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153f03a7-f76e-4c49-84db-2c93cdd342b7 | Wallace by Inman v. Campbell | 475 So. 2d 521 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 521 (1985)
Tammy WALLACE, an incompetent suing by her guardian, next friend and mother, Rhonda E. INMAN
v.
David CAMPBELL and the City of Andalusia.
83-680.
Supreme Court of Alabama.
August 23, 1985.
Frank J. Tipler, Jr. of Tipler & Tipler, Andalusia, for appellant.
Abner Powell III of Powell, Powell, Pearson & McKathan, Andalusia, for appellee.
FAULKNER, Justice.
This is an appeal from a judgment entered on a jury verdict in favor of the defendants, David Campbell and the City of Andalusia, in a personal injury action brought on behalf of Tammy Wallace. Plaintiff's appeal is bottomed on the proposition that the trial court erred in refusing to grant her motion for a new trial because a juror did not disclose on voir dire that she was a relative of the Covington County Sheriff. We agree and reverse with instructions to grant the motion for a new trial.
Tammy Wallace was a passenger in an automobile driven by one Ricky Bush on the night of July 10, 1982. On that evening *522 David Campbell, a police officer for the City of Andalusia, observed Bush's automobile veer over the center line of the roadway on which it was traveling. Campbell turned on his siren and flashing lights and began pursuing Bush's automobile. Bush sped up and there ensued a high-speed chase, which ended in a crash at a police road-block in Red Level, Alabama. Tammy was severely injured. She has not regained consciousness since the accident.
During voir dire the prospective jurors were asked the following question:
One of the jurors, Cynthia Gail Richburg, whose maiden name was Cynthia Harrell, failed to respond to the above-stated question despite the fact that she is related to Don Harrell, the sheriff of Covington County.
The proper inquiry on a motion for new trial based on improper or non-existent responses to voir dire questions is whether the response, or lack of response, resulted in "probable prejudice" to the movant. Cavalier Insurance Corp. v. Faulk, 368 So. 2d 6, 8 (Ala.1979); Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330, 335 (1970). In Cavalier Insurance Corp., two jurors failed to disclose on voir dire that they had been represented by one of the law firms involved in the trial in which they served as jurors. During voir dire the venire was asked if any of its members had "ever been represented in any matter by any of the three named members of the law firm in question." The two jurors, a husband and wife, failed to inform counsel that one of the lawyers in question had once filed a suit on their behalf. In that case we ruled that the trial court had abused its discretion in failing to grant the motion for a new trial.
Not knowing that a potential juror is a relative of the county sheriff would probably result in prejudice to the plaintiff in an action against a local policeman when the sole issue litigated was the propriety of a high-speed automobile chase by a police officer seeking to make an arrest. It is highly unlikely that the plaintiff's lawyer would have chosen not to strike Mrs. Richburg had he known of her kinship to Sheriff Harrell. We are aware that not every failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial. See, e.g. Martin v. Mansell, 357 So. 2d 964 (Ala.1978); Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970). However, when the prejudice to the movant is probable, we must in fairness reverse the case and remand it for a new trial. Cavalier Insurance Corp..
The plaintiff also complained that on the morning of the closing arguments a great number of armed, uniformed police officers chose to "exercise their special right as officers of the Court" to "fill the seats" inside the rail opposite the jury. On the motion for new trial, several officers who had been present during the trial made various estimates as to how many policeman were in attendance. One of the officers testified that he and other officers had gone into the jury's recess room during a recess, though he denied discussing the case while in the jury's presence.
The plaintiff argues that, given the nature of the case, arising as it did out of a policeman's execution of his duties, in which police officer and the City of Andalusia were defendants, the presence of unusual numbers of uniformed police at bar during the trial tended to intimidate the jury and to prejudice her case. Since the case must be reversed on other grounds, it is unnecessary for us to consider the plaintiff's arguments regarding the alleged misconduct of police officers. Without commenting on the propriety of allowing the actions of the sort complained of, we simply endeavor to point out that the court should strive to maintain an atmosphere of impartiality and fairness during the retrial of the case.
*523 REVERSED AND REMANDED WITH INSTRUCTIONS.
JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, J., dissent, with opinion by TORBERT, C.J.
TORBERT, Chief Justice (dissenting).
I respectfully dissent. The case of Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970), sets forth the standard against which the trial court tests allegedly improper responses to voir dire inquiries and the standard which this Court must apply in reviewing the trial court's rulings in those instances. In Freeman this Court held:
286 Ala. at 166-67, 238 So. 2d at 335-36.
More recently, this Court has reaffirmed the tenets expressed in Freeman in its decisions in Curry v. Lee, 460 So. 2d 1280 (Ala.1984); Estes Health Care Centers, Inc. v. Bannerman, 411 So. 2d 109 (Ala. 1982); Cavalier Ins. Corp. v. Faulk, 368 So. 2d 6 (Ala.1979); and Martin v. Mansell, 357 So. 2d 964 (Ala.1978).
At the hearing on the motion for new trial, Richburg testified as follows:
Inadvertent concealment and failure to recollect on the part of a prospective juror are pertinent factors which may be considered in a court's determination of whether the juror's lack of response to a question on voir dire resulted in probable prejudice. It seems clear, from Richburg's testimony, that inadvertence or lack of recollection was the cause of her failure to respond to plaintiff's question. I cannot conclude that the trial judge, who was present during voir dire examination and the hearing on the motion for new trial and had a chance to hear the questions and observe the attorneys and the juror, abused his discretion in denying plaintiff's motion for new trial.
MADDOX, J., concurs. | August 23, 1985 |
fc13b6ee-c100-4f59-8b1d-9cc3170a681d | Ex Parte Bush | 474 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 168 (1985)
Ex parte William Don BUSH, Jr.
(Re William Don BUSH, Jr. v. CITY OF TROY).
84-202.
Supreme Court of Alabama.
July 12, 1985.
*169 Cary L. Dozier, Troy, for petitioner.
Robert W. Barr, Troy, for respondent.
FAULKNER, Justice.
Petitioner, William Don Bush, Jr., was convicted in the Circuit Court of Pike County of driving under the influence; from that conviction he sought review in the Court of Criminal Appeals. The Court of Criminal Appeals affirmed.
The facts are fully set forth in the opinion of Court of Criminal Appeals, 474 So. 2d 164 (Ala.Crim.App.1984). Stated briefly, Officer Sam Botts of the Troy Police Department, while on patrol on January 26, 1984, observed Bush's vehicle skid through a stop sign. Stopping the car, the officer observed that Bush was unsteady on his feet, had slurred speech, and had the odor of alcoholic beverages about him. Officer Botts testified that in his opinion Bush was under the influence of alcohol. Botts arrested Bush and took him to the police station for a photoelectric intoximeter (PEI) test.
Officer Vance Ventress of the Troy Police Department administered the PEI test. Officer Ventress testified he was certified by the State Board of Health to operate the PEI machine and that in conducting the test he had followed the procedures set by the State Board of Health. He also stated that the Troy Police Department had designated the PEI test as its means of testing. Ventress further testified that the machine was functioning properly and that the machine had been checked or calibrated the day before the test was given. Officer Ventress presented a copy of the log sheet showing that the machine had been checked by Sergeant Merritt of the Department of Public Safety on January 25, 1984. Ventress also testified that the result of the PEI test showed Bush's blood alcohol content to be .14 grams percent. Bush was convicted of driving under the influence and was sentenced to six months in the municipal jail.
Bush argues two things as error: (1) that the results of the PEI test were improperly admitted into evidence, since the person who calibrated the machine the day before the test was given was not shown to be certified by the State Board of Health; and (2) that the PEI log sheet was improperly admitted into evidence because it was not properly qualified as a business record.
Section 32-5A-194, Code of Alabama 1975, allows the admissibility of evidence of the amount of alcohol or controlled substance in a person's blood, urine, breath, or other bodily substance. A proper predicate must be laid for the admissibility of such evidence, however. Myrick v. Montgomery, 54 Ala.App. 5, 304 So. 2d 247, cert. denied, 293 Ala. 768, 304 So. 2d 248 (1974). This predicate may be established by showing, first, that the law enforcement agency has adopted the particular form of testing that was in fact used. Alabama Code 1975, § 32-5A-192(a). See Estes v. State, 358 So. 2d 1050 (Ala.Crim.App.), cert. denied, 358 So. 2d 1057 (Ala.1978). Second, there must be a showing that the test was performed according to methods approved by the State Board of Health. Alabama Code 1975, § 32-5A-194(a)(1). See Commander v. State, 374 So. 2d 910 (Ala.Crim. App.1978). This may be proved by the introduction of the rules and regulations the officer followed while administering the test and the officer's testimony that he did, in fact, follow those rules when he administered the test in question. Parker v. State, 397 So. 2d 199 (Ala.Crim.App. 1981), Patton v. City of Decatur, 337 So. 2d 321 (Ala.1976). Third, there must be a showing that the person administering the test has a valid permit issued by the State Board of Health for that purpose. Alabama Code 1975, § 32-5A-194(a)(1).
All three requirements for the admission of the test results were satisfied at trial. Bush, however, urges that another element must be shown to establish the predicate for admissibility of the PEI test results: that the person who calibrates the PEI instrument be shown to have been certified by the State Board of Health and that such calibration was conducted or performed according to methods adopted by the State Board of Health. Bush argues that the failure to show the qualifications of Sergeant Merritt, who calibrated the machine, was reversible error. The Court of Criminal Appeals held that there is no requirement that the State prove that the person who checked and calibrated the machine was certified to do so by the Board of Health. We agree.
Nowhere in Alabama Code 1975, § 32-5A-194 or § 32-5-192(a), do we find the requirement that the person who merely calibrates the machine must be certified by the State Board of Health. Bush contends this requirement should be inferred, arguing that it is illogical to require certification of the person administering the test, but not the person who calibrates the machine. We are not persuaded by this argument.
The methods and procedures set by the State Board of Health require the certified operator who administers the PEI test to follow a checklist every time the test is given. This checklist includes the procedure for calibration of the photoelectric intoximeter. Rules of State Board of Health Administration, Rule 420-1-1-.01(4)(Appendix A). Thus, the machine's final calibration is performed by the administrator of the test, who must be shown to be certified. To require that the person who had previously calibrated the machine be shown to be certified is therefore superfluous, since the accuracy of the test results is dependent upon the final calibration by the administrator of the test, and not the previous calibrator. Likewise, since the administrator of the test must be shown to have followed the methods required by the State Board of Health in the final calibration of the machine, it is equally superfluous to require a showing that the previous calibration was performed according to those methods. We therefore reject this additional requirement for the laying of a predicate for the admission of PEI test results into evidence.
Bush also contends there was error in the admission into evidence of a copy of the PEI log sheet without a proper foundation being laid qualifying it as a business record. Under the "Alabama Business Records Act," any record of an act made in the regular course of business may be admitted *171 into evidence as proof of that act. Alabama Code 1975, § 12-21-43. Record books of PEI tests are generally admissible into evidence under the business records exception to the hearsay rule to show the machine had been properly calibrated and certified and was operating properly at the time the test was given. Parker v. State, 397 So. 2d 199 (Ala.Crim.App.), writ denied, 397 So. 2d 203 (Ala.1981). See also Bagony v. City of Birmingham, 365 So. 2d 336 (Ala.Crim.App.1978). However, Alabama Code 1975, § 12-21-43, requires that a proper predicate be laid before such records are admitted. Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695 (1974). Here, Officer Ventress did not testify that the log was certified or had been made regularly in the course of business. Thus, the State did not lay the proper predicate for admissibility of the log sheet as a business record.
In its opinion, the Court of Criminal Appeals held that testimony that the PEI log sheet was notarized and stayed with the PEI machine at all times gave rise to an inference that this record was made and kept in the regular course of business. We do not agree. We hold it was error to admit the log sheet into evidence.
However, testimony apparently illegal upon admission may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred. Childress v. City of Huntsville, 459 So. 2d 1008 (Ala. Crim.App.1984); Yelton v. State, 294 Ala. 340, 317 So. 2d 331 (1974). Error may be rendered harmless by prior evidence. Rust Engineering Co. v. State, 286 Ala. 589, 243 So. 2d 695 (1971). Officers Botts and Ventress testified substantially to the same facts as were found on the log sheet. Therefore, the admission of the log sheet into evidence was harmless error.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY, and ADAMS, JJ., concur. | July 12, 1985 |
8a450dce-1893-48c9-87d0-081430360bbf | Brewton v. Ala. Farm Bureau Mut. Cas. Ins. | 474 So. 2d 1120 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1120 (1985)
John K. BREWTON and Shirley C. Brewton
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
84-195.
Supreme Court of Alabama.
August 9, 1985.
James E. Hart, Jr., Brewton, and W.E. Garrett, Atmore, for appellants.
Reggie Copeland, Jr. and Joe Carl Jordan of Nettles, Barker & Janecky, Mobile, for appellee.
BEATTY, Justice.
Appeal by defendants John and Shirley Brewton from a summary judgment in favor of the plaintiff, Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau), in Farm Bureau's action for a declaratory judgment and on the defendants' counterclaim for the policy's proceeds and for damages based upon fraudulent misrepresentation. We affirm in part, reverse in part, and remand.
*1121 Mrs. Angeline Browning owned a home, its contents, and one acre of land on which these were located, near Huxford in Escambia County. Mrs. Browning and Mrs. Brewton went to Farm Bureau's agent in Brewton, Escambia County, to obtain a fire insurance policy. The policy was issued on July 9, 1982, in the name of the Brewtons.
Mrs. Browning died intestate in December 1982, and was survived by five sisters who were her heirs.
The dwelling and its contents were destroyed by fire on January 27, 1983. The Brewtons made a claim under the policy and filed a proof of loss form which disclosed that at the time of loss those having an interest in the property were the "Heirs of Angeline Browning."
Farm Bureau filed this declaratory judgment action alleging five counts. Count one alleged that the Brewtons had made a false claim of an ownership interest in the property on their application for insurance. Count two alleged that subsequent to the application Mrs. Brewton had falsely represented that she and her husband had been granted the property by Mrs. Browning. Count three alleged that after the fire Mr. Brewton falsely represented that he and his wife owned the home and its contents. Count four alleged that the Brewtons had no insurable interest. Count five alleged that the Brewtons had breached material provisions of the policy as a result of their misrepresentations.
In their counterclaim against Farm Bureau, the Brewtons alleged that the correct ownership of the property was made known to the agent, who, with this knowledge, stated that he would issue the policy, and that in reliance on this representation they purchased the policy. Thus, the Brewtons assert that Farm Bureau waived the requirement of title or is estopped to assert their lack of title. Farm Bureau denied these allegations.
Farm Bureau moved for summary judgment "on the grounds that there is no genuine issue as to any material fact with regard to the fact that the defendants had no insurable interest in either the dwelling or the contents in question." This motion was based upon the pleadings on file and the depositions of the Brewtons. The Brewtons' response to Farm Bureau's motion included depositions of Robert M. Woodall, the Farm Bureau agent. The trial court determined that Farm Bureau was entitled to judgment as a matter of law and that no genuine issue of fact existed with regard to defendant's counterclaim; accordingly, the trial court granted Farm Bureau's motion for summary judgment. It is from this judgment that the Brewtons appeal.
Mrs. Brewton deposed that at the time she applied for the policy of insurance, Mrs. Browning owned the home and its contents. Mrs. Brewton testified that she informed the agent Mr. Woodall that she wanted insurance on the house and that Mrs. Browning told him that she owned the house and was "going to will the house over" to the Brewtons. According to Mrs. Brewton, she told Mr. Woodall that Mrs. Browning would be "living in the home long as she lived," but that they, the Brewtons, would be responsible for the insurance premiums "and [for the policy] to be put in our name." She did not remember conversing with Mr. Woodall again, but left a check for the premium with Mrs. Browning, which was picked up later at the house by Mr. Woodall.
Mr. Robert M. Woodall, the Farm Bureau agent, testified by deposition that he filled out the application form according to Mrs. Brewton's information, and that Mrs. Brewton gave him a check for the premium. Mr. Woodall also testified that Mrs. Brewton represented to him that she and her husband were the sole owners of the property and that Mrs. Browning was a tenant. He related a telephone conversation he had with Mrs. Brewton following her visit to his office. According to Mr. Woodall, Mrs. Brewton verified that she and her husband were owners.
Both Mr. and Mrs. Brewton testified that Mrs. Browning left no will and that prior to her death she had not deeded the property to them. Mr. Brewton testified that neither *1122 he nor his wife had lived in the house after Mrs. Browning's death. The Brewtons apparently had not lived there prior thereto.
Plaintiffs argue that they had an insurable interest in the premises insured because, as Mrs. Brewton explained, Mrs. Browning, the owner, had raised Mr. Brewton and had told them that she would will the property to them, and thus Mr. Brewton had a "reasonable expectation" that he would receive title to the property. These facts, the plaintiffs maintain, together with the alleged fact that the insurer issued the policy knowing that the Brewtons did not hold the legal title at the time of issue, establish an "insurable interest" in the Brewtons.
These provisions are "[m]erely declaratory of those legal principles which have long governed the concept of insurable interest in this State." National Security Fire & Casualty Co. v. Hester, 292 Ala. 592, 596, 298 So. 2d 236, 239 (1974).
The Brewtons rely upon Hester, supra, as authority for the claim that they had an insurable interest because of a "reasonable expectation" of receiving title to the Browning property. It must be pointed out that in Hester the insureds were vendees of real property who had taken actual possession of a house and land under a contract of sale, had made a partial payment of the sale price, and had made substantial improvements to the insured premises. Thus, and in spite of the argument of the insurer that the contract between the vendor and vendee placed the risk of loss upon the vendor, this Court held that the vendee had an insurable interest. Commenting upon the theories of waiver and estoppel as applied to the insurer, this Court stated:
See also American Equitable Assurance Co. v. Powderly Coal & Lumber Co., 225 Ala. 208, 142 So. 37 (1932), holding that an estoppel must be supported by an insurable interest, thus invalidating the dictum contra expressed in American Ins. Co. v. Newberry, 215 Ala. 587, 112 So. 195 (1927). Indeed, as the Court of Civil Appeals observed in National Security Fire & Casualty Ins. Co. v. Brannon, 47 Ala.App. 319, 253 So. 2d 777, cert. denied, 287 Ala. 737, 253 So. 2d 782 (1971):
That opinion analyzed the "insurable interest" found in other cases, e.g., North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So. 2d 764 (1951) (finding insurable interest in husband who operated store in building owned by husband and wife as tenants in common); and Howard F. Insurance Co. v. Chase, 72 U.S. [5 Wall.] 509, 18 L. Ed. 524 (1866) (one of five trustees of church indebted to church had insurable interest because he had secured *1123 policy to secure his indebtedness owed for another).
And in Fidelity Phenix Fire Ins. Co. of N.Y. v. Raper, 242 Ala. 440, 6 So. 2d 513 (1941), this Court found that one who was at most a tenant at sufferance, having no right which he could enforce in the insured property, had no insurable interest, adding:
See also Pacific National Fire Ins. Co. v. Watts, 266 Ala. 606, 97 So. 2d 797 (1957) (original mortgagor who remained liable on the mortgage even though the property had been sold had an insurable interest in the property because the insurance became the primary fund for payment of the mortgage).
Applying these principles to the case at bar, it is clear that the Brewtons here had no insurable interest in Mrs. Browning's property. They had no title to the property and no actual or constructive possessory interest in it. Neither was related to Mrs. Browning. They knew she had sisters living. They knew that Mrs. Browning owned the house and its contents; thus they did not suffer any economic loss from their destruction. The fact that the Brewtons expected Mrs. Browning to make a testamentary disposition of the property to them because she had raised Mr. Brewton, and thus in gratitude they sought to bear the expense of insuring the property, does not constitute an insurable interest under our authorities. Mere love and affection for the true owner, though laudable, do not constitute the required insurable interest. Brannon, supra; § 27-14-4(b).
Having found that the Brewtons had no insurable interest in the premises, we conclude that the doctrines of waiver or estoppel do not apply. Accordingly, the trial court was correct in granting summary judgment in favor of Farm Bureau on the Brewtons' claim for the policy's proceeds and on Farm Bureau's claim that the policy was void.
We reach a different result, however, on the Brewtons' claim based upon fraud.
The elements of a claim for fraud are found in Code of 1975, § 6-5-101, and recited in Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981):
These allegations were supported by the deposition of Mrs. Brewton. Mr. Woodall, as the agent of Farm Bureau, directly disputed Mrs. Brewton's version of the conversation in his office and her denial of a later telephone conversation.
Payment of the premium by Mrs. Brewton, which was shown here, has been held to be proof of the necessary damage. Old Southern Life Ins. Co. v. Woodall, 348 So. 2d 1377 (Ala.1977).
As stated in Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981):
See Rule 56, A.R.Civ.P.
The summary judgment against the Brewtons on their fraud claim, therefore, was error, and the cause must be remanded for further proceedings.
The judgment is affirmed in part, reversed in part, and remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and FAULKNER, SHORES and ADAMS, JJ., concur. | August 9, 1985 |
a2f9ab9f-13ba-4133-b0d4-a4c2e3bc6111 | Bettis v. Bettis | 475 So. 2d 847 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 847 (1985)
Valda M. BETTIS, et al.
v.
Dandy B. BETTIS, et al.
83-1175.
Supreme Court of Alabama.
July 26, 1985.
Rehearing Denied September 13, 1985.
*848 Lee B. Williams, Grove Hill, for appellants.
Allan Nathanson, Tuskegee, for appellees.
BEATTY, Justice.
This is an appeal by plaintiffs from a judgment entered in favor of the defendants in an action seeking to have determined, among other things, plaintiffs' intestate shares of a certain 80-acre tract of land situated in Macon County, Alabama. We affirm.
The facts of this case are undisputed and were stipulated at trial. Roseal Bettis died intestate on October 29, 1975. He was survived by his widow, Dandy B. Bettis (Maxwell), and their minor son, Ross Bettis, the defendants herein, as well as two other minor children born of a previous marriage, Valda Bettis and Roseal Bettis, Jr., the plaintiffs herein. At the time of his death, Roseal Bettis owned, among other property, an 80-acre tract of land in Macon County which was subject to a mortgage given to C. Baxter Dean.[1] The property had an equity value of $9,000 at the time of Roseal's death.
Following Roseal's death, a final payment was made on the mortgage on November 8, 1975. Shortly thereafter, Dandy Bettis went to see Dean to discuss getting the property transferred to her. At that time, or shortly thereafter, it was agreed that Dean would foreclose on the mortgage, attempt to buy in the property at the foreclosure sale, and then turn around and resell it to Dandy for the mortgage balance at the same rate of interest.
On February 23, 1976, Dean purchased the property at the foreclosure sale, and four days later, on February 27, 1976, *849 Dean and his wife executed a warranty deed conveying the property to Dandy. At her expense, Dandy's attorney handled the foreclosure proceedings for Dean and prepared the foreclosure deed. He also prepared the mortgage note Dandy gave Dean as well as the warranty deed executed by Dean and his wife to Dandy. That deed contained the following exception:
Some two and one-half years later, Dandy sold the timber on the 80-acre tract for $16,594, $12,594 of which she applied to the note and mortgage held by Dean, and the remaining $4,000 she kept for her personal use.
Some seven years after the foreclosure and subsequent purchase by Dandy Bettis, Valda Bettis and Roseal Bettis, Jr., a minor by his next friend and mother, Mildred Bettis, filed this action on April 22, 1983, naming as defendants Dandy Bettis and Ross Bettis. Their complaint, together with the first amendment thereto, alleged that the purchase by Dandy "constitute[d] a redemption for all the joint owners of the aforesaid described real estate which includes the Plaintiffs and the Defendant Ross Bettis."
In their complaint, the plaintiffs sought an accounting for the timber cut and also sought to compel Dandy to allow them to restore their interests in the property by contributing their proportionate share toward the cost of redemption. They further alleged that the pre-foreclosure agreement "arranged and orchestrated" by Dandy "constituted a conspiracy ..., a sham and a subterfuge to deprive Plaintiffs of their interest in said real estate ... while both were minor children," seeking compensatory and punitive damages. A jury was demanded; however, the trial court granted the defendants' motion to strike the jury demand. The trial court also granted the defendants' motion for summary judgment eliminating the damages aspect of plaintiffs' claim, but denied the motion as to plaintiffs' continued right of redemption. Plaintiffs filed a second amendment to their complaint; however, no issues with respect to the claims and allegations asserted therein have been raised in this appeal. In due course, guardians ad litem were appointed for minor plaintiff Roseal Bettis, Jr., and minor defendant Ross Bettis, and a bench trial was held on the remaining issues. By order dated May 22, 1984, judgment was entered for the defendants. Because of its comprehensive clarity, the order of the trial court is set out in its entirety below:
It is from this order that plaintiffs appeal, raising basically two issues: First, was the foreclosure of the mortgage valid, and, if so, are plaintiffs entitled to redeem? Second, were plaintiffs entitled to a jury trial on the matter of a conspiracy to deprive plaintiffs of their inheritance?
In their brief and in the stipulation of facts, the plaintiffs concede that the procedure followed by the mortgagee in foreclosing the mortgage on the 80 acres technically complied with the law and "that there was no attempt by any of the parties or anyone involved in the said foreclosure sale to in any way influence the price to be bid at the said foreclosure sale, and that said foreclosure sale was open to all members of the public without restraint or duress." The plaintiffs, nevertheless, contend that the foreclosure sale is void "because of the actions of the widow in initiating the foreclosure by conspiracy with the mortgagee for the purpose of depriving her step-children of their inheritance."
In their argument, the plaintiffs imply that, because Dandy Bettis knew of their existence and could have easily ascertained their whereabouts, she was under some duty to give them actual notice of foreclosure. This claim can be characterized as a claim of fraudulent concealment or an attempt to disaffirm or have the foreclosure set aside based on fraud, as was done in the case of First National Bank of Opp v. Wise, 235 Ala. 124, 177 So. 636 (1937). Relief under either of these theories turns on the existence of some relationship or set of circumstances that gives rise to a duty. The existence of a *851 duty is a question of law for the trial court. Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So. 2d 496 (Ala.1984); Hand v. Butts, 289 Ala. 653, 270 So. 2d 789 (1972). As previously indicated, the trial court entered summary judgment against the plaintiffs on their conspiracy claim. We conclude that summary judgment was correct because the plaintiffs failed to prove the defendants owed them any legal duty under the circumstances.
As noted by the trial court, the plaintiffs elected not to make Baxter Dean, the mortgagee, a defendant in this case. In First National Bank of Opp v. Wise, supra, the widow and minor heirs of the deceased mortgagor brought an actions against the mortgagee bank seeking to have a foreclosure sale, which had been held immediately after the death of the mortgagor, set aside on the basis of fraud. The Court in Wise held that, because there were circumstances creating a relation of trust and confidence between the mortgagor and mortgagee, fraud committed by the mortgagee in connection with the foreclosure sale would vitiate the sale in favor of the mortgagor's heirs. The Court in Wise further held:
See also Randolph v. Vails, 180 Ala. 82, 60 So. 159 (1912), in which the Court held that, where the administrator of the mortgagor's estate, together with a son and heir of the mortgagor, fraudulently conspired to procure the sale of the mortgagor's land by the mortgagee, so that they could subsequently purchase the land for less than its value, the minor heirs of the mortgagor were not barred from seeking to disaffirm the sale and to have the foreclosure sale and subsequent purchase by the administrator set aside even nine years after the sale, because the administrator was under a duty to act for the benefit of all the intestate mortgagor's heirs.
These cases are dissimilar to the case at bar in several important respects. First, this is not an action against the mortgagee seeking to disaffirm the foreclosure sale. Second, the plaintiffs have stipulated that the foreclosure proceedings and sale were conducted in accordance with the law, without any undue influence, restraint, or duress. Third, the plaintiffs have failed to show, in fact or in law, that the defendant, Dandy Bettis, owed them a legal duty. In Dinkins v. Latham, 202 Ala. 101, 106, 79 So. 493, 498 (1918), the Court held that "In a valid foreclosure sale under the powers contained in a mortgage, there is no field for the operation of the doctrine of disaffirmance by a minor affected thereby, and redemption must be effected within the period provided by statute." (Emphasis added.) We agree with the trial court that there is no case establishing a fiduciary responsibility on the part of a widow to her deceased husband's children by a previous marriage.
During the trial below, plaintiffs' counsel conceded that they were not attempting to establish fraud per se:
However, based on their arguments in their brief, it appears that plaintiffs may be indirectly claiming that the defendant, Dandy Bettis, committed fraud by suppressing a material fact which she was, somehow, obligated to communicate to them. Such a claim would arise under Code of 1975, § 6-5-102, which provides:
In Berkel & Co. Contractors, Inc. v. Providence Hospital, supra, at 505, this Court held that summary judgment was proper where the plaintiff failed to prove a duty. In so holding, this Court applied the general rules applicable under the statute with respect to silence:
The plaintiffs in this case have failed to prove even a scintilla of evidence that would support a finding that a confidential relationship existed between themselves and the defendants. As for any claim that the "particular circumstances" of this case warrant the imposition of a duty, we conclude the circumstances of this case do not.
The first factor, relationship of the parties, does not support a finding of a duty. There is no evidence to indicate that a relationship existed between the parties. Even though the plaintiffs were technically Dandy Bettis's step-children, there is nothing in the record to indicate that she had ever undertaken to act as their mother or even in a motherly fashion toward them to the extent that they could expect that she would look out for their interests. To the contrary, under the circumstances of this case, it may be said that the interest of Dandy Bettis is adverse to those of the plaintiffs, thereby negating any implication of a duty. See Pate v. Perry's Pride, Inc., 348 So. 2d 1038 (Ala.1977). Nor can we say the second factor, the value of the particular fact, supports a finding of a duty. There is no claim by plaintiffs that, had they been given actual notice of the foreclosure, they would have sought to purchase at the foreclosure sale or attempted to redeem the property within the requisite time. (See discussion ante.) The reasonable inference is that had it been important or valuable to the plaintiffs (or to those who were in the position to protect the plaintiffs' interests in view of their minority, such as their mother or legal guardian), to know the status of the property owned by their father at the time of his death, they would have and could have discovered that the mortgage on the 80-acre tract was being foreclosed. Furthermore, there is an absence of any evidence of any active attempts by the defendants to conceal these facts from the plaintiffs.
The final factor, the relative knowledge of the parties, may, at first glance, seem to call for a finding of a duty in view of the *853 fact that it was at Dandy's suggestion that Dean agreed to proceed with foreclosure. Nevertheless, the notice required by law to be given for foreclosure, i.e., publication for three consecutive weeks, etc., was given. In view of the stipulations agreed to by plaintiffs with respect to the propriety of the foreclosure sale, we cannot say that the superior knowledge of the defendant imposes a duty. Nor can we say that, as a matter of policy, the minority of the plaintiffs is a circumstance sufficient, in and of itself, to categorize this situation as one in which a duty should be imposed on the defendant. After all, the defendant was not acting as the administrator of Roseal Bettis's estate, nor was she in the position of an heir.[2] Furthermore, in an effort to have their interests protected, the plaintiffs or their guardian could have applied for letters of administration pursuant to Code of 1975, § 43-2-40, et seq. We therefore agree with the trial court that no duty exists, and conclude that summary judgment was appropriate under any theory. That being the case, plaintiffs were not entitled to go to a jury.
Plaintiffs alternatively argue that the trial court erred in its finding that Dandy Bettis purchased as a stranger to the title. They further contend that she, in fact, redeemed the property, and that such redemption inured to the benefit of all the heirs. Thus, they assert that they are now entitled to contribute their proportionate share toward redemption.
It is axiomatic that the findings of a trial court sitting without a jury are entitled to a presumption of correctness and will not be disturbed on appeal if supported by evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous or manifestly unjust. Ala. Digest, Appeal and Error, Key No. 931(1). Our review of the record indicates that there is indeed evidence to support the trial court's finding that Dandy Bettis purchased as a stranger to the title. Aside from the fact that there is no indication that Dandy attempted to strictly comply with the redemption statutes (see §§ 6-5-234 and -235), it is significant that the deed from the mortgagee/foreclosure purchaser, Baxter Dean, to Dandy contained a clause stating that the "property herein conveyed is subject to the statutory right of redemption from foreclosure." This clause, in fact, protected the right of the plaintiffs to redeem from Dandy within one year. Because Dandy had priority of right under § 6-5-231, a redemption by Dandy would have cut off the plaintiffs' right to redeem the property.
Furthermore, the trial court correctly concluded that "[i]t is immaterial whether in doing so [Dandy] was purchasing the property as a stranger to the title or redeeming the property." Dandy argues that, because the plaintiffs stipulated she had no interest in the property, they cannot now maintain that she, in fact, redeemed the property, and claim the right to contribute. We note, however, that it is not the plaintiffs' stipulation that Dandy had no dower interest in her late husband's property that causes their theory of contribution to fail, for a property interest is not a requirement to the exercise of the statutory right of redemption. See Malone v. Nelson, 232 Ala. 243, 167 So. 714 (1936); and Long v. King, 233 Ala. 379, 171 So. 738 (1936).
While a property interest is not a prerequisite to the exercise of the statutory right of redemption, nevertheless, a property interest is a prerequisite for allowing contribution by those who were co-tenants in the property prior to foreclosure, absent some duty owed the co-tenants by the redemptioner. Only a redemption by a co-tenant of the property restores legal title in favor of the other co-tenants, thereby allowing the non-redeeming co-tenants to rehabilitate their interests by contributing, within a reasonable time, their proportionate *854 share of the purchase price. The inchoate right of the non-redeeming co-tenants to contribute their proportionate share toward the cost of redemption paid by a redeeming co-tenant arises from the general rule that one co-tenant will not be permitted in equity to acquire title to the common property, solely for his or her own benefit to the exclusion of the co-tenants. See generally Dominex v. Key, 456 So. 2d 1047, 1060-61 (Ala.1984), and cases cited therein; Reed v. Dunn, 392 So. 2d 1173 (Ala.1981). Thus, a redemption by Dandy Bettis would not have inured to the benefit of the heirs of Roseal Bettis, because the widow was not a co-tenant in the property with the plaintiffs prior to foreclosure.
Nor does the plaintiffs' minority at the time of the foreclosure toll the running of the time allowed by the statute for exercising their statutory right of redemption as the mortgagor's children. That time is one year under Code of 1975, § 6-5-230:
In Mewburn v. Bass, 82 Ala. 622, 2 So. 520 (1887), cited recently in Whitson v. Baker, 463 So. 2d 146, 149 (Ala.1985), the Court held that the right to redeem "is purely a statutory right, and, to reap its benefits, it must be claimed within the two years. The three-years exceptions in favor of minors, etc., has no application to this statutory exemption." 82 Ala. at 626, 2 So. at 522.
For the foregoing reasons, the judgment below is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] Roseal Bettis also had an equity interest in other property mortgaged to the Alabama Exchange Bank. This mortgage was also foreclosed and Dandy Bettis purchased the property at the foreclosure sale. In the second amendment to their complaint, the plaintiffs stated a claim with respect to this property. Nevertheless, at trial the plaintiffs limited the subject matter of this suit to the 80-acre tract:
"[PLAINTIFFS' COUNSEL]: When you say subject property you mean property to be redeemed.
"[DEFENDANTS' COUNSEL]: Subject matter of this lawsuit.
"THE COURT: Is that the 80 acres?
"[PLAINTIFFS' COUNSEL]: That's the 80 acres, Your Honor."
[2] The plaintiffs stipulated that Dandy Bettis had no dower interest or any other interest in the estate of Roseal Bettis. | July 26, 1985 |
61a10da0-e6fc-4312-b184-97db7399849b | Shelby v. Zayre Corp. | 474 So. 2d 1069 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1069 (1985)
Judy SHELBY
v.
ZAYRE CORP.
84-351.
Supreme Court of Alabama.
July 19, 1985.
John H. England of England & Bivens, Tuscaloosa, for appellant.
Wilbor J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
MADDOX, Justice.
This is a termination of employment case.
Plaintiff-appellant Judy Shelby applied for work at a Zayre department store in Tuscaloosa, by filling out an application for employment which read, in pertinent part, as follows:
Shelby then interviewed with John Luno, an assistant manager at the Zayre store, and she testified that he made a representation of permanent employment:
Shelby quit her job with Stein's Shoe Store and commenced her employment with Zayre. Shelby was employed at Zayre from October 17 until October 24, 1983, when her employment was terminated. She filed a two-count complaint, alleging breach of an oral contract for permanent employment and alleging fraud. Zayre filed a motion for summary judgment, which was granted. Shelby pursues this appeal on count two of her complaint and asserts that Zayre, through its agent, John Luno, made false representations of permanent employment, which Luno knew were false, and which Shelby relied on to her detriment in quitting her job with Stein's Shoe Store.
Here, both parties agree that Luno did not have authority to make the alleged misrepresentation. Thus, the issue presented for our review is whether Zayre, as a principal, can be held liable for the fraudulent misrepresentations of its agent, made during the course of the agent's employment, even though the agent did not have the authority to make the representations.
Shelby cites District 20, United Mine Workers of America v. Sams, 287 Ala. 312, 251 So. 2d 613 (1971), for the proposition that a principal can be held liable to a third party for the fraud of its agent if the act was committed in the course of the agent's employment, where others rely on the fraudulent misrepresentation to their detriment. Sams involved an action by a union member against the union for fraud and deceit where the union member was told that he would be eligible for a pension if he kept his dues paid until he was sixty years of age. The payment of dues did not, in fact, entitle him to pension benefits at age sixty.
This Court quoted, with approval, the following language from Storey on Agency:
287 Ala. at 319, 251 So. 2d at 619.
In Sams defendant argued that plaintiff was charged with notice as a member of the union and "the agent of the [union] lacked authority for the act done since the [by-laws] of the [union were] silent with respect to the act allegedly done." This Court held in favor of union member Sams, and applied its reasoning from the earlier case of Supreme Lodge, Loyal Order of Moose v. Kenny, 198 Ala. 332, 73 So. 519 (1916), wherein the Court had noted "that the very existence of the lodge depended upon the organization ... in all of its works, and hence it was liable for the torts of its agents acting in the course of employment, authorized or not." 287 Ala. at 319, 251 So. 2d at 619.
This Court has found no cases which apply the principle set forth in Sams to employment-at-will cases. We find that, based on the facts of this case, this principle is not applicable here. In the instant case, Shelby signed an employment application which specifically stated that employment could be terminated "with or without cause, and with or without notice, at any time, at the option of either the company or [the employee]." In her deposition she stated that she read the application and understood it, and knew that she was not hired for a definite period of time. Since Shelby signed and understood the above statement, we conclude, based on the surrounding circumstances, that she would not have been justified in relying on Luno's false statement, even assuming he made the statement alleged, and thus, that it cannot be said that she relied on a misrepresentation by Luno to her detriment. Zayre would not be liable, in this instance, for the alleged act of its agent acting without authority.
The general rule is that the existence and scope of an agency relationship is for the jury to determine where the evidence is in conflict. St. Paul Fire & Marine Ins. Co. v. Anderson, 358 So. 2d 151, 158 (Ala.Civ.App.1977). Here, however, it is uncontested that Luno had no authority to act, either actual or implied. We agree with the trial court that, based on the circumstances in this case, the principle set forth in Sams is inapplicable. Therefore, the trial court's judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | July 19, 1985 |
02c8c9dc-7770-4622-b947-642e6cea15df | Smith v. Bradford | 475 So. 2d 526 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 526 (1985)
Willie Jean SMITH, as mother of Willie Earl Conner, a deceased minor
v.
Ralph BRADFORD.
No. 83-1253.
Supreme Court of Alabama.
August 23, 1985.
*527 Steven D. Tipler of Tipler, Roden & Hayes, Birmingham, for appellant.
William J. Donald and William J. Donald III of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
MADDOX, Justice.
This is an action for the wrongful death of a minor.
Matthew Conner, the minor's father, brought suit for wrongful death, alleging negligence and wanton misconduct against a state trooper, defendant Ralph Bradford, who was on duty and in pursuit of a motorist at the time of the minor's death. Bradford answered the complaint, denying he was legally responsible for the minor's death. He also claimed the minor was guilty of contributory negligence. The trial court, during the course of the proceeding, granted an order substituting Willie's mother, Willie Jean Smith, as plaintiff. The case was tried before a jury, which returned a verdict in favor of Bradford. Smith appeals here, raising two issues.
First, Smith contends the trial court erred in refusing to charge the jury on wantonness. She contends that there was sufficient evidence of Bradford's wanton misconduct, and, therefore, the trial court should have charged the jury on wantonness.
We must assume that Smith is actually claiming that the trial court erred in granting a directed verdict in favor of Bradford on the wantonness count. We so treat her claim. Consequently, the standard of review is not whether there was a genuine issue of material fact, as Smith argues here, but whether there was sufficient evidence *528 to prevent a directed verdict on the wantonness count.
The following is well-established:
Herston v. Whitesell, 374 So. 2d 267, 270 (Ala.1979). See also, Rule 50, A.R. Civ.P., and Casey v. Jones, 410 So. 2d 5, 7 (Ala.1981).
Deaton, Inc. v. Burroughs, 456 So. 2d 771, 775 (Ala.1984).
The question of whether there was proof of wantonness must be determined by the facts and circumstances of each case. 456 So. 2d at 775, citing Cooper v. Watts, 280 Ala. 236, 191 So. 2d 519 (1966). In considering the question as to whether there was evidence from which the jury could find for Smith on the wantonness count in this case, we must consider the evidence most favorable to Smith. Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448 (Ala.1965).
Viewing the evidence in a light most favorable to Smith, we find the facts to be as follows:
On August 22, 1982, 13-year-old Willie Earl Conner was riding his bicycle home from the grocery store with his older brother. The boys were riding along the northbound side of Alabama Highway 69, a four-lane road, between Tuscaloosa and Moundville, Alabama. The defendant, Trooper Ralph Bradford, was proceeding southbound on Highway 69 in his patrol car. He was clocking northbound traffic with radar. He clocked a speeding vehicle and made a U-turn into the northbound lanes. He did not see the boys on their bicycles at this time.
After turning, he saw no other cars between him and the vehicle he was pursuing. He proceeded northbound without turning on his blue lights or siren, in an attempt to reduce the distance between his patrol car and the speeding vehicle, and in order to identify the vehicle.
Bradford was traveling between 80 and 90 miles per hour, when he saw reflectors approximately 300 to 500 feet in front of him. He was in the right, outermost lane when he saw reflectors which appeared to be in that lane or along the shoulder of the road. He then immediately moved over to the left innermost lane, and when it appeared that the reflectors were moving into the lefthand lane, he applied his brakes. His vehicle skidded approximately 265 feet in the left lane. Bradford, believing that he had passed the reflectors, partially released his brakes. He traveled 96 feet and then struck Willie Earl Conner and his bicycle. Willie died four days later.
The elements of wanton conduct were defined by this Court in Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797 (1972), and reiterated in Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984), as follows:
456 So. 2d at 775.
We find that there was at least a scintilla of evidence presented from which the jury could have determined that Bradford's conduct was wanton. First, Bradford acknowledged that he did not turn on his blue light, siren, or emergency flashers. Of course, a law enforcement officer, under certain circumstances, may exceed the maximum speed limit set by law. Code 1975, § 32-5A-7, provides that a law enforcement officer may "[e]xceed the maximum speed limits so long as he does not endanger life or property." This section further provides, as follows:
Second, Bradford testified that when he saw the reflectors ahead of him, he was traveling in excess of 80 miles per hour and believed himself in a hazardous and perilous situation. Third, after observing the reflectors, Bradford changed lanes and applied his brakes after "the reflection that I saw appeared to be moving to the left or into the lefthand lane." He testified: "I applied my brakes [and] at a certain point I felt that I had passed whatever the object the reflectors were on and I started letting up off my brakes at that time but I never totally let up off the brakes."
In her brief, Smith argues as follows:
We believe a jury question was presented on the issue of Bradford's wantonness, and the facts set out support Smith's contention that the directed verdict in favor of Bradford on the wanton misconduct count was erroneous.
Second, Smith contends that as to the negligence count, there was insufficient evidence to rebut the presumption that Willie, 13 years, 7½ months old, was incapable of contributory negligence and, therefore, contends that the trial court erred in submitting this issue to the jury.
A child between the ages of 7 and 14 is prima facie incapable of contributory negligence; however, he may be shown to be capable of contributory negligence by a showing that he possessed that discretion, intelligence, and sensitivity to danger which an ordinary 14-year-old child possesses. King v. South, 352 So. 2d 1346 (Ala. 1977).
We have reviewed the record and find that there is at least a scintilla of evidence that Willie possessed the maturity and sensibility of an ordinary 14-year-old. McWhorter v. Clark, 342 So. 2d 903, 905 (Ala.1977). Willie had completed the seventh grade in school and would have started the eighth grade in the fall. He had built his bicycle from scratch, collecting the parts and assembling them himself, without help. Willie rode his bike to school on the four-lane highway. Based on the foregoing, we must conclude that there is at least a scintilla of evidence that Willie possessed the discretion, intelligence, and sensitivity to danger of an ordinary 14-year-old. The judgment of the trial court is due to be affirmed on this issue.
AFFIRMED, IN PART; REVERSED, IN PART, AND REMANDED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | August 23, 1985 |
703f3256-9853-4859-a852-8c761194e273 | Jackson v. Prudential Ins. Co. of America | 474 So. 2d 1071 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1071 (1985)
Inez C. JACKSON, as Administratrix of the Estate of Andrew Jackson, Deceased
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA.
84-474.
Supreme Court of Alabama.
July 19, 1985.
*1072 William H. Saliba, Mobile, for appellant.
J. Edward Thornton, Mobile, for appellee.
SHORES, Justice.
This dispute arose out of an insurance policy which the plaintiff contends the defendant breached. The trial court found for the defendant, and the plaintiff appeals. We affirm the judgment of the trial court, which is as follows:
The dispositive issue in this case is whether the rider referred to in the trial court's order relieves the defendant from liability under the policy. In pertinent part, it reads as follows:
The plaintiff contends that the rider should be construed so that the defendants' liability on each medical bill is determined by taking each of the bills, calculating the liability of the company on that bill, and subtracting the amount paid by Medicare. Under this construction, she argues that the defendant is liable under the policy for the balance of those bills not paid by Medicare. We disagree.
Any ambiguity contained in an insurance policy must be resolved in favor of the insured. However, if a policy in its terms is plain and free from ambiguity, there is no room for construction and it is the duty of the court to enforce it as written. Likewise, the court cannot refine away the terms of a policy that are expressed with sufficient clarity to convey the intent and meaning of the parties. Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d 887 (Ala.1982).
The purpose of the rider in the present case is to prevent retired employees subject to Medicare benefits from receiving more benefits than those available for actively-working employees of Alabama Dry Dock. The language contained therein is not ambiguous. The key word is "aggregate," which according to Webster's New International Dictionary (2d ed. 1956) means the sum or total. The rider clearly means that the amount payable under the group policy is the surplus, if any, where the (a) figure (i.e., the sum or total of the benefits payable under the group policy) is greater than the (b) figure (i.e., the sum or total of the benefits paid under Medicare). See Bybee v. John Hancock Mut. Life Ins. Co., supra. Because the total benefits paid under Medicare exceed the total benefits payable under the group policy, there is no surplus and, consequently, no liability on the part of the defendant.
Other errors argued by the plaintiff are without merit. The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | July 19, 1985 |
a7c5881b-31eb-4c24-bcab-f05ea57e71e1 | Mason v. New | 475 So. 2d 854 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 854 (1985)
Charles Edward MASON
v.
Randall William NEW.
84-186.
Supreme Court of Alabama.
July 26, 1985.
Rehearing Denied August 30, 1985.
*855 D. Leon Ashford and Francis H. Hare, Jr. of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
W.J. McDaniel, William G. Gantt, and Jack Martin Bains of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee.
FAULKNER, Justice.
Charles Mason appeals from the trial court's granting of a motion in limine excluding certain evidence, and a subsequent final judgment in favor of the defendant-appellee Randall New, made final pursuant to Rule 54(b), A.R.Civ.P. We reverse.
Charles Mason was injured in a collision between his motorcycle and a truck owned by Randall New and operated by New's wife, Sandra. Mason brought an action against Sandra New for negligence and wanton misconduct in the operation of the truck, and against Randall New for negligent entrustment of the truck to Sandra.
At the trial, the News made a motion in limine to exclude any evidence that Sandra had failed her driver's license examination and had no license at the time of the accident, or that Randall had any knowledge of the same. In response to the News' motion, Mason made an offer of proof, which included the testimony of Randall New. New stated he was aware that his wife had failed her written driver's license examination three times prior to the accident. New further testified he had customarily left the keys in the truck so that Sandra could drive it if she wished, although he was not aware she was using the truck on the day of the accident. Mason also introduced a letter from the Supervisor of Records for the Driver's License Division of the Department of Public Safety, stating that Sandra had failed her written examination on three occasions prior to the accident and once after the accident.
The trial court granted the motion in limine on the grounds that, at the time of the accident, it had been thirteen months since Sandra had last failed her examination *856 and there was no evidence she had had any accidents or received any tickets during that time. The court, after concluding that Mason lacked sufficient evidence of probative value to support a negligent entrustment action against Randall, entered a final judgment in favor of Randall pursuant to Rule 54(b). It is this judgment, along with the granting of the motion in limine, from which Mason appeals. The negligence action against Sandra was continued.
The essential ingredients of a cause of action for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) proximate cause; and (5) damages. Chiniche v. Smith, 374 So. 2d 872 (Ala.1979). The doctrine of negligent entrustment is founded on the primary negligence of the entrustor in supplying a motor vehicle to an incompetent driver, with manifestations of the incompetence of the driver as a basic requirement of a negligent entrustment action. Chiniche, supra; Cooter v. State Farm Fire & Casualty Co., 344 So. 2d 496 (Ala.1977). Mason contends that the evidence that Sandra had failed her driver's test three times and had no license at the time of the accident was probative of her incompetency and therefore should have been admitted. We agree.
This Court has held in negligence cases that the lack of a driver's license is not probative of a driver's negligent acts. Therefore, it is prejudicial error to admit such evidence in a negligence case. See Giles v. Gardner, 287 Ala. 166, 249 So. 2d 824 (1971). But, in a negligent entrustment action, negligence on the part of the driver is but one of the necessary elements. Keller v. Kiedinger, 389 So. 2d 129 (Ala. 1980). Additionally, what has to be shown is the incompetence of the driver, i.e., that he is "likely because of his youth, inexperience, or otherwise, to use [a chattel] in a manner involving unreasonable risk of physical harm to himself and others." Quoting Restatment (Second) of Torts, § 390 (1965).
In this case, evidence of Sandra's lack of a driver's license and three-time failure of her driver's license test prior to the accident, although not conclusive, was probative of her possible inexperience and lack of skill, and, therefore, should have been admitted. The remoteness in time between Sandra's last failure of the test and the accident should go to the weight afforded the evidence, not its admissibility. Had the evidence of the failures been admitted at trial, instructions limiting its application to the negligent entrustment action would have been necessary to prevent prejudice against Sandra in the negligence suit. Furthermore, if the trial court found that limiting instructions were insufficient to cure the prejudicial effects of the evidence upon proper motion, it would be within the Court's discretion to order separate trials.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES and ADAMS, JJ., concur.
ALMON, J., concurs in the result. | July 26, 1985 |
b496d3a1-8ac2-4f79-ba80-fc608d237731 | Black v. Seals | 474 So. 2d 696 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 696 (1985)
Richard BLACK and Jackie Savage
v.
Gertrude SEALS, et al.
John Lewis SAVAGE
v.
Gertrude SEALS, et al.
84-80, 84-81.
Supreme Court of Alabama.
August 2, 1985.
*697 Margaret L. Fleming, Talladega, for appellants.
William J. Trussell of Church, Trussell & Robinson, Pell City, for appellees.
ADAMS, Justice.
Plaintiffs John Savage, Richard Black, and Jackie Savage appeal from a summary judgment in a suit for the partition or sale of land. We reverse.
Mildred Savage owned a forty-acre tract of land in St. Clair County, Alabama. Mildred died on April 14, 1974. Her niece, Gertrude Seals, offered Mildred's will, dated August 27, 1973, which was handwritten with no subscribing witnesses, for probate. Mildred's nephew, appellant John Savage, contested that will and attempted to probate another will dated May 4, 1966. An agreement was then reached wherein Savage dropped the will contest and withdrew the 1966 will. The handwritten 1973 will was probated, and its devisees executed deeds for portions of the property consistent with the terms of the will. John Savage received a deed for ten acres of the property.
In 1982, John Savage brought this action for partition or sale of the entire forty acres. Savage contends that Mildred's 1973 will was invalid, since it was not attested by two witnesses. Therefore, he argues, the deeds executed by the devisees under that will were also invalid, since the property should have passed by intestate succession and only the heirs could convey the land. Savage claims a one-seventh interest in the forty acres, as a tenant-in-common with Mildred's other heirs, and is seeking partition or sale of the land as a matter of right, pursuant to Code 1975, § 35-6-20. Two of Mildred's other heirs, in intestacy, defendants Richard Black and Jackie Savage, filed motions to be realigned as plaintiffs in the partition action. While their motions were pending, the trial court granted summary judgment for all defendants. John Savage, Richard Black, and Jackie Savage appeal.
In order for the court to render summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. General Inv. Corp. v. Texas Refinery Corp., 451 So. 2d 1373 (Ala.1984); Rule 56(c), A.R.Civ.P. Whenever there is a scintilla of evidence supporting the position and assertions of the nonmoving party, summary judgment is inappropriate. Bank of the Southeast v. Jackson, 413 So. 2d 1091 (Ala. 1982). Here, there was some evidence to support Savage's contention that he held an interest in the entire forty acres.
It is the general rule that a judgment or decree of a probate court cannot be collaterally attacked or impeached, unless plainly void or made without jurisdiction. Smith v. Mitchell, 269 Ala. 463, 114 So. 2d 149 (1959). The probate court has jurisdiction to probate wills, but not to convert something that the law says is not a will into a will and thus to nullify, or, in effect, amend or repeal our statutes. Blacksher Co. v. Northrup, 176 Ala. 190, 57 So. 743 (1911).
Alabama law has rejected the idea of permitting holographic wills in the historic sense (i.e., a will entirely in the handwriting of the testator and valid without *698 witnesses) to be validly executed in Alabama, unless the testator is a nonresident. Comment, Code 1975, § 43-8-131.[1] The rule in Alabama is that an instrument must be subscribed by at least two witnesses to be valid as a will. Section 43-8-131. See Ray v. McClelland, 274 Ala. 363, 148 So. 2d 221 (1962) (applying Code 1940, Tit. 61, § 24); Arrington v. Brown, 235 Ala. 196, 178 So. 218 (1938) (applying Code 1923, § 10598); Elston v. Price, 210 Ala. 579, 98 So. 573 (1924) (applying Code 1907, § 6172). Thus, a probate court has no jurisdiction to probate an instrument not attested properly.
In Blacksher, supra, which was also a partition case, the probate decree indicated that only one witness had attested the will in question. The Court said:
In the instant case, the decree of the probate court shows that only one witness, Mittie B. Kennedy, testified she witnessed the signing of the will. The proof of will form, as well as the will itself, indicates that Ms. Kennedy did not sign the will as an attesting witness. Thus, a question arises as to whether the probate decree was entered without jurisdiction and is therefore a nullity subject to collateral attack. Since there is some evidence to support Savage's contention that he is a tenant-in-common as to the entire 40 acres, summary judgment was inappropriate.
For the foregoing reasons, we must reverse the judgment of the trial court.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES and ALMON, JJ., concur.
[1] Although § 43-8-131 is part of this State's Probate Code which became effective January 1, 1983, long after the death of Mildred Savage, the Commentary to this section points out that "prior Alabama law is in accord with this section." | August 2, 1985 |
921df77f-a619-4f74-9f3d-b4e507dda911 | East Montgomery Water, Sewer v. Water Works | 474 So. 2d 1088 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1088 (1985)
EAST MONTGOMERY WATER, SEWER AND FIRE PROTECTION AUTHORITY, a public corporation
v.
The WATER WORKS AND SANITARY SEWER BOARD OF the CITY OF MONTGOMERY, a public corporation.
84-361.
Supreme Court of Alabama.
July 26, 1985.
*1089 Eric A. Bowen, Montgomery, for appellant.
J. Fairley McDonald III, Robert E. Sasser, and Patricia S. Williamson of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellee.
BEATTY, Justice.
This is an appeal by defendant, East Montgomery Water, Sewer and Fire Protection Authority, a public corporation, from a summary judgment rendered in favor of the plaintiff, the Water Works and Sanitary Sewer Board of the City of Montgomery, a public corporation, in plaintiff's action for a declaratory judgment.
Having considered the briefs of the parties, together with the record, the Court finds that the controlling issue is a narrow one dealing with statutory construction. That issue having been aptly and correctly considered by the trial court, the opinion of that court is adopted as the opinion of this Court:
"This cause comes before the Court on the motion of Plaintiff The Water Works and Sanitary Sewer Board of the City of Montgomery for summary judgment pursuant to A.R.Civ.P., Rule 56(a). After consideration of the pleadings, the materials submitted by the Plaintiff in support of its motion, the responses of the Defendant, the arguments of counsel for the parties, and all other relevant, admissible evidence, the Court concludes that there is no genuine issue of material fact and that the Plaintiff's motion is due to be granted as a matter of law.
"Plaintiff The Water Works and Sanitary Sewer Board of the City of Montgomery is a public corporation organized under the authority of §§ 11-50-310 through XX-XX-XXX, Code of Alabama 1975, for the primary purpose of operating the water and sanitary sewer systems in the City of Montgomery and the territory surrounding the City. The City conveyed its water and sanitary sewer systems to the Plaintiff Board some years ago, and has periodically granted franchises to the Plaintiff permitting its operation of the systems within the City's corporate limits and police jurisdiction. *1090 The Plaintiff Board clearly possesses the authority as a matter of law
"§ 11-50-314, Code of Alabama 1975 (emphasis supplied). The Defendant East Montgomery Water, Sewer and Fire Protection Authority is, on the other hand, a public corporation organized under §§ 11-88-1 through 11-88-21, Code of Alabama 1975, and generally furnishes water, sewer and fire protection services and facilities within a designated service area, which includes portions of eastern Montgomery County beyond the corporate limits of the City of Montgomery.
"A Montgomery real estate developer is currently engaged in the planning for construction of a golf course and a rather substantial residential subdivision on a tract of land located east of the present Montgomery city limits near the intersection of Vaughn and Ray Thorington Roads. As the development site lacks both water supply and sewage disposal facilities, the developer discussed the matter of providing those services with representatives of both the Plaintiff Board and Defendant Authority on several occasions, and ultimately extended a formal request to the Plaintiff to extend its existing water and sanitary sewer lines to the site. Although the Plaintiff Board is receptive to the request and intends to serve the development, the Plaintiff recognized that in 1982 the Alabama Legislature implemented Act 82-624, now codified as § 11-50-1.1, Code of Alabama 1975:
"It is undisputed that the Defendant Authority also proposes to provide water and sewage disposal services to the development and, assuming the applicability of § 11-50-1.1, would not give `consent' for the Plaintiff Board to do so in its stead.
"In light of the foregoing situation, the Plaintiff Board instituted this action under the Declaratory Judgment Act, §§ 6-6-220 et seq., Code of Alabama 1975, seeking a judicial determination that § 11-50-1.1 is either unconstitutional, inapplicable to the previously described situation because the Plaintiff would not in fact be `acquiring, or duplicating any services of' the Defendant, or inapplicable to the Plaintiff because the Plaintiff is a public corporation and not a `municipalit[y].' Of these three points, only the latter has been addressed by the Plaintiff's motion for summary judgment and argued by the parties, and the Court finds that resolution of this issue is dispositive of the case. A justiciable controversy capable of resolution through a declaratory judgment is undoubtedly presented by this case, but the Court determines that there is no genuine issue of any material fact and that the construction of § 11-50-1.1 is a matter of law.
"It is, of course, well settled that, in construing a statute, this Court is under the duty to ascertain the legislative intent from the language used in the enactment, and `when the statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent must be given effect.' Dumas Brothers Manufacturing Company, Inc. v. Southern Guaranty Insurance Company, 431 So. 2d 534, 536 (Ala.1983). In this case, the statute in issue§ 11-50-1.1clearly prohibits `[m]unicipalities' *1091 from `acquiring, or duplicating any services of, any waterworks systems or any part thereof' operated by corporations like the Defendant Authority. The term `municipalities' refers in its most commonly understood sense to cities and townsmunicipal corporationsand, indeed, § 11-50-1.1 is obviously intended by the Legislature to address water systems owned and operated by cities and towns themselves, see, e.g., §§ 11-50-1 et seq., Code of Alabama 1975, particularly in light of the Supreme Court's decision in Town of Loxley v. Rosinton Water, Sewer and Fire Protection Authority, Inc., 376 So. 2d 705 (Ala.1979). By the same reasoning, however, the term `municipalities' excludes a public corporation like the Plaintiff Board since it is well established that `a public corporation organized under the Water Board Statute ... is an entity separate and independent from the city which it serves ....' Water Works Board of City of Leeds v. Huffstutler, 292 Ala. 669, 677, 299 So. 2d 268 (1974). If the Legislature had intended to include public corporations like the Plaintiff Board within the scope of § 11-50-1.1, it could have enumerated those sections of the Code of Alabama which provide for the formation of such corporations in the same manner that it delineated the various public entities which are protected by the section. As the Legislature did not do so, but instead used the rather narrow and unambiguous term `municipalities,' this Court cannot supply by statutory construction that which the Legislature did not expressly provide for in the statute. See, e.g., Town of Loxley v. Rosinton Water, Sewer and Fire Protection Authority, Inc., 376 So. 2d 705, 708 (Ala.1979).
"The Court concludes that, as a matter of law, the Plaintiff Board is not within the operative effect of § 11-50-1.1 since it is not a `municipality,' but a public corporation. Concomitantly, the Plaintiff Board is not required by law to obtain any form of `consent' from the Defendant Authority prior to extending its water and sewer lines into territory, like that involved here, which surrounds the City of Montgomery. In light of this conclusion, the Court need not, and does not, express any opinion on either the constitutionality of § 11-50-1.1, or the point of whether the Plaintiff Board would be `acquiring, or duplicating any services of' the Defendant Authority within the ambit of § 11-50-1.1, under the circumstances presented.
"It is, therefore, ORDERED, ADJUDGED and DECREED that the motion of Plaintiff The Water Works and Sanitary Sewer Board of the City of Montgomery for summary judgment be, and the same is hereby, GRANTED. Costs are taxed against the Defendant East Montgomery Water, Sewer and Fire Protection Authority, for which execution may issue.
"Entered on this the 30th day of November, 1984."
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | July 26, 1985 |
a73d13f4-a6e8-4c06-b6c4-9da8d6bfd72c | Ex Parte Airhart | 477 So. 2d 979 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 979 (1985)
Ex parte Gerald Wayne AIRHART
(Re Gerald Wayne Airhart v. State).
84-207.
Supreme Court of Alabama.
July 19, 1985.
Roy J. Brown, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
BEATTY, Justice.
Certiorari was granted to determine whether or not the decision of the Court of *980 Criminal Appeals, 477 So. 2d 976, in this case applied the correct principle of law to the charge that this defendant
Specifically, the petitioner contends that there was a variance between this charge and the proof adduced at trial and as found by the Court of Criminal Appeals. In its opinion, that court found:
The court went on to find:
Thus, the Court of Criminal Appeals relied upon Farley v. State, 437 So. 2d 639 (Ala.Crim.App.1983), as authority for holding that no variance existed when the charge pertained to "currency" and the proof established unauthorized control over "checks." The contrary position had been recognized in Airhart v. State, 388 So. 2d 211 (Ala.Crim.App.1979), cert. quashed, 388 So. 2d 213 (Ala.1980). According to the Court of Criminal Appeals, at 437 So.2d 639:
"Airhart was decided before the effective date of the Alabama Criminal Code. Adoption of the new code cures this problem presented in Airhart. The commentary to § 13A-8-2 asserts that the purpose of enacting the section `is to create a unified theft offense which eradicates the common law distinctions between the crimes of larceny, embezzlement, and false pretenses.' It further states that:
The unified theft offense created by § 13A-8-2, while reducing the risk of variance between pleading and proof, did not, however, eliminate the necessity for considering such variances as they might pertain to the nature of the property alleged to have been unlawfully controlled.[1] Nothing in that section transposes "currency" into a bank "check." And when in this case the charge involved "currency" and the evidence *981 established "checks," this was a fatal variance. See House v. State, 380 So. 2d 940, 942-43 (Ala.1979).
It follows that the judgment of the Court of Criminal Appeals must be reversed and this cause remanded to that court with directions to order a new trial. It is so ordered.
REVERSED AND REMANDED WITH DIRECTIONS.
FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, J., concur in the result.
[1] For example, if the indictment charged theft of an airplane and the proof showed theft of an automobile, a fatal variance would exist even though both articles of property are means of transportation. There is a similar material distinction between a bank check and a federal reserve note, even though each is a medium of exchange. | July 19, 1985 |
94ec2a1a-c554-429c-af48-d1e4bbf90a6d | Coleman v. STEEL CITY CRANE RENTALS | 475 So. 2d 498 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 498 (1985)
Evan D. COLEMAN
v.
STEEL CITY CRANE RENTALS, INC., and Steel City Erection Company, Inc.
ILLINOIS CENTRAL GULF RAILROAD COMPANY
v.
Evan D. COLEMAN; Steel City Erection Company, Inc.; Steel City Crane Rentals, Inc.
83-744, 83-785.
Supreme Court of Alabama.
July 19, 1985.
Rehearing Denied August 23, 1985.
*499 Clarence M. Small, Jr. of Rives & Peterson, Birmingham, for appellant Evan D. Coleman (83-744).
Hobart A. McWhorter, Jr. and Joseph B. Mays, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellant Illinois Central Gulf RR Co. (83-785).
Jack B. Porterfield, Jr., Larry W. Harper & Stanley K. Smith of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellees Steel City Crane Rentals & Steel City Erection Co. (83-744 & 83-785).
Clarence M. Small, Jr. of Rives & Peterson, Birmingham, for appellee Evan D. Coleman (83-785).
BEATTY, Justice.
These are appeals by defendant Illinois Central Gulf Railroad Company (ICG) and plaintiff Evan Coleman from jury verdicts against ICG and in favor of defendants Steel City Erection Company, Inc., and Steel City Crane Rentals, Inc. The lawsuit resulted when plaintiff was injured by a tree limb broken off by a crane owned by the Steel City defendants and leased to ICG to clear the wreckage of a train derailment. We affirm.
On October 1, 1978, a train derailed near Tuscaloosa. Plaintiff, a car and wrecker foreman employed by ICG, was one of the workmen sent to remove the wreckage. The evidence disclosed that four groups of workmen are needed to clean up after a derailment: carmen, a track crew, a train crew, and a crane crew. ICG owned a crane and employed a crane crew, but at the time of the derailment they were in Meridian, Mississippi. Therefore, ICG contacted the Steel City defendants and leased a crane and crew for the operation. During the work, the boom of the crane struck and broke off a tree limb, which fell approximately 40 feet onto plaintiff's head. Plaintiff incurred medical expenses and suffered permanent physical impairment as a result of the injury.
Plaintiff brought suit against ICG and the Steel City defendants, alleging four counts of negligence. ICG cross-claimed *500 against the Steel City defendants seeking indemnity, and Steel City Erection Company cross-claimed against ICG seeking indemnity. At the close of all the evidence, the trial court granted ICG's motion for directed verdict on the cross-claim filed by Steel City Erection Company. The jury returned verdicts in favor of the Steel City defendants and in favor of plaintiff and against ICG in the amount of $500,000. ICG and plaintiff filed motions for new trial, which were not ruled upon within 90 days.
On appeal, ICG argues that the verdict against it was contrary to the preponderance of the evidence, and thus that it was entitled to a new trial. ICG also maintains that the trial court erred in refusing to give various written charges to the jury. Plaintiff appealed the verdict and judgment in favor of the Steel City defendants solely to retain them as defendants in the event his verdict and judgment against ICG were reversed.
ICG maintains that the jury verdict against it and in favor of the Steel City defendants is against the preponderance of the evidence because the jury necessarily found that the members of the crane crew employed by the Steel City defendants became the "loaned servants" of ICG, making ICG liable for their negligence. ICG contends that the trial court should have decided as a matter of law that the crane operators were servants of the Steel City defendants, not of ICG, at the time of the accident.
In determining whether an employee has become a loaned servant the ultimate test is: Whose work was the employee doing and under whose control was he doing it. Dumas v. Dumas Brothers Manufacturing Co., 295 Ala. 370, 378, 330 So. 2d 426, 432 (1976). It is not the actual exercise of control which is determinative but rather the reserved right to control the employee. United States Steel Corp. v. Mathews, 261 Ala. 120, 123, 73 So. 2d 239, 242 (1954). Where the work of the employee is part of a large undertaking, mere suggestions as to details necessary for a cooperative effort must be distinguished from actual authoritative direction and control. 261 Ala. at 124, 73 So. 2d at 242.
In the present case, there was considerable evidence taken on this issue. The crane crew was employed and paid by Steel City, which in turn billed ICG for the services. Steel City decided which of its employees to send on any particular assignment. If ICG was dissatisfied in the work, it could dismiss the entire crew, but only Steel City could fire one of its employees. The employees testified that they were working for Steel City and assisting the railroad in clearing the tracks. There was evidence that the positioning of the crane and the movement of the boom were decisions left entirely to the crane crew without direction from the railroad supervisors. However, there was also evidence that ICG employees specified the way in which the line was to be cleared, the location where the crane crew should begin working, the order of the cars to be put back on the tracks, and the time when the crane crew could leave the site. Railroad employees hooked the crane to the cars and signaled when the crane should lift the car. One of Steel City's crane operators testified as follows:
There was also evidence from which the jury could infer that the ICG employees worked with the Steel City crane crew in the same manner they would have worked with the ICG crane crew that was unavailable at that time.
Although the question is a close one, there is sufficient evidence from which the jury could have concluded that ICG employees went beyond suggestions for a cooperative effort and exercised supervisory control over the actions of the Steel City crane crew. If reasonable persons can reach different conclusions on the question of whether a servant of one employee has temporarily become the servant of another, it is a question of fact for the jury. United States Steel Corp. v. Mathews, 261 Ala. at 123, 73 So. 2d at 241-42. A jury verdict is presumed to be correct and will not be reversed unless the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust. Shelby County v. Oldham, 264 Ala. 626, 627, 89 So. 2d 106, 107 (1956). The presumption of correctness accorded a jury verdict is strengthened when the trial court denies a motion for a new trial. TG&Y Stores v. Atchley, 414 So. 2d 912, 914 (Ala.1982). Although the motions for new trial were automatically denied under the provisions of Rule 59.1, A.R.Civ.P., the trial court later entered an order purporting to deny the motions.
We hold that the verdict was not manifestly unjust as against the preponderance of the evidence.
ICG contends that the trial court erred in not giving certain requested written charges and explanatory charges to the jury. Requested charge X instructed the jury that the members of the crane crew were not employees of ICG. This charge was not appropriate, since, as we have already held, the loaned servant issue was a question of fact. After the trial court refused to give charge X, ICG requested the following written charge on the law relating to the loaned servant doctrine:
The following oral charge given by the trial court, although not couched in the same specific language, sufficiently sets forth the principles of the loaned servant doctrine as they are found in case law:
ICG contends that the charge is defective with respect to the requisite intent of the employee and requested charge Y, which states that the crane crew members must have agreed to suspend their employment with Steel City and become employees of ICG in order to be considered loaned servants. The oral charge quoted above specifically states that an employee "may be transferred with his own consent or acquiescence to the service of a third person." After reviewing the entire charge to the jury, we find that the issues were fairly covered. We cannot reverse for the refusal to give requested written instructions where the same rules of law were substantially and fairly covered in the trial court's oral charge. Rule 51, A.R.Civ.P.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | July 19, 1985 |
ab78e46c-231f-485c-88cc-cf8ba9e1ac64 | Darby v. Johnson | 477 So. 2d 322 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 322 (1985)
Carlos DARBY
v.
Mary Idell JOHNSON.
84-465.
Supreme Court of Alabama.
September 20, 1985.
*323 Hugh M. Caffey, Jr. of Caffey & Byrd, Brewton, for appellant.
William R. Stokes, Jr. of Stokes, Jernigan and Stokes, Brewton, for appellee.
SHORES, Justice.
Carlos Darby appeals from that part of the circuit court's order requiring him to reconvey a portion of land to Mary Idell Johnson under an oral agreement. We reverse and remand for entry of judgment in favor of appellant.
In September 1979, Mary Johnson entered into a written contract with the Union Bank of Repton, Alabama, to purchase land in Escambia County for $4,731.06. The contract described two parcels of about one acre each; the two acres are contiguous, with one parcel located north of the other. The contract provided for payments over a five-year period and for the execution of a deed to Johnson upon full payment of the purchase price.
On March 12, 1982, Johnson and Darby entered into a written agreement concerning the northern parcel. Darby agreed to assume Johnson's indebtedness on the contract with the bank, which totaled approximately $3,900 at that time, in return for Johnson's conveying a warranty deed to the northern parcel when the balance due was paid. This written agreement was prepared by Johnson's attorney a week or two after Johnson and Darby informally negotiated the agreement.
Johnson had initiated the negotiations leading to the agreement when she became financially pressed and unable to continue the payments to the bank. She asked Darby, a close friend of her family, if he would be interested in assuming the balance of payments and obtaining title to the northern parcel. Darby agreed to do so in order to assist Johnson. At some point in the *324 conversation, Darby stated that he would reconvey to Johnson or her children the parcel at some future time if he were reimbursed for his payments. Both parties and several witnesses testified to the existence of this agreement to reconvey. However, the written contract did not include this promise.
Throughout the fall of 1983 and winter of 1984, exploration for oil was conducted in the area and on the property in dispute. According to trial testimony, oil was subsequently discovered on the property. On February 3, 1984, Darby paid the last payment due on the contract with the bank. He requested a deed at that time from Johnson, who refused to deliver it.
On February 28, 1984, Darby sued for specific performance of his agreement with Johnson. Johnson counterclaimed for a declaratory judgment of the parties' rights, title and interests in the parcel, in light of the oral agreement to reconvey. At trial, Darby responded to the counterclaim by interposing the Statute of Frauds as an affirmative defense. The case was tried without a jury, and the court entered judgment for Johnson, without written findings of fact. The court granted Darby specific performance by ordering Johnson to deliver the deed. However, the court also ordered Darby to reconvey the same parcel to Johnson upon her tender of payment for reimbursement of his purchase price and for reasonable costs for the removal of his house trailer.[1]
The only issue presented by this case is whether the Statute of Frauds prohibits enforcement of an oral agreement involving land even though both parties acknowledge existence of the agreement. In essence, Darby contends that the trial court erred by creating an equitable exception to the Statute of Frauds. Johnson's response is that the Statute's policy of preventing fraud and perjury in certain contractual settings is negated when both parties acknowledge the existence of the oral agreement, and thus, the Statute should not apply here.
The Alabama Statute of Frauds reads, in pertinent part, as follows:
Code 1975, § 8-9-2. In other words, an oral agreement involving land will be enforced when some or all of the purchase money is paid and the seller gives possession of the land to the buyer; otherwise, the statute voids the contract.
This Court has been required to apply the statute in many cases. Most recently, in Smith v. Smith, 466 So. 2d 922 (Ala. 1985), the Court reversed the judgment of the lower court and applied the Statute of Frauds to an oral agreement between twin brothers who agreed to exchange lands.
*325 The Court noted that the trial court's written findings of fact indicated that "the parties had indeed entered into an oral contract to exchange the lands in question" and that one of the brothers had performed his obligation by conveying the land to the other. 466 So. 2d at 924. However, the Court applied the Statute of Frauds and voided the oral agreement. Furthermore, upon examining the record, the Court found that the manner of possession by both brothers "was substantially the same before and after the oral contract was made." (Emphasis in original.) 466 So. 2d at 926. Thus, the possession requirement of the statutory part performance exception was not met.
Last year, this Court in Houston v. McClure, 456 So. 2d 788 (Ala.1984), upheld a court's finding that claimants fell within the part performance exception to the Statute of Frauds. Evidence presented ore tenus at trial described specific acts sufficient to meet the possession requirement. In Smith v. East Alabama National Bank, 221 Ala. 322, 128 So. 600 (1930), this Court considered an earlier version of the Statute:
221 Ala. at 323, 128 So. at 601. And in Heflin v. Milton, 69 Ala. 354 (1881), the Court specifically rejected the argument that equity should intervene when the Statute of Frauds is used to escape contractual obligations, the argument upon which the appellee relies. The Court quoted from Justice Story:
69 Ala. at 357.
However, despite Justice Story's admonitions, the Court on at least one occasion has ignored the Statute of Frauds defense in a land contract dispute. In Deming v. Lee, 174 Ala. 410, 56 So. 921 (1911), the plaintiff orally agreed to convey his interest in real estate to the defendants in return for the defendants' promise to convey other property plus $500 to the plaintiff. The defendants paid the $500, but, after receiving the plaintiff's property, the defendants refused to convey the other property as agreed and interposed the Statute of Frauds as a defense. In rejecting the defendant's Statute of Frauds argument, the Court stated:
Deming, 174 Ala. at 414, 56 So. at 922. Furthermore, "[e]quity will not permit a party to retain property, obtained on the faith of a verbal contract, to consummate a fraud by retaining the property and refusing to perform the contract." (Emphasis in original.) (Citations omitted.) 174 Ala. at 419, 56 So. at 924. The Court returned the parties to their pre-contract positions, by ordering the plaintiff to return the $500 and the defendants to reinvest him with the conveyed property. 174 Ala. at 421, 56 So. at 924.
In Stokes v. Bryan, 42 Ala.App. 120, 154 So. 2d 754 (1963), the Court of Appeals provided further guidance on when equity will enforce an oral contract which does not meet the part performance exception. In Stokes, the defendant landlord told the plaintiff tenants that a written lease was not necessary, and the plaintiffs agreed to *326 an oral lease. Five months later, the defendant gave the plaintiffs notice to vacate. The Court stated:
42 Ala.App. at 122, 154 So. 2d at 756. The plaintiffs, however, alleged only that the landlord did not perform his promise. And mere refusal to perform does not constitute fraud "because the defendant could have made his promises intending to perform them and then changed his mind." 42 Ala. App. at 122, 154 So. 2d at 755.
Spencer v. Spencer, quoted in Stokes, supra, involved an oral contract made upon consideration of marriage, which is also void under the Statute of Frauds. See Code 1975, § 8-9-2(4). In Spencer, the wife challenged the divorce decree, contending that the husband obtained it through fraud. Before she was served with process, her husband told her that if she would not appear in court, then he would not appear as well, and the suit would be dismissed for lack of prosecution. The wife orally agreed and failed to appear; the husband, however, did appear and obtained the divorce decree. The Court stated that a party could be estopped from asserting the Statute of Frauds if the promise was made fraudulently with no intention of performing it. However, the Court further explained the requirements for nullifying a Statute of Frauds defense on the basis of fraud:
254 Ala. at 27, 47 So. 2d at 255. In Spencer, the Court held that the wife's complaint did not attempt to show fraud by the husband, but only that he breached the oral agreement. 254 Ala. at 27, 47 So. 2d at 255.
The principal case relied upon by the appellee in the present case is Campbell v. Campbell, 371 So. 2d 55 (Ala.Civ.App.1979), involving an oral marital agreement. The plaintiff alleged that his ex-wife fraudulently induced him to deed over a one-half interest in the home upon their remarriage. She raised the Statute of Frauds in his action to set aside the conveyance. The Court of Civil Appeals rejected the Statute of Frauds defense, holding that where both parties orally enter into a prenuptial agreement, and both parties testify at trial to the existence and substance of the contract (conflicting only over the time the contract was made), "the purpose of the statute of frauds is completely negated." 371 So. 2d at 60. According to the court, if the purpose of the Statute is to prevent fraud and perjury in actions on contract, then there is little danger of fraud or perjury where both parties acknowledge the substance of the contract. Although not clear from the facts in the opinion, we assume that the plaintiff in Campbell made the requisite showing of fraud.
In summary then, the part performance exception is generally the only exception to the Statute of Frauds in regard to oral contracts concerning real property. To withdraw an oral contract from the Statute, one must pay some or all of the purchase price and be put in possession of the land by the seller. However, the cases instruct us that equity may intervene, even though the part performance requirement is not met, when fraud operates from the beginningthat is, when the breaching party procured the land or purchase money with no intent to perform the oral agreement admitted to have been *327 made. The cases further require that this fraud be clearly shown. Equity will not intervene when the party merely refuses to perform. To do so would render the Statute of Frauds a nullity in that the Statute is usually raised only when one of the parties breaches the oral agreement. Also, to enforce an oral contract against a party merely because he or she admitted to its existence and substance, against his or her own interest, is likely to promote perjury. Instead of admitting to the contract, the breaching party would be tempted to deny the agreement in order to escape liability.
Applying the law to the facts of the present case, which are not materially disputed, the trial court's conclusion that Darby entered into a "valid and enforceable agreement" with Johnson to convey back the northern parcel is erroneous. The evidence established an oral agreement, but the law as applied to the agreement prevents the court's enforcing the oral agreement because it is void under the Statute of Frauds. The statutory part performance does not save it because Johnson was never put into possession of the parcel by Darby, nor did she offer to pay the purchase money until this suit was commenced. Having reviewed the entire record in this case, we must conclude no inherent fraud was shown at trial. Excerpts from the trial transcript show not fraud but an amicable agreement between close friends, one of whom was in financial straits. In fact, it was Johnson who approached Darby about taking over the bank payments:
Further in the record, in response to questions put forth by her own counsel, Johnson answered:
And Johnson described their relationship in these terms and the reasons for the assignment:
Also, it is significant to the issue of fraud that Johnson's own attorney drafted the agreement, which failed to mention the right of reconveyance. Furthermore, it is noteworthy that Darby was not present when Johnson and her attorney drafted the agreement. There is no suggestion in the evidence that this transaction contained inherent fraudthat is, an intention not to perform operating from the inception of the transaction. Instead, the evidence establishes that Darby refused to perform his promise to reconvey only after he married and established residence on the parcel in July 1983, more than a year after the date of the agreement, or if one wanted to view the evidence more skeptically, Darby refused to perform only after the oil drilling commenced, which in any case occurred more than eighteen months after the agreement.
Based on the principles of law stated above and the evidence in this case, we hold that the trial court applied the law incorrectly. For this reason, we reverse that part of the trial court's decision ordering the appellant to reconvey the land to the appellee, and remand for entry of judgment in favor of appellant Darby.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
[1] The court order also resolved title and interests in the southern parcel, which was in dispute at trial but was not included in this appeal. In April 1983, Darby also orally agreed with Johnson to purchase the southern parcel by paying $1,500, partially in cash and partially by assuming Johnson's obligations under a different note to the same bank. Darby paid the full sum and progressively cultivated the parcel until it was capable of sustaining a garden, which he planted in April 1984. Although the agreement was oral, the court determined that the Statute of Frauds was inapplicable because of the statutory exception allowing for oral agreements involving real property where the purchase price is paid and the buyer is put in possession of the land. See Code 1975, § 8-9-2(5). The court resolved ownership of the southern parcel in favor of Darby and provided him with easements across the northern parcel for ingress and egress and septic tank connections. Neither party appeals from this part of the order. | September 20, 1985 |
2e1c42c0-0a39-4f2a-8254-85671b7cd9b5 | Ex Parte Thompson | 474 So. 2d 1091 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1091 (1985)
Ex parte Charles A. THOMPSON.
(In re Amos C. Thompson v. Charles A. Thompson).
84-782.
Supreme Court of Alabama.
July 26, 1985.
*1092 Steven F. Casey of Balch & Bingham, Birmingham, for petitioner.
David F. Ovson of Smith, White & Hynds, Birmingham, for respondent.
BEATTY, Justice.
Petitioner (defendant) seeks a writ of mandamus to the trial court directing it to allow an evidentiary hearing in order to permit defendant to present evidence and cross-examine appraisers appointed by the court pursuant to Code of 1975, § 35-6-101, in an action for a sale of property for division. The writ is denied.
The relevant facts are as follows:
Pursuant to Code of 1975, § 35-6-100, respondent (plaintiff) filed a petition for a sale for division as to property jointly held with the defendant. Section 35-6-100 provides as follows:
In accordance with the last sentence of the statute, the defendant filed a timely notice of his desire to purchase plaintiff's interest in the jointly held property and further requested the court to appoint an appraiser pursuant to § 35-6-101 to determine the value of the property. Section 35-6-101 provides:
Accordingly, the court appointed Charles Pritchett, a Member Appraisal Institute (MAI) appraiser, who submitted a written appraisal report valuing the property at $26,000. The defendant filed written objections to Pritchett's appraisal report, which were overruled by the trial court. In its order, however, the trial court provided that the "Defendant may, within the 30 day period, file additional objections or a motion to reconsider this Order, but such objections or motion shall be supported by an appraisal from a duly qualified MAI appraiser." The defendant did this: Along with his motion to alter, amend, or vacate the prior order and an amendment to his written objections, the defendant filed the written appraisal report of Mr. T.E. Young, an MAI appraiser who valued the subject property at $13,000.
Thereafter, the trial court issued an order granting defendant's motion to vacate its prior order and appointing a third appraiser, Mr. L.T. Reeves, Jr., an MAI appraiser, to appraise the subject property. Reeves submitted an appraisal valuing the property at $27,100. In due course, the trial court entered an order, which stated in part:
Following this order, the defendant filed a motion for an evidentiary hearing, the denial of which is the basis of this petition for writ of mandamus.
The defendant contends that the opportunity to submit written objections to the appraisal reports is not sufficient to allow him to exercise his due process rights to contradict the evidence presented in writing, and that he should be allowed an evidentiary hearing for that purpose. The defendant further contends that, even though the statutory scheme allows for this procedure, the trial court's determinations are invalid because they are based solely on the written reports of the appraisers, which are hearsay.
The constitutionality of these statutory provisions has been addressed previously by this Court. In Madison v. Lambert,[1] 399 So. 2d 840, 843 (Ala.1981), we stated the due process issues as presented in that case as follows:
This Court went on to hold:
Similarly, in Gibbons v. Allen, 402 So. 2d 914, 916 (Ala.1981), this Court reiterated:
In the present case, when the defendant objected to the report of the first court-appointed appraiser, the trial court overruled those objections but permitted the defendant to "file additional objections or a motion to reconsider" if "supported by an appraisal by a duly qualified MAI appraiser." When the report of the defendant's appraiser conflicted greatly with that submitted by the first appraiser, the court granted defendant's motion and appointed a third appraiser. Only after the court had confirmed that the two court ordered appraisals were substantially the same did it fix the value of the property. It appears to this Court that, in taking these steps, the trial court not only properly exercised its discretion, but it also fulfilled the demands of "the ends of justice." Madison, supra.
It is axiomatic that mandamus is an extraordinary remedy which should be granted only when there is a clear showing that the court below abused its descretion and exercised it in an arbitrary or capricious manner. Ex parte Baker, 459 So. 2d 873, 876 (Ala.1984); Ross v. Luton, 456 So. 2d 249, 254 (Ala.1984); Ex parte Hartford Ins. Co., 394 So. 2d 933 (Ala.1981). Furthermore, the petitioner must show that he has a clear right to the remedy sought. Tuscaloosa City Board of Education v. Roberts, 440 So. 2d 1058 (Ala.1983). Petitioner has failed to show that the trial court abused its discretion or that he has a clear right to the relief sought.
We further find no merit in the defendant's claim that the trial court's order is invalid because it is based on hearsay. First, the reports to which defendant objects are mandated under § 35-6-101, which provides that "[t]he appraisers or commissioners appointed under this section shall make their report in writing to the court within 30 days after their appointment." See also, Jolly v. Knopf, 463 So. 2d 150 (Ala.1985), where this Court reaffirmed the holdings in Madison and Gibbons, supra. Second, this objection is not properly reviewable by way of mandamus because a review by appeal would provide an adequate remedy. See Echols v. Housing Authority of Auburn, 377 So. 2d 952 (Ala. 1979), and Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 260 So. 2d 589 (1972).
For the above stated reasons, the writ is denied.
