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0a5bde88-0069-45eb-bfa0-3c5308e51768 | Swift v. Esdale | 306 So. 2d 268 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 268 (1975)
Julian SWIFT, as Clerk of the Tenth Judicial Circuit of Alabama
v.
James ESDALE and Willie Esdale.
SC 623.
Supreme Court of Alabama.
January 16, 1975.
*269 Earl C. Morgan, Dist. Atty., Tenth Jud. Circuit of Ala., Birmingham, for appellant.
George S. Brown, Birmingham, for appellees.
PER CURIAM.
Appellees filed a petition for declaratory judgment in the Circuit Court of the Tenth Judicial Circuit, sitting in equity, asking that appellant, as Clerk of the Circuit Court of the Tenth Judicial Circuit, be made a party respondent; and that, upon final hearing, the court render a judgment declaring appellees legally absolved from their obligation as judgment debtors and discharging them as sureties. Appellant demurred to this petition and his demurrer was overruled. Appellant then filed an answer, which he subsequently amended. The cause came on to be heard; and the court decreed that petitioners be relieved *270 from any liability to pay any part of the final forfeiture rendered against them by the Criminal Division on September 15, 1970. Appellant's application for rehearing was denied on July 31, 1973. From this judgment of the trial court this appeal was taken.
Appellees, James and Willie Esdale, were doing business as professional bail bondsmen in Jefferson County, Alabama. On July 21, 1969, appellees executed an appearance bond in the amount of $1,000.00, to secure the appearance of James Lee Jones, who was charged with the offense of grand larceny. When Jones failed to appear in court for trial on September 26, 1969, this bond was forfeited. On September 15, 1970, the forfeiture was made final. On December 4, 1970, appellees filed a motion to set aside this forfeiture, which motion was heard and denied by the court on April 2, 1971. Subsequently, appellees learned that Jones was in jail in New Orleans, Louisiana. Exercising their rights as bail, they then went to New Orleans, got Jones, and brought him back to Alabama, placing him in the custody of the sheriff of Jefferson County. Since no execution had ever issued on the judgment of forfeiture, appellees at this point brought the present action, asking for a declaratory judgment that they be legally absolved from their obligation as judgment debtors, and discharging them as sureties. The court below chose to treat this petition as a bill in the nature of a bill of review. It was held that appellees should be exonerated from any liability under the bail bond, but that they should be taxed with costs. From this judgment the appellant has taken this appeal.
Before addressing ourselves to the merits of this appeal, we must first consider several technical arguments raised in the brief of appellees. Appellees point out that nowhere in the appellant's brief is there any reference to any of appellant's assignments of error. We have held that a brief is insufficient which fails to make specific application to the ruling assigned as error. Zanaty v. Hagerty, 280 Ala. 232, 191 So. 2d 516 (1966). And where no assignments of error are mentioned in brief, they must be considered to be argued in bulk; and if any one of them is without merit, the court will not consider the rest of them. Piper Ice Cream Co. v. Midwest Dairy Products Corp., 279 Ala. 471, 187 So. 2d 228 (1966). However, under newly adopted Supreme Court Rule 52, no defect in a brief will be grounds for affirmance unless the opposing party, by motion, calls such defect to the attention of the court and the adverse party. Since this was not done here, we cannot affirm this case on the basis that appellant's brief is defective.
Appellant argues that a bill in the nature of a bill of review is not a proper device to use in remitting a forfeited bail bond. It should be noted that, in the past, our courts have recognized a technical distinction between a bill of review and a bill in the nature of a bill of review. Cunningham v. Wood, 224 Ala. 288, 140 So. 351 (1932). However, under the new Alabama Rules of Civil Procedure, it is no longer necessary to make this distinction. A.R.C.P. 60(b) retains the substance of all the devices heretofore used to attack a final judgment, including bills of review and bills in the nature of bills of review, but destroys the artificial boundaries between them. See comment to Rule 60. In the instant case, the facts relied on came into being after final judgment and after the time for appeal had expired. We have previously held that facts that come into being after the former decree was rendered, and at a time when they could not be used as a basis for a new trial, can be brought up by a bill of review. Gardner v. Gardner, 250 Ala. 251, 34 So. 2d 157 (1948); Louisville and Nashville R. Co. v. Mauter, 203 Ala. 237, 82 So. 487 (1919).
Appellant argues, however, that appellees should either have taken an appeal from the final judgment of forfeiture or applied to the Board of Pardons and Paroles for a remission of the forfeiture. *271 The time for taking an appeal in this case had already expired when appellees placed Jones in the custody of the sheriff. An appeal would therefore have been useless to appellees. As for appellant's contention that an application to the Board of Pardons and Paroles is the exclusive remedy for remission of a final forfeiture of a bail bond, he only cites as authority Code of Alabama, Title 42, § 16, and a Law Review article, Hill, "Bail and Recognizance in Alabama: Some Suggested Reforms," 21 Alabama Law Review 601, 606 (1969). This article does indeed support this contention; but as authority, it merely cites us back to Title 42, § 16, and appellant admits that he can find no other authority for this argument. Title 42, § 16 states that the Board of Pardons and Paroles shall have the power to remit fines and forfeitures, but it nowhere says that this is the exclusive remedy for doing so. We do not think that this section of the Code alone can support the proposition sought to be sustained by appellant.
There is some authority, however, for the proposition that a court cannot constitutionally remit fines and forfeitures. Constitution of 1901, § 124, states that "The governor shall have power to remit fines and forfeitures ..." This was interpreted to mean that the remission of fines and forfeitures was the exclusive domain of the executive branch and that neither the judiciary nor the legislature could constitutionally remit fines and forfeitures. Haley v. Clark, 26 Ala. 439 (1855); State v. Stone, 224 Ala. 234, 139 So. 328 (1932). See, also, Constitution of 1901, § 43. In Montgomery v. State, 231 Ala. 1, 163 So. 365, 101 A.L.R. 1394 (1935), it was held that § 124 also gave the executive branch the exclusive power to suspend imposition of sentences and to place defendants on probation. Subsequently, Amendment 38 was added to our Constitution. This amendment was designed to take the place of § 124; and we set it out here in full:
It was later held that the purpose of Amendment 38 was to grant the legislature the power to authorize the courts to exercise the probation power; and it was not intended to do more than this. In re Upshaw, 247 Ala. 221, 23 So. 2d 861 (1945).
The question now is whether, in view of § 124 and Amendment 38, the power to remit fines and forfeitures can constitutionally be exercised by the courts. There have been no cases decided since the passage of Amendment 38 that address themselves to this problem.
Cases on this point from other jurisdictions are sparse. The only two we have found upheld the action of the lower court in remitting a forfeited bail bond; one on the ground that this was merely the exercise of judicial discretion, Commonwealth v. Thornton, 58 Ky. 380 (1858); and the other on the ground that a court always had authority to set aside a judgment wrongfully entered, Walker v. State, 103 S.W.2d 404 (Tex.Civ.App.1937).
We are of the opinion that the court below acted constitutionally. Amendment 38 took the power to remit fines and forfeiures from the executive branch and gave it to the legislature. The legislature, in turn, gave this power to the Board of Pardons and Paroles, Title 42, § 16, and also gave it to the courts in certain counties of this state, Title 15, § 217(1), which recites:
Under this latter statute the courts in Jefferson County have jurisdiction to remit bail bonds. There is no time limitation in this statute and presumably the courts in such counties can review a final judgment of forfeiture whenever facts arise which tend to mitigate the responsibility of the sureties. It appears from appellees' complaint that on December 4, 1970, they filed a motion to set aside the forfeiture and that this motion was denied on April 2, 1971. The appellant argues that the court heard and denied this motion under the authority of Title 15, § 217(1). There is nothing in the record to back up this assertion and, even if there was, there is nothing in the statute to indicate that appellees could not go into court again under § 217(1) after they returned Jones to the sheriff.
Appellees commenced this action as a proceeding for a declaratory judgment; and it was treated by the court below as a bill in the nature of a bill of review. In most counties in this state, neither of these devices could be used by the court in remitting a final forfeiture of a bail bond; because the organic law has placed this power in the hands of the legislature. However, the legislature has delegated this power to the courts in Jefferson County by virtue of § 217(1) and, therefore, the court below had the power to remit the forfeiture of bail. It makes no difference how appellees styled their complaint, or how the court chose to treat it; it was in substance merely a proceeding to remit a bail bond after final forfeiture; and, as we have pointed out, the courts in Jefferson County have the power to do this under Title 15, § 217(1).
Having decided that the court below had the jurisdiction and authority to remit the forfeiture of bail, we must now decide whether it was correct in so doing. Specifically, the question is this: Is it grounds for a remission of forfeiture under Title 15, § 217(1), that the principal was incarcerated in another state at the time he was supposed to have appeared in court, but that he has now been returned and is in the custody of the sheriff?
The fact that Jones was incarcerated in another state will not relieve appellees of their obligation as sureties on the bail bond. Cain v. State, 55 Ala. 170 (1876). Of course, the sureties under a bail bond can always relieve themselves from the obligation of the bond by the surrender of the principal at any time before the forfeiture is made final. Bearden v. State, 89 Ala. 21, 7 So. 755 (1889). In the instant case, however, the forfeiture was made final months before appellees surrendered Jones to the sheriff. In Bearden, supra, this court said:
No subsequent case has answered this question. A bail bond is a contract requiring the principal to appear in court at a certain time, and the sureties are not, *273 as a matter of right, released from their obligations under a forfeited bail bond by the surrender of the principal after final judgment. 8 C.J.S. Bail § 92. However, the object of bail is not revenue, but to secure the presence of the principal, Beddow v. State, 259 Ala. 651, 68 So. 2d 503 (1953); and where, as here, the sureties were found to be diligent in trying to locate him, we do not think that the lower court was incorrect in ordering remission of the forfeited bond.
The judgment of the lower court, therefore, must be affirmed.
Affirmed.
All the Justices concur. | January 16, 1975 |
ba6b373a-8e44-4171-a46f-3640310e42b0 | Taylor v. Brownell-O'Hear Pontiac Company | 91 So. 2d 828 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 828 (1956)
Lewell TAYLOR, pro ami Leofice Taylor,
v.
BROWNELL-O'HEAR PONTIAC COMPANY.
6 Div. 769.
Supreme Court of Alabama.
December 21, 1956.
Rehearing Denied January 14, 1957.
Hal W. Howard and D. G. Ewing, Birmingham, for appellant.
London & Yancey and James E. Clark, Birmingham, for appellee.
SPANN, Justice.
This is a suit for damages wherein it is alleged that Lewell Taylor, a minor, sustained personal injuries as a result of the negligent operation of an automobile by an agent of the defendant, Brownell-O'Hear Pontiac Company. A jury trial resulted in a verdict and judgment for the plaintiff for $7,500. The defendant filed a motion for a new trial. From a ruling of the court granting the motion and ordering a new trial, this appeal is prosecuted.
The trial judge rested his order granting the new trial solely upon the improper argument of counsel for the plaintiff in his closing argument to the jury. The argument involved in ground 57, being one of the grounds upon which the motion was granted, tended to impress upon the jury the ability of the defendant to pay any judgment the jury might render in the case. The pertinent portion of such argument was in the following language:
*829 The impropriety of such argument and the highly prejudicial effect of same upon the minds of the jury cannot be seriously doubted. Such remarks coming from eminent counsel and sustained by the ruling of the trial court were, we think, well calculated to influence the amount of the jury's verdict.
There was a similar problem before this court in the case of American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507. In that case, counsel for the plaintiff in his closing argument to the jury stated, in effect, that the American Express Company, the defendant, would still be in business regardless of whatever verdict the jury might render. There, as here, the defendant objected to such argument, the court overruled the objection and the defendant duly excepted. In that case, we held that the question of the improper argument of counsel was thus properly presented for our review; and further held that the action of the trial court in overruling the objection to such argument was reversible error.
Ground 59, another ground upon which the motion was granted, involved the argument of counsel for plaintiff in his closing argument to the jury in which he stated:
Defendant objected, the objection was overruled and an exception reserved, thus properly preserving the matter for our review.
Counsel's preceding remarks had referred to claim agents in the following language:
While we are not willing to say that the clear import of counsel's remarks was to inject insurance in the case, we think such argument was highly improper and prejudicial and that it could have suggested to the minds of the jury that someone other than the defendant would pay any verdict the jury might render.
There was a conflict in the evidence as to the facts and circumstances surrounding the accident as well as the extent of plaintiff's injuries.
We feel constrained to hold that such argument probably influenced the jury's verdict and that the action of the trial court in overruling defendant's objection thereto was sufficient error to support the court's order granting a new trial.
The trial judge was present and was in a position to observe the manner of counsel and the countenance and expressions of the jury and the things complained of which transpired. In other words, the trial court, in acting upon the motion, was in possession of data and circumstances which are not and could not be presented by the record to this court. For this reason, we cannot disturb the conclusion reached unless we can say that it affirmatively appears from the great weight of the evidence and the surrounding facts and circumstances that this conduct did not influence the jury in the rendition of the verdict either as to result or amount. Thames v. Louisville & N. R. Co., 208 Ala. 255, 94 So. 487.
It has long been a rule of law in this jurisdiction that the granting or refusing of a motion for a new trial is a matter resting largely in the discretion of the trial court, and its order granting a new trial *830 will not be disturbed on appeal unless some legal right of the appellant has been abused. There is a presumption that the court's discretion was properly exercised. The lower court will not be reversed unless the record plainly and palpably shows that the trial court was in error. German-American Wholesale Optical Co. v. Rosen, 233 Ala. 105, 170 So. 211; Parker v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504; Lassetter v. King, 33 Ala.App. 204, 31 So. 2d 586, certiorari denied 249 Ala. 422, 31 So. 2d 588.
We are clear to the conclusion that grounds 57 and 59 necessitate an affirmance of the cause without a consideration of other grounds.
It follows, therefore, that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | December 21, 1956 |
ae5e39c8-61a1-4485-9a79-058df9958faa | Hurst v. State | 307 So. 2d 73 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 73 (1975)
In re Jimmy Ray HURST
v.
STATE.
Ex parte Jimmy Ray Hurst.
SC 1118.
Supreme Court of Alabama.
January 23, 1975.
Bolton, Sizemore & Rumsey, Sylacauga, for petitioner.
None for the State.
McCALL, Justice.
Petition of Jimmy Ray Hurst for writ of certiorari to the Court of Criminal Appeals to review and revise judgment and decision of that court in Hurst v. State, 54 Ala. App. 254, 307 So. 2d 62, decided November 12, 1974, 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 *74 statements of law made in the opinion of this case in the Court of Criminal Appeals. See Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Opelika Coca-Cola Bottling Co., Inc. v. Johnson, 286 Ala. 460, 241 So. 2d 331; Cooper v. State, 287 Ala. 728, 252 So. 2d 108, and Winn-Dixie Montgomery, Inc. v. Brindley, 289 Ala. 755, 266 So. 2d 150.
Writ denied.
HEFLIN, C.J., and COLEMAN, HARWOOD, BLOODWORTH, MADDOX and FAULKNER, JJ., concur. | January 23, 1975 |
f07546fd-d2b8-4405-bb4c-15a7c6b8ebab | Roynica v. State | 309 So. 2d 485 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 485 (1975)
In re Philip Robert ROYNICA
v.
STATE of Alabama.
Ex parte Philip Robert Roynica.
SC 1063.
Supreme Court of Alabama.
February 20, 1975.
Rehearing Denied March 27, 1975.
John S. Glenn, Opelika, for petitioner.
None for the State.
MERRILL, Justice.
Petition of Philip Robert Roynica for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Roynica v. State, 54 Ala.App. 436, 309 So. 2d 475.
Writ denied.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur. | February 20, 1975 |
59f2bb17-866c-4eba-bcd4-3369b2777a27 | State v. Holloway | 307 So. 2d 13 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 13 (1975)
STATE of Alabama
v.
R. R. HOLLOWAY et al.
SC 891.
Supreme Court of Alabama.
January 16, 1975.
*14 C. R. D. Burns, Jr., Sp. Asst. Atty. Gen., Gadsden, for the state, appellant.
Simmons, Torbert & Cardwell, Gadsden, for appellees.
BLOODWORTH, Justice.
The State of Alabama appeals from a judgment awarding damages of $30,000 to landowners in a condemnation proceeding. Judgment was in accordance with a jury verdict. We affirm.
Three assignments of error are argued in brief.
The first assignment of error charges that the trial court erred in sustaining landowners' objection to the following question propounded by the State to one of its own expert witnesses:
Immediately after the trial court sustained the objection, the following occurred:
It is self-evident that error, if any, in sustaining objection when the question was first posed was not prejudicial because the same evidence was admitted thereafter without objection.
Assignment of Error Two arose when, over objection by the State, the trial court admitted in evidence an unrecorded subdivision map of the condemned land. The record reflects the following, viz.:
The stated grounds of objection, argued on this appeal, are that the map was not recorded and not authenticated by the surveyor. It is contended that it is inadmissible, being hearsay evidence, not within any exception thereto, citing Tit. 56, § 7, Code of Alabama 1940 (Recompiled 1958) and Golden v. Rollins, 266 Ala. 640, 98 So. 2d 409 (1958).
*16 Tit. 56, § 7, supra, provides:
In construing this statute, this Court said in Golden v. Rollins, supra:
It is important, however, to note that Golden, supra, was a suit in ejectment with suggestion of a boundary line dispute and the map in that case was offered to establish, with detailed accuracy, the boundary line between the parties. On the other hand, the instant case is a condemnation proceeding and the map in question was not introduced for the purpose of accurately establishing a boundary line. The landowner simply testified that he commissioned the making of the map and that it accurately depicted the general layout of his property.
Thus, we hold that Tit. 56, § 7, supra, and Golden, supra, are inapposite and that the map was not inadmissible for the grounds stated in the objection.
Moreover, the case of Cooper v. State, 274 Ala. 683, 151 So. 2d 399 (1963), is a condemnation case and is directly in point. There, this Court held:
The case of James v. Mizell, 289 Ala. 84, 265 So. 2d 866 (1972), is to like effect:
The trial court did not err in admitting the map into evidence.
In Assignment of Error Three, the trial court is charged with error when, over the objection of the State, a witness for the landowner was permitted to answer the following question:
The only ground of objection stated was:
Tit. 7, § 367, Code of Alabama 1940 (Recompiled 1958) provides as follows:
See also State v. Self, 293 Ala. 541, 307 So. 2d 11 (1975); State v. Woodham, 292 Ala. 363, 294 So. 2d 740 (1974).
By the express terms of the statute the stated ground of objection is not well taken. When a specific ground of objection is stated, all other unstated grounds of objection are deemed waived. Adams v. State, 291 Ala. 224, 279 So. 2d 488 (1973).
The judgment of the trial court is affirmed.
Affirmed.
HARWOOD, MADDOX, McCALL and FAULKNER, JJ., concur. | January 16, 1975 |
f59189f1-b8da-40cf-9560-588cd8e64c90 | INTERNATIONAL UNION, ETC. v. Palmer | 104 So. 2d 691 | N/A | Alabama | Alabama Supreme Court | 104 So. 2d 691 (1956)
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT and AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), et al.
v.
N. A. PALMER.
8 Div. 848.
Supreme Court of Alabama.
November 15, 1956.
Rehearing Denied June 5, 1958.
Further Rehearing Denied August 28, 1958.
*693 Adair & Goldthwaite, Thos. S. Adair and J. R. Goldthwaite, Jr., Atlanta, Ga., Harold A. Cranefield, Detroit, Mich., and Sherman B. Powell, Decatur, for appellants.
Julian Harris and Norman W. Harris, Decatur, for appellee.
SIMPSON, Justice.
Action for damages by N. A. Palmer against the defendant Union and one Michael Volk. The complaint consists of two counts. Count 1 claims damages of the defendants for unlawfully and maliciously preventing plaintiff from engaging in his employment. Count 2 is similar to Count 1, except that it alleges a conspiracy between the defendants in connection with the same matter alleged in Count 1. Before trial the defendants filed a motion for change of venue which was denied. The case was then tried by a jury which returned a verdict for the plaintiff for $18,450, and the defendants bring this appeal.
The defendants, appellants, assign as error the ruling of the court denying their motion for a change of venue. The plaintiff, appellee, argues that the denial of a motion for change of venue in a civil action is not such a ruling of the trial court that may be reviewed by this court on an appeal from final judgment in the cause; that the proper method of review in a civil action is by a writ of mandamus prior to trial. We regard the argument of appellee as well taken.
In criminal actions the refusal of an application for change of venue may be reviewed on appeal after final judgment under authority of Code of 1940, Title 15, § 267. But the change of venue statute for civil actions does not provide for such a review. Code of 1940, Title 7, § 65.
The theory seems to be that the refusal of the trial court to grant a motion for change of venue is not reviewable on appeal from final judgment in a civil case, because a change of venue in a civil case is at the sound discretion of the trial court. Ex parte Morrow, 259 Ala. 250, 66 So. 2d 130; Ex parte State ex rel. Ingram Land Co., 208 Ala. 28, 93 So. 820; and such rulings as a rule are not subject to review on appeal from a final judgment in the cause. Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561; National Surety Co. v. O'Connell, 16 Ala.App. 654, 81 So. 146, certiorari denied 202 Ala. 684, 81 So. 660. Upon a proper showing of abused discretion of the trial court in denying a motion for change of venue in a civil action, a writ of mandamus is available to compel a proper exercise thereof. Ex parte Morrow, supra; Ex parte State ex rel. Ingram Land Co., supra.
Justice McClellan in an early case, Kansas City, M. & B. R. Co. v. Sanders, 98 Ala. 293, 299, 13 So. 57, 59, stated that this court could not review on appeal the action of the trial court in denying a change of venue in a civil action in the following language:
"Under statutes of force prior to the act of February 17, 1885, (Code, § 4485 [now Alabama Code 1940, Tit. 15, § 267],) it was many times decided that the action of a nisi prius court, denying an application for a change of venue, was not revisable on appeal to this court. * * * The act referred to has no bearing upon civil cases whatever. Its sole reference is to cases involving the trial of an indictable offense, and with respect to these alone it provides that the refusal of an application for a change of venue may be reviewed and revised on appeal. This leaves the rule which obtained before the statute as to all cases still applicable to all civil cases; and we will not review the action of the trial court, in this case, in denial *694 of the defendant's application for a change of venue."
We know of no case and none has been cited to us contra to the rule in the Sanders case. It is true that we have held on appeal in a civil case that the trial court properly refused a motion for change of venue. Hattemer v. Davis, 206 Ala. 613, 91 So. 321. But the point, that the denial of a motion for change of venue could not be considered on appeal was not raised in the Davis case.
The appellant argues that the rule in the Sanders case, supra, was changed by Act of 1915, p. 598, now Code of 1940, Title 7, § 214, which provides:
But this statute did not have the effect of making rulings reviewable on appeal, which were theretofore not reviewable. Its import was to make every motion in writing and the ruling thereon a part of the record proper, and rendered it unnecessary to reserve an exception to the ruling on a written motion. The scope of review was not thereby enlarged. As Chief Justice Anderson said in National Surety Co. v. O'Connell, supra:
The statement relied upon by the appellants in Du Pree v. Hart, 242 Ala. 690, 692, 8 So. 2d 183, 185, that, (citing the above statute): "All motions in writing occurring prior to the rendition of the final judgment may be reviewed on appeal from that judgment." is limited by the rule in the O'Connell case, supra.
The result of the foregoing is that the denial of the appellant's motion for change of venue may not be considered by us on this appeal.
It is pertinent to mention here that we considered appellants' motion for change of venue in this case on its merits and denied such motion when it was before us on a petition for writ of mandamus. Ex parte International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), Ala., 90 So. 2d 726.
At this point it should be observed that this case on its merits is practically a companion case to the case of International Union etc. v. Russell, 264 Ala. 456, 88 So. 2d 175. Both this case and the Russell case arose out of the same set of facts, were tried by the same attorneys, had the same trial judge, and were tried on similar pleadings with evidence substantially *695 identical. Due to the similarity of the two cases, many of the errors assigned in this case have already been considered and disposed of by this court.
Since the appellants' assigned errors 2, 13, 14, 16, 17, 18, 19 and 20, which relate to the jurisdiction vel non of the trial court, oral charges concerning injuries to an engine, objections to evidence on the engine episode, and the introduction of a motion picture film were considered by us in the other case, supra, and each held not to be error, we will not here consider those assignments of error. Assignment of error 15 concerns the admission of still pictures of the picket line. These pictures portray a portion of the events shown by the motion picture film. Of consequence it is not deemed necessary to discuss these pictures separately. All of the above mentioned assignments are held to be untenable on authority of the Russell case, supra.
The remaining assignments of error will be considered only if supported by proper argument. Supreme Court Rule 9, Code 1940, Tit. 7, Appendix.
The refusal of the court to give defendants' requested charges numbered 5 and 7 (assignments of error 8 and 9 respectively) are separately assigned as error and argued. The principles of law contained in these charges were substantially and fairly covered in the court's oral charge and in charges given at the request of the defendants. Therefore, the refusal to give these charges was not error. Lackey v. Lackey, 262 Ala. 45, 76 So. 2d 761; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So. 2d 266; City of Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259; Alabama Code of 1940, Title 7, § 273.
Assignment 12 complains that the trial court committed reversible error in commenting upon the evidence by stating in the presence of the jury that the court would refuse to give requested charge 16 unless the defendants agreed to add certain words to the charge. The defendants would not agree for the words to be added, so the charge was refused. The refusal of the charge is not argued as error, but the defendants insist that the comment by the judge is error. It is sufficient to say that the defendants did not invite any ruling by the court with respect to the matter nor did they reserve an exception to the statement. There is nothing therefore, to review. Lackey v. Lackey, supra; Rutledge v. Brilliant Coal Co., 247 Ala. 40, 22 So. 2d 428; Wilson v. Federal Land Bank of New Orleans, 230 Ala. 75, 159 So. 493.
The appellants argue under their assignment of error 4 that the verdict was contrary to the great preponderance of the evidence in that there was no evidence to prove that the plaintiff would have earned any wages even if he had entered his place of employment. The same argument was presented to us in the other case noted above; and what was said there equally applies here. We stated in the Russell case, supra, 88 So.2d at page 184:
The appellants insist in their argument under assigned errors 5 and 6 that the *696 $18,450 verdict is excessive and that the court was in error for this reason in overruling the motion for a new trial. The damages recoverable were for loss of wages, mental anguish and punitive damages. In his argument to the jury the plaintiff requested $450 for loss of wages, which leaves $18,000 awarded for mental anguish and exemplary damages. We have no way of knowing what part of the verdict is attributable to each of these latter two considerations.
The damages that may be awarded for pain and mental anguish are in a large measure discretionary, within reasonable bounds; and unless the amount awarded is so excessive or so inadequate as to indicate prejudice or passion, the rule is not to reverse. Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So. 2d 190; Byram & Co. v. Livingston, 225 Ala. 442, 143 So. 461; Louisville & N. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874. The same rule applies to punitive damages.
Stated another way, the matter of damages must be left to the discretion of the jury, whose judgment will not be interfered with unless the amount is so excessive as to show passion or prejudice, or other improper motive. International Union etc. v. Russell, supra; Key v. Dozier, 252 Ala. 631, 42 So. 2d 254; Powell v. Bingham, 29 Ala.App. 248, 196 So. 154, certiorari dismissed 239 Ala. 515, 196 So. 160.
And where the trial court refuses to grant a new trial because he does not think the verdict to be excessive, the favorable presumption attending the verdict of the jury is thereby strengthened. Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So. 2d 830; McEntyre v. First Nat. Bank of Headland, 27 Ala.App. 311, 171 So. 913.
Considering that the trial proceeded with all due calmness and fairness; that the jury was properly instructed as to damages; that these damages included recovery for loss of wages, mental suffering, and punitive damages; and considering the nature of the wrong complained of and the necessity of preventing similar wrongs, we cannot say with any degree of certainty that the damages awarded indicated such misconduct on the part of the jury and that the trial court committed reversible error in failing to grant the new trial on the stated ground.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur. | November 15, 1956 |
04ad5cc8-5a1b-4a28-b7dc-31eb5be1a8cd | McGowin Investment Co. v. Johnstone | 306 So. 2d 290 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 290 (1975)
In re McGOWIN INVESTMENT CO. et al.
v.
Douglas I. JOHNSTONE et al.
Ex parte McGowin Investment Co. et al.
SC 1080.
Supreme Court of Alabama.
January 16, 1975.
Edmund R. Cannon, Mobile, for petitioner.
None for respondent.
McCALL, Justice.
Petition of McGowin Investment Company, et al. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in McGowin Investment Co. et al. v. Johnstone et al., 54 Ala.App. 194, 306 So. 2d 286.
Writ denied.
MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX, FAULKNER and JONES, JJ., concur. | January 16, 1975 |
9ec370fa-8b8d-492b-962c-b27a4fa231ee | Eubanks v. Richards | 310 So. 2d 883 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 883 (1975)
C. R. EUBANKS et al.
v.
William A. RICHARDS et al.
SC 835.
Supreme Court of Alabama.
April 3, 1975.
*884 Billy J. Sheffield, Dothan, for appellants.
Jimmy S. Calton, Eufaula, for appellees.
EMBRY, Justice.[1]
This is an appeal from a final judgment for plaintiffs below, William and Alice Richards, against defendants below, C. R. and Claudie Eubanks. The parties to the action are adjoining property owners. The complaint sought relief in the form of a declaration vesting plaintiffs with the right to a perpetual easement for roadway across lands of defendants; the quieting of title to that right and enjoining defendants from obstructing the roadway along that easement. The right to relief was based upon the principle of law stated in the representative cases of Loveman v. Lay, 271 Ala. 385, 124 So. 2d 93, and Hill v. Wing, 193 Ala. 312, 69 So. 445:
for the period of time required by law. The defense, to the claim of plaintiffs, was that use of the roadway over lands of defendants was by permission of defendants. The trial court, after hearing testimony from more than twenty witnesses as to the existence and ownership of the easement, pro and con; after viewing documentary exhibits; after visiting and viewing the property and roadway over the disputed easement, made various findings:
Upon these findings the court rendered judgment for plaintiffs. That judgment decreed that plaintiffs were owners of a perpetual easement for roadway across lands of the defendants (The easement was given an accurate description otherwise than by metes and bounds). The judgment also enjoined defendants from obstructing or interfering in any way with plaintiffs' easement.
*885 Our approach to this case is governed by ARCP 52(a):
The findings not shown to be clearly erroneous they will not be disturbed. ARCP 52(a).
The conclusions of the trial judge, manifest in his judgment, were based on findings determined from evidence which was conflicting. The judgment is fairly supported by credible evidence. Those conclusions were not clearly erroneous or manifestly unjust. The trial judge committed no error in the trial of this action which approaches that requiring reversal. Therefore the judgment is due to be affirmed.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.
[1] Briefs were carefully considered, as were taped oral arguments, by the author of this opinion. | April 3, 1975 |
3d430045-0580-467b-957c-f55e0ffaa886 | Harris v. Board of Water and Sewer Com'rs of City of Mobile | 320 So. 2d 624 | N/A | Alabama | Alabama Supreme Court | 320 So. 2d 624 (1975)
Cliff B. HARRIS
v.
The BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a Public Corporation.
SC 851.
Supreme Court of Alabama.
July 10, 1975.
As Corrected on Denial of Rehearing October 2, 1975.
*626 Conrad & Hammond, Mobile, for appellant.
Gaillard, Wilkins, Smith, Little & Druhan, Mobile, for appellee.
JONES, Justice.
This appeal results from the trial Court's granting of The Board of Water and Sewer Commissioners of Mobile's (defendantappellee) motion to dismiss Cliff Harris's (plaintiff-appellant) two-count amended complaint.
Harris, a resident and taxpayer of Mobile, owned and operated a motel and restaurant in Mobile County. The Board is a public corporation organized pursuant to Tit. 37, § 402(28-46), Code of Alabama 1940 (Recomp. 1958). By virtue of a contract with the City of Mobile, the Board is charged exclusively with the water and sewer system responsibilities for Mobile County. As part of its contractual obligation to the City, the Board is to provide fire hydrants and to maintain an adequate supply of water for the proper functioning of those hydrants.
On August 28, 1971, Harris's motel and restaurant caught fire; and firemen, according to the complaint, were unable to extinguish the fire because the hydrants were dead (dry). Consequently, the motel and restaurant were totally destroyed.
Harris's amended complaint, alleged, inter alia:
Two issues confront us:
We reverse the order of dismissal entered by the trial Court. We hold that the Board does not now enjoy such immunity and there is sufficient privity to allow the contract action. We remand this cause for further proceedings not inconsistent with this opinion.
As to the existence vel non of privity of contract, this Court has twice held that the property owner cannot maintain an action against a water company for the loss of property proximately resulting from its failure to provide sufficient water or water pressure for fire purposes, as is required by its contract with the municipality there being a want of privity between such property owner and the water company. Ellis v. Birmingham Water Works Company, 187 Ala. 552, 65 So. 805 (1914); Lovejoy v. Bessemer Waterworks Company, 146 Ala. 374, 41 So. 76 (1906).
At this point, we note that through the years there has been a substantial degree of confusion as to the distinction in these situations (if, indeed, such distinction exists) between the requirements that a party be in privity of contract or be a third party beneficiary to the contract. See Murray, Murray On Contracts, § 278 (1974). This distinction was clearly delineated by Justice Stone in La Mourea v. Rhude, 209 Minn. 53, 295 N.W. 304, 306 (1940):
Alabama law is clear to the effect that one for whose benefit a valid contract has been made, although that person is not a party thereto and does not furnish any consideration therefor, may maintain an action on the contract against the promissor. Anderson v. Howard Hall Company, 278 Ala. 491, 179 So. 2d 71 (1965); Mutual Benefit Health & Accident Association of Omaha v. Bullard, 270 Ala. 558, 120 So. 2d 714 (1960); Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459 (1952); Employers Ins. Co. of Alabama v. Rhodes, 240 Ala. 226, 198 So. 616 (1940); Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58 (1939); Barlowe v. Employers Ins. Co. of Alabama, 237 Ala. 665, 188 So. 896 (1939). The only condition being that the third person must have been intended to be directly and not incidentally benefited. Anderson v. Howard Hall Company, supra; Brown v. Fogarty, 221 Ala. 283, 128 So. 376 (1930).
The third party beneficiary rule has also been the basis of recovery under similar factual situations in other jurisdictions. Royal Indemnity Co. v. City of Erie, 326 F. Supp. 571 (W.D.Pa.1971); Doyle v. South Pittsburgh Water Company, 414 Pa. 199, 199 A.2d 875 (1964); Potter v. Carolina Water Company, 253 N.C. 112, 116 S.E.2d 374 (1960); Pineville Water Company v. Bradshaw, 266 S.W.2d 305 (Ky. 1953).
In our present situation, how can it be said that Harris is not the very party for whose benefit the contract was made? We agree that the City itself enjoys some degree of direct benefit from their contract with the Board since its own property is protected. But, in the end, the most direct benefit inures to the people of the City, like Harris, who rely on these city-provided services for the protection of their property. This is not to say that the Board is an insurer against all fire losses, but it should be answerable to all those who are injured by its breach of the contract to supply water or its negligent maintenance of nonfunctioning fire hydrants where damage results proximately therefrom. We find that the facts alleged are sufficient to show that benefits of the contract in question flow to Harris, and thus make him a third-party beneficiary entitled to sue on the contract for its breach.
The negligence count, though based in tort rather than contract, is also an acceptable ground under which Harris may elect to sue the Board. As set forth in Tennessee Coal, Iron & Railroad Co. v. Sizemore, supra, 258 Ala. at 349, 62 So.2d at 463:
See also Vines v. Crescent Transit Company, 264 Ala. 114, 85 So. 2d 436 (1955).
There are two basic avenues by which tort liability might be found to exist in this case. First, the failure to act when there is a legal duty to do so is sufficient to support a cause of action in negligence. Moseley v. Alabama Power Co., 246 Ala. 416, 21 So. 2d 305 (1945); Tennessee Coal, Iron & Railroad Co. v. Smith, 171 Ala. 251, 55 So. 170 (1911). Second, the well-established and long-followed tort liability doctrines espoused by Justice Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) are likewise sufficient to support a tort action.
In order for Harris to have a cause of action grounded in negligence, three essential elements must be found: (1) There must be a duty owed by the Board to Harris. (2) There must be a breach of that duty, either by omission or commission. (3) There must be an injury sustained by Harris in consequence of that breach. Sammons v. Garner, 284 Ala. 131, 222 So. 2d 717 (1969); Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So. 2d 274 (1964).
As to whether there is a duty owed by a water works board to an individual citizen with respect to fire hydrants, the Pennsylvania Supreme Court, in Doyle v. South Pittsburgh, etc., Co., supra, dealt very skillfully with that precise issue. The holding in Doyle is to the effect that, even if the water company had no duty to provide the fire hydrants in the first place, once the hydrants were there, the water company did have an imperative duty to see that reasonable care was exercised in the maintenance and repair of the hydrants.
We adhere to that principle and here told that, given the fact that the hydrant was installed, the failure to use reasonable care in its maintenance, including the supplying of water thereto, is a sufficient breach of duty to provide a party with a cause of action under the theory of simple negligence.
In addition to the Pennsylvania case already cited, at least three other recent decisions have held there is a duty owed to the plaintiff in similar situations. Shannon v. City of Grand Coulee, 7 Wash. App. 919, 503 P.2d 760 (1972); Royal Indemnity Co. v. City of Erie, supra; Potter v. Carolina Water Co., supra.
*630 Moreover, our decision is but a natural extension of Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419 (1957), wherein we held that a property owner could maintain an action against a city water board for negligence in the maintenance of a sewer line. The only real difference in that case and the case at bar is one of degree. In Brown, the problem was "too much water"; here the problem is "not enough water."
MacPherson discusses at least two possible ways a plaintiff in a situation such as this might recover under well-recognized principles of tort law. First, where one party to a contract assumes a duty to another party to that contract, and it is foreseeable that injury to a third partynot a party to the contractmay occur upon a breach of that duty, the promissor owes that duty to all those within the foreseeable area of risk. Certainly, the facts in the instant case fall squarely within that rule. As to the doctrine of foreseeability, see Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974).
Second, although MacPherson speaks to a manufacturer's liability, the rationale is equally applicable to a supplier, as here. The pleadings disclose no malfunctions in the operation of the fire hydrant in question, but they do indicate that the owner and supplier failed to have the hydrant ready for the only purpose it had to provide water for a fire. Manufacturers' tort liability applies in cases where there is no privity between the manufacturer and the ultimate user. While at this point in time it would be of academic curiosity merely, it is at least arguable that Alabama has never required privity as a basis for tort liability; i.e., even in the preMacPherson era, privity between the parties was not a requisite for liability ex delicto.
If the product in question, although not inherently or imminently dangerous in itself, becomes so when applied to its intended use in the usual and customary manner, and an injury is sustained as the natural and proximate result of the use of that article, then the manufacturer is liable to the user. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846 (1958). The fireplug was to be used in the usual and customary manner and the injury was sustained as the natural and proximate result of the inability to use that article, according to Harris's complaint. What can be more imminently dangerous that a fireplug that does not function when it is needed to fight a fire?
The rhetorical questions posed by the Pennsylvania Supreme Court in Doyle v. South Pittsburgh Water Co., supra, clearly indicate the need for allowing liability to lie with the wrongdoer.
Whether our holding herein would have obtained had we accorded validity to the municipal immunity defense, we need not decide in view of our decision abolishing the application of this doctrine, this date released, in Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68. Because we are expressly overruling Ellis and Lovejoy, however, the policy reasons for quasi prospective application is equally valid here, i.e., relief is afforded to the instant plaintiff and to others similarly situated who incur injury or damage from this date hence.
Reversed and remanded.
*631 FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.
BLOODWORTH, J., concurs in the result.
HEFLIN, MERRILL and MADDOX, JJ., dissent.
MERRILL, Justice (dissenting).
My reasons for dissenting are the same as those appearing in my dissent in Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68.
MADDOX, J., concurs.
JONES, Justice.
Opinion corrected and application for rehearing overruled.
BLOODWORTH, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.
HEFLIN, C.J., and MERRILL and MADDOX, JJ., dissent. | October 2, 1975 |
d9d51651-76d3-4817-ba41-cbca31eb17be | Tucker v. Walker | 308 So. 2d 245 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 245 (1975)
John H. TUCKER
v.
Cecil WALKER and Ralph Walker, etc.
SC 1015.
Supreme Court of Alabama.
February 13, 1975.
*246 Dieter J. Schrader, Huntsville, for appellant.
Finis E. St. John, III, Cullman, for appellees.
BLOODWORTH, Justice.
On this appeal by plaintiff Tucker from a summary judgment for defendants Walker, we reverse and remand.
Tucker's complaint seeks $100,000 damages for the alleged breach by the Walkers of a contract whereby Tucker was to install kitchen equipment, landscape, and construct parking facilities at the Trussville Convalescent Home.[1] To the complaint the Walkers interposed the affirmative defense of illegal contract, alleging that the contract sued on was for construction work "costing" more than $20,000 and that Tucker was not, at the time of the making of the contract, licensed in the State of Alabama as a general contractor as required by Tit. 46, §§ 65-82, Code of Alabama 1940 (Recompiled 1958).
It appears from the pleadings that on September 30, 1968, Tucker and the Walkers executed a written contract by which they agreed: "that the sum to construct... Trussville Convalescent Nursing Home will be $190,000"; that the "Home" was to be constructed in accordance with a contract executed that same day between the Walkers and Trussville Convalescent Home, Inc. except that Tucker would install kitchen equipment, landscape, and construct parking facilities. The agreement between Tucker and the Walkers does not state the consideration to be received by Tucker, nor does it appear to be the entire agreement between the parties. The contract between the Walkers and Trussville Convalescent Home, Inc. calls for $290,000 to be paid to the Walkers upon completion of the nursing home.
The difference between the $290,000 recited in the Walkers' contract with Trussville Convalescent Home, Inc. and the $190,000 recited in Tucker's agreement with the Walkers is, according to Tucker, the consideration which the Walkers orally agreed Tucker was to receive for furnishing kitchen equipment, landscaping, constructing parking facilities, and securing financing.
The Walkers moved for summary judgment pursuant to Rule 56, Alabama Rules of Civil Procedure, accompanying their motion with an affidavit by Cecil D. Walker in which he states that the suit which Tucker filed claimed $100,000, based on a claim for work done or to be done by plaintiff on the construction of the Convalescent Home and that neither plaintiff nor defendants were licensed contractors. Tucker opposed the motion with his own affidavit, the affidavit of his attorney, the Walkers' answers to interrogatories, and portions of the deposition of Cecil D. Walker.
*247 Tucker states in his affidavit that the "cost" to him of the "construction" work was less than $20,000. The Walkers' answers to interrogatories and portions of Cecil Walker's deposition offered by Tucker permit the inference that, in addition to the other work Tucker was to perform, he was also to procure permanent mortgage financing for the completed nursing home as part of the consideration for the $100,000 he was to receive from the Walkers.
After considering the pleadings and matters outside the pleadings offered in support of, and in opposition to, the motion for summary judgment, the trial judge concluded that there was no genuine issue as to any material fact and that the Walkers were entitled to judgment as a matter of law. We cannot agree with this conclusion.
The defendants' motion for summary judgment is based on our case of Cooper v. Johnston, 283 Ala. 565, 219 So. 2d 392 (1969), in which this Court held that a contract for the construction of a building "costing" more than $20,000, between a landowner and a "contractor," not licensed pursuant to Tit. 46, §§ 65-82, Code of Alabama 1940 (Recompiled 1958), is contrary to public policy and unenforceable by the unlicensed contractor.
This Court's holding in Cooper is based on the well-established rule that if the purpose of a licensing statute is the regulation of the business licensed and not merely the collection of revenue, a person not licensed cannot enforce a contract for services rendered within the scope of the regulated business. See Knight v. Watson, 221 Ala. 69, 127 So. 841 (1930); Southern Metal Treating Co., Inc. v. Goodner, 271 Ala. 510, 125 So. 2d 268 (1960).
The licensing statute in question requires "general contractors" to be licensed. The crucial provision is Tit. 46, § 65, Code of Alabama 1940 (Recompiled 1958), which defines "general contractor":
In order for the Walkers to be entitled to summary judgment, it must be shown (1) that Tucker was unlicensed; (2) that the contracted work was of the type covered by the statute; and, (3) that the "cost" of the work was $20,000 or more.
It is undisputed that Tucker was unlicensed. It is undisputed that the installation of kitchen equipment, landscaping, and construction of parking facilities are covered by the statute. The question is whether or not these undertakings and improvements cost "twenty thousand dollars or more." (It is conceded by Tucker, in brief, that if they did, judgment should be rendered against him provided the parties were not joint venturers.)
When the word "cost" in the definition above is construed in context, we believe it refers to the amount which the contractor is to receive for his work and not merely the out-of-pocket expenses incurred by the contractor in performing the work.
Thus, stated in the simplest terms, the dispositive question on this appeal is whether there is a genuine issue of fact as to whether the sole undertaking of Tucker *248 was the performance of the above-enumerated "construction" work for a consideration of $20,000 or more. On the state of the record before us, we hold that there is such a genuine issue of fact.
From our consideration of those matters offered in support of, and in opposition to, the motion for summary judgment it appears that the contract between the parties was partially written and partially oral and that there is a genuine issue of material fact as to whether part of the consideration for the defendants' oral promise to pay $100,000 to Tucker was for procuring permanent financing and other services not within the ambit of the general contractors' statutes and whether he was to receive less than $20,000 for his "construction" work. There being such a genuine issue of material fact, the Walkers were not entitled to judgment as a matter of law. Hence, we reverse and remand.
Reversed and remanded.
FAULKNER, JONES, ALMON and EMBRY, JJ., concur.
[1] See Tucker v. Trussville Convalescent Home, Inc., 289 Ala. 366, 267 So. 2d 438 (1972), wherein this Court affirmed the Circuit Court of Jefferson County's dismissal without prejudice of Tucker's action to foreclose a mechanic's lien on the property. | February 13, 1975 |
4965ba58-be32-4002-a327-72fdaa25a0a9 | Folmar v. Montgomery Fair Company, Inc. | 309 So. 2d 818 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 818 (1975)
Mary B. FOLMAR
v.
MONTGOMERY FAIR COMPANY, INC., a corporation, and Gayfer's Montgomery Fair Company, a corporation.
SC 737.
Supreme Court of Alabama.
February 13, 1975.
Rehearing Denied March 6, 1975.
*819 Thomas S. Lawson, Jr., Montgomery, for appellant.
John M. Milling, Jr., and William I. Hill, II, Montgomery, for appellees.
FAULKNER, Justice.
The plaintiff, Mrs. Mary Folmar, "tripped" while walking between display tables in the china department of the Montgomery Fair department store. She allegedly sustained a broken hip and shoulder from the ensuing fall and sued the store for negligence, demanding judgment in the amount of $85,000. A demurrer was sustained to the complaint, hereupon the plaintiff amended her complaint. The store then moved for summary judgment. The moving papers consisted of the pleadings, an affidavit of one store employee, and the deposition of Mrs. Folmar herself. The plaintiff opposed the motion by submitting a deposition from the same store employee, an affidavit from Mrs. Folmar, and one from her daughter, who had accompanied her to the store on the day of the incident. Montgomery Fair's motion was nonetheless granted and the suit was dismissed. This appeal followed.
The only pertinent issue on appeal is whether the trial judge acted correctly in granting the defendant's motion for summary judgment. The store's principal contention throughout has been since there is no evidence as to the exact cause of the plaintiff's fall, there can be no basis for a finding of negligence of any kind. In other words, was there insufficient evidence to create a jury question as to the *820 cause of the plaintiff's fall. Most of the doubt stems from the statements made by Mrs. Folmar while being deposed:
In consonance with this question, the affidavit submitted by Mrs. Folmar in opposition to the motion for summary judgment reads as follows:
Appended to this affidavit as exhibits were some photographs of round tables located in the store. Some of these pictures show tables with flared legs protruding beyond the top of the table.
On appeal from summary judgment, the appellate court looks at the same factors which the court below considered in ruling on the motion. 10 Wright & Miller, Federal Practice and Procedure, § 2716, p. 430 (1973). It is also axiomatic that all reasonable inferences from the facts be viewed most favorably to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). After reviewing all of the affidavits, depositions, pleadings and exhibits we are unable to conclude that there was no material issue remaining for trial. Mrs. Folmar's pictures show tables currently in the china department. At the time of the accident, the tables she walked among were draped with long cloths and she did not notice the legs. The store superintendent, Roland Peavy, checked the area immediately after her fall and found no foreign object or matter there. There is no dispute about this fact. Mrs. Folmar states, "... If there was nothing else on the floor between the tables or under the long cloths to trip me when I passed between them and I did trip on somethingit could only have been the leg of the table." Mr. Peavy on deposition stated that no new tables or chairs have been purchased for the china department since the accident, and that the furnishings there are basically the same as they were on that day. In light of this, we feel a jury could readily infer that Mrs. Folmar tripped over one of these protruding legs. The store has offered no possible explanation in the alternative; granted, of course, it is not required to do so to succeed here. But the fact that an ultimate jury verdict in the plaintiff's favor might involve some speculation or conjecture as to what caused her fall is not dispositive of this case. There is nothing wrong with a case built around sufficient circumstantial evidence, provided the circumstances are proved and not merely presumed. Richards v. Eaves, 273 Ala. 120, 135 So. 2d 384 (1961). Any judgment in such a case must necessarily involve some amount of speculation or inference by the jury. There is conjecture only where there are two or more plausible explanations of causation, and the evidence does not logically point to one any more than the other. Where the evidence does logically point in one direction more than another, then a jury can reasonably infer that things occurred in that way. This generally comports with the plaintiff's urged reading of the cases of Southern Ry. v. Dickson, 211 Ala. 481, 100 So. 665 (1924) and Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505 (1946). All are agreed that Mrs. Folmar fell in the store, that there was nothing else on the floor, that she fell between tables in the china department, some of these tables have protruding legs, and that no furniture has been added or deleted since the accident. Add to this the plaintiff's staunch contention that she tripped over "something" and it is hard to see how a possible finding in her favor can be conjecture. The store has never contended that she did not trip as stated, but only that she did not know exactly what she tripped over. However, her later affidavit exudes more certainty of a kind. She says, "... it could have only been the leg of the table."
*822 A plethora of federal cases say that the party moving for summary judgment must clearly establish that the other party could not recover under "any discernible circumstances." Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir., 1973); Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440 (1972); Phoenix Savings and Loan, Inc. v. Aetna Casualty and Surety Co., 381 F.2d 245 (4th Cir., 1967). The moving papers of the defendant simply do not do that. There is certainly a possibility of a jury verdict for the plaintiff as the record stands now.
The defendant has not precluded the possibility, as a matter of law, that the plaintiff might not prove her case. The fact that she is perhaps unlikely to prevail at trial is not a standard to be applied. Jobson v. Henne, 355 F.2d 129 (2d Cir., 1966); National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647 (5th Cir., 1962). The judge need not believe the opposing party's evidence in order to deny summary judgment. Nor must he feel that a jury would necessarily believe it. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S. Ct. 724, 88 L. Ed. 967 (1944). The moving party is trying to show that there is no way whatsoever the other party could recover. Thus summary judgment can only be proper "where it is clear what the truth is." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). This is obviously another way of saying that there must not be a genuine issue as to any material fact. It is fairly obvious in this case that it is not yet clear "what the truth is." Did Mrs. Folmar trip over protruding legs of display tables or did she not?
The federal courts have followed a general rule which frowns upon the granting of summary judgments in negligence cases. This is due to the supposed superior competence of a jury in applying a standard of reasonableness to a certain set of facts. Experience has borne out the fact that negligence actions almost always present some unresolved questions of fact.
See also Committee Comments to Rule 56, Alabama Rules of Civil Procedure; 10 Wright & Miller, Federal Practice and Procedure, § 2729, pp. 559-582 (1973). We have no quarrel with this general proposition, but feel it does not apply in this particular case. We would not be so doctrinaire as to say that summary judgment is never proper in such a situation. However, a reading of the cases footnoted in the Wright & Miller text indicates that those cases in which summary judgment was granted had some other element not present here (10 Wright & Miller, supra, nn. 76-80), i.e. the plaintiff has perhaps failed to prove an essential agency relationship, or that he is within a class protected by a statute he relies on, or he has sued the wrong party, or has somehow waived a right to recovery, and so on. The instant case does not fit any of these categories or any analogous to them. Why then should it be an exception to the rule?
When all of the evidence is considered in a light most favorable to the plaintiff, and her necessary inferences are assumed, *823 true, it is obvious that reasonable men might reach different conclusions as to the cause of Mrs. Folmar's fall and subsequent injury. If this is so, then the cases indicate that summary judgment can not be granted. United States of America v. Perry, 431 F.2d 1020 (9th Cir., 1970); Cole v. Chevron Chemical Co., 427 F.2d 390 (5th Cir., 1970). In this jurisdiction we must also consider the effects of the scintilla rule on a summary judgment. If the plaintiff has produced a scintilla of evidence on the issue of the defendant's negligence, then summary judgment will not lie. We fully understand that in order to find for the plaintiff, a jury would first have to infer that one of the table legs caused her to fall, and from that determine that some negligence existed. The probability that this might or might nor occur is not important for the purposes of this review. The plaintiff might escape summary judgment and still suffer defeat via directed verdict. However, that would be at a time subsequent to the presentation of all the evidence. Also at that point the trial judge is permitted some feelings about whether the jury will believe the plaintiff's evidence. We would think that in order to grant summary judgment, the trial judge, in using a directed verdict standard, must feel that regardless of what evidence the opposing party might present at trial, he would nonetheless have to direct a verdict. That is a grave decision to make prospectively, and our review of such a decision should be equally as stringent. In light of what has been said, we conclude the trial judge erred in his conclusion.
Application for rehearing granted; original opinion withdrawn; reversed and remanded.
BLOODWORTH, JONES, ALMON and SHORES, JJ., concur.
HEFLIN, C. J., and MERRILL, MADDOX and EMBRY, JJ., dissent.
HEFLIN, Chief Justice (dissenting):
I agree, basically, with the opinion of Justice Maddox in this cause, but feel that the circumstantial evidence was sufficient to make a jury question as to what Mrs. Folmar tripped over. However, I do not believe that there is a scintilla of evidence pertaining to negligence. The facts of this case do not qualify to come within the purview of First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So. 2d 18 (1960).
MADDOX, Justice (dissenting).
Although I can admit that this is a close case, I believe the trial court was correct in granting summary judgment in this particular case.
This is a negligence action and I realize that, as a general proposition, issues of negligence are ordinarily not susceptible to summary adjudication. See Committee Comments, ARCP, Rule 56. Nevertheless, a motion for summary judgment may be granted, even in a negligence action, when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show two things: (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Rule 56(c) Alabama Rules of Civil Procedure; Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So. 2d 636 (1974).
What was presented? The evidence submitted on the motion for summary judgment and the evidence presented in opposition to it shows that the plaintiff did not know what caused her to fall in defendant's store. She testified, on deposition, as follows:
Viewing the evidence most favorably to Mrs. Folmar, as this Court is required to do, I find that these facts are presented:
1. Mrs. Folmar tripped on something and fell in the department store.
*825 2. She fell while attempting to pass between tables which were covered with table cloths and ladened with china.
4. The aisle where she fell contained no foreign objects or substances.
Mrs. Folmar filed a supplementary affidavit, on September 7, 1973, which read as follows:
Mrs. Folmar also filed three photographs as exhibits to her affidavit. The photographs were of round tables, some of which had flared legs that extended beyond the edge of the table itself. The other tables had straight legs.
Plaintiff Folmar contends that the evidence shows that she tripped on something which made her fall as she was walking between the tables; that it would be fair to state it was something in the aisle between the tables; that in view of the type of table involved, and in view of the store employee's statement that nothing else was on the floor, it can logically and reasonably be inferred that she tripped on the table leg. Plaintiff's counsel argues that since she did trip on something when she passed between the tables, and if there was nothing else on the floor or under the long table cloth to trip her, "then it could only have been the legs of the table on which she tripped." I disagree.
Plaintiff Folmar relies on First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So. 2d 18 (1960). In Ambrose, plaintiff tripped over a metal cigarette disposal stand which had flared legs. The plaintiff there knew what caused her to trip. The trial court denied, in Ambrose, the defendant's request for an affirmative charge, and a jury verdict was rendered for the plaintiff. This Court affirmed the trial court's judgment in refusing the affirmative charge in that case, but the facts and circumstances presented in that case are materially different, especially the evidence of causation.
Summary judgment in a negligence action is sometimes appropriate. See Herbert v. Regency Apartments, 292 Ala. 417 295 So. 2d 404 (1974). Previously, this Court, applying the scintilla evidence rule, has also found that a negligence action can be taken from a jury, if a jury verdict could only be based upon pure speculation and conjecture. Colonial Life and Accident Insurance Co. v. Collins, 280 Ala. 373, 194 So. 2d 532 (1967); McDowell and McDowell, Inc. v. Barnett, 277 Ala. 302, 169 So. 2d 324 (1964); Southern Ry. v. Woodstock Mills, 230 Ala. 494, 161 So. 519 (1935); Continental Casualty Co. v. Paul, 209 Ala. 166, 95 So. 814 (1923); St. Louis & S.F. RR. v. Dorman, 205 Ala. 609, 89 So. 70 (1921). It is axiomatic that the mere happening of an accident raises no presumption of negligence.
In Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505 (1946), this Court reversed the trial court for refusing to give the affirmative charge requested by the defendants in that case. In Griffin *826 Lumber, this Court followed the rule as laid down in the case of Southern Ry. v. Dickson, 211 Ala. 481, 100 So. 665, 669 (1924), as follows:
The fact that stands out in my mind is this. Plaintiff has not shown, by direct or circumstantial evidence, what caused her to trip. If she cannot show what caused her fall, how can a jury make such a finding? I do not think it can. Plaintiff says that she has shown that there were tables covered with table cloths which hid the legs from view. Some of the tables had straight legs. Some had flared legs. The pictures submitted with the affidavit do not show that these tables are unusual tables. They appear to be standard tables to me.
I cannot bring myself to the conclusion that the proof points to plaintiff's theory of causation, indicating a logical sequence of cause and effect. The proof here requires an inference that the "something" causing plaintiff to trip was a table leg (since plaintiff says that the leg was covered, we also have to infer it was, in fact, a table leg). If we infer that it was a table leg, we have to infer it was a flared table leg. That requires the type of speculation and conjecture which this Court said a jury verdict cannot be based upon in McClinton v. McClinton, 258 Ala. 542, 63 So. 2d 594 (1953).
I also fail to see how it could be negligent to display items of merchandise on tables like those we have pictures of in this case. The facts of this case are distinguishable from First National Bank v. Ambrose, 270 Ala. 371, 119 So. 2d 18 (1960), a case relied on heavily by plaintiff.
The majority and I do not disagree on the rule that summary judgment is rarely appropriate in a negligence case. I thoroughly agree with that general principle of law. See my original opinion in Ray and Plough v. Midfield Park, 293 Ala. 609, 308 So. 2d 686 (1974), and my special concurrence in Watwood v. Dawson Bridge Co., 293 Ala. 578, 307 So. 2d 692 (1975). I thought summary judgment was inappropriate in both those cases because the movant in both cases had not eliminated every genuine issue of a material fact. I do think summary judgment was appropriate here, however, as I have attempted to show. | February 13, 1975 |
83d84b25-454c-405b-accb-1f2090a4d347 | Ray v. Midfield Park, Inc. | 308 So. 2d 686 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 686 (1975)
John C. RAY and Richard M. Plough
v.
MIDFIELD PARK, INC.
SC 742.
Supreme Court of Alabama.
February 13, 1975.
Rehearing Denied March 6, 1975.
Collins & Johnston, Birmingham, for appellants.
Stone, Patton & Kierce, Bessemer, for appellee.
MADDOX, Justice.
The sole question presented here is: Was summary judgment appropriate? The case has been here before. Ray and Plough v. Midfield Park, Inc., 289 Ala. 137, 266 So. 2d 291 (1972). The facts surrounding the controversy are contained in that opinion and are not set out fully here, but succinctly stated, the dispute involves the question of whether the lessee gave notice *687 to renew his lease within the time set out in the lease.
Lessor claims that lessee failed to give proper notice to renew and filed a declaratory judgment action to have its rights determined. The matter has been in court since that time.
After this Court remanded the case to the trial court, the lessor filed a motion for summary judgment. Even though the motion was styled a motion for summary judgment, it was in the nature of a motion for judgment on the pleadings (Rule 12(b) and (c), Alabama Rules of Civil Procedure), because no additional matter was presented by the lessor, as movant, to support its allegation that there was not a genuine issue of a material fact in the case and that it was entitled to a judgment as a matter of law. The problem here is not whether we call the pleading a motion for a judgment on the pleadings or a motion for summary judgment. The question is whether the lessor has sustained its burden to show that it was entitled to judgment under established principles. We think the movant failed to sustain its burden in this case.
The only evidence in support of the motion which the court could consider was the original declaratory judgment complaint; a copy of the lease, which was attached as exhibit 1 to the complaint; a letter from the lessee Ray to lessor Midfield Park, dated March 18, 1969, which purports to be notice by the lessee that he wanted to renew the lease; a copy of a letter from Midfield to Ray dated March 26, 1969, stating that the notice to renew was not exercised within the stipulated time; and a copy of a letter from Ray's attorney dated March 27, 1969 to Midfield which stated, in part, that the notice given by Ray "constituted substantial compliance with the original lease and modification and ratification thereof." Lessor contends that the lease, lessee's allegedly late notice to renew and lessee's attorney's letter show that the lessee did not give notice to renew as required and that it was entitled to a judgment as a matter of law.
Ray and Plough filed no evidence in opposition to the motion for summary judgment. In an amended answer which was contained in the original pleadings, however, they had claimed that the lessor had waived the formal notice to renew, as follows:
The movant offered no evidence to negative the allegations of the lessees that a waiver had occurred. Did the allegation in the answer raise a genuine issue of a material fact? We think so. Therefore, summary judgment was inappropriate.
When a movant makes a motion for summary judgment, the burden is upon him to show that there is no genuine issue of a material fact left in the case. As further evidence that a genuine issue of a material fact remained in this case, we set out a portion of the court's order, which affirmatively shows that the trial judge made *688 a finding of fact in granting the motion for summary judgment. He held:
In other words, the trial judge determined, as a matter of fact, that the waiver which Ray and Plough claimed existed, did not and could not, in fact, exist. On a motion for summary judgment, the trial judge cannot make such factual findings.
The ruling we make does not mean a party can always rely upon the allegations and denials of his pleadings to establish a genuine issue of fact. When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of the pleadings. In fact, it can be perilous for the opposing party neither to proffer any countering evidentiary materials nor to file an affidavit. For instance, had the movant there brought forth evidence to negative the lessee's defense of a waiver, the lessees could not merely rest on the allegation in their answer that a waiver did occur. Yet, 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 moving party has not met the issue raised by the defense that there was a modification of the written lease agreement which would have allowed the lessees to file their notice at the later time. Consequently, we must send the case back to the trial court again.
The application for rehearing is granted and the original opinion in this case is hereby withdrawn.
The judgment of the trial court granting summary judgment is reversed and the cause is remanded to that court for further proceedings.
Application for rehearing granted; original opinion withdrawn; reversed and remanded.
HEFLIN, C. J., and BLOODWORTH, JONES, ALMON and SHORES, JJ., concur.
MERRILL, FAULKNER and EMBRY, JJ., dissent.
FAULKNER, Justice (dissenting).
The majority opinion is based principally on the theory that the movant for summary judgment must negate the defense of oral waiver by affidavit or some other evidence. Rule 56 does not provide for any such theory. Subdivision (a) permits a claimant to move for a summary judgment "with or without supporting affidavits;" subdivision (b) permits the defending party to move in a similar manner, and subdivision (c) includes the pleadings as a motion for summary judgment. Therefore, a motion for summary judgment may be made wholly on the pleadings. Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161 (1942). In that case the complaint showed on its face that the statute of limitations *689 had run out. In affirming summary judgment the court said:
In the case before us the answer alleges modification of a written lease by oral agreementoral waiver of written notice to renew. Thus, the alleged oral waiver violates the Statute of Frauds. § 3, Title 20, Code of Alabama 1940, Recompiled 1958. See Hackney v. Griffin, 244 Ala. 360, 13 So. 2d 772 (1943). In Weatherwax v. Heflin, 244 Ala. 210, 12 So. 2d 554 (1943), this court said:
I am of the opinion that any modification of the lease in question, which was required to be in writing under our Statute of Frauds, must also be in writing. The oral waiver is a sham defense. Since the allegation of oral waiver showed on its face that it violated the Statute of Frauds, Ray and Plough should have filed evidentiary matter showing that the Statute of Frauds was inapplicable. By not doing so, the pleadings showed there was no genuine issue of a material fact. Midfield did not have to file evidentiary materials to negate a waiver invalid on its face. Midfield rested its case for summary judgment on the pleadings as it could do under Rule 56. It was then up to Ray and Plough to lay some cards on the table.
When the moving party has presented satisfactory moving papers, regardless of the composition thereof, the opposing party cannot create a genuine question of a material fact on the mere strength of his pleadings.
I would affirm the trial court.
MERRILL and EMBRY, JJ., concur. | February 13, 1975 |
1a95b6ff-a831-4288-8661-ddabd55cdc64 | Hurst v. Thomas | 91 So. 2d 692 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 692 (1956)
C. H. HURST et al.
v.
Robin THOMAS.
8 Div. 856.
Supreme Court of Alabama.
December 21, 1956.
*693 Julian Harris and Philip T. Shanks, Jr., Decatur, for appellants.
Russell W. Lynne, Decatur, for appellee.
GOODWYN, Justice.
The appellee, complainant below, brought a suit in equity against appellants, respondents below, seeking specific performance of an oral agreement for lease of real estate and an injunction to restrain respondents from interfering with complainant's possession of the property. The trial court rendered a decree granting the relief prayed for. This appeal is by the respondents from that decree. The testimony was taken orally before the trial judge.
To the extent material to an understanding of the issues presented for review on this appeal, the facts are these: The property involved is a store building in Decatur belonging to C. H. Hurst, one of the respondents. This building had been leased for the year 1955 to one Semmes who operated an automobile agency on the adjoining lot. In the fall of 1955 the complainant, Thomas, learned that Semmes seldom used the building and did not intend to renew his lease at the end of the year. Thomas then approached Hurst seeking a lease for the coming year. He testified that he planned to use the front part of the building as a furniture store and to sub-rent the rear portion to another concern, the Worthington Corporation.
Thomas contacted Hurst several times with regard to procuring a lease, but they could not agree on the rental. Finally they agreed to meet at a cafe in Decatur to further discuss terms. Here the evidence is in sharp conflict. The only witnesses present at the meeting were Thomas and Hurst. Thomas testified that a definite oral lease agreement was made for the coming year at a monthly rental of $200 payable in advance, with an option for renewal for an additional year, and that Hurst told him to go ahead with his plans for the use of the building. Hurst denied that any agreement was reached, and testified that the negotiations were left pending. The trial court resolved this conflict in the evidence in favor of the complainant, and found as a matter of fact that the oral lease had been agreed on as contended by the complainant.
The complainant testified that, in reliance on the agreement with Hurst, he negotiated an agreement with Semmes for the sub-lease of the building during December for $150. No part of the rental money was paid to Semmes, but an employee of Semmes did give the keys of the building to Thomas, and Thomas proceeded to clean out the building and erect a partition between the area he was to use and the portion which he planned to subrent to the Worthington Corporation. Thomas further testified that he definitely committed himself to sub-rent to the Worthington Corporation on the faith of his agreement with Hurst. However, no agreement between Thomas and his proposed sub-tenant was ever signed.
Later in December Hurst entered into a written lease of the premises with the defendant Gregg for a term of three years at a monthly rental of $250. Semmes also agreed to sub-rent to Gregg for the remainder of December and the rental was immediately paid in cash. Gregg then changed the locks on the building and refused entry to the complainant.
The complainant then brought this suit for specific performance of the alleged oral lease agreement with Hurst, and asked the court to restrain Gregg and Hurst from interfering with his possession. The trial *694 court granted specific performance, and the respondents prosecute this appeal.
The position taken by appellants is thus stated in their brief:
The first question presented, then, is whether the alleged oral lease is valid and operative as being within the exception to the Statute of Frauds, § 3, Subd. (5), Tit. 20, Code 1940, as amended. Section 3 was amended in 1951 by adding subdivision (6), but the amendment has no bearing on this case. Act No. 645, approved Sept. 4, 1951, Acts 1951, p. 1109. If it should be held that the oral agreement is not valid because within the Statute of Frauds, another question is whether the principle of estoppel is applicable so as to deny to respondents the right to interpose the Statute of Frauds as a defense.
Section 3, Subd. (5), Tit. 20, as amended, provides as follows:
This court has uniformly held that both possession and payment are necessary in order to take the oral agreement out of the operation of the statute. Neely v. Denton, 260 Ala. 26, 29, 68 So. 2d 537; Allen v. Bromberg, 163 Ala. 620, 624, 50 So. 884; Heflin v. Milton, 69 Ala. 354, 357.
It is undisputed under the facts of this case that Thomas never actually paid Hurst any rental money under the alleged oral lease. It is contended by the appellee, however, that the cleaning of the building and the erection of partitions by Thomas constituted partial payment within the terms of the statute. We are unable to agree. It appears obvious from the evidence that the erection of the partitions and the cleaning of the building were done by Thomas for his own benefit, and not as part of the agreed consideration for the lease. Williams v. Williams, 210 Ala. 372, 373, 98 So. 200; East Tennessee, V. & Ga. Railway Co. v. Davis, 91 Ala. 615, 619, 8 So. 349.
It is further argued by appellee that Thomas' parol promise to pay Hurst $200 as the first month's rent constituted partial payment. Our cases are conclusive on the point that a parol promise to pay *695 money does not constitute part payment within the saving clause of the statute. Timmerman v. Stout, 216 Ala. 49, 112 So. 335; Carlson v. Erickson, 164 Ala. 380, 382, 51 So. 175. We are at the conclusion, therefore, that there was no payment of the purchase price, or a part of it, and that the oral agreement falls within the operation of the statute. We forego any discussion on the question of possession.
The decree of the trial court, however, is not based on a finding of compliance with the saving clause of the Statute of Frauds but upon the doctrine of equitable estoppel. The trial court granted specific performance, not because the contract was taken out of the operation of the statute by partial performance, but rather on the theory that the defendant is estopped to assert the statute as a defense because of his conduct. The opinion states:
The misconduct of the defendant upon which the estoppel is based consisted of a deliberate breach of the contract after its creation. The court's finding of fact on this point is as follows:
It is well-settled in Alabama that "an executory agreement which is void under the statute of frauds cannot be made effectual by estoppel merely because it has been acted on by the promisee, and has not been performed by the promisor." Clanton v. Scruggs, 95 Ala. 279, 283, 10 So. 757, 759; Allen v. Bromberg, 163 Ala. 620, 624, 50 So. 884; Thompson v. New South Coal Co., 135 Ala. 630, 637, 34 So. 31, 62 L.R.A. 551, 93 Am.St.Rep. 49; White v. Levy, 93 Ala. 484, 487, 9 So. 164. See, also, Spencer v. Spencer, 254 Ala. 22, 26, 47 So. 2d 252.
The rule is thus stated in White v. Levy, supra [93 Ala. 484, 9 So. 165]:
From Clanton v. Scruggs, supra, is the following:
In Allen v. Bromberg, supra [163 Ala. 620, 50 So. 885], it is said:
We wish to make it clear that we do not find any indication in the bill of complaint, the findings of fact of the trial court, or the evidence, that respondent Hurst was guilty of fraud or inequitable conduct which should serve to estop him from interposing the Statute of Frauds as a defense. The worst that can be said of him is that he deliberately "breached the agreement solely for the purpose of profit and because he felt the law was powerless to compel him to keep faith," as stated in the trial court's findings of fact. We think the case falls fairly within the rule of the cases cited above and that Hurst is not estopped from asserting the invalidity of the oral agreement on the ground that it violates the Statute of Frauds.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur. | December 21, 1956 |
61ae15aa-d547-4281-b02b-1953ccdb3ad5 | State v. Self | 307 So. 2d 11 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 11 (1975)
STATE of Alabama
v.
Dwight H. SELF et al.
SC 890.
Supreme Court of Alabama.
January 16, 1975.
*12 C. R. D. Burns, Jr., Sp. Asst. Atty. Gen., Gadsden, for the State, appellant.
Simmons, Torbert & Cardwell, Gadsden, for appellees.
COLEMAN, Justice.
The state appeals from judgment awarding damages and compensation to landowners in a condemnation proceeding whereby the state acquired land in Etowah County for use as a public highway.
The state assigns error as follows:
The witness Morris testified that he has been living in Etowah County "practically" all his life; that he is in the business of "home builder" and has been in that business for about twelve years; that he has had occasion to buy land and lots in Etowah County; that he builds houses on the land and lots he buys and sells them; that that is how he makes a living and has done so for the past twelve years; that he has sold a lot of lots or parcels of land; that he is familiar with some property at East Gadsden owned by the condemnees; that he, Morris, has purchased some property that joins the property of the condemnees; that $27,000.00 was the total consideration paid for the property purchased by the witness on March 1st, 1971; that since his purchase, the witness has built houses on part of the property; that he subdivided the property; that he has built seven or *13 eight houses and some apartments on the property; that he has sold all the houses he built on the property.
On voir dire examination by the state, the witness Morris testified as follows:
Mr. Burns then stated: "MR. BURNS: Please the Court, we move that all of his testimony be excluded...." etc., as set out above in the assignment of error.
In Blount County v. Campbell, 268 Ala. 548, 109 So. 2d 678, this court had occasion to consider the action of a trial court in permitting witnesses to testify over appellant's objection as to the value of appellee's property. This court said:
In the instant case, the witness Morris testified with respect to his buying and selling of parcels of land in the area involved and building houses thereon. Certainly he had some knowledge of the property and some opportunity to form an opinion as to its value. We do not think the court erred in refusing to exclude all of the testimony of Morris.
Affirmed.
All the Justices concur. | January 16, 1975 |
0f696ef3-b166-49be-b210-61307eb870af | McCormick v. Alabama Power Company | 306 So. 2d 233 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 233 (1975)
Cherry Ann McCORMICK
v.
ALABAMA POWER COMPANY.
SC 755.
Supreme Court of Alabama.
January 9, 1975.
*234 Cunningham, Bounds & Byrd, Mobile, for appellant.
Balch, Bingham, Baker, Hawthorne, Williams & Ward, James O. Spencer, Jr., Birmingham, and J. B. Blackburn, Bay Minette, for appellee.
BLOODWORTH, Justice.
The appellant (plaintiff below), Cherry Ann McCormick, obtained a jury verdict for $30,000.00 in the Circuit Court of Baldwin County against appellee (defendant below), Alabama Power Company. Judgment was entered in accordance with the verdict. The defendant Alabama Power Company then moved for judgment notwithstanding the verdict or in the alternative for a new trial, alleging, inter alia, that the amount of the verdict was excessive and unjust. After a hearing thereon, the trial judge entered the following order:
"MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL, GRANTED
[For the facts of this derivative suit, see Alabama Power Company v. Taylor (1975), 293 Ala. 484, 306 So. 2d 236.]
The sole issue dispositive of this appeal is whether, absent the consent of the plaintiff, the trial judge possessed the power to enter a judgment for an amount less than that awarded by the jury. We think not and reverse and remand this cause.
Appellant McCormick contends that the order of the trial judge is contrary to the provisions of Rule 59(f), A.R.C.P., which provides:
and, that a "forced remittitur is violative of a plaintiff's right to trial by jury."
Appellee Alabama Power Company appears to argue that, under Rule 59(f), A. R.C.P., and the more modern view taken by *235 the federal courts, a plaintiff's consent is not a condition precedent to the entry of a remittitur inasmuch as, contrary to former procedure, a plaintiff can now appeal a remittitur even if he accepts the same.
We cannot agree with appellee. In cases decided before the adoption of the new rules of civil procedure, this Court, as well as the then Court of Appeals, has held:
The federal decisions construing Rule 59, F.R.Civ.P., reach the same conclusion. These decisions may be summarized as follows:
It may be noted that Rule 59(f) "Remittitur," A.R.C.P. is not found in Rule 59, F.R.C.P. Lyons, Alabama Practice, Rules of Civil Procedure Annotated, § 59.6. Although no reason is given in the "Committee Comments" as to why subsection (f) was added to Rule 59, it would appear that it was to clearly establish the rule that acceptance of a remittitur does not prejudice the plaintiff's raising, on appeal by defendant, the right to have the original verdict reinstated in the full amount, in contradistinction to the former Alabama case law.
It is thus we conclude that, under our Rule 59(f), a remittitur gives the plaintiff a choice. He can accept the remittitur or he can refuse to accept the remittitur *236 and suffer a new trial. If he accepts the remittitur, and defendant appeals, he is not prejudiced in his right to raise the issue that the verdict should be reinstated in the full amount. Rule 59(f), A.R. C.P.; see also Wright & Miller, Federal Practice and Procedure: Civil, § 2815, p. 105. However, the trial judge cannot enter a judgment for an amount less than that awarded by the jury, absent consent of plaintiff by way of remittitur under Rule 59(f), in light of the issues and evidence here.[1]
The judgment of the trial court is reversed and remanded for entry of a judgment on motion for new trial in conformity with this opinion.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, COLEMAN, HARWOOD, MADDOX, FAULKNER and JONES, JJ., concur.
[1] See 11 Wright & Miller, Federal Practice and Procedure: Civil, § 2815, p. 99. | January 9, 1975 |
0e4f35e9-8c0e-4197-8421-63bfbd8bce7c | Thorne v. Parrish | 90 So. 2d 781 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 781 (1956)
William Murphy THORNE
v.
Mattie Lee PARRISH.
8 Div. 881.
Supreme Court of Alabama.
November 15, 1956.
*782 Jesse A. Keller, Florence, for appellant.
C. E. Carmichael, Jr., Tuscumbia, for appellee.
SIMPSON, Justice.
This is an appeal from a judgment of the circuit court in a personal injury action. The single count submitted to the jury charged simple negligence. The defendant filed pleas of the general issue and contributory negligence.
A timely motion for new trial was overruled. Several grounds of the motion for new trial and the appellant's assignments of error pertain to the admission of evidence on the subject of insurance. This question arose while a witness for the defendant was being cross examined by the plaintiff. In that connection the record discloses the following:
"Objection overruled.
"Defendant reserves an exception.
"By the Court: Go ahead.
It should be presently observed that the plaintiff did not at any time during the trial attempt to impeach the witness with the statementif indeed it would have been permissible. It is clear to us that the plaintiff's sole purpose in asking to whom the statement was made, knowing that the statement was made to an insurance adjuster, was to convey the idea to the jury that the defendant was covered by insurance.
Then plaintiff's counsel's closing argument to the jury where he stated, "after they collect $30,000 Murphy Thorn [def.] and I will still be friends" could well have been interpreted to meanin connection with the previous cross examination of witness Holtthat the plaintiff's attorney and the defendant were friends and would still be friends after the jury gave the plaintiff $30,000 of the defendant's money because the defendant was indemnified.
It is prejudicial error to allow testimony to show or tending to show that a party is indemnified in any degree or fashion by an insurance company. Pearson v. Birmingham Transit Company, 264 Ala. 350, 87 So. 2d 857; Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381; Standridge v. Martin, 203 Ala. 486, 84 So. 266; Watson v. Adams, 187 Ala. 490, 65 So. 528.
When insurance is injected into the case during the questioning of witnesses, our cases hold that the prejudicial error may be eradicated. Colquett v. Williams, supra; Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244; Cannon v. Scarborough, 223 Ala. 674, 137 So. 900. The error on that point was cured in the Colquett case by later evidence showing that the insurance belonged to a person not a party to the suit. The prejudicial errors caused by irresponsive answers about insurance in both the Wagnon and Cannon cases were cured by prompt exclusion of the testimony by the trial judge and adequate instructions to the jury to the effect that insurance was not to be considered in their verdict.
But with reference to an argument made by counsel emphasizing the existence of insurance carried by his opponent covering the transaction, this Court has taken the position that the influence is ineradicable. Pearson v. Birmingham Transit Company, supra; Colquett v. Williams, supra; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387; Standridge v. Martin, supra.
Colquett v. Williams, supra [264 Ala. 214, 86 So. 2d 386], is similar to the instant case in two respects. Both cases had prejudicial evidence relative to insurance elicited from a witness and also improper argument to the jury. The prejudicial testimony of the witness in the Colquett case, which error was cured as indicated above, was "* * * I can't call his name right nowan insurance adjuster. * * *'" The improper argument in the Colquett case, which was held to be ineradicable was, "* * * `whose money is the boy trying to get?' * * *" and "* * * `wouldn't you feel that the people you paid to protect you should take care of this child in some way?'"
The evidence elicited from the witness in the instant case was "it was an insurance company, I don't know his name." The prejudicial effect of the above evidence was in no sense attempted to be cured or eradicated by the trial judge by excluding the evidence from the jury and giving proper instructions. Instead, the trial judge emphasized *784 the fact of insurance by refusing a timely motion to exclude the evidence and by saying, "You don't have to use his occupation, if you know his name you may say." (Emphasis supplied.)
The effect of counsel's improper argument to the jury, "after they collect $30,000 Murphy Thorn and I will still be friends" in the instant case, when considered along with the prejudicial evidence regarding insurance must perforce work a reversal of the case. The motion for a new trial should have been granted.
The errors pointed out above make it unnecessary to consider the other assignments of error.
Reversed and remanded.
GOODWYN, MERRILL and SPANN, JJ., concur. | November 15, 1956 |
cee18ee8-2b9e-4492-a8d5-0ede31bcdaf9 | Carter v. Stringfellow | 306 So. 2d 273 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 273 (1975)
Beverly CARTER et al.
v.
Earl Martin STRINGFELLOW, Sr., and Earl Martin Stringfellow, Jr.
S.C. 644.
Supreme Court of Alabama.
January 16, 1975.
James R. Davis, Birmingham, for appellants.
Stone, Patton & Kierce, Bessemer, for appellees.
William M. Acker, Jr., Birmingham, amicus curiae.
*274 HARWOOD, Justice.
This is an appeal from a decree entered in a declaratory action wherein the complainants (appellants here) sought a declaration concerning the character and extent of certain easements and restrictions as to the use of a lake, as well as the extent of appellants' property interests in said lake. The lake was created by the respondents or their predecessors in title, and the complainants are purchasers of lots in a subdivision adjacent to the lake, which subdivision was developed by the respondents or their predecessors in title.
The residential lots involved in this case were located in a subdivision known as Paradise Acres. This subdivision abuts on a lake known as Paradise Lake. Mattie L. Stringfellow, now deceased, was the owner and subdivider of Paradise Acres when a plat of that subdivision was recorded. Earl Martin Stringfellow, Sr., one of the appellees, was the sole beneficiary under the last will and testament of Mattie L. Stringfellow, his wife, and by virtue of Mattie L. Stringfellow's will, is now the owner of the lake and the undeveloped area around the lake.
The Paradise Acres subdivision was subject to certain restrictions which were recorded in the office of the Probate Judge of Jefferson County, Alabama, on 9 July 1959, by Mattie L. Stringfellow. The pertinent portions of the instrument setting forth the restrictions and conditions of the owner are as follows:
It also appears that in a map or plat of the Second Sector of Paradise Acres, which Sector is nearest the lake, shows that a strip of land of varying width, depending upon the distance between the edge of the lake and the boundaries of the lots contiguous to the strip, is designated as "Easement for Access to Lake." This plat was recorded in the Office of the Probate Judge of Jefferson County on 6 May 1960.
Appellants filed a bill for declaratory judgment alleging that the appellees were the owners of Paradise Lake, subject to the rights of appellants in said lake. The bill further alleged that appellees have caused a portion of the land surrounding the lake to be zoned for condominiums and town houses and that appellees had advised appellants that the use and control of the lake would be turned over to the developer of the condominiums. It was also alleged that Earl Stringfellow, Jr., acted as his father's agent in development of the subdivision and that he had represented to appellants that the development of all the land *275 surrounding the lake would be in a manner similar to the single family residential development which had already been completed. Appellants also alleged that the easement along the rear of the lots (which bordered the lake) was to be utilized for the installation of sewer lines to serve the condominium development, although such easement did not expressly authorize installtion of utilities.
The appellants' bill for declaratory judgment sought a decree declaring that appellants and other owners of lots in the Paradise Acres subdivision be declared the owners of Paradise Lake, that the number of users of said lake be limited to the numbers which would result from a development of the remaining portion of the "Stringfellow property" in a manner similar to the present development (single family residential use), that Earl Stringfellow, Sr., and Earl Stringfellow, Jr., be held liable in damages for any loss sustained by reason of a change in the use of remaining properties surrounding Paradise Lake in violation of the representations made to appellants as to the use of the lake, and that the rights of the Stringfellows and their successors in title in the easement surrounding the lake be limited to ingress and egress only.
The parties stipulated that the issues for trial would be limited to the following: (1) whether there was a right to construct a sewer within the twenty-foot strip above the water line along the northerly edge of the lake without obtaining a sewer easement, (2) whether a sewer could be laid within the lake bed itself, and (3) the rights of the parties to use the lake and whether there were any limitations thereon as to appellants or appellees.
After a full hearing, the Chancellor found and decreed: (1) that the twenty-foot easement from the water's edge created by the "restriction" document filed by Mattie L. Stringfellow was for pedestrian travel only and would not permit a sewer line to intrude into the boundaries of the lots of the appellants, (2) that the "Easement for Access to Lake" strip imposed by the recorded plat of 6 May 1960, would permit Mattie L. Stringfellow and her successors in title to lay a sewer line partly in the strip itself and partly in the lake bed, in that Mattie L. Stringfellow and her successors in title owned in fee simple all of the property outside of the lot lines of the lots not sold, and (3) there was no evidence of violations by the appellees of any of the restrictions as to the use of the lake.
Appellants' first assignment of error is predicated upon the refusal of the trial court to allow Charles E. Allen, one of the appellants, to testify concerning any representations made to him by Earl Stringfellow, Jr., before or at the time of the delivery of the deed to a certain lot in Paradise Acres. We find no error in this action by the court.
Any such representation concerning an interest in land is ordinarily deemed to be covered by our Statute of Frauds. (Title 20, § 3, Code of Alabama 1940.)
It has been held by this court that an easement is an interest in land and cannot be created by parol. Roberts v. Monroe, 261 Ala. 569, 75 So. 2d 492; Hicks v. Swift Creek Mill Co., 133 Ala. 411, 31 So. 947, 57 L.R.A. 720. Restrictions on the use of land are also subject to the Statute of Frauds. Marsh v. Cheeseman, 221 Ala. 390, 128 So. 796; Scheuer v. Britt, 217 Ala. 196, 115 So. 237. As was stated by this court in Marsh v. Cheeseman, supra, 128 So. p. 798:
In Roberts v. Monroe, supra, the complainants were seeking to establish an implied grant of an easement in an alleyway. The following questions were asked of a witness in that case:
*276 "Q. I will ask you if at the time you purchased that alley you were told that the use of the alley would pass with the property?"
This court upheld the action of the trial court in sustaining objections to these questions on the following grounds:
Appellants, however, contend that we are presented with facts calling for the application of the doctrine of promissory estoppel, or estoppel in pais, which would take this case out of the Statute of Frauds. This court in Clanton v. Scruggs, 95 Ala. 279, 10 So. 757, 758, a case cited by appellants in favor of this proposition, discussed in detail the doctrine of estoppel in pais. In that opinion this court observed:
The representations allegedly made to appellants were that the development of all the land surrounding the lake would be in a manner similar to the single family residential development which had already been completed. We do not see how such representations can form the basis for an estoppel in pais. This was a mere promise to do something in the future. In other words, the developer merely promised to build similar structures in the future.
Appellants contend, however, that there is a misrepresentation as to "past or present facts." It is argued that the "past or present facts" consist of the existence, at and before any representations were made, of a single family residential plan of development. But there was no misrepresentation or concealment as to the present state of facts, but an alleged misrepresentation only as to the future, i. e., that the developer would continue to construct only single family structures in the future.
Appellants also challenge that portion of the final decree of the trial court which decreed that a sewer line could be installed or laid in either the "easement for access to the lake" or in the lake itself, provided it was laid with reasonable care and so long as the shoreline and the lake itself were restored to a condition so as to not affect the access to the lake. We find no error in this portion of the decree.
The title to the land on which the easement and lake were situated remained in Mattie L. Stringfellow and her successors. The right to use the land on which an easement has been dedicated remains in the owner of the servient estate so long as such right does not conflict with the purpose and character of the easement. See 25 Am.Jur.2d, pp. 494-495, and Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868, 46 A.L.R. 1459.
The trial court in its decree stated that the sewer line must be laid with reasonable care and the lake must be restored to a condition so as to not materially affect the access to the lake. If this decree is complied with, there will be no interference with the appellants' access to the lake or *277 with the appellants' privileges to use the lake.
What we have written above is dispositive of this appeal and renders unnecessary a discussion of appellants' additional assignments of error. The decree is due to be affirmed, and it is so ordered.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and FAULKNER, JJ., concur. | January 16, 1975 |
9af4ca1f-b93a-4fcf-8919-6967398f0ae3 | McBee v. McBee | 91 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 675 (1956)
W. T. McBEE
v.
Carrie McBEE.
6 Div. 853.
Supreme Court of Alabama.
December 21, 1956.
*676 A. H. Nichols and J. L. Drennen, Birmingham, for appellant.
Morton & Hesse and Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.
SPANN, Justice.
This bill was filed by the widow of a decedent with the purpose of assigning dower and homestead in certain land owned by the decedent prior to the marriage. To this end, the bill sought to cancel the deed to such land alleged to have been executed by decedent before marriage, because the deed was made in contemplation of marriage with complainant and in fraud of her prospective marital rights in such land. This appeal was taken by the respondent from a decree which cancelled the said deed and made the land subject to dower and homestead rights of the complainant.
The deed in question was executed by the decedent, Thomas M. McBee, to his son of a former marriage, W. T. McBee, the appellant. The deed executed the 1st day of October, 1943, conveyed 76 acres of land, on a recited consideration of $1 and other good and valuable consideration.
Complainant, Mrs. Carrie McBee, and Thomas M. McBee were married October 2, 1943. They lived together until the death of Mr. McBee on September 24, 1953.
The bill charges that at the time Thomas M. McBee proposed marriage with the complainant he represented that he owned said land and upon their marriage that they would reside thereon as a home place; that the complainant relied upon this representation and married the said Thomas M. McBee. The bill then alleges that the deed was executed without the knowledge of the complainant on the day before their marriage, without consideration, and with the intent of the said Thomas M. McBee to defeat or prevent complainant's rights of dower and homestead from attaching to said land.
*677 In the alternative, the bill avers that the deed was executed without complainant's knowledge, with the intent and purpose of said Thomas M. McBee and respondent to defeat complainant's rights of dower and homestead in said land. Complainant further avers that she had no knowledge of the fact of the execution and delivery of said deed until subsequent to the death of her husband. The allegation is also made that the respondent knew of complainant's forthcoming marriage to Thomas M. McBee. The deed was included in the bill by reference to complainant's exhibit "A." Thomas M. McBee reserved a life estate in the property.
The theory upon which this bill was brought is that a conveyance of land by the husband, executed in contemplation of marriage, without the knowledge of his intended wife, and intended to prevent her rights of dower and homestead from attaching to his lands, is a fraud upon the rights of the wife on marriage, against which a court of equity will grant relief. Dorrough v. Grove, 257 Ala. 609, 60 So. 2d 342; Anderson v. Lewter, 232 Ala. 375, 168 So. 171; Sibley v. Kennedy, 224 Ala. 354, 140 So. 552; Lewis v. Davis, 198 Ala. 81, 73 So. 419; Cannon v. Birmingham Trust & Savings Co., 194 Ala. 469, 69 So. 934; Nelson v. Brown, 164 Ala. 397, 51 So. 360; Kelly v. McGrath, 70 Ala. 75; 28 C.J.S., Dower, § 58, pages 129-131; 17 Am.Jur., Section 107, page 764.
The respondent in bringing this appeal assigns some fourteen grounds of error. The first assignment of error is that the court erred in overruling the demurrers to the bill of complaint. This is sufficient as an assignment of error as it is not necessary that a separate assignment of error be made as to each ground of demurrer relied on. Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509; Copeland v. Swiss Cleaners, Inc., 255 Ala. 519, 52 So. 2d 223. We treat, however, only those grounds of demurrer argued in the brief of the appellant. Cook v. Whitehead, 255 Ala. 401, 51 So. 2d 886.
The sole question argued in appellant's brief under assignments of error one through three is whether the allegations of the bill of complaint meet the requirements of good pleading so as to state a good cause of action against the respondent.
In the case of Dorrough v. Grove, supra [257 Ala. 609, 60 So. 2d 343], where the question of the sufficiency of a bill to set aside deeds executed by the intended husband on the eve of marriage, as a fraud upon the marital rights of the intended wife, we said:
The case of Williams v. Williams, 238 Ala. 637, 193 So. 167, 168, has this to say concerning the sufficiency of a bill to set aside a voluntary conveyance as a fraud on creditors:
In the case before us, it is alleged that the conveyance was made without consideration, without the knowledge of the complainant; that the conveyance was made in contemplation of marriage with the intent of the deceased and respondent to deprive the complainant of her rights in said property after the marriage. Considered in the light of Dorrough v. Grove and Williams v. Williams, supra, we think that fraud has been sufficiently alleged in the bill of complaint.
Assignments of error four through ten are that the court erred in granting complainant relief on the evidence in the cause. There was an open conflict in the evidence. The testimony, however, was taken orally before the trial court, sitting without a jury. The trial court saw and heard the witnesses and granted the complainant relief. The findings of a trial court, for reasons ofttimes stated, are to be accorded the same presumptions as the verdict of a jury and will not be disturbed on appeal unless plainly and palpably wrong or against the great preponderance of the evidence. Pritchett v. Wade, 261 Ala. 156, 73 So. 2d 533; Halman v. Bullard, 261 Ala. 115, 73 So. 2d 351; Sparkman v. Williams, 260 Ala. 472, 71 So. 2d 274.
We have carefully considered the evidence, its several tendencies and reasonable inferences. A detailed recital or discussion of the evidence would serve no good purpose. Based upon the rule of review as stated, we conclude the findings of the trial judge should not be disturbed.
Assignment of error number eleven is that the trial court erred in overruling the objection of the appellant (respondent) to the following question asked the witness, Mrs. McBee:
The appellant argues that this evidence was not admissible. The record reveals that the objection was made after the question was answered. Therefore, there being no motion to exclude, the court will not be put in error on appeal. Jones v. Lamb, 239 Ala. 225, 194 So. 652.
Assignments of error twelve and thirteen are that the trial court committed reversible error in sustaining objection of the complainant *679 (appellee) to the following questions propounded to W. T. McBee:
Title 7, Section 433, Code 1940, states that no person having a pecuniary interest in the result of a suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding. The case of Thomas v. Tilley, 147 Ala. 189, 41 So. 854, is one involving the construction of this statute. The bill in that case set up a claim that J. W. Thomas, the father of the complainant, in his lifetime gave to the complainant a certain note and mortgage, which was admitted to be due at the time suit was brought. The complainant sought to establish the transfer and foreclose the mortgage. The widow and heirs of J. W. Thomas controverted the fact of the assignment. Testimony of the complainant was objected to as violative of Section 1794 of the Code of 1896, which is presently Title 7, Section 433, Code 1940. The court held that the son could not testify as to the statements had with his father about the assignment.
The estate of the deceased is interested in the outcome of this suit. The appellant (respondent) has an interest in this suit which is opposed to the interest of the estate. Any statements, therefore, between the appellant and the deceased would fall within the rule of the Tilley case, supra, and be in violation of Title 7, Section 433, Code 1940. The court properly sustained the objections to the questions.
Assignment of error number fourteen is that the court erred in overruling the application for rehearing. This assignment of error is waived as it is not sufficiently argued in the appellant's brief. Gray v. First National Bank of Birmingham, 263 Ala. 361, 82 So. 2d 528; Simpson v. Birmingham Elec. Co., 261 Ala. 599, 75 So. 2d 111.
There is no error in the record. The complainant under the rule of Dorrough v. Grove, supra, was entitled to the relief sought in the bill of complaint. The decree of the lower court will be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | December 21, 1956 |
b351888a-0f4d-4bd3-b0ae-560d11c9d86d | Orton v. Cheatham | 309 So. 2d 94 | N/A | Alabama | Alabama Supreme Court | 309 So. 2d 94 (1975)
Betty Gay ORTON
v.
Helen Gay CHEATHAM et al.
SC 889.
Supreme Court of Alabama.
February 27, 1975.
Rogers, Howard, Redden & Mills, Birmingham, for appellant.
Edward L. Hopper, Huntsville, for appellees.
SHORES, Justice.
Mrs. Lonia Violet Gay died in Houston, Texas, on May 14, 1973. She left surviving her three children, Helen Gay Cheatham, Betty Gay Orton, and Truman Gay.
On May 22, 1973, Betty Gay Orton filed a petition to probate a will of Mrs. Gay in the Probate Court of Jefferson County, Alabama, which petition alleged that, at the *95 time of the death of Mrs. Gay, she was an inhabitant of Jefferson County, Alabama.
To this petition, Helen Gay Cheatham filed a plea in abatement contending that the Probate Court of Jefferson County lacked jurisdiction to probate the will of Mrs. Gay, in that the decedent was an inhabitant of Madison County, Alabama, at the time of her death; and that, therefore, Madison County had jurisdiction and Jefferson County did not.
A hearing was held on this plea, testimony taken, and a decree entered August 9, 1973, by the Probate Court of Jefferson County, specifically finding "That Lonia Violet Gay was an inhabitant of Jefferson County, Alabama, within the meaning of Title 61, Section 35, Code of Alabama 1940 (Recompiled 1958), at the time of her death on May 14, 1973."
The plea in abatement of Helen Gay Cheatham was, by that decree, overruled and denied.
No effort to review or set aside this finding was made.
In the meantime, before the decree was entered in the Probate Court of Jefferson County overruling the plea in abatement and finding that the decedent was a resident of Jefferson County at the time of her death, Truman Gay filed a petition to probate another will of Mrs. Gay in the Probate Court of Madison County. This petition was filed June 20, 1973.
On September 11, 1973 (more than thirty days after the decree was entered by the Probate Court of Jefferson County), Mrs. Cheatham (plaintiff in the case before us and hereinafter referred to as "plaintiff") filed a petition to remove the administration of the estate to the Circuit Court of Madison County. This petition was amended October 12, 1973, to add the Probate Judge of Madison County as a party complainant, and alleged that the will which had been offered for probate in Jefferson County by Betty Gay Orton had been revoked by the will offered for probate in Madison County. It was further alleged that Madison County had exclusive jurisdiction to probate the last will of Lonia Violet Gay, in that prior to her death she had fixed her domicile as Huntsville, Madison County, Alabama.
The complaint filed by Mrs. Cheatham in the Circuit Court of Madison County averred that an actual controversy existed between the complainants (Mrs. Cheatham and the Probate Judge) and Betty Gay Orton as to whether the Probate Court of Madison County or Jefferson County was the proper jurisdiction for probating the last will of the decedent, and that the complainants had no other adequate remedy to resolve the issue "because the Probate Court of Jefferson County, Alabama, may act to probate a revoked will ... thus acting without proper jurisdiction..."
