.G. plant, should be taken from the cost of new investment. The evidence in this issue was submitted to the Circuit Court by affidavits by both sides. One side said the L.N.G. was not constructedthe other said it was. There was error in admitting these affidavits. Section 82, Title 48 provides that "[n]o new or additional evidence may be introduced in the circuit court except as to fraud or misconduct."
We are of the opinion, after reviewing the record, that the Commission's order establishing a rate base of $80,346,970, was supported by substantial evidence. Consequently, in view of the well established principle that the Commission's order must be affirmed if there is substantial evidence to support it, we approve the Commission's rate base. Cf. North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183 (1943); Alabama Electric Cooperative, Inc. v. Alabama Power Co., 274 Ala. 332, 148 So. 2d 613 (1963); Floyd & Beasley Transfer Co., Inc. v. Alabama Public Service Commission, 276 Ala. 130, 159 So. 2d 833 (1963).
The rate of return involves: (1) Cost of debt capital; (2) Cost of equity capital; and (3) Cost of preferred stock.
The cost of debt capital was 6.93% while the cost of preferred stock was 4.70%. These figures are not in dispute. The cost of equity capital was disputed. ALAGASCO'S witness testified the return an equity capital should be 13.5%. The intervenor's witness testified the return on equity capital should be somewhere between 10.21% and 10.89%. The Commission majority arrived at a rate of return of 12.09% on equity capital. This appears to be a compromise on the part of the majority. Since this is a judgmental matter based on conflicting evidence, we are of the opinion the Commission's finding should be upheld by this court. The conflicting evidence presented an issue to be resolved by the Commission. Alabama Electric Cooperative, Inc.
The Commission majority found a rate of return of 8.3% on an Act 97 rate base of $80,347,000. Act 97 provides:
The determination of a fair return to provide the public with adequate service is a question of fact within the legislative realm of rate making. Here the Commission majority took into account the cost of debt, preferred stock, a 12.09% return on equity capital, and arrived at a rate return of 8.3%.
The rate of return in any given case calls for expert judgment not bound by any hard and fast rule or set formula. That judgment has been entrusted by the legislature to the Commission. This court's inquiry goes no further than to ascertain whether there is evidence to support the findings of the Commission. Birmingham Electric Company v. Alabama Public Service Commission, 254 Ala. 140, *680 47 So. 2d 455 (1949); City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301 (1937). In our opinion the evidence supports the rate of return found by the Commission.
The operating income produced on an Act 97 rate base of $80,347,000 and a rate return of 8.3% is $6,668,800. The adjusted operating income found for the test year was $4,699,244. Therefore, the return on the Commission's rate base was $1,969,556 more than the adjusted operating income. ALAGASCO requested an increase in operating income of $2,600,750. (To produce this increase in operating income, ALAGASCO said it would have to receive $5,312,000 in additional pre-tax revenue.) The Commission majority allowed an increase of operating income of $1,969,556, a reduction of $631,194 from ALAGASCO'S request. An addition of $124,000 of operating income from new customers produced a total reduction of $755,194. The reduction in operating revenue by the Commission was $1,492,000. This reduction corresponded to the $755,194 reduction of operating income after applying a tax factor of 0.50615 ($755,194 divided by .50615 equals $1,492,000). Reducing the requested operating revenues of $5,312,000 by $1,492,000, the Commission granted an increase in operating revenue of $3,820,000. The major adjustment in dispute in this item which materially affected the end result was the weather adjustment, the difference being adjustment based on Birmingham temperatures by the intervenors' evidence, and adjustment based on state-wide temperatures by ALAGASCO'S evidence. The Commission majority accepted ALAGASCO'S evidence in arriving at its finding. This court stated in Alabama Electric Cooperative, Inc.:
The increase in operating revenue granted by the Commission majority is approved, as there is substantial evidence in the record to support the increase.
There were no findings of fact by the Commission, but this court has held in previous cases before it that it is unnecessary for the Commission to make any findings. Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So. 2d 401 (1951); City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301 (1937). In Higginbotham this court said:
To the contrary notwithstanding, a finding of facts is most helpful in a review of a rate case.
We pretermit discussion of the remaining assignments of error found in ALAGASCO'S brief, as they are unnecessary for disposition of this case.
Since we are of the opinion that there is substantial evidence in the certified *681 record to affirm the order of the Commission, these issues in essence become moot. But, to answer the intervenors, the rates collected between the Commission's June 4, 1971, order and the decree of the Circuit Court, were lawful rates. These were the only rates ALAGASCO could collect as they were fixed after an investigation by the Commission. And, in the absence of a supersedeas authorized by § 81, Title 48, ALAGASCO was compelled by law to charge and collect those rates. T. R. Miller Mill Co. v. Louisville and N. R. Co., 207 Ala. 253, 92 So. 797 (1921). See also Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 140, 47 So. 2d 455 (1949).