WRIT DENIED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] In his reply, the defendant makes a futile attempt to distinguish the present case from Madison on the ground that he is not seeking the sale for division, whereas the appellant in Madison was. We think the quoted language of Madison (Viz., "[n]othing prevents any objection by any party") to be sufficient to cover the objections made here. | July 26, 1985 |
6040fb13-d646-4412-935c-e222a1a6c065 | Meighan v. Watts Const. Co. | 475 So. 2d 829 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 829 (1985)
Louise T. MEIGHAN
v.
WATTS CONSTRUCTION COMPANY, et al.
83-911.
Supreme Court of Alabama.
July 3, 1985.
Rehearing Denied August 23, 1985.
Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
*830 Jack W. Torbert, Jr. of Torbert and Torbert, Gadsden, for appellees.
EMBRY, Justice.
Louise T. Meighan appeals from a summary judgment entered in favor of Watts Construction Company and James E. Watts[1] constituting a holding that her suit against Watts was barred by the six-year statute of limitations. We reverse.
The motion for summary judgment was submitted on the pleadings; written interrogatories, and answers thereto; the depositions of Mrs. Meighan, F.H. Ashley, and James Watts; and documents produced in discovery proceedings. All of these disclose that Mrs. Meighan, of 613 Reynolds Street, Gadsden, executed, on 15 June 1973, under seal, a deed of easement. This occurred because the City of Gadsden was to put in a new storm sewer pipeline near her property and residence. By this deed, Mrs. Meighan conveyed to the City a permanent easement upon a portion of her property for the construction and maintenance of a permanent storm sewer drainage pipeline, and also a temporary construction easement upon another portion of her property to afford ingress and egress to the permanently installed pipeline, and for piling dirt, stone, gravel, and other such substances while excavations were being made. This instrument, executed by Mrs. Meighan under seal, also provided:
The bid opening for this construction project, Reynolds Street-Haralson Avenue Storm Sewer Project, was scheduled by the City for 19 June 1973. Watts Construction Company was awarded the contract. The contract consisted of several documents: an instrument labeled "Contract," dated 5 July 1973; a performance bond executed by Watts under seal; a labor and material payment bond, executed by Watts under seal; a bid form dated 21 June 1973; various change orders, and the voluminous "Specifications & Contract Documents." These documents imposed upon Watts certain obligations regarding repair of damage to, and protection of, adjoining property. Watts, in the course of this project, undertook to restore to the original condition homeowners' premises that had been damaged or altered. There were no other contractors, or any city construction workers, that undertook to do this restoration or replacement work.
In that connection, Watts took up and replaced the driveway on Mrs. Meighan's property. At times, Watts had a number of employees and various heavy equipment on Mrs. Meighan's premises.
In the fall of 1981, Mrs. Meighan first noticed a drainage problem at her home. She saw a small crack that began in the brick wall under her living room window which kept expanding as time passed. She hired F.H. Ashley, a building contractor, who examined it and gave her an estimate of damages in April 1982. Mr. Ashley testified there were cracks in the wall the size of two hands, and a window was so skewed there was paper, rock, and other matter present around the window larger than one's fist.
Ashley commenced work to attempt the repair of the damage and further, to find the cause of the problem. He determined that a drain pipe which ran across the front and down the side of her house had been crushed or mashed. The site of the crushed or collapsed drain pipe was under the driveway which had been replaced by Watts during the 1973 construction work. This crushed pipe, after the driveway was replaced, gradually filled with dirt and became blocked. The water that had formerly drained through this pipe backed up, causing the damage to the wall and the foundation. In Ashley's expert opinion the pipe had been crushed with a heavy piece of machinery while the driveway was being *831 replaced. Cost of the repairs done by Ashley was $23,731.07.
Mrs. Meighan states the issues to be:
Crucial to a determination of these issues is resolution of the question of whether the instruments are deemed to be under seal so that applicable statute of limitations is ten years.
Watts contends they are not and says the six-year statute of limitations is applicable. Watts, in answer to the complaint, specifically denied that it was delegated, and assumed the duties, responsibilities, and obligations of the City to Mrs. Meighan. Watts further contends there was no assignment of the sewer project contract to Watts by the City, and further, that the contract was separate and apart from the deed of easement, the performance bond, and the labor and material payment bond. This contention rests primarily upon Article 4 of the "Contract," which states:
Reference to the "Performance Bond" shows:
Reference to the "Labor & Material Payment Bond" shows:
Regarding the contention that Watts was not delegated, and did not assume the duties, responsibilities, and obligations of the City, we find the record quite revealing. The specifications and contract documents contain, among others, the following provisions:
"...
By virtue of these documents, and other evidence, it is clear that Watts's contention is not well founded. We think the better reasoned view is that expressed by the Supreme Court of North Carolina:
Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).
Under the documents in evidence and the actions upon the part of Watts in performing the work designated in those documents, it is clear that the duties and responsibilities were delegated to and assumed by Watts. It is also clear that Watts undertook to fulfill those obligations, duties, and responsibilities for the benefit of Mrs. Meighan and others similarly situated. It is also clear that Watts, not the City, enjoyed the benefits granted under the deed of easement giving rights of access to Mrs. Meighan's property for the purpose of carrying out what the assigned contract called for: construction and restoration.
All of the above being true, it is evident that Mrs. Meighan may maintain an action to recover damages for Watts's failure to perform the obligations imposed by the contract, as we have defined it to be, as a third-party beneficiary of that contract made for the benefit of her and those similarly situated.
We therefore hold the ten-year statute of limitations to be the one applicable in this case and reverse the judgment below and remand this case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
[1] The defendants shall be referred to as "Watts." | July 3, 1985 |
0fb6498f-3043-4d52-b4d9-2ec9c312182b | Thompson v. State | 525 So. 2d 820 | N/A | Alabama | Alabama Supreme Court | 525 So. 2d 820 (1985)
Ex parte State of Alabama.
(Re Larry O'Neal THOMPSON
v.
STATE of Alabama).
Ex parte Larry O'Neal THOMPSON.
(Re Larry O'Neal Thompson
v.
State of Alabama).
84-304, 84-305.
Supreme Court of Alabama.
September 27, 1985.
Rehearing Denied November 8, 1985.
*822 Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for petitioner/ cross-respondent.
George H. Jones, Birmingham, for respondent/cross-petitioner.
Thomas M. Goggans of Goggans & McInnish, Montgomery, for amicus curiae Alabama Criminal Defense Lawyers Assn.
MADDOX, Justice.
Appellant Larry Thompson was found guilty of robbery in the first degree in violation of Code 1975, § 13A-8-41. He was sentenced under Code 1975, § 13A-5-9, the Habitual Felony Offender Act, to life imprisonment. The Court of Criminal Appeals affirmed his conviction conditionally and remanded the case to the trial court for a hearing on his claim of ineffective assistance of counsel at his trial.
Both Thompson and the State ask us to review that judgment. We consolidated both petitions and heard oral arguments. Thompson's primary claim is that he was improperly sentenced under the Habitual Offender Act. We address only Thompson's claim that he was improperly sentenced, and the State's claim that the cause should not have been remanded to the trial court.
The facts surrounding the robbery are adequately set out in the opinion of the Court of Criminal Appeals, 525 So. 2d 816, and will not be repeated here.
Thompson's petition presents this question: Can convictions of felonies prior to January 1, 1980, the effective date of Alabama's Criminal Code, Title 13A, be considered to enhance the punishment of an offender? Thompson claims they cannot be considered. He says (1) that the interpretation given by the courts of the word "felony" in the Habitual Offender Act is overbroad and contradicts the meaning of the word "felony" intended by the legislature, and (2) that this Court was without authority to define "felony" as broadly as it did in Temporary Rule 6(b)(3)(iv), because the word "felony" was specifically defined by the legislature in the Alabama Criminal Code.
The applicable provisions of Alabama's Criminal Code and the Temporary Rules of Criminal Procedure adopted by this Court to carry out the intent of the legislature read as follows:
Code 1975, § 13A-1-2(4), defines a "felony":
An "offense" is defined in Code 1975, § 13A-1-2(1), as follows:
Code 1975, § 13A-5-9, which authorizes the imposition of additional penalties, provides as follows:
This Court, acting pursuant to the authority granted by the provisions of Code 1975, § 13A-5-10, adopted Temporary Rule 6(b)(3)(iv), Alabama Rules of Criminal Procedure, which provides:
Thompson contends that the phrase "by this title" in § 13A-1-2(4) was intended by the legislature to restrict the Habitual Offender Act only to those convicted of felonies under Title 13A. He argues that the courts cannot expand the meaning of "felony" beyond the plain language used by the legislature, and that his sentence was unlawfully enhanced, as a result of proof of two prior felony convictions, one for grand larceny and one for buying, receiving, and concealing stolen property, neither being a violation of Title 13A, Alabama Criminal Code.
The basic question presented is one this Court faced when it adopted Temporary Rule 6, and that question is: What did the legislature intend when it authorized the use of prior convictions to enhance the punishment for an offense committed under the provisions of the Alabama Criminal Code?
In determining this intent we are aided somewhat because the legislature itself has spelled out the general rule which courts should use in construing what it meant. In Code 1975, § 13A-1-6, the legislature set out the general rule of construction to be used. That section provides:
Code 1975, § 13A-1-3, referred to in § 13A-1-6, states the general purposes of the Alabama Criminal Code as follows:
The Commentary to § 13A-1-6 "General Rule of Construction" contains the reasons for that section's inclusion in the Alabama Criminal Code:
Guided by the above, we now proceed to determine what will "effect the objects of [§ 13A-5-9, the habitual offender statute]."
Code 1975, § 13A-5-9, was obviously enacted to allow more severe penalties to be assessed against persistent violators of the felony laws of the state. James v. State, 405 So. 2d 71 (Ala.Cr.App. 1981). The goal of the Habitual Offender Act is to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. Lidge v. State, 419 So. 2d 610 (Ala.Cr.App.), cert. denied, 419 So. 2d 616 (Ala.1982).
Thompson's two prior convictions occurred before the effective date of the Habitual Offender Act, but it is undisputed that if those offenses had occurred after the effective date of the Habitual Offender Act, his offenses would have constituted felonies under Title 13A, because Thompson was convicted of offenses for which the law authorized a sentence of more than one year.
If the word "conviction of any felony" in § 13A-5-9 does not include convictions of felonies prior to the effective date of the Alabama Criminal Code, then Thompson is right.
*825 The crucial question, therefore, is: What did the legislature mean by the use of the words "convicted of any felony" and "felony" in § 13A-5-9? Did it intend to limit the provisions of the Habitual Offender Act to only those felonies committed after the effective date of the Alabama Criminal Code, and to only those offenses contained in the Alabama Criminal Code? We think not. While a strict construction of § 13A-1-2(4), which defines "felony," would require such a result, we do not believe that construction would "effect the objects of the law." Code 1975, § 13A-1-6. It is obvious that this Court, when it adopted Temporary Rule 6, did not construe the provisions of the law to limit the words "convicted of any felony" to only those felonies committed after January 1, 1980, the effective date of Alabama's Criminal Code, and to only those offenses contained in that Code.
It is clear that sentences for all offenses, both within and outside the new criminal code, must be imposed in accordance with the new criminal code. Code 1975, § 13A-5-1, states:
It is clear from a reading of all the sections of the new criminal code that the legislature intended that all felons be subject to enhanced punishment under the Habitual Felony Offender Act. For example, the fact that drug offenses are not classified does not make a drug offense any less a felony or the perpetrator any less a habitual offender. In Motley v. State, 409 So. 2d 945 (Ala.Cr.App.1981), the court answered an argument made by a defendant, convicted of attempted murder, that drug offenders were not treated as habitual offenders, as follows:
"`[A]ny person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony....'
"`Any offense defined outside this title which is declared by law to be a felony without specification of its classification or punishment is punishable as a Class C felony.' [Emphasis added.]
By adopting Temporary Rule 6, this Court placed emphasis on the "conduct" made the basis of the prior conviction, rather than where it occurred, or when it occurred. This Court, therefore, made the triggering mechanism not whether another jurisdiction might have punished the prior offense by imprisonment for more than one year, but whether Alabama considered the prior "conduct" so blame-worthy as to merit more than one year's imprisonment. The wording of the rule, therefore, has the following effect: (1) A conviction for an "offense" committed in Alabama prior to January 1, 1980, or after January 1, 1980, for that matter, punishable by a sentence of more than one year, is a "felony conviction"; thus, the fact that a defendant was convicted in Alabama and received a sentence of more than a year would necessarily mean that the prior conviction is a "prior felony"; (2) A conviction in any other jurisdiction, at any time, for a criminal act punishable in the other jurisdiction by a sentence exceeding one year, however, is not a "felony conviction" unless the act "would have been" punishable under our own criminal laws on or after January 1, 1980, by a sentence exceeding one year. We need not decide whether a conviction in any other jurisdiction, at any time, for an offense punishable in that other jurisdiction by a sentence not exceeding one year is, nevertheless, a "prior felony" if it "would have been" punishable by a sentence in excess of one year "had the conduct taken place in Alabama on or after January 1, 1980." Consequently, the rule does not say, and was not intended to say, that "a felony is a felony is a felony is anything punishable anywhere, anytime, by a sentence exceeding one year." By limiting the application of the Habitual Offender Act to the cases where the prior felony conviction involved conduct which would constitute a felony under Alabama's criminal laws, this Court has construed the Habitual Offender Act to guarantee equal treatment to all habitual offenders when the prior convictions are from jurisdictions outside Alabama, because the prior felony conviction is measured by the offender's conduct which gave rise to the conviction and whether such conduct constituted an offense punishable under the laws of this state by a sentence to a term in excess of one year.
We recognize, of course, that certain problems can occur under certain fact situations which make it difficult to determine whether a prior felony conviction can be used. In fact, the Court of Criminal Appeals has already been called upon to address one of these problems.
In Lidge v. State, 419 So. 2d 610 (Ala. Crim.App.), cert. denied, 419 So. 2d 616 (Ala.1982), the defendant's prior felony was here in the state of Alabama, in 1973; Lidge's conviction was for "grand larceny" under the old code. The old code defined "grand larceny" as (generally, but subject to many exceptions) the theft of property worth $25 or more, and punished it as a "felony." Tit. 14, § 331, Code 1940. The new code generally requires a theft of property worth $100 or more. Code 1975, § 13A-8-4(a). Upon his later conviction for robbery, under the new code, Lidge argued that his sentence as a habitual offender was improper. The Court of Criminal Appeals wrote: "This record does not state the value of the property stolen [in the prior offense]. The defendant argues that since no value is shown, it cannot be determined whether the crime would amount to a felony under the new Criminal Code." 419 So. 2d at 614.
The Court of Criminal Appeals cited Rule 6(b)(3)(iv), but nevertheless concluded that § 13A-1-2(4), Code 1975, required the first offense to be treated as a prior "felony." That court wrote:
"The three year sentence of imprisonment in the penitentiary [in the earlier conviction] would bring grand larceny *827 within the definition of a felony under our new criminal code. Section 13A-1-2(4) provides that a felony is `an offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title.'"
It is apparent that the Court of Criminal Appeals did not consider the last phrase, "authorized by this title," to be a limitation upon the right of the sentencing authority to use a conviction for an offense occurring prior to January 1, 1980. Implicit in its holding, however, is the emphasis the court placed on the prior conduct of the accused. In Lidge, what the Court of Criminal Appeals did, in effect, was to apply the Rule 6 test and uphold Lidge's conviction as a habitual offender, because the record showed that he received a sentence in excess of one year. Lidge's counsel did not raise the prior conviction question before this Court on petition for certiorari; therefore, this Court did not address it, but had it been raised, we would have reached the same result we reach today.
The issue of what constitutes a prior conviction under the Habitual Offender Act was raised in another case, where the conviction was for violating federal law.
In Carter v. State, 420 So. 2d 292 (Ala. Crim.App.1982), cert. den., 420 So. 2d 292 (Ala.1982), one of the defendant's prior convictions was based on 18 U.S.C. § 1708 (1970), possession of a check stolen from the United States mail. The Court of Criminal Appeals held that the federal conviction, although it carried a federal sentence exceeding one year, could not be used as a prior "felony" under Rule 6(b)(3)(iv). The Court of Criminal Appeals correctly framed the issue when dealing with crimes committed in jurisdictions outside Alabama. The court stated:
The Court of Criminal Appeals noted, "[T]he United States courts appear to have exclusive jurisdiction of crimes relating to mail theft." Carter v. State, 420 So. 2d at 298. Actually, the possession of the check was one count of the federal indictment; the second count charged forgery of a check drawn on the United States treasury. The Court of Criminal Appeals held that the conviction as based on that second count could be used under Rule 6 because "[a]lthough Alabama has no criminal statute analogous to § 1708, supra, proscribing theft of mail or possession of stolen mail, this State does proscribe the receiving, retaining or disposing of stolen property. See Ala.Code § 13A-8-16 (1975)." Id.
The problem presented in Carter, whether the prior conviction was for conduct which would be classified as a felony under Alabama law, is not present here, because unquestionably the prior convictions here were for conduct proscribed as "felonies" under Alabama law, as in Lidge.
We recognize that there may be instances when a problem could arise in determining whether a prior conviction can be used, but we need not address every conceivable instance in which a problem might be presented. We do, however, believe it would be helpful to show how other jurisdictions have handled similar problems when prior convictions in other jurisdictions are used to enhance punishment.
Our research indicates that other jurisdictions are split as to the best method to use in determining whether such prior convictions can be used to enhance a defendant's sentence. New York, for instance, looks only to the face of the statute under which the defendant was convicted. In People v. Olah, 300 N.Y. 96, 89 N.E.2d 329 (1949), the New York habitual offender law in effect at that time allowed an out-of-state conviction to be considered a "prior felony" only if the "crime" committed out-of-state would have been a "felony" in New York. Olah had been previously convicted of larceny in New Jersey under a statute making it a crime (punishable by more than a year's imprisonment) to steal money or goods having a "value ... of or *828 above twenty dollars." The New York theft statute at that time punished as a felony the theft of property valued at $100 or more.
In the earlier New Jersey case, the indictment charged the theft of property valued at over $200, and Olah pleaded guilty. Nevertheless, the New York Court of Appeals held the New Jersey conviction could not be used as a "prior conviction" in the New York proceeding:
300 N.Y. at 96, 89 N.E.2d at 330.
The question Olah raised, as applied to Alabama is: How does a court determine if the defendant's conduct that resulted in his prior conviction constituted a "felony" in Alabama under the Habitual Felony Offender Act without retrying the earlier case?
The Supreme Court of Minnesota considered this very question in State v. Briton, 265 Minn. 326, 121 N.W.2d 577 (1963). There, the defendant's prior conviction was in Iowa, where the theft of $20 was a felony; Minnesota law required the theft of $25 for the conduct to constitute a felony. Evidence in the prior Iowa case indicated the defendant had stolen $46. Interpreting a statute similar to our Temporary Rule 6, the court wrote:
265 Minn. at 329, 121 N.W.2d at 579.
Not all jurisdictions have followed the reasoning of the New York and Minnesota courts. In State v. Hines, 109 N.J.Super. 298, 263 A.2d 161 (1970), the defendant's prior conviction was in Pennsylvania, whose statute at the time simply punished "larceny" as a "felony." In the second state, New Jersey, the comparable statute in effect at the time punished as a "high misdemeanor" the theft of $50 or more. The defendant, relying on the reasoning of the New York Olah case, argued that a *829 Pennsylvania conviction of "larceny" would not support a finding of a prior felony under New Jersey law. The Court rejected the Olah reasoning:
109 N.J.Super. at 305, 263 A.2d at 165.
New Jersey, therefore, focused on the conduct, as we have done in this case. We hold that the Hines case comes closer to carrying out the intent of our legislature, but we do not address in this opinion how the state can make proof of a "prior conviction." Under the New York-Minnesota approach, because of chance differences between the laws of two states, many defendants with felony convictions could escape the enhanced punishment which was unquestionably intended for them. The New Jersey-California approach, on the other hand, would effectuate the purposes behind habitual offender statutes, in general, and Alabama's in particular. It is interesting to note that New York, after Olah, changed its habitual offender statute to authorize finding that a prior conviction was a felony if, under the convicting state's law, the defendant could have been sentenced to prison for more than one year. In People v. Morton, 48 A.D.2d 58, 367 N.Y.S.2d 595 (1975), the New York Appellate Division held this statute to be a violation of equal protection. The court pointed out:
48 A.D.2d at 60, 367 N.Y.S.2d at 597.
The New York legislature promptly responded to the Morton case by returning to a statutory scheme similar to the one involved in Olah, and which is similar to our own rule. This scheme is unquestionably constitutional. Watson v. State, 392 So. 2d 1274 (Ala.Cr.App.1980).
In Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L. Ed. 1683 (1948), the United States Supreme Court stated:
In summary, we hold that Temporary Rule 6(b)(3)(iv) was adopted to further the purposes of the Habitual Offender Act, as intended by the legislature. The rule does not expand the provisions of law, but only assists courts in their application of the law; therefore, it does not violate the concept of separation of powers.
In its petition, the State contends that the Court of Criminal Appeals erred in remanding the case to the trial court for the purpose of holding a hearing on the question of the effectiveness of Thompson's *830 trial counsel. The State contends that Thompson should not be allowed to raise this issue on direct appeal, because claims of ineffective assistance of counsel constitute grounds for a writ of error coram nobis, citing Sheehan v. State, 411 So. 2d 824 (Ala.Crim.App.1981). We disagree.
Technically, a writ of error coram nobis is the appropriate writ because it brings a judgment before the original trial court for correction due to an error of fact not in evidence from the record that would have prevented the judgment. Alabama Section, Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617, 631 (1978). The function of coram nobis is to correct a judgment that the trial court would not have rendered had it been aware of all facts. Summers v. State, 366 So. 2d 336 (Ala.Cr.App.1978). Essentially, coram nobis operates as a motion for new trial based on newly discovered evidence. Tillis v. State, 349 So. 2d 95 (Ala.Cr.App.), cert. denied, 349 So. 2d 100 (Ala.1977).
As noted in Summers, supra, at 341:
Coram nobis, therefore, can now be used to raise claims of inadequate assistance of counsel, although earlier cases refused to allow this use of the writ. Those cases required that claims raising the issue of ineffective assistance of counsel be made by motion for a new trial. Ex parte Gammon, 255 Ala. 502, 505, 52 So. 2d 369 (1951).[1]
The method used to raise the issue of ineffective assistance of counsel varies with the forum. Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw.U.L.Rev. 289, 290 (1964). Some jurisdictions allow such claims to be made by coram nobis, motion for new trial, and by direct appeal.
The Court of Criminal Appeals, in Delevie v. State, 454 So. 2d 1044, 1048 (Ala.Cr. App.1984), remanded a cause, as it did here, thereby allowing the question of ineffective assistance of counsel to be raised by direct appeal. The State did not ask us to review that opinion; therefore, this is the first time we have been asked to consider the issue.
We believe the Court of Criminal Appeals, in Delevie, adequately justified allowing an accused to raise the issue of ineffective assistance of counsel on direct appeal. That court held:
We hold that the Court of Criminal Appeals has authority to remand a case, if it determines justice would require it, to the trial court for a determination to be made on the defendant's claim that he was inadequately represented at his trial.
84-304 AFFIRMED.
84-305 AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON,[*] JJ., concur.
ON APPLICATION FOR REHEARING
MADDOX, Justice.
The State, on application for rehearing, presents the following issues:
On Issue I, we refuse to advise the Court of Criminal Appeals whether "justice requires" that this particular case be remanded. We assume the Court of Criminal Appeals has already made a determination that "justice requires" a remand in this case.
On Issue II, whether a hearing is required in this particular case is a question for the Court of Criminal Appeals to decide.
The record on appeal may prove the defendant's claim, or a hearing may be required in the case. Each case will depend upon its particular facts.
The opinion is extended, and the application for rehearing is overruled.
OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., not sitting.
[1] In Edwards v. State, 287 Ala. 588, 253 So. 2d 513 (1971), a capital case, Edwards was allowed to raise his claim on direct appeal, through amicus curiae, that he was inadequately represented. The Court noted, however, that on appeal the reviewing court would be limited to the record and could not examine extrinsic evidence. Edwards, 287 Ala. at 591, 253 So. 2d at 516.
[*] Houston, J., was not sitting when this case was orally argued, but has listened to the tapes of that argument, and has read the briefs before voting. | September 27, 1985 |
632be947-fe5a-46ec-acf1-b4d8f6383bd2 | Ex Parte Campbell | 479 So. 2d 1299 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1299 (1985)
Ex parte Rayford Howard CAMPBELL.
(re Rayford Howard Campbell v. State of Alabama).
84-560.
Supreme Court of Alabama.
July 12, 1985.
Rehearing Denied August 23, 1985.
James M. Byrd and Thomas M. Haas, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent.
FAULKNER, Justice.
Rayford Howard Campbell, Jr. was convicted of trafficking in cannabis in violation of Alabama Code 1975, § 20-2-80(1). The Court of Criminal Appeals, 479 So. 2d 1294, affirmed the conviction. We granted certiorari solely to consider the issue of whether § 20-2-80 is unconstitutional because it fails to fix a maximum sentence upon conviction.
Upon consideration of this issue, we affirm, based upon our decision in Ex parte Robinson, 474 So. 2d 685 (Ala.1985). Likewise, as to all other issues raised by defendant, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
*1300 TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | July 12, 1985 |
896ed148-f113-4870-b3f5-24075a01202e | Diemert v. City of Mobile | 474 So. 2d 663 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 663 (1985)
Howard DIEMERT, as father and next friend of Angela Victoria Diemert, deceased
v.
CITY OF MOBILE, a municipal corporation.
83-1202.
Supreme Court of Alabama.
July 3, 1985.
*664 Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
Horace Moon, Jr. and William G. Jones, III, Mobile, for appellee.
MADDOX, Justice.
This is an appeal from a summary judgment in a wrongful death case against the City of Mobile granted on the ground that the complaint, although filed within six months, failed to comply substantially with the claims statutes. We reverse and remand.
On April 13, 1980, eight-year-old Angela Diemert fell into a flooded drainage ditch in Mobile, was swept by the current into a large culvert, and drowned.
On July 25, 1980, Angela's father, Howard Diemert, filed a complaint on Angela's behalf against the City of Mobile, and others, seeking damages for her wrongful death. Subsequently, the City moved for summary judgment, claiming that Diemert had failed to comply with the pertinent notice statutes, Code 1975, §§ 11-47-23 and XX-XX-XXX, which provide as follows:
The motion was denied.
The City then filed a motion to reconsider the denial of the summary judgment motion. The City cited to the trial court this Court's decision in Ex parte City of Huntsville, 456 So. 2d 72 (Ala.1984), and argued that the holding therein mandated that its motion for summary judgment be granted. The trial court agreed, granted the City's motion to reconsider and, in turn, also granted its motion for summary judgment. The trial court's order provided, in pertinent part, as follows:
Diemert appeals, contending that the trial court erred in granting the City's motion. He argues that, even though he did not strictly comply with §§ 11-47-23 and 11-47-192 by filing a claim with the City, his complaint substantially complied with both, as required by Ex parte City of Huntsville. The City, on the other hand, argues that Diemert's complaint did not substantially comply with the statutes because: (1) it was not a sworn complaint and, (2) it incorrectly stated the date of Angela's death as May 13, 1980, rather than April 13, 1980.
As both Diemert and the City correctly state, in Ex parte City of Huntsville this Court held that where a plaintiff sustains a personal injury and wishes to bring suit against a municipality as a result thereof, if the plaintiff files a "sworn complaint" against the municipality within six months, as required by § 11-47-23, and that complaint provides the information required by § 11-47-192, "the manner in which the injury was received, the day and time and place where the accident occurred and the damages claimed," the complaint satisfies both §§ 11-47-23 and 11-47-192.
The city argues that the language of Ex parte City of Huntsville should be read literally to mean that, unless a complaint is sworn to and unless it states the exact date on which the injury occurred, it is insufficient to satisfy the statutes. To hold otherwise, the city contends, would defeat the purpose of the statutes, which is to give the city notice that a tort claim is being brought against it, enabling it to investigate, determine the merits of the claim, and, if necessary, adjust it without litigation. City of Anniston v. Rosser, 275 Ala. 659, 158 So. 2d 99 (1963).
We do not believe that Ex parte City of Huntsville should be read literally. In fact, we take this opportunity to further explain the rule of law which is applicable in these cases, because the cases are confusing. In City of Huntsville v. Davis, 456 So. 2d 69 (Ala.Civ.App.1983), the Court of Civil Appeals noted the confusion in our cases, as follows:
In Ex parte City of Huntsville, this Court, in dicta, attempted to clear up this confusion, but unfortunately failed to do so.
*666 For example, in Ex parte City of Huntsville, this Court attempted to reconcile the cases and stated the following:
The characterization of the holding in Eason is misstated. As the Court of Civil Appeals had pointed out in City of Huntsville v. Davis, Eason squarely held that "the filing of suit within the six-month period following the incident made the basis of the action does not constitute a compliance with the notice provisions of the statute." (Emphasis added.)
The statement that the complaint should be "sworn to" first appeared in the dicta in Ex parte City of Hunstville.
We have examined the complaints filed in Eason and Ex parte City of Huntsville and find that neither is "sworn to" and that they are substantially similar. We think the better rule is stated in Browning v. City of Gadsden, 359 So. 2d 361 (Ala.1978):
359 So. 2d at 364 (Ala.1978).
Consequently, we overrule Eason and Ex parte City of Huntsville insofar as they are inconsistent with our holding in this case.
The word "sworn," Ex parte City of Huntsville, was apparently taken from § 11-47-192. In view of the fact that no civil complaint, other than stockholders' derivative actions filed pursuant to Rule 23.1, Ala.R.Civ.P., must be sworn to in Alabama, see generally, Rule 8, Ala.R.Civ.P., the requirement that a complaint must be "sworn to" would conflict with Browning. Consequently, we hold that there is no need for a complaint to be sworn to in order to comply with §§ 11-47-23 and 11-47-192.
As to the issue of the incorrect date, the City points out that in City of Anniston, supra, quoting Benton v. City of Montgomery, 200 Ala. 97, 75 So. 473 (1917), this Court held that the trial court erred by failing to give a charge that a claim filed in an attempt to comply with Code 1940, T. 37 § 504 (the predecessor of § 11-47-192), contained a "fatal variance" if it was proved that the injury from which the claim arose actually occurred on June 10, 1959, instead of June 11, 1959, as the claim alleged. Indeed, this was the holding of that case. However, it must be remembered that at the time City of Anniston was written, strict compliance with the notice statutes was required. As Ex parte City of Huntsville and the cases upon which it relied show, strict compliance is no longer required. The rules of discovery in civil cases apply, and the City should not be heard to complain that such a relatively minor deficiency in Diemert's complaint as an incorrect date prevented it from acquiring knowledge of the pending action against it, which is the intended purpose of §§ 11-47-23 and 11-47-192. We hold that Diemert's complaint substantially complied with both statutes.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | July 3, 1985 |
0113fee9-680e-4886-99fa-08728053c789 | Self v. Bennett | 474 So. 2d 673 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 673 (1985)
George F. SELF, Jr.
v.
J.O. BENNETT, et al.
Ernest E. GARNETT, Sr.
v.
The TRAVELER'S INSURANCE COMPANY, et al.
Mary L. MOON
v.
LIBERTY MUTUAL INSURANCE COMPANY, et al.
83-334, 83-337 and 83-375.
Supreme Court of Alabama.
July 12, 1985.
Leon Garmon, Gadsden, for appellants.
Donald D. Lusk of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees J.O. Bennett, etc., and Corporate Group Service of Ala., Inc. (83-334).
F. Michael Haney of Inzer, Suttle, Swann & Stivender & Jack Torbert, Gadsden, for appellees The Traveler's Ins. Co. (83-334) and Liberty Mutual Ins. Co. (83-375).
BEATTY, Justice.
Affirmed on the authority of Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala. 1984); Garvin v. Shewbart, 442 So. 2d 80 (Ala.1983); and Waldon v. Hartford Insurance Group, 435 So. 2d 1271 (Ala.1983).
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES and ADAMS, JJ., concur.
JONES, J., concurs in the result.
EMBRY, J., dissents.
EMBRY, Justice (dissenting).
Each of the three appellants in these consolidated cases is a worker who claims he or she was injured while engaged in the performance of duties of employment and from a cause originating from that employment. Each alleges he has suffered partial permanent disability and each has attempted to assert his rights under Alabama's Workmen's Compensation Act. Their stories, as set forth in the records on appeal, are as follows:
On 31 January 1983, Ernest E. Garnett, Sr., injured his back while working at AAA Plumbing and Pottery Company (AAA) in Attalla, Alabama. As he left the plant that day, Garnett notified his employer he had injured his back.
On the night of the 31st, around 10:00 p.m., because of excruciating pain, fire medics were called to Garnett's home to *674 transport him to the hospital. When he arrived at the hospital, Garnett informed an orthopedic surgeon, Dr. Jack Reagan, that he had injured his back when he slipped at work.
After spending three weeks in the hospital in Gadsden, Garnett was discharged and referred to an orthopedic surgeon, Dr. Richard Nasca, at UAB Hospital in Birmingham, Alabama. Nasca performed back surgery on Garnett in April of 1983. After surgery and a partial recovery, Nasca informed Garnett he had suffered a permanent partial disability.
Garnett's complaint stems from problems which arose from his attempt to recover workmen's compensation benefits. As noted, Garnett gave his employer immediate notice that he was injured on the job. Further notice to the company included calls to Deborah Lynn Thompson, AAA's employee responsible for filing workmen's compensation claims; a telephone call to Joe Woods, Garnett's immediate supervisor, concerning the claim, three days after the accident; a conversation concerning the claim during visits by two supervisors from AAA to Garnett during Garnett's hospital stay; and three letters from Garnett's attorney, Leon Garmon, dated 22 February 1983, 5 March 1983, and 16 March 1983, to AAA on Garnett's behalf.
Garnett contends the plant superintendent, James Neumann, prevented the proper parties at AAA from filing notice of his claim with the company's compensation carrier, Traveler's Insurance Company (Traveler's), and that notice to Traveler's was not filed before 1 July 1983, when Garnett filed suit against AAA.
Garnett further alleges that, after Traveler's had notice of his claim, the carrier, conspiring with AAA, continued to deny his claim, and intentionally refused to pay it without lawful basis. He contends they attempted to starve him out and force him to accept a lesser amount than was due under the workmen's compensation provisions.
His amended complaint includes claims for wrongful refusal to pay workmen's compensation insurance benefits; conspiracy and collusion on the part of AAA and Traveler's to deny benefits to the claimant; intentional infliction of emotional distress; breach of contract; and the tort of outrage. Based on this court's decision in Waldon v. Hartford Insurance Group, 435 So. 2d 1271 (Ala.1983), the trial court dismissed all claims against Traveler's and granted summary judgment in favor of AAA on every claim except the issue of benefits due under the Workmen's Compensation Act.
Garnett filed a motion for an expedited hearing on the remaining claim due to his dire financial circumstances. (Garnett was receiving $20 per week from an independent disability insurance policy, and food stampsas his only income.) The request was granted and a hearing was scheduled for 23 September 1983. AAA requested a continuance, which was granted. The case was heard on 7 October 1983.
The trial court entered an order, on 10 November 1983, granting temporary total disability benefits to Garnett from 31 January 1983 until the time he was released to return to work by Dr. Nasca. When this appeal was filed, Dr. Nasca had not released Garnett to return to work. AAA requested that the trial court reconsider its order and a hearing date was set on that motion for 18 January 1984.
Meanwhile, AAA approached Garnett and offered to give him immediate payment of benefits due if he would consent to a modification of the trial court's finding that his injury occurred on the job. He elected instead to wait for the trial court's denial of the motion for reconsideration. On 13 February 1984, more than a year after his accident at AAA had occurred, Garnett received his first check for workmen's compensation benefits.
Mary L. Moon was injured at her place of employment, G.C. Murphy Company (Murphy) in Gadsden, Alabama, on 29 February 1980. She gave her employer prompt notice *675 of her injury and was treated by the company physician, Dr. John Keeling.
During the next two years, Moon made periodic attempts to return to her employment, but, because of pain, she could not satisfactorily perform her duties. These attempts were made while Moon was under the care of Dr. Keeling, and also her own family physician and a chiropractor. In July of 1981, Moon was working at G.C. Murphy on "light duty status" when she took vacation leave because of her pain. While she was home on leave, the company notified her by telephone that she was being placed back on disability leave. After Moon's vacation leave was up, her disability benefits were not renewed. When Moon contacted Murphy to inquire about her disability payment, she was informed the company would contact Liberty Mutual Insurance Company (Liberty Mutual), Murphy's workmen's compensation carrier.
In October of 1981, a claims supervisor for Liberty Mutual informed Moon that the company would not pay any further disability benefits until she submitted to a myelogram examination.
Moon was referred by Liberty Mutual to Dr. J. Clayton Davie, the neurologist who conducted the test. During Moon's hospitalization for the myelogram, Davie requested that a clinical psychologist, Dr. Lee M. Coleman, conduct various psychological tests and evaluations. The stated purpose of this testing was to rule out the possibility of any psychological or emotional component being a part of the back pain described by Moon. Dr. Coleman determined there was no emotional component contributing to Moon's pain and that her pain must originate from either "physical or organic" elements.
Davie did not request a second opinion from another psychologist, but advised Moon her myelogram appeared normal and released her to return to work.
Moon informed the company of Davie's evaluation of her myelogram and his opinion that she should be able to return to work with no restrictions as to duties. Moon was then informed by Margaret Carr, of Murphy, that she must receive a release from Keeling, the company physician, in order to return to work. Keeling refused to grant that permission except under "light duty" status.
When Moon reported to Carr the doctor's decision, Carr advised her there were no "light duty" jobs available at G.C. Murphy and that she would again be placed on disability leave.
Moon received disability benefits until November 1981, when, suddenly, they were discontinued. When Moon contacted Liberty Mutual to find out why, she was informed the company doctor had released her to return to work with no restrictions.
Moon returned to work but was not able to perform her duties due to pain. Her supervisor again sent her to the company doctor, who then sent her to an orthopedic surgeon, Dr. L.R. Lonnegan. Lonnegan made X-rays and examined Moon. He advised her to return to work and try to schedule her work around her pain. Moon tried again to return to work but was not able to perform her duties due to the pain and requested an approved leave of absence.
On 31 March 1982, Moon received the following notice that she was fired:
After being discharged by Murphy, Moon saw Dr. Thomas Staner at Brookwood Hospital in Birmingham and Dr. Richard Nasca of the University of Alabama Hospital at Birmingham. Both physicians determined *676 that Moon's myelogram was in fact "abnormal" and that she had a herniated disc. Moon submitted to surgery on 7 April 1983.
Dr. Nasca testified on deposition that Moon's condition was known as "spinal canal stenosis" and was consistent with the type of injury suffered by Moon at G.C. Murphy in February of 1980.
Nasca further stated that Davie "could have diagnosed and probably should have diagnosed" the spinal canal stenosis found in Moon. He stated, "I think her case is pretty obvious. I think just looking at the X-rays you can tell that there is a great deal of change there at L-4/L-5 and L-5/S-1 level."
Moon retained an attorney who, on 10 May 1982, notified Liberty Mutual and G.C. Murphy Company that, unless they settled Moon's workmen's compensation claim, suit would be filed. In June, Moon filed suit against Murphy and Liberty Mutual alleging wrongful refusal to pay temporary total disability benefits; collusion and conspiracy to deprive Moon of benefits by discharging her on 29 March 1982; intentional infliction of emotional distress; breach of contract by Liberty Mutual; and the tort of outrage. The trial court severed the claims against G.C. Murphy from those against Liberty Mutual and, based on this court's interpretation of the Workmen's Compensation Act's exclusivity provision in Waldon v. Hartford Insurance Group, 435 So. 2d 1271 (Ala.1983), granted summary judgment in favor of Liberty Mutual. Moon appeals that court's grant of final summary judgment.
George Self contends he was injured while fulfilling the duties of his employment with J.O. Bennett Lumber Company (Bennett Lumber) on 13 May 1982. Self promptly received benefits from his employer's workmen's compensation carrier, Corporate Insurance Group Service of Alabama, from 13 May 1982 through 7 July 1982, when the benefits were abruptly discontinued.
On 7 July 1982, when Self went to the premises of his employer, to inquire as to the reason for the termination of his benefits, he was informed by James Bennett, of Bennett Lumber, that he was fired. The reasons given for Self's termination by Bennett were that Self would not return to work and, as stated by Bennett, "You are causing our insurance rates to go up because of your back injury."
On 6 July 1983, Self filed an action for workmen's compensation benefits against Bennett Lumber. In addition, he stated tort claims against Bennett Lumber and Corporate Insurance for wrongful refusal to pay benefits; bad faith breach of contract; conspiracy and collusion between the defendants to deprive him of workmen's compensation benefits; intentional infliction of emotional distress; and the tort of outrage.
A motion for summary judgment, based on this court's decision in Waldon v. Hartford Insurance Group, supra, was filed on behalf of the carrier and Bennett Lumber. Summary judgment was granted as to all claims except Self's claim for workmen's compensation benefits. Self appeals that grant of final summary judgment.
These cases reveal a pattern of inequities caused by this court's current interpretations of the exclusivity provision of Alabama's Workmen's Compensation Act, and the employment-at-will doctrine.
First, because there are clearly inequities relative to the mechanics of recovery under Alabama's Workmen's Compensation Act, and it appears that those inequities are encouraged, in part, by this court's recent interpretation of the exclusivity provision of the Act, I would reconsider our decision in Waldon v. Hartford Insurance Group, 435 So. 2d 1271 (Ala.1983).
In Waldon, this court held that an independent tort action of an employee against the employer or workmen's compensation insurance carrier for bad faith in processing or paying claims was barred by the exclusivity provisions of the Workmen's *677 Compensation Act. Waldon, 435 So. 2d at 1273.
The exclusivity provision precludes workers from bringing claims outside the Act when such claims arise from work-related injuries. It provides:
§ 25-5-52, Code 1975.
§ 25-5-53, Code 1975.
This court's holding in Waldon was that the common-law bad faith action is so interwoven with the employee's right to compensation that to permit a separate action would circumvent the purpose of the exclusivity provision of the Act.
The exclusivity provision was again the subject of interpretation when, in Garvin v. Shewbart, 442 So. 2d 80 (Ala.1983), this court held the tort of outrage is not barred by the exclusivity provision of the Act. In Garvin, we distinguished our holding in Waldon by stating that, while a bad faith claim in a workmen's compensation action is interwoven with the employee's right to compensation, outrageous conduct is a separate tort which allows a separate recovery. Garvin, 442 So. 2d at 83.
To reconsider whether the exclusivity provision of the Act limits the worker's right to bring a common law action for the tort of bad faith, I will explore the Act, and also the legislative intent relative to the Act.
Alabama's Workmen's Compensation Act provides a remedy to employees who sustain injuries on the job irrespective of fault. The rationale behind the Act is that workers accept smaller recoveries than those potentially available at common law in return for coverage of all work-related injuries regardless of fault. In other words, the claimant has given up his right to pursue a larger recovery in a civil action in return for certain and swift recovery.
The Act also benefits industry in that, in contrast to greater damages that are awarded for serious personal injuries in tort or products liability actions, Alabama's worker's compensation statutes set a maximum compensation at 50-66% of the workman's average weekly wage and a minimum compensation of 25%. Further, the exclusivity provision of the Act limits the workmen's right to sue outside the Act.
Traditionally, disputes over payment of workmen's compensation claims have been resolved through the exclusive remedies provided by the workers' compensation statute. A 10% penalty may be imposed under the Act for a delay in payment. (As can be observed from the facts alleged in these cases on appeal, the penalty provision in the Act is a questionable deterrent to late payment.)
A number of courts have concluded that the workmen's compensation statute's exclusive remedy provision will not bar a separate tort action for the intentional wrongdoing in connection with the investigation and payment of claims and that the penalty statute does not provide the sole remedy. See Stafford v. Westchester Fire Insurance Co., 526 P.2d 37 (Alaska 1974); Unruh v. Truck Exchange, 7 Cal. 3d 616, 102 Cal. Rptr. 815, 498 P.2d 1063 (1972); and Martin v. Travelers Insurance Co., 497 F.2d 329 (1st Cir.1974). I consider the issues explored in these cases relevant to reconsideration of Waldon.
The exclusivity provision of the Act is subject to various interpretations. The Act does not expressly grant immunity to actions alleging intentional tortious conduct. Therefore, it is clear that the Legislature *678 intended that the judiciary have the discretion to decide whether a common-law action relative to a particular injury is barred by the exclusivity provision of the Act. That provision limits a claimant to recovery under the Act when the injury alleged is a "proximate result" of injury or death while "engaged in the actual performance of the duties of ... employment."
The damage which is the basis of these suits did not arise out of or in the course of the plaintiffs' employment, nor as a proximate result of the plaintiffs' injury. Instead, the damage was allegedly incurred because of the intent of the tortfeasor to cause injury and damage to the plaintiffs. Under a literal interpretation of the Act's exclusivity provisions, the intent of the tortfeasor is an intervening cause which removes the intentional tort from the operation of the provisions. We approached this rationale in Garvin, 442 So. 2d at 83, when we stated that outrageous conduct is a separate tort which creates a separate injury. We did not, however, carry that rationale to its logical conclusion by holding that, because of the genesis of intentional torts (the intent of the tortfeasor), they are separate torts which allow separate recoveries.
Second, the Alabama Constitution of 1901, Art. 1, § 13, declares "that all courts shall be open; that every person, for any injury done him in his lands, goods, person, or reputation, shall have a remedy by due process of law." The Workmen's Compensation Act is, of course, a voluntary substitute for common law applicable to those who elect to come within its provisions. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). It is this elective option between employer and employee that reconciles the Act with § 13 of the Constitution. Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924). That election is made upon the basis of a quid pro quo between employer and employee. Each voluntarily gives up rights guaranteed by § 13 in exchange for benefits or protection under the Workmen's Compensation Act.
It is highly unlikely that an intentional tort by an employer or carrier is contemplated by the reasonable employer or employee as part of the employment relationship. Therefore, the resultant injury would not arise out of employment and, as a result, the employee should retain his right to a common law action for an intentional tort.
Third, I consider the intent of the legislature relative to the creation of the workmen's compensation system, as discerned from the provisions of the Act and its history. The Act contains a penalty provision, Code 1975, § 25-5-59, which, appellees argue, was intended by the Legislature to be the exclusive remedy for harm resulting from late payment. The character of the penalty provisions within the present worker's compensation scheme is such that it is especially applicable to kinds of conduct which are not intentional. However, it may be triggered by intentional wrongdoings or the presence of bad faith, such as cases of mismanagement or deficient administrative practices, where intentional wrongdoing is involved, that conduct cannot be expiated by penalty payments in the amount of 10%. See Coleman v. American Universal Insurance Co., 86 Wis.2d 615, 273 N.W.2d 220 (1979).
There are a number of other indications of legislative intent relative to this issue. The primary objective of workmen's compensation laws is to provide certain and swift payment to injured workers or dependents of deceased workers who, in return for such a recovery, have forfeited their rights to bring a regular civil action for a larger recovery. The injured compensation claimant and the insurer occupy relative positions which are analogous to the insurer-insured relationship at the heart of the tort of bad faith. The workmen's compensation statutes impose liability on the employer to pay disability benefits to an injured worker, and make recovery under the statute the employee's exclusive remedy.
Under these circumstances, it is reasonable for the employee to expect fair dealing, *679 and it is not unreasonable to impose that duty upon the employer and the carrier. Tort claims against compensation carriers for wrongful delay or refusal to pay compensation promote the effectiveness of the compensation system by enforcing the workers' exclusive remedy when the insurer intentionally seeks to thwart that remedy.
Deprived of the bad faith theory, the workers' compensation claimant often cannot claim the benefits of tort law. The standard of proof required for the tort of outrage cannot be met in the typical case of delay or refusal to pay. In those cases, under the present law, employers and carriers can hide behind the shield of exclusivity with impunity, withholding benefits for undeniably compensable injuries until ordered to pay benefits. That result comports with neither the intent of the Act nor the public interest.
Last, I must note that our workmen's compensation system is basically an insurance scheme, and to insure against intentional torts is against public policy.
For the above reasons, remembering Justice Frankfurter's admonition that "[w]isdom too often never comes, and so one ought not to reject it merely because it comes too late," Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69 S. Ct. 290, 293, 93 L. Ed. 259 (1949) (dissenting opinion), I would overrule Waldon v. Hartford Insurance Group, supra, to the extent it holds the exclusivity provision of Alabama's Workmen's Compensation Act bars a cause of action for the tort of bad faith.
Second, and again considering Justice Frankfurter's admonition, I examine another advantage used by the employer in the workmen's compensation negotiation processretaliatory discharge. I need not recount the bitter fruits of the employment-at-will doctrine. Two of the cases in this consolidated appeal represent the inequity of the rule. There have been hundreds like them.
If workmen's compensation laws are to be fully protective of an employee's rights, we must recognize that it is unconscionable and contrary to public policy for an employee to have to choose between compensation and continued employment. For that reason, numerous courts have given workers a judicially created tort remedy for retaliatory discharge. See e.g., Clanton v. Cain Sloan Co., 677 S.W.2d 441 (Tenn.1984); Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978); Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976); Murphy v. City of Topeka-Shawnee Cty. Dept. of Labor Services, 6 Kan.App.2d 488, 630 P.2d 186 (1981); Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (1981); Hansen v. Harrah's, 675 P.2d 394 (Nev.1984); Smith v. Piezo Technology & Prof. Adm'rs', 427 So. 2d 182 (Fla.1983); Firestone Textile Co. Div., Firestone Tire and Rubber Co. v. Meadows, 666 S.W.2d 730 (Ky.1984). "In addition, California, Hawaii, Maine, Maryland, Minnesota, Missouri, New York, North Carolina, Ohio, Oklahoma, Texas and Wisconsin have by statute given workers either an administrative or judicial remedy for retaliatory discharge." Clanton, supra, 677 S.W.2d at 444.
Retaliatory discharges completely circumvent the legislative scheme reflected in our workers' compensation law. Therefore, in order to enforce the duty of the employer, secure the rights of the employee, and carry out the intention of the Legislature, I would recognize a cause of action in tort for retaliatory discharge when a workman asserts the right to workmen's compensation benefits and would allow recovery of actual and punitive damages resulting therefrom.
Last, because it appears the trial court determined that plaintiffs' claims for the tort of outrage and the intentional infliction of emotional distress were barred by the Act's exclusivity provision, I would decline to consider whether the facts presented by each appellant support such a cause of action.
*680 It is, of course, the plaintiffs' burden to make out a case of outrageous conduct by showing behavior which is "utterly intolerable in a civilized society." Cates v. Taylor, 428 So. 2d 637 (Ala.1983). I would deem it appropriate to withhold determination of this issue in order to allow reevaluation of the facts by the trial court in light of Garvin, supra, if these cases had been reversed. | July 12, 1985 |
3a9e941e-1a66-4ecb-b5a8-6eb0a119654c | Farlow v. Adams | 474 So. 2d 53 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 53 (1985)
Carl P. FARLOW; S.F. Carter; P.W. Green; R.M. Bragdon; J.P. Doughty; John M. Harbert III; Allen Post; William R. Eagan; C.C. Fargason, Jr.; J.A. Bragan; & W.E. Snow, Individually, and as members of the Board of Directors of American Cast Iron Pipe Co., et al.
v.
Leland C. ADAMS, Jr., et al.
Leland C. ADAMS, Jr., et al.
v.
Carl P. FARLOW, et al.
83-494 and 83-543.
Supreme Court of Alabama.
June 21, 1985.
As Modified on Denial of Rehearing July 19, 1985.
*54 A.J. Noble, Jr., Robert G. Tate, and F.A. Flowers III of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellants.
W. Eugene Rutledge of Rutledge, Fay & Kelly, and Robert L. Wiggins, Jr. of Wiggins & Quinn, Birmingham, for appellees.
MADDOX, Justice.
These cases were consolidated on appeal. At issue is the termination from employment of the entire Board of Operatives of the American Cast Iron Pipe Company (ACIPCO).
ACIPCO is a Georgia corporation with its principal place of business in Jefferson County, Alabama. The members of the Board of Operatives were employed in the company's Birmingham plant at the time of their discharge. All shares of common stock in ACIPCO are held in trust for the benefit of ACIPCO employees according to the provisions contained in the will of John J. Eagan.[1] Under the terms of the trust, the Board of Operatives, which consists of twelve elected ACIPCO employees, is charged, along with the Board of Management, with the duties of trustees. Two members of the Board of Operatives are elected to serve on the Board of Directors.
The Board of Management consists of the corporate officers of ACIPCO. The Board of Management also constitutes the Executive Committee of the Board of Directors.
According to the trust agreement, dividends are paid to the Board of Management and the Board of Operatives as the *55 trustees of the employees, and the dividends are invested by the trustees to insure that each employee is provided an income which, together with the wage or salary, will insure a living wage to all employees.
The Board of Operatives and the Board of Management have disagreed for several years over their respective roles, and the disputes have centered on the desire of the Operatives to establish a stronger voice in company decisions. The disputes culminated in February 1983, when the Operatives employed a private accounting firm to make an investigation of ACIPCO's books. The audit focused on the extra compensation plan of the company, which was developed by Management to apportion company profits among employees as a bonus. This plan became a substitute for the payment of dividends over which the Operatives, as trustees, would have had a vote.
The Operatives' accountants found that as a result of certain accounting principles used by the Board of Management, ACIPCO employees had been deprived of over $24,000,000 in extra compensation over a twenty-year period. In particular, the report indicated that the accounting principles and decisions utilized by the Board of Management resulted in improper charges made against income, based primarily on the following: (1) utilization of inconsistent methods of inventory; (2) deductions from the extra compensation plan to compensate the company for federal income taxes not actually paid; (3) improper deduction of letters of credit; and (4) failure to properly adjust income used for extra compensation computation purposes after a tax audit. These accounting principles were generally characterized by the accountants as not being in accordance with generally accepted accounting principles or as being inconsistent with the company's own accounting practices.
On March 31, 1983, the Operatives' attorney forwarded to the Board of Management a copy of the accountants' report, along with a letter to the Board of Management asking for repayment and rearrangement of the power structure so that the Operatives would be on an equal footing with the Board of Management.
Thereafter on April 10, 1983, the Board of Operatives initiated and held a public meeting away from the ACIPCO premises and invited all ACIPCO employees. Members of the public, including the news media, were permitted to attend. At this meeting, statements and a report were given by the Operatives' attorney and accountants. The letter of March 31, 1983, from the Operatives' attorney was also read at the meeting.
Later, after further correspondence and one meeting between the Board of Operatives and the Board of Management, the company attorney requested that the Operatives place and submit their oral proposals in written form.
On May 10, 1983, the Operatives' attorney complied with the request and submitted the proposals in a letter. As a "short term solution," the Operatives proposed, among other things, the immediate seating of a Board of Directors composed of five members of the Board of Operatives plus two nominees by that group, and five members of the Board of Management, plus two nominees of that group.
Without further contact or correspondence between the Board of Operatives and the Board of Management or their attorneys, a special meeting of the Board of Directors of ACIPCO was held on May 16, 1983. At this time, the Board of Directors issued a resolution terminating all members of the Board of Operatives as employees of the company. This resolution also directed that a special election be called to fill the vacancies created on the Board of Operatives. In addition, the Board of Directors determined that the Operatives had violated their oath required by the Eagan Plan;[2] had caused turmoil among the employees *56 and disruption in the company's operations; had falsely accused the officers and directors of mismanagement, of depriving the employees of bonus benefits, of wrongful control of company funds and facilities, and of a lack of good faith in their dealings with the Board of Operatives; and, further, that they were attempting to usurp the prerogatives of management in violation of the terms of the Eagan Trust.
The Operatives filed suit, seeking their reinstatement as employees of ACIPCO, contending that they were wrongfully discharged. In addition, the Operatives sought an award of attorneys' fees.
After reviewing the evidence, the trial court found that the Operatives were not employees at will and, therefore, could only be discharged for cause. The trial judge, sitting as the trier of fact, heard ore tenus evidence and found as follows:
Because the evidence indicated that the Operatives were not terminated for reasons related to their jobs or duties as employees, but for their actions as members of the Board of Operatives, the lower court reinstated the Operatives as employees of ACIPCO and as members of the Board of Operatives. The lower court also determined, however, that the Operatives were not entitled to attorneys' fees. We affirm the trial court's order reinstating the Board of Operatives as employees of ACIPCO but reverse the judgment of the trial court insofar as that judgment refused to award attorneys' fees, for the reasons hereinafter stated.
The Board of Management contends that because the Operatives were not employed under contract for a definite term, the trial court erroneously reinstated the Operatives as employees of ACIPCO. We disagree.
Concededly, at common law, an employment contract of indefinite duration is terminable at will by either party with or without justification or cause and without legal liability. Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977). The principle announced in Tranquilaire has been criticized as being unsound, but we need not discuss it here because we think it is inapplicable in this case. The case at hand involves a unique situation where employment contract principles are not exclusively applicable, and neither are principles of law concerning trusts exclusively applicable. ACIPCO's unique corporate structure is such that this Court is presented with a case of first impression which requires us to harmonize these two areas of the law involving the rights of employees.
This Court has previously considered the rights of ACIPCO employees in Duff v. American Cast Iron Pipe Company, 362 So. 2d 886 (Ala.1978); and Smith v. American *57 Cast Iron Pipe Company, 370 So. 2d 283 (Ala.1979). In both Smith and Duff, this Court held that "[i]n the ACIPCO community a contractual precondition to discharge is that the employee be found to have violated one or more of the established plant rules." 362 So. 2d at 888; 370 So. 2d at 287. (Emphasis added.)
Here, however, the Operatives were not fired because of a violation of a plant rule, but because of their efforts as trustees of the Eagan Trust to correct what they considered was a wrongful use of ACIPCO funds and their diversion from the beneficiaries of the trust.
The evidence supports the trial court's finding that the employees were discharged without cause. Mr. Farlow, the president of ACIPCO, was questioned regarding the Operatives' performance as employees; he responded as follows:
The Operative's "short-term" proposal to change the composition of the Board of Directors was characterized in the discharge resolution as a violation of their oath of office and not in accord with the Eagan Plan. The proposal was further characterized as an attempt by the Operatives to usurp the prerogatives of management.
It is apparent that the Board of Management's contention that the Operatives were only dicharged as employees is refuted by the testimony of Mr. Farlow and by the language of the discharge resolution itself, which indicates that the Operatives' "short-term" proposal to change the composition of the Board of Directors was one of the primary reasons for the action taken against the Operatives.
As this Court has held in other cases, the decision we reach must necessarily be influenced by the law of trust. This Court's duty, as we understand it, in resolving the dispute at hand, is to carry out the intent of the settlor. In Edmonson v. First Nat'l Bank of Birmingham, 256 Ala. 449, 55 So. 2d 338 (1951), this Court stated the following:
256 Ala. at 464, 55 So. 2d at 352-53.
In ascertaining this intention, we look to the concluding paragraph of the codicil to the Eagan will:
It is obvious that Christian principles were uppermost in the mind of the settlor when he set up the Eagan Trust. Before the trust was implemented, John Eagan explained his proposals to create the trust in a speech to his employees. He stated, "The teachings of Jesus Christ are to be made the controlling principles of the American Cast Iron Pipe Company." He believed that a business could be operated by the practical application of Christian principles and the Golden Rule. In furtherance of this objective, Eagan, in the codicil to his will, established the trust and intended to bring the wisdom of the employee representatives, the Operatives, into meaningful deliberation with the management representatives regarding the manner in which ACIPCO common stock, the corpus of the trust, was to be controlled. It is apparent that if Company management were permitted to randomly fire at will any employee who was a member of the Board of Operatives, there would be no meaningful role for the employee trustees in the management of the company. It is assumed that "a settlor generally appoints more than one trustee because of his desire to attain for the beneficiaries of his trust the benefit of the wisdom of each ...." Birmingham Trust National Bank v. Henley, 371 So. 2d 883, 895 (Ala.1979), cert. denied, 445 U.S. 915, 100 S. Ct. 1273, 63 L. Ed. 2d 598 (1980). This principle of law is applicable here, especially in view of Mr. Eagan's benevolent intent to create a trust which would operate a corporation adhering to Christian principles and which would benefit the public, who bought its product, and the employees who made it.
Furthermore, the law is clear that a construction of a trust which confers on a trustee absolute or unbridled powers is never favored by a court of equity. Gaines v. Dahlin, 228 Ala. 484, 154 So. 101 (1934); Hawkins v. Tanner, 243 Ala. 641, 11 So. 2d 351 (1942); Belcher v. Birmingham Trust Nat'l Bank, 348 F. Supp. 61 (N.D.Ala.1968). The ability of the Board of Directors of ACIPCO, dominated and controlled by the Board of Management, to arbitrarily and unilaterally discharge the employee trustees of the Eagan Trust, the Board of Operatives, would clearly result in the Board of Management's having unbridled and absolute power over the trust estate. We cannot construe the Eagan Trust to vest in management this power.
Finally, the Restatement (Second) of Trusts § 107 (1959), provides as follows:
No provision in the codicil of the Eagan will specifically provides for involuntary removal of one co-trustee by the other co-trustee. In Matter of Estate of Amason, 369 So. 2d 786 (Ala.1979), this Court stated:
Applying the above trust principles and employment contract principles to the case at hand, we must conclude that Mr. Eagan intended that the Board of Operatives could be discharged only for cause. A contrary holding would allow the Board of Management unlimited control and would totally disregard Mr. Eagan's intent and purpose in creating the trust. Consequently, we agree with the trial court's order which reinstated the employees who were members of the Board of Operatives.
The Operatives, although they were reinstated, were dissatisfied with that portion of the trial court's order wherein the trial court found that they were not entitled to *59 attorney's fees because "attorney's fees are not authorized by law." They appeal from that order.
The Operatives did not seek in this suit any relief regarding the alleged mismanagement of the bonus plan, maladministration by the Board of Management, or wrongful control of company funds and facilities. Because of this, the Board of Management contends the Board of Operatives is not entitled to attorneys' fees; Management contends that the Operatives commenced this litigation to obtain their reinstatement as employees, and that the outcome of the litigation primarily benefited the Operatives themselves and not the trust. We disagree.
In Alabama, when the contentions of a party in litigation are in the interest of and for the benefit of the entire trust estate, the courts will award costs and attorneys' fees from the trust estate to the party benefiting the trust estate. Wilkinson v. McCall, 247 Ala. 225, 23 So. 2d 577 (1945); Grace v. Dodge., 245 Ala. 346, 17 So. 2d 237 (1944); Coker v. Coker, 208 Ala. 239, 94 So. 308 (1923).
The issue of whether defending against an unsuccessful attempt to remove a trustee is considered a personal benefit to the trustee and not a common benefit of the trust was addressed in Weidlich v. Comley, 267 F.2d 133 (2d Cir.1959). There, Judge Learned Hand held:
267 F.2d at 134.
This Court reached a comparable decision in a similar case, Troy Bank & Trust Co. v. Brantley, 263 Ala. 428, 82 So. 2d 618 (1955). In Brantley, this Court held as follows:
From the inception of this lawsuit, the Operatives have sought to defend rights and interests which were essential to the functioning of the Eagan Trust. The original complaint filed on May 17, 1983, set forth the interests of the trust which were at stake in the unilateral discharge of one trustee by another. The complaint states, in pertinent part:
The members of the Board of Operatives were not merely attempting to protect *61 personal interests in seeking reinstatement, but, in addition, were seeking protection against removal by the Board of Management for exercising discretion in a manner which they claimed was in the best interests of the entire trust. If management had been able to fire the Board of Operatives for their activities, then no other employee trustee would feel free to question or challenge the conduct of the Board of Management trustees, and the beneficiaries would have been left without the employee representation that Mr. Eagan made an integral part of the trust.
Here, we find that the learned trial judge erred and that the Operatives are entitled to attorneys' fees pursuant to Code 1975, § 34-3-60[3] and pursuant to the indemnification guarantee contained in the bylaws of ACIPCO.
This case clearly involves the administration of a trust and, therefore, comes within the provisions of § 34-3-60. In Ingalls v. Hare, 266 Ala. 221, 96 So. 2d 266 (1957), one group of trustees attempted to remove another group of trustees from their status as trustees. The effort at removal failed and the trustees who were the object of the effort were held entitled to fees for defending themselves against it and retaining themselves in office. This Court found that "the successful defense of the several trustees who were before this court in the removal cases redounded to the benefit of the trusts involved and that such defense was made in good faith," and held, therefore, that "the trial court did not err in ordering that counsel who represented these trustees be compensated for their services out of the trusts [pursuant to Code 1940, Title 46, § 63]." 266 Ala. at 227-228, 96 So. 2d at 273. It will be noted that Code 1940, Title 46, § 63, is the predecessor to Code 1975, § 34-3-60.
In addition, we find that the Operatives are entitled to attorneys' fees pursuant to the indemnification provisions of ACIPCO's bylaws. Article IV-A of the bylaws provides as follows:
Moreover, Section 3 of Article IV-A of the bylaws makes it clear that success by one indemnified, in and of itself, entitles the successful party to indemnification without more:
The Board of Management contends that the Operatives are not entitled to attorneys' fees pursuant to the indemnity provisions, arguing that the indemnity provisions provide indemnification only to defendants in a lawsuit, not to plaintiffs. We disagree.
The requirements for indemnification set forth in the above sections are as follows: (1) Membership on the Board of Operatives, Board of Trustees, or Board of Directors; (2) status as a "party" to a civil action because of membership on one of such Boards; and, (3) action in a manner that is reasonably believed by the indemnified party "to be in or not opposed to the best interests of the Company."
Here, the Operatives, as plaintiffs, had to resort to the courts in order to defend themselves against what the trial court found, and we find, was the wrongful action of the Board of Directors. Thus, we hold that they are entitled to attorneys' fees as provided for in the indemnity provisions of the ACIPCO bylaws. Accordingly, we reverse the trial court's judgment on the issue of attorneys' fees and direct that court on remand to determine the fair and reasonable attorneys' fees and costs incurred by the Operatives, in the trial court and in this Court, in protecting their rights and duties as trustees of the Eagan Trust and to award such fees to the Operatives.
83-494-AFFIRMED.
83-543-REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
MADDOX, Justice.
OPINION MODIFIED; REHEARING DENIED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] The relevant provisions of this trust are as follows:
1. The voting stock of Acipco was left in trust to the Board of Trustees composed of the Board of Operatives and the Board of Management.
2. The Board of Trustees was to do the following:
(a) Receive dividends paid on the stock and use it, within their discretion, to insure a living wage to all employees.
(b) Use the dividends, in their discretion, to aid employees and their wives and children in times of shutdown of the plant, illness, or unavoidable layoff of employees.
(c) To vote the stock at stockholders meetings.
(d) To be trustees for employees and persons requiring the product of the company. The codicil closes with this direction by Mr. Eagan:
"The trustees, appointed by this codicil, in accepting the trust and acting hereunder will be trustees both for said employees and said persons requiring the product of said company. It is my will and desire that said trustees in the control of said company, through the control of said common stock, shall be guided by the sole purpose of so managing said company as to enable said American Cast Iron Pipe Company to deliver the company's product to persons, requiring it, at actual cost, which shall be considered the lowest possible price consistent with the maintenance and extension of the company's plant or plants and business and the payment of reasonable salaries and wages to all employees of said company, my object being to insure `service' both to the purchasing public and to labor on the basis of the Golden Rule given by our Lord and Savior Jesus Christ."
[2] The required oath is as follows:
"We, the undersigned, do hereby accept membership on this Board of Trustees under the Codicil to the Will of John J. Eagan, with a full knowledge of the provisions of his codicil, copy of which is reproduced above.
"In accepting this position of trust, we declare ourselves to be in full sympathy with the broad scope of its purposes, and acknowledge our belief in Jesus Christ, and the practical application of His teachings to industrial problems and progress.
"It shall be our irrevocable purpose so to demean ourselves in this office that the management of this trust shall be in the spirit of John Eagan: that the principles set forth in this codicil shall be the rule and guide to our conduct of the affairs entrusted to us, to the end that this institution shall be preserved and shall render `service' both to the purchasing public and to labor on the basis of the Golden Rule given by our Lord and Savior, Jesus Christ."
[3] "In all actions and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such action or proceeding may ascertain a reasonable attorney's fee, to be paid to the attorneys or solicitors representing the trust, joint or common property, or any party in the action or proceeding, and is authorized to tax as a part of the costs in such action or proceeding such reasonable attorney's fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court and to be a lien on the several parts in case of partition in kind." | July 19, 1985 |
66b38321-d7cc-498f-86f9-01b2b51dafa1 | Wozny v. Godsil | 474 So. 2d 1078 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1078 (1985)
Mary Ann WOZNY
v.
R.D. GODSIL, M.D.; The East Alabama Health Care Authority d/b/a The East Alabama Medical Center; Orthopaedic Clinic of East Alabama, P.C.; and Marvin Powell, M.D.
84-183.
Supreme Court of Alabama.
July 26, 1985.
*1079 Larry W. Morris of Radney & Morris, Alexander City, for appellant.
Charles A. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, and W. Banks Herndon of Walker, Hill, Adams, Umbach, Herndon & Dean, Opelika, for appellee Dr. Raymond Godsil.
John V. Denson of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellee East Alabama Medical Center.
W. Stancil Starnes and Carol A. Smith of Starnes & Atchison, Birmingham, for appellee Dr. Marvin Powell.
BEATTY, Justice.
Plaintiff/appellant Mary Ann Wozny appeals from an order granting summary judgment in favor of R.D. Godsil, M.D.; the East Alabama Health Care Authority d/b/a The East Alabama Medical Center; Orthopaedic Clinic of East Alabama, P.C.; and Marvin Powell, M.D. We affirm in part, reverse in part, and remand.
On November 21, 1981, Wozny injured her left ankle while playing racquetball. Unable to walk, she was taken to the East Alabama Medical Center (Medical Center) where she was examined by Dr. Marvin Powell. After X-rays were taken, Powell diagnosed Wozny's injury as a sprained ankle, although Wozny asserts that she told Powell that she was afraid she had ruptured her Achilles' tendon. Powell wrapped her ankle with an Ace bandage and told her to see an orthopaedic surgeon if her ankle did not improve. It did not improve, and on January 29, 1982, Wozny saw Dr. Raymond Godsil, an orthopaedic surgeon. Godsil diagnosed Wozny's injury as a torn Achilles' tendon, and, on February 8, 1982, Godsil surgically repaired the tendon at the Medical Center.
Two days after surgery, Wozny began experiencing pain caused by the cast that had been put on post-operatively. An employee of Godsil changed the cast, but did not inspect the operative site. Wozny saw Godsil two weeks after being discharged from the hospital. During this follow-up examination, Godsil inspected the operative site and noticed that an infection had developed. The cast was changed and Keflex, an antibiotic drug, was prescribed. When Wozny returned 10 days later, Godsil examined her ankle and told Wozny that, due to the worsening of the infection, she would need further surgery. Wozny refused to allow Godsil to perform the surgery and instead went to the University of Alabama at Birmingham Medical Center, where she underwent extensive remedial surgery. Wozny claims that, as a result of the defendants' treatment of her injury, she is disfigured and so disabled that she has had to discontinue her veterinary practice with large animals.
On July 9, 1982, Wozny filed an action against Godsil,[1] Powell, and the Medical Center, claiming negligence in their individual and collective treatment of her injury. All defendants filed motions for summary judgment supported by affidavits. In response to the motions, Wozny filed her own affidavit as a doctor of veterinary medicine, in which she contended that the defendants failed to exercise the proper standard of care in their treatment of her. Later, after experiencing difficulty in obtaining the affidavit of a physician, Wozny also submitted the affidavit of Dr. Peter E. *1080 Johnston, a doctor of osteopathy, in opposition to the defendants' motions for summary judgment. The trial court granted the defendants' motions, stating:
The primary issue presented by this appeal is whether or not the trial court abused its discretion in determining that, because a doctor of osteopathy is not a "practioner of the same school of medicine as the defendants in this case," he is unqualified, as a matter of law, to render expert testimony with respect to the applicable standards of care owed the plaintiff by any one of the defendants.
The practice of osteopathy, in conjunction with the practice of medicine, is recognized and generally defined in Code of 1975, § 34-24-50, as follows:
Generally, in order to overcome a defendant/physician's motion for summary judgment in a medical malpractice case, the plaintiff must submit competent expert medical testimony to prove that the defendant violated the standard of care set out in Code of 1975, § 6-5-484:
As a general rule, a physician of one school of medicine is incompetent to testify in a malpractice case against a physician of another school of medicine. This rule is stated at 61 Am.Jur.2d, Physicians and Surgeons, etc., § 353, p. 516 (1981):
At the outset, we note that Wozny makes no arguments with respect to her own affidavit as a doctor of veterinary medicine. She does contend, however, that the affidavit of Dr. Johnston is sufficient to bring this case under the exception set out above, because his affidavit establishes that not only has Dr. Johnston had extensive orthopaedic surgical experience, but also that the methods of diagnosis, treatment, and procedures used in the treatment of an Achilles' tendon rupture, as testified to by Powell and Godsil, are the same as that Dr. Johnston would use. The affidavit of Dr. Johnston is, in pertinent part, set out below:
Wozny cites several cases from other jurisdictions in which either an osteopath was held competent to testify against a medical doctor or vice versa. In Hundley v. St. Francis Hospital, 161 Cal. App. 2d 800, 327 P.2d 131 (1958), the court held that the testimony of an osteopath against a medical doctor was properly admitted into evidence, under the following rationale:
In Harris v. Bales, 459 S.W.2d 742 (Mo. App.1970), the court held that an osteopath was qualified to testify in a malpractice action against a medical doctor for the alleged improper reduction and treatment of a leg bone fracture. The defendant medical doctor in Harris was a general practitioner who practiced all types of surgery, including orthopaedic surgery. The proffered expert was an osteopath with a general practice. The court summarized his testimony as follows:
In holding the osteopath was qualified to testify as an expert, the court explained:
Wozny also cites Fridena v. Evans, 127 Ariz. 516, 622 P.2d 463 (1980), a malpractice case factually similar to the present case. The defendant in Fridena was a doctor of osteopathy (D.O.) and an orthopaedic surgeon, whereas the expert witness was a medical doctor (M.D.) and an orthopaedic surgeon. Thus, although in an opposite factual framework, the competency issue presented and the arguments made in Fridena are the same as those presented here with respect to defendant Godsil. In holding that the medical doctor was a competent expert witness, the court explained as follows:
Godsil and Powell contend that a medical doctor who is charged with malpractice is entitled to have his treatment tested by the rules and principles of his school of medicine, and that only a medical doctor can say what those rules and principles are and when they have been violated. That is, they contend, only a medical doctor can testify as to whether or not another medical doctor failed to exercise the requisite standard of care. Thus, Godsil and Powell maintain that the affidavit of Wozny's expert was properly excluded, as a matter of law, because the affidavit failed to show Dr. Johnston had received any training whatsoever in the school of medicine.
Godsil and Powell also cite cases from other jurisdictions in which, for various reasons, an osteopath was not permitted to testify against a medical doctor or vice versa. In Forthofer v. Arnold, 60 Ohio App. 436, 21 N.E.2d 869 (1938), the Ohio Court of Appeals affirmed the trial court's withdrawal of all of the expert testimony *1085 given by two osteopaths in a malpractice suit brought against a medical doctor. The Court in Forthofer explained that the trial court excluded their testimony "for the reason that the evidence of said osteopaths did not indicate that they possessed any knowledge whatsoever as to the standards of skill, care and diligence exercised by physicians and surgeons of the school of medicine to which the defendant belonged." (Emphasis added.) 60 Ohio App. at 439, 21 N.E.2d at 871. The Court in Forthofer went on to state the general rule that "the care, skill and diligence exercised by the defendant is to be judged by that standard of ordinary care which ordinarily is exercised by physicians and surgeons of the same school of medicine, "but without stating the widely recognized exception. The Court then held that, absent the testimony of the osteopaths, there was "no evidence from which the jury could determine the standard of care, skill and diligence by which the defendant's conduct was to be judged. On that subject there was accordingly a failure of proof." 60 Ohio App. at 439, 21 N.E.2d at 871.
Powell cites the case of Bryant v. Biggs, 331 Mich. 64, 49 N.W.2d 63 (1951), in which the Supreme Court of Michigan affirmed verdicts directed in favor of the defendant osteopaths, where the plaintiff's principal witness was a licensed physician and surgeon who testified as follows:
The court in Bryant v. Biggs, supra, quoted the general rule and exception thereto as it is stated at 61 Am.Jur.2d, § 1353, quoted supra, and explained:
The court also quoted from an earlier Michigan case, Janssen v. Mulder, 232 Mich. 183, 190, 205 N.W. 159, 1611 (1925), in which it was said with respect to the plaintiff's burden of proof:
The court in Bryant followed a line of cases including Frothofer v. Arnold, supra, in which it was shown the expert had either insufficient knowledge of the standards and methods of treatment of the defendant's school (Sima v. Wright, 268 Mich. 352, 256 N.W. 349 (1934), or insufficient knowledge upon which to base his (the expert's) opinion that there were no differences in the methods of treatment of the two schools (Bush v. Cress, 181 Minn. 590, 233 N.W. 317 (1930)). The court then concluded:
Powell and Godsil further rely on the case of Caro v. Bumpus, 30 Colo.App. 144, 491 P.2d 606 (1971), involving a malpractice action against an osteopath. In that case, the court briefly discussed the exception to the general rule, but held that plaintiff's proffered expert witnesses failed to qualify under that exception:
Powell and Godsil also cite Whitehurst v. Boehm, 41 N.C.App. 670, 255 S.E.2d 761 (1979), where the court held that an orthopaedic surgeon (medical doctor) was incompetent to testify against a podiatrist, reasoning as follows:
It is clear from the preceding analysis of the authorities cited to us by both sides that the prevalent and the modern view is to recognize the exception to the general rule, provided there is an adequate showing on the relevant criteria; that is, even if the defendant and the witness are of different schools of practice, the witness may nevertheless be competent to testify on those standards as to which the principles of the schools do or should concur, such as matters of diagnosis or the existence of a condition that should be recognized by any physician. Accord Ashburn v. Fox, 233 So. 2d 840 (Fla.Dist.Ct.App. 1970), cert. dismissed, 242 So. 2d 873 (Fla. 1971). The cases discussed above also recognize situations in which an expert witness may be competent to testify where he is knowledgeable (by way of either study and training or experience) of the methods and standards of practice (i.e. skill, care, and diligence) exercised by practitioners of the defendant's school, particularly with respect to the diagnosis, treatment, etc., of the specific injury, illness, or ailment involved. We adopt this view, and we, therefore, cannot affirmatively state, as a matter of abstract law, that an osteopathic doctor can never, ipso facto, offer expert testimony in a malpractice case against a medical doctor, regardless of the experience, expertise, etc., of the osteopath or regardless of whether the two schools concur as to the standards and methods of treatment involved.
The qualifications of a proffered expert and the question of whether the two schools do indeed concur in the standards and methods involved are factual determinations. While we recognize that the ultimate question of whether a witness is qualified to render expert testimony in a given case rests within the sound discretion of the trial court, Burroughs Corporation v. Hall Affiliates, Inc., 423 So. 2d 1348, 1353 (Ala.1982), we do not believe sufficient facts have been adduced in this case to enable the trial court to properly exercise that discretion. In light of the exception recognized herein, it is necessary, especially in the context of a motion for summary judgment, that a more complete and thorough examination be made of the witness's knowledge and experience, as well as the similarity of the standards, methods of treatment and diagnosis, etc., exercised by practitioners of the defendants' school and the witness's school, with respect to the particular injury in question.
Dr. Johnston, the proffered expert, has furnished sufficient evidence by way of affidavit to create a reasonable inference of his competency as an expert witness against both defendant doctors. Not only has he stated that "[t]he standards of skill in diagnosis and treatment by doctors of medicine are identical to those of doctors of osteopathy" with respect to plaintiff's injury, but he has also shown that he has had extensive orthopaedic surgical training and expertise as well as selection, training, and supervisory experience as a doctor on the medical staff of a hospital. The defendants, in turn, claim in their affidavits that they exercised the requisite degree of care, skill, and diligence in treating the plaintiff and that Dr. Johnston is not qualified nor competent to render expert testimony against these defendants because he is not a medical doctor. Otherwise, they have made no factual showing of his incompetency under the criteria relevant to the applicability of the exception recognized herein.
*1088 We preserve, however, the right of the trial court in its discretion to weigh the facts which may be adduced at a later hearing dealing with Dr. Johnston's competency; thus, we do not undertake to rule on that issue at this point. It is yet to be resolved whether, after a further hearing on and examination of the criteria relevant to application of the exception, there is indeed sufficient concurrence between the two schools or whether Dr. Johnston does possess the requisite knowledge.
We next consider the propriety of summary judgment in favor of the Medical Center. In the first amendment to her complaint, Wozny stated a claim against the Medical Center, alleging that it, through its agents, servants, and employees, "negligently allowed and negligently permitted her ankle to become infected, and negligently allowed and negligently permitted the plaintiff to believe she was being properly treated, when in fact, she was not being properly treated and cared for." In the second amendment to her complaint, Wozny added Dr. Powell as a defendant and alleged negligence in his treatment of her while he "was a practicing physician at the Emergency Room of the Medical Center."
The Medical Center contends that it was entitled to summary judgment because Wozny, in opposition to the motion, failed to put forth a scintilla of evidence establishing negligence on the part of the Medical Center or its employees. It further asserts that Powell is not an employee of the Medical Center; rather, that he is an independent contractor hired by the Medical Center to provide emergency room service, but over whom it exercised no control, citing Odess v. Taylor, 282 Ala. 389, 211 So. 2d 805 (1968). We note, however, that in its motion for summary judgment, the Medical Center failed to raise the issue of Powell's status as an independent contractor. Nor was the issue raised in either the Medical Center's or Powell's answers to Wozny's complaint. Indeed, Powell "admits that on or about November 20, 1981, he was a practicing physician at the emergency room of the Medical Center," with no mention of independent contractor status. Consequently, since the issue of Powell's status as either an employee or an independent contractor was not before the trial court, summary judgment in favor of the Medical Center cannot be upheld on that basis.
Nevertheless, in opposition to the motion for summary judgment, Wozny failed to adduce a scintilla of evidence as supporting a claim of negligence against any other agents, employees, or servants of the Medical Center, and to that extent, summary judgment in favor of the Medical Center was proper.
For the foregoing reasons, the judgment is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
FAULKNER,[2] JONES, ALMON and SHORES, JJ., concur.
[1] Wozny also named as defendant Orthopaedic Clinic of East Alabama, the clinic with which Godsil is associated, but we refer only to defendant Godsil because his alleged negligence is imputed to the Clinic by virtue of his association with it.
[2] Chief Justice Torbert sat for oral argument of this case, but recused himself after its submission. Justice Faulkner, although not sitting at oral argument, has studied the briefs and listened to the tape of oral argument. | July 26, 1985 |
11a7eb6f-aaf7-4976-8b4d-1faa90837ef4 | Central Bank of the South v. Dinsmore | 475 So. 2d 842 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 842 (1985)
CENTRAL BANK OF THE SOUTH (formerly Central Bank of Birmingham), an Alabama Banking corporation
v.
J. Wilson DINSMORE, et al.
83-716.
Supreme Court of Alabama.
July 26, 1985.
Rehearing Denied August 30, 1985.
*843 Stanley M. Brock of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, for appellant.
M. Wayne Wheeler, Birmingham, for appellee Dinsmore.
Douglas Corretti and Mary Douglas Hawkins of Corretti & Newsom, Birmingham, for appellees L.O.C. Properties, O.N. Todd, Jr. and Lois S. Todd.
Palmer W. Norris, Gardendale, for appellee Corrine Smith.
FAULKNER, Justice.
J. Wilson Dinsmore brought an action against Central Bank, seeking to enjoin the bank from foreclosing on a mortgage. After a hearing on the merits the trial court ruled that the mortgage in question was void because the signatures of the mortgagors were neither witnessed nor acknowledged as required by Alabama law. The court permanently enjoined Central Bank from foreclosing on the mortgage, and the bank appeals.
Roy and Laurie Todd were the principal owners of A-R-A Automotive of Alabama, *844 Inc. (A-R-A). In May of 1978 Roy Todd began negotiations with Central Bank which culminated in a $100,000.00 loan from the bank to A-R-A. Roy and Laurie executed a demand note to Central Bank on behalf of the corporation, which was the only obligor on the note. To secure A-R-A's obligation to the bank, Roy agreed to mortgage his home and to obtain an accommodation mortgage to Central Bank on a commercial building, the Age-Herald Building, which was then owned by a partnership, L.O.C. Properties. L.O.C. was composed of three persons, Roy's parents, O.N. and Lois Todd, and one of their business associates, Corrine Smith.
The bank prepared a four-page document entitled "ACCOMMODATION MORTGAGE" which stated that A-R-A was indebted to Central Bank in the amount of $100,000.00 and that the mortgagors, "LOC Properties, a partnership and Roy S. Todd and wife, Laurie Todd," agreed to execute a mortgage to the bank covering the two aforementioned parcels of property. According to Roy, Central Bank's loan officer gave him only page four of the mortgage and he agreed to procure the necessary signatures and return the instrument to the bank. The loan officer testified that he did not remember whether he gave Roy the entire document or only one page of it.
Roy and his wife signed the document and Roy took it to his father's place of business and left it with him. His father signed the document and took it to his wife and to Corrine Smith, who also signed it. Each of the signatories to the mortgage testified unequivocally that he or she was presented with only a one-page document. Lois Todd and Corrine Smith testified that they were unaware that they were signing a document purporting to give the bank a mortgage on the Age-Herald property. They testified that they thought the document was a "reference" to help Roy obtain a loan.
Roy's father then carried the document to a notary to obtain a certification of the signatures. The notary public testified that he had no recollection of the events surrounding the attestation. When he notarized the document, the notary wrote the words "above signed" in the blank space in his acknowledgment rather than referring to the signatories individually.
O.N. Todd returned the document to Roy, who then returned the document to the bank, which disbursed the loan proceeds. The bank recorded the instrument in the Probate Court of Jefferson County. As recorded on that occasion, the instrument appeared to be regular on its face except for the questionable certification by the notary which stated that he had acknowledged the "above signed" signatures.
Subsequently, the title company informed Central Bank that there was a problem with the acknowledgment on the mortgage. The instrument was then re-recorded in the probate court. The instrument as subsequently recorded contained its original contents plus a fifth page. The fifth page contained two separate notary-public certifications by an employee of the bank. The first certification acknowledged the signatures of "O.N. Todd, Jr., Lois S. Todd, Corrine Smith, partners." The second certification acknowledged the execution of the document by "Roy S. and Laurie W. Todd."
Subsequent to the re-recording of the document, the bank apparently noticed that the notary acknowledgments contained on page five were not dated. The five-page document was again recorded. This time the acknowledgments on page five were dated.
All of the signatories to the mortgage denied having ever appeared before the bank employee who made the certification on page five. The three partners of L.O.C. denied having ever been inside the branch office where the notary worked. The notary had no recollection of the circumstances of the certification, but testified that she had never taken an acknowledgment of a person who had not appeared before her.
In the spring of 1981 Dinsmore began negotiations with L.O.C. for the purchase of the Age-Herald Building. The negotiations culminated in an agreement whereby *845 Dinsmore agreed to execute a note to L.O.C. for $150,000.00, plus interest. L.O.C. agreed to pay all indebtedness to Central Bank which was secured by the mortgage on the property.
Dinsmore made timely payments to L.O.C.. A-R-A, however, defaulted on its obligation to Central Bank. Central Bank gave notice of a foreclosure sale of both parcels. Dinsmore filed an action seeking to enjoin the foreclosure as to the Age-Herald Building, and a temporary restraining order restraining the bank from foreclosing on that property was issued. The foreclosure proceeded on the Todds' residence. Thereafter, the parties agreed that the TRO would be dissolved, and that a trial on the merits of the injunction would be held. Dinsmore began paying into court the monthly payments on his obligation to L.O.C.
The trial court refused to invalidate the mortgage based on the assertions by some of its signatories that they were ignorant of the nature of the document. While the court found that the putative mortgagors were presented with only page four of the mortgage to sign, the court concluded that, given the totality of the circumstances, if the partners were unaware of the true nature of the document it was due to their lack of diligence. It is apparent from looking at page four of the mortgage that it was the last page of a multi-page document. Moreover, the language on page four was sufficient to suggest the nature of the instrument. None of the partners inquired about the contents of the missing pages.
