id
stringlengths 36
36
| title
stringlengths 1
243k
| citation
stringlengths 3
718
| docket_number
stringlengths 1
304
⌀ | state
stringclasses 24
values | issuer
stringclasses 24
values | document
stringlengths 0
1.94M
| date
stringlengths 3
18
|
|---|---|---|---|---|---|---|---|
12998f0f-b7e0-4637-a519-66227cae58b0 | Harrison v. Wientjes | 466 So. 2d 125 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 125 (1985)
Donald H. HARRISON
v.
Norbert WIENTJES.
83-1360.
Supreme Court of Alabama.
February 22, 1985.
Rehearing Denied March 22, 1985.
Philip H. Butler of Robison & Belser, Montgomery, for appellant.
Perry O. Hooper and Thomas T. Gallion III, of Hooper, Gallion & Wilkerson, Montgomery, for appellee.
JONES, Justice.
This is an appeal from a judgment in favor of Plaintiff in a civil damage suit. We address each of three alleged evidentiary errors separately and set out the necessary facts in our discussion of each issue.
Appellant's/Defendant's first argument is that the trial court erred in allowing Plaintiff to introduce evidence after the evidence portion of the trial was closed. Defendant objected to Plaintiff's reference to a mortality table in his argument because, according to Defendant, the table had not been timely introduced into evidence. Plaintiff responded that the table had been introduced before trial resumed that morning in an in-chambers meeting between the judge and counsel representing both parties. The judge agreed with Plaintiff's perception of what had transpired *126 earlier. Nevertheless, at this time Plaintiff offered, and the Court admitted, the mortality table into evidence.
We find the following exchange in the record:
We recognize that the judge's statement, "I will let them in," is subject to two interpretations. It could mean that the judge agreed to admit the mortality tables into evidence at some future time, presumably in open court. On the other hand, the judge's statement could be interpreted to mean that he admitted them into evidence at that moment, in which case his use of the word "will" would have been in its permissive sense, rather than in its time sense. We feel that he used the word "will" in a permissive sense, and that his usage of "will" did not refer to some future time. Indeed, this was the perception of everyone present at the in-chambers meeting (including the court reporter), except the Defendant's counsel. We find, therefore, that the mortality tables were introduced properly before the close of the evidence.
In reference to the introduction of the mortality tables, however, the Defendant further argues that it is error to introduce documentary evidence outside the presence of the jury. To be sure, with certain exceptions,[1] "[i]n all trials the testimony of witnesses shall be taken orally in open court." A.R.Civ.P. 43(a). There is, however, no such explicit rule for the introduction of documentary evidence, and we see no reason why there should be.
Rule 43(a) was enacted to correct the "abuses of taking testimony by deposition in the historic equity practice." 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2407 (1971). To require that witnesses testify in open court prevents the court from receiving or considering "anything in confidence or secret from the parties or their Counsel" and permits "fair and complete examination and cross-examination." G. McLeod, Trial Practice and Procedure in Alabama 254 (1983).
Thus, the Rule 43(a) directive that all witnesses' testimony is to be taken in open court is primarily to insure that the parties have notice of all proceedings. It only peripherally, if at all, concerns the fact that the jury is or is not present. Therefore, we hold that an in-chambers introduction of documentary evidence, with all parties' counsel present, does not violate the spirit of Rule 43(a). Defendant's/Appellant's argument to this effect is without merit.
Defendant next argues that the trial court improperly allowed a physician to base his testimony upon excerpts from a medical treatise. In the instant case, Dr. Pelat, a family practitioner, supported parts of his testimony by citing a medical treatise *127 entitled Hollander's Arthritis and Allied Conditions.[2] Admittedly, the treatise was never offered or introduced into evidence. Defendant argues that unless a medical treatise is introduced into evidence it cannot be the basis for an expert physician's testimony.
Alabama has a liberal learned treatise exception to the hearsay rule in that such treatises may actually be admitted into evidence during direct examination. See C. Gamble, McElroy's Alabama Evidence § 248.01 (3d ed. 1977). Defendant seems to argue that because Alabama goes further than most jurisdictions and allows the actual introduction into evidence of a learned treatise, the use of such treatises to any lesser degree, namely, as a foundation of the expert's testimony, is precluded. We fail to see the logic of, or the necessity for, such a rule. It was the doctor's expert opinion and not the learned treatise that was proffered into evidence.
Whether or not the treatise is introduced, the defendant still has the option and protection of using the treatise on cross-examination to impeach or discredit the expert's testimony.[3]Metropolitan Life Insurance Co. v. Nichols, 393 So. 2d 966, 968 (Ala.1981). If he deems it tactically advantageous, the defendant may even introduce on cross-examination a treatise relied on by an expert and attempt to impeach or discredit its authoritativeness. With these protective options available to the Defendant, we do not see how he was in any way prejudiced by the nonintroduction of the learned treatise. He neither gained nor lost anything by his opponent's decision to use the treatise but not introduce it. Therefore, we find that, under the circumstances, the trial court did not commit reversible error by permitting the use of a nonintroduced learned treatise by an expert.
Defendant's third assignment of error is that the trial judge allowed Plaintiff's expert witnesses to testify as to the ultimate issue of the case: whether Plaintiff's automobile accident caused his arthritic pain and disability. In Byars v. Mixon, 292 Ala. 661, 668, 299 So. 2d 262, 268 (1974), we held that "[t]he fact that a question propounded to an expert witness will elicit an opinion from him in practical affirmation or disaffirmation of a material issue in a case will not suffice to render the question improper." See, also, Crawford Coal Co. v. Stephens, 382 So. 2d 536 (Ala. 1980) (engineer-geologist's opinion that improper blasting techniques caused house damage); see, generally, McElroy's, supra, at § 127.01(5) (stating that the modern trend is "in the direction of permitting experts to give their opinions upon ultimate issues whose final determination rests with the jury"). Therefore, we find no reversible error in the testimony of these experts that Plaintiff's automobile accident caused his pain and suffering.
We have carefully reviewed the other evidentiary issues presented and find they are without merit.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.
[1] See, e.g., A.R.Civ.P. 32 (depositions), and A.R. Civ.P. 44 (official records).
[2] The Plaintiff properly qualified the physician as an expert and properly authenticated the treatise.
[3] Indeed, in the instant case, the Defendant did question the expert on voir dire in reference to the authoritativeness of that part of his testimony based on the medical treatise. | February 22, 1985 |
615be30c-fd16-4656-9d5b-5e763796153d | Hill Air of Gadsden, Inc. v. City of Gadsden | 467 So. 2d 230 | N/A | Alabama | Alabama Supreme Court | 467 So. 2d 230 (1985)
HILL AIR OF GADSDEN, INC.
v.
The CITY OF GADSDEN, a municipal corporation.
83-1095.
Supreme Court of Alabama.
March 8, 1985.
Rowan S. Bone and Edward Cunningham, Gadsden, for appellant.
Edward S. Allen and M. Stanford Blanton of Balch, Bingham, Baker, Ward, *231 Smith, Bowman & Thaggard, Birmingham, and Roger Kirby, Gadsden, for appellee.
BEATTY, Justice.
Appeal by defendant, Hill Air of Gadsden, Inc. (Hill), from summary judgment in favor of plaintiff, City of Gadsden (Gadsden), in the latter's unlawful detainer action. We reverse and remand.
The action was an outgrowth of a written lease agreement between the parties under which Hill agreed to operate a "fixed base operator facility" on property located at Gadsden's municipal airport. Paragraph 23(d) of the lease provides:
The lease contains a termination clause giving Gadsden the right to terminate the lease "by giving Lessee sixty (60) days advance notice upon or after the happening and during the continuance of":
On July 29, 1983, Gadsden notified Hill that the lease would be terminated if, within 60 days, Hill was not in compliance with paragraph 23(d). On November 4, 1983, Gadsden notified Hill that the lease was terminated on the grounds, among others, that:
On January 18, 1984, Gadsden brought an action of unlawful detainer, Code of 1975, § 6-6-330, against Hill in the Etowah County District Court, which, following a hearing, entered an order giving Gadsden possession of the premises. Hill filed a notice of appeal to circuit court and filed a supersedeas bond, which was approved.
In due course, Gadsden moved for summary judgment. Hill responded and counterclaimed for damages.
Gadsden's summary judgment motion was based upon the transcript of the proceedings in the district court. The circuit court granted the motion for summary judgment against Hill, prefacing its order with these words:
This appeal ensued.
On appeal, Hill argues that paragraph 23(d) is ambiguous, and gives this interpretation of it: (1) Hill was to supply four types of service for the public; (2) Hill was to have at least four licensed aircraft for these services; and (3) Hill was to have sufficient pilots to perform these services. It is undisputed that Hill owned four aircraft; however, Hill contends, paragraph 23(d) does not require that each of the four aircraft be individually licensed to provide all four of the specified services.
Gadsden, on the other hand, maintains that paragraph 23(d) is not ambiguous, and argues that the requirement of "four aircraft, licensed by the FAA" refers to "for *232 these services," concluding with this argument:
At the outset, we point out what we have said previously regarding ambiguity in the terms of a contract, where we wrote of an insurance policy:
"It was said in Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So. 2d 698 [1953]:
(Emphasis added.) Aetna Life Ins. Co. v. Hare, 47 Ala.App. 478, 486-487, 256 So. 2d 904, 911 (1972).
First of all, we cannot agree with Gadsden that paragraph 23(d) is without ambiguity. Gadsden's interpretation, i.e., that each of the four aircraft be licensed to perform flight instruction, charter service, air-taxi service and rental service, is only one of the reasonable interpretations. The language of the paragraph can also accommodate a different requirement, i.e., that at least one aircraft, or a combination of the aircraft fewer than four, be licensed to perform each of the services. The clause "[a]t least one of the four aircraft shall be twin engine and instrument equipped" likewise does not necessarily express a requirement that such twin-engine aircraft be licensed to perform all of the four services, however desirable such an object might be.
Moreover, it is unclear whether this clause requires Hill to maintain at least one twin-engine aircraft which is also instrument equipped or whether Hill is to maintain at least one twin-engine aircraft and at least one instrument equipped aircraft. It appears from the record that Hill did in fact have a twin-engine aircraft, although there is no indication whether the aircraft was or was not instrument equipped. It *233 also appears from the record that Hill may have had a single engine aircraft that was instrument equipped, although this aircraft was not instrument certified.
Furthermore, there is also a lack of clarity regarding the meaning of the term "licensed by the FAA." Hill argues that this could refer to an airworthiness certificate. Gadsden disputes this position, pointing out that paragraph 23(f), a different subparagraph, refers to the subject of an airworthiness certificate. But paragraph 23(f) refers not only to having such a certificate, but also to a requirement that it be posted in a conspicuous place. Thus, the presence of 23(f) on the subject of an airworthiness certificate may be a redundancy, or, as Gadsden argues, a different requirement that the FAA have licensed each airplane for air-taxi and air-charter service, as, according to Gadsden, FAA regulations require. Or, the clause as written may require, as between these parties, that the licensing requirement extend to all four aircraft, even if the FAA requires licensing only for those to be used for air-taxi and air-charter service.
While we recognize that "[t]he mere fact that adverse parties contend for different constructions [of a particular contract provision] does not of itself force the conclusion that the disputed language is ambiguous," Antram v. Stuyvesant Life Ins. Co., 291 Ala. 716, 720, 287 So. 2d 837, 840 (1973), quoted in Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala.1985), nevertheless, this Court has examined closely the disputed provisions of the lease and concludes that more than one meaning may be attached to these provisions. Consequently, we find that an ambiguity exists.
Second, although Gadsden asserts that there is no need for resort to extrinsic evidence, we conclude that resolution of the ambiguity we find to exist with respect to the FAA licensing requirement was a question of fact where Gadsden submitted extrinsic evidence in support of its motion for summary judgment. See Aetna Life Ins. Co. v. Hare, supra. Accordingly, the summary judgment was improperly granted. That judgment is due to be, and it hereby is, reversed, and this cause is remanded for further proceedings. It is so ordered.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, EMBRY and ADAMS, JJ., concur.
JONES, ALMON and SHORES, JJ., concur in the result.
JONES, Justice (concurring in the result).
I concur in the result to reverse the trial court's summary judgment. I agree with the holding of the opinion with respect to each addressed ambiguity except the last sentence of paragraph 23(d). While hindsight suggests that more precise language could have been used, it seems reasonably clear that this sentence, when used in the context of the entire paragraph, requires that the twin-engine aircraft be instrument equipped. No reasonable interpretation, in my opinion, can relate the term "instrument equipped" to any of the other three aircraft.
Nevertheless, I agree to reverse because I am not sure the term "instrument equipped," as used in the lease agreement, is the same thing as the term used in the trial court's order, "instrument rated." In other words, I would hold that if Hill, as a matter of fact, does not have an instrument-equipped twin-engine aircraft, it is in violation of the lease agreement as a matter of law.
ALMON and SHORES, JJ., concur. | March 8, 1985 |
c1924ac4-e4fa-489d-886e-e24ae58b3d1c | Benton v. Ala. Bd. of Medical Examiners | 467 So. 2d 234 | N/A | Alabama | Alabama Supreme Court | 467 So. 2d 234 (1985)
Mellanie C. BENTON, M.D.
v.
ALABAMA BOARD OF MEDICAL EXAMINERS.
83-54.
Supreme Court of Alabama.
March 15, 1985.
*235 Charles P. Hollifield, Hollifield & Hollifield, Montgomery, for appellant.
Mark C. McDonald, Montgomery, for appellee.
EMBRY, Justice.
This is an appeal from a judgment of the Montgomery County Circuit Court upholding an order of the Alabama State Board of Medical Examiners (hereafter the Board) denying Dr. Benton's request for a full and unrestricted Alabama controlled substance certificate. We reverse and remand with directions.
In 1958, Dr. Benton admitted herself to a hospital, for the ostensible purpose of being treated for a narcotics addiction. That same year, Dr. Benton's controlled substance certificate was restricted by the Board to exclude Class II and Class III controlled substances from her prescription rights. This action was taken without notice or an opportunity to be heard being afforded Dr. Benton.
Dr. Benton took no action to contest the Board's order until 1978. At that time she appeared before the Board for a hearing to determine whether her certificate should continue to be restricted. At that hearing, Dr. Benton was neither represented by counsel nor allowed to present evidence on her behalf.
In 1981, Dr. Benton again requested an unrestricted certificate. It was at this hearing that Dr. Benton first learned of the nature of the charges against her. Additionally, she was provided with a narrative summary of the specific allegations relied upon by the Board for its earlier action. While the Board extended Dr. Benton's prescription rights to include Class III drugs, her Class II prescription rights continued to be restricted.
In 1983, Benton again requested an unrestricted certificate. Again, the Board denied her request. On appeal to the Circuit Court of Montgomery County, that court ruled: "[T]his court cannot find from the record or from the testimony here presented that the order of the Board of Medical *236 Examiners was arbitrary or unreasonable." Dr. Benton appeals.
At the outset, it is apparent from a reading of the record and oral argument that considerable confusion exists concerning the appropriate standard of review in an appeal from a ruling of the Alabama State Board of Medical Examiners restricting the prescribing rights of licensed physicians. This is due largely to the existence of two seemingly contradictory enactments, the Alabama Uniform Controlled Substances Act, Code 1975, § 20-2-1 et seq. and the Alabama Administrative Procedure Act. Code 1975, § 41-22-1 et seq. We take this opportunity to clarify the interrelationship of the two enactments, with particular emphasis on judicial review of the Board's rulings.
The Administrative Procedure Act, enacted in 1981, was intended to provide minimal due process procedural requirements for all state agencies when taking actions affecting the rights and duties of the public. Code 1975, § 41-22-2(a). Nothing in the act, however, relieves agencies of the duty to comply with additional procedural requirements otherwise established by law. Id.
Code 1975, § 41-22-20, sets out a process by which an aggrieved party may seek judicial review, in circuit court, of an agency's final decision or order. Of particular import in the instant case is subsection (k), which provides in pertinent part:
Code 1975, § 41-22-20(k). In other words, unless otherwise authorized by statute, the final rulings of a state agency must be reviewed with an attendant presumption of correctness.
In this instance, another statute, the Alabama Uniform Controlled Substances Act, takes precedence. It authorizes a trial de novo in an appeal from a final ruling of the Alabama State Board of Medical Examiners. Code 1975, § 20-2-53, reads in pertinent part:
We find that although this section is somewhat clumsily phrased, the clear intention of the legislature is to provide for a de novo hearing in its truest sense. The language of Code 1975, § 20-2-53, mandates the filing of the record and transcript of the Board's hearing in Montgomery County Circuit Court. However, in stark contrast to the Alabama Administrative Procedure Act, § 20-2-53 specifically authorizes the admission of any new or additional evidence. Furthermore, it stresses that original findings of fact and law are to be made within the trial court's discretion. Lastly, *237 § 3 of this act definitely states that the act shall take precedence over the provisions of Code 1975, § 41-22-1 et seq. See Code Commissioner's Note, Code 1975, § 20-2-53.
Katz v. Alabama State Board of Medical Examiners, 351 So. 2d 890 (Ala.1977), enunciated the criteria upon which a trial court should reach its de novo determinations in reviewing a medical licensing board ruling such as this one:
With the foregoing in mind, we find from a review of the record that the trial court erred on two grounds. First, the trial court's order stating that the Board's ruling was not "arbitrary or unreasonable" reveals that the trial court failed to hold a de novo review as required by Code 1975, § 20-2-53, but rather, merely chose to search the Board's decision for any abuse of discretion. The trial court's failure to apply the appropriate standard of review, in this instance, warrants reversal. The right to practice medicine is a property right which may be denied only if the denial is consonant with due process. Katz, 351 So. 2d at 892. Due process requires, among other things, a hearing consistent with the essentials of a fair trial, which include holding a de novo hearing when required by law. Medical Services Administration v. Duke, 378 So. 2d 685, 686 (Ala.1979); Katz, 351 So. 2d at 892.
Second, we find that in view of the evidence presented, the trial court's conclusions are not supported by the record and are clearly erroneous. Admittedly, Dr. Benton testified that she had admitted herself to the United States Public Health Hospital in Kentucky for the purpose of treating a narcotics addiction some twenty-five years ago. The obvious inference from this fact, a narcotics addiction, was supported by a record of Dr. Benton's abnormally high schedule II drug orders during that same period of time. Nevertheless, the record is completely devoid of any other relevant evidence to support the conclusion that Dr. Benton's prescription rights should continue to be restricted twenty-five years later.
Under the Katz criteria, the relevant inquiries before the trial court were: (1) whether there is now a likelihood of Dr. Benton's violating the provisions of Code 1975, § 34-24-360; (2) whether twenty-five years is a sufficient penalty for any offense Dr. Benton may have committed; (3) whether Dr. Benton is presently a competent physician. Dr. Benton met her burden of proof as to each of these inquiries.
Regarding the first inquiry, Dr. Hugh C. MacGuire testified that he had known Dr. Benton for over thirty years in a professional capacity and had been aware of her schedule II restriction. Nevertheless, Dr. MacGuire noted that he had neither witnessed nor heard any reports of Dr. Benton's administering narcotics to herself or her patients. He concluded that Dr. Benton would be quite capable of properly dispensing schedule II narcotics.
Dr. Benton also introduced letters of recommendation from Doctors James Kirksey, Jr., and M.T. Gordon. Both physicians praised Dr. Benton's abilities and professional conduct.
Finally, an investigation conducted by the Board itself in 1974 concluded that "agents found nothing unusual in the prescribing habits of Dr. Benton." We note additionally that Dr. Benton has been empowered to dispense schedule III narcotics since 1981 with no apparent difficulties.
The Board failed to present any evidence suggesting a likelihood of continued *238 violations of Code 1975, § 34-24-360, on the part of Dr. Benton.
The second inquiry under the Katz criteria is whether the period of time an applicant has not been permitted to practice is sufficient penalty for the past offense. While the factual allegations raised by the Board are clear, namely that Dr. Benton has had a drug addiction, the Board has failed to articulate with specificity any offense which Dr. Benton is alleged to have committed. Because no party has challenged this fact, we must assume the offense warranting continued suspension of Dr. Benton's prescription rights is a violation of Code 1975, § 20-2-54(a)(5). This section reads in part:
We note on this point that the Board has never offered proof, at any time, that Dr. Benton actually dispensed narcotics to her patients other than her abnormally large orders of schedule II drugs some twenty-five years ago. Furthermore, the evidence is unrefuted that Dr. Benton has had no personal troubles with narcotics in twenty-five years, and has not misprescribed any drugs, schedule II or otherwise, in twenty-five years. We must conclude that in light of such evidence, twenty-five years is more than a sufficient penalty for her past offense. Any further restriction of Dr. Benton's prescription rights would be unduly harsh and oppressive.
The evidence presented regarding Dr. Benton's competency was that she graduated from the Johns Hopkins Medical School and has continued to maintain her continuing education credits. Dr. Benton served as chief medical officer at Gunter Air Force Station from 1973 to 1982. Dr. MacGuire testified that Benton had filled in for him in his office on a number of occasions and was quite a capable physician.
To refute this evidence, the Board proved that Benton had not practiced primary patient care in over ten years, but had merely been giving physicals at Gunter Air Force Station. No further relevant evidence was proffered by the Board proving any single act of incompetence or that Benton had failed to keep up with the changes that have been made in the practice of medicine that are now state of the art.
The Board posed several questions to Dr. Benton regarding why she would ever need schedule II prescription rights, suggesting that other scheduled drugs could adequately be substituted. This line of questioning was totally immaterial to the issue before the Board. The issue before the Board and trial court was not why Dr. Benton now needed her property rights, but rather, why she was now being denied them.
Ironically, Dr. Benton's answers to this line of questioning worked in her favor, exemplifying a professional, competent, and current knowledge of the proper use and substitutes for various schedules of drugs.
Based on the foregoing, we hold that the trial court abused its discretion by applying an inappropriate standard of review and reaching erroneous conclusions of fact and law wholly unsupported by the record. Accordingly, the order of the trial *239 court is reversed and the cause remanded with directions to enter an order requiring the Alabama Board of Medical Examiners to grant Dr. Benton an unrestricted Alabama controlled substance certificate.
REVERSED AND REMANDED WITH DIRECTIONS.
FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., concurs in part and dissents in part.
MADDOX, J., recused.
TORBERT, Chief Justice (concurring in part and dissenting in part).
I concur in that part of the opinion which reverses the judgment below, but dissent as to that part of the opinion that directs the trial court to order the Alabama Board of Medical Examiners to grant Dr. Benton the certificate she seeks.
Code 1975, § 20-2-53, states that "a complete transcript of the record upon which the order complained of was entered" shall be filed with the trial court but that the "case shall, however, be tried and heard by the court de novo with any party being permitted to introduce new or additional evidence." In Ball v. Jones, 272 Ala. 305, 132 So. 2d 120 (1961), this Court defined the requirements of de novo review:
Section 20-2-53 does not require a "pure" de novo hearing. The trial court can examine the transcript of the record, hear new or additional evidence, and then make its own findings of fact. It is a de novo hearing in that the trial court is in no way bound by the Board's prior findings, but procedurally it differs from a pure de novo hearing in that the trial court need not start from scratch.
The trial court's order indicates that the transcript of the record was reviewed, as well as evidence presented at trial. However, it goes on to state that the Board's order was not "arbitrary or unreasonable." This statement indicates that the trial court did not make an independent finding of facts. While it may well be true that the trial court did make an independent finding of fact and that by the use of the words "arbitrary or unreasonable" the trial court meant to say that the Board's findings were correct there is enough doubt as to the standard of review employed to warrant in the interest of fairness and justice a new trial.
While the opinion of the majority states that this case is "reversed and remanded with directions," the effect of that opinion is to render a judgment awarding Dr. Benton the unrestricted certificate she seeks. The trial court, having an opportunity to hear oral testimony and judge the credibility and demeanor of the various witnesses, is in a much better position to make critical findings of fact than is this Court, which must base its conclusions solely upon the contents of a cold and impersonal record.
Therefore, it is my opinion that this case should be remanded not with directions to the Board of Medical Examiners to grant Dr. Benton an unrestricted Alabama controlled substances certificate, but to the *240 trial court for a factual determination of whether she is so entitled. | March 15, 1985 |
48274f80-a415-4c63-a3a8-04eb74ef8daf | Logan v. Sears, Roebuck & Co. | 466 So. 2d 121 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 121 (1985)
Robert LOGAN
v.
SEARS, ROEBUCK & CO.
83-1236.
Supreme Court of Alabama.
February 22, 1985.
*122 John F. Kizer, Jr., Birmingham, for appellant.
Lyman H. Harris of Harris, Evans & Downs, Birmingham, for appellee.
MADDOX, Justice.
Robert Logan operates a beauty salon in Birmingham. On May 11, 1982, an employee of Sears, Roebuck and Company phoned Logan at his place of business to inquire whether he had made his monthly charge account payment. While looking for his checkbook, Logan heard the Sears employee tell someone on her end of the line, "This guy is as queer as a three-dollar bill. He owns a beauty salon, and he just told me that if you'll hold the line I will check my checkbook." No one on Logan's end of the conversation, other than Logan, heard the statement.
Logan brought suit against Sears, seeking damages based on the torts of outrage and invasion of privacy. Sears moved for summary judgment as to both causes of action. The trial court granted Sear's motion, holding that although the statement of the Sears employee was insulting, it was not sufficient to support a claim of outrage or invasion of privacy. Logan appeals here.
It is undisputed that the Sears employee indeed made the statement complained of by Logan. It is further undisputed that Logan is, in fact, a homosexual. Thus, the only issue presented is whether the trial court erred in granting summary judgment. We find that it did not.
The tort of outrage, as proposed in Restatement (Second) of Torts § 46 (1948), and adopted by this Court in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980), provides that:
While Inmon, supra, did recognize a cause of action in Alabama based solely upon insulting language, it did not create a cause of action which arises from every insult. As this Court stated therein, the tort of outrage "does not recognize recovery for `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' The principle applies only to unprivileged, intentional or reckless conduct of an extreme and outrageous nature, and only that which causes severe emotional distress.... The emotional distress thereunder must be so severe that no reasonable person could be expected to endure *123 it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme.... By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." (Citations omitted.) 394 So. 2d at 365.
Similarly, although Phillips v. Smalley Maintenance Services, Inc. 435 So. 2d 705 (Ala.1983), recognized an action for intrusion upon one's solitude (which is the basis for Logan's claim), that case does not stand for the proposition that there can be recovery based upon every intrusion. This Court in Phillips, adopted Restatement (Second) of Torts, § 652 (1977), which states, in pertinent part:
But in adopting that section, this Court also necessarily adopted that section's limitation on such actions. In other words, while holding that an intrusion on solitude may be actionable, this Court recognized that in order to be actionable, the intrusion must be such as would outrage a person of ordinary sensibilities or cause such a person mental suffering, shame, or humiliation. Phillips, supra, at 705.
Consequently, the dispositive questions are whether the statement of the Sears employee was such as would outrage, or cause mental suffering to, a reasonable person and whether it was within the trial court's authority to make such a determination.
This Court recognized in Inmon that a determination as to whether a statement is sufficiently objectionable to support a cause of action for outrageous conduct may be made by the trial court as a matter of law. 394 So. 2d at 368. We are of the opinion that the same may be said for a suit based on intrusion upon the solitude or seclusion of another; therefore, it was within the trial court's authority to determine if the employee's statement gave rise to a cause of action in either outrage or invasion of privacy.
In this case, the trial court concluded that the statement was not so outrageous as to support an action based on either tort. Even though the statement was an intrusion upon Logan's solitude or seclusion, we do not believe that it was so extreme or outrageous as to offend the sensibilities of an ordinary person similarly situated.
It is evident from Logan's complaint and his testimony that he does not claim that the statements made about him were defamatory or slanderous. He admits that the characterization of him as homosexual is a true characterization; he simply dislikes the use of the adjective "queer" and he was especially annoyed because the term was used on his private telephone line. In his deposition, Logan testified as follows:
We are unwilling to say that the use of the word "queer" to describe a homosexual is atrocious and intolerable in civilized society. We recognize that there are other words favored by the homosexual community in describing themselves, but the word *124 "queer" has been used for a long time by those outside that community. It has been in use longer than the term "gay," which has recently become the most frequently used term to describe homosexuals.[1]
Since Logan is admittedly a homosexual, can it be said realistically that being described as "queer" should cause him shame or humiliation? We think not. In order to create a cause of action, the conduct must be such that would cause mental suffering, shame, or humiliation to a person of ordinary sensibilities, not conduct which would be considered unacceptable merely by homosexuals. Cf. Norris v. Moskin Stores, Inc., 272 Ala. 174, 177, 132 So. 2d 321, 323 (1961).
Professor Prosser summarized the law on this issue in the following language:
Based on the above, we hold that the statement was one of those relatively trivial insults for which the law grants no relief; therefore, the trial court did not err in granting summary judgment.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] Webster's Ninth New Collegiate Dictionary (Merriam-Webster, Inc., 1983) dates "queer" to about 1812 and "gay" to 1953. | February 22, 1985 |
21175e0f-adee-4c94-a8ab-05f0a82e90dd | Chandler v. Commercial Union Ins. Co. | 467 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 467 So. 2d 244 (1985)
B. Keith CHANDLER
v.
COMMERCIAL UNION INSURANCE COMPANY.
83-1104.
Supreme Court of Alabama.
March 22, 1985.
*245 David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellants.
Danny D. Henderson of Williams, Spurrier, Moore, Rice, Henderson & Grace, Huntsville, for appellee.
BEATTY, Justice.
Appeal from a summary judgment in favor of the defendant, Commercial Union Insurance Company, Inc. (Commercial Union), in a bad-faith-refusal-to-pay case brought by plaintiff, B. Keith Chandler d/b/a Keith Chandler Construction Company. We affirm.
The present lawsuit is an outgrowth of a prior action also brought by plaintiff in which plaintiff sought to have reformation of an insurance policy issued by this defendant in order to obtain coverage on plaintiff's truck, which had sustained fire damage.
Chandler, a construction contractor, was engaged in installing water and sewer lines and doing related work in a Madison, Alabama, subdivision. He owned three trucks; however, the truck in question was the one used on this job. This truck, a 1979 Ford LNT dump truck, was purchased for $27,334.70. Plaintiff had a heavy duty rock bed installed on it, costing $54,000.00. He also had the engine and transmission rebuilt. The truck caught fire and was severely damaged while plaintiff was operating it on the job.
Prior to the fire, the plaintiff had obtained insurance coverage on a 1978 Ford F-800 dump truck from Commercial Union. After plaintiff made a claim on his fire loss, Commercial Union denied coverage. That denial led to plaintiff's first action, in which he sought a reformation of the policy and payment under the policy. Commercial Union answered and counterclaimed in that action, asking for a judgment declaring that the destroyed vehicle was not covered under the policy or, in the alternative, asserting that the truck was destroyed intentionally by Chandler himself or at his direction. The circuit court entered a decree reforming the policy to include the burned truck, and the remaining issues were tried to a jury, which awarded Chandler $25,145.00 in damages. No appeal was taken from that judgment. The damages awarded were paid into court and in due course paid to the plaintiff.
Thereafter, plaintiff initiated this present action, alleging one count in bad faith refusal to pay a lawful claim. This complaint was later amended by adding a count in fraud. We reproduce these allegations below:
Commercial Union moved for summary judgment based upon the pleadings, decree of reformation, and jury verdict and judgment in the first action, the pleadings in this second action, and a memorandum of law. Plaintiff opposed the defendant's summary judgment motion with references to the pleadings, together with the affidavit of David H. Meginniss and the deposition of Randall C. Stafford. The trial court treated the motion as directed to Count One and, after a hearing, denied the motion. Following a pretrial conference, Commercial Union filed another motion for summary judgment, stating these grounds:
This motion was also heard, after which the trial court granted summary judgment as to both counts. Plaintiff's motion to vacate the summary judgment was denied. This appeal followed.
In granting summary judgment for the defendant, the trial court did not specify its reasons. On this appeal, the parties have presented the same issues as those presented below on the motion for summary judgment. We need not examine each of these because we find that the trial court's grant of summary judgment for the defendant was proper; the claims asserted *249 by plaintiff in the second action are barred by res judicata in that the second action involved claims which could and should have been litigated in the first action.
The record in this case discloses that during the trial of the contract action plaintiff approached the trial judge (not the judge who tried the present action) concerning the propriety of filing an amendment alleging bad faith. This is shown by the trial court's affidavit:
This Court has held that a claim for bad faith is a compulsory counterclaim where an insurance company has filed an action for declaratory judgment against an insured. Safeco Ins. Co. of America v. Sims, 435 So. 2d 1219 (Ala.1983); Federated Guaranty Life Ins. Co. v. Wilkins, 435 So. 2d 10 (Ala.1983). A consideration of Sims and Wilkins leads us to conclude that plaintiff's bad faith claim should have been asserted in his first action. Granted, it appears from the affidavit above that plaintiff attempted to amend his complaint to allege bad faith, but was thwarted in his effort by the trial judge. Clearly, this was error on the part of the trial judge. See Rule 15(b), A.R.Civ.P. ("An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The court is to be liberal in granting permission to amend when justice so requires."). Cf. Wilkins, 435 So. 2d at 14 (noting that the trial court erred in striking a counterclaim for bad faith brought in the insurer's action for declaratory judgment).
It must be noted, however, that no proffer of or ruling on this amendment appears in those portions of the record from plaintiff's first action which have been made a part of the record on appeal in the present action. Thus, it appears that the issue concerning the denial of the amendment would not have been properly preserved for our review had plaintiff appealed in the first action. Plaintiff's proper course of action would have been to offer the amendment and obtain a ruling for the record, and subsequently appeal that ruling if adverse.
Under the circumstances involved in this case, the judgment for the plaintiff in the first trial became res judicata as to the *250 claim for bad faith refusal against Commercial Union. As this Court has not infrequently stated, the proper inquiry is whether the issue was actually litigated or whether it could have been litigated. Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala.1978); McGruder v. B & L Construction Co., 331 So. 2d 257 (Ala.1976); McCormick v. McCormick, 221 Ala. 606, 130 So. 226 (1930). In this case, both the breach of contract claim, which was the subject of plaintiff's first action, and the bad faith and fraud claims, which were the subjects of this second action, all arose from a single act, the refusal to pay the proceeds of the policy. Thus, there was only one cause of action, and the first judgment became a bar to the second action. Cf. Geer Brothers, Inc. v. Crump, 349 So. 2d 577 (Ala. 1977), and Sessions v. Jack Cole Company, 276 Ala. 10, 158 So. 2d 652 (1963). The trial court could not, by agreement with counsel or otherwise, abrogate the application of this rule to this case. See, e.g., Chambers County Commissioners v. Walker, 459 So. 2d 861 (Ala.1984).
This case is readily distinguishable from Chavers v. National Security Fire & Casualty Co., 456 So. 2d 293 (Ala.1984), in which this Court held that a bad faith claim brought subsequent to the conclusion of an action on the policy was not subject to summary judgment based on res judicata, where it was not clear when the plaintiff learned of the insurance company's alleged bad faith.
Plaintiff Chandler asserts that he did not become aware that he might have a claim for bad faith refusal to pay until the defendant pleaded arson as a defense. The fraud claim asserted by plaintiff also stems from defendant's defense of arson: Plaintiff has alleged that defendant impliedly represented that plaintiff's claim was not being paid because defendant had evidence that plaintiff intentionally caused the fire, that this representation was false, that defendant made the representation knowing it was false and with the intention that plaintiff and the court rely upon it, and that the defendant fraudulently created false evidence to support the false representation. As a result, plaintiff alleges, he "was forced to rely upon the misrepresentation in that the plaintiff was unable to discover the fraudulent creation of evidence in time to aver in good faith, prior to the trial, that the defendant had no `fairly debatable question' regarding coverage of the plaintiff's fire loss by the defendant's insurance policy."
Plaintiff maintains that he did not discover the fraudulent creation of evidence until he deposed Stafford, the chemist who analyzed glass fragments taken from the truck, and, further, that he could not depose Stafford until the day of trial because the defendant had made him "unavailable." That is, although Commercial Union answered the complaint and raised the defense of arson on or about March 29, 1982, plaintiff did not depose Stafford until October 4 or 5, 1982. However, the plaintiff addressed interrogatories to the defendant and received the defendant's answers on or about May 10, 1982, some five months before trial of the first case. Those answers revealed the name and address of Stafford's company, and, in fact, mentioned Stafford's name in connection with a "gas chromatograph." Plaintiff's use of interrogatories and his taking of other depositions clearly shows that plaintiff could have obtained other information regarding Stafford and also counters any notion that defendant did not make Stafford "available" until trial ensued. Nor does the record reveal that plaintiff requested a continuance upon discovering the alleged bad faith. Hence, it cannot be concluded on the record that defendant somehow shielded a bad faith claim from the plaintiff.
To the contrary, it is clear from plaintiff's own arguments that he was aware of both his bad faith claim and his fraud claim at least by the time of trial on his contract claim. Although both claims may have matured after he filed his original complaint, the amendment provisions of Rule 15(b) and (d), A.R.Civ.P., were available to him. As we pointed out above, plaintiff did indeed attempt to amend at the time of trial, *251 but failed to properly preserve and appeal the ruling of the trial court.
This case is also distinguishable from Federated Guaranty Life Ins. Co. v. Wilkins, 435 So. 2d 10 (Ala.1983). In Wilkins, the insurer filed an action for declaratory judgment and the plaintiff counterclaimed, alleging bad faith refusal to pay. This counterclaim was struck by the trial court on the motion of the insurer. The plaintiff then filed a separate action for bad faith, upon which she prevailed. On appeal, the insurer asserted that plaintiff's counterclaim, "identical in language to the present action and dismissed by the trial court, now bars her present claim on the ground of res judicata." 435 So. 2d at 14. Although this Court reversed the judgment against the insurer on the bad faith issue, we noted:
However, the insurer's declaratory judgment action in Wilkins was not tried to a conclusion. Where there has been no prior final judgment, the doctrine of res judicata cannot apply. See Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So. 2d 847 (1973). In the case presently before us, the plaintiff had a final judgment upon which he, had he properly preserved the issue, could have appealed the trial court's refusal to allow his amendment, regardless of the fact that the defendant objected to the amendment. This same final judgment, however, also now bars his action for bad faith and fraud.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX and SHORES, JJ., concur.
JONES, J., concurs in the result.
JONES, Justice (concurring in the result).
I concur in the result.
I write specially to express my concern about the apparent harshness of the result of our holding in this case. The result appears harsh because counsel in fact sought to do what we now say he had a right (indeed, what he was compelled) to do. Except for the trial court's failure to recognize a bad faith claim as a compulsory counterclaim, Appellant would not now be in this predicament. Nonetheless, I agree that his remedy was by way of appellate review of properly preserved prejudicial error. | March 22, 1985 |
33a775b8-ec4d-4a08-af3f-4a9a1be7b19a | Barber v. COVINGTON COUNTY COM'N | 466 So. 2d 945 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 945 (1985)
Roy P. BARBER and Carol Barber
v.
COVINGTON COUNTY COMMISSION, et al.
83-1306.
Supreme Court of Alabama.
March 1, 1985.
*946 Benton H. Persons of Murphy, Murphy, Persons and Bush, Andalusia, for appellants.
J. Fletcher Jones, Andalusia, for appellees.
SHORES, Justice.
Roy Barber and Carol Barber appeal from the circuit court's dismissal of their petition for a writ of mandamus. We affirm.
Roy Barber and his wife Carol Barber filed a petition for a writ of mandamus against the Covington County Commission and the individual members thereof, seeking to require the Commission to remove certain obstructions from, and prevent the further blocking of, a road leading to their property. The Commission filed a motion to dismiss the petition, stating that it failed to state a claim upon which relief could be granted. This motion was granted, and the Barbers appeal.
The Barbers alleged in the petition that the road in question has been a recognized public county road for over fifty years and provides the only access to their property. They further alleged that the road is being blocked and obstructed by Huron Anderson and that the Commission has failed to remove the obstructions, thereby denying them and the public access to their property. The Barbers also alleged that the Commission attempted to abandon the road, and they argue that, in so doing, it acted arbitrarily, capriciously, without good cause, and in violation of § 23-4-1, et seq., Ala. Code 1975.
The Barbers insist that the petition states a claim upon which relief can be granted. They argue that the Commission has general superintendence of the public roads within its jurisdiction, under § 23-1-80, Ala.Code 1975, and, pursuant to that section, has the power to reopen and maintain a public road that has been wrongfully obstructed and closed. They further argue that mandamus is proper in this case to compel the Commission to so act.
*947 The Commission contends that the exercise of its powers pursuant to § 23-1-80 is discretionary and, in the absence of an allegation of fraud, corruption, or unfair dealing in relation thereto, is not subject to judicial review. We agree.
Mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977).
Section 23-1-80, Ala.Code 1975, reads as follows:
This section confers upon the county commissions of this state the general superintendence of the public roads within their respective jurisdictions so as to render travel over the same safe and convenient. To this end, they have certain discretionary powers as enumerated in this section. In Wright v. Pickens County, 268 Ala. 50, 55, 104 So. 2d 907, 912 (1958), the Court stated:
"In the O'Rear case it is said:
In Alabama Great Southern R. Co. v. Denton, 239 Ala. 301, 305, 195 So. 218, 221 (1940), the Court stated:
In the present case, there is no allegation of fraud, corruption, or unfair dealing on the part of the Commission. In the absence of some such allegation, the Commission's exercise of the discretionary powers vested in it is not subject to judicial review by mandamus. Furthermore, mandamus is not proper where another adequate remedy exists. The obstruction of a public road, depriving the public of the use of a public convenience, is a public nuisance, and an action to abate such a nuisance may be maintained by an individual on behalf of the public, if he or she has a special interest in the road. Alabama Great Southern R. Co. v. Denton, 239 Ala. 301, 195 So. 218 (1940).
The requirements for the issuance of a writ of mandamus not having been satisfied, the petition was properly dismissed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | March 1, 1985 |
5ea40de5-3594-493d-a746-96f679a1e9c0 | Marshall Durbin Farms, Inc. v. Landers | 470 So. 2d 1098 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1098 (1985)
MARSHALL DURBIN FARMS, INC.
v.
Gurney LANDERS and Betty Landers.
83-623.
Supreme Court of Alabama.
February 22, 1985.
Rehearing Denied April 26, 1985.
*1100 C. Lee Reeves of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, and Eddie Beason of Fine & Associates, Russellville, for appellant.
W.H. Rogers, Moulton, for appellees.
FAULKNER, Justice.
This is an appeal from a fraud and breach of contract action arising out of an alleged agreement made between Marshall Durbin Farms, Inc. (hereinafter "Durbin") and Gurney and Betty Landers. The Landerses, Lawrence County chicken growers, grew chickens for Durbin for over fifteen years. Durbin supplied the chicks, and medicine and feed for them. Each set of chicks grew in the Landerses' chicken houses for about seven weeks and then were picked up by Durbin for market. Disease became a problem with the chickens grown by the Landerses and during 1981 the Landerses had a very poor growth record with their chickens.
In June 1982, Durbin's agent told the Landerses that they would not be supplied with any more chickens. In an effort to get more chickens, Mr. Landers went to see Mr. Jones and Mr. Roden in Durbin's office in Delmar, Alabama. On June 29, 1982, Durbin's representatives entered into an agreement with Mr. Landers which provided, in part, that if the Landerses would make certain improvements to their chicken houses, including tearing down chicken house # 1, and if they would perform well as growers, then Durbin would continue to supply them with chickens. The agreement provided:
Relying upon the agreement, the Landerses made the requisite renovations. Durbin thereafter supplied them with a batch of chickens on July 20, 1982. About August 23, 1982, the Landerses were informed that Durbin planned to discontinue supplying chickens to growers in Lawrence County, including them. The Landerses ultimately received one more batch of chickens, on September 30, 1982. The growth records for the Landerses' final two batches of chickens ranked very high.
The Landerses' complaint was predicated upon fraud and breach of contract claims. Following a trial, the jury returned a general verdict, in favor of the Landerses for $30,000.00. The trial court denied Durbin's motion for judgment notwithstanding the verdict or in the alternative for new trial.
On appeal, the thrust of Durbin's argument is that the Landerses failed to present sufficient proof of fraud, breach of contract, or damages proximately caused thereby, and that the evidence does not support the verdict. Durbin also claims that the court committed reversible error in its instructions to the jury and in the admission of immaterial and prejudicial evidence.
The issues presented by Durbin are considered separately.
Durbin initially contends that the trial court erred in denying its motion for directed verdict and its motion for judgment notwithstanding the verdict on the fraud count. Durbin claims that there was a total failure of proof of fraudthat there was no evidence of present intent to defraud, because the Landerses failed to prove that Durbin knew when it entered into the agreement on June 29, 1982, that it planned to stop supplying chickens to growers in Lawrence County.
In order to maintain a cause of action for fraud, a plaintiff must show that the defendant made a false representation concerning an existing material fact, on which plaintiff justifiably relied to his detriment. Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76, 80 (Ala.1983). In addition, where the alleged representation is predicated upon a promise to perform or to abstain from some act in the future, the plaintiff must also prove that at the time the promise was made, the promissor had an actual fraudulent intent not to perform the promise, and had a present intent to deceive the plaintiff. Kennedy Electric, supra; Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala. 1983). Fraudulent intent must be substantiated by the evidence, or else the claim should not be submitted to the jury. "Of course, mere failure to perform is not of itself evidence of intent not to perform at the time the promise or contract was made. If it were, a mere breach of contract would be tantamount to fraud." Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976). Since present intent not to perform a future act is difficult to prove by direct evidence of a defendant's state of mind, a plaintiff may meet this burden by circumstantial evidence. The circumstances must, nevertheless, be such that the jury, as reasonable persons, may fairly and reasonably infer the ultimate fact sought to be proved, Clanton v. Bains Oil Co., 417 So. 2d 149, 151 (Ala.1982); in this case that Durbin knew, before entering into the agreement with the Landerses, that it planned to pull out of Lawrence County.
We hold that, in this case, the issue of fraudulent intent was properly submitted to the jury. We hold that there was sufficient evidence introduced upon which the jury could reasonably infer the requisite intent. Purcell, supra, 431 So. 2d at 519. For example, the evidence indicates that during the period of 1981 until August 1982, Durbin picked up additional growers in Winston County and at the same time did not take on any growers in Lawrence County. Competition remained the same during these years, and Durbin needed approximately the same number of growers.
There was also testimony from Gilbert Berryman, a grower living close to Lawrence County. He was also told on August 24, 1982, that Durbin planned to pull out of the area. When he asked why he was not told of the pullout sooner, he was told by Durbin's representatives that it would not have been advisable. Although Durbin's witnesses claimed that the decision to pull out of Lawrence County was not made until August 1982, there was testimony from other witnesses which indicated that they were informed of the pullout prior to August 1982. Accordingly, the jury could reasonably have inferred, because Durbin was picking up new growers outside of Lawrence County and the growers in Lawrence County were not getting as many chickens, that the decision to completely pull out of Lawrence County had been made prior to the June agreement entered into by the Landerses.
Durbin also contends that the trial judge erred by failing to properly instruct the jury on the issue of fraud involving a future promise and on punitive damages. Upon review of the record, it appears that Durbin failed to specifically object to the court's oral charge. "A party waives any possible error as to a trial court's oral charge by failing to specifically object and to state grounds for the objection." See Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877, 882-883 (Ala.1979); Beneficial *1102 Management Corp. v. Evans, 421 So. 2d 92 (Ala.1982); Rule 51, A.R.Civ.P.
Durbin contends that the contract claim should not have been submitted to the jury, because, it says, the Landerses failed to show the existence of a contract. It argues that there was no "meeting of the minds" as to how many batches of chickens Durbin would have to furnish, and as to how long the relationship would last.
We disagree. There was at least a scintilla of evidence presented to raise the question of fact of whether a contract existed between the parties. The jury was entitled to review the June 29, 1982, memo, which was evidence of the parties' intention to enter into an agreement. Whether there was a breach of that agreement was a question of fact for the jury.
Durbin also argues that the Landerses failed to prove any actual damages, which (except in instances in which nominal damages may properly be awarded) is an essential element under either the breach of contract claim or the fraud claim. Arguing that the $30,000.00 jury verdict was excessive and against the great weight of the evidence, Durbin contends that no damages were incurred, since the Landerses received two batches of chickens after they entered into the agreement, and any expenses incurred were for improvements which they are still receiving benefits from. Furthermore, Durbin agrees that, based upon the course of dealings between the parties, the Landerses knew that chickens were supplied on a batch-to-batch basis, and Durbin says, the Landerses received the same number of chickens as they generally did per year. Durbin also argues that following the alleged fraud and breach of contract, the Landerses made more money than before by obtaining chickens from a new supplier.
We disagree with Durbin and find that the jury was justified in returning the $30,000.00 verdict.
In general, damages recoverable for breach of contract are those which result naturally and proximately from the breach, and such as the parties should have contemplated when the contract was made. Damages are awarded to place the injured party in the position he would have occupied had the contract not been breached. West v. Friday, 403 So. 2d 213 (Ala.1981). In determining the damages, any necessary expenses that the parties reasonably incur in complying with the contract may be included. Additionally, expenses incurred as a result of fraudulent misrepresentation may be recovered. A party may recover all damages which were within the contemplation of the parties or which were necessary or natural and proximate consequences of the fraud. C. Gamble and D. Corley, Alabama Law of Damages §§ 17-1, 36-32 (1982).
The Landerses claim damages as follows: That the fair market value of chicken house # 1 when torn down was $17,000.00; that the cost of replacement of feeders and equipment was $12,800.00; that diesel fuel cost then $500.00; that due to Durbin's delay furnishing chickens, they lost at least one batch of chickens, valued at $5,100.00; and the Landerses also claim that their income dropped from $36,500.00 in 1981 to $28,000.00 in 1982 due to the loss of chicken house # 1.
The expenses incurred by the Landerses were necessary to fulfill their part of the agreement and were contemplated by the parties when the agreement was entered into. Had Durbin not represented that it would continue to supply chickens, the Landerses would not have incurred the cost of the renovations.
We will not overturn the jury's award, as the amount is not so excessive as to show passion, prejudice, or improper motive. Johnson Publishing Co. v. Davis, 124 So. 2d 441, 271 Ala. 474 (1960).
Finally, Durbin argues that the trial court erred by admitting improper testimony *1103 and by improperly commenting on the evidence. Upon review of the record, we find that the judge did not abuse his discretion, but that if there was any error, it was merely harmless error.
Accordingly, we affirm the trial court's judgment.
AFFIRMED.
SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | February 22, 1985 |
4bc8ea90-f17d-4348-bcfb-a9c7a0ecb7a2 | Otis Elevator Co., Inc. v. Stallworth | 474 So. 2d 82 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 82 (1985)
OTIS ELEVATOR COMPANY, INC.
v.
Carrie STALLWORTH.
83-1382.
Supreme Court of Alabama.
June 28, 1985.
Benjamen T. Rowe of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellant.
Christopher E. Peters of Pate & Peters, Mobile, for appellee.
FAULKNER, Justice.
This appeal is from a verdict and judgment in an action brought by Carrie Stallworth against Otis Elevator Company for bodily injuries received by her when she was thrown out of an elevator. We reverse.
Stallworth was an employee in the dietary department at Providence Hospital in Mobile. Stallworth claims that on May 22, 1980, she was injured as a result of an accident which occurred while she was riding in a hospital elevator maintained by Otis Elevator Company. Stallworth brought suit against Otis Elevator Company for negligence in maintaining the elevator and for breach of its maintenance contract with the hospital.
At trial, Stallworth testified that she got on the elevator with her food cart on the *83 third floor and pushed the first floor button. On the way down, the elevator started jerking erratically. The elevator door opened about 18 to 24 inches above the first floor and she was thrown out. As a result, Stallworth claims, she suffered permanent injuries to her back and left knee.
The jury returned a verdict in favor of Stallworth in the amount of $50,000.00. After a denial of its motion for new trial, Otis Elevator Company appeals.
The determinative issue in this case is whether argument by plaintiff's counsel constituted improper and prejudicial error justifying reversal of the judgment in this cause.
Otis Elevator Company claims that the following statement made by Stallworth's attorney during closing argument constituted an improper comment regarding defendant's financial status:
Otis Elevator Company contends that this argument was advanced solely for the purpose of improperly introducing the wealth of the defendant to the jury.
This issue has previously been addressed by this Court. In determining whether counsel's argument is improper, this Court must consider the evidence, the argument itself, the prejudicial effect of that argument and the corrective actions of the Court. Estis Trucking Co. v. Hammond, 387 So. 2d 768 (Ala.1980).
In Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 268 So. 2d 725 (1972), this Court reversed a jury verdict in favor of defendants because of the following improper statement made by defense attorney during closing argument:
In Horton v. Continental Volkswagen, Inc., 382 So. 2d 551 (Ala.1980), this Court determined that the following remarks of defense counsel constituted improper injection into the case of defendant's modest financial status:
382 So. 2d at 552.
Similarly, in Estis Trucking Co. v. Hammond, 387 So. 2d 768 (Ala.1980), this Court reversed a verdict for the plaintiff in an automobile-truck collision case, partly, because the plaintiff's attorney had referred in his closing argument to the defense attorney's habit of trying expensive lawsuits. The Court reasoned that this remark implied that the defendant must have been wealthy to be able to afford to hire an attorney who tries only expensive lawsuits.
*84 The standard of review in Alabama regarding the propriety of an attorney's closing argument is as follows:
Estis Trucking Co., supra, 387 So. 2d at 771-72 (citing Alabama Farm Bureau Mutual Casualty Co. v. Humphrey, 54 Ala. App. 343, 308 So. 2d 255 (1975)).
After careful review of the record before us, we must conclude that the argument of counsel was improper and highly prejudicial. The language used by plaintiff's attorney implies that if Otis Elevator Company could afford to hire an expensive expert from New York to testify in over one hundred cases, then that same company could afford to pay a judgment in favor of the plaintiff. While the argument that Mr. McAuley had testified in over one hundred cases for Otis Elevator might have been proper to show his bias, the direct reference to the company's ability to hire that expert was an improper reference to the wealth or the supposed wealth of the defendant.
Moreover, in the present case the court took no corrective action to instruct the jury that this argument was improper. Because there was no admonition from the trial court, the influence of this improper argument was not eradicated from the minds of the jury. Nor can the general instructions in the court's oral charge, that the remarks of counsel were not evidence, have eradicated the prejudicial effect. Allison v. Acton-Ethridge Coal Co., 289 Ala. 443, 448, 268 So. 2d 725, 727 (1972). Cf. Atkins v. Drake, 437 So. 2d 469 (Ala.1983).
Otis Elevator Company also contends that the trial court, in addressing a juror's question, made an improper comment on the wealth of the plaintiff (or lack thereof), by stating that she had no other suits pending and that all other negligence claims were time-barred.
Upon review of the entire colloquy from the bench, it appears that the trial court was merely attempting to answer the juror's inquiry and to clear up any misconceptions. Additionally, the court admonished the jury that the existence or non-existence of any other litigation should not affect their decision:
We therefore find that the trial court did not improperly comment upon the financial status of the parties. Even if we were to find any error, any prejudice would have been eradicated by the prompt instruction to the jury. This case must be reversed, however, based upon our previous discussion of the improper argument of plaintiff's counsel.
We hereby reverse and remand this cause for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | June 28, 1985 |
ab4d51d8-e003-4fd7-8166-484461838621 | City of Tuscaloosa v. Alabama Retail Ass'n | 466 So. 2d 103 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 103 (1985)
CITY OF TUSCALOOSA, a Municipal Corporation; City of Montgomery, a Municipal Corporation; City of Homewood, a Municipal Corporation
v.
ALABAMA RETAIL ASSOCIATION, a Corporation, et al.
No. 83-905.
Supreme Court of Alabama.
February 15, 1985.
*104 Robert W. Ennis, IV, City Atty., and Martha E. Durant, Asst. City Atty., for City of Tuscaloosa.
Drayton N. Hamilton, Montgomery, for City of Montgomery.
James W. Porter, II, Birmingham, for City of Homewood.
Walter R. Byars, Steiner, Crum & Baker and John B. Scott, Jr., Capell, Howard, Knabe & Cobbs, Montgomery, for appellee.
JONES, Justice.
This appeal challenges the validity of the Alabama Table Wine Act as it relates to the Alcoholic Beverage Licensing Code.
Suit was brought by the Alabama Retail Association (ARA), five retailers licensed to sell table wine, the Alabama Wholesale Beer and Wine Association (AWBWA), and four wholesalers licensed to sell table wine, against named municipal and county defendants, individually and as class representatives, and a defendant class composed of other municipalities and counties, all of whom levy and impose license fees, taxes, or other charges for the privilege of selling table wine. Appellees (Merchants) sought: 1) a declaratory adjudication that the local ordinances enacted by Appellants (Cities) were invalid as violating sections 13(a) and 16(d) of the Table Wine Act; 2) injunctive relief prohibiting Cities from imposing and collecting local taxes and license fees for the sale of table wine; and 3) damages in the amount of any license fee or tax collected by Cities in excess of that permitted by the Table Wine Act.
Both Merchants and Cities moved for summary judgment based on the pleadings and the record before the trial court at the hearing for class determination (which record included the code sections at issue, the applicable licensing and taxing provisions of the named municipalities and all wet counties in Alabama, and a 1983 amendment to the Table Wine Act). At the hearing on these motions, the parties agreed that there was no factual dispute with regard to the injunctive and declaratory relief sought, and further stipulated that the claim for money damages should be dismissed without prejudice.
Based upon the pleadings, briefs, and oral argument presented by all named parties, the trial court entered its final judgment. The court's order held that the limitations found in sections 13(a) and 16(d) of the Table Wine Act are valid, and that the Alcoholic Beverage Licensing Code in no way repeals or modifies the prohibitions and limitations on local licenses and taxes found in the Table Wine Act. The order further enjoined the named and class defendants from collecting any license fee or privilege tax or other charge in excess of that imposed by the Table Wine Act (other than a general sales tax). Three of the named Cities appeal from the final judgment. We affirm.
On appeal, Cities attack not only the trial court's order with respect to the "conflicting" code sections, but also charge that the court erred in allowing ARA and AWBWA to proceed as plaintiffs. We will address each of these contentions separately.
The Alabama Table Wine Act, now codified at Code 1975, § 28-7-1, et seq., became effective on September 30, 1980. Section 2 of the Act sets out the legislative intent:
The Alcoholic Beverage Licensing Code, also with an effective date of September 30, 1980, is found at Code 1975, § 28-3A-1, et seq.
Section 13(a)[1] of the Table Wine Act provides that statewide table wine license fees shall be $150 for a wine retailer's license, $550 for a wine wholesaler's license, $500 for a wine importer's license, and $500 for a wine manufacturer's license. That section goes on to provide, however, that "said county or municipality shall levy no license or privilege tax, or other charge for the privilege of doing business as a wine wholesaler, importer or retailer, which shall exceed one-half the amount of the state license fee levied under the provisions of this Section for like privilege."
Section 16(d) of the Table Wine Act requires that "[t]he tax herein levied is exclusive and shall be in lieu of all other and additional taxes and licenses of the state, county or municipality, imposed on or measured by the sale or volume of sale of table wine; provided, that nothing herein contained shall be construed to exempt the retail sale of table wine from the levy of tax on general retail sales...."
The local ordinances of the named and class Defendants either levied license fees exceeding one-half of the state license fee in violation of Section 13(a), or imposed taxes based upon percentage of sales or purchases of table wine in violation of Section 16(d), or both.
We agree with Cities' argument that the passage of the Alcoholic Beverage Licensing Code "demonstrates a clear intention on the part of the legislature to revise the law as to the licensing and regulation of all alcoholic beverages." Indeed, such was the precise conclusion reached in Merrell v. City of Huntsville, 460 So. 2d 1248 (Ala.1984):
The Alcoholic Beverage Licensing Code, however, while specifically repealing particular sections of the then-existing alcoholic beverage statutes (see Section 27 of the Alcoholic Beverage Licensing Code), does not specifically repeal any provision of the Table Wine Act. Indeed, the exclusive tax on, or measured by the sale of, table wine levied by Section 16 of the Table Wine Act is in no way addressed or dealt with in the provisions of the Alcoholic Beverage Licensing Code.
Further, the general repealing clause found at Section 27 of the Alcoholic Beverage Licensing Code cannot operate to repeal the Table Wine Act except to repeal by implication any conflicting portions of the Table Wine Act; and it has been consistently held in this State that repeal by implication is never favored by the courts. Sand Mountain Bank v. Albertville Bank, 442 So. 2d 13 (Ala.1983); Ex parte Jones, 212 Ala. 259, 102 So. 234 (1924).
The degree of conflict required between two statutes in order to declare that *106 one impliedly repeals the other is that of irreconcilability.
Reid v. City of Birmingham, 274 Ala. 629, 635-36, 150 So. 2d 735, 741 (1963), quoting Davis v. Browder, 231 Ala. 332, 335, 165 So. 89, 91 (1935).
Reid v. City of Birmingham, supra, quoting Marengo County v. Wilcox County, 215 Ala. 640, 642, 112 So. 243, 245 (1927).
Further, where, as here, "a special subject has been specially provided for by law, it will not be considered as repealed by a subsequent law which deals with a general subject in a general way, though the specific subject of a special provision may be included in the general subject and the general provision." City of Mobile v. Mobile Electric Company, 203 Ala. 574, 578, 84 So. 816, 819 (1920).
We hold, then, that the Alcoholic Beverage Licensing Code is a comprehensive statute which deals with the licensing of those engaged in transactions involving alcoholic beverages; and, while it is comprehensive, it is, by the very nature of its own broad scope, a general statute. The Table Wine Act, however, is a statute enacted to further a specific legislative intent and deals exclusively with transactions involving table wine; thus, it is a specific statute.
Because the "conflict" between these two statutes does not rise to the degree of irreconcilability, we find that each statute may be given a reasonable field of operation, which will, when they are construed together, give effect to the legislative intent and purpose of both enactments. Although, in this case, the specific will control the general, we do not find that the overall purpose of the general statute will be thwarted by giving effect to the specific statute. We find additional support for our decision in the legislature's further amending Section 16 of the Table Wine Act during its 1983 regular session (see Act No. 83-594, approved July 25, 1983).
Accordingly, we hold that the Table Wine Act, as amended, is neither repealed nor modified, either expressly or impliedly, by the provisions of the Alcoholic Beverage Licensing Code. The statutes should be construed in pari materia, and where there exists a conflict between the two, the more specific provisions of the Table Wine Act will control.
Cities allege that the trial court erred in denying their motions to strike both ARA and AWBWA as plaintiffs. Cities maintain that the two trade associations do not possess the requisite standing to sue on behalf of their members, nor are they real parties in interest as required by Rule 17(a) of the Alabama Rules of Civil Procedure.
Assuming, arguendo, that Cities are correct in their assertion that the two trade associations were not proper parties, Cities have not shown any injury suffered as a result of the trial court's allowing ARA and AWBWA to proceed as plaintiffs. Indeed, there are five retailers and four wholesalers that were also Plaintiffs in this actionPlaintiffs who meet the criteria for standing which, Cities argue, the trade associations do not meet.
We hold that the trial court's refusing to strike ARA and AWBWA as plaintiffs did not affect Cities' substantial rights. Rule 61, A.R.Civ.P. Therefore, because Cities have failed to show the requisite injury to their substantial rights, the error on the part of the trial court, if any, is harmless and cannot serve as a basis for reversal of the final judgment appealed from. Spencer v. Malone Freight Lines, 292 Ala. 582, 298 So. 2d 20 (1974); Rule 45, A.R.A.P.
The final judgment entered by the trial court is correct and, hereby, is affirmed.
AFFIRMED.
All the Justices concur.
[1] All references to sections of either the Table Wine Act or the Alcoholic Beverage Licensing Code also refer to the same section of the corresponding Alabama Code title and chapter. For example, Section 1 of the Table Wine Act is § 28-7-1. | February 15, 1985 |
037d298f-f0e0-437b-9113-cf25d13afba9 | Whitehead v. Johnston | 467 So. 2d 240 | N/A | Alabama | Alabama Supreme Court | 467 So. 2d 240 (1985)
John J. WHITEHEAD and Marie G. Whitehead
v.
J.B. JOHNSTON, Jr., et al.
H.P. CAIN and Martha Cain
v.
J.B. JOHNSTON, Jr., et al.
83-608, 83-609.
Supreme Court of Alabama.
March 15, 1985.
*241 Robert S. Edington, Mobile, for appellants Whitehead.
Mark J. Everest of Collins, Galloway & Smith, Mobile, for appellants Cain.
James W. Tarlton, III, and John W. Donald, Jr., Hamilton, Butler, Riddick, Tarlton & Sullivan, Mobile, for appellees.
MADDOX, Justice.
These cases were consolidated on appeal. At issue is the validity of a "cover-all" or "Mother Hubbard" clause in a standard producer's 88, oil, gas, and mineral lease, and whether it is ambiguous.
The facts are as follows: Co-appellant H.P. Cain acquired Lot 16 of the Grand Bay Land Company Subdivision on August 14, 1946. In December of 1974, Cain leased the south half of Lot 16 to E.L. Dunn. In January of 1975, Cain leased the north half of Lot 16 to appellee J.B. Johnston, Jr. This lease contained the following Mother Hubbard clause:
At the time Cain leased to Johnston, Cain claimed by adverse possession a one-acre strip of land adjoining the five acres leased to Johnston. This strip of land is the subject of the present litigation.
In July of 1975, Cain filed a bill to quiet title to Lot 16 together with the one-acre strip of land described above. After the decree quieting title had been granted, Cain leased the subject one-acre strip of land for $10,000 to one Bethea, who then assigned it to co-appellants Whitehead. Johnston filed suit in the Circuit Court of Mobile County to enforce his claim to the one-acre tract by virtue of the Mother Hubbard clause. Thereafter, Johnston filed a motion for summary judgment. Bethea and the Whiteheads counterclaimed, alleging disparagement of title and unlawful interference with a business expectancy. The trial court granted Johnston's motion for summary judgment and dismissed the counterclaims. The Whiteheads and Cain appeal here.
This is a question of first impression in Alabama. Although we find no Alabama cases construing a Mother Hubbard clause such as the one presented here, other jurisdictions have given effect to such clauses. See, e.g., Luthi v. Evans, 223 Kan. 622, 576 P.2d 1064, 1067 (1978); Grice v. Brewer, 302 So. 2d 511 (Miss.1974); Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (1935).
Mother Hubbard clauses, also referred to as "cover-all," "catch-all," or "all-inclusive" clauses, E. Kuntz, Law of Oil & Gas, § 22.3(b) (1964), originated in oil and gas leases and mineral and royalty deeds so that an interest intended to be conveyed *242 would be transferred even if the specific description used in the instrument omitted a particular portion thereof. H. Williams and C. Meyers, Oil and Gas Law § 221.3 (3rd rev. 1984). In addition, public policy discourages the separate ownership of narrow strips of land. 38 Am.Jur.2d Gas and Oil § 83 (1968). Based on the foregoing, when there is excess acreage or a small strip of land adjoining the interest conveyed, but that small strip is not included within the particular description, and a question arises regarding whether the excess or omitted land passes under the instrument, "courts have not experienced much difficulty in [finding an] intent [to convey the small strip of land or omitted acreage] as evidenced by the cover-all clauses." H. Williams and C. Meyers, supra, at 302. In Texas Co. v. Newton Naval Stores Co., 223 Miss. 468, 78 So. 2d 751, 4 O. & G.R. 609, 49 A.L.R.2d 1182 (1955), the dissenting Justice recognized the purpose of Mother Hubbard clauses as follows:
78 So. 2d 751, 754 (Gillespie, J., dissenting).
Relying on Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608 (1956), Whitehead and Cain contend that the lease involved here contains a latent ambiguity because it specifically describes five acres by government calls and also contains a Mother Hubbard clause which, if literally construed, would include the one-acre strip of land. Because they say there is an ambiguity, they contend that parol evidence should have been allowed to ascertain the intent of the parties. We disagree.
The Smith case, in which the Court found that the deed was ambiguous, is distinguishable from the case at hand because in Smith the tract of land sought to be included pursuant to the Mother Hubbard clause was substantially larger than the area included within the particular description. Thus, in Smith, the court found the deed was ambiguous, because inclusion of the land would thwart the purpose of the clause and the parties' intent. That is to say that the clause was intended to apply only to small tracts of land adjacent to specifically described land, but inadvertently omitted, or small tracts of land which were said to constitute a part of the described tracts.
In the case at hand, the lease clearly and in unambiguous terms applies to the land in question even though the strip is not specifically described. The Mother Hubbard clause in this lease includes land only if two conditions are met: (1) The land must be "contiguous or adjacent to or adjoining the land [specifically] described," and (2) the land must be claimed by the lessor "by limitation, prescription, possession, reversion, or unrecorded instrument." Both of these conditions were met here: (1) The strip of land in question adjoins the land specifically described, and (2) at the time Cain executed the lease, he claimed ownership of the strip by adverse possession.
Furthermore, the lease provides for the inclusion of the land, even if not specifically described, because the lease indicates that the designation of "5 acres" was for the purpose of calculating the consideration or "bonus" paid for the lease. The sentence immediately following the Mother Hubbard clause in the lease is as follows:
The phrase "more or less" qualifies the actual number of acres specifically described.
*243 When parties enter a written contract, the writing is the sole expositor of the intention of the parties and the transaction. Gunnels v. Jimmerson, 331 So. 2d 247 (Ala.1976). Parol evidence cannot be introduced to explain, contradict, vary, add to, or subtract from its terms unless there is a mistake, fraud, or ambiguity. Collier v. Brown, 285 Ala. 40, 228 So. 2d 800 (1969).
Based on the facts presented, we find no ambiguity in the provisions of the lease; neither is there any evidence of mistake or fraud in the transaction. Whether a lease is ambiguous is a question of law; consequently, the trial court properly prohibited the introduction of parol evidence to contradict or vary the terms of the lease. We need not decide when and under what circumstances a lease will be deemed ambiguous when the lease or deed contains a specific description of land and a Mother Hubbard clause. We only hold that under the present facts there is no ambiguity, as a matter of law.
Rule 56, Ala.R.Civ.P., sets forth the two-part standard for granting summary judgment. That rule requires the trial court to determine: (1) that there is no genuine issue of material fact and, (2) that the moving party is entitled to judgment as a matter of law. This rule must be read in conjunction with the scintilla rule so that summary judgment will not be granted if there is a scintilla of evidence supporting the position of the opposing party. Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So. 2d 112, 114 (Ala.1983).
Because we find no ambiguity in the provisions of the written lease, and because the two conditions of the Mother Hubbard clause were met, there is no genuine issue as to any material fact. Consequently, the summary judgment in favor of Johnston, with its dismissal of the counterclaims, is due to be, and is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
FAULKNER, JONES and ALMON, JJ., dissent.
JONES, Justice (dissenting).
I find myself unable to accept the absolutism with which the majority opinion treats the "Mother Hubbard" clause in the lease from Cain to Johnston.
As I understand the facts, Lot 16 was a well-defined 10-acre tract when Cain acquired it in 1946. When he leased the north half in 1975, he also owned (or claimed to own) an additional 1-acre tract adjacent to the 5-acre tract leased to Johnston. That 1-acre tract, which he later acquired through a bill to quiet title, had nothing to do with clearing title to any portion of Lot 16. That is to say, Cain's litigation to acquire title to the additional 1-acre tract was not intended as "title curative" with respect to Johnston's north half of Lot 16.
I do not disagree with the authorities cited by the majority that give the "Mother Hubbard" clause a restricted application. This is the general rule, and I think it is a sound one. To apply the "cover all" language to expand the lease in the instant case to include six acres within the leased north half of Lot 16, however, is, in my opinion, a misapplication of the rule. The rule of restricted application gives the "cover all" language a field of operation in those narrow circumstances compatible with the obvious intention of the parties; and it avoids the necessity for declaring the clause inoperative as contravening public policy if given a literal interpretation. For a general discussion of "Mother Hubbard" clauses, see R. Hemingway, The Law of Oil and Gas, § 7.7 (1983).
Two examplesone at each end of the spectrumwill suffice to illustrate my point. Example No. 1 (restricted application): Suppose the north edge of the north half of Lot 16 was represented by Cain to Johnston as being bounded by a public road and a physical inspection of the property so indicated. In fact, however, a subsequent survey shows that a metes and bounds description containing 5 acres (exactly as shown in the conveying clause) leaves a *244 100-foot strip between the north edge of the property and the south edge of the public right-of-way. Cain, having possessed, occupied, and claimed the 100-foot strip, then proceeds to clear title. Clearly, the "Mother Hubbard" clause gives Johnston the entire tractthe 5 acres described in the lease plus the 100-foot strip.
Example 2 (literal interpretation): Assume, for the purpose of this example, that Cain's lease of the south half of Lot 16 to Dunn in 1974 also contained the "Mother Hubbard" clause. A literal interpretation of this "cover all" language would have conveyed a lease interest to Dunn in the entire 10-acre tract; for, to be sure, the north half of Lot 16 lies "contiguous or adjacent to or adjoining the land above described." Additionally, the 1-acre tract would also go to Dunn, because it too was "claimed by lessor by ... prescription." So, Dunn would have acquired, through his 5-acre (south half of Lot 16) lease in 1974, the entire 11 acres; and Johnston would have acquired nothing by his 1975 lease.
The courts, then, for good reason, have given the "Mother Hubbard" clause a restricted, rather than a literal, application. Yet, the majority in the instant case, by declaring summarily and as a matter of law (thus, foreclosing parol evidence as to the intention of the parties) that Johnston's lease included the after-acquired acreage, gives the "Mother Hubbard" clause a literal, rather than a restricted, application.
By way of conclusion, I feel constrained to comment upon the majority's reference to the sentence in the lease following the "Mother Hubbard" clause. That sentence begins, "For the purpose of determining the amount of any bonus or other payment hereunder...." In spite of that explicit "purpose," the majority uses the phrase "said land shall be deemed to contain 5 acres whether actually containing more or less" as part of its rationale to justify the inclusion of the additional acre within the terms of the lease. By clear and unmistakable language, it is only for the determination of the amount of payment that the parties agree upon specific acreage (here 5 acres) and not for the purpose of extending the description contained in the conveying clause. Even if the "5 acres more or less" appeared in the legal description of the lease, the property conveyed would not extend beyond the acreage contained in the described north half of Lot 16. Apart from our disagreement with respect to the majority's application of the "Mother Hubbard" clause, the majority opinion is clearly off base in its reliance on the determination-of-payment language in the lease.