This complaint also sought a temporary restraining order against Betty Gay Orton and her attorney, ordering and directing that they cease and desist directly from taking any action in connection with establishment or consummation of all proceedings relating to the probate and administration of any alleged will of decedent. The complaint sought a declaratory judgment finding that the decedent was domiciled in Madison County at the time of her death, and that the Probate Court of Jefferson County was without jurisdiction to probate the will offered there.
On the same day as filed, the Circuit Court of Madison County issued the temporary restraining order sought and set the cause for hearing on November 7, 1973 (subsequently continued to December 6, 1973).
To this complaint, Mrs. Orton (hereinafter referred to as defendant) filed a motion to dismiss, which was overruled. She then filed an answer denying that the will offered for probate in Jefferson County had been revoked and stating that the issue of place of residency or domicile of the decedent had been previously litigated in the *96 Probate Court of Jefferson County; and that an order had been entered, after a hearing in which the question of domicile was the only issue, finding that the decedent was domiciled in Jefferson County at the time of her death.
A trial on the complaint, as amended, and this answer was held, which resulted in a final decree dated February 28, 1974, holding:
1. That the testatrix was domiciled in Madison County at the time of her death;
2. That the will offered for probate in Madison County was the final will of the decedent, and that the prior will offered for probate in Jefferson County had been revoked;
3. That the temporary restraining order be made final; and
4. Ordering that the Probate Court of Madison County proceed with the probate of the will offered there.
From this decree, the defendant brings the present appeal. Although there are several assignments of error, the thrust of defendant's argument on appeal is that the Madison County Circuit Court erred in denying her motion to dismiss, since the issue of domicile had been determined between these parties in the Probate Court of Jefferson County and it was error to permit a relitigation of that issue. We agree. Title 61, § 35, Code of Alabama 1940, in part, provides:
The statutory jurisdictional averment was made in the petition for probate filed in Jefferson County. Issue was joined on that question and a hearing held, which resulted in a finding by the Probate Court of Jefferson County that the decedent was an inhabitant of Jefferson County at the time of her death. For more than one hundred years, this court has consistently held that "... where the jurisdiction of a court depends upon a fact which such court is required to ascertain and settle by its decision, as a preliminary to its jurisdiction ... the decision of the court as to the jurisdictional fact cannot collaterally be called in question. (Citations Omitted)" Wyatt's Adm'r v. Steele, 26 Ala. 639, 650 (1855). It is equally well-settled in this state that the court first assuming jurisdiction of a cause, the subject matter being within the competency of such court, must be allowed to pursue and exercise its jurisdiction to the exclusion of all coordinate tribunals. Beasley et al. v. Howell, Adm'r, 117 Ala. 499, 22 So. 989 (1897).
McDonnell v. Farrow, 132 Ala. 227, 31 So. 475 (1901), speaks squarely to the question before us. There, a petition was filed in the Probate Court of Madison County to probate the will of one Miss Fennell. The petition alleged that the testatrix was, at the time of her death, an inhabitant of Madison County. The court noted that this averment was necessary under the statute (now Title 61, § 35) to impart regularity to the proceeding to probate the will in that court. There this court said:
In Ambrose v. Vandeford, 277 Ala. 66, 167 So. 2d 149 (1964), a petition was filed in the Probate Court of Jefferson County seeking to probate the will of petitioner's father. A plea in abatement was filed asserting that the testator was a resident of Bibb County at the time of his death. A hearing was held, at which witnesses testified. *97 The probate court overruled the plea in abatement finding that the testator was a resident of Jefferson County at the time of his death. In that case, an appeal was taken from the probate court's order to the Circuit Court of Jefferson County under the provisions of Title 7, § 775 et seq., Code of Alabama 1940, which affirmed the probate court. Appeal to this court was from the latter order.
The procedure followed in Ambrose is the proper one. Here, Mrs. Cheatham could have appealed the order of the Probate Court of Jefferson County finding that her mother was domiciled in that county, after a hearing on her plea in abatement. She did not do that. Rather, she ignored that order and filed the proceeding in Madison County, which resulted in the decree, which is the subject of this appeal.
The Circuit Court of Madison County erred in permitting these parties to relitigate the issue of the domicile of Mrs. Gay. That issue has been litigated between them in the Probate Court of Jefferson County and no steps were taken to review that determination. Therefore, the conclusion reached in the Probate Court of Jefferson County is conclusive on that issue, White v. Hilbish, 282 Ala. 498, 213 So. 2d 230 (1968), and cannot be collaterally attacked. Alabama Digest, Judgment.
Plaintiff in this case apparently sought to defeat the res judicata effect of the Jefferson County decree by adding the Probate Judge of Madison County as a party complainant in her action. Since the pleading adding the party fails to disclose any interest of the probate judge in the litigation, we must assume that the only interest or connection of this party with the proceeding is in her official capacity as the judge of the court in which the will was offered for probate. The requirement that there must be a substantial identity of parties to make a judgment res judicata has not been altered by this attempted addition of parties. 46 Am.Jur.2d, Judgments, § 531.
In other words, the amendment adding the judge of probate as a party in the instant case did not effectively add an additional party so as to defeat the operation of the res judicata principle.
We do not consider the question of the validity of the will offered for probate in Jefferson County. That question is not before us.
The decree appealed from is reversed and one is here rendered in favor of the appellant.
Reversed and rendered.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur. | February 27, 1975 |
7de5284a-dda0-43be-bb26-f05594dabf08 | Clark v. Hudson | 93 So. 2d 138 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 138 (1956)
J. J. CLARK
v.
Durel HUDSON.
4 Div. 875.
Supreme Court of Alabama.
December 21, 1956.
Rehearing Denied March 14, 1957.
*139 Albert L. Rankin and Albrittons & Rankin, Andalusia, for appellant.
Frank J. Tipler, Jr., Andalusia, for appellee.
SIMPSON, Justice.
The plaintiff recovered a judgment against the defendant in a personal injury action in the amount of $11,000. The case *140 went to the jury on the complaint of simple negligence, the defendant's plea of recoupment and a plea of general issue. We will treat the propositions advanced as error in the order argued in appellant's brief.
Appellant contends that the appellee was guilty of contributory negligence thereby entitling him to the affirmative charge. The evidence on this issue was not entirely free of doubt or adverse inference so the question was properly submitted to the jury. Alabama Power Co. v. Irwin, 260 Ala. 673, 72 So. 2d 300; Capitol Motor Lines v. Billingslea, 246 Ala. 501, 21 So. 2d 240, 157 A.L.R. 1207; Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 633, 108 So. 596.
It is next insisted that the verdict was excessive. There was evidence for the plaintiff which showed compensable damages as follows:
Back injury (which may be permanent).
Physical pain and suffering.
Loss of earnings.
Damage to automobile$800.
Medical expenses$463.
The rule has often been stated that a jury award of damages cannot be disturbed unless so excessive or grossly inadequate as to indicate passion, prejudice, corruption or mistake. Montgomery City Lines v. Davis, 261 Ala. 491, 74 So. 2d 923; Alabama Great Southern R. Co. v. Baum, 249 Ala. 442, 31 So. 2d 366; Luquire Funeral Homes Ins. Co. v. Turner, 235 Ala. 305, 178 So. 536. In view of the compensable damages shown and the possibility of a permanent back injury with attendant pain and suffering, we are unwilling to say that the jury's verdict was so tainted.
It is argued that the verdict was contrary to the great weight of the evidence. We will not burden the opinion with a recital of much of the facts, but are content to say that the verdict was sustained by the evidence. The evidence for the plaintiff goes to show that the defendant, a rural mail carrier, was in the middle of the highway not looking ahead but looking at some letters in his hand and proceeding across the highway to a mailbox on the left side, when plaintiff coming in the opposite direction at a lawful rate of speed ran into the ditch on the side of the road in order to avoid the collision. Therefore, we cannot say with any degree of certainty the verdict was against the great weight of the evidence. Suits v. Glover, 260 Ala. 449, 71 So. 2d 49, 43 A.L.R.2d 465; Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546. And when the presiding judge, as here, has refused to grant the new trial, the presumption in favor of the correctness of the verdict is thereby strengthened. Hamilton v. Browning, supra; Smith's case, supra.
The appellant complains that the matter of insurance was improperly injected into the trial of the case in three instances. For an account of the first, we quote from the record.
The plaintiff was entitled, upon his seasonable and proper motion, to have the jurors, from whom the trial jury was to be selected, qualified as their relation to, or interest in, any insurance company which would be liable, in whole, or in part, for any judgment that might be rendered against the *141 defendant. The assigned errors directed at the court's rulings in the qualification of the jurors are, therefore, not well taken. Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381; Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So. 2d 212.
The second mention of insurance was by the plaintiff while he was on the stand. In response to an innocent question the plaintiff said:
The court sustained the defendant's objection but refused to declare a mistrial. No motion was made by the appellant for any other action or to exclude the matter from the jury. When insurance is injected into the case by irresponsive testimony to a proper question, our cases hold that the prejudicial effect of such evidence may be eradicated by proper instructions and that it is not error for the trial court to refuse a mistrial. Wagnon v. Patterson, supra; Cannon v. Scarborough, 223 Ala. 674, 137 So. 900. It is to be observed also that in the absence of a motion to exclude the alleged prejudicial matter and an adverse ruling by the trial court upon said motion nothing is invited for review. Thorne v. Parrish, Ala., 90 So. 2d 781, and cases cited.
The third alleged injection of insurance was in the appellee's argument to the jury to the effect that the appellant "wouldn't have to pay for it." The appellant objected to the argument and the trial judge instructed the jury not to consider "that part of argument of counsel that Mr. Clark wouldn't have to pay for it." That ruling of the trial court was in the appellant's favor, and the appellant did nothing further to invoke a ruling from the court on the alleged improper argument, therefore, the improper argument is not up for review.
Had the appellant assigned the improper argument as grounds for his motion for new trial and gotten an adverse ruling of the trial judge on his motion, then said adverse ruling would be subject to review.
Referring to a similar argument in Pearson v. Birmingham Transit Co., 264 Ala. 350, 353, 87 So. 2d 857, 859, we said:
As indicated above, the appellant in the instant case did not include the prejudicial argument as grounds in his motion for new trial. Improper argument of counsel is not before us on appeal, when there was no adverse ruling of the trial court on the point, either during the trial or on motion for a new trial. Washington v. State, 259 Ala. 104, 65 So. 2d 704. Only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal. Central of Georgia Ry. Co. v. McDaniel, 262 Ala. 227, 78 So. 2d 290.
Assignment of errors 1, 31 and 32 are addressed to the court's action in permitting counsel for the plaintiff to display before the jury and use in his final argument a prepared chart itemizing appellee's purported damages. This chart was about four feet high and two feet wide, with prominent letters and figures thereon, showing a breakdown of the total damages claimed by the plaintiff.
As far as we know this court has never passed upon the use of such a chart, but we *142 see no difference in having the alleged elements of damages written on a prepared chart and having the same written upon a blackboard. We have approved the use of a blackboard showing claimed damages by counsel for the plaintiff in his argument to the jury. Lauderdale County Cooperative v. Lansdell, 263 Ala. 557, 83 So. 2d 201. The use of a blackboard for the purpose of illustrating testimony has been held to be within the sound discretion of the trial court. Crocker v. Lee, 261 Ala. 439, 74 So. 2d 429. Properly used, the graphic illustration of testimony by maps, charts, diagrams, etc., has been said to be of aid to the jury. Crocker v. Lee, supra.
Speaking of the use of a drawing that was not in evidence by counsel in his argument to the jury in Hardy v. Randall, 173 Ala. 516, 521, 55 So. 997, 998, we stated:
The Mississippi Supreme Court has approved the use of charts similar to the chart used in the instant case. Brown-Miller Co. v. Howell, Miss., 79 So. 2d 818; Four-County Electric Power Ass'n v. Clardy, 221 Miss. 403, 73 So. 2d 144, 44 A.L.R.2d 1191. In view of the fact that the trial court thoroughly instructed the jury as to their consideration of the chart, no abuse of the trial court's discretion is shown in allowing use of the chart in the instant case.
Assignment of error number 9 complains of the admission into evidence, over the objection of the appellant, of the mortality tables. Where there is evidence from which there is a reasonable inference that plaintiff's injuries are permanent, the American Experience and Commissioners Standard Ordinary Mortality tables as printed in the bound Acts of Alabama are admissible in evidence. The factfinders could have drawn such an inference in the case sub judice making the mortality tables admissible. Louisville & N. R. Co. v. Steel, 257 Ala. 474, 59 So. 2d 644; Southern Ry. Co. v. Cunningham, 152 Ala. 147, 44 So. 658; Birmingham Mineral R. Co. v. Wilmer, 97 Ala. 165, 11 So. 886; Acts of Alabama, Vol. I, 1953, Act No. 457, page 562.
The last point to be considered is the exclusion of the testimony of Dr. Palmer, orthopedic surgeon, of what Dr. Stickley, radiologist, not a witness in the case, had told him about the plaintiff's injuries. Dr. Palmer had some x-rays taken of plaintiff's back and requested Dr. Stickley to give him an opinion with respect to these x-rays and interpret them for him. This Dr. Stickley did, and his written opinion was a part of Dr. Palmer's files as a part of the history of the case. On seasonable objection by the plaintiff the court excluded this testimony as hearsay. The holding was proper. The recent case of Prince v. Lowe, 263 Ala. 410, 82 So. 2d 606, settled the law in this state that testimony of this character as well as testimony of what a board or committee of examiners might have decided with respect to a person's injuries was hearsay. Our early case of Hussey v. State, 87 Ala. 121, 6 So. 420, ruled to this effect, whereas our later case of Grammer v. State, 239 Ala. 633, 196 So. 268, held admissible testimony of a witness physician as to the conclusions of the members of the medical staff of a hospital as to the defendant's condition as part of the res gestae where such conclusions were expressed in staff conferences and examinations of defendant. While the writer of this opinion advocated sustaining the holding of Grammer in Prince v. Lowe, the majority of the court held to the view that Grammer should be overruled and the Hussey case followed. In order to settle the matter it is now the view of the court that such testimony is inadmissible as hearsay and should be so ruled on the basis of the Hussey and Prince cases.
We find no error to reverse.
Affirmed.
*143 All the Justices concur except LIVINGSTON, C. J., who still holds to the view that the Grammer case should be followed and the holding of Prince v. Lowe and Hussey be repudiated. | December 21, 1956 |
9cdb2e47-9fb1-42dd-ac90-42ff94db5118 | Ellis v. Black Diamond Coal Mining Co. | 90 So. 2d 770 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 770 (1956)
Nellie ELLIS as Administratrix,
v.
BLACK DIAMOND COAL MINING CO.
6 Div. 777.
Supreme Court of Alabama.
November 15, 1956.
*771 Lipscomb & Brobston, Bessemer, and Wm. Mitch and D. G. Ewing, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Birmingham, and Huey, Stone & Patton, Bessemer, for appellee.
GOODWYN, Justice.
On May 28, 1949, Nellie Ellis, as administratrix of the estate of Louis Ellis, deceased, appellant, brought suit in the circuit court of Jefferson County under the homicide statute, Code 1940, Tit. 7, § 123, against the Black Diamond Coal Mining Company, appellee. In her complaint, at that time consisting of one count, she alleged that her intestate's death was caused by silicosis contracted while working in the defendant's coal mine, and that his death was a direct result of the defendant's negligence in failing to keep the air in the mine reasonably free of silica dust. Trial of the case resulted in a verdict and judgment in favor of plaintiff. On appeal here the case was reversed and remanded, Black Diamond Coal Mining Co. v. Ellis, 256 Ala. 72, 53 So. 2d 593, on authority of Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So. 2d 586, 593. The opinion does not disclose the particular ruling or ground on which the reversal was based. In the Woodward Iron Co. case this court held, in construing the homicide statute, § 123, Tit. 7, supra, "that the legislature did not intend to create a cause of action occurring at the death of the injured party, if at that time the injured party was unable to maintain a suit for personal injuries based on that occurrence by reason of the fact that either he had already sued and recovered a judgment on account of it or he had accepted full satisfaction and release of the claim, or if his contributory negligence proximately caused his injury, or if he permitted the claim to be barred by the statute of limitations." [Emphasis supplied.] That point was also involved in the case now before us on first appeal.
On remandment the plaintiff amended her complaint by adding counts 2 and 3. Demurrer to each count of the amended complaint being sustained, plaintiff took a non-suit and brought this appeal to review the rulings on the demurrers. It appears to be recognized by the parties in their argument here that the same question decided *772 in Woodward Iron Co. v. Craig, supra, as above noted, is presented by the demurrers. Extensive argument is addressed to appellant's insistence that that opinion should be changed. However, a preliminary point raised by appellant prevents us from getting to a consideration of that insistence. It is contended that since this is an action at law, the defense of the statute of limitations must be raised by plea and not by demurrer. In this we concur.
It is a long-established rule that where the statute of limitations is sought to be interposed as a bar to an action at law it must be specially pleaded and cannot be set up by demurrer to the complaint. Sharpe v. Booker, 263 Ala. 592, 594, 83 So. 2d 313; Sibley v. Bowen, 222 Ala. 13, 14, 130 So. 547; Sovereign Camp, W. O. W. v. Carrell, 218 Ala. 613, 615, 119 So. 640; Pyle v. Pizitz, 215 Ala. 398, 402, 110 So. 822; Russell v. Garrett, 204 Ala. 98, 101, 85 So. 420; Mayor and Aldermen of City of Huntsville v. Ewing, 116 Ala. 576, 584, 22 So. 984; Huss v. Central Railroad & Banking Co., 66 Ala. 472, 475. The rule is stated in the Huss case as follows:
The rule is different in equity. Smith v. Hart, 259 Ala. 7, 9, 65 So. 2d 501; Maryland Casualty Co. v. Seymore, 233 Ala. 464, 465, 172 So. 620; Mayor and Aldermen of City of Huntsville v. Ewing, 116 Ala. 576, 584, 22 So. 984, supra.
We are dealing here with a demurrer to each count taking the point that it shows on its face that the right of action in plaintiff's intestate was, at the time of his death, barred by the statute of limitations of one year. Code 1940, Tit. 7, § 26. The position taken by appellant is that this defense cannot be set up by demurrer but must be made by special plea. Appellee argues that the Woodward Iron Co. case holds that the question may be determined on demurrer to the complaint. It is said that the following from the opinion in that case supports its position, viz.:
It seems clear, from a consideration of the entire opinion in the light of the record *773 in the case, that it was not intended to hold that the defense of the statute of limitations can be made by demurrer when the complaint shows on its face that plaintiff's intestate, at the time of his death, could not have maintained an action against defendant because his right of action at that time was barred by the statute of limitations. It appears to be recognized by appellee that this precise question was not decided in Woodward Iron Co. v. Craig. In its brief it is stated as follows:
The question being discussed in the quotation from the Woodward Iron Co. case related to the provision in the homicide statute, § 123, Tit. 7, supra, which fixes two years "from and after the death of the testator or intestate" as the period in which suit must be brought by the personal representative. The holding was that a complaint brought under the homicide statute would be subject to demurrer if it fails to show that it was brought within the two-year period after the death of plaintiff's intestate. In other words, the complaint must affirmatively show that the suit was brought by the personal representative within that time, as required by § 123, Tit. 7, supra. The statute of limitations applicable to the right of a plaintiff's intestate, as of the time of his death, to maintain a cause of action was not there being discussed. If plaintiff's intestate was barred at the time of his death from maintaining an action because not commenced by him within the period of one year after the cause of action accrued it was by virtue of the applicable statute of limitations. § 26, Tit. 7, supra. Such defense is a defense of the statute of limitations and under the authority of our cases of long standing, cited above, it cannot be made by demurrer in an action at law. That it was not intended to hold otherwise in the Woodward Iron Co. case is borne out by the treatment given plea 9 immediately following the portion quoted above. Although not in Code form that plea is nevertheless a plea of the statute of limitations of one year and makes the same defense which is sought to be made by demurrer in the case now before us.
The statute of limitations, unlike the limitation prescribed in the homicide statute, does not impose a condition precedent to the right of action. 54 C.J.S., Limitations of Actions, § 344, note 49, p. 471. The bar of the statute of limitations is a matter of defense to be interposed by plea. It is not necessary for the plaintiff to anticipate such defense and plead facts in avoidance thereof. Even though a complaint at law shows on its face that the cause of action is barred by the statute of limitations the defense of the statute cannot be taken by demurrer. It can only be done by special plea. And it has been held that whether an action is barred by the statute of limitations is not within the issues presented by a plea of the general issue, but must be specially pleaded. In Sharp v. Clopton, 218 Ala. 140, 141, 117 So. 647, 648, it was said:
Since there was error in the rulings which caused plaintiff to take a non-suit, the non-suit is set aside and the cause *774 reinstated and remanded for such further proceedings as the parties may be advised.
Reversed and remanded.
SIMPSON, MERRILL and SPANN, JJ., concur. | November 15, 1956 |
daca3e76-c102-426e-9aad-5c604c75b40f | Waldrop v. State | 306 So. 2d 33 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 33 (1975)
In re Billy Wayne WALDROP
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1038.
Supreme Court of Alabama.
January 2, 1975.
William J. Baxley, Atty. Gen., and William T. Musgrove, Jr., Sp. Asst. Atty. Gen., for petitioner, the State.
None for respondent.
FAULKNER, Justice.
Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Waldrop v. State, 54 Ala.App. 163, 306 So. 2d 29.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | January 2, 1975 |
5bb93e48-ba23-4462-a99a-85a4a80c1d19 | Gibson v. Anderson | 92 So. 2d 692 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 692 (1956)
Myrtis GIBSON
v.
S. W. ANDERSON, Guardian.
4 Div. 879.
Supreme Court of Alabama.
December 21, 1956.
Rehearing Denied February 28, 1957.
*693 John C. Walters, Troy, and J. O. Sentell, Jr., Montgomery, for appellant.
E. C. Orme, Troy, for appellee.
GOODWYN, Justice.
S. W. Anderson, as guardian of Herbert Leo Gibson, a minor (appellee), instituted a declaratory judgment proceeding in the circuit court of Pike County, in equity, against Mrs. Myrtis Gibson, individually and as administratrix of the Estate of Leo Gibson, deceased (appellant), for the purpose of determining the ownership of a house and lot in the City of Troy. Testimony was taken orally before the trial judge, after which a decree was rendered in favor of complainant. This appeal is by respondent from that decree.
The facts are substantially as follows: In 1938 the first wife of Leo Gibson purchased the house and lot in question. In 1945 Mr. Gibson and his first wife assumed custody of the child in whose behalf this suit is brought with the intention of adopting him. There were some difficulties in consummating the adoption. In 1948, before the child could be legally adopted, Mr. Gibson's first wife died intestate. Under the law of descents and distributions, Code 1940, Tit. 16, §§ 1, 12, the house and lot then passed to the first wife's mother and father subject to a life estate in the husband.
In March, 1949 Mr. Gibson filed a petition in the Pike County Probate Court for adoption of the child, and asked that his *694 name be legally changed to "Herbert Leo Gibson". An interlocutory decree granting the petition was issued in June, 1949, and a final decree in June, 1950. It appears that the child had been popularly known as "Bert" or "Herbert Leo" for some time before his name was legally changed.
The father and mother of Leo Gibson's first wife had been divorced for some time at the time of her death. Her mother was remarried to Charles Anderson. In 1949 her father, Carl Jones, executed a quitclaim deed of his interest in the house and lot to "Herbert Leo Gibson". Later, in March, 1951, the mother, Mrs. Charles Anderson and her husband also deeded their interest in the property to "Herbert Leo Gibson". At the trial all three of the grantors testified that they had intended to convey their interest in the property to the child and that the grantee in the deeds was the boy and not his adoptive father. They testified further that Mr. Gibson had had the quitclaim deeds prepared and that he had stated that he wanted the property to go to his adopted son and that the deeds were for the purpose of conveying to the boy and not to himself.
In 1953 Mr. Gibson remarried, and about a year later died intestate. His second wife, individually and as administratrix of his estate, is the respondent-appellant in this suit.
After Mr. Gibson's death the second wife petitioned the court to have the house and lot set aside as a homestead for herself and the child. The child's legal guardian then filed this suit for declaratory judgment alleging that the father and mother of the first wife had conveyed the house and lot to the child and not to his adoptive father, and that the property, therefore, belonged to the child outright and was not a part of Mr. Gibson's estate.
The principal question for determination by the trial court was, of course, the identity of the grantee in the two quitclaim deeds from the father and mother of the first wife. The court found that the grantee was the child and not the father, and a decree was rendered accordingly.
The first question presented is whether there was sufficient legal evidence before the trial court to support the decree.
There appears to be no question that a latent ambiguity is presented with respect to the intended grantee in the two quitclaim deeds. It is said that "a latent ambiguity arises when the writing on its face appears clear and unambiguous, but there is some collateral matter which makes the meaning uncertain", 32 C.J.S., Evidence, § 961b, p. 915; "that is, an uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing", 20 Am.Jur., Evidence, § 1157, p. 1010. And it is well established that parol or other extrinsic evidence is admissible to explain or clarify a latent ambiguity. Kimbrough v. Dickinson, 247 Ala. 324, 24 So. 2d 424, 426; Reichert v. Jerome H. Sheip, Inc., 206 Ala. 648, 652, 91 So. 618; Pieme v. Arata, 202 Ala. 427, 428, 80 So. 811; Reynolds v. Trawick, 197 Ala. 165, 167, 72 So. 378; Garrow v. Toxey, 188 Ala. 572(2), 66 So. 443; Hereford v. Hereford, 131 Ala. 573, 576, 32 So. 620; Guilmartin v. Wood, 76 Ala. 204, 209; Chambers v. Ringstaff, 69 Ala. 140, 143-145; 20 Am.Jur., Evidence, § 1157, p. 1010; 32 C.J.S., Evidence, § 961, pp. 915-918.
The rule is thus stated in Guilmartin v. Wood, supra:
Appellant insists that complainant's entire case rests upon the testimony of the grantors in the two quitclaim deeds to "Herbert Leo Gibson", most of which is said by appellant to be inadmissible. All three of these witnesses testified to statements of the deceased, Herbert Leo Gibson, Sr., to the effect that he wished the property to go to his adopted son, and that the deeds were for the purpose of conveying to the boy. Appellant insists that such evidence was inadmissible under the so-called Dead Man's Statute, Code 1940, Tit. 7, § 433, and did not constitute legal evidence in the cause. They also testified, as already noted, that they intended to deed the property to the boy. It is argued that if such incompetent testimony is excluded from consideration there is insufficient evidence to support the decree.
The trial court did not specifically rule on the admissibility of any of the testimony which was offered. Therefore, under Code 1940, Tit. 7, § 372(1), Pocket Part, Act No. 101, approved June 8, 1943, Gen. Acts 1943, p. 105, we must assume that the court considered only the evidence which was properly admissible, and if there was sufficient legal evidence to support the findings of the court, the decree must be sustained as if it were the verdict of a jury. Dougherty v. Hood, 262 Ala. 311, 313, 78 So. 2d 324. It may be, as insisted by appellant, that the weight of the evidence supports her position, but, on the whole, we think it was fairly a jury question which the trial court resolved against her. The established rule of review is that the finding of the trial court on evidence given orally before it, as in the instant case, is entitled to the weight accorded the verdict of a jury and will not be disturbed on appeal unless plainly and palpably wrong. Dorsey v. Dorsey, 259 Ala. 220, 225, 66 So. 2d 135; Haden v. Boykin, 259 Ala. 504, 507, 66 So. 2d 708; Alabama Mills v. Brand, 251 Ala. 643, 645, 38 So. 2d 574; Meadows v. Hulsey, 246 Ala. 261, 262, 20 So. 2d 526. We cannot say that the decree in this case is plainly and palpably wrong.
We have carefully examined the record. Excluding from consideration the testimony said by appellant to be inadmissible we still find evidence sufficient to support the trial court's conclusion that the deeds were made to the boy instead of to the father. In this situation it is unnecessary to pass on the admissibility of the evidence to which appellant objects. Dougherty v. Hood, supra.
Appellant insists that complainant is estopped to deny that title to the property was in Herbert Leo Gibson, Sr., because he allowed Mrs. Gibson to pay off the mortgage on the property before asserting the rights of the ward, and because he had assessed the property as a homestead exemption of Mrs. Gibson while acting in her behalf.
The general rule is that a guardian cannot impair the rights of his ward, or create an estoppel against the ward, by his own acts or omissions. Hobbs v. Nashville, Chattanooga, & St. Louis Railway Co., 122 Ala. 602, 609, 26 So. 139, 82 Am.St.Rep. 103; 25 Am.Jur., Guardian & Ward, § 101, p. 66; 39 C.J.S., Guardian and Ward, § 99, p. 174.
The rule is stated as follows in 25 Am. Jur., Guardian & Ward, § 101, p. 66:
The rule is thus stated in 39 C.J.S., Guardian and Ward, § 99, p. 174:
It seems clear that Anderson's act can in no way prejudice the rights of his ward.
Appellant argues, however, that even if the rights of the ward are unimpaired and no estoppel against the ward was created by the acts of his guardian, that Anderson himself is estopped to assert the rights on behalf of the ward. We see no merit in this argument. It seems clear to us that the acts which the appellant relies on to create an estoppel were done by Anderson as an individual and not in his capacity as guardian. The generally accepted rule is that the acts of a guardian in his individual capacity cannot estop him from asserting the rights of his ward in his representative capacity as guardian. Mazer v. City National Bank, 25 Ala.App. 372, 373, 146 So. 885; 31 C.J.S., Estoppel, § 134, p. 402.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur. | December 21, 1956 |
477c82a7-4f59-4e89-9449-a86f5892fd66 | BAYLISS MACHINE & W. CO. v. Huntsville Ice & Coal Co. | 91 So. 2d 483 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 483 (1956)
BAYLISS MACHINE & WELDING COMPANY et al.
v.
HUNTSVILLE ICE & COAL COMPANY.
8 Div. 775.
Supreme Court of Alabama.
January 12, 1956.
Rehearing Granted December 21, 1956.
*484 Smyer, Smyer, White & Reid and Geo. Peach Taylor, Birmingham, for appellants.
Watts & Salmon, Huntsville, for appellee.
MAYFIELD, Justice.
This is an appeal from a judgment in favor of the plaintiff-appellee rendered by the Circuit Court of Madison County.
The cause was tried without a jury. The plaintiff's claim for damages arose out of an alleged fraudulent misrepresentation made by appellants' agent in connection with the sale of a refrigeration unit by the defendants-appellants to the plaintiff-appellee. The appellee was engaged in the business of manufacturing and selling ice in the city of Huntsville, Alabama. Appellants are engaged in the business of selling refrigeration equipment. In April 1951, the appellee-plaintiff purchased an additional ice house in Huntsville, Alabama, known to this Court as the Mason-Brown Plant. Shortly after the appellee purchased the Mason-Brown Plant, they stopped the manufacture of ice at this plant and began using it as a storage outlet for ice manufactured at its main plant, which was some *485 eight blocks distant. Ice was shipped from the appellee's main plant to the Brown-Mason Plant, where it was stored, cut into desired sizes and sold through coin operated vending machines.
The appellee decided that the refrigeration equipment at the Brown-Mason Plant could not be operated economically under its new system. Mr. James F. Watts, the Manager of the Huntsville Ice and Coal Company, discussed the matter with Mr. A. F. Feaster, the Manager of the refrigeration department of the Bayliss Machine and Welding Company. Mr. Watts told Mr. Feaster that he needed a new refrigeration unit and whatever else was necessary to maintain a constant temperature in the ice storage room. Mr. Feaster was a graduate engineer with thirty years' experience in refrigeration. In their respective capacities for their employees, Mr. Watts and Mr. Feaster had had numerous dealings with each other over a period of the last four years.
Thereafter, Mr. Feaster examined the ice storage room, took measurements of all surfaces, examined the insulation on the walls, and noted that the floor was made of wide boards and that the ceiling was of tongue and groove. However, he made no further examination of the floors and ceiling with respect to insulation.
Following their discussion, Mr. Watts received the following letter from Mr. Feaster, dated 5 July 1951:
"Dear Mr. Watts:
"We take pleasure in quoting on the following freon equipment for refrigerating the ice storage room at the Mason-Brown Plant, this room is 16' 7" wide by 30' long by 7' 10" high. It will require 15900 BTU per hour based on 18 hours per day operation when the outside temperature is 100°. and the storage room temperature is 28°.
"Price of above equipment $932.00 f. o. b. Huntsville, Alabama.
"Thanking you for the opportunity of quoting on this equipment and hoping to be favored with your order, we are,
The appellee purchased the equipment recommended by Mr. Feaster in his letter and installed the same in late October 1951. This equipment worked properly during the winter months and maintained the desired twenty-eight degree temperature.
*486 On 5 May 1952 when the outside temperature had risen to eighty-five degrees or higher, Mr. Watts noticed that the ice in the storage room was melting. Mr. Watts then checked the floor in the storage room and found that it was not insulated and ordered and installed cork insulation. No appreciable improvement resulted.
On 5 June 1952, defendants-appellants were notified of the plaintiff-appellee's inability to maintain a sub-freezing temperature in its storage room. Mr. Feaster investigated and suggested that additional insulation be installed on the walls and ceilings. This the appellee did. Mr. Feaster and other employees of the Bayliss Company made various adjustments in the refrigeration equipment. Still no appreciable improvement resulted and the ice in the storage room continued to melt. It then became apparent that the refrigeration equipment lacked the necessary capacity to keep the storage room at the desired temperature. After defendants-appellants were given the opportunity to supply an auxiliary refrigeration unit at its expense, the appellee purchased and installed such a unit from another source. After this auxiliary unit was installed, the ice company was able to maintain the desired temperature in the ice storage room.
Appellee's complaint was in three counts. The misrepresentation charged in each count was based on the letter from Mr. Feaster to Mr. Watts on 5 July 1951. Count 1 alleges that the misrepresentations were wilfully made; count 2 alleges that the misrepresentations were recklessly made without knowledge of their falsity; and count 3 that the misrepresentations were made innocently and by mistake. Judgment was for the appellee ice company in the amount of $2,214.33. It is obvious that this amount included damages for the expense involved in the purchase and installation of the auxiliary refrigeration unit, insulation and service charges, loss of ice, and interest on these items from the date of the filing of the complaint.
Appellants' first contention is that the verdict was contrary to the weight of the evidence. It is alleged that the evidence fails to show any misrepresentation, in that appellants' representation was that this specific refrigeration unit would produce 14,900 BTU per hour, and that there is no evidence that this unit did not produce 15,900 BTU per hour, as represented. It is further contended that the evidence shows that the manager of the appellee company requested a refrigeration unit for an "ice storage room" and that this term has a well defined meaning in the trade denoting certain minimum cork insulation. Further, that the evidence was insufficient to show that the unit in question would not adequately refrigerate an "ice storage room" of the same dimensions as appellee's storage room.
It is our opinion that appellants' conclusions are not supported by the evidence. It is clear to us that the appellee called appellants' refrigeration expert and made known to him its desire to purchase a refrigeration unit which would cool this particular room to a temperature of twenty-eight degrees when the outside temperature was one hundred degrees Fahrenheit. Appellants' refrigeration expert examined this particular room, and it is clear that the representation that he made to the appellee was that the specific unit described in his letter would serve the needs of appellants with reference to this particular storage room. The evidence is clear that appellants relied on the representations made by the appellee's refrigeration expert and purchased the specific unit from appellants in reliance on these representations. It is undisputed that the unit specified in the letter failed to cool this storage room in the manner represented.
Appellants concede that under the law of this State in order to prove an action of fraud, it is not necessary that the misrepresentations relied upon should have been wilfully made to deceive or even recklessly made. Code of Alabama 1940, Title *487 7, § 108; Rudman v. Hooks, 252 Ala. 280, 40 So. 2d 866; Standard Oil Co. v. Myers, 232 Ala. 662, 169 So. 312; Cartwright v. Braly, 218 Ala. 49, 117 So. 477. Therefore, we conclude that the trial Court's finding is not contrary to the weight of the evidence.
Appellants also contend that the damages adjudged by the trial Court were excessive. Appellants correctly stated the general rule that in fraud cases the measure of damages is the difference between the value of the article purchased and its value as represented. Phillips v. Malone, 223 Ala. 381, 136 So. 793; Preston Motors Corporation v. Wood, 208 Ala. 172, 94 So. 70. This rule does not, however, preclude recovery of the damages claimed in this case. One injured by a fraudulent misrepresentation is entitled to recovery of all the damages within the contemplation of the parties which were the natural and proximate consequences of the fraudulent misrepresentation. Fidelity & Casualty Co. of New York v. J. D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669; Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454, certiorari denied Ex parte Alabama Machinery & Supply Co., 209 Ala. 466, 96 So. 459. The rule is expressed in 37 C.J.S., Fraud, § 143 b(8)(e), p. 488, as follows:
The damages suffered by appellee in attempting to minimize his losses comes within the stated rule. The undisputed testimony establishes that the amounts expended by the appellee for service charges, insulating materials, and an auxiliary refrigeration unit were reasonable. It appears that as to these items, the damages adjudged were proper and not excessive.
The judgment also included $670.60 as damages for loss of ice. It is this item of compensation with which we must presently be concerned. That substantial quantities of ice in appellee's storage room did melt because of inadequate refrigeration appears without dispute. It also appears that appellee replaced the melted ice with other ice manufactured by it. Because of such replacement of the melted ice, no sales were lost. In determining the amount of appellee's loss from melted ice, evidence was introduced and the Court below based its computation on a premium retail price at which the melted ice would have been sold if it had been sold through appellee's vending machines. Under the authorities, this does not seem to be the proper measure of damages. The true measure of damages in such a case is the replacement cost of the ice which was destroyed, together with expenses incident to such replacement. Sutherland on Damages, 4th Edition, Vol. IV, Section 1098, page 4178; Needham Piano & Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S.W. 787; International Harvester Co. of America v. Chicago, M. & St. P. R. Co., 186 Iowa 86, 172 N.W. 471; Wehle v. Haviland, 69 N.Y. 448.
But from the state of the record, no proper objection was made by the defendants to the introduction of the evidence of loss of profits and parties may try their cases on immaterial evidence if they desire and cannot take advantage of the introduction of such evidence after it goes in without proper objection or protest. Birmingham Railway, Light & Power Co. v. Girod, 164 Ala. 10, 51 So. 242.
The evidence thus having gone in without proper objection, the Court was privileged to consider it as legal evidence. Moon's Adm'r v. Crowder, 72 Ala. 79; Somerall v. Citizens' Bank, 208 Ala. 501, 94 So. 476. And such evidence was entitled to as much weight as if it had been proper. Birmingham Railway & Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548.
The defendants did interpose objection to the evidence on the ground that it was a *488 conclusion and not properly predicated on sufficient facts, but at no time raised the proper objection that the evidence was not the proper measure of damages in the case. Being so, the Court will not be put in error for its admission and consideration. For analogy see Hamilton v. Browning, 257 Ala. 72(11), 57 So. 2d 530.
We have concluded that no reversible error is presented on this appeal. It follows that the judgment of the Circuit Court is due to be, and is hereby affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.
PER CURIAM.
We now think the court fell into error in the above opinion in holding that although the trial court misapplied the law to the facts found, the error is not of a sort which requires a reversal of the judgment because the objection to the evidence was not sufficient to raise the question of law involved.
The controversy was as to the proper measure of damages in a suit for deceit in the sale of a cooling machine or refrigeration unit sold by appellants to appellee. The unit was found not to be of sufficient capacity to keep ice from melting in a storage room where appellee kept ice to supply its vending machines in various locations. As soon as this was discovered, appellants (defendants) were notified and they collaborated with appellee in insulating the room and adding additional equipment which served the purpose for which the first machine was purchased. Before the correction was accomplished appellee sustained a loss in the melting of ice in the storage room. The finding of facts and conclusion of the trial judge are best stated in his own language, as follows:
This application for rehearing is directed solely to the item of $670.60 and the interest on it. Therefore, we shall only consider that. It is lost profit specially claimed in the complaint, as it must be. *489 Swedenburg v. Copeland, 263 Ala. 241, 82 So. 2d 227; Lambert v. Jefferson, 251 Ala. 5, 36 So. 2d 594; Cortner v. Anderson, Clayton & Co., 225 Ala. 575, 144 So. 443.
The evidence is that appellee lost no sales on account of the loss of that ice. Every demand for the purchase of the ice was met so that no profit was lost on a resale.
The former opinion expresses the view that the loss to plaintiff represented by the melted ice is that amount which would purchase ice of equal value in the market, or the replacement cost of it. We think that conclusion is well supported by the authorities cited, and it is not questioned on this rehearing. See McFadden v. Henderson, 128 Ala. 221, 29 So. 640.
Appellants should not be penalized for the failure to make proper objection to evidence which tends to show damage beyond that which the law allows. While we are inclined to the view that the objection was based on a ground which raises the question, appellants' right to have it excluded from allowance is not dependent upon their proper objection to the evidence. The legal question involved may be raised either by a motion to strike the claim from the complaint, objection to the evidence or written request for instruction to the jury. Mixon v. Trawick, 264 Ala. 82, 84 So.2d 760(6); Treadwell v. Tillis, 108 Ala. 262, 19 So. 886.
If on a trial by jury defendants were entitled to have the item excluded by a requested charge given to the jury, the court trying without a jury should not include it. The assignment of error in that respect is of the judgment overruling the motion for a new trial. That ground was specified in the motion, and therefore the question is duly presented here. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Sections 764, 765, Title 7, as amended, pocket part Code.
Therefore, it is apparent that the judgment of the court was in error in respect to the item which we have discussed, but there is no evidence upon which to base a finding of the replacement value of the melted ice. The record is in such condition that this Court should not render a final judgment. Sections 260, 810, Title 7, Code.
The application for rehearing should be granted: the judgment of affirmance set aside, and one here entered reversing the judgment and remanding the cause.
The foregoing opinion on rehearing was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Application for rehearing granted: judgment of affirmance set aside, and one here entered reversing the judgment and remanding the cause.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and SPANN, JJ., concur. | December 21, 1956 |
641d98ce-6d09-42fb-9104-14246c426733 | Alabama Power Company v. Taylor | 306 So. 2d 236 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 236 (1975)
ALABAMA POWER COMPANY
v.
Ivy LaDonna TAYLOR, a minor, etc.
SC 783.
Supreme Court of Alabama.
January 9, 1975.
*238 Balch, Bingham, Baker, Hawthorne, Williams & Ward, James O. Spencer, Jr., Birmingham, and J. B. Blackburn, Bay Minette, for appellant.
Cunningham, Bounds & Byrd, Mobile, for appellee.
BLOODWORTH, Justice.
This is an appeal by defendant Alabama Power Company from a judgment and jury *239 verdict of $200,000 for personal injuries, rendered in favor of Ivy LaDonna Taylor, a minor, ten years of age, who sues by and through her mother and next friend, Cherry Ann McCormick. Mrs. McCormick also brought a derivative suit to recover medical expenses incurred on behalf of her daughter. See SC 755, Cherry Ann McCormick v. Alabama Power Company, wherein on Mrs. McCormick's appeal from trial court's judgment reducing the jury verdict in her favor, the judgment is reversed. [1975], 293 Ala. 481, 306 So. 2d 233.
The complaint is in five counts. The first four counts charge in essence that Alabama Power Company negligently caused or allowed or maintained uninsulated high-voltage power lines or negligently failed to insulate high-voltage power lines, in that said lines were allowed to be in or dangerously near a tree which, by the exercise of reasonable care, it should have known was frequently climbed by children and that as a proximate result of defendant's negligence, plaintiff was injured and damaged by coming in contact with said lines. Count five charges wantonness in the maintenance of the uninsulated wires.
At the conclusion of the evidence, both parties moved for directed verdicts. The trial judge granted Alabama Power's motion for a directed verdict as to the wanton count and granted plaintiff's motion for a directed verdict as to all four negligence counts. After instructions from the court, the jury retired and assessed LaDonna's damages at $200,000. Following the jury verdict and judgment thereon, Alabama Power Company moved for a new trial, or, in the alternative, for judgment notwithstanding the verdict. When the motion was overruled, this appeal then ensued.
Alabama Power Company's arguments on appeal are directed to three grounds of its motion for new trial.
Prior to trial, Alabama Power Company took the deposition of one Robert L. Jenkins, a consulting engineer and resident of Baldwin County. At the taking of this deposition, each party was represented by counsel and each had the opportunity to examine the witness. Mr. Jenkins was subpoenaed for the trial but failed to appear. Initially, the trial judge indicated that Jenkins' deposition would not be admitted in evidence as part of the plaintiff's case in chief. On the following day, however, the court changed its ruling and the deposition was admitted. (Mr. Jenkins was then either in Birmingham or Atlanta.) Alabama Power Company vigorously objected to the use of the deposition and moved for a continuance until such time as Mr. Jenkins could be available. The trial judge's denial of the continuance is assigned as error.
Rule 32(a)(3)(B), Alabama Rules of Civil Procedure, makes the deposition of a nonparty witness admissible against any party represented at the taking thereof for any purpose when "* * * the witness is at a greater distance than 100 miles from the place of trial * * * unless it appears that the absence of the witness was procured by the party offering the depositions."
It is not disputed that the witness Jenkins was more than 100 miles from the place of trial when the deposition was offered. Alabama Power Company had the opportunity to examine him when he was deposed. No contention is made that the witness' absence was procured by the plaintiff. Therefore, it is clear that under Rule 32(a)(3)(B), Alabama Rules of Civil Procedure, the deposition was admissible. As we perceive it, the very purpose of the rule is to prevent the need for a continuance.
As this Court has heretofore written:
Alabama Power Company made no showing that the witness would testify differently, or as to other facts, if he testified in person. We do not find that the trial judge abused his discretion in this case. To the contrary, we believe he was justified in proceeding with trial and allowing the deposition of the witness to be used.
After the jury had been deliberating on the issue of damages some period of time, the following occurred:
In a personal injury action, the plaintiff's attorneys' fees are not part of plaintiff's legal damages. Clark v. Exchange Ins. Ass'n, 276 Ala. 334, 161 So. 2d 817 (1964). Therefore, Alabama Power assigns as error the giving of this "instruction" and contends that it resulted in an excessive verdict.
It will be noted from the record that Alabama Power Company did not object to the giving of this "instruction" and, therefore, Rule 51, Alabama Rules of Civil Procedure applies. It is, in pertinent part, viz.:
Having failed to object, appellant cannot now complain. Stated simply, this Court reviews "rulings" made by the court below. In such an instance as here, when a party fails to object, and thereby invoke the ruling of the trial court, nothing is preserved for our review.
At oral argument, Alabama Power Company, in order to excuse its failure to object, alluded to Rule 46, Alabama Rules of Civil Procedure, which provides:
This rule merely abolishes the need for formal "exceptions" while reiterating the need for an "objection." Only if a party has no opportunity to object, does the rule excuse the absence thereof. Alabama Power Company does not contend in brief, nor did it contend at oral argument, that it had no opportunity to object. Thus, we conclude there is no reversible error in the assignment of error directed to the trial court's remark as to attorney's fees.
Finally, Alabama Power Company argues that the giving of the directed verdict for plaintiff on the negligence counts was erroneous in three respects: (1) That since plaintiff had the burden of proof, the trial judge should have hypothesized his direction to the jury to return a verdict for plaintiff on the jury's belief of the evidence, citing McHugh v. Harrison, 266 Ala. 138, 94 So. 2d 756 (1957); (2) That there was a scintilla of evidence from which the jury could have found that Alabama Power Company was not negligent; (3) That there was a scintilla of evidence from which the jury could have found that the minor plaintiff was guilty of contributory negligence. We will speak to each of these arguments in detail.
Rule 50(a), Alabama Rules of Civil Procedure, provides inter alia:
Rule 50(e), Alabama Rules of Civil Procedure, provides:
Thus, the former procedure of giving an affirmative charge with hypothesis has been abolished. If a trial judge decides there is not a scintilla of evidence upon which the jury could reasonably reach a verdict for a defendant, he can direct the verdict without submitting the credibility of the witnesses to the jury if their testimony is uncontradicted and unimpeached. In such case the direction of the verdict is effective without the assent of the jury.
An excellent discussion of the new directed verdict rule, and a comparison with the affirmative charge procedure is found in the Committee Comments to Rule 50:
Under the federal rule (from which our rule is copied), a majority of courts hold that the trial judge, on motion for directed verdict, may accept as true the uncontradicted and unimpeached testimony from disinterested witnesses. 9 Wright and Miller, Federal Practice and Procedure § 2527, p. 561 (1971). Some federal courts have held that the jury must determine the credibility of uncontradicted and unimpeached testimony of interested witnesses but in other circumstances the same courts have held that even this testimony must be believed. 9 Wright and Miller, Federal Practice and Procedure § 2527, p. 562 (1971). The United States Supreme Court has expressed the rule thusly:
In the instant case two interested witnesses testified, the minor plaintiff and her mother. None of the testimony of the mother was relevant to the issue of Alabama Power Company's negligence. Alabama Power Company does not argue that the minor plaintiff's testimony that she climbed the tree and touched the wire is not to be believed. Such facts were stipulated to by Alabama Power Company in the pre-trial order. Alabama Power Company did not even cross-examine her. Furthermore, in the view we have taken of the case, the physical evidence and the uncontradicted and unimpeached testimony of distinterested witnesses was sufficient without *243 the testimony of the minor plaintiff to justify a directed verdict on the issue of Alabama Power Company's negligence. As will be shown hereinafter in detail, there was no issue of contributory negligence in this case because of the lack of evidence to rebut the presumption that the ten-year-old plaintiff was incapable of contributory negligence. Thus, there was no jury issue of credibility as to the testimony of the minor plaintiff.
Assuming that the case was otherwise a proper one for the giving of a directed verdict, the trial court did not err in failing to condition the directed verdict for plaintiff on the jury's belief of the evidence.
As is expressly set out in Rule 50(e), the "scintilla" rule is preserved as the standard by which the trial judge must determine the propriety of granting a motion for directed verdict. As this Court has often said:
A defendant as well as a plaintiff is entitled to the benefit of the scintilla rule. McHugh v. Harrison, 266 Ala. 138, 94 So. 2d 756 (1957).
Whether or not the scintilla rule requires a given case to go to the jury is dependent upon the substantive law. The controlling principles applicable to the facts of this case are found in Blackwell v. Alabama Power Company, 275 Ala. 123, 152 So. 2d 670 (1963), an opinion authored for this Court by Justice Coleman:
"The Missouri Court approved the following statement:
"The Texas Court said:
The liability of Alabama Power Company is predicated on negligence. Therefore, to be entitled to a directed verdict on this issue, it was incumbent on the plaintiff to prove, to the exclusion of any contrary reasonable inference, that Alabama Power Company owed a duty, that it breached that duty and that the breach of the duty was the proximate cause of the injuries she sustained.
We will examine the evidence on each of these elements in light of Blackwell v. Alabama Power Company, supra, to determine if the plaintiff met that burden.
On October 29, 1972, Ivy LaDonna Taylor suffered severe electrical burns when she came in contact with uninsulated highvoltage power lines erected and maintained by Alabama Power Company. The wire ran through a thirty-five to forty foot sweet gum tree which grew beside a public alley in a residential neighborhood in Bay Minette, Alabama. The tree was thickly foliated and contained thirty-nine limbs spaced no more than eighteen inches apart. The lowest limb was five feet nine inches from the ground at the trunk, and the ends of some branches reached to the ground. Boards, which served as a makeshift ladder, were nailed to the trunk of the tree, and the tree's lower limbs supported a wooden platform eight to ten feet from the ground. Mr. Sam Crane, District Superintendent for Alabama Power Company, who had viewed the scene less than twenty-four hours after the accident, was called as an adverse witness by the plaintiff. He testified, inter alia:
A number of other children lived in the neighborhood and three children, including plaintiff, customarily played in the tree.
Three uninsulated power lines passed through the tree. The highest wire, which carried a charge of 7,200 volts, was ten feet below the top of the tree. A neutral wire was four and a half inches below the 7,200 volt line. The third line was four and a half feet below the neutral wire and carried no charge at the time of the accident. Thus, the lowest of the wires was approximately twenty-four feet above the ground and the highest twenty-nine feet above the ground. The highest and lowest wires were approximately sixteen feet and twenty-one feet, respectively, above the platform. All three wires passed in close proximity to the trunk of the tree and the two lower wires were embedded in the tree's limbs.
*247 The tree had not been trimmed since 1965,[1] and Alabama Power Company employees had not even been in the area since 1968 when they installed a new transformer. Prior to January, 1972, Alabama Power Company had no policy of inspection but each employee was supposed to report any dangerous condition he encountered by chance. In January, 1972, Alabama Power Company instituted a plan for six-year periodic inspections of its lines, but, as of the time of the accident, it had not undertaken any inspection in this area.
The expert witness Jenkins testified that on the foregoing facts Alabama Power Company was not in compliance with the following industry safety codes which were in use at the time of the accident by well regulated power companies, viz.:
Alabama Power Company's own Distribution Standards recommended that the top of a sweet gum tree be trimmed a minimum of five feet below a primary conductor. The standard recognized that a sweet gum tree was a fast growing tree.
Challenged by her playmates, the ten-year-old plaintiff attempted to climb to the top of the tree. In groping for a handhold, she grabbed the uninsulated 7,200 volt primary conductor while her foot rested on the uncharged low-voltage line. She then fell from the tree and when found by neighbors was unconscious. The burns suffered by her necessitated the amputation of three fingers, part of the thumb, and part of the palm of the left hand; a pin was placed in the ankle above one foot which was severely burned. Numerous skin grafts have also been required and will be required in the future.
In Blackwell, supra, the precise question was whether the electric company was entitled to a directed verdict. On the element of duty, the decision turned on whether there was a scintilla of evidence that a child might reasonably have been expected to climb the particular tree involved. This Court held there was at least a scintilla of such evidence from which the jury could and did find that a child would reasonably be expected to climb the particular tree. Therefore, the electric company was bound to anticipate that a child would climb the tree. Applying Blackwell to the procedural posture of this casean appeal from directed verdict for plaintiffthe question becomes whether there was a scintilla of evidence from which a jury could find that a child might not be reasonably expected to climb the particular tree. Stated otherwise, is the evidence so clear and convincing and free from adverse inference that it would be unreasonable to assume a child would not climb the particular tree involved?
Having carefully considered the evidence, we answer the question, as alternatively posed, in the affirmative and conclude that the trial court was correct in removing this issue from the jury's consideration. The tree was in a residential neighborhood occupied by numerous small children. At the trunk, the lowest limb was only five feet nine inches from the ground and the ends of several branches reached almost to the ground. The tree was thickly foliated with branches close together, forming convenient foot and handholds all the way up to the power lines. When these factors are coupled with the existence of the climbing boards and platform, no one could reasonably say this tree was other than a children's climbing tree. Indeed, *248 even Alabama Power Company's own District Engineer's testimonythat this was a children's climbing treeis uncontradicted.
Alabama Power Company contends that it was without actual notice or knowledge of the dangerous condition and that it owed no duty of reasonable care because the plaintiff was a trespasser.
Lack of actual notice or knowledge is immaterial. Having erected and maintained highly dangerous uninsulated wires, in close proximity to trees, Alabama Power Company is charged with knowledge of whatever it would have ascertained by a reasonable inspection. Blackwell v. Alabama Power Company, supra; Alabama Power Co. v. Jackson, 232 Ala. 42, 166 So. 692 (1936); cf. Reynolds v. Iowa Southern Utilities Co., 21 F.2d 958 (8th Cir. 1927); Benton v. North Carolina Public-Service Co., 165 N.C. 354, 81 S.E. 448 (1914); Sweeten v. Pacific Power & Light Co., 88 Wash. 679, 153 P. 1054 (1915).
It was stipulated that the power lines in question were suspended over a public way and not on Alabama Power Company's property. In Blackwell, supra, this Court said:
Thus, as a matter of law, plaintiff was not a trespasser as to Alabama Power Company.
Therefore, we conclude that on the particular facts of this case, Alabama Power Company, as a matter of law, was bound to anticipate that children would climb this tree and owed a duty of care to such persons.
In Blackwell, supra, the requisite degree of care is alternately stated as being a high degree of care or care commensurate with the circumstances. When analyzed, the meanings of these phrases are not different. The degree of care reasonable under the circumstances is a high degree of care because of the danger inherent in the maintenance of highly charged wires in or near trees. 18 Am. Jur. Electricity § 48 (1928); see cases collected at Annot., 27 A.L.R.2d 204, 213 (1953).
Alabama Power Company could have discharged its duty of care by cutting down the tree, trimming the tree, covering the wire with a protective insulation, or erecting a guard device around the tree. See cases collected at Annot., 27 A.L.R.2d 204, 214-217 (1953).
It is undisputed that the wires ran through the tree, that the tree had not been periodically trimmed, that the wires had no insulation covering, and that no guard device had been erected. The evidence shows that the top of the tree was ten feet above the primary conductor which caused the injury while Alabama Power Company's own safety manual required a sweet gum tree to be trimmed a minimum of five feet below a primary conductor. The tree had not been trimmed in seven years, even though Alabama Power Company's manual described a sweet gum tree as fast growing. (The condition had existed for such a period of time that the tree limbs had grown around the two lower wires!)
The witness Jenkins testified that the conditions existing at the time of plaintiff's injury did not comply with any of the standards for line clearance recognized and used by well regulated electric companies. No attempt was made by Alabama Power Company to rebut this statement.
*249 Mr. William Monroe, the local engineer for Alabama Power Company, called by plaintiff, testified as follows:
Mr. Monroe was not examined by Alabama Power Company and no testimony was offered in rebuttal.
All of the recognized standards introduced in evidence required periodic inspection and trimming, preferably each two years. Alabama Power Company had no plan of periodic inspection in operation but depended on its operating crews to report conditions they might happen upon. No Alabama Power Company employee had even been in the area in four years.
We conclude that all of the evidence admits of but one inferenceAlabama Power Company did not exercise any care, much less the high degree of care commensurate with the risk involved.
It is undisputed that the factual cause of plaintiff's injury was contact with the uninsulated wire maintained in a dangerous condition by Alabama Power Company.
In Alabama, foreseeability is the cornerstone of proximate cause. See, e. g., Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696 (1957); Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974). In accord with the principles of law enunciated in Blackwell, supra, it having been established that the particular tree which contained the wire was one likely to be climbed by children, Alabama Power Company was bound to anticipate or foresee that a child might climb the tree and come in contact with the wire. In the instant case, plaintiff is clearly a member of the foreseeable class and was injured in the precise manner which the exercise of that degree of care imposed on the Alabama Power Company would have protected her against.
In brief, Alabama Power Company suggested no other proximate cause except the failure of plaintiff's mother and neighbors to notify it of the dangerous condition. For the cause of an injury to be its proximate cause it need not be the sole proximate cause. Chambers v. Cox, 222 Ala. 1, 3, 130 So. 416, 418 (1930); Havard v. Palmer & Baker Engineers, Inc., supra; Shepherd v. Gardner Wholesale, Inc., 288 Ala. 43, 256 So. 2d 877 (1972). Assuming, arguendo, that plaintiff's mother and neighbors were under a duty to notify Alabama Power Company, such does not negate the inescapable conclusion that a proximate cause of plaintiff's injury was the failure of Alabama Power Company to insulate its wire or trim the tree. It is axiomatic that any negligence which might be attributable to the mother cannot be imputed to the child.
In its answer to the plaintiff's complaint, Alabama Power Company interposed *250 the affirmative defense of contributory negligence. At the time she sustained her injuries, the minor plaintiff was but ten years old. A child between the ages of seven and fourteen is prima facie presumed incapable of contributory negligence. Birmingham Ry., Light & Power Co. v. Landrum, 153 Ala. 192, 45 So. 198 (1907).
There was testimony that plaintiff scored "well above average" or in the "bright average range" on an "IQ" test administered at an undisclosed time after the accident but before trial.
This Court has long held that:
As can be seen, the above testimony is insufficient to overcome the presumption. We have found no evidence in the record that the minor plaintiff possessed the discretion, intelligence, and sensitivity to danger of a child fourteen years of age.
The legal presumption being against the existence of those characteristics, and there being no evidence to the contrary, Alabama Power Company was not entitled to have the question of plaintiff's contributory negligence, if any, submitted to the jury. Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So. 2d 402 (1949).
In accord with our rule of review, we have reviewed the evidence in the light most favorable to Alabama Power Company and conclude that the trial judge did not err in directing a verdict for plaintiff as to the negligence counts.
It is, perhaps, unnecessary that we call attention of bench and bar to the obvious that it is a rare instance when plaintiff is entitled to a directed verdict in a negligence action.
Let the judgment stand affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, FAULKNER and JONES, JJ., concur.
COLEMAN and MADDOX, JJ., dissent.
MADDOX, Justice (dissenting).
I must respectfully dissent. The majority relies strongly on Blackwell v. Alabama Power Co., 275 Ala. 123, 152 So. 2d 670 (1963). There, this Court said the plaintiff had a right to have a jury, not the trial judge, determine whether the Power Company was negligent. It is almost ironic how closely the facts of this case parallel the facts of the Blackwell case. Here, as in Blackwell, the trial judge took the case from the jury. I think the trial judge was wrong in taking the case from the jury in Blackwell. I think the trial judge was wrong here. In other words, the "scintilla rule" should be just as available to defendants as it is to plaintiffs.
I believe there was at least a scintilla of evidence that the wires were not the proximate cause of the injury. I also believe that since the jury saw the minor plaintiff testify at the trial and heard a psychiatrist tell about her IQ that there was at least a scintilla of evidence that she had a mental age of 14. There was at least a scintilla of evidence presented that the child's mother failed to properly protect her child against a known danger. Failure of a parent to extend such protection can be negligence. Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371, 3 So. 555 (1888). I believe it was a jury question whether the parent was negligent and whether this negligence *251 was the proximate cause of the child's injury.
This child suffered a severe injury. The evidence of negligence was substantial. Nevertheless, I believe that every person has a right to have a jury of his peers pass on that question. Our "scintilla rule" has been jealously preserved even against strong opposition. The "scintilla rule" means that in Alabama it is even harder for a judge to take from a party the right of trial by jury. That is the legal principle involved and that is the reason, and the only reason, I dissent.
[1] The evidence does not affirmatively disclose that this tree had ever been trimmed, only that trimming had not been done in the area since 1965. Taking the evidence in the light most favorable to Alabama Power Company, the inference might be drawn that the tree was in fact trimmed in 1965. | January 9, 1975 |
b1d1449e-c510-4450-8620-98e9771a70c8 | State v. Bay Towing & Dredging Company | 90 So. 2d 743 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 743 (1956)
STATE of Alabama
v.
BAY TOWING & DREDGING COMPANY, Inc.
1 Div. 595.
Supreme Court of Alabama.
November 15, 1956.
*744 John Patterson, Atty. Gen., and H. Grady Tiller and Willard W. Livingston, Asst. Attys. Gen., for appellant.
Vickers & Thornton, Mobile, for appellee.
GOODWYN, Justice.
In August, 1953, the State Department of Revenue made a final assessment of use tax on equipment purchased outside the state by the Bay Towing & Dredging Company, Inc. (hereafter referred to as Bay Company), appellee, during the period January 1, 1951, through March 31, 1953. Bay Company appealed the assessment to the Circuit Court of Mobile County where the case was submitted on Bay Company's bill of complaint, the state's answer thereto, and an agreed statement of facts.
In substance, the facts agreed upon are as follows: Bay Company is a Mobile concern engaged in recovering deposits of dead oyster shells from the bottom of Mobile Bay. The shells are brought to the surface by a floating dredge, where they are loaded on barges and towed to shore by tugs. These shells have a variety of commercial uses.
From time to time Bay Company found it necessary to acquire additional equipment to carry on its operations, and during the period covered by the assessment it made several purchases of tugs and barges outside the state which were later used within the state. Included were ten used barges purchased from a Louisiana corporation which was engaged in the business of hauling freight by barge. The seller was not a regular dealer in barges, and had sold only barges which had been used in its regular hauling business.
Five additional barges were purchased from two Texas corporations, both regularly *745 engaged in hauling oil by barge. These concerns also had made only incidental sales of barges used in their regular hauling business.
Bay Company also purchased two new tugs, the "Kittiwake" and the "Willet", from a Louisiana shipyard regularly engaged in building and selling tugs. It also purchased the used tug "Ace" from a Louisiana concern regularly engaged in buying and selling tugs.
The department of revenue made an assessment of use tax on all the barges and tugs, plus penalties and interest.
The circuit court rendered a decree holding Bay Company not liable for use tax on any of the barges, but approving the assessment on the three tugs. The state prosecutes this appeal to review that ruling with respect to the tax on the barges. Bay Company cross-appeals to test the court's ruling with respect to the used tug "Ace". There is no contest here of the assessment on the two new tugs "Kittiwake" and `"Willet".
The first question presented is whether barges acquired in "casual" and "isolated" sales transactions outside Alabama and subsequently brought into the state for permanent use are subject to the use tax. The answer to the question depends upon the construction given the statutes imposing the sales tax, Code 1940, Tit. 51, § 752 et seq. as amended, and the use tax, Code 1940, Tit. 51, § 787 et seq. as amended.
The levying section of the sales tax law, § 753, Tit. 51, as amended, provides as follows:
Section 752, subdiv. (1) (k), Tit. 51, as amended, defines "business" as follows:
The levying section of the use tax law, § 788, Tit. 51, as amended, provides as follows:
The definition of the word "business" as used in the use tax law, § 787, subdiv. (f), Tit. 51, is the same as that contained in the sales tax law, § 752, subdiv. (1) (k), Tit. 51, supra.
The position taken by the state is that § 788, Tit. 51, as amended, supra, requires that the tax be paid on tangible personal property purchased outside the state and brought within the state for storage, use or consumption whether the seller of such property is engaged in the business of dealing in such property or not; that the wording of Section 788 shows such to be the clear legislative purpose. On the other hand, Bay Company's insistence is that the sales tax and the use tax are complementary, one to the other; that the two laws must be construed together as one integrated, cohesive system of taxation; that unless property would be subject to the sales tax, had the sale occurred within this state, then the use tax cannot apply when the sale occurs without the state; that the property here involved would not be subject to the sales tax had the sale taken place here, and hence is not subject to the use tax. The trial court sustained Bay Company's contention, in which we concur.
While the sales tax is levied on the transaction of sale itself and the use tax on the use of property after the sale is completed, it seems clear that the legislature intended that these two tax laws be considered together as embodying one integrated, cohesive system of taxation. We have held them to be complementary, one to the other, and that the two acts should be construed in pari materia. State v. Advertiser Co., 257 Ala. 423, 59 So. 2d 576; Paramount-Richards Theatres v. State, 256 Ala. 515, 55 So. 2d 812; State v. Southern Kraft Corp., 243 Ala. 223, 8 So. 2d 886; Layne Central Co. v. Curry, 243 Ala. 165, 8 So. 2d 839. The purpose and effect of the two laws is thus succinctly stated in Paramount-Richards Theatres v. State, supra [256 Ala. 515, 55 So.2d 820]:
As we see it, if the use tax act is construed as imposing a tax on the use in this state of tangible personal property purchased outside the state in casual and isolated sales transactions, such tax would constitute an unlawful discrimination against interstate commerce, contrary to the Commerce Clause of the United States Constitution, Const. art. 1, § 8, cl. 3, since no similar or equivalent tax burden is imposed in connection with the purchase of such property in casual and isolated sales transactions within the state. This principle was recognized in Paramount-Richards Theatres v. State, supra, where it was said:
The United States Supreme Court has held that a use tax, integrated with a sales tax, in a manner similar to ours, is not violative of the Commerce Clause when such system of taxation does not discriminate against transactions in interstate commerce, but merely equalizes the burden of taxation on purchases made in interstate commerce and on strictly local sales. Henneford v. Silas Mason Co., 300 U.S. 577, 57 S. Ct. 524, 81 L. Ed. 814. Cf. Annotation, 129 A.L.R. 222; Annotation, 153 A.L.R. 609; Note, 54 Colum.L.Rev. 261. However, if such a system of taxation places a discriminatory burden on transactions in interstate commerce, which would not apply to local sales, the use tax would become unconstitutional in its operation. Paramount-Richards Theatres v. State, supra; Anderson v. Mullaney, 9 Cir., 191 F.2d 123, 129, affirmed 342 U.S. 415, 72 S. Ct. 428, 96 L. Ed. 458; Best & Co. v. Maxwell, 311 U.S. 454, 455, 61 S. Ct. 334, 85 L. Ed. 275; Hale v. Bimco Trading Co., 306 U.S. 375, 59 S. Ct. 526, 83 L. Ed. 771. As said in Best & Co. v. Maxwell, supra [311 U.S. 454, 61 S.Ct. 335]:
It seems clear to us that if the sales of the barges had taken place in Alabama there would be no sales tax due because the barges were purchased in "casual" or "isolated" sales transactions from concerns not engaged in the business of selling barges but engaged solely in the business of hauling for hire. Therefore, if the use tax act should be construed as imposing the tax on "casual" and "isolated" sales in interstate commerce there would result a clear discrimination against such sales.
Since its original enactment in 1937, Gen. & Loc.Acts, Ex.Sess. 1936-37, p. 125, Act. No. 126, appvd. Feb. 23, 1937, the sales tax law has been consistently construed by the attorney-general to mean that casual or isolated sales of tangible personal property by persons not engaged in the business of selling such property are not subject to the sales tax.
In an opinion rendered on May 12, 1937, construing Section 2 of the original sales tax act which contained the same provisions as those quoted from section 753, as amended, supra, it was held that an occasional sale made by one as an individual, and not as a retail business transaction, was not subject to the sales tax. Vol. 7, Rep. of Op., Atty. Gen. Ala., Apr. 1, 1937 June 30, 1937, p. 126.
On March 25, 1940, the attorney-general again made a similar ruling in construing Section II of the 1939 Sales Tax Act, Act No. 18, appvd. Feb. 8, 1939, Gen. Acts 1939, p. 16, which also contained the same provisions as those quoted, supra, from Section 753, as amended. Vol. 21 Rep. of Op., Atty. Gen. Ala., Oct. 1, 1940 Dec. 31, 1940, p. 177. The question responded to was whether the sales tax should be collected upon a sale made under the following circumstances:
*748 The ruling was as follows:
Also bearing on the question are Revenue Department Rules C1-031 (issued in January, 1951) and C1-032 (issued in February, 1951) which provide as follows:
"Rule C1-031. Casual Sales.Casual or isolated sales by persons not engaged in the business of selling are not subject to the sales tax.
What these rules mean is not too clear. Nor does the record disclose exactly how they have been interpreted and applied by the revenue department. Be that as it may, we think the attorney general's construction of the sales tax act is in accord with the legislative intent. Thus, in the instant case if Bay Company had bought the barges in Alabama there would be no sales tax due. Accordingly, if the use tax act should be construed as imposing a tax there would be, as a result, a clear discrimination against Bay Company's interstate sales transactions.
See, also, 11 Am.Jur., Constitutional Law, § 97, pp. 725-732.
The rule is thus stated in McCall v. Automatic Voting Mach. Corporation, 236 Ala. 10, 13, 180 So. 695, 697:
The trial court correctly ruled that Bay Company is not liable for use tax on the barges.
Liability for use tax on this tug turns on whether there has been an implied repeal of a provision in § 789, Tit. 51, as amended, which specifically exempts "used automotive vehicles" from the operation of the use tax. It is conceded that this tug is an "automotive vehicle".
The levying section of the use tax act, § 788, Tit. 51, supra, prior to its amendment in 1951, Act No. 209, appvd. July 17, 1951, effective Oct. 1, 1951, Acts 1951, p. 472, contained the following provision:
Section 789, Tit. 51, supra, as amended in 1949, Act No. 210, appvd. July 12, 1949, Acts 1949, p. 300, specifically exempted "(u) used automotive vehicles" from the operation of the use tax. This section, as so amended, still stands.
In 1951, however, the levying provision of § 788, set out above, was amended, Act No. 209, supra, to read:
In Alabama, the law governing implied repeals is well-settled and the cases on this point are singularly consistent. See 18 Ala.Dig., Statutes. A concise statement of the rule is contained in City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159, 162:
Implied repeal is essentially a question of determining the legislative intent as expressed in the statutes. Ex parte Jones, 212 Ala. 259, 260, 102 So. 234. When the provisions of two statutes are directly repugnant and cannot be reconciled, it must be presumed that the legislature intended an implied repeal, and the later statute prevails as the last expression of the legislative will. Union Central Life Insurance Co. v. State, 226 Ala. 420, 423, 147 So. 187; Fidelity & Deposit Co. of Maryland v. Farmers' Hardware Co., 223 Ala. 477, 479, 136 So. 824.
Before the 1951 amendment, the use tax was levied on "any automotive vehicle", subject to the specific exemption of "used automotive vehicles" contained in another section. The amendment changed the wording of the levying section to read "any new or used automotive vehicle". It is pointed out by cross-appellant that "any automotive vehicle" was already a comprehensive phrase including all types. However, the insertion of the words "new or used" must have had some purpose other than mere redundancy; the legislature must have intended some change in the meaning of the phrase. The only reasonable construction is that the legislature intended that thereafter the use tax should apply specifically to used as well as to new automotive vehicles. [We here note that the 1951 amendment, Act No. 121, appvd. June 22, 1951, effective Oct. 1, 1951, Acts 1951, p. 348, of the sales tax act specifically imposed the sales tax on used automotive vehicles by adding subsection (d) to § 753, Tit. 51, but did not amend § 755, Tit. 51. *750 which granted exemption to used automotive vehicles. It does not appear that the question of implied repeal with respect to the sales tax act has been before this court. See Rule A28-021 of the Department of Revenue, as amended in November 1951, which interprets the sales tax law in effect on October 1, 1951, as imposing the sales tax on used automotive vehicles.]
As it is our opinion that the legislative intent as expressed in the 1951 amendment was clearly to extend the operation of the use tax to include used automotive vehicles, we find an implied repeal of subsection (u) of Section 789 which exempts used automotive vehicles from the tax. This exemption is directly repugnant to the 1951 amendment, and the two provisions obviously cannot be reconciled.
Affirmed.
SIMPSON, MERRILL and SPANN, JJ., concur. | November 15, 1956 |
0f1ef48a-0e2b-4ded-ad85-1975b90492a8 | Johnson v. State | 91 So. 2d 476 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 476 (1956)
Clarence JOHNSON
v.
STATE of Alabama.
2 Div. 373.
Supreme Court of Alabama.
December 13, 1956.
John L. Godbold and C. E. Watson, Camden, for appellant.
*477 John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.
STAKELY, Justice.
Clarence Johnson (appellant) was indicted for murder in the first degree. On a plea of not guilty trial of the case resulted in a conviction of murder in the first degree and a sentence of death. Motion for a new trial was overruled. This appeal followed.
The alleged homicide was committed about seven or eight A.M. on Sunday morning of January 1, 1956, near Camden, Alabama. The testimony showed in substance the following. Homer Smith, the decedent, and Clarence Johnson (appellant) both worked at the Smith Sawmill Company near Camden. Homer Smith was also a part time collector for Thagard Loan Company. Clarence Johnson also operated a cafe and dance hall on Friday and Saturday nights about six miles from Camden.
On December 31, 1955, while Clarence Johnson was operating his cafe and dance hall, Homer Smith came to the place three or four times during the night and tried to collect a few dollars that Clarence Johnson owed the Thagard Loan Company. Tendencies of the evidence showed that Homer Smith cursed and made threats against the defendant.
Jimmie Threadgill came to the dance hall after Homer Smith had left the last time and had a fight with Clarence Johnson in which he drew a knife on Clarence Johnson.
Early in the morning of January 1, 1956, Clarence Johnson, Richard Lawrence, C. R. Nettles and the son of Clarence Johnson went to the home of Clarence Johnson near the road in Camden. The four men drank approximately one-half gallon of whiskey. After a short time Clarence Johnson left his home and went to the home of Mable Ray. He had his shotgun with him. He said to her, "Him and Jimmie Threadgill had been into it and he had to protect himself." He further said, "Jimmie Threadgill chunked in his face at his joint and somebody said `Jimmie Threadgill was going to get his gun.' So he came to get his to protect himself." He got one-half pint of shinny at Mable Ray's. He slept in the home of Mable Ray. About seven A.M. he left the house of Mable Ray and went down the road. About five minutes later Mable Ray heard a sound of a gun fired.
Laura McCall, a girl about thirteen years of age, testified that she saw Clarence Johnson come through the backyard where she was playing, carrying a gun. When she asked him what he was going to do with the gun he said, "Kill anybody that messed with him." Clarence Johnson then proceeded in the direction of the railroad.
Tendencies of the evidence show that practically every Sunday morning Homer Smith went to the plant of the Smith Sawmill Company near Camden near the railroad track to look around. He was the foreman at the Plant. On the morning of January 1, 1956, he was seated in a Chevrolet car near the plant with one Jack Taylor. The car was in a public road at the railroad track. According to Jack Taylor, Clarence Johnson was seen walking toward the car in which he and Homer Smith were seated. "Homer Smith said, `Yonder comes Toe-Joe (this was a nick name of Clarence Johnson). I'm going to stop and have some fun.' Mr. Smith said, `Good morning, Toe-Joe. How come you aint got the boilers going?' And Toe-Joe said, `Don't amount to a damn whether I ever get them going or not.' And Toe-Joe said something about last night and Mr. Smith said, `If I treated you wrong I am willing to apologize.' And Toe-Joe said, `You aint apologizing to me.' And Mr. Smith said, `If you got your gun after me I'll go up there and get Mr. Lummie to come and put you in jail.' And Mr. Smith said, `I aint got no gun in here at all, and I'll open the door here and let you see I ain't got no gun in my possession.' And he pushed the door open and his foot went out on the running board, and that time he shot him. *478 And he raised up and fell on my lap and said, `O, Lord, he shot me.'"
According to Jack Taylor, "Clarence Johnson took the empty shell out of the gun and put another in and he said, `I told you I'd kill you.' And he kept on around the commissary."
P. C. Jenkins, the Sheriff of Wilcox County, using bloodhounds, at about one P.M. on January 1, 1956 found Clarence Johnson asleep in the woods about three-quarters of a mile from the place where the shooting took place. Clarence Johnson had a shotgun and shells in his possession at the time.
Edwin Tate, Deputy Sheriff of Wilcox County, testified that in the late afternoon of January 1, 1956, he had a conversation with Clarence Johnson in the presence of the solicitor. No one threatened Clarence Johnson, offered him any reward or hope of reward or any inducement to persuade him to talk. Johnson told Tate that he had got shells and his gun and had met Mr. Smith at the railroad tracks, that Mr. Smith had cursed him the night before and that when Mr. Smith had opened the door and attempted to get out of the car, he shot him. He testified that Clarence Johnson further said that he had planned to waylay Smith along the railroad and whip him the next morning, as Mr. Clarence Smith didn't allow any fighting on the sawmill property.
The defendant took the stand in his own behalf and testified that he was a fireman at the mill at the Smith Sawmill Company. He also operated a kind of "joint", a dance hall, on Friday and Saturday nights of each week. On the day before the shooting Smith and a man from the Thagard Finance Company came in his place of business three times to get him to pay $4, a weekly installment upon his loan with the company. Clarence Johnson paid $2 of the $4 due and an argument followed as to whether he should have until Monday to pay the other $2. According to Clarence Johnson, Smith was abusive and continued to press him for payment but it was finally agreed that he should pay the remaining amount due the following Monday afternoon.
Clarence Johnson also testified that later he had a fight with one Jimmie Threadgill on Saturday night and that Threadgill had got after him with a knife. After he closed his place he went home and sat around with three men and between them they drank a half gallon of shinny, except for the portion used to start a fire in the stove. Early in the morning he got his shotgun because of the fight with Threadgill, "he being 35 years old and me being 55 years old and there was no way for me to defend myself against him," that he did not tell Mable Ray that he was going to kill Jimmie Threadgill, but said that, "if Jimmie is going to come back and take the shop over I had to protect my property," and then slept at the house of Mable Ray, stayed there until next morning and happened to meet Homer Smith at the railroad track. He claimed that Smith cursed him and reached in his glove compartment and that is when he (Clarence Johnson) shot him and after which he went off in the woods and went to sleep.
On cross examination Clarence Johnson admitted that he had been convicted of murder at a previous time. He denied that he had told Laura McCall that he was going to kill a man or that after the shooting he had said to Taylor, "I told you I'd kill him."
I. It is earnestly argued that Clarence Johnson should have been permitted to testify and explain to the jury the details and circumstances of the difficulty between himself and Jimmie Threadgill because the State had previously produced evidence of such difficulty. Of course it is a general principle that where a matter has been gone into by one party to a cause, the other party has the right to explain away anything, if he can, that may have been brought out to his detriment. Cummings v. State, 34 Ala.App. 650, 43 So. 2d 326. Further if the State introduced evidence of a prior difficulty which is illegal, the defendant can show all the particulars *479 of the difficulty, even though illegal, to rebut the illegal evidence introduced by the State. Longmire v. State, 130 Ala. 66, 30 So. 413.
This case, however, presents a peculiar situation. It is not testimony of a previous difficulty between Clarence Johnson and the decedent Homer Smith which is sought to be introduced, but details of a difficulty between Clarence Johnson and Jimmie Threadgill. Clarence Johnson was not being tried for any crime involving Jimmie Threadgill and in our judgment nothing detrimental to Clarence Johnson was brought out in connection with the previous difficulty with Jimmie Threadgill nor was any illegal evidence introduced. The proof introduced by the State explained why the defendant had the shotgun with him in that Clarence Johnson felt the need of having the shotgun to protect himself against the acts of Jimmie Threadgill. The allowance of such proof was proper. Rollings v. State, 160 Ala. 82, 49 So. 329.
Ordinarily the details of a prior difficulty are not admissible beyond the proof of the prior difficulty and its gravity. Bryant v. State, 252 Ala. 153, 39 So. 2d 657; Bowen v. State, 217 Ala. 574, 117 So. 204. The testimony of Clarence Johnson himself showed that he got his gun to protect himself against Jimmie Threadgill because of the previous difficulty. Beyond this the defendant could not have testified and did not testify with reference to the difficulty with Jimmie Threadgill. Beyond this there was no connection between the difficulty Clarence Johnson had with Homer Smith and the difficulty which he had with Jimmie Threadgill. It is settled that evidence is inadmissible to show a difficulty between the accused and a third person in no way connected with the victim or the offense. Wiggs v. State, 24 Ala.App. 22, 129 So. 706.
We accordingly find no error in the ruling of the court that there could be no further inquiry into the prior difficulty between Clarence Johnson and Jimmie Threadgill.
II. There was no error in admitting the testimony of Tate, the Deputy Sheriff, as to the statement claimed to have been made to him by Clarence Johnson in which he admitted planning to waylay Homer Smith and whip him. Towns v. State, 32 Ala.App. 483, 27 So. 2d 235; Patty v. State, 242 Ala. 304, 6 So. 2d 399; Stephens v. State, 250 Ala. 123, 33 So. 2d 245.
III. There was no error in allowing the State to show the former conviction of Clarence Johnson for a felony. The State had the right to show for purposes of impeachment that Clarence Johnson had been previously convicted of a felony involving moral turpitude. Ragland v. State, 238 Ala. 587, 192 So. 498; Rollings v. State, 160 Ala. 82, 49 So. 329; § 434, Title 7, Code of 1940.
IV. There was no error in allowing proof of what the defendant said shortly before and immediately after the shooting of Homer Smith. In Willingham v. State, 261 Ala. 454, 74 So. 2d 241, 244, reference was made to the long established rule of this jurisdiction that, "`The acts, declarations, and demeanor of an accused, before and after the offense, whether a part of the res gestae or not, are admissible against him, but unless a part of the res gestae are not admissible for him.'"
V. On the authority of Blue v. State, 246 Ala. 73, 19 So. 2d 11, it is argued that the questions propounded to Clarence Johnson by the solicitor were such as to create ineradicable bias in the minds of the jury and thereby prevent a fair trial. We have considered the record in this respect very carefully and find no merit in this position. There is no need to set out all the questions and answers but we do set out the last two or three questions and answers in order that the matter may be understood.
The Court thereupon said to the solicitor, "Just ask direct questions. That is too argumentative."
The only question which might be said to have been out of line was the last question and the court admonished the solicitor that the question was too argumentative.
We find nothing to sustain the view that such ineradicable bias was engendered in the minds of the jury as to prevent a fair trial.
Not only have we considered the matters stressed in brief by counsel but we have also read the record with great care and it is our considered judgment that there is no error in the record and that the judgment of conviction is due to be affirmed.
Affirmed.
All the Justices concur. | December 13, 1956 |
d5287780-77c6-4d74-842c-e5aa6e3bd88a | Dozier v. Troy Drive-In-Theatres | 89 So. 2d 537 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 537 (1956)
L. L. DOZIER et ux.
v.
TROY DRIVE-IN-THEATRES, Inc.
4 Div. 762.
Supreme Court of Alabama.
June 14, 1956.
Rehearing Granted September 13, 1956.
*540 Oliver W. Brantley and John C. Walters, Troy, for appellants.
E. C. Orme, Troy, for appellee.
PER CURIAM.
This is an appeal by defendants from a final decree in equity in which the court made declaration that the option contained in an agreement, therein referred to, was valid and enforceable; and then proceeded to decree a specific performance of it.
The bill of complaint was filed by appellee, as the assignee of the option referred to, against the grantor of the option, and sought declaration as to its rights under the option agreement and that it had exercised the option; but defendants claim it is void and unenforceable. The bill sought the supplemental relief of specific performance. The equity of the bill was sustained on former appeal. Dozier v. Troy Drive-in-Theatres, Inc., 258 Ala. 417, 63 So. 2d 368.
The bill alleges that a lease with option agreement was made between defendants as lessors and M. H. Carter as lessee with the right by Carter to purchase at his option on the terms specified. The option agreement provided for an assignment *541 of the lease by the lessee, and the assignee was to have the same rights. The lease together with the diagram attached were made exhibit "A" to the bill. (The lease will be set out in the report of the case.)
The lease containing the option was dated August 25, 1949. On October 7, 1949 a survey was made by a competent surveyor of the nine acres, as authorized by the contract, and a copy of the survey attached to the contract. On October 11, 1949 Carter assigned the lease to this complainant. The lease with diagram attached were filed for record in the Probate Office of Pike County on October 12, 1949. There was no acknowledgment nor proof of execution as provided for in section 18, Title 47, Code.
Defendants and Carter, the lessee, agreed on the location of the nine acres. Complainant went into possession and constructed a drive-in-theatre, as contemplated by the contract, at a cost of approximately $40,000. Defendant Dozier visited the land often during construction. Carter paid defendants $360, as provided by the agreement, for the first year's rent as evidenced by check dated September 19, 1949. Carter, who was president of the complainant corporation, advised defendants by letter that he wanted to take up the option and buy the land.
It is not contended that the acceptance of the option was not a sufficient compliance with the requirements of the agreement. The only contention made by appellants is that the option agreement was void for reasons which we will now discuss. The first is that it is void for that it is within the statute of frauds. Title 20, § 3, Code. The theory of appellants in respect to the statute of frauds is that when the option is to purchase land to be selected afterwards by the purchaser, it is within the statute of frauds and void for failing to describe the land. The principle relied on is that to satisfy the statute of frauds, the contract for the sale of land must describe it with such certainty that it can be identified without the aid of oral evidence. Shannon v. Wisdom, 171 Ala. 409, 55 So. 102; Alabama Mineral Land Co. v. Jackson, 121 Ala. 172, 25 So. 709; Ezzell v. S. G. Holland Stave Co., 210 Ala. 694, 99 So. 78; Jones v. Pettus, 252 Ala. 12, 39 So. 2d 12. But a general description may be made specific and certain by parol evidence of concurrent facts and circumstances sufficient to that end. Meyer v. Mitchell, 75 Ala. 475; Dobson v. Deason, 248 Ala. 496, 28 So. 2d 418.
The case of Alabama Mineral Land Co. v. Jackson, supra, is relied upon by appellants in this connection. It was a suit at law by the seller against the purchaser for the breach of a contract whereby plaintiff was to sell "`timber from a continuous block of ten thousand acres, consecutive sections, in a northwesterly line from Maplesville, townships 21 and 22,' the purchaser to determine upon a continuous body of lands, mineral lands excepted, and to designate the same to seller on a day named". The purchaser failed to designate the land contemplated and failed to make the payments provided for in the writing. The reasoning of the decision is closely confined.
With respect to an option, the case of Wilkins v. Hardaway, 173 Ala. 57, 55 So. 817, differentiated the Jackson case, supra, by observing that in it there was no exercise of a right of option, and no designation of the lands. In the Wilkins case the particular land involved was to be determined by a survey which was to be made, followed by an exercise of the option. Nothing was said about the necessity of a writing designating the land. In the Wilkins case the Court expressed the view that Howison v. Bartlett, 141 Ala. 593, 37 So. 590, and Alabama Central R. Co. v. Long, 158 Ala. 301, 48 So. 363, 364, were more in point, since there was in it an exercise of the option and designation of the lands. In the Long case defendant agreed to execute a deed conveying "such lands as *542 may be in actual use or occupancy by it on the completion of its roadbed over" certain described land. In a suit for specific performance, the statute of frauds was pleaded on the authority of the Jackson case, supra. The Court observed:
In the case of Howison v. Bartlett, supra, it is said: "Though the contract does not of itself indicate with certainty the quantity or precise location of [the land intended to be sold, if] the description given * * * renders the property capable of identification by means of a survey", such contract if otherwise valid, can be specifically enforced.
In the case of Meyer v. Mitchell, 75 Ala. 475, the contract was to sell "fifty acres Comida and Cone bottom, also ten acres hillside woodland adjoining the Mitchell tract". The Court held that unaided by extraneous evidence of identification, it was void for uncertainty. But it was competent to show by parol evidence that in pursuance of its terms the land intended was pointed out and designated by the parties, and the purchaser placed in possession, and thus aided the ambiguity was cured.
In the case of Alabama Corn Mills Co. v. Mobile Docks Co., 200 Ala. 126, 75 So. 574, it is said: "An easement or right of way over a definitely described tract of land may be effectively granted, and its particular location on the tract fixed, through the aid of a court of equity, even though the grant does not define the boundaries of the way intended to be so granted." To like effect is Long v. Gill, 80 Ala. 408.
In the case of Lightsey v. Stone, 255 Ala. 541, 52 So. 2d 376, there was an agreement to convey a portion of a lot as soon as a survey could be made to determine the amount needed. The question was the statute of frauds. The Court found that the contract was in writing and sufficient under the statute of frauds, citing cases to which we have here referred.
In the case of Alabama Power Co. v. Ray, 260 Ala. 506, 71 So. 2d 91, a deed was made conveying the right to construct, operate and maintain its wires, poles and towers, as located by the final survey heretofore made by said company. It was said the instrument is not void for want of sufficient description of the easement, citing cases supra.
*543 In 37 C.J.S., Frauds, Statute of, § 190, p. 675, it is said that "Courts hold that, where a written contract of sale designates the land as a certain amount of land to be selected from a definitely named tract, it furnishes a definite mode of ascertaining the subject matter and, where the selection has been made at the time suit is brought, the agreement will be held valid and enforceable", citing Alabama cases, supra, and others. And "Where the purchaser or lessee is put into possession, or takes possession with the acquiescence of the vendor or lessor, of a definite tract of land, the identity of the subject matter is established and any uncertainty or indefiniteness in the description thereof is removed." And in 91 C.J.S., Vendor & Purchaser, § 91, p. 974, it is said that "The contract of sale may, without specifically describing the realty contracted for, make a provision for its selection thereafter".
Here the evidence shows that the selection was made with the concurrence of the lessor; and that the survey was made as provided and attached to the contract.
Appellants contend in brief that although the lease violates the statute of frauds at its inception, and may have been taken from its operation by complainant being put in possession as lessee and the payment of rent, but that the option was not taken out of the statute of frauds because there was no possession referable to the contract of purchase and no part of the purchase price was paid. Reliance is had on Linn v. McLean, 85 Ala. 250, 4 So. 777, which supports the contention. In that case there was a lease with an option to purchase. There was a letter of acceptance by the attorney for the lessee, but he was not authorized in writing. The suit was against him for the purchase price. He claimed the statute of frauds. The Court held there was no valid acceptance. That the possession he held was as lessee, not as purchaser, and that the amount he paid was rent not purchase price or any part of it.
Although counsel may have made the correct answer to any contention that there was a delivery of possession and part payment of the purchase money as a compliance with the statute of frauds, we are not in agreement with him that the option contract is void for insufficient description of the land taken in connection with evidence of the survey and the location of it with the consent and acquiescence of the lessor. We think the contract is not void for uncertainty and indefiniteness in the description, and therefore the option is not void for that reason.
It is also insisted that the option is invalid for that it violates the rule against perpetuities, in that, it prescribes a period longer than twenty-one years (there being no reference to lives in being) as prescribed by the common law, in which the option may be exercised. Crawford v. Carlisle, 206 Ala. 379, 89 So. 565.
Section 6922, Code of 1923, prescribed a period (not applicable to personal property, nor at all to the wife and children) of three lives in being and ten years. That statute was repealed by an Act approved July 31, 1931, General Acts 1931, page 816, expressing a purpose to reinstate the common law against perpetuities applicable alike to land and personal property. Section 16, Title 47, Code. It is claimed that an option to purchase land which may be exercised beyond said period of twenty-one years (not relating to lives in being), would violate the common law rule against perpetuities. Gray on The Rule against Perpetuities, section 330; 70 C.J.S., Perpetuities, § 13(c), p. 592.
It is said in section 230(3) of Gray on The Rule against Perpetuities: "An option to a tenant for years to purchase the fee, exercisable at a remote time, is bad as violative of the Rule against Perpetuities". But that statement is not adhered to in most American decisions, and this is so stated by Gray in a footnote.
*544 We quote section 395, at page 2326, of Restatement of the Law of Property:
In Fratcher on Perpetuities and Other Restraints, section 399, is the following:
In the Law of Future Interests section 1244, at page 162, by Simes and Smith, it is said:
In 6 American Law of Property section 24.57, is the following:
In America it is undoubtedly true that the option to purchase in a lease for years puts the rule against perpetuities in the same status as the option to renew which is exempt from the rule, but in England the option to purchase in such lease is subject to the rule.
In the instant case, the lease undoubtedly means to confer on the lessee the option to purchase during its (valid) term. Certainly there is nothing to indicate a purpose to extend beyond the effective termination of the lease. The lease is for ninety-nine *545 years, and if it is valid for that length of time, the option extends over the same period.
While section 18, Title 47, Code, provides that no leasehold estate can be created for more than ninety-nine years, it also provides that leases for more than twenty years shall be void for the excess over twenty years unless acknowledged or proved as required by law as to conveyances and recorded within one year after execution. The lease here in question was recorded within one year after its execution, but it was not acknowledged or proved as required.
The result seems to be that the term of the lease is for twenty years and not for ninety-nine. The option is to be exercised during the period of the lease, but (by its terms) not within one year after its date. The rule against perpetuities is twenty-one years: therefore, on that theory the option would not be within the rule. The statute which fixed the term of the lease on that date fixed the time in which the option may be exercised.
But it is contended that the option rights are to be determined as of the time of executing the contract, and not affected by later acknowledgment and recording; and at that time the lease was not acknowledged, proved or recorded. So that, at that very time it did not exceed twenty years, and there was no element of cutting it down by subsequent events. It could be extended to ninety-nine years by subsequent events, to wit, by an acknowledgment or proof and then recording, if done within the year.
We think it is clear that the option to purchase by the lessee contained in the lease was not invalid for violating the rule against perpetuities.
It is also argued that the provision in the contract reserving to the lessor a right to repurchase, to be exercised within thirty days, on condition subsequent that if an assignee of the lease who purchases the property (the status of this complainant if his option is enforced) shall undertake to sell it, is itself void as violative of the rule against perpetuities, and such reserved right is a part of the consideration of the contract which is therefore void because based upon an illegal consideration. This also applies to the right to repurchase if the property is used for any other commercial purpose than a drive-in-theatre.
Appellant relies upon the principle asserted in many cases that the reservation of an option to repurchase by the grantor in a conveyance, without limit of time but on condition subsequent, is subject to the rule against perpetuities. Restatement of the Law of Property (Perpetuities) section 394; Gray on The Rule against Perpetuities section 330. However, this is controverted by many authorities. 162 A.L.R. 583, et seq.
But where there is a conveyance of land with a right to repurchase expressed in it without limit of time, it is of course only the option, and not the conveyance, which is void, if any of it is void, on account of the rule against perpetuities. Hill v. Gray, 160 Ala. 273, 49 So. 676; Woodall v. Bruen, 76 W.Va. 193, 85 S.E. 170; Dodd v. Rotterman, 330 Ill. 362, 161 N.E. 595; Restatement of the Law of Property section 402; 162 A.L.R. 595; 70 C.J.S., Perpetuities, § 21, p. 601.
Although an executory contract based on an illegal consideration is not ordinarily enforceable, it is said in Steele v. Drummond, 275 U.S. 199, 48 S. Ct. 53, 54, 72 L.Ed. 238:
That principle has been applied in our cases. Lowery v. Zorn, 243 Ala. 285, 9 So. 2d 872; Bankers & Shippers Ins. Co. of New York v. Blackwell, 255 Ala. 360, 51 So. 2d 498.
We apprehend that the court would not specifically perform a contract to execute a deed with a clause in it providing for a right to repurchase the land by the grantor on conditions and with stipulations which would violate the rule against perpetuities. Horticultural Development Co. v. Lark, 224 Ala. 193, 139 So. 229. But if the stipulation by which the grantor is to have the privilege of a repurchase on the occurrence of the condition named is a limitation on the fee to be conveyed, presently vested, it has been held by this Court that such a limitation does not violate the rule against perpetuities, for a conditional reservation presently vested is not subject to that rule although exercisable on a contingency. Libby v. Winston, 207 Ala. 681, 93 So. 631; Hinton v. Gilbert, 221 Ala. 309, 128 So. 604, 70 A.L.R. 1192.
We think the reservation provided for in the contract here involved is a limitation on the fee to be conveyed, in the nature of a condition subsequent, Thompson v. Leyden, 222 Ala. 81, 130 So. 780, which is not affected by the rule against perpetuities because, as stated by the authorities, a valid conveyance can presently be made by the grantor and grantee joining in it. 70 C.J.S., Perpetuities, § 56, p. 657, 70 A.L.R. 1197. For it is said in French v. Old South Society, 106 Mass. 479, see, 70 A.L.R. 1198, if a perpetuity means that "`if all that have interest join, yet they cannot bar or pass the estate' * * * here is no violation of the rule, for the plaintiff and defendants could at any time join in a conveyance of the property". This theory is based upon the principle that the purpose of the rule is to prohibit the owner of property, by deed or devise, to withdraw it from commerce, so that it cannot again get into commerce during the prescribed period by the act of any or all of the interested persons. It is then irrevocably withdrawn from commerce and cannot be reinstated during that period. While that is stated as the meaning of the rule by the Massachusetts case, supra, it is not so regarded by some other authorities. Gray on Perpetuities section 305.2. The following is a quotation from Church in Brattle Square v. Grant, 3 Gray, Mass., 142, copied in the annotation of Hinton v. Gilbert, supra, 70 A.L.R. at page 1197, and is directly in point:
This theory is supported by many American cases,Gray on The Rule against Perpetuities, sections 304, 310,though not approved by Gray. We quote section 310, as follows:
It was first stated as the English rule in Birmingham Canal Co. v. Cartwright, (L.R.) 11 Ch.Div. (Eng.) 421. This was overruled in London and S. W. Co. v. Gomm, (L.R.) 20 Ch.Div. (Eng.) 562, see 162 A.L.R. 583. According to this last opinion the English rule is that an option reserved in a deed is subject to the rule against perpetuities. But we are standing by the principle first stated in England in the Cartwright case, supra, that the reservation of a right to repurchase creates a conditional fee, and is a presently reserved vested right in the grantor, although its exercise is dependent on a future contingency.