The court did rule, however, that the mortgage was invalid, based on its finding that the signatures of Lois Todd and Corrine Smith were neither witnessed nor acknowledged as required by law. Sections 35-4-20 through -24, Code of Alabama 1975. Furthermore, the court concluded that the doctrine of equitable mortgage did not preserve Central Bank's lien because there was no obligation due from the mortgagors to the mortgagee. Murphy v. Carrigan, 270 Ala. 87, 91, 116 So. 2d 568 (1959).
In this case the only obligor of the note secured by the mortgage was A-R-A.
Instruments conveying land must be attested by a witness, or, where the conveying party cannot write, by two witnesses; or it must be acknowledged by a notary or some other officer provided for by law. Sections 35-4-20, -23, and -24. In order for an acknowledgment to be effective it must clearly identify the person or persons who executed the conveyance, and the person signing the instrument must have appeared before the notary or other officer and acknowledged that he signed the instrument. Thomas v. Davis, 241 Ala. 271, 2 So. 2d 616, 619-20 (1941); Fies & Sons v. Lowery, 226 Ala. 329, 331, 147 So. 136 (1933).
Where it is alleged that an acknowledgment in a deed is insufficient, the burden of proof is on the person attacking the validity of the certificate of acknowledgment. The certificate of a notary is presumptively correct, and the evidence necessary to impeach it must be clear and convincing. Henslee v. Henslee, 263 Ala. 287, 82 So. 2d 222, 225 (1955).
Central Bank argues that there was insufficient evidence to support the trial court's finding that the notary public's acknowledgment was void. To support that argument, Central Bank relies on a line of cases holding, in effect, that testimony by a mortgagor that he did not appear before the notary and voluntarily assent to the conveyance is insufficient without additional evidence of a more objective nature to overcome the presumption that the certificate of acknowledgment is valid. Fies & Sons v. Lowery, 226 Ala. 329, 332, 147 So. 136 (1933); Smith v. McGuire, 67 Ala. 34, 39 (1880).
In our opinion, the evidence regarding the facts surrounding the execution of the acknowledgments was sufficient to support the trial court's finding that none of the partners other than O.N. Todd appeared before either notary. There was sufficient evidence to uphold a finding that the presumption of validity of the certifications *846 was overcome. The simple fact that the bank saw fit to add a second acknowledgment by a different notary after the instrument was filed indicates that the bank entertained some doubts about the validity of the first acknowledgment. A second acknowledgment was made six months after the document was executed. None of the partners were customers of the bank and they denied having ever been in the bank.
We turn, then, to the question of the equitable lien. In general, when a mortgage is invalid due to a technical defect, equity will give effect to the intent to the parties according to the substance of the transaction. Lewis v. Hickman, 200 Ala. 672, 675, 77 So. 46, 49 (1917). A mortgage instrument which lacks proper attestation or acknowledgment will be given effect as an equitable mortgage. Courtner v. Etheredge, 149 Ala. 78, 43 So. 368 (1907). In concluding that an equitable lien did not exist in this case, the trial court relied on the following language in Murphy v. Carrigan, 270 Ala. 87, 91, 116 So. 2d 568 (1959):
The requirement that the debt be "due from the mortgagor to the mortgagee" may also be found in Barnett v. Waddell, 248 Ala. 189, 27 So. 2d 1, 4 (1946), and Jones v. Stollenwerck, 218 Ala. 637, 639, 119 So. 844 (1929). None of these cases involves an accommodation mortgage, however. Each of them involves a defective mortgage given to secure the debt of the mortgagor, not the debt of a third party. Nor do any of the cases turn on the existence, vel non, of such a debt. The language in question was unessential to the resolution of the issues presented in those cases. Since the language in question was dictum, the statements in question are not binding; they constitute persuasive authority only.
Central Bank argues that this case is governed by Hooper v. Reed, 211 Ala. 451, 100 So. 875 (1924). That case involved a deed in absolute form given as a mortgage. A agreed to sell a parcel of real estate to B. B borrowed the cash for the down payment from C. A executed a deed of conveyance to C intended as a mortgage to secure the loan. This Court concluded that if the parties to such a transaction intended for the deed to operate as a mortgage an equitable mortgage resulted. With regard to the fact that the grantor, A, did not owe any debt to C, this Court stated:
If the rule in the Murphy opinion were extended to cover accommodation mortgages, anomalous results would obtain. For purposes of illustration, suppose that in order to secure A-R-A's loan, L.O.C. had given Central Bank a deed in absolute form conveying the bank title to the Age-Herald Building. Assuming the intention of the parties was to create a mortgage instead of a fee interest, an equitable mortgage would have been created under the rule in Hooper and L.O.C. would be entitled to have title revested upon payment of the debt. Given the fact that the doctrine of equitable mortgage would have operated in L.O.C.'s favor if it had inadvertently conveyed to Central Bank a greater interest than it intended, we see no reason in equity or logic for the doctrine to be unavailable to the bank in the converse situation. Nor are we able to find any case from this jurisdiction or any *847 other in which a court has ruled that a failed attempt at creating an accommodation mortgage, such as the one at bar, cannot form the basis for an equitable mortgage because the debt to be secured by the mortgage was another's.
The rule in Murphy should not be extended to cover accommodation mortgages. If a party attempts to create a mortgage to secure another's debt by executing a document which is formally insufficient, the doctrine of equitable mortgage should apply as it would in a case where a party executes a deed in absolute form intending to create a mortgage. Hooper, supra.
The trial court's decision is hereby reversed and the case is remanded for entry of an order consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, ALMON and ADAMS, JJ. | July 26, 1985 |
3035e51d-ff69-45c1-ae78-3357d7b5b5b8 | MacMillan Bloedell, Inc. v. Ezell | 475 So. 2d 493 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 493 (1985)
MacMILLAN BLOEDELL, INC.
v.
Earlie EZELL, Bennie Elmore Spears, Ada Mae Spears Bolden, and C.J. Spears.
83-392.
Supreme Court of Alabama.
July 19, 1985.
Rehearing Denied August 23, 1985.
*494 N. Lee Cooper of Maynard, Cooper, Frierson & Gale, and James L. Goyer III of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, Marcus McConnell, Jr. and William C. Brewer, III, Livingston, and Donald P. Scurlock, III, Butler, for appellant.
William L. Utsey of Utsey & Charistopher, Butler, for appellees.
SHORES, Justice.
On July 26, 1978, MacMillan Bloedel, Inc. (MacMillan), purchased forty acres of land located in Choctaw County from C.B. Hightower III and his wife Brenda Hightower. On May 28, 1980, MacMillan filed an action in the Circuit Court of Choctaw County to quiet title, naming Azariah Spears as a defendant, after it had learned that he was in possession of and claiming to own that land.[1] Spears counterclaimed for damages in trespass, alleging that MacMillan had wrongfully cut his timber, and the case was subsequently tried before a jury. During the trial, MacMillan amended its complaint to state a cause of action in the nature of ejectment.[2] The trial court directed a verdict in favor of Spears on the quiet title claim, and the trial proceeded on MacMillan's statutory ejectment claim and Spears's counterclaim for trespass. The jury rendered a verdict in favor of Spears on the ejectment claim and awarded him $6,000.00 in damages on his counterclaim. The trial court entered a judgment on the verdict, from which no appeal was taken by MacMillan. Thereafter, on October 27, 1981, MacMillan filed a second statutory ejectment action, again naming Spears, and also his granddaughter, Earlie Ezell, as defendants.[3] Spears counterclaimed for abuse of process, his claim arising from the commencement of the second ejectment action.[4] On September 22, 1982, Spears died, and MacMillan revived its ejectment claim against his remaining heirs.[5] The heirs filed a motion for a judgment on the pleadings or, in the alternative, summary judgment, asserting that the prior judgment in the first ejectment action was a bar to the second under the principles of res judicata and collateral estoppel. The trial court granted the motion with the following order:
MacMillan appeals. We affirm.
Relying on § 6-6-298, Ala.Code 1975, MacMillan contends that it should be allowed to retry the issue of title in a second ejectment action. We disagree.
Section 6-6-298 reads as follows:
At common law, ejectment is a purely possessory action. 25 Am.Jur.2d Ejectment § 1 (1966). It originated in the English courts and provided for the recovery of damages for the wrongful ejectment or ouster of one who had a term of years in land. It evolved into a remedy not only for the recovery of damages, but also possession of land affected by tenancies for years, and later, by the introduction of certain fictions, was enlarged by the courts to provide a means for one claiming the title to a freehold to recover possession.
As it was originally a term which was to be recovered by the judgment in ejectment, it was necessary that a term be created and, as the injury complained of, by definition, was the loss of possession, it was also necessary that the person to whom the term was given should be ejected from the land. Consequently, the claimant of a freehold was required to enter upon the land and execute a lease to a friend for a term of years. This friend then brought an action in ejectment and proved his entry under the lease and his ouster by the tenant in possession. Since the friend's claim under the lease could only be founded upon the title of the claimant, it was necessary for him to prove the claimant's title in the land in order to obtain a verdict. The claimant's title was thus determined. The writ of possession was issued in the friend's name, but as he had prosecuted the action only as the agent of the claimant, he would immediately give up possession to him.
Later, the fiction of casual ejector was set up, and it became the practice for the claimant of a freehold who desired to establish his title and recover the possession of land in this form of action to enter upon the land and there execute a lease to some friend (lessee) and leave him in actual possession, the lessee remaining there until some other friend, called the "casual ejector," came and turned him out. For this injury, the lessee brought his action against the "casual ejector," who was bound, under a rule of court, to give notice to the tenant in possession that he had been sued and would make no defense, and that unless the tenant in possession should defend, he would be turned out. This served as process to the tenant in possession, who then appeared and defended by permission of the court and became the real defendant in the suit. Subsequently, the lease and the partiesthe plaintiff (lessee) and the casual ejectorbecame fictitious. The tenant in possession, as a condition of being allowed to appear and defend, was required to enter into what was called *496 "the consent rule," whereby he agreed to confess the lease, entry, and ouster, and to plead not guilty. This requirement obviated the necessity of proof on the points admitted and left the parties at the trial with only the claimant's title to be determined.
The effect of a judgment in ejectment at common law was originally to award possession to one who had a term of years in land; therefore, there was no limit to the number of actions which could be brought to recover the possession of the same land. Furthermore, the evolution of ejectment into a method for the claimant of a freehold to litigate his legal title and thereby recover the possession did not serve to add finality to the judgment. Each such action was based upon the fiction of a different lease, entry, and ouster, and, as the fictitious parties and the cause of action were not the same, the determination of the title was technically not within the principles of res judicata. While the difference between the parties was only nominal and in the cause of action only technical, courts nevertheless refused to apply the general principles of res judicata to such actions, supposedly because, by the common law of England, the title and right to the possession of the land were regarded with special favor, and it was thought that such important rights should not be finally determined in one action. Adams on Ejectment, pp. 1-17, 351; W. Blackstone, Commentaries on the Laws of England, Book Three, Chapter 11 (1966); Carr v. Mouzon, 93 S.C. 161, 76 S.E. 201 (1912). For these reasons, the judgment in ejectment at common law is never considered final. Camp v. Forrest, 13 Ala. 114 (1848); Pritchard v. Fowler, 171 Ala. 662, 55 So. 147 (1911); 25 Am. Jur.2d Ejectment § 125 (1966).
The legislature in Alabama, in an effort to find a capable and efficient substitute for the common law action in ejectment, which, as shown, is enveloped in fictions, enacted the statutory provisions now codified at § 6-6-280, Ala.Code 1975, which reads as follows:
See Henry v. Thorpe, 14 Ala. 103 (1848); Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). Clay's Digest, p. 320, §§ 43, 44, 45, 46.
The alternate form of action prescribed in subsection (b) is, in effect, an action of ejectment as at common law, only stripped of the cumbersome forms and fictions which are characteristic of that form of action. Lomb v. Pioneer Savings & Loan Co., 106 Ala. 671, 17 So. 670 (1895). It is possessory in nature, as is its common law counterpart. Therefore, it remains incumbent upon the plaintiff to prove a right *497 to possession at the time of the commencement of the action. State v. Broos, 257 Ala. 690, 60 So. 2d 843 (1952); Betz v. Mullin, 62 Ala. 365 (1878); Salter v. Fox, 191 Ala. 34, 67 So. 1006 (1915). The plaintiff may allege and prove that he either has the legal title to, or was possessed of, the land and that the defendant entered thereupon and unlawfully withholds and detains it. Atlas Subsidiaries of Florida, Inc. v. Kornegay, 288 Ala. 599, 264 So. 2d 158 (1972).
As at common law, the plaintiff must prevail on the strength of his own legal title or claim to possession and not on the weakness of the defendant's. Miller v. Jones, 280 Ala. 612, 196 So. 2d 866 (1967). Although he may, the defendant is not required to show legal title or a right to possession in himself. Therefore, even against one with no title or right to possession, the plaintiff cannot prevail unless he meets his burden of proof. 25 Am.Jur.2d Ejectment § 19 (1966).
Section 6-6-298, supra, changed the common law rule that a judgment in ejectment is never final by making two judgments in favor of a defendant a bar to further action by the plaintiff for the recovery of the possession of the land. Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3 (1898). Its purpose is to limit to two the number of actions that can be brought by an unsuccessful party to recover the possession of the land, whereas the common law placed no limit upon such actions. Reynolds v. Henson, 277 Ala. 424, 171 So. 2d 240 (1965). However, the legislature's elimination of the fictions, which, as they developed at common law, precluded the finality of a determination of the legal title, has allowed the simplified form of an action in the nature of ejectment to develop in Alabama, not only as an efficient means for the adjudication of the right to possession, but also as a favored action for the trial of the legal title to land, that action being similar in nature to both an action in trespass and an action to quiet title. Kelley v. Mashburn, 286 Ala. 7, 236 So. 2d 326 (1970); McCormick v. McCormick, 221 Ala. 606, 130 So. 226 (1930); Vasko v. Jardine, 346 So. 2d 962 (Ala.1977); Findlay v. Hardwick, 230 Ala. 197, 160 So. 336 (1935).
In the present case, MacMillan alleged in the first ejectment action that it had the legal title to the land in question. Spears counterclaimed for damages in trespass, alleging that he had the title. The verdict and judgment in the first action were rendered against MacMillan in its ejectment claim and in favor of Spears on his counterclaim for trespass. MacMillan does not dispute that the issue dispositive of both claims, legal title, was fully litigated and resolved in the first trial. Therefore, it follows that MacMillan should be barred from disputing that title in a subsequent ejectment action, just as it would be had Spears filed his trespass action first, put his legal title in issue, and prevailed. Waldrep v. Goodwin, 348 So. 2d 491 (Ala. 1977); see, also, Cooper v. Cooper, 418 So. 2d 877 (Ala.1982).
MacMillan cites us no authority that directly supports its position, but it names six previous decisions of this Court that it contends should be controlling. Frazier v. Malone, 387 So. 2d 145 (Ala.1980); Williamson v. Mayer Bros., supra; Stanton v. Government National Mortgage Association, 380 So. 2d 292 (Ala.1980); Reynolds v. Henson, supra; McCormick v. McCormick, 221 Ala. 606, 130 So. 226 (1930); and Moore v. McLean, 248 Ala. 9, 26 So. 2d 96 (1946). These decisions correctly state Alabama law; however, they are readily distinguishable from the present case.
The Court in Frazier v. Malone, supra, considered an action brought by Ernest Frazier for relief from a previous default judgment in favor of Minnie Malone in a prior action brought by her against him in the nature of an action of ejectment and not a subsequent ejectment action. In McCormick v. McCormick, supra, the Court had before it a subsequent bill for partition of land among tenants in common, rather than a second ejection action. And in Moore v. McLean, supra, McLean filed a bill in equity to establish her claim to certain lands which had previously been the subject of an ejectment action wherein a default judgment had been entered against her. In all three of these previous cases, the Court held the prior judgment in ejectment to be binding.
*498 In Williamson v. Mayer Bros., supra, Stanton v. Government National Mortgage Association, supra, and Reynolds v. Henson, supra, the Court was concerned with two ejectment actions brought by the same plaintiff against the same defendant for recovery of the same land and, citing either § 6-6-298 or one of its predecessors, refused to give res judicata effect to the first judgment in each case, thus allowing the second action. However, in those cases, contrary to the instant case, there was no actual adjudication of the legal title between the parties in the first action.
Therefore, we hold that § 6-6-298 is not applicable to an action in the nature of an action in ejectment for the recovery of land wherein the issue of the legal title is litigated fully and resolved between the parties.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
[1] John Bolden was also named as a defendant, but was later dismissed by the trial court. It appears from the record that Bolden was not in possession of or claiming to own any interest in the land.
[2] See § 6-6-280(b), Ala.Code 1975.
[3] Because of his advanced age, Spears had moved off the land and in with his daughter, Ada Mae Spears Bolden. Earlie Ezell moved into his house, located on the land in question.
[4] This counterclaim was subsequently dismissed by the trial court and is not at issue on this appeal.
[5] The defendants in the present case are Earlie Ezell, Bennie Elmore Spears, Ada Mae Spears Bolden, and C.J. Spears. | July 19, 1985 |
05ab1c68-ec75-487a-bd24-ad216d7d2351 | Rose v. Davis | 474 So. 2d 1058 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1058 (1985)
Don ROSE and "S & R Partnership"
v.
James R. DAVIS.
83-1107.
Supreme Court of Alabama.
July 19, 1985.
Christopher L. McIlwain of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellants.
Ralph I. Knowles, Jr. of Drake, Knowles & Pierce, Tuscaloosa, for appellee.
MADDOX, Justice.
This appeal involves an alleged breach of a contract to construct a fish pond. Central to a determination of the questions raised on appeal is whether the contract was made with an individual in his individual capacity, or with the individual in his capacity as a partner in a partnership.
After a trial by jury, the jury returned a verdict in favor of the plaintiff and against the defendants in the amount of $12,000, plus interest and costs.
Don Rose and "S & R Partnership," defendants below, appeal from the judgment entered upon the jury verdict in favor of *1059 plaintiff Davis, and present three issues for review, as follows: (1) Whether the trial court erred by proffering verdict forms which allowed only joint liability, as opposed to individual liability; (2) Whether the plaintiff materially breached the contract, thereby excusing further performance by the defendants; and (3) Whether the jury's assessment of damages was based on speculation and conjecture. After a review of the arguments made by the parties in their briefs, we hold that the trial court did not commit error; therefore, its judgment is due to be affirmed.
Before discussing the facts and the law, we point out that defendant James Sprinkle did not appeal.
The facts of this case, briefly stated, are as follows:
In the summer of 1981, Davis, the owner, and Sprinkle, the contractor, entered into a contract whereby Sprinkle would construct a fish pond on Davis's land. Davis and Sprinkle agreed that the cost of the pond would not exceed $6,000, and that Davis would pay Sprinkle weekly according to the hourly rate for the use of certain machinery. In addition, the two agreed that the pond would meet certain height and width requirements. Rose, Sprinkle's co-defendant, was aware of the contract with Davis. In fact, Rose and Sprinkle, just prior to the execution of the Davis contract, had formed the "S & R Partnership" to build ponds. Rose and Sprinkle's partnership agreement called for the splitting of all profits and losses incurred in the building of ponds and lakes.
Sprinkle commenced work on Davis's land at the end of August 1981. Sprinkle continued to work on the land for approximately one month. On August 27, Sprinkle told Davis he would not continue to work unless he was paid. On that day, Davis made a third payment to Sprinkle for $3,000. The total amount paid by Davis under the contract was $5,709.50, but Davis's payments were not made on a regular weekly basis. By the end of August, charges submitted to Davis totaled approximately $6,569.50.
The jury returned a verdict for Davis in the amount of $12,000. Rose and "S & R Partnership" appeal.
Rose and the partnership contend that the trial judge erred in submitting verdict forms to the jury which failed to afford the jury an opportunity to delineate between the relative liability of the defendants. Under the facts of this case, we find no error.
It is undisputed that Rose and Sprinkle were partners in the "S & R Partnership," and it is also undisputed that they entered the partnership intending to build ponds and to share profits and expenses incurred in their business.
In view of this evidence, the law relative to partnerships is applicable.
Rose testified that he was aware that Sprinkle had entered into a contract with Davis, and he also testified that he and Sprinkle planned to split any profits from the venture. The contract executed by Sprinkle was for the kind of work the partnership was created to perform; therefore, it is clear that the jury was authorized to find that Sprinkle's actions bound Rose and "S & R Partnership" under Code 1975, § 10-8-49.
Furthermore, Code 1975, § 10-8-52, provides:
Appellants cite Hoffman v. Chandler, 431 So. 2d 499 (Ala.1983), in support of their argument that the trial judge should have proffered verdicts to the jury which would have allowed the jury to find individual, as opposed to joint, liability. We believe Hoffman is distinguishable from the instant case. In Hoffman, this Court reversed a jury verdict in favor of the plaintiff and against an ERISA trust and two individuals who acted as trustees of the trust. The basis of the reversal was the trial court's failure to proffer verdict forms to the jury which applied to each viable alternative verdict. Specifically, the Court found that the trial judge erred when he submitted verdict forms to the jury which "failed to afford the jury any opportunity to delineate between the relative guilt" of the two individual defendants. According to the Court,
431 So. 2d 505.
After reviewing the pleadings, the evidence, and the court's instructions to the jury, we are convinced that the principle of Hoffman should not apply here.
For example, the court in this case instructed the jury, as follows:
There was no objection made that this instruction should have been qualified, and the appellants have pointed to no requested instruction which would have clearly stated their positions regarding any individual liability of the defendants.
The defendants did object to the general verdict forms, as follows:
*1061 Assuming, without deciding, that the objection made preserved the claimed error,[1] we believe any error was at most harmless, because Rose did testify, as the trial judge noted, that he (Rose) was aware of the contract. Unquestionably, the partnership had been formed. We believe that these facts are, therefore, distinguishable from those in Hoffman.
Based on the foregoing, we find that the trial court did not err in refusing to instruct as to individual liability as opposed to joint liability.
Defendants contend that Davis materially breached the contract, thereby excusing further performance by them.
According to the Restatement (Second) of Contracts § 241 (1976), circumstances significant in determining whether a breach is material include:
In the present case, Davis had tendered all but $290.50 of the contract price when Sprinkle stopped work on the site. Yet, the pond was less than half complete, according to plaintiff's theory of the case. Under these circumstances, it cannot be said that Davis's breach by nonconforming payment was material.
Davis had substantially performed his contract obligations at the time of the breach; therefore, the defendants were not excused from further performance under the contract.
The defendants contend that the jury's assessment of damages was based on speculation and conjecture.
The trial judge instructed the jury on the issue of damages as follows:
The defendants interpret this instruction to mean that Davis was required to proffer evidence as to the value of the pond as completed, and as to the value of the pond had the contract been fulfilled. We disagree. We believe that the judge's charge meant that the measure of damages would be the amount required to place the plaintiff in the same position he would have been in had the contract been performed. There was expert testimony at trial that it would require approximately $15,000 to complete the pond in accordance with the contract specifications. We recognize that the evidence was conflicting on the "contract specifications," but the amount of damages to be awarded, if any, is largely left to the discretion of the jury. Feazell v. Campbell, 358 So. 2d 1017 (Ala.1978). Appellants, in their brief, argue:
In Fox v. Webb, 268 Ala. 111, 105 So. 2d 75 (1958), which is cited with approval in Lowe v. Morrison, 412 So. 2d 1212 (Ala. 1982), this Court, citing one of its prior cases, opined:
Appellants, in a reply brief, state:
We do not believe the holding in Lowe v. Morrison conflicts with the portion of Fox v. Webb which we have emphasized, because the Court in Lowe v. Morrison, cites Annot., 76 A.L.R.2d 805 (1961), as its authority, and in that annotation, Fox v. Webb is included as a case which follows this proposition.
"The difference between the contract price and what it would cost to make the structure conform to the plans and specifications has sometimes been held the measure of damages where it appears the agreement was not substantially performed." Fox v. Webb, supra.
Upon a consideration of the arguments and the law, and applying that law to the evidence adduced, we cannot say that the jury verdict awarding the plaintiff $12,000 was based on speculation and conjecture.
The judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] Rule 50, Ala.R.Civ.P., states, in part:
"Additional instructions shall be submitted in writing, except that with respect to any additional instruction taken from Alabama Pattern Jury Instructions, it shall be sufficient to identify said instruction on the record by reference to the number and title of said pattern jury instruction." | July 19, 1985 |
9ce91ecd-b24f-40ac-879e-bcf7a768c65e | Ex Parte Lynn | 477 So. 2d 1385 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 1385 (1985)
Ex parte Frederick LYNN.
(In re: Frederick LYNN v. State of Alabama).
No. 84-617.
Supreme Court of Alabama.
July 3, 1985.
Rehearing Denied August 23, 1985.
Donald J. McKinnon, Eufaula, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little and P. David Bjurberg, Asst. Attys. Gen., for respondent.
JONES, Justice.
Because of our reversal of the judgment of conviction and remand of this cause for a new trial, we address at length only one of the multiple issues presented in this death penalty case. The issue on which our reversal is based is addressed under Part V of the Court of Criminal Appeals' opinion, Lynn v. State, 477 So. 2d 1365 (Ala. Cr.App.1984). We quote the following extract therefrom:
"415 U.S. at 316, 94 S. Ct. at 1110.
We disagree with the Court of Criminal Appeals' conclusion that the State's interest in protecting the anonymity of juvenile offenders is paramount to Defendant's right to effectively cross-examine an admitted accomplice to the crime. We hold, on independent State grounds (Ala. Const.1901, Art. I, § 6; Code 1975, § 12-21-137), that Defendant's right to thorough and sifting cross-examination was unduly hampered by the trial court's granting of the State's motion to preclude defense counsel from making any reference to Strong's juvenile record.
It is not an overstatement to assert that Strong's testimony contributed to this Defendant's being sentenced to the electric chair. In exchange for his sworn statement, shifting the bulk of the blame for the homicide away from himself and onto Defendant Lynn, Strong was offered, and he received, a 30-year sentence for the noncapital offense of burglary. Because of their relationship in the joint commission of this horrible crime and the overwhelming weight of Strong's testimony against Lynn, constitutional considerations mandate that Defendant not be restricted in his cross-examination of Strong as to any matters of probative worth.
It is not our purpose to be critical of the State's trial tactics with one accomplice in order to strengthen its case against the other one. When handled in a professional manner (and nothing here indicates otherwise), such a "trade-off" is entirely permissible; but, by the same token, this very fact, with its inherent potential for witness bias, cannot be thrust beyond the Defendant's legitimate reach of cross-examination. The rules of fair play, as contemplated by the constitutional guarantee of witness confrontation and as implemented by statute, place in the defendant's arsenal the concomitant right to subject that witness and his credibility, which necessarily includes his potential bias and self-interest, to cross-examination, including use of his juvenile record.
Although our reversal is based on the sole ground of the trial court's granting of the State's motion in limine, we will comment briefly on one other of Petitioner's allegations of error. The State, acknowledging the trial court's error when charging the jury on the requisite degree of corrobative proof of an accomplice's testimony, claims lack of prejudice in light of the correctness of the full charge. From our review of the totality of his instructions, we are constrained to view the trial judge's "slightest degree" remark as a mere inadvertence which is not apt to recur upon a new trial of this cause.
We have reviewed each of Petitioner's remaining contentions for reversal and find no other error.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
EMBRY, J., not sitting. | July 3, 1985 |
dc5747fb-e453-42c7-a82e-230c4faa2673 | City of Mobile v. Dirt, Inc. | 475 So. 2d 503 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 503 (1985)
CITY OF MOBILE, a municipal corporation
v.
DIRT, INC.
83-1364.
Supreme Court of Alabama.
July 19, 1985.
William H. Brigham, Mobile, for appellant.
W. Borden Strickland, Mobile, for appellee.
JONES, Justice.
This is a "sufficiency of the evidence" case. By motion for directed verdict, timely filed, with properly stated grounds, Defendant/Appellant City of Mobile challenged the sufficiency of Plaintiff/Appellee Dirt's evidence in support of its claim for breach of contract.
From our careful review of the record, we are convinced that the undisputed evidence discloses that Plaintiff failed to comply with the express terms of the subject contract, and thus no fact issue existed for the jury's determination. Because the trial judge erred in not granting Defendant City's directed verdict motion, we reverse and render.
Immediately after Hurricane Frederic struck the gulf coast on September 12, 1979, the City of Mobile contracted with various truck operators to gather and remove the storm's debris from the city and dump it in two excavated pits. On November 21, 1979, the City entered into a contract with Dirt, which provides:
In 1981, Dirt informed the City that it had completed the contract's requirements and submitted a claim for payment. The City paid Dirt a total of $34,276, thus acknowledging that Dirt had complied with the contract provisions as to 8.5 acres. Dirt, however, maintained that it had completed the contract as to the entire 18.3 acres; thus, it sued the City, seeking payment for an additional 9.8 acres. The City, upon investigation, determined that Dirt had not complied with the contract as to any acreage.
The jury returned a verdict for Dirt in the amount of $25,094.48, half the amount sued for, plus interest. Having been denied directed verdict at the close of the evidence, the City then moved for judgment *504 notwithstanding the verdict. From the denial of that motion, the City appeals.
Defendant City argues that Dirt presented insufficient evidence to present a factual issue for the jury to decide. Thus, maintains the City, the trial court committed reversible error in not directing a verdict for the City and in allowing the case to go to the jury. In evaluating Defendant City's argument, we begin, as always in a directed verdict analysis, by viewing the evidence of record in the light most favorable to the nonmoving party. Ritch v. Waldrop, 428 So. 2d 1 (Ala.1982).
When we turn to the record, however, we find the following deposition testimony by Lamar Harrison, owner and president of Dirt:
Dirt argues that this testimony has to be read along with the following testimony by Mr. Harrison, which, it contends, tends to show the required twelve feet of compacted debris:
This testimony, however, does not modify or negate Mr. Harrison's previous deposition testimony that we have set out. It is clear that the twelve feet referred to in the above testimony is in reference to a time earlier than the date of final compacting of the debris and the application of the compact dirt cover, at which time the depth of the debris was less than half that required by the contract.
In sum, therefore, we can think of no clearer case of a "complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ." Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984). With the foregoing testimony by Dirt's officer to the effect that it did not comply with the provisions of the contract, no factual issue existed to be submitted to the jury. Thus, the trial court committed reversible error in submitting the case to the jury and in denying the City's motion for directed verdict.
REVERSED AND RENDERED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur. | July 19, 1985 |
bab3deea-48dd-4f70-9be3-548a22402e7a | Wilbert of Birmingham, LLC, et al. v. Jefferson County | N/A | 1200004 | Alabama | Alabama Supreme Court | REL: April 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1200004
____________________
Wilbert of Birmingham, LLC,
Lisa D. Turner, and Marvin Lands
v.
Jefferson County
Appeal from Jefferson Circuit Court
(CV-13-904067)
MENDHEIM, Justice.
Jefferson County ("the county") filed a complaint in the Jefferson
Circuit Court against Wilbert of Birmingham, LLC ("Wilbert"), Lisa D.
1200004
Turner, and Marvin Lands ("the taxpayers") seeking an order requiring
the taxpayers to pay various taxes and license fees they allegedly owed to
the county. The circuit court ruled in favor of the county and ordered the
taxpayers to pay to the county $112,728.96 plus accrued interest and court
costs. The taxpayers appealed. We dismiss the appeal.
Facts and Procedural History
The merits of the circuit court's ruling are not actually before us in
this appeal. Instead, the issue raised in the taxpayers' brief is whether
the circuit court obtained jurisdiction over the matter pursuant to the
Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act,
§ 40-2A-1 et seq., Ala. Code 1975 ("the TBOR"). Accordingly, our rendition
of the facts and procedural history will focus on what is relevant to that
narrow issue.
Turner and Lands are the principal owners of Wilbert. Wilbert
manufactures and sells funeral caskets and conducts or has conducted
business
in
Jefferson
County.
The
affidavit
testimony
of
Wiley Stoudenmire, a senior auditor with the county's department of
revenue, indicates that the taxpayers "had not paid Privilege Tax
2
1200004
(Licenses), Sales Tax and Educational Sales Tax for the period
8/1/2009-12/31/2012." Accordingly, on April 1, 2013, the county's
department of revenue issued to the taxpayers "preliminary assessment[s]
of tax[es] due and notice[s] thereof" for the education sales tax in the
amount of $49,047.09, for the sales tax in the amount of $49,047.01, and
for a privilege tax (license fee) in the amount of $1,150.52.
On April 18, 2013, the taxpayers filed with the county's department
of revenue a "petition for review of preliminary assessment," with
supporting documentation, challenging the preliminary assessments. The
taxpayers requested a conference, but, according to Turner's affidavit
testimony, no conference was held. Stoudenmire's affidavit testimony
indicates that he reviewed the taxpayers' petition and "determined that
the preliminary assessment was correct."
On May 16, 2013, the county's department of revenue issued to the
taxpayers "final assessment[s] of tax[es] due and notice[s] thereof" for the
educational sales tax in the amount of $49,779.30 and for the sales tax in
the amount of $49,779.30. The county's department of revenue also
issued, on the same day, a "final assessment of state privilege license due
3
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and notice thereof" in the amount of $1,159.52 and a "final assessment of
county ordinance license[1] due and notice thereof" in the amount of
$871.32. Each of the final assessments issued to the taxpayers states, in
pertinent part: "You have the right to appeal this assessment to the
Jefferson County Circuit Court. The appeal must be made within thirty
(30) days of the final assessment date and pursuant to the provisions of
Act 92-186. See enclosed sheet for additional explanation of your appeal
rights." The referenced enclosed sheet states, in pertinent part: "You
have the right to receive a written description of how to exercise your
right of appeal to the circuit court at or before the issuance of a final
assessment." Stoudenmire's affidavit testimony states that he "complied
with the law in all notices, including an explanation of [the taxpayers']
appeal rights." However, Turner states in her affidavit testimony that she
"do[es] not recall receiving the final assessment[s]." The taxpayers did not
appeal the final assessments within 30 days of the date the county's
1It appears that the "county ordinance license" fee is also referred to
as a "consumer tax."
4
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department of revenue mailed the final assessments, as required by
§ 40-2A-7(b)(5)a., Ala. Code 1975.
On October 7, 2013, the county filed a complaint against the
taxpayers alleging that the taxpayers had not yet paid the delinquent
taxes and license fees explained above and requesting that the circuit
court
"issue an injunction under the provisions of [Ala. Code] 1975[,]
§ 40-2-11(4), restraining and enjoining [the taxpayers] and the
[taxpayers'] agents, servants and employees while acting
within the line and scope of their employment by the
[taxpayers], and the [taxpayers'] successors in business, from
engaging or continuing to engage within Alabama in any
business subject to the provision of the Jefferson County Tax
Ordinances."
The county amended its complaint several times and filed its fourth
amended complaint on August 18, 2014. On September 15, 2014, the
taxpayers filed their answer. Among other things, the taxpayers
specifically argued that they had not been provided a conference on the
preliminary assessments and that the notices provided by the county's
department of revenue allegedly failed to "correctly" notify the taxpayers
of their rights.
5
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On November 27, 2018, the county filed a motion for a summary
judgment; including interest that had continued to accrue on the
assessments, the total amount allegedly owed by the taxpayers at that
time was $112,728.96. On May 11, 2020, following a period of discovery,
the taxpayers filed a response to the county's summary-judgment motion.
The taxpayers argued that the circuit court lacked subject-matter
jurisdiction over the dispute because, they asserted, the county's
department of revenue had failed to follow the procedural requirements
of the TBOR. Specifically, the taxpayers argued that the county's
department of revenue had failed to conduct a conference concerning the
preliminary assessments and had failed to provide notice of the final
assessments in the manner required by the TBOR. On May 24, 2020, the
county filed a reply to the taxpayers' response.2
2The county's reply included additional evidentiary material, which
the taxpayers moved to strike. The circuit court denied the taxpayers'
motion to strike.
6
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On July 8, 2020, the circuit court entered an order granting the
county's summary-judgment motion. The circuit court's order states, in
pertinent part:
"The court finds that Lisa D. Turner and Marvin Lands
are the responsible parties of Wilbert of Birmingham, LLC.
The [taxpayers] are currently engaged in and operating a
business in Jefferson County, Alabama and failed to purchase
a business license, to pay Sales Tax and Educational Sales Tax
due for the period of August, 2009 through May, 2013. The
[taxpayers] did not file a notice of appeal within the statutory
time allowed by law and did not post appropriate bond with
the Clerk of Circuit Court, Jefferson County.
"The Court is [of] the opinion that the following order
should be entered, and accordingly, it is hereby, ORDERED,
ADJUDGED and DECREED, as follows:
"Judgment is entered against [the taxpayers] in the
amount of $112,728.96, plus accrued [interest] and court costs.
The injunction requested by the [county] is hereby denied as
[the taxpayers] have purchased the appropriate business
license and paid Sales Tax and Educational Sales Tax due
since the filing of this action."
(Capitalization in original.)
On August 3, 2020, the taxpayers filed a motion for a new trial or,
in the alternative, to alter, amend, or vacate the circuit court's order. On
August 19, 2020, the county filed a response to the taxpayers'
7
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postjudgment motion. On August 28, 2020, the circuit court denied the
taxpayers' postjudgment motion. The taxpayers appealed.
Standard of Review
The question before this Court is whether the circuit court had
subject-matter jurisdiction over the county's action against the taxpayers,
which presents a question of law. See Ex parte Terry, 957 So. 2d 455 (Ala.
2006). This Court reviews questions of law de novo. BT Sec. Corp. v. W.R.
Huff Asset Mgmt. Co., 891 So. 2d 310, 312 (Ala. 2004).
Discussion
The taxpayers argue that the circuit court lacked subject-matter
jurisdiction over this case based on the alleged failure of the county's
department of revenue to comply with the procedural requirements of the
TBOR.3 Initially, we note that this Court has established that compliance
3There is no dispute that the TBOR applies to the county. This
Court stated the following in Ex parte Tellabs Operations, Inc., 84 So. 3d
53, 56 (Ala. 2011):
"In General Motors Acceptance Corp. v. City of Red Bay,
894 So. 2d 650 (Ala. 2004), this Court concluded that, although
'[t]he requirements of the TBOR were directed initially to the
[Alabama] Department [of Revenue],' 'the Local Tax
8
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with the procedures set forth in the TBOR is a jurisdictional matter. See
Bonedaddy's of Lee Branch, LLC v. City of Birmingham, 192 So. 3d 1151,
1161 (Ala. 2015) ("Consistent with this Court's decision in Russell
Petroleum[, Inc. v. City of Wetumpka, 976 So. 2d 428 (Ala. 2007)], we hold
that the [tax authority's] failure to comply with provisions of the TBOR
before it filed its complaint seeking to collect the sales taxes from [the
taxpayer] deprived the trial court of jurisdiction over the [tax authority's]
claim for sales taxes against [the taxpayer]."); and State v. Amerada Hess
Simplification Act of 1998, Act No. 98-192, Ala. Acts 1988 ("the
LTSA"), made the TBOR equally applicable to tax assessments
and tax-collection procedures by local taxing authorities.' 894
So. 2d at 653. See also Russell Petroleum, Inc. v. City of
Wetumpka, 976 So. 2d 428, 437 (Ala. 2007) (noting that,
'[c]onsidering the TBOR (including a 1998 amendment thereto
now codified at [Ala. Code 1975,] § 40-2A-13) and the LTSA in
their entirety,' the Red Bay Court held that ' "[the LTSA] made
the TBOR equally applicable to tax assessments and
tax-collection procedures by local taxing authorities such as
[municipalities and counties]" ' (quoting Red Bay, 894 So. 2d at
653)); Pittsburg & Midway Coal Mining Co. v. Tuscaloosa
County, 994 So. 2d 250, 258 (Ala. 2008) (observing that '[t]his
Court in Red Bay held that the LTSA made the
administrative-appeal procedures in the TBOR "equally
applicable to tax assessments and tax-collection procedures by
local taxing authorities" ')."
9
1200004
Corp., 788 So. 2d 179, 185 (Ala. Civ. App. 2000) (affirming a trial court's
dismissal of a lawsuit filed by the Alabama Department of Revenue
against a taxpayer "based on [the trial court's] lack of subject-matter
jurisdiction resulting from the [Alabama] Department [of Revenue]'s
failure to follow the procedures mandated by the [TBOR]"). This Court
has further stated that "the requirements of the TBOR are to be strictly
complied with." Ex parte Jefferson Smurfit Corp. (U.S.), 951 So. 2d 659,
665 (Ala. 2006) (citing Patterson v. Gladwin Corp., 835 So. 2d 137, 151
(Ala. 2002)); see also Board of Equalization & Adjustment of Shelby Cnty.
v. Shelby 39, LLC, 140 So. 3d 941, 943 (Ala. 2013) (noting that strict
compliance with the TBOR is required for a circuit court to obtain
jurisdiction over a tax appeal).4 In other words, the circuit court's subject-
4We note that the strict-compliance language used by this Court in
Board of Equalization & Adjustment of Shelby County, supra, Ex parte
Jefferson Smurfit, supra, and Patterson, supra, referred to the burden on
a taxpayer to strictly comply with the applicable provisions of the TBOR
to properly appeal to the circuit court a final assessment by a taxing
authority. Of course, if a taxpayer must strictly comply with the TBOR
to imbue the circuit court with jurisdiction over the appeal of a final
assessment, clearly, then, a taxing authority must also strictly comply
with the TBOR to imbue the circuit court with jurisdiction over an action
to collect on a final assessment. Nothing in the TBOR indicates that a
10
1200004
matter jurisdiction over the county's action seeking to collect the unpaid
taxes allegedly owed by the taxpayers is dependent upon the county's
department of revenue having strictly complied with the procedural
requirements of the TBOR. If the taxpayers demonstrate that the
county's department of revenue failed to strictly comply with the
procedural requirements of the TBOR, then we must conclude that the
circuit court lacked subject-matter jurisdiction over the county's action
against the taxpayers, which would render the circuit court's order void,
and dismiss the appeal, because a void order will not support an appeal.
See Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008) ("A judgment
entered by a court lacking subject-matter jurisdiction is absolutely void
and will not support an appeal; an appellate court must dismiss an
attempted appeal from such a void judgment. Hunt Transition &
Inaugural Fund, Inc. v. Grenier, 782 So. 2d 270, 274 (Ala. 2000).").
The taxpayers argue that the county's department of revenue failed
to comply with the TBOR by not holding a conference on the taxpayers'
taxing authority has a lesser burden than a taxpayer in seeking to have
its day in court.
11
1200004
petition for review of the preliminary assessments issued to the taxpayers.
Section 40-2A-7(b)(4)a., Ala. Code 1975, provides:
"If a taxpayer disagrees with a preliminary assessment as
entered by the department, the taxpayer may file a written
petition for review with the department within 30 days from
the date of mailing or personal service, whichever occurs
earlier, of the preliminary assessment setting out the specific
objections to the preliminary assessment. If a petition for
review is timely filed, or if the department otherwise deems it
necessary, the department shall schedule a conference with
the taxpayer for the purpose of allowing the taxpayer and the
department to present their respective positions, discuss any
omissions or errors, and to attempt to agree upon any changes
or modifications to their respective positions."
(Emphasis added.) It is undisputed in the present case that the taxpayers
timely filed a written petition for review with the county's department of
revenue within 30 days of receiving notice of the preliminary assessments,
that the taxpayers requested a conference with the county's department
of revenue, and that the county's department of revenue did not schedule
a conference with the taxpayers. Stoudenmire's affidavit testimony
indicates that, without scheduling the requested conference with the
taxpayers, he reviewed the taxpayers' submissions and "determined that
the preliminary assessment was correct."
12
1200004
The county argues that, based on Stoudenmire's review of the
taxpayers' petition for review, the county's department of revenue was not
required to schedule a conference before issuing the final assessments. In
support of its argument, the county cites § 40-2A-7(b)(4)b.2., Ala. Code
1975, which states:
"If a written petition for review ... [i]s properly filed, and upon
further review the department determines the preliminary
assessment is due to be upheld in whole or in part, the
department may make the assessment final in the amount of
tax due as computed by the department, with applicable
interest and penalty computed to the date of entry of the final
assessment."
The county offers no analysis of this provision of the TBOR and offers no
explanation as to why it believes that a review of the taxpayers' petition
for review under § 40-2A-7(b)(4)b.2. negates the requirement in § 40-2A-
7(b)(4)a. that the county's department of revenue schedule a conference
with the taxpayers before issuing the final assessments.
Section 40-2A-7(b)(4)a. provides, in pertinent part, that, "[i]f a
petition for review is timely filed, ... the department shall schedule a
conference with the taxpayer." (Emphasis added.) The legislature's use
of the word "shall" indicates that there is no discretion in scheduling a
13
1200004
conference with a taxpayer when the taxpayer has timely filed a written
petition for review of a preliminary assessment. See Ex parte Prudential
Ins. Co. of America, 721 So. 2d 1135, 1138 (Ala. 1998) ("The word 'shall'
is clear and unambiguous and is imperative and mandatory."). The plain
language of § 40-2A-7(b)(4)a. indicates that the taxpayers were entitled to
a conference in this case; the county's department of revenue did not have
the discretion to deny such a conference. Nothing in § 40-2A-7(b)(4)b.2.
indicates otherwise. That section simply states that "the department,"
which in this case is the county's department of revenue, must review the
taxpayers' petition for review and determine whether the preliminary
assessments are correct. There is no language indicating, as the county
suggests, that the requirement of holding a conference is obviated if the
county's department of revenue completes its review of a preliminary
assessment before such a conference is scheduled. Such a reading of § 40-
2A-7(b)(4)b.2. would render the requirement of holding a conference in
§ 40-2A-7(b)(4)a., as evidenced by the legislature's use of the word "shall,"
meaningless. This Court has stated that "[i]t will not be presumed that
the Legislature has employed 'meaningless words.' " Reed v. Board of Trs.
14
1200004
for Alabama State Univ., 778 So. 2d 791, 794 (Ala. 2000) (quoting Elder
v. State, 162 Ala. 41, 45, 50 So. 370, 371 (1909)). We do not find the
county's argument convincing; § 40-2A-7(b)(4)a. clearly required the
county's department of revenue to schedule a conference with the
taxpayers, and the county's department of revenue failed to do so.
Conclusion
The taxpayers have demonstrated that, by failing to schedule a
conference with the taxpayers concerning the preliminary assessments,
the county's department of revenue did not strictly comply with the
procedural requirements of the TBOR. That failure to strictly comply
with the procedural requirements of the TBOR deprived the circuit court
of jurisdiction over the county's action against the taxpayers, and, thus,
the order entered in favor of the county is void. A void judgment will not
support an appeal. See Vann v. Cook, supra. Therefore, we dismiss the
taxpayers' appeal and instruct the circuit court to vacate its judgment in
15
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favor of the county and to dismiss the case. See State Dep't of Revenue v.
Garner, 812 So. 2d 380, 385 (Ala. Civ. App. 2001).5
APPEAL DISMISSED WITH INSTRUCTIONS.
Parker, C.J., and Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell,
JJ., concur.
5We note that the taxpayers also argue that the county's department
of revenue failed to comply with the procedural requirements of the TBOR
by failing "to produce competent evidence of a certified mailing of the final
assessement against the taxpayers as required by TBOR § 40-2A-
7[(b)](4)d., Ala. Code 1975." The taxpayers' brief at p. 22. However, based
on our conclusion that the circuit court lacks subject-matter jurisdiction
over the county's action based on the failure of the county's department
of revenue to conduct a conference concerning the preliminary
assessments issued to the taxpayers, we pretermit discussion of this issue.
16 | April 30, 2021 |
4316af3f-dcb3-43cf-89dc-aec393ef2254 | Ex Parte Robinson | 474 So. 2d 685 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 685 (1985)
Ex parte Aubrey Lee ROBINSON.
(Re: Aubrey Lee ROBINSON v. STATE of Alabama).
84-393.
Supreme Court of Alabama.
July 12, 1985.
Arthur Parker, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Spec. Asst. Attys. Gen., for respondent.
FAULKNER, Justice.
We granted certiorari in this case to consider whether Alabama Code 1975, § 20-2-80, is unconstitutional because it fails to fix the maximum penalty which may be imposed.
Aubrey Lee Robinson was convicted under Alabama Code 1975, § 20-2-80, for trafficking in illegal drugs and was sentenced to fifteen years in the state prison. Robinson filed a petition for writ of habeas corpus, seeking to test the validity of his conviction and sentence. The trial court denied the writ, and the Court of Criminal Appeals affirmed without opinion, 461 So. 2d 61.
Robinson contends that the statute is void because it fails to provide a maximum *686 limit of punishment upon conviction. He argues that the Alabama Constitution 1901, Article I, § 7,[1] along with the state and federal due process requirements, mandates that the legislature establish a maximum limit of punishment prior to the date of the commission of the offense.
Our research reveals many statutes, both federal and state, which fix a minimum penalty for an offense but which fail to prescribe a maximum penalty. In most instances the validity of such statutes has been upheld and the courts have found that due process is not violated by the failure of the sentencing statute to specify the maximum term of imprisonment. See e.g., Binkley v. Hunter, 170 F.2d 848 (10th Cir. 1948); Earin v. Beto, 453 F.2d 376 (5th Cir.1972); United States v. Kuck, 573 F.2d 25 (10th Cir.1978); United States v. Hayes, 589 F.2d 811 (5th Cir.1979); Mottaz v. United States, 753 F.2d 71 (8th Cir.1985); Commonwealth v. Logan, 367 Mass. 655, 657, 327 N.E.2d 705 (1975).
The reasoning of these cases has been followed by the Alabama Court of Criminal Appeals in Dickerson v. State, 414 So. 2d 998 (Ala.Cr.App.1982). In Dickerson, the court, addressing the exact issue at bar, held that § 20-2-80 is not unconstitutionally vague or indefinite for failure to set a maximum limitation on the sentence that may be imposed. See also Eldridge v. State, 418 So. 2d 203 (Ala.Cr.App.1982).
In the instant case, Robinson was sentenced to fifteen years' imprisonment. There is no indication that the penalty imposed is not proportionate.
While § 20-2-80 provides for only a minimum term of imprisonment, the statute may reasonably be construed to validly authorize a maximum sentence of life imprisonment. See Binkley v. Hunter, supra; Commonwealth v. Logan, supra. See also United States v. Jones, 540 F.2d 465 (10th Cir.1976) (statute construed to authorize a maximum special parole term of life for controlled substance offense where no statutory maximum set). A life sentence has been held not to constitute cruel or unusual punishment for drug trafficking offenses. See Dickerson v. State and cases cited therein.
Additionally, the judicial determination of a maximum sentence does not offend the principle of separation of powers. No unlawful delegation of legislative power is involved. United States v. Jones, supra. "Where the legislature leaves to the judiciary discretion to fix a penalty, the judiciary acts in accord with its constitutional and statutory authority in imposing sentence within that discretion." United States v. Lockley, 590 F. Supp. 1215 (N.D. Ga.1984).
Based upon the foregoing discussion, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
[1] Article I, § 7, Constitution of Alabama 1901, reads in pertinent part:
"[N]o person shall be punished but by virtue of law established and promulgated prior to the offense and legally applied." | July 12, 1985 |
b8ceaa9b-397b-4a2c-b918-cf2e50b9d4c7 | Evans v. ALA. PROF. HEALTH CONSULTANTS | 474 So. 2d 86 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 86 (1985)
Leland EVANS
v.
ALABAMA PROFESSIONAL HEALTH CONSULTANTS, INC., a Corporation, and Henry M. Huguley.
84-19.
Supreme Court of Alabama.
June 28, 1985.
*87 Frank W. Riggs of Riggs, NeSmith & Halstrom, Montgomery, for appellant.
Thomas T. Gallion, III of Hooper, Gallion & Wilkerson, Montgomery, for appellees.
EMBRY, Justice.
This case involves a malicious prosecution action by Leland Evans against Alabama Professional Health Consultants, Inc. (APHC) and Henry Huguley. A motion to dismiss requested by the defendants was granted by the trial court. Evans's motion for reconsideration was denied. We affirm.
The facts are as follows:
On 28 October 1980, APHC filed suit against Evans, alleging "sabotage of contract and property rights under insurance policies sold by [APHC]." This suit culminated on 3 August 1983 with a stipulation of dismissal, with prejudice, entered into and signed by all parties. Each party agreed to bear his own costs.
On 22 March 1984, Evans filed suit in the Circuit Court of Montgomery County, alleging malicious prosecution by APHC and Huguley. On 27 April 1984, the trial judge granted a motion to dismiss in favor of the defendants. Evans then amended and refiled his complaint. The trial judge, treating this amended complaint as a motion for reconsideration, again dismissed the claim. Evans appeals.
In order for a plaintiff to maintain an action for malicious prosecution, the following elements are essential: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for *88 the proceeding; and (6) the suffering of injury or damage as a result of the action or prosecution complained of. Turner v. J. Blach & Sons, 242 Ala. 127, 129, 5 So. 2d 93, 94 (1941).
A suit for malicious prosecution is an action not favored in the law. Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So. 2d 555 (1959). Accordingly, malicious prosecution actions face stringent limitations. American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927); see also Jordan v. Empiregas, Inc. of Belle Mina, 337 So. 2d 732 (Ala.1976). In Boothby Realty Co., Justice Merrill explained this position:
Boothby Realty Co. v. Haygood, 269 Ala. 549, 554, 114 So. 2d 555, 559 (1959).
The issue presented is whether a stipulation of dismissal entered into in a prior proceeding, and signed by all parties, is a termination of judicial proceedings in favor of the plaintiff for purposes of maintaining a subsequent malicious prosecution suit. We conclude that it is not.
A stipulation is defined as a "voluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate need for proof or to narrow range of litigable issues." Black's Law Dictionary 1269 (rev. 5th ed. 1979), quoting Arrington v. State, 233 So. 2d 634, 636 (Fla.1970). (Emphasis added.) Stipulation of dismissal of an action may be made pursuant to Rule 41(a)(1)(ii), ARCP, if the stipulation is signed by all parties who have appeared in the action.
It cannot be that such a stipulation is a "final determination in favor of the plaintiff" for purposes of a malicious prosecution suit. Such a stipulation of dismissal is more in the nature of a settlement agreement, compromising the interests of both parties, but "in favor" of neither party.
Courts look with favor on settlements, Maddox v. Druid City Hospital Board, 357 So. 2d 974, 975 (Ala.1978), and find no favor with malicious prosecution actions, Boothby Realty Co., supra.
In fact, this court has held that where dismissal of a claim is part of a settlement agreement, such termination of the proceedings is not favorable to the plaintiff in all respects, and no malicious prosecution action will lie. Wilson v. Brooks, 369 So. 2d 1221 (Ala.1979).
Likewise, we hold today, that under the facts presented, a Rule 41(a)(1)(ii) voluntary dismissal is not a "termination in favor of the plaintiff" for purposes of maintaining a malicious prosecution action. Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | June 28, 1985 |
762215fe-323a-413c-bc3a-fc1dad8bfb22 | Raley v. Citibanc of Alabama/Andalusia | 474 So. 2d 640 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 640 (1985)
Nathan RALEY and Nell Raley
v.
CITIBANC OF ALABAMA/ANDALUSIA.
83-1203.
Supreme Court of Alabama.
June 28, 1985.
*641 Curtis C. Reding, Montgomery, for appellants.
Abner Powell III, Andalusia, for appellee.
EMBRY, Justice.
Nathan and Nell Raley appeal from a Covington County trial court order dismissing their original and amended complaints, insofar as the pleadings seek punitive damages, against Citibanc of Alabama/Andalusia, in an action for conversion. We reverse.
On 24 January 1984, the Raleys filed an original complaint, sounding in conversion, in the Covington County Circuit Court. The pertinent provision of that complaint is:
On motion of the defendant, Citibanc, the trial court dismissed the complaint "insofar as the claim for punitive damages for failure of the complaint to state a claim upon which relief may be granted."
The Raleys amended their complaint on 15 March 1984 to read as follows:
The trial court also dismissed this complaint for failure to state a claim upon which relief may be granted.
The single issue presented for our review is whether the trial court erred in dismissing the complaints set out above. The appropriate standard of review is whether, when the allegations of the complaint are viewed most strongly in his favor, the pleader could prove any set of circumstances which would entitle him to relief. Mull v. String, 448 So. 2d 952 (Ala. 1984); ARCP 12(b)(6).
To constitute a conversion, there must be a wrongful taking, or a wrongful detention, or an illegal assumption of ownership, or an illegal user or misuser. Webb v. Dickson, 276 Ala. 553, 165 So. 2d 103 (1964). See also Raley v. Royal Insurance Company Limited, 386 So. 2d 742 (Ala. 1980) (Torbert, C.J., concurring specially). The allegations of the complaint and the amended complaint, when read together, aver a wrongful detention by the bank of property belonging to another. The complaints additionally aver that Raley demanded the return of the security instrument, but the bank refused. Clearly, if the allegations were proved, the Raleys would be entitled to relief. Raley v. Royal Insurance Company Limited, 386 So. 2d 742 (Ala.1980). In fact, the Raleys' pleadings follow the proper form approved by this court, and set out in ARCP Appendix I (Form 22).
*642 The Raleys have failed to plead the requisite facts to entitle them to punitive damages. Punitive damages are recoverable in conversion where it is shown that a party has converted the property of another, in known violation of the owner's rights, and in violation of the law. Gunite Contracting Co. v. Mize, 341 So. 2d 694 (Ala.1977); Roy Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So. 2d 652 (1975). Nevertheless, once the pleader has set out a cause of action, his failure to plead the requisite elements of punitive relief is not subject to a Rule 12(b)6 motion for failure to state a cause of action, but rather, should be challenged by a motion to strike, or objection to the evidence, or requested charges. Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So. 2d 261 (1973).
Accordingly, the judgment of the trial court is due to be, and it is hereby, reversed and this cause remanded for further proceedings consistent with this opinion.
REVERSED.
TORBERT, C.J., and FAULKNER and ALMON, JJ., concur.
ADAMS, J., concurs in the result. | June 28, 1985 |
986b7547-cfb8-4745-8db1-81f101f88bd5 | Williams v. Bhoopathi | 474 So. 2d 690 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 690 (1985)
Larry J. WILLIAMS, as father of Joshua James Williams, deceased minor, et al.
v.
Dr. Bharathi BHOOPATHI.
84-155.
Supreme Court of Alabama.
July 26, 1985.
Larry R. Grissett, Opp, for appellants.
A. Neil Hudgens and Michael S. McGlothren of Brown, Hudgens, Richardson, Mobile, for appellee.
FAULKNER, Justice.
Gloria and Larry Williams appeal from the trial court's granting of the defendant-appellee's *691 motion for directed verdict in a medical malpractice case. We affirm.
This action arose as the result of a stillbirth of one of a set of triplets at the Grove Hill Memorial Hospital on February 15, 1981. The mother, Gloria Williams, had been a patient of Dr. Jack Dozier. Dr. Dozier referred his maternity patients to the appellee, Dr. Bharathi Bhoopathi, for treatment. Dr. Bhoopathi examined Mrs. Williams on three occasions prior to the deliveries. The doctor sent Mrs. Williams to Dr. D.W. Wager in Monroeville for an ultrasound test, which indicated she was carrying twins.
On the night of the births, Larry Williams drove his wife and her mother to Thomasville Hospital. They stayed there approximately fifteen minutes before they were informed that Dr. Bhoopathi worked at Grove Hill Memorial Hospital. After a twenty-minute drive, they arrived at Grove Hill.
Mrs. Williams, assisted by a nurse, immediately gave birth to the first child, a healthy boy. Dr. Bhoopathi arrived shortly thereafter. The doctor testified that when she examined Mrs. Williams, she saw the second child's hands were protruding from the womb (a double hand prolapse) and felt its shoulder. There is conflicting evidence as to whether Dr. Bhoopathi attempted to turn the baby. Mrs. Williams was put on a fetal heart monitor, which indicated a single fetal heartbeat. It is not clear whether this was before or after the disputed attempt to turn the baby. Dr. Bhoopathi performed a Caesarean section, assisted by Dr. Preston McDonald. The second male child was stillborn, but the third boy was healthy. The autopsy of the stillborn child showed he died of asphyxia during the first or second stages of labor.
The Williamses initially sued the Grove Hill Memorial Hospital and Drs. Dozier, Wager, McDonald, and Bhoopathi. The trial court granted summary judgment for the hospital and Dr. Wager and dismissed the actions against Drs. Dozier and McDonald on the Williamses' motion. Only the suit against Dr. Bhoopathi went to trial. The trial court granted Dr. Bhoopathi's motion for directed verdict at the close of the Williamses' evidence. The Williamses appeal.
The Williamses contend that delays caused by Dr. Bhoopathi's negligence resulted in the baby's death from lack of oxygen during delivery. They allege two-fold negligence on the part of Dr. Bhoopathi: (1) she failed to tell the Williamses in which hospital she worked, causing them to go to the wrong hospital; and (2) she attempted to turn the baby instead of immediately performing a Caesarean section.
The rule in medical malpractice cases is that to find liability, there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury. Baker v. Chastain, 389 So. 2d 932 (Ala.1980). If there is a scintilla of evidence in a malpractice case that the negligence complained of probably caused the injury, a jury question is presented. Orange v. Shannon, 284 Ala. 202, 224 So. 2d 236 (1969).
Upon careful review of the record, we can find no evidence presented by the Williamses that Dr. Bhoopathi's acts or omissions probably caused the baby's death. Dr. McDonald, called as the Williamses' witness, testified that although it is standard medical practice to inform the patient which hospital to use, he saw no evidence that the delay in getting to the hospital contributed to the death in any way.
Dr. McDonald further testified that he did not see Dr. Bhoopathi attempt to turn the baby. He said that although the standard medical practice in a case with a hand prolapse is not to turn the baby, in such a case it might be helpful to attempt to turn the child. Dr. McDonald also testified he saw no evidence that an attempt to turn the child would have contributed to its death.
Nor did Dr. Bhoopathi, called as an adverse witness by the Williamses, testify *692 that any of her acts or possible omissions probably caused the child's death. The autopsy report showed that the child's lungs and heart were not fully developed, probably due to the fetal compression syndrome. Dr. Bhoopathi stated that the fetal compression syndrome is where the outer fetuses compress the middle fetus and its cord so that there is no circulation to the middle fetus. In her opinion, this compression caused the deficiency in the oxygen reaching the baby. Furthermore, although Dr. Bhoopathi denied attempting to turn the baby, she testified that, in her opinion, a half-hour or forty-five minute delay where there is a shoulder presentation but no cord prolapse would not kill the baby.
The Williamses contend that proximate cause in a medical malpractice action need not necessarily be established through an expert. This argument is moot in the instant case, since none of the lay witnesses expressed an opinion as to what caused the death. Since the Williamses introduced no evidence to support their contention that the delays caused the child's death, we hold that the trial court was correct in directing the verdict in favor of Dr. Bhoopathi.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON and ADAMS, JJ., concur. | July 26, 1985 |
1c25b112-6b3e-44d7-ae93-ac8aa1a0ffbb | Wadsworth House Movers v. SALVAGE ONE DEMO. | 474 So. 2d 686 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 686 (1985)
WADSWORTH HOUSE MOVERS, INC., a corporation
v.
SALVAGE ONE DEMOLITION, INC.
84-264.
Supreme Court of Alabama.
July 19, 1985.
*687 James W. May, Gulf Shores, for appellant.
George M. Ritchey of Ritchey & Ritchey, Birmingham, for appellee.
BEATTY, Justice.
Appeal by Wadsworth House Movers, Inc., defendant, from a judgment in favor of Salvage One Demolition, Inc. (Salvage One), in Salvage One's action based upon breach of contract, money had and received, and fraudulent misrepresentation. The case was tried ore tenus without a jury, and the plaintiff was awarded $11,900 in damages. We affirm.
The action grew out of negotiations between the parties whereby Salvage One sought to purchase Wadsworth House Movers, Inc., a house moving business owned by Wayne Wadsworth. In the course of these negotiations, an agreement was prepared by Salvage One's lawyer. At a meeting in the lawyer's office, details of the transaction were discussed; however, the agreement was not executed by either party. There were other meetings held, without a final closing occurring. Then, on June 15, 1981, Wadsworth went to the office of James Allred, owner of Salvage One and one of the participants in the negotiations, to further discuss the proposed purchase. While there, Wadsworth received a $10,000 cashier's check, for which he gave a receipt, which recited that the $10,000 was "toward purchase of Wadsworth House Movers, Inc., leaving balance of $44,521 due 6/20/81." The closing to occur on June 20 did not occur; at trial the parties disagreed as to where it was to have taken place. No further negotiations were held, and no documents of sale were executed. Wadsworth did not return the $10,000 payment to Salvage One.
Following the trial court's judgment, the defendant's post-trial motions were denied and this appeal ensued.
The defendant states the issue as being whether the vendee may recover a partial payment made under an agreement of purchase and sale when the vendor is able and willing to perform his agreement. The plaintiff, on the other hand, views the case as one in which the trial court, sitting without a jury, could have found that no contract of sale was ever entered into by the parties and that Salvage One was thus *688 entitled to a return of its down payment. We agree with that position and find that the evidence lends support to the trial court's judgment.
The transaction concerned certain equipment, some detached houses, and reimbursement to Wadsworth of sums he had invested in houses he had bid upon, and payment of promissory notes Wadsworth owed to banks. As we have stated, no written contract was ever executed by either party. Wayne Wadsworth did execute a receipt, but only in his individual capacity, and not as a representative of Wadsworth House Movers. The evidence further disclosed that this money was turned over to Wadsworth House Movers. The trial court apparently concluded that this agreement did not qualify as a written memorandum of a contract under Code of 1975, § 7-2-201 (the Uniform Commercial Code's statute of frauds). Such a conclusion is entirely correct: the receipt fails to evidence a contract for the sale of goods, does not specify quantity, and was not signed by the party to be charged. At most, the receipt was evidence of an intent to make a contract in the future.
What the trial court could have concluded from the record is that over a period of approximately two months the parties attempted to reach an agreement on the sale of this business but could not agree on the terms.
Wadsworth House Movers argues that the parties had agreed that the $10,000 paid by Salvage One was to be forfeited in the event no closing took place. The receipt itself does not bear out any such agreement, and there is, as we have stated, evidence supporting the conclusion that no contract was made. Questions concerning the intent of parties to enter a contract are for the factfinder. Lapeyrouse Grain Corporation v. Tallant, 439 So. 2d 105 (Ala.1983); Blowers v. First National Bank of Huntsville, 45 Ala.App. 485, 232 So. 2d 666 (1970).
When the evidence is presented ore tenus without a jury, the factual findings are presumed correct and the judgment based thereon will not be disturbed on appeal unless it is plainly and palpably erroneous. Sandlin v. Sanders, 360 So. 2d 977 (Ala.1978); followed in Cedarwood Associates, L.T.D. v. Trammell, 410 So. 2d 50 (Ala.1982).
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | July 19, 1985 |
be1e8645-17cf-4f63-806a-0d03034d2a27 | Interstate Engineering, Inc. v. Burnette | 474 So. 2d 624 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 624 (1985)
INTERSTATE ENGINEERING, INC.
v.
Janelle K. BURNETTE.
82-1131.
Supreme Court of Alabama.
June 28, 1985.
*625 Richard B. Garrett of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Sterling G. Culpepper, Jr., David R. Boyd, and William P. Cobb II of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for appellee.
EMBRY, Justice.
This appeal by Interstate Engineering, Inc., a corporation, is from a judgment entered on a jury verdict of $200,000 in favor of Janelle K. Burnette, administratrix of the estate of James Kenneth Burnette, deceased, as damages for the wrongful death of her son and intestate, Kenneth Burnette.
Kenneth died from inhalation of carbon monoxide fumes generated by a fire that destroyed the home of his mother and his father, William J. Burnette, on 13 February 1981. Suit was filed under the theory of Alabama's Extended Manufacturer's Liability Doctrine.
Interstate claims error in the denial of its motion for directed verdict, motion for new trial or, in the alternative, motion for JNOV, motion for remittitur, and the giving of a jury instruction regarding the sudden emergency doctrine.
The thrust of plaintiff's case is that certain heat sensors manufactured by Interstate were defective and failed to respond, and signal, at 136 degrees Fahrenheit as they were designed to do.
In order to resolve the issues, it is necessary to state the tendencies of the evidence: Kenneth Barnette died from smoke inhalation when he failed to escape the burning home. About four years before the fire, the Burnettes bought three heat detectors and one smoke detector manufactured by Interstate. The heat detector located in Kenneth's bedroom is that which gave rise to this action. These devices were not altered or unpackaged before the sale of them to the Burnettes. They were installed by a salesman of the seller who had been trained by Interstate's representative to sell and install these products.
An instructional manual entitled "Safe at Home" accompanied the detectors when delivered to the Burnettes. The detectors required no maintenance. Regular testing of the devices was encouraged by Interstate and done by the Burnettes as recently as one month before the fire.
The heat detector in question, a Vanguard Thermosonic Model V-50 FT, was a mechanically operated unit, powered by a coiled spring motor, and designed to make a loud, school-bell or burglar-alarm sound. A Model V-50 FT was activated in a demonstration conducted before the jury; the jury heard the loud alarm which the detector in Ken's bedroom was designed to sound. In the presence of a temperature of 136 degrees Fahrenheit, a round heat-sensitive sensor on the front of the device *626 should melt, releasing the coiled spring and activating the alarm.
At approximately 12:45 on the morning of the fatal fire, Janelle Burnette's husband awakened and told her the house was on fire. Neither the smoke detector, located in the hallway, nor the three heat detectors (located in the kitchen, guest bedroom, and Kenneth's bedroom respectively) had activated to sound an alarm up to the time Mr. and Mrs. Burnette awakened.
Mrs. Burnette got out of bed and entered the adjoining hallway. She looked down the hall in the direction of the dining room and Kenneth's bedroom, in the presence of thick dark smoke, and saw flames in the ceiling of the dining room and in the hallway, directly adjacent to Kenneth's bedroom door. The top of the separating wall between his bedroom and the dining room was also in flames and flames were coming down through the ceiling. The heat detector in Kenneth's bedroom was located within a few inches of the ceiling, approximately two feet from his bedroom door, and immediately adjacent to the visible flames in the dining room, hallway, and separating wall area. Despite its proximity to the flames, the heat detector in Kenneth's room did not sound an alarm. Neither did the heat detector in the kitchen.
The location of the smoke and flames provoked his father to call Kenneth, who answered. Mrs. Burnette turned, spoke briefly to her husband, and began leaving the house. While she made her way out, her husband again called out to Kenneth to say "Let's go, this house is going fast, let's get out of here." To this second call of warning from his father, Kenneth gave no reply.
While Mrs. Burnette was making her way out of the house, the heat detector in the guest bedroom went off. This was the first alarm sounded. The heat detector in Kenneth's bedroom still had not activated. However, the flames were adjacent to the detector in Kenneth's room and closer to it than to the detector in the guest bedroom.
After exiting the house, Mrs. Burnette went for help. Sometime after 1:15 a.m., after the Burnettes had once attempted to re-enter the burning house but were unable to do so because of the extent of the fire, the first volunteer fireman, Edward Terrell, arrived. At that time, more than thirty minutes after the Burnettes had awakened, the house was ablaze. As fire and smoke came underneath the eaves and through the gables all across the house, other people began to arrive. Unable to work the fire truck, they moved a car parked in front of the guest bedroom, for fear of it exploding, then stood back and watched the house burn.
By this time, the house was described as "bubbling," "boiling," and "caving in." The crowd stood 75 to 100 feet back from the house because of the heat, as a witness said, "far away from it so that the heat wouldn't blister you." Then, as the house burned out of control, twenty to thirty minutes after Edward Terrell arrived, and as much as one hour after the heat detector in the guest bedroom went off, a second heat detector went off. This alarm was not sounding when Terrell arrived, he had not heard any prior alarm go off, and there is no evidence that any other alarms, other than the one in the guest bedroom, that went off approximately one hour earlier, were ever activated. All the detectors were completely destroyed in the fire.
Mrs. Burnette testified the heat detectors were tested properly and regularly but not under heat or fire conditions. The testing is to ensure the detector is wound and the spring loaded. The test does not indicate whether the detector will adequately respond to heat or fire. Based on the recommended testing of the product, one cannot know whether the detector will actually perform its intended function and alarm a person in the presence of high temperatures.
Interstate challenges both the sufficiency and the weight of the evidence, by motion for a directed verdict, motion for a new trial or, in the alternative, a motion for JNOV. Accordingly, the appropriate standards of review, presented respectively, are *627 whether the evidence, when viewed in a light most favorable to the non-moving party, furnishes any support for the theory of the complaint and whether the judgment entered, based on the weight and sufficiency of the evidence presented, is palpably wrong or manifestly unjust. Casey v. Jones, 410 So. 2d 5 (Ala.1981); Chavers v. National Security Fire and Casualty Co., 405 So. 2d 1 (Ala.1981).
Relying principally upon Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.1981), Interstate argues a directed verdict should have been entered in that plaintiff failed to prove any defect in the heat detectors. In support of this argument, Interstate emphasizes the absence of any expert testimony concerning the allegedly defective heat detector.
This court, in Sears, found reversible error in the trial court's denial of defendant's directed verdict motion in light of the plaintiff's failure to prove that a tire blowout was causally related in fact to the tire's defective condition at the time of its sale by Sears. The basis of this finding was the proposition that the mere failure of a product does not presuppose the existence of a defect.
Quoting with approval from Shramek v. General Motors Corp., Chevrolet M. Div., 69 Ill.App.2d 72, 77-78, 216 N.E.2d 244, 247 (1966), this court noted:
Sears, Roebuck & Co., 395 So. 2d at 996.
The extent of the evidence regarding a defect in Sears was that a 4½-month-old tire, driven approximately 30,000 miles, blew out while mounted on a heavily laden truck, on a paved highway, under normal weather conditions. This evidence, without more, was insufficient to prove a prima facie case under the Alabama Extended Manufacturer's Liability Doctrine.
In contrast to the Sears decision, where the cause of a product's failure could be determined only by speculation and conjecture, the tendencies of the evidence in the case at bar, without question, point to one theory of causation, namely, that the heat sensor within the Vanguard heat detector was defective and was defective when Interstate released the product into the stream of commerce.
For example, the evidence shows the Burnettes purchased three new Vanguard heat detectors from a distributor in Tuscaloosa, Alabama. The heat detectors were still individually wrapped and boxed. The heat detectors were installed, unaltered, in the Burnette home in a manner suggested by the owner's manual.
As the manual suggested, the heat detectors were tested each month, including within a month of the fire, by ensuring a coiled spring was operative, and left in a "cocked" position. On every testing occasion, the spring device was found to work properly. This testing procedure, however, did not, nor was it intended to, test the heat sensor, which, in the event of a fire, was designed to melt and thereby release the coiled spring, sounding the alarm.
As suggested by the owner's manual, the Burnettes left the heat detectors undisturbed. In fact, the manual clearly states that, other than the testing procedures outlined above, no maintenance was required.
Accordingly, the evidence supports a finding that the heat detectors were properly installed, tested, maintained, and otherwise left undisturbed.
Nevertheless, the evidence supports a finding that on the evening of the fatal fire, two heat detectors, one in Kenneth's room, failed to operate as they were intended. As noted above, the heat detector in Kenneth's room was immediately adjacent to the flames but failed to activate before the detector in the guest bedroom.
Moreover, approximately one hour after the heat detector in the guest bedroom was *628 activated, at a time when the house was described as "boiling" and "caving in," a second alarm sounded. By this time, the heat was so intense that onlookers stood some 75 to 100 feet from the house to avoid being blistered.
While the defense did proffer alternative explanations for the heat devices' failure, we find the jury could have reasonably concluded that the heat sensors within the Vanguard heat detectors failed to melt at 136 degrees Fahrenheit as designed, but, rather, melted at a much higher temperature. Accordingly, having proven that the detectors were in effect "inferno activated," we find Mrs. Burnette met her burden of proof by establishing that the Vanguard heat detectors were not fit for their intended purpose and were unreasonably dangerous. Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d at 994. Furthermore, we find the evidence supports a finding that the heat detectors' failure of performance is causally related in fact to the product's defective condition at the time of sale. Id., 395 So. 2d at 995.
While the use of expert testimony would certainly have been preferable, in light of the attendant circumstances of the case, it was not required. Id., 395 So. 2d at 995.
Interstate further contends Mrs. Burnette failed to present any evidence that the heat detector's failure was the proximate cause of Kenneth's death. We cannot agree.
Evidence presented at trial shows that Kenneth was awakened prior to any alarm having been sounded, but not before thick black smoke had engulfed the hallway adjacent to Kenneth's room, as well as the dining room. Kenneth responded to his father's initial cries of alarm, not from his bedroom, but, rather, from the living room. However, Kenneth failed to respond on a second occasion. Lastly, Kenneth's body was found less than five feet from the front door in the living room.
The tendencies of the evidence support an inference that smoke and flames adjacent to Kenneth's room blocked his exit through the hallway which led to his parent's room. Thus, Kenneth sought to escape through the guest bath and bedroom. However, before escaping, and within feet of an exit, Kenneth was overcome by carbon monoxide fumes. Under the facts, a jury could reasonably conclude that had the heat detector worked as it was intended, and provided an early warning of danger, Kenneth could have escaped from the house. In other words, the jury was entitled to find that the natural and probable sequence of events which led to Kenneth's death was proximately caused by the defective condition of the Vanguard heat detector. C.f. City of Mobile v. Havard, 289 Ala. 532, 268 So. 2d 805 (1972), and Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974).
Lastly, the trial court properly gave the jury the following "sudden emergency doctrine" instructions:
This charge is a correct statement of the law in Alabama. See Ex parte Rollins, 403 So. 2d 918, 921 (Ala.1981); Williams v. Worthington, 386 So. 2d 408, 409 (Ala. 1980).
Interstate argues it was error to give the sudden emergency charge in that the peril of the fire was not "of the defendant's making." See Green v. City of Birmingham, 241 Ala. 684, 4 So. 2d 394 (1941). First of all, as discussed above, evidence does exist warranting the conclusion that Kenneth forced to take an alternative escape route due to the failure of the heat detector sold by the defendant.
Second, we find the better view to be that embraced by A.P.J.I. 28.15, that so *629 long as the injured party did not voluntarily place himself in a position of danger or peril, the sudden emergency charge is proper regardless of the defendant's contribution to the peril. Cf. Ex parte Rollins, supra,
Interstate argues further that Kenneth voluntarily encountered the peril by attempting to re-enter the burning house. While evidence was presented to raise such a theory, the jury apparently rejected it in favor of a finding that Kenneth was overwhelmed by smoke and carbon monoxide before he could escape.
For the reasons assigned, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | June 28, 1985 |
561afdfa-1845-4e67-8618-8899e5e4ee8a | City of Mobile v. Jackson | 474 So. 2d 644 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 644 (1985)
CITY OF MOBILE, A municipal corporation
v.
Cleve JACKSON and Laura Jackson.
83-1320.
Supreme Court of Alabama.
June 28, 1985.
*645 Jerry A. McDowell and Davis Carr of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.
John W. Parker of McFadden, Riley & Parker, Mobile, for appellees.
MADDOX, Justice.
This is an appeal from a jury verdict in favor of plaintiffs, the Jacksons, in a suit they brought against the City of Mobile to recover for damages to their real and personal property when a drainage system overflowed and flooded their property. We affirm.
The Jacksons' home is located in a subdivision off the Dauphin Island Parkway in Mobile. Their property fronts a service road which was constructed by the city. This service road has a drainage ditch running between it and Dauphin Island Parkway. The service road, the drainage ditch, and Dauphin Island Parkway parallel their property. Their property is located below the grade of the Parkway, service road, and ditch. At the time the Jacksons purchased their property, the adjacent property was undeveloped and was on the same grade as their own. Waters from the service road ran down the side of their property, collected with surface waters along the rear property line and flowed along the rear property line toward Robinson Bayou.
In 1976, the City of Mobile issued a permit for construction on the adjacent property. The permit specified that the property was to be elevated to a grade above the *646 Jacksons' property. The developer was required, however, to execute an indemnity agreement to indemnify the city for damages to the property which might occur from construction in a flood-prone area.
Construction commenced approximately three years after the enactment of a city ordinance which regulated development of property in flood-prone areas.
The Jacksons' property was "grandfathered" out of the 1973 ordinanceas was all pre-existing developmentbecause of the overwhelming financial burden that would be imposed if existing structures had to be "raised" to new finished floor levels. To obtain the requisite finished floor elevation, the developer brought in fill dirt, which filled in the natural swale behind the Jacksons' property and elevated the adjacent land three feet higher than the Jacksons' property. This caused the water to be dammed up rather than flow along the natural backyard drainage swale. Thereafter, duplexes were constructed on the adjacent property. The Jacksons then began to experience the ponding of water in their backyard.
The Jacksons alerted the Public Works Department of the City of Mobile, and improvements were made along the service road in front of the Jacksons' property consisting of an earthen berm running on the west side of the service road and the ditch fronting Dauphin Island Parkway. This was done to increase the storage capacity of the ditch. After installing the berm, the city cut slits or weirs into the berm. The berm is higher than the Jacksons' property. On April 13, 1980, waters flowing from the ditch and service road entered the Jackson home. The water caused substantial damage to the structure and to personal property located in the house.
The Jacksons vacated the premises and lived in a camper parked in their backyard. After the April 13, 1980, event, Mr. Jim Chapman, Assistant City Engineer, as a result of calls by Mr. Jackson, viewed the Jackson property and recommended that the two culverts be changed to one 48-inch culvert and that a 36-inch pipe be installed to the rear of the property to handle the waters running along the rear of the Jackson property.
These recommendations were not acted upon before May 17, 1980, when water again entered the Jackson home and caused further damage.
The Jacksons submitted a claim dated August 26, 1980, itemizing damage to their home and its contents at $19,000. This figure did not include damages for inconvenience and mental anguish. On January 26, 1981, the Jacksons filed suit against the City of Mobile for the water damage to their property. The jury returned a verdict in their favor in the amount of $58,144 and the city appeals here, raising five issues.
The first issue raised is whether the Jacksons timely filed their notice of claim and their subsequent lawsuit pursuant to Code 1975, § 11-47-23 and § 6-2-39, respectively.
The city cites Timmons v. City of Prichard, 445 So. 2d 895 (Ala.1984), and Burge v. Jefferson County, 409 So. 2d 800 (Ala. 1982), to support its proposition that the Jacksons should have filed their notice of claim and their lawsuit six months, and one year, respectively, after the completion of the duplexes when the water started to pool on their property and, thus, when the damage first commenced.
In Timmons, landowners brought an action seeking to enjoin and restrain the City of Prichard from maintaining, or permitting the maintenance of, the sewage system in such a manner as to permit it to overflow onto their property. The sewage line was installed in May 1979, and because plaintiffs' suit to enjoin a permanent, unabatable nuisance was not filed until 1982, this Court held that the suit was untimely because "[n]either a claim nor the suit was filed within the six-month period prescribed by § 11-47-23, Code 1975."
In Burge, plaintiff complained that defendant filled in a drainage ditch and thereby *647 increased the flow of water on plaintiff's property, causing flooding. Defendant filled in the ditch in 1964 and 1965. Suit was instituted in 1977. Plaintiff contended that the amount of water was "relatively insignificant until 1970" and that it was "not until 1972 through 1976" that the water problems became substantial. Id. at 802. This Court held that plaintiff's nuisance theory was governed by the one-year statute, and further, that plaintiff's claim was time barred.
Based on the facts presented, we must decide when the statutes of limitations commenced to run in this case. Pursuant to the above case law, it appears that if the construction of the duplexes created a permanent unabatable nuisance and was the sole cause alleged for the damage complained of here, the Jacksons filed their notice of claim and their lawsuit too late. Here, however, the Jacksons also allege that the flooding was a result of negligent design and maintenance of the drainage system. In addition, no legal cause of action arose when the construction of the duplexes was completed. This Court addressed a similar problem in Bradley & McWhirter, Inc. v. Conklan, 278 Ala. 395, 178 So. 2d 551 (1965).
The Bradley court thoroughly reviewed this area of the law, as follows:
278 Ala. at 395, 178 So. 2d at 554-55.
Assuming the jury found that the buildup of the adjacent property caused the flooding, we find that, based on the facts presented here, the Bradley case must control our disposition of this case. Here, the construction itself did not create a cause of action and thus, whatever legal injury resulted from the construction created a cause of action when the injury occurred, and that is when the statute began to run. The injury complained of by the Jacksons occurred on April 13, 1980, and May 17, 1980, the dates the water came into their home. Their notice of claim was filed on August 26, 1980, and their lawsuit was filed on January 26, 1981.
In addition to the nuisance theory, the plaintiffs also allege that the flooding was a result of negligent design and maintenance of the drainage system. Regardless of which theory the jury utilized to find in favor of the plaintiffs, we must conclude that the present cause was timely initiated and is not barred by the statute of limitations.
Next, the city cites Rich v. City of Mobile, 410 So. 2d 385 (Ala.1982), to support its proposition that it is substantively immune from suit in this case. In Rich, homeowners sued the city, alleging that a building inspector negligently inspected, or negligently failed to inspect, sewer lines connecting plaintiffs' residence to the main system. Rich created a narrow exception to the rule of general liability for municipalities in situations in which the public policy considerations of a city's paramount responsibility to provide for the public safety, health, and general welfare outweighed the reasons for the imposition of liability on the municipality. This exception to the general rule of liability, however, is to be applied only 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." Rich, 410 So. 2d at 387.
We find that Rich is not applicable to the case at hand.
In Kennedy v. City of Montgomery, 423 So. 2d 187 (Ala.1982), this Court held that pursuant to Code 1975, § 11-50-50, municipalities are authorized to construct and maintain drainage systems, and, while a municipality is not required to exercise this authority, once it does so, a duty of care arises and a municipality may be liable for damages proximately caused by its negligence.
We find that the liability for negligent design or maintenance of drainage systems is analogous to that involved in the construction and maintenance of streets, alleys, or public ways or buildings, and, thus, that the city is not immune in this case.
Third, the city contends that there was insufficient evidence to support a finding of negligence. We disagree.
It is well settled in this state that a jury's determination of factual issues will not be disturbed unless it appears plainly and palpably wrong. Southeast Alabama *650 Broadcasting Co. v. Farrell, 434 So. 2d 756 (Ala.1983). Having reviewed the record, we find ample evidence from which the jury could have determined that the city was negligent in either design or maintenance.
Fourth, the city argues that the pattern jury charge on the act-of-God defense is misleading and prejudicial to the city in defending flood suits. See Alabama Pattern Jury Instructions: Civil § 28.18.
We find that the Alabama pattern jury charge on the act-of-God defense is a correct statement of law. As this Court held in Bradford v. Stanley, 355 So. 2d 328 (Ala. 1978), the act-of-God defense applies only to events in nature so extraordinary that the history of climatic variations and other conditions, in particular localities, affords no reasonable warning of them. Citing Gulf Red Cedar Company v. Walker, 132 Ala. 553, 31 So. 374 (1902), the Court went further, to state that it was a jury question as to whether the rainfall was so unprecedented as to be deemed an act of God, and that the jury's determination would not be disturbed unless it appeared plainly and palpably wrong.
The holding in Bradford is dispositive in the instant cause, as the act-of-God charge given by the court in this case properly instructed the jury that the term "act of God" applied to events so extraordinary that the history of climatic conditions and variations in a particular locality would afford no reasonable warning. In fact, this wording, verbatim, was contained in the act-of-God charge. Additionally, there is conflicting testimony in the record as to the classification of the April 1980 and May 1980 rains, and it was for the jury to determine whether the rainfall was so unprecedented as to be deemed an act of God; that determination, along with the jury's verdict in this cause, will not be disturbed unless plainly and palpably wrong. Thus, we find that the act-of-God charge given by the trial judge was proper, and the jury's determination in regard to the act-of-God charge will not be altered, since it is supported by the record.
Finally, the city contends that the Jacksons should be limited to the amount sought in their notice of claim. We disagree.
