id
stringlengths 36
36
| title
stringlengths 1
243k
| citation
stringlengths 3
718
| docket_number
stringlengths 1
304
⌀ | state
stringclasses 24
values | issuer
stringclasses 24
values | document
stringlengths 0
1.94M
| date
stringlengths 3
18
|
|---|---|---|---|---|---|---|---|
d852ee5b-0411-4d7d-aaa6-75359c79fafc | Cater v. Coxwell | 479 So. 2d 1181 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1181 (1985)
Lula Dell CATER, individually and in her capacity as Executrix of the Estate of John Thomas Knight, Deceased,
v.
J. Milton COXWELL, Jr., in his capacity as Administrator of the Estate of Ruth C. Knight, Deceased.
83-953.
Supreme Court of Alabama.
September 27, 1985.
As Corrected on Denial of Rehearing November 1, 1985.
Joe T. Thompson, Jr., and Edward T. Hines, of Garretts, Thompson & Hines, Brewton, for appellant.
John M. Coxwell, Monroeville, for appellee.
ALMON, Justice.
This case presents the question of whether the right to claim the homestead allowance and exempt property provided by the recently enacted Alabama probate code survives the death of the second spouse. In other words, if a surviving spouse dies without claiming a homestead allowance or exempt property out of the pre-deceased spouse's estate, may the surviving spouse's estate make these claims?
In 1982, the Alabama Legislature enacted a probate code adapted from portions of the Uniform Probate Code. 1982 Ala. Acts 578, No. 82-399; Code 1975, § 43-8-1 et seq. This Act repealed the homestead and personal property exemptions found at Code 1975, §§ 6-10-60 through -66, and enacted the "Exempt Property and Allowances" article now found at Code 1975, §§ 43-8-110 through -114. Act No. 82-399 took effect on January 1, 1983.
John Thomas Knight died testate on February 19, 1983, leaving a widow, Ruth C. Knight, and four children: James R. Knight, Blanche Kidd, May Lambrecht, and Lula Dell Cater. Ruth C. Knight died intestate on May 5, 1983.
Mr. Knight's will was filed for probate on June 19, 1983, and admitted to probate on June 29, 1983. The will named Lula Dell Cater as executrix, and the probate court granted her letters testamentary. The will gave a life estate in the house and furnishings to Mrs. Knight with a remainder over, plus the residue of the estate, to Mrs. Cater. It recited that Knight was "not unmindful of the fact I have other children" but was leaving everything to his one daughter "in partial payment for the many services which she has rendered me during my life time."
*1182 Mrs. Knight's administrator petitioned for and secured the removal of the administration of Mr. Knight's estate to circuit court. In that court, he filed a petition for an award of homstead allowance, exempt property, and family allowance. The circuit court held that, under the express terms of § 43-8-112, Mrs. Knight's right to family allowance terminated upon her death. The court further held, however, that Mrs. Knight's estate was due to be granted a homestead allowance and exempt property, because these rights became vested when she survived Mr. Knight by five days. Section 43-8-43 provides that "[a]ny person who fails to survive the decedent by five days is deemed to have predeceased the decedent for purposes of homestead allowance, the exempt property and intestate succession...."
Section 43-8-110, the "Homestead allowance," reads:
Section 43-8-111, "Exempt property," reads, in pertinent part:
The circuit court found that the value of Mrs. Knight's constitutional right of homestead (Art. X, § 206, Const. of 1901) was $500 and reduced the homestead allowance to $5500. This plus the exempt property amount equalled $9000. The court found this amount to exceed the value of the estate and awarded Mr. Knight's entire estate to Mrs. Knight's estate.
A holding that the homestead allowance and exempt property vest automatically in the surviving spouse would clearly thwart the decedent's intent in this and the majority of cases. Such a holding must therefore *1183 rest either on the allowance and exemption code sections themselves or on the policy of simplifying and clarifying the law.
The Supreme Court of Montana has interpreted essentially identical Montana homestead allowance and exempt property statutes adapted from the Uniform Probate Code. In Matter of the Estate of Merkel, ___ Mont. ___, 618 P.2d 872 (1980), the court held that the surviving spouse's estate may be awarded a homestead allowance where the surviving spouse claimed it but died before it was awarded. The court treated the question as one of whether the interests created were fee interests or life estates. It observed that "[t]erming these interests life estates would appear to undercut one of the expressed purposes of the UPC, that is `to simplify ... the law concerning the affairs of decedents.'" Id., ___ Mont. at ___, 618 P.2d at 877.
The Montana court further observed that the family allowance provision states that the interest terminates at the surviving spouse's death and thus the family allowance does not qualify for the marital deduction pertinent to federal estate taxes. Cf. Code 1975, § 43-8-112. The court reasoned that the omission of such a termination provision in the homestead allowance and exempt property provisions implied that they were meant to qualify for the marital deduction, and thus, under 26 U.S.C. § 2056 (1954), could not be terminable interests.
In Matter of the Estate of Heiser, ___ Mont. ___, 672 P.2d 1124 (1983), the Montana court held that the surviving spouse's estate is entitled to the homestead allowance even if the surviving spouse did not claim these interests prior to death. The court relied on Merkel in holding that the interest vested upon survival by five days. It further stated, "We find no statutory, claim-filing requirement for the homestead allowance to vest, and decline to create such a requirement." Heiser, ___ Mont. at ___, 672 P.2d at 1125.
Appellant Cater states that Montana is the only jurisdiction which has considered this question, and our research has shown nothing to the contrary.[1] We nevertheless find compelling reasons to reach the opposite result, and nothing in the Montana court's reasoning persuades us otherwise.
The legislature created the homestead allowance and the exempt property provision to preserve part of the decedent's estate from creditors and to protect the surviving spouse and minor children.[2] This purpose is evident from the priority given to these rights over all other claims against the estate. If the second spouse dies shortly after the first, there is no justification based on supporting the survivor for transferring property from the estate of the first to die to that of the second. Certainly if the first spouse has left a will, the probate code favors effecting the intent expressed therein.
We disagree with the Montana court's position that the issue is whether the homestead allowance and exempt property are life estates. Once these interests are awarded to the surviving spouse, they are fee interests. The question is whether the surviving spouse must claim them or whether they vest automatically upon the second spouse's surviving the first by five days.
The law regarding the prior homestead and personal property exemptions provides little guidance because the interests created were so different. The former homestead exemption normally provided a life estate in the family homestead to the widow and minor children. If the husband's estate included no other real property, the homestead did not exceed value and acreage limits, and there were no minor children, the widow could claim a fee interest *1184 in the homestead. Nix v. McCoy, 280 Ala. 516, 195 So. 2d 893 (1967). This right to obtain a fee was held to be personal and not to survive to her estate. Walker v. Hayes, 248 Ala. 492, 28 So. 2d 413 (1946). The current homestead allowance makes no reference to real property.
Regarding the Montana court's rationales for vesting the homestead allowance and property exemption, we see no advantage, either in simplicity or in the marital deduction, from insisting that these property rights vest even if the surviving spouse expressed no interest in them during his or her lifetime. The latter point is easily disposed of. Because of the 1981 amendments to the federal estate tax, the unified credit, 26 U.S.C. § 2010, is so large and the tax rate, § 2001, so low that no estate less than $500,000 is even tentatively liable for estate taxes. Thus, the marital deduction only applies to estates so large that the homestead allowance and the personal property exemption are insignificant.
Nor do we see any gain in simplicity in vesting the first $9,500 (less the value of the constitutional homestead exemption) of a married person's estate in a surviving spouse. Suppose a wife has $7,000 in property and writes a will leaving it to her sister. If she dies first, this property would vest automatically in her husband, regardless of his separate estate. He might renounce it, if he lives long enough to make such a choice, or the couple might provide for such an event in an ante- or post-nuptial agreement, as provided for in § 43-8-72. In neither case is simplicity gained. We do not see the advantage of requiring every married couple in this state to execute post-nuptial agreements in order to write effective wills.
Another hypothetical situation illustrates the lack of simplicity inherent in vesting these interests. Both the homestead allowance and the exempt property sections state that the rights granted therein shall be in addition to property the spouse receives by intestate succession or by will "unless otherwise provided." What would be the result of holding that these rights vest upon survival by five days if the first spouse dies testate leaving certain property to the surviving spouse unless that spouse claims homestead or exempt property? Would the vesting of the statutory interests automatically deprive the surviving spouse of the devised[3] property? Or would one say that the vesting by operation of law does not defeat such a provision so long as the living spouse does not claim homestead allowance or exempt property?
Under the latter construction, the surviving spouse's estate might receive more than the spouse would if he or she lived. The estate might attempt to keep the property under the will and to claim the vested homestead allowance and exempt property. If the strained construction were continued, allowing the estate to keep the devised property only so long as it did not claim its vested rights, the goals of simplicity and clarity would be widely missed in the very attempt to reach them in spite of the decedent's intent and the purpose of homestead and exemption.
The above hypothetical presents the classic case for which prior law allowed a widow to dissent and claim dower. If her husband left her a modest amount unless she claimed her life estate in the family homestead, in which case she took nothing under the will, the widow could simply dissent and claim both dower and homestead. Even now, a surviving spouse can claim an elective share of the deceased spouse's estate, taking up to one-third of the estate. § 43-8-70. The electing spouse is also entitled to homestead allowance, exempt property, and family allowance. § 43-8-74.[4] The right of election, however, is personal, and can be exercised only during the surviving spouse's lifetime. § 43-8-71.
*1185 Thus, a surviving spouse is amply protected by the probate code's exemptions, allowances, and right of election. The surviving spouse is presented with various choices, and we see no need for or merit in requiring the homestead allowance and exempt property to vest in the surviving spouse in all cases.
For the foregoing reasons, the judgment of the circuit court, insofar as it holds that Mrs. Knight's estate may claim a homestead allowance and exempt personal property, is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, SHORES, and HOUSTON, JJ., concur.
[1] Estate of Allen, 488 Pa. 415, 412 A.2d 833 (1980), interpreting a non-UPC law, held that a widow waived the family exemption by not claiming it during her lifetime.
[2] If there is no surviving spouse, adult children are entitled to the exempt property. Although an exemption in favor of such children does not protect them as dependents, it does allow them to choose some items of their parents' property even if the estate is insolvent.
[3] The definition of "devise" in § 43-8-1(5) includes both real and personal property.
[4] But cf. UPC § 2-206(b), providing that election requires a choice between taking under the will and claiming allowances if the will expressly so provides. The Alabama Legislature omitted this provision when it enacted § 43-8-74. | November 1, 1985 |
05f0ff07-efb5-42b7-8e92-2f816f2ce4c3 | American Furniture Galleries v. McWane, Inc. | 477 So. 2d 369 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 369 (1985)
AMERICAN FURNITURE GALLERIES, INC., and Appalachian Insurance Company, a corporation
v.
McWANE, INC., a corporation.
83-1151.
Supreme Court of Alabama.
October 4, 1985.
*370 Philip H. Butler of Robison & Belser, Montgomery, for appellants.
Harry Cole of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Cathy S. Wright and James L. Goyer, III, of Maynard, Cooper, Frierson & Gale, and Edward O. Conerly, Birmingham, and Philip S. Gidiere, Jr., Montgomery, for appellee.
MADDOX, Justice.
This case arises out of the explosion on February 11, 1979, at American Furniture Galleries, Inc., a furniture factory in Montgomery.[1] American Furniture and its insurer, Appalachian Insurance Company, filed suit against: (1) Alabama Gas Corporation, alleging negligence and wantonness in the installation and maintenance of a cast iron gas main; (2) McWane, Inc., the manufacturer of the cast iron gas main, alleging liability under the Alabama Extended Manufacturer's Liability Doctrine; and (3) Jehle Brothers, Inc., alleging negligence and wantonness in the construction of a terra cotta drain which adjoined a storm catch-basin adjacent to the cast iron gas main. After a trial on the merits, the jury returned a verdict in favor of defendant McWane, Inc., but against defendants Alabama Gas Corporation and Jehle Brothers, in the amount of $100,000.00.
Plaintiffs appeal from the judgment based on the jury verdict in favor of defendant McWane, Inc. Plaintiffs originally appealed from the judgment based on the verdict as to both McWane and Alabama Gas, but dismissed the appeal as to Alabama Gas after plaintiffs and Alabama Gas reached a settlement. We affirm the trial court's judgment in favor of defendant McWane.
On appeal, plaintiffs allege that the trial court committed reversible error in: (1) submitting the defense of contributory negligence to the jury; (2) refusing to instruct the jury on "business interruption" damages; and (3) charging the jury that damages must be "definite" and "certain." We address only the issue relating to the contributory negligence question, and include only those facts necessary to the resolution of that issue.
Plaintiffs' theory of recovery against defendants was that the explosion and subsequent fire were caused by a buildup of natural gas in the factory. Plaintiffs attributed the gas buildup to a leakage of gas from a fractured gas main manufactured by defendant McWane and installed by defendant Alabama Gas. The gas main was two feet underground, next to the factory, but within the City of Montgomery's right-of-way. As to the cause of the gas main's fracture, plaintiffs' evidence showed that: (1) defendant Alabama Gas installed the gas main adjacent to a brick and mortar storm catch-basin, and that the gas main was in a condition of stress against the catch-basin; (2) defendant McWane manufactured the gas main with less than minimally safe wall thickness; and (3) a terra cotta drain pipe, manufactured by defendant Jehle Brothers and connected to the storm catch-basin, had a hole in it, which allowed water to leak down to the gas main and wash away its supporting soil.
At trial, defendants introduced evidence to prove that they were not negligent, but also, that even if they were negligent, plaintiffs were barred from recovery because of plaintiff American Furniture's contributory negligence. On appeal, plaintiffs argue that the trial court erred in submitting the contributory negligence defense to the jury because defendants failed to prove, even with a scintilla of evidence, that plaintiff American Furniture contributed to causing the explosion and fire.
Defendant McWane points to the following evidence of record in support of its argument that there was "substantial testimony from which the jury could infer that American Furniture Galleries was contributorily negligent in improperly storing or using flammable materials on its premises." (Emphasis added.)
Mr. Thomas Hawkins, district manager of the Montgomery district for Alabama Gas, testified:
Mr. Hawkins conceded, however, that he saw nothing to indicate that the explosion and fire were actually caused by any of the materials plaintiff American Furniture used in its business:
*372 Mr. Oscar Emfinger, maintenance and furniture production supervisor for American Furniture, testified that lacquer, banana oil, and thinners were used in the factory, and that a by-product of furniture production is sawdust, which can cause fire. He also testified that filler rags outside the building had caused a fire at the factory about a year before this explosion and fire.
Mr. Tom Wallace, a mechanical engineer and district supervisor of the Montgomery district for Alabama Gas, testified as follows:
Wallace also testified that an explosion originating in the factory could have produced vibrations which fractured the pipe. Two other witnesses testified that the pipe could have been fractured by the explosion.
Upon raising the affirmative defense of contributory negligence, defendant has the burden of proving that (1) plaintiff failed to use due care for his own, or as in the instant case, his property's, safety, and (2) that such a failure was a proximate cause of the injury. Hatton v. Chem-Haulers, Inc., 393 So. 2d 950, 954 (Ala.1980); United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596, 598 (Ala.1977). In Alabama, a defendant must produce at least a scintilla of evidence of plaintiff's lack of due care in order to be entitled to the submission of a contributory negligence defense to the jury. Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119, 124 (Ala.1978); Dean v. Mayes, 274 Ala. 88, 91, 145 So. 2d 439, 442 (1962).
Did defendant McWane carry its burden of proof and produce at least a scintilla of evidence as to plaintiff American Furniture's lack of due care? We think so. As the evidence of record set out above indicates, there was testimony by witnesses that plaintiff American Furniture's factory contained volatile substances, that these substances could have caused an explosion, and that the explosion could have fractured the gas main; therefore, there was at least a scintilla of evidence of contributory negligence on the part of American Furniture, and the trial court did not err in submitting the contributory negligence defense to the jury.
This Court has held that the issue of contributory negligence cannot be determined as a matter of law if different inferences and conclusions may reasonably be drawn from the evidence. Cooper v. Peturis, 384 So. 2d 1087, 1088 (Ala.1980); Teele v. Gravlee, 294 Ala. 126, 128, 313 So. 2d 169, 170 (1975). Furthermore, this Court has ruled that the issue of contributory negligence must go to the jury if the evidence or the reasonable inferences arising therefrom furnish as much as a gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of *373 contributory negligence, and this defense must be submitted to the jury unless the evidence is entirely free of doubt of adverse inference. Dean v. Mayes, supra, 274 Ala. at 91, 145 So. 2d at 442 (1962).
Even in the cases cited by American Furniture, this Court held that the trial court properly submitted the issue of contributory negligence to the jury. See, Hatton v. Chem-Haulers, Inc., supra; Elba Wood Products, Inc., supra. In both of these cases, the Court stated that the question whether the plaintiff is guilty of contributory negligence is a matter of law only when the facts are such that all reasonable people must draw the same conclusion, and the question is for the jury when, under all the facts and circumstances, reasonable minds may fairly differ upon the question of the plaintiff's negligence. Hatton, supra, at 954; Elba Wood Products, Inc., supra, at 124. Thus, the trial court in this case acted properly in submitting the issue of contributory negligence to the jury because there was, at a minimum, a gleam, glimmer, or scintilla of evidence supporting such a claim.
The trial court denied American Furniture's motion for a new trial. It is well established that the granting or denial of a motion for a new trial rests within the sound discretion of the trial court. Cox v. Cox, 431 So. 2d 527, 529 (Ala.1983). The trial court's exercise of discretion carries with it a presumption of correctness which will not be disturbed unless there is a clear abuse of some legal right and the record plainly and palpably shows that the trial court was in error. Hill v. Cherry, 379 So. 2d 590, 592 (Ala.1980). A strong presumption favors the jury's verdict and the trial court's refusal to grant a new trial. Matthews Brothers Construction Co. v. Lopez, 434 So. 2d 1369, 1375 (Ala.1983).
Defendant McWane argues further that even if the submission of the contributory negligence defense to the jury was error, it was harmless error.
We have held that one alleging error on appeal "must not only establish error but also must show that he was probably prejudiced by the error." Watson v. McGee, 348 So. 2d 461, 463 (Ala.1977). The burden is squarely on the appellant to establish that the error was probably prejudicial. Bucyrus-Erie Co. v. Von Haden, 416 So. 2d 699 (Ala.1982).
In view of all the evidence of record, and the fact that the jury returned a general verdict against defendants Alabama Gas and Jehle Brothers, but found in favor of McWane, we could also affirm the judgment, as McWane suggests, by applying the principle set forth in Rule 45, Alabama Rules of Civil Procedure. In short, even assuming the submission of the contributory negligence defense was error, it was harmless, because we can easily reconcile the jury's finding of liability on the part of Alabama Gas and Jehle Brothers, and the finding of no liability on the part of McWane, because McWane was charged only with selling a defective piece of pipe. The fact that McWane neither installed the pipe nor maintained it, and the fact that the pipe had been installed for a substantial period of time, was evidence from which the jury could have found that the explosion was the fault of Alabama Gas and Jehle Brothersnot McWane.
Based on the foregoing, we hold that the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES and HOUSTON, JJ.
BEATTY and ADAMS, JJ., not sitting.
[1] The action arising out of this explosion has been tried twice to completion. After the first full trial, the trial court granted plaintiffs' motion for a new trial. Defendants appealed. We affirmed. Alabama Gas Corp. v. American Furniture Galleries, Inc., 439 So. 2d 33 (Ala.1983). Accordingly, the action was retried, and now it is again before us on appeal. | October 4, 1985 |
ef0e9aa4-ee85-4b26-9563-b1c2e73083c6 | Jacksonville State Bank v. Barnwell | 481 So. 2d 863 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 863 (1985)
JACKSONVILLE STATE BANK
v.
Andre BARNWELL.
JACKSONVILLE STATE BANK
v.
Nicholas T. TREVINO.
83-559, 83-560.
Supreme Court of Alabama.
November 8, 1985.
*864 Grant A. Paris, Jacksonville, for appellant.
H. Darden Williams, of Williams, Williams, Norton & Long, and Ralph Brooks, of Brooks & Brooks, Anniston, for appellee Andre Barnwell.
H. Merrill Vardaman, of Vardaman & Vardaman, for appellee Nicholas I. Trevino.
HOUSTON, Justice.
Jacksonville State Bank appeals from two adverse judgments entered on jury verdicts in these two actions, which were consolidated for trial,[1] arising out of claims for breach of an indemnity agreement, fraud, and invasion of privacy. We affirm.
The tendencies of the evidence are as follows: Andre Barnwell went to the Jacksonville State Bank (hereinafter the bank) on October 30, 1981, and entered into an installment loan agreement with the bank. This loan was secured by two automobiles, a 1966 Chrysler Newport and 1973 Buick Century.
On April 23, 1982, Barnwell again went to the bank in order to secure the purchase money for a mobile home. Consequently, a second loan agreement was executed by the bank and Barnwell executed a second promissory note. Barnwell testified that a bank vice president and loan officer, Mike Harper, handed him some paperwork and stated, "[T]his pays off the cars." The automobiles owned by Barnwell were not pledged as security for the second loan, only the mobile home.
On September 8, 1982, Barnwell's mobile home was destroyed by fire. The home was not covered by casualty insurance.
The fire was reported to Harper the following day. After an examination of the loan file at the bank, Barnwell was told that the only collateral on the note was the mobile home and that the bank demanded *865 immediate payment in full. Barnwell failed to make any further payments on the note.
Thereafter, the evidence indicates, the bank began a series of harassing telephone calls to Barnwell, at his home and at his place of employment, ranging from twenty-eight to thirty-five in number. Barnwell was reprimanded by his work supervisor about the calls. After he requested that the bank not call him at work, the calls to his work place continued. Threats of garnishment were made, and Barnwell's mother was called by the bank.
On October 20, 1982, Mr. Noonan, a bank officer, contacted Nicholas Trevino, and requested that he repossess Barnwell's automobiles for the bank. Trevino first went to the bank, where he met with both Noonan and Harper, regarding Barnwell's automobiles. Harper and Noonan examined the Barnwell installment note and thereafter Harper told Noonan, "[Y]ou can't repossess that car, there's something wrong with the contract."
After the bank officer realized the bank had no security interest in the automobiles, someone altered the Barnwell installment note to add the automobiles as security.
Approximately three days after the original discussion with Harper and Noonan, Trevino was called back to the bank by Harper for purposes of getting the Barnwell automobiles. There, Trevino met with Noonan and was given a copy of the altered note and an indemnity agreement and was told, "[W]ell, you can pick up the car now."
Trevino went to Barnwell's place of employment and caused a great deal of commotion in an effort to obtain Barnwell's Buick. In front of other employees, Trevino called Barnwell a "dead beat" and a "son of a bitch" and threatened to use "whatever force was necessary" to secure Barnwell's car. Barnwell had not driven the automobile to work on that particular day and, consequently, Trevino was unable to repossess the automobile.
As a result of these encounters with the bank and Trevino, Barnwell was twice reprimanded on the job, developed an anxious condition, was hospitalized and required medication, and suffered from weight loss, nausea, and diarrhea.
Barnwell filed suit against the bank for, inter alia, invasion of privacy. Likewise, Trevino filed suit against the bank for fraud and breach of an indemnity agreement. The bank filed a counterclaim against Barnwell on the promissory note and its underlying obligation.
The jury returned a general verdict in favor of Barnwell and against the bank for the amount of $10,000, a general verdict in favor of Trevino and against the bank for the amount of $80,000, and a verdict in favor of Barnwell and against the bank on the counterclaim. The court entered judgments based on these verdicts.
The bank's timely motion for a new trial was denied. The bank appeals.
We choose to address initially the bank's challenge to the denial of its motion for a directed verdict on the invasion of privacy and fraud claims.
Alabama recognizes that a person has an actionable right to be free from the invasion of privacy. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So. 2d 321 (1961). The debtor-creditor aspect of this right has been characterized as:
Smith v. Doss, 251 Ala. 250, 253, 37 So. 2d 118 (1948) (quoting with approval 41 Am. Jur. Privacy, § 2 P. 925 (1942)).
The court has previously recognized the right of a creditor to take reasonable action to pursue a debtor and collect a debt. Norris v. Moskin Stores, Inc., 272 Ala. at 174, 132 So. 2d at 323. Accord, Hart v. General Motors Acceptance Corp., 437 So. 2d 1255 (Ala.1983). Where the creditor takes actions which exceed the bounds of reasonableness, however, the debtor has an *866 action against the creditor for injuries suffered. Norris, supra.
We find the tendencies of the evidence in this case, when viewed in a light most favorable to the plaintiff, support a finding that the bank far exceeded the bounds of reasonableness in its efforts to collect the Barnwell debt. Twenty-eight to thirty-five phone calls to one's home and place of employment fall within the realm of a "systematic campaign of harassment," a tactic admonished by this court in Norris, citing with approval Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440 (1955), affirmed, 165 Ohio St. 35, 133 N.E.2d 340 (1956). Futhermore, Trevino's remarks at Barnwell's place of employment, as the bank's agent, unequivocally constitute coarse, inflammatory, malicious, and threatening language. See Lasalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424 (1934). Most importantly, fraudulently altering the terms of a security instrument in order to attempt to collect a debt flies in the face of reasonableness, public policy, and the law. The jury was warranted in finding these actions on the bank's part were outrageous to a person of ordinary sensibilities.
The bank contends that no evidence was presented suggesting Trevino was an agent of the bank. To the contrary, Trevino was given a letter of authorization by the bank which stated the bearer was authorized by the bank to repossess Barnwell's automobiles and would be protected by the bank from any and all claims arising from the repossession. Likewise, Barnwell testified that Trevino introduced himself by commenting, "I work for Jacksonville State Bank." Further, the record shows Trevino added, "I'm authorized to use whatever force is necessary to get the car." None of this testimony was objected to at trial. Under these facts, an issue of fact was created concerning whether Trevino was an agent of the bank and whether he was acting within the scope of that agency in his encounters with Barnwell.
In any event, the record raises issues of fact regarding whether the actions of the bank, independent of Trevino's, constituted a campaign of harassment and were beyond the bounds of reasonableness, giving rise to liability for invasion of privacy.
Likewise, evidence was presented showing that the bank intentionally misrepresented material facts to Trevino, upon which he relied, proximately causing him economic injury. Accordingly, genuine issues of fact were presented, justifying submission of the fraud count to the jury. International Resorts, Inc. v. Lambert, 350 So. 2d 391 (Ala.1977).
For example, the facts show that the bank, through Noonan and Harper, represented to Trevino that they possessed a valid security instrument naming Barnwell's automobiles as security. The jury was entitled to infer that the bank knew the representation was false because the instrument had been altered so as to include the automobile. Relying on the material misrepresentation, Trevino proceeded to Barnwell's place of employment in an effort to repossess the cars. As a proximate cause of the bank's misrepresentation, the evidence supports a finding that Trevino suffered significant economic injury.
The appellants accurately point out that the misrepresentation proven was not that pleaded. In support of this argument, our attention is drawn to the pleadings, where a misrepresentation concerning an indemnity agreement is alleged.
Alabama R.Civ.P. 15(b) allows the automatic amendment of the pleadings where, as here, issues not raised by the pleadings are tried with the express or implied consent of the parties. In this vein, we note that the jury was charged, without objection, in terms of representations regarding Barnwell's security instrument and underlying promissory note.
Accordingly, we find that genuine issues of fact were raised on both Barnwell's invasion of privacy count and Trevino's fraud count and, therefore, the bank's motions *867 for a directed verdict on those counts were properly denied.
Next, the bank argues that the breach of indemnity count was improperly submitted to the jury, in that the common law prohibits the indemnification of intentional wrongdoers. In support of this argument, the bank emphasizes that Trevino was sued in slander, an intentional tort.
The general rule is that any indemnification contract which purports to indemnify a tortfeasor from an intentional tort is void as against public policy. Fidelity-Phenix Fire Insurance Co. of New York v. Murphy, 226 Ala. 226, 146 So. 387 (1933). Cf. Industrial Tile, Inc. v. Stewart, 388 So. 2d 171 (Ala.1980), cert. den., 449 U.S. 1081, 101 S. Ct. 864, 66 L. Ed. 2d 805 (1981) (indemnification of tortfeasor's negligence upheld). However, where the wrongdoer's trespass to another's rights is merely technical or constructive, and entered into without any unlawful design, or notice that the action was wrong, and is a bona fide attempt to assert the rights of a principal, the promise of indemnity is a good and valid one. Vandiver v. Pollak, 107 Ala. 547, 19 So. 180 (1895). Cf. Mallory S.S. Co. v. Druhan, 17 Ala.App. 365, 84 So. 874 (1920).
Here, Trevino's comments to Barnwell that he was a "deadbeat" and a man "who would not pay his bills and debts" were not known to Trevino to be false and malicious, but, rather, based on the bank's representations, were honestly stated in an effort to enforce the bank's purported right of repossession upon default.
The evidence was in dispute concerning whether Trevino called Barnwell a "sorry son of a bitch," and therefore the jury could have believed that Trevino made no slanderous remarks with knowledge of their falsity.
Additionally, Trevino's breach of indemnity action was not premature, because the agreement covered him from all losses arising out of his efforts to repossess Barnwell's automobiles. This would include attorney's fees, which Trevino had already suffered at the time of filing suit.
Lastly, the record contains sufficient evidence that the bank fraudulently altered the Barnwell note, in its material aspects, and for a fraudulent purpose. Accordingly, the jury was justified in finding for Barnwell on the underlying obligation, as the debt was discharged by the bank's actions. Code 1975, § 7-3-407(2)(a); Logan v. Central Bank of Alabama, N.A. 397 So. 2d 151 (Ala.Civ.App.1981).
Based on the foregoing, the judgments entered by the trial court are due to be, and they are hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.
[1] For purposes of clarity, the procedural steps taken in this case must be tracked chronologically: On December 10, 1982, Barnwell filed an action against Jacksonville Bank in Calhoun County Circuit Court. The Bank counterclaimed against Barnwell on January 19, 1983. Barnwell amended his complaint on February 8, 1983, to include a claim against Trevino. Trevino filed a separate action against the Bank in Etowah County Circuit Court. These two separate cases, Trevino's claim in Etowah County and Barnwell's claim in Calhoun County, were joined for trial upon motion of the Bank in Calhoun County Circuit Court. | November 8, 1985 |
674afe13-55a9-4bba-9582-c0e6e1563df5 | ER Squibb & Sons, Inc. v. Cox | 477 So. 2d 963 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 963 (1985)
E.R. SQUIBB & SONS, INC.
v.
Royce Y. COX.
No. 84-476.
Supreme Court of Alabama.
October 4, 1985.
*964 J. Patrick Logan and F.A. Flowers III of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, and W. Beatty Pearson of Powell, Powell & Pearson, Andalusia, for appellant.
Michael Jazwinski of Prestwood, Prestwood & Jazwinski, Andalusia, for appellee.
PER CURIAM.
This is a products liability/negligence case. Plaintiff brought suit in the Covington County Circuit Court against: (1) defendant E.R. Squibb & Sons, Inc., a drug manufacturer, alleging negligent and wanton mispackaging of R-U-100 insulin and negligent and wanton failure to adequately warn against confusing R-U-100 insulin with N-U-100 insulin; and (2) defendant Ewin Moody, a pharmacist, alleging negligence and wantonness in failing to detect the insulin mispackaging and in failing to detect that clear insulin is not the kind of insulin plaintiff requires. After a trial on the merits, and after the trial judge directed a verdict for defendant Squibb on the wantonness counts, the case went to the jury, which returned a verdict for plaintiff and against both defendants in the sum of $300,000.00. The trial court entered judgment thereon, and it is from this judgment that defendant Squibb appeals.[1]
Defendant Squibb manufactures and sells insulin preparations. In 1981, Squibb's line of insulin preparations included: (1) an undiluted, unmodified insulin, clear in appearance, known as R-U-100 insulin, and (2) a diluted, modified insulin, cloudy in appearance, known as N-U-100 insulin. R-U-100 insulin's clear appearance *965 is due to its unmodified state, and it is the only unmodified, clear insulin that Squibb manufactures and markets.
The two kinds of insulin are packaged in boxes of the same size and color. The boxes, however, are labeled differently:
*966
*967 Each box of Squibb insulin contains an insert which provides instructions and warnings. The inserts are substantially identical, but the letter in the top righthand corner indicates the kind of insulin contained in the box (e.g., "N" or "R"). Relevant portions of the warning provided in an "R" insulin (R-U-100 insulin) insert in 1981 are as follows:
*968
Plaintiff Cox, a retired civil engineer, was diagnosed as a diabetic in 1972. Pursuant to his doctor's directions, he has always taken N-U-100 insulin.
On or about August 20, 1981, plaintiff went to defendant Moody's drugstore and purchased insulin. Plaintiff testified that on this date he requested N-U-100 insulin,[2] as he always did. Although he did not carefully look at the box, he assumed that he had been given N-U-100 insulin. He took the insulin home and put it in the refrigerator. He never read the insulin box.
On August 24, 1981, plaintiff took the insulin out of the refrigerator, opened the box, and threw it away. He also threw away the insert that comes inside the box. He did not read either the box or the insert. Prior to using the insulin, however, plaintiff noticed that it was clear, rather than cloudy, in appearance. Because plaintiff *969 had always used N-U-100 insulin, which is cloudy, he became concerned.
The evidence is conflicting as to what happened next. According to plaintiff's testimony, he took the insulin back to Moody's drugstore and explained his concern to Moody. Moody then personally looked at the bottle and told plaintiff that the insulin was okay. It was clear, according to Cox's version of what he was told by Moody, because Squibb was in the process of removing impurities from its insulin preparations.
Defendant Moody testified that plaintiff called him at home and asked him about the insulin. Moody said that he told plaintiff that Squibb was in the process of removing impurities from its insulin, but that plaintiff should come to the drugstore so that he could look at the insulin. Moody testified that plaintiff never came into the store and saw him.
A non-pharmacist employee of the drugstore, Kathy Edmonson, testified that plaintiff came into the store on August 24 at 8:10 a.m. looking for Moody. Moody had not arrived at work yet, and she asked plaintiff if she could help him. Plaintiff gave her the bottle of insulin and said that it did not look like the insulin he had been taking. The bottle was labeled R-U-100 and contained clear insulin. Ms. Edmonson went to the back of the store and got two other bottles of R-U-100 insulin. She showed them to plaintiff, and he compared them to the bottle he had brought in with him. According to Ms. Edmonson, plaintiff said he would be back, and then he left. He did not return.
Whatever the true nature of the above events, it is undisputed that on August 24, 1981, plaintiff began taking clear R-U-100 insulin from a bottle that was so labeled. Four days later, plaintiff complained to his brother-in-law that he was nauseous and not feeling well. He had not eaten in two or three days. The next day, August 30, plaintiff was taken to a hospital emergency room. Doctors diagnosed him as being in a hypoglycemic condition which was caused by the use of R-U-100 insulin rather than N-U-100 insulin. Plaintiff suffered permanent brain damage, marked memory loss, and a personality change from extroversion to introversion.
In its brief, defendant Squibb alleges numerous points of error in the trial below, and our review of the record convinces us that the trial was indeed replete with error as to Squibb. However, we need address only one issue in order to reverse the judgment against Squibb: Did plaintiff make out a prima facie case of either negligent mispackaging or negligent failure to give adequate warning? In order to make out a prima facie case under either theory, plaintiff must provide at least a scintilla of evidence that defendant (1) breached (2) a duty, which (3) proximately caused (4) plaintiff's injury.[3]
Plaintiff alleges that defendant Squibb was negligent in mispackaging a bottle of R-U-100 insulin in an N-U-100 insulin box. Prior to using the R-U-100 insulin, plaintiff threw away the box it was packaged in. Thus, plaintiff has no direct proof of defendant Squibb's alleged mispackaging. Plaintiff, however, argues that the defendant pharmacist's deposition testimony provides evidence of Squibb's mispackaging.
In his deposition, the pharmacist apparently testified that he personally sold insulin packaged as N-U-100 to plaintiff on July 22, 1981. Plaintiff's reliance on the defendant pharmacist's deposition testimony is misplaced in two respects. First, on or about August 20, 1981, plaintiff, according *970 to his own testimony, purchased the insulin that injured him. Thus, the pharmacist's deposition testimony as to what kind of insulin he sold plaintiff on July 22, 1981, is irrelevant as to plaintiff's allegations of injury caused him by allegedly mispackaged insulin which he purchased on or about August 20, 1981. Second, the pharmacist's deposition testimony was not offered into evidence at trial for any purpose, was not before the jury, and is not before us on appeal. Thus, even if some part of the pharmacist's testimony theoretically could have provided a scintilla of evidence of defendant Squibb's alleged negligent mispackaging, it did not, because it was never brought out at trial.
Plaintiff points us to nothing else that supports his allegations of negligent mispackaging. After a review of the record, we are convinced that there is no evidence, not even a scintilla, that defendant Squibb breached its duty of care in packaging this insulin. Because plaintiff failed to make out a prima facie case of negligent mispackaging, the trial court erred in not directing a verdict for defendant on this issue.
Plaintiff also alleges that defendant Squibb negligently failed to provide adequate warning of the consequences of taking R-U-100 insulin instead of N-U-100 insulin. Defendant concedes that it is under a duty to warn, and, solely for purposes of this discussion, we assume that Squibb's warnings were inadequate. As part of his prima facie negligent-failure-to-adequately-warn case, however, plaintiff still must provide a scintilla of evidence of proximate cause: Did defendant Squibb's inadequate warning proximately cause plaintiff's injury? We think not.
The evidence is undisputed that plaintiff did not read any of the instructions or warnings Squibb provided on and with its R-U-100 insulin. And, yet, plaintiff alleges that Squibb did not "by any stretch of the imagination, warn [plaintiff]... that he could suffer permanent brain damage if he used regular [R-U-100] insulin when he should have been using NPH-U-100 insulin," and that this failure proximately caused plaintiff's injury. We disagree. Even if the warning accompanying this insulin had read, "WARNING N-U-100 USERS: DO NOT SUBSTITUTE THIS R-U-100 INSULIN FOR N-U-100 INSULIN WITHOUT CONSULTING YOUR PHYSICIAN. SUBSTITUTION OF R-U-100 INSULIN FOR N-U-100 INSULIN MAY CAUSE PERMANENT BRAIN DAMAGE," it would not have altered this plaintiff's course of action and prevented his injury, because he would not have read it. Squibb's inadequate warning, therefore, did not cause plaintiff's injury.
We contrast the instant facts with a situation where a plaintiff cannot read and alleges that the written warning is inadequate for failure to include symbols, see e.g., Hubbard-Hall Chemical Co. v. Silverman, 340 F.2d 402 (1st Cir.1965) (affirming judgment against manufacturer of crop dusting chemicals in negligent-failure-to-warn action for death of two non-English reading Puerto Ricans where label on chemical container did not display skull and crossbones symbol in addition to written warning); or a situation where plaintiff alleges that the warning is inadequate with respect to prominence, see e.g., Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 87 (4th Cir.1962) (affirming judgment against manufacturer of furniture polish in negligent-failure-to-adequately-warn action for death of a 14-month-old child where mother did not read warning on furniture polish bottle, but warning was "not calculated to attract the user's attention, due to its position, size, and ... coloring").
In either of the above situations, the very nature of the alleged breach is such that it causes a potential plaintiff to fail to read the warning which causes his injury. The warning might even be perfectly adequate with respect to wording, so that if a potential plaintiff read it he would appreciate the product's particular danger, alter his conduct *971 accordingly, and not be injured. But, in the situations we describe above, the warnings are potentially inadequate because they are presented in a manner that prevents a consumer from reading them and being warned.
In the present situation, we have a different kind of inadequacy. Here, nothing in the nature of Squibb's inadequate warning prevented plaintiff from reading it. Plaintiff could have read this allegedly inadequate, unspecific warning as easily as he could have read an adequate, specific warning. And, no amount of specificity would have protected this plaintiff, because he would not have read a warning. Thus, the presumed inadequacy of Squibb's warning did not proximately cause plaintiff's injury.
Therefore, we hold today that a plaintiff who does not read an allegedly inadequate warning cannot maintain a negligent-failure-to-adequately-warn action unless the nature of the alleged inadequacy is such that it prevents him from reading it.
Our holding, concerning simple negligence causation, is not novel, nor is it new to the law of products liability negligence. See e.g., Johnson v. Niagara Machine & Tool Works, 666 F.2d 1223 (8th Cir.1981) (affirming trial court's directed verdict for defendant manufacturer in negligent-failure-to-adequately-warn action where evidence showed that plaintiff had not read warning); Shanklin v. Allis-Chalmers Manufacturing Co., 254 F. Supp. 223 (S.D. W.Va.1966), aff'd, 383 F.2d 819 (4th Cir. 1967) (affirming judgment for manufacturer of farm machine in negligent-failure-to-adequately-warn action where injured farm worker alleged that manufacturer had supplied "wrong" operating manual but evidence showed that farm worker had not read manual provided); Cobb Heating and Air Conditioning Company v. Hertron Chemical Co., 139 Ga.App. 803, 229 S.E.2d 681 (1976) (affirming summary judgment for defendant manufacturer where evidence showed that plaintiff did not read allegedly inadequate warning); Parzini v. Center Chemical Co., 129 Ga.App. 869, 201 S.E.2d 808 (1973) (reversing on other grounds, but affirming directed verdict for defendant manufacturer on issue of negligent-failure-to-warn where evidence showed that plaintiff did not read warning); McCleskey v. Olin Mathieson Chemical Corp., 127 Ga.App. 178, 193 S.E.2d 16 (1972) (affirming judgment for defendant manufacturer in negligent-failure-to-adequately-warn action where evidence showed that plaintiff did not read warning).
Because plaintiff failed to make out a prima facie case of either negligent mispackaging or negligent failure to adequately warn against defendant Squibb, the trial court erred in overruling Squibb's directed verdict motion and allowing the case against Squibb to go to the jury. Therefore, the judgment below is due to be, and it hereby is, reversed and remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES and HOUSTON, JJ., concur.
MADDOX, J., recuses.
BEATTY and ADAMS, JJ., not sitting.
[1] Defendant Moody also filed an appeal, but after he entered into a settlement agreement with plaintiff, his appeal was dismissed upon a motion of the parties.
[2] Insulin preparations are not prescription drugs.
[3] The elements of plaintiff's prima facie case of products liability negligence are identical in number and nature to those that compose a plaintiff's prima facie case of negligence in any other area of the law. See Epstein, Products Liability: Defenses Based on Plaintiff's Conduct, 1968 Utah L.Rev. 267, 270 ("The basic elements of negligence in a products liability case are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages"). | October 4, 1985 |
8d197b4f-fec4-4edd-ab28-e447e60f61d1 | Alford v. Dobbs | 477 So. 2d 348 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 348 (1985)
Nettie Hollingsworth ALFORD
v.
Aileen DOBBS.
83-1238.
Supreme Court of Alabama.
September 27, 1985.
*349 Rowan S. Bone and Edward Cunningham, Gadsden, for appellant.
Michael L. Roberts, of Floyd, Keener & Cusimano, Gadsden, for appellee.
ALMON, Justice.
This is a will contest. The trial court rendered judgment on the jury's verdict in favor of the contestant. From this judgment the proponent appeals.
The testratrix was Flossie Mae Pulsifer. The contestant is her daughter, Aileen Dobbs, and the proponent is the testatrix's sister, Nettie Hollingsworth Alford.
Pulsifer executed the will in question on July 23, 1982, when she was 69 years of age. During the years preceding the execution of this will Pulsifer suffered from alcoholism, paranoia, depression, and borderline retardation with an I.Q. of 79 due to cerebral degeneration. A comparison of electroencephalograms conducted in 1977 and 1982 indicated that she had suffered cerebral degeneration between the two examinations.
The record also reveals that Pulsifer had on occasion exhibited behavior dangerous to herself. On one such occasion in 1980, while in the hospital for surgery, she attempted to jump from a seventh floor window but Dobbs stopped her by catching her by the leg. On another occasion, during a thunderstorm, Pulsifer was found in a ditch behind her home wearing only a nightgown.
Concerned about her mother's condition, Dobbs contacted her mother's physician, who "strongly suggested" that she seek psychiatric consultation for her mother because he thought it might "help her health a great deal." Dobbs then instituted proceedings in the probate court, which ordered the sheriff to take Pulsifer into custody for psychiatric evaluation.
When Pulsifer was released from the hospital after this evaluation, Alford took her from the hospital to the office of Pulsifer's attorney, Douglas Burns. The next day Alford again took Pulsifer to Burns's office. She also took her to the office of Rowan Bone, another attorney. The next day Alford took Pulsifer back to Bone's office, where the will in question was executed. This July 1982 will left Pulsifer's entire estate to Alford, excluding Dobbs and the testatrix's grandchildren, who had been the sole beneficiaries under her previous 1977 will.
On June 24, 1983, Pulsifer died, and her 1982 will was submitted for probate on July 1, 1983. Dobbs contested this will, and the trial court, in accordance with the jury verdict, rendered judgment in favor of Dobbs, holding the 1982 will invalid. Alford argues that Dobbs did not present a scintilla of evidence that she had exercised undue influence over the testatrix to procure the execution of the 1982 will.
Alford at no time moved for a directed verdict or a judgment notwithstanding the verdict as provided by Rule 50, A.R.Civ.P. A motion for new trial was filed, but later withdrawn. For this Court to review a jury verdict on the grounds that there was insufficient evidence to support it, both a motion for directed verdict at *350 the close of all the evidence and a post-trial motion for J.N.O.V. must be made. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877 (Ala.1979); Perdue v. Gates, 403 So. 2d 165 (Ala.1981); Rule 50, A.R.Civ.P. Because appellant's only contention is that the evidence was insufficient to support the verdict, the judgment is due to be affirmed.
It is insisted in appellant's brief that only the issue of undue influence was submitted to the jury. We notice, however, that the trial court charged the jury, without objection, as follows:
It would appear under the circumstances that the jury could have reasonably understood the above charge to allow them to find the will invalid on the theory of lack of testamentary capacity. In view of our decision, it is unnecessary to resolve this issue. We note, however, that there is substantial evidence of lack of testamentary capacity.
Accordingly, the judgment is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | September 27, 1985 |
f5ccedc8-052e-4063-8a60-1f637861b5ce | Lowe v. East End Memorial Hosp. and Health Centers | 477 So. 2d 339 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 339 (1985)
John Edward LOWE, Administrator of the Estate of Nelmhlane Lowe, Deceased
v.
EAST END MEMORIAL HOSPITAL AND HEALTH CENTERS, a corporation.
83-791.
Supreme Court of Alabama.
September 27, 1985.
Ralph E. Coleman and William A. Ellis III, Birmingham, for appellant.
Lyman H. Harris of Harris & Evans, Birmingham, for appellee.
ADAMS, Justice.
Plaintiff-appellant, John Edward Lowe, brings this appeal following the Jefferson County Circuit Court's grant of summary judgment in favor of defendant-appellee, East End Memorial Hospital and Health Centers. We affirm.
The plaintiff's decedent, Nelmhlane Lowe, eight months pregnant, entered East End Memorial Hospital on November 13, 1980. Mrs. Lowe was diagnosed as having pregnancy toxemia and gastroenteritis. While undergoing treatment, Mrs. Lowe's blood pressure became greatly elevated and she suffered a seizure. Soon after this episode, Mrs. Lowe was transferred to University Hospital for further treatment, and it was discovered that her fetus was dead. Mrs. Lowe died on November 14, 1980.
*340 Plaintiff, as the administrator of Mrs. Lowe's estate, filed suit on November 18, 1983, alleging negligence, wantonness, and breach of implied contract in the treatment of Mrs. Lowe. In addition, plaintiff alleged the following in paragraph four of his complaint:
On December 15, 1983, defendant filed a motion to dismiss for failure of the plaintiff to state a claim upon which relief could be granted. A.R.Civ.P. 12(b)(6). This motion was continued. Defendant moved for summary judgment on January 4, 1984, arguing that plaintiff's only cause of action was for wrongful death and was barred by the two-year time limitation for asserting this remedy. In response to defendant's summary judgment motion, plaintiff amended his complaint on March 14, 1984. Plaintiff's amendment partially states:
The trial court, on March 16, 1984, after argument of counsel and consideration of the amended complaint, as well as medical records offered, granted summary judgment in favor of the defendant. The court held that the plaintiff's complaint was barred by the two-year limitation of the Alabama Wrongful Death Act, Code 1975, § 6-5-410, and that this time period could not be extended by asserting fraud as an alternative cause of action.
On appeal, plaintiff argues that although his action for wrongful death is time-barred, he has a viable cause of action for fraud pursuant to Code 1975, § 6-5-100 through § 6-5-102. Plaintiff asserts that subsequent to, and independent of, the alleged negligent acts of defendant, the defendant, through a letter written by hospital officer Ralph Clark in 1981, suppressed facts relating to the death of Mrs. Lowe and misrepresented facts as to the involvement of the defendant hospital in Mrs. Lowe's care.[1] As a result of the allegedly *341 misleading statements in the letter, plaintiff contends, he was caused to lose his cause of action under Code 1975, § 6-5-410. Furthermore, plaintiff argues that his fraud claim is tolled by Code 1975, § 6-2-3, which provides:
Although plaintiff's theory is novel, we pretermit discussion of it inasmuch as any viable action for fraud would be negated by plaintiff's failure to adequately plead or support this cause of action in the present case.
On appeal from summary judgment, we must look to the same factors considered by the trial court in its ruling on the motion. Jehle-Slauson Construction Co. v. Hood-Rich Architects, 435 So. 2d 716 (Ala.1983). In the instant case, the court relied upon the pleadings and medical records, the only evidence presented with regard to the summary judgment motion. We also note that the judgment of the trial court will be upheld if the court's holding is correct, despite the fact that our reasons are different from those stated by the trial court. Kite v. Kite, 444 So. 2d 863 (Ala.Civ. App.1983).
Our holding in Miller v. Mobile County Board of Health, 409 So. 2d 420 (Ala.1982), is helpful in reaching a decision in this case. In Miller, we affirmed the trial court's dismissal of the plaintiff's complaint, holding that the plaintiff's actions for fraud, misrepresentation, and fraudulent concealment were time-barred because of plaintiff's failure to allege specific facts about the defendant's fraudulent conduct or facts explaining what prevented plaintiff from discovering the facts giving rise to an action for fraud. Justice Faulkner, speaking for the Court, opined:
Miller v. Mobile County Board of Health, 409 So. 2d at 422.
In the instant case, assuming arguendo that plaintiff may assert a fraud claim under these facts, we find that the allegations of plaintiff's complaint, as set out above, do not give rise to any facts that would toll the one-year statute of limitations for fraud. Code 1975, § 6-2-39. Moreover, plaintiff failed to make any factual showing on summary judgment that would activate the tolling provision of Code 1975, § 6-2-3. There is no evidence in the record before us to explain plaintiff's delay of over two and one-half years in discovering the facts giving rise to an action for fraud, and the burden is on the plaintiff to show that he comes within the § 6-2-3 tolling provision. Miller, supra; Amason v. First State Bank of Lineville, 369 So. 2d 547 (Ala.1979). Any possible action for fraud is time-barred. See Braggs v. Jim Skinner Ford, Inc., 432 So. 2d 466 (Ala. 1983).
The judgment of the trial court is affirmed.
AFFIRMED.
FAULKNER, ALMON, SHORES and HOUSTON, JJ., concur.[2]
TORBERT, C.J., not sitting.
[1] Reprinted below is the correspondence upon which plaintiff relies to support his claim for fraud.
February 23, 1981
Mr. John E. Lowe
Route 1 Box 76-T
McCalla, Alabama 35111
Dear Mr. Lowe:
East End Memorial Hospital is very concerned about what happened to your wife and wishes to express its sympathy to you and your family. The matter has been investigated and we are continuing to investigate it. We are naturally concerned when anyone who is a patient at the hospital passes away.
You asked for a copy of our investigation report. We have no formal report, so we have prepared this for you.
Members of the public frequently do not understand the distinction between the role of the physician and the hospital. As a general rule, the hospital does not employ the physicians who treat patients at its facility and those physicians are independent contractors. The role of the hospital personnel is basically to follow the directions of the treating physician and assist the physician in treating a patient. The role of the physician is to diagnose the patient's condition and to prescribe treatment. We at the hospital are, therefore, not experts in diagnosis and in knowing what specific treatment is called for in any given situation. We must depend upon the physicians on the hospital staff for that. Another role that the hospital nurses play is to transmit information to the treating physician when things occur which the nurses feel should be brought to the attention of the treating physician when the physician is not at the hospital. With this in mind, we have interviewed the nurse who was on duty in the labor room. She, incidentally, was so shaken by the death of your wife, that she resigned her position at the hospital shortly after your wife passed away. We have determined through talking with her and from reviewing the entries which she and Dr. Gilmore made in the hospital records that she was in frequent contact with Dr. Gilmore throughout the evening, relaying information to him and requesting supplementary instructions from him. She talked to Dr. Gilmore by telephone at approximately 3:30 p.m. after your wife arrived at the hospital. Dr. Gilmore had requested a urinalysis. That was done and the results of the urinalysis were received at some time around 5:00 p.m. Dr. Gilmore visited the hospital and examined your wife personally at approximately 5:30 p.m. The medication order sheets show that the nurse contacted Dr. Gilmore for supplemental medication instructions at approximately 8:40 p.m. She was in touch with him again at 10:15 and again at 10:30 p.m. Then at approximately 11:45 p.m., she called Dr. Gilmore and he returned to the hospital.
Mrs. Lowe's blood pressure elevated radically within a short period of time. The decision as to what treatment was necessary for that condition was Dr. Gilmore's. He can better explain to you than we the cause of the rise of her blood pressure and the cause of her death. As a part of our continuing investigation, we would like to obtain a copy of the pathology report from the autopsy and the University Hospital records so that we might better understand the cause of death. We are, therefore, requesting that you sign medical authorizations so that we can obtain it.
This letter was not introduced by plaintiff in opposition to the defendants' motion to dismiss or motion for summary judgment and was first brought forward in plaintiff's brief on this appeal. Since the letter is not part of the record on appeal, it is not for our consideration.
[2] Although Houston, J., did not sit at oral argument, he has studied the briefs and listened to the tapes of oral argument. | September 27, 1985 |
7c52f76f-c31a-49d6-9083-25af5bdc7681 | Phalen v. BIRMINGHAM RACING COM'N | 481 So. 2d 1108 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1108 (1985)
Dennis R. PHALEN
v.
The BIRMINGHAM RACING COMMISSION, a body purporting to be a corporation, et al.
Padgett C. COPE, et al.
v.
The BIRMINGHAM RACING COMMISSION, a body purporting to be a corporation, et al.
BIRMINGHAM TURF CLUB, INC., an Alabama corporation, et al.
v.
STATE of Alabama, on the Relation of Dennis R. PHALEN, an informant.
84-840, 84-861 and 84-921.
Supreme Court of Alabama.
November 22, 1985.
*1109 Thomas L. Stewart of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for appellant Dennis R. Phalen.
A. Eric Johnston and R. Dale Wallace, Jr. of Seier, Johnston & Wallace, Birmingham, for appellants Padgett C. Cope, et al.
William J. Ward and Michael L. Edwards of Balch & Bingham, William M. Slaughter, Mark E. Ezell and James L. Richey of Haskell, Slaughter, Young & Lewis, Birmingham, for cross-appellants Birmingham Turf Club, et al.
David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellee The Birmingham Racing Com'n.
James K. Baker, City Atty., Birmingham, for appellee-intervenor City of Birmingham.
MADDOX, Justice.
These appeals and cross-appeal involve the question of the constitutionality of an act of the legislature which authorizes horse racing in the City of Birmingham.
The trial court, after reviewing the law, the briefs, and joint exhibits, and without taking any testimony, entered the following decree:
"This proceeding in Quo Warranto seeks to prevent the exercise of corporate powers by The Birmingham Racing Commission (the `Commission') and also seeks a declaratory judgment that Act No. 84-131 of the 1984 Regular Session of the Legislature of Alabama (the `Act') is unconstitutional. In challenging the constitutionality of the Act the Plaintiffs have raised various issues concerning: the constitutionality and effect of Section 11-40-12, Code of Alabama (1975); the applicability of Article IV Sections 94, 104 and 105 of the Constitution of Alabama of 1901 (`Alabama Constitution') to the Act; the variances between the notice of the Act which was published and the Act as passed; and the applicability of the equal protection clause of the United States Constitution.
"The issues were submitted to the Court on briefs and joint exhibits. No oral testimony was taken.
"Several of the issues turn on whether the Act is a local law or a general law. Before the ruling in Peddycoart v. City of Birmingham, 354 So. 2d 808 (Ala.1978) Article IV, Section 110 of the Alabama Constitution defined a local law as `a law which *1110 applies to any political subdivision or subdivisions of the state less than the whole.' The Peddycoart decision stated `Henceforth when at its enactment legislation is local in its application it will be a local act and subject to all of the constitutional qualifications applicable to it.' Amendment No. 375 to the Alabama Constitution was passed which amended Article IV, Section 110 and which granted the legislature the authority to enact a schedule of not more than eight classes of municipalities based on population. Amendment 375 provided that a law that applied to a whole class of municipalities was a general law. The legislature then passed an act which became Section 11-40-12 of the Code and which established the eight classes of municipalities authorized by Amendment 375. Finally, Amendment 397 to the Alabama Constitution was passed which incorporated the definition of a general law contained in Amendment 375 and which specifically `ratified, approved, validated and confirmed' the classes of municipalities established by the act which became Section 11-40-12. Therefore, Article IV, Section 110, as amended, now defines a general law as `a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class.' Section 110 goes on to state that general laws for any purpose may be enacted for any class. When a general law applies to only one municipality, notice of such law must be given as required in Section 106 of the Alabama Constitution for special, private or local laws. This notice requirement does not, however, make the general law a local law. Local laws are now defined as `a law which is not a general law or a special or private law.'
"Among other things, the Act provides for horse racing and pari-mutuel wagering in Class 1 municipalities and for the establishment of a racing commission to regulate those activities. A Class 1 municipality is defined in Section 11-40-12 as `all cities with a population of 300,000 inhabitants or more' and the population requirement was based on the 1970 federal decennial census. Birmingham was the only city to fall into Class 1 and will remain as the only Class 1 municipality unless future legislation changes the situation. Thus, while the Act applies to all Class 1 municipalities, it only applies to Birmingham.
"Based on the above, it is the opinion of the Court that Section 11-40-12 is constitutional having been passed pursuant to one constitutional amendment and ratified, approved, validated and confirmed by another. It is further the opinion of the Court that Article IV, Section 110 of the Alabama Constitution now specifically permits general laws to be passed with [sic] apply only to one class of municipalities even when that class is made up of only one municipality. Section 110 does, however, still provide for local laws when a law does not apply to the entire state and does not apply to one class as established in Section 11-40-12. [Opinion of the Justices No. 268, 381 So. 2d 632 (Ala.1980)]. If the Act is a local law, it violates several provisions of Article IV, Section 104 and Article IV, Section 105 of the Alabama Constitution. It appears to the Court that if the Act applies to all of Jefferson County, Alabama, it is a local law. However, Section 47 of the Act provides that the provisions of the Act are severable. The Court finds that it is the express intention of the Act to apply to Class 1 municipalities and, as such, to be a general law under the provisions of Section 11-40-12 and Article IV, Section 110, as amended. The Court further finds that it can sever those provisions which relate to Jefferson County as a whole and thereby construe the Act as a general law. Upon review of the Act the Court finds that the only provision which needs to be severed is that part of Section 46 that pertains to a county-wide referendum. In addition to the general severability clause of Section 47, Section 46 contains a specific severability clause which allows for the severance of the provision pertaining to the county-wide referendum.
"Article IV, Section 94, as amended by Amendment No. 112, of the Alabama Constitution provides that the legislature may not authorize a city to lend its credit, or to *1111 grant public money to any individual, association or corporation. This section has been held to apply only to private corporations, [Opinion of the Justices No. 147, 263 Ala. 174, 81 So. 2d 699 (1955)]. The Commission is a public corporation and thus, as to loans it may receive, it is not subject to the restrictions of Article IV, Section 94, as amended, which apply to private corporations. Furthermore, the Commission is not, itself, a political subdivision of the state so that the provisions of Article IV, Section 94, as amended, do not apply to the Commission's own transactions. [Alabama Hospital Association v. Dillard, 388 So. 2d 903 (Ala.1980); Knight v. West Alabama Environmental Imp. Auth., 287 Ala. 15, 246 So. 2d 903 (1971)].
"Article IV, Section 104 of the Alabama Constitution provides that the legislature shall not pass a special, private, or local law in any of the 31 subject areas set out therein. The section ends with a statement that the legislature shall pass general laws covering those subjects. Here, Article IV, Section 110 of the Alabama Constitution, as amended, creates a severe conflict with the general need to have uniform laws on some subjects throughout the entire state. By definition, Section 104 is not applicable to the Act because Section 104 applies to special, private and local laws and the Court finds the Act to be a general law under Section 110. However, many of the subjects which would formerly have come within Section 104 must still be considered under the equal protection clause of the United States Constitution. This is clearly shown by the decision in Peddycoart, supra, and in Crandall v. City of Birmingham, 442 So. 2d 77 (Ala.1983). In considering the equal protection clause, it should be noted that, whereas Section 104 prevented the passage of any local legislation concerning certain subjects, equal protection considerations do allow for legislation which is applicable to specific geographical areas. [Salsburg v. State of Maryland, 346 U.S. 545, 74 S. Ct. 280, 98 L. Ed. 281 (1954), Young v. State, 283 Ala. 676, 220 So. 2d 843 (1969)]. Even so, the Court finds that some of the provisions of the Act do violate the equal protection provisions and are therefore invalid. Section 37 of the Act provides that the holding of a horse [race] without a license, and some forms of wagering, shall be a misdemeanor. Section 39 of the Act provides that certain tampering with horses shall be a felony. Section 40 of the Act provides that with the exception of television or radio coverage, the transmission of certain racing information within specified periods before and after the races shall be a felony. It is the opinion of the Court that felonies and misdemeanors must be applicable to the state as a whole, not just Class 1 municipalities and, therefore, Sections 37, 39, and 40 of the Act are invalid.
"Section 10(9) of the Act provides that the Commission may adopt reasonable rules, regulations and conditions covering racing and pari-mutuel wagering. Such rules and regulations may include civil penalties for the violation thereof. Section 10(10) gives the Commission the power to issue subpoenas to compel the attendance of witnesses and the production of documents. Section 21 of the Act allows the Commission to suspend or revoke a license or to fine the holder up to $5,000.00 and Section 26 provides for the suspension or revocation of a permit or for a fine of up to $1,000.00. It appears clear that the legislature may grant a public corporation the right to adopt and enforce rules and regulations. [Opinion of the Justices No. 147, supra]. The grant of the power to issue subpoenas is not as clear. The Court specifically asked counsel to address this issue in their briefs but they apparently were unable to find any authority on the subject. The agencies and associations listed by counsel to which the subpoena power has been granted are state agencies, not public corporations, and, thus, not conclusive of the issue. The Court's own research, including a general review of sources such as C.J.S. and Am.Jur., has been equally unproductive. Thus, since every presumption and intendment is in favor of the validity of the Act, the Court finds that Sections 10(9), 10(10), 21 and 26 of the Act are valid. *1112 [Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944), cert. dismissed 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945)].
"Article IV, Section 105 of the Alabama Constitution provides that no local laws shall be enacted in any case which is provided for by a general law. Since the Court has found that the Act may be construed as a general law, it is the opinion of the Court that the Act does not violate Article IV, Section 105.
"There are several differences between the text of the proposed act as published in the newspapers and the Act as finally passed. Some changes are permissible. [McGehee v. State ex rel. Tate, 199 Ala. 187, 74 So. 374 (1916); Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 So. 2d 895 (Ala.1982)]. One change was the inclusion in the Act of the provision in Section 48 calling for a county-wide referendum whereas the published notice had provided for a referendum within the Class I municipality. The Court does find that this is a material variance, however, that provision may be severed from the Act and therefore the Act does not become invalid because of it. [In the referendum held June 12, 1984, the voters within the City of Birmingham and in Jefferson County as a whole voted in favor of the Act, thus, the severance of this provision does not change the outcome of the referendum]. Another change which might be material is the method of selection of one of the Commission members. The published notice provided that one member would be appointed by the mayor of the sponsoring municipality whereas Section 5 of the Act provides that such member shall be appointed by the Lieutenant Governor of the State. It is clear from the cases that the method of selection of persons serving on boards and commissions is a material part of the required notice. [Birmingham-Jefferson Civic Center Authority v. Hoadley, supra]. However, in the Opinion of the Justices No. 97, 252 Ala. 361, 41 So. 2d 266 (1949), the Supreme Court approved of a change in the method of selection of one member of a five member board and held that it was not such a material change as to violate the provisions of Article IV, Section 106 of the Alabama Constitution. In that opinion the Supreme Court held:
The Court, therefore, finds that the change in the method of appointment of one of the five members of the Commission is not such a material change as would cause the Act to be invalid. The Court has reviewed the other changes, between the published notice of the proposed Act and the Act as passed by the legislature, which have been noted by counsel and it does not find any of them to be so material as to cause the Act to be invalid.
"The Court has previously discussed what it found to be the most serious aspect of the Act in relation to the issue of the equal protection clause of the United States Constitution. Based upon the holdings in Salsburg v. State of Maryland, supra and Young v. State, supra, it is the opinion of the Court that when the Act grants certain rights, powers, or authority to Class 1 municipalities, it does not thereby, per se, violate the equal protection rights of persons living outside of the Class 1 municipality. It is further the opinion of the Court that, except for the provisions of Sections 27, 39, and 40 of the Act which create new felonies and misdemeanors, the provisions of the Act are not invalid under the equal protection clause of the United States Constitution.
"It is, therefore, ORDERED, ADJUDGED and DECREED by the Court as follows:
*1113 "ONE: Section 11-40-12 Code of Alabama (1975) is a constitutionally valid section.
"TWO: That portion of Section 46 of Act No. 84-131 which provided for a county-wide referendum is severed from the Act and after such severance the Act is a general law.
"THREE: Act No. 84-131 does not violate the provisions of Article IV, Section 94, as amended by Amendment No. 112, of the Constitution of Alabama of 1901.
"FOUR: Sections 37, 39, and 40 of Act No. 84-131 violate the equal protection provisions of the United States Constitution and are, therefore, invalid.
"FIVE: Sections 10(9), 10(10), 21 and 26 of Act No. 84-131 are valid delegations of authority by the state legislature.
"SIX: Act No. 84-131 does not violate the provisions of Article IV, Section 104 of the Alabama Constitution.
"SEVEN: Act No. 84-131 does not violate the provisions of Article IV, Section 105 of the Alabama Constitution.
"EIGHT: The amendment which required a county-wide referendum instead of a referendum within the Class 1 municipality was a material change between the notice which was published in the newspapers and Act No. 84-131 as finally passed. However, Section 46 of Act No. 84-131 which contains this amendment provided that it could be severed from the other provisions of the Act and the Court has severed it from the Act so that such material change does not cause the entire Act to be invalid.
"NINE: The change in the method of appointment of one member of The Birmingham Racing Commission is not such a material change as would cause Act No. 84-131 to be invalid.
"TEN: Except for Sections 37, 39 and 40 of Act No. 84-131, the provisions of the Act do not violate the equal protection provisions of the United States Constitution.
"ELEVEN: The relief requested by the Plaintiff in the proceeding in quo warranto is denied.
"TWELVE: Costs of this action are taxed to Plaintiff.
"DONE and ORDERED this 9th day of May, 1985.
As the trial court pointed out, the principal issue in this case is whether Act 84-131 is a general law and constitutional, or a local law and unconstitutional. Crosslin v. City of Muscle Shoals, 436 So. 2d 862, 863 (Ala.1983), lists several well established principles of law relevant to this issue:
Act No. 84-131, codified as Code 1975, §§ 11-65-1 through 11-65-47, permits *1114 horse racing and pari-mutuel wagering thereon, subject to a public referendum, in Class I municipalities as defined in § 11-40-12. Section 11-40-12 defines Class I municipalities as those having populations of 300,000 or more inhabitants, based on the population as certified by the 1970 federal decennial census. All parties in this case agree that, without further legislative action, Birmingham is the only Alabama city classified as a Class I municipality under this definition, and, thus, under the provisions of Act No. 84-131, is the only Alabama city allowed to authorize horse racing.
There is no doubt that prior to the ratification of Amendments 375 and 397 to Section 110 of the 1901 Constitution of Alabama, this legislation would be void as a local act. As originally enacted, Section 110 provided:
The clear intent of Section 110 is to prevent local populations from resorting to the legislature to solve every local issue. Adams, Legislation by Census: The Alabama Experience, 21 Ala.L.Rev. 401, 404 (1969). See, 2 Official Proceedings of the Constitutional Convention of the State of Alabama May 21st, 1901, to September 3rd, 1901, at 1778-1782 (1940). Thus, the constitution placed limitations on the power of the legislature to enact local laws. See, Article IV, §§ 104, 105, 106, 1901 Constitution of Alabama. Shortly after the adoption of the 1901 Constitution, however, this Court, by judicial interpretation, construed the language of Section 110 to permit legislation based on population distinctions. This legislation, by reason of these population classifications, became known as general bills with local application. As explained in Reynolds v. Collier, 204 Ala. 38, 39-40, 85 So. 465, 476 (1920):
This exception allowed many statutes to be upheld which by their terms applied not to the entire state, but to counties or municipalities which fell within specified population classifications. Justice Shores, in Belcher v. McKinney, 333 So. 2d 136, 140 (Ala.1976), explained the rationale for allowing these acts to be classified as general, as follows:
The concept was that population classifications, when established in an act, were permitted if the possibility existed for other subdivisions to grow into the classification.
In Peddycoart v. City of Birmingham, 354 So. 2d 808, 814 (1978), this Court reviewed the history of its decisions on the "general" versus "local" law dichotomy, and issued an opinion which, in effect, required the legislature, on pain of having its *1115 acts declared unconstitutional, to follow the literal language of Section 110:
Clearly, Peddycoart held that if, at the time of its enactment, an act applied to only one political subdivision, whether a county or a city, then it was a local act and subject to the restraints of the Alabama Constitution on local legislation.
The appellants in the Cope appeal contend that Peddycoart did not change the law regarding local and general acts that had previously existed. They argue that Peddycoart held that if, when enacted, a law does not have prospective application to more than one subdivision, it is local. They argue that if the classification established by the act is "open," it is general, and that because Birmingham is the only municipality in Alabama that can ever be a Class I municipality, they contend that the act is local.[2]
The legislature, almost immediately upon learning that it would be bound under Peddycoart to a literal interpretation of Section 110, proposed an amendment to Section 110, and this proposed amendment became Amendment 375 when it was ratified by the people. That amendment redefines local and general laws:
Thereafter, the legislature passed Act No. 79-263, codified as Code 1975, § 11-40-12, establishing eight classes of municipalities as authorized by Amendment 375. The classifications were based on the 1970 federal decennial census, which was then the most recent federal decennial census. Amendment 397 also addressed the problem *1116 of general laws with local application, and restated Amendment 375, but added:
The Cope appellants argue that these amendments did not change the rule in Peddycoart. We disagree. The express language of Amendment 397 authorizes general laws applicable to a class containing only one municipality; provided, of course, the bill is advertised pursuant to Article IV, Section 106, of the 1901 Alabama Constitution. Clearly, the amendment authorizes legislation not authorized under Section 110 as interpreted by Peddycoart. Moreover, Amendment 397 ratified any action of the legislature regarding the eight classes of municipalities established by Act No. 79-263. In effect, the amendment ratified all laws enacted pursuant to this Act as general acts, even though those laws may apply to only one municipality.
Each appellant argues that a construction of Amendment 397 that permits the passage of general laws applicable to a class containing a single municipality would somehow destroy all distinctions between local and general laws and would permit the wholesale circumvention of Sections 104, 105, and 110 of the Constitution of Alabama. We are of the opinion that this argument is not sound in two respects. First, Amendment 397 does not purport to, and does not, abolish all distinctions between general and local laws. The restrictions applicable to local laws remain vital with respect to laws applicable to the various counties, laws applicable to designated individual municipalities, and laws applicable to other types of geographic regions or political subdivisions less than the entire state. Thus, after the enactment of Amendment 397, the distinction between general and local laws remains vital despite the existence of constitutional provisions which permit the Legislature to enact general laws applicable to a class containing only one municipality.
Second, and more fundamentally, this argument is not sound, because it logically suggests that the legislature and the people of this state may amend the Constitution of Alabama only if the new provisions are consistent with every existing provision of the Constitution. This argument ignores the fact that Amendment 397 is part of the Constitution and that legislation passed in accordance with the terms of the amendment cannot be repugnant to that same Constitution. To adopt this argument would be to prohibit amendments.
The principle underlying Amendments 375 and 397 was twice proposed by the legislature and twice ratified by the people of this state and now is as much a part of our organic law as any other part of the Constitution. No decision of this Court, either before or after Peddycoart, has challenged the right of the legislature and the people of Alabama to amend the Constitution, even though such amendments may be inconsistent with previous provisions of the Constitution. The Act under review is a statute applicable only to Class I municipalities, and, as such, it is a general law of the state, because Amendment 397 to the Constitution specifically provides that such a statute is a general law. The act was advertised pursuant to Section 106, as required in Amendments 375 and 397 for laws applicable to only one municipality; therefore, the act is constitutional under the Alabama Constitution.
Appellant Phalen concedes that the act was passed in compliance with Amendment *1117 397, and that the amendment changed the definitions of local and general laws then extant, but argues that the Amendment itself allows arbitrary classification of municipalities by population, which the legislature did in § 11-40-12, and that the amendment, and the act setting up classifications violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. Phalen contends:
When there are no suspect classes or fundamental rights involved, this Court must uphold legislation if any rational basis exists for the population classification used. See, Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263, 271 (Ala.1981); Muncaster v. Alabama State Ethics Commission, 372 So. 2d 853 (Ala.1979). We must determine if there is a rational basis for the population classifications ratified in Amendment 397 and set out in Code 1975, § 11-40-12. Clearly, under the United States Constitution, "territorial uniformity is not a constitutional prerequisite." McGowan v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961). Thus, the legislature may pass laws which affect different areas in different ways, as long as some rational basis exists for the distinction. Obviously, the needs of a municipality will vary somewhat according to its population and the legislature may consider these needs in enacting legislation. See, Opinion of the Justices, No. 81, 249 Ala. 511, 31 So. 2d 721 (1947).
Even though we find Amendment 397 constitutional, the equal protection guarantees of the federal constitution still require that we determine whether any rational basis exists for distinguishing Birmingham from the rest of the state for purposes of establishing a horse racing facility. We find that the legislature was authorized to conclude that such a basis does exist.
The legislature could have determined that a major horse racing facility, such as that contemplated for Birmingham, requires a substantial capital investment and the patronage of many people. The legislature could further find that the racing facility proposed for Birmingham, for instance, could be expected to cost a substantial amount of money and would require governmental bodies to finance access roads and make other improvements in the area of the horse racing facility at a substantial outlay.
Appellants further seek to establish the discriminatory effect of the act, by arguing that the population of Birmingham under the 1980 federal decennial census is no longer sufficient to classify Birmingham as a Class I municipality, but that under the 1980 census, Birmingham is a Class II municipality. They contend that any rational basis for distinguishing Birmingham from other Class II municipalities no longer exists. We need not decide when or under what circumstances, if ever, legislation might be unconstitutional in its application under the equal protection clause of the Fourteenth Amendment when the legislature does not use the most recent federal decennial census in adopting legislation as authorized by Amendments 375 and 397. We are satisfied no discrimination is present here, for the reasons we have already enunciated. The 1980 census lists *1118 the population of the Birmingham standard metropolitan statistical area as being 847,487. In contrast, the city with the second largest metropolitan area population, Mobile, has a metropolitan population of only 443,536. Thus, while the population of the city of Birmingham may not vary substantially from the population of Mobile or Montgomery, which are the two other Class II municipalities in Alabama under the 1980 census, the area surrounding Birmingham is the most densely populated area in the state.
"[T]hose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the government decision maker." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S. Ct. 715, 723, 66 L. Ed. 2d 659 (1981). Under a different factual setting, a person might be able to show an unconstitutional discrimination, but these appellants have not done so here.
Appellants also contend that voters in Birmingham and Jefferson County were not given proper notice of the contents of the act as required in Amendment 397. Although there were differences between the act as advertised and the act as passed, we hold that the trial judge was authorized to find that none of the alleged variations between the notice and the act was material.
The appellants point out five variances which they deem are sufficient to invalidate the entire act:
A. The provisions of Section 46 (Code 1975, § 11-65-46) requiring a referendum of electors residing in the county, outside the corporate limits of Birmingham, in addition to the referendum of electors residing within the city of Birmingham.
B. The provisions of Section 4 (Code 1975, § 11-65-4) providing for the appointment by the lieutenant governor of Alabama of one member of the five-member commission created by the act, instead of by the mayor of the Class I municipality, as stated in the notice.
C. The provisions of Section 20 (Code 1975, § 11-65-20) establishing a "state wagering fee" of 1% of the amount wagered after the fifth year of horse track operations, a provision not specifically set out in the notice.
D. The provisions of Section 36 (Code 1975, § 11-65-36) which set forth a list of some 29 governmental and charitable not-for-profit organizations designated to receive stated percentages of "net proceeds" received by the commission after payment of expenses, which were referred to in the notice as disbursements for "various governmental and charitable purposes in the host county including disbursements to private, not-for-profit organizations," but not listed or specified by name.
E. The notice failed to specify the powers of the Racing Commission as set out in the act.
Amendment 397 does require, as appellants argue, that any general law applicable only to one municipality, as this one is, be advertised as provided in Section 106, and that prior to the introduction of such a bill notice must be published which states the substance of the proposed law. Of course, the purpose of the notice requirement is to prevent the deception of those most directly affected by the proposed law and to allow those opposed to the bill "to protest against and oppose its enactment." Wallace v. Board of Revenue of Jefferson County, 140 Ala. 491, 502, 37 So. 321, 323 (1904).
Because the public notice is intended to prevent deception of the public, the notice need not state all the details of the bill, only its substance. "Substance" has been defined as "the essential or material part, the essence, the meaning or abstract * * * and not [an act's] mere purpose or subject. Wallace, 140 Ala. at 502, 37 So. at 323. Out of the many decisions considering Section 106, four canons of construction have emerged:
Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 So. 2d 895, 899 (Ala. 1982).
The public notice need not state all the details of the bill, and need not set forth the bill in its entirety. Gray v. Johnson, 235 Ala. 405, 407, 179 So. 221, 223 (1938); Opinion of the Justices, 433 So. 2d 451, 452 (Ala.1983); Opinion of the Justices, 435 So. 2d 731, 733 (Ala.1983). The notice need only state an intelligible abstract or synopsis of the bill's material and substantive elements, leaving the legislature free to shape and improve the details of the proposed bill during the legislative process. The rule is that the legislation, when finally enacted, must not be materially and substantially different. See, Adam v. Shelby County Comm'n, 415 So. 2d 1066 (Ala. 1982). As this Court has stated:
McGehee v. State ex rel. Tate, 199 Ala. 287, 290, 74 So. 374, 375-76 (1916) (citations omitted).
Bearing these principles in mind, we now address each alleged material variation individually.
The final version of the act required a county-wide referendum to approve horse racing in Birmingham. However, the published notice was addressed only to voters in Birmingham. The trial court found this to be a material variation, but ruled that this provision could be severed from the act without affecting the outcome of the referendum because voters in the county, as well as those in Birmingham, had already approved the act.
We hold that although the published notice was only addressed to the voters in the city of Birmingham, the legislative change to require the entire county to vote on the question was not so material as to invalidate the act; consequently, we do not agree with the learned trial judge that the variance was material, but his judgment on the effect of the variance is correct, nevertheless. As we have already pointed out, residents in the Birmingham metropolitan area will be affected and the population of adjoining areas is one of the reasons we have concluded that the legislature is authorized to make the classification it did.
The purpose of the act is to provide for horse racing in Class I municipalities. The provision for the county-wide referendum was added as a result of public comment and criticism during the amendment process because many citizens and legislators felt that all of the residents of the host county would be affected sufficiently by the conduct of horse racing and pari-mutuel wagering to warrant their participation in the referendum; however, only city residents are directly affected by the purpose of the act.
*1120 This legislative scheme is shown by § 46 of the act. That section provides that horse racing would be authorized only if approved both by all voters casting votes and a majority of voters casting votes who lived in the municipality affected. Thus, the outcome of the referendum was largely dependent upon the votes of city electors. If approved by a sufficient number of votes, the fact that voters in the county did not approve of the act would be of no effect; however, the opposite is not true. Even if a sufficient number of county voters together with city voters approved the act, if voters in the city did not vote in favor of the act, the referendum would fail to pass.
As we have already stated, we disagree with the trial judge's holding that the provision regarding the county-wide referendum is material, but the result he reached is consistent with our determination of this issue.
The trial court also found that "the method of selection of persons serving on boards and commissions is a material part of the required notice." Nevertheless, the court held that changing the method of selecting only one member of the commission was not material. We agree.
The published notice provided that the members of the Birmingham Racing Commission were to be as follows: the mayor of the sponsoring city (Birmingham), the president of the host (Jefferson) county commission, one member appointed by state representatives from the host (Jefferson) county, one member appointed by state senators from the host (Jefferson) county, and one member to be appointed by the mayor of the sponsoring city (Birmingham). The act provided that the final member was to be appointed by the lieutenant governor of Alabama, rather than by the mayor of Birmingham, as provided for in the notice. We do not, under these facts, find this to be a material variance.
In Opinion of the Justices No. 97, 252 Ala. 361, 362, 41 So. 2d 266, 267 (1949), this Court faced a similar question and determined that the change was not a material alteration in the substance of the act in question. In the factual context considered in that opinion, the bill as advertised established a Board of Revenue of Colbert County and designated by name four of the five members of the board and provided that the fifth member would be appointed by the Governor. The law, as enacted, was changed to designate by name the fifth member of the board. The Court opined that the change in the method of selection of one member was not a material change in the substance of the bill.
Appellants cite Birmingham-Jefferson County Civic Center Authority v. Hoadley, 414 So. 2d 895 (Ala.1982), and Parrish v. Faulk, 293 Ala. 401, 304 So. 2d 194 (1974), as support for the contention that the change in the method of selection is material. In both of these cases, the change from the published notice to the act was found to be material; however, the changes in those two cases were much more substantial than that made here.
In Hoadley, the published notice stated that nine members of the board of directors of the Jefferson County Civic Center Authority were to be appointed by state senators and representatives from Jefferson County voting jointly. The act provided that five members of the authority were to be appointed by the Senate delegation and four were to be appointed by the House delegation. This worked a complete change in the composition of the authority. As the Court stated: "[A] change in the very authority by whom those directorships are to be filled, and a change in the number which are to be filled by an altered selection authority, are not immaterial changes, for they go to the very essence of the selection process itself." Birmingham-Jefferson County Civic Center Authority v. Hoadley, 414 So. 2d at 899.[3]
*1121 Similarly, in Parrish, this Court found material a change in the method of appointment of the license commissioner of Houston County. The published notice informed the public that the office would be filled by an appointing board composed of three designated officials. The act as passed provided that the office would be filled by qualified electors. This Court did there hold that this changed the method of selection and was substantial.
Here, four directors are selected in exactly the manner specified in the notice published with respect to the Act. Thus, the deviation relating to the selection of the fifth commission member is merely a change in detail and not a material alteration in the substance of the Act.
The published notice made no mention of the imposition of a state tax on pari-mutuel wagering. The Act provided that after the horse racing facility had operated for five years, holders of licenses issued by the racing commission would be subject to a tax. None of the revenue collected by the racing commission, however, is subject to a tax.
It seems reasonable to assume that, given the notice to the public that one feature of the act was to raise revenue, the public was adequately placed on notice that the state would have an interest in taxing pari-mutuel wagering on horse racing. We can assume that one of the major reasons for enacting legislation permitting horse racing in the state was the belief by the legislature that this would bring additional revenue into the state. "If the details are not published but only the general nature of its substantive features, the public is put upon inquiry as to such details, and bound by a failure to inform itself, continuing through such changes and amendments as may stay within such substantive features as published." State ex rel. Wilkinson v. Allen, 219 Ala. 590, 593, 123 So. 36, 38 (1929). In any event, not informing the public of a tax to take place in the future, under these facts, does not change the substance of the act itself, and is not material. See, Opinion of the Justices No. 303, 435 So. 2d 731 (Ala.1983). The primary purpose of the act was to authorize horse racing and pari-mutuel wagering thereon. The addition of a tax does not substantially affect the purpose of the act.
Similarly, the omission from the notice of a detailed listing of the recipients of the net revenues of the racing commission is not material. The notice states that such net revenues will be distributed to various governmental and private, not-for-profit entities. Thus, any interested citizen is put on inquiry concerning the details of this distribution. In any event, the act is intended to provide a means for permitting and regulating horse racing and pari-mutuel wagering in Class I municipalities and is not primarily intended to provide funds for the various governmental bodies and public or private institutions and organizations. Thus, the allocation of the net revenues of a commission does not constitute a material feature of the Act which would require the details thereof to be stated in the public notice.
Finally, appellant Phalen argues that material omissions arise from the failure of the notice to specify the powers of the commission and the conditions under which the commission can grant licenses. This is not a material omission, because the published notice summarized all of the important *1122 features of the powers of a racing commission created under the act with respect to the licensing, regulation, and supervision of horse racing and pari-mutuel wagering thereon. Moreover, the act does not itself comprehensively state the conditions under which horse racing and pari-mutuel wagering can be conducted, but the act specifically empowers a commission to determine such conditions in the exercise of its power to make rules and regulations. The notice stated that the proposed law would determine such conditions or give a commission the authority to determine them, and the act was consistent with this notice.
Although the trial court held that the act as a whole does not violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, it found that Sections 37, 39, and 40 of the Act (Code 1975, §§ 11-65-37, -39, and -40) do violate the equal protection clause by defining certain crimes which are not applicable to the entire state.
The Birmingham Turf Club filed a cross-appeal in which it challenged the correctness of the trial court's decree in this respect. The crimes in question are not limited to the sponsoring municipality in which a racing facility may be located, but encompass many acts that may be performed anywhere in the state of Alabama. Section 37 of the act prohibits the holding of a horse race or the conducting of pari-mutuel wagering, except pursuant to a license as prescribed in the act. Section 39 of the act prohibits the fixing of horse races and tampering with, or administering drugs to, horses participating in a licensed horse race. Neither Section 39 nor 40 is limited by its terms to acts committed within the corporate limits of the sponsoring municipality, but those sections prohibit such acts everywhere within the state of Alabama. Section 40 of the act regulates the transmission of information concerning horse races and prohibits the use of information acquired at a licensed racetrack in furtherance of illegal gambling purposes. Although the transmission of prohibited information requires physical proximity to a licensed horse racing facility, the receipt and use of such information does not. Thus, the act prohibits such illegal use of information anywhere within the state of Alabama. Equal protection considerations do not apply to Sections 37, 39, and 40 of the act, because these sections apply throughout the state of Alabama.
Prior to the establishment of population classes in § 11-40-12, general acts of local application related to dog racing contained similar criminal provisions. For example, Section 14 of the Mobile dog racing act (Act No. 2431, Ala. Acts 1971) made violations of pari-mutuel betting restrictions a misdemeanor with a fine of up to $500 and imprisonment for up to six months. Section 20 made the holding of unlicensed races a misdemeanor with a fine of $100 to $1,000 and/or imprisonment from 15 days to 6 months. Predetermining the results of a race (Section 22, Act No. 2431) and illegally transmitting racing information (Section 23 of Act No. 2431) were made felonies carrying a sentence of 1 to 10 years and/or a fine of $1,000 to $5,000.
Violations of the act providing for private game preserves in counties having populations of 300,000 to 500,000 was made a misdemeanor by Act No. 525, Ala.Acts 1967, p. 1256.
Many other examples abound in the general statutes of local application passed by the Alabama legislature prior to the adoption of Amendments 375 and 397. It is inconceivable that Amendment 397 was intended to prevent the population-class legislation authorized there as general laws "for any purpose" from containing appropriate criminal provisions which in practice had been included for many years in properly written general laws of local application.
Finally, because the act does not violate the equal protection clause by permitting horse racing and pari-mutuel wagering only in Class I municipalities, it does not violate the equal protection clause by defining *1123 crimes uniquely applicable to such a horse racing facility.
Logically, some regulation of the facility is necessary to insure that the races are honestly run, and to insure that the racing commission's licensing powers are not usurped. These criminal provisions provide this protection for the public. Consequently, that portion of the trial court's judgment which severed these provisions from the act is due to be reversed.
AFFIRMED, IN PART; REVERSED, IN PART.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, BEATTY, ADAMS[*] and HOUSTON, JJ., concur.
[1] While Belcher concerned an act applicable to counties, the same rationale has been applied to acts which covered cities as well. See, City of Birmingham v. Samford, 274 Ala. 367, 149 So. 2d 271 (1963).
[2] Peddycoart expressly held that if an act applies to only one subdivision when enacted, it is local. All parties in this case, except the Cope Appellants, agree that this is the holding of Peddycoart. Had Peddycoart stated what the Cope appellants contend, there would have been no need for the legislature to amend Section 110.
[3] For a discussion of the difference between a "detail" and "substance," see the dissenting opinion of Maddox, J., in Birmingham-Jefferson County Civic Center Authority v. Hoadley, 414 So. 2d at 900.
[*] Although Justice Adams did not sit at oral argument, he has listened to the tapes and has studied the briefs. | November 22, 1985 |
98d89ccd-1be2-480a-9cca-c350fb11d8c2 | Continental Telephone Co. v. ALA. PUB. SERVICE COMMISSION | 479 So. 2d 1195 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1195 (1985)
CONTINENTAL TELEPHONE COMPANY OF the SOUTH
v.
ALABAMA PUBLIC SERVICE COMMISSION; Jim Sullivan as its President; Lynn Greer, Associate Commissioner; and Jim Folsom, Jr., Associate Commissioner.
Governor George C. WALLACE, By and Through the PUBLIC STAFF FOR UTILITY CONSUMER PROTECTION
v.
ALABAMA PUBLIC SERVICE COMMISSION; Jim Sullivan as its President; Lynn Greer, Associate Commissioner; and Jim Folsom, Jr., Associate Commissioner.
83-1419, 84-48.
Supreme Court of Alabama.
October 4, 1985.
Rehearing Denied November 8, 1985.
*1197 John E. Grenier and Janet W. Taylor of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant Continental Telephone Co. of South (83-1419).
Euel A. Screws, Jr., Laveeda Morgan Battle, Amy Watson Stewart, and Wendell Cauley, Montgomery for appellant Governor's Public Staff for Utility Consumer Protection (84-48).
Stephen L. Skipper and Robert M. Hill, Jr. of Hill & Young, Florence, and William J. Samford, Jr., Susan Shirock DePaula, and Robert F. Smith of Pappanastos, Samford, Roberts & Blanchard, Montgomery, Charles A. Graddick, Atty. Gen., and Robert L. Rash, Asst. Atty. Gen., for Alabama Public Service Comm. (83-1419).
PER CURIAM.
This is an appeal by Continental Telephone Company of the South and a crossappeal by Governor George C. Wallace by and through the Public Staff for Utility Consumer Protection from an order of the Alabama Public Service Commission. The appeals were taken pursuant to the provisions of Code 1975, § 37-1-140.
On January 17, 1984, Continental Telephone Co. filed a proposed rate schedule with the Alabama Public Service Commission, requesting a rate increase of $6,547,990. After a hearing, at which the Governor's Public Staff for Utility Consumer Protection (Public Staff) and the Alabama Attorney General intervened, the APSC granted Continental a rate increase of $367,352. Continental and the Public Staff petitioned the APSC for reconsideration[1] and, after the APSC took no action on their petitions, appealed to this Court, pursuant to the provisions of Code 1975, § 37-1-140. Continental applied for supersedeas, which, after oral argument, this Court granted in the amount of $1,573,359.[2]
In its brief, and at oral argument, Continental vigorously insisted that it was deprived of due process of law during the hearings before the Commission. Continental contends that because it was denied due process, the Commission's order should be declared to be null and void and "the schedule of rates which Continental filed with the Commission should take effect as a matter of law."
Continental submits that three distinct violations of its rights to due process occurred in this proceeding, and claims that one of those violations also was a violation of the doctrine of separation of powers, and that each violation was independently sufficient to require that the Commission's final order be vacated.
The alleged violations include:
(a) the Attorney General's participation as both an adversary party-intervenor and an advisor to the Commission, through an assistant Attorney General;
(b) the Public Staff's adversary party participation in the proceedings on behalf of the Governor, because the Public Staff is merely a part of the Commission, and cannot be separated from the Commission; and
(c) the intrafamily relationship between the director of the Public Staff and a staff member of the Commission in violation of the basic ethical principle prohibiting conflicts of interest.
Similar "due process" claims were raised by Continental in its last appeal of a rate order. Continental Tel. Co. v. Alabama Pub. Serv. Comm'n, 427 So. 2d 981 (Ala. 1982). There, this Court discussed the "due process" claims, with a caveat that "we should not be understood as holding that the Public Staff had any legal status *1199 as a party." 427 So. 2d at 997. Justice Shores specially concurred, as follows:
Joining her special concurrence were Chief Justice Torbert and Associate Justices Jones, Almon, and Embry. After issuance of this opinion, and apparently in response to the statements made in the opinion concerning the legality of the Public Staff's participation in that proceeding, Governor George C. Wallace and the Commission took actions regarding the Public Staff.
On September 20, 1983, the Governor signed Executive Order No. 17, establishing a "Public Staff in the Executive Branch of State Government of the Governor." Along with giving it other duties, Executive Order No. 17 instructed the Public Staff to "(3) draw from the Public Service Commission persons who are trained and experienced in rate making techniques and procedures with such persons' compensation funded by the Public Service Commission."
On December 3, 1983, the Commission issued a General Order which placed the Commission's Trial Staff "on loan" to the Public Staff for Utility Consumer Protection. The General Order stated that the loaned individuals would remain employees of the Commission and lose no rights, benefits, or compensation because of the transfer. The Commission further committed itself to fund the Public Staff and to employ additional individuals to assign to the Public Staff. Finally, the General Order provided that if the Public Staff is abolished or ceases to exist, the loaned personnel shall return to comparable positions within the Commission.
Continental thought that the Governor was without authority to issue the executive order, and that the Commission was without authority to take the action it took regarding the Public Staff, and, based upon its belief that its constitutional rights were being violated, moved to strike all the evidence presented by the Public Staff.
Governor Wallace argued, in response to Continental's motion to strike all evidence presented by the Public Staff, that his Executive Order No. 17, and the Commission's General Order of December 5, 1983, corrected the concerns specially addressed by Justice Shores in the 1982 Continental case. Continental disagrees, and we are constrained to hold that the actions taken by the Governor and the Commission did not solve the constitutional infirmities pointed out by this Court in the 1982 Continental case.
We are of the opinion that the Commission, by loaning its Trial Staff to the Governor under a new name, the Public Staff, merely attached a new label to a part of its personnel and attempted to clothe its personnel with a legal identity beyond what it wasthe Commission's Staff. In the Commission's General Order itself, the Commission states:
*1200 It seems clear that the Public Staff is merely the Commission Staff, or former Trial Staff, under a new label.
It is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases, but our system has always endeavored to prevent even the probability of unfairness. In the 1982 Continental case, this Court recognized that due process was required in Commission proceedings and outlined a remedy for denial of due process. There, this Court said:
See also, Ex parte Alabama Textile Manufacturers Ass'n, 283 Ala. 228, 215 So. 2d 443 (1968); Ex parte Alabama Pub. Serv. Comm'n, 268 Ala. 322, 106 So. 2d 158 (1958).
Because we find that Continental's "due process" rights were violated, we have no choice but to insure that Continental will be accorded "due process." We elect to remand the cause to the Commission under the authority granted to this Court by Code 1975, § 37-1-143, for the purpose of conducting further proceedings as we shall hereinafter direct. Code 1975, § 37-1-143, provides, in part, as follows:
We believe that a remand of the cause will accord to Continental those "due process" rights to which it is entitled. Consequently, we refuse to void the order of the Commission, as Continental requests. Because of the action we take, we find it unnecessary to address the "separation of powers" argument Continental makes. Furthermore, because of the disposition we make on Continental's "due process" claim with regard to the Public Staff, we need not decide whether Continental's claim that its "due process" rights were also violated because the Attorney General participated as both an adversary party-intervenor and as an advisor to the Commission, through an assistant attorney general. Additionally, we pretermit any discussion of Continental's claim that the intrafamily relationship between the Director of the Public Staff and a staff member of the Commission violated ethical principles prohibiting conflicts of interest.
Even though we elect to remand the cause for "further proceedings," we have, nevertheless, reviewed Continental's claims on the merits, and, to facilitate the process on remand, we include our observations, which the parties may use and which the Commission may consider and apply. In reviewing the merits of Continental's claims, we have considered all the evidence and all the arguments, because we believe that such a review will assist the Commission and the parties in the proceedings on remand.
In reviewing the merits of Continental's claims of confiscation, we have applied the *1201 scope of review which is clearly delineated in the last appeal to the Court by Continental:
Continental Telephone v. Ala. Pub. Serv. Comm'n, 427 So. 2d at 984-985.
Continental claims that the final order of the Commission results in confiscation of its property. If shown, of course, confiscation of a public utility's property is violative of basic constitutional rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Sections Six and Thirteen of the Alabama Constitution. Alabama Pub. Serv. Comm'n v. Southern Bell, 253 Ala. 1, at 12-13, 42 So. 2d 655, 663 (1949).
In determining whether confiscation is shown, we necessarily consider the elements of a rate case. In this connection, this Court has determined, "There is no way to determine whether a rate is fair, reasonable, and non-discriminatory except to examine the elements of which it is composed." Southern Bell, supra, 253 *1202 Ala. at 16, 42 So. 2d at 666. More recently, the Court has stated that this review "must include an examination of all the elements of which it is composed." Alabama Power Co. v. Alabama Pub. Serv. Comm'n, 390 So. 2d 1017, 1025 (Ala.1980) (emphasis added).
A rate case is composed of four essential elements: the rate base, capital structure, rate of return, and operating results. An analysis of the Commission's final order and the treatment of the elements of this rate case will indicate whether the order is unconstitutionally confiscatory, as alleged by Continental.
In its brief, and at oral argument, Continental called our attention to two principal areas wherein it says the Commission's order is confiscatory, viz.: "Inside Wire" and "Intrastate Toll Revenues."
These two issues were the only ones raised by Continental in its petition for reconsideration filed with the Commission.
In its brief, Continental summarized its argument on the adjustments involved in these two issues and other adjustments, as follows:
In order to determine whether confiscation occurred, we will address each issue as to which Continental claimed confiscation occurred.
As pointed out above, Continental claims that it requested the Commission to deregulate "inside wire," but that the Commission refused the request, and, in addition, failed "to restore to the calculation of operating income, the expenses and income related to inside wire."
The Public Staff, in its brief, does not specifically address the issue of the Commission's treatment of "inside wire."
The Attorney General, while stating in his brief on Continental's application for supersedeas that Continental appeared to be entitled to $364,021 in additional revenues, in his brief on the merits, argues:[3]
The Commission makes a similar argument:
Although the Attorney General attaches a copy of the order issued in APSC Docket 18480 as an appendix in its brief, and the Commission, in its order, bases its decision on the requirements of the order in APSC Docket 18480, we fail to find any reference in the briefs or the Commission order to the portion of the record where this order is a part of the record in this case.
Continental, in its reply brief, states as follows:
Continental does, in fact, then analyze the effect of the "18480 order" and argues that it is not applicable and that "[t]he Commission has never suggested, until the filing of the brief in this case, that Continental was not in compliance with the 18480 order or that Continental file any tariff regarding inside wire, nor is there a reference to a tariff filing in the 18480 order." Whether applicable or not, we are constrained to limit our review to the Commission order itself, which appears to have been based upon one of its prior orders which was not made a part of the proceeding then before it; therefore, based upon the evidence produced by Continental during the proceeding, we hold that the Commission erred in its treatment of the "inside wire" adjustment.
We find that Continental has shown that the final order of the Commission is confiscatory and that an amount of $185,875 must be deducted from net operating income and, after application of the retention factor of .510616, the amount of $364,021 must be added to the new rates allowed Continental in this case.
As previously pointed out, Continental claims that the portion of the Commission's final order with respect to intrastate toll revenues is erroneous because the Commission used 1983 data instead of 1984 data in computing the amount of revenue Continental would receive by means of "access charges," which mathematically are a product of the number of minutes of use (MOU) that Continental's telephone equipment is used in completing long distance calls and Continental's rate to the long distance carrier for the use of its facilities, this rate being called the common carrier line charge.
Continental challenges the Commission's computation of total test year MOU, contending that the Commission should have used a computation made by one of Continental's witnesses. In order to understand the Commission's computation of test year MOU, it is helpful to be familiar with the chronology of the testimony respecting this issue.
The question of estimated intrastate MOU first arose in a generic docket on access charges which the Commission instituted to permit all telephone companies operating in Alabama to put into place access *1206 charges to take effect on the divestiture of the Bell System so that these companies would continue to receive long distance revenues. Docket 18908. In that docket, in estimating its 1984 MOU for the purpose of establishing its access charges to take effect on January 1, 1984, Continental represented to the Commission that its estimated 1984 total intrastate minutes of use would be 136,417,104. (Commission Exhibit 32 in this case, Docket 18978.)
The company's initial witness on this subject in this case, Mr. Boccucci, presented an estimate which was lower than the company's estimate presented in the generic access charge docket, his estimate of 1984 total intrastate minutes of use in this docket being 127,369,509. Mr. Boccucci was unable to explain the differences between the Company's estimated 1984 minutes of use in docket 18908 and his estimate in the present docket, 18978, or to reconcile the two estimates.
The Governor's Staff's witness, Mr. Larkin, in computing the Company's estimated 1984 intrastate toll revenue, used the estimated 1984 minutes of use which the Company had presented in docket 18908, 136,417,104. Mr. Larkin used 136,417,104 because this number had been computed using the 1982 actual minutes of use increased by an estimated 8% rate of growth in intrastate long distance calling between 1982 and 1984, which Mr. Larkin stated was a reasonable growth estimate. In rebuttal, the Company presented the testimony of yet another witness, Mr. Yaconis, who claimed to have computed his estimate of 1984 intrastate toll revenue based on an annualization of actual MOU for the first five months of 1984, his estimate being 107,980,000. After filing his rebuttal testimony, Mr. Yaconis submitted a revision of his estimate of 1984 total intrastate MOU to 110,209,000. The parties disagree on the reason for the revision, but we find that this disagreement does not affect our treatment of the legal issue presented.
The Commission rejected all of the specific computations offered by the various witnesses, electing to utilize the 1983 actual minutes of use of 124,693,000 increased by 8% for estimated growth between 1983 and 1984 to 134,668,444. It is the Commission's use of the 1983 actual minutes of use increased by 8% for estimated growth rather than Mr. Yaconis's final estimate of 110,209,000 which Continental contests, alleging in its brief that "the latest data available should be employed in setting rates" and that "there is nothing in the record to suggest the actual 1984 Continental data on intrastate MOU is not accurate or unverifiable." It is the last stated contention that is at issue.
The Public Staff takes the position that the Commission's rejection of the Company's 1984 actual experience was "reasonable." Continental says this position is contrary to the one taken by the Public Staff earlier. Continental argues:
The principal argument of the Governor and the Attorney General is that Continental substantially changed its estimates during this proceeding, and in hearings specifically set by the Commission to consider access charges in Docket 18908. Continental answers these arguments, as follows:
The Commission argues that "any consideration of access charge rates has been separated into a separate inquiry [Docket 18908] and any further consideration of such rates should be addressed in that case."
We first address the principal question presented to us, and that is whether the following finding by the Commission is erroneous:
Like the Commission, we are aware that because of the implementation of divestiture and the FCC charge plan the Commission has a difficult job in setting rates which are reasonable and fair, as mandated by the Code of Alabama, but the Commission, and this Court, must deal with the realities of divestiture in the telecommunications industry.
The Commission found that the testimony of Mr. Yaconis regarding the 1984 MOU was inaccurate. We do not find that determination substantiated in the record. The Public Staff and the Attorney General attempt to uphold the finding by claiming that prior estimates of MOU by the company itself showed the inaccuracy of the 1984 actual data. Logical reasoning would say that proof of an actual amount would not be shown to be inaccurate by proof that prior estimates were different from the actual results. Consequently, we cannot agree with the Commission's finding on MOU. The Commission's other finding that any revenue deficiency caused by its finding could be adjusted in a pending docket should not prevent the recovery of this revenue deficiency in the subject docket. In General Tel. Co. of the Southeast v. Alabama Pub. Serv. Comm'n, 335 So. 2d 151, 158, 159 (Ala. 1976), this Court said that "[E]laborate calculations which are at war with realities are of no avail," and that "The law is well-settled that the Commission may not rely upon a reckoning when actual experience is available and establishes that the predictions have been substantially incorrect," and further that "To prefer the forecast to the survey is an arbitrary judgment." As the Commission pointed out, and as we are aware, divestiture had a tremendous impact on the telecommunications industry; therefore, the principles above enunciated regarding forecasts and actual experiences take on added significance, especially during the phase-in of divestiture. We hold, therefore, that the Commission order with regard to intrastate toll charges can be handled in those proceedings. "If rates are prospective, they must correspond to the actual needs of the company during the time they are in effect." Continental Telephone Co. of the South v. Alabama Pub. Serv. Comm'n, 427 So. 2d 981, 991 (Ala.1982). If the "actual" data is flawed because it was annualized based on only six months of experience, this fact could be the subject of a special hearing after remand. Cf. General Tel. Co. of the Southeast v. Alabama Pub. Serv. Comm'n, supra.
The Company, although relying on the foregoing two principal issues, nevertheless, argues that several other adjustments to the rate base and operating income resulted in confiscation. We will address each issue separately.
Continental claims that its earnings are being eroded because it is adding new investments at unit costs in excess of average unit costs. The Company argues:
38 PUR 4th at 556.
"648 P.2d at 41."
The Commission and the Attorney General counter that the traditional use of the "test year" is reasonable and takes into account known and measurable changes in the company's rate base. The Public Staff takes the position that "an attrition adjustment, such as the company has proposed, which projects plans into the future, is in direct contradiction to the mandate set out by our legislature in the 1978 amendment to § 37-1-80, Code of Alabama (1975), as amended." The Public Staff argues:
While we find that the Company has not shown error in this case, we do not agree that the Commission cannot, or should not, consider an adjustment for attrition, if shown by the proof offered. Code 1975, § 37-1-80, even as amended, still states as follows:
If a utility can show that it is managing the business of the company honestly, efficiently, and economically, or stated differently, that there is no showing of poor and uneconomical management, and can show that it needs to enlarge its plants, facilities, or equipment in order to "provide ... adequate service," then in determining a just rate of return the Commission "shall give due consideration" to those requirements. Code 1975, § 37-1-80. Having said this, however, we do not find that the Commission erred in this case in finding that the forecast adjustments were not verifiable; consequently, we affirm the final order of the Commission disallowing an adjustment for attrition. By affirming the order of the Commission, however, we do not hold that attrition will not occur. If it does, the Company can file a new request with the Commission, which it has done. If the Commission prefers to have periodic hearings, with their consequent cost and expense, which ends up costing ratepayers and the public at large, then that is a legislative choice.
During oral argument on the Company's request for supersedeas, counsel for the Company told us that "inflation is the principal reason we are here" and asked that we allow an adjustment for inflation or the Company would be back "next year." As we have already pointed out, the Company has already filed a new rate request with the Commission; therefore, the Company has fulfilled its forecast. The Company, on this appeal, asks us to adopt the reasoning of the Oklahoma Supreme Court in Lone Star Gas Co. v. Corporation Comm'n of Oklahoma, 648 P.2d 36 (Okla.1982), on the question of attrition and inflation.
In Lone Star, a natural gas utility appealed from an order of the corporation commission which had denied its request for a rate increase. The Court addressed the issues of attrition, inflation, and regulatory lag, as follows:
We could, of course, reach a similar result in this case, but we do not, because the aggrieved Company can, as many other utilities have during the past two decades, file repeated requests with the Commission for rate relief, and, thereby cut down some on regulatory lag.