Attorneys' fees are disallowed under authority of State of Alabama and George C. Wallace, as Governor of the State of Alabama et al. v. Alabama Public Service Commission, 293 Ala. 553, 307 So. 2d 521.
The decree of the Circuit Court setting aside the Commission's order is reversed and the case is remanded with direction to enter an order affirming the findings of the Public Service Commission. That part of the decree disallowing refunds and attorneys' fees is affirmed.
Affirmed in part, reversed in part, and remanded.
MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., concurs in the result.
JONES, J., concurs in the result.
"3. The fair value rate base was arrived at as follows:
"Company witness Jones presented a fair value rate base (Exhibit 23) of $94,200,000 by weighting equally (1/3 each) three components: (1) original cost; (2) reproduction cost; and (3) invested capital. Original cost and reproduction cost were reduced by deducting from working capital in each case an additional $868,000 (over and above $444,055 already deducted by the Company (Exhibit 12, line 1) in computing its working capital requirements shown on line 14 of Exhibit 23 and on Exhibit 8) for federal and state income taxes, and by deducting also the amount of $21,430 of accrued payroll taxes as suggested by Intervenor's witness Drazen (Exhibit 50, Schedule 10, page 3, line 7), for a total of $889,430. The invested capital component was also reduced $3,659,000 by the Commission majority so as to use actual September 30, 1970 capitalization rather than capitalization adjusted to reflect long-term financing done by the Company in January, 1971. (Compare last lines, columns 3 and 5, Exhibit 1.)
"In addition, since the Company's practice is to credit depreciation expense each year for the amortization of the investment tax credit and thus reduce operating expenses, which benefits the ratepayers, we added the unamortized investment tax credit of $932,078 to the original cost and reproduction cost component of the rate base. (This figure is the difference between the $1,077,590 shown on Exhibit 40, page 229, column G, and the $145,512 credited through September 30, 1970, to depreciation expense shown on line 13 of the same page.)
"Finally, we reduce the Invested Capital component of the rate base by $3,128,000 to eliminate excessive merchandising investments. Ordinarily, the Commission has not required utilities to deduct merchandising from the invested capital component of a fair value rate base, but in this case we thought the amount of merchandising receivables (Exhibit 4) was excessive and that a large part of it should be disallowed.
*682 "In summary, the fair value rate base of $91,984,000, as set out in the June 4 Order, was arrived at as follows:
"4. The rate base under Act 97 was arrived at as follows:
"We took the original cost depreciated and adjusted figure of $71,936,970 shown in the foregoing table, and adjusted this as follows:
"a. Applying Act 97, we included $8,610,000 for `new investment to be added in the year immediately following the test period.' (Exhibit 43, total for column 1) The test year ended September 30, 1970.
"b. Next, we deducted highway reimbursements to be made in the year immediately following the test year of $200,000 (Tr. 1241).
"The net effect of these adjustments, which resulted in the finding in the June 4 Order of a rate base under Act 97 of $80,347,000 is summarized as follows:
*683 "5. The rate of return was arrived at as follows:
"a. The Company's actual cost of outstanding debt capital was 6.93% and the cost of preferred stock was 4.70%, neither of which figures was in dispute.
"b. Company witness Davis testified that in his opinion the return on equity capital should be 13.½% (Tr. 145), and Intervenor witness Suelflow testified that return on equity capital should be between 10.21% and 10.89% (Exhibit 61, page 13). It was the judgment of the Commission majority that the rate of return on equity should be between the rates testified to by these two witnesses, and the Commission majority concluded that a 12.09% rate of return on equity capital should be allowed.
"6. Taking into account the undisputed costs of debt and preferred stock noted above and our findings of 12.09% return on equity capital, we found a rate of return of 7.25% on a fair value rate base of $91,984,000 and an 8.3% rate of return on an Act 97 rate base of $80,347,000. The operating income produced in each case is approximately the same:
"7. The actual operating revenues for the Company for the test year were $61,108,823 per books, producing operating income of $5,092,502 per books (Exhibit 7, page 1). However, it was necessary to adjust the revenues and income for: (1) unusually cold weather conditions existing during the test year; (2) annualizing certain operating revenues and expenses attributable to the Purchased Gas Adjustment Rider to take into account increases in costs of gas which had been in effect during only part of the test year; and (3) reflecting known changes which would affect operating expenses and revenues. Of those adjustments the only important one which was in dispute and which materially affected the end result was the weather adjustment. In making the year-end and weather adjustment, the Company followed the method specifically approved by the Commission in the Company's last rate case (Docket 14535, 1958; Re Alabama Gas Corp., 25 P.U.R.3d, 257, 272) and which method the Commission majority felt was still the appropriate method. Accordingly the Commission majority accepted the year-end and weather adjustment of $1,879,853 (Exhibit 24, line 1, column 4) made by the Company. The result of making these adjustments was to increase operating revenues by $3,550,000 (Exhibit 7, line 1, column 2). Adjustments to operating expenses were $3,943,258 (Exhibit 7, second column, next to last line), yielding a net downward adjustment in operating income of $393,258 for the test year. Thus the adjusted operating revenues for the test year were $64,658,823 and the operating income found was $4,699,244 (Exhibit 7, column 3, first and last lines).