In Perrine v. Southern Bitulithic Company, 190 Ala. 96, 98, 66 So. 705 (1914), this Court held as follows:
190 Ala. at 98-99, 66 So. at 706.
In this case, Cleve Jackson filed a claim with the City, which read, in part, as follows:
We find, therefore, that Jackson claimed an amount in excess of $19,000 in his original claim filed with the City. In their complaint, the Jacksons claimed $150,000 as total damages. Under the facts of this case, we do not believe the Jacksons would be limited to a recovery of $19,000, because in Mr. Jackson's original claim, he notified the City of Mobile that the $19,000 figure "[did] not cover my inconvenience and mental anguish that [his] family and [he had] suffered since the home [they] lived in was flooded." We find no error in the trial court's judgment awarding the Jacksons $58,000 based upon the jury verdict in the Jacksons' favor in this amount.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ. | June 28, 1985 |
93ea00d2-98dc-490c-9a3d-f906b53cb322 | Ex Parte Zewen Marine Supply, Inc. | 477 So. 2d 417 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 417 (1985)
Ex parte ZEWEN MARINE SUPPLY, INC., and Fisherman Marine Products, Inc.
Ex parte: DEEP SEA FOODS, INC.
(In re: State of Alabama v. Deep Sea Foods, Inc., Zewen Marine Supply, Inc., and Fisherman Marine Products, Inc.)
Nos. 83-1190, 83-1191.
Supreme Court of Alabama.
July 19, 1985.
Rehearing Denied August 23, 1985.
*418 James D. Brooks and Richard L. Reed of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for petitioners Zewen Marine Supply, Inc. and Fisherman Marine Products, Inc.
Ronald P. Davis of Vickers, Riis, Murray & Curran, Mobile, for petitioner Deep Sea Foods, Inc.
Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and John J. Breckenridge, Asst. Counsel, Dept. of Revenue, and Asst. Attys. Gen., for respondent.
ALMON, Justice.
These petitions for writ of certiorari were granted because petitioners raised a probability of merit in their allegations of conflicts between the decision of the Court of Civil Appeals, 477 So. 2d 413, and the decisions of this Court in State v. Coastal Petroleum Corp., 240 Ala. 254,198 So. 610 (1940), and State v. Pure Oil Co., 256 Ala. 534, 55 So. 2d 543 (1951). At issue is whether petitioners are subject to the wholesale license or privilege tax imposed by Code 1975, § 40-17-174. The facts are found in the opinion of the Court of Civil Appeals.
The Court of Civil Appeals relied heavily on State v. Pure Oil Co., supra, in reversing the trial court's judgment that petitioners are not subject to the wholesale license tax. Pure Oil Company did not dispute that at least some of its business was "wholesale" as that term is commonly used in business, that is, selling goods for resale. The dispute in Pure Oil regarded which of Pure Oil's sales were to be used in computing the tax liability. The Court ultimately held that, once a taxpayer was found to be a wholesaler, both its wholesale sales and its retail sales formed the basis for the tax. In the course of its reasoning, the Court stated that the difference between wholesale and retail is "whether the purchases are in large or small quantities." 256 Ala. at 539, 55 So. 2d at 847. This statement, however, should be taken in the context of the Court's observation in that case:
256 Ala. at 540, 55 So. 2d at 848.
Even if "wholesale" originally only meant sales in large quantity, its meaning has now come to include the concept that such sales are usually sales for resale, not sales to consumers.[1] The definitions of "wholesale" and "retail" in the sales tax statutes strictly preserve this distinction between sales for resale and those for consumption. See Code 1975, § 40-23-1. The State argues that these definitions are not relevant to the instant privilege tax, but petitioners are subject to the sales tax as retailers. It would be anomalous to treat their sales as retail sales for the sake of one tax and as wholesale sales for the sake of another. Moreover, the point is that this is just one example of how the word *419 "wholesale" is taken to mean a sale for resale.
Petitioners here sell exclusively at retail, that is, to the ultimate consumers of the fuel oils. Thus, the phrase "at wholesale" as the crucial classification of taxpayers reached by the statute creates an ambiguity as to whether the statute applies to them at all. Does the statute's phrase, "Each person ... selling ... oils at wholesale, that is to say in quantities of 25 gallons or more," purport to reach wholesalers who sell in large quantities for resale, or does it purport to reach all sellers who sell quantities of 25 gallons or more? If the latter interpretation is urged, we respond, why is the word "wholesale" in the statute at all? Why did the legislature not just say, "Each person selling oils in quantities of 25 gallons or more"?
Retailers such as the petitioners reading the taxing statutes would naturally read this section and conclude that it did not apply to them. Any ambiguity in a taxing statute is to be resolved in favor of the taxpayer. Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219 (Ala.1984); City of Birmingham v. Stacy Williams Co., 356 So. 2d 608 (Ala.1978). The trial court was correct in its determination that § 40-17-174 should not be construed so as to impose tax liability on the petitioners. The judgment of the Court of Civil Appeals is reversed and the cause remanded.
REVERSED AND REMANDED.
All the Justices concur.
[1] Webster's New International Dictionary (2d ed. 1934) defined "wholesale" as "the sale of goods by the piece or in large quantity; distinguished from retail." The third edition (1971) brings in the criterion of resale: "The sale of goods or commodities in quantity usu. for resale (as by a retail merchant)." | July 19, 1985 |
88f93229-0936-4eb9-9da8-edb893105fa2 | Sellers v. Picou | 474 So. 2d 667 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 667 (1985)
Dorothy SELLERS and Charles E. Sellers
v.
Vorick P. PICOU.
84-55.
Supreme Court of Alabama.
July 3, 1985.
Robert T. Cunningham, Jr. and Richard E. Browning of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellants.
Paul W. Brock and M. Mallory Mantiply of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
JONES, Justice.
This appeal presents the issue whether a podiatrist is a "medical practitioner" as contemplated by Code 1975, § 6-5-482. If so, Plaintiffs'[1] causes of action are covered by the Alabama Medical Liability Act's two-year period of limitations. If not, Plaintiffs' claims are time-barred, and the summary judgment appealed from is due to be affirmed.[2]
Section 6-5-481, the definitional section of the Medical Liability Act, provides the following definitions:
The licensing provision of the Code, contained in § 34-24-50, provides:
Section 34-24-230, the definitional section relating to the licensing of podiatrists, provides:
The parties' arguments in support of their opposing positions are simple and straightforward. Appellee/Defendant argues that he is not a "medical practitioner" as defined by § 6-5-481(1) (i.e., that he is not licensed to practice medicine or osteopathy in the state of Alabama); therefore, he says, he is not subject to the Medical Liability Act and its two-year period of limitations. Appellants/Plaintiffs argue that even though Defendant is not licensed by the Alabama Board of Medical Examiners to practice medicine or osteopathy, the legislative intent to include podiatrists in the Medical Liability Act's coverage may be found by reading the definition of the "practice of medicine or osteopathy" in § 34-24-50(1) in conjunction with the definition of the "practice of podiatry" in § 34-24-230(2).
We agree with Plaintiffs that the "practice of podiatry," as defined in § 35-24-230(2), appears to be merely a more specialized "practice of medicine or osteopathy," as defined in § 34-24-50(1). Yet, as Defendant argues, he actually is not licensed to practice medicine or osteopathy in Alabama, the prerequisite for being a "medical practitioner" covered by the Medical Liability Act. Indeed, candidates for the practice of podiatry are examined and certified for the issuance of podiatric licenses pursuant to § 34-24-250 et seq., and are expressly exempt from examinations administered by the Board of Medical Examiners. Section 34-24-233.
Likewise, we do not find support for Plaintiffs' contention for inclusion of podiatrists within the scope of the Act in the broader definition of "other health care providers." Section 6-5-481(8). While the general term "health care provider" is used in other acts and in other contexts to embrace a wide range of health-oriented personnel, the use of this term in the Medical Liability Act is confined to "[a]ny professional corporation or any person employed by physicians, dentists or hospitals who are directly involved in the delivery of health *669 care services." Id. Clearly, Dr. Picou does not fall within this definition.
Thus, we must find that the legislature intended to exclude podiatrists from the Medical Liability Act's coverage. This finding is bolstered by the Act's express coverage of the practice of dentistry, § 6-5-481(2), since the qualifications and licensure of those practicing dentistry are controlled by a separate board, pursuant to § 34-9-1 et seq. Just as dentists are included by the Act in its application to "anyone licensed to practice medicine or osteopathy," anyone licensed to practice podiatry also could have been included within the scope of the Act. Although we might doubt the wisdom or question the logic of this plain intent to exclude the practice of podiatry, our interpretative role mandates that we find the meaning of a statute in its text and the intent of its framers.
Having found that the legislature intended that podiatrists not be subject to the Medical Liability Act and its two-year period of limitations, we affirm the trial court's summary judgment granted on the basis that the claims are time-barred.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
[1] The primary plaintiff is Dorothy Sellers, who claims that the Defendant negligently performed surgery on her feet. Her husband's derivative claim seeks damages for medical expenses and loss of consortium.
[2] The suits were filed more than one year, and less than two years, after the surgery. | July 3, 1985 |
8f384c9d-8e0a-40f9-8040-a25d626f3eff | Ex Parte Hawkins | 475 So. 2d 489 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 489 (1985)
Ex parte Robert A. HAWKINS.
(Re Robert A. Hawkins v. State of Alabama).
84-441.
Supreme Court of Alabama.
July 12, 1985.
*490 Keith A. Howard of Howard, Dunn, Howard & Howard, Wetumpka, for petitioner.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for respondent.
FAULKNER, Justice.
State prison inmate Robert A. Hawkins filed a petition for writ of habeas corpus in the Circuit Court of Elmore County. Hawkins contends that his "good-time" benefits had been revoked at a disciplinary hearing which failed to afford him due process of law. The prison disciplinary board recommended that Hawkins lose four months' "good time" and be removed from trade school after finding Hawkins guilty of being under the influence of alcohol. The trial court dismissed the petition without a hearing. The Court of Criminal Appeals, 461 So. 2d 59, affirmed without opinion. We granted certiorari to determine the constitutionality of the disciplinary proceeding which resulted in Hawkins's loss of good-time benefits.
An inmate may not be deprived of good-time benefits without being accorded at least some modicum of due process at his disciplinary hearing. Ex parte Bland, 441 So. 2d 122 (Ala.1983). In order to satisfy the due process requirement in a prison disciplinary proceeding which could result in the revocation of good-time benefits, the inmate must be provided with advance written notice of the charges against him and a written statement of the evidence *491 relied upon and the reasons for the action. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Williams v. Davis, 386 So. 2d 415 (Ala.1980).
In Williams v. Davis, supra, this Court held that due process also requires that an inmate be allowed to introduce witnesses and produce documentary evidence unless the attendance of such witnesses or the production of such documentary evidence would be unduly hazardous to institutional safety or correctional goals. Id. at 419. Due process, however, does not blanketly require allowing an inmate to call witnesses or to produce documentary evidence; rather, a flexible standard must be utilized by the courts to balance the interest of the inmate in avoiding the loss of his good-time benefits against the interests of the prison in institutional safety and correctional goals. Ex parte Bland, 441 So. 2d 122 (Ala.1983) (citing Wolff, supra, and Williams, supra).
To meet the due process standard, the disciplinary board's decision must not be arbitrary or capricious, and must be based upon substantial evidence. Washington v. State, 405 So. 2d 62 (Ala.Cr.App. 1981). The problem confronting this Court on appeal is that the record does not contain sufficient information for a thorough review of the denial of Hawkins's habeas corpus petition. There was no answer or return to the petition for writ of habeas corpus denying the allegations of fact in the petition. The state only filed a motion to dismiss and included a copy of the board's disciplinary report. Many of the facts in the petition remain unrefuted and therefore must be taken as true. Ex parte Floyd, 457 So. 2d 961 (Ala.1984).
Hawkins initially asserts that the disciplinary report contains an insufficient statement of the evidence relied upon and the reasons for the disciplinary action. The "Committee Findings & Reasons" recited in the disciplinary report were as follows:
This statement, in and of itself, falls short of complying with an inmate's minimal due process rights. However, when read in conjunction with the brief summary of the witnesses' statements, the disciplinary report, on its face, appears to contain a sufficient statement of essential facts supporting the board's findings. See Rice v. State, 460 So. 2d 254, 257 (Ala.Cr.App. 1984).
It is unclear from the disciplinary report or the record, however, whether Hawkins was given a full and fair opportunity to present his defense. The disciplinary report indicates that Hawkins requested Roy Williams and inmate Dale Holloway as witnesses. The report indicates that Holloway was "assigned to Draper CC and was not called to testify based on Administrative Regulation, 403." This blanket exclusion of a witness is not sufficiently specific enough, as the Administrative Regulation relied upon lists several reasons for excluding a witness from a disciplinary hearing. The report also indicates that witness Roy Williams "did not have first hand knowledge of the case." The report, however, fails to state whether Williams testified to that effect, or upon what evidence that conclusion was based. Likewise, Hawkins claims that he was not permitted to introduce evidence of his medical records, which, he argues, would show that his condition was caused by a medical problem. The report, however, contains no mention of the requested records and no indication as to why they were allegedly not produced.
While we recognize that the witnesses and documentary evidence may have justifiably been excluded, we are unable to determine from the record whether the board made any attempt to balance the interest of the inmate against the potential hazards to institutional safety or correctional goals, in accordance with this Court's mandate in Williams and Bland.
*492 Additionally, Hawkins claims that he was denied due process because the prison officials refused to allow him to have a blood or urine test to prove his innocence. In Barker v. State, 437 So. 2d 1375 (Ala.Cr. App.1983), the Court of Criminal Appeals determined that while scientific evidence was not necessary to prove that vegetable material seized from an inmate was marijuana, without evidence as to the qualifications of the arresting officer and why he believed the material was marijuana action of the disciplinary board would be arbitrary and capricious. Id. at 1377.
While there is no constitutional requirement that prison officials conduct breath analysis or other scientific tests to determine whether an inmate is intoxicated, in this case the record does not indicate whether the arresting officer or any witnesses were properly qualified to state their opinions. Additionally, the report indicates that Captain Rucker, and possibly Sgt. Robinson, did not personally testify before the board.
From the record before us, we are unable to determine whether the board complied with due process standards or whether its actions were arbitrary and capricious. We, therefore, have no choice but to reverse and remand this case to the Court of Criminal Appeals for entry of an appropriate order directing the trial court to hold an evidentiary hearing on Hawkins's petition for writ of habeas corpus.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that the Court must reverse and remand the case. I interpret the majority opinion's repeated statements that the record is unclear as to various issues, to mean that factual questions were raised in the petition and not adequately responded to by the state. Therefore, it was error for the circuit court not to hold an evidentiary hearing on the prisoner's petition. Ex parte Crear, 460 So. 2d 1208 (Ala.1983). | July 12, 1985 |
a2cdb234-fc82-4a10-8404-885326b703b0 | Williams v. Killough | 474 So. 2d 680 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 680 (1985)
Thresa WILLIAMS
v.
Forrest KILLOUGH.
83-944.
Supreme Court of Alabama.
July 12, 1985.
David Gespass of Gespass & Johnson, Birmingham, for appellant.
Julian M. King of McCrary & King, Talladega, for appellee.
PER CURIAM.
Plaintiff, a former employee of the office of the probate judge of Talladega County, sued defendant, the probate judge who dismissed her from his employ. Plaintiff alleged breach of contract, wrongful discharge, negligence and wantonness, defamation, bad faith, outrage, and trade interference. Plaintiff appeals from summary *681 judgment in favor of defendant. We affirm.
Forrest Killough, the former probate judge of Talladega County, was defeated in his bid for renomination in September of 1982. In November of 1982, he was ordered by the Talledega County Commission to terminate 25% of the personnel in his office. Killough proceeded to terminate five employees in his office. Thresa Williams, supervisor of the license division in the probate office, was among those terminated.
Williams alleges that she was terminated because of her failure to support defendant in his bid for renomination. In her affidavit in opposition to the motion for summary judgment, Williams claimed that she had a conversation with Killough during the course of which Killough "told me that if I could not support the person I worked for I should be looking for another job." She also claimed that at an office meeting Killough stated that those who did not support his campaign need not be employed in his office.
On appeal, plaintiff argues that the trial judge erred in granting summary judgment on her counts for breach of contract, wrongful discharge, negligence and wantonness, and bad faith.
We are presented with four issues in this case:
1. Whether, under these facts, Killough was a proper defendant.
2. Whether Alabama should abrogate the employee-at-will doctrine.
3. Whether violation of a criminal statute gives rise to a cause of action for wantonness and negligence.
4. Whether Alabama should recognize the tort of bad faith beyond the insurance contract context.
Although plaintiff appears to have been paid from funds of the county government, it is not disputed that Killough, as judge of probate, had the authority to employ and terminate persons working in the probate office. Williams alleged that Killough acted maliciously, in bad faith, and in violation of a criminal statute when he terminated her. We hold that Killough was a proper defendant.
Plaintiff has conceded that the employee-at-will doctrine applies in this case. She recognizes that she cannot prevail under this doctrine; thus, she asks this Court to abrogate it.[1] We find it unnecessary to discuss this issue, since we have declined on numerous recent occasions to modify the employee-at-will doctrine. Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala. 1984) (the opinion in that case and Justice Shores's special concurrence contain a listing of most of the recent cases in which we have had an opportunity to modify the employee-at-will doctrine and have declined to do so). See also, Self v. Bennett, 474 So. 2d 673 (Ala.1985).
The third issue was raised in conjunction with the employee-at-will argument before the trial court. Williams alleged that Killough violated Code 1975, § 17-1-7 (Cum.Supp.1984),[2] a criminal statute. She argued that the doctrine of employee-at-will should not apply because violations of criminal statutes are contrary to public policy. We have been confronted by similar arguments where it was contended that the employee-at-will doctrine has been circumscribed "when such discharge contravenes a statute or is contrary to `public policy.'" E.g., Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130, 1131 (Ala.1977); Martin v. Tapley, 360 So. 2d 708, 709 (Ala. 1978). We rejected those contentions, quoting from Tennessee Coal, Iron and *682 Ry. Co. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909), which held that
In regard to Williams's count based on "bad faith," this Court has refused to extend this tort beyond the insurance contract context. Dickey v. Alabama Farm Bureau Mutual Ins. Co., 447 So. 2d 693 (Ala.1984); Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala. 1983). Moreover, in this case, we have not been presented with any compelling reason to change our stance.
We hold that the trial court did not err in granting summary judgment on the plaintiff's counts for breach of contract, wrongful discharge, negligence and wantonness, and bad faith. We hereby affirm the judgment of the trial court.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON and SHORES, JJ., concur.
JONES, EMBRY, BEATTY and ADAMS, JJ., concur in the result.
[1] We note that Williams does not claim that any of her constitutional rights have been violated. See, Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977).
[2] Code 1975, § 17-1-7(b) (Cum.Supp.1984), provides:
"No person shall attempt to use his official authority or position for the purpose of influencing the vote or political action of any person. Any person who violates this subsection (b) shall be guilty of a felony and punishable by a fine not to exceed $10,000.00 or imprisonment in the state penitentiary for a period not to exceed two years, or both." | July 12, 1985 |
93ed7439-aa30-4bdd-b762-e41ce576893e | Thompson v. Wilson | 474 So. 2d 657 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 657 (1985)
C. Lenoir THOMPSON
v.
Milton C. WILSON.
84-343.
Supreme Court of Alabama.
June 28, 1985.
Mayer W. Perloff of Reid, Perloff & Doyle, Mobile, for appellant.
Oliver J. Latour, Jr. of Owens, Latour & Simpson, Bay Minette, for appellee.
ADAMS, Justice.
This appeal arises from the circuit court's grant of summary judgment for the defendant on all of the counts set forth in the plaintiff's complaint. We affirm.
On June 20, 1984, plaintiff, C. Lenoir Thompson, filed a complaint against the defendant, Milton C. Wilson, claiming in Count One that on January 27, 1978, the defendant entered into a lease agreement with plaintiff's son which provided for the lease of certain real property for a period of five years and which provided that the plaintiff's son would have the right to renew the lease in its entirety for three additional five-year terms. It was further stated in the complaint that at the time the lease was negotiated, the defendant knew that the lessee was intending to operate a barbecue business on the property and that in furtherance of this objective the plaintiff's son had erected a building on the property at his expense. In September 1981, the lease was assigned by plaintiff's son to plaintiff.
*658 According to the complaint, about the time it became necessary to give notice to exercise the option to renew, plaintiff and defendant entered into negotiations which led plaintiff to believe that defendant intended to purchase the improvements on the property for the sum of $10,000.00. However, plaintiff says defendant dragged out the negotiations to the extent that plaintiff failed to exercise his option to renew the lease, and plaintiff claims that such conduct on the part of the defendant was taken with the intent to defraud plaintiff out of the improvements on the property.
Plaintiff made other claims in Count Two and amended Count Two-A. He does not challenge the adverse rulings on those counts.
Defendant, in his answer to plaintiff's complaint denied that he had entered into any negotiations concerning purchasing improvements placed on the leasehold property by the plaintiff's son, or any agreement concerning these improvements. In addition thereto, and we believe this to be dispositive of plaintiff's case, defendant specifically raised two affirmative defenses by way of special pleas: The Statute of Frauds and the statute of limitations. Defendant also claimed that plaintiff, by his allegations, was attempting to modify, by an alleged parol agreement, the terms of a written contract required to be in writing by the Statute of Frauds.
In plaintiff's brief to us he claims that the sole issue for determination on this appeal is whether the trial court erred in granting summary judgment when the complaint and answer provided a factual dispute in the evidence, thus providing a scintilla of evidence supporting plaintiff's contention. Strangely, he does not attempt, by way of original brief or reply brief (he did not file a reply brief), to refute defendant's claim in his special pleas that the Statute of Frauds and the statute of limitations acted as a bar to recovery in this case. Under these circumstances, defendant is entitled to suggest another issue. He does. And we agree that the dispositive issue in this case is:
By affidavit, deposition, and exhibits, the following evidence was adduced by defendant. The primary term of the lease, dated January 27, 1978, expired on May 8, 1983. The last day plaintiff had to exercise his first option under the lease was November 8, 1982. Suit was not filed in this case until June 20, 1984, more than a year and a half after the last day plaintiff could have exercised his option and more than a year after the lease had expired. In response to a request made by the defendant that plaintiff bring all written instruments bearing on the claim made concerning the leasehold property, plaintiff responded that he had no written instruments other than the lease itself.
Although plaintiff, in his complaint, alleged that the defendant began negotiating with him at or near the time plaintiff was to exercise his option to renew, and that plaintiff began his negotiations concerning the purchasing of the improvements on the property at or near the time he was to exercise his option to renew, in his deposition, plaintiff contradicted this statement in his complaint. The following is plaintiff's testimony on this point:
On the other hand, testimony adduced by defendant makes it very clear when plaintiff thought his rights were terminated. In plaintiff's deposition, he stated the following:
As we have previously stated, defendant raises two special pleas of affirmative defense, namely, the Statute of Frauds and the statute of limitations. In addition thereto, he argues the rule that a parol agreement cannot be used to undermine a written lease required to be in writing by the Statute of Frauds. We will discuss defendant's claims with reference to these defenses together, since they act in tandem to deny plaintiff's recovery. They will be discussed as each bears on the issue as reframed above.
Code 1975, § 8-9-2 provides as follows:
The thrust of plaintiff's complaint is that defendant began negotiations with him concerning the purchase of improvements, in the form of a building which had been put on the leasehold premises, for the sum of $10,000.00. Plaintiff admits that he has no written expression of this; therefore, his complaint flies in the teeth of the Statute, although on the face of the complaint and defendant's answer, plaintiff has shown a genuine fact dispute, namely, the dispute as to whether defendant did agree to purchase the improvements. This is not enough when the defendant sets up the special plea of the Statute of Frauds. We have held that in such land situations, where the Statute of Frauds has been pleaded, it is incumbent upon the opposite party to show some reasons why the Statute is not applicable in his case. Moore v. Merchants and Planters Bank, 434 So. 2d 751, 754 (Ala.1983); Hunter v. State, 293 Ala. 226, 229, 301 So. 2d 541 (1974). Such a rule is fair to plaintiff, since plaintiff alone would be in the best position to explain the *660 special circumstances why the Statute should not apply to him.
We have already said that plaintiff, in neither affidavit, deposition, brief, nor reply brief, has produced a scintilla of evidence to show why the Statute would not apply. We are of the opinion, and so hold, that even though plaintiff may produce a genuine issue of material fact, if the other side makes out a prima facie case under a special plea of the affirmative defenses of the Statute of Frauds or the statute of limitations, it is incumbent upon the opposite party to come forward with at least a scintilla of proof that these defenses do not apply to him. Otherwise, summary judgment is appropriate.
Although the statute of limitations argument is not as open and shut as the Statute of Frauds argument, it nevertheless is also applicable in this case. Under § 6-2-39, Code 1975, "all actions for fraud must be commenced within one year." Section 6-2-3 attempts to alleviate the harshness of that rule by providing that one can file an action for fraud within one year of the discovery of the facts constituting the fraud. The question then arises as to when fraud is discovered for statute of limitations purposes. The answer, from the cases, is that the law considers it discovered when it ought to have been discovered. Willcutt v. Union Oil Co., 432 So. 2d 1217 (Ala.1983); Papastefan v. B & L Const. Co., 385 So. 2d 966 (Ala.1980); State Security Life Ins. Co. v. Henson, 288 Ala. 497, 262 So. 2d 745 (1972). Plaintiff, in his deposition, stated that he was trying to sell the building before his lease expired. If we take the date of November 8, 1982, as the last day plaintiff could exercise his optionand there is no dispute about that dateplaintiff's suit filed on June 20, 1984, was clearly more than one year from the time he must have known that defendant was not going to purchase his property. Therefore, the statute of limitations is clearly applicable. Even if we take the actual date the lease expired, May 8, 1983, plaintiff's suit on June 20, 1984, was filed more than a year from that date.
But although plaintiff says in his complaint that the negotiations began at or about the time for him to exercise his option, in his deposition he said the negotiations began in June or July 1983. If the negotiations began in June or July 1983, then there cannot be any fraud at all in this case, since plaintiff's option, as well as his lease, had expired by this timethe option expiring on November 8, 1982, and the lease itself expiring on May 8, 1983. This is true because at all times plaintiff contends that he was trying to sell the property prior to the time that his lease expired.
The problem in this case is exacerbated because plaintiff claims that his problem was caused by the fact that he did not really know when the lease and option expired. Rather than provide comfort to plaintiff, his assertion of ignorance of the terms of the lease operates to his disadvantage. In State Security Life Ins. Co. v. Henson, 288 Ala. 497, 262 So. 2d 745 (1972), this Court said:
Such an argument is particularly unavailable to the plaintiff in this case, since he assisted his son in redrafting the paragraph of the lease dealing with the six-month option to purchase. Therefore, with the statute of limitations defense, as with the Statute of Frauds defense, summary judgment is appropriate where the moving party has made out a prima facie case of the existence of these defenses and the opposite party has failed to come forward with even a scintilla of proof to bring himself out from under these bars. *661 Moore's Federal Practice, Vol. 6, Part 2, Paragraph 56.17[4], p. 56-735 et seq. (1985); 2 C. Lyons, Alabama Rules of Civil Procedure Annotated, (1973), n. 35 et seq. to commentary on Rule 56, p. 367, et seq.
It is obvious from the foregoing facts that inasmuch as plaintiff had no written agreement other than the lease, his assertions of an agreement to purchase improvements was an attempt to modify by parol agreement the terms of a written lease required to be in writing by the Statute of Frauds. We have clearly held that such is not legally permissible. Suter v. Arrowhead Investment Co., Ltd., 387 So. 2d 815, 817 (Ala.1980). Inasmuch as the parol evidence rule excludes this alleged agreement, plaintiff's claim has no substance, and summary judgment was appropriately rendered for the defendant. Moore's Federal Practice, Vol. 6, Part 2, Paragraph 56.17[43], p. 56-954 et seq.; Parish v. Howard, 459 F.2d 616 (8th Cir.1972); Vickery v. Fisher Governor Co., 417 F.2d 466 (9th Cir.1969).
For the foregoing reasons, the trial court's summary judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | June 28, 1985 |
1cb3b78d-ea63-4dc7-93f1-52e0482787e8 | Baker v. Ball | 473 So. 2d 1031 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1031 (1985)
Wilmer E. BAKER and Mary Louise Baker
v.
E.E. BALL, d/b/a Owen and Ball, Attorneys at Law.
Wilmer E. BAKER and Mary Louise Baker
v.
Arthur MANNICH, d/b/a Mannich Realtors, Inc.
83-1233, 84-255.
Supreme Court of Alabama.
June 21, 1985.
Rehearing Denied July 19, 1985.
*1033 Wilmer C. Baker and Mary Louise Baker, pro se.
Carroll H. Sullivan of Gaillard, Little, Hume & Sullivan, Mobile, for appellees E.E. Ball, d/b/a Owen and Ball.
Edward S. Sledge III and Blane H. Crutchfield of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Arthur C. Mannich, d/b/a Mannich Realtors.
MADDOX, Justice.
These are consolidated appeals, one from an order granting summary judgment and one from an order denying a motion to rescind, revise, or clarify and denying a motion for relief from judgment.
In October 1976, Wilmer E. and Louise Baker sold a residence to Mr. and Mrs. William P. Dexter. In March 1977, the Dexters brought suit against the Bakers and Mannich Realtors, the listing agent, alleging fraud, requesting a rescission of the contract of sale, and seeking punitive damages. The Bakers retained attorney E.E. Ball to represent them in defense of the Dexters' suit. The case was tried, and a directed verdict was entered in favor of the Bakers and Mannich. The Dexters appealed, and this Court reversed and remanded for a new trial. Dexter v. Baker, 382 So. 2d 552 (Ala.1980). Before a second trial could be held, in July 1980, the Dexters and Bakers reached a settlement agreement.
Thereafter, the Bakers retained the services of a second attorney and, on November 26, 1980, brought suit, alleging that Mannich had negligently failed to ensure restoration of their Veterans Administration loan eligibility and to ensure their release from mortgage liability. In February 1982, this suit was settled, the Bakers receiving $10,036.50 in return for their execution of a release and indemnity agreement. That agreement provided as follows:
By stipulation of the parties, the suit was dismissed with prejudice on February 3, 1982.
On November 2, 1982, the Bakers filed a pro se complaint against Ball, alleging essentially the same things they had alleged against Mannich. Ball moved for dismissal pursuant to Rule 12(b)(6), Ala.R.Civ.P. His motion was granted and, after a hearing, the Bakers' motion to reconsider was denied. The Bakers appealed, pro se, to this Court, which reversed and remanded, Baker v. Ball, 446 So. 2d 39 (Ala.1984), holding that the trial court had applied the wrong statute of limitations in dismissing the Bakers' suit. On remand, Ball moved for summary judgment, asserting the Bakers' release agreement with Mannich as a defense. The motion was granted, on July 20, 1984, and the Bakers again appealed to this Court, pro se.
On October 14, 1984, the Bakers filed two pro se motions in their action against Mannich, one asking the court to "rescind, revise or clarify" the release they executed, so that it would not apply to Ball, and another requesting relief from the dismissal entered pursuant to the settlement agreement. This second motion was entitled "Motion to get Relief from Judgment under Alabama Rule 60-B-2 [sic]." Both *1035 motions were denied, and the Bakers filed another pro se appeal with this Court, along with a motion, which this Court granted, to consolidate both of their appeals.
The issues now before us are: (1) whether the trial court erred in denying the Bakers' motion to rescind, revise, or clarify and motion for relief from judgment; and (2) whether the trial court erred by granting summary judgment in favor of Ball. We find no error and affirm.
Because the Bakers' motion to "rescind, revise or clarify" is not specifically recognized in Alabama, their motion must be treated as being a motion to alter, amend, or vacate a judgment pursuant to Rule 59(e), Ala.R.Civ.P. Such motions must be filed no later than 30 days after the entry of the judgment challenged; if they are not filed within that time, the trial court cannot correct, modify, or amend its judgment pursuant to such a motion. Sparks v. Delta Masonry Contractors, 411 So. 2d 808 (Ala.Civ.App.1982). Therefore, the Bakers' motion, coming more than two and one-half years after the dismissal of their suit against Mannich, was properly denied.
Similarly, the Bakers' motion for relief from judgment was also time-barred, having been filed more than four months after the court's order dismissing their suit. Rule 60(b)(2), Ala.R.Civ.P. The Bakers' argument here that they intended this motion to be a Rule 60(b)(6) motion (which need only be filed within a reasonable time after the judgment, not exceeding three years) is rejected. The motion itself, which clearly states that it seeks relief "under Alabama Rule 60-B-2" and sets forth as grounds for relief that "plaintiffs have additional evidence," shows the Bakers' intent to file a 60(b)(2) motion rather than a 60(b)(6) motion. Even if we treated the Bakers' motion as a 60(b)(6) motion, we still could not reverse the trial court's denial of it unless presented with evidence that the court abused its discretion in denying it. Young v. Reddock, 437 So. 2d 1247 (Ala. 1983). No such evidence is present in this case.
As to the propriety of the trial court's order granting summary judgment in favor of Ball, Alabama law is clear that by executing a general release, like the one signed by the Bakers, a party releases all tortfeasors against whom a cause of action is not specifically reserved, regardless of whether those tortfeasors are parties to the release or are expressly mentioned therein. Johnston v. Bridges, 288 Ala. 156, 258 So. 2d 866, cert. denied, 409 U.S. 847, 93 S. Ct. 52, 34 L. Ed. 2d 88 (1972). As this Court has previously stated:
Miles v. Barrett, 233 Ala. 293, 134 So. 661 (1931).
There is no doubt that the release of Ball was supported by $10,036.50 as consideration, regardless of the fact that Mannich, not Ball, actually paid it.
Bridges, supra, 288 Ala. at 162, 258 So. 2d at 872. Although the Bakers raise the issue of fraud, the record before us is completely devoid of any evidence that the release in question was actually procured by fraud. There is also no basis for an argument that the release was ambiguous. In both Conley v. Harry J. Whelchel Co., 410 So. 2d 14 (Ala.1982), and Finley v. Liberty Mutual Insurance Co., 456 So. 2d 1065 (Ala.1984), this Court has recently held language strikingly similar to that of the present release to be unambiguous.
Consequently, we cannot say that the trial court erred in construing the *1036 present release based purely upon the language of the instrument itself. That language releases:
Because the above language is so broad as to include "all claims" and, at the same time, so specific as to apply, with particularity, to claims arising out of the failure of the Bakers to be released from their mortgage liability and to have their V.A. eligibility reinstated, we agree with the trial court that Ball comes within the purview of that language. Therefore, we hold that Ball is released from all liability arising out of his representation of the Bakers in the matter in question and that the trial court was correct in granting summary judgment in favor of Ball.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | June 21, 1985 |
04014b44-a5e9-4d6a-a20f-b7d327202425 | Ex Parte Douthit | 480 So. 2d 547 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 547 (1985)
Ex Parte Robert DOUTHIT.
(Re Robert DOUTHIT v. Paul T. WILKS, Sr., Jene C. Wilks, William F. Aldridge, Valley Federal Savings & Loan Association, Timothy John Morgan, Kimberly K. Morgan and Central Bank of the South).
83-1112.
Supreme Court of Alabama.
June 28, 1985.
On Application for Rehearing September 13, 1985.
*550 J.A. Dardess, Sheffield, for petitioner.
William F. McDonnell, Sheffield, for respondent.
TORBERT, Chief Justice.
This case concerns the priorities among several parties in the enforcement of a mechanic's lien. Robert Douthit petitioned this Court for a writ of certiorari following the Court of Civil Appeals' affirmance of the trial court's judgment in favor of the respondents, Paul T. Wilks, Sr., Jene C. Wilks, William F. Aldridge, Valley Federal Savings and Loan Association, Timothy John Morgan, Kimberly K. Morgan, and Central Bank of the South. 480 So. 2d 544. The case was heard by the trial court without a jury.
The record before this Court reflects the following facts:
Douthit entered into a contract with Paul and Jene Wilks on June 24, 1982, to repair fire damage to their residence. The work was completed on July 9, 1982, and the payment of the contract price of $7,187.11 became due on August 9, 1982. Douthit perfected a mechanic's lien by filing a lien statement on September 16, 1982. He brought suit to enforce the lien on November 16, 1982.
At the time the repairs to the Wilkses' house were commenced, there were two prior mortgages on the property. The Wilkses purchased the property in 1970 from Aldridge. The Wilkses assumed a prior mortgage to Valley Federal Savings and Loan Association and executed a second mortgage to Aldridge. Subsequent to the commencement of the repairs, Aldridge foreclosed his mortgage on August 16, 1982, and purchased the property at the foreclosure sale.
Aldridge agreed orally on September 3, 1982, to sell the property to Timothy and Kimberly Morgan in exchange for $11,500.00 cash and the assumption of the Valley Federal mortgage of $20,298.74. The *551 Morgans paid to Aldridge $100.00 on September 3, 1982. Aldridge conveyed the property by general warranty deed dated September 8, 1982, and recorded the deed September 14, 1982. The Morgans paid an additional $3,900.00 of the purchase price on September 9, 1982, and took possession of the property on September 12, 1982.
On September 15, 1982, Douthit informed the Morgans that he had not been paid for his work on the house and that he intended to obtain a lien against the property. On September 17, 1982, one day after Douthit perfected his interest by filing his lien statement, the Morgans executed a mortgage to Central Bank of the South for the $7,500.00 balance of the purchase price. This balance was paid to Aldridge on September 22, 1982.
The Court of Civil Appeals, ultimately affirming the trial court's judgment in its entirety, found that the mortgage from Aldridge to Valley Federal Savings and Loan Association and the mortgage from the Wilkses to Aldridge were recorded prior to commencement of Douthit's repairs on the building and, therefore, had priority over Douthit's mechanic's lien. The court also determined that the Morgans had purchased the property from Aldridge as innocent purchasers for value, without notice, and thereby took title to the property free of Douthit's lien claim. It was further adjudged that the mortgage obtained from the Morgans by Central Bank of the South after Douthit had commenced work on the house and obtained his lien also had priority over Douthit's mechanic's lien. This Court granted Douthit's petition for certiorari. We reverse.
The petitioner cites as error the Court of Civil Appeals' finding: (1) that the Morgans were bona fide purchasers, for value, without notice, even though the Morgans had acquired actual notice of the mechanic's lien prior to full payment of the contract purchase price; (2) that the mortgage given to Central Bank subsequent to the commencement of work on the Morgans' property and recorded after the mechanic's lien statement was filed was superior to the prior recorded mechanic's lien; and (3) that Aldridge's interest in the property mortgaged to the Wilkses amounted only to a right of equitable redemption, which was extinguished by the subsequent foreclosure of the mortgage.
Petitioner contends that the standard of review in the present case should be de novo and that the ore tenus rule should not apply because the evidence is basically undisputed. It is true that when the evidence before the trial court is undisputed, the ore tenus rule is inapplicable and the appellate court will sit in judgment of the evidence de novo, indulging no presumption in favor of the trial court's application of the law to the facts. Kessler v. Stough, 361 So. 2d 1048 (Ala.1978); Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975). However, in the present case, the facts most crucial to the outcome of the court's decision were not stipulated. The facts concerning whether the Morgans had actual knowledge of Douthit's specific lien claim prior to entering their contract for the purchase of the property from Aldridge were disputed. As to these disputed facts, the court heard ore tenus testimony and personally observed the witnesses. Where the facts are contradicted, such as in the present case, the rule of law which dictates that we must defer to the trial court in regard to findings of fact is clearly applicable and we, therefore, proceed on the presumption of the correctness due to be accorded the findings of the trial court.
Did the court err by finding that the Morgans were innocent purchasers, for value, without notice of Douthit's lien and thereby take title to the property free from the lien?
A mechanic's lien is purely statutory. Code 1975, § 35-11-211, states in pertinent part: "Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent *552 to the commencement of work on the building or improvement...." A purchaser taking as absolute owner of the fee is clearly not included within any class mentioned in the statute. A purchaser is neither lienor, mortgagee, nor encumbrancer, but the absolute owner; and if he purchases without notice, actual or constructive, the statute gives no priority as against him. Guaranty Pest Control, Inc. v. Commercial Investment & Development Corp., 288 Ala. 604, 264 So. 2d 163 (1972); Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90 (1928); Martin v. Clarke, 154 Ala. 425, 46 So. 232 (1908). This rule that allows a subsequent purchaser without knowledge of an outstanding debt to have priority over a later-filed lien applies only to existing buildings. However, a mechanic's lien, properly filed within the prescribed statutory six-month period, on a new building, has priority over a purchaser regardless of actual notice. The purchaser of a new building is charged with constructive notice during the statutory period and takes subject to a mechanic's lien filed on the property during this period. Starek v. TKW, Inc., 410 So. 2d 35 (Ala.1982).
Since Code 1975, § 35-11-211, does not refer to subsequent purchasers, it has become the rule that the holder of a mechanic's lien has the obligation to show that the subsequent purchaser of an existing building had either actual or constructive notice of the lien at the time of the purchase, Starek, supra. We have also noted that it is difficult, if not impossible, to lay down any general rule as to what facts will in every case be sufficient to charge a party with notice or put him on inquiry. Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124 (1917).
In the present case, the trial court found that there was not sufficient evidence to charge the Morgans with notice of Douthit's lien. We must affirm the trial court's decree if it is fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Patterson v. Brooks, 285 Ala. 349, 232 So. 2d 598 (1970). When the trial court hears evidence presented ore tenus, its judgment is presumed correct and will not be disturbed unless plainly and palpably erroneous. League v. McDonald, 355 So. 2d 695 (Ala.1978). As stated previously, the issue of what notice, if any, the Morgans had was disputed and the trial court listened to the testimony of both parties in this regard. On appeal, this Court indulges all favorable presumptions in favor of the evidentiary conclusion reached in the trial court, and will not disturb such conclusion unless it is palpably erroneous or manifestly unjust. Decker v. Hays, 282 Ala. 93, 209 So. 2d 378 (1968). In light of the testimony as reflected in the record and the presumptions favoring the trial court's finding, we cannot say that the court's conclusion was palpably erroneous or manifestly unjust. The evidence was sufficient to find that the Morgans were, in fact, without notice of Douthit's lien.
Douthit requests that we consider additional facts pertaining to the notice issue at hand. This same request was made to the Court of Civil Appeals and apparently rejected. The facts Douthit wishes to be considered here are those contained in an affidavit by Mrs. Morgan which tended to support the petitioner's motion for summary judgment prior to the trial of the case. The affidavit, or the facts contained therein, was never brought forward by Douthit during the trial of the case, so far as the record reflects. Since this additional evidence was not offered at the trial of this cause, there was nothing preserved in the record and, therefore, that evidence is not before us for review. Lipscomb v. Tucker, 294 Ala. 246, 314 So. 2d 840 (1975). Even if the evidence were to be considered by this Court, it would not alter our decision as to the holding of the Court of Civil Appeals.
Douthit also asserts that the Morgans were not innocent purchasers because they still owed $7,500.00 of the contract purchase price at the time they gained actual notice of his lien. The Court of Civil Appeals found that the evidence of the Morgans' executed contract of sale, the *553 payment of a substantial part of the total purchase price, the delivery of a deed to the property, and their taking possession of the property, all prior to the date they received actual notice of the lien, was sufficient to support a finding that the Morgans were innocent purchasers. We agree. Craft v. Russell, 67 Ala. 9 (1880), established the rule that one claiming to be an innocent purchaser, without notice, must show that he purchased in good faith and parted with value by paying money or other valuable things, or assumed a liability or suffered a detriment. This appears to be a rather liberal standard by which to determine at what point one becomes a purchaser for value. Thus, payment of a substantial sum, along with the assumption of a substantial obligation, and the binding of oneself to a contract to pay, could be a sufficient detriment or valuable consideration to establish innocent purchaser status.
The case of Wise v. Quina, 174 So. 2d 590 (Fla.Dist.Ct.App.1965), cited by respondents, is close in point to the present issue. In Wise, the purchasers of land paid $8,000.00 of a $34,000.00 purchase price and had executed a promissory note for the balance still owing before they learned of an adverse claim to an easement on the purchased property. The Florida appellate court held that the fact that the purchasers were irrevocably bound to pay the balance of the purchase price was sufficient to support a finding that they were bona fide purchasers. The court noted that although the purchasers could elect to default on the instruments, they had no legal right to revoke their promise and were bound to pay. This is the general rule in other jurisdictions as well. 77 Am.Jur.2d, Vendor and Purchaser, § 706 (1975).
The general rule in Alabama is that, in the absence of fraud, relievable mistake, insolvency, or non-residence of the vendor, a vendee in peaceful undisturbed possession of land under and by virtue of a valid conveyance containing covenants of title and general warranty, is not entitled to a rescission of the contract, or a return of the purchase money or any part thereof, on the ground of a defect in the title of his vendor. Alger-Sullivan Lumber Co. v. Union Trust Co., 218 Ala. 448, 118 So. 760 (1928); Fields v. Clayton, 117 Ala. 538, 23 So. 530 (1897). In the present case, although the Morgans could have chosen to default under the contract with Aldridge for the purchase of the property, they were irrevocably bound to Aldridge for the purchase price and bound on the indebtedness to Valley Savings and Loan Association of over $20,000.00. In addition, the Morgans had paid $4,000.00 of the purchase price, received a general warranty deed to the property, and taken possession of the property prior to any actual notice of Douthit's lien. The Court of Civil Appeals found that the Morgans were so far bound in their contract with Aldridge, prior to actual notice of Douthit's lien, as to make them innocent purchasers, and we find no error in this conclusion. However, we recognize that under facts and circumstances different from those in the present case, the status of innocent purchaser may not be found.
The Court of Civil Appeals held that the mortgage of the Morgans to Central Bank conveyed title free from the lien of Douthit, even though the bank, having taken the mortgage subsequent to the lien, was on constructive notice of the lien. Douthit's lien statement was filed September 16, 1982. The mortgage was executed September 17, 1982, and recorded September 20, 1982. As noted previously, Code 1975, § 35-11-211, states that a mechanic's lien shall have priority over all other liens, mortgages, or encumbrances created subsequent to the commencement of work on the building. The policy of the statute is "to secure to the materialman and the laborer the just reward of their material and labor ... based upon the general equitable principle that one should not enjoy the benefit thereof without just compensation therefor." Lily Flagg Building Supply Co. v. J.M. Medlin & Co., 285 Ala. 402, 232 So. 2d 643, 646 (1970). The Court of Civil *554 Appeals noted that, by the terms of the statute, Douthit's lien had priority over a subsequently executed mortgage by the Morgans to Central Bank. This result is supported by the case of Gamble's, Inc. v. Kansas City Title Insurance Co., 283 Ala. 409, 217 So. 2d 923 (1969), and Schwab v. Estes Lumber Co., 225 Ala. 452, 143 So. 829 (1932). However, on rehearing, the court found that to disallow the bank from taking the mortgage from the Morgans free from the lien of Douthit, as prescribed by statute, would directly conflict with the longstanding rule in Alabama that one who purchases from a bona fide purchaser, without notice, succeeds to the right of his vendor, and regardless of actual or constructive notice on his part can protect himself by interposing his vendor's want of notice as a defense. Barron v. Hughes, 202 Ala. 207, 80 So. 29 (1918). It is stated in 77 Am.Jur.2d, Vendor and Purchaser, § 718 (1975), that: "[T]he purpose of this rule is to prevent a stagnation of property and to protect the first purchaser, who, being entitled to hold and enjoy, must be equally entitled to sell. Otherwise, a bona fide purchaser might be prevented from selling his property for full value." Based on this rationale, the court held that because the Morgans were innocent purchasers for value, without notice, the bank, as a purchaser from the Morgans, was entitled to assert this same status, despite the fact that it took the mortgage with constructive notice of Douthit's lien.
We must decide whether the Court of Civil Appeals was correct in its reliance upon this rule of law to the exclusion of the express language found in the mechanic's lien statute. We hold that the court was incorrect.
Discussing the accepted rules of statutory construction in Alabama, this Court in Mazel v. Bain, 272 Ala. 640, 642-43, 133 So. 2d 44, 46 (1961), said:
Guided by this standard, we have no trouble finding that the Legislature clearly intended to give a mechanic's lien a preference over subsequent mortgages. Section 35-11-211 expressly states that "[s]uch lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or improvement...." (Emphasis added.)
*555 The rule in Alabama, consistent with our status as a "title" state with respect to mortgages, is that a mortgagee, acquiring the estate as security for a contemporaneous debt, is also a purchaser. Thames & Co. v. Rembert's Adm's., 63 Ala. 561 (1879). Regardless of whether the mortgagee has a dual status, the statute clearly states that a mechanic's lien has priority over all mortgages created subsequent to the acts giving rise to the lien. Any other result would be in direct conflict with the express terms of the statute and would hardly be consistent with the policy of the statute "to secure to the materialman and laborer a just reward of his labor and material." Floyd v. Rambo, 250 Ala. 101, 104, 33 So. 2d 360, 362 (1948).
Therefore, we give effect to the express terms of § 35-11-211 and hold that Central Bank does not take free of the lien.
Finally, we recognize, as did the Court of Civil Appeals in its original opinion in this case, the difficulty of enforcing Douthit's lien; however, we also agree with that court's conclusion that the matter of enforcement is not before us and that that question must be addressed by the trial court upon remand.
The judgment of the Court of Civil Appeals is affirmed in part, and reversed in part, and the cause remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.
EMBRY and ADAMS, JJ., concur in part and dissent in part.
TORBERT, Chief Justice.
Appellant, Douthit, asks us to decide the issue of what happened to his lien when the prior mortgagee, Aldridge, foreclosed on the property. In our original deliverance we did not address the issue because we believed it to be a matter of enforcement which should first be addressed by the trial court upon remand. However, the Court of Civil Appeals had addressed the question and we now deem it appropriate to also address it.
The Court of Civil Appeals correctly held that the "lien and rights of the lienholder are limited to the extent of the right, title and interest of the owner with whom he contracted." Douthit v. Wilks, 480 So. 2d 544 (Ala.Civ.App.1984) (quoting Staley v. Woodruff, 257 Ala. 571, 60 So. 2d 384 (1952)). That court also correctly held that the lien extended to the right, title, and interest of the Wilkses in the property at the time of the commencement of work. At that time the Wilkses owned the equity of redemption. Subsequently the prior mortgage was foreclosed and the Court of Civil Appeals seemed to say that because Douthit did not perfect the lien until after foreclosure "there remained only a statutory right of redemption available to Douthit to attach his lien." 480 So. 2d at 546. We believe the Court of Civil Appeals erred in this aspect of its decision.
The lien attached at the time the work on the house began, Lily Flagg Building Supply Co. v. J.M. Medlin & Co., 285 Ala. 402, 232 So. 2d 643 (1970), subject, however, to being lost if not perfected. Code 1975, § 35-11-213. In Staley the mortgagee, Staley, foreclosed on the mortgage after a materialmen's lien had attached and then sold the property to a third party. With respect to the transactions which took place after the lien attached, this Court said:
Staley, 257 Ala. at 574, 60 So. 2d at 386.
Therefore, the Court of Civil Appeals erred in holding that the lien attached to the Wilkses' statutory right of redemption upon foreclosure. The lien attached to the equity of redemption, because *556 that was the extent of the Wilkses' title at the time the lien attached. The subsequent transactions did not affect the rights of Douthit. The only remaining issue, which we have addressed in our original deliverance, is who has priority with respect to any proceeds upon the enforcement of the lien.
APPLICATION OF APPELLANT GRANTED; APPLICATION OF APPELLEES DENIED; OPINION EXTENDED.
MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.
ADAMS, J., concurs in part and dissents in part.
ADAMS, Justice (concurring in part, dissenting in part).
I concur in that portion of the majority's opinion which holds that the Morgans were bona fide purchasers for value, without notice, even though they acquired actual notice of the mechanic's lien prior to full payment of the contract purchase price, but I dissent as to that portion of the opinion which holds that Central Bank's mortgage does not have priority over the mechanic's lien because the bank had constructive notice of it, thus, disallowing the bank to stand in the shoes of the Morgans, who were bona fide purchasers for value.
Once again, we have departed from our older precedents, seemingly without substantial reason to do so. See Gibson v. Henderson, 459 So. 2d 845 (Ala.1984); Durant v. Hamrick, 409 So. 2d 731 (Ala.1982). I know of no field of law in which the doctrine of stare decisis is more important than the real property field.
Prior to our decision in this case, Alabama followed the general rule that a purchaser (and this includes a mortgagee) who purchases from a bona fide purchaser for value receives all the protection of a bona fide purchaser for value, even though such a purchaser may have constructive or actual notice of a defect in the title to the conveyed property. This has been the rule in Alabama as far back as Wilkinson v. Solomon, 83 Ala. 438, 3 So. 705 (1888). This rule was followed in Jefferson County v. Mosley, 284 Ala. 593, 226 So. 2d 652 (1969), and Barron v. Hughes, 202 Ala. 207, 80 So. 29 (1918).
Not only can the purchaser for value enjoy the property free from an adverse claim of which he had no notice at the time of his purchase, but he may also transfer his rights to others, and the fact that the secondary purchaser had notice is immaterial, so that a secondary purchaser with notice who purchases from a purchaser without notice, would have all the rights of the latter. The rule is based on a widely held policy that favors the free alienability of property interests.
77 Am.Jur.2d Vendor and Purchaser, § 718 (1975). See, also, 8 Thompson, Real Property, § 4479 (1940); Tiffany, Real Property, § 1307 (3d ed. 1939).
This rule is consistent with our rule that a timely filed mechanic's lien does not relate back to the time of performance of labor so as to be enforceable against intervening purchasers who purchase without actual or constructive notice of the mechanic's lien. Guaranty Pest Control, Inc. v. Commercial Investment & Development Corp., 288 Ala. 604, 264 So. 2d 163 (1972); Grimsley v. First Avenue Coal & Lumber *557 Co., 217 Ala. 159, 115 So. 90 (1928); Martin v. Clarke, 154 Ala. 425, 46 So. 232 (1908). This rule was modified in Starek v. TKW, Inc., 410 So. 2d 35 (Ala.1982), giving a mechanic an absolute priority over subsequent purchasers during the recording period if the transaction involved construction of a new structure. This Court imposed constructive notice on all purchasers of new structures during the statutory period for the filing of a mechanic's lien. The original rule was retained as to existing structures.
The rule followed in the present case only allows a mortgagee, who is also a secondary purchaser from a primary purchaser that purchased the mortgaged property without actual or constructive notice of the lien of the mechanic, to assume and assert all of the rights of the primary purchaser-vendee. This rule allows this result whether the secondary purchaser be mortgagee or non-mortgagee. The priority given to the secondary mortgagee-purchaser is recognized merely to protect the right of the primary purchaser, who is entitled to hold and enjoy the property free from the mechanic's lien and should have an equal right to sell the property free from the lien. The secondary mortgagee-purchaser is not being favored by virtue of this status as a purchaser, but is being favored in order to protect the primary purchaser's right to sell the property free from the mechanic's lien.
This rule does not grant to the mortgagee-purchaser the absolute status as a purchaser in every instance. It is only when there is an intervening bona fide purchaser without notice from whom the secondary mortgagee-purchaser takes his interest, that this limited priority is recognized. The mortgagee-purchaser cannot assert innocent purchaser status, on its own account, to defeat the mechanic's statutorily recognized lien. Clearly, such a holding would circumvent the clear import of the lien statute. For example, a homeowner sells his improved property. The homeowner has failed to pay the contractor for the improvements to the property. The buyer purchases the home without actual or constructive notice of the previous improvements performed on the home. The buyer, as an innocent purchaser, for value, without notice, takes free of any mechanic's lien not perfected at the time of purchase. If the buyer gets a loan for the purchase of the home and secures that loan with a mortgage, the mortgagee can interpose the buyer's defense to the mechanic's lien. The mortgagee could assert the buyer's rights regardless of the mortgagee's actual or constructive notice of the lien.
The mortgagee-purchaser could assert the rights of the buyer only if the buyer himself were without actual or constructive notice of the lien at the time of his purchase. In the case of a new home, the mortgagee would never prevail, because the initial purchaser is held to be on constructive notice throughout the permissible recording period of the mechanic's lien. See Starek v. TKW, Inc., supra. In the case of an existing structure, the facts of each case would determine whether the initial purchaser had actual or constructive notice of the lien.
In a second example, if a homeowner contracts, but fails to pay, for work performed on his home, and the homeowner gives a mortgage prior to the perfection of a lien by the contractor for his work, the mortgagee would not be afforded a priority ahead of the lienholder. The homeowner would be on actual notice of the lien and the mortgagee would derive no right from the homeowner that would give him priority ahead of the holder of the mechanic's lien. The mortgagee is given no priority as a primary purchaser. This conclusion is supported by the lien statute. This rule would only rarely allow a subsequent mortgagee priority over a mechanic or materialman, and this limited exception is consistent with previous holdings of this Court. | September 13, 1985 |
52808d72-a0e7-4451-b901-4df88c852993 | Advertiser Co. v. Hobbie | 474 So. 2d 93 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 93 (1985)
The ADVERTISER COMPANY, Lawrence McConnell, and Nancy Davis
v.
Walker O. HOBBIE, et al.
84-508.
Supreme Court of Alabama.
June 28, 1985.
*94 Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellants.
J. Knox Argo of Argo, Enslen, Holloway & Sabel, Montgomery, for appellees.
PER CURIAM.
This is an appeal from a declaratory judgment action brought by the appellants, the Advertiser Company, d/b/a the Alabama Journal, and Lawrence McConnell and Nancy Davis, employees of the Advertiser Company, to have the Montgomery County Circuit Court declare that the appellees, Walker O. Hobbie, Probate Judge of Montgomery County, and the Montgomery County Commission, "may reclaim the official registration lists of the last general election from the voting machines in Montgomery County and make those records available to the [appellants] for inspection." The circuit court denied the relief sought by appellants.
The registration lists that are the subject of the appellants' declaratory judgment action are those lists provided for in Code 1975, § 17-4-130 (Cum.Supp.1983). That section provides:
Election officials use the registration lists at issue to ensure that all persons voting in a precinct are registered to vote in that precinct. As eligible voters present themselves at the polling place, and identify themselves, their names are marked on the registration list. Following an election, the general practice has been to lock the registration lists in the voting machines and destroy the lists when the machines are reopened to be reset for the next election.
The appellants have made several requests of the appellees to open to public inspection the registration lists that are currently stored in locked voting machines in Montgomery County. To date, appellees have refused to comply with appellants' requests, contending that to do so would be unlawful, specifically that doing so is proscribed by Code 1975, § 17-7-17. We emphasize, however, that appellants do not seek access to the list of all registered voters that is published in a newspaper of general circulation prior to an election, but, rather, appellants seek access after an election, to the list of registered voters of a particular precinct which identifies those persons who presented themselves at the polling place to vote.
Section 17-7-17 provides:
Appellants contend that the election laws of Alabama pertaining to registration lists are confusing and outdated, and appellants set forth several reasons in support of their contention that the subject lists should be available for public inspection. Appellants contend that by making the registration lists available to the public, voter fraud will be discouraged, voter lists will be easier to purge, and public disclosure of the names of registered voters not voting may in fact encourage voting.
Regardless of the validity, or invalidity, of appellants' reasons for making the lists available for public inspection, the rule in this case, as in all cases of statutory interpretation, is that the court must ascertain and give effect to the intent of the legislature in enacting the statute. Wright v. Turner, 351 So. 2d 1 (Ala.1977); Locke v. Wheat, 350 So. 2d 451 (Ala.1977). If possible, such intent must be gathered from the language of the statute itself, and only when the language of the statute is ambiguous or uncertain will the court resort to considerations of fairness or policy to ascertain the legislature's intent. Morgan County Board of Education v. Alabama Public School and College Authority, 362 So. 2d 850 (Ala.1978).
We think it obvious that a list of the names of all the registered voters in a precinct is transformed into a "list of the persons voting" when, after an election, that list has been so marked as to identify every voter in the precinct who presented himself at the polling place to vote. Moreover, appellants, in effect, concede that the registration lists they seek are in fact "lists of the persons voting." In their brief, appellants argue that "the only information that can be gleaned from an official registration list would be the names of those persons who presented themselves to vote and the names of the persons in that precinct who are registered to vote but who did not present themselves to vote," and that if the Board of Registrars "retained such information, it could determine those elections in which a voter did or did not vote." (Emphasis added.) (Brief for appellants, pp. 4-5).
The plain meaning of § 17-7-17 can be gleaned from its words; therefore, the statute should be construed in accordance with that meaning. Howard v. Burton, 470 So. 2d 1176 (Ala.1985); Mobile County Republican Executive Committee v. Mandeville, 363 So. 2d 754, 757 (Ala. 1978). We hold that because the registration lists sought by appellants are lists of the persons voting, within the meaning of § 17-7-17, the appellants are not entitled to the relief sought. The constitutionality of § 17-7-17 was not at issue in this case.
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. | June 28, 1985 |
029539b2-a9f3-45ee-831b-6236529f9b2d | Johnson v. Washington | 474 So. 2d 651 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 651 (1985)
Percy JOHNSON
v.
Ellarine WASHINGTON and Erielene Washington.
83-1379.
Supreme Court of Alabama.
June 28, 1985.
*652 Edward Massey, Jr. of Clay, Massey & Gale, Mobile, for appellant.
Dennis J. Knizley of Alexander & Knizley, Mobile, for appellees.
FAULKNER, Justice.
This is an appeal from a judgment in favor of lower property owners against an upper property owner, for nuisance, trespass, and interfering with and channeling the natural drainage of surface water.
Plaintiffs Ellarine and Erielene Washington brought suit against Percy Johnson, Dr. Walker LaFlore, and Eleanor Townsend for trespass and nuisance for acts by defendants which allegedly caused water, red dirt, sand, and other debris to enter and cause damage to plaintiffs' property. The Washingtons are lower landowners, and the defendants own property naturally situated above and behind the plaintiffs' lot.
Mr. Washington testified that he purchased his home in 1970 and had no problem with surface water runoff or other intrusions onto his property until construction of a subdivision behind his property. Sometime in 1979, construction began on Johnson's property. Allegedly as a result of that construction, and the change in the natural topography of the land, the Washingtons began to have serious problems with surface water runoff and red dirt coming onto their land and causing flooding and damage to their home. Additionally, the construction of Mrs. Townsend's home allegedly caused an increase in the water runoff. As a result, the Washingtons claimed that the value of their home decreased by approximately $12,000.00.
The trial court granted a motion for directed verdict in favor of Dr. LeFlore. The jury returned a verdict in favor of Eleanor Townsend. A separate verdict was returned against Percy Johnson for $12,000.00.
After his motion for JNOV or new trial was denied, Johnson appealed, raising two issues: (1) whether a verdict should have been directed in his favor under the "channelization theory" and (2) whether the trial court erred in failing to charge the jury on the specific type of "substance" or "foreign matter" necessary to support a trespass claim.
Upon review of all the evidence, we affirm.
Johnson initially contends that the evidence did not justify sending the case to the jury on the theory of an upper proprietor channeling surface water onto a lower proprietor's land.
Although it was not specifically set forth in the Washingtons' complaint, the trial judge properly charged on, and allowed the jury to consider, the issue of the common law right of a lower property owner not to be injured by the interference of an upper property owner with the natural drainage of water onto the lower property. *653 Sargent v. Lambert Construction Co., 378 So. 2d 1153, 1155 (Ala.Civ.App.1979).
Historically, in cases involving diffused surface water, this Court has recognized two broad general rules: The civil law rule, and the common law or common enemy rule. Initially, the common law rule prevailed in incorporated cities and towns, and in rural areas the civil law rule obtained. Mitchell v. Mackin, 376 So. 2d 684 (Ala. 1979).
The civil law rule, in general, provides that land is subservient to the natural flow of surface water. Because water naturally seeks a lower level, the lower landowner may not disrupt the flow to the upper landowner's detriment. See e.g. Vinson v. Turner, 252 Ala. 271, 40 So. 2d 863 (1949).
The common law rule, in effect, provides that surface water is the "common enemy" and every landowner has the right to take any necessary measures to protect his own property, regardless of the consequences to his neighbor. See Vinson v. Turner, supra; City of Mountain Brook v. Beatty, 292 Ala. 398, 295 So. 2d 388 (1974).
The common law rule was significantly modified in Kay-Noojin Development Co. v. Hackett, 253 Ala. 588, 45 So. 2d 792 (1950), wherein this Court spoke of the liability of an upper proprietor who channels surface water onto the property of a lower proprietor, when it otherwise would have been scattered and diffused, and by so doing causes damage to the lower proprietor. The court said, "Such liability of the upper proprietor is now said not to be affected by the question of whether the area is within an incorporated town or city." This rule continues to be recognized in Alabama. See City of Mountain Brook v. Beatty, 292 Ala. 398, 295 So. 2d 388 (1974); Mitchell v. Mackin, 376 So. 2d 684 (Ala.1979); Sargent v. Lambert Construction Co., 378 So. 2d 1153 (Ala.Civ.App. 1979).
The evidence in the instant case indicates that the Washingtons never had any water problem until after Johnson began construction on his property. Mr. Goff, a civil engineer, testified that he inspected the property and calculated that the storm water runoff onto the Washingtons' property had been increased by at least fifty percent as a result of the construction. The engineer also testified that removal of underbrush and trees which naturally absorb the water, coupled with the construction of Johnson's driveway, caused the surface water to be channeled directly onto the Washingtons' property, rather than to be scattered and diffused over a larger area. There was also testimony that Johnson had changed the grade of his property during construction, although he did not change the natural contour or slope of the hill.
Based upon the evidence at trial, the trial court was justified in submitting the channelization issue to the jury for their factual determination.
Johnson also contends that the trial court's oral charge on the issue of indirect trespass was erroneous. The trial court, in part, instructed the jury as follows:
This charge essentially follows the elements which a plaintiff must prove in order to recover for an indirect trespass. W.T. Ratliff Co. v. Henley, 405 So. 2d 141, 145 (Ala.1981); Borland v. Sanders Lead Co., 369 So. 2d 523, 529 (Ala.1979). In the instant case, the evidence indicates that surface water, red dirt, sand, and other debris entered onto the plaintiffs' land. *654 Consequently, we find that the trial court committed no error in giving that charge, or in failing to specify the type of substance or foreign matter necessary to support the trespass claim.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | June 28, 1985 |
1207c7cb-6289-4428-969e-69eff6e1ad90 | Crosby v. Avon Products, Inc. | 474 So. 2d 642 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 642 (1985)
Roosevelt CROSBY
v.
AVON PRODUCTS, INC.
83-1299.
Supreme Court of Alabama.
June 28, 1985.
*643 Joseph J. Boswell, Mobile, for appellant.
William K. Thomas of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.
FAULKNER, Justice.
This is an appeal from a judgment of dismissal. The sole issue raised by the appellant is whether the trial court abused its discretion in setting aside a default judgment. We affirm.
Crosby suffered an allergic reaction to cologne which was manufactured by Avon. He brought an action against Avon based on the Alabama Extended Manufacturer's Liability Doctrine and for breach of implied warranty of merchantability. On April 22, 1982, Crosby attempted to serve Avon by having a process server deliver a copy of the summons and complaint to the offices of a firm called Answering-Mobile. Prior to February 15, 1982, Answering-Mobile had provided telephone answering services for Avon. Ina Shaw, the Answering-Mobile employee who was handed the summons and complaint by the process server, testified as follows:
No answer to the complaint was filed. After entry of a default, Crosby presented evidence to the court, and Circuit Judge Elwood Hogan assessed plaintiff's damages at $250,000.00.
Avon had no knowledge of the lawsuit until it was served with notice of a garnishment. Avon filed a motion seeking to have the default judgment set aside on the grounds that the judgment was void because there had been no service of process on it and because the $250,000.00 award was excessive. Rule 60(b)(4) and (6), A.R. Civ.P. After a hearing on the motion, the trial court set aside the default judgment. Crosby filed a notice of appeal to this court. On motion of the defendant this Court dismissed the appeal for lack of a final judgment. Crosby v. Avon Products, Inc., 446 So. 2d 75 (Ala.1983). The trial court admonished Crosby to attempt to serve Avon at some location other than the answering service's office. Despite the trial court's directive, Crosby never again attempted to serve Avon. Due to the plaintiff's refusal to attempt to obtain service on Avon, the trial court dismissed Crosby's action for failure to prosecute the case. Crosby again filed a notice of appeal.
A motion for relief from a judgment under Rule 60(b) is addressed to the sound discretion of the trial court. Frazier v. Malone, 387 So. 2d 145, 150 (Ala.1980). See Committee Comments, Rule 60(b), A.R. Civ.P. Moreover, appellate courts are especially reluctant to reverse a trial court's decision to set aside a default judgment and permit a trial on the merits. Fisher v. *644 Bush, 377 So. 2d 968 (Ala.1979). It is axiomatic that the law favors fair trials on the merits of cases. Cockrell v. World's Finest Chocolate Co., 349 So. 2d 1117 (Ala. 1977).
It is difficult to imagine a more compelling case for setting aside a default judgment than existed under these facts. It is undisputed that Avon was never informed of the pendency of the action before a default was taken. Assuming, arguendo, that the answering service qualified as Avon's agent for purposes of service of process during the term of their agreement, it is undisputed that Avon had terminated its relationship with the answering service and, therefore, Answering-Mobile was not Avon's agent at the time of Crosby's attempted service. Moreover, there was evidence from which the court could have concluded that the special process server hired by Crosby had actual knowledge that the answering service no longer represented Avon at the time it was served. Although the company had no office in Mobile, it is a nationwide concern with offices throughout the country whose locations could have easily been ascertained by reasonable diligence. Its address is listed as "New York, New York 10019" on all its products, including, presumably, the bottle containing the allegedly injurious substance. The judgment was clearly excessive. Avon acted with all due speed to have the judgment set aside once it was apprised of the action, and the plaintiff was in no way prejudiced by setting aside the default.
Despite the trial court's directive to Crosby to attempt to serve Avon and the court's admonition that failure to attempt to obtain service would result in a dismissal of the action, plaintiff refused to attempt service. Failure of a plaintiff to attempt to obtain service over the defendant within a reasonable time may amount to a failure to prosecute the action, warranting a dismissal of the case. Rule 41(c); State v. Horton, 373 So. 2d 1096 (Ala.1979).
The trial court's order dismissing the plaintiff's action is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | June 28, 1985 |
770355c7-660e-49eb-b1a9-f75bc8d84ca6 | Bishop v. Poore | 475 So. 2d 486 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 486 (1985)
Bennie L. BISHOP
v.
Hershel POORE, Jr.
83-1005.
Supreme Court of Alabama.
July 12, 1985.
Rehearing Denied August 23, 1985.
John E. Rochester of Thompson & Rochester, Ashland, for appellant.
G. Coke Williams of Williams, Williams, Norton & Long, Anniston, for appellee.
EMBRY, Justice.
This appeal is from a jury verdict in favor of the plaintiff, Herschel H. Poore, *487 Jr., in the sum of $65,000 against the defendant, Bennie L. Bishop, for personal injury and property damage. The litigation arose out of a collision between defendant's automobile and plaintiff's motorcycle on Alabama Highway 21 in the City of Oxford. Two issues are presented for decision in this appeal.
In his complaint, plaintiff alleged that defendant "negligently or wantonly caused" defendant's automobile to collide with plaintiff's motorcycle. The first issue for review is whether the trial court erred in refusing to strike the allegation of wantonness. Defendant contends there was insufficient evidence of wantonness for that issue to go to the jury.
Wantonness is the doing of some act or omission to do some act with reckless indifference to the knowledge that such act or omission will likely or probably result in injury. Gunnells v. Dethrage, 366 So. 2d 1104 (Ala.1979). Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger. Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976). Knowledge need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact of actual knowledge is a legitimate inference. Lankford v. Mong, 283 Ala. 24, 214 So. 2d 301 (1968).
In considering the question of the sufficiency of the evidence of wantonness to be submitted to the jury, this court must accept the adduced evidence most favorable to the plaintiff as true, and indulge such reasonable inferences as the jury was free to draw from the evidence. Jackson v. Cook, 275 Ala. 151, 153 So. 2d 229 (1963). A wantonness count should go to the jury if there is any evidence to support a finding of wantonness. See Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797 (1972).
The evidence most favorable to the plaintiff is the following: On the evening of 11 November 1982, defendant and his family were returning to their home in Lineville from a visit to Quintard Shopping Mall in Oxford. After stopping at a service entrance stop sign connecting the mall with Highway 21, defendant proceeded across the northbound double-lane of the highway to get to the southbound lane of traffic. At the same time, plaintiff was travelling north in the right lane on his motorcycle. The two vehicles collided, causing damage to plaintiff's person and his motorcycle.
The evidence adduced at trial showed the accident occurred at a dangerous intersection, with no traffic controls to guide a driver's judgment. The evidence also showed that, although the accident occurred after nightfall, the highway was well-lit by mercury vapor lights and there were no obstructions to visibility. In addition, plaintiff's motorcycle projected a normal beam from its headlight, which should have been visible to the defendant.
Under these circumstances, the evidence that defendant never looked in the direction of the plaintiff arguably provided some evidence of wanton conduct on the part of the defendant. His failure to look could be regarded as reckless indifference to the knowledge that such omission would likely result in injury to another. Some evidence of wantonness was all that was necessary for the issue to go to the jury. Therefore, no error was committed by the trial court in overruling the motion to strike.
The second issue for review is whether the trial court erred in permitting plaintiff to testify as to loss of earning capacity where plaintiff was not actually working nor receiving wages at the time of the accident.
Plaintiff claimed that as a proximate result of the defendant's negligence or wantonness he was disabled from his employment and would be unable to perform in his chosen line of work in the future. He requested compensation for loss of earning capacity as one element of his claim of *488 damages. Defendant asserted this loss could only be speculative in nature because plaintiff was not actually working at the time of his injury. He argued that presentation to the jury of evidence regarding loss of earning capacity would be improper. His objection at trial to the admissibility of this evidence was overruled.
A complaint alleging permanent injury is sufficient to imply impairment of earning capacity. Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403 (1927). Evidence of average earnings is admissible as affording a basis for the estimate of damages in such cases. Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 268 So. 2d 725 (1972).
Plaintiff alleged permanent injury in his complaint, and produced evidence to support such injury. He also presented specific data detailing his usual past earnings. In light of this evidence, we cannot say the jury was without guide in awarding damages in this case. Therefore, we find no error by the trial court with regard to its ruling as to the admissibility of the evidence.
For the stated reasons, the judgment below is due to be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., dissents.
TORBERT, Chief Justice (dissenting).
I must respectfully dissent on two grounds. First, there is not a scintilla of evidence supporting the allegation of wantonness. Second, the damages issue concerns loss of earnings, not loss of earning capacity.
There is nothing in the evidence tending to show that the defendant was guilty of wanton conduct. The evidence in dispute is over whether the defendant looked in the direction of the oncoming plaintiff or not. This was enough to submit the issue of negligence to the jury, but this could not support a finding of wantonness. "Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result." Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala.1980) (emphasis added). I cannot see how a failure to look in the direction of an oncoming motorcycle can amount to a conscious and intentional omission so as to be wanton conduct. In fact, this Court has held that where a woman failed to look in her rearview mirror, veered her car to the left and then turned it to the right without giving the proper signals and thereby turned into the path of a motorcycle following her and caused a collision, she could not be found guilty of wantonness, because she had not been shown to have had knowledge of the presence of the motorcycle. Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448 (1965). In the present case, the trial court should have directed a verdict for defendant on the claim of wantonness.
As to the issue of measuring damages, the majority discusses loss of earning capacity, when the issue in question is loss of earnings and the trial court never gave the jury instructions for the awarding of damages for loss of earning capacity. The trial court instructed the jury on how to measure loss of earnings. The defendant contends that there can be no award for loss of earnings when the plaintiff was unemployed at the time of the accident, and the plaintiff contends that there can be such an award because at the time the accident occurred he was anticipating employment.
There was no evidence presented as to the plaintiff's loss of earning capacity. There was no evidence concerning plaintiff's future earning capacity, nor was there any evidence showing that the plaintiff even had a permanent injury. Plaintiff's doctor testified only that permanent impairment was a possibility. What this Court recently set forth in Carnival Cruise Lines, Inc. v. Snoddy, 457 So. 2d 379 (Ala.1984), is appropriate in this case:
457 So. 2d at 382-83. The plaintiff's testimony that he used to make about $500.00 a week provided no means for the jury to correlate the physical disability with impaired earning capacity. Without any evidence as to the plaintiff's degree of impairment or life expectancy, any award for loss of earning capacity would be based on pure speculation.
The majority opinion never touches the issue of loss of earnings; instead, the majority upholds the jury's award on grounds that the jury was never instructed on. This Court needs to address the issue of loss of earnings in determining whether there was any evidence supporting the jury's award. | July 12, 1985 |
18da0528-4a3d-4daa-a2a7-146d1f8716e5 | Tripp v. Humana, Inc. | 474 So. 2d 88 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 88 (1985)
Marilyn TRIPP and Nathanial Tripp
v.
HUMANA, INC., d/b/a Coffee General Hospital; Coffee General Hospital, et al.
84-149.
Supreme Court of Alabama.
June 28, 1985.
*89 Tom R. Roper and Richard W. Bell of Bell & Associates, Pelham, for appellants.
William L. Lee, III and Peter A. McInish, Dothan, for appellees.
JONES, Justice.
This is an appeal from a summary judgment. The sole issue presented is the propriety of summary judgment in light of the facts before the trial court as gleaned from the complaint, Appellees' answer, Appellants' answers to interrogatories and deposition questions, and an affidavit offered by Appellants in opposition to summary judgment.
Appellant Marilyn Tripp was admitted to Coffee General Hospital for the delivery of her baby. During that hospitalization, Mrs. Tripp was given three injections (one in each thigh and one in her right hip) by the nursing staff. On the day she was discharged, Mrs. Tripp noticed a red spot at each injection site. During the next two weeks, Mrs. Tripp experienced a gradual worsening of the redness at the injection sites, a fluctuating fever (which finally reached 104°), and stiffness and soreness in her legs. She was taken to the emergency room at the hospital on the Fort Rucker military installation and then transferred to the hospital at Keesler Air Force Base in Biloxi, Mississippi, for treatment of severe gangrene infections in her arms and legs. The damage done to Mrs. Tripp's legs as a result of the infection necessitated both surgery to remove affected tissue and corrective plastic surgery, leaving permanent scarring and physical symptoms.
Mr. and Mrs. Tripp filed a complaint charging Humana, Inc., and its subsidiary, Coffee General Hospital, Mrs. Tripp's physician,[1] and a nurse (Appellee Zeller) with negligent failure to provide Mrs. Tripp with reasonable medical care. Mr. Tripp also alleged that Appellees' negligence in providing medical services to his wife resulted in a loss of consortium to him.
Appellees Humana, Coffee General, and Zeller, by their answer, denied all the material allegations of the complaint and denied *90 any liability to either Mr. or Mrs. Tripp. Mrs. Tripp's answers to interrogatories propounded by her doctor, prior to his dismissal, contained allegations that Mrs. Tripp's injuries were the result of an infection caused by negligent medical practice, specifically, the lack of sterile techniques and the lack of proper prescription medicine. Mrs. Tripp also testified, in deposition, that she remembers receiving the three injections while hospitalized at Coffee General and that she noticed the red spots at the injection sites the day she was released.
Appellees filed a motion for summary judgment based on the evidence then before the trial court. In addition to their own testimony, Mr. and Mrs. Tripp based their opposition to summary judgment on the affidavit of Joyce Chappelear, a registered nurse, who had reviewed Mrs. Tripp's medical records and had read the depositions of Mr. and Mrs. Tripp. Based upon her education and training and upon her review of the records and testimony, Ms. Chappelear stated her professional opinion:
"The purpose of the motion for summary judgment is to test the sufficiency of the evidence to determine if any real issue exists." Garrigan v. Hinton Beef and Provision Co., 425 So. 2d 1091, 1093 (Ala.1983). The fundamental principles of law controlling both the propriety of the trial court's determination as to the sufficiency of the evidence on a motion for summary judgment and our review of that determination on appeal are the same, and are so often stated as to be axiomatic. The party moving for summary judgment bears the heavy burden of clearly showing: 1) That there is an absence of a genuine issue of any material fact; and 2) that, because there is no factual controversy, the movant is entitled to a judgment as a matter of law. The facts before the trial court, however, must be viewed in a light most favorable to the nonmoving party. The nonmoving party is entitled to any reasonable inference to be drawn from those facts before the trial court; and, if such inference presents even the slightest issue of material fact, there is a question for determination by a jury and summary judgment cannot be granted. See Ingram v. Akwell Industries, Inc., 406 So. 2d 897 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So. 2d 949 (Ala.1981) (and authorities cited therein); Coggin v. Starke Brothers Realty Co., 391 So. 2d 111 (Ala.1980).
Moreover, this appeal is from a summary judgment entered in an action wherein the Plaintiff's complaint alleged negligence on the part of Appellees. As the Tripps point out to this Court, summary judgment is rarely appropriate in a case involving a claim for negligence. Because of the nature of negligence actions, issues of fact are almost invariably involved (e.g., reasonableness, proximate causation, and foreseeability)issues which are not easily established to a legal certainty and the resolution of which, as we noted above, is a prerogative reserved to the jury. See Searight v. Cummings Trucking Co., 439 So. 2d 81 (Ala.1983); Hilburn v. Shirley, 437 So. 2d 1252 (Ala.1983); Rivers v. Stihl, Inc., 434 So. 2d 766 (Ala.1983); Ingram v. Akwell Industries, Inc., supra.
We find that the nurse's affidavit testimony was sufficient to supply inferences from which factual conclusions may be drawn and upon which a triable issue of material fact was created. The testimony of Mrs. Tripp as to the immediacy of the onset of the infection, the sites at which the infection began (the injection sites), and the symptoms that followed, coupled with the professional opinion of Ms. Chappelear, yields an inference of cause and effectan issue of factual proportions tending to prove the Tripps' allegation of negligence. Appellees, therefore, have not reduced the issues of this case to nonfactual questions which would entitle them to a judgment as a matter of law.
Admittedly, Ms. Chappelear's affidavit, in substantial part, is conclusionary, and the jury may or may not accept her opinion when the weight and credibility of her testimony are tested by cross-examination at trial. This, however, is not a determination to be made by the trial court. Grimes v. Massey Ferguson, Inc., 355 So. 2d 338 (Ala. 1978). The test for the propriety of a summary judgment is whether any inference is to be drawn from the evidence so as to make out a claim. Here, Mr. and Mrs. Tripp's evidence meets the test and does create that requisite issue of material fact for jury determination.
The judgment of the trial court, therefore, is reversed, and this cause is remanded for trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.
[1] The doctor was voluntarily dismissed by Appellants and, therefore, is not a party to this appeal. | June 28, 1985 |
46b0a1ed-ba89-4df2-8e94-f098ad9dd2f6 | Ex Parte Alabama State Tenure Com'n | 474 So. 2d 101 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 101 (1985)
Ex parte ALABAMA STATE TENURE COMMISSION.
(Re Donald DEBROW v. ALABAMA STATE TENURE COMMISSION).
83-1367.
Supreme Court of Alabama.
July 12, 1985.
James E. Simpson of Lange, Simpson, Robinson & Somerville, Birmingham, for petitioner.
J. Victor Price, Jr., Montgomery, for respondent.
William J. Baxley and Joel E. Dillard of Baxley, Beck, Dillard & Dauphin, Birmingham, for amicus curiae Alabama Educ. Ass'n.
Carl E. Johnson of Bishop, Colvin & Johnson, Birmingham, for amicus curiae The Jefferson County Bd. of Educ.
BEATTY, Justice.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
*102 TORBERT, C.J., concurs in the result.
MADDOX, J., not sitting.
TORBERT, Chief Justice (concurring in the result).
I concur in the quashing of this writ because of the recent decisions in Wooten v. Alabama State Tenure Comm'n, 421 So. 2d 1277 (Ala.Civ.App.1982), and Ex parte Hayes, 405 So. 2d 366 (Ala.1981).
In Wooten, the Court of Civil Appeals held that Code 1975, § 16-24-2(b), did not require that an instructor seeking tenure as a supervisor be reemployed for a fourth year in order to gain tenure. Moreover, in Ex parte Hayes, this Court held that even a non-tenured teacher has an expectancy of employment to the end of the school term and, therefore, "cannot be terminated before the year is out without the protection of procedural due process." 405 So. 2d at 371.
In other words, although Debrow had not completed three years of continuing service as a principal, he was nevertheless entitled to procedural due process before being transferred, by virtue of his expectancy of employment to the end of the school term in the position he held.
I do not agree that § 16-24-3 makes the provisions of § 16-24-9 and § 16-24-10 applicable in a case such as this. Debrow had not attained continuing service status at the time the Board took the action complained of here. Debrow was only entitled to procedural due process. | July 12, 1985 |
3943c4cc-94af-4adc-92e7-c6eb12ade8a6 | Mordecai v. Blue Cross-Blue Shield of Ala. | 474 So. 2d 95 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 95 (1985)
Arthur O. MORDECAI and Florence G. Mordecai
v.
BLUE CROSS-BLUE SHIELD OF ALABAMA, INC., a corporation.
84-166.
Supreme Court of Alabama.
July 3, 1985.
*96 Christopher Knight, Mobile, for appellants.
J. Edward Thornton, Mobile, for appellee.
MADDOX, Justice.
This is an insurance bad faith case, in which the trial court granted the insurer's motion for summary judgment.
In November 1982, Mrs. Florence R. Mordecai, wife of Arthur O. Mordecai, fell and broke her arm. Mrs. Mordecai was hospitalized for five days. Upon her discharge, Dr. Crotwell, Mrs. Mordecai's treating physician, prescribed twenty-four-hour medical care. He signed a "physician's plan of treatment" for Upjohn Healthcare Services, wherein he stated that either R.N.'s or L.P.N.'s were to do the following:
In the physician's report, Dr. Crotwell reported the following list of therapeutic services to be performed by the nurse:
During the period of Mrs. Mordecai's hospitalization and during the period of the nursing care, a contract of insurance was in effect between the Mordecais and Blue Cross-Blue Shield, appellee, for major medical insurance for "private duty nursing by a licensed professional nurse or a licensed practical nurse who neither is related to the member by blood or marriage nor regularly resides in the member's household." The coverage was for the "reasonable and customary fee for such services" and was "available to a member on the condition that the services ... are determined by the company to have been medically necessary."
The Mordecais made written claims to Blue Cross through an agent in the local office between December and January for a total sum of $4,596.16 for the private nursing care. Blue Cross paid $42.84 of these claims but denied the remainder.
The Mordecais filed a two-count complaint against Blue Cross. Count one alleged breach of contract for health insurance. Count two alleged that Blue Cross's failure to pay for the expenses of the continuous home-nursing care was a bad faith refusal to pay the claim, and for that failure to pay the Mordecais sought punitive damages. Blue Cross denied both counts, contending that the private duty nursing care was determined by Blue Cross to be medically unnecessary. Blue Cross moved for summary judgment on both counts, with a supporting affidavit of Dr. Stephen L. Stigler, in which he opined that, based on the following documents, the care rendered *97 to Mrs. Mordecai was not medically necessary and did not require skilled services of an L.P.N. or R.N.: (1) contract of insurance; (2) physician's plan of treat ment; (3) nurse's summary of private duty nursing; (4) Upjohn Healthcare Services progress notes; (5) "Guide for Assigning Responsibilities to Nursing Personnel"; (6) an interoffice memo from Dr. Stigler to Dianne Pyle; and (8) the medical regulations.
The Mordecais responded to the motion for summary judgment, relying on two letters and the deposition from Mrs. Mordecai's treating physician, stating that the skilled home nursing care was medically necessary; the affidavit of Zorina Ali Morris, one of Mrs. Mordecai's treating nurses; the affidavit of Arthur O. Mordecai; the answers to plaintiff's interrogatories; and all documents relied on by Blue Cross on its motion for summary judgment.
The trial court granted summary judgment in favor of Blue Cross on the bad faith claim but denied summary judgment on the contract claim. Both parties moved for entry of judgment pursuant to Rule 54(b), Ala.R.Civ.P., which was granted, and thus, the Mordecais appealed and Blue Cross cross-appealed. Blue Cross's cross-appeal, wherein Blue Cross alleged that the trial court erred in not granting summary judgment in its favor on the contract claim was dismissed [Jan. 14, 1985, 469 So. 2d 728]. Thus, the only issue for our consideration is whether the trial court erred in granting Blue Cross's motion for summary judgment on the claim for bad faith refusal to pay the claim.