FAULKNER, J., concurs. | March 15, 1985 |
4a8adf84-7ad7-4cca-927d-0b7ede161844 | Kinard v. CA KELLY AND CO., INC. | 468 So. 2d 133 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 133 (1985)
Emogene KINARD
v.
C.A. KELLY AND COMPANY, INC., et al.
83-712.
Supreme Court of Alabama.
March 29, 1985.
*134 Donald M. Briskman and Mark R. Ulmer, Mobile, for appellants.
Douglas L. McCoy of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
FAULKNER, Justice.
This case reaches us on an appeal from a summary judgment. The dispositive issue involves Alabama's fictitious party rule, A.R.Civ.P. 9(h).
On August 12, 1979, Emogene Kinard, a tenant of the Magnolia Inn Apartments in Mobile, fell in the apartment's parking lot while carrying a small trash can toward the apartment's garbage collection point. The parking area had recently been resurfaced and Kinard claims that her fall was the proximate result of the uneven condition of the surface.
Kinard retained an attorney, who contacted her lessor, C.A. Kelly & Co., Inc. Kelly & Co. (hereinafter Kelly & Co.), informed Kinard's lawyer that it managed the apartments on behalf of the owners of the complex, "a group of men including Alex Foreman and Larry McKinney." On August 8, 1980, Kinard's lawyer filed an action on her behalf against the Magnolia Inn Apartments, C.A. Kelly & Co., Inc., Alex Foreman, Larry McKinney, and fictitious parties described as owners of the premises. Kelly & Co. was the only defendant served with a copy of the summons and complaint.
Although Kinard's brief states that her lawyer commenced "informal discovery efforts" soon after the complaint was filed, in an attempt to discover the true identities of the other owners and the addresses of Foreman and McKinney, we find no evidence in the record of any attempts to discover the true identities of the fictitious parties until January 1983, when the plaintiff propounded interrogatories to Kelly & Co. In response to Kinard's interrogatories, Kelly & Co. informed Kinard that the apartments were owned by Wade Faulkner, William Healy, Max McLaughlin, Larry McKinney, Michael Maitre, John Robertson, and Alex Foreman. Upon being informed of the names and addresses of the owners, Kinard immediately amended her complaint in an attempt to substitute the named individuals for the fictitious parties. She obtained service on the defendants substituted for the fictitious parties and on the defendants named in the original complaint who had not been served.
The defendants filed a motion for summary judgment. It was based on two grounds. First, all of the defendants argued that recovery could not be had against any of them because of the presence of an exculpatory clause in the lease under which Kinard was occupying the apartment. Second, the defendants who were substituted for the fictitious parties pleaded the statute of limitations. The trial court granted the motion as to all defendants, and Kinard appeals.
We need not address the issue regarding the exculpatory clause. The defendants concede that, in light of this Court's decision in Lloyd v. Service Corp. of Alabama, Inc., 453 So. 2d 735 (Ala.1984), they are not entitled to a summary judgment, at least at this stage of the proceedings, on that ground.
Resolution of the statute of limitations issue will require application of the fictitious party rule, A.R.Civ.P. 9(h). Under Alabama law, when a plaintiff has a *135 cause of action against someone, but is ignorant of the person's identity, he may in his pleadings designate that person by any name and, thereafter, when he ascertains the true identity of the defendant, he may amend his pleadings and substitute the party's true name for the fictitious one. A.R. Civ.P. 9(h). An amendment pursuant to Rule 9(h) substituting the defendant's true name for a fictitious one is not an amendment changing the party against whom a claim is asserted. The substitution of a named defendant for a fictitious one relates back to the date of the original pleading. A.R.Civ.P. 15(c). When, as is the case here, the amendment purporting to substitute parties takes place after the expiration of the statute of limitations, the question whether the amendment was made pursuant to Rule 9(h) becomes crucial, since the action would otherwise be time-barred.
In order to proceed under Rule 9(h), the plaintiff must be ignorant of the identity of the fictitious party when he files the original complaint and he must state a cause of action against the fictitious party in the body of the original complaint. Phelps v. South Alabama Elec. Co-Op, 434 So. 2d 234, 236 (Ala.1983). In this case the fictitious parties were clearly designated in the body of the complaint. The issue here, therefore, involves the "knowledge" element and the length of time which elapsed between the filing of the complaint and the amendment.
The defendants point out that in Columbia Engineering Int'l. Ltd. v. Espey, 429 So. 2d 955, 959 (Ala.1983), this Court stated that Rule 9(h) is applicable to cases where the plaintiff "has been unable to ascertain through due diligence the name of the responsible party or entity." Defendants argue that "some standard of reasonable investigation must be imposed on a plaintiff in order to coordinate Rule 15(c) with the general purpose of statutes of limitation `to prevent stale claims from springing up after long periods of time and surprising the parties or their representatives when evidence has become lost or the facts have become obscure from the lapse of time.'" In support of the imposition of a duty of "reasonable investigation," they rely on the reference to "due diligence" in Columbia Engineering, supra, and on a line of cases in which this Court has refused to apply the relation-back principle in instances where there has been an inordinate delay from the time the plaintiff acquired knowledge of the fictitious party's true identity until actual substitution of the party's true name. See Walden v. Mineral Equipment Co., 406 So. 2d 385 (Ala.1981).
Plaintiff argues that the record shows it to be uncontroverted that she did not discover the defendants' true identities until May 1983, and that she promptly proceeded to amend her complaint upon learning the defendants' true identities. She argues that the "due diligence" standard advocated by the defendants would be at odds with the plain wording of the rule, which embodies a standard based only on the plaintiff's lack of actual knowledge.
After the statute of limitations has run for purposes of adding new defendants, a plaintiff may substitute a named defendant for a fictitious one if Rule 9(h) has been complied with. Although the express language of the statute does not require the plaintiff to substitute the named defendant for the fictitious party within a reasonable time after determining the defendant's true identity, this Court has imposed such a duty. Walden, supra. Clearly, the policy reasons for having a statute of limitations militate in favor of such a result. The diligent plaintiff who is truly ignorant of the defendant's identity at the time of filing the original complaint is not penalized. The recalcitrant plaintiff cannot, however, use the rule to gain what might otherwise amount to an open-ended statute of limitations. We opine that the same policy considerations which require a plaintiff to amend his complaint within a reasonable time after learning the defendant's true identity also require the plaintiff to proceed in a reasonably diligent manner in determining the true identity of the defendant.
*136 In this case the plaintiff was injured on August 12, 1979. She filed her action on August 8, 1980, but did not propound interrogatories in an attempt to determine the true identities of the owners until January of 1983. In our opinion, the plaintiff did not act reasonably in waiting for that length of time before attempting to determine the defendants' identities. She should not be allowed, therefore, to substitute them for the fictitious parties named in the complaint.
The opinion of the trial court is affirmed in part; reversed in part; and remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
7ef6c86a-7748-4c84-832a-0088e9303840 | Harris v. School Annual Pub. Co. | 466 So. 2d 963 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 963 (1985)
Carrie L. HARRIS
v.
SCHOOL ANNUAL PUBLISHING CO., et al.
83-1237.
Supreme Court of Alabama.
February 22, 1985.
*964 Richard L. Osborne of England & Bivens, Tuscaloosa, for appellant.
James E. Williams, of Melton & Espy, Montgomery, for appellee School Annual Pub. Co.
William P. Cobb II, of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for appellees Foster, Clark, Stewart, et al.
SHORES, Justice.
Mrs. Carrie L. Harris, a third grade teacher at Union Springs Elementary School, Union Springs, Alabama, brought this action against several teachers and school officials at Union Springs Elementary School and against School Annual Publishing Co., hereinafter SAPC, an Ohio corporation, for an allegedly defamatory illustration and caption which appeared in a publication entitled "Union Springs Elementary 1982 Highlights." The trial court granted summary judgment in favor of all defendants. We affirm.
SAPC mailed a solicitation letter, along with an application, to Union Springs Elementary School, proposing to supply the school with a kit for the preparation of a yearbook which SAPC would later publish. The proposal was accepted by Hoover Burney, the school principal, and the application was completed and returned to SAPC. Mr. Burney assigned the task of preparing the yearbook to Judy Bowden, Arizetta Holt, Climmie Cooper, Bertha Jernigan, Betty Holmes, and Sue Yates, all teachers at the school.
Mrs. Harris was asked to have her picture taken to appear in the teachers' section of the publication, but declined. In place of her picture, there appeared on page seven of the yearbook the following cartoon drawing of a monkey sitting on a swing, holding a banana, with the caption "out munching" to the side, and Mrs. Harris's name printed underneath.
The cartoon was selected from a booklet supplied by SAPC, entitled "Clip Art II." No defendant admits to adding the caption "out munching."
Mrs. Harris filed suit in the Circuit Court of Bullock County, alleging the defendants defamed her as follows:
A communication is considered defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1976). Whether the communication is reasonably capable of a defamatory meaning is a question, in the first instance, for the court. Albert Miller & Co. v. Corte, 107 F.2d 432 (5th Cir.1939) (applying Alabama law), certiorari denied, 309 U.S. 688, 60 S. Ct. 890, 84 L. Ed. 1031 (1940); Restatement, supra, § 614, comment b. Thus, if the communication is not reasonably capable of a defamatory meaning, *965 there is no issue of fact, and summary judgment is proper.
In the case at hand, we hold, as a matter of law, that the cartoon and caption are not reasonably susceptible of the defamatory inferences Mrs. Harris alleges. The phrase "out munching" does not imply Mrs. Harris "was somewhere eating when she should have been in her classroom teaching students," nor does the cartoon suggest a racial insult. The cartoon is no more suggestive of a defamatory inference than would be an empty space where the picture of the teacher would have appeared. The only reasonable inference to be drawn from either is that a picture of Mrs. Harris was not available.
For the reasons stated herein, the judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | February 22, 1985 |
8f5dbc42-5c11-46a1-a1ad-7b6f997ed678 | Ex Parte Deerman | 466 So. 2d 1020 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 1020 (1985)
Ex parte Ronnie DEERMAN.
(Re Ronnie Deerman v. State).
84-276.
Supreme Court of Alabama.
March 8, 1985.
Michael L. Allsup and Rowan S. Bone, Gadsden, for petitioner.
Charles A. Graddick, Atty. Gen., for respondent.
SHORES, Justice.
WRIT DENIED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, EMBRY, and BEATTY, JJ., concur.
JONES and ADAMS, JJ., dissent.
*1021 JONES, Justice (dissenting).
I respectfully dissent. I would grant the writ. In my opinion the Court of Criminal Appeals erred in its application of a subjective test to determine "prejudice" under the circumstances of a given conflict of interest.
The issue: Whether the trial court committed reversible error when it failed to advise Deerman of his right to conflict-free counsel after Deerman's retained counsel made it known to the court and Deerman that he also represented the prosecution's chief witness in a pending civil case. In other words, should the trial court have declared a mistrial upon its learning that Deerman's retained counsel represented a prosecution witness in a pending civil litigation?
State and federal precedent clearly indicate that when a lawyer's dual representation of a defendant and a prosecution witness in a criminal trial creates an actual conflict of interest, in the absence of an effective waiver, the trial is fundamentally unfair as a matter of law. Zuck v. Alabama, 588 F.2d 436 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S. Ct. 63, 62 L. Ed. 2d 42 (1979); Pinkerton v. State, 395 So. 2d 1080 (Ala.Crim.App.1980), cert. denied, 395 So. 2d 1090 (Ala.1981) (and the cases cited therein).
An actual conflict has been held to exist when:
Where such an actual conflict of interests exists, a denial of the right to effective assistance of counsel exists under the Sixth and Fourteenth Amendments to the United States Constitution, without a showing of any specific prejudice. Castillo v. Estelle, 504 F.2d 1243 (5th Cir.1974); Pinkerton v. State, supra. The Castillo court, treating almost identical facts, held that the petitioner was denied effective representation where his counsel, in unrelated civil litigation, was also representing a principal witness for the prosecution. The court stated:
In the present case, Deerman's lawyer also represented the prosecution's chief witness in pending civil litigation. This fact was brought to Deerman's and the court's attention after the jury had retired for deliberations. Deerman had no knowledge of this conflict prior to that time. Therefore, there could have been no effective *1022 waiver. (The Court of Criminal Appeals noted this in its opinion.)
The Court of Criminal Appeals remanded the case to the trial court for an evidentiary hearing on whether Deerman was denied the effective assistance of counsel at trial. Upon return, after an evidentiary hearing on remand, the appellate court held:
This is a correct analysis of the law as I understand it. The opinion continues:
This analysis, however, is incorrect; not only is it inconsistent within itself, but it is inconsistent with existing case law, including the Court of Criminal Appeals' own opinion in Pinkerton v. State, supra. The existence of an actual conflict of interest deprives a defendant of the effective representation of counsel as a matter of law, without a showing of specific prejudice.
The confusion between the two quoted portions of the opinion of the Court of Criminal appeals is apparent in its expression to the effect that "presumed prejudice" can be rebutted by a factual showing that the conflict of interest is "slight" as opposed to "actual." This rationale misapplies *1023 the objective test for determining actual conflict of interest. Once this test is applied and actual conflict of interest is a "given" (indeed, this is precisely what the first portion of the Court of Criminal Appeals' opinion finds), any further inquiry into whether, as a matter of fact, counsel did all he could do to defend the accused is inappropriate.
Where all of the circumstances surrounding the relationship of the parties are undisputed, and where the facts meet the objective test for determining actual conflict of interest, as here, it is error to remand to the trial court for a factual determination of whether such conflict prejudiced the defendant. A contrary holding would permit the lawyer, whose conflict is in question, to testify, after the fact, that his dual representation in no way compromised his maximum effort on behalf of his client. Such a subjective test for determining actual conflict of interest asks the wrong question and overlooks the two essential prongs of this rule of disqualification: 1) the appearance of fairness, and 2) the client's right of informed choice.
For these reasons, I would grant the petition and issue the writ. | March 8, 1985 |
b3803269-e069-459c-9335-e30910f5e449 | Deason v. Thrash | 465 So. 2d 1118 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 1118 (1985)
Anita Y. Freeman DEASON, et al.
v.
Don L. THRASH.
83-566.
Supreme Court of Alabama.
February 8, 1985.
Rehearing Denied March 8, 1985.
John I. Cottle III of Cottle & Cottle, and James R. Bowles, Tallassee, for appellants.
C. Stephen Trimmier of Trimmier & Pate, Birmingham, for appellee.
SHORES, Justice.
This is the second appeal in this case involving a suit on a note. We reverse and remand.
The facts are not disputed, and a simple issue is involved, i.e., is Thrash still liable on the note he signed or has Freeman released him? The facts are:
W.A. Freeman operated a Ford dealership as a sole proprietorship from 1972 until 1977. In 1977, he incorporated the dealership and issued 100 shares of stock, 60 shares to himself, and 20 each to his two children, W.A. Freeman, Jr., and Anita Freeman Deason. Thereafter the Freemans sold the stock to Thrash and Walters for $131,560 and leased the premises to Thrash and Walters under a ten-year lease. In exchange for the stock, Thrash and Walters paid part of the purchase price in cash and executed and agreed to pay, jointly and severally, three separate promissory notes *1119 to Freeman and his two adult children for the balance. The note to Freeman was in the amount of $39,408, payable in monthly installments of $692.00 each. Two separate notes in the amount of $13,156 each were payable to the children. These notes were payable at the rate of $230.68 per month each. Thrash and Walters operated the business until November 1979, when Walters bought Thrash's interest. Although not material to the case, the reason Thrash sold out to Walters was that Thrash was being divorced by his wife, who is Walters's sister. Walters paid Thrash $58,000 for his interest in the business. This arrangement was worked out between Thrash and Walters. There was some testimony by each of them that their agreement was subject to Freeman's approval. As it happened, Freeman unexpectedly came by the dealership the very day they reached this agreement and, according to the testimony most favorable to Thrash's contention that he was released from his obligation on the notes, he informed Freeman that he had sold out to Walters and that Freeman should look to Walters for his money. According to Thrash, Freeman responded, "That's fine. All I want is my money."
Walters made monthly payments on the notes until April of 1980. When the suit was filed against Thrash and Walters on the notes, the balance due on Freeman's note was $32,572.30, and on the notes of each of his children the balance was $10,856.63.
The most direct way to treat this appeal is to honestly admit that the decision in the first appeal was simply wrong. The trial court was absolutely correct in its statement of the law when it observed that:
The court's reference to the transfer from Thrash to Walters relates to Mr. Freeman's agreeing to release the stock certificate registered in Thrash's name for reissuance to Walters. Freeman held it as collateral against the joint note of Thrash and Walters. He was under no legal obligation to release it, but his having done so certainly cannot as a matter of law be treated as having conferred a benefit on himself or having conferred a detriment on Thrash.
When this case was originally before us, Thrash v. Deason, 435 So. 2d 69 (Ala.1983), we inadvertently treated the appeal as if it had come from a summary judgment entered in favor of plaintiffs/payees who had brought suit on notes against the maker. As the Chief Justice pointed out in his concurring opinion, whether the impromptu response by the holders/payees of the note to the effect "that is fine" constituted a release under § 8-1-23, Ala.Code 1975, was extremely doubtful, but in view of our policy that summary judgment is inappropriate when there exists a possibility of a question of fact existing on any issue, he reluctantly concurred in the decision to reverse the summary judgment.
The appeal was, in fact, not from a summary judgment, but rather from a judgment entered after a full trial, where both sides put on evidence, and at the conclusion of which the trial court granted the motion of plaintiffs/payees for directed verdict because the defendant had not produced any evidence which would indicate a release of his obligation on the note, nor had he shown that any alleged release was based upon new consideration. We are now convinced that we should not have reversed *1120 the trial court's judgment, because there was no evidence to go to the jury on either issue. Thrash and Walters were jointly and severally liable on each note sued upon.
We have now read all of the evidence produced on the first trial and, while it could perhaps be argued that it would support an inference that Mr. Freeman's comments amounted to an oral release of Thrash, there is no evidence, not a scintilla not a gleam or glimmerof any evidence that any consideration supported it.
The cases have consistently held that new consideration to support an oral release exists only when it is shown that "something substantial which one party is not bound by law to do has been done by him, or that something he has the right to do he abstains from doing at the request of the other party." Penney v. Burns, 226 Ala. 273, 274, 146 So. 611, 612 (1933); Biggers v. Ingersoll, 236 Ala. 646, 184 So. 478 (1938).
What has Thrash done that he was not obliged by law to do in consideration of Freeman's alleged oral release? Absolutely nothing. What has Freeman requested that Thrash abstain from doing which he has a legal right to do? Again, absolutely nothing. Walters was always liable on the note. He assumed no additional liability by agreeing to pay Thrash's part. Likewise, Thrash suffered no detriment by selling his share of the business to Walters.
Thrash was paid $58,000 by Walters for his interest in the dealership. He has not shown any legal detriment to support his claim of release, nor has he shown any legal benefit flowing to Freeman. In short, the record is devoid of any evidence of consideration, and the trial court was correct in directing a verdict in favor of Freeman in the first trial, and this Court was in error in reversing the judgment there.
The judgment of the trial court is reversed, and the cause is remanded for entry of judgment consistent herewith.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur. | February 8, 1985 |
843b5f71-521b-4f97-944d-a7d6e9e4a07a | Hayden v. Robinson | 472 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 606 (1985)
James HAYDEN, Sr., Individually and as Executor of the Estate of Florence Granger, deceased
v.
Callie ROBINSON, et al.
83-1431.
Supreme Court of Alabama.
March 22, 1985.
Rehearing Denied May 24, 1985.
Harold E. Hayden, Dothan, for appellant.
J. Earl Smith, Dothan, for appellees.
SHORES, Justice.
James Hayden, Sr., appeals from a summary judgment holding that the heirs at law of Windham Granger are the owners in fee of certain real property in Henry County, Alabama. We affirm.
James Hayden, Sr., individually, and as executor of the estate of Florence Granger, filed a complaint in the Circuit Court of Henry County, naming as defendants the heirs of Windham Granger, seeking to *607 quiet title to the two parcels of property which are the subject of this litigation. A summary judgment was rendered in favor of the heirs, and Hayden appeals.
The undisputed material facts in this case show the following: Windham and Florence Granger were married on December 12, 1922, and lived together as husband and wife until the death of Windham Granger on January 22, 1963. Florence Granger was the aunt of James Hayden, Sr. She and Windham Granger raised him following the death of his mother in 1929, when he was four weeks old. He was, however, never legally adopted by them.
An undivided one-half interest in the first parcel of property that is the subject of this suit was conveyed to Windham Granger on April 6, 1954; that parcel consists of approximately 177 acres.[1] The second parcel of property that is the subject of this suit consists of approximately 25½ acres and was conveyed to both Windham and Florence Granger on December 28, 1962. They held title to that parcel as tenants in common.[2]
On January 22, 1963, Windham Granger died intestate. He was survived by Florence Granger, three brothers, and the heirs of a deceased brother and sister. His three brothers who survived him have since died, leaving heirs. Upon his death, Windham Granger's interest in the two parcels passed to his heirs at law. Some of the heirs conveyed their respective interests in both parcels to Florence Granger, making her a co-tenant with the remaining heirs as to all of the subject property.
Administration was had on the estate of her husband; however, Florence Granger did not institute any proceedings to have her dower or homestead set aside. She did continue in possession of the property. Windham and Florence Granger resided in a house located on the first parcel. Florence Granger continued to occupy this house until her death. Hayden and his family lived in the house with Florence Granger from January 1963 to June 1966, at which time he bought a mobile home and placed it adjacent to the house. He and his family have resided in this mobile home continuously since June 1966.
Florence and Windham Granger were renting out portions of the property for farming at the time of the latter's death.[3] Thereafter, Florence Granger continued to rent out portions of the property for farming and received the proceeds.
In 1967 or 1968, Florence Granger had an undetermined amount of timber on the property cut and sold, and received the proceeds from that sale.[4] During that same time period, she made repairs and improvements to the house. She made further repairs and improvements in 1976 and 1977. Annually, following the death of her husband, either Florence Granger or Hayden paid the taxes on the first parcel, which was assessed in the name of Windham Granger or his estate. Florence Granger died on December 14, 1982. She left a will wherein she devised all of the real property in which she held an interest to Hayden. At no time since the death of Windham Granger have any of his heirs actually occupied the property or paid any portion of the taxes on it.
Hayden contends that Florence Granger divested the heirs of their interest in the property pursuant to § 6-5-200, Ala. Code 1975 (statutory adverse possession). Therefore, he argues, he is now the owner in fee of all of the property by virtue of Florence Granger's will. In the alternative, he contends that he and Florence Granger adversely possessed the property for a period of 20 years so as to divest the *608 heirs of their interests under the common law doctrine of prescription.[5]
The heirs argue that a requirement necessary for the perfection of title under either theory, hostile possession, has not been satisfied, and therefore, that summary judgment was properly granted in their favor. We agree.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R. Civ.P.
Adverse possession by prescription requires actual, exclusive, open, notorious, and hostile possession under a claim of right for a period of twenty years. Downey v. North Alabama Mineral Development Co., 420 So. 2d 68 (Ala.1982). Section 6-5-200 requires the same elements, but provides further that if the adverse possessor holds under a deed or other color of title duly recorded for ten years, annually lists the land for taxation for ten years, or derives title by descent cast or devise from a possessor, he or she may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Downey v. North Alabama Mineral Development Co., supra.
Section 50, Title 34, Code 1940 (recodified as § 43-8-114, Ala.Code 1975), which was in effect at the time of Windham Granger's death, read as follows:
In Foy v. Wellborn, 112 Ala. 160, 20 So. 604 (1895), construing § 1900, Code 1886 (the predecessor of § 50, Title 34, Code 1940), the Court, quoting Null v. Howell, 111 Mo. 273, 278, 20 S.W. 24 (1892), stated:
112 Ala. at 165-66, 20 So. at 605.
In White v. Williams, 260 Ala. 182, 188-89, 69 So. 2d 847, 852 (1954), the Court noted:
In Taylor v. Russell, 369 So. 2d 537, 541-42 (Ala.1979), the Court stated:
The undisputed facts in this case show that the heirs of Windham Granger have not been divested of their interest in either parcel by statutory adverse possession or by adverse possession by prescription. Florence Granger was entitled to possession of the first parcel pursuant to her right of quarantine under § 50, Title 34, supra. Windham Granger was residing in the house located on that parcel at the time of his death. Therefore, as her dower was never assigned, Florence Granger's continued possession was, at all times subsequent to the death of her husband, permissive, unless she repudiated it by acts or declarations, unmistakably hostile, the equivalent of an abandonment or termination of the quarantine or her right to dower. It is undisputed that Florence Granger never expressly released her dower right. With respect to the first parcel, it is also undisputed that she did no more than pay the property taxes and make certain repairs and improvements to the house during the years of her occupancy between 1963 and 1982. Assuming that she also cut timber from the first parcel and rented portions of it for farming, these acts did not constitute an abandonment or termination of her quarantine or dower right. Florence Granger was entitled, under the provisions of § 50, Title 34, supra, to receive the proceeds generated from the rental of the farmland. Jay v. Jay, 289 Ala. 513, 268 So. 2d 788 (Ala.1972). The repairs and improvements that she made to the house were productive efforts and consistent with a permissive occupancy over a period of years. White v. Williams, supra.
While it is true that the payment of taxes and cutting of timber for profit have, under certain circumstances, been considered hostile acts of ownership for the purpose of establishing title by adverse possession, in this instance they are not the equivalent of a release of marital rights.
The failure of the evidence to show conclusively that the second parcel is connected *610 to the first within the meaning of § 50, Title 34, supra, precludes a determination that Florence Granger was entitled to possession of the second parcel under her right to quarantine. This notwithstanding, she was entitled to possession of the second parcel as a co-tenant with the heirs.
This Court, in Tyson v. Jackson, 364 So. 2d 1140, 1141-42 (Ala.1978), stated:
(Emphasis added.)
And, in Smith v. Persons, 285 Ala. 48, 55, 228 So. 2d 806, 812 (1968), the Court, quoting Johns v. Johns, 93 Ala. 239, 9 So. 419, observed:
It is undisputed that Florence Granger never expressly denied the heirs' title to the second parcel or their right to possess it. Therefore, any acts of ownership with respect to that parcel that she might have exercised between 1963 and 1982 would not constitute an adverse holding capable of ever ripening into a title.
Hayden has failed to prove an essential element common to both theories of adverse possession, namely, a hostile possession. Accordingly, there was no error in granting a summary judgment in favor of the heirs.
The judgment appealed from is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
[1] The evidence does not show who owned the remaining undivided one-half interest in the first parcel.
[2] The evidence does not conclusively show that the two parcels are connected.
[3] The evidence does not show whether the portions so rented were a part of the first or second parcel or both.
[4] Again, the evidence does not show from which parcel(s) the timber was cut.
[5] Hayden would tack on his time of possession subsequent to Florence Granger's death to complete the twenty years. | March 22, 1985 |
db5a4ce2-fd1a-4b4e-823a-62226023c0f9 | Ex Parte Davis | 465 So. 2d 392 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 392 (1985)
Ex parte Jack F. DAVIS, Sarah C. Allen, Alice D. Williford and Ruby J. Chancey.
(In re Jack F. Davis, et al. v. Sallie C. Davis, et al.)
84-6.
Supreme Court of Alabama.
February 8, 1985.
*393 Crawley & Jarrell, Troy, and Irvin J. Langford of Howell, Johnston & Langford, Mobile, for petitioners.
Jere L. Beasley, James W. Traeger and Sharon Yates of Beasley & Wilson, Montgomery, for respondents.
TORBERT, Chief Justice.
The plaintiffs petitioned this Court for a writ of mandamus ordering the trial judge to grant the plaintiffs a jury trial as to counts requesting damages for breach of contract and conversion, both common law actions.
On April 24, 1973, E.L. Davis, Sr. died. On June 6, 1973, all the children of E.L. Davis, Sr., executed a deed to their mother, Sallie C. Davis, of all real estate owned by E.L. Davis, Sr. The children (including plaintiffs) also executed a waiver and disclaimer giving up any rights they may have had in the estate of E.L. Davis, Sr., deceased.
The plaintiffs allege that Sallie C. Davis had represented that the transfer would decrease estate taxes and that she would retransfer the estate to the children when the estate taxes were paid.
On June 7, 1973, the will of E.L. Davis, Sr., was admitted to probate. The plaintiffs claim that the will, in effect, placed everything in trust for Sallie C. Davis and the children with Sallie C. Davis as trustee and that the conveyance on June 6, 1973, created a constructive trust which was in substance the same as the written trust under the will. The defendants claim that the will is ambiguous and that it is not clear whether the trust existed at all or whether the trust terminated prior to the death of E.L. Davis, Sr.
In 1977, Sallie C. Davis allegedly sold the estate property at less than fair market value to three of her sons, each of whom is a defendant with her in this case. The sons have sold timber from the real estate and have sold portions of the real estate itself and have failed to pay the plaintiffs, the remaining sons and daughters, any share of the proceeds.
The plaintiffs argue that their complaint alleges counts in assumpsit and conversion, on which they would be entitled to a trial by jury under Ala. Const.1901, Art. 1, § 11. The judge, however, struck the plaintiffs' demand for jury trial.
*394 The defendants argue that the plaintiffs' only causes of action are predicated on an alleged resulting or constructive trust and that these are historically creatures of equity. The defendants further claim that the causes of actions are prayers for accounting or settlement. For these reasons, the defendants argue that the plaintiffs are not entitled to trial by jury.
The causes of action are, indeed, predicated on the existence of a trust. There is no right to a jury trial on the issue of the existence or nonexistence of a trust. 50 C.J.S. Juries § 30 (1947); Drake v. Rueckhaus, 68 N.M. 209, 360 P.2d 395 (1961).
If the trial judge finds that an express, resulting, or constructive trust exists, then the plaintiffs are entitled to a jury trial on their counts in assumpsit and conversion, those counts being common-law counts for legal remedies. Any legal issue for which a jury trial is timely and properly demanded should be submitted to the jury. Finance, Investment and Rediscount Co. v. Wells, 409 So. 2d 1341 (Ala.1982); Crommelin v. Fain, 403 So. 2d 177 (Ala. 1981); Rules 38 and 39, Alabama Rules of Civil Procedure. See also, Dairy Queen v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959).
The defendants cannot complain that the counts in assumpsit and conversion are actually prayers for accounting or settlement, because the beneficiary of a trust can elect whether to seek a legal or equitable remedy. See Ex parte Morton, 261 Ala. 581, 75 So. 2d 500 (1954) (on rehearing); 25 Am.Jur.2d Election of Remedies § 30 (1966); 76 Am.Jur.2d Trusts § 253 (1974); G. Bogert, Trusts and Trustees, § 861 and § 946 (2d ed. revised 1982).
We hereby order the trial judge to grant the plaintiffs a jury trial as to the assumpsit and conversion counts.
WRIT GRANTED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur. | February 8, 1985 |
bf479d97-79f6-413d-87f1-bd8f585d4d2c | Banks v. Zippert | 470 So. 2d 1147 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1147 (1985)
Ralph R. BANKS, Jr.
v.
John ZIPPERT.
83-1004.
Supreme Court of Alabama.
March 22, 1985.
Rehearing Denied May 10, 1985.
Michael D. Smith of Hall, Clark & Smith, Eutaw, and Clifford Fulford of Fulford, Pope & Natter, Birmingham, for appellant.
John H. England, Jr. of England & Bivens, Tuscaloosa, for appellee.
PER CURIAM.
Appellant Ralph R. Banks, Jr., appeals from the judgment of the Probate Court of Greene County, Alabama, declaring the office of district judge of Greene County vacant, pursuant to an election contest filed by appellee John Zippert. We affirm.
Richard Osborne and Ralph R. Banks, Jr.,[1] were candidates for the office of district judge of Greene County in the Democratic primary election held September 7, 1982. Osborne was the victor and was certified as the party's nominee. No other party nominated candidates for that office.
On October 12, 1982, Banks learned that Osborne had been convicted of larceny in the municipal court of Montgomery in 1969, when Osborne was twenty-one years old. *1148 When he registered to vote in 1981, Osborne disclosed that he had been convicted of larceny and fined. On October 14, 1982, Banks notified the State Democratic Executive Committee that Osborne was disqualified from being a candidate for public office because of the previous larceny conviction and requested that he be made the party's nominee.
The Committee set a hearing on the matter, but on October 27, 1982, decided not to pursue it.
On October 28, 1982, Banks's son, Ralph Banks III, filed suit in Greene County Circuit Court in his capacity as a qualified voter, taxpayer, and resident citizen of Greene County, seeking a preliminary injunction and declaratory relief. The hearing on the preliminary injunction was set for November 1, 1982, but when that day came and service had not been obtained on Osborne, an application for a temporary restraining order was filed in open court. The court, without addressing the issue of Osborne's qualification, granted a temporary restraining order, restraining the defendant members of the Board of Supervisors for Greene County for the November 2, 1982, general election and members of the Board of Registrars for Greene County from posting, publishing, or certifying election results for the office of district judge, pending a hearing on the merits. The next day, November 2, 1982, Osborne received 2,672 votes in the general election. Banks, though not on the ballot, received 626 write-in votes.
Service was obtained on Osborne on November 5, 1982. In his answer, Osborne denied that he was ineligible to hold the office and alleged that the complaint should be dismissed. He admitted, however, that he had stolen automobile hub caps in the City of Montgomery and had been convicted of larceny. On November 19, 1982, following a hearing on the merits, the trial court ruled Osborne "ineligible to and disqualified from holding the office of District Judge" because of the larceny conviction. The trial court further permanently enjoined Osborne's certification as the newly-elected district judge.[2]
The 626 write-in votes received by Banks in the general election were later certified to the Secretary of State by the Greene County Board of Supervisors, and on December 20, 1982, Banks was officially declared the elected district judge of Greene County. On December 28, 1982, John Zippert, in his capacity as a qualified voter in the general election, filed a statement of contest with the Probate Court of Greene County, pursuant to § 17-15-27, Ala.Code 1975, seeking to void the November 2, 1982, general election, contending, first, that the Board of Supervisors for Greene County had certified only those votes cast for Banks and failed to certify those votes cast for Osborne, and, second, that the votes cast for Osborne were legal votes, were illegally rejected, and, had they not been so rejected, would have increased the number of legal votes for Osborne above those received by Banks.
The probate court initially set the contest for trial on February 8, 1983. The case was subsequently continued by agreement, and trial commenced on February 15, 1983. The trial was continued from time to time thereafter until the date of the final hearing on June 1, 1984, when the probate court ruled that the 2,672 votes cast for Osborne in the November 2, 1982, general election, while ineffective to elect him to the office, were legal votes, were illegally rejected, and should have been counted and considered in determining the result of the election. It then rendered judgment voiding that election because of the disqualification of Osborne, who had received the majority of the legal votes cast therein, and certified to the Governor that the office was vacant. Banks appeals.
Banks contends that the probate court was without authority under § 17-15-32, Ala.Code 1975, to declare the November 2, 1982, general election void and certify to *1149 the Governor that the office of district judge was vacant. We disagree.
Section 17-15-32, supra, reads as follows:
State v. Stacy, 263 Ala. 185, 82 So. 2d 264 (1955), controls here. There, the Court, construing § 250, Tit. 17, Code 1940 (the predecessor of § 17-15-32, supra), stated:
263 Ala. at 186-87, 82 So. 2d at 265-66.
Osborne's disqualification in the November 2, 1982, general election required that that election be declared void as a matter of law. Pursuant to § 17-15-32, supra, the probate court declared the general election void and certified that fact to the appointing authority. The probate court was, therefore, acting within its statutory authority.
Banks also contends that the judgment of the probate court is void for lack of jurisdiction because the case was not set for trial and tried to completion within the period prescribed by statute. Again, we disagree. Section 17-15-27, Ala.Code 1975, in pertinent part, states as follows:
The statement of contest was filed by Zippert in the probate court on December 28, 1982, and a trial date was set for February 8, 1983, forty-two days from the filing of the statement and within the statutory period. We note that the case was continued by agreement and trial commenced on February 15, 1983, forty-nine days from the filing of the statement and still within the period prescribed by the statute. The probate court was not divested of jurisdiction by its discretionary continuation of the case beyond the statutory period.
Other errors argued by the appellant are without merit. Therefore, the judgment of *1151 the probate court is due to be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
[1] Ralph R. Banks, Jr., was the incumbent Greene County district judge.
[2] Osborne appealed, and the judgment of the trial court was later affirmed by this Court on September 30, 1983. Osborne v. Banks, 439 So. 2d 695 (Ala.1983). | March 22, 1985 |
4dc71043-0104-4c30-8ee8-2455da50e551 | Bond v. Trim-Line, Inc. | 465 So. 2d 365 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 365 (1985)
Robert L. BOND, Sr.
v.
TRIM-LINE, INC.
83-174.
Supreme Court of Alabama.
February 8, 1985.
Joel W. Ramsey of Ramsey & Baxley, Dothan, for appellant.
Dow T. Huskey of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellee.
EMBRY, Justice.
This appeal is from a summary judgment in favor of Trim-Line, Inc. (Trim-Line), and against Robert L. Bond, Sr., the plaintiff below. The question on appeal is whether *366 summary judgment was appropriately granted.
The underlying facts are as follows: Robert Bond and Trim-Line, Inc., entered into a "Sales Distribution Agreement" on 5 March 1976. That agreement gave Bond a license to use the trade name "Trim-Line" in the operation of a distributorship. Bond's territory, as defined by that agreement, covered, roughly, the southern one-half of the State of Alabama, excluding Mobile, Alabama.
During the following several years, Bond sold portions of his business and Trim-Line extended to Bond's buyers the right to use the trade name "Trim-Line." New distributorships were thereby created. The practical effect of these sales was to carve areas out of Bond's "territory," as that was defined by his 1976 agreement with Trim-Line. As each new territory was created by these sales, it was given a name to distinguish it from Bond's territory (e.g. "Trim-Line of East Alabama," and "Trim-Line of Selma").
In January of 1981, Bond sold a portion of his business to Lee G. Stephens. In March of that year, Stephens was approved by Trim-Line as a distributor. Her distributorship was named "Trim-Line of South Alabama." Stephens operated that business until the following September, at which time she sold it back to Bond. Payment under the contract of sale was to be made in installments.
The events which transpired after Stephens's sale of her business to Bond are the subject of this controversy. Each party's version of those events will be set forth below. What is not controverted is that, on 5 November 1981, Lee Stephens changed the locks on the door of the business offices of Trim-Line of South Alabama, changed the utilities from Bond's name to hers, and "escrowed the cash, checks and accounts receivable."
Bond subsequently filed suit against Trim-Line and Stephens, alleging both defendants acted to convert the assets of his business, and that Trim-Line intentionally interfered with the contract of the sale of Stephens's business to Bond. Summary judgment was granted in favor of Trim-Line as to both issues. The allegations of Bond, Stephens, and Herb Berg (as Trim-Line's representative) are set forth below.
Bond contends that, prior to his purchase of Stephens's business, in September of 1981, he had a telephone conversation with Herb Berg, Trim-Line's Distributor Development manager, in which Berg assured him that he would be approved as the distributor for Trim-Line of South Alabama upon his purchase of the territory from Stephens.
During that same month, a dispute arose concerning the ownership of "Trim-Line of Alabama," a Montgomery distributorship which Bond had formerly owned and had, allegedly, sold without informing Trim-Line. Bond contends that, on 25 September 1981, Berg suggested that, in light of the threat of litigation concerning that distributorship, Bond "might be wise not to own any distributorship of Trim-Line." He alleged he and Berg agreed that the distributorship called "Trim-Line of South Alabama" remain in Stephens's name, with the understanding that the paperwork would be completed and that Bond be officially named the distributor for that area when the dispute was resolved.
In support of his allegation that he was, in fact, recognized by Trim-Line as its distributor, Bond presents evidence that Berg corresponded with him at the business address of "Trim-Line of South Alabama" in September of 1981, and that he, Bond, placed orders with Trim-Line for materials which were shipped to the business after he had bought it back from Stephens.
Bond further contends that, at the time Lee Stephens entered the business offices of Trim-Line of South Alabama and confiscated the assets of the business, she represented to him that she was acting with the knowledge and authority of Herb Berg. Bond states, by affidavit, that Berg admitted to him, in a telephone conversation, on *367 11 November 1981, that he directed Stephens's actions.
Herb Berg, Trim-Line's Distributor Development Manager, contends he was unaware Lee Stephens had sold her business to Bond and that Trim-Line never verbally authorized Bond as the distributor for Trim-Line of South Alabama after Bond's sale of his distributorship to Stephens. Berg states he was informed by Stephens that Bond had approached her concerning the purchase of Trim-Line of South Alabama on 5 October 1981. He contends his next conversation with Stephens was on 12 October 1981 when she called to tell him Bond had attempted to take over her business against her will.
Stephens contends that Berg encouraged her to "get her distributorship back" after the dispute over the Montgomery distributorship arose. She states however, that Berg did not advise her to convert or appropriate any assets, personal property, accounts receivable, inventory, or equipment of Trim-Line of South Alabama.
First, we consider whether summary judgment was appropriately granted as to Bond's allegations of conversion by Trim-Line. Trim-Line contends that, because there was no agency relationship between it and Stephens, even if Stephens had converted the assets of Trim-Line of South Alabama, it would not be liable. It points to the terms of the Sales Distribution Agreement entered into with Stephens by Trim-Line which expressly disavows any agency relationship.
Where the rights of a third party are at stake, the terms of a contract are not the controlling or governing factors where they are in conflict with the actual facts and the way in which the contract was actually performed. Rust Engineering Co. v. State, 286 Ala. 589, 596, 243 So. 2d 695 (1971). Therefore, if Bond has presented any evidence that Stephens acted as an agent for Trim-Line, there is an unresolved question of fact remaining.
The test of whether a relationship is that of independent contractor as opposed to master and servant is whether the alleged master has the reserved right of control over the means and agencies by which the work was done or the result produced. Whether one is the agent of another is generally a question of fact; summary judgment is seldom appropriate as to that issue. Moses v. American Home Assurance Co., 376 So. 2d 656 (Ala.1979).
Because there is evidence that Stephens's actions were motivated by a conversation with Herb Berg, we cannot agree with the trial court that summary judgment in favor of Trim-Line was proper as to the issue of conversion. A factual issue remains as to the question of agency.
Neither can we say as a matter of law that Trim-Line could not be liable to Bond for the conversion of his property. Trim-Line has simply not, as to the conversion claim stated in count one, met its burden of showing the absence of any genuine issue as to all material facts under all applicable principles of substantive law. Bennett v. United Auto Parts, Inc., 294 Ala. 300, 315 So. 2d 579 (1975).
Second, we consider whether the trial court erred by granting summary judgment as to Bond's count two, which alleged interference by Trim-Line with the contract between Stephens and Bond for the sale of Trim-Line of South Alabama. Under Alabama law, mere interference is not sufficient to create a cause of action for tortious interference with contract rights; to be actionable, interference must be wrongful, malicious, unlawful, or unjustified. Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), cert. denied, 440 U.S. 908, 99 S. Ct. 1215, 59 L. Ed. 2d 455 (1979); Hennessey v. National *368 Collegiate Athletic Ass'n, 564 F.2d 1136 (5th Cir.1977).
Bond has presented evidence that Trim-Line recognized him as its distributor for the area served by Trim-Line of South Alabama subsequent to Stephens's sale of the business back to him in September of 1981. Both Stephens and Bond state that Berg, as Trim-Line's representative, urged Stephens to get her distributorship back. There is evidence supporting Bond's allegation that Berg knew of the contract of sale between Bond and Stephens and encouraged Stephens to breach her contract of sale with Bond. There is no evidence any interference by Berg with Bond's rights under his contract with Stephens was justified. Because Bond has stated a cause of action against Trim-Line for intentional interference with contract and because there is evidence to support Bond's claim, the trial court erroneously granted summary judgment as to that count.
Therefore, for the above stated reasons, we must reverse the trial court's grant of summary judgment in favor of Trim-Line, Inc., and remand to that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | February 8, 1985 |
9a8c32db-116b-4156-8302-9fdae84fdf29 | Etheridge v. Yeager | 465 So. 2d 378 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 378 (1985)
Louise ETHERIDGE
v.
Benjamin White YEAGER, et al.
83-788.
Supreme Court of Alabama.
February 8, 1985.
Jack W. Meigs of Hellums & Meigs, Centreville, for appellant.
Curtis W. Gordon, Jr. and Robert C. Sutton, Birmingham, for appellees.
*379 BEATTY, Justice.
Following an ore tenus hearing, the Circuit Court of Bibb County entered a judgment holding that Louise Etheridge was not the common law wife of Joe Yeager, and setting aside letters of administration theretofore granted to her by the Probate Court of Bibb County. Etheridge appealed from that judgment. We affirm.
Ms. Etheridge, claiming to be the widow, petitioned the Bibb County Probate Court for letters of administration on the estate of Joe Yeager. That court granted the letters. Shortly thereafter, however, the brother and sisters of Joe Yeager filed a contest of her letters and petitioned for the removal of the administration to Bibb Circuit Court. That petition was granted, and an ore tenus nonjury hearing ensued. After the entry of the final order, Ms. Etheridge moved for a new trial on the basis of newly discovered evidence. That motion was denied. She then appealed, raising two issues:
(1) Whether the trial court was plainly and palpably wrong in holding that Louise Etheridge and Joe Yeager were not husband and wife under common law; and
(2) Whether the trial court erred in denying the motion for a new trial.
A summary of the evidence will suffice to disclose its divided nature.
On the one hand, Ms. Etheridge's evidence was that she began living with Yeager after her (first) husband had died and Yeager had been divorced from his second wife. They lived together continuously from 1970 until Yeager's death in 1982. Ms. Etheridge produced mail she had received as Mrs. Joe Yeager. Three neighbors testified that they thought Joe and Louise were married, because Joe had referred to Louise as his wife, and that their general reputation in the community was that of husband and wife. Evidence was produced that Louise was listed as part of the household on Yeager's application for food stamps. Yeager's nephew and Louise's two daughters testified that they thought Louise and Joe were married.
The contestants' evidence showed, however, that Louise kept a bank account in the name of Etheridge, and that in 1982 she had registered to vote under the name of Etheridge. Each of the contestants testified that when they asked Joe if he and Louise were married he replied that he was not going to marry anyone. There was some evidence that Joe had told Louise that he did not want her to sign her name as "Yeager." Louise herself testified to her belief that they were married because, she said, "I lived with him long enough." Joe Yeager's application for food stamps did not list Louise under the box marked "spouse" provided in the form, but in the category of "member of household." The food stamp representative testified that Yeager had listed, as members of his household, himself and Annie J. Etheridge, and that he had stated that "he and Ms. Etheridge lived together as man and wife." This representative later explained that her testimony was based upon her summation of their interview, and that she could not state that those were his exact words.
There have been a number of expressions from this Court setting forth the requirements for a common law marriage. In Skipworth v. Skipworth, 360 So. 2d 975, 976 (Ala.1978), this Court stated:
Piel v. Brown, 361 So. 2d 90, 94-95 (Ala. 1978), also explores the requirements:
In Goodman v. McMillan, 258 Ala. 125 at 130, 61 So. 2d 55 at 59 (1952), this Court repeated the principle that:
That opinion added at 258 Ala. 131, 61 So.2d 60:
After hearing the ore tenus testimony and reviewing the conflicting evidence, the trial judge decided that there was a lack of present intent to be married. The scope of this Court's review, then, is first to determine if the record contains any competent evidence supporting the trial judge's final decree. Humphrey v. Humphrey, 293 Ala. 118, 300 So. 2d 376 (1974). There was evidence supporting the decree, the bank account and voter registration in the name of Ms. Etheridge; testimony that the defendant and the deceased had both stated that they were not married when asked by the plaintiffs; and Yeager's own statements. The undisputed fact that Louise and Joe lived together from 1970 until his death is not alone enough to establish the "requisite mutual intent" required by law. Id.
In Alabama, a judgment rendered in a nonjury case tried ore tenus is accorded a presumption of correctness that can only be reversed if "plainly and palpably wrong." Kwick Set Components, Inc. v. Davidson, 411 So. 2d 134 (Ala.1982). The evaluation of oral testimony is within the power of the court as trier of fact, Smith v. Holloway, 262 Ala. 273, 78 So. 2d 318 (1955), with the court having the responsibility to decide the credibility and correctness of that testimony. Underwood v. Jarvis, 358 So. 2d 731 (Ala.1978). Furthermore, "[i]t is not the province of this court *381 to substitute its judgment for that of the trier of facts unless his findings are palpably wrong." Forest Investment Corp. v. Commercial Credit Corp., 271 Ala. 8, 12, 122 So. 2d 131, 134 (1960). Since there was evidence which supported the trial court's finding of no common law marriage, and since that finding is not plainly and palpably wrong, that judgment will not be disturbed on appeal.
The newly discovered evidence asserted as a ground supporting Ms. Etheridge's motion for a new trial consisted of a determination by the Veterans Administration, sometime after the trial, that she was entitled to benefits as the widow of Joe Yeager. With deference to able counsel's arguments, this evidence was cumulative, did not refute the evidence supporting the trial court's decision, and has not been shown likely to change the result if a new trial were granted. See Forest Investment Corp., supra.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | February 8, 1985 |
4c39cc3d-b606-433c-9623-99efad4e58b5 | STATE FARM FIRE & CAS. CO. INC. v. Ponder | 469 So. 2d 1262 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1262 (1985)
STATE FARM FIRE & CASUALTY COMPANY, INC.
v.
Joe A. PONDER & Seretha K. Ponder.
83-55.
Supreme Court of Alabama.
February 15, 1985.
Rehearing Denied April 5, 1985.
Ralph Gaines, Jr., Talladega, for appellant.
Charles L. Parks, Anniston, and Betty C. Love, Talladega, for appellees.
PER CURIAM.
This is an appeal by Defendant, State Farm Fire & Casualty Company, Inc. (State Farm), from a judgment based on a jury verdict in favor of Plaintiffs, Joe A. and Seretha K. Ponder, in their action for breach of contract and fraud.
On August 8, 1980, State Farm issued a homeowners policy on the dwelling of Plaintiffs, Joe and Seretha Ponder, in the amount of $70,000. During the thirteen-month interval to the date of the loss, the policy coverage increased to $74,430 on the dwelling and $40,810 on the contents. On September 19, 1981, the house and its contents were totally destroyed by a fire.
The policy provided the following:
A dispute arose between the Ponders and State Farm regarding the insurer's obligations under the policy, and this action ensued. Although the Ponders' original action included multiple claims against multiple defendants, the verdict rendered for Plaintiffs was against State Farm only on the breach of contract claim in the amount of $25,000. State Farm's post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, was denied.
The principal question in this case deals with the amount of money actually paid to the policyholders contrasted with the amount due from the company.
According to the evidence, State Farm's adjuster visited the scene of the fire on September 20, 1981, and paid the Plaintiffs $1,000 toward additional living expenses. Later, on October 27, 1981, Plaintiffs were paid another $1,000 additional living expenses, and on November 24, 1981, the adjuster paid an additional $5,000 as living expenses. According to State Farm, these amounts were coded and credited to "contents loss," since the Plaintiffs had no receipts, as required by the policies, for additional living expenses at the time of payment.
State Farm obtained an estimate of the cost of replacement from a contractor, one Frank Shaddix, in the amount of $58,444.84. On December 15, 1981, the Plaintiffs were paid $61,680.77 for the dwelling loss. This figure included the Shaddix bid, debris removal, and damage and destruction to trees and shrubbery. On that same day, they were paid $21,450.45 for loss to their contents. This payment made the total contents loss paid the sum of $28,450.45. On three separate dates, Plaintiffs were paid a total of $4,253.22 under Coverage CAdditional Living Expenses.
The evidence discloses that Joe Ponder rejected the bid from Shaddix, the contractor, saying, "I told [the claims superintendent] flat out that Shaddix was not building my house back. If anybody built the house back, it would be me." Joe Ponder obtained estimates from a Mr. Hammonds and a Mr. Byrdboth estimates were higher than the Shaddix bid. He said, however, that neither of them was going to build the house, because he was going to build it back himself. He also testified that the claims adjuster told him that if "you build that house back and you spend more money than the $58,444.84 that we paid you, and you presented bills to him, that he would give it consideration to see what would be done."
The Ponders began to rebuild their house. At the time of trial, they were living in it and had spent approximately $30,000. Joe Ponder testified he could finish the house for about $15,000, and that, "I was also told if the house I am currently building costs more to build than they had paid me, that at that time he would reevaluate my case and there was a possibility of extending ... coverage to us for the full max of the policy."
It is State Farm's contention that Plaintiffs accepted payment from State Farm in the sum of $61,680.77 on the house loss. It contends that the payment accepted by Ponder was $15,000 more than Ponder himself *1264 testified he had spent and would spend in replacing the house.
State Farm cites the policy's provisions, Section 1, "Conditions," 3c.(1)(c):
It is State Farm's contention that the only reasonable and logical interpretation to be placed on these policy provisions is that replacement is anticipated. State Farm contends that Joe Ponder did, in fact, replace the house, and that he was entitled under the policy to be paid the replacement cost, which by his own testimony was approximately $45,000$30,000 of which he had already spent and $15,000 more than he needed to complete the building. According to State Farm, he was actually paid $61,680.77, or $16,680.77 more than the amount at which he established the replacement cost.
State Farm, citing Commercial Union Ins. Co. v. Ryals, 355 So. 2d 684 (Ala.1978), and Reliance Ins. Co. v. Substation Products Corporation, 404 So. 2d 598 (Ala. 1981), maintains that the Ponders never proved any actual cash value, although there was testimony as to replacement cost, and that they were paid more than the replacement cost specified by them.
The Plaintiffs' position is directly contrary to that of Defendant. Plaintiffs state that the only controversy presented to the jury was based on the payments under Coverage A for loss of the dwelling and on the payments under Coverage B for loss of contents. They do not dispute either the $58,444.84 sum paid under Coverage A or the $28,450.45 sum paid under Coverage B. According to Plaintiffs, the total sum in controversy is the difference between the amounts claimed under Coverages A and B (totaling $114,743.30) and the amounts paid thereunder (totaling $86,895.29), that sum being $27,848.01.
Plaintiffs contend that under the terms of the insurance policy they were entitled to recover the actual cash value of the house which was destroyed and the actual cash value of the destroyed contents. In other words, Plaintiffs say that they had the option of disregarding replacement costs in making their claim for a loss under Coverage A, the house. They maintain that after the total destruction by the fire they began construction of another house by utilizing the $58,444.84, which State Farm had paid them under Coverage A. Moreover, they say that at the time of the trial they had spent $30,000 constructing the house and had not completed it. Plaintiffs argue that notwithstanding the conditions under paragraph 3c.(1) of the policy, the explicit language of paragraph 3c.(3) repudiates the insurer's contention. This provision is as follows:
According to Plaintiffs, this paragraph expressly permits them to disregard the very section in the policy on which the Defendant relies and to make their claim under Coverage A on an actual cash value basis. In other words, the Plaintiffs say that this provision applies where an insured wishes to convert his loss to cash and spend substantially less money in the construction of another dwelling.
Moreover, Plaintiffs say there was an abundance of testimony at the trial from which the jury could establish the actual cash value of the house at the time of the loss. Plaintiffs say the house which was destroyed contained 3,056 square feet and was built by Plaintiff Joe Ponder, utilizing the highest quality materials. Ponder testified that when construction was completed in July of 1980 he had spent approximately *1265 $70,000 on the structure. Defendant insured the premises under a homeowners policy on August 8, 1980, in the sum of $70,000. During the next 13 months, the face value of the policy increased to $74,430, and 13 months after the policy was issued the house and its contents were totally destroyed by fire.
The court admitted into evidence during the trial two itemized estimates which established the cost of replacing the house as being in excess of $80,000. The Plaintiffs maintain that the evidence was such that the jury could reasonably have concluded that the house had appreciated due to inflation faster than it had depreciated due to age and that the actual cash value of the Plaintiffs' house at the time of the loss was equal to or in excess of the $74,430 face value of the policy. Hence, according to Plaintiffs, an award under Coverage A of the policy of up to the $15,986 difference between the face value under Coverage A and the amount actually paid by Defendant under Coverage A can be sustained as an award of the actual cash value of Plaintiffs' loss under Section 1, "Conditions," 3c.(3).
Plaintiffs also contend that, although they were entitled to the actual cash value of the destroyed contents under Coverage B, the jury rejected both the amount claimed ($40,313.30) and the amount paid ($28,450.45). In fact, say the Plaintiffs, the jury, allowing a nominal depreciation, fixed the award for the destroyed contents at an additional amount of $9,014.00; and this sum, when added to the $15,986.00 difference due under Coverage A, totals the verdict award of $25,000.
Three issues are presented:
I. Did the trial court err in denying Defendant's motion for directed verdict on the contract action?
II. Did the trial court err in overruling Defendant's objection to admission into evidence of the statement under oath taken of Plaintiff Joe Ponder as provided in the insurance policy?
III. Did the trial court err in refusing to grant Defendant's motion for mistrial after counsel for Plaintiffs, on ten different occasions, made inflammatory and prejudicial statements to the jury in closing argument, to which objections were sustained?
Citing Huggins v. Hanover Ins. Co., 423 So. 2d 147 (Ala.1982), the insurer summarizes its position thusly:
*1266 The insurer's contention that once the insured elected to rebuild he was "locked into a replacement cost basis" is a misunderstanding of Huggins. Indeed, such a contention is directly contrary to the express language of the contract. When subparagraphs (2) and (3) of paragraph 3c. are read together, it is clear that the insured's right to claim actual cash value is unaffected by his choice to rebuild his house. To be sure, what is contemplated is that, ordinarily, actual cash value will be less than replacement cost; thus, the insurer will first pay the lesser amount; and then, upon completion within 180 days after the loss, will pay the difference between actual cash value and replacement cost, not to exceed the policy limits.
Any other interpretation makes a mockery of the overall coverage afforded by the policy. Under the insurer's position, if an insured replaces a $100,000 house with a $50,000 house (a hypothetical not unlike the instant case), because the replacement cost is the lesser of the two sums, he cannot recover the greater. But suppose the insured called upon the insurer to "pay the actual cash value of the damage until actual repair or replacement is completed," pursuant to paragraph 3c.(2), and the insured then rebuilds a smaller house costing $50,000.00, is he obligated to return the $50,000.00 difference? This question is self-answering; and the negative reply to that question compels our resolution of the directed verdict issue adversely to the Appellant.
Replacement cost is a relatively new addition to homeowners policies. Its coverage is provided in clear, unambiguous language. It is an additional coverage, or, perhaps, more accurately, an additional optional coverage offered the insured. If his house is destroyed, he can rebuild it, within the limits of the coverage, even though the cost may exceed the actual cash value of the insured dwelling. There is absolutely nothing in the policy language, however, that requires the insured to forfeit the actual cash value coverage if he elects to forgo the optional replacement cost. Under our hypothetical (completely analogous here), it was the insured house (five bedrooms, three baths) that suffered the loss, not the two-bedroom, two-bath house that was rebuilt.
Huggins is clearly distinguishable on its facts. There, the insurer paid the insureds the actual cash value of their destroyed home. The insureds were claiming the difference between the amount paid and the face value of the policy. The language in Huggins dealing with replacement cost was unnecessary to its holding.
Although Appellant states this issue in terms of "admissibilty," its brief and the oral argument of counsel narrow the issue to whether the trial court erred in permitting a sworn statement, given to the insurer by Joe Ponder before suit, to be taken by the jury during its deliberations. Citing Ott v. Fox, 362 So. 2d 836 (Ala.1978), Appellant contends that this sworn statement (essentially a listing of contents and the cost of each item) is analogous to a deposition, and thus should not have been permitted to go to the jury room.
Admittedly, Ott so holds with respect to depositions read into evidence. It is the substance of the deposition that is properly admissible, not the document on which it is transcribed. National States Ins. Co. v. Jones, 393 So. 2d 1361 (Ala.1980). But, as Ott makes clear, where the admitted item or document is itself evidence, the policy reasons for precluding the transcribed document containing the deposition do not obtain:
The sworn statement here in question, which was not read to the jury but offered *1267 as evidence of compliance with certain policy provisions relating to a loss claim, was admissible; and the trial court did not err in sending it, along with other documentary evidence, to the jury room during the jury's deliberations.
The jury argument of Plaintiffs' counsel, here complained of as improper and prejudicial, is essentially referable to the Plaintiffs' fraud claim that was submitted to the jury along with their contract claim. Because the jury rejected Plaintiffs' fraud claim, and because Appellant does not challenge the contract award as being excessive, we find no reversible error with respect to this issue.
AFFIRMED.
MADDOX, FAULKNER, JONES, ALMON, SHORES and ADAMS, JJ., concur.
TORBERT, C.J., concurs specially.
EMBRY and BEATTY, JJ., dissent.
TORBERT, Chief Justice (concurring specially).
I concur in the majority opinion. The pertinent provisions of the insurance policy at issue clearly indicate that the loss settlement provisions did not restrict the insured merely to recovery of repair or replacement cost. Subparagraph (3) of paragraph 3c. specifically states that the insured "may disregard the replacement cost loss settlement provisions." Moreover, subparagraph (3) provides that should the insured disregard replacement cost and make claim on an actual cash value basis the insured may then make claim for any additional liability on a replacement cost basis within 180 days after the loss. This language controls the disposition of this case. Thus, in accordance with the express terms of the policy, the insured was not required to base a claim for benefits on the replacement cost loss settlement provisions, but rather was entitled to disregard those provisions and make claim for the actual cash value of the loss.
BEATTY, Justice (dissenting):
In a case such as this, the language of the policy must control, and it is abundantly clear that this policy contemplates replacement. Each and every loss settlement provision concerning buildings makes reference to replacement. In issuing this policy, State Farm agreed to replace or repair the Ponders' home, should it be damaged. State Farm did not agree to act as a real estate broker and, in effect, purchase the Ponders' house at whatever value the Ponders sought to place on it. The object of an insurance policy of this type is to indemnify the homeowner in case of a loss; it is not intended to provide him with the profit he may have obtained by selling the house at its market value.
The majority states that Huggins v. Hanover Ins. Co., 423 So. 2d 147 (Ala.1982), is distinguishable on its facts from the present case. However, Huggins is clearly analogous to this case. In Huggins, this Court considered the effect of policy provisions almost identical to those contained in this State Farm policy. In that case, the Hugginses acted as their own contractors in building their house. Before it was completed, it was totally destroyed by fire. Hanover had insured the house against fire loss, limiting its liability to $120,000. Huggins set out the settlement provisions of that policy:
About one month following the fire, the Hugginses contracted to purchase a new home at another location for $79,000. Two months later, Hanover's adjuster presented them with a breakdown of the recovery available as follows:
423 So. 2d at 149. Hanover offered an actual cash value settlement of $85,000, which, a short time later, the Hugginses accepted.
Later, the Hugginses sued Hanover to recover an additional $34,900 under the policy, claiming the difference between the full amount of liability on the policy and the amount paid by Hanover, less the deductible. In other words:
The trial court granted a directed verdict for Hanover, and, on appeal, this Court affirmed the trial court's decision. Applying the provisions of the policy, this Court held that recovery would be the smallest of the following: (1) under c.1(a) recovery would be $120,000 (the limit of liability); (2) Under c.1(b) recovery would be $106,366.21, if the building were rebuilt on the same premises (replacement cost for equivalent construction on same premises); (3) under c.1(c) recovery would be $79,900.00, if the new home purchased by the insureds was a "replacement" for the destroyed home.
This Court added at 423 So.2d 150:
The Court then found that when the Hugginses contracted to purchase their new home it became a "substitute," and thus a "replacement" under the settlement provisions.
It is significant for the purposes of the instant case that the insureds in Huggins argued that under subparagraph (5) (actual cash value before replacement), which is identical to paragraph 3c.(3) in the present case, an insured could claim loss by procuring "a competent estimate from a contractor and then us[ing] it to claim loss." This *1269 Court rejected that argument, stating at 151:
Thus, this Court in Huggins found that Hanover owed no additional amount.
In Huggins, the new house was a replacement, even though it was located at a different site. Here, Ponder rebuilt his house on the same site, so that it is obviously a replacement. The principles announced in Huggins should be applied to this case.
The settlement provisions of the instant policy begin with these phrases:
Thereafter follow the provisions which have been held to be conditions precedent to the insurer's duty to pay repair or replacement costs of an insured building.
In this case, paragraph 3c.(1), is intended to limit the insurer's liability to the maximum of the policy limits. That is, if the replacement cost exceeds the policy limits, then the policy limit is the amount the insurer is obliged to pay. On the other hand, if either the replacement cost or the actual amount spent is less than the policy limits, that amount is the company's liability. If both the replacement cost and the actual amount spent are different, then under the policy the lesser of these two amounts is the amount owed the insured.
Paragraph 3c.(3), allowing the policyholder to disregard the replacement cost loss settlement provisions and claim actual cash value, permits the policyholder to make later claim for additional liability on a replacement cost basis if he chooses to do so. Thus, if the insured did rebuild, his recovery would be made on a replacement cost basis. Huggins, supra, at 151.
Applying the settlement provisions of paragraph 3c.(1)(a) to these facts, the amount the Ponders were entitled to would be the smallest of: $74,300.00 (the limit of liability); under 3c.(1)(b), $61,680.77 (replacement cost for equivalent construction on the same premises, based upon the estimate of Frank Shaddix, a local contractor this sum includes replacement cost of $58,444.84; $1,980.00 for removal of debris; and $1,255.93 for damage to shrubbery and trees); under 3c.(1)(c), $45,000.00 actually spent to replace the building (based upon the insureds' own testimony on the actual cost$30,000.00 plus $15,000.00 to complete the building). Thus, the Ponders were entitled to the least of these three *1270 amounts, or $45,000.00.[1] They were paid $61,680.77. State Farm, therefore, has met its obligation. The Ponders' argument that they only applied for a payment under paragraph 3c.(3) for actual cash value is unavailing under these facts because "[t]his provision was not intended to allow for recovery of replacement cost without repair or replacement." Huggins at 151. When plaintiffs replaced, therefore, they came within the loss settlement provisions of paragraph 3c.(1)(a), (b), and (c).
In actuality, the Ponders have received some $16,000 more than the amount to which they were entitled. While it was certainly the Ponders' prerogative to replace the house destroyed in the fire with a less expensive dwelling, their policy does not entitle them to force State Farm to purchase their damaged house and provide them the profit they might have obtained by selling it.
It is also a curious result that those concurring in Huggins, where the language in the fire insurance policy was identical to that contained in this policy, now concur in an opposite construction of that language. The answer must be one involving prestidigitation.
I would hold that the trial court erred in denying State Farm's motion for directed verdict on the contract claim.
EMBRY, J., concurs.
[1] Plaintiffs would not be aided if the Hammond or the Byrd estimates were used under 3c.(1)(b). Byrd's estimate, which Ponder furnished to State Farm, was $83,475.00. This figure was higher than the limit of liability, see 3c.(1)(a), and also higher than the amount the replacement actually cost, according to Ponder himself, $45,000.00. | February 15, 1985 |
7a5555ec-fea1-4862-a6f1-f5b788589639 | Ex Parte Singleton | 465 So. 2d 443 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 443 (1985)
Ex Parte Cornelius SINGLETON.
(Re: Cornelius Singleton, alias
v.
State).
83-1071.
Supreme Court of Alabama.
February 8, 1985.
*444 Michael Scheuermann and Reggie Stephens, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
SHORES, Justice.
This Court's opinion of December 7, 1984, is hereby withdrawn, and the following opinion is substituted in its place.
Cornelius Singleton, the defendant herein, was indicted and convicted for the murder of Sister Ann Hogan while robbing her, in violation of § 13-11-2(a)(2), Ala.Code 1975 (repealed 1981).[1] Defendant's first conviction was reversed and the case remanded for a new trial at 406 So. 2d 1024 (Ala.Cr.App.1981), on the authority of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), on remand, 396 So. 2d 645 (Ala.1981); and Ritter v. State, 403 So. 2d 154 (Ala.1981), on remand, 403 So. 2d 159 (Ala.Cr.App.1981). On remand for a new trial, defendant was again convicted. He was then sentenced to death according to the guidelines set out in Beck v. State, 396 So. 2d 645 (Ala.1980). The original sentencing order, issued December 15, 1981, was withdrawn and replaced by an order issued December 22, 1981,[2] which indicated, inter alia, that defendant committed the murder while under a sentence of imprisonment. On February 1, 1983, the Court of Criminal Appeals affirmed the conviction, but ordered a new sentencing hearing. At the new sentencing hearing, the State conceded that defendant had not, in fact, been under a sentence of imprisonment when the crime was committed, which is reflected in the trial court's "Second Amended Sentencing Order."[3] After weighing the aggravating and mitigating circumstances in this case, the trial court again sentenced defendant to death.
The Court of Criminal Appeals affirmed the death sentence in its "On Return to Remand" opinion, dated April 24, 1984, and later overruled defendant's application for rehearing. Defendant then filed a petition for writ of certiorari, which we granted. We affirm.
The facts are set forth in the opinion of the Court of Criminal Appeals in this case.
*445 Defendant contends that the overall facts and circumstances surrounding his confession to the killing of Sister Ann Hogan reveal that it was involuntary and, therefore, not admissible at trial. After considering conflicting evidence on this issue at a suppression hearing out of the presence of the jury, the trial court ruled that the confession was voluntarily and freely made. The full text of the confession was then read into evidence.
Testimony was adduced at the suppression hearing from Sergeant Joe Connick and Sergeant Hubert Bell, both of whom participated in the questioning of the defendant, that no efforts were made by violence, coercion, or intimidation, to induce the defendant to confess, nor was the defendant offered any hope of leniency. Sergeant Connick did admit on cross-examination, however, that he advised the defendant that the crime for which he was being questioned carried a possible penalty of between ten years and life imprisonment. Connick testified that, although he was familiar with the capital statute then in effect, he did not realize the defendant would be charged with capital murder.
Connick and Bell further testified that the defendant was twice advised of his Miranda rights before he made his oral statement. He signed a printed "waiver of rights" form, which was read to him, and, prior to the transcription of the statement into typewritten form, again was given his Miranda warnings. Both Connick and Bell testified that they believed the confession was voluntarily made.
Before the defendant made the oral statement, he was permitted to see his girlfriend, Cathy Barnes, in a room alone for approximately thirty minutes. Ms. Barnes testified that before she went in to see the defendant, Sergeant Bell urged her to "tell him something, because we have got to get this information out of him."
According to Ms. Barnes, while the defendant was being questioned, she was instructed by the district attorney of Mobile County to sit in the defendant's lap. She also testified that during this time the district attorney heavily influenced the content of defendant's statement and that the defendant was not given the opportunity to read the statement, but was merely instructed to sign it.
After a careful review of the conflicting testimony reflected in the record, we find that the trial court did not err in admitting this evidence.
Before a confession is admissible, the trial judge must be satisfied by a preponderance of the evidence that it was voluntarily made. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972). This finding will not be disturbed on appeal unless it is evident that the determination was palpably contrary to the weight of the evidence. Smith v. State, 346 So. 2d 382 (Ala.Cr.App.), cert. denied, 346 So. 2d 385 (Ala.1977); Balentine v. State, 339 So. 2d 1063 (Ala.Cr.App.), cert. denied, 339 So. 2d 1070 (Ala.1976). Here, although the testimony was conflicting, there is sufficient evidence to support the trial court's conclusion that the confession was voluntarily made.
Defendant also argues that Sergeant Connick's statement that he was being questioned for first degree murder constituted an implied promise that he would not be charged with capital murder. We disagree.
In Womack v. State, 281 Ala. 499, 205 So. 2d 579 (1967), a sheriff informed the defendant during questioning that "it would go lighter on him" if he made a statement. Reversing the conviction on the ground that the confession was based on an implied promise of leniency, the Court wrote:
281 Ala. at 507, 205 So. 2d at 587.
In the case at hand, there was no implied promise that defendant's punishment would be meliorated in return for a confession. The defendant was not told he would be charged with first degree murder as opposed to capital murder, nor does the record reflect he was threatened in any way. Sergeant Connick merely stated his opinion, albeit erroneous, that the defendant would be charged with first degree murder. It is evident that there was no inducement in this statement as contemplated by Womack, nor is there any indication that the methods employed by the interrogating officers were calculated to produce an untrustworthy confession.
The defendant next contends that the trial judge committed prejudicial error when he made the following comment to the jury concerning the voluntariness of defendant's confession:
It is improper for a trial judge to disclose to the jury that he made a preliminary determination that a confession was voluntary and, therefore, admissible. Clifton v. United States, 371 F.2d 354 (D.C. Cir.1966), cert. denied, 386 U.S. 995, 87 S. Ct. 1312, 18 L. Ed. 2d 341 (1967); United States v. Inman, 352 F.2d 954 (4th Cir. 1965). In the case at hand, however, the trial judge made it clear to the jury that they were to ultimately determine whether the confession was voluntary. We agree, therefore, with the Court of Criminal Appeals that there was no prejudicial error, since the comments of the trial judge "did not imply that the jury should accept and believe appellant's confession based on the trial court's ruling that the statement was voluntary."
Though the comments of the trial judge did not result in prejudicial error, the Court of Criminal Appeals in its opinion in this case incorrectly states the law with respect to the issue of voluntariness.
Relying on Matthews v. State, 55 Ala. 65 (1876), the Court of Criminal Appeals concluded that "[o]nce the trial court has ruled that a confession was voluntarily made and is, therefore, admissible, the jury must accept it as voluntary." Indeed, Matthews v. State supports this conclusion:
55 Ala. at 71.
Correctly stated, whether a confession was voluntary rests initially with the trial court; once the trial judge makes the preliminary determination that the confession was voluntary, it then becomes admissible into evidence. Thereafter, the jury makes a determination of voluntariness as affecting the weight and credibility to be given the confession. Lewis v. State, 295 Ala. 350, 329 So. 2d 599 (1976). Accordingly, the Court in Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965), wrote:
278 Ala. at 165, 176 So. 2d at 859.
Matthews v. State, supra, insofar as it stands for the proposition that the trial judge's preliminary determination of voluntariness is conclusive on the jury, is in conflict with established precedent in this jurisdiction and is hereby expressly overruled.
Defendant's remaining contentions were fully and correctly decided by the Court of Criminal Appeals and need not be further considered here.