"The June 4 Order required the Company, in effect to impute revenues attributable to the 6,000 to 6,500 new residential customers which would be added during the year following the test year. Assuming an average of 3,000 new customers throughout the year, the income (after taxes) produced by the new residential customers would be approximately $124,000 (based on the method used in the calculations in Exhibit 46).
"As shown above in Paragraph 6, the Commission majority found that operating income based upon a fair return on rate base should be $6,668,800, which was $1,969,556 more than the $4,699,244 adjusted operating income found for the test year (Exhibit 7). The increase in operating income requested by the Company (Exhibit 7) was $2,600,750. The amount allowed *684 by the Commission was $631,194 less, as shown below:
"The reduction of $631,194 in operating income shown above, when added to the $124,000 of additional operating income from new customers to be added, produces a total reduction in operating income of $755,194. The reduction in operating revenues corresponding to a $755,194 reduction in operating income is (applying a tax factor of 0.50615) $1,492,000.
"In summary, the Commission majority reduced the requested rate increase as follows:
HEFLIN, Chief Justice (concurring in the result):
The legislature of Alabama has restricted the review by courts of the action of the Public Service Commission in rate-fixing cases. The legislature has proclaimed that the rate-fixing order of the Public Service Commission must be taken as prima facie just and reasonable; and where the reasonableness or validity thereof is an issue, the burden is upon any party attacking such rates or orders to show that the same are invalid or unfair and unreasonable. Title 48, Section 71, Code of Alabama 1940 (Recompiled 1958). A long line of decisions has interpreted this legislative mandate to mean that the Commission's order must be affirmed if there is any substantial evidence to support it. Hiller Truck Lines, Inc. v. Alabama Public Service Commission, 292 Ala. 161, 290 So. 2d 649 (1974); Floyd & Beasley Transfer Co., Inc. v. Alabama Public Service Commission, 276 Ala. 130, 159 So. 2d 833 (1964); Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409 (1949); Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So. 2d 721 (1945); North Alabama Motor Express, Inc. v. Rookis, 244 Ala. 137, 12 So. 2d 183 (1943).
In Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So. 2d 721 (1945), the precedent was established that courts must guard against a substitution of their own judgment for the judgment of the Commission.
It is further clear that an appeal from a circuit court review of a Public Service Commission order reaches this court without any presumption favoring the correctness of the circuit court decision, and the Commission's order is reviewed in this court as though the appeal had been directly and primarily to this court. Alabama Public Service Commission v. Nunis, supra; Osborne Truck Lines, Inc. v. Alabama Public Service Commission, 284 Ala. 166, 168, 223 So. 2d 284, 286 (1969); State v. Southern Bell Tel. & Tel. Co., 274 Ala. 288, 295, 148 So. 2d 229, 235 (1962); Alabama Public Service Commission v. Southern Ry. Co., 269 Ala. 63, 66, 111 So. 2d 214, 215 (1959).
The only reason expressed by the lower court for reversing the majority order of the Public Service Commission was that it was not supported by substantial evidence in the certified record. The certified record reveals that the company spent considerable time endeavoring to support its position with testimony. In all candor, I can not say that there was no substantial *685 evidence in the certified record to support the order of the Public Service Commission.
In regard to the fraud and misconduct issues, it seems to be abundantly clear that the intervenors do not contend that any fraud was involved. In fact, there was no allegation in the appeal to the lower court that there was any fraud or misconduct involved. While the trial court allowed the intervenors to present evidence on these issues, the trial court did not find any fraud or misconduct. If the trial court had based its judgment on fraud or misconduct it would have been inescapable that it would have had to remand the cause for a new hearing before the Public Service Commission, which it did not do.
I concur in the result of the opinion of this court since I can not say that there was no substantial evidence before the Public Service Commission to support its order.
JONES, Justice (concurring in the result).
I concur in the result reached by the majority opinion. I am constrained to comment on two aspects of the opinion: (1) the scope of review issue and (2) the findings of fact issue.
The scope of review propositions set forth in the opinion are entirely correct in the context of the instant appeal; but I would emphasize that this appeal does not involve the constitutional issue of confiscation. The rule governing the scope of review where constitutional issues of due process are properly raised and presented to the Court is set forth in Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., 253 Ala. 1, 42 So. 2d 655 (1949).