As we stated earlier, we are not holding that the Company will not suffer increased expenses, only that we do not feel compelled, especially in view of the separation of powers doctrine, to usurp the powers of the Commission as the ratemaking agency. Furthermore, there is an obligation, spelled out in our rate-making statutes, that utilities should operate honestly, efficiently, and economically. Code 1975, § 37-1-80. For us to require the Commission to make an adjustment for inflation automatically would not encourage utilities to take positive steps to reduce and minimize expenses to deal with the problem of inflation.
The Company proposed certain adjustments to test year payroll expenses. The Commission allowed an adjustment for the 1984 wage increases, but denied an adjustment for proposed wage and salary increases for non-union and management employees for 1985. In Alabama Gas Corp. v. Alabama Public Service Comm'n, 425 So. 2d 430 (Ala.1982), this Court held at 435:
We recognize that the circumstances of each case can vary, but there is no measurable difference in the circumstances of this case and those of the last Continental appeal. We hold, therefore, that the Commission erred in disallowing Continental's proposed adjustment for payroll expenses.
Continental made two separate and distinct adjustments to the September 1983 *1212 annualized revenue generated from customer premises equipment ("CPE"). These adjustments reflect (1) the anticipated continued erosion of the terminal equipment lease base, and (2) the anticipated effect of Continental's aggressive single line set sales plan.
The Commission rejected the second adjustment based on the proposed sales plan, and Continental did not appeal this action of the Commission.
The Commission accepted the first Continental adjustment, but limited the adjustment to April 1984. Continental claims that the Commission should have carried the adjustment through February 1985, the midpoint of the first year of new rates, arguing that since the CPE marketplace was opened to competitive supply, Continental has suffered significant customer migration away from Continental-provided leased terminal equipment and a corresponding erosion of revenue derived from that terminal equipment.
We cannot say the Commission erred in disallowing an adjustment for CPE to reflect the alleged "expected level of CPE revenue in the first year of new rates"; therefore, the Commission's order is due to be affirmed in this respect. As pointed out earlier, the Company has filed a new rate proceeding. Actual experience under this rate order will be available in that proceeding. Experience may, or may not, show the Company's projections were accurate, but we cannot, pursuant to our scope of review, overturn the Commission's finding.
The Commission entered the following order in connection with the item "Imputed Interest on JDIC":
The Attorney General, in his brief, states the purpose of the Commission's order, as follows:
In its brief, the Commission recognizes that "[t]here is substantial dispute as to whether the interest synchronization methodology utilized by the Commission (re: leaving JDIC in the rate base for the purpose of computing interest synchronization) violated the provisions of Internal Revenue Code § 46," but the Commission claims that several regulatory bodies and courts have included JDIC in the interest synchronization adjustment "with apparently no negative tax consequences to the utilities involved."
The Company, of course, says that if the order stands, "it is clear that the Internal Revenue Service will disallow the investment tax credit, thus costing the customers of Continental substantial sums of money."
Continental also claims that the Commission's method of treating JDIC is inconsistent with past Commission practices, and jeopardizes its ability to take JDIC in the future. Because the Commission itself recognizes that "[t]here is a substantial dispute" whether its treatment of JDIC violates the Internal Revenue Code, we are constrained to hold that the Commission's order is erroneous. We addressed this issue in Continental's last rate appeal, as follows: "[W]hile stare decisis does not apply to decisions of administrative agencies such as the Public Service Commission, consistency is essential if arbitrariness is to be avoided." Continental Tel. Co. v. Alabama Pub. Serv. Comm'n, 427 So. 2d 981, 993 (Ala.1982).
Continental claims that the evidence does not support an award of less than 16% on equity and 11.3% on overall rate of return. We disagree. We believe that the Commission's finding that Continental was entitled to a return on common equity of 14.65% and an overall rate of return of 10.99% is reasonable. We are not convinced, however, that the order entered by the Commission will produce these rates of return.
In response to our order on supersedeas, the Company has filed three separate reports which the Company claims represents the actual experience of the Company under supersedeas. These reports are attached as appendices A, B, C, D, E, and F to this opinion. Of course, these reports are not part of the record in this case, and the opposing parties have not had an opportunity to cross-examine witnesses who prepared the reports or to verify them from the Company records. Nevertheless, if the reports accurately reflect current experience of the Company, we are faced with a situation similar to that which we faced in General Tel. Co. of the Southeast v. Alabama Pub. Serv. Comm'n, 335 So. 2d 151 (Ala.1976). There, this Court, faced with *1214 conflicting evidence based upon the same record, determined that actual experience under the order would be the best evidence. In the General Telephone case, we said we would remand a case when we found it "expedient" to do so.
The Commission, on remand, is instructed to reopen the hearing within 60 days after receipt of the certificate of judgment of this Court for the purposes of making the determinations we have set out in this opinion. In the meantime, the supersedeas order made in this Court, and the bonds given pursuant thereto, shall remain and continue in full force and effect until final disposition of this cause. General Tel. Co. of the Southeast v. Alabama Public Service Comm'n, supra.
On remand, the Commission can consider, as it did in General Telephone, whether the actual experience of Continental produced the rate of return which the Commission itself found to be "reasonable." Because we hold that the Public Staff should not have participated in the proceedings, the Commission is directed on remand to exclude all evidence and arguments of the Public Staff, and to determine, without reference to that evidence or those arguments, whether Continental is entitled to receive revenues in addition to those allowed, but in no event to exceed an amount of revenue necessary to produce a reasonable rate of return.
The Governor's Public Staff for Utility Consumer Protection filed a cross-appeal and alleged that the Commission's final order contained mathematical and legal errors, which the Public Staff claims, if corrected, would reduce the Company's revenue requirement by $690,212, creating a revenue excess of $322,860.
Specifically, the Public Staff contends that the Commission erred in computing the rate base interest synchronization adjustment, and failed to consider evidence which showed Continental received more revenue than the Commission found was received during the test period attributable to the interestate phase-out of "customer premise equipment."
Because of our holding on the "due process" claim, we refuse to consider the Public Staff's cross-appeal.
We are aware that the divestiture of AT & T has had a tremendous impact on the telecommunications industry and that regulatory agencies such as the APSC and the various telephone companies have had to live through a period of some uncertainty because of the divestiture. Hopefully, time will help to settle some of the uncertainties in the industry.
The policy of the legislature, and the constitutions of both the federal and state governments, provide that when a company's property is devoted to public use, the Company is entitled to a fair rate of return. Although there have been disagreements over the years on the question of what is a fair rate of return, most appeals in rate cases have involved complex accounting adjustments and approximations on which conclusions by experts have differed, and this Court has been called upon to resolve the disputes.
As this Court said in General Tel. Co. of the Southeast v. Alabama Pub. Serv. Comm'n, supra, at 156:
As we view the law, a utility is under a duty to provide adequate service to the public; it is to manage its business honestly, efficiently, and economically. If the *1215 company performs these functions, it is entitled to a rate of return which will be fair to it and fair to the consuming public.
Those basic, simple rules should govern the Commission, the parties, and this Court, as we carry out our responsibilities under the laws and constitutions to which we are all bound.
83-1419 AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.
84-48 AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
*1216 APPENDIX A
*1217 APPENDIX B
*1218 APPENDIX C
*1219 APPENDIX D
*1220 APPENDIX E
*1221 APPENDIX F
PER CURIAM.
The Honorable George C. Wallace, as Governor, as an intervenor in this case, has requested a rehearing in this cause, and makes the following claims:
Regarding the "due process" claims, the Governor claims that the record on appeal was inadequate to support Continental's claims of "due process" violations, and that this Court ignored statutory provisions which authorized the Governor to intervene in the proceeding, hire attorneys, and present evidence. Specifically, the Governor says that "the Court failed to address the provisions of Section 37-1-18, Code of Alabama that the Consumer Utility Rate Hearing Fund may be ... drawn upon by the chairman of the public service commission, the governor, and the attorney general for purposes of hiring attorneys, public service commission staff personnel, and expert witnesses to present the case for the consumer in utility rate increase hearings and all appeals arising therefrom."
After reviewing the Governor's contentions, we are still of the opinion that Continental adequately demonstrated that it was not accorded "fundamental fairness" in the rate hearing; therefore, we are of the opinion that the Governor's application for rehearing on the "due process" issue is due to be denied.
The Governor, in his brief, claims that this Court's "holding" regarding JDIC is erroneous, as a matter of law. Because we addressed the issues raised by Continental on appeal, we can understand how the Governor construed our opinion as being a "holding" on that question. The opinion states, however, as follows:
As pointed out by us in our original "observations," the Commission, in its brief, admitted that there were substantial disputes whether the interest synchronization methodology utilized by the Commission would violate provisions of the Internal Revenue Code. The Governor claims that a proposed Federal Treasury regulation issued after this case was appealed conclusively shows thatthe Commission's treatment of JDIC will not violate the Internal Revenue Code. On remand, the parties, of course, may present evidence or authority in support of their respective positions on this question.
OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., not sitting.
[1] In its petition for reconsideration, Continental requested the Commission to reconsider the "Commission Final Order" solely with respect to:
1. Inside Wire. Continental did not request reconsideration of the Commission's denial of Continental's request to deregulate inside wire, but submitted that the "Commission Final Order" was incorrect in calculating the mathematical effect of such denial upon income available for return.
2. Intrastate Toll Revenues. Continental submitted that the Commission should use the minutes of use ("MOU") actually tabulated by Continental in 1984 and submitted in this case by the testimony of William A. Yaconis, a witness of Continental. Continental requested reconsideration only of the MOU employed in the calculation and did not request reconsideration of any other aspect of the "Commission Final Order" concerning intrastate toll revenues.
The Public Staff requested the Commission to reconsider the calculation of access charges related to intrastate toll revenues and the customer premises equipment ("CPE") interstate offset.
[2] Telephone Company of the South (Continental) on September 17, 1984, filed its application pending appeal pursuant to Section 31-1-141 [should have read 37-1-141] and Section 31-1-127 [should have read 37-1-127] through 128, Code of Alabama 1975, as amended to supersede the order of August 16, 1984, of the Alabama Public Service Commission (Commission), APSC Docket No. 18978, and to allow Continental to charge and collect the increase in its rates as filed with the Commission in this cause.
"The application states, under oath, that the estimated approximate amount by which Continental revenues will be increased in six months by reason of the increased rates and charges sought is $3,179,413 (approximately $6,226,624 annually).
"The application for supersedeas being argued and submitted and duly examined,
"IT IS CONSIDERED by the Court that, pending appeal of this cause, Continental is entitled to have the order of the Commission superseded to the extent that the company may charge and collect, pending appeal, at a rate that will produce an additional annual increase in revenues of $1,573,359 over the $366,985 [should have read $367,352] annual revenue increase awarded by the Commission, the Court being of the opinion that Continental has established its need for supersedeas in the following categories, and in the following amounts:
"IT IS, THEREFORE, ORDERED that Continental file with the Commission, pending appeal, a schedule of rates and charges which will produce an additional annual increase in revenues of $1,573,359 over the annual amount awarded by the Commission in its order of August 16, 1984, and that Continental shall state, in writing, under oath, to this Court the approximate amount by which its revenues will be increased in six months by reason of such rates, pending appeal, pursuant to this order.
"IT IS FURTHER ORDERED that Continental file with this Court a report as hereinafter prescribed on or before February 18, 1985, reflecting the experience of Continental for the preceding three months. Additional reports shall be filed with the Court monthly thereafter during the pendency of this appeal.
"The reports required to be filed shall contain the following computations:
"1. The annualized rate of return to equity collected under supersedeas as granted by this Court.
"2. The annualized rate of return to equity under the Commission's order without supersedeas in any amount.
"3. Compute the annual rate of return to equity under full supersedeas.
"All filings made pursuant to this order shall be made available to all of the parties to this cause.
"It is noted that Continental has filed its supersedeas bond in this cause on September 17, 1984. Said bond is hereby approved."
[3] In his brief on supersedeas, page 8, the Attorney General said: "Whatever the method employed, it would appear the company is due $364,021 in additional revenues." | October 4, 1985 |
ca275774-faba-49a4-a22b-3e4d07b32a23 | Ex Parte Dowling | 477 So. 2d 400 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 400 (1985)
Ex parte Joseph DOWLING.
(In re Joseph DOWLING v. James Celso PURVIS).
84-947.
Supreme Court of Alabama.
October 4, 1985.
*401 William W. Watts of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for petitioner.
Thomas M. Haas and Christopher Knight of Haas, Byrd & Knight, Mobile, for respondent.
MADDOX, Justice.
This is a petition for a writ of mandamus to the Mobile Circuit Court in which petitioner requests that we order that court to vacate its grant of remittitur for the defendant/respondent James Purvis and reinstate its original judgment. We agree with plaintiff/petitioner Joseph Dowling that the court did not have authority to order the remittitur and, thus, we grant the writ.
Dowling originally sued Purvis for assault and battery, alleging that Purvis struck him several times in the face while Dowling sat in his car, causing serious bruises and lacerations. The jury returned a verdict in favor of Dowling and awarded *402 him damages of $10,697 on October 25, 1984.
On November 21, 1984, Purvis moved the court for a new trial, or, in the alternative, to require a remittitur. On December 14, 1984, the court granted a remittitur of $600 and denied the motion in all other respects. Dowling assents to this remittitur, and, had the matter ended there, this petition for mandamus would not be before this Court now.
On January 7, 1985, more than two months after entry of the jury verdict, Purvis moved the court to reconsider its order denying his earlier motion for a new trial. On February 1, 1985, without Dowling's consent, the court granted a further remittitur of $5,097 and court costs.
Dowling moved on February 22, 1985, to vacate the court's order of February 1 and to have the original verdict, less the remittitur of $600, reinstated. Dowling alleged that the order of February 1 was void because it was entered more than 30 days beyond the date of the original judgment, and, further, was granted without his consent. The court denied this motion on May 10, 1985.
Dowling filed a notice of appeal with the trial court and, in the alternative, filed this petition for a writ of mandamus. His appeal has been stayed by this Court pending resolution of this petition. The initial question, then, is whether mandamus is the appropriate remedy under these facts. We hold that it is.
Purvis contends that mandamus is improper here because the grant of his motion to reconsider did not reinstate the case for further proceedings. See, Ex parte State Farm Mut. Auto. Ins. Co., 276 Ala. 263, 160 So. 2d 879 (1964). However, mandamus is the proper remedy to vacate an order the trial court had no power to enter. See, Great Atl. & Pac. Tea Co. v. Sealy, 374 So. 2d 877 (Ala.1979). The facts of Sealy are very similar to the present case. There, Sealy was injured when his motorcycle collided with a car driven by Elizabeth Hagler. Hagler exited a shopping center parking lot directly in front of Sealy's motorcycle. Sealy sued her, her husband, and the Great Atlantic & Pacific Tea Co. (A & P), whose truck was parked, so as to obstruct Hagler's view of oncoming traffic. Prior to trial, the Haglers settled with Sealy for $10,000. The case continued to trial against A & P, and the jury returned a verdict in favor of Sealy for $185,000. Forty-two days after the entry of the judgment, A & P's counsel orally requested the trial court to amend the verdict, which the court did, reducing the judgment by $10,000, the amount of Sealy's settlement with the Haglers. After determining that the trial court had no authority to reduce the judgment, this Court agreed to issue a writ of mandamus if the trial court refused to reinstate the original verdict. Because we find that the trial court, in this case, had no power to grant the remittitur on February 1, 1985, mandamus is the proper remedy here as well.
While Purvis did not label his motion as one made pursuant to any particular rule, he now contends that his motion to reconsider was made pursuant to Rule 60(b)(6), Ala.R.Civ.P. In order for us to uphold the trial court's grant of the motion, we would have to construe it as one made under 60(b)(6). The time for a 59(e) motion had expired, and the grounds of 60(b)(1) through 60(b)(5) do not apply. Rule 60(b) states, in pertinent part:
A strong presumption of correctness attaches to the trial court's determination of a motion made pursuant to Rule 60(b), and the decision whether to grant or deny the motion is within the sound discretion of the trial judge, and the appellate standard of review is whether the trial *403 court abused its discretion. Pierson v. Pierson, 347 So. 2d 985 (Ala.1977). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court's decision will not be disturbed unless it is determined "that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust." Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala.1979), quoting Nunn v. Stone, 356 So. 2d 1212 (Ala.Civ.App.1978).
We are of the opinion that the writ should issue even if we treated Purvis's motion to reconsider as a Rule 60(b)(6) motion, which we decline to do, of course.
A Rule 60(b)(6) motion should be granted only in those exceptional circumstances when the party can show the court sufficient equitable grounds to be entitled to relief. Textron, Inc. v. Whitfield, 380 So. 2d at 260. The party making such a motion must meet two prerequisites before it is justified. First, the motion must be based on some reason other than those stated in 60(b)(1) through 60(b)(5), and, second, the reason urged for relief must be such as to justify relief. Ex parte Hartford Ins. Co., 394 So. 2d 933 (Ala.1981). There are no exceptional circumstances in this case to justify granting the motion, even if we construed it as a Rule 60(b)(6) motion.
Purvis cites Wilger v. Department of Pensions and Security, 343 So. 2d 529 (Ala. Civ.App.1979), to support his argument that we should view the motion as one made pursuant to Rule 60(b)(6). In Wilger, the trial court ordered that custody of six children be taken from their natural parents and placed with the Department of Pensions and Security. The issue to be decided was whether the motion to reconsider this order tolled the time for filing a notice of appeal. The Court of Civil Appeals held that while it did not toll the filing time, the order, under a liberal construction of the Rules of Civil Procedure, could be construed as a 60(b)(6) motion, the denial of which was itself appealable.
In Wilger, however, extenuating circumstances existed which justified this liberal construction. Between the filing of the parents' motion for a new trial and the filing of their motion to reconsider, a federal court had held unconstitutional certain pertinent sections of the statute under which the children had been found to be neglected or dependent. This information could not have been presented to the trial court in the parents' new trial motion.
In the present case, however, Purvis was aware, or should have been aware, of the facts alleged in his motion to reconsider at the time he filed his original motion for a new trial. Purvis presented practically nothing to the trial court that the court had not considered in its ruling on his first post-trial motion.
In Brown v. Martin, 394 So. 2d 375 (Ala. Civ.App.1980), cert. denied, 394 So. 2d 377 (Ala.1981), the Court of Civil Appeals refused to treat appellant's motion to reconsider an order denying his motion to set aside a default judgment as a motion for relief under either Rule 60(b)(1) or 60(b)(6):
Where the facts alleged in the motion to reconsider were known by the moving party at the time of his original motion, Rule 60(b) does not authorize a motion to reconsider. Thus, Purvis's motion to reconsider cannot properly be construed as a 60(b) motion. Druid City Hospital Board v. Nowlin, 475 So. 2d 469 (Ala. 1985).
The denial of a motion under Rule 59 or Rule 60 is usually appealable. That *404 avenue, then, should be pursued by an aggrieved party. A motion to reconsider cannot be used as a substitute for an appeal. See, Pace v. Jordan, 348 So. 2d 1061 (Ala. Civ.App.1977), cert. denied, 348 So. 2d 1065 (Ala.1977). This Court has been presented from time to time several instances when losing parties have attempted to get trial judges to reconsider action taken on their post-judgment motions. Most attempt to draft their motions to come within the provisions of Rule 60(b). In view of the fact that this case presents to us that situation, we take this opportunity to point out to the bench and bar that the Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge's ruling on his own post-judgment motion. However, in some cases such successive post-judgment motions may be permitted. If, for example, the judge has rendered a new judgment pursuant to a Rule 59(e) motion to alter, amend, or vacate a judgment or pursuant to a Rule 50(b) motion for judgment notwithstanding the verdict, the party aggrieved by the new judgment may have had no reason to make such a motion earlier. In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to "reconsider" the denial. Post-judgment motions made pursuant to Rules 50 and 59, Ala.R.Civ.P., should be properly styled: e.g., "Motion for New Trial," "Motion for Judgment Notwithstanding the Verdict." There is no post-judgment motion referred to in our rules as a "motion to reconsider."
The writ of mandamus is due to be granted.
WRIT GRANTED.
FAULKNER, JONES, ALMON, SHORES and HOUSTON, JJ., concur.
TORBERT, C.J., concurs specially.
BEATTY and ADAMS, JJ., not sitting.
TORBERT, Chief Justice (concurring specially).
I am in complete agreement with the majority opinion. My only purpose in writing specially is to briefly summarize and emphasize the holding of the Court.
If a party has his post-judgment motion denied, the review of that denial is by appeal. If a party has his post-judgment motion granted and a new judgment is entered, then the aggrieved party has the opportunity to file appropriate post-judgment motions. For example, see, A.R. Civ.P. 50(c)(2). | October 4, 1985 |
ec645385-03df-40da-9f96-d5570cd2e840 | General Motors Corp. v. Edwards | 482 So. 2d 1176 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 1176 (1985)
GENERAL MOTORS CORPORATION
v.
Robert J. EDWARDS, et al.
Robert J. EDWARDS, etc., et al.
v.
GENERAL MOTORS CORPORATION.
83-489, 83-510.
Supreme Court of Alabama.
November 15, 1985.
*1179 Brittin T. Coleman and Norman Jetmundsen, Jr. of Bradley, Arant, Rose & White, Birmingham and Byron Attridge and Chilton Davis Varner of King & Spalding, Atlanta, Ga., for appellant/cross-appellee, General Motors Corp.
R. Ben Hogan III of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, and George White, Gadsden, for appellees/cross-appellants.
MADDOX, Justice.
These appeals arise from an automobile accident resulting in the tragic deaths of two boys and severe burns to their parents. Most of the facts in this case were disputed at trial; from those not in dispute, we have distilled the following: On the night of April 18, 1981, Robert and Marion Edwards and their two sons, Kelvin, age seven, and Reginald, age six, were en route from Marion to Montgomery in a 1980 Chevrolet Chevette automobile, which Mr. Edwards had borrowed from his brother. Mr. Edwards drove; Mrs. Edwards rode in the right front passenger seat; Reginald lay on the rear seat, and Kelvin lay in the hatchback or trunk area immediately behind the rear seat. As the Chevette travelled through Lowndes County along U.S. Highway 80 approaching Montgomery, it was struck from behind by an Oldsmobile driven by Dan Jerome Jarrett. Although Jarrett's speed was hotly disputed at trial, it is undisputed that he was exceeding the fifty-five mile per hour speed limit by at least twenty miles per hour, and that he had been drinking.[1]
*1180 Upon impact, the Chevette burst into flames and spun to the right shoulder of the road. Mr. Edwards, after finding the front driver's-side door jammed, managed to kick open the front passenger-side door, crawl over his wife, through that door, and pull her from the flames after him. He then attempted to rescue his sons from the rear of the car, but was unable to do so because of the intense heat. Both children perished in the flames.
The Edwardses brought suit against General Motors (G.M.), the manufacturer of the Chevette, and Jarrett, asserting, inter alia, that Jarrett was negligent in the operation of his vehicle, and that G.M. sold the Chevette in a defective and unreasonably dangerous condition, within the meaning of the Alabama Extended Manufacturer's Liability Doctrine (A.E.M.L.D.), as first set forth in Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976). In particular, they alleged that the design of the gas tank, which was placed in the "crush zone" (between the rear bumper and axle of the Chevette), the fuel filler neck, which was rigidly connected to the left rear quarter panel, and the doors, were defective.
After a lengthy trial the jury returned a verdict finding both Jarrett and G.M. liable for the Edwardses' personal injuries, but finding only G.M. liable for the wrongful deaths of Kelvin and Reginald. The trial court, after hearing argument from both sides, instructed the jury that its verdicts were inconsistent and ordered it to resume deliberation. Shortly thereafter, the jury submitted the following written question to the trial judge: "Do you mean being consistent on damages rendered or defendants charged?" After that, the following colloquy occurred between the judge and the jury:
Thereafter, the jury returned to its deliberations and subsequently returned a second verdict completely exonerating Jarrett but holding G.M. liable for $2,000,000 in each of the wrongful death claims, $50,000 for Mrs. Edwards's injuries and $25,000 for Mr. Edwards's injuries.
Pursuant to G.M.'s motion, the trial court remitted each wrongful death award by $600,000 to $1,400,000, making the total verdict against G.M. $2,875,000. G.M. appealed and the Edwardses cross-appealed from the remittitur.
On appeal, G.M. contends, inter alia: (1) that the verdict against it was against the great weight of the evidence because the Edwardses failed to prove that the Chevette was defective or that the defect proximately caused the injuries complained of; (2) that the instructions given the jury, particularly in regard to proximate cause *1181 and "crashworthiness," were "misleading, incomplete and erroneous"; and (3) that the jury's verdict exonerating Jarrett while holding G.M. solely liable is inconsistent.
The "crashworthiness doctrine," which is also referred to as the "second collision doctrine" or the "enhanced injury doctrine," is a recent development in the area of products liability law, so recent, in fact, that prior to 1968 a case of this nature would likely have been subject to dismissal for failure to state a claim upon which relief could be granted. While all jurisdictions which have adopted one of the various forms of liability applicable to manufacturers, such as our Alabama Extended Manufacturer's Liability Doctrine (A.E.M. L.D.), have always recognized that a cause of action exists where a defect in an automobile causes an accident which injures the ultimate consumer or one within the foreseeable scope of the automobile's use, until the landmark decision of Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968), many jurisdictions, following the reasoning expressed in Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.1968), cert. denied, 385 U.S. 836, 87 S. Ct. 83, 17 L. Ed. 2d 70 (1966), overruled, Huff v. White Motor Corp., 609 F.2d 286 (7th Cir.1979), held that, where there was no allegation that the defect in the automobile caused the accident to happen, no cause of action arose against the vehicle's manufacturer. Ropiequet, Current Issues Under the "Second Collision" Doctrine, For the Defense, Oct. 1983, at 12-17.
The decisions in Evans and its progeny were based upon the reasoning that, although an automobile manufacturer has a duty to design vehicles which are reasonably safe for their intended use, the intended use of an automobile does not include participation in collisions, regardless of the fact that such collisions are foreseeable. Id.; Evans, supra, at 825. Therefore, Evans held, no manufacturer has a duty to design an accident-proof vehicle nor a vehicle that is safer from the obvious danger of collision than any other vehicle.
Although a few jurisdictions have continued to follow Evans and others have used the reasoning expressed therein to limit the scope of the "crashworthiness doctrine," Foland, Enhanced Injury: Problems of Proof in "Second Collision" and "Crashworthy" Cases, 16 Washburn L.J. 601 (1977), the majority of jurisdictions have adopted the Larsen view, i.e., that an automobile manufacturer may be held liable where its design enhances the injuries sustained in a collision. Larsen, supra, at 503; Ropiequet, supra, at 14; Note, Apportionment of Damages in the "Second Collision" Case, 63 Va.L.Rev. 475 (1977).
In Larsen, the plaintiff was severely injured when the 1963 Chevrolet Corvair he was driving was involved in a head-on collision that caused the car's steering mechanism to be thrust into his head. G.M., the manufacturer, successfully moved for summary judgment in federal district court, and the plaintiff appealed to the Eighth Circuit Court of Appeals, which reversed, holding that, while a manufacturer is under no duty to design an accident-proof vehicle, the manufacturer of a vehicle does have a duty to design its product so as to avoid subjecting its user to an unreasonable risk of injury in the event of a collision. Larsen, supra, at 502. The court's reasoning was that collisions are a statistically foreseeable and inevitable risk within the intended use of an automobile, which is to travel on the streets, highways, and other thoroughfares, and that, while the user must accept the normal risk of driving, he should not be subjected to an unreasonable risk of injury due to a defective design. Larsen, supra, at 502-05.
Neither Evans nor Larsen has ever been cited in Alabama and no Alabama court has dealt, per se, with the issue of "crashworthiness." Although Evans and Larsen are not binding upon this Court, they may, of course, be considered as persuasive authority. Having studied both opinions and the cases following them, we find that the rule stated in Larsen is more in keeping with *1182 the purpose of the A.E.M.L.D., which is to protect consumers against injuries caused by defective products. In fact, as the Edwardses point out, as far back as Atkins, supra, this Court recognized, by implication, that a cause of action exists against an automobile manufacturer when a defect in its product causes it to fail during a collision, producing injury.[2] What we did by implication in Atkins, we now do explicitly by joining the majority of jurisdictions in following Larsen.
We must now consider how a "crashworthiness" cause of action may arise against a manufacturer. Generally, in cases where a defect in a vehicle is alleged to have caused an injury-producing accident, manufacturers have been sued on one or more of three legal theories: implied warranty, under Alabama's implied warranty of merchantability statute, Code 1975, § 7-2-314; common law negligence; and liability under the A.E.M.L.D. C. Gamble & D. Corley, Alabama Law of Damages, § 30-10 (1982). Presumably, all three theories would also apply in cases like the present one, where the defect is not alleged to have caused the collision but only to have caused the injuries suffered therein. However, since breach of warranty was never raised, and since the Edwardses' negligence claim against G.M. was dropped, we will not address the applicability of those two theories. Instead, we will limit our discussion to the theory considered by the jury, the A.E.M.L.D.
As previously stated, the A.E.M.L.D. was first announced in Casrell, supra, and Atkins, supra, and, since that time, it has been applied against manufacturers of machinery, Andrews v. John E. Smith's Sons Co., 369 So. 2d 781 (Ala.1979); airplanes, First National Bank of Mobile v. Cessna Aircraft Co., 365 So. 2d 966 (Ala.1978); and automobiles, Jett v. Honda Motor Co., Ltd., 339 So. 2d 66 (Ala.1976), and Joe Sartain Ford, Inc. v. American Indemnity Co., 399 So. 2d 281 (Ala.1981). We see no reason why the A.E.M.L.D. should not be applied, so long as all the elements thereof are present.
The elements of an A.E.M.L.D. cause of action are as follows:
The term "injury or damages" has been held to include death. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981).
Once these elements are proved, a manufacturer may offer, in addition to the affirmative defenses recognized under the A.E.M.L.D. (lack of causal relation, which is applicable only to vendors, not manufacturers, Casrell, supra at 134; assumption of risk; and contributory negligence), evidence disproving any one or several of the elements of plaintiff's prima facie case. Atkins, supra, at 143. Among these elements are the requirements that the product was "in a defective condition unreasonably dangerous to the plaintiff," and that the defect proximately caused the injuries suffered."
*1183 In the case at bar, it was stipulated that neither contributory negligence nor assumption of the risk was present on the Edwardses' part. It is also undisputed that G.M. is a seller engaged in the business of selling Chevettes, and that the Chevette in question reached the Edwardses in an unchanged condition. Furthermore, because G.M. is a manufacturer, not just a vendor, the "causal relation" defense is not applicable here. Consequently, the only two defenses available to G.M. at trial were: lack of a defect in the Chevette, or, if a defect existed, lack of proximate cause between the defect and the injuries. Because both defectiveness and proximate cause were elements of the Edwardses' prima facie case, the burden rested upon them to prove, not upon G.M. to disprove, these elements. Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So. 2d 991, 995 (Ala.1981).
In order to meet their burden of proving defectiveness, it was necessary that the Edwardses show more than that the Chevette's fuel system and doors failed during the collision. Failure of a product does not presuppose the existence of a defect. Id. at 995-96. As this Court stated in Casrell:
In considering whether a directed verdict should have been granted in favor of a defendant/manufacturer, this Court, in Haven Hills Farm, Inc., supra, at 994, expounded on an earlier statement in Casrell and concluded:
Therefore, in order to present his case to the jury, a plaintiff need not prove, with specificity, the defect rendering the product unreasonably dangerous. He must, however, in order to avoid a directed verdict, offer some evidence, at the very least a scintilla, showing that a defect existed and that the defect proximately caused his injury. Rule 50(e), Ala.R.Civ.P.; Segler v. Ford Motor Co., 438 So. 2d 297 (Ala.1983).
Once a scintilla of evidence is produced showing defectiveness and proximate cause, it is for the jury to decide whether a defect in fact existed and whether that defect proximately caused plaintiff's injuries. This raises the important question of what the jury should be instructed that a plaintiff in this type of case must prove in order to persuade them that the manufacturer's automobile was defective and that the defect caused his injury. It is over this issue that G.M. disagrees with the trial court, and it is over this issue that many of the jurisdictions following Larsen also disagree. Ropiequet, supra, at 12. This disagreement between the various jurisdictions results from the fact that some have chosen to follow the reasoning expressed in Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976), while others have adopted the reasoning of Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.1978). (For cases following each, see Ropiequet, supra, at 21, nn. 17-21; Annot., 9 A.L.R. 4th 494 (1981)).
In Huddell, the driver of a 1970 Chevrolet Nova, Dr. Huddell, died of extensive brain injuries suffered when his car was rear-ended by another vehicle, causing his head to strike the Nova's head restraint, which consisted of a "relatively sharp, unyielding metal edge, covered by two inches of soft, foam-like material." His widow brought suit against G.M., and others, alleging that the head restraint was defectively designed. As in the present case, the jury returned a verdict against G.M., the manufacturer, and exonerated the striking driver. The jury also exonerated the striking driver's employer, whose truck he was driving at the time of the accident. The United States District Court entered against the striking driver and his employer *1184 a judgment notwithstanding the verdict, and all three defendants appealed. On appeal, G.M. argued, inter alia, that the circumstances of the accident, particularly the violence of the high speed collision, precluded any reasonable conclusion that the head restraint was defective. G.M. contended that the severity of the accident was a critical factor in determining the defectiveness of the design.
The appeals court reversed and remanded, holding, in regard to G.M., that there had been "serious and fundamental deficienc[ies] in plaintiff's proof, and ... several errors in the jury instructions." Huddell, supra, at 741. The appeals court echoed the language of Larsen, by stating:
After concluding that the plaintiff, Dr. Huddell's widow, had presented sufficient evidence to raise jury questions on the issues of defectiveness and proximate cause, the court discussed, at length, the deficiencies it saw in her proof and in the court's instructions.
Thus, in Huddell, the court placed a difficult burden on plaintiffs in "crashworthiness" cases, requiring them to prove defectiveness by showing the existence of a better alternative design and, with particularity, the difference between the injuries actually sustained and those which would have been sustained had the alternative design been employed.
In contrast, the burden placed upon plaintiffs by Fox, supra, is much less severe. In Fox, two women, Mary Elaine Fox and Diane W. Smith, died from injuries suffered in a front-end collision between a Ford Thunderbird, in which they were riding as passengers in the back seat, and a pickup truck. Their husbands, who were riding in the front seat of the Thunderbird, and who escaped with relatively minor injuries, brought suit, alleging that the seatbelts their wives were wearing were defective.
The Fox court, following Larsen, supra, agreed with the Huddell court that a plaintiff in a "crashworthiness" case must prove a defect in the automobile's design; but, it refused to accept the Huddell court's view that a defect can only be proven by showing a better alternative design, choosing instead to adopt a much more nebulous test whereby defectiveness is determined by weighing the utility of a design (including cost considerations) against the foreseeability of a collision and the possibility of injuries likely to result therefrom. The court stated:
The Fox court also rejected the Huddell court's holding that "crashworthiness" plaintiffs must prove, with particularity, what injuries would have occurred had an alternative design been used, in favor of a rule requiring only that, after proving a defect, the plaintiff prove that the defect was the proximate cause of his injuries. The court stated:
G.M. would have us adopt the Huddell rule and advances an argument identical to the one it advanced in that case, that it is not liable because the accident in question was so severe that any design, no matter how reasonable, would have produced the same injuries. In the alternative, G.M. argues that, even if its design was defective and that defect contributed to plaintiffs' injuries, it is liable only for those injuries directly attributable to the defect. The Edwardses, on the other hand, ask us to adopt a rule of law more akin to the view expressed in Fox, and contend that, having met the burdens of proving defectiveness and proximate cause, as Fox requires, they are entitled to the verdict they received. After reviewing Huddell, Fox, the cases following them, and various articles on the subject of "crashworthiness," we find that, while both the Huddell and Fox lines of cases have their merits, both also have serious shortcomings.
The problem we see in Fox is that the standard it sets for determining defectiveness is, as stated above, quite nebulous. That test involves simply weighing the benefits versus the risks of a particular design. Fox, supra, at 783. It has generally been held, and we agree, that such a weighing process is necessary in "crashworthiness" cases and that the factors to be considered include:
Dawson v. Chrysler Corp., 630 F.2d 950, 957 (3d Cir.1980), cert. denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383 (1981). *1189 Other factors that may be considered include:
Stonehocker v. General Motors Corp., 587 F.2d 151, 154 (4th Cir.1978), citing, Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir.1974). See generally, Hoenig, Resolution of "Crashworthiness" Design Claims, 55 St.J.L.Rev. 633-727, at 659-664; see also, Fox, supra, at 783. However, we also believe, as the Huddell court recognized, but as the Fox court did not, that proof of defectiveness also requires proof that a "safer" practical, alternative design was available to the manufacturer.
As is frequently stated in regard to defectiveness:
Curtis v. General Motors Corp., 649 F.2d 808, 812 (10th Cir.1981). To hold that no safer design need be proved would be to make manufacturers of automobiles insurers of their products' safety, by holding them liable for selling allegedly defective vehicles, even though those vehicles could not have been made safe through the use of any other design. This is neither the intent of Larsen nor the intent of the A.E. M.L.D.
While we agree that the existence of a safer, practical, alternative design must be shown, it is over the particularity with which the existence of such a design must be proven that we take issue with Huddell. Specifically, although we agree with Huddell that a design cannot be seen as "safer" unless it would have prevented or at least have limited the injuries complained of, had it been used, we hold that under Alabama law a "crashworthiness" plaintiff is not required to prove precisely which of his injuries were caused by the striking driver and which were caused by the defective design of the defendant manufacturer's automobile, as Huddell required. There can be no doubt that, as the Fox court concluded, these requirements expressed in Huddell were intended to give the trier of fact some basis for apportioning damages between the striking driver and the manufacturer. As Fox pointed out, however, in the majority of jurisdictions, where two or more tortfeasors act to produce a single indivisible injury, such as death, apportionment is not allowed between the tortfeasors. Fox, supra, at 787; see also, Richardson v. Volkswagenwerk A.G., 552 F. Supp. 73 (W.D.Mo.1982).
In the final analysis, it is over this single issue, the apportionability of normally unapportionable injuries, that the Huddell line of cases and the Fox line of cases differ. Huddell holds that, because of the unique nature of crashworthiness cases, the trier of fact must always apportion damages between those attributable to the manufacturer's defective design and those attributable to the striking driver. Note, Apportionment of Damages in the Second Collision case, 63 Va.L.Rev. 475, 491 (1977). On the other hand, Fox, following the dictates of the Restatement (Second) of Torts §§ 433, 433A, and 433B (1965), holds that if plaintiff's injuries are indivisible, the manufacturer and striking driver are jointly and severally liable as concurrent tortfeasors. Richardson, supra, at 80; Fox, supra, at 787; see also, Ropiequet, supra, at 14. The Huddell court based its decision on feelings that concurrent tortfeasor principles are inapplicable in "crashworthiness" cases. Huddell, supra, at 738. This distinction between "crashworthiness" defendants and other concurrent tortfeasors is apparently based on the Huddell court's policy decision that manufacturers who build defective automobiles are somehow less culpable than others. This is a distinction *1190 which, given the intent of the A.E.M. L.D., to protect consumers from unreasonably dangerous products, this Court is not prepared to make. As the court stated in Mitchell v. Volkswagenwerk, A.G., 669 F.2d 1199, 1206 (8th Cir.1982), the Huddell court viewed Larsen as requiring "fresh legal thinking," leading it to conclude that concurrent negligence principles do not control. But, as the Mitchell court concluded, such reasoning "is difficult to follow."
Because Huddell requires apportionment of damages in all "crashworthiness" cases, it cannot be followed in this regard in Alabama. Like the law of the state of Wyoming, under which Fox was decided, Alabama law holds that, where two or more tortfeasors act to produce an indivisible injury, apportionment is not allowed. Ex parte City of Huntsville v. Davis, 456 So. 2d 72 (Ala.1984). As Fox points out, death is certainly an indivisible injury. The same can be said for the Edwardses' burn injuries. Thus, in Alabama, where an accident results in an indivisible injury, such as death, an automobile manufacturer cannot attempt to limit its liability by proving, or requiring the plaintiff to prove, what portion of plaintiff's injuries is attributable to the defectiveness of the vehicle it manufactured and what portion is attributable to the striking driver.[3] Consequently, the only proof of damages that will limit the manufacturer's liability in crashworthiness cases is proof that, regardless of the design used, the identical injuries were inevitable. In such a case, the manufacturer's liability is not only limited, it is completely eliminated, because plaintiff has failed to prove "cause in fact," a fundamental element necessary to prove proximate cause between the defective condition and his injuries. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser & Keeton on Torts, §§ 41, p. 265 (5th ed. 1984). If, on the other hand, the proof shows that an alternative design would have eliminated plaintiff's injuries totally or would have reduced them, proximate cause between the defect and the injury is proven, and the manufacturer is jointly and severally liable along with the striking driver (assuming that he is found liable) for the entire amount of the injuries suffered. Thus, the manufacturer faces an all or nothing proposition; either he is liable for all the damages or he is liable for none, depending upon whether an alternative design would have prevented or reduced plaintiff's injuries.
Like the Fox court, this Court sees no reason to dismantle our longstanding rules of concurrent tortfeasor liability merely because "crashworthiness" claims do not present, as the Huddell court called it, "an orthodox strict liability case." Therefore, while it was necessary for the Edwardses to produce a preponderance of evidence indicating that the injuries suffered would have been eliminated or reduced had an alternative design been employed, we do not hold that it was necessary for them to show precisely either the injuries which would have occurred had a "safer," practical, alternative design been used or the extent of their injuries attributable to the alleged defects in the Chevette.
The Fox court, we believe, was correct in holding that the automobile manufacturer's liability is ultimately a question of proximate cause which must be determined by the trier of fact after the plaintiff has presented evidence of a defect in the automobile and a causal connection between *1191 that defect and the injuries he suffered. A plaintiff, therefore, has the burden in a "crashworthiness" case to prove no more than the A.E.M.L.D. requires, namely, the existence of a defect and proximate cause.
Of all the cases we have read on this subject, we believe that Lachocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 398 A.2d 490 (1979), best expresses our position. In that case, the court concluded:
41 Md.App. at 590, 398 A.2d at 498.
To summarize, this Court follows Larsen in recognizing that a cause of action does exist against an automobile manufacturer where it is alleged that an automobile manufactured by it was defective, and was involved in an accident, and that the defect, although not causing the accident to occur, contributed to the injuries sustained therein. This Court also holds that such an action may be brought under the A.E.M. L.D.
In order to recover against the automobile manufacturer in such cases, a plaintiff must prove the following:
Plaintiff must offer at least a scintilla of evidence tending to prove each of the elements in order to present a prima facie case; if he does, the defendant manufacturer may offer, in addition to evidence to *1192 counter plaintiff's prima facie case, the two affirmative defenses recognized as available to manufacturers under the A.E.M.L. D.(1) assumption of risk, and (2) contributory negligenceand, of course, the defense that the proximate cause of the injury or death was the wrongful conduct of the striking driver or other intervening agency.
Once plaintiff presents his prima facie case, thereby avoiding a directed verdict in favor of the defendant, and the defendant presents its available defenses, the case is placed squarely within the province of the jury, whose verdict will not be disturbed on appeal unless so clearly divergent from the evidence and law as to be palpably wrong and manifestly unjust. Files v. Schaible, 445 So. 2d 257 (Ala.1984); Tallant v. Grain Mart, Inc., 432 So. 2d 1251 (Ala.1983).
Applying the foregoing to the case at bar, and after reviewing the evidence presented in this case, we find that at least a scintilla of evidence tending to prove each element was presented by the plaintiffs; therefore, a directed verdict would have been inappropriate. We also find that there was sufficient evidence, albeit disputed, to support the jury's verdict against G.M. Therefore, we reject G.M.'s argument that the verdict against it was against the great weight of the evidence.
In this case, G.M.'s basic defense was that the collision between Jarrett's Oldsmobile and the Edwardses' Chevette was so severe that, regardless of the design of the Chevette's fuel system and doors, the injuries which occurred were inevitable, in other words, that no "safer," practical, alternative, design would have prevented the injuries. In effect, this is nothing more than an argument that Jarrett's act of striking the Chevette was the sole unforeseeable "cause in fact" of the injuries and, therefore, was an intervening cause which relieved G.M., as a matter of law, of the liability it might otherwise have incurred for selling an allegedly defective automobile. Although there could be factual situations in which a manufacturer could be exonerated, as a matter of law, we hold that in this case a jury question was presented as to whether Jarrett's conduct was the proximate cause of the injuries and deaths. A jury cannot be expected to decide the questions of proximate cause and sole intervening cause without adequate instruction.
The trial court in this case gave the following jury instructions on proximate cause:
G.M. objected and requested that certain more specific instructions be given in regard to proximate cause. Those requested instructions are as follows:
The trial court denied these requests by G.M.
The instructions given by the court were, as the Edwardses point out, taken directly from Alabama Pattern Jury Instructions: Civil (A.P.J.I:Civ.) §§ 33.00, 33.01, and were correct. G.M., however, contends that in this case they were totally insufficient to instruct the jury on the issue of proximate cause, particularly as to intervening cause, so as to allow the jurors to intelligently and properly decide that critical issue. At this point, a brief review of the concept of proximate cause is in order.
It is axiomatic that regardless of a tortfeasor's culpability, regardless of whether he failed to exercise reasonable care in carrying out a duty imposed upon him by law, he may not be held liable unless there is a causal connection between his action and the injury for which the aggrieved party seeks compensation. Smith v. Alabama Water Service Co., 225 Ala. 510, 143 So. 893 (1932); International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270 (1931).
Second, the mere presence of a causal connection, that is to say, a cause and effect relationship between a particular act and an injury, is not alone sufficient to *1194 impose liability upon a tortfeasor. The act for which he is responsible must also be of such a nature that courts of law will recognize it as the "proximate cause" of the injury. Prosser & Keeton on Torts, supra, at 273. To paraphrase an earlier opinion by this Court, while proximate cause is not necessarily the cause nearest the injury, the word "proximate" adds the requirement of unbroken causation between an act and an injury produced by that act. A cause within this unbroken chain of causation is said to be "proximate," and therefore actionable, while a cause not within the chain is said to be "remote" and, thus, not actionable. Aggregate Limestone Co. v. Robison, 276 Ala. 338, 161 So. 2d 820 (1964).
In Alabama, as elsewhere, foreseeability is the cornerstone of proximate cause, Alabama Power Company v. Taylor, 293 Ala. 484, 306 So. 2d 236 (1975). As a result, one is held legally responsible for all consequences which a prudent and experienced person, fully acquainted with all the circumstances, at the time of his negligent act, would have thought reasonably possible to follow that act, Prescott v. Martin, 331 So. 2d 240 (Ala.1976), including the negligence of others, Williams v. Woodman, 424 So. 2d 611 (Ala.1982). In short, as this Court has frequently stated, and as the trial court in this case correctly instructed the jury, a particular cause is considered the proximate cause of an injury if, in the natural and probable sequence of events, and without intervention of any new or independent cause, the injury flows from the act. City of Mobile v. Havard, 289 Ala. 532, 268 So. 2d 805 (1972); Aggregate Limestone Co., supra; Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So. 2d 388 (1961); Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So. 2d 342 (1959); Louisville & N.R. Co. v. Maddox, 236 Ala. 594, 183 So. 849 (1938). G.M. based its defense upon the principle that proximate cause only exists where no new or independent cause, also known as intervening cause, exists. On appeal, G.M. claims that the trial court's jury instructions were wholly inadequate in stating to the jury the applicable law of the case.[4]
Loosely defined, an "intervening cause" is one which occurs after an act committed by a tortfeasor and which relieves him of his liability by breaking the chain of causation between his act and the resulting injury. Vines v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala.1976). This Court has stated:
An intervening cause may be an "act of God," such as an extraordinary event of nature, Bradford v. Stanley, 355 So. 2d 328 (Ala.1978), or the actions of another, usually, though not necessarily, another tortfeasor; however, a cause is not an intervening cause, so as to relieve a tortfeasor of his liability, unless it comes into active operation after the tortfeasor has acted. Prosser & Keeton on Torts, *1195 supra, at 301. In other words, it must occur between the act of the tortfeasor and the injury sustained for the chain of causation between the act and the injury to be broken. Vines, supra; Aplin v. Dean, 231 Ala. 320, 164 So. 737 (1935).
Not every cause which comes into operation after a tortfeasor has acted will relieve him of liability for his wrongful act. More than the proper temporal relationship between the tortfeasor's act and the subsequent cause is required. In order to be an intervening cause, a subsequent cause also must have been unforeseeable and must have been sufficient in and of itself to have been the sole "cause in fact" of the injury. Vines, supra, at 339. If an intervening cause could have reasonably been foreseen at the time the tortfeasor acted, it does not break the chain of causation between his act and the injury. Vines, supra; Morgan, supra; Louisville & N.R. Co. v. Courson, 234 Ala. 273, 174 So. 474 (1937). Conversely, if the intervening cause was unforeseeable, the causal chain is broken. Vines, supra. In the same respect, if the intervening cause is not sufficient to be considered the sole "cause in fact" of the injury, if it is not in and of itself sufficient to stand as the "efficient cause" of the injury, the causal chain is not broken; but, if the intervening cause was alone sufficient to produce the injury complained of, it is deemed the proximate cause of the injury and the tortfeasor or tortfeasors between whose acts and the injury the cause intervened are relieved of liability. Watt v. Combs, 244 Ala. 31, 12 So. 2d 189 (1943); Goodwyn v. Gibson, 235 Ala. 19, 177 So. 140 (1937).
Where two or more tortfeasors may be responsible for the same injury, the law of proximate cause is overlapped by the law of concurrent tortfeasor liability. The basic premise of concurrent tortfeasor law is that, as alluded to above, an injury may have several concurrent proximate causes, Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610 (1928), including the actions of two or more tortfeasors, neither of whose action was sufficient in and of itself to produce the injury, who act, either together or independently, to produce it. Butler v. Olshan, 280 Ala. 181, 191 So. 2d 7 (1966). Alabama law is clear that on such occasions, where the actions of two or more tortfeasors combine, concur, or coalesce to produce an injury, each tortfeasor's act is considered to be the proximate cause of the injury, Williams v. Woodman, 424 So. 2d 611 (Ala.1982); Watt, supra, and each tortfeasor is jointly and severally liable for the entire injury. United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596 (Ala.1977); Butler, supra.
Because of joint and several liability, no concurrent tortfeasor may assert the culpability of any other tortfeasor as a defense to his own liability. Williams, supra, citing Watts, supra. In other words, because the actions of each tortfeasor contributed, as a "cause in fact," to produce the injury, no tortfeasor may assert that the actions of another tortfeasor, and not his own, caused the injury. The single exception to this rule is, as discussed above, where the unforeseen act of another tortfeasor, which was sufficient in and of itself to produce the injury, intervened between the time the first tortfeasor acted and the injury. In such cases, the intervening act breaks the chain of causation between the first tortfeasor's act and the injury, the first tortfeasor is relieved of his liability, and the actions of the intervening tortfeasor are considered the sole proximate cause of the injury, making the intervening tortfeasor solely liable for the entire injury. Vines, supra; Proctor, supra.
There is, of course, some evidence to support G.M.'s contention that Jarrett's collision with the Edwardses' Chevette was so severe as to have been an intervening cause which relieved it of any liability for the consequent injuries and deaths. Consequently, had G.M. requested the court to instruct the jury on the principle of intervening cause, substantially stating in the requested instruction the law as we have just outlined it, we would probably hold the trial court in error for refusing to *1196 give such an instruction; however, none of the instructions requested by G.M., with the possible exception of Request to Charge No. 32, substantially stated the legal principles of law applicable in a "crashworthiness" case. Instead, G.M.'s requested instructions merely restated the general principle of proximate cause as given by the trial court. Therefore, G.M.'s requested instructions, if given, would have added little or nothing to the proximate cause instruction already given or to the jury's understanding of proximate cause. As a result, we find that the instructions given by the trial court were adequate, and we cannot say that the trial court erred to reversal in refusing to give G.M.'s requested instructions on proximate cause.
Similarly, we perceive no reversible error in the trial court's failure to give G.M.'s requested instructions which attempted to state the elements of a "crashworthiness" cause of action. On the issue of crashworthiness, G.M. objected to the court's refusal to give the following instructions:
These charges were either totally unacceptable, contained some unacceptable portions, were argumentative, confusing, prejudicial, or were cumulative with the instructions actually given. Specifically, requested charges 22 and 23 state the Huddell rule, which we have refused to adopt in whole; requested charge 24 was very confusing and argumentative; requested charge 37 included the term "misuses" of the product, which was not alleged here, and, therefore, was both argumentative and prejudicial; requested charge 45 used the phrase "protect the occupants under any conditions," which was incorrect considering that under foreseeable conditions the automobile should protect its occupants from injury (the charge should have used the phrase "all conditions"); and, requested charge 64 improperly states that punitive damages are apportionable. We cannot hold the trial court in error for not giving them. Therefore, we will not reverse based upon the trial court's jury instructions.
G.M. has no grounds for arguing that the verdicts exonerating Jarrett while finding it solely liable are inconsistent. Had Jarrett been found guilty of negligence, he would have been no more than a joint tortfeasor, whose negligence would in no way have relieved G.M. of its several liability. Consequently, G.M. cannot complain. Atlantic Coast Line R. Co. v. Carroll, 208 Ala. 361, 94 So. 820 (1922).
As to the other issues raised by G.M., relating to the admissibility of certain evidence, the propriety of plaintiffs' closing argument, and alleged juror misconduct, we find no reversible error.
In conclusion, we would make two observations: First, in researching this case, we have noted that in almost all "crashworthiness" cases, trial courts have, rather than submitting general verdict forms to the jury, also submitted interrogatories accompanying verdict forms. Such a procedure is provided for by Rule 49(c), Ala.R.Civ.P. Although we cannot require trial courts to submit such interrogatories, *1198 we believe that they would be most helpful in all "crashworthiness" cases.
Finally, we note that federal safety standards, such as the National Traffic and Motor Vehicle Safety Act of 1966, and the regulations promulgated pursuant thereto, do not preempt or prohibit suits, like the present one, brought in state court under common law causes of action. In fact, proof of compliance with federal highway safety standards, while it may be admitted as evidence that a vehicle is not defective, is not conclusive and, therefore, does not provide a defense to state law claims. As a result, juries, like the one in this case, are charged with the awesome responsibility of deciding, on a case by case basis, the reasonableness of an automobile's design. Such complex decisions, which must be made upon the limited information made available to the jurors within the constraints of the judicial system, have potential national implications. We could hold that the standards set by the federal government, which has the resources necessary to conduct tests to determine whether or not a design is unreasonably dangerous, are conclusive. We refuse to so hold. Whether federal standards should be conclusive in "crashworthiness" cases is not a decision for this Court to make. Such a decision, if made, would have to be made by the appropriate legislative body.
We now discuss the trial court's order granting remittitur.
As stated in this opinion earlier, the trial court, acting pursuant to General Motors' motion, remitted each wrongful death award by $600,000, down to $1,400,000.
Remittitur has been recognized in Alabama for many years as a legitimate device to end litigation. Rule 59(f), Ala.R.Civ.P., promulgated by this Court, expressly provides that "[t]he [trial] court may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial ...," but provides that "the acceptance of [the] remittitur by the plaintiff shall not prejudice his right to raise, on appeal by the defendant, his right to have the verdict reinstated in its full amount." This Court is also independently authorized to require remittitur in an appropriate case. Code 1975, § 12-22-71, provides:
In various cases, this Court has generally followed the principle that a trial court is accorded a large measure of discretion in determining whether to grant a remittitur. Todd v. United Steelworkers of America, 441 So. 2d 889, 892 (Ala.1983). We have also generally held that when a trial court exercises its discretion to order a remittitur, its decision is presumed correct and will not be reversed on appeal absent evidence of an abuse of discretion. Id.
Illustrative of the action this Court has taken in cases involving claims of excessive judgments, are the following:
*1199 The trial court ordered remittitur, and this Court affirmed: Todd v. United Steelworkers of America, AFL-CIO, 441 So. 2d 889 (Ala.1983); Winchester v. McCulloch Brothers Garage, Inc., 388 So. 2d 927 (Ala. 1980); International Resorts, Inc. v. Lambert, 350 So. 2d 391 (Ala.1977); Stead v. Blue Cross-Blue Shield of Alabama, 346 So. 2d 1140 (Ala.1977); Taylor v. Birmingham News Co., 341 So. 2d 689 (Ala.1977); Holcombe v. Whitaker, 294 Ala. 430, 318 So. 2d 289 (1975).
The trial court ordered remittitur and this Court reversed: Shiloh Construction Co. v. Mercury Construction Corp., 392 So. 2d 809 (Ala.1980); B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So. 2d 1276 (Ala. 1976).
The trial court refused to grant remittitur and this Court affirmed: American Pioneer Life Insurance Co. v. Sandlin, 470 So. 2d 657 (Ala.1985); White v. Fridge, 461 So. 2d 793 (Ala.1984).
The trial court refused to grant remittitur and this Court reversed: Coca-Cola Bottling Co., Montgomery v. Parker, 451 So. 2d 786 (Ala.1984); Gulf Atlantic Life Insurance Co. v. Barnes, 405 So. 2d 916 (Ala.1981); General Electric Credit Corp. v. Alford & Associates, Inc., 374 So. 2d 1316 (Ala.1979); San-Ann Service Inc. v. Bedingfield, 293 Ala. 469, 305 So. 2d 374 (1974); Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So. 2d 211 (1968).
As can readily be seen by a review of these cases, this Court has not yet adopted specific standards for courts to apply in granting or denying remittitur. We believe that the time has come for this Court to study the remittitur practice in Alabama, and to adopt a rule or rules of practice which would ensure the protection of the jury system and the parties' right to a jury trial, but which would also protect the public's interest in decreased court costs and a speedy and just determination of every case upon the merits. We do not adopt those standards in this case, because to do so would effect a major change in current remittitur practice, and such a major change should be adopted only after adequate notice and deliberate study by the full Court.[5]
The Court considered the possibility of remanding this cause to the trial court, with directions, to require the trial judge to state what may have induced the verdicts which he found to be excessive, but we are convinced that present law does not require that the trial judge state any reasons why he granted remittitur. In Williams v. Williams, 283 Ala. 292, 295, 216 So. 2d 181, 183 (1968), this Court held:
Applying this principle, we believe a remand would not be appropriate. This Court has long recognized that appellate review of remittitur "involves a review of [the] trial court's judgment based upon his observation of all the witnesses who testified in the case and other incidents of the trial which cannot be reflected in the transcript and which are not available for observation by us." Airheart v. Green, 267 Ala. 689, 693, 104 So. 2d 687, 690 (1958).
In Airheart, this Court did conclude that in a case involving our homicide statute, as this case does, "the amount of the verdict and the severity of the punishment are graded according to the degree of culpability...." 267 Ala. at 693, 104 So. 2d at 691. The trial judge very well may have applied the Airheart rule in this case.
For an excellent discussion of the subject of remittitur in Alabama, see Commentary, *1200 Remittitur Practice in Alabama, 34 Ala. L.Rev. 275 (1983).
Based on the foregoing, we are of the opinion that the judgment of the trial court on the cross-appeal, is due to be affirmed.
AFFIRMED AS TO BOTH APPEAL AND CROSS-APPEAL.
As to Part I, all Justices concur, except SHORES and HOUSTON, JJ., recused.
As to Part II, TORBERT, C.J., and BEATTY and ADAMS, JJ., concur; FAULKNER, JONES and ALMON, JJ., dissent; SHORES and HOUSTON, JJ., recused.
ALMON, Justice (dissenting as to part II).
I would not affirm the trial court's judgment granting remittitur on the record presented in this case. In cases such as this, where the amount of damages is within the sound discretion of the jury, a remittitur should be granted only "where the court can clearly see that the verdict has been reached on account of bias, passion, prejudice, corruption, or other improper motive or cause." Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689, 692 (1963); Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981). The trial court, in its order granting remittitur or new trial, made no such finding of bias or passion; indeed, it made no findings to support this portion of its judgment at all.
This Court, in addressing the issue of remittitur of large punitive damages verdicts, should develop standards by which motions for remittitur or new trial should be decided. The Court has affirmed judgments on large verdicts with substantial punitive damages components. Without standards, there is no objective way of determining when a verdict has been influenced by bias or passion. The constitutional right to jury trial is then within the trial court's power, subject to review governed only by the vague criterion of "abuse of discretion."
The purposes of punitive damages is to punish and deter wrongdoing. The nature of the wrong and the wealth of the defendant are pertinent to the decision on the amount necessary to punish the wrongdoer. Because the jury should not consider the wealth of the defendant, it would be proper for the trial court to consider such matters in a post-trial hearing on the motion for new trial or remittitur. In such a situation, the burden would be on the party seeking to set aside the verdict to show why the damages were excessive and/or unreasonably punitive.
In the instant case, it is difficult to see by what standard the trial court granted the remittitur. This Court has allowed similar large verdicts to stand. Surely the wrong of knowingly designing a defective car is at least as great as the wrong of a bad faith refusal to pay an insurance claim. The plaintiffs' children were killed in this crash, whereas the plaintiffs in bad faith cases suffer less cataclysmic wrongs. General Motors is one of the largest corporations in the world, and surely an amount appropriate to punish its wrongdoing is no less than an amount necessary to punish a large insurance company.
I make these remarks only as general observations. Because the majority of the Court does not agree with me that in this case we should begin the process of establishing standards, I have not done the extensive research necessary to that task. The jury awarded damages commensurate with damages which we have affirmed in other cases. If we are now deciding that those damages are too high, we should do so in a reasoned manner. Absent such a determination, I would reverse that portion of the judgment granting remittitur.
FAULKNER and JONES, JJ., concur.
[1] Jarrett admitted to having had four beers prior to the collision. A blood alcohol test conducted over one hour after the accident placed his blood alcohol level at .104%, above the legal limit of intoxication set at .10% by Code 1975, § 32-5A-191.
[2] In Atkins, as here, an automobile's gasoline tank exploded during a rear-end collision. This Court held that an A.E.M.L.D. claim existed against the manufacturer of the automobile.
[3] Not only is apportionment not allowed, but the evidence required by Huddell to support it would be, at best, speculative. As was stated in Lahocki v. Contee Sand & Gravel Co., 41 Md. App. 579, 398 A.2d 490 (1979), reversed on other grounds, 286 Md. 714, 410 A.2d 1039 (1980):
"We begin our departure from G.M.'s reasoning when it points to Huddell v. Levin, 537 F.2d 726 (3rd Cir.1976), for the premise that the plaintiff not only must prove that his injury was enhanced by the defect attributable to G.M., but also must specifically set forth what precise injuries would have occurred absent the defect.
"* * * *
"To state such a premise in this case points to its absurdity unless a plaintiff's experts could qualify as soothsayers." 41 Md.App. at 590, 398 A.2d at 498.
[4] We note the trial court's failure to instruct as to intervening cause was due to the fact that the pattern jury instructions contain no such instruction. In fact, the Notes On Use accompanying A.P.J.I:Civ. §§ 33.02, 33.03 recommend that no such instructions be given. This recommendation results from the belief of the committee which drafted these instructions that the concept of intervening cause is so beyond the comprehension of most jurors that, in the ordinary case, giving such an instruction would only confuse the jury and hinder the cause of justice. See Notes on Use, A.P.J.I:Civ. §§ 33.02, 33.03; see also, Prescott v. Martin, supra, n. 1, at 244.
Even though we agree that in the normal case, such as where a single tortfeasor is involved or the proximate cause of the injuries in question is otherwise clear, the chance of confusion might otherwise outweigh the value of giving a charge on intervening cause, we believe that under certain facts, such a charge should be given in crashworthiness cases, if properly framed and requested by a party.
[5] Justices Shores and Houston are recused in this case. | November 15, 1985 |
1da79ffe-5bdc-4035-8dec-f89947f9ba9e | Harris v. Meadows | 477 So. 2d 374 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 374 (1985)
Carol P. HARRIS
v.
Dora Stubbs MEADOWS.
84-189.
Supreme Court of Alabama.
October 4, 1985.
J. Scott Vowell and Richard A. Meelheim of Beddow, Fullan & Vowell, Birmingham, for appellant.
Thomas A. Woodall of Rives & Peterson, Birmingham, for appellee.
ALMON, Justice.
This case involves a claim for damages for injuries resulting from an automobile collision.
First Avenue North in Birmingham, Alabama, is a five-lane street consisting of two east-bound lanes, two west-bound lanes and a center turn lane.
The plaintiff, Carol P. Harris, was driving east in the far right lane, and the defendant, Dora Stubbs Meadows, was in the center lane facing west, preparing to turn left. As Harris neared Meadows, Meadows began to turn in front of Harris. Harris testified that she blew her horn, applied her brakes, and "moved over to the right a little bit." Meadows's vehicle then collided with the left side of Harris's vehicle in the area of the front fender and driver's door. As a result of the collision, Harris suffered a cervical sprain and a contusion, or bruise, to her left hip.
Harris's complaint contained counts alleging that the collision was a result of negligent and wanton conduct on the part of Meadows. The wanton count was dismissed upon a motion by Meadows at the close of all the evidence.
At trial Meadows admitted that she was guilty of negligence but contended that Harris should not recover because Harris was guilty of contributory negligence. Harris appeals from a judgment on the jury's verdict for Meadows, and a denial of her motion for a new trial.
Harris argues that the judgment should be reversed because the verdict upon which it is based is unsupported by facts and is contrary to law.
A jury verdict is presumed correct and will not be set aside unless it is without supporting evidence or is so contrary to the evidence as to render it wrong and unjust. Where the jury verdict is not plainly erroneous, we cannot consider other possible conclusions that might have been reached. Kent v. Singleton, 457 So. 2d 356 *375 (Ala.1984); Files v. Schaible, 445 So. 2d 257 (Ala.1984); Goodson v. Elba Baking Co., 408 So. 2d 498 (Ala.1981).
In reviewing the record we note the following testimony by Harris:
We are of the opinion that there was sufficient evidence before the jury for it to conclude that Harris was guilty of contributory negligence in failing to act reasonably under the circumstances to avoid the collision. This case is perhaps illustrative of the harshness of the contributory negligence doctrine, a doctrine which, like the scintilla evidence rule, seems to be firmly established in our jurisprudence.
There appearing no reversible error, the judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | October 4, 1985 |
c10761a0-ce68-4f81-bd3f-90a98315de39 | Polytec, Inc. v. UTAH FOAM PRODUCTS | 477 So. 2d 295 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 295 (1985)
POLYTEC, INC., a corporation, and Phil Cashion
v.
UTAH FOAM PRODUCTS, INC., a corporation; J.O. Lochridge Company; John Binford; and Michael A. Guarino.
84-92.
Supreme Court of Alabama.
September 6, 1985.
As Corrected on Denial of Rehearing October 4, 1985.
*296 James L. Shores, Jr. of Shores & Booker, Fairhope, for appellants.
R. Boyd Miller of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellee Utah Foam Products, Inc.
Joseph S. Johnston of Johnston & Johnston, Mobile, for appellees Lochridge and Binford.
Ian F. Gaston, Mobile, for appellee Guarino.
PER CURIAM.
This is the second time this case has been before us on appeal from a summary judgment in favor of certain of the counterdefendants. The factual background and procedural status, as then postured, are set out in our opinion in the first appeal, Polytec, Inc. v. Utah Foam Products, Inc., 439 So. 2d 683 (Ala.1983), and need not be repeated here. The instant record on appeal reveals the following subsequent changes in the posture of the counterclaims: the addition of one counterdefendant; discovery by the respective parties to the counterclaim; and the entry of summary judgment adverse to each of the counterplaintiffs' statements of their claim. (The first appeal was limited to counts four and five.)
After careful review of the evidence adduced through discovery and presented to the trial court in support of counterdefendants' motion, we hold that this evidence does not reduce the case to a "no material issue of fact" posture so as to support a summary judgment; nor have we altered our position with respect to the legal viability of counts four and five.
In so holding, we are not unaware that this appeal (contrary to the first appeal) seeks to have this Court enlarge its review and speak to the viability of count three of the counterclaim (a counterclaim for breach of contract against Utah Foam Products, Inc., only). Because our review of the record reveals viable issues of fact with respect to counts three, four and five, we reverse the judgment and remand this cause for trial as to the theories advanced by these counts.
In conclusion, for the sake of clarity, we point out that the trial court's order granting summary judgment in favor of Utah Foam on its original claim against Polytec stands undisturbed by this opinion; and, upon remand of this cause, only counterdefendant Utah Foam is to be put to trial on the counterclaim stated in count three, and all of the counterdefendants are to be put to trial on the counterclaims stated in counts four and five.
REVERSED AND REMANDED.
TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON, BEATTY and ADAMS, JJ., concur.
SHORES J., not sitting.
PER CURIAM.
On rehearing, the opinion is corrected and the application for rehearing is overruled.
TORBERT, C.J., and MADDOX, FAULKNER, JONES and ALMON, JJ., concur. | October 4, 1985 |
a461732b-4a64-4699-872a-222cd09a303f | Tyree v. Hendrix | 480 So. 2d 1176 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1176 (1985)
James Irvin TYREE
v.
Douglas HENDRIX.
No. 83-1263.
Supreme Court of Alabama.
September 27, 1985.
James Irvin Tyree, pro se.
Douglas Hendrix, Tuscaloosa, pro se.
ALMON, Justice.
This is an appeal from the dismissal of a complaint alleging legal malpractice. Plaintiff, James Irvin Tyree, was convicted in a criminal action in which he had been represented by defendant, Douglas Hendrix, at an early stage of the proceedings. Tyree alleges two actions by Hendrix as constituting malpractice: that Hendrix erroneously told him that the maximum sentence he could receive under the indictment was fifteen years, when in fact it was thirty; and that Hendrix failed to file a *1177 demurrer to the portion of the indictment setting out a prior conviction of possession of controlled substances.
Tyree was indicted February 5, 1982, for obtaining or attempting to obtain a controlled substance by a forged prescription "after having been previously convicted of the Unlawful Possession of Marijuana." The circuit court allowed his original attorney to withdraw on April 19 and appointed Hendrix to represent him on April 23. Also on April 23, Tyree waived arraignment and pled not guilty. Tyree asserts that Hendrix told him that the punishment for the offense charged would be not less than two nor more than fifteen years. On or about July 28, 1982, Hendrix requested permission to withdraw as attorney for Tyree. The court granted the request, and on August 5, 1982, Michael C. Cornwell was appointed to defend Tyree.
Tyree was tried before a jury and convicted on August 31, 1982. The court fixed sentence under the enhancement provision of § 20-2-76, Code 1975, at 25 years' imprisonment. Tyree appealed to the Court of Criminal Appeals, which affirmed the judgment and sentence. Tyree v. State, 439 So. 2d 1346 (Ala.Crim.App.1983). This Court denied Tyree's petition for writ of certiorari. Cornwell represented Tyree throughout those proceedings.
To succeed in his claim of legal malpractice, Tyree would have to prove that Hendrix breached his duty of due care in the performance of legal services for Tyree and that such breach was the proximate cause of an injury to Tyree. Mylar v. Wilkinson, 435 So. 2d 1237 (Ala.1983); Herston v. Whitesell, 374 So. 2d 267 (Ala.1979). Mylar was a similar case of a convicted criminal defendant claiming malpractice against his lawyer. In that case, there had even been a finding of inadequate assistance of counsel by the U.S. Court of Appeals, yet this Court upheld the dismissal of the malpractice claim because there was no averment or indication that Mylar would have received a more favorable result in his criminal prosecution absent the alleged malpractice.
Tyree has not stated a meritorious claim against Hendrix. The facts as indicated in the record are as follows: He entered his "not guilty" plea by signing a form which included an explanation of rights. The explanation of rights informed him of the offense for which he had been indicted and stated, "If you plead guilty to said crime, or if the jury finds that you are guilty of said crime, the law provides for punishment by imprisonment in the penitentiary for not less than two nor more than fifteen years and a fine not to exceed $25,000.00 for said offense." The circuit judge's signature appears at the bottom of this explanation of rights.
Code 1975, § 20-2-70, specifies the crime of obtaining or attempting to obtain certain controlled substances by, inter alia, the forgery or alteration of a prescription, and sets out the penalties quoted in the explanation of rights. Section 20-2-76 provides that persons convicted of second or subsequent offenses under the controlled substances chapter "may be imprisoned for a term up to twice the term otherwise authorized." Tyree contends that if he had been informed of this possibility of enhancement of sentence, he might have reached a plea arrangement whereby he would have pled guilty and received a lesser sentence.
This contention is too speculative to support a claim of malpractice. There is no allegation that the district attorney offered a lesser sentence in exchange for a guilty plea or that the trial court would have accepted such a sentencing arrangement. The face of the explanation of rights shows that the judge approved the statement that the sentence could be from two to fifteen years. Tyree could have challenged the sentence in the trial court and on appeal or by post-trial motion. The record before us does not indicate that Tyree made any such challenge. Thus, Tyree has shown nothing to support a claim for malpractice on this assertion that Hendrix incorrectly informed him of the possible sentence.
The trial court was also correct in dismissing the claim for failure to file a *1178 demurrer to the indictment. The Court of Criminal Appeals has, in a substantial line of cases, held that the State may include prior drug offenses in an indictment for a subsequent offense, and must do so in order to sentence a defendant under the enhancement statute. Kidd v. State, 398 So. 2d 349 (Ala.Crim.App.), cert. denied, 398 So. 2d 353 (Ala.1981); Luttrell v. State, 357 So. 2d 1021 (Ala.Crim.App.1978); Napier v. State, 344 So. 2d 1235 (Ala.Crim.App.), cert. denied, 344 So. 2d 1239 (Ala.1977); Funches v. State, 56 Ala.App. 22, 318 So. 2d 762, cert. denied, 294 Ala. 757, 318 So. 2d 768 (1975). All of these cases had been decided before Tyree's plea. See also Luker v. State, 424 So. 2d 662 (Ala.Crim.App.1982), cert. quashed, 424 So. 2d 662 (Ala.1983), clarifying the above-cited cases and holding that the averment of the prior drug offense is permissible but not necessary in order to sentence under the enhancement statute. Hendrix committed no malpractice in not filing a demurrer in the face of these decisions.
Furthermore, we note that nothing in the record or the opinion of the Court of Criminal Appeals indicates that Tyree has made any claim of inadequate assistance of counsel regarding Hendrix's representation of him.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | September 27, 1985 |
06025c92-2880-4121-a7ef-7619705a4de2 | Guthrie v. Hartselle Medical Center, Inc. | 477 So. 2d 377 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 377 (1985)
Andrew J. GUTHRIE
v.
HARTSELLE MEDICAL CENTER, INC., et al.
84-259.
Supreme Court of Alabama.
October 4, 1985.
Benny L. Roberts, Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
Joe Calvin, Decatur, for appellees.
ALMON, Justice.
Summary judgment was granted for the defendants in an action for the wrongful death of a minor.
Although the caption read "Andrew J. Guthrie, as the personal representative and administrator of the Estate of Crystal Guthrie, deceased, Plaintiffs," the complaint began alleging that "the plaintiff, Andrew J. Guthrie, is the personal representative of his minor daughter, Crystal F. Guthrie, deceased, who met her demise on or about June 20, 1982."
This complaint was filed March 28, 1983, within the two-year period for bringing wrongful death actions. Andrew Guthrie was not appointed personal representative, however, until more than two years after the death of his minor daughter.
The defendant's motion for summary judgment was granted on the authority of Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So. 2d 98 (1974), and Downtown Nursing Home, Inc. v. Pool, 375 So. 2d 465 (Ala.1979), cert. denied, 445 U.S. 930, 100 S. Ct. 1318, 63 L. Ed. 2d 763 (1980).
These two cases were commenced by persons purporting to be personal representatives, as required by Code 1975, § 6-5-410, and its earlier counterpart, Code 1940, Tit. 7, § 123. However, those persons were not appointed administrators until after the expiration of the two-year period. This Court held in each case that the suit, as originally filed, was a nullity, as there was, in fact, no person capable of bringing the suit.
*378 We find this case distinguishable because suit was brought under Code 1975, § 6-5-391, which provides that the father, or, in certain cases, the mother, or the personal representative after six months, is the proper party plaintiff in an action for the wrongful death of a minor child.
Andrew Guthrie is and was at all times the proper person to bring suit for the wrongful death of his minor daughter. The fact that he brought suit in the wrong capacity, i.e., purported personal representative, does not render the suit a nullity, because this defect is amendable. The face of the complaint shows that he is the proper person to bring the suit.
The amendment changing the indication of his capacity to that of father of the deceased child should have been allowed, and it would relate back to the time suit was filed.
In this case the father of the deceased minor child was the proper party, with capacity to bring suit, and he had the capacity to do so at the time the suit was filed. In Strickland and Downtown Nursing Home, Inc., there was no party with capacity to bring suit before the time limitation expired.
The judgment of the circuit court is hereby reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | October 4, 1985 |
204bd68c-1f2a-4597-83bb-fcefb1c42862 | Wilburn v. Larry Savage Chevrolet, Inc. | 477 So. 2d 384 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 384 (1985)
Billy WILBURN
v.
LARRY SAVAGE CHEVROLET, INC., and General Motors Corporation.
83-1099.
Supreme Court of Alabama.
October 4, 1985.
Robert M. Shipman, Huntsville, for appellant.
*385 Danny D. Henderson of Williams, Spurrier, Moore, Rice, Henderson & Grace, and James T. Baxter III, of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellee Larry Savage Chev., Inc.
Jerry B. Ange of Ford, Caldwell, Ford & Payne, Huntsville, for appellee General Motors Corp.
ALMON, Justice.
Billy Wilburn, plaintiff, brings this appeal from a judgment based on a directed verdict for defendant, Larry Savage Chevrolet, Inc. Wilburn brought the action for breach of contract, breach of warranty, and fraud arising from the sale of an automobile. Wilburn alleged that the defendant told him the automobile was new, was in proper working order, and had nothing wrong with it. He alleged that he discovered numerous defects which the defendant refused or failed to repair.
Wilburn also brought suit against General Motors Corporation, but the trial court dismissed General Motors as a party defendant. On February 21, 1984, the trial court made an express finding that there was no just reason for delay in the entry of final judgment in favor of General Motors, and entered such a judgment. Rule 54(b), A.R.Civ.P. Wilburn did not make any post-judgment motion or file a notice of appeal regarding this judgment until April 24, 1984. On that date he filed a motion for new trial raising claims of error both as to the dismissal of General Motors and as to the April 2 directed verdict for Larry Savage Chevrolet. After the denial of this motion, he filed a notice of appeal naming both Larry Savage Chevrolet and General Motors as appellees. Because Wilburn did not file notice of appeal within 42 days of the entry of final judgment in favor of General Motors, his appeal from that judgment is due to be dismissed. Rule 4, A.R. A.P.
The entire evidence offered by Wilburn was his own testimony, eleven repair orders (some of which were duplicates), and the contract of sale. He also placed the secretary-treasurer of Larry Savage Chevrolet on the stand to ask the price of various items alleged to be defective, but the witness did not know any of the prices. The following summary of the evidence comes from Wilburn's testimony.
On January 4, 1982, Wilburn purchased a 1981 Chevrolet Monte Carlo from Larry Savage Chevrolet. He testified that the next day he looked more closely at the car and noticed that it had deep scratches on it, that the paint did not match all around the car, that the dashboard was "crinkled up" and looked old, and that the seats sagged and looked old. He said that the car made a bumping noise, that air came in around the windows, and that the clock and the radio did not work properly.
He took the car back to Larry Savage Chevrolet, which offered to paint the car. He testified that he told the salesman that he did not want the car painted, but wanted to return the car and take back the car he had traded in. The salesman told him the company could not do that because Wilburn's car had already been sold. Wilburn did not say that he made any further effort to rescind the sale.
The repair orders indicate that Larry Savage Chevrolet did work on the car in January, February, March, and August of 1982. Wilburn said the company did not bill him for any of the work. When asked if any of the things of which he had complained were still in need of repair, he answered, "All of them is still in need of repair. What they done, they done a sloppy job." When asked to be more specific, he said, "The catalytic converter went out on it," and "the dash is still messed up." The court sustained objections to Wilburn's testifying as to what it would cost to repair the dashboard. He testified that he had not taken the car for repairs anywhere other than Larry Savage Chevrolet, but that he had taken it elsewhere for an estimate on a paint job. He did not say what that estimate was.
In later testimony, Wilburn said that the tires had knots on them and the interior lights and the horn did not work. The *386 court sustained objections to questions put to Wilburn about the cost to repair these and other problems which he had previously mentioned.
After this testimony, Wilburn rested his case. The court told his attorney that he had not proved breach of contract or fraud because he had not proved that the car was not new, and that he had not proved breach of warranty because "You have no evidence that he carried the car back and they failed to comply or to fix anything that was under warranty." The court suggested that he review his complaint and proof and reopen his case the next morning. He did so, but added nothing further. The court granted defendant's motion for a directed verdict.[1]
The only issue that Wilburn raises is the sufficiency of the evidence to survive the motion for directed verdict. He cites no law on the substance of his action, but only cases regarding the scintilla rule and the standards for directed verdict. Appellee cites Courtesy Ford Sales, Inc. v. Clark, 425 So. 2d 1075 (Ala.1983); Montgomery Lincoln-Mercury, Inc. v. Gaioni, 402 So. 2d 928 (Ala.1981); Boulevard Chrysler-Plymouth, Inc. v. Richardson, 374 So. 2d 857 (Ala.1979); and Hall Motor Co. v. Thurman, 285 Ala. 499, 234 So. 2d 37 (1970), as establishing the standards by which car purchasers may recover in fraud for being induced to purchase automobiles falsely represented to be new and in good condition.
The trial court was correct in ruling that Wilburn presented no evidence on which he could recover. He made no proof of the contract other than the written document and the testimony that the salesman represented the car to be new and in good condition. The written contract describes the car as new. As will be discussed under the issue of fraud, his proof would not support a finding that the car was not new. The trial court committed no error in ruling that the statement that the car was in good working condition went properly to a breach of warranty or fraud count, not a breach of contract count.
Wilburn offered no proof of the express warranty that normally comes with a new car. The contract of sale clearly set out the following "Disclaimer of Warranty," right next to the line where Wilburn signed the contract:
The repair orders showed that Larry Savage Chevrolet worked on the problems, and they tended to show that successful repairs were achieved in most cases. All of this apparently was done under some warranty at no charge to Wilburn. As noted above, however, Wilburn did not prove any written express warranty and the contract specifically disclaimed any orally expressed warranties or implied warranties. Nothing in the record has any tendency to prove breach of warranty.
Wilburn's testimony would not support a finding that the car was not a new car. The sales contract shows the odometer reading as 27.6 miles, and Wilburn offered no proof to contradict this reading or to show that the car had previously been sold at retail. Nor did he present any proof that the car was so extensively defective that it could not be called "new" under the holdings of the cases cited above. Most of the problems of which Wilburn complained were merely "bugs," minor defects common to many new cars. The allegations that the paint was scratched and discolored, that the dashboard was in poor *387 condition, and that the seats sagged did not tend to prove that the car had previously been sold at retail or that it had been damaged in a wreck so as to require major alterations or repairs. See Boulevard Chrysler-Plymouth, supra. Indeed, Wilburn presented no evidence that Larry Savage Chevrolet had made any repairs to the car before the sale or was aware of any defects in the car. Thus, the trial court committed no error in holding that Wilburn had failed to prove a material misrepresentation.
Moreover, the items relating to the appearance of the car should have been readily visible upon even a casual inspection. To the extent that Wilburn felt that the car was not "new" because its appearance was not that of a new automobile, his testimony negates any finding of a reasonable reliance on a statement that it was new.
Wilburn presented no evidence upon which he could recover against Larry Savage Chevrolet. The judgment on the directed verdict in favor of Larry Savage Chevrolet is affirmed. The appeal from the final judgment in favor of General Motors is dismissed.
THE APPEAL FROM THE FINAL JUDGMENT IN FAVOR OF GENERAL MOTORS IS DISMISSED. THE JUDGMENT IN FAVOR OF LARRY SAVAGE CHEVROLET IS AFFIRMED.
MADDOX, FAULKNER, JONES and SHORES, JJ., concur.
TORBERT, C.J., concurs in the result.
[1] We note that, in addition to the failure of Wilburn's proof to meet the requisites of a claim for breach of warranty, express or implied, no claim was asserted for violation of the Magnuson-Moss Act (15 U.S.C. § 2301, et seq.). Compare Gaylord v. Lawler Mobile Homes, Inc., 477 So. 2d 382 (Ala.1985). | October 4, 1985 |
11d51336-4c74-4a9e-9854-2a1370eded42 | Teng v. Saha | 477 So. 2d 378 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 378 (1985)
Lincoln TENG
v.
Hrishikesh SAHA.
84-317.
Supreme Court of Alabama.
October 4, 1985.
Raymond Uhrig, Huntsville, for appellant.
Frederick L. Fohrell and Roscoe Roberts, Jr. of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
TORBERT, Chief Justice.
This appeal arises out of a grant of summary judgment in favor of defendant, Hrishikesh Saha, and against plaintiff, Lincoln Teng, in Teng's action for interference with an employment relationship. Several issues are raised on appeal, but we only need address the statute of limitations issue to decide the case.
Saha argues that Teng's action is barred by the one-year statute of limitations, Code 1975, § 6-2-39(5). Teng argues that the action is governed by the six-year statute of limitations, Code 1975, § 6-2-34(2). The resolution of this issue depends upon whether the wrongful act alleged gives rise to an action in trespass or trespass on the case. Sasser v. Dixon, 290 Ala. 17, 273 So. 2d 182 (1973). In Sparks v. McCreary, 156 Ala. 382, 47 So. 332 (1908), the Court *379 held that an action for wrongful interference with business relationships was in case. The Court reached that conclusion because the wrongful conduct of the defendant did not involve "actual or constructive assumption of possession [of the property of another] or force in any form [and] was, on the averments, purely consequential in the damnifying consequence alleged to have resulted therefrom." Id., 156 Ala. at 386, 47 So. at 334. Teng alleged that Saha contacted Teng's supervisors and attempted to have Teng fired. Saha's alleged wrongful conduct is analogous to the conduct of the defendant in Sparks. Therefore, the action is in case, and § 6-2-39(5) controls. Because the complaint was filed more than one year after the cause of action accrued, the action is time barred, and summary judgment was appropriate.
AFFIRMED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., dissents. | October 4, 1985 |
48f9d5a0-e850-49e8-9926-b5254fe2999b | Holman v. ALA. FARM BUREAU MUT. CAS. INS. CO. | 476 So. 2d 107 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 107 (1985)
J.P. HOLMAN, as Administrator of the Estate of James Randall Holman, deceased,
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY.
84-192.
Supreme Court of Alabama.
September 13, 1985.
Kenneth J. Mendelsohn of Beasley & Wilson, Montgomery, for appellant.
John F. Dillon IV of Dillon, Kelley & Brown, Alexander City, for appellee.
PER CURIAM.
This appeal by J.P. Holman, as administrator of the estate of his son, James Holman, is from a declaratory judgment denying J.P. Holman a defense and coverage in a tort action brought against James Holman. This judgment was based upon the trial court's finding that James Holman had violated a clause in the insurance contract which excluded coverage for "bodily injury or property damage which is expected or intended by the insured."
Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. (Farm Bureau), issued a homeowner's policy to J.P. Holman which contained the following exclusion:
*108 James Holman, as a member of the J.P. Holman household, was covered by this policy.
The plaintiff in the lawsuit against James Holman, Bruce Carlton, complained that he was assaulted, beaten, robbed, and deprived of property by James Holman on the morning of August 21, 1983. Carlton sued the Holman estate for damages arising from this incident. J.P. Holman (Holman) demanded that Farm Bureau defend this suit under the terms of his homeowner's insurance. Instead, Farm Bureau filed a complaint for declaratory judgment, seeking a declaration of rights under its insurance contract with Holman.
In his answer to this complaint, Holman requested trial by jury, but the trial court struck the jury demand, heard the evidence without a jury, and entered judgment in favor of Farm Bureau. Holman filed a motion for new trial, but it was denied by the trial court. Holman appeals.
The issues for review are:
(I) Did the trial court err in striking Holman's jury demand?
(II) Is there sufficient evidence to support the trial court's judgment in favor of Farm Bureau?
In declaratory judgment actions, where the insurer asks for a declaration to the effect that it is under no obligation to the insured, the insured is entitled to a jury trial upon proper demand. Major v. Standard Accident Insurance Co., 272 Ala. 22, 128 So. 2d 105 (1961). The appellant Holman did make a proper jury demand. However, this Court must consider whether Holman subsequently waived this demand at the time of the ore tenus, nonjury trial.
This Court, in Ingram v. Omelet Shoppe, Inc., 388 So. 2d 190 (Ala.1980), has held that appellant's request for a jury trial does not preclude waiver of that request. Waiver of a jury demand may arise from "any conduct or acquiesence inconsistent with an intent to insist upon jury trial." Id., at 195, quoting Elwood-Gladden Drainage Dist. of Doniphan County v. Ramsel, 206 Kan. 75, 79, 476 P.2d 696, 700 (1970). Holman made a demand for a jury trial on August 1, 1984. On September 14, 1984, the case was tried ore tenus without a jury. No objection was made at that time to the fact that there was no jury. On September 17, 1984, the trial court entered an order formally striking the jury demand. Appellant's "conduct or acquiescence" in participating in the hearing without requesting a ruling on the jury demand or objecting to the lack of a jury is inconsistent with an intent to insist upon jury trial. Therefore, Holman's contention that a jury trial was improperly denied is without merit.
Whether an exclusion like that in Holman's insurance policy, relating to "bodily injury or property damage which is expected or intended by the insured," has been violated is a question of fact, and not of law. Hartford Fire Insurance Co. v. Blakeney, 340 So. 2d 754 (Ala.1976). When the trial court is the factfinder, various presumptions of correctness control. Under the ore tenus rule, when the trial court hears disputed evidence presented ore tenus without a jury, its findings of fact are favored with a presumption of correctness and will not be disturbed on appeal unless clearly erroneous or unsupported by credible evidence under any reasonable aspect of that evidence. Stallworth v. First National Bank of Mobile, 432 So. 2d 1222 (Ala.1983).
In light of this presumption, with regard to whether there is sufficient evidence to support the judgment of the trial court, the record shows the following:
On the evening of August 20, 1983, at the Exit Inn, a bar in Tallapoosa County, Bruce Carlton shot three games of pool for money against James Holman. James won two games, but Carlton won the other. In the early morning, Carlton finally left the *109 bar for home. James apparently left soon after.
While driving down the highway, James spotted Carlton's car. Turning to his passenger, Harold Dozier, who testified to these events at trial, James declared "that's that son of a bitch that took all my money from me." James followed Carlton. When he caught up to Carlton, he forced him to pull over.
When Carlton rolled down his window to speak to his follower, James, without warning, hit Carlton in the face with his fist. In the dark, Carlton could not recognize his attacker; Dozier testified that the attacker was James Holman.
James continued to strike Carlton in the face. After six or seven blows to the face, Carlton tried to protect himself by lying down in the car seat. Dozier testified James pulled a gun on him when he tried to help Carlton. James used the gun to strike a blow to Carlton's head. He then robbed Carlton, set fire to his car, and drove away.
We cannot say the trial court's judgment was clearly erroneous or unsupported by credible evidence. Based upon all this evidence, for the purpose of determining the applicability of the insurance policy exclusion, the trial court could reasonably have concluded that James Holman intended to cause bodily injury to Bruce Carlton and damage to Carlton's property.
For the foregoing reasons, the judgment below is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON, BEATTY and ADAMS, JJ., concur. | September 13, 1985 |
caf51199-7398-4af1-b2d1-a33d3e0eaf4e | Clardy v. Capital City Asphalt Co. | 477 So. 2d 350 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 350 (1985)
L.L. CLARDY
v.
CAPITAL CITY ASPHALT COMPANY and Southeast Contractors, Inc.
83-1313.
Supreme Court of Alabama.
September 27, 1985.
*351 James L. Shores, Jr., of Shores & Booker, Birmingham, for appellant.
Richard B. Garrett, of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
HOUSTON, Justice.
This is a suit for declaratory judgment. The trial court entered judgment for the plaintiff. The defendant appeals. We affirm in part and reverse in part and remand.
Capital City Asphalt Company, Inc. (Capital City), filed a complaint for declaratory judgment seeking an injunction and a declaration of rights to keep Clardy from interfering with Capital City's removal of its machinery, equipment, and materials from certain land used for sand and gravel mining which was subleased by Clardy to Capital City. The injunction was granted on December 21, 1976, conditioned upon Capital City's paying to Clardy the sum of $6,250 as minimum royalties (rental) for the period from August 1976 through December 1976. The money was paid; and all machinery, equipment, and materials were removed from said land by Capital City, except a pile of merchantable sand, the direct cost of which to Capital City was $15,847.50. The trial court also ruled that if the materials, equipment, and machinery were not removed from said land by January 21, 1977, Capital City would owe Clardy a pro rata portion of $1,250 per month until such equipment, machinery, and materials were removed. No appeal was taken from this. The remaining issues were (1) the obligations and duties of Capital City under the lease relating to reclamation; (2) the amount of damages, if any, for Clardy's alleged removal of materials belonging to Capital City; and (3), under a counterclaim, the amount of damages, if any, owed by Capital City to Clardy and the intervenors (owners of the land) for breach and violation of the lease between Clardy and Capital City. These issues were tried by the court without a jury on May 28-29, 1980, the evidence being presented ore tenus. On July 6, 1984, the trial court ordered that Capital City be permitted entry upon the leased premises for the purpose of doing reclamation. The trial court ordered Clardy to pay Capital City damages of $15,847.50, interest, and costs; and found in Capital City's favor on the counterclaim filed by Clardy and certain intervenors. Only Clardy appeals.
Evidence was presented that Capital City incurred direct material and labor expenses of $77,377.45 in connection with Clardy's preventing Capital City from entering the premises to remove its equipment, machinery, and material.
*352 This evidence was objected to and the trial judge admitted it, but reserved ruling on its ultimate admissibility. Nowhere in the judgment does the trial court indicate whether that evidence was considered.
Without objection, evidence was introduced that $15,847.50 was the direct cost to Capital City of the stockpile of merchantable sand which was left by Capital City on the leased premises when the other materials and the machinery and equipment were removed.
The trial court's findings were as follows:
Distinguished counsel for Capital City and Clardy assumed that the award of $15,847.50 was for the conversion of the stockpile of sand.
The appellee contends that the ore tenus rule applies. The appellant contends that this rule is not applicable, because, he argues, the trial court misapplied the law to uncontroverted facts which establish as a matter of law that the appellant is not liable to the appellee for damages for conversion.
There was a stockpile of 31,695 tons of concrete sand, which was the property of Capital City, on the leased premises, which were under the control and possession of Clardy. This sand was removed. The evidence was in direct conflict as to whether it was removed by Capital City. Clardy and his son were in the business of selling sand at retail. There was no evidence that this sand was removed by Clardy or under his direction.
The trial court obviously determined that the sand was not removed by Capital City.
A conversion is said to consist "`either in the appropriation of the thing to the party's own use and beneficial enjoyment, or its destruction, or in exercising of dominion over it, in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.'" Geneva Gin & Storage Co. v. Rawls, 240 Ala. 320, 322, 199 So. 734, 735 (1940), (quoting Conner & Johnson v. Allen & Reynolds, 33 Ala. 515, 517 (1859)); Greer v. Carl Johnson Motor Co., 269 Ala. 617, 114 So. 2d 907 (1959); Jones v. Americar, Inc., 283 Ala. 638, 219 So. 2d 893 (1969).
The bare possession of property without some wrongful act in the acquisition of possession, or its detention, and without illegal assumption of ownership or illegal user or misuser, is not conversion. Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am.St.Rep. 789 (1890).
Considering all the evidence most favorably to Capital City, it at most shows that Capital City left sand on land formerly leased by it from Clardy and that the sand was removed by someone. There is not a scintilla of evidence that Clardy converted this sand, and the judgment against Clardy for $15,847.50 must be reversed.
The other two issues involved questions of fact. Since this case was heard nonjury by the trial judge and decided by him as factfinder, the ore tenus rule applies. There is thus a presumption of correctness in the trial judge's findings and his judgment based on those findings should not be disturbed unless palpably wrong, without supporting evidence, or manifestly unjust. Skinner v. Florence, 439 So. 2d 118 (Ala.1983); Chaffin v. Hall, 439 So. 2d 67 (Ala.1983); Hines v. Heisler, 439 So. 2d 4 (Ala.1983); General Electric Credit Corp. v. Strickland Division of Rebel Co., 437 So. 2d 1240 (Ala.1983); Mills v. Bose, 435 So. 2d 1264 (Ala.1983); Johnson v. Brewington, 435 So. 2d 64 (Ala.1983); Waste Disposal, Inc. v. Stewart, 432 So. 2d 1255 (Ala.1983). In this case, in addition to having his notes and his recollections of credibility and demeanor, the trial judge was provided with a full transcript of the trial testimony and extensive briefs by both sides. The Court cannot say that the trial *353 judge's decision was palpably wrong, without supporting evidence, or manifestly unjust insofar as the other two issues are concerned, and the ruling of the trial court on these two issues is affirmed.
This case is due to be reversed and remanded on the first issue presented and affirmed on the remaining two issues.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | September 27, 1985 |
c71886f9-41b8-427a-9c9b-b89f0993fbe2 | Stewart v. Lowery | 484 So. 2d 1055 | N/A | Alabama | Alabama Supreme Court | 484 So. 2d 1055 (1985)
Bennie V. STEWART
v.
Hollis M. LOWERY and Maudine G. Lowery.
No. 83-1167.
Supreme Court of Alabama.
October 4, 1985.
Rehearing Denied February 28, 1986.
*1056 Clarence T. Hellums, Jr. of Hellums & Meigs, Centreville, for appellant.
Douglas McElvy of Ford, McElvy & Ford, Centreville, for appellees.
FAULKNER, Justice.
This is a land line case. Hollis Lowery and his wife, Maudine, brought an action against Benny Stewart alleging trespass and intentional infliction of emotional distress. The jury returned a verdict against the defendant for $12,500.00. The trial court entered a judgment based on the jury's verdict; it denied the defendant's subsequent motion for a judgment notwithstanding the verdict or in the alternative a new trial. The defendant appeals.
The Lowerys owned a 79-acre farm in Bibb County which had been in the Lowery family for several generations. During the early 1950s Mr. Lowery borrowed money from a bank to finance the purchase of a tractor and other farming implements and he mortgaged the farm to secure repayment of the loan. Lowery was unable to fully repay the loan. Mr. Lowery was visited *1057 one day by a Mr. John Desmond, who told him that the bank was preparing to foreclose on its mortgage. Mr. Desmond offered to buy the property. Fearing that he would lose his home, Lowery agreed to sell the parcel to Desmond for what he owed on the the tractor if Desmond would agree to allow Lowery and his wife to retain title to the "John A. Lowery houseplace lot" and all the buildings on the lot. Desmond agreed. On December 31, 1954, Mr. and Mrs. Lowery conveyed all of the farm except the houseplace lot to Mr. Desmond. The defendant, Mr. Stewart, is a successor in title to Mr. Desmond. The controversy in this case concerns the boundaries of the houseplace lot.
In order to obtain a description of the property to draw up the deed from Lowery to Desmond, Desmond and another man went out to the property with a steel tape and marked off about three acres around the house and set stobs down to designate the boundaries. The description of the houseplace lot which was incorporated into the deed states that the Lowerys retained title to "3 acres more or less ... known as the old John A. Lowery houseplace ... with the buildings thereon," more particularly described by a series of calls beginning at a quarter-quarter section and going first "due west," then "in a southwesterly direction," then in a "northwesterly direction," and so forth. Because each angle described by the deed could vary by as much as ninety degrees, it is impossible to determine with any precision from reading the deed where the boundaries of the property are.
Both the Lowerys and John Desmond testified as to their understanding of what was conveyed by the deed. John Desmond testified that he placed a stob representing the beginning point of the metes and bounds description about fifteen or twenty feet in front of the Lowerys' house. If that point represents the southern boundary of the property, the houseplace lot ends along the northern edge of the road running in front of the Lowerys' home. Desmond testified that when he purchased the property he thought he was buying all the land south of the road. Mr. Lowery testified that when he conveyed the property to Desmond he intended to convey all the land south of a hedgerow which was south of the road. He presented evidence to the effect that there was a corn crib, a chicken house, and a storm shelter located south of the road and north of the hedgerow. The Lowerys claim that the buildings south of the road were included among the buildings on the John A. Lowery houseplace lot. Moreover, he and other members of his family testified that they had exerted exclusive dominion and control over the property up to the hedgerow until this dispute arose.
John Desmond conveyed the farm to George Desmond, who conveyed it to Bennie Stewart in 1978. During the more than twenty years which elapsed between the time of the original conveyance and Stewart's purchase, the corn crib and chicken house had fallen in and their remnants had been removed. A paved area used for vehicles to turn around in, some trees, and the hedgerow remained in the area in question. Beyond that was an open field which was undisputedly owned by Stewart.
After he bought the property, Stewart had the land south of the road bulldozed in order to facilitate the erection of a fence. This destroyed the hedgerow and knocked the trees down. The dispute arose when Stewart began building the fence.
Stewart raised four issues on appeal:
After a confrontation with Stewart, Lowery became ill and had to be hospitalized. *1058 Notes taken by Lowery's physician during an examination stated that Lowery had "been worried over a boundary dispute with his neighbor for several weeks," and added, "This has created a lot of anxiety and concern for him. He has developed more and more epigastric pain. The findings suggest peptic ulcer." This statement was allowed into evidence over the defendant's objection.
The defendant argues that admission of the statement into evidence constituted reversible error. He contends that declarations as to the cause of a person's injury made after the event are inadmissible even when made to an attending physician, citing Maryland Casualty Co. v. McCallum, 200 Ala. 154, 156, 75 So. 902 (1917). Stewart points out that the physician had treated Lowery for peptic ulcer problems and colitis for several years and, therefore, argues that information about the boundary dispute was not necessary to his diagnosis and treatment.
A physician who is properly qualified as an expert and who has treated a patient can give his opinion as to the nature, cause, and extent of the patient's condition. State Realty Co. v. Ligon, 218 Ala. 541, 543, 119 So. 672 (1929). See C. Gamble, McElroy's Alabama Evidence, § 110.01(1) and (2) (3d ed. 1977). The physician may also testify to the facts on which that opinion is based. In addition to relating his own observations of the patient, the doctor may testify to statements made by the patient in the form of a medical history so long as the facts in the history are part of the basis of the physician's opinion of the nature and extent of the injury. Lowery v. Jones, 219 Ala. 201, 202, 121 So. 704 (1929); Alabama Power Co. v. Edwards, 219 Ala. 162, 166, 121 So. 543 (1929); Birmingham Union Railway Co. v. Hale, 90 Ala. 8, 10, 8 So. 142 (1890); Frazier v. State, 366 So. 2d 360, 365-66 (Ala.Crim.App.1979).
The statements made to the physician may not be admitted for the purpose of establishing what happened or who was at fault. Examples of statements which have been ruled admissible include a statement that a patient was injured where there were no references to the cause or manner of the injury, Birmingham Union Railway Co. v. Hale, supra; a statement that the patient had been injured while riding a streetcar, Alabama Power Co. v. Edwards, supra; a statement to the effect that the patient had been in an automobile accident, McLaney v. Turner, 267 Ala. 588, 104 So. 2d 315, 324 (1958); and a statement that the patient had been "involved in this trouble in his home by an intruder," and that "They got into a scramble and in some way he injured his left knee and right wrist," Frazier v. State, 366 So. 2d 360, 365 (Ala.Crim.App.1979).
The proposition in the opinion relied on by the defendant was an abstract statement of law given as dictum. See Maryland Casualty Co. v. McCallum, 200 Ala. 154, 156, 75 So. 902 (1917). Since the opinion does not relate the patient's statement to which it is referring, it is impossible to determine how the rule was applied in that instance. Based on the other cases speaking to that question, however, it is apparent that the trial court's ruling in the present case was correct. It is medically accepted that stress is a contributing factor in the development and aggravation of ulcers. The statement that the patient suffering with the symptoms of ulcers is experiencing stress related to a boundary line dispute can fairly be described as a part of the basis of the treating physician's opinion. Moreover, the naked statement that the plaintiff was involved in a land line *1059 dispute did not suggest a position as to the merits of the dispute. Nor does it suggest the identity of the other party to the dispute.
After the last witness called during the plaintiff's case in chief finished testifying, plaintiff's attorney sought to introduce certain exhibits which had been marked but not admitted into evidence. Defendant stated that he objected to the introduction of any exhibits which were not "offered through witnesses." On appeal the defendant argues that two of the exhibits should not have been admitted because they were not properly authenticated.
One of the exhibits admitted into evidence was an affidavit of adverse possession. The other was a photograph of a portion of the disputed property. Without discussing the merits of defendant's objections to the admission of the affidavit, we note that the affidavit was discussed by Mr. Stewart during his testimony and that he read a portion of the affidavit into the record in response to questions from his attorney. Having used the affidavit in connection with his testimony, he cannot challenge its admission into evidence. See Payne v. Jones, 284 Ala. 196, 224 So. 2d 230, 234 (1969); Taylor v. State, 249 Ala. 130, 30 So. 2d 256, 259 (1947); Davis v. State, 35 Ala.App. 144, 44 So. 2d 275 (1950). The photograph is one of numerous photographs of the property which were introduced. It is of no special significance, and any error associated with its introduction into evidence was harmless. Rule 45, A.R. A.P.
Defendant argues that the trial court erred in failing to grant his motion for a directed verdict on the count alleging intentional infliction of emotional distress. He made the motion for a directed verdict at the close of the plaintiff's case and renewed it at the close of all the evidence. Plaintiff's attorney responded "Fine; I'll stipulate to that. That the jury won't be charged as far as that outrageous conduct claim is concerned." In its charge to the jury the trial court read the complaint and the answer and charged the jury without referring to the tort of outrage.
On appeal defendant argues that the trial court improperly put the issue of outrageous conduct before the jury without charging the jurors on the elements of the action. We disagree. This issue was raised for the first time on appeal. At the trial the defendant objected neither to the reading of the complaint nor to the failure of the court to mention the tort of outrage during the jury charge. No party may assign as error the giving of an erroneous charge unless he objects to the charge given before the jury retires. A.R.Civ.P. 51.
Finally, the defendant argues that the evidence did not support the jury's verdict. Many of his arguments are, in effect, requests for us to weigh the evidence. That is something we cannot do. This Court must review the tendencies of the evidence most favorably toward the prevailing party and indulge such inferences as the jury was free to draw. Mahoney v. Forsman, 437 So. 2d 1030 (Ala.1983).
The description of the parcel in the deed to John Desmond was too ambiguous to determine solely from the information in the deed whether the disputed area was conveyed. It refers to the John A. Lowery houseplace lot and the buildings thereon and contains a metes and bounds description with calls which do not state the degree of the angles constituting the corners, but merely suggest general directions (e.g., "thence go in a southwesterly direction 232 feet to a steel post; thence go in a northwesterly direction for a distance of 392 feet to a steel post").
When a description is ambiguous, parol evidence is admissible to show what the parties intended to convey. Reynolds v. Trawick, 197 Ala. 165, 72 So. 378 (1916). *1060 The Lowerys testified that there was a corn crib, a storm shelter, and a cotton house south of the road, which they intended to retain as part of the houseplace lot and that the recognized boundary between the properties was the hedgerow which Stewart plowed up.[1] Therefore, there was sufficient evidence to support a finding that the property in question was retained by the Lowerys.
Punitive damages may be awarded in a trespass action where the trespass was accompanied by rudeness, wantonness, recklessness, or an insulting manner. First National Bank of Pulaski, Tenn. v. Thomas, 453 So. 2d 1313 (Ala. 1984). In the context of a trespass action, the word "wanton" refers to an invasion of the plaintiff's property with knowledge of the violation of the plaintiff's rights. Calvert & Marsh Coal Co. v. Pass, 393 So. 2d 955, 956 (Ala.1980). Without a discussion of the particulars of the dispute, it is fair to say that there was evidence from which the jury could have found that even after he was put on notice that the Lowerys claimed the property between the road and the hedgerow Stewart continued coming on that property and piling debris, erecting fence posts, and doing other acts which could have led the jury to conclude that Stewart attempted to take over property that did not belong to him.