In that connection our case of Hinton v. Gilbert, supra, is reported in 70 A.L.R. 1192 as a leading authority, and our case of Libby v. Winston, supra, is noted as supporting it. These cases are based upon a construction of the instrument as conveying a conditional fee, thereby reserving a right which never passed from the grantor but exercisable on a contingency. Therefore, both the grantor and grantee have an interest in the fee which they can convey and thereby relieve the property of the exemption from trade which the rule seeks to prohibit. These cases have created a rule of property in this State which we should uphold.
Appellants also complain that the court ignored their cross bill seeking a declaration that the lease only extends for twenty years under the statute. Section 18, Title 47, Code. But as to that, there is now no justiciable controversy. The question may never reach the justiciable stage, for within the twenty year period the lessee or his assignee may acquire the conditional fee herein described. This Court will not inquire into and make declaration as to a controversy which may never reach a status proper for court action. Gambill v. Greenwood, 247 Ala. 149, 22 So. 2d 903. The expressions in this opinion in that respect are not in the nature of a declaratory judgment, but only stated as incidental to the other questions involved.
Appellants further complain of the final decree that it does not respond to their contention that complainant should be enjoined from the use of the demised premises for an unlawful purpose: that is, by operating a gift enterprise in violation of the law against gaming in connection with the business of a drive-in-theatre for motion pictures. The lease provides that the property shall be used for no other commercial purpose than the operation of a drive-in-theatre. The cross bill alleges and the proof shows that periodically complainant has been putting on a series of gift enterprises in connection with the picture shows and as an inducement to the public to attend and pay the entrance fee. A description of such enterprises, given in evidence, shows that they violate the statute and Constitution. Section 275, Title 14, Code; section 65 of the Constitution; Grimes v. State, 235 Ala. 192, 178 So. 73. Appellants claim the right to an injunction because such use violates the contract, in that, it is a use of the premises for other commercial purposes than a drive-in-theatre and because as landlords they have a right to enjoin the use of their premises for unlawful purposes.
We think such use does not violate the terms of the lease in respect to commercial purposes. The only commercial aspect of the scheme is to stimulate attendance at the theatre and add to its success commercially. The gift enterprises are not of an independent commercial sort and are not within the terms of the prohibition in the lease.
The lessors have no more right to enjoin a nuisance on the premises than *548 any other person, unless the lease prohibits it either expressly or impliedly, or they suffer special damage in that respect. Section 1084, Title 7, Code; 51 C.J.S., Landlord and Tenant, § 343, p. 1030.
If this bill of complaint describes a nuisance, it is public in nature and a court of equity at the suit of the State by the Attorney General may enjoin it, although it is the injunction of criminal conduct which is ordinarily not subject to injunctive relief. Section 1084, supra; State v. Ellis, 201 Ala. 295, 78 So. 71, L.R.A.1918D, 816; Try-Me-Bottling Co. v. State, 235 Ala. 207, 178 So. 231. This may also be done by cities under certain circumstances. Section 1085, Title 7, Code. But a private individual cannot have injunctive relief against a public nuisance unless he shows irreparable injury and damage peculiar to him, and such damage must relate to the use and occupancy of property as distinguished from damage to market value of property not used or occupied. Russell v. Holderness, 216 Ala. 95, 112 So. 309; Hanna v. Harman, 230 Ala. 620, 162 So. 109; Howard v. State, ex rel. Andrews, 238 Ala. 185, 190 So. 278, 279; Scruggs v. Beason, 246 Ala. 405, 20 So. 2d 774.
For the reasons stated in Try-Me-Bottling Co. v. State, supra, and as provided in section 1084, Title 7, the lottery or gift enterprise here referred to is a public and not a private nuisance. Cross complainants show no injury to themselves resulting from it, especially such as is irreparable.
For the reasons indicated the injunction was denied by the trial court without error.
It is our view that the lease option agreement is not void for any reason here considered, and that the decree of the court to that effect should be affirmed. That feature of the decree providing for specific performance is also justified by the facts, except the provision to be inserted in the deed directed to be executed by defendants (these appellants) for a covenant on the part of the grantee that on the contingency named appellants shall have the option to repurchase, should be eliminated and there should be inserted in the decree providing for a deed, in lieu of that clause, one declaring that the conveyance is of a conditional fee whereby, upon the occurrence of the conditions expressed, appellants shall have the option to repurchase the land on the terms thus expressed.
The decree should be affirmed as modified.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
As modified the decree is affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.
PER CURIAM.
The application for rehearing is granted, and the judgment as to cost of appeal is modified so as to tax cost of appeal equally between appellants and appellee.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | September 13, 1956 |
77a78833-6b04-44bf-84de-954bdfe23378 | Carpenter v. Huffman | 314 So. 2d 65 | N/A | Alabama | Alabama Supreme Court | 314 So. 2d 65 (1975)
Ralph CARPENTER and Dorothy Carpenter
v.
Lizzie HUFFMAN.
SC 1029.
Supreme Court of Alabama.
June 5, 1975.
*66 Owen & Ball, Bay Minette, for appellants.
Chason Stone, Chason & Partin, Bay Minette, for appellee.
JONES, Justice.
This case involves a boundary line dispute between coterminous landowners, Ralph and Dorothy Carpenter (appellants) and Lizzie Huffman (appellee). The land in question is a forty-foot wide strip which runs along the south border of the Carpenters' land and the north boundary of Mrs. Huffman's land. Although the deeds of the two parties are in accord as to their common boundary line, the disputed strip, which Mrs. Huffman claims by adverse possession, begins at the common record boundary and extends 40 feet into the property described in the Carpenters' deed.
After a hearing on the evidence, the trial Court decreed that the true boundary line between the properties of the parties was forty feet north of that shown in the deeds of the parties, thus vesting title in the disputed strip in Mrs. Huffman.
The agreed statement of facts indicates that Phil Alexander, the brother of Mrs. Huffman, bought four acres of land, which included the disputed strip, in 1948; but he did not receive a deed to it until 1953. He fenced in the four acres, running the fence along what he believed to be the correct property line, though in actuality the fence line was incorrectly some 40 feet north of his true boundary.
*67 In 1959, he sold one-half acre to Mrs. Huffman and her northern boundary line was placed along the fence which Alexander had erroneously erected earlier. At that time Mrs. Huffman built a house on the one-half acre, half of which was on the disputed strip. A portion of the fence on her northern border was removed during the construction of her house. Also, a driveway was built which ran across the strip in question and a pump was placed in one of the old fence postholes. In 1968, she conveyed the property back to Alexander who in turn reconveyed it to her in 1971.
At the time the Carpenters purchased their property, the pump, the driveway, and a portion of the fence were standing. Their grantor informed them that "the fence was in the wrong place," so they had a survey made which showed, as did the original deeds, the true boundary line as 40 feet south of the old fence and running through the middle of Mrs. Huffman's house. This action was commenced on April 10, 1974, when Mrs. Huffman refused to sign an agreement to have her house moved.
This appeal presents the issue whether there is sufficient evidence to sustain the trial Court's holding of privity of possession between Mrs. Huffman and her brother to allow her to tack her periods of possession onto his in order to establish title in Mrs. Huffman to the disputed strip by adverse possession. Because the facts are virtually undisputed, the essence of our function is to determine whether the trial Court correctly applied the law to those facts.
We hold that there was sufficient privity of possession to allow tacking and affirm the decision of the lower court establishing the boundary line between the parties.
Our adverse possession statute, Tit. 7, § 828, Code of Alabama 1940 (Recomp.1958), provides that it does not apply to cases involving a question as to boundaries between coterminous owners. The three alternative prerequisites 1) deed or other color of title, 2) annual listing of land for taxation, or 3) title by descent cast or devise from a predecessor, therefore, are not necessary to sustain a claim to title by a coterminous owner. Lay v. Phillips, 276 Ala. 273, 161 So. 2d 477 (1964); Sylvest v. Stowers, 276 Ala. 695, 166 So. 2d 423 (1964). That is to say, although the claimant is relieved of these three alternative conditions prescribed by § 828, he may still acquire title by the exercise of adverse possession for a period of ten years. Cambron v. Kirkland, 287 Ala. 531, 253 So. 2d 180 (1971); Lay v. Phillips, supra; McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160 (1954). However, the requirements that possession be open, notorious, hostile, continuous and exclusive are still applicable. Thompson v. Odom, 279 Ala. 211, 184 So. 2d 120 (1966).
As summarized in McNeil, supra, the general rule is:
The Carpenters cite Wilson v. Cooper, 256 Ala. 184, 54 So. 2d 286 (1951), as authority for their contention that Mrs. Huffman should not be allowed to "tack" her period of possession onto that of her predecessor in order to achieve the minimum ten-year period required to gain title by adverse possession. Wilson stated that a party claiming title by deed which describes the land conveyed by government numbers could not acquire title to a disputed area beyond the government line which his predecessors in title had acquired by adverse possession.
*68 We agree that ordinarily title to land gained by adverse possession must be included in the deed of conveyance in order for it to effectively pass to the grantee. But where, as here, the predecessors of Mrs. Huffman had not yet gained title to the disputed strip at the time of their conveyance to her but had possessed it adversely, the failure to include in the deed the description of the disputed strip would not of itself disallow tacking. The rule is aptly summarized in Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 74 (1967), quoting from 3 Am.Jur.2d, Adverse Possession, § 65, p. 156:
Thus, Graham stands for the applicable proposition that when the grantee is put into actual possession of the disputed land adversely held by his immediate grantor, sufficient privity is established to allow tacking. See also Withers v. Burton, 268 Ala. 365, 106 So. 2d 876 (1958); Motley v. Crumpton, 265 Ala. 565, 93 So. 2d 413 (1957); Spires v. Nix, 256 Ala. 642, 57 So. 2d 89 (1952).
The facts of this case fall squarely within the Graham rule and the trial Court was correct in holding that the disputed strip should remain with Mrs. Huffman and not belong to the Carpenters.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur. | June 5, 1975 |
d41cdd7e-e714-463e-8d00-4ebeaf7349f0 | State Ex Rel. Woodruff v. Centanne | 89 So. 2d 570 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 570 (1956)
STATE ex rel. James E. WOODRUFF
v.
Bernice H. CENTANNE, Clerk, City of Prichard.
1 Div. 664.
Supreme Court of Alabama.
September 6, 1956.
Collins, Galloway & Murphy, Mobile, for appellant.
Vernol R. Jansen, Mobile, for appellee.
PER CURIAM.
This is an appeal by petitioner (appellant) from a judgment denying him a mandamus to the clerk of the city of Prichard, Mobile County, for the issuance of a city license to sell package beer to be drunk off his premises.
The answer of the clerk to the petition invoked an ordinance of the city, which *571 provides for a license charge of $250 for "Beer Parlors, Beer Package Stores, or other places where beer or other malt beverages are sold or offered for sale". But the ordinance also provides that "no license shall be issued to any establishment which is nearer than five hundred (500) feet by the route usually traveled from any church or schoolhouse." (There are other restrictions not here involved.) The answer alleges "that the place of business operated by petitioner is less than five hundred (500) feet from a school, the facts being that the school yard is directly across the street from petitioner's place of business and is frequented by small children who purchase candy, soda water, cakes and other small purchases, that petitioner's place of business is regularly visited at recess and lunch hour by the pupils of the school". Other details are stated which are immaterial to the issue made.
Appellant contends (1) that the ordinance violated section 89 of the Constitution of Alabama, in that it is inconsistent with the general laws of the State; (2) that his place of business is more than five hundred feet from the schoolhouse in question, though within five hundred feet from the school grounds connected with the schoolhouse.
The record shows that the trial "court announced that the petition for the writ was denied for that the petitioner's business was located nearer than five hundred feet to the school". The court also announced other rulings which are not involved on this appeal; and rendered a final judgment denying the petition,from which petitioner appealed to this Court.
The matters controverted on appeal are that the ordinance is void under section 89 of the Constitution or, if not, that petitioner's place of business is not within five hundred feet of a "schoolhouse".
It is well settled that the fact that an ordinance enlarges upon the provisions of a statute by requiring more restrictions than contained in the statute creates no "conflict," unless the statute limits the requirements for all cases to its own prescriptions. Smith v. Town of Notasulga, 257 Ala. 382(2), 59 So. 2d 674; City of Birmingham v. West, 236 Ala. 434, 183 So. 421; Mitchell v. City of Birmingham, 222 Ala. 389,133 So. 13.
The provisions of the ordinance here in question, to which we have referred, do no more than add restrictions to the statutory provisions in that respect. The statute does not prescribe restrictions to be exclusive of all others. Therefore, the first contention of appellant cannot be sustained.
But the meaning of "schoolhouse" as used in the ordinance needs further consideration. The evidence was without conflict that petitioner operated a grocery store at a location zoned for business, at a street corner, in the city of Prichard, which was located more than five hundred and eighty feet from a school building although the school grounds were separated from the property occupied by petitioner's store by only a sidewalk; and that on March 31, 1955 petitioner secured a license from the Alcoholic Beverage Control Board for the sale of package malt beverages for off premises consumption. Other formal matters and ordinance requirements are shown to have been complied with. As to them no question is here presented.
The real controversy argued by petitioner, who is the appellant, is that the trial court erred in holding that "schoolhouse" as used in the ordinance, includes the "school grounds." We suppose this has reference to the play grounds connected with the school, as well as such other ground as is necessary for ingress and egress to the building itself. The evidence does not give any detail as to the size and uses of the "school ground" involved. The burden being on appellant, we will presume *572 that the "school ground" means the area around the school building or in close proximity to it for use by the pupils for play and other forms of recreation such as is customary.
It is clear from the authorities that there has been no uniformity in the terms of ordinances of a somewhat similar import or as to their meaning. The cases are analyzed in 48 C.J., Intoxicating Liquors, § 136, pp. 245 and 246, and in 96 A.L.R. 778, et seq. State ex rel. First Presbyterian Church of Miami v. Fuller, 136 Fla. 788, 187 So. 148. Sometimes the terms "church" and "school" seem clearly to refer to the building and sometimes the ordinance or law itself makes the meaning clear in that respect. Our cases do not seem to be controlling on the question here controverted. State ex rel. Cummings v. Styles, 121 Ala. 363, 25 So. 1015; Love v. Porter, 93 Ala. 384, 9 So. 585; Olmstead v. Crook, 89 Ala. 228, 7 So. 776; Carlisle v. State, 91 Ala. 1, 8 So. 386; Dorman v. State, 34 Ala. 216.
We recall the rule that tax levies are to be construed liberally in favor of the taxpayer and strictly against the levying power, 18 Ala.Dig., Statutes, p. 234. This applies to municipal corporations. Alabama Ice & Utilities Co. v. City of Montgomery, 252 Ala. 131, 40 So. 2d 198.
If the "schoolhouse" sometimes includes the play ground surrounding the school building, it may serve to make the term here used ambiguous. If it is ambiguous, the ambiguity should be resolved in favor of the taxpayer unless the circumstances and inherent nature of the restrictions overcome that theory.
The city offered evidence that although they had no other ordinance with respect to the sale of packaged beer, they made it a rule not to permit its sale in grocery stores because they often carried it in refrigeration and it was drunk in automobiles near the premises, and often such stores kept open later at night and on week-ends and thus competed with stores which did not sell beer. The trial court disallowed this evidence and properly so, but it suggests an argument to the effect that the main purpose in declining to issue such a license was to prevent a condition which had no relation to the schooldrinking beer in automobiles near the school building late at night and on holidays when, as we know, school children were not involvedbut it was rather intended to repress that method of competitive business.
We can only say that a "schoolhouse" refers in terms to a building such as Webster defines as "`a building which is appropriated for the use of a school or schools'". Alexander v. Phillips, 31 Ariz. 503, 254 P. 1056, 1058, 52 A.L.R. 244. "School" may include the surrounding area used in connection with it if such appears to be the intent. License ordinances should use language sufficient to express their intent. The city authorities drafted and adopted the ordinance. If it has a clear meaning that must be the effect given it. But if the language is ambiguous it should be resolved against the city if that is a reasonable interpretation under the circumstances.
It is our view that the license was improperly refused petitioner on the ground that his place of business was less than five hundred feet from a schoolhouse.
We are not informed whether there is a provision in a city ordinance for the term of such a license (see, section 735 and 753, Title 37, Code), that is whether it is a calendar year. No point is here made (if it is true) that the term for which the license was sought has expired and, therefore, that the controversy has become moot. Jacks v. Jefferson County Board of Health, 219 Ala. 156, 121 So. 532. We refrain from discussing the effect of any such status, but it is noticed.
The judgment of the trial court should be reversed and the cause remanded.
*573 The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded.
SIMPSON, GOODWYN, MERRILL and SPANN, JJ., concur. | September 6, 1956 |
0d8478ad-e946-4e7c-8e53-9ee304146ee5 | Snead v. Davis | 90 So. 2d 825 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 825 (1956)
May Davis SNEAD
v.
Herbert DAVIS et ux.
8 Div. 802.
Supreme Court of Alabama.
November 15, 1956.
*826 Smith & Moore, Guntersville, for appellant.
No attorney for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from a judgment of the circuit court denying and dismissing a petition addressed to the judge of the circuit court for a habeas corpus, whereby petitioner sought to have awarded to her the custody of five minor children. By a previous decree of the court, said children had been awarded to Hubert Davis, their father, in a decree granting him a divorce from this petitioner on the ground of voluntary abandonment, not resisted by her. That decree was rendered August 9, 1954. The instant petition alleged that Hubert Davis died March 6, 1955, and appellees. Mr. and Mrs. Herbert Davis, have taken over the custody of the children. Herbert Davis is said in brief to be a brother of Hubert Davis. The circuit court denied and dismissed the petition for the reason as stated in the decree that it appears that the Juvenile Court of Marshall County has been given jurisdiction of this matter. We find nothing in the record to support that statement, and appellees have not furnished us with a brief indicating how the circuit court in equity lost, or why it does not retain, the jurisdiction assumed in the decree of divorce.
An appeal is the proper method of reviewing the judgment since it is a final judgment and appealable under Sec. 754, Title 7 (not under Sec. 369, Title 15, as amended, Cum.Pocket Part, Code 1940). Edwards v. Sessions, 254 Ala. 522, 48 So. 2d 771; Lynn v. Wright, 252 Ala. 106, 42 So. 2d 489; Thomas v. State, 215 Ala. 1, 109 So. 607.
The court of equity which awarded the custody of the children to Hubert Davis, their father, was in the exercise of its inherent powers, and a modification of that decree is also the exercise of that power. This power is often invoked by a petition for habeas corpus presented by one parent against the other. The purpose of the proceeding fixes its character. It is *827 immaterial how the power of the court is invoked, if the facts sufficiently appear, and appropriate relief is prayed for. Thomas v. State, supra; Thomas v. Thomas, 212 Ala. 85, 101 So. 738; Lynn v. Wright, supra.
The petition here is addressed to the court which rendered the divorce decree and awarded the custody of the children, and, in effect, seeks a modification of that decree, or a redetermination, in respect to the custody of the children. That court has the inherent right to modify that decree or redetermine custody, based upon the occurrence of events subsequent to the decree, or some other substantial reasons which are sufficient to justify such modification. The court having assumed jurisdiction and made the award in the divorce decree, its power and authority continues during the minority of the children, each respectively, and no other court can exercise it. Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580; Wright v. Price, 226 Ala. 468, 147 So. 675; Rosa v. Underwood, 235 Ala. 447, 179 So. 530; White v. White, 247 Ala. 405, 24 So. 2d 763; Padgett v. Padgett, 248 Ala. 234, 27 So. 2d 205; Stifflemire v. Williamson, 250 Ala. 409, 34 So. 2d 685; Ex parte Ingalls, 256 Ala. 305, 54 So. 2d 288; Wren v. Stutts, 258 Ala. 421, 63 So. 2d 370; Easterling v. Caton, 260 Ala. 543, 71 So. 2d 835; Vinson v. Vinson, 263 Ala. 635, 83 So. 2d 215; 8 Ala.Digest, Divorce, Cum.Pocket Part, Code of Alabama 1940.
The death of Hubert Davis does not affect the power of the court of equity which has assumed jurisdiction over the custody of the minors. They have become the wards of the court, and its power to control their custody is without the necessity of having before the court other persons than those who would be affected by its order. No person has a personal enforceable interest as of a property right. No one has succeeded to the right of the custody of the children on account of the death of the father, Hubert Davis. No property interest is involved. His death merely serves to enlist the duty of that court of equity to make other provision for the children's custody. This can be done, as here sought, by habeas corpus, which is but one means of bringing it to the attention of the court.
Section 351, Title 13, Code of Alabama 1940, confers on the juvenile courts of the state "as to such dependent, neglected, and delinquent children, * * * the jurisdiction and power possessed by equity courts," but "nothing contained herein shall deprive courts of general jurisdiction of the right to determine the custody of children upon writs of habeas corpus, or the right to determine the custody of children when custody is incidental to the determination of causes pending in such courts. Such courts of general jurisdiction may, however, decline to pass upon such questions of custody or to issue such writs and may certify said questions or writs to the juvenile court for hearing and determination."
In the case of Whitfield v. Saulsberry, 247 Ala. 690, 26 So. 2d 93, the court was dealing with an act applicable to Mobile, Title 62, Sec. 51, Code 1940which adopted the jurisdictional powers, etc., possessed by juvenile courts under Chapter 7, Title 13. In that case, Emmet Saulsberry filed a petition in equity for the custody of his minor child. It was filed against the maternal grandmother (the mother of the child was dead). The grandmother demurred to the petition on the ground that exclusive jurisdiction was given by the legislature to the juvenile court of Mobile. On appeal from a decree overruling the demurrer, this court relied on the opinion in Ex parte Pruitt, 207 Ala. 261, 92 So. 426, in substance, that the juvenile court had concurrent jurisdiction with the circuit court, in equity, over the custody of minor children, and that the court first assuming jurisdiction has the exclusive right to exercise it. There was nothing to show that the juvenile court had exercised prior jurisdiction.
*828 In the Pruitt case, supra, the circuit court, with the consent of the parties, had transferred to the juvenile court a proceeding to determine the custody of a minor child. It was contended that to authorize the transfer from equity conflicted with the constitutional power of a court of equity. But the court declined to consider that question since the parties had consented to the transfer, and the legislature had the power to create a court with concurrent jurisdiction, and the consent to the transfer was a waiver of objection to the method of that court acquiring jurisdiction.
In the instant case, the circuit court in equity had the question of custody of the children for hearing and determination as an incident to the divorce proceeding. We doubt the power of the equity court to decline to pass on the question of the custody of minor children when it arises incidentally in a divorce proceeding between the parties involved. We do not find where it has ever been done in this state. And when in such suit the equity court awards the custody of minors to one of the parties, that award is conclusive until it is changed by the court. Any subsequent change of the custody is properly in the form of a modification of that decree by the court which made the award. Bridges v. Bridges, 227 Ala. 144, 148 So. 816; Scott v. Scott, 247 Ala. 598, 25 So. 2d 673; Hardy v. Hardy, 250 Ala. 297, 34 So. 2d 212; Easterling v. Caton, 260 Ala. 543, 71 So. 2d 835.
We believe that the current of our cases indicates a purpose to limit the power to modify a decree of the equity court awarding the custody of minors, so that only the court which made the award can subsequently modify it based upon changed conditions.
In the instant case, there does not appear to have been any order to transfer the cause to the juvenile court, nor an effort to obtain such an order. The recital in the judge's order in this case indicates a conclusion that the juvenile court has been given exclusive jurisdiction of such matters. We have shown that such is not a proper interpretation of the statutes.
It is our view that the equity court should hear and determine the petition here presented as one to modify the decree previously rendered. It results that the decree is reversed and the cause remanded.
Reversed and remanded.
GOODWYN, MERRILL and SPANN, JJ., concur. | November 15, 1956 |
c2475b89-cf45-4f96-8aec-9280270e7a60 | Hill v. Delchamps Food Stores | 310 So. 2d 871 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 871 (1975)
Murray G. HILL, Jr., etc.
v.
DELCHAMPS FOOD STORES, a corporation.
SC 793.
Supreme Court of Alabama.
April 3, 1975.
William H. Saliba, Mobile, for appellant.
Sydney R. Prince, III, and E. L. McCafferty, III, Mobile, for appellee.
EMBRY, Justice.[1]
This case is here for the second time. The prior decision (McKleroy v. Delchamps Food Stores, 289 Ala. 127, 266 So. 2d 282) reversed and remanded. The trial court had granted a motion to exclude plaintiff's evidence. Such action by the trial court was error for the reasons stated in the opinion in McKleroy, supra. Prior to the second trial, after death of plaintiff Mrs. McKleroy, the action was revived in the name of her administrator, Murray G. Hill. The action was tried to the court, without a jury, on the transcript of evidence of the first trial supplemented by testimony of one additional witness. Testimony of the additional witness added nothing to plaintiff's case. The facts stated in our prior opinion are sufficient and will not be repeated here.
Judgment was rendered in favor of defendant, Delchamps; Hill now appeals.
Under Alabama law, where the record shows that a case is tried by the court, without a jury, and judgment rendered absent special findings of fact, or a request therefor, the conclusion of the trial judge will be affirmed unless clearly erroneous, *872 or manifestly unjust, if fairly supported by credible evidence under any reasonable aspect. This is true whether the action is grounded on substantive principles of law or equity. Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9; Hayes v. Kennedy, 292 Ala. 362, 294 So. 2d 739.
The evidence "was conflicting." The trial court's judgment is given the same effect as a jury verdict. Williams v. Romano, 289 Ala. 190, 266 So. 2d 750. There was sufficient evidence upon which the judge could conclude as he did.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.
[1] Briefs were carefully considered, as were taped oral arguments, by the author of this opinion. | April 3, 1975 |
8f81dd14-e7c0-4491-9694-7cf7759b8606 | Jones v. State | 306 So. 2d 45 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 45 (1975)
In re W. W. JONES and Bobby Weatherford
v.
STATE.
Ex parte W. W. Jones and Bobby Weatherford.
SC 919.
Supreme Court of Alabama.
January 9, 1975.
William H. Rogers, Moulton, for petitioners.
William J. Baxley, Atty. Gen., Montgomery, and Roger M. Monroe, Sp. Asst. Atty. Gen., Birmingham, for State.
PER CURIAM.
The writ of certiorari is quashed and the judgment of the Court of Criminal Appeals is affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX and FAULKNER, JJ., concur.
COLEMAN, J., dissents.
BLOODWORTH, McCALL and JONES, JJ., concur.
COLEMAN, Justice (dissenting):
The writ of certiorari was granted to review the validity of an instrument which the state contends is a search warrant.
The warrant as set out in the opinion of the Court of Criminal Appeals, 54 Ala. App. ___, 306 So. 2d 33 recites as follows:
"`Proof by affidavit having been made this day before me, by Kenneth Brown, an Auxiliary Deputy for the Lawrence County Sheriff's Department, that he has probable cause to believe and does believe that one William W. Jones, whose name is otherwise unknown, has concealed in one 1965 green Chevrolet automobile, bearing 1972 Tennessee license plates 89-C539, one or more counterfeit twenty dollar United States Treasury notes, Federal Reserve notes, or twenty dollar bills contrary to law, said automobile being now located in the parking lot behind the Lawrence County Sheriff's office.
"`You are hereby commanded to make immediate search, in the daytime, of the above-described automobile at the above-described location for one or more counterfeit twenty dollar Federal Reserve notes, Treasury notes or other legal currency of the United States Government and, if you find the same or any part thereof, to hold, retain and dispose of same, according to law and the further order of the Court, and you will make return thereof to the Intermediate Court Judge of Lawrence County, Alabama, of all your acts and doings, under this warrant.
"`Witness my hand as Intermediate Court Judge of Lawrence County Alabama, this 22nd day of February, 1973.
"`. . .'"
The statute defines a search warrant as follows:
*46 § 104, Title 15, Code 1940, recites:
". . .'"
§ 106, Title 15, provides:
§ 108, Title 15, provides:
It is clear that the instant warrant is not directed to any officer. § 106, Title 15, provides that the warrant may be executed by any one of the officers to whom it is directed "but by no other person, except in aid of such officer."
The statute confers on the officer to whom the warrant is directed the authority to break upon any door or window of a house, or any part of a house, or anything therein, if, after notice of his authority and purpose, he is refused admittance.
The authority to break open the door of a citizen's house is not to be lightly regarded. In dealing with search warrants, certain courts have made statements as follows:
". . .
*47 The instant warrant is not directed as required by statute. The warrant cannot be executed by any one of the officers to whom it is directed because it is not directed to any officer whatever.
If it is to be held that a search warrant is valid, although it is not directed to any officer whatever, then the statute requiring that the warrant be directed to the sheriff or to any constable of the county, and that the warrant be executed by one of the officers to whom it is directed, will be nullified.
The instant search warrant is invalid on its face and does not comply with the statutes regulating search warrants. The Court of Criminal Appeals erred in holding that the warrant is not invalid.
BLOODWORTH, McCALL and JONES, JJ., concur. | January 9, 1975 |
9b0dfd30-333f-4fa3-b63e-12f3a2d1de4d | Hall v. State | 306 So. 2d 294 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 294 (1975)
In re Robert M. HALL
v.
STATE.
Ex parte Robert M. Hall.
SC 1047.
Supreme Court of Alabama.
January 9, 1975.
James T. Gullage, Opelika, for petitioner.
No appearance for respondent.
*295 McCALL, Justice.
Writ denied.
HEFLIN, C. J., and MERRILL, COLEMAN, HARWOOD, BLOODWORTH and MADDOX, JJ., concur.
FAULKNER and JONES, JJ., dissent.
JONES, Justice (dissenting).
I disagree with the majority in denying the writ as to the second ground asserted in the petition.
The defendant excepted to that portion of the oral charge, "If they didn't have informers sometimes they could never obtain the evidence." This sentence, taken in context with the several preceding sentences, is pure argument, and, in my opinion, exceeds the bounds of judicial discretion. The function of the various offices of the court is clearly established in our system. It is not the function of the trial judge to play the role of an advocate. In his conduct of the trial, he must be totally neutral, leaving to counsel matters of argument and leaving to the jury the matters of judging the facts. Standing in contradistinction to the federal system, which allows the trial judge to comment on the evidence, is our Tit. 7, § 270, Code of Alabama 1940 (Recomp.1958).
Likewise, the last sentence of Rule 51, ARCP, states: "In charging the jury, the judge shall not express his opinion of the evidence."
Here, the jury had to decide who was telling the truththe police officer who testified that through an informer he located the defendant and purchased marijuana, or the defendant and his witnesses who denied that the officer was even present at the time and place of the alleged sale. After instructing the jury on the role of informers in law enforcement, the court concluded with the remark: "If they didn't have informers sometimes they could never obtain the evidence."
This statement was at the very least a contention by the court for the inference that the informer here had performed his function well in that he had obtained the evidence. It was an argument supportive of the State's witness's testimony that he had in fact learned of the defendant's illegal activities through an informer and thereby arranged for the purchase of marijuana from the defendant and effected his arrest.
It was my first impression that since the informer did not testify, the judge's reference to the informer in his oral charge was harmless. My reason for so concluding was that the judge's statement could be error only if it amounted to a comment on the credibility of the informer as a witness. I think this reasoning would be good if the court had stopped short of the last sentencethe very sentence here assigned as error. But the court added the last sentence: "If they didn't have informers sometimes they could never obtain the evidence." It was this additional instruction, in my opinion, that constitutes a comment upon the credibility of Officer Patterson's testimony. See Mays v. State, 45 Ala.App. 337, 230 So. 2d 248 (1970); and 83 A.L.R.2d 1128.
I would grant the writ.
FAULKNER, J., concurs. | January 9, 1975 |
790726cf-0560-49d4-b3dd-89aadd50d081 | Parker v. State | 94 So. 2d 209 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 209 (1956)
Rodgers PARKER
v.
STATE of Alabama.
6 Div. 890.
Supreme Court of Alabama.
November 1, 1956.
Rehearing Denied April 4, 1957.
*210 Skidmore & Davidson, Tuscaloosa, for appellant.
John Patterson, Atty. Gen., Robt. Straub and Wm. C. Younger, Asst. Attys. Gen., for the State.
STAKELY, Justice.
Rodgers Parker (appellant) was indicted for the murder of George Wynn, deceased. Trial was had on a plea of not guilty with the result that the jury returned a verdict of murder in the second degree, fixing the punishment at 30 years imprisonment in the penitentiary. The court adjudged and sentenced the appellant accordingly and from such judgment this appeal is taken.
I. On the day set for the trial a motion was filed to quash the venire on the ground, among others, "that the sheriff did not summon Floyd E. Jennings as a juror as required but did summon one Floyd E. Jenkins as a juror instead of the said Floyd E. Jennings." The evidence shows that the defendant was served with a copy of the venire which listed as number 38, Floyd E. Jennings, Beat 16, Foreman, 1629 First Avenue, Central Foundry.
The evidence further shows that Floyd E. Jenkins was served with the summons and served as a regular juror for two days during the week of defendant's trial. After making the motion that Jenkins had been summoned instead of Jennings, the court ordered the sheriff to bring in Jennings, who was placed on the jury panel along with Jenkins and the motion was overruled. Floyd Piper Jennings served four days as a juror and it appears that there was a clerical mistake in his name as the defendant's list of jurors contained the name of Floyd E. Jenkins. The defendant demanded a struck jury and both of these jurors, Floyd E. Jenkins and Floyd P. Jennings, were struck.
The testimony further showed that Mrs. Fannie H. Palmer prepared the individual jurors' cards which were then placed by the jury commission in the jury box. She stated that she prepared the jury card in question, that it was typed up as "Floyd E. Jennings, Beat 16, 1629 First Avenue, Central Foundry." According to her testimony this particular card came back to her with the name "Jennings" stricken out and the name "Jenkins" written in with ink.
Miss Doris Thrower, an employee of the circuit clerk, testified that acting on the instructions of the court bailiff, she struck out the name "Jennings" and wrote in with ink the name "Jenkins". This act was later approved by the clerk of the court.
Lowell Hardin, Clerk of the Circuit Court, testified that in the regular course of his duties he kept a certificate book, used to pay the individuals who served as jurors during the week. Certificates for this particular week (April 14, 1956), showed that Floyd E. Jenkins served four days as juror and a Mr. Jennings served two days as a juror.
To summarize, a situation is presented where a juror, Floyd E. Jenkins, was summoned but not drawn and the placing of Floyd P. Jennings who was drawn, on the panel by the court on the day of the trial. *211 Accordingly the defendant was required to strike from a panel including both Floyd E. Jenkins and Floyd P. Jennings.
Our cases hold that, "* * * `clerical and ministerial mistakes in the preparation of the venire' and list to be served on defendant do not furnish sufficient ground to quash the venire when it does not appear that prejudice resulted. Zininam v. State, supra [186 Ala. 9, 65 So. 56]; Spooney v. State, supra [217 Ala. 219, 115 So. 308]." Irwin v. State, 220 Ala. 160, 161, 124 So. 410, 411.
In Irwin v. State, supra, the clerk in making the copy of the venire for service on the defendant confused the names of two men. It seems that Elmus Rutledge was drawn as a regular juror for the week of the trial of the case and appeared and served as such. The list of the venire served on the defendant showed the name of Elmus Drinkard, as residing at Albany. There was a qualified juror in the county named Elmus Drinkard who resided at Falkville and who had served as a regular juror of the court for the preceding week. However, Drinkard had not been drawn, summoned and apparently was not in attendance. In denying the petition for certiorari this court held, "The error in the list constituted no defect in the venire, but was merely a defect in the copy of it served on defendant."
In the light of the statute and authorities cited above, we find no error in the action of the court in refusing to quash the venire. See Evans v. State, 209 Ala. 563, 96 So. 923.
II. The appellant predicates error on the action of the court in reading in its oral charge the provisions of § 173, Title 14, Code of 1940, without explanation. It is sufficient to say that no exception was taken to the oral charge and, therefore, there is nothing presented here for review. Gurley v. State, 216 Ala. 342, 113 So. 391.
III. The homicide occurred on Saturday afternoon, December 18, 1954, about two o'clock in the City of Tuscaloosa at a small colored restaurant commonly called "The Stand". The Stand was a frame building. It faced west and consisted of the main eating room with a kitchen directly behind the main eating room. There was a counter which ran from the north wall toward the south part of this eating room. There was a distance of about 5 or 6 feet between the south wall of the building and the south end of the counter. In this space were kept empty drink bottles and cases holding drink bottles. Behind the counter was a space of some few feet and then there was the wall of the kitchen. There was a door in this wall which was approximately in the center of the building, separating the eating room from the kitchen. This door was of the old fashion saloon bat wing type.
Tendencies of the evidence showed that on Friday night, December 17th, George Wynn, the deceased, Rodgers Parker, the defendant, and others were playing a game called "skin". At one point in the game George Wynn lost but refused to accept his loss and kept money which the defendant had won. There was a dispute over this and the deceased taunted the defendant. The defendant refused to play any more and the deceased pulled a knife on the defendant and attempted to cut him. The defendant left and went to his home.
Later that night around midnight, the deceased came to Parker's home and kicked on the door and invited him to come out. The deceased was armed with a pistol at this time. Defendant did not go outside the house and Wynn left. The next afternoon *212 was the next meeting between the defendant and the deceased. Tendencies of the evidence showed that the defendant was in the cafe when George Wynn came in. Wynn walked up to the counter, spoke to the woman who operated the place, turned around and went outside and then came back in. He then walked up to where the defendant was standing, turned and attempted to bump into him. The defendant jumped out of the way and Wynn went to the counter, walked around the counter and stooped around behind the counter. In this position only his head, shoulders and a portion of his upper body was visible to the defendant. While stooping down behind the counter Wynn reached into his bosom and made a pulling motion as he began to come up from behind the counter. The defendant then fired four times, twice after Wynn fell. Wynn slumped down behind the counter, lying with one portion of his head underneath the bat wing door leading to the kitchen. Parker fired a revolver and after the shooting was over, he emptied the used shells from the revolver on the floor of the cafe, reloaded and walked from the cafe to a colored pool room, called a taxi and went to the police station where he voluntarily surrendered himself and informed the officers of what had occurred.
Tendencies of the evidence further showed that after George Wynn had been shot that he was lying on his back with his hands stretched out and that a pistol was lying on the floor beside him approximately at his knee. This pistol was picked up by one Mary Evans Jones, who did not remain at the scene with the pistol until the police came. She took the pistol home with her and gave it to one Hill Jackson. The pistol was later given to certain officials of the police department.
Tendencies of the evidence further showed that George Wynn had a bad reputation and that he had a bad reputation for carrying a pistol. The tendencies of the evidence further showed that George Wynn made threats to kill the defendant Rodgers Parker and that Wynn had tried to cut Parker with a knife the night before.
(a). Error is predicated on the refusal of the court to allow certain testimony tending to show warnings or advice given by the witness to the appellant. For example, Willie Esther, a witness for the defendant was propounded the following question: "I will ask you if in that conversation you had with the defendant, Rodgers Parker, about 8:30 or 9:00 o'clock on the morning of the shooting, if you warned the defendant Rodgers Parker to watch himself and that Daddy Wynn was out after him?" The court allowed proof of threats made by the deceased against the defendant and that these threats were communicated to the defendant, but properly refused to allow testimony tending to show advice or warning given the defendant. Davis v. State, 216 Ala. 475, 113 So. 393.
(b). The court permitted questions showing generally that the appellant and the deceased became involved in an argument while gambling the night before the killing and that the deceased attacked the appellant with a knife. While the defendant could introduce evidence of such prior difficulty and to illustrate its general nature and gravity, could show that a weapon was used, the court refused to admit in evidence the details of the altercation. The ruling of the court was in accordance with the decisions of this court. Bryant v. State, 252 Ala. 153, 39 So. 2d 657; Bowen v. State, 217 Ala. 574, 117 So. 204; Lambert v. State, 208 Ala. 42, 93 So. 708.
(c). In cross-examining one of the State's witnesses, the witness was asked whether the witness knew the reputation of the deceased for turbulence and violence. The witness testified that the deceased was a known gambler but that he did not know his reputation otherwise. *213 Counsel then attempted to ask a number of questions concerning specific acts of the deceased. At the time the questions were asked concerning the reputation of the deceased, the evidence showed that the deceased and the appellant were on opposite sides of the room when the shooting occurred and it showed that the appellant shot the deceased twice after he fell. The testimony at that time further showed that the two men had had a difficulty the night before and that the deceased had his hand in his shirt. In Sanders v. State, 242 Ala. 532, 7 So. 2d 483, 484, this Court said:
When appellant attempted to bring out specific bad acts of the deceased in the aforesaid manner, not only was he attempting to do indirectly what he could not do directly, in other words prove bad character by specific acts, he was also attempting to show the bad character of the deceased prematurely. It had not been shown that the defendant did not have the opportunity to retreat. It was not shown that the appellant did nothing to provoke the deceased and it was not shown that the appellant could not have avoided the difficulty. We, therefore, consider that the court acted correctly in refusing to allow questions concerning specific acts of the deceased. Sanders v. State, supra.
(d) The defendant went to police headquarters in Tuscaloosa, Alabama, soon after the fatal shooting and surrendered himself. While at police headquarters the defendant made a statement concerning the circumstances of the shooting which was tape recorded. This statement was reduced to writing but was never shown to the defendant prior to the trial nor was it ever in any way authenticated by the defendant. The contents of this statement were admitted in evidence by testimony of Officer Scarborough as an oral confession of the defendant. The defendant took the stand and on direct examination testified to the circumstances of the shooting. The testimony given by the defendant in court differed materially from the prior statement given to Officer Scarborough at police headquarters. The solicitor on cross-examination proceeded to question the defendant *214 in regard to the conflict between defendant's prior statement at police headquarters and the testimony of the defendant given on the stand. The solicitor used what appeared to be a written transcription of the defendant's oral statement for the purpose of cross-examining the defendant. Thereupon the defendant's attorney objected and requested the right to examine the paper before the defendant was questioned therefrom. This request to examine the paper was at first denied but the solicitor showed the writing to the defendant and to the defendant's attorney. While the solicitor was cross-examining the defendant from the paper the defendant's attorney said: "We object to counsel reading this statement in evidence before the jury without offering it in evidence." The solicitor then offered the paper in evidence which was refused by the court, on objection of the defendant.
The appellant argues that it was reversible error for the court to permit the solicitor to cross-examine the defendant from a paper that purported to be a written transcription of a tape recorded statement made by the defendant to police soon after the fatal shooting.
An analysis of the cases relied on by the appellant shows that they are not controlling in the factual situation in the case at bar and that the trial court was not in error. The cases cited in brief by appellant control where the statement was written by the witness or was signed by the witness or it was prior sworn testimony of the witness. In these three situations if the statement is to be later introduced in evidence to impeach the witness, the statement must be first shown to the witness in order to allow the witness to refresh his memory and to explain any inconsistency. The writing used by the solicitor in the case at bar was not later admitted into evidence for the purpose of impeaching the witness nor was the paper authenticated in any manner by the defendant as being a prior statement made by him. He did not write the statement. He did not sign the statement nor was the alleged statement shown to be sworn testimony of the defendant previously given. The solicitor merely used the paper to refresh his own memory when propounding questions to the defendant on cross-examination. In other words, the character of the paper was nothing more than private notes of the solicitor.
The appellant relies upon the case of Wills v. State, 74 Ala. 21. The Wills case holds that the trial court ruled properly when it held that the entire affidavit or sworn testimony should be shown or read to the witness before the witness should be required to answer. In the Wills case the prior testimony which was used to question the witness was sworn to and signed by the witness and the contents of the paper were read to the jury later for impeachment purposes. In that case this court said:
The following is a statement of the rule in the Wills case:
There appears to be no disposition in the instant case on the part of the State to deny the rule recognized in the Wills case. However, it is obvious that the factual situation in the case at bar does not warrant an application of the foregoing rule in the Wills case because the paper in the case at bar was not sworn testimony nor was it a signed statement given by the defendant nor was it later introduced in *215 evidence for the purpose of impeaching the witness.
The case of Parke v. State, 48 Ala. 266, relied on by the appellant, is not applicable here. The Parke case holds that in a criminal case if the State relies upon a confession of the defendant to show his guilt, the defendant is entitled on cross-examination to bring out all that was said at the same time on the same subject. In the Parke case the trial court did not allow the defendant on cross-examination to bring out the rest that was said when the original confession was made. This court held that the action of the trial court was error. The Parke case, however, has no bearing on the present case because it does not concern a witness being denied the right to examine a paper from which he is being cross-examined.
Manning v. State, 217 Ala. 357, 116 So. 360, 362, cited by the appellant, was reversed for several errors in the record. A careful reading of the decisions shows that none of these errors were adverse rulings of the trial court in regard to the examination of a witness from a prior statement without first showing the witness the alleged statement. The opinion states that there was no demand by the witness of the right of inspection. The witness in that case had been cross-examined from the transcribed notes of the official court reporter. The most that the Manning case says that is pertinent to the case at bar is as follows:
The appellant cites Kennedy v. State, 240 Ala. 89, 196 So. 884. The Kennedy case holds that in a criminal prosecution where the defendant admitted signing a paper for the investigator that it was reversible error for the trial court to permit the solicitor to cross-examine the defendant from the signed statement without allowing the defendant to first examine the statement when he asked to do so. The paper in the case at bar was not such a signed statement and therefore would not be governed by the Kennedy case.
The case of Floyd v. State, 82 Ala. 16, 2 So. 683, relied upon by the appellant, sets out the general rule that when a witness has made a statement in writing or signed the written statement, that the defendant must be shown the signed statement and allowed to refresh his memory before the witness should be allowed to answer questions relative to the written statement. It should be noted that this rule applies to an oral statement made by the witness and later reduced to writing and signed by the witness. It does not apply to an oral statement reduced to writing and not signed by the witness. In the instant case the statement was an oral statement and was not signed by the witness.
We think any further analysis or statement concerning the Alabama cases relied on by the appellant is not necessary in view of the analyses which we have here made of the foregoing decisions.
A case similar to the case at bar is Bailey v. State, 24 Ala.App. 339, 135 So. 407. In that case it appeared that a witness for the defendant had given certain testimony before the grand jury which the solicitor had in his possession and used for the purpose of cross-examination of the witness. On appeal it was held that the prosecuting attorney had a right to refer to these notes in formulating questions on cross-examination of the adverse witness and that the trial court properly declined to require the solicitor to deliver the notes to the defendant's counsel for inspection. These notes included matter other than the testimony of the witness, but the paper in the Bailey case was of the same character as that in the instant case, because both papers purported to be an unsigned statement of the witness. There is no indication in the Bailey case *216 that the notes were later introduced in evidence to impeach the witness. The trial court did not commit error in the Bailey case by ruling that the solicitor did not have to show the defendant's unauthenticated alleged prior statement to the defendant or to his attorney prior to questioning the defendant from it. It follows that the trial court should not be put in error in the instant case for a similar ruling. Vaughn v. State, 25 Ala.App. 204, 143 So. 211.
For a discussion of the problem under consideration we refer to the annotation in 156 A.L.R. 345 et seq. We have before us cases from other jurisdictions which in our judgment conform to what has been said.
In conclusion let us say that the various matters argued in brief by counsel have been carefully considered and we believe that the judgment of the lower court is free from error and is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
STAKELY, Justice.
Original opinion extended.
Application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 1, 1956 |
471006e6-07d7-49d8-98a9-2309067d1b29 | Hardee v. Hardee | 93 So. 2d 127 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 127 (1956)
J. S. HARDEE et al.
v.
J. W. HARDEE.
3 Div. 673.
Supreme Court of Alabama.
December 13, 1956.
Rehearing Denied March 14, 1957.
*128 N. S. Hare, Monroeville, for appellants.
B. E. Jones, Evergreen, for appellee.
PER CURIAM.
The original bill was filed by J. S. Hardee and forty other persons against J. W. Hardee. Two of the original complainants were stricken and several other persons were added as parties complainant by amendments. The bill as amended alleges that the complainants and the respondent are the joint owners of approximately eighty acres of land situate in Conecuh County, to which we will sometimes refer hereafter as the suit property, which cannot be equitably divided in kind and prayed that it be sold for division of the proceeds among the alleged joint owners according to their respective interests. The bill as amended does not aver how the alleged joint owners acquired their interests but such averments are not necessary. Vest *129 v. Wilson, 223 Ala. 414, 136 So. 730; Brewer v. Brewer, 250 Ala. 222, 34 So. 2d 13; Ellis v. Stickney, 253 Ala. 86, 42 So. 2d 779.
The respondent, J. W. Hardee, filed his answer wherein he denies that any of the complainants own any interest in the suit property and avers that he is the sole owner. The answer was made a cross bill and it is averred therein that the suit property was owned by N. Z. Hardee, an ancestor of all of the parties to the litigation, but that the respondent-cross complainant is now the owner of the property by virtue of a deed from his sister, Isabella Hardee (executed in 1948), who had obtained fee simple title to the suit property under a deed from her father, N. Z. Hardee, executed on April 6, 1923. The prayer of the cross bill was that the trial court enter a decree declaring that the respondent-cross complainant is the sole owner of the land in controversy and that the title to that land be quieted in him and that the complainants-cross respondents be enjoined from claiming any right, title or interest in the land.
The complainants-cross respondents did not challenge the cross bill by demurrer, but filed an answer wherein they deny that Isabella Hardee acquired fee simple title to the land in controversy under the deed of April 6, 1923, from her father, N. Z. Hardee, and further deny in general terms the validity of the 1948 deed from Isabella Hardee to J. W. Hardee.
After submission on testimony taken before commissioners, a final decree was rendered wherein the relief sought by complainants was denied and their bill dismissed and where it was decreed that the respondent-cross complainant was entitled to relief under his cross bill and that as against the complainants he is the sole owner of the lands in dispute. It was further decreed: "* * * that the title to the above described lands is vested in the said J. W. Hardee and that neither of the Complainants has any right, title or interest in, claim to, or incumbrance upon, said lands above described, or any part thereof."
From that decree the complainants-cross respondents, to whom we will refer hereafter as the appellants, have appealed to this court. The respondent-cross complainant will sometimes be referred to by name and sometimes as the appellee.
At the very threshold of this case is the construction to be placed on the deed from N. Z. Hardee to Isabella Hardee executed as shown above on April 6, 1923, and recorded shortly thereafter. The appellee contends that Isabella obtained a fee simple title to the described lands subject to the use and enjoyment by the grantor during his lifetime, whereas the appellants insist that Isabella was conveyed only a life estate with remainder in the parties to this litigation as "the heirs" of the grantor. As far as this appeal is concerned it can be said that if Isabella did obtain only a life estate, then the parties to this litigation are the joint owners of the property, Isabella having died in 1949 prior to the institution of this proceeding. There is no contention to the contrary, and in fact all of the parties seem to agree on this point.
The deed was introduced in evidence and the original is before us. It is clear that in making the deed a printed form was used, such as was then and is now in general use, having blank spaces to be filled. The deed is set out below. The words which we have italicized were written in the deed, those not italicized are a part of the printed form.
"The State of Alabama, Conecuh County.
We have cases holding that while the written and printed parts of instruments, including deeds, are equally binding, if they are inconsistent the written part prevails over the printed form. Porter v. Henderson, 203 Ala. 312, 82 So. 668; John Deere Plow Co. v. City Hardware Co., 175 Ala. 512, 57 So. 821.
But that rule is of no benefit in this case for the claimed conflict in the deed which has precipitated this litigation is not between the printed and written words, but between the two written sentences which appear between the description of the property and the habendum clause and to which we will sometimes refer hereafter as the written paragraph.
It appears from an opinion made a part of the decree that the trial court's holding that the deed of April 6, 1923, from N. Z. Hardee to Isabella Hardee conveyed a fee simple estate was based on the court's understanding that our holdings in the three cases hereafter cited permitted no other conclusion. Henry v. White, 257 Ala. 549, 60 So. 2d 149; Wright v. Smith, 257 Ala. 665, 60 So. 2d 688; Green v. Jones, 257 Ala. 683, 60 So. 2d 857.
In each of those cases we held that the deeds under consideration conveyed a fee simple estate. The holding in each case was based on the application of the arbitrary rule that the granting clause in a deed determines the interest conveyed and when it provides for a certain, specific estate, without repugnancy, obscurity or ambiguity therein, it prevails over introductory statements or recitals and over the habendum and other clauses if they are contradictory of or repugnant to it.
The granting clause in the deed under consideration in Wright v. Smith, supra, provided for a certain specific estate, a fee simple estate, since the words of grant were followed by specific words of inheritance. So, under the facts of that case, there being no repugnancy, obscurity or ambiguity in that clause, we held correctly that the granting clause prevailed. Webb v. Webb's Heirs, 29 Ala. 588; Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A., N.S., 719; Hill v. Gray, 160 Ala. 273, 49 So. 676; Head v. Hunnicutt, 172 *131 Ala. 48, 55 So. 161; Graves v. Wheeler, 180 Ala. 412, 61 So. 341; Porter v. Henderson, 203 Ala. 312, 82 So. 668; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; Gargis v. Kennemer, 216 Ala. 494, 133 So. 620; King v. King, 242 Ala. 53, 4 So. 2d 740; Rowell v. Gulf, M. & O. R. Co., 248 Ala. 463, 28 So. 2d 209; Stratford v. Lattimer, 255 Ala. 201, 50 So. 2d 420. The same is true of our holding in Henry v. White, supra.
The granting clause in the deed involved in Green v. Jones, supra, did not contain words of inheritance or other words sufficient to show the granting of any certain or specific estate. Hence, we were in error in saying, "The granting clause in the deed in question purports to convey the entire title to the grantee Jones, * * *" and in holding that the granting clause prevailed. That holding in Green v. Jones, supra [257 Ala. 683, 60 So. 2d 858], cannot be approved or followed. Graves v. Wheeler, supra; Henry v. White, supra.
We now return to a consideration of the deed from N. Z. Hardee to Isabella Hardee in the instant case.
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. Stratford v. Lattimer, 255 Ala. 201, 50 So. 2d 420; Gamble v. Gamble, 200 Ala. 176, 75 So. 924 and cases therein cited.
Another rule of construction of deeds is that "when subsequent words are of doubtful import, they cannot be construed as to contradict the preceding words which are certain." Petty v. Boothe, 19 Ala. 633; McCombs v. Stephenson, 154 Ala. 109, 44 So. 867; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161.
With these rules of construction in mind, we proceed to try to ascertain the intent of the grantor from the "four corners of the instrument" or by trying to reconcile all its provisions if possible. The first sentence of the deed is regular in form, contains no reservations, and shows a conveyance by words of grant to one grantee, Isabella Hardee, the only person shown from whom a consideration flowed to the grantor. True, there were no "words of inheritance" following Isabella Hardee's name, and, laying aside the provisions of the statute which will be adverted to later, we must continue to look to the deed for a definition of the estate intended to be conveyed. The next part of the deed contains the description. The very first sentence after the description clearly and unmistakably shows an intent on the part of the grantor to reserve for himself a life estate in the property and that, subject to the life estate, title went "to the grantee in fee simple." Words denoting or importing title in fee, such as "words of inheritance," were not employed, but the actual words "fee simple" were used. At this point the intent of the grantor is certain, plain and clear. He intended to convey the lands in fee simple. If there is anything in the deed which reflects an intention to the contrary, it is the next sentence.
That sentence begins with an unintelligible and nonsensical phrase"And at the death of the said grantees death." With such a beginning, this sentence is not clear; it is obscure, it is of doubtful import, and it requires editing by deleting and adding words from and to the sentence. That immediately places us in the realm of speculation and conjecture.
But the deed continues. The next part is the habendum clause which is to "Isabella Hardee, her heirs and assigns, forever." Thus, the habendum imports title in fee simple. The next part of the *132 deed is the warranty and it covenants and warrants to Isabella Hardee, her heirs, executors and assigns. This also imports an intention to convey the title in fee; and it has been held that the habendum and the covenants may be resorted to for purposes of construction, if there is a question of the extent of the ownership in the estate granted. Lowery v. May, 213 Ala. 66, 104 So. 5.
The deed before us imports a fee simple title in all its clauses, parts or provisions except one sentence, which, to say the least, is of doubtful import, and this sentence follows a clear statement of intent that the title passed to the grantee in fee simple. These subsequent words, being of doubtful import, "cannot be construed as to contradict the preceding words which are certain." We do not believe that any appellate court in the land would settle upon such an obscure, doubtful statementone which must be edited before it makes sense and hold that it correctly expressed the intent of the grantor to convey only a life estate, when all the other provisions of the deed are plain, clear and expressly or importedly manifest an intention to convey title in fee simple.
But if there should still be a question as to the intent of the grantor, we think the answer is in the statute previously referred to, and its application to the instant case. Title 47, § 14, Code 1940, reads:
As we have heretofore pointed out, words of inheritance were not used in the part of the deed containing words of grant, but under the statute, Isabella Hardee took title to the lands in fee simple "unless it clearly appears that a less estate was intended." We have already noted that every sentence, clause or provision of the deed denoted a fee simple title except the one unclear and doubtful statement which is urged as showing an intent that less than a fee was intended to be conveyed. We cannot say that from a consideration of this deed, viewing it from its four corners, that it clearly appears that a less estate than a fee simple was intended. All of the clear provisions in the deed import a fee simple title.
Therefore, on the question of the intent of the parties as ascertained from the entire instrument, or under the statute, we are constrained to hold that the deed conveyed the fee to Isabella Hardee. The deed in the case of Gamble v. Gamble, 200 Ala. 176, 75 So. 924, was similar in many respects to the deed in the instant case, except that there were no meaningless phrases which required editing.
As previously noted, the trial court evidently reached the same conclusion by applying the rule of construction enunciated in Henry v. White, 257 Ala. 549, 60 So. 2d 149, and Wright v. Smith, 257 Ala. 665, 60 So. 2d 688, 689, that "* * * `if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being "the first clause in a deed, and the last in a will shall prevail."'" (We think the words "clause" is synonymous with the word "provision.") Certainly, if the second sentence following the description in the deed were edited for comprehensibility to make it read "And at the grantee's death, title to the above described lands is to revert back to the heirs of the above grantor in fee simple," then it would be about as irreconcilable with and repugnant to the sentence preceding it which conveyed to the grantee in fee simple as two clauses or provisions in a deed could be, and it would be necessary to apply the arbitrary rule of construction which presumably was applied by the trial court. Such application would result in the first provision prevailing over a following inconsistent provision and support the conclusion that a title in fee was conveyed, which was the finding of the lower court.
*133 We have already indicated that we did not think it necessary in the instant case to resort to the arbitrary rule of construction applied by the trial court, but if the result reached by that court is correct, the reasons upon which it proceeded are unimportant, and the decree will not be reversed. Cherokee County v. Cunningham, 260 Ala. 1, 68 So. 2d 507; Andrews v. Sullivan, 260 Ala. 291, 69 So. 2d 870; Smith v. Smith, 153 Ala. 504, 45 So. 168.
Having concluded that the trial court was correct in holding that the deed under consideration conveyed to Isabella Hardee a fee simple estate, we come now to a consideration of the contentions made by the appellants to the effect that the deed from Isabella to J. W. Hardee is invalid and, hence, the trial court erred in quieting the title in J. W. Hardee.
Although most of the testimony elicited from witnesses called by the parties relates to the mental capacity of Isabella Hardee at the time she executed the deed to J. W. Hardee on January 10, 1948, appellee strenuously insists that the answer of appellants to his cross bill was not sufficient to make an issue in that respect and, hence, we should not consider that question on this appeal. The only words in the answer to the cross bill which purport to challenge the validity of the deed of January 10, 1948, are as follows: "Complainants and cross-respondents further deny that the deed referred to in the cross-bill as `Exhibit B' is valid and of force and effect." The claim of appellee is that the answer was not sufficient to apprise him of the fact that the appellants would raise the issue of the mental incapacity of Isabella Hardee at the time she executed the deed of January 10, 1948. We are inclined to agree with the appellee's insistence that there is no specific indication in the answer to the cross bill that the issue of mental incapacity would be raised or was in the case. Deegan v. Pake, 233 Ala. 435, 172 So. 270. But this issue was tried. The appellee as well as the appellants called numerous witnesses who gave testimony bearing on that question and the notes of submission included such testimony. As we understand the decree of the trial court, the issue was determined on its merits, and we do not think we should treat it in any different respect. Compton v. Compton, 235 Ala. 174, 177 So. 900.
In sitting in judgment on the evidence in this case, we are confronted with the problem of ascertaining that part of the evidence offered which, under existing laws, we may consider in determining the rights of the parties. That problem has not proven to be without difficulty, for throughout the taking of the testimony in this case, and it is extensive, counsel for both parties were apparently conscious of the fact that much, if not most, of the testimony elicited from the witnesses was incompetent, irrelevant, illegal or immaterial, yet they continued to fill the record with that kind of testimony and in briefs filed here, three on behalf of the appellants and two on behalf of the appellee, the court has been offered no assistance in the matter of determining what evidence it is proper for us to consider.
Much of the testimony has been disregarded because of the provisions of § 433, Title 7, Code 1940, which provides in part as follows: "In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, * * *." (Emphasis supplied.) See Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115; Davis v. Tarver, 65 Ala. 98. Much of the testimony violates the hearsay rule and it too has been disregarded.
*134 In our opinion the only testimony tending to show the mental incapacity of Isabella Hardee which need be considered is that of Dr. E. Vernon Stabler, a distinguished physician and operator of Stabler's Infirmary at Greenville, Alabama, to which institution Isabella Hardee was admitted on December 31, 1947, and from which she was discharged on January 4, 1948. Dr. Stabler's testimony is substantially as follows: At the time of admission Isabella Hardee complained of soreness in her abdomen, which did not prove to be of any importance. The doctor saw the patient every day she was in his infirmary and his diagnosis was that she was suffering from mental derangement and senility due to senile changes and that such condition was not temporary. While in the hospital the patient was unruly and irrational at times and was not sure where she was or what she was doing. On one occasion she left the hospital and had to be returned by attendants more or less against her will. On January 4, 1948, the last day on which Dr. Stabler saw Isabella Hardee, she was discharged from the infirmary in a "very limited condition," not having improved appreciably during her stay. Based on his observation of her during the time she was in his infirmary, Dr. Stabler expressed the opinion that by January 10, 1948, the day on which the deed from Isabella to appellee was executed, Isabella Hardee had not improved to any material or appreciable extent; that at that time she was not mentally competent and did not have the mental capacity to transact ordinary business, to comprehend the nature and effect of her actions, or to understand the consequences and effect of a deed; that it was not likely that Isabella Hardee could have improved within several weeks to such an extent that she could capably manage her affairs.
The presumption is that every person is sane and the burden of proof is upon the party attacking the conveyance to show the incapacity of the grantor at the very time of the transaction. Halman v. Bullard, 261 Ala. 115, 73 So. 2d 351. But where the person attacking the conveyance shows that the grantor was habitually insane before the conveyance was attempted to be executed, the burden then shifts to those claiming under the conveyance to show that it was made during a lucid interval. Johnston v. Johnston, 174 Ala. 220, 57 So. 450, and cases cited; Pike v. Pike, 104 Ala. 642, 16 So. 689; Hall v. Britton, 216 Ala. 265, 113 So. 238; Halman v. Bullard, supra. In Pike v. Pike, supra, we said [104 Ala. 642, 16 So. 690]: "And it may be deduced as a general rule from all the authorities that while acts done in a lucid interval are to be esteemed valid, and will not be defeated by any overstrained demand of proof, there must be clear, convincing evidence of the intermission of the insanity, and that the act proceeded from the unaided volition of the party."
While we have some doubt as to whether or not Dr. Stabler's testimony should be construed as showing that Isabella Hardee suffered from permanent insanity, we are so treating his testimony.
However, we are of the opinion that the testimony given on behalf of appellee by persons competent in all respects to so testify is to the effect that the deed in questionthat is, the deed of January 10, 1948 was executed at a time when Isabella Hardee was mentally competent in all respects. In fact, the evidence of neighbors who lived in the community and who visited Isabella and who are without interest in the outcome of the litigation testified that after her return from the hospital she appeared to be normal in all respects and conducted herself as she had prior to her illness as a sane and competent woman.
The deed in question was executed in the office of Hon. B. E. Jones of the Evergreen bar only six days after Isabella Hardee returned to her home from the Stabler Infirmary. She was accompanied to the office of Mr. Jones by appellee, the grantee in the deed, and by one of his daughters. The daughter remained in the office of Mr. Jones and was present at the time the deed *135 was executed, but appellee was not present. The deed was signed in the presence of and acknowledged before Miss Daisy M. Burnett, who at that time was the secretary of Mr. Jones. Miss Burnett had served Mr. Jones and his partners in that capacity since 1915 and the record shows her to be an unusually competent person, one thoroughly familiar with the affairs of a law office.
Miss Burnett testified as a witness for appellee and her testimony is to the effect that at the time she signed the deed Isabella Hardee appeared to be perfectly normal. She discussed her business, what she wanted done with the land in question, stating that many years previously when the appellee moved in her home that she agreed to leave the land to him.
After a careful and studied consideration of the evidence in this record which can be properly considered, we are of the opinion that Isabella Hardee was not mentally incompetent at the time the deed was executed, but was able to fairly understand the nature and consequences of the act in question. Halman v. Bullard, supra; Shorter v. Shorter, 250 Ala. 628, 35 So. 2d 514.
Moreover, we feel that the execution of the deed "proceeded from the unaided volition" of Isabella Hardee. The evidence in our opinion does show a confidential relationship between the grantor and the grantee, J. W. Hardee. And if it can be said that the brother was the dominant party in this relationship, we feel that the evidence shows that the execution of the deed did not result from undue influence arising from that relationship.
The execution of the deed was the natural thing to do, for it had been appellee and his children who had for many years lived in the home of Isabella, caring for her and looking after her interests, although the evidence shows that appellee paid rent for the use of the land. The other members of Isabella's family saw her infrequently and did not maintain the close relationship which apparently existed between her and the J. W. Hardee family. True, the deed recites a consideration of $5,000 in hand paid and it is admitted that no money was paid by the appellee to the grantor, but the evidence shows that the $5,000 figure was inserted at the direction of Isabella Hardee, who felt that the services rendered to her by J. W. Hardee and his family were easily worth that figure.
This record presents the not unusual situation of a family being torn asunder over the disposition of property which had belonged to a deceased member of the family. Those of the appellants who testified admitted their bitterness and animosity toward the appellee, whom they feel has acquired property which rightfully belonged to all of the members of their family. But a person has the right of a voluntary and untrammeled disposition of his or her own property. Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754. We think the evidence shows that is exactly the situation here involved.
We have referred above to the existence of a confidential relationship between Isabella Hardee and the appellee. That relationship is established by the evidence and we do not want to be understood as holding that the mere relationship of brother and sister in itself creates a confidential relationship. Hinson v. Byrd, 259 Ala. 459, 66 So. 2d 736; Cherry v. Cherry, 257 Ala. 277, 58 So. 2d 597; Noel v. Noel, 225 Ala. 302, 143 So. 469. For a contrary holding which will not be followed see Boney v. Hollingsworth, 23 Ala. 690.
The questions presented on this appeal have not proven easy of solution, but after a most thorough and careful consideration of the record and the able briefs filed by counsel representing the respective parties, we are of the opinion that the decree of the trial court should be affirmed.
Affirmed.
*136 LIVINGSTON, C. J., and SIMPSON, GOODWYN, MERRILL and SPANN, JJ., concur.
LAWSON and STAKELY, JJ., dissent.
LAWSON, Justice (dissenting).
I cannot agree that the deed of April 6, 1923, from J. Z. Hardee to Isabella Hardee conveyed a fee simple title.
If I understand the court's opinion correctly, that conclusion is based in the main on the holding that the second sentence of the so-called written paragraph must be ignored in that it is obscure, unclear, and of doubtful import. That sentence reads: "And at the death of the said grantees death the above described land is to revert back to the heirs of the above grantor in fee simple." (Emphasis supplied.) Those parts of the quoted language which we have italicized are superfluous, but I feel that it is most hypercritical to say that simply because they are included the entire sentence is without meaning. The opinion of the court condemns the sentence simply because of redundancy without pointing out any uncertainty or possible double meaning. I cannot attribute any meaning to the language quoted except that at the death of Isabella Hardee the land described in the deed is to go to the "heirs" of J. Z. Hardee "in fee simple." I submit that no reasonable construction of that sentence leads to any other interpretation. The face of the instrument in more ways than one evinces the want of skillfulness in the person who drafted it and the inartificial, imperfect use, not only of technical terms, but of words in popular use. I cannot agree with the holding of the court to the effect that the first sentence of the so-called written paragraph is clear and certain in all respects. I agree that under our cases that when viewed in the light of the surrounding circumstances, that sentence should be interpreted as conveying a present interest to the grantee subject to the use and enjoyment of the grantor during his lifetime, hence, the instrument is a deed rather than a testamentary document. But certainly a skilled scrivener would have chosen more apt language to convey that meaning. Again, one skilled in the use of technical terms would not have included the words "fee simple" in both sentences of the so-called written paragraph.
We have often said of a deed which shows on its face that it was written by an unskilled person that a much greater latitude of construction must be indulged rather than the use of technical rules and a blind adherence to the strictest meaning of those words. Hamner v. Smith, 22 Ala. 433; Campbell v. Gilbert, 57 Ala. 569; Gamble v. Gamble, 200 Ala. 176, 75 So. 924.
It seems to me to be entirely unreasonable to say that simply because the sentence under consideration contains a redundancy that it must be ignored even though it is apparent that the instrument was drafted by an unskilled person. I feel that the majority opinion loses sight of reality in an effort to avoid a holding that there is an irreconcilable conflict between the two sentences of the so-called written paragraph.
Apparently the court holds that if there be an irreconcilable conflict between the first and second sentences of the so-called written paragraph then, under the provisions of § 14, Title 47, Code 1940, the deed must be construed as conveying a fee simple estate. If such is the holding of the court it appears to be based on a consideration of the deed only "from its four corners" to the exclusion of the evidence which relates to the situation of the parties and the circumstances surrounding them at the time the deed was executed. The opinion of the court never does say that such evidence cannot be considered in this case, but it is not dealt with in the opinion of the court and the Justices who have concurred in that opinion all expressed disagreement with the writer in conference when he insisted that such evidence should be considered in trying to arrive at the intention of the parties and that when so considered the *137 deed should be construed as conveying to Isabella Hardee only a life estate. So I assume that the court intends to hold that such evidence cannot be properly considered.
As far as I can determine no decision of this court is cited in support of the court's holding that by virtue of the provisions of § 14, Title 47, supra, the deed presently under consideration must be construed as passing to the grantee, Isabella Hardee, a fee simple estate.
In Powell v. Pearson, 220 Ala. 247, 255, 125 So. 39, 45, we said of the provisions then codified as § 6900, Code 1923, now § 14, Title 47, Code 1940, as follows: "* * It is the rule that, when the granting clause does not designate the estate, without more, it is held to vest the fee; to the contrary when the instrument shows the estate is limited by the habendum clause, and that a less estate than the fee was intended to be conveyed or devised * * *." And in the case of Slaughter v. Hall, 201 Ala. 212, 77 So. 738, 739, we said of those provisions then codified as § 3396, Code 1907: "* * The statute providing when the deed or conveyance shall be construed as of a fee refers to the deed or conveyance as a whole, and not merely to the granting, habendum, or other clauses in the instrument. If the deed or conveyance, considered as a whole, construed by viewing it from its four corners, clearly shows what estate was intended to be conveyed, then the statute has no field for operation. It is resorted to only when, from the whole instrument, it is doubtful what estate was intended to be conveyed * * *."
I see no escape from the conclusion that based on a consideration of all the provisions of the deed under consideration, there is doubt as to what estate was intended to be conveyed. I am not too certain that the majority of the members of the court agree with this statement in view of their holding that the so-called second sentence must be ignored. So, assuming that the provisions of § 14, Title 47, supra, are applicable, I am of the opinion that the court is not confined to a consideration of the deed "from its four corners" to the exclusion of a consideration of attendant circumstances in its effort to determine whether an estate less than a fee was intended by the parties.
I am committed to the view that the rule prescribed by § 14, Title 47, supra, like the rule to the effect that the first clause in a deed prevails over a subsequent conflicting clause, is an arbitrary rule of construction and should never be resorted to until all efforts to reconcile the conflicting parts and to ascertain the true intention of the parties have failed, including a consideration of the circumstances attending the execution of the instrument.
We have said in many cases that in the construction of written instruments the controlling inquiry is the intention of the parties and we have cases which hold that the intention must be ascertained from a consideration of the whole instrument, from the nature of the subject matter, and from the surrounding circumstances; that is to say, by having regard for the situation of the parties and the objects they had in view in making the contract or conveyance. First National Bank of New Brockton v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A. 1918F, 353; Porter v. Henderson, 203 Ala. 312, 82 So. 668; King v. Coffee, 222 Ala. 245, 131 So. 792; Smith v. Bachus, 195 Ala. 8, 70 So. 261. See Walker v. W. T. Smith Lumber Co., 226 Ala. 65, 145 So. 572; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450, 91 A.L.R. 1455; Williams v. Johns-Carroll Lumber Co., 238 Ala. 536, 192 So. 278; Hart v. Baptist Foundation of Alabama, 264 Ala. 632, 88 So. 2d 681; Brown v. Huckabaa, 264 Ala. 660, 89 So. 2d 180. Of course, the rule which permits the consideration of the attendant circumstances does not authorize a consideration of what the parties may have stated as to their intention, nor their negotiations, nor evidence as to what other persons understood the parties to intend. King v. Coffee, supra; Brown v. Huckabaa, supra.
*138 In view of the holding of the court, I see no occasion to set out here the evidence as it relates to the situation of the parties and the circumstances attending the execution of the deed, which I feel lead to the conclusion that it was the intention of the parties that Isabella Hardee was to get only a life estate under the deed of April 6, 1923, to her from her father.
The statement in the court's opinion to the effect that the trial court's conclusion that the deed under consideration conveyed a fee simple title was based on the application of the rule that the first clause prevails over the second clause in a conveyance, is, in my opinion, an incorrect interpretation of the decree of the trial court. I think it beyond question that the trial court based its conclusion in the main on our holding in the case of Green v. Jones, supra, which the court has felt constrained to overrule in so far as it holds that the granting clause in the deed there under consideration took precedence over subsequent clauses, inasmuch as the granting clause conveyed no certain, specific estate. That case, among others, is cited in the decree of the court and it contains no reference to the so-called arbitrary rule that the first clause in a deed prevails over a subsequent clause in conflict therewith, which rule is, generally speaking, different from the rule to the effect that the granting clause prevails where a specific, certain estate is defined therein and the granting clause is without ambiguity, obscurity or repugnancy, for where such is the case the granting clause prevails over introductory recitals as well as over subsequent clauses.
I make this observation concerning the court's holding to the effect that the trial court based its decision on the rule that the first clause prevails over subsequent conflicting clauses, although apparently the court has not based its holding on the application of that rule.
Inasmuch as I am of the opinion that the deed of April 6, 1923, conveyed only a life estate to Isabella Hardee, I am constrained to dissent, but express no opinion as to the court's holding concerning the deed of January 10, 1948, from Isabella Hardee to the appellee.
STAKELY, J., concurs in the foregoing views. | December 13, 1956 |
dd645e39-89bf-4bcc-8b88-c2a581fbcc88 | Clark v. State | 306 So. 2d 54 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 54 (1975)
In re James Harrison CLARK
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1053.
Supreme Court of Alabama.
January 2, 1975.
William J. Baxley, Atty. Gen., Montgomery, and Edwin L. Hardin, Jr., Sp. Asst. Atty. Gen., Birmingham, for petitioner, the State.
No brief for respondent.
FAULKNER, Justice.
Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Clark v. State, 54 Ala.App. 183, 306 So. 2d 51.
Writ denied.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | January 2, 1975 |
584b1188-f9c5-42b6-8eb1-181cee37deb2 | American Life Insurance Co. v. Shell | 90 So. 2d 719 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 719 (1956)
AMERICAN LIFE INSURANCE CO. et al.
v.
Claude SHELL.
6 Div. 958.
Supreme Court of Alabama.
September 13, 1956.
Rehearing Denied November 29, 1956.
*720 Noble J. Russell, Decatur, and Deramus, Fitts, Johnston & Mullins, Birmingham, for appellants.
Hare, Wynn & Newell, Birmingham, and Ling & Bains, Bessemer, for appellee.
STAKELY, Justice.
This is a suit for libel by Claude Shell (appellee) against the American Life Insurance Company and its President, Thomas W. Wert (appellants), for publishing the following alleged defamatory matter by writing it in a letter to the plaintiff and sending a copy thereof to a Mr. Forsyth, a business associate of the plaintiff. The letter is as follows.
"Thomas W. Wert "President
"Mr. Claud Shell "Bueno Vista Hotel "Biloxi, Mississippi
"Dear Sir:
"On September the 4th, I wrote you that I had been informed that you stated to one Forsyth, that after you brought the $15,000.00 suit against the American Life we paid you $10.00 in settlement of the suit, but that this check was blind and we passed to you under the table $15,000. You have not replied to my letter.
"Now if you or anyone else makes the statement that we paid you any sum whatsoever than the $10.00 check, directly or indirectly you are an infamous liar and a cowardly cur and knew you were lying when such statement was made.
The case went to the jury on Counts AA as amended, BB as amended and CC as amended. Count AA as amended alleges that the letter made the basis of the law suit was published at Mt. Pleasant, Texas, where it was read by one Forsyth. In addition to alleging that Forsyth read the alleged libelous letter, a copy of which is attached to and made a part of Count AA as amended, the plaintiff further alleges in Count AA as amended that he suffered special damage to his earning capacity and his reputation was impaired.
In Count BB as amended plaintiff adopts all of Count AA as amended and adds thereto certain allegations with respect to an alleged cancellation by one Forsyth of an agency contract which Forsyth allegedly had entered into with an insurance company of which plaintiff was general agent.
Count CC as amended is substantially the same as Count AA as amended except that Count CC as amended seeks to set up publication in Birmingham, Alabama.
All three of the counts on which the case went to the jury contained allegations showing that the word "we" in the letter referred to Thomas W. Wert and American Life Insurance Company, a corporation. In each count it was further alleged that "It was known to said Forsyth when he received said copy of said letter that the plaintiff had made the statement that `we' (meaning Thomas W. Wert or the American Life Insurance Company or both) had paid him a sum other than said $10.00 check directly or indirectly. * * *"
*721 Trial of the case resulted in a verdict for the plaintiff in the sum of $35,260. There was a motion for a new trial which the court overruled. The appeal here is from the judgment and the ruling of the court on the motion for a new trial.
I. It is argued by the appellants that the epithets applied to the plaintiff in the complaint were conditional, being prefaced with the statement, "Now if you or anyone else makes the statement that we paid you any sum whatsoever than the $10.00 check * * *." It is the position of the appellants that the charge being conditional in its form, there is no actionable quality in the charge.
Our investigation fails to show any Alabama case which throws any light on the question here presented and there are only a few cases so far as we can ascertain where the courts have dealt with the subject. The appellants rely on a case decided in 1842, McKee v. Ingalls, 4 Scam. 30, 5 Ill. 30. We feel, however, that the rule stated in 53 C.J.S., Libel and Slander, § 9, p. 47 is the rule which we should apply. We quote the rule as follows.
In all of the counts on which the case was tried it is alleged as follows: "And plaintiff avers that it was known to the said Forsyth when he received said copy of said letter that the plaintiff had made the statement that `we' (meaning Thomas W. Wert or the American Life Insurance Company or both) * * *.", had paid him a sum other than said $10 check directly or indirectly. Accordingly, we consider that in view of the context alleged, which is that Forsyth knew the charge to be true, it is a plain assertion that the plaintiff was "an infamous liar and a cowardly cur and knew you (the plaintiff) were lying when such statement was made." Clark v. Zettick, 153 Mass. 1, 26 N.E. 234; Ruble v. Bunting, 31 Ind.App. 654, 68 N.E. 1041. Although we are dealing here with a question of pleading, it may be well to note in order that the case may be better understood that the court not only required the plaintiff to plead that the condition was met but also required proof tending to show that the condition was met and so charged the jury in the oral charge.
Upon a careful consideration of the matter we, therefore, are of the opinion that the court was not in error in overruling the demurrer to the foregoing counts of the complaint which raise the point that the charge was conditional and therefore not actionable.
II. Plaintiff's evidence tended to show that when Forsyth, who is referred to in the letter which is made the basis of the suit, got a copy of this letter, he terminated his business association with the plaintiff, whereby the plaintiff claims to have suffered a great business loss. This claim for special damages is set up in Count BB as amended.
The proof of the plaintiff tended to show that on May 1, 1952, a written contract was executed between Southern States Life Insurance Company on the one hand and Claude E. Shell (plaintiff here) on the other, designating Shell as General Agent for Southern States Life Insurance Company and agreeing to pay him 75% of commissions on the type of insurance therein described. On September 4, 1952, there was executed a written contract wherein the Southern States Life Insurance Company was the company and Claude E. Shell was the General Agent and C. M. Forsyth, the agent, and specifying therein that C. M. Forsyth, the agent, would be paid a commission equaling 60% of the same commissions on the same type of insurance when and as produced by Forsyth, thereby *722 leaving to Shell his over-riding commission of 15% of premiums of insurance as produced by Forsyth under the aforesaid contract of September 1952. It is claimed that as a proximate consequence of the publication of the aforesaid libel, Forsyth cancelled the aforesaid written contract of September 4, 1952, thereby depriving the plaintiff of the over-riding commission of 15% of all insurance premiums upon insurance when and as produced by Forsyth under said contract. This is the loss which the defendants claim to be conjectural and speculative in nature and for that reason not recoverable and of which the court allowed proof.
Forsyth testified in the case. His testimony tends to show the circumstances upon which it could be calculated with reasonable accuracy what the plaintiff would have earned under his agency contract. The testimony of Forsyth tended to show that he had taken the same crew of men who were serving him at the time he terminated his relationship with the plaintiff and put them to work selling insurance for another insurance company, the Anchor Life Insurance Company, under circumstances which were substantially the same, thereby proving by actual results what was capable of being produced by the agency force which was lost to the plaintiff as the result of the wrongful act of the defendants. His testimony tended to show that the $250,000 of premiums income which he did produce in the next six months was almost exactly the same which he and his crew of men could have produced under the agency contract with the plaintiff had it not been cancelled.
The various elements which made up the substance of Forsyth's testimony were brought out, including the names of the salesmen, the clauses in the policies, the type of prospects who would be approached and the sales commissions. It was shown that Forsyth and his crew specialized in selling what is termed "military insurance". In this type of insurance on proper authorization the government deducted the amount of the premiums from the pay of the man in the service and sent in the premiums. It was shown that 2,750 applications were procured of a potential premium income of about $300,000, which would be $120 a year per policy or $10 per month. This type of insurance had a ready sale and when all of the men in some particular camp had been solicited the crew started working again on that camp when a new group of men came into the camp. It was shown that this type of insurance was sold for the Anchor Life Insurance Company and was comparable to the type of insurance sold by Southern States Life Insurance Company, because the policies were substantially the same, the territory was comparable and the conditions for the sale of such insurance were in other respects comparable.
Upon a careful consideration of the matter we feel satisfied that the proof was admissible to give the jury a basis upon which the amount of plaintiff's loss could be estimated. If the testimony of the plaintiff was believed by the jury, the jury had the right to find that the defendants by their wrongful act destroyed the plaintiff's life insurance agency and having done this cannot then claim that the plaintiff cannot recover what he lost under the contract just because the very act of destruction by the defendants made it difficult for the plaintiff to prove what he would have made of the agency. It is true that damages may not be determined by mere speculation or conjecture, but evidence tending to show the extent of the damages as a matter of just and reasonable inference, should be admissible where the fact of damage has been proved. Wilson v. Stocks, 231 Ala. 58, 163 So. 606.
In support of the views which we have expressed, we call attention to the case of Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 51 S. Ct. 248, 250, 75 L. Ed. 544. In this case the Supreme Court of the United States, speaking through Justice Sutherland, laid down the rule of damages where the defendants' *723 wrongful act has made it difficult for the plaintiff to show with reasonable certainty the amount of his loss. The court spoke as follows.
The decision thereafter states that such damages include those which:
The next quotation from the opinion states another highlight of the modern rule which has been quoted in practically every modern review and text:
See also McCormick on Damages (1935), p. 97 et seq.; 33 Amer.Jur. 188; Washington Times v. Bonner, 66 App.D.C. 280, 86 F.2d 836, 110 A.L.R. page 393; Harris v. National Union of Marine Cooks, 116 Cal. App. 2d 759, 254 P.2d 673; Ditus v. Beahm, 123 Colo. 550, 232 P.2d 184; 25 C.J.S., Damages, § 28, p. 495; 15 Am.Jur. p. 410; Restatement of the Law of Torts, Vol. III, p. 316; Restatement of the Law of Torts, Vol. IV, § 912, p. 574.
The appellants cite the cases of Union Refining Co. v. Barton, 77 Ala. 148 and Deslands v. Scales, 187 Ala. 25, 65 So. 393, but we do not regard these cases as authority here because the evidence in those cases did not furnish sufficient basis for estimating the damage sustained with reasonable certainty. These cases were quoted in the case of Lambert v. Jefferson, 34 Ala. App. 67, 36 So. 2d 583, 589, where the court, quoting from 15 Amer.Juris, § 157, p. 573, said: "`According to the weight of authority, however, a recovery may be had for such losses where they are reasonably certain in character * * *.'"
We do not consider that the court was in error in admitting the testimony of Forsyth because it gives a basis for a reasonable certainty on which the jury could estimate the loss which Shell sustained when his agency contract with Forsyth was destroyed.
III. It is earnestly contended by the appellants that Forsyth could not give his opinion on the loss which plaintiff sustained when the contract which he had with Forsyth was destroyed. We find no merit in this contention. From our examination of the record we think that Forsyth sufficiently stated the facts on which he based his opinion.
In Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 637, 53 A.L.R. 840, it is said:
See also Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33; Malone-McConnell Real Estate Co. v. J. B. Simpson Audit Co., 197 Ala. 677, 73 So. 369.
IV. Did the evidence make out a case against the corporate defendant? The court held that the jury had the right to infer that the libelous letter was written within the scope of the authority of the President of the corporation, Thomas W. Wert. And further had the right to infer that the action of Thomas W. Wert was ratified by the corporation. In so ruling we consider that the court acted correctly.
The defendant Thomas W. Wert testified as a witness in the case. His testimony showed that he had written the alleged libelous letter and mailed it in Birmingham and sent one copy to Forsyth in Texas and another copy to the defendant in care of *725 the Southern States Life Insurance Company. At the time Thomas W. Wert was President of the company and his testimony showed that the writing of the letter was in effect a corporate action written to protect and advance the company's interest. Its nature and the subject which it treated and the purpose it was written to accomplish were all business and corporate in character. He further testified that the letter was not personal. It is our judgment that this letter and the two letters which preceded it and the advertisement in newspapers which followed it, show that it was the act of the President in support of the corporation's position and advancement of its business. He testified that he wrote the letter in the office of the President of the American Life Insurance Company during office hours and on company stationery, using the company's postage. In answer to questions propounded him by his attorney he answered as follows:
His testimony showed that Shell had been State Manager of the American Life Insurance Company in Mississippi. He had built up a debit of $15,000 a month. The company cancelled his contract and would not pay Shell what he considered they owed him. He employed attorneys and sued for his money. He sued the American Life Insurance Company and nobody else but the American Life Insurance Company. He was notified by his lawyers that the case had been compromised for $2,500 and he executed a release for $2,500, his lawyers deducting their fee and paying him the balance. This was on February 1, 1950. Shell received a letter written by the President of the American Life Insurance Company, Thomas W. Wert, on September 4, 1952. We set out the letter as follows:
"Mr. Claude E. Shell "Buena Vista Hotel "Biloxi, Mississippi
"Dear Mr. Shell:
"This morning I was informed that a Mr. C. M. Forsyth, a former agent of ours, made a statement to our Mr. Coffman and our Mr. Craven, on August the 30th, about 9:30 P.M. in the Alps Cafe in Mt. Pleasant, Texas, in substance that you had told him that you had once brought a suit against this Company for $15,000.00 and that to settle the matter we gave you a check for $10.00 but that it was merely a blind and we passed to you under the table $15,000.00 cash.
"Copy to Shell "C/o Southern States "Forsyth at 108 E. 3rd St., Mt. Pleasant, Texas."
Shell did not reply to this letter and on September 20, 1952, Mr. Wert wrote the letter made the basis of this suit. There was an advertisement in the Decatur paper showing why Thomas W. Wert wrote the letter.
At this point we refer to the case of Choctaw Coal & Mining Co. v. Lillich, 204 Ala. 533, 86 So. 383, 385, 11 A.L.R. 1014, a case of libel against a corporation. In the case here referred to the libelous words were not written by the defendant or on its stationery or in its behalf. The defendant had a typewritten list of coal miners absent from work on the previous day which the defendant had entitled "Employees Not Working July 18." One Verg West, the defendant's assistant mine superintendent, took a piece of chalk or some paint and wrote on the board above the sheet the words, "List of Slackers." As shown by the facts stated above, the foregoing case differs in many respects from the case at bar. However, in the Choctaw case, supra, the opinion states:
In the case at bar the defendant corporation ran newspaper advertisements rehashing the controversy with Shell and reaffirming that it was false for anyone to claim that he had been paid more than $10 to settle a case which was based on the position that the American Life Insurance Company had frozen him out of the insurance debit which he had developed in Mississippi.
Thomas W. Wert testified expressly that after a directors' meeting he had authority to publish the advertisement which contained a photostatic copy of the check to the plaintiff and directly described what the advertisement calls a false attack on the company by Claude E. Shell and his attorneys. The publication of these advertisements actually amounts to a ratification. It seems to us that they served the dual purpose not only of ratification of what Wert did but demonstrate that his action in the first place was corporate in character. 13 A.L.R. 1143; Wells v. Payne, 141 Ky. 578, 133 S.W. 575; Interstate Transit Lines v. Crane, 10 Cir., 100 F.2d 857.
V. We do not consider that the verdict is against the weight of the evidence in the matter of damages. The jury had the right to find under the evidence that the defendants put the plaintiff out of business, a business which he was able to establish by contract as the result of a lifetime of experience at the head of this type of agency force. In 35 A.L.R.2d 259 et seq., there is a collection of libel verdicts held excessive and not excessive. It seems to us that the libel in the case at bar could be regarded as more vicious and attended with a greater money loss than some of the verdicts upheld in the foregoing compilation of authorities. We do not consider that the court erred in overruling the motion to set aside the verdict and grant the defendants a new trial.
There are many, many assignments of error in this case but what we have said in our judgment covers the rulings of the court which are the bases of these various assignments. And so we have not felt that it was necessary to make express reference to the various assignments.
It results that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | September 13, 1956 |
794cc639-7b71-4d19-8c51-92fbabde8720 | State v. Alabama Public Service Commission | 307 So. 2d 521 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 521 (1975)
STATE of Alabama and George C. Wallace as Governor of the State of Alabama et al.
v.
ALABAMA PUBLIC SERVICE COMMISSION.
SC 728.
Supreme Court of Alabama.
January 16, 1975.
*524 Maurice F. Bishop, Birmingham, for George C. Wallace, Governor, and for the State of Ala.
Oliver W. Brantley, Troy, for appellant Cities and Towns.
Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Ward W. Wueste, Jr., Durham, N.C., for Gen. Tel. Co. of the Southeast.
HARWOOD, Justice.
On 23 September 1971, General Telephone Company of Alabama (hereinafter referred to as GT of Alabama), filed an application with the Alabama Public Service Commission seeking an increase in intrastate telephone rates from its Alabama customers in the amount of $2,504,450 annually.
*525 GT of Alabama was an Alabama corporation and prior to 31 August 1971 was a wholly owned subsidiary of General Telephone and Electronics Corporation, hereinafter referred to as GTE.
General Telephone Company of the Southeast, hereinafter referred to as GTSE, is an operating company and a wholly owned subsidiary of GTE. GTSE is qualified to do business in Alabama.
GTSE acquired the stock in GT of Alabama and effective 1 September 1971, GT of Alabama became a wholly owned subsidiary of GTSE. GTSE also is the operating company for General Telephone Company of Georgia, General Telephone Company of North Carolina, Pee Dee Telephone Company and Mutual Telephone Company, all of which were merged into GTSE at the end of 1970. Each of the above companies, including GT of Alabama were under the common management of GTSE prior to their mergers.
The debt-equity ratio of GTSE is about 45% debt and 55% equity, while that of GT of Alabama prior to the merger was 30% debt and 70% equity.
The petition for increased rates filed by GT of Alabama alleged that its continued investment in telephone plants and facilities since its last rate increase, together with the increased costs of materials, wages, and supplies, resulted in a rate of return to GT of Alabama of 6.64%, which was inadequate to enable the company to fully perform its duties to the public. The petition further alleged that a fair rate of return to GT of Alabama should be not less than 9.4% and the proposed rate increase of $2,504,450 would produce a rate of return of 9.35% on the reasonable value of GT of Alabama intrastate property devoted to public use.
On 27 October 1972, the Commission established a reasonable test period to be used in its consideration of the petition to be the year ending 31 May 1971.
Hon. George C. Wallace, as Governor of the State of Alabama, and 16 municipalities, and the citizens of those municipalities who were telephone subscribers entered the proceedings as intervenors and actively participated therein.
After several days of hearings, the matter was taken under advisement by the Commission on 21 January 1972.
On 29 February 1972, while the matter was under submission, the GT of Alabama and GTSE filed a petition for merger of GT of Alabama into GTSE, and for the issuance of a certificate of convenience and necessity authorizing GTSE to operate the properties of GT of Alabama. After notice, the petition was heard on 3 April 1972.
On 18 April 1972, the intervenors filed a petition for further hearing on the petition to increase rates and in the alternative for the incorporation of the merger proceedings in the present rate proceedings. No action was taken on this petition, and on 19 April 1972, the Commission confirmed and approved the merger, and granted to GTSE a certificate of convenience and necessity to operate the telephone properties of GT of Alabama, "and to acquire all the operating rights and privileges belonging thereto. The rates for telephone service now in effect in each of the telephone exchanges affected hereby shall continue until otherwise ordered by the Commission."
Following the order approving the merger, the intervenors on 5 May 1972, filed a petition to dismiss the application filed by GT of Alabama, or, in the alternative that further hearings be had on the petition to increase rates. The Commission took no action on this petition. The petition of 5 May 1972, among other things, asserted that prior to 31 August 1971, GT of Alabama was a wholly owned subsidiary of GTE, and on 1 September 1971, just prior to filing a petition for increase in rates, GT of Alabama became a wholly owned subsidiary of GTSE, which resulted in a change of parties. (GTSE had acquired *526 all of the stock of GT of Alabama on 31 August 1971.)
On 27 October 1972, a majority of the then Commission (Connor and Owen) issued an order granting an annual increase in operating revenue of $1,435,970 to GTSE.
Commissioner McDaniel dissented setting forth several reasons among which are that the record did not justify the increase and that there was a complete change in parties.
The Commission majority found that the income available for return on 31 May 1971 was $2,941,263. Since the investment by the company was to be computed through the year ending 31 May 1972, it was necessary to determine the income which the additional investments made in the year of 31 May 1971 to 31 May 1972, would produce. The company introduced evidence tending to show that its main stations would grow by 4,875 during the projected year, and increase in income factor would be 1.072143. The Commission found this projection acceptable. The Commission further found toll revenues under this formula would impute an additional $248,724, but that with such additional revenue calculated on the intrastate (Alabama) rate base of $44,771,378 at the end of the test year would amount to a rate of return of 7%. The Commission found this rate of return insufficient to support the programs the utility must carry on, and that a rate of return in the range of 8.50% to 8.75% would be reasonable. The Commission thereupon found that a rate of return of 8.58% would be reasonable, and so fixed the rate of return. This rate of return is not challenged on this appeal. The Commission on the basis of such rate of return further fixed an annual increase in intrastate operating revenue to GTSE in the amount of $1,435,970, instead of in the amount of $2,504,450, as requested in the application. This was on the intrastate rate base of $44,771,378.
The order of the Commission was appealed to the Circuit Court of Montgomery by both the intervenors and the company.
After consideration of the record, oral arguments, and what the appellants describe as "multiple briefs," the Circuit Court found that the Commission did err in its order "as to the following specific issues * * *"
The specific aspects of the Commission's order found to be erroneous by the court were discussed in detail, with reason and calculations demonstrating and substantiating the court's conclusions that in the named instances the Commission erred. The net result was that the court found that the order of the Commission allowing a rate increase of $1,435,970 was excessive in the amount of $208,924. The case was thereupon remanded to the Commission for the purpose of entering a proper lawful order in accordance with the decree of the court.
Since the court's action in specific instances resulting in a reduction in the rate increase allowed by the Commission was adverse to the company, and no appeal was perfected by the company from the order of the court, we see no necessity for setting out in detail the reasons and calculations by which the court arrived at its conclusions in these instances.
As to refund of the amounts already paid under the Commission's order, which was found to be excessive in the amount of $208,924, the court below found and decreed:
*527 The limits and standards of our review on appeal from an order of a circuit court upholding an order of the Alabama Public Service Commission was stated as follows in Floyd & Beasley Transfer Co., Inc. v. Alabama Public Service Commission, 276 Ala. 130, 159 So.2d 833:
See also Hiller Truck Lines, Inc. v. Alabama Public Service Commission, 292 Ala. 161, 290 So. 2d 649, citing with approval the above statement from Floyd & Beasley v. Alabama Public Service Commission, supra.
The legislature has committed to the Alabama Public Service Commission matters of vast public interest. Among these powers are the regulation of utilities and their rates, and the regulation of transportation over both railroads and highways. Presumptions are indulged in favor of the orders of the Commission. Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So. 2d 653.
The ultimate question in a rate case is a fair rate of return from a predetermined rate base. Various formulae and complicated calculations have been developed by experts in the field of rate making in determining first, a reasonable rate base, and second, a fair rate of return on such reasonable rate base. In State of Alabama et al. v. Southern Bell Telephone and Telegraph Co., 274 Ala. 288, 148 So. 2d 229, we quoted the following from the book "A Telephone Rate Case" by E. D. Smith:
In the opinion in State of Alabama et al. v. Southern Bell Telephone and Telegraph Co., supra, at page 297, 148 So.2d at page 237, this court wrote:
With the above observation as to principles governing our present review, we now look to the assertions of error which appellants contend infected the proceedings below.
Under assignments of error 1-7 and 30, the appellants question the basic validity of the order of the Commission in granting an increase in intrastate rates to GTSE upon an application for such increase filed by GT of Alabama, a separate corporation. Under these assignments the appellants also assert that the Commission erred in *528 ignoring their petition of 18 April 1972, wherein they sought further hearings in the rate case, or in the alternative, for incorporation in the rate hearing of the record in the merger proceedings involving GT of Alabama and GTSE, and further that the Commission erred in denying appellants' petition of 9 May 1972, for dismissal of the application of GT of Alabama, or for further hearing on the basis of the merger proceedings.