We adhere to the views expressed by this Court in Ex parte Baldwin, 456 So. 2d 129 (Ala.1984), on the constitutionality of the sentencing phase of these cases. However, in view of the decision of the Eleventh Circuit Court of Appeals in Ritter v. Smith, 726 F.2d 1505 (11th Cir.), cert. denied, ___ U.S. ____, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984), which is controlling authority on the federal district courts in Alabama, it is appropriate to discuss certain aspects of the sentencing procedures employed in this case.
The Eleventh Circuit, in Ritter, vacated the death sentence of Wayne Eugene Ritter and remanded for a new sentencing hearing. Ritter was convicted of capital murder in 1977 under § 13-11-2(a), Ala. Code 1975 (repealed 1981),[4] wherein the jury was instructed that the death sentence would automatically be imposed upon a finding of guilt of the capital offense.
The Eleventh Circuit held that "the jury's mandatory death sentence is a factor in the sentencing process which must meet the constitutional standards established in Furman to be permissible. This is a test the mandatory death sentence factor clearly does not meet." The Court went on to write:
726 F.2d at 1516.
In the case at hand, the defendant was tried according to the procedures set forth in Beck v. State, 396 So. 2d 645 (Ala. 1981), which mandated a separation of the guilt-finding phase from the sentencing phase in a capital case. Here, the jury was instructed that upon returning a verdict of guilt of the capital offense,[5] they would later sentence the defendant to either life imprisonment or death. The jury found the defendant guilty and, after a proceeding in which they heard evidence of mitigating and aggravating circumstances, recommended a sentence of death. Since the factor which the 11th Circuit considered rendered the proceeding constitutionally infirm, a mandatory death sentence by the jury, was not present in the trial judge's *448 sentencing determination, we decline to remand for a new sentencing hearing.
We are aware that the Supreme Court of the United States has now granted certiorari in Baldwin after the original opinion in this case was released. By acquiescing in the 11th Circuit's opinion in Ritter, we did not intend to indicate that we agreed with it. It was our purpose to follow it only because not to do so would result in every case in which the issue is involved (and we judicially know there are several pending) being brought before the federal courts on petitions for writs of habeas corpus, and we recognize that the federal district courts are bound to follow Ritter. If a new sentence hearing is required and will be granted as a matter of course in the federal court, it would be an unnecessary waste of time for this Court not to order a new hearing. However, that is not required in this case for the reasons stated above.
APPLICATION FOR REHEARING OVERRULED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.
JONES, J., concurs in the result.
JONES, Justice (concurring in the result).
I concur in the result. See Ritter v. State, 414 So. 2d 452 (Ala.1981) (Maddox, Jones, and Adams, JJ., concurring in part and dissenting in part).
[1] Section 13-11-2 was repealed by Ala. Acts 1981, No. 81-178, effective July 1, 1981. That section remained effective, however, for conduct committed prior to July 1, 1981. See "Code Commissioner's note" to § 13-A-5-31, "1982 Cum.Supp. to 1977 Blue Paperback Pamphlet."
[2] See Appendix A to the opinion of the Court of Criminal Appeals, dated February 1, 1983.
[3] See Appendix to the Court of Criminal Appeals' "On Return to Remand" opinion of April 24, 1984.
[4] See fn. 1.
[5] The jury was also instructed on the lesser included offenses of murder in the first degree, murder in the second degree, manslaughter in the first degree, and robbery. Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). | February 8, 1985 |
ba7f6cfc-7205-4128-96d4-39d485a0a78d | United Farm Agency of Ala. v. Green | 466 So. 2d 118 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 118 (1985)
UNITED FARM AGENCY OF ALABAMA, INC.
v.
S.A. GREEN, et al.
No. 83-916.
Supreme Court of Alabama.
February 22, 1985.
*119 Tim Reynolds, Troy, for appellant.
Cary L. Dozier, Troy, for appellee.
JONES, Justice.
This case involves a question whether a real estate agent procured a buyer for his principal and therefore is entitled to a commission agreed upon by contract.
On February 15, 1983, S.A. Green entered into a written, open, real estate listing agreement[1] with United Farm Agency of Alabama, Inc. The agreement concerned two parcels of real estate owned by Green, his wife, and two daughters: A 9.4-acre tract of land with a house and a 135-acre tract of land. The agreement provided that Green would pay United Farm a sales commission of 10% of the gross sales price of the house and land "when a purchaser is procured through you or your representative." United Farm's agent, Barron Strother, walked over the property, went inside the house, and took notes and pictures in preparation to showing the properties.
On May 10, 1983, Strother took Pete Lott, Lorenza Maulden, Jr., and Dennis Rollins to see the large tract of land and they walked over it. After leaving the property, they passed by the house. Mr. Strother mentioned that United Farm also had the house listed. The next day, Strother sent a property presentation notice to Green advising him that the property[2] had been shown to Lott and Maulden.[3] The notice requested that "in the event you are contacted by these persons or any other customers we urge you to call us immediately."
Maulden and Rollins had never seen the house or the land before Strother took them to see the property. After their visit to the real estate with Strother, however, Maulden initiated negotiations with Green. Before Maulden contacted Green directly, they had never met, nor was Green acquainted with Rollins. Maulden and Green discussed the price of the property on several occasions. On May 30, 1983, Rollins and Maulden bought the large tract of *120 land, and, three days later, Maulden bought the smaller parcel with the house. Green never contacted United Farm or Strother about the negotiations with Maulden or the sales of the properties to Maulden and Rollins. By word of mouth, Strother learned of the sales on June 4.
United Farm sued Green, his wife, and daughters (in whose name the legal title was held) in the Pike County Circuit Court to collect the commission allegedly due it as a result of Strother's actions. The trial court, sitting without a jury, ruled that "the evidence did not [establish] to the required measure that the actions of [United Farm] were the efficient and proximate cause of the offer and acceptance to purchase the property on the terms fixed by [Green]." Judgment was entered for the Sellers.
United Farm appeals. We find that the evidence requires a finding that United Farm did procure the buyers of the large parcel of land for the Sellers, but not the smaller parcel with the house. We affirm in part, reverse in part, and remand.
To be entitled to a commission, absent contractual provisions to the contrary, an Alabama real estate broker must procure a purchaser ready, willing, and able to buy from the seller. Perdue v. Gates, 403 So. 2d 165, 170 (Ala.1981). This test logically breaks down into two parts. First, was the purchaser ready, willing, and able to buy? In the case at hand, the parties concede that the purchasers were ready, willing, and able to buy. Therefore, our discussion focuses only on the second part of the test: Did the broker procure the purchasers?
We have approved various definitions of "procurement," a term of art, in our cases. See, e.g., Vulcan Oil Co. v. Gorman, 434 So. 2d 760 (Ala.1983); Perdue v. Gates, supra, Mellos v. Silverman, 367 So. 2d 1369 (Ala.1979); Foote v. Moore, 342 So. 2d 906 (Ala.1977); Handley v. Shaffer, 177 Ala. 636, 59 So. 286 (1912). A distillation of all these definitions, however, gives us a more concise and accurate definition of "procurement": a broker's efforts which are the efficient cause, but not necessarily the sole cause, of a series of unbroken, continuous events, which culminate in the accomplishment of the object of his employment. See, generally, 12 C.J.S. Brokers § 166 (1980). This, then, is the standard by which we must judge the agent's actions to determine if the real estate agency is entitled to a commission.
We deal first with the large parcel of land, because the procurement test applies most clearly to it. The instant facts reveal that United Farm's agent had prepared to show the land by personally walking over it and taking pictures and making notes. He physically took the two men, who ultimately purchased the land, to see it. He spent approximately two hours walking over the land with them. He was the source of the two purchasers' knowledge of who the owners/sellers were. Although the two men did not contact the agent again after their initial visit with him, twenty days later they purchased the property directly from the Defendants/Owners.
Under these undisputed facts, we find that the broker's efforts were, as a matter of law, the efficient cause of the sale. Possibly, the broker's efforts were not the sole cause of the sale (i.e., the Defendants/Owners' negotiations with the purchasers subsequent to the broker's showing them the property may have been a contributing factor in the total effort which produced the sale), but, as we indicated above, to be the procuring cause of the sale, it is not necessary that the broker's efforts be the only cause of the sale. See generally Perdue v. Gates, supra. Moreover, we find that the series of events directly instigated by the broker's efforts and culminating in a sale twenty days later were unbroken and continuous.
In so finding, we are not unmindful of the ore tenus rule. However, where, as *121 here, the facts are undisputed, the ore tenus presumption of correctness is inapplicable. Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45, 47 (Ala.1980). With due deference to the learned trial judge, we are convinced that he misapplied the law of procurement to these undisputed facts. We, therefore, reverse his ruling as to the large parcel of land.
Whether the broker procured the ready, willing, and able buyer of the smaller parcel with the house is not as clear. After looking at the large parcel of land, on the way back, simply in passing by the house, the broker mentioned to the ultimate purchaser, Mr. Maulden, that the house was for sale also, and that he had it listed. He did not show the house, nor, as with the large parcel of land, did he participate in any negotiations. Undeniably, the broker was the cause of the purchaser and the owners/sellers' coming together, for neither knew of the other except for the efforts of the broker. Indeed, the purchaser, Mr. Maulden, did not know the house was for sale except through the efforts of the broker. But, do these facts constitute "procurement," as a matter of law, as our case law defines it?
While the ore tenus presumption of correctness rule was inapplicable as to the large tract of land, because no contrary inference could be drawn from the undisputed facts, we are unable to conclude that the ore tenus rule is likewise inapplicable with respect to the sale of the house. The substantial difference between the factual background with respect to the large parcel of land and the smaller parcel with the house left the trial judge free to infer from the evidence relating to the sale of the house that the requisites of procurement were not met. Moreover, as we noted earlier, the property presentation notice sent by United Farm to Green concerned itself only with the large tract. Therefore, the ore tenus presumption-of-correctness rule with respect to his findings of fact as to the sale of the house requires this Court to affirm that portion of his judgment.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.
[1] The agreement itself is an "exclusive right to sell" form; however, in one instance, the words "exclusive right to sell" have been stricken and the word "open" handwritten above. As is well known, "open" and "exclusive right to sell" connote greatly different rights and duties as between the real estate agent and his principal. If this were an "exclusive right to sell" agreement, our analysis would be simple indeed, because, in that instance, the principal/owner would have contracted away his right to sell his own property. Moreno v. May Supply Co., 280 Ala. 157, 159, 190 So. 2d 710, 712 (1966).
Whether this attempted modification of the form would have been binding, in view of other language left intact in the form, is questionable. At any rate, the parties have conceded the agreement to be "open." Thus, we are not confronted with this issue.
[2] The property presentation notice did not specify whether it referred to one or both properties. It did state, however, that "We recently presented your property at the agreed selling price.... $75,000"; this was the listing price for the large parcel of land. By way of a separate agreement, the lot with the house was listed for $84,000. Thus, by implication the property presentation notice only referred to the large parcel of land.
[3] Green testified that the property presentation notice that Strother sent him had neither Maulden's nor Rollins's name on it. He stated that only Lott's name appeared on the presentation notice. The notice, however, as admitted into evidence, contained Lott's and Maulden's names. However that may be, the listing agreement provided that the principal/owner was to pay the real estate agency a commission "when a purchaser is procured through you, or your representative, at the stated price and terms, or at any other price and terms acceptable to me." (Emphasis added.) Thus, this was an agreement to simply procure a ready, willing, and able purchaser. With such an agreement, the principal/owner's "knowledge or notice that [a] purchaser came as [a] result of [the] broker's efforts is immaterial." Dancy v. Baker, 209 Ala. 684, 684, 96 So. 920, 920 (1923). Compare, Sharpley v. Moody & Co., 152 Ala. 549, 44 So. 650 (1907) (broker employed to procure a purchaser and sell land on specified terms). | February 22, 1985 |
b0a2e638-e4af-402a-9c59-f894ab8b4d56 | McCown v. Gottlieb | 465 So. 2d 1120 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 1120 (1985)
John D. McCOWN
v.
Carl Robert GOTTLIEB, et al.
Carl Robert GOTTLIEB, et al.
v.
John (Jack) D. McCOWN, et al.
83-1054, 83-1090.
Supreme Court of Alabama.
February 22, 1985.
*1121 Samuel M. McMillan of Inge, McMillan & Inge, Mobile, for appellant/cross-appellee.
William W. Watts of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellees/cross-appellants.
William M. Cunningham, Jr. of Sintz, Pike, Campbell & Duke, Mobile, for appellee William B. Crane.
SHORES, Justice.
The plaintiffs are, individually, owners of five contiguous lots located along Oakway Drive in Mobile, Alabama. They brought this action to enjoin John D. McCown, also the owner of a lot on Oakway Drive, from subdividing his lot in violation of a deed restriction.
In late 1954 and early 1955, William B. Crane and Phyllis C. Crane sold the six lots now owned by plaintiffs and McCown; five of the lots were sold within a thirteen-day period, and the sixth was sold approximately two months later. The deeds to each of the six lots contained the following restrictive covenants:
On December 26, 1980, some twenty-five years after the conveyance of these lots, *1122 the Cranes and McCown executed an instrument entitled "Amendment to Restrictive Covenants," which purported to release the covenant prohibiting subdivision. This instrument was recorded in the office of the Judge of Probate of Mobile County.
On July 6, 1982, McCown sold a portion of his lot to Wladimir and Susan Jean Paquette Wertelecki, and began preparations for construction of a residence on the portion he retained.[1] The plaintiffs then brought this suit against McCown to enjoin construction of the residence and named William B. Crane and Phyllis C. Crane as defendants; plaintiffs also sought to recover the expenses of the litigation, including attorney's fees. McCown, in turn, filed a counterclaim, seeking damages for slander of title and malicious interference and seeking a declaratory judgment to establish that the release of the covenant was valid.
The court then issued a permanent injunction forbidding McCown from "any and all efforts to resubdivide or to perpetuate any previous resubdivision of this property made in violation of the restrictive covenants in effect" and from building a residence on the retained portion of the land "so long as there is in existence a principal residential dwelling on the portion of the property conveyed ... to Wladimir Wertelecki and Susan Jean Paquette Wertelecki."
Summary judgment was granted in favor of plaintiffs on McCown's counterclaim for slander of title and malicious interference and in favor of the Cranes on plaintiffs' claim for expenses and attorney's fees.
We affirm the disposition of all claims by the trial court.
The trial court determined that the six lots owned by the plaintiffs and McCown constitute a "subdivision developed pursuant to a common development plan or scheme," thus enabling plaintiffs to enforce the restrictive covenants in McCown's deed.
The characteristics of a development created pursuant to a common scheme or plan were considered in Hall v. Gulledge, 274 Ala. 105, 109, 145 So. 2d 794, 798 (1962), wherein the Court wrote:
If, therefore, the six lots in question constitute a subdivision created pursuant to a common scheme of development, the trial court was correct in concluding that the attempted release of the covenant was ineffective to subvert the equitable easements created in the plaintiffs.
McCown argues, however, that the restrictions were imposed for the personal benefit of the Cranes and were not intended to create any rights in the plaintiffs.
Whether the grantor intended to create an easement in favor of the purchaser is a question of fact which "may be proven as is any other fact in the light of legal presumption or precedent." Virgin v. Garrett, 233 Ala. 34, 169 So. 711 (1936). In McMahon v. Williams, 79 Ala. 288, 291 (1885), the Court, considering the indicia of the grantor's intent, wrote as follows:
Moreover, a declaration in the conveying instrument "that restrictive covenants are to run with the land has been cited as a significant factor in determining that a grantor intended a general scheme or plan of development." Wright v. Cypress Shores Development Co., 413 So. 2d 1115, 1124 (Ala.1982), citing Golian v. Polhironakis, 390 So. 2d 187 (Fla.Dist.Ct.App.1980).
The trial court based its decision on evidence presented in response to motions for summary judgment made by the plaintiffs and by McCown; and though the order appealed from is denominated "summary judgment," it is evident that each party was allowed to fully develop evidence on the issue of the grantor's intent. From this, it is undisputed that the six lots in question were sold within a short period of time; with uniform restrictive covenants; without a reservation of the power by the grantor to alter or amend the restrictive covenants; and with a declaration in the deed that the restrictive covenants "shall run with the land and shall bind said land as well as the present and future owners thereof."
Applying the above stated principles of law to the undisputed material facts, we find that the trial court correctly concluded, as a matter of law, that the six lots were conveyed according to a common scheme of development and that the revocation of the restriction forbidding subdivision was void.
Based upon our review of the record and briefs of counsel, we hold that the trial court also properly granted summary judgment on the remaining issues.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
[1] The portion of the lot reserved by McCown measured 60 feet by 130 feet, or 7,800 square feet. Prior to this division, the smallest of the six lots measured approximately 90 feet by 221 feet, or 19,890 square feet. | February 22, 1985 |
b6295151-006a-4e68-bd98-dcc7db59f38f | Moore v. Liberty Mut. Ins. Co. | 468 So. 2d 122 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 122 (1985)
Leonidas MOORE, Jr.
v.
LIBERTY MUTUAL INSURANCE CO., a Corp., et al.
83-339.
Supreme Court of Alabama.
March 29, 1985.
Jere L. Beasley and James W. Traeger of Beasley and Wilson, Montgomery, for appellant.
N.T. Braswell III of Rushton, Stakely, Johnston and Garrett, Montgomery, for appellees.
EMBRY, Justice.
This is an appeal from a summary judgment as to four counts and a judgment dismissing the fifth count of a five-count complaint. We affirm.
Leonidas Moore, Jr., plaintiff below, a high school graduate, thirty-five years of age, was employed at Tallassee Mills (Mt. Vernon Mills, Inc.) in 1967 and worked there continuously from that time (except for a term of military service) until he was laid off in 1982.
In July 1975, while working as a loom fixer, Moore was injured, and hospitalized for a period of eleven days, during which time his right eye was surgically removed because of the injury to it in the on-the-job accident. He returned to work approximately three months later, was given a new job in the training room as a full-time instructor but at the same rate of pay he was receiving before the accident. While off the job he was paid temporary total workmen's compensation benefits at the then-maximum rate.
Ellis O. Frost, a claims adjuster with Liberty Mutual, the workmen's compensation carrier for Mt. Vernon Mills, contacted *123 Moore while Moore was in the hospital and advised that he would receive the maximum, all of the medical bills would be paid, and at an appropriate time after the doctor had released him a supplement would be paid under workmen's compensation.
Later, Moore was contacted at work by Frost, who advised Moore that he was entitled to additional compensation for loss of the eye, a greater sum if paid periodically or a lesser amount if paid in a lump sum. Moore stated, at that time, he wanted to think about the offer, as he was concerned about whether he would be receiving a fair settlement. Moore did, in fact, consult with his wife, brothers-in-law, and a sister-in-law about the matter. Some weeks later, Frost contacted Moore about the matter and was told that he, Moore, was not satisfied with the amount offered because he felt his eye was worth more. Frost informed him the amount offered was all he was entitled to receive. Moore suffered no bodily injury other than the loss of his eye, according to his testimony.
After the second contact by Frost, Moore discussed the claim with the general manager of the mill and a supervisor, a Mr. Redden, because he was concerned whether his job might be in jeopardy because of the accident and injury. He was assured he would have a job in spite of that.
Once again, Frost contacted Moore and again advised him that the scheduled benefits were all he would get as compensation. It was also related to Moore that there were time limitations on his claim. Moore then agreed to accept the commuted lump sum amount. Frost told him that he, Frost, would contact William Inge Hill, a Montgomery lawyer, to have the necessary papers prepared to present to, and have approved by, the court. In mid-January 1976, Moore, with his wife, went to Mr. Hill's office and was presented a settlement petition. After he and Mrs. Moore read it, Moore raised questions about some of the wording and medical benefits. The provision that closed payment of medical benefits was deleted at Moore's request. The petition was signed and then approved by Circuit Judge Carter of Montgomery County. After this was done, Moore was paid $8,829.52. Neither Moore, Frost, nor Hill discussed his job or anything concerning lifetime employment.
Moore testified in other proceedings that Mr. Beasley, his attorney, told him he was entitled to more compensation and he had been deceived about his benefits.
For the ensuing six-plus years, Moore continued to work for Mt. Vernon Mills, did not encounter any difficulties with his job, and was promoted. In April of 1982, Moore and hundreds of his fellow employees were laid off.
There is no evidence of any conspiracy by Frost and agents of Mt. Vernon Mills and no documentation of Moore's assertion he was promised lifetime employment. To the contrary, both of these matters are denied by defendants and Mt. Vernon Mills.
Each of these issues must be answered in the negative.
Under the facts of record, the claims for fraudulent misrepresentation and fraudulent suppression of facts are not ones for which relief may be granted, because of the exclusivity of the Alabama Workmen's Compensation Act. Code 1975, § 25-5-1 et seq.; Waldon v. Hartford Insurance Group, 435 So. 2d 1271 (Ala.1983); Wilkins v. West Point-Pepperell, Inc., 397 So. 2d 115 (Ala.1981). Moore's remedy, if indeed there was fraud infecting the settlement *124 of his compensation claim, was to have it set aside under the provisions of Code 1975, § 25-5-56, and seek relief from the settlement judgment under the provisions of Rule 60, ARCP. However, in this case there is no evidence of any fraud.
There was no duty of disclosure upon the part of Liberty Mutual or Frost. There is no duty to disclose the law. It is available and presumed known. Henson v. Estes Health Care Center, Inc., 439 So. 2d 74 (Ala.1983). Moore's allegations would require Frost to give legal advice, which the law prohibits a layman from doing. Wilkey v. State, 244 Ala. 568, 14 So. 2d 536 (1943).
Regarding the claim that may be read as one either for the bad faith failure to settle or the tort of outrageous conduct, we opine that no relief could be granted upon these claims. Bad faith or negligent conduct upon the part of the employer or its compensation carrier is not actionable. Relief is barred because of the exclusivity of the compensation remedy. Waldon, supra, Garvin v. Shewbart, 442 So. 2d 80 (Ala.1983).
The tort of outrageous conduct is not so barred. Garvin, supra. However, the facts of this case show there was no tortious conduct upon the part of the appellees. Cates v. Taylor, 428 So. 2d 637 (Ala. 1983).
The judgments below are due to be, and they are hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | March 29, 1985 |
39c38223-7871-41df-bc3e-c0abd9945072 | Ex Parte Williams | 468 So. 2d 99 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 99 (1985)
Ex parte Calvin Lynn WILLIAMS
(Re: Calvin Williams, alias v. State).
83-1141.
Supreme Court of Alabama.
February 15, 1985.
*100 Walden M. Buttram of Finlayson & Buttram, Gadsden, for petitioner.
Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
The petitioner was indicted on charges of burglary in the third degree and theft in the second degree. A jury trial resulted in his being found guilty of these charges, and judgment was entered accordingly, fixing his punishment at 15 years' imprisonment.
Petitioner appealed from that judgment to the Court of Criminal Appeals. That court affirmed the conviction, without opinion. 453 So. 2d 11 (Ala.Crim.App.1984). In his application for rehearing addressed to that court, petitioner included a Rule 39(k), A.R.A.P., statement of facts from the record for consideration. The application for rehearing was denied without opinion. 453 So. 2d 11.
Petitioner then petitioned this Court for a writ of certiorari on the ground that the decision of the Court of Criminal Appeals was in conflict with that court's prior decisions on the requirements for a conviction based upon circumstantial evidence, citing Weathers v. State, 439 So. 2d 1311 (Ala. Crim.App.1983); Graham v. State, 374 So. 2d 929 (Ala.Crim.App.), cert. quashed, 374 So. 2d 942 (Ala.1979); and Cumbo v. State, 368 So. 2d 871 (Ala.Crim.App.1978), cert. denied, 368 So. 2d 877 (Ala.1979).
The Rule 39(k) statement of facts follows:
*101 This statement was also the statement of facts contained in petitioner's brief on appeal to the Court of Criminal Appeals as well as the statement of facts in his brief on petition to this Court. In its briefs to the Court of Criminal Appeals and to this Court, the State of Alabama has accepted this statement of facts as "substantially correct" and adopted it by reference. Our own examination of the record substantiates its accuracy.
An abundance of decisions exists on the extent to which circumstantial evidence may support a finding of guilt, and the general legal requirement has been repeated frequently, although not always in the same terms. These requirements have preserved the force of circumstantial evidence to support a finding of guilt if "the evidence is so strong and cogent as to show defendant's guilt to a moral certainty," Tanner v. State, 291 Ala. 70, 277 So. 2d 885 (1973); Gantt v. State, 356 So. 2d 707 (Ala. Crim.App.), cert. denied, 356 So. 2d 712 (Ala.1978), and the circumstances producing the moral certainty of the accused's guilt "are incapable of explanation on any reasonable hypothesis." Jarrell v. State, 255 Ala. 128, 50 So. 2d 774 (1949); Sumeral v. State, 39 Ala.App. 638, 106 So. 2d 270 (1958).
As pointed out in Ex parte Acree, 63 Ala. 234 (1879), and quoted in Weeks v. State, 428 So. 2d 193 (Ala.Crim.App.1983):
And in Weathers v. State, 439 So. 2d 1311 (Ala.Crim.App.1983), the Court of Criminal Appeals quoted with approval the following language from its opinion in Thomas v. State, 363 So. 2d 1020 (Ala.Crim.App. 1978):
Applying these principles to the facts in this case, the basic question must be whether or not the evidence adduced is consistent with guilt and inconsistent with any reasonable hypothesis that the petitioner is innocent. Johnston v. State, 387 So. 2d 891 (Ala.Crim.App.); cert. denied, 387 So. 2d 905 (Ala.1980).
We have concluded, from an analysis of the facts, that this conviction is not supported by circumstantial evidence which sustains petitioner's conviction. According to the facts, the only evidence connecting the petitioner to the stolen goods was that three of the "lifts" taken from the boxes of film were identified as his. The record discloses that the stolen cameras had been contained in a locked display case which had been broken into. The film packages, however, although behind the display case and in an area of the store where customers were not invited, nevertheless were located on an open, unlocked pegboard behind the display case and were accessible to the shopping public by a passageway between display cases. The period of time between when these fingerprints were made on the film boxes and the time they were lifted was approximately 48 hours, i.e., two days. The State produced no evidence placing petitioner at or near the store on the night of the burglary, a Wednesday night. No connecting evidence was adduced by way of a search of his premises. The sole evidence supporting an inference of guilt was that his fingerprints, along with the fingerprints of others, were found on three or less of the sixteen boxes of film.
Might a jury find that the evidence excluded every reasonable hypothesis except that of guilt? Cumbo v. State, 368 So. 2d 871 (Ala.Crim.App.1978), cert. denied, 368 So. 2d 877 (Ala.1979). We do not believe a jury could do so here. The least that could be inferred as a counter-hypothesis is that the petitioner's fingerprints could have been left on the packs during regular hours of the two business days preceding the burglary. Thus, to find the accused guilty under this evidence, as a practical matter, places the browsing shopper who handles merchandise, even in a restricted, but accessible, area of a store, at the risk of felony conviction should some of that merchandise later be the subject of a theft. The law of circumstantial evidence does not permit such a result.
For these reasons, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court for an order consistent with this opinion.
It is so ordered.
REVERSED AND REMANDED WITH DIRECTIONS.
All the Justices concur. | February 15, 1985 |
7e75b789-5e10-43ea-95e6-92e1f1fe920f | Edwards v. Strong | 465 So. 2d 368 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 368 (1985)
Barbara EDWARDS & Jordan Machine Shop
v.
Jacqueline STRONG, individually, and as Executrix of the will of Jacqueline Jordan, Deceased.
83-319.
Supreme Court of Alabama.
February 8, 1985.
*369 Malcolm L. Wheeler and M. Wayne Wheeler, Birmingham, for appellants.
Richard A. Meelheim and J. Scott Vowell of Beddow, Fullan & Vowell, Birmingham, for appellee.
MADDOX, Justice.
This case concerns a suit originally brought by Jacqueline Strong, individually and as executrix under the will of Jacqueline Jordan, deceased, to set aside certain transactions occurring during the lifetime of the decedent. The jury rendered a verdict against Jacqueline Strong on all issues except a $75,000 promissory note, and the propriety of the judgment on the note, along with the taxing of costs, are the issues on appeal.
Jacqueline Jordan died testate on October 4, 1981. Jacqueline Strong was her only daughter. The appellants are Barbara Edwards, a sister of the decedent, and the Jordan Machine Shop, Inc. (Jordan Machine), a company which at one time was owned by the decedent, but which, about four years prior to decedent's death, had been sold to Jerry Edwards, Barbara Edwards's husband.
At issue here is a $75,000 promissory note dated July 10, 1981, executed by Jordan Machine and payable to the order of Jacqueline Jordan or Barbara Edwards as co-payee with right of survivorship. Decedent loaned $75,000 to Jordan Machine so that the company could build a new building. The note was signed by Jerry Edwards, on behalf of the corporation. Barbara Edwards typed the note. Only Barbara Edwards, Jerry Edwards, and the decedent were present when the note was signed and delivered. The trial court found that Barbara Edwards had exercised undue influence upon her sister, the decedent, in procuring her own name on the note as co-payee, with right of survivorship. In addition, the trial court taxed one-half of the costs of the action against Jacqueline Strong and one-half of the costs against Jordan Machine.
Barbara Edwards and Jordan Machine contend that there was insufficient evidence of undue influence in the execution of the note and, thus, that the trial court erroneously reformed the note by deleting the clause which gave her a right of survivorship. Both argue that evidence of undue influence must be more than a suspicion or speculation that undue influence is present. Jackson v. Davis, 398 So. 2d 242, 245 (Ala.1981). Of course, this is the law, but the question remains whether sufficient evidence was presented here to support the trial court's decree.
The general rule is that a presumption of undue influence arises when the contestant shows that (1) the grantor and grantee are in a confidential relationship; (2) the grantee is the dominant party in the relationship; and (3) the grantee *370 engaged in undue activity in the procurement of the inter vivos gift or execution of the will. Sanford v. Coleman, 418 So. 2d 856 (Ala.1982); Nottage v. Jones, 388 So. 2d 923 (Ala.1980). This doctrine applies equally to both testamentary and inter vivos gifts. Gosa v. Willis, 341 So. 2d 699 (Ala. 1977). Once this presumption arises, the burden shifts to the grantee, in this case, Barbara Edwards, to rebut the presumption by showing that the grantor obtained independent advice or by showing by some other means that "the matter was a voluntary and well understood act of the grantor's mind and was fair and just." Hinson v. Byrd, 259 Ala. 459, 66 So. 2d 736 (1953).
Here, there was evidence from which the court could conclude that Barbara Edwards and the decedent had a confidential relationship. On voir dire, Barbara Edwards testified that she and the decedent had a joint safe deposit box for over twenty years and that she handled everything for the decedent. Barbara Edwards stated the following:
In addition, the decedent and the grantee had a joint savings account. Furthermore, the following testimony indicates that Barbara Edwards frequently used the decedent's charge accounts, signing the decedent's name:
The second element required to raise a presumption of undue influence requires a showing that Barbara Edwards dominated the will of the decedent. The decedent's nurse testified regarding the relationship between the decedent and Barbara Edwards as follows:
Jacqueline Strong testified that Barbara Edwards dominated the decedent because she had, through her constant presence, made the decedent totally dependent on her and testified that the decedent was afraid of losing Barbara Edwards.
Finally, there is credible evidence to support the last element, that of undue activity. Barbara Edwards testified that she typed the note and that only she, Jerry Edwards, and the decedent were present when the note was executed.
It is unclear from the record whether the trial court's judgment, relating to the invalidity of the note, is solely a result of the jury's verdict or whether it is a result of the court's independent judgment based in part upon the advisory verdict of the jury. In the record, the court commented on at least two occasions that it deemed the issue of the note to be one in which the jury's verdict would be only advisory. The appellee contends, however, that upon either basis, whether based upon the court's findings or upon the jury's verdict, the judgment carries with it a presumption of validity. We agree.
*371 It is well established in this jurisdiction that the verdict of a jury is presumed to be correct and will not be set aside on appeal unless it is plainly erroneous, manifestly unjust, or against the preponderance of the evidence. TG & Y Stores v. Atchley, 414 So. 2d 912 (Ala.1982). In addition, findings and conclusions of a trial court on evidence produced ore tenus are afforded the same weight as a jury verdict. Cauley v. Sanders, 388 So. 2d 891 (Ala.1980); Universal Development Corp. v. Shader, 382 So. 2d 1115 (Ala.1980). The trial court's findings will not be disturbed if they are fairly supported by credible evidence. Lavett v. Lavett, 414 So. 2d 907 (Ala.1982). These principles are equally applicable in both law and equity and have been specifically held to be applicable to cases involving undue influence. Wyatt v. Riley, 292 Ala. 277, 293 So. 2d 288 (1974); Killough v. Devaney, 374 So. 2d 287 (Ala. 1979).
After reviewing the evidence, we cannot conclude that the lower court's finding of undue influence is plainly erroneous, manifestly unjust, or against the preponderance of the evidence. We affirm the lower court's ruling on this issue.
Also at issue here is the taxing of costs. Pursuant to Rule 54(d), Ala.R. Civ.P., the lower court has discretion in taxing costs. This rule provides that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs." Having reviewed the record, we cannot find that the lower court abused its discretion in taxing one-half of the costs to Jordan Machine.
The costs in this case, amounting to $5,842.50, include the fees of two guardians ad litem plus normal expenses. Jordan Machine contends that the taxing of one-half of the costs was an abuse of discretion because of the size of the costs and because there was very little recovery against, or interest on the part of Jordan Machine. They contend that the final judgment against Jordan Machine amounted to only $4,000 and involved two minor issues. Jacqueline Strong, on the other hand, contends that the final judgment against Jordan Machine amounts to a total sum of $40,306.90.
Both parties agree that an adverse judgment was rendered against the corporation for $1,000, due decedent under a noncompetition agreement, and for $3,000, due decedent for one month's salary.
The court also rendered a judgment against Jordan Machine on the promissory note. The court stated:
We find, therefore, that the total judgment rendered against Jordan Machine amounts to $40,306.90; thus, we cannot find the trial court abused its discretion by taxing Jordan Machine with one-half of the costs, which amounts to approximately $2,921.25. We affirm.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | February 8, 1985 |
22b81236-60db-462a-ba14-be694c62193d | Ex Parte Lewis | 469 So. 2d 599 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 599 (1985)
Ex parte Charlie L. LEWIS.
(Re: Charlie L. Lewis v. The 4-E Corporation).
83-857.
Supreme Court of Alabama.
March 8, 1985.
Harold Howell of Howell, Sarto & Howell, Prattville, for petitioner.
James H. Anderson of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for respondent.
FAULKNER, Justice.
This is a workmen's compensation case. We granted certiorari to determine whether the Court of Civil Appeals' decision in this case conflicts with the decisions rendered by this Court in Ingalls Shipbuilding *600 Corp. v. Cahela, 251 Ala. 163, 36 So. 2d 513 (1948), and Kroger Co. v. Millsap, 280 Ala. 531, 196 So. 2d 380 (1967).
Charlie Lewis is a 45-year old man with a sixth-grade education who was categorized by a vocational expert as a functional illiterate. While lifting a 90-pound sack of concrete at work, Lewis suffered a myocardial infarction. While hospitalized for the heart attack, he was diagnosed as suffering from hypertension and arteriosclerosis. The treating physicians agreed that the strain of the job acting on Lewis's existing physical condition caused the heart attack. Prior to the heart attack, Lewis had never had any heart problems which required him to curtail his activities. After the heart attack, however, he began suffering episodes of severe pain, which required him to limit his activities. A vocational expert testified that, based on Lewis's age, experience, and physical condition, he was 92% disabled. A cardiologist testified that he wished to hospitalize Lewis and perform a cardiac catheterization to determine the degree of arterial blockage and determine whether it would be desirable to perform by-pass surgery. If the surgery is needed but not performed, Lewis's possibility of a future heart attack will be significantly increased and he will be restricted from any significant physical activity. With surgery it is possible that Lewis might some day be able to return to work.
The trial court ruled that the heart attack arose out of and in the course of Lewis's employment. It awarded him medical expenses incurred in treating the infarction and payments for the total temporary disability caused by the heart attack. The portion of the trial court's decree which is in dispute involves the award for permanent disability. Although Lewis is 92% disabled, the trial court awarded him permanent partial disability of only 10%. The court also ruled that Lewis's employer was not responsible for expenses which might be incurred by the proposed cardiac catheterization and by-pass surgery.
The Court of Civil Appeals affirmed the trial court's order. With regard to the award for permanent partial disability, it approved of the apportionment of the permanent disability award between that portion of the disability caused by the heart attack and that portion caused by the preexisting heart disease. The court stated that "the reason [Lewis] could not return to work was because of the coronary artery disease which reduced the flow of oxygen to the heart and caused pain. However, there was also testimony that the pain could not be divorced entirely from the myocardial infarction, although the myocardial infarction was not the reason Lewis could not return to work ... [Although Lewis is almost totally disabled, there is evidence to support a finding that only a small portion, i.e. ten percent, of loss of ability to earn is attributable to the myocardial infarction brought on by work and heart disease." Lewis v. The 4-E Corporation, 469 So. 2d 594 (Ala.Civ.App.1984).
The issue raised by the petition for writ of certiorari is whether it was proper to uphold the award of 10% permanent disability based on an apportionment of the permanent disability award between the portion of the disability caused by the heart attack and the portion of the disability caused by the preexisting condition.[1] Apportionment of disability awards in workmen's compensation cases between work related accidents and preexisting injuries or infirmities is provided for in § 25-5-58, Code of Alabama (1975), which states:
*601 Both the majority of the court below and the respondent in its brief to this Court relied on § 25-5-58 without making any attempt to distinguish this case from Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So. 2d 513 (1948), or Kroger Co. v. Millsap, 280 Ala. 531, 196 So. 2d 380 (1967). Both of those opinions construed the meaning of the term "preexisting infirmity" in § 25-5-58. In Ingalls Shipbuilding, supra, the plaintiff suffered a job related back injury. Prior to the accident the plaintiff had worked for a number of years as a manual laborer without any significant back problems. The plaintiff had a preexisting arthritic condition in his back which was activated by the injury. The arthritic condition was one which might not have been disabling for an indefinite period of time had the injury not intervened. After the back injury the plaintiff was unable to do work which caused any strain whatsoever on his back. 251 Ala. at 171, 36 So. 2d at 519. In upholding an award for a permanent partial disability against a challenge that the statute now codified at § 25-5-58 was not properly applied, this Court concluded that "the term ... infirmity in [§ 25-5-58] refer[s] to a condition which affects [the plaintiff's] ability to work as a normal man at the time of the accident or which would probably so affect him within the compensable period." 251 Ala. at 173, 36 So. 2d at 521. Ingalls Shipbuilding was followed in Kroger v. Millsap, 280 Ala. 531, 196 So. 2d 380 (1967). In that case the plaintiff had a congenital back impairment which was dormant prior to the accident in question but which caused her pain following the injury. The medical testimony indicated that the latent defect might not have demonstrated itself during the compensable period but for the injury. This Court upheld an award for permanent partial disability.
As Judge Wright pointed out in his dissenting opinion, Lewis's arteriosclerosis never affected his ability to work before the heart attack. Since the attack, however, Lewis's physical activity has been limited because of the onset of severe pain. Although the pain is not caused by the infarction, the threshold at which the pain occurs is hastened by the attack and the scar on the heart caused by the attack exacerbates the pain. Because of the early onset of the pain, Lewis is now 92% disabled. Whether or when the latent disease would have manifested itself without the injury does not appear in the evidence. Lewis v. The 4-E Corporation, 469 So. 2d 594 (Ala.Civ.App.1984) (Wright, P.J., dissenting).
It is well settled that workmen's compensation is not limited to those in perfect health. If the employment aggravated, accelerated, or combined with a latent disease or infirmity to produce disability, the preexisting disability does not disqualify the claim under the "arising out of employment" requirement of the statute. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 333, 96 So. 2d 159, 164 (1957) (citing 1 Larson, Workmen's Compensation Law, 170, § 12.20). The rule is applicable to cases where a work related heart attack renders arteriosclerosis symptomatic. See Finn v. Delta Drilling Co., 121 So. 2d 340 (La.Ct.App.1960); Youngblood v. Ralph M. Parsons Company, 260 So. 2d 188 (Miss. 1972); Jamie v. State Accident Insurance Fund, 19 Or.App. 135, 526 P.2d 1039 (1974).
It appears to us that the arteriosclerosis was aggravated and rendered symptomatic by the work related injury. Since Lewis's ability to work was unaffected by the arteriosclerosis prior to the accident, and there is no evidence in the record to indicate that the condition would have become symptomatic during the compensable period but for the injury, the Court of Civil Appeals' decision affirming the apportionment of the award for permanent disability between the work related injury and the preexisting infirmity is in conflict with the decisions of this Court in Ingalls Shipbuilding and in Kroger, supra.
The decision of the Court of Civil Appeals is hereby reversed and the cause is remanded.
REVERSED AND REMANDED.
*602 TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
[1] The trial court ruled that 10% of the plaintiff's disability was attributable to the heart attack. We agree with Judge Wright's observation that the majority cited no evidence to support such a conclusion and, therefore, that it appears to be based on speculation. Resolution of that factual question is not necessary to our decision, however. | March 8, 1985 |
0b62ba78-6bdc-4d01-8e65-c1bbb444e4f4 | Union Camp Corp. v. McABEE CONST. CO. | 465 So. 2d 390 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 390 (1985)
UNION CAMP CORPORATION
v.
McABEE CONSTRUCTION COMPANY.
83-1100.
Supreme Court of Alabama.
February 8, 1985.
*391 Robert D. Hunter and Sally Sharp Reilly of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
William C. Wood of Norman, Fitzpatrick & Wood, Birmingham, for appellee.
FAULKNER, Justice.
Union Camp Corporation appeals from a summary judgment granted in favor of third-party defendant McAbee Construction Company.
On January 11, 1982, Union Camp and McAbee entered into a contract whereby McAbee contracted to clean steel tanks owned by Union Camp. The contract included an indemnity and waiver provision, set forth as follows:
James Hamner, an employee of McAbee, was injured while cleaning one of Union Camp's steel tanks. Hamner and his wife filed a personal injury action against Union Camp and several other defendants, alleging that he was injured in the line and scope of his employment, as a result of the negligence of Union Camp, while working on Union Camp's premises.
Subsequently, Union Camp filed a third-party complaint against McAbee, Hamner's employer. The complaint sought indemnity, in accordance with the contract, for any judgment ultimately obtained by Hamner against Union Camp.
Union Camp filed a motion for summary judgment against McAbee, based upon the waiver and indemnification clause of the contract. McAbee thereafter filed a motion to dismiss the third-party complaint. Upon hearing the motions, the trial court treated McAbee's motion to dismiss as a motion for summary judgment, and granted summary judgment in favor of McAbee. Union Camp appeals.
The issue presented is whether a contractual provision which allows third-party indemnity and waiver of an employer's statutory immunity under the workmen's compensation statute, is a violation of the mandates of the Workmen's Compensation Act.
We affirm on the authority of Paul Krebs & Associates v. Matthews & Fritts Construction Co., 356 So. 2d 638 (Ala. 1978). In Paul Krebs, this court answered in the affirmative the issue of "whether an employer's statutory immunity from suits on account of injury to employees under [the workmen's compensation statute] protects the employer from suits by third parties seeking indemnity (under contractual *392 provisions) from claims arising out of injuries sustained by employees of the same employer." The court emphatically held that employers were protected by statute from such suits and found that an employer would therefore not be held liable. Paul Krebs, supra. See also, Stauffer Chemical Co., Inc. v. McIntyre Electric Service, Inc., 401 So. 2d 745 (Ala.1981).
Union Camp argues that in this case McAbee waived its rights under the workmen's compensation statute, and, therefore, that Paul Krebs does not apply. We disagree. Paul Krebs unequivocally states:
In this case Union Camp is attempting to circumvent the mandates of Paul Krebs and to bypass the protective provisions of the workmen's compensation statute. This we cannot allow. Accordingly, we uphold the judgment of the trial court.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | February 8, 1985 |
99435681-d277-43cb-8fe8-3508b43ed1aa | Ex Parte Riley | 464 So. 2d 92 | N/A | Alabama | Alabama Supreme Court | 464 So. 2d 92 (1985)
Ex parte Marion Elizabeth Ford RILEY.
(In re: J. Ronald ROBERSON v. Marion Elizabeth Ford RILEY).
83-978.
Supreme Court of Alabama.
January 4, 1985.
*93 G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for petitioner.
J. Robert Faulk, Prattville, for respondent.
JONES, Justice.
Marion Elizabeth Ford Riley petitions this Court to review a decision of the Court of Civil Appeals, 464 So. 2d 90, favorable to the Respondent, J. Ronald Roberson.
During their marriage, Riley and Roberson executed a joint promissory note to Riley's parents for $12,000. The divorce decree dissolving the marriage of Riley and Roberson incorporated the terms of a separation agreement containing fifteen paragraphs of specific provisions. Under the agreement, Riley was given custody of the children and the use of the home and furnishings. Paragraph 10 of the agreement made Roberson liable for all debts incurred by the parties during their marriage.
Roberson subsequently filed a petition for modification of the divorce decree, which petition was granted. The modification order entered by the trial court deleted all paragraphs of the initial settlement agreement and substituted therefor paragraphs "A" and "D," giving custody of the children and title to and use of the home and furnishings to Roberson and allowing visitation rights to Riley. Riley appealed from this modification order to the Court of Civil Appeals, attacking the custody and property settlement provisions substituted for the paragraphs of the original settlement agreement. The conclusion of Riley's brief to the Court of Civil Appeals, however, requested that court to "reverse and render all provisions of the Trial Court's judgment except for Paragraph C [dealing with title to the residence] (or alternatively to reverse and remand)."
The Court of Civil Appeals "Reversed and Remanded [the modification order] for Entry of a Judgment Not Inconsistent with [Its] Opinion." That opinion discussed the issues of child custody and property settlement, but made no mention of the specific paragraphs of the divorce decree which the modification order had apparently deleted. Roberson v. Roberson, 370 So. 2d 1008 (Ala. Civ.App.1979).
Following the reversal of the modification order, the trial court entered a bench note ordering that custody of the children be returned to Riley and that Roberson resume support payments. The trial court also issued an order establishing Roberson's visitation rights. No other orders were entered in the case. Roberson continued to pay the monthly installments due on the promissory note to Riley's parents, but subsequently ceased those payments. Riley's parents sued Roberson on the balance due on the note. Roberson impleaded Riley on the ground that the reversal of the modification order had not reinstated Paragraph 10 of the divorce decree. The trial court granted Riley's motion for summary judgment (thereby denying contribution from Riley) and denied Roberson's motion for reconsideration.
The Court of Civil Appeals in the present case reversed the trial court's order granting summary judgment to Riley and remanded the cause. We granted Riley's petition for certiorari.
The issue presented is whether the first opinion of the Court of Civil Appeals reversing the modification order totally annulled that order and reinstated the provisions *94 of the original divorce decree, thereby reviving Paragraph 10 of the decree making Roberson solely responsible for the payment of the promissory note. We find that it did and we reverse.
Roberson advances the compelling argument that, because Riley's brief appealing the modification order raised specific issues of child custody and property settlement, only those two issues were affected by the Court of Civil Appeals' reversal of the modification order. Indeed, it has long been the law in Alabama that failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal. An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. Humane Society of Marshall County v. Adams, 439 So. 2d 150 (Ala.1983); Boshell v. Keith, 418 So. 2d 89 (Ala.1982); McNeill v. McNeill, 332 So. 2d 387 (Ala.Civ.App.1976); Melton v. Jackson, 284 Ala. 253, 224 So. 2d 611 (1969); Pappas v. Alabama Power Company, 270 Ala. 472, 119 So. 2d 899 (1960); Schneider v. Southern Cotton Oil Co., 204 Ala. 614, 87 So. 97 (1920). This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument. Brittain v. Ingram, 282 Ala. 158, 209 So. 2d 653 (1968); Reynolds v. Henson, 275 Ala. 435, 155 So. 2d 600 (1963) (later appeal dismissed on other grounds, 277 Ala. 424, 171 So. 2d 240 (1965)).
Notwithstanding the basic validity of the foregoing, we find that the rule of law contained in these cases proffered by Roberson is not dispositive of the issue raised by the instant case. Equally wellsettled in the law of Alabama is the principle that a judgment is a legal entitya single unitthe reversal of which annuls it in its entirety and vacates all rulings that are contained within it. Millican v. Mintz, 251 Ala. 358, 37 So. 2d 425 (1948); Sovereign Camp, W.O.W. v. Moore, 235 Ala. 117, 177 So. 642 (1937); Marsh v. Elba Bank & Trust Co., 205 Ala. 425, 88 So. 423 (1920); Brotherhood of Painters, Decorators and Paperhangers of America v. Trimm, 19 Ala.App. 429, 97 So. 770 (1923).
Here, the issues raised by Riley's earlier appeal from the modification order, namely child custody and property settlement questions, were the only issues affirmatively addressed by the substituted provisions of the modification order. That order deleted all the provisions of the original divorce decree and substituted in lieu thereof four paragraphs which A) gave custody of the children to Roberson, B) gave visitation rights to Riley, C) gave right and title to the residence to Roberson, and D) gave right and title to all household goods to Roberson.
Riley's brief in that first appeal delineated the issues as involving child custody and property settlementthe entire subject matter of the limited provisions of the order she sought to have reversed. The opinion and judgment of the Court of Civil Appeals, then, annulled the modification order in its entirety (as if it had never existed), thereby restoring Riley and Roberson "to their rights as they were before [the modification order] was rendered," i.e., making them again governed by the provisions of the original divorce decree, including Paragraph 10. Williams v. Simmons, 22 Ala. 425 (1853). See, also, Shirley v. Shirley, 361 So. 2d 590 (Ala.Civ.App.1978); Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 119, 47 So. 2d 449 (1950); Brotherhood of Painters, supra; Simmons v. Price, 18 Ala. 405 (1850).
Roberson argues that Riley's failure to raise the issue of repayment of marital debts (Paragraph 10) in her appeal from the modification order now precludes her from asserting the validity of Paragraph 10 in the instant case. This contention is without merit. Riley's appeal from the modification order sought the reversal of that order, a reversal which would annul the terms of the order, and sought to reinstate the provisions of the decree it had replaced. Reversal of the entire modification order was in no way dependent upon any argument *95 regarding the validity of the provisions of the original divorce decree. The four paragraphs of the modification order were substituted in lieu of the original divorce decree, all of the provisions of which were specifically deleted by the terms of the modification order. It was the reversal of the modification order, however, that revived the fifteen paragraphs of the divorce decree and restored Riley and Roberson to their rights under that earlier decree.
Upon remand of the earlier proceeding (reversal of the modification order), the trial court, either upon its own motion or upon the motion of either of the parties, could have re-entered a modification order consistent with the Court of Civil Appeals' decision of reversal. Because this was not done, the only viable order affecting the rights of the parties was the original decree of divorce.
REVERSED AND REMANDED.
MADDOX, FAULKNER, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., concurs in the result.
ALMON, J., not sitting. | January 4, 1985 |
8a7e9ff1-7ef5-4586-b8d1-be7d21a11584 | Ex Parte Callahan | 471 So. 2d 463 | N/A | Alabama | Alabama Supreme Court | 471 So. 2d 463 (1985)
Ex parte James Harvey CALLAHAN.
(In re James Harvey Callahan v. State of Alabama).
82-1172.
Supreme Court of Alabama.
February 8, 1985.
Rehearing Denied April 5, 1985.
Fred Ray Lybrand, Wilford J. Lane and John Thomason, Anniston, for petitioner.
Charles A. Graddick, Atty. Gen., and Edward Carnes and William D. Little, Asst. Attys. Gen., for respondent.
PER CURIAM.
A writ of certiorari was granted to the Court of Criminal Appeals to review the *464 death penalty judgment, pursuant to Code 1975, § 12-22-150, and Rule 39, A.R.A.P.
Our primary concern is whether certain inculpatory statements made by the Petitioner were properly admitted into evidence. The Attorney General asks this Court to overrule Cagle v. State, 45 Ala. App. 3, 221 So. 2d 119, cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969), and properly states the Petitioner's contention as follows:
The Petitioner made two separate incriminating statements, the first on February 23, 1982, and the second on February 24, 1982. Concededly, the initial statement was not prefaced by appropriate Miranda warnings. The State contends that, because the confession of February 24 (the one admitted into evidence) was predicated upon a valid Miranda warning, the burden shifted to the defendant to show the specifics of those Miranda rights not read or stated to him before the February 23 confession.
The proper questions for resolution are whether a second confession obtained after a proper Miranda warning was given is rendered inadmissible if it is the progeny of a previous illegally elicited confession, and who has the burden of showing that the second confession was or was not illegally tainted by the first.
Extrajudicial confessions are prima facie involuntary and inadmissible, and the burden is on the State to prove that the confession was made voluntarily, C. Gamble, McElroy's Alabama Evidence, § 200.02(1) (3d ed. 1977). The cases which support this ancient proposition are legion and are collected in 6 Ala.Digest Criminal Law, Key Numbers 516, 517, 517.1, 519.
After the decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the State is required to lay two predicates before a confession is admissible. The first predicate requires a showing of voluntariness, i.e., absence of coercion or offer of reward, etc., and the second requires the State to prove that a proper Miranda warning, i.e., the right to remain silent and the right of counsel, etc., was given prior to any questioning by the police.
As Cagle v. State, 45 Ala.App. 3, 221 So. 2d 119, cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969), points out, the precise question before us was decided by the United States Supreme Court in Westover v. United States, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Westover decision, incidentally, is incorporated in the Miranda decision, supra.
Id., 384 U.S. at 495-497, 86 S. Ct. at 1638-1640.
The Court held that it could not find that Westover, prior to the time he made the second statement, knowingly and intelligently waived his right to remain silent and his right to consult with counsel.
The Miranda decision makes it abundantly clear that a heavy burden rests on the state to show a waiver of a constitutional right:
Id., 384 U.S. at 475, 86 S. Ct. at 1628.
In Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the United States Supreme Court was concerned with what effect to give the evidentiary exclusionary rule where narcotics were discovered as a result of illegally induced declarations of a co-defendant. In that regard the Court observed:
Id., 371 U.S. at 487-488, 83 S. Ct. at 417-418.
While it may be argued that Wong Sun is not exactly in point, it is nevertheless instructive as to what the considerations of a court must be in deciding the admissibility of evidence which was gained in part or totally by exploitation of previous illegal conduct. In this regard, however, the Court stated:
Id., 371 U.S. at 486, 83 S. Ct. at 416.
Actually, the fundamental principle which we address in this case was decided by this Court prior to the Miranda decision. In Huntley v. State, 250 Ala. 303, 34 So. 2d 216 (1948), Chief Justice Gardner wrote:
Id., 250 Ala. at 306-307, 34 So. 2d at 219-220.
Our review of the decisions of the federal courts shows that they uniformly follow *467 this rule. The following is a typical statement:
United States v. Lee, 699 F.2d 466, 468 (9th Cir.1982) (citations omitted).
See also, e.g., Fisher v. Scafati, 439 F.2d 307 (1st Cir.1971), cert. denied, 403 U.S. 939, 91 S. Ct. 2256, 29 L. Ed. 2d 719 (1971); United States ex rel. Hughes v. McMann, 405 F.2d 773 (2d Cir.1968); United States v. Nash, 563 F.2d 1166 (5th Cir.1977); Gilpin v. United States, 415 F.2d 638 (5th Cir.1969); Holleman v. Duckworth, 700 F.2d 391 (7th Cir. 1983); Evans v. United States, 375 F.2d 355 (8th Cir.1967), rev'd sub. nom. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), appeal after remand, 416 F.2d 310 (1969), cert. denied, 397 U.S. 1014, 90 S. Ct. 1248, 25 L. Ed. 2d 428 (1970); United States v. Robinson, 439 F.2d 553, 142 U.S.App. D.C. 43 (D.C.Cir.1970).
It is then clear that Cagle, supra, and Swicegood v. State, 50 Ala.App. 105, 277 So. 2d 380 (1973), have a solid foundation in constitutional law and are hereby affirmed. Indeed, to attempt to overrule these cases would be but an effort to overrule the United States Supreme Court, a power which does not reside with this Court.
The judgment of the Court of Criminal Appeals, 471 So. 2d 447, is reversed and the cause remanded with instructions to remand to the circuit court for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
EMBRY, J., dissents with opinion in which FAULKNER, J., joins.
EMBRY, Justice (dissenting):
I will address the issue raised by the petitioner with respect to part eight of the opinion of the Court of Criminal Appeals. By way of letter brief, requested by this court following oral argument, the State aptly poses the issue here presented:
The State's brief continues:
At the expense of repetition, this case presents a situation where the petitioner made two separate incriminating statements, the first on 23 February 1982, the latter on 24 February 1982. Concededly, the initial statement was not prefaced by appropriate Miranda formalities. Likewise, *468 there is no question that the later statement was properly predicated pursuant to the guidelines of Miranda. Against this backdrop, petitioner argues that the initial deficiency, enveloping his 23 February statement, taints, and thus renders inadmissible into evidence, any confession he may have made on 24 February. See Swicegood, supra; and Cagle v. State, 45 Ala. App. 3, 221 So. 2d 119 (1969). I do not agree.
In effect, the State contends that, because the confession of 24 February (the one admitted into evidence) was predicated upon a valid Miranda warning, the burden shifted to the defendant to show the specifics of those Miranda rights not read or stated to him before the 23 February confession was given by him. To the extent Swicegood, Cagle, and subsequent cases hold otherwise, I would overrule those cases in that regard.
FAULKNER, J., concurs.
PER CURIAM.
In its brief on application for rehearing, the State takes us to task for misconstruing its argument. It asserts that the first issue is whether the State sufficiently proved that the "first" confession on February 23 was preceded by adequate Miranda warnings. If not, says the State, there arises the second issue of whether the State met its burden of proving that the "second" confession of February 24, admitted into evidence, was sufficiently remote from the earlier confession so as to remove the taint of the improperly elicited confession. After the State filed its application for rehearing, the United States Supreme Court announced its decision in Oregon v. Elstad, ___ U.S. ___, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). That decision makes it relevant whether the initial questioning is "uncoercive."
The parties originally presented the issues in a narrow fashion which led this Court to take as fact the existence of only two confessions. In truth, there was not one "first" confession on the 23rd as to which there was some evidence of a prior Miranda warning; Callahan gave several statements during the course of persistent questioning on the 22nd and the 23rd. Even the district attorney admitted this during voir dire testimony concerning the admissibility of any of the alleged statements:
Reporter's Transcript, p. 265 (emphasis added). Furthermore, in complying with a discovery order, the State notified the court that it had given Callahan a copy of a written statement he had signed on the 22nd.
The State never did offer any of these prior statements nor seek to prove that Callahan was given any Miranda warnings on the 22nd. The only arresting officer who testified said unequivocally that Callahan was not given any Miranda warnings when he was arrested. The only testimony regarding Miranda warnings given to Callahan on the 23rd prior to the statements made on that day was the following by an assistant district attorney:
The only waiver which the State offered was signed at 12:07 p.m. on February 24.
The State argues that this Court should overrule Swicegood v. State, 50 Ala.App. 105, 277 So. 2d 380 (1973), and a series of Court of Criminal Appeals cases following it, including Thomas v. State, 370 So. 2d 1066 (Ala.Crim.App.1978), writ quashed, 370 So. 2d 1070 (Ala.1979). The Court of Criminal Appeals in Swicegood held that a generalized statement that "we read him his rights" is not a sufficient predicate for the introduction of a confession. The State now asks us to hold that such a showing is prima facie sufficient and shifts the burden to the defendant to show that the State did not give some of the specific warnings required for a voluntary, informed confession.
The State's argument begs the question. The State made no showing of any warnings given on the 22nd, and the series of questioning and statements is essentially continuous.
Callahan was arrested at 5:00 a.m. on February 22. He was questioned all that day and at least off and on during the 23rd. Callahan sought to introduce testimony that he had not slept and that the deputies would not let him eat and otherwise coerced him into giving information on the 22nd and 23rd. Information which Callahan gave during this period was incorporated into a consent form which the D.A. prepared on the 24th and Callahan signed on that date. This consent form and the accompanying waiver of right to counsel led directly to the confession on the afternoon of the 24th which the trial court admitted into evidence.
On the afternoon of the 23rd, attorney Fred Ray Lybrand came to the jail at the request of Callahan's father. The deputies would not let Lybrand see Callahan until Lybrand got Judge Monk to come to the jail. Judge Monk went into the room where the deputies were questioning Callahan. Judge Monk stated for the record that he "basically advised [Callahan] of his Miranda rights and he [Callahan] stated that he wished to speak with Mr. Lybrand." Callahan spoke with Lybrand and the deputies did not question him further that day.
On the morning of the 24th, Lybrand told the D.A. that he could not represent Callahan because of his connections with the victim's family. The deputies testified that, later that morning, Callahan sent word that he wanted to talk to them. At 12:07 p.m. he signed a waiver of counsel (Ex. 13), and a "consent" form (Ex. 12), agreeing "to accompany Deputy Sheriff M.L. Kirby and other law enforcement officers to the area or place I believe Becky Howell's boots, socks and other items of clothing may be located." The sheriff proceeded to take Callahan to the scene of the crime and other places to which Callahan directed him.
*470 During this time on the afternoon of the 24th, Callahan's present counsel, Wilford J. Lane, came to the sheriff's office and tried to inform the sheriff that he was representing Callahan. A deputy told Lane that the sheriff had taken Callahan away from the jail but would not say where. He apparently made a perfunctory attempt to call the sheriff on the radio and told Lane he was unable to reach the sheriff. The two occasions on which the deputies were reluctant to help Callahan's attorneys reach him, and the apparent failure to tell him that his initial counsel had withdrawn, raise questions not only of a coercive atmosphere of the questioning but also of a possible infringement of Callahan's 6th Amendment right to assistance of counsel. Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).
During the questioning which occurred before Judge Monk advised him of his Miranda rights on the 23rd, Callahan had told the deputies about throwing the victim's boots out of his truck. Thus the consent form shows on its face that it is tainted by the prior testimony. Callahan's attorney objected to the testimony about his leading the sheriff on the search pursuant to the consent form on the ground that it was tainted, but the court merely ruled that because Lybrand withdrew on the morning of the 24th, any statement taken after that was not in violation of Callahan's right to counsel.
After extensive continued voir dire, the court ruled that Callahan signed the waiver and consent forms voluntarily. The sheriff proceeded to testify how Callahan, shortly after signing the waiver and consent, took him to the scene of the kidnapping and led him through the various steps of the crime. Thus, there was admitted over objection evidence which came about as a direct result of the waiver and consent as to which the State did not meet its burden of showing that it was not tainted by the prior illegally obtained confessions.
Oregon v. Elstad, supra, explicitly addresses only the situation where the initial confession occurs under uncoercive circumstances. In that case, the arresting officers went to Elstad's house with a warrant for his arrest. While one officer was talking to Elstad's mother in another room, another officer asked him three questions, to which he responded, admitting that he had participated in the burglary for which he was being arrested. Later, at the police station and after proper Miranda warnings, he waived his right to remain silent and candidly admitted his participation in the burglary. The United States Supreme Court held that the Fifth Amendment of the United States Constitution did not require the exclusion of the subsequent confession from evidence, because both the first and second confessions were given voluntarily.
The situation here is quite different. The police questioned Callahan intensively for two days before he confessed on the third day. Apparently he initially denied knowledge of the crime, and even after confessing to being with the victim, he maintained that he had not killed her. The officers took a signed confession on the 22nd and 117 pages of stenographically-recorded confessions on the 23rd, but did not seek to introduce any of this material.
Over and above the inevitable coercive atmosphere of such questioning, Callahan testified on voir dire that his interrogators threatened him with their guns and fists, although the officers denied this. He made a telephone call to his father, but the attorney whom his father sent only reached him with the help of the circuit judge. Notwithstanding any dispute in the testimony as to what actually took place during the questioning, the operative facts of this three-day questioning in the police station are sufficient to distinguish this case from Elstad. We certainly cannot say from this record that this questioning was uncoercive within the meaning of Elstad or that it did not impermissibly taint the later confession which the trial court admitted into evidence.
As the cases discussed in the original opinion establish, the burden is on the State to show the proper predicates for the *471 admission of an extra-judicial confession: lack of coercion, proper Miranda warnings, etc. The State also has the burden of showing that a subsequent, properly taken confession was not tainted by a prior, improperly taken confession. The record must affirmatively show that these burdens have been met. The record in this case does not come close to showing that the State has met its burden. Oregon v. Elstad lowers the State's burden, but it does not eliminate it.
OPINION EXTENDED; APPLICATION OVERRULED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
FAULKNER and EMBRY, JJ., dissent.
MADDOX, J., dissents with opinion.
MADDOX, Justice (dissenting):
On original deliverance I concurred in the majority opinion, but became convinced, on application for rehearing, even before the Supreme Court of the United States decided Oregon v. Elstad, ___ U.S. ___, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), that the majority opinion was incorrect. I came to this conclusion based upon my further review of the record, which showed, in my judgment, that the confession which was admitted into evidence was not tainted in any way by any police conduct which preceded the defendant's making it. After studying Elstad, I am convinced more than ever that the State's application for rehearing should be granted.
Although I recognize the limited scope of Elstad, I nevertheless believe that the rule of law set forth in that opinion is applicable to the facts of this case. In Elstad, the Court held:
5 "JUSTICE BRENNAN, with an apocalyptic tone, heralds this opinion as dealing `a crippling blow to Miranda.' ... JUSTICE BRENNAN not only distorts the reasoning and holding of our decision, but, worse, invites trial courts and prosecutors to do the same." (Emphasis added.)
The majority discusses the effect of Elstad, and distinguishes it, as I understand the majority's opinion, on the ground that the facts of this case are substantially different from those in Elstad, and that here the State failed to meet its burden of showing that the prior statements made by Callahan *472 were free and voluntary. I cannot agree with this conclusion. As the majority admits, there was extensive voir dire, after which the court ruled that Callahan signed the waiver and consent forms voluntarily. (Emphasis added.) The actual finding by the court was as follows:
Admittedly, there was testimony, if believed, which would have supported his theory that the statements which he made on the 22nd and 23rd were not only inculpatory, but were also involuntary. On the other hand, there was testimony which showed, as the majority states in the extension of the original opinion, that Callahan "initially denied knowledge of the crime, and even after confessing to being with the victim, he maintained that he had not killed her." (Emphasis added.) Furthermore, the record shows, and the majority admits, that "[t]he deputies testified that, later that morning [the 24th], Callahan sent word that he wanted to talk to them." (Emphasis added.)
The relevant inquiry, as I view it, is: Was the confession made on the 24th voluntary, or was it tainted by the prior statements made by Callahan on the 22nd and 23rd? The rule of law in such circumstances is set out in Elstad.
In Elstad, a majority of the Supreme Court held that "The relevant inquiry is whether, in fact, [a] second statement [the one admitted into evidence here] was ... voluntarily made," and that "[a]s in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." In Elstad, the Court added that "[t]he fact that a suspect chooses to speak after being informed of his rights, is, of course, highly probative."
Here, the trial court did "examine the surrounding circumstances and the entire course of police conduct with respect to [Callahan] in evaluating the voluntariness of his statements," and concluded that they were voluntarily made. I would affirm his finding of fact. There is no question that the conduct and confession made by Callahan on the 24th were voluntary, and the court could have found that Callahan initiated the action which led to his signing of the consent form and the confession on the 24th. Furthermore, the trial court was authorized to find that Callahan chose to speak after being advised of his rights. This fact was "highly probative." Elstad.
The majority examines the surrounding circumstances and the entire course of police conduct with respect to Callahan and finds that it was coercive. Of course, I disagree with that finding, because I believe that the trial judge was authorized to find, as he did, that there was not "any substantial credible evidence that the defendant was in any way abused or threatened or denied access to a telephonedenied communications to anyone that he wished to communicate with or that he was in any way forced to sign the two exhibits that are in issue...." (Emphasis added.)
Apparently, the majority feels that under the facts shown in the record, the police conduct here was "inherently coercive" and undermined Callahan's will to invoke his rights once they were read to him. I cannot say, as a matter of law, that is true. I think it was a factual question.
Consequently, I would grant the State's application for rehearing and affirm the judgment of the Court of Criminal Appeals; therefore, I respectfully dissent. | February 8, 1985 |
ce8eac5a-8f3e-4a08-aaa6-eea6102c4a79 | Alabama Power Co. v. Cummings | 466 So. 2d 99 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 99 (1985)
ALABAMA POWER COMPANY
v.
Helen Earnest CUMMINGS, et al.
83-745.
Supreme Court of Alabama.
February 15, 1985.
*100 James A. Bradford of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, and Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant.
Jack Drake and Joseph G. Pierce of Drake, Knowles & Pierce, Tuscaloosa, for appellees.
FAULKNER, Justice.
Helen Cummings brought this action against Alabama Power Company for damages to her property allegedly caused by the collapse of an underground coal mine owned by the defendant. A jury awarded Cummings $35,000.00 in damages. Alabama Power Company appeals. We affirm.
Cummings's home sits above the Gorgas Mine, America # 3, in Walker County, Alabama. The mine is located 240 feet below the surface and was last worked in 1948. In May of 1979, Cummings first noticed cracks in her back porch. Soon afterward, cracks began to appear elsewhere in her home. Floors became unlevel, the chimney pulled away from the wall, the foundation began to separate from the house and doors ceased closing properly. The property around the house also began showing signs of distress. Depressions, or holes, began to appear in Cummings's yard.
The thrust of Alabama Power's argument on appeal was that Cummings had not met her burden of proof and, therefore, was not entitled to prevail. It makes three arguments in support of that position. *101 First, it contends that there was no evidence from which the jury could have found that its mine had, in fact, collapsed. Second, it argued that Cummings should not have been allowed to prove damages which occurred subsequent to the filing of her complaint. Third, it argued that Cummings's evidence as to the market value of her house before and after the damage had occurred should have been excluded.
The only testimony linking the defendant's operation of its mine to the damages incurred by Cummings was the testimony of Cummings's expert, a geologist named Stephen Jordan. Jordan is a professor at the University of Alabama at Birmingham. Jordan teaches geomorphology, the study of why the surface of the earth looks the way it does and the processes involved in making it look that way. He also teaches engineering geology, which involves a study of the construction of tunnels and other underground openings. Jordan observed the damage to Cummings's house and property and examined Alabama Power Company's map of the mine and the deposition given in this case by an Alabama Power Company safety engineer, Phil Douglas. Jordan testified that, based on his observations, the map, Douglas's deposition, and his knowledge of the various geological causes of such phenomena, it was his opinion that the collapse of Alabama Power Company's mine had caused the damage. On cross-examination Jordan conceded that his opinion was based solely on his observations of the surface and that, not having seen the collapse, he could not state, as a matter of fact, that the mine had collapsed. Alabama Power argued that since a jury's verdict cannot be based on speculation or conjecture, Thompson v. Lee, 439 So. 2d 113 (Ala.1983); McDowell & McDowell, Inc. v. Barnett, 277 Ala. 302, 169 So. 2d 324 (1964), the jury could not find that the mine had collapsed and had caused the damage.
We disagree. Jordan's opinion as to the cause of the land subsidence constituted competent evidence as to the cause of the injury. Land owners often must rely on circumstantial evidence to establish that the collapse of an underground mine caused damage to their property. Woodward Iron Co. v. Mumpower, 248 Ala. 502, 506, 28 So. 2d 625, 627 (1947); Woodward Iron Co. v. Earley, 247 Ala. 556, 558, 25 So. 2d 267, 268 (1946). An Alabama Power Company mine safety engineer testified that he had no knowledge of the condition of the mine because it was inaccessible. Jordan enumerated the likely causes of land subsidence of the type which occurred on Cummings's land and explained why he had eliminated each of the probable causes other than mine collapse from his consideration in reaching his conclusion. A properly predicated opinion by a duly qualified expert constitutes evidence from which a finding can be made. See, e.g., Crawford Coal Co. v. Stephens, 382 So. 2d 536, 539 (Ala.1980).
Cummings first noticed the cracks in her porch in May of 1979. As time passed she began to notice other indications of damage. Doors would not shut properly; gaps appeared where none had previously existed. The damage continued to worsen as time passed. She filed her original complaint in March of 1980, well within the one year statute of limitations. Between the time the complaint was filed and the time the case was tried, she incurred additional damage. Immediately prior to the trial, Cummings amended her complaint to state a claim for the damage occurring subsequent to the filing of the original complaint. Alabama Power Company filed a motion in limine, seeking an order preventing the plaintiff from proving any damages that did not occur within one year prior to filing the suit. In support of its motion it relied on Sloss-Sheffield Steel & Iron Co. v. Sampson, 158 Ala. 590, 48 So. 493 (1909), and Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979). During the trial the defendant objected to the introduction of any evidence as to damages incurred after *102 the complaint was filed and it moved to exclude that evidence from the jury's consideration. On appeal, it argues that the trial court erred in not excluding the evidence.
The rule Alabama Power Company relies on as a basis of its objection is inapposite to these facts. In actions such as this, the plaintiff's cause of action accrues, and the statute of limitations begins to run, when the defendant's negligence causes the damage complained of. The limitations period is one year. The plaintiff must, therefore, bring her action within one year of the date on which the damage occurred. The damage to Cummings's house first occurred in May of 1979. In order to bring an action for that damage, Cummings was required to file suit within one year, which she did. After she filed her complaint, she incurred additional damage. If she had failed to file her complaint until after May of 1980, she could not have recovered for damages she incurred in May of 1979. She could, however, have stated a cause of action for the later damage, so long as the damage was incurred within one year of the filing of the complaint. If Cummings had brought the action after May of 1980, but within one year of the subsequent damages, the rule relied on by the defendant would have been applicable. She would have been able to recover only those damages she incurred within one year prior to filing the complaint. That result would have been occasioned by the operation of the statute of limitations. That is, she would have been allowed to recover damages only for the injuries incurred within the period of the statute of limitations. Cummings did not wait until after May of 1980 to file her complaint, however. She filed the action in March. The defendant attempts to turn the rule on its head and apply it to damages incurred after the complaint was filed. There is no logical reason to do so. All of the damages claimed occurred within the limitations period.
Alabama Power Company makes a second argument regarding the damages which occurred after the complaint was filed. It points out that amendment of a complaint to set forth occurrences which happened after the complaint was filed is governed by Rule 15(d), A.R.Civ.P. Alabama Power Company argues that notice must be given and leave of court obtained before filing such an amendment. See Committee Comments to Rule 15(d), A.R. Civ.P. Since the plaintiff failed to give it notice and failed to obtain leave of court before filing the amendment, Alabama Power Company argues that its objections to the introduction of testimony regarding damage which was incurred after the complaint was filed should have been sustained.