The trial court's judgment is hereby affirmed.
AFFIRMED.
ALMON, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., concurs specially with opinion.
MADDOX, J., concurs specially with opinion.
TORBERT, Chief Justice (concurring specially).
I agree with the majority to affirm the judgment of the trial court. Part III of the opinion correctly holds that any error possibly made by the trial court in its instructions to the jury on intentional infliction of emotional distress was not properly preserved. Therefore, this Court may not review the alleged error. Conley v. Beaver, 437 So. 2d 1267, 1270 (Ala.1983); Rule 51, A.R.Civ.P.
However, I do not believe that intentional infliction of emotional distress, also known as the tort of outrage, would have been a proper cause of action to justify the damages awarded in this case. While the alleged wrongful act is sufficient to support an award of punitive damages for trespass, the trespassory act does not amount to the outrageous conduct required under the independent tort of outrage. The proper cause of action here was trespass, and not the tort of outrage.
MADDOX, Justice (concurring specially).
As I understand the opinion, the judgment of the trial court did not include any damages for the claim of outrageous conduct; therefore, because I believe the jury verdict for punitive damages could be sustained on the trespass claim, I concur in the result.
[1] While the complaint did not request the court to establish the boundaries of the properties and did not seek to quiet title to the disputed property, a finding that the Lowerys owned part of the property south of the road was necessary to a finding that the defendant had trespassed on the plaintiffs' property, since the acts in question took place south of or on the road. | October 4, 1985 |
f30c869a-a64d-4412-8a97-4751838e46fd | Alabama Citizens Action Program v. Kennamer | 479 So. 2d 1237 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1237 (1985)
ALABAMA CITIZENS ACTION PROGRAM, et al.
v.
Kena KENNAMER, City Clerk, City of Guntersville, et al.
84-180.
Supreme Court of Alabama.
November 1, 1985.
*1239 Harold P. Knight, and Hugh A. Locke, Jr., Birmingham, for appellants.
Oakley Melton, Jr., of Melton & Espy, Montgomery, and George M. Barnett, Guntersville, for appellees.
Walter R. Byars, of Steiner, Crum & Baker, Montgomery, for amicus curiae, Alabama Wholesale Beer and Wine Ass'n.
BEATTY, Justice.
Plaintiffs appeal from the trial court's entry of summary judgment for defendants in a suit challenging the constitutionality and the validity of the enactment of Act No. 84-408, 1984 Alabama Acts, p. 955.[1]
Act No. 84-408 allows municipalities having a population of 7,000 or more to change their status regarding the sale of alcoholic beverages from dry to wet or wet to dry by a municipal option election. Furthermore, under the statute if a municipality having a population of 7,000 or more located in a dry county votes to allow the sale of alcoholic beverages within its corporate limits, then every municipality having a population of 4,000 or more located in the same county may hold a similar election.
The journals of the senate and house of representatives indicate that the bill was properly passed and presented to the governor for his signature on May 10, 1984, the 29th legislative day. The senate journal also indicates that the senate adjourned sine die on May 21, 1984, the 30th legislative day, without receiving the return of the bill with the governor's veto message.
Pursuant to Act No. 84-408, the City of Guntersville scheduled a wet/dry referendum for July 10, 1984. Plaintiffs, two groups of concerned citizens and a member of the house of representatives, filed a petition on June 25, 1984, seeking to enjoin the city from holding the referendum and asking the court to declare Act No. 84-408 unconstitutional. Plaintiffs later withdrew their petition for a preliminary injunction retaining their constitutional challenge, and the city voted in favor of the sale of alcoholic beverages. After a hearing, the trial court granted defendants' motion for summary judgment on plaintiffs' challenges to the validity of the statute.
Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), A.R.Civ.P. If the material facts are not in dispute, a question of law is presented to be decided by the trial court. Kitchens v. Winn-Dixie Montgomery, Inc., 456 So. 2d 45, 47 (Ala.1984). However, if there is a disputed material fact, even a scintilla of evidence supporting the nonmoving party will preclude summary judgment. White v. White, 431 So. 2d 1208, 1209 (Ala.1983).
On appeal, plaintiffs argue that the trial court erred in granting summary judgment on several issues. First, plaintiffs claim that Act No. 84-408 was improperly enacted into law. They presented evidence that three members of the house of representatives, who were shown by the journal as voting in favor of the bill, were not present and did not vote. Plaintiffs argue that other members of the house of representatives voted more than once, in violation of the rules of the house of representatives, and that this action resulted in the bill's passing by one vote. Plaintiffs allege that *1240 allowing some legislators to vote more than once dilutes the representation of the constituents of the other legislators and denies these citizens equal protection of the law.
The journal of the house of representatives indicates that the bill was properly passed. We have no authority to go beyond the legislative journals and look at extrinsic evidence attacking the regularity of the bill's enactment. Opinion of the Justices, 412 So. 2d 279 (Ala.1982). In Robertson v. State, 130 Ala. 164, 169, 30 So. 494, 495-96 (1901), the rule was stated as follows:
Since we cannot consider the extrinsic evidence presented by plaintiffs regarding the voting of legislators on the floor of the house of representatives, there is no genuine issue of material fact in dispute. Defendants were entitled to summary judgment on this issue.
Furthermore, we are not persuaded by plaintiffs' argument that our refusal to enforce rules of the house of representatives is unconstitutional under the principle of Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). In Baker, the United States Supreme Court held that a complaint alleging denial of equal protection based on the failure of the Tennessee legislature to reapportion itself to reflect population changes presented a justiciable constitutional cause of action. The question in the case before us is not whether the citizens of each legislative district are entitled to representation in the legislature proportionate to the population of the district, but whether they are entitled to such representation on each vote taken in the legislature. If we held affirmatively, then every act passed when some senators or representatives were allegedly absent could be challenged on the ground that the constituents of those absent legislators were denied equal representation on that issue. We will not do so, because the effect of such a holding would be to intrude on the inner workings of the legislature.
Plaintiffs also urge that the statute was improperly enacted because the senate's adjournment sine die without the consent of the house of representatives prevented the return of the bill with the governor's veto message.
First, we reject plaintiff's contention that the senate adjourned without the consent of the house of representatives. Art. IV, § 58, of the Alabama Constitution provides:
This provision applies to adjournment sine die. Opinion of the Justices, 254 Ala. 179, 180, 47 So. 2d 642, 643 (1950). However, the provision requires only that each house consent to the adjournment; no particular method of manifestation of such consent is *1241 required. Opinion of the Justices, 288 Ala. 89, 91, 257 So. 2d 336, 338 (1972). Where both houses adopt similar resolutions to adjourn on the same day, there is consent to the adjournment even in the absence of a joint resolution. Id. In the present case, both houses passed resolutions on May 21, 1984, to adjourn sine die. Each house is deemed to have consented to the other's adjournment.
Art. V, § 125, of the Alabama Constitution provides in part:
Plaintiffs claim that the senate prevented the return of the bill by its early adjournment on May 21.
The adjournment contemplated in the emphasized portion of the above quotation is a final adjournment. Opinion of the Justices, 252 Ala. 541, 542, 42 So. 2d 27, 29 (1949). The governor has six calendar days, excluding Sunday and the day on which the bill is presented to him, to return the bill. Building Commission v. Jordan, 254 Ala. 433, 437, 48 So. 2d 565, 569 (1950). If the house in which the bill originated is in recess on the sixth calendar day, the governor has the next two legislative days in which to return the bill. Id. However, if the next legislative day following the recess is the final day on which the legislature can constitutionally meet, the bill must be returned on that day; in such a case there can be no second legislative day following the recess. 254 Ala. at 441, 48 So. 2d at 573. Moreover, if the house in which the bill originated is in session on the day on which the return must be made, an early adjournment on that day does not excuse the governor's failure to return the bill while the house is in session. Opinion of the Justices, 252 Ala. at 543, 42 So. 2d at 29.
The senate journal shows that Senate Bill 76 was presented to the governor on the 29th legislative day, Thursday, May 10, 1984, at 9:05 p.m. Since the legislature was in recess on Thursday, May 17, the sixth calendar day after presentment, not including Sunday or the day of presentment, and the legislature is constitutionally limited to 30 legislative days, Alabama Constitution, Amendment 339, the governor's return of the bill had to be made on the 30th legislative day, Monday, May 21, before adjournment. The senate journal contains no entry of a return or attempted return of Senate Bill 76 on that day. As a matter of law, the adjournment of the Senate at 5:45 p.m. on May 21 was not improper and did not prevent the return of the bill within the meaning of Alabama Constitution, art. V, § 125.
Plaintiffs point to an affidavit indicating that the governor's veto message reached the senate during the vote on the motion for adjournment. In Building Commission v. Jordan, we held that a return of a bill was timely where the return occurred one minute after the motion to adjourn had been made but prior to actual adjournment. 254 Ala. at 441, 48 So. 2d at 572-73. In Jordan, however, those facts appeared in the senate journal. In the present case, there is no indication in *1242 the journal of an attempted return, and we cannot go behind the journal to attack the proceedings of the legislature.
The third challenge of plaintiff to Act No. 84-408 is that the statute is vague for failing to designate a method for determining the population of cities. Plaintiffs maintain that the 1970 federal decennial census controls because that is the one referred to by the legislature in Code of 1975, § 11-40-12, which sets forth eight classes of municipalities. According to the 1970 census, the population of Guntersville is 6,491, less than the 7,000 needed to have a municipal option election under Act No. 84-408. Plaintiffs contend that if the legislature wanted the population to be measured by a different census, it was required to so designate.
Defendants argue that the statute is not vague and that the population of Guntersville was properly determined to be 7,041 people, as listed in the 1980 federal decennial census.
Amendment 375 to the Alabama Constitution allows the legislature to enact a schedule of classes of municipalities "according to any designated federal decennial census." Pursuant to this provision, the legislature enacted Code of 1975, § 11-40-12, based on the 1970 census. Section 11-40-12(b) provides: "The legislature may refer, in the title thereof, to the class or classes of municipalities herein set out, in adopting general laws." In drafting Act No. 84-408, the legislature did not refer to any class of municipalities under § 11-40-12 or to any census.
In the absence of any such designation, we will not assume that the legislature in 1984 intended to refer to the 1970 census. Neither do we conclude that the statute is vague. Section 11-40-6 of Code of 1975, which sets forth the test for determining whether a municipal corporation should be called a city or town, states: "The last census, whether federal or taken as authorized in this title, shall be used in determining the population of a city or town." Furthermore, Act No. 84-408 has been codified in Chapter 2A of Title 28 of the Code. Another chapter of the same title defines "population" as "[t]he population according to the last preceding or any subsequent decennial census of the United States." Code of 1975, § 28-3A-2(21).
We conclude that in the absence of a designation to the contrary the population of cities for the purposes of Act No. 84-408 is determined by the last preceding federal decennial census.
Plaintiffs' next challenge to the statute is that it is a local law, notice of which was not published as required by Alabama Constitution, Amendment 341.
Amendment 397 to the Constitution, which superseded Amendment 375 and amended art. IV, § 110, provides the following definition of a "general law":
In Opinion of the Justices, 373 So. 2d 1051, 1053 (Ala.1979), the identical language of Amendment 375 was interpreted as follows:
We have already determined that subsection (3) is inapplicable because the legislature did not refer to the schedule of municipalities. With regard to subsection (2), however, the legislature did state its intent in defining the class of municipalities to which the statute applies:
Code of 1975, § 28-2A-3. Unlike Peddycoart v. City of Birmingham, 354 So. 2d 808, 810 (Ala.1978), we cannot conclude in this case that there is no reasonable relationship between the purpose of the statute and the size of the municipality. See also Couch v. Rodgers, 253 Ala. 533, 45 So. 2d 699 (1950). We find that Act No. 84-408 is so framed as to be reasonably susceptible of interpretation as a general law and, therefore, we are bound not to construe it as a local law. See Crosslin v. City of Muscle Shoals, 436 So. 2d 862, 863 (Ala. 1983).
Finally, plaintiffs argue that the provision of Act No. 84-408 allowing municipalities with a population of 4,000 or more located in a dry county to hold a referendum when a municipality with a population of 7,000 or more in the same county votes to allow the sale of alcoholic beverages is contradictory to the expression of legislative intent that municipalities with a population under 7,000 could not provide adequate protection of the public welfare. We decline to address this argument since, under the facts of this case heretofore explained, the provision of the statute involving municipalities of 4,000 people is not at issue.
The questions presented by this case were issues of law to be decided by the court. Let the summary judgment in favor of the defendants be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and HOUSTON, JJ., concur.
[1] Act No. 84-408 was introduced as Senate Bill 76 and is now codified at Code of 1975, §§ 28-2A-1, -2, -3, and -4, and 28-4-5. | November 1, 1985 |
0fa8e442-ed83-4de3-afd3-90b3269a54cd | Ala. State Florists Ass'n v. LEE CTY. HOSP. BD. | 479 So. 2d 720 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 720 (1985)
ALABAMA STATE FLORISTS ASSOCIATION, INC., Opelika Floral Company, and Auburn Flower Shop, Inc.
v.
LEE COUNTY HOSPITAL BOARD, a Corporation, et al.
84-318.
Supreme Court of Alabama.
November 1, 1985.
*721 J. Michael Williams, Sr., Auburn, for appellants.
Stanley A. Martin of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellees.
Sydney Lavender and Anne P. Wheeler of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for amicus curiae Alabama Hosp. Ass'n.
HOUSTON, Justice.
This case was submitted to the trial court on pleadings, affidavits, and briefs, without an evidentiary hearing. From a judgment for the defendants, plaintiffs appeal.
Defendant Lee County Hospital Board (Hospital Board) is a public corporation which was duly incorporated under the provisions of Act No. 46, enacted during the 1949 Regular Session of the Legislature of Alabama. The 1949 Act was amended in 1978 (1978 Alabama Acts No. 468). These *722 acts are now codified in § 22-21-70, et seq., Code 1975.[1]
At its meeting on August 25, 1980, the Board of Directors of Lee County Hospital Board, who are also defendants, (Directors) adopted the following resolution:
A floral and gift shop was opened at Lee County Hospital on October 1, 1980.
The plaintiffs are Alabama State Florists Association, Inc., a nonprofit incorporated association of retail florists, and Opelika Floral Company and Auburn Flower Company, Inc., which are licensed businesses in Lee County, Alabama, and competitors of the hospital gift shop.
Defendants challenge the plaintiffs' standing to raise the claim of ultra vires because the plaintiffs are strangers to the corporation, holding no interest therein and having no contractual relationship with the Hospital Board.
Alabama has codified the ultra vires doctrine in regard to business corporations at § 10-2A-24 and as to nonprofit corporations at § 10-3A-21, Code 1975. These provisions limit the ultra vires claim to actions brought by a member or director of the corporation, stockholders, parties contracting with the corporation, the corporation itself acting through a legal representative, or the Attorney General. There is no comparable provision in the title of the Code under which the Hospital Board was incorporated or reincorporated.
As a rule, "a competitor cannot attack acts of a corporation as ultra vires, merely on the ground of injurious competition ... where such acts are neither public nuisances nor trespasses." 7A W. Fletcher, Cyclopedia of the Law of Private Corporations § 3451 (1978); Mound City Warehouse v. Illinois Central R. Co. 51 Ill. App.2d 103, 200 N.E.2d 919 (1964); Church of God of the Union Assembly, Inc. v. Carmical, 214 Ga. 365, 104 S.E.2d 912 (1958); SDK Medical Computer Services Corp. v. Professional Operating Management Group, Inc., 371 Mass. 117, 354 N.E.2d 852 (1976).
This Court is persuaded that plaintiffs would not have standing to challenge ultra vires acts of the Hospital Board, if plaintiffs were merely competitors.
However, this Court is of the opinion that as taxpayers the plaintiffs have standing to challenge the allegedly ultra vires acts of the Hospital Board. A taxpayer has standing to maintain a suit to prevent a misappropriation of county funds. Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938); Court of County Revenues for Lawrence County v. Richardson, 252 Ala. 403, 41 So. 2d 749 (1949); Zeigler v. Baker, 344 So. 2d 761 (Ala.1977). The evidence is undisputed that two of the plaintiffs, Opelika Floral and Auburn Flower, pay ad valorem taxes to the county. A portion of these taxes is earmarked for the Hospital Board. Therefore, the plaintiffs have standing to challenge the expenditure of public funds by the Board.
The plaintiffs contend that the expenditures made by the Hospital Board are not lawful expenditures because they are beyond the powers conferred upon the Hospital Board by corporate charter and by law. The Court must determine if the acts of the *723 Hospital Board and Directors were ultra vires.
As a corporation reincorporated pursuant to Act No. 82-418 (1982 Acts of Alabama), now codified at § 22-21-310 et seq., Code 1975, the Hospital Board clearly has the express power to operate the gift shop. Section 9(5) of that Act, as codified, authorizes the Hospital Board
§ 22-21-318(a)(5), Code 1975.
Section 2(a)(13) of the Act, as codified, defines "Health Care Facilities" as including, inter alia,
§ 22-21-311(a)(13), Code 1975.
While at the time the Hospital Board opened the floral and gift shop, the statute under which the Hospital Board was originally incorporated, as amended, lacked the explicit definitional language of Act No. 82-418, the statute did at that time clearly authorize the Hospital Board to do any and all acts which were "necessary and incidental" to the operation, maintenance, and improvement of the hospital. § 22-21-77, Code 1975. Plaintiffs' ultra vires argument, even under the prior enabling statute, thus would require a finding that the operation of the gift shop was not incidental or necessary to the Hospital Board's purpose of providing quality hospital care and services. Such an assertion is not only contrary to the reality of the modern medical center, but is also inconsistent with the limited law found on point.
While no Alabama cases appear to have been decided exactly on this point, this issue has been addressed in the context of the Federal Tax Code Provisions for tax exempt organizations. Section 511 of the Internal Revenue Code, 26 U.S.C. § 511, provides for taxation of certain income received by otherwise exempt organizations to the extent that it is derived from an unrelated business or trade conducted by the organization. 26 U.S.C. § 511(a)(1). The test for determining whether income stems from an unrelated trade or business is whether the conduct of such trade or business "is not substantially related (aside from the need of such organization for income of funds or the use it makes of the profits derived) to the exercise or performance by such organization of its charitable, educational or other purpose or function constituting the basis for its exemption." 26 U.S.C. § 513(a). (Emphasis added.)
This section has been interpreted specifically to mean that the operation of a hospital gift shop which sells flowers and other items to patients, employees, and visitors is substantially related to the exempt purposes of the hospital. Rev.Rulings 69-267, 1969-1 C.B. 160. In that ruling the Internal Revenue Service reasoned as follows:
One of the purposes of the hospital is to provide health care for members of the community. By providing a facility for the purchase of merchandise and services to improve the physical comfort and mental well being of its patients, the hospital is carrying on an activity that encourages their recovery and therefore contributes importantly to its exempt purposes. Furthermore, *724 since it is to the hospital's advantage to keep its employees and medical staff on its premises throughout their working days, the sale of reading materials, candy, and other personal effects by the gift shop to hospital personnel increases the hospital's efficiency and contributes importantly to its exempt purpose. Accordingly, it is held that this activity is substantially related to the purposes constituting the basis for the hospital's exemption and does not constitute unrelated trade or business under § 513 of the Code.
The reasoning applied in the revenue ruling is reflected in several court decisions in other jurisdictions involving facts analogous to those in this appeal. In 1948 the Supreme Court of Georgia held that a state university was empowered to operate a laundry and dry cleaning service for use by both the university and the surrounding community, and that such an operation did not compete unfairly with private cleaners in the area. Villyard v. Regents of University System of Georgia, 204 Ga. 517, 50 S.E.2d 313 (1948). In that case, local dry cleaners sought to enjoin the university from providing dry cleaning and laundry services to the university community at rates lower than those offered by the plaintiffs. Plaintiffs argued that the university service was ultra vires and violative of state constitutional provisions similar to Section 35 of the Alabama Constitution, and that it constituted unfair competition. The Supreme Court of Georgia, applying the "reasonably related" test, concluded that the service was constitutional and within the lawful powers of the university. Having so concluded, the Court further disposed of the claim of unfair competition by holding that "if the operation of the laundry and dry cleaning service, at a price less than the commercial rate for the benefit of those connected with the school is lawful (because `reasonably related to the education, welfare, and health of the student bodies,') it matters not that such enterprise is competitive with the plaintiffs' business." 204 Ga. at 521, 50 S.E.2d at 316. In reaching its conclusion the Villyard Court referred to a number of cases from other states in which the following types of public university activities met the test of reasonable relationship: "cafeterias operated primarily for students but which also serve faculty, parents and visitors; rental of school property for artistic or community uses in competition with private businesses; operation of a book store, selling books and supplies on a cost basis; operation of a university press for work produced outside of the university community; maintenance of a recreation center; and operation of a university infirmary." Id., 204 Ga. at 521, 505 S.E.2d at 316.
While the services offered varied in the cases cited in Villyard, the facts are clearly analogous to those in the case at issue, in which the hospital runs a gift shop primarily for the benefit of its patients and employees, rather than strictly as a revenue producing operation. See Churchill v. Board of Trustees of University of Alabama in Birmingham, 409 So. 2d 1382 (Ala.1982) (this Court held that a state university can sell hearing aids to patients in a university clinic). Thus, under both statute and case law the Hospital Board's operation was lawful and is not vulnerable to the ultra vires claims asserted by plaintiffs.
The operation of the floral and gift shop is also fully consistent with the constitutional mandate cited by the plaintiffs. Plaintiffs base their constitutional challenge on Section 35 of the Alabama Constitution of 1901, which provides:
Section 35 deals expressly with actions undertaken by government. This Court has held that public hospital corporations and public hospital associations are not political subdivisions of the State of Alabama and thus, otherwise lawful expenditures by such public corporations or associations are not proscribed by the Constitution of Alabama. *725 Alabama Hospital Association v. Dillard, 388 So. 2d 903 (Ala.1980).
The Hospital Board was originally incorporated pursuant to Code 1975, § 22-21-70. In Dillard, the Supreme Court of Alabama held that a public corporation organized under that section "is a separate entity from the state and from any local political subdivision, including a city or county in which it is organized." Id., at 905. This would be so even though the Directors of the Hospital Board are appointed by the governing body of Lee County, Alabama, Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So. 2d 903 (1971), and public funds are allocated to the Hospital Board, Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So. 2d 115 (1966). The single issue that the plaintiffs argued in their brief was "[D]id the trial court err in determining that the defendants were lawful in the operation of a retail floral and gift shop." It did not.
The other issues raised by the plaintiffs were not argued; therefore, we pretermit any discussion of those.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON, and BEATTY, JJ., concur.
[1] On October 1, 1982, the certificate of reincorporation of the East Alabama Health Care Authority was filed in the Office of the Judge of Probate of Lee County, Alabama. The reincorporation was pursuant to the provisions of "The Health Care Authorities Act of 1982," being Act No. 82-418, enacted at the 1982 Regular Session of the Legislature of Alabama. | November 1, 1985 |
edb1f8bf-b85d-4a20-96d1-2739a287b0b8 | Prosser v. Glass | 481 So. 2d 365 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 365 (1985)
Dennis PROSSER
v.
Eddie GLASS, d/b/a Ray Glass Batteries; Gulf States Fuel Engineering, Inc.; and Dallas Fuel Laboratories, Inc.
84-753.
Supreme Court of Alabama.
November 8, 1985.
Rehearing Denied December 20, 1985.
*366 L. Andrew Hollis, Jr. and R. Bradford Wash of Hardin & Hollis, Birmingham, for appellant.
Connie Ray Stockham of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee Eddie Glass, etc.
Bibb Allen and James B. Carlson of London, Yancey, Clark & Allen, Birmingham, for appellees Gulf States Fuel Engineering, Inc. and Dallas Fuel Laboratories, Inc.
SHORES, Justice.
This is an appeal from a summary judgment awarded to defendants in a personal injury action. We affirm the trial court's judgment.
The material facts of the case are undisputed. Dennis Prosser and Glen Hogland of Gas Vaporizers, Inc. (incorporated in Ohio), entered into a contract with Jim Myers and James Gressinger of Gulf States Fuel Engineering, Inc. (Gulf States). According to the contract, Prosser and Hogland would develop a fuel-saving device for automobilescalled a "swirlplate" and Gulf States would fund its development and receive manufacturing and marketing rights in the product. As part of the agreement, Gulf States set up a shop in Dothan, Alabama, for Prosser and Hogland to experiment with the device. Gulf States provided Prosser and Hogland with advance royalties of $1,000 per week. Myers also hired two mechanics, Michael Van Pelt and Terry Davis, to assist Prosser, and their job was to tune the test cars to ensure the accuracy of measurements and to adapt the swirlplate to the cars' fuel systems. Gulf States placed Van Pelt and Davis on its payroll and withheld contributions for workmen's compensation and Social Security from their paychecks. Van Pelt and Davis, however, worked under the daily direction of Prosser.
At the time of the accident in which Prosser was injured, Prosser and Van Pelt noticed Eddie Glass experiencing truck engine problems near their shop. Glass, the sole proprietor of a neighboring business known as Ray Glass Batteries, had assisted Prosser previously by using his forklift to move some heavy equipment. Prosser had also installed a swirlplate in another of Glass's trucks. Prosser volunteered to examine the malfunctioning truck, and the truck was driven to Prosser's shop. Van Pelt found and replaced a blown gasket. He then started the engine, to ensure that the carburetor was functioning properly. According to Van Pelt, shifting the transmission into neutral was difficult, and the only way to determine if it indeed was in *367 neutral was to let out the clutch. However, there was no evidence that Glass had any knowledge of any alleged defect or dangerous condition connected with the truck. There is conflicting evidence on whether the clutch and brake pedals were missing their rubber pads, leaving the steel surfaces exposed.
Prosser stood in front of the truck, spraying cleaner onto the carburetor, while Van Pelt raced the engine to prevent it from choking. Van Pelt thought that he had the truck in neutral, but kept the clutch pedal depressed anyway. However, his foot slipped off the clutch pedal, and the truck raced forward, crushing Prosser against a wall fifteen to twenty feet away. Myers subsequently fired Van Pelt from the aborted project.
Prosser filed his personal injury suit in the Circuit Court of Jefferson County, naming Gulf States, Eddie Glass, and Dallas Fuel Laboratories, Inc. (Dallas Fuel),[1] as defendants. Prosser's claim against Gulf States and Dallas Fuel was that their employee, Van Pelt, negligently and/or wantonly operated the truck, injuring Prosser. His claim against Glass was that Glass's truck was in a defective condition when it left Glass's possession and that Glass failed to warn Prosser of the dangers associated with the truck. After discovery by deposition was completed, the defendants moved for summary judgment. The trial court heard arguments and granted their motions. Prosser then appealed to this Court.
On appeal, Prosser questions whether the trial court properly granted summary judgment on the following issues:
The second and third issues are dispositive in favor of the appellees. Before addressing these issues, we briefly review the correct standards for granting summary judgment.
According to Rule 56(c), A.R.Civ.P., summary judgment will be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In Coggin v. Starke Brothers Realty Co., 391 So. 2d 111 (Ala.1980), the Court stated:
391 So. 2d at 112 (emphasis in original). Summary judgment is rarely appropriate in a negligence claim. 391 So. 2d at 113.
Before we apply these summary judgment standards, it is appropriate to review the applicable substantive law. In AVCO Corp. v. Richardson, 285 Ala. 538, 234 So. 2d 556 (1970), this Court stated the rule for imposing liability on the master for the servant's acts:
285 Ala. at 541, 234 So. 2d at 559. Where the servant abandons his or her master's business, but the deviation is slight and not unusual, the court may, as a matter of law, determine that the servant was still executing the master's business. 285 Ala. at 542, 234 So. 2d at 559-60. However, where the deviation is very marked and unusual, the court may determine that the servant was outside the scope of employment. 285 Ala. at 542, 234 So. 2d at 560. Cases between the two extremes involve a question of fact left to the trier of fact. Id.
Applying these principles to the facts of the present case, we do not find a scintilla of evidence supporting the position that Van Pelt, assuming he was an employee of Gulf States and/or Dallas Fuel, was acting within the scope of his employment at the time of the accident. Van Pelt was employed as a mechanic to assist in the experimentation and development of the swirlplate. To perform this function, his duties consisted primarily of tuning the test cars and adapting the device to the cars' fuel systems. However, his repair of Glass's truck, which did not have a swirlplate, would not reasonably further the purpose of developing the fuel-saving device, which was the business at hand. Therefore, Van Pelt's deviation from the scope of his master's business was marked and unusual, and thus outside the scope of employment. The summary judgment for Gulf States and Dallas Fuel is affirmed.
The issue in regard to Glass is whether he was negligent in failing to keep his truck in a safe operating condition and in failing to warn of any hazards associated with his truck. The operator of a motor vehicle on public highways has the duty to see that the automobile is in reasonably good condition so as not to present a source of danger to others. To fulfill such a duty, the operator must exercise reasonable care in inspection and operation. Al DeMent Chevrolet Co. v. Wilson, 252 Ala. 662, 42 So. 2d 585 (1949); Employer's Casualty Co. v. Baxter Fertilizer Co., 338 So. 2d 418 (Ala.Civ.App.1976). In regard to the duty to warn, this Court first recognized in Cloud v. Moon, 290 Ala. 33, 273 So. 2d 196 (1973), the rule that the owner of an automobile owes a duty to the person making repairs to disclose any defect in the mechanism of which the owner has knowledge and which may render it unsafe or dangerous. 290 Ala. at 39, 273 So. 2d at 201. This Court, however, further stated that the owner does not owe the duty to employ the skill of an expert mechanic to make an examination to discover defects before delivering the automobile for repairs. Id. This is the rule in many jurisdictions; see cases cited at 14 Blashfield, Automobile Law and Practice § 476.41, at 460, nn. 2 and 3 (3d ed. 1969), and 1985 pocket part.
Applying these principles to the facts, we do not find a scintilla of evidence showing that Glass was negligent in either maintaining an unsafe vehicle or in not warning of alleged dangers associated with the truck. There was no evidence that Glass failed to exercise reasonable care in inspection and operation of his truck. In regard to the duty to warn, Glass would be negligent only if he failed to disclose a defect of which he had knowledge and which rendered the truck unsafe, but there was no evidence that Glass was aware of any hazard connected with his truck. Therefore, the summary judgment for Glass is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur.
[1] It is unclear from the record and briefs exactly what role Dallas Fuel played in this incident. | November 8, 1985 |
38d3d91a-6fb6-48cd-9ba2-37812f88a027 | Bownes v. Winston County | 481 So. 2d 362 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 362 (1985)
Eugene A. BOWNES
v.
WINSTON COUNTY, a Political Subdivision of the State of Alabama.
No. 84-695.
Supreme Court of Alabama.
November 8, 1985.
Finis E. St. John of St. John & St. John, Cullman, for appellant.
Hobson Manasco, Jr., Haleyville, for appellee.
HOUSTON, Justice.
From a judgment declaring that Winston County Road 12-B is a public road and ordering Dr. Eugene A. Bownes to remove any and all obstructions from that road, Dr. Bownes appeals. We reverse and remand.
On February 28, 1964, a quitclaim deed was given to Leonard Farley (Dr. Bownes's predecessor in title) to "All that part of the old right of way of Arley-Trade Road across the SW of the SW in Section 26, Township 11, Range 6. Said road has now been abandoned and this conveyance is for the purpose of conveying said right of way back to the adjoining landowner."
The grantor in the deed was the "The Board of Revenue of Winston County." *363 The deed was signed by the chairman (Malcolm Clyde Teas) and two members (Erbie E. Stephens and Claude F. Watts) of the Winston County Board of Revenue. Under the signatures was typed "The Winston County Board of Revenue, Governing Body of Winston Co."
The pertinent part of the acknowledgment was: "that Clyde Teas, Chairman, Erbie Stephens and Claude Watts, members, whose names are signed to the foregoing conveyance and who are known to me acknowledged before me on this day that being informed of the contents of the conveyance they executed the same voluntarily on the day the same bears date."
The deed was filed for record and recorded in the Probate Office of Winston County on February 28, 1964.
On March 30, 1982, this suit was filed by "Winston County, a political subdivision of the State of Alabama," alleging in essence that the right-of-way described in the foregoing deed had not been abandoned and had continuously been used as a public road and seeking an injunction to keep Dr. Bownes from placing an obstruction in the form of a gate across this road.
Farley had conveyed to Dr. Bownes and his wife that portion of the SW ¼ of the SW ¼, Section 26, Township 11, Range 6, west of the 510-foot elevation contour line of Lewis Smith Lake by a warranty deed in 1971. The above described right-of-way was not excepted from this conveyance, nor was the conveyance made subject to such right-of-way. In 1975, Farley executed a quitclaim deed to Dr. Bownes and his wife to the exact property which had been quitclaimed to Farley by the quitclaim deed hereinbefore described.
At the time the 1964 quitclaim deed was executed by the Chairman and members of the Board of Revenue of Winston County, Act No. 326, Acts of Alabama 1959, was the local act governing the authority of the Board of Revenue of that county. The pertinent part of this Act provided: "The Board of Revenue shall have and exercise all of the jurisdiction, power, and authority which are now or may hereafter be invested in the Courts of County Commissioners, Boards of Revenue, and other like County Governing Bodies in Alabama." This was subject to certain limitations insofar as construction, maintenance, and repair of roads, bridges, and ferries were concerned.
"The ancient maxim, `once a highway, always a highway,' which has frequently been quoted by the Courts, is subject to the qualification that a highway, once established, continues until it ceases to be such by the action of the general public in no longer traveling upon it, or by action of the public authorities in formally closing it. Accordingly, a highway once in existence is presumed to continue until it ceases to be such, owing to abandonment or some other lawful cause." 39 Am.Jur.2d Highways, Streets and Bridges, § 139 at 512-13 (1968).
In Alabama, public streets, alleys, or highways can be closed and vacated by counties or municipalities in accordance with §§ 23-4-1 through 23-4-6, Code 1975, or by "abutting landowners" in accordance with § 23-4-20, Code 1975. These sections have been expanded by § 11-49-6, Code 1975, (1985 Cum.Supp.) which authorizes the governing body of the governmental entity in which the public way is located to require the landowner who will benefit by the vacation of such public way to pay the fair market value of the land which will be added to the holdings of such landowner.
There is a common law prohibition against the vacation of public ways. Booth v. Montrose Cemetery Association, 387 So. 2d 774 (Ala.1980). Therefore, the vacation statutes are in derogation of the common law prohibition against the vacation of public ways and must be strictly construed. Gwin v. Bristol Steel & Iron Works, Inc., 366 So. 2d 692 (Ala.1978).
Section 11-14-2, Code 1975, does not give to the county commission an additional method of vacating streets, alleys, or highways. Smith v. Duke, 257 Ala. 86, 57 So. 2d 550 (1952). It provides only that the county commission may "direct the disposal of any real property which can be lawfully *364 disposed of." Streets, alleys, and highways cannot be lawfully disposed of unless they are closed or vacated in accordance with the vacation statutes previously cited.
A public way or easement of passage which the public has in respect to a highway may be abandoned and thus lose its public character in one of two ways. Non-use for a period of 20 years will operate as a discontinuance of a public road. Likewise, there can be an abandonment by non-use for a period short of the time of prescription when there has been the construction of a new highway replacing an old road. Floyd v. Industrial Development Board of Dothan, 442 So. 2d 927 (Ala.1983).
This case was submitted to the trial court without an evidentiary hearing, but on trial briefs which contain some facts which were agreed to by the parties and some facts which were in dispute. Where the evidence is stipulated, and no testimony is presented orally before the trial court, this Court will review without any presumption in favor of the trial court's findings and sit in judgment on the evidence. Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975); Sheehan v. Liberty Mutual Fire Insurance Co., 288 Ala. 137, 258 So. 2d 719 (1972).
The 1964 quitclaim deed from the Board of Revenue of Winston County to Leonard Farley, which was submitted by Dr. Bownes, established that the Arley-Trade Road (Winston County Road 12-B) was, at one time, a public road. Although he introduced no evidence tending to show that the County Commission complied with the statutory method of vacation, the 1964 deed did contain an acknowledgment by the Board of Revenue that "Said road has now been abandoned." The County merely argued in its trial brief, without supporting evidence, that the road in question had not been abandoned. Therefore, we hold that the evidence which was stipulated to by the parties (i.e., the quitclaim deeds from the Board of Revenue of Winston County to Leonard Farley and from Farley to Dr. Bownes) fails to support the material allegations upon which the suit is based.
The judgment of the trial court is reversed and the cause remanded.
REVERSED AND REMANDED.
FAULKNER, JONES, SHORES and BEATTY, JJ., concur.
TORBERT, C.J., and MADDOX and ALMON, JJ., dissent.
TORBERT, Chief Justice (dissenting).
Winston County brought suit to enjoin Bownes from obstructing what was conceded to have been a public road. This is not a declaratory judgment action to determine if in fact the road in question was a public road. Bownes contends that while the road may have been public at one time it is no longer a public road. It is clear that the statutory prerequisites for vacation of a public way have not been met. The only question is whether the public way has lost its public character because of abandonment.
In Floyd v. Industrial Development Bd. of Dothan, 442 So. 2d 927 (Ala.1983), and Purvis v. Busey, 260 Ala. 373, 71 So. 2d 18 (1954), the Court was confronted with factually similar cases. In each case a public road was alleged to have been obstructed. Suit was filed to enjoin the obstructer from continuing to obstruct it. The obstructer's defense was abandonment. The Court held that the obstructer has the burden of showing abandonment by clear and convincing evidence. See also, Ayers v. Stidham 260 Ala. 390, 71 So. 2d 95 (1954). That holding is consistent with the general rule that once it is shown that a road is a public highway, "the burden of showing abandonment... is upon the party who asserts that the public ... [has] lost or surrendered their rights." 2 B. Elliott & W. Elliott, The Law of Roads and Streets, § 1173 (4th ed. 1926).
The only competent evidence on the issue of abandonment was the statement in the deed from the Board of Revenue of Winston County to Bownes's predecessor in title that the "road has now been abandoned." *365 The County argued in its brief that in fact there had been no abandonment, but there is nothing in the record to disclose that the County actually presented any evidence on that issue. The question, simply put, then is this: Is the statement in the deed that the road is abandoned, standing alone, clear and convincing evidence of abandonment? I think not.
The statement that the road was abandoned is conclusory. There are no facts given to support that conclusion. A reading of the cases in this area convinces me that much more is necessary to establish that a public highway has been abandoned. Neither the fact that part of a public highway is unusable for travel, nor the fact that the county failed to keep the highway in repair, nor the fact that it forms a cul-de-sac is sufficient to show that it has been abandoned. Purvis, 260 Ala. at 378, 71 So. 2d at 22, citing cases. Even the combination of facts that the road was seldom used, was in a bad state of repair, and was not maintained by public authorities was not enough to show abandonment. Ayers, supra. A casual observer of the roads involved in these cases may well conclude that the roads were abandoned, but the law requires a much stronger showing of facts in order to establish abandonment. The purpose of placing such a heavy burden on the person attempting to prove abandonment is to protect the public. "It is to be remembered, too, that the rights of the public are seldom guarded with the vigilant care with which owners of private property guard their own rights, and acts or omissions which might weigh heavily against individual owners cannot always be assigned much force against the public." Elliott & Elliott, supra, at § 1175.
I do not believe that the statement in the deed is sufficient to clearly and convincingly prove that the road was abandoned. Therefore, the judgment of the trial court should be affirmed.
MADDOX and ALMON, JJ., concur. | November 8, 1985 |
6c97d7a8-503a-4646-9c79-7be9a75f17fd | Dixon v. Economy Co. | 477 So. 2d 353 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 353 (1985)
Mike DIXON
v.
The ECONOMY COMPANY, a corporation.
84-248.
Supreme Court of Alabama.
September 27, 1985.
Robert Loye Buck of Chenault, Hammond & Buck, Decatur, for appellant.
J. Glynn Tubb of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.
ALMON, Justice.
This is an action for libel. The trial court granted summary judgment for the defendant. Plaintiff argues that there was a publication of the allegedly libelous letter, to the author's secretary and to the plaintiff's wife; further, that the statement was made with malice and so was not privileged.
Mike Dixon was employed by The Economy Company, from 1980 until 1982, as a promoter of the company's school textbooks. On April 21, 1982, Jim Harrell, Dixon's district sales manager, terminated Dixon's employment. Dixon requested a letter for the Department of Industrial Relations so that he might receive unemployment benefits. On April 26, Dave Watt, the company's southern division manager, wrote a letter to Dixon which included the following:
Dixon contends that the true reason for his discharge was a reduction in force due to declining company business, and that this letter was written to prevent the company's unemployment compensation contribution rate from rising. See Code 1975, §§ 25-4-54 and -78.
Section 25-4-116 provides that the Department of Industrial Relations shall keep such information confidential and that no letters from employers to the department written "in connection with the requirements and administration of this chapter shall ... be made the subject matter or basis for any civil action for slander or libel in any court." See Cole v. Cooper, 437 So. 2d 1257 (Ala.1983). Dixon's complaint included claims for publication to the Alabama Department of Industrial Relations and to the Oklahoma Employment Security Commission, but he does not raise these alleged publications as grounds for holding the trial court in error.
The letter reflects on its face that Watt sent it to two other company personnel, Russ Pyle, who is not identified, and Jim Harrell, the district sales manager who actually informed Dixon of his termination. Communications among the managerial personnel of a corporation about the company's business do not constitute a publication, under the rule of McDaniel v. Crescent Motors, Inc., 249 Ala. 330, 31 So. 2d 343 (1947).
Dixon does not now argue publication to these persons, but does argue that Watt's act of dictating the letter to a stenographer was a publication of the defamation, citing Ferdon v. Dickens, 161 Ala. 181, 49 So. 888 (1909); and Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290 (1923). He acknowledges that the rule of these cases was strictly limited in McDaniel, supra, but does not cite Burney v. Southern Railway Co., 276 Ala. 637,165 So. 2d 726 (1964), which provides the rule to be applied in this case. The Court in Burney held that
Id., 276 Ala. at 642, 165 So. 2d at 730-31.
Dixon's argument does refer to "publication to a secretary of slanderous statements concerning one outside the defendant organization," and mentions that he had been terminated on April 21, five days prior to the date of the letter. The fact that he was no longer an employee is not significant, however, because the letter was directly related to his discharge, followed closely after his oral notification of discharge, and concerned matters allegedly occurring during and in the course of his employment. Under the law as set out in the cases cited, dictation by Watt to a secretary employed by The Economy Company was not publication of a defamation by that company.
When the letter arrived at Dixon's home, his wife opened and read it. Dixon's sales territory had been a considerable distance from his home, and he says that his employers had suggested that his wife open his mail and telephone him about it when he was away in the field. He cites Roberts v. English Manufacturing Co., 155 Ala. 414, 46 So. 752 (1908), which held that there was no publication where the plaintiff's wife opened a letter addressed to the plaintiff, absent a showing that the person who sent the letter knew that some other person was in the habit of opening the plaintiff's mail. Dixon argues that he has distinguished this holding by his evidence that those at The Economy Company knew his wife was in the habit of opening his mail.
As The Economy Company points out, however, this argument for publication must fail for either of two reasons. Either the company's expectation that Dixon's *355 wife would open his mail could reasonably have ceased when Dixon was fired, or, if the expectation is deemed to have continued, the same facts show that Dixon's wife was acting as his agent when she opened his mail. In McDaniel, supra, the Court held that "if the words were spoken only to the complaining party or to his agent, representing him in the matter discussed and invited by him, it is not such a publication as will support an action for slander." 249 Ala. at 332, 31 So. 2d at 344. Therefore, The Economy Company either had no reason to expect that Mrs. Dixon would open her husband's mail or, if it did expect her to, knew she would be acting as his agent in the very matter which was the subject of the letter, Mr. Dixon's employment with the company.
"If there is no publication, there is no defamation." Willis v. Demopolis Nursing Home, 336 So. 2d 1117, 1118, 1120 (Ala. 1976). Dixon makes no argument that he could prove any publication other than those set forth above. We pretermit discussion of Dixon's argument as to privilege because, as the cases cited establish, if there is no publication, the question of privilege is not reached. Therefore, Dixon has presented nothing to put the trial court in error for granting summary judgment.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | September 27, 1985 |
c087f9ec-cf59-4a83-a6fa-171e09c06682 | Ex Parte Leo | 480 So. 2d 572 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 572 (1985)
Ex parte: Mary LEO, d/b/a The Leo Agency.
(Re: MARY LEO, INC.; Mary Leo, d/b/a Leo Agency, a sole proprietorship, et al. v. Charles D. NEILL).
No. 83-1372.
Supreme Court of Alabama.
September 13, 1985.
*573 Gary V. Conchin of Higgs & Conchin, Huntsville, for petitioner.
William K. Bell of Lammons, Bell & Sneed, Huntsville, for respondent.
ADAMS, Justice.
This is a case involving the fraudulent sale of a house. Defendant, Mary Leo, petitioned this Court for a writ of certiorari following the Court of Civil Appeals' affirmance, 480 So. 2d 570, of the trial court's denial of her motion for summary judgment, directed verdict, and post trial motions in favor of plaintiff-appellee, Charles Neill. The trial court had entered a $7,500.00 judgment based upon a jury verdict for plaintiff Charles Neill.
Leo contends that the Court of Civil Appeals erred by affirming the trial court's denial of her summary judgment and directed verdict motions. We agree, and reverse.
Charles Neill purchased a used house in Huntsville, Alabama, on April 12, 1979, for $61,000.00. Mary Leo, d/b/a the Leo Agency, was the real estate listing broker for the house Neill purchased. Stan Erwin, a real estate salesperson and friend of Neill, showed the house to Neill.
In July 1984, after living in the house for over three and one-half years, Neill discovered that the house contained 1,976 square feet of living area and 332 square feet of garage area. Soon after Neill's discovery, he filed suit against Leo, charging that Leo had fraudulently misrepresented the square footage of the house he purchased. Neill's allegations are based upon a notation printed in a multiple listing service booklet shown to him by Erwin, which listed the square footage of the house as 2,300 square feet of living space and 390 square feet of garage area. Leo prepared the listing that was published, including the square footage notation, based upon calculations and measurements made by her husband. Leo moved for summary judgment. This motion was denied, as were Leo's subsequent motions for directed verdict, JNOV, and new trial.
Leo argues that Neill failed to present sufficient evidence to support an action against her for fraudulent misrepresentation of the square footage of the house Neill purchased. A careful, extensive examination of the record leads us to the same conclusion.
At the outset, we note that:
Armstrong v. Life Ins. Co. of Virginia, 454 So. 2d 1377, 1379 (Ala.1984).
Neill's complaint is grounded upon Code 1975, § 6-5-101, which defines legal fraud:
As we noted in Roney v. Ray, 436 So. 2d 875, 877 (Ala.1983):
We think that Neill's action fails because of the complete lack of credible evidence of the third element of this tort, namely, reliance.
Speaking to the element of reliance, this Court, in Marshall v. Crocker, 387 So. 2d 176, 178, (Ala.1980), quoting Jordan & Sons v. Pickett, 78 Ala. 331 (1884), opined:
78 Ala. at 338.
Although Neill testified that the square footage of the house he purchased was important to him and that he relied upon the square footage notation in the multiple listing booklet, we find that this evidence is conclusively negated by Neill's own actions and words, as well as other evidence found in the record.
The record discloses that prior to signing the sales contract, Neill inspected the house on four or five occasions. He visited the house another four or five times prior to closing and was given a key which gave him unlimited access to the house.
In addition to making thorough inspections of the house, Neill actually measured several of the rooms. He measured the master bedroom because, he said, "the master bedroom didn't look as large as what it indicated in the book." Erwin accompanied Neill on his visits to the house and assisted Neill with the measurements.
Erwin testified that the two men measured the master bedroom and the garage and that they talked about the garage size in relation to total square footage. Furthermore, Erwin stated that he offered to check on the square footage with Leo and told Neill to satisfy himself as to the suitability of the house, including square footage. Erwin testified that Neill responded "No, I like the house. Let's go on with it."
Neill's own testimony negates any finding of reliance upon the listed square footage:
We think that this evidence compels no other finding but that Neill did not rely upon the figures in the multiple listing booklet, but, rather, relied upon his own *576 meticulous inspection of the property to satisfy any reservations he may have entertained. There is no evidence that had Neill known of the area discrepancy prior to the purchase that he would not have consummated the deal, but the evidence does establish that his purchase was motivated by a multitude of other factors.
Even if reliance by Neill could be supported by the record before us, such reliance would not be justified under these facts.
Cook v. Brown, 393 So. 2d 1016, 1019 (Ala. Civ.App.1981). Moreover, in Marshall, supra, we reiterated:
387 So. 2d at 179, quoting Jordan & Sons v. Pickett, supra. Although the fraud in Marshall was that of concealment of a material fact, we find the principle espoused therein equally applicable to the fraudulent misrepresentation alleged in the present case. Following this same premise, the court in Marshall v. Keaveny, 38 N.C.App. 644, 650, 248 S.E.2d 750, 754 (1978), a case factually close in point to the instant case, held:
Neill was given every opportunity to inspect and measure the house. His access was unlimited. He inspected the house on numerous occasions and measured at least a portion of the house because he was suspicious about the square footage listing. In addition, Neill was learned in real estate transactions, having previously purchased residential rental property. We think these facts, considered with those previously set out, preclude a case of actionable fraud.
For all of the foregoing reasons, we reverse the judgment of the Court of Civil Appeals and remand the cause to that court.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON and BEATTY, JJ., concur.
TORBERT, C.J., recused.
SHORES and EMBRY, JJ., not sitting. | September 13, 1985 |
20e098fe-a462-4161-b8a3-8ea37cef6c49 | State v. Abbott | 476 So. 2d 1224 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 1224 (1985)
STATE of Alabama
v.
L.R. ABBOTT and C.R. Abbott.
No. 83-1435.
Supreme Court of Alabama.
September 13, 1985.
Jack F. Norton, Chief Counsel, Alabama Highway Dept., and G. William Noble of Barnett, Tingle, Noble & Sexton, Sp. Asst. Atty. Gen., Birmingham, and Patrick Tate, Sp. Asst. Atty. Gen., Fort Payne, for appellant.
W.N. Watson of Watson & Watson, Fort Payne, for appellees.
James O. Spencer, Jr. and James A. Bradford of Balch & Bingham, Birmingham, for amicus curiae Alabama Power Co.
MADDOX, Justice.
The original opinion filed in this cause June 21, 1985, is hereby withdrawn, and the following opinion is substituted in lieu thereof:
This case presents the question of whether the State, by failing to record a condemnation order dated December 21, 1939, can be divested of its title to a highway rightof-way under § 6887, Code of 1923 (now, Code 1975, § 35-4-90). We think that it can. Accordingly, the judgment of the trial court is affirmed.
Briefly stated, the facts of this case are as follows:
In 1932, the State of Alabama acquired a 66-foot right-of-way along what is now Alabama Highway No. 35 in Fort Payne, Alabama. In 1939, the State acquired an additional 17-foot right-of-way along each side of the then-existing highway. It is the State's failure to record this second acquisition that is in dispute.
Appellees, L.R. Abbott and C.R. Abbott, constructed a store on part of the State's 17-foot right-of-way, and they contend that because they purchased their property for value and without notice of the condemnation order that their land is free of any encumbrances resulting from that unrecorded order.
The trial court, in its final decree, held as follows:
"Evidence presented at a hearing before the court establishes that the State acquired a 66-foot right-of-way in 1932 for the construction of Highway 35. The State claims that it acquired an additional 34 feet of right-of-way by a 1939 condemnation proceeding which increased the width of the right-of-way to 100 feet. Through an apparent oversight in 1939, the documents of this condemnation proceeding were not filed of record in the DeKalb County Probate Office and remained unrecorded until June, 1983.
"The defendant purchased the property in question in 1965 unaware that the State was claiming a right-of-way of 100 feet as opposed to 66 feet as shown by the records then on file in the Probate Office. The defendant contends that because the State's 1939 acquisition was not recorded in the Probate Office in 1965 and because he had no actual knowledge of such acquisition when he purchased the property in 1965, the State's claim is inoperative and void as to him.
"The law which governs is found in Section 35-4-90, Code of Alabama (1975):
"It is clear that the application of this statute voids the State's claim to a 100-foot right-of-way across the defendant's property, and that the state's right-of-way across defendant's property is limited to 66 feet.
"This is a classic example of the legal consequences that can result by a failure to record in the Probate Office deeds and other documents relating to [a] real estate transaction. The law exempts no one not even the State from such consequences."
The Abbotts contend that they fall squarely within the protection of § 35-4-90. We agree.
The crucial question is whether an order of condemnation is a "conveyance of real property" within the meaning of § 6887, which was applicable at the time.[1]
We have found sparse authority on the issue, and it was only on application for rehearing that we were furnished, for the first time, with any authority which discussed the specific question. On application for rehearing, our attention has been called to two cases from other jurisdictions which have addressed the issue specifically and have held that the transfer of title by an order of condemnation is not a "conveyance" for the purpose of recordation statutes. See State Highway Commission v. Meeker, 75 Wyo. 210, 294 P.2d 603 (1956); City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477 (1897).
Black's Law Dictionary 402 (rev. 4th ed. 1968) defines a "conveyance" as follows:
In reaching the decision we reach, we necessarily have considered how the Alabama legislature has addressed the question of providing notice of eminent domain proceedings.
An order of condemnation is a transfer of title to land, and, as we stated earlier, the only question is: Did the legislature intend for § 6887, Code of 1923 (now Code 1975, § 35-4-90), to include orders entered in condemnation proceedings? We think so, even though the State of Alabama and the Alabama Power Company, as amicus curiae, both strongly insist that orders of condemnation have never been considered by them to be transfers of title which have to be recorded. Condemnors may, or may not, have recorded orders of condemnation, but that fact cannot change the meaning of our recordation statutes. We cannot accept the State's argument that the mere entry of an order of condemnation is sufficient notice that title to land has been transferred. In fact, the legislature has, as late as 1971, provided for more notice, rather than less notice, to be given of condemnation proceedings.
In 1971, the legislature enacted Act No. 181, Acts of Alabama, Second Special Session, 1971, pp. 4441-42:
"* * *
"Section 4. Section 70, of Title 47, Alabama Code of 1940, is hereby amended to read as follows:
"Where the suit, proceeding, or levy, notice of which has been entered in the lis pendens record, shall be terminated, whether on the merits or not, the court wherein the same was pending may direct the judge of probate who has custody of the record to make such entry thereof as he shall prescribe, to give notice of the result of the suit, proceeding or levy, and of the devolution of the land, and the judge of probate shall at once, on presentation thereof, file and record an entry and note the date of filing and recording on the record; provided, that where an application has been made for an order of condemnation of land, or any interest therein, the probate judge shall make such entry on his own motion. The office or party filing such notice must, within thirty days after demand, enter on the margin of the record of the same satisfaction *1227 of such claim under the lis pendens notice whenever the same shall have been fully satisfied or terminated, and such satisfaction shall have the same effect as if made by the judge of probate as hereinabove provided. Nothing in this section, nor in Section 74, of Title 47, Alabama Code of 1940, shall be construed to alter the form used in maintaining the lis pendens records in those counties where the public land records are, by authority of the statute law of the State of Alabama, maintained on microfilm." (Now Code 1975, § 35-4-136, emphasis added.)
The title to Act No. 181 sets forth its purpose in its title, as follows:
The fact that the legislature specifically amended the 1940 Code sections dealing with lis pendens, and took no action with regard to present Code section 35-4-90, does not constrain us to reach the same result reached in the cases from Wyoming and Texas, cited to us on application for rehearing.
As we stated earlier, we do not know whether the State habitually fails to record orders of condemnation, but we do know that the order of condemnation in the subject case was ordered to be "recorded" by the probate judge. His order reads, in part:
Furthermore, a state right-of-way engineer testified concerning the subject condemnation, as follows:
*1228 If our construction of § 35-4-90 is considered by the legislature to be contrary to its intent, the legislature is free to amend § 35-4-90 to specifically provide that orders of condemnation need not be recorded.
Based on the foregoing, the original opinion of this Court is withdrawn, the application for rehearing is denied, and the judgment of the trial court is affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING DENIED; AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] Code 1975, § 35-4-90, cited by the trial court in the final decree, is identical in language to § 6887, Code of Alabama 1923, which would have been the applicable section on December 21, 1939, the date of the order of condemnation. | September 13, 1985 |
c876177b-e5d2-4e0b-99f3-28b702d0fdc6 | Central of Georgia Railway Company v. Steed | 248 So. 2d 110 | N/A | Alabama | Alabama Supreme Court | 248 So. 2d 110 (1971)
CENTRAL OF GEORGIA RAILWAY COMPANY, a corporation
v.
J. P. STEED.
6 Div. 774.
Supreme Court of Alabama.
April 8, 1971.
Rehearing Denied May 6, 1971.
*111 Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
*112 MADDOX, Justice.
Appellee, J. P. Steed, brought suit against the Central of Georgia Railroad under the provisions of the Federal Employers' Liability Act, Title 45, § 51 U.S.C., in the Circuit Court of Jefferson County, Alabama on March 3, 1967.
Plaintiff (Appellee) alleged that he sustained injuries as a result of the negligence of the officers, agents or employees of the defendant while acting within the line and scope of their employment by the defendant, or by reason of a defect or insufficiency due to the negligence of the defendant in its cars, engines, appliances, machinery, tracks, roadbed, works or other equipment. In count two he alleged that the defendant negligently failed to exercise reasonable care to furnish or maintain him a reasonably safe place to perform his work.
Prior to the trial of the case, Central of Georgia filed a third party complaint against Riegel Textile Corporation. Riegel removed the case to the U. S. District Court. The issues between the Central of Georgia and Riegel were severed from the main case and the trial was between Steed and Central of Georgia.
The track where the accident occurred was built, maintained, and used in accordance with a track agreement between Riegel and Central of Georgia which provided in part that Riegel would own and maintain the spur track (or if it failed to maintain the track then it was agreed that the railroad would do it), and that Riegel would indemnify Central of Georgia from loss or damage from any act of the tenant, its employees or agents, while others were on or about the track.
This spur track was situated in part of a roadway in the Riegel plant. At about the time of the accident, a boiler was being constructed across the road from the loading platform. Gravel and debris would get on the tracks from trucks traveling along the roadway.
The alleged negligence occurred on December 30, 1966. Steed was called to fill the regular job of an absent employee whose job included working for the railroad at the Riegel plant that day. Steed had worked with the railroad at the Riegel plant before. He was directing the switching of cars at the Riegel plant by radio. The cars were moving at a speed of about 2-3 miles per hour and Steed was directing the engineer by radio as to how close he was to the rear of the car to be coupled. Steed was standing on the side ladder of the lead car moving toward the loading platform and was between the car and the platform when the derailment occurred. Steed was caught between the car and the platform and dragged 40-50 feet after being caught. The left leg was almost amputated save for a piece of skin and the right leg was badly fractured and torn.
As to the circumstances surrounding the accident, Steed testified that the track looked no different at the time of the derailment than it had on other occasions when he was there. He testified that he was riding on the lead car, approaching another car, and looking at the car ahead, when he heard the sound of rocks grinding and looked down and saw the wheels off the track. He then said that he tried to jump to the platform but was caught between it and the car. A railroad employee testified that there had been four or five derailments on the spur track to the Riegel plant prior to time of the derailment made the basis of this suit. Steed denied knowledge of any previous derailments on the spur track.
Steed was taken to a Trion, Georgia hospital where his left leg was removed below the knee. He was later taken to Baroness Erlanger Hospital in Chattanooga, Tennessee. Steed was in the hospital in Chattanooga some eighty days during which time he underwent two operations. Pins were placed in the right leg and he was placed in traction for seventy-three days. He was encased in a body cast and kept lying down for approximately three months. He was in and out of the hospital and home *113 in bed for various periods of time through January 23, 1968. He progressed from a wheel chair to a walker. At the time of trial, Steed maintained that he was uncomfortable in his artificial limb and that the stump swelled and drained and that his right leg was stiff and that he did not have full use of it.
When working, Steed made about $700 per month. If he had kept working, his seniority would soon earn him about $1100 per month. There is some testimony that he had suffered great mental anguish and a psychiatrist testified that Steed had become psychoneurotic as a result of the injury and further stated that future psychiatric care might be indicated.
The jury returned a verdict for the plaintiff in the amount of $500,000. On motion for a new trial, the plaintiff accepted a remittitur of $200,000, and the Court denied the defendant's motion for a new trial.
Central of Georgia argues primarily here that the verdict of the jury is so excessive in amount as to shock the conscience of the court, and that the verdict was obviously rendered by the jury as a result of bias, prejudice, or other improper motives, and that the remittitur ordered by the Court and consented to by the plaintiff, did not eradicate the alleged bias, prejudice or other improper motive. Succinctly stated, the railroad's argument of bias and prejudice is based upon the following premises:
1. The case was recessed for four days because of the death of a juror's mother.
2. The case was recessed for an additional week because of the illness of one of the jurors.
3. The jury deliberated for only forty-five minutes and returned a verdict for $500,000.
4. The trial court's reduction of the verdict by 40% indicates that bias and prejudice existed.
5. The judgment of $300,000 will give the plaintiff an income of $15,000-$18,000 annually for life and permit him to leave an estate of $300,000.
No inflexible rule exists to guide a court in determining whether bias, prejudice or other improper motive is indicated because of the amount of a particular jury verdict. This court has said that the internal evidence, the verdict itself, in the light of the facts clearly disclosed by the evidence, usually furnishes the determining data. Alabama Gas Co. v. Jones, 244 Ala. 413, 13 So. 2d 873 (1943).
On motion for a new trial the court ordered the plaintiff to file a remittitur of $200,000 or be required to try the cause again. On several previous occasions this court has determined that such action by the trial court gives rise to a favorable presumption as to the correctness of the amount of the judgment in the sum finally awarded. Airheart v. Green, 267 Ala. 689, 104 So. 2d 687 (1958); Hercules Inc. v. Jones, 284 Ala. 692, 228 So. 2d 9 (1969); Carlisle v. Miller, 275 Ala. 440, 155 So. 2d 689 (1963).
In Airheart v. Green, supra, the Court said:
No standard exists for the admeasurement of damages for pain and suffering, and the weight to be given evidence of pain and suffering is discretionary with the jury. Only when the verdict or the amount has been induced or reached on account of bias, passion, prejudice, corruption or other improper motive or cause does the court have authority to set the verdict aside or order a remittitur. The court is without authority to interfere with the verdict on the ground that in the opinion of the court the jury gave too much. Airheart v. Green, supra, and cases there cited. Stringfellow v. Rambo, 277 Ala. 349, 170 So. 2d 494 (1965).
We have carefully studied the entire record, taking into consideration the guiding principles set out in Airheart v. Green, supra, and being mindful that we must exercise our authority to disturb a jury verdict with great caution, we decline to order a further reduction or to order a new trial on the ground that the amount finally awarded is so excessive as to indicate bias, passion, prejudice or other improper motive.
Appellant railroad also claims that the trial court erred in not granting defendant's motion for a mistrial based on the cumulative effect of the following events which occurred during the course of the trial:
1. The mother of a juror died.
2. A juror became ill and had to be hospitalized.
3. The juror who became ill was required to continue service on the jury while still technically a patient at the hospital.
4. The husband of a juror at the courthouse where the case was tried made a statement to representatives of the defendant but which apparently was not communicated to the juror herself that the defendant should settle the case, that it had plenty of money.
The applicable statute is § 100 of Title 30, Code of Alabama, 1940 (Recomp. 1958):
Unquestionably, the trial of this cause did not proceed without difficulty. The trial Judge was aware of this fact and so stated in his order on the motion for a new trial. We have carefully examined the record, however, and fail to see that the trial Judge abused his discretion in refusing to grant a mistrial. The mother of the juror who died was quite elderly, was in a nursing home and had been ill for some time. The trial Judge determined not only from the doctor but from the juror herseld that she was able to participate in the trial as a juror. The trial Judge investigated thoroughly the alleged statement made by the husband of one of the jurors and after such investigation determined no prejudice existed. Moreover, we think the principle announced by this court in Shadle v. State, 280 Ala. 379, 194 So. 2d 538 (1967) is applicable here:
Appellant's Assignment of Error No. 51 is as follows:
During the cross-examination of plaintiff Steed, railroad attorneys attempted to introduce into evidence pleadings in a case filed in the Superior Court of Fulton County, Georgia styled "J. P. Steed and Ruth Steed, plaintiffs, v. Riegel Textile Corporation and McBerney Stoker and Equipment Co., defendants."
The trial court refused to admit the pleadings, stating:
*116 The fact that Steed had filed a suit against Riegel and McBurney Stoker in Atlanta was obviously before the jury. Steed himself testified that he "guessed" a suit had been filed on his behalf in Georgia. The trial Judge instructed the jury on two separate occasions to the effect that an individual could file several suits but could have but one satisfaction. Therefore, it would appear that even if it were considered to be error to reject the evidence, such rejection did not probably injuriously affect the substantial rights of the railroad. Supreme Court Rule 45, 261 Ala. XXXVII. Furthermore, we are not entirely convinced that a proper predicate was laid for the introduction of the pleadings since the record fails to show sufficiently that the pleadings sought to be introduced were drawn under Steed's direction or with his assent.[2] In addition, the trial Judge, upon rejecting the admission of the pleading was careful to point out the previous statement he had made to the jury about the filing of other lawsuits in connection with the transaction made the basis of this cause; therefore, the jury had to be aware of the fact that Steed had filed the other actions.
In Maddox v. Ennis, 274 Ala. 229, 147 So. 2d 788 (1962), this Court stated the "rule" of Cole v. L & N R. R., 267 Ala. 196, 100 So. 2d 684, where McElroy's Law of Evidence was quoted as follows:
"We note that Vol. II of the `Law of Evidence in Alabama' (1962), by Judge McElroy, Sec. 181.01 P. 7 states:
We find no reversible error in the trial court's rejection of the pleadings filed by Steed in Georgia.
Appellant claims in Assignment of Error No. 19 that the trial court erred in refusing to give defendant's charge:
The rejected charge is similar to charges condemned in Hill Grocery Co. v. Wilson, 265 Ala. 49, 89 So. 2d 687 (1956) and Nelson v. Lee, 249 Ala. 549, 32 So. 2d 22 (1947), and we find no error in refusing the charge.
Appellant's Assignment of Error No. 21 claims the trial court erred in refusing to give this charge:
In the case of Socier v. Woodard, 264 Ala. 514, 88 So. 2d 783 (1956) this court said:
This court has also held that the "unavoidable accident" charge has a tendency to confuse and mislead and the better practice is to refuse such a charge. Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277 (1960), and Riddle v. Dorough, 279 Ala. 527, 187 So. 2d 568 (1966).
Appellant claims the trial court erred in refusing to give this charge: (Assignment of Error No. 58)
Appellant cites no authority to support this assignment but maintains there was confusion in the jury's mind about the other lawsuits and the charge should have been given.
In any event, the matter was adequately covered in the court's oral charge as follows:
There was no error to refuse the charge. Supreme Court Rule 45.
Appellant railroad says that the trial court erred in refusing to give this charge:
The defense available in an F. E. L. A. action is that the employer was free from negligence proximately causing the injury. Contributory negligence of the plaintiff would not bar recovery but would merely mitigate damages. The trial court charged the jury in great detail on this point of law. The charge is somewhat confusing, and the trial court adequately covered the question of the plaintiff's alleged contributory negligence in his oral charge to the jury.
Assignment of Error No. 37 is to the effect that the trial court erred in refusing this charge:
Of course, under Title 45, § 51 U.S.C. there is no presumption of negligence against the carrier arising upon mere proof of injury to or death of an employee. Appellant recognizes that there is a prima facie presumption of negligence where there is a derailment, but claims that in instances where the cause of the derailment is explained by the evidence in the case then the presumption vanishes.
The case of Ruddy v. New York Central R. R., 224 F.2d 96, cert. den., 350 U.S. 884, 76 S. Ct. 137, 100 L. Ed. 779 (1955) stands for the proposition that under the res ipsa loquitur doctrine, negligence of the railroad causing injury could be inferred from the mere fact that the car was derailed on the spur track. In view of the fact that there was evidence of a derailment which caused the injury here, and since the trial Judge substantially covered the question of the burden of proof on the plaintiff and the question of contributory negligence in F. E. L. A. cases in his oral charge, there was no error in refusing the charge. Supreme Court Rule 45, 261 Ala. XXXVII.
Appellant claims that the trial court erred in qualifying the jury as to whether any members of the jury were employees of or had any financial interest in the alleged insurance carriers of Riegel Textile Co. and McBurney Stoker Equipment Corporation.
Appellant, in brief, says that the trial judge and the appellee fostered "an insidious plan to brainwash the jurors into believing that a recovery by the plaintiff would really not affect the railroad financially." We find nothing in the record to substantiate this statement made in brief and we are bound by the record.
We might point out that counsel for the railroad opened the controversy by stating to the prospective jurors that the railroad had no insurance. He then mentioned the suit in Georgia and that the suit was against McBurney and Riegel and asked the prospective jurors if they had ever worked for either of these two companies. Plaintiff's counsel then asked the court to qualify the jury as to their interest in the insurance carriers for the two companies. Appellee maintains that the court cautiously exercised its discretion to examine the prospective jurors, and the record supports his position.
In Roan v. Smith, 272 Ala. 538, 133 So. 2d 224 (1961), this Court stated:
Since the subject of insurance coverage was injected by the railroad, and the jury was qualified as to any interest in the two companies in the Georgia suit, we do not think under the rule set forth in Roan, supra, that there was an abuse of discretion. We do not hold, however, that such qualifying questions would be proper in every case but under the facts of this case, we find no prejudicial error.
*119 Assignments of Error No. 47 and No. 49 concern a track agreement between the railroad and Riegel Textile Corporation. Defendant's counsel objected to the statement made by plaintiff's counsel in his opening address to the jury:
The agreement was later admitted into evidence over the objection of the railroad. The railroad maintains that the agreement was not material or relevant and was highly prejudicial, claiming that the plaintiff insinuated that the railroad was indifferent about the track since Riegel would have to bear expenses if damage or injury resulted.
Steed's attorneys say that the court was not apprised of any lack of materiality in the contract because appellant's objection was too general. The agreement was the first item of evidence sought to be introduced in the trial. The following occurred.
"THE COURT: Who will you have, gentlemen?
Appellant cites the case of Baltimore & O. R. R. v. Rodeheaver, 197 Md. 632, 81 A.2d 63 (1951) to support its argument that the agreement was inadmissible.
In Rodeheaver, supra, it was the railroad there which offered the indemnity agreement for the purpose of showing that the State Roads Commission agreed to hold the railroad harmless from all costs, etc., for injury to persons growing out of the erection, maintenance or operation of a bridge. The appellate court held that the lower court properly sustained objection to the document, since the case was not concerned in any way with whether the commission should indemnify the railroad.
At least one other jurisdiction has held that such agreements are admissible if any part of it relates to the duties of the parties thereto respecting clearances or dangerous obstructions, or otherwise bears upon the present controversy. Truitt v. Southern Pacific Co., 112 Cal. App. 2d 218, 248 P.2d 1083 (1952).
Appellant's main argument is directed at the paragraph of the agreement which provided that Riegel would indemnify Central of Georgia against damages on account of the spur track. As is readily apparent, the objection made by appellant's counsel does not specifically point out to the court the indemnification paragraph of the agreement as being the objectionable portion. The court was not requested *120 to delete or exclude the indemnification paragraph from the remainder of the agreement. In view of this, even assuming without deciding that the indemnification paragraph may have been inadmissible, the court should not be put in error when no specific objection is made. We think that the portions of the agreement which spelled out the duties of the railroad and Riegel with regard to the spur track were clearly admissible on the issue of the responsibility of the railroad to provide the plaintiff with a safe place to work. This court has previously held that when portions of a document are admissible the whole document may be admitted without error even though some parts of the document may be inadmissible and prejudicial. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757 (1939). We find no error in admitting the agreement under the facts and circumstances of this particular case.
Appellant claims that the trial court erred in overruling its objection to the introduction in evidence of a photograph of the plaintiff while he was in traction in the hospital. Appellant's attorneys argue that the only possible purpose of the photograph was to inflame the jury and in support of their argument cite Bagley v. Grime, 283 Ala. 688, 220 So. 2d 876 (1969). We have examined the photograph introduced in this case and find that it is not of the inflammatory character as the one sought to be introduced in Bagley. Furthermore, in Bagley the trial court had refused to permit the introduction of a photograph of a "crumpled body" taken at the scene and this court held that the court acted properly in excluding the photograph in that case. This Court there said:
We hold that the trial court committed no error in allowing the photographs of the plaintiff which were taken while he was in traction in the hospital.
We have carefully considered appellant's other assignments of error which were argued in brief and find no error was committed by the court.
The judgment of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and LAWSON, SIMPSON, MERRILL, HARWOOD, BLOODWORTH and McCALL, J J., concur.
COLEMAN, J., dissents.
On application for rehearing, Central of Georgia raises but one new issue, the assessment against it of the ten per cent penalty required to be assessed under the provisions of Title 7, § 814, Code of Alabama, 1940 (Recompiled, 1958). Central of Georgia assigns several grounds in its motion asking this court to "expunge, delete or remove the ten per cent penalty, amounting to $30,000, which has been assessed against the appellant." Stated succinctly, the grounds are (1) that the assessment is discriminatory and denies it equal protection of the law under the fourteenth amendment to the Federal Constitution; (2) that Title 7, § 814 is repugnant to the Alabama Constitution in that it penalizes an unsuccessful defendant-appellant, but does not penalize an unsuccessful plaintiff-appellant; (3) that Alabama cannot assess a penalty in a Federal Employers' Liability Act case wherein the cause of action arose outside the State of Alabama; (4) that Alabama's assessment of the penalty is different from other states, creating an inconsistent and unfair application of the *121 FELA law among the courts of the several states; (5) that the assessment is illegal and (6) that Title 7, § 814 is unconstitutional.
This Court has previously decided that the ten per cent penalty imposed by Title 7, § 814 is appropriate. In Atlanta, Birmingham & Coast R. Co. v. Cary, 250 Ala. 675, 35 So. 2d 559 (1948), we had the exact question before us involving an appeal in an action under FELA. We said:
The application for rehearing is denied and the motion to expunge the ten per cent penalty prescribed by Title 7, § 814, is denied.
Opinion extended. Application for rehearing overruled. Motion to expunge 10% penalty denied.
HEFLIN, C. J., and LAWSON, SIMPSON, MERRILL, HARWOOD, BLOODWORTH and McCALL, JJ., concur.
COLEMAN, Justice.
On original deliverance I was of opinion that the judgment for plaintiff should be reversed and a new trial granted to defendant. I am of the same opinion still and do not reach the question treated in the opinion of the court on rehearing.
[1] During opening statements to the jury both sides discussed the suit by Steed against Riegel and McBerney Stoker, the discussion finally terminating in a statement from the Court as follows:
"THE COURT: I was thinking something that I was about to say. I know the jury is already mystified about one aspect of this lawsuit, with reference to other suits, and so forth.
"They may be laboring under the impression that, for instance, if there were four or five automobiles out here in a crash, that you could sue the driver of each one of them if you got hurt in it.
"Well, you could.
"But, if you are mystified as to that, here, where this plaintiff is suing first one and then another, the law says that no litigant can ever have but one satisfaction of his claim.
"If he doesn't take the moneyhe can sue various people, but he can't [sic] ever have but one satisfaction of the claim, whether it comes from this source, or the other source.
"So, that isanother reasonthe only reason I have for mentioning it is this:
"What we are going to try, as best we can, if counsel will work with me on it, and I hope they will, is to get our minds on this lawsuit and try it in fairness and in justice to both sides, and we can do this if we will put our minds on the business of trying this lawsuit on its merits, and on the law of the case, and on the testimony in the case, in trying this case and disposing of it.
"I will give each side an exception to what I have said."
[2] "Q (BY MR. SADLER:) Mr. Steed, on your behalf a suit has been filed in the State of Georgia, has it not?
"A I guess it has.
"Q Against the Riegel Textile Corporation?
"A I haven't [sic] never seen it, just
"Q (Interposing) You authorized your attorney to do that, did you not?
"A No audible answer.
"MR. SADLER: I would like to introduce this exemplified copy of the complaint, if the Court please, and if we can have this marked as an exhibit." | April 8, 1971 |
7d6035f9-25ae-4347-bb24-9af855528fb0 | Ellison v. Town of Brookside | 481 So. 2d 890 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 890 (1985)
Roger Dale ELLISON
v.
TOWN OF BROOKSIDE and Town of Cardiff.
84-766.
Supreme Court of Alabama.
December 20, 1985.
*891 John W. Haley and S. Greg Burge of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
H. Jadd Fawwal of Fawwal & Fawwal, Bessemer, and John T. Natter of Pope & Natter, Birmingham, for appellees.
SHORES, Justice.
The Town of Cardiff, Alabama, issued warrants for the arrest of Roger Dale Ellison for traffic offenses, which included reckless driving, improper tag, failure to yield to a blue light and siren, and driving while his license was suspended. On March 9, 1980, while Ellison was within the town limits of Brookside, officers from Cardiff and Brookside attempted to arrest him. Ellison fled on foot, with the officers in pursuit. One of the officers shot Ellison in the right leg.
Ellison filed an action against both municipalities, alleging that their agents, acting within the line and scope of their employment, negligently and proximately injured him. On April 8, 1985, the day of trial, both municipalities filed a motion to dismiss the action for Ellison's failure to join the arresting officers as defendants. After hearing arguments, the trial court dismissed the action, with 30 days' leave to amend the complaint. Ellison then appealed to this Court, claiming error in the trial court's granting of the motion to dismiss.
The sole issue addressed in this case is whether Ellison was required to join the arresting officers as defendants in his action against the municipalities based on the officers' allegedly negligent conduct in the line of duty. We hold that he was not required to do so, and we reverse the judgment of the trial court.
According to Code of Ala.1975, § 11-47-190:
In a long line of cases, this Court has interpreted the statute to limit municipality liability to two distinct classes. In the first classification, the municipality may be liable, under the doctrine of respondeat superior, for injuries resulting from the wrongful conduct of its agents or officers in the line of duty. In the second classification, the municipality may be liable for injuries resulting from its failure to remedy conditions *892 created or allowed to exist on the streets, alleys, public ways, etc., by "a person or corporation not related in service to the municipality." Isbell v. City of Huntsville, 295 Ala. 380, 330 So. 2d 607, 609 (1976); City of Birmingham v. Carle, 191 Ala. 539, 542, 68 So. 22, 23 (1915). The municipality must have actual or constructive notice of the condition. If the claim is predicated under the second classification, then the third party shall also be liable. Isbell, supra, 330 So. 2d at 609, Carle, 191 Ala. at 541-42, 68 So. at 23. Furthermore, Code 1975, § 11-47-191, provides that when bringing an action under the second classification, the plaintiff must join the third party, unless the mayor or chief executive officer fails to furnish the name of the party within ten days after the plaintiff has made the appropriate demand. Isbell, supra, 330 So. 2d at 609. See, also, Hillis v. City of Huntsville, 274 Ala. 663, 151 So. 2d 240 (1963); City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163 (1942); City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169 (1930).
This case falls under the first classification. The arresting officers were agents of the Towns of Brookside and Cardiff and were allegedly acting within the scope of their employment. They were not third parties "not related in service" to the municipalities. The municipalities, therefore, are responsible for their acts under the doctrine of respondeat superior. Furthermore, this case has nothing to do with the defects or conditions of the municipalities' "streets, alleys, public ways or buildings." The facts of this case do not trigger the joinder and notice requirements of Code 1975, §§ 11-47-190 and 11-47-191. The trial court erred in granting the municipalities' motion to dismiss. Its judgment is, therefore, reversed, and the cause is remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur. | December 20, 1985 |
fb8ddf5e-d950-4e33-8ea6-d8065751edef | Green v. Standard Fire Ins. Co. of Ala. | 477 So. 2d 333 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 333 (1985)
Sylvester GREEN and Linda Green
v.
STANDARD FIRE INS. CO. OF ALABAMA, et al.
83-561.
Supreme Court of Alabama.
September 27, 1985.
*334 Roy M. Johnson III of Perdue, Johnson, Boone & Johnson, Birmingham, for appellants.
Jasper P. Juliano and Joseph W. Buffington of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellees Standard Fire Ins. Co. and All Risk Ins. Agency.
Charles Cleveland of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for appellee The Ins. Store, Inc.
ALMON, Justice.
This is the second appeal of this case. In Green v. Standard Fire Ins. Co. of Alabama, 398 So. 2d 671 (Ala.1981), this Court held that Standard Fire had not effectively cancelled its policy of automobile liability insurance with Sylvester and Linda Green. The prior appeal was from a declaratory judgment action filed by Standard Fire. Upon remand, the Greens filed a complaint for damages against Standard Fire and its agents, All Risk Insurance Agency and The Insurance Store. The case went to trial, but the court granted the defendants' motions for directed verdict at the close of plaintiffs' evidence. The Greens appeal.
The Greens allege that Standard Fire breached its contract of insurance with them by failing to defend them in two actions arising out of an automobile accident in which Linda Green was involved shortly after the putative expiration date of the policy. In the policy, Standard Fire agreed to defend the Greens in any suit for injuries covered by the policy. Two suits were filed against the Greens during the pendency of the declaratory judgment action. Because Standard Fire disclaimed liability under the policy, the Greens retained counsel to defend them.
The first item of damages that the Greens seek in this action is the attorney's fees they incurred in defending the automobile injury suits against them. These fees appear to be small, because the suits were continued during the pendency of the *335 declaratory judgment action and its appeal, and because Standard Fire assumed the defense of the suits after this Court reversed the declaratory judgment on the issue of liability coverage.
Attorney's fees incurred as a proximate result of Standard Fire's refusal to defend the suit are appropriate damages for breach of contract. If Standard Fire had not denied that its policy was in force at the time of the accident, it would have been obligated to provide legal representation for the Greens. To the extent that these were proper damages claimed in the instant suit, the trial court erred in granting the motion for directed verdict in favor of Standard Fire.
The second item of damages which the Greens claim against Standard Fire is their attorney's fees and costs from the declaratory judgment action and its appeal. These are not recoverable. City of Vestavia Hills v. Randle, 292 Ala. 492, 296 So. 2d 710 (1974); Clark v. Exchange Ins. Ass'n, 276 Ala. 334, 161 So. 2d 817 (1964). The Greens claim that Standard Fire's assertion that it had effectively cancelled its coverage was frivolous, and so they should be allowed to recover. We need not decide whether such a claim is absolutely precluded under the authority of the cases cited, because it is clear that Standard Fire's claim was not frivolous. The trial court held in its favor. This Court affirmed in part and reversed in part. Although this Court held that the notice of cancellation of liability insurance was not effective for lack of a statement of reasons, as required by Code 1975, § 27-23-23, Standard Fire was entitled to maintain its argument to the contrary. To the extent that the directed verdict in the instant action applies to the damages sought for attorney's fees in the declaratory judgment action and its appeal, the judgment of the trial court is due to be affirmed.
The Greens sued All Risk Insurance Agency and The Insurance Store for conversion of the policy. The Insurance Store sold the Greens their policy, paid Standard Fire the premium in advance, and then collected payments from the Greens. When the Greens did not make the required payments, The Insurance Store asked All Risk to cancel the policy. All Risk sent notice of cancellation to the Greens. The Greens contend that these actions constitute an illegal assumption of ownership over the policy and thus support their action for conversion.
The parties stipulated in the pre-trial order, however, that The Insurance Store was an authorized general agent of Standard Fire and that All Risk was an authorized general managing agent of Standard Fire. A general agent "has authority to act for his principal in all matters in the ordinary course of business." Protective Life Ins. Co. v. Green, 226 Ala. 512, 515, 147 So. 442, 444 (1933). Standard Fire had the right to cancel the policy for nonpayment of premiums. All Risk and The Insurance Store also had that right as general agents of Standard Fire. The trial court committed no error in directing a verdict for All Risk and The Insurance Store.
In accordance with the foregoing, the judgment of the circuit court is affirmed in part, reversed in part, and remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | September 27, 1985 |
b82c60d1-c2b6-4e33-ab7e-73e923938f61 | Ex Parte Wright | 477 So. 2d 492 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 492 (1985)
Ex parte Dolphus WRIGHT.
(Re: Dolphus Wright v. City of Montgomery).
84-980.
Supreme Court of Alabama.
September 27, 1985.
Raymond Johnson, Montgomery, for petitioner.
J. Bernard Brannan, Jr., Montgomery, for respondent.
FAULKNER, Justice.
We granted the defendant's petition for a writ of certiorari to review the Court of Criminal Appeals' decision in Wright v. City of Montgomery, 477 So. 2d 489 (Ala. Crim.App.1985), which is in conflict with a prior decision of our former Court of Appeals, Trawick v. City of Birmingham, 23 *493 Ala.App. 308, 125 So. 211 (1929). In Trawick, the Court of Appeals ruled that a defendant who was tried and convicted in a municipal court for speeding could not subsequently be prosecuted for driving while intoxicated, both offenses being based on the same set of facts. In Wright the court declared that Trawick was not the law in Alabama. It ruled that a prosecution and conviction for a lane violation did not bar a subsequent prosecution for driving under the influence arising from the same set of facts.
On the night in question a Montgomery police officer observed the defendant's automobile swerve into the wrong lane. After stopping the defendant's vehicle, the officer noticed the smell of alcoholic beverages about the defendant's person. The officer conducted field sobriety tests and ultimately arrested the defendant and charged him with driving under the influence of alcohol (D.U.I.) and improper lane usage. The defendant went to a city magistrate, pleaded guilty to the lane violation, and paid the specified fine. The defendant was subsequently tried and convicted of D.U.I. in municipal court and he appealed to circuit court. There he filed a plea of former jeopardy, alleging that his conviction of improper lane usage precluded his subsequent prosecution for D.U.I. The plea was denied. The defendant was tried and convicted, and the Court of Criminal Appeals affirmed.
The Fifth Amendment to the United States Constitution and Section 9 of the Alabama Constitution provide that no person can twice be placed in jeopardy for the same offense. The double jeopardy provisions confer three separate guarantees: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969).
This case involves the second of the three types of double jeopardy protections. The defendant contends that the D.U.I. prosecution constituted a second prosecution for the lane violation. There are two aspects to the double jeopardy question, whether jeopardy has attached and whether the two offenses are the "same" for double jeopardy purposes. See Cook, Constitutional Rights of the Accused; Post-Trial Rights, § 63-69 (1976); Comment, Double JeopardyDefining the Same Offense, 32 La.L.Rev. 87 (1971); Note, Twice in Jeopardy, 75 Yale L.J. 262, 268-69 (1965); Note, 7 Brooklyn L.Rev. 79 (1937).
Jeopardy attaches on a guilty plea when the plea is accepted and entered by a court with jurisdiction. Odoms v. State, 359 So. 2d 1162, 1164 (Ala.Crim.App.1978). See cases noted in Annot., 75 A.L.R.2d 683, 692 (1961). City magistrates are authorized to accept guilty pleas and collect fines for minor traffic violations. Ala. Rules of Judicial Admin., Rule 18(II)(B)(2)(c). Therefore, the entry of a guilty plea and acceptance of the fine by the magistrate constituted an adjudication of the lane violation charge and jeopardy attached. The dispositive issue, therefore, is whether the two charges constitute the "same offense" for double jeopardy purposes.
The test for determining the identity of offenses under the Fifth Amendment was set out in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Blockburger provides that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304. Alabama has applied the Blockburger test to determine whether two offenses are the "same" under the Alabama Constitution. See Rowell v. State, 447 So. 2d 193, 195 (Ala.Crim.App.1983), writ quashed as improvidently granted, 447 So. 2d 196 (Ala.1984). The Blockburger test turns on the statutory elements of the two offenses, not on the actual evidence that may be used by the state in proving the crimes. Iannelli v. United States, 420 *494 U.S. 770, 785 n. 17, 95 S. Ct. 1284, 1293 n. 17, 43 L. Ed. 2d 616 (1975).
In reliance on Blockburger, the State argues that because each offense requires the proof of at least one element which is not among the elements of the other crime the two offenses are not the "same." Driving under the influence does not require a showing that the defendant committed a lane violation; proof of the lane violation does not require a showing of intoxication.
The defendant argues, however, that Blockburger was "effectively overruled" by Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). In Ashe six men were engaged in a game of poker in the basement of a residence when three or four armed men broke into the basement and robbed them. The defendant was charged with the robbery of one of the victims and was found not guilty. The defendant entered a plea of double jeopardy to a subsequent prosecution for the robbery of another of the poker players. The witnesses at the second trial were, for the most part, the same ones who had testified at the first trial except that the state failed to call one of the participants in the poker game whose identification of the defendant during the first trial had been "conspicuously negative." The Court reversed the defendant's conviction on the grounds that collateral estoppel was embodied within the double jeopardy provision. It ruled that once a jury had determined that a reasonable doubt existed about the defendant's identity, the state could not relitigate that issue. 397 U.S. at 446, 90 S. Ct. at 1195. Ashe engrafted an exception onto the Blockburger rule, that the failure of the prosecution to consolidate all offenses arising out of one transaction will bar a subsequent prosecution which, though technically for a different offense, would require the state to relitigate an issue resolved in the defendant's favor in the first trial.
The defendant's argument that Ashe had the effect of "overruling" Blockburger is clearly erroneous. The United States Supreme Court has relied on Blockburger as authoritative on numerous occasions since Ashe was handed down. See, e.g., Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 339, 101 S. Ct. 1137, 1142, 67 L. Ed. 2d 275 (1981); Illinois v. Vitale, 447 U.S. 410, 416, 100 S. Ct. 2260, 2265, 65 L. Ed. 2d 228 (1980); Whalen v. United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 1437, 63 L. Ed. 2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977); Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S. Ct. 1284, 1293 n. 17, 43 L. Ed. 2d 616 (1975). Moreover, the collateral estoppel theory applied in Ashe is inapplicable to this case. There was no issue decided in the defendant's favor in the first trial which the state relitigated in the second trial.
Notwithstanding the Supreme Court's continued reliance on Blockburger and its insistence that the Blockburger rule is to be applied to a given case by examining the elements of the offenses charged, not "the facts alleged in a particular indictment," Whalen v. United States, 445 U.S. 684, n. 8, 100 S. Ct. 1432, n. 8, 63 L. Ed. 2d 715 (1980), there is a disagreement among members of that Court as to how to deal with the double jeopardy question presented by a subsequent prosecution for a crime where the actual evidence necessary to prove the subsequent offense will entail proof of a prior offense for which the defendant has already been convicted. Compare majority and dissenting opinions in Thigpen v. Roberts, ___ U.S. ___, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984); Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). The dispute centers around whether Blockburger should be applied to the elements of the crime in the abstract or in light of the particular facts in question. For instance, in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), the defendant was convicted of operating an automobile without the owner's consent (joy riding). The Court ruled that his subsequent *495 prosecution for auto theft[1] violated the double jeopardy prohibition. A proof of auto theft will usually include proof that the defendant operated the vehicle without the owner's consent. Since the theft statute involved specifically applies to automobiles, that result will obtain under that statute regardless of whether the elements of the statute are examined in the abstract or in light of the particular facts in question. Suppose, however, that Brown had been accused of theft under a generic theft statute which did not specify the type of property taken. If one applies Blockburger to the elements of the two offenses in the abstract it would seem that they are not the "same," since proof of theft, which may involve any sort of personal property, will not always entail proof that an automobile was taken, a necessary element of joy riding. Application of Blockburger in light of the facts in question in Brown v. Ohio produces a different result, however, since proof of theft under those facts would require proof of the offense for which the defendant was previously convicted.
In Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977), the defendant was convicted of felony murder prior to his prosecution for robbery arising out of the same transaction. The Oklahoma court, in whose jurisdiction the case arose, rejected the defendant's double jeopardy argument by pointing out that the two offenses in question, robbery with firearms and murder, were distinct. Proof of felony murder in the abstract does not necessarily entail proof of robbery. The felony murder statute merely required proof of the commission of "any felony." Harris v. State, 555 P.2d 76, 80 (Okla.1976). In reversing the Oklahoma court's decision, the Supreme Court concluded that since proof of the underlying felony, robbery with firearms, was needed to prove the intent necessary for a felony murder conviction, the offenses were the same for double jeopardy purposes. 433 U.S. at 682, 97 S. Ct. at 2912, quoting 555 P.2d at 80-81. Since it was theoretically possible that a different felony could have supported the felony murder conviction, the court apparently applied Blockburger in light of the facts of that particular case rather than to the elements in the abstract. See Whalen, 445 U.S. at 708-11, 100 S. Ct. at 1446-48 (Rehnquist, J., dissenting).
Similarly, in Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), the issue was whether the state could prosecute a defendant for involuntary manslaughter by use of an automobile after his conviction for failure to reduce speed to avoid a collision. In reversing the Illinois Supreme Court's decision that the prosecution constituted double jeopardy, the Court reasoned that the double jeopardy provision was inapplicable if "manslaughter by automobile could be proved without also proving a careless failure to reduce speed." 447 U.S. at 419, 100 S. Ct. at 2266. That statement appeared to imply that Blockburger should be applied to the elements of the crimes in the abstract. The Court went on to state, however: ["I]t may be that to sustain his manslaughter case the state may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U.S. 682 [97 S. Ct. 2912, 53 L. Ed. 2d 1054] (1977)." 447 U.S. at 420, 100 S. Ct. at 2267. Aside from the ambiguousness denoted by use of the term "substantial," the Court seemed to imply in that statement that Blockburger should be applied in light of the facts of the case in question.
As one of its Justices candidly admitted, the Supreme Court's recent decisions *496 regarding the constitutional guarantee against double jeopardy "can hardly be characterized as models of consistency and clarity." Whalen v. United States, 445 U.S. 684, 700-01, 100 S. Ct. 1432, 1442, 63 L. Ed. 2d 715 (Rehnquist, J., dissenting.) It does not appear to us, however, that the D.U.I. charge and the lane violation were the "same offense" under the Blockburger test, whether the test is applied to the elements of the offenses in the abstract or in light of the facts of this case. Under the facts of this case the state will not need to prove the lane violation in order to prove the defendant violated the D.U.I. statute. Unlike the felony murder or vehicular homicide prosecutions in Harris, supra, and Vitale, supra, D.U.I. does not require proof that another offense was committed. The state needs only to prove that the defendant drove or was in actual physical control of the vehicle while intoxicated. Section 32-5A-191, Code of Alabama 1975. Since it was unnecessary to prove the lane violation[2] in order to prosecute the defendant for drunken driving, the two offenses were not the "same" for double jeopardy purposes.[3]
The judgment of the Court of Criminal Appeals is affirmed. The double jeopardy provisions of the United States and Alabama Constitutions do not prohibit the defendant's prosecution for drunken driving after his conviction for a traffic violation arising from the same incident.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
[1] The statute prohibited the theft of "any motor vehicle." 432 U.S. at 163 n. 2, 97 S. Ct. at 2224 n. 2.
[2] We realize that evidence relating to the lane violation was necessary as an evidentiary matter to show probable cause for stopping the defendant's vehicle. That connection is clearly too tenuous to result in a conclusion that the two offenses were the "same" for double jeopardy purposes, however.
[3] The parties framed the issues in terms of constitutional law only. It is pertinent to note, however, that Alabama has a statute, § 15-3-8, Code 1975, which provides legislative protection against double jeopardy beyond the protection provided by the constitution. It provides:
"Any act or omission declared criminal and punishable in different ways by different provisions of law shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision."
While the double jeopardy protections of the Fifth Amendment do not prohibit the state from prosecuting and punishing a defendant for several crimes arising out of a single act, see Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), § 15-3-8 does.
It is not necessary for us to determine whether the offenses arose out of the same act, however, because the legislature effectively truncated the application of § 15-3-8 in drunken driving cases by adopting § 32-5A-190(c), Code of Alabama 1975. That section provides: "Neither reckless driving nor any other moving violation... is a lesser included offense under a charge of driving while under the influence of alcohol or drugs." In so providing, the legislature manifested an intention to provide for multiple prosecutions and convictions for traffic violations committed by drunken drivers to the extent that such prosecutions would be constitutionally permissible. It is reasonable to assume, therefore, that the legislature did not intend for § 15-3-8 to operate in connection with drunken driving offenses. | September 27, 1985 |
d6d1c952-0f48-4a6d-b5fa-3adc0ab684cb | Reynolds v. FOWLER PEST CONTROL & INSULATION | 479 So. 2d 1185 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1185 (1985)
Maurice Gardner REYNOLDS and Rebecca Reynolds
v.
FOWLER PEST CONTROL AND INSULATION, INC., et al.
83-1029.
Supreme Court of Alabama.
September 27, 1985.
Rehearing Denied November 1, 1985.
Richard W. Tingle, Huntsville, for appellants.
Danny D. Henderson, Arnold Rankin Sneed, and John Caylor, of Williams, Spurrier, Moore, Rice, Henderson & Grace, Huntsville, for appellees.
ALMON, Justice.
This is an appeal from the trial court's order granting summary judgment for all defendants in a termite damage case based on fraud.
On December 30, 1981, the plaintiffs, Maurice G. Reynolds, Jr., and his wife, Rebecca Ann Reynolds, purchased from Chester Walls a home at 2820 Old Big Cove Road in Owens Crossroads, Alabama.
At the closing the plaintiffs were presented with a V.A. Form 26-8850 titled "WOOD DESTROYING INSECT INFORMATIONEXISTING CONSTRUCTION." This form was completed by James D. Holland, *1186 who was listed on the form as manager of Fowler Pest Control. This completed form was to become the basis of the plaintiffs' complaint for fraud.
The plaintiffs moved in after purchasing the house and experienced no difficulties with termites until the end of March. At that time the plaintiffs noticed a termite swarm along the sidewalk beside the front porch. The plaintiffs called Fowler Pest Control, which sent an employee to treat the problem. The plaintiffs saw no more termites until May, when they found termites inside the northeast corner of the house. While they were looking for damage caused by these termites, the floor collapsed beneath them and dropped down several inches. Upon inspection they found that termites had done extensive damage to certain support beams under the house.
The plaintiffs filed suit against Fowler Pest Control & Insulation, Inc.; Irby Fowler; James D. Holland; and Butch Holland, a.k.a. Ernest Holland, on the grounds of fraud. The alleged fraud was that the defendants had represented in writing on V.A. Form 26-8850 at the loan closing that the property was free of termite damage, when in fact there was significant damage to the house. They further alleged that the representations were false, that the defendants knew or should have known they were false, that they were made with the intent that the plaintiffs rely upon them, and that the plaintiffs believed the representations and to their detriment relied upon them and purchased the property.
From the trial court's order granting summary judgment in favor of all defendants, the plaintiffs now appeal.
We first address the defendants' contention that the plaintiffs failed to give notice of appeal within the 42-day time limit provided by Rule 4, A.R.A.P.
The trial court's order granting the defendants' motion for summary judgment was dated April 24, 1984. It was not a final judgment under Rule 54(b), A.R.C.P., because it did not contain an express determination that the judgment would be final, there being no just reason for delay. Rule 4, A.R.A.P., provides that "the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from." The plaintiffs gave notice of appeal on June 6, 1984. If the April 24 order established the date for the beginning of the 42-day time limit for filing an appeal, the notice of appeal would have been one day late.
This case, however, involved also a crossclaim by James D. Holland against Irby Fowler and Fowler Pest Control & Insulation, Inc., which was not dismissed until May 25, 1984. This cross-claim contained a definite money claim in count two and did not appear to be merely defensive, as contended by defendants.
We find, therefore, that there was no final judgment in this case until May 25, 1984, and thus, that this appeal was timely filed.
The plaintiffs contend that the trial court erred in granting the defendants' motion for summary judgment.
Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. White v. Law, 454 So. 2d 515 (Ala.1984); Griffin v. Little, 451 So. 2d 284 (Ala.1984); Rule 56(c), A.R.Civ.P. If there is a scintilla of evidence supporting the party against whom the motion is made, summary judgment may not be granted. Savage v. Wright, 439 So. 2d 120 (Ala.1983); Campbell v. Alabama Power Co., 378 So. 2d 718 (Ala.1979).
The plaintiffs base their claim solely on their theory of fraud. They contend that Fowler Pest Control represented on V.A. Form 26-8850 at the closing that the property was free of termite damage when in fact there was significant damage to the house. They further contend that Fowler *1187 Pest Control knew or should have known that this representation was false, that it was made with the intent that the plaintiffs rely upon it, and that in reliance on the representation they purchased the property.
Sections 6-5-100 through 6-5-104, Code of Alabama 1975, set out the elements of a civil action in fraud. An essential element of an action in fraud is a misrepresentation of a material fact. In the instant case the misrepresentation complained of was Fowler Pest Control's failure to disclose the existence of termite damage to the dwelling on V.A. Form 26-8850.
The plaintiffs refer to blocks 8 and 9 on the V.A. Form as the points where the misrepresentation occurred. Block 8 begins "BASED ON CAREFUL VISUAL INSPECTION OF THE READILY ACCESSIBLE AREAS OF THE PROPERTY" and then has choices A through E as possible conclusions to check. The Fowler Pest Control representative marked choice C, which provided: "Visible evidence of infestation was noted; proper control measures were performed." Block 9 provided "DAMAGE OBSERVED ABOVE, IF ANY" but had none of the three possible choices marked. The plaintiffs contend that these blocks as completed by Fowler Pest Control were misrepresentations and that they induced them to purchase the dwelling to their detriment.
A further reading of this form, however, reveals a statement in Block 11, titled "STATEMENT OF PEST CONTROL OPERATOR," that "This is not a structural damage report. Neither is this a warranty as to the absence of wood destroying insects." Because of these statements, the instant case can be distinguished from Savage v. Wright, supra, on which the plaintiffs rely as precedent for reversal. In Savage, the report by the pest control company contained the following:
The report in the instant case can be distinguished because it contained a statement that it was not a structural damage report and it specifically noted that a termite infestation had been found and treated. Furthermore, the deposition of Maurice Reynolds revealed that he received a graph at the closing showing the existence of termite tunnels and his deposition contained a statement by him that he understood that the graph "represent[ed] the structurethe house where the damage where the termites or infestation was noted and treated." The plaintiffs apparently were well aware that termites had been present and that damage was likely.
Therefore, from the evidence it is apparent that the plaintiffs were not the victims of any misrepresentation, and that summary judgment in favor of the defendants was proper. The judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | September 27, 1985 |
bda71060-bcbc-4146-a848-a4c0ebafc008 | Oakes v. Michigan Oil Co. | 476 So. 2d 618 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 618 (1985)
Thomas Jerry OAKES
v.
MICHIGAN OIL COMPANY, a Michigan corporation.
84-84.
Supreme Court of Alabama.
September 13, 1985.
*619 C. Park Barton, Jr. of Barton & Maddox, Tuscaloosa, for appellant.
James J. Sledge of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.
BEATTY, Justice.
This is an appeal by Thomas Jerry Oakes from an order dissolving a preliminary injunction and finding valid, as a matter of law, a subordination agreement. We affirm.
The relevant facts are as follows: Appellant Oakes is the owner of a 163-acre tract of land situated in Lamar County. This tract of land is subject to several mortgages, an oil and gas lease, and various other liens and claims that are not relevant to this appeal.
The first mortgage on the property, a Farmers Home Administration (FHA) mortgage, was given on November 6, 1975, securing a note in the principal amount of $21,410. The FHA mortgage was duly recorded in the probate office of Lamar County.
On July 23, 1979, Oakes and his former wife, Joan Oakes, executed an oil and gas lease in favor of Charles L. Cherry & Associates, Inc.; however, this lease was not recorded until September 27, 1979. Between the time the lease was executed and the time it was recorded, a second mortgage was given on the property. On August 17, 1979, Oakes and his former wife executed a promissory note in favor of the First State Bank of Lamar County in the principal amount of $150,000, secured by a Small Business Administration mortgage (SBA-1) also dated August 17, both of which were duly recorded in the probate office of Lamar County. Thus, although the oil and gas lease was executed prior to the execution of the SBA-1 mortgage, the SBA-1 mortgage was recorded before the lease was recorded. An undivided 85% interest in the lease was assigned to Michigan Oil Company (Michigan Oil) on June 30, 1980.
Thereafter, a third mortgage was given on the property. On October 21, 1980, Oakes and his present wife, Sarah Kate Oakes, executed another promissory note in favor of the First State Bank of Lamar County in the principal amount of $50,000, secured by a Small Business Administration mortgage (SBA-2), also dated October 21, both of which were duly recorded. The First State Bank subsequently assigned both the SBA-1 and SBA-2 mortgages to the Small Business Administration by an instrument dated January 9, 1982.
*620 By June of 1982, Michigan Oil had completed a gas well unit on lease property, which includes approximately 118 acres of land owned by Oakes. According to a Michigan Oil report of production through March of 1984, this well's net production amounted to $260,501.81. Of that amount, $96,060.40 was attributable to Oakes's 118 acres.
Oakes defaulted on both the SBA-1 and SBA-2 mortgages, but before foreclosure proceedings were instituted, both mortgages were assigned by the Small Business Administration to Michigan Oil by instruments dated May 9, 1983. Oakes continued in default, and on May 22, 1984, Michigan Oil recorded an instrument entitled "Subordination of Lien," by which Michigan Oil, as mortgagee, purported to agree with itself, as lessee, to subordinate the SBA-1 mortgage to the lease. In their brief, counsel for Michigan Oil explained its rationale:
Then, approximately three weeks after it recorded the subordination "agreement," Michigan Oil began foreclosure proceedings against Oakes on the SBA-1 and SBA-2 mortgages. On June 13, 1984, Michigan Oil published the foreclosure sale notice which stated that the sale would take place July 2, 1984.
Under the terms of these two mortgages, Oakes agreed that upon foreclosure "all equity or right of redemption" would be barred, and he thereby expressly waived these redemption rights.
After the foreclosure sale notice, Oakes filed a complaint in Lamar Circuit Court seeking a preliminary injunction to restrain Michigan Oil from foreclosing. Following a hearing, the court granted the preliminary injunction on June 27, 1984, and set the matter down for further hearing on September 18, 1984. At that hearing, Oakes attempted to show that there were some discrepancies in the production reports submitted by Michigan Oil. These alleged discrepancies are not raised as issues in this appeal. Oakes further claimed that the purported subordination by Michigan Oil was invalid, and that, although the lease provided that he received only three sixteenths of the net production as a royalty, the entire proceeds (sixteen-sixteenths) should have been applied towards the satisfaction of the FHA and the SBA-1 mortgages, because they were prior to and thus superior to the lease. Following this hearing, the trial court entered an order dissolving the preliminary injunction and holding valid, as a matter of law, the purported subordination "agreement" recorded by Michigan Oil subordinating the SBA-1 mortgage to the lease. It is from this order that Oakes appeals.
The issues presented on appeal are (1) whether the trial court was correct in its determination that the subordination agreement was valid and (2) whether the preliminary injunction should be reinstated.
It is clear from the language contained in the instrument entitled "Subordination of Lien" that Michigan Oil intended it to be, and to operate as, an "agreement," and Michigan Oil does not dispute this. The "agreement" states in pertinent part:
It should be noted that although this "agreement" inures to the benefit of Charles L. Cherry & Associates, Inc., to the extent of its remaining 15% interest in the lease, the agreement does not recite any consideration given by Cherry & Associates, nor does the record contain any evidence of any consideration given by Cherry & Associates.
At the outset, we note that subordination agreements are contracts, and such agreements, in order to be valid, must contain the requisite elements of a contract. Republic National Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349 (Minn.1979). The elements of a contract include: (1) agreement; (2) consideration; (3) two or more contracting parties; (4) a legal object; and (5) capacity. Freeman v. First State Bank of Albertville, 401 So. 2d 11 (Ala.1981). Thus, contrary to the form of the instrument filed and the arguments made by Michigan Oil, the "Subordination of Lien" is not a contract, inasmuch as it purports to be an "agreement" by and between the same party, albeit in different capacities: Michigan Oil as mortgagee and Michigan Oil as lessee. Perhaps Michigan Oil chose this "form" as the means of accomplishing the subordination simply because there is ample authority that an actual subordination agreement, based on a valid consideration, is necessary. See 59 C.J.S. Mortgages § 218, p. 289 (1949); 51 Am.Jur.2d Liens § 55, pp. 187-88 (1970); 4 H. Williams, Oil and Gas Law, § 697.3, at p. 533, and § 578 at p. 676 (1984); R. Hemingway, The Law of Oil and Gas, § 5.6, at pp. 218-21 (2d ed. 1983); Ledbetter, "Mortgages on Land Affecting Subsequent Mineral Interests," 32 Tex.L.Rev. 740 (1954).