The law applicable to the case at hand has been summarized in McLaughlin v. Alabama Farm Bureau Mut. Cas. Ins. Co., 437 So. 2d 86 (Ala.1983), where this Court opined:
"417 So. 2d at 183. Finally, in National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982), this Court held:
437 So. 2d at 89-90.
Here, as in McLaughlin, the existence of the contract is not in question and it is undisputed that Blue Cross intentionally refused to pay the entire claim. Thus, in McLaughlin, the Court was asked to determine whether there was a debatable reason for denying the claim. In this case, however, the Mordecais do not assert that there was an absence of a debatable claim under the facts as gathered by Blue Cross. Instead, the Mordecais contend that "the failure of Blue Cross to consider portions of the nurse's notes and to consult with the treating physician and nurses regarding the treatment constitutes an intentional failure to determine the existence of a legitimate or arguable reason to refuse to pay the claim." They argue that "any insurance company can look at only the facts it wants to see which are favorable, and ignore other facts which are unfavorable, and, based upon the favorable facts, make a determination that the claim should be denied." Specifically, the Mordecais contend that Blue Cross intentionally failed to contact Mrs. Mordecai's treating physician "to determine his reason for prescribing home nursing care for Mrs. Mordecai and that Blue Cross intentionally failed to contact any of the nurses to determine whether the notes and summaries accurately and adequately summarized the treatment provided."
The Mordecais further contend:
The evidence showed that Blue Cross accepted and evaluated documents supporting the claim. We reject the Mordecais' claim that Blue Cross was under a duty to do more than review the documents claimant submitted to it. Whether Blue Cross correctly determined that the home nursing care rendered to Mrs. Mordecai was not "medically necessary" can be tried in the breach of contract action still pending between these parties.
In summary, the Mordecais, in brief, state that "the terms of the contract which require Blue Cross to make a determination of medical necessity in each case where a claim is submitted to [it] under the contract carry with them a duty and obligation of fair dealing on the part of Blue Cross which extends beyond a mere review of nurses' notes as occurred in this case."
We recognize that we are reviewing a summary judgment, but we are satisfied from the record that the trial court had before it evidence showing that the movant was entitled to a summary judgment on the *99 bad faith claim. Rule 56, Ala.R.Civ.P., McLaughlin, supra.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
FAULKNER, J., recused.
EMBRY, J., not sitting. | July 3, 1985 |
a8b32ce6-1ee9-4f13-bd2c-8299753f60cc | Wal-Mart Stores, Inc. v. White | 476 So. 2d 614 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 614 (1985)
WAL-MART STORES, INC.
v.
Catherine Odean WHITE.
84-4.
Supreme Court of Alabama.
September 13, 1985.
*615 John S. Key and William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellant.
Jerry R. Barksdale and James D. Moffatt, Athens, for appellee.
MADDOX, Justice.
This is a slip and fall case. Plaintiff Catherine Odean White filed suit against defendant Wal-Mart Stores, Inc., alleging negligence and wantonness in the maintenance of its floor and negligence in failure to warn plaintiff of the known dangerous condition of its floor. After a trial on the merits, the jury found for Ms. White in the amount of $75,000. Wal-Mart appeals from a judgment based on that verdict.
On Saturday, May 28, 1983, it rained steadily throughout the day in Athens, Alabama. Ms. White had been shopping in several stores before she went to Wal-Mart sometime between 7:15 and 7:30 p.m. Upon entering one of Wal-Mart's front doors, she slipped and fell, landing on her left knee, and breaking her left leg.
Ms. White was wearing "flip-flops" or rubber-soled "shower shoes." She fell just inside the door. The only substance on the floor was fresh rainwater.[1] The floor was not muddy or gritty. Ms. White's own testimony is conflicting as to the amount of water on the floor, but at trial she finally agreed with her deposition testimony to the effect that the water was not "running," but was on the floor in "droplets" "It was just enough to be slick, I would say." She also testified that after falling, she stayed on the floor for a "good while" and that when she got home, her clothes were wet.
In spite of the rain, Wal-Mart had been very busy that Saturday due to a sale it was conducting. The customers had been tracking in water on their shoes all day, and when they opened the door, rain blew in. A stockboy testified that he had mopped up water from the area where Ms. White fell five or six times that day. He also testified that he had mopped the floor there again just minutes before Ms. White fell.
Mr. P. William Logan, a safety engineer, was qualified as an expert for plaintiff, and testified that on these facts in his opinion, Wal-Mart's failure to properly place mats inside the door, post an employee at the door, and put up caution signs in the area, all contributed to cause plaintiff's fall. Mr. Logan based his conclusion on his many years of experience as a loss control/loss prevention specialist.
Appellant Wal-Mart alleges that the trial court erred in: (1) not directing a verdict *616 for defendant, because these facts, as a matter of law, do not constitute negligence; and (2) admitting expert testimony on the issues of cause and due care.
Wal-Mart argues that on these facts the trial court should have directed a verdict in its favor and not permitted the case to go to the jury. Wal-Mart cites us to three of our prior slip and fall cases in support of its argument.
In Cox v. Goldstein, 255 Ala. 664, 53 So. 2d 354 (1951), plaintiff fell when just a "few steps" inside a dress shop. The evidence showed that it had been raining for several hours that day, and that when plaintiff arose from her fall, she had muddy water on her skirt and hose. Plaintiff alleged that defendant negligently maintained his store. The trial court disagreed and gave an affirmative charge for defendant. We, too, found that this evidence was insufficient as a matter of law to create a jury issue, and we affirmed the trial judge's giving of an affirmative charge for defendant. Mr. Chief Justice Livingston, writing for the Court, stated: "It is not the duty of persons in control of such passageways to keep a force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several obvious reasons unnecessary to mention in detail." 255 Ala. at 667-68, 53 So. 2d at 357.
In Gulas v. Ratliff, 283 Ala. 299, 216 So. 2d 278 (1968), plaintiff fell after taking just a couple of steps inside defendant's restaurant. The evidence showed that it was snowing and sleeting that day, and that there was melting snow and ice on the floor where plaintiff fell. Specifically, "[t]here were several spots of snow beside... [plaintiff] about as big as a silver dollar. These bits of snow were about ten to twelve in number. When she got up, there was some ice and dirty water on her coat that had the appearance of crushed ice. Her underclothing was damp where she had been sitting in ice. Her coat had some soil on it from dirty water and there was still some ice on her coat.... [T]here was no grease, oil, or other foreign substance, other than snow and water, on the restaurant floor." 283 Ala. at 300, 216 So. 2d at 279. This Court found that the trial judge erred in not giving an affirmative charge for the defendant. We said, "A fall caused by snow or rain is distinguishable from a fall resulting from some other object as in the usual slip and fall case.... [D]efendant, in the instant case, did not owe to the plaintiff wife a duty to keep a force of moppers to clear the floor of snow brought in by incoming customers." 283 Ala. at 303, 216 So. 2d at 281.
Most recently, in Terrell v. Warehouse Groceries, 364 So. 2d 675 (Ala.1978), we were presented with a plaintiff who fell in clear, non-muddy rainwater some 25 to 30 feet inside defendant's grocery store. The amount of rainwater was minimal and appeared to be due to customer traffic. The trial court directed a verdict for defendant. Plaintiff appealed to us, arguing that "to exempt storekeepers from a duty of reasonable care based upon a `force of moppers' rationale is inequitable since there are viable alternative methods of making a floor safe." Id. at 676. We disagreed. Mr. Chief Justice Torbert, writing for a unanimous Court, stated:
Because the evidence showed no unusual accumulation of rainwater or "other circumstances," *617 we affirmed the directed verdict in defendant's favor.
In the instant case, the rainwater had not accumulated in an unusual amount. The evidence showed that Ms. White fell just inside the door because the floor was wet with droplets of clear rainwater in an amount "just enough to be slick."
Nor does the evidence reveal "other circumstances" that would indicate negligence on Wal-Mart's part. Plaintiff attempted to make an issue out of Wal-Mart's failure to place the doormats flush with the doorstep. Doormat placement, however, does not constitute "other circumstances" which would defeat a directed verdict motion. Doormats are one of a conceivable number of safety measures that might be required upon a showing of unusual accumulations of rainwater or "other circumstances." Absent a showing of an unusual amount of rain water, or "other circumstances," Wal-Mart was under no duty to provide floormats.[2] Furthermore, absent a showing that the floormat in some way affirmatively caused the slip and fall (e.g. wrinkled surface; damaged backing; etc.), the floormat itself does not support a cause of action for negligence. Doormat placement, without more, is not negligence.
Thus, on these facts, where plaintiff alleges no design, construction, or condition abnormality, and where the evidence shows no unusual accumulation of rainwater and no "other circumstances," defendant was entitled to a directed verdict as a matter of law, this was not negligence.
The testimony of plaintiff's expert to the effect that Wal-Mart's safety precautions were inadequate does not alter our resolve or affect our holding that the instant facts, as a matter of law, do not constitute negligence. We turn now to a discussion of why this is so.
Wal-Mart argues that this expert's testimony was inadmissible because it concerned a matter of common knowledge. Indeed, "expert opinion testimony should not be admitted unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts. The opinion of the expert is inadmissible upon matters of common knowledge." C. Gamble, McElroy's Alabama Evidence § 127.01(5) (3d ed. 1977).
In Terrell, supra, at 677, we noted, "When it rains, surfaces naturally become more slippery than usual a fact with which a customer is sufficiently familiar." We do not think that since that pronouncement the average juror has become any less intelligent with respect to the effect of rain on floors. Accordingly, we hold that the admission of this expert's testimony as to the effect of the rainwater on Wal-Mart's floor, in the absence of any claim of design or construction or condition abnormality, was error. But, this concerns only part of the expert's testimony that part going to causation. We are still confronted with that part of the expert's testimony, the greatest part of it, that went to the issue of Wal-Mart's due care.
We acknowledge and endorse the statement of law set forth in 32 C.J.S. Evidence § 546(79)(1964):
Furthermore, we recognize that safety precautions, in some situations, may properly *618 be the subject of expert testimony. See e.g., First National Bank of Birmingham v. Lowery, 263 Ala. 36, 81 So. 2d 284 (1955); see generally, Annot., 62 A.L.R.2d 1426 (1958).
And, yet, "[w]here the facts and rules of law applicable thereto are plain, expert testimony which may lead to an exposition of methods of precaution which would transcend the legal duty of a party is inadmissible." 32 C.J.S., supra, at § 546(79). As discussed above, in slip and fall cases, we have already enunciated the standard of care for owners of buildings frequented by the public where the alleged negligence is merely rainwater on a non-defectively designed, or constructed, floor. In such a situation, we have held before, and hold again today, that absent an unusual accumulation or "other circumstances," the presence of rainwater on a floor is not a breach of due care. On these facts, as a matter of law, Plaintiff did not meet her burden of proof to sustain a cause of action. Thus, the testimony of plaintiff's expert to the effect that Wal-Mart failed to observe the proper and accepted safety precautions transcended Wal-Mart's legal duty as we have enunciated it. We hold that the trial court erred in allowing this expert to testify on the issue of Wal-Mart's due care. Cf. McDonald's Corp. v. Grissom, 402 So. 2d 953, 955 (Ala.1981) (expert testimony properly admitted where plaintiff's theory of liability "[did] not rest upon a charge that the defendants had allowed water to accumulate. She contended that ... the area in front of the door had become worn from traffic.... There was also evidence that this area was a different color from the rest, inferentially from spilled food").
To hold otherwise, and allow an expert in a slip and fall case to testify to a higher standard of care than the standard imposed by law, would be to permit the subversion of the legally imposed duty of due care, and render yet another small area of the law susceptible to a "battle of the experts." This we decline to do.
Because we find that, as a matter of law, the instant facts are insufficient to sustain a negligence cause of action, the trial court erred in denying defendant's motion for directed verdict. Therefore, the judgment based upon the jury verdict is due to be, and it hereby is, reversed.
REVERSED AND JUDGMENT RENDERED FOR DEFENDANT.
TORBERT, C.J., and JONES, ALMON, BEATTY and ADAMS, JJ., concur.
FAULKNER, SHORES and EMBRY, JJ., not sitting.
[1] Plaintiff does not allege, nor do the facts reveal, any design or construction abnormality of the floor.
[2] In Gulas, supra, 283 Ala. at 301, 216 So. 2d at 279, the defendant did not have floormats, and we found "no evidence to show that defendant's failure to provide a mat constituted a failure to exercise reasonable care." | September 13, 1985 |
2a70a7d4-7490-4a54-b018-24211fe89620 | Ex Parte Bell | 475 So. 2d 609 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 609 (1985)
Ex parte Randy Turpin BELL.
(In re Randy Turpin Bell, alias v. State).
83-1366.
Supreme Court of Alabama.
June 14, 1985.
Rehearing Denied August 23, 1985.
*610 Paul M. Harden, Monroeville, for petitioner.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson and William D. Little, Asst. Attys. Gen., for respondent.
SHORES, Justice.
Randy Turpin Bell, alias Randy Cole, was indicted and convicted of the murder of Charles Mims while robbing him, in violation of § 13A-5-40(a)(2), Ala.Code 1975. He was sentenced to death according to the guidelines set out in Beck v. State, 396 So. 2d 645 (Ala.1980). The Court of Criminal Appeals affirmed the conviction and later overruled the application for rehearing. We granted certiorari as a matter of right. Rule 39(c), A.R.A.P. We affirm.
The facts are set forth in the opinion of the Court of Criminal Appeals in this case. 475 So. 2d 601.
The petitioner argues that the trial court committed reversible error by denying his request for the names of the witnesses expected to testify on behalf of the State. He argues that, as a result, he was denied a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by the Constitution of the State of Alabama, Art. I, § 6.
*611 A defendant has no general constitutional right to discovery in a criminal case, Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). See, Peoples v. State, 418 So. 2d 935 (Ala.Cr. App.1982); Wicker v. State, 433 So. 2d 1190 (Ala.Cr.App.1983); Brown v. State, 401 So. 2d 213 (Ala.Cr.App.), cert. denied, 401 So. 2d 218 (Ala.1981); Deloach v. State, 356 So. 2d 222 (Ala.Cr.App.1977), cert. denied, 356 So. 2d 230 (Ala.1978). The petitioner does not suggest that he was unduly limited in his right to a broad voir dire of the veniremen. He only argues that he has a right under the Constitutions of the United States and of this State to know the names of the State's witnesses for purposes of qualifying the jury on voir dire. In this, he is incorrect.
The petitioner also argues that the trial court committed reversible error by allowing a lay witness (Hubbard) to give an opinion as to whether the victim (Mims) was alive or dead at the time that the witness and the defendant left him.
A lay witness may not testify as to the cause of death, Jones v. State, 155 Ala. 1, 46 So. 579 (1908); but, a lay witness may testify that another was dead. As noted by C. Gamble, McElroy's Alabama Evidence § 128.10 (3d ed.1977), there are some disorders with which all persons are familiar and which require no special skill to detect. Whether one is dead is a fact which does not require any special skill to detect. Thomason v. State, 451 So. 2d 401 (Ala.Cr.App.1984), and Dismukes v. State, 346 So. 2d 1170 (Ala.Cr.App.), cert. denied, 346 So. 2d 1177 (Ala.1977).
Hubbard's testimony at trial was as follows:
This amounts to no more than the witness's opinion that the victim was dead, and, therefore, it is permissible testimony. It does not express an inadmissible opinion as to the cause of death.
The petitioner contends that his conviction was based upon the uncorroborated testimony of an accomplice, Michael Joe Hubbard, in violation of § 12-21-222, Ala. Code 1975. Therefore, he argues, the State failed to present sufficient evidence to support the guilty verdict and, consequently, the trial court committed reversible error by denying his motion for a judgment of acquittal.
Section 12-21-222 reads as follows:
Whether a witness is an accomplice may be a question of law or fact, depending on the circumstances. Where there is a doubt or dispute concerning the complicity of a witness and the testimony is susceptible to different inferences on that point, *612 the question is for the jury. See Jacks v. State, 364 So. 2d 397 (Ala.Crim.App.), cert. denied, 364 So. 2d 406 (Ala.1978). In Jacks v. State, the Court of Criminal Appeals observed:
364 So. 2d at 403.
Hubbard testified that he and the defendant were alone with Mims at the time that he was robbed and subsequently killed. Hubbard's further testimony established his participation in the crime; however, he contended that his participation resulted from coercion, duress, and a lack of prior knowledge.
In Yarber v. State, 375 So. 2d 1229 (Ala. 1978), the Court held that when a witness denies willing participation in the crime charged against the defendant, the issue of his being an accomplice presents a question of fact for the jury. In that case, the defendant and the alleged accomplice were alone with the victims at the time the crime was committed. At the trial, in which the defendant did not testify, the alleged accomplice denied that he had prior knowledge of or was a willing participant with the defendant in the crime. In the instant case, as in Yarber, the defendant did not take the stand at trial.
We do not agree with the Court of Criminal Appeals that the issue of whether Hubbard was an accomplice was a matter of law. It was, as it was in Daniels and Yarber, supra, for the jury to decide whether Hubbard's testimony as to his alleged innocent participation in the crime was believable. Our disagreement with the Court of Criminal Appeals on this issue, however, does not mean that the trial court erred to reversal in denying the petitioner's motion for a directed verdict.
First, it was not error to refuse to direct a verdict of acquittal on the basis that the State had failed to put on a prima facie case. The testimony of Hubbard was corroborated by at least three witnesses upon which we will elaborate shortly. Therefore, the case for the jury was made out.
Secondly, the jury charges which the defendant requested and which the trial court refused were all defective, and, therefore, it was not error to refuse them. Requested charges 23, 24, 25, 26, and 27, which were refused, read as follows:
A "participant" in a crime is not synonymous with an accomplice. Stevens v. State, 333 So. 2d 852 (Ala.Cr.App. 1975). LaBryer v. State, 45 Ala.App. 33, 222 So. 2d 361 (1969), cert. denied, 284 Ala. 732, 222 So. 2d 366 (1969); Ferrell v. State, 41 Ala.App. 659, 148 So. 2d 656 (1963). Therefore, it was not error to refuse charges 23 and 27. Charge 24 was properly refused because the statute does not require corroborative testimony as to material elements of the crime; it only requires other evidence "tending to connect the defendant with the commission of the offense." The corroborative testimony here met the statutory test.
Charge No. 25 was properly refused because there was corroborative evidence other than the testimony of the two witnesses listed in the charge.
Finally, Charge No. 26 was properly refused because it is a mere abstract statement with no reference to the facts in this case.
For purposes of reviewing the record, however, we will assume that Hubbard was in fact an accomplice. In that posture, whether there was corroborating evidence tending to connect the defendant with the commission of the offense becomes a question of law. Miller v. State, 290 Ala. 248, 275 So. 2d 675 (1973). In Senn v. State, 344 So. 2d 192 (Ala.1977), the test for determining the sufficiency of such corroborating evidence under § 12-21-222 was stated as follows:
344 So. 2d at 193.
The evidence establishes that there was sufficient corroboration of Hubbard's testimony:
*614 (1) The defendant told Joe Austin, Jr., at approximately 8:30 p.m. on the night of December 14, 1981, that he had met Mims that evening for the purpose of selling him stolen goods and then robbed him; and
(2) Mims was planning to meet with the defendant on the evening of December 14, 1981, to purchase certain goods; and
(3) Mims was seen by his wife and mother on the afternoon of December 14, 1981. They have not seen him since that time. Mims was in the habit of supporting his family and visiting his parents often, neither of which he has done since December 14, 1981; and
(4) Mims's wife expected him home at 8:00 p.m. on the evening of December 14, 1981. He never came home. On that same date, Mims went to the home of Ray Anthony Pairrett at approximately 6:00 p.m. and left at approximately 7:00 p.m. He told Pairrett that he was going home, but would return there later to watch the 10:00 p.m. news and drink coffee. He never returned; and
(5) The defendant's automobile and Mims's truck were seen parked together at the campground at approximately 7:00 or 8:00 p.m. on the evening of December 14, 1981; and
(6) Mims's truck was discovered abandoned on December 15, 1981, at the campground; and
(7) The defendant's automobile was discovered in Atlanta. The trunk was wet, and there was a strong odor of detergent. A box of .25-caliber automatic ammunition was found in the automobile; and
(8) On December 11, 1981, the defendant had purchased a box of .25-caliber automatic ammunition; and
(9) Mims's body has never been found.
The foregoing facts strongly support the conclusion that Mims died of criminal agency on December 14, 1981, between 7:00 p.m., when he left Pairrett's home, and 8:00 p.m., when he was expected home by his wife, or 10:00 p.m., when he was expected back at Pairrett's home. Mims was planning to meet with the defendant on the evening of December 14, 1981, and the defendant's automobile was seen parked together with Mims's truck at the campground between 7:00 p.m. and 8:00 p.m. on that date. The defendant told Joe Austin, Jr., at approximately 8:30 p.m. on the evening of December 14, 1981, that he had met Mims that evening and robbed him. Therefore, the defendant met with Mims between approximately 7:00 p.m. and 8:30 p.m., that crucial period when Hubbard testified that he was killed. Mims has not been seen or heard from since approximately 7:00 p.m. on the evening of December 14, 1981, when he left Pairrett's home.
The defendant also contends that the State failed to prove the corpus delicti and, consequently, the trial court committed reversible error by denying his motion for a judgment of acquittal. Because Mims's body has never been found, he argues that there is no evidence tending to prove that he was actually killed. We disagree.
Hubbard's testimony at trial is as follows:
Circumstantial evidence may also be an aid in proving the corpus delicti. Phillips v. State, 248 Ala. 510, 28 So. 2d 542 (1946). State's witness, Dr. Joseph Embry, a forensic pathologist employed by the State of Alabama, testifying in response to a hypothetical question, stated that two shots fired from a handgun at a distance of *616 approximately twelve inches into the head of an individual are capable of causing the death of that individual. He was unquestionably shown to possess the qualifications necessary to testify as an expert in this regard. The State also proved that Mims was in the habit of supporting his family and visiting his parents often, neither of which he has done since December 14, 1981. He has not been seen or heard from since that date. Based on the foregoing, sufficient evidence was presented from which the jury could infer that the two shots fired by the defendant into the head of Mims caused his death.
The defendant's remaining contentions were fully and correctly decided by the Court of Criminal Appeals. We, too, have reviewed the propriety of the death sentence in this case, pursuant to the requirements of § 13A-5-53(a), Ala.Code 1975, and Beck v. State, 396 So. 2d 645 (Ala.1980), and find that the sentence of death was appropriate. Therefore, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, EMBRY, BEATTY and ADAMS, JJ., concur.
ALMON, J., concurs in the result. | June 14, 1985 |
a41e671b-dccd-451b-a566-340a465a8c9b | Curtis White Const. v. Butts & Billingsley | 473 So. 2d 1040 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1040 (1985)
CURTIS WHITE CONSTRUCTION COMPANY, INC.
v.
BUTTS & BILLINGSLEY CONSTRUCTION COMPANY, INC.
84-61.
Supreme Court of Alabama.
June 21, 1985.
James C. Pino of Mitchell, Green, Pino & Medaris, Alabaster, for appellant.
Tom Radney of Radney & Morris, Alexander City, for appellee.
SHORES, Justice.
This dispute arose out of a paving contract which the plaintiff contends the defendant breached. The trial court, having heard the evidence, found for the defendant. Plaintiff appeals. We affirm the order of the trial court, which is as follows:
"The plaintiff and the defendant entered into a contract whereby the defendant was to perform certain paving work for the plaintiff for the sum of $18,493.00. The work was performed, passed inspection, and the defendant was paid the full consideration. Subsequent to the completion of the work, and the plaintiff's own evidence is in dispute concerning this point, but sometime between two months and eight months, the plaintiff experienced problems in connection *1041 with the defendant's work and called upon the defendant to correct same. On two occasions the defendant responded and attempted to repair the alleged defects; and then abandoned the project. The plaintiff contends that he was injured and damaged as a result of the defendant's breach of contract or breach of warranties in connection with the contract.
The plaintiff on appeal recognizes that it has a heavy burden when it seeks a reversal of an order on the ground that the decision is not supported by the evidence. It is the function of a trial judge sitting as factfinder to decide facts where conflicts in the evidence exist. Such was the case here. The appellate courts do not sit in judgment of the facts, and review the factfinder's determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law. No error of law exists in this case, and where there is evidence to support the decision reached by the factfinder, we must affirm its judgment. Pollard v. Guaranty Pest Control, Inc., 346 So. 2d 953 (Ala.1977); Commercial Contractors, Inc. v. Sumar Contractors, Inc., 293 Ala. 271, 302 So. 2d 88 (1974); First Alabama Bank of Montgomery v. Coker, 408 So. 2d 510 (Ala.1982).
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | June 21, 1985 |
31638a88-6356-4641-9260-c47b2e3d5372 | Alabama Power Co. v. Marine Builders, Inc. | 475 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 168 (1985)
ALABAMA POWER COMPANY, a corporation
v.
MARINE BUILDERS, INC., a corporation; and Bangor Punta Corporation, a corporation.
83-2.
Supreme Court of Alabama.
August 2, 1985.
*170 Carroll H. Sullivan of Gaillard, Little, Hume & Sullivan, Mobile, Edward S. Allen of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, for appellant.
Peter V. Sintz and Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellee Marine Builders.
Alex T. Howard, Jr. and Alan C. Christian, of Johnstone, Adams, Howard, Bailey & Gordon, Mobile, for appellee Bangor Punta Corp.
BEATTY, Justice.
This is an appeal from a judgment entered upon a jury verdict for plaintiffs and against Alabama Power Company in the amount of $3.5 million. We affirm.
The case is an outgrowth of a boating accident which occurred on Dog River, at the entrance to Halls Mill Creek, a navigable waterway in Mobile County, Alabama, on May 6, 1979. At that time and place, David Williams was operating a 1975 O'Day 25-foot sailing vessel, manufactured and sold by Bangor Punta Corporation (Bangor Punta), and subsequently purchased second-hand by Williams. Williams's wife, Jeri, and his daughter, Jennifer, were passengers. As the vessel was proceeding, its mast, which measured 33 feet, 8 inches above water level, came into contact with the standard 7,200-volt electric distribution line maintained by Alabama Power Company (APCo) and suspended across Halls Mill Creek. The ensuing electrical shock killed both Mr. and Mrs. Williams and injured their daughter, Jennifer.
On July 20, 1979, the administrators of the estates of Mr. and Mrs. Williams and the guardians of their surviving minor children, Jennifer, Pamela, and Lori, filed individual lawsuits, which were consolidated in state court under 28 U.S.C. § 1333,[1] pursuant to the admiralty jurisdiction of the United States, claiming damages for the deaths of Mr. and Mrs. Williams and for the personal injuries sustained by Jennifer. The first count claimed compensatory damages on behalf of the administrators and the minor children for the death of David Williams proximately caused by the negligence of APCo. The second count claimed punitive damages under the wrongful death statute. The third count claimed compensatory damages on behalf of Jennifer Williams.
APCo by answer denied any culpability. APCo also filed a third-party complaint against the United States[2] seeking indemnity and contribution because of alleged misrepresentations by its representative, the Corps of Engineers, United States Army, which it claimed were the efficient cause of the accident. It also filed a third-party complaint against the Corps of Engineers and the National Oceanic and Atmospheric *171 Administration of the Department of Commerce, alleging their negligent failure to cause charts of the water area to depict the subject power line to be the efficient cause of the accident.
The United States appealed, seeking removal of the cause to federal court. Removal ensued; however, the cause was subsequently remanded to state court following a dismissal of the United States as a party. Following this remand, APCo moved to name Marine Builders, Inc. (Marine Builders), and Bangor Punta as third-party defendants. This motion was granted, whereupon APCo filed its third-party complaint against Bangor Punta and Marine Builders. In its claim seeking indemnity and contribution from Bangor Punta, APCo maintained that the Williams sailing vessel was defective and unreasonably dangerous because it was not grounded. APCo also charged that Bangor Punta should have warned the ultimate consumer of sailboat electrocution accidents of which it had prior knowledge, and of the dangers attendant to aluminum mast contact with overhead power cables. As against Marine Builders, APCo alleged that it was negligent and wanton in moving its newly constructed shrimp trawlers from their construction site down Halls Mill Creek so as to have their masts repeatedly collide with APCo's distribution line. This, according to APCo, entitled it to indemnity and contribution if APCo was found to be liable to plaintiffs.
Upon APCo's motion, the trial court dismissed the plaintiffs' claims under Alabama's wrongful death statute, thus effectively deciding that the case would proceed exclusively under admiralty jurisdiction and substantive law. See Kennedy Engine Company v. Dog River Marina and Boatworks, 432 So. 2d 1214 (Ala.1983). A later amendment by APCo to its third-party complaint was stricken on motion. Following trial, the jury returned five separate verdicts for the plaintiffs against APCo in the aggregate sum of $3.5 million. The jury also found in favor of the third-party defendants, Bangor Punta and Marine Builders. APCo's motions for judgment notwithstanding the verdict, new trial, or remittitur, partially including grounds relating to its third-party claims, were denied. APCo paid the judgments and took this appeal from the judgments in favor of Marine Builders and Bangor Punta. The issues raised will be treated seriatim.
This issue pertains to a "mast warning" sticker which, beginning with the 1976 model of the O'Day 25-foot sailboat, Bangor Punta placed upon each boat it manufactured. This sticker contained language warning that contact with overhead power lines was dangerous, and restated the warning found in the operating and rigging instructions furnished with the vessel. This "mast warning" was not affixed to the 1975 model of the Williams sailboat, but, as stated above, was placed on later models. During the trial, APCo's attempts to introduce evidence of this warning were excluded on objection. The trial court also excluded evidence included in answers to interrogatories by and in the deposition of James H. Hunt, Bangor Punta's president, pertaining to such warnings.
APCo acknowledges in brief that the "mast warning" was first introduced after the 1975 sailboat of the Williamses had been sold by Bangor Punta and left its possession. APCo maintains that this evidence was, nevertheless, relevant on the issue of Bangor Punta's negligence, because the "mast warning" came into existence some three years before the accident. It is apparent that the trial court's refusal to admit this evidence was based upon its conclusion that it constituted an inadmissible subsequent remedial measure.
That rule, of course "is designed to protect the important policy of encouraging defendants to repair and improve their products and premises without the fear that such actions will be used later against *172 them in a lawsuit." Werner v. Upjohn Company, 628 F.2d 848, 855 (4th Cir.1980). To be sure, federal cases, under Federal Rule of Evidence 407, allow the introduction of subsequent remedial measures to prove the feasibility of such remedial measures, but only when feasibility is controverted. Werner at 853. That position is also followed by Alabama case law, which follows Werner. In Standridge v. Alabama Power Co., 418 So. 2d 84 (Ala.1982), this Court stated:
The same reasoning applies here. The exception to establish the feasibility of a "mast warning" was never controverted at trial by Bangor Punta; indeed, feasibility was conceded by it in its motion in limine filed before trial. For aught that appears, APCo's purpose in introducing such evidence was to show Bangor Punta's negligence in the first instance, i.e., in selling the sailboat without that warning, and not to controvert at trial the feasibility of such a warning.
APCo, however, argues that the absence of the "mast warning" was nevertheless admissible because Bangor Punta had knowledge of the danger of electrical shock from possible contact with lower power lines before this accident took place. In other words, APCo would have this evidence admitted against Bangor Punta, even though Bangor Punta's control over the sailboat had long since ceased, so long as Bangor Punta had knowledge of the danger before the accident. Alabama cases have focused on post-accident remedial changes to premises, facilities, or articles under the defendant's control which proximately causes injury. See Standridge, supra; Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So. 2d 274 (1975). Thus, had Bangor Punta controlled the sailboat in question at the time the "mast warnings" were placed upon 1976 models, perhaps an issue of negligence would have been made by its failure to incorporate that change in the 1975 model.[3] But, as the Fifth Circuit Court of Appeals has commented on the subject of subsequent remedial measures in a products liability case, Grenada Steel Industries, Inc. v. Alabama Oxygen Co., 695 F.2d 883, 888 (5th Cir.1983):
See also Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976) (to establish liability in a products liability case, plaintiff must show that he suffered injury by one who sold a product in a defective condition); and First National Bank of Mobile v. Cessna Aircraft Co., 365 So. 2d 966 (Ala. 1978) (the manufacturer's liability arises because he has placed the product on the market and having done so, if he still retains some measure of control, no sale having taken place, he should be liable).
A question on the relevancy of testimony is ordinarily a matter within the trial judge's discretion, and his ruling thereon will not be considered error on appeal unless that discretion has been grossly abused. Costarides v. Miller, 374 So. 2d 1335 (Ala.1979). See also Burbic Contracting Co. v. Cement Asbestos Products Co., 409 So. 2d 1 (Ala.1982) (exclusion of post-manufacture improvement in product line is not abuse of trial court's discretion). In this instance, that discretion was not abused.
One of the facts adduced at trial pertaining to the manufacture of the Williams sailboat was that it was not equipped with a lightning protection grounding system. It was APCo's position at trial that the presence of a grounding system on this boat would have greatly enhanced the Williamses' chances of surviving the electrical shock from contact with the power line. In support of this position, APCo presented the expert testimony of Dr. Norbert Schmitz. This witness conceded that a number of metallic alterations had been made to the sailboat by Mr. Williams after he purchased it (and after it had left Bangor Punta). These included an outboard motor on the stern, a metal gas can under the back seat, a metal steering wheel connected down to the rudder, and a metal throttle to the outboard motor. Dr. Schmitz testified that all of these would be required to be bonded to a grounding, or bonding, system with the aluminum mast in order to have lightning protection, and that had they been grounded together, the Williamses would have been "like birds on a power line," and would not have sustained such serious injuries. Dr. Schmitz also testified that without the additional bonding of the added items and with a factory-installed bonding system otherwise, with the voltage encountered, "there would have been sufficient [voltage] to have caused that kind of an injury, but it is not always a direct consequence of contact.... It's in a grey area which we simply don't know." His testimony followed:
In rebuttal of this testimony, Bangor Punta called Mr. Joe Kuncl. This witness testified to an accident he experienced in July 1967 when the mast of his sailboat came in contact with a 12,500-volt power line[4] on the Fon du Lac River near Fon du Lac, Wisconsin. Kuncl was operating a 25-foot New Horizons sailboat equipped with an inboard engine, when he reached for the metal reverse gear, and at that time the boat's mast contacted the power line, severely burning him about the body and head. Kuncl's sailboat was equipped with a lightning protection grounding system. Bangor Punta also produced Mr. Edward Grogan, who witnessed Kuncl's accident and described Kuncl's serious injuries. A photograph of Kuncl showing his severe injuries was also introduced by Bangor Punta.
APCo attacks the relevancy of this testimony as having no logical relationship to the issues, as being "too remote," as confusing to the jury, and as res inter alios acta. None of these objections is valid here, however. As evidence offered in rebuttal of Dr. Schmitz's opinion, it was clearly relevant. Dr. Schmitz's opinion was to the effect that the presence of a lightning grounding system on any sailboat would allow a person on that boat to have been "like a bird on a power line," without serious injury if the boat's mast struck a 7,200-volt power line. Thus, his testimony encompassed the entire field of possible serious injury from such a general condition, and thus it was proper rebuttal evidence to show, contrary to Dr. Schmitz's opinion, that serious injury could in fact result from such a condition. When evidence is offered for the purpose of establishing the impossibility of some point, it is proper rebuttal to show the possibility of that which the opponent claims is impossible. Cf. Watson Orchards v. New York Central Ry., 263 Ill.App. 397 (1931); Comment, 34 Ill.L.Rev. 210-11 (1939). Thus, when Dr. Schmitz's opinion was introduced showing the impossibility of serious injury or death on any sailboat equipped with grounding, it was allowable to rebut his opinion with real evidence of such an injury in a sailboat so equipped which struck a similar power line. Sims v. Callahan, 269 Ala. 216, 112 So. 2d 776 (1959). The admission of such evidence was within the discretion of the trial court, Gulf Refining Co. v. First National Bank of Mobile, 270 Ala. 351, 119 So. 2d 1 (1960); Raines v. Williams, 397 So. 2d 86 (Ala.1981), and, contrary to APCo's contention, was directed to a material issue, i.e., the effect of a lightning grounding system. See Cherry v. Hill, 283 Ala. 74, 214 So. 2d 427 (1968). The objection of remoteness was not made at trial; even so, such a question is likewise addressed largely to the trial court's discretion, subject to disturbance only for gross abuse, not present here. Ryan v. Acuff, 435 So. 2d 1244 (Ala.1983). The objection of res inter alios acta is also addressed to relevancy. Loftin's Rent-All, Inc. v. Universal Petroleum Services, Inc., 344 So. 2d 781 (Ala.Civ.App.1977).
We reach the same conclusion concerning the photograph displaying Mr. *175 Kuncl's injuries. This case concerns the possibility of incurring serious burns and death caused by electricity. The photograph of Kuncl discloses serious burns incurred under conditions substantially similar to those which the Williamses experienced. The fact that the photograph partook of that character did not make it irrelevant.
The photograph here met those requirements and thus its admission into evidence was not error. Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So. 2d 306 (1963).
Nor was it error for the trial court to disallow the introduction of certain other photographs into evidence. According to Dr. Schmitz's testimony, these were enlargements of smaller photographs which had been shown to him by someone else, and identified by that other person as photographs of Kuncl's sailboat. Dr. Schmitz himself had not seen the Kuncl sailboat itself and thus could not testify to the authenticity of the photographs as accurate reproductions of the object they displayed, having no actual knowledge of it. Smith v. Claybrook, 349 So. 2d 1087 (Ala.1977). The proper predicate not having been laid, the trial court correctly excluded the photograph.
That instruction follows:
In that connection, the trial court also gave as part of its oral charge the following:
The evidence referred to in these charges pertained first to the testimony of plaintiff's witness, Dr. Schmitz, through whom a copy of Volume 7 of a publication entitled "The National Fire Code" was introduced. Dr. Schmitz testified that that publication had been approved by the American National Standards Institute and contained provisions regarding the installation of grounding systems for cruising sailboats. Dr. Schmitz conceded that he did not know of any manufacturer who followed these standards, and also conceded that the provisions therein pertaining to grounding against lightning made no reference to protection from overhead power lines. We take note that the National Fire Code provisions themselves are "documents which have been judged [by their authors] suitable for legal adoption and enforcement." Indeed, Dr. Schmitz qualified his own testimony relative to their adherence by the boating industry at large:
Over defendant's objections, the trial court allowed this document into evidence, as well as a copy of "Safety Standards for Small Craft" and "Standards of the American Boat and Yacht Council." The trial judge at that time, as well as later when he charged the jury, announced that these publications would be admitted for whatever weight the jury would give to them.
This Court has examined each of the documents. Each publication is a recommended practice and standard for guidance, and is not shown to have been adopted by the sailboat industry itself. Moreover, none of the recommendations for the arrest of lightning referred to such a practice as a protection from contact with an overhead power line. Dr. Schmitz himself knew of no publication making grounding on sailboats protection from contact with overhead power lines or of any industry adoption of the recommendations in the proposed standards:
In rebuttal, Bangor Punta's president, Mr. Hunt, who had served as a member of the board of directors of the American Boat and Yacht Council (ABYC), testified that such recommendations were not related to contact with overhead power lines. Mr. Gorham Lippman, the executive director of the ABYC, called by Bangor Punta, testified likewise, and added:
*177 Several Alabama cases have dealt with the admissibility of safety regulations published by federal agencies under the authority of Congress. In City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939), this Court approved the admissibility of certain portions of the "Handbook of the Bureau of Standards, No. 10" dealing with "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines," but admonished that such rules, though admissible as expert opinion evidence (to be considered by the jury), were not regulations having the force of law whose violation was negligence per se. To the same effect is Knight v. Burns, Kirkley & Williams Construction Co., 331 So. 2d 651, 654 (Ala.1976), which held that certain safety requirements enacted within the terms of the Occupational Safety and Health Act and its regulations were admissible "for a jury to consider in determining the standard of care that a defendant should have followed." See also Meadows v. Coca-Cola Bottling, Inc., 392 So. 2d 825 (Ala.1981). We have been cited to no Alabama cases extending this principle to private proposals such as those admitted here, not governmental agency regulations adopted under governmental authority. Under the evidence, moreover, we cannot find that these recommendations were relevant to the inquiry, i.e., as protection from contact by a metal mast with an overhead power line; thus the trial court would not have been in error in excluding such evidence. However, APCo complains only that the trial judge erred in his instruction to the jury allowing them to consider this evidence along with other evidence on the issue of negligence. Thus, any error in admitting it was not prejudicial to APCo.
That portion of the trial court's lengthy instructions pertinent to this issue is as follows:
Additionally, and at APCo's request, the trial court also gave the following charge:
APCo based its claim against Bangor Punta on the basis of active-passive negligence. In fact, the trial court gave APCo's requested jury charges authorizing one guilty of only passive negligence to recover by way of indemnification from a party guilty of active negligence (under admiralty law). The entire oral charge, taken as a whole, places liability upon Bangor Punta if it manufactured a product "which may be reasonably anticipated to be dangerous if defectively made" because the manufacturer "owes a duty to exercise reasonable care in the manufacturing of his product so that it will be reasonably safe for its normal usage." This aspect of the instruction accords with our doctrine of manufacturer's liability. Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976). The later reference in the court's oral charge that "although the third party defendant, Bangor Punta, used reasonable care in designing, making, inspecting, and testing the sailboat, Bangor Punta learned before it placed on the market of the defect" did not prejudice APCo in view of the language of the charge as a whole, which placed liability upon Bangor Punta as earlier stated.
Thus, we find no reversible error in the trial court's instructions. Wright v. Rowland, 406 So. 2d 830 (Ala.1981); Cities Service Oil Co. v. Griffin, 357 So. 2d 333 (Ala. 1978). If counsel had thought the entire charge misleading, he should have requested an explanatory instruction. Cf. Mobile County Gas District, v. National Cash Register Co., 295 Ala. 188, 326 So. 2d 105 (1976); and McLemore v. Alabama Power Co., 289 Ala. 643, 270 So. 2d 657 (1972).
It is APCo's contention that the "minimum clearance standard" of the Corps of Engineers was "pertinent on the issue of the manufacturer's foreseeability of mast contact" and thus that it was error to refuse a jury instruction on that standard.
The necessity for a permit over navigable waters arises from 33 U.S.C. § 403:
The list of prohibited obstructions is not exclusive, United States v. Illinois Terminal R. Co., 501 F. Supp. 18 (E.D.Mo.1980), but extends to "any type of obstruction." United States v. Republic Steel Corp., 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903 (1960).
The evidence established that the Corps of Engineers of the United States Army was the regulatory agency responsible for issuing authorizations, or permits, for the installation of utility lines over navigable waters. The procedure incumbent in obtaining such a permit first required a minimum of 30.8 feet above maximum high (tide) water to apply for a permit. Nevertheless, officials of the Corps of Engineers testified that the elevation of the line over the water was governed by, and thus controlled by, the height or elevation expressed in the permit ultimately issued by the Corps, which in this case was 40 feet above mean low water. The evidence also established that this 40-foot elevation conformed to the original application for a permit submitted by APCo to the Corps of Engineers in 1936. This application was accompanied by a diagram of the proposed power line which proposed the location of the line as 40 feet above mean low water. Thus, while the minimum clearance standard of 30.8 feet was the minimum with which to support an application, it was the responsibility and within the authority of the Corps of Engineers to grant the final permit at a height deemed safe and feasible to the Corps. United States v. King Fisher Marine Service, 640 F.2d 522 (5th Cir. 1981) (permit issued by Corps of Engineers under 33 U.S.C. § 403 for dredging operations requires strict compliance). See also Zabel v. Tabb, 430 F.2d 199, 207 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S. Ct. 873, 27 L. Ed. 2d 808 (1971) (33 U.S.C. § 403 "is structured as a flat prohibition unless the unless being the issuance of approval by the corps").
Additionally, it is shown by the evidence that the minimum clearance requirement was dropped from the Corps regulations prior to the time this sailboat was manufactured. Thus, such former minimum requirement should have had no relevance to the foreseeability of mast contact with this power line. Furthermore, although APCo also argues that the trial court refused to permit evidence of the 30.8-foot standard, the record reflects that both the application standard height and the permitted height were testified to in substantial detail; hence no error can be predicated upon any such alleged error. Sweatman v. Federal Deposit Ins. Corp., 418 So. 2d 893 (Ala. 1982). Having so ruled, we need not consider whether the duty of APCo to maintain the power line at the 40-foot level has not already been decided by the jury when it found in favor of the plaintiffs.
APCo's argument here is that "the jury should have been instructed that APCo had a right to recover punitive damages from *180 Bangor Punta and Marine Builders, in the event the evidence warranted it."[5] We disagree.
At the conclusion of all the evidence, Bangor Punta and Marine Builders moved for a partial directed verdict in their favor on the issue of whether either was guilty of wanton misconduct. The trial court granted this motion. Subsequently, the trial court instructed the jury on the issue of punitive damages by way of indemnity and contribution:
APCo's argument fails for several reasons. For one thing, it does not point to any evidence of wanton misconduct on the part of either Marine Builders or Bangor Punta warranting an award of punitive damages against either or both, and our reading of the record reveals none. For another, it is clear that the law does not allow punitive damages, as opposed to compensatory damages, by way of contribution or indemnity. Addressing the same problems which arose in the context of a 42 U.S.C. § 1983 action, the court in Davidson v. Dixon, 386 F. Supp. 482 (1974), aff'd without opinion, 529 F.2d 511 (3d Cir.1975), reasoned:
To the same effect is Gagnon v. Ball, 696 F.2d 17 (2d Cir.1982), concurred in by McFadden v. Sanchez, 710 F.2d 907 (2d Cir.N.Y.1983). These authorities are persuasive that allowance of punitive damages awards in such claims as the present ones under federal law rests upon individual culpability rather than upon liability based merely upon contribution and indemnity.
Finally, we note that the jury did not award any compensatory damages against either Bangor Punta or Marine Builders. Thus, APCo did not recover under its claims that the sailboat's manufacture was defective and that Marine Builders' actions in moving its shrimp boats under the power line were negligent. The jury's having found in favor of these third-party defendants on the question of liability, the issue of punitive damages became moot.
It appears from the record that the injection of the price of Marine Builders' shrimp *181 boats and Marine Builders' net worth occurred in the opening statement of APCo's attorney. That statement referred to Marine Builders' construction of "bigger" and "taller" shrimp boats (which were then sailed down Halls Mill Creek with "skids" on the masts to enable them to pass under APCo's power line). That statement continued:
Later, during APCo's cross-examination of Ed Horton, one of the owners of Marine Builders, the following took place:
Later in the trial, the attorney for plaintiffs called Mr. Ray Horton, vice-president of Marine Builders, as an adverse witness, and during his testimony on direct examination, he referred to his company's difficulties with APCo's low power lines and its repeated concerns about the safety of its men and others. He added:
We have referred to the financial condition of Marine Builders vis-a-vis the power line, as disclosed in the record, to show that the subject was first broached on cross-examination of a witness by APCo itself, and later by plaintiffs in cross-examination, not by Marine Builders. In Ray Horton's later testimony, APCo attempted to have him disclose the net worth of Marine Builders and the sales prices of their shrimp boats, but objection to this was sustained.
The obvious purpose of this line of questioning was to show that Marine Builders had the financial ability to raise the power line. This issue has been mooted by the jury's verdict for plaintiffs and in favor of Marine Builders and Bangor Punta on APCo's claims against them for negligence. The jury implicitly found that it was APCo's duty to maintain the lines at a 40-foot level and that it failed in this duty, and that its failure proximately resulted in the deaths and injuries. The jury's findings exonerating Marine Builders implicitly found that Marine Builders owed no duty to raise the lines. Thus, any evidence disclosing that Marine Builders had the financial ability to raise the lines was irrelevant if Marine Builders had no duty to do so.
Moreover, by arguing that the financial condition of Marine Builders was admissible by APCo to rebut evidence offered by Marine Builders, APCo, we respectfully suggest, has misconceived the order of the evidence. It was APCo, and then plaintiffs, who adduced this evidence, not Marine Builders. Hence, the Rule of Cities Service Oil Co. v. Griffin, 357 So. 2d 333 (Ala.1978) (permitting rebuttal of irrelevant evidence offered by opposing party) does not apply. The trial court did not err in disallowing this evidence.
We reiterate that this case is being reviewed under federal law, not Alabama law.
This requested charge follows:
Whether or not the giving of this instruction was error, we believe, must be considered in the framework of APCo's claim *183 for indemnity and contribution, and the trial court's other pertinent charges:
Insofar as indemnity is concerned, it has been stated that:
Delano v. Ives, 40 F. Supp. 672, 674 (E.D. Pa.1941). Or, as stated in Maritime Overseas Corporation v. Northeast Petroleum Industries, Inc., 706 F.2d 349 (1st Cir. 1983), quoting Araujo v. Woods Hole, Martha's Vineyard, Nantucket Steamship Authority, 693 F.2d 1, 3 (1st Cir.1982):
The doctrine of contribution, on the other hand,
Anno. 53 A.L.R.3d 184, 190 (1973).
The instruction in question was tantamount to charging that if APCo was in a better position to appreciate the risk of injury and avoid the danger, particularly where the danger was within the control of APCo and its employees, APCo would not be entitled to indemnity. This principle has been recognized in negligence cases under the Longshoremen's and Harbor Workers Compensation Act and appears equally appropriate here. The evidence clearly established the control of APCo over the power line, and so, in view of the trial court's entire charge on APCo's right to indemnity, including the distinction between active and passive negligence, we find no error in the giving of this charge. Cf. Scindia Steam Navigation Co., Ltd. v. Santos, 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed. 2d 1 (1981), and Ryan Stevedoring Co. v. Pan-Atlantic Steam. Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956) (employing both the warranty theory and the negligence theory of liability to measure the right to indemnity of one best situated to avoid the injury). At most the charge might have been considered misleading, and if APCo so considered it, an explanatory instruction could have been requested. Authorities, supra.
Let the judgments be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] § 1333(1): "Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled."
[2] See 46 U.S.C. § 741 et seq.
[3] APCo alleged that this sailboat was "designed, manufactured, and sold ... in a defective condition and was unreasonably dangerous to the ultimate users or consumers."
[4] Such a power line, also known as a 12-KV line, was later explained in evidence as the same as a 7,200 volt line when measuring voltage between a conductor and the ground. On the day of this accident, the line in question was a 12-KV line.
[5] Some 13 days prior to trial APCo filed a second amendment to its third-party complaint, alleging that Bangor Punta and Marine Builders were guilty of wanton misconduct. Upon motions and after hearing, this amendment was struck. APCo does not attack the exercise of the trial court's discretion in taking that action, but argues that the trial court should have instructed the jury on its right to recover punitive damages based upon the evidence. | August 2, 1985 |
ad2b5158-df81-49fc-a1ee-fd8967407288 | Pugh v. State Farm Fire & Cas. Co. | 474 So. 2d 629 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 629 (1985)
Albert PUGH
v.
STATE FARM FIRE & CASUALTY COMPANY.
83-713.
Supreme Court of Alabama.
June 28, 1985.
*630 Melvin W. Brunson of Thiry, Maples & Brunson, Mobile, for appellant.
Fred W. Killion, Jr., Carl Robert Gottlieb, Jr., & Patricia K. Olney of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
ADAMS, Justice.
Albert Pugh sued State Farm Fire & Casualty Insurance Company (State Farm) for breach of contract, based upon State Farm's failure to pay benefits when Pugh's house was destroyed by fire. The trial resulted in a jury verdict for State Farm. Pugh appeals on the grounds that inadmissible and prejudicial testimony was improperly allowed into evidence. We disagree and, therefore, affirm the judgment based on the jury's verdict.
Pugh purchased the home in question from Clarence Wells. Wells had maintained a homeowner's insurance policy with State Farm while he owned the home. The policy was written through Worlie Ballard, a local agent for State Farm. After purchasing the home, Pugh requested that Wells's policy be transferred into Pugh's name. Ballard accomplished this by an endorsement to the policy. The homeowner's policy was eventually reissued in Pugh's name.
At one point after Pugh purchased the house, the air conditioner compressor was struck by lightning. Pugh filed a claim on this loss, which State Farm paid.
During the late night hours of November 20, 1975, or the early morning hours of November 21, 1975, Pugh's home caught fire and was totally destroyed. Pugh filed a claim with State Farm for the loss, but never received notice of any decision made by State Farm regarding payment. Pugh filed this lawsuit against the company for breach of contract on April 9, 1976.
State Farm's investigation of the fire revealed evidence that the fire may have been the result of arson, and, additionally, that Pugh may have misrepresented facts in a questionnaire form filled out pursuant to the transfer of the insurance into Pugh's name. Based on this evidence, in May 1976, State Farm sent a letter to Pugh rescinding the contract and returning $166.00 as a refund on the premium paid. State Farm filed an answer in the lawsuit, alleging willful burning by Pugh, misrepresentation, rescission, and conspiracy to defraud.
Prior to the trial, Pugh filed a motion to exclude, inter alia, the following evidence: 1) a deposition of James Lacy, including a statement contained therein that Robert Peacock told Lacy that Peacock had been hired by Pugh to burn Pugh's house; 2) reference to a prior fire claim filed by Pugh on a separate piece of property; and 3) reference to a prior fire claim made by Pugh's father on a separate piece of property. The motion was denied in regard to this evidence.
During the trial, State Farm introduced the following evidence: 1) testimony about a fire Pugh suffered in 1974, on which he filed an insurance claim; 2) testimony about a fire at a former business location of Pugh; 3) testimony about fires suffered by certain of Pugh's family members; and 4) deposition testimony of James Lacy. Pugh objects to the admission of this evidence and asks us to reverse the judgment based on the jury verdict below.
Pugh asserts that the trial court erred in allowing State Farm to introduce *631 evidence about a fire suffered by Pugh in 1974. He correctly states that he should not be found guilty of willful burning based on prior acts. This evidence, however, was introduced on the issue of whether Pugh misrepresented facts to insurance agent Ballard concerning prior fire losses, and not on the issue of whether he willfully burned his house. State Farm alleged misrepresentation as a defense in the lawsuit and this evidence was relevant and admissible on this issue. State Farm was attempting to prove that Pugh failed to disclose prior fire losses and that the insurer was entitled to rescind the insurance contract based upon those misrepresentations. Banker's Life and Casualty Co. v. Long, 345 So. 2d 1321 (Ala.1977).
Pugh also objects to the admission of James Lacy's deposition testimony in the trial below. Much of the testimony was read into evidence by the attorney for State Farm. Pugh argues first that the deposition was not admissible because the trial court made no finding that any of the requirements of Rule 32(a)(3), A.R.Civ.P., had been satisfied. The rule provides as follows:
Rule 32(a)(3), A.R.Civ.P. In the trial below, the judge stated that State Farm's attorneys had advised the court that Lacy was out of state. Pugh offered no evidence contrary to that. It is up to the trial court to determine the admissibility of a deposition if one of the situations in Rule 32(a)(3) is present, and if Pugh presented no controverting evidence, then no error was committed in admitting the deposition testimony. Cunningham v. Lowery, 45 Ala.App. 700, 236 So. 2d 709 (1970).
Pugh further objects to a statement made by Lacy in his deposition to the effect that Robert Peacock told Lacy that Pugh hired Peacock to burn down Pugh's house. Pugh claims that the statement is hearsay and the trial court erred in admitting the statement. We disagree. Peacock had testified in this case prior to the reading of Lacy's deposition into evidence. Peacock was questioned about his dealings with Pugh. Peacock denied having any connection with the burning of Pugh's house, and denied ever talking with James Lacy. Lacy's testimony was not presented for the truth of the matter asserted, but for the purpose of impeaching Peacock. Therefore, it was admissible.
Another assertion of error which Pugh makes regards evidence of fires suffered by Pugh's family members. Although we acknowledge that evidence of the bad conduct of Pugh's relatives is not necessarily relevant on the issue of willful burning, Pugh's attorney failed to correctly preserve any error involved in admitting the evidence. After the initial objection to the testimony, the trial judge allowed the evidence with the qualification that if State Farm did not "tie it up," then the judge would exclude the testimony upon request from counsel. It does not appear in the record that any such request was made. When evidence is admitted upon the condition that its relevance be shown by subsequent evidence, and no such showing is made, it is incumbent on the objecting party to either renew his objection or move to exclude the evidence because its relevancy was never shown. Cook v. Latimer, 279 *632 Ala. 294, 184 So. 2d 807 (1966). We cannot say the trial court erred, since Pugh's attorney did not bring the error to the court's attention.
Pugh additionally asserts that it was error for the trial court to admit evidence of an alleged fire at a former business location of Pugh. Pugh was questioned about this fire during cross-examination and denied the occurrence, and State Farm subsequently put on testimony regarding it. This testimony was relevant on the issue of Pugh's alleged misrepresentation on his insurance application regarding prior fires. Thus, there was no error in the admission of this testimony.
Having reviewed the record and the assertions of error made by Pugh, we find that the evidence in issue was properly admitted and considered by the jury. For the above reasons, the judgment based on the jury verdict is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | June 28, 1985 |
d96713d3-c66f-4547-9220-d5c3a65d6bb7 | State Farm Mut. Auto. Ins. Co. v. Burgess | 474 So. 2d 634 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 634 (1985)
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
v.
Norman P. BURGESS.
83-790.
Supreme Court of Alabama.
June 28, 1985.
*635 Joel W. Ramsey of Ramsey & Baxley, Dothan, for appellant.
Stephen T. Etheredge of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellee.
ADAMS, Justice.
This is an appeal by State Farm Mutual Automobile Insurance Company (State Farm) of a summary judgment entered against it in a suit filed by Norman Burgess to collect uninsured motorist benefits. We reverse the judgment of the trial court.
On August 8, 1979, Burgess, while driving a semi-trailer truck, was involved in a collision in Tennessee with another truck. Burgess sustained serious physical injuries in the accident. In June 1980, Burgess filed suit against the owner and the driver of the other vehicle involved in the collision. This suit was tried in September 1983 and resulted in a jury verdict of $250,000.00 in Burgess's favor.
While the litigation with the owner and driver of the other truck was still pending, Burgess became aware of the possibility that these defendants were not insured. Burgess then notified his insurance company, State Farm, of the accident by filing an "Automobile Claim Report" with the company, dated August 31, 1981. Burgess had two vehicles insured with State Farm, both of which had uninsured motorist coverage.
Burgess's policy form read in part as follows:
POLICY CONDITIONS
The policy provisions relevant here are the requirements that Burgess notify State Farm of the accident in writing as soon as practicable thereafter, and additionally, that Burgess send to State Farm a copy of the summons and complaint filed against the owner and driver of the other truck immediately upon filing suit. Burgess did not notify State Farm of the accident until August 1981, over two years after it occurred. Burgess never sent State Farm a copy of the summons and complaint filed in his personal injury action.
Based on failure to comply with the notice provisions of the policy, and failure to send a copy of the summons and complaint, State Farm denied Burgess's request for uninsured motorist benefits. Burgess filed suit to recover those benefits in August 1983. The trial court granted summary judgment in favor of Burgess based on the pleadings, affidavits, deposition, and exhibits. *636 The court held that there was no genuine issue of material fact, and that Burgess was entitled to judgment as a matter of law.
The issue here is whether, under the undisputed facts of this case, Burgess is entitled to collect uninsured motorist benefits in spite of alleged non-compliance with policy notice provisions and failure to forward suit papers.
We first address Burgess's failure to notify State Farm of the accident until over two years after it occurred, although his policy required notice "as soon as practicable." This Court has construed the phrase "as soon as practicable" to mean "within a reasonable time" in view of all the facts and circumstances of the case. Southern Guaranty Insurance Co. v. Thomas, 334 So. 2d 879 (Ala.1976). The Court discussed reasonableness in this way:
334 So. 2d at 883. Therefore, under existing Alabama case law, the reasonableness of Burgess's delay would be measured only by the reasons for the delay and the length thereof. The adoption of a rule requiring the insurer to show prejudice as a factor in determining reasonableness was rejected not only in Thomas, supra, but more recently in Pharr v. Continental Casualty Company, 429 So. 2d 1018 (Ala.1983).
Under our cases then, Burgess should recover if he showed reasonable grounds for his delay in notifying State Farm. Nowhere does Burgess expressly state his reasons for delay. Implicit in statements in both his complaint and affidavit, however, is the inference that he did not realize the defendants in his personal injury lawsuit were uninsured until "some time" after he filed his law suit.
Although this case involves uninsured motorist benefits, the following excerpt regarding liability coverage is insightful:
44 Am.Jur.2d Insurance § 1474 (1969). This Court adopted the above statement in Thomas, supra. The same reasoning applied above to liability coverage can be applied to the present uninsured motorist situation, in which Burgess had no immediate knowledge or reason to believe that the defendants in his lawsuit were uninsured. In fact, generally, the insured under uninsured motorist coverage is in a different position than the insured under liability coverage and, arguably, should be entitled to greater leniency in determining the reasonableness of delay in giving notice. One authority differentiates between liability insureds and uninsured motorist insureds in this way:
8C Appleman, Insurance Law and Practice § 5083.35 (1981). Appleman notes further that because of this distinction, some jurisdictions allow lack of prejudice to the insurer to be considered as bearing on reasonableness for delay in uninsured motorist cases, and other jurisdictions even require a showing of prejudice by the insurer before it is excused from paying. This differs from liability coverage, in regard to which prejudice to the insurer is not required by the majority of jurisdictions, and is not allowed to bear on reasonableness of delay in Alabama. Thomas and Pharr, supra.
This Court has not squarely addressed whether prejudice to the insurer should be a consideration in uninsured motorist cases. As we have stated, Thomas and Pharr dealt with liability coverage only. The above discussion and excerpts, however, illustrate the difference between the two types of insurance as far as reasonableness of delay is concerned. We now hold that in uninsured motorist insurance cases, unlike liability insurance cases, prejudice to the insurer is a factor to be considered, along with the reasons for delay and the length of delay, in determining the overall reasonableness of a delay in giving notice of an accident. In the typical case, the insured must, at a minimum, put on evidence showing the reason for not complying with the insured's notice requirement. This prerequisite satisfied, the insurer may then demonstrate that it was prejudiced by the insured's failure to give timely notice. If the insurer fails to present evidence as to prejudice, then the insured's failure to give notice will not be a bar to his recovery. When the insurer puts on evidence of prejudice, however, the reasonableness of the failure to give notice then becomes a question of fact for a jury to decide.
We emphasize that the use of prejudice as bearing on reasonableness of delay applies only to uninsured motorist cases. Those situations dealing with liability coverage are still governed by Thomas and Pharr, supra.
Applying the above principles to the present case, we hold that the trial court was incorrect in granting summary judgment in favor of the insured. Burgess presented evidence of his reasons for delay, and the insurer, undoubtedly relying on existing case law, failed to show it was prejudiced by the delay. In view of our holding today, this cause must be remanded to allow the insurer the opportunity to submit evidence on the question of prejudice. If such evidence is put on by State Farm, then a jury question is presented and summary judgment is therefore precluded.
Burgess's insurance policy also required that he send State Farm a copy of the complaint filed against the uninsured motorist immediately upon commencement of the action. Burgess never sent such a copy to the company. State Farm relies on Almeida v. State Farm Mutual Insurance Co., 53 Ala.App. 175, 298 So. 2d 260 (1974), and Alabama Farm Bureau Insurance Co. v. Cook, 388 So. 2d 1001 (Ala.Civ.App. 1980), in support of its position that this failure to comply with that provision is fatal to Burgess's attempt to collect the policy benefits.
We distinguish Almeida and Cook from the present case. In both of those cases, the insured had not only commenced a lawsuit, but had already obtained a judgment against the uninsured motorist before notifying the insurance company and seeking to recover the uninsured motorist coverage benefits. The Court of Civil Appeals held that the insured's failure to send the suit papers to the insurer barred the recovery of insurance benefits.
In the present case, although Burgess never forwarded to State Farm a copy of the complaint he filed, the insurance company, over two years before the trial of his case, had notice of the accident and the fact that legal action was involved. We adopt the same position in regard to forwarding *638 suit papers as we did above in regard to giving notice of the accident, that is, that prejudice to the insurer is a factor in determining reasonableness. This applies only in the case of uninsured motorist coverage; Pharr, supra, remains the law in liability coverage cases.
Under the facts in this case, the trial court was incorrect in granting summary judgment for Burgess, as State Farm is entitled to put on evidence as to prejudice, and given that, the question of reasonableness of delay in giving notice or failing to forward suit papers becomes an issue of fact for the jury.
For the above-stated reasons, the judgment of the Circuit Court of Houston County is reversed, and the case remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
TORBERT, C.J., not sitting. | June 28, 1985 |
ef824708-b931-4a4d-ae9c-810bb74dbcf0 | Keeler v. Chastang | 472 So. 2d 1031 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1031 (1985)
Willie C. KEELER and Margaret R. Keeler
v.
Harriet E. CHASTANG and Ora D. Chastang.
84-90.
Supreme Court of Alabama.
June 7, 1985.
Larry E. Craven, Montgomery, for appellants.
H. Lewis Gillis, Montgomery, for appellees.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of the defendants in a suit filed by Willie C. Keeler and Margaret R. Keeler, claiming fraudulent failure to disclose information in a real estate transaction. We affirm.
The sole issue in this case is whether summary judgment was appropriate under the facts of this case, where the owner and real estate broker made no representations, either verbal or otherwise, concerning the subject matter of plaintiffs' complaint.
In the fall of 1982, plaintiffs, Willie C. and Margaret R. Keeler, sought the assistance of a real estate agent in finding a home. The Keelers visited the house, the subject of this litigation, three times while they were considering buying it. On the first visit, they inspected the house's interior. They specifically inspected the bathroom, bedrooms, and kitchen. On this visit, they observed the field lines from the septic tank and inquired concerning them several times. They also inspected the well house and the pumping system. At no point on this visit did they list any complaints to defendant Ora Chastang, the real estate broker, or to defendant Harriet Chastang, the owner. Neither did the defendants make any representations at that time to the Keelers.
On the second visit to the house, the Keelers inspected it inside and out. On this occasion they observed and discussed standing water, drainage, and the "fertilizer" out there. Also, at this time, no questions were asked of Ora Chastang, the real estate broker, or of Harriet Chastang. Neither were any representations made concerning any matter of which plaintiffs' suit complains.
The third visit was similar to the first two visits, and on the day of the third visit the Keelers closed the sale of the property. There were no representations concerning the subject matter of this suit made by the defendants at the closing, and no questions were asked concerning these matters at the closing.
*1032 Plaintiffs, in their suit, claim that shortly after they moved into the house they had problems with the plumbing; they claim that following a hard rainfall the sewage backed up into the house, and that the well pump malfunctioned and had to be replaced. Furthermore, the plaintiffs complained that the water from the well contained offensive material and had an offensive odor, and that the septic tank was not in good shape.
There is no dispute about the ultimate facts in this case, namely, that the residence sold to plaintiffs was not a new residence, and that defendants made no written or verbal representations concerning the plumbing, sewage system, well water, or septic tank. Plaintiffs' main argument to us is that the defects that are the subject of their complaint were latent and that because of the fact that these facts were uniquely within the knowledge of defendants, they were under an obligation to communicate them to plaintiffs by virtue of Code 1975, § 6-5-102, which proscribes the suppression of material facts which a party is under obligation to communicate.
We believe that the trial court did not err in granting summary judgment because of the decision of this Court in Ray v. Montgomery, 399 So. 2d 230 (Ala.1980), and the decision of the Court of Civil Appeals in Blankenship v. Ogle, 418 So. 2d 126 (Ala. Civ.App.1982). In the Montgomery case, suit was filed by the purchasers of a used residence on the ground that there had been misrepresentation on the part of the sellers as to termite damage. There was even evidence in that case that the owners had said the house was supported by hewn pine timbers, had good support, was "a nice house," and was solid and in good condition. In that case, we said:
The Court went on to say:
399 So. 2d at 233.
We are of the opinion that the facts in this case are even more compelling than those in Montgomery, supra. There was evidence before the court that the parties in this case were on equal footing. Mrs. Keeler, herself, is a former real estate agent and the Keelers were both raised in rural Bullock County and had drunk and bathed in well water. They certainly were aware of the possibility that sediment might be present in well water, and this awareness should have prompted further inquiry on their part.
We, therefore, are of the opinion, and so hold, that viewed in the light of our recent cases, the summary judgment in this case was proper. Cooper & Co. v. Brown, 440 So. 2d 1016 (Ala.1983); Marshall v. Crocker, 387 So. 2d 176 (Ala.1980); Blankenship v. Ogle, 418 So. 2d 126 (Ala.Civ.App.1982).
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | June 7, 1985 |
6bae48e1-fbc3-48ad-b7b4-3c851ee9615d | Davis v. Davis | 474 So. 2d 654 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 654 (1985)
H. Leroy DAVIS
v.
Bishop E.D. DAVIS.
84-54.
Supreme Court of Alabama.
June 28, 1985.
*655 Robert S. Edington, Mobile, for appellant.
Peter F. Burns of Morgan & Burns, Mobile, for appellee.
JONES, Justice.
This is a fraud case that originated in the Mobile Circuit Court. After a trial on the merits, the jury returned a verdict for Plaintiff/Appellee Bishop E.D. Davis and awarded him $87,500. Defendant/Appellant H. Leroy Davis appeals to this Court, alleging three errors in the trial below: 1) that the trial court improperly admitted evidence of a similar representation made by Defendant in another transaction; 2) that the trial court improperly sustained Plaintiff's hearsay objection to the testimony of one of Defendant's witnesses; and 3) that Defendant was denied due process because he was not served with copies of several pleadings and other documents.
We address in turn each allegation of error and include only those facts relevant and necessary to our discussion of each issue.
Defendant first argues that the trial court committed reversible error by allowing one of Plaintiff's witnesses to testify about a similar representation made to him by Defendant during a different transaction. Specifically, Defendant argues that this similar representation occurred in a transaction too removed in time from any representation he made to Plaintiff during their transaction to be of any probative value.
Indeed, our evidentiary rule of "similar representations," as set forth in C. Gamble, McElroy's Alabama Evidence § 70.03(1) (3d ed. 1977), states:
In the instant case, Defendant first made fraudulent representations to Plaintiff in 1972. Plaintiff's witness testified that the Defendant made similar representations to him in a transaction that occurred in 1981 or 1982. Yet, in ruling that this witness's testimony was admissible, the trial judge stated:
We agree with the trial court's characterization of the instant conduct as a "continuing type of fraud." Defendant's first representation to Plaintiff occurred in 1972, but Defendant made other representations to Plaintiff over a period of several years in order to conceal and perpetuate his fraud. Indeed, Plaintiff did not discover the fraud until 1981. Moreover, "[w]hether or not the offer of evidence will be denied on the ground of remoteness is a question to be decided by the trial court in the exercise of sound discretion, and such ruling by trial court will not be revised on appeal unless it is plain that error was committed." Roan v. Smith, 272 Ala. 538, 541, 133 So. 2d 224, 227 (1961). We find no abuse of discretion in the trial judge's allowance of this witness's "similar representation" testimony.
Defendant bases his next allegation of error on the trial court's sustaining Plaintiff's hearsay objection to the testimony of one of Defendant's witnesses. Defendant argues that the testimony, though hearsay, was properly admissible by an exception to the hearsay rule.
The relevant portion of the record reads as follows:
Assuming, without deciding, the correctness of Defendant's argument that this witness's testimony is admissible by an exception to the hearsay rule, Defendant has not preserved any error for us to review. Defendant made no offer of proof as to the substance or relevancy of the witness's testimony, and "[w]hen the question does not show on its face the answer that will be given, and that such would be relevant, there must be an offer of proof made for appeal purposes." C. Gamble, supra, at § 425.01(4). See, also, A.R.Civ.P. 43(c); Bessemer Executive Aviation, Inc. v. Barnett 469 So. 2d 1283 (Ala.1985). In a case directly on point, this Court stated:
We note that after failing to make an offer of proof when the trial judge sustained the Plaintiff's hearsay objection, Defendant did in his motion for a new trial file an affidavit detailing the witness's expected testimony. Such an attempt, however, is insufficient as an offer of proof to preserve any alleged error, because "[a]t the moment an objection is sustained to a question propounded to a witness, the party asking the question should state to the court the answer expected from the witness in order for the court to determine whether or not the expected answer is admissible." C. Gamble, supra, at § 425.01(5). Thus, the Defendant having failed to preserve any error for us to review, his second argument is also without merit.
Each of the matters raised under Appellant's third allegation of error (i.e., failure of notice as to certain documents and pleadings) was raised for the first time by way of post-judgment motion. The law does not permit a litigant with knowledge of previously unserved pleadings and documents to go to trial, gamble on a favorable outcome at the hands of the jury, and then, if he loses, raise this deficiency for the first time on a post-trial motion for a new trial. See, generally, 4 C.J.S. Appeal & Error § 268 (1957). Moreover, six of the unserved items were letters and pleadings that Appellant's co-defendant, Gulf Federal, neglected to serve on its co-defendant, this Appellant. These included, for example, a counterclaim by Gulf Federal against the Plaintiff. Therefore, because the relationship between these co-defendants was that of principal and agent, and because they were united in their effort to disprove Plaintiff's allegation of fraud, we reject the contention of prejudice to the substantial rights to this individual Defendant.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur. | June 28, 1985 |
4f6ab14d-e67e-4ee8-a551-59afaa4db2d3 | Lemmond v. Sewell | 473 So. 2d 1047 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1047 (1985)
Peggy LEMMOND, Executrix of the Estate of Richard D. Lemmond, Deceased
v.
John B. SEWELL; J.T. Smith; Stephen Branning; and Robert W. Peete.
84-635.
Supreme Court of Alabama.
June 21, 1985.
*1048 Thomas M. Di Giulian, Decatur, for appellant.
John S. Ley and William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellees.
SHORES, Justice.
The single issue presented by this appeal is whether the action alleged in the plaintiff's complaint survived the death of plaintiff's decedent under § 6-5-462, Ala.Code 1975. If it sounds in contract, it does; if it is actually a tort claim, it does not.
Plaintiff Peggy Lemmond, as executrix of the estate of Richard D. Lemmond, deceased, brought this action against the four defendants, all of whom are medical doctors.
She alleges that each defendant physician "impliedly contracted, undertook, promised or agreed" to provide professional medical care and that each "in violation of said implied contract" failed to provide such medical treatment, causing the plaintiff's decedent to suffer physical and mental pain, for which she seeks damages.
The trial court granted the defendants' motion to dismiss, and plaintiff appeals. We affirm.
Plaintiff concedes that the claim is barred if it sounds in tort, because it was not filed before Richard Lemmond died. Section 6-5-462, Code 1975, provides that
Thus, if the claim stated in the complaint is a tort claim, it will not lie, having not been filed before Richard Lemmond's death. McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So. 2d 486 (1963).
The action is not one for wrongful death, but one seeking recovery for damages resulting from the defendant physicians' breach of an alleged implied promise to render medical treatment to Richard Lemmond.
In Berry v. Druid City Hospital Board, 333 So. 2d 796 (Ala.1976), the Court observed that the law does not imply a contract to exercise due care in the delivery of medical services by a hospital, but does *1049 impose a duty to do so, the breach of which gives rise to a tort action. The same is true of physicians. Specifically, the Court held:
333 So. 2d at 799 (emphasis in original).
We cannot distinguish between a hospital and a physician in this regard. The law exacts from each a duty to exercise due care in the delivery of medical treatment. It does not imply a contract to do so. If either breaches this duty, resulting in injury to another, a tort claim, but not a contract claim, arises.
In Green v. Hospital Bldg. Authority of City of Bessemer, 294 Ala. 467, 470, 318 So. 2d 701, 704 (1975), we said:
The law implies a duty on the part of a physician to exercise due care; it does not imply a promise on his part to do so. The breach of that duty is actionable in tort, not in contract, and one cannot circumvent these legal restrictions where, as here, it is apparent that a tort action has been stated. Its character is not changed by labeling the action one for breach of an implied contract, nor does the allegation that the defendants "impliedly contracted... or agreed to treat ... and care for," etc., make it so. In Green, supra, we also said:
294 Ala. at 470, 318 So. 2d at 704.
The Court went on to say that the matter of contracts implied in fact was not involved in Green. Neither is it involved here. We hold that the law does not imply a promise on the part of a physician to use due care in treating a patient. Whether, under particular circumstances, a promise may in fact be implied, we do not decide, for that is not the case before us.
See, also, Brown v. Schultz, 457 So. 2d 388 (Ala.1984).
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX and JONES, JJ., concur.
BEATTY, J., concurs specially.
BEATTY, Justice (concurring specially):
Although I continue to hold the view expressed in my dissenting opinion in Bonds v. Brown, 368 So. 2d 536 (Ala.1979), I recognize that the majority does not share that view. Therefore, I will no longer persist in dissent. | June 21, 1985 |
f5eb10d1-f177-4565-99d6-e09f39a342f5 | Industrial Chemical v. Hartford Acc. & Indem. | 475 So. 2d 472 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 472 (1985)
INDUSTRIAL CHEMICAL & FIBERGLASS CORP., A Corporation,
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, A Corporation, et al.
No. 83-1244-CER.
Supreme Court of Alabama.
June 21, 1985.
Rehearing Denied August 23, 1985.
*473 Don B. Long, Jr. and Thomas E. Walker of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.
T. Thomas Cottingham, Julia Smeds Stewart, and F.A. Flowers III of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellees.
*474 PER CURIAM.
The issue presented by these certified questions from the United States District Court, Northern District of Alabama, is whether Hartford Accident & Indemnity Company is obligated under the terms of its policy to defend Industrial Chemical & Fiberglass Corporation.
On July 6, 1980, Terry D. Chandler and Dewey Edward Ensley, employees of J.M. Foster, Inc., were working within the line and scope of their employment repairing cracks in the floor of a fiberglass storage tank located at an acid regeneration plant in Fairfield, Alabama. The repair process required the use of certain chemicals, particularly methyl ethyl ketone peroxide (MEKP), a catalyst which is mixed with a promoter, cobalt naphthenate, to cause the polyester resin placed over fiberglass matting to gel and become hard. The MEKP, which was still in its original container, was placed inside a galvanized metal bucket and lowered into the tank where Chandler and Ensley were working. As a result of cobalt contamination, the MEKP decomposed, began to smoke, and erupted into flame. Both Chandler and Ensley suffered severe burns, which resulted in their deaths.
The MEKP was manufactured by Reichhold Chemicals, Inc. (Reichhold) and distributed by Industrial Chemical & Fiberglass Corp. (Industrial Chemical). Chandler and Ensley's widows and children brought wrongful death actions against Reichhold and Industrial Chemical, and based their claims on negligence, breach of warranty, and the Alabama Extended Manufacturer's Liability Doctrine. Thereafter, Industrial Chemical brought a declaratory judgment action in the United States District Court for the Northern District of Alabama, seeking a determination that Hartford Accident & Indemnity Company (Hartford) is obligated to defend it in the wrongful death actions based upon certain provisions in an insurance policy issued by Hartford to Reichhold. Those provisions are as follows:
to which this insurance applies, caused by an occurrence, if the bodily injury or property damage is included within the completed operations hazard or the products hazard, and the company shall have the right and duty to defend any suit brought against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent ...
"`bodily injury' means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom;
Industrial Chemical was one of those designated as a vendor within the meaning of the Additional Insured Vendor's Broad Form Modified provision; as such, it sought coverage under that provision. Hartford, however, denied coverage to Industrial Chemical under the policy, and both sides moved for summary judgment.
It was Hartford's position in the federal court, as well as here, that the coverage with respect to the vendor does not apply to bodily injury arising out of repair operations. It argues that since the employees were engaged in a repair operationrepairing the tankthe coverage offered by the vendor's endorsement is excluded. Industrial *476 Chemical counters this argument by asserting that the "arising out of" phrase, as it appears in the exclusion, "should be interpreted to require Hartford to prove that the repair operations caused the bodily injury in order to invoke the exclusion to defeat coverage."
Because these were the respective positions of the parties, it is obvious why the federal court framed the questions to us as follows:
This Court consented to answer the certified questions and granted oral argument.
It is apparent from the questions that both the parties and the federal court assumed that if the bodily injury occurred while the person was engaged in a repair operation of any kind, the exclusion expressed in paragraph 1(B)3 applied. The court then asked, still assuming that the exclusion applied to any kind of repair operation, whether the exclusion would likewise apply whether the repair operation were the cause of the injury.
We do not read the exclusion to apply to all repair operations and, therefore, address the issue which is obviously presented by the questions, viz.:
As we read the endorsement, Industrial Chemical is covered under the policy, and the exclusion contained in 1(B)3 refers not to repair operations generally, but to repairs to the product itself. The fact that the deceased employees were engaged in "repair operations" on a storage tank while using the manufacturer's product, sold in its original form by the vendor, does not bring it within the exclusion. A fair reading of the vendor's endorsement demonstrates the correctness of this position. It is obvious that the vendor's endorsement was designed to provide coverage to a vendor of an insured's product except where bodily injury or property damage arises out of a demonstration (of the product), installation (of the product), servicing (of the product), or repair operations (on the product). Coverage is afforded where such operations, i.e., demonstration (of the product), installation (of the product), or repair operations (on the product), are performed at the vendor's premises in connection with the sale of the product.
Stated differently, the endorsement affords coverage to the vendor of the named insured's product, but excludes coverage where bodily injury arises out of the demonstration, installation, servicing, or repair of the product, except where those activities take place on the premises of the vendor in connection with the sale of the product.
It is fair to hold the manufacturer (and its insurer) liable for bodily injury caused by a defect in the product, even though the product has been changed, if the injury was not caused by the change.
It is equally fair to hold the manufacturer or its carrier liable for bodily injury caused by a defect in the product, even though the product is undergoing demonstration, installation, servicing, or repair, if these activities did not cause the injury.
There is nothing in this exclusion to remove from coverage an injury occurring after the sale of the product while the *477 product is being used for its intended purpose, whether or not that use involves repairs to something other than the product itself.
If we assume that facts are produced which bring the exclusion into operation, that is, facts showing a repair operation performed upon the product itself, then we would hold that in order to exclude coverage, Hartford must prove that the repair operation was the cause of the bodily injury suffered by the employees.
Several cases from other jurisdictions are cited by Industrial Chemical in support of its contention that Hartford must prove that the bodily injury arose out of repair operations. Sears, Roebuck & Co. v. Reliance Insurance Co., 654 F.2d 494 (7th Cir.1981); Sears, Roebuck & Co. v. Employers Insurance of Wausau, 585 F. Supp. 739 (N.D.Ill.1983); Mattocks v. Daylin, Inc., 452 F. Supp. 512 (W.D.Pa.1978), affirmed, 614 F.2d 770 (3d Cir.1979); Sears, Roebuck & Co. v. Zurich Insurance Co., 299 F. Supp. 518 (N.D.Ill.1969); Senco of Florida, Inc. v. Continental Casualty Co., 440 So. 2d 625 (Fla.Dist.Ct.App.1983).
In all of these cases, the exclusion concerned either changes made in the product (of the insured) or a product (of the insured) which was used as an ingredient of another thing.
In Mattocks, Sullcraft Manufacturing Co., the vendor of a pair of boys' cotton pajamas which ignited and injured a minor plaintiff, sought a judgment declaring that it was entitled to be defended by I.N.A., the insurer of the manufacturer of the cloth used in the pajamas (Dan River, Inc.).
The existing policy of insurance between I.N.A. and Dan River contained a vendor's endorsement similar to the one presently at issue, which purported to provide coverage to vendors of Dan River's product. The exclusion in that policy was as follows:
452 F. Supp. at 514.
I.N.A. opposed the declaratory judgment action by contending that the above exclusion was clearly intended to exclude vendors who acquired materials from Dan River to become component or integral parts of products manufactured by those vendors, and that, by fashioning the material purchased into pajamas, Sullcraft had changed the physical form of the material and called into play the exclusion.
The United States District Court for the Western District of Pennsylvania disagreed and stated:
452 F. Supp. at 515.
Similarly, in Reliance Insurance Co., the Seventh Circuit Court of Appeals held that an exclusion almost identical to the one in Mattocks did not exclude coverage of a vendor (Sears, Roebuck & Co.) which purchased cloth from a manufacturer (Riegel Textile Corp.), had it sewn into slacks, labeled, and repackaged, and which, after the slacks caught fire and killed a girl, sought coverage under the vendor's endorsement of Riegel's insurance policy with Commercial Union Insurance Company. The exclusion therein provided:
654 F.2d at 496.
In rejecting the applicability of the exclusion, the court adopted and expounded upon the reasoning expressed in Mattocks, stating:
"The first category of exclusions in Exclusion 1 excludes injuries arising out of specified changes. This language requires a nexus between the changes and the injuries. As the Mattocks court discussed, this language comports with principles of fairness. It would be unfair to hold a manufacturer responsible for injuries arising out of changes made after the product left the manufacturer's control. But Commercial argues that the second category of exclusions in Exclusion 1 need have no nexus requirement between the changes and the injuries. Commercial argues that the second category of exclusions should be read to exclude coverage of injuries arising out of products which have been `labeled or relabeled,' or used as a `part' of any other thing regardless of whether there was any connection between the injury and the relabeling or use as a part.
"The problem with Commercial's argument is that it proves too much. Riegel sold the fabric to Sears to become slacks with the Sears' label. If the mere labeling or use as a `part' of the finished slacks could defeat coverage of any defect in the fabric itself, then the vendor's insurance covering Sears could not have been worth the piece of paper on which it was printed. The vendor's endorsement would become a nullity. As the Mattocks court said, discussing the identical language:
452 F. Supp. at 516.
654 F.2d at 497-499.
The same result was reached in Employers Insurance of Wausau, supra, in which the court, citing Reliance Insurance Co., held that an exclusion contained in a vendor's endorsement excluding from coverage "injuries arising out of any act by a vendor which changes the condition of the product," applied only to injuries for which there was proven a causal connection with the change made by the vendor. Employers Insurance of Wausau, supra, at 745.
These cases involved fact situations where the vendor made changes or incorporated the insured's product into another product, thus falling within the exclusion. The courts held, however, that the bodily injury which occurred was covered unless it arose out of the change made by the vendor. Each court held that the changes in form admittedly made by the vendor must also cause the injuries before the coverage of vendor is excluded.
However, as we read the exclusion in the policy involved in this case, it simply does not apply to the repair operations on the tank being worked on by these employees. There was no repair operation on the insured's product; thus, the exclusion has no application to the facts in this case, as stated to us in the certification.
If, however, facts are produced which would make the exclusion applicable, then, in order to avoid liability for bodily injury, Hartford must show that the bodily injury arose out of the repair operation.
CERTIFIED QUESTIONS ANSWERED.
TORBERT, C.J., and JONES, ALMON, SHORES and ADAMS, JJ., concur.
MADDOX, FAULKNER, EMBRY and BEATTY, JJ., concur specially.
MADDOX, Justice (concurring specially).
I concur in the result reached. The majority holds that "the exclusion in 1(B)(3) refers not to repair operations generally, but to repairs to the product itself." (Emphasis added.) I do not read the policy in this manner.
I do not believe that a chemical, the product in this case, can be repaired. Consequently, I think the words "repair operations," as they are used in the policy, refer to operations in which the chemical is being used instead of operations in which it is being repaired. I recognize that if the product were something other than a chemical, the construction placed on the words "repair operations" by the majority might apply, but I do not believe that construction should apply to the product involved in this case.
FAULKNER, EMBRY and BEATTY, JJ., concur. | June 21, 1985 |
edf075ae-8c61-4642-a18f-5ffd46e3ba27 | Whitfield v. Murphy | 475 So. 2d 480 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 480 (1985)
Tina WHITFIELD, etc., et al.
v.
Henry MURPHY, etc., et al.
83-1294.
Supreme Court of Alabama.
June 21, 1985.
Rehearing Denied August 23, 1985.
*481 Marion F. Walker, Birmingham, for appellants.
*482 William H. Atkinson of Fite, Davis, Atkinson & Bentley, Hamilton, for appellees.
JONES, Justice.
Because, during the pendency of this appeal, Appellants effected a settlement with the City of Hamilton (not a party to this appeal), which settlement, on behalf of the minor Plaintiff (Tina Whitfield), was approved by the court and judgment entered accordingly and satisfied by payment and receipt thereof, the appeal of this cause as to Whitfield is mooted and it is hereby dismissed. Butler v. GAB Business Services, Inc., 416 So. 2d 984 (Ala. 1982); Maddox v. Druid City Hospital Board, 357 So. 2d 974 (Ala.1978).