To recapitulate, GTSE had acquired all of the stock in GT of Alabama, and therefore GT of Alabama was a wholly owned subsidiary of GTSE prior to the filing of the application by GT of Alabama for the rate increase. For several years prior GT of Alabama had been managed by GTSE, the officials of the two companies being the same.
On 21 January 1972, after several days of hearings and the introduction of voluminous exhibits, the application for the intrastate rate increase was taken under submission.
On 29 February 1972, the application for merger of GT of Alabama into GTSE was filed. The matter was set for hearing and notices given. At the hearing on the merger application some of the appellants were present and participated therein.
On 19 April 1972, the Commission approved the merger application, and issued a certificate of convenience and necessity to GTSE authorizing GTSE to operate the telephone properties of GT of Alabama, "and to acquire all the operating rights and privileges belonging thereto."
The application for increased rates was taken under submission on 21 January 1972.
The application for merger, and the petitions to reopen the rate hearing all came after the original application for the rate increase had been heard and submitted to the Commission.
Ordinarily, it is within the discretion of a court whether to admit further evidence after the testimony has been closed. James v. Tait, 8 Port. 476; Patterson v. Alabama Fuel & Iron Co., 194 Ala. 278, 69 So. 952; Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 153 So. 261; Bundy v. Echols, 239 Ala. 421, 195 So. 439.
To have reopened the hearings would have involved the initiation of an entirely new rate case, involving a new test year, and the preparation of an entirely new rate base, and a new projection of investment to be added after the new test year period. With the lag inherent in the regulation process, and the inflation of the last few years which continues unabated, we find no basis for concluding that the Commission erred in granting the petition for merger, and in not considering the collateral motions of the appellants to reopen the hearing already concluded.
Although there was no attempt to amend the application for a rate increase by substituting GTSE for GT of Alabama as provided under Section 239, Title 7, Code of Alabama 1940, implicit in the merger order issued by the Commission was the fact that GTSE was acquiring all of the properties, rights, and privileges of GT of Alabama, including the right to continued operation of the telephone business of GT of Alabama and that the merger order spelled the end of GT of Alabama.
Section 21(71), Title 10, Code of Alabama 1940, provides, among other things, that upon consolidation or merger of corporations, the rights, privileges, powers, franchises, and all property, real, personal or mixed, and all debts due on any account, as well as for stock subscriptions, and all other things in action belonging to each of the several consolidating or merging corporations, shall be vested in the corporation resulting from or surviving such consolidation or merger. An appellate court should view with less strictness the procedural aspects of proceedings before *529 an administrative body than when dealing with procedural aspects occurring in a lower court. Section 73 C.J.S. Public Administrative Bodies and Procedure § 230, p. 602.
While technically there was no motion to substitute GTSE for GT of Alabama, we conclude that in view of the Commission's action in approving the merger and the results flowing from such approval, the action of the Commission in granting a rate increase to GTSE and the application filed by GT of Alabama should be considered under the circumstances of this case as nothing more than a proper substitution of one party who has acquired the total interests of the originating party for whom he, or it, is substituted. We hold there was no change of parties resulting from the action of the Commission in this aspect.
Under these assignments appellants argue that the Commission erred in ignoring their petitions for further hearings after the merger order. As stated in appellants' brief:
In State ex rel. Utilities Commission v. Lee Telephone Co., 263 N.C. 702, 140 S.E.2d 319, the Supreme Court of North Carolina considered a question highly similar to the one here presented. The North Carolina Supreme Court concluded, at 140 S.E.2d 324:
*530 To this same effect see also Re Montana-Dakota Utilities Company, 78 Pur.N.S. 33; Re Manufacturers Light & Heat Company, 11 Pur.3d 28.
We are in accord with the above holdings. It follows therefore that we conclude that the Commission did not err in ignoring appellants' petition to grant further hearings, in that the Commission could properly be concerned only with a fair rate of return resulting from the operation of the telephone properties located within this state and produced by its intrastate operations.
Assignments of error 11 and 12 raise the questions of whether the intervenors had the right to, (1) introduce evidence of savings from the filing of a consolidated income tax return by GTE and GT of Alabama, and, (2) whether the appellants should have been permitted to show that the Commission had applied such savings in other utility cases.
As to the second point (2) above, counsel for appellants assert that the Commission's attention was specifically directed to page 223(a) of the 1971 Annual Report of the Alabama Power Company made to the Commission wherein the Power Company passed on to the consumer the benefits arising out of a consolidated tax return; that in the South Central Telephone Company case (now on appeal) the Commission received such evidence, but refused to give effect to the income tax savings resulting from the consolidated income tax returns, and then in the present case the Commission would not receive such evidence.
This, counsel argue, amounted to granting to one person the right to do that which it denies to another similarly situated, and amounted to arbitrary treatment.
As to the 1971 Annual Report of the Alabama Power Company, it appears that during the cross-examination of a company witness an effort was made to introduce a page from the above mentioned 1971 Annual Report through this witness. He testified he was not familiar with the Southern Company, Alabama Power Company's parent company. With such meager predicate, we cannot say the Commission erred in denying the admission of the document.
In the South Central Telephone Company case (now on appeal) the evidence pertaining to a consolidated income tax return was received, but accorded no effect by the Commission as to the savings resulting therefrom.
Thus actually, the South Central Telephone case above mentioned was the only case properly before the Commission as to the effect to be given savings resulting from a consolidated income tax. No effect was given to such evidence in the South Central case. The court refused to receive such evidence in the present case. Having refused to give effect to such evidence in the South Central case, a refusal to accept evidence of savings from a consolidated income tax in the present case is hardly to be considered as inconsistent.
While consistency in administrative rulings is essential if arbitrariness is to be avoided, yet, as stated in Mobile County Gas District v. Mobile Gas Service Corp., 284 Ala. 664, 227 So. 2d 565, where this court quoted with approval from WOKO, Inc. v. Federal Communications Commission, 80 U.S.App.D.C. 333, 153 F.2d 623, 631:
As to the basic question of whether savings resulting from the filing of a consolidated income tax return should be *531 passed on to the consumers, the appellants state in brief:
This being so, we are unwilling to say that the Commission abused its discretion in allowing the federal income taxes due by GT of Alabama as part of the operating expenses of the company.
Assignment of error No. 13 pertains to the action of the Commission in allowing the company to charge the annual amortization of the telephone plant acquisition adjustment in the amount of $113,058.00 as an operating expense in arriving at the company's income available for return.
The telephone plant acquisition adjustment is the excess over the original cost of the plant which GTSE paid for the properties when it acquired the same from GT of Alabama.
Under the accounting rules of the Commission this excess is required to be placed in a separate account entitled "Telephone Plant Acquisition Adjustment," and this was done.
It is the contention of counsel for the appellants that since this item is disallowed for federal income tax purposes, the same should have been disallowed by the Commission as an operating expense, and if such had been done, the effect would have been to increase the net operating income of the company for rate making purposes by $113,058.00 insofar as the intrastate portion of the net operating expenses of the company were concerned.
Witnesses for the company testified that because of the position taken by the Commission in a 10 March 1969 order excluding from the rate base the telephone plant acquisition adjustment, and disallowing the same, the company was not in the present hearing asking for a return on the telephone plant acquisition amount.
Counsel for appellants assert on this appeal that the company did include the annual amortization of telephone plant acquisition as an expense in determining its book income. This, says counsel for appellants, had the effect of reducing book income for rate making purposes by that amount.
Counsel for appellee contend that the telephone plant acquisition adjustment was an investment by the company and is properly accounted for on the books of the company under the Commission's accounting rules, and that under both FCC rules and Commission rules the telephone plant acquisition adjustment is being properly amortized.
This contention was the subject of considerable cross examination of a witness for the company in the hearing before the Commission.
Again, counsel for appellants contend that because the item was excluded from the rate base in 1969, it was arbitrary for the Commission to allow the same as an item of operating expense in the present proceedings. Counsel for appellants cite Harrisburg Steel Corp. v. Pennsylvania Public Utility Commission, 176 Pa.Super. 550, 109 A.2d 719, decided in 1954, as supporting authority for their contention.
On the other hand, counsel for the company cite American Tel. and Tel. Co. v. United States, 299 U.S. 232, 57 S. Ct. 170, 81 L. Ed. 142, as approving, or certainly allowing, the action of the Commission in permitting the amortizing of the telephone plant acquisition adjustment as was done in this case.
As before stated, prior orders of the Commission are not res judicata. This for the reason that rate making is a legislative and not a judicial function. City of Birmingham v. Southern Bell Tel. and Tel. Co., 234 Ala. 526, 176 So. 301. *532 The legislature, of course, has wide discretion, and its acts are conclusive so long as they are within the constitutional limits imposed on the legislature in performing its functions. As stated in the City of Birmingham case immediately supra:
The treatment of the item as an operating expense would also appear to be justified by the following language in Alabama Public Service Commission v. Southern Bell Tel. and Tel. Co., 253 Ala. 1, 42 So.2d 655:
We find no justifiable basis for reversal of the order of the Commission because of the matters raised by assignment of error No. 13.
Assignments of error Nos. 18-21 relate to a tax rider appearing in a former tariff schedule filed with the Commission by the company. The application of this rider would permit the company to automatically pass on to its Alabama subscribers, without further notice of hearing, all income tax increases or decreases.
The record shows that tax rider charges were removed from the customer's bills effective June 1970. On 1 November 1972, a new tariff was filed by the company with the Commission which superseded the former tariff. No tax rider appears in the new tariff. Therefore no new tax rider charges can now be made without a new tariff being filed and approved by the Commission.
The test period revenues do not reflect any tax rider charges, and since no such charges have been made to the customers since June 1970, and cannot now be made *533 under the new tariff, the point or points sought to be presented under assignments 18-21 are moot. The chief argument for appellants' counsel under these assignments seems to be dissatisfaction that the Commission made no finding as to the tax rider, and that the court below "by its silence, erroneously acquiesced." The mootness of the points raised would justify their being ignored by both the Commission and the court below. We find no merit in assignments 18-21.
Assignments of error Nos. 22 and 24 charge error in the decree of the lower court in failing to reverse that part of the Commission's order which in effect approved, without a hearing, a tariff schedule which permitted GT of Alabama to increase its intrastate long distance toll charges on the basis of increases granted by the Commission to South Central Telephone Company. Such Commission order, effective on 22 February 1971, was done without suspension, notice of hearing, or opportunity to be heard. In other words, by virtue of this order the intrastate long distance tolls of GT of Alabama would "track" the South Central Bell rates.
Argument of counsel for the intervenors is premised upon the contention that to permit an increase in the rates for intrastate tolls by tying the same to rates allowed South Central Bell is a violation of Section 53, Title 48, Code of Alabama 1940, in that such increase is granted without notice or hearing.
Section 53 reads:
Under the terms of Section 53 no notice or hearing is required for putting a proposed tariff schedule into effect.
It is to be noted that Section 54, Title 48, Code of Alabama 1940, does provide that if in the opinion of the Commission the public interest requires an investigation of a tariff schedule to be made, the Commission, in its discretion, may suspend the operation of such proposed tariff schedule for a period not exceeding six months. Section 54 further provides that unless as a result of its investigation, the Commission orders otherwise before the termination of the sixty-day period, such tariff schedule becomes effective.
No such action was taken by the Commission in this case, and therefore the proposed tariff schedule filed by GT of Alabama adopting the rates of South Central Bell became effective, and no notice or hearing was required under the terms of Section 53 to effectuate such schedule.
According to the testimony of F. Gordon Maxson, Vice President of GT of Alabama and of GTSE, South Central Bell places before the Commission information pertaining to the revenues generated by General Telephone when South Central Bell's tariff proposals are considered. Such procedure is true in all states in which General Telephone operates, and is true all over the country since 1970. Permitting GT of Alabama to track South Central rates as to intrastate tolls will ultimately affect General Telephone's rate of return.
Uniformity of such rates for different companies is desirable. As stated in *534 Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 140, 47 So.2d 455:
We find no basis for reversing the order of the Commission because of the point raised by assignments of error Nos. 22 and 24.
Appellants' assignment of error No. 23 reads that the court erred in:
This assignment was amended by adding at the end thereof references to pages 681-707 also.
The verbiage of this assignment is somewhat general, and the reference to the numerous transcript pages increases its generality, virtually to the point of making this assignment faulty.
However, we will treat the same in light of appellants' argument under this assignment.
While the assignment seems to complain of the terms of the "settlement agreement" between South Central and GT of Alabama, this argument overlooks the tariff schedule which became effective on 22 February 1971, mentioned above, which permitted GT of Alabama to increase its intrastate long distance toll charges on the basis of increases granted by the Commission to South Central.
In this connection, the order of the Commission now being considered, under the general heading of "Revenues," reads in part:
As stated in appellants' brief:
It appears that of the $248,724 found to be due GT of Alabama by virtue of "tracking" South Central's rates, the Commission adjusted and reduced GT of Alabama's revenue to permit a revenue adjustment of $122,347, rather than $248,724, as income available for return to GT of Alabama at the end of the test period. The Company not having appealed, and this adjustment being adverse to it, no need arises to consider this adjustment by the Commission.
In their argument under this assignment (assignment No. 23), counsel for appellants assert:
We disagree. The Commission could of course take notice of its order establishing the same rate for intrastate tolls for South Central and GT of Alabama. Additionally, there was evidence before the Commission showing that uniform rates between different telephone companies operating in the same state are desirable, and that such orders seeking to bring about such uniformity have been disapproved, and are in general use throughout the country. As an example, the effect of such uniform rates is to assure that a customer in Dothan, Alabama, where GT of Alabama operates, calling Montgomery, Alabama, would pay the same rate for such a call as would a customer of South Central, operating in Montgomery, calling Dothan.
Section 82, Title 48, Code of Alabama 1940, specifically provides, among other things, that:
We are not convinced by appellants' argument that the action of the Commission in this instance was capricious or arbitrary, and should be disturbed by us.
Under assignments of error Nos. 26 and 28, counsel for appellants argue that the Commission erred in applying a rate of return calculated on invested capital rather than on a statutory rate base. By a series of complicated calculations, counsel arrives at the conclusion that had the rate of return been applied to the proper statutory rate base, it should have been computed at 8.36% rather than the rate of return fixed by the Commission at 8.58%. This return of 8.58%, says counsel, was the result of including cost free funds therein. Counsel refers to X-33 in support of this statement. The record shows that an Exhibit 33 was identified and later "accepted subject to the rule."
The Commission order as to the fixing of the rate base reads:
It is to be noted that while the Commission stated that the item of $9,407,709 was properly includable in the rate base, such item was listed, and removed, in calculating the rate base of $44,771,378.
Company witness L.E. Orstad, Treasurer of GT of Alabama, and of GTSE, gave extensive testimony as to studies he had made concerning the rate base and rate of return which he contended should be allowed as a result of his studies. In connection with Exhibit 33, the record shows the following during Mr. Orstad's examination:
Mr. Orstad further testified that a rate of return in the above area was essential for the economical management of the company for the enlarging of its plant facilities and equipment, and in order to provide adequate service to its customers.
The Commission did not allow a rate of return within the range contended for by Mr. Orstad, but instead fixed it at 8.58 per cent.
All in all, and after a study of the evidence presented, and reasonable inference therefrom, we conclude there was substantial evidence to support the rate base of $44,771,378 established by the Commission. We further hold that the rate base was established in conformity with Section 52, Title 48, Code of Alabama 1940, as amended by Act No. 97, found in 1971 Acts of Alabama, First Ex.Sess., p. 171.
Section 52, Title 48, Code of Alabama 1940, as amended by Act No. 97, may be found in the 1973 Cumulative Supplement, Vol. 10, p. 362 of 1958 Recompiled Code of Alabama, and in parts pertinent to this review, now reads:
In view of the above, there being substantial evidence tending to support the Commission's order fixing the rate base, the order is due to be affirmed in this aspect. North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183; Alabama Electric Coop., Inc. v. Alabama Power Co., 274 Ala. 332, 148 So. 2d 613; Floyd & Beasley Transfer Co. v. Alabama Public Service Commission, 276 Ala. 130, 159 So. 2d 833.
As to the action of the Commission in fixing a rate of return of 8.58%, this court in Alabama Public Serv. Com'n v. Southern Bell T. & T. Co., 268 Ala. 312, 106 So. 2d 163, as a guide to the Commission after remandment, quoted the following from Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S. Ct. 281, 88 L.Ed. 333:
We do not intimate that the Commission order in the present case contained infirmities, but we are clear to the conclusion that the evidence was entirely sufficient to support the rate of return as fixed by the Commission.
Under assignment of error No. 27, counsel for appellants contend that the Commission erred in including in the rate base the sum of $818,456, for "Materials and Supplies," and the sum of $150,000 for "Cash Working Capital."
In brief counsel state that in a previous hearing concerning GT of Alabama the Commission, by order on 10 March 1969, (Docket 16048), had refused to include in the rate base the sum of $779,497 for "Materials and Supplies," and had reduced GT of Alabama's request for $584,216 for "Cash Working Capital" to $50,000. As to the item "Materials and Supplies," the Commission in the 1969 hearing found that substantial amounts of construction materials in the "Materials and Supplies" account were offset by open accounts payable to suppliers at no cost to the petitioners. The Commission further found that the request that $584,216 "Cash Working Capital" was grossly exaggerated and reduced this item to $50,000 in the rate base.
Counsel again insist that the allowance of $818,456 for "Materials and Supplies," and $150,000 for "Cash Working Capital" in the rate base in the present proceedings amounted to such a glaring inconsistency with the 1969 order of the Commission as to negate the validity of the rate base.
Counsel for appellants make no point as to the inclusion in the present case of $355,981, representing salvaged central office equipment in the "Materials and Supplies," but contend that the balance of $462,471 left, after deducting the properly allowed $355,981, was improperly included in the rate base.
We again reiterate that the Commission's action in the rate making is legislative, and therefore each case is to be considered on its own particular facts.
In the present case Mr. Gawronski, General's Vice President-Controller, *538 testified that materials and supplies in the amount of $818,456 were on the company's books at the end of the test period. This included poles, cables, wire, and salvaged central office equipment. With the exception of the salvaged central office equipment (unquestioned by the petitioners), the remaining materials and supplies were necessary and used in day to day maintenance and construction work in Alabama. Such supplies were necessary because of General's improvement program which generated a substantial requirement for the on-hand materials. Mr. Gawronski gave as part of such requirements that General had on hand $452,692 worth of cable which was being put in use at about the rate of $150,000 per month for interstate and intrastate construction. This testimony was uncontroverted. We find no abuse of discretion in the allowance of the $818,456 item in the rate base for "Materials and Supplies."
Likewise, there was substantial evidence justifying the allowance of $150,000 for "Cash Working Capital." In fact counsel for the appellee contends that the evidence was sufficient to support the entire $719,471 request as part of the rate base, notwithstanding the Commission's allowance of only $150,000 for this item in the rate base. The allowance of $150,000 for "Cash Working Capital" was, under the evidence, a matter for the Commission.
There can be no doubt that "Materials and Supplies" and "Cash Working Capital" are items properly includable in determining a rate base. See Re Diamond State Telephone Co., 21 PUR 3d 417; State v. Southern Bell Telephone and Telegraph Co., 274 Ala. 288, 148 So. 2d 229.
Appellants' assignments of error Nos. 14-17, and 29, assert that the Commission erred in projecting that the company's main stations would grow by 4,875 from May 1971 to May 1972 (the year following the test period), and that the projected income would be increased by a factor of only 1.072143. In its order the Commission stated: "We find this acceptable."
It is the contention of counsel for appellants that the income projection factor of 1.072143 is too low. In support of their argument in this respect, appellants largely rely on exhibits prepared by their witness.
Counsel for appellants contend that the company will enjoy a substantial net gain in revenue from main station growth, and from the Station Improvement Program involved therein. Counsel for the company contend there will be no substantial increase in revenues because the evidence shows offsetting losses due to elimination of mileage charges.
The witness for the appellants who prepared the exhibits stated on cross-examination that the exhibits failed to reflect offsetting expenses such as depreciation and loss of mileage charge revenue due to rate base organization.
The actual net increase of revenue during the test period was only $2,048.15, and was included in the income available for return.
Again, we refer to that portion of the Commission's order reading:
Under the contradictory state of the evidence before us, and giving to the order of the Commission the presumption required, we are not in position to say that any reversible error arises under assignments of error Nos. 14-17, and 29.
Under assignments of error Nos. 8 and 9, counsel for appellants assert that, when on appeal from an order of the Commission approving a rate increase in a utility *539 case, such increased rates are judicially disapproved in part, the utility must refund to the subscribers such portion of the rate increase as may be judicially disapproved. Counsel contends that the court erred in not ordering such refund.
Counsel's argument under this assignment asserts and erroneously assumes that any part of a rate increase ordered by the Commission and collected by the utility which may later be disapproved by a court, is either excessive or unlawful, or both, and any amounts collected by the utility which are later judicially disapproved, must be returned to the subscribers.
The court below declined to order such refund, stating:
We agree with the court's conclusions in this regard.
Neither this court, nor the circuit court can exercise any powers not authorized by statute in reviewing orders of the Public Service Commission since judicial review of rate making orders is a limited one. Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 119, 47 So. 2d 449; Ex parte Alabama Public Service Commission, 268 Ala. 322, 106 So. 2d 158; Illinois Central R. Co. v. Thomas Alabama Kaolin Co., 275 Ala. 236, 153 So. 2d 794.
It must be remembered that in this case we are dealing with a Commission prescribed schedule of rates. Section 84, Title 48, Code of Alabama 1940, states in effect that an appeal without a supersedeas bond does not stay or supersede the order of the Commission. The reason for such rule is stated in T. R. Miller Mill Co. v. Louisville & Nashville R. Co., 207 Ala. 253, 92 So. 797, as follows:
In Mandel Bros. v. Chicago Tunnel Terminal Co., 2 Ill. 2d 205, 117 N.E.2d 774, the Supreme Court of Illinois denied the right to reparations under similar conditions to those we are now considering, saying:
Further, by Section 102, Title 48, Code of Alabama 1940, which section is within the comprehensive regulatory system for transportation companies, telephone companies are placed within such regulations. The last sentence of Section 124 of Title 48 within the statutory scheme for regulating transportation companies provides:
The above controlling principles negative any basis of reversal resulting from assignments of error Nos. 8 and 9.
Finally, under assignment of error No. 10, appellants contend that the court erred in not allowing attorney's fees to counsel for appellants.
The general rule is, there can be no recovery as damages the expenses of litigation, including attorney's fees paid by the opposing party, in the absence of a contractual or statutory duty, other than in a few recognized grounds by equity principles authorizing such liability. Hartford Accident & Indemnity Co. v. Cosby, 277 Ala. 596, 173 So. 2d 585.
However, counsel for appellants contend that they are within the influence of Section 63, Title 46, Code of Alabama 1940, which provides in part pertinent to this review:
The rates were collected under order of the Commission. They were lawfully collected until set aside by a judicial decree. No supersedeas order has been obtained. Therefore, no trust fund can be deemed to have been created and Section 63, Title 46, Code of Alabama 1940, is not here applicable.
The order of the Circuit Court is due to be affirmed, and it is so ordered.
Affirmed.
All the Justices concur. | January 16, 1975 |
792f9d85-ece9-4bed-8f4b-1a9f4dca6146 | Ex Parte Newton | 93 So. 2d 164 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 164 (1956)
Ex parte Reuben L. NEWTON.
6 Div. 763.
Supreme Court of Alabama.
October 4, 1956.
Rehearing Denied March 14, 1957.
Roderick Beddow, T. Julian Skinner, Birmingham, and J. O. Sentell, Jr., Montgomery, for petitioner.
Harold M. Cook, Birmingham, for Board of Commissioners.
John T. Batten, Birmingham, amicus curiae.
PER CURIAM.
This is a petition for review of the decision of the Board of Commissioners of the Alabama State Bar. The Board made an unanimous finding that respondent was guilty of violating Rules 20 and 36 of § A of the Amended Rules Governing the Conduct *165 of Attorneys in Alabama, and rendered a judgment suspending him from the practice of law for a period of five years. The respondent petitioned this Court to stay his suspension, pending the outcome of this review, which was granted.
The Amended Rules Governing the Conduct of Attorneys in Alabama were promulgated by the Board of Commissioners of the Alabama State Bar and approved by this Court on June 11, 1940, under authority of Title 46, § 25, Code of 1940.
The pertinent parts of these rules are as follows:
The complaint consisted of twenty charges alleging violations of these two rules. The Board, in arriving at its decision, considered only fourteen of these twenty charges which involved four accidents in which persons were killed or injured.
In reviewing disbarment proceedings before the Board of Commissioners, this Court possesses inherent power as well as specific statutory authority to take such action as is agreeable to our judgment; and we may adopt the findings and conclusions of the Commissioners or may alter or modify them. Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671; Ex parte Grace, 244 Ala. 267, 13 So. 2d 178; Ex parte Cooke, 263 Ala. 481, 83 So. 2d 195; Alabama Code of 1940, Title 46, § 25.
In the instant case there are only two questions presented. The first is whether there was sufficient evidence to sustain the finding and judgment of the Board of Commissioners that the petitioner was guilty of violating the two rules; and second, whether from a consideration of the whole facts and circumstances there should be any alteration or modification of the judgment. (We view it as axiomatic that if petitioner were guilty of violating rule 20, he would be guilty of violating rule 36.)
We see no good which would come from a detailed discussion of the evidence, nor would any useful purpose be thereby served. Petitioner, on a proper showing at the end of the interdictory period, might be privileged to re-enter the profession (Section C, Amended Rules), so out of deference to his status we have exercised our prerogative and refrained from setting out the evidence in extenso. Title 13, § 66, Code of 1940; Ex parte Grace, supra (5).
Only adverting to the evidence generally, solicitation of his professional employment and conduct unbecoming an attorney on the part of respondent were sought to be shown by the evidence in relation to the following accidents: (1) The drowning of Malcolm and Katherine Welch in the capsizing of a boat on the Warrior River on May 1, 1952 (Charges 1, 2, 19 and 20); (2) A motor vehicle accident near Hull, Alabama, on November 10, 1951, in which Lester Banks and Willie E. Kilgore were injured (Charges 3, 4, 5 and 6); (3) An automobile accident in which Ray Miller was injured on Alabama Highway 69 on April 13, 1951 (Charges 7 and 8); (4) The wreck on Highway 78 in Walker County, Alabama, on March 17, 1953, in *166 which Mr. and Mrs. W. L. Minga were killed and Monroe Rhodes and Lelia Rhodes were injured (Charges 9, 10, 11 and 12).
It is sufficient to say that after a careful and considerate study, we conclude that even though the veracity of some of the witnesses for the prosecution was severely impeached, there was substantial legal evidence introduced to sustain some of the charges, thereby warranting the decision of the Board convicting the petitioner.
The excellent briefs of counsel have been able and exhaustive and have aided the Court greatly in arriving at a proper solution of the case. The amicus curiae brief poses the constitutional question that the statute under which authority petitioner was tried is void because it deprived him of a right to trial by jury.
The same contention was advanced in Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671, Ex parte Walker, 228 Ala. 130, 152 So. 246, Ex parte Fite, 228 Ala. 4(7), 152 So. 246, and decided adversely to the petitioners in those cases. Upon a restudy of the question we have concluded the former holdings to be sound and that the question must now be regarded as set at rest.
There can, of course, be no justification for ambulance chasing. It cannot be too strongly condemned. But as we observed in the Thompson and Grace cases, supra, "To temper justice with mercy is but to respond to our best impulses in all the affairs of life." [228 Ala. 113, 152 So. 243] After evaluating the evidence proffered by the prosecution, some of which was far from credible, and fully mindful of our duty and responsibility both to petitioner and the public, after due deliberation we are persuaded that a suspension period of two years would serve all purposes and that the order of the Board to that extent be modified and as modified will be affirmed. See Thompson, Walker, Fite and Grace cases where sentences were reducedOrder of suspension to begin when the final judgment in the case shall have been entered in this Court.
Modified and affirmed.
All Justices concur. | October 4, 1956 |
0b9140b1-d160-4a53-b94f-82dc12177324 | Ex Parte National Association for Advancement, Etc. | 91 So. 2d 214 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 214 (1956)
Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation.
In Re: The STATE of Alabama ex rel. John PATTERSON, as Attorney General of the State of Alabama.
v.
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation.
3 Div. 779.
Supreme Court of Alabama.
December 6, 1956.
*216 Arthur D. Shores, Birmingham, Fred D. Gray, Montgomery, and Robt. L. Carter, New York City, for petitioner.
John Patterson, Atty. Gen., for respondent.
PER CURIAM.
The Circuit Court ordered the petitioner to bring certain books, documents and papers into court on a certain date for inspection by the State of Alabama in a cause filed by the Attorney General on behalf of the State against the petitioner. On the date set to produce, the court granted the petitioner eight additional days within which to comply with its order.
Thereafter the court offered the petitioner additional time to produce the documents. In reply to the court's offer to grant additional time, counsel for petitioner stated in open court that additional time would not be required, that the petitioner would not produce the books, documents, and papers as ordered by the court and that it elected to stand on its decision not to bring the papers into court for inspection by the State.
As a result of petitioner's brazen defiance of the order of the court, the petitioner was adjudged in contempt of court and fined $10,000. The decree provided that in the event the petitioner failed to comply fully with the order to produce within five days from that date that the fine for contempt would be raised to $100,000.
On the last day that petitioner had to comply with the court's order or suffer the fine to be raised for refusing to comply, the petitioner offered to bring some of the documents into court, but refused to fully comply with the order to produce. This offer of partial compliance by the petitioner was not accepted by the court. Thereafter the court decreed that the fine be raised as indicated above.
This petition for writ of certiorari presents the single question, viz.: The legality vel non of the order of contempt.
The ultimate aim and purpose of the litigation is to determine the right of the state to enjoin petitioners from doing business in Alabama. That question, however, is not before us in this proceeding.
*217 On the petition for certiorari the sole and only reviewable order or decree is that which adjudges the petitioner to be in contempt. Certiorari cannot be made a substitute for an appeal or other method of review. Certiorari lies to review an order or judgment of contempt for the reason that there is no other method of review in such a case. Ex parte Dickens, 162 Ala. 272, 50 So. 218, 220. Review on certiorari is limited to those questions of law which go to the validity of the order or judgment of contempt, among which are the jurisdiction of the court, its authority to make the decree or order, violation of which resulted in the judgment of contempt. It is only where the court lacked jurisdiction of the proceeding, or where on the face of it the order disobeyed was void, or where procedural requirements with respect to citation for contempt and the like were not observed, or where the fact of contempt is not sustained, that the order or judgment will be quashed.
It is well to remember that "a proceeding for contempt is not a part of the main case, before the court, but is collateral to it, a proceeding in itself." Ex parte Dickens, supra. In the process of the trial in the main case there are ample remedies for review. Appeal lies from interlocutory decrees, such as those on demurrer to the bill, orders granting, or refusing temporary injunctions, orders sustaining or denying motions to dissolve or discharge. Tit. 7, §§ 754, 1057, Code of 1940.
An order requiring defendant to produce evidence in a pending cause may be reviewed on petition for mandamus. Ex parte Hart, 240 Ala. 642, 200 So. 783. Hence, if petitioner felt itself aggrieved by the order requiring it to produce certain evidence, it should have sought to have the order reviewed by mandamus. Where a party to a cause elects not to avail of such remedies to test the validity of an order requiring him to do or refrain from doing a certain act and simply ignores or openly declines to obey the order of the court, he necessarily assumes the consequences of his defiance, and is remitted to the lone hope of having the reviewing court find and declare the order of contempt void on its face. That is the status of petitioner here.
Here we do not have before us a decree on the equity of the bill, or a final decree granting relief to complainant, or, in fact, the decree granting a temporary injunction. All that we have presented to us is the order adjudging the petitioner to be in contempt, and as we will show that order is well sustained.
So, were the sanctions imposed upon petitioner for its willful contempt committed in the presence of the court within the court's lawful authority? We will first inquire whether the contempt in the instant case is in its nature civil or criminal.
We approved the following definition of a civil contempt in Ex parte Dickens, supra:
The distinction between civil and criminal contempts is thus stated in 12 Am.Jur., Contempt, § 6, p. 392:
Criminal and civil contempts are defined in 17 C.J.S., Contempt, §§ 5 and 6, pp. 7, 8, to be as follows:
We indicated our approval of both of the above quotations in Ex parte King, 263 Ala. 487, 491, 83 So. 2d 241, 245.
We held the contempt to be criminal in the King case, 263 Ala. at page 490, 83 So.2d at page 245 because it was "`* * punishment for what has been done, and it committed petitioner to jail for a definite period of time.'" We further stated, 263 Ala. at page 491, 83 So.2d at page 245, "It seems to us that the penalty is for past disobedience rather than to compel obedience." Ex parte King, supra.
We also held the contempt to be criminal in Ex parte Hill, 229 Ala. 501, 158 So. 531, for the same reasons.
The petitioner insists that its contempt was criminal because the trial court used the word punishment in the decree. The Supreme Court in United States v. United Mine Workers of America, 330 U.S. 258, 297, note 64, 67 S. Ct. 677, 698, 91 L. Ed. 884, speaking of the use of the word punishment as indicating the type of contempt said: "`punishment' has been said to be the magic word indicating a proceeding in criminal, rather than civil, contempt. * * * But `punishment' as used in contempt cases is ambiguous. `It is not the fact of punishment, but rather its character and purpose * * *.' Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 441, 31 S. Ct. 492, 498, 55 L. Ed. 797." There were two fines in the United Mine Workers of America case. The fine assessed for past contumacy was held to be for criminal contempt; and the fine to coerce the union into future compliance with the court's order was held to be for civil contempt.
In the light of these principles it is clear to us that the fines in the instant case were for civil contempt. The decree adjudging the $10,000 fine said:
The $10,000 fine was coercive because it gave the petitioner a right to have the fine set aside after full compliance with the order to produce. The $100,000 fine was coercive because the petitioner had five days within which to comply with the court's order or to be fined said amount. Neither fine apparently was severe enough or the petitioner would have produced the documents within the time allowed instead of offering partial compliance with the court's order on the last day of grace.
*219 The time given the petitioner in the instant case prior to assessing the larger fine was the same time given the union by the Supreme Court of the United States in modifying the civil contempt fine in the United Mine Workers of America case, supra. We quote from, 330 U.S. at page 305, 67 S.Ct. at page 702:
Our statutes limit punishment for contempt by the circuit court to five days in jail and a fine of fifty dollars. Title 13, §§ 9 and 143, Code of 1940. But our cases hold that the statutory limitations apply to criminal contempt and not to civil contempt. Ex parte King, supra; Ex parte Hill, supra; Ex parte Dickens, 162 Ala. 272, 50 So. 218.
The amount of the fine in the instant case, not being limited by statute, is within the sound discretion of the court and in the absence of an abuse thereof will not be disturbed. MacInnis v. United States, 9 Cir., 191 F.2d 157, certiorari denied, 342 U.S. 953, 72 S. Ct. 628, 96 L. Ed. 708; United States v. Landes, 2 Cir., 97 F.2d 378; Ex parte Hill, supra. The fine adjudged by the circuit court is not excessive.
We could well conclude here by ordering a denial of the writ and a dismissal of the petition, but will discuss briefly the merits of the order to produce so that the parties may know the views entertained by the court.
The petitioner argues that its belated offer to produce included everything except items number 2 and 8 as set out in its brief, and that it was not required to produce these. Items 2 and 8 are:
Assuming that the petitioner did offer to bring in for inspection by the State everything except the documents listed in items 2 and 8, could the court require the petitioner to disclose this information? We think so. The court held the information to be competent and relevant; and the petition shows that the court had jurisdiction of the petitioner and of the subject matter.
This court in holding that an officer of the Ku Klux Klan, Inc. was in contempt of court for failing to turn over a list of members of said organization when ordered to do so by the court, said:
The Supreme Court of the United States recently upheld a contempt citation of a labor union official, for his failure to produce before a grand jury, union records "showing its collections of work-permit fees, including the amounts paid therefor and the identity of the payors * * *."
*220 (Emphasis supplied). The court said, 322 U.S. at page 705, 64 S.Ct. at page 1254:
The courts, when their jurisdiction is duly invoked, have authority to exercise visitatorial powers and inquire as to the acts of such corporations as the petitioner and keep them within the bounds of their lawful authority. Essgee Co. of China v. United States, 262 U.S. 151, 43 S. Ct. 514, 67 L. Ed. 917; In re Verser-Clay Co., 10 Cir., 98 F.2d 859, 120 A.L.R. 1098; Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann.Cas.1912D, 558; Ex parte Morris, supra.
The guaranties found in the Federal and State Constitutions against compulsory self-incrimination do not extend to a private corporation so as to justify it in refusing, on the ground that it might be thereby incriminated, to comply with a lawful order directing it to produce corporate records in legal proceedings. United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542; Wilson v. United States, supra; Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652; United States v. Lawn, D.C.S.D.N.Y., 115 F. Supp. 674.
It is clear, therefore, that the circuit court, in equity, had authority to order the petitioner to disclose names, addresses and dues paid by petitioner's members, officers, agents and employees and that the petitioner could be held in contempt of court for non-compliance with the court's order to produce.
Writ denied and petition dismissed.
All the Justices concur. | December 6, 1956 |
dc626e63-98b6-4ad6-9d9b-00ded19ec7d9 | Railway Express Agency v. ALABAMA PUB. SERV. COM'N | 91 So. 2d 489 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 489 (1956)
RAILWAY EXPRESS AGENCY, Inc.,
v.
ALABAMA PUBLIC SERVICE COMMISSION and Capital Motor Lines.
3 Div. 714.
Supreme Court of Alabama.
December 21, 1956.
*491 Knabe & Nachman, Montgomery, for appellant.
John Patterson, Atty. Gen., and Hill, Hill, Stovall & Carter, Montgomery, for appellees.
LIVINGSTON, Chief Justice.
On March 24, 1953, Capital Motor Lines, a motor carrier of passengers, sought authority from the Alabama Public Service Commission to transport, in vehicles other than passenger-carrying vehicles, express packages. In its original application, Capital Motor Lines sought an order amending Motor Carrier Certificate of Public Convenience and Necessity No. 3 (its passenger certificate) by adding thereto authority to transport express packages in equipment other than passenger-carrying equipment. The application was subsequently amended so as to request that the authority issued carry with it all the restrictions, provisions, and limitations contained in Capital's Local Express Tariff No. 6. As an alternative prayer, applicant requested that the Commission issue a separate certificate authorizing the transportation of express in equipment other than passenger-carrying equipment on all routes authorized under said Certificate No. 3, subject to the above-mentioned restrictions.
The application was opposed by various regular-route truck lines and by the Railway Express Agency.
The application was heard by the Commission on the 9th day of June, 1953, after due notice to all interested parties. On March 9, 1954, the Commission ordered that a separate certificate (Motor Carrier Certificate of Public Convenience and Necessity No. 2440) be issued to Capital Motor Lines granting the authority sought under the alternative prayer of the application.
The Railway Express Agency appealed to the Circuit Court of Montgomery County, in Equity, which upheld the order of the Commission. From the ruling of the Circuit Court, the Railway Express Agency appeals.
Appellant contends that the Public Service Commission is totally without statutory authority to authorize a passenger carrier to transport express packages in vehicles separate from passenger-carrying vehicles in connection with its passenger bus service and over the same routes.
The Public Service Commission is of statutory creation and its authority and powers are prescribed by the statutes and must be sought in the statutes alone. Alabama Great Southern Ry. Co. v. Alabama Public Service Commission, 210 Ala. 151, 97 So. 226; Alabama Public Service Commission et al. v. Louisville & N. Ry. Co., 206 Ala. 326, 89 So. 524.
Title 48, § 301(9), Code of Alabama 1940, 1953 Cum. Pocket Part, authorizes the Commission to grant the certificate requested by the appellee upon proper showing. This section provides:
Appellant, however, contends that the authority granted to the Commission under Sec. 301(9), supra, is expressly limited by Sec. 301(10), subd. D, Title 48, Code 1940, 1953 Cum. Pocket Part, which provides:
In support of his contention that Sec. 301 (10), subd. D, expressly limits the rights that a passenger carrier can acquire under a certificate of convenience and necessity, and that this section prohibits the Commission from granting a subsequent certificate predicated upon evidence of convenience and necessity, authorizing the transportation of express in equipment other than passenger-carrying equipment, appellant cites the following cases construing the Federal Motor Carrier Act of 1935, 49 U.S. C.A. § 301 et seq., which was the model for the statute in controversy, North Alabama Motor Express, Inc., v. Rookis, 244 Ala. 137, 12 So.2d 183: Capital Motor Lines Common Carrier Application, 1 M.C.C. 462; Louisiana Motor Coaches, 18 M.C.C. 417; Kirk Common Carrier Application, 24 M.C.C. 431, Chicago, Milwaukee, St. Paul & Pacific Ry. Co., Extension of Operations, 41 M.C.C. 689; Lee Speirs Application, 47 M.C.C. 499; Arrowhead Freight Lines v. United States, D.C., 114 F. Supp. 804; F.C.C. v. RCA, 346 U.S. 86, 73 S. Ct. 998, 97 L. Ed. 1470; Texas & Pacific Ry. Co. v. Gulf, Colorado & Santa Fe Ry. Co., 270 U.S. 266, 46 S. Ct. 263, 70 L. Ed. 578.
Capital Motor Lines Common Carrier Application, supra, merely provides that under the provisions of Sec. 208(d) of the Motor Carrier Act of 1935, 49 U.S.C.A. § 308(d), a certificate for the transportation of passengers may include authority to transport mail in the same vehicle with the passengers. Louisiana Motor Coaches, supra, provides that under the Federal statute to authorize the transportation of express, mail and newspapers in the same vehicle with passengers, on application for a passenger-carrier certificate, applicants must show a public need for such transportation independently of the proof of public convenience and necessity for the transportation of passengers and their baggage. We are unable to see how this opinion demonstrates conclusively, as claimed by appellant, that the Commission had never considered that it had authority to authorize, by a separate certificate, passenger carriers to carry express in vehicles other than passenger-carrying vehicles.
In Kirk Common Carrier Application, supra, the applicant sought a certificate of public convenience and necessity, authorizing operation, in interstate commerce, as a common carrier by motor vehicle of passengers and their baggage, and of express, mail and newspapers in the same vehicle with passengers. The applicant introduced evidence showing that if the certificate were granted he intended to purchase a four-wheel trailer to be used in carrying express and newspapers. The Commission, in granting the certificate, stated in regard to applicant's proposed use of a trailer:
The clear implication of this statement is that on proper application, alleging public convenience and necessity, the issuance of a commodity certificate would be favorably considered.
In Chicago Ry. Co., supra, applicant sought a certificate authorizing operation as a common carrier of passengers and their baggage, and of express, mail and newspapers in the same vehicle with passengers. In determining whether a public need existed for the services sought by the application, the Commission stated:
This opinion merely shows that the term "express" as used in the Motor Carrier Act of 1935 encompasses different types of commodities which the various certificates entitle the applicants to transport. We do not interpret this opinion as inferring that passenger carriers are precluded from transporting express in vehicles other than passenger-carrying vehicles, because the type of commodities which they may transport is determined with regard to the safety and convenience of passengers.
In Lee Speirs Application, supra, applicant sought a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle. Applicant had a certificate granted under 49 U.S.C.A. § 308(d), and under that certificate had transported express in vehicles separate from passenger-carrying vehicles. Protestants argued that the applicant's misconduct should prohibit him from receiving the present certificate. The Commission, in granting the certificate, said in regard to the passenger-carrier certificate:
This opinion certainly does not support appellant's contention, but to the contrary, clearly establishes the Interstate Commerce Commission's view that Sec. 308(d) does *494 not limit the authority of the Commission to grant a commodity certificate to a passenger carrier on proper pleading and proof of public convenience and necessity.
We find no support for appellant's contention in Arrowhead Freight Lines v. United States, supra; F.C.C. v. RCA, supra; or Texas Pacific Ry. Co. v. Gulf, Colorado & Santa Fe Ry. Co., supra.
Title 48, § 301(10), subd. D, Code of Alabama 1940, enumerates the rights that a passenger-carrier certificate may confer on an applicant. This section does not deprive the Public Service Commission of authority to grant a certificate of convenience and necessity separate from its passenger-carrier certificate to a passenger carrier authorizing it to transport express in vehicles other than passenger-carrying vehicles upon a proper showing by the applicant. Thus, the Commission had authority under Title 48, § 301(8) and (9), Code of 1940, to issue such a certificate in this case.
The order of the Public Service Commission on appeal to this court is taken as prima facie just and reasonable, and the finding of the Commission will not be overturned if supported by legal evidence of substantial weight and probative force. Section 82, Title 48, Code 1940; North Alabama Motor Express, Inc. v. Rookis, supra; Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So. 2d 721; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409; Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So. 2d 401.
Applicant presented a representative of a leading florist who testified that approximately 97½ per cent of the cut flowers shipped by his company are shipped by bus express. This witness explained at length why bus express is essential to his business. This witness finds that no other type of service lends itself to the movement of this product as does bus express service. He has experienced delays due to crowded conditions on Capital's line and advocates the supplementing of applicant's service as proposed. Two large shippers of automobile parts testified that bus express service is peculiarly fitted to serve their needs, and they, too, have experienced delays due to crowded conditions. They testified that the proposed service would serve a convenience and necessity. A clothing manufacturer of Luverne, Alabama, testified that there is a public convenience and necessity to be served by the proposed service. A representative of one of the largest wholesale drug houses in the south testified that the proposed service would be of substantial benefit to his business and that it would serve a public convenience and necessity. All of these witnesses use Capital's express service regularly and testified that they would not take any of their business which has been handled by the protestants away from the protestants if the service sought by the application were allowed. A company witness for Capital testified that the growth in popularity and volume of its bus express service, without solicitation on its part, has caused a condition on applicant's line under which it cannot promptly transport all shipments offered to it and shipments are being held over from one schedule to another, and even from one day to another due to lack of space on scheduled equipment. This witness further testified that these delays are causing inconvenience to shippers and receivers and are defeating the very purpose for which bus express service was established, and that if there is a continuing decrease in the number of bus passengers, some busses that are now operating will be removed which will create a greater necessity for the proposed service. On the other hand, protestants testified that they are in a position to handle and are handling this type traffic, and that to grant applicant the authority sought would take from them some traffic which they cannot reasonably afford to lose.
"Necessity" as used in the statute, Sec. 301(9), Title 48, Code 1940, 1953 Cum. Pocket Part, does not mean essential *495 or absolutely indispensable, but merely that the certificate is reasonably necessary for the public good. Alabama Public Service Commission v. Higginbotham, supra; Alabama Public Service Commission v. Crow, supra. The finding of the Commission in the instant case was supported by legal evidence of substantial weight and probative force. In Alabama Public Service Commission v. Western Union Telegraph Co., 208 Ala. 243, 94 So. 472, it was stated:
The Public Service Commission in its report stated:
This in no way violates the requirement of impartial and evenhanded administration of the Motor Carrier Act or the constitutional guaranty of equal protection of the laws. The propriety of granting a certificate of convenience and necessity, due to the nature of the authority granted to the Commission, must be determined according to the facts and circumstances in each case. See Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872.
We are of the opinion that there was not an improper grant of authority to Capital Motor Lines to transport express; therefore, the contention of the appellant that an improper grant of authority to transport express to a carrier which competes with another carrier operating in interstate commerce imposes an undue and unlawful burden on interstate commerce in violation of the Federal Constitution, need not be considered.
The decree of the lower court is affirmed.
Affirmed.
SIMPSON, GOODWYN and SPANN, JJ., concur. | December 21, 1956 |
d18b2269-0ea8-4c89-91f3-60289415bc53 | Gibson v. McDonald | 91 So. 2d 679 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 679 (1956)
Ruby GIBSON
v.
Edward W. McDONALD, Adm'r.
6 Div. 957.
Supreme Court of Alabama.
November 1, 1956.
Rehearing Denied January 10, 1957.
*680 Bryan Chancey, Birmingham, for appellant.
London & Yancey and Jas. E. Clark, Birmingham, for appellee.
STAKELY, Justice.
This is an action by Ruby Gibson (appellant) against Edward W. McDonald, as administrator of the estate of Howard Wallace Fortenberry, deceased (appellee), for damages for personal injuries alleged to have been sustained in an accident which occurred on the 28th day of June 1953 at or near the intersection of 29th Street and 35th Avenue North in the City of Birmingham, Alabama. At the time the plaintiff was a guest in an automobile driven by Josephus Perry, deceased.
The case of Ruby Gibson is based on the alleged negligence of Howard Wallace Fortenberry, who was killed in the collision. Josephus Perry, the driver of the automobile in which Ruby Gibson was riding, was also killed in the collision.
The case was submitted to the jury on a simple negligence count to which the defendant pleaded in short by consent, the general issue and contributory negligence. The court gave the affirmative charge on the issue of contributory negligence at the request of Ruby Gibson. The verdict of the jury was in favor of the defendant. There was a motion for a new trial made by the appellant which was overruled. This appeal followed.
Many of the assignments of error are based on the action of the court in not permitting Ruby Gibson to testify as to certain matters relating to the accident, the theory being that such testimony is inadmissible under the "Dead Man's Statute", § 433, Title 7, Code of 1940.
In brief, the accident occurred in the early moments of June 28, 1953. Police officers of the City of Birmingham arrived at the scene of the accident around two A.M. and made an investigation. Their testimony showed that there were two automobiles at the scene of the accident, one a 1950 Chevrolet and the other a 1946 Buick. A man was found hanging partially out of the Chevrolet. He was dead when the officers arrived and he was identified as Howard Wallace Fortenberry. The officers took pictures and measured the distances between the cars and the curbs of the streets. They also testified as to skid marks on the pavement.
Tendencies of the evidence show that a neighbor hearing the impact of the cars went immediately to the scene of the accident, found Ruby Gibson alive, pried open the door and pulled her out of the wreckage. The driver of the Buick car in which she was riding as a guest was dead. He was identified as Josephus Perry.
The court allowed Ruby Gibson to testify as to her personal injuries and what occurred after she left the scene of the accident, but did not permit her to testify as to any of the details or circumstances of the accident or that she was involved in an accident of an automobile driven by defendant's intestate. She was not allowed to testify as to anything done by defendant's intestate or as to anything done by the automobile occupied by him. She was not allowed to testify as to anything done by the driver of the car in which she was riding or as to any movements of the car in which she was riding at the time of the accident. To summarize the situation, there was an *681 automobile accident at a street intersection in Birmingham, Alabama, in the early hours of June 28, 1953. There was no eyewitnesses to the accident except the drivers of two cars, both of whom were killed, and Ruby Gibson (appellant) who was riding as a guest in the Buick car driven by Josephus Perry.
We set out the pertinent part of § 433, Title 7, Code of 1940, as follows:
The question here is whether Ruby Gibson, who was the only survivor of the accident, can testify as to the facts involved in the collision in which both drivers were killed. To put it another way, does the testimony sought to be introduced fall within the category of testimony "as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding?"
In Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63, 64, this court held that the plaintiff in an automobile accident could not testify as to the conduct of the defendant's deceased agent, who was the driver of defendant's car. This case in effect held that an automobile accident could be a transaction within the purview of the statute. Undoubtedly the ruling of the lower court was strongly influenced by this decision. In view of the importance of this decision, we quote from it as follows:
Without question Ruby Gibson has a pecuniary interest in the result of this suit and it is obvious that the estate of the deceased Howard Wallace Fortenberry has a pecuniary interest in the result of this suit. The only question is whether the testimony sought to be admitted shows a transaction with the deceased within the meaning of the statute. Upon a careful consideration, we have reached the conclusion that Southern Natural Gas Co. v. Davidson, supra, is not a controlling authority here. The facts in the Davidson case differ in a vital respect from the facts in the case at bar. In the Davidson case the plaintiff was the operator of the car which collided with the automobile driven by the deceased agent of the defendant. In other words, in the Davidson case the facts showed an action *682 mutually participated in by the witness and the decedent. The facts in the Davidson case show what has been termed "personal" dealings between the witness and the decedent. This is not the situation in the case at bar.
The automobile in which Ruby Gibson was riding was being operated by a third person, one Josephus Perry, deceased. He was not driving this automobile as the servant, agent or employee of Ruby Gibson. She had no supervision or control over what he did or failed to do in the operation of this car. Under these circumstances, even if Josephus Perry was guilty of any negligence, such negligence could not be attributed to Ruby Gibson. She was not occupying the automobile driven by defendant's intestate, Howard Wallace Fortenberry, nor was he driving his car as her servant, agent or employee and it was not being operated under her supervision or control. In short, she was free from any fault in connection with this accident. She was innocent of the result which took place outside of her control. She took no part in the occurrence other than to be present in the car of Josephus Perry when the collision occurred. She was more or less an observer of the accident and had no dealings with defendant's intestate pertaining to any phase of this accident. She did not mutually participate in it with him. He made no statements to her and she made no statements to him about anything pertaining to the accident. Ruby Gibson endeavored to testify to facts and circumstances regarding this accident within her own observation and knowledge. She attempted to state to the court what she saw take place between the car driven by defendant's intestate and a third party. This testimony the court refused to allow her to give. Suppose Ruby Gibson had been standing on the sidewalk at the time of the collision and was injured by reason of the collision. Could it be said that by reason of the statute she was barred from giving her version of the circumstances and details of the accident as she saw them? Plainly we think that she was not so barred. If this is true, what is the difference between a situation where she received injuries on the sidewalk and a situation where she received injuries simply riding in the car driven by Josephus Perry involved in an accident, as in the case at bar? It seems to us that there can be no valid distinction between the two situations and that the view here expressed is supported not only by the Alabama authorities which have construed the Alabama statute but by authorities from other jurisdictions.
It will be noted that in the case of Southern Natural Gas Co. v. Davidson, supra, this court in referring to the conduct of Ed Green stated that such conduct was in the nature of personal dealings with the plaintiff under the rule and constituted a transaction within the meaning of our statute.
One of the leading Alabama cases on the subject is Warten v. Black, 195 Ala. 93, 70 So. 758, 760, where Justice Sayre in the course of his opinion quoted from the New York case of Holcomb v. Holcomb, 95 N.Y. 316, 325, as follows:
In Borum v. Bell, 132 Ala. 85, 31 So. 454, the principle is laid down that a witness interested in the result of a suit or proceeding, though incompetent to testify as to any transaction with deceased, may testify to any matter of fact coming to his knowledge in any other way than through personal dealing with the deceased. This opinion laid down the very important *683 principle that the term "transaction" refers to an action mutually participated in by the witness and decedent.
In Moore v. Moore, 212 Ala. 685, 103 So. 892, 893, this court said:
In Warner v. Warner, 248 Ala. 556, 28 So. 2d 701, 702, the rule was reaffirmed that the statutory rule disqualifying a witness who is interested in the result of a suit from testifying to facts coming to his knowledge through personal dealings with decedent whose estate is affected by the issue, is limited to personal dealings in which both parties participated.
The above cited cases show that while the word "personal" does not appear in § 433, Title 7, Code of 1940, the statute has been construed by the Supreme Court of Alabama to require that the transaction sought to be excluded must be a personal one. As shown by the facts which we have recited above, how can it be said that the transaction between Ruby Gibson and Howard Wallace Fortenberry, was a personal transaction? Obviously it could not be so.
In the case of Seligman v. Orth, 205 Wis. 199, 236 N.W. 115, 117, the court said:
We now refer to a case which appears to be similar to the case of Ruby Gibson. In the case of Krantz v. Krantz, 211 Wis. 249, 248 N.W. 155, 157, there was an action by Ernest Krantz against Edith Krantz, administratrix of the estate of John Krantz, deceased. It was an action to recover damages for personal injuries sustained as a result of the negligence of John Krantz, deceased, in operating an automobile in which plaintiff was riding as a guest. We quote from that case as follows:
It will be noted from the last cited authority that under the Wisconsin Statute the prohibition is that the witness "shall not testify `in respect to any transaction or communication by him personally with the deceased or insane person.'" The word "personally" is emphasized in the opinion, but as we have pointed out while the word personally is not in the Alabama Statute the Alabama Statute has been construed to mean a transaction which the witness has had personally with a deceased person. 70 C.J., § 398. See also Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96.
Under the principle and the authorities which we have cited, we have concluded that the court should have allowed the proffered testimony.
In view of the conclusion which has been reached it is unnecessary to consider other matters assigned as error since such other matters may not come up on another trial.
Reversed and remanded.
LAWSON, MERRILL and SPANN, JJ., concur. | November 1, 1956 |
38ad7237-d1b8-4c52-816a-96b0b4524184 | Lovelace v. McMillan | 90 So. 2d 822 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 822 (1956)
Henry LOVELACE
v.
Iva Lee McMILLAN and Ed Leigh McMillan.
3 Div. 738.
Supreme Court of Alabama.
November 15, 1956.
Howard J. Kearley, Brewton, for appellant.
Caffey, Gallalee & Caffey, Mobile, for appellees.
SPANN, Justice.
This is an appeal from a final decree in equity reforming a deed executed by appellees to appellant on the ground of mutual mistake. The deed was one of bargain and sale, and the reformation decreed was to reserve in the grantors (appellees) "the oil, gas and minerals therein, thereunder or thereon, with the right to develop same."
The sole question presented is whether the evidence was sufficient to sustain the finding below granting the reformation. We hold that it was, guided by the well known and oft repeated rule of review that a strong presumption is indulged in favor of the finding of the trial judge on evidence taken ore tenus before him; and his conclusion will not be disturbed unless clearly wrong and unjust. Morrison *823 v. State, 251 Ala. 289, 37 So. 2d 196; Aiken v. Barnes, 247 Ala. 657, 25 So. 2d 849; Tsimpides v. Tsimpides, 241 Ala. 46, 1 So. 2d 17.
The rule in Alabama with respect to the burden and extent of proof in a suit to reform a deed on the ground of mutual mistake is that the party seeking reformation must show a mutual mistake by evidence that is clear, satisfactory and convincing, and that the intention and agreement he would substitute in the instrument was that of both parties to such instrument. Clipper v. Gordon, 253 Ala. 428, 44 So. 2d 576; Ballentine v. Bradley, 238 Ala. 446, 191 So. 618.
The evidence on which reformation was decreed was given by appellee Ed Leigh McMillan and his secretary, Lily Tippins. This evidence tended to show that appellee McMillan and appellant entered into a written contract in March, 1950, to sell the land described in the deed for $400 of which $60 was paid in cash at the time of the execution of the agreement, the balance payable at the rate of $25 per month. Appellant paid out his contract in September, 1951, and was given the deed sought to be reformed. The contract contained the reservation as quoted above, and Mr. McMillan without reading the deed, depending upon his secretary to prepare it according to the terms of the written agreement, executed it and had his wife execute it, and delivered it to appellant not knowing the reservation was not embodied in it. When it was discovered that the reservation was not contained in the deed, he filed the bill for reformation. On this evidence the court decreed the reformation.
Appellant, of course, denied that he was given any written contract or ever signed any with McMillan, but it was within the province of the trial court to determine the verity of this evidence. It might be said with considerable consistency that it would be unlikely that appellant would pay the purchase price of the land without some form of contract or that Mr. McMillan, a lawyer and prominent businessman, would undertake such a transaction without a written contract. We think the court was justified in believing what Mr. McMillan and his secretary testified to and cannot say that the decree below was clearly wrong and unjust.
The judgment of the trial court is due to be and is hereby affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur. | November 15, 1956 |
f71996aa-953f-4bc1-a568-2d0e1ef0fcdd | First National Bank of Mobile v. Bailes | 306 So. 2d 227 | N/A | Alabama | Alabama Supreme Court | 306 So. 2d 227 (1975)
FIRST NATIONAL BANK OF MOBILE, a National Bank and Body Corporate,
v.
George Lewis BAILES, Jr., as trustee, etc., et al.
SC 665.
Supreme Court of Alabama.
January 9, 1975.
T. Massey Bedsole and Louis E. Braswell, Mobile, for appellant.
*228 I. David Cherniak, Mobile, and R. Clifford Fulford, Birmingham, for appellees.
BLOODWORTH, Justice.
This is a second appeal in this case. For our decision on the first appeal, see Bailes v. First National Bank of Mobile, 291 Ala. 385, 281 So. 2d 632 (1973).[1]
On the first trial, the trial court rendered judgment for defendant, First National Bank of Mobile. Plaintiff, George Lewis Bailes, as Trustee in Bankruptcy of American Southern Publishing Company, Inc., a bankrupt, appealed. On July 5, 1973, this Court, in the former opinion authored by Mr. Justice Faulkner, reversed and remanded the cause.
On the second trial, the First National Bank of Mobile offered new evidence on several of the points spoken to by this Court in its first opinion. The case was again submitted to the trial judge on the new evidence and the record of all prior proceedings. The trial judge obviously concluded that the new evidence did not alter the mandate of this Court's former opinion, and, accordingly, rendered judgment for Bailes, the Trustee in Bankruptcy. It is from that judgment that First National Bank of Mobile appeals. We affirm.
Under the provisions of Tit. 13, § 28, Code of Alabama 1940 (Recompiled 1958), we have held that:
This cause arose out of the following circumstances.
On October 7, 1966, the American Southern Publishing Company, Inc. (hereinafter called "Bankrupt") filed a voluntary petition in bankruptcy. Appellee George Lewis Bailes, Jr., (hereinafter called "Trustee") became its receiver and later its trustee. A substantial part of Bankrupt's assets consisted of a large quantity of school textbooks stored on the premises of the Publishers Warehouse Division of EBSCO Investment Services, Inc. (hereinafter called "EBSCO"). The First National Bank of Mobile (hereinafter called "Bank") claims these books[2] as collateral security for a series of ten notes executed by the Bankrupt in favor of the Bank between August 22, 1966, and September 30, 1966.
As of the date of bankruptcy, a trustee in bankruptcy acquires the same rights in the bankrupt's property as those held by a judgment lien creditor under state law. Bankruptcy Act, § 70(c), 11 U. S.C. § 110(c). Therefore, the issue presented is whether, or not, the Bank, as of October 7, 1966, had taken those steps necessary to protect its claimed interest in the books or their proceeds from a judgment lien creditor.
The Bank contends that, by the various agreements between it, the Bankrupt, and EBSCO, a valid common-law pledge was created.[3]
*229 The evidence is largely, if not entirely, undisputed. The real dispute concerns the legal conclusions to be drawn therefrom.
The Bankrupt had entered into contracts with the State of Alabama to supply state schools with certain designated textbooks at an established price per book. The quantity of books was not specified, but the contracts required Bankrupt to have sufficient textbooks on hand to fill the State's orders within thirty days. The Bankrupt placed in the EBSCO warehouse a sufficient quantity of books to handle the orders of all its customers including the State. Seventy percent of Bankrupt's business consisted of contracts with the State. In its contract with Bankrupt, EBSCO agreed to carry out, as agent, the Bankrupt's contracts with the State and others. EBSCO had deposited with it the books of other publishers under similar contracts.
In the normal course of business, the State submitted purchase orders to EBSCO who forwarded the orders to Bankrupt. EBSCO would then ship the books. Upon confirmation of delivery, the State would make payment.
In April 1966, Bank and Bankrupt began working on plans to finance Bankrupt's operations. It appears to have been contemplated by the parties that loans made by the Bank would largely be repaid with the proceeds of the Bankrupt's state contracts.
On April 7, 1966, the Bank asked that invoices which the Bankrupt would submit to the State be marked to show that they had been assigned by Bankrupt to the Bank and to show that the Bank had been authorized to receive payment directly from the State.
On June 24, 1966, the Bankrupt informed the Bank that it was assigning to the Bank the proceeds of certain of its contracts with the State. On that same date, the Bankrupt wrote the State authorizing the State to mail all state checks payable to Bankrupt to the Bank to be credited to an escrow account in the name of Bankrupt.
On June 25, 1966, the Bankrupt sent the Bank a certified inventory of its books on deposit with EBSCO as of March 31, 1966. Although the parties often referred to this inventory as a "warehouse receipt," it did not comply with the statutory requirements for such a document.
For some reason, this letter was not received until a month later, although on July 21, 1966, when the Bank wrote EBSCO another letter, it quoted the above letter verbatim. The Bank also told EBSCO:
On July 19, 1966, the Bank was added as a loss payee to the Bankrupt's fire insurance policy.
By letter of August 15, 1966, the Bankrupt requested the State to make its payment warrants "payable to the First National *230 Bank of Mobile, Alabama and the American Southern Publishing Company Escrow Account." The State agreed to comply with this request.
EBSCO wrote the Bank on August 19, 1966, inter alia:
Thereafter, the Bankrupt executed promissory notes payable to the Bank dated August 22, 26, 31, September 1, 2, 8, 14, 20, 27, and 30, 1966. The principal amount of these notes is in excess of $100,000.00. Each note contained the following printed words:
Six of the notes contained the following typed words in the above blank space:
The note dated September 20, 1966,[4] contains the following typed words in the blank:
The two notes dated August 31, 1966, originally contained these typed words:
The note executed September 1, 1966, also contained this same wording. The Bank then wrote Bankrupt that it would like to have the typed-in wording in future notes to read:
and that it had "* * * taken the liberty of inserting into these notes [August 31, 1966] assignment of these books." The September 1, note was changed to read:
Attached to all the notes, except the one executed September 20, 1966, is EBSCO's certified inventory dated June 24, 1966.
EBSCO apparently became dissatisfied with the burden placed upon it to seek the Bank's approval (pursuant to its August 19 letter) for numerous small orders. Consequently, the Bank, Bankrupt, and EBSCO signed on September 12, 1966 the following "tri-partite" agreement, as suggested by the Bank, viz.:
"The procedure will be as follows:
"Page 2
"September 12, 1966
On the first appeal, three justices joined Justice Faulkner (the author) in holding:
Of course under our statute and the rule of our cases, this did not constitute a holding of the Court. See: Phoenix Insurance Company v. Stuart, 289 Ala. 657, 270 So. 2d 792; Tit. 13, § 14, Code 1940, as last amended.
The main complaint of the Bank, on this appeal, is that the first opinion fails to distinguish between a pledge in which the personal property remains on the pledgor's premises and a pledge wherein the personal property remains in the hands of a person who is neither the pledgor nor pledgee.
The Bank contends the following rules are applicable to its financing arrangement in this case:
"§ 8. CHATTEL IN POSSESSION OF THIRD PERSON.
"Comment:
"Illustrations:
"§ 11. RETURN OF CHATTEL TO PLEDGOR.
The Bank further contends that the right in a debtor to sell pledged collateral in the ordinary course of his business but with the creditor's prior approval does not invalidate a pledge so long as the proceeds are applied to payment of the debt, citing: Harrison v. Merchants National Bank, 124 F.2d 871 (8th Cir. 1942).
At the second trial, the Bank, in answer to statements made in this Court's first opinion, sought to show that its claimed "pledge" could be foreclosed under the provision of Tit. 9, §§ 9-12, Code of Alabama 1940 (Recompiled 1958), which provide upon default for sale of pledged property at public outcry. The Bank also offered "new evidence" of its claimed dominion and control of the books when the EBSCO warehouse manager testified that, by computer print out, the quantities and titles of books held by EBSCO in its warehouse for Bankrupt could have been determined and that had Bankrupt sought to remove the books from the warehouse he would not have allowed it to do so.
Although the authorities offered by the Bank do persuade us that a pledge valid against a lien creditor might have been created in the situation in which the parties found themselves in this case, after carefully considering both the "old" evidence and the "new" evidence, we remain unconvinced that the parties ever really intended to create a "pledge" of the books. Or, if they did, that they effectually carried out such intention.
It is apparent to us that the principal concern of the Bank was to secure the proceeds from the Bankrupt's state school textbook contracts. In the financing arrangements it made, the Bank does not appear to have been interested in preserving the books at the EBSCO warehouse in order that it might foreclose and sell the books at public outcry. To the contrary, every step taken by the Bank appears to us to have been for the purpose of insuring that the Bankrupt would perform its state contracts (contracts which only the Bankrupt *233 itself could perform and which required the agency of EBSCO to effect) and that the State's payments would be made directly to the Bank. While the Bankrupt could not "assign" its contracts with the State, i. e., delegate its duty to perform, the Bankrupt could assign its right to payment. In other words, the books were of little value without the state contracts which only the Bankrupt could perform. If the Bank had "bought in" the books on foreclosure of its claimed "pledge," it could not have sold them to the State under the Bankrupt's contracts.
We are not unmindful of the fact that some of the form notes signed by Bankrupt use words of "pledge" with regard to the books. However, other notes speak of "assignment of invoice," "reference to escrow account procedure," and "Publisher's Warehouse * * * receipt dated June 24, 1966." When all the notes are considered together along with the "tri-partite" agreement, the parties' other correspondence, and their actions, we must conclude there was no valid pledge of the books created sufficient to defeat the Trustee's standing as a judgment lien creditor. At most, we would have to conclude that an assignment of Bankrupt's right to receive payment from the State on its contracts was effected by the parties.
The Alabama Accounts Receivable Act defines an account receivable as including "* * * a right to sums * * * to become due on * * * contracts." Tit. 39, § 207, Code of Alabama 1940 (Recompiled 1958). Under the Act, an assignment, to be valid against creditors of the assignor, must be in writing, made for value, and a "Statement of Assignment of Accounts Receivable" filed with the probate judge. Tit. 39, § 209, Code of Alabama 1940 (Recompiled 1958). The Bank did not file the required statement. Filing is declared by the act to be the exclusive method by which an assignee can perfect an interest in an account receivable against creditors of the assignor. Notification of the account debtor (the State), as was done in the instant case, is not sufficient for perfection. Tit. 39, § 213, Code of Alabama 1940 (Recompiled 1958).
It is thus that we hold: (1) that there was no "pledge" of the books by the Bankrupt to the Bank and, therefore, as of the date of bankruptcy, the Trustee was entitled to the books free from any priority claim by the Bank; (2) that the Bankrupt made an assignment to the Bank of the Bankrupt's right to payment from the State which assignment, as of the date of bankruptcy was unrecorded and, hence invalid as to the Trustee in Bankruptcy, thereby entitling the Trustee to the entire sales proceeds of the books.
The judgment of the trial court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, COLEMAN, HARWOOD, MADDOX, FAULKNER and JONES, JJ., concur.
[1] For the related federal case, see In re American Southern Publishing Company, 5 Cir., 426 F.2d 160 (1970), cert. den., Bailes v. First Nat. Bank, 400 U.S. 903, 91 S. Ct. 141, 27 L. Ed. 2d 140 (1970).
[2] To preserve the Bankrupt's estate and by agreement of the parties, the books were sold in the Bankrupt's normal course of business and the proceeds deposited at interest in an escrow account.
[3] The Uniform Commercial Code did not become effective in Alabama until midnight, December 31, 1966. Act No. 549, Acts of Alabama Regular Session 1965.
[4] The Bank does not claim the amount of this note. | January 9, 1975 |
77e93d12-2f80-47bb-b25a-e9c171cbf4c8 | Conner v. Willet | 91 So. 2d 225 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 225 (1956)
Lela Ard CONNER
v.
Edmund R. WILLET and Virginia Willet.
4 Div. 894.
Supreme Court of Alabama.
November 29, 1956.
*226 Reid & Enzor, Andalusia, for appellant.
Brooks & Garrett, Brewton, for appellees.
MERRILL, Justice.
Appellant filed suit against appellees, who were nonresidents of the State of Alabama, in the Circuit Court of Covington County on March 27, 1956, claiming damages for personal injuries sustained in an automobile accident in Conecuh County. Personal service was perfected on each of the appellees by the Sheriff of Escambia County on March 29, 1956. Within 30 days, the appellees filed a joint plea in abatement averring in substance that the Circuit Court of Covington County was without jurisdiction of the cause of action in that the defendants, appellees, were nonresidents of the State of Alabama, and the injury complained of occurred in Conecuh County.
Appellant filed a demurrer to the plea in abatement which was overruled. Thereupon appellant took a non-suit because of the adverse ruling on the demurrer. The judgment of non-suit is legally sufficient to support an appeal and appellant has appealed from the judgment of the circuit court.
The sole question presented is whether or not a suit for personal injuries may be maintained against a nonresident defendant in a county other than the county in which the cause of action arose, the defendant having been personally served with process while within this state; or, to put it another way, did the Supreme Court of the United States in the case of Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S. Ct. 678, 71 L. Ed. 1165, decided in 1927, overrule the case of Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 So. 126, 127, decided in 1916? The trial court adjudged that it did, saying in his written opinion, after discussing both cases, "This case (the Power case), as we view it, overrules the constitutional aspect of the Alabama case wherein Justice Sayre said that due process and equal protection are satisfied by any practice having sanction of common law usage".
We first consider our case, Jefferson County Savings Bank v. Carland, supra. There the Bank sued defendant Carland and others in Jefferson County. The defendants were nonresidents, their place of residence being in the State of Ohio. Process was served on them in Cullman County. They pleaded in abatement that they were subject to suit in this state only in the county in which they were found. We quote from the opinion of the court written by Sayre, J.:
This was the rule at common-law and the rule has been followed by the courts of several other states. See Zouck v. Zouck, 204 Md. 285, 104 A.2d 573, 105 A.2d 214; Alcarese v. Stinger, 197 Md. 236, 78 A.2d 651; State ex rel. Appelby v. District Court, 46 N.M. 376, 129 P.2d 338; Courtney v. Meyer, 202 S.C. 437, 25 S.E.2d 481.
There was no question of the constitutionality of such procedure as to nonresidents until the decision in Power Manufacturing Co. v. Saunders, supra.
The facts in the Power case were that Saunders and the company were nonresidents of Arkansas. The company had qualified to do business in Arkansas and maintained a warehouse at Stuttgart, which city was designated as its principal place of business, its agent for process resided there, and the company did no business anywhere else in Arkansas. Saunders was injured while working in the warehouse at Stuttgart, and he sued the company in a county other than the one in which Stuttgart is located.
The Arkansas statutes required actions of this character, if against a domestic corporation, to be brought in a county where it has a place of business or in which its chief officer resides, but if against a foreign corporation, to be brought in any county in the state. The company contended that this statute was unconstitutional because it was in conflict with the equal protection clause of the 14th Amendment to the Constitution of the United States. The Supreme Court of the United States, Justices Holmes and Brandeis dissenting, upheld this contention and said in part [274 U.S. 490, 47 S.Ct. 680]:
The Power case has been held to preclude any distinction at all between residents and nonresidents as far as venue is concerned. See Henry Fisher Packing Co. v. Mattox, 262 Ky. 318, 90 S.W.2d 70.
We do not think the Power case has the effect of overruling Jefferson County Savings Bank v. Carland, supra. The Power case deals with a foreign corporation. Our Constitution, § 232, and Tit. 7, § 60, Code of 1940, deal with venue of actions against foreign corporations. Tit. 7, § 60, also deals with venue of actions against domestic corporations and there is a distinction made as to the venue of personal injury actions against domestic and foreign corporations, but it has not been held that such distinction is unconstitutional.
Our venue statute here controlling is Tit. 7, § 54, which provides in pertinent part as follows:
Under this statute a plaintiff has the choice of filing his suit for personal injuries in either the county where the defendant resides, or in the county where the injury occurred. But one cannot sue a nonresident in the county in which he resides because there is no such locality in this state. If we limit the plaintiff to suing the nonresident in the county where the injury occurred, we are discriminating against our own residents. It seems to us that the nonresident natural person, in a situation such as this, has equal protection of the laws when he can be sued in any county in this state.
We think our statement quoted from the Carland case, supra, is sound and is not in conflict with the holding in the Power case. In addition to reaffirming the holding in the Carland case, supra, we think the language of the Supreme Court in Cincinnati Street Railway Co. v. Snell, 193 U.S. 30, 24 S. Ct. 319, 321, 48 L. Ed. 604, is applicable here. The court said:
We hold that there is no arbitrary discrimination against the defendants in the instant case, but that any difference between the venue of suits against residents and nonresidents is based on real and substantial grounds. The court below erred in overruling the demurrer to the plea in abatement.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | November 29, 1956 |
439c48e6-a2b8-4b9a-a66e-6fe34625aa49 | Ex Parte National Association for Advancement of Colored People | 91 So. 2d 220 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 220 (1956)
Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation.
In re: STATE of Alabama, ex rel. John PATTERSON, Atty. Gen.,
v.
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE.
3 Div. 772.
Supreme Court of Alabama.
July 31, 1956.
Rehearing Denied December 6, 1956.
Arthur D. Shores, Birmingham, Fred D. Gray, Montgomery, and Robt. L. Carter, New York City, for petitioner.
John Patterson, Atty. Gen., for respondent.
*221 PER CURIAM.
It is the established rule of this Court that the proper method of reviewing a judgment for civil contempt of the kind here involved is by a petition for common law writ of certiorari, and this Court has through the years felt impelled to grant the writ for the purposes of review where a reasonable ground for its issuance is properly presented in such petition.
But the petitioner here has not applied for writ of certiorari, and we do not feel that the petition presently before us warrants our interference with the judgment of the Circuit Court of Montgomery County here sought to be stayed.
Petition denied.
LIVINGSTON, C. J., and LAWSON, STAKELY, MERRILL and SPANN, JJ., concur. | July 31, 1956 |
4d3e3c04-dab2-42fa-9238-cf33f52c22b2 | Gross v. Gross | 89 So. 2d 737 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 737 (1956)
Vernie Mae GROSS
v.
William Wallace GROSS.
1 Div. 675.
Supreme Court of Alabama.
September 13, 1956.
Mylan R. Engel and Mitchell Lattof, Mobile, for appellant.
Chason & Stone, Bay Minette, for appellee.
PER CURIAM.
This is an appeal by complainant (the wife) in a divorce suit by her against her husband (appellee) from a final decree granting a divorce to the husband on his cross bill alleging voluntary abandonment from bed and board for one year next preceding the filing of the bill of complaint, but awarding alimony to appellant.
Appellant complains that the decree granting a divorce to appellee on the ground of voluntary abandonment for one year next preceding the filing of the bill was not sustained by any aspect of the evidence. If so, there was error in so rendering it, although the evidence was taken orally before the trial judge.
The burden is upon appellee to prove such allegation in his cross bill. He did so testify in terms, as did some of their children. But all the evidence is consistent with the theory that the only abandonment consisted in removing to a different room in the same house and failure to discharge marital duties as a wife and housekeeper. In fact, it is noticeable that there is an entire absence of evidence that the abandonment did not consist wholly in such failure without a removal by either from the home which they occupied. Since the burden is on appellee, the presumptions arising from an absence of evidence are against him. He must prove those facts which constitute a voluntary abandonment as it is interpreted by this Court. It has been held by this Court that voluntary abandonment by the wife of the husband is not shown to exist when the "conduct on her part which he contends was an abandonment of him by her was her moving into another bedroom in the home * * *, which she continued to occupy and the refusal of sexual relations from that time until the present". Caine v. Caine, 262 Ala. 454, 79 So. 2d 546, 547. The fact that she did not attend to other duties of a housewife would not serve to create a different result in that respect.
The same principle has been applied to that feature of section 22, Title 34, Code, which provides for a right to a divorce "when the wife has lived, or shall have lived separate and apart from the bed and *738 board of the husband for two years and without support from him for two years next preceding the filing of the bill". Rogers v. Rogers, 258 Ala. 477, 63 So. 2d 807. We have said that to constitute voluntary abandonment, "`there must be a final departure, without the consent of the other party, without sufficient reason therefor, and without the intention to return.'" Perry v. Perry, 230 Ala. 502, 162 So. 101; Nelson v. Nelson, 244 Ala. 421, 14 So. 2d 155; Webb v. Webb, 260 Ala. 426, 70 So. 2d 639; Watkins v. Kidd, 261 Ala. 463, 75 So. 2d 87.
The evidence shows that the parties had "ups and downs," as expressed by the witnesses, and did much fussing and had many contentions of various kinds. But all the indications are that they have lived in the same house, though in different rooms, until the 10th of April 1956. There is no voluntary abandonment while husband and wife occupy the same dwelling.
The decree denied a divorce to the wife (appellant) on the ground of cruelty. That is also assigned as error. We think the decree was erroneous in granting a divorce to appellee on the ground of voluntary abandonment. We prefer not to express an opinion as to the claim of appellant for a divorce on the ground of cruelty since the decree should be reversed. We think it should be reversed in all its parts and remanded for a new trial on both the original and cross bill. That also includes the award of alimony.
There is attached to the brief filed here on behalf of appellant an affidavit made by appellant, which questions the right of the trial judge to preside in this case because of an alleged relationship with the appellee which is within the prohibited degree. Section 6, Title 13, Code of 1940. But this matter was not raised in the trial of the cause and we cannot consider it here. If the averments of the affidavit be true and the matter is called to the attention of the conscientious trial judge on the retrial of this case, we are confident he will not preside at another trial.
It is not necessary to pass on contentions made in respect to the legality of some of the evidence in view of the Act of June 8, 1943, General Acts 1943, page 105: see pocket part Code, Title 7, section 372(1), nor to pass on the contention with respect to the amount of alimony.
The decree should be reversed in all its parts and the cause remanded for another trial.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | September 13, 1956 |
f642a773-06c7-4c5d-bd11-c501653b646a | Schenher v. State | 90 So. 2d 238 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 238 (1956)
George SCHENHER
v.
STATE.
1 Div. 690.
Supreme Court of Alabama.
November 1, 1956.
John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for petitioner.
Vincent F. Kilborn, Mobile, opposed.
STAKELY, Justice.
Petition of the State, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Schenher v. State, 90 So. 2d 234.
Writ denied.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 1, 1956 |
37e750dc-3b71-4c80-a1a3-6fbcedce149b | Scott v. Scott | 90 So. 2d 813 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 813 (1956)
James Edwin SCOTT
v.
Emily V. SCOTT.
5 Div. 603.
Supreme Court of Alabama.
November 15, 1956.
Harry D. Raymon, Tuskegee, for appellant.
Russell & Russell, Tuskegee, for appellee.
PER CURIAM.
This is an appeal from a final decree in equity which denied the relief sought in a bill whose object was to modify a former decree of divorce to the extent that it granted a monthly allowance and provided for the custody of the minor child. The former decree of the court was dated March 20, 1952. It granted the divorce and directed the payment by this appellant of $80.00 a month for the support of their child, and awarded appellee the custody of said minor, a boy then eight years of age.
The boy resides with his mother, appellee, in Hot Springs, Arkansas, where he is attending school. Appellant, under the terms of the decree, was given the privilege of visiting the child but is unable to do so. He now seeks to have the child visit him during vacation, but appellee refuses to allow such visitation. The petition alleges that appellant has married again (has two children) and has a good home; and that the amount of $80 a month has been regularly paid up to the time of *814 filing the petition. That at the time of the divorce petitioner was engaged in the trucking business and had no established home; but that he has become engaged in business (a service station) in Tuskegee, and has an established home suitable for his child to visit; and, further, that appellee has threatened him if he visits the child in Hot Springs. That under the present court orders there can be no companionship between him and the child. That his income is approximately $200 a month, and that said allowance of $80 per month is excessive and should be reduced to conform to his income. Petitioner ceased paying anything as support money when this petition was filed and has paid nothing since then.
The trial was had on evidence taken before the trial judge. He made a finding of facts that the child has a "cleft palate" and a "cardiac condition"; that the mother "could look after a child like that better than anybody else in the world"; that he is too young to have the custody split at this time, "and that nothing has arisen to change the provisions of the former decree of this court relative to custody; that no circumstances have changed which would authorize the changing of this decree. Now, I can understand that the time will come when that will not be true. He probably ought to be brought out here where his father can see him and be with him". The court referred to the fact that appellant has not paid anything for the child's support since this petition was filed, and that he is probably not able to pay $80 a month. The court further noted there was nothing before it on account of petitioner's failure to pay anything during that time, and that the court could take no action in that respect, stating "the court will just say that the prayer of the petition in this case as amended is denied, and that disposes of the case". A final decree to that effect was then rendered. An appeal was promptly taken upon giving security for the costs of appeal.
Appellee has called our attention to the case of Hayes v. Hayes, 192 Ala. 280, 68 So. 351, holding that when a divorce is granted and the custody of a minor child is awarded in the decree, and an order is made at a subsequent term of court changing the custody of the child, the remedy of the aggrieved party is by mandamus and not by appeal.
In the case of Buttrey v. Buttrey, 214 Ala. 465, 108 So. 35, the question was whether an appeal would lie from a decree modifying a permanent allowance made for the child in a former decree of divorce after the term had expired. The court, following the Hayes case, supra, held that such a decree of modification is not a final decree but is of an interlocutory character from which no appeal is provided. The same question was involved in Smith v. Smith, 218 Ala. 701, 120 So. 167. The court in its original opinion followed the Buttrey and Hayes cases.
Those authorities show that the court does not distinguish provisions for custody of children from those for maintenance in respect to a modification of such decrees. On rehearing in the Smith case, supra, the court referred to Morgan v. Morgan, 211 Ala. 7, 99 So. 185, as holding contrary to Buttrey v. Buttrey and other cases supra, and established the principle that an appeal will lie from such a decree. The court has continued to apply that principle. Aiken v. Aiken, 221 Ala. 67, 127 So. 819; Worthington v. Worthington, 224 Ala. 237, 139 So. 334; Northcutt v. Northcutt, 262 Ala. 98, 77 So. 2d 336. Those cases served to change the rule declared in the Hayes case, supra, as to an appeal in cases involving the custody of children as well as cases involving only alimony and support allowance. The principle is the same. The appeal was properly taken and, therefore, it is our duty to review the merits of the final decree rendered in this case.
The indication is that the failure of petitioner to pay anything since the filing of *815 the petition was influential in inducing a refusal to modify the allowance. The judge stated: "The petitioner in this proceeding is not in much shape to be asking for anything along that line when he hasn't done anything in ten months. The court thinks he could have done something. He didn't do anything. I can sympathize with the fact that he is probably not able to pay $80.00 a month, but he could have let the court know that a long time ago." The attention of the judge was then called to the fact that he had paid the installments in full up to the time of filing this petition (which is for the very purpose of letting the court know). To this the judge replied that he is eight or ten months behind (during the pendency of this petition), and that "there is no petition before this court for his failure to pay that, and the court can't take any action along that line now." Therefore he denied all relief.
It is here observed that at the time this divorce decree was rendered appellant made a deed to appellee of their home in Tuskegee, from which she was receiving $35 a month as rent at the time this suit was tried. Appellee and the boy live with her sister in Hot Springs, Arkansas, and help maintain a tourist court. They are well situated there.
We cannot agree with the trial judge that all relief should be denied as to the allowance because of petitioner's failure to pay installments which matured pending this petition. The effect of the decree rendered in this proceeding is to allow the amount of $80 a month to remain fixed, and payments to continue at that rate until there is a change of conditions occurring thereafter which are sufficient to support a new proceeding to modify. Under our cases installments which mature before a petition to modify is filed are immune from change. Epps v. Epps, 218 Ala. 667, 120 So. 150; Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825; 8 Ala.Dig., Divorce, The principle has been frequently referred to. Ex parte Myers, 246 Ala. 460(6), 21 So. 2d 113. But the installment payments had all been made when this petition to modify was filed. Petitioner's failure to pay the installments, which he seeks to modify and which matured after the petition was filed does not militate against the power of the court to make such modification as changed conditions may justify. We must therefore view the inquiry without being controlled by petitioner's failure to pay the installments which so matured.
The testimony in this case was taken and heard on August 17, 1954 by the presiding judge who rendered the decree. Specialists in orthodontia (correction of irregularities in the teeth of children) wrote a letter to counsel for appellee, dated July 12, 1954, which was introduced in evidence and which explained the condition and needs of the child. It is as follows:
We do not know what treatment has been given as suggested by the dentist in that letter, nor what is the present financial status of the petitioner. The letter was written over two years ago.
This court is of the opinion that the denial of a modification of the decree providing for the support of the child was not controlled by applicable principles, and also there ought to be an inquiry into present conditions which might justify a modification of the order as to the custody of the child so as to allow him to visit his father during school vacations. To obtain any modification, effective as to those installments which have matured since the instant petition was filed, it must be done in this proceeding. We think, therefore, it would be just to retain this cause in court so as to retry that issue.
We think it best to reverse the decree of the trial court and remand the cause for another trial.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code and was adopted by the Court as its opinion.
Reversed and remanded.
SIMPSON, GOODWYN, MERRILL and SPANN, JJ., concur. | November 15, 1956 |
122e64a5-e539-4675-9987-189977fa20e0 | Howard v. Imes | 90 So. 2d 818 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 818 (1956)
Walter L. HOWARD, Jr., as Administrator,
v.
Margaret B. IMES.
6 Div. 861.
Supreme Court of Alabama.
November 15, 1956.
Gillespy, Dominick & Fletcher, Birmingham, for appellant.
Marvin Cherner, Birmingham, for appellee.
GOODWYN, Justice.
The complainant, Birmingham Trust National Bank, having in its possession certain funds claimed by respondent-appellee, Margaret B. Imes, and respondent-appellant, Walter L. Howard, as administrator of the estate of Daisy Marks Hughes, deceased, filed an original bill of interpleader in the Circuit Court of Jefferson County, in Equity, for the purpose of establishing the rightful claimant. Mrs. *819 Imes filed an answer and cross-bill to which Howard, as administrator, demurred. The demurrer being sustained, Mrs. Imes amended her cross-bill. The administrator then demurred to the amended cross-bill. From the decree overruling the demurrer the administrator brought this appeal.
The facts alleged in the amended cross-bill are substantially as follows:
On April 29, 1953, a joint savings account was opened at the Birmingham Trust National Bank in the name of Mrs. Hughes and Mrs. Imes and a deposit of $6,069.12 was then made to the account. All of this money came from Mrs. Hughes' individual account. The signature card provided that the joint account was subject to the order of either depositor, and upon the death of one of the depositors "the balance shall belong to and be subject to the order of the survivor." The pass book covering the account was kept by Mrs. Imes until delivered to the Bank, as hereinafter noted.
Later, on June 16, 1953, Mrs. Hughes was declared mentally incompetent by the probate court of Jefferson County, Alabama, and the Bank was appointed as her guardian. The Bank, as such guardian, requested that Mrs. Imes turn over to it the pass book covering the account. Mrs. Imes complied by mailing the pass book on June 19, 1953. It is alleged that this was done "for the convenience of the said Bank acting in such capacity, intending and understanding that said Bank would apply such part of the proceeds of the said joint savings account as should prove necessary to defray the expenditures made by the said Bank as guardian for the support, maintenance and medical care of Mrs. Hughes, and that the Bank as guardian had no title to the property of the ward and its authority was limited to use the proceeds of the said account for the necessities of the ward."
On June 24, the Bank, acting in its capacity as guardian and being in possession of the pass book, withdrew all funds from the joint account and placed them in a new account in the name of Birmingham Trust National Bank as guardian of the estate of Daisy Marks Hughes, non compos mentis. The transfer was made without the knowledge of Mrs. Imes, and, of course, Mrs. Hughes, having been declared incompetent, could not consent to the transfer.
On July 10, 1953, Mrs. Hughes died intestate. Walter L. Howard, Jr., was appointed administrator of her estate. After Mrs. Hughes' death the funds remaining in the account were claimed by Mrs. Imes, as survivor under the joint savings account, and by Mr. Howard, as administrator. To resolve these conflicting claims the Bank then filed its bill of interpleader in this cause.
The question presented on this appeal is whether the act of withdrawal by the Bank, as guardian, of all the funds in the joint account had the effect of destroying Mrs. Imes' survivorship interest in the account. In other words, did the Bank, as guardian, have the power to withdraw all the funds, even though not needed for the care and maintenance of Mrs. Hughes, so as to prevent Mrs. Imes from taking as survivor?
There are no statutory provisions in Alabama prescribing the authority of a guardian in exercising the elective rights of the ward under a joint bank account. Nor have we found any occasion where this court has passed on the question.
It appears to be the generally accepted rule that a guardian cannot exercise a purely personal elective right of his ward. In re Wainman's Estate, 121 Misc. 318, 200 N.Y.S. 893; Chase Nat. Bank of City of New York v. Ginnel, Sup., 50 N.Y.S.2d 345; Application of National Commercial Bank & Trust Co., Sup., 50 N.Y.S.2d 274; Kay v. Erickson, 209 Wis. 147, 244 N.W. 625, 84 A.L.R. 361; Boehmer v. Boehmer, 264 Wis. 15, 58 N.W.2d 411; 44 C.J.S., Insane Persons, § 49, p. 134, where the rule is thus stated:
In applying the rule it has been specifically held that the guardian of a non compos mentis cannot withdraw all the funds in a joint account except for the ward's necessities, since such complete withdrawal would be the exercise of a personal right of the ward. Boehmer v. Boehmer, supra; Coolidge v. Brown, 286 Mass. 504, 190 N.E. 723, 724; Drain v. Brookline Sav. Bank, 327 Mass. 435, 99 N.E.2d 160, 164. (Cf. Kepner, "The Joint and Survivorship Bank AccountA Concept Without A Name" (1953), 41 Cal.L.Rev. 596, pp. 618-619.)
In Boehmer v. Boehmer, supra, the Supreme Court of Wisconsin said [264 Wis. 15, 58 N.W.2d 414]:
In Coolidge v. Brown, supra, and Drain v. Brookline Sav. Bank, supra, the Massachusetts Supreme Court held that the authority of the guardian to use the proceeds of a joint account was limited to the necessities of the ward. The court drew a distinction between withdrawals to provide for the wants of the ward and a withdrawal of all the funds in the account. In Drain v. Brookline Sav. Bank, supra, it was said [327 Mass. 435, 99 N.E.2d 164]:
The rule has also been applied in situations closely analogous to the case at bar. These cases illustrate what the courts have considered personal elective rights.
It has been held, "upon the theory that the right of election under a will is a personal right," that, "in the absence of express statutory authority, the guardian * * * of an incompetent cannot make an election in behalf of the ward to take under or against the will of a deceased person." 25 Am.Jur., Guardian and Ward, § 104, p. 67, and cases cited under Note 5; Annotations, 74 A.L.R. 452 and 147 A.L.R. 337. In Crenshaw v. Carpenter, 69 Ala. 572, 44 Am.Rep. 539, it was held that a widow's right to dissent from the will of her deceased husband is a right strictly personal to the widow and cannot be exercised for an insane widow by her next friend.
It also has been held that "the right of the incompetent to change the beneficiary of a policy upon his own life is personal, and cannot be exercised by a guardian." 25 Am.Jur., Guardian and Ward, § 105, p. 67; Annotations, 21 A.L.R.2d 1191, 84 A.L. R. 361, 366; Kay v. Erickson, supra; In re Wainman's Estate, supra; In re Sellers' Estate, 154 Ohio St. 483, 96 N.E.2d 595, 21 A.L.R.2d 1186.
There are cases holding that a guardian cannot exercise the ward's right of revocation under a revocable trust created by the ward before becoming incompetent. In re Grant's Estate, 122 Misc. 491, 204 N.Y.S. 238; Application of National Commercial Bank & Trust Co., supra; Chase Nat. Bank of City of New York v. Ginnel, supra; Annotation, 138 A.L.R. 1383.
It seems clear that an act which requires the exercise of a personal right of the ward cannot be performed by the guardian. The making of periodic withdrawals for the care and maintenance of the ward would constitute ministerial acts, within the authority of the guardian, but the termination of the joint account and withdrawals of all the funds was a personal right that only Mrs. Hughes could exercise. Coolidge v. Brown, supra; Drain v. Brookline Sav. Bank, supra.
The appellant strongly urges that Mrs. Hughes' interest in the joint account was simply a chose in action or debt owed by the Bank and that it was the duty of the Bank, as guardian, to collect the debts owed its ward. Therefore, the appellant contends, the Bank not only had the authority but was under a duty to withdraw the funds and bring them under its absolute control. It is true that, in general, it is the right and duty of a guardian to collect all assets of the ward; to reduce to possession the ward's choses in action, and collect the debts and obligations due him. Cox v. Williams, 241 Ala. 427, 3 So. 2d 129; Kelly v. Wilson, 234 Ala. 455, 175 So. 551. Here, however, the interest in the funds which Mrs. Hughes chose to reserve to herself was the interest of a joint depositor, and that was the interest she possessed when the Bank became guardian of her estate. It was the right and duty of the Bank to preserve and maintain her interest as it existed when the Bank became guardian. When the Bank obtained the pass book it acquired control of the account and assured the preservation of Mrs. Hughes' interest. However, the Bank did not have the duty nor the right to change the nature of Mrs. Hughes' interest in the *822 funds so as to destroy the interest of the other joint depositor.
No question is here involved as to whether, or to what extent, the probate court or a court of equity, on application of the guardian, can exercise an election on behalf of the ward.
The decree appealed from is due to be affirmed.
Affirmed.
SIMPSON, MERRILL and SPANN, JJ., concur. | November 15, 1956 |
91f61aaf-9028-457e-bb40-4266bb5d5703 | Howle v. Alabama State Milk Control Board | 90 So. 2d 752 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 752 (1956)
Henry W. HOWLE et al., d/b/a Deep South Creamery,
v.
ALABAMA STATE MILK CONTROL BOARD.
3 Div. 720.
Supreme Court of Alabama.
November 15, 1956.
St. John & St. John, Finis E. St. John and Jack Riley, Cullman, for appellants.
Sol E. Brinsfield, Jr., Montgomery, for appellee.
Rushton, Stakely & Johnston, Watkins C. Johnston and Oakley W. Melton, Jr., Montgomery, amici curiae.
*753 LIVINGSTON, Chief Justice.
Appellants filed a bill of complaint in equity in the Circuit Court of Montgomery County, Alabama, under the provisions of Article 12, § 156 et seq., Title 7, Code of Alabama 1940, seeking a declaratory judgment against appellee, Alabama Milk Control Board. Appellee moved to strike the bill of complaint on the grounds that Section 226, Title 22, Code 1940, provides an exclusive method to challenge or review an order, rule or regulation of the Alabama State Milk Control Board, that appellants did not comply with the provisions of this statute, and that this action was barred by the statute of limitations and laches. Appellants moved to strike the motion to dismiss on the grounds that the motion to dismiss for want of equity has been abolished in this state. The motion to strike and the motion to dismiss were heard by the court at the same time, and a decree was entered denying the motion to strike and dismissing the cause.
Appellants have been engaged in business in Cullman, Alabama, since 1949, as milk distributors. They distribute milk, at wholesale and retail, in the territory composed of Cullman, Winston, Walker, Marshall, Morgan, Blount and Marion Counties. Appellee extended its jurisdiction over said territory, with the exception of Marion County, in September 1951. At the time of the extention of the board's jurisdiction, appellants were purchasing their entire supply of milk from producers located within said area, while other distributors in the same area were purchasing substantially their entire supply of milk from producers outside the State of Alabama. On February 18, 1952, appellee promulgated rules of Fair Trade Practices, which permitted distributors to discontinue receiving milk from producers in accordance with a previous continuing course of business, prior to a base-building period, by giving thirty days' notice to said producers and the board. On December 10, 1953, the board amended Rules 9 and 10 of the Fair Trade Practices, so as to provide that no distributor could discontinue the purchase of producer's milk without obtaining the consent of the board upon a petition filed by said distributor. These amendments allowed the board in its discretion to set the petition down for hearing.