Nevertheless, all of these authorities presuppose that there are at least two parties with competing interests: the mortgagee with the superior interest and the lessee with the subsequent mineral interest. In this case, however, where the title interest and the leasehold interest are held by the same party, and, therefore, merged, a subordination "agreement" is impossible and, in fact, unnecessary. While we have not been cited to, nor have we found, any similar cases that expressly validate or invalidate the steps taken by Michigan Oil in this case to protect its leasehold interest upon foreclosure (viz., buying the SBA-1 mortgage and subordinating it to the lease), we conclude that in this case these steps were, nevertheless, proper under the terms of the oil and gas lease in question.
The lease contains the following provision, which, among other things, allows Michigan Oil to buy the outstanding superior mortgage "for its own benefit":
Thus, under this provision, Michigan Oil, having acquired the SBA-1 mortgage, was free to subordinate it to the lease, thereby preserving Michigan Oil's more valuable leasehold interest upon its foreclosure on the SBA mortgages.
The general rule with respect to fixing the legal order of priority is stated at 59 C.J.S. Mortgages § 229, p. 296-97 (1949), as follows:
In effect, what Michigan Oil has done in this case is "waive or release" the priority of the mortgage in favor of the lease, and such change in the order of priorities is clearly "for its own benefit."
Therefore, under the facts of this case, we conclude, as a matter of law, that Michigan Oil, as holder of both the SBA-1 mortgage and the oil and gas lease, had the right to unilaterally change the order of priority by subordinating the mortgage to the lease. Oakes does not dispute the fact that he is in default on both mortgages. Oakes having failed to show any reason why Michigan Oil should not proceed with the foreclosure, the trial court correctly dissolved the preliminary injunction. Accordingly, the judgment below is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON and ADAMS, JJ., concur. | September 13, 1985 |
731d95fd-779f-4d94-b495-57b3b37f71c7 | Rowan v. First Bank of Boaz | 476 So. 2d 44 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 44 (1985)
Lewis Eugene ROWAN, et al.
v.
The FIRST BANK OF BOAZ, etc.
No. 83-1003.
Supreme Court of Alabama.
August 30, 1985.
*45 R. Ben Hogan III of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham and Robert H. King, Gadsden, for appellants.
Robert W. Hanson, Albertville, for appellee.
ALMON, Justice.
This is an appeal by permission, Rule 5(c), A.R.A.P., from an order denying class certification under Rule 23, A.R.Civ.P.
Rowan learned of this discrepancy when he paid his installment loan before the date of its maturity. Based on the amount of interest he had actually paid, Rowan was due a $303.61 refund on his tax returns over a three-year period. After discussing this matter with Mr. H. Ned Bender, Chairman of the Board, the bank had its accountant file an amendment to Rowan's 1981 federal tax return.
If the trial court applies the relevant criteria in denying class certification, the denial can only be reversed for abuse of discretion. Duncan v. State of Tennessee, 84 F.R.D. 21 (M.D.Tenn.1979); Paton v. LaPrade, 524 F.2d 862 (3rd Cir.1975); Monarch Asphalt Sales Co., Inc. v. Wilshire Oil Company of Texas, 511 F.2d 1073 (10th Cir.1975); Huff v. N.D. Cass *46 Company of Alabama, 468 F.2d 172 (5th Cir.1972). Federal authorities are persuasive when interpreting the Alabama Rules of Civil Procedure. First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So. 2d 727 (Ala.1981).
Certification of class actions is controlled by Rule 23, A.R.Civ.P., which provides in part:
All of the above prerequisites must be satisfied before consideration of the additional criteria set out in (b) of Rule 23. Huff v. N.D. Cass Company of Alabama, 468 F.2d 172 (5th Cir.1972). The proponent of the class action status bears the burden of proof as to each of the above prerequisities. Duncan v. State of Tennessee, supra.
Certification was sought by Rowan as to the following class:
After conducting an evidentiary hearing on the motion and reviewing the pleadings, interrogatories, depositions, and the brief filed by Rowan, the trial court denied the motion to certify the class. The trial court stated that Rowan's claims were not typical or similar to those of the proposed plaintiff class.
In addition to not meeting requirements of Rule 23(a)(3), the Bank asserts that Rowan has failed to meet the requirements of Rule 23(a)(1). In response to questions during the deposition, Mr. Bender stated that the Bank usually has between 1800 and 1950 installment loan customers at any one time. When asked what percentage of these installment loan customers had prepaid their loan, Bender responded that he had no idea. There was no evidence of any kind before the trial court indicating the number of customers of the Bank that prepaid their installment loans. Thus Rowan failed to meet his burden of proof that "the class is so numerous that joinder of all the members is impracticable", as required by Rule 23(a)(1).
Based on the foregoing we hold that the trial court did not abuse its discretion in refusing to certify this action as a class action. The order is therefore affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur. | August 30, 1985 |
bc0284e1-c355-4f81-97f0-cb152b18c138 | Cordes v. Wooten | 476 So. 2d 89 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 89 (1985)
James CORDES and Dewey Hutson
v.
Richard WOOTEN.
83-1300.
Supreme Court of Alabama.
September 6, 1985.
*90 Juliet G. St. John of St. John & St. John, Cullman, for appellants.
Larry Waites of Dinsmore, Waites and Stovall, Birmingham, and Roy W. Williams, Jr., Cullman, for appellee.
MADDOX, Justice.
Plaintiff Richard Wooten,[1] while riding a motorcycle on Cullman County Road 18, collided with a hay rake being pulled by a tractor owned by co-defendant Dewey Hutson and driven by co-defendant James Cordes.
*91 The jury returned a verdict in favor of Wooten for $300,000. Both defendants appeal.
On appeal, they claim that they were entitled to a directed verdict, because:
In addition, defendant Hutson claims he was entitled to a directed verdict because Cordes was not his agent at the time of the accident.
Defendants also say they were entitled to a new trial because the verdict was against the great weight of the evidence.
We believe that the jury was authorized to find that defendant Cordes was Dewey Hutson's agent.
The facts regarding agency were in dispute. Cordes worked as a farmhand for both Dewey and Melvin Hutson. Hutson and Cordes argue that the evidence established that on the day in question Cordes was Melvin Hutson's agent. Wooten, on the other hand, contends that the evidence established that Cordes was moving the tractor and hay rake to Butler Field in order to rake hay for Dewey Hutson. Because the facts were in dispute, we must conclude that the question of agency was properly submitted to the jury.
The law states that a principal is liable for the acts of an agent done in the interest of and in the prosecution of the principal's business, if the agent is acting within the scope of his employment. Regional Agricultural Credit Corporation of Washington, D.C. v. Hendley, 251 Ala. 261, 37 So. 2d 97 (1948); Craft v. Koonce, 237 Ala. 552, 187 So. 730 (1939); Southern Railway Co. v. Wildman, 119 Ala. 565, 24 So. 764 (1898). To constitute agency, there must be a meeting of the minds of both the principal and the agent as to the scope of employment. Western Union Telegraph Co. v. Northcutt, 158 Ala. 539, 48 So. 553 (1908). The rule governing whether the question of agency shall be submitted to the jury is best set forth in Craft, supra, 237 Ala. at 554, 187 So. at 731, as follows:
It is elementary that the test of agency is the right of control, whether exercised or not, and that is a question for the trier of fact if the evidence is in dispute. Hatton v. Chem-Haulers, Inc., 393 So. 2d 950 (Ala.1980).
We think not. Alabama's Code does exempt "implements of husbandry" from the provisions of law applicable to other vehicles.
Code 1975, § 32-9-22, provides as follows:
Although "implements of husbandry" are exempt from the width restrictions, it is not a blanket exemption which would apply regardless of the manner in which a motor vehicle was operated on the public highways. The law requires that travelers on public highways, whether in an automobile or on a tractor, use the highway in such a way that they will not injure other travelers. Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So. 2d 345 (1955).
The evidence tends to show that County Road 18 is approximately eighteen feet wide at the scene of the accident, and that the tractor with the hay rake attached is a total of ten feet wide with three feet of the hay rake protruding from the left side of the tractor. The evidence was conflicting as to how much room was available on the other side of the road for oncoming traffic. Cordes testified that the right wheels of the tractor were along the right edge of the pavement. Other witnesses testified, however, that the vehicle was in the center of the road.
Because of this conflict in the evidence, we cannot agree with the defendants, therefore, that the only evidence of negligence was the width of the hay rake. The jury could have concluded that the defendants were negligent in the manner in which they operated the equipment, even though it was an "exempt" item.
We think not.
Defendants contend in their brief that plaintiff "admitted that he would expect to see [a hay rake] on this road," that "the presence of the hay rake was no surprise," that "he knew it was dangerous to be riding the motorcycle," that "he knew he was coming into a curve," that "he had enough room to get by the hay rake," that "he could have missed this hay rake if he had been travelling slower," and that "[t]wo witnesses testified that plaintiff admitted at the scene that the accident was his fault."
We have examined the specific testimony of the plaintiff to which the defendants refer and we are of the opinion that there was sufficient testimony for the jury to conclude that the plaintiff was not guilty of contributing to his injuries. For example, he testified, in substance, that although he was not surprised to see a farm vehicle on the road, he was obeying all traffic laws and that he slowed down to 30 m.p.h. when he entered the curve, but that there would have been no way to avoid the rake without running off the road.
Plaintiff did make what the jury could have determined was an admission of fault:
In context, this statement could have been taken by the jury to mean that he was blaming himself for getting hurt. One of the defendants' witnesses testified that the essence of the plaintiff's statement made at the scene when he was hurting was: "I shouldn't have been on the motorcycle." The jury apparently did not find that the plaintiff's conduct and statements showed him to be guilty of contributory negligence.
*93 We hold, therefore, that the trial court did not err in refusing to grant a directed verdict or new trial based on the claim of contributory negligence.
We think not.
Defendants correctly cite the applicable rule in their brief:
They claim that this is the kind of case referred to in Casey, contending that the undisputed evidence is that at the time of the accident, Cordes was the agent of Melvin Hutson. They contend that Melvin was the principal in this case and should have been added as a party defendant, and that plaintiff himself recognized this fact and attempted to add Melvin Hutson on August 1, 1983, but the statute of limitations had run at that time, and that the trial court properly denied the addition. They argue:
As we have pointed out, defendants presented each of these claims to the jury and the jury refused to respond in defendants' favor. The law, however, is well settled in this area.
A jury verdict is presumed to be correct, and that presumption is strengthened where the trial court denies a motion for new trial. Merrill v. Badgett, 385 So. 2d 1316 (Ala.Civ.App.), cert. denied, 385 So. 2d 1319 (Ala.1980). "Granting or refusing a motion for new trial rests within the sound discretion of the trial court; the exercise of that discretion carries with it a presumption of correctness which will not be disturbed by this court unless some legal right was abused and the record plainly and palpably shows the trial court was in error." Hill v. Cherry, 379 So. 2d 590 (Ala.1980). We find no abuse of discretion by the trial court in denying a new trial or a judgment notwithstanding the verdict.
The judgment of the trial court is due to be, and is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] While Richard Wooten's wife Linda was originally a party plaintiff, the lower court's verdict was in favor of Richard Wooten alone. | September 6, 1985 |
8d68be54-6ea6-4e8b-9f85-4827116ffeca | Ortell v. Spencer Companies, Inc. | 477 So. 2d 299 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 299 (1985)
Renee Elizabeth ORTELL
v.
SPENCER COMPANIES, INC.
84-51.
Supreme Court of Alabama.
September 13, 1985.
Rehearing Denied September 27, 1985.
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
William T. Mills II and Stanley K. Smith of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee.
PER CURIAM.
This is an appeal from a summary judgment entered against Renee Ortell and in favor of Spencer Companies, Inc. We affirm.
On March 24, 1983, at approximately 7:15 A.M., Renee Ortell entered the Happy Times Convenience Store on Jefferson Avenue Southwest in Birmingham, to purchase a pack of cigarettes. Inside the store, a robbery was in progress. A young male, armed with a pistol, took her wallet and forced her into the restroom, where he had earlier led the female manager of the store. Subsequently, the robber returned to the restroom and forced Ortell to perform deviant sex acts.
Ortell filed suit against Happy Times' owner, the Spencer Companies, alleging negligence and wantonness in its failure to maintain any safety security measures for the protection of business invitees from foreseeable criminal activity. The trial court granted defendant's motion for summary judgment. Ortell appeals.
The inquiry necessary for our resolution is whether, under the facts of this case, Spencer Companies was under a duty to protect Ortell from criminal attack.
This Court has recognized that a duty may be imposed on a storeowner to take reasonable precautions to protect invitees from criminal attack in the exceptional case where the storeowner possessed actual or constructive knowledge that criminal activity which could endanger an invitee was a probability. Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala.1984). Nevertheless, we have found that "it is difficult to impose liability on one person for an intentional criminal act committed by a third person." CIE Service Corp. v. Smith, 460 So. 2d 1244, 1247 (Ala.1984). This Court has not yet decided a case whose facts command the imposition of such a duty. See, e.g., Henley, supra; Stripling v. Armbrester, 451 So. 2d 789 (Ala.1984); Latham v. Aronov Realty Co., 435 So. 2d 209 (Ala.1983); Berdeaux v. City National Bank of Birmingham, 424 So. 2d 594 (Ala. 1982); Parham v. Taylor, 402 So. 2d 884 (Ala.1981); City of Mobile v. Largay, 346 So. 2d 393 (Ala.1977).
*300 The plaintiff submitted evidence that the Birmingham police records for the years 1981-1983 show that the following instances occurred in the two-block area surrounding this store:
Also, the Birmingham police records establish the criminal activity on the premises for the same period as follows:
The occurrences of this three-year period established by the plaintiff did not alone impose a duty upon this defendant to protect this plaintiff from the crime for which she suffered at the hands of the third-party criminal.
After a careful review of all the evidence presented in this case, we find no evidence to support the theory that Spencer Companies had knowledge that criminal activity of the same nature that harmed Ortell was a probability. Because Ortell failed to produce evidence establishing actual or constructive knowledge on the part of the defendant, summary judgment was properly entered in its behalf.
The judgment of the circuit court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur. | September 13, 1985 |
27c70263-0623-4b41-924f-52d000bfc9e2 | Royal Indemnity Company v. Pearson | 246 So. 2d 652 | N/A | Alabama | Alabama Supreme Court | 246 So. 2d 652 (1971)
ROYAL INDEMNITY COMPANY
v.
Lavetta R. PEARSON.
1 Div. 540.
Supreme Court of Alabama.
March 25, 1971.
*653 John Douglas Richardson, Mobile, for appellant.
Cunningham, Bounds & Byrd, Mobile, for appellee.
LAWSON, Justice.
This is an appeal from a judgment rendered in a garnishment proceeding.§ 1029, Title 7, Code 1940.
Lavetta Pearson sustained personal injuries when an automobile she was operating collided with a truck being driven by one Cleveland Moorer.
Subsequently a suit was filed by Lavetta Pearson to recover damages for the injuries she alleged she sustained in the accident. Named as defendants in that suit were The Merchants National Bank of Mobile, hereinafter referred to as the Bank; S. M. Adams, Inc., a corporation, hereinafter referred to as the Adams Company; Roche L. Smith and Cleveland Moorer. The complaint alleged, in effect, that Cleveland Moorer at the time of the accident was operating the truck as the agent, servant or employee of the other named defendants. That suit came on for trial before the court and a jury. At the conclusion of the plaintiff's evidence, the trial court granted a motion to exclude the evidence as to the defendant, the Adams Company, and at the conclusion of all the evidence the trial court, on request, gave the general affirmative charge with hypothesis in favor of the defendant Bank. The jury returned a verdict in favor of the plaintiff, Lavetta Pearson, against the defendants Roche L. Smith and Cleveland Moorer.
The judgment against Smith and Moorer not being satisfied, Lavetta Pearson caused a writ of garnishment to issue against Royal Indemnity Company, hereinafter sometimes referred to as Royal, which had issued a "Comprehensive Auto Liability Policy" to the Bank, which policy of insurance was in force on the day of the accident.
*654 Royal filed an answer to the writ of garnishment wherein it alleged, in effect, that it was not indebted to either Smith or Moorer.§ 1011, Title 7, Code 1940. Royal's answer concluded: "Said Garnishee reserves further the right to amend this answer, by leave of Court." Thereafter, the plaintiff, Lavetta Pearson, filed a contest of the answer.§ 1020, Title 7, Code 1940. Royal filed a motion to strike the contest of the answer, which motion was denied. Thereupon Royal filed an instrument captioned "Additional Answer of Garnishee."
The issues were made up in the manner indicated. The garnishment proceeding was heard and submitted on stipulations of fact, depositions and oral testimony taken before the court without a jury.
Prior to submission Royal requested a special finding of the facts as provided by § 262, Title 7, Code 1940.
Following the trial and the submission, the trial court made a special "Findings of Fact" and rendered a judgment in favor of Lavetta Pearson and against the garnishee, Royal, in the sum of $20,000, together with interest and costs.
Royal has appealed from that judgment to this court.
The right of Lavetta Pearson to proceed against Royal by way of garnishment was not questioned in the trial court and is not questioned here. See Macey v. Crum, 249 Ala. 249, 30 So. 2d 666; Mattox v. Pennsylvania Threshermen and Farmers' Mut. Cas. Ins. Co., 276 Ala. 172, 160 So. 2d 458; Southern Guaranty Ins. Co. v. Jones, 279 Ala. 577, 188 So. 2d 537. Nor are we confronted on this appeal with any question concerning the pleadings or the manner in which the parties arrived at the issues.
Roche L. Smith at the time of the accident, September 23, 1965, was engaged in the business of cutting and hauling pulpwood from the woods to the paper mills. He used several trucks in his operation and employed several persons, including Cleveland Moorer.
The Adams Company was a pulpwood dealer at the time of the accident. It seems to have acted as the middleman between the paper mills and truck operators, such as Smith. It bought the wood and paid persons like Smith to cut and haul it. Charles Adams, the president of the Adams Company, knew Smith well. Smith had hauled pulpwood for the Adams Company for several years prior to the accident.
Charles Adams was well known to Theodore M. Reinhart, a vice-president of the Bank in charge of the Bank's installment loan department. The more pulpwood trucks in operation, the more money Adams' company made. The Bank financed the purchase of trucks by persons who operated them in connection with the Adams Company. When such an operator defaulted on his payments to the Bank, Adams assisted the Bank in repossessing the truck, in selling it to another person, or in renting it. Adams was not paid by the Bank for his services. When asked if Adams received any "benefit or reward" for the services rendered the Bank, Reinhart replied: "Well that's rather a hard question to answer. The mutual agreement was that we handled his paper and he helped us out in cases like this." Reinhart talked with Adams at least once or twice a week.
Adams and Reinhart were both familiar with the truck which was involved in the accident. It was purchased new in 1963 by one Ray Matheny, who hauled pulpwood in it for Adams. The purchase was financed by the Bank. Matheny defaulted in his payments, so the Bank repossessed the truck. In May of 1964 Adams, on behalf of the Bank, negotiated a sale of the truck to N. A. Williams, who executed a chattel mortgage on the truck to the Bank. The truck was repossessed by the Bank in January of 1965. Reinhart asked Adams to dispose of the truck to the best *655 advantage of the Bank. Adams, on behalf of the Bank, rented the truck to Ray Matheny, the original purchaser, who used it for an uncertain period of time in 1965 to haul pulpwood for Adams. Matheny abandoned the truck near the premises of the Adams Company and Charles Adams repossessed it for the Bank. Ultimately, Adams on behalf of Matheny paid the Bank the sum of $360 for the use of the truck, which was credited on the mortgage debt owed the Bank by Williams.
In September of 1965 Smith had a conversation with Adams in the latter's office. Smith told Adams he needed another truck. Smith and Adams are not in agreement as to everything that was said in that conversation. But they both testified, in effect, that Adams told Smith, as Adams testified: "* * * that we had a truck that was on the corner of Telegraph Road and Paper Mill Road and for him to look at the truck and see if he thought that truck [truck involved in accident] would be satisfactory. * * and I told him to take the truck, to take it on to his house where he kept his other trucks." After that conversation, Smith instructed Cleveland Moorer to get the truck and have it checked by a mechanic. Later Moorer told Smith the truck was ready to go to the woods and drove the truck to his home and then began to use it in hauling pulpwood from the woods to the mills.
Adams testified that he told Smith in their conversation that if Smith hauled wood in the truck "that he was buying the truck." But Adams did not testify that he had ever discussed with Smith the price which the Bank wanted for the truck or the terms of payment.
Smith's testimony is to the effect that Adams did not tell him that if he hauled wood in the truck "he was buying it." He testified that he had the truck on a trial basis; that in their conversation Adams told him that if he decided to buy the truck to go to see Mr. Reinhart in that the truck belonged to the Bank; that he talked with Adams on Friday, September 17, 1965, and took possession the next day; that the truck was driven to the woods by Moorer on Monday, September 20th; that the truck was used in hauling wood two or three days before the accident on Wednesday, September 22, 1965, although it was "stuck in the woods one day"; that the truck performed very well, making about three deliveries of wood before the accident, but "it lacked a lot of being a new truck." Smith further testified that he did not tell Adams before the accident that he was going to buy the truck; that Adams didn't know he was buying the truck until Smith showed Adams a bill of sale to the truck which he obtained from Reinhart a day or two after the accident.
Smith further testified that prior to the accident he had not discussed with anyone the price of the truck or the terms of a purchase and had not agreed with anyone to purchase the truck.
Adams testified that his conversation with Smith relative to the truck occurred on September 10, 1965, not on September 17, 1965; that Smith got the truck that day or the next and used it to haul pulpwood on September 13th, 15th, 16th, 17th and 21st of 1965 and on the 22nd, the day of the accident. Adams' testimony as to the days on which the truck was used by Smith was based on the records of the Adams Company that a truck with license tag No. 1388 hauled wood on those days, but it is admitted that the license tag on the truck which was involved in the accident bore the number 5H2-1387.
Both Adams and Reinhart testified that Adams had the authority from the Bank to allow a prospective purchaser to drive the truck. Reinhart did not restrict Adams as to the use to which a prospective purchaser could put the truck. But he did not expressly authorize Adams to permit Smith or his employees "to work this truck by going out into the woods and hauling paperwood."
*656 At the time Adams told Smith to get the truck and try it out, Adams knew that Smith did not haul pulpwood himself but used employed drivers, including Cleveland Moorer. Adams placed no restrictions on Smith's use of the truck nor did he place any time limit as to the trial period.
In its "Findings of Fact" the trial court found the facts to be substantially as summarized above except it resolved the conflict between Adams and Smith in Smith's favor as to when Smith obtained possession of the truck through his employee, Moorer, and as to the length of time Smith used the truck prior to the accident. As to these matters the trial court found: "Smith had Moorer, one of his regular drivers, pick up the truck on Saturday, September 18, 1965. Smith used the truck with Moorer driving it to haul pulpwood for two or three days before it was involved in this accident." The trial court made no reference in its "Findings of Fact" to Adams' testimony that he told Smith prior to the time Smith got possession of the truck that if he (Smith) "took the truck and started to haul wood with it, that he was buying the truck." While Smith did not in so many words say that Adams did not make that statement to him, his testimony concerning his conversation with Adams would justify a finding that no such statement was made by Adams.
Although the action of the trial court in making a special finding of the facts as provided in § 262, Title 7, Code 1940, does not prevent this court from reviewing such a finding, nevertheless, in our review we indulge the usual presumption in favor of a trial court's finding of facts based on oral testimony given by witnesses in its presence. It has been said in a case where the trial court made a special finding of facts, as in this case, that this rule of review is founded upon sound principle applicable alike to general or special findings.Sovereign Camp, W. O. W. v. Hubbard, 217 Ala. 431, 116 So. 163. This court has said on several occasions that a finding of facts made by a trial court when testimony is taken orally, or partly so, before the court will not be disturbed on appeal unless palpably wrong.Mitchell v. Kinney, 242 Ala. 196, 5 So. 2d 788; Aiken v. Barnes, 247 Ala. 657, 25 So. 2d 849; Ingalls v. Ingalls, 257 Ala. 521, 59 So. 2d 898.
We have read the evidence with much care and agree with the trial court's findings in respect to the conflict in the testimony of Adams and Smith. Certainly we cannot say that the trial court's findings in that regard were palpably wrong when it was in a position to observe the witnesses as they testified.
One of the basic issues for determination in this case is who was the owner of the truck Cleveland Moorer was operating at the time of the accident in which Lavetta Pearson was injured.
The trial court concluded from its "Findings of Fact" that:
Royal, the appellant, if we correctly understand its brief, does not question the fact that the Bank acquired legal title to the truck when it repossessed it in January of 1965 under the terms of a chattel mortgage which the Bank held on the truck, nor do we understand the Bank to take the position that it was not the owner of the truck at the time it came into the possession of Smith in September of 1965. Nor do we understand Royal to take the position that the truck was not covered by the insurance policy here involved simply because the truck was not described in that policy.
*657 But Royal does strenuously insist that the trial court erred in concluding that there was no sale or contract of sale relating to the truck between Smith and the Bank, or its agents, prior to the accident. In support of its argument Royal seems to place much emphasis upon Adams' testimony to the effect that he told Smith that if he hauled wood in the truck he was buying it. As we have indicated, Smith's testimony tends to deny that such a statement was made by Adams and the trial court, in our opinion, was fully justified in making no reference to it in its "Findings of Fact."
This court has said that while actual delivery is of great importance in determining whether there was an intention to pass title, it is by no means conclusive on the question of the passing of title. Hamm v. Continental Gin Company, 276 Ala. 611, 165 So. 2d 392. See State v. Mobile Stove & Pulley Mfg. Co., 255 Ala. 617, 52 So. 2d 693.
Under the Uniform Sales Act (Code 1940, Title 57, § 1 et seq.), which has been repealed but was in effect at the time of the transactions here involved, the passing of title between a seller and a buyer depends upon the intention of the parties.Hyatt v. Reynolds, 245 Ala. 411, 17 So. 2d 413; Hamm v. Continental Gin Co., supra.
In our opinion, the facts as found by the trial court, which are fully supported by the evidence, establish that Smith had the truck in his possession for the purpose of trying it out to see if he wanted to purchase it and at the time of the accident he had not agreed to purchase it. We do not understand how Reinhart could have considered the truck sold when neither the sales price nor the manner of payment had been determined. Likewise, Smith testified he did not think he had bought the truck until after he talked with Reinhart, which was after the accident, and at which time the sales price and manner in which it was to be paid was agreed upon and Smith was given a bill of sale.
Prior to the accident Smith had contacted no one with the Bank relative to purchasing the truck. He had not communicated to the Bank that he desired to buy the truck. He had not communicated to Adams that he desired to purchase the truck. He had not discussed the sales price of the truck with the Bank or Adams. He had not discussed the terms of the sale with the Bank or with Adams. Smith had not, under the finding of the trial court, retained the vehicle for an unreasonable length of time.
A sale could have taken place without delivery or payment provided those essential elements had been agreed upon by both parties so that nothing remained to be done but a compliance with the agreement. But in this case one of the essential elements of a sale, payment, had not even been discussed by the prospective purchaser and the prospective seller at the time of the accident.
Under the facts and circumstances of this case, we entertain the view that since the terms of sale had not been considered or discussed prior to the accident, the trial court was justified in holding that there was no sale. We hold that title to the truck was in the Bank on the day of the accident.
Having determined that title to the truck was in the Bank on September 22, 1965, the date of the accident, it is necessary to decide which of the various coverage provisions of the insurance policy, if any, were applicable at the time the truck was involved in the accident.
We quote some pertinent provisions of the policy:
Lavetta Pearson took the position in the trial court that at the time of the accident Moorer, as Smith's agent, was driving the truck with the permission of the Bank and consequently Moorer and Smith were afforded coverage under the so-called omnibus clause of the insurance policy issued by Royal to the Bank. Royal, of course, took the contrary position.
On this question the trial court concluded from the evidence that "Smith and Moorer, as a permittee of a permittee, had permission of the named insured, the Bank, to operate the vehicle and, therefore, each was an `insured' within the Omnibus Clause of the policy."
Where, as here, only "permission" is required in the omnibus clause, we have followed the general rule to the effect that "permission" is sufficient to provide coverage to the user if the facts justify a finding that either express or implied permission has been granted by the named insured. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Robinson, 269 Ala. 346, 113 So. 2d 140; Harrison v. Densmore, 279 Ala. 190, 183 So. 2d 787; American Mutual Liability Ins. Co. v. Milwaukee Ins. Co. of Milwaukee, 283 Ala. 414, 218 So. 2d 129; Pettis v. State Farm Mut. Auto. Ins. Co., 286 Ala. 344, 239 So. 2d 772. But where the words "express permission" are used in the omnibus clause, the burden is on the user to establish that he was driving with the express permission of the named insured.Alabama Farm Bureau Mut. Cas. Ins. Co. v. Government Employees Ins. Co., 286 Ala. 414, 240 So. 2d 664; Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mattison, 286 Ala. 541, 243 So. 2d 490.
The evidence shows beyond peradventure that Smith had the express permission of the Bank to try out the truck before making a decision as to whether he wanted to buy it. He got that permission from Adams who we think the evidence clearly shows was an agent for the Bank in the transaction with Smith, with full authority to turn the truck over to Smith for the purpose stated above.
Adams' authority clearly extended to the point of authorizing Smith to permit one of his employees to do the actual testing of the truck. The Bank had placed no limitations on Adams in regard to his authority to dispose of the truck to the Bank's best advantage. If Adams did not expressly authorize Smith to have one of his employees test the truck, there is evidence more than ample to show that Smith had Adams' implied permission to do so. Adams testified to the effect that Smith did *659 not drive pulpwood trucks. When he authorized Smith to try out the truck, Adams knew the testing would be done by one of Smith's employees.
As shown above, the trial court found from the evidence that Smith and Moorer had permission of the Bank to operate the truck, but the court did not expressly conclude or find that such permission extended to the date of the accident and the manner in which the truck was being used at the time of the accident. But such is the effect of the court's action in holding that Smith and Moorer were "each an `insured' within the Omnibus Clause of the policy" and in rendering a judgment in favor of Lavetta Pearson against Royal, the Bank's insurer.
We are confronted with the question as to whether the evidence supports such a conclusion, that is, that Smith had permission of the Bank to use the truck to haul pulpwood at the time of the accident. The evidence does not show that Smith had the express permission of the Bank through Adams or anyone else to so use the truck.
So the question arises as to whether the evidence supports a conclusion that Smith had the implied permission of the Bank to haul pulpwood from the woods to the mills at the time of the accident.
We think this question must be answered in the affirmative. The truck was specially equipped to haul pulpwood. It had been used for that purpose by at least two other persons over a period of many months. Smith was familiar with the truck to some extent but not with its capability to perform adequately for the purpose for which he needed it. He was not merely interested in whether the motor would run or whether it could be safely driven around a city block. After having been put to the rough use, the wear and tear, to which a pulpwood truck is necessarily subjected, for many months, it is only reasonable to infer that Smith wanted to know if the body of the truck and the special equipment thereon was still capable of hauling pulpwood from the woods to the mills and it is only reasonable to infer that Adams, being peculiarly familiar with the pulpwood business, expected Smith to test the truck from the woods to the mills. Adams was in touch with Smith. He knew Smith was using the truck to haul pulpwood. He did not try to stop him. The trial court apparently gave no credence to Adams' testimony to the effect that he told Smith that if he used the truck to haul pulpwood he had bought it. Under the singular facts and circumstances of this case, we feel that Smith had the implied permission of the Bank through Adams to use the truck to haul pulpwood at the time of the accident.
At the time of the accident, there was attached to the insurance policy which Royal had issued to the Bank a "Repossessed Automobiles" endorsement, which in pertinent parts provided:
In the "Additional Answer of Garnishee," Royal, after setting out the provisions of the endorsement just quoted above, alleged:
As to this defense interposed by Royal, the trial court held: "E. There is no necessity of interpreting the `Repossessed Automobiles' Endorsement dated 4/29/65 attached to the policy under the circumstances of this case."
There was no contention made in the trial court that the truck which Cleveland Moorer was operating at the time of the accident had not been repossessed by the Bank in January of 1965. The accident occurred on September 22, 1965. In the briefs filed by the parties to this appeal it is conceded that the truck had been repossessed by the Bank in January of 1965.
The record does not disclose why the trial court held that there was no necessity of interpreting the "Repossessed Automobiles" endorsement in this case. No doubt it was for the reason that the trial court considered that such endorsement had no application to a motor vehicle which had been repossessed approximately nine months prior to the accident and had become an "owned automobile," as those words are defined in the policy of insurance, to such an extent that it had been rented out by the Bank for some time following repossession and prior to the accident. The trial court was confronted with the task of deciding whether the provisions of the policy which relate to "owned automobiles" or the provisions of the "Repossessed Automobiles" endorsement should determine the question of coverage of the truck at the time of the accident under the facts and circumstances of this case. The effect of the trial court's holding that there was no necessity to interpret the "Repossessed Automobiles" endorsement was tantamount to a holding that the provisions of that endorsement have no application to the facts of this case. We agree. In so holding the trial court merely followed the rule that ambiguous insurance policies are construed against the insurer and in favor of the insured. Trans-Continental Mutual Ins. Co. v. Harrison, 262 Ala. 373, 78 So. 2d 917.
Royal took the position in the trial court that it should not be required to pay the judgment in favor of Lavetta Pearson and against Smith and Moorer, even if they be considered as additional insured under the omnibus clause of the policy, because Smith and Moorer both breached the following provisions of the policy which appear under the heading "Conditions":
In pertinent part Condition 12 of the policy here involved reads:
In its brief Royal points out that Bill Boynton, its claims manager, testified that *661 neither Smith nor Moorer forwarded "any suit papers or notice of the accident" to Royal, nor did either of them call upon Royal to defend them in the suit brought by Lavetta Pearson, although the Adams Company did make such a request.
Royal is correct. Boynton did testify as shown above. But Boynton also testified, in substance, that the named insured, the Bank, notified Royal's agent in Mobile of the accident by sending to it a copy of the complaint which was duly transmitted to Boynton, along with a "lost notice" or "accident report form"; that when he received a copy of the suit papers he determined that Smith and Moorer had been sued as well as the Bank; that Royal never took the position that the Bank had not complied with Conditions 9 and 10 of the policy; that Royal, through an independent adjuster, made an investigation of the accident, contacting and obtaining statements from Charles Adams, president of Adams Company, and Smith and Moorer; that Royal's attorneys notified the Bank, Charles Adams, Smith and Moorer that Royal had determined that the Bank was the only defendant in the Pearson case which it would defend, although the Adams Company had requested a defense by Royal; that if Smith and Moorer had requested a defense by Royal the request would have been denied; that, in his opinion, "our attorney" notified Smith and Moorer that the policy issued by Royal to the Bank afforded no coverage to either of them; that after the decision had been made not to defend Smith and Moorer "he didn't have anything to do with what defense they brought up or any obligations that they might have made; that he didn't believe that `this delay' hindered him in any way in his investigation;" that from the standpoint of the Bank he was able to do a good investigative job.
In regard to Royal's contention that it should not be required to pay the judgment against Smith and Moorer because of their failure to comply with Conditions 9 and 10 of the policy, the trial court found:
It is the settled law of this state that as between the named insured and the insurer, the failure of the named insured to give a reasonably timely notice of the accident or of the receipt of any demand, notice, summons or other process to the insurer will release the insurer from obligations to the named insured, although no prejudice may have resulted to the insurer, where notice of the accident and the forwarding of such papers are specially made a condition precedent to any action against the insurer. American Fire & Cas. Co. v. Tankersley, 20 Ala. 126, 116 So. 2d 579.
But we are concerned in this case with the failure of the additional insureds to comply with the provisions of Conditions 9 and 10 of the subject policy relative to giving of notice and the forwarding of papers to the insurer.
Counsel have not called to our attention any Alabama adjudication, and our research has disclosed none, which deals with the necessity of an additional insured to comply with provisions such as those contained in Conditions 9 and 10.
Counsel for appellee have called to our attention three cases decided by other courts. Of the cases cited, that of Indemnity *662 Insurance Co. of North America v. Forrest, 9 Cir., 44 F.2d 465, is nearest in point. In that case Indemnity relied in part on the defense that the additional insured failed to forthwith forward to Indemnity the process and pleadings which had been served on him. But there was testimony tending to prove that the process and pleadings served on the named insured had been promptly forwarded to Indemnity. This was held to be a sufficient compliance with the requirements of the policy in regard to the forwarding of process and pleadings to the insurer.
The other two cases cited in brief of appellee, although not directly in point, are supportive of the action of the trial court presently under consideration. See Jameson v. Farmers Mut. Auto. Ins. Co., Inc., 181 Kan. 120, 309 P.2d 394; Kuc v. Mill Owners Mut. Ins. Co., 7 Cir., 309 F.2d 728.
In Helvy v. Inland Mut. Ins. Co., 148 W.Va. 51, 132 S.E.2d 912, 917, it was said:
In National Surety Corp. v. Wells, 5 Cir., 287 F.2d 102, an automobile liability insurance policy contained a provision requiring notice of loss by the insured similar to that contained in the policy in the case at bar. The father of a sixteen-year-old high school student was the named insured. The automobile of the insured, while driven by his son with the consent of the insured, was involved in a collision which resulted in property damage and personal injury to persons who subsequently instituted actions against the insured and his son. The insured gave immediate notice of the accident to the insurer and it proceeded to investigate the case and in its investigation interviewed and obtained a written statement from the son. With respect to those facts, the opinion in that case contained this language:
See Knudson v. Anderson, 199 Minn. 479, 272 N.W. 376; MacClure v. Accident & Cas. Ins. Co. of Winterthur, Switzerland, 229 N.C. 305, 49 S.E.2d 742.
We are in accord with the holding of the cases cited above which in our opinion fully support the action of the trial court in holding, in effect, that Royal cannot avoid liability under the subject policy simply because Smith and Moorer did not comply with the provisions of Conditions 9 and 10 of the policy in view of the compliance with those provisions by the Bank, the named insured, and the subsequent interrogation by Royal's agents of Smith and Moorer.
There are cases from other jurisdictions which, under facts which we think are distinguishable from those in the case at bar, have come to a contrary conclusion. See Velkers v. Glen Falls Ins. Co., 93 N.J.Super. 501, 226 A.2d 448, aff'd, 98 N.J.Super. 166, 236 A.2d 408; American Southern Ins. Co. v. England, D.C., 260 F. Supp. 55, aff'd in part and reversed in part in England v. American Southern Ins. Co., 4 Cir., 380 F.2d 137.
*663 Royal contends that there can be no liability on its part because of the failure of Smith and Moorer to assist and cooperate with Royal with the defense of the former suit, as specified in Condition 11 of the policy, which we see no occasion to set out.
As to this contention the trial court found:
That finding by the trial court is supported by the evidence in every respect.
The "Additional Answer of Garnishee" filed by Royal contains averments designed to show that the verdict and judgment in favor of the Bank in the suit brought by Lavetta Pearson against the Bank, the Adams Company, Smith and Moorer "is res judicata on this Honorable Court."
The trial court held that the "verdict and judgment" in that case "is not res judicata of the issues involved in this proceeding."
A plea of res judicata should show that the parties are the same, the subject matter the same, and that the judgment was upon the merits. Yancey v. Denham, 211 Ala. 138, 99 So. 851.
We doubt that the so-called plea of res judicata set up in the "Additional Answer of Garnishee" meets those requirements. But we lay that question aside, for we are convinced that Royal did not meet the burden which was on it to show that the issues in the former suit were broad enough to cover the issues in this case. Bowman v. Bowman, 274 Ala. 498, 150 So. 2d 385; Yancey v. Denham, supra.
The issue involved in the former suit (Pearson v. The Bank et al.) was not the same as the issues involved in this garnishment action. The verdict in favor of the Bank decided that Moorer was not the agent of the Bank at the time of the accident. It did not decide that Moorer was using the truck without the permission of the Bank.Vezolles v. Home Indemnity Co., New York, D.C., 38 F. Supp. 455, aff'd Home Indemnity Co., New York v. Vezolles, 6 Cir., 128 F.2d 257. See Foote v. Grant, 56 Wash. 2d 630, 354 P.2d 893. Nor did the former suit decide that Moorer at the time of the accident was using the truck "for other business purposes" within the meaning of the exclusion clause in the "Repossessed Automobiles" endorsement, which clause we have quoted above. By making this last observation we do not want to be understood as withdrawing from the position which we have taken that the trial court did not err in saying that there was no need to interpret that endorsement under the circumstances of this case. Those "circumstances" showed that the truck was an "owned automobile" at the time of the collision in September of 1965. The repossession occurred in January of that year.
The judgment of the trial court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARDWOOD and MADDOX, JJ., concur. | March 25, 1971 |
d82fe3bc-324e-4b32-8d74-790872360bc0 | Rolling R Const., Inc. v. Dodd | 477 So. 2d 330 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 330 (1985)
ROLLING "R" CONSTRUCTION, INC.
v.
Ethel Hogg DODD.
84-674.
Supreme Court of Alabama.
September 20, 1985.
*331 Thomas L. Foster, Birmingham, for appellant.
Jesse P. Evans III and Douglas Corretti of Corretti & Newsom, Birmingham, for appellee.
BEATTY, Justice.
Plaintiff appeals from the trial court's entry of partial summary judgment in favor of defendant Ethel Hogg Dodd in a suit to set aside a conveyance of real property.
Plaintiff brought a prior suit against Ted Barnett for breach of contract. While that suit was pending, Barnett conveyed the property at issue in the present case to his wife, Sheryl Barnett, for "One Dollar and all other good and valuable consideration." The deed was executed on August 4, 1981, and was recorded on January 5, 1982.
On November 10, 1982, plaintiff obtained a judgment against Barnett for $17,035. A certificate of judgment was recorded in the probate judge's office. Plaintiff filed a notice of lis pendens on November 16, 1982, which stated that suit had been filed against Ted Barnett and that when a judgment was obtained it would constitute a lien on his property. The notice gave a legal description of the realty and provided: "Further, your plaintiff does allege that in his best belief, the Defendant, Ted Barnett, did fraudulently convey the above described property to his wife by deed recorded in Real 2148, Page 583, and said Plaintiff does intend to seek Equitable relief to set aside said conveyance." The lis pendens notice did not state that a judgment had already been obtained against Barnett, nor did it refer to Sheryl Barnett by name.
Two days after filing the notice of lis pendens, plaintiff filed the present suit against Ted and Sheryl Barnett to set aside the conveyance. On November 25, 1983, Sheryl and Ted conveyed the property to defendant Dodd by a deed which was recorded on November 30, 1983. The deed was signed by both Ted and Sheryl Barnett.
Dodd was added as a defendant in the present suit. Plaintiff and Dodd both filed motions for summary judgment. Plaintiff appeals from the denial of its motion for summary judgment and the granting of Dodd's motion for summary judgment on the ground that Dodd was a bona fide purchaser.
A bona fide purchaser is one who (1) purchases legal title, (2) in good faith, (3) for adequate consideration, (4) without *332 notice of any claim of interest in the property by any other party. First National Bank of Birmingham v. Culberson, 342 So. 2d 347, 350 (Ala.1977). Notice sufficient to preclude a bona fide purchase may be actual or constructive or may consist of knowledge of facts which would cause a reasonable person to make an inquiry which would reveal the interest of a third party. Hill v. Taylor, 285 Ala. 612, 614, 235 So. 2d 647, 649 (1970).
There is no evidence that defendant Dodd had actual notice of the interest claimed by plaintiff in the Barnett home at the time she purchased it. Plaintiff argues, however, that the notice of lis pendens and the certificate of judgment against Ted Barnett gave constructive notice of its claim.
A purchaser is chargeable with notice of what appears on the face of the instruments in his or her chain of title. Ball v. Vogtner, 362 So. 2d 894, 897 (Ala. 1978); Union Oil Co. v. Colglazier, 360 So. 2d 965, 969-70 (Ala.1978). However, an instrument outside a purchaser's chain of title does not give constructive notice. In Jefferson County v. Mosley, 284 Ala. 593, 226 So. 2d 652 (1969), the grantor conveyed a right of way to Jefferson County by deed executed October 18, 1945, and recorded April 2, 1952. The grantor conveyed the fee to Mosley by deed executed December 20, 1951, and recorded January 14, 1952. Mosley subsequently conveyed the property to third parties, who contended that they were bona fide purchasers without notice of Jefferson County's right of way. The court held that the deed from the grantor to Jefferson County did not give constructive notice because it was recorded after the recording of the deed from the grantor to Mosley, through whom the subsequent purchasers derived title. The Court quoted the following passage from American Law of Property, Vol. IV, § 17.21:
Since the subsequent purchasers had a duty to check the grantor indices under the name of the original grantor until the recording of the deed to Mosley, the later recording of the deed to Jefferson County from the same grantor was outside their chain of title.
In the present case, defendant Dodd had a duty to check the grantor indices under the name Ted Barnett until the date the deed from Ted to Sheryl was recorded. Thereafter, defendant Dodd was obliged to check the indices under the name Sheryl Barnett. Since the notice of lis pendens and the certificate of judgment were recorded after the deed from Ted to Sheryl and neither of the former documents named Sheryl, they were outside defendant Dodd's chain of title and would not serve as constructive notice of plaintiff's claim.
Plaintiff argues that Ted's joining in the deed conveying the property to defendant Dodd would cause a reasonable person to inquire about Ted's interest in the property and that such inquiry would have revealed the notice of lis pendens and the certificate of judgment against Ted. However, Ted's joining in the execution of the deed to Dodd was subsequent to Dodd's title examination and could not serve as constructive notice to her. The case of Creel v. Keith, 148 Ala. 233, 41 So. 780 (1906), cited by plaintiff, is inapplicable because the deed in that case which served as constructive notice by virtue of another party's joining as a grantor was not the deed to the defendant but was an earlier deed in the defendant's chain of title. In the present case, the deed in question was the deed to the third-party purchaser. *333 There is no evidence in the record that defendant Dodd had actual knowledge before the conveyance was completed that Ted claimed any interest in the property or that he intended to sign the deed to Dodd.
Plaintiff also contends that defendant Dodd was put on notice by the prior conveyance from Ted and Sheryl to Sheryl for "One Dollar and all other good and valuable consideration." In McKee v. West, 141 Ala. 531, 37 So. 740 (1904), the Court held that a recitation of consideration of "love and affection" in a deed from a mother to her two daughters was not sufficient, absent knowledge of other facts and circumstances, to put a subsequent purchaser on notice that the conveyance was fraudulent. In the present case, there is no evidence that defendant Dodd had knowledge of any facts or circumstances which should have caused her to inquire about the consideration for the conveyance to Sheryl.
Finally, plaintiff maintains that its filing suit against Ted and Sheryl to set aside the conveyance to Sheryl was constructive notice to the world of its interest in the property. But that common-law doctrine of lis pendens has been modified by statute. Lee v. Macon County Bank, 233 Ala. 522, 528, 172 So. 662, 669 (1937). The statutory notice must be filed in order for the pending suit to serve as constructive notice to the purchasers. Macke v. Scaccia, 222 Ala. 359, 361, 132 So. 880, 881 (1931). Although there was a lis pendens notice filed, it did not refer to Sheryl Barnett and, therefore, as we have already found, that notice was outside defendant Dodd's chain of title.
Defendant Dodd is a bona fide purchaser. Let the trial court's entry of summary judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES and ADAMS, JJ., concur. | September 20, 1985 |
3cbf18dd-2ce0-44d6-8ba4-c1e81e49d2c8 | Wells v. Clowers Const. Co. | 476 So. 2d 105 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 105 (1985)
Robert WELLS and Commercial Union Assurance Companies, Inc.
v.
CLOWERS CONSTRUCTION COMPANY, a Corporation; Dennis Clowers Realty, Inc., a Corporation; and Dennis Clowers.
83-1296.
Supreme Court of Alabama.
September 13, 1985.
R. Stephen Griffis and Charles M. Thompson of Thompson, Griffis & Brunson, Birmingham, for appellants.
J.R. Brooks of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
*106 PER CURIAM.
This case concerns a fire that caused damage to a house in Huntsville, Alabama, on January 15, 1982. Commercial Union Assurance Companies, Inc., as subrogee to owner Robert Wells, brought an action against Clowers Construction Company, Dennis Clowers Realty, Inc., and Dennis Clowers in his individual capacity, for negligent construction of a fireplace. Plaintiffs appeal from a summary judgment in favor of the defendants. We affirm.
The issue for review is whether the trial court erred by holding defendants entitled to judgment as a matter of law because there was no genuine issue of material fact and no actionable conduct on the part of the defendants.
The house that burned was built by defendant Dennis Clowers Realty, Inc., in 1975. In the midst of construction of the house, so as to comply with the request of a prospective purchaser, defendant Dennis Clowers Realty, Inc., put in a fireplace. Defendant had no problem fulfilling the buyer's wishes, because the plans of the house allowed for a "fireplace section."
When the prospective purchaser could not muster the financing necessary to complete the purchase, another couple, Mr. and Mrs. Rush, bought and moved into the house. They made no complaints regarding the fireplace during their stay in the house. Later, the house was sold by the Rush family to John Hornbeak. He, likewise, made no complaints regarding the fireplace. Hornbeak sold the house to plaintiff Wells in August 1980.
A year after moving in, so that he might make more use of his fireplace and thereby reduce his utility bills, Wells contracted with Scott Energy Center, Inc., to install a wood burning stove into the fireplace. Modifications to the fireplace were made so that the stove could operate. Although the stove was installed in the winter of 1980-81, it was not used on a regular basis until the following fall.
On January 15, 1982, the house was damaged by fire; the origin of the blaze was apparently in or near the chimney of the fireplace. This suit for recovery for property damage followed.
Plaintiff's complaint contained counts alleging negligent construction and violation of the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). The latter count is inapplicable as a matter of law. Once affixed to a house, a fireplace becomes as much a part of that house as the four walls, and a house cannot be classified as a "product" for purposes of the AEMLD. See Coburn v. Lenox Homes, Inc., 173 Conn. 567, 572-73, 378 A.2d 599, 601-02 (1977). Our inquiry is thus limited to whether a builder of a home is liable for damages to a buyer with whom he is not in privity of contract.
This precise issue has been addressed in the case of Wooldridge v. Rowe, 477 So. 2d 296 (Ala.1985). In that case also, subsequent purchasers of a house were alleging that the negligent construction of a fireplace had caused property damage to the house. In presenting the issue on appeal, the Wooldridges stated that there was no privity of contract between themselves and the defendant builder. In the absence of this privity, this Court held that the doctrine of caveat emptor would apply and the Wooldridges could not recover for the damage to the house. Wooldridge, supra.
The same lack of privity is present in this case. The plaintiff did not purchase the house from the defendant builder and was, in fact, the third purchaser of the house. Therefore, the doctrine of caveat emptor applies. Wooldridge, supra; see also, Ray v. Montgomery, 399 So. 2d 230, 233 (Ala. 1980). The grant of summary judgment was appropriate, and the judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
JONES, J., concurs in the result. | September 13, 1985 |
3392778d-48bf-453b-bb24-cc8445e3a8c9 | Ikner v. Miller | 477 So. 2d 387 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 387 (1985)
Clinton M. IKNER, Jr.
v.
Linda MILLER and James Robert Peters.
84-471.
Supreme Court of Alabama.
October 4, 1985.
*388 W. Gregory Hughes, Mobile, for appellant.
Stephen M. Gudac and Delano J. Palughi, Mobile, for appellees.
FAULKNER, Justice.
This case arose out of the collision of two motor vehicles. Linda Miller and James Robert Peters brought an action for negligence and wantonness against Clinton Ikner. The parties waived their right to a jury trial. The court found for the plaintiffs on the wantonness count. It awarded Miller $50,000.00 and Peters $7,500.00.
Miller and Ikner, who were employed at the Scott Paper Company in Mobile, dated for about two and a half years prior to October 1979. When their romantic relationship ended they did not part company on amicable terms. Miller subsequently began dating Peters. On the morning of February 24, 1980, Miller and Peters went to the beach in Miller's car and while at the beach they "had a few beers." Around two o'clock that afternoon they left the beach so that Miller could report to work at 3:00. Peters drove Miller to Scott Paper Company and left her there. After dropping Miller off at work, Peters drove to his place of employment, where he stayed until dark. After he got off work, Peters went to Miller's apartment and watched television until he went and picked her up from work about 11:00 p.m. Peters testified that he did not consume any alcohol between the time he took Miller to work and the time he picked her up. On his way to get her, Peters stopped at a gasoline station and bought more beer. After Peters picked Miller up, they each opened a can of beer and headed toward her apartment.
Another Scott Paper employee testified that he came out of the mill with Miller when they got off work at 11:00 and that he saw her get into an automobile at the gate. The witness got into his car and proceeded out of the parking lot with Miller's car ahead of his and with Ikner's car behind him. Ikner passed the witness and the witness turned off the highway prior to the collision.
While Miller and Peters were on their way back toward Miller's apartment, their *389 car collided with Ikner's. The plaintiffs contend that Ikner attempted to run their vehicle off the road and that he intentionally caused his vehicle to collide with their car. They testified that while driving in the left lane of Interstate Highway 10 Ikner's car pulled up alongside them. Upon seeing Ikner's car, Miller exclaimed, "Clint is going to hit us." Ikner's vehicle moved toward Miller's car, forcing it onto the shoulder and Ikner's left rear fender, came into contact with Miller's right front fender, causing Miller's car to strike a guardrail and a bridge. Miller testified that after the collision she lapsed into unconsciousness and upon regaining consciousness she looked up and saw Ikner looking into the window of her car laughing at her.
Ikner's version of the facts was very different from the plaintiffs'. He called to the stand a payroll accountant from Scott Paper, who testified that according to the company's records Miller was on vacation on the day in question and did not report to work on that day. Ikner testified that after he left work that evening he was proceeding down Interstate Highway 10 in the center lane in a lawful manner when his car was struck from the rear. He said that his car was spun around and that after he got out he realized for the first time that the car which had hit him was Miller's. Ikner testified that he went over to the car after the policeman arrived and looked in and saw Miller and Peters. He denied that he laughed at Miller when he looked into the car.
Ikner's first argument on appeal is that the verdict was contrary to the great weight of the evidence and that the evidence was insufficient to support the verdict. In support of that argument, he relies heavily on the testimony of the investigating police officer and on the plaintiffs' admission that they had been drinking at the time of the accident. The police officer testified that he found skid marks beginning at or near the line between the left lane and the center lane of the expressway and ending at the guard rail. The officer testified that in his opinion the impact occurred on the line between the lanes or on the right side of the left lane. The officer also testified that he smelled alcohol on Peter's breath. Ikner points out that the officer's opinion as to the location of the impact contradicted the plaintiffs' assertion that they were hit after Ikner forced them onto the shoulder of the road.
There are two possible conclusions which could be drawn from the evidence presented in this case. Either the defendant intentionally injured the plaintiffs in a fit of jealousy or the plaintiffs, for no apparent reason other than inattention or intoxication, negligently ran into an innocent defendant. It is impossible to know with absolute certainty whose version of the facts was closer to the truth. There is a presumption underlying our system of jurisprudence, however, that the trier of fact is in a better position to judge the credibility of witnesses and to ferret out the truth than is an appellate court. Therefore, when cases are presented ore tenus, the court's findings are entitled to a presumption of correctness and will not be disturbed on appeal unless plainly wrong or manifestly unjust. Seier v. Peek, 456 So. 2d 1079, 1081 (Ala.1984); Johnson v. Jagermore-Estes Properties, 456 So. 2d 1072, 1075 (Ala.1982). We are not in a position to weigh the evidence, which is, in effect, what the defendant wishes for us to do. Since there was credible evidence to support the trial court's findings, we must presume them to be correct.
In addition to arguing the sufficiency of the evidence, Ikner raised two issues regarding the admissibility of documentary evidence. The first issue concerns the admissibility of records from Scott Paper Company which Miller introduced to rebut Ikner's claim that she did not work on the evening in question. The other issue involves the admissibility of the plaintiffs' medical bills.
The evidence introduced through the payroll accountant caught the plaintiffs by surprise. During the lunch recess Miller and her attorney went to Scott Paper Company's offices to obtain records showing that *390 she worked on the day in question. On rebuttal, Miller testified that she went to the office at the company's pulp mill where she worked and requested the custodian of the records in that office to make copies of the time sheet and logbook entries. She testified that the pulp mill office keeps its own employee work records in the form of a logbook, which is filled in and signed by the two supervisors in charge of each shift at the end of each shift. Miller then offered photocopies of the logbook for the day in question in order to prove that she worked that day.
The defendant objected, and the trial court replied:
The plaintiffs subsequently submitted the copies of the records, along with an affidavit from the custodian of the records stating that they were accurate photocopies of business records which he was required to keep as part of his job. The defendant renewed his objection to the admission of the exhibits.
On appeal the defendant argues that the trial court improperly allowed the plaintiffs to lay the foundation for introduction of the records into evidence by use of an affidavit. He argues that the affidavit is hearsay and that the predicate to the admissibility of business records must be laid by the testimony of a witness.
Any writing made as a record of an act, transaction, occurrence, or event is admissible to prove the act, transaction, occurrence, or event if it was made in the regular course of business at the time of the act, transaction, occurrence, or event, or within a reasonable time thereafter. Rule 44(h) A.R.Civ.P.; see C. Gamble, McElroy's Alabama Evidence, § 254.01 (3d ed.1977).
The rule does not require that the person who made the entry be the witness who lays the foundation for the introduction of the record into evidence. See Bailey v. Tennessee Coal, Iron & Railroad Co., 261 Ala. 526, 530-531, 75 So. 2d 117, 120-121 (1954); Mahone v. Birmingham Electric Co., 261 Ala. 132, 135-136, 73 So. 2d 378, 380-381 (1954). Any witness who knows the method used in the business of making records of the kind in question and knows that it was the regular practice of the business to make such records at the time of the event in question or within a specified reasonable time thereafter is competent to lay the foundation by testifying that the exhibit is such a record. Austin v. State, 354 So. 2d 40, 42 (Ala.Civ. App.1977); C. Gamble, McElroy's Alabama Evidence, § 254.01(3) (3d ed.1977).
Mrs. Miller's testimony properly authenticated the documents. The affidavit from the custodian was not necessary to the introduction of the exhibit. They could have been admitted at the time they were first offered. The rule provides that a photocopy of a writing "shall be deemed to be an original record and shall be presumed to be a true and correct reproduction of the original record it purports to represent," and that "the circumstances of the making of such photostat or other photographic copy [of the record] may be shown to affect its weight but they shall not affect its admissibility." Rule 44(h). The defendant's arguments regarding the admissibility of the pulp mill records are meritless.
Finally, Ikner argues that the trial court committed reversible error in overruling his objection to the admission of evidence of hospital bills on the ground that the plaintiffs had failed to show their reasonableness or the necessity for the treatment for which the bills were incurred.
The pretrial order entered in this case required the parties to make all documents, including medical bills, available to all parties prior to the trial; it required that any objections to such documents be made in writing prior to the trial. The defendant *391 argues that he was not presented with the bills prior to the trial. The plaintiffs argue that the bills were provided to the defendant.
At the time of the trial no one really knew whether the defendant, who during the pendency of the case had been represented by lawyers other than the one who tried the case, had been provided with copies of the bills. Even if trial counsel or the defendant's prior lawyers were not provided with copies, the lawyers who represented the defendant certainly knew or should have known the medical bills would be introduced at the trial. It was obvious that the plaintiffs were claiming that they incurred medical expenses as a result of the collision. A treating physician was deposed, and a lawyer representing the defendant was present at the deposition. To allow the objection to stand would thwart the operation of the pretrial order, which was designed to obviate the necessity of having to deal with this sort of objection during the trial.
AFFIRMED.
ALMON, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
Rule 44(h), A.R.Civ.P., treats at least three different questions concerning business records. First, it recognizes an exception to the hearsay rule. Second, it sets forth the procedure for authenticating business records, C. Gamble, McElroy's Alabama Evidence, § 254.01(3) (3rd ed.1977). Third, it states that a photostatic or photographic copy "shall be deemed an original" so as to satisfy the best evidence rule. Webb v. Pioneer Insurance Co., 56 Ala. App. 484, 323 So. 2d 373 (1975).
There is no best evidence rule issue presented in this case, because we are dealing with a photocopy. The question is whether the copy has been properly authenticated so that it is admissible under the business record exception to the hearsay rule.
Initially, I agree with the defendant's argument that authentication cannot be established by affidavit. There is no question that generally the law requires testimony to be by an in-court witness so as to satisfy requirements of confrontation and cross-examination. I see nothing in Rule 44(h) that sanctions authentication by affidavit. Dean Gamble refers to "testimony by any witness" when discussing the authentication procedure. Gamble, supra, at § 254.01(3). Both of the cases cited in the majority opinion involve authentication by witnesses. I have found no case that allows authentication by affidavit. Admittedly, the opinion does not hold that authentication by affidavit is permissible, but it implies that it might be.
Instead, the opinion concludes that Miller's testimony was sufficient to authenticate the record. For the record entry to be admissible, the proponent must show that the entry was made in the regular course of business and that it was the regular course of the business to make such an entry at the time of the event noted or within a reasonable time thereafter. A.R. Civ.P. 44(h). Miller's testimony was sufficient to authenticate the record, as required by Rule 44(h). Therefore, the record was properly admitted.
MADDOX and JONES, JJ., concur. | October 4, 1985 |
dd8b0ae5-d8f1-4b44-8437-3b273e1b9613 | Wooldridge v. Rowe | 477 So. 2d 296 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 296 (1985)
William Joseph WOOLDRIDGE, et al.
v.
Lamar ROWE, d/b/a Rowe General Contractors.
84-142.
Supreme Court of Alabama.
September 6, 1985.
Rehearing Denied October 4, 1985.
*297 Bob Sherling of Drinkard & Sherling, Mobile, for appellants.
Joseph J. Boswell, Mobile, for appellee.
MADDOX, Justice.
The basic question presented by this appeal is the liability of a builder of a home to a buyer who is not in privity of contract with him.
We draw the summary of the facts from appellants' brief.[1]
On March 25, 1982, plaintiffs, William Joseph Wooldridge and his wife, filed a complaint in the Circuit Court of Mobile County, against Lamar Rowe d/b/a Rowe General Contractors, in which they sought recovery of damages resulting from a fire at their home. Plaintiffs claimed that Rowe had not built the fireplace in a workmanlike manner and that the fire damage was caused to the home as a proximate consequence thereof. Plaintiffs also alleged that Rowe negligently built the fireplace and that Rowe's negligence proximately resulted in fire damage to the home. Plaintiffs also claimed that Rowe wantonly constructed the fireplace and that the fire damage to the home was proximately caused by this wanton conduct.
Rowe filed a motion to dismiss the complaint, in which he averred that he owed no duty to the plaintiffs in that they had purchased the house from persons other than him. Plaintiffs responded to Rowe's motion to dismiss by filing an affidavit setting forth alleged facts. The court granted Rowe's motion to dismiss, but allowed plaintiffs 20 days toamend. The plaintiffs filed an amended complaint consisting of three counts, in which they set forth the same general theories alleged in the original complaint, but claimed that Rowe owed them a specific duty because Rowe "knew or should have known that injury of the above nature of that suffered by plaintiffs was likely to result if said fireplace was not constructed in a workmanlike manner," and if reasonable care was not exercised in its construction. Rowe filed a motion to dismiss the amended complaint in which he claimed again primarily that he owed no duty to the plaintiffs. Rowe's motion to dismiss was denied. Upon motion by Rowe, State Farm Fire and Casualty Insurance Company was added as a party-plaintiff as being a real party in interest. Rowe then answered the amended complaint and asserted as affirmative defenses that there was no privity of contract or other relationship between plaintiffs and defendant which gave rise to any duty from defendant to plaintiffs. The case was set for trial, but on the date of trial, Rowe moved that the court reconsider its order denying his motion to dismiss plaintiffs' amended complaint, and, after reconsideration, the court granted Rowe's motion, and the complaint was dismissed.
We summarize the facts, drawn from the pleadings and accompanying affidavits, to determine whether a cause of action was stated either in implied warranty or in tort. These facts are stated most favorably to the plaintiffs' theory of their case.
On November 17, 1977, the plaintiffs, William Joseph Wooldridge and Ann C. Wooldridge, purchased a home located at 2256 Hillside Drive West, Mobile, Alabama, from James R. Weaver and Dorothy J. *298 Weaver. The home had been built by the defendant, Lamar Rowe d/b/a Rowe General Contractors and, upon completion, sold to the Weavers on September 16, 1977.
On December 19, 1981, a wall in the Wooldridge home which was directly behind the fireplace caught fire, causing damage to the home and its contents. Inspection of the fireplace subsequent to the fire revealed that the fireplace was improperly constructed. The concrete block base was built by laying concrete blocks on their sides rather than upright, and there was no mortar in the blocks. The firepit was built with only one layer of firebrick instead of two. The one layer of firebrick was immediately adjacent to a wall of gypsum board. The contractor who examined the fireplace advised there should have been a retainer placed between the firebrick and the interior wall of the house. The opinion of the contractor who examined the damage was concurred in by the city building inspector. On the day of the scheduled trial, the plaintiffs proffered to the court the additional evidence that the fireplace was not built in accordance with the city building code.
In December 1981, plaintiffs attempted to contact Rowe by mail, making a claim for damages arising out of the defective construction of the fireplace. Having received no response, plaintiffs filed the instant suit on March 25, 1982.
We affirm.
Although there is some evidence in the file which would indicate that the plaintiffs claim that the builder may have made certain representations to them about the condition of the house and actually made some repairs on the house, the cause of action they pleaded, and the issue they frame on this appeal, is stated in their brief:
Because the Wooldridges frame the issue as they do, we limit our discussion in this opinion to that one issue. That issue, as narrowly framed, presents to us once again the question of when and under what circumstances the purchaser of a house can sue a builder for injuries suffered as a result of the unworkmanlike manner in which the house was constructed.
The Wooldridges do not claim that they were in privity of contract with the builder, Rowe; in fact, in their stating the issue for our decision, they state "no privity of contract"; therefore, the doctrine of caveat emptor would apply to them. See Cooper & Company v. Bryant, 440 So. 2d 1016 (Ala.1983); Blankenship v. Ogle, 418 So. 2d 126 (Ala.1982); Ray v. Montgomery, 399 So. 2d 230 (Ala.1980).
Although we have abrogated the caveat emptor rule in sales of new residential real estate by a builder/vendor, Cochran v. Keeton, 287 Ala. 439, 252 So. 2d 313 (1971), we are not inclined in this case to depart from a longstanding rule which provides certainty in this area of the law. A purchaser may protect himself by an express agreement in the deed or contract of sale. Ray v. Montgomery, supra, 399 So. 2d at 233.
As we stated previously, we have addressed only the precise issue framed by the appellants, and this opinion should be so construed by the bench and bar.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON, SHORES and ADAMS, JJ., concur.
BEATTY, J., dissents.
JONES, J., not sitting.
[1] Appellee builder did not file a brief with the Court. | September 6, 1985 |
3953e5cd-7045-4e78-96f8-ec7a1a394388 | Ex Parte Hilsabeck | 477 So. 2d 472 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 472 (1985)
Ex parte Michael HILSABECK.
(Re: Michael L. Hilsabeck v. State of Alabama).
No. 84-112.
Supreme Court of Alabama.
September 27, 1985.
*473 Joan Van Almen of De Ment & Wise, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted certiorari in this case in order to determine whether Act 80-446 (now codified at Code 1975, § 14-9-41), is violative of either the Alabama Constitution or the United States Constitution.
The salient facts are as follows:
Petitioner Michael Hilsabeck was convicted of robbery in the first degree and rape, and was sentenced to serve two concurrent fifteen-year sentences. Hilsabeck filed a petition for a writ of habeas corpus challenging the validity of Act 80-446, which denied him the benefit of correctional incentive time, commonly known as "good time." The trial court denied petitioner's writ, and the Court of Criminal Appeals affirmed.
In his petition for writ of certiorari before us, Hilsabeck maintains that the Court of Criminal Appeals, 477 So. 2d 465, erred; he asserts the following:
1. Act 80-446 violated Article IV, § 45, of the Alabama Constitution because it contained a provision which broadened the scope of the Act beyond that expressed in the title;
2. Act 80-446 violated Article IV, § 61, of the Alabama Constitution (1901) because an amendment to the Act changed the original purpose of the Act;
3. Act 80-446, on its face, violates the equal protection guarantees of the fourteenth amendment;
4. Act 80-446, as applied to petitioner, violates the equal protection guarantees of the fourteenth amendment, because inmates with sentences of ten or more years who were sentenced after petitioner are receiving the benefit of correctional incentive time;
5. Act 80-446 violates the due process guarantees of the fourteenth amendment.
We are of the opinion that petitioner's assertions that Act 80-446 violates the Alabama Constitution are not meritorious. Similarly, petitioner's contentions with regard to the United States Constitution (Issues 3, 4, and 5) are also without merit. We affirm the judgment of the Court of Criminal Appeals.
Petitioner's first argument is that Act 80-446 violates Article IV, § 45, of the Alabama Constitution, which provides in pertinent part:
The title to Act 80-446, followed by the pertinent portions of the Act are as follows:
"Be It Enacted by the Legislature of Alabama:
Petitioner contends that, upon reading the title, one could reasonably conclude that the Act establishes criteria for granting incentive good time to all inmates, with the exception of habitual offenders, but that the body of the Act provides that inmates serving ten years or more in prison would also be ineligible for deductions in their sentences. In short, he contends that the title indicates that all inmates except habitual offenders are eligible for incentive time, but that the body of the Act excludes many others, i.e., those serving sentences of ten years or more in prison.
Before we discuss petitioner's specific claim regarding § 45 of the Constitution, we deem it instructive to set out the purpose of § 45 and the guidelines for determining whether that section has been violated by the legislature.
In Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So. 2d 903 (1971), then-Chief Justice Heflin, with seven members of this Court concurring, spelled out the purpose of § 45 of the Alabama Constitution, and the guidelines for applying that section when construing legislative enactments. He wrote:
"This Court in Yielding v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580, held that a statute has but one subject, no matter to how many different matters it relates if they are all cognate, and but different branches of the same subject." 287 Ala. at 22, 246 So. 2d at 908. (Emphasis added.)
*476 Examined in the light of these criteria, Act No. 80-446 meets all the requirements of § 45.
The purpose of Act No. 80-446 is "clearly expressed" as one to establish the "Alabama Corrections Incentive Time Act." That alone states that the legislation deals with "good time" for prison inmates. The next two clauses in the title, respectively, state that the Act establishes "certain criteria" for "earned deductions" and creates "classifications for measurement of such deductions and eligibility therefor." (Emphasis added.) That language clearly expresses that the body of the Act will spell out which inmates will and which inmates will not be eligible for earning incentive time. We cannot conclude, therefore, as petitioner suggests, that the legislature, by specifically mentioning in the title "habitual offenders" thereby was required to mention other groups who would also be ineligible.
Clearly, the title to the Act is not "so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment." Opinion of the Justices, 294 Ala. 571, 319 So. 2d 699 (1975). We are not here faced with a factual situation like that presented in Alabama Educ. Ass'n v. Bd. of Trustees of the University of Alabama, 374 So. 2d 258 (Ala.1979), where this Court held that the Education Appropriation Budget Act violated § 45 because a "dues check off" provision appeared in the Act, but was not mentioned in the title.
In a related argument, petitioner asserts that the Act violates Article IV, Section 61, of the Alabama Constitution. Section 61 provides:
It is well established in Alabama that "purpose" as used in Section 61 of the Constitution means "general purpose," Union Oil Company of California v. Eagerton, 426 So. 2d 814 (Ala.1982). In Opinion of the Justices, 383 So. 2d 527, 528 (Ala. 1980), it was written that "the `purpose' of a bill within the section has been held to mean its general purpose, not mere details through which its purpose is manifested and effectuated." (Emphasis in original.) Petitioner claims that the original Act provided that all inmates except habitual offenders were to be classified and receive correctional incentive time, and that an amendment which made inmates serving sentences of ten years or more also ineligible, changed the "purpose" of the Act.
We hold that the amendment to the bill did not change the original purpose of the bill. Blackwell v. State, 230 Ala. 139, 162 So. 310 (1935); Comer v. City of Mobile, 337 So. 2d 742 (Ala.1976) (State Ethics Law bill enlarged without changing the original purpose).
Based on the foregoing, we are of the opinion that the judgment of the Court of Criminal Appeals is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., dissents, with whom FAULKNER and JONES, JJ., concur.
ADAMS, Justice (dissenting).
I respectfully dissent. I disagree with the majority's holding that Article IV, § 45, of the Alabama Constitution has not been violated in this case. As the majority correctly points out, § 45 was enacted in order to protect against the legislature's being misled by a title of a bill which does not clearly express its subject. After reading the entire title of the bill involved in this case, and not just the first three clauses, which are the focus of the majority opinion, one could reasonably believe that all inmates would be classified so as to receive some degree of earned deductions *477 from sentence except habitual offenders, who are the only group of inmates specifically referred to in the title as not being eligible for earned deductions. Thus, a legislator could have read only the title of the bill and believe he was voting for a bill which allowed correctional incentive time for all inmates except habitual offenders, when in effect he was voting for a bill which allowed correctional incentive time for all inmates except habitual offenders, when in effect he was voting for a bill which denied the majority of inmates the benefits of correctional incentive time. Evidence in this case indicates that a majority of Alabama's inmates have sentences of 10 years or more. This is the very danger that § 45 was enacted to guard against. As this Court stated in Alabama Ed. Ass'n v. Board of Trustees of the University of Alabama, 374 So. 2d 258 (Ala.1979):
Id. at 262. Without reading the text of the bill and only reading the title, one would never know that the bill effectively allows correctional incentive time to only a minority of inmates now serving time in prison.
I must also dissent from the majority's holding that Article IV, § 61, of the Alabama Constitution was not violated. The purpose of the Act, stated succintly, is to establish a system whereby inmates receive earned deductions from sentences. The original bill in the Senate would have achieved that result, as those inmates with sentences of ten or more years could have earned incentive time in both Class II and Class III, and would have been ineligible only from attaining Class I status. The Act as passed with amendment, however, rather than providing each inmate with the opportunity to earn incentive time, denied those inmates with sentences of ten or more years the opportunity to earn any deductions from their sentences. It is clear to me from a reading of the entire title that the purpose of the Act was to establish a system for the measurement and award of correctional incentive time, and to exclude only habitual offenders from earning such incentive time. I fail to see how a bill can be amended to so drastically alter its effect on a majority of this State's inmates, without there being a change in its original purpose.
FAULKNER and JONES, JJ., concur. | September 27, 1985 |
1ad85243-d100-4389-a91f-f5f76eee7de3 | Alabama Power Co. v. Brooks | 479 So. 2d 1169 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1169 (1985)
ALABAMA POWER COMPANY
v.
George Thomas BROOKS.
84-46.
Supreme Court of Alabama.
September 20, 1985.
Rehearing Denied November 8, 1985.
*1171 S. Allen Baker, Jr. and Dan H. McCrary of Balch & Bingham, Birmingham, for appellant.
David H. Marsh and Kenneth W. Hooks of Emond & Vines, Birmingham, for appellee.
SHORES, Justice.
Alabama Power Company appeals from a judgment entered on a jury verdict in favor of George Brooks in this action to recover damages for personal injuries. We affirm.
George Brooks filed suit in the Circuit Court of Jefferson County against Alabama Power Company, Inc. (APCo),[1] alleging that it negligently and/or wantonly maintained its electrical power lines and failed to warn him of the resulting danger. The trial court directed a verdict on the wantonness count in favor of APCo, and the issue of negligence was submitted to the jury, which returned a verdict for Brooks in the amount of $452,496.00.[2] The trial court subsequently denied APCo's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, and it appeals.
On September 25, 1975, Brooks received serious injuries[3] while on the job, when the mast or "boom" on the mobile drilling rig he was operating came into contact with a 7,200-volt uninsulated power line, which had been installed and maintained by APCo. The contact occurred while he was checking the hydraulic fluid, which was located in a container underneath the boom. At the time he suffered his injuries, he was employed by Mitchell-Neely Mining Company at its Lanco Pit, operating in Tuscaloosa County. The drilling rig which Brooks was operating was a Chicago Pneumatic T650. It consisted of a truck and body supporting an erectable drill boom. This particular rig had been located at the Lanco Pit operation of Mitchell-Neely for several weeks. The company that owned and operated the pit prior to Mitchell-Neely was also in the business of strip mining. Such an operation generally requires the use of drilling rigs of this type.
Two days prior to the date Brooks was injured, bad weather caused the Lanco Pit operation to shut down in the middle of the day, and all of the workers were sent home. At that time, Brooks drove the drilling rig to the shop area and parked it under a dusk-to-dawn light. This light, which was attached to the same utility pole that supported the line eventually contacted, was the only such light located in that area. Brooks parked the drilling rig approximately 15 feet from a gas pump used to fuel the equipment utilized in the mining operation.
On the date of his injury, Brooks arrived at work shortly before 6:00 a.m. It was customary for him to conduct the preshift servicing of the equipment prior to daylight. The boom, which was located on top of the rig, had to be raised to check the hydraulic fluid. Before raising the boom, Brooks backed the rig a short distance *1172 from the utility pole to avoid striking the light. He then let the truck jacks down to stabilize the rig and began raising the boom. He watched the back of the boom to insure that it did not strike the truck and cause damage to the arms that raised and lowered it. Prior to reaching its fully-extended position, the boom came into contact with the line. The electric current traveled through the boom and operating controls and into Brooks.
Because it was dark when the contact occurred, Brooks could not see the line; however, he knew it was there. He testified at trial that he associated no danger with what he was doing that morning. He had seen the boom in the raised position around that line and had worked on the drill with the boom in the extended position around the line on prior occasions. It was not readily apparent to him that the boom could reach the line which was contacted.
The lines which ran through the shop area were installed by APCo in 1966, to provide electrical service to the AlCo Mining Company, predecessor to Mitchell-Neely. APCo made the decision concerning the positioning of the line in question and had the authority at any time during or subsequent to its installation to heighten, bury, or insulate it. Later that year, APCo received notice that certain types of equipment having access to the shop area necessitated its raising some power lines to provide adequate clearance. An APCo work order indicated that taller utility poles were installed in the area to accommodate certain types of large equipment traveling on a driveway to and from the pit. Although the particular span of lines raised at that time did not contain the line that Brooks eventually contacted, the driveway leading to the pit also provided access to the shop area. Brooks parked the rig in this driveway, which ran through the shop area between the gas pump and the power line in question. A work order dated January 5, 1967, reflects that APCo returned again to the shop area and conducted additional work. Extra lines were added to accommodate additional load requirements necessitated by the use of certain power tools there, such as a lathe, saw, and welder.
APCo first contends that the trial court committed reversible error by not granting its motion for a directed verdict and later refusing its motion for a judgment notwithstanding the verdict. It argues that it had no duty to insulate its lines in the shop area or to take any precautionary measures with respect thereto because it had no notice, actual or constructive, of any activity on, around, or under the subject lines, which would have indicated that persons might come into contact with them. We disagree.
In Bush v. Alabama Power Co., 457 So. 2d 350, 353 (Ala.1984), the Court restated the duty of a power company with regard to the use and location of uninsulated electrical lines:
See also Alabama Power Company v. Smith, 273 Ala. 509, 142 So. 2d 228 (1962), and Alabama Power Co. v. Irwin, 260 Ala. 673, 72 So. 2d 300 (1954).
*1173 William Dow, an APCo engineer, testified as follows:
The line which Brooks contacted was installed by APCo in the shop area in 1966 to provide electrical service to the AlCo Mining Company, predecessor to Mitchell-Neely. AlCo, like Mitchell-Neely, was engaged in strip mining operations which require the use of large machinery, including the type of drilling rig used by Brooks. There was a gas pump located approximately 15 feet from the point where Brooks parked the rig prior to the contact. This pump was used regularly to refuel the mining equipment. Brooks testified that he had seen and worked with the boom raised around the line in question on previous occasions and was not aware that the boom could reach the line. At the time of contact, the rig was parked in part of a driveway which ran through the shop area between the gas pump and the line in question. Part of this driveway ran beneath the line contacted. APCo raised an adjacent span of lines to allow adequate clearance for large trucks traveling on this driveway to and from the pit. Although the adjacent lines raised did not include the one actually contacted by Brooks, the driveway passing under them provided access to the shop area where he was injured. Extra lines were added in the shop area to accommodate the use of certain power tools generally associated with maintenance work. APCo representatives worked in the shop area on at least three occasions prior to the date of Brook's injury, and an inspection, according to the testimony of William Dow, probably occurred shortly before the date of contact.
In light of the above evidence, reasonable men could differ as to whether APCo had sufficient notice so as to have anticipatd *1175 that employees of Mitchell-Neely might operate, service, refuel, or repair their mining equipment, including the subject drilling rig, in the shop area within close proximity to the uninsulated line. "Where the facts upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury." Alabama Power Company v. Alexander, 370 So. 2d 252, 254 (Ala.1979). Therefore, we find no error on the trial court's part in submitting the notice issue to the jury.
APCo also raises numerous points of error on the part of the trial court in support of its argument that it was entitled to a new trial. It contends that the trial court erred in refusing its requested jury charges 11, 12, and 20, which read as follows:
Again, we disagree. Charge 11 is a correct proposition of law, but was properly refused because, as framed, it might easily have misled the jury as to the primary issue in this case and point intended to be emphasized, viz., that APCo is under an obligation to insulate its lines so as to prevent injury only where it may reasonably be anticipated that persons may come into contact with them. Torian v. Ashford, 216 Ala. 85, 112 So. 418 (1927).
APCo's duty to safeguard and insulate arises in the presence of notice, actual or constructive, that persons "may" come into contact with its uninsulated lines, Bush v. Alabama Power Co., supra, not pursuant to notice that persons would "likely" or "probably" come into contact with them. Therefore, it was not error to refuse charge 12. Charge 20 was also properly refused because it would require APCo to have notice of the specific activity of "drill raising" in order to establish a duty. The activity that places APCo on notice that persons may come into contact with its lines does not have to be the same activity involved in the injury-producing accident. Alabama Power Co. v. Smith, supra.
APCo also contends that the trial court erred by admitting into evidence several published articles (Exhibits 1-3) and certain excerpts therefrom (Exhibits 5-7). It argues that the articles are hearsay, not being properly authenticated under the "learned treatise" exception to the hearsay evidence rule and that the excerpts are not relevant to any issue in the case.
In the recent case of Johnson v. McMurray, 461 So. 2d 775, 779 (Ala.1984), the Court stated:
*1176 David MacCullum, a consulting safety engineer, testified as follows:
Predicates to the admission of the remaining exhibits were laid in substantially the same form. APCo does not dispute the qualification of MacCullum as an expert in the field, only that the predicates were insufficient in that they did not also refer to each of the exhibits as being "standard." However, as previously noted in Johnson v. McMurray, supra, it is sufficient that the article is authenticated by a properly qualified expert as being a trustworthy authority on the subject. Therefore, the trial court did not err in admitting Exhibits 1-3.
APCo, relying on Murray v. Alabama Power Co., 413 So. 2d 1109 (Ala.1982), further insists that the excerpts from the articles (Exhibits 5-7) were irrelevant and, thus, inadmissible because they contain statistical information concerning prior electrical contact injuries incurred across the country. It argues that there was no showing that these accidents were not too remote or occurred under substantially the same conditions and circumstances as existed in the present case.
The Court in Murray v. Alabama Power Co., supra, was following the general rules stated by McElroy:
C. Gamble, McElroy's Alabama Evidence § 83.01(1) (3d ed. 1977).
Id. at § 64.04(1).
In the present case, the statistical information in question was not introduced to prove that the shop area of the Lanco Pit operation was, in fact, dangerous or unsafe at the time of the accident or that APCo knew or should have known that such a dangerous condition existed there. Its purpose was to show the existence of national, industry-wide evidence of a serious problem resulting from certain types of equipment contacting uninsulated power lines, and it was relevant as to the degree of care exercised by APCo in the inspection and maintenance of its lines. There was no error in the admission of Exhibits 5-7.
APCo also attacks the verdict as being a quotient verdict. In support of its contention in this respect, it submitted to the trial court the affidavits of S. Allen Baker, Jr. (counsel for APCo), Charles L. Logsdon, Richard I. Allison, and Shari Womack. Mr. Baker's affidavit shows that the day after the rendition of the verdict and dismissal of the jury, he contacted Mr. Logsdon, the foreman of the jury, and apparently questioned him as to the method by which the jury had arrived at the sum of $452,496.00. At his request, Mr. Logsdon mailed to him a number of pieces of paper containing notes and calculations indicating the method of computation utilized by the jury. In his affidavit, Mr. Logsdon stated, in pertinent part, as follows:
The affidavits of Allison and Womack are substantially similar.
Brooks moved to strike these affidavits on the ground that they disclosed confidential jury room deliberations and sought to impeach the verdict. The trial court reserved its ruling on the motion to strike. Brooks then offered into evidence six juror affidavits contra to those submitted by APCo. One of the affidavits, that of Letitia D. Hasberry, in pertinent part, reads:
The remaining affidavits submitted by Brooks were similar in content.
Neither testimony nor affidavits of jurors are admissible to impeach their verdicts; however, such evidence is admissible to sustain them. Maring-Crawford Motor Co. v. Smith, 233 So. 2d 484 (Ala. 1970), and cases cited therein. The juror affidavits submitted by APCo were for the obvious purpose of impeaching the verdict and, consequently, were inadmissible.[4]*1179 The affidavit of S. Allen Baker, relative to his receipt of the pieces of paper from juror Logsdon, was also inadmissible, as it would indirectly permit that to be done which could not be done directly. Maring-Crawford Motor Co. v. Smith, supra.
Those affidavits introduced by Brooks in support of the verdict were properly before the trial court and affirmatively show that there was no agreement among the jurors to be bound by a verdict reached pursuant to a predetermined method of calculation as argued by APCo. Proof of such an agreement is essential before a verdict may be declared a quotient verdict. Maring-Crawford Motor Co. v. Smith, supra. Because APCo has failed to meet its burden of proof in this regard, we find no basis for disturbing the lower court's order denying its motion for a new trial on the ground that the verdict was a quotient verdict.
During trial, Dr. William Stewart, a vocation rehabilitation specialist, testified for Brooks concerning his potential lost earning capacity. APCo contends that the trial court erred in admitting his testimony on the ground that he did not reduce the dollar amount of Brooks's future lost earnings to a present cash value. In connection with this alleged error, it argues that the trial court's reference to "present cash value" in its charge regarding the loss of future earnings was meaningless to the jury.
APCo failed to timely object to that portion of Dr. Stewart's testimony concerning the loss of future income and, therefore, any alleged error was not properly preserved and presented for our review.[5]Costarides v. Miller, 374 So. 2d 1335 (Ala.1979); Wilkinson v. Duncan, 294 Ala. 509, 319 So. 2d 253 (1975); American Fire & Casualty Co. v. Archie, 409 So. 2d 854 (Ala.Civ.App.1981).
APCo next argues that the trial court erred in limiting its cross-examination of Brook's expert witness, Charles Point, an electrical engineer, concerning certain provisions contained in the 1981 National Electric Safety Code (NESC). It was undisputed at trial that the 1961 NESC is authoritative in the electric utility industry and governed the installation of the lines in the present case. However, there was a dispute over which sections contained therein were controlling. APCo's expert witness, William Dow, testified that § 232 was applicable. Brooks's expert witness testified that the applicable sections were 200(B) and (C), 210, and 211. By reference to the 1981 NESC and for purposes of strengthening Mr. Dow's opinion testimony, as well as impeaching that of Mr. Point, APCo sought to show that in the later edition §§ 200 (B) and (C), 210, and 211 were deleted.
In Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689, 691 (1963), the Court observed:
In the present case, it cannot be said that the trial court abused its discretion in limiting the cross-examination. The publication of the 1981 NESC followed the date of the accident by approximately seven years, the date of the installation of the lines in question by fifteen years, and the date of publication of the controlling NESC by twenty years. The subsequent deletion alone of §§ 200(B) and (C), 210, and 211 from the 1981 NESC is not relevant to show that they were not previously controlling.
Finally, we disagree with APCo's contention that the trial court erred to reversal by refusing its requested jury charge 16, which reads as follows:
APCo argues that United States Fidelity & Guaranty Company (USF & G), the workmen's compensation insurance carrier of Mitchell-Neely Mining Company, waived its right of reimbursement for benefits previously paid to Brooks under § 25-5-11(a), Ala. Code 1975, as additional consideration for the release of William Mitchell. By an amendment to its answer, APCo pleaded USF & G's waiver of this right as a setoff against a potential verdict and alleged its value to be $13,882.70, reserving the right to prove both at trial.
The trial judge initially charged the jury that they should determine from the evidence the amount of damages suffered by Brooks and then give credit for the amount of $212,000.00, representing the cash settlement of Chicago Pneumatic Equipment Company and William Mitchell. APCo's requested charge, which reflects the waiver of USF & G's right of reimbursement,[6] assessing its value at $13,882.70, was properly refused because it was premature. Valuation of the right of reimbursement in this case required knowledge of both the jury's verdict and Brooks's liability for attorney fees and other litigation expenses. See Fitch v. Insurance Company of North America, 408 So. 2d 1017 (Ala.Civ.App.1981). Moreover,' the responsibility for crediting the verdict in this regard rested with the trial judge after he advised the jury that he would deduct the $212,000.00 from the verdict.[7] This new instruction was in response to a jury question that came after several hours of deliberation and was agreed to by counsel for both APCo and Brooks.
The judgment of the trial court is affirmed.
AFFIRMED.
*1181 TORBERT, C.J., and MADDOX, FAULKNER, BEATTY and ADAMS, JJ., concur.
[1] Chicago Pneumatic Equipment Company and William Mitchell were also named as defendants, but prior to trial settled for $175,000.00 and $37,000.00, respectively.
[2] The trial court credited against the verdict the sum of $212,000.00, which represented the consideration for the case settlements of Chicago Pneumatic Equipment Company and William Mitchell.
[3] Brooks suffered severe burns which resulted in the amputation of his right leg and portions of his left foot and hand.
[4] Alabama Fuel & Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782 (1936), relied upon by APCo as providing for the admissibility of the affidavits under an exception to the general rule, is distinguishable. In that case, the Court adhered to the longstanding rule that affidavits concerning the debates and discussions of the case by the jury during deliberations are inadmissible for the purpose of impeaching the verdict. The Court did acknowledge that a verdict may be impeached through proof of extraneous facts, Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402 (1914) (wherein there was an improper and coercive communication made by the bailiff to the jury), and that, under certain circumstances, jury room deliberations are admissible to corroborate a prima facie showing of such extraneous facts or events occurring outside the jury room which affected the verdict (e.g., juror's acceptance of a bribe in consideration for a vote or willful concealment of information during voir dire). In the present case, the affidavits offered by APCo (which include the papers attached thereto) do not concern extraneous facts and, therefore, are not within the rule of Powaski, supra.
[5] Counsel for APCo did not object to this portion of Dr. Stewart's testimony until the following day during a conference in the trial judge's chambers. At that time, counsel for APCo was instructed that he would thereafter have the opportunity to cross-examine Dr. Stewart as to what method he used in calculating the lost earnings. The record shows that, on cross-examination, Dr. Stewart did, in fact, testify as to the present value of Brooks's future lost earnings:
"Q. Now, you did notyou cannot take thator did you take that $499,000 figure and determine what figure represents the present value of that money?
"A. Only in terms of the way I just explained it.
"Q. You are not an economist now?
"A. No, I am not.
"Q. You are not an actuary that works with insurance companies?
"A. No, I am not.
"Q. You gave us a figure then that the present worth of that $499,000 figure is, what it's worth today?
"A. Based on the way I calculated the figures, it would be that amount."
[6] $225,882.70 = $212,000.00 + $13,882.70.
[7] The first opportunity which APCo had to prove the value of USF & G's right of reimbursement was subsequent to the jury's verdict, prior to entry of judgment by the trial court. We note from the record that APCo never attempted to do so. | September 20, 1985 |
ad85fbf7-0195-448f-830d-1a1c687d1bfd | Roberson v. Ammons | 477 So. 2d 957 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 957 (1985)
Herman M. ROBERSON, Individually and d/b/a Highlandview Motors and Hilda R. Tranum
v.
George W. AMMONS and Sarah E. Ammons.
83-1418.
Supreme Court of Alabama.
September 27, 1985.
Rehearing Denied January 17, 1986.
*959 Stephen M. Langham, Prattville, for appellants.
J. Greg Allen of Beasley and Wilson, Montgomery, for appellees.
ADAMS, Justice.
The defendants-appellants, Herman Roberson and Hilda Tranum, suffered an adverse jury verdict and judgment in the Montgomery County Circuit Court in a suit based on the alleged conversion of an automobile owned by the plaintiffs-appellees, George and Sarah Ammons. The facts surrounding the lawsuit are complicated and were sharply disputed during the trial.
On April 11, 1981, the plaintiffs purchased a 1976 Chevrolet Monte Carlo automobile from George Jenkins for $1,495.99 and executed a retail installment contract and security agreement pledging the automobile as collateral for the balance of the purchase price owed to Jenkins. After an initial down payment and trade-in, the plaintiffs owed a balance of $845.00, payable in nine monthly installments.
In December 1981, plaintiff Sarah Ammons, upon Jenkin's advice, approached either Hilda Tranum or Herman Roberson and requested a loan. Either Tranum, Roberson, or both of them, owned and operated Highlandview Motors, a used automobile sales lot in Montgomery, Alabama. Sarah Ammons received checks written on Roberson's personal bank account totaling $730.00 and executed a note prepared by Tranum for $937.50. Although the note stated that no interest was charged for the loan, the $207.50 difference between the note amount and the amount received by Ammons represented interest. Payments on the note were to be made in nine monthly installments. The plaintiffs agreed to use the automobile purchased from Jenkins as collateral for the loan, but no security agreement was executed at the time of the *960 transaction. Jenkins, or his brother, retained title to the vehicle.
The plaintiffs paid the balance of their debt to Jenkins down to $148.50. In January 1982, the plaintiffs pledged the automobile as security for a previous loan with a local finance company, Finance One. Finance One paid off the balance of plaintiffs' debt to Jenkins, and Jenkins transferred title to the automobile to the finance company or to the plaintiffs, who in turn gave the title to the finance company.
After title to the plaintiffs' automobile was in the hands of Finance One, the plaintiffs defaulted on the loan from the defendants. In January 1983, at Tranum's direction, a person hired by her seized the plaintiffs' automobile and impounded the vehicle at the Highlandview Motors sales lot. Upon discovery of the vehicle's location, Sarah Ammons approached the defendants and was informed that the vehicle would not be released until the plaintiffs either paid $600.00 or turned over to the defendants a 1973 vehicle belonging to plaintiffs.
The plaintiffs filed suit, and, after amendments, their complaint alleged that the defendants intentionally converted the plaintiffs' vehicle and knowingly violated the Alabama Small Loan Act, Code 1975, § 5-18-1 et seq., as well as the Alabama Mini-Code, Code 1975, § 5-19-1 et seq., in deliberate disregard of a 1976 federal court order enjoining defendants from violating the provisions of these laws. In their amended answer, the defendants admitted violating the aforesaid Code provisions, but denied the conversion count.
At trial, the defendants moved for a directed verdict on several grounds, all of which were denied by the trial court and which partially frame the issues presented in this appeal. However, the trial court granted the plaintiffs' motion for directed verdict as to the conversion count of plaintiffs' complaint, finding that the defendants admitted violations of the Alabama Small Loan Act and the Alabama Mini-Code voided the loan transaction with the plaintiffs, giving the defendants no legal authority to seize the plaintiffs' automobile. The trial court instructed the jury on compensatory and punitive damages as a result of the defendants' conversion, and the jury returned a verdict for $1,380.00 in compensatory damages and $100,000.00 in punitive damages against the defendants. The defendants filed a timely motion for JNOV, new trial, or remittitur, which was denied.
The defendants raise the following issues on appeal:
1. Did the trial court err by submitting the issue of punitive damages to the jury under the evidence?
2. Did the jury award excessive punitive damages under the evidence?
3. Did the jury award excessive compensatory damages under the evidence?
4. Was there sufficient evidence of plaintiffs' legal title in the converted automobile?
5. Did the trial court err in allowing evidence of a federal court injunction?
6. Did the trial court err by permitting expert testimony about the defendants' violations of the Alabama Small Loan Act and Mini-Code?
We find no error in the trial court's denial of the defendants' motion for directed verdict as to the sufficiency of evidence concerning punitive damages, nor do we find that the jury's award of $100,000.00 is excessive.
Carolina Casualty Ins. Co. v. Tisdale, 46 Ala.App. 50, 237 So. 2d 855, 859-60, cert. denied, 286 Ala. 741, 237 So. 2d 861 (1970). The conversion committed in known violation of the law and of plaintiffs' rights is itself legal insult, contumely, or malice sufficient to justify an award of punitive damages. Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So. 2d 652 (1975). The jury may also consider aggravating circumstances, such as abusive conduct by the defendant in determining the amount of the award. Id.
In the instant case, the trial court directed a verdict in favor of the plaintiffs on the conversion claim and submitted the issue of damages to the jury. There was evidence presented by which the jury could justifiably conclude that the conversion was conducted in known violation of the law, as well as in violation of the plaintiffs' rights. The defendants admitted violating state law in their loan transaction. These violations negated all rights or interest of the defendants in the plaintiffs' vehicle and made their repossession unlawful. Although Tranum testified that she was unaware that she did not have a valid security interest in the plaintiffs' vehicle, other evidence, including a prior federal court injunction enjoining defendants from violations of Alabama and federal finance laws, as well as many years of prior loan activity by the defendants, provides an ample basis for the jury's finding that the defendants knew that their actions were unlawful. When evidence is in conflict, the jury is free to believe or not believe the witnesses. Carolina Casualty Ins. Co., supra.
There was also evidence by which the jury could have found that the conversion involved insult or malice. Sarah Ammons testified that the defendants initially refused to allow her to retrieve her personal belongings from the vehicle, but that after some delay she was given the items, at which time she was told by Roberson that he would keep the vehicle "till hell froze over." The trial court correctly denied defendants' motion for directed verdict on the issue of punitive damages.
The trial court did not err by denying defendants' motion for remittitur, because the jury's punitive award of $100,000.00 was not excessive under these facts. The award of punitive damages is within the sound discretion of the jury, considering all attendant circumstances. Randell v. Banzhoff, 375 So. 2d 445 (Ala.1979). The jury's award is to punish the wrongdoer based upon the enormity of the wrong to the plaintiff, as well as the necessity to prevent similar wrongs from being committed in the future. Todd v. United Steelworkers of America, 441 So. 2d 889 (Ala. 1983). As we noted in U-Haul Co. v. Long, 382 So. 2d 545, 548 (Ala.1980):
Considering the entire record, we cannot say that the award of punitive damages in the case at hand is so excessive as to warrant reversal.
Defendants argue that there was insufficient evidence to support the jury award of $1,380.00 in compensatory damages. Generally, the measure of damages for the conversion of mortgaged property by the mortgagee is the difference between *962 the fair market value of the property converted and the balance due on the mortgage debt at the time of conversion, plus interest. Ott v. Fox, 362 So. 2d 836 (Ala. 1978). However, where, as here, there is no balance owing on the mortgage due to the nullifying of the loan transaction, the measure of damages is the fair market value of the property at the date of the conversion, or anytime after the date of conversion and prior to trial, plus interest. Coffee General Hospital v. Henderson, 338 So. 2d 1022 (Ala.Civ.App.1976).
Defendants correctly point out that there was no direct evidence of the value of the converted vehicle at the time of or subsequent to the conversion. However, evidence at trial reflected that the plaintiffs purchased the vehicle for $1,495.00 in April 1981, and Ron Coleman of Finance One testified that he appraised the vehicle at $1,200.00 in January 1982, twelve months prior to the conversion. Although we agree that the value of the automobile twelve months prior to the date of conversion is not the proper measure of damages, we find that the evidence presented at trial was enough to allow the jury to determine the value of the vehicle at the time it was converted. Even though Coleman valued the vehicle at $1,200.00 in 1982, it was the jury's prerogative to reject Coleman's estimate and formulate a value in relation to the original purchase price of $1,495.00. It is also clear that the jury's figure included interest from the date of conversion. In any event, we cannot find that the verdict of $1,380.00 returned by the jury is so contrary to the evidence as to warrant reversal of this cause. See Armstrong v. Farrell, 267 Ala. 606, 104 So. 2d 309 (1958).
Legal title with immediate right of possession by the plaintiffs to the converted property at the time of conversion is a necessary element of the conversion action. Johnson v. U-Haul of Southern Alabama, Inc., 357 So. 2d 665 (Ala.Civ.App. 1978). We find that there was substantial evidence at trial to satisfy this element of the plaintiffs' case. The plaintiffs introduced an Alabama license registration certificate in their name, as well as a bill of sale from Jenkins. Furthermore, Coleman testified that he was in possession of the original title to the vehicle, and Sarah Amnions testified that she transferred the title to Coleman after obtaining it from Jenkins. Under this evidence, the title-possession element was satisfied, and we find no error by the trial court in directing a verdict for the plaintiffs on the conversion count, nor in denying the defendants' motion for a new trial premised upon this ground.
The defendants' final two points challenge the propriety of the trial court's admission of evidence. First, defendants contend that it was error to admit evidence of a prior federal court order enjoining the defendants from making sales or loans without compliance with the Alabama Small Loan Act, Mini-Code, and Federal Truth-in-Lending provisions. The injunction arose from the sales and loan activities of the defendants with customers of their used car sales lot. Defendants objected to the proffered court order as being irrelevant. Generally, evidence of past dealings of a party with nonparties is excluded as irrelevant; however, when intent of the party is at issue, that party's prior conduct and acts on other occasions which have a bearing upon that party's intent in a subsequent action are competent evidence. Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665 (Ala.1981). The injunction in the instant case clearly was relevant and probative as to whether the defendants converted the plaintiffs' vehicle in "known violation of the law" and also relevant to the jury's determination of the gravity of the defendants' wrongful conversion in awarding punitive damages.
Second, defendants objected on relevancy grounds to the testimony of a loan examiner with the State Banking Department. The witness testified that the defendants' loan transaction violated various provisions of Alabama law. Specifically, the witness stated that in his opinion the interest charged by the defendants on the plaintiffs' loan was approximately 65%. Defendants argue that since they had admitted *963 to violations of state law, the evidence was not probative of any issue remaining to be litigated. We disagree. The evidence was relevant to the issue of the defendants' knowledge of the violation of state law, as well as to the gravity of the wrong inherent in the conversion of plaintiffs' vehicle.
We stated recently in Ryan v. Acuff, 435 So. 2d 1244, 1247 (Ala.1983):
We find no abuse of discretion by the trial court in the admission of the injunction order or the testimony of the loan examiner.
The judgment is affirmed.
AFFIRMED.
MADDOX, FAULKNER, ALMON and SHORES, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that the judgment of the trial court should be affirmed. However, I believe that two points made in the majority opinion should be clarified. First, in discussing the trial court's decision to grant a directed verdict for the plaintiffs on their conversion count, Justice Adams writes:
In this case, the defendants admitted that they had acted in "deliberate violation of or reckless disregard for" Code 1975, § 5-19-1 (the Alabama Mini-Code). Under § 5-19-19 of the Mini-Code, it is only this kind of violation that will make the transaction involved void. It is for this reason that the defendants' interest in the vehicle had been negated, thereby making the repossession unlawful.
A second point to make is that the plaintiffs failed to introduce the proper evidence for the jury to determine the compensatory damages to be awarded on their conversion count. The proper measure of damages is the value of the property at the time the conversion took place or at any time thereafter and prior to trial, plus interest. Coffee General Hospital v. Henderson, 338 So. 2d 1022, 1023 (Ala.Civ.App.1976). The evidence presented by the plaintiffs established the value of the vehicle twelve months prior to the conversion. This evidence was clearly not within the relevant time frame for determining the value of the property.
However, I am unable to find in the record where the defendants properly preserved this issue for appeal. To present an error to this Court, one must properly invoke an adverse ruling of the trial court. Conley v. Beaver, 437 So. 2d 1267, 1270 (Ala.1983). The defendants did not object to this evidence at the time it was introduced, nor did they sufficiently bring this issue to the attention of the trial court in their motion for directed verdict. Therefore, there were insufficient facts or grounds in the record for this Court to review the alleged error. Conley, supra. | September 27, 1985 |
79fcbda9-fae3-4d44-a074-6a5eed97c870 | Broughton v. Merchants Nat. Bank of Mobile | 476 So. 2d 97 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 97 (1985)
Elliott P. BROUGHTON
v.
The MERCHANTS NATIONAL BANK OF MOBILE, a corporation.
84-341.
Supreme Court of Alabama.
September 6, 1985.
*98 James F. Hampton of McLain & Hampton, Montgomery, for appellant.
*99 William H. Hardie, Jr. of Johnstone, Adams, Howard, Bailey & Gordon, Mobile, for appellee.
BEATTY, Justice.
This is an appeal from summary judgment for the defendant in an action for negligent mismanagement of a living trust, conspiracy and fraud against the deceased beneficiary of the trust, and breach of the fiduciary duty owed by the trustee/executor to the decedent. The action was brought by the decedent's testamentary heir. We affirm.
Appellant Elliott P. Broughton is one of three heirs of the estate of Dorothy Carter Broughton, who died in 1979 in Mobile, Alabama. In 1971, Mrs. Broughton entered into a trust agreement with Merchants National Bank of Mobile (Merchants). The agreement provided that Merchants would manage the trust for Mrs. Broughton's benefit during her lifetime and that, upon her death, it would pay over any remaining trust property to her estate. Mrs. Broughton's will also named Merchants as executor of her estate.
After Mrs. Broughton's death, Merchants filed a petition for the probate of her will in the Probate Court of Mobile County. The petition for final settlement was heard by the probate court in March 1983. In that hearing, Elliott Broughton submitted a memorandum brief outlining his objections to the settlement of the estate. He contended that Merchants "did not execute fully or properly its duties as an Executor of this Estate"; that the executor "failed in its fiduciary capacity because of an inherent conflict of interest"; and that Merchants mismanaged and misadministered the living trust. Broughton requested that the probate court order "an independent audit so that the true facts of the management of this trust (and therefore estate) can be made known to the court." Merchants submitted a brief in reply.
The probate court issued its decree on final settlement, finding that Merchants had properly administered the estate and releasing Merchants from any further duty or liability to Mrs. Broughton's estate. Rather than appealing this order of the probate court, Broughton filed a new complaint in the Mobile Circuit Court. The five counts of that complaint are quoted in pertinent part below:
In an affidavit filed in response to Merchants' motion for summary judgment, Broughton stated:
Notwithstanding the assertions contained in his affidavit, the trial court granted summary judgment against Broughton.
On appeal, Broughton argues that the statements made in his affidavit furnish at least a scintilla of evidence that genuine issues of material fact exist in this case and that the administration of Dorothy Carter Broughton's estate in the probate court did not bar this action for tortious misconduct against the trustee and executor. Merchants, on the other hand, contends that a testamentary heir has no standing to bring ex delicto claims against his decedent's trustee or executor. Merchants further contends that, under the doctrine of res judicata, this action is barred by the final settlement order entered in the probate court, where the same issues were litigated.
The dispositive issue in this case is whether the probate court's decree, which absolved the executor of wrongdoing, bars Broughton from brining this separate action in tort. We agree with Merchants' argument that these claims are barred by the doctrine of res judicata.[1] The four essential elements of res judicata are:
As the following analysis demonstrates, each of these four elements is present in the case at bar.