If Alabama Power Company was unprepared to defend against a claim of damages which occurred subsequent to March of 1980 because of the plaintiff's failure to notify it prior to filing the amendment, that ground should have been stated at trial. Instead, the only issue raised was the one previously discussed. The error, if any, was not properly preserved for review.
Finally, Alabama Power Company argues that Cummings should not have been allowed to testify as to her opinion of the before and after value of the property. Alabama Power argues that Cummings's opinion as to the value of the property was based only on the current selling prices of other houses. Therefore, it argues that she had no experience enabling her to know the value of the property and that its objections to her testimony should have been sustained.
The record does not support the power company's contention. The record shows that Cummings testified that in her opinion her house was worth $60,000.00 before the house began to fall apart and that it was worth $1,000.00 afterwards. This constituted before and after value. The general rule is that the owner of real estate is competent to testify as to its *103 value. Roberson v. McCarley, 259 Ala. 583, 585, 67 So. 2d 814, 816 (1953); Alabama Great Southern R. Co. v. Russell, 35 Ala.App. 345, 350, 48 So. 2d 239, 244 (1949). It is undisputed that Cummings owned the property and, by virtue of the fact that she lived on it, was familiar with it. She was, therefore, competent to testify as to her property's damage.
Cummings filed a motion for damages pursuant to Rule 38, A.R.A.P., for filing a frivolous appeal. The motion is denied. The decision of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | February 15, 1985 |
15c5e1c6-f7d8-4dcf-b81b-8fcc8c0bb600 | P & S BUSINESS v. South Cent. Bell Telephone | 466 So. 2d 928 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 928 (1985)
P & S BUSINESS, INC., a corporation,
v.
SOUTH CENTRAL BELL TELEPHONE COMPANY, a corporation.
83-1058.
Supreme Court of Alabama.
February 22, 1985.
Leo E. Costello of Costello & Stott, Birmingham, for appellant.
*929 Anita Leslie Miller, Birmingham, for appellee.
BEATTY, Justice.
This is an appeal from a summary judgment entered against plaintiff in an action based upon fraud and breach of contract. We affirm.
The action grew out of a listing contract between South Central Bell Telephone Company (Bell) and P & S Business, Inc. (P & S). P & S was listed in the business "white pages" section of the 1982 Birmingham telephone directory under various trade names. For example, following the various listings for "IBM CORP" in the 1982 directory, there appeared in bold black type a listing for "IBM TYPEWRITER SERVICE & SUPPLIES, 4511 5th Av S 595-8322," which was a listing for P & S.
In January 1983, P & S contracted with Bell for the listing of the following trade names in the business white pages of the 1983 Birmingham telephone directory: IBM Typewriter Service & Supplies; Olivetti Copier Service & Supplies; Olympia Business Equipment; Savin Copier Repair & Supplies; and Sharp Copier Sales, Service & Supplies. The form agreement requesting these listings was signed on behalf of P & S by Stephen Phillips on January 13, 1983. This agreement contained a number of provisions, at least two of which are relevant here[1]:
Later, and before the publication of the 1983 directory, Mr. George Dear, operations manager of Bell's directory department, received a copy of a letter from Mr. Joseph P. Thorne, a trademark-copyright attorney with the IBM Corporation, to P & S dated March 4, 1983. The letter from Mr. Thorne to P & S stated that P & S was not an authorized IBM dealer, that its use of the IBM heading was not proper, and that the listing had confused IBM Corporation's customers. The letter also told P & S to remove this heading from the next telephone directory.
As a result of Mr. Thorne's letter, Mr. Dear wrote Stephen Phillips of P & S on March 30, 1983. The closing date for the 1983 telephone directory was April 26, 1983. Mr. Dear informed P & S that Bell had received a letter from the IBM Corporation which stated P & S was not an authorized IBM dealer and that use of the IBM name in the white pages of the directory by P & S was improper and misleading to the public. Mr. Dear stated that Bell needed some evidence that P & S was authorized by the other companies to be listed, since the other listings appeared to have the same potential to be confusing and misleading. Mr. Dear stated that pursuant to the contract he was giving 15 days' notice of cancellation of a portion of the contract, and he noted that the deadline for making changes in listings and advertising was April 19, 1983.
Mr. Phillips received Mr. Dear's letter on April 6, 1983. On that same date, Mr. Phillips wrote and acknowledged receipt of Mr. Dear's letter; however, P & S did not *930 give Bell proof that P & S was authorized to do business by the companies in question. Mr. Phillips asserted that P & S sold numerous IBM typewriters every month and could furnish billings and checks proving payment. Mr. Phillips also asserted that from April 6, the date of receipt of the letter, to April 19 was insufficient notice.
In July 1983, when the new directory came out, the white pages advertising for P & S was not included in the directory. P & S sued Bell and L.M. Berry Company (not a party to this appeal) for fraudulent misrepresentation and breach of contract. In due course, Bell moved for summary judgment, based upon the affidavit of George Dear and other documents, including copies of the correspondence referred to above as well as copies of the listing contracts. On June 29, 1984, after a hearing, the trial judge granted Bell's motion for summary judgment and entered a final judgment under the provisions of Rule 54(b), A.R.Civ.P. On June 21, 1984, P & S filed a notice of appeal to this Court. On August 20, 1984, Bell filed in this Court a motion to strike plaintiff's brief. Because of our decision on the merits of plaintiff's claim, we need not reach the motion to strike plaintiff's brief.
Did the trial court err in granting summary judgment on the fraud count of P & S?
The elements of fraud are (1) a false representation (2) of a material existing fact (3) relied upon the plaintiff (4) who was damaged as a proximate result of the alleged misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala. 1981). If the fraud is based upon a promise to perform or abstain from performing some act in the future, two additional elements must be proved: (1) the defendant's intention, at the time of the alleged misrepresentation, not to do the act promised, coupled with (2) an intent to deceive. Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982).
In its complaint, P & S alleged that Bell represented that the requested additional listings of P & S in the business white pages would appear in the 1983 Birmingham telephone directory if P & S continued advertising in the yellow pages, and further alleged that Bell would not remove the additional listings if P & S left the listings exactly as they appeared in the 1982 directory. Thus, the alleged misrepresentations were based upon a promise to perform an act in the future, that is, printing the listings in the 1983 directory. Therefore, in order for P & S to prove the fraud as alleged, P & S was required to prove that Bell had a present intent to deceive P & S at the time the alleged misrepresentations were made. The record supports Bell's assertion that there were no misrepresentations; in fact, Bell informed P & S in writing prior to the directory's publication that its listings would not appear in the 1983 white pages. Contrary to the allegations of P & S, there is no evidence from which it may be inferred that Bell had no intention to publish the additional listings of P & S in the 1983 directory before it received notice from IBM that P & S was not an authorized IBM dealer. Bell, in fact, demonstrated its willingness to publish the additional listings if P & S provided evidence that it was indeed an authorized dealer of the companies in question.
Failure to perform a promised act is not in itself evidence of intent to deceive at the time the promise was made. Purcell Co. v. Spriggs Enterprise, Inc., 431 So. 2d 515 (Ala.1983). If it were, the mere breach of a contract would be tantamount to fraud. Id. Unless a plaintiff puts forth some proof that there was something more than a failure to perform, something upon which a jury could infer that at the time the promise was made the defendant had no intention of performing, it is error to submit a fraud claim to the jury. Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976). P & S failed to meet this requirement, and the trial court correctly granted summary judgment, since in its affidavit P & S put *931 forth no facts to counter the affidavit of Bell, as required by Rule 56(e), A.R.Civ.P.
Did the trial court err in granting summary judgment on the contract claim?
The principal argument of P & S is that the notice requirements of the contract are ambiguous and thus should be resolved in its favor with a holding that proper notice was not timely made. However, that argument overlooks the express language of Provision 4 of the contract between Bell and P & S. Bell had the right to cancel, without notice, the application of P & S in the event any objection was made to the use of the trade names in additional listings by P & S.
Whether a contract is ambiguous is a question of law for the trial court to determine. Haddox v. First Alabama Bank of Montgomery, 449 So. 2d 1226 (Ala. 1984). When the terms of a contract are clear and certain, it is the duty of the court and not the jury to analyze and determine the meaning of a contract. Id. The court may not construe a contract which is by its terms plain and free from ambiguity, but must enforce it as written. Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d 887 (Ala.1982). Ambiguities will not be inserted into contracts by strained and twisted meaning where no such ambiguities exist. Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So. 2d 920 (1960).
The agreement between P & S and Bell, in particular the cancellation provisions, are free from ambiguity and, accordingly, must be enforced as written. Indeed, Provision 4 appears to be peculiarly directed to situations like the present one.
Although this Court has not addressed this specific point, other jurisdictions firmly support the trial court's ruling. In South Central Bell Telephone Co. v. McKay, 285 So. 2d 563 (La.Ct.App.1973), the Louisiana court addressed the issue whether or not the telephone company had breached its contract with a subscriber when it refused to publish that subscriber's listing as a member of the National Society of Interior Designers (NSID) under the NSID classification in the yellow pages of its telephone directory. The evidence showed that the subscriber's name failed to appear in a letter from the local NSID representative listing all members of the organization. The application for the listing contained the same clause regarding trade names as the clause in the contract at issue here.
In McKay, the telephone company established that disputes frequently arose concerning the rights of individuals and firms to be listed in the yellow pages under certain trade names. To avoid involvement in such controversies, it was the telephone company's policy not to publish the name of an advertiser under a given trade name if any opposition was received or if any doubt or question arose concerning its right to use the name. For these reasons, the company chose not to publish this particular subscriber's name under the NSID classification.
The Louisiana court held that a person signing a document is presumed to know its contents and that under the contract the telephone company had the express right to delete the NSID advertising requested by the subscriber if any objection arose over his right to use such a classification. Id.
Both Bell and P & S were bound by the terms of the applications, and thus Bell was within its contractual rights in rejecting the listings of P & S when it received notice from the IBM Corporation that P & S was not an authorized IBM dealer. McKay, supra. See also Dollar A Day Rent A Car Systems v. Mountain States Telephone and Telegraph Co., 22 Ariz. App. 270, 526 P.2d 1068 (1974) (the defendant's regulatory policy for its directory held reasonable in that it bore a logical relationship to defendant's policy of avoiding questionable practices and public misdirection).
Summary judgment is appropriate in a breach of contract action where the contract is unambiguous and the facts undisputed. *932 In Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025, 1028 (Ala. 1983), the Court stated:
Because we have concluded that summary judgment was appropriate for the reasons given, we need not address other reasons brought forward by Bell which deal with tariffs which control advertisements contravening public policy.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] Provision 8 also contains a general saving clause: "This application is not binding until accepted by the Telephone Company. The Telephone Company will not be bound by any agreement not expressed herein and reserves the right to reject any advertising which it deems undesirable." | February 22, 1985 |
66d1bef4-31e9-485e-bbc4-0d8f3e331a2f | Popwell v. Greene | 465 So. 2d 384 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 384 (1985)
Mary S. POPWELL
v.
Betty S. GREENE, Helen Olene Popwell, Claudia M. Skiff, Franklin L. Shaneyfelt and James E. Shaneyfelt.
83-882.
Supreme Court of Alabama.
February 8, 1985.
*385 Kelby E. Strickland, Jr. of Strickland, Stoddard & McDuffie, Birmingham, for appellant.
Walter Cornelius, Birmingham, for appellees.
MADDOX, Justice.
This is an appeal from a judgment setting aside a warranty deed.
On May 5, 1969, Lera Bell Shaneyfelt, a patient at Bryce Hospital (Bryce), died intestate. Shortly thereafter, Mrs. Shaneyfelt's daughter, Mary S. Popwell, who had been serving as Mrs. Shaneyfelt's guardian, was named administratrix of her estate. The estate consisted of a small amount of cash and approximately eleven acres of land in Chilton County. On June 6, 1969, Bryce filed a $15,485.84 claim against the estate, apparently seeking payment for services rendered the decedent. On May 18, 1970, the plaintiffs, Mrs. Shaneyfelt's other *386 heirs, executed a warranty deed conveying their interest in the eleven acres to Mrs. Popwell. On June 10, 1983, the heirs brought suit in Chilton County Circuit Court, alleging that their execution of the deed was the result of fraud, and seeking to have the deed declared void, to have an equitable trust imposed upon the property for their benefit, and also requesting a temporary restraining order preventing Mrs. Popwell from selling or encumbering the property. The temporary restraining order was granted that same day.
After Mrs. Popwell's motion to dismiss was denied, the case was tried ore tenus without a jury on April 3, 1984. Thereafter, the trial judge entered his final decree setting aside and cancelling the deed. The decree set forth no findings of fact or conclusions of law.
Mrs. Popwell appeals here, contending that the trial court erred by: (1) admitting parol evidence of the events surrounding execution of the deed, and (2) setting aside the deed on the basis of fraud. We find no reversible error and affirm.
The heirs' basic contention at trial was that prior to execution of the deed, Mrs. Popwell convinced them that as administratrix of Mrs. Shaneyfelt's estate, she needed an undivided interest in the entire eleven acres in order to adequately defend against Bryce's claim. Four of the heirs testified that Mrs. Popwell persuaded them that the instrument they were about to sign was a power of attorney, and three heirs testified that they signed the instrument without reading it, in reliance on Mrs. Popwell's representations that it was not a deed. Three of the heirs also testified that Mrs. Popwell promised that the land would be redivided as soon as Bryce's claim was settled. The heirs claimed that Mrs. Popwell's representations were fraudulent and that, but for those fraudulent representations, they would not have executed the deed.
Since the only evidence of the alleged fraud, the testimony of the heirs, was obviously extrinsic to the deed, we must first determine if the evidence was properly admitted. As Mrs. Popwell correctly points out, extrinsic evidence of antecedent or contemporaneous oral or written agreements between a grantor and grantee is generally inadmissible to vary, change, contradict, or defeat the legal operation of a deed. Floyd v. Andress, 246 Ala. 301, 20 So. 2d 331 (1944); see also Roberts v. Monroe, 261 Ala. 569, 75 So. 2d 492 (1954). However, this Court has long held that extrinsic evidence is admissible to show that a deed was executed as the result of fraud. Roberts, supra, 261 Ala. at 576, 75 So. 2d at 498. Since this is exactly what the heirs averred, the trial court properly admitted extrinsic evidence of the representations made by Mrs. Popwell. Consequently, the only remaining issue is whether the trial court could have found that those representations were fraudulent.
Mrs. Popwell argues that the heirs, having signed the deed, are now precluded from claiming that they did not know what they were executing. While she is correct that a grantor who has the ability to read and understand a deed but fails to do so is normally bound by that deed, such is not the case where the signature was induced by fraud or misrepresentation. Ingram v. Horn, 294 Ala. 353, 317 So. 2d 485 (1975).
As this Court recently stated, "Alabama has long recognized that a deed obtained by fraud will be set aside." Holland v. Hoffman, 443 So. 2d 931 (Ala.1983). A grantor seeking to set aside a deed on the grounds of fraud must, however, aver the facts relied upon, Doswell v. Hughen, 266 Ala. 87, 94 So. 2d 377 (1957), and prove the fraud clearly and satisfactorily. Russell v. Russell, 361 So. 2d 1053 (Ala.1978).
To constitute fraud upon which cancellation of a deed can be based, a false representation must be a representation of existing fact and not a promise of something to be done in the future, unless it is shown that at the time a promise of future performance was made it was made with the intention of deceiving and with no intention of fulfilling that promise. Cross v. Maxwell, 263 Ala. 509, 83 So. 2d 211 (1955). *387 Stated another way, while the mere failure to perform a promise does not authorize rescission of a deed, a false representation of existing fact or a material promise to do something in the future, which is made by the promissor with no intention to perform, will authorize rescission. The essence of the fraud in the latter situation is not the breach of a promise but the fraudulent intent not to perform. Doswell, supra, 266 Ala. at 89, 94 So. 2d at 379.
As previously stated, the trial court in this case made no specific findings of fact. However, it is firmly established that in the absence of such findings by the trial court this Court will assume that the trial court found those facts necessary to support its judgment, unless those findings would be clearly erroneous and against the great weight of the evidence. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Moore, 435 So. 2d 712 (Ala. 1983). It is also firmly established that under the ore tenus standard of review the findings of the trial court are favored with a presumption of correctness and will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless those findings are plainly and palpably erroneous or manifestly unjust. Chaffin v. Hall, 439 So. 2d 67 (Ala.1983), Holland, supra, at 935.
There was competent testimony presented at trial indicating that Mrs. Popwell told some heirs that the instrument they were about to execute was a power of attorney, and there is evidence that she told some heirs that the property would subsequently be redivided.
Considering this testimony, along with the previously stated presumptions, we find that there was sufficient evidence from which the trial court could have determined that Mrs. Popwell's statements as to the nature of the instruments were false representations of existing fact and that her promises to reconvey were promises of future performance made with no intention to perform. Therefore, we cannot say that the trial court was in error in ordering rescission of the deed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | February 8, 1985 |
1f06cd4a-e195-43a3-af47-a1a1a646580c | Moore v. Johnson | 471 So. 2d 1250 | N/A | Alabama | Alabama Supreme Court | 471 So. 2d 1250 (1985)
Thomas Young MOORE
v.
Roosevelt JOHNSON, et al.
83-579.
Supreme Court of Alabama.
May 3, 1985.
*1251 William E. Cassady, Camden, for appellant.
Andrew M. Cromer, Jr., Camden, for appellees.
ADAMS, Justice.
This is an appeal from a judgment awarding certain property to the defendant, Roosevelt Johnson, by virtue of his adverse possession of the property. The action was filed on November 13, 1981, by Thomas Young Moore to settle a boundary line dispute between Moore and Johnson. The two co-terminous landowners each claimed ownership of the same piece of property, and after the trial court awarded the land to Johnson, Moore appealed.
The facts of this case, heard by the trial court sitting without a jury, are as follows:
The property which is the subject of this action is located in Wilcox County, Alabama, and is described as "the Southeast quarter of Section 21, Township 12 North, Range 10 East, except for 14 acres in the Northwest corner." It is undisputed that defendant Roosevelt Johnson owns the east half of the southeast quarter of this property. The dispute arises over approximately 58 acres of land in the west half of the southeast quarter of Section 21. (See Appendix A).
Moore claims to be the owner of the property as a result of a deed to the land that he received from John and Blanch Gates in 1950. The deed transferred ownership in the land known as the "Cole Place," and described approximately 400 acres of land. Included in this property is the west half of the southeast quarter of Section 21.
Johnson claims that the 58 acres of land was given to him in the will of his grandfather, Alex McConnico. McConnico obtained his interest in the property from a deed by the Coles to him in 1876. The deed described the western boundary of the land as being "the Old State Road." Herein lies the problem. Moore offered proof that this "old state road" referred to in the deed ran north to south and split the west half and the east half of the southeast quarter of Section 21. Johnson contends that it is the old state road located west of Highway 21. The land between the two alleged boundaries is the 58 acres, more or less, which both parties claim to own.
On November 23, 1983, the trial court, sitting without a jury, found, inter alia, that:
The court then entered an order stating that Johnson was entitled to that portion of the west half of the southeast quarter of Section 21 to the east of Highway 21, and that Moore had no right, title, or interest in the property. Following a denial of a motion for new trial, Moore appealed.
The sole issue for our review is whether the trial court's non-jury finding, that Johnson was entitled to the 48.69 acres of land east of Highway 21 by adverse possession was supported by the ore tenus evidence at trial. We are of the opinion that it was; therefore, the judgment of the trial court is due to be affirmed.
As we have already stated, this case was presented to the trial court sitting without a jury. In Cherokee Insurance Co. v. Frazier, 406 So. 2d 881 (Ala.1981), we discussed the standard of review in non-jury cases wherein the court heard ore tenus evidence, saying:
406 So. 2d at 883. Further, in Hayes v. Cotter, 439 So. 2d 102 (Ala.1983), we addressed the question of the application of the ore tenus rule in boundary line dispute cases:
439 So. 2d at 104.
According to the cases cited above, Moore is saddled with a heavy burden, as he must show that the trial court's judgment is not supported by credible evidence. For the reasons that follow, we are of the opinion that Moore has failed to meet this burden.
We begin our discussion by noting that not only is the trial court's judgment presumed to be correct under the ore tenus rule, but its judgment is further strengthened because the trial court was acquainted with the land in dispute. At the hearing on the motion for a new trial, the judge stated that he was familiar with the property and the area, and that he had passed by the property numerous times. We agree with the court's statement that knowledge of the particular land allowed the court to understand the testimony better than someone who was not familiar with the case.
In its findings of fact, the trial court stated that Moore had legal title to the west half of the southeast quarter of Section 21. The court further noted that John Gates, the former owner, testified that the land he conveyed to Moore did not include the property in question claimed by Johnson and that it was incorrectly included in the conveyance he gave to Moore. Also, the court found that approximately 48.69 acres of the property belonged to Johnson by virtue of his adverse possession of the property.
In Hayes v. Cotter, supra, we recounted what is necessary for a person to establish adverse possession in a boundary line case:
439 So. 2d at 104.
In this case, Johnson attempted to make out his adverse possession by tacking the adverse possession periods of previous successive adverse possessors through whom his title could be traced. This he is allowed to do. See Bussey v. Bussey, 403 So. 2d 907 (Ala.1981).
Moore also contends that Johnson did not excercise exclusive possession of *1253 the property. With regard to the nine acres of land west of Highway 21, the court must have agreed with Moore's assertion that both he and Johnson exercised possession of the land. This would mean that the element of exclusive possession of the property by Johnson was missing, and, therefore, that his claim to this tract must fail. However, regarding the 48.69 acres of land east of Highway 21, the court stated: "I feel like although [Moore] had legal title under what I consider a mistaken description in the deed, I don't feel like he's ever exercised any control whatsoever over that area east of the highway there."
The statement by the court is supported by the testimony of John Gates. Gates testified that he purchased 350 acres of land from Emma Lou Cole on April 21, 1950. He testified that "Pop" McLeod drew up the deed, and that McLeod was "famous for not drawing anything up right." Gates testified that he owned only 350 acres, that he sold Moore only 350 acres, and that Moore paid him for only 350 acres. He also stated that he never claimed any land east of Highway 21 because that land belonged to Alex McConnico. Finally, he testified that he had been telling Moore for over 30 years that the property did not include any land east of Highway 21.
Johnson offered proof that the alleged acts of possession of the 48.69 acres of land by Moore were really acts that pertained to the land west of Highway 21. Moore countered this with his own evidence that these acts were done on or about the 48.69 acres of land east of Highway 21. The trial court heard the testimony, viewed the photographic and documentary evidence, and although it is not included in the court's findings of fact, the court must have found that Moore's actions related only to the land west of Highway 21. Indeed, in the hearing on a motion for new trial, the court stated that it did not believe that Moore "ever exercised any control whatsoever" over the land east of Highway 21. We are of the opinion that such a conclusion is not clearly erroneous.
This Court was faced with a similar situation in Barnett v. Millis, 286 Ala. 681, 246 So. 2d 78 (1971). Barnett also concerned a boundary line dispute, and, during the course of the trial, the judge went and inspected the property to be able to better understand the testimony at trial. Although there is no showing in the present case that the court below inspected the property during the course of the trial, this is not necessary, because the court stated that it was already familiar with the property in dispute when the action was commenced.
In Barnett the court established a boundary line which was totally different from those lines asserted by the parties. The court below chose to invoke the same remedy, and after reviewing the evidence, we cannot say that the court's conclusion was unsupported by credible evidence or was clearly erroneous. The court must have found that, although Johnson claimed that he owned all 58 acres of the disputed property by virtue of adverse possession of it, there was actually dual possession of the nine or so acres west of Highway 21, and thus that Johnson's adverse possession claim as to the nine acres had to fail due to a lack of exclusive possession for the required time period. The court found that Johnson did adversely possess the 48.69 acres of land east of Highway 21, and we are of the opinion that there was sufficient evidence to support such a finding.
Considering the evidence presented at trial, the court's expertise, and the strong presumption in favor of the court's findings, we are constrained to uphold the court's resolution of this case. Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur.
*1254 | May 3, 1985 |
3da0f5be-85a9-42c4-848d-665371170133 | United States Fire Insurance Co. v. McCormick | 243 So. 2d 367 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 367 (1970)
UNITED STATES FIRE INSURANCE COMPANY, a Corporation
v.
J. I. McCORMICK et al.
6 Div. 481.
Supreme Court of Alabama.
December 23, 1970.
*368 T. Eugene Burts, Florence, for appellant.
A. W. Jones, Victor H. Smith, Birmingham, Howell T. Heflin, Charles D. Rosser, guardians ad litem, Tuscumbia, for appellees.
MERRILL, Justice.
This appeal in a declaratory judgment proceeding is from a decree requiring appellant insurer to defend certain suits filed against named or additional insureds in a comprehensive general liability policy.
This case presents a question of first impression in Alabama. The first question may be stated thusly:
Can an injured employee, or his dependents in the case of death, proceed under Tit. 26, § 312, Code 1940, as amended, against third parties who are not his employer, when such third parties are co-employees and executive officers or management officials of the employer corporation?
The second question posed is:
Where a comprehensive general liability policy contains an exclusion as to claims for injuries made by an employee of the insured, and where said policy provides coverage for individuals as "any executive officer, * * * while acting within the scope of his duties as such," what is the effect of the exclusion? *369 No material factual controversy appears and only questions of law are presented for decision.
Mac's Contracting Company, Inc., a corporation, (hereinafter referred to as Mac's) was, on June 26, 1962, the contractor engaged in laying sewer pipe in the City of Muscle Shoals, Alabama. At that time, J. I. McCormick was the president of the corporation; John Baird was vice-president and acted as general superintendent on the job at Muscle Shoals, and Arthur Bodiford was the sewer foreman on that job, being in charge of some eight to ten men. Mac's and the three aforenamed individuals were respondents-cross complainants in the court below, appellees on this appeal.
Two employees of Mac's, L. Carl Campbell and Clayton Lee Terry, were also working on the Muscle Shoals job on June 26th. Both men were working in a deep trench when a cave-in occurred, causing injury to Campbell and the death of Terry. Both were covered under the Workmen's Compensation Act of the State of Alabama. Campbell and the personal representatives of the deceased, Terry, were respondents in the court below, appellees on this appeal.
After applying for and receiving workmen's compensation benefits, Campbell brought suit in the Colbert County Circuit Court (Case No. 12,614) against McCormick, Baird and Bodiford, individually, seeking damages in the amount of $50,000.00 for injuries arising out of the accident of June 26th. While receiving workmen's compensation benefits, the widow and minor heirs of Terry brought suit in said court (Case No. 12,955) against McCormick, Baird and Bodiford, individually, seeking damages in the amount of $100,000.00 for the wrongful death of Terry. Between the filing of these two suits, Campbell filed suit in the same court (Case No. 12,950) naming Mac's Contracting Company a defendant, seeking a final determination and adjudication of his claim for workmen's compensation benefits.
The original bill seeking a declaratory judgment arises out of a demand by Mac's, by letter through its attorneys, that a defense and coverage be afforded McCormick, Baird and Bodiford under Workmen's Compensation-Employer's Liability Policy No. WC 23 48 94, in the suit instituted against them, individually, by Campbell. Demand was subsequently made for the same defense and coverage in the suit instituted by the widow and minor heirs of Terry.
Demurrers filed to the original bill of complaint were overruled. All respondents then filed answers. The bill of complaint was amended and an amended answer was filed thereto by Mac's and J. I. McCormick, et al. The answer of Campbell and Terry, et al. to the original bill of complaint was refiled to the bill of complaint, as amended.
A cross bill filed on behalf of McCormick, Baird and Bodiford adopts the material allegations of the bill of complaint, as amended, and alleges that a separate policy, Comprehensive General-Automobile Liability Policy No. CAG 18 09 67, also issued by United States Fire Insurance Company, affords coverage and defense to the respective individuals in the event Workmen's Compensation-Employer's Liability Policy No. 23 48 94 does not afford such coverage and defense. Both policies list Mac's Contracting Company and J. I. McCormick as named insureds.
The decree of the lower court, in pertinent part, is as follows:
Also pertinent to our consideration on this appeal are the following excerpts from Comprehensive General-Automobile Liability Policy No. CAG 18 09 67:
"COMPREHENSIVE GENERAL-AUTOMOBILE LIABILITY POLICY
"DECLARATIONS POLICY NUMBER CAG 18 09 67
"Name of Insured Mac's Contracting Co., Inc. and J. I. McCormick.
"The named insured is Corporation
"I Coverage ABodily Injury LiabilityAutomobile. To pay * * *
"This policy does not apply:
Prior to 1947, Tit. 26, § 311, Code 1940, stated in effect that the injured employee or his representative could "proceed either at law against such (third) party to recover damages, or against the employer for compensation under this article, but not against both." Section 311 was repealed in 1947. Several cases decided prior to that time held that the employee could not sue the employer and the third party and that he had to elect between one or the other. See Western Union Tel. Co. v. George, 239 Ala. 80, 194 So. 183. Section 312, also amended in 1947, provides that where the employee's injury or death was caused by "any party other than the employer," that the employee or his representative "may proceed against the employer to recover compensation under article 2 of this chapter, or may agree with the employer upon the compensation payable under article 2 of this chapter and at the same time may bring an action against *371 such other party to recover damages for such injury or death, * * *."
The parties agree in brief that there is no Alabama authority which construes the words "any party other than the employer," in § 312, as amended.[1] We note here that the references to Alabama as being among the states which exclude co-employees from the category of "third persons" under the statute in Larson's Workmen's Compensation Law, Vol. 2, § 72.20, note 23; Frantz v. McBee Co., Fla., 77 So. 2d 796, and Allman v. Hanley, 5th Cir., 302 F.2d 559, are not apt since Tit. 26, § 311 was repealed and § 312 was amended in 1947.
The general rule is where there is no expressed legislative mandate to the contrary, that a co-employee or fellow servant is a third party tortfeasor within the meaning of the Workmen's Compensation Act. Frantz v. McBee Co., Fla., 77 So. 2d 796; 58 Amjur., Workmen's Compensation, § 61, p. 617, Annotation 21 A.L.R.3d 850; § 3; 101 C.J.S. Workmen's Compensation § 985e, p. 481; Larson's Workmen's Compensation Law, Vol. 2, §§ 72 and 72.10, p. 174.
The statutory definition of "employer" in Iowa is practically the same as in our statute, and in Price v. King, 259 Iowa 921, 146 N.W.2d 328, the court said:
In Queen City Furniture Co. v. Hinds, 274 Ala. 584, 150 So. 2d 756, we held that the president and principal stockholder of a corporation was covered by workmen's compensation insurance. It would hardly be rational to hold that an officer of a corporation was an employee in that case, but hold him to be an employer when an employee sues him for negligence.
We hold that the words in Tit. 26, § 312, as amended, "any party other than the employer," permit co-employees to be treated as third parties. This disposes of assignments of error 4 and 10.
Assignments of error 7, 8 and 9 complain of error in the lower court's ruling that appellant owes McCormick, Baird and Bodiford, either or all of them, a defense, coverage, or a defense and coverage under Policy No. CAG 18 09 67. Said policy lists as named insureds Mac's Contracting Company, Inc. and J. I. McCormick. Appellant argues that it is under no duty to defend or afford coverage to McCormick, even though he is a named insured, because such protection could only be afforded to him to the extent that he, individually, was an employer. It appears to be undisputed that Campbell and Terry were employees of Mac's, and not the employees of either of the three individuals.
The term "insured" as used in coverages A and B of Policy No. CAG 18 09 67 is defined by the insurer to include any executive officer, director or stockholder of the corporation while acting within the line and scope of his duties as such. It is undisputed that McCormick, Baird and Bodiford were, on June 26, 1962, the president, vice-president and sewer foreman, respectively, of Mac's. In the amended bill of complaint, sub-paragraph F of paragraph XIII would seem to preclude any argument to the contrary:
If we should accept appellant's contention that McCormick, a named insured, was covered only to the extent that he individually was an employer, we would have a situation in which Baird and Bodiford, additional insureds under the insurer's definition of the word "insured," would enjoy a greater degree of protection under *372 the policy than would McCormick. This we refuse to accept we refuse to accept as the intention of the parties to the insurance contract, which is the polestar of all rules of construction. Smith v. Kennesaw Life & Acc. Ins. Co., 284 Ala. 12, 221 So. 2d 372. There is nothing in the insurance policy or the record before us that would indicate that, at the time McCormick purchased the insurance protection, at a substantial premium, his intention was that which is argued by appellant.
The language used in a policy of insurance is framed by the insurer and is to be construed favorably to the insured. Colonial Life & Acc. Ins. Co. v. Shotts, 267 Ala. 525, 103 So. 2d 181.
Appellant further argues that the matter of coverage for McCormick is disposed of by virtue of endorsement G 236A, wherein he, McCormick, allegedly is eliminated as a named insured with respect to the conduct of a business of which he is not the sole owner. Endorsement G 236A is as follows:
But the following endorsement also appears in the policy:
These two endorsements present doubtful or ambiguous terms which must be resolved in favor of the insured. Canal Ins. Co. v. Stidham, 281 Ala. 493, 205 So. 2d 516; Maryland Cas. Co. v. Allstate Ins. Co., 281 Ala. 671, 207 So. 2d 657. McCormick testified as follows regarding the latter endorsement:
"THE WITNESS: Yes, sir, I usually always had an endorsement.
"THE WITNESS: Yes, sir, I am pretty sure.
"THE COURT: Tell me.
We think we have demonstrated that McCormick, as a named insured, and Baird and Bodiford, as additional insureds, are entitled to defense and coverage under the policy, unless barred by exclusion (h), which we now proceed to discuss.
Appellant argues in brief that (underscoring omitted) "* * * where a public liability policy contains an exclusion as to claims for injury made by an employee of the insured, such exclusion applies as to claims made against an additional insured claiming coverage under the policy if the injured party is an employee of any person insured under such policy; and, further, that where a public liability policy contains an exclusion as to any claim for which the insured or his insurer may be held liable under workmen's compensation, such exclusion operates to exclude an additional insured as well as the named insured from coverage under the policy as to liability for injuries to an employee of the named insured."
In support of its contention, appellant cites and relies heavily on the decision of this court in Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So. 2d 920, wherein we stated the question presented for decision as follows:
In the Michigan Mutual case, supra, we refused to adopt appellant's contention that the phrase, "employee of the insured," should be construed to mean the "employee of the insured against whom suit is being brought," citing a number of cases in support of our position. However, there are distinguishing characteristics between that case and the case at bar; (1) that case involved a dispute between two insurance companies and the favorable presumption in favor of the insured in resolving ambiguities did not apply; and (2) there was no severability of interests clause in that case such as is present in the instant case. Also see American Fidelity and Casualty Co. v. St. Paul-Mercury Indemnity Co., 5th Cir., 248 F.2d 509.
This brings us to another question of first impression in this state, i. e., the effect of the severability provision in the comprehensive policy (CAG 18 09 67) which reads:
There is a decided split of authority among the jurisdictions which have considered the question. Some have construed the exclusion strictly against the insurer and held that an employee of an insured, other than the insured who seeks protection, is not within the language of such an exclusion. Others have held that if the injured party is an employee of any person who is insured under the policy, the exclusion is applicable, although he may not have been an employee of the person committing the tort. We need not cite the different cases, but they are cited and discussed in 50 A.L.R.2d 78 and Later Case Service, Vol. 5, p. 82, and cases cited therein. Also see Risjord & Austin, Who is "The Insured?", 24 U. of Kansas City L. R. 65; Risjord & Austin, Standard Family Automobile Policy, 411 Ins.L.J. 199 (1957); Breen, The New Automobile Policy, 388 Ins.L.J. 328 (1955); Thomas, The New Standard Automobile Policy, Other Provisions (Declarations *374 and Conditions), 393 Ins.L.J. 653 (1955); Risjord & Austin, Who is "The Insured" Revisited 28 Ins. Counsel J. 100 (1961); Brown and Risjord, Loading and Unloading the Conflict Between Fortuitous Adversaries, 29 Ins. Counsel J. 197 (1962).
In Curran Development Company, Inc. v. Security Insurance Company, D.Ark., 194 F. Supp. 727, the material facts are similar to those presented in the instant case. A corporation and its treasurergeneral manager, David H. Curran, instituted an action against the corporation's liability insurer for a declaratory judgment that the insurer was liable to defend an action for the death of an employee of the corporation and pay any judgment which might be rendered in the action. The insurer in that case, as does the insurer in the instant case, contended that the policy did not apply in such manner as to extend coverage to David H. Curran, by reason of exclusion (k) of the policy, which excluded, under coverage A, "* * * bodily injury to or sickness, disease or death of any employee of the Insured arising out of and in the course of his employment by the Insured; * * *." The District Court concluded, largely on the basis of the holdings in General Aviation Supply Co. v. Insurance Company of North America, E.D.Mo., 181 F. Supp. 380 (1969), and New v. General Casualty Co. of America, M.D. Tenn., 133 F. Supp. 955 (1955), that "* * * where a policy of insurance contains a severability of interest clause, the inclusion within the policy as to employees of the insured should be limited and confined to the employees of the employer who commits the tort or seeks protection." Curran Development Company, Inc. v. Security Insurance Company, D.Ark., 194 F.Supp., at 732.
A more recent case involving the construction of a severability of interests clause in an insurance policy is Shelby Mutual Insurance Co. v. Schuitema, Fla. App., 183 So. 2d 571 (1966). A policy of automobile liability insurance, similar in pertinent provisions to the one involved in the instant case, was issued to Don Wilson Lincoln-Mercury, Inc. by Shelby Mutual Insurance Company. One Poss, a salesman for the automobile dealer, showed an automobile belonging to the automobile dealer to Schuitema. The automobile was parked on the street in front of the dealership at the time. Poss sat on the passenger's side of the front seat and Schuitema sat on the driver's side. He opened the door on that side, which was then struck by a passing vehicle, causing injury to the salesman, Poss. The insurance company denied Schuitema's request that it extend a defense and coverage to him under the provisions of the insurance policy issued to Don Wilson Lincoln-Mercury, Inc.
Directing its attention specifically to the severability of interests clause contained in the policy, the Florida court stated as follows:
Applying the rule of these cases to our present facts, we express its application as follows: The insurance company (appellant) provided coverage and promised a defense to McCormick in a suit of damages for injuries sustained by a party as a result of McCormick's negligence, but the coverage does not apply if the party is an employee of McCormick. The same would apply in substituting Baird's name for McCormick's, and substituting Bodiford's name for McCormick's.
Each insured has coverage except with respect to his own employees, and the unqualified word "insured" in the employee exemption (h) means only the person claiming coverage.
The severability of interests provision requires consideration of each insured separately, independently of every other insured whether named or an additional insured. Applying this provision, the exclusion of an employee must mean that the exclusion of an employee of the insured must be limited to an employee of that particular insured who claims coverage under the policy.
We hold that McCormick, Baird and Bodiford were entitled to defense and coverage under Policy No. 18 09 67.
Assignments 1, 2 and 3 charge the trial court with error in ruling that appellant owed McCormick, Baird and Bodiford, or either of them, coverage and defense under the Employees Liability Aspect of Policy No. WC 23 48 94. In view of what we have already said, we merely add that we do not think the trial court specifically ordered appellant to take action under specific policies, but ordered a defense to the suits against McCormick, Baird and Bodiford.
These three men were sued for substantial damages in Case No. 12,614 and No. 12,955. Section II under "Insuring Agreements," Policy No. CAG 18 09 67, provides that "* * * the company shall: (a) defend any suit against the insured alleging such injury, * * * even if such suit is groundless, false or fraudulent; * * *." (Emphasis added) We think this quoted phrase, in language selected by the insurer, too clear to require judicial construction.
The same provision was in the policies considered in Bankson v. Accident & Casualty Co., 244 Ala. 371, 13 So.2d 398(3), and American Mut. Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677.
There is no merit in assignments of error 1, 2 and 3.
Assignments of error 5 and 6 are to the effect that the lower court erred in ruling by its decree that appellant owes *376 Mac's coverage and a defense under Policy No. CAG 18 09 67, issued by appellant, in the suit brought against said corporation in the Colbert County Circuit Court (Case No. 12,950). That case, brought by Campbell, names only Mac's Contracting Company as defendant. The decree of the chancellor is incorrect to the extent that it orders the insurer to provide a defense and coverage to McCormick, Baird and Bodiford in Case No. 12,950. Appellant states in brief that a defense has been interposed for Mac's in that case. The decree, therefore, must be modified, eliminating therefrom that portion directing that the insurer owes coverage and a defense to McCormick, Baird and Bodiford in Case No. 12,950, which is one of the "three" cases mentioned in the decree.
Assignment of error 12 charges that the trial court erred in overruling the motion for rehearing.
A decree denying an application for a rehearing in equity, which does not modify the original decree, as here, is not subject to review on assignments of error from the final decree. Whiteport v. Whiteport, 283 Ala. 704, 220 So. 2d 891; Skipper v. Skipper, 280 Ala. 506, 195 So. 2d 797.
Counsel for the minor appellees also ask that this court fix the fee for representation as guardian ad litem on this appeal. In the lower court, counsel was awarded a fee of $1,250.00. Under the circumstances of this case, we feel an additional fee of $600.00 for representation as guardian ad litem on this appeal is reasonable, said fee to be assessed as part of the costs. It is so ordered. Tit. 7, § 180, Code 1940; Commercial Standard Ins. Co. v. New Amsterdam Cas. Co., 272 Ala. 357, 131 So. 2d 182.
Subject to the modification already noted, the decree is affirmed.
This case was originally assigned to another member of the court, but was recently reassigned to the author of this opinion.
Modified and affirmed.
LAWSON, HARWOOD, MADDOX and McCALL, JJ., concur.
[1] A similar question was considered in Beasley v. MacDonald Engineering Co., 6 Div. 709 (S.Ct. Ms.), December 17, 1970. | December 23, 1970 |
e733e0b3-b73a-4827-ab75-fd7dc5df67eb | Smith v. Style Advertising, Inc. | 470 So. 2d 1194 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1194 (1985)
Gary E. SMITH and Valley View Associates, Ltd.
v.
STYLE ADVERTISING, INC., a corporation.
83-769.
Supreme Court of Alabama.
May 3, 1985.
Ronald L. Stichweh and David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellants.
*1195 Michael L. Edwards of Berkowitz, Lefkovits, Isom, Edwards & Kushner, Birmingham, for appellee.
ADAMS, Justice.
Gary Smith and Valley View Associates, Ltd., a limited partnership of which Smith is a general partner, appeal a judgment holding them liable to Style Advertising, Inc., for costs incurred in advertising the sale of condominiums. We affirm the judgment of the trial court.
The issue in this case is whether Gary Smith and Valley View Associates, Ltd., are liable for the advertising services performed for the sale of condominiums initially owned by the partnership, in addition to a corporation incorporated by Gary Smith which later owned the condominiums.
The case was tried ore tenus, and the trial court found the facts to be as follows:
Valley View Associates, Ltd., is a limited partnership formed in November 1977 with appellant Smith serving as a general partner. The limited partnership purchased the Valley View Apartments in Birmingham on the date it was formed.
At some point in early 1980, Valley View Associates, Ltd., made the decision to convert some of the units of the Valley View Apartments into condominiums for sale to the public. A meeting was held between Albert E. Oelschlaeger, the president of Style Advertising, and Robert J. McClure, an employee of Valley View Associates, in the office of Centennial Realty Company, a sole proprietorship owned by Gary Smith. The purpose of the meeting was the preparation of advertising and marketing plans for the sale of the condominiums.
At this meeting, McClure told Oelschlaeger that Smith would have to approve any expenditures for advertising. Later, McClure told Oelschlaeger that Smith would not agree to a long term advertising commitment, but would consider monthly proposals submitted to him by Style Advertising. Style proceeded with the advertising campaign on this monthly basis.
The billing statements sent by Style were addressed to "Valley View Condominiums" and delivered to McClure. The first two bills were paid by checks drawn on the account of Centennial Realty Company, the aforementioned business owned by Gary Smith. Style received no further payments in 1980.
Centennial Housing, Inc., was incorporated in October 1980. Gary Smith was one of the incorporators. In November 1980, Valley View Associates conveyed a portion of the Valley View Apartments to Centennial Housing, Inc., so the corporation could sell the apartments as condominiums. Prior to this incorporation, no units had been sold, but purchase agreements had been negotiated with members of the public, and signed in the name of Centennial Realty Company as seller. After the incorporation, the purchase agreements were assigned to Centennial Housing, Inc., which closed the sales and which was listed as seller on the sales contracts. By the time of the incorporation of Centennial Housing, Inc., and the conveyance of the apartments to it, however, Style Advertising had already completed most of its services in regard to the sale of the condominiums.
In early 1981, Oelschlaeger made attempts to collect the balance owed by Gary Smith for the advertising services performed. In order to keep Style from filing a lawsuit, on March 6, 1981, Smith, as president of Centennial Housing, Inc., offered to pay an immediate finance charge to Style, and to pay the principal due by April 30, 1981. Style agreed to this arrangement. Smith made no further payments, however, and Style filed suit in July 1981.
After an ore tenus hearing, the trial court concluded that Valley View Associates, Ltd., and Gary Smith, as general partner, were liable to Style Advertising for the amount due. The court found dispositive the fact that Valley View Associates, Ltd., was the owner of the apartments during most of the time that Style was performing advertising services. Also important was the fact that the purchase agreements *1196 which were executed while Valley View Associates, Ltd., owned the apartments, listed Gary Smith's business, Centennial Realty Company, as the seller.
We now discuss why the trial court was correct in its conclusion that Valley View Associates, Ltd., and Gary Smith as its general partner, were liable along with Centennial Housing, Inc., for the costs of advertising done by Style.
Appellants recognize that where the trial court hears evidence ore tenus, its judgment is presumed correct unless the court took an erroneous view of the law as applied to the facts, Waters v. Merritt, 277 Ala. 346, 170 So. 2d 492 (1964), or unless the facts found are palpably wrong or manifestly unjust. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So. 2d 847 (1973). Appellants argue that the trial court incorrectly applied prior precedent to the facts of this case, thus taking an erroneous view of the law, and thus rendering void the presumption of correctness given to the lower court's judgment. This argument fails.
The trial court correctly relied on Birmingham News Co. v. McConnell, 225 Ala. 30, 141 So. 678 (1932), and Harris v. Stephens Wholesale Building Supply Co., 54 Ala.App. 405, 309 So. 2d 115 (1975), in support of its decision. In McConnell, this Court reversed the circuit court's grant of a new trial and reinstated a jury verdict in favor of the Birmingham News Company, which had sued to collect the cost of advertising done for the McConnell Auto Exchange, a partnership which later incorporated. This Court held that the partners were liable for the advertising services performed under the contract, even though the form of business was subsequently changed from a partnership to a corporation.
In Harris, a judgment was affirmed which held Norman Harris liable for an account he opened in the name of "Bessemer Building & Improvement," a business not incorporated until over a month after the account was opened. The court stated the issue as whether the creditor dealt with Harris as an individual or as a representative of a corporation. Harris was held liable personally because the evidence supported the conclusion that the creditor thought he was dealing with an individual, had no knowledge that the business had been incorporated, and was never informed of this incorporation by Harris. The judgment went against Harris, notwithstanding the fact that the first payment on the account was made with a Bessemer Building Improvement, Inc., check, and the fact that there was no evidence that any purchases were made by Harris before the incorporation.
The facts in the present case are even more compelling than in McConnell and Harris. Style Advertising began performing advertising services for Valley View Condominiums in early 1980. Centennial Housing, Inc., was not incorporated until late 1980, after Style had substantially completed its services. There is no evidence to indicate that Style was told a corporation was to be formed or told it was to look to a corporation for payment. Two payments were made to Style on Centennial Realty Company checks, not Centennial Housing, Inc., checks. Style addressed its statements to Valley View Condominiums and was never told to do differently. Further, Style was informed by McClure, an employee of Gary Smith, that Smith had to approve any advertising proposals. Considering the evidence, it is neither palpably wrong nor manifestly unjust to conclude that Gary Smith and Valley View Associates, Ltd., are liable for the advertising. This conclusion is further supported by the fact that the partnership owned the apartments during the time when Style performed most of its work.
Appellants contend that the letters exchanged between Gary Smith and Style Advertising in March 1981 constitute both the only "meeting of the minds" between the parties regarding the advertising contract and the only reduction of the advertising agreement to writing. In these letters, *1197 Gary Smith, as president of Centennial Housing, Inc., offered to pay a finance charge to Style immediately, and the principal by the end of April. Oelschlaeger's letter of March 9, 1981, accepted this offer. Appellants state that since Smith was clearly acting as an agent of Centennial Housing, Inc., in negotiating this agreement, and since the letters represent the only written contract and the only "meeting of the minds" between the parties involved, then Centennial Housing, Inc., is the only party liable for the principal.
There is no requirement, however, that the contract between Style and Valley View Associates, Ltd., be written to be binding. Also, the letters exchanged in March 1981, do not represent the only "meeting of the minds" on the advertising agreement. In early 1980, Oelschlaeger, representing Style, orally agreed with McClure, an agent of Gary Smith, to provide advertising services. Thereafter, proposals were submitted and approved by Smith on a monthly basis. Thus, there was a meeting of the minds long before the March 1981 letters, and a binding contract was in effect.
The trial court held that the letters of March 1981 constituted an agreement by Centennial Housing, Inc., to become additionally liable on the obligation of Valley View Associates, Ltd., in exchange for Style's agreement to forbear bringing suit. We agree. These letters, however, do not release the original obligor, Valley View Associates, Ltd., from its liability. Valley View Associates, Ltd., and its general partner, Gary Smith, are liable to Style Advertising for the advertising services performed in regard to the sale of Valley View Condominiums.
For the above-stated reasons, the judgment of the circuit court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | May 3, 1985 |
253e39c1-4099-435d-9f34-b5c89b4f19dc | Ex Parte Harbor | 465 So. 2d 460 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 460 (1985)
Ex Parte Charles Michael HARBOR.
(Re: Charles Michael Harbor
v.
State).
83-1147.
Supreme Court of Alabama.
February 8, 1985.
George W. Andrews III, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for respondent.
PER CURIAM.
The writ is quashed as improvidently granted. We cannot agree with the petitioner's argument that the Supreme Court of the United States in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), required appellate courts to test all sentences against the proscriptions of the cruel and unusual punishment clause of the Eighth Amendment to the Constitution.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
TORBERT, C.J., and MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
FAULKNER, JONES, EMBRY and BEATTY, JJ., dissent.
FAULKNER, Justice (dissenting):
Charles Michael Harbor was convicted of illegal possession of drugs in violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., specifically § 20-2-70, Code of Alabama 1975, and was sentenced to fifteen years' imprisonment in the state penitentiary.
The facts are fully set forth in the opinion of the Court of Criminal Appeals, 465 So. 2d 455 (Ala.Cr.App.1984). Stated briefly, Police Officer Danny Ballard was called to an accident scene on the night of March 19, 1982. When he arrived he found a wrecked orange Chevrolet Corvette automobile, which he recognized as belonging to Harbor. During the investigation Officer Ballard looked inside the car and saw a plastic bag containing pills, which he believed to be contraband. The officer took *461 the contraband to Hamilton police headquarters and subsequently had it sent to the state lab. The toxicology report on the 27 pills found in the bag indicated they contained dextropropoxythene, a controlled substance, also known as Darvon.
Harbor was convicted in the circuit court of Marion County for possession of a controlled substance. At his sentencing hearing, Harbor was sentenced to fifteen years' imprisonment. Harbor raised several issues on appeal. The Court of Criminal Appeals affirmed his conviction, but refused to review his sentence, finding that it had "no jurisdiction to review sentences within statutorily prescribed limits."
Initially, I note that I agree with the Court of Criminal Appeals as to its determination that Harbor's conviction is due to be affirmed. We granted certiorari to consider the issue of whether the petitioner's punishment was so disproportionate in light of the circumstances of this case as to constitute a violation of his Eighth Amendment right against cruel and unusual punishment.
The general rule in Alabama is that the appellate court has no jurisdiction to review a sentence when the punishment imposed is within the limits defined by the punishing statute. Brown v. State, 392 So. 2d 1248, 1265 (Ala.Crim.App.1980), and cases cited therein; see also, Wallace v. State, 408 So. 2d 171 (Ala.Crim.App.1981), cert. denied, 408 So. 2d 171 (Ala.1982); Moore v. State, 54 Ala.App. 463, 309 So. 2d 500 (1975).
The appellate courts of this state, however, are not prohibited from reviewing a sentence, which, while within the statutorily prescribed limitation, is so disproportionate to the offense charged that it constitutes a violation of a defendant's Eighth Amendment rights.
The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), considered the life-without-parole sentence imposed upon a defendant convicted of uttering a "no account" check for $100.00, his seventh nonviolent felony. The Supreme Court held that this sentence was significantly disproportionate to the crime, and was therefore in violation of the Eighth Amendment.
While the Supreme Court recognized that "[r]eviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals," it nevertheless found that, "as a matter of principle a criminal sentence must be proportionate to the crime for which the defendant was convicted." Solem, supra, 463 U.S. at ____, 103 S. Ct. at 3009. The Supreme Court stated that in making the determination whether a sentence is within constitutional limits
Id., 463 U.S. at ___, 103 S. Ct. at 3011.
In my view, incarceration of fifteen years for a first time felony offender, while being within the limits set by the legislature, rests precariously on the threshold of cruel and unusual punishment. The potential excessiveness of this punishment mandates a review pursuant to the Eighth Amendment. Since the court below did not address this issue, I would direct the Court of Criminal Appeals to consider this case in light of Solem.
JONES, EMBRY and BEATTY, JJ., concur. | February 8, 1985 |
3dad08d8-44ff-401c-848d-96e909253c44 | Meeks v. State Farm Mutual Automobile Ins. Co. | 243 So. 2d 27 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 27 (1970)
Alfred Lee MEEKS
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
6 Div. 812.
Supreme Court of Alabama.
December 23, 1970.
Rehearing Denied January 28, 1971.
John W. Cooper, Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
LAWSON, Justice.
The submission was on the motion to dismiss the appeal and on the merits.
The motion to dismiss the appeal is on two grounds, but we need consider only the first, which reads:
An appeal must be taken within the time and manner indicated by statute, and the date from which the time for appeal may be reckoned (where motion for new trial is duly made) is the date of the due and final rendition of judgment on such seasonable motion for a new trial.Sadler v. Sessions, 261 Ala. 323, 74 So. 2d 425; Richards v. Williams, 231 Ala. 450, 165 So. 820; Local 204 of Textile Workers Union of America v. Richardson, 245 Ala. 37, 15 So. 2d 578.
Here the latest appealable judgment of the circuit court was on October 6, 1969, by which the plaintiff's motion for new trial was overruled.§ 764, Title 7, Code 1940, as amended; Sadler v. Sessions, supra.
The appeal should have been perfected within six months from October 6, 1969. § 788, Title 7, Code 1940; Sadler v. Sessions, supra.
Appellant in his reply brief concedes that his appeal was taken one day late, but seeks to avoid dismissal of his appeal *28 on the ground that counsel for appellee wrote counsel for appellant that the trial judge overruled the motion for new trial on October 7, 1969; that in response to that letter counsel for appellant marked his calendar so as to indicate that April 7, 1970, was the last day on which the appeal could be effected; that counsel for appellee had no other notice of the date on which the judgment of the motion for new trial was entered.
Counsel for appellant does not claim that counsel for appellee intended to mislead him, but insists that the mistake innocently made by counsel for appellee should operate to toll the running of the statutory period for the taking of the appeal.
We cannot agree. We need cite only a few of the many cases which hold in effect that the time prescribed by statute for taking an appeal is jurisdictional and an appeal not timely taken will be dismissed either on motion of appellee or ex mero motu.Gray v. State, ex rel. Attorney General, 279 Ala. 333, 185 So. 2d 125; Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 636, 144 So. 803, 806 on rehearing; Burgin v. Sugg, 210 Ala. 142, 97 So. 216; Walden v. Leach, 201 Ala. 475, 78 So. 381; Williams v. Knight, 233 Ala. 42, 169 So. 871, Irwin v. Weil, 228 Ala. 489, 153 So. 746.
There is no distinction between being one day late and being "too late."Nettles v. Nettles, 283 Ala. 457, 218 So. 2d 269; Denson v. State, 43 Ala.App. 243, 187 So. 2d 574.
It is the duty of counsel for appellants to see that appeals are taken timely and that records pertaining to appeals are timely filed.Seals v. State, 282 Ala. 586, 213 So. 2d 645; Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 81 So. 2d 674; State for Use of Russell County v. Fourth Nat. Bank of Columbus, Ga., 270 Ala. 135, 117 So. 2d 145.
Appellant insists that we follow the dissenting opinion of Curtis, J., in Hanley v. Hanley, 23 Cal. 2d 120, 142 P.2d 423, 149 A.L.R. 1250, 1261-1267. We think it sufficient to say that the views expressed in that opinion are not in accord with the law of this state as announced by our appellate courts. On the other hand, we entertain the view that the language hereafter quoted from the court's opinion in Hanley v. Hanley, supra, is in accord with the holding of this court, as well as that of most of the appellate courts of this country:
We feel constrained to hold that the motion to dismiss is well taken and must be granted. It is so ordered.
Appeal dismissed.
MERRILL, HARWOOD, BLOODWORTH and McCALL, JJ., concur. | December 23, 1970 |
b7a41a05-ed45-43a6-9b3c-d21c46353107 | Lee v. United Federal Sav. & Loan Ass'n | 466 So. 2d 131 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 131 (1985)
Milton F. LEE and Suzannah S. Lee
v.
UNITED FEDERAL SAVINGS & LOAN ASSOCIATION.
Milton F. LEE and Suzannah S. Lee
v.
Elizabeth L. STEPHENS a/k/a Genny Loftin and Jeff Loftin d/b/a Loftin Realty Company and Loftin Gallery of Homes.
83-746, 83-915.
Supreme Court of Alabama.
February 22, 1985.
*132 John E. Byrd, Dothan, for appellants.
Gary C. Sherrer of Buntin & Cobb, Dothan, for appellee United Federal Sav. & Loan Ass'n.
Huey D. McInish and William C. Carn, III, Lee & McInish, Dothan, for appellees Jeff Loftin, d/b/a Loftin Realty Co. and Loftin Gallery of Homes, and Genny Loftin.
BEATTY, Justice.
Appeals by Milton F. Lee and Suzannah S. Lee, plaintiffs, from summary judgments entered against them in their action based upon fraud and deceit in the sale of a house. We affirm.
Genny Loftin, the owner of the house in question, had listed the house with Loftin Realty Company, which was owned by her father, Jeff Loftin. Loftin Realty Company in turn listed the house with Multiple Listing Service, describing the condition of the house as "excellent." Sometime in late March 1979 the plaintiffs, as prospective purchasers, were shown the house for sale by Carol Zoglmann, a realtor in Dothan employed by Morrow Realtors. Plaintiffs inspected the inside and outside of the house. They observed a "settlement crack" on the outside and also some missing sheetrock in a hallway closet. Milton Lee found a patched-over piece of wallboard in a bathroom and a mortar joint crack in a hall closet where the sheetrock had been cut away.
With the assistance of Ms. Zoglmann, Lee applied to United Federal Savings and Loan Association (United Federal), which already owned a first mortgage, for a second mortgage. Mr. Billy Lane of United Federal telephoned Ms. Zoglmann several days later and asked if she was aware of settling cracks in the home. When this information was relayed to Mr. Lee, he replied that he would make an inspection before closing.
Mr. Lee made a second examination of the house on the day of closing and found *133 some roof shingles which he considered objectionable. Lee obtained a reduction of $500 on the price of the house on account of this roof problem. Thereupon, Mr. and Mrs. Lee executed the following statement:
Shortly thereafter, the Lees purchased the house, closed the transfer of the first mortgage, and secured the second mortgage money from United Federal. The Lees then moved into the house.
Several months later, in March 1981, the Lees learned of other problems in the house and went to United Federal concerning them. Mr. Lee was referred to the firm of Wright and Rose for an inspection. That firm reported to Lee that the foundation was cracked across the house, the upstairs was separated from the downstairs, the outside trim had separated from the brickwork, the bath and shower had separated from the wall, and other problems.
Ultimately, the Lees brought this action based upon fraud. Count One alleged a cause of action for fraudulent misrepresentation and deceit against United Federal, Elizabeth L. Stephens a/k/a Genny Loftin, Jeff Loftin, and Loftin Gallery of Homes[1] in the sale of the house. Count Two alleged a cause of action in fraud and fraud by concealment in the sale.
The defendants responded with pre-trial motions and answers. In due course, the defendants filed motions for summary judgment based upon the pleadings, an affidavit of Carol Zoglmann, the Lees' statement (quoted above), and the depositions of George Talley, Charles Williams, Billy Lane, Charles Northcutt, Genny Loftin, Jeff Loftin, Suzannah S. Lee, and Milton F. Lee. Plaintiffs opposed the motions with, essentially, the same materials. After hearings, the trial court granted the defendants' motions for summary judgment. The plaintiffs' motions for reconsideration were denied and these appeals followed.
The first question is whether the trial court correctly granted summary judgment in favor of United Federal on the claim of fraudulent misrepresentations. Plaintiffs' allegations were that United Federal misrepresented the condition of the house, representing that it was in excellent condition and not structurally unsound.
In Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981), this Court stated that a party making a claim for misrepresentation must establish (1) a false representation (2) concerning a material existing fact (3) relied upon by the plaintiff, (4) who was damaged as a proximate result.
In the material before the trial court, there was no evidence of any misrepresentation of a material fact which induced the plaintiffs to purchase the house. Suzannah Lee never talked with anyone at United Federal; Milton Lee deposed that he had never talked to anyone at United Federal except Billy Lane and Joyce Bedsole, employees of United Federal; neither of them made any representations to him concerning the house, and he did not rely on anything those persons said in his purchase of the home. There having been no evidence of either a misrepresentation by United Federal or of reliance by the plaintiffs, there was no question of fact on the issue of misrepresentation and, as a matter of law, plaintiffs could not recover thereon.
The next question is whether or not the trial court erred in granting summary judgment to United Federal on the issue of fraudulent concealment, i.e. suppression of material facts.
Code of 1975, § 6-5-102, states:
Plaintiffs have presented a number of circumstances which indicate knowledge of deficiencies in the house on the part of United Federal: a prior lawsuit, apparently a divorce action, which resulted in a former owner's indebtedness to United Federal being cancelled and United Federal's obtaining a deed to the house; knowledge of these facts and of defects then existing on the part of Charles Williams and Billy Lane, employees of United Federal; the fact that Mr. Lee was refused homeowner's insurance coverage by United Insurance, whose office is in the United Federal building; the fact that Billy Lane, at the time of the instant closing, asked Mr. Lee if he was aware that the house had some problems, without disclosing those problems; the fact that George Talley, a United Federal agent, in a discussion with Betty Salter, a Farm Bureau agent, stated that possibly he could have told Salter that the house should never have been mortgaged; the fact that George Talley had knowledge of defects in the house prior to the time the Lees purchased it; and the fact that Charles Williams and others had inspected the house for United Federal when some former owners, the Sloanes, had obtained a loan on it, and knew that the Sloanes were involved in a lawsuit concerning the condition of the house.
All of these circumstances, according to plaintiffs, created a confidential relationship, or special circumstances between the parties, under which the law imposed a duty upon United Federal to disclose all material information it possessed about the condition of the house.
Nevertheless, the plaintiffs presented no evidence that United Federal was ever requested to furnish any information to them, or that United Federal actively concealed any knowledge from them. Under the facts presented, there is an absence of any inference that United Federal induced the Lees to purchase the house or that the Lees purchased it as a result of some nondisclosure.
Moreover, the mere lending of money on a house by a financial institution, albeit one with knowledge of deficiencies in the house, does not create a confidential relationship, or other circumstances imposing a duty to disclose information at the lender's disposal. Under the facts before the trial court, there was no evidence of any such duty. As was stated in Chapman v. Rivers Construction Company, 284 Ala. 633, 227 So. 2d 403 (1969), in connection with the suppression statute:
We decline to recognize any such duty between United Federal and the Lees under the facts presented, which indicate to us an arm's length transaction. Absent a confidential relationship, "no duty to disclose exists when information is not requested and ... mere silence is then not a fraud." Collier v. Brown, 285 Ala. 40, 44, 228 So. 2d 800, 802 (1969). See also Cooper & Company v. Bryant, 440 So. 2d 1016 (Ala.1983).
Furthermore, there is no evidence of deceit, as defined by § 6-5-104, on the part of United Federal, i.e., no suggestion of an untrue fact, no assertion of an untrue fact, no suppression of a true fact, and no promise made without an intention to perform.
*135 We conclude, therefore, that the trial court did not err in granting summary judgment for United Federal on the theory of concealment.
The next question is whether the trial court erred in granting summary judgment in favor of Genny Loftin and Jeff Loftin on the misrepresentation and concealment counts.
From the facts before the trial court, it appears that the only "statement" alleged by plaintiffs to have been false is the Multiple Listing Service notation characterizing the house as being in "excellent" condition. The facts, however, are devoid of suggestion that this description was anything but a seller's opinion, or advertising "puff." A similar situation was presented in Harrell v. Dodson, 398 So. 2d 272 (Ala.1981), where there was a multiple listing book notation indicating the condition of a house as "exc.," allegedly meaning excellent. We observed:
Likewise, there was no evidence presented in this case that the listing in question was presented to either of the Lees as a representation or even called to their attention. To the contrary, both plaintiffs concede that they never spoke to Jeff Loftin regarding their purchase. Genny Loftin was eating lunch at the house on the occasion of the Lees' first inspection. Her connection with the Lees was described by Mrs. Lee's testimony on deposition:
Genny Loftin, the owner, testified that she herself typed the description that went into the multiple listing statement, and that in her opinion the house was in excellent condition. Nothing in the evidence countered the fact that the description in the listing was anything more than the opinion of the owner.
Plaintiffs concede that there were no other representations made to them by either Genny Loftin or Jeff Loftin. Accordingly, summary judgment was properly granted in favor of these defendants.
Was there a scintilla of evidence that these same defendants concealed the defects in the house from the Lees? Under such an allegation, this Court has stated in Harrell v. Dodson, supra, at 276:
Genny Loftin testified that she knew nothing about the defects in the house complained of by the plaintiffs, and Milton Lee himself deposed that he did not know what *136 Genny Loftin knew. Jeff Loftin testified that he did not know of any of the defects. Not only was nothing offered in opposition to this evidence, but the plaintiffs themselves testified that the defects about which they complained were not evident to them on the occasions of their own inspections. In fact, it was after plaintiffs had lived in the house for about 15 months that they became aware of the deficiencies, and only then after an engineer had examined the house. Moreover, the mere fact that Genny Loftin had lived in the house for one and one-half years does not give rise to a reasonable inference that she knew of the defects later complained of by the Lees. Nor does the fact that Jeff Loftin had handled a sale of this house on one occasion in the past. Cf. Harrell v. Dodson, supra (repairs made by seller over a year before house was sold held not to create reasonable inference of concealment); accord, Blankenship v. Ogle, 418 So. 2d 126 (Ala.Civ.App.1982).
Finally, we must observe that Jeff Loftin, d/b/a Loftin Realty Company, was the listing agent, not the selling agent, in connection with the sale. The evidence discloses that Jeff Loftin did not participate in this sale and did not talk with plaintiffs. There was, in short, no evidence of any confidential relationship between Jeff Loftin and plaintiffs which would have created a duty on Loftin's part in connection with the condition of the house. In that regard, Cooper & Company v. Bryant, 440 So. 2d 1016 (Ala.1983), is instructive at 1018-19:
In this case, a different realtor, not a party to this action, brought the purchasers to this house. And, insofar as any "inequality of condition" may be considered, the record is absent of any suggestion of advantage taken by either Genny Loftin or Jeff Loftin of the Lees. It appears that the Lees had the opportunity to inspect the house, and did so on two occasions, and that their decision to purchase the house was based upon their inspections. They both, in fact, executed a statement to that effect.
For those reasons, the trial court did not err in granting summary judgment to these defendants on the concealment count.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] While some portions of the record refer to Loftin Gallery of Homes and another company, Loftin Realty Company, as separate defendants, we understand that these are both names under which the defendant Jeff Loftin does business. | February 22, 1985 |
693972d3-2285-418e-9c72-423c731ac38a | Carl v. Dixie Co. | 467 So. 2d 960 | N/A | Alabama | Alabama Supreme Court | 467 So. 2d 960 (1985)
Virginia Mae CARL
v.
The DIXIE COMPANY, et al.
83-393.
Supreme Court of Alabama.
February 8, 1985.
Rehearing Denied March 29, 1985.
Theodore L. Hall, Mobile, for appellant.
John D. Richardson and David F. Daniell, of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
ALMON, Justice.
This is an appeal from a summary judgment in favor of defendants in plaintiff's action for injury to her tooth and jaw she sustained while eating a chicken breast served by defendants. Plaintiff sued on the theory that defendants breached their implied warranty that their foods were clean, wholesome, free from harmful and injurious substances, and reasonably fit for human consumption. She argues that the court erred in granting summary judgment because the pleadings and affidavits present a scintilla of evidence to support her theory of recovery.
Virginia Mae Carl bought a chicken breast at a Colonel Dixie restaurant on July 3, 1981. She ate it by pulling the meat off in several pieces and placing it in her mouth. When she bit down on one such piece of meat, a hard substance broke one of her teeth and lodged in her jaw. She went immediately to a dentist, who removed the object but did not preserve it. Mrs. Carl testified in her deposition that she assumed the object was a bone, but she did not know.
She sued The Dixie Company, which owns and operates Colonel Dixie Restaurants, and Poultry Products Company, Inc., doing business as Jiffy June Poultry, which supplied the chicken to The Dixie Company. The Dixie Company and Poultry Products filed motions for summary judgment, arguing that under the rationale of Ex parte: Morrison's Cafeteria of Montgomery, Inc., 431 So. 2d 975 (Ala.1983), Mrs. Carl would not be entitled to recover under the facts as stated in her deposition.
Under the test set forth in Morrison's, if a person has a reasonable expectation of finding the injury-causing substance in the food, the seller does not breach his implied warranty that the food is fit for human consumption and not unreasonably dangerous. Mrs. Carl argues that she pulled the meat off the portion of the chicken breast where one does not ordinarily expect to find bones. This is too fine a line on which to base liability, at least in this *961 case, where Mrs. Carl has no evidence of what caused her injury.
One of the examples given in Morrison's of a food in which one reasonably expects to find bones was a chicken leg. A chicken breast has more bones than a chicken leg. To premise liability upon the fact that Mrs. Carl found a bone in a portion of the breast where she did not expect to find one would be to make The Dixie Company and Poultry Products insurers of the products they sell. This Court explicitly rejected that position in Morrison's.
For the reasons stated, the judgment of the circuit court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur. | February 8, 1985 |
cb5dafd4-63a9-47fd-b0d1-64b825de9c9d | Sparks v. State | 242 So. 2d 408 | N/A | Alabama | Alabama Supreme Court | 242 So. 2d 408 (1970)
Donald SPARKS
v.
STATE. Ex parte Donald SPARKS.
7 Div. 889.
Supreme Court of Alabama.
December 17, 1970.
H. T. Foster, Scottsboro and Loma B. Beaty, Fort Payne, for petitioner.
MacDonald Gallion, Atty. Gen., opposed.
*409 BLOODWORTH, Justice.
Petition of Donald Sparks for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Sparks v. State, 46 Ala.App. 357, 242 So. 2d 403 (7 Div. 9).
Writ denied.
SIMPSON, COLEMAN, MADDOX and McCALL, JJ., concur. | December 17, 1970 |
4f91caba-294e-455c-b95f-25fd515f58a7 | Ex Parte Blake | 469 So. 2d 1301 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1301 (1985)
Ex parte Arthur James BLAKE.
(Re Abe LEWIS, Junior and Arthur James Blake a/k/a "Arthur James Jackson" v. STATE of Alabama).
83-933.
Supreme Court of Alabama.
February 8, 1985.
Rehearing Denied April 5, 1985.
John E. Pilcher of Pilcher & Pilcher, Selma, for petitioner.
Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted certiorari in this case to review the issue of whether petitioner was denied his sixth amendment right to a speedy trial.
Petitioner was indicted on January 28, 1982. His trial was not until August 11, 1983. The various reasons and dates of petitioner's 19½ months' trial delay, as set forth by the Court of Criminal Appeals, 469 So. 2d 1291, are as follows:
In reaching its determination, the Court of Criminal Appeals applied the Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), four-part balancing test, which requires an inquiry into the following: (1) length of delay; (2) the reason *1303 for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. The Court of Criminal Appeals found that a significant portion of the trial delay occurred as a direct result of the state's attempt to implement its trial strategy. Four of the state's motions for continuance were grounded on its desire to take advantage of the newly promulgated Rule 15.4(b) of the Alabama Temporary Rules of Criminal Procedure, providing that separately indicted defendants may, under some circumstances, be joined for trial. The Court of Criminal Appeals found the following:
The Court of Criminal Appeals concluded that "because the total delay attributable to the state was only 9½ months and because Blake had shown no substantial prejudice, his sixth amendment rights were not violated." The court indicated that it was a "close case" and that if the delay had been significantly longer, that court would have had no hesitation in finding a constitutional violation.
Petitioner has established, and it is reflected in the Court of Criminal Appeals' opinion, that the state delayed the trial in order to perfect its trial strategy. No Alabama case squarely addresses the proper weight that should be accorded deliberate prosecutorial requests for trial delays which substantially contribute to the delay of a defendant's trial. Petitioner asks us to assume prejudice under the circumstances of this case. This we cannot do.
The fourth factor of the balancing test, prejudice, was discussed at length in Barker. The Supreme Court opined as follows:
Thus, the factors which must be examined to determine prejudice, as contemplated by the Supreme Court, include, among other things, death or unavailability of a witness or lapse of memory. Even if the prejudice element did not weigh in Blake's favor, however, the Barker Court held that it is not mandatory that all four factors be satisfied in order to determine that a defendant was deprived of his right to a speedy trial. These factors are related and "must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." Barker, supra, at 533, 92 S. Ct. at 2193.
After reviewing the totality of the circumstances of this case, we hold that the Court of Criminal Appeals correctly applied the applicable principles of law in finding that Blake was not denied his right to a speedy trial. Although the State's behavior, as the Court of Criminal Appeals found, makes this a "close case," we cannot justify a conclusion that Blake was seriously prejudiced by the delay, and thus denied his right to a speedy trial as contemplated by our state or federal Constitutions. The trial delay directly attributable to the State was only 9½ months. We are of the opinion that the balancing process required by Barker must be carefully applied, because a finding that one has been denied a speedy trial results in the serious consequence of allowing a defendant who may be guilty of a serious crime to go free. We would make such a determination in this case if we were not of the opinion that the factors weighing in favor of Blake were outweighed by the lack of prejudice and the relatively short length of the trial delay attributed to the state.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.