On December 28, 1953, in compliance with the amended rules, appellants sent registered letters to the producers, advising them that they intended to discontinue receiving milk from them, and filed a petition with the board for the purpose of obtaining the consent of the board to discontinue receiving milk from said producers. On January 29, 1954, the board, after holding public hearings throughout the state, promulgated Official Order No. 342, which declared that there was a large amount of unmarketed Alabama produced milk within the state, and prohibited distributors from increasing their supply of out-of-state milk while there remained an ample supply within the state.
On February 3, 1954, the petition filed by appellants was returned to appellants, accompanied by a letter signed by the executive secretary of the board, advising appellants that the petition was refused and referring to Official Order No. 342, as stabilizing the situation.
The bill in the present case was filed in the circuit court on the 26th day of April, 1954, seeking permission to import out-of-state milk, and to have Rules 9 and 10 of the Fair Trade Practices, as amended, Official Order No. 342, and the board's order denying appellants' petition, declared invalid and in violation of Sections 205-231, Title 22, Code 1940, and the Constitution of Alabama and of the United States.
The motion to dismiss for want of equity has been abolished and the general demurrer has been substituted therefor. Equity Rule 14, Title 7, Code 1940, Appendix; Porter v. Porter, 258 Ala. 488, 63 So. 2d 804; Edmondson v. Martin, 256 Ala. 73, 53 So. 2d 613; Dancy *754 v. Dancy, 253 Ala. 207, 43 So. 2d 893. However, if there is no equity in a bill, it will be dismissed at the final hearing ex mero motu. Mitchell v. Hammond, 252 Ala. 81, 39 So. 2d 582; Caudle v. Cotton, 234 Ala. 126, 173 So. 847; Elmore County v. Tallapoosa County, 222 Ala. 147, 131 So. 552; Birmingham Interurban Taxicab Service Corp. v. McLendon, 210 Ala. 525, 98 So. 578; Dailey v. Koepple, 164 Ala. 317, 51 So. 348; Jackson v. Knox, 119 Ala. 320, 24 So. 724. In Edmondson v. Martin, supra [256 Ala. 73, 53 So. 2d 615], this court stated:
Section 226, Title 22, Code of Alabama 1940, provides:
The question presented by this appeal is whether or not a person who deems himself aggrieved by any action, order or regulation of the Alabama State Milk Control Board is required to have such order, rule, or regulation reviewed as prescribed by Section 226, supra, or whether he may, by declaratory judgment proceedings, obtain a review of such order, rule, or regulation of the board after the time for such review is barred by the provisions of the aforementioned Code section.
Prior to 1947, our cases were in conflict as to whether or not the existence of another remedy precluded an action for a declaratory judgment. See Donoghue v. Bunkley, 247 Ala. 423, 25 So. 2d 61. However, on October 9, 1947, the legislature amended Section 167, Title 7, Code of Alabama 1940, which now provides:
Since the enactment of the 1947 amendment, this court has held that jurisdiction to grant relief under the Declaratory Judgments Act does not depend on the absence of another adequate remedy. Mooney v. Weaver, 262 Ala. 392, 79 So. 2d 3; Dozier v. Troy Drive In Theatres, *755 Inc., 258 Ala. 417, 63 So. 2d 368; Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509; Brantley v. Flowers, 254 Ala. 448, 48 So. 2d 532. However, an action for a declaratory judgment was never intended to be used as a substitute for an appeal. Ex parte State ex rel. Lawson, 241 Ala. 304, 2 So. 2d 765; Avery Freight Lines, Inc., v. White, 245 Ala. 618, 18 So. 2d 394, 154 A.L.R. 732. In Mitchell v. Hammond, 252 Ala. 81, 39 So. 2d 582, 583, this court stated:
From an examination of the bill of complaint filed in the present case, it is evident that appellants brought this action to have the order of the board reversed, or rescinded, and not to have an official act interpreted. This is not the function of a declaratory judgment, but of an appeal. Mitchell v. Hammond, supra.
After an examination of the statutes, Sections 205-231, Title 22, Code 1940, creating the Milk Control Board, this court finds that it was the manifest purpose and intention of the legislature to make Section 226 of Title 22 the exclusive remedy for the particular type case in hand. When a special statutory procedure has been provided as an exclusive method of review for a particular type case, no other statutory review is available. Donoghue v. Bunkley, supra; Williams v. Tawes, 179 Md. 224, 17 A.2d 137, 132 A.L.R. 1105; Laub v. Wills, 72 Ohio App. 496, 53 N.E.2d 530; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837; 1 Anderson, Actions for Declaratory Judgments (2d Ed. 1951). § 195, p. 403; Borchard, Declaratory Judgments (2d Ed. 1941), p. 342.
Prior to the filing of the present bill, the statute of limitations had run on the special statutory procedure provided for this particular type case. Equity will not afford relief where the corresponding legal right has been barred by the statute of limitations. Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So. 2d 73; Spragins v. McCaleb, 237 Ala. 658, 188 So. 251; Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 94 So. 606; 1 Anderson, Actions for Declaratory Judgments (2d Ed. 1951), § 341, p. 781.
Appellants contend that the case of Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11, is controlling in the present proceeding. In the Graham case, the question that Graham had not used the statutory method of review as provided in Section 226 of Title 22, Code 1940, was not raised by the board, and this court held that a declaratory judgment proceeding was proper to interpret the meaning or test the legality of the action of the board. However, the Graham case is not to be interpreted as inferring that a person affected by any order or act of the board may bring an action for a declaratory judgment in lieu of following the special *756 statutory procedure provided for such a situation.
The bill of the complainant contained no equity that could support a decree. The lower court properly dismissed this bill.
We consider that the judgment of the lower court should be affirmed.
Affirmed.
SIMPSON, GOODWYN and SPANN, JJ., concur. | November 15, 1956 |
190d4043-bc6b-41ea-94f5-d013097c0808 | Davis v. Reid | 88 So. 2d 857 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 857 (1956)
Frances J. DAVIS et al.
v.
Martha Jane REID.
3 Div. 712.
Supreme Court of Alabama.
June 30, 1956.
Edwin C. Page, Jr., Evergreen, and Wm. Hamilton, Greenville, for appellants.
Brooks & Garrett, Brewton, for appellee.
PER CURIAM.
This is an appeal from a decree of the Probate Court of Conecuh County setting apart a homestead and vesting fee simple title in the appellee.
J. A. Reid died in Conecuh County, Alabama, in 1934, leaving surviving him Martha Jane Reid, his widow, and several adult children, but no minor child or children. He owned at the time of his death 120 acres of land in Conecuh County, on which he and his wife lived.
On April 23, 1954, Martha Jane Reid, the widow of J. A. Reid, deceased, filed in the Probate Court of Conecuh County, her *858 application to have set aside to her, as a homestead, the above-mentioned 120 acres of land, alleging that said lands were occupied by her and her husband as a homestead, and were worth less than $2,000, and that said lands were all the lands owned by J. A. Reid at the time of his death; that more than sixty days had elapsed since the death of J. A. Reid, and that there had been no administration of his estate.
Upon the filing of the petition, commissioners were appointed to appraise the real estate left by J. A. Reid, and, if warranted, to set aside a homestead exemption to the petitioner. The commissioners filed a report setting aside the said lands as a homestead to the petitioner, whereupon Frances J. Davis and R. Wesley Reid, grandchildren of the said J. A. Reid, filed exceptions on the ground that the property had a value in excess of the exemption allowed for homesteads. A hearing was held ore tenus before the probate judge, which resulted in a decree confirming the report of the commissioners and setting apart and vesting fee simple title in the petitioner. It is from this decree that the appeal is taken.
Appellant contends that the allegations of the petition were insufficient to invoke the jurisdiction of the court, for that the petition contains no allegation that the personal property owned by petitioner's deceased husband at the time of his death was less in value than the exemption allowed in favor of a widow. This question is raised for the first time on appeal.
The jurisdiction of the probate court to act to set aside homestead exemptions to a widow in the absence of an administration of the estate is statutory and limited, and it must appear from the face of the proceedings that it has acted within the scope of that jurisdiction. Nothing is presumed. The mere exercise of jurisdiction by the court or the existence of jurisdictional facts later appearing in the proceeding without the necessary jurisdictional averments in the petition will not aid the proceeding or give it validity. Walton v. Walton, 256 Ala. 236, 54 So. 2d 498; Carter v. Carter, 251 Ala. 598, 38 So. 2d 557; Craig v. Root, 247 Ala. 479, 25 So. 2d 147; Miller v. Thompson, 209 Ala. 469, 96 So. 481.
The law in force as of the death of the decedent is the law to be complied with as to supplying the jurisdictional facts to be averred and shown. Craig v. Root, supra; Williams v. Overcast, 229 Ala. 119, 155 So. 543.
Section 7948, Code of Alabama 1923, was the law in force as of the death of the decedent. This is now Title 7, § 694, Code of 1940. Section 7948 of the Code of 1923 is as follows:
The exact question here presented has not been decided specifically by this court. There is language in some of our cases which would indicate that the petition must contain an averment that the real and personal property owned by the decedent at the time of his death did not exceed in amount and value the exemption allowed by law. See Hardy v. Morgan, 238 Ala. 251, 189 So. 878; Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105; Alford v. Claborne, 229 Ala. 401, 157 So. 226. There are many other cases where the opinions do not mention the existence or nonexistence of personal property, indicating that it is not necessary to make reference to the personal property in the petition when seeking to set aside the homestead under the statute in question. See Miller v. Thompson, 209 Ala. 469, 96 So. 481; Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113; Williams v. Overcast, 229 Ala. 119, 155 So. 543; Wright v. Fannin, 229 Ala. 278, 156 So. 849; Davis v. Bates, 239 Ala. 214, 194 So. 647.
We have uniformly held that the petition must contain the jurisdictional allegations, but it is an unwelcome duty when we must declare void the proceedings setting aside a homestead for the lack of jurisdictional averments in the widow's petition, because in most cases it means the upsetting of a status quo which has been accepted as legal and correct by all of the affected parties for many years.
In the case of Williams v. Overcast, supra [229 Ala. 119, 155 So. 549], where the question was the validity of the decree of the probate court setting aside the homestead, the court stated the jurisdictional averments necessary in the petition to be: "(1) That the land was the homestead of decedent at the time of his death; (2) that it was the only real estate owned by him; (3) that it was not more than 160 acres in area; (4) and of less than $2,000 in value; and (5) that there was only one minor child who was named in the petition." The next sentence is in part as follows: "The evidence presented by this record shows these jurisdictional facts were averred in the widow's petition as they existed at the time of decedent's death." The court was divided on the question of whether a child, who was a minor at the time of his father's death but was of age when the petition was filed, took his place with the adult heirs, but Justice Thomas states: "The other Justices hold that the petition for setting aside the homestead and proceedings thereunder show no facts or failures rendering the decree of the probate court void as to the widow * * *."
We have examined the petition filed by the widow in Williams v. Overcast, supra, in the original record, and there is no reference whatever to any personal property.
In Wright v. Fannin, supra [229 Ala. 278, 156 So. 851], "the validity of the decree rendered, vesting the title absolutely in the widow, is challenged by the averments of the bill, as to the sufficiency of the widow's petition and averments therein of jurisdictional facts * * *", and the court said:
(It should be noted that Williams v. Overcast, supra, was governed by the law in effect when W. B. Overcast died in 1914, which was prior to the addition to the statute of the requirement that the petition must show the "names, condition, and residence, if known, of the heirs of the decedent." This addition was applicable to Wright v. Fannin, supra, because A. S. Fannin died in 1926, after the addition to the statute. This accounts for the extra jurisdictional averment required in the latter case.)
We have examined the original record in the Wright case and there is no reference therein to personal property, yet, on rehearing this court said, "The petition for homestead by the widow contained all the jurisdictional facts."
In our recent case of Forbes v. Summers, 259 Ala. 271, 66 So. 2d 762, 763, the entire court, as then constituted, had before it the petition of the widow, which is set out in the opinion. There is no reference made as to the amount and value of the personal property in the petition. The opinion begins:
The effect of our holding was that the petition was sufficient to confer jurisdiction on the probate court. Two of the cases relied upon were Williams v. Overcast, supra, and Wright v. Fannin, supra.
In view of these authorities, and feeling that we might disturb titles long since regarded as settled by the parties and the bench and bar generally, should we enunciate a rule to the contrary, we are constrained to hold that the petition in the instant case was sufficient to confer jurisdiction on the probate court.
Appellants' assignments of error numbered 8, 9, 10, 11 and 12 are predicated upon the admission, over appellants' objections, of testimony as to the amounts paid for other lands as evidencing the value of the homestead lands. The objections take the point that no sufficient predicate was laid for the admission of some of the testimony, in that the other lands were not shown to be similar, comparable, or in the same condition, etc., as the lands in litigation; that the sales of the other lands were too remote in point of time, and too far distant from the homestead lands, to be of probative force in fixing the value of the homestead lands.
In the first place, Alabama has adopted the general or majority rule, known as the "Massachusetts Rule," as distinguished from the "Pennsylvania Rule," upon the question of the admissibility of evidence of the sale price of other property in determining the value of real property.
In Waller v. Harris, 221 Ala. 313, 128 So. 606, 607, we said:
In Bynum Brothers v. State, 216 Ala. 102, 112 So. 348, 350, we held that:
Assignments of error 8 and 9 are based on the overruling of appellants' objections to the testimony of witnesses Hall and Davis concerning the sale price of other lands. Hall and Davis were witnesses for appellant, Davis being the husband of one of the appellants, and the testimony objected to was brought out on cross-examination.
Hall testified on cross-examination as to the price paid by him in 1941 for lands adjoining the homestead lands. The lands purchased by Hall had been previously, by other witnesses, compared with the homestead lands as to similarity, etc. Also, there was testimony concerning economic conditions between the year 1934, the year J. A. Reid died, and the year 1941, when Hall made the purchase. On the question of the remoteness of time of the purchase by Hall of lands adjoining the homestead lands, the rule seems to be that *862 much is left to the discretion of the trial court. Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545, 7 A.L.R.2d 773, and cases there cited. It is also the settled rule that more latitude is allowed on cross than direct-examination of a witness. There was no error to reverse in the crossexamination of Hall.
The same line of reasoning applies to the cross-examination of appellants' witness Davis. On cross-examination by appellee, the witness testified as to the price he paid for certain lands in 1939 which were located some four miles from the homestead lands.
The basis of appellants' assignments of error 10, 11 and 12 is the testimony of appellee's witnesses E. B. Stowers, S. O. Craig and John Brooks.
The witness Stowers testified as to what he paid for two tracts of land totaling 2,100 acres in 1937 and 1938. Before Stowers testified, the witness Croom, one of the homestead appraisers, had laid the predicate for Stowers' testimony by describing and comparing the homestead lands and the Stowers' lands.
After the witness Craig testified as to the type of the homestead land, he stated that in his opinion it was worth $1,500. He further testified that:
Exceptions were reserved as to what Craig paid for the lands he purchased in 1937.
The witness Brooks testified as to the price paid by his employer in 1934 for property similar to the homestead property. He stated: "I am familiar with the nature of the soil of the Reid place; there was not too much difference in the type of soil on the land we bought and the Reid property; sandy; loam clay; a clay foundation. * * *"
We have carefully examined the record with reference to assignments of error 10, 11 and 12, and are convinced that in admitting the evidence made the basis of those assignments, the trial court did not commit reversible error.
Appellants' seventh assignment of error is based on the trial court's not valuing the homestead in excess of $2,000. Admittedly, this presents only the question of the weight of the evidence.
We have examined the evidence with care. While there is a diversity of opinion of the witnesses as to the value of the homestead lands at the time of the death of Reid in 1934, we are unable to say with conviction that the trial court was in error in his conclusion that such value did not exceed the widow's homestead exemption of $2,000. Thompson v. Bryant, 251 Ala. 566, 38 So. 2d 590; Rogers v. McLeskey, 225 Ala. 148, 142 So. 526; Darrow v. Darrow, 201 Ala. 477, 78 So. 383; Hagood v. Spinks, 219 Ala. 503, 122 So. 815.
We find no error to reverse and the cause is affirmed.
Affirmed.
LAWSON, SIMPSON, STAKELY, MERRILL and SPANN, JJ., concur.
LIVINGSTON, C. J., and GOODWYN, J., dissent.
*863 LIVINGSTON, Chief Justice (dissenting).
I am unable to agree with the majority of my brothers. From the wording of the statute, it appears that this proceeding may be instituted only when the property owned by the decedent at the time of his death does not exceed in amount and value the exemption allowed in favor of the widow and minor children. The statute, in its first clause, specifies that the property to which it refers is both the real and the personal property; therefore, in order to invoke the jurisdiction of the court, the petition must contain an allegation that the personal property did not exceed the amount exempt. We will attempt to demonstrate that holding.
In Singo v. McGhee, 160 Ala. 245, 49 So. 290, 291, the sufficiency of the jurisdictional allegations was in question, and the court said:
In Miller v. First National Bank, 194 Ala. 477, 69 So. 916, 917, the court was considering, under collateral attack, the sufficiency of a petition filed under section 4224 of the Code of 1907, which is the same as the provisions of the Code of 1923. There, the court said:
In Hardy v. Morgan, 238 Ala. 251, 189 So. 878, 879, this court said:
In Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105, 107, the probate proceedings were attacked for the failure of the petition to contain an allegation that the property sought to be set aside was all the real estate owned by the decedent at his death. Although the question of a failure to allege that the value of the personal property was not raised, the following discussion by the court indicates that such an averment is necessary to confer jurisdiction upon the probate court:
In the case of Alford v. Claborne, 229 Ala. 401, 157 So. 226, 228, the late Chief Justice Gardner said:
In the case of Boozer v. Boozer, 245 Ala. 264, 16 So. 2d 863, 864, decided by the Court in 1944, this Court declared:
See, also, the cases of Mitchell v. Mitchell, 258 Ala. 572, 64 So. 2d 104; Parker v. Money, 258 Ala. 568, 64 So. 2d 108. These two cases were construing section 697, Tit. 7, Code 1940, as amended by Acts 1951, p. 1558.
From an examination of the statute in question and the above-quoted judicial expressions as to the requirements of a petition filed under that statute, it is apparent that in order to invoke the jurisdiction of the probate court in a proceeding to set apart property as exempt to a widow and minor child or children without an administration of the estate of the decedent under section 7948, Code 1923, it is necessary to allege, among other things, that the personal property owned by the decedent at the time of his death did not exceed the value exempt to the widow and minor child or children, and that a failure to so allege renders the proceeding void.
The petition in the case before us describes the real property owned by decedent at the time of his death and alleges that it was all the real estate which he owned and that at the time of his death it was less in value than $2,000, and less in area than 160 acres. The petition did not contain any allegation whatsoever concerning the personal property owned by the decedent at the time of his death. In the absence of this averment, the probate court had no jurisdiction *868 in the matter. The decree appealed from is therefore void.
In my opinion, the proceeding and decree of the probate court, being void for want of jurisdiction, require that the appeal be dismissed. Walton v. Walton, 256 Ala. 236, 54 So. 2d 498; Simpson v. Simpson, 254 Ala. 648, 49 So. 2d 314; Craig v. Root, 247 Ala. 479, 25 So. 2d 147; Boozer v. Boozer, 245 Ala. 264, 16 So. 2d 863.
It may be that our opinion as expressed above might disturb some titles long since regarded as settled, but in our humble judgment, it is better to change, what to us seems to be the plain language of the statute, by legislative, rather than judicial, action.
I, therefore, respectfully dissent, and in which dissent Justice GOODWYN joins. | June 30, 1956 |
8f66e15c-2479-467e-8721-f30ca9312e13 | Duke v. State | 89 So. 2d 102 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 102 (1956)
Napoleon DUKE
v.
STATE of Alabama.
5 Div. 633.
Supreme Court of Alabama.
July 26, 1956.
A. D. Redden, Tallassee, for appellant.
John Patterson, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
MERRILL, Justice.
The appeal is on the record proper without a transcript of the testimony. When so, the only question presented for review is the regularity of the proceedings in the circuit court. Harper v. State, Ala., 88 So. 2d 788.
But appellee has moved to dismiss the appeal for appellant's failure to comply with Supreme Court Rule 37, Revised Rules effective June 1, 1955 and amended February 17, 1956. The pertinent part of the rule, which was not affected by the amendment, reads:
The verdict, judgment and sentence of the court were on July 14, 1955. A motion for a new trial was duly presented and seasonably continued until it was overruled on November 2, 1955. Notice of appeal was given on July 14, 1955, and the certificate shows that this appeal was taken on November 3, 1955, the day following the overruling of the motion for a new trial.
No extensions of time for filing the transcript of the record were requested in the court below or in this court, and no attempt was made to procure or to establish a transcript of the evidence in the court below as provided by those acts now codified as Title 7, §§ 827(1) to 827(5), Code of 1940, Pocket Part. Therefore, under Rule 37, there being no transcript of the evidence and no attempt to procure one, the transcript of the record should have been filed in this court within sixty days after November 3, 1956, or by January 2, 1956. It was filed here on June 28, 1956.
It follows that the motion to dismiss the appeal for noncompliance with Supreme Court Rule 37 should be granted. The case of Lane v. State, Ala.App., 87 So. 2d 668 where the appeal was dismissed, is analogous to the instant case, the chief difference being that there the transcript of the record included the transcript of the evidence; but the record was not filed in the appellate court within the required sixty days, no extensions of time having been sought by appellant.
Parenthetically, we add that since the record in this cause consists of only eight (8) pages and it was necessary to examine each page in connection with the motion discussed supra, we could not help but notice that the proceedings in the circuit court were regular and it would have been our duty to affirm the judgment of that court if the appeal had not been dismissed.
Appeal dismissed.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur. | July 26, 1956 |
267f95b7-6c73-4282-9635-dff73246b84d | Walker v. State | 90 So. 2d 221 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 221 (1956)
Eugene Gwin WALKER
v.
The STATE of Alabama.
6 Div. 998.
Supreme Court of Alabama.
September 6, 1956.
Rehearing Denied November 15, 1956.
*222 Harold T. Ackerman, Birmingham, for appellant.
John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
This is an appeal from the Circuit Court of the Tenth Judicial Circuit of Alabama.
*223 The defendant was indicted for murder in the first degree. The jury returned a verdict of guilty of murder in the second degree and fixed his punishment at 99 years in the penitentiary.
The defendant did not seasonably file a brief in this Court, but that is not essential to our consideration of an appeal in a criminal case. Johnson v. State, 257 Ala. 644, 60 So. 2d 818; Hymes v. State, 209 Ala. 91, 95 So. 383.
It has been said that § 389, Tit. 15, Code of 1940, when construed in pari materia with others, makes the right of appeal in criminal cases one of substance, imposing upon the Court a duty to search the record for errors. Wesson v. State, 238 Ala. 399, 191 So. 249; Payne v. State, 261 Ala. 397, 74 So. 2d 630.
Consonant with this rule, we have carefully examined the record and searched it for errors prejudicial to the defendant. We find none.
At the close of the State's case the defendant made a motion to exclude the State's evidence. This practice has been approved in criminal trials. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Monk v. State, 258 Ala. 603, 64 So. 2d 588. But we are of the opinion that the evidence was sufficient to warrant the overruling of the motion.
The defendant's motion for a new trial also brings before us the question of the sufficiency of the evidence to sustain the verdict of the jury. The record discloses: After his arrest the defendant made a confession. But prior to the introduction of the confession there was sufficient circumstantial evidence to establish the corpus delicti. The evidence showed that the defendant and the deceased, John H. Bailey, were stopped and identified by a policeman in Chattanooga, Tennessee, about midnight on the night of May 17-18, 1955. At this time the parties were in the 1948 blue Pontiac of the deceased. The next day, May 18, 1955, the body of John H. Bailey was found on the grounds of Mt. Nebo Church near Trussville, Jefferson County, Alabama, with a bullet hole through his head. There were tire tracks on the grounds and evidence that the body had been dragged through the weeds to the place where it was found. A bloody jacket and a .45 caliber empty shell were found near the body. On the same day, May 18, 1955, just at or near midnight, the defendant was arrested near Montevallo, Alabama, in the deceased's 1948 blue Pontiac. He had told friends and relatives that it was his automobile. An examination of the automobile disclosed blood in the back seat and a .45 caliber bullet imbedded in the back floorboard. One witness testified that she saw a pistol in the 1948 blue Pontiac which was in the possession of the defendant. A merchant in Montevallo testified that he sold the defendant several .45 caliber cartridges in the morning on the day of his arrest.
Circumstantial evidence may afford satisfactory proof of the corpus delicti and where the circumstantial evidence presented reasonably infers that a crime has been committed, a voluntary confession may be introduced into evidence. Snead v. State, 251 Ala. 624, 38 So. 2d 576; Hines v. State, 260 Ala. 668, 72 So. 2d 296; Johnson v. State, 247 Ala. 271, 24 So. 2d 17. The confession in the instant case was shown to have been given voluntarily and without threat of punishment or hope of reward, and was therefore properly admitted.
The defendant, in his confession, stated that he met the deceased in a bar in Chattanooga, Tennessee, on the night of May 17, 1955, and that the deceased agreed to drive him to Birmingham, Alabama. He stated that on the way to Birmingham the two stopped and got into a fight at Mt. Nebo Church near Trussville, Alabama, in Jefferson County, and that he shot the deceased with a .45 caliber pistol while they were fighting in the automobile.
The defendant took the stand and testified to essentially the same as his confession *224 with the exception that on the stand he said that he shot Mr. Bailey in Tennessee instead of Alabama. On this conflict in the evidence the trial judge properly instructed the jury that in order for the court to have jurisdiction of the case it was necessary for the jury to believe from the evidence that the crime was committed, if committed, in Jefferson County, Alabama.
After a careful examination of the evidence, we entertain the view that it was sufficient to take the case to the jury and the verdict was sustained by the evidence.
Nor did the trial court err in refusing to grant the defendant's motion for continuance on the ground of insufficient time where the court appointed attorney had ten days in which to prepare the case before trial. The granting of a continuance in a criminal case is in the trial court's discretion and is to be disturbed only in event of a clear abuse. We find no such abuse here. Logan v. State, 251 Ala. 441, 37 So. 2d 753; 6A Alabama Digest, Criminal Law.
Likewise, the trial court did not err in refusing to give the general affirmative charge for the defendant. As appears above, the evidence was in conflict as to where the homicide occurred, and where the evidence is in conflict, the general charge requested by the defendant is properly refused. 6A Alabama Digest, Criminal Law.
Without considering the correctness, vel non, of the refused charges requested by the defendant, we will deal with them briefly. Charges 4, 5, 7 and 20 did not properly hypothesize a finding on the evidence and were properly refused. Charges 3 and 16, seeking to expound the law with reference to circumstantial evidence, were properly refused since the conviction was rested on direct evidence. Cawthon v. State, 254 Ala. 35, 47 So. 2d 200; Jackson v. State, Ala., 88 So. 2d 206.
The defendant's other requested charges, if they were correct statements of the law, were substantially covered by the court's oral charge or given charges.
We are unwilling to pronounce error in the admission in evidence of the photographs. The pertinent rule was stated by the court in McKee v. State, 253 Ala. 235, 44 So. 2d 781, and restated in Hines v. State, 260 Ala. 668, 72 So. 2d 296.
Nor did the trial court err in admitting the bloody jacket in the absence of a timely objection by the defendant. The record shows that the defendant's objection to the admission of the jacket came: (1) After a witness had answered several questions about the jacket; (2) after the defendant had cross-examined the witness on the jacket; (3) after the jacket had been exhibited to the jury; and (4) after the trial judge had admitted the jacket in evidence. The trial judge remarked to the defendant that his objection came late. We are of the same opinion. An objection to evidence must be made when the evidence is offered. 6A Alabama Digest, Criminal Law.
The Court, consistent with its duty, has carefully considered the entire record and finds no error to reverse.
Affirmed.
GOODWYN, MERRILL and SPANN, JJ., concur. | September 6, 1956 |
4c19f47a-3692-4415-a51d-a0f7df88e938 | Chisom v. Woodward Iron Company | 90 So. 2d 816 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 816 (1956)
Henry CHISOM
v.
WOODWARD IRON COMPANY.
6 Div. 825.
Supreme Court of Alabama.
November 15, 1956.
*817 Lipscomb, Brobston, Jones & Brobston and W. E. Brobston, Bessemer, for appellant.
B. J. Dryer, Woodward, for appellee.
LIVINGSTON, Chief Justice.
Henry Chisom, appellant, and ten others brought suits against Woodward Iron Company, appellee. These suits were tried together. The trial of the cases resulted in separate verdicts for each of the eleven plaintiffs. Appellee filed a motion for a new trial, which was granted by the trial court. This appeal is from that order. The motion is based on a number of grounds, including the ground that the verdict of the jury is contrary to the great preponderance of the evidence. The order of the court does not show on what ground the motion was granted.
The verdict for Henry Chisom, this appellant, was for $1,100. The several verdicts for the other ten plaintiffs in the court below, was, in each case, less than $1,000. As a consequence, the appeal in the Henry Chisom case is to this court and the appeals in the other ten cases are to the Court of Appeals.
The Henry Chisom case went to the jury on Counts 2 and 3. Count 2 charged appellee with negligent mining operations which proximately resulted in injury to appellant's well, and Count 3 is substantially the same as Count 2, except that there is an additional averment that large surface cracks appeared in or adjacent to the appellant's real property. In short, the essence of each count is, that in underground mining operations, the defendant conducted such operations so negligently as to cause the water in plaintiff's well to dry up or to drain from plaintiff's well into defendant's mine.
Where the trial court grants a motion for new trial without specifying which ground or grounds of the motion it thought justified the ruling, and one of the grounds on which the motion is based is that the verdict is against the weight and preponderance of the evidence, this court will infer that the ruling was based on such ground and will not disturb the ruling unless it appears that the great weight of the evidence plainly and palpably supported the verdict. Romano v. Thrower, 258 Ala. 416, 63 So. 2d 369; Ford v. Sellers, 257 Ala. 404, 59 So. 2d 799; Birmingham Electric Co. v. Greene, 252 Ala. 40, 39 So. 2d 398; Camp v. Atlantic Coast Line R. Co., 251 Ala. 184, 36 So. 2d 331; Martin v. Birmingham Southern R. Co., 250 Ala. 583, 35 So. 2d 339; Hyde v. Norris, 250 Ala. 518, 35 So. 2d 181; Lindsay Products Corp. v. Alabama Securities Corp., 247 Ala. 662, 25 So. 2d 852.
After a careful consideration of the evidence, we cannot say that the great weight of the evidence supports the verdict and that the trial court's action in setting it aside was clearly and palpably wrong.
The cause is due to be affirmed, and it is so ordered.
Affirmed.
SIMPSON, GOODWYN and SPANN, JJ., concur. | November 15, 1956 |
a59b02e2-b11a-4785-af63-075587793265 | Redmond v. Self | 90 So. 2d 238 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 238 (1956)
C. Bryan REDMOND, d/b/a Redmond Motors,
v.
Ruby SELF.
6 Div. 724.
Supreme Court of Alabama.
November 1, 1956.
*240 Bowers, Dixon, Dunn & McDowell and Evans Dunn, Birmingham, for appellant.
Gibson, Hewitt & Gibson, Birmingham, for appellee.
LAWSON, Justice.
This appeal is from a judgment rendered in an action against appellant, C. Bryan Redmond, doing business as Redmond Motors, hereafter referred to sometimes as Redmond, to recover damages for personal injuries sustained by appellee when the car in which she was riding was hit by a car belonging to Redmond which was being driven by one Terrell G. Mills.
The cause went to the jury on appellee's Count A as amended, which the reporter will set out in the statement of the case, and on Redmond's plea of the general issue in short by consent in the usual form. There was jury verdict in favor of appellee in the amount of $2,000. Judgment was in accord with the verdict. Redmond's motion for new trial being overruled, he perfected this appeal.
The only errors assigned are to the effect that the trial court erred (1) in refusing to give the general affirmative charge with hypothesis in favor of appellant, the defendant below, and (2) in overruling appellant's motion for a new trial.
In considering the propriety of the affirmative charge in this case, we must review the tendencies of the evidence in the light most favorable to the plaintiff below, the appellee here, and must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more proper. Lindsey v. Barton, 260 Ala. 419, 70 So. 2d 633; Wilson & Co. v. Clark, 259 Ala. 619, 67 So. 2d 898; Duke v. Gaines, 224 Ala. 519, 140 So. 600.
The evidence establishes without any contradiction in the testimony relative thereto facts summarized as follows: The appellant on May 10, 1952, was engaged in the business of selling new and used automobiles in the city of Knoxville, Tennessee, and on said date had in his employment as a car salesman the said Terrell G. Mills, who was originally a defendant in this cause but was removed as a party defendant by the plaintiff below apparently because of lack of service. Shortly after 9:00 on the morning of May 10, 1952, Mills drove a 1951 Studebaker belonging to Redmond away from the latter's used car lot situate in the city of Knoxville, Tennessee. Neither Redmond nor the used car manager was aware of this action on the part of Mills, although a fellow employee saw him leaving. Mills drove the Studebaker to Birmingham, Alabama, where at about 2:30 on the afternoon of the same day he drove the car into the rear of a car which was occupied by the appellee, Mrs. Ruby Self, who was sitting on the front seat along with the driver, her husband, who was the owner of that car. At the time of the impact the Self automobile had stopped in compliance with a traffic signal at an intersection of two streets in the city of Birmingham. At the time of the collision Mills was under the influence of an intoxicating liquor or beverage. Mrs. Self was rather severely injured as a result of the collision of the two automobiles, but it is not necessary to make specific reference to the nature of her injuries, inasmuch as no question is raised as to the amount of the damages.
The evidence summarized above establishes beyond peradventure that the injuries sustained by Mrs. Self were a proximate consequence of the negligence of Mills. But it is equally well established that at the time of the collision Mills was not acting within the line and scope of his employment and for that matter, the plaintiff's *241 theory of liability is not based on the doctrine of respondeat superior.
The theory on which recovery was sought is that the appellant, Redmond, negligently entrusted the automobile to Mills, an incompetent driver who was addicted to the use of intoxicating liquors or beverages, although the appellant knew Mills to be an incompetent driver and knew that he was addicted to the use of intoxicating liquors or beverages.
Our case of McGowin v. Howard, 251 Ala. 204, 36 So. 2d 323, declares the applicable principles of law which govern cases of this character, the effect of which holding is that an owner entrusting a motor vehicle to a known incompetent, reckless or careless driver (1) is liable to a person injured by the combined negligence of the owner and operator if the operator is acting within the scope of the owner's consent and (2) is also liable notwithstanding the driver's use was beyond the scope of the owner's consent, if the owner's permission to the incompetent or reckless driver was with knowledge that the operator would likely use the vehicle beyond the scope of the owner's consent, if the letting of such vehicle was a proximate contributing cause of the injuries directly resulting from the incompetence or recklessness of the driver. See Buchanan Contracting Co. v. Denson, 254 Ala. 55, 47 So. 2d 171.
The appellant insists that the general charge was due him because there is an entire lack of evidence to prove (1) that he entrusted the automobile to Mills; (2) that Mills was addicted to the use of intoxicating liquors or beverages; and (3) that he, Redmond, knew of such addiction, if such was the case.
In view of the averments of the complaint on which this case went to the jury, we are of the opinion that if there is a failure of proof in either of those respects, then the affirmative charge should have been given in favor of the appellant as requested.
Mills was first employed by Redmond early in March, 1952, as a new and used car salesman and was authorized by Redmond to drive the latter's automobiles for demonstration purposes, but for no other purpose, this according to Redmond's testimony. But irrespective of that restriction on the use of his employer's automobiles, Mills on or about April 1, 1952, drove a Redmond automobile to the town of Clinton, Tennessee, approximately twenty miles away from Knoxville, where he was arrested on a charge of driving while intoxicated. The trip to Clinton was not on company business. Because of this episode Mills was fired but was reemployed by Redmond three or four days thereafter, with the understanding, according to Redmond, that Mills could not drive a Redmond-owned automobile from the place of business without instructions from the used car manager. As heretofore indicated, on the day of the accident here involved, Mills had no such instructions from the used car manager or anyone else in authority. W. W. Self, the husband of appellee, plaintiff below, testified that in a conversation which he had with Redmond several months after the accident the latter stated that after Mills was reemployed he had access to the automobiles like other salesmen. We are of the opinion that the evidence is sufficient to justify a finding by the jury that when Redmond reemployed Mills he was chargeable with knowledge that Mills would likely use automobiles beyond the scope of Redmond's consent and contrary to his instructions, just as he had done on the trip to Clinton. We hold, therefore, that a jury question was presented as to whether the automobile was "entrusted" to Mills on the occasion here involved.
We think the evidence sufficient to support a finding by the jury that Mills was addicted to the use of intoxicating liquors or beverages and that Redmond had knowledge of that addiction.
*242 It is true that the evidence does show but two specific instances when Mills was drunk, one on the Clinton trip and the other on the visit to Birmingham which resulted in this litigation. Of course, the Birmingham incident cannot be considered in connection with the charge that Redmond knew of Mills' addiction and nevertheless entrusted the automobile to him. But that instance is to be considered as going to show Mills' addiction as charged in connection with the evidence concerning his drunkenness in Clinton and the testimony of Mr. Self, the appellee's husband, that Redmond told him in Knoxville some time after the accident that before May 10, 1952, he knew that Mills was a "drunkard" but that he was a good salesman except for his drinking and had conducted himself properly during the time that intervened between the Clinton trip and the Birmingham trip. Declarations or admissions of parties to a civil cause against interest are admissible against them when made in or out of court. Waller v. Simpson, 208 Ala. 333, 94 So. 343.
Redmond did not expressly deny making the statement attributed to him by Mr. Self, but he did testify that prior to the accident in Birmingham he had never heard of Mills "being drunk or drinking except on that one occasion in Clinton."
In our opinion, as we have heretofore indicated, the evidence was sufficient to justify a finding by the jury that Mills was, to the knowledge of defendant, a drunkard, that is he was addicted to the use of alcoholic liquors or beverages.
We feel that the evidence is sufficient to justify an inference that Redmond should have anticipated that Mills, when rehired as a salesman after his arrest in Clinton for drunken driving, would again go beyond the scope of Redmond's consent.
We think on the whole case the jury was authorized to find, as it did, that the joint negligence of Redmond and Mills caused the accident of which appellee complains.
We consider next whether the trial court erred in overruling those grounds of the motion for new trial which take the point that the verdict was contrary to the great weight of the evidence, for it is those grounds which are sufficiently argued in brief to warrant consideration here.
We have said that where there is evidence which, if believed, justified the verdict, the motion for new trial is properly overruled. Johnson v. Louisville & N. R. Co., 240 Ala. 219, 198 So. 350. Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799; Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530.
After allowing all reasonable presumptions in favor of the correctness of the verdict, we cannot say that the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, supra. In thus upholding the action of the trial court in refusing the defendant's motion for a new trial, we do not wish to be understood as expressing the view that a verdict should be upheld in a case of this kind where the only evidence tending to show the alleged incompetence of the driver is an admission against interest alleged to have been made by the owner. However, that statement, together with the other evidence, leads us to the conclusion that we would not be justified in disturbing the verdict in this case.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and SPANN, JJ., concur. | November 1, 1956 |
b5720229-de05-434b-81c1-8fb663d3f142 | Limbaugh v. Comer | 90 So. 2d 246 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 246 (1956)
Oscar LIMBAUGH
v.
William W. COMER.
6 Div. 639.
Supreme Court of Alabama.
September 6, 1956.
Rehearing Denied November 15, 1956.
*247 Kingman C. Shelburne, Birmingham, for appellant.
Rogers, Howard & Redden, Birmingham, for appellee.
SPANN, Justice.
Appellant, Oscar Limbaugh, filed his bill in equity in the Circuit Court of Jefferson County, Alabama, to settle a dispute as to the location of the boundary line between the property of appellant and William W. Comer, the appellee. The dispute arose when the respondent, Comer, began making certain improvements which the complainant, Limbaugh, claimed extended over the boundary line of the coterminous property and onto the land of the complainant. From an adverse decree complainant appeals.
The questions presented by appellant's assignments of error may be grouped into three principal categories:
1. What degree of certainty is required in the description of a boundary line established by a court decree?
2. When must judicial landmarks be ordered to be placed upon a boundary line so established?
3. Of what weight must testimony taken ore tenus in open court before a judge in equity be to support the finding of the location of a boundary line?
The court answers the questions so presented on this appeal as follows:
A decree establishing the location of a boundary line between the lands of coterminous owners must be reasonably certain within itself or by reference to the pleadings, evidence or documents filed in the cause, and the decree must be so certain that the line may be located and marked by an officer of the court who may be appointed to so mark the line without reference to extrinsic evidence or the use of his own discretion or by drawing his own conclusions as to any fact determinant of the true location of the line.
Where a decree refers to a survey without more in undertaking to describe a boundary line, the decree is not sufficiently certain, but where permanent *248 monuments, natural or artificial, are already on the ground and are shown in evidence and incorporated in the decree they will suffice to fix the boundary. Iron stakes may be permanent monuments and since the decree referred to the iron stakes as being so placed that the line established by the decree could be marked by use of them, the trial court implied that the iron stakes were permanent markers and every presumption in favor of the correctness of the trial court's decree will be indulged. The description of the boundary line contained in the decree leaves no room for the drawing of conclusions or exercise of discretion in the location or marking of the line established.
The next question urged on the court by appellant involves an interpretation of Title 47, Section 4, Code of Alabama 1940. The section reads:
Appellant contends that the decree rendered in the instant case improperly failed to so order judicial landmarks to be placed upon the boundary line established. He relies on the case of Baldwin v. Harrelson, 229 Ala. 469, 158 So. 416, to support his contention wherein the court remanded a decree for revision by such an order. But appellee contends, and rightfully so, in our view, that the inclusion of such an order in the decree is a matter to be determined in the discretion of the trial court. Appellee relies heavily on the case of Redden v. Otwell, 252 Ala. 653, 42 So. 2d 454, to support his contention. We are of the opinion that the trial court did not abuse its discretion and that appellee's contention must prevail. In the case before us, the trial court referred to permanent landmarks in its decree thus satisfying the statute.
The third question sought to be presented by the appellant is whether the evidence in the case was sufficient to support the finding of the trial court that the location of the boundary line was the center line of the "Old Tennessee Road" as represented on a certain survey admitted as evidence in the case. In his brief, appellee has directed the court's attention to testimony sufficient, we think, to support the finding of the trial court. Appellant's brief does not contain a concise statement of the record including a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely as required by Supreme Court Rule 10, Title 7 Appendix, Code 1940. Consequently, we do not here recite the facts which we feel sustain the contention of the appellee that the evidence is sufficient to support the trial court's finding. Case v. O'Shields, 30 Ala. App. 254, 4 So. 2d 202; Lamar Life Ins. Co. v. Kemp, 30 Ala.App. 138, 1 So. 2d 760.
The two questions properly presented by appellant for our consideration both relate to the adequacy of the decree of the trial court. Appellant contends first that the decree is not sufficiently certain in its description of the boundary line. That portion of the decree objected to by appellant is as follows:
The degree of certainty required in a decree fixing the location of a boundary line may be determined from a consideration of the following cases:
Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558, 559:
Payton v. Madison, 251 Ala. 353, 37 So. 2d 588, 590:
This was an action of ejectment and the holding was on the sufficiency of the complaint to support the judgment for plaintiff.
Mere reference to a survey as determinative of the location of a boundary line sought to be established is not sufficient to describe the line with reasonable certainty. In the case of Ward v. Lane, 189 Ala. 340, 66 So. 499, 502, the court found that where in a suit to determine a disputed boundary line, a survey of the line had been made by one Thompson, and a map of that line was introduced in evidence, a verdict finding that the true line between the two subdivisions in question was "`"The Thompson Line"'", without more, was insufficient to support a judgment, and could not be lawfully supplemented by the trial court adding thereto the Thompson map.
In Wade v. Gilmer, 186 Ala. 524, 64 So. 611, 612, the court said:
But in Baldwin v. Harrelson, 229 Ala. 469, 158 So. 416, 418, the court said:
In this case, the court observed:
The court then affirmed the lower court's decree establishing the wire fence as the true line, but remanded the cause with instructions to proceed to have judicial landmarks placed as provided by Code 1923, § 6441.
It is clear that iron stakes may be permanent markers as may be seen from the statement of the court in Redden v. Otwell, supra [252 Ala. 653, 42 So.2d 456]:
As stated in 32 Words and Phrases, Permanent Monuments, on page 190:
Included in the interpretations quoted by Words and Phrases as descriptive of permanent monuments were "`"prominent posts, or stakes, firmly planted in the ground"'".
The court below by referring in its decree to the iron stakes in describing the location of the boundary line implies that the iron stakes in the instant case are permanent monuments, otherwise, the decree would be defective in the light of Ward v. Lane, supra, and Wade v. Gilmer, supra. The evidence having been taken ore tenus in open court before the trial judge, every reasonable intendment will be indulged in favor of the trial court's ruling. Therefore, the court's implied finding of fact that the iron stakes in evidence at the location of the line are permanent markers, will not be disturbed, the trial court having had a better opportunity to conclude from the evidence the character of the stakes than this court has on appeal. We conclude, therefore, that the decree of the trial court is sufficiently certain *251 in its description of the boundary line as to be a proper judicial ascertainment of the location of such line.
Appellant contends that the trial court erred in failing or omitting to order that judicial landmarks be placed on the boundary line fixed by its decree. Though the case of Baldwin v. Harrelson, 229 Ala. 469, 158 So. 416, furnishes an example of a decree which should have been reinforced by an order for placing of judicial landmarks on the boundary line fixed by it, we do not think the instant case similarly deficient. In that case, the court found that a wire fence was not a permanent monument, and there was no evidence of any permanent monument already on the boundary line to which the court could refer in its decree. The instant case admits of distinguishing facts in that the iron markers present provide sufficient points of reference and identification in the fixing of the location of the line by the court. In Redden v. Otwell, supra, the court held that Title 47, § 4, Code 1940, which contains the provision that the court may provide for the placing of judicial landmarks, is directory and not mandatory. This court adheres to the finding in that case, and holds that there is no evidence of such an abuse of discretion as would enable the court to order that judicial landmarks be placed on the line. The presumption in favor of the trial court's decree further strengthens the propriety of the discretion exercised by the court below.
We conclude that appellant's assignments of error 1, 2, 3 and 6 relating to the certainty of the trial court's decree are not well taken, that assignment of error 5 relating to placing judicial landmarks is not well taken, and that assignments of error 4 and 7 relating to the sufficiency of the evidence are not well taken. The decree of the lower court is therefore affirmed.
Affirmed.
SIMPSON, GOODWYN AND MERRILL, JJ., concur. | September 6, 1956 |
7e948cf7-1e06-4cb0-8bb3-326afe941068 | Ex Parte Brooks | 89 So. 2d 100 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 100 (1956)
Ex parte Mazie C. BROOKS.
5 Div. 634.
Supreme Court of Alabama.
August 2, 1956.
Denson & Denson and Yetta G. Samford, Jr., Opelika, and Young & Hollis, Columbus, Ga., for petitioner.
L. J. Tyner, Opelika, for respondent.
STAKELY, Justice.
In this case Carrie Morgan brought her suit against Mrs. Mazie C. Brooks (petitioner here) for damages claimed as a result of an automobile accident, wherein *101 plaintiff alleges that she was riding as a passenger in an automobile on a public highway in Chambers County, Alabama, on towit, June 13, 1952, and that defendant negligently operated an automobile at that time and place and collided with the car in which the plaintiff was riding and as a proximate result thereof, plaintiff suffered personal injuries and damages. The complaint consists of three counts, the first two counts charging simple negligence and the last count charging wanton misconduct. The suit was filed in the Circuit Court of Chambers County on June 9, 1953.
The plaintiff then sought to get service on the defendant, a nonresident under the provisions of § 199, Title 7, Code of 1940. Copies of the complaint were sent to the Sheriff of Montgomery County, who made service thereof on the Secretary of State of Alabama on towit June 10, 1953, but no notice of such service and a copy of the summons and complaint were sent by the Secretary of State to the defendant at that time either by registered mail or in any other manner. Later on service was sought to be had by notice to the defendant by the Secretary of State on towit May 24, 1955. For reasons which will become apparent we see no reason at this time to state in any further detail the facts relating to the effort to give notice by the Secretary of State to the defendant.
The defendant, Mrs. Mazie C. Brooks, entered a special appearance in the cause and filed a plea in abatement attacking the service claimed to have been had on her through the Secretary of State of Alabama. To this plea Carrie Morgan demurred. The court sustained the demurrer and this petition for mandamus is filed here to require the lower court to vacate its order sustaining the demurrer to the plea in abatement. The case is submitted here on the petition for mandamus and the demurrer and answer of Judge Will O. Walton.
In the recent case of Brittain v. Jenkins, 263 Ala. 683, 83 So. 2d 432, this court held in effect that if the matter complained of, including a ruling on a plea in abatement, can be ultimately presented to the appellate court through the medium of an appeal from final decree, mandamus will not ordinarily be granted for reasons set forth in the opinion, including the proposition that appellate courts will not hear causes in piece-meal. It is also pointed out that under our cases, mandamus will not be granted for the mere purpose of review. Accordingly, the writ in Brittain v. Jenkins, supra, was denied. See Koonce v. Arnold, 244 Ala. 513, 14 So. 2d 512; Ex parte Small, 263 Ala. 669, 83 So. 2d 429; Ex parte South & North A. Railroad Co., 65 Ala. 599. In Brittain v. Jenkins, supra, exceptions to the general rule which we have stated were referred to. To these exceptions we add the exception mentioned in Ex parte Morton, 261 Ala. 581, 75 So. 2d 500. In the case here referred to the case was properly before this Court on an appeal from a decree overruling the demurrer to a bill in equity. Since the case was properly before this Court, this Court thought that it would promote justice and expedite the cause by expressing the views of the Court on the sufficiency of the plea in abatement.
Under our cases we see no basis for granting mandamus. Our examination of the authorities shows that expense and inconvenience is not controlling in a matter of this kind. Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 75 S. Ct. 845, 99 L. Ed. 1155; Gulf Research & Development Co. v. Leahy, 3 Cir., 193 F.2d 302, 304; Southwestern Natural Gas Co. v. Vernor, 178 Okl. 344, 62 P.2d 1262; Kay Ferer, Inc., v. Hulen, 8 Cir., 160 F.2d 146; 55 C.J.S., Mandamus, § 22, p. 54.
It results from what has been said that the writ of mandamus is due to be denied.
Writ denied.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | August 2, 1956 |
8b53fdff-b23d-4121-b011-5ade17804ce5 | Witherall v. Strane | 90 So. 2d 251 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 251 (1956)
Jack WITHERALL et al.
v.
Clayton C. STRANE et al.
3 Div. 715.
Supreme Court of Alabama.
September 6, 1956.
Rehearing Denied November 15, 1956.
*252 Hill, Hill, Whiting & Harris, Montgomery, for appellants.
Donald McKay, Montgomery, for appellees.
GOODWYN, Justice.
Clayton C. Strane and Ada D. Strane, appellees here, filed a bill of complaint in the circuit court of Montgomery County, in equity, to enjoin the respondents, appellants here, from blocking access to an alleged alley adjoining the complainants' property on the south and the respondents' property on the north. This appeal is by respondents from the final decree granting the relief prayed for.
The Stranes are the owners of lot 7, according to the plat of the Frances S. Powell Estate, as the same appears of record in the office of the Judge of Probate of Montgomery County in Plat Book 3, at page 77. This lot fronts approximately 52 feet on the east side of South Goldthwaite Street and runs back of equal width a distance of 218.5 feet. They went into possession of this lot in 1938 under a bond for title contract with the owner and have lived there continuously since that time. On September 21, 1950, they received a general warranty deed from the owner conveying the lot to them. This deed contains a recital that the grantor "does hereby release, remise, quitclaim and convey unto the said Clayton C. Strane and Ada D. Strane, their heirs and assigns, all of its right, title, interest or claim in and to any alleys, passageways or other easements in any way joining or serving the real estate above described".
On February 5, 1948, there was filed in the office of the Judge of Probate of Montgomery *253 County a plat of the B. P. Crum property adjoining the Stranes' lot on the south. Said plat is recorded in Plat Book 9, at page 23, and consists of lots 1 through 7. Along the north side of said plat there is shown a strip of land 8 feet wide extending east and west the entire length of the plat, a distance of 280 feet east of South Goldthwaite Street. It is this strip which is in controversy. The following drawing, not to scale, is for a better understanding of the situation:
It appears that houses were built and occupied on the lots in the Crum plat for many years prior to the recording of the plat. And, as we understand it, there is no question about Judge Crum's ownership of all of the property embraced in the plat at the time of its recording, including the 8-foot strip, unless there had been acquired by the public, prior to the recording, a prescriptive right to the use of the strip as an alley or other public way. A reference to the plat will show that no designation is given to the 8-foot strip as being an "alley", "public alley", "private alley" or otherwise, nor is there anything on the plat indicating any specific dedication, use or reservation of said strip.
It further appears that the lots in the Crum plat have been sold to the several respondents and that the deeds contain a provision giving to each respondent "the right of ingress or egress in and over the open court in front of said property and leading to Goldthwaite Street and also in and over an 8-foot alley in rear of said property."
*254 On March 19, 1951, all of the owners of the lots in the Crum plat executed an agreement having for its purpose the vacation of said 8-foot strip as an alley, the agreement providing that each property owner would acquire title to that portion of the strip lying adjacent to his lot. Although it appears that said agreement precipitated this litigation, neither its validity nor its effect is now before us.
The Stranes contend that the 8-foot strip is a public alley, first, by reason of its use by the public as an alleyway for the prescriptive period of twenty years or more, and, second, because it was dedicated as a public alley by the recording of the Crum plat and the selling of lots with reference thereto.
We have carefully examined and considered the evidence and have little difficulty in concluding that it is not sufficient to support a finding that the strip gained status as a public alley by prescription. It appears from the evidence that for at least 17 years there have been obstructions across the strip that have blocked its use as an alley or other public way. And such evidence as there is concerning its use by the public prior to that time is inconclusive and unimpressive. Clearly, it is not sufficient to show an adverse use by the public for the prescriptive period of 20 years or more.
Whether a dedication to the public has been effected by the recording of the plat and the sale of lots with reference thereto presents a more difficult problem.
We do not understand appellees to contend that there has been a statutory dedication of the alley, but rather that there has been a common-law dedication. The fact that there are statutory methods for dedicating lands to public use does not prevent a common-law dedication. East Birmingham Realty Co. v. Birmingham Machine & Foundry Co., 160 Ala. 461, 473, 49 So. 448.
There is a line of cases holding that "where a person plats land and lays off lots according to such plat and makes sale of one or more of such lots with reference thereto, he irrevocably dedicates the land designated thereon as streets, alleys, avenues, and highways to the public, for public uses." Lybrand v. Town of Pell City, 260 Ala. 534, 538, 71 So. 2d 797; Talley v. Wallace, 252 Ala. 96, 97, 39 So. 2d 672, 673; Nashville, C. & St. L. Ry. Co. v. Hulgan, 219 Ala. 56, 57, 121 So. 62, and cases there cited. In Smith v. Duke, 257 Ala. 86, 87, 57 So. 2d 550, 551, the principle is stated as follows: "Nothing else being shown, it is unquestionably true that the platting and recording of the plat showing the park area in question and the sale of lots referring to that plat constitute an irrevocable dedication of the area marked `park,' except as may be authorized by statute." (Emphasis supplied.)
It is our view that the stated principle is not controlling in the case before us. That principle is based on estoppel. Manning v. House, 211 Ala. 570, 573, 100 So. 772. "Proof of dedication by inference from acts of mapping and platting land, and selling lots by reference to the map, is insufficient, unless the sales are shown to have been effectuated by conveyances. It is the estoppel resulting from an effective grant, recognizing the highway, that produces the inference of dedication." 26 C.J.S., Dedication, § 23, p. 82. In the instant case we do not find any element of estoppel. Here, the deeds to the lots, instead of misleading the grantees or the public, clearly show, and put the grantees and the public on notice, that the owner did not intend to dedicate the strip to public use. If a dedication to the public had been intended there would have been no reason for conveying to respondents the right to use the strip. They would have had that right as members of the public. It seems to us that the deeds to the Crum lots definitely settle the purpose and intent in laying off the 8-foot strip. The granting of a right of ingress and egress in and over said strip negatives and excludes the presumption of an intention to dedicate the strip to public use.
*255 Another factor bearing on the question of intent is the location and nature of this particular strip. Although the mere fact that an alley is a cul-de-sac does not preclude it from being a public alley, Johnston v. Lonstorf, 128 Wis. 17, 107 N.W. 459, in order to establish the right of the general public to use such an alley the proof must be very clear and satisfactory. Gilfillan v. Shattuck, 142 Cal. 27, 75 P. 646.
The intent to dedicate to the public use is the foundation of every dedication. And the burden of proving a dedication rests upon the party asserting it. State ex rel. Davis v. Meaher, 213 Ala. 466, 484, 105 So. 562; Burleson v. Town of Hamilton, 213 Ala. 198, 200, 104 So. 253; Smith v. City of Dothan, 211 Ala. 338, 340, 100 So. 501. "Dedication is an affirmative act, and must be shown by affirmative evidence or its equivalent. If the acts and declarations of the owner are equivocal, they are insufficient to establish a dedication. * * * The intent to dedicate to the public use must be shown by unequivocal acts upon which the public has a right to rely." Burleson v. Town of Hamilton, supra [213 Ala. 198, 104 So. 254]. In Smith v. City of Dothan, supra [211 Ala. 338, 100 So. 502], the rule was recognized "that to establish a dedication the clearest intention on the part of the owner to that effect must be shown, and that the evidence must be clear and cogent and the acts of the owner relied on to establish a dedication must be unequivocal in their indication of the owner's intention to create a public right exclusive of his own."
From 16 Am.Jur., Dedication, § 17, pp. 361, 362, is the following:
The rule is thus stated in 1 Elliott, The Law of Roads and Streets, § 138, p. 164:
In view of our holding that an intent to dedicate does not appear there is no occasion to discuss whether there was an acceptance of the claimed dedication.
The decree is due to be reversed and one rendered here denying relief to complainants and dismissing their bill. So ordered.
Reversed and rendered.
SIMPSON, MERRILL and SPANN, JJ., concur. | September 6, 1956 |
fcc23c11-04cc-4ef4-a34b-90a8adbd16c1 | State v. Plantation Pipe Line Company | 89 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 549 (1956)
STATE of Alabama
v.
PLANTATION PIPE LINE COMPANY.
3 Div. 735.
Supreme Court of Alabama.
August 2, 1956.
Rehearing Denied September 13, 1956.
Writ of Certiorari Denied December 10, 1956.
*550 John Patterson, Atty. Gen., and Willard W. Livingston and Wm. H. Burton, Asst. Attys. Gen., for appellant.
Cabaniss & Johnston, Jos. F. Johnston and E. T. Brown, Jr., Birmingham, for appellee.
Writ of Certiorari Denied December 10, 1956. See 77 S.C. 263.
STAKELY, Justice.
The State Department of Revenue made an assessment for franchise taxes under the provisions of § 348, Title 51, Code of 1940, covering the tax year 1952 against Plantation Pipe Line Company, a corporation, in the amount of $22,655. Plantation Pipe Line Company appealed from the foregoing final assessment to the Circuit Court of Montgomery County, in Equity. In the Circuit Court of Montgomery County, in Equity, Plantation Pipe Line Company filed its bill of complaint to which the State filed a demurrer. The court entered a decree in which the court sustained the demurrer to certain aspects of the bill of complaint which are now not under consideration and at the same time overruled the demurrer to other aspects of the bill. The aspects of the bill of complaint to which the demurrers were overruled are stated in the decree to be:
Thereafter the State filed its answer to the foregoing bill of complaint. Attached to the answer of appellant were exhibits A, B and C, which were made a part of the answer. These exhibits were introduced in evidence as a part of the record through a stipulation wherein it was agreed that such documentary evidence could be introduced without objection as to form.
On a hearing of the issues made by the bill of complaint and the answer the court rendered its final decree and in doing so made certain findings of fact and conclusions of law. In substance the court declared the final assessment of franchise tax made against Plantation Pipe Line Company for the tax year 1952, was invalid in its entirety and ordered the Comptroller of the State of Alabama to refund to Plantation Pipe Line Company the amount of $22,655 which the company had paid for the sake of taking the appeal as provided in § 140, Title 51, Code of 1940, together with interest on the aforesaid amount from December 12, 1952, and ordered the costs to be paid by the appellant.
In its answer the State pleaded, among other things, res adjudicata to the bill, which was made a part of the answer. The State attached as Exhibit "B" a copy of the bill of complaint which Plantation Pipe Line Company had filed in Case No. 13040 in the Circuit Court of Montgomery County, in Equity, setting up, in substance a cause of action claimed to be identical in all respects with the cause of action here involved, except that the tax involved was for the year 1942. In that case the court held that Plantation Pipe Line Company was due to pay the State of Alabama the sum of $7,849.73 as franchise tax for the year 1942. We shall consider the issue of res adjudicata separately from the other matters considered in this opinion and shall hereinafter outline the contention as to res adjudicata at greater length.
The case was tried orally before the court and we have given careful consideration to the evidence introduced in the cause. We find that the facts as summarized by the court in its decree are substantially *551 in accordance with the facts introduced in evidence and will be stated by us as briefly as possible as follows.
Plantation Pipe Line Company is a corporation which was organized under the laws of the State of Delaware on July 8, 1940. On July 30, 1941, 55 Stat. 610, Congress enacted a law which provides in part, "Whenever the President finds that the construction of any pipe line for the transportation and/or distribution of petroleum or petroleum products moving in interstate commerce, or the extension or completion of any such pipe line already wholly or partly constructed, is or may be necessary for national-defense purposes, he shall by proclamation declare such finding." Section 2. The President, on August 23, 1941, issued a Proclamation, No. 2505, 55 Stat. 1670, to that effect, as to the pipe line proposed to be constructed by Plantation Pipe Line Company, which contained among other things the statement that the President does "hereby find and proclaim (1) that it is necessary for national defense purposes that there be constructed and completed a pipe line system for the transportation and distribution of petroleum and petroleum products moving in interstate commerce, * * * commencing in the vicinity of Baton Rouge, Louisiana, and extending in a north-easterly direction through the States of Louisiana, Mississippi, Alabama, Georgia, and South Carolina, and into North Carolina to a point in the vicinity of Greensboro, North Carolina, with branch lines extending to Montgomery and Birmingham, Alabama, Columbus and Macon, Georgia, and Chattanooga and Knoxville, Tennessee, (2) that Plantation Pipe Line Company, a private corporation organized under the laws of the State of Delaware, has commenced to work necessary for the construction of such a pipe line system and represents that it is prepared to undertake the construction of and will complete said pipe line system * * *."
The pipe line as originally contemplated and as described by the President of the United States in his proclamation was completed and put into operation during the year 1942. The pipe line could not have been financed, organized and the project completed and put into operation except by means of a corporation organized for that purpose and having the customary charter powers, such as the right to issue securities to represent the investment, continuity of existence, etc.
Plantation Pipe Line Company qualified to do business in Alabama in 1941.
Plantation Pipe Line Company was in 1952 and at all times has been a common carrier pipe line company within the meaning of the Interstate Commerce Act, operating solely under tariffs filed with the Interstate Commerce Commission.
Plantation Pipe Line Company has never filed nor sought approval of its rates and tariffs by the State of Alabama or any other state and the State of Alabama has never asserted any regulatory authority or jurisdiction over any of the rates or practices of the Plantation Pipe Line Company.
During the year 1952 Plantation Pipe Line Company owned and operated a pipe line running from Baton Rouge, Louisiana, to Greensboro, North Carolina, with lateral lines from Helena, Alabama, to Birmingham and Montgomery, Alabama, and from Bremen, Georgia, to Columbus and Macon, Georgia, and to Chattanooga and Knoxville, Tennessee. The length of the lines, with laterals, was approximately 1,968 miles, of which approximately 483 miles were located in Alabama. The total investment in carrier property, including construction work in progress as of January 1, 1952, was approximately $69,615,442.47 for the entire system and within the State of Alabama on the same date was approximately $17,095,063.34.
The business of Plantation Pipe Line Company is and was in 1952 conducted as follows. It receives at Baton Rouge, Louisiana, in tanks owned by it, gasoline and petroleum oil distillate for transmission to terminals, located in other states specified *552 in its tariff. The capacity of its line has been at all times since its construction and was during 1952 and is now absorbed by shipments tendered at Baton Rouge. Plantation Pipe Line Company has never received in Alabama any petroleum products for shipment and has never maintained any facilities in Alabama for receiving such products for shipment. The products received at Baton Rouge are tendered by various shippers and differ in kind and specifications. From the tanks the products are pumped into its pipe line in lots or batches of sufficient volume to remain separate and distinguishable from preceding or succeeding lots. These basic requirements of the business are reflected in tariff I. C. C. No. 14 under which Plantation Pipe Line Company was doing business on January 1, 1952.
After the products are pumped into the pipe line at Baton Rouge, the flow gradually slows down as the product moves, requiring the use of pumps located at intervals to maintain the flow. Three pumping stations were operated in Alabama in 1952 with stand-by facilities at four points in the State of Alabama.
Plantation Pipe Line Company had four delivery terminals in Alabama in 1952, at Moundville, Birmingham, Montgomery and Oxford. It did not make delivery of any products shipped through its pipe line at any point in Alabama other than at these terminals. This was in conformity with its tariff. Plantation did not maintain any storage tanks at any delivery terminal or elsewhere in Alabama. As required by the tariff, shippers receive their products from the pipe line without delay.
The pipe line through Alabama consists of an 18-inch pipe line and a 12-inch pipe line. The line from Helena to Birmingham is an 8 inch line and the line from Helena to Montgomery is a 4-inch line. Due to the difference in size between the main pipe line passing through Helena and the branch lines to Birmingham and Montgomery, it is impossible to take the product directly from either main line into the branch lines. Accordingly, Plantation Pipe Line Company maintains at Helena seventeen tanks into which are diverted the products from the main lines destined for the terminals at Birmingham and Montgomery. This number of tanks is necessary to insure that the identity of the products being transported be maintained. From the tanks at Helena the product is pumped into the pipe line to Birmingham or Montgomery at high pressure.
Quantities of products destined for Birmingham and Montgomery are not sufficient to require or permit the constant use of the branch lines and therefore the Birmingham and Montgomery delivery terminals are not always open, the products remaining in the tanks at Helena for an average of two or three days before continuing to final destinations. Products are never stored at Helena at the request of a shipper and no deliveries are made there. These tanks are not used for storage and reshipment but are in fact only necessary parts of the transportation facilities without which the deliveries of products received in Louisiana could not be made to the tariff destinations. The tanks at Helena are used in the same way as railroad classification or marshalling yards and the products in the tanks are at all times considered to be and are in fact still in the course of interstate transportation. The tariff does not provide for in transit storage.
In order to assure uninterrupted operation of the pipe line, it is necessary that the person in charge of each pumping station and stand-by facility be on duty or on call at all times and for this purpose the company maintains at each station one house which it requires the responsible employee to occupy and for which he is charged rent in an amount less than the annual depreciation and repairs.
At each of the operating pumping stations there is a water tank primarily for fire protection. Water from the tank is never sold commercially but is used, incidentally *553 and without charge, by employees at the pumping station and in the company house.
The company maintains at Helena a warehouse where are stored maintenance materials for the operation of the pipe line. It also maintains a fire truck at Helena.
Plantation Pipe Line Company had 82 employees in Alabama on January 1, 1952, and 68 on January 1, 1953. The only employees in Alabama in 1952 were those engaged solely and directly in the service of constructing, maintaining and operating the pipe line. The company had three trucks at Akron and a truck at Helena and Silver Run in 1952, which were used only to carry employees from place to place in connection with their work in the construction, maintenance and operation of the pipe line, to carry needed supplies and for other purposes directly connected with the construction, maintenance and operation of the pipe line.
Some construction was carried on in 1952 by an independent contractor, consisting of enlarging the pumping facilities on the main lines. Similar work was done at Helena in 1951 and some clean-up work in connection with such construction was done at Helena in 1952.
To keep its pipe line system in operation Plantation Pipe Line Company maintained by means of lines leased from others a communications system between its terminals, pumping stations, and its chief operating office in Atlanta. Plantation Pipe Line Company has never maintained any general or corporate office in Alabama. Its statutory domicile is and has been Delaware and its principal corporate and operating office is and has been in Atlanta, Georgia. Plantation Pipe Line Company has never kept any records in Alabama except pumping station and terminal operating records necessary to the transportation of products received into the pipe line in Louisiana. It has never performed any functions in Alabama except those of constructing, maintaining and operating the pipe line.
All of the business, activities and operations of the Plantation Pipe Line Company in Alabama are carried on solely in furtherance of and are inherent, integral and necessary parts of the interstate transportation of petroleum products. All of the property of Plantation Pipe Line Company located in Alabama, both real and personal, is committed to and used solely in said interstate business. Plantation does not, and did not in 1952, engage in any local or intrastate business or activity whatsoever in Alabama.
Plantation Pipe Line Company has paid all ad valorem taxes assessed by proper state authority on its property located in Alabama, income taxes to the State of Alabama on its net income allocated to the interstate business done by Plantation Pipe Line Company in Alabama and unemployment compensation taxes with respect to its employees in Alabama. Prior to 1952, Plantation Pipe Line Company had paid into the State of Alabama ad valorem taxes aggregating $384,866.74; income taxes aggregating $144,466.06 and unemployment compensation taxes aggregating $26,653.88. For the year 1952, it paid ad valorem taxes of $97,219.36; income taxes of $19,408.59, and unemployment compensation taxes of $1,268.55.
On January 7, 1952, Plantation Pipe Line Company made application for a permit and paid, under protest, to the State Department of Revenue a permit fee for the year 1952 in the amount of $100, disclaiming any desire for a permit to do or any intent to do any business in Alabama except that of interstate commerce.
Plantation Pipe Line Company duly filed on forms prescribed by the State Department of Revenue a franchise tax return for the year 1952, stating on the face of the return that the kind of business conducted in Alabama was interstate transportation by pipe line of products refined from petroleum and disclaiming the transaction of or any intention of transacting any local *554 or intrastate business in Alabama. After hearing protests on behalf of Plantation Pipe Line Company against the assessment of any franchise tax for the year 1952, a final assessment in the amount of $22,655 was made by the State Department of Revenue on November 21, 1952.
The trial court made no findings of fact with reference to the issue of res adjudicata raised by the State. As was said, this matter will be separately considered later in this opinion.
The questions involved in this case may be stated as follows: (1) Was Plantation Pipe Line Company engaged solely in interstate commerce in Alabama in 1952? (2) Assuming that the first question is answered in the affirmative, does the Alabama Foreign Corporation Franchise Tax purport to levy a tax on a foreign corporation engaged solely in interstate commerce in Alabama? (3) Is the Alabama Franchise Tax as here imposed unconstitutional as violative of the Interstate Commerce Clause of the United States Constitution, art. 1, § 8, cl. 3? (4) Are the proceedings with respect to the 1942 Franchise Tax res adjudicata on the issue in this case? The court held the answer to question one to be in the affirmative, to question two in the negative, to question three in the affirmative and the answer to question four to be in the negative.
I. Was Plantation Pipe Line Company engaged exclusively in interstate commerce in Alabama in 1952? With respect to this issue the lower court concluded:
Taking the undisputed facts in the case, we consider that the court correctly held that Plantation was engaged exclusively in interstate commerce in Alabama in 1952.
In Spector Motor Service, Inc., v. O'Connor, 340 U.S. 602, 71 S. Ct. 508, 95 L. Ed. 573, the Supreme Court of the United States held Spector was engaged exclusively in interstate commerce in Connecticut. The facts upon which this conclusion was based were clearly stated by the Supreme Court of Connecticut in Spector Motor Service, Inc., v. Walsh, 135 Conn. 37, 61 A.2d 89, as follows:
It is obvious from this statement of the Connecticut Court that the activities of Spector in Connecticut were substantially similar to the activities of Plantation in Alabama in 1952. Spector was a common carrier of freight in interstate commerce. Plantation is a common carrier of petroleum products in interstate commerce. Spector had employees in Connecticut, some of whom solicited business, straightened out complaints and in general promoted the plaintiff's business. Plantation had employees in Alabama who were engaged solely in the construction, maintenance and operation of its pipe line. Spector had two terminals in Connecticut at which goods destined for Connecticut consignees were unloaded from large trucks for further transportation by smaller pickup trucks or at which goods to be shipped out of the state were brought by pickup trucks so that they could be loaded into large trucks. The products carried by Plantation are delivered direct to the shipper by Plantation at delivery terminals in Alabama. Spector used pickup trucks registered in its own name with the Motor Vehicle Department of Connecticut. Plantation used trucks with Alabama license tags for purposes directly connected with the construction, maintenance and operation of its pipe line. Spector had to maintain its facilities and equipment in Connecticut. Plantation had to maintain its pipe line in Alabama. Spector received goods for shipment in Connecticut. Plantation did not receive in Alabama any products for shipment.
As we understand the situation the State insists that the operation of the lateral lines from Helena to Birmingham and Montgomery is not interstate commerce. This overlooks the indisputable fact that the product moving in such lines is received by Plantation at Baton Rouge, Louisiana, for transportation to Birmingham and Montgomery as tariff destinations, and that such lines are an integral part of its interstate transportation system. Spector maintained two terminals in Connecticut where goods were brought from out of the state in large trucks. The goods were unloaded from such large trucks at the terminal and then placed on smaller trucks for delivery to the ultimate consignee but this was held to be merely a necessary and incidental part of the interstate delivery and not intrastate commerce. It certainly appears that Plantation's use of smaller lines to deliver products received by it in Baton Rouge, Louisiana, is no less incidental and necessary to the completion of its interstate delivery.
In Ozark Pipe Line Corporation v. Monier, 1925,266 U.S. 555,45 S. Ct. 184,69 L. Ed. 439, the activities of the corporation in Missouri were described by the court substantially as follows. Ozark Pipe Line Corporation was a Maryland corporation which owned and operated a pipe line extending from within Oklahoma through Missouri to points in Illinois, with certain lines in Oklahoma. Through this line crude petroleum was conducted to Illinois and there delivered. Oil was neither received nor delivered within the State of Missouri. Since it began its operation it had been assessed and had paid general property taxes upon that portion of its line and upon its other assets in Missouri. It maintained its principal office in Missouri where it kept its books and bank accounts from which it paid its employees within and without the State, purchased supplies, employed labor, maintained telephone and telegraph lines, entered into contracts for transportation of crude oil and carried on various other activities connected with and in furtherance of its pipe line operation. Along the pipe line in Missouri there were three pumping stations, the sole use of which was to accelerate the passage of oil through the line. It owned and operated passenger and truck automobiles but these, as well as its other property in Missouri, were used exclusively in prosecution of its interstate business. In *557 compliance with the Laws of Missouri, applicable to corporations formed in other states desirous of transacting business in Missouri, it filed with the Secretary of the State its articles of incorporation and amended articles, paid license taxes and obtained a license and authority to engage "`exclusively in the business of transporting crude petroleum by pipe line.'" 266 U.S. at page 561, 45 S.Ct. at page 185, 69 L.Ed. at page 441. It thereby acquired the right of eminent domain under the Laws of Missouri. Missouri sought to impose a franchise tax "upon the privilege or right to do business". 266 U.S. 562, 45 S. Ct. 185, 69 L. Ed. 442. It was held that Ozark was engaged solely in interstate commerce.
The facts of the Ozark case and the facts of the instant case are similar in that in the state which sought to impose the tax both companies owned and operated a pipe line, both had pumping stations to accelerate the passage of the product through the line, both carried essentially the same product, both employed labor and maintained communications facilities in connection with the operation of the pipe line, both owned and operated trucks which were used exclusively in prosecution of its interstate business, both paid the ad valorem taxes assessed by the taxing authorities and both were qualified to do business in the state in which the tax was sought to be imposed.
A study of the difference in the facts between the Ozark case and the facts in the case at bar is worthwhile. Ozark maintained in Missouri its principal office where it kept its books and bank accounts from which it paid its employees within and without Missouri. Plantation maintained its principal office at Atlanta, Georgia, and kept no books or records in Alabama except such as were necessary to the transportation and delivery of products in Alabama. Ozark entered into contracts for the transportation of products in Missouri. Plantation did not enter into any contracts in Alabama for the transportation of products. It seems to us conclusive that if Ozark was engaged exclusively in interstate commerce in Missouri under the facts outlined above, and it was so held by the Supreme Court of the United States, then Plantation necessarily was engaged exclusively in interstate commerce in Alabama in 1952.
In United Air Lines, Inc. v. Joseph, 282 App.Div. 48, 121 N.Y.S.2d 692, affirmed 307 N.Y. 762, 121 N.E.2d 557, United Air Lines operated in many states from coast to coast and even beyond the continental boundaries of the United States. Its main and financial office was in Illinois, its chief maintenance base in Wyoming. It carried air mail, passengers and freight in interstate and foreign commerce. It carried no intrastate traffic in New York. The sale of passenger tickets in New York City averaged over $2,000,000 each year. It was estimated that an equal amount was sold outside the city for transportation into the city. It operated in New York City the usual facilities including three traffic offices, a hangar, a stock room of parts and supplies and a repair and maintenance shop. It employed about 300 persons in New York City including a district traffic manager.
It was contended that the vast business establishment of the United Air Lines within the city as has been described, "the depositing and checking out of moneys in local banks, the handling of baggage and the conveniences of passengers at the terminal, * * * constitute such a separation, distinction and localizing of its generally interstate operations as to subject" United Air Lines to a tax by the city on its gross receipts.
In holding that the United Air Lines was engaged solely in interstate commerce in New York the court held:
It is well to observe that United maintained in New York City stock rooms of parts or supplies and a repair and maintenance shop, and it was held that those aspects of its business could not be "localized" and disassociated from its interstate operations. So in the present case, the existence of a warehouse at Helena where there are stored goods necessary for the operation of the pumping and other transportation facilities located there does not change the fact that Plantation is engaged solely in interstate commerce in Alabama.
*559 The State emphasizes the fact that Plantation owned at each pumping station and stand-by facility a house which was rented, for less than the amount of depreciation and repairs, to the person in charge of the facility who was required to be on duty or on call for duty twenty-four hours a day. In Texas Gas Transmission Corp. v. Atkins, 197 Tenn. 123, 270 S.W.2d 384, Texas Gas had in Tennessee compressor stations, meter men and dispatchers, maintenance camps, materials and supplies, rights of way, easements and permits to cross highways, etc., and all other facilities necessary for the operation of a gas pipe line. Yet it was held to be engaged solely in interstate commerce in Tennessee. It certainly follows that if the presence of maintenance camps in Tennessee was not held to be doing a local or intrastate business, the ownership of one house by Plantation at each pumping and stand-by facility could not be so held.
The State also emphasizes that there were tank facilities at Helena. The seventeen tanks at Helena are integral parts of the transportation system. They are necessary to insure that the identity of the products being transported to Birmingham and Montgomery will be maintained. Quantities of products destined for Birmingham and Montgomery are not sufficient to require the constant use of the lines to those two terminals and, therefore, such terminals are not always open. Products which are destined for either Birmingham or Montgomery stay in the tanks at Helena for an average of two or three days before being placed in the branch pipe line to either of these delivery terminals. While the shipments are held at Helena they are still in the course of interstate transportation. The shipments are never stored at Helena at the request of a shipper. So we point to the recent opinion of the Supreme Court of Illinois in Mississippi River Fuel Corp. v. Hoffman, 4 Ill. 2d 468, 123 N.E.2d 503, 505, certiorari denied Wright v. Mississippi River Fuel Corp., 349 U.S. 935, 75 S. Ct. 785, 99 L. Ed. 651, wherein the court said:
Far more mechanically necessary than the gas storage fields referred to in the foregoing authority, the Helena tanks are essential parts of the transportation facilities *560 required by the special and highly developed technique of pipe line transmission. They are in no sense merely optional storage facilities. The interstate transportation could not take place without them any more than railroad freight could be handled without classification yards and side tracks.
Even in the situation where gasoline is brought into a state by truck or rail and put into storage tanks pending further distribution to ultimate consumers in a regular "flow of trade," interstate commerce is not interrupted. Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 238, 71 S. Ct. 240, 95 L. Ed. 239, 245.
It cannot be asserted that interstate commerce, to be immune from taxation, must be conducted in some sort of vacuum without tangible property, personnel or incidental activities within the boundaries of the state. The fallacies of such contention was demonstrated in Ozark Pipe Line Corporation, supra, where the Court said:
A consideration of the foregoing authorities causes us to reach the conclusion that Plantation was engaged exclusively in interstate commerce in Alabama in 1952.
II. The Alabama franchise tax on foreign corporations is not applicable to foreign corporations doing an exclusively interstate business in Alabama. In Anglo-Chilean Nitrate Sales Corp. v. State of Alabama, 288 U.S. 218, 53 S. Ct. 373, 374, 77 L. Ed. 710, the court held that the Alabama franchise tax on foreign corporations is laid upon the actual doing of business and "not upon the authorization, right, or privilege to do business in Alabama". It will be recalled that a permit to do business in Alabama was issued by the state authorities under protest of Plantation on the ground that it was engaged in doing an exclusively interstate business in Alabama.
A study of the history of the franchise tax, including amendments made after the Anglo-Chilean decision, supra, and the constitutional provision under which it was levied and the decisions of this court demonstrate to us that the franchise tax on foreign corporations is only applicable to foreign corporations actually doing an intrastate business in this State.
Article XIV, Section 4, of the Constitution of 1875 provided:
Article 12, Section 232, of the Constitution of 1901 provides:
These sections relate to a foreign corporation that "does business" in Alabama or to foreign corporations that "do any business in this state". The decisions of this Court hold that these words are construed as holding that a foreign corporation doing an exclusively interstate business in Alabama does not "do any business in this state" and that the constitutional provision is not applicable to such a corporation. Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 So. 136; Nelms v. Edinburg-American Land Mortgage Co., 92 Ala. 157, 9 So. 141; Hurst v. Fitz Water Wheel Co., 197 Ala. 10, 72 So. 314; Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 73 So. 403; Cobb v. York Ice Machine Corp., 230 Ala. 95, 159 So. 811 and Ewart Lumber Co. v. American Cement Plaster Co., 9 Ala.App. 152, 62 So. 560. This Court well stated the rule in the Hurst case supra, when it said, "The constitutional and statutory provisions under consideration were not intended and cannot be made to interfere with, or to apply to, interstate commerce."
The Constitution of 1901 provides for the payment of a franchise tax by "such corporation." The words "such corporation" can only apply to foreign corporations that "do any business in this state" or to a foreign corporation that "does business" in Alabama. As previously shown, these words do not apply to a foreign corporation doing exclusively an interstate business in Alabama.
In 1907 the legislature levied, Act No. 334, General Acts of 1907, p. 418, a franchise tax on "every foreign corporation authorized to do business in this State under the laws of the State of Alabama, except strictly benevolent, educational or religious corporations". After the 1907 Act was declared unconstitutional in Southern Railway Co. v. Greene, 216 U.S. 400, 30 S. Ct. 287, 54 L. Ed. 536, the legislature enacted the forerunner of our present franchise tax law, Section 12 of Act No. 216, Acts of 1911, p. 170. As for domestic corporations the Act provided for a franchise tax on "All corporations organized under the laws of this State". As for foreign corporations the Act provided for a franchise tax on "All corporations organized under the laws of any other State, nation or territory, and doing business in this State". While the language of the franchise tax statute has changed some since 1911, the quoted words have always been contained in each statute. Since 1911 the enactment of the foreign franchise tax "implementing [State v. Travelers Ins. Co., 256 Ala. 61, 53 So. 2d 745, 746] this constitutional provision" has been "In conformity to the mandate of the Constitution", State v. Jackson Securities & Inv. Co., 243 Ala. 83, 8 So. 2d 573, and "in the words of the Constitution, indicating the purpose of the Legislature to make the statutory levy conform with the Constitution." International Paper Co. v. Curry, 243 Ala. 228, 9 So. 2d 8, 11. The words "doing business in this State" as used in the franchise tax cannot have any different meaning from the words "do any business" or "does business" in the Constitution.
Before the enactment of any franchise tax in Alabama this Court held that a license tax "for `doing business as a corporation'" was a tax for "`doing business as a corporation,' and not for the mere privilege of existing as a corporation." State v. Anniston Rolling Mills, 125 Ala. 121, 27 So. 921. This decision establishes a basic distinction. The Court distinguished between a tax on the privilege of using the corporate *562 form and a tax on the actual doing of business and held that a tax imposed on "`doing business as a corporation'" was a tax on the actual doing of business and not merely on the corporate privilege.
The question now under discussion came before this Court in State v. National Cash Credit Association, 224 Ala. 629, 141 So. 541, 545, where the taxpayer argued in brief that,
In response to this argument this Court on rehearing held:
This is an express holding that the Alabama franchise tax on foreign corporations is only applicable when the foreign corporation is doing business in Alabama. The holding of the United States Supreme Court in the Anglo-Chilean case, supra, is in harmony with the decision of this Court in the National Cash Credit Association case, supra. The United States Supreme Court held that the Anglo-Chilean Nitrate Sales Corporation was engaged solely in interstate commerce in Alabama and that therefore the Alabama foreign corporation franchise tax was not applicable to such corporation, even though it had qualified to do business in Alabama.
In State v. Southern Natural Gas Corporation, 233 Ala. 81, 170 So. 178, 190, this Court again reviewed the Alabama franchise tax as it existed prior to the 1935 amendment, General Acts 1935, p. 388. After considerable discussion it was said, "We hold that the franchise tax here exacted and being considered is * * * laid on the exercise of corporate functions, or on the privilege of exercising corporate functions within the state". The Court held that Southern Natural was doing an intrastate business in Alabama and was therefore liable for the tax. If the tax had been laid merely on the right of a foreign corporation to exercise its functions solely within the State of Alabama or the right to do business in Alabama in corporate form, the Court could have held the tax applicable without considering or deciding the question of whether or not the company was doing an intrastate business since Southern Natural had qualified in Alabama and thus obtained such rights. The Southern Natural Gas case was affirmed by the United States Supreme Court, 301 U.S. 148, 57 S. Ct. 696, 698, 81 L. Ed. 970, after it found that Southern Natural "carried on in Alabama activities of an intrastate character."
After the decision in the Anglo-Chilean case the Alabama legislature in 1935 added Section 318 of Act No. 194, General Acts of 1935, p. 388, containing the following proviso to the foreign corporation franchise tax:
This proviso has remained a part of the law ever since. Section 348, Title 51, Code of 1940.
This proviso makes it clear that after 1935 the Alabama franchise tax is not, if it ever was, laid on the bare right of a foreign corporation to exercise its corporate functions within the State of Alabama or the right to do business in Alabama in corporate *563 form. If the tax was applicable to any foreign corporation which had qualified to do business in Alabama, even though the business done was exclusively interstate, there was no need for the proviso, as such a corporation had the right to exercise its corporate function within the State and the right to do business in Alabama in corporate form. In other words, the proviso is an express legislative recognition of the fact that a foreign corporation must be doing some intrastate commerce before the tax is applicable. The Act makes the fact of qualification merely prima facie evidence of such intrastate commerce, recognizing that the bare fact of qualification would not be conclusive. It is clear, therefore, that a corporation engaged exclusively in interstate commerce is not intended to be subject to the tax. The decisions rendered since the enactment of the proviso also make it clear that a foreign corporation must be doing some intrastate commerce in Alabama before it is subject to the tax. Consolidated Coal Co. v. State, 236 Ala. 489, 183 So. 650.
In Hollingsworth & Whitney Co. v. State, 241 Ala. 96, 1 So. 2d 387, 388, the franchise tax as amended was before the Court and this Court said: "The franchise tax is not a condition or qualification to `doing business'" and "We have often noted that this tax is an excise for the privilege of doing business in Alabama." And analyzing the record further the court continued: "We think that this status shows a doing of business in Alabama, by the taxpayer, so as to subject it to a franchise tax."
We are satisfied that the franchise tax is only applicable to foreign corporations doing intrastate business in Alabama.
III. The Alabama franchise tax if applicable to a foreign corporation engaging exclusively in interstate commerce in Alabama would be unconstitutional. The question here presented is controlled by the recent decision of the Supreme Court of the United States in Spector Motor Service, Inc., v. O'Connor, 340 U.S. 602, 71 S. Ct. 508, 95 L. Ed. 573. In that case the same kind of tax with the same operating incidence as the Alabama tax involved in this case was held invalid. The foregoing decision is the result of lengthy litigation in which the various facts and issues were fully considered. It appears that there were seven decisions rendered before the Supreme Court of the United States finally held that the Connecticut franchise tax contravened the Commerce Clause when applied to a corporation qualified to do business in Connecticut, doing exclusively an interstate business. We cite these decisions because they will add an understanding to the final decision.
The Connecticut Corporation Business Tax of 1935 imposed a tax upon every corporation "carrying on business in this state". Gen.St.Supp. Conn. 1935, § 418c. This act was amended in 1937 so as to impose the tax on every corporation "carrying on, or having the right to carry on, business in this state". Gen.St.Supp. Conn. 1939, § 354e. We refer now to Spector Motor Service, Inc., v. McLaughlin, D.C., 47 F. Supp. 671; Spector Motor Service, Inc., v. Walsh, 2 Cir., 139 F.2d 809; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101; Spector Motor Service, Inc. v. Walsh, Tax Commissioner of Conn., 15 Conn.Sup. 205; Spector Motor Service, Inc., v. Walsh, 135 Conn. 37, 61 A.2d 89; Spector Motor Service v. McLaughlin, D.C., 88 F. Supp. 711; Spector Motor Service, Inc., v. O'Connor, 2 Cir., 181 F.2d 150.
This brings us to a consideration of the final decision of the Supreme Court of the United States which granted certiorari "because of the fundamental nature of the issue and the apparent conflict between the judgment below and previous judgments of this Court." 340 U.S. 602, at page 605, 71 S. Ct. 508, at page 510, 95 L. Ed. 573, at page 576. A brief resume of the basic positions of the various Federal judges who considered the matter will bring into proper *564 perspective the conflict of views presented to the Supreme Court of the United States. On the one hand, Judges Clark and Frank, constituting the majority of the Second Circuit, felt that decisions such as Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S. Ct. 546, 82 L. Ed. 823, Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 68 S. Ct. 1475, 92 L. Ed. 1832 and Interstate Oil Pipeline Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, decisions which are relied upon by the State in this case, indicated a trend toward a holding of constitutionality and a departure from earlier precedents such as Ozark Pipe Line Corp. v. Monier, 266 U.S. 555, 45 S. Ct. 184, 69 L. Ed. 439, and Alpha Portland Cement Co. v. Commonwealth of Massachusetts, 268 U.S. 203, 45 S. Ct. 477, 69 L. Ed. 916. On the other hand, Judges Hand (first appeal) and Swann of the Circuit Court (second appeal) and Smith of the District Court followed what Judge Hand so aptly called [139 F.2d 822] "`an unbroken line of decisions'", which included the Ozark and Alpha Portland cases.
The Supreme Court adopted the interpretation of the Supreme Court of Connecticut as to the incidence of the tax and pointed out that its decision as to the validity of the tax was the same without regard to the amendment. In holding that the tax as applied to Spector Motor Service, which was engaged, according to the Court, exclusively in interstate commerce, contravened the Commerce Clause of the United States Constitution, the Court, speaking through Justice Burton, said:
Justices Clark, Black and Douglas dissented on the ground that a tax even on exclusively interstate commerce is valid when fairly apportioned and nondiscriminatory.
In holding that a tax upon the franchise of a corporation for the privilege of carrying on or doing business was unconstitutional when applied to a qualified foreign corporation engaged exclusively in interstate commerce, the Court followed that "`unbroken line of decisions'", including Ozark Pipe Line Corp. v. Monier, supra, and Alpha Portland Cement Co. v. Commonwealth of Massachusetts, supra, Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S. Ct. 815, 91 L. Ed. 993, and Freeman v. Hewitt, 329 U.S. 249, 67 S. Ct. 274, 91 L. Ed. 265. The first two of these cases had been considered by a majority of the Second Circuit to be outmoded by recent "trends." However, the Supreme Court reaffirms or, as one commentator (20 Ford L.R. 217 at 218) put it, "explicitly `restores to full vigor'" the decisions in Ozark Pipe Line Corp. and Alpha Portland Cement Co., supra.
In an effort not to prolong unreasonably this opinion, attention will be directed to only one of the foregoing cases, namely, Ozark Pipe Line Corp. v. Monier, supra, as the facts of that case closely parallel the facts in the case now before us.
The Supreme Court of the United States in the following manner stated the position of the taxing authorities:
However the Court held that Ozark Pipe Line Corporation was not liable for the tax and said:
The opinion of the Supreme Court in the Spector case clarifies the disparity of views between the Justices that appeared in 1949 in the case of Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 1266, 93 L. Ed. 1613. The facts of the case are simple. A Delaware corporation owned and operated pipe lines in Mississippi. It picked up oil in the oil fields in Mississippi and transported it to railroad loading tracks also in Mississippi. At the loading tracks the oil was pumped into railroad cars for shipment out of the State. The pipe line company acted as agent of the owners of the oil in transporting it and in arranging with the railroad for the out-of-state shipment. The State of Mississippi imposed "annual privilege taxes, measured by the amount or volume of business done," Code 1942, § 10105, upon a wide variety of enterprises. With respect to persons transporting oil or gas in pipe line for compensation or hire between two points in the State, the tax levied was 2% of the gross income of the business. The Mississippi court held this tax validly applicable to the business of the pipe line company.
Mr. Justice Rutledge delivered an opinion in which he was joined by Justices Black, Douglas and Murphy. These Justices found it unnecessary to decide whether the activity of the pipe line company was technically interstate or intrastate commerce; in either event, they said, Mississippi had the power to impose the tax. They rejected the contention that the tax was invalid merely because it imposed "a `direct' tax on the `privilege' of engaging in interstate commerce" and argued that the Commerce Clause did not invalidate the tax. This position was not accepted by a majority of the court and was repudiated by the Spector case.
In a separate opinion Mr. Justice Burton concluded that the tax was upon the privilege of transporting oil in intrastate rather than interstate commerce. Such conclusion enabled him to uphold the validity of the tax without further consideration of its actual effect upon interstate commerce. On that basis he stated that it was unnecessary to decide whether or not a privilege tax could validly be imposed upon the privilege of transporting oil in Mississippi in interstate commerce. He expressly *567 refused to join in Mr. Justice Rutledge's opinion.
Mr. Justice Reed delivered an opinion in which he was joined by Chief Justice Vinson and Justices Frankfurter and Jackson. In the first part of the opinion he concluded that the pipe line company actually was engaged in interstate commerce. In the second part of the opinion he concluded that a privilege tax for carrying on a wholly interstate transportation business measured by a fairly apportioned part of the gross receipts was invalid. In so concluding he observed:
So by virtue of the limited approval of Mr. Justice Burton of the Mississippi Court's decision, and not for the reasons advanced by Justice Rutledge, did the decision of Justice Rutledge temporarily (until Spector) become the decision of the Court.
In the Spector case the Court followed the opinion of Mr. Justice Reed in the Interstate Oil Pipe Line case, and not that of Mr. Justice Rutledge. Thus, the quotations from the Interstate Oil Pipe Line case in the State's brief are now not controlling and Justice Reed's pertinent statement quoted above controls the decision in the case at bar. Later decisions of the Supreme Court of the United States and other decisions since Spector have reaffirmed without question that the holding that a tax on the privilege of doing an exclusively interstate business contravenes the Commerce Clause of the Constitution of the United States. Memphis Steam Laundry Cleaner, Inc., v. Stone, 342 U.S. 389, 72 S. Ct. 424, 96 L. Ed. 436; Railway Express Agency, Inc., v. Commonwealth of Virginia, 347 U.S. 359, 74 S. Ct. 558, 98 L. Ed. 337.
In the case at bar the State has sought to emphasize the fact that Plantation has qualified to do business in Alabama and has obtained an annual permit. These facts are immaterial. Plantation qualified and sought under protest a permit to engage only in "interstate transportation by pipe line of products refined from petroleum." In the Spector case, Spector qualified to do business in Connecticut and the tax was on the doing of business and the privilege of doing business. As a matter of fact Plantation has followed the exact procedure followed by the taxpayer in Ozark Pipe Line Corp. v. Monier, supra, in which the imposition of the tax was held invalid.
We note that the State also relies upon decisions by this Court in Sanford v. City of Clanton, 244 Ala. 671, 15 So. 2d 309, and Sanford v. City of Andalusia, 256 Ala. 507, 55 So. 2d 856. These cases are *568 clearly not applicable in the case at bar since in these cases there is no tax or burden upon commerce. The burden falls and the duties are laid not upon the transportation but upon the delivery as an act in consummating a sale between persons who may or may not have an interest in the transportation but whose relationship is exclusive of transportation. And so we say again that imposition of the Alabama franchise tax in the case at bar is unconstitutional and void and this brings us to the last question in the case in which the State contends that the proceedings in regard to the 1942 franchise tax are res adjudicata in this case.
IV. The appellant appears to insist upon its plea of res judicata claiming that the decree in the Plantation Pipe Line case involving the 1942 franchise taxes, Case No. 13040, is binding upon Plantation with respect to its franchise tax for 1952.
It appears that by agreement between Plantation Pipe Line and the State, Plantation settled its tax liability for 1942-48 for franchise taxes and permit fees. The agreement of the parties with respect to that settlement is set forth in a letter dated December 30, 1948. The agreement, according to this letter, provided:
The letter is dated December 30, 1948. It states that a consent decree dismissing the appeal with respect to the year 1942 initialed by the attorney for Plantation at a conference in Montgomery on December 28th will be entered today or tomorrow. The consent decree which was entered on December 30, 1948, bears in the lower lefthand corner opposite the Judge's signature "OK J.F.J." It now appears that there is a misunderstanding about the matter and the State takes the position that the statement contained in the letter is purely unilateral as there is no evidence to the effect that the State ever agreed to any such thing. The lower court made no finding or determination as to any question of fact in connection with the settlement of Plantation's 1942 franchise tax liability. Accordingly, we are unable to say that the present suit is concluded by the former adjudication since we do not know that the matters of the two suits are the same and the issues in the former suit were broad enough to have comprehended all that is involved in the second suit. Tankersley v. Pettis, 71 Ala. 179.
There is an annotation on the question of "Judgment in tax cases in respect of one period as res judicata in respect to another period" in 150 A.L.R., beginning at page 5. A statement of applicable principles as here set forth is sufficient to disclose that the consent decree with respect to the 1942 franchise tax is not res judicata in this proceeding.
The settlement with respect to 1942 was by agreement. Assuming that the State is not legally bound by agreement that Plantation would have the right to litigate with respect to other years, there is no finding in connection with 1942 specifying the grounds upon which the conclusion as to taxability was predicated. In fact there is no judicial finding or determination as to any question of fact in connection with the agreed settlement of Plantation's 1942 franchise tax liability.
In Gillespie v. Commissioner of Internal Revenue, 10 Cir., 151 F.2d 903, 906, the court in speaking of the doctrine of res judicata, said:
Under the circumstances we do not consider that the consent decree of 1942 constitutes res adjudicata of the issues in the present case.
It results that the decree of the lower court is due to be affirmed.
Affirmed.
MERRILL, J., concurs.
LIVINGSTON, C. J., concurs in the result.
LAWSON, J., concurs specially.
LAWSON, Justice (concurring specially).