I agree that in a case such as this in which there are no constitutional issues raised, but merely a factual determination, the Court's inquiry goes no further than to ascertain whether the Commission's order is reasonable and supported by substantial evidence in the certified record.
I do not reach the issue of the legal duty, if any, on the Commission to make findings of fact since I do not agree that there were no findings of fact by the Commission. Excerpts from the memorandum prepared from the certified record under the Circuit Court's direction and attached as the Appendix to the majority opinion, explaining how the Commission arrived at the rate base, the rate of return, and a detailed finding of the increase granted by the Commission could hardly be interpreted as anything other than findings of fact. I feel that the action of the Trial Court in directing the Commission to file with the Court such a memorandum was entirely proper, and I would shudder to imagine that the Commission in any such case would issue its opinion and order in the absence of detailed findings of fact upon which its opinion and order is based.
In concluding that this memorandum (Appendix) constitutes findings of fact by the Commission, I am aware that only one member of the original two-member majority of the Commission physically filed the memorandum. But two members, comprising a majority of the Commission, had executed the order appealed from, and the filing of the memorandum pursuant to the Circuit Court's direction nonetheless constituted the findings of fact on which the Commission's order was based. The Circuit Court treated the memorandum as findings of fact, and I think properly so. | January 16, 1975 |
b24dfde4-661f-4def-9ee7-6f6d8fbaee8d | State v. Central of Georgia Railroad Co. | 309 So. 2d 452 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 452 (1975)
The STATE of Alabama
v.
CENTRAL OF GEORGIA RAILROAD COMPANY, a corporation, et al.
SC 687.
Supreme Court of Alabama.
February 27, 1975.
Jack W. Smith, Special Asst. Atty. Gen., Dothan, for appellant.
Lee & McInish, Merrill & Harrison, Dothan, for appellees.
MADDOX, Justice.
The State appeals from a condemnation award. Counsel for the State urges two points for reversal: (1) lay witnesses were allowed to testify as to value of the two condemned tracts, and (2) the verdict was excessive.
We have examined the record and find that each of the lay witnesses testified *453 that they were generally familiar with the property and each stated that he had an opinion as to the value of the parcels. A person is competent to give his opinion as to value if he has had an opportunity to form a correct opinion and testifies, in substance, that he has done so. State v. Woodham, 292 Ala. 363, 294 So. 2d 740 (1974). The jury weighs the value of the testimony of such witnesses. State v. Johnson, 268 Ala. 11, 104 So. 2d 915 (1958).
The State's argument that the verdict is excessive is not persuasive either. The verdict was within the range of the highest value placed on the land by the landowner's witnesses and the lowest value put thereon by witnesses for the State. See State of Alabama v. Wise Development Co. (decided February 27, 1975), 293 Ala. 671, 309 So. 2d 448.
In condemnation cases the conclusion of the trier of fact is to be given great weight. State v. Rigas, 282 Ala. 541, 213 So. 2d 386 (1968). In Rountree Farm Co. v. Morgan County, 249 Ala. 472, 31 So. 2d 346 (1947), this Court said:
The jury verdict is fairly supported by the evidence. State v. Woodham, supra. There is no reversible error in the record. We affirm.
Affirmed.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur. | February 27, 1975 |
34177383-2be9-4993-ba09-6d1d3c054587 | Mitchell v. State | 306 So. 2d 298 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 298 (1975)
In re Ocie Lee MITCHELL
v.
STATE of Alabama.
Ex parte Ocie Lee Mitchell.
SC 1105.
Supreme Court of Alabama.
January 16, 1975.
Fred Blanton, Birmingham, for petitioner.
None for respondent.
BLOODWORTH, Justice.
Petition of Ocie Lee Mitchell for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Ex Parte: Mitchell (Re: Mitchell v. State), 54 Ala.App. 203, 306 So. 2d 296.
Writ denied.
COLEMAN, HARWOOD, MADDOX and McCALL, JJ., concur. | January 16, 1975 |
63cb09d8-fa38-439b-ae26-e9faa8b2250f | Alabama Power Company v. Tatum | 306 So. 2d 251 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 251 (1975)
ALABAMA POWER COMPANY
v.
Jimmy Ray TATUM.
ALABAMA POWER COMPANY
v.
Clarence TATUM.
SC 632 and SC 946.
Supreme Court of Alabama.
January 9, 1975.
*252 Balch, Bingham, Baker, Hawthorne, Williams & Ward, Harold A. Bowron, Jr., and John P. Scott, Jr., Birmingham, for appellant.
C. Lee Reeves, Birmingham, for appellees.
JONES, Justice.