JONES, EMBRY and ADAMS, JJ., dissent.
JONES, Justice (dissenting).
I respectfully dissent. Blake was incarcerated from February 2, 1982, till August 11, 1983, awaiting trial (18 months, 10 days). None of the delays (justified or unjustified) except for two months, was occasioned by the Defendant. The Court of Criminal Appeals reduces the period of delay "attributable to the State [to] only 9½ months" by counting from the time of Defendant's "speedy trial" objection to the continuance granted November 1, 1982. What the Court of Criminal Appeals is saying is that, while only a two-month delay is attributable to the Defendant, only the last half of the total period between indictment and trial is reviewable when testing Defendant's "speedy trial" challenge. This includes the last five of a total of six delays granted at the request of the State.
I have no quarrel with the Court of Criminal Appeals' analysis as summarized above. Indeed, I further agree that the trial court's order of November 29, 1982, denying Defendant's objection and "speedy trial" demand was without error. From that point forward, however, it is my opinion that this Court's affirmance of the Court of Criminal Appeals' judgment overlooks one essential element in the requisite test of Defendant's constitutional right to a speedy trial: the reason for each delay requested by the State and the State's conduct with respect to its stated grounds for each such delay.
1) The first continuance was granted November 1, 1981, on the express condition that the "State would be prepared to try Blake as soon as it completed the trial of the co-defendant."
2) Implicit in the State's motion on January 10, 1983, requesting a continuance to April 1983, is its noncompliance with the explicit terms of the earlier order of continuance. This second of the last five requests for delay was grounded on the State's desire to consolidate Blake's case with those of the co-defendants pursuant to Rule 15.4(b), A.R.Crim.P.
*1305 3) At the call of the April docket, with more than sufficient time to comply with the consolidation rule's seven-day requirement, the State requested an additional seven days in order to effect the appropriate consolidation order.
4) At the end of that seven-day period, the State requested another continuance in order to comply with the rule's requirement regarding the number of veniremen.
5) Again, on the setting of the case for trial, the State requested and was granted a nine-day delay pursuant to Rule 15.4.
So struck with the severity of the cumulative adverse effect of these circumstances, the Court of Criminal Appeals was moved to observe: "In short, we believe that the nine and one-half month delay after November 1982 must be attributed solely to the prosecution and must be weighed heavily against the State."
Furthermore, as to the "Defendant's Assertion of [his] Rights," the Court of Criminal Appeals commented: "In accordance with Barker's admonition that we should weigh `the frequency and force of the objections (to delay) as opposed to attaching significant weight to a purely pro forma objection,' 407 U.S. at 529, we find that Blake strenuously asserted his rights and we conclude that this factor should weigh in his favor."
In spite of the obvious accuracy of these findings (indeed, both of these observations are understatements), coupled with Defendant's 18-month incarceration, the Court of Criminal Appeals nonetheless concluded that Defendant had not been prejudiced. If the totality of these circumstances falls short of the denial of a speedy trial, then I confess my gross misunderstanding of this constitutional guarantee. | February 8, 1985 |
ca97bd18-9ed6-4c5f-889b-22930fef7347 | Ex Parte Whisenant | 466 So. 2d 1006 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 1006 (1985)
Ex parte Darrell D. WHISENANT.
(Re: Darrell D. Whisenant v. State of Alabama).
83-824.
Supreme Court of Alabama.
January 25, 1985.
Fulton S. Hamilton, Simpson, Hamilton & Ryan, Huntsville, for petitioner.
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for respondent.
PER CURIAM.
Petitioner Darrell Whisenant, a juvenile, was taken into custody in connection with an investigation into the murder of Alan Frix, the burglary of Frix's residence, and the theft of Frix's automobile. After allegedly *1007 being given his Miranda rights, Whisenant made oral and written statements implicating himself in the crimes. A petition was filed seeking to transfer Whisenant from juvenile court to circuit court for prosecution as an adult. Whisenant's confession was offered at the transfer hearing to establish probable cause. The juvenile court, after consideration of the factors listed in Code 1975, § 12-15-34(d), granted the petition. On appeal, the Court of Criminal Appeals affirmed the decision. 466 So. 2d 995. We granted certiorari to consider the question whether Whisenant's confession was admissible at the transfer hearing.
Whisenant contends that the statement was inadmissible because he was not informed that he had a right to communicate with a parent or guardian, as is required by A.R.J.P. 11(A)(4). Rule 11(A) provides:
"(1) that he has the right to counsel;
Rule 11(A)(1), (2), and (3), taken together, are substantially the same as the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). By virtue of Rule 11(A)(4), this Court included an additional warning for the protection of juveniles. Given the applicability of the exclusionary rule to the first three warnings mandated by Miranda, the threshold question, then, is whether the exclusionary rule is equally applicable to the fourth requisite. We think this question is self-answering. The very inclusion of this fourth requisite in Rule 11(A), as an additional right to be accorded children within the protection of that rule, precludes any rational basis for distinguishing the treatment of this fourth warning from that accorded the first three.
The fallacy of the rationale employed by the Court of Criminal Appeals is demonstrated in the following sentence: "Neither Rule 11 or Rule 21 requires that the juvenile actually be advised by counsel or parent before waiving his rights." This treatment of the requisites prescribed by Rule 11 places subparagraph (4) on a different level, or treats it as being of a different quality, than the warnings listed under subparagraphs (1), (2), and (3). In reality, each of the four requisites stands on the same footing. To omit the fourth warning is as fatal as to omit of any one of the first three.
It is not a matter of a competent juvenile's capacity to waive his rights against self-incrimination. Rather, the question is whether he was advised of each of the four requisite elements prescribed by Rule 11(A). If any one or more of these warnings are omitted, the use in evidence of any statement given by the child is constitutionally proscribed. (It is worthy of note that the ongoing debate surrounding the court-created exclusionary rule with respect to Fourth Amendment rights is not here involved. The Fifth Amendment's protection against self-incrimination bears its own exclusionary rule.)
We turn now to the ultimate question, which, admittedly, is more difficult. May Whisenant's statement, concededly inadmissible in guilty/innocent determination proceedings, nevertheless be admissible in a probable cause hearing to determine whether he should be transferred to the circuit court and tried as an adult? In other words, is his right not to be compelled to give evidence against himself (Art. 1, § 6, Ala. Const.1901), as that constitutional proscription is implemented by the guidelines of A.R.J.P. 11(A), being compromised *1008 by allowing his otherwise inadmissible extrajudicial statement to be used in a transfer hearing?
Code 1975, § 12-15-66(b), is a codification of the general law made applicable to children. It reads in part:
The Court of Criminal Appeals, citing § 12-15-66(b) in Ash v. State, 424 So. 2d 1381 (Ala.Cr.App.1982), held that the admissibility issue with respect to the child's statement was properly raised and addressed at a transfer hearing. This Court, however, in Winstead v. State, 371 So. 2d 418 (Ala.1979), and in Snow v. State, 423 So. 2d 220 (Ala.1982), held that consideration of constitutional issues concerning admissibility of a child's statement, while appropriate in the later guilty/innocent determination proceeding, was not appropriate in a transfer hearing because of the probable cause nature of such a hearing.
On reflection, we are now clear in our resolve that the Court of Criminal Appeals correctly ruled in Ash and that this Court incorrectly ruled in Winstead and Snow. Winstead's emphasis on the proposition that, because the transfer hearing is not held to determine innocence or guiltand thus the strict rules of evidence do not applyoverlooks an essential element in the nature of the evidence in question. We are not here speaking of evidence in the ordinary sense of the word. Indeed, we are not talking about admissibility as governed by the rules of evidence.
Instead, we are talking about evidence in the form of an inculpatory statement of the accused, the admission of which is violative of his constitutional right to remain silent, unless he has first been advised of that right, as implemented by statutes, case law, and rules of court, and, upon being so advised, has voluntarily waived that fundamental right. We find nothing in the nature and character of a transfer hearing, vis-a-vis a guilty/innocent determination hearing, that transcends the absolutism of the fundamental guarantee against self-incrimination.
At the transfer hearing, his statement was offered as "evidence against himself," within the very proscriptive language of the State Constitution. To relax the strict rules of evidence for purposes of the transfer hearing, when its application is restricted to matters ordinarily governed by the rules of evidence, is one thing; but to carry its application to the extent of allowing the admission of an otherwise inadmissible statement of the accused is constitutionally impermissible. The right against self-incrimination protected by the State Constitution with respect to the trial on the merits is the same right that is likewise protected with respect to the transfer hearing.
Therefore, we reverse the judgment of the Court of Criminal Appeals and remand this cause for the entry of an order consistent with this opinion.
REVERSED AND REMANDED.
FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX and BEATTY, JJ., dissent.
TORBERT, Chief Justice (concurring in part and dissenting in part).
I dissent from that part of the majority opinion which holds that constitutional issues concerning the confession can be raised at the transfer hearing. Before I address that issue, I think it would be useful to explain why the warning set forth in A.R.J.P. 11(A)(4) must be given.
I begin with a review of the reasons for the holding in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Supreme Court spoke of the Fifth Amendment privilege:
Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624, 16 L. Ed. 2d 694 (1966). In order to protect the privilege, the Court held that before a statement obtained would be admitted, the individual must be given what are now known as the Miranda rights. Voluntary statements are admissible. Id. at 478, 86 S. Ct. at 1629-30. The Miranda rights are designed to make an individual in custody aware of the privilege against self-incrimination. Without a showing that one had a recognition of his rights, it is difficult to establish that those rights were knowingly, intelligently, and voluntarily relinquished and that any statement was made voluntarily.
Id. at 468, 469, 86 S. Ct. at 1625.
Miranda set up a structured procedure to determine whether a confession was admissible. The prescribed warnings must be given as a matter of course to ensure that the individual is aware of his rights. Failure to give the warnings before interrogation begins results in a determination that the statement given is inadmissible. Id., 384 U.S. at 476, 86 S. Ct. at 1628-29. Once the warnings are given, the admissibility of the statement depends upon whether under the totality of the circumstances the individual knowingly, intelligently, and voluntarily waived the privilege against self-incrimination. Id., 384 U.S. at 444, 86 S. Ct. at 1612; Wright v. State, 340 So. 2d 74 (Ala.1976); Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979).
In Fare, the Supreme Court held that a request by a juvenile to see his probation officer was not a per se invocation of his Fifth Amendment rights. The Court noted that "[w]here the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination." Id., 442 U.S. at 725, 99 S. Ct. at 2572. Because of the lack of special emphasis on the parental relationship, the implication of Fare is that the Court would not require any additional Miranda-type warnings concerning the right to communicate with parents or guardians in the case of juveniles.[1] In the present case, the Court of *1010 Criminal Appeals followed the lead of the Supreme Court and held that whether the juvenile was given an opportunity to communicate with a parent or guardian is a factor to be considered in determining whether, under the totality of the circumstances, the juvenile waived his rights. Whisenant v. State, 466 So. 2d 995 (Ala. Crim.App.1984).
We recently had occasion to discuss the privilege against self-incrimination and the Miranda protections of the privilege as applied to juveniles:
Walker v. State, 433 So. 2d 469, 473 (Ala. 1983). As this quote indicates, children deserve no less protection against coerced or innocent self-incrimination than do adults. The question is then presented as to whether the standard Miranda warnings protect a juvenile to the same extent they protect adults.
It has been asserted that juveniles can not make an intelligent, knowing, and voluntary waiver without some kind of guidance, and one study has indicated that ninety percent of a test group of juveniles, whose average age was fourteen, did not fully understand the Miranda warnings after the warnings had been read to them. Comment, Fare v. Michael C: Blurring the Distinction Between Minors and Adults in Custodial Interrogations, 12 Sw.U.L.Rev. 129 (1981).[2]
Several states have decided that juveniles need more protection than adults to ensure they do not mistakenly waive their right against self-incrimination.[3] While the majority of states include considerations of age, maturity, and opportunity to consult with an interested adult as factors to be considered under the totality-of-the-circumstances test in determining if there was a valid waiver, there are compelling reasons why specific safeguards are appropriate.
The Indiana Supreme Court articulated some of the reasons for establishing different safeguards:
Lewis v. State, 259 Ind. 431, 437, 288 N.E.2d 138, 141 (1972).
Louisiana, in rejecting the totality-of-the-circumstances test, pointed out that the considerations leading to the holding in Miranda compel special handling of juveniles:
State in Interest of Dino, 359 So. 2d 586, 591 (La.1978).
The Constitution of Alabama gives this Court the authority to promulgate rules of procedure in all courts. Ala. Const. 1901, amend. 328, § 6.11. The constitutional authority in the area of rules of juvenile procedure is codified in Code 1975, § 12-15-2(c). A.R.J.P. 11(A) states that a juvenile must be informed of certain rights. In addition to the standard Miranda warnings, a juvenile must also be informed that he can communicate with a parent or guardian. I believe that such a warning is a necessary procedural safeguard to protect a juvenile from innocently waiving his privilege against self-incrimination.[4] Requiring *1012 such a warning does not significantly increase the burden on law enforcement officials and, in fact, should promote efficiency by ensuring that constitutional guidelines are met. This simple warning will give the juvenile the opportunity to obtain the guidance that may be necessary in order for him to evaluate his rights.
Not only does being informed of the right to communicate with a parent or guardian give the juvenile an opportunity to secure guidance from the parent or guardian, but also the parent or guardian may be the conduit through which the juvenile secures an attorney. A.R.J.P. 11(A)(2) recognizes that the child may rely on a parent or guardian to provide a lawyer. While a juvenile is supposed to be informed that he can have an attorney, "`[i]t is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance,' [In Re Michael C.], 21 Cal. 3d 471, 475-476 [146 Cal. Rptr. 358, 360], 579 P.2d 7, 9 (1978), quoting People v. Burton, 6 Cal. 3d 375, 382 [99 Cal. Rptr. 1, 5], 491 P.2d 793, 797 (1971), or that he will trust the police to obtain a lawyer for him." Fare v. Michael C., 442 U.S. 707, 730, 99 S. Ct. 2560, 2574, 61 L. Ed. 2d 197 (1979) (Marshall, J., dissenting). The importance of having access to legal counsel is thoroughly discussed in Miranda, 384 U.S. at 466, 467, 86 S. Ct. at 1623, 1624. Therefore, I agree that a juvenile must be informed of all of the rights contained in A.R.J.P. 11(A) prior to custodial interrogation as a prerequisite to the admission in a guilt determinative proceeding of any statement obtained.
However, Whisenant's statement was not used in a guilt determinative proceeding. The statement was offered to establish probable cause in the transfer hearing, as is required under Code 1975, § 12-15-35(f). Duncan v. State, 394 So. 2d 930 (Ala.1981). A transfer hearing has been classified as a probable cause hearing, Winstead v. State, 371 So. 2d 418 (Ala. 1979), and because it is not held to determine guilt or innocence, the strict rules of evidence do not apply. Winstead, supra; Vincent v. State, 349 So. 2d 1145 (Ala. 1977); Gulledge v. State, 419 So. 2d 219 (Ala.1982).
In Winstead we held that failure to comply with § 12-15-67 (now repealed), which made a juvenile's statements inadmissible unless made with counsel present, did not preclude the use of the statement to establish probable cause at the transfer hearing. A.R.J.P. 21, prior to amendment in 1982, conformed with the provisions of § 12-15-67. When § 12-15-67 was repealed, A.R. J.P. 21 was amended, and it now provides:
A.R.J.P. 21 now substantially conforms with the provisions of Code 1975, § 12-15-66(b), which states:
This Court said in Snow v. State, 423 So. 2d 220 (Ala.1982), that constitutional questions concerning the admissibility of evidence raised by appellant, while relevant at a later proceeding, are not appropriate in a transfer hearing. This holding is in accord with the general rule that such constitutional questions are not properly raised in probable cause hearings. See Rule 5.1, Federal Rules of Criminal Procedure, Notes of Advisory Committee on Rules. In Ash v. State, 424 So. 2d 1381 (Ala.Crim. App.1982), the Court of Criminal Appeals said that the issue of the admissibility of the juvenile's statement had to be addressed at the transfer hearing because of § 12-15-66(b). Just as we held in Winstead that § 12-15-67 and, implicitly, old A.R.J.P. 21 did not preclude admission of a possibly tainted statement, at a transfer *1013 hearing, the holding in Snow implicitly determined that § 12-15-66(b) and new A.R. J.P. 21 do not preclude the use of such a statement at a transfer hearing. To the extent that the holding in Ash conflicts with this Court's decision in Snow, Ash should be overruled.
Therefore, I believe that Whisenant's statement is not inadmissible at the transfer hearing under § 12-15-66(b) or A.R. J.P. 21.
MADDOX and BEATTY, JJ., concur.
[1] While it is clear that the privilege against self-incrimination applies to juveniles, In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), it is not clear that any Miranda warnings are required to be given to juveniles. In Fare the Court assumed, without deciding, that Miranda did apply. Fare v. Michael C., 442 U.S. 707, 717 n. 4, 99 S. Ct. 2560, 2567 n. 4, 61 L. Ed. 2d 197. In California v. Prysock, 453 U.S. 355, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981), the Court apparently again assumed Miranda did apply to juveniles. At least one commentator, however, believes that the Court will require more warnings for some juveniles. W. Ringel, Searches and Seizures, Arrests and Confesions, § 26.6(b)(1) (2d ed. 1984). Support for the view that juveniles may require expanded Miranda rights can be found in the pre-Fare cases of Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948), and Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962), where the Court stressed the need for adult advice.
[2] See, also, K. Seman, A Juvenile's Waiver of the Privilege Against Self IncriminationA Federal and State Comparison, 10 Am.J.Crim.L. 27 (1982) (studies indicate a lower level of understanding of Miranda warnings in juveniles than in adults); Comment, Interrogation of Juveniles: The Right to a Parent's Presence, 77 Dick.L.Rev. 543 (1973); A. Ferguson and A. Douglas, A Study of Juvenile Waiver, 7 San Diego L.Rev. 39 (1970).
[3] Indiana: Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972); Louisiana: State In Interest of Dino, 359 So. 2d 586 (La.1978); Vermont: In Re E.T.C., 141 Vt. 375, 449 A.2d 937 (1982); Pennsylvania: Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977); Connecticut: Conn. Gen.Stat. § 46b-137(a) (1983); Colorado: Colo. Rev.Stat. § 19-2-102(3)(c)(I) (1973); New Mexico: N.M.Stat.Ann § 32-1-27 (1978); North Carolina: N.C.Gen.Stat. § 7A-595(a)(3) (1981); Oklahoma: Okla.Stat. tit. 10 § 1109(A) (1981).
[4] The additional protection for juveniles is in keeping with Miranda's encouragement to "search for increasingly effective ways of protecting the rights of individuals while promoting efficient enforcement of our criminal laws." Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624, 16 L. Ed. 2d 694 (1966). | January 25, 1985 |
ceec6a20-8a65-4779-9c1e-aea6c25e8c87 | Ex Parte Gilchrist | 466 So. 2d 991 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 991 (1985)
Ex parte Robert Stephen GILCHRIST.
(Re: Robert S. Gilchrist v. State).
83-753.
Supreme Court of Alabama.
March 8, 1985.
*992 T. Jefferson Deen, III, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
This Court granted certiorari based upon the petitioner's claim that the Court of Criminal Appeals, 466 So. 2d 988, erred in failing to address the issue of the propriety of the district attorney's action in testifying as a witness and later acting as a prosecutor in the same case.
Petitioner has employed Rule 39(k), A.R. A.P., to provide facts not included in the opinion below. Those facts sufficiently establish that the district attorney of Mobile County did testify as a prosecution witness and thereafter also acted as a prosecutor of the State's case, examining witnesses and delivering a closing argument.
There is no ironclad rule against a prosecutor's testifying as a witness; the subject is largely one of discretion on the part of the trial judge. Even so, that discretion has been held to be measured against and based upon the necessity for his testimony according to the circumstances of the case. Maund v. State, 254 Ala. 452, 48 So. 2d 553 (1950), contains a recitation of the rule as stated in 70 Corpus Juris at 183. That rule contains a strict limitation, however:
This aspect of the rule was discussed at length by the Court of Criminal Appeals in Waldrop v. State, 424 So. 2d 1345, 1347 (Ala.Crim.App.1983), which also quoted from State v. Hayes, 473 S.W.2d 688, 54 A.L.R.3d 93 (Mo.1971):
The Court of Criminal Appeals continued at 1348:
There is no question that the district attorney here knew in advance that he would be a witness in this prosecution. An assistant district attorney apparently was in charge of the State's case and made the State's opening statement. The trial court then called the assistant district attorney and the two lawyers representing the petitioner to the bench for a side-bar conference:
This objection and ruling referred only to the invocation of the rule regarding the presence of witnesses in the courtroom, and thus applied only to the district attorney's role as a witness. At that point, Mr. Galanos had made no appearance other than as a witness, and, in fact, had not testified.
Later, when the district attorney examined a prosecution witness, Rhoda Lynn Schultz, no objection to his participation was made. Nor was there any defense objection when he argued in opposition to the defense's motion to exclude, or when he made his closing argument before the jury.
At the point when the district attorney assumed the dual role of witness and prosecutor, his conduct offended the rule that both this Court and the Court of Criminal Appeals have heretofore recognized.
It is appropriate, therefore, to quote from Waldrop v. State, supra, at 1348:
In Waldrop, supra, the district attorney's conduct constituted reversible error. In this case, however, since there was no objection, no error was preserved below, and error cannot be asserted thereon for the first time on appeal. Thomas v. State, 393 So. 2d 504 (Ala.Crim.App.1981). The failure to object waived the prosecutorial error. Cf. 6B Ala.Dig. Criminal Law Key Nos. 1028 and 1030(2).
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
TORBERT, C.J., and MADDOX, ALMON, EMBRY and ADAMS, JJ., concur.
FAULKNER, JONES and SHORES, JJ., dissent.
JONES, Justice (dissenting).
I respectfully dissent. I believe the severity of the prosecutorial misconduct, as detailed in the majority opinion, calls for this Court's exercise of its supervisory and inherent power to correct the basic unfairness that permeated this trial. I appreciate the opinion's reliance upon the "preservation of error" rule; but, in my opinion, the ethical considerations here involved transcend that traditional rule and invoke the trial court's affirmative duty to control the conduct of the lawyers as trial counsel and officers of the court.
Look again, if you will, at the cumulative effect of the district attorney's conduct: First, he sat at the counsel table knowing that he was going to testify as a material witness for the State; then, in fact, he did testify; next, he examined and cross-examined witnesses concerning the very matters about which he had testified; and, finally, he argued the State's case to the jury. The gravity of the district attorney's improper conduct is dramatized when we look beneath the surface of these events and recognize that the purpose of his testimony was to contradict the testimony given by the Defendant; and then he compounded the error by arguing to the jury his own credibility.
When it was first brought to the trial court's attention that the district attorney was a potential witness, the court should have given the district attorney a choice: either he could participate at the trial as the State's counsel or he could testify. He could not do both under the instant circumstances. In fact, if the district attorney had been forced to make an election at this point in the trial, pursuant to the clear mandate of the Code of Professional Responsibility, the errors that followed would not have occurred. (It should be noted here that this adverse ruling was properly preserved by an appropriate objection.) As to the applicability of the Code of Professional Responsibility to district attorneys, see Waldrop v. State, 424 So. 2d 1345 (Ala. Cr.App.1982).
But, beyond this, when the district attorney was excused from the rule regarding the presence of witnesses in the courtroom, and then presented himself as a witness on behalf of the State, the trial court should have interceded. Because the court did not intercede at this point, when the district attorney further participated in examining and cross-examining witnesses and arguing the case to the jury, the court should have acted on its own, in the interest of basic fairness, to declare a mistrial. Moreover, the trial court's sua sponte action was called for because trial counsel's improper conduct was in open court and in the presence of the judge. See People v. Arends, 155 Cal. App. 2d 496, 318 P.2d 532 (1957).
For a good statement of the rule that the trial judge is more than a mere referee in a contest between opposing parties or counsel, see 88 C.J.S. Trial § 36 (1955). While the court is allowed a considerable latitude of discretion in the conduct of the trial, the trial court's not taking corrective action, *995 when required by the facts, is as much an abuse of judicial discretion as an improperly exercised discretion. Strzebinska v. Jary, 58 R.I. 496, 193 A. 747 (1937); and Banister v. Hubbard, 82 Ga.App. 813, 62 S.E.2d 761 (1950).
While the primary line of defense against improper prosecutorial conduct lies with the trial court, an appellate court should not hesitate to correct an error that has not been corrected at the trial level. As succinctly stated in Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex.L.Rev. 629, 655-56 (1972):
For the foregoing reasons, I would reverse the judgment of the Court of Criminal Appeals. | March 8, 1985 |
4bc45da5-6c60-4f11-9c5a-f7746d5b95c3 | Ex Parte Humana, Inc. | 462 So. 2d 922 | N/A | Alabama | Alabama Supreme Court | 462 So. 2d 922 (1985)
Ex parte HUMANA, INC.; Humana Hospital-Enterprise; Enterprise Medical Clinic; Dr. Wendell Vickers; Dr. William L. Mitchell; and Dr. Horace E. Sanders.
In re Jeanna Marie BARLOW, a minor who sues by and through her father and next friend, Coston BARLOW; Coston Barlow and Gloria Barlow
v.
HUMANA, INC., et al.
84-1.
Supreme Court of Alabama.
January 4, 1985.
Michael S. Jackson of Melton & Espy and John Milling of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for petitioners.
*923 W. Sidney Fuller, Andalusia, and Thomas E. Dutton and Timothy C. Davis, Birmingham, for respondents.
BEATTY, Justice.
Petition for a writ of mandamus directed to The Honorable Terry L. Butts, Judge of the Circuit Court of Coffee County, to order Judge Butts to transfer the case of Jeanna Marie Barlow, pro ami v. Humana, Inc., et al., from the Elba Division to the Enterprise Division of Coffee County. The writ is granted.
In support of their petition, the petitioners cite us to the Alabama Constitution of 1901, § 232; Code of 1975, §§ 6-3-2, -7, and -10 and 12-11-11; Rule 82(c), A.R. Civ.P.; and to Glenn v. Wilson, 455 So. 2d 2 (Ala.1984); Ex parte Parker, 413 So. 2d 1105 (Ala.1982); Ex parte Wilson, 408 So. 2d 94 (Ala.1981); Hodges v. General Shale Products Corporation, 346 So. 2d 416 (Ala.1977); and Ex parte Southern Building Code Congress, 282 Ala. 523, 213 So. 2d 365 (1968). Petitioners also refer to Acts of Alabama 1903, No. 360, pp. 285-289, Section 1, which provided for the jurisdictions of the Enterprise and Elba Divisions of the Circuit Court of Coffee County:
This section continues with the establishment of a territorial dividing line, "which said line shall be known as the dividing line between the Elba and Enterprise jurisdictions of said courts," and further, under Section 3:
"[T]he Circuit Court of Coffee County held in and for the Enterprise Division shall have exclusive jurisdiction of all civil causes of which the Circuit Court of Coffee County has jurisdiction wherein the defendants reside in the district or territory East of said dividing line or where the cause of action arose east of said dividing line...."
In the underlying action, Barlow v. Humana, Inc., et al., plaintiff sued Humana, Inc., Humana Hospital-Enterprise (formerly Coffee General Hospital or Gibson Hospital), Enterprise Medical Clinic, and Drs. Vickers, Mitchell, and Sanders. The lawsuit was filed in the Elba Division of Coffee County. According to the petitioner, venue is proper in the Enterprise Division of the Circuit Court of Coffee County, not the Elba Division. Affidavits adduced by the petitioners establish that Humana Hospital-Enterprise (formerly Coffee General Hospital or Gibson Hospital) does not do, and has never done, business in the Elba Division but only in the Enterprise Division; that Humana, Inc., does not do, and has not done, business in the Elba Division; that Enterprise Medical Clinic has never done any business in the Elba Division; and that Drs. Vickers, Mitchell, and Sanders, all of whom reside in Enterprise, do not practice, and have never practiced, medicine in the Elba Division. According to the petitioners' evidence, the incident made the basis of the lawsuit occurred in Enterprise. Under these circumstances, petitioners argue, the trial court should have granted their motion to change the venue of the cause from Elba to Enterprise.
Rule 82, A.R.Civ.P., provides in part:
Rule 82(b) applies only to individuals, not to corporations or other entities.
Code of 1975, § 6-3-7, the corporation venue statute, provides:
The gist of respondent's opposition to the petition is that the statutes and rules on venue have been complied with, and that no showing has been made of any abuse of the trial court's discretion in denying the change.
It is true, as respondents contend, that Rule 82 refers to the proper county. In view of the legislation establishing the Elba and Enterprise Divisions of Coffee County, however, the facts that (1) the injury occurred in Coffee County, and (2) the plaintiffs reside in Coffee County, do not themselves suffice to resolve the venue question.
This Court recently decided a case also involving a circuit court division raising a venue question, Glenn v. Wilson, 455 So. 2d 2 (Ala.1984). That case determined that a sale for the division of land, which lay in the Bessemer Division of Jefferson County, was due to be set aside because the action had been improperly tried in the Birmingham Division of Jefferson County. This conclusion was reached due to the adoption of a legislative act recreating the Bessemer Division of the Jefferson County Circuit Court. We commented upon the trial court's action:
455 So. 2d at 3-4.
Although United Supply Co. involved a lien on land, that fact alone does not militate against the transfer here, for Glenn, supra, explained at 4-5:
"The Bessemer Cutoff legislation does not diminish the general jurisdiction of other circuit courts, either in Jefferson or other counties. Therefore, in those Jefferson County cases subject to transfer to the other division pursuant to § 12-11-11, a claim for transfer based on the improper filing may be waived, just as in a suit filed in some other county the parties may waive claims of improper venue."
In this case, it appears without dispute that the acts or omissions complained of occurred in the Enterprise Division of the Coffee County Circuit Court, not in the Elba Division. It is also without dispute that none of the defendants did business or does business in the Elba Division or resides in the Elba Division. To the contrary, all reside and do business in the Enterprise Division. Under the statute creating the two divisions, and under the reasoning of Glenn, supra, citing Code of 1975, § 12-11-11, the petitioners had a clear right to the relief prayed for, i.e., transfer of the cause to the Enterprise Division of the Coffee County Circuit Court.
WRIT GRANTED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | January 4, 1985 |
24016c6d-6519-4512-8416-485ab053a31b | Smith v. Smith | 466 So. 2d 922 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 922 (1985)
Ray M. SMITH
v.
Roy J. SMITH.
No. 83-168.
Supreme Court of Alabama.
February 15, 1985.
*923 Herman H. Hamilton, Jr., and Henry C. Barnett, Jr., Capell, Howard, Kanbe & Cobbs, Montgomery, William M. Cunningham, Jr., Mobile, for appellant.
Irvin J. Langford, Howell, Johnston & Langford, Mobile, for appellee.
ADAMS, Justice.
Roy Smith filed suit against his twin brother Ray Smith for specific performance of an oral contract made 17 years earlier for the exchange of two parcels of land. The case was tried without a jury and judgment was rendered in favor of Roy. Ray appeals and asserts as one of his grounds that the trial court erred in not holding that the contract was barred by the Statute of Frauds. We agree.
The facts in this contract dispute are as follows: Ray Smith has title to an 80-acre rectangular tract of land which he originally purchased in 1943. In 1950, Ray acquired, along with his brother Roy and their mother, joint title to a 42-acre tract situated in a cattycornered position to the southwest of Ray's 80 acres. The attached Appendix illustrates the relative positions of these tracts of land. In 1960, Ray and his mother conveyed their interests in the 42-acre tract to Roy. This was done so that Roy could mortgage that property to obtain purchase money to buy an 80-acre tract immediately north of the 42 acres and immediately west of Ray's 80-acre tract.
The parties disagree as to any further significance of the 42-acre conveyance to Roy. Ray contends that the transfer was solely to enable Roy to buy the 80-acre tract to the north, and says he understood that Roy would convey ½ of the 42-acre block to Ray when the mortgage was eventually paid. Roy, on the other hand, claims that the conveyance of the 42 acres to him was part of a plan his parents devised whereby Roy would eventually convey ½ of the 42 acres to Ray with Ray in turn conveying ½ of his 80-acre tract to Roy, thus leading to the ownership of equal acreage by the twins (except for the 80-acre tract Roy purchased with the mortgage money).
Roy conveyed approximately 20 acres of the 42-acre tract to Ray on December 30, 1963. This is the date of the alleged oral contract by which Roy contends that Ray agreed to convey the north ½ of Ray's 80-acre tract to Roy. Ray denies such an agreement. In May 1981, Roy brought suit against Ray, asking for specific performance of the oral contract.
Ray herein appeals from the judgment rendered below in favor of Roy. Ray asserts the following as error: 1) the trial court's failure to accept the Statute of Frauds as a bar to enforcement of the oral contract; 2) the trial court's failure to accept the statute of limitations as a bar to enforcement of the oral contract; and 3) the trial court's enforcement of a contract conveying homestead property in spite of the failure of Ray's wife to consent to the contract.
*924 We hold that the lower court erred when it failed to find the oral contract barred by the Statute of Frauds. We pretermit addressing appellant's other assertions of error.
The Alabama Statute of Frauds reads, in pertinent part, as follows:
Certain agreements void unless in writing.
Code, 1975, § 8-9-2. In Smith v. East Alabama National Bank, 221 Ala. 322, 128 So. 600 (1930), this Court construed an earlier enactment of the Statute in this way:
221 Ala. at 323, 128 So. at 601.
Therefore, in order for Roy Smith to win his case against his brother Ray, he had to prove not only the existence of the oral contract, but additionally that the contract met the exception to the Statute of Frauds; that is, that Roy gave the required consideration or a part thereof to Ray, and that Roy took possession of the land which was the subject of the contract.
This case was tried ore tenus and the court entered judgment in favor of Roy Smith. The written findings of fact indicate that the court found that the parties had indeed entered into an oral contract to exchange the lands in question, and that Roy Smith performed his obligation under the contract by conveying property to Ray Smith. The court made no findings, however, in regard to the possession of the land which is the subject of the specific performance. As mentioned above, possession is of crucial importance in removing a contract from the stricture of the Statute of Frauds.
The possession requirement of the "part performance exception" to the requirement of a writing in land sales contracts was addressed in Houston v. McClure, 425 So. 2d 1114 (Ala.1983). In that case, we reversed a summary judgment entered in a specific performance suit because there was a factual issue as to whether the acts of possession in the case were "referable exclusively to the contract."[1] This requirement is mentioned in Hagood v. Spinks, 219 Ala. 503, 122 So. 815 (1929), in which the Court said:
219 Ala. at 504, 122 So. at 816. The meaning of "referable exclusively to the contract" was discussed in Jones v. Jones, 219 *925 Ala. 62, 121 So. 78 (1929). The Court stated as follows:
219 Ala. at 63-64, 121 So. at 78. The Jones Court went on to say that
219 Ala. at 64, 121 So. at 78. The Court went further in adopting the following excerpt:
219 Ala. at 64, 121 So. at 79.
Additionally, in Knight v. Smith, 250 Ala. 113, 33 So. 2d 242 (1948), it was restated that "our decisions are to the effect that possession must be of a notorious and exclusive character to bring the case within the exception of the Statute [of Frauds]." 250 Ala. at 114, 33 So. 2d at 243. In Jones, supra, the Court said that "[i]n some jurisdictions joint possession suffices in cases of this character, while our decisions require the possession to be both notorious and exclusive." 219 Ala. 64, 121 So. at 79. See also Krieger v. Krieger, 276 Ala. 466, 163 So. 2d 623 (1964).
It is impossible to determine the reasoning of the trial court in granting specific performance to Roy, since there are no written findings of fact on the issue of possession. From a silent record we can only presume that the court either found that Roy's possession of the land in issue satisfied the part performance exception to the Statute of Frauds, or if not, that the court applied incorrect principles of law to the facts of this case in reaching its decision.
In Powers v. Board of Control of Judicial Retirement Fund, 434 So. 2d 745 (Ala.1983), we stated this:
It is a well-settled principle that:
Thomas v. Davis, 410 So. 2d 889, 891 (Ala.1982).
434 So. 2d at 749. Having reviewed the record in this case, we conclude that the findings of fact on the issue of possession necessary to support the judgment of the trial court are clearly erroneous and against the great weight and preponderance of the evidence. Thus, the presumption of correctness given to factual findings based on ore tenus evidence is overcome in this case. Alternatively, if the court did not apply the correct principles of law in this case, then the ore tenus rule is not even applicable. Under either rubric, the trial court committed reversible error.
Roy Smith's direct testimony indicates that after December 30, 1963, the date of the alleged oral contract, Roy measured the boundaries of the portion he now claims and "blazed" a line marking the boundary. He grazed cattle on the land *926 periodically, granted permission to third parties to hunt on the land, and cut timber on the land. Roy argues that these are acts of possession "referable exclusively" to the contract.
When asked on cross-examination how he had used the land in question prior to December 30, 1963, Roy testified that he farmed the land, cleared stumps, put in a temporary road, cleared a site for a lake, cut timber, maintained fences, "ran" cattle, and hunted on the land. Roy stated that "It is my half of it, and I used it just exactly as it was mine, because it is in fact, it just happens not to be in deed." R-41.
On further cross-examination, Roy was again asked to describe how he used the land after the date of the oral contract. He answered as follows:
R-49. Shortly thereafter, the following dialogue occurred:
R-49.
In addition to this testimony, the evidence includes an affidavit signed by Roy Smith in 1976 for Union Oil prior to that company's leasing the mineral rights to the land. In the affidavit, Roy acknowledges that Ray Smith is the legal record owner of the land and goes on to say this:
The extent and manner of Roy Smith's possession of the 80-acre tract of land in dispute, as reflected in the record, cannot be said to be "referable exclusively to the contract." Hagood, supra. We do not think that an outsider viewing the circumstances of Roy's possession would "naturally and reasonably infer that some contract existed relating to the land." Jones, supra. By his own admission, Roy Smith's manner of possession of the land was substantially the same before and after the oral contract was made.
Moreover, considering the history of the land and the fact that the litigants are twin brothers, Roy Smith's possession could be viewed as referable to a "domestic relationship of the vendor and vendee," and not to a contract. Jones, supra. Since Roy's possession could be accounted for by a relationship between him and Ray other than contract, "it is not such a possession as the doctrine [of part performance] requires." Jones, supra.
Furthermore, the evidence indicates joint possession of the land in question by Roy and Ray. Since Ray has the legal title to the property, "possession will be referred to the [holder of] legal title" and not to Roy. Jones, supra. Joint possession defeats the part performance doctrine for the additional reason that Roy's possession is not "notorious and exclusive." Knight, supra.
Based upon the above-cited principles of law and the evidence in this case, we hold that the trial court either applied incorrect law or reached factual conclusions against the great weight and preponderance of the evidence. For this reason, we reverse that part of the decision of the trial court granting specific performance of the contract *927 and an accounting, and render judgment in favor of Ray Smith. We affirm that part of the judgment granting an easement to Ray Smith.
AFFIRMED IN PART; REVERSED IN PART AND JUDGMENT RENDERED FOR APPELLANT.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur.
[1] In a more recent decision, Houston v. McClure, 456 So. 2d 788 (Ala.1984), we affirmed the trial court's finding on remand that the part performance exception to the Statute of Frauds was met. | February 15, 1985 |
ceba9126-58b4-467b-9b6e-4695e66020bc | Eady v. Stewart Dredging & Const. Co. | 463 So. 2d 156 | N/A | Alabama | Alabama Supreme Court | 463 So. 2d 156 (1985)
Richard EADY, Individually and d/b/a Eady Sand & Gravel
v.
STEWART DREDGING & CONSTRUCTION COMPANY, INC.
83-1255.
Supreme Court of Alabama.
January 25, 1985.
*157 J.B. Nix, Jr., Evergreen, for appellants.
William D. Melton, Evergreen, for appellee.
TORBERT, Chief Justice.
Plaintiff, Stewart Dredging and Construction Company, Inc., brought suit to recover sums due for work and labor done and materials furnished. The case was tried without a jury on April 5, 1984. The defendant, Richard Eady, d/b/a Eady Sand and Gravel, before resting his case, sought a continuance in order to locate a witness, Larry Parker. The defendant contends that the court granted a continuance for the reason defendant advanced. The trial court granted a continuance, but made it clear that the reason for granting the continuance was not so the defense could locate Mr. Parker:
The record and briefs fail to specify what, if anything, happened until on June 19, 1984, judgment was entered for the plaintiff. The defendant then brought this appeal.
Appellant's brief contains no statement of the issue presented nor any citation of authority in support of his contentions concerning that issue, as required by A.R. App.P. 28(a)(3). The short argument by appellant, again presented without authority, also fails to set forth any issue. Only in the prayer for relief is there an indication of the issue appellant raises:
Failure to comply with A.R.App.P. 28(a)(3) has been held to be a failure to properly present an issue for appellate review. Mitchell v. State, 450 So. 2d 140 (Ala.Civ.App.1984). Although the spirit of the appellate rules is to reach a decision on the merits as opposed to disposing of a case on procedural technicalities, A.R. App.P. 1, this Court's task in deciding the case on the merits is made extremely difficult when the appellant's failure to comply with the rules leaves us with little insight as to the nature of the appeal. In addition, appellee makes a good argument that it is prejudiced by the appellant's failure to comply with the rules, claiming appellee "is at a loss to respond to the appeal since no legal issues have been presented for review and no authorities cited thereunder."
However, in spite of the deficiencies in appellant's brief, we will address the issue as we perceive it. First, as already noted, the continuance was not granted on the basis the appellant alleges. We presume that appellant really asserts as error the trial court's denial of a continuance so that appellant could locate a witness. A trial court's grant or denial of a continuance is a matter of discretion and will not be reversed unless a gross abuse of discretion is shown. Madison v. Weldon, 446 So. 2d 21 (Ala.1984). Appellant has not shown that the trial court abused its discretion. The judgment for the plaintiff is affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur. | January 25, 1985 |
94c98e60-0fe0-4113-8dcc-587130cb8273 | Davis v. Southland Corp. | 465 So. 2d 397 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 397 (1985)
Carnell DAVIS
v.
SOUTHLAND CORPORATION & Joyce Pettway.
83-568.
Supreme Court of Alabama.
February 8, 1985.
*399 Roosevelt Simmons, Mobile, for appellant.
John N. Leach and Champ Lyons, Jr. of Coale, Helmsing, Lyons & Sims, Mobile, for appellees.
MADDOX, Justice.
This is a suit for malicious prosecution. The only issues presented are evidentiary.
On October 29, 1984, Carnell Davis was arrested on a charge of trespassing while picketing a Mobile Seven-Eleven store owned by Southland, Inc. A complaint for his arrest was sworn to by Joyce Pettway, the store manager. Davis was acquitted of the charge.
Subsequently, he brought suit for false arrest and malicious prosecution against Southland and Pettway. A directed verdict was granted defendants on the false arrest claim, and the malicious prosecution claim was tried before a jury, which found for the defendants. Davis's motion for new trial was denied.
Davis appeals here, contending that the trial judge committed reversible error by admitting evidence of: (1) Davis's prior arrest; (2) his child support obligations; and (3) his having been terminated from his employment with the Mobile County Personnel Board. We find no reversible error and affirm.
During trial Davis took the stand, and, during cross-examination, the following occurred:
Davis argues that evidence of his prior arrests was improperly admitted. He cites Bracy v. Sippial Electric Co., 379 So. 2d 582 (Ala.1980), for the proposition that, in civil cases, evidence of a party's character and reputation is generally inadmissible. He also cites Dean v. Johnston, 281 Ala. 602, 206 So. 2d 610 (1968), and Meador v. State, 37 Ala.App. 573, 72 So. 2d 418 (1954), arguing that, while a prior conviction for a crime involving moral turpitude may be admitted to show a witness's credibility, the evidence elicited from him was inadmissible because it did not pertain to a crime of moral turpitude and was evidence only of an arrest, not a conviction.
Southland and Pettway counter by arguing that, although evidence of a party's character is generally inadmissible in civil cases, in an action for malicious prosecution or for false arrest in which the plaintiff alleges injury to his reputation, the plaintiff's bad general reputation is admissible in mitigation of damages. Key v. Dozier, 252 Ala. 631, 42 So. 2d 254 (1949), C. Gamble, McElroy's Alabama Evidence, § 38.02 (3d ed. 1977). They also argue that, in a case of this nature, evidence of the plaintiff's prior arrests is admissible to show that, in the light of the previous arrests, there was no serious injury to his reputation. Long v. Mann, 259 Ala. 17, 65 So. 2d 500 (1953).
We agree with Southland and Pettway. As this Court stated in Long, supra:
It is undisputed that Davis had been arrested twice previously and that he now claims that the arrest for which he presently seeks damages injured his reputation. Considering this, we see no distinction between the present case and Long, supra. Consequently, we follow the principles of law set out in that case and hold the evidence of plaintiff's prior arrests to have been properly admitted.
Davis's argument that the evidence was inadmissible because it only proved prior arrests, not convictions, is not persuasive. The opinion in Long, although referring to "convictions," nevertheless appears to stand for the proposition that, in *401 these narrow circumstances, evidence of prior trials or arrests is admissible, even though they did not result in a conviction. In any event, the above cited portion of the record concerning the prior arrests clearly shows that Davis admitted paying the fines incident to his previous arrests. It is axiomatic that the payment of a fine in a criminal case is evidence of a conviction. Therefore, any error in admission of the prior arrests was rendered harmless by the subsequent admission of evidence that Davis paid the fines resulting therefrom.
Furthermore, we also note that any error in the admission of Davis's prior arrests and convictions was not properly preserved for appeal because no specific objection was made. It is generally recognized that, in order to preserve an error for appeal, a specific objection, rather than a general objection, must be made. C. Gamble, McElroy's Alabama Evidence, § 426.01(7) (3rd ed. 1977). This requirement has been incorporated in Rule 46, Ala.R.Civ.P., which provides, in pertinent part:
This Court has frequently refused to consider an objection where it was not accompanied by specific grounds. Crawford Coal Co. v. Stephens, 382 So. 2d 536 (Ala. 1980); Granberry v. Gilbert, 276 Ala. 486, 163 So. 2d 641 (1964); Tankersley v. Webb, 263 Ala. 234, 82 So. 2d 259 (1955). Although a specific objection is unnecessary where the evidence is patently inadmissible, Crawford Coal Co., supra, such is not the case here. Even though our courts of appeals have previously held that no specific objection is needed where irrelevant evidence of prior arrests is admitted, Rogers v. State, 34 Ala.App. 617, 42 So. 2d 642, cert. denied, 252 Ala. 670, 42 So. 2d 643 (1949); Anderson v. State, 354 So. 2d 1156 (Ala.Cr.App.), cert. denied, 354 So. 2d 1161 (Ala.1977), those cases are easily distinguishable from the present action. They were not malicious prosecution actions in which the plaintiff made injury to his reputation an issue. The case sub judice is such an action, and, as stated above, prior arrests are admissible on the issue of damages. Therefore, the evidence of Davis's prior arrests was not patently inadmissible, and a specific objection should have been made.
Davis, likewise, failed to raise a specific objection to the admission of evidence of his court-ordered child support payments. We cannot say that this evidence was so patently inadmissible as to relieve Davis of his obligation to object. The cases in this area are clear that for evidence to be patently inadmissible, it must be illegal for any purpose and not capable of being made legal by other evidence or by otherwise framing the question. Satterwhite v. State, 364 So. 2d 359 (Ala.1978), C. Gamble, McElroy's Alabama Evidence, § 426.01(1) (3d ed. 1977). The present evidence could have been made admissible had Southland and Pettway been able to pursue it more fully. The record clearly shows that, in addition to eliciting answers about the support obligations, Southland and Pettway showed these obligations to be pursuant to a court order and attempted to show that, as a result of those obligations, Davis has made several court appearances. Considering that Davis alleges humiliation and injury to his reputation by being subject to the judicial process, this evidence would have been admissible to show that, in view of his many court appearances, Davis is hardened to the judicial process and, therefore, was not injured by the alleged abuse thereof. Thus, the child support payments and the judicial proceedings surrounding them were admissible in mitigation of damages. Long, supra.
As to evidence of Davis's dismissal, not only was the objection thereto *402 general, but it was also untimely. Timely objection is a condition precedent to raising an error on appeal. Where a timely objection to the admission of evidence is not made, the party wishing to exclude the evidence cannot be heard to complain. Sanford v. Sanford, 355 So. 2d 365 (Ala. 1978). In order to be timely, an objection to oral testimony must be made after the objectionable question is asked but before the objectionable answer is given. Error cannot be preserved (except in limited circumstances not applicable here) by an objection made after a responsive answer to the question posed is given. Lusk v. Wade, 259 Ala. 555, 67 So. 2d 805 (1953). The record shows that Davis was asked about his dismissal, that he admitted being dismissed, admitted the reason for his dismissal (unbecoming conduct and lack of truthfulness), and even attempted to explain away his dismissal; only then, some three pages of transcript after the question concerning his dismissal was initially asked, did the following occur:
There can be no doubt that Davis fully answered the earlier question without making an objection; therefore, the objection that was eventually raised was untimely. As a consequence, any error in the admission of the evidence of Davis's dismissal was, like the two previously alleged errors, not properly preserved for review by this Court. In any event, we think any error would have been harmless.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | February 8, 1985 |
c3c9d142-2d52-4155-add9-9eaab5b1a1ff | Welch v. Jones | 470 So. 2d 1103 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1103 (1985)
James C. WELCH
v.
Robert D. JONES and Shirley Jones.
83-193.
Supreme Court of Alabama.
February 22, 1985.
Rehearing Denied May 10, 1985.
*1104 Ronald G. Davenport and J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, for appellant.
C. Neal Pope and Paul D. Hermann of Pope, Hermann & Kellogg, Atlanta, Ga., and Sam E. Loftin, Phenix City, for appellees.
Stephen J. Pettit, Birmingham, for amicus curiae Alabama Defense Lawyers Association.
PER CURIAM.
Appellees' application for rehearing is granted. The original opinion is withdrawn, and the following opinion is substituted therefor.
This is an appeal from a judgment in two consolidated actions. Damages were recovered in each because of injuries suffered by Robert D. Jones from a fall while at work in the employ of James C. Welch Construction Company, a corporation. Mrs. Jone's action was for the loss of her husband's consortium.
The Joneses brought actions against United States Fidelity and Guaranty Company (USF & G), the workmen's compensation carrier; James C. Welch, president and owner of the corporate employer; and Swede Cornelius, the job superintendent. The counts charged the defendants with undertaking duties to make safety inspections and thereafter negligently failing to discover and correct or warn of the hazard that caused Mr. Jones's fall.
The claim against USF & G was dismissed on its motion for summary judgment. The remaining defendant denied negligence and alleged contributory negligence, assumption of risk, and statutory immunity from suit. After denial of numerous pretrial defense motions, the cases were tried to a jury, which returned a verdict in favor of Robert D. Jones in the amount of $800,000.00, and awarded Mrs. Jones $100,000.00. The trial court entered judgments on the verdicts and denied timely motions for J.N.O.V., a new trial, and remittiturs.
Defendant James C. Welch appeals from the final judgments and the denial of his post-trial motions.
Robert Jones was working as a carpenter for James C. Welch Construction Company on a project near Phenix City, Alabama, at the Chattahoochee Valley Community College on June 17, 1980, when he fell through an unbarricaded temporary sheet metal floor over an elevator shaft. He suffered fractures of a tibia, a vertebra, and a heel bone.
On appeal, Welch argues that Jones failed to prove Welch's assumption and breach of any duty to Jones with regard to his safety in the work place. A review of the trial transcript, however, reveals direct evidence to the contrary:
Transcript, pages 46-51.
Transcript, pages 104-107.
Transcript, pages 223-248.
Transcript, pages 249-270.
Transcript, pages 288-89.
Transcript, page 345.
Transcript, pages 372-397.
Transcript, pages 403-431.
Transcript, pages 437-441.
As the foregoing testimony plainly shows, Welch routinely received notification from USF & G's loss control representative of safety defects on Welch Construction Company jobs, which reports were sent specifically to Welch himself and not simply to the company. Welch frequently visited his jobsites and either directed that safety defects be cured at the time of his inspections or sent a memo to the job superintendent setting requirements regarding the defects that he had noted on his tour of the jobsite. Webb, of USF & G, testified that he dealt personally with Welch as the safety director for Welch Construction Company. Workers testified to the frequency of Welch's visits to the jobsites and the fact that Welch would go everywhere on a site during his inspections. Welch worked with the job superintendent, Cornelius, on the safety aspects of the CVCC project, but also dealt directly with the workmen when he noted an immediate safety violation. Welch himself testified as to his direct involvement in the safety of his employees on his jobs and that his job superintendents were designated as safety directors in architects' contracts because that was "what they expect to hear and this is what they accept." Further, testified Mr. Welch, his involvement with safety is common to all of his jobs.
We reemphasize that it is neither Mr. Welch's general superintendence over the CVCC construction project nor his overall role with regard to the jobsite that imposes upon him an individual duty of due care with respect to the safety of the instant plaintiff.
*1111 Fireman's Fund American Ins. Co. v. Coleman, 394 So. 2d 334, 347 (Ala.1980) (special concurring opinion of Jones, J.).
The record of the trial is replete with evidence that Welch, the third-party defendant pursuant to § 25-5-11, Code 1975, personally assumed the duty with regard to the plaintiff's safety at the very point where the accident in question occurred and that his breach of that duty proximately resulted in the plaintiff's injuries.
Finding no error in the trial judge's failure to grant the defendant's motion for directed verdict, we affirm the judgment appealed from.
APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES, SHORES, BEATTY and ADAMS, JJ., concur.
MADDOX and EMBRY, JJ., dissent.
MADDOX, Justice (Dissenting).
I concur in the result reached by the Court on original deliverance. Consequently, I would not grant rehearing; therefore, I respectfully dissent.
EMBRY, Justice (dissenting):
Swede Cornelius was the employer's superintendent on the jobsite and the corporate employee responsible for safety on that site. He was so designated at the preconstruction conference and in the contract documents. He controlled the day-to-day operations and reported to James C. Welch about twice each week. Cornelius was supervising his crew and overseeing subcontractors on the day of the accident.
James C. Welch is president and owner of James C. Welch Construction Company, Jones's employer. He visited the jobsite in question once or twice each week to coordinate with his superintendent and routinely received carbon copies of loss control reports from USF & G's safety inspectors.
He caused them to be forwarded to the respective responsible job superintendents, including Cornelius at this job, for action. If he happened upon an unsafe condition on a site, he called it to the attention of the superintendent, but his duties did not include responsibility for safety. Furthermore, he was not on the site on the day of the accident.
The dispositive issue in this appeal is: Did the trial court erroneously deny Welch's motion for a directed verdict for failure to show the existence of an actionable duty of care? I would answer this query in the affirmative and reverse and render.
Under the evidence in this case, Jones did not satisfy his burden to prove, with specificity, any duty of Welch owed to Jones, or assumed by Welch, and a breach of it out of which Jones's claim for recovery arose. See Clements v. Webster, 425 So. 2d 1058 (Ala.1982).
For the reasons stated, I would reverse the judgments below and here enter judgment in behalf of James C. Welch.
On Application for Second Rehearing
PER CURIAM.
This Court's original opinion reversed the judgment and remanded the cause for a new trial. On appellees' application for rehearing, the original opinion was withdrawn and the judgment was affirmed. On appellant's subsequent application for rehearing, his counsel, in a respectful and professional manner, earnestly insist that this Court, in affirming the judgment, addressed only the propriety of the "directed verdict" issue (the only issue addressed in the original opinion) and omitted any reference to the remaining issues presented for appellate review. We acknowledge that, because the decision of this Court on rehearing addressed the single issue of the propriety of denying the motion for directed verdict, which was the basis of the reversal in the original decision, it might appear that the Court did not consider the remaining issues.
*1112 This is not the case, and we have again studied the original briefs and after a painstaking review of the evidence of record and the cited authorities relative to each of the issues presented, we remain of the opinion that the judgment appealed from is due to be affirmed. One issue, howeverwhether the trial court erred in not ordering a new trial on the ground of newly discovered evidenceis deserving of our treatment.
In the instant case, appellant's newly discovered evidence is the alleged testimony of a co-worker of Robert Jones who spontaneously contacted appellant's counsel after trial. Concededly, the co-worker's testimony might tend to support appellant's defense of contributory negligence. But, for appellant to prevail on his motion for new trial based on newly discovered evidence, he must show that the evidence at issue:
Eastwood Lands, Inc. v. Walter Carlos Anderton, Inc., 412 So. 2d 247, 249 (Ala. 1982); Forest Investment Corporation v. Commercial Credit Corporation, 271 Ala. 8, 12, 122 So. 2d 131, 135 (1960).
Appellant undisputedly meets the first prerequisitethat the evidence must have been discovered since trial. Appellees do not argue that appellant discovered this witness and his testimony before or during trial. Appellees, however, do argue that appellant fails the second prerequisite that the evidence could not have been discovered with the exercise of due diligence before trial. According to appellees, if appellant had exercised due diligence in pretrial discovery, he would have discovered this witness and his testimony. The trial judge apparently agreed with appellees that appellant did not exercise due diligence, because he denied appellant's motion for a new trial.
The applicable standard of review is stated in Gilmer v. Salter, 285 Ala. 671, 676, 235 So. 2d 813, 817 (1970):
Although we agree that the issue of appellant's due diligence is a valid and close factual one, it is for this very reason that we cannot hold that the trial court abused its discretion in finding that the appellant failed to exercise due diligence in locating this witness and securing his testimony. Having failed to meet the prerequisites for the granting of a new trial upon newly discovered evidence, appellant is not entitled to the requested relief. We consider the affirmance previously entered in this case to be proper.
OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
MADDOX and EMBRY, JJ., dissent. | February 22, 1985 |
d5b9e8b6-ffdc-4a2f-a69c-204412f82bde | Gant v. Warr | 240 So. 2d 353 | N/A | Alabama | Alabama Supreme Court | 240 So. 2d 353 (1970)
John W. GANT
v.
Gene WARR.
8 Div. 393.
Supreme Court of Alabama.
October 8, 1970.
Campbell & Campbell, Scottsboro, for appellant.
Dawson, McGinty & Livingston, Scottsboro, for appellee.
PER CURIAM.
Appeal by complainant in equity seeking to enjoin respondent from engaging in the accounting business within an area set out in the partnership agreement contract. The amended demurrers to the bill specifically pointed out that the contract was void as being contrary to the provisions of § 22, Title 9, Code of Alabama, Recompiled 1958. The court sustained the demurrers to the bill and dismissed the complaint, reciting that the allegations are such that the same could not be amended "to make such contractual provision valid."
On December 5, 1963, John W. Gant, appellant, and Gene Warr entered into a partnership agreement to engage in the practice of public accounting, with Scottsboro, Alabama, as the principal place of business. A copy of the contract was attached to the bill of complaint, as Exhibit *354 A, and made a part thereof. Section Five of the contract reads as follows:
The decree of the court reads in part as follows:
"The complainant complains that the respondent, in violation of said Section Five, has opened an office for the practice of accounting in Scottsboro, Jackson County, Alabama, and is engaging in the accounting business and performing accounting services in the area prohibited by said contract. An injunction is sought prohibiting the respondent from engaging in the accounting business or performing any accounting services in said three counties. This is the only relief contained in the prayer of the bill except general relief.
"The demurrers of the respondent, among other grounds, attack the bill of complaint upon the grounds that said section five of the partnership agreement is void as being contrary to law, as being contrary to the provisions of Section 22, Title 9, Code of Alabama and for that it seeks to prohibit the exercise of a lawful profession.
"It almost goes without saying that the practice of accounting by a Certified Public Accountant is a profession, and the averments of the bill of complaint and the partnership agreement verify that such is a profession.
"The code sections in Title 9 that are pertinent to this decision are as follows:
"`22. Contract in restraint of trade, void.Every contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent, void.
"`23. Exceptions in favor of purchaser of good will and employer.One who sells the good will of a business may agree with the buyer, and one who is employed as an agent, servant, or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof, so long as the buyer or any person deriving title to the good will from him, and so long as such employer carries on a like business therein.
"`24. Exceptions in favor of partnership arrangements.Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same county, city or town where the partnership business has been transacted, or within a specified part thereof.'
"Thus, under Section 22, a specific covenant not to compete in a profession is void unless it is within the limited exceptions created by Sections 23 and 24. Does the partnership agreement in question fall within either of such exceptions?
"In Odess v. Taylor, 282 Ala. 389, 211 So. 2d 805, the Supreme Court of Alabama construed Section 23 as follows:
"`It is significant that the term "profession" is omitted in Section 23. Said section pertains to a "business" to an "agent, servant or employee" and to soliciting old "customers" of a former "employer."
*355 "`Having included "profession" in Section 22, and omitted this term in Section 23, an affirmative inference is created that the legislature did not intend to include professions in Section 23, such interpretation being aided by resort to the maxim "expressio unius est exclusio alterius." * * *
"`We hold that the lower court correctly found that Section 23 does not apply to covenants restraining the practice of a profession, and that such contracts are void under Section 22, supra.'
"It therefore appears that the exception in Section 23 does not apply to said section five of the agreement restraining the respondent from the practice of his profession. The complainant's case must therefore stand or fall upon Section 24.
"Section 24 must be carefully read, applying the same logic as was applied by the Supreme Court in the above quoted portion of the Odess case.
"It is significant that the term `profession' is omitted from Section 24. Said action pertains to a `similar business' where the `partnership business' has been transacted.
"Having included `profession' in Section 22, and omitted this term in Section 24, the same affirmative inference is created that the legislature did not intend to include professions in Section 24.
"In view of the holding in the Odess case, this court has no alternative but to hold that Sections 23 and 24 do not apply to section five of the partnership agreement and that section five is void under Section 22, supra. Since same is void, the respondent's demurrers are well taken. This cause must also be dismissed since the allegations of the complaint are such as could not be amended to make such contractural provision valid. Denson v. Foote, 273 Ala. 470, 142 So. 2d 877.
"The matter being fully understood by the Court, it is Ordered, Adjudged and Decreed by the Court as follows:
"1. That the respondent's demurrers to the complainant's bill of complaint and to the aspect thereof seeking a permanent injunction be, and the same are hereby, sustained.
"2. That the bill of complaint and this cause of action be hereby dismissed for the reasons heretofore stated in this decree.
"3. That the complainant is hereby taxed with all costs accrued herein, for the collection of which let execution, or other proper process, issue.
"4. That the register shall mail a copy of this decree to the solicitors of record in this cause.
"Done this the 16th day of October, 1969.
"Filed Oct. 17, 1969."
It appears that the sole question presented by this appeal is whether § 24 of Title 9 should be given the same construction that was given § 23 of Title 9 in Odess v. Taylor, 282 Ala. 389, 211 So. 2d 805.
These sections, as amended, appear without change as §§ 22, 23 and 24, Title 9, Code 1940.
We have upheld the general principle that "contracts restraining employment are looked upon with disfavor in modern law." Hill v. Rice, 259 Ala. 587, 67 So. 2d 789.
Also that statutes intended for public benefit are to be construed most favorably to the public. Employers Ins. Co. of Ala. v. Johnston, 238 Ala. 26, 189 So. 58.
Our holding in Odess v. Taylor, supra, is clearly applicable here. There can be no question that the practice of accounting by certified public accountants, as here, is a profession. Having included *356 "profession" in § 22, and omitted this term in § 24, the omission in § 24 of "professions" indicates an affirmative inference that the legislature did not intend to include professions in § 24, such interpretations being aided by resort to the maxim, "Expressio unius est exclusio alterius." The agreement not to compete is, therefore, void under the provisions of § 22, Title 9, supra.
We hold that the lower court correctly decided the issues presented. The decree is due to be affirmed.
The foregoing opinion was prepared by J. Edgar Bowron, Supernumerary Circuit Judge, and adopted by the Court as its opinion.
Affirmed.
SIMPSON, MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur. | October 8, 1970 |
43b88134-59f6-4256-82f5-60a6eb246967 | McCulley v. Stroud | 243 So. 2d 28 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 28 (1970)
James McCULLEY
v.
John STROUD d/b/a Bob's Dollar Store, et al.
1 Div. 628.
Supreme Court of Alabama.
December 17, 1970.
*30 John L. Lawler, M. A. Marsal and Howell, Johnston, Langford & Finkbohner, Mobile, for appellant.
Edward P. Turner, Jr., and Dennis Porter, Chatom, for appellee, Mildred Jordan.
Armbrecht, Jackson & DeMouy and Broox G. Holmes, Mobile, for appellee, John Stroud, d/b/a Bob's Dollar Store.
McCALL, Justice.
The plaintiff appeals from the trial court's judgment rendered against him.
The judgment granted the defendants' separate motions for a discontinuance of the cause on the ground that an amendment, filed to the complaint by the plaintiff, worked an entire change of party plaintiff. After consideration, the court ordered and adjudged that the cause be discontinued and dismissed. All costs of court were taxed against the plaintiff, for which execution was directed to issue. The case was submitted here on the foregoing action taken by the trial court, as well as on certain motions filed by the appellees in this court.
The appellee Stroud moves us to dismiss the appeal on the ground that the order appealed from is not such a final judgment as will support an appeal within the meaning of the statute, Tit. 7, § 754, Code of Alabama, 1940, which provides for appeals to the Supreme Court from final judgments. The judgment, entered by the trial court, discontinuing and dismissing the plaintiff's cause, taxing him with all the costs of court, and directing that execution issue against him, effectively put an end to the plaintiff's action. He could proceed no further with his case. This constituted not only an order of dismissal of the case, but also a final judgment against the plaintiff. In the case of Ex parte Hendree, 49 Ala. 360, this court held that when a cause is dismissed from the docket of a court, and a final judgment is rendered therein against one of the parties for the costs, then an appeal will lie from such judgment and mandamus is not an appropriate remedy. Davis v. McColloch, 191 Ala. 520, 522, 67 So. 701. See also Plunkett v. Dendy, 197 Ala. 262, 72 So. 525, wherein we likewise held that an appeal will lie from a trial court's order and judgment granting the defendant's motion for a discontinuance of the plaintiff's cause, taxing the plaintiff with the costs, and directing that execution issue. Appellee Stroud's motion to dismiss the appeal on the ground stated is therefore overruled.
Next, the appellee Stroud, moves the court to strike the transcript of the record and to dismiss the appeal, because the record fails to show that the circuit clerk approved the security for costs of appeal which was filed with him. In one manner, appeals may be shown by giving security for costs of the appeal to be approved by the clerk, Tit. 7, § 766(b), Code of Alabama, 1940.
In response to a petition filed by the appellant, this court granted a writ of special certiorari to perfect the record on appeal by requiring the circuit clerk to certify to this court the full or complete contents of the security for costs, filed with him in the cause. The purpose of the writ of special certiorari was to get into the record on appeal matter, which was proper to appear there, but which was not a part of the record that was filed in this court at the time when certified to by the clerk. Williams v. McConico, 25 Ala. 538.
Answering the writ, the circuit clerk certified that the written security for costs was approved by him on the same day that the bond was filed. There is no contradiction of his certified answer. Therefore, on authority of Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So. 2d 148, we hold that, on collateral attack and without more than presented here, we will give effect to the answer of the clerk as to what constitutes the record in the case. There is in the present case, as in Williams v. McConico, supra, no contest as to the facts which occurred with respect to the clerk's having approved the bond. Since the record, as *31 perfected and certified to, shows that a valid bond was, in fact, tendered to the clerk and approved by him, when it was filed, jurisdiction of this court attached as of that date, Maya Corporation v. Smith, 239 Ala. 470, 196 So. 125. Appellee Stroud's motion, attacking the sufficiency of the appeal bond, is therefore overruled.
This is an action at law and under Tit. 7, § 769, Code of Alabama, 1940, and Supreme Court Rule 37, Revised Rules of Practice in the Supreme Court, as amended, Appendix to Tit. 7, Code of Alabama, 1940, the appellant is required to file the transcript of the record in the office of the Clerk of the Supreme Court within sixty days after the transcript of the evidence has been established in the trial court, but subject to an extension of time.
No objections have been filed to the transcript of the evidence in this case, and no extensions of time for filing the transcript of the record have been requested, either of the trial court, or here. The judgment appealed from in this case was entered on August 18, 1969. The appellant filed security for the costs of the appeal on January 19, 1970. This dates the appeal as having been taken on that date. General Mutual Insurance Co. v. Ginn, 283 Ala. 470, 218 So. 2d 680; Ridgeway v. Lovelady, 268 Ala. 503, 108 So. 2d 459; Parker v. Bedwell, 243 Ala. 221, 8 So. 2d 893; Danley v. Danley, 263 Ala. 390, 82 So. 2d 534; Lloyd's of London v. Fidelity Securities Corporation, 39 Ala.App. 596, 105 So. 2d 728; Tit. 7, § 766(b), Code of Alabama, 1940. Meanwhile, at the appellant's request, the official court reporter had already prepared and filed the transcript of the evidence in the case with the circuit clerk, "early," on September 5, 1969. Subsequently, the court reporter certified on March 19, 1970, (the fifty-ninth day after the appeal had been taken on January 19, 1970) that she had refiled the transcript with the circuit clerk. The clerk marked the transcript "Filed 19th day March 1970 W. E. Miller Clerk 2:45 P.M." The transcript of the record was filed in the Supreme Court on May 13, 1970.
When no objections are filed to the transcript of the evidence, within the prescribed period of ten days after its filing with the clerk, it is conclusively presumed to be correct and becomes established as of the day when it was filed. Tit. 7, § 827 (1a), Recompiled Code of Alabama, 1958; Stevens v. Thompson, 279 Ala. 232, 184 So. 2d 140; Wanninger v. Lange, 268 Ala. 402, 405, 108 So. 2d 331; Hornbuckle v. State, 268 Ala. 347, 105 So. 2d 864. Here, as already stated no objections were filed, so the transcript of the evidence became established when it became effectively filed with the clerk. The question is: When is the transcript of evidence to be treated as being effectively filed where it has been deposited in the clerk's office before the appeal is perfected?
If the transcript of the evidence was filed with the clerk of the circuit court and established more than sixty days before the transcript of the record was filed in this court, the appellees' motions are due to be granted, Wanninger v. Lange, supra; Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381; Relf v. State, 267 Ala. 3, 99 So. 2d 216; West v. State, 39 Ala.App. 358, 101 So. 2d 638, cert. den. 267 Ala. 700, 101 So. 2d 640; Lane v. State, 38 Ala.App. 487, 87 So. 2d 668; Clark v. State, 38 Ala.App. 480, 87 So. 2d 669; Aaron v. State, 39 Ala.App. 84, 94 So. 2d 415; Burgess v. Exchange Leasing Corporation, 45 Ala.App. 374, 231 So. 2d 151; otherwise, they are to be denied.
In Bates v. Rentz, 262 Ala. 681, 81 So. 2d 349, the judgment was dated October 14, 1954, and the appeal was taken on January 15, 1955. The court reporter filed the transcript of the evidence "early" with his certificate that he had notified the attorneys of record of such filing on January 4, 1955. After the appeal was taken, there was no refiling of the transcript. Our examination of the record in the Bates case shows that it was filed in this court on February 9, 1955. Thus, the timeliness *32 of the filing of the record was not involved there, because the transcript of the evidence, in any event, had been established by being filed with the clerk within sixty days before the record was filed here. The question in the Bates case was the validity of the "early" filing of the transcript of the evidence with the circuit clerk. On this point the court said:
The court did not state the effective date of the filing of the transcript, but said that the filing was eleven days before the appeal was taken. We interpret this to mean that the filing occurred eleven days before it could have been effectively filed. No provision of law exists for a filing before an appeal is taken.
In Lloyd's of London v. Fidelity Securities Corporation, 39 Ala.App. 596, 105 So. 2d 728, judgment was entered on February 8, 1957, and security for costs, which dated the appeal, was not filed with the circuit clerk until August 2, 1957. The transcript of evidence however, was filed by the court reporter (with notice to counsel thereof) on May 16, 1957, an "early" filing. On August 2, 1957, the circuit clerk endorsed this transcript "Refiled August 2nd 1957." The transcript of record was filed in the Court of Appeals on October 1, 1957. This was on the sixtieth day after the appeal was taken. In this case the court said:
In Martin v. House of Carpets, Inc., 41 Ala.App. 460, 135 So. 2d 171, judgment was rendered in a law action on January 23, 1961. The appeal was taken June 6, 1961. The court reporter filed the transcript of the evidence with the circuit clerk on February 24, 1961, an "early" filing. While not shown in the opinion, the transcript of the record was filed in the Court of Appeals on August 1, 1961. This was on the fifty-sixth day from the day when the appeal was taken on June 6, 1961, but was more than five months from the "early" filing. There was no subsequent refiling of the transcript of the evidence after the appeal was taken. In this case the Court of Appeals said:
From these authorities, we conclude and reiterate that an "early" filing of the transcript of the evidence is (1) ineffectual to date the running of the period within which to file the transcript of the record in the appellate court, because such is a matter neither required or regulated by statute or court rule, and (2) such a filing will not vitiate an appeal, because it is not the purpose of the statute or the rule to penalize promptness on the part of the reporter or the appellant.
Without an extension of time, the court reporter's certified transcript of the evidence must be filed with the circuit clerk at any time within sixty days after the appeal is perfected. Tit. 7, §§ 827(1) & 827(4), Recompiled Code of 1958. Since the court reporter's filing of the transcript of the evidence with the clerk of the trial *33 court is not contemplated by law except in the event of an appeal, an "early" filing should not accelerate the time already allowed by the statutes for filing the transcript of the evidence with the circuit clerk and deny the appellant this period of time in appealing his case, because in Bates v. Rentz, supra, we said it is not the purpose of the statute or the rule (Tit. 7, §§ 827(1) & 827(4) and former Supreme Court Rule 48, Appendix to Tit. 7, Code of Alabama, 1940) to penalize promptness on the part of the reporter or the appellant. It is further our opinion under the statutes, Tit. 7, §§ 827(1) & 827(4), that when the court reporter refiled the transcript of the evidence after the appeal was perfected, and the same became established, such dated the running of the sixty days within which to file the transcript of the record. Therefore when the transcript of the record was filed in this court on May 13, 1970, it was not more than sixty days from March 19, 1970, when the court reporter filed the transcript of the evidence. This latter filing was also within sixty days from perfecting the appeal on January 19, 1970. The appellees' motions are therefore overruled.