The judgment of a probate court is entitled to the same finality as the judgment of any other court of general jurisdiction. A probate court is a court of record and is "vested with original and general jurisdiction in practically all matters having to do with probate and administration of decedents' estates or with orphans' business.... Its judgments and decrees are entitled to the `same validity and presumption which are accorded to judgments and decrees of other courts of general jurisdiction.'" Opinion of the Justices, 280 Ala. 653, 657, 197 So. 2d 456, 460 (1967). Furthermore, "[w]here jurisdiction has attached, a decree of the Probate Court, within its sphere of jurisdiction, is as conclusive as that of any other court of general jurisdiction, and is aided by the same intendments of law." White v. Hilbish, 282 Ala. 498, 502, 213 So. 2d 230, 234 (1968).
Section 12-13-1 establishes the general jurisdiction of probate courts:
In addition to having original and general jurisdiction over executorship, the probate court of Mobile County was also granted general equity power concurrent with that of the circuit court by Act No. 974, 1961 Ala. Acts, p. 1551:
Thus, the probate court clearly had jurisdiction to render a decree on final settlement of Mrs. Broughton's estate, even though issues of negligence and mismanagement were raised. Indeed, at the hearing upon final settlement in the probate court, Broughton, through his attorney's brief and cross-examination of witnesses, raised the issues of mismanagement of the living trust and conflict of interest, charging that the trustee/executor failed in its fiduciary capacity. Thus, the probate court considered these issues before rendering its decree on the merits in favor of Merchants.
*102 Although Broughton contends that he was not a party to the proceedings in the probate court, Merchants maintains that he was a party. In Smith v. Rice, 265 Ala. 236, 240, 90 So. 2d 262, 266 (1956), the Court used the following criteria to determine who was a party to proceedings in the Probate Court of Jefferson County:
Broughton appeared at the hearing and was represented by counsel; his attorney submitted a brief to the probate court and cross-examined witnesses during the hearing. Thus, Broughton clearly was a party to those proceedings.
Furthermore, the fact that Broughton added five fictitious defendants in his complaint in the circuit court does not violate the requirement that the parties to both suits be identical. As this Court has stated:
The first three elements of res judicata being present in this case, it is necessary to determine whether the cause of action is the same in both the original proceeding and the present action. The determination of this issue "depends on whether the issues in the two suits are the same and whether the same evidence would support a recovery in both suits. Geer Brothers, Inc. v. Crump, 349 So. 2d 577 (Ala.1977), quoting Sessions v. Jack Cole Co., 276 Ala. 10, 158 So. 2d 652 (1963)." Dominex, Inc. v. Key, 456 So. 2d 1047, 1054 (Ala.1984).
In Dominex and in the more recent case of Chandler v. Commercial Union Ins. Co., 467 So. 2d 244 (Ala.1985), this Court engaged in an extensive analysis of the cause-of-action element of res judicata. In Chandler, we observed:
In the present case, both the allegations asserted by Broughton in the probate court and the claims he now asserts in this case arose from the same nucleus of circumstances, those being Merchants' handling of the trust and the estate, as well as the alleged conflict of interest or fraud resulting therefrom. Broughton has not presented in this action any new or different evidence from that which he presented in the probate court; the facts alleged in support of his claims before the circuit court are the same as those before the probate court.
Furthermore, Broughton could have raised the issues of fraud, conspiracy to defraud, and mismanagement of the living trust in the probate court proceedings.
*103 While that court could not have awarded him the damages he now seeks, he did have a recourse. Broughton could have asserted his claims sounding in tort by having the case removed to the circuit court before the probate court had rendered its decree of final settlement. Section 12-11-41, Code of 1975, provides:
Removal was not Broughton's only possible course of action. Having lost the right to removal when the probate court entered upon final settlement (Culp v. Godwin, 295 Ala. 316, 329 So. 2d 88 (1976); White v. Hilbish, 282 Ala. 498, 213 So. 2d 230 (1968)), Broughton could have appealed to the circuit court for a trial de novo. Such appeals are provided by §§ 12-22-2 and -20, Code of 1975.
Summary judgment was properly granted in favor of Merchants. Because we find that prior proceedings bar relitigation of the claims, we need not address Merchants' contention that the ex delicto claims did not survive or are barred by the statute of limitations. Therefore, the judgment below is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] Because we hold that the claims asserted by Broughton are barred by res judicata, we decline to reach the issue of whether these claims survive in favor of Broughton and against Merchants. | September 6, 1985 |
5595bd1d-db7a-4011-b7d1-68de724c51d6 | Johnson v. Haleyville Mobile Home Supply | 477 So. 2d 328 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 328 (1985)
David Cromwell JOHNSON
v.
HALEYVILLE MOBILE HOME SUPPLY, INC.
No. 84-481.
Supreme Court of Alabama.
September 20, 1985.
William H. Atkinson of Fite, Davis, Atkinson & Bentley, Hamilton, for appellant.
Jackie O. Isom, Hamilton, for appellee.
TORBERT, Chief Justice.
This is an appeal by David C. Johnson from the determination by the trial court that the judgment lien of Haleyville Mobile Home Supply, Inc. (HMH) against the property of Jerry W. and Marcelle Lewis was superior to a deed which conveyed title to some of their property to him. In a previous decision, this Court held that the judgment secured by HMH was properly entered against the Lewises. Lewis v. Haleyville Mobile Home Supply, Inc., 447 So. 2d 691 (Ala.1984). The issue on this appeal is whether HMH obtained the rights of a judgment creditor for the purposes of Code 1975, § 35-4-90, on the date of the initial entry of judgment by the trial court or on the date the Lewises' motion for new trial was denied.
Most of the evidence presented at trial consisted of documents concerning the initial suit between HMH and the Lewises. The facts presented in these documents can best be summarized in the following chronology provided in Johnson's brief to the Court.
Appellant's brief, page 8.
Johnson first argues that, for the purposes of this statute, HMH's rights as a judgment creditor did not accrue until the Lewises' motion for new trial was denied by the trial court on July 27, 1983. We disagree with Johnson's contention. A determination of when rights under a judgment "accrue" is not dependent upon the outcome of a post-judgment motion.
Under Code 1975, § 6-9-211, a judgment, upon which a certificate of judgment is duly filed, constitutes a lien against the property of the defendant located in the county of filing. In this case, HMH received its judgment against the Lewises on May 25, 1983, and duly filed a certificate of judgment on the same day. As of that day, pursuant to the provisions of Code 1975, § 6-9-211, HMH had a valid judgment lien on the property of the Lewises. Only Rule 62(a), A.R.Civ.P., which provides for an automatic stay of execution on a judgment for a period of thirty days, prevented HMH from enforcing its lien. At any time after that thirty-day period, HMH could have executed on its judgment regardless of the fact that a post-judgment motion might be pending.[1]See, 11 C. Wright and A. Miller, Federal Practice and Procedure § 2903 (1983).
Johnson additionally argues that the trial judge in the initial suit between HMH and the Lewises, entered a new judgment on July 27, 1983, when he reduced the amount of the judgment awarded to HMH. Therefore, Johnson asserts, this is the judgment that created HMH's rights as a judgment creditor. Based on the language used by the trial judge in the order dated July 27, 1983, we must also disagree with this argument. In that order, the trial judge stated, "the Court is of the opinion that the judgment heretofore entered on the 25th day of May, 1983 should be reduced." Nowhere in that order is it stated that it was intended to be a new judgment. If a timely motion for new trial is made, a trial court may amend or correct its judgment. Jasper Community Hospital v. Hyde, 397 So. 2d 153, 155 (Ala.Civ.App. 1981). In this case, upon timely motion, the trial judge amended the judgment of May 25, 1983, by reducing the amount to be awarded to HMH, and this action did not affect the rights established in that previous judgment.
The trial court was correct in deciding that HMH's judgment lien was superior to Johnson's deed from the Lewises. For a judgment creditor to have priority over a prior executed deed under Code 1975, § 35-4-90, it must be shown that the rights as a judgment creditor accrued before the prior executed deed was recorded and that the judgment creditor did not have notice of the deed at the time of the judgment. W.T. Rawleigh Co. v. Barnette, 253 Ala. 433, 436, 44 So. 2d 585, 587 (1950). We have decided that HMH's rights as a judgment creditor accrued on May 25, 1983. The facts presented to the trial court show that Johnson did not record his deed until July 19, 1983, and that HMH did not have notice of that deed at the time its judgment *330 was rendered and recorded. Therefore, the determination of the trial court in favor of HMH was correct.
AFFIRMED.
MADDOX, FAULKNER, SHORES, BEATTY and ADAMS, JJ., concur.
[1] While 62(b), A.R.Civ.P., allows the trial judge to stay the execution of a judgment pending the disposition of a post-judgment motion, no such stay was issued in this case. | September 20, 1985 |
145dcae4-8838-4031-ac9b-408088f03cf1 | US Fidelity & Guar. Co. v. Armstrong | 479 So. 2d 1164 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1164 (1985)
UNITED STATES FIDELITY AND GUARANTY COMPANY
v.
Jewel ARMSTRONG, et al.
83-1375.
Supreme Court of Alabama.
September 20, 1985.
Rehearing Denied November 8, 1985.
*1165 Alan C. Livingston of Lee & McInish, Dothan, for appellant.
D. Taylor Flowers of Buntin & Cobb, Dothan, for appellee Jewel M. Armstrong.
*1166 William D. Coleman of Capell, Howard, Knabe & Cobbs, Montgomery, for appellee Harrington Const. Corp.
L.A. Farmer, Jr. of Farmer & Farmer, Dothan, for appellees Wainwright Eng. Co., Inc. and Sam H. Wainwright.
TORBERT, Chief Justice.
United States Fidelity and Guaranty Company (USF & G) filed in the Circuit Court of Houston County a declaratory judgment action, from which this appeal arises. The purpose of the declaratory judgment action was to determine the insurance coverage, if any, afforded to several of the defendants, namely Harrington Construction Company; Wainwright Engineering Company; Sam Wainwright, as officer of Wainwright Engineering Company; and Fisk Enterprises. Ms. Jewel Armstrong, another defendant in the declaratory judgment action, had previously filed an action to recover for property damage against the aforementioned defendants, and her action is presently pending in the Circuit Court of Houston County awaiting this determination of coverage. The damage allegedly resulted from the acts of the defendants during construction of a sanitary sewage system in Samson, Alabama.
The City of Samson hired Wainwright Engineering Company to plan and design a new city sewage system and contracted with Harrington Construction Company to construct the sewer system project. Harrington later subcontracted its work on the sewer system project to Fisk Enterprises.
In May of 1981, USF & G issued a renewal policy of general liability insurance to Harrington Construction Company, effective for one year from May 1, 1981. In October of 1981, the City obtained a general liability insurance policy from USF & G, effective for one year from October 7, 1981. Wainwright Engineering Company was added to this policy as an additional insured.
Essentially, the sewer system project entailed replacing the existing sewer lines with new lines. The existing lines were crushed, destroyed, or removed, and the new lines were installed in approximately the same location. During the construction of the sewer system, raw sewage flowed onto adjacent land owned by Ms. Armstrong. The damage caused by the overflow of sewage was the basis of the pending lawsuit which prompted this declaratory judgment action to determine liability insurance coverage by USF & G, if any.
The trial court tried the case partially on deposition testimony and partially on oral testimony, without a jury, and made no special findings of fact. At the conclusion of the declaratory judgment action, the trial court ruled against USF & G, concluding that "the Plaintiff, United States Fidelity and Guaranty Company, is under a duty to defend the Defendants ... and the Plaintiff would be liable to pay, within policy limits, any judgment rendered in said action against said parties."
USF & G appeals from this judgment on three grounds. First, USF & G contends that there was no "occurrence" as defined in the policy and thus no coverage. Second, USF & G contends that a "pollution exclusion" provision in the policy excludes coverage of Ms. Armstrong's claims. Third, USF & G contends that Wainwright Engineering Company and Mr. Wainwright are excluded from coverage by a "professional services exclusion" clause in the policy.
The USF & G policy of general liability insurance provides the following:
"Occurrence" is defined in the policy as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage *1167 neither expected nor intended from the standpoint of the insured."
Testimony at trial indicated that the existing sewer line was intentionally crushed to allow work on a new sewage line to proceed below the existing line. The crushing blocked off the sewage, causing it to back up in the line and overflow through a manhole onto Ms. Armstrong's property.
USF & G argues that all of the acts which caused the sewage overflowand ultimately the alleged property damage were intended and that the resulting overflow should have been expected. Thus, USF & G concludes there was no "occurrence" to invoke policy coverage. We disagree.
Whether an insurance company owes a duty to provide an insured with a defense to proceedings instituted against him must be determined primarily from the allegations of the complaint. Ladner & Co. v. Southern Guaranty Ins. Co., 347 So. 2d 100, 102 (Ala.1977). If the injured party's complaint alleges an accident or occurrence which comes within the coverage of the policy, the insurer is obligated to defend, regardless of the ultimate liability of the insured. Ladner & Co., 347 So. 2d at 102.
If the complaint suggests that the injury alleged may not be within the coverage of the policy, then other facts outside the complaint may be taken into consideration. Ladner & Co., 347 So. 2d at 103. However, in this case, we need not go outside the complaint, because the allegations in the complaint are sufficient in themselves to invoke coverage under the USF & G policy.
The complaint filed by Ms. Armstrong alleges, inter alia, negligent conduct in Count I. We have previously held that the term "accident" does not exclude human fault called negligence. United States Fidelity and Guaranty Co. v. Bonitz Insulation Co. of Alabama, 424 So. 2d 569, 571 (Ala.1982); Employers Ins. Co. of Alabama, Inc. v. Alabama Roofing & Siding Co., 271 Ala. 394, 396, 124 So. 2d 261, 263 (1960). Employers Ins. Co. of Alabama, Inc. v. Rives, 264 Ala. 310, 312, 87 So. 2d 653, 655 (1955). In this case, the bare allegations in the complaint trigger USF & G's duty to defend its insureds. The duty to pay, however, must be analyzed separately.
There is a presumption in tort law that a person intends the natural and probable consequences of his intentional acts. However, this presumption has no application to the interpretation of the terms used in the "neither expected nor intended from the standpoint of the insured" coverage clause and the policy term "expected or intended injury" cannot be equated with foreseeable injury. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921, 925 (Ala.1984); Smith v. North River Ins. Co., 360 So. 2d 313, 315 (Ala.1978). This Court has recently made it clear that the legal standard to determine whether the injury was either expected or intended within this context is a purely subjective standard. Watson v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So. 2d 394, 396 (Ala.1985); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921, 925 (Ala.1984). The insured must have possessed specific intent to inflict the damage to activate this policy exclusion. Watson, 465 So. 2d at 396. See also, Hearn v. Southern Life & Health Ins. Co., 454 So. 2d 932, 934-35 (Ala.1984). There is no evidence on this appeal to suggest that the defendants specifically intended the discharge of raw sewage onto Ms. Armstrong's land.
A closely analogous case is that of Moss v. Champion Ins. Co., 442 So. 2d 26 (Ala. 1983). In Moss, a roofer was sued for water damage which occurred while a roof was being replaced. This Court held that while the roof was indeed intentionally removed, the resulting water damage was not intended, and, therefore, that there was an "occurrence" within the general liability policy terms.
USF & G next contends that its policy of general liability insurance specifically *1168 excludes the damage claimed by Ms. Armstrong by virtue of the standard "pollution exclusion" clause in the policy. This exclusion states:
This clause is relatively new to the insurance industry. Its insertion in standard liability policies began in the past decade in an attempt to protect the environment by eliminating coverage for industry-related pollution damages.
This Court has had occasion to interpret this exclusionary clause only once. In the case of Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Ins. Co., 347 So. 2d 95 (Ala.1977), we held that an identical clause was "not free of ambiguity" and should be strictly construed against the insurer. Moreover, we held that this clause was "intended to cover only industrial pollution and contamination." Id. at 99. See, also, Long, The Law of Liability Insurance, vol. 3, app. 58 (1981). To deny coverage here under this clause would be to distort the plain purpose of the pollution exclusion. We should not be understood to hold that raw sewage could never be such a "pollutant," or that the insurance company could not write an exclusion clause which would cover the activity here involved. We hold only that this policy clause, under the facts of this case, does not eliminate coverage.
USF & G's third contention is that the trial court committed error by providing coverage in this case for Wainwright Engineering Company and Mr. Wainwright individually. Wainwright Engineering Company was added by an endorsement as an additional insured in the policy issued to the City of Samson. USF & G relies on an exclusionary clause in the endorsement which states as follows:
USF & G contends that Wainwright Engineering Company and Mr. Wainwright, as an employee of the company, rendered only professional services and should be outside the coverage of the policy. This contention is without merit.
It is well established that the insurer's duty to defend is more extensive than its duty to pay. Lawler Machine & Foundry Co. v. Pacific Indemnity Ins. Co., 383 So. 2d 156, 157 (Ala.1980); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Moore, 349 So. 2d 1113, 1116 (Ala.1977); Ladner & Co. v. Southern Guaranty Ins. Co., 347 So. 2d 100, 102 (Ala.1977). As stated earlier, the duty to defend arises when the original complaint alleges a state of facts within the coverage of the policy. Ladner & Co., 347 So. 2d at 102-03.
In this case, by matching the allegations against Wainwright in the complaint with the terms of the policy, including the exclusions, we can find no allegation as to "the rendering of or the failure to render any professional services." Therefore, USF & G is under a duty to defend Wainwright Engineering Company and its employee, Mr. Wainwright, in the pending action.
Mr. Wainwright testified that Wainwright Engineering Company performed various functions for this sewage project. *1169 While Mr. Wainwright testified that some of the functions were professional services within the exclusion, he also indicated that some other functions, such as providing liaison between the City and the contractor, were not professional services within the exclusion. Whether the actions of Wainwright Engineering Company or Mr. Wainwright which allegedly damaged Ms. Armstrong were professional services within the exclusion is a question of fact. Since no specific findings of fact were made by the trial court, "this Court will assume that the trial court found those facts necessary to support its judgment, unless those findings would be clearly erroneous and against the great weight of the evidence." Popwell v. Greene, 465 So. 2d 384, 387 (Ala. 1985). Because there are facts that support the trial court's judgment, that judgment is not clearly erroneous or against the great weight of the evidence.
The evidence concerning this issue was presented partly ore tenus, when Mr. Wainwright testified in person; therefore, the ore tenus rule applies to attach a presumption of correctness to the trial court's findings of fact. First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 425 (Ala.1982). This presumption, coupled with the wide discretion vested in the trial judge in declaratory judgment actions, Home Ins. Co. v. Hillview 78 West Fire District, 395 So. 2d 43, 45 (Ala.1981), compels the conclusion that the trial judge properly found USF & G under a duty to pay for any damage the factfinder in the underlying action may find to have been caused by the non-professional services of these two defendants.
Upon review of the record in this case, we find that the trial court's judgment was not clearly erroneous or against the great weight of the evidence. Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, SHORES, BEATTY and ADAMS, JJ., concur. | September 20, 1985 |
9dc06b2c-7ca2-46b6-9684-f0544eb2b6df | Ex Parte State | 476 So. 2d 632 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 632 (1985)
Ex parte STATE of Alabama.
(Re Robert Lee CRITTENDEN, alias Bean Crittenden v. STATE of Alabama).
84-494.
Supreme Court of Alabama.
August 30, 1985.
*633 Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for petitioner.
Allen Edward Cook, Andalusia, for respondent.
ADAMS, Justice.
We granted certiorari to review the Court of Criminal Appeals' reversal in this case in light of United States v. Leon, ___ U.S. ___, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
The salient facts are as follows:
The defendant, Robert Lee Crittenden, had cohabitated with Sara Jackson, who had a nine-year-old daughter. The two quarreled and separated, and, according to the testimony of the defendant, Sara Jackson threatened him, saying that she would get back at him somehow.
Some time after the defendant moved out, Sara Jackson learned that her daughter had gonorrhea. The following day, October 8, 1982, Sara went to the sheriff's office seeking an arrest warrant, and she executed an affidavit in support thereof, which accused the defendant of first degree sexual abuse of her daughter. The defendant was arrested pursuant to the warrant, was convicted by the Circuit Court of Covington County of attempted rape in the first degree, and was sentenced to ten years and a day in prison.
On appeal, the Court of Criminal Appeals, 476 So. 2d 626, remanded the case for an evidentiary hearing regarding the issuance of the arrest warrant. The circuit court conducted the hearing, and on return to the remand order the Court of Criminal Appeals reversed the conviction and again remanded the case, because "the arrest warrant was issued on the basis of insufficient probable cause."
In its petition for certiorari, the State argues that, according to Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), a magistrate's determination of probable cause should be paid great deference. We agree that the case stands for this proposition in most instances; however, the Court went on to say:
462 U.S. at 239, 103 S. Ct. at 2332. In the case before us, the affidavit reads:
It is clear that this is the "bare-bones" type affidavit that the United States Supreme Court said in Gates would be inadequate. Alabama courts also recognize that affidavits, like the one in the present action, which consist solely of the affiant's conclusion that the named individual committed an offense, without setting forth the facts upon which the conclusion is based, are fatally defective. Malone v. State, 51 Ala. App. 19, 282 So. 2d 367, writ quashed, 291 Ala. 789, 282 So. 2d 371 (1973).
A "bare-bones" affidavit can be validated if it is supplemented with additional facts which the magistrate considered before determining that probable cause was present. The Court of Criminal Appeals remanded the case for an evidentiary hearing on this issue, but there was no showing that the magistrate had anything upon which to base the probable cause determination except the affidavit. Without such additional information, the affidavit and arrest warrant cannot be given any effect in this case.
In the case sub judice, soon after his arrest, the defendant gave a confession to the police. According to Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982), a confession obtained through custodial interrogation subsequent to an illegal arrest must be excluded from evidence unless there are intervening events which break the causal connection between the illegal arrest and the confession. The State argues that the "good faith" exception propounded in United States v. Leon, ___ U.S. ___, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), would require that the arrest based on the defective warrant be upheld, thus allowing the confession to be admitted into evidence. We disagree.
In Leon, the Supreme Court, addressing the argument concerning the policy of deference to a magistrate's probablecause determination, stated:
___ U.S. at ___, 104 S. Ct. at 3417. The Court followed this discussion with a footnote pertaining to the application of the "good faith" exception to such a case, stating in pertinent part:
___ U.S. at ___, 104 S. Ct. at 3417. Attempting to clarify the cases in which the newly adopted exception would apply, the Court continued:
___ U.S. at ___, 104 S. Ct. at 3422. The Court concluded by saying:
___ U.S. ___, 104 S. Ct. at 3423. The Court in Leon states that the affidavit at issue was clearly not a "bare-bones" affidavit, and suggests that if it were, the outcome would be different. We are of the opinion that the United States Supreme Court did not wish to extend the "good faith" exception in Leon to a case such as the one before us. Therefore, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur. | August 30, 1985 |
4429b91a-b2ab-4159-8539-f98e1653375e | City of Mobile v. Karagan | 476 So. 2d 60 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 60 (1985)
CITY OF MOBILE, a municipal corporation, and Mobile City Planning Commission
v.
Phillip P. KARAGAN.
83-1424.
Supreme Court of Alabama.
August 30, 1985.
*61 William R. Lauten and John L. Lawler, Mobile, for appellants.
Phillip P. Karagan, pro se.
TORBERT, Chief Justice.
This is an appeal from a judgment entered by the Mobile Circuit Court ordering appellants, the City of Mobile (City) and the Mobile City Planning Commission (Planning Commission), to rezone the subject property from Residence-Agriculture District to Two-Family Residence District. We reverse and remand.
This is the third time this case has been before us. See Karagan v. City of Mobile, 420 So. 2d 57 (Ala.1982); and Karagan v. City of Mobile, 437 So. 2d 120 (Ala.1983). On the first appeal, we reversed the judgment of the trial court, which had granted the City's motion to dismiss for failure to state a claim upon which relief might be granted. On the second appeal, we reversed a summary judgment that had been granted the City. The facts, as recited in those opinions, are pertinent here and we recite them again:
437 So. 2d at 120-21 and 420 So. 2d at 58-59.
Following a trial on the merits, the trial court, sitting without a jury, ordered the City and the Planning Commission to rezone Karagan's property from Residence-Agriculture to Two-Family Residence. The trial court held that the Planning Commission was required to state valid grounds in its recommendations to the City, and that the ground stated in the Planning Commission's recommendation to deny Karagan's proposed amendment, namely, that the "proposed development would be out of character with the neighboring single family *62 residential areas," was not a valid ground.[1]
On appeal, the City argues that because this is a zoning case, the only issue properly before this Court is whether the City's denial of Karagan's proposed amendment was "fairly debatable." Karagan, however, argues that the judgment of the trial court was correct and that because the ground stated in the Planning Commission's recommendation was invalid, the City's denial of the proposed amendment was arbitrary and capricious.
Mobile Zoning Ordinance, § IX-B-5, provides:
Section IX-B-6 provides in pertinent part:
Zoning is an exercise of the police power of a city and is a legislative matter. COME v. Chancy, 289 Ala. 555, 269 So. 2d 88 (1972). The legislature of Alabama delegated legislative authority to municipalities of the state to pass general zoning ordinances. Fleetwood Development Corp. v. City of Vestavia Hills, 282 Ala. 439, 212 So. 2d 693 (1968). Code 1975, § 11-52-70, provides:
Section 11-52-76 provides:
The Mobile Zoning Ordinance, which was enacted in accordance with the provisions of the Code, specifically provides that the Planning Commission shall make recommendations on proposed amendments and transmit its recommendations to the City for "further action." Section IX-B-6 of the zoning ordinance, which is entitled Legislative Disposition, specifies the "further action" the City might take. Consequently, the City, within the context of the zoning ordinance and within the limits imposed by the Code, has the ultimate authority to rezone, and the Planning Commission, in consideration of a rezoning amendment, *63 is an advisory body only. The Planning Commission can recommend to the City what it thinks should be done, but it cannot pass finally on an application to rezone. The City is not bound by a recommendation of the Planning Commission. Though we can find no Alabama case directly on point, in Cale v. City of Bessemer, 393 So. 2d 959 (Ala.1981), this Court affirmed the denial, by the Bessemer City Commission, of an application to rezone certain property after the Bessemer Planning and Zoning Commission had unanimously recommended approval of the application.
In the instant case, the recommendation of the Planning Commission and the grounds stated therein, were only factors to be considered by the City in arriving at its ultimate decision as a legislative body. See Wright v. Mayor and Commissioners of the City of Jackson, 421 So. 2d 1219 (Miss.1982); Taylor v. City of Little Rock, 266 Ark. 384, 583 S.W.2d 72 1979. We find to be particularly persuasive the case of Kleidon v. City of Hickory Hills, 120 Ill.App.3d 1043, 76 Ill. Dec. 277, 458 N.E.2d 931 (1984). In Kleidon, the City of Hickory Hills adopted a variation ordinance. The plaintiffs, in an attempt to enjoin enforcement of the ordinance, brought suit and alleged, in part, that the failure of the zoning board to make findings of fact with respect to the then-proposed ordinance invalidated the City's action in adopting the ordinance. The court affirmed the City's adoption of the ordinance and wrote:
120 Ill.App.3d at 104, 76 Ill.Dec. 284, 458 N.E.2d at 938.
Regardless of the grounds stated in the recommendation of the Planning Commission, the recommendation was no more than advisory in nature. Therefore, any alleged deficiency regarding the recommendation would not invalidate the legislative action taken by the City on Karagan's proposed zoning amendment.
The City's contention that the only issue before the court was whether the denial of the proposed amendment by the City was fairly debatable is correct.
The trial court did not make any finding as to whether the denial was fairly debatable. Therefore, the trial court erred in entering judgment for Karagan. The judgment is reversed and the cause remanded for a determination as to whether the denial by the City was fairly debatable.
REVERSED AND REMANDED.
FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.
[1] The parties did not argue the validity of the second ground set forth in the recommendation, that "a development of the density proposed should be located on a major street, or at least a secondary street," because the City admitted that Howells Ferry Road was a secondary street. | August 30, 1985 |
45c09a55-22d2-46bf-97c4-2b2d8e5e8d60 | Berry v. South Carolina Ins. Co. | 495 So. 2d 511 | N/A | Alabama | Alabama Supreme Court | 495 So. 2d 511 (1985)
William E. BERRY and Mary J. Berry
v.
SOUTH CAROLINA INSURANCE COMPANY, A Corporation.
Nolan COUCH and Gordon Gilbreath
v.
SOUTH CAROLINA INSURANCE COMPANY, A Corporation.
Nos. 84-250, 84-360.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied September 5, 1986.
Trey Riley, Huntsville, for appellants William E. Berry and Mary J. Berry.
Robert E. Patterson, Huntsville, for appellants Nolan Couch and Gordon Gilbreath.
Dennis Riley, Huntsville, for appellee.
ADAMS, Justice.
Two separate appeals were filed, one by William and Mary Berry, and the other by Gordon Gilbreath and Nolan Couch, from the Madison County Circuit Court's entry of summary judgment in favor of South Carolina Insurance Co., Inc., in its suit for declaratory relief against all appellants. We affirm.
On December 12, 1983, William Berry and his wife Mary Berry entered into a contract with Gordon Gilbreath and Nolan Couch, d/b/a Gilbreath & Couch Construction Company and Home Repair, wherein Gilbreath and Couch agreed to construct an addition to the Berrys' home and to install thermal pane windows in the existing structure. In late January or early February 1984, Gilbreath and Couch were informed that they could no longer work on the house because the work they had already completed did not pass an inspection conducted by the City of Huntsville Inspection Department, and, therefore, a new contractor's license and building permit had to be obtained before work on the home could *512 continue. Gilbreath and Couch agreed to get the license if the Berrys would take care of the permit, but the Berrys refused, and Gilbreath and Couch were unable to procure the license. As a result, the construction on the addition and the improvements to the house ceased and remain uncompleted.
The Berrys filed suit against Gilbreath and Couch, alleging breach of contract, misrepresentation, and breach of warranty. This prompted Gilbreath and Couch to call upon their comprehensive general liability insurance carrier, South Carolina Insurance Company, Inc., to provide a defense to the suit. South Carolina Insurance Company then filed suit seeking declaratory relief in the Circuit Court of Madison County. Based upon the pleadings and depositions taken, the court entered summary judgment in favor of South Carolina Insurance Company, stating that there was no coverage under the policy for the damages alleged or the claims stated by the Berrys against Gilbreath and Couch, and further, that there was no obligation under the policy to defend Gilbreath and Couch in the aforementioned suit. On November 30, 1984, William and Mary Berry appealed to this Court from the summary judgment, and Gilbreath and Couch appealed five weeks later. The cases were consolidated for our review, with the dispositive issue being whether the policy issued to Gilbreath and Couch by South Carolina Insurance Company obligates the company to provide a defense, and, if the defense fails, to pay a judgment entered against Gilbreath and Couch in the suit brought against them by William and Mary Berry.
In order for summary judgment to be proper, the trial court must conclude that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Silk v. Merrill Lynch, Pierce, Fenner & Smith, 437 So. 2d 112 (Ala.1983). Furthermore, summary judgment may not be granted if there is a scintilla of evidence supporting the non-movant's position. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
The Berrys rely on United States Fidelity & Guaranty Company v. Bonitz Insulation Company of Alabama, 424 So. 2d 569 (Ala.1982), as authority for their position that there was an "occurrence" which caused "property damage" in this case. Therefore, they say that South Carolina Insurance Company was obligated to defend them and pay a judgment if the defense failed. In Bonitz, the property owner sued the contractor for negligent installation of a roof. The roof was installed on a gym in 1972, and leaked numerous times over the next several years, causing a great deal of water damage to the gym. The definition of an "occurrence" in the insurance policy in Bonitz was identical to that in the policy before us, namely: "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." In Bonitz, we opined:
424 So. 2d 569 at 571. This Court went on to say:
Id., at 573.
In the case at bar, there is not even a scintilla of evidence to support the Berrys' assertion that an occurrence leading to property damage took place. On the contrary, *513 the deposition of Mary Berry reveals the following at pp. 24-25:
There is nothing in the deposition of Mary Berry or William Berry that alleges any damage to the existing structure as a result of "an accident, including continuous or repeated exposure to conditions...." Rather, all of the "damages" are related to the work done pursuant to the contract. The insurance policy specifically addresses this type of damage in its "work product exclusion," which states:
For all of the above-stated reasons, the judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., FAULKNER, ALMON and EMBRY, JJ., concur. | August 30, 1985 |
37c9eae2-4842-4c3a-b704-49b81a4e8feb | Grant v. Winstead | 476 So. 2d 36 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 36 (1985)
Shirley Ruth GRANT, Executrix under the Will of Earl J. Grant, Jr.
v.
B.R. WINSTEAD, Jr.
83-460.
Supreme Court of Alabama.
August 30, 1985.
Charles E. Clark of Clark and Caddis, Birmingham, for appellant.
Ollie L. Blan, Jr., of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee.
*37 ALMON, Justice.
This appeal involves a suit for alleged fraud and violation of fiduciary duty in connection with the purchase of stock by one stockholder/director of a closely-held corporation from another stockholder/director. The jury awarded $300,000 to the plaintiff but the trial court, upon defendant's motion, granted a judgment notwithstanding the verdict or, should that be reversed, a new trial.
The controversy is between Earl J. Grant, Jr., whose widow, as executrix, has represented his interest since before trial,[1] and B.R. Winstead, Jr. In October 1977 Grant sold his stock in Charles H. McCauley Associates, Inc., to Winstead. Grant worked for the McCauley architectural firm as a designer when Mr. McCauley died in 1970. Grant and four other long-time employees of McCauley formed Charles H. McCauley Associates, Inc., and caused the corporation to purchase McCauley's interest in the firm from his estate in 1971. These five individuals, Grant, Charles J. Snook, Robert H. Adams, W. Eugene Braswell, and Frank Burford, Jr., bought 80 shares each of the corporation's 400 shares. Each one contributed $9,600 and his individual guaranty on the corporation's note for $800,000.
In February 1974 the firm hired Winstead to serve as financial officer and later as secretary of the company. On September 27, 1974, Winstead purchased 60 shares in the company, 20 each from Grant, Burford, and Braswell.[2] Winstead paid $2,400 cash and executed notes for $44,300 for each block of twenty shares. Title to the shares was transferred to Winstead, but the notes were secured by the shares and the certificates were retained by the sellers. On January 17, 1977, Winstead gained clear title to 12 of the shares sold by Grant and 12 sold by Burford.[3] Each seller cancelled the note payable to him in the amount of $44,300 and accepted a new note for $17,720 secured against the remaining eight shares. Burford testified that Winstead paid him $1300 or $1400 cash at this time. Winstead testified that he paid $1339.80 to Grant. Thus, the evidence was that Winstead bought the first 12 shares from Grant for a total of $3739.80.
The transaction over which Grant sued was the sale of his remaining 60 shares to Winstead and the cancellation of the $17,720 note in October 1977. The consideration was $30,000 paid by Winstead to Grant, $10,000 severance pay from the company, and $3,200 paid to Grant from the company as final payment for the remaining eight shares sold to Winstead in 1974. Burford entered into an identical transaction with Winstead at the same time. Grant argues that the consideration was vastly out of proportion to the true value of the shares at the time,[4] which Winstead knew but Grant did not. He claims that Winstead fraudulently induced him and Burford to enter into the sale by manipulating the financial reports of the company to portray a bleak picture of its condition and prospects and by concealing information which he had a duty to disclose.
Grant's principal argument is that Winstead, as a director and the financial officer of this closely held corporation, owed a fiduciary duty of good faith and fair dealing with Grant when purchasing his shares in the corporation. He argues that Winstead, a certified public accountant, knew the value of the stock much better than did Grant, who worked for the firm as a designer and was not even an architect. Grant claims that Winstead embarked upon a fraudulent scheme to take over the company *38 by misrepresenting its financial condition and prospects.
Grant offered the testimony of James Landis as evidence of Winstead's fraudulent intent. About the time Braswell left the company in August 1976, Landis was approached about taking Braswell's place in the company. Landis stated that after the initial contact, Winstead invited him and his wife to Winstead's house for dinner. The occasion was almost exclusively social, but Landis testified that at one point when their wives were in another room, Winstead said he would like Landis to come with the company and if he did, "he and I together would take over the company." Landis testified that he made no reply and nothing further was said about the remark.
As proof of his allegations that Winstead falsified and misrepresented the financial condition of the company, Grant introduced the financial reports Winstead submitted to the directors. Winstead customarily submitted cash basis monthly reports including a balance sheet and an income statement. In addition to the usual monthly report for July 31, 1977, Winstead submitted a year-to-date report using the accrual method of accounting. This report showed the net income of the company for the five months of the fiscal year beginning on March 1, 1977, to be only $22,000.00. Grant contends that this statement understated fees earned by $400,000 and served to explain away the favorable cash situation shown in the monthly report.
The flaw in Grant's argument in this respect is that he presented no qualified evidence of any falsity, misrepresentation, or failure to follow accepted accounting methods in any of the financial reports. Winstead classifies the case as a suit for professional malpractice and states that the failure to offer any expert testimony constitutes a failure of proof. Grant replies that the suit is for fraud and breach of fiduciary duty and the financial statements were only an element of the means used to carry out the fraudulent scheme.
Even accepting Grant's view of the case, there was no evidence that the financial reports were false or misleading. The accrual method report for the five months ending July 31, 1977, followed the same accounting practices as the yearly company statements which were audited by an independent accounting firm. Grant's attacks on this and other financial reports issued by Winstead amounted to no more than unsubstantiated allegations. Grant's estate claims that he, being unsophisticated in financial matters, could not have understood the reports and was misled into believing the stock was worth substantially less than its true value.
Not only is this contention contrary to the evidence that Grant participated in the monthly board meetings and thus was knowledgable of the financial aspects of the company, it is also pure speculation. It amounts to little more than a supposition that, if Grant did not read the reports carefully, he might not have understood the stockholders' equity reflected in them. A verdict may not be based purely on speculation. Perdue v. Gates, 403 So. 2d 165 (Ala.1981).
Also fatal to Grant's fraud claim is the lack of evidence of reliance. "In actions for fraud, it is necessary that there be a false representation concerning a material existing fact. The plaintiff must rely on that false representation and must be damaged as a proximate result." Pugh v. Kaiser Aluminum & Chemical Sales, Inc., 369 So. 2d 796, 797 (Ala.1979); Code 1975, § 6-5-101; Fountain-Lowery Enterprises, Inc. v. Williams, 424 So. 2d 581 (Ala.1982); Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981).
Burford testified as to the sequence of events leading up to the final sale of stock to Winstead in October 1977. The company had several major lawsuits pending against it and there were not many new jobs coming to the firm. "I could see the amount of work assigned to the men in the drafting room. And it didn't take a genius to see that we didn't have enough work, really, to sustain the company." The corporation had recently paid off the balance *39 on the $800,000 note, issued in connection with its formation, and on which Burford and Grant had had contingent personal liability. Burford testified that this was "a load off of my back" and contributed to his decision to get out of the company at that time.
Burford went to Winstead early in October and offered to sell his remaining sixty shares for $30,000. He testified that he arrived at that figure "entirely on my own" and that Winstead had not approached him nor ever said anything to him about buying his or anyone else's stock. Winstead did not accept the offer right away but said he would think about it. Burford then told Grant that he had made the offer.
Grant made a similar offer to Winstead the next day, asking for $30,000 for the 60 shares and $20,000 for the final payment on the note and the eight shares from the original sale to Winstead. Winstead again said he would think about it. He later made a counteroffer and the parties negotiated the transaction which has been described above.
There was little or no evidence that Grant relied on any alleged misrepresentations by Winstead in selling his stock. Instead, he relied on the initiative of Burford, who decided to sell for reasons independent of any financial reports or information promulgated by Winstead. After making the offer, Burford talked to Jim Snow, an independent C.P.A. who audited the firm's annual statements. Burford could not remember whether Grant went with him to Snow on this occasion, but testified that he and Grant discussed the firm's finances with Snow on numerous occasions. Snow was Grant's personal accountant and prepared his income tax returns. Winstead testified that Grant requested two payments of $15,000 for the stock in 1978 and 1979 on Snow's advice. Thus, not only did the evidence show that Grant acted on Burford's initiative, but also that he had independent, competent advice, or at least ready access to it, from Snow.
Grant's claim of breach of fiduciary duty raises the additional charge that Winstead, having superior knowledge of the true value of the stock, had a duty of good faith and fair dealing in purchasing the stock. Grant argues that Winstead breached this duty when he accepted Grant's and Burford's offers without disclosing that the stock was worth approximately six times more than they were asking for it.
Grant bases the assertion of a duty of good faith and fair dealing on the rationales of such cases as Belcher v. Birmingham Trust National Bank, 348 F. Supp. 61 (N.D.Ala.1968); Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978); and Dockum v. Lloyd, 647 P.2d 459 (Okla. App.1982). From our own research we would include, as expositive of the principle, Ingalls Iron Works Co. v. Ingalls Foundation, 266 Ala. 656, 98 So. 2d 30 (1957); Western Grain Company Cases, 264 Ala. 145, 85 So. 2d 395 (1955); Barnett v. Kirshner, 527 F.2d 781 (2d Cir.1975); Dresden v. Willock, 518 F.2d 281 (3d Cir. 1975); Helms v. Duckworth, 249 F.2d 482 (D.C.Cir.1957); and Childs v. RIC Group, Inc., 331 F. Supp. 1078 (N.D.Ga.1970).
The federal court in Belcher made an excellent statement of the principle:
Belcher v. BTNB, supra, 348 F. Supp. at 137-38.
*40 While we think the principle is sound, the difference in familiarity with the operation of the business between Grant and Winstead was not so great as to invoke a fiduciary duty on Winstead's part to make further disclosures. In Belcher and other cases finding a breach of duty, such as Dresden, the offending director was the active manager of the business and the plaintiff stockholders either were not involved in the day-to-day operation of the business or were dominated by the offending director.
Neither of these is true of Grant. Not only was he working in the firm every day, he was privy to the regular meetings of the board of directors where the company's situation was openly discussed. The reports submitted by Winstead showed the favorable cash and equity positions of the company. These reports were in Grant's possession and a cursory examination of them would have revealed that the company had substantial assets. We do not see that Winstead should be held to a duty of revealing anything more than he did.
This case is closely analogous to Baylor v. Jordan, 445 So. 2d 254 (Ala.1984). This Court held that there was no fiduciary duty between the plaintiff and defendant, officers and directors of a closely-held corporation, because they were dealing with each other as shareholders. Thus, defendant had no duty to disclose the participation of a bank officer who was helping finance defendant's purchase of plaintiff's stock.
Finally, Grant argues that the trial court erred in directing a verdict for Winstead on the count alleging violation of Code 1975, § 8-6-17. The court did not err in directing a verdict, because the statute requires a fraud, an untrue statement of a material fact, or a failure to state a material fact necessary to prevent misleading. As the discussion above points out, Grant did not prove that Winstead did any of these things.
For the reasons above, the trial court committed no error in concluding that Grant did not produce a scintilla of evidence to support his claims; therefore, the judgment notwithstanding the verdict is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur.
[1] For convenience of reference, we shall refer to positions taken by Grant's executrix as though taken by Grant himself.
[2] Snook died in 1973 and Adams in 1974. The corporation purchased their shares and held them as treasury shares.
[3] The Board of Directors had terminated Braswell's employment with the company in August 1976, so his shares were not involved in this transaction.
[4] The book value at the time was several times more than what Grant received. | August 30, 1985 |
b2f747b1-c7dc-42d8-aac0-5746c8582374 | Ex Parte Chandler | 477 So. 2d 360 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 360 (1985)
Ex parte Terry W. CHANDLER.
(In re FIRST SOUTHERN DEVELOPMENT CORPORATION, et al. v. Terry W. CHANDLER).
84-1009.
Supreme Court of Alabama.
September 27, 1985.
*361 Richard G. Alexander of Alexander & Knizley, Mobile, for petitioner.
Bradley R. Byrne and Thomas Troy Zieman, Jr. of Miller, Hamilton, Snider & Odom, Mobile, for respondents.
TORBERT, Chief Justice.
This is a petition for a writ of mandamus directed to Judge Ferrill D. McRae of the Circuit Court of Mobile County. The writ is hereby granted.
On or about May 1, 1981, a general partnership ("Marina Bay") was formed for the purpose of purchasing and developing certain real estate in Fort Walton Beach, Florida, for a condominium project. At all times relevant to the issues at hand, Chandler, the petitioner, was a 25% owner-partner and First Southern Development Corporation, the respondent, was a 75% owner-partner. On May 20, 1981, respondent First Southern Development loaned to the Marina Bay partnership the sum of $2.1 million, represented by a mortgage note payable in one year and secured by a mortgage on the Marina Bay condominium project and by Chandler's personal endorsement guarantee. A majority of the condominium project units have been released from the mortgage by the action of First Southern Development, but Chandler's personal guarantee remains to secure his liability on the note. First Southern Development has not allowed the releases to reduce Chandler's liability in any amount.
In January of 1984, First Southern Federal Savings & Loan Association, a separate and distinct entity from First Southern Development but related in a parent-subsidiary context, loaned to Chandler individually the sum of $50,000 to purchase other real estate. This debt was represented by a personal note due July 16, 1984, and secured by Chandler's assignment of the interest in Casa Blanca Resort Condominiums owned by Chandler Land and Mortgage Company, Inc. This corporation is wholly owned by Chandler, and the interest in Casa Blanca Resort Condominiums is worth much more than the $50,00 debt it secures.
The major issue in this case involves interpretation of the $50,000 secured note. This note contains a "future advance clause" which broadly directs that
This clause is also termed a "cross-collateralization clause," a "cross-security clause," or, in some circumstances, a "dragnet clause."
*362 The note also contains an assignability clause, which states:
Both notesthe $2.1 million note and the $50,000 secured noteare overdue and unpaid. On January 18, 1985, presumably for the sole purpose of collecting on the $2.1 million note, First Southern Development purchased the $50,000 secured note from First Southern Federal Savings & Loan Association and was assigned all rights in the note. Consequently, First Southern Development was the owner of both notes and sought, on the same day, to foreclose upon the Casa Blanca condominium interest collateral to satisfy not only the $50,000 loan which it originally secured but also Chandler's liability on the $2.1 million note.
Chandler strongly objects to the foreclosure and forced sale and has tendered $65,000 into the Circuit Court of Mobile County to pay the $50,000 secured note. However, First Southern Development has refused this amount and demands the amount tendered plus Chandler's 25% liability on the $2.1 million note (a total of $917,363.44) to halt the foreclosure sale and redeem the collateral. This sale was scheduled, then enjoined by a temporary restraining order issued in the eleventh hour, and has been ordered once again. A petition for a writ of mandamus is before us now praying that the order be set aside, the petitioner contending that this use of the cross-collateralization-future advance clause is improper because the two debts were not between the same parties.
Chandler lacks an adequate remedy at law due to the unique nature of the collateral and would suffer an irreparable injury from a foreclosure sale; therefore, mandamus may be used as a remedy to protect a clear legal right. Ex parte Jones, 447 So. 2d 709, 713 (Ala.1984); Ex parte Southway Discount Center, Inc., 445 So. 2d 898, 899 (Ala.1984). Mandamus does not normally lie to control the exercise of discretion, but it is nevertheless appropriate to compel an official both to exercise his discretion and to exercise it under a proper interpretation of the applicable law. Assured Investors Life Ins. Co. v. National Union Associates, 362 So. 2d 228, 231-32 (Ala.1978).
Cross-collateralization and future advance clauses are valid in Alabama. Code 1975, § 7-9-204; Underwood v. Jarvis, 358 So. 2d 731, 733 (Ala.1978); First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64, 66 (1939). Such clauses may secure an indebtedness other than that which is specified in the security agreement. Underwood, supra. Likewise, assignment clauses in security agreements are recognized as valid. Code 1975, § 8-5-20. However, no Alabama court has ever construed these two clauses together to allow such action as has been taken here by a third-party assignee.
Alabama case law holds that future advance clauses are valid to extend "the security to other existing indebtedness or to future indebtedness between the same parties." Underwood v. Jarvis, 358 So. 2d 731, 733 (Ala.1978); First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64, 66 (1939). The key term "between the same parties" is prevalent in Alabama cases allowing future advances; however, future advance clauses have not been interpreted to allow a third party to obtain security for an otherwise unsecured loan in this manner. This is the recognized policy throughout the United States. See, e.g., Thorp Sales Corp. v. Dolese Bros. Co., 453 F. Supp. 196, 200 (W.D.Okla.1978); Kimbell Foods, Inc. v. Republic National Bank of Dallas, 557 F.2d 491, 495 (5th Cir.1977); First National Bank in Dallas v. Rozelle, 493 F.2d 1196, 1202 at n. 3 (10th Cir.1974); Hudson v. Bank of Leakesville, 249 So. 2d 371, 374 (Miss.1971); Wood v. Parker Square State Bank, 400 S.W.2d 898 (Tex. 1966); Moss v. Hipp, 387 S.W.2d 656 (Tex. 1965); First v. Byrne, 238 Iowa 712, 28 *363 N.W.2d 509, 511-13 (1947); Strong Hardware Co. v. Gonyow, 105 Vt. 415, 168 A. 547, 548 (1933); First National Bank v. Combs, 208 Ky. 763, 271 S.W. 1077 (1925); Lightle v. Rotenberry, 166 Ark. 337, 266 S.W. 297 (1924); Provident Mutual Building Loan Ass'n v. Shaffer, 2 Cal. App. 216, 83 P. 274 (1905).
The respondent contends that this Court is bound by the adverse holding in Hulsart v. Hooper, 274 F.2d 403 (5th Cir.1960). In Hulsart, Hooper mortgaged his goods to Hulsart and five partners in 1952 with a future advance clause contained in the note. In 1957, Hooper gave another mortgage note to Hulsart, individually, which also contained a future advance clause. In 1958, the five partners assigned their rights in the first mortgage to Hulsart. Hulsart was allowed to use the future advance clause of the first mortgage to secure the second mortgage. Both Hulsart and Hooper were parties to each of the two mortgages, although other persons were involved in the first mortgage, and the Fifth Circuit decided this case under the Bain rule of "between the same parties." This is clearly not the situation in the present case.
Grant Gilmore, a noted authority on the subject of secured transactions, compares the situation at hand to a "case of outright fraud" and labels it a misuse of the future advance clause. 2 G. Gilmore, Security Interests in Personal Property 917-20 (1965). Gilmore states that an overreaching mortgagee could easily exploit the future advance device if such a use is allowed. Gilmore at 918.
Cases which have considered this precise problem have ruled against the use of future advance clauses as attempted here for a wide variety of reasons. The case of Wood v. Parker Square State Bank, 400 S.W.2d 898, 902 (Tex.1966), gives a summation of the different reasons as follows:
It is elementary in this contractual setting that the contemplation and intent of the debtor must be considered. Whether other debts between the same parties are secured under a future advance clause depends on the intention of the parties. Malkove v. First National Bank of Mobile, 295 Ala. 191, 195, 326 So. 2d 108, 111 (1976); Crescent Credit Corp. v. Union Bank & Trust Co., 51 Ala.App. 683, 686, 288 So. 2d 744, 746 (1974). We are unable to find any evidence that Chandler ever contemplated or intended for Chandler Land and Mortgage Company's interest in Casa Blanca Resort Condominiums to be used as security for the $2.1 million note. Nor can we say that the "consent of the debtor to its inclusion may be inferred." Gilmore at 932.
We are not to be understood to hold that clear and unambiguous contractual language could not circumvent the policy as stated above. But in this case, we are unable to find such language. The respondent relies on two fineprint, separated, and extremely broad clauses and asks that they be construed together to reach a remedy of *364 foreclosure. This cannot be said to comply with the Bain standard that "[i]f a debtor owes several notes, and gives a mortgage expressly securing one, any intention to cover other existing notes should be quite clear and explicit." Bain, supra, 237 Ala. at 583, 188 So. at 67.
For the reasons set forth, the circuit court erred in its order allowing the use of the cross-collateralization clause to secure both notes.
WRIT GRANTED.
MADDOX, FAULKNER, JONES, ALMON, BEATTY, ADAMS and HOUSTON, JJ., concur. | September 27, 1985 |
b78acf14-f1d1-45a5-baf8-555f36be9a29 | Hargress v. City of Montgomery | 479 So. 2d 1137 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1137 (1985)
Willie Mae HARGRESS, Administratrix of the Estate of William Hargress, Deceased
v.
The CITY OF MONTGOMERY and Eula Oliver.
84-59.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied October 25, 1985.
*1138 Oscar W. Adams III, Birmingham, and J.L. Chestnut of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
Robert C. Black and Randall Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
MADDOX, Justice.
This case arises out of the shooting death of William Hargress by a Montgomery City police officer, Eula Oliver. The administratrix of Hargress's estate sued Oliver and the City of Montgomery, alleging that the agents of the City of Montgomery "negligently, wrongfully, and by omitting to do what was reasonable, wrongfully" killed Hargress. In addition, plaintiff alleged that the City was negligent in its "regulations, policies, practices and customs." The jury returned a verdict for defendants, and plaintiff appeals.
Plaintiff presents four issues for our review, as follows: (1) whether the trial judge erred in allowing the defendant to rehabilitate Oliver's partner by eliciting from him a prior consistent statement; (2) whether the trial court erred in its instructions to the jury; (3) whether the trial judge should have recused himself, and (4) whether the court erred in not allowing the introduction of plaintiff's exhibit five. After reviewing the record, we find plaintiff's contentions to be without merit.
The plaintiff attempted to impeach officer Anthony Simmons as to whether the deceased was "flailing in the air" or "swinging" at officer Oliver. The plaintiff, *1139 relying on Simmons's prior deposition, asked Simmons the following questions:
The defendants then attempted to rehabilitate Simmons by asking him whether he had previously stated that Hargress was swinging at Oliver:
Plaintiff asserts that it was error for the trial court to allow Simmons to be rehabilitated after he had been impeached. We disagree. The plaintiff chose to use a limited part of Simmons's deposition in order to try to impeach him. The defendant then questioned Simmons as to statements made in the same deposition which tended to show that Simmons's present testimony was not inconsistent with that given at the deposition hearing. Rule 32, Ala.R.Civ.P., provides, in part:
In the present case, we hold that the trial court properly allowed the defendants to question Simmons concerning additional consistent statements made in the same deposition.
Plaintiff further claims that the trial court erred in giving the following jury instruction:
Prior to recharging the jury on this issue, the following exchanges occurred between the trial court and the plaintiff's counsel:
Afterwards, the appellant's counsel objected to the consideration of self-defense by the jury in regard to both negligence and wantonness. Plaintiff here argues as reversible error only the giving of the instruction as it relates to wantonness.
Despite plaintiff's contention, the trial court did not instruct the jury that self-defense was a defense to wantonness. A review of the entire charge indicates that the trial judge did instruct the jury that self-defense was one of the factors that could be taken into consideration in its consideration of the wantonness claim. From the above quoted portion of the record, it appears that plaintiff's counsel had originally agreed that "[s]elf-defense ... [was] part of the standard of care." In any event, under Rule 51, Ala.R.Civ.P., "reversible error occurs only when that error is prejudicial, when the trial court's instructions are viewed as an entity." Underwriters National Assurance Company v. Posey, 333 So. 2d 815 (Ala.1976). Viewing the jury instruction in its entirety, we find that there has been no prejudice to the plaintiff.
Assuming, however, that the court did instruct the jury that self-defense could be a defense to the wantonness count, we, nevertheless, still hold that no error occurred.
In McGehee v. Harris, 416 So. 2d 729, 731 (Ala.1982), the Court made the following observations regarding wantonness:
In determining whether Eula Oliver was guilty of wantonness, as defined in McGehee v. Harris, the jury clearly could have considered whether she was acting in selfdefense at the time.
*1141 We believe that Alabama law is clear to the conclusion that self-defense can be pleaded in an action for wrongful death. In Breed v. Atlanta, B. & C.R. Co., 241 Ala. 640, 4 So. 2d 315 (1941), the plaintiff filed suit under three counts, the first two alleging negligence and the third alleging "wanton, willful, or intentional conduct." The Court held, on rehearing, that any contention that a defendant is precluded under the homicide act from pleading selfdefense is clearly without merit. There, the Court held:
241 Ala. 640, 645, 4 So. 2d 315.
Additional authorities are: Ashworth v. Alabama Great Southern R. Co., 211 Ala. 20, 99 So. 191 (1924) (self-defense was pleaded as a defense to complaints alleging that the death was a "wrongful act" and that the intestate was "wrongfully and intentionally" shot, and the Court wrote, "In [a] ... civil action the burden of proof in establishing the several elements of self-defense is as declared for a criminal case"); Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546 (1922) (self-defense allowed in an action alleging that the decedent was "wrongfully" killed); Suell v. Derricott, 161 Ala. 259, 49 So. 895 (1909) (self-defense was recognized as a defense to the plaintiff's action which alleged wrongful death resulting from the decedent's having been "unlawfully and intentionally" shot).
Based on the foregoing authority, we hold that the court did not err in instructing the jury that it could consider self-defense "as part of the standard of care"; nor would there have been error in instructing the jury that self-defense was a defense to wantonness.
Plaintiff further complains that the court failed to give requested jury charges No. 19 and 21. The record indicates that the plaintiff failed to object to the failure of the court to give jury charge No. 19, and that regarding jury charge No. 21, the plaintiff's counsel failed to state the specific grounds of his objection.
Plaintiff failed to sufficiently preserve any error as to either requested charge. Ala.R.Civ.P., Rule 51; Barksdale v. Pendergrass, 294 Ala. 526, 319 So. 2d 267 (1975).
Plaintiff asserts that because the trial judge once represented the City of Montgomery, he should have recused himself. Plaintiff states in her brief:
We hold that the trial judge was not disqualified from hearing the case. It is settled in Alabama that a mere accusation of bias unsupported by substantial facts does not require disqualification of the judge. Ross v. Luton, 456 So. 2d 249 (Ala. 1984). It is thus incumbent upon the party alleging bias to bring forth evidence to support his contention. Taylor v. Taylor, 387 So. 2d 849 (Ala.Civ.App.1980). In the present case, plaintiff merely alluded to a possible bias, without any supporting evidence; we therefore find that the trial judge did not err in refusing to recuse himself.
Plaintiff assigns as error the trial court's refusal to admit plaintiff's exhibit number five. The exhibit, according to plaintiff's brief, consisted of a "memorandum to Chief C.E. Swindall of the Montgomery Police Department from Major Sam Hicks, Jr." She says "the memorandum recommended that Officer Eula Oliver be dismissed because, as an officer, in Major Hicks's opinion, she could not properly perform her duties, having been engaged in voodoo activities, and he believed it would be impossible to get anyone to work with her without giving them a direct order."
The trial judge stated that he would allow plaintiff to introduce the fact that Oliver had been evaluated, but he would not allow evidence of voodoo activities to be admitted. The trial judge ruled that the probative value of Oliver's possible involvement in such activities was outweighed by its prejudicial value.
We do not believe the trial court abused its discretion in refusing to admit plaintiff's exhibit.
This Court, in Phoenix Ins. Co. of New York v. Leonard, 270 Ala. 427, 119 So. 2d 217 (1960), quoting Judge McElroy on The Law of Evidence in Alabama, held:
270 Ala. at 430, 119 So. 2d at 219.
For all of the above-stated reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | August 30, 1985 |
59384df4-5a3b-4a34-8821-e3f39a6a6ffb | Ex Parte Horsley | 476 So. 2d 626 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 626 (1985)
Ex parte Edward HORSLEY.
(Re Edward HORSLEY v. STATE of Alabama).
83-685.
Supreme Court of Alabama.
September 6, 1985.
Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.
Prior report: 476 So. 2d 623 (Ala.Cr. App. 1983).
PER CURIAM.
Affirmed on the authority of Baldwin v. Alabama, ___ U.S. ___, 105 S. Ct. 2727, 86 L. Ed. 2d 300 (1985).
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON and ADAMS, JJ., concur.
BEATTY, J., dissents.
SHORES, J., not sitting. | September 6, 1985 |
ea1efb4b-a066-4dac-bc83-831767068075 | Donahoo v. State | 479 So. 2d 1188 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1188 (1985)
Julia Cook DONAHOO, as executrix of the estate of Thurman Macon Donahoo, Sr., deceased
v.
STATE of Alabama, et al.
84-159.
Supreme Court of Alabama.
September 27, 1985.
Rehearing Denied November 8, 1985.
Robert H. Ford of Brinkley & Ford, Huntsville, John B. Crawley of Crawley & Jarrell, Troy, for appellant.
Charles A. Graddick, Atty. Gen., and James Rebarchak, Asst. Atty. Gen., for appellees State of Alabama, Ealon Lambert, Jack Lufkin, and John Porter.
Bobby N. Bright, Chief Counsel, and Harry A. Lyles, Asst. Attys. Gen., Ala. Dept. of Corrections, for appellees Britton, Cooper and Hopper.
J. Fairley McDonald III of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellee Fob James.
TORBERT, Chief Justice.
Julia Cook Donahoo, as executrix of the estate of her husband, Thurman Macon Donahoo, Sr., filed a complaint for the wrongful death of her husband, who was murdered by two former state prisoners, Billy *1189 Wayne Waldrop and Henry Mays, who were alleged to have been released from prison before they were legally eligible for parole. The named defendants were the State of Alabama; Governor Fob James; Robert G. Britton, as Commissioner or Administrator of the Department of Corrections; Andrew Cooper, as Deputy Commissioner or Deputy Administrator of the Department of Corrections; Joe S. Hopper, as Commissioner or Administrator of the Department of Corrections; Ealon M. Lambert, as Chairman of the Pardons and Paroles Board; Jack C. Lufkin and John T. Porter, as members of the Pardons and Paroles Board. Mrs. Donahoo also named various fictitious parties as defendants.
The complaint alleged that the defendants, in their official capacities, acted negligently or wantonly; in bad faith, beyond or in excess of their authority; or under a mistaken impression of the "good time" law so as to prematurely and illegally release the two prisoners before they had served their lawful term. The complaint further alleged that in so acting, they were acting under color of state law and violated her husband's civil rights. She also sued under 42 U.S.C. § 1983.
Defendants State of Alabama, Lambert, Lufkin, and Porter filed a motion for summary judgment. Defendants James, Britton, Cooper, and Hopper filed motions to dismiss. Pursuant to Alabama Rules of Civil Procedure, Rule 12(b), we will consider these motions to dismiss as motions for summary judgment. The trial judge granted summary judgment in favor of all defendants on the grounds that there was no genuine issue of material fact. Mrs. Donahoo appeals.
The parties set forth numerous issues for our consideration; however, only three issues are pertinent to our disposition of this case:[1]
1. Whether the defense of sovereign immunity is unavailable to the defendants if they are found to have acted in bad faith, beyond their authority, or under a mistaken interpretation of the law; i.e., in the context of this summary judgment, whether the defense of sovereign immunity requires a judgment in favor of these defendants regardless of these claims or the facts supporting them;
2. Whether the defendants owed a legal duty to the decedent to protect him from the paroled prisoners, and
3. Whether the plaintiff stated a claim under 42 U.S.C. § 1983.
We have previously been confronted with questions regarding the liability of state officials arising from injuries caused by prisoners in two cases; however, in those cases, the allegations were different from those presented here. In Gill v. Sewell, 356 So. 2d 1196 (Ala.1978), a police officer was injured by a work release inmate; the officer sued the work release center, the center director, the Board of Corrections, the Board's commissioner, and the State of Alabama, alleging that the defendants were negligent in allowing a convicted felon with a long history of violent crimes to be released to a minimum security institution. We held that the suit was barred by Ala.Const., art. I, § 14. In Sellers v. Thompson, 452 So. 2d 460 (Ala.1984), the plaintiff alleged that the members of the Board of Pardons and Paroles, while acting within the scope of their authority, negligently and wantonly paroled a prisoner who subsequently murdered the plaintiff's husband. She further alleged that the Board members exceeded their statutory authority in paroling the prisoner because they failed to obtain and review a psychiatric report on the prisoner. We refused to read Code 1975, § 15-22-25, to require a psychiatric report on all inmates who could be considered for parole. We held that *1190 "under our holding in Gill ... the Board members' ultimate decision to grant or deny parole constitutes the exercise of a discretionary function within the ambit of the immunity shield of Ala.Const., art. I, § 14." 452 So. 2d at 461.[2] In Sellers, we pointed out in a footnote that the scope of discretionary function immunity has been expanded "to include allegations of wantonness on the part of State officials sued in their individual capacities where ... there was no evidence of bad faith on the part of the officials." 452 So. 2d at 462, n. 3.[3]
In the present case, we are presented with the additional allegation of bad faith on the part of State officials. In Rigby v. Auburn University, 448 So. 2d 345 (Ala.1984), and Unzicker v. State, 346 So. 2d 931 (Ala.1977), we held that allegations that State officials acted fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law are sufficient to remove the case from the protection of Ala.Const., art. I, § 14. Since the present plaintiff alleged that the defendants acted in bad faith, beyond their authority, or under a mistaken interpretation of the law, we must hold that the defendants were not protected by the terms of Section 14. In other words, those responsible for the release and supervision of prisoners are not entitled to absolute immunity.[4]
Notwithstanding the fact that the defendants were not entitled to summary judgment based on their defense of sovereign immunity, their summary judgment was nevertheless proper because they did not owe any legal duty to the decedent. The plaintiff would have us adopt the position assumed by the Arizona Supreme Court in Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977). In Grimm, the court adopted Restatement (Second) of Torts, § 319 (1966), and held that the Board narrowed its duty from one owed to the general public to one owed to individuals by assuming parole supervision over a person having dangerous tendencies. See also, Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982) (holding that the duty owed by the State was not different from that owed by private litigants).
We disagree with the views expressed in Grimm and its progeny, and we take this opportunity to declare that we will follow the line of cases holding that in order to establish liability on the part of state officials, the plaintiff must plead and prove that the officials knew or should have known that an aggressor might be a danger to a specific individual. "The identification of a specific individual as a potential victim would give rise to a special duty on the part of the officials to take reasonable steps to prevent an attack. In the absence of such a special duty, there could *1191 be no basis for state liability." Orzechowski v. State, 485 A.2d 545, 548 (R.I.1984); Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 80, 614 P.2d 728, 738 (1980).
The courts in Orzechowski and Thompson expressed their rationales for holding that the duty owed by the parole board was a general duty only and would not result in liability on the part of the parole board. The court in Orzechowski emphasized that a contrary holding would undermine the parole board's ability to function properly:
The Thompson court summarized its holding thusly:
See also, Saunders v. State, 446 A.2d 748 (R.I.1982); County of Santa Barbara v. Superior Court, 15 Cal. App. 3d 751, 93 Cal. Rptr. 406 (1971); Evett v. City of Inverness, 224 So. 2d 365 (Fla.Dist.Ct.App.1969) (police officer owed no duty to plaintiff's decedent who was killed by an intoxicated driver after the officer allowed him to continue driving on the public highways).
Since there is no allegation that the defendants had reason to know that Waldrop and Mays posed a threat to Mr. Donahoo in particular, we are compelled to hold that the defendants did not breach a specific duty; and, therefore, no liability can ensue.
As for plaintiff's 42 U.S.C. § 1983 claim that the defendants, by their actions in releasing Waldrop and Mays, deprived the plaintiff's decedent of his life without due process of law, in violation of the U.S. *1192 Const., Fourteenth Amendment, we find Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980), to be dispositive of this issue. In Martinez, a factually similar case, the United States Supreme Court stated:
Since there was no genuine issue as to any material fact and defendants were entitled to judgment as a matter of law, the trial judge properly granted summary judgment in their favor.
AFFIRMED.
ALMON, BEATTY and HOUSTON, JJ., concur.
MADDOX, JONES and SHORES, JJ., concur specially.
FAULKNER and ADAMS, JJ., dissent.
MADDOX, Justice (Concurring specially).
I am of the opinion that mere allegations of bad faith should not strip parole officials of their immunity for acts committed in the course of their duties. In fact, parole officials should be protected by the same absolute immunity afforded judges, because the function of the parole board is more akin to that of a judge than to that of an administrative officer. Pate v. Alabama Board of Pardons & Paroles, 409 F. Supp. 478 (M.D. Ala.1976).
In Pate, plaintiff, whose minor daughter was allegedly raped and killed by an Alabama parolee, brought a civil rights action against the Alabama Board of Pardons and Paroles and three members thereof, who were charged with misfeasance, nonfeasance, and malfeasance in the performance of their official duties. United States District Judge Varner held that the Board of Pardons and Paroles was immune from suit by virtue of the Eleventh Amendment and the doctrine of official immunity, and that members of the Board were absolutely immune from liability under the Civil Rights Act; therefore, he granted the defendants' *1193 motion to dismiss. Judge Varner wrote, as follows:
As a footnote to this last quoted paragraph, Judge Varner added:
409 F. Supp. at 479.
I am of the opinion that parole officials should be protected by the same absolute immunity afforded judges for acts resulting from the performance of their official duties; therefore, I believe that Pate sets out the correct principle of law which this Court should follow in determining whether plaintiff has stated a cause of action under state or federal law. Why do I believe that parole officials are protected by absolute immunity? How broad is that immunity? In my opinion, immunity is necessary, because of the reasons set out in Pate, and it is as broad as that immunity set out in Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). In Stump, an Indiana circuit judge approved a petition filed by the mother of her 15-year-old daughter to have her daughter sterilized. The daughter later filed suit against the judge. He claimed judicial immunity. The Supreme Court of the United States held:
I am of the opinion that Donahoo's complaint, on its face, shows that she is not claiming that the parole officials acted in the "clear absence of jurisdiction." Consequently, I would dismiss her complaint on this ground.
Needless to say, Alabama law is not settled on when and under what circumstances a public official can be sued when an injury results as a consequence of his act, while he is acting in his capacity as a public official. In Unzicker v. State, 346 So. 2d 931 (Ala.1977), this Court permitted a declaratory judgment action to be filed against state officials to have the rights under a deed declared, and to have a mineral lease from the state declared void. The action was grounded on allegations that the officials had acted fraudulently and beyond their authority. Similarly, I authored an opinion in Rigby v. Auburn University, 448 So. 2d 345 (Ala.1984), in which a police officer sought an injunction to compel the University to pay him a salary that conformed with the University compensation for his job classification. This Court held that the agents of the University were not protected by sovereign immunity where the officer alleged that the agents were guilty of fraud and bad faith and had acted beyond their authority. In Sellers v. Thompson, 452 So. 2d 460 (Ala.1984), the widow of a victim of a murder committed by a paroled prisoner filed suit against individual members of the Board of Pardons and Paroles. On appeal, this Court held that: (1) the members could invoke the discretionary function immunity to preclude personal liability for their allegedly negligent or wanton parole of the prisoner; (2) the Board members did not exceed their statutory authority in paroling the prisoner without first obtaining and reviewing a psychiatric report on him and, therefore, they could claim the discretionary function immunity; and (3) the members who voted to parole the prisoner were immune from personal liability under the federal Civil Rights Act of 1871.
Even though the 38-page complaint in this case alleges that the parole officers "acted either in bad faith, beyond and in excess of their authority or under a mistaken impression of the law when they prematurely and illegally released [the two inmates]," the factual allegations in the complaint, construing them most favorably in favor of the plaintiff, claim only that the *1195 parole officials, based on the inmates' records, should not have released them. I do not believe the facts alleged in this complaint are materially different from those alleged in Sellers v. Thompson, supra. In Sellers, after examining the allegations made to support plaintiff's claim, this Court held that no claim was stated. Although Pate, supra, was not cited as authority in support of the denial of plaintiff's state claim, Pate was favorably cited as authority for denial of plaintiff's federal claim. I am of the opinion that this Court should adopt the principle of law in Pate that parole officers have absolute immunity, and this rule should be adopted as a rule to apply to suits against parole officers under Alabama law.
Construing the allegations of the complaint most strongly in favor of the pleader to determine whether the plaintiff could prove any set of facts in support of her claim which would entitle her to relief, I think that the trial court did not err in granting the defendants' motion to dismiss.
JONES and SHORES, JJ., concur.
ADAMS, Justice (dissenting).
I respectfully dissent. Although I agree with the majority that plaintiff has stated a cause of action consistent with the decisions this Court has made in this field of the law, I would not reach the question of duty at this stage in the litigation. Sellers v. Thompson, 452 So. 2d 460 (Ala.1984); Rigby v. Auburn University, 448 So. 2d 345 (Ala.1984); Gill v. Sewell, 356 So. 2d 1196 (Ala.1978); Unzicker v. State, 346 So. 2d 931 (Ala.1977). As strange as it may seem, both parties agreed at oral argument that they had not engaged in discovery before the circuit court granted summary judgment for all defendants. Because of the far-reaching ramifications of this decision, I would remand this case to allow both sides to engage in extensive discovery to determine if the defendants acted in bad faith, beyond or in excess of their authority, negligently or wantonly, or under a mistaken impression of the good-time law when they released the two prisoners involved here before they served their lawful terms. A flushing out of the facts may reveal that the allegations of the complaint do not comport with the facts. Then, and only then, would we reach the issue of duty dealt with in the majority holding.
FAULKNER, J., concurs.
[1] We find it unnecessary to discuss the issue of whether the plaintiff is barred from suing the State by virtue of U.S. Const., amend. 11, since plaintiff's counsel conceded that summary judgment was properly granted in favor of the State. See also, Ala. Const., art. I, § 14. Hereafter, when we refer to "defendants," we are not including the State.
[2] See also Payton v. United States, 679 F.2d 475 (5th Cir.1982). Some states do not distinguish between ministerial and discretionary functions, instead granting such state officials with immunity for all acts connected with the parole of prisoners. E.g., Burg v. State, 147 N.J.Super. 316, 371 A.2d 308 (1977) (plaintiff charged defendants with permitting a prisoner to be at liberty without supervision and in violation of applicable rules and standards of penology); State v. Superior Court, 37 Cal. App. 3d 1023, 112 Cal. Rptr. 706 (1974) (plaintiff alleged that guards permitted inmates to be released despite the fact that these inmates were not eligible for release). In yet another state, the court decides the extent of immunity afforded public officials on a case-by-case method. See Estate of Armstrong v. Pennsylvania, Bd. of Probation, 46 Pa. Cmwlth. 33, 405 A.2d 1099 (1979).
[3] Several categories of cases, however, do not fall within the prohibition of Ala.Const., art. I, § 14. See, Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971), and Unzicker v. State, 346 So. 2d 931 (Ala.1977).
[4] Today's holding is contrary to that of the court in Pate v. Alabama Bd. of Pardons & Paroles, 409 F. Supp. 478 (M.D.Ala.1976). The Pate court said that the allegation of bad faith should not strip parole officials of their immunity for acts committed in the course of their duties. Rather, the court held that such officials should be protected by the same absolute immunity afforded judges, because the function of the parole board is more akin to that of a judge than to that of an administrative officer.
[5] We note, for the sake of parallel, that, in the case at bar, Waldrop was released January 3, 1981, and Mays was released March 15, 1982. Mr. Donahoo was not murdered until June 2, 1982two and one-half months after the release of Mays. The mere fact that the time between the release and the murder was only half as long as the time in Martinez cannot convert the actions of the prisoners into state action. | September 27, 1985 |
18acffb6-5360-46ef-8a34-5fdf14652af8 | Handley v. City of Birmingham | 475 So. 2d 1185 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 1185 (1985)
Dorothy HANDLEY
v.
CITY OF BIRMINGHAM.
84-241.
Supreme Court of Alabama.
August 30, 1985.
*1186 J. Scott Vowell and Richard A. Meelheim of Beddow, Fullan & Vowell, Birmingham, for appellant.
William M. Pate, Jr., Asst. City Atty., Birmingham, for appellee.
TORBERT, Chief Justice.
After a jury verdict in favor of plaintiff Handley, the trial court granted defendant's motion for judgment notwithstanding the verdict. The only issue in this case is whether there was a scintilla of evidence favorable to the plaintiff. Finding such a scintilla of evidence, we reverse and remand.
The plaintiff, Dorothy F. Handley, lives in Birmingham, Alabama. During the evening of October 1, 1981, her home became flooded with raw sewage that backed up through two commodes. The Street and Sanitation Department of the City of Birmingham came to Handley's home and relieved the blockage in the main line of the sewer that caused the sewage to flow into her house. What caused the stoppage is unknown, because when the stoppage was relieved, the pressure washed the material on down the line. A district supervisor of the Street and Sanitation Department testified that the city had knowledge of frequent stoppages in the City's sewer mains and that the City had no policy of periodic inspection and maintenance of the sewer lines. The plaintiff Handley alleged negligence on the part of the City in not properly maintaining the sewer lines. The jury found in favor of plaintiff Handley and awarded her $30,000.00 in compensatory damages. Judgment was rendered for the plaintiff. Two months later, the trial court vacated the previous judgment and granted the defendant's motion for judgment notwithstanding the verdict.
Though there is no absolute liability for sewer system backups in this state, a municipality must still exercise reasonable and ordinary care in the maintenance of its sewer lines. Whitworth v. Utilities Board of the Town of Blountsville, 382 So. 2d 557 (Ala.1980). The only issue in this case is whether there was a scintilla of evidence favorable to the plaintiff on whether the defendant's failure to properly maintain its sewer lines proximately caused damage to the plaintiff's home. The defendant City did not contest the issues of breach of duty or damages. A motion for judgment notwithstanding the verdict should be denied if there is any conflict in the evidence for the jury to resolve, and the existence of such a conflict is to be determined by the scintilla rule. Crigler v. Salac, 438 So. 2d 1375 (Ala.1983). See Rule 50(e), A.R.Civ.P. Issues and questions in civil cases must be submitted to the jury if the evidence, or any reasonable inference therefrom, produces the merest gleam, glimmer, or spark in support of the theory of the complaint. Quillen v. Quillen, 388 So. 2d 985 (Ala.1980). Since the City knew of similar stoppages in its sewer lines, it is a reasonable inference from the evidence in this case that its failure to inspect and maintain the lines could have caused this stoppage and the flooding that resulted. We find that there was at least a scintilla of evidence favorable to the plaintiff so as *1187 to make the question of proximate cause properly within the province of the jury.
The defendant's judgment notwithstanding the verdict is reversed, and the cause is remanded.
REVERSED AND REMANDED.
FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur. | August 30, 1985 |
da4d7369-84e8-4a67-bb3b-5b2ca8ce46fa | Dutton v. Chester F. Raines Agency, Inc. | 475 So. 2d 545 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 545 (1985)
Miles Carl DUTTON
v.
CHESTER F. RAINES AGENCY, INC.
84-174.
Supreme Court of Alabama.
August 23, 1985.
*546 T.J. Carnes of Carnes & Carnes, Albertville, for appellant.
Ralph H. Ford and Joe W. Campbell of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
MADDOX, Justice.
This case involves the alleged failure of an insurance agent to procure insurance with a solvent company.
Plaintiff Chester F. Raines Agency, Inc., hereinafter referred to as "Raines," filed a complaint against Miles Carl Dutton, Charles Dutton, Nelson Gary, and Janet Gary, claiming on an account for insurance premiums. Janet Gary was dismissed as a defendant. Judgment by agreement was rendered against the other defendants for $59,252.77.
Meanwhile, defendants filed a counterclaim. They amended the counterclaim several times, striking all counterclaimants except Miles Carl Dutton and adding additional counts, so that as last amended, the counterclaim consists of five counts.
Court Four is the only count which involves the issue raised on this appeal, and will be the only one discussed in this opinion. In Count Four Dutton alleged that during 1981 and 1982 Raines was engaged in the business of being an insurance agent, and that Dutton at that time was engaged in the trucking business and was in need of insurance on various truck-tractors and trailers and engaged Raines to procure the insurance. Dutton alleged that Raines accepted this engagement and caused the insurance to be placed with Amherst Insurance Company, which was a "surplus line carrier" and was not authorized to transact insurance business in the State of Alabama. Raines placed the insurance with Amherst, according to Dutton, for the purpose of securing the advantage of getting a lower premium rate than one which would be accepted by an authorized insurer. Dutton claims that this was contrary to the obligations and duties of Raines as an insurance agent under the laws of the State of Alabama.
*547 Dutton further alleged that while the policy with Amherst was in force and effect, he experienced a loss on one of the insured vehicles; that the company failed to pay for said loss because the company was in bad financial condition or receivership; and that Dutton experienced great loss, expense, and damage as a result. He claimed damages in the amount of $50,000.00, plus interest and costs.
The facts, as found by the trial court, are as follows:
The trial court, sitting as the trier of fact, rendered a judgment in favor of Raines, and Dutton appeals here. We affirm.
Dutton limits his appeal to Count Four of his counterclaim. Count Four provides, as follows:
Dutton argues that because the trial judge did not specifically address, in his findings, the allegations of Count Four, he misapplied the law to the facts. We decline to accept this argument.
The law in Alabama is that when there is an absence of specific findings of fact by the trial court, this Court will assume that the trial court made those findings necessary to support the judgment, unless those findings would be clearly erroneous and against the great weight and preponderance of the evidence. Barrett v. Odom, May & DeBuys, 453 So. 2d 729 (Ala. 1984). While the trial court may not have specifically addressed Count Four, the court necessarily rejected that claim by rendering a judgment in favor of Raines.
Dutton claims the court erred in finding for Raines.
To establish Raines's liability, Dutton relies on Code 1975, §§ 27-10-1 and 27-10-2. Section 27-10-1 provides, in part:
Dutton argues that § 27-10-1 and 27-10-2 "place upon an agent an absolute liability for 100% of the loss any insured sustains under a policy which that agent writes with a company who is not authorized to do business in the state of Alabama."
Dutton acknowledges that Raines might be exempt pursuant to § 27-10-1(b), which provides:
Nevertheless, Dutton contends that Raines procured the surplus line insurance in violation of § 27-10-20, and by doing so removed itself from the surplus line exception of § 27-10-1(b)(2).
(Emphasis added.)
Dutton argues that § 27-10-1 and § 27-10-2 placed upon Raines, the agent, absolute liability for the loss, because Raines should not have participated "in any way in the procuring of surplus line insurance solely for the reason of price." Dutton claims that the statute imposed upon Raines a duty to protect "Dutton and others like him from themselves."
Presented, as we are, with these claims, we must construe legislative intent insofar as that intent is expressed in the statutes dealing with surplus insurance.
We find that the trial court did not err in holding that the duty of complying with § 27-10-20 was upon a licensed surplus line broker in this case. Once the insurance agent, Raines, with the consent of Dutton, authorized the surplus line broker to procure the surplus line coverage, and Raines authorized the surplus line broker to issue the policy, the court was authorized to find that no other statutory duties were placed on Raines.
Construing the exemption statute, § 27-10-1(b)(2), with the statute placing a duty on the surplus line broker, § 27-10-20 we believe the construction placed on similar statutes by our sister state of Louisiana is uniquely applicable.
In Kline v. Globe Automobile Finance Co., 100 So. 2d 517, 522 (La.1958), the court discussed the surplus line broker's duty to comply with Louisiana's similar statute:
In Kline, the Louisiana court placed upon the broker, and not the agent, the duty of complying with the surplus line statute.
In Bordelon v. Herculean Risks, Inc., 241 So. 2d 766 (La.1970), plaintiffs sought to recover against the individual surplus line broker, the corporate surplus line broker, and the insurance agency. Plaintiff had contacted an insurance agent with Alexandria Insurance Underwriters for the purpose of obtaining a fire insurance policy. The agent was unable to provide the requested insurance coverage through a regularly admitted company and he did not have a license to write surplus line insurance. Thus, the agent contacted a surplus line broker, who informed the agent that he could handle the coverage. A policy was issued by the surplus line broker. Thereafter, a loss was incurred, and it was determined that the insurance company was insolvent. In the plaintiff's suit to recover, the trial court found in favor of Alexandria Insurance Underwriters, but found against the surplus line brokers.
Here, the trial court did not err in finding that "[t]he law places the duty of determining the financial soundness of an unauthorized insurance company upon the surplus line broker," because in Alabama, the duty of determining the financial stability of a surplus line insurance carrier is placed upon the surplus line broker and the commissioner of insurance for the state of Alabama. Section 27-10-26 provides as follows:
The statute places on the commissioner the duty to determine the ineligibility of an insurer to issue surplus line insurance coverage.
Based on the foregoing, we must conclude that the trial court properly applied the law and did not err in finding that the procuring agent was not liable.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | August 23, 1985 |
1fc38920-2abc-40e1-9101-34e074670c41 | Smith v. CITICORP PERSON-TO-PERSON FINANCIAL CENTERS | 477 So. 2d 308 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 308 (1985)
Robert H. SMITH and Ruth P. Smith
v.
CITICORP PERSON-TO-PERSON FINANCIAL CENTERS, INC.
83-1450.
Supreme Court of Alabama.
September 20, 1985.
J. Gusty Yearout and Deborah S. Braden of Yearout, Hardy & Myers, Birmingham, for appellants.
Alan W. Heldman of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal from an order of the Circuit Court of Jefferson County granting summary judgment in favor of plaintiff-appellee, Citicorp Person-to-Person Financial Centers, Inc. (hereinafter Citicorp). This case arises from a bill of foreclosure filed by Citicorp against the defendants-appellants, Robert H. Smith and Ruth P. Smith (hereinafter the Smiths) to foreclose on a real estate mortgage securing a loan from Citicorp to the Smiths. In their answer to Citicorp's bill of foreclosure, the Smiths defended and counterclaimed against Citicorp, alleging that Citicorp charged a usurious rate of interest on the loan transaction in deliberate violation of Code 1975, § 5-19-3(a)(2); that the loan was unconscionable *309 and unenforceable; and that the Smiths were induced to enter into the loan agreement by the fraudulent representations of Citicorp. Citicorp moved for summary judgment on the bill for foreclosure and against the counterclaim of the Smiths. The trial court granted the motion in favor of Citicorp as to the bill of foreclosure, and against the Smiths on all counts of the Smiths' counterclaim. The Smiths bring this appeal following the trial court's denial of a motion to reconsider.
The lone issue on appeal is whether the trial court was correct in granting summary judgment. We hold that the trial court was correct and affirm its decision.
The suit arose from the following facts:
In June 1978, the Smiths secured a loan from Citicorp. The loan agreement was desribed by Citicorp as an "open-end" transaction that provided for a "revolving line of credit" not to exceed $75,000.00. Under the terms of the agreement, the Smiths were entitled to request from Citicorp advances up to the credit limit subject to "lender's continuing approval of borrowers' credit." The Smith borrowed essentially the entire amount of available credit under the agreement, paying off the balance of a previous loan and utilizing the remainder of the proceeds for improvements to their home. In October 1978, the Smiths entered an identical transaction. The Smiths sought and obtained an additional $17,000.00 from Citicorp. The amount requested exceeded the credit limit of the original agreement, so a new "revolving loan agreement" was executed which included the previous indebtedness and increased the credit limit to $92,594.88. The loan was secured by a mortgage on the Smiths' residence and reflected an annual percentage rate of interest of 13.99 per cent. Repayment of the loan was to be made in 180 monthly installments of not less than $1,233.00. The Smiths made the minimum monthly payments under this agreement until October 1981. Upon default by the Smiths, Citicorp filed its bill of foreclosure on December 22, 1981. After a long and extensive period of discovery, during which time much of the 900 page-record on appeal was developed, the trial court granted summary judgment to Citicorp.
Jehle-Slauson Const. Co. v. Hood-Rich Architects, 435 So. 2d 716 (Ala.1983). No specific grounds for the trial court's order of summary judgment were stated, however, when the trial court makes no formal findings of fact, the reviewing court will assume that the trial court made those findings which will justify the decree rendered. Barrett v. Odom, May, & DeBuys, 453 So. 2d 729 (Ala.1984); Sims v. Reinert, 285 Ala. 658, 235 So. 2d 802 (1970); Dockery v. Hamner, 281 Ala. 343, 202 So. 2d 550 (1967).
Although several issues are brought in this appeal, the dispositive question is whether there was a genuine issue of material fact raised by the evidence presented that the loan from Citicorp was not a bona fide open-end transaction.
The Smiths contend that the Citicorp loan was not a bona fide open-end transaction, but rather, a closed-end loan disguised as a revolving loan account. The Smiths argue that on a closed-end loan in substance, the *310 permissible interest rate on it was eight percent add-on pursuant to Code 1975, § 5-19-3(a)(3), and not one and one-half percent per month on the unpaid balance as allowed by Code 1975, § 5-19-3(c), for open-end loans. Furthermore, the Smiths assert that no future advances were intended to be made by Citicorp under the loan; that the loan was merely a scheme by which Citicorp extracted usurious interest in deliberate violation of the law; and that Citicorp fraudulently represented to the Smiths that the loan was open-ended.
Citicorp argues that the loan was an open-end credit plan as defined by law and that the interest rate was permissible. Moreover, Citicorp contends that because the Smith loan was open-ended there was no fraudulent misrepresentation as to the nature or effect of the loan agreement.
The Smiths assert that as to the nature of the loan agreement there exists a material issue of fact which precludes summary judgment. We disagree. In Collier v. Brown, 285 Ala. 40, 44, 228 So. 2d 800, 803, the Court observed:
The words of a contract are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract. Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025 (Ala.1983); Sisco v. Empiregas, Inc. of Belle Mina, 286 Ala. 72, 237 So. 2d 463 (1970). Code 1975, § 8-8-5(a), provides:
Code 1975, § 5-19-1(5), defines "open end credit plan": "a plan prescribing the terms of credit transactions which may be made thereunder from time to time and under the terms of which a finance charge may be charged from time to time on an outstanding unpaid balance." In addition, Code 1975, § 5-19-4, provides for certain additional charges for default and dictates allowable methods of prepayment interest calculations. Open-end credit plans are expressly excluded from Code 1975, § 5-19-4, and, therefore, such plans shall not contain the provisions of this section. The agreement at issue here contains none of these provisions. Although open-end credit plans are commonly utilized by retail stores and oil companies for the sale of goods and merchandise, a plain reading of the aforesaid Code provisions reveals no legislative intent to limit such transactions to these circumstances. The Code does not purport to prohibit a creditor making a cash loan in excess of $2,000.00 from charging one and one-half percent per month on the unpaid balance, provided that the transaction complies with the code requirements for an open-end loan. Examining the four corners of the loan agreement, it appears that the transaction complies with all applicable code provisions and is an open-end loan on its face.
When the terms of a contract are clear and certain, it is the duty of the court and not the jury to analyze and determine the meaning of the contract. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So. 2d 657 (1975). Moreover, if an instrument is unambiguous, its construction *311 and effect are questions of law which may be decided by summary judgment. Warrior Drilling & Engineering Co. v. King, 446 So. 2d 31 (Ala.1984); Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So. 2d 314 (Ala.1979). The contract in the present case is such an instrument and we find that there is no material issue of fact created by the clear terms of the contract as to the nature of the loan.
The Smiths argue that the court may look to parol evidence to determine the intent of Citicorp in the making of the Smith loan. Affidavits of two former Citicorp employees were offered to prove that Citicorp never intended to make future advances under the Smith loan, and it is argued that this evidence raises a genuine issue of fact that Citicorp fraudulently misrepresented the nature of the loan. We are asked to look beyond the written contract to determine the true intent of the parties.
This Court has long held that absent some evidence of fraud in procuring a party's signature or concealing or misrepresenting the contents of the contract, a party to the contract cannot contradict the instrument by a parol agreement made at the time of execution and that evidence which tends to contradict, vary, or alter the terms of the contract is not admissible. Racquetball of Mobile, Inc. v. Wisser, 429 So. 2d 1020 (Ala.1983); Blake v. Coats, 292 Ala. 351, 294 So. 2d 433 (1974); Steiner Bros. v. Slifkin, 237 Ala. 226, 186 So. 156 (1939). Moreover, absent a clear showing of fraud, the court will not look to parol evidence to determine the intent of the parties. Jehle-Slauson Constr. Co. v. Hood-Rich Architects, supra.
In the present case, the evidence presented by the Smiths was not sufficient to bring the loan transaction within the fraud exception to the parol evidence rule. The deposition testimony of Mr. Smith supports this conclusion:
Clearly, Mr. Smith admits that there was no representation made by Citicorp that in any way altered the unambiguous language of the loan agreement.
Despite the absence of a showing of fraud in the inducement or contents of the agreement, the Smiths argue that Citicorp never intended to make additional advances under the agreement and that, had such advances been requested, they would not have been forthcoming. The record shows that the Smiths never requested an additional advance. Had a request been made for additional sums under the agreement and had that request been refused by Citicorp, a question of fact negating summary judgment may have arisen. Based upon the facts as they exist, however, the probable result of a request for additional advances is speculative and a scintilla of evidence will not be inferred by mere speculation. Arrington v. Working Woman's Home, 368 So. 2d 851 (Ala.1979); Rota v. Combs, 267 Ala. 50, 99 So. 2d 692 (1958).
We also find that the evidence offered by the Smiths' affidavits of the former Citicorp employees is inadmissible and, therefore, does not raise an issue of material fact. Rule 56(e), A.R.Civ.P., provides:
*312 "... affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Both affidavits run afoul of the requirements of Rule 56(e). First, as previously stated, the consideration of these affidavits in light of the unambiguous terms of the loan agreement, which admittedly contains the entire agreement of the parties, would fly in the face of the prohibition of parol evidence to vary, alter, or contradict the contract. See Racquetball of Mobile, Inc. v. Wisser, supra; Smith v. Northside Restaurant Corp., 430 So. 2d 870 (Ala.1983); Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala.1978). Second, the affidavits do not affirmatively show that the affiants have the requisite knowledge and that they are competent to testify about the transaction at issue. Both requirements are necessarily mandatory. Day v. Merchants Nat'l Bank of Mobile, 431 So. 2d 1254 (Ala.1983); Butler v. Michigan Mut. Ins. Co., 402 So. 2d 949 (Ala.1981). Neither affidavit shows that the affiant has personal knowledge of the Smith loan, nor any knowledge of the circumstances surrounding that particular transaction. Whatever familiarity these former employees have with regard to other transactions of Citicorp does not make them competent to testify, nor is it relevant to establish evidence of fraud in the instant case.
The record reflects that the trial court allowed extensive discovery over an extended time period. The Smiths were given an ample opportunity to uncover evidence to develop their theory in this action; however, the admissible and competent evidence offered by the Smiths fails to raise an issue of material fact. There being no fact question present, there exists only a question of law, appropriate for summary judgment, and one we hold that the trial court correctly decided. The judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON and BEATTY, JJ., concur. | September 20, 1985 |
f0bbc04f-42db-4db2-91e9-4ac746ba1d4a | Morrison v. Boyd | 475 So. 2d 509 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 509 (1985)
Travis MORRISON
v.
Velma BOYD.
83-601.
Supreme Court of Alabama.
August 23, 1985.
*510 John S. Casey, Heflin, for appellant.
J.M. Sides and Thomas E. Dick of Sides, Oglesby, Held & Dick, Anniston, for appellee.
MADDOX, Justice.
This is an appeal taken in a lawsuit between coterminous owners to determine the boundary line separating their land. The action began when plaintiff-appellee Velma Boyd sued defendant-appellant Travis Morrison, alleging that she was owner of certain real estate described in the complaint and that the defendant was the owner of other real estate with a common boundary line between the two. Plaintiff alleged that a dispute between the parties had arisen as to the location of the correct boundary line between them on the east of defendant Morrison's property and the west of her property. Morrison filed a responsive pleading and, upon a suggestion by the attorneys for the respective parties the court entered an order allowing a survey of the property for use in the determination of the true boundary line between the two parties. The survey was performed by James Barry, a registered, licensed surveyor. The guardian for defendant Morrison filed her answer, in which she denied the material allegations of the complaint and, while admitting that a dispute had arisen between the parties as to the correct location of the boundary line between them, the defendant claimed title to the land on his side of an old fence and further alleged that he and his predecessors in title had been in possession of the property to the fence for more than twenty years and that the old fence is still visible and had been noted on the plat prepared by the surveyor, which was admitted into evidence at the trial.
The case was tried before the court without a jury, and the court entered a judgment establishing the boundary line between the parties according to a description prepared by the surveyor. Morrison argues that the court erroneously ignored the old fence line in making its judgment.
Subsequently, Morrison filed a motion to alter or amend the judgment or, in the *511 alternative, for a new trial, in which he claimed that the judgment was contrary to the law and the facts, and contrary to the great weight and preponderance of the evidence in the case. Morrison contended that the court failed to consider the overwhelming preponderance of the evidence as to adverse possession by the defendant Morrison up to and including the fence line as platted by the surveyor. Morrison further claimed that the court failed to consider that all of the witnesses who testified in the case testified as to the existence of the fence and the location as platted by the surveyor, and that some of the witnesses had testified the fence had been in that location for some forty years. Morrison further claimed that the court failed to consider the claim of adverse possession to that strip of land on his side of the fence.
The trial court entered an order denying Morrison's motion to alter or amend the judgment or in the alternative to have a new trial. He appealed.
Morrison's main argument on appeal is that the evidence showed he had acquired title to the land up to the old fence shown on the Barry survey. Appellee Boyd naturally disputes Morrison's claim and contends that there was sufficient credible evidence to support the trial judge's decree. We have reviewed the record and are convinced that the trial judge did not err.
The respective deeds of the parties were introduced into evidence, and, although the deeds are not well drafted and are somewhat vague in that references are made to such things as "where a holly bush formerly stood" and a "rock corner," the surveyor testified that he established the disputed corner by reference to Morrison's deed. There was also testimony that Boyd had always claimed the property the court found to be hers and that at one time she cut timber up to and over the line claimed by Morrison.
While the various witnesses were testifying, they would indicate a point on the survey; the court reporter, in the transcript, has included the word "(indicating)" several times in the transcript of the evidence to show when a witness would point to a place on the survey.
The survey made by Barry shows a winding creek running through the property of both parties. There are bends in this creek and the surveyor has noted that "Boyd believes this bend to be on the line"; at another bend of the creek, the surveyor noted, "Morrison believes this bend to be on the line." These notations by the surveyor show the dispute between the coterminous owners as to the location of the north-south boundary line between them. Suffice it to say that the evidence was in conflict, and the trial judge had to make a decision. Was his decision erroneous? We think not.
Our scope of review is set out in Francis v. Tucker, 341 So. 2d 710 (Ala. 1977), as follows:
341 So. 2d at 711-12.
Morrison contends that he proved adverse possession because he showed the existence of an old fence along the line he claimed as the boundary line. Certainly that was evidence which would support his view of the case, but it is not conclusive on *512 his claim of adverse possession. The law is well settled that when a party claims title to land by adverse possession, the presumption is in favor of the record owner and a heavy burden of proof rests on the one claiming by adverse possession. Clear and convincing proof is required. Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616 (Ala.1980). One claiming adverse possession must show that his possession of a definite tract was actual, hostile, open, notorious, exclusive, and continuous for the statutory period of time. Knowles v. Golden Stream Fishing Club, Inc., 331 So. 2d 253 (Ala.1976).
We are of the opinion that the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | August 23, 1985 |
9ceb4e9a-e6e2-4ca9-b54e-d077d384dd06 | Sanders v. White | 476 So. 2d 84 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 84 (1985)
E.E. SANDERS and Joann Sanders
v.
Thomas L. WHITE and Karen T. White.
84-336.
Supreme Court of Alabama.
August 30, 1985.
Stephen M. Langham, Prattville, for appellants.
Clifford W. Cleveland, Prattville, for Karen T. White.
J. Robert Faulk, Prattville, for Thomas L. White.
FAULKNER, Justice.
Elbert and Joann Sanders appeal from a summary judgment granted in favor of defendants-appellees in a real estate fraud case. We affirm.
*85 The facts presented in this case are contained in the plaintiffs' answers to request for admissions, answers to interrogatories, the depositions of both plaintiffs, and the deposition of Mr. White, a co-defendant.
Mr. and Mrs. Sanders purchased a home from the Whites in October of 1981. Approximately five months after the purchase, the roof began to leak and subsequently the decking was found to be damaged. The Sanderses allege that the Whites actively concealed known defects relative to the roof and supporting structures and thereby induced them to purchase the house. Both Mr. and Mrs. Sanders stated in their depositions that no representations were made to them by either Mr. and Mrs. White or Ronald Mills, the Whites' real estate agent, concerning the house or the roof. However, the listing of the house in the multiple listing directory contained the following phrase: "Book cases stay, part of drapes stay, storm windows stay and new roof-recently added." Mr. Sanders further stated that upon observation of the house it appeared to have a new roof. The Sanderses were given ample opportunity to inspect the house and did so personally three or four times by walking through the house and looking into the attic. They also arranged for inspection by an air-conditioning and heating company and a pest control company.
Mr. White stated that he indicated to Mr. Mills, his real estate agent, that he had put new shingles over the old shingles but that he did not specifically state that a new roof was put on the house. The multiple listing document was completed by Mr. I.L. Tatum and not by Mr. White or Mr. Mills. Mr. White also stated that he had never seen the multiple listing document before he gave his deposition and did not know that it contained the words "new roof-recently added." Mr. White said he put the new shingles on because his father-in-law told him the house probably needed a new roof because it was between 10 to 13 years old. A roofer was hired in March of 1981 to put the new shingles on and he told Mr. White that there were no other problems with the roof.
Summary judgment shall be granted if the pleadings, depositions, interrogatory answers, or affidavits submitted show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. The court must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the non-moving party. Ray v. Montgomery, 399 So. 2d 230, 232 (Ala.1980).
As stated in Jordan & Sons v. Pickett, 78 Ala. 331 (1884),
Quoted with approval in Marshall v. Crocker, 387 So. 2d 176, 178 (Ala.1980).
For active concealment to be recoverable, the facts suppressed must not only be material, but either the materiality must be known to the seller, or the facts must so constitute an element of the value of the contract as to authorize the inference of knowledge of its materiality, and the concealment must be for the purpose of continuing a false impression or a delusion under which a purchaser has fallen, or of suppressing inquiry and thereby effecting a sale with the intention to conceal or suppress. Marshall v. Crocker, supra at 179.
In Alabama there is no implied warranty of habitability in the resale of used residential real estate, and the rule of caveat emptor still applies in such a case. Cooper & Company, Inc. v. Montgomery, 399 So. 2d 230 (Ala.1980).
There is no evidence presented in the depositions showing that the Whites knew of any problems with the roof or that they had ever repaired any holes in the roof. In fact, Mr. White was told by a roofer that there were no problems with *86 the roof at the time new shingles were put on. Both Mr. and Mrs. Sanders inspected the house and were never denied the opportunity to do so. No representations concerning the roof or the house in any way were ever made by the Whites, and the Sanderses stated that they never relied on any representations by the Whites or their real estate agent. The fact that the Whites put new shingles on the house does not, without more evidence, give rise to the inference that they intentionally concealed material facts about the roof. Even though repairs may conceivably be evidence of the sellers' knowledge of defects, the sellers do not owe a duty of disclosure to the purchasers. Harrell v. Dodson, 398 So. 2d 272 (Ala.1981).
Since there is no evidence of active concealment on the part of the Whites, we hold that the trial court was correct in granting summary judgment in favor of the Whites.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | August 30, 1985 |
b9285779-52ef-45f5-b8c5-74e8dacb6e7f | Kimbrel v. Mercedes-Benz Credit Corp. | 476 So. 2d 94 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 94 (1985)
Lynn KIMBREL
v.
MERCEDES-BENZ CREDIT CORPORATION.
84-286.
Supreme Court of Alabama.
September 6, 1985.
E. Ray Large and Hub Harrington, Birmingham, for appellant.
William B. Hairston, Jr. of Engel, Hairston, Moses & Johanson, Birmingham, for appellee.
MADDOX, Justice.
The issue in this case is whether the trial court erred in granting summary judgment in favor of defendant Freightliner Credit Corporation (now Mercedes-Benz Credit Corporation) against plaintiff Lynn Kimbrel, who had sued the credit company for wrongful repossession, conspiracy, conversion, and breach of warranty. Although other defendants were named in the complaint, as amended, the appeal is taken only as to the defendant Freightliner. We affirm.
Kimbrel is a truck driver. On November 18, 1981, he entered into a contract with Liberty Truck Sales to purchase a new tractor. He negotiated only with employees of Liberty Truck Sales, and at no time prior to the sale did he have any contact with any employees or representatives of Freightliner Credit Corporation (Freightliner).
Kimbrel made a down payment of $3,000, in cash, and traded in his 1976 tractor, valued by both parties at $7,700. Freightliner financed the balance of the sale price, *95 and Kimbrel agreed to pay monthly installments to Freightliner.
Kimbrel took possession of the tractor and began hauling freight with it. Soon thereafter, the tractor broke down and Kimbrel returned the tractor to Liberty for repairs. While the tractor was in Liberty's shop, Kimbrel missed the first installment payment, due on December 18, 1981, and Freightliner repossessed the tractor, holding it on Liberty's premises. Liberty, under instructions from Freightliner, refused to return the tractor to Kimbrel.
Kimbrel filed his original complaint in the Circuit Court of Jefferson County on February 5, 1982, against Liberty, Freightliner, and the Caterpillar Company, the maker of the engine in the tractor. In Count One of his complaint, he alleged conversion against Liberty and Freightliner. In Count Two, he charged the defendants with conspiracy to deprive him of his down payment and his trade-in. Count Three was against Caterpillar. The count against Caterpillar was dismissed, with leave to amend. Motions to dismiss by the other defendants were denied.
On September 2, 1983, Kimbrel filed his first amended complaint, substituting it for his original complaint. This complaint consisted of Counts A through E, and in it Kimbrel claimed damages against Freightliner and Liberty for conversion, commercially unreasonable repossession, breach of express warranties, and wrongful repossession. Count E was a claim against Caterpillar. Count "F" was added by amendment on May 30, 1984. This count alleged breach of warranty against Freightliner. Kimbrel added Counts G and H, by amendment, on July 17, 1984. In Count G, he alleged fraud on the part of Freightliner that induced him to enter into the contract with Liberty. In Count H, he charged Freightliner with conversion based on this alleged fraudulent conduct.
On July 17, 1984, the court granted Mercedes-Benz's motion for summary judgment as to Counts A through D of the substituted complaint.
Kimbrel made a final amendment on July 27, 1984, in which he amended Counts G and H and added Count I. Count I claimed damages from Freightliner based upon alleged assertions made to him by employees of Liberty prior to the signing of the sales contract.
On November 2, 1984, a final judgment was granted in favor of Freightliner. Kimbrel appeals to this Court.
Final summary judgment was rendered in favor of defendant Freightliner Credit Corporation upon a finding that there existed no genuine issues of material fact. The trial court held that Count G and Count H of plaintiff's complaint "[d]id not `relate back' under Rule 15(a), Ala.R.Civ.P., and consequently, being brought more than one year after the accrual of the fraud claims set forth therein, [were] barred by the applicable one year statute of limitations."
Kimbrel claims that the trial court erred in refusing to allow him to amend to add Counts G and H, which alleged fraud arising out of alleged misrepresentations made to him in connection with his purchase of the tractor. He contends that his amendment should relate back because it arises out of the same transaction or occurrence set forth in his original complaint.
The original complaint alleges that Freightliner and Liberty conspired to deprive Kimbrel of his down payment by selling him a defective tractor, and by wrongfully repossessing the tractor. No allegation of fraud is made in the original complaint. In his amended complaint, Kimbrel alleges that agents of Liberty Truck Sales made misrepresentations during the sales transaction. Of course, at this time, Kimbrel had had no contact with Freightliner, and further, Freightliner and Liberty are separate entities.
We find the factual situation here not unlike that presented in Bank of the Southeast v. Jackson, 413 So. 2d 1091 (Ala. 1982), and the cases therein cited. In Bank of the Southeast, the original complaint *96 was based upon the dishonoring of a letter of credit. After the statute of limitations had run, plaintiffs attempted to amend their complaint by adding a count charging fraud in the dishonoring of the letter of credit. This Court upheld the trial court in refusing to permit the amendment, stating:
413 So. 2d at 1093.
Similarly, there was no indication in Kimbrel's original complaint that Freightliner would have to defend itself against any fraud committed by Liberty's employees during negotiations with Kimbrel. Certainly, the trial judge was authorized to find that these facts were known to Kimbrel prior to the time the original complaint was filed. Yet no indication was made to Freightliner that any fraud was involved. Rather, its original defenses would have been based on the security agreement: that it was valid, Freightliner possessed it, Kimbrel was in default, and Freightliner repossessed the security. The basis of Freightliner's defense would have been that it had a right to repossess the tractor, and that it did so without breaching the peace. Under the fraud count, Freightliner would have to disprove statements allegedly made by representatives of Liberty which were not contained in the security agreement. This would necessitate a complete change in Freightliner's defensive strategy.