This is an appeal by the defendant, Alabama Power Company, from a judgment for the plaintiffs ($35,000 for personal injury to nine-year-old Jimmy Ray Tatum and $5,000 for the derivative action by his father, Clarence Tatum), who alleged that their injuries and damages proximately resulted from the negligence of defendant in maintaining its electrical power lines through a tree which the boy was climbing when he was electrically burned.
The Power Company claims that the trial Court erred in giving at Tatums' request the following instruction to the jury:
The Power Company contends that the given charge was an erroneous extension of its legal duty in that the charge imposes upon it the absolute duty to anticipate that persons may lawfully climb the tree, thus making it an insurer. Rather, the Power Company asserts, "the legal duty is to use reasonable care when it may be reasonably anticipated that persons may come in contact [with its electric lines]. Also, there is no duty to insulate or isolate electric lines which are so placed that it cannot be reasonably anticipated that someone might come into contact with them."
The Tatums counter with the contention that the giving of this instruction was without error for two reasons: First, because under the facts and circumstances of this case the absence of any reference to the law of reasonable anticipation was legally proper; second, even if such omission renders the charge misleading or incomplete, it was corrected or rendered harmless by other portions of the charge which included the reasonable anticipation rule.
We agree with appellees' second contention and hold that the trial Court did not err in giving this requested instruction. Since our holding is based on the conclusion that this charge was not an erroneous instruction in view of the entire charge given by the court, we will assume without deciding, in our further discussion of this point, that this charge, standing alone, constituted an abstract legal principle which was both incomplete and misleading for its failure to include the rule of reasonable anticipation.
Before proceeding with a statement of our reasons for so holding, a brief summary of the facts may be helpful:
Jimmy Ray Tatum suffered a serious electrical burn when he attempted to retrieve a ball from a hickory tree in the front yard of his parents' home. While climbing the tree, he came into contact with an uninsulated power line carrying 7200 volts.
Testimony showed that while this line had been inspected by the Power Company nine months before the accident, the tree had not been trimmed since 1966. (Their manual for operation and maintenance of these facilities showed that these wires were to be inspected annually.)
The testimony of Jimmy Ray's doctor showed that he suffered third degree burns on his left arm, right hand and thigh, all of which required extensive plastic surgery, and he had to have his right third finger amputated. In addition, he suffered a permanent functional disability in his right hand which would preclude his employment in certain jobs.
The sister-in-law of Clarence Tatum, who previously occupied the Tatum property, testified that she had previously informed the Power Company of wires running across her yard and through the trees. Specifically, she had reported the tree in question to a meter man at one time and had asked him about the limbs on the tree.
Clarence Tatum testified that on the day of the accident he could see where the wires had burned the bark from different parts of the limbs near the top of the tree; that on the day before the accident his children and other children were playing in and around the tree, though at that time he did not know that the wires ran through the tree.
We reemphasize the point that our decision as to whether the foregoing facts would support the giving of the requested instruction here in issue, apart from the entire charge, is unnecessary. Admittedly, this charge standing alone is the equivalent of a directed verdict for the plaintiffs on the issue of the defendant's duty to anticipate that someone might climb the tree and *254 its further duty to insulate the electric lines that passed through or near the tree. We agree with the Power Company that the fact that the legal principle contained in this charge is an excerpt from one or more of our judicial opinions[1] does not of itself make such excerpt appropriate for instructions to juries. Mobile Infirmary v. Eberlein, 270 Ala. 360, 119 So. 2d 8 (1960). See also Hatcher v. Camp, 279 Ala. 475, 187 So. 2d 232 (1966); Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228 (1935).
We further agree with the Power Company's insistence that the legal propositions stated in this charge are to be qualified by the nearness or remoteness of the tree with respect to human beings or perhaps other reasons that make it improbable that a person will climb the tree and that these circumstances are normally questions of fact for the jury.[2] When the subject charge is reviewed as a single unit of instruction on the law of the case, however, we are clear to the conclusion that the case was not submitted to the jury absent the rule of reasonable anticipation; but, rather, a fair and reasonable interpretation of the charge as a whole left to the jury's determination the issue of whether the Power Company had discharged its legal duty to use reasonable care under the circumstances to reasonably anticipate that the minor plaintiff might be expected to climb the tree here involved.
The Alabama Rules of Civil Procedure became effective July 3, 1973, and this trial commenced July 10, 1973. Rule 51 (Instructions to Jury: Objection) not only changed substantially the Alabama practice but it differs in several particulars with, and in our opinion is an improvement of, its federal counterpart. It provides that requests to instruct the jury, with respect to such charges marked "Given", shall be read without reference to which party filed the request; that such written instructions shall not go into the jury room; and, both as to "given" and "refused" charges, grounds for objection must be assigned before the jury retires, but out of the hearing of the jury.