On the question of the appellant's right to amend the complaint to correct the Christian name of the plaintiff-appellant so as to allege his true Christian name as Horace, rather than James, as it appears in the complaint, we are of the opinion that the trial court erred in discontinuing the cause on the ground that the amendment worked an entire change of party plaintiff. The amendment should have been allowed and the motions overruled.
The last amended complaint undertakes to allege a cause of action, with a particular factual background, in a plaintiff father, who claims damages for the alleged wrongful death of his minor son. The complaint avers that James Bryant McCulley, who died on October 8, 1965, was the minor three year old son of the plaintiff in the case, and that the deceased died as a proximate result of the defendants' concurring negligence, while in a store operated by the defendant Stroud, and located on premises owned by the defendant Jordan.
The appellant's attorney made and filed an affidavit that he had prepared the complaint for Horace McCulley, but had inadvertently made an error in the Christian name of the plaintiff which should have read Horace McCulley, instead of James McCulley, and that Horace McCulley is the only plaintiff in the cause.
In our opinion a consideration of the averments of the complaint, the testimony, and affidavit of the plaintiff's attorney, leads us to the conclusion that the right person is suing, to wit, the father of the deceased child, but that he is incorrectly named. These matters describe Horace Culley as the plaintiff in the case, and none other. Horace McCulley is the only person who possibly could be the plaintiff referred to in the complaint under the evidence and the affidavit. Neither the fact that there were two James D. McCulleys, living, when the action was filed, and one James Bryant McCulley, the deceased minor, then dead, nor the continuance of the action in the name of "James McCulley" for over two years is sufficient to overcome the inescapable conclusion that the attorney filing the action, brought it on behalf of Horace McCulley and not some person named "James McCulley" though he so named the plaintiff. It is well settled that in a proper case the appellate court should review the trial court on the sufficiency and correctness of its findings of fact. Fidelity Phenix Fire Insurance Co. of New York v. Raper, 242 Ala. 440, 6 So. 2d 513; Shaw v. Knight, 212 Ala. 356, 102 So. 701; United States Fidelity & Guaranty Co. v. Yielding Brothers Co. Department Stores, 225 Ala. 307, 143 So. 176. Undisputedly, none of the persons having the Christian name James, which appears only in the caption of the complaint, has or claims any such cause of action as described in the complaint, or had authorized any such cause of action to be filed, or had consulted any of the attorneys representing the plaintiff on the subject *34 of any such cause of action, while Horace had. None of the James McCulleys mentioned in the evidence, nor any person, other than Horace McCulley, fits the pattern of the plaintiff described. We conclude that this is an action brought, in fact, by the father of the deceased minor whose true Christian name is Horace, rather than one brought by some individual named James McCulley, even though three, or perhaps more, persons bearing the latter name had existed. Consequently, the proposed amendment does not in our opinion introduce a new party plaintiff, but corrects the Christian name of the person who had originally brought the action and relates back to this same original party plaintiff, by a different Christian name. Our holding conforms with the statute, permitting amendments, Tit. 7, § 239, Code of Alabama, 1940, as well as with the cases of Springer v. Sullivan, 218 Ala. 645, 119 So. 851; Davis v. Griffin, 225 Ala. 184, 142 So. 543; Hill v. Burton, 30 Ala.App. 594, 10 So. 2d 302; Crafts v. Sikes, 4 Gray 194, 64 Am.Dec. 62. The judgment of the trial court is therefore reversed and cause is remanded.
Reversed and remanded.
SIMPSON, HARWOOD, BLOODWORTH and MADDOX, JJ., concur. | December 17, 1970 |
48a93343-ee1c-48d4-8339-eb964590e038 | Blackmon v. State | 240 So. 2d 699 | N/A | Alabama | Alabama Supreme Court | 240 So. 2d 699 (1970)
In re Ralph BLACKMON and Jimmy Cox
v.
STATE. Ex parte Ralph Blackmon and Jimmy Cox.
5 Div. 908.
Supreme Court of Alabama.
November 5, 1970.
Paul J. Hooton, Hooton & Hooton, Roanoke, for petitioner.
MacDonald Gallion, Atty. Gen., opposed.
McCALL, Justice.
Petition of Ralph Blackmon and Jimmy Cox for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Blackmon v. State, 46 Ala.App. 274, 240 So. 2d 696 (5 Div. 5).
Writ denied.
SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH and MADDOX, JJ., concur. | November 5, 1970 |
f161abc1-8601-4de5-b046-464e2fd46cf0 | Lewis v. State | 463 So. 2d 154 | N/A | Alabama | Alabama Supreme Court | 463 So. 2d 154 (1985)
Jim LEWIS, et al.
v.
STATE of Alabama, et al.
82-1271.
Supreme Court of Alabama.
January 25, 1985.
*155 Charles A. Dauphin of Baxley, Beck, Dillard & Dauphin, Birmingham, for appellants.
Charles A. Graddick, Atty. Gen. and Michael A. Bownes, Asst. Atty. Gen., for appellees.
MADDOX, Justice.
This is an appeal from a judgment in a suit brought under the Alabama Deceptive Trade Practices Act, Code 1975, § 8-19-1, et seq. We find the appeal to be untimely and dismiss.
The following facts are pertinent: On December 10, 1981, the State of Alabama brought suit against Jim Lewis, doing business as Job Information Directory and National Job Directory, and others who were operating a "job information service" in several Alabama cities. The state's complaint was brought under the Deceptive Trade Practices Act, Act No. 81-355, Acts 1981, now codified at Code 1975, § 8-19-1 et seq., naming several plaintiffs for whom the state acted in a representative capacity. A temporary restraining order and, subsequently, a preliminary injunction were issued prohibiting defendants from advertising or soliciting customers in Alabama and from removing assets from Alabama. Thereafter, the state amended its complaint to include approximately 3,000 of defendants' customers as additional plaintiffs and moved for summary judgment. On November 24, 1982, summary judgment was granted ordering defendants to pay damages to all plaintiffs. The state then moved to amend the judgment to include revocation of defendants' business licenses, a $2,000 fine, and attorney's fees. The defendants moved for reconsideration. On January 18, 1983, the court made a minor amendment to its November 24th summary judgment, but reserved its ruling on the license, fine, and attorney's fees issues until a later date. On March 22, 1983, defendants requested that the court certify its summary judgment as final, pursuant to Rule 54(b), Ala.R.Civ.P., indicating that they wished to take an appeal from that judgment. On April 15, 1983, the court entered the requested 54(b) order. On May 25, 1983, the defendants filed a "Motion for Clarification," to which the state objected, arguing that such a motion could only have been made within 30 days of the date the summary judgment was certified as final. On July 28, 1983, the court entered an order clarifying, but in no way amending, its earlier judgment as previously modified. On September 6, 1983, defendants filed notice of appeal with this Court.
The timely filing of a notice of appeal is a jurisdictional act. Snowden v. United Steelworkers of America, 435 So. 2d 62 (Ala.1983). It is the duty of this Court to take notice of the filing date of an appeal and, if finding the appeal to be untimely, to dismiss it ex mero motu. Stewart v. Younger, 375 So. 2d 428 (Ala. 1979). Notice of appeal must normally be filed within 42 days of the date of entry of the judgment. Branson v. Moore Group, Inc., 439 So. 2d 116 (Ala.1983). A judgment certified by a trial court pursuant to Rule 54(b) is a final appealable judgment; the certification triggers the running of the 42-day appeal period. Posey v. Prudential *156 Insurance Co. of America, 383 So. 2d 849 (Ala.Civ.App.), cert. denied, 383 So. 2d 851 (Ala.1980).
While the appeal period is tolled where a post-trial motion is filed pursuant to Rules 50, 52, 55, and 59, Ala.R.Civ.P.see Rule 4(a)(3), Ala.R.App.P., Hayden v. Harris, 437 So. 2d 1283 (Ala.1983)such a motion must be timely, because the untimely filing of a post-trial motion does not toll the running of the 42-day appeal period. City of Talladega v. McRae, 375 So. 2d 429 (Ala.1979). In order to be timely, a post-trial motion under any of these rules must be filed not later than 30 days after the entry of a final judgment. Rules 50(b), 52(b), 55(c), and 59(b), Ala.R.Civ.P.
In the present case, the 42-day period for taking an appeal began to run on April 15, 1983, the day the trial court certified its summary judgment as final pursuant to 54(b). Posey, supra. Even assuming that defendants' May 25, 1983, motion entitled "Motion for Clarification" was actually a post-trial motion as anticipated by Rule 4(a)(3), Ala.R.App.P., defendants' motion was filed more than 30 days from the entry of the final judgment on April 15. Therefore, defendants' motion would have been untimely and would not have tolled the running of the appeal period. Consequently, defendants' September 6, 1983, notice of appeal, coming almost five months after the summary judgment was certified, was untimely. Thus, the appeal must be dismissed.
APPEAL DISMISSED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | January 25, 1985 |
620b6794-6667-43f8-97c7-42b97db23346 | Walker v. Wilson | 469 So. 2d 580 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 580 (1985)
Mae M. (Thomas) WALKER, alias Patricia Walker
v.
James C. WILSON.
83-1241.
Supreme Court of Alabama.
April 12, 1985.
*581 Hugh C. Henderson, Birmingham, and William Justice, Columbiana, for appellant.
James N. Walter, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal by Mae (Thomas) Walker, from a summary judgment entered by the Circuit Court of Jefferson County against her and in favor of James C. Wilson. Wilson filed suit to quiet title in some property in June 1983, naming Walker as defendant.
The undisputed facts of this case are as follows:
On August 5, 1968, Ancel Bennett Swindall and Betty Swindall, by warranty deed, transferred to appellant, Mae (Thomas) Walker, the following real property:
The warranty deed, however, was not recorded in the office of the Jefferson County Judge of Probate until April 5, 1972. In consideration of her indebtedness to the Swindalls, Walker executed a mortgage on the property in favor of the Swindalls. This mortgage was executed on the same day as the warranty deed from the Swindalls to Walker (August 5, 1968), and was recorded in the probate office on October 3, 1972.
On May 2, 1970, appellant and her then-husband, Henry J. Thomas, executed a mortgage on the property in favor of Southern Cross Discount Company, Inc. (SCDC) to finance the purchase of aluminum siding. This mortgage was recorded in the probate office on May 25, 1970. No representative of SCDC inquired of appellant or her husband about their source of title to the property, or if the Swindalls then, or at any time in the past, had an interest in the property.
On May 5, 1970, SCDC transferred and assigned this mortgage to North American Acceptance Corporation (NAAC), which recorded the instrument on May 25, 1970.
Walker defaulted on her mortgage to the Swindalls, and, as a consequence the mortgage was foreclosed by the Swindalls on November 8, 1972, and the foreclosure deed was recorded in the probate office the next day. Walker also defaulted on her mortgage held by NAAC, and that mortgage was foreclosed by NAAC on January 3, 1973. The foreclosure deed for this transaction was recorded on January 5, 1973.
After some discussions between Walker and NAAC concerning Walker's desire to repurchase the property, NAAC executed a quitclaim deed to the property in favor of Walker on May 2, 1977. This quitclaim deed was recorded on October 5, 1978.
The Swindalls conveyed title to the property to appellee, James C. Wilson, by warranty deed dated September 17, 1982, which was recorded in the probate office that same day. At the time the action was filed, Wilson was in peaceable possession of the property, and has remained in possession of the property.
Based upon the facts as stipulated by the parties, and the legal arguments of counsel, *582 the trial court entered summary judgment in favor of James C. Wilson on April 10, 1984. In its summary judgment, the trial court found that Mae (Thomas) Walker "has no right, title, interest, claim or encumbrance in or upon the real property." Walker subsequently appealed.
The first question to be answered in this case is whether this case was one subject to summary judgment. We are of the opinion that it was. When the facts of a case are undisputed, as they are here, and the court's judgment is based solely upon a legal interpretation or conclusion, then the court may grant summary judgment. Studdard v. South Central Bell Telephone Co., 356 So. 2d 139 (Ala.1978).
After establishing that this case is one in which summary judgment should have been granted, we focus our attention on determining from the undisputed facts the legal owner of the property.
Section 35-4-90, Code 1975, known as the Recording Act, provides in pertinent part:
Appellant argues that, according to the Recording Act, since the second mortgage was recorded before the first, and since SCDC had no notice of the Swindalls' mortgage, SCDC conveyed clear title in the property to NAAC. The general rule is that a person having notice of a previous claim or interest in the land may purchase from a bona fide purchaser and receive good title. Reeder v. Cox, 218 Ala. 182, 118 So. 338 (1928). Therefore, appellant argues, by virtue of the Recording Act and the above-cited language, she now has title to the property free and clear of any claims or interests. This analysis must fail for two reasons.
First, SCDC was not a bona fide mortgagee because it had constructive or inquiry notice of the mortgage Walker gave to the Swindalls. This is so because Walker did not record her deed from the Swindalls until April 5, 1972. Therefore, Swindall, not Walker, was the record title holder when Walker gave SCDC a mortgage. SCDC may not simply take Walker's word that she held title to the property, Dewyer v. Dover, 222 Ala. 543, 133 So. 581 (1931); rather SCDC is presumed to have examined the title records and knowledge of the contents of those records is imputed to it. J.H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So. 2d 831 (1968). SCDC apparently did not search the title records, because, according to the stipulated facts, SCDC made no inquiry of Walker concerning any interest Swindall had in the property. Such a search is not required for notice to be presumed. "A grantee, including a mortgagee, has notice of what appears in the chain of title of his grantor or mortgagor." Bank of Hartford v. Buffalow, 217 Ala. 583, 584, 117 So. 183, 185 (1928).
Since SCDC did not qualify as a bona fide mortgagee under the Recording Act, NAAC, as assignee of SCDC, likewise is prohibited from such status. Therefore, Walker may not defeat the Swindalls' mortgage by claiming to be a purchaser from a bona fide mortgagee without notice.
Another reason why Walker cannot prevail is found in the exception to the rule she relies on for support. The rule, stated in Jefferson County v. Mosley, 284 Ala. 593, 598, 226 So. 2d 652, 656 (1969), reads: "[I]f a second purchaser with notice acquires title from a first purchaser who was without notice and bona fide, he succeeds to all the rights of his immediate grantor." However, the Court went on to say: "The exception to that rule is that such a title cannot be conveyed, free from prior equities, back to a former owner who was charged with notice." Jefferson County v. Mosley, 284 Ala. at 598, 226 So. 2d at 656.
*583 This is exactly what Walker tried to accomplish. Therefore, even if Walker succeeded in having SCDC declared to be a bona fide mortgagee, she still must fail in her attempt to gain title to the property.
For the above-stated reasons, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | April 12, 1985 |
adccd8a8-033a-442b-94f6-e7a6829f0e2d | Cole v. Racetrac Petroleum, Inc. | 466 So. 2d 93 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 93 (1985)
Wayne COLE and Betty Cole
v.
RACETRAC PETROLEUM, INC., a Corp.
83-603.
Supreme Court of Alabama.
February 15, 1985.
*94 Nelson Vinson of Vinson & Guyton, Hamilton, for appellants.
Bill Fite, Hamilton, for appellee.
ADAMS, Justice.
This is an appeal from a judgment entered in an ejectment suit filed by Wayne and Betty Cole. The Circuit Court of Marion County, Alabama, ruled against the Coles and in favor of Racetrac Petroleum, Inc.
The facts of this case are undisputed by the parties, and are set forth below.
Clyde and Louise Lacy purchased the 1.46 acres of land involved in this action on June 3, 1971. Shortly thereafter, Clyde Lacy erected a house on the land, which he and his wife Louise used as their dwelling. On August 21, 1972, Clyde Lacy leased a .32-acre portion of the 1.46 acres, along with the filling station he had built on the property, to The Oil Well Company, Inc.,[1] for ten years, with the lease period to begin on October 21, 1972, and end on October 20, 1982. As part of the agreement, The Oil Well Company had the option at the end of the lease to extend the lease for ten more years, ending October 20, 1992. Louise Lacy did not sign the lease agreement. The lease, which required a rent payment of $125.00 monthly to the lessor, was recorded in the Probate Judge's office on August 29, 1972.
Racetrac paid Lacy $125.00 per month for rent of the property until January 26, 1973. On this date, Clyde Lacy and Louise Lacy sold their 1.46 acres, including the .32 acres, to the appellants, Wayne and Betty Cole. The deed of conveyance from the Lacys to the Coles refers to the August 21, 1972, lease, stating: "The above-described lands are SUBJECT TO a lease in favor of The Oil Well Company, Inc., executed by Clyde Lacy dated August 21, 1972."
For a period of nine years and nine months, Racetrac paid the monthly rent of $125.00 to the Coles pursuant to the lease. The Coles accepted each of these payments. Then, on September 28, 1982, Racetrac exercised its option and renewed the lease dated August 21, 1972, for an additional ten years beginning October 21, 1982, and ending October 20, 1992. After receiving the notice from Racetrac of its intention to renew the lease, the Coles requested that Racetrac vacate the premises on or before November 21, 1982, unless or until a new lease was executed.
The parties stipulated that Racetrac has made all the monthly rental payments in conformance with the August 21, 1972, lease. Two of these payments, those for October and November of 1982, were returned to Racetrac by Betty Cole. Racetrac has continued to send its payments each month to the Coles, who have kept the checks but have not cashed any of them.
On November 30, 1982, Wayne and Betty Cole filed an ejectment action against Racetrac in order to regain possession of the property. After considering the pleadings and testimony of the witnesses, the trial court found that Racetrac was lawfully in possession of the .32-acre tract of land, and would continue to be until the lease expired on October 20, 1992. On November 3, 1983, the Coles filed a timely motion to set aside the decree and enter a decree in their favor. The trial court never ruled on the motin. This appeal followed.
The dispositive issue on appeal is whether the trial court erred in finding that Racetrac has a valid lease on the land until *95 October 20, 1992. We hold that the court did not so err; the judgment appealed from is affirmed.
In its decree, the trial court found that Racetrac has a valid lease on the .32 acres until October 20, 1992, "according to the terms of the lease dated August 21, 1972." In addition, the court found "that the plaintiffs and defendant are bound by all the terms and conditions of said lease agreement dated August 21, 1972." The trial court did not set forth in its decree how it reached its conclusion; however, we are bound to sustain the judgment if there is a valid basis to do so.
Appellants argue that the homestead law of Alabama was not complied with. The Coles maintain that since the 1.46 acres of land that was purchased from Clyde and Louise Lacy was their homestead, any lease concerning the property must have been signed by both spouses or it was void, or at least voidable, at the time of its execution. This Court addressed the issue of the alienation of homestead property in Inman v. Goodson, 394 So. 2d 915 (Ala. 1981), and stated:
394 So. 2d at 917; quoting Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742 (1916). The Court went on to say:
Inman v. Goodson, 394 So. 2d at 918 (Ala. 1981).
After Clyde Lacy leased the .32-acre portion of the 1.46 acres, the home and land remaining easily exceeded the $2,000 statutory limit. Therefore, the lease agreement signed only by Clyde Lacy and not Louise did not violate the homestead requirements.
Appellants also claim that, since there is nothing in writing from Louise Lacy concerning her undivided one-half interest in the property, her interest has never been leased. They seem to be arguing that Louise Lacy somehow dissented from the leasing of the .32-acre tract by her husband, and that the lease cannot be upheld by the court because she never intended for her interest in the property to be leased. The evidence presented at trial, however, does not support this position. To the contrary, the evidence at trial, together with the reasonable inferences the judge could have drawn therefrom, shows that Louise Lacy ratified the lease through her actions subsequent to its execution.[2] Appellants did not offer any proof that even suggested that Louise Lacy desired to invalidate the transaction, or that she took any action whatsoever to avoid the lease. Rather, she affirmatively ratified the lease when she joined with her husband and deeded the entire 1.46 acres, including the lease and all the rights and benefits thereunder, to the Coles in January of 1973. Her failure to object to the execution of the lease, coupled with her subsequent consent to transfer the 1.46 acres of land, along *96 with the lease, evince Louise Lacy's approval of the August 21, 1972, lease.
Not only did Louise Lacy's conduct support the trial court's decree, but the Coles also acted in a manner consistent with the court's conclusion.
Cochran v. Cochran, 247 Ala. 588, 25 So. 2d 693 (1946). Such is the case with Wayne and Betty Cole. From January 26, 1973, until October 1982, the Coles never complained that the lease was invalid without Louise Lacy's signature. For almost ten years, pursuant to the terms of the lease dated August 21, 1972, the Coles accepted monthly rental payments from Racetrac. Naturally, Racetrac was led to believe that it was operating under a valid lease. The Coles have received the benefits under the lease since January 1973, and may not now, for the first time, claim that the lease is invalid. To allow the Coles to succeed would do an injustice to Racetrac, which has followed the terms of the lease for almost ten years. We cannot allow this to happen.
For the above-stated reasons, the judgment of the trial court is due to be, and hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur.
[1] The Oil Well Company is the predecessor to Racetrac Petroleum, Inc.
[2] "Ratification. In a broad sense, the confirmation of a previous act done either by the party himself or by another; as, confirmation of a voidable act.... The adoption by one, as binding upon himself, of an act done in such relations that he may claim it as done for his benefit, although done under such circumstances as would not bind him except for his subsequent assent. It is equivalent to a previous authorization and relates back to time when act ratified was done, except where intervening rights of third persons are concerned." Black's Law Dictionary, 1135 (rev. 5th ed. 1979). | February 15, 1985 |
93ac2d85-849a-44eb-bdc4-0f662a99ec7c | Allstate Ins. Co., Inc. v. Shirah | 466 So. 2d 940 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 940 (1985)
ALLSTATE INSURANCE COMPANY, INC.
v.
Daniel L. SHIRAH.
83-942.
Supreme Court of Alabama.
March 1, 1985.
*941 Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellant.
J. Earl Smith, Dothan, for appellee.
TORBERT, Chief Justice.
This is an appeal from a declaratory judgment action brought by appellant, Allstate Insurance Company, Inc. (Allstate), to determine the rights and liabilities of the parties under an automobile insurance policy issued by Allstate to appellee, Daniel L. Shirah. The trial court held that Allstate was required to defend Shirah against an action filed by Fred Fellows and Lynda Fellows and to pay all sums that Shirah might become legally obligated to pay under the terms of the policy. We affirm.
On July 20, 1979, Shirah, accompanied by his parents, visited the office of the Allstate agent in Enterprise, Alabama, where Shirah made application for automobile insurance. The application process consisted of the agent's asking Shirah specific questions and then recording Shirah's answers on an application form. The application was then processed and approved. The policy became effective as of the date of application and remained effective for approximately three years, until 1982, when the events which precipitated this action took place.
*942 On the night of April 26, 1982, Shirah went to a nightclub in Dothan, Alabama, and had several drinks. He left the club sometime after 10:30 p.m. Shortly before midnight, Officer Fred Williams of the Dothan Police Department observed a car slide to a stop in the left turn lane of Ross Clark Circle eastbound, where it intersects U.S. Highway 231. Officer Williams identified the driver of the car as Shirah. The car proceeded straight, instead of making a left turn, and accelerated rapidly. Officer Williams began pursuit and followed the car, which continued east on Ross Clark Circle. Officer Williams observed the car run a red light at the next intersection; cross over into the westbound, on-coming lane of traffic and travel approximately 200 yards; enter a shopping center parking lot, make a 360-degree turn, exit the parking lot onto Denton Road, and proceed north.
In response to a radio dispatch originating with Officer Williams, Officer Ronald Black and Officer Fred Fellows began traveling south on Denton Road. Officer Black's unmarked police car was in the lead. Upon sighting the headlights of Shirah's car, Officer Black, in an attempt to establish a "rolling roadblock," wherein his car would be in front of Shirah's car and headed in the same direction, made a sharp turn to the left across the northbound lane of Denton Road. Unfortunately, Officer Black's car stalled during the turn and blocked the northbound lane. Officer Fellows, a short distance behind Officer Black, also began a turn; however, his car remained in the southbound lane. Shirah, upon reaching Officer Black's car, swerved his car into the southbound lane. Shirah avoided hitting Officer Black's car, but, collided with Officer Fellows's car. Officer Black testified that the time lapse between Shirah's passing his car and striking Officer Fellows's car was less than one second.
Subsequent to the accident, Officer Fellows and his wife Lynda filed an action against Shirah for damages for injuries sustained by Officer Fellows. Moreover, Allstate discovered that Shirah, prior to making his application for insurance, had twice been convicted for driving under the influence of alcohol (DUI), once in 1975 and again in 1979. Neither conviction appeared on the insurance application form. Allstate cancelled Shirah's policy and initiated the declaratory judgment proceedings.
A trial was held and the testimony was presented ore tenus. Allstate raised two issues:
I. Whether the policy of insurance issued to Shirah was voidable because of misrepresentations in the application.
II. Whether the injuries inflicted upon Officer Fellows by Shirah were the result of an intentional act on the part of Shirah and thus not within the coverage of Shirah's insurance policy.
Following the conclusion of the trial, the trial court issued the following order with findings and conclusions:
On appeal Allstate raises the same issues it raised at trial.
Allstate argues that Shirah's failure to disclose his two DUI convictions was a misrepresentation under Code 1975, § 27-14-7, sufficient to avoid the policy. Section 27-14-7 provides in pertinent part:
In its brief, Allstate contends that Shirah "failed and refused to reveal his convictions [for DUI] ... with the intent to defraud the insurance company," and further that even in the absence of inquiry Shirah was under an affirmative duty to disclose those convictions.
The only evidence which would support Allstate's allegation of an intentional misrepresentation was testimony by its agent that he specifically asked Shirah whether he had had any tickets or violations within the past five years and that Shirah answered that he had not. Shirah, however, testified that Allstate's agent did not make any inquiries with respect to prior accidents or traffic violations. Furthermore, Shirah's mother, who Allstate admits was present when Shirah made his application, also testified that the agent did not ask Shirah about his driving record. On the basis of this testimony, the trial court concluded that it was not reasonably satisfied that Shirah had made a misrepresentation in that it was not reasonably satisfied that Shirah had in fact been asked about his driving record.
In those cases where the trial court makes findings of fact after the evidence has been presented ore tenus and the trial court has had the advantage of observing the demeanor of the witnesses, a presumption of correctness attends the findings of the trial court and those findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. Chaffin v. Hall, 439 So. 2d 67 (Ala.1983); Securitronics of America v. Bruno's, Inc., 414 So. 2d 950 (Ala.1982).
We recognize that an applicant's intentional misrepresentation of a material fact, which is relied upon by the insurer, permits the insurer to avoid the policy, Bankers Life & Cas. Co. v. Long, 345 So. 2d 1321 (Ala.1977); however, on the record before us, the issue of Shirah's misrepresentation is not free from doubt. Indeed, the testimony on that issue is in direct conflict. The trial court, sitting without a jury, was in a position to observe the demeanor of the witnesses and to evaluate the veracity of their testimony. In *944 light of the testimony that was given by Shirah and his mother, we cannot hold that the findings of the trial court were not supported by any evidence or any reasonable inference therefrom.
The general rule regarding the effect of an insurer's inquiry, or lack of inquiry, when taking applications for insurance has been stated thusly:
43 Am.Jur.2d Insurance § 1008, p. 1015 (1982). Likewise, 12A J. Appleman & J. Appleman, Insurance Law and Practice § 7276, p. 327, 330-32 (1981), states in part:
Applying the foregoing principles to the findings of the trial court, we cannot hold that the judgment of the trial court was palpably wrong or manifestly unjust.
Contrary to the position taken by Allstate, we cannot say that Shirah, even in the absence of specific inquiry, was under an affirmative duty to disclose the existence of his DUI convictions. The United States Supreme Court in Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 314, 48 S. Ct. 512, 513, 72 L. Ed. 895 (1928), conceded that the modern practice of requiring an applicant for insurance to answer questions prepared by the insurer had relaxed to some extent the traditional rule that failure by the insured to disclose facts affecting the risk, of which he was aware, made the insurance contract voidable at the insurer's option. The Supreme Court reasoned that information that was not asked for was presumably deemed immaterial. See, 9 G. Couch & R. Anderson, Couch Cyclopedia of Insurance Law § 38:72, p. 388, 389 (2d ed. 1962). Moreover, our own cases have stated that when parties are intelligent and deal at arm's length, with no confidential relations, there is no duty to disclose when information is not requested and that mere silence will not then constitute fraud. Ray v. Montgomery, 399 So. 2d 230, 232 (Ala. 1980); Collier v. Brown, 285 Ala. 40, 44, 228 So. 2d 800, 802 (1969); Mudd v. Lanier, 247 Ala. 363, 377, 24 So. 2d 550, 562 (1945).
Finally, we would add that courts in other jurisdictions have also been hesitant to find misrepresentation when information was not directly solicited. Thus, failure to mention a wife's terminal illness when obtaining insurance on her life, Uslife Credit Life Ins. Co. v. McAfee, 29 Wash. App. 574, 582, 630 P.2d 450, 455 (1981), failure to disclose previous collection of fire insurance when obtaining a fire insurance policy, Graham v. Aetna Ins. Co., 243 S.C. 108, 112-13, 132 S.E.2d 273, 275 (1963), and failure to disclose that an airplane lacked an airworthiness certificate, Stewart-Smith Haidinger, Inc. v. Avi-Truck, Inc., 682 P.2d 1108, 1116 (Alaska 1984), have been held not to rise to the levels of misrepresentation.
Allstate argues that the injuries received by Officer Fellows were the result of an intentional act by Shirah and therefore were not within the coverage of Shirah's insurance policy. The policy contained the following provision:
This standard form insurance policy exclusion is analogous to the exclusion provision that was at issue in Alabama Farm Bureau Mutual Casualty Ins. Co. v. Dyer, 454 So. 2d 921 (Ala.1984). In Dyer, we were asked to consider whether a provision that excluded coverage for "bodily injury or property damage which is either expected or intended from the standpoint of the [i]nsured" was applicable where the insured, Wayne Dyer, had shot and killed his brother William. In that case, the trial court, sitting without a jury, found that Wayne's shooting of his brother was neither "expected nor intended from the standpoint of the insured." Affirming the findings of the trial court, we first noted that the question of whether an injury inflicted by the insured upon another person was expected or intended was a question of fact for the jury or judge. 454 So. 2d at 924. We then held:
Id. at 925.
Unlike Dyer, where the trial court had to determine whether the insured either expected or intended the injuries that occurred, in the instant case, because of the language of the exclusion provision, the trial court had only to determine whether Shirah intentionally caused the injuries suffered by Officer Fellows. Despite the circumstances preceding the accident, the record indicates that there was sufficient evidence to support the trial court's finding that Shirah did not intentionally cause "any bodily injury or property damage." To recapitulate, the accident occurred at approximately midnight. Shirah was driving north in the northbound lane of Denton Road. Officer Black's unmarked police car had stalled and was sideways, blocking the northbound lane. Officer Fellows had begun to turn his car and was blocking the southbound lane. Upon reaching Officer Black's car, Shirah swerved his car into the southbound lane. Shirah avoided Officer Black's car, but collided with Officer Fellows's car. Officer Black testified that the time lapse between Shirah's passing his car and colliding with Officer Fellows's car was less than one second. Based upon all the evidence, we hold that the trial court could have reasonably concluded that Shirah's actions with regard to the accident that resulted in injury to Officer Fellows were not intended to cause Fellows's injury. The ore tenus presumption of correctness attaches to the trial court's findings.
On the basis of the foregoing analysis, the judgment of the trial court is hereby affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur. | March 1, 1985 |
64e6a6f0-77d5-4d09-9d0e-0c5146743d22 | Jolly v. Knopf | 463 So. 2d 150 | N/A | Alabama | Alabama Supreme Court | 463 So. 2d 150 (1985)
Helen Lugania Knopf JOLLY
v.
Carl KNOPF, et al.
83-232.
Supreme Court of Alabama.
January 11, 1985.
*151 Fred Blanton, Fultondale, for appellant.
Andrew M. Smith, Birmingham, for appellees.
SHORES, Justice.
The original opinion is withdrawn, and the following is substituted therefor.
Helen Jolly filed a complaint seeking a sale for division of four parcels of land owned by her and the six defendants as tenants in common. Mrs. Jolly alleged in the complaint that the real property could not be equitably divided or partitioned "and it would be to the interest of all of the said parties to sell said property for the purpose of division and distribution." The parties obtained their joint title under the will of their mother. Each received an undivided one-seventh interest in the parcels. The defendants moved to dismiss the action or, in the alternative, for summary judgment, on the grounds that the relief sought would defeat their mother's will, which expressly gave Carl Knopf, the executor and one of the defendants, "full power in his discretion... to sell ... without any order of court therefor any real or personal property belonging to [the] estate." This motion was denied.
The defendants answered and denied that the property could not be divided in kind. Their answer was followed by a notice to purchase Mrs. Jolly's interest in the property. The notice was in accordance with § 35-6-100, Ala. Code 1975 (1984 Supp.). This was followed by a "motion for Court to Provide for Purchase of Filing Joint Owner's Interest," which essentially repeated the earlier notice and, in addition, alleged that the defendants were ready, willing, and able to make the purchase. On the date of the hearing on the defendants' motion to purchase, Mrs. Jolly filed in open court a motion to strike the defendants' motion to purchase, contending that § 35-6-100 is unconstitutional. In her motion, Mrs. Jolly also gave notice that she desired to purchase the defendants' interest in the same property. The trial court granted the defendants' motion to purchase Mrs. Jolly's interest and denied Mrs. Jolly's motion to strike. It thereafter appointed three commissioners, who were ordered to determine the value of the four parcels. § 35-6-101, Ala. Code 1975 (1984 Supp.). This they did. The commissioner's report was filed with the trial court on August 12, 1983, and was set for hearing on September 30, 1983. Pursuant to § 35-6-102, Ala. Code 1975 (1984 Supp.), the defendants timely paid into the court the amount of the purchase price for Mrs. Jolly's interest. Plaintiff Jolly, having previously filed a motion to strike the defendants' motion to purchase, thereupon filed a certificate stating that she was ready, willing, and able to purchase the interests of the defendants in the property and filed a commitment by her bank in the amount of $30,000.
Thereafter, the trial court entered final judgment, transferring title to the defendants and divesting Mrs. Jolly of title to the parcels. Mrs. Jolly appeals.
Section 35-6-100 states:
Mrs. Jolly first contends that this section is unconstitutional because it denies her equal protection of the law by giving only the defendants the alternative relief of purchasing the interest of the other cotenants.
We note that direct constitutional challenges to this statute have been made before in Madison v. Lambert, 399 So. 2d 840 (Ala.1981), on second appeal, 428 So. 2d 25 (Ala.1983), and Gibbons v. Allen, 402 So. 2d 914 (Ala.1981). However, the challenges made in those two cases are distinguishable on the facts from the one made in the case before us.
In Madison, Lambert, a co-owner of jointly owned property, commenced an action for sale for division, and certain of the defendants, including Madison, filed a timely offer to purchase Lambert's interest in the property as well as the interests of all others seeking to sell, pursuant to § 35-6-100, supra. Lambert subsequently filed a motion to strike appellant's offer to purchase, alleging that § 35-6-100 violated the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In granting Lambert's motion to strike, the trial court held the section "patently unconstitutional" and issued a decree ordering a public auction for the sale of the property.
Lambert's argument that the statute deprived him of equal protection of the law by creating an arbitrary and capricious classification, in that defendants were preferred over plaintiffs, was rejected, and, in reversing the judgment of the trial court, this Court stated:
A careful reading of Madison indicates that the appellee, Lambert, was seeking to have the subject property sold for division at a public sale. There is no indication that Lambert desired to purchase any of the other co-owners' interests himself. Thus, the constitutional issues raised with regard to the statute and the corresponding rationale utilized by this Court in resolving those issues, were made solely within the context of plaintiff Lambert's wanting to have the property sold publicly. Therefore, the equal protection issue addressed in Madison could be stated thusly: Whether § 35-6-100 was an unconstitutional restriction on a plaintiff's statutory right to have a public sale for division of unpartible lands by preferring a co-owner defendant's right to purchase the plaintiff's interest over the plaintiff's right to insist on a public sale.
In Gibbons, the Court addressed the same issue. In that case, the trial court granted the plaintiff's and cross-plaintiff's motion to strike Gibbons's request to purchase. The plaintiffs alleged that § 35-6-100 was unconstitutional on the grounds of equal protection. The cross-plaintiffs alleged similar grounds, but also charged that the statute destroyed the rights of tenants in common, at their election, to a sale at public outcry to the highest and best bidder, or to a private sale in a free market. The trial court reasoned that there was an equal protection violation in that both the plaintiffs and defendants belonged to the same class, but were treated unequally in that the statute allowed only the defendants to purchase the property.
*153 In reversing the trial court's judgment in Gibbons, we spoke of the equal protection issue as follows:
It is important to note that in Gibbons, as in Madison, there was no indication that any co-owner other than the defendant sought to purchase the interests of any of the other co-owners. The holding in Gibbons is in harmony with the one in Madison, and we reaffirm the holdings in those cases.
In the present case, however, a different challenge to § 35-6-100 is asserted. In this case, Mrs. Jolly contends that the application of this section deprives her of equal protection of the law because it denies her the right to purchase the interests of the other co-tenants merely because she is the plaintiff in this action. We agree.
The legislative purpose of Act No. 79-334, Acts 1979, which includes § 35-6-100, is to afford protection to co-owners against other co-owners seeking an involuntary sale of the co-owned land for pro-rata distribution of the proceeds of sale. Madison v. Lambert, supra, at 843. The prior statutory provisions, § 35-6-20, Ala. Code 1975, prevented the efforts of non-consenting interest holders in partition proceedings to preserve estates. The new amendments to the partition statute, §§ 35-6-100 to-104, provide an option whereby non-consenting interest holders, upon compliance with a notice requirement, may purchase the interests of those seeking a sale for division, without offering the property to public bid. Ragland v. Walker, 387 So. 2d 184 (Ala. 1980). Section 35-6-100 and the other provisions of the act provide a procedural framework wherein the co-owners of a parcel of property, upon invoking § 35-6-100, may negotiate among themselves for the sale or purchase of each of their respective interests. Provision is also made for independent valuation and judicial supervision of the purchase and sale of these interests if the co-owners cannot agree on a price. § 35-6-100 to -104, Ala. Code 1975 (1984 Supp.)
The legislature may not prejudice or discriminate against a co-tenant of an unpartible parcel of land by denying him or her the opportunity to purchase the interests of the other co-tenants merely because he or she has initiated the proceeding by the filing of a complaint.
We hold that by not allowing one co-owner to be as much entitled to purchase as any of the other co-owners, regardless of their alignment as plaintiffs or defendants in an action for sale for division, the statute violates the equal protection provisions of the Constitution of this state, §§ 1, 6, and 22, Ala. Const. 1901, as well as the Constitution of the United States, Amendment 14.
We, therefore, find merit in Mrs. Jolly's argument that the statute treats equal members of a class of co-owners in an unequal manner, thus violating the equal protection provisions of the Constitutions of the United States and Alabama.
In this case, the defendant co-tenants properly filed a statutory notice of their desire to purchase the plaintiff co-tenant's interest in the property. The plaintiff co-tenant thereupon gave notice of her desire to purchase the interest of the defendant co-tenants. The trial court transferred to the defendants the plaintiff's interest when the defendants paid into court an amount equal to one-seventh of the total in payment of her share. Plaintiff Jolly responded by offering to purchase the six-sevenths interest of the six defendants at the appraised price. Under these circumstances, we must reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion. As we have consistently held, § 35-6-100 is designed to prevent co-tenants from being divested of their ownership rights in real property by a sale for division. The co-tenant defendants here followed the statutory procedure designed for that purpose. The *154 plaintiff co-tenant cannot be denied equal participation in the statutory scheme. She has a right to participate in the statutory "private sale."
The cause is remanded, and the trial court is directed to allow each of the seven co-owners of the land a right to purchase the interests of the others at such price as the others are willing to sell and the buyer is willing to pay.
REVERSED AND REMANDED.
All the Justices concur, except TORBERT, C.J., who concurs specially.
TORBERT, Chief Justice (concurring specially).
I concur; however, I write to make two observations. First, the Court must engraft a bidding procedure into the statute in order to make the application of Code 1975, § 35-6-100 (1984 Supp.), constitutional.
Section 35-6-100 was intended to preserve family estates by preventing title from passing to a stranger, Ragland v. Walker, 387 So. 2d 184 (Ala.1980); however, the statute's applicability cannot be limited solely to family situations because the statute applies to any property held by "joint owners or tenants in common." Scott Paper Co. v. Griffin, 409 So. 2d 1375, 1381 (Ala.1982).
This new bidding procedure will increase the likelihood that a stranger will acquire family property. Prior to this opinion, a stranger could purchase undivided interests in family property and then file a petition for sale for division; however, he could not buy out the family owners if they were willing to pay the appraised value of the stranger's share. In other words, a stranger could not force family members out of the estate merely by competitive bidding. Now, a stranger can buy shares of an estate, file a petition for sale for division, and buy the remainder of the estate by being the highest bidder as against family owners.
However, family estates are still somewhat protected from strangers by this holding, when the provisions of § 35-6-100 are utilized, in that the bidding among co-tenants will be private rather than public. | January 11, 1985 |
db87a1a5-2f3c-4146-b915-2d684196e0d4 | Stephenson v. Westbrook | 244 So. 2d 569 | N/A | Alabama | Alabama Supreme Court | 244 So. 2d 569 (1970)
Irene B. STEPHENSON
v.
Mary L. WESTBROOK and Provident Life and Accident Insurance Company, a Corporation.
6 Div. 787.
Supreme Court of Alabama.
December 23, 1970.
Rehearing Denied March 4, 1971.
Francis H. Hare, Jr., and James J. Thompson, Jr., Birmingham, for appellant.
McCollough & McCollough, Birmingham, for Mary L. Westbrook.
A. W. Jones, Birmingham, for Provident Life and Accident Insurance Co.
HARWOOD, Justice.
The Provident Life and Accident Insurance Company filed a bill in equity in the nature of interpleader.
Mary L. Westbrook and Irene B. Stephenson were named as respondents.
The bill asserted that Provident in 1950 had issued to Joseph S. Westbrook, Jr., a certificate of insurance under a group insurance policy carried by Westbrook's employer; that Westbrook had died on 22 March 1969 while the policy was in force, and death benefits in the amount of $4,000.00 and disability benefits of $164.20 were due and payable under the policy.
The bill further averred that on 26 March 1969, Mary L. Westbrook filed with Provident a claim for the proceeds of the policy, and on 27 March 1969, Irene B. Stephenson filed her claim to the proceeds of the policy.
The bill averred that Provident being uncertain as to which of the two claimants were lawfully entitled to the benefits under *570 the policy, and being desirous of being relieved of its obligation under the policy, did pay into the Registry of the court with the filing of the bill the total sum due under the policy.
It was prayed that process issue to the named respondents, and that the court determine and declare to whom the benefits were payable, and that Provident be released from its liability under the policy.
The respondent Irene Beasley Stephenson filed an answer to the bill of interpleader asserting that as Irene Beasley, she was named as beneficiary under the policy. This was before her marriage on 21 September 1968 to Robert H. Stephenson.
Mary L. Westbrook filed her answer and cross-bill. Therein she asserted that Irene B. Stephenson had been a friend of her son, the insured; that subsequent to Irene's marriage her son, the insured, "did make an oral gift of the proceeds" of the policy in question to her, Mary L. Westbrook.
The cross-bill further asserted that in December 1968 and January 1969 the insured did express an intent to change the beneficiary of the proceeds of the policy to the respondent Mary L. Westbrook, his mother.
At the hearing below various exhibits were received in evidence, and several witnesses were presented by each respondent.
Notes of testimony were filed by the respective parties on 15 January 1970, and the cause was submitted for final decree on that date.
On 28 January 1970, the Chancellor entered a final decree in the cause.
The Chancellor first discharged Provident from liability under the policy, the amount due under the policy having been paid into court.
It was further decreed that the respondent Westbrook was entitled to the proceeds of the policy and the Register was ordered to pay the balance of the monies paid into court after deducting all costs and a solicitor's fee of $250.00 allowed Provident. There was no finding of facts made by the Chancellor.
We, of course, will confine our review to the errors properly assigned and properly argued in brief.
Assignments of error 1, 2, 3, and 8, are joined for argument. These assignments question the sufficiency of the evidence to support the decree rendered.
The pleadings and the evidence presented below show that in 1950 Joseph Westbrook was issued a certificate of group life insurance by Provident. His mother, Mary L. Westbrook, the appellee here, was named as beneficiary.
On 16 June 1967, Joseph Westbrook filed with Provident a written request that the beneficiary under the above mentioned policy be changed to Irene Beasley. On that same day he also filed a request for a duplicate policy or certificate, asserting that the original policy had been lost, misplaced, or destroyed.
It appears that the insured had dated Irene Beasley for some time. Irene owned a tract of land in Jefferson County and she and the insured had engaged jointly in raising cattle. Irene apparently contributed about 45 head of cattle and the insured about 6 head at the beginning of this enterprise. Eventually the cattle were all sold and Irene insisted on dividing the proceeds equally regardless of the original contributions.
In late December 1968, the insured entered a hospital for tests because of a throat condition. This examination revealed that the insured had a malignancy of the throat, and on 7 January 1969, he was operated on for this condition. After his operation he left the hospital and returned to the home of his mother with whom he had lived for a long number of years. His recuperation was progressing but on 22 March 1969 he died, possibly of a heart attack.
*571 It is clear that at the time of his death Irene Beasley (now Stephenson) was the named beneficiary under the policy in question insofar as records of Provident disclose.
It is the contention of counsel for the appellee, Mrs. Westbrook, that the insured again changed the beneficiary from Irene Beasley Stephenson to Mrs. Westbrook, either by a parol change of beneficiary, or by a gift inter vivos.
Witnesses testifying in behalf of Mrs. Westbrook were Mrs. Mary Westbrook Moody, daughter of Mrs. Westbrook, and also administratrix of Joseph Westbrook's estate, her husband, Otis N. Moody, and Mrs. Elizabeth Peacock, who had been a friend of Joseph Westbrook for a number of years. Mrs. Westbrook also testified by deposition.
Their testimony was directed toward showing that Joseph Westbrook, prior to his death, and in particular shortly after his operation, had made statements to the effect that he wanted his mother to have the balance in his account in the Guaranty Savings and Loan Company, his balance in his credit union, the balance in his checking account, and the proceeds of his insurance policy.
Mrs. Moody and Mr. Moody testified that at a meeting in Mrs. Westbrook's home after his operation the insured had stated that his mother was the beneficiary under his insurance policy, and all the assets he left were for his mother.
On cross examination Mrs. Moody testified she found the policy in a chest drawer under some ties in insured's room after his death.
When she filed the claim for her mother with insured's employer she was informed that he had changed the beneficiary named in the policy.
In her deposition Mrs. Westbrook also testified that her son had told her on several occasions that she was the beneficiary of his insurance policy.
Mrs. Peacock testified that she had been with the insured the night before he died, and had discussed his business affairs with him. He had said that all he left was to be used to take care of his mother and the insured had told her the location of the insurance policy.
On cross examination Mrs. Peacock testified that the insured had mentioned his insurance policy to her over the years, and the only beneficiaries she knew about were his mother and father. She did not know that the insured had changed the beneficiary under the policy at any time.
All of appellant's witnesses testified that at no time did the insured produce any policy, or give or deliver any policy to Mrs. Westbrook.
Irene (Beasley) Stephenson testified that she and the insured had been close friends and at one time were in a cattle venture together. In 1967 he had the beneficiary of his policy changed from his mother to her, and gave her the policy. After her marriage she returned the policy to the insured and suggested he have his mother named as beneficiary, but he told her he wanted her to have the proceeds of the policy. On several occasions she had insisted that the insured change the beneficiary on the policy, and two days before the insured died he came by her office. She again urged him to change the beneficiary, but he said the policy was exactly as he wanted it, and if she did not want the proceeds, she could give the money to whomever she wanted to have it.
William O. Head, a witness for the appellant Stephenson, testified that he and the insured were cousins and had been friends through the years. He visited the insured the day before he died and they discussed his estate. As to the insurance policy, Head stated the insured told him he wanted the proceeds to go to Irene (Mrs. Stephenson), "just as it was made out."
In support of his contention that there had been a parol change of beneficiary in *572 favor of Mrs. Westbrook, counsel for Mrs. Westbrook cites and relies upon Norton v. Norton, 280 Ala. 307, 193 So. 2d 750. In Norton the insured had changed the beneficiary of his group policy from his mother to his wife Barbara. Later he reported to the insurer the birth of a child who was eligible for hospital benefits under the policy. He and Barbara were divorced, and the insured then reported his status as divorced. The insured later married Annette, and added two step children as dependents. He never changed the beneficiary of the policy. Both Barbara and Annette claimed the proceeds of the policy. The lower court found and held that the insured during his lifetime had effected by parol a change of beneficiary to Annette, and this court affirmed.
In the present case, after effecting a change of beneficiary to Irene Beasley (Stephenson), the record is bare of any evidence tending to show that the insured contacted his employer or Provident in any manner relative to any further change of beneficiary. There is simply no evidence from which any inference could be reasonably drawn that the insured effectuated by parol during his lifetime a change of beneficiary subsequent to naming Irene as beneficiary in 1967.
Mrs. Westbrook's answer and cross bill avers that the insured "did make an oral gift of the proceeds of the certificate of insurance * * * to his mother, your respondent Mary L. Westbrook."
As stated in Phillips v. Phillips, 240 Ala. 148, 198 So. 132:
The rule is well settled that there are three requirements necessary to the validity of a gift inter vivos, (1) an intention by the donor to make a gift, (2) delivery of the property to the donee, and (3) acceptance by the donee. Where personal property is capable of manual delivery an actual delivery of the property is necessary to consummate the gift, Garrison v. Grayson, 284 Ala. 247, 224 So. 2d 606, and authorities therein cited. See also Sec. 129, T. 47, Code of Alabama 1940, to the effect that parol gifts of personal property are inoperative until the custody and control of the property passes from the donor to the donee, and is possessed by such donee. A certificate or policy of life insurance evidencing the contract between insurer and insured is certainly capable of manual delivery.
All of the witnesses for the appellee testified that at no time did the insured deliver the policy to Mrs. Westbrook.
Where an insured has the right to change the beneficiary of his policy, a beneficiary has no vested right or interest under the policy but only an expectancy which becomes vested only upon the death of the insured. Flowers v. Flowers, 284 Ala. 230, 224 So. 2d 590.
The insurance policy was kept by the insured in a drawer in the room he occupied in his mother's home. It was in his possession. The policy was discovered by Mrs. Moody after insured's death. Appellee's attorney suggests that since the insured looked after his mother's business, his possession was her possession, that is, that he held the policy as agent for his mother. We find no evidence tending to support this theory. In fact, Mrs. Moody testified that her father had named her administrator *573 of his estate and she handled all of her mother's business.
Further, the rule is that the burden of proof is on a donee to establish the fact of a gift by clear and convincing proof and if the impartial mind is left in uncertainty as to exactly what the status of the transaction was, the donee has failed to discharge the burden and the claim of gift will fail. De Mouy v. Jepson, 255 Ala. 337, 51 So. 2d 506; Garrison v. Grayson, supra.
It is clear from the evidence that Irene Beasley Stephenson was the named beneficiary under the policy in question insofar as the records of Provident show. The insured had the privilege of changing the beneficiary. Absent such change, the right of the named beneficiary became vested in her upon death of the insured, unless the beneficiary was changed by parol, or by a gift inter vivos of the proceeds of the policy. The evidence is totally deficient to establish either of such contingencies. It follows therefore that that part of the decree adjudging that Mary L. Westbrook is entitled to the proceeds of the policy paid into the Registry and directing the Register to pay the balance of the same, after deducting all costs and solicitor's fee, to Mary L. Westbrook or her solicitor of record, is unsupported by the evidence and therefore erroneous. Likewise, that part of the decree adjudging that Irene Beasley Stephenson is not entitled to any portion of the proceeds of the policy is contrary to the evidence and erroneous. Accordingly, these two portions of the decree are reversed. The remaining portions of the decree are affirmed. The decree is therefore due to be, and hereby is, affirmed in part, reversed in part, and remanded to the lower court for entry of a decree consonant with this opinion.
Affirmed in part, reversed in part, and remanded.
LAWSON, MERRILL, MADDOX and McCALL, JJ., concur. | December 23, 1970 |
e3cd2ffb-8f9c-48ea-8d14-6c93ab692db3 | Watson v. ALA. FARM BUREAU MUT. CAS. INS. CO. | 465 So. 2d 394 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 394 (1985)
Willie C. WATSON
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY.
84-20.
Supreme Court of Alabama.
February 8, 1985.
*395 C. Delaine Mountain of Mountain & Newell, Tuscaloosa, for appellant.
Wilbor J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
FAULKNER, Justice.
This is an appeal from a declaratory judgment which held that Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau) had no duty to defend, or obligation to provide coverage, to appellant, Willie C. Watson, in a separate pending assault and battery action.
The facts giving rise to the declaratory judgment action occurred as follows: On June 20, 1980, Tim Koster and Michael Renfroe went to Koster's ex-wife's home. An argument ensued between Koster and his ex-wife Sharon. Sometime during the argument, Sharon's father, Willie Watson, telephoned her home, and he could tell that she was upset and crying. Watson then got in his car and drove towards his daughter's home. Koster and Renfroe eventually left Sharon's home and as they were driving down the road they were met by Watson. Watson got out of his car and walked up to Renfroe, who was sitting in the driver's seat of his truck, and asked, "What ya'll done to Sharon?" Watson had a gun with him and allegedly put the gun to Renfroe's head. The gun, loaded with rat shot, went off, injuring Renfroe.
Allegedly, Watson then proceeded to put the gun up to Koster's head, threatening to kill him. After Koster begged him not to shoot, Watson put the gun away and took Renfroe to the hospital.
On October 13, 1983, Renfroe filed an assault and battery complaint against Watson. Watson then contacted an attorney, who advised him to see if his homeowner's insurance policy provided coverage.
Farm Bureau filed this declaratory judgment action to determine its obligation, if any, to defend and provide coverage to Watson in the pending assault and battery action. The evidence was uncontroverted that a Farm Bureau homeowner's liability insurance policy had been issued to Watson and was in force and effect on the date of the shooting. However, the Circuit Court of Tuscaloosa County, sitting without a jury, determined that according to the terms of the policy, Farm Bureau was not obligated to defend or provide coverage to Watson. The trial court based its conclusion upon the findings that the actions of Watson were intentional in nature, with intended or expected results, and that timely notice was not given the insurer, as required by the policy provisions. Watson raises two issues on appeal:
The Alabama Farm Bureau homeowner's policy issued to Watson contained the following exclusion:
In Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921 (Ala.1984), this Court considered this same standard form insurance policy exclusion, in an effort to determine whether an insured's shooting of his brother was "expected or intended from the standpoint of the insured." The trial court found that the injury inflicted was not expected or intended, and therefore declared that Alabama Farm Bureau was obligated to defend and provide coverage to the insured's estate in the wrongful death action brought by his brother's widow. Upon review, this court noted that the ore tenus presumption of correctness applies to the trial court's finding:
Dyer, 454 So. 2d at 924.
In affirming the judgment of the trial court, the Dyer Court enunciated the legal standard to be applied when weighing the facts:
Dyer, 454 So. 2d at 925.
Applying the pronouncements in Dyer to the case at bar, the record indicates that there was sufficient evidence to support the trial court's findings. The testimony at trial indicates that Watson took a gun with him when he went to see what had happened to his daughter. Watson got out of his car and had the gun with him. He came up to Renfroe's truck and asked, "What ya'll done to Sharon?" and then pulled the gun, pointed it at Renfroe's head, and shot Renfroe.
Although the testimony indicated no prior animosity between the parties, and although Watson testified that he did not mean to shoot Renfroe, nevertheless the trial judge, after hearing all the evidence could have reasonably concluded that when Watson pulled the gun, he either expected or intended that the gun would discharge and injure Renfroe.
Based upon all of the evidence, the trial court could have reasonably concluded that Watson either expected or intended that the gun would discharge and injure Renfroe. The ore tenus presumption of correctness attaches to the trial court's findings on this controverted factual question.
Watson also argues that the trial court erred in its finding that he failed to give Farm Bureau notice of the incident within the time required by the policy.
As it related to notice, the policy provided:
The policy in this case required that notice be given to the insurer "as soon as practicable." In Southern Guaranty Insurance Co. v. Thomas, 334 So. 2d 879 (Ala. 1976), we noted that the terms "as soon as practicable" and "immediately," as they are used in insurance policies, have been construed to mean that notice must be given "within a reasonable time" in light of the facts and circumstances of a given case. Id. at 882.
In determining whether notice was given "within a reasonable time," this Court in Cherokee Insurance Co. v. Frazier, 406 So. 2d 881 (Ala.1981), stated:
According to the evidence in this case, the shooting occurred on June 28, 1980. Watson did not notify Farm Bureau of the incident until October 1983. Watson claims that his three-year delay in giving notice occurred because he was unaware that his policy provided coverage. He asserted that it was not until he contacted an attorney that he realized that his homeowner's insurance might cover this kind of incident.
A similar reason for delay was presented to this court in Southern Guaranty Insurance Co. v. Thomas, 334 So. 2d 879 (Ala. 1976). In that case, we found that this excuse was clearly unreasonable, and noted that since the insured had possession of the policy and ample opportunity to read it, the terms of the policy had been breached. Id. at 884; see also, Liberty Mutual Insurance Co. v. Bob Roberts and Co., 357 So. 2d 968 (Ala.1978).
Upon review of the record in this case, we find that the trial court's conclusions were not clearly erroneous or against the great weight of the evidence. Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | February 8, 1985 |
14d14b0c-0867-410e-ad81-b359313928f0 | First Church of Christ, Scientist v. Watson | 239 So. 2d 194 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 194 (1970)
The FIRST CHURCH OF CHRIST, SCIENTIST
v.
Dallas L. WATSON, III, et al.
4 Div. 393.
Supreme Court of Alabama.
September 10, 1970.
*195 Farmer & Herring, Dothan, for appellant.
A. A. Smith, Hartford, Farmer & Farmer, Dothan, for appellees.
MADDOX, Justice.
The sole question presented by this appeal involves the construction to be given to the following will clause:
Dallas L. Watson, Jr., the testator, and Lillie Grice Watson were divorced on January 27, 1969, and he died 22 days later, and Lillie Grice Watson survived the testator for more than thirty days. The will was admitted to probate in Houston County on May 21, 1969.
The First Church of Christ, Scientist, in Boston, Massachusetts, a corporation, filed an original bill of complaint in the Circuit Court of Houston County against Dallas L. Watson, III, and Willie Marie Watson, children of the testator by his first wife, Jeanette Hutto Watson, seeking a construction of the will and asking the Court to find that it was the sole devisee under the will and therefore entitled to all the assets of the estate of the testator.
The trial court sustained demurrers filed separately and severally, on behalf of the two minor children of the defendants, to the bill as amended and substituted, and dismissed *196 the bill. The First Church of Christ, Scientist, then took this appeal.
On appeal, both sides seem to agree that the divorce between Dallas L. Watson, Jr., and Lillie Grice Watson prevents her from taking anything under the provisions of the will, in view of the provisions of Section 1 of Act No. 287, Acts of Alabama, 1951, Regular Session, p. 572 [Title 61, Section 9(1)], which reads as follows:
There is sharp disagreement among the parties as to the right of The First Church of Christ, Scientist, to take under the will.
Construing the will before us as of the date of the testator's death and in view of the mandate of the statute, the former spouse could take nothing under the provisions of the will, but the entire will is not revoked, only that portion which makes provision for the former spouse. Tankersley v. Tankersley, 270 Ala. 571, 120 So. 2d 744 (1960). Furthermore, there is a presumption that the testator intended to dispose of his entire estate and that he did not intend to die intestate as to any portion of his property, unless the contrary intention is so plain as to compel a different conclusion. Baker v. Wright, 257 Ala. 697, 60 So. 2d 825 (1952). In this connection, it might be pointed out that the testator did not make any provision in his will for his children by the former marriage, and these children would share in the estate which passes by the will only if the will is declared to be invalid and they become entitled as heirs under our laws of descent and distribution. Appellees say this is what should happen.
A number of states have enacted statutes similar to ours specifying that a divorce from the bonds of matrimony operates, as a matter of law, as a revocation of that part of the will making provision for the former spouse.[1] The language of these various state statutes would indicate that each was based upon § 53 of the Model Probate Code. In fact, the newer Uniform Probate Code, in § 2-508, provides:
While our statute does not contain all of the provisions of § 2-508 of the Uniform Probate Code, we think that property which is prevented from passing to the former spouse because of revocation by divorce should pass as if the former spouse failed to survive the decedent, unless a contrary intention is apparent from the provisions of the will.[2]
A case strikingly similar to our own here is Peiffer v. Old Nat. Bank & Union Trust Co., 166 Wash. 1, 6 P.2d 386 (1931). There, *197 the testator expressed a positive intention to give nothing to his daughter by his first wife, but left his entire property to his "beloved wife," if she should survive him for three months, otherwise to his son. However, the testator and his wife were divorced at the time of his death and the will as to her was revoked under the provisions of a Washington statute very similar to our own. The daughter by the first marriage, the contestant, contended that because the decedent's former spouse still lived, the son would take nothing under the will but was entitled to share equally with her under the laws of descent and distribution. Except for the fact that The First Church of Christ, Scientist, is the alternate devisee here instead of a member of the decedent's family, the facts in the Peiffer case, supra, are almost identical with those presented in this appeal. The Washington Supreme Court held in Peiffer, supra, that the provisions for the former spouse were revoked by the divorce, and that while the divorce necessarily annulled the provisions as to the former spouse taking any part of the estate, it did not revoke and annul the bequests to the son and the disinheritance of the daughter.
The appellees contend that by the very terms of the will, the former spouse survived the decedent for thirty days, and that the condition precedent for the Church to take therefore never occurred. The same argument was made in Peiffer, supra. We say, as that court did, that it is not necessary for us to go so far, as is contended by the appellees, as to declare that the divorce of the wife of the testator was equivalent to her death. After her divorce, she was no longer the wife of the testator and did not survive as his widow. See also lies v. lies, 158 Fla. 493, 29 So. 2d 21 (1947), where the Supreme Court of Florida, without benefit of a statute like ours, found that a divorced wife took nothing by a will where the testator gave all his property to his wife in case she survived him, and not otherwise, and provided that if she did not survive him, his property should go to his lawful issue, and that if he left no lawful issue, then to his brother. The testator was drowned about 11 weeks after his wife obtained a divorce, without having changed his will, and without leaving any children. Cf. Bell v. Smalley, 45 N.J.E. 478, 18 A. 70 (1889).
In view of our statute and the presumptions we must indulge, we cannot follow the construction of the will contended for by the appellees. To do so would bring about intestatcy and defeat the intent of the testator with respect to the disposition of his property.
We also point out that the bill shows that appellant is entitled to have a construction of the will and that an answer and testimony will probably aid the trial court in construing the will, and that the will in this case should not be construed on demurrer. Curlee v. Wadsworth, 273 Ala. 196, 136 So. 2d 886 (1962); Robinson v. Robinson, 273 Ala. 192, 136 So. 2d 889 (1962); Fillmore v. Yarbrough, 246 Ala. 375, 20 So. 2d 792 (1945).
The judgment, therefore, of the circuit court dismissing appellant's bill of complaint is due to be reversed and the cause remanded to the court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, MERRILL and BLOODWORTH, JJ., concur.
[1] See Rees, American Wills Statutes-II, 46 Va.Law Rev. 885.
[2] In Jeffries v. Boyd, 269 Ala. 177, 112 So. 2d 210 (1959), we held the former spouse was not entitled to be named executrix of her former husband's estate even though the husband had appointed "my wife" as the executrix. We there cited the provisions of Title 61, § 9(1), even though our statute does not contain any provisions with regard to the effect of a divorce upon the nominations made by a testator of a former spouse as executor. | September 10, 1970 |
f23f74f1-3c77-4b6a-9d98-6e98a27e35cb | Sho-Me Motor Lodges v. JEHLE-SLAUSON CONST. | 466 So. 2d 83 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 83 (1985)
SHO-ME MOTOR LODGES, INC., of Alabama, d/b/a Mobile Howard Johnson's, a corporation
v.
JEHLE-SLAUSON CONSTRUCTION COMPANY, a partnership; Southern Roof Deck Applicators, Inc.
83-324.
Supreme Court of Alabama.
January 11, 1985.
Rehearing Denied March 22, 1985.
*84 Michael J. Salmon, Gulf Shores, for appellant.
Charles J. Fleming and Edward C. Greene of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Jehle-Slauson Const. Co.
Victor T. Hudson and William W. Watts of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee Southern Roof Deck Applicators, Inc.
BEATTY, Justice.
This is an appeal by Sho-Me Motor Lodges, Inc., of Alabama (Sho-Me), d/b/a Mobile Howard Johnson's Motor Lodge (Mobile Howard Johnson's), from summary judgments entered in favor of Jehle-Slauson Construction Company (Jehle-Slauson) *85 and Southern Roof Deck Applicators, Inc. (Southern Roof).
This case actually involves three separate actions, although only the last of the three is presently before us on appeal. The following facts are pertinent to all three actions:
On or about September 17, 1979, Sho-Me, the owner of the Mobile Howard Johnsons's, entered into a contract with Jehle-Slauson, as prime contractor, for the repair of damage caused by Hurricane Frederic. Jehle-Slauson then subcontracted with Southern Roof and under the terms of the contract Southern Roof agreed to complete the sheetrock work. On February 20, 1980, Sho-Me cancelled the contracts of both Jehle-Slauson and Southern Roof.
Before elaborating on the nature and outcome of the three actions involved, we will at this point briefly summarize those actions:
June 30, 1980 Jehle-Slauson filed suit against Sho-Me.
March 27, 1981 Dismissed with prejudice, on stipulation of the parties.
July 18, 1980 Southern Roof filed suit against Sho-Me and Jehle-Slauson
August 13, 1980 Jehle-Slauson filed a cross-claim against Sho-Me.
December 9, 1980 Complaint and cross-claim dismissed with prejudice, on stipulation of the parties.
May 28, 1981 Sho-Me filed suit against Jehle-Slauson.
July 9, 1981 Jehle-Slauson filed a third-party complaint against Southern Roof.
October 28, 1983 Summary judgments granted in favor of defendant Jehle-Slauson and third-party defendant Southern Roof.
Jehle-Slauson filed an action on June 30, 1980, (Action No. 1) upon a lien against Sho-Me and others in the Circuit Court of Mobile County, claiming monies due under its contract as of the date of the cancellation by Sho-Me. This suit was settled, with Sho-Me executing a release on February 17, 1981, in connection with the settlement. In pertinent part, as events will show, this release contained the following provision:
The letter referred to in this exception was written on December 30, 1980, by Ms. Bert S. Rector, manager of Mobile Howard Johnson's, to Jehle-Slauson:
The settlement agreement between Sho-Me and Jehle-Slauson, dated March 27, 1981, contained, among other terms, these provisions:
The lawsuit brought by Jehle-Slauson, accordingly, was dismissed on March 27, 1981, "by stipulation of the parties."
Shortly after Jehle-Slauson filed suit against Sho-Me, Southern Roof brought an action against Sho-Me, Jehle-Slauson, and others (Action No. 2), based upon a lien arising out of Southern Roof's subcontract with Jehle-Slauson. Jehle-Slauson cross-claimed against Sho-Me. Both the original action and the cross-claim were settled and, upon a stipulation for dismissal by the parties, dismissed on December 9, 1980. In that connection, Southern Roof had executed a release on December 4, 1980, in favor of Sho-Me and Jehle-Slauson containing this clause:
During the pendency of Action No. 1 and Action No. 2, as suggested by the above letter of Ms. Rector, sometime in August of 1980, Sho-Me discovered the mildew problem when one of the maids at the Mobile Howard Johnson's discovered discoloration on the walls of one room and reported it to the housekeeper. During August and September of 1980, Sho-Me, in an apparent effort to determine the cause of this condition, had inspections conducted by several contractors, but the inspections proved inconclusive. Therefore, Sho-Me had studies performed by two testing laboratories. The reports of these two laboratories were completed in November and December of 1980. On December 30, 1980, Sho-Me gave written notice of the mildew condition to Jehle-Slauson and Southern Roof.
On May 28, 1981, Sho-Me filed suit in the Circuit Court of Mobile County against Jehle-Slauson (Action No. 3). In this complaint, Sho-Me claimed damages as a result of the mildew condition that had developed at the Mobile Howard Johnson's following Hurricane Frederic. Specifically, Sho-Me contended that in supplying and using moisture-laden sheetrock, Jehle-Slauson breached its written contract with Sho-Me for the repair of this storm-related damage by supplying defective workmanship and material and breached its implied warranty that the work performed pursuant to this contract would be accomplished in a good and workmanlike manner.
In July of 1981, Jehle-Slauson answered the complaint, denying allegations of breach of contract and breach of warranty made by Sho-Me. In addition, Jehle-Slauson advanced third-party claims against Southern Roof as the subcontractor who performed the sheetrock work in the Sho-Me project, and Sho-Me's architect, Hood-Rich Architects and Consulting Engineers. The architects were taken out of the action by summary judgment, which was affirmed by this Court in Jehle-Slauson Construction Co. v. Hood-Rich Architects, 435 *87 So. 2d 716 (Ala.1983). In its third-party complaint against Southern Roof, Jehle-Slauson alleged that it and Southern Roof had entered into a subcontract by which Southern Roof agreed to perform work required by the contract to include furnishing all labor and material to install all sheetrock walls.
Southern Roof answered the third-party complaint of Jehle-Slauson by pleading a general denial and certain affirmative defenses.
After extensive discovery, Jehle-Slauson moved for summary judgment based upon the pleadings, discovery materials, the depositions of Charles Sturgell and Bert Rector, and the files of the earlier case of Southern Roof v. Sho-Me, et al. That motion was denied. Jehle-Slauson moved for a reconsideration of this action, while Southern Roof also moved for summary judgment. Upon reconsideration of Jehle-Slauson's motion and consideration of Southern Roof's motion, the trial court entered the following order:
The order entered on the motion for summary judgment filed by Southern Roof reads:
This appeal by Sho-Me from both judgments followed.
Jehle-Slauson and Southern Roof have filed separate motions to dismiss this appeal taken by Sho-Me.
Jehle-Slauson's motion is grounded upon the assertion that the judgment appealed from is not a final judgment and thus will not support an appeal. In the alternative, Jehle-Slauson moves that this case be remanded to the trial court for entry of a final judgment under Rule 54(b), A.R.Civ.P.
Of course, Rule 54(b) requires "an express determination that there is no just reason for delay." Each of these judgments contains the express language that "the Court further finds that there is no just reason for delay." Moreover, Rule 54(b) requires "an express direction for the entry of judgment." Each of these judgments contains the express language "[m]otion for summary judgment granted," and both continue, "there is no just reason for delay in the entry of said final judgment." (Emphasis added.)
Apparently Jehle-Slauson contends that these entries were fatally deficient for the absence of the word "directs" from the language used to grant summary judgment. We cannot agree with such an interpretation. In Foster v. Greer & Sons, Inc., 446 So. 2d 605, 609 (Ala.1984), this Court announced:
In this case, from a reading of the language used, the order entered appears to be a final order under Rule 54(b) and it obviously was so intended. The motion of Jehle-Slauson to dismiss this appeal is denied.
Southern Roof's motion to dismiss the appeal is based upon a different ground. Southern Roof argues that Sho-Me is not aggrieved by the judgment entered in favor of Southern Roof in the third-party claim of Jehle-Slauson against Southern Roof, and that Sho-Me has no other interest in the third-party action commenced by Jehle-Slauson. That ground raises the question of whether or not the plaintiff, Sho-Me, should be permitted to appeal from a summary judgment for Southern Roof, which was entered on the third-party complaint filed by Jehle-Slauson against Southern Roof and which was not appealed by Jehle-Slauson. We answer that question in the negative.
Who may appeal from a judgment? Ordinarily, one who is not a party to a cause cannot appeal. Security Life & Accident Ins. Co. v. Crescent Realty Company, 273 Ala. 624, 143 So. 2d 441 (1962); Hunt v. Houtz, 62 Ala. 36 (1878). Moreover, when an error applies only to a party who does not appeal therefrom, another party cannot make any such error an issue on appeal. Rush v. Heflin, 411 So. 2d 1295 (Ala.Civ.App.1982); Kirkland v. Kirkland, 281 Ala. 42, 198 So. 2d 771 (1967). Although Southern Roof is a third-party defendant in this case, plaintiff Sho-Me is in no way aggrieved by the summary judgment entered in Southern Roof's favor and against Jehle-Slauson. Jehle-Slauson filed a third-party complaint against Southern Roof, seeking indemnity for any liability it might have to Sho-Me. Sho-Me has not asserted any claim directly against Southern Roof, and it has not been shown to us that Sho-Me has any interest in Jehle-Slauson's third-party action. When summary judgment was entered against it as to the third-party complaint, Jehle-Slauson, though it was the party aggrieved by that judgment, did not appeal. Sho-Me, for aught that appears, has looked to Jehle-Slauson for its recovery, and has been indifferent to the manner and means by which Jehle-Slauson, in turn, might protect itself. Fuller v. Branch County Commission, 520 F.2d 307 (6th Cir.1975); Bryant v. Technical Research Co., 654 F.2d 1337 (9th Cir.1981).
Because Sho-Me was not a party aggrieved by the judgment entered against Jehle-Slauson in its third-party claim against Southern Roof, it could not appeal from that judgment. Therefore, the motion of Southern Roof to dismiss Sho-Me's appeal of that judgment must be, and is, granted.
The remaining question is whether the summary judgment entered against Sho-Me in its claim against Jehle-Slauson was appropriate. We hold that it was not appropriate.
Summary judgment is authorized only when the moving party clearly shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. Kutack v. Winn-Dixie Louisiana, Inc., 411 So. 2d 137 (Ala.1982).