I concur in the opinion prepared for the Court by Mr. Justice STAKELY except insofar as it treats of the constitutionality of the statutes here involved. Since the Court holds those statutes to be applicable only to intrastate business and that the taxpayer is engaged exclusively in interstate business, there is no occasion to write to the constitutional question as to whether those statutes would be constitutional if construed as applying to interstate commerce. We have a long line of cases which hold that the constitutionality of a statute will not be determined unless absolutely necessary to determine the merits of the suit in which the constitutionality of such statute has been drawn in question. Smith v. Speed, 50 Ala. 276; Shehane v. Bailey, 110 Ala. 308, 20 So. 359; Smith v. Mc-Queen, 232 Ala. 90, 166 So. 788; State ex rel. Bland v. St. John, 244 Ala. 269, 13 So. 2d 161; Moses v. Tarwater, 257 Ala. 361, 58 So. 2d 757; Donaghey v. Owen, 259 Ala. 376, 66 So. 2d 895. See Alabama State Federation of Labor, Local Union No. 103, etc., v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725. The opinion in this case shows no reason why this salutary rule is not applicable and I feel that to ignore that rule will result in having the instant case cited in the future as showing that the Court followed the rule only when it feels it convenient to do so. | August 2, 1956 |
1cf50cf6-f104-4d28-910e-0321eb0124ef | State v. Dawson | 89 So. 2d 103 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 103 (1956)
STATE of Alabama
v.
N. H. DAWSON et al., d/b/a Merchants Candy & Notions Co.
8 Div. 870.
Supreme Court of Alabama.
August 2, 1956.
*104 John Patterson, Atty. Gen., Willard W. Livingston and James R. Payne, Asst. Attys. Gen., for appellant.
John R. Barnes, Florence, for appellees.
LAWSON, Justice.
This is an appeal by the State from a final decree of the Circuit Court of Lauderdale County, in Equity, vacating and setting aside a sales tax assessment made by the State Department of Revenue against the appellees, to whom we will refer sometimes hereafter as the taxpayer.
The question for decision here is whether the trial court was correct in holding that under the facts presented the taxpayer was entitled to the exemption provided by Act No. 587, approved August 30, 1951, Acts of Alabama 1950 and 1951, Volume 2, p. 1020. See Cumulative Pocket Part to Volume 7 of the Code of 1940, p. 371, where the provisions of the 1951 Act, supra, have been designated by the publisher as § 755(9), Title 51, Code of 1940.
The pertinent provisions of the 1951 Act, supra, read:
For the purposes of this appeal it is agreed that the assessment involved is based only on sales of peanuts, peanut products, candy and chewing gum, made from dispensing machines operated by the taxpayer subsequent to the effective date of the 1951 Act, supra, which machines were located "in industrial plants or on private property for employees" and that the machines dispensed exclusively articles which did not sell for more than ten cents a sale. It was also agreed that the taxpayer kept proper records and made the required statement.
But it is without dispute in the evidence that all during the period of time covered by the assessment the taxpayer was engaged in the business of selling at wholesale, articles which sold for more than ten cents per sale. It is because of this business activity that the State contends that the taxpayer is not entitled to the claimed exemption.
*105 It is the theory of the taxpayer, accepted by the court below, that the part of the proviso of the 1951 Act which we have italicized above, operates to deprive a taxpayer of the exemption only where such taxpayer has been engaged in the retail business of selling articles for more than ten cents a sale. The argument in support of this theory is in substance that since sales at wholesale are exempt from sales tax, the legislature in enacting the said proviso was not concerned with a taxpayer's wholesale operations. The appropriate office of a proviso is to restrain or modify the enacting clause, or proceding matter. Touart v. American Cyanamid Co., 250 Ala. 551, 35 So. 2d 484. The legislature, of course, has the right to restrict or limit the exemption provided in the act in such a manner and based on such conditions as it deems wise and proper.
To construe the exemption as contended by the taxpayer, it is necessary to prefix the word "retail" to the word "business" and we have said that the courts must confine themselves to the construction of the law as it is and not attempt to amend or change the law under the guise of construction. Holt v. Long, 234 Ala. 369, 174 So. 759; State v. Praetorians, 226 Ala. 259, 146 So. 411, 413.
The statute here in question is plainly written and to construe the proviso as having application only to retail business is to change the statute under guise of construction, an infringement upon the legislature's prerogative.
When language is plain and unambiguous, the meaning obvious, there is no room for construction. "`"Possible"'" or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere"'" State v. Praetorians, supra. Or, as has been said, in such cases, the courts "have no right `to stray into the mazes of conjecture or search for an imaginary purpose'". Holt v. Long, supra [234 Ala. 369, 174 So. 761]. See Hattemer v. State Tax Commission, 235 Ala. 44,177 So. 156; State v. Bay Towing and Dredging Co., Ala., 85 So. 2d 890.
The taxpayer is asking the courts to supply words not found in the statute itself and which could have been inserted therein by the legislature if it had intended so to do. The general rule with reference to a court supplying words said to be omitted from a statute, was quoted in our recent case of State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 66 So. 2d 726, where we refused to read into an exemption statute words which the State contended were intended to be included therein.
And in addition to these well-settled principles, there is yet another applicable though hardly necessary to stress. That is, the general rule that exemptions must be strictly construed in favor of the taxing power, though, of course, this rule does not call for a strained construction adverse to the real intention of the Legislature. Holt v. Long, supra; State v. Joe H. Brady & Associates, Ala., 87 So. 2d 852.
We are clear to the conclusion that to hold with the taxpayer in this case would be nothing short of judicial legislation under the guise of interpretation.
The views here expressed are not in accord with those prevailing in the court below. It results, therefore, that the decree of the lower court must be reversed. The cause is remanded with directions to the trial court to enter a decree denying the relief sought by the taxpayer.
Reversed and remanded with directions.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | August 2, 1956 |
001c358b-7095-4346-94f5-5b9fa140e296 | Sarber v. Hollon | 91 So. 2d 229 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 229 (1956)
H. E. SARBER et al.
v.
T. R. HOLLON, as father of Bryant Hollon, a minor.
3 Div. 770.
Supreme Court of Alabama.
November 29, 1956.
*230 Thos. F. Parker and J. O. Sentell, Jr., Montgomery, for appellants.
Glen T. Bashore, Clanton, and W. Clarence Atkeison, Prattville, for appellee.
PER CURIAM.
This is an appeal by H. E. Sarber and Willie Looney Messer, who were defendants in a suit for damages by plaintiff (appellee) suing as the father of Bryant Hollon, a minor, for injuries caused to him by Messer while acting in the line and scope of his authority as the agent, servant or employee "of the defendants"; the complaint alleging that he so negligently operated "defendant's truck," etc. See section 118, Title 7, Code.
The suit was tried on counts 4 and 5. They named as defendants "H. E. Sarber, Willie Looney Messer, John Doe, Richard Roe, A. B. Partnership and XYZ Corporation, whose names are unknown and will be added by amendment when ascertained," Service was had on Sarber and Messer. There was no amendment supplying the name of a partnership alleged to be represented by John Doe and Richard Roe as A. B. Partnership, nor the name of the corporation alleged to be the XYZ Corporation. No notice was taken apparently of the fictitious names in the progress of the trial. Sarber and Messer separately and severally demurred to counts 4 and 5. The demurrer was overruled. Thereupon the "defendant" came by counsel and pleaded in short by consent in the usual form. There were a jury and verdict and judgment for the plaintiff against "defendants". Those named defendants separately and severally moved for a new trial on stated grounds. The motion was overruled, to which exception was taken.
Appellants argue that neither count 4 or 5 states a cause of action for the reason which we will discuss, and on account of which the demurrer is directed. The demurrer asserts grounds which are in the main general in their nature. A *231 ground of demurrer that the complaint sets forth no cause of action is to that extent a general demurrer not authorized by section 236, Title 7, Code. United States Health and Accident Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; Alabama Power Co. v. Curry, 228 Ala. 444, 153 So. 634. We do not find a specific ground which properly points out that defect. Therefore, error cannot be predicated on overruling the demurrer insofar as that claim is concerned. But if those counts do not state a cause of action the court should have given the charges to the jury as requested by "defendant".
The particular which appellants claim renders counts 4 and 5 defective is that they each allege that "the defendant, Willie Looney Messer, the agent, servant or employee of the defendants, while acting within the line and scope of his employment so negligently" (count 4) or (in count 5 so wantonly) "operated the defendant's (sic) truck that it was caused to run into, upon or against the bicycle which said Bryant Hollon was then riding", etc. The argument is that the complaint is uncertain in alleging or identifying the particular defendant who was Messer's employer. Messer is a defendant. The allegation is that he was the "agent, servant or employee of the defendants". That means all the defendants, of whom Messer was one, and therefore that Messer was the agent, etc., of both Sarber and Messer. In construing the sufficiency of the complaint to state a cause of action, we must also note the allegations that John Doe and Richard Roe, A. B. Partnership and XYZ Corporation, whose names are alleged to be otherwise unknown, but will be added by amendment, are made parties. We suppose those allegations are based on section 136, Title 7, Code, which authorizes that procedure. That statute has been construed primarily "for cases in which the name of defendant was unknown (also) it is an emergency statute, and includes cases which neither the name nor the identity of defendant is known, as where the cause of action only is known, but the party liable is not, and there is need for immediate seizure of property", etc. It is also noted that such description authorizes an amendment giving the true name. McKelvey-Coats Furniture Co. v. Doe, 240 Ala. 135, 198 So. 128; Roth v. Scruggs, 214 Ala. 32, 106 So. 182.
In the instant case there was no amendment with respect to the real persons designated as John Doe and Richard Roe, nor the A. B. Partnership, nor the XYZ Corporation. But the complaint offered to give their true names later. The sufficiency of the complaint may be treated as having such persons parties defendant for the purpose of construing it as contended. We repeat, the allegation is that defendant Messer, "the agent, servant or employee of defendants, operated defendant's truck", etc. Whose agent was he? Whose truck was it?
In the case of Central of Georgia R. Co. v. Carlock, 196 Ala. 659, 72 So. 261, the allegation in the complaint was "that `defendant's' servant, acting within his authority, wrongfully arrested and imprisoned plaintiff". There were two defendants. The court held that the complaint stated no cause of action, and no valid judgment could be predicated on the count because "the court could not have known to which of the two defendants the derelict agent's wrong was ascribed by the pleading or was attributable as the basis for liability, under the doctrine of respondeat superior".
In the case of Corona Coal Co. v. Huckelbey, 204 Ala. 508, 86 So. 25, 26, the suit was by Huckelbey against Corona Coal Company and another. The complaint was for the negligence of the defendant or some person in the service of defendant. The court referred to the existence of two defendants but the complaint throughout referred to the defendant in the singular, and stated that "as framed, the count is entirely uncertain in whose servicewhich of these two defendantsthe plaintiff was at the time of the injury, or which defendant was in fact operating the mine".
*232 In the case of McKinley v. Campbell, 217 Ala. 139, 115 So. 98, the defendants were a named partnership, a named corporation, and a named individual doing business as said partnership, and the named person individually. By amendment the name of the corporation was stricken. That left as defendants the partnership and the individual doing business as such partnership. The complaint alleged that the defendant caused the damage, or that it was caused by "a servant, agent, or employee of the defendant". On the authority of Central of Georgia R. Co. v. Carlock and Corona Coal Co. v. Huckelbey, supra, the court held that the question was stare decisis, and that a demurrer to the complaint should have been sustained.
We have found no authority more directly in point, and we are not at liberty to set aside a principle so well established even if we were disposed to do so. The singular and plural are used interchangeably in the instant case. The statute, section 1, Title 1, Code, refers to the singular and plural as used in the Code. The above cited cases do not refer to that statute. But it cannot be said whether the singular or plural is here intended. If the singular, it is indefinite as to which one of the defendants was intended. If the plural, it would mean that the defendant Messer was acting for himself as one of his principals. My own feeling is that this is a technicality which serves no useful purpose. That theory was advanced by Justice Gardner in a dissent in Corona Coal Co. v. Huckelbey, supra, but all the other justices stood by Central of Georgia R. Co. v. Carlock, supra. There was no dissent in the McKinley case, supra, but it was acted on by a division of the court in which Justice Gardner did not participate.
Applying the principle stated in those cases, as we must, we think neither count 4 nor 5 states a cause of action, and the requested charges should have been given.
We also observe, as was noted in the Carlock case, supra, that the principal and agent may be jointly charged in a count in case alleging negligence of the agent, in which the principal did not otherwise participate. But that is not true when the count charges that the damages resulted from a trespass committed by the agent (such as an intentional or wanton injury). Such a count means that when a trespass by the agent is alleged and both the principal and agent are sued, the cause of action against the principal is in case, and against the agent is in trespass, and they cannot be joined in the same count. We have a long line of decisions to that effect. Sibley v. Odum, 257 Ala. 292, 58 So. 2d 896; Central of Georgia R. Co. v. Carlock, supra; Louisville & Nashville R. Co. v. Abernathy, 197 Ala. 512(7), 73 So. 103; Southern Ry. Co. v. Hanby, 166 Ala. 641, 52 So. 334; Southern Bell Tel. Co. v. Francis, 109 Ala. 224, on rehearing p. 231 et seq., 19 So. 1, 3, 31 L.R.A. 193.
But we are cited to the Act approved October 9, 1947 (section 138 [1], Title 7, pocket part, Code), which undertakes to change the effect of such a count. In some cases on appeal, there has been a strong contention that the statute, as so applied, is violative of the Constitution in respects not necessary to analyze in this case. Sibley v. Odum, 257 Ala. 292, 58 So. 2d 896; Acton v. Browne, 262 Ala. 615, 80 So. 2d 643. We shall defer that question until it becomes necessary to pass on it.
Attention is called to the feature of the court's oral charge in which the trial judge instructed the jury that punitive damages may be assessed in their discretion if they find for plaintiff under count 5 of the complaintthe wanton count. There was no exception to this feature of the charge. But it is insisted that the motion for a new trial should have been granted on account of the excessive amount of damages awarded, and that the jury must have added an amount for such punitive damages.
*233 The evidence shows that the boy was twelve years of age when injured; that he did not live with his father, the plaintiff, but had been living with his grandfather for nine years at the time of the accident. The actual amount expended or incurred by the father on account of such injuries was $1,153.76. There is no evidence that plaintiff had been receiving the benefit of the boy's services or would do so in the future, or an estimate of their value, or of the value of plaintiff's services while nursing the boy on account of such injuries, or that any such service was rendered. See Sloss-Sheffield Steel & Iron Co. v. Vinzant, 153 Ala. 212, 44 So. 1015; Birmingham Ry., Light & Power Co. v. Chastain, 158 Ala. 421, 48 So. 85. No recovery can be had for the loss of the child's society, Birmingham Ry., Light & Power Co. v. Baker, 161 Ala. 135, 49 So. 755; nor for punitive damages. Bube v. Birmingham Ry., Light & Power Co., 140 Ala. 276, 37 So. 285. It is apparent therefore that a verdict for $5,000 in favor of the father under section 118, Title 7, Code, was substantially excessive. But it is not appropriate to reduce the amount of it under section 811, Title 7, Code, since the judgment is being reversed for another cause. Therefore, that statute and the case of Hudson v. Stripling, 261 Ala. 180, 73 So. 2d 521, do not apply.
The other assignments of error argued by appellants do not seem to need treatment. It is sufficient to say that, except as herein pointed out, both counts 4 and 5 sufficiently charge negligence in one and wantonness in the other. Caruth v. Sparkman, 226 Ala. 594, 147 So. 884.
For the errors indicated, the judgment should be reversed and the cause remanded.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | November 29, 1956 |
f0807cba-1739-4cd2-adec-26fda2f930e2 | Bruner v. State | 91 So. 2d 224 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 224 (1956)
Jim O. BRUNER
v.
STATE of Alabama.
2 Div. 374.
Supreme Court of Alabama.
October 4, 1956.
Rehearing Denied December 13, 1956.
Mallory & Mallory, Selma, for petitioner.
John Patterson, Atty. Gen., and Robt. G. Kilgore, Jr., Asst. Atty. Gen., opposed.
SIMPSON, Justice.
This case is submitted to this Court on motion of the Attorney General to strike the petition for writ of certiorari and the brief of petitioner, and on the merits.
Motion to Strike
The motion to strike is grounded on the failure of petitioner to serve the Attorney General with a copy of the brief. We think the motion is well taken.
Rule 11 of Revised Rules of this Court regarding the signing and serving of briefs upon the adverse party provides:
Rule 39 of the Revised Rules regarding application for certiorari to the Court of *225 Appeals provides inter alia for the filing of a petition for such a writ and an accompanying brief.
It is quite apparent that one prerequisite for a consideration by this Court of a petition for such a writ is that the adverse party or his counsel should be served with a copy of the brief of petitioner within the prescribed fifteen day period, in accordance with New Rule 44 of the Revised Rules of this Court. Such was the import of old Rule 44, as construed by this Court, which provided that the brief on certiorari should contain a certificate "that a copy of said brief has been served on counsel for the other side." Burch v. State, 249 Ala. 72, 29 So. 2d 425, 426. We think a fair construction of Revised Rules 11 and 39 leads to the same result.
True, a copy of the petition for writ of certiorari and a copy of the brief in support thereof were served upon Hon. Blanchard McCloud, Solicitor of the 4th Judicial Circuit of Alabama, but he is not the attorney who represents the State in the Appellate Courts. This duty devolves upon the Attorney General. The pertinent statute provides that the Attorney General.
We think our conclusion is reinforced by the necessities of the case for the orderly transaction of such a proceeding, since without having a copy of the brief served on the Attorney General there is no other procedure whereby he would receive notice that a petition for certiorari to the Court of Appeals has been applied for.
Motion to strike granted.
All Justices concur. | October 4, 1956 |
cdcfae77-c8a1-4f60-80a3-514aef6e5a36 | Foster & Creighton Co. v. St. Paul Mercury Indem. Co. | 88 So. 2d 825 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 825 (1956)
FOSTER & CREIGHTON COMPANY
v.
ST. PAUL MERCURY INDEMNITY COMPANY.
6 Div. 567.
Supreme Court of Alabama.
June 30, 1956.
*827 Spain, Gillon & Young and John P. Ansley, Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
PER CURIAM.
This suit was filed by St. Paul Mercury Indemnity Company for its benefit and for the benefit of Mrs. June Fulton Robinson and her minor son, dependents of Robert Harold Robinson, Sr., deceased, against Foster & Creighton Company and others, under the provisions of the Workmen's Compensation Act, Title 26, § 312, Code of Alabama 1940, as amended. The complaint was in one count and alleged that Robert Harold Robinson, Sr., died as the result of injuries sustained in a fall through an opening in the third floor of the Phoenix Building Annex on July 27, 1950, due to the negligence of Foster & Creighton Company, a corporation, and the other defendants.
Pleading was in short by consent. Defendants pleaded the general issue, contributory negligence, assumption of risk, incurred risk of the deceased, and contributory negligence of the subcontractor, Shook & Fletcher Supply Company. The case was tried before a jury and a verdict rendered in favor of the appellees and against the defendant, Foster & Creighton Company, in the amount of $28,000.
Motion for a new trial was duly filed and was overruled. This appeal was perfected on March 27, 1953.
Appellant assigns as error, among others, the trial court's refusal to give the affirmative charge on behalf of the defendant. Appellant contends that the hole through which Robinson fell was an open and obvious danger which was well known to Robinson, whereas the duty which the appellant, Foster & Creighton Company owed to take was reasonable measures to prevent his injury due to a hidden danger only.
Appellees contend that the appellant was negligent in not erecting a barrier around the hole or providing a cover over the hole, and that the case was properly submitted to the jury on the issue of contributory negligence.
At the time of his death, Robinson was journeyman sheet metal worker and had been employed by Shook & Fletcher on the Phoenix Building job from six to eight weeks. During that time, he worked installing air conditioning ducts on the first, second and third floors, with most of the work being done in the northwest corner of those floors.
At the time he fell, Robinson was moving in a backward manner while he and two other men maneuvered a 12 or 14 foot length of duct into a position to be pushed up through one of the small holes to the fourth floor.
On original submission, this cause was assigned to Livingston, C. J., who prepared an opinion holding, in effect, that the plaintiff's evidence was insufficient to take the case to the jury. Upon consideration by the full court, Justices Lawson, Simpson, Stakely, Goodwyn, Merrill and Spann were of the opinion that the evidence did make a case for the jury. It is, therefore, necessary *828 to state the evidence in its most favorable light to the plaintiff-appellee. This we have done by taking appellee's statement of the facts contained in brief, and which is fully supported by the record. For a better understanding, we reproduce here a rough sketch not drawn to scale, showing the opening in the third floor of the Phoenix Building Annex. The opening designated "2" is the hole through which Robinson fell.
"It is undisputed that the appellant, Foster & Creighton Company, as contractor, entered into an agreement with the Phoenix Building Corporation, as owner, on December 27, 1949, under the terms of which appellant was to erect an addition to the then existing Phoenix Building, located at Second Avenue and 17th Street, North, in Birmingham, Alabama. The agreement contained the following pertinent provisions:
"Also made a part of the contract were certain `General Conditions of the Contract.' Article 12 thereof provided, in part, as follows:
"The Shook & Fletcher Supply Companythe employer of Mr. Robinsonhad a subcontract with appellant to install the air conditioning and heating system in the annex.
"The evidence is without dispute that Mr. Robinson, the deceased, was an employee of the subcontractor, Shook & Fletcher Supply Company, and was engaged in the performance of the duties of his employment at the time he was injured. It was stipulated by the parties that Mr. Robinson died as a result of the fall which he received on the occasion in question, and the death certificate was also received in evidence.
"The evidence was likewise without dispute that one J. B. Smith was Superintendent for appellant on the job, and was in charge of the whole job. He had a copy of the contract with the owner there on the job, and was familiar with its provisions giving the contractor full directing authority over the execution of subcontracts. It is further clear from the evidence adduced by appellant in the court below that appellant's superintendent exercised this authority with respect to the performance by Shook & Fletcher of its subcontract. When Shook & Fletcher first came upon the job, they started work on the first floor of the building. Their men worked on that floor a short time. But Smith stopped them from working on the first floor and directed them to work on the second, third, fourth, fifth, and then the first floor, in that order. Shook & Fletcher's men complied with these directions given by appellant's superintendent.
"The evidence further disclosed that appellant entered upon the performance of its duty to provide for the safety of workmen on the job. Without dispute, appellant provided a cover for the opening on the second floor, but the evidence on behalf of appellees was that this cover on the second floor had remained there about a week, and that no cover had been on the second floor for about two weeks, or longer, prior to the accident.
"The single witness for appellant testified that a cover had also been put on the opening at the third floor; but the evidence on behalf of appellees was to the effect that there never was a covering provided for the opening at the third floor. Every witness to the accident testified positively that at the time of the accident there was no cover, barricade or fence around the opening at the third floor. Appellant's witness Smith admitted on cross-examination that when he made an examination of the opening after Mr. Robinson had fallen, he *830 found no covers on it from the third floor down. He did not know how long the opening had been without covers prior to the accident. It was possible for it to have been open for a week without him knowing about it, although he was on all floors of the building every day.
"The evidence on behalf of appellees also showed that shortly before the accident according to one witness about twenty or thirty minutes before the accident occurreda carpenter had come up to the opening at the third floor, with tools and materials, to build a railing around the opening, but he had been called away by the foreman before the railing was built. The evidence by appellant's witness disclosed that any person making covers or rails to go around the holes would be people working for appellant. The evidence further showed that the employees of Shook & Fletcher on that job talked about the carpenter going to build the barricade there.
"It is undisputed that in construction jobs of this character it is customary to have guardrails or covers around or over openings of the type through which Mr. Robinson fell. The appellees' witnesses Bridges, Coggins, Hagood and Mason, and the appellant's witness Smith so testified, including the fact that such was good safety practice.
"The evidence was without conflict that at the time Mr. Robinson suffered the fall he and two other employees of Shook & Fletcher (Coggins and McDowell) were engaged in moving a section of duct from a point on the third floor approximately 20 to 25 feet from the opening through which Mr. Robinson fell to a point approximately 6 feet from the opening. Immediately prior to this movement, three of the Shook & Fletcher employees (Bridges, Coggins and Robinson) had been putting the section together. Bridges had then gone to a scaffold to guide the section through the hole it was to go in. Robinson, Coggins and McDowell were handling the section. The section of duct was about 12 or 13 feet long, approximately 18 by 30 inches in width and depth. This section also had an elbow at one end. This elbow was approximately 12 by 16 inches, and about 6 inches long. This section of duct was to be attached to another section of riser duct which had already been installed and extended up from the second floor to a height of about 18 inches above the level of the third floor. This duct was one of three riser ducts which were fitted into small holes to the east of the opening through which Mr. Robinson fell. Ducts had already been installed in each of these three holes and were protruding to a height of about 18 inches above the level of the third floor. In addition to these three protruding ducts, there were some electric conduits with boxes on the end installed between the holes marked 3 and 4 on the diagram. These electric conduits were of pipe about three-quarters inch in diameter.
"In moving the section of duct, Mr. Robinson was the `lead man,' and told the others how to handle the duct. Mr. Robinson had hold of the end of the duct which had the elbow on itwest endCoggins was at the other (east) end, and McDowell had hold of the end of the elbow. This section was to be placed on the riser duct extending through hole No. 1 on the diagram In order to reach this position, the duct was carried between the two holes marked 3 and 4 on the diagram. It was necessary to manipulate the duct in order to pass it between these two ducts and be raised into position to be handed to Mr. Bridges on the scaffold. Mr. Robinson traveled in a backing position. As Mr. Coggins got near the No. 4 duct protruding up out of the floor, Mr. Robinson warned Mr. Coggins to watch out for the duct and not to step in it. As the duct being carried passed between the ducts in holes 3 and 4, there was not enough room to permit McDowell and the duct to go through at the same time, so Mr. Robinson told McDowell to let go. McDowell did let go, and as Mr. Robinson was trying to maneuver the duct past a conduit, Mr. Robinson fell through opening No. 2 (on *831 the diagram). No one shoved the duct, or did anything like that, before Mr. Robinson fell. At the time Mr. Robinson fell, he was trying to maneuver the duct around the conduit.
"The witnesses for appellees testified that at the time Mr. Robinson fell through opening No. 2, there were no pipe, or conduit or ducts in opening No. 2. Appellant's witness Smith testified that there was one duct in opening No. 2 at the time of the accident.
"The appellant's witness Smith testified that after the accident to Mr. Robinson, the appellant's carpenter foreman covered up the opening Mr. Robinson fell through.
"Appellant's witness Smith also testified that he was the person responsible for preventing accidents on the job, and he knew that the appellant was to take all safety precautions on the job.
"The evidence on behalf of appellees was that the employees of Shook & Fletcher were not using opening No. 2 for the purpose of passing materials up to the third floor. Materials for the third floor were brought in through windows. The opening had been used to get materials to the second floor, but the cover was put back on each time. But the cover for opening No. 2 at the second floor had been off for at least two or three weeks prior to the accident."
Appellant's assignments of error 5, 9, 10 and 11 are founded upon the refusal of the affirmative charge based on the evidence, or on the contributory negligence of the deceased.
Appellant concedes in brief "that Robinson at the time of the accident, was an invitee on the premises and as such, was owed a duty consonant with that status." Appellant urges that it was entitled to the affirmative charge upon the theory that Robinson was an employee of an independent contractor, to whom they owed no duty to be watchful of his safety, there being no inherent danger in the premises existing when the subcontractor proceeded with the work, citing among other authorities, Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609, and United States Cast Iron Pipe & Foundry Co. v. Fuller, 212 Ala. 177, 102 So. 25.
Appellees contend that the instant case is governed by the rule of Day & Sachs v. Travelers' Insurance Co., 223 Ala. 558, 137 So. 409, 412, where the same situation existed and the same question arose as in the instant case. There, the court held that the conduct of the defendant's superintendent indicated to the employees of the subcontractor that he was looking after their safety and that they had a right to rely upon such undertaking on his part, and quoting from the Connors-Weyman Steel Co. case, the court said: "`It remains to consider whether there was any evidence tending to show that defendant did in fact undertake to make and keep the operation of the mine, or any part of it, safe for Sicard's employees, with their knowledge of and reliance upon such an undertaking'", and held further that a jury question was presented and "the affirmative charge was therefore properly refused."
In the instant case, the following evidence or tendencies therefrom were sufficient to make the question of appellant's liability a question for the jury:
1. By contract, appellant had full directing authority over Shook & Fletcher, agreed to take all necessary safety precautions, and their general superintendent was the man charged with this responsibility.
2. After the employees of Shook & Fletcher had come on the premises to work, Foster & Creighton had covered the holes both on the second and third floors.
3. Appellant's general superintendent testified that it was customary and good safety and building practice to keep such holes barricaded or covered.
*832 4. On the morning the accident happened, appellant's carpenter came to the third floor with materials to put a guardrail around hole No. 2, and this fact was known to the employees of Shook & Fletcher.
We think these facts are sufficient to bring the instant case within the rule of the Day & Sachs case and therefore presented a jury question as to the initial negligence of appellant.
But appellant contends that the No. 2 opening through which Robinson fell was open and obvious, and therefore Robinson was guilty of contributory negligence as a matter of law in working in close proximity to the opening.
The three elements essential to contributory negligence in cases of this kind are that the party charged with contributory negligence not only (1) had knowledge of the condition or failure, yet (2) appreciated the danger under the surrounding conditions and circumstances and did not (3) exercise reasonable care in the premises, but with such knowledge and appreciation, put himself into the way of danger. Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276. In Walker County v. Davis, 221 Ala. 195, 128 So. 144, 147, the court said:
See Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621; Pankey v. City of Mobile, 250 Ala. 566, 35 So. 2d 497.
There is no evidence that the deceased was guilty of contributory negligence; such a conclusion could only be based on inferences from the evidence. Where a finding of contributory negligence must be based upon inferences alone, it is the province of the jury and not of the court to draw such inferences and "`the general charge should not be given.'" Ledbetter v. St. Louis & S. F. Ry. Co., 184 Ala. 457, 63 So. 987, 988; Birmingham Southern R. Co. v. Harrison, 203 Ala. 284, 82 So. 534.
The case of West v. Thomas, 97 Ala. 622, 11 So. 768, is analogous both as to facts and as to the question of contributory negligence.
A case very similar factually to the instant case is Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 6 N.E.2d 125, 127. There the shaft was open and obvious and adjacent to the one in which plaintiff was depositing a grinding machine. "The gates [to the elevator shafts] were open most of the time. If the east gate had been closed, the accident could not have happened." The court said in part:
We think the question of Robinson's contributory negligence was a jury question, and the trial court correctly refused the requested affirmative charges.
Appellant argues that Shook & Fletcher had the same duty toward the deceased as did Foster & Creighton, and that if Foster & Creighton was negligent, Shook & Fletcher was necessarily negligent also, and one who stands in the shoes of Shook & Fletcher cannot recover from Foster & Creighton for this negligence. Appellant requested a charge which would instruct the jury on this point. Assuming, without deciding, that this is a correct proposition of law, we must hold that appellant's argument is without merit because Foster & Creighton's liability arose out of its assumption of the duty to cover the hole through which Robinson fell, and there is no evidence in the record to indicate that Shook & Fletcher assumed a similar duty.
Charge No. 25 requested by defendant was to the effect that if Robinson knew of the unsafe condition of the premises at the point and time where the accident occurred, plaintiff would not be entitled to a verdict against the defendant. Under defendant's theories of the case, there must exist not only knowledge of the dangerous condition but also appreciation of the danger and want of due care. Robinson Mining Co. v. Swiney, 206 Ala. 617, 91 So. 476; Walker County v. Davis, 221 Ala. 195, 128 So. 144; Pankey v. City of Mobile, 250 Ala. 566, 35 So. 2d 497. Therefore, it was not error to refuse to give the charge.
*834 The propositions of law contained in each of the other requested charges, the refusal of which is assigned as error, were covered either by the court's oral charge to the jury or by other charges given at the request of the defendant. Under these circumstances, it was not error to refuse to give the charges. Lindsey v. Barton, 260 Ala. 419, 70 So. 2d 633; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So. 2d 266; City of Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259.
Appellant assigns as error and argues together the court's rulings on three defense objections to arguments by plaintiffs' counsel and the court's overruling of defendant's motion for a mistrial based on part of the opening argument made by plaintiffs' counsel. One of the statements to which defendant objected was as follows:
This statement is a correct statement of the law under which this suit was brought and is well within the limits of permitted argument as set out in the cases: Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588, 129 A.L.R. 549; Atlanta Life Insurance Co. v. Ash, 228 Ala. 184, 153 So. 261; Birmingham News Co. v. Payne, 230 Ala. 524, 162 So. 116; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837.
Appellant assigns as error the court's action in overruling defendant's objection to the following question propounded to the widow of the deceased:
The evidence sought to be adduced by this question was admissible to prove a necessary allegation of the complaint. Under the statute which conferred a right of action on plaintiff, it is necessary that the employer or the insurance carrier shall have paid compensation to the injured employee or his dependents. Where a party claims a right conferred by statute, he must allege and prove facts which bring him within the provisions of the statute. Jefferson County v. Gulf Refining Co. of Louisiana, 202 Ala. 510, 80 So. 798; Alabama Great Southern Ry. Co. v. Cardwell, 171 Ala. 274, 55 So. 185. It was necessary for plaintiff to introduce this evidence to prove the allegation that plaintiff had paid or was then paying workmen's compensation to Robinson's dependents. Appellant cites Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553, as authority for his argument that such evidence is not admissible. It is true that this court held in that case that evidence of payment under the Workmen's Compensation Act was inadmissible, but that case is not controlling here because in that case, the evidence was offered by the defendant in an attempt to defeat plaintiff's recovery. The court said that liability of the employer or his insurance carrier is in no sense a defense against liability of a third person either as to the right of recovery or the quantum of recovery. In the case at bar, the evidence was introduced, not in defense, but to prove a material allegation of the complaint. We will not consider the other assignments of error which deal with similar questions and which are argued in bulk with this one.
If there was any error in the court's overruling of defendant's objections to questions propounded to plaintiffs' witness Hagood concerning the usual practice in regard to covering or fencing holes in buildings under construction it would not be such error as would cause a reversal. Under our practice, prejudicial error may not be predicated upon the admission of evidence where substantially the same evidence had been admitted previously without objection or motion to exclude. Lindsey v. Barton, supra; Louisville & Nashville *835 R. Co. v. Young, 168 Ala. 551, 53 So. 213; New Connellsville Coal & Coke Co. v. Kilgore, 162 Ala. 642, 50 So. 205. That is the case here. Witnesses who testified prior to Hagood had been permitted, without objection, to give the same testimony as that objected to at this point.
During the course of argument by plaintiffs' counsel at the close of the evidence, the following proceedings occurred:
"I will overrule your motion for a mistrial.
"Mr. Foster: Did you notice that Mrs. Robinson was crying?
"The Court: Yes, sir.
"The Court: Yes, I have noticed that.
"The Court: I had noticed that.
"Mr. Foster: We except."
Under the controlling decisions in this state, we cannot hold the trial court in error for overruling the motion for a mistrial. These cases adhere to the principle that the trial judge is vested with a wide discretion in determining whether or not an incident such as this affects the rights of either party to have a fair trial, and his action may not be reviewed unless it clearly appears that his discretion has been abused. The cases also recognize that the trial judge is in a better position than this court to determine the probable effect of such incidents. Ingalls v. Holleman, 244 Ala. 188, 12 So. 2d 751; Smith v. State, 37 Ala.App. 116, 64 So. 2d 620, certiorari denied 258 Ala. 647, 64 So. 2d 622; Swindle v. State, 27 Ala. App. 549, 176 So. 372, certiorari denied 234 Ala. 621, 176 So. 375. From the record before us, it does not appear that there was any abuse of discretion on the part of the trial judge.
Following the well-known rule announced in Cobb v. Malone, 92 Ala. 630, 9 So. 738, we will not disturb the trial court's ruling in defendant's motion for new trial on the ground that the verdict is contrary to the weight of the evidence, and following the rule as stated in Alabama Great Southern Railroad Co. v. Baum, 249 Ala. 442, 31 So. 2d 366, and cases cited therein, we will not disturb his ruling on that motion on the ground that the verdict is excessive.
Affirmed.
LAWSON, SIMPSON, STAKELY, GOODWYN, MERRILL and SPANN, JJ., concur.
LIVINGSTON, Chief Justice (dissenting).
It is also undisputed that Mr. Robinson was an employee of Shook & Fletcher Supply Company. This company had a subcontract with the Foster & Creighton Company to supply and install air conditioning and heating systems in the new building, for which purpose the contractor poured concrete floors into the addition, and in the process formed four holes in the northwest corners of the second, third and fourth floors. All of these floors were identical. Three of these holes on each floor were about 18 by 30 inches each, and the fourth, which was 5 or 6 feet away from these, had dimensions which were variously estimated at 4 by 6 feet, 7 by 8 feet, and 6 by 10 feet. The holes on all the floors were aligned in such a manner that a straight line could be dropped from the top floor to the first floor through each of the holes. The three smaller holes on each floor were to carry air conditioning ducts, and the larger hole was to carry both air conditioning and heating ducts. Windows in the north wall afforded ample light to see the holes easily.
Mr. Robinson fell from the third floor through the large hole to the first floor. He died as a result of injuries received in this fall. It is also undisputed that shortly before Robinson fell he warned Coggins not to step or fall in opening No. 4.
Appellant concedes that at the time of the accident Robinson was an invitee on the premises and as such was owed a duty consonant with that status.
The controlling law on the question in this jurisdiction is stated in Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388, 391, in which Mr. Justice Knight, speaking for the court said:
The requirements for a case of contributory negligence are well set out in Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276, 279, as follows:
These requirements are further explained in Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979, 983, in which the court said:
The instant case is analogous to Long Construction Co. v. Fournier, 190 Okl. 361, 123 P.2d 689, 690. In that case, plaintiff was injured when he fell while inspecting plastering work being done by him as an independent contractor. Defendant was the general contractor in charge of remodeling the building in which plaintiff was injured. The evidence showed that during the remodeling a celotex covering had been placed over a marble floor as protection. The celotex covering consisted of two pieces placed end to end over which wheelbarrows had moved, so as to cause the pieces to warp and overlap. In reversing a judgment for plaintiff, the court said:
In Neal v. Cities Service Oil Co., 306 Mich. 605, 11 N.W.2d 259, plaintiff was an invitee in a filling station operated by defendant. Plaintiff walked into a well-lighted restroom, in the floor of which was an open trap door. Plaintiff stopped and stood in one door of the restroom and did not see the open trap door as he walked past it. As plaintiff stepped back to let someone pass, he fell into the unprotected trap door opening. In reversing a judgment for plaintiff, the court said that ordinary prudence requires that a view be taken of the place where one is about to step, and held that where an adult possessed of all normal faculties walks into a small well-lighted room, past such a floor opening as this trap door, stands for five minutes near the edge of the opening, and then in a moment of carelessness steps backward into the opening, such person is not using the care that an ordinarily careful person would use under like circumstances, and is guilty of negligence as a matter of law.
In Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609, the court decided the case on other grounds, but stated that the inherently dangerous defect in the premises was as well known to the invitee as to *839 the owner, and could furnish no basis for liability of the owner merely as an invitor.
In the recent case of Claybrooke v. Bently, 260 Ala. 678, 72 So. 2d 412, the deceased, Jesse, was crushed while holding a ramp leading into a warehouse when a trailertruck which he was directing in its movements hooked the ramp and pulled it against the building. Jesse was an employee of an independent contractor who had a contract to haul cotton seed from a cotton gin to the warehouse. He had been working at the warehouse for about six months. In an action by his administratrix against the warehouse owner in which the defendant was charged with negligence in failing to provide a safe place to work, this court held that the affirmative charge should have been given at the request of the defendant. The court held that the danger being a known and obvious one, of which Jesse knew or should have known, defendant could assume that he would observe it and guard against it. The court reaffirmed the law as stated in Lamson & Sessions Bolt Co., supra, and that under the factual situation in the case, it was reversible error to refuse to give the affirmative charge for the defendant.
The appellee relies strongly on Day & Sachs v. Travelers' Ins. Co., 223 Ala. 558, 137 So. 409, to support his contention that the case was properly submitted to the jury. That case can be distinguished from the case at bar by the fact that the question of plaintiff's being injured as the result of an open and obvious danger was not raised in that case.
As I understand the majority opinion, it is rested on the theory that the Foster and Creighton Company, while perhaps not obligated in the first instance to cover or guard the opening through which Robinson fell, it undertook to do so, and because of its negligent failure in that regard Robinson fell to his death. But assuming that the Foster and Creighton Company did assume the duty and did negligently fail to perform it, does it necessarily follow that a jury case was made against Foster and Creighton? Is it not necessary to show that said negligence was the proximate cause of the injury? To make the Foster and Creighton Company liable, its undertaking to cover or guard the opening through which Robinson fell and its negligent failure to do so, must have cloaked the defect, dulled Robinson's call to vigilance, given him a false assurance, and aggravated the danger to him. This, we cannot visualize for the simple reason that the opening was still obviously open and unguarded, and Robinson, of all people, whose sole duty it was to work in and around the series of openings in the third floor, including the opening through which he fell, by the exercise of ordinary care could and should have observed the opening through which he fell, and his failure to do so was, in my opinion, the sole proximate cause of his death. There is nothing in this record to indicate in the slightest degree that Robinson was not aware at all times of the unguarded condition of the opening through which he fell. He cannot be heard to say that he did not know that it was there; nor can he be heard to say that he did not know that it was unguarded. What then, other than his own lack of due care, could have caused his fall? Whose fault, but his own, can it be said caused his injury and death? If that be so, his own negligence was the sole proximate cause of his fall.
For the above reasons, I am of the opinion that the defendant was entitled to the general charge, and I therefore respectfully dissent. | June 30, 1956 |
41abd245-cd38-441a-a0ed-683faaa967b5 | Radue v. Zanaty | 308 So. 2d 242 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 242 (1975)
Harland L. RADUE
v.
Wadell ZANATY et al.
SC 582.
Supreme Court of Alabama.
February 13, 1975.
Harland L. Radue, pro se.
George Hibbert, Atlanta, Ga., for appellee Federal Reserve Bank of Atlanta.
John J. McMahon, Jr., Birmingham, for appellee First Natl. Bank of Birmingham.
London, Yancey, Clark & Allen and Max Hudson, Birmingham, for appellee Fidelity & Deposit Co. of Maryland, a Corp.
William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue and Asst. Atty. Gen., Herbert I. Burson, Jr., Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for appellee Agnes Baggett, Treasurer of the State of Ala.
HEFLIN, Chief Justice.
This is an appeal from a dismissal under Rule 12(b)(6) of the Alabama Rules of *243 Civil Procedure for failure to state a claim upon which relief can be granted. That judgment is affirmed.
The plaintiff-appellant in this case, Dr. Harland L. Radue, has been to this court before; see Radue v. Bradshaw, 289 Ala. 481, 268 So. 2d 760 (1972). Indeed, the present case seems to be a sequel to his first case. The two cases, however, present different questions of law entirely.
Radue in 1969 was a Birmingham chiropractor. In that year he earned an income but failed to file a state income tax return. Because he filed no return the Department of Revenue made an administrative determination of the tax due the state. Dr. Radue did not appeal in the manner provided by statute, but instead, some months after the assessment was made, filed a bill in equity seeking injunctive and declaratory relief. The Jefferson County Circuit Court dismissed the complaint. This court affirmed, upholding a final assessment against Dr. Radue for $692.11 in taxes for the year 1969. The Jefferson Circuit Court had also assessed court costs against Dr. Radue.
Thereafter Radue wrote two checks, drawn on the respondent First National Bank of Birmingham, in the amounts of $568.06 and $200.00. (It is not clear why one check was not for the amount of taxes due, but nevertheless the two checks apparently equal the total of the taxes due plus court costs.) These two checks carried at the signature lines this statement: "This signature void if not redeemed in gold and silver coin." On the backs of the checks was another statement: "NOTICE TO ENDORSERThis check is to be redeemed in gold or silver coin as per Article 13 of the Alabama Constitution and Article 1, Sec. 10, U. S. Constitution. Specie payment." Dr. Radue added these two statements after getting the checks certified by the respondent First National Bank of Birmingham.
On May 30, 1973, Dr. Radue filed his complaint in the present action; he contended among other things that the two checks satisfied the judgment and assessment of costs.
Dr. Radue's present case is centered around Article 13, Sec. 249, of the Alabama Constitution of 1901 and Article 1, Section 10, of the U. S. Constitution. Article 13, § 249, of the Alabama Constitution provides:
Article 1, § 10, of the U. S. Constitution provides:
Dr. Radue's complaint sought, among other things: 1) that Respondent Zanaty (Register of the Jefferson Circuit Court) be enjoined from accepting anything but gold or silver coin as payment of the judgment and costs; 2) that Respondents Fidelity & Deposit Company of Maryland and Nelson & Crabbe Company (which respondents had bonded Dr. Radue) be enjoined from offering payment of the judgment and costs in any tender other than gold or silver coin; 3) that the respondent banks be enjoined from refusing to pay his checks in gold or silver coin; and 4) that the state treasurer be enjoined from accepting payment of the checks in any form except gold or silver coin.
Dr. Radue says he has a right to demand compliance with the constitutional provisions cited supra, and contends that without the requested injunctions it will be impossible for him to satisfy the judgment of this court and his allegiance to the constitutions of our state and nation at the same time. Specifically, he says that these constitutional provisions prohibit the State of Alabama from accepting paper money and *244 from paying its warrants in anything but gold or silver.
It is apparent that both constitutional provisions relied upon by the plaintiff place restrictions upon the powers of the state. The United States Supreme court, considering the constitutionality of a congressional act making United States notes legal tender, stated long ago in the case of Juilliard v. Greenman, 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204 (1884):
It does not appear here that the State of Alabama has attempted in any way to make paper money legal tender in payment of debts. Nor does it appear that the State of Alabama has in any way passed a law sanctioning directly or indirectly the suspension by any bank of specie payment.
In actuality, Radue's complaint has to be that the Congress of the United States has made paper money a tender for payment of debt. However, the power of Congress to establish paper money as a legal tender has long been decided. Mr. Justice Gray, speaking for the United States Supreme Court, stated in Juilliard v. Greenman, supra:
Mr. Justice Gray further stated in Juilliard v. Greenman, supra, that the question of whether to issue paper money as legal tender is a question for Congress:
Judicial review is appropriate only as to the question whether Congress has acted arbitrarily or capriciously. Norman v. Baltimore & O. R. R. Co., 294 U.S. 240, 55 S. Ct. 407, 79 L. Ed. 885, 95 A.L.R. 1352 (1935); Emery Bird Thayer Dry Goods Co. v. Williams, 107 F.2d 965 (8th Cir. 1939), cert. denied, 309 U.S. 655, 60 S. Ct. 468, 84 L. Ed. 1004 (1940).
The Congress, in exercise of its constitutional power, has made all coins and currencies of the United States, including Federal Reserve notes, legal tender, 31 U. S.C. § 392.
Furthermore, in 1935 Congress declared to be "against public policy" any provision purporting to give an obligee a right to demand payment "in gold or a particular kind of coin or currency." This declaration is currently found at 31 U.S.C. § 463(a):
The United States Supreme Court upheld the constitutionality of this section in the case of Norman v. Baltimore & O. R. R. Co., 294 U.S. 240, 55 S. Ct. 407, 79 L. Ed. 885, 95 A.L.R. 1352 (1935). In Guaranty Trust Co. v. Henwood, 307 U.S. 247, 59 S. Ct. 847, 83 L. Ed. 1266 (1939), Mr. Justice Black, speaking for the Supreme Court, stated the purpose of this statute:
Therefore, this court finds the statements written on plaintiff's checksto the effect that they were to be paid only in gold or silver cointo be against public policy as declared by the Congress and consequently null and void.
For the reasons outlined above, this court holds that the trial court properly dismissed on the Rule 12(b)(6) motions for failure to state a claim upon which relief can be granted. In short, the appellant has shown no grounds upon which he can be entitled to the relief sought, and it affirmatively appears that he is not so entitled.
Affirmed.
BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur. | February 13, 1975 |
c383b2ee-d418-4bb2-9ea3-8c6d08109a23 | Davenport-Harris Funeral Home v. Chandler | 88 So. 2d 878 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 878 (1956)
DAVENPORT-HARRIS FUNERAL HOME, Inc.,
v.
Glenn CHANDLER et al.
6 Div. 44.
Supreme Court of Alabama.
July 26, 1956.
*879 McDonald & Moon, Birmingham, for petitioners.
Arthur D. Shores, Birmingham, opposed.
SIMPSON, Justice.
This is a petition for writ of certiorari to the Court of Appeals.
The petition prays that this court proceed to review and correct the errors complained of and to reverse the judgment of the Court of Appeals. But no errors are pointed out in the petition. The petition recites the following as a basis for the application for certiorari:
"The points of law which Petitioners claimed should be reviewed and revised by this Honorable Court are as follows:
"1. What is the legal duty to others of an undertaker who is in charge of and directing a funeral procession with regard to the formation of the procession and directions given to persons participating in the funeral procession?
"2. Does the agent of an undertaker have the implied or apparent authority to employ others to assist him in his work while conducting and directing a funeral procession for his employer?
"3. Is the driver of a car leading a funeral procession whose position and movements are directed by the agent of the undertaker engaged in conducting a funeral procession the agent of the undertaker while performing such movements directed by the agent of the undertaker?"
Manifestly, it is impossible for this court to review the opinion or to revise the judgment of the Court of Appeals with respect to any errors, if so, inasmuch as the petition does not point out any errors but merely requests this court to make a declaration with respect to the statutes listed above. The petition is insufficient to invite a review.
Rule 39 of the Revised Rules of this court, Code 1940, Tit. 7 Appendix, provides that the application for writ of certiorari must be accompanied by a brief "pointing out and arguing the point or decision sought to be revised or corrected." Implicit in this provision is that the application for the writ must point out with sufficient clearness any error of law in the opinion of the Court of Appeals of which the petitioner complains.
This necessarily must be so because in determining the propriety vel non of issuing the writ, we only pass on the grounds on which the certiorari is sought. City of Gadsden v. Elrod, 250 Ala. 148, 33 So. 2d 270. See also Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 466, 187 So. 632, 123 A.L.R. 1337.
Writ denied.
LIVINGSTON, C. J., and MERRILL and SPANN, JJ., concur. | July 26, 1956 |
d54d64c6-0427-4440-9690-bced2c78e9f8 | Haavik v. Farnell | 87 So. 2d 629 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 629 (1956)
Geraldine Gans HAAVIK et al.
v.
Perry FARNELL.
1 Div. 660.
Supreme Court of Alabama.
May 24, 1956.
*630 W. C. Taylor, Mobile, for appellants.
D. R. Coley, Jr., and Jos. M. Hocklander, Mobile, for appellee.
LAWSON, Justice.
The appeal is from a decree overruling demurrer to a bill in equity which was filed in the circuit court of Mobile County, in equity, on January 6, 1955, by Perry Farnell against his former wife, Geraldine Gans Haavik, and her sister, Gwendolyn Elwell.
Complainant seeks a decree investing title in him to Lots 20 and 21 in Cottage Hill Gardens, Mobile County, paper title to which is now in the respondent Elwell under conveyances from the respondent Haavik who, according to complainant, held title in trust for him, which fact, according to the averments of the bill, was well known to the respondent Elwell at the time she secured the conveyances referred to above. In regard to numerous items of personal property described in the bill and alleged to be in the possession of the respondent Haavik, the complainant prays the court to decree that the title thereto is vested in complainant and to order the respondent Haavik to deliver such property to complainant and that "in the event said property or any part thereof, has been sold or disposed of by the said Respondent, that a judgment be entered in his behalf and against her for the value thereof and for the conversion of said property."
The respondents addressed numerous grounds of demurrer to the bill as a whole and a number of grounds were addressed "to that aspect of the bill * * * seeking a resulting trust." In so far as Lot 21 is concerned the averments of the bill show that complainant seeks relief on the theory of a resulting trust inasmuch as it is averred that although the complainant paid all of the purchase price for the lot that he permitted the title to be taken in the name of Geraldine Gans Farnell who, as shown above, is the same person as the respondent Geraldine Gans Haavik. We have said that a resulting trust arises from a presumption of fact expressive of the supposed intention of the parties that the title to the land voluntarily taken in the name of another is held for the benefit of the one who furnishes the purchase price. The title is thus taken in the other by the complaining party himself or it is with his consent. Adams v. Griffin, 253 Ala. 371, 45 So. 2d 22; Lauderdale v. Peace Baptist Church of Birmingham, 246 Ala. 178, 19 *631 So. 2d 538; Rose v. Gibson, 71 Ala. 35. But following the rule that pleadings must be construed most strongly against the pleader, the bill in the present shape is susceptible of the construction that the deed to Lot 21 was acquired prior to the divorce at a time when the complainant and the respondent were still living together as man and wife. In view of this relationship no presumption of resulting trust arises and the burden was on complainant to allege that Lot 21 was not a gift by him to his then wife. Swendick v. Swendick, 221 Ala. 337, 128 So. 593. In regard to Lot 21 the complainant does aver that he permitted the title to be taken in the name of his then wife "believing that the title to the lot would be held by her in trust for him." Such an averment does not overcome the presumption of a gift. Adair v. Adair, 258 Ala. 293, 62 So. 2d 437. Ground 32 addressed to the aspect of the bill seeking a resulting trust takes the point that from aught appearing it was a gift on the part of complainant to the respondent Haavik. Aside from the fact that Ground 32 is not sufficiently referred to in brief filed here on behalf of appellants as to justify our consideration, we cannot consider that ground or any other ground of the demurrer addressed to the aspect of the bill seeking a resulting trust for the reason that the trial court overruled the demurrer generally, without referring to the demurrer or grounds thereof addressed to the aspect. Under our holding in Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749, and our recent decisions following that holding, the effect of such a decree is a ruling on the demurrer to the bill as a whole, and hence only grounds going to the bill as a whole which are adequately argued in brief filed here on behalf of an appellant will be considered by us. See Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31, 38 A.L.R.2d 1100; Shaddix v. Wilson, 261 Ala. 191, 73 So. 2d 751; Williamson v. Burks, 262 Ala. 422, 79 So. 2d 42; Davis v. Davis, 263 Ala. 42, 81 So. 2d 314; Adams v. Woods, 263 Ala. 381, 82 So. 2d 531; Marshall County Gas District v. City of Albertville, 263 Ala. 601, 83 So. 2d 299; McCary v. Crumpton, 263 Ala. 576, 83 So. 2d 309.
The averments of the bill as they relate to the acquisition of the deed to Lot 20 are substantially as follows: Complainant paid the sum of $75 to the owner of the lot as earnest money. The respondent Haavik, then the wife of complainant, had in her possession money and funds belonging to complainant, which the complainant directed her to use "to pay the balance of the purchase price on said lot and to pay it over to the owner of said lot and secure the deed." It does not appear whether the complainant directed his then wife to take title in his name, in her name, or whether he gave her any instructions in that respect, but it is alleged "that she fraudulently caused her name, Geraldine Gans Farnell, to be inserted in the deed as the grantee." There is no express averment to the effect that the wife used the funds of complainant as directed by him, but it is alleged: "He further shows that the full consideration for said property and for the improvements thereon was paid by him and with his funds." Neither the name of the owner nor the cost of the lot is averred.
In brief filed here on behalf of appellants, we gather that counsel has construed the averments just summarized above as showing that as to Lot 20 the complainant seeks to have the court declare a resulting trust in his favor. In brief filed here on behalf of appellee we are unable to determine the theory on which complainant was proceeding, but those averments do not show a resulting trust. A resulting trust is not shown when the title is taken in another without the consent of the one who furnishes the purchase money and who is claiming the benefit of the trust. Bostic v. Bryan, 263 Ala. 673, 83 So. 2d 796; Knowles v. Canant, 255 Ala. 331, 51 So. 2d 355; Longley v. Patton, Ala., 86 So. 2d 820. We think the averments pertaining to Lot 20 tend to show a constructive trust, since it is alleged that the wife fraudulently caused her name to be inserted in the conveyance as grantee. Bostic v. Bryan, supra.
As shown above, no grounds of demurrer were addressed to the aspect seeking to have the court declare a constructive trust *632 in favor of complainant as to Lot 20 and no ground of demurrer addressed to the bill as a whole which is argued in brief filed here on behalf of appellant presents for our consideration the question as to whether or not the averments of the bill relating to Lot 20 which we have summarized above would be good as against apt demurrer.
No mention is made in brief filed here on behalf of either party of that aspect of the bill which seeks relief as to personal property. However, we think it not inappropriate to express our views in regard to that aspect which we consider to be nothing more than a substitute for an action in detinue. Under the facts set out, as well as the relief sought, we think a plain and adequate remedy at law is disclosed relative to the personal property. Priebe v. Farmers' Union Warehouse Co., 230 Ala. 73, 159 So. 694.
One of the principal arguments made in brief filed here on behalf of appellants is that the trial court erred to a reversal in overruling those grounds of the demurrer addressed to the bill as a whole which are to the effect that the bill shows on its face that the right or claim of complainant is barred by the statute of limitations of one year as provided in § 42, Title 7, Code 1940, which reads:
The provisions just quoted when applicable serve as an additional period, not a limitation. Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So. 2d 73; Smith v. Smith, 243 Ala. 488, 10 So. 2d 664.
Section 42, Title 7, is not here controlling. Our cases are clear to the effect that in seeking to have the court declare a resulting trust or a constructive trust in land when the grantee, as here, is in possession the statute of limitations is ten years as in the nature of a suit for the recovery of land, since land is the subject matter of the suit. Knowles v. Canant, supra, and cases cited; Williams v. Kitchens, 261 Ala. 340, 74 So. 2d 457; Sykes v. Sykes, 262 Ala. 277, 78 So. 2d 273; Henslee v. Merritt, 263 Ala. 266, 82 So. 2d 212.
The limitation for the recovery of personalty is six years. § 21, Title 7, Code 1940; Van Antwerp v. Van Antwerp, supra.
The trial court did not err in overruling the fifth ground of the demurrer which is to the effect that the averments of the third paragraph of the bill are vague, indefinite and uncertain because it is not alleged therein from whom plaintiff purchased Lot 20. As far as we are able to ascertain, the name of the seller of that lot is entirely immaterial to the issues involved in this case.
We are constrained to say that the bill of complaint in its statements as to the equity or equities upon which complainant relies for relief is not as clear and complete as good pleading would seem to suggest or require. But we are here reviewing only those grounds of demurrer addressed to the bill as a whole which have been adequately argued in brief filed here on behalf of appellants and after a careful study we are clear to the conclusion that none of those grounds were well taken. It follows, therefore, that the decree of the trial court is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
2f0cbb6d-8b1d-4bd7-b87f-4462753f7223 | State v. Natco Corporation | 90 So. 2d 385 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 385 (1956)
STATE of Alabama
v.
NATCO CORPORATION.
6 Div. 996.
Supreme Court of Alabama.
November 1, 1956.
John Patterson, Atty. Gen., Willard W. Livingston and H. Grady Tiller, Asst. Attys. Gen., for appellant.
Wm. S. Pritchard, Winston B. McCall, Victor H. Smith and Pritchard, McCall & Jones, Birmingham, for appellee.
STAKELY, Justice.
There appear on the docket of this Court two cases, respectively, State of Alabama v. Natco Corporation, 6 Div. 996, and State of Alabama v. Natco Corporation, 6 Div. 997, 90 So. 2d 389. These two cases by agreement of the parties were consolidated in the circuit court and by agreement of the parties have been consolidated in this Court. Case No. 6 Div. 996 involves an assessment for use taxes made by the State Department of Revenue for the period from January 1, 1952, through September 30, 1954 and Case No. 6 Div. 997 involves an assessment by the State Department of Revenue for sales taxes covering the period from October 1, 1951, through October 31, 1954. However the items which are controverted in each case are identical and may be described here as charges for "freight" and charges for "detailing". These items will be described later. In Case No. 6 Div. 996 the controverted items which are included in the assessment *386 are freight $282.60 and detailing $5.65, while in Case No. 6 Div. 997 the controverted items included in the assessment are freight $792.96 and detailing $51.38. From the final assessment made in each of these cases by the State Department of Revenue an appeal was taken to the circuit court for the Tenth Judicial Circuit of Alabama, in Equity, where Natco Corporation, a corporation, filed a bill. The State filed an answer in each case. Trial was had ore tenus with the result that the Court set aside the assessment for the controverted items in each case and held that as to such items no tax was due.
The only evidence in the case consisted of some written exhibits, the testimony of K. H. Potts, testimony of Albert R. Estell and a stipulation between the parties as to the amount of the items involved. The testimony of the witness Estell, the Comptroller of Natco Corporation, deals only with the amounts set forth in the stipulation.
Mr. K. H. Potts testified in behalf of the taxpayer and his testimony in substance showed the following. He was the Southern Sales Manager of the Company and resided in Birmingham, Alabama, and had been so employed by the Natco Corporation for about twenty years. The company was engaged in the production of clay products such as structural glazing tile, clay conduits, floor tile, roofing tile and sewer pipe, sewage drain plates, filter drains, etc. The items mentioned are used in construction work. The manufactured products were shipped either from the plants of the appellee in Alabama to points within this State or were sold from the plant of the appellee located outside of the State of Alabama and shipped to customers at points within the State of Alabama.
The charges for freight in the assessments represent the cost of transportation of the product from its place of manufacture or production to the place of its use. The items described as "detail" involve the manufacturing or making of what might be appropriately called a blue print for the use and placement of the materials sold by the company to its customers in Alabama.
While the concepts with respect to the use tax are somewhat different from those of the sales tax, this Court has held that the two laws are complementary one to the other and has construed them as being in pari materia. For a discussion of the characteristics of these two taxes we refer to Paramount-Richards Theatres v. State, 256 Ala. 515, 55 So. 2d 812.
I. The questions to be determined in this case are (1) Did Natco Corporation receive as a part of the gross proceeds of the related sales the cost of transportation to the purchasers, or were such charges paid by the purchasers in addition to the sales price? (2) Did the "detailing" constitute tangible personal property subject to the sales tax or the use tax?
Section 788 as amended, Title 51, Code of 1940, levies the use tax and is so far as here material as follows:
Since the use tax is based upon or measured by the sales price of the tangible personal property sold and as said term "sales price" has been defined by the legislature, we call attention to the following statute.
It will be observed that the word "transportation" appears in the foregoing statute and for transportation to come within the levying section, services (including transportation) must be a part of the sale, valued in money, whether paid in money or otherwise. It may also be observed that included in the sales price there is the amount for which credit is given to the purchaser by the seller and that included in the measure of the tax is "any other expenses whatsoever". In other words, it seems obvious that if the taxpayer included the transportation charges in the sales price of the articles sold, the measure of the tax would be the entire sales price, including transportation.
There were introduced in evidence by Natco certain exhibits marked, respectively, A-1, through A-6. These exhibits to which we refer are specimen forms of purchase orders and quotations for the different kinds of material for sale by Natco. In each of these exhibits appears the following: "The above prices for material F. O. B. cars or works, with freight allowed in carloads to (destination.) * * * The above prices are for material F. O. B. our works, with trucking allowed to Job Site. Job site means to a point only where accessible by truck and not unloaded." It will be noted that in each of these exhibits the following language appears: "It is expressly provided that all prices quoted were for material F. O. B. our works." It is the general rule of law that where the agreement is to sell goods F. O. B. a designated place, such place will ordinarily be regarded as the place of delivery. Sanford Service Co. v. City of Andalusia, 256 Ala. 507, 55 So. 2d 856. And further the general rule is that delivery of personal property by the seller to a common carrier to be conveyed to the purchaser is a delivery to the purchaser and the title to the property vests in the purchaser immediately upon its delivery to the carrier. Bank of Guntersville v. Jones Cotton Co., 156 Ala. 525, 46 So. 971; Alabama Great Southern R. Co. v. H. Altman & Co., 191 Ala. 429, 67 So. 589. This general rule and some of the exceptions thereto are stated in § 25, Title 37, Code of 1940. See State of Alabama v. Pan-Am Southern Corp., Ala., 89 So. 2d 747.
But the following language also appears in connection with the words which have been quoted in the foregoing exhibits: "With freight allowed in carload lots to (destination) or with trucking allowed to job site (destination)." In other words, it is the earnest insistence of the State that when the entire language is taken together it shows that the price includes the cost of transportation. The testimony of the witness Potts shows that the latter words were placed in the contract with the destination to be filled in for the convenience of the contractors in order that they might know the delivered cost on the job of the material involved. The State introduced in this connection what are designated as Exhibits X, Y, Z, which are copies of invoices of material shipped from appellee's plants in Alabama to points within the State. These invoices were first shown to the witness, Potts. The witness Potts explained that the carriage charges were not included in the gross sales price but were *388 paid as a separate cost by the consignee. In cases similar to that shown by Exhibit X the haulage was prepaid by Natco for the convenience of the purchaser and a separate charge as to the freight was made. His testimony further showed that there were some occasions in which the price at which the material was sold included the carriage charges. In those instances Natco included such transportation cost as a part of the sales price and accounted to the State Department of Revenue for them and they are not involved in any manner in either of the present cases. The gist of the testimony of the witness Potts with reference to the transportation charges is shown by the following answer to the following question which the witness made after the Exhibits A-1 through A-6 were identified.
The witness further testified in substance that the purchaser paid the transportation charges and that none of the transportation charges were paid as part of the selling price of any property involved.
It is further shown that Regulation 14 of the State Department of Revenue which was made pursuant to statutory authority recognizes the situation as described by the testimony of the witness Potts. The regulation in substance provides that if the seller contracts to sell tangible personal property F. O. B. origin the title to the property passing at such point to the buyer and the buyer pays the transportation charges, then the transportation charges are rendered to the buyer and are not a part of the selling price of the vendor. Thereafter such transportation charges should not be included by the vendor in computing his tax liability on the account.
To sum up the situation, the Court held and we think correctly so, that Natco did contract to sell and did sell tangible personal property f. o. b. origin. Accordingly as a matter of law as well as in accordance with the evident intention of the purchasers, the title of the property passed at the point of origin to the buyer and the buyer paid the transportation charges. Thus the transportation charges were rendered to the buyer and were not a part of the selling price and were not due to be included by Natco in computing its tax liability.
II. The nature of "detailing" is shown by the testimony of the witness Potts where he said:
In answer to the question, "In other words, as a part of your sales activities, you also prepare this detailing which is an engineering service, is that right?" The witness answered, "It is done apart from our normal sales. The service is not included in the original sale at all. It is a service rendered outside the original sale. I would say most of our sales do not include the detailing. We do it in certain instances where the customers desire the service." The witness further testified that *389 it was done as a convenience to the customer, purely an engineering service and not part of the sale at all and the billings for these engineering services and detailing were made separately. In other words, the customer was billed just like an architect would bill his services for drawing plans. The detailing was in substance and effect similar to an architect's plan and had nothing to do with the production material at all. The witness further testified that if the detailing was furnished, it was furnished in the form of a blue print showing where and how certain tile fit into the building.
In State Tax Commission v. Hopkins, 234 Ala. 556, 176 So. 210, the court held that the act should not be extended so as to tax one's income from personal skill in the exercise of a profession.
In Dun & Bradstreet v. City of New York, 276 N.Y. 198, 11 N.E.2d 728, 731, in holding that the tax law did not apply for services rendered except in particular instances, the court said:
In the case at bar the court held that the cost of detailing furnished in the present instance was for personal services rendered and, therefore, not within the act. The court acted correctly and its decree should be upheld.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 1, 1956 |
0f6bad8f-37e8-4879-85b2-132ca455a8f2 | Jordan v. State | 318 So. 2d 801 | N/A | Alabama | Alabama Supreme Court | 318 So. 2d 801 (1975)
In re Karen Elaine JORDAN
v.
STATE.
Ex parte Karen Elaine Jordan.
SC 1068.
Supreme Court of Alabama.
March 13, 1975.
Richard D. Lane, Auburn, for petitioner.
No appearance for the State.
HEFLIN, Chief Justice.
Petition of Karen Elaine Jordan for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jordan v. State, 56 Ala.App. 55, 318 So. 2d 793.
Writ denied.
MERRILL, MADDOX, JONES and SHORES, JJ., concur. | March 13, 1975 |
32e994b8-63be-4b6b-883c-d1b5e06e3b79 | Parkinson v. Hudson | 88 So. 2d 793 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 793 (1956)
Merle A. PARKINSON
v.
David James HUDSON.
6 Div. 994.
Supreme Court of Alabama.
June 21, 1956.
Rehearing Denied August 2, 1956.
*794 Geo. S. Brown and Robt. W. Smith, Birmingham, for appellant.
Huie, Fernambucq & Stewart, Birmingham, for appellee.
MERRILL, Justice.
Appellee instituted this action in the Circuit Court of Jefferson County under the provisions of the Employer's Liability Act, Title 26, § 326, Code 1940, seeking to recover damages for personal injuries. The complaint, in substance, charged that appellant furnished a defective truck to his employee, the appellee, and that appellee was injured thereby. To this complaint, as amended, appellant filed several pleas. Among them were (plea 1) the general issue, (plea 3) contributory negligence, assumption of risk and that it was the duty of the appellee to keep the truck in repair, (plea 7) contributory negligence and that appellee had the duty of keeping the truck *795 in repair, (plea 8) that appellee was the agent of appellant entrusted with the duty of seeing that the truck was kept in proper condition and that he undertook to perform that duty, (plea 9) assumption of risk and same duty as plea 8.
The jury returned a verdict for $4,000 in favor of the appellee. From the judgment rendered pursuant to said verdict and the judgment overruling his motion for a new trial, appellant prosecutes this appeal.
The evidence discloses that appellee was employed by appellant in October, 1953, as a truck driver and a general laborer. He was not hired as a mechanic and did not purport to be able to perform repairs on the truck he was employed to drive. Appellant testified that appellee was given complete charge of the truck and was instructed that whenever any repairs were needed he was to take it to a designated garage where a mechanic would make the necessary repairs and that he had told appellee that it was appellee's responsibility to keep the truck repaired. On the other hand, there was also evidence to the effect that appellee was not given authority to effectuate any major repairs to the truck, and that while he was authorized to purchase gasoline, oil, etc., and charge same to appellant, he always conferred with appellant to receive instructions whenever any repairs of major proportion were necessitated.
Several assignments of error relate to the action of the trial court in refusing to give the general affirmative charge, both with and without hypothesis, for the appellant. It is contended the undisputed evidence showed that it was the duty and responsibility of the appellee to keep the truck in a proper state of repair. In view of this contention we detail other tendencies of the evidence of the appellee.
On January 19, 1954, appellee was instructed by appellant to make a trip to Georgia. He was to carry a load of coke to his destination and bring back a load of granite monuments. Appellee testified that shortly prior to his leaving on this trip, he and appellant had a discussion about the fact that the front wheels of the truck shimmied. In that discussion appellee stated that he thought the truck needed "bushings or something". He said Appellant stated that he thought the shimmying was caused by a worn tire and suggested that a new tire be put on the truck. He further stated that if the new tire did not eliminate the shimmying, then after appellee returned from the trip they would have it repaired. A new tire was put on the truck and about 8:00 P.M. appellee left the city of Birmingham for Georgia. The wheels did not shimmy while in Birmingham but at some point after getting on the highway No. 78 the shimmying began again. Appellee continued on his journey and at a point some 100 miles from Birmingham, near Fruithurst in Cleburne County, he ran into a "fog pocket", applied the brakes, and, as he testified, "it seemed like they locked and pulled me off the road". The truck overturned and appellee suffered a severe injury to his hip. As can be noted from that portion of the evidence hereinabove set out, the evidence in regard to the duty and responsibility of the appellee is in conflict. The affirmative charge for appellant was properly refused. Mutual Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649. 18A Alabama Digest, Trial.
Appellant further argues in his brief that he "was entitled to the general affirmative charge without hypothesis, his case being made out by the testimony of his opponent".
We have noted that some of the testimony of appellee was favorable to the defenses relied on by appellant; however, other portions of his testimony were favorable to himself.
A conflicting tendency of the evidence making a question for the jury may be presented by the direct and cross-examination of one witness. Ten Ball Novelty & *796 Mfg. Co. v. Allen, 255 Ala. 418, 51 So. 2d 690; Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355; St. Paul Fire & Marine Ins. Co. v. Crump, 231 Ala. 127, 163 So. 651; Jones v. Bell, 201 Ala. 336, 77 So. 998. In the case of Alabama Power Co. v. Buck, supra [250 Ala. 618, 35 So. 2d 356], it was stated:
Appellant further contends that the case was allowed to go to the jury on a scintilla of evidence and that the lower court erred, on appellant's motion for a new trial, in refusing to set aside the verdict as being against the great weight of the evidence. In support of this contention appellant relies heavily on a statement by the trial judge that "* * * my idea is there is a scintilla." This statement was made by the judge at the conclusion of argument that appellant was entitled to the general affirmative charge.
Of course, the fact that the trial judge made the statement is not evidence that there is only a scintilla of evidence. We do not think the trial judge meant to intimate by this statement that he was of the opinion that only a scintilla of evidence existed. Had he been of such opinion, we are convinced that, experienced as he is in questions of this type, he would have granted the motion for a new trial if the verdict was contrary to the great preponderance or the great weight of the evidence, following the rule stated in Pollard v. Rogers, 234 Ala. 92, 173 So. 881; New York Life Ins. Co. v. Zivitz, 243 Ala. 379, 10 So. 2d 276, 143 A.L.R. 321; and Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251.
We find no error in the action of the lower court in denying appellant's motion for a new trial on the grounds that the verdict is against the great weight of the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Written charges number 3 and 16 refused to appellant are as follows:
No prejudicial error resulted from the refusal of either of these charges. Charge 3, while stating a correct principle of law, is abstract. Appellee did not contend that appellant was his insurer nor did he contend that he as an employee did not assume the risks ordinarily incident to the business of his employer, the appellant.
Appellant's given charges number 11, 13, 19, 24 and 25 were concerned with and adequately explained the principles of law set forth in the refused charges. Moreover, the oral charge of the court covered the matter contained in the refused charges.
*797 On voir dire examination, the prospective jurors were asked by counsel for appellee if "any of you have ever been plaintiffs in a lawsuit where you were suing to recover for personal injuries? Have any of you ever been plaintiffs whereby you were suing or seeking to recover damages for personal injuries?" The juror Robinson replied that he had been a plaintiff in an action for personal injuries in 1946 and that such action arose out of an airplane accident. No further questions along this line were posed and the juror Robinson was allowed to serve. After both parties had rested their case, appellant's counsel discovered that in 1950 the juror Robinson had been a plaintiff in an action whereby he sought to recover damages for loss of his wife's services and that this action arose out of an automobile-bus collision in which his wife had sustained personal injuries.
Appellant contends that the failure of this juror to disclose this information deprived him of his right to advisedly strike the jury and that the trial court erred in overruling his motion for a mistrial and his motion for a new trial based on this matter.
A party in either a civil or criminal case has the right to examine jurors as to bias which would affect the trial of the case. Title 30, § 52, Code of Alabama, 1940. Upon such examination the party is entitled to truthful answers from the jurors. Leach v. State, 31 Ala.App. 390, 18 So. 2d 285. And when the disqualification of a juror is not known to the injured party, it is ground for a new trial. Birmingham Electric Co. v. Yoast, 256 Ala. 673, 57 So. 2d 103, 30 A.L.R.2d 907.
In the instant case we do not think the question posed called for a disclosure of the matter urged as a disqualification of the juror Robinson. He had not been a plaintiff in a case whereby he was "suing or seeking to recover damages for personal injuries," and this fact was proven on the hearing of the motion for a new trial.
The defendant was apprised of the fact that the juror had been a plaintiff in an action for damages arising out of an accident, and he could have examined the juror more fully after appellee's counsel had concluded, had he cared to do so. The failure of a party to test prospective jurors, as to matters which might disqualify them, operates as a waiver of the peremptory right to a new trial on that account. Jackson v. McFadden, 260 Ala. 109, 69 So. 2d 286.
No reversible error appears in the record and the judgment is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 21, 1956 |
849ea099-b620-4c13-b9eb-99a4489717e2 | Socier v. Woodard | 88 So. 2d 783 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 783 (1956)
Erma Evangeline SOCIER
v.
J. C. WOODARD.
6 Div. 23.
Supreme Court of Alabama.
June 21, 1956.
*784 Ben F. Ray, Birmingham, and John H. Chapman, Cullman, for appellant.
Finis E. St. John, Cullman, for appellee.
PER CURIAM.
This is an appeal by defendant from a judgment against her in favor of plaintiff for personal injuries sustained by him in a collision between trucks driven by each separately. The trucks were traveling north on Highway 31 which has four lanes, two for traffic in both directions. The four lanes are divided by a concrete "island" about four feet wide with sloping sides and is six inches higher than the road. At a point about seven miles north of Cullman where the terrain is very rough, in a mountainous region, the road extends along a high fill in a deep valley and up beyond the valley is an extended incline. The distance from one crest to the other is about two and one-half miles.
As plaintiff's truck passed over the crest going north, he saw defendant's truck going in the same direction. Both were in the right of the two lanes for northbound traffic. The time was about 1:30 p. m. Plaintiff's truck was a one ton Ford carrying newspapers out from Birmingham. Defendant was driving a three quarter ton Chevrolet truck pulling a house trailer. Her husband was in the truck with her. Just before the point of contact defendant was traveling about thirty to thirty-five miles per hour and plaintiff was traveling about forty to forty-five miles per hour. Plaintiff testified that about fifty yards behind defendant's truck he gave a loud signal with his horn indicating a desire to pass and turned into the left lane in order to do so. Plaintiff further testified that without warning defendant turned her truck toward and into the lane in which plaintiff was traveling, and that the rear bumper of her truck (not the trailer) hit *785 his truck in the side and the trucks hitched and both crossed the "island" into the lane for southbound traffic and he lost control of his truck which went down the embankment throwing him out and causing him serious bodily harm. His testimony was corroborated by that of highway patrolman Richey who testified as to the track and skid marks on the road.
Defendant testified that she did not hear defendant's horn blow; did not move out of her lane; did not cause her truck to strike plaintiff's truck, and did not cross the center "island"; but that plaintiff's truck bumped the back end of her trailer causing it to swerve into the other lane, then back to the right and off the pavement and onto the shoulder and then to turn on its side practically ruining the trailer. There was evidence by another traveler, one Garnett who was behind the trucks, saw the accident and corroborated defendant.
We shall consider the assignments of error in the order in which they are argued by appellant.
This assignment of error relates to the refusal of charge No. 3. As to it all that needs be said is that the principle is covered by given charge No. 6.
This assignment relates to refused charge No. 4. This is a "mere accident" charge. Under our decisions neither the giving nor refusal of such a charge is reversible. But the better practice is to refuse it. Conner v. Foregger, 242 Ala. 275, 7 So. 2d 856; Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 31 So. 2d 75.
This assignment relates to refused charge No. 5. We note that if this charge does more than to state that the burden of proof is on plaintiff to prove by the evidence that defendant was negligent which negligence proximately caused the collision and plaintiff's injury, it is erroneous. If it does no more than that it is covered by charges 1 and 2 given at the request of defendant.
This assignment relates to the refusal of the general affirmative charge for the defendant. The testimony of the plaintiff, and the markings on the road as shown by the evidence, as well as the location of each truck after the collision and inferences to be drawn, all are clearly sufficient to justify a finding of negligence on the part of defendant in passing out of the lane in which she was traveling and into the other lane for traffic in the same direction without ascertaining whether to do so would endanger a traveler in such other lane going in the same direction. Section 58(9) (a), Title 36, pocket part Code. See, also, section 17, Title 36, Code. It was also a jury question whether the plaintiff in undertaking to pass and go on beyond defendant's truck exercised due care to sound his horn indicating his purpose and was traveling at a safe distance on the left. Section 12, Title 36, Code. There was conflicting evidence as to both those queries. Their solution was essentially a jury question.
The argument of appellant relies upon Government Street Lumber Co. v. Ollinger, 18 Ala.App. 518, 94 So. 177. The Court of Appeals there stated the law to be that the driver in front owes no duty to the driver of a car trailing except to use the road in the usual way until he has been made aware by signal or otherwise of the desire of the driver of the trailing car to pass. It was pointed out in Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556, that since the Ollinger case the law had been changed in that respect by an amendment in 1927, General Acts 1927, page 373, § 63, which is now section 17, Title 36, Code; see, also, section 58(9)(a), Title 36, Code. Those provisions were in effect *786 when this incident occurred. They make it the duty of the driver in a lane before turning into another lane to exercise due care to see that it is safe to do so. There is a reciprocal duty at that point. Section 12, Title 36, provides that "the driver of an overtaking motor vehicle not within a business district as herein defined shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction". That section (12) was enacted before section 58(9), Code, with reference to traveling in lanes. We think the inherent nature of such lane travel, not in a business area, does not make that warning out of place. See, also, section 58(6), Code. The statute, section 12, Title 36, applies as a safeguard to warn the driver in front not to pass into a different lane at that time. We do not think it within our province to hold that section 12, supra, is not applicable to lane traffic. It serves a useful purpose. It is true that without such signal the forward driver is charged with the duty to ascertain that it would be safe for him to pass into another lane. Section 58(9) (a), supra. But section 12 could very well mean to impose on a driver in the other lane a duty in passing, not in a business area, so that the failure to perform it may be negligence.
Appellant also insists that to find that defendant was negligent in turning to the left and into another lane, in which plaintiff was approaching, is to base an inference of negligence upon an inference of fact that she did turn to the left out of her lane and into that in which plaintiff was then approaching in violation of the rule against basing an inference on an inference. The answer to that is manifest. There was direct testimony given by plaintiff that defendant did that, and a further showing that it was not safe to do so because of his presence. Therefore, there is not an inference of negligence, but a presumption of negligence from violating a statute which is proven by direct evidence supported by the circumstances.
Moreover, the principle does not apply here for it is said that "the fact there was no eyewitness does not present an insuperable obstacle, if proven circumstances suffice, for it is well established that both the cause of an injury and the question of actionable negligence may be established by circumstantial evidence, with the qualification, recognized by the authorities, that the circumstances must be proven and not themselves presumed." Harbin v. Moore, 234 Ala. 266, 175 So. 264, 266; Smith v. Tripp, 246 Ala. 421, 20 So. 2d 870; Griffin Lumber Co. v. Harper, 247 Ala. 616(4), 25 So. 2d 505; Shirley v. Shirley, 261 Ala. 100(14), 73 So. 2d 77.
We think both the questions relative to defendant's negligence and to plaintiff's contributory negligence were properly left to the jury. The evidence was conflicting as to both issues. The affirmative charge was properly refused.
These assignments of error are argued together and relate to given charges 4, 5 and 7. This Court has consistently held that where several assignments of error are grouped and argued together in brief and one is found to be without merit the Court will not consider the others. First National Bank of Birmingham v. Lowery, 263 Ala. 36(3), 81 So. 2d 284. It is there also said that this principle cannot be evaded by including in brief a request that this Court consider each assignment separately and severally. But where several assignments are governed by the same legal principles and argument, it is not objectionable to argue them in bulk in the brief. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141(9), 61 So. 2d 19; White Dairy Co. v. Sims, 230 Ala. 561, 161 So. 812; City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337.
*787 The particular duty here sought to be applied by given charge 4 (assignment of error 3) is prescribed by section 14, Title 36, Code. That charge directs a verdict for plaintiff upon the jury being reasonably satisfied that defendant "was about to be overtaken and passed by plaintiff's vehicle approaching from the rear, that plaintiff had given a suitable and audible signal of his approach, when one hundred feet or more to the rear of defendant's vehicle, that defendant's vehicle did not give way to the right, and you are reasonably satisfied from the evidence that it was negligence under the circumstances for her to do so, and that this negligence was a proximate cause of plaintiff's injuries," and in substance that plaintiff was free from contributory negligence.
Section 14, Title 36, provides for the front driver to give way to the right in favor of an overtaking driver wishing to pass, manifested by a suitable and audible signal. This provision, we think, does not apply to traffic where there are two lanes for travel in the same direction. Section 58(9) (a), supra, has application for such travel, and section 14 would have no field of operation.
We shall show that assignments 4 and 5 relate to charges which have application to two lane traffic in the same direction and are controlled by section 58(9) (a). So that, if there was no error shown by assignments 4 and 5 it will not be necessary for us to examine assignment No. 3 for error.
Charge 5, assignment of error No. 4, directs a verdict for plaintiff predicated upon the hypothesis that the jury are reasonably satisfied from the evidence that defendant in effect violated sections 17 and 58(9) (a), supra, by turning her truck from a direct lane upon the highway without seeing that such movement could be made in safety, and that such failure was negligent and was a proximate cause of plaintiff's injuries and, further, that plaintiff did not commit contributory negligence which proximately caused his injuries.
Charge 7 in assignment of error No. 5 is in legal effect the same as charge 5. Since the evidence shows that there are two lanes for traffic in each direction, we should apply the law applicable to lanes. Charges 5 and 7 seem to give a proper interpretation to the duty prescribed in section 58(9) (a), for lane traffic, and were given without error in respect to defendant's duty owing plaintiff. A verdict for plaintiff is also hypothesized in them upon the jury being reasonably satisfied that plaintiff was free from contributory negligence proximately causing his injuries. Charges 5 and 7 could have been refused without error in that they hypothesized a finding that plaintiff was free from contributory negligence without defining the term as applied to that situation. What duty could have been breached causing contributory negligence? The charges do not explain that. It may be such duty as is prescribed by section 12, supra; but it was not error to give the charges in that form.
There is no other reason urged for granting the motion for a new trial than those which we have considered. It results the judgment of the trial court should be affirmed.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | June 21, 1956 |
2465d358-98dd-405c-a427-0388bcfc8641 | Little v. Redditt | 88 So. 2d 354 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 354 (1956)
T. D. LITTLE et al.
v.
Frank L. REDDITT.
3 Div. 761.
Supreme Court of Alabama.
June 14, 1956.
*355 Hugh M. Caffey, Jr., Brewton, and Godbold & Hobbs, Montgomery, for appellants.
Brooks & Garrett, Brewton, for appellee.
GOODWYN, Justice.
This is an appeal by the complainants below from a decree sustaining demurrer to a bill for declaratory judgment.
The bill seeks a decree declaring null and void a purported option for renewal of a lease on real estate because of an absence of any lawful consideration therefor.
In substance, the facts alleged in the bill are as follows:
On February 1, 1946, one Claribel Mason Harb leased the premises from complainants' predecessor in title for a ten-year term ending on January 31, 1956. On February 27, 1948, the said Claribel Mason Harb and complainants' predecessor in title executed the following instrument:
On August 12, 1948, the respondent acquired from Claribel Mason Harb all of her rights under the lease and purported option agreement.
The position taken by complainants is that there was no lawful consideration for the purported option agreement, "which fact is apparent from the instrument itself", and that for this reason said agreement is void.
The bill appears to have been filed on November 16, 1955, prior to the expiration of the ten-year term of the original lease. The bill alleges that complainants "have communicated to respondent that Exhibit `B' is void as to the agreements contained therein and have offered to negotiate a new *356 lease with respondent prior to the expiration of the lease attached hereto as Exhibit A but respondent has failed and refused to negotiate with complainants and has communicated his intention to remain in possession of the leased premises under the terms of the instrument attached hereto as Exhibit `B'."
There appears to be no question that the bill presents a bona fide justiciable controversy which should be settled. A threshold question, therefore, is whether it was appropriate to sustain the demurrer.
If a bill for declaratory relief states the substance of a bona fide justiciable controversy, which should be settled, it is sufficient to withstand a demurrer directed to it. In such situation the demurrer should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. This is to say that the test of the sufficiency of such a bill is not whether it shows that the complainant will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. Curjel v. Ash, 263 Ala. 585, 83 So. 2d 293, 296; Curjel v. Ash, 261 Ala. 42, 45, 72 So. 2d 732; Waterworks and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So. 2d 704; Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31, 38 A.L.R. 2d 1100; Carter Oil Co. v. Blair, 256 Ala. 650, 57 So. 2d 64, 66; White v. Manassa, 252 Ala. 396, 399, 41 So. 2d 395; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658; Shadix v. City of Birmingham, 251 Ala. 610, 38 So. 2d 851; McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; Gilmer v. Gilmer, 245 Ala. 450, 17 So. 2d 529; Anderson's Declaratory Judgments, 2d Ed., § 318, p. 743. However, both parties have requested that we determine the validity of the option agreement on this appeal. And since it appears that a question of law only is presented, which will settle the controversy, we will pass on it at this time. Wade v. Bragg, Ala.Sup., 86 So. 2d 829, 830; Mobile Battle House v. City of Mobile, 262 Ala. 270, 272, 78 So. 2d 642; Water Works and Sanitary Sewer Board v. Campbell, 262 Ala. 508, 510, 80 So. 2d 250; Atkins v. Curtis, 259 Ala. 311, 314, 66 So. 2d 455.
The position taken by respondent is that, in executing the writing embracing the option, the parties to the original lease agreement thereby modified or altered its provisions by mutual consent, the original lease agreement at the time being executory; that the consideration for such modification or alteration was the mutual assent of the parties, and that no new or additional consideration was required to make the option binding on the parties and their successors in interest. The following cases are cited in support of this insistance, viz.: Grady v. Williams, 260 Ala. 285, 70 So. 2d 267; Spry v. Pruitt, 256 Ala. 341, 54 So. 2d 701; Spencer v. Richardson, 234 Ala. 323, 175 So. 278; E. T. Gray & Sons v. Satuloff Bros., 213 Ala. 526, 105 So. 666; Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552; Dickey v. Vaughn, 198 Ala. 283, 73 So. 507; Wellden v. Witt, 145 Ala. 605, 40 So. 126; Mylin v. King, 139 Ala. 319, 35 So. 998; Dunaway v. Roden, 14 Ala.App. 501, 71 So. 70.
Respondent takes the further position that an actual consideration for the option, referred to in argument as "the amendment to the lease agreement," is shown by the recital that the option is given "in further consideration of said rental"; that the consideration for an option agreement need not be more than nominal, and that a recited valuable consideration, whether adequate or not, makes the option binding. In support of this, the following cases are relied on, viz.: Bethea v. McCullough, 195 Ala. 480, 70 So. 680; Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L.R.A. 148.
Respondent refers to the 1948 writing as an "amendment" of the 1946 agreement. But the later writing contains no provision changing the terms or conditions of the earlier agreement in any respect. The later writing does no more than grant an option to renew or extend the 1946 lease. In no way does it modify, amend or change said *357 lease. To the contrary, the original lease continued in full force and effect without change. Clearly, it seems to us, the 1948 writing, although in the form of an amendment to the 1946 agreement, is not, in fact, amendatory of said agreement at all, within the mutual consent rule relied on by respondent.
While it would have been perfectly proper to have included the option provision in the original lease, and if included therein it would have been supported by consideration, we do not think the option here is so supported.
If the 1948 writing could be said to be based upon consideration, it became an option contract and, as such, irrevocable. On the other hand, if not supported by a consideration it was a mere offer by the landlord to the tenant, which was revocable until accepted. Such an offer is usually referred to as an option. Restatement, Contracts, § 24, Comment C. The making of an offer is not the creation of a contract, and does not, in and of itself, have binding force, either at law or in equity, on the offerer. It is merely an offer which the offerer may revoke so long as he does so before the offeree accepts it. 5 Williston on Contracts, Rev.Ed., Sec. 1441; 1 Corbin on Contracts, § 263.
So, the pertinent inquiry is whether the 1948 writing was without consideration and thus a mere offer, or an option supported by a consideration and thus a binding contract. As we understand it, there is no question here about the tenant accepting the offer before it was revoked by the landlord so as to ripen the offer into a contract binding on the parties. And there seems to be no doubt that the tenant assumed no obligation nor released any right in executing the 1948 writing. Hence, the landlord's offer or promise was not supported by a consideration and could be withdrawn at any time before its acceptance by the tenant.
The "mutual assent" rule approved in the cases, supra, relied on by respondent does not apply to this case. It seems to us that what was said in Shriner v. Craft, 166 Ala. 146, 151-152, 155, 51 So. 884, 886, 28 L.R.A.,N.S., 450, 139 Am.St.Rep. 19, is more pertinent, viz.:
Nor do we think there is any merit to the insistence that the recital in the option that it was made "in further consideration of said rental" afforded consideration for the option. Respondent was already under obligation to pay the rental. "It is an established principle that the doing or undertaking to do only that which one is already under a legal obligation to do by his contract is no consideration for the secondary, subsequent, or new agreement." Moore v. Williamson, 213 Ala. 274, 277, 104 So. 645, 648; 42 A.L.R. 981, supra, and cases there cited; 17 C.J.S., Contracts, § 112, p. 465; 12 Am.Jur., Contracts, Sect. 88, p. 582.
From what we have said it follows that the demurrer should have been overruled.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur. | June 14, 1956 |
0c88e1b8-a5d7-409e-9e60-767bf75564f6 | Ex Parte National Association for Advancement of Colored People | 91 So. 2d 221 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 221 (1956)
Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation.
In re: STATE of Alabama, ex rel. John PATTERSON, Atty. Gen.,
v.
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE.
3 Div. 773.
Supreme Court of Alabama.
August 13, 1956.
Rehearing Denied December 6, 1956.
Arthur D. Shores, Birmingham, Fred D. Gray, Montgomery, and Robt. L. Carter, New York City, for petitioner.
John Patterson, Atty. Gen., for respondent.
PER CURIAM.
The averments of the petition for writ of certiorari in this cause are insufficient to warrant the issuance of the writ. The petition is, therefore denied.
All the Justices concur. | August 13, 1956 |
d2b97abb-ac82-4b8c-8b45-f851b527dd49 | Stewart v. Weaver | 87 So. 2d 548 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 548 (1956)
Mrs. Carlle STEWART and Leola S. Ogletree
v.
Arthur WEAVER.
3 Div. 743.
Supreme Court of Alabama.
May 10, 1956.
*549 H. C. Rankin, Brewton, for appellants.
Brooks & Garrett, Brewton, for appellee.
SIMPSON, Justice.
Mary Mantel, now deceased, executed and delivered a deed of conveyance of certain real estate to appellee, Arthur Weaver, reserving to herself the life estate. The deed contained the following clause:
An express forfeiture clause followed the above recited conditions.
Mary Mantel, during her lifetime, entered on the probate records of the county an instrument seeking to declare a forfeiture of the conveyance, because allegedly Weaver failed to comply with the above quoted conditions.
By the terms of the deed grantee Weaver was required to perform the conditions only during the lifetime of grantor Mantel. Approximately eight (8) months after the conveyance, Mantel, as stated, attempted to declare or invoke a forfeiture.
This is an appeal from a final decree in which the trial court granted relief to the complainant, Weaver, cancelling the attempted instrument of forfeiture. The relief granted was based on a finding by the trial court of a substantial compliance by the grantee, Weaver, with the conditions subsequent expressed in said deed. Appellants claim title to the property in question under the terms of the will of the grantee, Mary Mantel.
The issue, as framed by the pleadings, was whether or not the grantee had performed the foregoing conditions subsequent contained in the deed.
Appellants, in assignments of error 15, 16 and 17, raise the question of the sufficiency of the evidence to sustain the court's finding. The case was tried by the court, *550 ore tenus. His findings, therefore, will not be disturbed unless plainly and palpably wrong. Turner v. Turner, 261 Ala. 129, 73 So. 2d 549; McSwean v. McSwean, 204 Ala. 663, 86 So. 646.
Conditions subsequent are not favored in the law and they are strictly construed as they tend to the destruction of estates. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A.,N.S., 663; Seaboard Air Line R. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187; 3 Thompson on Real Property, §§ 1957, 1958. "A substantial performance of the condition discharges it, and it is for the jury to say whether the condition has been in substance performed." Thompson on Real Property, supra. Yazoo & M. V. R. Co. v. Lakeview Traction Co., 1911, 100 Miss. 281, 56 So. 393, 396; 1 Tiffany Real Property, 335. Nor does the law look with favor upon forfeitures. Yazoo & M. V. R. Co. v. Lakeview Traction Co., supra. And where no time limit is fixed by the deed, the performance of the condition must be within a reasonable time; what amounts to a reasonable time is a question of fact. Seaboard Air Line R. Co. v. Anniston Mfg. Co., supra.
With the above guiding legal principles a review of the evidence will be made.
There was evidence of repairs to the house by appellee prior to and following the grantor's attempted forfeiture. The evidence shows that the grantee spent approximately $100 on repairs and that he received approximately $100 in rent prior to said attempted forfeiture. The evidence shows that the grantor received from the grantee $12 a month from the time of the conveyance until her death. The undisputed evidence shows that the house was continuously rented; the testimony of some of the tenants shows that repairs were made by the appellee. The evidence also shows that the tenants continued to pay rent to the appellee and this after the grantor instructed them to pay said rent to her. Appellee testified that neither the grantor nor the tenants complained to him that the house was not in good condition. We have not attempted to set out all the evidence. The above recital is sufficient to show that the trial court's findings relative thereto are not plainly and palpably wrong. Appellant takes nothing therefore by assignments of error 14, 16 and 17.
That we may not be committed to a holding outside the scope of the issue in the case at bar, viz., performance vel non of conditions subsequent by the grantee, the following observations are made. The estate (estate upon a condition subsequent) conveyed to the grantee is not divested merely by the grantee's breach of the condition, but continues until "`the grantor * * * take[s] advantage of the breach of the condition, and make[s] an entry or claim in order to avoid the estate.'" Sherill v. Sherill, 211 Ala. 105, 99 So. 838, 839. We pretermit decision of whether the grantor elected to forfeit or elected to refrain from forfeiture, i. e., whether the grantor's method of invoking a forfeiture amounted to an election to forfeit, i. e., a re-entry, or whether the grantor's action in accepting rents until her death and permitting the grantee to make improvements after the alleged breach amounted to a loss of the power to declare a forfeiture by a waiver thereof. See 1 Simes Law of Future Interests, § 170.
Whether or not the grantor asked the grantee if he were able to put a roof on the house and make the repairs was immaterial on the issue of whether or not the conditions of the deed were broken. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389.
An error in excluding evidence as to a certain fact is harmless where the fact is established by other evidence. Ginsberg v. Haas, 220 Ala. 308, 124 So. 875; Dees v. People's Bank, 200 Ala. 543, 76 So. 901; Griswold v. Duke, 224 Ala. 402, 140 So. 427. The financial condition of the grantor at the time she made the deedif conceded to be pertinentwas proved by the testimony of Carlie Stewart and Ed Leigh McMillan and not denied, hence there was no error in refusing such proof by other witnesses (assignments 3, 8 and 10).
*551 Appellants argue assignments of error 4 and 5 in bulk. When this is done, if any assignment be without merit the others will not be considered. Gilliland v. Dobbs, 234 Ala. 364, 174 So. 784. The refusal to allow evidence of the reasonable rental value of the house from the date of the grantor's death is the basis of assignment of error 5. Other evidenceif conceded to be relevantestablishing this fact was admitted and not disputed. This assignment, therefore, cannot be sustained. Ginsberg v. Haas, supra; Griswold v. Duke, supra; Dees v. People's Bank, supra. This being true, assignment of error 4 fails also.
Appellants complain of the refusal of the trial court to allow a witness to read the contents of a letter. Without deciding whether this was error, appellants were not prejudiced by this action; the letter itself was a part of the evidence.
Assignment of error numbered 7, not argued sufficiently in brief, will not be considered. See Volunteer State Life Ins. Co. v. Danley, 33 Ala.App. 543, 36 So. 2d 123; Howell v. Moon, 217 Ala. 421, 116 So. 518.