As the Committee Comments to the Rules amply demonstrate, the development of the body of case law establishing the test for the giving or refusal of written requested charges was influenced, at least in part, by the practice then prevailing as to written requested charges. While the trial court nominally adopted the "given" written requested charges as its own and instructed the jury to consider the same along with its oral charge, this theory was diminished in fact by the practice of singling out the party at whose request the charge was given, permitting the written charge to be taken into the jury room, and the placing of the trial court at the disadvantage of the automatic exception rule. Because of this practice, the tendency of which was to permit the jury to give undue emphasis to a "given" written requested charge, the appellate test of its propriety, at least to some degree, treated such charge as an entity apart from the court's oral charge.
Whatever result might have here obtained under the old practice we need not decide. We look, instead, to the new practice prescribed under Rule 51, A.R.C. P., which treats the entire charge as a single entity. When testing the validity of any of its parts, including "given" written requested charges, we must now look to the whole of the court's charge. See Lyons, Alabama Practice: Rules of Civil Procedure Annotated, Vol. 2, pp. 234-237.
The reality of having the jury instructed on the law of the case by the trial judge, with equal emphasis as to both the *255 oral and any "given" written requested charge, has been given operative effect by Rule 51. Stated otherwise, we will review alleged error in the giving of a written requested charge in the same context as if such charge were a part of the oral charge; and, as we have stated many times, where the objected to portion of an oral charge is misleading, abstract, or incomplete, we will adjudge error to reverse only if we conclude that prejudice resulted from the giving of such charge in light of the entire instruction. Wren v. Blackburn, 293 Ala. 393, 304 So. 2d 187 [1974].
We observe initially that the trial Court, here, scrupulously followed the procedure outlined in Rule 51. He made no reference to which party requested the various "given" instructions and withheld their physical possession from the jury. He, also, in furtherance of the spirit of this rule, incorporated these instructions in the appropriate part of the Court's full charge in a manner to preserve its symmetrya practice which we commend and strongly encourage.
Because this is the first case to reach this Court directly involving Rule 51,[3] and because of its significance to the dispositive issue before us, we set out in some detail the structure and substance of the trial Court's charge. After addressing the jury on such preliminary matters as alignment and definition of the parties, and after stating the respective claims and defenses, the Court defined in more or less classical language the law of negligence and contributory negligence. He thereupon interspersed several written instructions requested by each of the parties relating to the defense of contributory negligence as affected by the respective ages of the plaintiffs. He then proceeded orally to instruct on the burden of proof, after which he made the following statement and gave the following written requested instructions:
The Court then concluded his charge, instructing the jury orally on the law of damages, forms of verdicts, etc.
This Court holds that the giving of the subject instruction, when taken together and in conjunction with the whole of the Court's charge, does not constitute reversible error. We believe a fair interpretation of the entire charge dictates a conclusion that the trial Court did not instruct the jury to find against the Power Company absent a consideration of the reasonable anticipation rule.
The Power Company also contends that the trial Court erred in overruling its objection to the introduction in evidence of the Tatums' Exhibits No. 9 and 10, both of which were produced by the Power Company in response to the Tatums' motion for production of documents. The two documents, the subject matter of this alleged error, outlined the Power Company's procedure for the inspection and maintenance of its transmission lines.
The objection interposed to the admission of these exhibits was:
Consistent with the stated grounds of objection, the Power Company contends *258 that the trial Court erred in admitting these documents in two particulars: first, no predicate as to authenticity or genuineness of the documents had been laid; and, second, the documents, which dealt with inspection procedures for transmission lines rather than distribution lines of the type with which Jimmy Ray came into contact, bore no relevancy to any material issue in the case.
We find no error to reverse on the admission of the challenged documents.
The Power Company argues "that in order for a business document to be admitted into evidence, a proper predicate and foundation for the introduction of that document must be laid." Meriwether v. Crown Investment Corporation, 289 Ala. 504, 268 So. 2d 780 (1972); United Security Life Insurance Company v. Birmingham Trust National Bank, 282 Ala. 295, 211 So. 2d 139 (1968); Powell v. Atlantic Coast Line Railroad Co., 274 Ala. 533, 150 So. 2d 179 (1962); Jenkins v. Avery, 257 Ala. 387, 59 So. 2d 671 (1952). See also A.R.C.P. (44 [h]).
The general rule regarding the introduction of documentary evidence set out in 88 C.J.S. Trial § 62, at 168-169, is relied upon, which includes the language "... and, if objected to, its genuineness [must be] established by testimony...".