Jehle-Slauson argues that summary judgment was appropriate in Sho-Me's action against Jehle-Slauson because of the effect of Rule 13(a), A.R.Civ.P., the compulsory counterclaim rule:
The argument proceeds in this manner:
In July 1980, Southern Roof sued Sho-Me and Jehle-Slauson (Action No. 2), claiming damages allegedly due under Southern Roof's dry wall subcontract with Jehle-Slauson. Jehle-Slauson cross-claimed against its co-defendant, Sho-Me, claiming damages due under its contract with Sho-Me for the storm damage repairs. That litigation was dismissed on December 9, 1980. Jehle-Slauson points out that the mildew condition was discovered by Sho-Me in August 1980, and Sho-Me notified Jehle-Slauson and Southern Roof of the problem on December 30, 1980, yet Sho-Me failed to assert a counterclaim against Jehle-Slauson based upon the mildew problem. See Ex parte Reliance Ins. Co., 404 So. 2d 610 (Ala.1981).
Jehle-Slauson cites us to the deposition of Ms. Rector, manager of Sho-Me:
As Jehle-Slauson insists, it is established by the record that Sho-Me was aware of a mildew condition. Mere awareness of that condition, however, does not establish that Sho-Me was also aware that it had a claim against Jehle-Slauson for that condition.
The following appears in the affidavit of Ms. Rector:
According to the record, in an attempt to determine the cause of the mildew problem, Sho-Me began an investigation, employing a roofing contractor, a Mobile laboratory (the Geotechnical Laboratory), and a New Orleans laboratory (Pittsburgh Testing Laboratory) to make findings. The New Orleans laboratory report is dated December 8, 1980, and it was not until *90 after that report was received that Sho-Me's architect gave his opinion as to the cause of the mildew being the application of wet sheetrock. Both Southern Roof's original action and Jehle-Slauson's cross-complaint were dismissed on December 9, 1980, on the stipulation of the parties. It appears from the record that Sho-Me did not have the report of the New Orleans laboratory or the opinion of its architect on December 9, 1980, and therefore could hardly be expected to file a counterclaim in an action which had been settled and dismissed before Sho-Me knew that such a claim actually existed. As we pointed out above, Sho-Me became aware of the mildew condition in August or September, but this is entirely different from knowledge that it had a claim against Jehle-Slauson for causing this condition.
Rule 13(a), A.R.Civ.P., requires a party to file as a counterclaim "any claim... the pleader has against any opposing party" which arises out of the same transaction or occurrence involved in the opposing party's claim. Implicit within this requirement, however, is the knowledge that one has a claim against the opposing party. Certainly Rule 13(a) cannot be construed to require a party to file as a compulsory counterclaim a claim which it does not know it has.[1]
Jehle-Slauson filed its cross-claim in Action No. 2 against Sho-Me on August 13, 1980. It was not until after this filing that Sho-Me even discovered the mildew condition existed. Sho-Me thereafter undertook to investigate the cause of this condition. It is through no apparent fault of Sho-Me that Action No. 2 was settled and dismissed before its investigation into the mildew problem was complete and it became aware of an actual claim against Jehle-Slauson.
Moreover, Sho-Me's release of Jehle-Slauson in Action No. 1, dated February 17, 1981, also quoted above, preserved Sho-Me's rights "with respect to the mildew problem" and "any defects in workmanship or materials which are neither (a) evident and obvious at the present time nor (b) known by the undersigned to exist at the present time." In addition, the settlement agreement between Sho-Me, Jehle-Slauson, and others not only expressly reserved Sho-Me's right to file suit against Jehle-Slauson "based upon any warranty rights which exist arising from the agreement between some of the parties dated September 19, 1979, as amended February 7, 1980," but went further and stated:
It appears from this agreement that Sho-Me and Jehle-Slauson agreed that a later claim for warranty rights would not have been considered a compulsory counterclaim. As this Court held in a recent case, Brooks v. Peoples National Bank of Huntsville, 414 So. 2d 917, 920 (Ala.1982):
See also Nero v. Chastang, 358 So. 2d 740 (Ala.Civ.App.), cert. denied, 358 So. 2d 744 (Ala.1978) (a valid compromise agreement is conclusive only as to those matters which the parties fairly intended to include within its terms, and settlement is effective except as to those elements of the claim specifically reserved).
The agreement between Jehle-Slauson and Sho-Me specifically states that a later claim for warranty rights shall not be considered to have been a compulsory counterclaim "in the above described action." The action referred to is Action No. 1, which was Jehle-Slauson's original action against Sho-Me. It is now Jehle-Slauson's contention that Sho-Me should have filed the claim related to the mildew condition as a compulsory counterclaim in Action No. 2. However, Jehle-Slauson's cross-claim against Sho-Me in Action No. 2 stated:
Consequently, Jehle-Slauson's cross-claim in Action No. 2 was the same as its claim in Action No. 1 and, as to Jehle-Slauson and Sho-Me, Action No. 2 was one and the same with Action No. 1. In view of this fact and the fact that the agreement in Action No. 1 was executed on March 27, 1981, several months after Action No. 2 had been settled and dismissed, the agreement specifically preserving Sho-Me's right to bring a later action extended to Action No. 2.
The appeal of Sho-Me from the summary judgment in favor of Southern Roof in Jehle-Slauson's third-party claim against Southern Roof is hereby dismissed.
For the reasons stated above, the summary judgment entered in favor of Jehle-Slauson on Sho-Me's claim against Jehle-Slauson is reversed, and that cause is remanded for further proceedings.
It is so ordered.
APPEAL DISMISSED AS TO SOUTHERN ROOF; REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] By way of illustration, suppose A, who is going away for six months, wrongfully leaves his car on B's property. While A is away, B proceeds to spray the car with a discoloring material. When A returns, he immediately becomes aware that his car is discolored. However, A does not know whether the discoloration is due to exposure to the elements or to some other cause. If B files an action against A for trespass, A, having no knowledge that he has a counterclaim against B for the discoloration of his car, cannot logically be required to file a counterclaim. | January 11, 1985 |
5bca6dec-980a-44a7-a049-81a211e1cf90 | Opelika Coca-Cola Bottling Co. v. Johnson | 241 So. 2d 331 | N/A | Alabama | Alabama Supreme Court | 241 So. 2d 331 (1970)
In re OPELIKA COCA-COLA BOTTLING CO., Inc.
v.
Albert JOHNSON. Ex parte OPELIKA COCA-COLA BOTTLING COMPANY, Inc.
5 Div. 906.
Supreme Court of Alabama.
November 5, 1970.
Brown & McMillan, Auburn, for petitioner.
Russell, Raymon & Russell, Tuskegee, for respondent.
BLOODWORTH, Justice.
Petition of Opelika Coca-Cola Bottling Company, Inc., for certiorari to the Court *332 of Civil Appeals to review and revise the judgment and decision of that court in Opelika Coca-Cola Bottling Company, Inc. v. Johnson, 5 Div. 12, 46 Ala.App. 298, 241 So. 2d 327, is denied.
We consider it appropriate here to note that the denial of a petition for a writ of certiorari to either of our courts of appeal does not necessarily indicate our approval of all the language used, nor of the statements of law made in the opinion of that court. Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829.
Writ denied.
SIMPSON, MERRILL, COLEMAN, HARWOOD, MADDOX and McCALL, JJ., concur. | November 5, 1970 |
f96619db-7062-4df2-9a44-b5b4701789fc | Johnson v. Ralls | 243 So. 2d 673 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 673 (1970)
Fred JOHNSON, as Administrator, Etc.
v.
Grady RALLS.
3 Div. 409.
Supreme Court of Alabama.
November 12, 1970.
Rehearing Denied February 4, 1971.
*674 James M. Prestwood, Andalusia, for appellant.
Brooks, Garrett & Thompson, Brewton, for appellee.
PER CURIAM.
The original opinion in this case is withdrawn and this opinion is substituted therefor.
Plaintiff appeals from a judgment of voluntary nonsuit entered by the Circuit Judge of Conecuh County who overruled plaintiff's demurrer to defendant's Plea Two which hereinafter appears. Title 7, § 819, Code of Ala., Recompiled 1958.
Appellant sued at law in his fiduciary capacity as administrator of the estate of J. C. Johnson, deceased, to recover damages of appellee under the Homicide Act. Title 7, § 123, Code of Ala., Recompiled 1958. The action is based on alleged negligence of defendant, acting through a servant or agent, in causing the death of appellant's intestate. There are five counts in the complaint. We briefly refer to each count.
Count 1 charged the defendant with simple negligence in running a truck, operated by his agent or servant, against plaintiff's intestate, J. C. Johnson, thereby proximately causing his death. There is no allegation in this count that the deceased was at the time an employee of defendant. Nor is there any allegation, as in the other four counts, that plaintiff's intestate left no dependents at the time of his death or demise.
Count 2, an amendatory count, alleges the death of plaintiff's intestate by the negligent operation of a truck, driven at the time by an agent or servant of defendant. It is averred that the agent or servant operated the truck against plaintiff's intestate while he was riding as a passenger on another truck and that he was thereby killed. It is alleged that deceased left no dependents.
Count 3 alleges death of plaintiff's intestate by the negligent operation of a motor truck driven at the time by defendant's agent or servant against an automotive truck, belonging to defendant in which plaintiff's intestate was a passenger. It is alleged that said truck driven by said agent or servant had faulty brakes which was known to defendant. It is averred that the relationship of master and servant existed between said intestate and defendant. Also, it is alleged in this count that said intestate had no dependents at the time of his injury and demise.
Count 4 alleges that plaintiff's intestate was an employee of defendant, who was a contractor engaged in highway construction, and while said intestate was a passenger on one of defendant's trucks, then operated by defendant, another employee of defendant, while operating another truck owned by defendant, and used by defendant in the performance of his highway contract, negligently operated the "other truck" and caused the same to run over or against plaintiff's intestate, who suffered injuries that caused his death. We note that the relationship of employer and employee between said intestate and defendant is alleged to have existed at the time. It is also alleged in this count that said intestate had no dependents at the time of his injury and demise.
Count 5 alleges that plaintiff's intestate was an employee of defendant, who as a contractor, was engaged in highway construction, and did furnish to another of his employees an automotive truck which had defective brakes, and which condition was *675 known to defendant, and while intestate was a passenger on another of defendant's trucks, then being operated by defendant himself, the employee of defendant who was operating the defendant's truck which had the faulty brakes, did so negligently operate said truck, at the construction site, as to cause the same to run against or over plaintiff's intestate, who suffered serious bodily injuries from which he died. It is alleged that said death was caused by the coalescing negligence of defendant in furnishing the vehicle with faulty brakes. It is also here alleged that the intestate had no dependents at the time of his injury and demise.
Defendant filed a plea to the complaint as amended and to each count thereof. This plea reads as follows:
Plaintiff demurred to Plea Two as follows:
"1. Plea No. Two states no defense to complaint of plaintiff.
"6. Plea No. Two states merely conclusions of the defendant."
The trial court overruled the foregoing demurrer. Thereupon, plaintiff declined to plead further, took a voluntary nonsuit, and here seeks a review of the action of the court in overruling the demurrer to said Plea No. Two. Such review is predicated on two related assignments of error as follows:
Grounds one, four, five and six of plaintiff's demurrer are general and present nothing for review. Title 7, § 236, Code of Ala., recompiled 1958; Evitt v. Lowery Banking Company, 96 Ala. 381, 11 So. 442(1); Ryall v. Allen, 143 Ala. 222, 38 So. 851(3); Fuqua v. Southern Ry. Co., 201 Ala. 164, 77 So. 690(5); Caffee v. Durrett, 282 Ala. 71, 209 So.2d 210(4); 16 Ala.Dig., Pleading 201; Suell v. Derricott, 161 Ala. 259, 49 So. 895(18).
This leaves for consideration the efficacy of Grounds two and three, supra. We again here note that Counts one and two make no reference to any employer and employee relationship between the intestate and defendant at the time of the alleged impact between the trucks. Counts three, four, and five do allege such relationship. However, Plea Two, supra, alleges that at the time and place complained of, plaintiff's intestate was an employee of defendant. This averment, addressed to all the counts, presents a factual issue for the first two counts that the relationship existed. All the other counts contain the averment.
*676 We have held that injuries to an employee, where the relation of employer and employee exists, presumably come under the Workmen's Compensation Statutes. W. B. Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772, 774(6, 8). If a complaint filed by an employee against his employer should be interpreted to state an action ex delicto, it would be defective in failing to aver facts that take it without The Compensation Law. Davis v. Ruple, supra, (6, 8). See also Kaplan v. Sertell, 217 Ala. 413, 116 So. 112(2), where suit was filed against the master by the servant for personal injuries and founded upon breach of a common law duty of the master to furnish safe tools for use of his servant. There this court observed:
Plaintiff, in an effort to meet the mandate that he aver facts bringing his intestate within the exceptions, averred in all counts except Count 1 that his intestate had no dependents. He argues in his brief that such absence of dependents brought him within the exceptions and permitted pursuit of damages under the Homicide Act, supra. We pretermit deciding whether this averment brought him within the exception.
Plea Two, addressed to plaintiff's complaint as amended and to each and every count thereof, averred, as we have already noted, that plaintiff's intestate was an employee of defendant at the time and place complained of, and was acting within the line and scope of his employment as such employee. Grounds two and three of plaintiff's demurrer, supra, challenge the sufficiency of this plea because it fails to aver that such intestate was survived by or left dependents who are entitled to compensation under the Workmen's Compensation Act.
The effect of such an averment in the plea, as raised by Grounds two and three of the demurrer, would be to deny plaintiff's averments in each of Counts 2, 3, 4, and 5, that the defendant had no dependents. Plaintiff by these two grounds of demurrer simply demurs on the ground that defendant failed to deny or join issue on the averments that there were no dependents.
Defendant had an option to demur to the complaint, and each count thereof, plead thereto, or join issue. A demurrer as here interposed was unavailable to plaintiff to compel defendant to join issue or deny the averments in the complaint that there were no dependents. He elected to plead by averring the existence of employer and employee relationship between the two.
But Counts 1 and 2 contain no averment that the relationship of master and servant existed between plaintiff's intestate and defendant at the time of the alleged injuries that allegedly caused the death of said intestate. This omission is supplied by Plea Two. The effect of such averment, when proved, is to impose on plaintiff the duty to aver facts which would bring this case within the exceptions of The Workmen's Compensation Law. Kaplan v. Sertell, supra; Steagall v. Sloss-Sheffield Steel & Iron Company, 205 Ala. 100, 87 So. 787. If an averment that no dependent existed was sufficient to bring the case within an exception of the said Workmen's Compensation Law, then it was incumbent on plaintiff to make the averment in said Count 1. There was no duty or responsibility on defendant to aver in said Plea Two that there were dependents, thereby relieving plaintiff of the responsibility to aver in Count 1 that there were no dependents, thus bringing this count within an exception to the said Compensation Law if such was the effect.
*677 Plaintiff cannot escape such responsibility by such an expedient.
Plaintiff was content to take a voluntary nonsuit and appeal here to review the ruling of the trial court on the demurrer. This ruling was free of error.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, while serving on the Supreme Court at the request of the Chief Justice, and was adopted by the court as its opinion.
The original opinion is withdrawn and this opinion is substituted.
Application for rehearing denied.
The judgment is affirmed.
SIMPSON, COLEMAN, and McCALL, JJ., concur.
BLOODWORTH, J., concurs in result.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur in the result reached, but I would affirm the lower court on the merits. From the pleadings in this matter it is apparent, in my judgment, that the parties were framing this issue:
I believe that the parties successfully presented this issue by the pleadings, and the briefs on appeal argue the issue as above framed. Therefore, I would affirm the trial court on the basis that a personal representative of a deceased employee who is covered under the Workmen's Compensation Act cannot maintain an action under our Homicide Statute against his employer for the employee's wrongful death.
In death damage cases against employers, our Workmen's Compensation Act is exclusive. DeArman v. Ingalls Iron Works, Inc., 258 Ala. 205, 61 So. 2d 764 (1952) (dictum); Patterson v. Sears Roebuck & Co., 196 F.2d 947 (5 Cir., 1952); Title 26, § 272, Code of Alabama, 1940 (Recompiled, 1958). This rule is followed in several other states having acts similar to ours. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966) and cases there cited.
Appellant contends that in death cases where there are no dependents, the next of kin of a deceased employee are left without a remedy. Under our statutes, this is presently true, but the wisdom of allowing the personal representative of a deceased employee who leaves no dependents to maintain a wrongful death action against the deceased employee's employer is for the Legislature, not for this Court.
COLEMAN, J., concurs. | November 12, 1970 |
6163804a-b9d6-4e55-bc21-4635baa7e6a4 | McRae v. Sawyer | 473 So. 2d 1006 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1006 (1985)
C.R. McRAE
v.
Jessie Lee SAWYER and Juanita Peterson.
Jessie Lee SAWYER
v.
C.R. McRAE.
Juanita PETERSON
v.
C.R. McRAE.
82-1301, 83-4 and 83-5.
Supreme Court of Alabama.
April 12, 1985.
Rehearing Denied June 28, 1985.
*1007 Irving Silver and Lawrence B. Voit, Mobile, for appellant, cross-appellee C.R. McRae.
Joseph T. Brunson, Norman E. Waldrop, Jr. and Grover E. Asmus, II, of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees, cross-appellants Jessie Lee Sawyer and Joseph T. Brunson.
Gary D. Porter, Mobile, for appellants, cross-appellees Juanita Peterson and Gary D. Porter.
ADAMS, Justice.
C.R. McRae appeals from judgments in two consolidated cases which awarded him an attorney's fee lien of $5,000.00 in each case. The plaintiffs in those cases cross-appeal, asserting that McRae was entitled to no lien at all. We agree with the appellees/cross-appellants and, therefore, reverse the trial court's judgments awarding the liens to McRae.
Jessie Lee Sawyer and Juanita Peterson were injured in 1979 when a tractor-trailer truck owned by McDonald Petroleum Company collided with an automobile occupied by them. C.R. McRae contracted with Sawyer and Peterson to act as their attorney in the pursuit of legal remedies against McDonald Petroleum and Chevron U.S.A., Inc., for whom McDonald was allegedly acting as agent.
McRae is an attorney who lives in Mississippi, and is licensed to practice law in that state. He is not licensed to practice law in Alabama, however, where the accident occurred and where Sawyer and Peterson reside. McRae associated the Mobile, Alabama, firm of Silver and Voit, P.A., to act as local counsel. He then filed separate suits on behalf of Sawyer and Peterson in Mobile County Circuit Court. The suits were consolidated upon motion of the defendants. A summary judgment was granted in favor of Chevron, and the case was informally stayed pending an appeal of the summary judgment.
While the appeal was pending, Sawyer and Peterson discharged McRae as their attorney. Thereafter, McRae and Silver and Voit, P.A., filed a "motion to withdraw as counsel and to fix attorneys' liens." The trial court granted both McRae's and Silver and Voit's motions to withdraw. After several hearings on the motions to fix attorneys' liens, the court granted McRae a total lien of $10,000.00. This ruling was certified as final under Rule 54(b), A.R. Civ.P.
The personal injury claim was subsequently settled, with attorneys Gary Porter and Joseph Brunson representing Peterson and Sawyer, respectively. Peterson was awarded $150,000.00 and Sawyer was awarded $250,000.00. McRae appeals from the lien judgments, seeking an attorney's fee lien amounting to 80% of the attorney's fee awarded to Porter and Brunson. Sawyer and Peterson cross-appeal, asserting that McRae should get no fee at all.
*1008 Based on the assumption that he is entitled to an attorney's fee from Sawyer and Peterson for the work he performed on their cases, McRae would have this Court decide the proper method of fixing an attorney's fee lien when an attorney working under a contingent fee contract is discharged prior to the settlement of the case. The threshhold question which we must decide, however, is raised by Sawyer and Peterson on cross-appeal. The issue is whether an attorney who is not licensed to practice law in Alabama is thereby estopped from pursuing a claim for recovery of compensation on a contract with a client. We hold that McRae's failure to comply with the licensing statutes of this state renders his contracts with Sawyer and Peterson unenforceable. The trial court's judgments awarding liens to McRae in each case are therefore reversed.
Our court has never ruled that an attorney who is unlicensed in Alabama cannot enforce a contract entered into to provide legal services in this state. This Court has held, however, that members of other licensed occupations cannot enforce their contracts in regard to rendered services if they have not complied with Alabama licensing requirements.
In Hawkins v. League, 398 So. 2d 232 (Ala.1981), we ruled that an unlicensed general contractor could not recover the value of work performed for a land owner. The contractor had sued on a quantum meruit theory and was awarded a judgment of $10,000.00. He appealed, claiming that he was actually entitled to $27,724.75. We held that although the contractor proved his costs, he, nevertheless, could not recover.
398 So. 2d at 235. Thus, in Hawkins, not only did the unlicensed contractor not recover the $27,724.75 he wanted, but further, he lost the $10,000.00 he was originally awarded.
In deciding Hawkins, we relied on Cooper v. Johnston, supra, another general contractor licensing case. The plaintiff contractor in Cooper agreed to build a warehouse which cost in excess of $20,000.00, the amount for which a contractor was required by Alabama statute to have a license. The contractor sued to recover money owed him for the warehouse construction. The jury found for the unlicensed contractor, but the case was reversed on appeal. This Court first ascertained the purpose of the licensing statute as follows:
219 So. 2d at 395. The Court then cited Knight v. Watson, 221 Ala. 69, 127 So. 841 (1930), which held that contracts by unlicensed real estate brokers were illegal, void, and unenforceable, and Southern Metal Treating Co., Inc. v. Goodner, 271 Ala. 510, 125 So. 2d 268 (1960), which held that an engineer not properly licensed in Alabama could not enforce "a contract to engineer." Cooper then concludes in this way:
219 So. 2d at 396. Thus, the unlicensed contractor could not enforce the contract in issue in that case.
In Tucker v. Walker, 293 Ala. 589, 308 So. 2d 245 (1975), the Court summarized the Cooper holding in this manner:
308 So. 2d at 247. Under this analysis, if Alabama has an attorney licensing statute, the purpose of which is the regulation of the practice of law, then an unlicensed attorney should be estopped from enforcing a contract to provide legal services.
Chapter Three of Title 34 of the Code of Alabama 1975 regulates the practice of law in this state. It is evident that this statute serves as a police measure and not merely as a vehicle for raising revenue. Under the rationale of the above-cited cases, a lawyer unlicensed in Alabama cannot enforce a contract to provide legal services in this state. We can see no reason to treat the legal profession different from other licensed occupations in Alabama. Therefore, we hold that the court below erred as a matter of law in granting the liens to McRae. For this reason, the judgment below is reversed, and the cause remanded for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | April 12, 1985 |
b0bd7b44-4a16-46b0-86de-30001934a130 | All American Life and Casualty Co. v. Moore | 242 So. 2d 661 | N/A | Alabama | Alabama Supreme Court | 242 So. 2d 661 (1970)
In re ALL AMERICAN LIFE AND CASUALTY COMPANY
v.
Bob MOORE, Jr., as Judge of the Twenty-fifth Judicial Circuit of Alabama.
Ex parte ALL AMERICAN LIFE AND CASUALTY COMPANY.
6 Div. 634.
Supreme Court of Alabama.
December 23, 1970.
John Self, Hamilton, and Walter R. Byars, Montgomery, for petitioner.
Bill Fite, Hamilton, for respondent.
LAWSON, Justice.
This is an original petition for mandamus.
Dewey Lee Dillard brought suit on a policy of disability insurance in the Circuit Court of Marion County against All American Life and Casualty Company, a corporation, hereinafter referred to as the insurance company.
There was a jury verdict in favor of the plaintiff, Dillard, in the amount of $25,000. Judgment was in accord with the verdict. The judgment was rendered and entered on April 3, 1968.
*662 The defendant insurance company filed its motion for new trial on April 22, 1968, alleging therein as Grounds 9-15 error on the part of the trial court in refusing to give at the request of the defendant seven written charges. After an order continuing the hearing on the motion for new trial, the trial court on June 20, 1968, denied that motion.
The defendant insurance company perfected an appeal to this court on July 12, 1968.
During the preparation of the transcript of the record to be filed in this court the defendant discovered that, although the trial court did not give any of the seven charges, he failed to comply with those provisions of § 273, Title 7, Code 1940, which make it the duty of the trial judge, when he has refused to give a written requested charge, to write thereon the word "refused" and to write his name on the charge.
The trial judge was not aware of the fact that the defendant insurance company claimed that he had not complied with the aforementioned provisions of § 273, Title 7, supra, until September 17, 1968, when the insurance company requested him "to perform such duty as required by said Section 273 by writing on each of said charges `refused' and signing his name thereto" and further requested "that the record in this cause be amended nunc pro tunc to so reflect." After a hearing the trial judge denied that request.
The prayer of the petition for writ of mandamus reads as follows:
On October 9, 1968, this court entered the following order: "Let writ issue as prayed, returnable in thirty days from this date."
The alternative writ of mandamus which was issued out of this court takes cognizance of the fact that in the special prayer the petitioner did not pray that the respondent judge be required to sign his name to each of the seven charges after having marked each of them refused.
On October 9, 1968, there was issued out of the office of the clerk of this court, under the authority of the court's order heretofore quoted, an alternative writ of mandamus directed to the Honorable Bob Moore, Jr., as Judge of the Twenty-fifth Judicial Circuit of Alabama, which reads as follows:
This court recognized the fact that the special prayer of the petition did not seek an order requiring Judge Moore to sign each of the seven charges after having marked them refused. Consequently, the alternative writ of mandamus was molded under the general prayer so as to order Judge Moore to mark each of the seven charges refused and to sign his name to each of them or to appear and show cause in this court why the peremptory writ of mandamus should not issue.
On November 6, 1968, Judge Moore filed demurrer and answer to the petition for mandamus. The cause was submitted here on April 30, 1969. The delay in disposing of this matter is chargeable to the writer of this opinion and to no other member of the court.
In Paragraph 3 of its petition for the writ of mandamus the insurance company alleged in pertinent part as follows:
In Paragraph 6 of its petition, the insurance company alleged as follows:
In his answer, Judge Moore responded to the allegations of Paragraphs 3 and 6 of the petition for writ of mandamus as follows:
The rule is that where a judge's answer to an alternative writ of mandamus is not controverted, and is well pleaded, it will be taken as true and conclusive.Ex parte Mullins, 258 Ala. 665, 64 So. 2d 829; Ex parte Phillips, 266 Ala. 198, 95 So. 2d 77; East v. Todd, 284 Ala. 495, 226 So. 2d 153. The respondent's answer is not controverted.
The respondent judge in his answer has not unequivocally denied the averments of *665 Paragraphs 3 and 6 of the petition to the effect that the seven charges were presented to the respondent; that he "clipped" those charges together and wrote the word "refused" on the top charge but did not sign his name on that charge and did not write the word "refused" or sign his name on any of the other charges. He has averred, however, that he "has no independent recollection of the charges mentioned being submitted to him for `giving' or `refusing.'"
We are not certain of the interpretation to be given to the last sentence of Paragraph 3 of the respondent's answer. In that sentence the respondent states that it is his opinion and judgment that he did write the word "refused" on Charge No. 1, although he has "no independent recollection of doing so." But that sentence begins, "The words `refused,' Moore, Judge on charge number 1., etc." Those words standing alone may be said to show that the charge was not only marked "refused" but was signed by the judge. If that is the correct interpretation, we would not order the respondent to do that which he has already done. If the respondent did not intend to indicate that he wrote his name on Charge 1 after marking it refused, we would still not order him to affix his name to that charge for we would not order the doing of a useless act and Charge No. 1 is clearly bad. It is a "belief" charge and is not a request for the affirmative charge. We have frequently held that the refusal of such charges in civil cases does not constitute reversible error. The proper predicate in a civil case is "reasonably satisfied from the evidence."Ennis v. Whitaker, 281 Ala. 563, 206 So. 2d 367; Deamer v. Evans, 278 Ala. 35, 175 So. 2d 466; Atlanta Life Ins. Co. v. Stanley, 276 Ala. 642, 165 So. 2d 731; Pittman v. Calhoun, 231 Ala. 460, 165 So. 391; W. P. Brown & Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851, 129 A.L.R. 526; Cf. Atlantic Coast Line R. Co. v. Flowers, 241 Ala. 446, 3 So. 2d 21; Hatcher v. Camp, 279 Ala. 475, 187 So. 2d 232.
We come now to the question as to whether we should order the issuance of a peremptory writ of mandamus ordering the respondent judge to write the word "refused" and his name on each of those charges. We answer the question in the negative.
Mandamus is an extraordinary legal remedy, grantable only when petitioner show as a clear, specific legal right for the enforcement of which there is no other adequate remedy.Poyner v. Whiddon, 234 Ala. 168, 174 So. 507; Ex parte Brandon, 243 Ala. 610, 11 So. 2d 561; Ex parte Alphonse, 261 Ala. 177, 73 So. 2d 727.
We do not feel that the petitioner has shown a clear legal right to justify the issuance of the peremptory writ. True, the petition avers and the answer does not deny that the seven charges were not given, and in Paragraph 6 the petitioner avers categorically that the respondent judge refused to give those charges, but we think that categorical allegation is refuted by the averments of the answer to the effect that the respondent judge has no independent recollection of the charges being presented to him. It may well be that the charges were delivered to the respondent judge and that he placed a rubber band around them, as is alleged in the petition, and failed to give them to the jury. But it does not follow that he read the charges other than perhaps Charge No. 1 and "refused" them because they did not state correct principles of law or were not otherwise entitled to be given. We do not think that a trial judge should be ordered by this court to mark "refused" and to sign a charge which he has not actually refused after giving the charge consideration.
We agree with able counsel for petitioner that the mere writing of the word "refused" and the name of the judge on a requested charge is a ministerial act. But that act must follow an act judicial in character, the determination by the judge of the correctness or incorrectness of the requested *666 charge. We cannot say that petitioner has shown that the trial judge made such a judicial determination except perhaps as to Charge No. 1. The judge may have negligently or inadvertently failed to consider the other charges but if so, we do not feel that we would be justified on those grounds in ordering him to refuse the charges after the completion of the trial, the denial of the motion for new trial where the question was not raised, and after the perfection of an appeal to this court. We do not have in this case a situation where we could order the respondent judge to exercise his judicial discretion or judgment even though it be conceded that he failed to perform a duty which is judicial in character. See State of Alabama ex rel. Pinney v. Williams, 69 Ala. 311, 319.
If counsel who represented the petitioner in the trial court did not feel called upon to investigate to see whether or not his requested charges had in fact been properly refused before the case went to the jury, we feel that he should have at least made investigation concerning the failure of the trial court to give those charges before the filing of his motion for a new trial which, as we have shown above, averred that the trial court refused to give those charges.
The peremptory writ of mandamus is denied.
Writ denied.
MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur. | December 23, 1970 |
315424d8-8596-4e7d-a570-5facaa48f869 | Toler v. Baldwin County Savings and Loan Ass'n | 239 So. 2d 751 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 751 (1970)
James L. TOLER et al.
v.
BALDWIN COUNTY SAVINGS AND LOAN ASSOCIATION, a Corporation, et al.
1 Div. 640.
Supreme Court of Alabama.
September 24, 1970.
C. LeNoir Thompson, Bay Minette, for appellants.
Kenneth Cooper, Bay Minette, for appellees.
*752 MERRILL, Justice.
This is an appeal from a judgment in favor of the minor heirs of Joe C. Mosley in an action in equity seeking a declaratory judgment as to the disposition of insurance proceeds received by Baldwin County Savings and Loan Association from a credit life insurance policy on the life of Joe C. Mosley in the amount of $3,058.44.
There was a stipulation by the parties as to some of the facts and there is no conflict in the evidence. The facts were that Joe C. Mosley and his wife, Julia Mosley, obtained a loan from Baldwin County Savings and Loan Association for the purchase of real estate, giving a mortgage on the property. Joe Mosley made a payment each month to the Loan Association which included principal, interest and insurance premium on a credit life insurance policy which became effective on April 21, 1967. The insurance policy provided that in the event of the death of Mosley, the insurance company would pay the appellee Loan Association the balance due on the mortgage at time of Mosley's death.
On September 15, 1967, the Mosleys conveyed the mortgaged property to James L. Toler and his wife, Dorothy. The deed in that transaction provided that the grantees, the Tolers, were to assume the mortgage payments. These payments continued to include the insurance premium of the credit life insurance policy on Joe Mosley. During the transaction between the Tolers and Mosleys, none of the parties raised any question about the credit insurance policy. Apparently, it was totally overlooked.
The Mosleys were later divorced and Joe Mosley died intestate on October 6, 1968, without remarrying. The insurance company was notified of the death of Mosley; it sent a check to Baldwin County Savings and Loan Association for $3,058.44, the amount due on the mortgage at the time of Mosley's death. The Loan Association deposited the money in an escrow account. The Tolers claim the entire proceeds as do the minor surviving children of Joe Mosley.
On January 9, 1970, the equity court issued a decree awarding the proceeds to the surviving children of Joe Mosley. The court decree said that the assumption of indebtedness by Toler "was an obligation by him to pay the indebtedness, whatever it may be." To award the proceeds to the Tolers "would unjustly enrich them." From this award, this appeal was perfected.
Appropriate assignments of error contest the holding of the trial court. There was no contention made that the insurance company was not liable. It paid the policy and the proceeds are the subject of this litigation.
Alabama has long recognized that a purchaser who assumes the mortgage becomes the principal debtor and the original mortgagors merely sureties. Whittle v. Clark, 219 Ala. 161, 121 So. 530; First National Bank of Birmingham v. Hendrix, 241 Ala. 675, 4 So. 2d 407. See Annotation in 21 A.L.R. 439. Alabama also recognizes the rule that where a conveying mortgagor is later forced to pay the debt of the assuming grantee, his rights are subrogated to those of the creditor-mortgagee. Tennessee Valley Bank v. Sewell, 214 Ala. 362, 107 So. 834; McKleroy v. Dishman, 225 Ala. 131, 142 So. 41.
We have not found an Alabama authority on the particular point here involved, and no apt authority is cited in the briefs filed by the parties.
We have considered the following cases which are not exactly like the instant case, but present similar problems arising out of credit insurance on the life of the first debtor: Kincaid v. Alderson, 209 Tenn. 597, 354 S.W.2d 775 (1962); Betts v. Brown, 219 Ga. 782, 136 S.E.2d 365 (1964); Hatley v. Johnston, 265 N.C. 73, 143 S.E.2d 260 (1965); La-Rey, Inc. v. Kowalski, 433 *753 S.W.2d 530 (Tex.Civ.App.1968), and Tighe v. Walton, 233 Miss. 781, 103 So. 2d 8 (1958). All of these cases recognized the rights of the estate of the original debtor and most of them held for the estate, either on the ground that the subsequent grantee, the primary debtor, had no insurable interest in the life of the original debtor, or under the doctrine of subrogation.
Here, we have a case which will not often arise. The Association, the beneficiary in the credit life insurance policy, did not and does not insist that the proceeds of the policy pay the outstanding debt. Therefore, the only question to be resolved is a disposition of the claim of the Tolers as opposed to the claims of Mosley's heirs.
Mosley contracted for the insurance and that the premium payments would be included in his monthly payments on the debt. When the Mosleys sold to the Tolers, there was and is no suggestion of fraud, deceit, concealment or unfair dealing. The Tolers agreed to continue the monthly payments on the debt, even though the insurance premiums were included. The life insurance was written on the life of Mosley for the benefit of the Association, the beneficiary. The Tolers are not mentioned in the policy and no assigns of Mosley are suggested. The Tolers were strangers to the insurance except that they unwittingly, but willingly, paid the premiums for one year. The Tolers had contracted to assume the mortgage and pay it off. They had no legal claim for anyone else to discharge their obligation for them. To allow them to receive the benefits of the insurance policy would amount to unjust enrichment at the expense of the minor heirs of Mosley, especially since the Tolers did not even know of such a policy. The Tolers had no insurable interest in the life of Joe C. Mosley. As between Mosley's heirs and the Tolers, the equities are in favor of the former.
The trial court correctly found in favor of Mosley's heirs, and we think the result would have been the same under any of the authorities cited in this opinion.
Affirmed.
LIVINGSTON, C.J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | September 24, 1970 |
b330535a-daa2-456b-8b40-72673f7f2d39 | Whitson v. Baker | 463 So. 2d 146 | N/A | Alabama | Alabama Supreme Court | 463 So. 2d 146 (1985)
Larry Wayne WHITSON
v.
Charles BAKER and Troy Howton.
83-939-CER.
Supreme Court of Alabama.
January 11, 1985.
Larry Wayne Whitson, pro se.
J. Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for respondents.
Davis Carr of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for amicus curiae Alabama Defense Lawyers Association.
*147 FAULKNER, Justice.
The Eleventh Circuit Court of Appeals has certified the following question to us: "If a cause of action governed by a one year statute of limitations accrues while the plaintiff is incarcerated pending trial on a criminal charge, and six months later the plaintiff is imprisoned on the criminal charge for a term less than life, does Alabama Code [1975] § 6-2-8 operate to toll the statute of limitations?" 732 F.2d 856.
Larry Wayne Whitson was arrested and charged with first degree burglary in April 1978. Because he was unable to post bond, he was held in the Jefferson County jail at Bessemer until his trial. On September 15 and 16, while Whitson was in jail awaiting trial, certain incidents occurred which Whitson contends constituted a violation of his Eighth Amendment rights. Whitson was subsequently tried and was convicted of burglary and sentenced to twenty-five years' imprisonment. He is currently serving the sentence in an Alabama prison.
On December 1, 1980, Whitson filed an action in the United States District Court for the Northern District of Alabama against the warden and two sergeants assigned to the Bessemer jail. His complaint alleged that the incidents which took place in September 1978 were actionable under 42 U.S.C. § 1983. The district court ruled that Whitson's claim was time barred by the applicable statute of limitations, § 6-2-39(a)(5), Code of Alabama 1975. On appeal, the Eleventh Circuit Court of Appeals agreed that Alabama's one-year statute of limitations was applicable, but remanded the case to the district court for consideration of whether the statute of limitations was tolled by § 6-2-8(a), Code of Alabama 1975, which provides:
On remand, the district court ruled that the tolling statute was inapplicable. It reasoned that since the class of persons protected by the statute includes those who are "imprisoned on a criminal charge for any term less than life," a prisoner must have been convicted on a criminal charge and sentenced for a term less than life in order for the tolling statute to be applicable. Since Whitson had not yet been convicted when the alleged violations of his civil rights took place, the court ruled that § 6-2-8 was inapplicable. The case was again appealed to the Eleventh Circuit and the question of the applicability of § 6-2-8 was certified to us.
In addition to the parties' briefs, briefs were filed by the State of Alabama and on behalf of the Alabama Defense Lawyers Association. The primary thrust of the amicus briefs is that, because of certain policy reasons, the tolling statute should not be applied to prisoners' § 1983 actions. If we were to conclude that the statute is inapplicable to prisoners' § 1983 actions based on the public policy reasons enumerated by the amici, there would be no need to consider whether the statute applies to Whitson's particular situation. We will, therefore, discuss the public policy arguments first.
The tolling statute was enacted prior to the compilation of the 1852 Alabama Code. The state argued that the statute was passed because, at that time, prisoners were "civilly dead" and were unable to bring civil suits. Therefore, it argues, the intent of the statute was to preserve a prisoner's right to sue until he was released and could file the action. The state reasons that since prisoners are now allowed *148 to bring lawsuits, see e.g., Strickland v. State, 43 Ala.App. 311, 189 So. 2d 764 (1965); Whitehead v. Baranco Color Labs, Inc., 353 So. 2d 793 (Ala.1977), the reason for the rule no longer exists. The state provides prisoners with paper, envelopes, pencils, stamps, and legal research materials to aid them in filing civil rights actions. As a result, over 800 actions under § 1983 are filed against the state each year.
While it is difficult to determine the status of prisoners with regard to their right to file civil actions in 1852, we have been unable to substantiate the state's claim that prisoners sentenced to terms of less than life during that period of time were civilly dead. The concept of civil death was an outgrowth of the ancient English practice of "outlawry." See "History and Theory of Civil Disabilities", 23 Vand.L.Rev. 941 (1970). In the absence of statute, the concept of civil death has generally been denied in this country. Holmes v. King, 216 Ala. 412, 414, 113 So. 274 (1927). Alabama did have a civil death statute in force when the tolling statute was enacted, but it applied to those sentenced to life imprisonment. 1852 Code § 3637. See Title 61, § 3, Code of Alabama 1940 (Recomp.1958). The tolling statute, on the other hand, applies to those impributed for a term less than life.
It appears, therefore, that the civil death statute applied to a class of persons different from those the tolling statute applied to. Furthermore, the cases we have found dealing with civil death involved persons serving life sentences. See Holmes v. King, 216 Ala. 412, 113 So. 274 (1927); Quick v. Western Ry. of Alabama, 207 Ala. 376, 92 So. 608 (1922). It does not appear, therefore, that persons imprisoned for terms less than life were considered "civilly dead" under Alabama law at the time the tolling statute was enacted. If the civil death statute and the tolling statute had been co-extensive in their scope, one could make the argument that when the legislature repealed the civil death statute, Acts 1965, 1st Ex.Sess., p. 381, § 1, it intended to amend the tolling statute to eliminate its applicability to prisoners' suits. The tolling statute did not apply to the same class of persons as the civil death statute, however.
The Defense Lawyers Association also argued that public policy considerations militate against applying the tolling statute to § 1983 actions. It also pointed out that prisoners have free access to the courts to redress civil rights grievances and, therefore, are not disabled by their incarceration. In support of their argument that the tolling statute should not apply, they rely on Miller v. Smith, 431 F. Supp. 821 (N.D. Tex.1977), and Getz v. Bruch, 400 F. Supp. 1033 (E.D.Pa.1975), in which United States district courts refused to apply tolling statutes in § 1983 actions.
Although we are inclined to agree with the premise that, as a matter of public policy, prisoners should not be allowed to rely on the tolling statute in bringing § 1983 actions, we are, nonetheless bound by the statute.[1] If the tolling provisions were judge-made law instead of statutory law we would, no doubt, be inclined to refuse to apply them to prisoners' § 1983 suits. The legislature has not, however, seen fit to repeal or modify the tolling statute, even in the face of numerous civil rights actions filed by state prisoners. We do not express any opinion on the question of whether the tolling provisions of § 6-2-8 must be applied by federal courts in civil rights actions as a part of the applicable statute of limitations. Applicability of state statutes of limitations to civil rights actions in federal courts is not a matter of *149 compulsion, but "merely a matter of convenience." Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir.1974). We are not in the same position as the federal courts regarding the applicability of Alabama's statutes. Those statutes are binding on us. We are not charged with questioning the wisdom of the legislation. Our function is to interpret legislation and to confine it within constitutional bounds. Alabama Constitution, § 43; City of Birmingham v. Henry, 224 Ala. 239, 139 So. 283 (1931). The argument of the Defense Lawyers Association is one which should be addressed to the federal courts.
The defendants also made an argument regarding the applicability of the tolling statute to § 1983 actions. Their argument was based on the wording of the statute. Section 6-2-8 states that it is applicable to "actions enumerated in this chapter." Whitson's action is based on a federal statute, 42 U.S.C. § 1983. The defendants argue that since § 1983 actions are not provided for in the Alabama Code they are not "enumerated" within the applicable "chapter" within the meaning of § 6-2-8. In support of that argument, defendants rely on Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So. 2d 76 (1965), and Mewburn v. Bass, 82 Ala. 622, 2 So. 520 (1887).
Section 6-2-8 is part of Chapter 2 of Title 6 of the Code of Alabama 1975. Chapter 2 does not list causes of actions as such; it enumerates statutes of limitations. Both of the cases relied on by the defendants involve actions governed by periods of limitations not found in Chapter 2. Nicholson, supra, involved a wrongful death action based on Title 7, § 123, Code of Alabama 1940, which provided that the action must be brought within two years after the deceased's death. In response to plaintiff's argument that the tolling statute was applicable, this Court stated that Section 6-2-8 "relates to statutes of limitation, and not to actions, such as the present one, where the time within which the statutorily created cause of action is fixed in the act creating the right, and is of the essence of the right." 278 Ala. at 500, 179 So. 2d at 78. Similarly, in Mewburn, supra, this Court ruled that the tolling statute was inapplicable to a mortgagor's right of redemption. The two-year period provided for such actions is also contained in the statute providing for the action, not in the chapter enumerating statutes of limitations.
Unlike the statutes in Mewburn and Nicholson, § 1983 contains no limitations period. Federal courts look to state law to determine the applicable limitations period. Federal courts also apply the tolling statutes applicable to state statutes of limitations. Johnson v. Railway Express Agency, 421 U.S. 454, 464, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975). The applicable statute of limitations, § 6-2-39(a)(5), is contained in Chapter 2. Since the statute of limitations applicable to § 1983 actions is contained in Chapter 2, it appears to us that the requirement of "enumeration" in Chapter 2 contained in the tolling statute is satisfied with regard to § 1983 actions.
Having determined that the tolling statute is applicable to § 1983 actions, we must now address the question of whether Whitson is within the class of persons protected by the statute, which brings us to the question certified to us by the Eleventh Circuit Court of Appeals. If a cause of action accrues while a prisoner is being held in a county jail awaiting trial on a charge of first degree burglary and six months later he is sentenced to a term less than life, does § 6-2-8 apply?
The dispositive language in the statute is the phrase "imprisoned on a criminal charge for any term less than life." Although the terms "imprisoned" and "criminal charge" are generally broad enough to include someone being held in a jail awaiting trial, see, e.g., Austin v. Brammer, 555 F.2d 142, 143 (Ohio 6th Cir. 1977); Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424, 425 (Ky.1966); United States v. Patterson, 150 U.S. 65, 14 S. Ct. 20, 37 L. Ed. 999 (1893), those terms are qualified in this statute by the phrase "for any term less than life." The word "term" appears to us to refer to a period of *150 prescribed duration. See Black's Law Dictionary 1639, (rev. 4th ed. 1979). It appears, therefore, that the legislature intended for the statute to apply to prisoners who have been convicted and are serving sentences of less than life. See Ball v. Woods, 402 F. Supp. 803, 805, n. 1 (N.D.Ala. 1975). Since Whitson was being held pending trial when the action accrued, he does not fall within the class of persons protected by the statute. The fact that Whitson was later convicted and sentenced to a term less than life does not bring him within the operation of the tolling statute. An intervening disability does not bring a party within § 6-2-8. Street v. Shaddix, 197 Ala. 446, 73 So. 73 (1916).
Based on the foregoing, it is our opinion that a prisoner being held pending trial who is subsequently convicted and sentenced to a term of less than life does not fall within the class of persons protected by § 6-2-8, Code of Alabama 1975.
QUESTION ANSWERED.
JONES, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX and SHORES, JJ., concur in the result.
[1] In this case we hold that § 6-2-8 is inapplicable to Whitson's case because the action arose prior to Whitson's conviction and sentence. Although the statute is binding until it is amended or repealed we do not express any opinion as to how it affects the rights of prisoners who, unlike Whitson, fall within its scope. Given the fact that prisoners are not under a civil disability, in that they can in fact bring civil suits, it is difficult to predict the effect of § 6-2-8 which tolls prisoner's actions until "the termination of [their] disability." We await the ferreting out of that issue until it arises in an actual case or controversy. | January 11, 1985 |
3e2e6735-46c7-4fb7-8243-408c992d0914 | Ex Parte State | 465 So. 2d 474 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 474 (1985)
Ex parte State of Alabama.
(In re Delin SIMPSON v. STATE of Alabama).
84-307.
Supreme Court of Alabama.
February 1, 1985.
Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for petitioner.
F. Timothy Riley, Albertville, for respondent.
Certiorari to the Court of Criminal Appeals (8 Div. 23).
ADAMS, Justice.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion, 465 So. 2d 472. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | February 1, 1985 |
fd1faaaa-6959-4289-8b0c-e6c119b96956 | Ex Parte Shula | 465 So. 2d 452 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 452 (1985)
Ex parte Jonathan David SHULA
(Re: Jonathan David Shula
v.
State of Alabama).
Ex parte State of Alabama
(Re: Jonathan David SHULA
v.
STATE of Alabama).
83-800, 83-820.
Supreme Court of Alabama.
January 11, 1985.
*453 James H. Lackey, Mobile, for appellant/cross-appellee.
Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for appellee/cross-appellant.
ADAMS, Justice.
We granted these petitions for writ of certiorari to determine whether the Court of Criminal Appeals, 465 So. 2d 448, erred when it remanded a case to the trial court for a post-conviction evidentiary hearing on the admissibility of a confession. We hold that the post-conviction hearing is an improper procedure in this case and we, therefore, reverse the judgment of the Court of Criminal Appeals.
Jonathan David Shula was convicted in the Circuit Court of Mobile County of first degree rape. He was sentenced to twenty years' imprisonment in the state penitentiary. During the trial, a confession was introduced into evidence in which Shula admitted his guilt. The issue decided by the Court of Criminal Appeals was whether the state met its burden of proving that Shula made a voluntary, intelligent and knowing waiver of his constitutional rights, such proof being a prerequisite to the admissibility of the confession.
The Court of Criminal Appeals found that the state had not met this burden of proof and that the confession was, therefore, not properly admissible into evidence. The court's solution was to leave the conviction intact and remand the case for a post-conviction evidentiary hearing to determine whether Shula, in fact, made a valid waiver of his rights. We do not here review the conclusion of the Court of Criminal Appeals that the state did not meet its burden of proof on this issue. We are concerned only with the Court's directions for disposition of the case. Shula argues that the proper remedy is a new trial, not an after-the-fact hearing on the admissibility of evidence already entertained by the jury which convicted him. We agree.
A confession is not properly admissible into evidence in a trial without a showing by the state that the defendant knowingly, intelligently and voluntarily waived his or her constitutional rights before making the statement. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Confessions are presumed to be involuntary, placing the burden on the state to prove a valid waiver. North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965). As stated above, the Court of Criminal Appeals in this case found that the prosecution did not meet its burden of proof in Shula's trial. We now decide the proper means of rectifying this error.
In determining what is the proper method by which to dispose of the case, of crucial importance are the roles of the trial judge and the jury in deciding the voluntariness of the confession. In Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the United States Supreme Court declared unconstitutional the "New York rule" governing this determination of voluntariness. The rule allowed the trial judge to conduct a preliminary review of the evidence regarding the confession and exclude it only if under no circumstances the confession could be deemed voluntary. Otherwise, the confession was admitted into evidence and the jury determined both voluntariness and truthfulness. In other words, "if there [was] a factual conflict in the evidence as to voluntariness over which reasonable men could differ, the judge [left] the question of voluntariness to the jury." 378 U.S. at 414, 84 S. Ct. at 1801 (Black, J., dissenting).
The Supreme Court held that it was a violation of the Due Process Clause of the Fourteenth Amendment to allow the convicting jury to determine both the voluntariness and the credibility of a confession. In footnote 19 of the majority opinion, the Court stated:
378 U.S. at 391, 84 S. Ct. at 1788. Although Jackson struck down the New York rule, other rules regarding the voluntariness of confessions were apparently approved.
Under the "Wigmore" or "orthodox" rule, the "judge hears all the evidence and then rules on voluntariness for [the] purpose of admissibility of [the] confession; [the] jury considers voluntariness as affecting weight or credibility of [the] confession." Jackson, 378 U.S. at 411, 84 S. Ct. at 1799 (Black, J., dissenting). The Court distinguished the orthodox rule from the questionable New York rule by noting that under the orthodox rule
378 U.S. at 379-380, 84 S. Ct. at 1782. Under Jackson v. Denno then, separate triers of fact must determine the voluntariness of a confession for purposes of admissibility on the one hand and the credibility of a confession on the other hand, with voluntariness being a factor permissibly considered as bearing on credibility. For this reason, the New York rule is unconstitutional, while the orthodox rule will stand.
The voluntariness of confessions is determined under the orthodox rule in Alabama. In Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965), this Court said:
278 Ala. at 161, 176 So. 2d at 855. Further, in Lewis v. State, 295 Ala. 350, 329 So. 2d 599 (1976), our Court said the following:
295 Ala. at 351, 329 So. 2d at 600. Additionally, subsequent to Jackson v. Denno, our Court interpreted the effect of that decision as follows:
Duncan v. State, 278 Ala. 145, 165, 176 So. 2d 840, 859 (1965).
In Lewis v. State, supra, the Court held that after the trial judge has determined *455 in camera the voluntariness of a confession, the prosecution must lay the proper "Miranda" and "voluntariness" predicates in front of the jury before presenting the confession at trial. After analyzing the orthodox rule and its application in Alabama, the Court said:
295 Ala. at 352, 329 So. 2d at 601. Since the jury considers voluntariness as bearing on credibility, the jurors must hear evidence concerning voluntariness/credibility just as the trial court hears evidence concerning voluntariness/admissibility.
In the present case, the state did not meet its burden of showing that Shula made a knowing, voluntary and intelligent waiver of his Miranda rights. A post-conviction evidentiary hearing will not remedy the situation, however. Since the jury which convicted Shula was entitled to hear evidence concerning the circumstances in which the confession was obtained, as bearing on voluntariness, which could then be used to weigh the credibility of the confession, a post-conviction evidentiary hearing is inadequate. This is so because the convicting jury will not have heard the evidence presented at the hearing. The proper remedy is a new trial in which the jury hears the evidence as to the voluntariness of the confession. Accordingly, we reverse the judgment of the Court of Criminal Appeals.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur. | January 11, 1985 |
bffe113e-7fda-4328-ba72-77eb327e88e2 | Bailey v. Collier | 465 So. 2d 381 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 381 (1985)
Michael BAILEY
v.
J.V. COLLIER, individually, and Charles Daugherty.
GLIDDEN COATINGS AND RESINS, INC., A DIVISION OF SCM CORPORATION
v.
J.V. COLLIER and Charles Daugherty.
83-879, 83-912.
Supreme Court of Alabama.
February 8, 1985.
*382 Joseph M. Brown, Jr. and Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, A. Neil Hudgens, Michael S. McGlothren, and Edward L. Lasseter, Jr. of Brown, Hudgens, Richardson, Mobile, for Appellant Glidden Coatings & Resins, Inc.
Robert H. Smith and Lawrence M. Wettermark of Collins, Galloway & Smith, Mobile, for appellees.
MADDOX, Justice.
These are appeals from summary judgments granted in favor of defendants/cross-defendants in a personal injury action.
Bailey, plaintiff, an employee of J.V. Collier Shipbuilding, Inc., was injured when paint vapors ignited while he was painting inside a "mud tank" aboard the vessel "Golden Condor," which was under construction at his employer's shipyard. For some time thereafter he received compensation payments under the Longshoremen and Harbor Workers' Compensation Act (L.H.W.C.A.), until he notified his employer's compensation carrier that he wished to have his compensation classified as being received under the Alabama Workmen's Compensation Act rather than the L.H.W. C.A. The reclassification was made and the benefits continued.
Bailey then brought suit charging J.V. Collier, the owner of J.V. Collier Shipbuilding, Inc., and Charles Daugherty, who was Bailey's foreman at the time of the injury, with negligent supervision. He also charged Glidden Coatings & Resins, Inc., the manufacturer of the paint, with breach of warranty and liability under the Alabama Extended Manufacturer's Liability Doctrine (A.E.M.L.D.).
Glidden cross-claimed, seeking indemnity from Collier and Daugherty, asserting that they were actively negligent in failing to provide adequate safety equipment at the jobsite and that their negligence was the proximate cause of Bailey's injuries.
Defendants/cross-defendants, Collier and Daugherty, moved for summary judgment on both the initial claim and the cross-claim. Summary judgment was granted as to both. The trial court held that the initial claim was barred by the exclusivity provision of the L.H.W.C.A., 33 U.S.C. § 933(i), which prohibits suits against co-employees. In addition, the trial court held that the cross-claim failed to present a genuine issue of material fact. The court certified its judgments pursuant to Rule 54(b), Ala.R. Civ.P. Both the plaintiff, Bailey, and the cross-plaintiff, Glidden, appeal here.
The trial court correctly granted summary judgment against Bailey. As the trial court stated and as this Court recently held in Fillinger v. Foster, 448 So. 2d 321 (Ala.), cert. denied, ___ U.S. ____, 105 S. Ct. 223, 83 L. Ed. 2d 153 (1984), the exclusivity provisions of 33 U.S.C. § 933(i) pre-empt negligence suits by land-based maritime workers against co-employees. It is undisputed that Bailey is a maritime employee covered by the L.H.W.C.A. and it is further undisputed that Fillinger, supra, is controlling. In fact, rather than arguing the inapplicability of Fillinger, Bailey simply argues that this Court should reconsider and overrule its opinion in that case. At the time Bailey's brief was filed, he was correct in stating that Fillinger was pending in the Supreme Court of the United States on petition for certiorari; however, on October 1, 1984, that court denied certiorari. *383 ___ U.S. ____, 105 S. Ct. 223. Consequently, we follow Fillinger and affirm the summary judgment granted against Bailey.
We also hold that the trial court did not err in granting summary judgment in favor of Collier and Daugherty on Glidden's cross-claim against them. The factual setting of this case is strikingly similar to the factual setting in Sherman Concrete Pipe Machinery, Inc. v. Gadsden Pipe Co., 335 So. 2d 125 (Ala.1976). That appeal involved a final judgment dismissing a third-party claim by the manufacturer of an allegedly defective product against another party who the manufacturer alleged was actively negligent in causing the injury to the plaintiff.
The facts of that case, as set out in this Court's opinion, were as follows:
This Court opined:
Although we recognize that Sherman Concrete Pipe, Inc. is distinguishable from the case sub judice because indemnity therein was sought against an employer rather than, as here, against a co-employee, we nevertheless believe the rule stated in the last paragraph of that opinion to be applicable here. According to that rule, a manufacturer, such as Glidden, who markets a product not reasonably safe when put into the stream of commerce is negligent as a matter of law and, as a matter of law, may not seek indemnity against those whose concurrent negligence may have precipated an injury resulting from use of that product. Therefore, the trial court did not err in granting summary judgment against Glidden's cross-claim seeking indemnity.
AFFIRMED.
TORBERT, C.J., and SHORES and BEATTY, JJ., concur.
JONES, J., concurs in the result. | February 8, 1985 |
9b2ec221-3754-4406-a516-c475b0d86941 | Meeks v. Town of Hoover | 240 So. 2d 125 | N/A | Alabama | Alabama Supreme Court | 240 So. 2d 125 (1970)
J. Paul MEEKS, as Judge, etc.
v.
TOWN OF HOOVER, Alabama, etc.
6 Div. 758.
Supreme Court of Alabama.
October 15, 1970.
*126 Irvine C. Porter, Birmingham, for appellant.
Beavers, Shannon, Harrison & Odom, Birmingham, for appellee.
McCALL, Justice.
This is an appeal by Honorable J. Paul Meeks, Judge of Probate of Jefferson County, Alabama, from a final decree rendered by the circuit court in a declaratory judgment suit, in equity, which was favorable to the complainant, Town of Hoover, a Municipal Corporation. The litigation came about by the filing of a petition with Judge Meeks to incorporate a municipality known as Green Valley, in Jefferson County, Alabama, pursuant to Tit. 37, § 10, Code of Alabama, 1940, as amended.
The incorporation proceeding culminated in this court's holding in the case of Watts v. Town of Green Valley, 282 Ala. 555, 213 So. 2d 398, on a direct appeal from orders of Judge Meeks that the appellant was without jurisdiction to act in the matter of the incorporation, because one of the necessary condition precedents to establish his jurisdiction was proved to be lacking in that a party signing the petition for incorporation was not a qualified elector as required by the statute, Tit. 37, § 10. After vacating his orders, looking toward an incorporation of the municipality, Judge Meeks proceeded with entertaining an amendment to the original petition which seeks to overcome the jurisdictional deficiencies and prays that another election date be set to determine whether the town shall be incorporated. Thereupon, the Town of Hoover, a duly incorporated and existing municipality, filed its bill in equity in the present case against the probate judge for a declaratory judgment, alleging among other matters that the territory sought to be incorporated consists of lands which lie within three miles of its corporate limits; and, further, that the proceeding to incorporate has been declared void. The bill, further alleging that the appellant intends to hold another election pursuant to the amended petition, seeks to enjoin him as probate judge from proceeding with the incorporation under the amended petition.
The appellant contends that the Supreme Court holding in Watts does not bar him from entertaining the proposed amendment to the petition to incorporate, which would correct the jurisdictional deficiencies. The appellant insists that he retains jurisdiction to entertain an amendment to the petition as long as the proceedings are in progress that would overcome these jurisdictional deficiencies. This amendment, if effective, would strike from the property description in the original petition for incorporation, six parcels of land extending across the quarter-quarter section lines so as to make the incorporated area more compact and homogeneous. It *127 would eliminate the disqualified elector as well as other persons named residing in the stricken area. It would accurately describe the reduced amended area and substitute a corrected map for that attached to the original petition. The appellant further contends that such an amendment would relate back to the time of the filing of the original petition, Tit. 7, § 239, Code of Alabama, 1940. So the question follows: Might those who are qualified and who filed the original petition, amend in the manner stated, so that the requirements, essential to land area and parties will be met? The bill seeks a determination of this and other issues raised under the judgment of this court in Watts. We think such a bill presents a subject, cognizable for declaratory relief. In Avery Freight Lines v. White, 245 Ala. 618, 624, 18 So. 2d 394, 399, the court said:
In the related case of Watts v. Town of Green Valley, 282 Ala. 555, 213 So. 2d 398, supra, this court held that, since one of the necessary four alleged electors residing on one of the quarter-quarter sections of the territory included in the incorporated area, who signed the petition for incorporation as a resident pursuant to the incorporation statute, actually was not a qualified elector at the time he signed the petition, as shown on the face of the record, the probate judge should have granted Watts' motions seeking to vacate the probate Judge's orders for the reason that they were void because he lacked jurisdiction in the matter. The orders referred to and ordered to be vacated and set aside, were those (1) directing the holding of an incorporation election to determine whether the Town of Green Valley should be incorporated and the election held pursuant thereto, (2) the order of incorporation of Green Valley entered on April 15, 1968, and (3) the order of April 15, 1968, ordering an election of a mayor and five councilmen of the Town of Green Valley. This court said in part in Watts, supra:
The appellant urges us to reconsider the Watts decision and overturn it as being erroneous and contrary to all previous decision law of this state on the issues at hand. The appellant advances no substantially new or different reason or authority for our overruling Watts from what has already been considered by the court on that appeal. We are not disposed therefore to reverse our decision in Watts.
In the case of Bridges v. City of Biloxi, 250 Miss. 717, 168 So. 2d 40, the Supreme Court of Mississippi held where a statute required that the petition for incorporation of a municipality be signed by at least two thirds of the qualified voters in the territory to be incorporated, that once the petition is filed, amendments thereafter cannot be made so as to include the names of additional petitioners.
*128 We do not think that petitioners can do indirectly, that which they cannot do directly in order to give the petition validity. If there was originally an insufficiency of bona fide electors to the petition, which cannot be remedied by adding additional electors, then neither can the fault be remedied by reducing the land area to be incorporated in order to gain the requisite number of qualified electors in each of the quarter-quarter sections.
In McQuillin Municipal Corporations, 3rd Ed., Vol. I, § 3.27, p. 560, this rule is stated:
To the same effect is a statement in 62 C.J.S. Municipal Corporations § 17, p. 96, where it is stated:
71 C.J.S. Pleading § 288b, p. 638, jurisdictional matters, gives the following statement:
Then in State ex rel. Lantz v. Board of Trustees of Franklin Tp., Franklin County, 147 Ohio St. 256, 70 N.E.2d 890, the court said:
The assent of those, required under Tit. 37, § 10, Code of Alabama, 1940, was obtained and given as to those matters embraced in the original written petition by their signing it. Such assent was to the petition as originally filed, not in its amended form. The proposed amendment would change the property description by reducing the area of the territory proposed to be incorporated, as well as by striking some of the petitioning parties. In this changed state, the petition lacks the assent in writing of those required by law to be signatories.
Further we are of the opinion that, when it was ascertained that the incorporation proceedings were void, because of the failure to comply with one of the necessary condition precedents, the probate judge was without jurisdiction to continue or go on with what had been begun toward incorporation, Reagan v. Rhodes, 264 Ala. 39, 84 So. 2d 647, save to end the void proceedings. If the proceeding was void, when that fact was brought to light, it was the duty of the probate judge to so declare *129 it as a matter of law and end the proceedings. Hartigan v. Hartigan, 272 Ala. 67, 128 So. 2d 725; Watts v. Town of Green Valley, supra. The orders were void, because the series of steps being taken toward accomplishing incorporation were void. These proceedings were void because the probate judge lacked jurisdiction in the matter, and the judge lacked jurisdiction because one of the necessary parties to the petition was not a qualified elector as required by the statute, Tit. 37, § 10, Code of Alabama, 1940, as amended. If the judge lacked initial jurisdiction of the proceedings, then he not only lacked jurisdiction to enter the orders in question, but he also lacked jurisdiction to proceed in any manner with the steps to be followed for incorporation. The cause could not therefore remain in progress. We are of the opinion and hold that when the probate judge entertained the proposed amendment he was proceeding with a void incorporation proceeding which he lacked jurisdiction to do. For the reasons stated, we are of the opinion that the original petition for incorporation could not be amended, and that the probate judge was without authority to entertain the amendment or proceed further with the petition for incorporation.
In view of the conclusions we have reached in this case and our holding in Watts, we see no reason to pass on the constitutionality of Act No. 780, Acts of Ala., Regular Session 1967, p. 1640, approved September 9, 1967, as being a local act, adopted in violation of § 106 of the Constitution of Alabama, 1901. This court declines to pass upon the constitutional validity of legislative enactments, unless the determination of the questions and rights before it requires such a decision. State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 So. 294. The application of this act would restrict the operation of Tit. 37, § 10, Code of Alabama, 1940, as amended, in counties of 600,000, or more, so as to exclude from the incorporation any territory lying within three miles of the corporate limits of any existing incorporated town or city. Neither do we deem it necessary to decide whether or not in this case Act 780 has retrospective, or prospective application only.
The appellant contends that Act No. 514, Acts of Ala., Regular Session 1967, p. 1238, approved September 7, 1967, the so called validation statute, should be applied in this case. The effect of this act is to validate an incorporation otherwise ineffectual, because of some irregularity such as the failure to comply with the requirement respecting signatures to the petition for incorporation in all cases prior to its effective date, where there has been an attempt to organize the inhabitants of a territory as a municipal corporation and the judge of probate has made an order that the inhabitants are incorporated as a town or city. The judge's order of incorporation in this case, which was made on April 15, 1968, and later held void by the Supreme Court in Watts, had not been made and entered as of the effective date of the validation act, Act 514, which was on September 7, 1967. Therefore a necessary prerequisite upon which we could apply Act 514, supra, was nonexistent, when the act became effective. Consequently, the act can have no application to the case at hand. The appellant argues that the order of incorporation, upon which the validating effect of 514 would have become operative was prevented by the withholding of the census report from September 1, 1967, to October 4, 1967, in violation of the probate judge's order of July 27, 1967, ordering the enumeration and its report, when completed. There was evidence that the census or enumeration was completed by September 1, 1967, and appellant contends that had it been promptly reported to him, the incorporation order would have been entered thereupon, and not later than September 5, 1967, in time for it to have enjoyed the curative and validating effect of Act 514. Suffice it to say that a variance exists between appellant's *130 assessment and conclusion of the cause of the delay in filing the census or enumeration and the appellee's version. While the judge's order of July 27, 1967, directs the enumerators to report the result when the enumeration has been completed by them, no specific date was fixed in the order by the appellant, nor were any steps taken or efforts made between July 27, 1967, and September 7, 1967, to require its filing. If at any time it appeared that the report was being unduly delayed, then it seems that such would have prompted timely action on the part of those interested, especially, any of those who had knowledge of the report being completed, but not filed. We find no error in the trial court's refusal to enter an order of incorporation nor do we deem it appropriate to do so.
Where, on a direct appeal, the appellate court has held that the probate judge, in the exercise of his limited and special jurisdiction in the cause, was without jurisdiction of the subject matter necessary to proceed with the incorporation proceedings, because such were void, and the judge, being thus without jurisdiction, attempts to exceed his authority by pursuing the void incorporation proceeding, entertaining a purported amendment to the defective petition, and manifesting an intention to allow the amendment and to call another incorporation election, we think prohibition is the proper remedy. It has been held that where a judge or court undertakes to act in a manner in which he or it has no jurisdiction, prohibition is the proper remedy. Craddock v. Oliver, 23 Ala.App. 183, 123 So. 87, cert. den. 219 Ala. 607, 123 So. 88.
It is our opinion that a writ of prohibition directing the appellant to proceed no further in the pending cause is the proper remedy, rather than injunctive relief. This court has the power and authority to exercise a general superintendence over inferior jurisdictions, § 140, Constitution of Alabama of 1901; Tit. 13, § 17, Code of Alabama, 1940, and, consequently has the authority, as a court of original jurisdiction to issue such remedial and original writs as are necessary to enable it to accomplish that object. Therefore unless the appellant dismisses this cause in the probate court within fifteen days after receiving the mandate of this court, a writ of prohibition will be issued by this court, directed to the appellant, as Judge of Probate *131 of Jefferson County, Alabama, to proceed no further in the cause entitled In the Matter of Incorporation of the Town of Green Valley, Alabama, Vincent Alfano, et al., Petitioners, In the Probate Court of Jefferson County, Alabama. Case No. 61179.
The final decree of the Circuit Court of Jefferson County, Alabama, In Equity, on appeal in this case, is reversed and rendered to the extent that the writ of injunction, issued by it, is dissolved. The final decree is otherwise affirmed.
Affirmed in part, reversed and rendered in part, and writ of prohibition to issue conditionally.
SIMPSON, COLEMAN, BLOODWORTH, and MADDOX, JJ., concur. | October 15, 1970 |
cec0d1d9-aeed-4bac-a209-2ead8a4ca625 | Lott v. Keith | 241 So. 2d 104 | N/A | Alabama | Alabama Supreme Court | 241 So. 2d 104 (1970)
W. O. LOTT et al.
v.
Pearl KEITH, as Admrx. Ad Litem, etc.
1 Div. 636.
Supreme Court of Alabama.
October 22, 1970.
Rehearing Denied December 3, 1970.
Chason, Stone & Chason, Bay Minette, for William O. Lott, and others.
C. LeNoir Thompson, Bay Minette, for Fred A. McKenzie and John McKenzie.
Wilters & Brantley, Bay Minette, for appellee.
MERRILL, Justice.
James E. Keith, Jr., complainant-appellee, filed a bill to quiet title to property known as Nelson's Point. There were two different claimants, the McKenzies and the Lotts. The trial court decided in favor of Keith and both the McKenzies and W. O. Lott appealed.
The case was tried ore tenus before the trial court. Where evidence is heard orally before the trial court, the finding of the court has the effect of a jury's verdict and will not be disturbed on appeal, unless plainly erroneous, whether in law or equity. And we must affirm the trial court's decree if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Norton v. Norton, 280 Ala. 307, 193 So. 2d 750.
But appellant Lott argues that this rule does not apply in this case because the depositions of himself and three other witnesses, *105 taken in a 1943 case, were also before the court. We cannot agree. We have said that where a decree is rendered on evidence taken ore tenus, or partly so, and the trial court has the advantage of seeing and hearing the witnesses, this court will not disturb the court's conclusion unless it is plainly contrary to the weight of the evidence. Albright Equipment Co. v. Waddell, 284 Ala. 329, 224 So. 2d 878; McBrayer v. Smith, 278 Ala. 247, 177 So. 2d 571; Hackett v. Cash, 196 Ala. 403, 72 So. 52.
We examine first the McKenzie claim. The trial court found that the only possession they ever had was that of tenants at will as gratuitous tenants of complainant; that there was no scrambling possession; that the only record title they ever had was a deed from Fred McKenzie and wife Fannie to Fred, Jr. and John McKenzie, executed in 1960, and that Fred McKenzie (Sr.) had disclaimed any interest in the land by a written instrument in 1942.
The main thrust of the McKenzie's argument is that Keith failed to make out a prima facie case, and therefore the jurisdiction of the trial court was destroyed and it could not determine the title to the land. Most of the cases cited and quoted in support of this contention have been overruled. In Chestang v. Tensaw Land & Timber Co., 273 Ala. 8, 134 So. 2d 159, we specifically overruled Crump v. Knight, 250 Ala. 393, 34 So. 2d 593, and also said that the "jurisdiction destroyed" statements in eight cases "should be disregarded." McKenzie cited several of those cases. We agree with the trial court that the McKenzie claim should not prevail.
We come now to the Lott claim. The trial court found that W. O. Lott's grantor had no actual possession of the land when he gave Lott a deed; that neither Lott nor his predecessor in title had any actual possession of the land in question for "the past 25 years."
The property was conveyed to Marion S. Adams in 1928. A case involving this same land was started in 1943 by one Ralph G. Nelson against Marion S. Adams and depositions of Lott and the three witnesses were taken in that case, but the case was not concluded and terminated. The property was sold to one Ed Rogers in the name of Marion S. Adams for nonpayment of taxes in 1941.
It is true that W. O. Lott produced at trial a deed from Marion S. Adams and wife to him, dated July 21, 1954. This deed was not recorded. Also introduced at the trial was a deed to W. B. Lott, W. D. Lott, Agnes Lott Peak and Elizabeth Lott Unger, dated September 3, 1963, also unrecorded. (W. O. Lott and the four grantees of the deed are included in our designation of "the Lotts.")
W. O. Lott testified in the instant case that he purchased the lands in question in the name of Marion S. Adams in 1928 or 1929, that he put the father of appellee Keith in temporary possession, that his tenant, Ralph G. Nelson, the plaintiff in the abandoned suit, was next in possession and he stayed in possession under Lott until 1940, that after Nelson left he (Lott) had had no actual possession of the property. Lott also testified that he had turned his property over to his children within the last 20 years, and that he thought they had paid taxes on it. On cross-examination, the following occurred:
"Q. You never took a deed from Marion Adams?
We finally consider Keith's claim. He first knew the land as a boy in 1912, moved to the community in 1918, and lived there since. He had lived about one mile from the property before he bought it in 1953, but since then he had lived within a quarter of a mile of it. His title was based upon a tax sale of the property in 1937, and bid in for the State, a tax deed to James T. Watts, dated May 20, 1942, a quitclaim deed from Watts to W. Y. Brame, May 25, 1942, and a quitclaim deed from Minnie D. Brame to appellee, J. E. Keith, Jr., dated September 9, 1953, and recorded September 9, 1953. Keith assessed and paid taxes on the property.
As to the McKenzie contention, that the court did not have jurisdiction, because the appellee did not show peaceable possession, we have held that what constituted peaceable possession must be left for determination on the facts of each particular case. Webb v. Griffin, 243 Ala. 468, 10 So. 2d 458; Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202.