Where the question does not show on its face what is the expected answer, it is necessary that attention be called to the proposed answer and that the answer be relevant evidence, to invoke a review of the trial court's sustaining of an objection interposed thereto. See Burnett v. Garrison, 261 Ala. 622, 75 So. 2d 144. Assignment of error numbered 9 is therefore without merit.
Appellants complain of the action of the trial court in refusing to allow a witness to testify as to statements by the deceased grantor to the witness to the effect that the appellee had failed to make repairs. This evidence was inadmissible as hearsay. See Napier v. Elliott, 177 Ala. 113, 58 So. 435; Reeves v. Reeves, 1922, 207 Ala. 362, 92 So. 551.
The refused evidence which is the basis of assignment of error 12 (amount of rent grantor was to receive) was embraced in other admitted evidence; reversible error cannot therefore be assigned as to this ruling. Appellants argue assignments 12, 13 and 14 together. One being without merit, appellants cannot avail themselves of the others. Gilliland v. Dobbs, supra.
We find no error to reverse.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur. | May 10, 1956 |
5e64720f-4b9d-4277-a849-217230469d17 | Hill v. State | 88 So. 2d 887 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 887 (1956)
Luther (Loyd) HILL
v.
STATE.
7 Div. 309.
Supreme Court of Alabama.
July 26, 1956.
Scott, Dawson & Scott, Fort Payne, for petitioner.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., opposed.
SPANN, Justice.
Petition of Luther (Loyd) Hill for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Hill v. State, 88 So. 2d 880.
Writ denied.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | July 26, 1956 |
58f1cef5-fc39-4a47-9768-7cacaca081b0 | Adams v. Queen Insurance Company of America | 88 So. 2d 331 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 331 (1956)
Kenneth ADAMS
v.
QUEEN INSURANCE COMPANY OF AMERICA.
7 Div. 235.
Supreme Court of Alabama.
May 24, 1956.
Rehearing Denied June 30, 1956.
*333 Evans & Norred, Anniston, for appellant.
Davies & Williams, Birmingham, for appellee.
LAWSON, Justice.
On August 28, 1952, Kenneth Adams, a resident of Anniston, was informed by police officers of that city that they had reason to believe that a 1950 Pontiac which Adams had in his possession was a stolen automobile. The police officers asked Adams to turn the automobile over to them so they could make a thorough investigation. Adams delivered the car to Captain Pate, the then captain of detectives of the city of Anniston, for the sole purpose for which the request had been made and in delivering the car to Captain Pate, Adams did not abandon his claim of ownership or concede that the car had been stolen.
A few days later, on September 3, 1952, Adams, accompanied by his lawyer, went to the office of Captain Pate where they discussed the ownership of the automobile with Pate and with Edwin M. Cole, an independent insurance adjustor, who on that occasion was representing the Queen Insurance Company. At that meeting Captain Pate informed those present that his investigation showed that the automobile in question had been stolen from a resident of Birmingham by the name of Leonard Salit, who had been compensated for his loss by his insurance carrier, the Queen Insurance Company. Over the objection of Adams and that of his attorney, Captain Pate delivered *334 the automobile to Cole as the agent of Queen Insurance Company. Cole drove the automobile to Birmingham, where it was stored and where it was later sold to a party not here involved.
Within a few days after the car was delivered to Cole, Adams filed this suit in trover in the circuit court of Calhoun County against the Queen Insurance Company seeking damages for the conversion of the automobile. The defendant filed a plea of the general issue and several so-called pleas of recoupment, which we need not here consider. There was a jury verdict in favor of the defendant. Judgment was in accord with the verdict. Plaintiff's motion for a new trial being denied and overruled, he has appealed to this court.
Over the objection of the plaintiff, the defendant's witness Salit was permitted to testify that his 1950 Pontiac automobile was "taken" from his residence sometime in May, 1952. We do not concede that such ruling of the court was erroneous, but if so it was rendered harmless inasmuch as the trial court subsequently excluded that statement of Salit when it was disclosed on cross-examination that he was not at home on the night when his car is alleged to have been taken from the driveway of his residence. Killian v. Everett, 262 Ala. 434, 79 So. 2d 17; Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543.
The witness Salit was allowed over plaintiff's objection to testify that at the time his car disappeared from his residence that he carried a policy of insurance with Queen Insurance Company. This was not an attempt to prove the contents of the policy, but was merely a statement of the policy's existence. The best evidence rule has no application. There was no error in this ruling of the trial court. Empire Securities Co. v. Webb, 202 Ala. 549, 81 So. 51; Greil Bros. Co. v. McLain, 206 Ala. 212, 89 So. 505; American Ry. Express Co. v. Stanley, 207 Ala. 380, 92 So. 642.
During the direct examination of the witness Salit counsel for the defendant propounded this question: "I will ask you to state whether or not you were paid for the theft of that vehicle." Counsel for the plaintiff objected to the use of the word "theft" as being a conclusion. The objection was overruled and the plaintiff took an exception. Even if it be conceded that there was error in this ruling of the trial court, which we do not decide, such error was without injury to the appellant, plaintiff below, since the evidence offered by the plaintiff was to the same effect. One of the interrogatories propounded to the defendant by the plaintiff, which interrogatories and the answers thereto were introduced by the plaintiff, was as follows: "3(a) State whether or not the Queen Insurance Company of America has compensated Salit for the loss resulting from the theft of his 1950 Pontiac. (b) State the amount of the compensation paid to him." The answer to these questions reads as follows: "Yes, this defendant paid to Mr. Salit the sum of $1950 for the theft of the vehicle and also paid him $140.02 for the loss of use of said vehicle." Simmons v. Cochran, 252 Ala. 461, 41 So. 2d 579.
P. O. Wilson, vice-president of Shaver Pontiac Company, of Birmingham, a witness for the defendant, testified that on or about July 14, 1950, his company sold a 1950 Pontiac automobile to Leonard Salit. Over the objection of the plaintiff, the witness was permitted to testify that sometime in 1952 that car was stored in the shop of Shaver's Pontiac, Inc. At the time the witness Wilson made that statement not all the facts showing his familiarity with the automobile sold Salit in 1950 had been elicited. Such facts were shown by his subsequent testimony and we think the knowledge disclosed in the witness's entire examination qualified him to state that he saw the same automobile in 1952. The establishment of such facts cured any error, if there was one, in permitting the witness to testify as indicated above. Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16.
*335 During the course of the examination of the witness Wilson, he was asked by counsel for the defendant the following question: "In your judgment, based on having seen the car before, and having seen the car in the Fall of 1952, and from your inspection of that carthe numbers on itstate whether or not, in your judgment, the car which you saw in the Fall of 1952 that was brought in there by Mr. Cole, was one and the same car that had been sold to Mr. Salit in 1950?" Counsel for the plaintiff interposed the following objection: "Object, that calls for expert testimony in a field in which Mr. Wilson is not qualified as an expert, and invades the province of the jury, calls for conclusion as to an ultimate fact, and on the further ground that the facts on which he might predicate this conclusion has not been presented to the jury." The trial court overruled the objection and after the plaintiff excepted the witness answered: "It is my judgment it was the same car."
Whenever the identity of a thing is in issue, a witness who speaks from personal knowledge and observation may testify to his opinion on the subject. Turner v. McFee, 61 Ala. 468; Mitchell v. State, 94 Ala. 68, 10 So. 518; Shows v. Brunson, 229 Ala. 682, 159 So. 248; Stephens v. State, 1 Ala.App. 159, 55 So. 940; Miller v. Millstead & Hill, 17 Ala.App. 6, 81 So. 182. Wilson's identification of the automobile was positive and therefore not subject to the objection that it was a conclusion of the witness. Richardson v. Impey, Tex. Civ.App., 94 S.W.2d 490. Prior to the time the question was asked the witness it had been clearly shown that he was thoroughly familiar with the automobile when it was sold to Salit and had in his possession a copy of the bill of sale executed by his company at the time the automobile was sold and delivered to Salit and that he had found on the automobile in question, at a place not disclosed, the motor serial number appearing on the bill of sale. There was other testimony going to show the witness' personal knowledge and observation sufficient to enable him to express his opinion as to the identity of the automobile.
Salit testified that he did not remember executing a "written agreement" to the effect that after the Queen Insurance Compaid paid him for his loss that title to the automobile covered by the policy of insurance would be in the insurance company, but stated that in the latter part of June, 1952, an oral agreement to that effect was entered into between himself and Cole as agent for the insurance company. Cole later testified to the same effect. On crossexamination Cole stated that on a written proof of loss executed by Salit on August 4, 1952, he, Cole, wrote in "longhand" these words: "Title to car reverts to company when and if recovered." On further crossexamination, upon being shown a proof of loss which the plaintiff had introduced as part of the answers made by defendant to interrogatories propounded by plaintiff, the witness Cole said that the following words were undoubtedly included in the printed form at the time it was signed by Salit: "The insured hereby subrogates the said company to all rights and causes of action the said insured has against any person, persons or corporation whomsoever to the extent of amount claimed above for damage arising out of or incident to said loss or damage to said automobile."
Counsel for plaintiff then stated to the court: "* * * We move to exclude the testimony of Mr. Cole and of Mr. Salit relating to the effect that there was an oral agreement with the insurance company that the Queen Insurance Company would be subrogated to the rights of Mr. Salit, on the grounds that it affirmatively appears from the evidence that such subrogation agreement had been entered into in writing, and therefore there is higher and better evidence before this court." The motion was overruled and the plaintiff took an exception. There is no merit in the contention that the trial court erred to reversal in overruling the motion to exclude on the grounds asserted. The written agreement was in evidence. It had been introduced by the plaintiff and the fact that *336 there was such an agreement did not prevent the defendant from making proof that there was also an oral agreement. If it can be said that the proof of loss did not relate to the car in question because the motor number there set out was P810H74187, whereas the correct motor number of the Salit automobile was P8TH74187 then the existence of the proof of loss would certainly not prevent evidence of an oral agreement relating to the car lost by Salit. However, we think it clear that there is a typographical error in the proof of loss as to the motor number and that the proof of loss relates to the car purchased by Salit from Shaver Pontiac, Inc., on July 14, 1950, bearing the motor number P8TH74187. We think the error self-correcting, as we do that which appears in the invoice or bill of sale under which plaintiff claims title. In his bill of sale the motor number is given as P8TH52946, whereas the complaint alleges the number to be P8TH52496.
The trial court did not err in permitting the witness Wilson to testify that when he examined the automobile in question he found thereon a motor number which corresponded with the original motor number appearing on the car which his company had sold to Salit. It was not incumbent upon the defendant to show the place on the car where the number was located before the witness would be entitled to make the definite statement of fact as to finding the number on the car in question.
The appellant contends that the trial court erred in refusing to give at his request the general affirmative charge with hypothesis. In considering that question we review the evidence in the light most favorable to the defendant, for where an affirmative charge is refused and the party requesting the charge appeals, the entire evidence is viewed in the light most favorable to the opposite party and where reasonable inferences may be drawn adverse to the party who requested the charge, the action of the trial court in refusing the charge must be affirmed. Hasty v. Hasty, 260 Ala. 90, 69 So. 2d 282; Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So. 2d 388.
The evidence for the plaintiff is to the effect that he purchased the automobile in question from one J. H. Blanney on May 26, 1952, at Huffman, Alabama, which is near Birmingham. Plaintiff had never seen Blanney before that date but yet he paid him the sum of $1400 cash for the automobile. Plaintiff has not seen Blanney since that time. Plaintiff received a bill of sale from Blanney whereon appeared a motor number almost identical with that which appeared on the automobile at the time it came into plaintiff's possession and which remained there until the automobile came into the hands of the defendant.
However, evidence for the defendant is to the effect that the original motor number had been removed from the motor block and another inserted thereon and there is evidence for the defendant going to show that the motor number which appeared on the automobile sold to Leonard Salit in 1950 also appeared on the car in question in a "secret place" after it left the possession of plaintiff. There was other evidence which we will not here set out which tends to show that the automobile acquired by plaintiff in May of 1952 is the same as that purchased by Salit in July of 1950. The answers to the interrogatories which plaintiff introduced in evidence tend to show that the Salit automobile was stolen on or about May 21, 1952. In our opinion the evidence amply supports a finding that the defendant had become subrogated to the rights of Salit at the time of the alleged conversion.
Appellant argues that irrespective of whether or not the evidence tends to show that the automobile in question belonged to Salit and that he has attempted to convey his interest therein to the defendant such conveyance is invalid: "since the law in Alabama is that an attempted sale of personalty by one claiming title to it is void as against one who was holding it adversely at the time of the attempted sale."
*337 In support of that statement the following cases are cited: Posey v. Gamble, 148 Ala. 660, 41 So. 416, and Huddleston v. Huey, 73 Ala. 215. We are not here concerned with any question of champerty or maintenance. Under the long settled law of this state, as elsewhere, an insurer carrying the risk of loss from the tortious act of a third person is upon payment of such loss subrogated to the cause of action of the insured, and may sue in the insurer's own name, or in the name of the insured for the use of the insurer. Fidelity & Guaranty Fire Corp., Baltimore v. Silver Fleet Motor Express, Inc., 242 Ala. 559, 7 So. 2d 290. If the insurer has the right to maintain suit in his own name under those circumstances, certain it is that it can defend in a suit of this kind.
We are clear to the conclusion that the evidence presented a jury question as to whether or not the defendant was the owner of the automobile at the time it came into its possession on September 3, 1952, the date of the alleged conversion, and that the trial court did not err in refusing the general affirmative charge with hypothesis requested by the plaintiff.
It is also insisted that the trial court erred in overruling grounds of the motion for new trial taking the point that the verdict of the jury and the judgment rendered thereon were contrary to the great weight of the evidence. We see no reason to make a more detailed statement of the evidence. It has been read with considerable care and we think the evidence not only made a case for the jury's determination, but we feel that the verdict is well supported by the evidence. Certainly the preponderance of the evidence was not so decidedly against the verdict as to convince us that it was wrong and unjust. Howell v. Greyhound Corp., 257 Ala. 492, 59 So. 2d 587. Adding support to this conclusion is the long-recognized principle that where the presiding judge, as here, refuses to grant a new trial the presumption in favor of the correctness of the verdict is thereby strengthened. Tucker v. Thompson, 263 Ala. 516, 83 So. 2d 238.
Where the plaintiff acquired the money with which to pay for the automobile is not an issue in this case and no evidence along that line was offered. But in argument to the jury counsel for plaintiff made the following statement: "They want to know where Mr. Adams got the money he paid for this car. Well, he got it by putting gas in cars and pumping air in tires." Objection of defendant to that statement was sustained, to which action the plaintiff excepted. From the statement itself it would appear that it was made in answer to an argument of counsel for defendants and if so we think the trial court might have overruled the objection without error. But we do not feel that in sustaining the objection the trial court erred to a reversal for, broadly speaking, the rule is that what constitutes proper argument by counsel to the jury must be left largely to the enlightened judgment of the trial court with presumptions in favor of its ruling.
Charge No. 10 given at the request of the defendant could only have application in the event the jury found for the plaintiff. Since the verdict was for the defendant, the giving of this charge was without prejudicial error regardless of other questions. Rogers v. Crow, 244 Ala. 533, 14 So. 2d 157; H. J. Crenshaw & Co. v. Seaboard Air Line R. Co., 219 Ala. 206, 121 So. 736; Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33.
The defendant's given charge 12 in our opinion states a correct proposition of law and hence its giving does not constitute reversible error.
Under the evidence in this case the automobile while in the possession of Captain Pate must be considered as being in the possession of the plaintiff and hence under the rule of our cases such possession was sufficient for the plaintiff to maintain the action of trover against one who afterwards came into possession without title, or who received the possession from one who came into possession without title, unless *338 the defendant connected his possession with the better title. Lowremore v. Berry, 19 Ala. 130; Cook v. Patterson, 35 Ala. 102; Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339. While the burden of proof was upon the plaintiff to make out his case, he did not have the burden of proving a negative, that is, that the defendant did not have title. Defendant's charge 15 has a tendency to mislead in that respect and might well have been refused for that reason. However, we are not willing to say that the judgment below should be reversed because of the giving of this charge inasmuch as the plaintiff could have requested an explanatory charge.
Appellant contends that the trial court erred to a reversal in overruling the ground of motion for a new trial which took the point that the judge who tried the case did not receive the verdict. In substance that ground of the motion for new trial alleges that the cause was tried before the Hon. Leslie C. Longshore, one of the judges of the Seventh Judicial Circuit, who because of circumstances beyond his control was unable to be in court when the jury announced that it was ready to return a verdict; that Judge Longshore requested the other judge of the Seventh Judicial Circuit, the Hon. W. D. DeBardelaben, to receive the verdict; that Judge DeBardelaben inquired as to whether it would be agreeable with both sides for him to receive the verdict; that counsel for neither side expressly agreed for Judge DeBardelaben to receive the verdict but they did not express any objection to that procedure.
While there seems to be some difference of opinion on the subject, we think that the better rule is to the effect that where the judge who tried the case cannot be present to receive the verdict, it may be received by another judge of that court. Lease v. G. & A. Truck Lines, Inc., 120 Ind.App. 78, 90 N.E.2d 351; Culver v. Lehigh Valley Transit Co., 322 Pa. 503, 186 A. 70; Eastley v. Glenn, 313 Pa. 130, 169 A. 433. We feel that if counsel for the parties intended to seek to set aside the verdict on the ground that the verdict was to be received by a judge other than the judge who tried the case, it was incumbent upon counsel to expressly interpose an objection to that procedure. See Rasmus v. Schaffer, 230 Ala. 245, 160 So. 244.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
89f81de8-2e84-4080-989f-d0c67601cfea | JAMES A. HEAD & COMPANY v. Rolling | 90 So. 2d 828 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 828 (1956)
JAMES A. HEAD & COMPANY, Inc.
v.
Fred ROLLING et al.
6 Div. 954.
Supreme Court of Alabama.
September 13, 1956.
Rehearing Denied November 29, 1956.
*832 Lange, Simpson, Robinson & Somerville, Reid B. Barnes, Jas. A. Simpson and Dan J. Meador, Birmingham, for appellant.
Lucien D. Gardner, Leigh M. Clark, J. Asa Rountree, III, and Cabaniss & Johnston, Birmingham, for appellees.
MERRILL, Justice.
James A. Head & Company, Inc., a corporation in Birmingham, hereinafter referred to as "Head," is and has been engaged in the office supply business. The president of the Company, James A. Head, is the majority stockholder in the corporation and is practically the alter ego of the corporation.
Carl Bryson, Bob Bodine and Fred Rolling had been employees of the company for various periods of time; Bryson since 1926, Bodine since 1936 and Rolling since 1946. The first two named were directors of the corporation until 1952.
The company's sales were of two types. Ordinary or commercial sales were made to *833 individuals who desired office equipment or supplies, and "contract" sales were made to schools, churches, hospitals and institutions, where large orders of equipment were installed. Bryson and Rolling were employed to make and service "contract" sales, while Bodine's sales were of the commercial type.
Prior to August 1, 1949, Bryson and Rolling became dissatisfied with the terms under which they were employed, and were contemplating severing their relations with the company. Negotiations ensued between them and Mr. Head, which resulted in a new contract of employment. This contract was never reduced to writing and signed by the parties, but Mr. Francis Latady, an attorney and Head's accountant and financial adviser, who sat in on the negotiations, prepared a draft of a contract which contained most of the things agreed upon, but it was not totally satisfactory to any of the parties, and was never signed. This draft is referred to by the parties as the "Latady Draft." The essence of the contract was that Bryson, Rolling and the company would each receive one-third of the net profits of a new department which would be known as the "contract department" and that Bryson and Rolling were to manage this department. The net profits were to be arrived at by deducting $9,000 each year for certain itemized expenses, plus all direct expenses.
Mr. Head became dissatisfied with this new agreement, because Bryson and Rolling began making a large amount of commercial or ordinary sales, which Head contends were outside the scope of the "contract" department, and Head felt their compensation was too large and their "commercial" sales worked to his disadvantage.
Mr. Head notified both Rolling and Bryson on October 30, 1951 that the contract of employment would be terminated as of December 31, 1951, but that he would like to enter negotiations for a new contract with them. These negotiations proved futile and Rolling and Bryson both submitted their resignations on December 14 and 15, 1951, effective on December 31 of that year. Bodine submitted his resignation on December 16, 1951, also effective on December 31 of that year.
On January 2, 1952, a partnership was formed by the three former employees under the name of Bodine-Bryson & Rolling to engage in the office supply business. One Mrs. Pace, who had been Bryson's secretary, resigned on December 31, 1951 and went with the new partnership. Eventually, 9 former Head employees came to work with the new business.
Immediately upon forming the partnership, Bryson and Rolling began the aggressive solicitation of certain suppliers of lines of merchandise for which Head had been the exclusive dealer. A total of seventeen of these manufacturers eventually terminated their dealership contracts with Head and made new ones with the partnership.
In March and April 1952, Bryson and Rolling began demanding settlement from Head for their share of the profits on business done under their agreement. Head refused to make any settlement and on August 26, 1952, Bryson sued James A. Head & Company, claiming $66,368.25 in a complaint embodying the common counts and a count based on alleged breach of an oral contract. Rolling filed a like suit for $66,836.66 on the same day. On motion of the company, these cases were transferred to the equity side of the court and, as required by the case of Cornelius v. Moore, 208 Ala. 237, 94 So. 57, Head filed its bill of complaint and has since been treated as the complainant.
The tenor and gist of these bills of complaint was that during the period of their employment by complainant and/or immediately after its termination respondents Rolling and Bryson solicited and induced a large number of manufacturers, then selling their products through complainant, to cancel these existing relationships with complainant and to transfer their agencies to respondents or to a partnership called Bodine-Bryson & Rolling, which had been *834 organized by respondents in association with J. R. Bodine (likewise an employee of complainant) to carry on the same type of business as that engaged in by the complainant. They also employed several experienced and trained employees from complainant's organization and began business as of January 2, 1952, and within weeks had twenty-two manufacturers agencies, seventeen of which were with complainant as of December 31 previously and with eleven personnel, including the three partners, nine of whom came out of complainant's organization. The complainant prayed appropriate relief for the breach of the fiduciary duty of respondents not to interfere with the existing relationships between complainant and said manufacturers.
Respondents filed answers and cross bills; the general effect of the answers was to deny all charges of any breach of fiduciary relationship. They admitted that subsequent to December 31, 1951, seventeen manufacturers and producers had transferred their representation from complainant to respondents, but that such action was free and voluntary and occurred without any illegal, inequitable or improper inducement, enticement or coercion on the part of respondents; also that former employees of the company were working for them, but denied that such action was the result of any improper conduct on the part of respondents or anyone acting in their behalf. The effect of the cross bill was to set up the cause of action contained in their suit at law and prayed for an accounting of the amounts due them as employees of complainant.
The two cases were consolidated for trial and after lengthy hearings, the trial court on March 14, 1955, entered a decree finding the issues in favor of the respondents, "except with respect to such damages as may have been caused by the removal from its premises of certain books and papers," and except that complainant was entitled "to an accounting for certain sales made by respondent partnership to Alabama Educational Foundation."
This decree was entered on the last day that Judge Eugene H. Hawkins was in office, he having resigned, effective the following day. The complainant filed an application for rehearing which was presented to the court, with the Hon. Frank B. Embry presiding. The court entered a decree denying jurisdiction of the application for rehearing, on the grounds that it had not been duly continued to a day certain, and also because under equity rule 62, Code 1940, Tit. 7, Appendix, an application for rehearing must be presented "to the judge who rendered the decree."
The complainant then appealed from the final decree of March 14, 1955 and also from the decree denying jurisdiction of the application for rehearing. The appellees moved to dismiss that part of the appeal taken from the decree declining to consider the application for rehearing. This motion is granted. On appeal this court will not review the action of the lower court in declining to consider a motion for a new trial or an application for a rehearing. See Baggett Transp. Co., Inc., v. Avery Freight Lines, Inc., 256 Ala. 615, 56 So. 2d 669; Hurt v. Knox, 220 Ala. 448, 126 So. 110; Western Ry. of Alabama v. Wallace, 170 Ala. 584, 43 So. 533. And even if the court had considered the application and merely entered a decree overruling it, no appeal would lie from such decree, and it cannot be made the basis of an assignment of error. See McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160; Whitman v. Whitman, 253 Ala. 643, 46 So. 2d 422; Rudolph v. Rudolph, 251 Ala. 317, 36 So. 2d 902; Spurling v. Spurling, 250 Ala. 612, 35 So. 2d 502. Moreover, the court had lost jurisdiction of the decree. Title 13, § 119, Code 1940. But we do not agree that a party can be denied a rehearing in the circuit court because of the inability of the applicant to present the application "to the judge who rendered the decree." We would be compelled to construe the words trial "judge" and trial "court" as being synonymous when it is impossible to present the application to the judge who rendered *835 the decree. Russell v. Sunburst Refining Co., 83 Mont. 452, 272 P. 998. See Faust v. Faust, 251 Ala. 60, 36 So. 2d 229; Chambless v. Black, 250 Ala. 604, 35 So. 2d 348. However, as already noted, the other ground on which the application was refused was well taken.
The record in these consolidated cases comprises over 2,500 pages; the appellant's briefs consist of 299 pages and appellees' briefs of 270 pages. There are 107 assignments of error in one case, 106 in the other. We consider applicable what was said in Shepherd v. Sartain, 185 Ala. 439, 64 So. 57, 65: "To assert that we have compassed the enormous task here imposed upon us, involving as it does innumerable questions of fact as well as of law, without mistake more or less numerous, would be an unbecoming assumption of judicial infallibility. That we have reached an approximately correct result we have, however, no reason for seriously doubting."
Argument in brief is assigned to 106 assignments of error in one case and to 105 in the other, but they can be divided into 7 groups for discussion. The first group is concerned with the finding of the court that the contract between the parties was the "Latady Draft." When Head and respondents were negotiating in 1949, Latady sat in on the conferences and he drafted his conception of the agreement which is called the "Latady Draft" and which will be set out by the reporter. Latady gave a copy of this draft to respondents, and a letter is in evidence showing that he had sent a copy to Mr. Head, but Mr. Head testified that he had never seen the draft prior to the trial. The draft was never signed by the parties. The chief conflict in the case is over the terms of the contract the parties actually had between August 1, 1949 and December 31, 1951. Certain it is that they operated under some agreement. No parties were exactly satisfied with the "Latady Draft" but all parties were following it in principle, and the trial court found it to be the contract, subject to a subsequent modification which had been made by mutual agreement. The court resolved the conflicting testimony in favor of the "Latady Draft" and we are not disposed to say that reversible error was committed in so doing.
The next group of assignments of error are concerned with the construction of this contract. First, were net profits to be computed before or after computation of income taxes? Head contended for the latter coursethe respondents for the former. The court decided in favor of respondents. Probably the predominant evidence to the trial court, and certainly to us, is the fact that the income tax returns of James A. Head & Company during the period, prepared by Mr. Latady and signed by Mr. Head, were computed on a profits before taxes basis.
Secondly, it is argued that respondents were to make only such commercial or ordinary sales as were necessary to supply their contracts. According to Mr. Latady, the commercial sales in the contract department in 1949 were $80,000, in 1950 were $347,000 and in 1951 were $426,000. It is understandable that Head did not want to continue an agreement whereby Bryson and Rolling were each receiving one-third of the profits and the company was receiving one-third, when it had a commercial department separate from the contract department to make commercial sales. However, the sales by the commercial department increased from $791,000 in 1950 to $1,089,000 in 1952. Thus the question was not lack of profitable business, but to whom the profits were going. It seems apparent that there was no question by Head about the commercial sales in the contract department until after the outbreak of the Korean conflict, when items in the commercial department were prorated by the suppliers, and both the commercial and the contract departments could sell more than they could supply. However, it is undisputed that the contract department did not make any sales to customers assigned to the commercial department and its salesmen.
*836 The trial court held that the respondents had the right to make these commercial sales under the "Latady Draft." The second sentence of that draft is in pertinent part: "The gross business of the contract Department consists of the sales made by James A. Head & Company, Inc., including contracts, resulting from orders negotiated by C. W. Bryson and/or Fred Rolling, on or after August 1, 1949," seems clearly to support the finding of the trial court, irrespective of the great weight of the testimony that such was the interpretation of the parties.
Thirdly, it is insisted that the court erred in decreeing that "the gross business of the contract department included all sales and contracts resulting from orders negotiated while the contract was in effect, whether completed before or after its termination." Appellant strenuously urges that respondents are entitled to share in no profits accruing after December 31, 1951, the date of the termination of respondents' employment.
It is conceded that appellant's system of accounting of profit and loss in the contract department was the "completed contracts" method. In other words, the profit was not determined until the contract had been completed. Respondents insist that they negotiated and secured many contracts prior to December 31, 1951 which were in various stages of fulfillment on that date. They show that they offered, in writing, to supervise the completion of these contracts in the usual manner after December 31, 1951. Head refused this offer. The trial court found that:
No Alabama case is cited, nor have we found one of ours which is decisive of the question of the right of a person employed on a commission or profit sharing basis to participate in profits or receive commissions after the termination of his employment. The case of Oates v. Lee, 222 Ala. 506, 133 So. 44, 45, cited by appellant, is not in point. There the plaintiff was an automobile salesman on commission. He sold a car on October 4, was discharged on October 14 and the car was delivered and paid for the next day. He sued for his commission. This court said these facts made "out a very plain case for recovery," but the plaintiff had signed a contract that he would not be entitled to any commissions for sales not completed and full deliveries made if he had resigned or been discharged. Quoting from another case the court said:
*837 The general rule in cases presenting questions similar to the one before us seems to be that where the contract provides that the employee will be paid commissions, or share the profits on sales and contracts procured by him, he is entitled to the agreed compensation on those orders which he procured or negotiated, even though his services were terminated before the contract or sale is completed by performance, unless he is precluded by the express terms of the contract. That brings us back to the contract between the parties. In 65 A.L.R. 993 the annotator says:
When we look at the "Latady Draft" we find no provision expressly covering the compensation, if any, on contracts which were procured by respondents before the date of termination but completed afterward. But there are two persuasive indications that they were to share in the profits on such contracts. First, the profits in which respondents would share were sales and contracts made by their department on or after August 1, 1949. These sales and contracts were made and procured after that date and were in various stages of completion when respondents' employment was terminated. It should be noted here that there is no question about Head's right to terminate the contract, and no dereliction of duty or improper conduct by respondents caused the termination. Secondly, the next to last paragraph of the "Latady Draft" recognizes that respondents had been operating the contract department previously, but no sales or completed contracts made by them prior to August 1, 1949 would be included in the contract, but would be the business of Head, except the Mississippi State College contract, although respondents were required to complete such contracts. Thus, work done prior to August 1, 1949 but to be completed afterward, was specifically excluded. It would seem that a provision specifically excluding any profits in contracts completed after termination would have been called for had such been the intention of the parties. They could have inserted a provision similar to that in Oates v. Lee, supra, but they did not. Appellants argue that the contract does not provide for computation of future profits because the contract says that "on December 31, 1949 and at the close of each annual accounting period of James A. Head & Company, Inc., thereafter, the net profit of the Contract Department shall be determined * * *." Appellant says that the termination as of December 31, 1951 terminated all of respondents' claims to any profits on any contracts not completed as of that date. It seems to us that the reference to the annual accounting period is a reference to the time in each year when profits will be computed, and that it does not signify a termination date. Appellant further contends that: "There being no express provision for an allowance of compensation on the basis of future profits, the contract cannot be logically interpreted to afford such a basis; such profits necessarily accruing only upon and after extended services which are never performed by Bryson or Rolling (because of the termination of the contract) and which services must necessarily be performed by others in order to produce the profits." A reply to that contention is that it is undisputed that respondents offered to service the uncompleted sales and contracts but their offer was refused. Moreover, unless there are profits, there is nothing in which respondents can hope to share. We think the contract itself was sufficient to support the finding of the trial court.
But if it be conceded that the "Latady Draft" is ambiguous on the matter, there are other circumstances which tend to show *838 that the parties did not consider December 31, 1951 as the termination date of all compensation due respondents from Head. In its motion to transfer the cause from law to equity, verified by James A. Head, on March 10, 1953, complainant stated:
These statements seem to show that James A. Head knew and believed certain sums were due respondents on uncompleted contracts and that a proper accounting could only be had in equity.
Another circumstance showing the mind of the parties is that on April 12, 1952, Rolling wrote the company requesting among other things, remittance of the amount due him for sales and contracts completed in January, February and March, 1952. Appellant replied by writing separate letters to both respondents on May 12, 1952 in which, while denying the existence of a contract, and especially the "Latady Draft," liability was admitted for services rendered, and proposed a basis for payment of compensation on sales and contracts negotiated by them prior to December 31, 1951, but which were completed after that date. We conclude that the trial court was not in error in its decree (d)(1)-(5) supra. Cases supportive of this conclusion are:
Sooner Broadcasting Co. v. Grotkop, Okl., 280 P.2d 457;
Prochniak v. Wisconsin Screw Co., 265 Wis. 541, 61 N.W.2d 882;
Braun v. Consolidated Electric Lamp Co., 245 Wis. 170, 13 N.W.2d 549;
Singer Sewing Machine Co. v. Brewer, 78 Ark. 202, 93 S.W. 755;
Ohio Marble Co. v. Byrd, 6 Cir., 65 F.2d 98;
Galperin v. Michelson, 301 Mich. 491, 3 N.W.2d 854.
Appellant attacks the "formula" which the court, in paragraph 6 of the decree, ordered the register to use in determining the profits on sales. True, the "Latady Draft" does not provide specifically *839 for an event such as is here presented; but appellant asked for an accounting and offered to do equity, and the "formula" proposed by the trial court seems equitable under the circumstances. Moreover, while appellant criticizes the court's "formula", no better one is suggested as a substitute.
Next we come to appellant's contention that respondents breached a fiduciary duty in employing certain employees of Head. While several such people eventually were hired by respondents, the charge of complainant stands or falls on the cases of two employees, Mrs. Pace and one Schuelly.
Mrs. Pace had been Bryson's secretary in the contract department. She testified that respondents called her in Bryson's office about the middle of December 1951 and dictated their resignations effective December 31st. She asked Bryson if she could go with him whereever he went to work, and he told her he would make a place for her. She resigned on December 31st and went with the partnership when it was formed. She emphatically testified that the proposal to go with Bryson came from her, and that they did not discuss salary or anything else other than Bryson would make a place for her. The very statement of the facts is sufficient to show that there was no breach of a fiduciary relationship as between any of the parties connected with the matter, and the Pace incident avails complainant nothing. Appellant states in brief "we do not contend that the mere discussion of their future by respondents after they had resigned and before they left would be disloyal."
Schuelly had originally lived in Long Island, N. Y. While installing laboratory equipment for Kewaunee Manufacturing Co. at Auburn, which had been sold by Head through Rolling, he met Rolling and later Bryson. They offered him a job and he moved to Alabama. He had worked for the Company for more than a year before he met Mr. Head. Schuelly testified that about Christmas Rolling told him he was leaving Head and he did not know what he was going to do; that after Rolling left, he (Schuelly) talked with Rolling about going with him and was told he could do so after he completed his work with Head. Appellant would have no basis for argument except that Bryson testified that as he remembered it, they told Schuelly during the last half of December 1951, that they were leaving and would like for him to come with them and that Schuelly said he would like to work for them. There was no talk of the amount of salary or working conditions. Actually, Schuelly continued working for Head for about a year before he went with the respondents. We do not think that the Schuelly incident merits an overturning of the court's finding that "Prior to said date (Jan. 1, 1952) said respondents did not conceive a plan of enticing away from complainant any of its employees, and did not solicit, entice or induce any employee of complainant to leave its employ and did not improperly, illegally or inequitably cause any employee of complainant to leave its employ."
We come now to the point on which most stress is laid. That is the contention by appellant that respondents breached their fiduciary duty to it by soliciting and acquiring lines of seventeen of the manufacturers and suppliers.
The law on this subject has been stated variously by many courts. A very good statement appears in one of our cases, which is not cited by either party. In Scottish Union & National Insurance Co. v. Dangaix, 103 Ala. 388, 15 So. 956, 958, this court said:
See 3 C.J.S., Agency, § 146. There are many "customer," "milk wagon" and "laundry" cases where the courts have held invariably that a route man could win the customers of his former employer after termination of his employment. As expressed in Boone v. Krieg, 156 Minn. 83, 194 N.W. 92:
Appellant insists that those cases are inapplicable to the instant case where it was suppliers instead of customers who were solicited. Neither party to this cause *841 has cited a supplier case to us. We think the same law should be applicable whether the case be that of a "customer" or a "supplier." See Duke Bar Journal Vol. 4, Winter 1954, for article entitled "Termination of the Fiduciary Duty of Business Associates Not to Compete For The Firm's Customers and Suppliers."
This court has long recognized the relationship of an agent to his principal as a fiduciary one. See Webb v. Webb, 250 Ala. 194, 33 So. 2d 909; Myers v. Ellison, 249 Ala. 367, 31 So. 2d 353; Lauderdale v. Peace Baptist Church, 246 Ala. 178, 19 So. 2d 538; Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 94 So. 606; Enslen v. Allen, 160 Ala. 529, 49 So. 430.
The instant case does not come within the category of "trade secret" or "breach of trust" or "violation of confidence" cases as exemplified by Fairchild Engine & Airplane Corp. v. Cox, Sup., 50 N.Y.S.2d 643; Aronson v. Orlov, 228 Mass. 1, 116 N.E. 951; Julius Hyman & Co. v. Velsicol Corp., 123 Colo. 563, 233 P.2d 977; Trice v. Comstock, 8 Cir., 121 F. 620, 61 L.R.A. 176; State ex rel. Duggan v. Kirkwood, 357 Mo. 325, 208 S.W.2d 257, 2 A.L.R.2d 216; Byrne v. Barrett, 268 N.Y. 191, 197 N.E. 217, 100 A.L.R. 680.
We think the trial court's finding that there was no breach of fiduciary duty is supported, inter alia, by the principles enunciated in these cases:
Di Angeles v. Scauzillo, 287 Mass. 291, 191 N.E. 426, 93 A.L.R. 1318;
Garst v. Scott, 114 Kan. 676, 220 P. 277, 34 A.L.R. 395;
Padover v. Axelson, 268 Mass. 148, 167 N.E. 301;
Progress Laundry Co. v. Hamilton, 208 Ky. 348, 270 S.W. 834;
City Ice & Cold Storage Co. v. Kinnee, 140 Wash. 381, 249 P. 782; See Restatement, Agency, § 393 Comment (e) and annotation, 126 A.L.R. 758.
We do not find any evidence in the record where any one of the seventeen suppliers who changed their dealership from Head to the respondents was solicited by the respondents to do so prior to Jan. 1, 1952. It is undisputed that each supplier had the right to cancel their agreement with Head and each did so before transferring their line to respondents. There was nothing confidential in their relationship with James A. Head & Company. Other suppliers, other dealers and competitors knew the lines Head carried, and the general public had access to the same information because Head advertised that he was the dealer in such lines. Representatives of several suppliers who left Head testified that there was no solicitation of their representation by respondents until after January 1, 1952. We think both the law and the facts sustain the finding of the court that there was no illegal or improper conduct on the part of respondents in soliciting and securing these agencies.
Appellant lays much stress upon two letters which were written by Bryson prior to December 31, 1951. On October 22, 1951, Heywood-Wakefield Company, a school furniture supplier, wrote Bryson that Head had sold to schools in only six of Alabama's sixty-seven counties and they "would appreciate hearing from you giving us your view on this matter and particularly the reasons for the unsold portion of your territory." Before Bryson had replied to this letter, Mr. Head wrote his letter to Bryson on October 30th terminating his employment as of December 31, 1951. On December 15th Bryson sent in his resignation and on December 17th he wrote Heywood-Wakefield as follows:
The other letter was written by Bryson to Holcomb & Hoke Manufacturing Company. This company wrote Head on October 19th suggesting that dealers for their product "Foldoors" be established in six cities in Alabama. On December 17, 1951 Bryson replied, the body of the letter being as follows:
What we said about the Heywood-Wakefield letter is also applicable to this one. It is also noteworthy that on February 7, 1952, Mr. Head wrote Holcomb & Hoke that his company could not spend the necessary time to promote "Foldoor" sales and he would like to discontinue the line, and then Mr. Head suggested Bryson as the new dealer. Thus we see that these two letters which are so severely criticized, concerned two lines, which as stated by appellee, "one of them complainant did not want, and the other the respondents would not have." We are not persuaded that these letters are evidence of bad faith on the part of Bryson and this is in line with the conclusion reached by the trial court.
As stated previously, the court found against the respondents in three particulars. The first finding reads:
The decree based on this finding reads:
The second finding reads:
The decree based on this finding reads:
We concur with these parts of the decree.
The third finding reads:
The decree based on this finding reads:
It is evident that this matter was not contemplated when this suit was filed. In 1951 Rolling had negotiated a contract with the Alabama Educational Foundation to supply those furnishings described in the court's decree in "the buildings which you have under construction, or, which you propose to build at Indian Springs, Alabama." Head supplied these furnishings, and all parties evidently considered the contract closed and completed. Later, in 1952, after the formation of respondents' partnership, they sold the same kind of equipment to the Foundation for another building which had been constructed after January 1, 1952. Mr. Head knew about this latter sale but no question was raised until the trial of the case. At that time, when Mr. Head was testifying, one of his attorneys, Mr. Simpson, alertly recognized that the contract was a continuing one, and that the sale made by respondents was a sale which should have been made by Mr. Head under the original agreement with the Foundation.
Appellant argues that this was a breach of fiduciary duty, and this "bad faith destroys any claim for other compensation," but we cannot agree. It was a bona fide mistake, but we agree with the trial court it "did not constitute a violation of the fiduciary duties owed by said respondents to complainant." Since the continuing contract had been negotiated by respondents prior to December 31, 1951 and the profits made on such contracts were to be divided two-thirds to respondents and one-third to complainant, it was appropriate for the court to order that complainant be paid one-third of the profits made on the sale by respondents.
We could prolong this opinion with a discussion of other specific claims, the bases of kindred assignments of error, but we deem such action unnecessary. It is obvious that this case presents largely questions of fact. The two main questions were the terms of the contract, if any, and whether respondents breached any fiduciary *845 duty. The trial court made a clear finding that the "Latady Draft" was the contract between the parties and that respondents breached no fiduciary duty owed to complainant. Suffice it to say that we find no portion of the decree of the trier of fact that is so plainly or palpably wrong as to constitute reversible error. The decree of the lower court is therefore due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | September 13, 1956 |
13c87527-5519-49fb-9fa8-eb00b1395b85 | Walker v. Coley | 88 So. 2d 868 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 868 (1956)
L. L. WALKER
v.
D. R. COLEY, Jr.
1 Div. 651.
Supreme Court of Alabama.
June 21, 1956.
*870 Caffey, Gallalee & Caffey, Mobile, for appellant.
D. R. Coley, Jr., Mobile, for appellee.
PER CURIAM.
This is an action of ejectment by appellant against appellee for the recovery of two tracts of land, one of which is approximately 60 acres and is referred to in the complaint as Parcel A, and the other tract of approximately 20 acres is referred to as Parcel B. The trial was had with a jury and a verdict returned for defendant (appellee) with judgment rendered accordingly.
The two tracts are in the South half of Section 38, Township 4 S, Range 2 W by virtue of an irregular survey of that area. This South half of Section 38 is bounded on the west by Sections 27 and 34, so that if the line between Sections 27 and 34 extended east it would lie about the middle of the South half of Section 38.
The title extends back to possession by Margaret Logan, a Negro woman, who lived on the 60-acre tract. That tract is 2,000 feet east and west by 1,371 feet north and south. The south line of it is what would be the extended section line between Sections 27 and 34. The smaller tract is south of and adjoins the larger, being 10 chains (660 feet) east and west by 18 chains (1,188 feet) north and south. Margaret Logan lived on the 60-acre tract for many years prior to March 14, 1914. James Richardson lived in Section 27 adjoining the 60-acre tract on the west.
On March 14, 1914 Margaret Logan executed a deed conveying Parcel A, the 60-acre tract, to James Richardson. Mr. Richardson never had a deed covering the 20-acre tract, Parcel B. But the evidence tends to show that in 1916 he took possession of both tracts. The land was unimproved. There were some trees and bushes on it, and in the main it was unsuitable for cultivation. Richardson fenced both tracts in a pasture in 1916, and cut wood for charcoal and stovewood, and so used it for over 20 years. No one else had possession during that time, except as here shown.
Foster and Lowder of Mobile were realtors and had a power of attorney from one Boruff who lived elsewhere. They seem to have had control of the land east of said 60-acre tract and in the same section. They had an agreement with Richardson, expressed by him as follows:
"(Mr. Coley):
As a part of that agreement Richardson executed a deed to Boruff dated December 4, 1919 conveying both Parcels A and B, which deed recited a consideration of $1. That is the first muniment of title covering Parcel B. Richardson further testified that there was no money consideration. The deed also contained the tract east of the 60 acres, referred to above and not here involved, which Richardson did not claim. On July 15, 1932 Boruff (by attorney in fact) conveyed both Parcels A and B, together with other land, to Bertha H. Stephens: the deed expressing a consideration of $100. On October 8, 1937 Bertha H. Stephens conveyed to Kate Lowder both Parcels A and B and the other land lying east of it for a consideration of $1 and other valuable consideration.
On January 3, 1950 Kate Lowder conveyed to A. B. Case the entire South half of Section 38, which includes Parcels A and B and the other tract referred to above for a consideration of $25.
On February 28, 1952 A. B. Case conveyed to L. L. Walker (this plaintiff) Parcels A and B for a named consideration of $1 and to replace a lost deed. There is evidence that none of these parties ever had possession of Parcel A or B, and that no claim of any kind was ever asserted by Boruff, Stephens or Lowder.
Plaintiff's claim is dependent upon James Richardson who never had color of title to Parcel B. But defendant also claims under James Richardson. There is evidence that in 1916 James Richardson took possession of Parcel B along with Parcel A, although he had a deed which only covered Parcel A. Although Parcel B was *872 included in his deed to Boruff in 1919 Richardson continued in possession without interruption or dispute until he sold it to his nephew Samuel Richardson. Samuel Richardson had taken possession several years prior to July 23, 1934 (about 1929) when he received a deed from James Richardson. Samuel Richardson built a house and lived on the land and finished paying for it when he received his deed. He sold to defendant in 1946, and defendant has been in uninterrupted possession of it since then.
As to Parcel A, James Richardson had possession of it without interruption or dispute until March 7, 1944, when he sold and conveyed it to his nephew Samuel Richardson and put him in possession. Samuel Richardson continued in the uninterrupted possession until he sold it, along with Parcel B, to defendant and made a deed to him on September 6, 1946; and defendant has had the uninterrupted possession since then.
It will be observed as to Parcel A that Samuel Richardson bought and went into possession of it less than ten years before this suit was begun on September 23, 1953. But there is evidence that James Richardson had a deed from Margaret Logan in 1914, and that she was in possession of the tract then, and that he had possession since that time or until 1944 when he sold it to his nephew Samuel Richardson. As to Parcel B the evidence tends to show that Samuel Richardson and defendant had adverse possession tacked together, both under recorded color of title, more than ten years before the suit was begun. That is sufficient to support a verdict for defendant as to Parcel B under section 828 (adverse possession), Title 7, Code.
In respect to Parcel A, it is necessary to consider some appropriate principles of law with reference to possession by a grantor after the execution of a deed. The general rule relied upon by appellant is thus stated by our cases:
There is another principle which is here material and is stated as follows in Findlay v. Hardwick, 230 Ala. 197, 160 So. 336, 340: "Under the doctrine of prescription, the law conclusively presumes that * * * was the owner in fee, and this presumption precludes all judicial inquiry into her title." Citing Kidd v. Borum, 181 Ala. 144, 161, 61 So. 100; Moore v. Elliott, 217 Ala. 339, 116 So. 346; Tharp v. Johnson, 219 Ala. 537, 122 So. 668. To the same effect is the case of Jackson v. Stephens, 251 Ala. 559, 39 So. 2d 226. There are many other such cases. In Kidd v. Borum, supra, 181 Ala. at page 161, 61 So. at page 106, it is said: "This court has repeatedly held that the lapse of 20 years, without recognition of adversary right, or admission of liability, operates an absolute rule of repose."
In Case v. Conservation & Land Co., 256 Ala. 46, 49, 53 So. 2d 562, 564, it is said:
"This rule has been followed in many of our cases. Some of them are: Philippi v. Philippi, 61 Ala. 41; Garrett v. Garrett, 69 Ala. 429; Solomon v. Solomon, 83 Ala. 394, 3 So. 679; Semple v. Glenn, 91 Ala. 245, 6 So. 46, 9 So. 265; Gay v. Fleming, 182 Ala. 511, 62 So. 523; Spencer v. Hurd, 201 Ala. 269, 77 So. 683, 1 A.L.R. 761; Graham v. Graham, 205 Ala. 644, 89 So. 25; Scott v. Scott, 202 Ala. 244, 80 So. 82; Oxford v. Estes, 229 Ala. 606, 158 So. 534; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820; Hendley v. First National Bank of Huntsville, 234 Ala. 535, 176 So. 348, on rehearing, 235 Ala. 664, 180 So. 667.
There is evidence from which the jury could find that neither Boruff, the grantee of Richardson, nor his successor Bertha Stephens or Kate Lowder, have asserted claim or right to either tract of land, nor paid substantial value for it, nor paid taxes on it, nor sought possession of it or benefits from it, nor have done any act showing an assertion of claim so far as known to James Richardson the grantor, or the public, for a period of 20 years or more; and that James Richardson and his successors have had the open, notorious, exclusive possession for a period of 20 years or more after he made a deed to Boruff in 1919, and without recognition of the title of his grantee or successors. If the jury found those to be the facts, Richardson's possession is not presumed to be subordinate to and in recognition of the rights of Boruff and his successors for he would not be bound for 20 years by a presumption of subserviency. See, Miller v. Vizzard Inv. Co., 195 Ala. 467, 70 So. 639; Snodgrass v. Snodgrass, supra; Kidd v. Borum, supra; Scott v. Scott, 202 Ala. 244, 80 So. 82; Jones v. Rutledge, 202 Ala. 213, 80 So. 35; Staten v. Shumate, 243 Ala. 261, 9 So. 2d 751.
We observe in that connection that section 828 (Adverse Possession) Title 7, Code, does not apply to the prescriptive period of 20 years. Alford v. Rodgers, 242 Ala. 370, 6 So. 2d 409; Jones v. Rutledge, supra. We think the Court overlooked those principles in applying the presumption of subserviency to the prescriptive period in Chandler v. Pope, 205 Ala. 49, 87 So. 539. The cases there cited apply the principle of subserviency where the possession has extended for many years (more or less than 20), and on the same theory as under the statute or 10 years; but there is nothing to indicate that in the states mentioned the courts go the length we do in applying the 20-year period of prescription. All of the states do not observe *874 it. See 2 C.J.S., Adverse Possession § 232(2) p. 880. But as pointed out above, for a long time we have applied very strictly and firmly that principle as shown by our cases cited supra. The 20-year period would have little purpose if the same requirements of adverse possession applied to it as to the 10-year preiod. We think the Chandler case, supra, failed to observe the full force of our cases in that respect and should not be considered as expressive of the correct principle.
There is another reason why the presumption of subserviency is not here controlling. That presumption obtains "only between the grantor * * * and the grantee * * * and not the latter's grantee * * *. It is observed of the rule that a grantor remaining in possession is presumptively but a tenant at the sufferance of the grantee named in the conveyance, and not by the sufferance of some other grantee." Gerald v. Hayes, 205 Ala. 105(5), 87 So. 351, 352; Findlay v. Hardwick, 230 Ala. 197(6), 160 So. 336.
We have shown that Boruff was the grantee of James Richardson in 1919 of Parcels A and B; but that Richardson is shown to have retained the possession. Boruff conveyed both parcels to Bertha Stephens on July 15, 1932: she conveyed to Kate Lowder on October 8, 1937, who later conveyed to Case and he to plaintiff Walker. After July 15, 1932 there was no presumption that Richardson had possession at the sufferance of Bertha Stephens or her successors. They were not his grantees. So that if we were inclined to apply that presumption to the 20-year period, it would not be here controlling because the jury could have found that Richardson and those claiming under him, including this defendant, have had possession of both tracts, respectively, for more than 20 years after July 15, 1932 and before this suit was begun on September 23, 1953. After Richardson's grantee sold to Stephens on July 15, 1932 the presumption had no standing. The jury were authorized to find that defendant had title to both tracts.
There was no error in refusing the affirmative charge requested by appellant and in overruling his motion for a new trial based on the insufficiency of the evidence.
Assignments of error 2 and 16 are based on refused charge 4. Assignment No. 3 is based on refused charge 24. The trial court fully covered these charges in his general charge.
Assignment No. 4 is based on the giving of charge 3 at the request of defendant. The charge could have been refused, but it was not error to give it. That comment also applies to given charge A, assignment of error No. 5.
Assignment of error No. 17 is based on the refusal of charge 33. The court properly refused it. As a matter of law the burden of proof does not shift; but sometimes there is a duty to introduce proof of a certain sort. Evidently the charge sought to invoke that procedural rule, but it is not appropriately phrased in the charge. It also limits the better title of defendant to one which has resulted from a prior possession. It is confusing as to whether it eliminates a title acquired by adverse possession subsequent to the possession under which plaintiff claims. Defendant is not thus limited by law.
We think the foregoing discussion is sufficient to support the conclusion that none of the assignments discussed by appellant show reversible error. Therefore, the judgment should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of *875 Title 13, § 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, SIMPSON, STAKELY, GOODWYN, MERRILL and SPANN, JJ., concur. | June 21, 1956 |
01336435-6b9a-4179-ab6f-08131cb8bab5 | Merchants National Bank of Mobile v. Cowley | 89 So. 2d 616 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 616 (1956)
The MERCHANTS NATIONAL BANK OF MOBILE, As Trustee,
v.
Loyd COWLEY and Lucille Sutton, As Executors, et al.
1 Div. 588.
Supreme Court of Alabama.
May 10, 1956.
Rehearing Denied October 4, 1956.
*617 Vickers & Thornton, Mobile, for appellant.
Sidney J. Gray, Mobile, for appellees.
GOODWYN, Justice.
This is an appeal by the Merchants National Bank of Mobile, as trustee, from a final decree rendered by the Circuit Court of Mobile County, in equity, in a declaratory judgment proceeding brought by said Bank, as trustee, against Loyd Cowley and Lucille Sutton, as executors of the will of Norma S. Cowley, deceased, Loyd Cowley, Janeillen Cowley and Rosemary Cowley (the younger).
The questions presented are:
I. Whether the property and assets devised and bequeathed to Norma S. Cowley by the will of her father, Lee E. Sutton, deceased, passed, on her death, to the beneficiaries named in a trust agreement originally entered into by Norma S. Cowley and said Bank, as trustee, on June 15, 1949, and amended on December 10th and 13th, 1949, and "restated" on March 13, 1952, and amended on November 24, 1952, or to the residuary devisees and legatees named in her will dated December 13, 1949, as modified by a codicil on May 3, 1952. The trial court held the residuary devisees and legatees under the will to be entitled to the property, which action appellant assigns as error.
II. Whether said Bank, as trustee, should be required to pay any part of the fee of the guardian ad litem appointed by the court to represent Janeillen Cowley and *618 Rosemary Cowley (the younger), minor beneficiaries under the will of Norma S. Cowley, deceased. The trial court decreed that "the costs and expenses of this proceeding, including a reasonable fee for the guardian ad litem for the minors Janeillen Cowley and Rosemary Cowley, the younger, be * * * taxed one-half against the Merchants National Bank of Mobile, as trustee, and one-half against the estate of Norma S. Cowley, deceased." Appellant assigns as error the taxing against it of one-half of the guardian ad litem's fee.
On June 15, 1949, Norma S. Cowley executed a trust agreement with the Merchants National Bank of Mobile naming the Bank as trustee and creating a living trust providing for payments to the grantor so long as she may live or "until the trust shall have been revoked or the corpus shall have been consumed; as hereinafter provided for", and naming beneficiaries of the trust on her death. The trust agreement makes provision for the placing of additional property in the corpus of the trust fund, under and subject to the terms of the trust agreement. The trust agreement also contains the following provisions:
Attached to the trust agreement, and made a part thereof, is a schedule and receipt, denominated Schedule "A" and identified by the signatures of the parties, which lists the items of property delivered to and to be held and administered by the Bank under the trust agreement. This list consists only of personal property.
On September 28, 1949, Lee E. Sutton, the father of Norma S. Cowley, died leaving a last will and testament which was duly probated in the Probate Court of Mobile County, by the terms of which he devised and bequeathed certain real and personal property to Norma S. Cowley.
On December 10, 1949, Norma S. Cowley executed the following instrument:
On December 13, 1949, Norma S. Cowley and the Bank executed an amendment to the trust indenture making changes in tractional shares of the trust estate to go to certain of the beneficiaries. (Article V of the trust indenture provides for disposition of the remaining net corpus of the trust estate upon the grantor's death. Clause (a) of Article V provides for distribution of fractional shares to certain named beneficiaries. The amendment is of Clause (a).)
Also on December 13, 1949, Norma S. Cowley executed her last will and testament, containing the following residuary clause:
On March 13, 1952, Norma S. Cowley and the Bank entered into an agreement reciting the following:
On May 3, 1952, Norma S. Cowley executed a codicil to her will of December 13, 1949, by which she revoked and cancelled Item III thereof and substituted in its place the following:
On November 24, 1952, an amendment of the restated trust agreement was executed by the grantor and the Bank. This amendment recites the following:
Norma S. Cowley died on January 5, 1953, and her last will and testament and codicil thereto were duly admitted to probate in the Probate Court of Mobile County.
The question presented, in the final analysis, is whether Norma S. Cowley's interest in her father's estate is a part of the property subject to distribution under the terms of her restated trust indenture, as amended, or is a part of her general estate and, as such, distributable to the beneficiaries named in her last will and testament, as changed by her codicil.
The position taken by the Bank is that the original trust agreement, as amended, was not revoked by the restated agreement and that hence Mrs. Cowley's interest in her father's estate was not withdrawn from the trust; this for the reason that the method for revocation or withdrawal, as prescribed in the original trust indenture, was not followed. It is further insisted that the restated trust agreement shows on its face that the grantor did not revoke the original trust agreement, as amended; that the original trust agreement and the restated trust agreement are not clear and unambiguous on their faces and that, therefore, parol testimony was admissible to determine the grantor's intention. Over appellee's objection testimony was offered of two attorneys who attended to Mrs. Cowley's affairs and who drew the several instruments here involved. Their testimony was to the effect that Mrs. Cowley had no intention of withdrawing her interest in her father's estate from the operation of the trust agreement.
The position taken by appellees is that the original trust agreement was revoked by the restated agreement and that the restated agreement, as amended, constituted the entire trust agreement; that when the restated agreement was executed the legal and equitable title to the property held by the Bank, as trustee, under the original *622 trust agreement, as amended, and left out of the restated agreement, merged in Mrs. Cowley and that the trust was thereby terminated as to that property. It is further insisted that the restated trust agreement is clear and unambiguous and that parol testimony as to the grantor's intention should not be considered.
The trial court held that the trust agreement executed on March 13, 1952, as amended, constituted the full and complete agreement between the parties and that the "prior trust agreement" entered into on June 15, 1949, as added to and amended, was effectively revoked by the 1952 agreement. It was further held that the 1952 agreement is not of ambiguous or doubtful import; that none of the property or assets which Norma S. Cowley received or would be entitled to receive under the will of her father was subject to the 1952 trust agreement; and that such property and assets passed under the residuary clause of Mrs. Cowley's will and codicil thereto. We find no error in so holding.
There seems to be no question that the settlor of a trust, "if he desires to do so, and expresses his intention in the trust instrument or in other appropriate way, * * * may retain in himself a power to change the terms of the trust in general or in one or more particular ways specified, as with regard to the names and shares of the cestuis, the personnel of the trusteeship, or the property to be subject to the trust. * * * So likewise the settlor may by express provision vest in himself a power to revoke or cancel the trust at will, or on the happening of a certain contingency." Bogert, Trusts and Trustees, Vol. 4, Part 2, § 994, pp. 441, 442.
It is further established as a general proposition that where the settlor reserves a power to revoke the trust in a particular manner, he can revoke it only in that manner. Thus if he reserves power to revoke by a notice in writing to the trustee, he cannot revoke without such notice. Scott on Trusts, Vol. 3, § 330.8, p. 1805; Bogert, Trusts and Trustees, Vol. 4, Part 2, § 996, p. 459; 89 C.J.S., Trusts, § 89, p. 913. But it has been held, and with good reason, that a provision for notice in writing to the trustee is for the benefit of the trustee and may be waived by the trustee. Wade v. McKeown, 193 Okl. 415, 145 P.2d 951, 954; Miller v. Exchange National Bank, 183 Okl. 114, 80 P.2d 209; St. Louis Union Trust Co. v. Dudley, Mo.App., 162 S.W.2d 290, 293, 295; Security Trust Co. v. Spruance, 20 Del.Ch. 195, 174 A. 285, 288; Annotation 131 A.L.R. 468, 469; Scott on Trusts, Vol. 3, § 330.8, n. 1, Cumulative Pocket Supplement; 89 C.J.S., Trusts, § 91, p. 919. And our view is that the requirement of notice in the 1949 trust agreement was for the benefit of the trustee Bank which it waived by entering into the 1952 agreement. It is further our view that the execution of the 1952 agreement constituted an effective revocation of the 1949 agreement, as amended.
In the final analysis, the only purpose to be served by the notice in writing would have been to evidence the settlor's intention to revoke, a power expressly reserved to her in the trust instrument. And this power rested with her alone, the only contingency being the provision for thirty days' written notice to the trustee. Obviously, it seems to us, this notice was for the benefit of the trustee to give it the right, if it should elect so to do, to postpone revocation of the trust for a maximum period of thirty days. Being for its benefit there seems no reason why it could not waive the requirement. In Miller v. Exchange National Bank, supra, it was held that a requirement of thirty days' written notice to the trustee and the payment of a $25 fee were solely for the benefit of the trustee and could be waived. As there stated [183 Okl. 114, 80 P.2d 211]:
It seems to us that the language of the 1952 agreement clearly shows that it was considered by the parties as superseding the prior existing agreement. We see no way of avoiding the effect of the following recitals in the 1952 agreement:
How can we say that this 1952 agreement is but an amendment of the 1949 agreement, as amended? The 1952 agreement is in itself a complete entity. Although it gives powers previously given and imposes duties previously imposed, it embodies all the terms and conditions of a new trust.
To effectuate a revocation it was not essential to recite in the later instrument that the prior instrument of trust was thereby "revoked". From Restatement, Trusts, § 330, Comment i, p. 993, is the following:
From the same authority, § 345, Comment a, p. 1070, is the following:
See, also, Bogert, Trusts and Trustees, Vol. 4, Part 2, § 996, pp. 463, 466; Capron v. Luchars, 110 N.J.Eq. 338, 160 A. 83, affirmed 112 N.J.Eq. 373, 164 A. 447; 54 Am. Jur., Trusts, § 73, p. 76; 89 C.J.S., Trusts, § 88, p. 908.
From 54 Am.Jur., Trusts, § 73, p. 76, supra, is the following:
The following is from 89 C.J.S., Trusts, § 88, p. 908, supra:
A further insistence by appellant is that the 1952 agreement is not clear and unambiguous, thus making parol evidence admissible to show that Mrs. Cowley did not intend to withdraw the interest in her father's estate from the operation of the 1952 agreement. The ambiguity insisted upon is that the "documents" are not clear in that they make contradictory statements. In its brief appellant says:
In other words, appellant urges on us this: The first deed of trust deals with the Sutton assets. The second does not deal with these assets. Therefore, the second deed is ambiguous. We are unable to follow this argument. As stated in Birmingham Trust & Savings Co. v. Cannon, 204 Ala. 336, 342, 85 So. 768, 773:
See, also, Ingalls v. Ingalls, 256 Ala. 321, 330, 54 So. 2d 296; Hawkins v. Tanner, 243 Ala. 641, 646, 11 So. 2d 351; Hoglan v. Moore, 219 Ala. 497, 501, 122 So. 824; McGhee v. Alexander, 104 Ala. 116, 121, 16 So. 148. In 32 C.J.S., Evidence, § 960, pp. 903-904, the rule is stated as follows:
Patently, it seems to us, the 1952 agreement is clear and unambiguous. Being so, oral testimony varying its terms cannot be considered.
II.
We come now to appellant's contention that it should not have been taxed with one-half of the fee allowed the guardian ad litem which was included in the costs, *625 one-half of the costs being taxed against the appellant and one-half against Mrs. Cowley's estate. Under the provisions of Code 1940, Tit. 7, § 180, guardian ad litem fees are to be taxed as a part of the costs. Since this is a declaratory judgment proceeding, the apportionment of costs is subject to the provisions of Code 1940, Tit. 7, § 165, as follows:
Also applicable is Equity Rule 112, Code 1940, Tit. 7, Appendix, which, in pertinent part, is as follows:
In referring to Equity Rule 112, supra, it was stated in Dozier v. Payne, 244 Ala. 476, 477, 14 So. 2d 376, 377, as follows:
In Thompson v. Bryant, 251 Ala. 566, 569, 38 So. 2d 590, 593, it is stated as follows:
We cannot say that there was an improper exercise of discretion by the trial court in taxing the costs equally against each trust estate. Furthermore, the usual rule is to tax the costs in favor of the prevailing party, Dozier v. Payne, supra; Martin v. Carroll, 259 Ala. 670, 675, 68 So. 2d 721, which, if applied to this case, would have called for taxing all of the costs against appellant. We see no basis for complaint by appellant in being taxed with only one-half of the costs.
It follows from what we have said that the decree of the trial court is due to be affirmed. So ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur. | May 10, 1956 |
04cbdca2-cf9d-446a-9581-450d3c11899b | Alabama Great Southern Railroad Co. v. Bishop | 89 So. 2d 738 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 738 (1956)
ALABAMA GREAT SOUTHERN RAILROAD COMPANY
v.
Burnett Morgan BISHOP.
7 Div. 291.
Supreme Court of Alabama.
June 14, 1956.
Rehearing Denied October 4, 1956.
*740 Lusk, Swann & Burns, Gadsden, for appellant.
Copeland & Copeland and Hawkins & Rhea, Gadsden, and Hare, Winn & Newell, Birmingham, for appellee.
SIMPSON, Justice.
The plaintiff recovered a judgment for personal injuries from which the defendant has appealed. Upon the former appeal of the case it was held that the defendant was entitled to the affirmative charge. Alabama Great So. R. Co. v. Bishop, 259 Ala. 629, 68 So. 2d 530.
On the trial below which followed, one count was submitted to the jury charging the defendant with negligently constructing or maintaining a public railroad crossing in allowing a crevice to exist between the tracks and a cross-tie or timber parallel therewith and adjacent thereto. As a proximate consequence thereof the complainant alleged that, while crossing the tracks, plaintiff's foot was caught in the crevice and he was caused to fall, and while his foot was so caught the train ran over it.
On the former appeal, the court upon the evidence there presented, observed, "It is apparent that the only way and manner in which a person's foot could be accidentally caught in that crevice was what occurred as appellee contends, that is, to fall across the rail so as to push the toe of his shoes straight down. It could not occur to one simply walking or running uprightly across the track unless he should fall * * *.
"We cannot see that it was a fair inference from the facts that the crevice produced a condition dangerous to one walking or running across the track in the observance of ordinary care." Alabama Great So. R. Co. v. Bishop, supra, 259 Ala. 632, 68 So. 2d 533.
In the trial below, an expert witness (whose testimony was not offered on the former trial) testified on behalf of plaintiff. The defendant urges error on the part of the trial court in admitting the opinion evidence of such expert witness. The expert, one Kershaw, testified over defendant's objection that the construction of the crossing in question was not reasonably proper and safe from the standpoint of the safety of a pedestrian at a grade crossing much used by pedestrians; that the absence of any filling in the void creates a hazard in pedestrian, vehicular or animal traffic; that leaving the void unfilled left the crossing not reasonably safe for pedestrians; and that the crossing was not reasonably safe.
The crevice at the crossing in which the plaintiff's foot was caught, the maintenance of which is the only negligence on which the verdict rested, was approximately two inches in width and six inches in depth.
The rule governing admissibility of expert opinion evidence is that such evidence should not be admitted unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. It is not admissible on matters of common knowledge. New York Life Ins. Co. v. Jones, 31 Ala.App. 417, 17 So. 2d 879, reversed on other grounds 245 Ala. 247, 17 So. 2d 883; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881; Central of Georgia R. Co. v. Bagley, 173 Ala. 611, 55 So. 894; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723; McElroy on Evidence, §§ 127, 128, pp. 49-51; 20 Am.Jur., Evidence, §§ 765, 780, 781, 798, 819; 32 C.J.S., Evidence, § 520.
The strict question with regard to this testimony is whether or not an average *741 juror would be capable of forming a correct conclusion in respect to the safeness or unsafeness for persons to walk over a crevice two inches wide and six inches deep in a populous railroad crossing. If this question is answered in the affirmative, the trial court was in error in allowing, over the defendant's objection, the expert to express the aforementioned opinions.
In Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So. 2d 89, expert witnesses were permitted to express the opinion that the track at the point where the derailment occurred was in a safe condition for the use to which it was put.
An expert was allowed to express an opinion as to whether or not a ventilation system in a mine was adequate to remove the dust in Tennessee Coal, Iron & R. Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459. In Atlantic Coast Line R. Co. v. Hardwick, 239 Ala. 58, 193 So. 730, the defendant sought to show by an expert the condition of the ventilator lift in question by propounding the following inquiry: "Was it a support suitable and satisfactory for the purpose for which it was used?" This court held that the expert should have been allowed to express an opinion thereon.
However, the above cases, cited by plaintiff in support of the trial court's ruling, are distinguishable from the case at bar in that the subject matter in respect to which the expert was allowed to give opinion evidence was not one of common knowledge and experience of men. We conclude that the subject here under examination, e. g., a crevice in a crossing (any more than a hole in the sidewalk or street) does not require expert opinion that it would be safe or unsafe for pedestrians for the reason that, given the physical facts, the ordinary mind is capable of forming a judgment thereon. See Alabama Great So. R. Co. v. Baum, 249 Ala. 442, 31 So. 2d 366; Capital Motor Lines v. Gillette, supra; New York Life Ins. Co. v. Jones, supra; Downing v. Drybrough, Ky., 249 S.W.2d 711; Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873; Ming v. City of Jackson, 202 Miss. 260, 31 So. 2d 900; District of Columbia v. Haller, 4 App.D.C. 405; Central of Georgia Ry. Co. v. Bagley, supra; City of Birmingham v. Crane, supra.
For the error in admitting the testimony of Mr. Kershaw as above referred to the judgment must be reversed.
Appellant insists that the affirmative charge should have been given on its behalf. For the purpose of another trial we will write to this point.
Viewing the tendencies of the evidence most favorable to the plaintiff, the material facts and reasonable inferences to be drawn therefrom appear to be as follows: Plaintiff walked up to the public railroad crossing and at a distance of ten to fifteen feet from such crossing he stopped and looked in the northerly and southerly directions, he testified he did not see the train in question. To the plaintiff's left, however, he did see a switch engine at a distance of approximately one hundred feet and coming toward the crossing puffing and blowing and making a "pretty good noise"; the plaintiff saw a trainman who was walking in front of the switch engine give a signal for the switch engine to back up; the plaintiff also testified that the trainman motioned for him to cross; the switch engine began backing away from the crossing. Plaintiff then proceeded toward the crossing; he did not again look to his right until he stepped across the first rail (the western rail); plaintiff testified that the train in question was at this time (i. e., after he stepped across the first rail) about thirty-six yards away; the train was then traveling at a rate of approximately thirty-eight to forty miles per hour; plaintiff then jumped toward the second rail (the eastern rail); his left foot slipped, his toe caught in the crevice, and he fell forward. Before he could extricate himself, the train had passed over his left leg.
*742 The crevice in which the plaintiff's foot was caught was between the east rail and a piece of timber extending parallel thereto and adjoining the pavement between the rails on its west. As heretofore stated, it was about two inches wide and six inches deep. The opening or crevice was made necessary so that the flange on the wheels could pass over in the operation of the train. There was expert evidence offered by plaintiff that the maximum depth which would be occupied by the flange of the wheel would be 1¼ inches.
The governing principle, as set out in the former opinion, is that the "defendant must not create a condition, either purposely or negligently, which is or will be dangerous to some person acting upon that condition in such way and manner as should be anticipated or foreseeable in the ordinary course of conduct by reasonably prudent people." Alabama Great So. R. Co. v. Bishop, supra, 259 Ala. at page 632, 68 So.2d at page 532.
Where a railroad constructs its road across a highway or public road, the duty devolves on it to construct and maintain the approaches and crossing in a condition reasonably safe for the use of the traveling public. Southern Ry. Co. v. Posey, 124 Ala. 486, 26 So. 914; Patterson v. South & North Ala. R. Co., 89 Ala. 318, 7 So. 437. The allowing of space to remain between the planking and the rail of a crossing sufficiently large to admit and hold a person's foot resulting either in injury from the crossing itself or by a collision from trains due to the inability to leave the crossing in time to avoid injury, has been held to present a jury question as to negligence on the part of the railroad. Samkiwicz v. Atlantic City R. Co., 82 N.J.L. 478, 81 A. 833, 39 L.R.A.,N.S., 571; Chesapeake & O. Ry. Co. v. Pope, 296 Ky. 254, 176 S.W.2d 876; Gibson v. Chicago Great Western R. Co., 117 Minn. 143, 134 N.W. 516, 38 L.R.A.,N.S., 184; Spooner v. Delaware, L. & W. R. Co., 115 N.Y. 22, 21 N.E. 696, Ann.Cas.1913C, p. 1266; 44 Am.Jur., Railroads, §§ 496, 535, pp. 735, 736, 783.
In the light of these cases we hold the defendant was not entitled to the affirmative charge on the issue of initial negligence.
The next question for our determination is whether the plaintiff is barred of recovery because of his contributory negligence, thereby entitling the defendant to affirmative instructions with hypothesis on that issue. Unless the evidence regarding contributory negligence is entirely free of doubt or adverse inference, the question must be submitted to the jury. Capitol Motor Lines v. Billingslea, 246 Ala. 501, 21 So. 2d 240, 157 A.L.R. 1207; Sloss-Sheffield Steel & Iron Co. v. Littrell, 246 Ala. 58, 18 So. 2d 709.
The plaintiff argues that he was not, as a matter of law, guilty of contributory negligence for several reasons: The train gave no signal of its approach, any noise of its approach was obscured by the noise of a switch engine, some obstruction of view, and the fact that a trainman on a switch engine signalled the plaintiff to cross.
On a careful consideration of the entire evidence, we have concluded, although the question is a close one, that the issue of contributory negligence was properly left to the jury. The following facts have some support from the evidence: Plaintiff is probably chargeable with notice of the approach of the train that hit him and with the duty to stop, look and listen before attempting to cross the tracks. Louisville & N. R. Co. v. Bailey, 245 Ala. 178, 16 So. 2d 167; Southern R. Co. v. Summers, 232 Ala. 417, 168 So. 179. But at the time a switch engine was approaching from his left about one hundred feet from the crossing making much noise. Plaintiff was thus in a position where two trains were in view with a trainman by the switch *743 engine signalling it to go back and motioning the plaintiff to cross. The switch engine began to back off from the crossing whereupon plaintiff, in response to the trainman's signal, proceeded toward the crossing and stepped across the first rail when the train on his right was approaching about thirty-six yards away. When the plaintiff saw the trainman give the back-up signal to the switch engine and the forward signal to him and responded thereto, he was by that time practically over the first rail. He then undertook to jump across the tracks in front of the approaching train when his foot became engaged in the crevice and he fell. Whether it was negligent for him to be over the first rail was affected by the movement and noise of the switch engine and the signal of the trainman. It may not have been a part of the duty of the trainman to signal him to cross and the railroad may not be responsible for his doing so, but it was an incident occurring at that time that may have had some influence inducing him to go forward. We are dealing here with seconds. He started across, looked up and saw the train bearing down upon him. The confusion of the switch engine backing and the signal of the trainman probably stimulated him forward. When he saw the train thirty-six yards away, he had time to cross, barring accidents, and undoubtedly could have done so but for the accident of his foot slipping and being caught in the crevice which he did not foresee. We think the jury could have found that he was thus influenced and situated and that it was for them to say if that was the situation and his reactions, and whether a reasonably prudent man so situated would have taken the chances of crossing or would have stepped back off the first rail and not attempted to cross when he saw the train bearing down upon him. His decision, of course, had to be instantaneous.
The following from 44 Am.Jur., p. 783, § 535, is pertinent here and to our minds persuasive of the foregoing conclusion:
In view of the rule in Alabama that in civil cases the question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish "a mere `gleam,' `glimmer,' `spark,' `the least particle,' the `smallest trace''a scintilla'" in support of the theory (Ex parte Grimmett, 228 Ala. 1, 152 So. 263), we are constrained to hold that the question of contributory negligence was for the jury and that there was no error in refusing the affirmative instructions requested by the defendant.
Our attention being directed to authorities not cited upon the last appeal has led us to the conclusion that the question of initial negligence as well as contributory negligence was for the jury.
For the error noted hereinabove, however, the cause is reversed.
Reversed and remanded.
*744 LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur.
SIMPSON, Justice.
The appellee urges that it is not reversible error to admit expert opinion evidence on a matter of common knowledge, citing Norwood Clinic, Inc., v. Spann, 240 Ala. 427, 199 So. 840.
Further research confirms the opinion on original deliverance that it is reversible error to admit expert opinion evidence on a matter of common knowledge, because such evidence invades the province of the jury. We will review briefly some of our cases holding to this view.
The trial court was reversed for admitting a doctor's opinion that the loss of one arm works total disability to do manual labor for the reason that an expert witness cannot "invade the province of court or jury in dealing with matters of common knowledge." Equitable Life Assur. Soc. of United States v. Davis, 231 Ala. 261, 164 So. 86, 89.
The Gillette case, cited in the original opinion, reversed the lower court on the single ground of the admission of expert opinion evidence on a matter of common knowledge. Testimony by a school principal to the effect that the plaintiff was not "really able to teach school" was admitted. The case states: "We are of opinion that in this ruling there was error. It admitted opinion evidence on one of the complex issues for the solution of the jury." Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881, 885.
An early Alabama case on the point reversed the trial judge for admitting expert evidence on the effect of a piece of iron striking a scaffold upon which the deceased was standing. The court said that "the natural effect of the iron's striking against the scaffold was a matter within common knowledge, and the jury was as competent to form an opinion as a witness; and we think the court in this respect erred in permitting the witness to give his opinion against the objection of the defendant." Decatur Car Wheel & Mfg. Co. v. Mehaffey, 128 Ala. 242, 29 So. 646, 651.
This Court, in Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604, 607, said that "An expert witness, qualified to that end, may give his opinion as to the safety or danger of a place, or an appliance, when that issue is involved on the trial." That is true, but the admission of expert opinion evidence on the safety or danger of a place when that issue is involved on the trial is not inconsistent with, rather it is limited by, the rule that an expert witness may not testify to a matter of common knowledge. An examination of the Setzer case shows that the matter there inquired about was a proper case for expert testimony and not a matter of common knowledge.
True, the trial court has a certain amount of discretion in the admission of expert testimony. But that discretion goes to the qualification of the expert. Kozlowski v. State, 248 Ala. 304, 27 So. 2d 818; Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702. And it would be outside the scope of that discretion to allow the expert to testify to a matter of common knowledge.
The holding in the Norwood Clinic case, supra, that it was not error to admit expert opinion evidence on a matter of common knowledge was not necessary to a decision on the point considered and is somewhat in conflict with the foregoing cases, and we are unwilling to accept it as authority to avert a reversal for the admission of the stated evidence.
Applicant cites § 437, Title 7, Code of 1940, as supporting his contention that "the safety or danger of a place as affected by railroad tracks is not a matter of common knowledge and opinion evidence is admissible." We are not impressed with the *745 force of this contention. In the light of former decisions of this Court, we do not think the statute could be construed as meaning that with respect to the particular evidence under consideration it could be said that such is not a matter of common knowledge or that expert opinion evidence is admissible on that question.
Many authorities are cited and cogently argued by appellee, but it would unduly burden this opinion to treat each of them. Suffice it to say that after much study of applicant's able brief, we are constrained to adhere to the original opinion.
Rehearing denied.
All the Justices concur. | June 14, 1956 |
88c01488-ff78-49d4-b380-fb29490488b8 | Cates v. Bush | 307 So. 2d 6 | N/A | Alabama | Alabama Supreme Court | 307 So. 2d 6 (1975)
Eric O. CATES et al.
v.
Fred N. BUSH.
SC 960.
Supreme Court of Alabama.
January 23, 1975.
Calvin Poole and William Hamilton, Greenville, for appellants.
W. J. Williamson, Greenville, for appellee.
HEFLIN, Chief Justice.
This is an appeal from the Butler Circuit Court's "Decree Determining Issues Set Out in Pre-Trial Order of November 19, 1973." The motion to dismiss the appeal is granted.
Only a short explanation of the facts of this dispute is necessary for the purposes *7 of this opinion, since this court does not reach the substantive issue raised by the appellants-defendants (defendants).
S. D. Barganier died in 1918. His will gave the widow a life estate in his real property; she was given an unlimited power to dispose of the realty during her life, but no power to dispose of it by will. She made no disposition of the realty during her life. The will also purported to give at the widow's death some sort of life estate to four children (three step-grandchildren and one step-great-grandson) who were living with Mr. Barganier at the time of his death. Mr. Barganier had no children of his own.
The disputed portion of Mr. Barganier's will, Section Three, reads in part as follows:
As things turned out, two of the four children predeceased the widow. At her death the two survivors took possession of the realty; one died in 1952, and the survivor, plaintiff-appellee (plaintiff), Fred N. Bush, was in sole possession after that time.
Fred N. Bush filed a complaint in this case asking, inter alia, that the land be sold and the proceeds divided among the claimants, with the commuted value of his life estate being paid to him.
The defendants, who claim an interest in the land as the heirs at law of S. D. Barganier, answered and filed a "cross-bill" seeking an accounting from Fred Bush, based upon their claim that S. D. Barganier's heirs had held a fee in three-fourths of the land since 1952.
At the pre-trial conference on November 19, 1973, the trial court declared that the first issue to be decided was a construction of S. D. Barganier's will. The plaintiff Fred N. Bush claims that the will created in the four children a joint life tenancy with right of survivorship and that since 1952 he has had a life estate in the entire tract. The defendants contend that the will gave the heirs of S. D. Barganier a fee simple in three-fourths of the land upon the death of the third life tenant in 1952, and that Fred N. Bush from that time held a life estate as to only onefourth of the land.
On January 18, 1974, the trial court issued its "Decree Determining Issues Set Out in Pre-Trial Order of November 19, 1973." The court decreed that under the will Fred N. Bush held a life estate in the entire tract. It is from this decree that the appeal is taken.
The land has now been sold and the trial court holds the $92,100.00 purchase price, which will be distributed among the claimants according to their interests.
*8 Before this court can consider whether the trial court properly construed the will in question, it must appear that the decree appealed from was a final judgment. Except as otherwise provided by law, appeals lie only from final judgments. Title 7, Section 754, Alabama Code of 1940, as amended (Recompiled 1958); and without a final judgment this court is without jurisdiction to hear an appeal. Powell v. Republic Nat. Life Ins. Co., 293 Ala. 101, 300 So. 2d 359 (1974); McGowin Investment Co. v. Johnstone, 291 Ala. 714, 287 So. 2d 835 (1973); Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So. 2d 738 (1972); Mason v. McClain, 271 Ala. 93, 122 So. 2d 519 (1960).
The issue before this court then is whether the trial court's determination that Fred N. Bush had a life estate in the entire tract was a final judgment.
Rule 54(b) of the new Alabama Rules of Civil Procedure, which became effective on July 3, 1973, reads as follows:
The trial court has made neither "an express determination that there is no just reason for delay" nor "an express direction for the entry of judgment." The defendants contend that Rule 54(b) does not apply to this appeal, it being their contention that neither multiple claims nor multiple parties are presented. They argue that the appeal is therefore governed by Title 7, Section 754, Alabama Code of 1940, as amended (Recompiled 1958). Title 7, Section 754, reads as follows:
Rule 54(b) is a verbatim copy of its counterpart in the Federal Rules of Civil Procedure, as amended effective July 19, 1961. The Committee Comments to Rule 54(b), A.R.C.P., state:
It was the more liberal joinder of parties and claims allowed by the Federal Rules of Civil Procedure that brought about the need for Rule 54(b), F.R.C.P.; Wright and Miller, 10 Federal Practice and Procedure:
*9 Civil § 2653 (1973), at page 18, give the history of Rule 54(b), F.R.C.P., and there state:
Rule 54(b), A.R.C.P., serves this same purpose. See this court's opinion in Powell v. Republic Nat. Life Ins. Co., supra.
Rule 54(b), F.R.C.P., as originally adopted in 1938, provided that:
There soon arose a problem under this provision, because it was often difficult to know what was a final judgment and what was not, for appeals purposes. That problem was well stated by Mr. Justice Burton of the United States Supreme Court in the case of Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 434, 76 S. Ct. 895, 899, 100 L. Ed. 1297, 1305 (1956):
The federal rule was amended in 1948 to provide that when more than one claim was presented the court could direct entry of a final judgment as to one or more but fewer than all of the claims only "upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." See Wright and Miller, 10 Federal Practice and Procedure: Civil § 2653 (1973).
Mr. Justice Jackson of the United States Supreme Court stated in Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 512, 70 S. Ct. 322, 324, 94 L. Ed. 299, 302 (1950), that the purpose of this amendment was:
It is, of course, in view of this history of Rule 54(b), F.R.C.P., that this court construes Rule 54(b) of our own Alabama rules.
The trial court made no "express determination that there is no just reason for delay" and made no "express direction for the entry of judgment." Rule 54(b) provides that:
Did this case present "more than one claim for relief"? If so, there has been no "final judgment."
The plaintiff's complaint sought, among other things, 1) that the land be sold and the proceeds divided as the claimants' interests appear; 2) that the value of Bush's life estate be paid to him; 3) that in determining the value of Bush's life estate, the court take into consideration the improvements he had made over the years and the value of the trees planted at his own expense; 4) that $3,500.00 paid into court by the state in a 1965 condemnation proceeding be distributed to the claimants according to their interests; and 5) that the attorney who represented Bush in the 1965 condemnation suit be paid an attorney's fee out of the $3,500.00 on hand before distribution. The defendants answered and filed a "cross bill," which this court will treat as a "counterclaim." Rule 81(e), A. R.C.P. This counterclaim sought an accounting for the defendants' proportionate share of 1) all sums received by Bush from the sale of timber, improvements, and peanut and cotton allotments, 2) all rents collected, and 3) all payments received from the United States Department of Agriculture.
The United States Supreme Court in two often-cited opinions has attempted to clarify the phrase "more than one claim for relief"; see Sears, Roebuck & Co. v. Mackey, supra, and Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S. Ct. 904, 100 L. Ed. 1311 (1956). In discussing these two cases, Wright and Miller, 10 Federal Practice and Procedure: Civil § 2657 (1973), state at pages 50-52:
This court is of the opinion that in this case the complaint, asking for sale of the land, and the counterclaim, asking for an accounting, presented "more than one claim for relief," either of which could have been separately enforced. This is precisely the type of situation Rule 54(b) was intended to cover. The fact that the claims may have arisen out of the same set of facts does not mean they are not multiple claims.
Because this case involved multiple claims and the trial court has made no "express determination that there is no just reason for delay" and no "express direction for the entry of judgment," there has been no final judgment and this appeal must be dismissed.
The defendants have urged this court to "set at rest the question of whether or not Rule 54(b) supersedes and nullifies Section 754 of Title 7 of the Code relating to the finality of appeals." The answer is that Title 7, Section 754, is neither superseded, nullified, nor modified. Title 7, Section 754, provides that, except in unusual circumstances, appeal must be only from a final judgment. Rule 54(b) merely sets out one instance where a judgment may now be made final although it would not have been final prior to the adoption of the new rules. The effect of Rule 54(b) as it relates to Title 7, Section 754, is explained in the Committee Comments to Rule 54(b).
Plaintiff's motion to dismiss the appeal is granted.
Appeal dismissed.
COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL and FAULKNER, JJ., concur. | January 23, 1975 |
94d3c501-5708-473b-966b-de66434a66db | Graves v. McDonough | 88 So. 2d 371 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 371 (1956)
John GRAVES, as State Comptroller,
v.
James B. McDONOUGH, Jr.
3 Div. 700.
Supreme Court of Alabama.
June 14, 1956.
*372 John Patterson, Atty. Gen., and Gordon Madison, Asst. Atty. Gen., for appellant.
Vickers & Thornton, Mobile, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal by John Graves, as State Comptroller, from a final decree of the Circuit Court of Montgomery County, in Equity, making a declaratory judgment.
The bill seeking a declaratory judgment was filed by appellee, and alleges the existence of an actual controversy between him and the state comptroller, which arose out of a claim by appellee that the comptroller should draw a warrant on the state treasurer in favor of appellee for an amount which the Probate Judge of Mobile County certified to the comptroller as a refund of taxes paid by appellee on an erroneous escape assessment made by the tax assessor on certain improvements to described lots in Mobile County. Appellee in his bill asserted the claim that such escape assessments, attempted to be made by authority of section 53 of Title 51, Code of 1940, were void and of no effect, and that he made application to the Judge of Probate of Mobile County to procure a refund on account of such error or mistake by him in paying the tax based upon such illegal escape assessment.
The probate judge examined the petition and tax books and found the facts set forth in the petition are such as to entitle appellee to a refund of the money as prayed for, and so certified to the comptroller. (This is alleged to be provided for in Sections 328, 329 and 330, Title 51, Code of 1940.) The comptroller refused to draw his warrant on the treasurer in favor of appellee for the amount so certified. Section 330 provides that if the comptroller shall be satisfied that the petitioner is entitled to have the money refunded to him, he shall draw his warrant on the treasurer, etc.
The comptroller claims that the error or mistake mentioned in Sections 328-330, supra, is not such as requires a refund of taxes paid by reason of an illegal assessment made under Sec. 53, Title 51, supra. He also claims that a declaratory judgment is not the appropriate remedy to determine whether appellee is entitled to a warrant drawn by *373 the comptroller under the circumstances; and, further, that appellee made a voluntary payment of the assessed tax in question without protest or appeal from the assessment as authorized by Sec. 53, Title 51, supra.
The decree appealed from found and declared against the comptroller on those questions, and he insists upon them on this appeal.
The brief of the Attorney General representing appellant frankly admits that the attempted escape assessment made by authority of Sec. 53, Title 51, supra, was not legally justified by that Statute, on the authority of State v. Mortgage-Bond Co. of New York, 224 Ala. 406, 140 So. 365. The result of that admission is that although legally and technically appellee was not due to have paid that escape assessment, he voluntarily did so without protest and without pursuing the statutory course provided in Sec. 53, Title 51, supra, by appealing to the circuit court; also, that in the alternative, his remedy, if any, was by mandamus. He is not insisting that this is a suit against the state in violation of section 14 of the Constitution.
First, we inquire whether there is any administrative method provided by law which appellee must have pursued to obtain a refund.
Section 53, Title 51, supra, provides that the tax assessor shall give notice of the escape assessment, and that such person may appear within twenty days and make objection to the assessment, and appeal to the circuit court from an adverse ruling. If no objection is made, the tax assessor shall make the assessment final. But we think the taxpayer by failing to object was not cut off from other remedies which he may have had to contend that the assessment was void for want of legal authority, and to obtain a refund. The assessment is void under the authority of State v. Mortgage-Bond Co. of New York, supra. Being void, the taxpayer was not required to pursue any certain remedy to get it so declared and obtain a refund. "The necessity for pursuing the statutory remedy does not exist where the assessment complained of is void and illegal." 84 C.J.S., Taxation, § 513, Note 90.
"It is the general rule that a taxpayer seeking judicial relief from an erroneous assessment must have exhausted his remedies before the administrative body empowered initially to correct the error. * * * An exception is made when the attempted assessment is a nullity because the property is either tax exempt or outside the jurisdiction." Security-First Nat. Bank v. Los Angeles County, 35 Cal. 2d 319, 217 P.2d 946, 947; Bank of America Nat. Trust & Savings Ass'n v. Mundo, 37 Cal. 2d 1, 229 P.2d 345.
True, the Mortgage-Bond case, supra, merely affirmed on appeal the judgment of the circuit court without considering the necessity to appeal to the circuit court from such an assessment. We do not think that appellee was required to make objection to the tax assessor and appeal from the assessment as a condition to a contention that the escape assessment was illegal and without authority of law. 84 C.J.S., Taxation, § 513.
The question then arises as to whether Sections 328-330, supra, afford relief. In order to determine that question, it is appropriate to look to some other features of the law then existing and thereafter enacted.
Sections 328-331, Title 51, Code of 1940, were first enacted in the General Revenue Act of 1919, General Acts 1919, p. 362, Sections 273-275. There have been some changes made since then, to which we shall call attention later. At that time, section 332, Tit. 51, was in existence by virtue of an act of the Legislature of 1907, General Acts 1907, p. 639, and was carried into the Code of 1907 as section 2345, and later in the Code of 1923 as section 3144. It was in the same language as it now appears in section 332, supra. It approvided for a refund of taxes paid under mistake of law or fact upon any illegal tax assessment, but not taxes paid to the state nor to the general fund of counties. So that, at the time of the *374 enactment of section 328, Title 51, Code 1940, there was a provision for a refund of taxes paid under a mistake of law or fact under an illegal assessment except state taxes, and those that went into the general fund of counties. Under that act, the right to refund applied to every sort of tax on assessments which were illegal but made under color of law except state and certain county taxes.
It is fair to assume, therefore, that the first enactment of section 328, as it appeared in the 1919 Act, was intended to cover what had been excepted in 1907 by enacting what is now section 332, Title 51, Code 1940; and there is further evidence of that conclusion. There was a re-enactment of Sections 328-331 in the General Revenue Act of 1935, Gen.Acts 1935, p. 379, Sections 296-299. This Act of 1935 also included what is now section 332, supra, in section 300 of it. There was also in the Act of 1935 what is now section 890, Tit. 51, Code 1940. That was section 379 of it, Gen.Acts 1935, p. 568 of the published act. It provided for a refund of the amount of any tax levied under it except ad valorem which was excessive or invalid. So that the Act of 1935 embraced a re-enactment of Sections 328-331, also a re-enactment of section 332, and section 890 first came into existence.
We think those statutes were intended to cover the entire field of excessive or illegal taxes levied and paid in the usual way. Section 913, Tit. 51, Code 1940, applies to collections made by the Department of Revenue, and section 848, Tit. 51, Code 1940, applies to a refund of license taxes. We think Sections 328-331, supra, were intended to include those excepted in Sections 332 and 890.
We do not attach importance to the language of section 328, making it apply to payments through mistake or error. It was said in Smith v. Tennessee Coal, Iron & R. Co., 192 Ala. 129, 68 So. 865, 866, that money paid and collected under what purported to be a valid statute but which in law was not valid, was paid under a "`mistake or error'", and was within the meaning of the statute. We think we are on safe ground in holding that Sections 328-331, Tit. 51, Code 1940, apply to ad valorem taxes paid to the state on an invalid assessment.
It is insisted that the tax sought to be recovered was voluntarily paid, not under compulsion or protest. Sections 328-331, supra, as they appear in the Code of 1940, contain no provision with reference to that. Payment under compulsion or under protest must exist if not waived. Home Ins. Co. v. City of Birmingham, 236 Ala. 41, 180 So. 783. Section 332, supra, provides that it shall not be material to the right to refund whether it was paid under compulsion or protest. City of Prichard v. Hawkins, 255 Ala. 676, 53 So. 2d 378; Hawkins v. City of Prichard, 249 Ala. 234, 30 So. 2d 659; Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So. 2d 924; Allred v. Dunn, 207 Ala. 469, 93 So. 390.
When Sections 328-331, supra, were enacted in 1919, Gen.Acts 1919, p. 362, it was provided that the refund was available "unless said tax was with knowledge of the facts voluntarily paid by the taxpayer." When re-enacted in 1935, Gen.Acts 1935, p. 379, it contained the same clause. The enactment of section 890, Tit. 51, Code, Gen.Acts 1935, p. 568, § 379, in the same act with present Code Section 328, required the taxpayer to make protest to justify a refund. So, at that time (1935), Sections 328 and 890 required compulsion or protest, and section 332 did not require it. When those laws were placed in the Code of 1940, § 332 continued to waive compulsion or protest, and section 890 continued to require protest; but in section 328 (here important), the provision denying refund, if payment was voluntary, was eliminated.
From the foregoing, we think the clause was left out as an indication that the provision was not regarded as important. It was expressly included in section 890, as amended. Pocket Part, Code 1940.
Section 332, we repeat exempts a requirement for protest. There is no such requirement in section 328, supra. It is apparent that when the legislature required protest it was so provided in respect to the statutes *375 there in question. We think there should not be read into the statute a provision requiring compulsion or protest, when such provision was eliminated in setting out the statute as it now appears in the Code.
This is a suit for a declaratory judgment under section 156, Tit. 7, Code 1940. By section 167, as amended, Pocket Part, Code 1940, the right to such a judgment is not dependent upon inability to obtain relief by some other court procedure. We will not, therefore, inquire into that contention.
The decree of the trial court was in accord with our views, and it is therefore affirmed.
SIMPSON, GOODWYN and SPANN, JJ., concur. | June 14, 1956 |
2e675e63-bcf3-4c9d-93b8-f0bed95668ce | Woods v. State | 87 So. 2d 633 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 633 (1956)
James WOODS
v.
STATE.
6 Div. 945.
Supreme Court of Alabama.
May 24, 1956.
*634 Matt Murphy, Jr., Birmingham, for appellant.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for appellee.
LIVINGSTON, Chief Justice.
This is an appeal under Sec. 369, Title 15, Code of Alabama 1940, taken by petitioner from a judgment on a petition for writ of habeas corpus. The judge granted the writ, had a hearing on the return of the sheriff, and thereupon made the following order:
The return of the sheriff admitted that he held petitioner in custody but by virtue of the following authority:
The warrant under which petitioner was held is as follows:
The judgment rendered by the Jefferson County Court of Misdemeanors is as follows:
"The State vs. James WoodsFugitive from justice8-14 8-29
The state has submitted a motion to dismiss the appeal because appellant has not filed a brief as required by the Rules of the Supreme Court, Code 1940, Tit. 7 Appendix. We note that in criminal cases it is not necessary for the appellant to submit a brief on appeal. Sec. 389, Tit. 15, Code 1940; Higginbotham v. State, 262 Ala. 236, 78 So. 2d 637, and cases there cited. That statute does not expressly dispense with a brief by appellant, but requires the court on appeal in criminal cases to "consider all questions apparent on the record or reserved by bill of exceptions." New Supreme Court Rule applies "in criminal cases, and in all other cases in which briefs are not required." Rule 16.