We have no quarrel with this proposition or the authority cited therefor; but this rule does not relate to authentication of documents produced by the objecting party in compliance with a motion to produce. That element of the required predicate as to genuineness of documents has been satisfied by the objecting party's compliance with the motion to produce. Otherwise stated, for the Power Company to question the genuineness of its own documents is to deny its faithful compliance with the motion to produce. It is an established rule of evidence in this state that a party is relieved from the necessity of proving the authenticity of a document which he offers in evidence when such document is produced by the adverse party on notice or motion, and the party producing the document is a party to the instrument or claims a beneficial interest thereunder. Woodstock Iron Co. v. Reed, 84 Ala. 493, 4 So. 369 (1887); Ward v. Reynolds, 32 Ala. 384 (1858).
While the authenticity of the document requirement has been met by the very nature of its discovery (here, by motion to produce), we agree with the Power Company that the mere production of a document does not of itself supply the relevancy requirement, which must also be met as a condition to its admissibility. Instead, the court must look to the substance of the document to test its admissibility when challenged on the ground of relevancy.
The question of whether a particular piece of evidence is relevant is one addressed largely to the discretion of the trial court (Bradley v. Jones, 282 Ala. 331, 211 So. 2d 465 (1968); Occidental Life Ins. Co. of California v. Nichols, 266 Ala. 521, 97 So. 2d 879 (1957); Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216 (1923)); and we have been unable to ascertain any abuse of this discretion in the present situation.
It is true that Exhibits 9 and 10 show the inspection procedure for a transmission line and that the line in question was a distribution line which had different inspection procedures; but all of this was made perfectly clear to the jury, especially in light of Mr. Nelson's (Power Company Superintendent) testimony which distinguished the two types of lines. Additionally, since other admitted exhibits set forth the inspection procedures for distribution lines, the relevancy of Exhibits 9 and 10 was amply demonstrated in the comparison which the jury was thus able to make of the two inspection procedures.
Affirmed.
*259 HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, MADDOX and FAULKNER, JJ., concur.
COLEMAN, J., dissents in part.
McCALL, J., not sitting.
COLEMAN, Justice (dissenting in part):
I agree in the result that the trial court did not err in giving the requested charge first set out in the opinion of the court.
I do not agree that plaintiffs' Exhibits 9 and 10 were properly admitted into evidence. The exhibits relate to inspection of transmission lines. The lines here involved were not transmission lines and Exhibits 9 and 10 are irrelevant. Accordingly, I dissent.
[1] Blackwell v. Alabama Power Company, 275 Ala. 123, 153 So. 2d 670 (1963); Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979 (1917).
[2] See Alabama Power Company v. Taylor, 293 Ala 484, 306 So. 2d 236 [1975].
[3] See City of Birmingham v. Kelly, 52 Ala. App. 385, 293 So. 2d 301 (1974).
[4] We observe in passing that the omission of this introductory statement would have been entirely proper. | January 9, 1975 |
0abfbcb0-f76e-467d-8898-e0ae7a8bb558 | Employers Insurance Co. of Alabama v. Lewallen | 307 So. 2d 689 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 689 (1975)
EMPLOYERS INSURANCE CO. OF ALABAMA, a corp.
v.
Warren LEWALLEN, Individually, et al.
SC 863.
Supreme Court of Alabama.
February 6, 1975.
Dunn, Porterfield, McDowell, Scholl & Clark, Birmingham, for appellant.
Warren B. Lightfoot, Birmingham, for appellee William L. Hinds.
Louis A. Mezrano, Birmingham, for appellee John Huss.
FAULKNER, Justice.
This case involves the scope of coverage under a standard workmen's compensation and employer's liability policy. On June 21, 1972, the appellant, Employers Insurance Co., issued a policy to "Warren Lewallen d/b/a Omar Construction Company." At that time, Omar was involved in the construction of the Nob Hill Apartments in Birmingham. At the same time, Lewallen was operating another company involved in the construction of the Vestavia Knolls Apartments. The latter company was Dome Construction Company and it had been formed specifically for the Vestavia *690 Knolls project. Lewallen was the sole proprietor of both companies and exercised all organizational and supervisory powers. All of the employees worked for Lewallen, but for the purposes of accounting, the two companies were kept separate. Dome employees were paid through Dome, and those working on the Nob Hill Apartments were paid through Omar.
In September, 1972, Lewallen decided to incorporate his entire construction business under the name of Dome Contracting Company, Inc. The appropriate papers were drafted and signed by the 29th of September, but the articles of incorporation were not filed in the office of the probate judge until October 25, 1972. At this time, Lewallen was not listed as an officer or director of the corporation. The stock was issued to the three incorporators, but all save for one share was immediately endorsed and delivered to Lewallen.