We do not agree with the Appellees' contention, however, that the settlement between the adult Plaintiff, Mavis Chambliss (mother of minor Plaintiff Whitfield), and the City also requires a dismissal of Chambliss's appeal. Unlike the settlement on behalf of the minor Plaintiff, no judgment was necessary to validate the settlement agreement executed by the City and the adult Plaintiff, Ms. Chambliss. That settlement agreement, by its explicit terms, preserved the mother's separate claims and actions pending against the two police officers (Appellees herein).
The appeal on behalf of Ms. Chambliss presents a single issue: Whether the trial court erred in rejecting Chambliss's offered amendment, stating a claim for false imprisonment, which was filed more than one year after the incident made the basis of that claim. Stated another way, because her original derivative action claim was timely filed, does Chambliss's offered amendment, claiming false imprisonment, relate back to the filing of the derivative action claim so as to overcome the statute of limitations defense? We hold that it does; therefore, we reverse and remand for a new trial.
A brief statement of the case is essential to our treatment of the dispositive issue. On May 11, 1983, minor Plaintiff Whitfield, "suing by next friend and mother Mavis Chambliss," filed a complaint in circuit court for false imprisonment arising out of an incident which occurred on November 27, 1982. Paragraph "4" of this original complaint, on behalf of the minor, alleged in part that "[Officer Murphy] thereupon placed Mrs. Chambliss and Plaintiff in a jail cell." By amendment on June 3, 1983, Chambliss, as a party plaintiff, stated a claim for the medical expenses incurred as a result of the alleged injuries suffered by her daughter Whitfield. Whitfield, in this same pleading, amended her complaint to add two counts for the alleged violation of her civil rights. Appellees' motions to dismiss the complaint and the amended complaint were denied and the parties proceeded with discovery in preparation for trial.
On April 10, 1984, Whitfield's motion for a continuance was denied, and the jury was selected on April 11, 1984, and the trial began. On April 12, 1984, before the trial resumed, Chambliss filed a "Motion for Leave to Amend Complaint as Amended," alleging a cause of action for her own false imprisonment on November 27, 1982. The trial court granted Appellees' and the City's motion to strike this proffered amendment. On April 13, 1984, the court granted the City of Hamilton's motion for directed verdict, but denied similar motions filed by the Appellees. On April 16, 1984, the jury returned a verdict in favor of all remaining defendants (Appellees), and judgment was entered thereon. Plaintiffs' motions for judgment notwithstanding the verdict and for new trial were denied.
Rule 15 of the Alabama Rules of Civil Procedure provides, in part:
Chambliss's final offer to amend the complaint included a claim for her own false imprisonment allegedly occurring during the same incident upon which Whitfield's *483 claims are based. Appellees claim that to allow this amendment would result in substantial prejudice to their case. We disagree. Where, as here, the proffered amendment would
Appellees' argument of prejudice to their case is further weakened by the averments of the original complaint which placed Appellees on notice that the minor plaintiff had been imprisoned along with her mother, Mavis Chambliss.
Similarly, the offered amendment properly related back to both the May 12, 1983, complaint and the June 3, 1983, amendment under Rule 15(c). The claim for Chambliss's false imprisonment arises out of the same "transaction or occurrence" set out in those two initial pleadings. See McClendon v. City of Boaz, 395 So. 2d 21 (Ala. 1981).
Although not essential to our holding, another well-established principle aids in and is consistent with our rationale. This is the principle of law that requires a party to state in one lawsuit all of the claims, including all of the elements of damages, arising out of the same facts and against the same parties. Price v. Southern Railway Co., 470 So. 2d 1125 (Ala. 1985); Sessions v. Jack Cole Co., 276 Ala. 10, 158 So. 2d 652 (1963).
Where, as here, Chambliss, pursuant to A.R.Civ.P. 20 (the permissive joinder rule), amended the pending suit on behalf of her minor daughter to include her derivative action claim, any additional claim on her own behalf growing out of this same transaction had to be filed by way of amendment to the pending derivative action suit. This is true, independent of the time limitation issue. But where Chambliss seeks to amend more than one year from the date the cause of action arose, the relation-back theory must be tested in the context of the one-lawsuit concept established in Sessions.
Having found that the instant circumstances fall squarely within the Rule 15(c) relation-back theory, we hold that the trial court erred in granting the Appellees' motion to strike Chambliss's offered amendment.
It should be noted by way of conclusion that the instant holding in no way conflicts with Dean v. Sfakianos, 472 So. 2d 1009 (Ala.1985), upholding the trial court's refusal to permit an amendment after trial to "bring in the corporation itself" as a party plaintiff. There, we found that the trial court did not abuse its discretion to disallow the amendment pursuant to Rule 15(b). The relation-back doctrine of Rule 15(c), however, is an objective standard and its application under the prescribed circumstances is nondiscretionary.
As to the appeal on behalf of Tina Whitfield, who sues by her next friend and mother, the appeal is dismissed. As to the appeal by Mavis Chambliss, the judgment appealed from is reversed and the cause is remanded.
APPEAL DISMISSED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur. | June 21, 1985 |
c1c3de1f-2756-4f71-88e5-6c5f3bd6e0bf | Ex Parte Ellard | 474 So. 2d 758 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 758 (1985)
Ex parte Richard Mark ELLARD.
(re Richard Mark Ellard v. State of Alabama).
83-1352.
Supreme Court of Alabama.
July 3, 1985.
*759 Ralph I. Knowles, Jr., Tuscaloosa, and Ira A. Burnim, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for respondent.
Frank D. McPhillips of Maynard, Cooper, Frierson, & Gale, Birmingham, for amicus curiae Johnny Wayne Wade.
MADDOX, Justice.
We issued the writ of certiorari in this case in order to review the Court of Criminal Appeals' decision, 474 So. 2d 743, upholding the Board of Pardon and Parole's revocation of Richard Mark Ellard's parole. We affirm.
A complete statement of the facts is contained in the opinion of the Court of Criminal Appeals, but we set out a sufficient set of facts to support the reasons why we affirm.
Mark Ellard was incarcerated in the Alabama prison system pursuant to a life sentence for murder and a twenty-year sentence for assault with intent to murder. On December 8, 1980, parole officer Thomas Tate evaluated the social, criminal, and custodial record of Mark Ellard and recommended that he be paroled. The board met with Ellard on December 15, 1980, interviewed him, and later reviewed the parole board file. In addition to the parole evaluations and social histories made at the time of his sentencing, the file included reports on the nature of his crimes and his activities on escape in 1977, as well as documents from classification officers, work supervisors, and the warden of Holman Prison recommending that Ellard be paroled.
Based upon its investigations, evaluations, and interview, the board issued Ellard a certificate of parole. Additional factors established by petitioner's Ala.R. App.P. 39(k) statement shall be considered below in light of their relevance to the issues presented.
In the Court of Criminal Appeals' opinion, Judge Patterson, writing for the court, set forth a detailed history of the establishment of the Board of Pardons and Paroles. He also set forth the applicable law for reexamination of the grant of parole by administrative boards.
The critical questions raised in this petition are: (1) Did Ellard have a liberty interest? and (2) Could the parole board, based on the record in this case, revoke the parole?
The Court of Criminal Appeals correctly determined that Alabama's parole statutes do not create a "liberty interest" that cannot be revoked. Andrus v. Lambert, 424 So. 2d 5 (Ala.Crim.App.1982); Thomas v. Sellers, 691 F.2d 487 (11th Cir. 1982); Johnston v. Alabama Pardon and Parole Board, 530 F. Supp. 589 (M.D.Ala. 1982). In Thomas the Middle District held as follows:
*760 When the statute is framed in discretionary terms there is not a liberty interest created."
Although Ellard did not have a constitutionally protected liberty interest, nevertheless, we recognize that Ellard was entitled to a due process hearing; here, however, as the Court of Criminal Appeals found, Ellard was accorded substantial procedural safeguards in accordance with the mandates of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1971).
Can a parole be revoked in the absence of a showing that the parolee violated a condition of his parole? There is a split of authority on this issue. In Ex parte Urbanowicz, 24 F.2d 574 (D.Kan.1928), the Court held that a parole granted to a United States prisoner could not be cancelled or rescinded except for some offense committed by him subsequent to the date of the parole which constituted a violation of the terms of the parole.
Courts have reached a contrary conclusion, however, under statutes which confer more extensive authority on the parole board or commission. In Johnson v. Walls, 185 Ga. 177, 194 S.E. 380 (1937), the Georgia Supreme Court held that the parole board did not exceed its power in revoking a parole when the prison commission which granted the parole mistakenly thought that the prisoner had served several months of his sentence instead of, in actuality, only two days of his sentence. See also In re Tobin, 130 Cal. App. 371, 20 P.2d 91 (1933).
This issue of whether a parole board can revoke a parole was addressed most recently in Tracy v. Salamack, 440 F. Supp. 930 (S.D.N.Y.1977), modified and affirmed, Tracy v. Salamack, 572 F.2d 393 (2d Cir. 1978).
The Tracy decision, although involving work release inmates and New York statutes, is strikingly similar to this case. We quote the second opinion in that case in its entirety for a complete understanding of the facts and the laws, omitting only the footnotes:
Id. at 936.
572 F.2d at 394-397.
The Second Circuit Court of Appeals modified the preliminary injunction issued by the district court to read as follows:
572 F.2d at 397 (2d Cir.1978).
Although the Tracy court was interpreting New York statutes, we find that court's reasoning applicable to the situation at hand. In fact, in Tracy the Second Circuit found that New York amended its statutes to correct those situations in which "a convicted murderer, rapist or armed robber [was] too easily entitled to participate in work release." 572 F.2d at 396, n. 11.
The thrust of the Tracy decision, as we read it, is that a state can review a conditional release of a prisoner and revoke it if the prisoner is given a hearing accompanied by a written statement of reasons. Although not stated by the Tracy court, we believe the underlying rationale for the result reached there is that the public has an interest in protecting itself against the early or conditional release of prisoners who might pose a threat to the community. We recognize that in Tracy this public interest was spelled out in amendments to New York law governing work release inmates, but we do not believe that a parole board, like Alabama's, could not reexamine an inmate's past record and conclude that in granting parole it had failed to follow the public will, as expressed in the parole statutes.
We believe that a determination of whether a parole board can revoke a parole requires a balancing of the public interest against the interest of the prisoner in receiving the benefits of the parole granted to him. In balancing these interests, we must not, of course, be guided by public clamor or media interest, but by an application of the principles of law which delineate the public interest in granting paroles only to those found by the Board of Pardons and Paroles to be legally eligible for parole, and the prisoner's interest in being accorded his freedom if the Board in the exercise of its discretion determines that the prisoner is eligible. Here, there was great media interest and the attorney general, as the chief legal officer of the state, was of the opinion that Ellard should not have been paroled.
As we understand the opinion by the Second Circuit in Tracy, a board is not limited to a consideration of the events occurring after a parole is granted, but may reconsider the character of the offense and can reexamine the very basis on which parole was initially granted, and can determine that it did not follow the statutory scheme.
In Tracy, the prison commissioner was authorized to reexamine the record of work release inmates who were murderers, rapists, and robbers, and remove them from the program. The Court opined that "[d]ue *763 process requires a reevaluation by the commissioner of each participating inmate's eligibility in the light of the threat that the inmate presents to the security of the community,... taking into account his eligibility for parole, his past institutional record, the particular circumstances underlying the violent offense for which he is under sentence, and his previous temporary release record." 572 F.2d at 396-97.
The parole board is charged with the responsibility of determining who is eligible for parole. If it determines that it made a mistake in carrying out its duties, it is not powerless to rescind its actions, provided, of course, the prisoner is accorded his due process rights.
We hold that based upon the record before it and after a reexamination of all of the information, including the prisoner's eligibility for parole, his past institutional record, the circumstances underlying the violent offense for which he is under sentence, and his previous parole record, the board was authorized to determine that in the initial grant of parole, it failed to properly exercise its discretion in accordance with Alabama's statutory scheme; therefore, we find that the Board had authority to determine that an error was made on initial review of Ellard's eligibility and, after notice, hearing, and a reexamination of the pertinent facts, had the authority to revoke his parole. The judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and ADAMS, JJ., concur.
JONES, ALMON, EMBRY and BEATTY, JJ., dissent.
EMBRY, Justice (dissenting).
I respectfully dissent for the reasons set out below.
Initially, I am awestruck by the majority's incredible position that the powers of the Alabama Board of Pardons and Paroles under Code 1975, §§ 15-22-1, et seq., are to be interpreted by decisions of foreign courts, speaking to statutes enacted in foreign jurisdictions. With all due deference to New York, I fail to see how an interpretation of New York's temporary release program has any bearing on the ability of the Alabama Board of Pardons and Paroles to revoke a legally executed parole where the prisoner has already been released from custody. I would prefer to look to Alabama's statutory law.
Second, Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), leaves no doubt that, once released from prison, a parolee has a liberty interest which attaches, commanding a due process hearing before a revocation of that parole. Due process requires that a parolee be apprised of any violations of parole conditions before a hearing is held. In this case, Ellard was not notified of any violations, as there were none charged.
The writ of certiorari was issued in this case in order to review the Court of Criminal Appeals' decision upholding the Board of Pardons and Paroles' revocation of Richard Mark Ellard's parole. I would reverse.
The dispositive facts of this case are adequately set out in the opinion of the Court of Criminal Appeals. Additionally, petitioner properly submits an ARAP 39(k) statement, the pertinent provisions of which are summarized below.
Mark Ellard was incarcerated in the Alabama prison system pursuant to a life sentence for murder and a twenty year sentence for assault with intent to murder. On 8 December 1980, Parole Officer Thomas Tate evaluated the social, criminal, and custodial record of Mark Ellard and recommended that he be paroled. The Board met with Ellard on 15 December 1980, interviewed him, and later reviewed the Parole Board file. In addition to the parole evaluations and social histories made at the time of his sentencing, the file included reports on the nature of his crimes and his activities *764 on escape in 1977, as well as documents from classification officers, work supervisors, and the Warden of Holman Prison recommending that Ellard be paroled.
Based upon its investigations, evaluations, and interviews, the Board issued Ellard a Certificate of Parole. Additional factors established by petitioner's ARAP 39(k) statement shall be considered below in light of their relevance to the issues presented.
The essential issue presented by this case is whether the Board of Pardons and Paroles, upon reconsideration, may revoke a legally executed parole where the parolee has not violated any terms or conditions of that parole. To reach this issue, however, it is first necessary to determine whether the actions of the Board, in this case, constituted a legal issuance of Ellard's parole.
The Court of Criminal Appeals upheld the Board's revocation of Ellard's parole based on a finding that "certain substantial and legal evidence" pertaining to Ellard was not considered by the Board on its initial review. Therefore, the Court of Criminal Appeals concluded, under Code 1975, §§ 15-22-25 and 15-22-40, the Board's execution of Ellard's parole was null and void. In so finding, that court erred in its interpretation of the requirements of § 15-22-25.
Furthermore, the above section is supplemented by Code 1975, § 15-22-40, which states:
The State argues, and the Court of Criminal Appeals found, that the Board's action was null and void for failure to consider: (1) a psychological report on Ellard; (2) evidence of misconduct and criminal activity while Ellard was on escape in 1977; (3) *765 an escape attempt in 1971; and (4) considerable public opposition to Ellard's parole.
In Sellers v. Thompson, 452 So. 2d 460 (Ala.1984), this court found that the requirements of Code 1975, § 15-22-25, did not necessitate the review of a psychiatric report on all inmates to be considered for parole.
In contrast to Sellers, a psychological report on Ellard was in existence. Nevertheless, I do not read Code 1975, § 15-22-25, to require the physical examination of every extant document relevant to a prospective parolee. To so hold would be both to require an omniscient Parole Board and to question the legality of every current and future parole.
On this point I note that the Board considered the report of Parole Officer Thomas Tate, dated 8 December 1980, which catalogs Ellard's criminal offenses, sentences, and prison record. Also before the Board, inter alia, were the supplementary reports compiled by Parole Officer Frank Fendley, of Oneonta, Alabama, in September 1972; the report of Parole Officer Winfred Smithson of Jefferson County, Alabama, in November 1972; and the report of Georgia Parole Investigator Lee Robinson on 26 May 1976. Additionally, Ellard's file included reports on the nature of his crimes and activities while on escape in 1977, as well as documents from classification officers, work supervisors, and the warden of Holman Prison. Accordingly, I find the Board considered a complete investigation of Ellard's social and criminal record before granting him parole, and thereby satisfied the provisions of Code 1975, § 15-22-25.
Regarding the public opposition to Ellard's parole, I opine that public opinion is neither required by law to be considered by the Board, nor relevant in any way to a proper parole determination. In fact, the very genesis of Code 1975, §§ 15-22-1, et seq., is the intention to isolate the pardon and parole process from political concerns. See "Report of the Special Legislative Committee Investigating Pardons and Paroles", Special Session (1951).
On alternative grounds, the Court of Criminal Appeals found that the Board lacks the statutory authority to parole an inmate from an Alabama sentence where that prisoner is subject to a foreign jurisdiction's detainer for custody and sentencing. Therefore, that court concluded, the Board's action in paroling Ellard to Georgia's custody was null and void, warranting revocation. That is an erroneous conclusion.
As aptly pointed out by the amicus curiae, such a conclusion would base an inmate's eligibility for parole not upon the criteria established by the legislature under Code 1975, § 15-22-26, but, rather, upon the terms of a sentence imposed by a court in a foreign jurisdiction. There is no support for this proposition.
To the contrary, Code 1975, § 15-22-36(a), affirmatively vests the following powers in the Board:
Thus, unless there is a specific statutory exclusion, the Board has the authority to determine parole eligibility. Although the Court of Criminal Appeals implies to the contrary, Code 1975, § 15-22-27, does not exclude from parole consideration those inmates who may be subject to a detainer from another jurisdiction. That section merely grants to the Board certain powers in addition to its power to grant pardons and paroles. It provides that the Board may, at its option, transfer an inmate to another jurisdiction without paroling him from the sentence imposed by an Alabama court. It by no means prohibits or otherwise limits the Board from exercising its power to parole an inmate pursuant to Code 1975, § 15-22-36(a).
*766 In a collateral argument, the State contends Ellard was never paroled, but merely transferred to Georgia's custody pursuant to Code 1975, § 15-22-24(i). This is a frivolous argument, in that every relevant document, including a signed and sealed Certificate of Parole, indicates that Ellard was to be paroled, not transferred.
Based upon the foregoing, I would hold the petitioner was awarded a legally executed parole by the Board. It is undisputed that Ellard has not violated any of the conditions of that parole. Thus, I turn my attention to whether the Board, in the absence of any parole violations, is empowered to reconsider and revoke a legally executed parole after the inmate has been released.
There is no provision under Alabama law, the regulations of the Board, or the terms of petitioner's Certificate of Parole, authorizing the Board to reconsider a parole in the absence of any parole violation. Code 1975, § 15-22-32, provides for declaring a parolee delinquent, but only where "there is reasonable cause to believe that a prisoner who has been paroled has violated his parole." Furthermore, Code 1975, § 15-22-29, provides that a parolee may be liable for arrest and imprisonment after a violation of any parole condition. A statutory power to reopen and reconsider a parole after an inmate's release, however, can hardly be gleaned from the above code sections in the absence of any parole violations.
Neither do I find the Board vested with any inherent or implied power to reconsider paroles where no violation has occurred. Such a construction would be in clear abrogation of the restrictions set out in Code 1975, § 15-22-38, which states:
In any event, for the Board to now reopen and reconsider Ellard's parole, in the absence of any parole violations, and without authority under statute, regulation, or Certificate of Parole conditions, would be an act so arbitrary and capricious as to violate the due process clause of the United States Constitution. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); See Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
Accordingly, I would hold that the Board was without legal authority to reconsider a legally executed parole in the absence of any parole violations. Consequently, I would hold the Board's "revocation" of Ellard's parole is null and void. The judgment of the Court of Criminal Appeals is due to be reversed.
JONES, ALMON and BEATTY, JJ., concur. | July 3, 1985 |
42ef6055-4525-475d-8790-3b98df518183 | Dean v. Sfakianos | 472 So. 2d 1009 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1009 (1985)
Clarence DEAN
v.
Nick C. SFAKIANOS.
83-1257.
Supreme Court of Alabama.
June 7, 1985.
Peter J. Meredith, Birmingham, for appellant.
Dennis G. Pantazis, of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for appellee.
BEATTY, Justice.
This is an appeal by plaintiff, Clarence Dean, from a judgment for defendant, Nick Sfakianos, in Dean's action against Sfakianos for breach of contract. We affirm.
In 1980, Reynolds Fast Foods, Inc., was operating a restaurant known as Colonial Fried Chicken in a building located in Ensley and owned by Sfakianos. Plaintiff Clarence Dean and his wife, Carol Ann Dean, purchased all of the outstanding stock in the corporation. On or about February 1, 1980, Dean and his wife entered into a lease agreement with Sfakianos for *1010 the rent of the building then being occupied by Colonial Fried Chicken.
Reynolds Fast Foods, Inc., paid the rent on a monthly basis throughout 1980, and on or about January 4, 1981, Dean delivered a letter to Sfakianos expressing an intent to renew the lease for an additional year, i.e., from February 1, 1981, through January 31, 1982. Although the receipt of this letter was ultimately disputed, the trial court, during the ore tenus hearing, found that the lease had been renewed for one year.
Desiring to sell Reynolds Fast Foods, Inc., and Colonial Fried Chicken, Dean entered into an agreement with an Aldus Jones, whereby Jones agreed to purchase the restaurant business and equipment of Colonial Fried Chicken, subject to Sfakianos's approval of Jones as a tenant. After Sfakianos explored Jones's business and financial records, he concluded that Jones was not suitable as a subtenant and refused to sublet to him. Another prospective purchaser, James Reddell, was presented. After examining Reddell's business and financial background, Sfakianos also refused to sublet to Reddell.
Sfakianos, meanwhile, had terminated Dean's possessory interest in the leased premises; however, the parties began negotiations, the outcome of which was to allow Dean to remain in possession of the building until about October 14, 1981.
Subsequently, Dean brought this action against Sfakianos, alleging, inter alia, that the lease had provided him with a five-year option to renew, as well as with the right to sublet. Dean alleged that he and Sfakianos had renewed the lease for an additional year,[1] but that the latter had breached this agreement and terminated the lease unlawfully. Dean also alleged that Sfakianos had breached the lease by refusing to allow him to continue his going business and by refusing to allow him to sell it, thereby causing Dean to close his business at substantial financial loss.
Following the trial, held ore tenus without a jury, both parties rested, and arguments of counsel took place. During the course of those arguments with respect to any damage allegedly sustained by Clarence Dean, individually, Clarence Dean (through counsel) moved to amend his complaint by adding as plaintiffs Carol Dean and Reynolds Fast Foods, Inc. This motion was objected to by defendant's counsel. The trial court responded:
Having denied the motion to amend, and after having heard the conclusion of counsel's arguments, the trial court made findings of fact and entered a judgment, in pertinent part as follows:
(1) Whether the trial court erred in denying Dean's motion to amend; and
(2) Whether the trial court erred by not awarding damages to Clarence Dean as the real party in interest.
As to issue (1), the trial court did not err in denying the plaintiff's motion to amend. Although amendments are to be liberally granted, the trial court is given discretion in the exercise of that liberality. Thus, where the trial on the issues will be delayed or prejudice would result to the opposing party, the trial court may deny the leave to amend. Rule 15, A.R.Civ.P.; Stallings v. Angelica Uniform Co., 388 So. 2d 942 (Ala.1980). No abuse of that discretion is shown here. Plaintiff's theory throughout the trial was that the defendant *1012 had contracted with plaintiff personally and had breached that contract to the damage of the plaintiff individually. It was only during the exchanges of court and counsel at summation that plaintiff expressed a desire to amend in order to bring in the corporation itself and another stockholder. The trial court's observation, referred to above, disclosed recognition that such new parties would be calculated to inject new issues which would delay the immediate trial of the cause and involve belated discovery, and also apparently recognized that defendant would be unduly prejudiced by such additions, because of the likelihood that defendant was not then fully able to defend against the claims of the new parties. The record does not support any claim of an abuse of discretion in the denial of the amendment.
As to plaintiff's second contention, we must note that the trial court found an absence of proof that plaintiff himself had sustained any damage. The finding of a trial court sitting without a jury is accorded a strong presumption of correctness, and is not to be disturbed unless found to be clearly erroneous and against the great weight of the evidence. The record here supports that finding. Plaintiff Dean claimed damages for defendant's breach of contract. But the contract was not with Dean, but with the corporation. Dean was not the sole stockholder; moreover, under Rule 17(a), A.R.Civ.P., he does not appear to have been the real party in interest, nor did he sue here in a derivative action under Rule 23.1, A.R.Civ.P. And, finally, the trial court's conclusion on the prospect of damages for the failure of a sale of a business with a six-month lease, any such damage being at most uncertain under these facts, was permissible under the facts shown in the record.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] The lease was made for a term of one year "w/5 year renewal option at same rate." The trial court interpreted this language NOT to mean five one-year options. | June 7, 1985 |
e2113533-8ac6-4ea3-bb3d-919d482c5a7b | Isbell v. Alabama Power Co. | 477 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 281 (1985)
Jimmy ISBELL and Rebecca Isbell
v.
ALABAMA POWER COMPANY.
84-163.
Supreme Court of Alabama.
July 19, 1985.
Rehearing Denied September 20, 1985.
Stan Brobston, Bessemer, for appellants.
James A. Bradford of Balch & Bingham, and Jon Terry of Bains & Terry, Birmingham, for appellee.
MADDOX, Justice.
Jimmy and Rebecca Isbell appeal from a summary judgment granted in favor of Alabama Power Company (APCo) in a suit *282 for the wrongful termination of electric service.
The pertinent facts are as follows: During the summer of 1980, the Isbells lived in Hueytown, Alabama, and were receiving electric service from APCo. For two months the Isbells failed to pay their power bill, and in September of 1980, they moved to Cullman, Alabama, to reside with Rebecca's parents. On November 26, 1980, the Isbells filed a Chapter 7 petition in bankruptcy. The address listed for the Alabama Power Company was admittedly incorrect. On March 26, 1981, the United States Bankruptcy Court discharged all creditors listed in the petition.
In early 1983, the Isbells again moved to the Hueytown area and had electric service placed in Mrs. Isbell's name. On two occasions, APCo notified the Isbells by letter that an outstanding balance of $285.05 from a previous account had been transferred to their present account, and demanded payment. Shortly thereafter, the Isbells received another letter and Mr. Isbell went to APCo to explain his bankruptcy petition. He took with him a copy of the bankruptcy discharge, as well as other papers from the bankruptcy court, for APCo to review. Thereafter, he talked with employees of APCo, who told him that it was their position that the debt was still owed because APCo had not received legal notice of the bankruptcy. On March 15, 1983, electric service was discontinued. The Isbells filed a complaint on March 2, 1984, alleging that APCo had wrongfully disconnected their service, contending that the debt for which power was disconnected had been discharged in bankruptcy.
On May 17, 1984, APCo filed a motion for summary judgment with a supporting affidavit of G. Kendrick Kinman, Jr., credit manager of APCo. In his affidavit, Kinman stated that based on his personal knowledge and a thorough search of company records, APCo had no notice or knowledge of the Isbells' bankruptcy petition until Mr. Isbell showed it to an APCo employee in December 1982.
Instead of filing affidavits or counter-affidavits pursuant to Rule 56(f), Ala.R. Civ.P., the Isbells filed a request for admission, requesting that APCo admit to receiving the December 3, 1980, edition of the "Daily Commercial Journal." This publication contains various items of credit information, and this particular edition shows that Jimmy Isbell had filed a petition in bankruptcy.[1] In response to the Isbells' request for admission, APCo filed a motion to strike. APCo's motion for summary judgment was heard and judgment was entered in APCo's favor. APCo's motion to strike the request for admission was deemed moot upon entry of the summary judgment.
The Isbells appeal here, raising two issues. First, they contend that the trial court improperly granted summary judgment, since there was discovery pending which sought to elicit information on the issue of whether APCo had knowledge of their bankruptcy.
If APCo had knowledge of the discharge, the Isbells contend, then the debt was discharged and the subsequent termination of their power supply was wrongful.
The law pertaining to the scheduling of creditors by a bankrupt is set forth in Matter of Robertson, 13 B.R. 726, 728 (Bankr.E.D.Va.1981):
In Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 456-57 (6th Cir.1982), the Sixth Circuit Court of Appeals held:
In the instant case, as a matter of law, APCo was not "duly scheduled." Accordingly, the debt owed APCo by the Isbells would be discharged if, and only if, APCo had "notice or actual knowledge of the proceedings in bankruptcy" in time for proof and allowance. In this case, APCo would have been required to file its proof of claim within six months after the first date set for the first meeting of creditors. Rule 302(e), Rules of Bankruptcy Procedure.
The burden of proving "notice or actual knowledge" of the creditor is upon the bankrupt, as is stated in Matter of Robertson, supra:
Importantly, the bankruptcy court in Robertson held that mere constructive notice or imputed knowledge on the part of the creditor was insufficient as a matter of federal bankruptcy law to establish a discharge.
In summary, a creditor who is not "duly scheduled" with a correct address on a bankruptcy petition is excepted from the operation of a discharge, unless the creditor had notice or actual knowledge of the proceedings in bankruptcy in time for filing a proof of claim and allowance. Mere constructive notice or imputed knowledge of the bankruptcy proceeding is not sufficient, as a matter of law, to create a discharge.
Considered in the context of the applicable law regarding "duly scheduling" of creditors in a bankruptcy petition, APCo's motion for summary judgment, supported by the affidavit of its credit manager, G. Kendrick Kinman, Jr., was properly granted. It is undisputed that APCo was not duly scheduled on the Isbells' bankruptcy petition. Mr. Kinman's affidavit, which was based upon his personal knowledge and his review of company records, constituted undisputed evidence that APCo did not have notice or actual knowledge of the filing of the Isbells' petition. The Isbells never filed any counter-affidavits, or offered a scintilla of evidence that APCo had notice or actual knowledge of the filing of their bankruptcy petition. Since the sole material fact of actual knowledge vel non was undisputed, the trial court properly entered judgment in APCo's favor as a matter of law.
*284 In Hutchins v. State Farm Mutual Automobile Insurance Co., 436 So. 2d 819, 825 (Ala.1983), this Court stated as follows:
The Isbells complain that the trial court granted summary judgment without permitting them a sufficient opportunity to develop contrary facts. Specifically, they contend on appeal that the trial court should have allowed them to propound requests for admissions to APCo regarding the December 3, 1980, issue of the "Daily Commercial Journal" in order to attempt to establish "constructive knowledge" on the part of APCo of their bankruptcy petition. The Isbells cite two federal cases, Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir.1972), and Washington v. Cameron, 411 F.2d 705 (D.C.Cir.1969), for the general proposition that the party opposing a motion for summary judgment should be given a "fair opportunity" to conduct discovery to develop a factual basis for opposing the motion.
The problem with this argument is that mere proof of "constructive notice" or "imputed knowledge" would be insufficient, as a matter of federal bankruptcy law, to create a discharge of the improperly scheduled debt. Matter of Robertson, supra. Thus, even if the alleged fact of constructive notice were established by a properly filed request for admissions, such fact would be immaterial and would not prevent entry of summary judgment.
Finally, the Isbells contend that the affidavit submitted by APCo in support of its motion for summary judgment was insufficient in that it failed to comply with the mandates of Rule 56(e), Ala.R.Civ.P. Thus, the Isbells contend the trial court erred in granting summary judgment. We disagree.
We find that Kinman's affidavit clearly complies with the requirements of Rule 56(e). The affidavit states that he, as credit manager of APCo, receives bankruptcy petitions and is responsible for filing proofs of claim for APCo in bankruptcy cases. His testimony, which is based upon "personal knowledge and a thorough search of Company records," is that APCo neither received the Isbells' bankruptcy petition nor had "any knowledge or notice of the filing" of it. Kinman is competent to testify to these matters, and is, indeed, the appropriate APCo employee who, as its credit manager, would offer such testimony at trial.
The affidavit properly placed the fact of APCo's lack of notice or actual knowledge before the trial court, and the Isbells failed to come forward with evidence to refute it.
Based on the foregoing, the summary judgment entered by the circuit court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] Since only Jimmy Isbell's name appeared in the journal, the Isbells' argument of constructive notice logically should apply only to Jimmy Isbell. However, in light of our disposition of that argument, the omission of Rebecca Isbell's name becomes immaterial. | July 19, 1985 |
28d7aeff-1f96-4c2d-80cc-b89d5fc0ee4f | Young v. City of Gadsden | 482 So. 2d 1158 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 1158 (1985)
Johnny Lawrence YOUNG and Melissa Young
v.
The CITY OF GADSDEN, Alabama, a municipal corporation; Etowah Broadcasters, d/b/a WAAX Radio; Downtown Action Council of Gadsden; Phil Denson; Charles Gaston; Runt's Kart Sales, Inc.; Gadsden Budweiser Distributing Co., Inc.; American National Bank of Gadsden.
83-1247.
Supreme Court of Alabama.
June 28, 1985.
Rehearing Denied January 17, 1986.
Robert Wyeth Lee, Jr. of Wininger & Lee, Birmingham, for appellants.
George P. Ford of Simmons, Ford and Brunson, Gadsden, for appellee City of Gadsden.
Bert P. Taylor and Thomas S. Spires of Smith & Taylor, Birmingham, for appellee Etowah Broadcasters d/b/a WAAX.
Jack B. Porterfield, Jr. and William Dudley Motlow, Jr. of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee Downtown Action Council.
Clarence F. Rhea and Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellee Charles Gaston.
James R. Shaw and Charles H. Clark, Jr. of Huie, Fernambucq & Stewart, Birmingham, for appellees Runt's Kart Sales, Inc. and Phil Denson.
G. Thomas Yearout, Birmingham, for appellee Gadsden Budweiser Distributing Co.
William D. Russell, Jr., Gadsden, for appellee American Nat. Bank.
ADAMS, Justice.
This is an appeal from the Etowah County Circuit Court's grant of summary judgment in favor of all defendants and against plaintiffs, Johnny Lawrence Young and Melissa Young. We affirm.
The action arose out of injuries sustained by Johnny Young while he was operating his "go-kart" on a practice lap just prior to the start of the "Big WAAX Kart Grand Prix" road race. The race was scheduled to be held on September 11, 1983, in Gadsden, Alabama. The race course was laid out on the streets of Gadsden with the city's permission, and all the defendants had some connection with the race.
Upon his arrival in Gadsden, Young paid an entry fee of $30.00 and signed the following release:
After signing the release, Young drove a practice lap, and it was at this time that his kart struck a telephone pole, causing him to sustain head and bodily injuries.
Young and his wife filed suit on August 4, 1983, alleging that the defendants negligently or wantonly caused Young's injuries. Over the next eight months, all defendants filed motions for summary judgment, and on June 8, 1984, the trial court granted summary judgment in favor of each defendant. This appeal followed.
The sole issue for our review is whether the trial court erred in granting summary judgment in favor of all defendants because Young had signed a release from liability for injuries sustained in connection with the go-kart Grand prix.
Inasmuch as this Court has heretofore not been called upon to determine the effectiveness of a release from liability in the context of an automobile race, we have considered the decisions of our sister states, as well as federal decisions, and particularly the United States District Court decision in Gore v. Tri-County Raceway, Inc., 407 F. Supp. 489 (M.D.Ala.1974), wherein that court applied the law of Alabama to resolve the issue of the validity of such a release. In that case Charles Gore was killed as a result of a wreck during an automobile race, and his wife sued for damages based on negligence and breach of contract. The court stated that no Alabama case had been discovered concerning the specific issue, and then went on to say:
407 F. Supp. at 492. After having said this, the court granted defendant's motion for summary judgment.
Several cases have been decided since Gore in which courts from jurisdictions have held that releases from liability in the racing context are valid and are not inconsistent with public policy considerations. See Rhea v. Horn-Keen Corporation, 582 F. Supp. 687 (W.D.Va.1984); Grbac v. Reading Fair Company, Inc., 521 F. Supp. 1351 (W.D.Pa.1981); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 281 S.E.2d 223 (1981); Thomas v. Sports Car Club of America, Inc., 386 So. 2d 272 (Fla. 1980); Gross v. Sweet, 64 A.D.2d 774, 407 N.Y.S.2d 254 (1978); Tope v. Waterford Hills Road Racing Corporation, 81 Mich. App. 591, 265 N.W.2d 761 (1978); Johnson v. Thruway Speedways, Inc., 63 A.D.2d 204, 407 N.Y.S.2d 81 (1978); LaFrenz v. Lake County Fair Board, 172 Ind.App. 389, 360 N.E.2d 605 (1977); Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113 (W.D.Okla.1976); Kotary v. Spencer Speedway, Inc., 47 A.D.2d 127, 365 N.Y.S.2d 87 (1975). In a number of these cases summary judgment was granted in favor of the defendant based on the execution of the release.
In Tope v. Waterford Hills Road Racing Corp., supra, the Michigan court discussed whether a release from liability, such as the one before us, was contrary to public policy, stating:
81 Mich.App. at 596, 265 N.W.2d at 764 (citations omitted). The facts in Tope are strikingly similar to those in the case sub judice. In Tope, the participant was injured in a road race sponsored by the City of Pontiac and a corporate sponsor; the suit alleged negligence in the design and layout of the race course; the injured party had participated in road races before; and the injured party had signed a release from liability prior to being injured. The Michigan court emphasized that the race was run on city highways, which are certainly "not best adapted to race car driving," and, since Tope had experience in road races, he was aware of the increased danger inherent in racing on city streets as opposed to a racetrack.
As in Tope, Young was an experienced driver, and had entered road races in the past. He, too, must have been aware of the hazards of road races; nevertheless, he chose to execute the release and enter the race. He was afforded an opportunity to inspect the course before signing the release, but opted against such an inspection. He executed the release freely and voluntarily, with full knowledge of the dangerous nature of such a road race.
Young has failed to cite any cases that hold these prerace releases void as against public policy. Instead, he relies on cases which deal with situations having more of an impact on the general public, like Housing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14 So. 2d 527 (1943), which deals with landlord and tenancy law. Young's reliance upon this type of case is misplaced; where, as here "we are dealing with a fairly narrow segment of the public,... the general public as a whole is minimally affected." Tope, supra.
*1161 Every case which we have reviewed that discusses prerace releases holds that they are not void as being against public policy. In Gore v. Tri-county Raceway, Inc., the United States District Court, applying Alabama law, went one step further and held, as a matter of law, that not only were these releases not void as against public policy, but that it would be against the public interest not to recognize their validity.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | June 28, 1985 |
4bc170e8-5819-4d27-b698-58b61462b94a | Braswell Wood Co., Inc. v. Fussell | 474 So. 2d 67 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 67 (1985)
BRASWELL WOOD COMPANY, INC.
v.
Paul FUSSELL.
No. 83-1361.
Supreme Court of Alabama.
June 21, 1985.
*69 William M. Russell, Jr., Tuskegee, for appellant.
Carl O. Pilgrim of Pilgrim & Gooden, Montgomery, for appellee.
BEATTY, Justice.
Appeal by Braswell Wood Company, Inc. (Braswell Wood) from a summary judgment entered against it in the amount of $15,000, together with interest and costs, in favor of plaintiff, Paul B. Fussell, Sr. We reverse and remand.
The action grows out of a mortgage and promissory note on 240 acres of land lying in Macon and Bullock Counties. The land was owned by Ronald K. and Sandra K. Pirnie, who had purchased it from Fussell, giving him a purchase money mortgage and note in exchange. Fussell, as mortgagee, filed a complaint seeking to foreclose, and also seeking damages from Braswell Wood for alleged conversion of timber on the mortgaged land.[1]
The mortgage was foreclosed, and a deficiency judgment was awarded to Fussell. The propriety of those proceedings is not in issue here.
Fussell, the mortgagee, moved for summary judgment against Braswell Wood. The gist of his claim against Braswell Wood was that, after the sale of the land to the Pirnies and while their mortgage to Fussell was extant, the Pirnies executed a timber deed to Braswell Wood, which proceeded to cut $15,000 worth of timber from the mortgaged lands, paying that amount into a bank on the directions of Ronald K. Pirnie instead of to the mortgagee Fussell. In support of this motion, Fussell attached part of the deposition of John Braswell, owner of Braswell Wood, the bank check evidencing payment for the timber drawn by Braswell Wood, the mortgage from the Pirnies to Fussell, the timber deed from the Pirnies to Braswell Wood, and the two affidavits of Fussell himself. Braswell Wood did not respond to this motion by affidavit or otherwise, nor did Braswell Wood file any post-judgment motions. Braswell Wood did appeal from the summary judgment.
The controlling question on appeal is whether or not summary judgment was appropriate in this case. Rule 56, A.R. Civ.P., provides in pertinent part:
Fussell contends that summary judgment was proper in this case because Braswell Wood never, by affidavit or otherwise, responded to Fussell's motion, and thus Braswell Wood failed to meet the requirement of showing that there was a genuine issue for trial. We disagree.
When Braswell Wood answered Fussell's complaint, it raised certain defenses, set forth below, based on an agreement between Fussell and the Pirnies to reinstate the mortgage:
Here, as in Imperial Group, Ltd. v. Lamar Corp., 347 So. 2d 988, 989 (Ala. 1977), the "plaintiff-movant [here, Fussell] offered no allegations to negative" the defenses raised by Braswell Wood in its answer. In Imperial Group this Court reiterated the well established rule that:
Furthermore, even though no affidavits were filed by Braswell Wood in opposition to Fussell's motion for summary judgment, the court, nevertheless had to consider
Fountain v. Phillips, 404 So. 2d 614, 618 (Ala.1981). Accord Speigle v. Lott, 423 So. 2d 163 (Ala.1982).
In addition, the following quotation taken from C. Wright, Handbook of the Law of Federal Courts, § 99 at 664 (4th ed. 1983), is apropos:
*71 Because Fussell offered nothing to contradict the defenses raised by Braswell Wood in its answer, summary judgment was improper if granted merely because Braswell Wood rested on its pleadings. Nevertheless, we find the following caution given in Imperial Group, Ltd. v. Lamar Corp., supra, at 989-900, instructive, and it bears repeating in this case:
Notwithstanding all of the above, Fussell contends, in essence, that all of the defenses raised by Braswell Wood must fail as a matter of law, and therefore, that summary judgment was proper. We do not agree as to the first four defenses.
Because our analysis depends, in part, on the construction of the agreement to reinstate the mortgage entered into by Fussell and the Pirnies after the timber was cut, it is set forth in its entirety below:
(Emphasis added.)
Before this agreement was reached, the mortgage note was in default, the timber had been cut, and Fussell had accelerated the debt and begun foreclosure proceedings. Pursuant to this agreement, however, foreclosure proceedings were withdrawn subject to reinstitution if the Pirnies failed to perform the required clearing of the property, which they did fail to perform.
As between Fussell and the Pirnies, this agreement operated as a ratification of the sale of timber, thereby releasing the Pirnies of their liability in conversion if performed. However, whether Fussell intended to look to the Pirnies' performance of this agreement as a full satisfaction, thereby intending to release Braswell Wood from its liability in conversion, was properly a question for a jury.
By statute, Code of 1975, § 12-21-109, written releases or discharges generally must be given effect according to the parties' intention:
In Steenhuis v. Holland, 217 Ala. 105, 107, 115 So. 2, 4 (1927), the Court pointed out:
In Dwight Mfg. Co., v. Word, 200 Ala. 221, 226, 75 So. 979, 984 (1917), cited in Steenhuis, *73 supra, just as in the present case, the release in question named only one of the defendants. The Court held as follows:
From the material before the trial court, it cannot be held as a matter of law that Fussell, the mortgagee, by entering into the agreement with the Pirnies, did not intend to ratify the sale of the timber to Braswell Wood and look only to the performance of the agreement by the Pirnies as full satisfaction of his damage from the sale of the timber. Nor is it clear, as a matter of law, that Fussell intended the performance by the Pirnies to operate only as satisfaction pro tanto. The question of Fussell's intent was for a jury to decide. Accord, Thompson v. Nashville, C. & St. L. Ry., 160 Ala. 590, 49 So. 340 (1909).
Furthermore, "it is well settled that no person ... will in equity be permitted to receive and retain that which forms the consideration for an invalid sale or disposition of his property, and at the same time to retake the property [or claim damages therefor], to the prejudice of those who have in good faith acted upon the transaction as valid." Hobbs v. Nashville, C. & St. L. Ry. Co., 122 Ala. 602, 609, 26 So. 139, 141 (1899). Such conduct is subject to the defense of equitable estoppel or estoppel in pais asserted by Braswell Wood in its answer. In Ellison v. Butler, 271 Ala. 399, 124 So. 2d 88 (1960), the following definition of equitable estoppel was approved:
In Courington v. Birmingham Trust National Bank, 347 So. 2d 377, 380 (Ala.1977), this Court recognized that "[a]cquiescence is a form of estoppel, ... and is applicable when there is some element of neglect." Furthermore, in Cochran v. Cochran, 247 Ala. 588, 590, 25 So. 2d 693, 694 (1946), the Court espoused the following basis for asserting the defense of estoppel, quoting 2 Pomeroy on Equity, § 965, p. 2094:
See also Porter v. Peeke, 429 So. 2d 948, 951 (Ala.1983), where this Court held as follows:
In the context of a summary judgment, this Court, in Imperial Group, Ltd. v. Lamar Corp., supra, at 989, held that "[b]ecause `estoppel' is a mixed question of law and fact [where plaintiff/movant offered nothing to negative this defense], it is plain that material issues of fact remain, and, therefore, summary judgment was premature." In so concluding, the Court relied on Humphrey v. Boschung, 287 Ala. 600, 608, 253 So. 2d 769, 775 (1971), in which the following quotation from 28 Am.Jur.2d Estoppel and Waiver, § 149, p. 831, was approved:
Braswell Wood also raised the defense of waiver, which is defined as the intentional relinquishment of a known right. Bell v. Birmingham Broadcasting Co., 263 Ala. 355, 82 So. 2d 345 (1955). The Court in Bell went on to hold:
Furthermore, "[a]n intention to waive a right may be found where one's course of conduct indicates the same or is inconsistent with any other intention." Givens v. General Motors Acceptance Corp., 56 Ala. App. 561, 564, 324 So. 2d 277, 270 (1975).
As with the defense of release, we cannot say as a matter of law that Fussell did not intend to waive his right to bring an action in conversion against Braswell Wood. Here again, intention is appropriately an issue for the jury. Nor can we say, with respect to the defense of estoppel, that only one reasonable inference can be drawn from the evidence in the present case, making the issue one of law for the trial court. In reviewing the grant of a motion for summary judgment, all reasonable inferences from the evidence must be drawn in favor of the non-moving party. Houston v. McClure, 425 So. 2d 1114 (Ala. 1983).
In the present case, not only was there nothing submitted by Fussell to refute or negative the defenses of waiver and estoppel raised by Braswell Wood in its answer, Imperial Group, Ltd., supra, but also there was evidence of record which, when viewed most favorably toward Braswell Wood, would support these defenses. First, there is John Braswell's deposition in which he testified that, based on what he had been told by the Pirnies, he believed that the matter had been "straightened out" between the Pirnies and Fussell. In addition, with respect to the agreement between the Pirnies and Fussell, it is factually relevant that it was not until after the *75 Pirnies had failed to perform under the terms of the agreement, by failing to clear the property for farming, that Fussell brought his action in conversion against Braswell Wood. As in the case of Porter v. Peeke, quoted from supra, this is not to say that the action is barred as untimely filed; rather, a reasonable inference which could have been drawn from the timing of the action is that Fussell had intended the performance by the Pirnies to suffice as his satisfaction, and that he had acquiesced in the cutting of the timber insofar as Braswell Wood's liability was concerned, because he intended to waive his right to sue in conversion.
Nevertheless, we can say, as a matter of law, that the agreement to reinstate the mortgage did not operate as a substitution or novation with respect to the original mortgage agreement between Fussell and the Pirnies. In order for there to have been a novation, the pre-existing debt must have been extinguished. 58 Am. Jur.2d Novation, §§ 22, 23 (1971). Here, the terms of the original mortgage were reinstated without any changes. The promise by the Pirnies to clear the property and catch up the delinquent payments furnished the consideration for the withdrawal of foreclosure proceedings begun as a result of the mortgage being in default for nonpayment and the cutting of the timber. The terms of the original reinstated mortgage, however, were not varied.
Based on the foregoing, we conclude that at least a scintilla of evidence was furnished on each of the defenses raised, except novation or substitution, thereby precluding summary judgment. We need not reach any other issues raised by Braswell Wood. Accordingly, the judgment is due to be reversed and the case remanded for further proceedings.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] Other parties were subsequently joined and other issues litigated; however, those parties and issues are not involved in this appeal. | June 21, 1985 |
3afffbfd-c078-4a03-9bfb-e1b2d90b06e3 | Hales v. Scott | 473 So. 2d 1028 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1028 (1985)
Philip HALES and Dorothy Hales
v.
H. K. SCOTT.
83-1165.
Supreme Court of Alabama.
June 21, 1985.
*1029 Charles A. McGee, Fort Payne, for appellants.
Robert W. Hanson, Albertville, for appellee.
MADDOX, Justice.
This case concerns a suit seeking sale of real property for division of the proceeds. At issue is whether the trial court erred in failing to grant a directed verdict for appellants Dorothy and Philip Hales on the ground that the appellee, H.K. Scott, allegedly failed to prove an ownership interest in the property.
Scott filed suit seeking a sale of certain real property for division of proceeds, alleging that he was the owner of an undivided 9/10 interest in property and that the Haleses were the owners of an undivided 1/10 interest in the property. Scott claimed his ownership interest by having purchased the subject property at a mortgage foreclosure sale.
As proof of ownership, Scott testified, on direct examination, that he was the owner of a 9/10 interest in the property. Scott offered into evidence proceedings in the case of Truman Hicks, et al. v. Philip Hales and Dorothy Hales, et al., CV-77-500044, which, it appears, involved the same property and was tried in the same court as that in which this proceeding was held. The Haleses contend that the record of the former proceeding was not admitted into evidence. The present record shows the following with regard to the former proceeding:
The trial court, in its final decree in this case, found as follows:
The Haleses appeal here contending that the court erroneously took judicial notice of the prior proceeding. The record of the prior proceeding is not a part of the record before us.
We note first that the Haleses' motion for a directed verdict was not the proper motion. Because this was a non-jury case, the proper motion should have been for an involuntary dismissal under Rule 41(b), Ala.R.Civ.P. Feaster v. American Liberty Ins. Co., 410 So. 2d 399, 401 (Ala.1982); Chaney v. General Motors Corporation, 348 So. 2d 799 (Ala.Civ.App. 1977). Rule 41(b), in pertinent part, provides as follows:
We will treat the demand and trial court order as a Rule 41(b) motion and ruling, even though a Rule 41(b) motion is not the same as a Rule 50 motion. In comparing a Rule 41(b) motion to a motion for a directed verdict, the Chaney court stated, "A Rule 41(b) motion to dismiss is not the equivalent to a Rule 50 motion for a directed verdict, nor is the role of the trial *1031 court the same." Chaney, supra, at 801. The committee comments to Rule 41 elaborate on this distinction, as follows:
Ala.R.Civ.P. 41(b), committee comments, citing O'Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.1961).
This rule must be read in conjunction with the ore tenus rule. Thus, the trial court's ruling in a non-jury case need only be supported by credible evidence and will not be set aside unless it is clearly erroneous or palpably wrong or unjust. Peterson v. Jefferson County, 372 So. 2d 839 (Ala.1979).
Because the trial judge, in this decree, stated that he was taking judicial notice of the prior proceeding, we will address that question.
The law regarding when a circuit court may take judicial notice of judicial proceedings has been summarized in McElroy's Alabama Evidence, as follows:
C. Gamble, McElroy's Alabama Evidence, § 484.02(2) (3d ed. 1977) (emphasis added) (footnotes omitted).
In the case at hand, the former proceeding was not referred to in the pleadings, but we find that not to be fatal.
Here, the plaintiff's lawyer offered in evidence the court file that contained the only evidence of plaintiff's ownership of the subject property. When the defendants' lawyer asked to see the file, he was told that "[the clerk] can't seem to be able to find that file right now." Defendants' lawyer replied, "Judge, we can get it later. We'll go ahead and proceed." With this offer from the defendants' lawyer to get the file later, plaintiff's lawyer then rested his case; and, immediately, the defendants' lawyer moved for a "directed verdict" based on the lack of evidencethe very evidence not yet before the court, but which counsel had just agreed could be supplied later. In this posture, appellants cannot now be heard to complain that the trial court erred in denying their motion for dismissal. In spite of the trial judge's error in "taking judicial knowledge" of the proffered record of the prior proceeding, the judgment appealed from is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES, and BEATTY, JJ., concur. | June 21, 1985 |
9bdd286c-5b03-4a46-87f7-29ae0432a82a | American Honda Motor Co., Inc. v. Boyd | 475 So. 2d 835 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 835 (1985)
AMERICAN HONDA MOTOR COMPANY, INC., a corporation
v.
Donna M. BOYD.
83-1053.
Supreme Court of Alabama.
July 3, 1985
Rehearing Denied August 30, 1985.
*836 Robert M. Girardeau, Birmingham, for appellant.
J. Earl Smith, Dothan, for appellee.
ADAMS, Justice.
This is an appeal by defendant, American Honda Motor Co., Inc. (American Honda), from a judgment entered on a jury verdict which required defendant to pay $65,000.00 damages to plaintiff, Donna Boyd. We affirm.
Boyd purchased an automobile which she thought was new, but which she later discovered had been damaged and repaired prior to sale. More precisely, Donna Boyd *837 and her husband went to the Smith Brothers Toyota dealership seeking a new car. After looking at a Honda Accord and test driving it, the Boyds decided to buy the car. This decision was made even though the car had not been cleaned up, and still had the protective film on it.
Subsequent to purchase, Boyd's husband noticed a rattle in the passenger-side door and window. Boyd found that it was difficult to open that door or to roll the window up and down. Also, Boyd's husband noticed that the paint on the passenger side of the car did not seem to match. He took the car to a body repair shop, and was informed that the car had been damaged and repaired. Based upon this information, Boyd's husband took the car back to Smith Brothers Toyota in an attempt to receive an adjustment in the purchase price, or a new car. He talked with Tom Smith at Smith Brothers, who, after having been shown the problems with the car, called the distributor, American Honda, to find out what had happened. American Honda informed Smith that en route to the United States the car had been damaged, but that it had been repaired at the port of entry prior to its shipment to Smith Brothers. Tom Smith testified that he was advised by American Honda to satisfy the customer and notify it if a reasonable solution could not be reached.
Smith and the Boyds could not agree upon a solution that was satisfactory to both parties, and, as a result, Donna Boyd filed suit against Smith Brothers Toyota and American Honda, seeking money damages based on fraud and deceit and breach of warranty. At the close of the evidence, Smith Brothers Toyota filed a motion for directed verdict, which was granted by the court. The jury then returned a verdict, against American Honda for $65,000.00. Judgment was entered in accordance with the verdict. American Honda filed a motion for judgment notwithstanding the verdict and a motion for new trial, which the court denied. This appeal followed.
Appellant American Honda raises three issues for our review:
American Honda argues that this case should fall within the narrow exception discussed by this Court in Boulevard Chrysler-Plymouth, Inc. v. Richardson, 374 So. 2d 857 (Ala.1979). In that case the appellant/car dealer argued that this Court should adopt an objective legal definition of "new car," specifically "a motor vehicle for which there has been no prior retail purchaser and which has not suffered a substantial collision with another vehicle or object." In response, this Court stated:
374 So. 2d at 859.
American Honda asserts that, according to the facts of this case, the car should be declared a "new car," as only minor repairs had been made and they did not affect the value of the car. We disagree. Although there was evidence presented that the actual cost of the repairs to the automobile was $172.00, the Boyds offered expert testimony that the cost to properly repair the car would be approximately $550.00 to $600.00. The jury also heard expert testimony that the damages to this vehicle would be classified as major, rather than minor, damages. Finally, the jury had the opportunity to view the passenger-side door from the car to determine for itself the quality of the repairs that had been performed and the extent of the damage to the automobile.
In light of the foregoing, and our hesitance to adopt a categorical definition of "new car," we are of the opinion that the jury had sufficient evidence before it to determine that the subject automobile was not a "new car." Since the question of whether the car, after being damaged and repaired, was in fact a "new car" was properly submitted to the jury for determination based upon the evidence presented, we focus our attention on whether the jury's award of punitive damages was supported by the evidence.
American Honda argues that, for the jury to receive the issue of punitive damages, there must be proof that American Honda knowingly and intentionally made a false statement of a material fact with an intent to injure Donna Boyd and that such misrepresentation was gross, malicious, or oppressive. This, however, is not an accurate statement of the law in Alabama.
This precise issue was discussed thoroughly in the case of Ex parte Lewis, 416 So. 2d 410 (Ala.1982), wherein Justice Jones, in his special concurrence, stated:
416 So. 2d at 411-413.
It is well settled, therefore, that if the evidence establishes an intent to deceive or defraud, then punitive damages are recoverable. Courtesty Ford Sales, Inc. v. Clark, 425 So. 2d 1075 (Ala.1982); Big Three Motors, Inc. v. Smith, 412 So. 2d 1222 (Ala.1982). This principle was espoused over 100 years ago in the case of Munroe v. Pritchett, 16 Ala. 785 (1849), where this Court held that punitive damages are justified if a misrepresentation is made by one knowing that it is false.
In the case before us, it is undisputed that American Honda represented that the subject automobile was a "new car," when it in fact had suffered what has been termed "major" damage. Once the jury found that the car was not a "new car," it was not difficult then to find that American Honda was guilty of intentionally misrepresenting the condition of the car to the Boyds.
It has long been the rule in Alabama that jury verdicts carry with them a presumption of correctness, and that this presumption is strengthened when the trial court denies a motion for new trial. Carroll Kenworth Truck Sales, Inc. v. Leach, 396 So. 2d 1044 (Ala.1981); Walker v. Cardwell, 348 So. 2d 1049 (Ala.1977). American Honda has failed to convince this Court that we should abandon this rule in the instant case. Therefore, we are of the opinion that the jury's award of punitive damages was justified.
American Honda next argues that there was a complete lack of evidence to support a verdict based on a breach of warranty claim. We disagree.
Mike Boyd, Donna Boyd's husband, testified that he told the salesman at Smith Brothers Toyota, Bob Christensen, that he was interested in buying a new car. Christensen then took the Boyds to the "new car" lot. At no time did they go across the street to the lot where the used cars were located. The car that the Boyds finally purchased had all the indicia of a new car. It had the new car sticker on the window, which listed the information normally found on a new car, such as price and available options. The Boyds were given a new car warranty upon purchase. Also included in the new car package were tire warranties and rust protection warranties. The Boyds also were given the owner's manual. Mike Boyd testified that the car even smelled new. In addition, all the negotiations concerning the price of the car were based on the representations that it was a new car. After having the car for a short time, the Boyds discovered that the car had suffered damages which had necessitated major repair work. They subsequently returned to Smith Brothers Toyota in an attempt to rectify the problem. We are of the opinion that there was sufficient evidence presented to support Donna Boyd's claim for breach of the warranty that the car was new.
American Honda argues that it is not liable to Boyd because it was not notified of the defects, and was not given an opportunity to cure them, both of which it says are required by Code 1975, §§ 7-2-607 and -608. As to American Honda's first contention, it is undisputed that American Honda was made aware of the problems as soon as the Boyds took the car back to Smith Brothers Toyota. Tom Smith testified that American Honda was immediately contacted. It was at this time that American Honda explained how the car had been damaged and repaired. Thus, American Honda had notice of the Boyds' problem with the car.
Regarding the opportunity to cure, the pertinent part of § 7-2-607 states:
Section 7-2-608(1) also addresses this issue. It reads:
It is undisputed that Boyd purchased the car without knowledge of the damages; therefore, the only language cited above which applies in this case is that of § 7-2-608(1)(b), which says nothing about the opportunity to cure. Therefore, American Honda's reliance on these two statutes is not well founded.
American Honda's assertions that the trial court committed reversible error concerning certain of its evidentiary rulings and jury charges, we do not find supported by the record. We, therefore, pretermit discussion of each of American Honda's claims in this regard.
For all of the above-stated reasons, the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
TORBERT, C.J., dissents.
TORBERT, Chief Justice (dissenting).
Consistent with my dissenting opinion in Ex parte Lewis, 416 So. 2d 410, at 415 (Ala. 1982), I must respectfully dissent in this case. The law as to punitive damages for deceit and fraud is far from being well settled in this state; as my dissent in Ex parte Lewis outlined, this Court has set forth several standards for the awarding of punitive damages and continues to mystify the bench and bar by failing to adopt one clear standard that properly takes into account the purpose and gravity of punitive damage awards. The standard "that if the evidence establishes an intent to deceive or defraud, then punitive damages are recoverable" defeats the purpose of punitive damages, which are intended to punish and deter gross, malicious, or oppressive conduct that is coupled with an intent to deceive or defraud. Simply proving an intent to deceive or defraud is not enough to warrant the extraordinary award of punitive damages. This Court has long followed "the gross, malicious or oppressive conduct with an intent to deceive or defraud" test. See, Gulf Shores, Ltd. v. Powrzanos, 442 So. 2d 71 (Ala.1983); Mobile Dodge, Inc. v. Waters, 404 So. 2d 26 (Ala.1981); Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So. 2d 912 (Ala. 1981); Spartan Pools v. Royal, 386 So. 2d 421 (Ala.1980); Randell v. Banzhoff, 375 So. 2d 445 (Ala.1979); Proctor Agency, Inc. v. Anderson, 358 So. 2d 164 (Ala.1978); United States Fidelity & Guaranty Co. v. McKinnon, 356 So. 2d 600 (Ala.1978); Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976); Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So. 2d 261 (1973); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24 (1961); Boriss v. Edwards, 262 Ala. 172, 77 So. 2d 909 (1954); Southern Building & Loan Association v. Bryant, 225 Ala. 527, 144 So. 367 (1932). The Court should not now abandon by implication such a longstanding test for punitive damages, especially without an in-depth analysis of the purposes behind, and the needs for, punitive damages.
The majority opinion states that its "intent to deceive or defraud" test was set forth in Munroe v. Pritchett, 16 Ala. 785 (1849), "where this Court held that punitive damages are justified if a misrepresentation *841 is made by one knowing that it is false." This is an incorrect statement of Munroe, for in that case punitive damages were never mentioned; the Court talked only of "damages." 16 Ala. at 789. In addition, this Court has interpreted the language in Munroe as applying to compensatory damages. As the Court stated in Gibson v. Marquis, 29 Ala. 668, 673 (1857):
Also, in Crown v. Carriger, 66 Ala. 590, 593 (1880), this Court expressed the measure of damages as "the seller shall make the representation good, Munroe v. Pritchett...." Munroe does not stand for the test that the majority sets forth in this case. In my opinion, the acts of American Honda do not amount to "gross, malicious or oppressive" conduct.
I question another aspect of the majority opinion. The opinion states that the seller has no right to cure a defect after revocation of acceptance under § 7-2-608(1)(b). I do not believe that this apparent question of first impression can be disposed of by merely noting that § 7-2-608(1)(b), unlike § 7-2-608(1)(a), does not mention the right to cure. Generally, when a buyer rejects the goods of a seller, the seller has a right to cure the defect giving rise to rejection. Code 1975, § 7-2-605. (See also the comments to this section). Revocation of acceptance can be viewed as a delayed rejection, which would give rise to the same right of the seller to cure certain defects. Indeed, we have recognized that a right to cure exists when revocation of acceptance occurs under § 7-2-608(1)(a); Dickson v. U-J Chevrolet Company, Inc., 454 So. 2d 964 (Ala.1984); Gigandet v. Third National Bank of Nashville, Tenn., 333 So. 2d 557 (Ala.1976). There appears to be a split of opinion, nationwide, as to whether the right to cure also exists under § 7-2-608(1)(b). 4 R. Anderson, Uniform Commercial Code § 2-608: 14 & 15 (3d ed. 1983). Since the overall policy of the Uniform Commercial Code is to allow transactions to take place and, generally, to allow the seller to cure defects causing rejection, it is my opinion that we need to give this issue more consideration. | July 3, 1985 |
9f3a0a9d-7862-4568-9f9d-39cd3b35ab36 | Ex Parte State | 473 So. 2d 1132 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1132 (1985)
Ex parte STATE of Alabama.
(In re Randy Ray BENSON v. STATE of Alabama).
84-539.
Supreme Court of Alabama.
June 21, 1985.
Charles A. Graddick, Atty. Gen. and Alice Ann Boswell, Asst. Atty. Gen., for petitioner.
Bryce U. Graham, Tuscumbia, for respondent.
PER CURIAM.
On preliminary consideration, we granted the State's petition for writ of certiorari because, under the facts as presented by the petition pursuant to A.R.A.P. 39(k), it appeared that the Defendant may have waived his right to arraignment. Our careful review of the record, however, reveals that the Court of Criminal Appeals correctly concluded that Defendant raised this issue during trial and that the trial court's subsequent erroneous reference to the Defendant's plea of guilty without further objection did not constitute a waiver of his procedural right to be furnished a copy of the complaint against him and his concomitant right to plead thereto. Code 1975, § 12-22-114; Rule 16.1, Alabama Rules of Criminal Procedure.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. | June 21, 1985 |
7b554a70-d418-4e5f-84d4-9cc7d0fc9bb7 | Owen v. Rutledge | 475 So. 2d 826 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 826 (1985)
James E. OWEN
v.
Johnnie B. RUTLEDGE.
83-883.
Supreme Court of Alabama.
June 28, 1985.
Rehearing Denied August 30, 1985.
Sydney S. Smith of Smith & Smith, Phenix City, for appellant.
Edmon L. Rinehart, Montgomery, for appellee.
PER CURIAM.
This is an appeal by Dr. James E. Owen, the president of Chattahoochee Valley State Community College (CVCC), from an order of the Circuit Court of Russell County which issued a writ of mandamus compelling Owen to re-employ Johnnie B. Rutledge.
Rutledge was employed by CVCC on a year-to-year basis as an instructor from *827 September 1975 until August 1977. Apparently, Rutledge also served unofficially as a Veterans Administration counselor. In March 1977, Rutledge and CVCC entered into a contract whereby in September of 1977, Rutledge would hold the position of Veterans Administration counselor until August 1978. Rutledge continued to teach while serving as VA counselor and remained on a "faculty pay schedule" for part of that year. On May 1, 1978, Rutledge assumed the position of director of "extended day programs," undisputedly an administrative position. His salary was increased and he was moved from a "faculty pay schedule" to a "salary schedule for professional personnel not included in other schedules." Rutledge remained in an administrative position until he was terminated pursuant to the procedure for terminating nontenured personnel in 1981. Rutledge did continue to teach, during the remainder of his employment, as all administrators were required to do, except during his last year. Rutledge then petitioned the Circuit Court of Russell County for a writ of mandamus to compel Owen to re-employ him. The writ was issued.
On appeal Owen raises three issues:
We will address these issues in the sequence presented by Owen.
Mandamus is an appropriate remedy to enforce the rights of teachers under the tenure laws. Of course, the threshold question presented here is whether Rutledge was tenured. That is a proper issue to be litigated in circuit court. Cf., Berry v. Pike County Board of Education, 448 So. 2d 315 (Ala.1984). We have held that if a teacher is in fact tenured under Chapter 24 of Title 16 of the Code of Alabama 1975, "Tenure of Employment of Teachers," then mandamus will lie to enforce the rights of the tenured teacher. Wooten v. Alabama State Tenure Commission, 421 So. 2d 1277 (Ala.Civ.App.1982); Alabama State Tenure Commission v. Green, 409 So. 2d 850 (Ala.Civ.App.1982). We believe that the same rule should apply with regard to the tenure of teachers employed by junior, community, and technical colleges under the provisions of § 16-60-111 (now § 16-60-111.4) and rules and regulations duly adopted under the authority of that statute by the Alabama State Board of Education.
The resolution of the issue of whether Rutledge was entitled to tenure turns upon the construction of Section 612 of the Rules and Regulations of the State Board of Education. Section 612 reads:
Tenure rules are to be read into all contracts entered into by school boards and teachers. Cf., Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So. 2d 233 (1972).
*828 Owen contends that an administrator is not a "professional staff member" and therefore that Rutledge was not entitled to tenure, as Rutledge had not been "approved for employment [as an instructor] for a fourth consecutive year." The trial court found, and we agree, that the term "professional staff member" is ambiguous.[2] The court having found that the contract is ambiguous,
Rivers v. Oakwood College, 442 So. 2d 74, 76 (Ala.1983).
The evidence presented by the parties was in sharp conflict. Rutledge put forth testimony from Dr. Savage, president of CVCC at the time Rutledge was employed, that he thought the term included administrators. Rutledge also placed into evidence the minutes of a meeting of the State Board of Education in 1979 at which the Board considered the question of whether § 612, originally adopted in 1967, should be amended to explicitly remove administrators from its provisions. From those minutes it is apparent that some members of the Board, particularly Dr. Martin, who was chairman of the Board when § 612 was adopted, were concerned that § 612 had included administrators as persons eligible for tenure. It is interesting to note that the Board did later amend § 612 in 1979 to explicitly exclude administrators from being eligible for tenure. Owen put forth testimony from Dr. Wayne Teague, the current State Superintendent of Education; Dr. Ernest Stone, State Superintendent of Education from 1967 to 1970; Dr. Erskine Murray, Assistant Superintendent of Education for General Administration; and others to the effect that administrators did not attain tenure. The trial court concluded that Rutledge was entitled to tenure under § 612 as it read when Rutledge was hired.
When the factfinder's conclusions are based upon evidence presented ore tenus, or partly so, we will not disturb those conclusions unless they are palpably wrong and contrary to the great weight of the evidence. Murphree v. Henson, 289 Ala. 340, 267 So. 2d 414 (1972); Lott v. Keith, 286 Ala. 431, 241 So. 2d 104 (1970). Owen presented numerous witnesses who testified it was their interpretation of § 612 that it did not grant administrators tenure. However, only one of these witnesses, Dr. Stone, was present when the original rule was adopted. Dr. Martin, who was chairman of the Board when § 612 was originally adopted, expressed his opinion in the 1979 meeting that administrators were probably covered by § 612. While the question is a close one, we are not prepared to say that the trial court's conclusions are palpably wrong.
Our disposition of the previous issue is dispositive of the question raised here. Initially we note that while Owen characterizes his interpretation of § 612 as the longstanding interpretation of an administrative rule, there is no such written interpretation on record. There is a "Superintendent's Policy Statement No. 15," issued in 1970, stating that persons on the pay schedule styled "Twelve-Month Personnel Not Included in Other Salary Schedules" will not achieve continuing status, but that policy statement is in itself ambiguous. *829 The testimony of Dr. Stone, the author of that statement, points out the ambiguous nature of the statement, since even he characterizes the statement as only implying that administrators cannot obtain tenure. He further testified that as far as he knew the question had otherwise never arisen. The point is that, contrary to Owen's contentions, this is not a case where an agent has taken some action in contravention of clearly established rules. It is undisputed that Dr. Savage had authority to hire personnel. The only question is what the terms of the contract, as expressed by the Board in § 612, were. That issue was resolved in favor of Rutledge.
The judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.
[1] The appellant did not argue whether Rutledge possessed "the minimum degree requirement in his specialty"; therefore, we assume that he did.
[2] We note, after reviewing the testimony and exhibits, that the whole field of tenure for junior, community, and technical college personnel at the time in question was ambiguous. | June 28, 1985 |
f9f0cdf5-d233-4fcf-8575-720aac0c0212 | Cleveland v. Monroe | 474 So. 2d 80 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 80 (1985)
Jay CLEVELAND
v.
Lindsey MONROE.
83-1358.
Supreme Court of Alabama.
June 28, 1985.
*81 Ernest Cory of Johnson & Cory, Birmingham, for appellant.
J.L. Klinefelter and H. Darden Williams, Anniston, for appellee.
EMBRY, Justice.
Jay Cleveland appeals from the denial of his Rule 60(b)(1), ARCP, motion to reinstate his action previously dismissed for want of prosecution. We reverse.
The record reflects that Cleveland's statement of the case is accurate. The following is the chronology of events in this case, including its dismissal: Cleveland filed his complaint on 6 January 1983. Grant Paris was at that time his attorney. Service was had on the defendant on 13 January 1983. Defendant filed a motion to dismiss on 26 January 1983 through his attorney, J.L. Klinefelter. At the same time, defendant filed interrogatories to plaintiff.
H. Darden Williams also filed an appearance on behalf of defendant on 10 February 1984.
Plaintiff answered defendant's interrogatories on 13 June 1984. In the meantime, Cleveland's then attorney, at a peremptory call of the docket on 2 April 1984, informed the court that he no longer represented Cleveland. Two days later the action was dismissed for want of prosecution. Cleveland's new counsel, the attorneys on this appeal, prepared and mailed an amended complaint on 10 April 1984; it was docketed in the circuit clerk's office on 16 April 1984. Interrogatories to the defendant were filed at the same time. No response being had to the interrogatories upon the expiration of 30 days, Cleveland filed a motion to compel on 1 June 1984.
Prior to the motion to compel, defendant's attorneys, H. Darden Williams and J.L. Klinefelter, on 17 April 1984 and 29 May 1984, respectively, filed motions to dismiss the amended complaint for failure to state a claim.
On 24 April 1984 Grant A. Paris filed notice of withdrawal as Cleveland's attorney. On 25 June 1984, after having been informed that his action had been dismissed on 4 April 1984, Cleveland filed his motion to reinstate, from the order of denial of which he perfected this appeal.
From this chronology of events it may be readily discerned that all parties considered this case alive and well long after the order was entered dismissing it. We today hold that the trial court abused its discretion in dismissing this action and the ends of justice require its reinstatement. All parties to this action having proceeded as though it had not been dismissed, we cannot see any prejudice resulting to defendant from its reinstatement. As stated by the Fifth Circuit, the (trial court's) discretion "must be exercised in light of the balance that is struck by Rule 60(b) between the desideratum of finality and the demands of justice." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981).
We approve, in general, the observations made in Schwab v. Bullocks, Inc., 508 F.2d 353 (9th Cir.1974): Rule 60(b) is remedial in nature and must be liberally applied by the court; defaults and dismissals are generally disfavored and cases should be decided on the merits; where timely relief is sought and the movant has a meritorious claim, any doubt should be resolved in favor of setting aside the dismissal.
The judgment of dismissal is due to be set aside and this cause reinstated.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | June 28, 1985 |
bad4c5c7-be82-443f-9d9a-f850e0698fd3 | Ex Parte Stork | 475 So. 2d 623 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 623 (1985)
Ex parte Francis Louise STORK.
(Re: Francis Louise Stork v. State of Alabama).
No. 84-227.
Supreme Court of Alabama.
July 3, 1985.
Edwin L. Yates, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
Petitioner, Francis Louise Stork, seeks review of the judgment of the Court of Criminal Appeals, 475 So. 2d 622, which upheld the trial court's refusal to instruct the jury on the lesser included offense of third-degree assault.
The sole issue before this Court is whether a person who denies committing an offense with which he is charged is, nevertheless, entitled to a jury instruction on a lesser included offense supported by the evidence.
Petitioner was charged with assault in the first degree, and the trial court charged the jury on assault in the first and second degrees, but refused petitioner's request to charge on assault in the third degree. The jury found petitioner guilty of assault in the second degree and the court sentenced her to three years' imprisonment.
According to the Court of Criminal Appeals:
Petitioner cites Ex parte McGee, 383 So. 2d 205 (Ala.1980), which states:
The Court of Criminal Appeals cited Wesley and Williams, supra, in support of its judgment that petitioner was not entitled to the requested instruction on assault in the third degree. Wesley, citing Williams as authority, states at 424 So.2d 652:
We hold that the Court of Criminal Appeals erred in its interpretation of Williams, supra. The correct principle applied in Williams was stated at 377 So.2d 634:
Under Williams and McGee, "[t]he defendant has the right to request instructions based upon any material hypothesis which the evidence in his favor tends to establish." In this case, one view of the facts would be that petitioner was involved in fighting with the victim, although she denied that she either fought with the victim or that she stabbed the victim. The evidence that she fought with the victim would justify a charge of the lesser included offense of third-degree assault, Code *625 1975, § 13A-6-22 (causing physical injury intentionally, recklessly, or with criminal negligence), under McGee, supra.
This Court in Ex parte Chavers, 361 So. 2d 1106 (Ala.1978), opined:
Because the Court of Criminal Appeals applied the incorrect principle of law on lesser included offenses, its judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | July 3, 1985 |
70080efb-b6f2-4728-b9e1-1d40ea5f202e | Nowlin v. Druid City Hosp. Bd. | 475 So. 2d 469 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 469 (1985)
J.E. NOWLIN, Administrator of the Estate of James E. Nowlin, Deceased
v.
DRUID CITY HOSPITAL BOARD.
Ex parte James E. NOWLIN.
(In re J.E. NOWLIN, Administrator of the Estate of James E. Nowlin, Deceased v. DRUID CITY HOSPITAL BOARD, et al.)
83-1407, 84-178.
Supreme Court of Alabama.
June 14, 1985.
Rehearing Denied August 23, 1985.
*470 Edward F. Morgan, Tuscaloosa, for appellant and petitioner.
Sam M. Phelps and Michael S. Burroughs, Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees and respondents.
Rehearing Denied as to 83-1407 August 23, 1985.
FAULKNER, Justice.
This appeal and petition for writ of mandamus were consolidated for our consideration of whether the trial court erred in granting a motion for relief under Rule 60(b), A.R.Civ.P.
Plaintiff, administrator of the estate of J.E. Nowlin, brought a wrongful death action against the Druid City Hospital Board. On October 12, 1982, the jury returned a verdict in favor of Nowlin for $500,000.00. On November 9, Druid City Hospital Board filed a motion entitled "Motion for Judgment Notwithstanding the Verdict, or in the alternative a motion for a new trial, or in the alternative, a motion for remittitur."
The 90 days given the trial court to rule on the motion as provided for in A.R.Civ.P. Rule 59.1 expired on February 7, 1983, and the motion was denied by operation of law on that date.
On February 9, the trial court in a written order denied the motion for J.N.O.V. and the motion for new trial, but reduced the judgment from $500,000 to $100,000 on the basis of Alabama Code, 1975, § 11-93-2, which states in pertinent part:
The 42 days for notice of appeal expired on March 21. On March 23, Druid City Hospital Board appealed the trial court's order reducing the judgment, and on March 30 Nowlin filed a cross-appeal.
*471 On October 25, 1983, 446 So. 2d 75, this Court dismissed the appeals as untimely, thus reinstating the $500,000.00 verdict.
Thereafter, on November 9, the Board filed a Rule 60(b) motion for relief from judgment. The trial court granted the motion and again reduced the judgment to $100,000.00 and ordered the judgment satisfied.
Nowlin filed both an appeal and a petition for writ of mandamus. The central issue before us is whether the trial court properly granted Druid City Hospital Board's 60(b) motion.
Although the motion does not state the specific basis for Rule 60(b) relief, the hospital board argues that the trial court's order was the proper means to reduce the judgment to conform with the statute. Druid City Hospital Board contends that relief was appropriate under either Rule 60(b)(5) or Rule 60(b)(6).
Pursuant to Rule 60(b)(5), the hospital board maintains that it was entitled to relief because the "judgment has been satisfied" and because "it is no longer equitable that the judgment should have prospective application." We disagree, since the judgment in this case was for $500,000.00; since only $100,000.00 has been deposited with the clerk of the court in satisfaction of the judgment, Rule 60(b)(5) would be an improper means of relief from the judgment.
Likewise, we also find that relief "for any other reason" under Rule 60(b)(6) was improper. Based upon our review of the record and the trial court's 60(b) order, it appears that the motion was used, in effect, as a substitute for a proper appeal.
Rule 60(b)(6) is a residual clause to cover unforeseen contingencies. 7 J. Moore Federal Practice § 60.27[2] (1985). Considered an extraordinary remedy, Rule 60(b)(6) may not be used to relieve a party from his own failure to take an appeal, City of Daphne v. Caffey, 410 So. 2d 8 (Ala.1981), and the provision may not be used to extend the time for appeal. Relief under Rule 60(b)(6) will be allowed only in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief. Ex parte Hartford Insurance Co., 394 So. 2d 933 (Ala.1981).
In the instant case, the Druid City Hospital Board failed to show any exceptional and compelling circumstances other than those which could have been effectively addressed upon timely appeal. The same grounds raised in post-trial motions and in the untimely appeal were also raised in the 60(b) motion. In fact, the trial judge, in granting the 60(b) motion stated:
While we recognize that the trial court was attempting to conform the judgment to the statute, the 60(b) motion was clearly used as an attempt to extend the time for appeal. This will not be allowed.
The statute sets forth the maximum amount of damages recoverable against a governmental entity. It does not, however, limit the amount of the judgment. Section 11-93-2 only becomes operative when a plaintiff attempts to execute on the judgment. Until that time, the issues relating to the constitutionality of the statute and the possibility of recovering any excess from the entity's insurance company are not ripe for our review. Accordingly, the only issue properly before us is the propriety of granting the 60(b) motion. Since we have previously determined that the 60(b) motion was improperly granted, the $500,000.00 judgment stands as final.
We also conclude that appeal rather than mandamus lies in the instant case, since the granting of the Rule 60(b) motion was not by an interlocutory order. This case is one of those rare situations when the order granting 60(b) relief, "when tested by the usual principles of finality," is sufficient to support an appeal. Sanders v. Blue Cross-Blue Shield of Alabama, 368 So. 2d 8 (Ala.1979); Ex parte Short, 434 So. 2d 728 (Ala.1983).
*472 REVERSED AND REMANDED.
WRIT OF MANDAMUS DENIED.
JONES, ALMON, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX and SHORES, JJ., dissent.
TORBERT, Chief Justice (dissenting).
I respectfully dissent from the holding of the majority that Rule 60(b)(5), A.R.Civ.P., was an improper means of relief from the judgment entered.
The judgment in this case was for $500,000.00. Code 1975, § 11-93-2, limits the recovery of damages under any judgment against a governmental entity to $100,000.00. Druid City Hospital Board paid the $100,000.00 statutory maximum recoverable damages to the clerk of the Tuscaloosa County Circuit Court on February 18, 1983. The majority holds that § 11-93-2 becomes operative only when a judgment creditor attempts to execute on the judgment. On the basis of the facts in this case and the law, it is my opinion that such a position is untenable.
Code 1975, § 12-17-93(3), authorizes the clerks of the circuit courts to "receive the amount of any judgment entered in the courts of which they are clerks, either before or after the issue of execution thereon." Generally, payment in full to some person authorized by law to receive a judgment may operate as a release or satisfaction of that judgment. Henderson v. Planters & Merchants Bank of Ozark, 178 Ala. 420, 59 So. 493 (1912). Therefore, payment in full of a judgment to the clerk of the court in which the judgment was entered would operate as a release or satisfaction of that judgment. Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc., 426 So. 2d 859 (Ala.Civ.App.1983).
The majority, in effect, holds that a judgment, which is paid in full to the clerk of the court pursuant to § 12-17-93(3), is not satisfied when the judgment debtor pays the money to the clerk, but, rather, that the judgment is satisfied only when the judgment creditor attempts to execute on the judgment. I do not believe that the law supports the proposition that the failure or refusal of a judgment creditor to take money from the clerk of the court, paid to the clerk by the judgment debtor, results in the continuance of a lien outstanding against the property of the judgment debtor. See, Code 1975, § 6-9-211.
Rule 60(b)(5) specifically provides relief from judgment when the "judgment has been satisfied, released, or discharged." Once payment by a judgment debtor is made to the clerk of the court, the judgment is due to be marked "satisfied." Druid City Hospital Board paid the statutory maximum recoverable damages to the clerk of the court; accordingly, the judgment was due to be satisfied.
I would affirm the judgment of the trial court and hold that Druid City Hospital Board's Rule 60(b)(5) motion was the proper procedure to invoke the operation of § 11-93-2.
MADDOX and SHORES, JJ., concur. | June 14, 1985 |
04a8f145-9fe5-4c5d-a697-1eb58be0db33 | Wray v. State | 472 So. 2d 1119 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1119 (1985)
Ex parte: State of Alabama.
(Re: Tommy WRAY v. STATE of Alabama).
84-272.
Supreme Court of Alabama.
June 7, 1985.
*1120 Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for petitioner.
Howard G. Hawk, Arab, for respondent.
ADAMS, Justice.
We granted certiorari in this case to review the Court of Criminal Appeals' reversal of the Marshall County Circuit Court's judgment, wherein that court reconsidered its grant of probation and ordered the defendant to begin serving his original five-year sentence. According to the Court of Criminal Appeals, 472 So. 2d 1116, the trial court resentenced the defendant and this violated the Double Jeopardy Clause of the United States Constitution. We do not agree. The judgment of the Court of Criminal Appeals is reversed.
The defendant, Tommy Wray, was indicted for burglary in the third degree and receiving stolen property in the second degree. Pursuant to a plea bargain agreement, Wray pleaded guilty to the burglary charge, and, in return, the state requested that the receiving stolen property charge be dismissed. Also as part of the agreement, the state refrained from making any recommendation regarding Wray's request for probation.
Following a pre-sentence investigation, the trial court conducted a sentencing hearing on April 5, 1984. After listening to the testimony offered by Wray and considering the pre-sentence report, the court sentenced Wray to five years' imprisonment in the penitentiary. The court then suspended the sentence and placed Wray on three years' probation.
A few days later, Wray confessed to committing two other burglaries on April 4, 1984, the night before the sentencing hearing. Based upon this newly discovered information, the state filed a motion with the trial court seeking reconsideration of the court's grant of probation. The court conducted a hearing, and, after reviewing the testimony offered by both sides, vacated its original order granting probation and required *1121 Wray to begin serving the five-year sentence.
On appeal, the Court of Criminal Appeals referred to the trial court's action as "resentencing," and subsequently held that it violated the Double Jeopardy Clause of the United States Constitution. After an application for rehearing was overruled, the state filed a petition for a writ of certiorari, which we granted.
The dispositive issue raised for our review is whether the Court of Criminal Appeals erred when it held that the trial court resentenced Wray, and, therefore, that Wray's constitutional protection against double jeopardy was violated. We are of the opinion that the Court of Criminal Appeals did so err, and, for the reasons that follow, we reverse its judgment.
Alabama courts are authorized by statute to grant probation in certain cases. Section 15-22-50, Code 1975, states in pertinent part:
This power of the courts to grant probation is a matter of grace, and lies entirely within the sound discretion of the trial court. Sparks v. State, 40 Ala.App. 551, 119 So. 2d 596 (1959), cert. denied, 270 Ala. 488, 119 So. 2d 600 (1960); Smitherman v. State, 340 So. 2d 896 (Ala.Crim.App.), cert. denied, 340 So. 2d 900 (Ala.1976).
We now turn to the question of whether the trial court's actions amounted to a resentencing of Wray.
We have recently held that a grant of probation does not reduce a sentence, but rather that the original sentence which was suspended remains the same. State v. Green, 436 So. 2d 803 (Ala.1983). Since a grant of probation does not reduce a sentence, it necessarily follows that the revocation of probation does not increase a sentence. Based upon our holding in Green, Wray's original sentence of five years remained the same throughout the trial court's actions regarding probation. Therefore, the court's grant and reconsideration of probation was not a resentencing of Wrayhis original sentence of five years' imprisonment remained unchanged.
Since Wray was not resentenced, the Double Jeopardy Clause was not violated. To hold otherwise would be to drastically change the nature of probation itself. If probation, once granted by a court, could not be renounced by that court without the action amounting to a resentencing, then no court could ever reconsider and renounce its grant of probation without offending the Double Jeopardy Clause. We do not believe this to be the intent of the legislature when it empowered the courts with absolute discretion regarding probation.
When the court exercised its power and suspended Wray's sentence and placed him on probation, it was acting without knowledge of the two burglaries which Wray had committed only hours before. The court's suspension of Wray's sentence, therefore, was based upon an incomplete set of facts. In order for the court to be able to fully utilize its power concerning probation, it must be able to reconsider its original grant in a case like the one before us.