It seems to be the general opinion that habeas corpus is a civil, as distinguished from a criminal, remedy or proceeding, regardless of whether the prisoner is detained under civil or criminal process. *636 39 C.J.S., Habeas Corpus, § 1, p. 426; Ex parte Tom Tong, 108 U.S. 556, 2 S. Ct. 871, 27 L. Ed. 826; Riddle v. Dyche, 262 U.S. 333, 43 S. Ct. 555, 67 L. Ed. 1009; Ex parte Smotherman, 140 Ala. 168, 37 So. 376.
Section 369, supra, which governs here, provides that on appeal in such cases the appellate court shall "consider the case on the record and the evidence as set forth." Said section expressly provides that no bill of exceptions or assignments of error are necessary or required.
It follows that since no briefs are required on such appeals, Rule 16, supra, applies to them as in criminal cases. The appeal should not be dismissed for the absence of a brief for appellant.
Neither party to this appeal has filed a brief on the merits. But it is our duty to consider the case on the record and the evidence as set forth, to see if the order of the trial judge is correct and should be affirmed, or is erroneous and should be reversed,all as required by Sec. 369, supra.
On the trial, the evidence showed that petitioner was arrested on the warrant [copied hereinabove], and on trial was "ordered to be released to the New York authorities." The proceeding for his arrest and the order releasing him to the New York authorities were claimed by virtue of Sec. 27, Tit. 42, Code of 1940.
On the trial of this habeas corpus case, it was agreed in open court that pursuant to Sec. 27, supra, the Governor of Alabama and the Governor of New York had entered into an agreement as recited in the statute. But defendant contended that our statute, supra, is void because it violates the due process clause of the Constitution, and that the order for his release to the New York officers was without legal authority. That contention was denied and overruled, and it presents the only matter shown by the transcript, which is our duty to consider on this appeal under Sec. 369, supra.
The statute referred to, Sec. 27, Tit. 42, Code 1940, is a codification of an act approved August 24, 1939, General Acts 1939, p. 432. It recites that it was enacted upon the authority of an Act of Congress granting the consent of Congress to such a pact between the governors of two or more states. We find the Act of Congress first appears in 48 U.S. Statutes at Large 1933-34, p. 909, Chapter 406, and is in the following language:
"Approved, June 6, 1934."
It was due to be Sec. 420, Tit. 18 U.S.C. A. The pocket part contains reference to its readoption May 24, 1949, c. 139, § 129(b), 63 Stat. 107. Instead of being carried into Tit. 18, it now appears in Title 4, § 111, U. S.C.A.
Section 27, Tit. 42, supra, does not contemplate such a proceeding based upon an affidavit and warrant for violating a parole in New York, but provides that under such a pact with New York it may permit a parolee of that state under named circumstances to reside in Alabama without that circumstance violating his parole. Those circumstances were not shown by the evidence, nor was it necessary to do so. Sec. 27, supra, provides that duly "accredited officers of a sending state [New York here] may at all times enter a receiving state [Alabama] and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority *637 of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state." We need not refer to the other features of the act.
It will be observed that it does not provide for any preliminary proceeding to be conducted by the New York officer before apprehending and retaking a probationer or parolee, nor for any judicial proceeding to determine the identity of the person apprehended, or whether his probation or parole has been revoked or whether the person arresting him is "a duly accredited officer" of New York.
The validity of this procedure was questioned in Arkansas, and considered in the case of Gulley v. Apple, 213 Ark. 350, 210 S.W.2d 514, 518. There, the trial court held that because no proceeding was required to apprehend and retake a parolee, and no provision for reviewing the legality of such seizure, it violated due process, and that Article IV, Sec. 2, Clause 2 of the United States Constitution and Acts of Congress were the only authority for such procedure, and it was not authorized by them. On appeal, attention was called to Article I, Sec. 10 of the Constitution, which provides that "No state shall enter into any Treaty, Alliance or Confederation" without the consent of Congress. It was pointed out that Congress had consented by the enactment to which we have referred and that Missouri and Arkansas had entered into a compact adopting the Uniform Act. The court referred to that feature of the Uniform Act, which we have here copied, and the contention that it violated due process. In answering it, the Arkansas Supreme Court referred to Article IV, Sec. 2, Clause 2, supra, and the Congressional Acts, and then proceeded:
The opinion then stated:
We have copied the foregoing extensively since the questions are new in Alabama and in other states. The argument and conclusion which are set out above are, we think, sound and are here adopted.
This act has been upheld also in the case of Pierce v. Smith, 31 Wash. 2d 52, 195 P.2d 112.
The questions on habeas corpus when the statute in question is relied on are: (1) a compact between the governors as authorized by the statute; (2) whether the officer apprehending the person involved is a duly accredited officer of the sending state (New York here); (3) whether the person apprehended is in fact a probationer or parolee of that state; and (4) whether the sending state has revoked the probation or parole of the person apprehended and decided to retake him.
The petition for habeas corpus here in question does not challenge any of those requirements. The only question involved on the appeal is the constitutionality of the statute, Sec. 27, Tit. 42, supra, for being violative of due process. We do not agree with such contention. Therefore, there was no error in the order of the judge declining to grant the discharge of the petitioner.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
8c63e4b5-f080-4b2b-beeb-8eee1e99a719 | Nelson v. Johnson | 88 So. 2d 358 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 358 (1956)
Thomas F. NELSON et al.
v.
James W. JOHNSON.
8 Div. 731.
Supreme Court of Alabama.
June 14, 1956.
*359 Peach, Caddell & Shanks, Decatur, for appellants.
Russell W. Lynne, Decatur, for appellee.
LIVINGSTON, Chief Justice.
This is an action by plaintiff, James W. Johnson, against defendants, Thomas F. Nelson and the City of Decatur, to recover damages for injuries sustained by plaintiff in a collision between a motorcycle driven by plaintiff, and a truck driven by Nelson, the truck being owned by the City of Decatur. This appeal was perfected from a judgment awarding damages to plaintiff. The two principle questions to be decided on this appeal are whether the complaint alleges that Nelson was engaged in performing a corporate function of the City of Decatur, and if it does, whether the evidence introduced by plaintiff is sufficient to make out a case for the jury.
*360 The material portion of the complaint is as follows:
Defendants separately and severally demurred to this complaint on the ground that the use of the vehicle for the purposes alleged was not in the discharge of any corporate or ministerial function of a municipality. Appellants contend that it was error to overrule this demurrer as to the defendant municipality.
To hold a municipality liable for the negligent act of one of its agents, it is necessary to allege facts showing that the agent is engaged in the performance of a ministerial or corporate work and not a governmental function. City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; McSheridan v. City of Talladega, 243 Ala. 162, 8 So. 2d 831; City of Bay Minette v. Quinley, 263 Ala. 188, 82 So. 2d 192. This court has determined and settled that the maintenance of public streets is a corporate function of a municipality and that the municipality is liable for the negligent performance of that function by its agents where such negligence results in injury. Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89; Id., 216 Ala. 661, 114 So. 55; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841.
In City of Birmingham v. Whitworth, supra, this court held that a complaint which alleged that defendant municipality's agents were engaged in the operation of defendant's truck to haul slag or cinders for the purpose of building, maintaining, or repairing a portion of the public streets alleged the performance of a ministerial function. We see no material distinction between hauling slag or cinders to be used in the maintenance of streets and in the hauling of oil or other inflammable fuel to points in the city to refuel signal flares which were placed about excavations in the streets to warn the public of danger. Part of a municipality's duty to maintain its streets is the duty to erect guards or warning signals at places where the city leaves excavations in the streets, and the municipality is liable for injuries caused by the negligent failure to do so. City of Birmingham v. Young, 246 Ala. 650, 22 So. 2d 169, and cases cited therein. In Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42, 44, the complaint alleged that the injury occurred late in the afternoon while defendant's agents were on the way to place lights about a hole which a city agency had dug in the street in order to *361 work on water equipment. The court held that the defendant's demurrer was properly overruled, and said:
We are convinced that the same reasoning applies to the case before us and that the complaint alleges that Nelson was engaged in the performance of a corporate function of the City of Decatur at the time of the injury to plaintiff.
The evidence reveals that defendant, Nelson, was an employee of the Street Department of the City of Decatur, whose duty, on the day of the accident, was to service signal flares which were placed about excavations at two places in the streets of Decatur. To accomplish this mission, he was furnished with a truck by the city which he was to keep at his home over the week end. In addition to servicing the flares, he was to be on call to answer any complaints concerning the street department. On Saturday afternoon, he lighted the flares, and on Sunday morning proceeded in the truck to the locations of the excavations where he blew out the lights, refilled the containers with fuel and set them in place to be relighted before dark. He then went to the city garage and stayed for about an hour. Between 12 noon and 1:00 P. M., he left the garage in the city truck to return to his home where he would wait until late afternoon when he would drive out and relight the flares. In the truck, Nelson had some flares and a five-gallon oil can in which was the remainder of the oil that had been used to refill the flares, and which was to be used in the afternoon in the event any of the flares had been turned over and spilled during the day. It was on this trip to Nelson's home that the accident which caused injury to plaintiff occurred.
Appellants' contention is that the evidence does not prove performance of a corporate function by Nelson, and further, that there is a variance between the allegations and the proof and the affirmative charge should have been given for the defendant City of Decatur.
We think it clear that the evidence is sufficient to justify a finding that at the time of the accident Nelson was engaged in the business of hauling fuel oil to various locations in the city to refuel signal flares. It is true that at the time, he had already filled the flares and was returning to his home to wait until time to drive back out and light the flares for the night, but it cannot be said that his mission was complete until he had completed the return trip to the place of duty, which in this case was his home; nor can we say that the fact that he was on the return trip is at variance with the allegations. To do so would be to hold that he had completed his mission at the time of filling the flares, and that on his return trip he was engaged in a function other than the maintenance of streets. The test is the service in which the employee is engaged. City of Bessemer v. Barnett, supra. The rule which has been approved for determining whether certain conduct of an employee is within the line and scope of his employment is substantially that if an employee is engaged to perform a certain service, whatever he does to that end, or in furtherance of the employment, is deemed by law to be an act done within the scope of the employment. Railway Express Agency v. Burns, 225 Ala. 557, 52 So. 2d 177; Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 118 So. 674. Here, Nelson had the duty to service the flares and whatever he did to that end was within the scope of his employment. The issue was properly left to the determination of the jury.
Assignments of Error 9, 10 and 11 are directed toward the court's sustaining *362 of plaintiff's objections to questions propounded to plaintiff concerning incidents which defendants contend to show bias and hostility on the part of plaintiff. The extent of cross-examination on irrelevant facts, for the purpose of testing bias or credibility of the witness' testimony is a matter resting largely in the discretion of the trial court, and his ruling will not be disturbed unless it appears that he has abused his discretion to the prejudice of the complaining party. Birmingham Ry L. & P. Co. v. Lipscomb, 198 Ala. 653, 73 So. 962; Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541; Louisville & N. R. Co. v. Martin, 240 Ala. 124, 198 So. 141; Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594. Here, the court's ruling did not prejudice the defendant, for immediately after this ruling the witness was allowed to testify that he had "bad feelings" for the officials of Decatur and "ill-will" towards the defendant, Nelson.
The court gave the following written charge at the request of the defendant:
Immediately after giving this charge, the court charged orally as follows:
In overruling defendant's motion for a new trial, the trial court said that in his opinion the explanation was proper in order to make clear to the jury that the issue was one of causation, and that in order for the defendant to be liable for subsequent negligence, this negligence would have to follow the contributory negligence and be the proximate cause of the injury. We are in accord with the trial court, and are of the opinion that this did not operate as a qualification of the charge given at defendants' request. The court's charge was an explanation of the type approved by Alabama decisions. Bell's Adm'r v. Troy, 35 Ala. 184; Eiland v. State, 52 Ala. 322; Callaway & Truitt v. Gay, 143 Ala. 524, 39 So. 277; St. Louis & S. F. R. R. Co. v. Hall, 186 Ala. 353, 65 So. 33; Davis v. State, 216 Ala 475, 113 So. 393.
The points of law contained in each of the charges which defendants argue it was error to refuse were substantially covered either in the court's oral charge or in other charges given at the request of defendants; therefore, we cannot say that any error in the refusal of these charges has probably injuriously affected rights of the parties. Under these circumstances, there is no error to reverse. Supreme Court Rule 45, Code 1940, Title 7 Appendix.
It was not error to allow the plaintiff's attorney to draw a diagram of the scene of the accident on the floor of the courtroom on which a witness placed marks indicating the location of objects about which he testified. This diagram is not evidence and it was proper to allow the witness to use it to give a graphic demonstration of his testimony. Campbell v. State, 23 Ala. 44; Shook v. Pate, 50 Ala. 91; Wilkinson v. State, 106 Ala. 23, 17 So. 458; Alabama Power Co. v. Jones, 212 Ala. 206, 101 So. 898; Carter v. Commonwealth, 260 Ky. 538, 86 S.W.2d 290.
Careful examination of the record does not reveal that the ruling of the trial court in denying defendants' motion for a new trial should be disturbed on either of the grounds argued by appellant; namely, that the verdict is contrary to the law of the case and that the verdict is against the great preponderance of the evidence.
*363 There being no error to reverse appearing in the record, the judgment of the lower court is due to be, and is hereby, affirmed.
Affirmed.
SIMPSON, GOODWYN and SPANN, JJ., concur. | June 14, 1956 |
cf256c0e-e64c-4ec7-9138-5842f9543571 | Shelby County v. Hatfield | 88 So. 2d 842 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 842 (1956)
SHELBY COUNTY
v.
O. A. HATFIELD et al. (Tract No. 88-A).
7 Div. 318.
Supreme Court of Alabama.
June 21, 1956.
*843 Handy Ellis, Columbiana, for appellant.
Karl C. Harrison, and Wales W. Wallace, Jr., Columbiana, for appellees.
MERRILL, Justice.
Appeal from a judgment of the Circuit Court of Shelby County fixing appellees' damages and compensation in a condemnation proceeding at $3,500.
On March 5, 1954, Shelby County filed a petition in the Probate Court of that county to condemn lands of appellees for highway purposes. From the final order of condemnation in the Probate Court, the appellees appealed to Circuit Court and demanded a jury. After verdict and judgment in favor of the appellees, appellant filed a motion for a new trial which was overruled and Shelby County prosecuted this appeal.
There are twenty-three assignments of error. Numbers 9, 10, 11, 12 and 13 are not mentioned in brief and are not considered; Supreme Court Rule 9, Code 1940, Tit. 7 Appendix. Appellees strenuously insist that appellant's brief does not comply with other provisions of Rule 9. The "Statement of the Case" is adequate, but the purported "Statement of the Facts" makes no reference "to the pages of the transcript" as required by the rule. The "Propositions of Law" are five general propositions and comply with the rule, but no specific application to the rulings assigned for error is made in brief, and no authority is ever mentioned or cited in the "Argument" section of the brief in support of any assignment of error. Where there is no citation of, or reference to, an authority in the argument pertaining to any assignment, we think the argument does not "`reach the dignity of an insistence upon the grounds of error covering it.'" Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604, 607; Suits v. Glover, 260 Ala. 449, 71 So. 2d 49, 43 A.L.R.2d 465; 2A Alabama Digest Appeal and Error. Although Appellant's brief does not conform with Rule 9, we can, in our discretion, consider some of the assignments of error insisted on in brief; Simmons v. Cochran, 252 Ala. 461, 41 So. 2d 579, and we exercise that discretion, because most of the assignments are concerned with requested written charges.
Assignments of error 1, 2, 3, 4, 5, 7, 8 and 14 are based upon the refusal of certain requested written charges. All of these charges instructed the jury that the fact that adjacent lots may have been filled in with dirt or rock, or that water was caused to flow onto appellees' land, "cannot be considered by you." But appellant requested, and the court gave, a written instruction (charge A-1) that the jury should consider the fill and the water. This latter charge was inconsistent and in conflict with the eight refused charges. The appellant, having invoked the ruling of the court in giving charge A-1, will not be heard to complain that the court refused to give written charges inconsistent therewith. Western Union Tel. Co. v. Griffith, 161 Ala. 241, 50 So. 91. Moreover, some of these charges were properly refused because they were not predicated on the evidence. Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214; Birmingham Belt R. Co. v. Nelson, 216 Ala. 149, 112 So. 422; Birmingham Baptist Hospital v. Branton, 218 Ala. 464, 118 So. 741; Hammond Motor Co. v. Acker, 219 Ala. 291, 122 So. 173.
Assignment of error 6 is based upon the refusal of charge 6. This charge is elliptical, in that there is no subject for the predicate, and reversible error will not be predicated on its refusal. Sovereign Camp, W. O. W. v. Gay, 217 Ala. 543, 117 So. 78; Jones, Alabama Jury Instructions Sec. 281.
Assignments of error 15, 16 and 18 relate to exceptions taken to parts of the oral charge of the court. The statements of the court were to the effect that in estimating *844 the damages, the jury may take into consideration the acreage or amount and value of the land taken for the right of way. Appellant's discussion of assignment of error 15 includes the following:
No authority is cited, but, based on the argument, appellant's fifth proposition of law probably is directed at this contention. That proposition is:
Each of the cases cited contain this statement:
Each case cites in support of the statement, several cases including the cases from which we now quote. In Pickens County v. Jordan, 239 Ala. 589, 196 So. 121, 123, this court said:
In Pryor v. Limestone County, 222 Ala. 621, 134 So. 17, 18, the court said:
See also Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718, 720, where it was said:
Therefore, one of the elements of "just compensation," and one of the elements of value to be considered is the value of the land actually taken, and the oral charge of the court was in conformity with this principle. The oral charge also adequately covered the rule as to "the final inquiry" in these cases. We add that we are unable to agree that the two Morgan County cases cited in proposition V are supportive of the proposition quoted from appellant's brief, nor do they support the quoted portion of appellant's argument.
Assignment of error 19 is based on the trial court's failure to grant the motion for a new trial. Appellant argues that certain photographs introduced at the hearing on the motion showed that very little substantial damage had been done to appellees' property. The trial court permitted the photographs into evidence over objection of the appellees. The record is silent as to when the pictures were taken, except that they must have been taken at least two days before the hearing on the motion, because the photographer's affidavit was acknowledged on that date. There is nothing in the record to show that this evidence is intended to impeach or contradict former evidence or that it is newly discovered evidence. For aught that appears from the record, this evidence was neither relevant nor material and there was a total lack of identification as to the time the pictures were taken. We assume the trial court did not consider them and neither can we. Based on the record before us, the motion for a new trial was properly overruled.
There is no support in the propositions of law in brief for the remaining assignments of error and they are not considered.
The judgment of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 21, 1956 |
16963692-7e2b-4f07-8a17-1cd3a73dfed6 | Hochman v. State | 91 So. 2d 500 | N/A | Alabama | Alabama Supreme Court | 91 So. 2d 500 (1956)
M. HOCHMAN
v.
STATE of Alabama.
1 Div. 667.
Supreme Court of Alabama.
June 30, 1956.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for petitioner.
Chas. Hoffman, Mobile, opposed.
SIMPSON, Justice.
Writ of certiorari to the Court of Appeals was granted. Revised Rule 39, Code 1940, Tit. 7, Appendix.
The State's petition for certiorari brings before us for review the opinion and judgment of the Court of Appeals holding the complaint on which defendant (appellant) was tried subject to the demurrer.
The complaint charges that accused did keep on his premises at a designated place "automobile and airplane tires in such a manner as to make it a menace or likely to become a menace to the public health *501 * * * in violation of Title 22, Section 75, of the 1940 Code of Alabama."
The claimed infirmity pointed out by the demurrer, and sustained by the Court of Appeals, is that the complaint did not sufficiently inform accused, with reasonable certainty, of the nature of the accusation made against him. More specifically, as appears from the opinion of the Court of Appeals, the allegation that the tires were kept in such a manner as to make it a menace or likely to become a menace to public health was no more than a conclusion of the pleader, no facts being supplied to support it.
The Attorney General relied and relies upon the proposition that the complaint followed the language of the statute creating the offense and was, therefore, not demurrable.
The decision of the Court of Appeals is rested largely upon the case of Gayden v. State, Ala.App., 80 So. 2d 495, as affirmed by this Court in 262 Ala. 468, 80 So. 2d 501.
The complaint in this case follows substantially the language of the statute, Code, Tit. 22, § 75, to which it refers. That statute declares certain things, conditions and acts to be public nuisances per se, menacing public health and unlawful, inter alia "(7) * * * the doing of a thing, not inherently insanitary or a menace to public health in such a manner as to make it a menace or likely to become a menace to public health." This statute constitutes a part of the article concerning Health and Health Regulations. Section 104 of the title provides that "any person who violates any of the health or quarantine laws, except those for which a special penalty is prescribed, shall be guilty of a misdemeanor."
The general rule invoked by the Attorney General, to the effect that indictments and complaints substantially following the language of the statute are sufficient, has frequently been applied by the courts of this State, as appears from the cases collected in Vol. 12 Alabama Digest, Indictment and Information. But the rule is not without qualification or exception, as also appears from the cases listed under of the same subject. Some of the cases, upholding the indictment or complaint under the general rule, while reaching the correct conclusion, may be subject to the criticism of stating the rule too broadly. For the general rule is applicable only where the statute itself sufficiently defines, describes or sets forth the essential elements of the offense. The fact that affidavits or complaints following the language of the statute creating the offense have in some cases been upheld and in others condemned illustrates very clearly that the determinative factor is the sufficiency, vel non, of the language of the particular statute, when pursued in the accusation, to apprise the accused with reasonable certainty of the nature of the accusation made against him, to the end that he may prepare his defense and be protected against a subsequent prosecution for the same offense.
Analyzing the complaint here before us along with the statute creating the offense, it will be observed that the complaint goes beyond the statutory generality of the "doing of a thing," etc., and is specific in its designation of the thing done and the objects involved, e., the keeping of automobile and airplane tires. The manner of the keeping, the essence of the offense, as described or defined in the words of the statute and as charged in the complaint, is not lacking in specificity. The words "in such a manner as to make it a menace or likely to become a menace to public health" inform the accused that the manner, method or way employed by accused in keeping the tires, whatever it might have been, was alleged to make it a menace. Conceding that the allegation that the manner of the keeping made it a menace is a conclusion, it should be borne in mind that under our system of pleading, indictments are rather a statement of legal conclusions, than of facts. Rivers v. State, *502 97 Ala. 72, 12 So. 434; Boyd v. State, 3 Ala.App. 178, 57 So. 1019.
But a complaint virtually in the identical wording of the complaint here involved, and drawn under the identical statute, Code, Tit. 22, § 75, has been before the Court of Appeals and there held to be sufficient as against a like ground of demurrer. Waldrop v. State, 32 Ala.App. 496, 27 So. 2d 264. In the opinion of the Court of Appeals in the instant case the Waldrop case is expressly overruled, upon the conclusion that it conflicts with the opinions in the Gayden case, supra. In this we think the Court of Appeals is in error.
The opinions in the Gayden case are, as applied to this case, inapposite. Beyond the fact that the offense was charged in the language of the statute creating the offense in that case and in this one, there is no analogy. The wrongful act was defined only in general, or "generic", terms in the statute involved in the Gayden case. The two counts of the indictment were condemned because they did no more than follow those terms, with no allegations added to afford the specificity required. The statute here involved is quite different from that in the Gayden case. In the opinion of this Court in that case we said:
We then proceeded to outline the exception to the general rule and to apply the exception to the case in hand. While in no wise reflecting upon the opinions in the Gayden case, we deem it well to reiterate what we have hereinabove stated, that in each case the determinative factor is the sufficiency, vel non, of the language of the particular statute.
We are unable to see how the offense could have been more specifically described without pleading evidentiary facts, and, as has been often held, "it is not required that an indictment set up the proof necessary to a conviction." McLain v. State, 15 Ala.App. 24, 72 So. 511, 512; Johnson v. State, 152 Ala. 46, 44 So. 670, among others.
It results as our judgment that the complaint was not subject to the demurrer, and that the Court of Appeals was in error in reversing the judgment upon that ground and in overruling its prior case of Waldrop v. State, supra. Since that was the sole question dealt with, we remand the case to the Court of Appeals for its further consideration.
Reversed and remanded.
All Justices concur except MERRILL, J., who concurs in result. | June 30, 1956 |
75432055-bbfd-4008-9d25-7f4901070c0f | Smith v. Lawson | 88 So. 2d 322 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 322 (1956)
Nell SMITH
v.
Elaine E. LAWSON.
Nell SMITH
v.
James M. LAWSON.
6 Div. 928, 928-A.
Supreme Court of Alabama.
June 14, 1956.
*323 Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.
Dan P. Barber and Harold M. Cook, Birmingham, for appellees.
SIMPSON, Justice.
On January 6, 1954, the automobiles driven by appellant and appellee, Mrs. Lawson, were involved in an intersectional collision. Appellees, suing separately, sought to recover for personal injuries, property damage and damages resulting to appellee Mr. Lawson on account of his wife's injuries. The suits were consolidated and tried together. From a judgment in favor of the plaintiffs, defendant has appealed.
Both Lawsons are appellees, but reference in the singular to appellee or plaintiff will be to Mrs. Lawson only since hers is the main suit and Mr. Lawson's being dependent or derivative as to right of recovery.
Mrs. Lawson, in her complaint, charged negligence and wanton conduct on the part of Mrs. Smith; Mr. Lawson charged only negligence. Reversible error is said to appear in the refusal of the trial court to give the affirmative charge with hypothesis in favor of the appellant as to each suit and each count. Appellant also contends that the trial court erred in overruling the motion for a new trial upon the ground that *324 the verdicts are contrary to the weight of the evidence.
For emphasis we refer to two oft cited rules of review. Where the affirmative charge is refused the defendant, the appellate court in reviewing the ruling must accept as true the evidence favorable to the plaintiff and look to the strongest tendencies of the testimony in his behalf. Godfrey v. Vinson, 1926, 215 Ala. 166, 110 So. 13; Henley v. Lollar, 1950, 35 Ala. App. 182, 44 So. 2d 791. And where the trial court refuses to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. W. T. Smith Lumber Co. v. McKenzie, 1952, 256 Ala. 496, 55 So. 2d 919. Keeping in view these rules we will give a brief recital of the pertinent evidence.
On a clear afternoon Mrs. Elaine Lawson, the appellee was driving her automobile in an easterly direction on 23rd Street in the City of Birmingham, and approached the intersection of that street with Avenue G. The intersection was not controlled by any stop sign or traffic signal. The neighborhood was a residential one. Appellee had been driving fifteen to twenty miles per hour, but at a point about fifty feet from the intersection she slowed down and came to a complete stop. The northwest corner of the intersection which was the corner inside the angle made by the two vehicles on their approach was vacant and appellee could see as far as half a block in this direction which was to her left on Avenue G. After appellee stopped, she looked in all directions, did not see a car coming and she started across the street. A collision then occurred when the front of appellant's car struck the left side of appellee's car while both cars were within the intersection; thereafter the two vehicles moved a distance of thirty-seven feet before coming to a stop.
Immediately prior to the collision the appellant, who lived two blocks from the intersection, was travelling in a southerly direction on Avenue G at a rate of speed of thirty to thirty-five miles per hour. Appellant saw appellee who was on appellant's right, approaching the intersection; appellant then looked to her left. It appears that appellee entered the intersection prior to the entrance of appellant. Appellant did not, however, slacken her speed, blow the horn or stop, nor did she apply her brakes at any time prior to the collision. While it is not clear at what point the appellant first saw appellee, it is clear that the appellee first approached the intersection. It further appears that the left side of appellee's car was eighteen feet from the west curb of Avenue G, a street thirty-two feet in width, at the point of the impact.
The pertinent traffic laws are: The maximum speed limit in this residential district is twenty-five miles per hour. Code of Alabama, 1940, Tit. 36, § 5; Birmingham City Code, § 1239(b)(6). Ordinarily, where two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left should yield the right of way to the vehicle on the right. Code of Alabama, 1940, Tit. 36, § 18(a); Birmingham City Code, § 1253(b). The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different street. Birmingham City Code, § 1253(a). Further, the driver of a vehicle should ordinarily drive upon the right half of the street. Code of Alabama, 1940, Tit. 36, § 9.
It is clear from the foregoing that the jury could have found that appellee had the "right of way." The appellant, therefore, was under a duty to "exercise a degree of care commensurate with the superior right of the other to observe the car of the other, its speed, position, and operation, and to wait until it has passed before attempting to cross the intersection." 2 Blashfield, Cyc. of Automobile Law and Practice, § 1025, p. 289. The driver is "presumed to know that a vehicle approaching a street intersection from his right has the right of way, and is under the duty of looking to the right for automobiles approaching from that direction.
*325 "* * * observation should be made at the first opportunity and at a point where observation will be reasonably efficient for, and conducive to, protection." 2 Blashfield, supra, §§ 1037, 1038, pp. 351, 352, 357. See also Echols v. Vinson, 1929, 220 Ala. 229, 124 So. 510; 3-4 Huddy, Automobile Law, §§ 154, 155; 5 Am.Jur., Automobiles, § 291; 60 C.J.S., Motor Vehicles, § 363.
We take cognizance, of course, of the fact that while the appellee may have been entitled to the right of way, this would not relieve her of the general duty of exercising due care not to injure others at the crossing. Ray v. Brannan, 1916, 196 Ala. 113, 72 So. 16; Allen v. Zickos, 1953, 37 Ala.App. 361, 68 So. 2d 841.
But viewing the evidence most favorable to the plaintiff, as is our duty, we are fully persuaded that there was no error in submitting to the jury the counts charging negligence and that the court ruled properly in refusing the affirmative charges in respect thereto.
It is also contended by appellant that the court improperly submitted to the jury the wanton count. We are unable to agree. There of course must be evidence to show or create a reasonable inference that the appellant had knowledge of appellee's peril and of the probable consequences of her conduct and with reckless disregard of such consequences she pursued that conduct. Knowledge, however, need not be shown by direct proof. It may be made to appear like any other fact by showing circumstances from which the fact of actual knowledge is a legitimate inference. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505; Allison Coal and Transfer Co. v. Davis, 221 Ala. 334, 129 So. 9; Duke v. Gaines, 224 Ala. 519, 140 So. 600.
Stated another way, a willful or intentional injury may not necessarily be involved in wantonness. It may consist of a failure to act by a person with knowledge that somebody is probably imperiled and the act or failure to act is in reckless disregard of the consequences. McNickle v. Stripling, 259 Ala. 576, 67 So. 2d 832.
The case of Godfrey v. Vinson, 215 Ala. 166, 169, 110 So. 13, 16, has a pertinent statement of the applicable rule:
If, therefore, the defendant, conscious of the plaintiff's position but ignoring the consequences, heedlessly or recklessly disregarded the peril in which the plaintiff was situated and proceeded at a rapid rate of speed and in violation of law into the intersection when the defendant should have anticipated such a condition, that conduct would amount to wantonness. We hold, therefore, that the evidence adduced made a jury question on this issue. McNickle case, supra; Godfrey case, supra; Wilhite v. Webb, 253 Ala. 606, 46 So. 2d 414; Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355; Fortson v. Hester, 252 Ala. 143, 39 So. 2d 649; Daniel v. Motes, 228 Ala. 454, 153 So. 727.
The refusal to give charges 9 and 15 requested by the defendant furnishes no predicate for a reversal in that the principle of law stated was fairly and substantially covered by the court's general oral charge and written charges 10 and 16 given at the request of the defendant. Code of Alabama, 1940, Tit. 7, § 273; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So. 2d 266; Hornaday v. First Nat. Bank of Birmingham, 259 Ala. 26, 65 So. 2d 678.
Assignments 14 and 43 are predicated on the plaintiff's attempt to show that at the intersection where the accident occurred there were children of school age It is always permissible to describe the locus in quo or scene of the accident and persons *326 who were present, but without considering the propriety of such evidence the responsive answer to such inquiry by the plaintiff came before the objection, and the objection, therefore, was not timely. Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543; Scott v. Parker, 216 Ala. 321, 113 So. 495; Bates v. Bank of Moulton, 226 Ala. 679, 148 So. 150.
Moreover, with respect to evidence about children at the crossing, the court later on in the trial, as we construe the record, ruled out all evidence with reference to schools and school children and confined its ruling to allowing the plaintiff to show: "Who was there at the scene of the accident, whether grown people and children." The inquiry being limited to the stated evidence was, of course, proper and all of the assignments of error dealing with this proposition are without merit.
Assignments of error 13 and 42 complain of the overruling of appellant's objection to certain remarks made by counsel for plaintiff in his opening statement to the jury. Reversible error is not made to appear for, while the court overruled the defendant's objection, it instructed the jury that the remarks were not evidence and unless supported by evidence which the court admitted, would not be before the jury. Alabama Fuel & Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782.
Appellant groups together in argument assignments of error 13, 14, 15, 16, 17 of Mrs. Lawson's case and 42, 43, 44, 46 and 47 of Mr. Lawson's case. Assignments 13, 14, 42 and 43 being without merit, the others will not be considered. Crescent Amusement Co. v. Knight, 263 Ala. 445, 82 So. 2d 919; Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449; Gilliland v. Dobbs, 234 Ala. 364, 174 So. 784.
On the basis of the foregoing considerations we are also constrained to hold that the court ruled properly in refusing the motion for a new trial. After a careful study of the record, we think the case was fairly tried without prejudicial error to the defendant.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur. | June 14, 1956 |
fcc66ac9-b392-41d0-b7a0-cae212d2c15b | Ex Parte Seymore | 89 So. 2d 83 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 83 (1956)
Ex parte Howard SEYMORE et al.
In re LINCOLN MILLS OF ALABAMA et al.
v.
TEXTILE WORKERS UNION OF AMERICA, CIO, LOCAL NO. 230 et al.
8 Div. 834.
Supreme Court of Alabama.
June 21, 1956.
Rehearing Denied August 2, 1956.
*84 Cooper, Mitch & Black, Birmingham, and Earl E. Cloud, Huntsville, for petitioner.
Bell, Morring & Richardson, Huntsville, for respondents.
STAKELY, Justice.
This case comes to this Court on a writ of certiorari to review a decree of the Circuit Court of Madison County, in Equity, which adjudged the petitioner, Howard Seymore, in contempt for violating the terms of a temporary restraining order which the Chief Justice of the Supreme Court of Alabama had ordered the Register of the Circuit Court of Madison County to issue.
*85 Complainant in a case styled Lincoln Mills of Alabama, a corp., et al., v. Textile Workers Union of America, CIO, Local No. 230, etc., in the Circuit Court of Madison County, in Equity, filed a verified petition requiring the respondents to show cause why they should not be adjudged guilty of contempt of court which contained, among other things, averments showing that the Chief Justice of the Supreme Court of Alabama, on the 27th day of July, 1955, entered an order with reference to persons engaged in maintaining a picket line and all demonstrations incident thereto at or about the premises of Lincoln Mills of Alabama, in Madison County, Alabama, restraining and enjoining them from assembling around and about the plant of the complainant, Lincoln Mills of Alabama, en masse and from maintaining more than three pickets at each entrance to the plant of said complainant; from standing fixed while engaged in the picketing of the plant of said Lincoln Mills of Alabama and requiring them to remain in motion while picketing said premises; from blocking or otherwise obstructing any entrance or exit to or from the premises of Lincoln Mills of Alabama and exercising any physical restraint, coercion, intimidation or force preventing free ingress and egress to and from the plant of the complainant Lincoln Mills of Alabama, and that said temporary restraining order was served upon said respondents on the 28th day of July, 1955.
It is further alleged that the respondents, Textile Workers Union of America, CIO, Local Number 230, an unincorporated labor organization, J. D. Brooks, individually, and as President of said Textile Workers Union of America, CIO, Local Number 230, and Howard Seymore have wilfully violated said temporary restraining order in that they seized hold of one Albert Tanner while he was crossing the plant premises of the complainant, Lincoln Mills of Alabama, on his way into said plant to work on August 2, 1955, and pushed and dragged him off said plant premises with physical violence, struck him about his right ear from behind, threw him to the ground, told him that they would not allow anyone to work in said plant and told him not to return there.
The temporary restraining order to which these charges refer is the temporary restraining order which the Chief Justice of this Court ordered the Register of the Circuit Court of Madison County to issue, returnable to the Circuit Court of Madison County. The order contained the following provisions:
*86 The evidence was heard ore tenus and without making a finding of facts the trial judge rendered a decree, holding that the respondent, Howard Seymore, violated the terms of the restraining order issued on July 27, 1955, holding him in contempt of court for such violation and as punishment sentenced him to be confined in the Madison County Jail for a period of three days. After holding the petitioner in contempt of court, later in the decree the petitioner was found guilty of contempt "in the particulars" as follows:
I. It appears to be conceded that this case is a case of constructive criminal contempt. As was said in Ex parte Hill, 229 Ala. 501, 158 So. 531, 532, "A criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience to the orders of the court." Furthermore a constructive contempt "consists of an act done, not in the presence of the court, but at a distance. * * *." Dangel on Contempt, § 5, p. 3. With this premise it is argued that petitioner Seymore was not afforded the due process assured him under both Section 6 of Article I of the Constitution of Alabama and the 14th Amendment to the Constitution of the United States.
In any type of proceeding where a person's liberty is at stake, the question of due process is fundamental. Johnson v. State, 242 Ala. 278, 5 So. 2d 632. This Court has stated the requirements of Constitutional due process in cases of constructive contempt in Hunter v. State, 251 Ala. 11, 37 So. 2d 276, 278, as follows: "Due process requires that the accused shall be advised of the charges, and have a reasonable opportunity to meet them. This includes the assistance of counsel, if requested, the right to call witnesses, to give testimony, relevant either to the issue of complete exculpation or extenuation of the offense and in mitigation of the penalty imposed." See also Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767; Ex parte Bankhead, 200 Ala. 102, 75 So. 478; Dangel on Contempt, p. 209, § 446.
The foregoing requirements as to due process were complied with. The respondent was advised by issuance of a citation or rule to him to appear and answer the charge. This citation or rule to show cause contained a full statement of charges. The order for citation was itself a written charge and the citation was pleading as well as notice. Hunter v. State, supra. Of course due process requires that the accused shall have reasonable opportunity to meet the charges that have been filed against him. In the case at bar not only was the petitioner served with a rule to show cause, but he, on his part, filed a plea of abatement as well as a response to the petition which admitted the allegations in the first paragraph of the bill but denied others. Petitioner was represented by counsel and called witnesses in his own behalf. Accordingly, there was no lack of due process in the proceeding against the petitioner. Authorities supra.
II. It is argued that where two persons are jointly, charged with commission of a crime and the proof shows the commission of the offense severally by each, there can be no conviction of either or both. The petition in the present instance was filed not only against Howard Seymore but also against Textile Workers Union of America, CIO, Local No. 230, an unincorporated labor organization, and also J. D. Brooks, as President of the aforesaid union. However, in this proceeding only one offense was charged. Johnson v. State, 44 *87 Ala. 414. There is no evidence in this case of the commission of several offenses by different defendants. On the contrary in the instant case the conduct with which the petitioner was charged was but part of a single continuing transaction. As was stated in the Johnson case, supra, "It was not necessary to prove both of the defendants guilty in order to convict one, but as they were jointly indicted, if the proof had shown only the commission, by each, of a separate offense, a verdict could not have been rendered against either or both." See McGehee v. State, 58 Ala. 360.
III. The complaint is made that there is no finding of fact by the trial court. In contempt matters it is consistently held that review of a conviction does not extend to questions of fact. The law is well expressed in Ex parte Wetzel, 243 Ala. 130, 8 So. 2d 824, 825, where this court said: "Upon petition for certiorari the Court does not review questions of fact, but only questions of law." We consider that there is no merit in the contention that the decree rendered by the court is erroneous for a failure to include a finding of facts. Ex parte Bankhead, 200 Ala. 102, 75 So. 478; Easton v. State, 39 Ala. 551.
IV. The position is taken that the court was in error in permitting complainant to cross-examine petitioner concerning acts of violence by other persons at other times. In each case the petitioner answered that he had no part in these other acts of violence and know nothing about them except by hearsay. Again, it is sufficient to point out that we are not considering the trial in the lower court as if it were on appeal here but only because it is before this court on a petition for writ of certiorari. Accordingly, rulings on the evidence are not before us since these rulings do not show error apparent on the record. Ex parte Bankhead, supra; Ex parte Dickens, 162 Ala. 272, 50 So. 218.
V. It is claimed that there was no charge of mass picketing in the petition and, therefore, the court had no right to find the petitioner guilty of mass picketing. Upon a consideration of the matter we are not willing to uphold this position. Examination of the decree of the court shows that Howard Seymore was found guilty of violating the terms of the restraining order issued by the Chief Justice of this Court and as punishment "for said contempt of said respondent, Howard Seymore is sentenced to be confined in the Madison County Jail at Huntsville, Alabama, in the custody of the Sheriff of said County for a period of three days * * *." It is true that later on in the decree the respondent is found guilty of contempt of the restraining order in certain particulars, but upon a consideration of the entire decree, we interpret the particulars, including mass picketing of which the petitioner is found guilty, to be nothing more than a statement of the aggravated circumstances making up and constituting the contempt of which Howard Seymore is found guilty. Under this interpretation of the decree, the decree is not erroneous.
It results that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | June 21, 1956 |
966628ad-898e-4ab1-adc5-ce14505a8a1b | Lawley v. State | 87 So. 2d 433 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 433 (1956)
Lankford LAWLEY
v.
STATE of Alabama.
7 Div. 266.
Supreme Court of Alabama.
May 10, 1956.
Wilton W. Rabren, Columbiana, for appellant.
John Patterson, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
Lankford Lawley was tried in the Circuit Court of Shelby County, Alabama, on an indictment containing two counts; one count charging rape, and the other charging carnal knowledge of, or abuse in the attempt to carnally know, Linda Sue Bass, a girl under the age of twelve years. He was found guilty and his punishment fixed at life imprisonment in the state penitentiary. The court entered a judgment accordingly, and it is from this judgment that the appeal is taken.
The appellant's principal contention is that reversible error was committed by the trial judge in instructing the jury as to the possibility of parole in case the defendant were convicted and sentenced to serve time in the penitentiary. The state admits error, but argues that the error was cured by subsequent remarks by the trial judge.
The transcript reveals that after the case had been submitted to the jury, and the jury had retired to the jury room, the *434 jury returned into open court and the following proceedings were had:
"By Juror: Will he always be eligible for parole?
"By the Court: It is possible with a life sentence if he makes a good record he might qualify for parole in 15 years, maybe, that is altogether up to the Board of Pardons. Gentlemen, if that information is helpful, that is as near as I can tell you about it.
"By Mr. Rabren: We except to the Court's remarks."
As a result of these remarks by the trial judge, the case must of necessity be reversed. In the recent case of McCray v. State, 261 Ala. 275, 74 So. 2d 491, this court held that in arriving at a proper sentence to be imposed on a defendant, the proportionate part thereof which probably or possibly might be deducted therefrom by the Parole Board was not a proper factor to be considered by the jury, and it is error for the court to instruct the jury as to the laws or customs governing the granting of paroles. In the light of that decision, the trial court in the case now before us unquestionably was in error in his remarks made in response to the juror's inquiry.
The withdrawal of the remarks by the court did not cure the error which had been committed. Where the withdrawal of a prejudicial remark by a judge is not sufficient to remove the impression which that remark has made upon the minds of the jurors, the defendant is entitled to have a new trial free from the influence of such prejudicial remarks. Mosley v. State, 241 Ala. 132, 1 So. 2d 593. As was said in Oliver v. State, 232 Ala. 5, 166 So. 615, 617:
In the present case, it is reasonable to assume that the jury wished to punish the defendant by having him serve a certain number of years in the penitentiary, *435 and in order to insure that he serve that length of time, the jury was planning to add to the length of the sentence in order to compensate for a parole before the entire sentence was served. In Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797, which is quoted in McCray v. State, supra, the court said that when confronted with an inquiry such as the one in this case, the trial judge should instruct the jury to impose such sentence as seemed to be just, with no regard to what might happen to the sentence in the future. The trial court in the instant case gave the damaging information to the jury. It is true that when objection was made to his remarks, he told the jury not to consider what he had said, and stated that he withdrew the remarks. We are of the opinion that the attempted remedial action was not sufficient. The information could not be eradicated from the minds of the jury. We cannot say that they considered it in arriving at their verdict, but they might have done so.
This situation is analogous to that discussed in Booth v. State, 22 Ala.App. 508, 117 So. 492, and Maryland Casualty Co. v. McCallum, 200 Ala. 154, 75 So. 902. In each of those cases, the court admitted illegal testimony and then later in the trial directed in an unemphatic manner that the testimony be excluded. The court held that where the effort to correct the error appears to be a mere formality and has no practical effect to correct the impression that has been created on the mind of the jury, the error cannot be said to be cured.
Having determined that a reversal must result from the above-stated error, we will not treat the other matters urged as error, for they are not likely to reoccur in another trial.
Reversed and remanded.
SIMPSON, GOODWYN and SPANN, JJ., concur. | May 10, 1956 |
75e2aa14-84d6-4508-a00d-627c6da6f83d | Stead v. Blue Cross-Blue Shield of Alabama | 310 So. 2d 469 | N/A | Alabama | Alabama Supreme Court | 310 So. 2d 469 (1975)
In re Eston H. STEAD, Jr.
v.
BLUE CROSS-BLUE SHIELD OF ALABAMA, a corporation.
Ex parte Eston H. Stead, Jr.
SC 977.
Supreme Court of Alabama.
March 6, 1975.
Rehearing Denied April 17, 1975.
*470 John H. Lavette, Birmingham, for petitioner.
J. Gusty Yearout, Birmingham, for respondent.
FAULKNER, Justice.
Petitioner filed his original complaint against Blue Cross-Blue Shield on February 21, 1972, claiming damages of $6,000 for breach of a policy of insurance issued to him on October 1, 1970. Blue Cross denied the claim because of pre-existing illness. It appears that petitioner had a history of drug addiction and schizophrenia. The policy contained a provision which required the policy to be in effect for a minimum of nine months for a condition existing prior to date of inception of the policy. After the policy was five months old, petitioner was hospitalized for treatment of drug addiction and schizophrenia.
After suit was filed, petitioner moved to Kentucky. Upon motion of petitioner the suit was continued a number of times during the period of two years following the filing of the suit. When the case was set for trial in February, 1974, petitioner asked leave of the court to amend his complaint. While the original complaint was short and simple, and sounding in contract, the amendment was sixteen pages long, encompassing inter alia fraud, misrepresentation, negligence, and wanton breach of contract. Damages for $125,000 were claimed. Blue Cross-Blue Shield opposed the amendment, and in August, 1974, Judge Deason denied the motion to amend.
Petitioner filed a writ of mandamus in this court to require the trial judge to allow the amendment. The petitioner says that the spirit of Rule 15, Alabama Rules of Procedure, requires that amendments be freely allowed. Petitioner avers that the remedy of appeal is not adequate in this case, because, if successful, it would require another trial on the fraud counts. He would suffer irreparable injury in such event.
Blue Cross-Blue Shield claims the averments in the amendment were sufficiently expressed in the original complaint. It claims any fraud or misrepresentation prior to the inception of the policy should not be allowed because (1) it would be unjust to require Blue Cross-Blue Shield to prepare for trial on acts which took place three years preceding any notice of such claim, and (2) petitioner would not be inconvenienced by having to try his case on breach of contract, and (3) the claim of fraud would be barred by the statute of limitations, since there was no newly discovered evidence which was not available when the original complaint was filed, and (4) the filing of the amendment was unduly delayed.
Both briefs in this cause make use of the recent case from this court, Ex Parte Miller, 292 Ala. 554, 297 So. 2d 802 (1974). In that case, the plaintiff wanted to amend his complaint to add two additional defendants *471 in an action for wrongful arrest and imprisonment. The amendment was offered six months after the original complaint was filed and, of course, involved no new issues at trial. Mr. Justice Coleman concluded that the remedy of appeal would not be adequate because it would put the plaintiff to the expense of a second trial, assuming he was successful on his appeal from a final judgment in the first trial. This would have amounted to an undue injury in an effort to simply amend a complaint. Mandamus was granted conditionally in Miller for that reason. However, in that opinion, it was pointed out that mandamus will not always be the proper reemdy for reviewing a disallowance of an amendment to pleadings:
Rule 15 and the Committee Comments have been aptly stated in Miller and there is no need to reiterate them in this opinion. We simply state here that if Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground. We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.
In looking at this case we must weigh the prejudice to the defendant Blue Cross against the possibility that the petitioner will have to go through a second trial. The evidence upon which the defense on the policy would rest consists of the policy itself and its language, medical testimony concerning pre-existing illness. In the case of fraud and misrepresentation, the defendant would have tried to find all the people who processed petitioner's application three years ago, or had anything to do with it.
The petitioner has had a long history of delays and continuances in this case. He proceeded on the original complaint for over two years. The petitioner states that:
A reading of that testimony does not indicate any evidence of fraud on the part of the company. In fact, according to the respondent's brief there was no evidence that Stead ever talked to anyone from Blue Cross before he took out the policy. This amendment was offered just before a third setting of trial. All of the fraud facts were available at the time the original complaint was filed or certainly within one year after it was filed. While the trial judge does not give reasons for overruling the motion, these things were no doubt considered in the exercise of his discretion.
Petitioner says that he would be irreparably injured by taking an appeal in this question and possibly be faced with a second trial. That alone is no reason, because that is a possibility every time appeal, rather than mandamus, is pursued. Justice Coleman indicates that it is contemplated that the majority of these cases will be decided by appeal, which involves the possibility of a second trial. This case is clearly distinguishable from Miller because there the plaintiff would have had to proceed on the identical theory in both trials, but against different defendants. Here, the second trial, if it came to pass, would involve a different theory and different *472 evidence, albeit the same parties would be involved. In light of these circumstances and this court's reluctance to use this writ save for those instances where there is no other adequate remedy, the rule nisi is quashed and the petition for writ of mandamus is denied.
Rule nisi quashed and petition for writ of mandamus denied.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur. | March 6, 1975 |
0f43ca1e-51c3-45a0-947d-044cab3ab005 | Employers Insurance Co. v. Rives | 87 So. 2d 658 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 658 (1956)
EMPLOYERS INSURANCE CO. OF ALA., Inc.
v.
James V RIVES.
6 Div. 14.
Supreme Court of Alabama.
May 24, 1956.
Burgin Hawkins, Birmingham, for petitioner.
Lange, Simpson, Robinson & Somerville, Birmingham, opposed.
MERRILL, Justice.
Petition of James V. Rives, doing business as Rives Construction Company, for certiorari to the Court of Appeals, to review and revise the judgment and decision of that Court in the case of Employers Insurance Co. of Ala., Inc., v. Rives, 87 So. 2d 646.
After remandment. See Ala., 87 So. 2d 653.
Writ denied.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 24, 1956 |
e61e9f74-0bbf-484e-a564-2b27579157ad | King v. Jackson | 87 So. 2d 623 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 623 (1956)
James E. KING, Jr.
v.
James E. JACKSON, Jr. (two cases).
6 Div. 952, 953.
Supreme Court of Alabama.
May 24, 1956.
*624 J. Edmund Odum and John T. Batten, Birmingham, for appellants.
Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.
LAWSON, Justice.
Around 5 o'clock on the afternoon of June 22, 1954, James E. King, Jr., a little boy four years of age, while crossing a public street in the city of Birmingham came in collision with a motor vehicle driven by James E. Jackson, Jr., and as a consequence "Jimmy" King received rather serious injuries.
The boy and his father each brought suit against Jackson. The boy sued by his father and next friend claiming damages for personal injuries. The father, James E. King, Sr., claimed damages for loss of services of his minor son and expenses incident to the treatment of his injuries. Both complaints charged the defendant with negligence. In both cases the defendant pleaded the general issue in short by consent in the usual form. The two cases were consolidated and tried together under the statute which authorizes circuit courts in counties of 300,000 or more population to consolidate pending cases of like nature. § 221, Title 7, Code 1940.
The trial resulted in separate verdicts in favor of the defendant. Separate judgments *625 followed the verdicts. Plaintiffs filed their motions for new trials, which were overruled, and they separately appeal to this court. The appeals were consolidated and submitted here on one record.
In brief filed here on behalf of appellants, it is argued that we should reverse the trial court because of its failure to grant new trials on the ground that the verdicts were contrary to the great weight of the evidence and on those grounds setting up newly discovered evidence. But the rulings of the trial court on the motions for new trials are not before us since there is no assignment of error challenging the action of the trial court in overruling and denying those motions. Apparently counsel for appellants assumes that the first five assignments of error, which the reporter has set out in the report of the case, are sufficient to present for our review the trial court's action on the motions for new trial. Those assignments of error are not adequate in that regard. The holdings of this court are to the effect that such assignments of error present nothing for our review since they do not allege error for failure to grant the motions for new trials nor do they allege error by the trial court in any respect. Life & Casualty Ins. Co. of Tenn. v. Womack, 228 Ala. 70, 151 So. 880; Central of Ga. Ry. Co. v. McDaniel, 262 Ala. 227, 78 So. 2d 290; Roan v. McCaleb, Ala.Sup., 84 So. 2d 358. The opinions in the two cases last cited do not show the assignments of error which we held to be inefficacious because they failed to refer to any ruling of the trial court. However, an examination of the original transcripts reveals that such assignments of error are in all material respects the same as the first five assignments of error in the instant case.
Although there is no assignment of error sufficient to present for our review the rulings of the trial court on the motions for new trials, we feel justified in saying that we have carefully examined all the evidence presented below and that we are clear to the conclusion that if proper assignments of error had been made, under the rule of our cases we would not hold that the trial court erred in overruling and denying the motions for new trials on the grounds which appellants here insist were well taken. Louisville & N. R. Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288, and cases cited.
The sixth assignment of error reads: "For that the Court required Plaintiffs-Appellants to proceed with the trial of the cases after a witness, Leon Hollis, subpoened and present in the Court room, left the Court without being discharged according to law and without notifying the Court or the Plaintiffs'-Appellants' Attorney."
The record before us shows that after the defendant rested his case the following colloquy took place between the trial court and Mr. Odum, counsel for the plaintiffs below:
"The Court. Where has he gone?
"Mr. Odum. I think he has gone home.
"The Court. How long will he be gone?
"The Court. Is he a lengthy witness?
"Mr. Odum. No, sir. I will ask him about five questions.
"The Court. Gentlemen, suppose we take a recess now until 1:15."
The foregoing is all that appears in this record which in any way relates to an absent witness. The record contains no ruling of the court adverse to the plaintiffs below in regard to a witness subpoenaed *626 by either party. According to the record, when court reconvened after the lunch recess counsel for the plaintiffs proceeded to argue the cases to the jury without making any request of the trial court that he be permitted to produce the witness identified in the sixth assignment of error as Leon Hollis. For aught that appears plaintiffs had completely abandoned any idea of calling the witness Hollis or any other witness. This court will not consider questions not raised and passed upon in the court below. Penn Mut. Life Ins. Co. v. State, 223 Ala. 332, 135 So. 346.
The giving of Charges 4 and 5 at the request of the defendant, the basis of Assignments of Error 7 and 8, did not constitute reversible error. These charges are "unavoidable accident" charges and although the better practice is to refuse charges of that type because of their tendency to confuse and mislead, it is not reversible error for such charges to be given. Nelson v. Lee, 249 Ala. 549, 32 So. 2d 22; Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 31 So. 2d 75; Tyler v. Drennen, 255 Ala. 377, 51 So. 2d 516.
In Assignment of Error 9 appellants complain of the trial court's action in giving the defendant's requested Charge 9. Unquestionably the statement contained in the charge is correct, but even if it be said that the charge is incomplete and misleading its giving would not work a reversal. Certain it is that we cannot say that the giving of Charge 9 probably injuriously affected substantial rights of the appellants. Dudley v. Alabama Utilities Service Co., 225 Ala. 531, 144 So. 5.
In the case of Bahakel v. Great Southern Trucking Co., supra, it was held that it was not reversible error to give a charge almost identical with Charge 12 given at the request of the defendant in these cases, which is made the basis of Assignment of Error No. 10. It was pointed out in the Bahakel case, supra, that such a charge is at most misleading and that the giving of it does not constitute reversible error.
We have considered all of the assignments of error and are clearly of the opinion that the judgments should be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
31d39075-7574-44ee-a1fc-ca9f214bd0cb | Zemczonek v. McElroy | 86 So. 2d 824 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 824 (1956)
Ben A. ZEMCZONEK
v.
Charles R. McELROY et al.
1 Div. 652.
Supreme Court of Alabama.
April 12, 1956.
*825 Johnston, McCall & Johnston, Mobile, for appellant.
McCorvey, Turner, Rogers, Johnstone & Adams, Mobile, for appellees.
LAWSON, Justice.
This suit was brought in the circuit court of Mobile County by Ben A. Zemczonek against Charles R. McElroy and Baggett Transportation Company, Inc., a corporation. The plaintiff sued under the homicide statute, § 119, Title 7, Code 1940, as father of Leonard V. Zemczonek, a minor, who lost his life as a result of a collision between Baggett's truck and an automobile owned *826 by McElroy, in which young Zemczonek was riding.
To the first count, which charges simple negligence, each defendant separately pleaded the general issue and contributory negligence and to the second count, which charges wanton conduct, each defendant pleaded the general issue.
Affirmative instructions as to each count of the complaint were requested separately by the defendants at the conclusion of the evidence. All such charges were denied by the trial court except that requested by the defendant Baggett Transportation Company as to the wanton count, which charge was given.
There was jury verdict in favor of both defendants. Judgment was in accord with the verdict. Plaintiff's motion for new trial having been overruled, he has appealed to this court.
The collision occurred at about 3:30 A. M. on the morning of April 6, 1952, on U. S. Highway 43 in Mobile County at a point where the road was straight and level, but visibility was affected by darkness and by a heavy rainfall. The vehicles involved were meeting each other. The Baggett truck was travelling in a northerly direction and the McElroy automobile was going south.
McElroy, Leonard V. Zemczonek and Peter Zelvis, Jr., enlisted men in the United States Navy, were riding in the McElroy automobile. As shown above, Leonard Zemczonek was killed as a result of the collision, McElroy was injured to such an extent that he remained unconscious for about thirteen days, and Zelvis suffered a broken leg and other injuries. King J. Pierson, the driver and only occupant of the Baggett truck, was apparently uninjured.
McElroy, Zemczonek and Zelvis were returning to their station at Barin Field, Foley, Alabama, from a visit to their homes in Ohio. Zelvis testified that before leaving for Ohio he and Zemczonek agreed that each of them would pay McElroy one-third of the expenses incurred in making the trip. On direct examination McElroy made the following statement in regard to the expenses of the trip: "My understanding was we would just split it three ways, being there were three of us." On cross-examination he indicated there was no agreement that he would be reimbursed by Zelvis and Zemczonek but that he merely assumed such to be the case.
The McElroy automobile left the vicinity of Cleveland, Ohio, around five o'clock on the morning of April 5, 1952. It was driven continuously up to the time of the collision except for short stops for fuel and food. There is sharp conflict in the evidence as to who was driving the McElroy car at the time of the collision. Zelvis testified positively that McElroy was driving at that time, but stated that he and Zemczonek had done some driving on the return trip. Two naval officers testified that McElroy had stated to them sometime subsequent to the accident that he was the driver. McElroy testified that Zelvis did not drive the car at all on the return trip but that he and Zemczonek alternated in doing the driving and stated that at the time of the collision his automobile was being driven by Zemczonek.
Highway Patrolman Staggers, who reached the scene a few minutes after the collision, testified that he found the Baggett truck on the west side of the highway approximately 135 feet from the point where he determined from physical evidence that the impact occurred, which point he stated was in the eastern lane of traffic, that is, the lane in which the Baggett truck was supposed to move. He found the automobile about twenty-seven feet from the point of impact on the western side of the highway.
Zelvis testified that he was riding in the back seat of the McElroy automobile at the time of the collision; that he had been asleep but had awakened just prior to the impact and saw "headlights coming towards us" but he would not say on which side of the road the collision occurred. Zelvis, as shown above, also testified that McElroy was driving the car at the time of the collision.
*827 McElroy testified that he was asleep on the front seat of his automobile next to the driver Zemczonek at the time the two vehicles collided and that he had no knowledge of how the accident occurred.
Pierson, Baggett's driver, testified that the truck was in good mechanical repair in all respects prior to the accident; that because of the bad weather conditions and traffic he was driving the truck in a "gear" which would not permit it to travel at a speed in excess of forty miles an hour and that the truck was moving in the eastern traffic lane as it approached the scene of the accident at a speed which he estimated at between thirty and thirty-five miles an hour, with the headlights dimmed; that he saw the headlights of the McElroy automobile for a distance equal to two or three city blocks and that the automobile was moving southwardly in the western lane of travel at a speed of between fifty and sixty miles an hour; that just prior to the collision the automobile turned sharply to its left so that it was headed in an easterly direction moving across the highway; that when he saw the automobile make the turn he applied the brakes to the truck and pulled it to the right to the extent that the right front wheels of the truck were off the eastern edge of the highway at the time of the impact; that the left side of the front part of the truck hit the right side of the automobile in front near the door handle; that as a result of the impact the automobile was knocked or pushed off the western side of the highway; that as a result of the collision the left fender of the truck was pushed down between the truck frame and the wheel to such an extent that the truck could not be steered and the air line to the left front wheel was broken, which resulted in the vehicle being without any brakes; that because of such damage the truck did not come to rest until it had travelled some 135 feet to a point on the western side of the highway.
R. C. Thompson testified in substance that shortly prior to the collision he was riding in his automobile in a southerly direction a few hundred yards behind the McElroy car, which was moving at a speed of around fifty miles an hour. He stated that he could see the lights of the McElroy car and that it appeared to be moving in its proper lane of travel, that is, on the western side of the road until "this truck come out across the road and I never saw the lights no moreI couldn't see after the truck got across the road." Mrs. Thompson's testimony was to the same effect.
The appellant contends that the trial court erred in giving the general affirmative charge in favor of the defendant Baggett Transportation Company as to the wanton count. We cannot agree. In our opinion the only testimony which tends to fix the responsibility for the collision on Baggett is that of the Thompsons and, at best, their testimony shows simple negligence on the part of Baggett's driver. Because of the testimony of the Thompsons we are of the opinion that the trial court did not err in refusing the general affirmative charge requested by Baggett as to the negligence count. However, in our opinion the evidence does not support an inference of wanton conduct, that is, that Baggett's driver, with reckless indifference of the consequences consciously and intentionally did some wrongful act or omitted some duty which produced the death of plaintiff's minor son. These essential elements of wantonness were at best left to conjecture, pure and simple. Smith v. Roland, 243 Ala. 400, 10 So. 2d 367; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505.
Given Charge 19 predicates a finding of no liability for either defendant on the hypothesis that "plaintiff's intestate" was guilty of negligence proximately contributing to his injury and death. We have said that it is reversible error to give such a charge where there is a wanton count which has been properly submitted to the jury, since contributory negligence is no defense to such a charge. Crocker v. Lee, 261 Ala. 439, 74 So. 2d 429; Sims v. Birmingham Electric Co., 238 Ala. 83, 189 So. 547. As previously shown, the trial court permitted the wanton count to go to the jury as to the defendant McElroy.
A charge on contributory negligence in an action of this kind is erroneous *828 which fails to hypothesize that the negligence asserted as a bar to recovery by the plaintiff proximately contributed to his injury. Such negligence in order to defeat recovery under a plea of contributory negligence must be a concurring proximate cause of the injury and not merely a remote or antecedent cause or condition. Terry v. Nelms, 256 Ala. 291, 54 So. 2d 282, and cases cited. Given Charge 20 violates this rule in omitting the word "proximately" and the holding of this court is that when a charge is so fatally omissive, its giving, where there is a jury question presented, is error to reverse. Crocker v. Lee, supra.
To avert a reversal because of the giving of Charges 19 and 20, it is argued in brief filed here on behalf of appellees that the defendant McElroy, the only defendant to whom these charges have direct application, was entitled to the general affirmative charge as to both counts of the complaint and that, therefore, the giving of the charges was error without injury. Birmingham Ice & Cold Storage Co. v. Alley, 247 Ala. 503, 25 So. 2d 37; Lambert v. Southern Ry. Co., 214 Ala. 438, 108 So. 255; Beavers v. Southern Ry. Co., 212 Ala. 600, 103 So. 887.
As to the first count of the complaint, we are clear to the conclusion that the evidence which we have heretofore set out, when viewed in the light most favorable to the plaintiff, presented a question for jury determination as to whether or not the defendant McElroy was guilty of negligence which proximately contributed to or caused the death of plaintiff's minor son. Although there was a conflict in the evidence as to who was driving the McElroy car at the time of the collision, we are not here concerned with the weight of the evidence. It was amply sufficient to justify a finding that McElroy was the driver at the time the two vehicles collided.
Under our recent case of Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244, and the cases there cited and quoted from, the evidence presented a question for jury decision as to whether Zemczonek was a paying passenger so as to authorize a recovery on a count charging simple negligence in view of our guest statute. § 95, Title 36, Code 1940. We do not think that this question was one of law for the court in this particular case for the reason that although Zelvis was positive that such an arrangement had been made prior to the time the trip to Ohio was taken, and although McElroy so indicated on his direct examination, nevertheless the fact remains that on cross examination McElroy apparently sought to limit or restrict his testimony on direct examination to considerable extent. The jury had the right to determine which of the statements made by McElroy it would believe. Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355.
We hold, therefore, that the defendant McElroy was not entitled to the general affirmative charge as to Count 1 and that hence the trial court erred in giving at his request written Charge 20.
We are of the opinion that under the evidence in this case, when viewed in the light most favorable to the plaintiff, a question for the jury was presented as to whether or not McElroy was guilty of wanton conduct. As shown above, there was evidence going to show that he was the driver of his automobile. The fact that he was driving at a speed of nearly sixty miles an hour in the darkness in a driving rain, without having had any sleep for nearly twenty-four hours except such as he might have had while one of the other occupants of the car drove, was sufficient, we think, to make a jury question under the wanton count.
We hold, therefore, that the trial court erred in giving Charge 19.
Given Charge 21 could have been refused without error on the ground that it tends to give undue emphasis to one phase of the evidence. Birmingham Electric Co. v. Perkins, 249 Ala. 426, 31 So. 2d 640. However, the giving of the charge in and of itself would not be sufficient to require a reversal of the cause.
Under the pleading and evidence in this case, the jury could have found in *829 favor of one of the defendants and against the other. F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534; § 139, Title 7, Code 1940. Hence, the appellant contends that the trial court erred to a reversal in giving written Charge 13, contending that under that charge the jury was instructed that before the plaintiff could recover he had to prove to the reasonable satisfaction of the jury the liability of both defendants. We think this charge might well have been refused on the ground that it has a tendency to mislead, but again we do not feel that we would be justified in reversing the cause merely for the giving of this charge, for the plaintiff could have requested an explanatory instruction.
We have held above that the trial court erred to a reversal in the giving of written Charges 19 and 20. Charge 19 was not injurious in so far as Baggett was concerned for the reason that the general affirmative charge as to the wanton count had already been given in its favor and Charge 20 was framed to affect only the defendant McElroy.
We have held that when a decision on a case as to one appellee is not affected by the decision as to the other, a joint judgment may be reversed as to one appellee and affirmed as to the other. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223; Sovereign Camp, W. O. W. v. Davis, 242 Ala. 235, 5 So. 2d 480. However, we are of the opinion that in the instant case the ends of justice will be best subserved by the reversal and vacation of the judgment in its entirety so that the cause may be retried. Luquire Ins. Co. v. Parker, 241 Ala. 621, 4 So. 2d 259; St. Paul Fire & Marine Ins. Co. v. Johnson, 256 Ala. 690, 57 So. 2d 80.
The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
SIMPSON, GOODWYN and MERRILL, JJ., concur. | April 12, 1956 |
c6ae4272-1dc3-4b04-ad66-36554cbf6275 | Dorroh v. Jefferson County | 87 So. 2d 619 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 619 (1956)
B. H. DORROH et ux.
v.
JEFFERSON COUNTY.
6 Div. 759.
Supreme Court of Alabama.
May 24, 1956.
Wm. H. Ellis, Birmingham, for appellants.
Maurice F. Bishop, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This cause originated by the application for an order of condemnation filed in the Probate Court of Jefferson County, Alabama, in which Jefferson County sought to acquire the property of the appellants for the purpose of widening the Birmingham-Atlanta highway. The application was granted by the probate court, whereupon commissioners were appointed to assess the damages and compensation to which appellants were entitled. Following the commissioners' report, and the payment of the award into court, an order of condemnation was entered by the probate court. The appellants then filed an appeal to the circuit court from the decree of condemnation of the probate court, under Title 19, § 17, Code of Alabama 1940, and demanded a trial by a jury. A trial was had, which resulted in a verdict in favor of the appellants in the amount of $1,250, and a judgment entered accordingly. Appellants filed a timely motion for a new trial, and after hearing arguments on the motion, the trial judge overruled it, and the property owners appealed.
Appellants' most seriously argued contention on this appeal is that the trial court erred in overruling the motion for new trial on the ground that the verdict of the jury is inadequate. Appellants contend that the *620 verdict is so inadequate as to indicate bias, prejudice, corruption, or other improper motives against them. In support of this contention, appellants submitted as part of the motion for new trial an affidavit by the appellant, B. H. Dorroh, that shortly before the trial in the circuit court, a newspaper article had appeared in the local paper giving an account of a real estate swindle perpetrated by one with the same surname as the appellant, and that it is reasonable to believe that the jury could, and probably did, assume that the swindler and appellant were one and the same person. There was no evidence that any of the jury had read or been influenced by the newspaper article.
Where it is not shown that some juror saw or read the newspaper article, a new trial is properly refused on the ground that the verdict was the result of prejudice created by that article. Caldwell v. State, 203 Ala. 412, 84 So. 272.
Appellants' evidence tended to show that appellants' home is situated on the tract of land, a part of which was sought to be condemned; that it is located on a hill above the old highway, and it was shown that the widening of the highway would cause the right of way to be moved considerably closer to appellants' house and would leave the house situated above a cut ranging to as much as 40 feet deep. Appellants' witness testified that the land to be taken contained two good building lots of a value of $4,950. On the other hand, an expert witness for the appellee testified to facts indicating that it would not be feasible to use the land for that purpose. Appellants' expert witness, Andrews, testified that the difference in market value before and after the condemnation and the construction of the road would be about $7,500. The appellant, B. H. Dorroh, testified that the value of the land to be taken was $6,250, and the damages to his driveway would amount to $750. Both of these witnesses testified to possible uses to which the property could be put, and to the fact that appellants were receiving pay for the rental of part of the land upon which a large advertising signboard had been erected.
The expert witness who testified for the appellee set the damages to appellants' property at $1,000, and testified to facts upon which he based that figure. His qualifications as a real estate appraiser were equally as good as those of the appellant, B. H. Dorroh, and appellants' witness, Andrews.
Our authorities governing the review of the rulings of trial courts on rulings on motions for new trial on the ground of inadequacy of the damages are collected in Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, 449, in which this court said:
"We adhere to these views.
In determining the adequacy of the damages, the verdict itself in connection with the facts as disclosed by the record usually furnishes the determining data. Sturdivant v. Crawford, 240 Ala. 383, 199 So. 537; Alabama Gas Co. v. Jones, 244 Ala. 413, 13 So. 2d 873.
Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545, 549, 7 A.L.R.2d 773, is particularly applicable to the case now before us. In that case, it was said:
In the case before us, as in Thornton v. City of Birmingham, supra, there is a great variance between the contentions of the parties as to the damages sustained as a result of the condemnation, and there are experts testifying for both sides who are equally worthy of belief. The amount of damages assessed by the jury is considerably below the amount claimed by the appellants, and it is somewhat higher than the lowest figure set by the witness for the appellee. Under these conditions, it is impossible *622 to say that the verdict is not supported by the evidence, or that it is contrary to the preponderance of the evidence. The action of the trial court in denying the motion for a new trial on the ground of the inadequacy of the damages must be upheld under our decisions.
The trial court properly sustained an objection to a question propounded by appellants' counsel which called for appellant, B. H. Dorroh, to give his opinion as to the amount of damages his property would sustain by the proposed road construction. Under our decisions, a witness cannot give his opinion as to the amount of damage. The witness must testify to facts upon which the jury can base a determination of the amount of the damages. Atlanta & Birmingham Air Line Ry. Co. v. Brown, 158 Ala. 607, 48 So. 73; Bragan v. Birmingham Ry., Light & Power Co., 163 Ala. 93, 51 So. 30; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So. 2d 795, 9 A.L.R.2d 974.
The statement made by the appellant, B. H. Dorroh, while testifying, that, "They [noises and fumes from the highway] get to me, but not as bad as I expect them to later," was properly excluded on motion of appellee's counsel as being not responsive to the question asked him. Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89; Atlanta & St. Andrews Bay Ry. Co. v. Fowler, 192 Ala. 373, 68 So. 283; Louisville & N. R. Co. v. Manning, 255 Ala. 43, 50 So. 2d 153.
Appellants contend that the trial court erred in refusing to admit into evidence a building permit offered by appellants. The record reveals that the following action took place at the time the alleged error was committed:
"The Court: What is this date?
"Mr. Ellis: May 13, 1949.
"The Court: I will sustain the objection.
"Mr. Ellis: I believe that's all."
The record reveals that there was no ruling by the trial court on the admissibility of the building permit. The objection on which the court ruled appears to be a tardy objection to the question asked the witness and not one to the introduction of the building permit. It is elementary that in absence of an adverse ruling to the party complaining, there is nothing for this court to review.
Appellants' assignment of error number 6 complains of the trial court's action in sustaining appellee's objection to a question asked the expert witness who testified in favor of the appellee. That question was so patently improper as to require no discussion here. It is sufficient to say that the trial court did not err in his ruling.
Having carefully considered each assignment of error which is argued and having found no error, we conclude that the judgment of the trial court is due to be affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
28147aaf-5974-49be-8022-842e5ae33471 | Sandlin v. Goldstein | 87 So. 2d 861 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 861 (1956)
Ida B. SANDLIN
v.
Abe GOLDSTEIN et al., as Members of the Planning Commission.
8 Div. 844.
Supreme Court of Alabama.
May 24, 1956.
John W. Green, Jr., Huntsville, for appellant.
Jeff D. Smith, Smith, Johnston & Butler, Huntsville, for appellees.
STAKELY, Justice.
This case involves a question of procedure of the Planning Commission of the City of Huntsville, Alabama. On July 7, 1955, Ida B. Sandlin (appellant) filed a petition for mandamus in the Circuit Court of Madison County, against Abe Goldstein, Louis Tuminello, J. E. Mitchell, Jr., W. J. Price, W. A. Blevins, Tom Jones, Jr., R. B. Searcy, W. R. Dickson and John Blue, III, as members of the Planning Commission for the City of Huntsville, Alabama. An alternative writ of mandamus was issued by the circuit judge returnable July 26, 1955. The defendants demurred to the petition. The court sustained the demurrer and when the petitioner declined to plead further, the Court dismissed the petition. From this ruling the present appeal comes to this court.
The allegations of the petition in substance show that the plaintiff is a resident citizen of Madison County, Alabama, and that Abe Goldstein and the other defendants, who have been heretofore named, are resident citizens of Madison County, Alabama, and constitute the Planning Commission of the City of Huntsville, Alabama. On March 3, 1955, the petitioner presented a plat of a proposed subdivision to the defendants as the Planning Commission of the City of Huntsville for its approval or disapproval. On April 7, 1955, a public hearing was held on the plat. For more than thirty days after the submission of the aforesaid plat to the Commission for its approval or disapproval, the defendants as such commissioners have neither approved or disapproved said plat. On June 2, 1955, the plaintiff demanded of the defendants as such Planning Commission a certificate of approval of the plat and the defendants as such Planning Commission have refused or failed to grant the certificate *862 of approval of the plat submitted to the Planning Commission as aforesaid.
The following appears in § 799, Title 37, Code of 1940: "The planning commission shall approve or disapprove a plat within thirty days after the submission thereof to it; otherwise such plat shall be deemed to have been approved, and a certificate to that effect shall be issued by the commission on demand; * * *." It is the position of the appellant that under the foregoing provisions of the statute she is entitled on the basis of the allegations of her petition to a writ of mandamus requiring the Commission to approve the plat filed by her with the Planning Commission and to the issuance of a certificate to that effect.
On the other hand the Commission contends that the foregoing provisions of § 799 should be construed not only with the other provisions of § 799 but in connection with the provisions of § 798 and the other sections making up the statutes relating to subdivision control as set out in subdivision 2. In other words the Commission contends that the legislature intended that the Planning Commission should formulate a plan with the general purpose of accomplishing a coordinated, adjusted and harmonious development of the municipality in accordance with present and future needs which could include the various matters set forth in the statute such as a proper arrangement of streets in relation to other existing or planned streets, etc. It will be noted that in § 798 it is provided that "the planning commission shall adopt regulations governing the subdivision of land within its jurisdiction." The petition does not set forth the rules and regulations, if any, adopted by the Planning Commission in connection with the subdivision of land within its jurisdiction. To sum up the situation, the Commission insists that unless all of these matters are set forth in the petition for mandamus, the court should not coerce the defendants into issuing a certificate of approval.
Upon a consideration of the matter, however, we feel that the language of § 799 which we have quoted above, is clear and explicit and that the legislature intended to provide the protection set forth in the act to the one filing the plat. In fact the position which we here take is amply supported by the authorities which have considered this statute. In the authorities which we cite the statutes involved are substantially similar to the statute under consideration in this case. In Vol. I of Zoning Law and Practice (2nd Ed.), p. 272, by Yokley, the author had this to say about the language contained in § 799, which is here under consideration:
In State ex rel. Wollett v. Oestreicher, Ohio Com.Pl., 121 N.E.2d 454, 456, the court said:
We point out that in the case here cited as well as in the case at bar it is shown that the Commission, if it did not consider that the plan was in accordance with regulations governing the subdivision of the land, had the right within the thirty-day period to disapprove the plat. Under the allegations of the present petition there was no disapproval of the plat by the Planning Commission. See also Levin v. Cocks, Sup., 141 N.Y.S.2d 595.
*863 The result is that the present petition contains allegations showing a clear legal right in the petitioner to coerce the official act demanded and an imperative duty to be performed by the defendants which they have refused to do and further there does not appear to be any other adequate remedy open to the petitioner. City of Decatur v. Mohns, 235 Ala. 640, 180 So. 297; Marcet v. Board of Plumbers, etc., 249 Ala. 48, 29 So. 2d 333.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | May 24, 1956 |
68ce9a24-7401-491e-8226-e7d00d4ad968 | Stidham v. Stidham | 86 So. 2d 294 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 294 (1956)
Beulah STIDHAM
v.
Forble Lee STIDHAM.
8 Div. 830.
Supreme Court of Alabama.
March 22, 1956.
Potts & Young, Florence, for appellant.
Bradshaw, Barnett & Haltom, Geo. E. Barnett, Jr., Florence, for appellee.
MERRILL, Justice.
Appellee sued appellant for a divorce, alleging cruelty. The trial court, after taking the testimony ore tenus, granted the divorce on that ground, awarded alimony to appellant and required appellee to pay an attorneys' fee for appellant under her cross bill. The only question presented on the merits is the sufficiency of the evidence to support the decree of divorce.
We have carefully considered the evidence in consultation and are of the opinion that it is adequate, if believed, to justify the decree granting the divorce. What was said in McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602, 603, is applicable here:
*295 Appellee filed a motion to dismiss the appeal because of the inadequacy of the single assignment of error, but we do not consider the motion. The failure to assign any errors or an inadequate assignment of errors requires the affirmance of the judgment below. Nichols v. Hardegree, 202 Ala. 132, 79 So. 598; Wetzel v. Hobbs, 249 Ala. 434, 31 So. 2d 639.
It is our conclusion that the cause should be and is affirmed on the merits.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | March 22, 1956 |
df5eb77e-a72f-4106-a1be-09d1c196001f | Grubb v. Teale | 90 So. 2d 727 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 727 (1956)
W. I. GRUBB, Jr., et al.
v.
L. H. TEALE.
6 Div. 618.
Supreme Court of Alabama.
November 15, 1956.
*728 Burr, McKamy, Moore & Tate, Maurice F. Bishop and Mark L. Taliaferro, Birmingham, for appellants.
Parsons, Wheeler & Rose, Birmingham, for appellee.
GOODWYN, Justice.
W. I. Grubb, Jr., an appellant here and a respondent below, is the owner of lot 9 of G. M. Matthews' Addition to Huffman, according to the map thereof which was filed for record in the office of the Judge of Probate of Jefferson County on June 15, 1923, and is recorded therein in Map Book 13, at page 36. According to said map this lot is in the shape of a parallelogram, 59.65 feet by 150 feet, with the long side on the north being shown as abutting a 30-foot "County Road", generally known as Roebuck Drive. It appears that this road was paved about 1928 with a strip of brick pavement 18 to 20 feet wide. A survey of lot 9 made in 1951 revealed that part of the pavement encroached on the north side of said lot as platted. In an effort to settle the conflicting interests thus made apparent, the following agreement was entered into by Mr. Grubb and Jefferson County, viz.:
"This Agreement made and entered into by and between W. I. Grubb, Jr., Party of the First Part, and Jefferson County, Alabama, Party of the Second Part;
"Whereas, W. I. Grubb, Jr., Party of the First Part, is the owner of Lot 9, according to G. M. Matthews' Addition to Huffman, according to map thereof recorded in the office of the Judge of Probate of Jefferson County, Alabama, in Map Book 13, page 36; and,
"Whereas, Along the northerly boundary of said Lot 9 there is a thirty (30) foot county road, shown by said map hereinabove referred to, said road being commonly known as and referred to as Roebuck Drive; and,
"Whereas, Said Roebuck Drive has been paved and the paved portion of said Roebuck Drive extends three (3) feet over the northerly boundary of said Lot 9; and,
"Whereas, Jefferson County, Alabama, Party of the Second Part, claims to have a thirty (30) foot right-of-way, which said right-of-way is measured fifteen (15) feet from the center line of the public road known as Roebuck Drive, which would, in effect, extend as the county's right-of-way over an additional five (5) feet of the northerly boundary of said Lot 9, said paved portion of Roebuck drive being twenty (20) feet in width; and under such a state of facts, the house as commenced by W. I. Grubb, Jr., would be in violation of the zoning regulations of Jefferson County, Alabama; and,
"Whereas, W. I. Grubb, Jr., claims that the County has already encroached three (3) feet on and over the northerly boundary of said Lot 9; and,
"Whereas, The parties hereto are desirous of settling said controversy;
"Now, Therefore, Said parties mutually agree that in consideration of the stipulations and agreements herein contained, that the southern boundary of Roebuck Drive, at the point where it lies along the northerly boundary of said Lot 9, shall be the southern edge of the pavement as it now exists, and without in any manner extending the right-of-way for the road beyond this point, W. I. Grubb, Jr., does by these presents grant, bargain, sell and convey, for the consideration of the establishing of said boundary, an easement to Jefferson County, Alabama, for drainage purposes, five (5) feet in width, said easement to be parallel with said Roebuck Drive and to have its northerly boundary as the edge of the present pavement of Roebuck Drive at this place and to extend from the edge of said paved portion of Roebuck Drive in a southerly direction for five (5) feet.
L. H. Teale, appellee here and complainant below, is the owner of about 6 acres of land with a frontage of 552 feet along the north side of Roebuck Drive, a portion of which is directly opposite the Grubb property. Teale, claiming that the above agreement, in effect, is an unauthorized vacation of a portion of a public road to his special damage, filed a bill of complaint in the Circuit Court of Jefferson County, in Equity, against Grubb and Jefferson County seeking cancellation of the agreement. The bill alleges that said agreement was entered into for Grubb's "private benefit and gain"; that "Roebuck Drive has been a public road in Jefferson County, Alabama, in its present location, for more than 40 years next preceding the filing of this bill of complaint, and has during all of this period been used by the public continually and uninterruptedly for travel and convenience; that the public generally for more than 40 years has used and had the actual, peaceable and adverse use of said 30-foot county road, and no one to his (complainant's) knowledge and until the agreement above referred to was entered into, claimed any part of said road; that Jefferson County has recognized the existence of said 30-foot county road known as Roebuck Drive during all of these years"; that the effect of the agreement is to give to Grubb "a 5-foot strip of land off the south side of said county road, and which runs the length of lot 9 adjoining Roebuck Drive, and that said agreement results in taking away from the complainant his vested right of ingress and egress on the full width of Roebuck Drive, and deprives him of his portion of the light, air, view and access along said road"; "that the County Commission * * * was without authority in deeding or giving the above strip of property to the other respondent, and that said purported conveyance was without consideration and void, and that such instrument, if allowed to stand, would cause irreparable injury to complainant and would cause a stricture or bottleneck in said Roebuck Drive in front of his said property, and would cause it to be greatly depreciated in value". In answering the bill, Grubb takes the position that the agreement is not a "vacation or attempted vacation of any part of any highway or right-of-way belonging to Jefferson County" but "an agreement settling the boundaries" between his property and the right-of-way owned by the County; that no part of Roebuck Drive was conveyed to him; and that there is "a clearly dedicated thirty foot right-of-way for a road which was dedicated by the recording of the map of Matthews' Addition to Huffman, and which thirty foot right-of-way lay entirely north of the northern boundary line of said lot 9".
As we see it, the determinative question is one of fact as to the actual location, on the ground, of the 30-foot roadway, that is, whether, as contended by Grubb, the north boundary of lot 9 as platted is in fact the south line of Roebuck Drive as that roadway has been established by public user for the prescriptive period of twenty years or more, or whether, as contended by Teale, a part of Roebuck Drive as established by prescription extends into and over the northern portion of lot 9 south of the south edge of the pavement. On this point the evidence is not without some conflict. However, there is substantial evidence supporting the trial court's finding, based on testimony given ore tenus, that "regardless of differences in maps or surveys there has been a well-established road some thirty (30) feet wide used by the public and *730 maintained by the County at the location in question for more than fifty (50) years"; that "there is no evidence of any substantial change in the location of the road"; and that the attempted conveyance of "a part of this road to an individual for his own benefit * * * is detrimental to the public and complainant appears to have suffered a special injury".
It is the settled rule of review that the finding of the trial court, when testimony is taken orally before it, has the effect of a jury's verdict and will not be disturbed on appeal unless plainly and palpably wrong. Hinson v. Byrd, 259 Ala. 459, 66 So. 2d 736; Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135; Haden by Boykin, 259 Ala. 504, 66 So. 2d 708; Huggins v. Turner, 258 Ala. 7, 60 So. 2d 909. The question being fairly debatable and neither conclusively proved nor disproved, "this court, under our settled rule, will not substitute its own judgment for that of the trier of facts at nisi prius, who heard the witnesses testify and who is charged with the primary duty and responsibility of determining the matter." Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29, 29 So. 2d 298, 302. There being ample evidence to support the trial court's findings, we perceive no basis, in the light of the stated rule of review, to disturb them.
We find no merit in appellants' insistence that relief should be denied because the agreement has for its purpose the "settling of boundaries" and not the "vacation or attempted vacation" of a public roadway. The obvious effect of the agreement, if valid and operative, is to vacate a portion of Roebuck Drive by establishing the southern edge of the pavement as the south boundary of said road.
It is not altogether clear whether the trial court undertook, by its decree, to define the precise location of the south boundary of the roadway, that is, exactly how far south of the pavement the right-of-way extends. Mention is made in the decree of "a well-established road some thirty (30) feet wide used by the public and maintained by the county at the location in question for more than fifty (50) years" and that "there is no evidence of any substantial change in the location of the road." And, there is evidence that the roadway's boundaries have been considered by the county authorities as being 15 feet north and south of the center line of the pavement. But we do not think there is sufficient evidence to support a definite fixing, on the ground, of the south boundary of the right of way, although there is ample evidence to support a finding that some area south of the south edge of the pavement has been used for road purposes for the prescriptive period so as to establish it as a part of the public roadway. The purpose of the bill is to cancel the agreement between Grubb and the county because it is, if valid, an effectual vacation of a part of a public road. It is not an effort to precisely define the roadway's boundaries. We think the evidence clearly establishes a user by the public for roadway purposes of an unpaved area south of the south edge of the pavement so as to create a prescriptive right to continue such use. Since the agreement operates as a vacation of such area, whatever might be its exact extent, it was not essential that the south boundary line be definitely established in order to justify the granting of relief.
Although the evidence does not show that the unpaved area south of the pavement has been used principally for actual travel, as has the paved portion, it is clearly established that the adjoining unpaved area has been used for the prescriptive period, and particularly since the pavement was placed in 1928, as a shoulder for the roadway and also for drainage purposes. It seems to us that essential incidents to the establishment of any improved country roadway are the shoulders and drainage ditches on either side of the portion normally used for travel. Where it is shown that such area has been used for the prescriptive period it becomes, by virtue *731 of such user, an integral part of the roadway as effectually as if a part of the traveled way itself. Such areas are essential to the proper care and maintenance of the part actually used for travel and are for roadway purposes the same as the part actually used for travel. The general rule is thus stated in 25 Am.Jur., Highways, § 36, pp. 359-360:
From 39 C.J.S., Highways, § 20, pp. 938-939, is the following statement of the rule:
Appellants urge on us that if the agreement is held to be a vacation or attempted vacation of a portion of the public roadway, such vacation or attempted vacation has been validated by virtue of the provisions of Code 1940, Tit. 56, § 18. That section has no application to this case. The obvious purpose of that statute (originally enacted in 1923, Act No. 15, appvd. Feb. 5, 1923, Gen.Acts 1923, p. 10) was to validate changes in location or vacations or attempted vacations which had theretofore taken place. It has no application to changes and vacations occurring, as in the instant case, after the law went into effect.
We here note that the establishment of a roadway by prescription gives to the public an easement only and that the owner is not divested of the fee. Purvis v. Busey, 260 Ala. 373, 377, 71 So. 2d 18.
The decree appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur. | November 15, 1956 |
9f75196a-8faa-4ba3-bb2d-30033e1b4d5c | West v. Camp | 89 So. 2d 170 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 170 (1956)
Burlon WEST
v.
Jesse Monroe CAMP et al.
8 Div. 865.
Supreme Court of Alabama.
July 26, 1956.
Roy D. McCord and L. D. Martin, Gadsden, for appellant.
Scruggs & Scruggs, Guntersville, for appellees.
SIMPSON, Justice.
The appeal in this case must be dismissed. There is no organization of the court appearing in the record as required by Rule 24 of the Supreme Court (old Rule 26), Code 1940, Tit. 7, Appendix. This matter is jurisdictional and the court must take notice of it ex mero motu. Reynolds v. Henson, Ala., 87 So. 2d 856; McPherson v. Stallworth, 262 Ala. 367, 78 So. 2d 924; Garrard v. State ex rel. Waid, 260 Ala. 486, 71 So. 2d 59.
Appeal dismissed.
LIVINGSTON, C. J., and MERRILL and SPANN, JJ., concur. | July 26, 1956 |
01e5ccdb-9b58-4dfe-91a6-43ae2265b8b4 | Hammac v. Skinner | 89 So. 2d 70 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 70 (1956)
Roy HAMMAC
v.
Bert SKINNER et al.
2 Div. 365.
Supreme Court of Alabama.
May 24, 1956.
Rehearing Denied August 2, 1956.
Pitts & Pitts, Selma, for appellant.
Pettus, Fuller, Reeves & Stewart, Selma, for appellees.
PER CURIAM.
On this appeal the important question is whether the bill in equity shows a right of complainants on the rescission of a transaction to recover expenses which they incurred in preparing to utilize the property purchased.
Complainants, to whom we will refer as appellees, and respondent to whom we will refer as appellant, made an agreement, exhibit A to the bill of complaint, which is as follows:
The $10,000, above mentioned, was paid. It was later agreed for appellee to pay the sum of $28,000 cash and execute a note for $22,000. Appellees also executed another note in the sum of $63,561.75. Those notes were executed on May 5, 1953. To secure the note for $63,561.75 appellees, on May 18, 1953, executed a mortgage on a half interest in certain property. In July 1953 appellant advised appellees that he was unable to get good title to the tract referred to as the "first tract", and could not consummate the trade, but that he had located a "second tract" which he could purchase for their joint interest; that the purchase price would be $2,000 more than the purchase price of the "first tract", which he would pay and that appellees would be obligated to pay the same amount as for the "first tract," $123,561.75 for a half interest and to be paid in the same manner, that is, $38,000 cash already paid, a promissory note for $22,000, and a note for $63,561.75 secured by a mortgage on a half interest in the "second tract". Appellees agreed to the arrangement to purchase the "second tract," and they executed a new note dated July 11, 1953, and a mortgage of the same date on a half interest in the "second tract". The former note and mortgage, dated May 5, 1953 and May 18, 1953, respectively, were returned to appellees. Appellant still holds the note and mortgage of July 11, 1953. Appellant then delivered to appellees a full warranty deed dated July 11, 1953, purporting to convey to appellees a half interest in the "second tract".
Paragraphs 10 and 11 of the amended bill of complaint are as follows:
Paragraphs 9 and 16 of the bill of complaint are as follows:
Paragraph 14 of the bill is as follows:
The prayer seeks the relief specified in paragraphs 14 and 16, supra.
On the facts alleged, it is clear that appellees are entitled to a rescission and cancellation of the transaction with a restoration to each of what he is entitled to recover as an incident to such result, all of which is available in this suit in equity. We do not understand that appellant controverts that result upon the basis of the facts alleged. The bill is well drawn and contains all the essential elements of fraud in inducing the execution of the contract by appellees, their right to rescind and cancel it on that ground and that they duly elected to do so. Calloway v. McElroy, 3 Ala. 406; Bullard Shoals Mining Co. v. Spencer, 208 Ala. 663, 95 So. 1; Wood v. Master Schools, 221 Ala. 645, 130 So. 178; Bullen v. Trulove, 224 Ala. 677, 141 So. 671. The bill as a whole is not subject to any ground of demurrer insisted on.
The chief contention is whether having elected to rescind and cancel the transaction for fraud in its inducement, appellees can recover the amount of the expense incurred by one of them in going to the Republic of Panama and shipping his household effects there (and return) in preparation of using the land as contemplated and agreed should be done by appellees.
In this connection it is well settled that in a suit for rescission and cancellation general damages for deceit or fraud may not be recovered by the defrauded party, but there are claims which may be recovered such as waste and other claims necessary to a restoration of the status quo, Tollett v. Montgomery Real Estate & Ins. Co., 238 Ala. 617, 193 So. 127, including expenses incident to the contract, 17 C.J.S., Contracts, § 442, p. 926, note 73; Sidney Stevens Implement Co. v. Hintze, 92 Utah 264, 67 P.2d 632, 111 A.L.R. 331; Sylvania Industrial *74 Corporation v. Lilienfeld's Estate, 4 Cir., 132 F.2d 887,145 A.L.R. 612, Judge Parker; Equitable Life Assur. Soc. of United States v. Kushman, 276 N.Y. 178, 11 N.E.2d 719. But there is a difference of opinion whether the nature of the expense here involved is one which is incidental to the contract and recoverable, or is an item of damage which is solely recoverable in an action of deceit.
The ruling of the trial court was favorable to appellees by the decree overruling the demurrer to that aspect of the bill as well as to the bill as a whole. We may pause here to observe that usually the claim of an item of damage in a suit in equity does not render it subject to demurrer though the claim is not shown to be recoverable. This is not a suit for damages, but only a claim of restoration to a status. This claim is controlled by a state of facts applicable to it alone. The parties have treated that feature of the bill as an aspect. We are not disposed to take a different view to reach an easy conclusion in this suit. We will therefore treat the merits of the claim.
Appellees rely on a principle which is thus stated in Black on Rescission and Cancellation, in section 695, page 1653, as follows:
The above authority cites the case of Holland v. Western Bank & Trust Co., 56 Tex.Civ.App. 324, 118 S.W. 218. We find that case fully supports the text and we quote from it as follows:
On the other hand, there are cases cited by appellant which seem to conflict and reach a different result. In the case of Carpenter v. Mason, 181 Wis. 114,193 N.W. 973, 974, there was no agreement to cover such an expense above referred to. We quote as follows:
And in Stanford v. Smith, 163 Ark. 583, 260 S.W. 435, 438, there was no agreement shown that the purchaser who resided in Arkansas would go to Texas and reside on the land; nor what use was intended to be made of the land. The court observed:
There is a difference between the instant case and the cases relied upon by appellant. It is that the allegations of the bill, which we have quoted, make it plain that, as an incident to the agreement and a feature of it, the land was to be jointly owned by appellees and appellant and that one of the appellees was to move his family to the Republic of Panama and conduct the logging operations on said land for their mutual benefit, and that this expense was incurred pursuant to that agreement and before the fraud was discovered. So that, the expense was incurred as contemplated by the parties.
The Texas case, supra, and Black on Rescission and Cancellation, supra, do not make it necessary that the special damages be incurred pursuant to the intent of the parties to be recoverable on rescission. They make the distinction that general damages are not recoverable on rescission but that certain special damages are recoverable. We do not find it necessary at this time to take a position on that distinction for in *76 this case the right to claim the amount of such expense is controlled by an agreement and the intent of the parties. In the Wisconsin case, supra, it is observed that there was no such agreement.
All we decide here is that we think the bill sufficiently shows a right to have restored to appellees the expense they incurred as alleged in paragraphs 9 and 16 of the bill of complaint and because of the facts there alleged. The name given to such claim in the bill is not controlling.
The decree of the trial court should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.
Counsel for appellant are very urgent that we failed to give consideration to his contention as to paragraph 12 of the bill of complaint. That paragraph is as follows:
It is insisted that as a plea of the law of a foreign nation it is subject to the objection that it states a conclusion of the pleader and not the substance of the law itself as a fact. The form of the allegations may not be strictly up to the requirements of good pleading as interpreted in Equitable Life Assur. Soc. of United States v. Brandt, 240 Ala. 260, 198 So. 595, 134 A.L.R. 555, in not alleging what the law on the subject is in the Republic of Panama, but only what the effect of it is upon complainants as applied to the transaction involved. Counsel insist that as a feature of the charge of fraud its insufficiency renders the bill subject to demurrer as to that aspect of it charging fraud in procuring the contract. Properly considered the bill has but one aspect, to annul and vacate a transaction for fraud in its procurement. Other features of the bill are supplementary to that. We agree that if the allegations of paragraph 12 of the bill are essential to the charge of fraud, they ought to be well pleaded and that a failure in that respect would subject the bill to appropriate demurrer. We did not discuss that question because we thought, and still think, that the charge of fraud and its effect upon the transaction was complete without paragraph 12 as set out. All the elements of fraudulently procuring the contract from complainants are set out in the bill by the facts on which the charge is based, and they are sufficient and well pleaded without paragraph 12. "Sometimes it is necessary at law to prove all the allegations of a count to sustain the cause of action as laid. Mazer v. Brown, 259 Ala. 449(14), 66 So. 2d 561. * * * But that is not to be confused with the principle well settled that in equity it is not necessary to accurately prove every detail of averment as alleged provided that proof is made of such averments as are essential to the relief sought". Bobo v. City of Florence, 260 Ala. 239, 69 So. 2d 463, 465, citing Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So. 2d 770; Ellis v. Womack, 247 Ala. 254, 23 So. 2d 859. The older cases are cited in the above authorities. Since it is not necessary to prove the law of the Republic of Panama in the respect here material, it is *77 not necessary for it to be alleged in the bill according to the requirements for pleading such a law. The bill is not subject to the demurrer interposed in that respect.
On the original submission we treated the chief controversy as we understood it and as fully as we thought necessary and feel like it was correctly disposed of.
The application for rehearing should be overruled.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
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