Appellee, John Huss, was first employed by Lewallen in 1971. He began working as a carpenter's assistant on the Nob Hill Apartment job, ostensibly as an employee of Omar. In July or August of 1972 Huss was transferred to the Vestavia Knolls site and received his pay through Dome. On October 12, 1972, Huss sustained an injury on the job which resulted in the loss of vision in one eye. Huss filed a workmen's compensation suit against the other appellees here. This suit was temporarily enjoined by an action for declaratory judgment brought by Employers. Employers denied any liability under their policy with Lewallen because of the fact Huss was not employed by Warren Lewallen d/b/a Omar Construction Co. when the injury occurred. This appeal followed a decree adverse to the insurance company rendered in the Circuit Court of the Tenth Judicial Circuit.
Employers argues that the crucial issue on this appeal is for whom was Huss working on the date of injury. If he was not then employed by Warren Lewallen d/b/a Omar Construction Co., the insurer contends that coverage was rightfully denied. It is pointed out that Huss was not working for Lewallen per se on the date of the injury, but for a de facto corporation or a partnership composed of Lewallen's attorney, accountant, and an employee of the accountant. This latter position seems untenable since there was never any intention on the part of these individuals to form a partnership. In any event, we do not find the question of whether or not Huss was then employed by a de facto corporation named Dome Contracting Co., Inc. to be dispositive of the case.
According to testimony before the trial court, Lewallen informed Employers on a few occasions that he intended to incorporate and wanted to do what was necessary to provide continuing coverage. On one occasion he was told by the underwriter that all would be taken care of. Ostensibly this meant that a simple endorsement on the policy would solve the difficulty, because that was all that was ultimately done on November 3, 1972. Thus, there was notice to the company of the impending change of form, and no objection was entered. Through this entire period, Employers charged and collected premiums from Lewallen, based on the monthly size of his total payroll. These premiums were calculated from the payroll of Omar as well as Dome, and at all times pertinent, the pay of John Huss was used to arrive at the final figure. Yet now, Employers would argue that during this time they only intended to cover Omar employees, while all the time collecting premiums based on the salaries of Dome's workers additionally. As late as one month before the accident, September 14, 1972, Employers accepted payment of a premium written on the account of Dome Construction Co. (not the corporation). At one point Lewallen was told that the Huss injury would be compensated, but later the company reversed itself on this and said they would not admit liability because Huss was not working for Omar.
*691 There is a general rule of estoppel extant in the field of insurance law. This rule prohibits an insurer in employer's liability, who collects premiums based upon a payroll listing, from denying liability as to an employee who was included therein. See Couch on Insurance 2d, § 44:126 (1963 Ed.). In White v. Great American Insurance Co. of New York, 343 F. Supp. 1112 (M.D.Ala.1972) a federal district court held that an insurance company which had collected premiums on policies associated with workmen's compensation and general liability of an employer was in "... no position to deny its liability on both aspects of its insurance." In Moore v. Adams Electric Company, 264 N.C. 667, 142 S.E.2d 659 (1965), an insurer tried to deny its liability because of a provision in the policy which stated that an assignment of the interest under the policy would not be binding on the company unless its endorsement appeared thereon. Mr. Adams sold his business to a corporate entity that he himself created. The North Carolina court concluded that this would not impose liability on the insurer for injuries sustained by the employees of the new corporation. However, the insurer had knowledge of the transfer and continued to charge and collect premiums from the corporation. This was considered as a waiver of any right to object to the assignment. The Oklahoma case of Young v. Holdenville, 384 P.2d 905 (Okl.1963) was even more explicit on this issue. There it was held that a city's compensation carrier was estopped from denying liability for injuries suffered by the city treasurer, if her salary was in fact included in the calculation of the premium. The case was remanded for such a determination in light of the fact she was an elected official. The situation is best stated by a quotation from Black v. Swetnick, 281 App.Div. 997, 120 N.Y.S.2d 663 (1953):
There was a good deal of testimony in this case over what transpired during meetings and conversations between Lewallen, the insurance company, its agents, and others. The trial court heard all of this evidence orally and found that Employers fully intended to extend coverage to Warren Lewallen and each of his business entities, without regard to formality. We find ourselves unable to disagree with this conclusion. It is a long standing rule in this jurisdiction that where the evidence is heard orally, the trial court's decree is clothed with a presumption of correctness and it will not be disturbed unless we find it plainly erroneous or manifestly unjust. Morris v. Morris, 290 Ala. 41, 273 So. 2d 203 (1973). In light of this, and the fact that Employers collected premiums based in part upon Huss' monthly compensation, we are bound to conclude that the insurance company is estopped from denying its liability in this case. Courts of law have traditionally done what has been referred to as "piercing the corporate veil." The circuit court's final decree uses this terminology. This case is somewhat different in that Employers is trying to shroud Lewallen with a corporate veil in an effort to escape its possible liability. However, all of its actions belie that result.
Affirmed.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | February 6, 1975 |
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