The purpose of § 15-22-50, Code 1975, is to "ameliorate the harshness of the law's judgment and give the convict a chance to show that he or she is a fit subject and may be rehabilitated and become an acceptable citizen." State v. Esdale, 253 Ala. 550, 45 So. 2d 865 (1950). Wray does not seem to be a person who is ready to reform his life and be rehabilitated. On the contrary, he knew that the very next day the court would be considering *1122 his request for probation, and, with this in mind, he decided to commit two more burglaries. He also should have known that if the court gained knowledge of these most recent crimes, his request for probation would be deniedyet he nevertheless committed the burglaries. We are of the opinion that, had the court known about these new burglaries, it most assuredly would not have chosen to suspend sentence and grant probation. But even if it had, that decision must be left up to the trial court, and it must be made based on a knowledge of the complete facts and circumstances. If a court receives new information concerning its grant of probation, as in the case sub judice, its hands must not be tied, but it must be allowed to vacate its original grant of probation and order that the original, unchanged, suspended sentence be served.
We find further support for our decision in the case of Wilcox v. State, 395 So. 2d 1054 (Ala.1981). In Wilcox, we held that the trial court had the power to revoke the defendant's probation when the court learned, after already having signed the probation order, that the defendant had committed a felony before the terms of his probation came into effect. We are of the opinion that this holding is precedent in the instant case to allow the court to revoke its grant of probation based upon newly obtained knowledge that Wray had committed two burglaries the night before his sentencing hearing. In Wilcox, the defendant knew that he was under a sentence which included a five-year probationary period which began after his one-year term in the county jail expired. Although this is not the case here, Wray had filed a request for probation and did know that the court would be acting on the request in a matter of hours. In both cases the defendants committed crimes which they knew would affect their probation, once they were discovered by the courts.
In Wilcox, even though the defendant was not yet technically "on probation," we held that his conviction for a crime committed subsequent to his original conviction for a crime committed subsequent to his original conviction and sentencing, which was unknown by the court at the time it granted probation, could serve as a basis for the court's revocation of probation. We are of the opinion that the ratio decidendi of the Wilcox decision is applicable in this case.
For all of the above-stated reasons, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.
REVERSED; JUDGMENT OF TRIAL COURT REINSTATED.
MADDOX, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.
TORBERT, C.J., and ALMON, J., not sitting. | June 7, 1985 |
f9f8e84f-3673-4528-8b08-d98b9d6449d6 | College Art Theatres, Inc. v. State Ex Rel. DeCarlo | 476 So. 2d 40 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 40 (1985)
COLLEGE ART THEATRES, INC., a Corporation
v.
STATE of Alabama, ex rel. John Paul DeCARLO, District Attorney for the Tenth Judicial Circuit of Alabama.[1]
ANWAR ENTERPRISES, INC., a Corporation, d/b/a Birmingham Adult Books
v.
STATE of Alabama, ex rel. John Paul DeCARLO, District Attorney for the Tenth Judicial Circuit of Alabama.
83-401, 83-402.
Supreme Court of Alabama.
June 28, 1985.
Rehearing Denied August 30, 1985.
*41 Ferris S. Ritchey, Jr., of Ritchey & Ritchey, Birmingham, for appellants.
John Paul DeCarlo, Dist. Atty., pro se.
PER CURIAM.
These two cases arise under the Alabama Red Light Abatement Act, Code 1975, § 6-5-140, et seq. After finding that defendants permitted and effectively encouraged their patrons' lewd conduct in their adult motion picture theaters, the trial court granted permanent injunctions prohibiting defendants from operating their premises as motion picture theaters or exhibiting motion pictures, but permitting them to operate any other lawful business. The defendants argue that this injunction constitutes an impermissible prior restraint of their right to free expression protected by the First Amendment to the United States Constitution.
College Art Theatres, Inc., exhibits sexually explicit motion pictures at its theater in Birmingham. In the year prior to July 11, 1983, when the trial court entered a preliminary injunction in this matter, Birmingham police officers witnessed 39 incidents of sexual misconduct in College Art's theater. The trial court made the following findings regarding these incidents and the management's attitude toward them:
Anwar Enterprises, Inc., operates a bookstore selling erotic materials. In the rear of Anwar's place of business are "movie rooms" with coin-operated projectors showing sexually explicit movies. There are ten of these rooms or booths along a hallway leading from the book and magazine portion of the store.
The court enjoined both defendants from conducting a movie theater or exhibiting motion pictures. It ordered Anwar Enterprises to bar access by the public to the portion of its premises where the movie booths are located, and ordered the sheriff to sell the personal property inventoried under the provisions of § 6-5-151(a). The court specifically allowed both defendants to conduct any business not enjoined by the judgment.
*44 The state, under its police power, has the authority to abate nuisances offensive to the public health, welfare, and morals. A business which allows lewd conduct on its premises may constitute such a nuisance. Flamingo Club of Dothan, Inc., 387 So. 2d 132 (Ala.1980); Ellwest Stereo Theatres, Inc. v. State ex rel. Parsons, 371 So. 2d 1 (Ala.1979); General Corporation v. State ex rel. Sweeton, 294 Ala. 657, 320 So. 2d 668, cert. denied, 425 U.S. 904, 96 S. Ct. 1494, 47 L. Ed. 2d 753 (1975). The state has greater power to regulate nonverbal conduct than descriptions or depictions of the same behavior. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972); United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968).
We agree with the trial court that these injunctions of the nuisances maintained by defendants do not infringe upon the defendants' First Amendment rights of freedom of expression. This is not a case of prior restraint of exhibition of allegedly obscene materials. It matters not what movies were showing at defendants' premises. What matters is that defendants used their operation of motion picture theaters as a reason to draw customers who then used the premises as a haven for illegal sexual activity. Defendants might as well have operated a brothel.
Because operation of a movie theater necessarily entails providing a darkened place where people gather, the trial court's injunction is a permissible means by which to abate the nuisance. The defendants have demonstrated their indifference to the indecent and illegal conduct of the patrons of their darkened hallway and theater to the extent that such conduct became an integral part of the amenities for which patrons were paying an admission charge. The enjoining of such business is well within the purpose of the Red Light Abatement Act.
The trial court properly distinguished these cases from its decisions which we have affirmed in State ex rel. DeCarlo v. Tomkat, Inc., 469 So. 2d 577 (Ala.1985) and State ex rel. DeCarlo v. Pleasure Books East, Inc., [Ms. June 28, 1985] (Ala.1985). In those cases, the trial court made sustainable findings that the defendants had made bona fide efforts to prevent lewd conduct on their premises and that any such conduct was not extensive nor necessarily related to the defendants' manner of conducting their businesses. In these cases, the defendants have not even designated the transcripts of the trials as part of the record on appeal, choosing instead to accept the trial court's findings for the sake of their arguments that the trial court's injunctions violate their First Amendment rights as a matter of law.
The judgments of the trial court are affirmed.
AFFIRMED.
FAULKNER, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.
[1] The Court notes that while this appeal was pending, District Attorney DeCarlo's term expired and he was succeeded by David Barber. See Rule 43(b), A.R.A.P. | June 28, 1985 |
9166f06c-5662-4b91-8b0e-d52d6f5366bb | Old Southern Life Ins. Co., Inc. v. Spann | 472 So. 2d 987 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 987 (1985)
OLD SOUTHERN LIFE INSURANCE COMPANY, INC.
v.
Patsy L. SPANN.
No. 82-1270.
Supreme Court of Alabama.
June 7, 1985.
James W. Webb and Dan E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellant.
Oakley Melton, Jr. and Michael S. Jackson of Melton & Espy, Montgomery, for appellee.
ALMON, Justice.
Patsy L. Spann brought suit against Old Southern Life Insurance Company to recover damages for breach of contract, fraud, and bad faith refusal to pay a claim.
The case was submitted to a jury, which returned a verdict in favor of Mrs. Spann and awarded her damages of $175,000, of which $156,743.80 were punitive and $18,256.20 were for doctor and hospital bills. The trial court denied Old Southern's motions for directed verdict, new trial, and judgment notwithstanding the verdict.
In February of 1982 two agents of Old Southern contacted Mrs. Spann. After some discussion, Mrs. Spann decided to purchase a basic and a major medical policy. One of the agents read the application to Mrs. Spann and recorded her answers. The portion of the application concerning *988 the applicant's prior medical history asks whether the applicant has had any of thirty-seven physical diseases or illnesses. The section ends by asking "Has any person above consulted or been treated by any physician or practitioners in the last five years?"
Mrs. Spann testified that she gave the agent the following information:
Mrs. Spann further testified that the agent assured her that under the circumstances of this case Old Southern would contact the doctors.
Both of the soliciting agents for Old Southern testified that Mrs. Spann did not mention any disease or operation other than the hemorrhoid and gall bladder operations. They also denied that they assured Mrs. Spann that Old Southern would contact her doctors. One of these agents did not have a license to sell insurance and the other had had his license revoked (but later restored) for failing to disclose on his application that he had been convicted of two felonies.
The application shows that Mrs. Spann answered "yes" to the questions asking if she had had any disease of the digestive system, and if she had seen a physician within the last five years. In the box on the application asking for an explanation of any question answered affirmatively, the agent wrote "gall bladder" and "hemorrhoids." The application also lists both of Mrs. Spann's physicians and their addresses.
After the application was taken, Mrs. Spann paid the first year's premium. Old Southern accepted this premium and issued a policy shortly thereafter. At no time did Old Southern contact the physicians noted on the application, although the physicians had a detailed history of Mrs. Spann's medical problems, including her psychiatric treatment.
Mrs. Spann was hospitalized five times in the year after her policy was issued. In April she had a mass in her right breast excised; in July she was treated for blockage in her intestines; in October she had surgery to remove scar tissues; in November she had gastric disturbances; and in January she had stomach problems. Hospital and doctor bills for these matters totaled $18,256.20.
Frank Aspinwall, claims manager for Old Southern, and Roy T. Epperson, Sr., president of Old Southern, both reviewed the claim filed by Mrs. Spann after her April surgery. Both men agreed that the policy should be voided and rescinded because of material discrepancies between the information contained in her application and that contained in the records received from the admitting hospital. The hospital records showed that Mrs. Spann had an intestinal bypass in 1978 and has had psychiatric treatment. Mrs. Spann had been admitted to the psychiatric units of Mead Haven in 1978 and Jackson Hospital in 1981. Her condition was diagnosed as depressive reaction in 1981. She contends that the application is ambiguous and should not be construed as asking for this information. Nevertheless, on August 6, 1982, Old Southern sent a letter to Mrs. Spann voiding her policy and refunding the premiums paid.
Old Southern argues that the trial court committed reversible error in denying its motion for directed verdict on the bad faith claim.
*989 In National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982), we said:
417 So. 2d at 183.
In National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357 (Ala.1982), a plurality of this Court quoted the above language from Bowen and added:
Id., at 1362.
It is clear that this is not a case in which a directed verdict should be granted for the plaintiff on the contract claim. Old Southern asserts that it may deny the claim under the authority of Code 1975, § 27-14-7, because of Mrs. Spann's omissions or concealment of material facts. In an action for breach of contract there would be at least one issue of lawwhether the application was ambiguous in relation to psychiatric treatmentand several issues of facte.g., whether Mrs. Spann mentioned her intestinal bypass surgery and whether the agents assured her they would ascertain her complete medical history from her doctors. If a jury found in her favor on these issues, she might recover in contract or in fraud, but Old Southern is not guilty of bad faith refusal to pay for raising these defenses.
It is undisputed that Mrs. Spann did not mention her psychiatric treatment. An insurer has a right to expect applicants for insurance policies to tell the truth. Old Southern has at least an arguable position that the application requested information that would include her psychiatric treatment. Mrs. Spann certainly knew of this treatment and she did not reveal it. An insurance company does not normally have a duty to inquire further to verify that an applicant has told it the truth. While Old Southern may have undertaken a duty in *990 this case to make inquiries of her doctor, the failure to do so does not support a bad faith action in these circumstances. The psychiatric treatment is so different in kind from the surgeries, as to which the agents allegedly agreed to ascertain the specific nature, that Old Southern is entitled to raise her failure to mention it as a defense. This factor distinguishes the instant case from Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981).
Because Mrs. Spann did not prove the lack of an arguable reason to deny her claim, the trial court erred in denying Old Southern's motion for directed verdict on the bad faith claim. Where a trial court denies a defendant's motion for directed verdict on a count which is not supported by the evidence, a reviewing court may not presume that the jury returned its general verdict on a count which is supported by the evidence. John Deere Indus. Equipment Co. v. Keller, 431 So. 2d 1155 (Ala. 1983). We cannot presume that the jury returned its general verdict on Mrs. Spann's contract or fraud causes of action.
We therefore reverse the judgment and remand the cause for a new trial on the contract and fraud claims.
REVERSED AND REMANDED.
All the Justices concur. | June 7, 1985 |
7fc78729-4b05-4799-8fa2-c7cb9a4f6eb5 | Strait v. Vandiver | 472 So. 2d 1034 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1034 (1985)
James R. STRAIT
v.
Ross VANDIVER and Carolyn Vandiver.
84-175.
Supreme Court of Alabama.
June 7, 1985.
*1035 Lindsey G. Mussleman of Holt, McKenzie, Holt & Mussleman and Keith M. Collier, Florence, for appellant.
Gary W. Alverson, Tuscumbia, for appellees.
FAULKNER, Justice.
This is an appeal from a judgment for plaintiffs in a suit based on claims of breach of a lease agreement and conversion. We affirm.
On November 10, 1981, James Strait and his wife Elizabeth, (now deceased)[1] entered into a lease and purchase agreement with Ross and Carolyn Vandiver, whereby the Vandivers agreed to rent from the Straits a restaurant business in Muscle Shoals, Alabama. The agreement provided that the Vandivers would rent the restaurant building for $1,000.00 per month, payable on the fifteenth of each month. Additionally, the Vandivers agreed to purchase the equipment in the building for the sum of $30,000.00, payable in monthly installments of $446.19, with $9,000.00 down.
The agreement also contained provisions requiring the Vandivers to maintain the premises and equipment in good condition. It was also required that replacements be made of all worn or broken items, and any replacement item was to be considered as retained by the owner of the building. The agreement also provided that after a ten-day continuation of any breach, including failure to pay rent, the agreement could be terminated.
After the lease was signed, the Vandivers did extensive repair and clean up work in order to get the restaurant in shape to open. Special equipment and stock had to be purchased and installed to adapt the restaurant to sell alcoholic beverages. The restaurant opened around the first of January 1982.
On February 1, the Vandivers entered into another agreement with Strait to lease the building adjacent to the restaurant. The Vandivers used this building to operate a liquor store. The rent on the liquor store was $600.00 per month, payable on the first of each month.
The Vandivers also planned to lease a third building from Strait to use as a wholesale and retail barbecue operation. Although Strait did extensive repair work on the building, the lease was never signed.
On June 16, Strait locked the Vandivers and their employees out of the restaurant and the liquor store, allegedly because of non-payment of rent and bills. The Vandivers filed suit for breach of the lease agreement and for conversion of equipment, stock, and personal property. Strait denied all allegations in the complaint and counterclaimed for breach of the agreement and conversion.
The case was tried before a jury in the Circuit Court of Colbert County. The jury found in favor of the Vandivers in the amount of $45,000.00, and against Strait on *1036 his counterclaim. After his motion for new trial was denied, Strait appealed.
The first issue before this Court is whether the verdict is supported by sufficient evidence. Upon review of this case, we find that there was sufficient evidence to support the jury's verdict.
It is well settled that jury verdicts are presumed correct and will not be overturned on appeal unless plainly and palpably wrong and against the great weight of the evidence. Cammorata v. Woodruff, 445 So. 2d 867 (Ala.1984). A trial court's denial of a motion for new trial strengthens that presumption of correctness of the verdict. Smith v. Blankenship, 440 So. 2d 1063 (Ala.1983). The appellate court will review the tendencies of the evidence most favorable to the prevailing party and will indulge such reasonable inferences as the jury was free to draw. Mahoney v. Forsman, 437 So. 2d 1030 (Ala.1983).
In the instant case, Strait argues that the evidence requires a finding in his favor on his counterclaim. He argues that the testimony indicated that the Vandivers had breached the lease and purchase agreement by failing to pay the rent when due, by falling behind on the utility and insurance bills, by failing to keep the premises maintained, and by making interior alterations without the owner's express permission.
The jury heard all of the controverted evidence as to whether the Vandivers were delinquent on their rent and whether they had maintained the premises in accordance with the terms of the lease agreement. The jury was free to reasonably conclude that Strait, rather than the Vandivers had breached the agreement by locking the Vandivers out of the restaurant and liquor store without sufficient reason for doing so.
Additionally, the jury could also have reasonably found for the Vandivers, and against Strait on the conversion claims. The Vandivers testified to an extensive list of equipment, stock and personal effects, valued by them at over $30,000.00, which was left in the restaurant when they were locked out. The evidence indicated that these items were never returned to the Vandivers.
We are not persuaded by Strait's argument that he was entitled to ownership of these items based upon the lease provisions. The agreement only provided that replacements for worn or broken equipment would be retained by the owner. There was sufficient testimony to indicate that most of the items left in the buildings clearly could not be considered as replacements.
We are also not persuaded by Strait's contention that he was entitled to damages for property belonging to him and taken to the Vandivers' home. The evidence indicated that the Vandivers removed a portion of a cafeteria line, some tables, and a booth when they originally began to clean up the restaurant. There was evidence that this property was removed with Strait's permission and full knowledge. Therefore, the jury was free to determine that Strait had not sufficiently proved his claim for conversion.
Finally, Strait argues that the jury should have found in his favor on the basis of promissory estoppel. He contends that in reliance upon the Vandivers' oral agreement to lease the barbecue operation he expended over $23,000.00 for remodeling and renovations of the building. Despite Strait's argument, we cannot consider this issue here, as it was not properly preserved for our review. The trial court did not charge the jury on the issue of promissory estoppel and no objections or exceptions were made to the court's failing to give such an instruction.
Therefore, based upon the foregoing discussion, we affirm the judgment of the trial court.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.
[1] Although Elizabeth Strait was a party to some of the transactions involved in this appeal, since she is now deceased, we shall refer only to James Strait as the defendant-counterclaimant. | June 7, 1985 |
77859cc1-2487-4778-a84d-f45090de147b | Ex Parte Birmingham Southern Railroad Company | 473 So. 2d 500 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 500 (1985)
Ex parte BIRMINGHAM SOUTHERN RAILROAD COMPANY.
(Re: Carey BOSTON, Jr. v. BIRMINGHAM SOUTHERN RAILROAD COMPANY).
84-7.
Supreme Court of Alabama.
June 14, 1985.
*501 William C. Knight, Jr. and Maura R. Goodwyn of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for petitioner.
Michael A. Florie and F. Tucker Burge of Burge, Florie, Powell & Wettermark, Birmingham, for respondent.
EMBRY, Justice.
This petition for writ of mandamus seeks to require the transfer of Carey Boston, Jr's, Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. (FELA), action against Birmingham Southern Railroad Company to the Bessemer Division of the Tenth Judicial Circuit. The writ will be granted conditionally.
Boston suffered the injuries, on account of which he seeks damages from the railroad, in the Bessemer Cut-Off of Jefferson County. As noted by Presiding Judge Bryan of the Birmingham Division of the Tenth Judicial Circuit, the motion to transfer presents the vexing problem of venue vis-a-vis jurisdiction in this case. The decisions of this court have not dealt with this problem within the precise context in which it is now presented, as far as the author of this opinion can determine.
Boston contends that jurisdiction is governed by the FELA itself and the question is one solely of venue. Because of the act of the legislature creating the Bessemer Division (Act. No. 281, Acts of Alabama, 1892-1893, with the last amendment being in 1943, Local Acts 1943, p. 105), we cannot agree. That act gives exclusive jurisdiction to the Bessemer Division of civil suits arising in the Bessemer Division and is limited to causes of action arising therein. It is axiomatic that a personal injury action arises where the injury occurs and therefore this action is only maintainable in the Bessemer Division. See Metro Bank v. Real Coal Co., 374 So. 2d 296 (Ala.1979); also see Hopmann v. Southern Pacific Transportation Co., 581 S.W.2d 532 (Texas Civ.App.), cert. denied, 444 U.S. 870, 100 S. Ct. 146, 62 L. Ed. 2d 94 (1979).
The United States Supreme Court has held on numerous occasions that Congress, in enacting the FELA, made no attempt to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure. See Mondou v. New York, New Haven & Hartford Railroad Co., 223 U.S. 1, 56, 57, 32 S. Ct. 169, 177, 178, 56 L. Ed. 327 (1912).
Accordingly, the trial court should order this case transferred to the Bessemer Division of the Circuit Court of Jefferson County. In the event that court fails to do so, then, upon application of petitioner this court will issue the writ of mandamus to compel such action.
WRIT OF MANDAMUS GRANTED CONDITIONALLY.
FAULKNER, ALMON and BEATTY, JJ., concur.
TORBERT, C.J., and MADDOX, JONES, SHORES and ADAMS, JJ., concur specially.
*502 SHORES, Justice (concurring specially):
I write specially to express my views with regard to the holding here as it relates to the expressions of the entire Court in Glenn v. Wilson, 455 So. 2d 2 (Ala.1984). I believe the cases are consistent if one understands the context in which Justice Embry's opinion uses the expression "jurisdiction."
The use of the word "jurisdiction" in that opinion should not be construed to mean that Local Act No. 213 ousted the Birmingham Division of the Jefferson Circuit Court of its power to adjudicate civil actions arising in the Bessemer Cutoff. It simply means that if the civil action did arise there and suit is brought in the Birmingham Division, and that fact is timely raised by the defendant, the court must transfer the action to the Bessemer Division under § 12-11-11, Ala.Code 1975.
I agree that the cause should be transferred, because Local Act No. 213, Acts of Alabama 1919, amended 1943, Local Acts 1943, p. 105, requires that all actions arising in the Cutoff must be brought there; and, if such an action is filed in Birmingham, it must be transferred as provided by § 12-11-11, Code (unless the defendant waives its right of transfer). That section reads as follows:
Glenn v. Wilson, 455 So. 2d 2 (Ala.1984).
I further agree that the fact that this is an FELA case is of no consequence. Section 12-11-11 is applicable here, as in any other civil action, and it requires the transfer to the court where it "should have been brought."
I acknowledge that an FELA case, whenever it arises, may be brought in any county where venue is appropriate and that the defendant cannot compel transfer to the county in which the cause of action arose. This is so because there is no corresponding legislation giving (as does Local Act No. 213) the defendant the right to transfer to the county wherein the cause of action arose.
For these reasons, I agree that the case should be transferred to the Bessemer Division.
TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur. | June 14, 1985 |
8017ba29-b11c-41df-839b-fae27d98c73d | Harbin v. ALA. PUBLIC SERVICE COM'N | 474 So. 2d 63 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 63 (1985)
Ira T. HARBIN, d/b/a Harbin Freight Line
v.
ALABAMA PUBLIC SERVICE COMMISSION; Jim Sullivan, as President; Lynn Greer, as Associate Commissioner; Jim Folsom, Jr., as Associate Commissioner of the Alabama Public Service Commission; Petrey Freight Line, Inc., a corporation.
83-1096.
Supreme Court of Alabama.
June 21, 1985.
*64 J. Douglas Harris of Harris & Harris, Montgomery, for appellant.
Justice D. Smyth III and Philip H. Butler of Robison & Belser, Montgomery, for appellee Petrey Freight Line.
Charles A. Graddick, Atty. Gen., for appellee Alabama Public Service Com'n.
MADDOX, Justice.
Harbin Freight Line appeals from the judgment of the Circuit Court of Crenshaw County affirming an order of the Alabama Public Service Commission (APSC), which issued a motor carrier certificate of public convenience and necessity to appellee Petrey Freight Line, Inc.
Petrey Freight Line presently holds contract carrier authority from the APSC to haul merchandise owned by Petrey Wholesale Company after Petrey Wholesale has acquired title to the merchandise.
Petrey Freight Line applied for authority to institute a new operation as a common carrier in intrastate commerce between Montgomery and Petrey, Alabama, over irregular routes, to transport the following:
Harbin Freight Line challenged this application. After a hearing, the appointed administrative law judge found that there was insufficient evidence to demonstrate that existing service was inadequate and he recommended that the application be denied.
Petrey Freight Line filed its exceptions to the report and recommended order, stating that it had proved a public need for the services outlined in its application; that it was fit, willing, and able to properly perform the service proposed; and that the proposed service was and will be required by the present and future public convenience and necessity. Petrey Freight Line stated that the only reason Harbin Freight Line could offer for denying its application was that a grant of this authority would reduce Harbin Freight Line's revenues.
Harbin Freight Line filed its replies to Petrey Freight Line's exceptions. Harbin Freight Line stated that the applicant failed to carry its burden of proof; that the evidence failed to show any advantages to the public of the proposed service; and, that existing transportation service is adequate to meet the reasonable public needs. Harbin Freight Line stated that the evidence shows that a grant of this authority would result in a detriment to Harbin Freight Line.
The APSC found that the administrative law judge accurately summarized the evidence presented, but erred in his conclusions and recommendations. The APSC granted the application after finding that "the testimony show[ed] that the applicant [had] met the burden of proof necessary to show that public convenience and necessity requires the proposed service, and that such proposed service will be superior to existing service to Petrey, which the record shows has been provided in an untimely fashion." Harbin Freight Line appealed to the circuit court, which affirmed the APSC's decision. Harbin Freight Line appeals here, contending that the APSC's decision to reject the administrative law judge's recommendations was not supported by legal evidence and that the APSC erroneously granted the application to Petrey Freight Line to the prejudice of Harbin's substantial rights.
Pursuant to Code 1975, § 37-1-124, "The commission's order shall be taken as prima facie just and reasonable." The order may be set aside if the court finds that "(1) The commission erred to the prejudice of appellant's substantial rights in its application of the law; or, (2) The order, decision or award was procured by fraud or was based *65 upon a finding of facts contrary to the substantial weight of the evidence."
Where the evidence was presented ore tenus and was heard by a hearing examiner and not by the commission members themselves, the presumption of correctness normally accorded to the commission's order will be accorded to the hearing examiner's findings of fact. Although the ore tenus rule mandates that a presumption of correctness be accorded a hearing examiner's findings of fact when he, alone, has heard the evidence, the ore tenus rule does not also mandate a presumption of correctness in favor of the examiner's conclusions of law. Southern Haulers, Inc. v. Alabama Public Serv. Comm'n, 331 So. 2d 660 (Ala.1976); Hodges Transfer Company v. Alabama Public Serv. Comm'n, 376 So. 2d 680 (Ala.1979), cert. dismissed, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980); Vann Express, Inc. v. Bee Line Express, Inc., 347 So. 2d 1353 (Ala.1977).
Here, the APSC's findings of fact and conclusions of law are to be taken as prima facie just and reasonable, even though the APSC's conclusions of law differed from those of the administrative law judge because the conclusions of law by the APSC are supported by the administrative law judge's findings of fact. Ross Neely Express, Inc. v. Alabama Public Serv. Comm'n 431 So. 2d 1214 (Ala.1983).
The issues before the Supreme Court for decision on appeal from the circuit court are whether the Public Service Commission erred in applying the law to the facts found or whether the order was based on a finding of facts contrary to legal evidence of substantial weight. Illinois Cent. R. Co. v. Thomas Alabama Kaolin Co., 275 Ala. 236, 153 So. 2d 794 (1963); Alabama Public Serv. Comm'n v. Southern Ry. Co., 269 Ala. 63, 111 So. 2d 214 (1959).
The standard this Court must apply in ascertaining whether the APSC order is supported by substantial evidence is set forth in Code 1975, § 37-3-11, which provides as follows:
Utilizing the above statutory standard, and having carefully reviewed the record, we must conclude that the order of the APSC is supported by credible, competent, and substantial evidence. Thus, we affirm the order of the circuit court which affirmed the order of the APSC.
The record indicates (1) that the applicant is fit and willing and has the ability to properly perform and comply with applicable regulations of the commission; (2) that there is a lack of existing transportation service to meet reasonable public needs; and (3) that there are public advantages in having the proposed service. The applicant has been in business for two and a half years as a contract carrier, and during that time its business has quadrupled. The company is equipped with ten 18-foot closed vans and one 35-foot tractor-trailer. In addition, the company has an office it maintains during the entire business day which is equipped with computerized services to aid in tracing late shipments.
*66 Petrey Freight Line's application was supported by the testimony of six witnesses who represent shippers and freight recipients. All witnesses complained that they had difficulties in communicating with the existing carrier, Harbin Freight Line, especially when attempting to trace shipments. In addition, these witnesses testified that their volume of business had greatly increased over the past few years and that delivery service by the existing carrier had slowed down during the same period. Although these witnesses also testified that they have not filed complaints about their shipments or could not say that Harbin's service was unsatisfactory, we, nevertheless, conclude that the APSC decision is supported by relevant evidence which a reasonable mind might accept as adequate to support the APSC's conclusion that the proposed service is required by public convenience and necessity.
Having found that the Alabama Public Service Commission order is supported by substantial evidence and, thus, that there was no misapplication of the law to the prejudice of Harbin Freight Line's substantial rights, we affirm the judgment of the circuit court.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | June 21, 1985 |
b755aef1-9bbc-44fb-bb7d-22f1f546a918 | Baker v. Edgar | 472 So. 2d 968 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 968 (1985)
Willis H. BAKER
v.
H.D. EDGAR.
Margaret BAKER
v.
H.D. EDGAR.
83-506 & 83-507.
Supreme Court of Alabama.
May 31, 1985.
*969 W. Sidney Fuller, Andalusia and Bryant A. Whitmire, Jr., Whitmire, Coleman & Whitmire, Birmingham, for appellants.
J.M. Albritton, Albrittons & Givhan, Andalusia, for appellee.
EMBRY, Justice.
In this negligence suit arising out of an automobile accident, the jury returned a verdict in favor of the plaintiffs, Walter and Rosalie Gaines, and defendant crossclaimant, H.D. Edgar, and against defendant Willis H. Baker and counterclaim intervenor Margaret Baker. The trial court entered judgment on that verdict and denied the Bakers' motion for new trial. Mr. and Mrs. Baker appeal, claiming the trial court erred in refusing to allow the Bakers' expert witness, Charles N. White, to state his opinion as to the point of impact of the vehicles involved in the accident.
The accident, the basis for this suit, occurred on 2 September 1982 on U.S. Highway 331 in Covington County, Alabama. At the time of the accident, Baker was traveling north on U.S. 331. His truck was followed by an automobile driven by an Episcopal priest, the Reverend Sam Westbrook. Both Baker and Westbrook testified that Baker was in his proper lane when the initial impact occurred. Westbrook testified that he could not see the point of impact, but stated he had seen Edgar's vehicle weaving across the center line just prior to the accident. Baker testified the Edgar vehicle drifted slightly over into the northbound lane, causing the collision.
H.D. Edgar was traveling south on Highway 331, followed by his employee, Walter Gaines. Edgar and Gaines both testified that Baker swerved into the southbound lane, causing the collision. The primary issue at trial was the location of the point of impact.
Mr. and Mrs. Baker called as their witness Charles N. White, Sr. It was not disputed that White was an expert in the field of accident investigation and reconstruction. Mr. White had served as a district supervisor for the Florida State Highway Patrol where he had extensive training in both investigation and reconstruction of motor vehicle accidents and where he instructed troopers in both investigation and reconstruction. White served as a traffic accident investigation and reconstruction instructor for Gulf Coast Community College. He instructed agents of the Transport Investigation Company in these areas. White had completed four or five hundred accident reconstructions, from the standpoint of total reconstruction, to time of trial. He devoted 50% of his time to accident investigation and reconstruction and had testified in both state and federal courts as an expert in accident investigation and reconstruction.
White's investigation of the subject accident was made at the request of Transport Investigation Company and was conducted five days after the accident. White investigated the scene, made measurements of the physical evidence at the scene, confirmed depiction of the scene and physical markings with the investigating trooper, made a field sketch of the scene and the physical evidence thereat, and inspected the vehicles involved in the accident. White also reviewed all the photographs made exhibits at the trial.
Baker attempted to develop testimony from White as to the point of impact in the highway between the Baker and Edgar vehicle. Counsel for Edgar made a specific objection that the point of impact was for the jury to decide; counsel contended that before expert testimony is admissible, it should appear that the jurors themselves are incapable for want of knowledge or experience of the subject matter of drawing correct conclusions from the facts *970 proved and that admission of such evidence would constitute an invasion of the province of the jury. The trial court sustained Edgar's objection.
A more complete statement of the rule in Alabama concerning the admissibility of expert testimony as to the point of impact was given in Sharp v. Argo-Collier Truck Lines Corp., 356 So. 2d 147 at 149 (Ala. 1978): "the admissibility of the substance of [an expert's] opinion testimony is governed by the rule that opinion testimony as to the location of the point of impact of a collision is proper where the witness first details the facts upon which his conclusion is based."
It is well settled that any challenge to the facts upon which an expert bases his opinion goes to the weight, rather than the admissibility, of the evidence. Dyer v. Traeger, 357 So. 2d 328, 330 (Ala.1978).
Our careful review of the record in this case reveals that the opinions of trained experts as to the point of impact of the automobiles involved in the subject collision would have been of great assistance to members of the jury. The three eyewitnesses to the impact were interested parties and the factual evidence was susceptible to various interpretations.
We conclude, therefore, that White's testimony as to the point of impact, when offered subsequent to his detailing the facts on which that testimony was based, should have been admitted. Considering the totality of the record, that error was prejudicial to Willis and Margaret Baker. For the above stated reasons, the judgment of the trial court is due to be reversed and this cause remanded to that court for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER and ADAMS, JJ., concur.
ALMON, J., concurs in the result. | May 31, 1985 |
96cda691-3040-481b-96c3-417ac4807d7a | Secrist v. Mark IV Constructors, Inc. | 472 So. 2d 1015 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1015 (1985)
Michael Jerome SECRIST
v.
MARK IV CONSTRUCTORS, INC.
83-1319.
Supreme Court of Alabama.
June 7, 1985.
*1016 Joseph M. Brown, Jr. and Richard E. Browning of Cunningham, Bounds, Yance, Crowder, & Brown, Mobile, for appellant.
Victor T. Hudson and Stephen E. Clements of Reams, Vollmer, Philips, Killion, Brook & Schell, Mobile, for appellee.
BEATTY, Justice.
Appeal by plaintiff, Michael Jerome Secrist, from summary judgment for defendant, Mark IV Constructors, Inc. (Mark IV). We affirm.
Defendant Mark IV was the general contractor constructing a building on the campus of Jefferson Davis Junior College in Brewton. Progressive Roofing and Fine Sheet Metal Company, Inc., (Progressive) was the subcontractor engaged by Mark IV to perform certain roofing and sheet metal work on the building. Plaintiff Secrist was an employee of Progressive working on the job at Jefferson Davis Junior College. While in the process of moving toeboards once used by Progressive employees to aid in the application of shingles to the building's roof, Secrist fell and was injured. Plaintiff Secrist filed a complaint against Mark IV and also against several co-employees. Following further pleading and discovery, Mark IV moved for summary judgment, based upon "the pleadings, the depositions on file, the discovery requests and the responses thereto," and a brief in support of the motion. In due course, the trial court, in an order made final pursuant to Rule 54(b), A.R.Civ.P., granted summary judgment in favor of Mark IV. Plaintiff appeals from that summary judgment.
The familiar principle applicable to summary judgment is stated in Bryant v. Morley, 406 So. 2d 394, 395 (Ala.1981):
Or, as stated in Campbell v. Southern Roof Deck Applicators, Inc., 406 So. 2d 910, 913 (Ala.1981):
Plaintiff contends that the general contractor owed a duty to the employees of the subcontractor to exercise reasonable care to keep the premises of the job site in a reasonably safe condition, and further contends that summary judgment was inappropriate because the facts establish that the general contractor failed to furnish safety belts to the subcontractor's roofer, Secrist, as required by the condition of the roof in question. Plaintiff cites us to the cases of Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So. 2d 87 (1967), and Knight v. Burns, Kirkley & Williams Construction Co., 331 So. 2d 651 (Ala.1976), as authority for this position.
In the Southern Minerals case, an employee of a subcontractor was engaged as a brickmason's helper in constructing a manhole in a sewer line which had been excavated by a general contractor. The walls of the excavation caved in, injuring the subcontractor's employee, who subsequently brought an action against the general contractor for negligently failing to provide a reasonably safe place for the employee to work. That decision explained the legal relationship of the general contractor to the employee of a subcontractor and the duty owed by the former to the latter, at 281 Ala. 80-81, 199 So.2d 90-91:
"The following is from Lamson & Sessions Bolt Co. v. McCarty, (234 Ala. [60] at 63, 173 So. [388] at 391 [1937]):
In support of his contention that the roof was a dangerous condition requiring the use of a safety belt, plaintiff quotes from the deposition of Harvey Hill, a former employee of Progressive Roofing on the Jefferson Davis Junior College job:
Plaintiff contends that the accepted standard in the roofing industry required that safety belts be used on this particular job, and that this was brought to the attention of the on-site supervisor for Mark IV, who thereafter failed to take the necessary action in providing safety belts. Both Hill and plaintiff Secrist deposed that they asked this supervisor, John Peavy, for the safety belts. Plaintiff stated:
According to plaintiff, Peavy acknowledged in his deposition his authority to oversee the general safety of the job:
With respect for plaintiff's argument, nevertheless, the authority which Mr. Peavy possessed in this relationship with his own employer does not furnish the answer to the basic legal question posed by these facts, i.e., what was the legal relationship between Mark IV and Secrist? The answer lies in the analysis of their respective positions as invitor and invitee, as discussed in Southern Minerals, supra. As invitor, Mark IV, the general contractor, was under a duty to have the premises free from danger, or if they were dangerous, to give his invitee, Secrist, sufficient warning to enable him, through the exercise of reasonable care, to avoid the danger. This duty includes the duty to warn the invitee of danger of which the invitor knows or ought to know, and of which the invitee does not know. Authorities cited, supra.
It is well settled that "an owner [general contractor] is not responsible to an independent contractor [subcontractor] for injury from defects or dangers which the contractor *1020 knows of, or ought to know of. If the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor and if he does not do this, of course, he is liable for resultant injury." Veal v. Phillips, 285 Ala. 655, 657-8, 235 So. 2d 799, 802 (1970). This principle was applied in Quillen v. Quillen, 388 So. 2d 985, 989 (Ala.1980), which quoted the rule applicable to an invitor-invitee relationship:
From the material before the trial court and furnished by the plaintiff himself, the dangerous slope of the roof in question, and any concommitant need for safety belts while working thereon, was at the very least as well known to the plaintiff as it was to the general contractor. It certainly was not a danger unknown to the employee-invitee, for he was one of those who called it to the attention of his own employer's foreman, Jim Ward. Plaintiff's own deposition established that it was Progressive's foreman, Ward, who decided that safety belts would not be used:
If, therefore, the slope of the roof constituted a dangerous condition, under the facts of this case, it was an open and obvious danger which the plaintiff should have recognized and, in fact, did recognize. Under those facts, the general contractor cannot be held liable for the injuries plaintiff sustained when he fell from that roof.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | June 7, 1985 |
89677098-7ec1-4e34-b057-d17f1df89bfb | Sidwell v. Wooten | 473 So. 2d 1036 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1036 (1985)
Al C. SIDWELL a/k/a A.C. Sidwell
v.
Avolee Dunn WOOTEN, Lowder Realty Co., and Canterbury Realty Co.
No. 83-1318.
Supreme Court of Alabama.
June 21, 1985.
*1037 George Young, Birmingham, for appellant.
Thomas E. Baddley, Birmingham, for appellees.
MADDOX, Justice.
This is an appeal from the judgment of the Circuit Court of Jefferson County in a case alleging breach of contract in the sale of commercial real estate.
Al Sidwell, defendant/appellant, is the owner of real property located at 2204 First Avenue, South, Birmingham. This property was leased for five years and the tenant was granted an option to purchase the property or to renew the lease for an additional five-year term.
The owner, Sidwell, and the tenant, Avolee Dunn Wooten, negotiated from November of 1981, through June of 1982, concerning the purchase of the property. Sidwell represented that he was willing and able to perfect the sale of the building. He indicated that there was a purchase option and an outstanding mortgage on the building, but that the purchase option could be negotiated and the mortgage could be assumed. Sidwell and Wooten entered into a sales contract on June 17, 1982. In compliance with the agreement, Wooten tendered the purchase price to Sidwell and requested that he convey the land. Sidwell, however, refused to accept the tender and refused to make the conveyance.
Wooten brought suit against Sidwell for specific performance and breach of contract. At the hearing, Wooten dismissed her prayer for specific performance and included a prayer for compensatory and punitive damages on her breach of contract claim. Lowder Realty and Canterbury Realty, not originally parties, filed what they styled a "third-party complaint" against Sidwell seeking a real estate commission which they claim they are entitled to for bringing the buyer and seller together.
The circuit court found in favor of Wooten and awarded her $39,760 as compensatory damages. In addition, the court found in favor of the realty companies, and awarded them $18,250, as their 7% real estate commission. Sidwell appeals here, raising three issues.
Before addressing these issues, however, we will first address a question we raised on our own: Whether the $18,250 judgment in favor of Lowder Realty and Canterbury Realty Co. should be reversed because they were never properly made parties plaintiff in the circuit court having filed a "third-party complaint" instead of a motion to intervene, Rules 14 and 24, Ala.R.Civ.P., or, alternatively, whether we should interpret the "third-party complaint" as a motion to intervene which the court granted.
We find that in order to do "substantial justice" in compliance with Rule 8(f), Ala.R.Civ.P., the "third-party complaint" should be interpreted as a motion to intervene granted by the circuit court. We believe this is the just result, especially in view of the fact that Sidwell did not object *1038 to the filing of the "third-party complaint" and did not otherwise raise the issue in the trial court or on appeal.
The real estate contract involved clearly indicated that the realty companies were entitled to a commission once the contract was consummated. In addition, if the realty companies are excluded from this suit, they would be obliged to file a separate suit and prove once again what they have already proven.
We believe the interests of justice will best be served by treating the realty companies' "third-party complaint" as one of intervention, because of several reasons. Sidwell had notice of the claims and was afforded due process in the current litigation. Neither Sidwell nor the circuit court, on its own motion, raised any issue or argument regarding whether the realty companies were proper parties. The realty companies had a definite interest in the lawsuit both legally and factually. To void the judgment would not comply with the spirit of our procedural rules, which must be construed "to secure the just, speedy and inexpensive determination of every action" on its merits. Rule 1(c), Ala.R.Civ.P. It appearing that the "third-party complaint" was treated by the trial court as a motion to intervene, which was granted, we hold that the procedural requirements were met.
As to the issues raised on appeal, Sidwell first contends that the circuit court erred in allowing a certified public accountant to testify regarding the content of the leases, because the witness later testified that he had not examined the leases but was testifying based on what he had been told they contained.
The testimony regarding the leases was as follows:
And further, on cross-examination:
The testimony allowed into evidence at trial regarding the lease was as follows:
As the circuit court found when reviewing Sidwell's motion for new trial, "it appears that the objections to evidence regarding the subject lease were general objectionsdefendant's counsel said `we object to that' and did not specify any ground of objection." C. Gamble McElroy's Alabama Evidence, § 426.01(10) (3d ed. 1977) sets forth the test to determine when a general objection, if overruled, is sufficient to predicate a claim of error on appeal. The test is as follows:
McElroy, supra, at 801-02.
We find that the evidence regarding the lease was material, relevant, and not illegal. The accountant's testimony was not admitted to prove the contents of the lease, but rather was offered to demonstrate the amounts he used to obtain his damage estimates, and, therefore, the admission of this evidence was not an error.
Secondly, Sidwell contends that Donald Zegarelli of Lowder Realty had a fiduciary duty to Sidwell, that this duty obligated Zegarelli to determine if the outstanding option to purchase would vitiate the real estate contract involved here, and that failure to do so resulted in a breach of Zegarelli's fiduciary duty. Sidwell argues that Zegarelli had full knowledge of the outstanding purchase option but obtained the signatures of the purchaser and seller anyway.
We decline to address the merits of this argument because, after reviewing the record, we find that this defense was not raised at any time during the trial.
Sidwell raised this issue in his motion for new trial. The trial court denied the motion. The ruling denying a motion for new trial is presumed correct until shown to have been a plain and palpable abuse of discretion. Stauffer Chemical Co. v. Buckalew, 456 So. 2d 778 (Ala. 1984). No such abuse has been shown in this case.
Finally, Sidwell, represented by different counsel on appeal, argues that he is entitled to relief from the circuit court's judgment because he had incompetent or ineffective counsel at trial, and that an examination of the entire record demonstrates that he was not afforded a fair trial because of this.
In an ordinary civil case, the general rule regarding ineffective assistance of counsel is that relief from a court's judgment when a party hired his own lawyer will not be granted on the grounds of incompetent or ineffective counsel.
Sidwell's new lawyer claims that trial counsel cross-examined the accountant and then rested without presenting any evidence. Sidwell's new lawyer also asserts in his brief that the record is void of testimony from Sidwell "which could have refuted the testimony of [Wooten and the realty companies]" and that Sidwell was given "no opportunity to present the lease in question." Sidwell concludes, therefore, that "the results here are clear that [he] did not obtain a fair trial." Sidwell urges this Court to consider evidence which was not presented at trial to determine whether he received a fair trial. This we cannot do. *1040 The general rule, stated above, is applicable in this case, and we must deny Sidwell relief on this ground.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | June 21, 1985 |
5daf8c96-fce2-4292-b721-4aca59036360 | Ray v. ALA. CENT. CREDIT UNION | 472 So. 2d 1012 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1012 (1985)
James A. RAY and Wanda J. Ray
v.
ALABAMA CENTRAL CREDIT UNION.
83-1258.
Supreme Court of Alabama.
June 7, 1985.
*1013 Robert H. McKenzie, Florence, for appellants.
Larry M. Smith, Florence, for appellee.
ADAMS, Justice.
This appeal arises from a judgment entered in the Circuit Court of Lauderdale County, wherein the court determined that the defendants, James Ray and Wanda Ray, owed the Alabama Central Credit Union a balance on two promissory notes. We affirm.
The salient facts in the litigation are as follows.
On January 31, 1979, Alabama Central Credit Union loaned appellant James Ray $64,864.82, plus an advancement of $9,000.00, or a total of $73,864.82. Ray executed a promissory note to the Credit Union for the $73,864.82, plus interest at 12% per annum. The promissory note was secured by a real estate mortgage from Ray to the Credit Union on a 2.5-acre tract of land.[1]
On August 3, 1979, James Ray and Wanda Ray executed a promissory note for $10,152.80, plus 12% interest per annum, to Central Bank of Alabama. This note was secured by a real estate mortgage given by James and Wanda Ray to Central Bank on a 5-acre tract of land. Also, the bank was given a second mortgage on the 2.5-acre tract.
The Rays defaulted on their payments under the Central Bank note, and Central Bank subsequently initiated foreclosure proceedings. It was at this time that the parties learned that the Credit Union had a first mortgage only with respect to the 2.5-acre tract, and that Central Bank had a first mortgage on the 5.0-acre tract, rather than the Credit Union having a first mortgage on all 7.5 acres, as was originally intended by the parties. Once this was discovered, the Credit Union and James Ray discussed the possibilities of correcting the mistake.
During these discussions it was learned that the house which was built on the property sat partially on both parcels of land, with all but approximately ten feet resting on the 5.0-acre tract. Based upon their discussions and discoveries, the Credit Union decided to purchase the note and mortgage held by Central Bank, and the Rays agreed to execute deeds in lieu of foreclosure, with waiver of equity of redemption, to the Credit Union. This they did on August 31, 1981.
On September 1, 1981, the Credit Union executed an agreement to the Rays stating that any sums received from a sale of the subject property in excess of the mortgage debt and lawful charges would be paid over to the Rays. The Credit Union sold the house and two tracts of land as one parcel for $62,000.00, and applied all of the proceeds from the sale to the debt secured by the 2.5-acre tract ($73,864.82), which left intact the entire debt owed by James and Wanda Ray secured by the 5.0-acre tract. The Credit Union then sued the Rays for the balance remaining on each promissory note. The trial court ordered the Rays to pay the amounts owed on each note, plus interest, attorney's fees, and costs. After their motion for a new trial was denied, the Rays filed this appeal.
The appellants raise two issues for our review:
The Rays argue that the execution of the deeds in lieu of foreclosure with waiver of equity of redemption, coupled with their acceptance by the Credit Union, establishes, as a matter of law, all the elements necessary for an accord and satisfaction which would extinguish the debts owed by the Rays to the Credit Union, regardless of intention disclosed or undisclosed. The Rays argue further that the Credit Union misapplied the proceeds from the sale of the house and land. According to them, 90% of the house was located on the 5.0-acre tract; thus, they say the proceeds from the sale should have been applied, at least proportionately, to pay the $10,152.80 promissory note that pertained to the 5.0-acre tract. The Rays argue that the Credit Union's failure to apply any of the proceeds to the debt owed on the 5.0-acre tract was inequitable, improper, and illegal. We do not agree with either of these contentions.
First, the Rays' argument that, as a matter of law, there was an accord and satisfaction in this case, is without merit. The Court addressed the issue of what constitutes an accord and satisfaction in the case of Craft v. Standard Acc. Ins. Co., 220 Ala. 6, 123 So. 271 (1929), stating:
This Court has dealt with accord and satisfaction in its factual context in Biggers v. Ingersoll, 236 Ala. 646, 184 So. 478 (1938). In Biggers, as in the case before us, there was no proof of an accord and satisfaction. There the plaintiff, Eula Ingersoll, borrowed money, executed a promissory note for the loan, and secured the note by executing a mortgage on certain real property. After Ingersoll could no longer make her payments, the mortgagor told her that he wanted the property. She relinquished control over the property, and stated that it was her understanding that the mortgagor would take possession of the land, rent it, and apply the money received to the mortgage indebtedness. The mortgagor denied having such an understanding. He said that Ingersoll had not given up anything of value, since he was entitled to the property in any event. Ingersoll did not execute any deed or written agreement to this effect. Upon these facts the court found no proof that the possession by the mortgagor should be considered an accord and satisfaction of the indebtedness.
In the trial below, the branch manager of the Credit Union, Ruth Hester, submitted an affidavit stating that at no time was there any agreement between the Credit Union and the Rays that either of the Rays would be relieved from liability on either debt as a result of the deeds in lieu of foreclosure that were executed. James *1015 Marks, the attorney employed by the Credit Union, testified that he never discussed anything with the Rays concerning relief from debt in exchange for a deed in lieu of foreclosure. Marks testified that he did discuss the matter with Ruth Hester, and told her that it was his opinion that the Rays could legally waive their right of redemption in a deed in lieu of foreclosure, which would enable the Credit Union to sell the property. He also told her that, in his opinion, a deed in lieu of foreclosure would not relieve the Rays of their responsibilities on the promissory notes that they had executed. Furthermore, appellant James Ray testified several times that he executed the deeds, not to be relieved from the outstanding debts, but because he did not want his credit to be "messed up."
We are of the opinion that there was credible evidence presented to the court upon which it could have found that there was no intent by the parties that these deeds would relieve the Rays of their outstanding debts with the Credit Union. Since there was no meeting of the minds, there was no accord and satisfaction.
The Rays also argue that the Credit Union misapplied the proceeds from the sale of the land and the house thereon. This argument must fail, as did the first, based upon principles of contract law. The parties had a written agreement stating that the Credit Union would turn over to the Rays any excess proceeds they received from a sale of the property. Nowhere in this agreement, or any other agreement between the parties, is there any language which states that the Credit Union must apply the proceeds of a sale in a certain way. Rather, both mortgages contain the following language: "Mortgagee has full power and authority to make proper conveyance to the purchaser and to apply the proceeds of said sale...." (Emphasis added). Thus, the clause pertaining to the application of the proceeds by the Credit Union gives the Credit Union absolute discretion in the matter. The parties have agreed to this language in writing. The Rays may not now argue that the Credit Union's actions were illegal or improper.
For the above-stated reasons, the judgment of the trial court is affirmed.
AFFIRMED.
FAULKNER, ALMON and EMBRY, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree with the result reached in this case. Clearly there was no accord and satisfaction. I also agree that the Rays cannot complain about the application to the two notes of the proceeds from the sale of the property in question. However, in reaching that conclusion I do not rely on the language in the mortgages. When the Rays executed a deed in lieu of foreclosure, the mortgages were effectively extinguished, although the notes secured by the mortgages were not discharged. The proceeds from the sale of the mortgaged property were then applied against the indebtedness represented by the notes. The agreement between the parties did not specify how the proceeds were to be apportioned. If a debtor does not direct which of several debts in the hands of a creditor a payment is to be applied to, the creditor may apply the payment as it chooses. Sumlin v. Hagan Storm Fence Co., 409 So. 2d 818 (Ala.1982).
[1] This mortgage was supposed to cover 7.5 acres of land, but, due to a mistake in drafting, failed to include one tract of land containing 5.0 acres. | June 7, 1985 |
3aab02c4-3c59-4039-86d7-2ee4a656d926 | Allstate Ins. Co. v. Portis | 472 So. 2d 997 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 997 (1985)
ALLSTATE INSURANCE COMPANY
v.
Alexander PORTIS and Henry E. Coats, as Administrator of the Estate of John Coats, Deceased.
83-770.
Supreme Court of Alabama.
June 7, 1985.
Fred W. Killion III and Patricia K. Olney of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellant.
Ronnie E. Keahey, Grove Hill, for appellee Alexander Portis.
William T. Coplin, Jr., Demopolis, for appellee Henry E. Coats, etc.
BEATTY, Justice.
This is an appeal by Allstate Insurance Company (Allstate), plaintiff, from a jury verdict in favor of the defendants, Alexander Portis and Henry E. Coats, in Allstate's action for a declaratory judgment. We affirm.
In its action, Allstate sought an interpretation and application of an exclusion contained in a policy of homeowners insurance issued by it to Portis. The exclusion in question states:
Allstate's declaratory judgment action was an outgrowth of a wrongful death action brought by Henry E. Coats, as administrator of the estate of John Coats, against Alexander Portis. In that action, Coats alleged:
In Count Two of his complaint, Coats alleged that John Coats died as the proximate result of the aforesaid injuries. The wrongful death claim has been continued pending the outcome of this appeal.
*998 The case proceeded to trial, with Allstate and Portis moving for a directed verdict at the close of plaintiff's case and at the close of all the evidence. These motions were denied. The defendants did not introduce any evidence. The jury returned a verdict for the defendant and against the plaintiff, Allstate. This appeal followed.
Plaintiff has presented two questions for our consideration on this appeal:
(1) Whether the evidence adduced in the trial established that the insured, Portis, intentionally caused bodily injury to the deceased, John Coats, thereby requiring that the specific exclusion be given effect.
(2) Whether the trial court erred to reversal by refusing to admit into evidence the testimony of the victim's wife, Bertha Coats, since deceased.
Allstate maintains that the evidence at trial established that the insured, Portis, did intentionally shoot the victim, John Coats, and thus that it owed no insurance coverage to Portis under the terms of the above-quoted exclusion. Allstate refers us to a number of exhibits introduced below, consisting of statements made by Portis and testimony by witnesses who interviewed Portis.
This evidence established that Portis and the victim, John Coats, were neighbors who had a continuing dispute concerning the boundary line between their properties. According to Portis, John Coats had threatened Portis's life on occasions prior to the incident in question, and had removed plants, grass, and boundary markers placed upon the boundary by Portis. On the day of their last confrontation, Portis observed John Coats digging up plants Portis had planted the day before. Arming himself with a .32-caliber pistol he kept in his house, Portis walked out to a point near John Coats, who, according to Portis, began to curse and to threaten him. At this point, the parties disagree on the circumstances which led to the shooting of John Coats.
Allstate introduced statements which Portis gave shortly after the shooting. In one of these, made to the Thomasville chief of police, Portis stated:
To a district attorney's deputy and to a district attorney's investigator, Portis stated:
Portis made substantially the same statement to Doug Painter, a representative of Allstate. Each of these persons to whom Portis had given these statements testified as a witness and verified those versions of the incident as given to them by Portis.
*999 Portis himself also testified as a witness in the declaratory judgment action. He related the difficulties he had experienced with John Coats over the boundary line, explained his reason for arming himself, and described the altercation up to the point just prior to the shooting:
The decision of this Court in Alabama Farm Bureau Mutual Casualty Ins. Co. v. Dyer, 454 So. 2d 921 (Ala.1984), leads to a result contrary to that sought by Allstate here. In that case, the exclusion was for "bodily injury or property damage which is either expected or intended from the standpoint of the insured." In that case, two brothers, William and Wayne Dyer, had been drinking one evening and began arguing about a water ski William had bought from Wayne. William wanted his money back. The money was offered, but William said he would wait until the next morning when they were both sober. Wayne then *1000 pulled a revolver, pointed it at his brother, and fired, fatally wounding him.
In reciting the evidence of that case, this Court noted at 926:
Recognizing that the question of whether an injury which the insured inflicts upon another is "expected or intended from the standpoint of the insured" is a question of fact for the judge or jury, this Court proceeded in Dyer to analyze our previous decisions to determine whether that principle was to be measured by an objective or a subjective standard, and concluded:
Applying this principle, it is clear that the evidence of Portis and the evidence of the other witnesses conflicted. According to Portis's testimony, the victim had a "white pearl handled gun" in his belt, and as Portis backed away in the midst of thorns and stickers, falling backwards, the gun he was holding went off. Thus, he claimed, his gun went off accidentally. The other witnesses testified that Portis had stated to them that he had fired intentionally, albeit in self-defense. Clearly, this conflict in the evidence made an issue for the jury on Portis's intent to cause injury.
We need not reach the question concerning the refusal to admit the testimony of Bertha Coats. Allstate made no offer of proof; hence, we are not informed of the proposed testimony, nor can we ascertain its purpose. 2 Ala.Digest Appeal & Error, Key 205.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | June 7, 1985 |
558b873f-a417-460d-bca5-439570fcb4e5 | Ex Parte City of Leeds | 473 So. 2d 1060 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1060 (1985)
Ex parte CITY OF LEEDS.
(Re CONTINENTAL ELECTRIC COMPANY v. CITY OF LEEDS).
83-1446.
Supreme Court of Alabama.
June 21, 1985.
James E. Hill, Jr., Leeds, for petitioner.
*1061 Winston B. McCall, Jr., Birmingham, for respondent.
Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.
FAULKNER, Justice.
We granted certiorari in this case to determine whether the City of Leeds properly applied the business license tax to Continental Electric Company, a business located within the police jurisdiction of the city. We affirm the judgment of the Court of Civil Appeals, 473 So. 2d 1056.
Pursuant to Alabama Code 1975, § 11-51-91, a municipality may collect license taxes from businesses located outside its corporate limits but within its police jurisdiction, to defray the cost of municipal services provided to those businesses.
Continental Electric brought a suit against the City of Leeds, contending that the city improperly assessed the license tax against it.
The trial court found for the City of Leeds, concluding that Continental Electric had failed to show that the license fee was arbitrary and not based upon a reasonable effort to relate the amount of the license fee to the reasonable cost of services provided.
The Court of Civil Appeals reversed and held that the city had failed to reasonably relate the license tax imposed upon any particular business to the cost of services, in accordance with Alabama case law.
In City of Hueytown v. Burge, 342 So. 2d 339 (Ala.1977), this Court held that the license tax must be based on an "effort to relate the fee charged to the reasonable cost of supervision." The primary issue before us, therefore, is whether a municipality must calculate the cost of supervisory services to each particular business or class of businesses within the police jurisdiction, in its effort to relate the license fee charged to the reasonable cost of supervision.
The thrust of the argument made by the City of Leeds is that the "reasonableness" requirement in City of Hueytown should be interpreted to require the city to relate the licensing fee to the reasonable cost of supervisory services in the police jurisdiction as a whole area, rather than to require the city to relate the cost to each particular business. This will not wash.
Alabama case law has consistently held that a city may levy a license tax upon a business in its police jurisdiction so long as it is not for the purpose of raising general revenue. The amount of the tax must reflect the reasonable compensation for the expense of municipal supervision over the particular business. Hawkins v. City of Prichard, 249 Ala. 234, 30 So. 2d 659 (1947), Alabama Power Co. v. City of Carbon Hill, 234 Ala. 489, 175 So. 289 (1937); Van Hook v. City of Selma, 70 Ala. 361 (1881); Town of Newville v. Price, 372 So. 2d 1314 (Ala.Civ.App.1979).
In Hawkins, this Court stated that when fixing its license schedule, the city should estimate the proportionate amount chargeable to the police jurisdiction businesses, so that each particular business shall pay, as near as possible, an amount properly chargeable to its demand for supervision and police protection. This amount also necessarily includes a consideration for the value of standby facilities.
Since in the instant case the trial court found that "no calculation had been made by the Council or city officials of costs for city services to any particular business or classification of businesses or in the police jurisdiction," we hold that the Court of Civil Appeals' conclusion that the city thereby failed to properly relate the fee charged to the reasonable cost of supervision was in accordance with established Alabama case law.
AFFIRMED.
MADDOX, ALMON, EMBRY and BEATTY, JJ., concur.
TORBERT, C.J., dissents, with opinion.
JONES, SHORES and ADAMS, JJ., dissent, with opinion by JONES, J.
*1062 TORBERT, Chief Justice (dissenting).
I dissent. The majority opinion holds that "[t]he amount of the tax must reflect the reasonable compensation for the expense of municipal supervision over the particular business." The cases relied upon do, in fact, say this; however, I do not think that this Court ever intended to say that supervision costs must be allocated according to each individual business.
Hawkins v. City of Prichard, 249 Ala. 234 at 238, 30 So. 2d 659 at 663, sets forth the formula for determining business license fees:
In estimating the proper proportionate amount chargeable to the particular businesses located in the police jurisdiction, cities must refer to Code 1975, § 11-51-91. This section provides that, for business license purposes, a business located outside the corporate limits but within the police jurisdiction may be taxed up to one half the amount it would have been taxed had the business been located within the corporate limits.
It is my view that as long as the total fees assessed to all of the police jurisdiction businesses do not exceed the cost of supervising the police jurisdiction area, the tax is both reasonable and based upon the particular business within the meaning of § 11-51-91.
In Hawkins, the fee assessed against a filling station was improper because the station was automatically charged one half the amount charged to filling stations within the corporate limits, without regard to the cost of supervising the police jurisdiction. In fact, the mayor admitted that the license fees were used for general revenue purposes.
In the instant case, it is clear from the record that while the amount charged to Continental Electric was one half of that which would have been charged had the business been located within the corporate limits, the City of Leeds had the authority to assess the statutory ceiling amount (§ 11-51-91). This is so, because, even at the one half rate, the city incurs expenses in excess of the amount of these license fees in supervising the area of its police jurisdiction. Moreover, it is obvious that the business license fees were not used to raise general revenue; therefore, the fees charged were proper.
I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.
JONES, Justice (dissenting).
I respectfully dissent. It is the thrust of the majority's opinion that, because the trial court found "that `no calculation had been made by the Council or city officials of costs for city services to any particular business or classification of businesses or in the police jurisdiction,'" the City's imposition of the business license fee was not properly related to the reasonable costs of supervision. I believe this is a misreading of Hawkins. I do not understand Hawkins as mandating a separate calculation as to each business within the police jurisdiction so as to prorate total costs of furnishing city services to each business so served. Under the instant holding, each business would be taxed according to the particularized service furnished to that business by the City.
I read City of Hueytown, Hawkins, City of Selma, and Town of Newville quite differently. The thrust of each of these cases is to place the burden on the municipality to show some reasonable relationship between the costs of overall services furnished businesses outside the City, but *1063 within the police jurisdiction, and the license tax imposed upon those businesses. I find no legal authority for the proposition that a particular business may be singled out to determine whether the tax is reasonable. Indeed, such a particularized treatment of each separate business runs contrary to the statutorily mandated "one-half" formula for assessing businesses within the police jurisdiction. The record is replete with uncontradicted evidence that the City is expending more funds in supervising its police jurisdiction than it is receiving in revenues from police jurisdiction businesses. This finding by the trial court amply supports its legal conclusion upholding the imposition of the city tax.
For the reasons stated, I would reverse the judgment of the Court of Civil Appeals and remand the cause for an order affirming the judgment of the trial court.
SHORES and ADAMS, JJ., concur. | June 21, 1985 |
772230ad-d8f2-4632-b489-6e2fe9365e4c | DH Holmes Dept. Store v. Feil | 472 So. 2d 1001 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1001 (1985)
D.H. HOLMES DEPARTMENT STORE, et al.
v.
Ellen FEIL and Rebecca Vaughan.
83-1106.
Supreme Court of Alabama.
June 7, 1985.
W. Alexander Moseley of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellants.
*1002 Richard E. Browning of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellees.
TORBERT, Chief Justice.
Ellen Feil and Rebecca Vaughan sued D.H. Holmes Department Store, D.H. Holmes Beauty Salon, Holmes Glemby Now Salon, and Kree International for fraud and negligence in connection with treatments for removal of facial hair. The jury returned a general verdict in favor of the plaintiffs, assessing each plaintiff's damages at $75,000. The defendants moved for judgment notwithstanding the verdict or, in the alternative, for new trial, and the motions were denied. The defendants appealed to this Court from the final judgment in favor of the plaintiffs and from denial of their post-judgment motions.
Rebecca Vaughan and Ellen Feil are sisters. Each had unwanted facial hair and had to shave regularly to control her problem. In September 1977, they saw a Holmes Beauty Salon advertisement in the Mobile Press Register regarding hair removal and decided to seek treatment.
Clara Hubbs was an electrologist employed by Kree International. Kree subleased space from Glemby Now Salon, which leased space from D.H. Holmes in its Mobile department store. Mrs. Hubbs, a licensed cosmetologist, had worked in the beauty salon at Holmes since she was trained as an electrologist in 1973.
According to the plaintiffs, Mrs. Hubbs told them that she was not certain how long the treatment would take but that she was sure she could clear up the women's conditions within a year with followup visits. Mrs. Hubbs denied that she ever gave the plaintiffs an estimate of the time their treatment would require.
Two methods of electronic hair removal, electrolysis and tweezing, were available in 1977. Electrolysis is a method of removal which is permanent after the hair root bulb is destroyed. In performing electrolysis, a small electric filament is inserted into the hair follicle to the root bulb, electric current is sent through the filament, and the hair is then lifted out with a tweezer. This electric current gradually destroys the hair root bulb. As the root bulb is gradually killed, the hairs which are produced become weaker and finer. Tweezing is a non-permanent electronic method of hair removal which does not involve an electric filament. Electric current passes through the tweezer itself, and no needle is used. No direct contact is made with the root bulb.
Both plaintiffs signed up for regular electrolysis treatment. Mrs. Vaughan and Mrs. Feil began treatment on October 12, 1977. They discontinued their treatments in March 1979. Mrs. Hubbs testified that she believed that both plaintiffs had less facial hair at the end of their treatment and that the hair that remained was finer and weaker, but plaintiffs testified that they could not see any difference.
Mrs. Vaughan and Mrs. Feil subsequently went to Shelby Owens, an electrologist in Pensacola, Florida. Mrs. Vaughan's condition was cleared after a year of treatment by Ms. Owens. Mrs. Feil made 16 or 20 visits to Ms. Owens and then stopped her treatments without achieving a satisfactory clearing of her condition.
Plaintiffs filed suit. The complaint contained four causes of action, alleging, respectively, that defendants knowingly made false representations to plaintiffs that services were available at their facility for the effective and permanent removal of unwanted hair, whereas the treatments provided to the plaintiffs between 1977 and 1979 for unwanted facial hair were not effective and not permanent; that such representations were made, not knowingly, but recklessly; that such representations were made by mistake but with an intention that they be relied upon; and that defendants negligently carried out an attempt to remove unwanted facial hair from plaintiffs, causing them damages.
At the conclusion of the presentation of the plaintiffs' evidence and again at the conclusion of all the evidence, defendants moved for a directed verdict in their favor on the plaintiffs' fraud claims. The motion *1003 was denied on both occasions. After the jury found for the plaintiffs, defendants timely moved for judgment notwithstanding the verdict or alternatively for a new trial. These motions were denied. Defendants appealed to this Court from the final judgments in favor of the plaintiffs and from the denial of their post-judgment motions.
The defendants raise numerous issues on appeal. The major issues are summarized as follows:
1. Whether the trial court erred in denying defendants' motions for directed verdict or judgment notwithstanding the verdict on the grounds that the plaintiffs' fraud claims were barred by the statute of limitations.
2. Whether the trial court erred in denying defendants' motions for directed verdict or judgment notwithstanding the verdict on the grounds that the plaintiffs failed to establish a prima facie case of fraud based on a promise.
3. Whether defendants are entitled to a new trial on the negligence cause of action on the grounds that the general verdict was attributable to the inadequate or barred fraud claims.
4. Whether defendants are entitled to a new trial because (a) the trial court allowed the plaintiffs to introduce evidence regarding diseases which can allegedly be transmitted by electrolysis, (b) the trial court instructed the jury that innocent or reckless misrepresentations would support the plaintiffs' claims of fraud based upon a promise; and (c) the jury returned a verdict for 25 to 35 times the plaintiffs' proven damages.
Since we reverse on the merits of the case, it is unnecessary for us to discuss whether the statute of limitations on the fraud counts had run.
Defendants claim that plaintiffs' fraud claims are based on the alleged assurances by Mrs. Hubbs that their treatment would be complete within one year of its commencement. The gravamen of the complaint, however, was defendants' alleged representations of fact that they could effect the permanent removal of hair. The representations were allegedly made by Mrs. Hubbs personally as well as by the newspaper advertisement plaintiffs saw in the Mobile Press Register.[1] There is nothing in the record to indicate that defendants are generally incapable of effecting a permanent removal of hair; there is evidence only that defendants were unable to effect a permanent removal of plaintiffs' facial hair within a time satisfactory to plaintiffs.
The alleged representation that defendants would effect a permanent removal of plaintiffs' facial hair related to a future event. Where an alleged misrepresentation relates to a future event, plaintiff must not only prove the usual elements of fraudi.e., falsity, reliance, and damagesbut plaintiff must also prove that at the time the statement or promise about the future was made, there was actual fraudulent intent not to perform the act promised and intent to deceive plaintiff. Kennedy Elec. Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983); Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976). The mere failure to perform, alone, is not evidence of intent not to perform at the time the promise was made. If it were, a mere breach of contract would be tantamount to fraud. Old Southern Life Insurance Co., supra.
*1004 Plaintiffs argue that there was enough evidence to submit the issue of present intent to the jury and to support the jury's finding that there was no intent to fulfill the promises when they were made. This evidence includes (1) the testimony of Ms. Owens that the plaintiffs' conditions 16 months later were inconsistent with effective electrolysis treatment; (2) the newspaper advertisement and Mrs. Hubbs's alleged representation that she could permanently remove hair coupled with the lack of success within one year as Mrs. Hubbs allegedly estimated; (3) the testimony of Ms. Owens that implied that perhaps the tweezer method, a nonpermanent method of hair removal, was used rather than electrolysis. We hold that this evidence is not sufficient to establish present intent to deceive.
The testimony of Ms. Owens as to the plaintiffs' conditions when she first saw them in March 1979 had no bearing on defendants' intent 16 months earlier. Any assurances by Mrs. Hubbs that she could clear up plaintiffs' conditions within a year were expressions of opinion and not statements of material fact and therefore not actionable fraud. Cf. Accident Indemnity Ins. Co. v. Feely, 279 Ala. 74, 181 So. 2d 889 (1966), and Harrell v. Dodson, 398 So. 2d 272 (Ala.1981). Finally, Ms. Owens's testimony that Mrs. Hubbs perhaps did not use the permanent method of hair removal known as electrolysis, but might have instead used the non-permanent tweezer method, was not supported by any other evidence. In fact, one of the plaintiffs described her treatment in a manner entirely consistent with the filament electrolysis method. In addition, Ms. Owens herself testified that she could not definitely tell whether Mrs. Hubbs had used the tweezer or electrolysis method on plaintiffs.
Moreover, the plaintiffs failed to establish a course of conduct on the part of the defendants showing a present intent to defraud, and they also failed to present any evidence that the treatment did not generally work.
Fraud must be clearly and satisfactorily proved by the party seeking relief upon that basis. Rankin v. First Nat. Bank of Alabama, 437 So. 2d 503 (Ala. 1983). This burden was not met. While intent is generally a question for the trier of fact, its determination is not within the jury's untrammeled discretion. Any finding on the issue of intent must be based on reasonable inferences from the evidence. Walker v. Woodall, 288 Ala. 510, 262 So. 2d 756 (1972); Universal Brokers, Inc. v. Higdon, 56 Ala.App. 184, 320 So. 2d 690 (1975). A careful study of the record reveals that the reasonable inferences from the record do not support a finding of intent. In the absence of a scintilla of evidence of present intent to deceive, defendants were entitled to a directed verdict or a judgment notwithstanding the verdict, on the grounds that plaintiffs failed to prove a prima facie case of fraud. Burroughs Corp. v. Hall Affiliates, Inc., 423 So. 2d 1348 (Ala.1982).
While the trial court was not in error in allowing the jury to consider the evidence as it related to the claim of negligence, it erred in denying defendants' motion for directed verdict on the fraud count. Since a general verdict was returned by the jury, the judgment must be reversed and the cause remanded for a new trial. We recently reiterated the rule with regard to the general verdict:
National Security Fire & Cas. Co. v. Vintson, 454 So. 2d 942, 946 (Ala.1984) *1005 (quoting from John Deere Industrial Equipment Co. v. Keller, 431 So. 2d 1155, 1157 (Ala.1983)).
Since this judgment must be reversed and the cause remanded for a new trial as to the negligence claim, the jury's verdict not being clearly referable to that claim, we need not reach the fourth issue raised on appeal. However, we do not mean to imply that we approve of the introduction of the irrelevant and highly prejudicial evidence regarding diseases, such as AIDS and hepatitis, which can allegedly be transmitted by electrolysis. The record shows no complaint of anything other than the failure of the treatments to remove excess facial hair.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.
[1] The text of the advertisement is as follows:
"HOLMES Introducing ... THE PERMATRON SYSTEM OF HAIR REMOVAL A new system with two methods of hair removal. One method uses an electronic tweezer. As nothing touches the skin, it is totally comfortable. The other method is the time-proven PERMANENT method of hair removal. Now you have a choice. Take the first step to enjoy hair free loveliness. Phone for a complimentary consultation soon! Holmes Bel Air Beauty SalonFirst FloorCall 471-1551 or 471-5666." | June 7, 1985 |
8812935d-0215-419c-9ee5-14f36a1f6b17 | Bates v. Peoples Sav. Life Ins. Co. | 475 So. 2d 484 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 484 (1985)
Bertha BATES and Joe Bates
v.
PEOPLES SAVINGS LIFE INSURANCE COMPANY OF TUSCALOOSA, INC.
84-285.
Supreme Court of Alabama.
June 21, 1985.
Rehearing Denied August 23, 1985.
Kitty Whitehurst, Tuscaloosa, for appellants.
Alyce Manley Spruell of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
SHORES, Justice.
This appeal is from a summary judgment granted in favor of Peoples Savings Life Insurance Company of Tuscaloosa (Peoples Insurance) in a negligence action filed by Bertha Bates and her husband. We reverse and remand.
Bertha Bates sustained injuries when she fell on a stairway in a building owned by Peoples Insurance. The building contains several small businesses, including the Oak City Beauty Shop, located on the street level, and Druid City Cab Service, located on the second floor. In deposition, Mrs. *485 Bates testified that she arrived at the Oak City Beauty Shop shortly before 7:00 a.m. on Saturday, March 19, 1983, so that she could be the first customer of Julia Prewitt, the owner/operator of Oak City Beauty Shop. According to Mrs. Bates, Julia Prewitt served customers on a first-come, first-served basis on Saturdays. Mrs. Bates testified that she arrived at the beauty shop before Mrs. Prewitt. She waited for a few minutes and then walked upstairs to the Druid City Cab Service to telephone Mrs. Prewitt. After talking to Mrs. Prewitt, Mrs. Bates began to descend the stairs leading from Druid City Cab Service and fell, sustaining the injuries for which she seeks to recover.
A landlord owes the same degree of care to individuals injured in common areas over which the landlord exercises control as ordinary landowners. Coggin v. Starke Bros. Realty Co., 391 So. 2d 111 (Ala.1980). In the case at hand, it is clear that Mrs. Bates was a business invitee of Oak City Beauty Shop. Peoples Insurance argues, however, that Mrs. Bates had no legitimate business purpose in going to Druid City Cab Service to use the telephone and, therefore, was a mere licensee in the part of the building where she sustained her injuries. We disagree. Mrs. Bates walked upstairs to Druid City Cab Service, a portion of the building open to the public, in order to facilitate a business transaction with Oak City Beauty Shop, one of Peoples Insurance's tenants. Although Druid City Cab Service arguably was not benefited by Mrs. Bates's use of its telephone,[1] it is undisputed that she was on the premises at the express or implied invitation of the owner or occupier for a material or commercial benefit to an occupier. Osborn v. Brown, 361 So. 2d 82 (Ala.1978). Under these circumstances, we hold that Mrs. Bates was a business invitee of Peoples Insurance. Thus, Peoples Insurance owed her the duty of exercising ordinary or reasonable care to keep the premises in a reasonably safe condition. Winn-Dixie v. Godwin, 349 So. 2d 37 (Ala.1977); May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So. 2d 590 (1967).
The trial court entered summary judgment on the authority of Tice v. Tice, 361 So. 2d 1051 (Ala.1978), and Sledge v. Carmichael, 366 So. 2d 1117 (Ala.1979). Neither case supports summary judgment in this action.
In Tice v. Tice, supra, the plaintiff, Mrs. Tice, served as a babysitter for her son's children while her son and daughter-in-law worked. She was walking on a sidewalk leading to her son's house when she slipped and fell. She was unable to state what caused her fall, but surmised that the fall was caused by one of several toys strewn about the yard. We affirmed a summary judgment for the defendants and held that Mrs. Tice had failed to produce any evidence from which a jury could conclude that the defendants had breached a duty owed to her. Similarly, in Sledge v. Carmichael, supra, we held that the trial court properly directed a verdict in favor of the defendant, where the plaintiff admitted that her fall occurred because she completely missed a set of steps leading from a porch.
In Folmar v. Montgomery Fair Company, 293 Ala. 686, 309 So. 2d 818 (1975), on the other hand, we reversed a summary judgment which had been entered in favor of the defendant, where the plaintiff was able to show that the only instrumentality which could have caused her fall in the defendant department store was a table leg which protruded into the aisle in which she was walking. The plaintiff, therefore, produced evidence concerning the cause of her fall from which the jury could conclude that the defendant breached a duty owed to her.
Here, Mrs. Bates is specific as to the cause of her fall. She testified upon deposition that she fell because the heel of her boot became caught in carpet covering the stairway, which she described as worn, loose, shaggy, bumpy, and in need of repairs. We hold that Mrs. Bates has produced *486 evidence from which a jury could reasonably conclude that Peoples Insurance breached a duty owed to her.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER and JONES, JJ., concur.
[1] After her fall, Mrs. Bates retained the services of Druid City Cab Service to take her home. | June 21, 1985 |
62e57ff2-b60a-46bf-85ec-2dd224de3c3a | Cochrane Roofing & Metal Co. v. Callahan | 472 So. 2d 1005 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1005 (1985)
COCHRANE ROOFING & METAL COMPANY, INC.
v.
H.S. (Sonny) CALLAHAN; Steven M. Priola, d/b/a Mark Construction Co., Inc.
83-1254.
Supreme Court of Alabama.
June 7, 1985.
*1006 W. Eugene Rutledge and Kay S. Kelly of Rutledge, Fay & Kelly, Birmingham, for appellants.
Jerry O. Lorant and Charles J. Lorant of Jerry O. Lorant & Associates, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a judgment entered in a declaratory judgment action.
The single issue presented is whether a contractual undertaking to indemnify another requires that notice of a claim and notice of suit be given to the indemnifying party within a reasonable time where the contract is silent in this regard, and, if so, whether it was given in this case.
The material facts as found by the trial court follow:
Cochrane Roofing and Metal Co., Inc. (subcontractor), sought a declaratory judgment against Steven M. Priola, d/b/a Mark Construction Co., Inc. (contractor), H.S. Callahan (owner), and other defendants.
The contractor built a warehouse complex for the owner in 1970-71. The subcontractor by written contract agreed to furnish the materials and labor to install a twenty-year bond type built up roof. The subcontract contained the following indemnity provision:
The subcontractor completed the roofing work under the contract in or about July 1971. Thereafter, between 1971 and 1973, under its two-year warranty, the subcontractor responded to complaints by the owner concerning the roof three or four times, at the request of the contractor. The contractor no longer called upon the subcontractor thereafter.
On July 21, 1980, the contractor telephoned W.M. Cochrane, president of Cochrane Roofing. Mr. Cochrane made a memorandum of the case, which was admitted in evidence. The subject matter of the conversation was the roof which Cochrane had completed nine years before:
It is undisputed that this conversation took place before the contractor was served with a complaint in a lawsuit filed against *1007 it by Callahan and others, the owners of the warehouse complex. That lawsuit was filed on July 9, 1980, against the contractor, USF & G (as surety on its construction bond), and two architects, claiming damages for breach of contract. The suit alleged that the roof of the building was improperly constructed. The contractor was served with the complaint on August 21, 1980.
Over two years later, on November 4, 1982, the attorney for the contractor, by letter, demanded that the subcontractor indemnify the contractor against any loss and assume the defense of the litigation, although the contractor had retained two separate law firms to represent it and had regularly paid bills submitted by those firms.
The subcontractor then filed this action for declaratory judgment, contending that it had no obligation to indemnify the contractor because the contractor had not given it notice of the suit in a timely manner, and contending that laches prevented the contractor from prevailing under the indemnity agreement. Alternatively, the subcontractor contended that the contractor had waived its rights under the indemnity provision of the contract by not notifying the subcontractor and by assuming the defense of the litigation and not forwarding a copy of the complaint to the subcontractor until more than two years had passed and the roof, the subject of the suit, had been re-covered by another contractor, preventing the subcontractor from investigating the problem.
The trial court held that even though the contractor never provided the subcontractor with a copy of the complaint until the letter of November 4, 1982, the indemnity provision required the subcontractor to assume defense of the litigation and to indemnify and save harmless the contractor. Because this holding is contrary to the law applicable to these facts, we reverse and remand.
Although the contract here does not contain a specific requirement that the contractor give notice to the subcontractor of a suit which the subcontractor agrees to defend and as to which the subcontractor agrees to save harmless the contractor, it goes without saying that notice is a prerequisite to performance by the subcontractor. The law implies an obligation on each party to a contract to allow the opposite party all reasonable opportunity to perform his undertaking. 3 S. Williston, A Treatise on the Law of Contracts, § 887B (rev. ed. 1936). Under the facts in this case, the law would imply an obligation to notify the indemnitor within a reasonable time of a claim against the indemnitee, and certainly it would require the prompt forwarding of the complaint if the indemnitor is to be required to furnish a defense of it.
A case from the Supreme Court of Connecticut is persuasive on very similar facts, and its holding is consistent with Alabama law. We, therefore, adopt the reasoning of that Court as expressed in Town of Fairfield v. D'Addario, 149 Conn. 358, 179 A.2d 826 (1962):
149 Conn. at 361-63, 179 A.2d at 828-29.
We have held that indemnity provisions in construction contracts are valid in Alabama, Industrial Tile, Inc. v. Stewart, 388 So. 2d 171 (Ala.1980), and we do not retreat from that holding. However, we also hold that to be binding on the party agreeing to indemnify and save harmless the other party, he must receive notice of a claim which he must defend, for only in this way can he investigate the claim and prepare his defense. He must also be promptly forwarded a copy of the complaint once it is served upon the indemnitee. Here the complaint was not forwarded to the subcontractor for over two years. The contractor retained counsel of its choice, who prepared a defense without consulting with the indemnitor/subcontractor. Now, at this late date, it calls upon the indemnitor to pay the lawyer of the contractor's choice and to save harmless the contractor. Having failed to perform its part of the bargain, the contractor cannot now compel performance by the subcontractor.
The judgment of the trial court is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | June 7, 1985 |
7cd5d581-addb-46c3-8a0e-464e3053e640 | Ex Parte Jefferson | 473 So. 2d 1110 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1110 (1985)
Ex parte: Albert Lee JEFFERSON.
(Re: Albert Lee Jefferson v. State).
84-126.
Supreme Court of Alabama.
May 10, 1985.
Rehearing Denied July 3, 1985.
*1111 E. Drexel Meadors and J. Donny Bolton, West Point, Ga., for petitioner.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson and William D. Little, Asst. Attys. Gen., for respondent.
SHORES, Justice.
Albert Lee Jefferson, the defendant herein, was indicted and convicted for the murder of Marion Morris Stone while robbing him, in violation of § 13A-5-31(a)(2), Ala. Code 1975 (repealed 1981).[1] Following a sentencing hearing, wherein the aggravating and mitigating circumstances of the case were considered and weighed, the jury recommended the death sentence by a vote of eleven to one. The trial court held a second sentencing hearing and, after independently weighing the aggravating and mitigating circumstances, sentenced the defendant to death. The Court of Criminal Appeals affirmed the conviction based on the guilt-finding phase of the trial, but found error in the sentence-determining phase and remanded for a new sentencing hearing.[2]
On remand, the defendant was sentenced to death according to the guidelines set forth in Beck v. State, 396 So. 2d 645 (Ala. 1981).[3] The original sentencing order, dated July 26, 1983, was vacated and replaced thereafter by an order dated May 24, 1984.[4] The Court of Criminal Appeals affirmed the death sentence in its "On Return to Remand" opinion dated August 14, 1984, and later overruled the defendant's application for rehearing. The defendant then filed a petition for writ of certiorari, which we granted. We affirm.
The facts are set out in the opinion of the Court of Criminal Appeals in this case. See 473 So. 2d 1100.
The defendant contends that the trial court erred to reversal during the sentence-determining *1112 phase of his trial and urges this Court to remand for a new sentencing hearing. He first argues that it was improper for the jury to be instructed upon, and the trial court to find, as an aggravating circumstance, the fact that he committed the indicted capital offense while engaged in the commission of a burglary. We disagree.
Section 13A-5-35(4), Ala. Code 1975,[5] in pertinent part, reads as follows:
In Beck v. State, supra, at 663, the Court stated:
In the present case, the evidence clearly shows that the indicted capital offense occurred during the commission of a burglary. The trial court, thus, committed no error in instructing the jury upon, and subsequently finding, this aggravating circumstance.
The defendant next argues that the intentional killing of the victim in this case was not especially heinous, atrocious, or cruel, an aggravating circumstance on which the jury was instructed and which was found by the trial court under § 13A-5-35(8), Ala.Code 1975. He insists that the killing was not conscienceless or pitiless and unnecessarily torturous to the victim, within the meaning of Ex parte Kyzer, 399 So. 2d 330 (Ala.1981). Again, we disagree.
The trial court, in its finding and summary of facts, stated:
The trial court, in its finding of aggravating circumstances, continued:
The evidence overwhelmingly supports the findings of the trial court that the killing was conscienceless or pitiless and unnecessarily torturous to the victim. Of special significance is the fact that the victim did not lose consciousness until several minutes after the attack. Dr. Gilchrist, a forensic pathologist with the Montgomery Laboratory of the Alabama Department of Forensic Science, testified as follows:
This case is comparable to Dunkins v. State, 437 So. 2d 1349 (Ala.Cr.App.), affirmed, 437 So. 2d 1356 (Ala.1983), cert. denied, ___ U.S. ___, 104 S. Ct. 1329, 79 L. Ed. 2d 724 (1984), wherein this aggravating circumstance was found to exist. In that case, as in the present case, the victim was extensively and viciously cut with a knife and, as here, was alive during the attack. Again, the trial court committed no error in instructing the jury upon and finding this aggravating circumstance.
The defendant finally argues that the trial court improperly denied his motion for a mistrial after the prosecutor, for the purpose of impeaching his credibility, asked whether he had previously been charged with an offense for which he had not, in fact, been convicted. The record reflects that on cross-examination of the defendant before the jury, the following transpired:
A trial court's ruling on a motion for a mistrial is reviewable on appeal, Stennett v. State, 340 So. 2d 65 (Ala.1976); however, such a motion is addressed to the sound discretion of the trial court, and its ruling will not be reversed in the absence of a clear showing of abuse of discretion. Shadle v. State, 280 Ala. 379, 194 So. 2d 538 *1115 (1967). A defendant, when testifying in his own behalf, may be questioned on cross-examination as to whether he has been convicted of a crime involving moral turpitude for the purpose of attacking his credibility as a witness. Section 12-21-162, Ala.Code 1975. However, whether a defendant has been guilty of wrongful conduct or the commission of an offense for which there has been no conviction is not a proper inquiry. Parker v. State, 280 Ala. 685, 198 So. 2d 261 (1967); Anderson v. State, 354 So. 2d 1156 (Ala.Cr.App.), cert. denied, 354 So. 2d 1161 (Ala.1977).