Kimbrel argues that his amendment merely clarified the fraud alleged in his original complaint, but there were no allegations of fraud with particularity as required by Rule 9, Ala.R.Civ.P. The situation is thus analogous to that in Roney v. Ray, 436 So. 2d 875 (Ala.1983). There, the original complaint alleged acts of fraud which occurred on March 9, 1979. The amendment alleged acts of fraud which occurred on April 10, 1978. This Court held that the amendment did not relate back to the time of the original complaint.
In the present case, any acts of fraud alleged by Kimbrel in his original complaint, if any facts were alleged, were unrelated to the fraud alleged in the amended complaint. In Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So. 2d 469, 471 (1975), this Court stated that the allowance of an amendment is in the discretion of the trial judge, although the refusal of an amendment must be based on a valid ground. We are of the opinion that the trial judge did not abuse his discretion in granting Freightliner's motion for summary judgment as to Counts G and H.
The second issue on this appeal is whether Count I raises any genuine issue of material fact. If so, the trial judge erred in granting Freightliner's motion for summary judgment. Rule 56(c), Ala.R.Civ.P. We are of the opinion that no issue of material fact exists under Count I, and thus affirm.
We begin by noting that where there is a scintilla of evidence in favor of the non-movant's position, summary judgment is inappropriate. Further, the burden is on the movant to demonstrate that no genuine issue of fact exists. All reasonable inferences from the facts, viewed most favorably to the non-movant, are indulged. Bank of the Southeast v. Jackson, 413 So. 2d at 1094. Despite this heavy burden, we find summary judgment to have been appropriate under the present facts.
Count I of Kimbrel's complaint, as noted, claims that Freightliner is liable to Kimbrel for statements made to Kimbrel by Liberty's employees. These statements are varied. One concerns a credit allegedly allowed Kimbrel against the purchase price by Liberty due to Kimbrel's using tires from his old tractor on his new tractor. This credit was not stated on the security agreement. Another was that the gear ratio on the tires was misstated by Liberty's salesmen. The last of these statements *97 was that the first payment would not be due until 45 days from the date of purchase, rather than 30 days. This claimed modification was also not present on the face of the security agreement. Thus, from the face of the agreement, Freightliner was led to believe that the first payment was due 30 days from the date of purchase, and that, upon failure to receive this payment, it had a right to repossess the tractor. The promises, if made, were made by representatives of Liberty, and not by Freightliner.
Kimbrel contends that Liberty was anagent of Freightliner. As proof of this, Kimbrel argues that Freightliner had aright of approval of Kimbrel's credit, that Freightliner's name appeared upon the contract Kimbrel signed with Liberty, and that Freightliner dictated the terms of Kimbrel's payments. None of these actions is inconsistent with the extending of credit by an institution, and these actions would not legally amount to a ratification of any statements made during negotiations by Liberty employees. There is no evidence in the record that the relationship between Liberty and Freightliner would support a finding of agency. On the contrary, Clause 3 of the contract between Liberty and Kimbrel clearly states that the seller, Liberty, and the financer, Freightliner, are to be considered as separate entities, and that no claim which Kimbrel had against Liberty could be asserted against Freightliner. Further, clause 6 of the contract states that the written contract "constitutes the entire agreement between the parties." Based on the foregoing, the trial court was correct in finding that all that Freightliner did was to finance the sale of a tractor, and, upon default by the purchaser, Kimbrel, repossess the tractor. No argument is made that the repossession was anything but peaceful. The judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | September 6, 1985 |
43267d67-bafe-4cbe-867d-0b91f50df229 | Hines v. Armbrester | 477 So. 2d 302 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 302 (1985)
Sheryl HINES
v.
Dr. C.R. ARMBRESTER and Enterprise Hospital and Nursing Home.
83-1181.
Supreme Court of Alabama.
September 20, 1985.
*303 Bill Kominos of Fuqual & Kominos, Ozark, for appellant.
Fred W. Tyson of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee The Estate of Dr. C.R. Armbrester.
Philip S. Gidiere, Jr. of Carpenter & Gidiere, Montgomery, for appellee Enterprise Hospital.
ADAMS, Justice.
This case involves a claim of medical malpractice against Dr. C.R. Armbrester and the Enterprise Hospital and Nursing Home. The gist of the action is that Dr. C.R. Armbrester negligently diagnosed and treated plaintiff's medical condition below the standards required by the medical community. Plaintiff also claims that Enterprise Hospital and Nursing Home failed to meet the standard of care of hospitals dealing with a case such as hers.
The trial court granted summary judgment in favor of both defendants, thus bringing to a final conclusion plaintiff's litigation, hence this appeal. We affirm.
The important facts which triggered this litigation are as follows:
The plaintiff, Sheryl Hines, was first seen by Dr. Armbrester in the second trimester of her pregnancy on September 25, 1980. She continued to see him periodically, and on January 5, 1981, she was admitted to the Enterprise Hospital and Nursing Home for the delivery of her baby. The delivery was accomplished on the same day of the admission. Plaintiff's sojourn in the hospital was as uneventful as her prenatal treatment, and she was discharged from the hospital on January 8, 1981. On January 13, 1981, plaintiff called Dr. Armbrester, complaining of having afterbirth pains, and he prescribed a medication for this complaint. On January 18, 1981, plaintiff called to tell her doctor that she was passing some blood clots. Dr. Sanders, standing in for Dr. Armbrester, admitted plaintiff *304 to the hospital. On January 19, 1981, Dr. Armbrester consulted with Dr. Sanders and then treated plaintiff with medication for vaginal bleeding and discharged her on January 20, 1981. Dr. Armbrester noted that the medication was reducing the bleeding.
Again, on January 23, 1981, plaintiff complained about vaginal bleeding and again plaintiff was given medication until January 25, 1981, when she was discharged. She was not seen by Dr. Armbrester after January 25, 1981.
On January 27, 1981, the plaintiff was seen by Dr. Taylor Caffee at his office in Ozark, Alabama. The next day he performed a D & C on plaintiff and within two weeks, she was completely recovered. Her uterus had returned to normal size and the bleeding had stopped.
There is only one issue in this case. That issue is whether the trial court was correct in granting summary judgment for each of the defendants in this case, based on the pleadings, affidavits, and depositions filed herein.
Plaintiff strongly urges us to observe the general principle that under ordinary circumstances summary judgment is inappropriate in negligence cases because these cases, by their very nature, involve factfinding determinations on the reasonableness of the defendant's conduct, which the jury is in the best position to assess. Plaintiff argues that the testimony of Dr. Taylor Caffee provided at least a gleam, glimmer, spark, or particle of evidence of negligence, thus providing the necessary scintilla which would entitle plaintiff to a jury trial to determine negligence vel non. She says that even though Dr. Armbrester, in his deposition, stated that his treatment of plaintiff, even though conservative, was in keeping with the standards of care of the medical profession for the treatment of this case, the deposition of Dr. Taylor Caffee rebutted this statement, thus providing the scintilla of evidence required to allow plaintiff to go to the jury.
Both doctors conclude that plaintiff's problem was caused by a retained placenta. Plaintiff claims that the failure to immediately remove this necrotic placental tissue, and allowing it to become inflamed in the vaginal vault, are not in keeping with the standard required in the medical community.
The damaging evidence in this case, according to the plaintiff, is Dr. Caffee's deposition testimony. That testimony is as follows:
The deposition also shows:
We certainly would agree with plaintiff that her medical expert, Dr. Caffee, had provided the necessary scintilla to allow this case to go to the jury if this were the whole of his testimony. This case is strikingly similar to a recent decision of this Court in a medical malpractice case where we said that if a portion of the testimony of plaintiff's expert were viewed abstractly, independently, and separately from the balance of his testimony it would appear sufficient to defeat a motion for summary judgment. Malone v. Daugherty, 453 So. 2d 721 (Ala.1984). However, we are not to view testimony so abstractly. We are to view the testimony as a whole, and, so viewing it, determine if the testimony is sufficient to create a reasonable inference of the fact the plaintiff seeks to prove. In other words, can we say, considering the *305 entire testimony of the plaintiff's expert, that an inference that the defendant doctor had acted contrary to recognized standards of professional care was created? We have also applied the same principle in the regular negligence context. Alabama Power Company v. Smith, 409 So. 2d 760 (Ala.1982).
Let us view the testimony of plaintiff's expert in the light of these standards:
In light of the foregoing testimony we cannot conclude that plaintiff has provided the necessary expertise required in a medical malpractice case. This Court said in Tant v. Women's Clinic, 382 So. 2d 1120 (Ala.1980):
382 So. 2d at 1121.
Furthermore, we cannot conclude that a physician would be liable just because another member of his profession would have treated the case a different way. Here, the defendant doctor proceeded to treat the condition on a conservative basis. At best, the testimony of Dr. Caffee only indicates that he would have performed the D & C sooner. In Sims v. Callahan, 269 Ala. 216, 112 So. 2d 776 (1959), this Court stated:
269 Ala. at 225, 112 So. 2d at 783.
The purpose of summary judgment is to eliminate useless and time-consuming trials where there is no genuine issue of material fact and resolution of the issue is narrowed to a question of law. Here, the physician, as well as the hospital, would have had to have breached the standard of care required by physicians and hospitals handling the same, or a similar, case. This, the plaintiff has failed to demonstrate, when Dr. Caffee's testimony is viewed as a whole. Therefore, summary judgment was appropriate. Liner v. Temple, 373 So. 2d 638 (Ala.1979).
There was no effort on the part of plaintiff to introduce a deposition or affidavit in opposition to the affidavit furnished by the defendant hospital. That affidavit, if uncontradicted, was sufficient to support summary judgment in the hospital's favor. Under such circumstances, the trial court is obligated to apply Rule 56(e) strictly:
Based on the foregoing, the trial court did not err in granting summary judgment for both defendants. Therefore, its judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur. | September 20, 1985 |
1d1ff369-b3d1-496d-a0c4-7987a21ab99d | Ex Parte Lawson | 476 So. 2d 122 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 122 (1985)
Ex parte Columbus LAWSON.
(Re Columbus Lawson v. State).
84-879.
Supreme Court of Alabama.
August 30, 1985.
Harwell G. Davis, III, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for respondents.
PER CURIAM.
Writ quashed.
We cannot agree with the Court of Criminal Appeals, 476 So. 2d 116, that the trial court properly excluded the statement of Ken Spencer, "I thought Terry was going to shoot," on the ground that the statement was the expression of an opinion. However, on the record before us, the trial court's action in excluding the statement, which was admissible as a spontaneous statement by a bystander/observer to an exciting occurrence, C. Gamble, McElroy's Alabama Evidence § 265.01 (3d ed. 1977), and cases cited therein, does not constitute reversible error, since the statement would have been merely cumulative of other evidence of the same nature, which was admitted.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. | August 30, 1985 |
2e645ba8-f9fa-48ff-9d3d-009d79d84384 | CHARLES ISRAEL CHEV., INC. v. Walter E. Heller & Co. | 476 So. 2d 71 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 71 (1985)
CHARLES ISRAEL CHEVROLET, INC., a corporation, Economy Finance, Inc., a corporation, and Charles Israel, an individual
v.
WALTER E. HELLER & COMPANY.
84-87.
Supreme Court of Alabama.
August 30, 1985.
*72 David B. Anderson, and Jo Beth Murphree of Cabanniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellants.
Richard F. Ogle of Najjar, Denaburg, Schoel, Meyerson, Ogle & Zarzaur, Birmingham, for appellee.
JONES, Justice.
Walter E. Heller & Company (Heller) brought an action against Appellants for monies due Heller under a lease executed by Charles Israel as President of Charles Israel Chevrolet, Inc., and guaranteed by both Economy Finance, Inc., and Charles Israel, individually. The trial court, sitting without a jury, entered a judgment for Heller. We affirm.
Charles Israel purchased Wood Chevrolet Company in January of 1981 and changed the name of the dealership to Charles Israel Chevrolet (CIC). Charles Israel was president of both CIC and Economy Finance, Inc. (EFI).
Shortly after Israel purchased the dealership, he was approached by Pete Wilson, an employee of Blackstocks, Inc. Israel and Wilson discussed a service offered by Blackstocks known as "parts return," whereby Blackstocks would inventory and box the large volume of undesirable parts and materials from the previous dealership and ship these parts to the manufacturer, which, in turn, would allow CIC full credit for these parts when CIC ordered new parts for restocking. Blackstocks, via written quotation, offered to perform the parts return for six percent (6%) of the total value of the parts returned, with payment "due upon completion." CIC accepted Blackstocks' proposal and quotation.
A second proposal made by Blackstocks to CIC was for the performance of a planograph (a computer study of the parts stocked by CIC) and for a recommendation, based on the results of the planograph, for the best manner of storing parts based on size and demand. The written quotation for the planograph study was accepted by CIC on the same day the first quotation was accepted. The payment term for the second quotation was "net ten days."
Blackstocks performed the parts return and the planograph. The computer study revealed that new parts storage bins and shelves were necessary. Blackstocks, in a third written quotation, offered to sell to CIC new bins and new shelves and to supply the labor necessary to erect the new bins and shelves and to restock when the new parts arrived. The third quotation from Blackstocks to CIC included a figure for implementation of the planograph study results in supplying and restocking the new bins and shelves. This quotation also summarized the amounts already due Blackstocks from CIC and later included the price of a steel platform not originally discussed. CIC accepted this third quotation, which reflected a total figure of $64,575.21.
Although the record is unclear as to an exact time, it appears that either during the time Blackstocks was performing the planograph or at the time the planograph was completed, a Blackstocks representative told Charles Israel that financing for the Blackstocks services could be arranged. The testimony is clear, however, that Heller's name was never mentioned by a Blackstocks representative in any conversation with Israel.
Israel later received a call from a representative of Heller who explained that he was calling Israel at the request of Blackstocks. After several discussions, CIC and Heller reached an agreement and Israel executed a lease to Heller on behalf of CIC, and executed both a corporate guaranty of *73 the indebtedness as president of EFI, and a personal guaranty.
While the contract executed between Heller and CIC was denominated a "lease," it must be understood in terms of what actually transpired between the parties. Heller purchased from Blackstocks what it understood to be the equipment installed by Blackstocks on CIC's premises and paid therefor the sum of $64,575.21the exact amount of the indebtedness owed by CIC to Blackstocks. Israel testified at trial that the contract between CIC and Heller was set up as a "true lease" (as opposed to a sale), because CIC had no need of an investment tax credit and because Israel wanted to keep the monthly payments as low as possible.
At the time Israel executed the lease, Blackstocks had fully performed all services offered to CIC in the three quotations. Blackstocks invoiced Heller for the cost of the equipment and its services to CIC, and Heller issued a check to Blackstocks for $65,575.21 in full payment of the invoice.
CIC began to make monthly lease payments to Heller and continued to do so for several months, paying to Heller a total of $7,179.42. The CIC dealership failed, however, and no further lease payments were made. Because Heller failed in several attempts to collect the balance of the debt owed by CIC, it sued CIC on the lease and guaranties.
At trial, CIC made two arguments in defense of nonpayment. CIC first contended that the lease and guaranties executed by CIC, EFI, and Israel to Heller were unenforceable because Blackstocks, although doing business in this State, had failed to qualify to do business in Alabama as required by Article XII, § 232, Ala. Const. (1901), and § 10-2A-226, Alabama Code 1975 (1984 Supp.). The "contract" between Blackstocks and CIC (as evidenced by the three quotations) was, according to CIC, a voidable contract under § 10-2A-247. This voidable contract, says CIC, was assigned by Blackstocks to Heller, but that assignment to a qualified business (Heller) did not and could not remove the contract's defect. See, generally, Sandjay, Inc. v. Duncan Construction Co., 445 So. 2d 876 (Ala.1983); and First Bank of Russell County v. Wells, 358 So. 2d 435 (Ala.1978).
Second, CIC claimed that, even assuming its liability to Heller under the lease and guaranties, the total amount owed Heller should be adjusted to reflect the actual value of the equipment (in accordance with paragraph 7 of the lease), rather than basing the amount due on an allegedly erroneous estimated value as stated on the face of the lease.
The trial judge heard the evidence, both from the testimony of various witnesses and from deposition testimony read into the record at trial. He had before him the lease and guaranties upon which Heller based its claims and could read for himself the disputed lease provisions. He entered a judgment adverse to CIC, but made no express findings of fact.
CIC, on appeal, reargues its position at trial and makes numerous references to portions of the trial transcript. Our review of the trial court's judgment, however, is governed by a familiar standard. The decision of a trial judge, sitting without a jury, upon disputed facts presented orally, will be affirmed on appeal "if it is fairly supported by credible evidence under any reasonable aspect, and is not palpably wrong or manifestly unjust." Whitt v. McConnell, 360 So. 2d 336, 337 (Ala.1978). The principle of this ore tenus rule, with its requisite that the trial court have heard oral testimony, nevertheless, may be applied in cases such as the one now before us, in which part of the evidence at trial was presented in the form of documents and depositions which were read into evidence. "It is the law in Alabama that where evidence has been presented orally, a presumption of correctness attends the trial court's conclusion on issues of facts, if these conclusions were based totally or in part on oral testimony." First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 425 (Ala.1982).
*74 A further qualification of the ore tenus rule is applicable in the instant case. Where, as here, the trial judge enters his decree without making express findings of fact, this Court will assume that he found those facts necessary to support his decree, unless such a finding would have been clearly erroneous or against the great weight of the evidence. Whitt v. McConnell, supra. Further, "[i]t is well settled that where it cannot be determined on what ground or theory judgment was rendered, the finding of the trier of fact is referred to the theory supported by the evidence." Snow v. Boykin, 432 So. 2d 1210, 1211 (Ala. 1983).
The sole issue in this appeal, then, is whether the record contains sufficient credible evidence to support the trial court's judgment under any reasonable aspect. Our review of the trial transcript convinces us that the trial court's conclusions were clearly supported by the evidence. Because the trial judge here occupied the superior position of seeing the demeanor of witnesses with direct personal knowledge of the ultimate facts of the case, he was in the best position to determine the weight and credibility to be given the testimony of each witness. See Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So. 2d 766 (1975); Rule 52(a), A.R.Civ.P.
While the evidence is in dispute with regard to the parties' intentions as to the "financing" of the debt owed by CIC (Heller claiming "purchase" and CIC claiming "assignment"), there was ample credible evidence from which the trial judge could find for Heller. For example, testimony was adduced, not only from the representative of Heller, but from representatives of Blackstocks and from Mr. Israel himself, that there was no discussion at any time of "assignment" of the obligation from Blackstocks to Heller. The trial court could have found not only that the lease and guaranties were meant to be original contracts between Heller and CIC, but that the negotiations for the ultimate execution of these documents (including CIC's obtaining a corporate resolution approving the contract with Heller, CIC's submitting a corporate financial statement to Heller, and Israel's signing all of the Heller forms) involved only CIC and HellerBlackstocks was never involved in the direct discussions between Heller and CIC.
The evidence indicated that CCI was never invoiced for payment by Blackstocks and that in signing the three Blackstocks quotations CIC had simply accepted general payment terms proposed by those documents. CIC made no payments to Blackstocks. On the other hand, the evidence at trial did show that Heller had been invoiced by Blackstocks for the entire amount due by virtue of the services performed by Blackstocks for CIC and that Heller had paid the total amount due by that invoice. CIC made payments only to Heller under the terms of the lease and guaranties. Moreover, the evidence supports the legal conclusion that Heller's suit sought to enforce an original contract between Heller and CIC without regard to the nature of the legal relationship between Heller and Blackstocks. Thus, CIC's "nonqualified business" defense is without merit.
There was also evidence that the total amount due, as shown on the face of the lease, was determined by considering the cost of the equipment and services provided to CIC. Further, it was brought out at trial that CIC did not question "value" or "cost" of equipment and services until called upon by Heller to honor the terms of the lease and guaranties.
Our review of the trial court's judgment, in light of both the record on appeal and the applicable standard of appellate review, leads to our conclusion that the judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES, and BEATTY, JJ., concur. | August 30, 1985 |
c16866a2-8e51-461f-b432-32eff67ac9d4 | AMERICAN PIONEER LIFE INS. v. Sherrard | 477 So. 2d 287 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 287 (1985)
AMERICAN PIONEER LIFE INSURANCE COMPANY and Charles R. Joachim
v.
William M. SHERRARD and Kathleen P. Sherrard.
82-1167.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied September 27, 1985.
*288 Richard W. Bell of Bell, Allen & Johnson, Pelham, for appellants.
James W. Webb and Dan E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellees.
ALMON, Justice.
This appeal challenges the sufficiency of evidence of fraud in a business transaction. Plaintiffs invested in a business venture, allegedly in reliance upon false representations by defendants. William M. and Kathleen P. Sherrard sued American Pioneer Life Insurance Company and Charles R. Joachim for damages and for cancellation of a mortgage and note they had executed in favor of American Pioneer. American Pioneer counterclaimed for the amount due on the note secured by the mortgage.
At the close of all the evidence at trial, the court ordered that the mortgage be cancelled. The jury awarded $100,000 in *289 damages against American Pioneer and $50,000 against Joachim. The jury also found in favor of the Sherrards on the counterclaim.
The Sherrards moved from California to Montgomery, Alabama, in 1979. Mr. Sherrard held several jobs as a salesman for various insurance companies for short periods of time. In March 1980, he met Gene Smith, the local manager for Family Life Insurance Company. Sherrard worked for Family Life from March until May of 1980. In the fall of that year, Sherrard began helping Smith with a project Smith was developing.
Smith had an idea for a combined annuity/mortgage protection policy. He initially had John Eardley, a former employee of Family Life and of American Pioneer, working with him to develop the policy. Sherrard's initial participation was merely to help Smith with typing and editing the paperwork for the project, which Sherrard testified he did not understand.
Eardley introduced Smith to Grant C. Hunt, the president of American Pioneer, and Charles R. Joachim, American Pioneer's senior vice president in charge of marketing. In late October or early November, the four men met at the Montgomery airport to discuss the possibility of American Pioneer's underwriting the policy. On November 6, Joachim wrote Smith that American Pioneer would develop the mortgage protection life insurance policy and annuity described by Smith. The letter concluded, "Gene, it will take 45 to 60 days to finalize this product and then walk it through the Alabama Insurance Department for State approval, therefore, your earliest response regarding the acceptability of this product is of the utmost importance.
In December, Smith told Sherrard that Eardley had left the project. Sherrard expressed an interest in investing in the project. Smith told Sherrard about American Pioneer's involvement and apparently showed him the letter mentioned above. They telephoned American Pioneer and talked initially to Joachim. Joachim told Sherrard that American Pioneer was very excited about Smith's policy idea. Sherrard testified:
Sherrard borrowed $5,000 from his mother in January 1981 and invested it in the enterprise, borrowed $10,000 secured by a second mortgage on his home in March and invested it, borrowed another $5,000 from his mother in April and invested it, and invested $1,800 of his own money in June. In March Smith and Sherrard formed a corporation called Mortgage Cancellation Associates (MCA) through which to sell the policy.
During this period, Joachim sent Smith's ideas for the policy to an actuarial firm, which prepared the necessary figures for premiums and benefits. The actuary who worked on the policy wrote Joachim on February 11 that "we have developed the above new [mortgage protection] policy to be used by American Pioneer." He sent American Pioneer the final actuarial work on the mortgage protection policy on March 5th, and on a later-requested spouse's and children's rider on April 22nd.
During March and April, a computer programmer was working in Smith's Birmingham *290 office to develop a program for printing sales presentation charts about the policy. He testified that Joachim said that American Pioneer would have the policy ready by May 1, and that he was asked to finish the program by that time.
At Joachim's suggestion, Sherrard moved to Birmingham in May to be able to work on the project full time. In June the policy was not yet approved by the Alabama Department of Insurance. Sherrard testified that in late May or early June, Hunt and Joachim wanted MCA to begin a sales training program "to have something to show [American Pioneer's] board of directors by July." American Pioneer loaned MCA $25,000 for operating expenses and took a third mortgage on the Sherrards' home to secure the debt. Sherrard testified that when he expressed reluctance to put this mortgage on his home, Joachim told him,
Sherrard further testified that he would not have executed the mortgage but for these statements by Joachim.
MCA conducted the sales training program, but the Alabama Department of Insurance did not give final approval of the policy until August 17. Joachim came to MCA's office in Birmingham about that time. He refused to talk to Smith, but told Sherrard to call a stockholders' meeting. At that meeting, according to Sherrard, Joachim said that MCA's "problems in selling were because of Gene Smith and his inability to work with anybody." When it became clear that Joachim would not work with him, Smith left the meeting.
Joachim told Sherrard to have the locks changed so Smith could not have access to MCA's office, and that he would come back to Birmingham the following Monday "to take over and help get this thing on the road." Joachim did not return the following Monday. About two weeks later he passed through Birmingham and told Sherrard that American Pioneer could no longer do business with Gene Smith. Joachim said American Pioneer would send someone from Florida to take over the operation, but no one ever came.
Only two policies were ever sold, and one was cancelled within a few weeks. Sherrard moved back to Montgomery in September 1981 and did no further work with MCA. In February 1982, Hunt wrote the Sherrards requesting payment on the note, which had come due in January.
The Sherrards sued American Pioneer and Joachim for the allegedly fraudulent statements that the policy would be available on May 1, 1981, and that American Pioneer would not attempt to collect the loan from them personally. American Pioneer and Joachim argue that these statements did not amount to fraud.
To be actionable fraud, a statement must misrepresent a material fact and the defrauded party must act upon it to his damage. Code 1975, §§ 6-5-100 and -101; Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981); Pugh v. Kaiser Aluminum & Chemical Sales, Inc., 369 So. 2d 796 (Ala. 1979).
A representation regarding acts or events to take place in the future constitutes fraud only if, at the time of making the statement, the party intends to deceive and not to perform the acts promised. Army Aviation Ctr. Fed. Cred. Union v. Poston, 460 So. 2d 139 (Ala.1984); Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983); Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1981); Walker v. Woodall, 288 Ala. 510, 262 So. 2d 756 (1972).
Joachim's statements that the policy could be ready in 45-60 days or by May 1 fit within this rule. While Sherrard introduced evidence that the estimate of 45-60 days for final preparation and approval was unrealistically optimistic, there was no proof that Joachim made this statement to deceive Smith or anyone to whom Smith *291 might show the letter. Joachim wrote the letter in the initial stages of the negotiations. It shows on its face that Joachim made the time estimate to encourage Smith to respond promptly to American Pioneer's terms for developing the policy, not to tell investors when they might begin realizing a return. Any reliance by Sherrard for the latter purpose would have been unreasonable. Joachim wrote this statement on November 6, 1980. Sherrard made his initial investment in January 1981 and made further investments in March, April, May, and June. This sequence negates any reasonable inference that the Sherrards relied on the statement in the letter in making their investments.
Nor did the evidence have any tendency to prove that Joachim made any misrepresentation when he told Smith and Sherrard that the policy would be ready by May 1. Indeed, the evidence only showed that American Pioneer did its part to prepare the policy and secure approval. Hunt testified that American Pioneer spent $45,000-$60,000 in developing the policy package. This included preparing the information for the actuary, paying the actuary, reviewing the policy as returned by the actuary, sending the policy to the Florida and Alabama insurance departments for tentative approval, and printing the policy in order to receive final approval.
The actuary's letters in February and March show that Joachim had reasonable grounds for setting a May 1st goal. The fact that delays prevented the approval of the policy until August is not proof that Joachim committed fraud in setting the earlier goals. The proof showed, for instance, that Smith caused a delay in securing approval in American Pioneer's home state of Florida, a necessary prerequisite to approval in Alabama. After Florida approved the policy, Joachim hand-delivered it to the Alabama Department of Insurance, which gave preliminary and then final approval within a few weeks.
The other alleged fraud, that Joachim promised Sherrard that American Pioneer would not hold him personally liable for the note and mortgage, fails of proof for similar reasons. There was no proof that Joachim intended at the time to pursue the Sherrards rather than MCA for payment on the note. The parties were actively working at the time to make MCA a success and expected to repay American Pioneer from profits generated by MCA. Joachim left American Pioneer in November 1981, partly because he was responsible for increasing policy sales and the MCA project did not produce the amount of new business he had expected. His departure came well before Hunt attempted to collect the note in February 1982.
The Sherrards were personally liable on the note and they knowingly executed a mortgage on their house. An attorney working with MCA in Birmingham drafted both of these instruments. The Sherrards were entering a business venture for which they knew or should have known they were taking risks. These circumstances effectively undercut any assertion of reasonable reliance on any statements by Joachim contrary to the terms of the documents.
The Sherrards argue in their brief that other statements by Joachim support their claim of fraud: that Smith's idea was the greatest thing Joachim had seen, that it was American Pioneer's number one priority, and that it would revolutionize the industry. These statements are mere puffery and will not support a claim of fraud. Harrell v. Dodson, 398 So. 2d 272 (Ala. 1981).
For the reasons stated, the trial court erred in denying American Pioneer's and Joachim's motions for directed verdicts and in canceling the mortgage. The judgment is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur. | August 30, 1985 |
16c8a84a-7063-474b-a02f-f8a59b85cbbe | Taylor v. Moorman Mfg. Co. | 475 So. 2d 1187 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 1187 (1985)
Roy W. TAYLOR
v.
MOORMAN MANUFACTURING COMPANY and James N. Atanasoff.
84-245.
Supreme Court of Alabama.
August 30, 1985.
*1188 Gene M. Hamby, Jr. of Hamby & Baker, Sheffield, for appellant.
Braxton W. Ashe of Almon, McAllister, Ashe, Baccus & Tanner, Tuscumbia, for appellees.
FAULKNER, Justice.
Roy Taylor appeals from the trial court's granting of directed verdicts in favor of the defendants, Moorman Manufacturing Company and James Atanasoff, in a fraud and misrepresentation case. We affirm.
Mr. Taylor was employed on or about March 31, 1983, as a salesman of feed products for Moorman. Mr. Atanasoff, the district sales manager for Moorman, dealt with Mr. Taylor in negotiating a contract of employment. Mr. Taylor signed the contract with Moorman, dated March 31, 1983, after reading it. The contract provided that Moorman authorized Mr. Taylor to:
Mr. Taylor received a "territory listing form," signed by Mr. Atanasoff, which listed Mr. Taylor's initial customers alphabetically. Mr. Taylor testified that he did not remember receiving this and had never seen it before the time of the trial, at which time he found it among some papers he had received from Moorman about a week or so after signing the contract. At the time of negotiating the contract, Mr. Taylor and Mr. Atanasoff sat down together and came up with a list of possible customers, which Mr. Taylor recorded in a notebook he maintained, which was called a "territory record book."
During the early negotiations Mr. Taylor asked Mr. Atanasoff about a territory that would not have competition from other salesmen. He was told by Mr. Atanasoff that he could have one west of Highway 43 in Colbert County and west of Highway 157 in Lauderdale County. Mr. Taylor testified that he read the contract casually and that the paragraph he most remembered was the one that allowed either party to terminate the contract. He stated that this factor was most important to him at that time.
Sometime in May of 1983, Mr. Taylor learned that another salesman, Mr. Jim Davis, was selling to two customers west of Highway 43 in Colbert County. The evidence shows that Mr. Davis was hired prior to Mr. Taylor and that the two customers west of Highway 43 were assigned to Mr. Davis at the time he was hired. The two customers were not listed in either Mr. Taylor's territory listing form or in his territory record book. Mr. Atanasoff told Mr. Taylor that these customers would be transferred to him when a smooth transition could be made, because one of the customers had indicated that he did not want to change salesmen when he was contacted by Mr. Taylor and Mr. Atanasoff.
Mr. Taylor alleges that Mr. Atanasoff represented to him that he would have an exclusive territory without competition and that this representation was made falsely with the intent to deceive and that he is thus entitled to punitive damages. He further alleges that he is entitled to compensatory damages, including commissions from the sales made by Mr. Davis to the two customers west of Highway 43.
The trial court granted two separate directed verdicts; the first one was granted at the close of the plaintiff's case on the issue of punitive damages, and the second one was granted on the issue of compensatory damages after the defense rested its case without offering any evidence.
The imposition of punitive damages is permitted where a misrepresentation is made willfully to deceive and where the misrepresentation of a material fact is made recklessly without knowledge of its falseness. See Cooper Chevrolet, Inc. v. Taliaferro, 439 So. 2d 158 (Ala.Civ.App.1983) *1189 Treadwell Ford, Inc. v. Lewis, 416 So. 2d 406 (Ala.Civ.App.1981), judgment reversed, 416 So. 2d 410 (Ala.1982), on remand, 416 So. 2d 420 (Ala.Civ.App.1982); Big Three Motors, Inc. v. Smith, 412 So. 2d 1214 (Ala.Civ.App.1980), judgment reversed, 412 So. 2d 1218 (Ala.1981), on remand, 412 So. 2d 1219 (Ala.Civ.App.1981), judgment reversed, 412 So. 2d 1222 (Ala.1982), on remand, 412 So. 2d 1225 (Ala.Civ.App.1982).
In the present case, there is no evidence that Mr. Atanasoff made representations to Mr. Taylor with an intent to willfully deceive him or made representations recklessly without regard to their truth. There is evidence that during the negotiations, Mr. Atanasoff told Mr. Taylor that he would have a territory without competition. However, the contract which Mr. Taylor later read and signed provided that he was to solicit orders from persons assigned to him and listed in his territory records. Both parties sat down together and came up with the names which were put into Mr. Taylor's territory record book. Thus, based upon the foregoing, we find that the trial court was correct in directing a verdict for the defendants on the issue of punitive damages.
We turn now to the issue of compensatory damages and the elements necessary to constitute legal fraud. Whether a representation is made willfully, recklessly, or mistakenly, the essential elements of fraud include: (1) a false representation, (2) concerning a material existing fact, (3) upon which the plaintiff has relied, and (4) has been damaged as a proximate result. Haddox v. First Alabama Bank of Montgomery, N.A., 449 So. 2d 1226 (Ala.1984).
Mr. Taylor testified that he relied on the representation made by Mr. Atanasoff that he would not have competition in his territory. Mr. Taylor also testified that he read the contract of employment and that the paragraph he most remembered was the one which allowed either party to terminate the contract and that this was the most important factor at that time to him.
One of the essential elements that must be proven by a party charging fraud is reliance, and the reliance must be reasonable under the circumstances. Code 1975, § 6-5-101; Desroches v. Complete Auto Transit, Inc., 409 So. 2d 417 (Ala.1982); Bedwell Lumber Company, Inc. v. T & T Corporation, 386 So. 2d 413 (Ala.1980). Where a party has reason to doubt the truth of the representation or is informed of the truth before the acts, he has no right to act on the representation. Bedwell Lumber Company, Inc., supra.
From the facts presented, it appears that Mr. Taylor was not induced to enter the contract based on Mr. Atanasoff's statement that he would have a territory without competition, but rather upon the clause in the contract that allowed him to terminate the contract, at anytime. He also read the other provisions of the contract which stated that customers would be assigned to him in a specified territory, and he was in fact given a list of such customers. These factors gave Mr. Taylor a reason to doubt the truth of the representation that he would have no competition in his territory. In fact, Mr. Taylor had no competition from other Moorman salesmen for the customers that were assigned to him. Therefore, we conclude that it was not reasonable for Mr. Taylor to rely on the representation made prior to entering the contract with Moorman. Consequently, in the absence of any proof of reliance upon the representation, the directed verdict entered by the trial court on the issue of compensatory damages was proper.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | August 30, 1985 |
803cf2c8-f5f9-4c15-9be8-84baf8243f40 | Allen v. Mobile Interstate Piledrivers | 475 So. 2d 530 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 530 (1985)
Otis ALLEN
v.
MOBILE INTERSTATE PILEDRIVERS, a joint venture consisting of Jordan Industries, Inc., Newmac, Inc., and Gulf City Construction Company.
MOBILE INTERSTATE PILEDRIVERS, a joint venture consisting of Jordan Industries, Inc., Newmac, Inc., and Gulf City Construction Company
v.
Otis ALLEN.
83-1298, 83-1385.
Supreme Court of Alabama.
August 23, 1985.
*531 Oliver J. Latour, Jr. of Owens, Latour & Simpson, Bay Minette, and Robert T. Cunningham, Jr. of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
G. Hamp Uzzelle III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
BEATTY, Justice.
Plaintiff appeals from the trial court's entry of judgment notwithstanding the verdict (JNOV) in defendant's favor in this suit for negligence under the Jones Act[1] and for unseaworthiness under general maritime law.
*532 Plaintiff was employed by defendant as a concrete finisher to work on the bridges on Interstate Highway 65 over the Tensaw and Mobile Rivers. When plaintiff reported to work each morning, he was taken by boat to Barge No. 103, which was secured in the river by spuds, metal poles driven into the river bed. The barge, which was 120 feet long by 49 feet wide, contained all of the equipment needed for repairing the bridge pilings. Specifically, the barge carried a large crane and a compressor used to operate an air jackhammer.
Plaintiff and the other men working from the barge would stay on the barge all day, including the lunch break. They also remained on the barge while it was moved to different locations. The barge had no locomotive power but was moved by tugboat on the average of twice per week. The men assisted in the barge's movement by hooking and unhooking cables to the sides of the barge and hooking the crane to the spuds. They also performed other minor duties on the barge, such as cleaning and oiling concrete forms and lumber.
The majority of plaintiff's time at work, however, was spent in a cofferdam, a rectangular structure driven into the river bed and rising 3 feet above water level, which kept water away from the footing while the men worked on it. The men went from the barge into the cofferdam by means of a ladder.
On August 4, 1978, plaintiff fell from the ladder into the cofferdam, a distance of approximately 18 feet, and was injured. Plaintiff claimed that the ladder was too short and was not properly secured to the top and sides of the cofferdam.
Aetna Life and Casualty Insurance Company, defendant's workmen's compensation carrier, paid plaintiff's medical expenses, totaling $8,117.17, and also paid plaintiff $20,561.25 as temporary total disability and permanent partial disability based on a 20% loss of use of his leg and a 30% loss of use of his foot. Plaintiff filed the present action in Mobile County on April 7, 1980. On July 22, 1980, he filed another action in Baldwin County under the Alabama Workmen's Compensation Act. The second action was continued pending the outcome of the first. The trial court in the present case sustained plaintiff's motion in limine, excluding any reference to the benefits and medical expenses already paid to plaintiff. However, the court and the attorneys indicated that the insurance carrier would receive credit for what had already been paid to plaintiff if he recovered in this lawsuit.
The jury returned a verdict in plaintiff's favor in the amount of $125,000. However, the trial court granted defendant's motion for JNOV on the ground that plaintiff was not a seaman. Plaintiff has appealed from the JNOV. In its cross-appeal, defendant argues: (1) the trial court erred in refusing to give certain charges to the jury concerning plaintiff's status as a seaman; (2) the trial court erred in not granting defendant's motion for directed verdict on the issue of unseaworthiness; (3) the trial court erred in overruling defendant's objection to plaintiff's closing argument; and (4) the trial court erred in excluding from the jury evidence of plaintiff's recovery of workmen's compensation payments.
The only issue raised by plaintiff is the entry of JNOV in favor of defendant on the ground that plaintiff was not a seaman and, therefore, was not entitled to recover. In federal courts, "[t]he standard for testing a jury's finding that a worker is or is not a Jones Act seaman is whether there is a reasonable evidentiary basis to support that finding." Savoie v. Otto Candies, Inc., 692 F.2d 363, 365 (5th Cir.1982). In Alabama, a JNOV is improper if there was a scintilla of evidence to support the jury verdict. Rule 50(e), A.R.Civ.P.; Hanson v. Couch, 360 So. 2d 942, 944 (Ala.1978). We need not decide whether the scintilla rule applies to a suit in state court in which federal law applies, since our review of the evidence convinces us that the result would be the same applying either standard.
The Jones Act does not define the term "seaman." A leading case on this *533 question is Offshore Co. v. Robison, 266 F.2d 769, 779-80 (5th Cir.1959), in which the fifth circuit stated:
The court set forth the following test:
In Robison, the plaintiff was assigned to a barge or mobile drilling platform. At the time of the accident, the barge was anchored to the bottom of the Gulf of Mexico. Plaintiff was a roughneck, or oil driller's helper. In addition to his oil drilling duties, plaintiff performed tasks on the barge such as chipping rust, painting, and washing down the decks. The court affirmed a judgment for plaintiff, holding that: (1) he was permanently assigned to a special purpose vessel; and (2) his duties aboard the vessel contributed to its mission, "to the operating function she was designed to perform as a sea-going drilling platform." 266 F.2d at 779.
Plaintiff claims that he meets the first part of the Robison test because he was permanently assigned to a vessel, namely Barge No. 103. Defendant's first challenge to this is that the barge in question was not a vessel. Defendant relies upon three cases which hold that a workman who is assigned to or performs a substantial amount of work on a stationary platform moored in navigable waters is not a seaman. Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868, 94 S. Ct. 175, 38 L. Ed. 2d 116 (1973); Leonard v. Exxon Corp., 581 F.2d 522 (5th Cir.1978), cert. denied, 441 U.S. 923, 99 S. Ct. 2032, 60 L. Ed. 2d 397 (1979); Watkins v. Pentzien, Inc., 660 F.2d 604 (5th Cir.1981), cert. denied, 456 U.S. 944, 102 S. Ct. 2010, 72 L. Ed. 2d 467 (1982). In Cook, the plaintiff was injured on a barge used as a floating construction platform. The platform was occasionally moved to different positions alongside the dock and was towed a short distance to deeper water to launch the barges constructed on the platform. The fifth circuit affirmed the trial court's grant of summary judgment for defendant. The appellate court held that the construction platform was indistinguishable from a floating dry dock and was, therefore, not a vessel. Responding to the plaintiff's argument that the platform was occasionally moved, the court stated:
*534 Leonard involved a construction platform consisting of four flat deck barges, three of which were lashed together end to end and moored more or less permanently to the river bank by steel cables. The fourth barge, which carried a crane, was connected to the shore by a wooden ramp. It was moved slightly forward or backward to allow the crane to service the other three barges. Following Cook, the court affirmed the entry of summary judgment for the defendant on the grounds that the platform was not a vessel. However, the court noted that Cook and Leonard should be applied restrictively since they deviate from the general practice of submitting Jones Act issues to the jury. 581 F.2d at 524.
In Watkins, the plaintiff was employed on two barges secured to each other by steel cables and used as a construction platform. The platform was placed at a right angle to the river, pushed close to the bank, and moored with spuds. The court found the two barges factually indistinguishable from the platform in Leonard.
The barge in the present case was not designed to be a stationary construction platform. It was used to transport a crane from one bridge footing to another to facilitate construction and repairs. The undisputed testimony at trial was that the barge was moved on the average of twice per week during the course of this particular project. In this respect, the barge is distinguishable from the platforms held not to be vessels in Cook, Leonard, and Watkins, and is similar to the barge in Brunet v. Boh Brothers Construction Co., 715 F.2d 196 (5th Cir.1983). In Brunet, the plaintiff's accident occurred aboard a piledriving barge known as the Barge 4000 Ringer, which carried a crane used to drive pilings into marshland. At the time of the accident, the barge was moored by cables running from deck engines to pilings driven in the marsh. However, the barge had been moved by tugboat four times during the six months preceding the accident. The court distinguished the Cook line of cases as follows:
We conclude that the trial court could not find as a matter of law that the barge in the present case was not a vessel for purposes of the Jones Act.
Defendant also challenges plaintiff's assertion that he was permanently assigned to Barge No. 103. "[T]he word `permanent' has never been given a literal interpretation under the Jones Act." Davis v. Hill Engineering, Inc., 549 F.2d 314, 326-27 (5th Cir.1977). In Ardoin v. J. Ray McDermott & Co., 641 F.2d 277, 281 (5th Cir.1981), the court stated:
However, a claimant can be permanently assigned to a vessel without performing a substantial part of his work on the vessel. Davis, 549 F.2d at 326 n. 22.
*535 There was evidence in this case that several barges were involved in the construction project. Each barge had a foreman and crew assigned to it. Plaintiff was taken to Barge No. 103 every day he worked on this project. All of the equipment needed for the job was on the barge. Plaintiff and the other crew members ate lunch on the barge and remained on it when it was moved from place to place. Although the majority of plaintiff's work was done in the cofferdam, he performed minor tasks on the barge, including some which aided in the navigation function of the vessel. There was sufficient evidence from which the jury could find that the plaintiff's connection with Barge No. 103 was not transitory, but rather that he was permanently assigned to the vessel.
Plaintiff maintains that he meets the second prong of the Robison test because his duties contributed to the accomplishment of the vessel's mission. It is clear that the mission of the barge was to aid in the construction of the bridge by transporting men and equipment. Plaintiff's duties as a concrete finisher could reasonably be found to contribute to that mission. See Ardoin, 641 F.2d at 282-83.
The issue of whether the plaintiff was a seaman was for the jury; it was error for the trial court to enter the JNOV.
Defendant argues that the trial court erred in not giving the following requested charges:
In addition, defendant requested the following charge, which was given by the trial court with the emphasized words deleted:
On the issue of whether plaintiff was a seaman, the trial court charged the jury with the requirements of the Robison test. The trial court also informed the jury that plaintiff must have more than a transitory connection with the barge. Defendant's Charge No. 6 is not a correct statement of the law in the eleventh and fifth circuits. Plaintiff must be permanently assigned to a vessel and his duties must contribute to the mission of the vessel under Robison and its progeny; plaintiff's duties need not be related to the navigation of the vessel.
Defendant's Charges No. 7 and 8 and the deleted phrase in Charge No. 11 concern the question of whether the barge was a vessel. The trial court's charge stated:
Charges No. 7 and 8 are based on the Cook line of cases. However, the requested charges overly emphasize certain aspects of the case without fully explaining the law. For example, Charge No. 7 is misleading in that it refers to the barge being stationary and secured to the cofferdam at the time of plaintiff's accident. It is the purpose for which the barge was constructed and the business in which it was engaged that is determinative of its status as a vessel; the fact that the barge was moored at the time of the accident is irrelevant. Similarly, Charge No. 8 refers to a craft tied to a pier or piling "virtually all of the time." This ignores the undisputed evidence in this case that the barge was moved on the average of twice weekly. Furthermore, this instruction is not reconcilable with the case law holding that a barge moved four times in six months can qualify as a vessel, whereas a construction platform moved regularly may not be a vessel. See Brunet, 715 F.2d at 197-98; Cook, 472 F.2d at 1001-02. Finally, the phrase "in navigation at the time and place of the plaintiff's accident" in requested Charge No. 11 could mislead the jury into believing that the barge had to be moving at the time of the accident.
On appeal, the entire charge is reviewed to determine if there is reversible error. Wright v. Rowland, 406 So. 2d 830, 831 (Ala.1981). Refusal of a written charge is proper when it is misleading or when it places undue emphasis on one phase of the evidence. Ott v. Smith, 413 So. 2d 1129, 1134 (Ala.1982); McCullough v. L & N Railroad Co., 396 So. 2d 683, 687 (Ala.1981). It was not error for the trial court to refuse to give defendant's requested charges.
Plaintiff's theory of liability was that the ladder being used to go from the barge to the cofferdam was too short and could not be properly secured. Plaintiff testified that the ladder the crew had been using before the accident had been removed that morning by another foreman and replaced with the defective ladder. Defendant argues that the trial court should have directed a verdict in its favor on the unseaworthiness issue because the accident did not happen on the barge and the barge had nothing to do with the cause of the accident.
In Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 2d 297 (1963), the Court held that a claim of unseaworthiness could be predicated *537 on faulty cargo containers which caused an injury ashore. The Court stated:
In Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944), a seaman was injured when he fell from a staging because of defective rope. The Court noted that the staging, which was an appurtenance to the vessel, was unseaworthy because it was inadequate for the purpose for which it was ordinarily used. The Court held that the presence of good rope on board which could have made the staging safe was irrelevant.
We conclude that the defendant was not entitled to a directed verdict on the unseaworthiness issue either because the accident occurred in the cofferdam or because the ladder which had been used earlier was safe.
During the closing argument by plaintiff's counsel on the issue of damages, the following argument, objections, and ruling occurred:
Defendant argues that the ruling was error because it was an appeal to the jury's sympathy by inviting the jurors to stand in plaintiff's position.
A request that the jurors put themselves in the place of the plaintiff is an improper argument. Estis Trucking Co. v. Hammond, 387 So. 2d 768, 773-74 (Ala.1980). However, courts have not been overly restrictive in applying this rule. Fountain v. Phillips, 439 So. 2d 59, 63 (Ala.1983). "The reluctance of the courts to find prejudicial error in these situations finds its motivation in the countervailing rule `that great latitude should be given counsel in the content and scope of their closing arguments.'" 439 So. 2d at 64 (quoting R.C. Bottling Co. v. Sorrells, 290 Ala. 187, 275 So. 2d 131 (1973)). A bare invitation for the jurors to put themselves in the place of the plaintiff without an appeal to the jurors' passions and feelings has been held to be nonprejudicial. Hayles v. Jeter, 279 Ala. 283, 184 So. 2d 363 (1966); British General Ins. Co. v. Simpson Sales Co., 265 Ala. 683, 93 So. 2d 763 (1957).
In the present case, the argument does not directly invite the jurors to put themselves in plaintiff's position, but rather refers to some unspecified imaginary individuals.[2] Defendant maintains that the "dozen people" is obviously the jury. However, the people are characterized as "31 or *538 32 years old, ... working men and women who have to use their bodies to get the job done." We cannot assume that all of the jurors fit this description.
The argument is designed to make the jury realize that a reasonable person in plaintiff's position would not agree to being injured. We conclude that it was not reversible error because it does not invite the jurors to place themselves as individuals in plaintiff's position.
Defendant's final challenge to the proceedings below is that the trial court erred in keeping from the jury evidence of plaintiff's receipt of workmen's compensation benefits and his lawsuit in Baldwin County for additional workmen's compensation benefits. It is clear that this evidence was inadmissible for the purpose of showing that plaintiff should not be compensated under the Jones Act because of prior and future compensation under the Workmen's Compensation Act. Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 84 S. Ct. 1, 11 L. Ed. 2d 4 (1963). Defendant argues, however, that the evidence was admissible to show that plaintiff did not consider himself to be a seaman. We disagree.
Plaintiff's subjective belief that he is or is not a seaman has no place in the legal test for determining his status under the Jones Act. Robison and the other cases discussed in Part I, supra, do not consider plaintiff's opinion a relevant factor.
Defendant's reliance on Savoie v. Otto Candies, Inc., 692 F.2d 363 (5th Cir.1982), is misplaced. In Savoie, the defendant had discharged the plaintiff from the vessel. However, defendant paid plaintiff seaman's maintenance after his injury. Plaintiff maintained that discharges were routinely given to seamen who were expected to return to the vessel in a few days. The central issue was whether plaintiff retained his status as a seaman after being discharged. In holding that admission of the evidence of maintenance payments was not prejudicial error, the court stated:
The court in Savoie held that admission of evidence of the payments was not reversible error; it did not hold that exclusion of the evidence would have been reversible error. Moreover, the evidence in that case was not admitted to show that plaintiff believed he was or was not a seaman, but was admitted to show what the defendant intended by the routine discharges. Thus, Savoie is distinguishable from the present case.
In holding that the trial court did not err in excluding evidence of the workmen's compensation payments and the pending lawsuit, we note that there is no dispute in this case that plaintiff will not receive a double recovery. It is clear that the trial court and the parties contemplated that the payer of the benefits would receive credit for the amounts already paid to plaintiff.
*539 In conclusion, we find that the trial court erred in granting defendant's motion for JNOV. Moreover, we do not find any error requiring the grant of a new trial. Therefore, let the JNOV be reversed and the case remanded to the trial court for reinstatement of the verdict and entry of judgment thereon.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] The Jones Act, 46 U.S.C.A. § 688, provides in part: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply...."
[2] See Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317, 1322-23 (Ala.1984), in which plaintiffs' counsel discussed an imaginary family at some length. Although we noted that some of the language "verg[ed] on an appeal to the sympathy of the jury," we did not decide the issue since the defendant had not made a proper objection to the argument. | August 23, 1985 |
62019b12-c00f-4b21-87ba-34bd5c106164 | Weninegar v. SS Steele & Co., Inc. | 477 So. 2d 949 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 949 (1985)
William E. WENINEGAR and Willie Jean Weninegar
v.
S.S. STEELE & COMPANY, INC.; Lomas & Nettleton Company; The Manhattan Savings Bank; and Mortgage Corporation of the South.
83-1408.
Supreme Court of Alabama.
September 27, 1985.
*951 Robert M. Montiel of Montiel, White & Grogan, Mobile, for appellants.
A. Danner Frazer, Jr. and Duane A. Graham of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee S.S. Steele & Co.
Caine O'Rear III and Blane H. Crutchfield of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees The Manhattan Sav. Bank and Lomas & Nettleton.
Jack R. Thompson, Jr. of Kracke, Thompson & Ellis, Birmingham, for appellee Mortg. Corp. of the South.
TORBERT, Chief Justice.
The Weninegars filed a complaint against Lomas & Nettleton Co., Manhattan Savings Bank, and Mortgage Corporation of the South, alleging negligence, breach of contract, and fraud for failing to pay a flood insurance renewal premium from the mortgage escrow account. The Weninegars amended their complaint to include their insurance agent, S.S. Steele & Company, Inc., stating a cause of action for fraud for failing to notify them of the policy's cancellation. All defendants moved for and were granted summary judgment.
The Weninegars bought their house in 1955. The Manhattan Savings Bank (Bank) holds the mortgage on the house. The mortgage contains provisions requiring the Weninegars to pay insurance premiums in advance, with the money to be held in escrow by the Bank or its agent. The Weninegars were required under the mortgage to maintain fire and hazard insurance. The Bank retained the right to specify the types and amounts of insurance to be carried on the mortgaged premises. In 1960, *952 the Bank contracted with Mortgage Corporation of the South (MCS) to service the Weninegars' mortgage, including the handling of all escrow funds and insurance matters.
The Weninegars allege that in 1975 they received written notice from MCS, the Bank, and/or the Veterans Administration (VA) that they were required to obtain flood insurance. MCS contends that, according to Mr. Weninegar's deposition, he became interested in flood insurance because he saw an advertisement for it in a newspaper and that he purchased the insurance on his own volition and not because he was required to do so. The Weninegars purchased the flood insurance from S.S. Steele & Company, their insurance agent. That agent allegedly designated on the insurance application that the Bank was to pay the renewal premium for the flood insurance when it became due. The Bank and MCS were sent copies of the application and the flood insurance policy, and MCS was allegedly notified to begin escrow for future payments. MCS denies receiving a notice to begin escrow. MCS never notified S.S. Steele & Company that it would not begin escrow for the premiums. The Weninegars' mortgage payments increased approximately $4.00 per month after they applied for flood insurance. The Weninegars claim they received notice from MCS that the escrow payments increased to pay for renewal of the flood insurance. MCS says the increase was due to a shortage in escrow.
The policy went into effect on July 5, 1975, and the Weninegars paid the first year's premium in advance. On May 25, 1976, MCS was instructed by the Bank to forward the Weninegars' file and escrow fund to Lomas & Nettleton Co. (L & N), the Bank's new servicing agent on the Weninegars' mortgage. L & N began servicing the mortgage on May 26, 1976, approximately six weeks before the renewal premium was due. Even though there were sufficient escrow funds, L & N did not pay the renewal premiums on the flood insurance. MCS, L & N, and S.S. Steele & Company, all received copies of the renewal notice, but none of them notified the Weninegars that the premium was due. The insurance policy lapsed for nonpayment.
Hurricane Frederic struck on September 12, 1979, and the Weninegars' house was flooded. The Weninegars were subsequently informed they had no coverage.
Steele reviewed the Weninegars' insurance file to find out what happened to the flood insurance. Mr. S.S. Steele of S.S. Steele & Company allegedly told the Weninegars that he had not received any notices on the insurance but that if his company was responsible for the cancellation of the insurance then the plaintiffs could sue it. The plaintiffs claim that they did not sue Steele's company initially because of these representations.
On March 26, 1980, the Weninegars filed a complaint in the Mobile Circuit Court, naming L & N, the Bank, and MCS as defendants, and alleging negligence, breach of contract, and fraud for failing to pay the flood insurance renewal premium from the mortgage escrow account. Mr. Steele's deposition was taken and a renewal notice on the plaintiffs' flood insurance was produced by Steele on January 26, 1981. In August 1981, the complaint was amended to substitute S.S. Steele & Company for a fictitious party named in the original complaint, stating a negligence claim against S.S. Steele & Company. In January 1982, the complaint was again amended to state a cause of action for fraud against S.S. Steele & Company. All defendants moved for and were granted summary judgments.
The following issues are presented for this Court's review:
I. Does Alabama have in personam jurisdiction over the Bank?
II. Is there a scintilla of evidence to support the Weninegars' allegation of breach of contract as against the Bank and MCS?
III. Is there a scintilla of evidence to support the Weninegars' allegations of breach of contract as against L & N?
*953 IV. Has the statute of limitations run on the causes of action alleging negligence against the Bank, MCS, and L & N?
V. Is there a scintilla of evidence to support the Weninegars' allegation of negligence against MCS and L & N?
VI. Is the Bank vicariously liable for negligence for the acts of its agents, MCS and L & N?
VII. Is there a scintilla of evidence to support the Weninegars' allegations of fraud against the Bank, MCS, and L & N?
VIII. Is there a scintilla of evidence to support the Weninegars' allegation of fraud against S.S. Steele & Company?
I. Does Alabama have in personam jurisdiction over the Bank?
The Bank contends that Alabama does not have in personam jurisdiction over it because it is a nonresident, with offices only in New York. The Bank argues further that the mere holding by a foreign corporation of a mortgage on Alabama property does not constitute doing business in Alabama, Ala. Const. of 1901, amendment 154; and, therefore, that Alabama cannot obtain jurisdiction over the Bank by using the long-arm statute (rule) because Rule 4.2(a)(2), A.R.Civ.P., is subordinate to the provisions of the Alabama Constitution.
Ala. Const. of 1901, amend. 154, § 1, provides:
Rule 4.2(a)(2) provides that "[a] person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person's ... (F) having an interest in, using, or possessing real property in this state." We do not find the procedural rule to be inconsistent with the constitutional amendment.
In Midwest Homes Acceptance Corp. v. Langdon, 287 Ala. 521, 253 So. 2d 29 (1971), we stated that Amendment 154 was "designed to permit foreign corporations to lend money to residents of Alabama and to take security for such loans in the form of mortgages on real property located within the state, and to enforce such obligations in the courts of Alabama." 287 Ala. at 523, 253 So. 2d at 30. Prior to adoption of Amendment 154, all contracts made in this state by any foreign corporation which had not first qualified to do business in Alabama were void at the option of the other party to the contract. Code 1940, Title 51, § 342. After the adoption of Amendment 154, the Legislature amended the foreign corporation statute to provide that any contract made in this state by a corporation which has not yet qualified to do business in this state is void at the option of the other party to the contract "unless said contract ... consists of a mortgage upon real property." Code 1975, § 40-14-4 (emphasis added).
Clearly, the sole purpose of the constitutional amendment was to allow a foreign corporation to enforce a mortgage agreement on Alabama property. Moreover, the express langauge of the amendment is that a foreign corporation holding a mortgage on Alabama property "may sue or be sued in this state in relation to any such mortgages held by it." It seems to be the position of the Bank that this language would allow only causes of action related to the validity of the mortgage itself or the indebtedness secured thereby. We find this position to be untenable. Instead, the suit is "in relation" to the mortgage if it is brought as a result of an alleged failure of a party to meet any obligation provided for in the terms of the mortgage. In the *954 present case, the mortgage agreement provided that the mortgagor would pay into escrow premium amounts on "fire and other hazards insurance" and that the mortgagee's servicing company would then pay the premiums when due; the plaintiffs alleged that the Bank failed to meet this obligation by failing to pay the flood insurance premiums.
Alabama courts do have in personam jurisdiction over the Bank by virtue of Amendment 154 and Rule 4.2(a)(2)(F). We find that there are sufficient contacts between Alabama and the Bank to make it fair and reasonable that the Bank come to Alabama to defend.
II. Is there a scintilla of evidence to support the Weninegars' allegation of breach of contract as against the Bank and MCS?
The plaintiffs argue that they were required, under the mortgage, to maintain insurance against fire and other hazards as specified by the Bank and to pay the premium sums into escrow. They claim they were notified that they were required to obtain flood insurance, and that they did so, naming the Bank as the party to pay renewal premiums. They argue that there was thus a valid and binding agreement between themselves and the Bank, which the Bank breached by failing to pay the flood insurance renewal premiums when they came due.
In July 1975, the same month the policy became effective, the plaintiffs' escrow payments increased by $4.00 per month. The plaintiffs allege that they were told that the increase was to pay for the flood insurance premiums. The Bank and MCS claim that they did not require the Weninegars to purchase flood insurance and, furthermore, that the escrow payment increases were "attributable to a concomitant increase in annual premiums on hazard insurance." Since there was a question of fact as to whether the Weninegars were required by the Bank to purchase flood insurance and as to the reason for the increase in escrow payments, we find that there was a scintilla of evidence on the issue of breach of contract by the Bank.
The plaintiffs claim breach of contract on the part of MCS by claiming to be thirdparty beneficiaries of the service contract between MCS and the Bank. (The issue of third-party beneficiary status is discussed in some depth in our discussion of Issue III.) About six weeks prior to the renewal date for the flood insurance, the Bank instructed MCS to transfer the Weninegars' mortgage file to L & N. MCS claims it transferred the file, but L & N denies receiving any documents, in particular the renewal notice, from MCS. MCS further claims that it was not the servicing company on the date the policy lapsed, and, thus, that it could not have notified the Weninegars of a lapse it was not aware of.
Summary judgment on the breach of contract claim against MCS was improper because of the factual disputes, such as whether the Weninegars were told that they were required to purchase flood insurance, whether the increase in escrow payments was to take care of flood insurance premiums, whether MCS properly serviced the mortgage, and whether MCS forwarded the Weninegars' file to L & N.
III. Is there a scintilla of evidence to support the Weninegars' allegations of breach of contract as against L & N?
The Weninegars alleged breach of contract against L & N on the basis of an implied contract between L & N and the Bank as to which the Weninegars are thirdparty beneficiaries. The Weninegars claim that L & N breached the implied contract when it did not pay the flood insurance renewal premium when it became due. They argue that L & N should have notified them if it did not intend to pay the premium from escrow. L & N argues that it did not have a duty to maintain the flood insurance because the Bank did not require the plaintiffs to obtain the insurance and because there was no evidence that L & N agreed to assume the duty of escrowing funds or paying flood insurance premiums. Finally, L & N argues that the Weninegars were not third-party beneficiaries because *955 the implied contract was not for their direct benefit.
Because the Bank changed servicing companies, with L & N performing the same duties previously performed by MCS, there was clearly an implied contract between L & N and the Bank. As to whether the Weninegars were third-party beneficiaries of the implied contract, two cases in particular are especially helpful.
In Beverly v. Macy, 702 F.2d 931 (11th Cir.1983), the court held that the plaintiff was a third-party beneficiary of a service agreement between National Flood Insurers Association and the insurer responsible for servicing the plaintiff's flood policy. The court examined the significance of the intentions of the parties and the plaintiff's reliance as they bore on her status as a third-party beneficiary:
In Harris v. Board of Water and Sewer Comm'rs of Mobile, 294 Ala. 606, 320 So. 2d 624 (1975), this Court held that the plaintiff was a third-party beneficiary of a contract between the city and the board of water and sewer commissioners wherein the board was charged with the water and sewer responsibilities; thus, plaintiff was allowed to maintain an action against the board for breach of contract when plaintiff's motel and restaurant were destroyed by fire because the fire hydrants at the scene were dry. In Harris, we reasoned as follows in determining that the plaintiff was a third-party beneficiary:
294 Ala. at 611, 320 So. 2d at 628. The present case is analogous to the aforementioned cases; therefore, we find that plaintiffs *956 are third-party beneficiaries of the contracts between the Bank and MCS and the Bank and L & N. Since there was a question as to whether the Weninegars were required to purchase the flood insurance and whether L & N received the premium notice, summary judgment was improper.
IV. Has the statute of limitations run on the causes of action alleging negligence against the Bank, MCS, and L & N?
Defendants allege that the issues of negligence are barred by the one-year statute of limitations because the Weninegars suffered legal injury in 1976 when the policy lapsed, yet did not file suit until 1979. Defendants rely on the recent cases of Armstrong v. Life Insurance Co. of Virginia, 454 So. 2d 1377 (Ala.1984) (medical insurance policy); Moore v. United States Pipe & Foundry Co., 384 So. 2d 1108 (Ala. Civ.App.1980) (life insurance policy).
Armstrong relies solely on Moore for the proposition that the negligence claim accrued when the policy lapsed rather than when an event which would trigger liability under the policy occurs. Moore clearly says just that. However, we believe that Moore is incorrect in this regard. Moore reached that conclusion because that court believed "plaintiff lost a substantial interest as the named beneficiary in the proceeds of the policy" at the time the policy lapsed, was therefore damaged, and had a cause of action. Id. at 1111. The court in Moore acknowledged that it was unaware of any direct authority to support its conclusion, and referred only to the case of Meyerson v. New Idea Hosiery Co., 217 Ala. 153, 115 So. 94 (1928). While Meyerson was factually similar, the Meyerson Court had a wholly different rationale for holding that the plaintiff's negligence claim failed. The Court in Meyerson held that because the complaint only alleged negligence in failure to give notice to the insured before allowing the insurance to lapse, only the insured, not the plaintiff (beneficiary) had a cause of action.
The exact issue presented in this case has been addressed by courts in at least four other states. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968); Wulfswinkel v. Gesink, 180 N.W.2d 452 (Iowa 1970); Spurlin v. Paul Brown Agency, Inc., 80 N.M. 306, 454 P.2d 963 (1969), Kunz v. Buckeye Union Ins. Co., 1 Ohio St.3d 79, 437 N.E.2d 1194 (1982). Each of these cases holds that the cause of action accrues when a loss triggering liability under the lapsed policy occurs. In Austin the Alaska Supreme Court said:
Austin, supra at 539.
We believe this to be the proper rule and overrule Moore to the extent it conflicts with our holding in this case. Therefore, plaintiff's negligence claims are not barred by the statute of limitations.
V. Is there a scintilla of evidence to support the Weninegars' allegations of negligence against MCS and L & N?
Because there is a dispute as to whether the file and escrow fund were properly forwarded and as to whether the increase in escrow payments was due to the flood insurance premiums, the summary judgments on the negligence counts were improper.
VI. Is the Bank vicariously liable for negligence for the acts of MCS and L & N?
*957 The existence and scope of a principal-agent relationship is generally a question of fact for determination by the jury; therefore, summary judgment on the issue of agency is inappropriate. Oliver v. Taylor, 394 So. 2d 945 (Ala.1981).
VII. Is there a scintilla of evidence to support the Weninegars' allegations of fraud against the Bank, MCS, and L & N?
The Weninegars failed to present a scintilla of evidence that there was an actual fraudulent intent not to perform all of the terms of the mortgage and an intent to deceive the Weninegars when the Bank entered into the mortgage agreement with them and when MCS and L & N began servicing the mortgage. See, D.H. Holmes Dept. Store v. Feil, 472 So. 2d 1001 (Ala. 1985); Kennedy Elec. Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983).
The claim of fraudulent concealment or suppression of facts is not subject to review, because it was not raised in the trial court. Green v. Taylor, 437 So. 2d 1259 (Ala.1983).
VIII. Is there a scintilla of evidence to support the Weninegars' allegation of fraud against S.S. Steele & Company?
We do not decide whether there was a scintilla of evidence to support this fraud count, because the count was barred by the statute of limitations. The amendment alleging fraud against S.S. Steele & Company did not relate back to the time of the original complaint under the fictitious party rule, because there was no cause of action for fraud stated against the fictitious parties in the complaint. Rule 9(h), Ala.R.Civ.P.; Robinson v. Graves, 456 So. 2d 793 (Ala.1984); Denney v. Serio, 446 So. 2d 7 (Ala.1984). In order to toll the running of the statute of limitations, a cause of action must be alleged in the complaint against the fictitious party. Robinson, supra, Minton v. Whisenant, 402 So. 2d 971 (Ala.1981). Finally, there is no relation back under the general relationback provisions of Rule 15(c), because there is no showing that S.S. Steele & Company knew or should have known that a mistake in identity had been made and that it was the intended defendant on the fraud count.
The Weninegars cannot bootstrap the fraud count by linking it to the negligence count which may have, arguably, been filed in a timely manner, because the theories of recovery are completely different. The trial judge did not err in granting summary judgment in favor of S.S. Steele & Company on the fraud count.
This case is hereby affirmed in part, reversed in part, and remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES and ADAMS, JJ., concur. | September 27, 1985 |
f146c6f0-5649-45da-bf02-5e4483230175 | Flav-O-Rich, Inc. v. City of Birmingham | 476 So. 2d 46 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 46 (1985)
FLAV-O-RICH, INC.
v.
CITY OF BIRMINGHAM, Alabama.
83-1235.
Supreme Court of Alabama.
August 30, 1985.
*47 D. Paul Alagia, Jr., John S. Keck, Joseph L. Hamilton, and E. Paul Herrington, III, of Barnett & Alagia, Louisville, Kentucky, and Erle Pettus, Jr., of Rives & Peterson, Birmingham, for appellant.
*48 William M. Pate, Jr., Asst. City Atty., for appellee.
SHORES, Justice.
Flav-O-Rich, Inc., appeals from a judgment in favor of the City of Birmingham, which had brought this action in the Circuit Court of Jefferson County to recover the unpaid portion of certain municipal use taxes and business license fees. We affirm.
The City of Birmingham claims that Flav-O-Rich owes $13,748.65 in license fees and $4,253.56 in use taxes. Flav-O-Rich, by counterclaim, alleged that it has overpaid and is entitled to recover $50,809.02 in license fees and $1,190.93 in use taxes. There is no dispute as to the amount of money in each category.
Dairymen, Inc. (Dairymen), is an agricultural cooperative organized under Kentucky law and is an association of dairy farmers who market their raw milk through it. Flav-O-Rich, also organized under Kentucky law, is a subsidiary of Dairymen[1] and was established to market its products. Dairymen has approximately 8,000 dairy farmer members, of which 178 are in Alabama. Flav-O-Rich purchases all of its milk from Dairymen, which, in turn, purchases that milk from both members and non-members.
Flav-O-Rich markets a line of products for Dairymen designed to be competitive with the products of other distributors in the market place. However, this product line is not limited to the dairy products of Dairymen, but includes certain non-dairy products produced by non-members, such as orange juice manufactured from a juice concentrate, hard cheese, sausage, biscuits, bread, ice cream cones, and fruit punch purchased in the form of a base and mixed with water. Less than 15% of Flav-O-Rich's sales are derived from the non-dairy products which are not produced by its members.
Flav-O-Rich contends that it is exempt from payment of the fees and taxes in question under §§ 2-10-105, XX-XX-XXX, and 40-9-1(12), Ala.Code 1975, and §§ 18(b), (c), and (d), 19, and 20 of the License Code of the City of Birmingham. The only issue in this case is whether the trial court erred to reversal in finding that Flav-O-Rich was not eligible for an exemption under any one of those sections.
The general rule in construing statutes granting exemption from taxation has been stated thusly:
Brundidge Milling Co. v. State, 45 Ala. App. 208, 210, 228 So. 2d 475, 477 (1969). However, such exemption clauses are not to be so strictly construed as to defeat or destroy the intent and purpose of the statute, and no strained statutory construction is to be given which would have that effect. Our responsibility is to give effect to the legislative intention where it is manifested. State v. Union Tank Car Co., 281 Ala. 246, 201 So. 2d 402 (1967).
Section 2-10-105, supra, reads as follows:
Chapter 10, consisting of §§ 2-10-1 through 2-10-108, Ala.Code 1975, deals with agricultural cooperatives and associations. These sections are divided into four articles, which are as follows: Article 1, General Provisions (§ 2-10-1); Article 2, Marketing Associations Generally (§§ 2-10-20 through 2-10-35); Article 3, Incorporated Marketing Associations (§§ 2-10-50 through 2-10-74); and Article 4, Mutual Farming or Trucking Associations (§§ 2-10-90 through 2-10-108). Articles 1 and 3 originated in the Acts of 1921, Article 2 came from the Agricultural Code of 1927, and Article 4 came from the Acts of 1935. While Articles 3 and 4 set forth separate and distinct schemes for the formation of cooperatives and associations, Articles 1 and 2 are intended to apply to all cooperatives and associations formed under any of these sections.
The trial court found that Flav-O-Rich was not eligible for the exemption under § 2-10-105 because it failed to secure a permit from the Commissioner of Agriculture and Industries pursuant to § 2-10-21, which reads as follows:
We agree. The accompanying sections of Article 2 set out the supervisory and investigatory powers of the Commissioner of Agriculture with respect to the formation of cooperatives and associations in this State. Section 2-10-105 provides an exemption to any corporation or association organized under Article 4. Any domestic corporation or association not complying with the prerequisites enumerated in Article 2, namely § 2-10-21, would not be "organized" under the article within the meaning of § 2-10-105 and, thus, would be ineligible for the exemption. Flav-O-Rich, although organized under the laws of Kentucky, commenced operations in Alabama in 1972, but failed to obtain the applicable permit until 1984. Consequently, for approximately 12 years, it was not authorized to engage in business in this state.[2] Therefore, *50 it follows that Flav-O-Rich's failure to comply with the provisions of Article 2 also renders it ineligible for the exemption contained in § 2-10-105.
Flav-O-Rich also contends that it is exempt under § 11-51-105, supra. That section reads as follows:
Noting that there are no cases construing this section, the trial court found that its applicability did not extend to Flav-O-Rich. Again, we agree, because Flav-O-Rich is not actually "engaged in the production of farm products" within the meaning of this section. Instead, it markets a line of products designed to be competitive with the products of other distributors in the market place. This product line is not limited to the dairy products of Dairymen, but includes other non-dairy products such as orange juice manufactured from a juice concentrate, fruit punch, sausage, bread, ice cream cones, hard cheese, and biscuits, all of which are not produced by its members.[3] When the farmers sell their products to Dairymen for further processing and marketing under the Flav-O-Rich name, § 11-51-105 does not extend the farmer's exemption to the subsequent sale.[4]
Finally, Flav-O-Rich argues that it is entitled to an exemption under § 40-9-1(12), supra. That section begins with the following language: "The following property and persons shall be exempt from ad valorem taxation and none other...." Following this specific reference to ad valorem taxes, there are 23 subsections which cover different types of property or entities. Of these 23 subsections, all but subsection 12 clearly refer to items which would be exempt from ad valorem taxes. However, subsection 12 reads as follows:
The trial court, applying the principle of "ejusdem generis",[5] found that § 40-9-1(12) was not applicable to Flav-O-Rich because it exempted only the payment of ad valorem taxes, which are not at issue. Flav-O-Rich insists that it is exempt under subsection 12 and that the principle of "ejusdem generis" should not restrict its application in this case. It argues that subsection 12 manifests a clear intention to provide an exemption to agricultural associations from "taxation of any character," not just ad valorem taxes.
We pretermit a discussion of the propriety of the trial court's application of the "ejusdem generis" principle, as we hold that subsection 12 exempts only the shows of agricultural associations and, therefore, is not applicable to Flav-O-Rich within the context of the present case. Subsection 12 evidences an intention on the part of the legislature to exempt certain athletic, educational, and entertainment "events," including state or county fairs, and stock, kennel, or poultry shows. It is logical then that "agricultural association" within the context of subsection 12 is in reference to a show. This construction is also strengthened by the legislature's grant of the exemption to agricultural cooperatives and associations in § 2-10-105, supra.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON and BEATTY, JJ., concur.
[1] Both Dairymen and Flav-O-Rich are agricultural cooperative associations qualified under 7 U.S.C. § 291 et seq. (1976), the Capper-Volstead Act.
[2] Flav-O-Rich asserts that it was granted retroactive authorization to engage in business in Alabama. It argues that it has secured two permits from the Department of Agriculture and Industries. It appears from the record that the first permit was invalid on its face because it was issued on September 10, 1984, and expired on August 31, 1984. The second permit was issued on September 10, 1984, and expires on August 31, 1985. In connection with this permit, Flav-O-Rich further argues that it has always been recognized as an agricultural association in good standing with the Alabama Department of Agriculture and industries, as evidenced by the following memorandum introduced into evidence:
"MEMORANDUM
"TO: Mr. Allen Leistner, Dairymen, Inc.
"FROM: Randy W. Alford, Marketing Division
"SUBJECT: Taxation of Agricultural Marketing Associations
"According to Title 2, Section 2-10-105 of the Code of Alabama, 1975, which says:
"`Any corporation or association organized under this article shall pay to the state the annual permit fee of $10.00 now required by law and shall pay all ad valorem taxes on its real and personal property; except, that all cotton and all other agricultural products which have been raised or produced in the state of Alabama, title to which may be held by such corporation or association in its own right or for the use and benefit of its members, and all goods and articles purchased or acquired by such corporation, whether in or out of the state, for its own use or for the use and benefit of its members for strictly agricultural or farm purposes in this state, shall, so long as held by such corporation or association, be exempt from taxation, nor shall such corporation be liable for any other license or privilege fee or tax for the purpose of engagingin or transacting business or otherwise in this state.'
"The By-Laws and Articles of Incorporation of Dairymen, Inc., and Flav-O-Rich, Inc., have been accepted by the Alabama Department of Agriculture and Industries as indications that these corporations have been established and operate as agricultural cooperatives within Alabama.
"Due to an oversight by the cooperatives, they failed to apply for a cooperative permit issued by this Department when they first began operating in Alabama. This situation has been remedied and Flav-O-Rich, Inc., has a valid current cooperative permit. As for previous years of operation, the Articles of Incorporation and By-Laws approved by this Department were valid and consequently, the corporation was performing as an agricultural cooperative with all the benefits and responsibilities which this encompasses."
We agree with the trial court that the issuance of the second permit running from September 10, 1984, to August 31, 1985, and the above memorandum do not constitute a retroactive permit. The two documents are nothing more than a recognition that Flav-O-Rich was entitled to a permit during that period.
[3] Flav-O-Rich argues that such products are necessary to enable it to compete in the marketing of its processed dairy products and that the members of Dairymen should not lose their status as farmers merely by joining together in a cooperative association to market their product. Our interpretation of this section, however, as being inapplicable to Flav-O-Rich is strengthened by the legislature's express grant of an exemption to agricultural cooperatives and associations in § 2-10-105, supra. We also note that the legislature has defined producers of agricultural products as "individual persons, partnerships, associations and corporations who produce such products either directly or as landlords, tenants or sharecroppers." See § 2-10-90(1), supra. Flav-O-Rich does not fit within this definition.
[4] Section 18(b) of the License Code of the City of Birmingham has a field of operation similar to that of § 11-51-105. It reads as follows:
"No license shall be required of any farmer, or other individual engaged in the production of farm products for the sale or other disposition of articles produced by them."
Sections 18(c) and (d), 19, and 20 contain provisions for the establishment of the exemption granted in § 18(b).
[5] It is a general principle of statutory construction that where general words follow the enumeration of particular classes of persons or things, the general words may be construed under the "ejusdem generis" rule as being applicable only to persons or things of the same general nature or class as those specifically enumerated. Ross Jewelers v. State, 260 Ala. 682, 72 So. 2d 402, 43 A.L.R.2d 851 (1953); Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939). | August 30, 1985 |
d536bb9c-ee9d-4619-9ed2-a945897eba50 | Peninsular Life Ins. Co. v. Blackmon | 476 So. 2d 87 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 87 (1985)
PENINSULAR LIFE INSURANCE COMPANY
v.
Charlie A. BLACKMON.
83-1414.
Supreme Court of Alabama.
September 4, 1985.
Rehearing Denied November 8, 1985.
*88 James T. Upchurch III of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Robert M. Alton, Jr., Montgomery, for appellee.
BEATTY, Justice.
This is an appeal of a judgment based on a jury verdict finding breach of an insurance contract and bad faith failure to pay a claim. We affirm in part, reverse in part, and remand with directions.
Charlie A. Blackmon was employed as a debit agent with Peninsular Life Insurance Company (Peninsular). His job consisted of selling insurance policies and collecting premiums, primarily door to door. As a fringe benefit of his employment, Blackmon had disability coverage supplied by Connecticut General Life Insurance Company (Connecticut General). Because this policy did not pay benefits until an employee was totally disabled for six months, Peninsular maintained a supplemental disability plan whereby an employee could receive temporary disability coverage during the six-month waiting period. Peninsular paid the amount of this temporary disability out of its general operating revenues, without withholding any premiums from its employees. The supplemental plan was an oral agreement; there was no written policy, no formal mechanism for evaluating claims, and no definitions for determining if an employee was totally disabled, and the plan was not regulated by the state insurance department. The amount and duration of the coverage that an employee could receive depended on his length of service with Peninsular. In Blackmon's case, he was entitled to $2,086.19 during a maximum of 13 weeks' disability.
Blackmon suffered from several health problems, including diabetes mellitus, glaucoma, hypertension, chronic obstructive lung disease, bilateral clubbed feet, degenerative arthritis, and a right inguinal hernia. In March 1982, he underwent surgery to repair the hernia and, as a result, missed 10 weeks of work. He filed for disability under the supplemental plan and received compensation.
Early in May 1982, Blackmon was told that if he did not return to work by May 17, 1982, he would be fired. He returned to work on that day, but still continued to suffer from various medical problems.
During the next eight months, Blackmon did not miss a day of work, but his production, apparently measured largely by the premiums collected, steadily declined. On January 24, 1983, he was notified that because of his declining production he was being discharged effective January 28, 1983. On January 26, 1983, Blackmon visited his doctor and received a note stating that his medical condition was preventing *89 him from working "at his usual pace" and that he needed "more time" to recuperate. Blackmon presented this note to his supervisor and requested to be placed on disability status. Nevertheless, Blackmon was discharged on January 28.
Thereafter, Blackmon's doctor sent a letter to Peninsular stating that his medical problems were responsible for his declining production and asking that he not be terminated. Blackmon later received a doctor's statement indicating that he had been totally disabled since June 1982. Blackmon filed a claim with Peninsular under the supplemental plan; his claim was denied.
Blackmon brought suit against Peninsular and Connecticut General, alleging breach of contract and bad faith failure to pay. Connecticut General was dismissed from the suit by way of summary judgment. Peninsular also moved for summary judgment, but its motion was denied, as were its later motions for directed verdict, J.N.O.V., and new trial. The jury returned a verdict for Blackmon of $2,086.19 on the breach of contract count and $175,000 on the bad faith count.
Peninsular appeals here, raising the following issues: (1) Whether a contract of insurance existed between Peninsular and Blackmon, and (2) whether the trial court erred by denying Peninsular's motion for directed verdict on the bad faith claim.
As this Court has previously stated, although every contract implies an obligation of good faith and fair dealings, the only breach of contract which gives rise to a tort cause of action for "bad faith" is breach of a contract of insurance. Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983).
Peninsular does not dispute the jury's finding that a contract existed between it and Blackmon and that the contract was breached. Peninsular, however, argues that the contract was not one of insurance, giving rise to a bad faith claim, and, therefore, that the trial court erred in not granting its motion for a directed verdict. We agree.
The tort of bad faith refusal to pay a claim has heretofore been applied only in those situations where a typical insurer/insured relationship existed; that is, where the insured or his employer entered into a written contract of insurance with an insurer and premiums were paid into a central fund out of which claims were to be paid. We are very hesitant to expand the tort beyond these narrow circumstances.
Under the facts of this case, the relationship between Peninsular and Blackmon certainly was not typical of that which exists between an insurer and its insured. Instead, it is much more akin to that existing between an employer and his employee. Consequently, while the jury was correct in holding that a contract existed obligating Peninsular to pay Blackmon the disability compensation he seeks, and while that contract may bear some resemblance to a contract of insurance, it is not an insurance contract within the meaning of our cases defining the tort of bad faith. Therefore, the trial court erred in not granting Peninsular's motion for directed verdict on the bad faith claim, and the judgment based on the jury's verdict granting $175,000 in damages based upon that claim must be reversed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.
All the Justices concur, except MADDOX, J., who recuses himself. | September 4, 1985 |
c41c7118-975c-4fa1-9822-469815ee5a27 | Lott v. Toomey | 477 So. 2d 316 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 316 (1985)
Jake E. LOTT, Sr.
v.
Leona TOOMEY, Special Administratrix and Administratrix of the Estate of Barbara Jean Murphy, Deceased, and The Foxboro Company, a corporation.
No. 84-418.
Supreme Court of Alabama.
September 20, 1985.
Rehearing Denied October 4, 1985.
*317 Joseph J. Boswell, Mobile, for appellant.
Herman D. Padgett of Stanard & Mills, Mobile, for appellees.
MADDOX, Justice.
The issue in this case is the validity of a common law marriage in light of a previously undissolved ceremonial marriage. This same set of facts has been previously appealed twice to the Court of Civil Appeals. See, Courtaulds North America, Inc. v. Lott, 403 So. 2d 240 (Ala.Civ.App.), cert. denied, 403 So. 2d 244 (Ala.1981); and Courtaulds North America, Inc. v. Lott, 435 So. 2d 738 (Ala.Civ.App.), aff'd, 435 So. 2d 742 (Ala.1983). Only one party to these prior appeals is a party to the present action. In both prior appeals a judgment supporting the later common law marriage was reversed by the Court of Civil Appeals. After the second reversal, the parties agreed for the court to enter a consent decree, again upholding the validity of the common law marriage. In the present case, the trial judge held that this consent decree is not binding on the present parties. We affirm.
The judge below made the following findings of fact:
(1) Barbara Jean Murphy (Barbara) married Clarence Murphy (Clarence) in a ceremonial marriage in 1954 in Mobile County, Alabama. Later that same year, Barbara and Clarence moved to Chicago, Cook County, Illinois, and resided there together continuously until 1959.
(2) In 1959, Barbara and Clarence voluntarily separated and Barbara left Chicago and moved to California and resided there *318 continuously until 1962. The only known county in which Barbara resided in California was Los Angeles County.
(3) In 1962, Barbara left California and moved to Alabama and resided continuously in Alabama until her death. The only counties in which Barbara resided in Alabama upon her return in 1962 were Mobile and Elmore.
(4) From the date of their marriage until the date of Barbara's death, the only counties in which Clarence resided were Cook County, Illinois, and Mobile County, Alabama.
(5) From the date of their marriage until the date of Barbara's death, Clarence neither initiated divorce proceedings nor was aware of any proceedings initiated against him by Barbara. Clarence was never served with divorce papers after his marriage to Barbara.
(6) In the records of the courts of competent jurisdiction in Mobile County, Alabama, Elmore County, Alabama, Cook County, Illinois, and Los Angeles County, California, no record can be found of a divorce between Barbara and Clarence.
(7) Barbara died in Mobile County, Alabama, on February 2, 1979.
(8) On December 28, 1983, final judgment was entered in a workmen's compensation case filed by Jake Lott (Lott), in which Lott was alleged to have been a dependent of Barbara at the time of her death within the meaning of the Alabama workmen's compensation laws, against Courtaulds North America, Inc., (Courtaulds), Barbara's employer at the time of her death. Prior to the date of the final judgment, Clarence, earlier made a party defendant, was voluntarily dismissed.
(9) The judgment in the workmen's compensation case was entered upon findings of fact and conclusions of law agreed to by Lott and Courtaulds. No true judicial determination was made by the court in the workmen's compensation case; rather, the final judgment and order in that case were prepared by Lott prior to the date of entry, agreed to by Courtaulds prior to such date, and entered by the court in form as presented.
(10) One conclusion of law by the court in the workmen's compensation case was that Lott was the common law husband of Barbara at the time of Barbara's death.
(11) The workmen's compensation settlement was agreed to by Lott and Courtaulds only after earlier judgments in that case in favor of Lott had been twice reversed on appeal. The subject of each appeal was evidence offered by Courtaulds to show that the marriage of Barbara and Clarence was never dissolved prior to Barbara's death.
(12) Leona Toomey (Leona) was not a party to the workmen's compensation case. Her interests were not represented therein by any party. On October 28, 1983, Leona's application to intervene in the workmen's compensation case was denied.
The present action was filed by Lott against Leona and the Foxboro Company. Leona, as personal representative of Barbara's estate, had filed a wrongful death action against Foxboro pursuant to Code 1975, § 25-5-11. The two actions were consolidated for trial. Thereafter, Lott filed this declaratory judgment action, and prayed that the pending wrongful death action be stayed until a decision on the merits of this case could be reached. The trial court ruled in favor of Leona.
Leona contends that due to the undissolved marriage between Barbara and Clarence, Barbara was barred from contracting a valid common law marriage with Lott. This same issue was the subject of the two previous cases involving Lott. Lott claims, in part, that due to the prior disposition of this issue, Leona is barred by the doctrines of res judicata and collateral estoppel from relitigating it. Lott further claims that Leona has no standing to challenge the common law marriage, and that even if she does, she failed to sustain the burden of proof. We disagree with Lott, and, therefore, affirm.
The elements of both res judicata and collateral estoppel were set out by this *319 Court in Wheeler v. First Ala. Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala. 1978). Res judicata requires (1) a prior judgment rendered by a court of competent jurisdiction; (2) a prior judgment rendered on the merits; (3) substantially the same parties in both suits; and (4) the same cause of action in both suits. Where these elements are present, the former suit bars any later suit on the same cause of action, including issues that were or could have been litigated in the prior case.
Collateral estoppel requires (1) an issue identical to one litigated in the prior suit; (2) that the issue has been actually litigated in the prior suit; and (3) that the resolution of that issue have been necessary to the prior judgment. In addition, the parties must have been the same in both suits. Where these elements are present, the parties are barred from relitigating issues actually litigated in a prior suit.
The judge below determined that Leona, as the personal representative, was the proper party to bring suit against Foxboro. Thus, she was not bound, either by res judicata or collateral estoppel, from litigating the issues determined by consent decree in the previous cases. A consent decree, the judge determined, is binding upon only the parties who agreed to it, and not to a stranger to the agreement. In other words, the judge held that Leona was not a party to the former suit, and that the consent decree was not a final determination on the merits. We agree.
In order for one suit to bar subsequent litigation, the parties must have been substantially the same in both cases. This means that the parties in both cases must be either the same, or in privity of estate, blood, or law with the original parties. Clark v. Whitfield, 213 Ala. 441, 444, 105 So. 200, 203 (1925). Leona had no opportunity to present her arguments in the prior case, nor were her interests adequately represented by those who were parties. Her attempt to intervene in the previous lawsuit was denied; thus she was not personally represented in the case. Nor did Clarence and Courtaulds, the two litigants in the first action against Lott, represent her adequately so as to bar the present suit. Clarence was dismissed prior to trial and Courtaulds settled with Lott.
Further, the act of the settlement indicates that the issue of the validity of the common law marriage has not been fully and finally litigated. In their settlement, Courtaulds stipulated that Barbara and Lott were validly married. As Lott notes, a consent decree is binding only on the parties to it. Cowley v. Farrow, 193 Ala. 381, 384, 69 So. 114, 115 (1915). However, not having been a party to the prior litigation, Leona is not so bound. Thus, as to her, the previous litigation was not settled on the merits. Rather, as pointed out in Cowley, 193 Ala. at 384, 69 So. at 115, a consent decree is more in the nature of a contractual obligation.
Lott also argues that Leona has no standing to litigate the issue of the invalidity of the common law marriage. However, the right of a stranger to a marriage to litigate its validity has been determined in the prior suit. In Courtaulds North America, Inc. v. Lott, 435 So. 2d 738 (Ala. Civ.App.), aff'd, 435 So. 2d 742 (Ala.1983), it was held that Courtaulds had the right to have admitted into evidence divorce records of the counties where Barbara lived in order to disprove any possibility of divorce. If Courtaulds has standing to litigate this issue, so does Leona, as, if the common law marriage is proven invalid, she will be the correct party to litigate the wrongful death action. See, Code 1975, § 6-5-410. Thus, her interest is sufficient to grant standing.
As to Lott's final contentions, the Court adopts portions of the trial judge's opinion as its own:
"This Court has before it affidavits from each of the four counties where the evidence shows Clarence and Barbara to have lived, indicating the lack of any record of divorce. In the absence of any showing that either of the spouses might have established residence in any other jurisdiction and therein obtained a divorce, Leona has established the existence of the legal impediment of a prior *321 undissolved ceremonial marriage between Barbara and Clarence which would have prevented Barbara and Lott from contracting a common law marriage. To require more would be to assign an irrebuttable nature to the presumption herein considered. While Leona, in this case, `... has the burden of proving that the prior marriage was undissolved,... such burden must not require the impossible.' Courtaulds North America, Inc. v. Lott, 435 So. 2d 738 [Ala.Civ.App.], aff'd, 435 So. 2d 742 (Ala.1983)."
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES, BEATTY and ADAMS, JJ., concur.
JONES, J., concurs in the result.
ALMON and EMBRY, JJ., not sitting. | September 20, 1985 |
bfdd4045-9bda-4e30-8bcb-1fabc4e9e2ad | Fain v. Smith | 479 So. 2d 1150 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1150 (1985)
L. Duncan FAIN and Jean Fain
v.
Dr. R.T. SMITH and Dr. Bryan C. Delaney.
84-138.
Supreme Court of Alabama.
September 6, 1985.
Rehearing Denied November 8, 1985.
*1151 John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
Ralph H. Ford of Ford, Caldwell, Ford & Payne, Huntsville, for appellee Dr. R.T. Smith.
W. Stancil Starnes and W. Hill Sewell of Starnes & Atchison, Birmingham, for appellee Dr. Bryan C. Delaney.
PER CURIAM.
The plaintiffs appeal from a judgment entered on a jury verdict in favor of the defendant physicians in a medical malpractice case.
The Fains brought the action against Doctors Delaney and Smith, charging that each of them negligently failed to inform plaintiff-patient Duncan Fain of the risks involved in the performance of a pulmonary arteriogram by Dr. Smith. Jean Fain's claim is for loss of consortium. The plaintiffs charge that they were injured on April 2, 1980, when Duncan Fain's heart was punctured during the procedure. The plaintiffs also assert that Dr. Smith was instructed to terminate the procedure prior to the time the patient's heart was punctured.
*1152 The trial judge, in permitting the case to go to the jury, anticipated that this court would, although it has not heretofore expressly said it would, recognize a cause of action for medical malpractice where a physician fails to get the informed consent of the patient. He also correctly held that whether the physicians had disclosed all of the material risks of the procedure was a factual issue to be resolved by the jury, and that the test for the determination of that issue was a professional one, i.e., whether the physicians had disclosed all the risks which a medical doctor practicing in the same field and in the same community would have disclosed. Expert testimony is required to establish what the practice is in the general community. This was supplied in this case.
We think the legislature has adopted the traditional view that the doctor's duty to get the informed consent of the patient must be measured by a professional medical standard.
The trial court, therefore, correctly charged the jury:
There was no difference in the position of the plaintiffs and the defendants with respect to what the patient should be told regarding a pulmonary arteriogram. The issue on which they disagreed was whether the patient had, in fact, been advised of the risks involved and, if not, whether the failure to so advise him proximately caused his injuries. The causation issue is the primary point of difference between the parties on appeal.
Both sides agree that this issue is one of first impression in this state. However, many other states have considered the question and two lines of cases have developed. The majority has adopted the socalled objective standard, while a minority has adopted the so-called subjective standard. The plaintiffs urge us to adopt the minority subjective standard, by which causation is established solely by the testimony of the plaintiff that he would not have consented to the procedure had he been advised of the particular risk in question. Under this standard, proof of causation turns exclusively on the credibility of testimony of the patient. This view necessarily poses a purely hypothetical question, which is, as framed by Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L. Rev. 628, 647 (1970): "Viewed from the point at which he had to decide, would the patient have decided differently had he known something he did not know?" Having posed the question in this way, the authors make the following observations:
Most courts which have considered the question, beginning with the United States Court of Appeals for the District of Columbia Circuit in the case of Canterbury v. Spence, 464 F.2d 772, 790-791 (D.C.Cir. 1972), have rejected the subjective test in favor of the objective standard. That particular court said:
In Woolley v. Henderson, 418 A.2d 1123, 1132 (Me.1980), the Supreme Court of Maine rejected the subjective standard, stating:
The Maryland Court of Appeals in Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977), adopted the objective standard and rationalized its rejection of the subjective standard thusly:
379 A.2d at 1025.
Plaintiffs contend in brief that the objective standard does away with consideration by the jury of the patient's testimony concerning his thoughts. This is not true. As the defendants point out in brief, under the objective view, the patient's testimony occupies the same place in the jury's deliberative process that the testimony of a defendant charged with assault with intent to kill occupies when that defendant testifies that he did not intend to kill the other party. It is pertinent testimony, but not conclusive of the issue. The jury takes that testimony into consideration along with other facts in determining whether the testimony is to be believed. As stated by the Maryland Court of Appeals in Sard v. Hardy, supra, when adopting the objective standard:
379 A.2d at 1025.
The majority, in the better reasoned cases, adheres to the objective standard.
Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 515-516, 502 P.2d 1, 11-12 (1972). See, also, Miller v. Kennedy, 11 Wash. App. 272, 522 P.2d 852 (1974); Cunningham v. United States, 683 F.2d 847 (4th Cir.1982); Archer v. Galbraith, 18 Wash. App. 369, 567 P.2d 1155 (1977); Dries v. Gregor, 72 A.D.2d 231, 424 N.Y.S.2d 561 (1980); Todd v. United States, 570 F. Supp. 670 (D.S.C. 1983); Hartke v. McKelway, 707 F.2d 1544 (D.C.Cir.1983).
We agree that the objective standard is fairer to both plaintiff and defendant.
Commentators who have studied the law of informed consent agree that the objective standard is the preferable test of causation in informed consent cases. For example:
F. Rozovsky, Consent to Treatment, 62-63 (§ 1.13.4, "Causation in Negligent Consent") (1984).
Likewise, in their treatise on medical malpractice, two legal experts in this field have advocated the adoption of the objective standard:
1 S. Pegalis and H. Wachsman, American Law of Medical Malpractice, 103-104 (§ 2:15, "To Obtain an Informed Consent") (1980).
We note, however, that the objective standard requires consideration by the factfinder of what a reasonable person with all of the characteristics of the plaintiff, including his idiosyncrasies and religious beliefs, would have done under the same circumstances.
We also emphasize that by adopting this standard, we do not suggest that the plaintiff cannot testify as to what he would have done if full disclosure had been made. His testimony, albeit hindsight, is material and relevant and entitled to be considered by the jury. It simply is not conclusive of the causation issue.
We hold that the trial court properly charged the jury on the causation issue.
The plaintiffs finally argue that a certain remark by the trial court during its charge to the jury constitutes an impermissible comment on the evidence. This argument would, of course, be more persuasive if we had adopted the subjective test of causation advocated by the plaintiffs. Since we have, however, rejected the subjective standard in favor of the more generally accepted objective standard, we hold that the comment, when viewed in the light of the court's entire charge, was not inconsistent with substantial justice. Rule 61, A.R. Civ.P.
The plaintiffs complain of the court's use of the phrase "hindsight and self-serving." Of course, the testimony was hindsight, and it was self-serving. The court correctly allowed it nonetheless. We agree that the comment was necessary to explain to the jury that this testimony alone could not constitute conclusive proof of causation. The entire charge on causation follows:
We find no reversible error. The trial court properly charged the jury on the applicable law. A fact issue was presented on two issues: Did the defendants adequately inform the patient of the material risks involved and, if not, did the patient's uninformed consent cause his injury? By its verdict in favor of the defendants, the jury has resolved one or both of these against the plaintiffs.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.
ALMON, J., concurs in the result.
FAULKNER, JONES and ADAMS, JJ., dissent.
JONES, Justice (dissenting):
I respectfully dissent. In the name of "fairness," the majority opinion, at the very least, substantially compromises the fundamental right of self-determination.
More often than not, when the respective members of this Court differ as to the appropriate result in a given case before us for decision, that difference is grounded on a common premise. That, unfortunately, is not the case here. Our disagreement stems from a different understanding of basic, traditional tort concepts. The majority's holding diverts the focus of the jury's determination of causation away from the patient, who, as a competent adult, is vested with the exclusive right to give or withhold informed consent to a proposed medical procedure. Instead, the opinion redirects the focus of the jury's determination upon the hypothetical "reasonable person" *1157 to test whether the breach of duty by defendant doctors proximately caused this patient's injuries.
I would address the issues here presented thusly:
This appeal presents an issue of first impression in Alabama: In a medical malpractice failure-to-inform action, is the proximate cause element determined by a "reasonable person" standard or by a "patient's perspective" standard?
As in all tort actions for damages, an element of Plaintiffs' prima facie case is proximate cause.[1] In some jurisdictions, a plaintiff satisfies this proximate cause element simply by proving that but for the doctor's failure to inform him of the risks, he would not have been injured, because he would not have consented to the operation or procedure. See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla.1980). For the sake of brevity, I refer to this test as the "patient's perspective" standard.
Other jurisdictions, however, adhere to the "reasonable person" proximate cause standard. In these jurisdictions, to satisfy this element of his claim, a plaintiff must prove that, but for the doctor's failure to inform him of the risks, a reasonably prudent person similarly situated would not have consented to the operation, and thus would not have been injured.[2] See, e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.1972).
In the instant case, Plaintiffs argue that proximate causation should be tested under the "patient's perspective" standard. Defendants argue that the proper test is the "reasonable person" standard. In my opinion, the Court's analysis of this "first impression" issue should begin with an examination of the reasons behind Alabama's recognition of a failure-to-inform medical malpractice action.
Having existed for only a quarter of a century or so (C. Lidz, A. Meisel, E. Zerubavel, M. Carter, R. Sestak, and L. Roth, Informed Consent: A Study of Decisionmaking in Psychiatry 10 (1984)), the doctrine of "informed consent" is a relatively new development in the law. In its simplest form, the "informed consent" doctrine requires a doctor to inform his patient of the risks attendant to his performance of a procedure or operation upon that patient. Because of the "informed consent" doctrine, a patient's bare signature on a consent form may no longer protect a doctor from liability. Even though a patient signs a consent form, if his doctor (or the form) does not inform the patient of the risks of a *1158 procedure or operation, the doctor, nonetheless, may be liable for failure to inform.
Thus, through the common law process, a new cause of action evolved to compensate patients injured as a result of the breach of this duty and to encourage doctors to inform their patients of the risks attendant to a proposed procedure or operation. Essentially, the newly created remedy found its rationale in man's inherent right of self-determination as a "fundamental tenet of English and American common law." Capron, Informed Consent in Catastrophic Disease Research and Treatment, 123 U.Pa.L.Rev. 340, 346 (1974).
Judge Cardozo, in simple, eloquent language, explained in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914):
Judge Cardozo's statement was made in an assault and battery context in which no consent at all was obtained. See, also, Donald v. Swann, 24 Ala.App. 463, 137 So. 178 (1931), cert. denied, 223 Ala. 493, 137 So. 181 (1931). His statement was still applicable some forty years later, however, when courts began to realize that requiring consent in its barest form did not fully protect this human right of self-determination.[3] The patient is not truly afforded this fundamental right when he consents to a procedure without being informed of its risks or alternatives. Hence, the birth of the informed consent doctrine and its corresponding failure-to-inform remedy.
With this background in mind, the precise question before us may be rephrased: Which of the two recognized proximate cause standards in a failure-to-inform action best complements, protects, and ensures the patient's right of self-determinationthe very reason behind the judicial recognition of this cause of action? It seems clear to me that we need only answer one further question before a choice between the two standards becomes clear: Is it the aim of the law to protect only the reasonable patient's right of self-determination? The obvious answer is "Of course not." The right of self-determination, the "inviolability of ... [one's] person, ... his right to himself," (Pratt v. Davis 118 Ill. App. 161, 166 (1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906)), is a right not reserved for reasonable persons alone.
In so answering, I join the majority of many commentators who have answered similarly:
To adopt the "reasonable person" standard would be to "deny the patient-subject with special `fears and hopes,' or the religious beliefs of a Jehovah's Witness, the right to make a decision." Id. at 420. Furthermore, its application bars "recovery by a patient whose idiosyncratic decision making takes him outside the realm of the *1159 `reasonably prudent person.' This is equivalent to a defense of contributory negligence, which has no place in an action for failure to obtain informed consent." Id. at 410.
Therefore, I would hold that the proper proximate cause standard in an Alabama failure-to-inform action is the "patient's perspective" standardwhat would this patient have decided if he had been adequately informed?
My resolve that the "patient's perspective" standard is the proper causation standard for this State is strengthened by the result of the hypothetical "flip-side" of the present situation. Suppose that, as in the present case, Mr. Fain underwent a pulmonary arteriogram and his heart was punctured. At trial, however, Mr. Fain concedes that he gave informed consent to the doctors for the performance of the procedure. But he then argues that the consent was invalid because the "reasonable person" would not have consented. In other words, he says he knew all the risks, he was informed, and he consented, but he was unreasonable in consenting; and, therefore, the doctors should be liable for proceeding with the arteriogram and injuring him.
Such an argument, of course, is absurd. It is axiomatic that, absent actionable negligence in the performance of the procedure, "[o]nce obtained in a proper manner, informed consent is tantamount to the patient thereafter `assuming the risks' inherent in the care or treatment consented to by him.... `Having been effectively informed, the patient himself assumes the risks of treatment ... this being the legal doctrine of "assumption of risk."'" F. Camps, Gradwohl's Legal Medicine 425 (3d ed. 1976) (quoting E. Rose, Law in Medical Practice: Sourcebook in Medical Jurisprudence (1971)). Logically, if the law allows patients to be unreasonable when they give consent, the law should allow them to be unreasonable when they withhold consent. As discussed below, I have heard no arguments so compelling as to persuade me to depart from the logic of consistent "flip-side" results and adopt the "reasonable person" standard.
In addition to denying some patients their right of self-determination and being inconsistent with the "flip-side" situation, in the context of the informed consent causation issue, the "reasonable person" standard becomes rather nebulous. Reasonable people can and do differ in the highly individual context of personal health care. In recognition of this fact, one commentator has stated:
The "reasonable person" standard for testing causation, in this context, then, is no longer a standard of "objectivity"the quality so highly praised by its proponents. Instead, it becomes a "subjective" standardnot one "subjective" standard as in the case of the "patient's perspective" standard, but a subjective standard as to each and every juror (at which point, of course, it is no longer a "standard" at all). If there is no one reasonable person, each juror is left with subjectively determining what he or she would have done (e.g., "Well, I'm reasonable, so what would I have done in this situation?").
*1160 In arriving at my decision, I am not unaware of, and have not ignored, the arguments in favor of the "reasonable person" standard. Defendants and others opposing the "patient's perspective" standard most vigorously argue that its adoption allows the jury to consider a plaintiff's testimony that is colored by bitterness and transformed by hindsight. Canterbury states that the "patient's perspective" standard "places the physician in jeopardy of the patient's hindsight and bitterness." Canterbury v. Spence, supra, at 790.
Certainly, human nature is such that only the rare patient, if not the nonexistent patient, can truly rise above bitterness and place himself backwards in time, imagine that he had been informed, and ask himself what he would have done, without considering the already-known result. I acknowledge this, and yet I do not agree that it places the defendant doctor in any sort of "jeopardy." To accept such an argument against adoption of the "patient's perspective" standard is to accept implicitly the idea that juries are devoid of any understanding of human nature. Juries are not so ignorant.
As one commentator has noted, "Questions of the influence of hindsight and bitterness are familiar to juries, as is the problem of self-serving testimony generally." Katz, supra, at 164. Other commentators have also refused to accept the idea that juries cannot adequately recognize and adjust for bitter testimony based on hindsight:
Thus, because I believe that a jury can recognize and adjust for self-interest, hindsight, and bitterness in a plaintiff's testimony, I cannot find any undue prejudice to a defendant doctor in allowing the jury to consider such testimony as part of the "patient's perspective" standard.
Furthermore, I would point out that the "reasonable person" standard does not *1161 keep a plaintiff's self-serving, bitter testimony colored by hindsight from the jury. On the contrary, even under the "reasonable person" standard, before plaintiff may recover the jury must still consider and believe plaintiff's testimony to the effect that he would have declined the procedure if he had been informed.[4] As explained by one commentator:
Moreover, any causation determination arises only in the context of the doctor's culpability. That is to say, only after the factfinder decides the "breach of duty" element against the doctor is the test for proximate cause invoked. The Oklahoma Supreme Court in Scott v. Bradford, supra, at 559, said it this way:
Another argument Defendants advance against the "patient's perspective" standard is that it precludes recovery in the case of a dead patient. Specifically, they argue that, if a "patient's perspective" standard is used, the patient who dies during an unconsented-to operation (i.e., "unconsented to" in the sense of lack of informed consent) will be unable to recover for the failure to inform, because, obviously, he cannot testify at trial that he would have declined the operation if he had been informed of the risks. Indeed, "it would be unjust to bar recovery when the harm caused by a possibly unconsented-to medical procedure was so great as to prevent the injured party from testifying, just as defendants who killed their victims, before Lord Campbell's Act, were less in jeopardy than those whose conduct had not been fatal." Capron, supra, at 419 n. 194.
But I do not agree with Defendants that the "patient's perspective" standard would bar such a plaintiff from recovering. Juries make inferences every day from proffered evidence in contexts other than medical malpractice causation. Certainly, juries are capable of inferring from all the surrounding facts and circumstances that the plaintiff who does not or cannot testify because of death, disability, or inadvertence would not have consented to the operation if informed.
Other courts have held that lack of direct evidence to the effect that plaintiff would have declined the operation does not preclude his recovering for failure to inform under the "patient's perspective" standard:
I agree with these courts that juries are perfectly capable of finding that the evidence does or does not support an inference that the plaintiff would have withheld consent if properly informed. Thus, the "patient's perspective" standard does not operate to unjustly deny the right to recovery on behalf of the dead or incompetent patient.
Defendants also argue that, because the "reasonable person" standard is the majority rule, we, too, should adopt this standard. The "reasonable person" standard originated in Canterbury v. Spence, supra,[6] citing as its sole authority a Northwestern University Law Review article by Professors Waltz and Scheuneman. Waltz and Scheuneman, supra; Canterbury, supra, at 790-91 & nn. 107-110. See Capron, supra, at 419 n. 194. Although, to be sure, the majority of courts that have addressed this issue have adopted the Waltz-Scheuneman/Canterbury "reasonable person" standard, that article, that holding, and that standard have received considerable criticism. See, generally, Capron, supra; Katz, supra; Seidelson, supra; and Comment, Informed Consent, supra.
I agree with the Oklahoma Supreme Court in Scott v. Bradford, supra, at 559:
While my primary emphasis in rejecting the "reasonable person" rule for testing causation has been placed on every person's right of self-determination, there is yet another equally valid reason for so deciding this issue. Traditional tort law, evolving over several centuries through the common law process and statutory enactments, relegates the application of the "reasonable person" standard exclusively to the breach of duty determination. It has no field of operation in measuring the *1163 requisite nexus between the defendant's breach of duty and the cause of the claimant's injuries.
Indeed, this distinction is maintained in Alabama's Medical Malpractice Act. Code 1975, § 6-5-484(a), prescribes the defendant doctor's standard of duty and its breach in terms of an objective standard, measured by the conduct of other reasonable and diligent doctors "in the same general neighborhood, and in the same general line of practice." By its silence, the Act leaves the causation element to existing common law. While the causation rule inherently embraces "reasonableness" as one of the factfinder's considerations in testing witness credibility, it acknowledges no reference to the "reasonable person" standard. Thus, in the instant circumstances, I find no compelling basis for radically altering the time-honored tort concept of causation.[7]
Yielding to this Court's holding with respect to the causation issue, I agree that we should adopt the totality of the trial judge's comments on its application as a model jury instruction. Indeed, his factual conclusion that Plaintiff's testimony was self-serving and hindsight is an essential premise for the balance of his charge. But this only exacerbates the problem. It is beyond debate that the trial judge's "hindsight and self-serving" instruction is violative of the rule that sharply divides the trial court's legal prerogative and the jury's factfinding prerogative. While, in judging witness credibility, the jury is free to take into account, as it deems appropriate, the plaintiff's self-interest or bias (together with all other probative circumstances), if it so finds, it is entirely inappropriate for such a finding to be made for the jury by the court.
This analysis, then, focuses on another essential difference between the two causation standards. Under the "reasonable person" test, the jury is instructed, as a matter of law, on the lack of credibility of the patient's testimony that, if informed of the risks, he would have rejected the treatment. Under the "patient's perspective" standard, witness credibility is left to the exclusive province of the jury, where, as a factual issue, it traditionally and rightfully belongs.
Before concluding, I would make one further comment addressed to the majority opinion. I quote directly therefrom:
On its face, it would seem that this expression of the applicable causation standard, though perhaps the essential concept is somewhat differently articulated, closes the gap between the majority and my dissenting views on this dispositive issue.
To be sure, if the jury's determination is to be guided by what the reasonable person, "with all of the characteristics of the plaintiff, including his idiosyncrasies and religious beliefs," would have decided "under the same circumstances," if informed of the risk, does not this eliminate the substantive quarrel between us? Is it not the primary thrust of my dissent that it is this patient's individual choice, founded on his own peculiarities, on which the jury must ground its findings? If the majority is willing to include these factors regarding the patient's individual right of choice into the "objective" reasonable person standard, and if my view would permit evidence of what the reasonable person, under these circumstances would do, as going to the issue of witness credibility, have we not arrived at the same conclusion, though by different conceptual routes?
*1164 Not only am I willing to accept an affirmative reply to each of these questions, but I would abandon my approach and adopt the rationale of the majority, except for the final order of the majority opinion affirming the trial court's judgment. That is to say, the trial court's jury instruction did not build into its "reasonable person" standard "all of the characteristics of the plaintiff"the standard adopted by the majority. Not even the Appellees contend that the trial judge's reference to "in the position of Duncan Fain" was intended as anything more than a shorthand version of the trial court's earlier reference to "under all the circumstances of this case."
It seems perfectly clear, and Appellees do not contend otherwise, that the jury was instructed that, while it could take into account Plaintiff's testimony, it was to determine what a reasonable person, in like circumstances, would have decided if sufficiently informed of the attendant risk. This instruction, it seems to me, falls materially short of the standard articulated by the majority opinion, prescribing "what a reasonable person with all of the characteristics of the plaintiff, including his idiosyncrasies and religious beliefs, would have done under the same circumstances."
In conclusion, I quote Professor Katz ("Informed ConsentA Fairy Tale? Law's Vision," supra.):
For the reasons stated, I would reverse the judgment and remand the cause for a new trial.
ADAMS, Justice (dissenting).
I respectfully dissent. I have no quarrel with the standard enunciated by the majority, but we should call it what it isthe patient perspective or subjective standard, not the reasonable person objective standard. When we build into the standard, as we have done here, "all of the characteristics of the plaintiff, including his idiosyncrasies and religious beliefs," we no longer have the reasonable person standard. Viewing the trial judge's charge as a whole, we are compelled to conclude that he did not charge in this vein, otherwise he would not have told the jury to view plaintiff's testimony as self-serving and hindsight. Therefore, since the standard used by the trial judge is different from the standard we adopt here, the judgment below should be reversed and the cause remanded for a retrial under the proper standard.
After oral argument I was convinced that the patient perspective or subjective standard was unfair to the medical profession and, indeed, unworkable in a court of law, taking into consideration the unique position of the plaintiff. However, given the considerations underlying the doctrine of informed consent, no other standard makes sense. The plaintiff's testimony, however, should not be conclusive and should be tested by testimony offered by the doctor as to what a reasonable patient under the same or similar circumstances would have done.
[1] Because the acceptance by Appellees/Defendants of the "Statement of the Issue Presented" by Appellants/Plaintiffs could be construed as conceding breach of their respective duties to obtain Plaintiffs' informed consent, a note of explanation may be helpful. To be sure, each of the defendants vigorously contradicts Plaintiffs' claim that they did not inform Mr. Fain of the risks of the arteriogram. This factual issue was properly submitted to the jury. The trial court correctly instructed the jury that, if it found the breach of duty issue favorably to Plaintiffs, then it should consider the element of causation. No request for special findings were submitted, and the jury returned a general verdict for Defendants.
Therefore, the propriety of the trial court's causation instruction (i.e., the "reasonable person" standard) must be tested in the context of a factual finding adverse to Defendants on the breach of duty issue. Stated differently, this Court's analysis proceeds on the assumption that Defendants failed to inform Plaintiffs of the risks attendant to the performance of a pulmonary arteriogram.
[2] Although other cases and legal scholars dealing with this problem denominate these opposing standards as "objective" and "subjective," I find these terms more confusing than helpful. Indeed, to refer to the "patient's perspective" standard as "subjective" is, of itself, an editorial comment disfavoring its application. In the same vein, reference to the "reasonable person" standard as "objective" carries its own inference of acceptance. In fact, when testing causation, as opposed to breach of dutythe context within which tort law traditionally employs the "reasonable person" rulehardly anything could be more subjective than determining what a reasonably prudent person, similarly situated, would have done. Moreover, the objectivity of the "reasonable person" standard applicable to a breach-of-duty determination loses its character when transposed to the subsequent causation determination and has the practical effect of inviting the jury to re-examine its breach-of-duty finding.
[3] See, e.g., Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, opinion denying rehearing, 187 Kan. 186, 354 P.2d 670 (1960), an informed consent case in which Judge Cardozo's statement is echoed:
"Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment." 186 Kan. at 406-07, 350 P.2d at 1104.
[4] See F. Rozovsky, Consent to Treatment: A Practical Guide 64 (1984): "[E]ven in those states that follow the reasonable patient standard, evidence of what the individual patient would have done had he or she known the undisclosed facts may be important."
[5] Two commentators have interpreted the Aiken v. Clary decision as adopting a "reasonable person" standard. Waltz and Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 647 n. 74 (1970). They apparently based their conclusion on the Aiken court's statement that "if the evidence was that the plaintiff was about to die and chances for survival were one out of ten, a jury might well conclude that a more complete disclosure of the hazards involved in an operation would have made no difference to plaintiff in deciding whether to consent to an operation which, if successful, would make his survival reasonably likely." Aiken, supra, at 676.
Others, however, have disagreed with this interpretation. See Capron, supra, at 419-20 n. 194 ("The Aiken court said nothing ... to indicate that in the ordinary case the jury ought not look to the plaintiff's own decisionmaking in assessing causation").
[6] See Comment, Informed Consent, supra, at 925: "Never before Canterbury had it been suggested that the patient can only refuse treatment if the reasonable, prudent man would have done likewise."
[7] To be sure, this does not mean, as the majority assumes, that a defendant is barred from showing what a reasonable person would or would not do under similar circumstances, so long as such evidence bears solely on the issue of witness credibility and not on the ultimate issue of what someone other than the patient would have done. It is the rejection of the patient's exclusive right to decide that constitutes our essential difference. | September 6, 1985 |
ad187e24-0753-490d-805b-1eaab7c66d6d | Elder v. EI DuPont De Nemours & Co. | 479 So. 2d 1243 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1243 (1985)
George Eugene ELDER
v.
E.I. DuPONT DE NEMOURS AND COMPANY, INC.
84-287.
Supreme Court of Alabama.
November 1, 1985.
Rehearing Denied December 6, 1985.
*1245 James E. Atchison and Richard M. Crump of Hess, Atchison & Horne, Mobile, for appellant.
James P. Green of Brown, Hudgens, Richardson, Mobile, for appellee.
HOUSTON, Justice.
This case arises from an on-the-job injury that plaintiff George Eugene Elder sustained while working at International Paper Company's Mobile plant. Elder sued E.I. DuPont De Nemours and Company (DuPont) for breach of contract and negligent failure to provide a safe working environment.
The facts are as follows:
In the early part of 1981, DuPont entered into a painting service contract with International Paper. Under the terms of the contract, DuPont was to perform maintenance paint service at International Paper's Mobile plant for a specified dollar amount. The general conditions for the painting service contract were incorporated into the main contract and included the following provisions:
Under the terms of this painting service contract with International Paper, DuPont subcontracted with Coating Services, Inc. (Coating), for performance of the actual painting work at the plant. The subcontract contained the following provision:
Coating began work on the job of paint maintenance at the plant. One of its employees at that time was the plaintiff, George Eugene Elder. On September 16, 1981, Elder, who had been promoted to the position of sandblaster less than a month before, was assigned the task of sandblasting a long cylindrical tank to prepare it for painting. After blasting all of the tank he could reach from the ground, he blasted all he could reach from the top of the tank. A one foot wide strip down the length of the tank remained.
Because rain was threatening, Elder was ordered by his supervisor to finish the unblasted strip as quickly as possible. The supervisor told Elder to find a ladder so that he could reach the unfinished strip. A manlift was available as an alternative to the ladder for completion of the job, but the supervisor decided there was not enough time to get to the manlift before the rain would begin.
Elder set the ladder up himself. He chose where to put the ladder and how to lean it against the tank. Although he found that the ground where he set the ladder was not level and that there were rocks by the adjacent railroad tracks, he proceeded to climb the ladder and began the sandblasting anyway.
Elder used a safety belt to tie himself onto the ladder. The ladder, the safety belt, and the sandblasting equipment were owned by Coating. No representatives of DuPont were present.
A sandblaster blows out a large amount of pressure, and Elder always had to lean hard into the sprayer to offset that pressure. A sandblaster can also produce sudden surges of pressure, and Elder had experienced this phenomenon before. When Elder had almost completed the sandblasting of the remaining strip on the tank, the pressure in the sandblasting hose increased suddenly and drastically. This sudden surge in pressure kicked Elder and the ladder backwards, and he plunged down hard upon the metal railroad tracks. His lower back was badly injured. He was taken to Providence Hospital, where he was admitted for care. Coating did not have workmen's compensation insurance. Elder's hospital expenses were not paid, and Elder received no workmen's compensation benefits.
Elder sued DuPont on its contract with International Paper. He claimed he was a third-party beneficiary of a promise by DuPont to require or insure that Coating had workmen's compensation insurance. He also sued DuPont for negligent failure to provide a safe working environment.
At trial, when Elder closed his case, the trial court directed a verdict in favor of DuPont on the breach of contract claims. At the close of all the evidence, Elder moved for a directed verdict as to DuPont's affirmative defenses of contributory negligence and assumption of risk. The trial court overruled that motion. The jury then returned a verdict in favor of DuPont. Elder moved at that time for judgment notwithstanding the verdict (JNOV) or for *1247 a new trial. The trial court overruled that motion, and Elder appeals. We affirm.
Elder alleged in the first three counts of his complaint that DuPont was under a contractual duty to ensure that its subcontractor, Coating, had workmen's compensation insurance, and that DuPont breached that duty. Elder alleges that Section 14 of the contract between DuPont and International Paper, supra, established this duty.
When the contract between DuPont and International Paper came into evidence at trial, Elder attempted to introduce further evidence as to the contract's meaning. However, the trial court ruled that Section 14 of the contract was unambiguous and stopped any further presention of evidence as to its meaning. This action was proper. Under Alabama law, it is the duty of the trial court to determine whether a contract is ambiguous, and only if the contract is ambiguous will it be sent to a jury for interpretation. Alpine Construction Co. v. Water Works Board of the City of Birmingham, 377 So. 2d 954 (Ala.1979).
The trial court determined, as a matter of law, that the contract did not create a duty on the part of DuPont to ensure that its subcontractor had insurance. The trial court ruled that the contract provided DuPont need furnish evidence of such insurance only if the owner of the premises, International Paper, were to make that request. It was the task of Elder to introduce evidence that International Paper made such a request. Yet Elder presented no such evidence, and the trial court directed a verdict in favor of DuPont as to the breach of contract claims.
In order to survive a motion for directed verdict, a contestant must present a scintilla of evidence in support of his claim. Ralls v. First Federal Savings and Loan Association of Andalusia, 422 So. 2d 764 (Ala.1982). Once the trial court determined that the contract required DuPont to furnish evidence of insurance only if the owner were to so request, then proof of breach of contract became dependent upon evidence that International Paper made that request. There is not a scintilla of evidence in the record to indicate that such action was taken by International Paper. Therefore, the trial court did not err when it directed a verdict as to Elder's breach of contract claims.
Elder objected to the following jury charge given by the trial court:
Elder alleges that this charge misstates the law of negligence per se. He argues that the only element necessary for negligence per se is the violation of a statute or regulation.
In Fox v. Bartholf, 374 So. 2d 294 (Ala. 1979), this Court set out the requirements for negligence per se:
374 So. 2d at 295-96.
The trial court must have determined that the first two elements of negligence per se were met. The other two elements required by the Fox case, supra, involve jury questions.
The trial court did not err by instructing the jury that negligence per se does not arise by the mere violation of a statute or regulation. The element of proximate cause is also required. Elder ignores this element when he asks this Court to invalidate the trial court's jury charge. Therefore, we find no error in the trial court's statement of the law of negligence per se.
The trial court charged the jury as to the duty owed by DuPont to Elder as follows:
Elder objected to this charge. He argues that a general contractor has the duty of providing the employees of its subcontractors with a safe place to work and that this duty is nondelegable. He relies upon Pate v. United States Steel Corp., 393 So. 2d 992 (Ala.1981), for this proposition.
But Pate holds that the test for determining whether an owner of work premises will be held liable for negligence of its independent contractor is whether the owner reserved the right of control over its contractor's work. Although the holding in Pate concerned a relationship between an owner and an independent contractor, its logic has been extended to situations where, as in the present case, an owner, an independent contractor, and an independent subcontractor are involved. In Knight v. Burns, Kirkley & Williams Construction Co., 331 So. 2d 651 (Ala. 1976), this Court held that, as a general rule, a prime contractor is not liable for the acts of an independent subcontractor whom he has employed. So, just as an owner has no liability to an independent contractor for injuries occurring as a result of conditions arising during and in the course of work to be performed, a general contractor has no liability to an independent subcontractor's employee who suffers an injury where the general contractor did not retain possession or control of the premises. The jury charge given, so far as it goes, is correct. It was perfected, however, by another charge given by the trial court with regard to use of equipment on the job:
By charging the jury in this manner, the trial court rightly placed the issue of control into the hands of the jury. If the jury had found that DuPont had exercised this kind of control over the premises, then the *1249 jury was free to find DuPont liable for negligence.
Elder cites Boroughs v. Joiner, 337 So. 2d 340 (Ala.1976), in support of his assertion that DuPont's alleged duty to him was nondelegable. Again, the Knight case, supra, provides the key to resolution of Elder's argument. In Knight, this Court recognized two exceptions to the aforementioned general rule regarding contractor liability for its subcontractor's negligence:
331 So. 2d at 655.
The Boroughs case, supra, cited by Elder was decided upon the basis of the first exception to the general rule. However, there is no hint in the record that Elder and Coating were involved in an "intrinsically dangerous" or abnormally dangerous activity. Moreover, the second exception does not apply either since there was no provision in the contract between DuPont and Coating, nor any mandate found in general law, making DuPont's duties nondelegable. Absent circumstances falling within the two exceptions, the general rule applies. Therefore, the trial court did not err in charging the jury that the extent of DuPont's duty to Elder was fixed when Coating came on the worksite and took control of the premises.
Elder argues that the trial judge erred when he denied Elder the use of expert testimony on the issue of alleged OSHA violations committed by DuPont.
This Court has held that expert testimony is not to be admitted unless it is clear that jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from facts proved. Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala. 1983). Whether a particular witness will be allowed to testify as an expert is in the sound discretion of the trial court, whose decision will not be disturbed on appeal except for palpable abuse. Burroughs Corp. v. Hall Affiliates, Inc., 423 So. 2d 1348 (Ala.1982).
In the Knight case, supra, this Court held that, under proper circumstances, OSHA provisions and regulations may be admissible for a jury to consider in determining the standard of care that a defendant should have followed. That holding implies that it is the duty of a jury to measure a defendant's conduct against the OSHA guidelines. Since the standard of care is to be determined by a jury in light of those guidelines, we cannot say the trial court's failure to permit expert interpretation of the effect of the OSHA provisions and regulations was a palpable abuse of discretion.
At trial, DuPont asserted the affirmative defenses of contributory negligence and assumption of risk. Elder contends the trial court erred when it overruled his motion for directed verdict as to those defenses. However, a directed verdict is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people would differ. Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984). There is more than a scintilla of evidence in the record to support DuPont's affirmative defenses.
The elements of contributory negligence in the context of this kind of action are the following:
Southern Minerals Co. v. Barrett, 281 Ala. 76, 84, 199 So. 2d 87, 94 (1967).
The defense of assumption of risk requires proof of two elements: (1) knowledge and appreciation of the risk, and (2) voluntary exposure to the risk. Employers Casualty Co. v. Hagendorfer, 393 So. 2d 999, 1001 (Ala.1981).
Evidence justifying either or both of these defenses was introduced at trial. It is undisputed that Elder had almost no training in sandblasting. Yet he set up the ladder, and chose where to put it and how to lean it against the tank in order to sandblast the unfinished strip. Despite the fact that he had always experienced difficulty in balancing himself when sandblasting and had to lean into the sprayer to compensate for the pressure exerted by the machine, he elected to climb a ladder to finish the task. Also, the ground on which the ladder was placed was rocky and uneven. Furthermore, he had experienced sudden surges of pressure from the sandblaster on previous occasions.
In light of this evidence, we cannot say the trial court erred when it overruled Elder's motion for directed verdict.
Elder argues that the trial court erred when it failed to grant his motions for judgment notwithstanding the verdict and for new trial. In reviewing a denial of a motion for judgment notwithstanding the verdict, this Court has held that the evidence must be examined in the light most favorable to the nonmoving party. Carnival Cruise Lines, Inc. v. Snoddy, 457 So. 2d 379 (Ala.1984). Also, a strong presumption favors a jury's verdict and a trial court's refusal to grant a new trial. Matthews Brothers Construction Co. v. Lopez, 434 So. 2d 1369 (Ala.1983).
There is sufficient evidence in the record to support the jury verdict in favor of DuPont, and we find no error in the trial court's exercise of discretion in denying Elder's motion for new trial.
No reversible error having been called to our attention, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur. | November 1, 1985 |
3a081755-6b4e-4c62-abfb-45893b6bc048 | Smith v. Smith | 482 So. 2d 1172 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 1172 (1985)
Robert SMITH, et al.
v.
Lloyd L. SMITH, et al.
84-198.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied January 17, 1986.
*1173 Walter W. Kennedy III of Nash, Walker & Kennedy, Oneonta, for appellants.
John J. Dobson, Oneonta, for appellees.
ADAMS, Justice.
This appeal follows a decree of the Circuit Court of Blount County, entered in a nonjury case. The court fixed a disputed boundary line between the plaintiffs-appellants, Robert E. Smith and his wife Betty, and the defendants-appellees, Lloyd L. Smith, Darlene Smith, Troy P. Smith, and S.A. Smith, Jr. In addition, the court decreed that a road traversing the appellants' land was a public road and enjoined all parties from obstructing vehicular traffic thereon. All costs were taxed to the appellants.
Appellants contend that there was insufficient evidence to support the trial court's finding that the disputed road was public and that the court erred by taxing all costs to them. We disagree and affirm the judgment of the trial court.
Robert E. Smith, Lloyd L. Smith, Troy P. Smith and S.A. Smith, Jr., are brothers, as well as adjoining land owners. Each brother took title to his land from their father, S.A. Smith, Sr. The forty-acre parcel owned by appellants is bounded on three sides by forty-acre parcels owned by the appellees. There has existed a long-time dispute between the appellants and appellees as to the boundary lines between their respective parcels, as well as to the use of a dirt road across appellants' parcel. This dirt road is connected to a public road on Troy Smith's land, crosses Robert Smith's land, and finally terminates on Lloyd Smith's land. (See plat appended to this opinion.)
Appellants sought a court ordered survey to determine the disputed boundary line; a declaration that the disputed road was private; and an injunction to keep appellees from using the roadway. The appellees contended that the road was public and counterclaimed, requesting, among other relief, an injunction to prevent interference with their use of the road by appellants.
The trial court, after hearing substantial evidence and inspecting the property and roadway in dispute, entered its decree, supported by the following factual finding:
Alabama recognizes:
Ayers v. Stidham, 260 Ala. 390, 392, 71 So. 2d 95, 97 (1954).
The court's findings in the present case were based upon testimony taken ore tenus as well as observation of the disputed property.
Menefee v. Lowery, 375 So. 2d 793, 795 (Ala. 1979). Moreover, when the court inspects the premises involved in a dispute prior to making its findings of fact, this buttresses the presumption of correctness given to the court's findings. Fowler v. Fayco, Inc., 290 Ala. 237, 275 So. 2d 665 (1973); Thurman v. Thurman, 454 So. 2d 995 (Ala.Civ. App.1984). Although conflicting evidence was presented at trial, after a thorough examination of the record we cannot say that the court's finding is without support or that the decree is plainly and palpably erroneous.
The appellant, Robert E. Smith, testified that he purchased his parcel from his father in 1962 and that the road had been in existence for at least 36 years. Myrtle Head stated that she had lived in the area for 50 years and that the road was in place as far back as she could remember.
S.A. Smith, Sr., testified that he personally knew of the road's existence in the early 1930's and that he had heard in the community that the road had been used prior to that time. He described the road as a "family community road" which "everybody used" and that such use was without his permission.
The gist of the remaining evidence is that the road for many years connected the paved public road to two houses no longer in existence. However, the road has been used by many persons, including prior owners and residents of the dwellings, as well as their tenants, friends, families, and persons doing business with them. Various crops have been grown on the land, and the road has provided access to and from the areas where they were grown. Cattle buyers and timber crews utilized the road to transport timber and cattle raised on the land. Hunters and fishermen also used the road, as did utility company personnel. The parties, their family, friends, tenants, and business invitees also used the road. Additionally, Blount County employees and others worked and maintained the road periodically. The deed from S.A. Smith, Sr., to the appellants expressly reserved the use of "public roads" located on the appellants' parcel over which the disputed road crosses. This evidence was sufficient to support the court's finding.
Appellants argue that: (1) the evidence does not demonstrate public use because the road only provides infrequent access to the property by family members, tenants, guests, and business invitees; and (2) evidence of the existence of a gate or gap across the road prevents a finding of an open way used freely for the 20-year prescriptive period. Prior holdings of this Court do not support appellants' position.
In Still v. Lovelady, 218 Ala. 19, 20, 117 So. 481, 482 (1928), the Court opined:
See also Davis v. Linden, supra. In addition, the Court in Ayers v. Stidham, supra, found that a disputed road, "although in a bad state of repair and infrequently used, was a public road." 260 Ala. at 392, 71 So. 2d at 97. We find that the evidence presented is sufficient to support the trial court's finding of public use.
Although the evidence is to the effect that for several years prior to this litigation there existed an unlocked gate and gap across the disputed road, we find, as did the Court in Powell v. Hopkins, 288 Ala. 466, 472, 262 So. 2d 289, 294 (1972), that:
Moreover, it is well settled that nonuser for less than the prescription period will not cause a public road to revert to status. Davis v. Linden, supra; Harbison v. Campbell, 178 Ala. 243, 59 So. 207 (1912). In the present case, the record supports the finding that the disputed road took on a public nature prior to the erection of any barrier, and, even if the barrier had succeeded in impeding access to the road, there is no evidence that such impediment was in place for the prescriptive period. Based upon the evidence presented, we cannot hold that the trial court's findings were in error.
Likewise, considering the nature of this proceeding, we do not find that the court erred by taxing all costs (primarily survey costs) to the appellants. The taxation of costs pursuant to A.R.Civ.P. 54(d) is generally left to the sound discretion of the trial judge. City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala.1981); Ex parte Osborn, 375 So. 2d 467 (Ala.1979); Bukley v. Carroll, 366 So. 2d 1094 (Ala. 1978); Cash v. Mayo, 429 So. 2d 1092 (Ala. Civ.App.1983). We cannot say that the taxation of costs here was unjust or unfair and, therefore, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | August 30, 1985 |
e2c063d0-7a16-4bae-8d94-4a842a70f98b | Powell v. Mullins | 479 So. 2d 1119 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1119 (1985)
Christine POWELL
v.
Julius MULLINS, M.D.
84-173.
Supreme Court of Alabama.
August 23, 1985.
Rehearing Denied November 1, 1985.
M.A. Marsal of Seale, Marsal & Seale and Irvin J. Langford of Howell, Johnston & Langford, Mobile, for appellant.
W. Boyd Reeves and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
BEATTY, Justice.
This is an appeal by the plaintiff, Christine Powell, from a judgment in favor of the defendant, Julius Mullins, M.D., based upon a directed verdict entered at the close *1120 of the plaintiff's evidence in a medical malpractice case. It is undisputed that the defendant left an 18-inch-square surgical lap sponge inside the plaintiff when closing the abdominal incision necessary for the cesarean delivery of the plaintiff's third child. The trial court, believing the case to be controlled by Gilbert v. Campbell, 440 So. 2d 1048 (Ala.1983), granted the defendant's motion for directed verdict because the plaintiff failed to "put on medical testimony to say that the standard of care accepted in that particular field was not followed." We reverse and remand.
The relevant facts of the case are as follows:
The plaintiff entered the University of South Alabama Medical Center for delivery of her third child. Plaintiff had received her pre-natal care through the Medical Center and, initially, her doctors there felt she would be able to deliver her baby vaginally. However, because plaintiff is a diabetic on insulin, the baby (weighing 9½ lbs.) had grown too large to deliver vaginally, and the decision was made to deliver the baby by cesarean section. The defendant, Dr. Mullins, was the chief resident in obstetrics at the Medical Center and the attending physician in charge of performing the cesarean section on the plaintiff. Dr. Mullins was assisted by two other doctors. Also present in the operating room were several people from the anesthesiology department, several nurses, a respiratory therapist, and a pediatrician. Plaintiff was given a general anesthetic despite the fact that her obesity and heavy smoking posed a greater risk in using general anesthesia. These factors, as well as plaintiff's low blood count and profuse bleeding during surgery, established her to be a high-risk patient overall.
While performing the cesarean surgical procedure, which lasted over two hours, the defendant used two rolled up 18-inchsquare lap sponges, placing them inside plaintiff's abdomen on either side of the uterus. Twenty-eight other sponges were used during the procedure to soak up blood, but only the two 18-inch-square lap sponges were actually placed inside the plaintiff's abdomen. Despite the defendant's own search of the operative field in preparing to close the incision, as well as two reports given by a nurse that the sponge count was correct, one of the 18inch-square lap sponges was left inside the plaintiff.
Approximately four days after her surgery, the plaintiff began to complain of pain and swelling on one side. X-rays were taken, revealing the presence of the sponge in plaintiff's abdomen. Five days after the cesarean section, plaintiff underwent a second surgical procedure to remove that sponge.
The only issue presented by this case is whether, on these facts, in order to defeat a motion for directed verdict, plaintiff was required by law to put on expert medical testimony to establish that the defendant's treatment fell below the professional standard of care. We hold that she was not required to do so under these facts.
The general rule in Alabama is that in medical malpractice cases expert medical testimony is required to establish what is and what is not proper medical treatment and procedure. An exception to this general rule exists where an understanding of the doctor's alleged lack of due care or skill requires only common knowledge or experience. This rule and the exception were explained by this Court in Parrish v. Spink, 284 Ala. 263, 266-267, 224 So. 2d 621, 623-624 (1969):
This general rule, as well as the exceptions thereto, were reiterated by this Court in the recent case of Holt v. Godsil, 447 So. 2d 191, 192-193 (Ala.1984):
See also Tant v. Women's Clinic, 382 So. 2d 1120, 1121 (Ala.1980), where this Court stated:
Thus, this case falls squarely under the exception applied in Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), where the defendant doctor performed an appendectomy on the plaintiff, leaving a needle or part of a needle inside the plaintiff. The defendant, however, argues to this Court (and persuaded the trial court) that the present case is controlled by Gilbert v. Campbell, 440 So. 2d 1048 (Ala.1983), in which this Court stated:
As defendant admits in his brief, Gilbert is "a case which appears on first blush to fall within the exceptional rule, obviating the need for expert testimony, [but] is actually one involving complex medical circumstances beyond the comprehension of a layman." However, it is precisely this factor that distinguishes Gilbert from the present case and which indicates that the holding in Gilbert is in no way contrary to the exception applied in Sellers v. Noah, supra, and stated in Parrish v. Spink and Holt v. Godsil, supra.[1]
The defendant doctor in Gilbert had performed surgery on the plaintiff to remove a tumor in the colon. Twice, five months and six months following his surgery, the plaintiff was readmitted to the hospital for treatment of infections in the same area of the abdomen. During both stays, Penrose drains were inserted through his rectum to drain infected material from a pelvic abcess. The first drain came out on its own and the second was pulled out routinely. The plaintiff's infections persisted and, eventually, a fistula, or tunnel between the abcess and the exterior left buttock developed. The following year, the plaintiff was referred to another physician, who closed off the fistula surgically from the inside. While performing this procedure, the physician found and removed a 2-inch-long piece of Penrose drain in the tract of the fistula.
In affirming a verdict directed in favor of the defendant at the close of the defendant's case,[2] this Court held that expert testimony was required "to describe the proper use, purpose, insertion and removal of a Penrose drain." 440 So. 2d at 1049.
Without question, the circumstances in Gilbert, supra, involved complex medical procedures beyond the comprehension of a layman. In that case, the mere presence of the broken piece of drain in the plaintiff's body was not enough to establish a prima facie case of negligence for several reasons. First, the drain did not show up on X-rays, and it could not have been seen by an external examination. Second, due to the nature and severity of the plaintiff's illness, the defendant had no reason to *1123 believe that plaintiff's suffering was caused by something other than his disease. Third, in presenting his case, the defendant put on undisputed expert testimony that not only was there no standard practice or procedure whereby a doctor, after removal, could determine whether the full length of the drain had been removed, but also that the defendant had engaged in no substandard medical practice in the course of his treatment of the plaintiff.
In the present case, the plaintiff's obesity and profuse bleeding probably made locating the sponges more difficult. Also, because the procedure had taken over two hours, and because the plaintiff, a smoker, was a higher risk for general anesthesia, the defendant was understandably anxious to complete the procedure and close the patient. Nevertheless, it is precisely these factors that put the plaintiff in a high-risk category warranting an X-ray immediately following the surgical procedure.
At trial, the defendant testified that the plaintiff was a high-risk patient, but that it was not customary to do a post-operative X-ray unless the patient began having problems:
However, admitted into evidence was an article entitled "Natural History of the Retained Surgical Sponge," written by John W. Hyslop, M.D., and Kimball J. Maull, M.D., which appeared in the June 1982 edition of the Southern Medical Journal, Volume 75, No. 6, at pages 657-680. Counsel for the defendant conceded the article to be a recognized medical text. The article contained the following explanation especially relevant to the facts of this case:
In addition to the portion of the defendant's testimony quoted above, the following excerpts from his testimony indicate that the high-risk factors outlined in the abovequoted article were present in this case:
Under the sub-heading entitled "Prevention," the Southern Medical Journal article provides the following:
In Zills v. Brown, 382 So. 2d 528 (Ala.1980), this Court stated with approval another exception to the general rule requiring expert testimony in a medical malpractice case:
In view of the defendant's own testimony that the plaintiff was a high-risk patient, the article quoted from above, which was admitted into evidence, can be viewed as proof of what is or is not proper practice, treatment, or procedure. While the article does not mandate that X-rays be taken in all cases, it does indicate that the proper practice should be at least to consider taking X-rays of high-risk patients before they leave the operative suite. This the defendant did not do. In fact, he testified, in effect, that X-rays are not considered unless the patient begins to experience problems post-operatively.
Furthermore, the facts of the present case are substantially dissimilar to those in Gilbert. It cannot be said that the "proper, use, purpose, insertion, and removal," Gilbert, supra, of a surgical sponge during a cesarean section is a medical procedure as complex as the use, purpose, insertion, and removal of a Penrose drain in a patient on whom colonic surgery had been performed to remove a tumor and who had subsequently suffered with serious infections related to his diseased colon. Thus, in Gilbert, the mere fact that a small piece of a Penrose drain remained in the patient, after all the drains used were actually removed (and appeared to have been removed in their entirety) did not demonstrate an apparent lack of skill or due care on the part of the defendant which was capable of being understood by a layman. In the factual context of this case, however, the complete failure of the defendant to remove the sponge at all demonstrates a lack of care that is within the comprehension of a layman and requires only common knowledge and experience to understand it. Parrish v. Spinks; Sellers v. Noah, supra. See also Lloyd Noland Foundation, Inc. v. Harris, 295 Ala. 63, 322 So. 2d 709 (1975). Therefore, the plaintiff was not required to put on expert testimony in order to overcome defendant's motion for directed verdict at the close of plaintiff's case.
Despite the defendant's own testimony that his failure to find the sponge during his search of the body cavity was "human error," on appeal the defendant contends that he cannot be liable in negligence to the plaintiff because, he argues, the sponge was left in due to the error of the nurse in charge of the sponge count, on whose "correct" count the defendant claims he reasonably relied. We cannot agree. At trial, the defendant gave the following testimony regarding the sponge count:
Unquestionably, it was the defendant's responsibility to remove all sponges from inside the plaintiff before closing the abdominal incision. This rule is stated generally at 61 Am.Jur.2d, Physicians and Surgeons, etc., § 258, p. 397 (1981):
Under our cases, a failure to remove sponges, needles, etc., which are placed inside the patient during the operation constitutes prima facie evidence of negligence. See Sellers v. Noah and Parish v. Spinks, supra. The responsibility to remove the sponges was that of the doctor and not that of the nurses assisting him. He exercised exclusive control over the sponges from the time he placed them inside the plaintiff until he removed them. The mere fact that the defendant delegated the task of counting the sponges, once he had removed them from the patient, does not, in any way, relieve the defendant of his responsibility to remove them in the first instance. He had the duty and responsibility of removing all the sponges. The nurses' responsibility of counting them afterward amounts to only an added precaution taken by the defendant to help insure that he had properly performed his duty.
The general rule with respect to the "sponge nurse" is stated and explained at 61 Am.Jur.2d at 399:
We adopt the general rule as stated above as well as the reasoning of the Louisiana Court of Appeal, which addressed this same issue in the case of Guilbeau v. St. Paul Fire and Marine Ins. Co., 325 So. 2d 395 (La.Ct.App.1975), a case similar to the present one. In Guilbeau, it was undisputed *1127 that a surgical pad or sponge was left inside the plaintiff's abdomen following a surgical procedure performed by the defendant doctor. Just as in the present case, the defendant received more than one "correct" sponge count before closing the incision. He argued that it was within the standard of care "to rely on the `sponge count' of the nurses and a visual inspection of the area of surgery prior to closure to prevent the error committed in this case." Guilbeau, at 397. The Louisiana Court of Appeal followed the holding of the Louisiana Supreme Court in Grant v. Touro Infirmary, 254 La. 204, 223 So. 2d 148 (1969), and explained that case as follows:
Based on the foregoing, we conclude that this case does "fall within the exception that would allow a jury to exercise its fact-finding prerogative to adjudge liability absent expert testimony." Tant v. Women's Clinic, 382 So. 2d 1120, 1121 (Ala.1980) (exception recognized, but issue not presented). Accordingly, the trial court erred in directing a verdict in favor of the defendant, and, therefore, the judgment is due to be, and it hereby is, reversed and the case remanded for further proceedings.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] It is worth noting that neither Sellers nor Parrish was cited in Gilbert, and the Holt opinion was issued subsequent to Gilbert.
[2] Another distinguishing factor worth noting is that the verdict in the present case was directed at the close of the plaintiff's case. | August 23, 1985 |
7b2c8bea-e786-4d83-886a-ed076922767a | Turner v. Systems Fuel, Inc. | 475 So. 2d 539 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 539 (1985)
Thomas W. TURNER, Jr.
v.
SYSTEMS FUEL, INC.
84-88.
Supreme Court of Alabama.
August 23, 1985.
Marc E. Bradley of Bradley & Montgomery, Fairhope, for appellant.
Edward B. McDonough, Jr. of McDonough & Broome, Mobile, for appellee.
MADDOX, Justice.
This is an appeal from an order granting summary judgment in favor of the plaintiff in a breach of contract case. We reverse.
Plaintiff/appellee Systems Fuel, Inc. entered into a written contract with Thomas W. Turner whereby Systems Fuel was to drill a well, known as the Bertha Donaldson well, in Jefferson Davis County, Mississippi, for the purpose of searching for oil. Under the terms of the contract, Turner, along with several other investors, was to *540 pay a proportionate share of the drilling costs. The contract also provided as follows:
Article VI.E.1, referred to above, provided as follows:
On September 21, 1983, Systems Fuel filed an amended complaint in the Circuit Court of Mobile County, alleging the existence of the contract between it and Turner, that it had "duly performed all the terms and conditions" of the contract, but that Turner had failed to pay his proportionate share of the costs incurred, $12,473.01. Turner answered, and Systems Fuel moved for summary judgment, supported by a copy of the contract and the affidavit of Joseph O. Meade, the manager of drilling and production for Systems Fuel. The affidavit again averred the existence of the contract, that Systems Fuel had "duly performed all the terms and conditions" of that contract, that Turner had failed to pay the $12,473.01 he owed under the contract, and that Turner was liable to Systems Fuel for payment of that amount, plus interest at the agreed upon rate, 10% per annum, and reasonable attorney's fees.
In opposition to Systems Fuel's motion, Turner submitted the following affidavit:
On September 5, 1984, Systems Fuel's motion for summary judgment was granted, the trial court ordering Turner to pay a total judgment, including interest and attorney's fees, of $25,384.94, plus costs. Turner appealed here.
The sole issue before us is whether the trial court erred in granting Systems Fuel's motion for summary judgment. This Court finds that it did.
As this Court has often stated, summary judgment should be granted only when, after viewing the evidence in a light most favorable to the non-moving party, it appears that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, A.R.Civ.P.; Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So. 2d 112 (Ala.1983). If there is a scintilla of evidence supporting the position of the non-movant, summary judgment cannot be granted. Hale v. City of Tuscaloosa, 449 So. 2d 1243 (Ala.1984); Murphree v. Alabama Farm Bureau Insurance Co., 449 So. 2d 1218 (Ala.1984).
Once a motion for summary judgment is made and supported, as required by Rule 56(e), Ala.R.Civ.P., the motion is to be granted unless the non-movant makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact present. Butler v. Michigan Mutual Insurance Co., 402 So. 2d 949 (Ala.1981). The non-movant cannot make such a showing by resting on his pleadings but, generally, must present a genuine issue of fact by way of opposing affidavit. Id. at 952; Eason v. Middleton, 398 So. 2d 245 (Ala. 1981).
An opposing affidavit must be made on personal knowledge, must set forth facts to show the admissibility of the evidence, and must contradict the evidence presented by the movant showing that no issue of material fact exists. Butler, supra, at 952. If the evidence contained in the opposing affidavit does not contradict that presented by the movant, the trial court has no alternative but to consider the movant's evidence as uncontroverted and enter summary judgment in the movant's favor. Id. at 953.
In determining whether summary judgment was properly granted, the trial court must view the motion in a light most favorable to the non-movant. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). In reviewing the propriety of a summary judgment, this Court is limited *542 to reviewing the same factors, the same evidence, considered by the trial court when it granted the motion. Prudential Insurance Co. v. Coleman, 428 So. 2d 593 (Ala.1983). After looking at the evidence before the trial court when it granted the present motion, Systems Fuel's motion itself, the affidavit of Mr. Meade, and Turner's response and opposing affidavit, this Court finds that summary judgment was improperly granted.
The contract provided that "the consent of all parties" should be obtained before plugging and abandoning the well, and it also provided that the duty to secure the parties' consent was controlled by Article VI E.1 of the contract. This article specifically provided that if a diligent effort to contact any party was unsuccessful, the well could be plugged and abandoned without that party's consent. Meade stated, under oath, that Systems Fuel had "duly performed" all the terms and conditions of the contract, and had made a diligent, but unsuccessful, effort to contact Turner. These assertions are conclusionary in nature, and were contradicted in this case. See, also, Belknap v. Texas Employers' Insurance Association, 556 S.W.2d 587, 588 (Tex.Civ.App.1977), for a statement that conclusions, unsupported by facts, do not meet the requirements of the summary judgment rule.
Turner's answer and opposing affidavit were, therefore, sufficient to present at least a scintilla of evidence on the question of Systems Fuel's performance and whether it was, in fact, "diligent" in getting notice to Turner and whether Turner had, in fact, breached the contract.
We hold, therefore, that Systems Fuel failed to sustain its burden of showing that there was no genuine issue as to any material fact in the case. The judgment of the trial court, therefore, is due to be reversed and the cause remanded for a trial.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | August 23, 1985 |
36ba11fd-e299-4785-88af-7b08184fe0cf | Reese v. Smoker | 475 So. 2d 506 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 506 (1985)
Charles T. REESE
v.
Carolyn A. SMOKER, et al.
83-417.
Supreme Court of Alabama.
August 23, 1985.
*507 Charles N. Reese of Reese & Reese, Daleville, for appellant.
James W. Kelly of Kelly and Knowles, Geneva, for appellees.
PER CURIAM.
This is an appeal from a judgment upholding a certain conveyance of real estate by appellee Carolyn A. Smoker to her son, Gregory A. Smoker, and his wife, Carolyn S. Smoker. Appellant Charles T. Reese, a judgment creditor of Carolyn A. Smoker, seeks to set aside the conveyance as fraudulent. For the reasons set out herein, we affirm.
Prior to December 9, 1981, appellee Carolyn A. Smoker had been experiencing various financial difficulties. On February 24, 1981, Charles T. Reese, the appellant here, filed suit against Carolyn A. Smoker for breach of contract; at that time he was a creditor of Carolyn A. Smoker. The case was heard by the trial court on December 9, 1981, and on December 28, 1981, judgment was entered against Carolyn A. Smoker in favor of Charles T. Reese in the sum of $42,680.50. Reese then brought this action against Carolyn A. Smoker and her son and daughter-in-law, Gregory A. Smoker and Carolyn S. Smoker, in order to set aside a conveyance of real estate from Carolyn A. Smoker to Gregory and Carolyn S. Smoker as fraudulent under Code 1975, § 8-9-6.
The evidence shows that Carolyn A. Smoker intended to sell her house in Geneva, Alabama, before a creditor could obtain a judgment against her. Her methods for finding a buyer were not normal market practice, in that even though she engaged a broker, she did not list the house and had no "For Sale" sign placed in the yard. The only offer she received prior to December 8, 1981, was for $47,500.00, from which the broker's six percent commission was to be paid, thus leaving a net sum of $44,650.00 for Mrs. Smoker. On December 8, 1981, Gregory A. Smoker, who lived in Union Springs, Alabama, made a routine phone call to his mother, and during that conversation she told him that she was going to sell the house for $45,000.00. Gregory told his mother that he could pay a thousand dollars or so more than that, and she agreed to sell the house to him. He did not know that she had a suit pending against her, although he did know that she was having financial trouble, and he had given her $500.00 once. The deed from Carolyn A. Smoker to Gregory A. Smoker and Carolyn S. Smoker was dated December 8, 1981, and filed for record on the same day. On December 9, 1981, Gregory delivered to Carolyn A. Smoker cashier's checks totaling $46,300.00 in payment for the house. A title opinion dated December 10, 1981, was delivered to Gregory, and it showed no suit against his mother. It was not until January 1982 that he learned of the suit and judgment against his mother. Carolyn A. Smoker used the money to pay off the three mortgages on the house. Gregory and Carolyn S. Smoker still own the house and have used it as rental property.
This present case was presented to the trial court partly ore tenus, and appellant Charles T. Reese produced as evidence two appraisals of the house in question that placed its 1983 market value at over $72,000.00. The trial court ruled that although the conveyance was from a mother to a son one day before the trial of a case against the mother, "the evidence is insufficient to show a fraudulent scheme on the part of the defendants, Gregory A. Smoker and Carolyn S. Smoker, to defraud creditors." The court also held that the consideration paid by Gregory Smoker was not "greatly disproportionate to its actual value under the circumstances." The court then rendered judgment for the defendants, Carolyn A. Smoker and Gregory and Carolyn S. Smoker.
*508 The issues in this case are: Does the evidence require a finding that defendants Gregory Smoker and Carolyn S. Smoker were guilty of intentional fraud? If not, then was the consideration paid so inadequate as to require a finding of constructive fraud?
The Court recognizes that conveyances of property between family members in the face of a pending suit against the transferor must be carefully scrutinized. As the Court stated in Gurley v. Blue Rents, Inc., 383 So. 2d 531, 535 (Ala.1980):
The same increased scrutiny applies to a transaction between a mother and a son.
It is clear from the evidence that the mother, Carolyn A. Smoker, was intending to hinder her creditors. Her sale of the house contains the three elements of a fraudulent conveyance set out in Roddam v. Martin, 285 Ala. 619, 623, 235 So. 2d 654, 657 (1970): "It must be shown that there is: (1) a creditor to be defrauded, (2) a debtor intending to defraud, and (3) a conveyance of property out of which the creditor could have realized his claim or some portion thereof." However, this is not enough to set aside the conveyance. As this Court said in J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 843 (Ala. 1981):
In this case we are clearly dealing with a grantor who was insolvent, failing, or financially embarrassed at the time of the conveyance and who intended to defraud creditors. The issues in this case deal only with the alleged fraudulent intent of the grantees. The grantees must be guilty of actual fraud or of constructive fraud in order to cause the conveyance to be set aside.
The trial court found that the plaintiff Reese had failed to show fraudulent intent on the part of grantees Gregory and Carolyn S. Smoker. This conclusion is supported by the evidence before the trial court. Where the trial court hears a case presented ore tenus, every presumption must be indulged in favor of its findings, and they will not be disturbed unless palpably wrong. J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981); Ford v. Alabama By-Products Corp., 392 So. 2d 217 (Ala.1980). The trial court's finding of no fraudulent scheme on the part of Gregory and Carolyn S. Smoker is not palpably wrong.
Appellant Reese also contends that appellees Gregory and Carolyn S. Smoker are guilty of constructive fraud which will defeat the conveyance. "The term `constructive fraud' is generally used in referring to those instances where a grantor, indebted at the time, conveys property on a good as distinguished from a valuable consideration." Smith v. Wilder, 270 Ala. 637, 649, 120 So. 2d 871, 882 (1960). Once constructive fraud is alleged in a family transaction, the grantee has the burden of proving the bona fide character of the underlying transaction. Gurley v. Blue Rents, Inc., supra. The burden is upon the grantee to show a consideration both valuable and adequate. Smith v. Wilder, supra, 270 Ala. at 650, 120 So. 2d at 878. Gregory Smoker paid more than the net *509 value of the single offer for the house and paid only about a thousand dollars less than the house had been originally bought for in 1975. Though appellant Reese presented two appraisals showing the house's reasonable market value at over $72,000.00, neither of the two appraisers was from Geneva County and neither had done similar appraisals in that county before. One appraiser testified that an appraisal of reasonable market value does not mean that the property can be sold for that value, and the other appraiser stated that he had been a friend of the appellant for twenty-five years. Based on the conflicting evidence, the trial court's conclusion that Gregory Smoker paid a consideration that was not greatly disproportionate to the house's actual value is not palpably wrong and will not be disturbed. J.C. Jacobs Banking Co. v. Campbell, supra; Ford v. Alabama By-Products Corp., supra.
Appellant Reese contends that the trial court's words "greatly disproportionate" set up a new test for valuing consideration paid. We see the difference between consideration being not "greatly disproportionate to its actual value" and being "both valuable and adequate" as inconsequential. Black's Law Dictionary 638 (rev. 5th ed. 1979), defines "inadequate" as "disproportionate." See, Kerr v. Moore, 6 Cal. App. 305, 92 P. 107 (1907) ("not disproportionate to the value" held to meet the requirement that the adequacy of the consideration must be shown).
Reese also contends that even if appellees Gregory Smoker and Carolyn S. Smoker are not guilty of constructive fraud then the Court should apply the equitable principle that when the consideration paid is found to be substantially inadequate, the conveyance will be allowed to stand only as security for the value actually paid. "Therefore, when the consideration, though valuable, is found to be substantially inadequate, and the grantee is without knowledge of the grantor's intent or of facts putting him on inquiry as to that intent, the conveyance will be allowed to stand only as security for the value actually paid." J.C. Jacobs Banking Co. v. Campbell, supra, at 844; Central Bank of Alabama, N.A. v. Ambrose, 435 So. 2d 1203 (Ala.1983). However, there is no need to apply this principle in this case, for the consideration paid was adequate.
Where the trial court hears a nonjury case presented ore tenus, its findings of fact will not be disturbed unless palpably wrong. The trial court's conclusions that appellees Gregory and Carolyn S. Smoker did not engage in intentional fraud and that the consideration paid was adequate to foreclose a finding of constructive fraud are not palpably wrong. The trial court was clearly aware of the scrutiny needed in a transaction like this one between family members and was in the best position to weigh the value of the consideration paid in light of the circumstances. The judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, SHORES, EMBRY and BEATTY, JJ., concur. | August 23, 1985 |
bcaf8918-e9af-448a-b823-02c05251717e | Arfor-Brynfield, Inc. v. Huntsville Mall Associates | 479 So. 2d 1146 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1146 (1985)
ARFOR-BRYNFIELD, INC., a/k/a Germano's Gallery
v.
HUNTSVILLE MALL ASSOCIATES, a partnership.
84-379.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied November 8, 1985.
L. Tennent Lee III of Cleary, Lee, Morris, Evans & Rowe, Huntsville, for appellant.[1]
Frank K. Noojin, Jr. and Michael I. Spearing of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
SHORES, Justice.
The tenant appeals from the final judgment set out below in an unlawful detainer action brought by the owner:
The dispositive issue on appeal is whether the trial court erred to reversal in disallowing the amendment to the tenant's answer offered for the first time on the day the case was set for trial, some seven months after a pre-trial conference was held and a pre-trial order was entered which stated that the tenant's defense was a general denial and that amendments would be allowed only to meet proof at trial of which the parties were presently unaware. The order setting the pre-trial conference cautioned:
Three and one-half months before the case was set for trial, the owner filed the following motion in limine, specifically objecting to any reference to waiver or estoppel:
The tenant did not seek a modification of the pre-trial order, but waited until the day the case was set for trial to orally move for leave to amend its answer.
The pre-trial procedure established by Rule 16, A.R.Civ.P., is designed to clarify and simplify the issues to be tried. The order resulting is to control the subsequent course of the action. The drafters of the Alabama rule were mindful of the justified criticism that the federal pre-trial procedure had attracted and were committed to avoiding the wasteful and burdensome requirements of the federal pre-trial practice. Thus, the Alabama rule offers a simple procedure for defining and narrowing the issues remaining for trial. The pre-trial order is not written in stone, but it is not without meaning either. See Committee Comment, Rule 16, A.R.Civ.P. Obviously, as it is noted in the comment, pre-trial orders cannot be effective unless the judge has the right to disallow amendments to pleadings filed subsequent to the pre-trial conference, particularly where, as here, the subject matter of the proffered amendment was known to the pleader at the time of the pre-trial conference and was not then offered.
In this case, the owner asserts that the tenant breached the lease in that the tenant failed to operate its business during those hours required by the lease and set out in Section 4.3 of the lease (i.e., from 10:00 a.m. to 9:00 p.m., Monday through Saturday). The tenant conceded, in deposition and by way of answers to interrogatories and finally by confessing judgment, that he does not operate his business in accord with the operating hours required by the lease, but argues that because other tenants in the mall likewise do not comply with the identical provision in their leases, the owner has waived the operating hours requirement or is estopped to enforce it. Assuming, without deciding, that because the owner had not insisted upon strict adherence to the operating provision by other tenants, it had waived or was estopped' to assert the provision against the present tenant, we cannot reverse the trial court for disallowing an amendment to the tenant's general denial offered for the first time when the case was called for trial, particularly in light of its express finding that to do so would prejudice the owner in the presentation of its case. This is not to say that it would have been error to allow the amendment. We simply leave to the discretion of the trial court the matter of amendments to pre-trial orders. As the Court noted in Huskey v. W.B. Goodwyn Co., 295 Ala. 1, 321 So. 2d 645 (1975), Rule 16, A.R.Civ.P., must be read in conjunction with Rules 1 and 15, A.R.Civ.P., and thus liberal allowance of amendments when justice so requires must take precedence over strict adherence to the pre-trial order in Alabama practice.
The trial court was not convinced that justice was served by allowing an amendment on the day of trial to raise matters that had been known by the amending party since the suit was filed and had not theretofore been raised. It also found that the nonmoving party would be prejudiced if the amendment was allowed. This was within the trial court's discretion, and nothing has been presented to refute these conclusions. In Metropolitan Life Ins. Co. v. Sullen, 413 So. 2d 1106 (Ala.1982), the Court affirmed a ruling by the trial court *1150 disallowing an amendment to the defendant's answer offered after entry of a pretrial order. There we said:
413 So. 2d at 1108.
Also similar is Alabama Farm Bureau Mutual Casualty Ins. Co. v. Guthrie, 338 So. 2d 1276 (Ala.1976), where a defendant attempted to amend its pleading to include additional affirmative defenses. Those pleas were stricken by the trial court. On appeal, this Court held:
338 So. 2d at 1278-79. See, also, Vernon Carpet Mills v. Rossville Spinning Corporation, 344 So. 2d 1205 (Ala.1977); Dillon v. Nix, 55 Ala.App. 611, 318 So. 2d 308 (1975).
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, and BEATTY, JJ., concur.
[1] Reporter's note: Mr. Lee's firm provided counsel at the appellate level only. | August 30, 1985 |
bdc76065-0c33-4b8f-9e63-b96d266459f6 | St. Regis Paper Co. v. Kerlin | 476 So. 2d 64 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 64 (1985)
ST. REGIS PAPER COMPANY
v.
Robert KERLIN.
84-14.
Supreme Court of Alabama.
August 30, 1985.
*65 Dewitt Reams and Robert E. Clute, Jr. of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellant.
Herndon Inge, Jr. of Inge, McMillan & Inge, Mobile, for appellee.
FAULKNER, Justice.
This appeal arose out of a trespass and conversion action brought by plaintiff Robert Kerlin against St. Regis Paper Company for the wrongful cutting of timber on plaintiff's property.
This action arose out of a previous action to quiet title on a five-acre tract of property. Kerlin, a Pennsylvania resident, is the record title holder of the five acres of land. Title to the land has been in Kerlin's family since 1918, and he and his successors have paid taxes on the property since that time. The five-acre tract is surrounded by property owned by Tensaw Land and Timber Company since 1951. In 1956 Tensaw leased its holding to St. Regis Paper Company. St. Regis planted trees over the entire property, including the Kerlin lot, as part of a tree farming operation.
Tensaw brought an action against Kerlin to quiet title on the five-acre tract, claiming ownership by adverse possession. On May 9, 1979, the trial court found in favor of Tensaw and concluded that it had acquired title to the land by adverse possession.
Kerlin appealed to this Court. During the pendency of the appeal, St. Regis cut down all of the trees on the property, includikng the trees on the five-acre tract. St. Regis claimed that damage due to Hurricane Frederic necessitated the immediate cutting and removal of the trees.
On September 26, 1980, this Court found that Tensaw had not proved its claim of adverse possession and therefore reversed the trial court's decree and remanded the case. The trial court thereafter granted summary judgment in favor of Kerlin, which we affirmed on appeal.
Subsequently, Kerlin instituted the instant action against both Tensaw and St. Regis for trespass, conversion, and willful and wanton trespass.[1] St. Regis filed a counterclaim, claiming title to the five-acre tract by a prescriptive easement.
*66 At the close of plaintiff's case the court granted a directed verdict in favor of Tensaw. St. Regis's motion for directed verdict was denied and the case proceeded to the jury, which returned a verdict in favor of Kerlin for $20,000.00. The jury's verdict in favor of Kerlin necessarily included a finding of punitive damages for wilful trespass, as the actual damages proven were between $2,500.00 and $7,500.00.
St. Regis appeals. The controlling issue is whether a directed verdict should have been granted in favor of St. Regis because of Kerlin's failure to post a supersedeas bond in his previous appeal.
The common law rule, that an appeal automatically superseded the judgment, in and of itself, has been changed to the extent that an appeal does not ordinarily supersede the judgment in the absence of a supersedeas bond. Moore v. LeFlore, 288 Ala. 315, 260 So. 2d 585 (1972). Under Rule 62, A.R.Civ.P., and Rule 8(c), A.R. A.P., a supersedeas bond must be posted in order to stay the execution of a judgment.
In the original action, Kerlin did not post a supersedeas bond, and, therefore, the execution of the judgment quieting title in favor of Tensaw was not suspended pending appeal. A judgment rendered by a court having jurisdiction protects the parties acting under it before a reversal or stay and constitutes a sufficient justification for all acts done in its enforcement before it is set aside on appeal. 5 Am.Jur.2d Appeal and Error § 997 (1962). Likewise, rights acquired by third persons under a valid judgment will ordinarily be sustained notwithstanding subsequent reversal. 5 Am.Jur.2d Appeal and Error § 958 (1962).
Since Kerlin failed to post a supersedeas bond, the trial court's judgment that Tensaw owned the property remained valid and enforceable until that judgment was reversed on appeal. Kerlin v. Tensaw Land and Timber Co., 390 So. 2d 616 (Ala. 1980). Until the judgment was reversed, Tensaw had all the rights of the true property owner, including the right to lease the property and to have its lessee continue its tree farming operation. The acts of either Tensaw or St. Regis Paper Co. under such a judgment, therefore, cannot be made the basis of an action for damages in tort. A directed verdict, therefore, should have been granted in favor of St. Regis on the conversion, trespass, and willful trespass claims. Nevertheless, Kerlin may still be able to recover under the equitable theory of restitution.
When a judgment is reversed on appeal, the general rule is that the party who received the benefit thereof must make restitution to the other party of money or property received. There is, however, no absolute right to restitution upon reversal. It is an equitable remedy which rests in the sound discretion of the trial court and is to be awarded within the "spirit and policy of the law to promote and compel, when there are not facts and circumstances which may render restitution inequitable." Maslankowski v. Carter, 291 Ala. 8, 277 So. 2d 91 (1973) (quoting McCall v. McCurdy, 69 Ala. 65 (1881)). Where one acquires possession of land under a decree which is subsequently reversed, restitution may be properly awarded. Lehman-Durr Co. v. Folmar, 154 Ala. 480, 45 So. 289 (1907). A decree of restitution is intended to restore to the aggrieved party that which he lost in consequence of the erroneous judgment. Lehman-Durr Co. v. Folmar, 166 Ala. 325, 330, 51 So. 954 (1909). The remedy of restitution is based upon the principle of avoiding unjust enrichment of one at the expense of another. Shaffer v. Reed, 456 So. 2d 1082 (Ala.1984).
Possession of the disputed property was restored to Kerlin upon reversal; however, all of the timber had been removed from the land by St. Regis Paper Company during the pendency of appeal.
Liability for restitution is ordinarily restricted to the parties to a suit; however, a third party who receives the money or property, and who is not a bona fide purchaser, may, in some circumstances, be compelled to make restitution upon reversal. *67 5 C.J.S., Appeal and Error, § 1982 (1958). Radermacher v. Eckert, 63 Idaho 531, 123 P.2d 426 (1942); but see, Harris v. Jim Stacy Racing, Inc., 53 N.C.App. 597, 281 S.E.2d 455 (1981).
St. Regis was not a party to the original action to quiet title, yet it received the benefits from cutting the timber. As longterm lessee of the property, since November 26, 1956, there was an apparent close connection between St. Regis and Tensaw. There was also evidence, although contraverted, that St. Regis knew of the dispute over the land and the pending appeal and yet cut the timber anyway. Upon reversal of the trial court's decree, St. Regis, having theretofore received benefits, arguably became liable to Kerlin in restitution for such benefits. Radermacher v. Eckert, supra.
It appears that in the instant case justice and equity may require that Kerlin be restored to the position he occupied prior to the rendition of the erroneous judgment. However, since the trial court did not address the issue of restitution, we remand this cause for an equitable determination of whether St. Regis is liable for restitution to Kerlin.
We also note that upon review we find no merit in St. Regis's argument that the trial court erred in directing a verdict on its counterclaim for a prescriptive easement.
We, therefore, reverse, based upon our conclusion that the trial court should have directed a verdict in favor of St. Regis on the trespass, conversion, and willful trespass claims, and remand for the trial court's consideration of the equitable issue of restitution.
REVERSED AND REMANDED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.
[1] Kerlin also brought several other claims which were dismissed on summary judgment and which were not made the basis of this appeal. | August 30, 1985 |
f5301094-e8f3-40ef-9f13-8939b6d9fef1 | Connell v. State Farm Mut. Auto. Ins. Co. | 482 So. 2d 1165 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 1165 (1985)
Charles CONNELL
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Perry Davis.
84-58.
Supreme Court of Alabama.
August 2, 1985.
Rehearing Denied January 17, 1986.
John F. Dillon, IV of Dillon, Kelley & Brown and Larry W. Morris of Radney & Morris, Alexander City, for appellant.
Edgar M. Elliott, III and Karon O. Bowdre of Rives & Peterson, Birmingham, for appellees.
ADAMS, Justice.
Charles Connell sued State Farm Automobile Insurance Company and insurance agent Perry Davis for misrepresentation in the course of issuing a policy of insurance to Connell. The trial court granted summary judgment for State Farm and Connell appeals.
The facts of this case are as follows:
Connell met with Davis, who had been a State Farm agent for 19 years, for the purpose of securing a health insurance policy *1166 which would pay for a work related injury and make up for the excess beyond workmen's compensation coverage. Connell told Davis what he wanted, and Davis recommended a policy he thought would satisfy Connell. The policy would pay for a disability until age 65, and had an optional 7-, 14-, or 30-day waiting period.
Connell applied for the recommended policy with a 14-day waiting period, and paid the initial premium. Connell understood that State Farm's home office would have to approve the application. State Farm in fact did not approve the application for these reasons: 1) the 14-day waiting period was no longer offered; and 2) as a truckdriver, Connell did not qualify for the policy which would pay benefits in addition to workmen's compensation recovery.
State Farm apparently issues two types of disability income policies. The "guaranteed renewable policy," available to doctors, lawyers, teachers, and office workers, will pay benefits for injuries covered by workmen's compensation, and will pay benefits until age 65. The "optionally renewable policy" is available to truck drivers, factory workers, and others, and will pay benefits for only 5 years and will not pay benefits for injuries covered under workmen's compensation.
Therefore, as a truck driver, Connell did not qualify for the policy recommended to him by Davis and for which he had applied and paid a premium. To rectify this, State Farm made changes on Connell's application in red ink, with red ink stamped the application "amended," and returned it to Connell along with a form entitled "Amendment of Application for Health Insurance" for Connell to sign, and an optionally renewable disability income policy.
Connell signed the amendment form when Davis presented it to him. The form, in pertinent part, states "I Charles Connell, hereby amend my application dated August 16, 1982 as follows: Issue with a Minimum Income Period of 5 years. Issue the Optionally Renewable Disability Income Policy." In his deposition testimony Connell was asked about the circumstances of his signing the amendment:
Connell says he did not realize that he had not obtained any of the coverage he wanted until July 1983, when a claim he filed on an injury was denied by State Farm because of the workmen's compensation exclusion. Connell filed this suit against State Farm in October 1983, and *1167 summary judgment was entered for the insurer in September 1984.
The issue is whether there is a scintilla of evidence to support the claim that State Farm and Davis, in their manner of amending the original application, defrauded Connell by misrepresenting the coverage he received under his policy.
A contract of insurance is essentially like all other contracts and is governed by general rules of contract. Hartford Fire Insurance Company v. Shapiro, 270 Ala. 149, 117 So. 2d 348 (1960). An application for insurance is an offer to enter into an insurance contract, and if the insurer issues a policy materially different from that applied for, the policy is a counter-offer which becomes binding only when accepted by the applicant. Life Insurance Company of Georgia v. Miller, 292 Ala. 525, 296 So. 2d 900 (1974).
State Farm relies on these principles by stating that the company could not be guilty of fraud when its action amounted to making a counter-offer to Connell, which he accepted. We find, however, that the circumstances of this particular counter-offer exhibit at least a scintilla of evidence of misrepresentation on State Farm's part.
In Torres v. State Farm Fire & Casualty Company, 438 So. 2d 757 (Ala. 1983), we said this:
438 So. 2d at 758. Additionally, in Alabama Mutual Fire Insurance Co. v. Minchener, 133 Ala. 632, 32 So. 225 (1901), this Court stated as follows:
133 Ala. at 635, 32 So. at 226. Therefore, in the present case, Connell has a cause of action if he can show a misrepresentation by Davis upon which he relied to his detriment.
State Farm uses contract principles to argue that Connell's reliance on Davis's recommendation was unreasonable because Connell had a duty to read his policy and determine for himself whether he had obtained the coverage he desired. It is true that in order to recover for misrepresentation, a plaintiff's reliance must have been reasonable under the circumstances, and if a reasonably prudent person using ordinary care would have discovered the truth, there is no misrepresentation. Torres, supra, at 759.
Under the facts of this case, reasonable men could differ on the issue of whether Connell was justified in his reliance. The evidence shows that Connell informed Davis that he specifically wanted insurance that would pay disability benefits in addition to workmen's compensation recovery. Davis told Connell he had a policy which would do that. Connell relied on this representation by Davis. Subsequently, the insurance company sent the amendment form to Connell for his signature, listing two changespayment for a 5-year maximum rather than until age 65, and issuance of the optionally renewable policy rather than the guaranteed renewable policy. Davis did not explain the consequence of this latter change to Connell.
State Farm, through its agent, knew that Connell specifically wanted coverage for workmen's compensation injuries. Connell expected this coverage and paid for it. The policy amendment form changed the duration of payment, and as far as the unknowing reader could tell, simply changed the renewability feature. Connell could not be expected to know that his amended application was a request for coverage which excluded payment for injuries covered by *1168 workmen's compensation. In this respect, and under the facts of this case, we hold that there is a scintilla of evidence to support the misrepresentation claim filed by Connell.
We find no merit, however, in the argument by Connell that the lower court erred in granting a motion in limine to prevent the plaintiff from putting into evidence a statute and several regulations pertaining to insurance applications. The court found the evidence irrelevant in this case and we will not set that ruling aside.
For the above-stated reasons, the judgment of the Circuit Court of Tallapoosa County is reversed and the cause remanded.
REVERSED AND REMANDED.
FAULKNER, JONES, ALMON and SHORES, JJ., concur. | August 2, 1985 |
957da34f-193e-476f-bfac-025610f39555 | Prado North Residences v. Prado North Condo. Ass'n | 477 So. 2d 396 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 396 (1985)
PRADO NORTH RESIDENCES, LTD. and Gary E. Smith
v.
PRADO NORTH CONDOMINIUM ASSOCIATION, INC.
84-733.
Supreme Court of Alabama.
October 4, 1985.
*397 Ronald L. Stichweh and David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellants.
Douglas J. Centeno of Najjar, Denaburg, Schoel, Meyerson, Ogle & Zarzaur, Birmingham, for appellee.
JONES, Justice.
This is an appeal from a summary judgment entered in favor of Plaintiff/Appellee Prado North Condominium Association, Inc. (PNCA), and against Appellants Prado North Residences, Ltd. (PNR), and Gary E. Smith. We reverse and remand.
PNCA, a Georgia condominium homeowners' association, recovered a judgment against PNR in the state court of Fulton County, Georgia. PNR is an Alabama limited partnership doing business in Birmingham, Alabama, and Fulton County, Georgia. Gary E. Smith is the general partner of PNR, but was not served in the Georgia proceeding and did not appear therein. PNCA brought an action in the Jefferson County Circuit Court to collect the unpaid Georgia judgment debt, naming both PNR and Gary E. Smith as defendants.
PNCA's motion for summary judgment, based on the pleadings, the affidavit of one of the members of PNCA, and the deposition of Gary Smith, was granted by the trial court. The court's order states:
PNR and Gary Smith appeal from the entry of summary judgment, claiming that the Alabama circuit court afforded full faith and credit to a foreign judgment without a copy, certified or otherwise, of the foreign judgment being in evidence before the Alabama court. Alternatively, says Appellant Gary Smith, neither was he served nor did he appear in the Georgia proceeding; therefore, he says, the Georgia judgment, even if properly introduced, cannot be the basis of a finding by an Alabama court that he is liable for PNR's judgment debt and the trial court's finding of individual liability violates the constitutional mandate of procedural due process.
Because of our reversal with respect to the evidentiary issue, we could pretermit any consideration of the due process claim. We address this latter question, however, because of its fundamental importance in the context of an individual partner's liability for partnership debts.
Our review of the case law in Alabama reveals a recurring holding in cases involving an attempt to enforce, in an Alabama court, a judgment rendered in another state. We find that it has long been the law in Alabama that in order to obtain enforcement of a foreign judgment, a certified, exemplified, or otherwise properly authenticated copy of that judgment must be before the Alabama court and, therefore, must be a part of the trial record. See, for example, Wheeler v. Buck, 452 So. 2d 864 (Ala.Civ.App.1984); MacLeod v. MacLeod, 448 So. 2d 361 (Ala.Civ.App.1983); Mitchell v. Mitchell, 437 So. 2d 122 (Ala.Civ.App. 1982); Wyatt v. Falhsing, 396 So. 2d 1069 (Ala.Civ.App.1981); Kroger Co. v. Puckett, 351 So. 2d 582 (Ala.Civ.App.1977); Hajovsky v. Hajovsky, 276 Ala. 77, 159 So. 2d 194 (1963); Forbes v. Davis, 187 Ala. 71, 65 So. 516 (1914).
The strict adherence over the years to the requirement of having a properly authenticated copy of the foreign judgment before the court in which it is sought to be enforced is not a matter of territorial arrogance or distrust. Indeed, state courts are
Yet, the certified copy requisite provides the opportunity for the enforcing court to determine whether the court rendering the judgment had the jurisdiction to do so.
In the instant case there was some confusion with regard to the copy of the judgment sought to be enforced. While PNCA's complaint alleged that a copy of the Georgia judgment was attached, it was later determined that through a clerical error no copy was ever attached to the complaint. In a letter to the clerk of the trial court, PNCA's lawyer notified the court of the error and further stated, "I have enclosed herein and properly stamped as Exhibit `A' the original Certificate of Judgment from the State of Georgia which needs to be attached to Plaintiff's Complaint as Exhibit `A.'"
We note, however, that the document filed with the court was not the required copy of the Georgia judgment but was, instead, a copy of the "writ of fieri facias" to the marshal of the State Court of Fulton County directing that Georgia court officer to execute on a judgment entered for PNCA and against PNR. This court document, while referring to the judgment PNCA now seeks to enforce, is not a properly authenticated copy of the Georgia judgment (by which that court's jurisdiction over the parties and/or subject matter would have been determined) and cannot be substituted therefor.
We now address the propriety of imposing individual liability on PNR's general partner, Gary Smith, based on the Georgia judgment against the partnership. *399 Before we address this ultimate due process issue, we will discuss what we perceive to be a point of uncertainty in applying Alabama's partnership laws.
Both by statute and by case law Alabama subscribes to the "entity concept" with regard to both general and limited partnerships. The partnership entity concept was specifically recognized by this Court in 1977 when it criticized earlier cases rejecting a partnership/partner entity theory and held:
The Alabama statutes governing limited partnerships are derived from the Uniform Limited Partnership Act and provide, for example, that
Section 10-8-52(2), in turn, provides that "[a]ll partners are liable ... [j]ointly and severally for all debts and obligations of the partnership, except as may be otherwise provided by law."
Appellee relies on the application of the entity concept to the instant facts to support its contention of "several" liability on the part of Gary Smith for the partnership debt as evidenced by the Georgia judgment against the partnership. This Court in Kelley, however, went on to quote from the Ford case:
Even if we were to assume, for the sake of this discussion, that the Georgia judgment had been validly proved before the Alabama court, there is no record that Gary Smithan individual member of the limited partnership aggregatewas either served with notice of, or appeared in, a trial on the merits of the liability which is the basis of the Georgia judgment. Admittedly (also for the sake of discussion), because Smith had very minimum contacts with the PNR project in Georgia and did not participate in the daily operations of PNR, the Georgia court did not have in personam jurisdiction over him. This fact, however, does not obviate the necessity of initial compliance with the requirements of due process of law. That is to say, PNCA is precluded from enforcing against Smith a partnership judgment debt when Smith has had no opportunity to defend either himself or the partnership on the question of liability for that debt.
When presented with facts of a similar nature, the Fifth Circuit Court of Appeals held:
The rationale for affording an individual due process of law was well stated in the early case of Zeigler v. South & North Alabama R.R. Co., 58 Ala. 594, 599 (1877):
By holding Smith individually liable for the partnership judgment debt, the Alabama trial court necessarily "conclusively presumed" the question of liability against Smith without affording him the opportunity to contest PNCA's claim against him on its merits. Smith's property rights were clearly jeopardized by the judgment belowyet Smith has never been heard in defense of his position on the merits of PNCA's claim against him and the limited partnership.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON and BEATTY, JJ., concur.
ADAMS, J., concurs specially.
SHORES and HOUSTON, JJ., not sitting.
ADAMS, Justice (concurring specially).
I concur specially to point out that I do not interpret the decision rendered herein to imply that the defendant Gary E. Smith cannot be sued individually and a judgment obtained against him in Alabama provided he is afforded procedural due process. I interpret the holding here to mean that defendant Smith cannot be held personally liable merely by the obtaining of a judgment against the general partnership in Georgia. | October 4, 1985 |
427ef439-cd64-4ff1-8de2-1422cd4ff9db | Walker v. WINSTON COUNTY COM'N | 474 So. 2d 1116 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1116 (1985)
Aletha WALKER, Donald Walker and Sam Oditt
v.
WINSTON COUNTY COMMISSION, et al.
84-389.
Supreme Court of Alabama.
August 2, 1985.
Jerry W. Jackson, Haleyville, for appellants.
Charles E. Tweedy, Jr. of Tweedy, Jackson & Beech, Jasper, for appellees.
*1117 ADAMS, Justice.
Mrs. Aletha Walker, Donald Walker, and Sam Oditt brought this action seeking damages for the destruction of trees, fences, and pasture resulting from the grading and reopening of the Lawson-Alexander ("Old Lawson") Road by appellees Maze and Cagle, and seeking a decree from the court that the road had been abandoned. At the ore tenus non-jury trial, the Winston County Circuit Court found for Maze, Cagle, and the Winston County Commission, and held that the Old Lawson Road had not been abandoned and was still a public road. The Walkers and Oditt appeal. We affirm.
The Walkers, Oditt, Maze, and Cagle own land abutting the Old Lawson Road, an unpaved road in northeast Winston County. It is undisputed that the road was open to the public until 1971 or 1972. At that time, Mrs. Aletha Walker and her late husband allegedly entered into an unwritten agreement with Mahugh Porter, a State Highway Department superintendent, whereby they would give the right-of-way for a new section of County Road 80 in exchange for the closing of Old Lawson Road. None of the other area land owners were parties to this agreement, however. This new paved road, which is now a part of County Road 80, connects County Road 80 with County Road 39. (See Appendix A.[1]) The Old Lawson Road had formerly connected these two county roads.
The county ceased maintaining Old Lawson Road after the new road was built, although it never officially closed the old road. The northern portion of the old road continued to be travelled from the intersection of County Road 39 to the Walkers' property line. At the Walkers' property line, saplings had sprung up in the road, and they had placed a fence across it in order that a portion of the road could be used as a pasture.
In 1982, Maze and Cagle cleared the road with a bulldozer, tearing down the fence and saplings. Mrs. Walker, her son Donald, and Sam Oditt then brought this action.
When testimony is presented ore tenus, the findings of the trial court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust. Johnson v. Cleveland, 460 So. 2d 1257 (Ala.1984). Upon careful review of the record, we cannot conclude that the trial court erred in finding that the road had not been abandoned.
A public road may be abandoned in one of several ways. One method of abandonment may be effected by a formal, statutory action. See Code 1975, §§ 23-4-1 through 23-4-6. Another method is nonuse for a period of twenty years. See Harbison v. Campbell, 178 Ala. 243, 59 So. 207 (1912). Additionally, as the appellants allege here, where one road replaces another, there can be an abandonment of a public road by nonuse for a period short of the time of prescription. Floyd v. Indus. Development Bd. of Dothan, 442 So. 2d 927 (Ala.1983). See also Purvis v. Busey, 260 Ala. 373, 71 So. 2d 18 (1954). In such a case, the landowners alleging abandonment by virtue of nonuse have the burden of showing abandonment by clear and convincing evidence. Floyd, supra.
The evidence in this case shows that Mahugh Porter did not have the authority to make an agreement with the Walkers to close the Old Lawson Road. Mack Robinson, Porter's supervisor, testified that Porter merely had authority to carry the deeds to the landowners for their signatures, and did not have authority to negotiate agreements. Furthermore, the other abutting property owners were not parties to the agreement.
Although the evidence indicated the Old Lawson Road was not maintained, county maintenance is not essential to the status of a public road. Davis v. Linden, 340 So. 2d 775 (Ala.1976). A letter from the Winston County Commission, admitted into *1118 evidence, stated that the old road had never been officially closed by the county. Wayne Tidwell, a County Commissioner from 1971 to 1983, confirmed by his testimony that the Commission had taken no action to formally close the road while he was in office. Cagle testified that Tidwell told him in 1978 that there were no records indicating that the road had been closed and, as far as the Commission was concerned, the road could be used.
Although the Walkers had placed a fence across the road at their property line, this alone will not prove abandonment. In Purvis v. Busey, supra, Purvis attempted to fence and pasture a section of a public road ("Road B") in Monroe County. Road B had been replaced by Road A, and had fallen into disuse. In the action to restrain obstruction of a public road, this Court held that although part of Road B had been put into cultivation or pasture by other landowners, this use did not per se constitute an abandonment of Road B. Purvis, 260 Ala. at 378, 71 So. 2d 18.
The evidence indicates that all but the southernmost part of Old Lawson Road continued to be used. Cagle used the road to get to the western section of his property, where he kept cattle. Cagle had no access to this part of his land from the east because of a high bluff and a creek running through his property. Although Cagle had purchased an easement from his neighbor White to get to his land, the costs of developing it were prohibitive, so he continued to use the Old Lawson Road.
Maze also used the old road for access to his property. Maze's son had a mobile home on his northeastern property, and used the road down to the "Y" to get to it. Maze also used the old road to get to the barn on his land. Others, such as forest rangers and loggers, used the Old Lawson Road for access to the forest nearby.
Although a wire fence had been across the road at the Maze-Cagle property line until 1979, when Maze purchased the property, the fence had a gate which allowed cars to pass. A gap or gate across a way to control livestock, as here, will not cause a road to lose its character as a public way, when it is evident that there was no interruption of its use by those travelling it. Powell v. Hopkins, 288 Ala. 466, 262 So. 2d 289 (1972). Both Maze and Cagle testified the road had been travellable all the way down to the Walker line. Donald Walker confirmed that the northern portion of the road had always been open, as did another neighbor, Alvin N. White.
On the basis of this testimony, we find the trial court was not clearly and palpably wrong in finding appellants did not meet their burden of showing abandonment by clear and convincing evidence. We must therefore affirm the judgment of the trial court.
AFFIRMED.
FAULKNER, JONES, ALMON and SHORES, JJ., concur.
*1119
[1] Appendix A is not drawn to scale and is merely intended to aid the reader's understanding of the facts of this case. | August 2, 1985 |
9333e40e-7663-4714-8796-0e37d3a602fd | Beavers v. TRANSAMERICA FINANCIAL SERVICES | 474 So. 2d 1105 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1105 (1985)
Ray Wayne BEAVERS and Patricia P. Beavers
v.
TRANSAMERICA FINANCIAL SERVICES, INC.
84-156.
Supreme Court of Alabama.
August 2, 1985.
*1106 M. Wayne Wheeler, Birmingham, for appellants.
Susan B. Mitchell of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
ADAMS, Justice.
Transamerica Financial Services, Inc., (hereinafter Transamerica) initiated this case by filing a bill for redemption, requesting the Circuit Court of Jefferson County to determine the proper amount Transamerica was required to pay in order to redeem property which had been sold in a foreclosure sale, and upon which Transamerica owned a second mortgage. Ray and Patricia Beavers had purchased the property in the foreclosure sale, and disagreed with Transamerica on the proper redemption amount. The court granted summary judgment in favor of Transamerica and the Beaverses appeal.
This case arises from the following facts:
The Beaverses initially owned the property involved herein, and then conveyed it to Dennis and Donna Coshatt. The Coshatts financed a large portion of the purchase price with a mortgage loan from the Beaverses as mortgagee. Transamerica subsequently made a loan to the Coshatts, and recorded a second mortgage on the property.
The Beaverses foreclosed on the subject property on April 4, 1983, when the Coshatts became delinquent in payment. The Beaverses purchased the property at a foreclosure sale for $43,216.86. Transamerica, holding a second mortgage, gave notice of its desire to redeem the property, but after negotiation, the parties could not agree on the proper redemption amount. Transamerica then filed the present suit on July 20, 1983.
On July 23, 1984, the circuit court granted Transamerica's motion for summary judgment and established the redemption amount at $44,678.35. This amount was determined, pursuant to Code 1975, § 6-5-235, by adding 10% interest to the purchase *1107 price paid by the Beaverses at the foreclosure sale. The interest was calculated from the date of foreclosure until the date of the filing of the complaint by Transamerica. The redemption amount set by the court also included "lawful charges" claimed by the Beaverses pursuant to § 6-5-235. Additionally, the court held that Transamerica was entitled to recover rentals collected on the property by the Beaverses from July 20, 1983, the date of filing suit, to the date of the order. This rental amount was later determined to be $4,200.00.
The Beaverses allege the following three errors by the trial court: 1) The court incorrectly interpreted § 6-5-235 to allow only 10% interest on the purchase amount paid at the foreclosure sale; 2) The court incorrectly awarded Transamerica the amount of rentals paid to the Beaverses during the pendency of the litigation; 3) The court incorrectly dismissed the Beaverses' counterclaim against Transamerica.
We disagree with the Beaverses' claims of error and we affirm the judgment entered below.
The first issue we address involves the correct construction of Code 1975, § 6-5-235, the redemption statute. This statute reads in relevant part as follows:
Code 1975, § 6-5-235. The statute goes on to list acceptable "other lawful charges." The disagreement between the parties concerns the phrase "with legal interest" found at the end of the above excerpt. The Beaverses interpret this to require the imposition of legal interest on the entire previously determined amount, that is, on the sum of the purchase money, plus 10% interest per annum thereon, plus all other lawful charges.
Transamerica, on the other hand, argues that "with legal interest" applies only to the phrase "all other charges." Under this construction, the redemption amount would be the sum of the purchase money, plus 10% interest per annum thereon, plus all other lawful charges, plus legal interest on those other lawful charges. The circuit court correctly used this latter interpretation in determining the redemption amount.
In Wilkes v. Hood, 237 Ala. 72, 185 So. 748 (1939), the Court addressed the payment of interest on the foreclosure sale purchase amount, as distinguished from the payment of interest on one of the statutorily provided "other lawful charges," the "other lawful charge" in that case being the balance due on the original debt. The Code provides for this charge as one of the "other lawful charges":
Code 1975, § 6-5-235(4).
The Wilkes decision states the following about the two distinct interest charges:
237 Ala. at 75, 185 So. at 751. Wilkes, therefore, makes a clear distinction between the 10% interest computed on the purchase amount and the "legal interest" computed on any other lawful charges. Under the plain language of § 6-5-235, the redemption amount includes, first, the purchase *1108 price with 10% per annum interest added thereto, and, additionally, the statutorily allowed other charges, if any, with legal interest added thereto. In the present case, the circuit court did not err on this issue.
The next question we address is whether the circuit court correctly subtracted from the redemption amount Transamerica had to pay, the value of rentals the Beaverses had collected on the property in question. The court determined that the Beaverses had collected $4,200.00 in rent between July 20, 1983, the date Transamerica filed its bill of redemption, and July 23, 1984, the date of the court's order. This amount was subtracted from the redemption amount determined by the court.
The Code provides that a purchaser at a foreclosure sale is entitled to rentals on the property until the date of redemption. The statute reads as follows:
Code 1975, § 6-5-235(6). In Wallace v. Beasley, 439 So. 2d 133 (Ala.1983), we addressed the meaning of this section:
439 So. 2d at 136. Under Wallace then, the trial court was correct in awarding Transamerica, the redemptioner, the value of rentals collected by the Beaverses from the date of the filing of the bill of redemption until the date of the order.
The Beaverses also question the circuit court's decision to return to Transamerica the interest earned on the sum the redemptioner initially deposited with the court upon the filing of the bill of redemption. Because of the dispute regarding the proper redemption amount, Transamerica filed its bill of redemption and tendered to the court the amount of $44,115.26. This sum was placed in an interest bearing account upon Transamerica's request. After the court-determined redemption amount was paid to the Beaverses, the remaining funds in this escrow account were returned to Transamerica. The Beaverses argue that if Transamerica was entitled to the rentals on the subject property from the date of redemption, then the Beaverses should be entitled to the interest on the court-held redemption money from the date of redemption.
We can find no cases on this precise issue. It is accepted law, however, that a redemptioner need not always tender the redemption amount into the court. We quote from Francis v. White, 160 Ala. 523, 49 So. 334 (1909), in which the Court stated:
160 Ala. at 527, 49 So. at 335. In the present case, Transamerica, although in good faith disagreement over the redemption *1109 amount, nevertheless tendered into the court an amount reflecting Transamerica's interpretation of the statute. Since Transamerica, arguably, was not required to tender the funds into the court, and since the funds were put into an interest bearing account because of a request by Transamerica, and since § 6-5-235 does not include such interest among the items comprising the redemption amount, we hold that the trial court correctly returned the excess escrow money to Transamerica.
The final issue to be disposed of is the Beaverses claim that the trial court erred by striking their counterclaim against the redemptioner. Transamerica had initially sought attorney's fees in its original complaint. This claim was dismissed from the complaint upon the Beaverses' motion to strike. The Beaverses then filed a counterclaim against Transamerica, alleging abuse of process because Transamerica had requested such attorney's fees. This counterclaim was dismissed upon Transamerica's motion. We find no error in the lower court's dismissal of this counterclaim.
For the above-stated reasons, the judgment of the Circuit Court of Jefferson County is affirmed.
AFFIRMED.
FAULKNER, JONES, ALMON and SHORES, JJ., concur. | August 2, 1985 |
4d4e780d-3662-45be-bbce-11002e8d8a45 | First Alabama Bank v. Spragins | 475 So. 2d 512 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 512 (1985)
FIRST ALABAMA BANK OF HUNTSVILLE, N.A.
v.
Marion Beirne SPRAGINS III, et al.
83-606, 83-795.
Supreme Court of Alabama.
August 23, 1985.
*513 Frank K. Noojin, Jr. and Michael I. Spearing of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
J. Allen Brinkley of Brinkley & Ford and Robert C. Gammons of Timberlake & Gammons and William T. Galloway, Jr. of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
PER CURIAM.
This case involves two separate appeals: the first appeal is from a judgment in a suit by beneficiaries of a trust against First Alabama Bank of Huntsville, N.A., acting as trustee under a written trust agreement, claiming mismanagement of the trust fund and breach of a fiduciary duty, and requesting removal of the trustee and an accounting of the subject trust; the second appeal is from a final judgment after the trial of the foregoing cause denying the Bank's request for additional attorneys' fees from the trust fund. Because of our reversal of the judgment and remand of this cause for further proceedings in equity, we will address at length only the threshold issue: whether the trial court erred in denying the Bank's motion to strike the Plaintiffs' demand for a jury trial.
The Bank strenuously insists that the Plaintiffs' claim for money damages, grounded on the allegation that the Bank, as a professional trustee, breached its fiduciary duty in its management of the trust estate, is not such a claim for money damages, cognizable at common law, as to entitle the Plaintiffs to a jury trial. We agree. While, generally speaking, a trust, created by written instrument, partakes of many of the same legal incidents as other written agreements, historically, remedies to enforce rights arising under a trust have been relegated to the exclusive jurisdiction of equity.
It is generally accepted that the modern trust is an outgrowth of the ancient cestui que use. The cestui que use was "one for whose use and benefit lands or tenements [were] held by another." Black's Law Dictionary (4th ed. 1957). It was a common method used by feofors to avoid feudal burdens or forfeitures for treason. 2 Scott on Trusts, § 164 (3d ed. 1967). The relationship created by this use required no active duties or powers on the part of the feofee (the one in whom legal title or seisin was held). All affirmative duties were required to be contained within the use agreement. 2 Scott on Trusts, supra. Because legal title was in the feofee, there was no remedy at law when the feofee used the land for his own benefit rather than for the benefit of the feofor. The court of equity stepped in to fill this void.
According to Professor Maitland, "[t]rusts fell under the equitable jurisdiction of the Court of Chancery and for that very reason the Courts of Law did not enforce them. Just now and again they threatened to give an action for damages against the defaulting trusteebut they soon abandoned this attempt to invade a province which equity had made its own." Maitland, Lectures on Equity, p. 54, as cited in Scott and Scott, Cases on Trusts, at p. 415 (5th ed. 1966).
Both Scott and the Restatement (Second) of Trusts (1959) recognize exclusive equitable jurisdiction over remedies for a beneficiary against a trustee, with two exceptions: "(1) If the trustee is under a duty to pay money immediately and unconditionally to the beneficiary, the beneficiary can maintain an action at law against the trustee to enforce payment. (2) If the trustee of a chattel is under a duty to transfer it immediately and unconditionally to the beneficiary and in breach of trust fails to transfer it, the beneficiary can maintain an action at law against him." Restatement (Second) of Trusts, § 198 (1959). The courts of Alabama have consistently recognized and applied this common law development. Ex parte Garner, 280 Ala. Ill, 190 So. 2d 544 (1966). For a case applying the "at law" exception, see Ex parte Davis, 465 So. 2d 392 (Ala. 1985).
Although the issue was somewhat differently framed, this Court in First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415 at 423 (Ala.1982), stated:
Applying this rule to the Plaintiffs' complaint, the trial court held that the Plaintiffs were not entitled to a jury trial with respect to their demands to remove the Bank as trustee and to require an accounting of the Bank. As to the remaining request for money damages, however, the trial court held that this did create a legal issue that entitled Plaintiffs to a trial by jury.
While the rule, as here applied, is generally correct, it is not correct with respect to trusts. As seen by the historical background, the court of equity embraced the full jurisdiction of trusts, save for the two exceptions referred to above, neither of which is applicable here.
We recognize that the application of pure logic presents a persuasive argument for including a third exception: a claim for money damages only, based on an alleged breach of fiduciary duty. We are persuaded, however, to adhere to precedent and leave all matters pertaining to trusts, other than the two recognized exceptions, within equity's exclusive jurisdiction.
Because remedies of money damages based on a claim for breach of trust were not cognizable at law, we are constrained to reverse the judgment from which the first appeal is taken and to remand this cause for further consideration by the trial court.
In keeping with the spirit of A.R.Civ.P. 1(c), we direct that this cause be reassigned to the same trial judge who heard the entire proceedings before the jury and whose judgment, based on the jury verdict, is the subject of this appeal. Upon the retrial of this cause, the trial judge, sitting in equity, may elect to treat the jury's verdict as advisory and give it such weight as, in his discretion, he deems appropriate.
He may proceed without additional testimony to make findings of fact and conclusions of law; or, in his sole discretion, he may choose to await the entering of independent findings and final judgment until he has heard additional testimony. In like manner, he may elect to have counsel for the respective parties reargue some or all of the issues, with or without the taking of additional testimony.
In summary, the trial judge is not required to conduct a completely new trial before rendering his independent findings and judgment so long as the trial judge on remand is the same trial judge who heard *515 the entire cause presented to the jury. This directive, however, is not intended to limit the trial judge's discretion in conducting a new trial as outlined above.
While it is unnecessary to discuss at length each of the numerous issues remaining, because of the impending reconsideration of this cause by the trial judge, we will address briefly the propriety of the trial court's denial of the Bank's motion for directed verdict and the issue of damages. We re-emphasize that our treatment of these issues is by way of general observations for the guidance of the trial court's further proceedings in this cause, and is not intended for precedential value in this or any other cause. The reader will also understand that our observations, of course, are limited to the evidence of record before us, and are not intended to restrict or otherwise influence the record upon remand of this cause to the circuit court.
To better understand and appreciate the Bank's position with respect to the directed verdict, we set forth a brief statement of the undisputed background facts. The trust donor had served as President and then as Chairman of the Board of the Trustee Bank. Before his death in 1973, he executed a last will and testament which, inter alia, contained a rather lengthy and sophisticated instrument of trust, naming the instant Plaintiffs as beneficiaries and the instant Defendant Bank as trustee. The assets of his estate before administration totaled $4 million. After the testator's specific bequests had been honored and the payment of debts, the net value of the trust was in excess of $500,000. Stock in the Trustee Bank's holding company comprised approximately 30% of the total worth of the testator's estate prior to administration. This stock composed more than 70% of the trust after administration.
Following summary judgment on behalf of the Bank as to certain of the Plaintiffs' claims and severance of certain "equitable" claims, the central thrusts of the claims submitted to the jury were mismanagement of the trust fund and dereliction and indifference of the trust officer in ascertaining and meeting the needs of certain second generation beneficiaries as specifically provided in the trust instrument.
The Bank does not contend that the trial court's recognition and application of the "prudent person" rule, with respect to the Bank's alleged breach of fiduciary duties, was an erroneous interpretation of Alabama law generally; rather, it is the Bank's contention that this general rule was modified by the express terms of the trust agreement. Specifically, the Bank calls our attention to the following language from the trust document:
While we are purposefully avoiding a detailed statement of the evidence, as well as the parties' respective positions as to reasonable inferences therefrom, it is necessary and appropriate that we make this further comment: The plaintiffs allege in part that the trust's portfolio contained an *516 inordinant amount of the Bank's holding company stock, in violation of sound management practices as testified to by expert witnesses. The Bank counters by pointing to the "lack of diversification" authorization in the instrument of trust.
We agree with the general proposition that the duties and obligations of the trustee are governed in large measure by the terms of the trust instrument. Scott and Scott, Cases on Trusts, p. 418. We do not agree, however, that this proposition can be applied here to lessen the duty imposed by the "prudent person" standard. Birmingham Trust National Bank v. Henley, 371 So. 2d 883 (Ala.1979). A statement of the general rule is found in the Restatement (Second) of Trusts at § 174 (1959):
As the beneficiaries point out, the "lack of diversification" authorization must be read in conjunction with the totality of the trust agreement which contains the following additional language:
We do not perceive, from the language of this trust, that the donor intended by his "lack of diversification" provision to authorize acts of imprudence in the management of the trust to the point of disregarding the interests of the beneficiaries, the sole purpose of the trust arrangement in the first instance. Here, again, we emphasize that it is not our purpose to comment upon the weight of the evidence, for it is not the province of an appellate court to make findings of fact. Our comment is intended merely as rationale for the rejection of the Bank's position that the standard of duty was one merely of bad faith when its duty is measured in light of the specific authorization of the trust agreement.
Applying the "prudent person" rule, then, to the evidence of record before us, we are constrained to hold that the trial court did not err in holding that a fact issue was presented on the breach of duty issue.
While this court is of the opinion that the evidence adduced at the trial below, and the reasonable inferences therefrom, will support a judgment under the "prudent person" test, we are further of the opinion that, viewing the evidence more strongly in favor of the beneficiaries, there are no reasonable inferences supportive of the finding of bad faith or willful mismanagement as to support an award of punitive damages.
Because the trial court's ruling with respect to attorneys' fees was necessarily tied to the jury verdict and judgment rendered thereon in the principal case, we are constrained to reverse the judgment on which this appeal is based and remand the cause for further consideration by the trial judge in light of the final judgment to be entered in the primary case on remand. For the standard applicable to attorney's fees in trust matters, see Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala.1985).
REVERSED AND REMANDED WITH INSTRUCTIONS.
All the Justices concur. | August 23, 1985 |
bf38020a-2380-4c3c-8ce1-cb82587f7585 | Jones v. Davis | 477 So. 2d 285 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 285 (1985)
Truman L. JONES
v.
Esker L. DAVIS, Jr., et al.
J.W. CASEY
v.
Esker L. DAVIS, Jr., et al.
83-624, 83-741.
Supreme Court of Alabama.
August 23, 1985.
Rehearing Denied September 20, 1985.
*286 Wesley Romine and Roger S. Morrow of Whitesell, Morrow & Romine, Montgomery, for appellants Truman L. Jones.
John A. Henig, Jr., of Copeland, Franco, Screws & Gill, Montgomery, and John A. Taber, Greenville, for appellant J.W. Casey.
Jere L. Beasley, James W. Traeger, and Sharon G. Yates of Beasley and Wilson, Montgomery, for appellees.
SHORES, Justice.
Esker Davis, Jr., decided to sell his 3,000-plus acres of land in Pike and Bullock Counties. He contacted Truman Jones, a real estate agent, and listed the property with his agency. Jones contacted J.W. Casey, who expressed interest in purchasing the land. Jones, Casey, and Davis met on the property, which was the only time Casey and Davis met. Davis told Casey that he wanted to reserve the right to hunt on the property for himself and his sons. Casey consented. Thereafter, Casey offered to pay $1,750,000 for the property. Davis countered with an offer to accept $2,100,000. They finally agreed on a price of $2,000,000.
The listing agreement was prepared by Davis or his attorney; the contract was prepared by Davis's attorney; Davis furnished the title insurance policy; and the deed was prepared by his attorney. None of these documents contained any reservation of hunting rights, although the contract reserved a right of way in favor of some of the Davis family, and the deed reserved fishing rights for Davis's mother, who had reserved them by deed when Davis and his brother bought the property from her.
The disagreement between these parties concerns the nature of the hunting rights. Davis contends that he intended to reserve the exclusive right to hunt. Casey contends he has honored the agreement in that he extended to Davis and his family the right to hunt as long as he owned the land, and when he leased the hunting rights to a third party, he expressly provided that Davis and his sons had the right to hunt.
The closing took place on July 20, 1981. Davis executed the deed, which was prepared by his attorney, who was present at the closing. Casey was not present, but was represented by an attorney. The deed did not contain a reservation of hunting rights, but did reserve Davis's mother's fishing rights. When Casey agreed to sell the property to Willman Timberlands, Inc., Davis's lawyers attempted to insert a reservation of hunting rights in favor of Davis in the deed from Casey to Willman. When that failed, Davis filed this lawsuit in September 1982, against Casey and Jones, alleging breach of contract and fraud. The gravamen of Davis's claim is that Casey and Jones promised him he would have hunting rights and breached that promise. Alternatively, he argues that Casey and Jones fraudulently misrepresented that Davis would have such rights, thus entitling him to damages in tort.
Casey and Jones contend that there was no breach of contract and no fraud or misrepresentation. They assert that if the agreement was that Davis would retain the exclusive hunting rights, this agreement is void as violative of the statute of frauds, § 8-9-2, Ala.Code 1975. In this they are correct, because hunting rights are property rights, or profits a prendre, which may *287 be acquired only by grant or lease from the owner of land. See 38 C.J.S. Game § 4 (1943). However, we need not belabor this point inasmuch as only the fraud claim is before us.
To this charge, Casey and Davis deny any misrepresentation and point out that Davis's failure to retain the hunting rights was the result of his or his attorney's failure to include a reservation of those rights in the deed. They also argue that if fraud is assumed, the statute of limitations has run on this claim, because the complaint shows on its face that Davis either knew or should have known when he executed the deed that he did not reserve such rights. We agree. The record is clear that Davis knew that the hunting rights which he now contends he was promised by Casey or Jones or both were subject to reservation in writing. He reserved his mother's fishing rights in this way. He was experienced in real estate matters and was represented by his own attorney throughout these negotiations. It is true that § 6-2-3, Ala.Code 1975, provides that the statute of limitations for fraud actions does not begin to run until the plaintiff discovers the facts constituting fraud. We have consistently held, however, that this means the discovery of such facts as would put a reasonable person on inquiry which, if pursued, would lead to discovery of the fraud. Papastefan v. B & L Construction Co., 385 So. 2d 966 (Ala.1980). If Davis believed, as he now asserts, that Casey was to convey the hunting rights by separate instrumentalthough there is no evidence to support such a beliefhe surely knew he had not done so when the transaction was closed in the presence of attorneys representing both the buyer and the seller. He signed the deed and accepted a check from Casey. If these facts are subject to an inference that Casey or Jones was guilty of fraud or misrepresentation, Davis was sufficiently apprised of the fraud at the closing to commence the running of the statute of limitations. Kelly v. Smith, 454 So. 2d 1315 (Ala.1984); Gonzales v. U-J Chevrolet Co., 451 So. 2d 244 (Ala.1984).
We hold that the fraud claim is barred by the statute of limitations, and, thus, the trial court erred in denying the defendants' motions for directed verdict on that claim.
The judgment of the trial court is reversed and remanded.
REVERSED AND REMANDED.
MADDOX, FAULKNER, JONES and BEATTY, JJ., concur. | August 23, 1985 |
c1ea8497-b5a5-4963-abd0-715c4015f95a | Ex Parte Singleton | 475 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 186 (1985)
Ex parte Inez SINGLETON.
(In re ALABAMA STATE TENURE COMMISSION v. Inez SINGLETON).
84-437.
Supreme Court of Alabama.
August 2, 1985.
*187 Herbert M. Newell, III, of Ray, Oliver, Ward & Parsons, Tuscaloosa, for petitioner.
J.L. Chestnut, Jr., Selma, for Alabama State Tenure Com'n.
BEATTY, Justice.
Petitioner Inez Singleton seeks a writ of mandamus to the Court of Civil Appeals, directing it to dismiss the appeal in the case Alabama State Tenure Commission v. Singleton, 475 So. 2d 185 (Ala.Civ.App. 1984), because that court lacked jurisdiction. The writ is denied.
The following facts led to the filing of this petition:
Singleton was employed by the Greene County Board of Education (Board) as an assistant superintendent and as Federal Programs Coordinator. In May 1983, the Board abolished these two positions and transferred her to another position. After a Board hearing affirming the transfer, Singleton appealed to the Alabama State Tenure Commission (Commission), which upheld the Board's decision. Next, Singleton petitioned the Greene County Circuit Court for a writ of mandamus directing the Commission to vacate its decision. The circuit court granted the writ on June 5, 1984.
Forty-one days after the entry of judgment by the circuit court, a notice of appeal was filed in the Court of Civil Appeals. This notice, filed on July 16, 1984, designated the Board as the appealing party. On August 21, 1984, Singleton filed a motion to strike the notice of appeal or to dismiss the appeal on the ground that the Board was not a party to the judgment of the circuit court and thus could not take an appeal therefrom. In response to Singleton's motion, the Commission filed a motion to correct the notice of appeal, claiming that the designation of the Board as the party appealing resulted from a clerical error.
Singleton filed a reply to the Commission's motion in which she claimed that the notice "clearly and unequivocally" shows that it was the Board, and not the Commission, that intended to appeal. She points to the fact that the chairman of the Board, Carol Zippert, signed the notice, which is part of the security for costs, as the "appellant-principal," whereas the Commission is *188 not required, as a matter of law, to post bond or otherwise give security for costs for an appeal taken by it. Following Singleton's reply to its motion, the Commission filed another motion requesting a suspension of the rules so as to allow a substitution of parties on the notice of appeal.
The Court of Civil Appeals granted the Commission's motion to substitute named appellants and denied Singleton's motion to dismiss the appeal. It was not until after both parties had submitted briefs on the merits and the Court of Civil Appeals had issued an opinion reversing the circuit court's judgment that Singleton filed this petition for a writ of mandamus to the Court of Civil Appeals. By an order issued February 21, 1985, this Court instructed "[t]hat the respondents, Hon. L. Charles Wright, Hon. Robert P. Bradley, Hon. Richard L. Holmes and the Alabama State Tenure Commission, file with the Clerk of this Court their answers to the said petition on the question of whether or not the Court of Civil Appeals obtained jurisdiction to make a substitution of the parties after 42 days from the entry of judgment, with briefs in support of said answers, within fourteen (14) days from the date of this order." These answers, as well as petitioner's reply thereto, were duly filed.