In the instant case, the question asked of the defendant was improper, but not to the extent that, notwithstanding the trial court's strong admonition to the jury, a mistrial was mandated. Furthermore, the possibility that the jury could have considered the robbery charge as an aggravating circumstance was eliminated, not only by the trial court's admonition immediately following the question, but also by the oral instructions given the jury at the close of the sentencing hearing. The trial court instructed the jury that under the evidence of the case it could only consider two possible aggravating circumstances: that the capital offense occurred during the commission of a burglary, and that the capital offense was especially heinous, atrocious, or cruel. The robbery charge did not relate to either of those two aggravating circumstances. As to mitigating circumstances, the trial court instructed the jury as follows:
We find no abuse of discretion on the part of the trial court in denying the motion for a mistrial, and we further find that its prompt admonition immediately following the question and its subsequent instructions overcame any prejudicial effect which the question might have otherwise had on the jury.[6] See Favor v. State, 389 So. 2d 556 (Ala.Cr.App.1980); and Ellis v. State, 244 Ala. 79, 11 So. 2d 861 (1943).
Moreover, the trial court, which is the final sentencing authority in capital cases, did not consider the robbery charge in its sentence findings. The trial court found to exist only the two aggravating circumstances on which it had charged the jury.[7] The robbery charge does not relate *1116 to either of those. The trial court refused to find, as a mitigating circumstance, that the defendant had no significant history of prior criminal activity. However, this was based upon a finding of four previous felony convictions and did not take into consideration the robbery charge.
In Coulter v. State, 438 So. 2d 336 (Ala. Cr.App.1982), affirmed, 438 So. 2d 352 (Ala. 1983), evidence of prior criminal activity which had not resulted in a conviction was injected into the sentencing hearing. The trial court, in that case, instructed the jury that that evidence was not to be considered in its determination of aggravating circumstances, and the trial court did not consider the evidence in sentencing. This Court affirmed the judgment of the Court of Criminal Appeals, which held that, under those circumstances, a new sentencing hearing was not required. 438 So. 2d at 348-49.
The defendant's remaining contentions were fully and correctly decided by the Court of Criminal Appeals. We, too, have reviewed the propriety of the death sentence in this case, pursuant to the requirements of § 13A-5-53(a), Ala.Code 1975, and Beck v. State, supra, and find that there were no errors adversely affecting the rights of the defendant. Therefore, the judgment of the Court of Criminal Appeals is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.
FAULKNER, J., not sitting.
[1] The 1975 capital punishment statute, as contained in §§ 13-11-1 through 13-11-9, was carried over intact to the new criminal code as §§ 13A-5-30 through 13A-5-38. These sections of the new criminal code were repealed, effective July 1, 1981, by the 1981 capital offense statute, but only as to conduct occurring on or after July 1, 1981. Therefore, conduct occurring before July 1, 1981, as in the present case, is governed by the pre-existing law, i.e., §§ 13A-5-30 through 13A-5-38. See Spears v. State, 428 So. 2d 174 (Ala.Cr.App.1982).
[2] The trial court, pursuant to § 13A-5-46(f), Ala.Code 1975, instructed the jury that a sentence of death could be recommended upon a vote of ten jurors. The Court of Criminal Appeals correctly held that this was error because §§ 13A-5-39 through 13A-5-59, Ala.Code 1975, applied only to conduct occurring after 12:01 a.m. July 1, 1981. The act for which the defendant was tried occurred on April 17, 1981, before the effective date of those code sections. The section instructed upon by the trial court was, therefore, inapplicable and was erroneously used as the basis for the instruction. In addition, Beck v. State, 396 So. 2d 645 (Ala.1981), required that a recommendation of a sentence of death be unanimous. Accordingly, the trial court's instruction to the jury that the recommendation of a sentence of death could rest upon a vote of only ten jurors was clearly prejudicial to the defendant. The trial court also failed to instruct the jury "to avoid any influence of passion, prejudice or other arbitrary factor while deliberating and fixing the sentence," as required by Beck v. State, supra, at 663.
[3] The newly impanelled jury, which was properly instructed to avoid the influence of passion, prejudice, or any other arbitrary factor, unanimously recommended that the defendant be sentenced to death. The trial court again independently weighed the aggravating and mitigating circumstances and sentenced the defendant to death.
[4] See Appendix A to the opinion of the Court of Criminal Appeals, dated May 24, 1984.
[5] Formerly § 13-11-6, Ala.Code 1975.
[6] The fact that the defendant did not answer the question renders even more improbable any possible prejudicial effect. May v. State, 42 Ala.App. 401, 166 So. 2d 860 (1963), cert. denied, 166 So. 2d 865 (Ala.1963).
[7] In Alabama, an aggravating circumstance constitutes an element of the capital offense, must be averred in the indictment (§ 13A-5-31, Ala. Code 1975), and must be proven beyond a reasonable doubt. The jury's verdict that the defendant was guilty of the capital offense would mean that the State had already established the aggravating circumstance of murder during a robbery. Therefore, three aggravating circumstances were actually found to exist in this case. Beck v. State, supra. | May 10, 1985 |
c8af62c9-cae0-4fd1-9102-9ec94998cf57 | Boros v. Palmer | 472 So. 2d 1020 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1020 (1985)
George BOROS and Elsie Boros
v.
Gwen PALMER, and Johnston-Rast & Hays Company, A Corporation.
83-1432.
Supreme Court of Alabama.
June 7, 1985.
*1021 Jeff Bennitt, Birmingham, for appellants.
Stephen A. Rowe of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
ADAMS, Justice.
Plaintiffs, George and Elsie Boros, appeal from the Jefferson County Circuit Court's grant of summary judgment against them and in favor of defendants, Gwen Palmer and Johnston-Rast & Hays. We affirm.
On December 4, 1979, a real estate agent employed by Johnston-Rast & Hays Company showed George Boros a house located at 3432 Meadowoods Drive in Birmingham. After Boros had inspected it with Palmer, he executed a contract for its purchase. The house was built by Shewmake Development Company, and Jack Shewmake lived in it from the time it was built until it was sold, which was approximately one and one-half years. While Boros and Palmer were looking at the house, and afterward during negotiations, Palmer made several representations about its quality, among them: "it was extremely well-built," "in excellent condition," "energy efficient," *1022 "was thoroughly waterproofed," and "had extra insulation."
Boros took possession of the house on February 1, 1980. Over the next day or so, he inspected it, in his words, "with a fine tooth comb." During this inspection, he kept detailed notes concerning the defects he found. This note-keeping practice was not peculiar for Boros, as he admitted in his deposition that he was in the habit of keeping detailed notes of the important events in his life and the dates upon which they occurred. As a result of this inspection, Boros noted approximately forty defects in the premises, including the following listing quoted from his notes:
All of these defects, as well as numerous others, were discovered by Boros on either February 1 or 2, 1980.
On February 7, 1980, Boros talked with James Stevens, the attorney who handled the closing, about the possibility that he had been defrauded, as is evidenced by the following excerpt from Boros's deposition:
Stevens declined representing Boros in a fraud action, due to his involvement as closing attorney. On February 12, 1980, Boros sought the advice of Attorney Matt Scalici concerning the possibility of fraud litigation. Boros met with another attorney, John Roach, on February 13, 1980, and later that month with Attorneys Bill Baxley and Charles Dauphin, seeking information about a possible fraud action.
During the time in which he was meeting with these attorneys, Boros was also attempting to have Shewmake repair the defects in the house. Boros's deposition reflects that this took place on or before February 12, 1980:
This action was commenced by the filing of a complaint on February 13, 1981. After depositions were taken, defendants filed motions for summary judgment, which were denied by the court. More depositions were then taken, and after the case was continued numerous times, it was tried and a mistrial resulted. Defendants then filed motions for summary judgment, which were granted. George and Elsie Boros subsequently filed this appeal.
Although there are other grounds upon which the trial judge probably could have granted summary judgment in this case, they were not argued in brief to us, and we will not address them. A trial judge's judgment can be upheld, if correct, even though he has assigned the wrong reasons. However, as postured, the sole issue for our review is whether the trial court was correct in granting defendants' motions for summary judgment based on the running of the statute of limitations.
George and Elsie Boros filed suit alleging fraud on the part of all defendants. The false statements which serve as the basis of this action were those representations made by Gwen Palmer concerning the condition of the house. These representations, however, were made to George Boros on December 4, 1979, and the suit was not filed until February 13, 1981. Therefore, the suit is barred by the one-year statute of limitations for fraud actions. § 6-2-39, Code 1975. However, plaintiffs' suit still might warrant being submitted to the jury if they could prove that the fraud claims fall under the saving provision of Code 1975, § 6-2-3, which states:
There are two reasons why plaintiffs' suit does not fall under the above-quoted saving provision. A discussion of both of these reasons is found in Johnson v. Shenandoah Life Insurance Company, 291 Ala. 389, 281 So. 2d 636 (1973), wherein this Court stated:
291 Ala. 389 at 396, 281 So. 2d at 642, quoting Williams v. Bedenbaugh, 215 Ala. 200, 204, 110 So. 286, 289 (1926).
The first reason plaintiffs' action does not come under the saving provision is that they failed to aver with precision, as *1024 required, what prevented a discovery of the facts and circumstances constituting the fraud before the bar of the statute was complete. Moreover, there is credible evidence that George Boros was well aware of such facts and circumstances before the time period expired, as the statements were made in December 1979, and he had discovered dozens of defects in the house the first week of February 1980.
Second, according to Johnson, supra, the facts constituting fraud are to be considered as discovered when they should have been discovered by a reasonably prudent person. We are of the opinion that George Boros had sufficient facts before him concerning the condition of the house, before February 13, 1980, which would have led a reasonably prudent person to suspect something and, therefore, take affirmative action.
Since plaintiffs have not shown that their suit comes under the saving provision, it is barred by the one-year statute of limitations. The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | June 7, 1985 |
10f7c71c-9f3b-4b94-8e1d-4c06f23286bc | Oxford Lumber Co. v. Lumbermens Mut. Ins. Co. | 472 So. 2d 973 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 973 (1985)
OXFORD LUMBER COMPANY
v.
LUMBERMENS MUTUAL INSURANCE COMPANY.
83-787.
Supreme Court of Alabama.
May 31, 1985.
*974 Thomas J. Knight, Anniston, for appellant.
Patrick S. Burnham, Burnham, Klinefelter, Halsey, Jones & Cater, Anniston, for appellee.
MADDOX, Justice.
This action stems from a declaratory judgment proceeding wherein Lumbermens Mutual Insurance Company, sought a determination of whether it had an obligation to defend in a lawsuit filed against Oxford Lumber Company and Wadley Cash and Carry.
Lumbermens Mutual issued a liability insurance policy listing both Oxford Lumber Company and Wadley Cash and Carry as the named insureds. The policy provided liability coverage in three areas: (1) personal injury and property damage; (2) limited medical payments; and (3) broad form comprehensive general liability.
The facts of the lawsuit underlying the declaratory judgment proceeding are as follows:
On May 27, 1982, Wadley Cash and Carry, owned by Oxford Lumber Company, employed one James D. Stephens, who was allegedly informed by the manager of Wadley Cash and Carry that he was covered under the company's group medical insurance policy. Relying on this statement, Stephens cancelled his previously existing medical insurance. Approximately ten days after Stephens entered employment with Cash and Carry, his wife was injured in an automobile accident. Mr. and Mrs. Stephens then learned that there was a thirty-day waiting period before the Oxford Lumber Company's group medical insurance policy with American Hardware Mutual took effect. Mr. and Mrs. Stephens sued American Hardware Mutual; Oxford Lumber Company; Wadley Cash and Carry; Pierce Stewart, the manager of Wadley Cash and Carry; and Charles and Mildred Newman, the owners of Oxford Lumber Company, claiming that the defendants were guilty of negligence, fraud, and misrepresentation.
Upon learning that it was being sued by the Stephenses, Oxford Lumber Company requested Lumbermens Mutual to defend it according to its general liability insurance policy. Lumbermens Mutual filed the declaratory judgment action made the subject of this appeal, and sought a determination *975 of whether it was required to defend Oxford Lumber. Oxford Lumber counterclaimed for breach of contract, bad faith refusal to pay, and negligent misrepresentation. The trial court severed the declaratory judgment action, to be tried in a nonjury proceeding, leaving the counterclaim to be tried at a later date. The trial court, sitting as the trier of fact, heard the declaratory judgment action in an ore tenus proceeding and found that Lumbermens Mutual was not obligated to defend Oxford Lumber Company. Oxford Lumber Company appeals here, raising two issues for our review:
(1) Whether it was entitled to a jury trial; and, (2) Whether the insurer was under a duty to defend.
Oxford Lumber Company first contends that it was entitled to a jury trial to determine all of the issues raised in Lumbermens Mutual's complaint for declaratory judgment. We disagree.
The general rule is stated in Ex parte Rush, 419 So. 2d 1388 (Ala.1982), in which the dispositive issue was whether the trial judge erred in granting plaintiff's motion to strike defendant's request for a jury trial. In Rush, the Court opined as follows, at 1389-90:
This Court then proceeded to hold as follows:
In support of this view, Oxford Lumber also cites Porter v. Alabama Farm Bureau Mutual Casualty Insurance Co., 279 Ala. 499, 187 So. 2d 254 (1966), and Major v. Standard Accident Ins. Co., 272 Ala. 22, 128 So. 2d 105 (1961).
In Porter, the insurer claimed that the insurance policy was not in effect because the insured had not given proper notice to the insurer. This created a factual issue of proper notice under the policy involved in that case. 279 Ala. at 506, 187 So. 2d at 260. In the present case there is no factual issue of notice under the policy.
In Major, a factual issue was present concerning ownership of the automobile which was driven by the insured. In Major, a determination of this issue was based at least in part on fact determinations. 272 Ala. at 24, 128 So. 2d at 107. In the present case there is no dispute as to ownership.
Any factual issues in the Oxford Lumber Company counterclaim which was severed *976 are still entitled to be tried by a jury. In its brief, Lumbermens admits this fact.
We agree with the trial judge that there were no issues of fact to be determined in this declaratory judgment proceeding and that it should have been a non-jury case. Oxford Lumber Company's answer filed in response to the initial declaratory judgment complaint admits that the insurance policy was in full force and effect at all relevant times. The only issue in the declaratory judgment proceeding was one of construction of the insurance policy which was in effect between the parties.
In Cohorst v. United States Steel Corp., 439 So. 2d 23 (Ala.1983), the trial court granted a summary judgment in a contract action, and the losing party appealed. This Court held, at 25:
Thus, in accordance with the longstanding rule that interpretation of a contract is a matter to be resolved by the court as a matter of law, we conclude that the trial court did not err in failing to present this issue to the jury, since here, there were no attendant issues which would be triable in a common law action.
Secondly, appellant contends that Lumbermens had a contractual obligation to defend Oxford Lumber Company against third-party lawsuits, based on the provisions of the policy dealing with property damage and personal injury.
Oxford Lumber Company argues in support of this contention, as follows:
Pierce Stewart, manager of Wadley Cash and Carry, is an agent of Oxford Lumber. The Stephenses claim that as a result of Stewart's negligence, they suffered a loss to their property interests and that as a consequence, they suffered mental upset and anguish which caused bodily harm or injury. The Stephenses claim that the property damage they suffered was the loss of an insurance policy. Thus, Oxford Lumber contends, since Lumbermens insured it against property damage and personal injury, and because the Stephenses claim property damage and personal injury against Oxford Lumber Company, then, under the terms of the policy, Lumbermens Mutual should defend Oxford Lumber Company. We disagree.
The trial court made the following statement:
The insuring clause of the policy indicates that the policy provides coverage for "damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence." The policy defines "personal injury" to mean the following:
None of the Stephenses' causes of action are included in this definition.
The policy defines "property damage" to mean the following:
Again, this definition does not cover the type of loss claimed by the Stephenses.
In addition, Oxford Lumber contends that the policy, containing large headings such as "Special Multi-peril" and "Broad Form Comprehensive General Liability," would lead an ordinary person into believing that the policy provided liability insurance in this particular situation. Again, we must disagree.
As the trial court held, an ambiguity cannot be created merely by use of words in a broad general title when the terms "personal injury" and "property damage" are specifically defined in the policy. Thus, because there is no ambiguity, even when the policy is most strictly construed against the insurer, there is no coverage under the policy provisions dealing with "property damage" and "personal injury."
Finally, Oxford Lumber contends that Lumbermens Mutual had an obligation to defend Oxford Lumber against third-party lawsuits under the products liability provisions of the policy. In its brief, Oxford Lumber argues as follows:
Although we give credit to appellant's counsel for his creativeness, we find this prodigious argument to be totally without merit. For purposes of the Alabama Extended Manufacturer's Liability Doctrine, the issuance of an insurance contract is a service and not the sale of a product.
We find no reversible error; the judgment of the trial court is, therefore, due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | May 31, 1985 |
28272a6f-7547-49e4-bf56-54b41654a271 | Vandegrift v. Lagrone | 477 So. 2d 292 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 292 (1985)
Jacqueline Lagrone VANDEGRIFT
v.
Randy LAGRONE.
83-1273.
Supreme Court of Alabama.
August 30, 1985.
Rehearing Denied September 27, 1985.
J. Sanford Mullins III of Davis, Mullins & Echols and Maryon F. Allen, Birmingham, for appellant.
Matt Scalici, Birmingham, for appellee.
FAULKNER, Justice.
This is an appeal from a judgment rendered on a jury verdict in a will contest. The proponent, Randy Lagrone, filed a petition to probate his grandfather's will nine years after the testator's death. Randy's petition alleges that the time for filing the petition was tolled by his father's fraudulent *293 concealment of the will's existence. Another of the testator's grandchildren, Jacqueline Lagrone Vandegrift, filed a contest of the will on the grounds that the petition to probate the will was not filed timely and that the will was the product of undue influence. The jury found in the proponent's favor and the contestant appeals on the grounds that the statute of limitations barred the filing of the petition to probate the will. We affirm.
The testator, A. W. Lagrone, had two sons, Howard and Wilbur. The contestant, Jacqueline, is Howard's daughter and the proponent, Randy, is Wilbur's son. A.W. owned 123 acres of wooded land containing a cabin in Lamar County. As a child and as a young adult Randy spent a considerable amount of time with his grandfather hunting and fishing on the property. Jacqueline's parents divorced when she was very young and she had little contact with A.W., Wilbur, or Wilbur's family while she was growing up.
In 1972 A.W.'s wife died and he moved into Wilbur's home to live with Wilbur and his wife, Annie. A.W. lived with Wilbur and Annie until his death on May 28, 1974. Following A.W.'s death, Wilbur paid the ad valorem taxes and maintenance expenses on the property. Wilbur died intestate on December 1, 1976. Howard decided to attempt to sell the property and asked Randy's mother, Annie, for a copy of A.W.'s deed to the parcel. Annie gave a copy of the deed to Randy, who delivered it to Howard. Howard found a buyer for the property, but for reasons undisclosed in the record Annie refused to sell. Shortly before his death in April of 1983 Howard conveyed to Jacqueline all of his interest in the property.
After her father's death Jacqueline retained an attorney to investigate the status of the real estate. On June 14, 1983, the attorney wrote Randy a letter stating that a search of the probate court's records revealed that there had been no administration of A.W.'s estate. Randy claims that until he received the letter from Jacqueline's attorney he had been under the impression that A.W.'s will had been probated and that the property had been left to Howard and Wilbur. Following receipt of the letter, Randy's mother, Annie, instituted a thorough search of her late husband's personal effects and found two wills, one dated 1956 and the other dated 1964.
Both Randy and his mother testified that they were unaware of either will's existence until Annie found them in June of 1983. The 1964 will devised the property to A.W.'s wife for her life and left the remainder in fee to Randy. Randy offered the 1964 will for probate on July 19, 1983. The 1956 will was deposited in the probate court but never offered for probate.
There was no evidence of undue influence. Before his mother found the will Randy was apparently unaware that he was its primary beneficiary. The attesting witness was personally acquainted with the testator. She testified that on the day the will was executed A.W. came unaccompanied to her office and that he did not appear to be acting under the influence of any third parties. The only real issue in the case is whether the petition was barred by the applicable statute of limitations.
As a general rule, wills which are not filed for probate within five years after the testator's death are ineffective. Section 43-8-161, Code of Alabama (1975). If, however, the proponent's failure to file a timely petition to probate the will is occasioned by fraud, the filing of the petition within one year from the time the petitioner discovered, or by reasonable diligence should have discovered, the fraud is effective as a timely filing. Section 6-2-3, Code of Alabama (1975); Fuller v. Qualls, 241 Ala. 673, 4 So. 2d 418 (1941). Fuller is the only Alabama case concerning the tolling of the time for filing a petition to probate a will. In that case the testator left a life estate to his wife and the remainder to his wife's sister. After the testator's death, the will was in the wife's possession and she concealed its existence from her sister, the proponent. After her sister's death, the proponent discovered the existence of the will and offered it for probate. The *294 petition was filed within a year after the sister's death but more than five years after the testator's death. This Court ruled that the statute was tolled by the wife's concealment of the will.
The contestant attempts to distinguish Fuller from this case on two grounds. First, she argues that in Fuller the wife knowingly concealed the will's existence, whereas in this case the proponent failed to prove that Wilbur had knowledge of the existence of the will. Fraudulent concealment implies knowledge of the facts concealed. Hudson v. Moore, 239 Ala. 130, 139, 194 So. 147 (1940). Second, she argues that the interest of the contestants in Fuller should be limited to situations where the fraud is committed by the contestant or someone through whom the contestant claims.
We disagree with the contestant's conclusion that there was no evidence from which the jury could have found that Randy's father knew about the will. Wilbur's widow, Annie, testified that she found the will during a "thorough search of her late husband's personal belongings and effects." Since the will was found among Wilbur's personal effects, the inference that he had knowledge of its existence was reasonable. In a situation such as this, circumstantial evidence is all that is usually available to make such a determination. Both parties were free to question Annie about the circumstances surrounding her discovery of the will, such as where it was found and what sort of other items were located near it, in order to attempt to determine whether Wilbur knew of its existence.
Nor do we read Fuller as applying only to those claiming through a wrongdoer. It is impossible to determine from a reading of the facts in Fuller whether the contestants claimed through the wife who had concealed the will. They may have been collateral heirs of the testator who were unrelated to the wife. In any event, it is not unreasonable to assume that if a relationship of the contestants to the wrongdoer in Fuller had been essential to the holding in that case the Court would have at least set out in its opinion the facts indicating the contestant's relationship to the wrongdoer. The opinion states that the statute is tolled "where the party invoking the remedy alleges and proves fraud as the basis of the right to proceed." 241 Ala. at 675, 4 So. 2d at 419. There is nothing in either the facts or the rationale of the opinion indicating that its applicability is limited to cases where the contestant claims through a wrongdoer.
The question of distinguishing Fuller notwithstanding, the contestant urges us to refuse to follow that holding in this case. She categorizes Fuller as an "aberration" and points out that in Moses v. St. Paul, 67 Ala. 168 (1880), a contract action by the assignee of a bankrupt to enforce a debt owed to the bankrupt, this Court refused to allow the statute of limitations to be tolled on the basis of a fraudulent concealment by the bankrupt creditor. She also argues that under the new probate code, which she concedes is inapplicable, acts of third parties cannot toll the statute. See § 43-8-5, Code of Alabama.
It is unnecessary, in light of the Fuller decision, to determine whether fraud by third parties generally can be relied on to toll the running of the statute of limitations or whether a different result would obtain under the new probate code. We are unwilling to limit the applicability of Fuller in the manner suggested by the contestant. If the existence of the will is fraudulently concealed from the proponent, he is effectively precluded from filing a petition for probate, whether it is the contestant or some third party who is guilty of concealing the will's existence. The proponent should not be deprived of the opportunity to establish his right to the property by the fraudulent concealment of the will by an heir at law of the deceased who, by concealing the existence of the will, seeks to obtain property rights to which he is not entitled.
The contestant also argues that, even assuming the applicability of the tolling statute to this case, the petition was barred because the proponent should have *295 discovered the will more than a year prior to filing the petition. A claim for fraud accrues at the time of the discovery of facts which would have led a person of ordinary prudence to a discovery of the fraud. Retail, Wholesale, etc. Union v. McGriff, 398 So. 2d 249, 251 (Ala.1981); Papastefan v. B & L Construction Co., 385 So. 2d 966, 967 (Ala.1980). The contestant argues that if Randy had searched his father's personal effects after his father's death or if he had searched for the will when Howard asked for a copy of it he could have located the will several years before it was found.
After his father's death Randy apparently relied on his mother to search his father's effects. Also, the request from Howard for the will was directed toward Randy's mother, not toward him. The question of when a party discovered or should have discovered fraud which would toll the statute of limitations is for the jury. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784, 786-87 (Ala.1981); Sims v. Lewis, 374 So. 2d 298, 304 (Ala. 1979). There are facts from which the jury could have concluded that Randy acted reasonably with regard to the time of his discovery of the will. We are not prepared to rule as a matter of law that under these facts the proponent ought to have discovered the will's existence earlier.
AFFIRMED.
ALMON, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., concurs in the result. | August 30, 1985 |
c1619779-7401-4966-9ea1-88965d72c0cf | Hinton v. State | 473 So. 2d 1125 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1125 (1985)
Ex parte State of Alabama
(re James Earl HINTON v. STATE).
84-391.
Supreme Court of Alabama.
May 10, 1985.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for petitioner.
Richard Waldrop, Enterprise, for respondent.
SHORES, Justice.
We granted certiorari in this case to determine whether the Court of Criminal Appeals erred in holding that James Earl Hinton was wrongly sentenced to life imprisonment without parole, pursuant to the Habitual Felony Offender Act as codified in Ala.Code 1975, § 13A-5-9(c)(3), 473 So. 2d 1116. We hold that the sentence of life imprisonment without parole was correct and reverse the judgment of the Court of Criminal Appeals insofar as it reduced Hinton's sentence to life imprisonment. The trial court's order of August 6, 1984, sentencing Hinton to life imprisonment without parole, is hereby reinstated.
James Earl Hinton was convicted of first degree robbery in the Circuit Court of Coffee County. The State duly filed notice of its intent to proceed under the Habitual Felony Offender Act and produced at the sentencing hearing certified records of three previous felony convictions of Hinton. The trial court thereupon sentenced Hinton to life imprisonment without parole.
The Court of Criminal Appeals found that one of the felony convictions relied on by the State, a 1964 conviction in the Pickens County Circuit Court for first degree murder, had been reversed and the case remanded for a new trial. Based on this, the court ordered a new sentencing hearing.
The State discovered, prior to the new sentencing hearing, that it had mistakenly supplied Hinton and the trial court with the citation for the reversal of the murder conviction and the remandment for a new trial, instead of the citation for the subsequent affirmance following a reconviction. On July 11, 1984, the State again filed notice of its intent to proceed under the Habitual *1126 Felony Offender Act. This time, the State supplied the citation for the affirmance following the reconviction for murder. On August 6, 1984, the date of the second sentencing hearing, the trial court again sentenced Hinton to life imprisonment without parole.
In the "On Return to Remand" portion of its opinion, the Court of Criminal Appeals reduced Hinton's sentence to life imprisonment on the following basis:
The Court of Criminal Appeals has held, and we agree, that an accused is not required to be notified of the State's intent to proceed under the Habitual Felony Offender Act prior to conviction of the substantive offense. Holsclaw v. State, 406 So. 2d 1019 (Ala.Crim.App.), cert. denied, 406 So. 2d 1020 (Ala.1981). It follows, therefore, that Rule 6(b)(3)(ii), Temporary Alabama Rules of Criminal Procedure, requires that the State give notice of its intent to proceed under the act, as well as notice of the convictions on which it will rely, within a reasonable time between conviction of the substantive offense and the sentencing hearing. Two days' notice before the sentencing hearing has been held adequate under Rule 6(b)(3)(ii). Holley v. State, 397 So. 2d 211 (Ala.Crim.App.), cert. denied, 397 So. 2d 217 (Ala.1981).
In the instant case, Hinton received notice of the State's intent to proceed under the act on July 11, 1984, some twenty-six days before the sentencing hearing held on August 6, 1984. He had ample notice, therefore, under Rule 6(b)(3)(ii). Further, there is nothing in either the letter or the spirit of Rule 6(b)(3)(ii) which precludes the State from proceeding under the act where a new sentencing hearing has been ordered. Accordingly, we reinstate James Earl Hinton's sentence of life imprisonment without parole.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur. | May 10, 1985 |
6b0a0985-b7ba-4a09-8dd5-0ab11993c4eb | Melvin v. Parker | 472 So. 2d 1024 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1024 (1985)
Mamie Richardson MELVIN
v.
Jesse Deleon PARKER and Sarah Parker.
84-75.
Supreme Court of Alabama.
June 7, 1985.
*1026 Daniel L. McCleave of Pennington, McCleave & Patterson, Mobile, for appellant.
Claude E. Patton, Mobile, for appellees.
JONES, Justice.
This appeal from a final judgment in a quiet title action presents two issues: 1) Whether the trial court erred in its interpretation and application of Code 1975, § 12-21-163 (the Dead Man's Statute); and 2) whether the trial court erred in rejecting Appellant's contention that Appellees' claim of title was time-barred pursuant to Code 1975, § 6-2-33.
J.R. and Daisy Richardson, husband and wife, acquired the subject property on September 12, 1963, through a right-of-survivorship warranty deed. Daisy predeceased J.R., who died intestate on June 30, 1972. According to the averments of the complaint, J.R. and Daisy had one son, Andrew R. Richardson. Andrew died intestate in 1973 and was survived by his wife, Mamie Richardson Melvin, Appellant/Plaintiff in this action, and their five children. After the death of their father, the five children conveyed their interests in the subject property to Mamie Melvin.
On January 25, 1983, Ms. Melvin filed a complaint in Mobile Circuit Court seeking to quiet title to this property. Before trial, Plaintiff obtained dismissals of, or default judgments against, all named and unnamed Defendants with the exception of Jesse and Sarah Parker, husband and wife, Appellees in the instant appeal. The Parkers claim title to a portion of the property deeded to Ms. Melvin by her children. The Parkers base their claim on a copy of a deed executed by J.R. Richardson on January 22, 1972. They do not have the original deed, nor was it ever filed in the proper probate court. Thus, the issue at trial between Mamie Richardson Melvin and the Parkers *1027 was whether J.R. delivered the deed to the Parkers.
At trial, the judge, sitting without a jury and hearing evidence presented ore tenus, allowed Jesse Parker to testify to the facts surrounding the alleged delivery to him of the original deed by J.R. Richardson on January 22, 1972. Ms. Melvin objected to the introduction of this testimony, arguing that it violated the Dead Man's Statute. After hearing this and other evidence, the trial judge found for the Parkers and awarded them that portion of the land described in their deed.
Having properly preserved the Dead Man's Statute issue for appellate review, Ms. Melvin argues to this Court that the introduction of Jesse Parker's testimony was reversible error. She also claims error in the trial court's rejection of her argument that the Parkers' claim of title was statutorily time-barred.
The Alabama Dead Man's Statute, codified in § 12-21-163, reads as follows:
Thus, the Dead Man's Statute does not render a witness incompetent and thereby exclude his testimony unless the following four questions can be answered affirmatively:
DeShazo v. Miller, 346 So. 2d 423, 426 (Ala. 1977). See, also, Lett v. Watts, 463 So. 2d 138, 139 (Ala.1984); Staik v. Jefferson Federal Savings & Loan Association of Birmingham, 434 So. 2d 763 (Ala.1983); and Lavett v. Lavett, 414 So. 2d 907 (Ala.1982).
Defendant Jesse Parker testified that he and his wife went with J.R. Richardson to the property described in the deed. There, Jesse said, J.R. handed Jesse the original deed. Jesse and his wife looked over the deed. He then handed the deed back to J.R., and asked him "to keep it for me til I got back in off the boat `cause I had to leave right momentarily afterwards."
Clearly, this testimony describing "some act done by the deceased, or in the doing of which he personally participated," Wood v. Brewer & Brewer, 73 Ala. 259, 262 (1882), is a "transaction" as that term is used in the Dead Man's Statute.
*1028 The Parkers argue that "if any estate was interested in the outcome of this litigation, it was the estate of Andrew R. Richardson ... not J.R. Richardson." Andrew's estate, of course, is interested in the outcome of this litigation, but this interest does not preclude his father's estate from also being interested. This Court has held that the protection of the Dead Man's Statute "extends ... to the rights of heirs and others claiming in succession or privity." Jennings v. Provident Life and Accident Insurance Co., 246 Ala. 689, 694, 22 So. 2d 319, 322 (1945). See, also, Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251 (1947). Nor does the fact that Ms. Melvin claims title to the land by a conveyance from protected heirs (i.e., Andrew and his children) operate to exclude her from the protection of the Dead Man's Statute. Walling v. Couch, 292 Ala. 33, 35, 288 So. 2d 435, 436 (1973); McCulloch v. Roberts, 290 Ala. 303, 308, 276 So. 2d 425, 429 (1973). The statute protects Ms. Melvin as it would her children if they had any remaining interest in the property.
The interest of the witness, Jesse Parker, in this litigation is his claim of title to the subject property. Quite obviously, this is a pecuniary interest.
Although it would appear that this final requirement is easily answered in the affirmative, the Parkers strenuously argue that Ms. Melvin does not meet this requirement of adverseness. At trial, the Parkers offered evidence that Andrew Richardson was not J.R. and Daisy Richardson's son. Several witnesses testified that Daisy had been married prior to her marriage to J.R. During that previous marriage, the evidence indicated, a young woman left her infant son with Daisy and then disappeared. Daisy called the child "Andrew" and reared him as her own. Shortly after Daisy married J.R., Andrew began calling himself "Andrew Richardson." J.R. treated Andrew as his son, but never formally adopted him.
Thus, according to the Parkers' argument, because J.R. is not Andrew's father, Andrew received nothing from J.R. by intestate succession. Ms. Melvin, then, the Parkers say, is not opposed to the Parkers' interest because her husband Andrew never had title to the subject property; therefore, at his death, his children did not take the property through intestate succession and had no interest to convey to Ms. Melvin. J.R.'s estate, the Parkers say, passed by intestacy pursuant to Code 1975, § 43-8-42, presumably to J.R.'s brothers and sisters, if any. Furthermore, the Parkers contend, these unknown heirs are the real parties in interest in the present action and the only parties adverse to their claim.
We note that if we accept the Parkers' argument that J.R. is not Andrew's father, it would not only preclude application of the Dead Man's Statute for failure to meet the fourth and final requirement of adverseness, but it would also operate as a complete defense in this action. That is, under this theory, Ms. Melvin would have no claim on the property; and, therefore, she would have no standing to bring this quiet title action against the Parkers.
The trial judge made no explicit finding as to Andrew Richardson's paternity. In his final decree, however, the judge "ORDERED, ADJUDGED and DECREED that MAMIE RICHARDSON MELVIN is the owner in fee simple of all lands described in the Bill of Complaint ... less those certain lands claimed by respondents, JESSE DELEON PARKER and SARAH PARKER." Thus, by vesting ownership in Ms. Melvin of all the property exclusive of that claimed by the Parkers, the judge implicitly found that Andrew was J.R.'s son and heir at law. Otherwise, as explained above, Ms. Melvin would have no legitimate claim to any of the property.
The Parkers would have us hold that Andrew was not J.R.'s son and reverse the trial court's finding as to Andrew's paternity. This we cannot do. Because *1029 the trial judge sat without a jury and heard evidence presented ore tenus, a presumption of correctness attached to his factual finding of paternity. Skinner v. Florence, 439 So. 2d 118, 119 (Ala.1983); Chaffin v. Hall, 439 So. 2d 67, 69 (Ala.1983). Our careful review of the evidence of record fails to convince us that the judge's findings are either unsupported by some evidence or that such findings are plainly and palpably erroneous or manifestly unjust. We, therefore, affirm the trial judge's implicit ruling as to Andrew's paternity.
Because Andrew was J.R.'s son, Ms. Melvin's interest is in opposition to the interest of Jesse Parker, the witness in our Dead Man's Statute analysis, in that she will get title to the property if the Parkers do not, and vice versa. We find, therefore, that in addition to having met the first three requirements for application of the Dead Man's Statute, Plaintiff also meets its fourth and final requirement. Unless, as the Parkers urge, the instant situation falls into one of the recognized exceptions to the statute's application, Ms. Melvin was entitled to its protection, and we must reverse the trial court for overruling her objections and allowing an incompetent witness, Jesse Parker, to testify.
Even though all requirements of the Dead Man's Statute are met, the statute may be inapplicable to certain persons because of the so-called "third-person" exception. This exception is set out in C. Gamble, McElroy's Alabama Evidence, § 102.01(8) (3d ed. 1977) (footnotes omitted):
Two "third persons" apparently witnessed the transaction between J.R. Richardson and Defendant Jesse Parker: T.E. Houston, Jr., a real estate agent, and Leo Waters, a friend of Defendant Jesse Parker and Andrew Richardson. The trial judge allowed both of them to testify as to the events of the transaction. Both of these "third persons" were competent to testify according to the third-person exception requirements set out above. Thus, they were properly allowed to testify.
The Parkers, however, argue that the presence of these two "third persons" made the Dead Man's Statute inapplicable even as to Jesse Parker, the adverse witness. As already noted, it is a well settled general rule that "[t]he fact that a third person overheard the conversation does not... authorize the adverse party to testify." Id. But, in some circumstances (an additional exception), just the opposite is true the presence of certain third persons does make the adverse witness competent and renders the Dead Man's Statute rule of exclusion inapplicable.
The Dead Man's Statute is inapplicable and the adverse witness competent to testify "[i]f one associated with the deceased was present when the transaction occurred and is alive and able to give his version of the facts." First National Bank of Birmingham v. Chichester, 352 So. 2d 1371, 1374 (Ala.Civ.App.1977). In other words, aside from the issue of a third person's competency to testify under the "third-person" exception, under a different exception and test, a third person's presence actually *1030 may remove the incompetency of the adverse witness.
Third persons generally found to have been "associated" with the decedent include: 1) a joint owner; id.; 2) a partner; Homewood Dairy Products Co. v. Robinson, 254 Ala. 197, 48 So. 2d 28 (1950); Annot., 22 A.L.R.2d 1068 (1952); 3 S. Gard, Jones on Evidence, § 20.33 (6th ed. 1972); 3) a spouse; Hentz v. Darden, 394 So. 2d 925 (Ala.1981); Lowery v. Stinson, 291 Ala. 415, 282 So. 2d 244 (1973); 4) a son-inlaw; Sheppard v. T.R. Miller Mill Co., 332 So. 2d 374 (Ala.1976); and 5) an agent; Reliance Insurance Co. v. Jack's Construction Co., 360 So. 2d 292 (Ala.1978); 3 S. Gard, supra, at § 20.34.
Thus, the final and determinative inquiry on this issue is: Were either of the third persons present during the transaction between Defendant Jesse Parker and J.R. Richardson sufficiently associated with J.R. Richardson to remove Jesse Parker's incompetency as a witness under the Dead Man's Statute? Leo Waters, who according to his testimony was present during the transaction, was a friend of Andrew Richardson and Jesse Parker. He knew J.R. Richardson, but he had no particular association with him. Clearly, Leo Waters, as a third person present during the transaction, was not associated sufficiently with J.R. Richardson under the "association" exception to remove Parker's incompetency.
The other third person present during the transaction, T.E. Houston, Jr., is a real estate agent. Mr. Houston testified that he was a good friend of J.R. Richardson, that he had handled several real estate transactions for J.R., but that he did not prepare the Parker deedhe merely notarized it at the request of J.R. Richardson. As we have held, in some instances, a third person who is decedent's agent may be associated sufficiently with the decedent to render the adverse witness competent to testify. Reliance Insurance Co. v. Jack's Construction Co., supra. The instant facts as to the relationship between T.E. Houston, Jr., and J.R. Richardson, however, are insufficient, as a matter of law, to allow us to conclude that Mr. Houston's "interests were clearly aligned with those of [J.R. Richardson] in this transaction" and that Mr. Houston "was sufficiently associated with the decedent and had a sufficient community of interest with him that we may safely rely upon [him] to give the decedent's version of the transaction," so as to render the "association" exception to the Dead Man's Statute applicable. Lowery v. Stinson, supra, 291 Ala. at 419, 282 So. 2d at 247.
We hold, therefore, that the trial court erred in overruling Ms. Melvin's objection to Jesse Parker's testimony as violative of the Dead Man's Statute. For the sake of clarity, however, we emphasize that our holding with respect to the application of the Dead Man's Statute does not affect either the admissibility or the credibility of the testimony of the two "third persons" who witnessed the transaction between J.R. Richardson and Jesse Parker.
In addition to arguing error regarding the Dead Man's Statute, Ms. Melvin argues that the trial court erred in failing to dismiss the Parkers' claims because they failed to commence an action for the recovery of the land in question within ten years as prescribed by Code 1975, § 6-2-33. Because the Parkers asserted their claim of title as an affirmative defense, we find no merit in Ms. Melvin's argument as to this issue.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur. | June 7, 1985 |
37d1fc5c-5b56-4e0c-a250-1ae44e04df0e | Yancey v. Farmer | 472 So. 2d 990 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 990 (1985)
Granvil C. YANCEY and Willodean Yancey
v.
James FARMER.
83-708.
Supreme Court of Alabama.
June 7, 1985.
*991 T.J. Carnes of Carnes & Carnes, Albertville, and Terry Gillis of Kellett & Gillis, Fort Payne, for appellants.
Charles E. Mauney, Fort Payne, and Oakley Melton, Jr. of Melton & Espy, Montgomery, for appellee.
FAULKNER, Justice.
James Farmer filed this action for compensatory and punitive damages against Granvil Yancey and his wife, Willodean Yancey, for assault and battery, false imprisonment, and conspiracy to commit assault and battery and false imprisonment. The jury returned a verdict against each defendant for $85,000.00. A judgment for $170,000.00 was entered against the defendants and they appeal.
Farmer and the Yanceys lived about a half-mile apart in a rural community. They had known one another most of their lives and apparently there had been no ill will between them prior to the incident in question. Farmer owned a fish market and, in connection with the market, he fished commercially and trapped. The Yanceys suspected Farmer of involvement in the illegal trapping which had been taking place in the community. On the day in question they found Farmer near illegally set traps and informed him that they intended to make a citizen's arrest for illegal trapping. An affray followed and during the course of the altercation Farmer suffered a broken jaw and three cracked ribs.
The defendants raised numerous issues on appeal. One involves the trial court's refusal to allow them to introduce evidence of Farmer's criminal conviction in district court for illegal trapping. Farmer appealed the district court conviction and the case was pending in circuit court at the time of the trial in this case.
A private citizen may make an arrest for an offense committed in his presence. Section 15-10-7, Code of Alabama (1975). If the person who was forcibly detained did not, in fact, commit a crime, however, the detainee may bring an action for false imprisonment. In such a case, the good faith of the person making the arrest or the existence of probable cause that the person arrested committed a crime does not justify the trespass. Daniels v. Milstead, 221 Ala. 353, 354, 128 So. 447 (1930). Even though it does not excuse the trespass, evidence that the person making the citizen's arrest acted in good faith and had *992 reasonable grounds to believe that his actions were lawful is admissible in a false imprisonment action to rebut a claim for punitive damages. Simpson v. Boyd, 212 Ala. 14, 101 So. 664 (1924); Phillips v. Morrow, 210 Ala. 34, 97 So. 130 (1923).
As a general rule a person's conviction in a criminal case is admissible against him in a civil action to show that he did the act for which he was convicted. If, however, the accused is entitled to a trial de novo in circuit court on an appeal of a district court conviction, the district court's judgment of conviction is vacated by such an appeal and the district court conviction is not admissible to prove that the accused did the act he was accused of. McElroy's Alabama Evidence, §§ 269.05(1), (4). Since Farmer appealed his district court conviction the Yanceys were not entitled to introduce the conviction to show that Farmer was trapping.
The Yanceys argue that the district court conviction was admissible, not on the question of liability, but on the issue of punitive damages. They contend that evidence of the conviction should have been allowed to support their claim that they had probable cause to arrest Farmer. In support of that proposition the defendants draw an analogy from the law of malicious prosecution. A judgment of conviction is prima facie evidence that probable cause for instituting the prosecution existed. Evidence of a conviction in district court is admissible in a malicious prosecution action to prove that the defendant had probable cause to believe that the accused committed the crime he was charged with even if the accused was found not guilty in the circuit court on appeal. Brown v. Parnell, 386 So. 2d 1137, 1139 (Ala.1980); Republic Steel Corp. v. Whitfield, 260 Ala. 333, 337, 70 So. 2d 424 (1953). Defendants argue that if a conviction constitutes prima facie evidence of probable cause for instituting a prosecution in a malicious prosecution action, it should also be relevant to show that probable cause existed to make an arrest.
We agree. Evidence of a conviction in district court should be allowed in a false imprisonment action on the question of damages in support of the defendants' claim that they had probable cause to make a warrantless arrest regardless of the pendency of an appeal to circuit court. The trial court erred when it refused to allow the defendants to introduce evidence of Farmer's conviction in district court for illegal trapping. The defendants preserved the error by making a proper offer of proof. Therefore, the judgment must be reversed based on the court's refusal to allow admission of the proffered evidence.
Although resolution of the issue of the admissibility of the district court conviction is dispositive of this appeal, we will address another of the issues raised by the defendants in order to avoid confusion over the issue on retrial. When the jury retired for its deliberations, separate verdict forms were sent into the jury room for each defendant. The jury returned a verdict against Mr. Yancey stating, "We, the jury, find the issues in favor of the plaintiff and against the defendant, Granvil Yancey, and assess the plaintiff's damages at $85,000.00." A verdict for $85,000.00 in like form was also returned against Mrs. Yancey. The judgment rendered by the trial court on the jury's verdicts was as follows:
Under Alabama law damages against joint tort-feasors are not apportioned. Joint tort-feasors are jointly and severally liable for the entire damage sustained. Battle v. Morris, 265 Ala. 581, 93 So. 2d 428, 432 (1957). The satisfaction of a judgment against one joint tort-feasor discharges *993 the other from liability. Williams v. Woodman, 424 So. 2d 611, 613 (Ala.1982).
In this case verdicts of $85,000.00 were rendered against each of two joint tort-feasors. A judgment for $85,000.00 plus costs was entered against each defendant based on the verdicts. Therefore, either of the two defendants could satisfy the judgment against him by paying $85,000.00 plus court costs. Since the satisfaction of the judgment by one joint tort-feasor would discharge the other tort-feasor from liability, if either defendant were to satisfy the judgment against him by paying $85,000.00 plus court costs, the other defendant would be discharged from liability. Therefore, the trial court's ruling that the judgment was for an aggregate amount of $170,000.00 was erroneous because it necessarily assumed that the damages were apportioned between the two defendants.
Plaintiff argues that the jury intended to render a verdict against the defendants for $170,000.00. He points out that following the return of the verdicts, the jury was polled as to whether its intention was to render an aggregate verdict in the amount of $170,000.00 or $85,000.00. Each member of the jury indicated orally that his intention was to render an aggregate verdict of $170,000.00. Plaintiff takes the position that the defendants' failure to object to the form of the verdict at the time of trial precludes them from raising the issue of the amount of the judgment on appeal.
It appears to us that it was incumbent on the plaintiff to object to the form of the verdict at trial if he contended that the jury intended to render a verdict against the defendants for $170,000.00 instead of $85,000.00. The responses of the jury members during the polling of the jury were not sufficient to allow the trial court to enter a judgment inconsistent with the verdicts rendered. City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25 (1916).
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | June 7, 1985 |
3ba3dfe5-5252-49b4-a4e2-73e933c2d191 | Bacon v. DIXIE BRONZE CO., INC. | 475 So. 2d 1177 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 1177 (1985)
William BACON and Mrs. William Bacon
v.
DIXIE BRONZE COMPANY, INC., a corporation.
Gordon Elmer TUGGLE III
v.
DIXIE BRONZE COMPANY, INC., a corporation.
84-158, 84-611.
Supreme Court of Alabama.
June 28, 1985.
Rehearing Denied August 23, 1985.
E. Ray Large and Hub Harrington and William W. Smith of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellants.
Stanley A. Cash and M. Keith Gann of Huie, Fernambucq and Stewart, Birmingham, for appellee.
PER CURIAM.
The trial court granted summary judgment in favor of a building owner sued by two injured employees of an independent contractor who was modifying the building. The learned trial judge entered the following order granting summary judgment. We affirm that judgment and adopt the trial court's order as the opinion of this Court:
"A. Motion by Dixie for Summary judgment.
"Bacon and Tuggle make claim for the injuries and damages they sustained on December 2, 1980, while they were working *1178 on the roof of a building then owned by Dixie which was located in an industrial park area near Oneonta, Alabama, in Blount County.
"Dixie had contracted with Irondale Fabricators, an independent contractor, for the installation of a sand storage work on the roof of the Dixie building. Bacon and Tuggle were employees of Irondale Fabricators and were engaged in cutting a rectangular opening in the roof approximately eight feet by six feet, one side of which was to be located approximately eight inches from the edge of the roof.
"The roof itself was supported by channel beams, two of which crossed the area where the opening was to be made by Bacon and Tuggle. Using a cutting torch, Bacon began cutting through the channel beams or "purlins" that were supporting the section of the roof being removed. The two channel beams had already been cut in three places and Bacon was beginning to make the final cut. He testified as follows:
"Both Bacon and Tuggle were located over a part of the channel beam or purlin a short distance from the point where it was provided support. Bacon was engaged in cutting through the channel beam while Tuggle was going to hold the part of the beam which would have been freed by the cut so as to prevent it from falling. After the cut in the beam had been made, that portion of the channel beam immediately under Bacon and Tuggle collapsed so that both of them fell to the ground causing the injuries for which they now make claim.
"In opposition to Dixie's motion for summary judgment, Bacon and Tuggle argue that the collapse of the channel beam at the point of its support was the result of a defective weld made to connect the channel beam at the point of its support and that at least a scintilla of evidence has been presented to establish Dixie's liability to Bacon and Tuggle for the injuries resulting from the collapse of the channel beam.
"Tuggle has submitted the affidavit of Bruce Monical, a person having expert knowledge concerning the safe erection of steel membered buildings. Having inspected the entire building, Monical stated under oath the following regarding the area where the cut in the roof was made and Bacon and Tuggle fell:
"For purposes of Dixie's motion for summary judgment, this Court will consider that the condition of the collapsing channel beam was defective due to a defective weld at its point of support within a few feet of where Bacon and Tuggle were standing and making a cut in the beam. There remains the question whether liability can be imposed upon Dixie for this defective condition.
"In support of its motion for summary judgment, Dixie has submitted the affidavit of Clyde C. Turner, its assistant general manager, who states:
"In another affidavit, Alfred H. Turner, Vice President and General Manager of Dixie, states under oath:
"In Chrysler Corporation v. Wells, 358 So. 2d 426 (Ala.1978), Wells, a welder employed by Engineering Maintenance Services, an independent contractor, was engaged in work for his employer at the Chrysler plant in Huntsville, Alabama. Although there were ladders available for Wells to use, Wells instead attempted to climb to the work area approximately thirty feet above floor level by climbing up a storage bin. He supported his weight by holding on to wire baskets placed in the storage bins to contain products belonging to Chrysler. When two of the baskets broke loose from the metal bins under his weight, he fell approximately twenty feet to the floor.
"Wells then made claim for his injuries against Chrysler. His theory of liability was that as an employee of an independent contractor, he was an invitee on Chrysler's premises and that Chrysler negligently failed to provide him with a safe place to work. Reversing the verdict and judgment rendered in favor of Wells, the Supreme Court of Alabama concluded that under the evidence Wells had failed to establish by the evidence a breach of any duty by Chrysler to him. The Court defined the duty owed by the owner of premises to an independent contractor as follows:
"In Quillen v. Quillen, 388 So. 2d 985 (Ala.1980), the Court quoted with approval from its earlier opinion in Lamsom [Lamson] & Sessions Bolt Company v. McCarty, 234 Ala. 60, 173 So. 388 (1937), as follows:
"Speaking further to the same issue, the Supreme Court stated:
"Also see, e.g., Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So. 2d 474 (1966); Evans v. Kendred, 362 So. 2d 206 (Ala.1978); Veal v. Phillips, 285 Ala. 655, 235 So. 2d 799 (1970).
"No evidence has been presented in the present case to establish that Dixie knew or in the exercise of reasonable diligence should have known of the defective condition of the channel beam and either taken steps to eliminate the defects or warned Irondale Fabricators or its employees, Bacon and Tuggle, of the same. Dixie has submitted evidence establishing that the portion of the building containing the defective channel beam was constructed by an independent contractor and that Dixie itself had no knowledge of the defective condition. The roof had been in use for a number of years. So far as appears from the evidence, Dixie had no reason to be concerned about or to inspect the channel beam here involved.
"Bacon and Tuggle also argue in opposition to Dixie's motion for summary judgment that Dixie as the owner of the building owed Bacon and Tuggle a nondelegable duty to provide a safe place for them to work because of the inherent or intrinsically dangerous nature of the work being performed by Bacon and Tuggle.
"In Evans v. Kendred, 362 So. 2d 206 (Ala.1978), this same argument was made by Evans. Evans was a pipe fitter whose duties included threading forty foot sections of pipe into pipe racks which were constructed by his employer, Fish Engineering and Construction Company. At the time of his injury, a crane was being used to position a section of pipe on the rack upon which Evans was standing. The crane was being operated by another Fish employee. The injury was said to have occurred because the operator of the crane `boomed' the crane boom into Evans, causing the pipe to slip and Evans to be knocked to the ground.
"Affirming the grant of summary judgment in favor of Hunt Oil Company, the owner, the Supreme Court of Alabama rejected the argument that the work being performed by Evans was inherently or intrinsically dangerous. The Supreme Court stated:
"In Scoggins v. Atlantic & Gulf Portland Cement Co., 179 Ala. 213, 60 So. 175 (1912), Scoggins as administrator of the estate of a deceased worker brought suit for the wrongful death of his intestate who was killed when the veranda of a clubhouse or boarding house fell on him. At the time, the veranda was in the process of construction and was not covered but some planks or lumber which had been placed on the veranda to be used in the construction formed a shelter from the rain. The veranda was only temporarily braced or propped. The deceased was not engaged in *1182 the work of building the veranda but was employed, as foreman of a squad of men, in building a road near the place of the accident and went there with his men only to get out of the rain.
"Affirming the action of the trial court in granting the affirmative charge in favor of the defendant, the Supreme Court of Alabama rejected the argument that the erection of the clubhouse or boarding house was an undertaking which was intrinsically or inherently dangerous. The fall of the veranda was attributed to the failure to sufficiently prop or support the structure while it was being erected. The Supreme Court stated in its opinion:
"Bacon and Tuggle have cited the decision of the Supreme Court of Alabama in Golson v. W.A. [W.F.] Covington Manufacturing Co., 205 Ala. 226, 87 So. 439 (1920), in support of their argument that the nature of the work being performed by them was inherently dangerous. However, that case involved a claim for the wrongful death of Golson's five year old son who was killed while playing in unenclosed premises owned by the defendant when the child accidentally touched a hay wire connected to a 2,000 volt line. It was there asserted that a wire carrying 2,000 volts and within the reach of children was a dangerous instrumentality. The Court concluded there that the owner had a nondelegable duty to exercise reasonable care and diligence to protect third persons, especially children, from such a dangerous instrumentality.
"The work being performed by Bacon and Tuggle in removing a section of the roof from Dixie's building would not be intrinsically or inherently dangerous if it had been performed with the exercise of reasonable care, skill and diligence. Under the circumstances presented in this case, Dixie did not, as owner, have a [non]delegable duty to provide Bacon and Tuggle with a safe place to work.
"No evidence has been presented to establish any liability of Dixie to Bacon and Tuggle.
"Accordingly, the Motion for Summary Judgment filed by Dixie Bronze Company, Inc., a corporation, is hereby granted. Judgment is hereby rendered in favor of the defendant, Dixie Bronze Company, Inc., a corporation."
See, also, the opinion of this Court in Secrist v. Mark IV Constructors, Inc., 472 So. 2d 1015 (Ala.1985).
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES and BEATTY, JJ., concur. | June 28, 1985 |
8a8b3ed2-dd2c-45ef-98fd-10df833d50de | Windham v. Pope | 474 So. 2d 1075 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 1075 (1985)
Cindy C. WINDHAM, Executrix of the Last Will and Testament of O.W. Pope, Deceased
v.
Luico POPE.
83-797.
Supreme Court of Alabama.
July 26, 1985.
L. Merrill Shirley, Elba, James H. Weatherford, Enterprise, for appellant.
S. Fleetwood Carnley, Elba, for appellee.
FAULKNER, Justice.
This is a will contest. O.W. (Osmie) Pope died on September 16, 1982. His wife had died about ten months prior to his death. He had no children. One of Osmie's nieces, Cindy Crosby Windham, filed a petition seeking to have his last will and testament probated. After the will was admitted to probate, one of Osmie's brothers, Luico Pope, filed a petition for removal of the *1076 estate proceedings to circuit court and filed a contest of the will. The complaint alleged that the testator lacked testamentary capacity to make a will, that the will was not properly executed, and that the will was the product of undue influence. A jury returned a verdict in the contestant's favor and a judgment was entered on the verdict. Cindy Windham appeals.
The will is a one-page document devising a specific parcel of real estate. The land in question is part of a tract which Osmie and his brother-in-law, Randolph Crosby, purchased about 1952, '53, or '54 and divided between themselves. The will devised Osmie's interest in the property to Randolph's daughter, Cindy Windham. There were no other devises in the will and there were no bequests. There were no instructions in the will regarding the residuary of the estate.
The lawyer who drafted the will, Joe Cassady, testified about the circumstances surrounding the drafting and execution of the will. Randolph Crosby accompanied Osmie to Cassady's office on the occasion when they discussed the will. Randolph was present while Osmie and Cassady talked. Osmie gave Cassady a deed and told him that the property described in the deed was the only property he wanted disposed of by the will. Cassady suggested to Osmie that he dispose of all his property by the will instead of just the real estate, and Osmie replied that the real estate was all he wanted included. Cassady testified that Randolph did not offer any advice or suggestions to Osmie as to the contents of the will except to suggest that Osmie follow Cassady's advice and dispose of all his property by the will. Cassady testified that at the time the will was drafted he was unaware of Osmie's relationship to either Randolph Crosby or Cindy Windham. After the will was prepared, Osmie signed the will in the presence of Cassady and Crosby and they signed the will as attesting witnesses.
The substance of the pertinent testimony in support of the contestant's case is as follows. One neighbor testified that Osmie once told him that his lawnmower stayed gone so much that every time he wanted to use it he had to go get it. A relative testified that about three weeks before he died, Osmie told her that he had not made a will and that he was not going to. Another relative testified that Randolph had stated to him that "we shouldn't have put the will back in [the safety deposit box]" and not to mention the will. The witness also testified that he had stopped at Osmie's house one day and asked him to eat dinner with him and his family any time that he wished. He stated that Osmie replied that he "liked to stay at home, said he would fare better at his home, but he appreciated it, and he wished that they would leave him alone and pointed down toward Randolph's." The sister of Osmie's late wife, Ruth, testified that following Ruth's death Cindy and Randolph were at Osmie's house regularly. They helped look after him. Ruth, who had been a schoolteacher, had always taken care of paying the bills and that type of thing. After she died, Cindy and Randolph would help Osmie by writing checks which Osmie signed for his bills. Despite the fact that he allowed Cindy and Randolph to handle his affairs, the sister admitted that Osmie "knew about his money and where his money was I am sure. He was that type, but as far as taking hold and taking care of everyday things, no." She testified that she did not know of any incidents of Cindy or Randolph "bossing" Osmie. She testified that after Osmie died Randolph once stated to her that "We shouldn't have put the will back in [the safety deposit box]."
According to the bank records introduced into evidence, on the day after Osmie's death Cindy Windham, Andy Windham, Joe Cassady, and two bank employees opened Osmie's safety deposit box and removed the will in question. The bank's records do not indicate that anything else was taken from the box.
The contestants challenged the will on numerous grounds. It is apparent from the record, however, that the only issue actually litigated was the question of undue *1077 influence. The testimony of due execution was uncontroverted. The only testimony regarding the testator's capacity to make a will was to the effect that he "knew about his money and where his money was." The only issue presented in this appeal is whether the evidence supports the verdict.
The contestant who alleges undue influence bears the burden of proof. Kelly v. Donaldson, 456 So. 2d 30, 33 (Ala. 1984). The burden of proof is shifted to the proponent if the contestant proffers evidence (1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. Penn v. Jarrett, 447 So. 2d 723, 724 (Ala.1984); Reed v. Walters, 396 So. 2d 83, 86 (Ala. 1981).
We agree with the proponent that the contestant failed to produce even a scintilla of evidence as to each element necessary to shift the burden to the proponent or to otherwise prove undue influence. While there was some evidence to support the proposition that there was a confidential relationship between Cindy and Osmie, or between Randolph and Osmie, the contestant failed to prove (1) that Cindy was a favored beneficiary; (2) that either she or her father was dominant and controlling; or (3) that there was undue activity in procuring the execution of the will.
This Court has defined "favored beneficiary":
Cook v. Morton, 241 Ala. 188, 1 So. 2d 890, 892 (1941). The "equal claim of others" refers not to the laws of descent and distribution, but to the facts of the particular case. Mindler v. Crocker, 245 Ala. 578, 18 So. 2d 278, 281 (1944); Cook, supra.
In this case there was no evidence indicating that others had a claim to the testator's sympathy or benevolence which was equal to or greater than the devisee's. See Pruitt v. Pruitt, 343 So. 2d 495 (Ala.1976). The record is devoid of evidence as to who the natural objects of the testator's bounty might have been. He was a widower without children. There was no evidence tending to show that he was closer to some other person or persons than he was to Cindy. Moreover, the will only disposed of a portion of the estate, and there was no evidence showing the value of the remainder of the estate which will be distributed among the contestant and those of equal consanguinity. It is mere speculation to conclude that Cindy was to receive a disproportionate share of the estate under the will.
Nor did the contestants prove that Cindy or her father was the dominant party in their relationships with Osmie. Although she took care of him and wrote his checks, there was no suggestion that she handled his money in any way except according to his wishes and directives. The undisputed testimony was that Osmie knew where his money was. There was no testimony that Randolph or Cindy ever "bossed" Osmie. The naked statement that Osmie once said that he wished "they would leave him alone" is insufficient to prove that Osmie was dominated by anyone.
Even if we were to assume that Randolph was acting on Cindy's behalf in taking Osmie to a lawyer to have the will drafted, the fact that Randolph accompanied Osmie to the lawyer's office does not in itself establish undue activity in procuring the execution of the will. Sanford v. Coleman, 418 So. 2d 856, 859 (Ala.1982); Johnson v. Howard, 279 Ala. 16, 181 So. 2d 85, 90 (1965). The lawyer who drafted the will testified that while they were in his office Randolph's only suggestion to Osmie regarding the contents of the will was his suggestion to dispose of all his property by the will, a suggestion which Osmie did not follow.
*1078 The most that the contestant proved was that Cindy and her father had an opportunity to exert undue influence on Osmie. They helped take care of him and spent a great deal of time in his home. Without more, that is not sufficient to show undue influence which will vitiate the operation of the will. Arrington v. Working Woman's Home, 368 So. 2d 851, 854 (Ala.1979). The scintilla rule is not satisfied by speculation. Penn v. Jarrett, 447 So. 2d 723, 725 (Ala. 1984). It is not merely influence which will defeat a will; it is undue influence. Sanford v. Coleman, 418 So. 2d 856, 859 (Ala.1982). There must be some evidence that the favored beneficiary played such a part in the procurement of the will that the testator did not make the will under his own volition or devise his property in a manner consistent with his free will and desires. Rabon v. Rabon, 360 So. 2d 971, 972 (Ala.1978). No such evidence was introduced in this case.
The judgment is reversed for the trial court's failure to grant the proponent's motion for directed verdict.
REVERSED AND REMANDED.
JONES, ALMON, SHORES and ADAMS, JJ., concur. | July 26, 1985 |
3cc622f5-152a-4414-92e1-20aba6da0239 | Barnes v. Liberty Mut. Ins. Co. | 472 So. 2d 1041 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1041 (1985)
Mildred BARNES
v.
LIBERTY MUTUAL INSURANCE COMPANY.
84-197.
Supreme Court of Alabama.
June 7, 1985.
*1042 George T. Craig, Athens, for appellant.
Harold F. Herring and William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee.
FAULKNER, Justice.
Mildred Barnes appeals from an order granting summary judgment in favor of Liberty Mutual Insurance Company. We affirm.
While employed at DAB Industries in Athens, Alabama, Barnes was injured when the machine she was operating extruded a shaving of hot metal which landed on the left side of her face. Barnes brought suit against several defendants, including Liberty Mutual as the worker's compensation insurance carrier for DAB Industries. The complaint alleged that Liberty Mutual "negligently and/or wantonly inspected [the employer's] premises with regard to safety."
Liberty Mutual moved for and was granted summary judgment based upon the pleadings, interrogatories, affidavits, and the deposition of Mildred Barnes.
Mildred Barnes appeals, claiming that there existed at least a scintilla of evidence in support of her claim of negligent inspection against Liberty Mutual.
In her brief, Barnes relies upon the deposition testimony of the personnel manager of DAB Industries, to support her claim of negligent inspection. This deposition was not considered by the trial court, as it was not filed at the time the motion for summary judgment was heard. The trial court excluded this deposition and several other documents and depositions from the record on appeal, in response to a motion to strike filed by Liberty Mutual. The only deposition that was considered by the trial court was the deposition of Mildred Barnes.
As we noted in Stallings v. Angelica Uniform Co., 388 So. 2d 942 (Ala.1980), "the trial court cannot be put in error for failing to consider evidence which had not been presented to it at the time of the submission of the motion." Id. at 945.
Because Barnes does not allege error in the trial court's granting of defendant's motion to strike, and because the contents of the excluded material are not contained in the record before us, it cannot be considered in this Court's review. Prudential Insurance Co. of America v. Coleman, 428 So. 2d 593, 598 (Ala.1983). On appeal from the granting of a summary judgment, this court is limited to a review of the record alone, and the record cannot be modified or altered by statements in briefs of counsel, nor by affidavits or other evidence not properly submitted. Green v. Standard Fire Insurance Co. of Alabama, 398 So. 2d 671, 673 (Ala.1981).
In our determination of the propriety of summary judgment, we are limited in our review to the same factors considered by the trial court when it initially ruled on the motion. Ex parte Bagby Elevator & Elec. Co., 383 So. 2d 173 (Ala.1980). The question before us, therefore, is whether there was a scintilla of evidence before the trial court to prove negligent inspection on the part of Liberty Mutual.
Common law liability to third parties can arise from the negligent performance of even a voluntary undertaking. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So. 2d 844 (1971). Under current Alabama law, a worker's compensation carrier may be liable when it voluntarily undertakes to inspect an employer's premises for safety. Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334, 338 (Ala.1980). However, in a suit of this nature, a plaintiff bears the burden of proving (1) that the defendant had a duty, or assumed a duty by voluntarily undertaking the inspection; (2) the scope of that duty; (3) whether the duty was breached; (4) whether there was damage or injury; and (5) whether the injury *1043 was proximately caused by that breach. Fireman's Fund, 394 So. 2d at 349 (Jones, J., concurring); see also, United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596 (Ala.1977).
In the instant case, there was evidence to indicate that Liberty Mutual did conduct some voluntary safety inspections at DAB Industries. However, there was no evidence to indicate that Liberty Mutual ever inspected the machine or the area in which Barnes was working. There was also not even a scintilla of evidence presented to indicate that any safety inspection was negligently performed or that any negligence on the part of Liberty Mutual proximately caused Barnes's injuries.
We, therefore, conclude that Barnes failed to present even a scintilla of evidence that she was injured as a result of Liberty Mutual's negligent inspection. Accordingly, we agree with the trial court that there exists no genuine issue of material fact, and hereby affirm.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | June 7, 1985 |
ee091086-535e-49d0-9495-08aaab30962a | Ward v. DALE COUNTY FARMERS CO-OP, INC. | 472 So. 2d 978 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 978 (1985)
M.C. WARD
v.
DALE COUNTY FARMERS CO-OP, INC., a Corporation.
No. 83-1033.
Supreme Court of Alabama.
May 31, 1985.
L. Merrill Shirley, Elba, for appellant.
Jackson W. Stokes, Elba, for appellee.
SHORES, Justice.
Dale County Farmers Co-op, Inc., a corporation, sued Ward, alleging that he was indebted to the Co-op in the amount of some $16,000.00 due by open account or by *979 account stated for fertilizer furnished to Ward. Ward denied the debt and filed a counterclaim, alleging that the fertilizer was not suitable for the use for which it was intended.
The case was tried to a jury, which returned a verdict in favor of the Co-op. Ward appeals. We affirm.
The evidence establishes that the Co-op supplied fertilizer and other items to Ward for use on his coastal bermuda hay crop during 1982. He did not pay for the materials because he was dissatisfied with the crop. He contends that the fertilizer caused the unsatisfactory crop, and the Coop contends otherwise. The jury obviously believed the Co-op's version.
On appeal, Ward contends that reversible error occurred when the court allowed into evidence the following letter addressed to Ward by the local manager of the Co-op:
Ward contends that the admission of the letter violates the hearsay rule and further argues that the Co-op failed to establish that the letter was mailed to Ward, although the writer testified that he wrote the letter, addressed it to Mr. Ward, and mailed it to him, and Ward did not deny receiving it. We cannot reverse the judgment of the trial court for allowing the letter into evidence. Ward did not dispute that an account existed between himself and the Co-op. In fact, he acknowledges that one did exist, but denied that he received all of the items which the Co-op's invoices indicated had been supplied him. Under these circumstances, it was not error to allow the letter into evidence. According to C. Gamble, McElroy's Alabama Evidence § 193.06 (3d ed. 1977):
The only other alleged error concerns the admission of evidence by the county agent, Ted Smith. Again, we find no error. It is Ward's contention that the trial court erred in allowing this witness to express an opinion without laying a proper predicate. Ward contends that the witness should not have been allowed to express an opinion as to why the hay crop was defective. Apparently, the argument is based upon the assertion that only a soil test could scientifically *980 show why the crop was inferior, and, therefore, that the trial court erred in allowing the witness to testify, after examining the grasses growing on the lands, that the quality of the grasses was probably caused by a low pH level.
The Co-op argues that whether one is adequately qualified as an expert is largely within the discretion of the trial court. We agree, and as the Court of Criminal Appeals stated in Gullatt v. State, 409 So. 2d 466, 472 (Ala.Cr.App.1982), "[a]n individual might be qualified as an expert witness by his study, practice, experience or observation." In this case, the evidence showed that the witness had been the county agent in two counties for several years, and that he had inspected the crops involved in this case. He testified from his observation that his personal opinion was that the quality of the grass was probably the result of low pH, but that only a soil test would scientifically establish the cause. Thus, it is apparent that he expressed only a personal opinion based upon his observations and qualified that by saying that it was not a scientific opinion, but merely a personal opinion based upon his having actually looked at the crop. The trial court did not err in allowing this evidence, and its weight was for the jury.
No other error is claimed. Therefore, the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | May 31, 1985 |
ee164e63-a01b-4353-b56c-0f2816a4e531 | Miller v. SCI Systems, Inc. | 479 So. 2d 718 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 718 (1985)
Barbara C. MILLER
v.
SCI SYSTEMS, INC., a corporation, Harvey Harkness, A.E. Sapp, Jr., and Olin B. King.
84-536.
Supreme Court of Alabama.
June 7, 1985.
Rehearing Denied November 1, 1985.
Barbara C. Miller, Huntsville, pro se.
J.R. Brooks of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
PER CURIAM.
This appeal challenges the following "Memorandum Opinion and Order of Dismissal":
*719 "The complaint alleges fraud. In fraud cases, facts constituting defendant's fraud and plaintiff's reliance must, of course, be alleged with particularity. (Rule 9(b), Ala.R.Civ.P.) While plaintiff has alleged some facts with specificity, other important elements of the tort are rather generally set out in the complaint. The facts alleged are unusual, but for purposes of this motion must be considered true. Miller claims that, before she was hired by SCI Systems, Inc. (SCI), she heard that Olin King, the Chairman of its Board of Directors, had fired an employee. She inquired of her interviewers (A.E. Sapp, Jr. and Harvey Harkness) what protection she would have if King wanted her fired. According to her, Sapp and Harkness represented to Miller that King no longer had any control over employees, and had no power to terminate employees. She claims to have left another job and accepted employment at SCI in reliance upon this representation. Thus, Miller's case fundamentally rests upon her information that King, SCI's Chairman of the Board, had no control over employees and no power to terminate employees, including Miller.1
"The statute of limitations in fraud cases expires one year after the fraud is actually discovered or should have been discovered. (Ala.Code § 6-2-3 (1975).) The statute begins to run when the plaintiff learns facts which would provoke inquiry by a person of ordinary prudence and, by simple investigation of the facts, the fraud would have been discovered. See, e.g., Sexton v. Liberty National Life Ins. Co., 405 So. 2d 18 (Ala.1981); Gonzales v. U-J Chevrolet Company, Inc., [451 So. 2d 244 (Ala.1984)]. If the face of the complaint demonstrates that discovery occurred more than one year prior to the bringing of the suit, dismissal is proper. See, Gonzales v. U-J Chevrolet Company, Inc., supra; Miller v. Mobile County Board of Health, 409 So. 2d 420 (Ala.1982). Here it does.
"This complaint was filed August 15, 1984. However, according to the complaint, King threatened, bullied, and harassed Miller on May 25, 1983. He also promised her she would be fired from her job. Thus, plaintiff has alleged that, in May 1983, King quite clearly asserted his right to control her and, if necessary, fire her.
"If the plaintiff retained any illusions regarding King's power, they were dispelled by Harkness the day after her May 25th meeting with King. Apparently having learned enough in her meeting with King to provoke inquiry, plaintiff asked Harkness about King's influence in terminating employees. Harkness told her that King probably had the power to force an officer to find some way to terminate an employee's employment. Thus, the true facts clearly were put before her, first by King and then by Harkness. Olin King indeed could control and terminate employees. At least by May 26, 1983, the fraud statute of limitations had begun to run.2
"But plaintiff learned more. On June 18, 1983, King again threatened and harassed plaintiff. He asked her to resign. He promised plaintiff she would lose her job at her first mistake. Sapp and Harkness were present during this meeting, but did not offer assistance to plaintiff or defend her in any way. Thus, without any question, on June 18th King asserted his right to control and fire Miller in her presence, and, in the presence of Sapp and Harkness. After this meeting, a person of ordinary prudence would know for certain that King could control and fire employees, including Miller, if he desired. Therefore, it is beyond serious dispute that the statute of limitations had begun to run by June 18, 1983.
"On August 16, 1983, plaintiff was fired by Harkness on orders from King. These are the very orders Harkness had told her in May 1983 King had the power to give. Moreover, in June 1983 King (in the presence of plaintiff, Harkness, and Sapp) asserted his right to give such orders. Thus she had learned more than one month before her termination that King had the power to control and terminate *720 employees. She, of course, did not know that King would exercise his control by causing her to be fired. But the fraud alleged is that King could not control or fire her. Whether he would do so is irrelevant to the fraud alleged. When she learned he could, the statute began to run.
"Plaintiff also alleges suppression of a material fact. (Ala.Code § 6-5-102 (1975).) She asserts that Sapp and Harkness were under a duty to communicate to her any change in their original representations regarding King's control over, and power to terminate, employees. King is said to have cooperated in this. The complaint, however, demonstrates ample communication, both by King and by Harkness. Far from failing to communicate, more than one year prior to suit King twice told plaintiff that she would be fired if she made a mistake. Furthermore, Harkness also told plaintiff that King had the power to force the termination of employees.
"Assuming failure to communicate, silence is actionable fraud only when there is a duty to disclose facts due to a confidential relationship or the presence of special circumstances. E.g., Holdbrooks v. Central Bank of Alabama, 435 So. 2d 1250 (Ala.1983). The plaintiff has alleged the relationship and circumstances which, she says, created such a duty. She asserts that, upon employment, a fiduciary relationship of employer-employee or principal-agent arose. But she was not the agent or employee of King, Sapp, or Harkness. Thus, she has not alleged any relationship or circumstances with respect to them which created a duty to disclose. Moreover, a principal or employer is not the fiduciary of the agent or employee.
"In summary, plaintiff's claims of misrepresentation and suppression are time-barred. Miller's claim of suppression is insufficient because of the failure to allege facts creating a duty to disclose, and, because the facts she does allege demonstrate disclosure.
"1The plaintiff does not allege breach of contract, apparently because she was an employee at will. See e.g., Kitsos v. Mobile Gas Service Corp., 431 So. 2d 1150 (Ala.1983)."
"2 Miller claims she had no facts until she was actually fired on August 16, 1983. But the issue is not whether King in fact would fire her. Rather, the misrepresentation was that King lacked the power to do so. (See the text at footnote 1, supra.) Therefore, the statute began to run when she learned that he, indeed, could control and terminate employees. If plaintiff were injured, it was because she left another employer and accepted employment with SCI in reliance upon the alleged representation. Termination of employment by SCI would not be an element of her lawsuit."
We adopt the opinion of the trial court as the opinion of this Court.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. | June 7, 1985 |
013754bd-ed0a-4c35-99fe-b73135248e41 | Lewis v. Fowler | 479 So. 2d 725 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 725 (1985)
Marcelle LEWIS
v.
Everette FOWLER.
84-375.
Supreme Court of Alabama.
November 1, 1985.
William H. Atkinson of Fite, Davis, Atkinson & Bentley, Hamilton, for appellant.
Bill Fite, Hamilton, for appellee.
HOUSTON, Justice.
This is an action in conversion. From a judgment entered pursuant to a jury verdict which awarded the plaintiff compensatory and punitive damages, the defendant *726 appeals. We reverse and render a judgment for the defendant.
The defendant contends that the trial court erred in denying her motions for directed verdict at the conclusion of the plaintiff's case and at the conclusion of all the evidence, arguing: (1) conversion is not the appropriate action for the subject matter of this case; (2) the plaintiff had no general or specific right to the property and no immediate right of possession; and (3) there was no evidence that the defendant, in her individual capacity, withheld any property belonging to the plaintiff.
The plaintiff, Everette Fowler, was employed by Boulder, Inc. The defendant, Marcelle Lewis, is the secretary-treasurer of Boulder. Garnishments were served on Boulder for debts of Fowler to the Department of Revenue of the State of Alabama and the Department of Industrial Relations, Unemployment Compensation Agency of the State of Alabama (U.C.). A portion of Fowler's wages were withheld by Boulder. The U.C. garnishment was paid in full; however, $700.21, the amount owed by Fowler to the Department of Revenue, was never paid and Boulder is now in Chapter 7 Bankruptcy. The complaint alleged that the defendant "converted to her own use $700.21 which said money belonged to the plaintiff."
Is conversion an appropriate action for an employee to recover a sum of money withheld by an employer from the employee's wages in response to a garnishment filed against the employer?
"`[T]rover lies for the conversion of "ear marked" money or specific money capable of identification, e.g., money in a bag or coins or notes which have been entrusted to defendant's care.'" Hunnicutt v. Higginbotham, 138 Ala. 472, at 475, 35 So. 469, at 470 (1903) (quoting from 21 Enc.Pl. & Prac., 1020, 1021). See also Moody v. Keener, 7 Port. 218 (Ala.1838), and Humana of Alabama, Inc. v. Rice, 380 So. 2d 862 (Ala.Civ.App.1979), cert. denied, 380 So. 2d 865 (Ala.1980).
Money in any form is generally regarded and treated as property, and it is well settled that an action will lie for the conversion thereof, where there is an obligation to keep intact and deliver the specific money in question, and where such money can be identified. Moody v. Keener, supra, (money sealed up in a particular letter); Hunnicutt v. Higginbotham, supra, ($180 in $20 gold pieces and $102 in paper money which was "wrapped up to itself" and placed in a safe). In England, it was first held that money could not be converted so as to support an action in trover unless it was in a "bag or chest." Holiday v. Hicks, 78 Eng.Rep. 878, 900 (1599).
The requirement that there be "earmarked money or specific money capable of identification" before there can be a conversion has been complicated as a result of the evolution of our economic system.
Now, in conversion cases, the courts are not confronted so much with a particular piece of money, i.e., a coin or a bill, but with identified or segregated sources from which money has come or types of accounts into which money has been deposited.
Money paid by an insurance company to a hospital which had been assigned to the hospital by the plaintiff has been determined as a matter of law not to be specific property which would support an action of conversion. Humana of Alabama, Inc. v. Rice, supra. Shares in a "Ready Assets Trust Account" which must be redeemed for cash and on which checks can be written have been held to be sufficiently identifiable to support an action in conversion. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 732 F.2d 859 (11th Cir.1984) (citing Alabama law).
Section 7 of the Annotation, "Nature of property or rights other than tangible chattels which may be subject to conversion," 44 A.L.R.2d 927 (1926), lists numerous cases in which attempts have been made to recover for the conversion of money.
In this case, the Court is being asked to determine whether money which was withheld from wages of an employee by an *727 employer in response to a garnishment filed against the employer by a creditor of the employee is specific property which will support an action in conversion. Clearly, there is no identifiable coin or bill, and nothing that has been sealed up in a particular letter, "wrapped up to itself," or placed in a bag or chest. There is no evidence that this money was placed in a special account. It is merely money which was not paid to an employee or to the creditor of an employee, but was withheld from an employee's wages in response to a garnishment.
When there is no obligation to return the identical money, but only a relationship of debtor or creditor, an action for conversion of funds representing the indebtedness will not lie against the debtor. Lyxell v. Vautrin, 604 F.2d 18 (5th Cir. 1979). In the present case, the plaintiff could clearly have recovered sums withheld under the theory of assumpsit or on account. This Court will not extend the definition of "specific money capable of identification" to money which was withheld from wages of an employee by an employer in response to a garnishment. Therefore, the trial court erred in denying the defendant's motions for directed verdict at the conclusion of the plaintiff's case and at the conclusion of all the evidence, because conversion is not the appropriate action for the subject matter of this case. Having decided that the case should be reversed and judgment rendered for the defendant, the Court need not write to the other two points raised by the defendant.
REVERSED AND RENDERED.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur. | November 1, 1985 |
1999048e-d0f9-43d5-ab76-5427b6ea290f | Brown v. Seaboard Coast Line R. Co. | 473 So. 2d 1022 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1022 (1985)
Michael G. BROWN
v.
SEABOARD COAST LINE RAILROAD COMPANY.
84-5.
Supreme Court of Alabama.
June 7, 1985.
Rehearing Denied July 26, 1985.
*1023 Samuel Maples of Topazi, Morton & Maples, Birmingham, for appellant.
L. Vastine Stabler, Jr., Michael C. Quillen and Kenneth D. Davis of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.
FAULKNER, Justice.
This is an appeal from a personal injury action under the Federal Employer's Liability Act (FELA).
Plaintiff, Michael G. Brown, brought this action against Seaboard, alleging that he was injured on June 14, 1979, as a result of Seaboard's negligence. Seaboard denied all allegations set forth in the complaint and raised the affirmative defense of contributory negligence.
The facts indicate that Brown was employed as a trackman with Seaboard in Lakeland, Florida. On June 14, 1979, Brown's supervisor, Jack Newsome, came to the worksite in a company pickup truck. Newsome got out of the truck to speak with the crew. The vehicle began rolling backwards and Brown apparently attempted to halt the moving vehicle. Brown was ultimately pinned between the pick-up truck and another railroad truck.
The extent of injury to Brown as a result of the accident was the subject of much controversy at trial. Conflicting medical evidence was presented as to whether the injuries were permanent and/or debilitating. Brown claimed that he suffered a severe groin injury and permanent damage to his back which subsequently required him to undergo disc surgery. Seaboard, on the other hand, argued that the medical evidence indicated that Brown had not suffered severe or permanent injuries and that he was fully able to seek gainful employment.
The jury heard the controverted evidence and returned a verdict in favor of Brown for $12,000.00. After his motion for new trial was denied, Brown appealed.
Initially, Brown contends that the trial court committed reversible error by excluding evidence of a statement made at a Seaboard safety meeting.
Prior to trial, Seaboard filed a motion in limine requesting an order directing Brown's attorneys to refrain from making statements or eliciting testimony regarding any statements made by an agent, officer, or employee of Seaboard at any safety meeting regarding the cause or reason for the accident which allegedly resulted in Brown's injuries.
The trial judge granted the motion in limine, but indicated that the testimony might later be admissible if it appeared during the trial that the evidence was material.
In order to encourage the court to change its previous ruling, Brown's attorney made an offer of proof during trial, by questioning a co-employee named Robert Fuller. The pertinent portions of the testimony are set forth as follows:
Brown argues that the exclusion of this evidence precluded him from fully developing his theory of negligence against Seaboard and prevented the jury from considering the condition of the brakes and the reasonableness of inspection efforts as indicia of the degree of Seaboard's negligence.
Since this action was brought pursuant to the Federal Employers' Liability Act, the doctrine of comparative negligence rather than contributory negligence is the applicable law. Rogers v. Chicago & Northwestern Transp. Co., 59 Ill.App.3d *1024 911, 16 Ill.Dec. 845, 375 N.E.2d 952 (1978). Under 45 U.S.C. § 53, contributory negligence does not bar the injured worker's recovery, but may diminish the award in proportion to the fault attributable to the plaintiff. Hval v. Southern Pacific Transp. Co., 39 Or.App. 479, 592 P.2d 1046 (1979). The jury is entitled to consider all of the evidence of negligence of either party and "to fix the quantity and quality of that negligence in its relation to the sum total of the negligence of both parties." Sears v. Southern Pacific Co., 313 F.2d 498, 502 (9th Cir.1963).
Brown argues that since the excluded testimony was crucial to prove the quantum of Seaboard's negligence, the jury's verdict was clearly affected by the trial court's adverse ruling on its admissibility.
Without going into a discussion on the admissibility of the evidence, we can say that we are not persuaded that its exclusion constituted prejudicial error. Rule 45, A.R.A.P. In the instant case, any error, if at all, in the trial court's exclusion of Robert Fuller's testimony was harmless, since all of the evidence contained therein was otherwise admitted. Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983).
Mr. Newsome testified as an adverse witness concerning the adjustment of the brakes on the truck:
Additionally, Mann Allen, the assistant roadmaster at Seaboard, testified that the brakes on the pick-up truck were adjusted two to three weeks after the accident:
Clearly, the jury heard evidence that Newsome did not check the brakes on the day of the accident, and that the brakes were subsequently adjusted. Accordingly, the evidence excluded by the granting of the motion in limine and disclosed by the offer of proof, would not have established any additional acts of negligence on the part of Seaboard or any greater degree of negligence, so as to justify our finding that Brown was prejudiced.
Brown's second issue is whether the trial court erred in denying a new trial to plaintiff because of the inadequacy of the verdict.
The general rule is that a jury verdict is presumed correct and will not be set aside on grounds of excessiveness or inadequacy unless the amount is so excessive or inadequate as to affirmatively indicate that the verdict was the result of passion, bias, prejudice, or improper motive. Spears v. Bishop, 339 So. 2d 75 (Ala.Civ.App.1976).
In FELA cases, so long as there is an evidentiary basis to support the jury's verdict, the jury is free to determine which of the conflicting evidence is more credible. Dennis v. Denver & R.G. Western R. Co., 375 U.S. 208, 84 S. Ct. 291, 11 L. Ed. 2d 256 (1963).
In the instant case, there was sufficient evidence from which the jury could have found that Brown's injuries were not severe or permanent. The medical evidence in this case was in conflict. There was a great degree of dispute as to the extent and the nature of injury to Brown as a result of the accident. After reviewing all of the evidence, we cannot conclude that the verdict was wrong or unjust.
Accordingly, the judgment below is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | June 7, 1985 |
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