The first issue presented by this petition is whether this Court should grant Singleton's motion to compel discovery of facts which are set out in her brief to this Court in support of her petition but which were not before the Court of Civil Appeals. It is well settled in Alabama that:
The primary issue on this appeal is whether or not the Court of Civil Appeals obtained jurisdiction, allowing that court to permit a substitution of the named appellant more than 42 days from the entry of judgment. Singleton contends that the court never obtained jurisdiction of the appeal because the appealing party, the Board, was not a party to the judgment. She cites Evers v. Link Enterprises, Inc., 386 So. 2d 1177, 1180 (Ala.Civ.App.1980), where that court held that "[o]nly parties to a judgment may appeal from it." Singleton further contends that because the Commission did not act to correct the notice of appeal within the prescribed period for filing, proper notice under Rule 3(c), A.R.A.P., was not filed. Rule 3(c) provides:
Rule 3 further provides:
The Commission concedes that the Board was not the proper party to appeal, but contends, as it did before the Court of Civil Appeals, that the designation of the Board resulted from clerical error. In support of this contention, counsel for the Commission points out that, prior to being appointed to represent the Commission in the circuit court, he had also represented the Board against the petitioner in her appeal to the Commission. He further claims that he instructed a secretary to complete the paperwork necessary to appeal the writ *189 of mandamus issued to the Commission by the circuit court and that the secretary mistakenly appealed in the name of the Board. The Commission argues that despite this clerical error the timely filing of the notice of appeal was sufficient to invoke the jurisdiction of the Court of Civil Appeals. We agree.
Pursuant to the order of this Court, the Court of Civil Appeals filed the following answer to this petition for writ of mandamus, which this Court agrees with and adopts:
We agree with respondents that, in the context and posture of this case, application by analogy of the procedure of Rule 17, A.R.Civ.P., was proper under our Rule 2(b), A.R.A.P., to permit a substitution of the real party appellant more than 42 days from judgment where such substitution or amendment did not in any way change the merits of the appeal. Rule 17 provides in pertinent part:
Rule 2(b), A.R.A.P., provides, in pertinent part:
In Board of Water and Sewer Commissioners of the City of Mobile v. McDonald, 56 Ala.App. 426, 430-31, 322 So. 2d 717, 721, cert. denied, 295 Ala. 392, 322 So. 2d 722 (1975), the court quoted from 6 Wright & Miller, Federal Practice and Procedure, § 1501, at 523-24 (1971):
The court then held as follows:
Accord, Manning v. Zapata, 350 So. 2d 1045 (Ala.Civ.App.1977).
We find McDonald, supra, to be directly analogous to the case at bar, with one distinguishing factor: the McDonald case involved a change to name the real party plaintiff at trial, whereas here we are concerned with a change to name the real party appellant on appeal. In view of the primary purpose of Rule 2(b), A.R.A.P., as stated in the Committee Comments quoted below, we find this to be a distinction without a difference:
Mandamus is an extraordinary remedy that will not be granted unless there is a clear showing of error in the court below clearly and specifically entitling the petitioner to the relief sought. Ex parte Baker, supra; Tuscaloosa City Board of Education v. Roberts, 440 So. 2d 1058 (Ala.1983); Ex parte Jim Skinner Ford, Inc., 435 So. 2d 1235 (Ala.1983). We do not think the Court of Civil Appeals *191 erred in granting the Commission's motion for substitution, nor do we think, in doing so, it abused its discretion. Petitioner has shown no prejudice by the substitution and, therefore, has not met her burden of showing she has a clear right to relief.
For the foregoing reasons, the writ should be, and it is, hereby denied.
WRIT DENIED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | August 2, 1985 |
8a92a381-3c30-453e-8e00-49540de00586 | Johnson v. City of Mobile | 475 So. 2d 517 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 517 (1985)
Myland D. JOHNSON, et al.
v.
The CITY OF MOBILE, Alabama.
83-621.
Supreme Court of Alabama.
August 23, 1985.
Richard G. Alexander and Charles H. Durham, III, of Alexander and Knizley, Mobile, for appellants.
John L. Lawler and Steve Olen of Finkbohner, Lawler & Olen, Mobile, for appellee.
TORBERT, Chief Justice.
Myland Johnson and others, as representatives of a certified class of Mobile municipal employees, appeal from a judgment entered against the class and in favor of the City of Mobile, on a claim for benefits under the City's Career Development Compensation Program. We reverse.
In November of 1978, the City of Mobile initiated a Career Development Compensation Program in which employees were encouraged to improve their job skills by engaging in educational activities related to their job. Employees in the program received incentive pay on the basis of participation in educational activities and the number of years employed.
In February of 1979, the Career Development Compensation Program was explained by representatives of the City to the members of the Personnel Board of Mobile County, and the program was approved by the Personnel Board for implementation by the City.
Payments under the Career Development Compensation Program were continued by the City of Mobile until October of 1981. *518 In December of 1981, the City of Mobile, by letter, advised its employees that payments under the Career Development Compensation Program were being discontinued because of the City's inability to continue funding the program.
In October of 1982, payments under the discontinued plan were scheduled to come due. At that time, the City failed to pay the employees any benefits under the plan. Consequently, the Mobile employees brought their complaints before the Mobile County Personnel Board. However, no action was ever taken by the Personnel Board.
In January of 1983, the plaintiffs filed this class action suit, in which they requested the court to order the continuation of the Career Development Compensation Program and payments to employees thereunder on the premise that the City of Mobile had failed to obtain permission from the Personnel Board to discontinue the compensation payments under the program as required by law and the rules of the Personnel Board.
A nonjury trial was held on November 21, 1983. The trial court found that the benefits provided by the Career Development Compensation Program were "compensation" as defined by law and the Personnel Board rules. However, the court denied the claims of the employees and based its decision on findings that the Career Development Compensation Program, as administered by the Personnel Board and the City, had been contrary to law in that the Director of the Personnel Board had failed to certify benefits provided under the Career Development Compensation Program and had failed to monitor the program as required by law. The trial court held that it could not use its equity powers to promote or to require the continuance of an illegal activity.
The employees filed a motion for a new trial, which was denied. Thereafter, the employees filed this appeal.
The nature of the complaint is an action seeking in equity to compel the Director of the Personnel Board, and the City of Mobile, to comply with the duties imposed upon them by law and Personnel Board regulations. The amended complaint asks, in pertinent part:
The Director of the Personnel Board is required by Section 28 of Local Act No. 470, 1939 Ala. Acts, to certify all payrolls for any salary or compensation paid to any person in the classified service. This was not done with regard to the Career Development Compensation Program. As a result, the trial court concluded that previous payments under the plan had been made contrary to law and that it could not command the continuance of an illegal act. The appellants argue on appeal that the only reason the program was not certified by the Director was that the City of Mobile had failed to furnish the necessary employment and participation records in accordance with a previous agreement.
Under the facts as presented in this case, the municipal employees have a clear and specific right to the certification of the Career Development Compensation Program. Nevertheless, the trial court found that the program could not be continued in the absence of certification by the Director of the Personnel Board. We hold that this was error.
This Court's adoption of the Alabama Rules of Civil Procedure abolished the harsh technicalities of the old forms of pleading. The new rules are to be construed liberally to effect the purpose of the rules, and, under the rule of liberal construction, every reasonable intendment and presumption must be made in favor of the *519 pleader. B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979).
Under the new rules, the primary purpose of pleading is to provide fair notice to adverse parties of any claim against them and the grounds upon which it rests. Simpson v. Jones, 460 So. 2d 1282 (Ala. 1984). Generally, the pleadings, in and of themselves, are considered relatively unimportant because cases are to be decided on the merits. Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 314 So. 2d 663 (1975).
Johnson's complaint, liberally construed with every reasonable intendment and presumption made in favor of the pleader, provides a basis for the determination that the municipal employees' request for relief encompassed a request that the City comply with the laws and regulations relating to the administration of the Career Development Compensation Program, which, in accordance with Local Act No. 470, required certification by the Director. Moreover, though pleadings serve only as a rough guide to the nature of a case, there is no question that it is a court's duty to grant whatever relief is appropriate in a case on the basis of the facts proved, regardless of whether the party specifically demanded such relief in his pleadings. Rule 54(c), A.R.Civ.P.; Penney v. Carden, 356 So. 2d 1188 (Ala.1978); Robinson v. Lorillard Corporation, 444 F.2d 791 (4th Cir.1971); 6 J. Moore, Moore's Federal Practice § 54.62 (2d ed.1985). Consequently, in light of the fact that the evidence showed that the employees had a clear and specific right to certification, the trial court should have ordered the Director of the Personnel Board to certify the program and should have entered any other order that might have been necessary to insure that the Director would make that certification.
Therefore, the judgment of the trial court is reversed and the case remanded with instructions to proceed in accordance with the views expressed herein.
REVERSED AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES and ADAMS, JJ., concur.
EMBRY and BEATTY, JJ., dissent.
EMBRY, Justice (dissenting).
I would affirm the judgment below.
In November of 1978, the City of Mobile initiated a Career Development Compensation Program in which employees were encouraged to improve their job skills by engaging in educational activities related to their job. Employees in the program received incentive pay on the basis of participation in educational activities and based upon the number of years employed.
In February of 1979, the Career Development Compensation Program was explained by representatives of the City to the members of the Personnel Board of Mobile County, and the program was approved by the Personnel Board for implementation by the City.
Payments under the Career Development Compensation Program were continued by the City of Mobile until October of 1981. In December of 1981, the City of Mobile, by letter, advised its employees that payments under the Career Development Compensation Program were being discontinued because of the City's inability to continue funding the program.
In October 1982, payments under the discontinued plan were scheduled to come due. At that time, the City failed to pay the employees any benefits under the plan. Consequently, the Mobile employees brought their complaints before the Mobile County Personnel Board. However, no action was ever taken by the Personnel Board.
In January of 1983, the plaintiffs filed this class action suit in which they requested the court to order the continuation of the Career Development Compensation Program and payments to employees thereunder, on the premise that the City of Mobile had failed to obtain permission from the Personnel Board to discontinue the compensation payments under the program *520 as required by law and the rules of the Personnel Board.
A nonjury trial was held on 21 November 1983. The trial court found that the benefits provided by the Career Development Compensation Program were "compensation" as defined by law and the Personnel Board rules. However, the court denied the claims of the employees and based its decision on findings that the Career Development Compensation Program, as administered by the Personnel Board, and the City, had been contrary to law, because the Director of the Personnel Board had failed to certify benefits provided under the Career Development Compensation Program and had failed to monitor the program as required by law. The trial court held that it could not, and would not, use its equity powers to promote or to require the continuance of an illegal activity.
The employees filed a motion for a new trial, which was denied on 13 February 1984. Thereafter, the employees filed this appeal.
Plaintiffs' complaint is an equitable action (partaking of the aspects of an ex delicto complaint), seeking to compel the Director of the Personnel Board, and the City of Mobile, to comply with the duties imposed upon them by law and Personnel Board regulations. The Director of the Board is required by Section 28 of Local Act No. 470 (1939) to certify all payrolls for any salary or compensation paid to any person in the classified service. This was not done with regard to the Career Development Compensation Program. Accordingly, the trial court correctly concluded that payments under the plan had been made contrary to law, and further, that equity could not command the continuance of an illegal act. Ex parte State ex rel. Mitchell, 271 Ala. 203, 123 So. 2d 209 (1960).
The appellants argue that the only reason the program was not certified by the Director was because the City of Mobile has failed to furnish the necessary employment and participation records that it had previously agreed to furnish. The Director, Mr. Richardson, explained that no such records were kept in his office because the duty and responsibility for keeping such records was delegated to the City of Mobile by agreement at the time the compensation plan was approved.
Under the facts as presented, the municipal employees have a clear and specific right to the certification of the Career Development Compensation Program; however, they are without an adequate legal remedy to enforce this right. Accordingly, a writ of mandamus would lie to compel the Director of the Personnel Board, and the City of Mobile, to perform their nondiscretionary ministerial tasks which are required by law. Ex parte Houston County, 435 So. 2d 1268 (Ala.1983); Reed v. City of Montgomery, 376 So. 2d 708 (Ala.1979).
As noted above, the Mobile County Personnel Board approved the Career Development Compensation Program on 6 February 1979, and, for a three-year period, payments were made under the plan. Section 28 of Local Act 470 (1939) provides in pertinent part:
Thus, the city employees should have petitioned for a writ of mandamus commanding the Director of the Personnel Board to certify the Career Development Compensation Program, and further directing the City of Mobile to both furnish the Personnel Board the necessary employment and participation records, and pay the benefits under the plan, upon certification.
*521 I would hold that the trial court did not err in finding the Career Development Compensation Program could not be continued in the absence of the certification of the Director of the Mobile County Personnel Board.
BEATTY, J., concurs. | August 23, 1985 |
b4397ff3-293f-47e5-86aa-9c42b49c0352 | Romine v. Medicenters of America, Inc. | 476 So. 2d 51 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 51 (1985)
Dorise ROMINE, as Administratrix of the Estate of Edith O. Brooks, Deceased
v.
MEDICENTERS OF AMERICA, INC., and Jerry Lewis, M.D.
83-1389.
Supreme Court of Alabama.
August 30, 1985.
*52 P. Russell Tarver of Tarver & Veigas, Birmingham, for appellant.
Mark W. Lee of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee Medicenters of America, Inc.
Roy W. Scholl, Jr. and William T. Mills, II of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee Jerry Lewis, M.D.
SHORES, Justice.
This is a medical malpractice case. The plaintiff, Dorise Romine, as administratrix of the estate of her mother, Edith Brooks, filed suit against defendants Medicenters of America, Inc., and Jerry Lewis, M.D., alleging negligence in the treatment and care of her mother. The case was tried before a jury, which returned a verdict in favor of both defendants. From a judgment entered on that verdict, the plaintiff appeals. We affirm.
In February of 1977, Edith Brooks was admitted as a patient to Lloyd Noland Hospital in Birmingham, where she was diagnosed and treated for pneumonia. In May of that year, following her release from the hospital, she fell at home and sustained a fracture to her hip. She was treated for this injury at Lloyd Noland. Following her discharge from the hospital, she suffered a stroke and, on July 5, 1977, was admitted to the University of Alabama Medical Center *53 in Birmingham (UAB), where she remained until July 27, 1977. Her treating physician at UAB was Dr. Frank Bonikowski, who diagnosed her as suffering from, inter alia, a subarchnoid hemorrhage, thrombophlebitis of the right leg, anemia, dementia, and organic heart disease.
A subarchnoid hemorrhage involves bleeding into or around the brain. In Dr. Bonikowski's opinion, the most probable cause of Edith Brooks's hemorrhage was the rupture of a Berry aneurysm. Such an aneurysm is a weakening of the wall of a blood vessel. With elevated blood pressure, the vessel is subject to rupture. Dr. Bonikowski became concerned that a "rebleed" of the aneurysm might occur. The statistical rate of a "rebleed" is high and carries with it a significant mortality rate. To prevent a "rebleed," surgery was indicated, during which the weakened portion of the blood vessel would be clipped. Because of her overall condition, Edith Brooks was determined ineligible for this surgical procedure. Consequently, she was discharged from UAB to Medicenter, an extended care facility in Birmingham. Her treating physician at Medicenter was Dr. Jerry Lewis, who testified as to her condition upon admittance as follows:
Subsequent to her discharge from Medicenter, Edith Brooks was cared for by nurses in the home of a member of her family. She remained there approximately nine days before, once again, being admitted to Lloyd Noland Hospital, where she died on November 5, 1977. No autopsy was performed.
At trial, the plaintiff presented evidence tending to show that Edith Brooks died as *54 a result of a blood infection[1] and malnutrition caused by the negligent treatment and care of the defendants. The defendants presented evidence to the contrary tending to show that Edith Brooks was properly cared for and that her death resulted from other causes. One of the defendants' witnesses was Dr. Bonikowski, whose testimony was taken by deposition and read to the jury. During cross examination by plaintiff's counsel, the following transpired pertaining to Dr. Bonikowski's previous contacts with Roy Scholl, attorney for Dr. Lewis:
In Doe v. Eli Lilly & Co., 99 F.R.D. 126 (D.D.C.1983), the court, construing the Federal Rules of Civil Procedure, stated:
99 F.R.D. at 128.
Although the record in the present case is silent as to what, if any, information was actually exchanged between Dr. Bonikowski and counsel for Dr. Lewis during their conversations, presumably these contacts were for the purpose of ascertaining whether Dr. Bonikowski, in fact, had any information or opinions relevant to the case. The plaintiff's counsel was notified of and was in attendance at the taking of the doctor's deposition. Accordingly, we find no error on the part of the trial court in denying the plaintiff's pre-trial motion to exclude Dr. Bonikowski's testimony.[3]
*56 Another witness for the defendants was Dr. Jack Whites. The plaintiff contends that the trial court committed reversible error in allowing both Dr. Bonikowski and Dr. Whites to give their opinions as to the probable cause of Edith Brooks's death and the standard of treatment and care exercised by the defendants. She argues that no predicate was laid for the admission of either expert's testimony. Again, we disagree.
An expert witness may give opinion testimony based upon either facts of which he has personal knowledge or facts which are assumed in a hypothetical question. In either event, the facts known to the expert or hypothesized must be facts in evidence. Thompson v. Jarrell, 460 So. 2d 148 (Ala.1984). An expert witness giving an opinion upon facts of his own knowledge or based upon his own observations should first testify to those facts upon which his opinion is based, Alabama Power Co. v. Robinson, 447 So. 2d 148 (Ala.1983); but if the facts sought to be proved are such that they will be difficult of understanding and of little aid to the jury, the court may permit an expert on the subject, who has made an investigation, to give his opinion without giving the details on which the opinion is based. Malone-McConnell Real Estate Co. v. J.B. Simpson Audit Co., 197 Ala. 677, 73 So. 369 (1916).
Dr. Bonikowski was Edith Brooks's treating physician at UAB. He had personal knowledge of her overall condition, which he had observed and diagnosed while she was a patient there. On the basis of this knowledge, coupled with his review of her medical records[4] concerning her condition and the follow-up care which she received during the four months immediately preceding her death, he testified as follows:
"Q. Doctor, I wish you would tell me based upon your care and treatment of this lady, Mrs. Edith Brooks, what the probable cause of her death was. And if there are multiple causes tell us what those other probable causes would be, please.
"A. The probable cause of death of any patient who has had a ruptured Berry aneurysm would be a rebleeding of the Berry aneurysm.
"Q. Is that in the head, rebleeding in the head?
"A. Yes.
"Q. Is that, are you listing these as the most probable first, or how?
"A. Yes.
"Q. That would be the most probable cause of the death of Edith Brooks?
"A. The most probable cause of death in Mrs. Brooks would have been a rupture, a rebleed of the aneurysm that she had bled from in July.
"Q. Are there other probable causes of her death? If so, would you list them in their order of probability, please.
"A. The second most probable cause in a patient who's lying in bed for any length of time who has had a documented case of phlebitis, this lady had phlebitis in the legs and had been lying in bed for a long time not able to move in a normal fashion. The second most commonmost likelycause of death in this lady would have been a blood clot to her lung from her legs.
"Q. Is there a third probable cause?
"A. It's apparent from the chart that the patientwell, the patient also had known heart disease and she might have had, from her age, she might have had a myocardial infarction. She could have had a heart attack.
"Q. Would that be from the same condition that we discussed as being an arteriosclerotic heart?
"A. Yes.
"Q. Are there other probable causes, please sir? If you don't mind, list them in the order of probability.
"A. The patient had two other areas of infection that are common in patients who *57 have been sick for any length of time. She had an aspiration pneumonia, she had
"Q. What is that, please, sir?
"A. That means that in the course of her eating, because she was unable to swallow in a normal fashion, she had a tendency to have the food go down in through her windpipe into her lung and cause an infection. She had pneumonia that was documented on her X-rays when she went into Lloyd Noland Hospital, that was more on the right side. This is a typical pattern of infection that occurs in patients who are sick with chronic disease.
"Q. Was this the second Lloyd Noland hospitalization or the one after she was at Medicenter, right before she died?
"A. This is at the time just prior to her death.
"Q. Now, with an aspiration pneumonia, does it simply mean that the food instead of going down the throat to the stomach goes down the windpipe into the lungs and causes infection?
"A. That's right.
"Q. Is that what she had?
"A. She had an aspiration pneumonia.
"Q. Is that a fourth probable cause of her death?
"A. Yes, it is an additional possible cause of her death.
"Q. Are there others, please sir?
"A. This patient had a chronic anemia that we had evaluated while she was at the University. It was the type of anemia a low blood count that often goes with people who are sick for any length of time, and this anemia was relatively serious. She had, her hemoglobin level, was around 9 in July. At the time she went into Lloyd Noland Hospital, her hemoglobin was 6.
"Q. What's normal?
"A. 15.
"....
"Q. Let me discuss with you for just a minute, please, sir, the allegation made against the Defendants in this case that we, the doctors and nurses through their care or lack of the same, caused this lady to develop decubitus ulcers that caused her death. Do you have an opinion as to whether the decubitus ulcers which this lady developed in University Hospital and which she had at Medicenter, caused or contributed to cause her death?
"A. Yes, sir, I do.
"Q. Give me those opinions, please sir. You might relate it to the other causes that you've already talked about, please.
"A. Well, the situation is essentially that although Mrs. Brooks had decubitus ulcers, there's no question that she had the ulcers
"Q. That's right.
"A. That they are, it is unlikely that those ulcers were the cause of her death. That there was not evidence of suspended infection from the records. She did not have a fever, she did not have an elevation of the white count that would have been indications that the infection itself would have been the cause of her death. Secondly, she had two other sources of infection that could have caused death. She had a pneumonia and she had a urinary tract infection. Both of those were equally likely to have caused sepsis, or blood infection, poisoning of the blood, if you want to use a common term. In other words, the only way that the decubitus would have likely caused this lady's death would have been by infection getting into the bloodstream.
"Q. Is that what you refer to as sepsis?
"A. Sepsis, yes.
"Q. What is sepsis, please?
"A. That means organisms, bacteria getting into the bloodstream and causing shock and death. So that in order for a decubitus ulcer to cause death, you would have to have proof that there were organisms in this lady's bloodstream or that she had an elevation of temperature, or that she had an elevation of the white count to indicate that infection in fact caused death. [From] the record, there is no elevation of the white count ... and there was no fever. Instead, the patient entered the hospital *58 with obtundation [decreased responsiveness] and had an aneurysm and the other causes that were listed are much more likely to be causes for death. A rebleeding of an aneurysm, possibly of a blood clot to the lungs, the possibility of the anemia causing heart failure, causing a myocardial infarction, all are far more likely.
"Q. One last question, Dr. Bonikowski. Did Dr. Jerry Lewis, in your opinion, do anything to cause this woman's death, or fail to do anything that caused this woman's death?
"A. I don't believe so.
"Q. That's all I have. Thank you, sir.
"....
"Q. Doctor, my name is Billy Bates. I represent Medicenter. I take it in preparing for your deposition, you had a chance to review the records on Mrs. Brooks that were kept by Medicenter.
"A. Yes, I have.
"Q. And, after reviewing those records, do you have any criticism of the treatment of Mrs. Brooks by Medicenter?
"A. I don't have a specific criticism. I believe that as well as I could determine, that is without my being able to observe, so that you're asking me that by looking at the records, whether I can tell whether anything was done. All I can say is that the patient received the usual care for bedsores. She had bedsores. They obviously got worse. In the course of her getting worse, the proper management would be to clean them and to take away the dead tissue and to try to promote healing, and also to keep pressure off them. You can do that very easily with a normal patient and a person who is cooperative and alert, but, in patients who are not cooperative, who are unable to understand or to do what is asked, it becomes very difficult, and it would appear that, you know, my understanding was that the patient received padding; that she was turned; the wounds were cleansed, and that she actually received antibiotics.
"Q. In your opinion, did Medicenter do anything or fail to do anything which contributed [to] or caused Mrs. Brooks's death?
"A. Well, I have already stated that it's my opinion that the decubiti were not primarily related to her death.
"Q. So would your answer to the question then be no?
"A. No."
Dr. Bonikowski's opinions were based upon his personal knowledge of the facts which were clearly stated in his testimony, and there was no error in their admission.
Dr. Whites testified as follows:
"Q. Dr. Whites, assuming that you have a 77-year-old female who has a broken hip; who's disoriented, unresponsive, unaware of her surroundings, unrehabilitatable; who has a bedsore or hole on her sacrum when admitted; flexer contractions of the hip and knee; physical therapy did not help; blood clots in both legs, combative, not a candidate for surgery, dehydrated, urinary tract infection, heart disease, organic brain syndrome, and an unclipped Berry aneurysm.
"Assuming those facts and all the facts that you are able to glean from the records, and your training as a doctor, I want to talk about whether you have an opinion as to more probable causes of death than malnutrition, or generalized septic infection. And I'll ask you first rebleed for an aneurysm. Is that a more probable cause of death under those circumstances or not?
"A. That's one of theto me that is one of the three most probable causes.
"Q. What's the next one in your judgment?
"A. Pulmonary thromboembolism or aspiration pneumonia.
"Q. In that order?
"A. Any order, it doesn't make any difference.
"Q. Would each of these be more likely the cause of death than the malnutrition, the low protein, the low albumin?
*59 "A. I think any of those would be a more likely cause of death, yes.
"Q. Could the arteriosclerotic heart also be a more probable cause of death?
"A. It could be.
"Q. No way to know about that one, is there, without an autopsy?
"A. That's right.
"Q. Doctor, was there some point in time during the history of this lady's unfortunate medical problems where the future could be predicted, or did you form a prognosis as to how she was going to do?
"A. As I remember the record, when she presented initially, on the initial record at Lloyd Noland, they discussed or they mentioned organic brain syndrome, confusion and so forth.
"Q. Is it back in here (indicating)?
"A. Back with the pneumonia, uh-huh.
"Q. Okay.
"A. And that was mentioned the next time when she had the fracture. I think once she had the CVA, or the rupture of the Berry aneurysm in July, it was that, you know, that the future was, you know, fairly predictable over what was going to happen over the next several months to a year.
"Q. And did that happen?
"A. Yes, pretty much.
"Q. She just continued to go downhill and just die?
"A. Yes, a few months later, yes.
"Q. So, right here (indicating), you had a pretty predictable outcome of this patient; is that right?
"A. At that point, you're able to give the family a prognosis, I think.
"Q. Which was not good, was it?
"A. It was not good.
"Q. Do these things happen in patients that are like this in a nursing home?
"A. Yes, we've all seen those. You know you have basically a patient who is going to deteriorate mentally, and with mental deterioration goes physical deterioration frequently. And, you know, each insult just adds another level of stress.
"With the aneurysm, it's, you know, predictable, fairly predictable. I don't know the exact statistics, but, once you rupture an aneurysm, if it's not amenable to surgery and you can't take that out of the circulation by clipping or tying it off, a large percentage will rebleed fairly soon, you know, within a year or so. And I think that's the prognosis you can give a family.
"Q. Do some patients, particularly like I've hypothesized here to you, get decubitus ulcers in spite of the best care that can be given to them?
"A. Yes.
"....
"Q.... Now, let me ask you this: You've reviewed the Medicenter chart, have you not, sir?
"A. Yes.
"Q. And are you familiar with the care, the general standard of care, that was applicable to nursing homes in 1977?
"A. I believe so.
"Q. All right, based upon your review of the records [of the Medicenter nursing charts], do you have any criticisms of the care given by Medicenter to Mrs. Brooks?
Again, there was no error in the trial court's admission of this testimony. Dr. Whites's opinion as to the probable cause of Edith Brooks's death was based upon the hypothetical and his review of her medical records, the pertinent portions of which were stated in his testimony. Furthermore, based upon his familiarity with the general standard of care applicable to facilities such as Medicenter, his testimony that he had no criticism of the care provided by Medicenter to Edith Brooks was not objectionable. The medical records upon *60 which his opinions were based were admitted into evidence. A restatement by the witness of the content of those records would have been time consuming and of little aid to the jury.
Thompson v. Jarrell, supra, cited by the plaintiff as standing for the proposition that a physician's review of the medical records is insufficient to permit him to give an opinion in the absence of a stated hypothetical, is factually distinguishable. In that case, contrary to the present case, it was not clear from the record whether the medical reports examined by the testifying physician contained sufficient information upon which his opinion could be based, and the Court noted that he did not state any supporting facts during his testimony.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
[1] The plaintiff claimed that the defendants allowed Edith Brooks to develop decubitus ulcers (bedsores), which ultimately became infected and led to septicemia, a severe generalized or systemic bloodstream infection.
[2] There is no testimonial privilege in Alabama covering communications between a physician and his patient or the physician's knowledge of the patient's condition acquired by reason of the relationship. C. Gamble, McElroy's Alabama Evidence § 413.01 (3d ed. 1977), citing Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973); Gulledge v. Mitchell, 242 Ala. 342, 6 So. 2d 22 (1942); Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941); Beecher v. State, 288 Ala. 1, 256 So. 2d 154, rev'd, 408 U.S. 234, 92 S. Ct. 2282, 33 L. Ed. 2d 317 (1972); Annot., 7 A.L.R.3d 1458 (1966). See Also Mull v. String, 448 So. 2d 952 (1984).
[3] In each of those cases cited to us by the plaintiff as being in support of her contention, the court's condemnation and restriction of informal attorney-physician communications contain a similar rationalethe pre-eminence of the patient's privacy interest is buttressed upon the presence of a statutory physician-patient testimonial privilege and/or coercive or improper conduct on the part of defense attorneys seeking disclosure of confidential information from the patient's physician via private interviews outside conventional discovery procedures. See Alexander v. Knight, 197 Pa.Super. 79, 177 A.2d 142 (1962); Anker v. Brodnitz, 98 Misc.2d 148, 413 N.Y.S.2d 582 (1979); Hammonds v. Aetna Casualty and Surety Co., 243 F. Supp. 793 (N.D.Ohio 1965); Piller v. Kovarsky, 194 N.J.Super. 392, 476 A.2d 1279 (1984); Garner v. Ford Motor Co., 61 F.R.D. 22 (D.Alaska 1973); Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333 (1976); and Miles v. Farrell, 549 F. Supp. 82 (N.D.Ill. 1982). There are no allegations of coercion or impropriety in the present case.
[4] These medical records were admitted into evidence. | August 30, 1985 |
5ee2a7fa-7dbe-43b7-bc2d-7f8221935d02 | Seaboard Coast Line R. Co. v. Moore | 479 So. 2d 1131 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1131 (1985)
SEABOARD COAST LINE RAILROAD CO.
v.
Lewis MOORE.
83-496.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied November 8, 1985.
*1133 Walter R. Byars and Wanda D. Devereaux of Steiner, Crum & Baker, Montgomery, for appellant.
Kerry R. McDonald, Atlanta, Ga., and Fred D. Gray of Gray, Langford, Sapp, Davis & McGowan, Tuskegee, for appellee.
PER CURIAM.
This is an appeal from a judgment for the plaintiff, a railroad employee, in an action under the Federal Employees Liability Act (FELA).
Lewis Moore, employed by Seaboard on a rail gang in North, South Carolina, brought suit against Seaboard for an alleged on-thejob back injury, which he claims occurred on August 25, 1980. Moore filed suit in the Circuit Court of Macon County, Alabama, under the FELA. The case was tried before a jury, which returned a verdict for Moore in the amount of $200,107.50.
The following represents Moore's account of his injury: On the morning of the accident Moore was instructed by Assistant Foreman Terry Williams to load two large switchplates, weighing from 150 to 200 pounds each, onto the back of a truck near the campsite. He asked Assistant Foreman Williams for help in loading the plates, but was refused. Moore testified that because a ditch separated the truck and the plates, he was unable to back the truck up to the plates. Consequently, he said, he had to drag the plates some 90 to 100 feet across the ditch to the truck and in doing so sustained the back injury.
Moore's complaint made the following allegations of negligence against Seaboard:
Appellant, Seaboard Coast Line Railroad Co. (Seaboard), raises four issues on appeal: 1) that the evidence was insufficient to create a jury question or to support the verdict returned by the jury, 2) that the jury verdict was excessive, resulted from bias, prejudice, and passion, and deprived Seaboard of its property without due process of law, 3) that the verdict was the product of fraud, and 4) that the trial court erred by deleting the word "proximate" from its charges and by refusing to give defendant's requested charge.
The "correctness" of a ruling on a directed verdict motion in an FELA case is a question of federal law. Brady v. Southern Ry. Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239 (1943):
Id., at 479, 480, 64 S. Ct. 234, 235. In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506-09 (1957), the Supreme Court further explained the test and the reasons for it:
Guided by this standard, we hold that there was no error in submitting the claim to the jury. Moore testified that he asked for help in moving the heavy plates, that Williams did not provide any help at that time, and that as a result he injured his back while attempting to move the plates. While Moore's credibility was put at issue, and his version of the incident disputed by other witnesses, the only question is whether there is some evidence that Seaboard's "negligence played any part, even the slightest, in producing the injury."
*1135 Furthermore, we find no error in the denial of the motion for new trial based upon a claimed insufficiency of the evidence.
Lavender v. Kurn, 327 U.S. 645, 653, 66 S. Ct. 740, 744, 90 L. Ed. 916 (1946). As previously noted, the evidence was in conflict. Seaboard's principal argument is that photographs of the scene of the incident completely refute Moore's testimony concerning the existence of a ditch or slope through which Moore was forced to drag the plates. The photographs were taken about two years after the incident. Witnesses differed in their opinions as to whether the photographs depicted the scene as it existed at the time Moore was injured.
More importantly, Moore's case did not rest solely on the existence of the ditch or slope. Moore claimed Seaboard was negligent in failing to supply him with adequate help to lift the plates. It is undisputed that more than one person is needed to lift the heavy plates. Moore claimed that he asked his foreman, Williams, for help and that Williams refused. Jerome Beasley overheard part of the conversation between Moore and Williams and confirmed Moore's account of that conversation. Williams contends that he told Moore to have James Woodard help him load the plates. Woodard's testimony supports Williams's testimony. As there is an evidentiary basis for the jury's verdict, it is "immaterial that the [reviewing] court might draw a contrary inference or feel that another conclusion is more reasonable."
We also note that there was conflicting medical evidence as to whether in fact Moore was injured. Moore went to see several doctors. All except Dr. Kay found no reason to perform surgery. No doctor definitively said that Moore had received no injury, only that they found no medical basis to support Moore's complaints. Dr. Kay did perform surgery and removed a disc from Moore's spinal column. Moore testified that the treatment before surgery did not alleviate the pain in his back but that after surgery he felt "way better." Again, there was an evidentiary basis for the jury's determination that Moore was injured and, therefore, there was no error in denying the motion for new trial because of a claimed insufficiency of the evidence.
The basis of Seaboard's claim that the verdict was excessive, resulting from bias, prejudice, and passion, is Seaboard's contention that plaintiff's counsel attempted to reap the benefits of racial prejudice.
Under the provisions of the FELA, the suit could be brought in Macon County because Seaboard did business there. Seaboard contends it was brought there so that an all-black jury would hear the black plaintiff's case. We acknowledge that the incident which gave rise to this action took place in another state, that no witnesses reside in Macon County, and that the parties had no prior relevant contact with Macon County other than the fact that Seaboard did do business there. However, the fact that an all-black jury heard the case does not of itself show an attempt to appeal to racial prejudice. Seaboard makes a strong argument that Macon County is not the proper forum, but this Court has not seen fit to adopt the doctrine of forum non *1136 conveniens; see Central of Georgia Railway Co. v. Phillips, 286 Ala. 365, 240 So. 2d 118 (1970).
Seaboard contends that the crossexamination by Moore's counsel of Williams and the closing argument by Moore's counsel attempted to show racial discrimination on the part of Seaboard, in an attempt to improperly influence the jury. With regard to the cross-examination of Williams, the questions by Moore's counsel were not improper. Factual issues existed as to the circumstances under which Moore was assigned to Williams's crew and about Williams's qualifications and experience as a supervisor. The cross-examination elicited information relevant to the resolution of those issues.
Counsel can state or comment on all proper inferences from the evidence and draw conclusions based on the evidence. Calloway v. Lemley, 382 So. 2d 540 (Ala. 1980). The standard of review by this Court on claims of improper argument is that we will not reverse unless substantial prejudice has resulted, and there is a presumption in favor of the trial court's rulings. Central of Georgia Railway Co., supra. After carefully reviewing the closing arguments, we find no reversible error. We note that Mr. Gray, one of Moore's attorneys, did preface several of his statements with the words "I believe." Stating an opinion or belief as to the evidence is improper. 88 C.J.S. Trials § 182 (1955). However, the trial court did admonish the jury not to weigh Mr. Gray's beliefs in resolving the case.
Seaboard contends that the verdict was the product of fraud, because Moore's counsel implied that Seaboard persuaded witness Woodard to change his testimony. There is some conflict as to whose witness Woodard was, and how he was notified to appear at the trial. It is undisputed that Woodard rode to Macon County from North Carolina with Moore and that after arriving in Macon County and speaking with Moore's counsel he was summoned by Seaboard's counsel to Montgomery and remained in Montgomery until trial. There was testimony that Woodard told one version of the incident involving Moore on the trip from North Carolina to Alabama and a different version at trial. Under these facts we find no error in Moore's argument concerning Woodard's alleged change in testimony.
Seaboard also contends it was error to refuse to give defendant's charges one, twenty-nine, and forty. The trial court's charge included statements virtually indentical to the requested charges, except that the trial court deleted the word "proximate" from those portions of the charges dealing with causation.
The issue then is whether under the FELA the railroad's negligence must be the "cause" or the "proximate cause" of the worker's injuries. The uncertainty surrounding the proper test of causation in FELA cases is pointed out in the following annotation:
Annot., 98 A.L.R.2d 657, at 658-59, (1964).
This Court has recognized that Rogers did not actually consider how the court should instruct the jury as to the issue of causation. Salotti v. Seaboard Coast Line Railroad Co., 293 Ala. 1, 299 So. 2d 695 (1974). However, the language from Rogers quoted in part I of this opinion is quite revealing: "The law was enacted because Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence." Rogers, 352 U.S. at 507, 77 S. Ct. at 448-49.
In Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 824 (5th Cir.1965), the court discussed the propriety of a proximate cause charge in FELA cases:
In Page the court used the word "proximate cause" in its charge, but defined the term as follows: "As the term `proximate cause' is used in this charge, I instruct you that an injury is proximately caused by an act or omission when it appears the act or omission played any part, no matter how small, in actually bringing about or causing the injury." Id., at n. 3.
We find that it was not error to delete the word "proximate" from defendant's requested charges. The charges as given by the trial court accurately stated the law as to the test of causation under the FELA. We should not be understood as saying that it would have been error to insert the word "proximate" into the charge, but only that under these circumstances there was no reversible error in deleting the word from the charge.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. | August 30, 1985 |
a0e44884-af17-4f6e-b8c1-83f9d7059cad | Calogrides v. City of Mobile | 475 So. 2d 560 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 560 (1985)
John M. CALOGRIDES
v.
CITY OF MOBILE.
84-417.
Supreme Court of Alabama.
August 23, 1985.
*561 Bob Sherling of Drinkard & Sherling, Mobile, for appellant.
James B. Rossler of Stout & Roebuck, Mobile, for appellee.
SHORES, Justice.
The appellant attended a fireworks display sponsored in part by the City of Mobile at Ladd Memorial Stadium on July 3, 1982. After he arrived and as he was walking up the stadium ramp to find a seat, he was assaulted by a group of five or six teenage males. He was stabbed a number of times. Eighty-two police officers were assigned to Ladd Stadium for the fireworks display.
The appellant brought suit against the City of Mobile, alleging that the City:
The trial court granted the City's motion for summary judgment, and this appeal followed. We affirm.
In Rich v. City of Mobile, 410 So. 2d 385, 387 (Ala.1982), the Court held that public policy considerations prevent the imposition of a duty on a city, the breach of which would impose tort liability to a person "in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services." The opinion acknowledged the lack of clarity of the rule there expressed, reserving for a later day the development of the rule, characterized as the substantive immunity rule. Whatever its perimeters, the rule recognizes that a city's obligation to provide for the public health, safety, and general welfare of its citizens is paramount and that the imposition of liability to particular individuals in certain circumstances would necessarily threaten the benefits of certain services to the public at large. We hold that this is such a case.
Other jurisdictions have held that a municipality is not liable for this failure to provide police protection. See: Wuethrich v. Delia, 155 N.J.Super. 324, 326, 382 A.2d 929, 930 (1978), holding that "a public entity such as a municipality is not liable in tort for its failure to protect against the criminal propensity of third persons"; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, 256 N.Y.S.2d 595, 596, 204 N.E.2d 635, 636 (1965), stating, "The rule is that, independent of sovereign immunity, a municipality is not liable for failure to supply general police ... protection [to the public]." See also 18 McQuillin The Law of Municipal Corporations § 53.51 (3d ed. 1984), stating, "[T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city."
*562 The thrust of the appellant's claim is that the City was negligent in making its decision to deploy only eighty-two police officers to Ladd Stadium on the occasion of his injury. Liability cannot be predicated on this basis. Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968), dealt with a claim of negligence in refusing to furnish police protection to the plaintiff upon request. The court affirmed the dismissal of her complaint, saying:
22 N.Y.2d at 582-83, 293 N.Y.S.2d 897-898, 240 N.E.2d at 860-61.
As we noted in Berdeaux v. City National Bank of Birmingham, 424 So. 2d 594, 595 (Ala.1982):
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | August 23, 1985 |
60ae0a33-8846-4f8d-abfd-cc15d3e63913 | Kaller v. Rigdon | 480 So. 2d 536 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 536 (1985)
Eugenia KALLER, a minor, By and Through her court appointed Guardian Ad Litem Don CONWAY
v.
James R. RIGDON.
84-165.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied November 15, 1985.
*537 Don Conway, Mobile, for appellant.
Donald G. Beebe of Newton & Beebe, Mobile, for appellee.
*538 EMBRY, Justice.
The will of Johnnie Mae Brewer Bush was offered for probate by her executrix but was contested by Eugenia Kaller, her granddaughter. Upon motion of James Rigdon, the proponent of the will, the case was transferred to circuit court for jury trial. From a verdict upholding the validity of the will, Kaller appeals. We reverse and remand.
Mrs. Bush died on 29 April 1983. Her will provided legacies for five brothers and sisters and for the children of her deceased brother. The children of her deceased daughter, however, were specifically left out of the will. One of those unprovided-for children was Eugenia Kaller.
Kaller, a minor, acting through her court appointed guardian ad litem, filed a contest to the will on 10 October 1983, the same day the will was submitted for probate. In the ensuing months, the proponent of the will filed several papers relating to the contest, including a consent to appointment of an administrator ad colligendum on 1 November 1983, and a motion to add Kaller's father as a real party in interest on 5 January 1984; however, he never filed a responsive pleading.
On 10 February 1984, the Friday before the case was to be tried on the following Monday in probate court, the proponent filed a motion to transfer the contest to the circuit court. No other pleading or paper was filed with this motion. The probate court granted the motion. At trial, the jury decided the will was valid. Kaller filed a motion to remand to the probate court for lack of jurisdiction. Both motions were denied. This appeal followed.
In Alabama, the statute granting the right of the circuit court to hear will contests, Code 1975, § 43-8-198, reads as follows:
The jurisdiction conferred on the circuit court by this section of the Code is a statutory and limited jurisdiction. Ex parte Pearson, 241 Ala. 467, 3 So. 2d 5 (1941). Because will contest jurisdiction is statutorily conferred, the procedural requirements of the applicable statute must be complied with exactly. Simpson v. Jones, 460 So. 2d 1282 (Ala.1984). Section 43-8-198 mandates that, in order to transfer to the circuit court a valid contest of a will not yet admitted to probate, and thereby to confer proper jurisdiction upon the circuit court, a party must demand transfer at the time he files his initial pleading. Baker v. Bain, 237 Ala. 618, 188 So. 681 (1939).
Although Kaller offers several grounds of error for review, the one dispositive issue in this case is whether a motion to transfer a will contest filed by the proponent of a will without support of a responsive pleading can be regarded as a demand "made at the time of filing [his] initial pleading" for purposes of § 43-8-198. We find that it cannot be so regarded.
Rule 7(a), ARCP, explains the nature of the term "pleading": "There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed." A motion, defined in Rule 7(b), ARCP, as "an application to the court for an order," is not a pleading. Therefore, although he filed motions and papers with regard to the contest, because the proponent did not file a pleading at the same time he filed the motion to transfer, he did not comply with the procedures mandated by the statute. Since the statute was not exactly complied with, the circuit court lacked jurisdiction to try the contest.
The proponent of a will files a pleading when he files the petition for probate of the will. However, this pleading *539 cannot serve as a proponent's "initial pleading" for purposes of § 43-8-198. Were it to be so regarded, a proponent would never have an opportunity to transfer a will contest, since at the time he files a petition for probate no will contest has yet been filed. This court has held there must be a valid will contest pending in the probate court before the probate judge can transfer the contest to the circuit court. Nottage v. Jones, 388 So. 2d 923 (Ala.1980). But § 43-8-198 states that a will contest must be transferred upon timely demand of any party to the contest; clearly, the legislature did not intend to deprive the proponent of a will the same opportunity to demand transfer of a will contest as that given to the contestant of a will. Logically then, the "initial pleading" for the proponent of a will must be the first responsive pleading after a will contest has been filed.
The "initial pleading" for the contestant in a will contest is the filing of the contest itself in the probate court. See Summerhill v. Craft, 425 So. 2d 1055 (Ala. 1982). This initial pleading is in the nature of a complaint. Hence, the proponent of a will must file an answer as his responsive pleading to that complaint. Since this is his initial pleading in the will contest, a proponent can only make a motion to transfer when he files an answer. In the instant case, the proponent did not file an answer; his motion to transfer should have been denied.
The proponent in the instant case, citing Thigpen v. Walker, 251 Ala. 426, 37 So. 2d 923 (1948), contends this court has held only one requirement necessary to endow a circuit court with jurisdiction over a will contest, that being the requirement of a pending valid will contest in the probate court.
But Thigpen does not stand for this proposition. A pending will contest is a basic requirement for circuit court jurisdiction, but it is not the only requirement. Section 43-8-198 is a jurisdiction statute, and its writ must be followed to the letter. Simpson v. Jones, supra.
Another argument made by the proponent is that § 43-8-198 requires the following interpretation: if a motion to transfer is filed with the initial pleading, then the probate court must transfer the case; but the probate court on its own initiative or at the request of a party may transfer the case at any later time.
We find no merit in this argument. The jurisdiction of both the probate court and the circuit court over will contests is statutory and limited. Ex parte Stephens, 259 Ala. 361, 66 So. 2d 901 (1953). The only jurisdiction a court can take over such cases is that granted by statute. A court cannot depart from the procedures delineated in the statute and still retain jurisdiction. As § 43-8-198 provides for transfer only upon demand made in writing by a party at the time he files his initial pleading, this is the procedure which must be followed. The language of the statute is mandatory. Summerhill v. Craft, supra, at 1056.
Finally, the proponent argues that because no objection was made to the transfer until after the jury verdict, Kaller waived any objection to the transfer. Again, proponent's argument fails to persuade; a circuit court's lack of jurisdiction over a will contest can be raised at any time. Forrester v. Putman, 409 So. 2d 773 (Ala.1981).
In conclusion, we find the circuit court lacked jurisdiction over the instant case because the proponent of the will failed to file his motion to transfer at the time of filing his initial pleading. Consequently, the jury verdict sustaining the validity of the will is void. We reverse the judgment below and remand this case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER and ALMON, JJ., concur.
ADAMS, J., concurs in result. | August 30, 1985 |
fe3e95a6-056c-4157-bb0a-4edfe34877ae | Harris v. Pinelog Properties, Inc. | 474 So. 2d 1113 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1113 (1985)
Charles William HARRIS
v.
PINELOG PROPERTIES, INC.
84-345.
Supreme Court of Alabama.
August 2, 1985.
Ronnie L. Williams, Mobile, for appellant.
James R. Owen of Owen, Ball & Simon, Bay Minette, for appellee.
ADAMS, Justice.
Defendant Charles Harris appeals from the Baldwin County Circuit Court's judgment wherein the court held that Pinelog Properties, Inc., owned a fee simple title to approximately ten acres of land. We affirm.
Briefly, the facts of this case are as follows:
George P. Woolf testified at trial that he purchased the ten acres of land which is the subject of this action in 1962, and immediately *1114 thereafter went into possession of the property, cut timber himself and allowed M.D. Cox Timber Company to cut timber on the property. According to Woolf, Carey Harris cut timber for him in 1973 and 1977. Woolf leased the property to A.G. Moore for hunting purposes in 1972, and Moore hunted on the property nearly every weekend during hunting season from 1972 until Woolf sold the property to Pinelog Properties, Inc. Moore had also planted food crops and placed tree stands on the property.
Woolf assessed and paid taxes on the property from 1962 until 1983, and he also leased the property for oil, gas, and mineral purposes twice during that period. In 1983, Woolf sold the ten acres of wild, uncultivated land to Odell Robinson as president of Pinelog Properties, Inc. On September 15, 1983, Pinelog filed an action to quiet title to the ten-acre tract. The case was tried to the court sitting without a jury on November 6, 1984, and the court made the following findings of fact:
Harris appeals from this judgment, arguing that the acts of ownership on the part of Woolf are just the type of sporadic acts this Court has held are insufficient to show adverse possession. Harris maintains that Pinelog failed to meet its burden of proving that Woolf was the exclusive owner of the property and that no one else exercised any control over the property. Moreover, Harris *1115 contends that he and his family engaged in activities which evidenced their possession of the property, such as leasing the property for hunting purposes and burying deceased family members on the land.
In Thomas v. Davis, 410 So. 2d 889 (Ala. 1982), we discussed the standard of review to be used in a case like the one sub judice, stating:
410 So. 2d at 892.
Therefore, the dispositive issue on appeal is whether the trial court's findings were clearly erroneous or manifestly unjust, thus requiring a reversal.
In this case, it appears that Woolf indeed engaged in activities which were sufficient to establish his claim of ownership of the property. In Hand v. Stanard, 392 So. 2d 1157 (Ala.1980), this Court stated:
392 So. 2d at 1160. Also, as this Court stated in Smith v. Cook, 220 Ala. 338, 124 So. 898 (1929):
220 Ala. at 341, 124 So. at 900.
We are of the opinion that there is credible evidence to support the trial court's resolution of this case. The land in question is uncultivated, and only suitable for hunting, raising animals, and for planting some crops. From 1962 until 1983, timber was cut five times on the property. R.L. Cox testified that timber is usually cut from property like this every ten or twelve years. In addition to cutting timber, Woolf, Pinelog's predecessor in title, paid the taxes on the property for over twenty years, and leased the property for hunting, as well as for oil, gas, and mineral purposes. These actions of Woolf were clearly those of an owner of property.
Harris also argues that Woolf's possession was not exclusive, as members of his family are buried on the land. The trial court took this into consideration, and severed *1116 the part of the property which serves as a cemetery from the ten-acre tract. Defendant, Charles Harris, has failed to prove that the trial court's findings were clearly erroneous or manifestly unjust. Therefore, and in accordance with Thomas v. Davis, supra, the judgment of the trial court is affirmed.
AFFIRMED.
FAULKNER, JONES, ALMON and SHORES, JJ., concur. | August 2, 1985 |
d8a523b2-fd1e-4052-84f4-d17d8610b5aa | Smith v. Smith | 482 So. 2d 1161 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 1161 (1985)
Ray O. SMITH
v.
Kenneth SMITH, Diane Anderson and Faye Drew.
83-1404.
Supreme Court of Alabama.
August 2, 1985.
Rehearing Denied January 17, 1986.
W.E. Garrett, Atmore, for appellant.
J. Milton Coxwell, Jr. of Coxwell & Coxwell, Monroeville, for appellees.
ADAMS, Justice.
This appeal arises out of a will contest in the Circuit Court of Monroe County, wherein the jury found that the proponent of the will, Ray O. Smith, had exerted undue influence over the testatrix, Zadie Smith, and, therefore, that the instrument was not her last will and testament. We reverse and remand.
Zadie Smith lived with her brother Ezra Smith in Mexia, Alabama. Much of Zadie's adult life was dedicated to the care of her brother Ezra. According to the testimony at trial, Zadie did not drive, so her brother Bernie Smith bought her groceries, drove her places when she had business to attend to, and generally assisted her in any way possible. Bernie died in May of 1972. Ray O. Smith, Zadie's nephew, had been cutting the grass for Zadie before Bernie died, and, subsequent to Bernie's death, Ray began to stop by regularly, on Tuesdays and Fridays, to help Zadie and Ezra. He bought their groceries, chopped wood, and drove Zadie around, as Bernie had done.
On August 1, 1972, Zadie went to Monroeville to see Attorney Wendel C. Owens *1162 about the preparation of her will. Owens drew up the will, and Zadie went over it and signed it. In the will, Zadie directed that her estate go to Ezra, but that if he should predecease her, then the estate was to go to her nephew, Ray O. Smith. Zadie gave the will to Ray and told him to put it away for safe keeping.
Some time after the execution of the will, Zadie added Ray's name to her bank accounts. After Ray got her house wired for electricity, Zadie gave Ray money to pay the electric bills.
Ezra died in 1980, and some time thereafter Zadie went to live with Ray and his wife in Goodway, Alabama. Zadie lived with Ray until her death on July 14, 1983.
Ray Smith offered the will for probate on July 20, 1983, in the office of the Probate Judge of Monroe County. The contestants, appellees herein, filed a contest, alleging faulty execution, lack of testamentary capacity, and undue influence on the part of Ray Smith. The contest was transferred to the Circuit Court of Monroe County, where summary judgment was entered in favor of Ray Smith with regard to the faulty execution and mental capacity issues, and the case was tried solely on the undue influence issue. Counsel for proponent Ray Smith made a motion for a directed verdict at the close of all the evidence, which was denied by the court, and the case went to the jury. The jury returned a verdict which stated that the instrument was not the last will and testament of Zadie Smith. Proponent filed this appeal after his motion for judgment notwithstanding the verdict was denied.
The only issue for our review is whether there was sufficient evidence of undue influence to allow the court to deny proponent's motion for directed verdict and submit the case to the jury.
Regarding will contests, this Court has stated that, in order to survive a motion for a directed verdict, the contestant must present a scintilla of evidence that the favored beneficiary was unduly active in procuring the will. Rule 50(e), A.R.Civ.P., Bardin v. Jones, 371 So. 2d 23 (Ala.1979); Rabon v. Rabon, 360 So. 2d 971 (Ala.1978). In Arrington v. Working Woman's Home, 368 So. 2d 851 (Ala.1979), this Court stated further that:
368 So. 2d at 854.
This precise issue was addressed by this Court in Jackson v. Davis, 398 So. 2d 242 (Ala.1981), wherein we were presented with facts remarkably similar to those in the instant case. In Jackson, the testator had been living with his brother, Alton Davis, until early July 1978, at which time he moved in with his sister Irene and her husband. Irene cared for him, buying his food, cooking for him, feeding him, doing his laundry, and tending to his personal needs. She also arranged for his transportation when necessary. Although his physical condition was weakened due to lung cancer, there was testimony that this did not affect his mind; that he knew what he wanted and was determined to get it; and that his mind was "very good" at the time the will was executed. He signed the will in August of 1978, nine days before he died. Irene testified that he had told her that he intended to re-write his will in her favor out of gratitude for her help and care. The widow of the testator's deceased brother testified that, sometime during the summer of 1978, she heard Irene ask the testator if he was "going to do what he said he was going to do," to which he responded in the affirmative, collected some papers, and left.
After the court denied Irene's motion for a directed verdict, it submitted the case to the jury, with the only issue being whether Irene had exerted undue influence over the testator. The jury returned a verdict against Irene, and we reversed and remanded, stating:
343 So. 2d at 499.
398 So. 2d at 243-44.
Ray Smith assisted Zadie Smith in much the same way that Irene assisted the testator in Jackson, although not to the same extent. This case is like Jackson: although there might have been an opportunity for Ray to attempt to destroy Zadie's free will, there was no proof that he actually influenced her, or even made an attempt to influence her. Contestants could only offer a statement allegedly made by Zadie to a family member that she had not left her estate to Ray, but had made him the administrator. Arguably, this statement could give rise to a suspicion that Ray had some involvement in procuring the will; a mere suspicion is not enough to warrant a finding of undue influence. Arrington, supra. There has been no showing by contestants that Ray Smith's actions were anything but those of a caring relative who took the place of another caring relative who had died.
*1164 Whether there was undue influence exerted over the testator by a favored beneficiary often hinges on the third element of the test enunciated in Pruitt v. Pruitt, namely, whether there was undue activity in procuring the execution of the will. Rabon v. Rabon, supra; Windham v. Pope, 474 So. 2d 1075 (Ala.1985). In the case before us, contestants have not presented any evidence tending to show that Ray Smith destroyed the free will of the testatrix and substituted his wishes for hers. Moreover, they have failed to offer even a scintilla of evidence that Ray Smith had any involvement with the will, or had any discussions with Zadie Smith about the will until after its execution.
In support of their argument that the trial court was correct in submitting the undue influence issue to the jury, contestants cite Posey v. Donaldson, 189 Ala. 366, 66 So. 662 (1914), and Raney v. Raney, 216 Ala. 30, 112 So. 313 (1927). We are of the opinion that contestants' reliance on these cases in this instance is misplaced. Raney stands for the proposition that, in order to establish undue influence, one need not show activity in the procurement or execution of the will, i.e., employing the attorney, dictating the terms, typing the will or witnessing its execution. Indeed, this Court is in agreement with the holding in Raney; however, that holding does not in any way affect our resolution of the case sub judice. Posey is cited for the proposition that the jury can draw a rational inference from the surrounding circumstances that there was undue influence. The facts in Posey were these:
189 Ala. 366 at 368-69, 66 So. 662 at 663. This Court held that, based on all of these facts, the jury might have been able to draw a rational inference that the testator was unduly influenced in the making of his will. The circumstances in Posey are so dissimilar from those presently before us that we are of the opinion that Posey is of little precedential value in the present case. The facts of the instant case would in no way permit a jury to infer that Ray Smith had anything to do with unduly influencing Zadie Smith in the execution of her will. Therefore, the Court erred when it submitted the undue influence issue to the jury.
For all of the above-stated reasons, the judgment of the trial court is reversed, and the cause remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
FAULKNER, JONES, ALMON and SHORES, JJ., concur. | August 2, 1985 |
f1382117-cf96-4941-abfe-14a32de07f42 | Ex Parte Beck | 485 So. 2d 1207 | N/A | Alabama | Alabama Supreme Court | 485 So. 2d 1207 (1985)
Ex parte Gilbert Franklin BECK.
(Re Gilbert Franklin Beck v. State of Alabama).
83-1198.
Supreme Court of Alabama.
August 23, 1985.
*1208 Julian L. McPhillips, Jr. of McPhillips & DeBardelaben, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
This is a capital murder case.
In 1977, Gilbert Franklin Beck was convicted of capital murder, Code 1975, § 13-11-2(a)(2), in Etowah County, sentenced to die. His conviction was affirmed by the Alabama Court of Criminal Appeals, Beck v. State, 365 So. 2d 985 (Ala.Crim.App. 1978), and by this Court, Ex parte Beck, 365 So. 2d 1006 (Ala.1978); however, his conviction was overturned by the United States Supreme Court, Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), which held the "preclusion clause" of the Alabama Death Penalty Act to be unconstitutional. Based upon the Supreme Court's decision, this Court held that the legislature intended to pass a constitutional act, and that the preclusion clause could be severed from the Death Penalty Act. Based upon that reasoning, this Court reversed and remanded Beck's case to the Court of Criminal Appeals, Beck v. State, 396 So. 2d 645 (Ala.1981) [hereinafter cited as Beck II], which, in turn, reversed and remanded the case to the Circuit Court of Etowah County for new trial, Beck v. State, 396 So. 2d 666 (Ala.Crim.App.1981). Upon retrial, Beck was again convicted and sentenced to die. He again appealed to the Court of Criminal Appeals, claiming that his sentence of death should be vacated; the Court of Criminal Appeals agreed, and remanded his case to the trial court for a hearing to determine whether another retrial should be conducted based upon the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Beck v. State, 485 So. 2d 1196 (Ala. Crim.App.1982). After receiving a record of that hearing, the Court of Criminal Appeals, holding that a "Witherspoon error" did occur at Beck's first retrial, reversed and remanded. Beck v. State, [MS. 7 Div. 909, March 1, 1983] (Ala.Crim.App.1983). The State petitioned here for certiorari, which this Court granted, and reversed and remanded the cause to the Court of Criminal Appeals, holding that while Beck was entitled to a new sentencing hearing under Witherspoon, he was not entitled to a new determination of his guilt. Ex parte State, 485 So. 2d 1201 (Ala.1984). On remand, the Court of Criminal Appeals affirmed Beck's conviction but remanded to the trial court for resentencing. Beck v. State, 485 So. 2d 1203 (Ala.Crim.App.1984). Before a resentencing proceeding could be held, however, Beck again petitioned here for certiorari, asking this Court to review the propriety of his conviction. The State agreed that this Court should review the issue of Beck's guilt, even though resentencing was still pending. This Court granted certiorari and heard oral arguments and has now reviewed the record.
The issues now before this Court are (1) whether an inculpatory statement made by Beck was incident to an illegal arrest and, therefore, improperly admitted; (2) whether *1209 the trial court erred in not dismissing all prospective jurors who knew of Beck's previous conviction arising out of the same occurrence; (3) whether the trial court's charge to the jury, particularly as to lesser included offenses, was incorrect and misleading, and; (4) whether this Court's decision in Beck II was an unconstitutional usurpation of legislative authority. We will first address issue four and then proceed to address the remaining issues in order.
Did this Court usurp legislative power in Beck v. State, 396 So.2d 645? The answer is in the negative.
In Ex parte Clisby, 456 So. 2d 95 (Ala. 1983), the defendant/petitioner raised this same argument now advanced by Beck, that by striking the preclusion clause from the Alabama Death Penalty Act in Beck II, this Court usurped the authority of the legislature. In Clisby, this Court, speaking through Justice Faulkner, held that all actions taken by the Court in Beck II were constitutional. Our opinion regarding the constitutionality of the statute under which Beck was convicted has not changed; therefore, Beck is not entitled to a reversal of his conviction on this ground.
Petitioner argues that an inculpatory statement he made after his arrest should not have been admitted into evidence because it was the "first" of his illegal arrests. The trial court found that petitioner's arrest was not illegal, specifically stating the following:
The Court of Criminal Appeals affirmed the judgment of the trial court and, regarding the admission of the inculpatory statement, held:
Petitioner argues, in brief, that these findings of fact are "incorrect." He states:
The State counters by arguing that "[t]he pages to which reference is made are part of the defendant's first trial," and that "[a] portion of that transcript was included in the record of this case on appeal as a supplemental transcript on motion of the defendant; however, the pages to which the defendant refers were not included in the supplemental transcript and thus are not part of the record in this case. An appellate court generally cannot consider any matter outside of the record. Dates v. State, 282 Ala. 457, 212 So. 2d 845 (1968)."
The State also argues that the record in the current case supports the findings made by the trial court and the Court of Criminal Appeals regarding the time when the boots were found. In brief, the State points out:
The actual testimony of the investigating officer is as follows:
The State also argues that "probable cause existed even if the only fact known to police at the time of the arrest was that the defendant's truck had been seen at the Malone home on the afternoon of the killing. To support its contention, the State argues:
The State's ultimate position is that, assuming that the arrest was illegal because of a lack of probable cause, the confession should not be suppressed because there was no causal connection between the arrest and the confession.
We do not address the question of whether the confession was "tainted" under the principle announced in Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982), because we find, as did the trial court and the Court of Criminal Appeals, that there was sufficient probable cause for the petitioner's arrest.
Beck's next argument is that the trial court should have excused all those jurors who knew of his previous conviction. The record does show, as Beck argues, that twenty-eight of the prospective jurors knew of his previous conviction and that three of those veniremen eventually sat on the jury that convicted him. The Court of Criminal Appeals held:
The searching, sifting cross-examination of prospective jurors by two very able defense lawyers convinces us that the Court *1212 of Criminal Appeals correctly applied the law to the facts; therefore, its judgment is due to be affirmed on this issue. However, there is absolutely no evidence to indicate that any of these three jurors were in any way prejudiced against Beck because of the knowledge they possessed.
Finally, we agree with the Court of Criminal Appeals that the trial court's instructions to the jury, when viewed as a whole, were adequate to apprise the jurors of the elements of capital murder and its pertinent lesser included offenses.
The Court of Criminal Appeals, while finding the trial court's charge was "somewhat complex and confusing," nevertheless, found that the jury was not left in a state of confusion, and held:
After reviewing the court's oral instructions and requested written instructions which were given, we are convinced that prejudicial error has not been shown. The judgment of the Court of Criminal Appeals in this issue is due to be affirmed.
Having considered each of the issues raised by Beck and finding none which warrants reversal, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | August 23, 1985 |
9ab2274a-df26-4617-a638-303714ca1035 | Ex Parte Beaver Valley Corp. | 477 So. 2d 408 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 408 (1985)
Ex parte BEAVER VALLEY CORPORATION.
(In re BEAVER VALLEY CORPORATION v. Frank PRIOLA).
83-614.
Supreme Court of Alabama.
August 23, 1985.
*409 William B. Fernambucq and Charles H. Clark, Jr. of Huie, Fernambucq & Stewart, Birmingham, for petitioner.
Joe R. Whatley, Jr. and John C. Falkenberry of Stewart, Falkenberry & Whatley, Birmingham, for respondent.
*410 ALMON, Justice.
This Court issued a writ of certiorari to the Court of Civil Appeals to review a judgment of that court upholding an award for vocational rehabilitation under the workmen's compensation law.
Respondent was injured as a result of an on-the-job accident while employed by Beaver Valley Corporation. He suffered a twenty-five percent permanent partial disability of one arm and a thirty percent permanent partial disability of the other arm.
At the time of the accident he was 27 years old and his job consisted primarily of manual labor. He held a college degree in business administration from the University of Montevallo. He had also taken classes at Jefferson State Junior College in real estate, and at the University of Alabama at Birmingham in engineering in 1976 and 1978.
The circuit court, based on the testimony of Dr. Richard Meyer and Robert Thompson, a vocational rehabilitation specialist, held in construing § 25-5-77(c), Code 1975, that Respondent was entitled to an award from Beaver Valley for vocational rehabilitation.
The circuit court ordered that Beaver Valley pay $5,480.00 a year for three and one-half years for Respondent to attend the University of Alabama at Birmingham so that he could obtain both undergraduate and masters degrees in computer science.
Dr. Meyer testified that Respondent is unable to return to manual labor. Robert Thompson testified that in today's economy a person with an undergraduate degree in business administration is not in great demand. On cross-examination, Thompson stated that Respondent can do almost anything he sets his mind to, other than heavy manual labor, and that if there was a job market, there would be numerous jobs he could perform with his educational background. Both Dr. Meyer and Thompson testified that in their opinions undergraduate and master's degrees in computer science from U.A.B. were reasonably calculated to restore Respondent to gainful employment and that earning them would be in his best interest. Respondent testified that he has applied for numerous jobs, to no avail.
Vocational rehabilitation benefits were awarded pursuant to § 25-5-77(c), Code 1975, which provides:
The Court of Civil Appeals, 477 So. 2d 404 (1984), held that because there was competent evidence in the record that Respondent is unable to return to his former employment and because both the treating physician and the vocational rehabilitation specialist opined that undergraduate and master's degrees in computer science from U.A.B. were reasonably calculated to restore Respondent to gainful employment, the judgment of the trial court was due to be affirmed.
The standard of review in workmen's compensation cases is limited to a determination of whether there is any legal evidence to support the trial court's findings of fact. The appellate court does not weigh the evidence. If any reasonable view of the evidence supports the findings of the trial court, it is then determined if the correct legal conclusions have been drawn therefrom. Montgomery Lincoln-Mercury, *411 Inc. v. Neal, 423 So. 2d 850 (Ala. 1982). The basic facts being generally undisputed, our review of this case will focus primarily on whether the correct legal conclusions have been drawn from the evidence. A determination of whether the correct legal conclusions have been drawn will depend upon the proper statutory construction of § 25-5-77(c).
The scope of an employee's rights to vocational rehabilitation pursuant to § 25-5-77(c) is an issue of first impression. The general rule is that the workmen's compensation statutes will be liberally construed to effect their beneficent purposes. Orkin Exterminating Co. v. Williams, 389 So. 2d 935 (Ala.Civ.App.1980). While the statute should be liberally construed to effect its beneficent purposes, it should not be given a construction extending it beyond its legitimate scope, nor one which the language of the statute does not fairly and reasonably support. City of Jasper v. Sherer, 273 Ala. 356, 141 So. 2d 202 (1962).
Our research has revealed that at least 47 states have some kind of special rehabilitation provision in their statutes. These statutes vary widely; none of them is identical to § 25-5-77(c), and most provide more definite guidelines for the trial court.
In the absence of legislatively drawn guidelines for implementation of the statute, a court applying it should devise a reasonable plan of rehabilitation.
2 Larson, The Law of Workmen's Compensation, § 61.23 (1984 Supp.). See also, Adams v. State Accident Insurance Fund, 43 Or.App. 899, 607 P.2d 728 (1979); Saunders v. State Accident Insurance Fund, 40 Or.App. 169, 596 P.2d 1316 (1979); Brady v. General Accident Assurance Company, 29 Or.App. 357, 563 P.2d 763 (1977); Sullivan, Long & Hagerty v. Ward, 665 P.2d 855, (Okla.App.1982); City of Salem v. Colegrove, 228 Va. 290, 321 S.E.2d 654 (1984); Hunter Corp. v. Industrial Commission, 86 Ill. 2d 489, 56 Ill.Dec. 701, 427 N.E.2d 1247 (1981); and Ayoub v. Ford Motor Co., 101 Mich.App. 740, 300 N.W.2d 508 (1980).
The trial court must make two determinations before awarding vocational rehabilitation. First, the court must determine if the worker is a proper candidate for vocational rehabilitation. Secondly, if the worker is a proper candidate, the court must determine the type of vocational rehabilitation which is most appropriate to restore the worker to gainful employment.
It is the trial judge, not the expert witnesses, who is to make these determinations. The testimony of expert witnesses is not binding on the trial court. Even if such testimony is uncontradicted, the weight and sufficiency to be attributed to it are for the trier of fact. See generally, Ward v. King, 415 So. 2d 1095 (Ala.Civ. App.1982). To hold, as the trial court did, that the expert witnesses' testimony is determinative of the issues, if supported by substantial evidence, is an erroneous interpretation of the statute.
What tests or factors should the trial court consider in determining if a worker is a proper candidate for vocational rehabilitation? The first requirement set out in § 25-5-77(c), that the employee is unable to return to his former employment due to his injuries, is not here contested. The second requirement of § 25-5-77(c), that "both a vocational rehabilitation specialist and a treating physician ... shall express their opinions in writing that in the judgment of each of them vocational rehabilitation is reasonably calculated to restore the employee to gainful employment and is in the best interest of the employee," applies both to the eligibility of the employee for vocational rehabilitation and to the type of vocational rehabilitation selected.
*412 As we interpret the statute, inclusion of the phrase "restore ... to gainful employment" means that because of the injury, the employee must no longer be capable of gainful employment. "Restore" means to put back. The ability to be gainfully employed must be put back or restored through vocational rehabilitation. Gainful employment means employment similar in remuneration to that earned prior to the injury. Implicit in this is that the gainful employment sought to be restored must be "suitable." By "suitable" we mean employment which is compatible with the employee's pre-injury occupation, age, education, and aptitude. Thus, in deciding whether an employee is entitled to vocational rehabilitation, the trial court must determine if the employee has the ability to obtain suitable gainful employment. If the employee has lost the ability to obtain suitable gainful employment due to a compensable injury, then, barring any other reasonable basis to deny vocational rehabilitation, he should be entitled to have that ability restored through an appropriate plan of vocational rehabilitation.
Once the trial court has determined that the employee is a proper candidate for vocational rehabilitation, it is then faced with the difficult task of choosing the form of vocational rehabilitation which is most likely to restore the employee to suitable gainful employment. As we have interpreted § 25-5-77(c), the program should be reasonably calculated to restore the employee to suitable employment providing an income comparable to that earned prior to the injury. In making its determination, the trial court should also consider the type of work done by the employee at the time of the injury, his vocational aptitude, his physical and mental abilities, and such other factors as the court may deem relevant.
Under the facts presented in this case, the award of undergraduate and master's degrees in computer science is not an appropriate program of vocational rehabilitation. Such a program far exceeds the purpose of § 25-5-77(c), which is to restore the injured employee to suitable gainful employment. Rather than restoring Respondent to his pre-injury economic status, the program approved by the lower courts would allow Respondent to improve his station in life at the expense of Beaver Valley. This result is substantially in accord with the views expressed by Judge Wright in his dissenting opinion.
Beaver Valley also raises an issue as to the award of room and board expenses while Respondent was attending U.A.B. In light of our ruling on the proposed plan of vocational rehabilitation, we do not deem it appropriate to reach that issue.
The judgment is hereby reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, SHORES, BEATTY and ADAMS, JJ., concur. | August 23, 1985 |
f9cf526a-082f-4c58-87a0-935c3611beac | Mueller v. Hartford Ins. Co. of Alabama | 475 So. 2d 554 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 554 (1985)
W. Fritz D. MUELLER
v.
The HARTFORD INSURANCE COMPANY OF ALABAMA.
84-288.
Supreme Court of Alabama.
August 23, 1985.
Melvin M. Belli, Sr. and Richard E. Brown, San Francisco, Cal., and George J. Moore of Moore & Layden, Mobile, for appellant.
Donald F. Pierce, Edward S. Sledge, III, and David R. Quittmeyer of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
W. Fritz D. Mueller filed this action against Hartford Insurance Company on May 28, 1982, in the Circuit Court of Mobile County, alleging breach of contract and bad faith refusal to pay an insurance claim. The trial court granted summary judgment on the bad faith claim and certified the judgment as final, pursuant to Rule 54(b), Alabama Rules of Civil Procedure. Plaintiff appeals from that final judgment. We affirm.
On December 4, 1980, a house in Baldwin County owned by Fritz and Helga Mueller was destroyed by fire. The house was insured by Hartford under a policy issued through Ebert Insurance Agency in Foley, Alabama. Fritz Mueller notified Ebert Insurance Agency of the loss on December 9, 1980. Ebert relayed the information to Gary Knight, the manager of Hartford's claims office in Mobile, and Knight notified W.T. Crowgey, Hartford's general claims adjuster in Atlanta.
Crowgey interviewed Mueller on December 10, 1980. He characterizes Mueller's account of the circumstances surrounding the fire as the most bizarre that he had *555 heard in his years in the insurance claims business. Nonetheless, he decided to employ Brian T. Maphet of INS Investigations to investigate the fire, rather than advise denial of the claim. On December 10, 1980, Crowgey and Maphet examined the site of the fire for one and one half hours. Maphet returned to the site on the following morning, took photographs, and sketched a diagram of the scene. Later that day, he recorded an interview with Mueller.
Maphet in the course of his investigation made three written reports based upon his examination of the fire scene and his interviews with various witnesses. In the first report, dated December 29, 1980, Maphet concluded:
Maphet stated in the final report, dated February 20, 1981, however:
Hartford denied Mueller's claim on May 29, 1981, "due to his apparent involvement in the origin of the fire." Hartford did, however, pay two claims arising from the fire: $18,642.00 to Helga Mueller, and $57,216.00 to the Federal Land Bank of New Orleans, which held a mortgage on the house.
Fritz Mueller and his wife Helga had moved to New Jersey from their home in Baldwin County in the spring of 1980. Before leaving, the Muellers had all utilities turned off, removed valuables from the house, and otherwise closed the house for an indefinite period. According to statements made by Fritz Mueller during the investigation of the fire, as well as statements made in deposition, the move to New Jersey was made so that he could be near a New York hospital where he planned to undergo eye surgery.
In his brief, Mueller states that he and Mrs. Mueller were having marital difficulties during 1979 and 1980 and separated sometime after the eye surgery. Mueller testified in deposition that he then traveled by bus to New Orleans to consult another eye specialist. Mueller maintains that he stayed in New Orleans for a few days; at the conclusion of his stay, he planned to return immediately to New York. When he discovered that the bus made a stop in Mobile, however, he decided to spend a few days at his Baldwin County home.
Mueller states that he arrived in Mobile on December 3, 1980. He rented a car and went shopping, purchasing, among other things, a few days' worth of groceries and some varnishing materials. Later, he had a couple of drinks on the beach and, at approximately 10:00 p.m., went to bed. He awoke sometime around 2:30 a.m. and decided to varnish an area of wooden floors in the house. He maintains that he had to work primarily by candlelight, since the utilities to the house had been disconnected. After varnishing for some time, Mueller went outdoors to smoke a cigarette. He said that when he attempted to light the cigarette, undried varnish on his hands ignited. He said he rushed inside, and the fire spread to the house. He states, however, that he was able to put the fire out in about three minutes.
Mueller claims that he decided to drive to a motel near his home in order to telephone the fire department. He explains that he decided to use the motel phone instead of a close neighbor's because he was not sure whether any of his neighbors were home and because the home of his closest neighbor was not easily accessible by foot. As Mueller was driving to the motel, his rented car ran off the road and into a ditch near the home of John Bemis. Bemis helped Mueller get the car back onto the road. Mueller failed, however, to tell Bemis that his house had been on fire or that he *556 had sustained burns. In deposition, Mueller testified as follows:
Mueller states that as he was about to leave Bemis, a neighbor drove by and yelled to him, "Fritz, your house is on fire." Mueller says he drove back to the house and that, when he arrived, it was engulfed in flames. He was later taken to the hospital by ambulance and treated for the burns he sustained during the fire.
The plaintiff in a bad faith case has the burden of proving:
National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982). Accordingly, in National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982), we explained:
In McLaughlin v. Alabama Farm Bureau Mut. Cas. Ins. Co., 437 So. 2d 86 (Ala. 1983), we affirmed a summary judgment in favor of Farm Bureau on McLaughlin's bad faith claim, which arose from the fire destruction of his building. Farm Bureau denied McLaughlin's claim based on the following circumstances: Liquid accelerants were found in the portion of the building where the fire started; McLaughlin falsely claimed that certain items were destroyed in the fire; he had misrepresented his financial condition to Farm Bureau; and he had falsely represented that he had never been involved in litigation. The Court, writing through Chief Justice Torbert, concluded that Farm Bureau had, at least, an arguable reason to deny the claim:
437 So. 2d at 91.
Hartford argues that it had at least a debatable reason for denying the claim in this case, based on its suspicion that Mueller intentionally set the fire. We agree.
Arson by an insured is an absolute defense to an action upon the policy, even in the absence of language in the policy so providing. Hosey v. Seibels Bruce Group, South Carolina Ins. Co., 363 So. 2d 751 (Ala.1978). An arson defense may be proven either by direct or circumstantial evidence. In Great Southwest Fire Ins. Co. v. Stone, 402 So. 2d 899, 900 (Ala.1981), we quoted at length from the brief of the appellee-insured; part of that quoted material is as follows, and we consider it to be a correct statement of the law:
In the case at hand, it cannot be denied that Mueller paints a very unusual picture of the circumstances surrounding the firethat a man with a vision problem decided in the middle of the night to varnish by candlelight the floors of a house *558 that had been empty for a number of months.
To be sure, unusual circumstances sometimes arise, and Mueller may well be able to prove in the contract action now pending before the trial court that the facts occurred as he describes them. We find nothing, though, in Hartford's denial of the claim based on Mueller's story or on Hartford's investigation of this case which amounts to evidence of bad faith.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.
FAULKNER, J., concurs in the result. | August 23, 1985 |
f62d95cd-8eb2-476b-9ad9-fa916c929c60 | Pell City Wood v. Forke Bros. Actioneers | 474 So. 2d 694 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 694 (1985)
PELL CITY WOOD, INC., a corporation, a/k/a Smith Land & Timber, Inc.; Allison Trucking Company, a corporation; Allison Smith, an individual; and James Tice, an individual
v.
FORKE BROTHERS AUCTIONEERS, INC. and Magic City Trucking Service, Inc.
84-52.
Supreme Court of Alabama.
August 2, 1985.
J. Mitchell Frost, Jr. of Whitmore, Coleman & Whitmore, Birmingham, for appellants.
Richard F. Ogle of Denaburg, Schoel, Meyerson, Ogle, Zarzaur & Max, Birmingham, for appellee Forke Bros. Auctioneers.
Paul E. Toppins of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee Magic City Trucking Service, Inc.
ADAMS, Justice.
This appeal arises from the Jefferson County Circuit Court's grant of summary judgment in favor of defendants, Forke Brothers Auctioneers and Magic City Trucking Service, Inc., in a suit involving the purchase of a truck. We affirm.
On Thursday, May 12, 1983, Forke Brothers Auctioneers (Forke Brothers) conducted an auction at which vehicles owned by Magic City Trucking Service, Inc. (Magic City) were sold. Plaintiffs James Smith, Sr., and James Smith, Jr. (representing Pell *695 City Wood, Inc.), and James Tice (representing Allison Trucking Company) attended the auction. Upon their arrival, the three men registered under the name Pell City Wood, Inc., and each was given an auction brochure. Printed on each of the first three pages of the brochure were disclaimers of warranty, and these three pages were followed by descriptions of the property to be auctioned.
The following language appeared on the cover of the brochure: "Condition of equipment in this catalog is merely a guide and is in no way a warranty or guarantee, actual or implied. All equipment is sold `As is, where is.'" At the bottom of page two, the following paragraph was printed:
Finally, page three contained the following disclaimer: "All of the equipment in this Auction is being sold `As is, Where-Is.' Conditions in this catalog are to be used as a guide only, and are not a warranty or guarantee."
James Smith, Jr., the person who ultimately purchased the truck for Pell City Wood, Inc., acknowledged that he read the entire brochure, including the disclaimers, before bidding on the truck. He also admitted that he spoke with no one from either Forke Brothers or Magic City about the truck prior to its purchase, and that, other than the words of the auctioneer, the only "representation" concerning the truck came from the brochure. Smith was given an opportunity to inspect the truck prior to purchase, and he did inspect it. Subsequent to its purchase, Smith drove the truck away from the auction, but, approximately seven miles down the road, the truck broke down. Smith later discovered that there was a crack in the engine block, which required repairs totalling $8,927.00. Smith contacted Forke Brothers with regard to the defect in the truck, but there was no showing that Magic City was ever notified of the situation.
On March 12, 1984, plaintiffs filed suit for rescission, breach of warranty, and fraud against Forke Brothers and Magic City. Defendants filed motions for summary judgment, which were granted by the court on August 30, 1984, and this appeal followed.
It is well settled in Alabama that summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P., First National Bank of Birmingham v. Culberson, 342 So. 2d 347 (Ala.1977). Plaintiffs claim that an issue of fact was created as to whether the representations made by the auctioneer, or those printed in the brochure, were either false representations upon which a claim for fraud could be based, or amounted to express warranties. We disagree.
The statements of the auctioneer that "the trucks are in good condition," and "the trucks are ready to work tomorrow" are clearly an example of "puffing" on the part of the auctioneer in an attempt to get more money at sale. Even if they are not classified as "puffing," at best these statements are simply the auctioneer's opinion or commendation of the trucks which, according to Code 1975, § 7-2-313(2), do not rise to the level of an express warranty.
Regarding the statements in the brochure, plaintiffs have failed to offer even a scintilla of evidence that these "representations" would constitute either express warranties or misrepresentations upon which a claim for fraud could be based. In three different places in the brochure there is language stating that the equipment was being sold "as is, where is." This "as is" language has been held to place with the buyer the entire risk as to the quality of the goods purchased. Code 1975, § 7-2-316, Official Comment 7 (Repl. Vol.1984). James Smith admitted that he read all the disclaimers contained in the brochure and that he understood what "as is" meant, because he had sold items "as is" in the past. Smith also conceded that *696 he read and understood the language found in at least three places in the brochure to the effect that the conditions of the equipment listed in the brochure were to be used only as a guide and that nothing printed therein was to be taken as a warranty, express or implied. Furthermore, there were provisions included in the brochure which put potential buyers on notice that, although these descriptions of the equipment were conscientiously set forth by the owner, "neither the owner nor the Auctioneers are responsible for any errors in description or condition."
James Smith read the entire brochure before bidding on any equipment. Despite all the warnings printed in the brochure, he decided to bid on, and ultimately purchased, the truck which later broke down. We fail to see how the defendants could have done any more to warn potential buyers than was done in this case. Smith was fully aware of what might happen, and he cannot be allowed to recover for what has turned out to be a bad deal.
For all of the above-stated reasons, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES and ALMON, JJ., concur. | August 2, 1985 |
9edfecac-659b-46ec-bebc-a80b69765756 | Law v. Omelette Shop, Inc. | 481 So. 2d 370 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 370 (1985)
Edie LAW
v.
OMELETTE SHOP, INC., et al.
84-664.
Supreme Court of Alabama.
November 22, 1985.
*371 Gregory D. Cotton of Hanes & Cotton, Birmingham, for appellant.
Robert M. Girardeau of Huie, Fernambucq & Stewart, Birmingham, for appellees.
ADAMS, Justice.
Plaintiff, Edie Law, appeals from a summary judgment entered in the Jefferson County Circuit Court against her and in favor of defendant, Omelette Shop, Inc. We affirm.
At 2:00 o'clock on the morning of September 25, 1984, Edie Law went to the Omelette Shop on Tenth Avenue North in Birmingham, Alabama. After having eaten in the restaurant, she exited through the front door. While she was standing in front of the Omelette Shop, a man grabbed her, and after a brief struggle, the man pushed her to the ground and fled with her purse.
As a result of the incident, Law filed suit against the Omelette Shop on November 13, 1984. In her complaint, Law alleged that the Omelette Shop knew of the probability of injury to business invitees because of the criminal conduct of third parties and failed to take sufficient preventive measures, and that as a proximate consequence of its negligence or wantonness, she suffered personal injury. Omelette Shop filed a motion for summary judgment on December 11, 1984, which the trial court granted on February 28, 1985. Law subsequently appealed.
The sole issue for our review is whether, under the facts of this case, Omelette Shop was under a duty to provide protection for Law from the criminal conduct of a third party.
This Court dealt with a similar fact situation and issue in the case of Ortell v. Spencer Companies, 477 So. 2d 299 (Ala. 1985). We upheld a summary judgment entered in favor of the defendant business. In Ortell, a woman who had stopped by a convenience store to purchase cigarettes was robbed and assaulted. Discussing the liability of a business for injuries to its invitees as a result of the criminal conduct of a third person, we stated:
477 So. 2d at 299.
In Ortell, there was evidence submitted that, during the three-year period immediately preceding the assault, eight incidents of assault, theft, robbery, or burglary had occurred on the premises. Furthermore, during the same time period, over eighty separate incidents of such conduct had occurred within a two-block area surrounding the convenience store. After listing the above-mentioned criminal activities, we stated:
Id.
In the case at bar, there had been only one report filed with the Birmingham Police Department concerning a robbery of an invitee of the Omelette Shop in the three-year period immediately preceding the incident which is the subject of this action. Obviously, this does not even approach the frequency of criminal activity that was present in Ortell, where we held that there was a complete lack of evidence tending to show that the defendant had knowledge, either actual or constructive, that criminal activity of the same nature that harmed Ortell was a probability. We are of the opinion that plaintiff in this case has also failed to offer any proof that Omelette Shop had any knowledge of such a probability. Therefore, the summary judgment is hereby affirmed. Rule 56, Ala.R.Civ.P.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | November 22, 1985 |
64b23396-161d-46c4-8de6-55c19ce64112 | Terry Cove North, Inc. v. BALDWIN CTY. SEWER AUTH. | 480 So. 2d 1171 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1171 (1985)
TERRY COVE NORTH, INC., a corporation
v.
BALDWIN COUNTY SEWER AUTHORITY, INC.
84-196.
Supreme Court of Alabama.
August 30, 1985.
*1172 James L. Shores, Jr. of Shores & Booker, Fairhope, for appellant.
James B. Newman and Richard E. Davis of Coale, Helmsing, Lyons & Sims, Mobile, for appellee.
FAULKNER, Justice.
This is an appeal from an order granting a Rule 54(b), A.R.Civ.P., partial summary judgment in favor of plaintiff, Baldwin County Sewer Authority, Inc. (Sewer Authority).
This action arose out of the following facts: Terry Cove North, Inc., planned to develop some residential property in Baldwin County. In order to meet its sewage disposal needs, Terry Cove North and five other developers entered into an agreement with the Sewer Authority, a private corporation, for the construction and operation of a sewage treatment facility. This agreement, dated November 14, 1980, provides that the Sewer Authority "shall acquire a site and construct and operate a sewage treatment plant thereon." The developers, Terry Cove North, Inc., East Beach, Inc., Ono Development Co., Ono East Inc., Sunshine Joint Venture, and Frank J. Caron, each agreed to initially contribute a certain amount of money, totaling $800,000.00, to cover the cost of construction of the first phase of the system. In return, each developer was entitled to the service of the facility up to and including a certain designated number of the initial 1200 sewer hook up units. The units were apportioned among the developers on the basis of their respective investments. The agreement also provided that the developers would have certain designated preemptive rights, based upon their respective percentages, to additional units to be added through future expansion. There was attached to the agreement an "Exhibit B," which sets forth the number of initial units and the number of future units to which each developer was entitled, the total being an anticipated capacity of 3600 units (see appendix).
Upon completion of the three phases each developer received its proportional share or its preemptive right to its share of the 3600 units. Apparently the capacity of the sewage treatment facility was in excess of the 3600 units, and thereafter the Sewer Authority began contracting with other developers, who were not originally involved in the agreement, to make available certificates for use of the treatment plant.
On October 21, 1983, and again on November 18, 1983, Terry Cove North, Inc., wrote to the Sewer Authority, claiming that the developers were entitled to benefits from any expansion and requesting its pro-rata share of any additional sewer units.
Thereafter, on December 6, the Sewer Authority brought a declaratory judgment action in the Mobile Circuit Court, seeking, inter alia, a determination by the court that any capacity of the treatment plant in excess of 3600 sewer hook-up units is the sole and exclusive property of the Sewer Authority, and that the developers are entitled to no more than their designated hook-ups as set forth in the agreement.
Terry Cove North, Inc., thereafter made a motion for change of venue to the Baldwin County Circuit Court. After a denial of that motion, Terry Cove North, Inc., instituted a declaratory judgment action in Baldwin County against the Sewer Authority, the developers, and several other developers who had contracted for sewer hook-up units from the Sewer Authority. This cause was eventually transferred and consolidated with the Mobile County action.
Subsequently, the Sewer Authority moved for partial summary judgment declaring that "the total number of Baldwin County Sewer Authority's sewer units to which defendants are entitled is the number set forth on attached `Exhibit B.'" On November 14, 1984, the trial court granted the Sewer Authority's motion for partial summary judgment. In its order dated November 16, 1984, the court found no just reason for delay, and entered its judgment pursuant to Rule 54(b).
Defendant, Terry Cove North, Inc., appeals, raising several issues. The primary *1173 issue for our consideration is whether the trial court properly granted the Sewer Authority's partial summary judgment.
The crux of the issue before the Court is whether, based upon the materials on file before the trial court, a genuine issue of material fact existed as to the terms of the subject agreement. Rule 56, A.R.Civ.P.
The position of Terry Cove North, Inc., on appeal is that the contract is ambiguous and, therefore, extrinsic evidence is necessary to ascertain the intent of the parties. Terry Cove North, Inc., apparently contends that the parties intended that any expansion of the sewage treatment facility would be limited to those developers who were parties to the agreement. We disagree and affirm.
The construction of a written instrument is a function of the court. Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So. 2d 314 (Ala.1979). Whether an agreement is ambiguous is a question of law for the trial court. When its terms are clear and certain, the court, and not the jury, has the duty to determine the meaning of the agreement. Haddox v. First Alabama Bank of Montgomery, N.A., 449 So. 2d 1226 (Ala.1984). In order to ascertain the intention of the parties, the clear and plain meaning of the terms of the agreement are to be given effect, and the parties are presumed to have intended what the terms clearly state. Id. Extrinsic evidence may be admitted to interpret a contract only if the court finds that the contract is ambiguous. Coosa Valley Youth Services Corp. v. Etowah County, 460 So. 2d 1232 (Ala.1984).
Upon review of the agreement, we find that the trial judge correctly concluded as a matter of law that the agreement was unambiguous. We also cannot accept the contention of Terry Cove North that the developers are entitled to a pro rata share of the expansion of the facility. This interpretation is inconsistent with the clear and plain meaning of the terms of the contract.
Terry Cove North, Inc., admits that the parties anticipated an expansion of the sewer facility beyond the 3600 unit capacity.
The agreement specifically states that "[e]ach Developer shall have the right to expand the facility to provide for the number of future units as set forth on Exhibit `B'." Clearly, this provision indicates that the expansion of the facility as it relates to the developers was limited to the specific number of units as provided for in the contract. It is apparent that the developers contracted for, and in fact received, a designated number of sewer hook-up units.
Moreover, the agreement specifically allows for use of the facility by others:
Accordingly, this provision clearly shows that the Authority was permitted, pursuant to the agreement, to allow other developers to use the facility, so long as the capacity of the facility was not reduced below what was needed to handle the units designated to the developers. In this case, none of the developers, including Terry Cove North, showed any evidence that the use by other developers would in any way reduce the capacity needed to handle the units designated for the developers. The parties in this case got what they bargained for and cannot now be allowed to present extrinsic evidence to alter the plaint meaning of their agreement.
When an instrument is unambiguous, its construction and effect are questions of law which may be decided under appropriate circumstances by summary judgment. Warrior Drilling and Engineering Co. v. King, 446 So. 2d 31, 33 (Ala. 1984). Here, the court properly determined *1174 from the four corners of the agreement that the developers were entitled only to the 3600 units as set forth in "Exhibit B," and thus properly granted the Sewer Authority's partial summary judgment.
We are not persuaded that the affidavit of Ralph L. Wheat, Jr., presents evidence of fraud so as to preclude summary judgment. The only issues for the court's consideration are those framed in the pleadings. In this case, none of the pleadings raises the issue of fraud either as a cause of action in a counterclaim or as an affirmative defense. Fraud must be affirmatively pleaded and cannot be raised for the first time on appeal.
Moreover, the affidavit, submitted in opposition to the motion for partial summary judgment, fails to set forth sufficient facts showing that there is a genuine issue for trial. Alabama Rules of Civil Procedure, Rule 56(e). The affidavit fails to set forth the requisite element of intent to deceive at the time of the making of the contract, Robinson v. Allstate Insurance Co., 399 So. 2d 288 (Ala.1981), and fails to allege any injury to Terry Cove North as a result of the alleged misrepresentation.
The mere allegation that Terry Cove North relied upon a representation made by the Sewer Authority and that information regarding the capacity of the facility was collected from the developers, is insufficient to create a genuine issue of material fact of fraud.
Terry Cove North also contends that venue is improper in Mobile County. This issue, however, is not properly before us on appeal. Disposition of a motion for change of venue may not be reviewed by appeal. The proper device for invoking review is a petition for writ of mandamus. Davis v. Marshall, 404 So. 2d 642 (Ala. 1981).
We have also carefully reviewed the numerous other issues raised by Terry Cove North; however, we find them to be without merit. We therefore affirm the trial court's granting of partial summary judgment.
AFFIRMED.
TORBERT, C.J., and MADDOX, EMBRY and ADAMS, JJ., concur. | August 30, 1985 |
2d776e51-9176-4525-8120-42beec3060bd | Belcher v. Jefferson County Bd. of Educ. | 474 So. 2d 1063 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1063 (1985)
Leann BELCHER
v.
JEFFERSON COUNTY BOARD OF EDUCATION: Betsy Faucette, Harriett Gwin, Kevin Walsh, Mary Buckelew, Bill Mewbourne, individually and as members of the Jefferson County Board of Education; and Kenneth Abbott, individually and as principal of Hewitt-Trussville High School and
Henry Allen GRAHAM
v.
JEFFERSON COUNTY BOARD OF EDUCATION; Betsy Faucette; Harriett Gwin; Kevin Walsh; Mary Buckelew; Bill Mewbourne, individually and as members of the Jefferson County Board of Education; and their successors in office; and Haywood Atkinson, individually and as principal of Hueytown High School.
83-1423, 84-577.
Supreme Court of Alabama.
July 19, 1985.
*1064 Edward Still of Reeves & Still, Birmingham, and Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellants.
Carl E. Johnson, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellees.
ADAMS, Justice.
These cases were consolidated on appeal because their resolution is dependent on the answer to the same question: Does a non-tenured teacher have a cause of action against an employer board of education for failing to follow its own teacher evaluation policy in deciding not to reemploy that teacher for another year? We find that such an action may be maintained, and we, therefore, reverse the judgment of the lower court.
Appellant Allen Graham was employed as a non-tenured teacher by the Jefferson County Board of Education for two years. During the second year, Graham was informed that he would not be reemployed for a third year. Graham alleges that Haywood Atkinson, the principal of Hueytown High School, where Graham taught, failed to perform an evaluation of Graham as required by Board of Education policy. Rather, it is alleged, Atkinson delegated that responsibility to the head football coach of the school. Graham alleges that in further non-compliance with Board policy, he was not informed in advance of the principal's recommendation that Graham not be reemployed. He also alleges that he was not evaluated in the spring based on fall assessments, as required by the Board policy.
Consequently, Graham filed suit against the Board of Education and Atkinson, *1065 alleging breach of contract and violation of his constitutional rights, in that the Board failed to follow the procedures outlined in Board policy No. 533.6 regarding the assessment and evaluation of teachers. The trial court granted a motion to dismiss filed by the defendants.
Appellant Leann Belcher was employed as a non-tenured teacher at Hewitt-Trussville High School by the Jefferson County Board of Education for three years. During her third year, Belcher was informed that she would not be reemployed for a fourth year. Belcher sued the Board of Education and Kenneth Abbott, the principal of Hewitt-Trussville High School, for breach of contract, negligent evaluation, and violation of her constitutional rights. Like Graham, Belcher alleged that the Board failed to comply with its own policy No. 533.6 in deciding not to reemploy her. Belcher alleges specific non-compliance in that: 1) she was not evaluated in the spring based on fall assessments, 2) an observation form was completed respecting Belcher but not promptly shown to her, and 3) she was not informed of Abbott's recommendation that she not be reemployed. The trial court dismissed Belcher's complaint for failure to state a claim upon which relief could be granted.
Graham and Belcher here appeal the dismissals of their suits. The issue presented to us for review is whether a non-tenured teacher has a cause of action against an employer board of education for failing to follow its own teacher evaluation policies in deciding not to reemploy that teacher for another year. A threshhold question which must first be answered is whether the board of education, even if it is bound to follow its own evaluation policy, is nevertheless immune from such a suit.
The sovereign immunity of the State is provided for in our Constitution as follows: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." Ala. Const. art. I, § 14. In Hutt v. Etowah County Board of Education, 454 So. 2d 973 (Ala.1984), we reaffirmed the established position that county boards of education are arms of the State as far as immunity is concerned:
454 So. 2d at 974. In Hutt we said the trial judge was correct in granting summary judgment in favor of a board of education accused of failure to furnish safe gymnasium facilities, because boards of education are immune from such tort suits.
They are not immune from all suits, however. Section 16-8-40, Code 1975, gives county boards of education the right to sue and contract. In Sims v. Etowah County Board of Education, 337 So. 2d 1310 (Ala. 1976), this Court affirmed a dismissal by the lower court of a tort claim of negligence, but reversed the dismissal of the breach of implied contract counts. The Court cited the board's statutory right to sue and contract, supra, and stated as follows:
337 So. 2d at 1314. Therefore, in the present case, the Jefferson County Board of Education is not automatically immune to a breach of contract action.
In addition to such contract suits against the Board itself, individual members of boards of education can be subject to lawsuits, and this vulnerability is not limited to contract actions. In Hickman v. Dothan City Board of Education, 421 So. 2d 1257 (Ala.1982), we affirmed the dismissal of a complaint against individual members of a board of education for negligent and false evaluation. The Court, however, cited DeStafney v. University of Alabama, 413 So. 2d 391 (Ala.1981) (on rehearing), which states as follows:
413 So. 2d at 395. In Hickman, although we recognized the limits of immunity, this Court nonetheless found that any alleged negligent conduct was protected by sovereign immunity as a discretionary function. We stated:
421 So. 2d at 1260. In the present case, in order for Belcher and Graham to state a negligence claim, they would have to allege negligent behavior not falling within the realm of discretionary function.
Having addressed the immunity issue, we must now determine whether the sua sponte adoption by a board of education of a specific written policy regarding teacher evaluation affords any enforceable legal rights to the teachers governed thereby.
Non-tenured teachers may be reemployed or terminated at the discretion of the board of education. This Court has stated the following in this regard:
Foster v. Blount County Board of Education, 340 So. 2d 751 (Ala. 1976). In Foster, a non-tenured female teacher requested a maternity leave and was instead not renewed for another year's employment. She brought suit, alleging violation of her due process rights. The Court said this:
340 So. 2d at 752. The Court affirmed a denial of reinstatement, stating that the teacher failed to prove either that her termination was because she was exercising some Constitutional right, or that she had a claim or entitlement to reemployment.
In the present cases, neither Belcher nor Graham claims to have been terminated because of the exercise of a constitutional right. Their due process arguments would necessarily be based on a claim or entitlement theory, based on the adoption by the Board of Education of an evaluation policy. Similarly, their breach of contract and negligent evaluation claims are based on the Board's failure to follow its own self-imposed policy.
In Walker County Board of Education v. Walker County Education Association, 431 So. 2d 948 (Ala. 1983), a board of education brought a declaratory judgment action seeking a determination that policies it had adopted regarding employment of members of the Walker County Education Association were not legally binding. We affirmed the trial court's summary judgment against the Board of Education, stating as follows:
431 So. 2d at 953. The Court then concluded in this way:
431 So. 2d at 954. Although Walker County did not directly address a teacher's suit to enforce such Board policies, it clearly states that a board of education is bound to comply with its adopted policies.
In Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959), the Supreme Court addressed a situation in which an employee of the Department of the Interior was dismissed without compliance with Department policy for a "security" type discharge. An executive order and a statute provided procedures for dismissals on security grounds. The Supreme Court had previously held that employees in positions not designated as "sensitive" could not be discharged under the procedures provided for in that executive order and statute, if those procedures provided lesser procedural protections than those to which the "non-sensitive" employee would normally be entitled. The Secretary of the Interior also promulgated his own regulations dealing with security dismissals.
Vitarelli was an employee in a "non-sensitive" position from which he could have been summarily discharged. The Secretary, however, without need, stated that Vitarelli was being discharged for security reasons. The Court held:
359 U.S. 539-540, 79 S. Ct. 972-973. In the present case, the Board of Education did not legally have to follow any particular evaluation policy absent its own self-imposed procedures. Having adopted a policy, however, the Board is bound to follow it. Walker County, supra.
The claims of Belcher and Graham were dismissed below for failure to state a claim upon which relief could be granted. Applying the above-discussed principles to this case, we hold that the appellants did not sufficiently allege the requisite elements of a due process claim. Foster, supra. Furthermore, we hold that the appellants' allegations of negligence fall within the ambit of discretionary functions and, thus, are barred by the sovereign immunity defense. Hickman, supra. Therefore, the dismissal of the tort and due process counts was proper.
On the other hand, we hold that the appellants have alleged a breach of contract claim upon which relief could be granted, on the basis of the Board of Education's adoption of an evaluation policy, and alleged subsequent non-compliance with that policy. Therefore, the dismissal of the contract claim was error.
For the above-stated reasons, the judgment of the trial court is affirmed in part and reversed in part and remanded.
*1069 AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I deem it necessary to write because the majority should have distinguished this case from Gowens v. Cherokee County Bd. of Ed., 348 So. 2d 441 (Ala.1977), the case relied upon by the trial court. The issue presented in this case is not the same as that presented in Gowens. The issue here is whether a teacher has an action for breach of contract when the Board fails to follow seemingly applicable Board policy. In Gowens, we concluded that the Board policy was not applicable to the facts in that case. | July 19, 1985 |
9c6e0c3a-b37c-4d31-b776-ee01a9c1d8a7 | Ex Parte Alexander | 475 So. 2d 628 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 628 (1985)
Ex parte Gary ALEXANDER.
(Re Gary Alexander v. State of Alabama).
84-271.
Supreme Court of Alabama.
July 12, 1985.
Barnes F. Lovelace, Jr., Decatur, for petitioner.
Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
Gary Alexander was convicted of escape in the first degree under Code 1975, § 13A-10-31. The evidence showed that Alexander was an inmate within the State of Alabama Correctional System and was stationed at the Decatur Work Release Center. Alexander was serving time under a felony conviction. On April 6, 1982, Alexander failed to return to the work release center from his place of employment. He was not authorized to go anywhere except his place of employment and had instructions to return to the work release center after work.
Alexander appealed the escape conviction to the Court of Criminal Appeals. He argued that the word "custody" in the escape statute did not encompass his work release situation. In fact, two prior decisions issued by the Court of Criminal Appeals supported the argument that the failure of an inmate to return from his place of employment to his place of confinement did not constitute escape from custody. Grimes v. State, 402 So. 2d 1094 (Ala.Cr.App.1981); *629 Eady v. State, 369 So. 2d 841 (Ala.Cr.App. 1979).
In Alexander's case, however, the Court of Criminal Appeals, 475 So. 2d 625, reconsidered the scope of the word "custody," and found that the crime of escape in the first degree did cover the facts in Alexander's case. The court expressly overruled Grimes and Eady, thereby erasing the existing interpretation of Code 1975, § 13A-10-31, and creating a new base of conduct falling within the statute.
We granted Alexander's petition for a writ of certiorari, not to question the Court of Criminal Appeals' interpretation of the statute, but to review the effect of that interpretation on Alexander's constitutional rights. We granted certiorari on the following issue: Whether an appellate court's decision, which construes a criminal statute to find certain conduct in violation thereof, should be enforced only prospectively due to the constitutional prohibition against the passage of ex post fact laws, when the appellate court overrules prior cases which held such conduct was not in violation of that criminal statute. Under these circumstances, the application must be prospective only.
Alexander argues that the decision of the Court of Criminal Appeals, in affirming the trial court's judgment and holding that Alexander's conduct fell within the definition of first degree escape, subjects Alexander to punishment for conduct which was free from criminality under § 13A-10-31 when committed. He argues that this retroactive application of the new interpretation violates his rights under Article 1, Section 22, of the Constitution of the State of Alabama, and under Article 1, Sections 9 and 10, of the Constitution of the United States, which provisions prohibit the passage of ex post facto laws. We agree.
In Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964), the Supreme Court of the United States reversed a conviction for trespass because the South Carolina Supreme Court affirmed the conviction on the basis of judicial construction, announced after the alleged trespass, which interpreted the statute as proscribing not only entering the premises of another after notice prohibiting such entry, but also remaining on the premises of another after receiving notice to leave. The United States Supreme Court stated the following:
378 U.S. at 353-54, 84 S. Ct. at 1702-03. The Court concluded by saying this:
378 U.S. at 362-63, 84 S. Ct. at 1707. Therefore, in the case of judicial interpretation of statutes, due process of law prevents the retroactive application of a changed construction of a statute, just as legislative enactments cannot be retroactively applied.
The Michigan Supreme Court followed this principle in People v. Stevenson, 416 Mich. 383, 331 N.W.2d 143 (1982). In that case, the Court judicially abrogated the common law "year and a day" rule applied to time of death in murder cases, but refused to apply the new rule retroactively. The Court stated:
416 Mich. at 395-96, 331 N.W.2d at 147-48. The Court held that applying the abrogation of the "year and a day" rule retroactively would violate the defendant's constitutional rights.
In State v. Longino, 109 Miss. 125, 67 So. 902 (1915), the Supreme Court of Mississippi held that a judicial change of construction of a criminal statute could not be applied retroactively. The court said:
109 Miss. at 133-34, 67 So. at 903-04. The Court relied on State v. O'Neill, 147 Iowa 513, 126 N.W. 454 (1913), and quoted from that opinion:
109 Miss. at 133, 67 So. at 903. Mississippi is therefore in accord with many jurisdictions which have adopted this principle.
We find no Alabama cases directly on point. We now hold, however, that under the facts of this case, it would be a violation of Alexander's due process rights to apply the new interpretation of the escape statute to the circumstances of his case. We are not to be interpreted as either agreeing or disagreeing with the construction given to Code 1975, § 13A-10-31, by the Court of Criminal Appeals, as we have not reached that issue.
For the above reasons, we reverse the judgment of the Court of Criminal Appeals.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur. | July 12, 1985 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.