The trial court found that:
Although conflicting, there was evidence to support these findings. The court decreed that Keith had fee simple title to the lands.
Under the evidence, Keith was an innocent purchaser for value under Tit. 47, § 120, Code 1940, which provides:
In Lawton v. Stillwell, 275 Ala. 358, 155 So. 2d 311, we said:
Appellant Lott did not carry this burden.
The only recorded deed from 1953 to the date of the filing of suit, January 4, 1967, was from Brame to Keith in 1953. The fencing of the property was notice to anyone inspecting the land and the recorded deed and the tax assessments were notice to anyone desiring to check the records.
Under our original proposition cited from Norton v. Norton, 280 Ala. 307, 193 So. 2d 750, we cannot hold that the trial court erred in its decree.
Affirmed.
HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur. | October 22, 1970 |
09e612e6-daac-4cbe-8fd3-52cd3ef0895f | Central of Georgia Railway Company v. Phillips | 240 So. 2d 118 | N/A | Alabama | Alabama Supreme Court | 240 So. 2d 118 (1970)
CENTRAL OF GEORGIA RAILWAY COMPANY, a Corporation
v.
Willis W. PHILLIPS.
6 Div. 504.
Supreme Court of Alabama.
September 10, 1970.
Rehearing Denied October 29, 1970.
Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellant.
Rives, Peterson, Pettus & Conway, Birmingham, for appellee.
MERRILL, Justice.
This appeal is from a judgment in favor of appellee in the amount of $60,000.00 in *119 an action brought under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S. C.A. § 51 et seq. A motion for a new trial was overruled.
The complaint was in two counts. Count One alleged, in substance, that on April 7, 1962, the plaintiff was driving a truck owned by the defendant and was caused to become drowsy, gassed, and to go to sleep as a proximate consequence of the truck's defective condition in allowing exhaust fumes, motor fumes and gas fumes to escape into the cab of the truck. This count charged negligence on the part of the officers or agents of the defendant or a defect or insufficiency in the machinery due to the negligence of the defendant. The plaintiff alleged that he ran off the road while driving the truck on U.S. Highway 319 in Johnson County, Georgia, at a point approximately 11 miles north of Wrightsville, Georgia.
Count Two claimed negligence on the part of the defendant in failing to provide the plaintiff a reasonably safe place to work.
Defendant filed a "Motion to Dismiss," asking that the suit be dismissed by the court on the doctrine of forum non conveniens. This motion was subsequently amended, pointing out in more detail the reasons why the defendant felt the case should be dismissed. The presiding circuit judge entered an order on October 5, 1965, in which, after citing cases listed later in this opinion, he declined to enter upon a consideration of the issues presented by the amended motion to dismiss.
The main point in this appeal is raised by the first three assignments of error which charge that the court erred in overruling the motion to dismiss. That motion, based on the forum non conveniens doctrine, alleges that the involved accident took place in Georgia; that the plaintiff is a resident of Georgia; that the defendant is a Georgia corporation; all the witnesses reside in Georgia; that the action arises under the Federal Employers' Liability Act; that Birmingham and Alabama have no connection with the lawsuit; that the trial of the case would assist in congesting an already congested court docket; that Jefferson County is not a convenient forum in which to try the case and that the trial would be inconvenient, expensive, vexatious and oppressive to the defendant and its witnesses.
The same point presented here was raised in Ex parte State ex rel. Southern Railway Company, 254 Ala. 10, 47 So. 2d 249. The court cited our statute, Tit. 7, § 97, Code 1940, which provides:
The court also said:
The appellant suggests that the case of State of Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1, 71 S. Ct. 1, 95 L. Ed. 3, provides a platform from which our decision in Ex parte State ex rel. Southern Railway Co., 254 Ala. 10, 47 So. 2d 249, should be reexamined as to whether the doctrine of forum non conveniens is to be recognized. The Mayfield case merely allows the state courts to determine whether or not the doctrine will apply in F.E.L.A. cases. The Missouri Supreme Court, after remandment in Mayfield, supra, also held that forum non conveniens would not be available in Missouri in F.E.L.A cases. State of Missouri ex rel. Southern Railway Co. v. Mayfield, 362 Mo. 101, 240 S.W.2d 106.
We are not convinced that we should, by judicial edict, change a statute which has been the law for over sixty years and has weathered attempts to modify or repeal it in the legislature, including one proposed amendment to the Constitution (Act No. 205, Acts of Alabama 1951, Vol. 1, p. 467) which was defeated by the people in 1951.
Assignment 7 charges error in overruling appellant's objection to the following statement made by plaintiff's attorney in closing argument to the jury: "If a railroad man has got to try his case on the testimony of officials he is not going to win his case."
Some of plaintiff's witnesses testified that they had driven the truck which plaintiff was driving when he was injured, and each of them testified that fumes were present in the cab when they drove and two testified that the fumes made them drowsy. The man in charge of the diesel shop, the general foreman and a locomotive foreman testified they had driven the truck and had not noticed any fumes. These last three were evidently the "officials" at whom the statement was directed.
*121 We think a quotation from the record will be helpful for understanding. We begin with one sentence of the argument prior to the one which brought forth the objection:
"MR. SADLER: I object to that.
The following statement is made in Alabama Great Southern Railroad Co. v. Gambrell, 262 Ala. 290, 78 So. 2d 619, and Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So.2d 110:
In the matter of an attorney's argument, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings. To justify a reversal, we must conclude that substantial prejudice has resulted. Occidental Life Ins. Co. of Cal. v. Nichols, 266 Ala. 521, 97 So. 2d 879.
Here, counsel was arguing that the men who drove the truck regularly were better witnesses as to fumes in the cab than the supervisory personnel who could be biased because of their positions. We perceive no prejudicial error in the trial court's ruling under the authorities cited supra.
The only other argued assignment of error, No. 9, is that the motion for a new trial was improperly overruled because the verdict was excessive, which was ground 9 of the motion.
Considering the elements of damage in the case and remembering that the authority vested in the courts to disturb the verdict of the jury on the ground of excessive damages is one which should be exercised with great caution and discretion, we are constrained to hold that the ruling of the court to set aside the verdict should be upheld. We are unable to say that the amount of the verdict is the result of passion, prejudice, partiality or corruption on the part of the jury. We do not feel authorized to set the verdict aside especially in the face of the refusal of the trial judge to do so after he heard the evidence *122 and saw the plaintiff before him. Louisville & Nashville Railroad Co. v. Gothard, 273 Ala. 424, 142 So. 2d 712; Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288; Central of Georgia Railway Co. v. White, 175 Ala. 60, 56 So. 574.
No reversible error has been presented.
This case was originally assigned to another member of the court and was recently reassigned to the author of this opinion.
Affirmed.
LIVINGSTON, C.J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | September 10, 1970 |
68bed6e6-8b98-4c5b-8c8a-4be3a078c24b | Ex Parte Corbitt | 468 So. 2d 92 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 92 (1985)
Ex parte Jim H. CORBITT
(Re Jim H. Corbitt v. State of Alabama).
83-1043.
Supreme Court of Alabama.
January 11, 1985.
G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for petitioner.
Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
The prison discipline board at Staton Correctional Facility denied petitioner's "good-time" benefits as discipline after finding that he had assisted another inmate in stealing nine pairs of ladies' blue jeans from the factory where he was working as part of the work release program. He filed a petition for habeas corpus, which was denied by the trial court. The Court of Criminal Appeals affirmed without issuing an opinion. 453 So. 2d 6. Petitioner filed an application for rehearing, and attached a statement of facts, which he asked the court to consider pursuant to Rule 39(k), Ala.R.App.P. After the Court of Criminal Appeals denied his application for rehearing, 461 So. 2d 57, he petitioned this Court for writ of certiorari.
Although other issues were raised, we granted certiorari solely to review whether the petition for habeas corpus was properly verified. We find that the petition was properly verified and reverse and remand.
The Court of Criminal Appeals issued no opinion, but petitioner complies with Rule 39(k), Ala.R.App.P., and contends that if the court held that the petition was not properly verified, then that holding would conflict with prior decisions of Alabama appellate courts. In his 4-page handwritten petition for habeas corpus, petitioner signed his name on the petition in three placesat the end of his petition, after a portion styled "Prayer for Relief," and after a portion he styled "Motion for Leave to Proceed in Forma Pauperis." At the end of the 4-page petition is the following: "Subscribed & Sworn to before me this 17 *93 day of Jan. 1984. Margaret B. Hall, Notary."
In the recent case of O'Such v. State, 423 So. 2d 317 (Ala.Cr.App.1982), the Court of Criminal Appeals held that a habeas corpus petition is subject to dismissal by the trial court when, from the face of the petition, it is evident that the petitioner failed to comply with Code 1975, § 15-21-4, which provides, in pertinent part, that a petition for writ of habeas corpus "must be verified by the oath of the applicant to the effect that the statements therein contained are true to the best of his knowledge, information and belief."
In O'Such, the court found that "[i]n no part of the petition or defendant's accompanying papers is there any semblance of a jurat; the signature of no one other than that of the petitioner appears therein." O'Such at 318. O'Such, however, is distinguishable from the facts at hand, because here petitioner's signature following his motion for leave to proceed in forma pauperis was notarized.
In Rice v. State, 460 So. 2d 254 (Ala.Cr. App.1984), a petition for writ of habeas corpus was signed "before a notary public and adjacent to his signature [was] the following acknowledgment: `Subscribed and Sworn to before me this 27 day of February, 1984. Margaret B. Hall Notary.'" In determining that this acknowledgment satisfied the requirements of § 15-21-4, the Court stated the following:
Here, the concluding paragraph of the petition was signed on January 17, 1984. We find that § 15-21-4 has been substantially complied with and that the petition for writ of habeas corpus was properly verified.
The judgment of the Court of Criminal Appeals is reversed and the case is remanded to that court for entry by it of an appropriate opinion or order directing the trial court to hold an evidentiary hearing on Corbitt's petition for writ of habeas corpus.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | January 11, 1985 |
ada57471-5be2-4e65-9b36-104930e00342 | Ex Parte Blanton | 463 So. 2d 162 | N/A | Alabama | Alabama Supreme Court | 463 So. 2d 162 (1985)
Ex parte E. Alexander BLANTON.
(Re: E. Alexander Blanton v. Mary Elizabeth Blanton).
83-1111.
Supreme Court of Alabama.
January 11, 1985.
*163 E. Alexander Blanton, pro se.
Augusta E. Wilson, Peter Scales, III, Mobile, for respondent.
MADDOX, Justice.
This case requires an interpretation of the Parental Kidnapping Prevention Act (P.K.P.A.), 28 U.S.C.A. § 1738A (West Supp.1984), and Alabama's version of the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), Code 1975, § 30-3-20, et seq.
The Alabama Court of Civil Appeals, 463 So. 2d 158, found the following facts to be pertinent:
From that judgment, Blanton appealed to the Court of Civil Appeals, which affirmed the judgment and denied Blanton's request for rehearing. Blanton then petitioned here for certiorari and requested oral argument. Both were granted, primarily to determine whether the Court of Civil Appeals correctly decided the question of whether the Mobile Circuit Court had jurisdiction of the cause.
Blanton contends that the Mobile court was barred from exercising jurisdiction over the Blanton children by the two statutes hereinbefore mentioned, which read, in pertinent part:
§ 1738A(g)
Code 1975, § 30-3-26
To the extent that the P.K.P.A. conflicts with the U.C.C.J.A., the federal statute preempts the provisions of the state statute. Flannery v. Stephenson, 416 So. 2d 1034 (Ala.Civ.App.1982). Therefore, in order to determine if the Court of Civil Appeals erred by affirming the Mobile court's exercise of jurisdiction, we look solely to the P.K.P.A. and cases interpreting it.
Blanton's fundamental argument is that § 1738A(g) prohibited the initial exercise of jurisdiction by the Mobile court because, at the time the Mobile court exercised its jurisdiction, Mrs. Blanton's divorce action and his counterclaim thereto were still pending in Louisiana. At first glance, this argument seems to have some merit. Because our research reveals no previous decision which is on point with the facts of the present case, we have closely examined the *165 statute itself, the cases interpreting it, and various law review articles discussing it, and, based on that study, we have attempted to apply our understanding of § 1738A(g) to the present facts. Having done so, we find no error in the judgment of the Court of Civil Appeals.
It is undisputed that in April 1982 the Louisiana court entered a consent judgment providing for custody and visitation of the Blanton children and that on September 22, 1983, the Circuit Court of Mobile County entered a final judgment of divorce providing for the custody and support of the same two children. Blanton does not dispute the fact that the Mobile court had jurisdiction to make a custody determination; but he strongly argues that § 1738A(g) prohibited the court from exercising that jurisdiction.[1]
In order for Blanton to be correct: (1) the Mobile court's decree must have been a custody determination within the meaning of § 1738A(b)(3); (2) at the time the Mobile court exercised jurisdiction there must have been an action pending in Louisiana; and (3) at the same time, the Louisiana court must have been exercising jurisdiction consistently with the provisions of the P.K.P.A., § 1738A(g). The mere filing of an action was not an event giving Louisiana absolute and interminable jurisdiction. See Peterson v. Peterson, 464 A.2d 202, 205 (Me.1983).
A simple reading of § 1738A(b)(3) shows that, regardless of whether the Mobile court's decree was temporary or final, it was a custody determination within the meaning of the P.K.P.A. because it was "`an order of a court providing for the custody' of a child." E.E.B. v. D.A., 89 N.J. 595, 605, 446 A.2d 871, 876 (1982), cert. denied, 459 U.S. 1210, 103 S. Ct. 1203, 75 L. Ed. 2d 445, rehearing denied, 460 U.S. 1104, 103 S. Ct. 1806, 76 L. Ed. 2d 369 (1983); accord, Matter of McKenzie, 439 So. 2d 700 (Ala.Civ.App.), writ quashed, 439 So. 2d 702 (Ala.1983), Salisbury v. Salisbury, 657 S.W.2d 761 (Tenn.Ct.App.1983).
Furthermore, it is obvious to this Court that Mrs. Blanton's divorce complaint and her husband's counterclaim were and, as far as the record before us indicates, are still pending in Louisiana. Because the P.K.P.A. does not define the words "during the pendency," we must look to the common law meaning of those terms. In Louisiana, as in Alabama, a suit is commenced when a plaintiff files a complaint, sometimes referred to as a petition, and it remains pending until terminated by a decision on the merits, or by a judgment of dismissal, or by some other action by a court. Jobson v. Hodge, 347 So. 2d 57 (La. Ct.App.), writ denied, 350 So. 2d 674 (La. 1977). The record clearly shows that a complaint was filed in Louisiana and the record is completely devoid of any evidence which shows a dismissal or final adjudication in that action. Nevertheless, even though the divorce proceedings were pending under Louisiana law at the time Mrs. Blanton's Mobile divorce proceeding was filed, they did not bar the Mobile court's exercise of jurisdiction, because, at that time, the Louisiana court was no longer exercising jurisdiction consistently with the P.K.P.A.[2]
In order for the Louisiana court to have been exercising jurisdiction consistent with the P.K.P.A. at the time the Mobile court exercised its jurisdiction, the Louisiana court obviously must have had jurisdiction at that time under the P.K.P.A. to enter its own custody determination.[3]*166 Under § 1738A(c) such jurisdiction could have existed only if, at that time, the Louisiana court: (1) had jurisdiction under Louisiana law, § 1738A(c)(1); and, (2) met one of four alternative jurisdictional requirements set forth in § 1738A(c)(2)(A) through (D), Salisbury, supra, at 767, 768; or, (3) if the court previously had such jurisdiction which, pursuant to § 1738A(c)(2)(E), continued until the time the Mobile court exercised its jurisdiction.
Regardless of whether the Louisiana court had jurisdiction under its own state's *167 laws, La.Rev.Stat.Ann. § 13:1702 (West 1983), at the time in question, it had no jurisdiction under § 1738A(c)(2). Jurisdiction was not established under § 1738A(c)(2)(A)(i) or (ii) because, as previously stated, Alabama, not Louisiana, had become the children's home state and had been such for more than six months. Jurisdiction was also not established under § 1738A(c)(2)(B) because of Alabama's jurisdiction under § 1738A(c)(2)(A)(i), nor was it established under § 1738A(c)(2)(C) because the children were not present in Louisiana at that time. Finally, the Louisiana court had no jurisdiction under § 1738(c)(2)(D) because the Alabama court chose to exercise its jurisdiction rather than declining to do so.
Even though the Louisiana court had no jurisdiction under § 1738A(c)(2)(A) through (D) at the time the Mobile court exercised jurisdiction, it still could have had jurisdiction sufficient to trigger application at § 1738A(g) if it previously had jurisdiction under subsections (c)(1) and (c)(2)(A) through (D) and that jurisdiction continued until the time the Mobile court acted to exercise its jurisdiction. From the record before us, it is clear that, at the time Mrs. Blanton filed for divorce in Louisiana, the critical time for determining jurisdiction, Mitchell v. Mitchell, 437 So. 2d 122 (Ala. Civ.App.1982), the Louisiana court had jurisdiction under § 1738A(c)(1) and (c)(2)(A)(i) because Louisiana was, at that time, the children's home state. Moore v. Moore, 379 So. 2d 1153 (La.Ct.App.1980). The dispositive issue in this case is how long that jurisdiction continued.
Under § 1738A(c)(2)(E), once jurisdiction was established in Louisiana under § 1738A(c)(1) and (2) it continued pursuant to § 1738A(d) "as long as the requirement of subsection (c)(1).... continue[d] to be met and such State remain[ed] the residence of the child or of any contestant." (Emphasis added.) Thus, regardless of how long its jurisdiction continued under state law, the Louisiana court's jurisdiction under the P.K.P.A. continued only as long as one of the Blanton children, Mrs. Blanton, or Mr. Blanton continued to reside there. If one or more of the above-named parties continued to reside in Louisiana at the time the Mobile court exercised its jurisdiction, the Louisiana court's continuing jurisdiction triggered § 1738A(g) and the action of the Mobile court, even though proper under Alabama's "home state" provision, was barred. On the other hand, if all the parties left Louisiana prior to the time the Mobile court acted, the Louisiana court was no longer exercising its jurisdiction consistently with the P.K.P.A. at that time, leaving the Mobile court free to act.
From the record before us, it is clear that the Louisiana court's continuing jurisdiction had already terminated when the Mobile court acted. It is undisputed, and the Court of Civil Appeals found, that Mrs. Blanton and both Blanton children left Louisiana sometime in December 1982 and that sometime thereafter Blanton moved to Texas. The Court of Civil Appeals found that Blanton's move came sometime between December 1982 and the "sudden flurry of legal action in the summer of 1983." We can only interpret this finding to mean that Blanton's Louisiana residency terminated prior to the filing of Mrs. Blanton's Mobile divorce petition on July 25, 1983, and, therefore, prior to any exercise of jurisdiction by the Mobile court. Blanton has presented nothing by way of additional or corrected facts, Rule 39(k) Ala.R.App.P., to persuade us otherwise.
It is well established that when reviewing decisions of a court of appeals on writ of certiorari this Court is limited to reviewing those facts found by that court and other properly presented additional or corrected facts. Rule 39(k) Ala.R.App.P. Those facts found by the court below will be presumed correct unless shown by the petitioner to be in error. Life Insurance Co. of Georgia v. Miller, 292 Ala. 525, 296 So. 2d 900 (1974), Ex parte Newbern, 286 Ala. 348, 239 So. 2d 792 (1970), dismissed, 409 U.S. 813, 93 S. Ct. 60, 34 L. Ed. 2d 69 (1972).
Considering the fact that all of the parties left Louisiana prior to the time the *168 Mobile court exercised its jurisdiction, we hold that the Louisiana court had no jurisdiction under the P.K.P.A. at that time and, therefore, was not exercising, and could not have exercised, jurisdiction consistently therewith. Consequently, § 1738A(g) did not apply.
Blanton's next contention is that the Mobile court violated Code 1975, § 30-3-26, because, even after being informed of the alleged pending action in Louisiana, it refused to communicate with the Louisiana court and exercised its jurisdiction. We find that, because the Louisiana court no longer had jurisdiction, any technical violation of § 30-3-26 was harmless.
We will not discuss the other two issues raised by Blanton, that service of process was improper and that he was not given an opportunity to answer after denial of his motion to dismiss, finding them to have been properly resolved by the Court of Civil Appeals.
AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
ALMON, J., not sitting.
[1] The Mobile court had home state jurisdiction under both state law, § 30-3-23(a)(1)a., and § 1738A(c)(2)(A)(i), because, at the time wife filed her petition in Mobile, the Blanton children had lived in Alabama for at least six consecutive months.
[2] In Losey v. Losey, 412 So. 2d 639 (La.Ct.App. 1982), the Louisiana appeals court recognized that a court can have jurisdiction to adjudicate a divorce proceeding even though it has no jurisdiction to determine child custody.
[3] The P.K.P.A. provides in pertinent part:
"(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.
"(b) As used in this section, the term
(1) `child' means a person under the age of eighteen;
(2) `contestant' means a person, including a parent, who claims a right to custody or visitation of a child;
(3) `custody determination' means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications;
(4) `home State' means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;
(5) `modification' and `modify' refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not;
(6) `person acting as a parent' means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;
(7) `physical custody' means actual possession and control of a child; and
(8) `State' means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.
"(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section. "(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
"(e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.
"(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
"(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination." | January 11, 1985 |
7670b5ce-6924-409f-b4e6-cdd19636e90a | Ex Parte Whitman | 238 So. 2d 709 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 709 (1970)
Ex parte N. S. Whitman et al., a Corp.
In re N. S. WHITMAN et al.
v.
Hon. Telfair J. MASHBURN, as Judge of the Circuit Court of Baldwin County, Alabama, in Equity.
1 Div. 618.
Supreme Court of Alabama.
August 20, 1970.
Chason, Stone & Chason, Bay Minette, for petitioners.
J. B. Blackburn, Bay Minette, McDermott & Slepian, Mobile, for respondent.
COLEMAN, Justice.
This is an original petition for writ of mandamus to the Honorable Telfair J. Mashburn, as Judge of the Circuit Court of Baldwin County, Alabama, In Equity, to require him to set aside an order granting a motion to strike petitioners' demand for a jury trial, in a cause in said court wherein petitioners are respondents.
We granted the rule nisi and the trial judge filed a demurrer and an answer. The demurrer is overruled and the answer is hereinafter mentioned.
*710 This court has heretofore reviewed by mandamus the action of a trial court in granting a jury trial or in denying a motion to strike a demand for jury trial. Ex parte Hall, 255 Ala. 98, 50 So. 2d 264; Ex parte Merchants Nat. Bank of Mobile, 257 Ala. 663, 60 So. 2d 684; Ex parte Spence, 271 Ala. 151, 122 So. 2d 594. "....It has been the custom of this Court to grant such a mandamus for that purpose with respect to interlocutory orders and judgments of the court as to which an adequate remedy is not available on appeal....." Ex parte Merchants Nat. Bank of Mobile, supra, 257 Ala. at 664, 60 So. 2d at 685. We consider mandamus appropriate for review in the instant case.
On June 24, 1968, Ray E. Loper Lumber Company, Inc., a corporation, herein sometimes referred to as Loper, filed its verified bill of complaint in the circuit court, in equity, against Choyce E. Windham, N. S. Whitman, N. S. Whitman, Jr., who are natural persons, and N. S. Whitman Timber Company, Inc., a corporation; all of whom are sometimes herein collectively referred to as respondents. In its bill of complaint, Loper avers as follows.
On April 8, 1964, and thereafter, Loper owned timber in Baldwin and Mobile Counties. On April 8, 1964, or during several months prior thereto and continuing thereafter, respondents conspired together to enter unlawfully on lands on which Loper's timber was situated and unlawfully to cut and remove said timber. After said date, respondents, ".... acting either individually or through their respective agents, servants or employees.....," unlawfully cut and removed from said lands timber belonging to Loper and sold the same and converted the proceeds to the use of respondents.
In 1964, on to wit: the 18th and 26th of February and the 3rd, 11th, 18th, and 25th of March and April 1st, the respondent corporation ".... caused to be executed...." against funds deposited in its name in a Mobile bank seven checks in certain stated amounts, totaling $5,485.60, "each of said checks being attached to an invoice reflecting timber taken from and belonging to" Loper. None of the checks was delivered to Loper.
On April 8, 1964, or prior thereto, respondents conspired together to defraud Loper of said $5,485.60 and caused to be canceled all said checks ".... which had been executed payable to ...." Loper, and ".... subsequent to which on, to-wit: April 8, 1964 ...." the respondent corporation issued its check number 22221, payable to Cash ...." for $2,950.91, which check ".... bore the endorsement of N. S. Whitman...."; and on April 9, 1964, the respondent corporation caused to be issued its check number 22224, payable to cash, for $66.09, to which "they" (?) attached a statement bearing the legend "`Corrected Statement 4-8-64 (22221)'." The sum of checks 22221 and 22224 is fifty-five per cent of $5,485.60. None of the proceeds of these checks was "tendered" to Loper in payment for its timber.
During the period from April 8, 1964, to October 9, 1967, the respondent corporation issued certain checks, "... payable to cash ....," drawn on its funds in the Mobile bank. The face amount of said checks was computed at fifty-five per cent of ".... Respondents (`) invoice price for Complainant's timber ....," the total sum of said checks being $66,224.38. "According to said invoices, ...." the respondent corporation retained forty-five per cent of said invoice price, or $54,183.58, in the corporate treasury.
From January 3, 1966, to September 9, 1967, the respondent corporation caused checks to be drawn on its funds in the Mobile bank. The face amount of these checks was computed at ".... the Respondent's (sic) invoice price for Complainant's timber of $4.00 and $5.00 per cord." The total sum of these checks was $28,059.32. The checks, or proceeds thereof, were never tendered or paid to Loper.
*711 The total sum of the checks issued "....to cash and to Taylor-Windham, a proprietorship, partnership or corporation whose correct designation or identity is unknown to Complainant .... in the two categories above described...." was $94,283.70; none of which was tendered to Loper in payment "of its timber" as listed and priced in the invoices of the respondent corporation; and, if the $94,283.70 is added to the $54,183.58 retained by the respondent corporation, the total is $148,467.28, which, complainant Loper alleges, belonged to Loper and was unlawfully converted by respondents to their own use. A list of the checks allegedly totaling $94,283.70 is attached to the bill of complaint as Exhibit A. The exhibit shows that the payee was "Cash" on all the listed checks except five checks, in each of which the payee is shown as "Taylor-Windham." Approximately one hundred and eighteen checks are listed.
Loper alleges that the list of checks in Exhibit A was furnished to Loper by the respondent corporation and its managing officer, N. S. Whitman. Loper alleges that the respondent corporation and N. S. Whitman have refused to make available to Loper ".... all applicable records showing the amount of timber belonging to the Complainant which was wrongfully cut and removed by Respondents and which was sold by them and the proceeds converted to their own use, or to account for such timber or to make payment...." to Loper.
Complainant avers that its timber which was unlawfully cut by respondents is of many "species, sizes, and locations," and its value depends on the use to which it may be put and its distance from its market.
Loper alleges, on information and belief, that if all "applicable records" of respondents are made available to complainant, the records will show that an additional amount of Loper's timber has been unlawfully cut and removed by respondents and that the cash proceeds, "unmeasured" by said list of checks, have been received by respondents and converted to their own use. Loper further alleges that the records will show that Loper's timber, cut by respondents, was not all sold in its most profitable market and that the prices shown on respondents' records do not properly reflect price differentials that would inure to Loper's benefit, ".... because of which discovery is necessary to enable Complainant to show the true value...." of its timber which respondents have cut and sold.
Complainant offers to do equity and ".... avers there is a justiciable controversy between it and the Respondents."
Complainant prays for preliminary hearing "....on that aspect of this Bill .... seeking discovery and accounting...." and for decree on such hearing to require respondents to produce all pertinent records and for an accounting.[1]
*712 Complainant prays for decree on final hearing awarding complainant $148,467.28 and such additional sum as may be due complainant as compensatory damages and for interest and loss of profits, and further for $250,000.00 punitive damages, and for general relief.
Within thirty days after service of process, respondents N. S. Whitman, N. S. Whitman, Jr., and the respondent corporation filed a demurrer to the bill and, by endorsement on the demurrer, demanded a trial of this cause by jury.
Loper subsequently filed a motion to strike the demand for a jury trial. The trial court granted the motion and struck the jury demand.
Respondents N. S. Whitman, N. S. Whitman, Jr., and N. S. Whitman Timber Company, Inc., a corporation, applied to this court for alternative writ of mandamus to require the trial judge to set aside the order granting the motion to strike' respondents' demand for a jury or to show cause why he should not do so. We granted the alternative writ.
The trial judge filed a demurrer to the petition for mandamus and an answer to the alternative writ. In the answer, he admits the averments of the petition that a bill in equity was filed by Loper as above set out, that respondents filed demurrer and jury demand, that Loper filed motion to strike respondents' jury demand, and that the trial court granted the motion to strike.
In his answer, the trial judge draws the conclusion that the bill presents a case for accounting and discovery, that the case is not a case in equity wherein a party is entitled to a trial by jury as a matter of right, and that the trial court, in exercise of discretion, granted Loper's motion to strike respondents' demand for a jury because respondents are not entitled to a trial by jury in this case.
The respondents, petitioners for mandamus, appear to concede that they are not entitled to a jury trial, as a matter of right, if the averments of the bill of complaint show that Loper is entitled to relief in equity on a recognized equitable ground.
Respondents contend, however, that the averments of the bill show that Loper seeks only a money judgment for torts allegedly committed by respondents and that the averments of the bill do not show that Loper is entitled to relief in equity.
In brief filed on behalf of the trial judge, counsel say that the averments of the bill show that Loper is entitled to the equitable relief of accounting and discovery, that a bill for such relief comes within the original jurisdiction of equity, and, *713 therefore, respondents are not entitled to a jury trial as a matter of right.
The question for decision then is whether the facts averred in the bill show that the complainant, Loper, is entitled to the equitable relief of accounting or discovery; or, in other words, whether the averments of facts contained in the bill show that it has independent equity as a bill for an accounting or as a bill for discovery.
Does the bill have equity as a bill for an accounting? The only relief claimed or asked for is money damages for trover and conversion allegedly committed by respondents. "The action of trover, or trover and conversion, lies to recover damages for the conversion by the defendant to his own use of specific personal property, in which, at the time of the conversion, the plaintiff had a general or special property, and of which he was in the actual possession, or to which he was entitled to the immediate possession." Shipman, Hand-Book of Common-Law Pleading, 2nd Ed., 1895, page 68.
In the bill filed by Loper, the claims are all on one side, in favor of Loper and against respondents. There is no mutuality of accounts. There is not the slightest showing of any fiduciary relation between the parties. The averments with respect to the checks allegedly drawn by respondents, if they show anything, show merely that respondents have not paid Loper for Loper's timber which respondents allegedly cut unlawfully and converted to their own use.
The instant bill filed by Loper has no equity in its accounting aspect which will support Loper's claim to relief in equity and justify denial of respondents' demand for a jury trial.
Does the bill have equity as a bill for discovery? In Pate v. Bruner, 243 Ala. 648, 11 So. 2d 356, this court considered a bill which is remarkably similar to the instant bill in substantially all material respects. The opinion of this court states that the averments of the bill were that, during the years 1939 and 1940, respondent Page and his agent, servants, and employees went upon complainant's land and cut and converted into lumber large quantities *714 of timber, to wit: 705,000 board feet; that Pate converted same to his own use and sold the same for his own benefit. The opinion, in part, recites:
Complainant amended his bill by alleging, on information and belief, that respondent Pate claimed that he cut and sold the timber under an agreement with a third party, C. C. Bruner, who was a joint owner with complainant but had no authority to sell complainant's interest in the timber.
This court held the bill to be without equity and reversed for error in overruling demurrer to the bill of complaint, and said:
To support the equity of the bill, counsel relies on two cases, the first being City of Mobile v. McCown Oil Co., 226 Ala. 688, *715 148 So. 402, wherein the City of Mobile filed a bill for an accounting and discovery to ascertain and collect from respondent a tax levied on sellers of gasoline within the corporate limits and police jurisdiction of the city during a period of time in which respondent had been engaged in such business. This court held that the bill had equity saying:
In the instant case, for aught that appears, complainant could ascertain the amount and value of complainant's timber allegedly cut by respondents by a diligent inspection of the premises from which the timber had been taken.
The second case relied on is Lindsey Lumber Co. v. Mason, 165 Ala. 194, 51 So. 750. In that case, the complainant filed a bill to recover for money allegedly due from the respondent, Lindsey, for lumber which had been manufactured from timber by Canoe Mill Company, during a period of time in which a contract had been in force whereby Lindsey was to sell on commission the lumber manufactured by Canoe. In the statement of the case, the following appears, to wit:
In that situation, Lindsey was the only party with knowledge of the lumber sales and the money collected. This court held that Lindsey was the agent of Canoe and that necessity for discovery was shown, which seems obvious in view of Lindsey's complete control and management of the sales. It was not a case where recovery was sought for the unlawful cutting and conversion of plaintiff's timber by respondent or where the information sought could be obtained by diligent inspection of the premises.
On authority of Pate v. Bruner, supra, we are of opinion that Loper's bill of complaint is without equity and that respondents are entitled to trial by a jury, whose verdict will be binding as at law, and that the writ of mandamus should issue unless the respondent judge, after being advised of this opinion, enters an order setting aside his order granting complainant's motion to strike respondents' demand for a jury trial and enters an order denying complainant's motion to strike.
This court has twice observed that the special relief by way of discovery here sought by Loper would be obtainable by the statutory system at law devised for that purpose. Wooten v. Wooten, 270 Ala. 191, 117 So. 2d 192; Kirksey Motors, Inc. v. General Acceptance Corp., supra.
Writ awarded conditionally.
LIVINGSTON, C. J., and BLOODWORTH, MADDOX and McCALL, JJ., concur.
[1] Loper's prayer for relief recites:
"PRAYER FOR RELIEF
"WHEREFORE, THE PREMISES CONSIDERED, your Complainant prays that this Honorable Court set this cause down for a preliminary hearing on that aspect of this Bill of Complaint seeking discovery and accounting and upon such preliminary hearing will make or render a decree requiring the Respondents to produce all books, records, checks, invoices, ledger sheets, and all other evidence relating to timber belonging to your Complainant which was cut, removed or purchased by the Respondents during the hereinbefore mentioned periods of time; that an accounting be had under the direction of this Honorable Court to determine the exact amount of timber belonging to the Complainant which has been unlawfully cut, removed and sold by Respondents, including but not limited to, the date hauled, the point of origin, the point of destination, quantities, species, prices received, cost of cutting, cost of hauling, names of persons, firms or corporations to whom sold, producing all books of record, invoices, delivery tickets, settlement sheets, canceled checks and all other data connected with or required by Complainants in order to establish or verify the total amount due Complainant by Respondents for timber belonging to your Complainant unlawfully cut and removed by Respondents.
"That such orders, temporary and permanent, be issued and decrees rendered by this Court as may be necessary and proper to force Respondents to comply with such decrees issued by this Court with regard to the production of records for the purpose of a proper accounting, said records to be made available to and accessible to such person or persons as might be appointed by this Court to audit or inspect the same.
"That upon a final hearing of this cause, the Court will make or render a decree awarding the Complainant the sum of ONE HUNDRED FORTY EIGHT THOUSAND FOUR HUNDRED SIXTY SEVEN AND 28/100 ($148,467.28) DOLLARS and the further sum which the Court may find to which the Complainant is entitled to recover as compensatory damages and, in addition, to fix the sum of money which Complainant is entitled to recover for interest on its withheld sales proceeds, and for the profit it has been denied by the abridgement of a natural resource basic to its profitable operations, and for the profit it has been denied by havings its timber sold without regard to its proper use and most profitable market; and further, Complainant prays for TWO HUNDRED FIFTY THOUSAND AND NO/100 ($250,000.00) DOLLARS punitive damages.
"Your Complainant prays for such other, further or different relief as it may, in equity in good conscience, be entitled." | August 20, 1970 |
bea65a7a-4427-4ac4-af2b-c2aff7425527 | Ex Parte Morris | 465 So. 2d 1180 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 1180 (1985)
Ex parte Betty MORRIS.
(Re: Betty Morris
v.
State of Alabama).
83-1355.
Supreme Court of Alabama.
January 11, 1985.
Paul M. Harden, Monroeville, for petitioner.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
*1181 JONES, Justice.
We granted certiorari on the single issue of whether the trial judge's jury instructions amounted to coercion of a verdict.
Petitioner Morris was indicted, by separate indictments, on several charges of embezzlement. After trial on the first indictment, she was acquitted. After a jury trial on the second indictment, however, she was found guilty and sentenced to two years in the state penitentiary. That judgment was affirmed by the Court of Criminal Appeals, Morris v. State, 465 So. 2d 1173 (Ala.Cr. App.1984), which found, specifically, that the trial court had not coerced a verdict from the jury.
The events upon which Petitioner bases her claim that the trial court coerced the jury's verdict are as follows:
After a jury trial before the Honorable Robert E.L. Key, Judge of the Circuit Court of Conecuh County, Alabama, the jury retired to begin deliberations on Wednesday, September 29, 1982, at 10:00 A.M. The trial judge, in the presence of the Petitioner, Petitioner's attorney, and the District attorney, addressed the jury:
During that meeting, a juror asked the following question:
Thereafter, the jurors retired to the jury room for further deliberations. At 3:35 P.M. the jury asked to meet with the court again, and the following transpired:
At 5:43 P.M. the jury had not reached a verdict and Judge Key addressed the jurors:
After the jurors had left the courtroom, counsel for Petitioner moved for a mistrial on the ground that the jury was deadlocked. Judge Key replied:
The next morning, Thursday, September 30, 1982, at 9:23 A.M., the following took place:
At this point, counsel for Petitioner again moved for a mistrial, stating as his grounds that the foregoing amounted to coercion. The motion was overruled and the jury retired again for further deliberations. The trial transcript reveals that "[a]t 11:20 A.M. the jury having reported that they had arrived at a verdict, Honorable James B. Watson, District Judge and Special Circuit Judge so designated by Judge Key to receive the verdict, came to Evergreen, the jury was called to the courtroom and in the presence of the defendant, her attorney and the district attorney [reported its verdict of guilty]." Each juror answered in the affirmative Judge Watson's question, "Is this your verdict?" Counsel for Petitioner renewed his motion for mistrial.
Petitioner urges this Court to take the initiative to "hereby overrule those controlling cases in Alabama which allow the use of the `Allen charge.'" This we refuse to do. The admonitions of this charge are as valid today as when Allen was decided in 1896:
Indeed, "[i]t is quite clear that under Alabama law a trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used." Showers v. State, 407 So. 2d 169, 171 (Ala.1981). See, also, Ashford v. McKee, 183 Ala. 620, 62 So. 879 (1913).
As Petitioner concedes, up to a point the trial judge's exhortation to the jury did not amount to undue coercion. Judge Key's initial statement to the deadlocked jury that they had not deliberated long enough, and his answer to the juror's question of whether they were to decide that "she got the money from this check or whether she stole the money," were reasonable and helpful responses. Even his statement that he expected a verdict in the case, when viewed alone, did not amount to the proscribed coercion of a verdict.
Petitioner argues, however, and we agree, that the record reveals the attitude of the judge becoming more vigorously "encouraging" with each encounter with the jury, and his admonitions to the jury appearing strident when examined in the context of the entire record of his exchanges with the jurors.
It has been held that the words and deeds of the trial judge, in charging the jury, may not contain even "the least appearance of duress or coercion," Gidley v. State, 19 Ala.App. 113, 95 So. 330 (1923), and that the judge's charge "must be examined so that the suspect language is tested in the whole context of its setting." Orr v. State, 40 Ala.App. 45, 111 So. 2d 627 (1958).
The "whole context" within which we examine Judge Key's instructions to this jury is apparent from the trial transcript. Judge Key was made aware just before noon on Wednesday that the jury was deadlocked, and, upon reconvening that afternoon, he heard one juror express doubts as to the sufficiency of the evidence needed to find Petitioner guilty. Later that day, finding that the jurors still could not agree on a verdict, Judge Key made it clear that he was "not about to declare a mistrial in this case today." Thereupon, one of the jurors informed Judge Key that he was the "hold-up" and said, "[I]f I stay down here until 5:00 o'clock, I'll have to tell a lie," to which Judge Key replied, "We're not talking about 5:00 o'clock this afternoon. I mean 5:00 o'clock Friday afternoon because I mean business about this thing." But neither these remarks, nor those made late Wednesday afternoon in dismissing the deadlocked jury for the night, amounted to coercion of the jury. These instructions did not exceed the perimeters of Allen; and Judge Key did not err at that time in denying Petitioner's motion for a mistrial.
While Judge Key's jury charge on Wednesday fell short of impropriety, nonetheless, the totality, or cumulative effect, of his charge is relevant to our consideration in testing the propriety vel non of his final instructions on Thursday. When the jurors returned with a guilty verdict at 9:23 Thursday morning, Judge Key polled the jurors and found that one juror could not say that "guilty" was his verdict. In sending the jurors back for further deliberations after this revelation, Judge Key ended his remarks by saying that he would be back by 5:00 that afternoon. This, we find, clearly put within the minds of the jurors a deadline for returning with an unanimous verdict. There can be no doubt that, at this point, Judge Key's "words and deeds" had crossed the "Allen line" and Petitioner's motion for a mistrial should have been granted.
Judge Key's knowledge of the serious misgivings of one juror in acquiescing in *1184 the guilty verdict, coupled with the judge's expres determination to get a unanimous verdict from these twelve jurors, made his final words of "encouragement" coercive. The admonition contained in the judge's directive, we believe, placed an almost unbearable pressure upon the dissenting juror to accede to the wishes of the majority the very juror who, as the trial judge knew from the events of the previous day, was the lone hold-out.
Central to our holding are the last instructions Judge Key gave to the jury before sending them back for their final period of deliberation. If the record were devoid of this last incident, and if the jury had returned a unanimous verdict and each individual juror had withstood the initial polling inquiry, we would not hold that the permissible limits of the "Allen charge" had been exceeded. But the record does reflect that Judge Key sent the jury back for further deliberations after one juror revealed that the verdict of "guilty" was not his individual verdict, observing to the jury that he would be back at 5:00 o'clock that afternoon. It is this final instruction, when viewed in light of the totality of the circumstances that occurred throughout the preceding day, that edged Judge Key's conduct over the prescribed line.
Our review of the record convinces us that, when examined in the full context of his instructions to the jury, the cumulative effect of Judge Key's final admonitions to the jury were, indeed, coercive and went beyond the "spirit of harmony" sought to be accomplished by the giving of an acceptable "Allen charge." For this reason, we find that it was error for the trial judge to deny Petitioner's motion for a mistrial. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded for further proceedings consistent with this opinion.
TORBERT, C.J., and FAULKNER, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
MADDOX, Justice (dissenting):
This is admittedly a close case, but I would affirm the judgment of the Court of Criminal Appeals for two reasons:
(1) That court, having examined the same record we have before us, determined that the trial judge did not coerce the jury into reaching a unanimous verdict of guilty.
(2) The trial judge, under the mandate of Code 1975, § 12-16-15, and prior precedents, was duty bound to send the jury back for further deliberations once he determined, upon polling the jury, that the verdict returned was not the verdict of one of the jurors.
In Comer v. Rush, 403 So. 2d 205, 207 (Ala.1981), this Court held:
I cannot conclude that the trial judge's statement that he would "be back at 5:00 o'clock this afternoon" amounted to coercion to reach a unanimous verdict; consequently, I agree with the finding made by the Court of Criminal Appeals. | January 11, 1985 |
056a020e-4800-4dff-a9f9-e638877593c9 | Barfield v. Wright | 240 So. 2d 593 | N/A | Alabama | Alabama Supreme Court | 240 So. 2d 593 (1970)
Austin J. BARFIELD
v.
Patsy Clements WRIGHT.
4 Div. 400.
Supreme Court of Alabama.
October 29, 1970.
*594 Tipler, Fuller & Melton, Andalusia, for appellant.
Powell & Sikes, Andalusia, for appellee.
HARWOOD, Justice.
The complaint below as originally filed contained two counts. Both counts claimed damages resulting from a collision between the defendant's automobile and that of the plaintiff. Count 1 averred the negligent operation of defendant's automobile, and Count 2 asserted that plaintiff's damages resulted from the wanton operation of defendant's automobile.
The defendant's demurrer to the complaint being overruled, the defendant then pleaded the general issue in short by consent with leave to give in evidence any matter in defense which might be specially pleaded but not to include set off or recoupment.
The defendant also filed a separate plea of recoupment.
For answer to the plea of recoupment the plaintiff filed a plea of the general issue in short by consent, etc.
Thereafter the plaintiff amended his complaint by substituting Count 1A for Count 1, and Count 2A for Count 2. The theory and gravamen of the latter two counts is respectively the same as their original counterparts, and any change wrought by the amending counts is insubstantial.
To the complaint as amended the defendant refiled her demurrer, and upon it being overruled, she refiled her plea of the general issue in short by consent, etc. The record as originally filed fails to show the refiling of the demurrer and the plea of the general issue in short by consent, etc., to the complaint as amended. However, the record as corrected by certiorari shows such refiling of the demurrer and the plea to the amended complaint.
The facts tend to show that the defendant was travelling toward Andalusia on U.S. Highway 84. As she came to the top of a hill the plaintiff was entering the highway from a side road and angled over into the right lane of the highway, and proceeded in the direction of Andalusia. Another automobile was approaching in the left lane. The defendant applied her brakes but nevertheless struck the rear of plaintiff's 1948 automobile. No appreciable damage was done to the plaintiff's automobile but defendant's automobile was considerably damaged.
The defendant testified she was driving at a speed of between 55 and 60 miles per *595 hour when she first observed the plaintiff, and that the plaintiff's automobile was travelling between 5 and 10 miles per hour at the time she struck it. The plaintiff maintained his speed was 25 miles per hour at this time.
The jury was fully instructed as to the verdicts they might render after consideration of the case. The jury rendered a verdict for the defendant. The plaintiff's motion for a new trial being overruled, the plaintiff perfected this appeal.
The above thumbnail sketch of the facts we think will suffice for the purposes of this review.
Assignment of error No. 2 alleges error because of the court's action in sustaining the defendant's objection to the following question propounded to State Trooper Ward who arrived at the scene of the collision a short while after it occurred:
Just prior to propounding this question, Trooper Ward had testified he had been with the State for nine years and had investigated many wrecks. We gather therefore that the question was addressed to Trooper Ward as an expert.
A hypothetical question to an expert should incorporate sufficient facts in evidence upon which an expert opinion can be fairly based. Alabama Power Co. v. Bruce, 209 Ala. 423, 96 So. 346; Sovereign Camp, W. O. W. v. Davis, 242 Ala. 235, 5 So. 2d 480. The frame and substance of hypothetical questions to expert witnesses is left largely to the sound discretion of the trial court, and the ruling of the court in such matters will not be disturbed unless such discretion is abused. Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So. 2d 246.
The question as framed, and to which the objection was sustained, was faulty because of its generality. It contained no reference to the model, type, or weight of the automobile nor whether it was equipped with two wheel or four wheel brakes, nor the force with which the brakes were applied, nor the speed of the automobile at the time of the application of the brakes. Other deficiencies could be pointed out.
The ruling of the court was proper in the premises.
Assignments of error 8, 9, and 13, have been argued jointly. These assignments relate respectively to the action of the court in giving at the request of the defendant charges 11, 12, and 16. All of these charges were instructions relating to contributory negligence on the part of the plaintiff. The plaintiff-appellant argues that error resulted in the giving of these charges because contributory negligence was not within the issues made by the pleadings in that there was no plea of contributory negligence filed to the original complaint, but only a plea of recoupment.
The record as originally filed would support appellant's argument. However, as before stated, the record as corrected shows that a plea of the general issue in short by consent, etc., was filed to the original complaint, and refiled to the complaint as amended.
The plea of the general issue in short by consent, etc., would include a plea of contributory negligence in defense of Count 1A, the negligence count. Wilhite v. Webb, 253 Ala. 606, 46 So. 2d 414.
In view of the record as corrected, appellant's argument in support of assignments 8, 9, and 13, is without merit.
Assignment of error No. 10 relates to the giving of defendant's requested Charge No. 13, which instructed the jury that if the jury was reasonably satisfied from all the evidence that the plaintiff was not keeping a proper look-out at the time and place of the accident and that such failure was the sole and proximate cause of the *596 plaintiff's alleged injuries, then the jury must return a verdict in favor of the defendant.
In argument in support of assignment of error No. 10, counsel asserts:
Subsequent negligence can be the basis for recovery under a count which charges simple initial negligence, and the giving of a "sole proximate" charge "is error when an issue of subsequent negligence is presented by the pleadings and the proof." Shepherd v. Johnson, 268 Ala. 69, 104 So. 2d 755. This case was tried below on the basis of both the initial negligence, and the wantonness of the defendant, and also the contributory negligence of the plaintiff. The trial court did not instruct the jury on subsequent negligence.
This case must therefore be considered on the theory on which the trial was had, and subsequent negligence was not a part of the theory in the proceedings below. Southern Ry. Co. v. Terry, 268 Ala. 510, 109 So. 2d 919.
As to counsel's argument that contributory negligence was not pleaded by the defendant, what we have said in discussing assignment of error Nos. 8, 9, and 13, disposes of this assertion.
Even though subsequent negligence may be laid to one side, Count 1B asserted wantonness, and the jury was instructed on this principle. We must therefore consider whether the giving of Charge 13 constitutes error under the particular posture of the case, since the defendant filed a plea of recoupment based solely on the alleged simple negligence of the plaintiff in causing the collision. Pleas of recoupment are in effect complaints and declarations of the defendant against the plaintiff, and are attended with the same rights and subject to the same defenses as are original complaints. Trammell v. Robinson, 34 Ala. App. 91, 37 So. 2d 142; Walker v. Southern Trucking Corp., 283 Ala. 551, 219 So. 2d 379.
It would appear therefore that the court was justified in giving Charge 13 under the recoupment aspect, even though a charge involving sole proximate cause should not be given when an issue of wantonness or subsequent negligence is involved. The reason given for such rule is that the giving of a "sole proximate cause" charge in cases involving wantonness and subsequent negligence might tend to confuse the jury on the issue of subsequent negligence under the simple negligence counts, and also the wanton counts, and further, in practical effect makes the contributory negligence of the plaintiff an answer to the wanton counts, whereas a plea of contributory negligence will not lie to a count charging wantonness. See Boyette v. Bradley, 211 Ala. 370, 100 So. 647; Lindsey v. Kindt, 221 Ala. 190, 128 So. 139.
A "sole proximate cause" charge usually states a correct principle of law as an abstract proposition, in that if the negligence of the plaintiff was the sole proximate cause of his own injury, then the defendant did not cause the injury and is not liable therefor.
The reason assigned for the rule established relative to the impropriety of giving a sole proximate cause charge in cases involving subsequent negligence, or wantonness, has been questioned, but the rule has been left in operation because of the large number of decisions implanting it in our jurisprudence.
In Birmingham Electric Co. v. Carver, 255 Ala. 471, 52 So. 2d 200, the late Foster, J., discussed the reasons for not giving such a charge under the conditions mentioned, and observed: "* * * which this writer thinks is a farfetched conclusion."
*597 And in Seitz v. Heep, 243 Ala. 372, 10 So. 2d 148, while following the holding in Boyette v. Bradley, 211 Ala. 370, 100 So. 647, Bouldin, J., stated: "If the matter were of first impression, this writer would treat such charge as misleading at most * * *"
In the fairly recent case of McRee v. Woodward Iron Co., 279 Ala. 88, 182 So. 2d 209, the appellant sought to have the rule that a sole proximate cause charge cannot properly be given where subsequent negligence or wantonness is presented, extended to cases involving possible concurrent negligence.
In refusing to extend the rule, Justice Merrill wrote: "We have had enough trouble with the question when confined to wantonness and subsequent negligence and are not disposed to extend it."
We likewise are not disposed to extend the rule to the situation here presented, i.e., where the defendant has filed a plea of recoupment based on simple negligence. Insofar as the recoupment phase of the case was concerned, the charge was given without error. Had the plaintiff desired, he could have removed his facet of the case from the influence of the charge by requesting an explanatory charge.
No merit therefore attaches to assignment of error No. 10.
Assignment of error No. 11 asserts error because of the giving of Charge 14 requested by the defendant. This charge reads:
Our cases are to the effect that while "individual juror charges" such as Charge 14, might well be denied because of possible misleading tendencies, the giving of such a charge will not cause a reversal of a judgment. Gilmer v. Salter, 285 Ala. 671, 235 So. 2d 813.
Counsel for appellant-plaintiff argues that the charge is faulty because of the use of the term "after a full and fair consideration of all the evidence."
Reversal because of the giving of "individual juror charges" of similar import to Charge 14 has been refused where the charge was predicated upon "not reasonably satisfied from the evidence." Louisville & N. R. Co. v. Steverson, 220 Ala. 158, 124 So. 205; "a consideration of all the evidence," Nelson v. Lee, 249 Ala. 549, 32 So. 2d 22; "a full and fair consideration of all the evidence," Callahan v. Booth, 275 Ala. 275, 154 So. 2d 32; "a fair consideration of all the evidence," Gilmer v. Salter, supra.
It would indeed be hypertechnical to conclude that Charge 14 was rendered erroneous because of the employment of the term "full and fair consideration of all the evidence" in light of the holdings in the cases set out above, and the predicative bases employed for consideration of the evidence in the charges under consideration. We hold assignment of error 11 is without merit.
Assignment of error 16 asserts error in the giving of defendant's requested Charge 19. Charge 19 reads:
In brief counsel for appellant argues:
The defense of sudden emergency was within the defendant's plea of the general issue in short by consent, etc. There is ample direct evidence in the record from which an inference could be reasonably drawn that the defendant was confronted by a sudden emergency by the action of the plaintiff in entering the highway under the traffic conditions prevailing, and her inability to drive around plaintiff's automobile because of the automobile approaching from the opposite direction.
The record shows that plaintiff's witness Trooper Ward testified that the defendant had stated to him at the scene of the collision that she had had trouble with the brakes on her automobile, and had had it in a shop and the brakes had not been fixed.
The defendant denied having made such statement to Trooper Ward, and testified that the brakes on her virtually new automobile were not defective. The testimony of Trooper Ward was yet before the jury and justified the giving of Charge 19 at defendant's request.
Lastly, appellant argues assignment of error No. 1, which asserts error on the part of the court in overruling plaintiff's motion for a new trial.
No grounds of the motion for a new trial are specified, but appellant merely adopts "in its entirety" the argument made in support of the assignments above written to. Such presentation is insufficient both in form and argument to invite our review.
Affirmed.
MERRILL, BLOODWORTH, MADDOX, and McCALL, JJ., concur. | October 29, 1970 |
b02e41cb-bc05-4253-9db3-a8fe32992eff | Ex Parte Cruse | 474 So. 2d 109 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 109 (1985)
Ex parte John Anthony CRUSE.
(Re: John Anthony Cruse v. State of Alabama).
83-642.
Supreme Court of Alabama.
May 10, 1985.
Thomas M. Haas and James M. Byrd, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
EMBRY, Justice.
This court issued the writ of certiorari to the Court of Criminal Appeals, 474 So. 2d 106, in order to review that court's affirmance of the trial court's denial of petitioner's petition for the writ of error coram nobis. We reverse.
For an understanding of the issues here to be examined we set out pertinent portions of petitioner's petition for writ of error coram nobis:
The record shows that at the transfer hearing evidence was heard solely concerning the nature of the offenses charged and the involvement of petitioner. No study or report by Probation Services of the six factors required by Code 1975, § 12-15-34(d), was offered, or admitted into evidence, or considered by the juvenile court at the hearing. The order of transfer recites:
Petitioner sustained his burden of proof of the allegations of his petition. The decision of counsel appointed by the juvenile court not to appeal the transfer order, without Cruse's knowledge, consent, or approval, denied him the constitutional right to effective assistance of counsel at a critical stage in the proceedings against him. Wainwright v. Simpson, 360 F.2d 307 (5th Cir.1966). The record is very clear about this. Court appointed counsel (at the juvenile court stage) for Cruse testified at the hearing on the petition for writ of error coram nobis:
The inadequacy of the transfer order alone, by its failure to fulfill the requirements of Code 1975, § 12-15-34(d), would have warranted reversal on appeal. Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); Ray v. State, 435 So. 2d 53 (Ala.1983); cf. Mayne v. State, 416 So. 2d 741 (Ala.1982).
For the stated reasons, the judgment of the Court of Criminal Appeals is hereby reversed and this case is remanded to that court for action by it consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., concurs in the result. | May 10, 1985 |
5a3f2891-b01e-48f0-ad47-b339f0cc4051 | Safeco Insurance Co. of America v. Jones | 243 So. 2d 736 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 736 (1970)
SAFECO INSURANCE CO. OF AMERICA, a Corp.,
v.
Irby C. JONES.
Ex parte Irby C. JONES.
4 Div. 401.
Supreme Court of Alabama.
December 17, 1970.
*737 Tipler, Fuller & Melton, Andalusia, for petitioner.
Truman M. Hobbs and Richard H. Gill, Montgomery, and Jack C. Gallalee, Mobile, amici curiae.
Powell & Sikes, Andalusia, and Huie, Fernambucq & Stewart, and Paul G. Smith, Birmingham, for respondent.
Pillans, Reams, Tappan, Wood & Roberts, Richard W. Vollmer, Jr. and Geary A. Gaston, Mobile, amici curiae.
MERRILL, Justice.
This case presents a question of first impression in Alabama. It involves a construction and application of our Uninsured Motorist statute.
The first such statute was enacted in New Hampshire in 1957. Ours became effective January 1, 1966. At least forty states now have like statutes.
The decisions construing these statutes fall into three general categories: (1) where the statute specifically authorizes an "Other Insurance" exclusion (with which we are not concerned), (2) where the statute was construed as limiting recovery to the statutory limit (here $10,000.00) to only one policy, and (3) where the statute was construed to allow recovery on more than one policy, even though the statutory limit on one policy was exceeded, if the injured party's injuries exceeded the limits of one of the policies.
Examples of (1) supra are: Grunfeld v. Pacific Auto Ins. Co., 232 Cal. App. 2d 4, 42 Cal. Rptr. 516 (1965); LeBlanc v. Allstate Ins. Co., La.App., 194 So. 2d 791 (1967), and Vernon v. Harleysville Mutual Casualty Co., 244 S.C. 152, 135 S.E.2d 841 (after South Carolina had amended its statute authorizing the "Other Insurance" exclusion).
Examples of (2) supra are: Maryland Casualty Co. v. Howe, 106 N.H. 422, 213 A.2d 420; Tindall v. Farmers Automobile Management Corp., 83 Ill.App.2d 165, 226 N.E.2d 397 (1967); State Farm Mutual Automobile Ins. Co. v. Bafus, 77 Wash. Dec.2d 732, 466 P.2d 159 (1970), and Harris v. Southern Farm Bureau Cas. Ins. Co., Ark., 448 S.W.2d 652 (1970). This is the line of cases followed by our Court of Civil Appeals.
Examples of (3) supra are: Bryant v. State Farm Mutual Automobile Ins. Co., 205 Va. 897, 140 S.E.2d 817 (1965); Smith v. Pacific Automobile Ins. Co., 240 Or. 167, 400 P.2d 512, and Vernon v. Harleysville Mutual Casualty Co., 244 S.C. 152, 135 S.E.2d 841 (decided on a state of facts occurring prior to the adoption of the amendment authorizing exclusions as noted supra). Cases from courts in Florida, North Carolina, Georgia, Pennsylvania, Nebraska, Kansas, Arizona and Indiana, also in this category, are listed later in the opinion.
Our Uninsured Motorist statute, Act No. 866, Acts of Alabama 1965, Vol. II, p. 1614, listed in the 1958 Recompilation as Tit. 36, § 74(62a), provides:
The "Other Insurance" clauses of both Miller's policy and Jones' policy provided:
The facts are essentially that appellee Jones was a passenger in an automobile operated by one Edward Miller when it was involved in a collision with an automobile operated by a driver who was uninsured. Appellee suffered severe injuries as a result of this accident. Appellee subsequently recovered an un-contested judgment for $25,000.00 against the uninsured motorist. Miller, at the time of the accident, was insured by Bituminous Casualty Company under an automobile liability policy that included uninsured motorist coverage in the amounts of $10,000.00 per person and $20,000.00 per accident. Bituminous paid appellee $10,000.00, which was the limit of its policy. Appellee then made demand on his insurer, Safeco Insurance Company of America, for $10,000.00 under the uninsured motorist endorsement of his liability policy. This request was denied. An action was then filed against the insurer, Safeco, by the insured Jones for $9,900.00. A demurrer to the complaint was overruled, and issue was joined by the filing of a plea and answer. The case was submitted to the trial court on the pleadings and stipulation of facts which included a demand for $10,000.00 against Safeco.
The trial court rendered a judgment for the plaintiff, Jones, and against the defendant, Safeco, in the amount of $10,000.00. From said judgment, an appeal was perfected.
This court is now faced with the same question as was the Court of Civil Appeals. Do we adopt the minority rule, exemplified by the cases listed in (2) supra, or the majority rule, examples of which appear in (3) supra?
The Uninsured Motorist statute of Florida is the same as ours. The first case in that state followed the same path as the instant case. The trial court allowed recovery in spite of the "Other Insurance" exclusion, the District Court of Appeal reversed, and the Supreme Court of Florida quashed the decision of the District Court of Appeal on a certified question in Sellers v. United States Fidelity & Guaranty Co., 185 So. 2d 689. The question posed to that court was:
The answer to that question was in part:
That court also said:
The Sellers case, 185 So. 2d 689, has been cited with approval in the next five cases listed.
In Geyer v. Reserve Insurance Company, 8 Ariz.App. 464, 447 P.2d 556, Sellers was followed, and later, in Transportation Insurance Company v. Wade, 11 Ariz.App. 14, 461 P.2d 190 (1970), the court said:
In Stephens v. Allied Mutual Ins. Co., 182 Neb. 562, 156 N.W.2d 133 (1968), it was said:
In Travelers Indemnity Company v. Williams, 119 Ga.App. 414, 167 S.E.2d 174 (1969), the court said:
The Georgia court also said:
In Moore v. Hartford Fire Ins. Co. Group, 270 N.C. 532, 155 S.E.2d 128 (1967), it was said:
In Harleysville Mutual Casualty Co. v. Blumling, Penn., 429 Pa. 389, 241 A.2d 112 (1968), it was said:
Although the facts were different, two separate vehicles insured, we quote the following from Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34:
In Safeco Insurance Company of America v. Robey, 399 F.2d 330 (8 Cir., 1968), the court said:
And in the most recent case we have seen (not cited in briefs), a federal court concluded in Simpson v. State Farm Mutual Automobile Insurance Co., 318 F. Supp. 1152 (1970) where the Indiana Uninsured Motorist statute was construed, that it would be unconscionable to permit insurers to collect a premium for a coverage which they are required by statute to provide, and then to avoid payment for a loss because of language of limitation devised by themselves.
The following excerpts are from "A Guide to Uninsured Motorist Coverage," by Professor Widiss, from which the Court of Civil Appeals quoted with approval:
The key words in our statute are "coverage * * * for protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles."
Here, the original plaintiff and appellee Jones was legally determined to have been damaged to the extent of $25,000.00. He was legally entitled to recover $10,000.00 from the driver Miller, and it was paid to him. Had he elected to sue his own insurer first, Safeco, he would have been legally entitled to recover $10,000.00 from it. But because Miller's insurer had already paid Jones $10,000.00, Safeco seeks to avoid payment under its "Other Insurance" provision.
We think the decision of the Court of Civil Appeals has added a maximum to the statute, making it read, in effect, "legally entitled to recover damages but in no event shall such damages exceed $10,000.00."
We think the majority view in this nation, as exemplified by the jurisdictions cited in (3) supra, is the better view, and we place Alabama in that group.
We hold that our statute sets a minimum amount for recovery, but it does not place a limit on the total amount of recovery so long as that amount does not exceed the amount of actual loss; that where the loss exceeds the limits of one policy, the insured may proceed under other available policies; and that where the premiums have been paid for uninsured motorist coverage, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.
This holding does not permit a recovery in excess of that amount to which the injured party was "legally entitled to recover" by virtue of the judgment against the uninsured motorist. By this latter statement, we do not consider that we are amending or adding to the statute. The statute limits recovery of damages to that amount to which the injured party is "legally entitled to recover" and that amount is legally settled prior to the claims under the statute and the policies.
The opinion of the Court of Civil Appeals and briefs of the insurer cite and rely on our recent case of State Farm Mutual Automobile Ins. Co. v. De La Cruz, 283 Ala. 167, 214 So. 2d 909. That case is not apt authority, and we note that the author of that opinion, Kohn, J., carefully observed that our Uninsured Motorist statute "was not in effect at the time of the present accident. We, therefore, decline at this time to decide the effect of this statute on such insurance provision as it is not necessary for a disposition of this case."
The judgment of the Court of Civil Appeals is reversed, and the cause is remanded to that court with directions to affirm the judgment of the trial court.
Reversed and remanded with directions.
LAWSON, SIMPSON, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur. | December 17, 1970 |
518be2b0-6185-4386-a4fa-e1274896e9f0 | Empire Home Loans, Inc. v. WC BRADLEY COMPANY | 241 So. 2d 317 | N/A | Alabama | Alabama Supreme Court | 241 So. 2d 317 (1970)
EMPIRE HOME LOANS, INC., a Corporation
v.
W. C. BRADLEY COMPANY, a Corporation, d/b/a Columbus Iron Works Company, and Sunbeam Heating & Insulating Co., Inc., a Corporation.
4 Div. 385.
Supreme Court of Alabama.
August 13, 1970.
Rehearing Denied November 19, 1970.
Samples & Floyd, Phenix City, for appellant.
Homer W. Cornett, Phenix City, for Sunbeam Heating & Insulating Co.
Paul J. Miller, Jr., Phenix City, for W. C. Bradley Co., a Corp.
*318 HARWOOD, Justice.
This is an appeal from a decree fixing the priorities between construction loan mortgagees and holders of materialmen's and mechanics' liens.
A. E. McCardle was a home builder in Russell County, Alabama. In 1967, he was the owner of several unimproved lots in three subdivisions which appear to be located in or near Phenix City.
McCardle set about to build houses on these vacant lots. To finance this operation, he executed separate first mortgages on six of the lots. These mortgages were to secure construction loans made by two lending agencies, Empire Home Loans, Inc., a Corporation, and the Phenix-Girard Bank.
Four of these mortgages were executed and recorded prior to the commencement of any work or improvements on the lots covered in the respective mortgages.
As to Lot 26, and Lot 24, both located in Block A, Section Two, of the Asbury Park subdivision, materials were delivered or construction work was begun prior to the recordation of the mortgages. The appellee W. C. Bradley Company had delivered materials of the value of $360.16 to Lot 26, and materials of the value of $879.38 to Lot 24, such materials being used in construction of a house on each lot.
All work done and materials furnished by the appellee Sunbeam Heating and Insulating Company in the construction of houses on all the lots, including Lots 26 and 24, was subsequent to the recordation of the mortgages.
The mortgages held by the two lending agencies were all foreclosed on 5 July 1968, and Empire Home Loans became the purchaser at the foreclosure sale.
After the foreclosure sale, Bradley filed a bill in equity and after setting forth the factual background of the transactions, prayed that all of the respective lots with the completed houses thereon be sold, and that from the proceeds of such sales its materialmen's lien be paid first to satisfy its liens with the balance of the proceeds of the sale to be paid out as directed by the court.
Sunbeam was granted permission to intervene in the proceedings. Its bill of intervention is similar to Bradley's and the nature of the relief sought was directed toward the same end.
The sufficiency of the bill, and the intervention bill is not questioned.
In short, both Bradley and Sunbeam asserted that their liens for labor and materials were superior to, and were to be accorded priority over, the mortgages on all the lots, whether such materials or work was furnished before or after the recordation of the mortgages.
Empire answered that all sums furnished under the construction mortgages were entitled to priority over the respective liens.
In the proceedings below, it was stipulated between the parties that both Bradley and Sunbeam had furnished materials or done work as to each lot, entitling each to a materialmen's or mechanics' lien and that such liens had been duly perfected in accordance with statutory requirements.
It was also stipulated that a sale and removal of the houses on each lot, should the court find that the liens of Bradley and Sunbeam attached to such improvements, would be a detriment to all the parties.
The value of each of the lots prior to the improvements, the amount owed on each mortgage on the date of foreclosure, and the amounts due Bradley and Sunbeam, were all stipulated. The value of the lots with the improvements thereon is not shown by the record. However, it is to be noted that the sums advanced under the construction mortgages are on an average in excess of five times the value of the lots in their unimproved state.
*319 The decree entered by the trial court ordered an individual public sale of the lots in their improved state and fixed the following priorities as to the net proceeds of the sales:
As to Lot 26, Bradley's lien of $546.54 plus interest from 24 April 1968, was established against the improvements on the lot, and was given first priority in the proceeds of the sale.
A lien in the amount of $2,500 (the value of the lot prior to construction of the house on the lot), with interest from 7 September 1967, was established in favor of Empire Home Loans, Inc.
Thirdly, Sunbeams' lien was fixed on the improvements on the lot.
As to the five remaining lots, including Lot 24, a lien was first given to Empire Home Loans on each lot respectively in the amount of the value of each lot in its unimproved state.
Liens were then established in favor of Bradley and Sunbeam on the improvements on the respective lots in the amounts of the value of materials or work furnished by the lienors.
A general provision was made that any proceeds remaining from the sales of the lots after payment of the liens as prescribed, were to be paid to Empire Home Loans toward satisfying any balance owed on advances made under the construction mortgages.
Except as to Lot 26, the effect of the decree was to give to Empire Home Loans a first lien on the proceeds from the sale of the respective lots only to the extent of the value of the lots in their unimproved state, even though the amounts advanced under the mortgage exceeded substantially such unimproved values, and went into the construction of the houses. Of course, the value of the labor and materials furnished by the lien claimants likewise went into the construction of the houses.
If it was reasonably certain that the sale of the properties would produce sufficient sums to pay all of these creditors, this litigation would probably not have arisen. Therefore it seems likely that after a sale of the properties the question that will be presented is how the loss is to be cast in the event the sales do not provide funds sufficient to satisfy the claims of the mortgagee and the lienees.
The priorities of the liens of mechanics and materialmen is governed by the provisions of Section 38, Title 33, Code of Alabama 1940. Before adverting to the provisions of Section 38 as it reads today, and has so read since its predecessor was amended radically in 1933, it will be helpful to refer to this predecessor statute since practically all of the decisional law on the question now presented results from cases decided prior to the 1933 amendment of Section 38.
By Section 8833, Code of Alabama 1923, the liens of mechanics and materialmen were given priority over all other liens, mortgages, or encumbrances created subsequently to the commencement of the work on the building or improvement.
As to the building, such liens were given priority over all other liens, mortgages or encumbrances, whether existing at the time of the commencement of the work, or subsequently created. The person entitled to such lien could have it enforced by a sale of the building, and the purchaser of the building or improvement might have it removed within a reasonable time.
Under Section 8833, and its predecessors, it was firmly established that even though mechanics' and materialmen's liens were given priority only as to the building, a court of equity had plenary power to mold its decrees in such form as to conserve the equities of all the parties; and might, when a removal of the building would in large measure operate as a destruction of the security, order a sale of the property as a whole, adjusting the priorities in the proceeds of the sale on equitable principles. *320 See Baker Sand and Gravel Co. v. Rogers Plumbing Co., 228 Ala. 612, 154 So. 591, for a full discussion of this point supported by numerous authorities.
When the entire property was thus sold to conserve the equities, the rule was that, as to the building, the materialmen's and mechanics' liens were superior to the mortgage lien, regardless of whether they were subsequent to the mortgage.
Under this rule, if the entire property did not bring a sufficient amount upon sale to pay all of the creditors, and sums greater than the value of the land in its unimproved state had been advanced, the construction mortgagee could well be "improved" out of his security for the amounts advanced over the value of the unimproved land. Baker Sand and Gravel Co. v. Rogers Plumbing Co., supra.
In Baker Sand and Gravel, supra, the court took note that while in some states the amounts advanced under a prior construction loan mortgage were given preference, in other states the lien holders and mortgagee were put on equal footing, pointed out:
Since its amendment in 1933, Section 38, Title 33, Code of Alabama 1940, reads in pertinent parts:
No change is brought about by the 1933 amendment as to the priority of the liens of materialmen and mechanics where such liens have attached prior to the mortgage. Under such conditions the liens of materialmen and mechanics attach to both the land and the buildings.
Under both Section 8833 and the 1933 amendment the liens of materialmen and mechanics created subsequent to mortgages attach to the building only, and are given priority over a prior existing mortgage. However, this priority of the materialmen's or mechanics' liens must be deemed to have been qualified and limited by the following language contained in the 1933 amendment:
A new element and significant element is introduced with the enactment of the 1933 Act. The words "without impairing the value or security of any prior mortgage" must be given purpose and effect. These are clearly words of limitation on the right of the mechanic or materialman to have sold and removed the new construction in satisfaction of his lien, i. e., the new construction must be separable from the land and removable without impairing the value or security of the mortgage. These words leave but one subject for further consideration. Do they mean the value or security of the property at the time of the *321 execution of the mortgage or do they mean the value or security of the mortgage itself and of sums advanced on its strength? If the former, the amendment was unnecessary, as already the law was clear that as to the value of the unimproved lot the construction loan was paramount. It follows that the legislative intent must have been to improve the value and security of the mortgage itself. It needs no argument to demonstrate that a construction mortgage which as to all sums advanced under it has priority of mechanics' liens is of more value and security than one impaired by mechanics' liens taking precedence to it except as to the value of the naked earth before the improvements are placed thereon.
If, as we have decided, there is no right to remove and sell the new building when such sale would impair the value or security of an existing mortgage, it follows that the lien of the existing mortgage to the extent of monies advanced thereunder, is paramount and prior to any mechanic's lien thereafter arising.
While under the 1933 amendment the materialmen's and mechanics' lien is yet given priority on the building, such priority may indeed be evanescent if the building cannot be separated from the land without impairing the value or security of the prior mortgage, for in such situations the mortgage retains its priority.
The value of the construction loan mortgages in this case was the amounts advanced under the mortgages. These amounts far exceeded the value of the lots in their naked state. It was stipulated that a removal of the finished houses on the lots would be detrimental to all of the parties. To give priority to the materialmen's and mechanics' liens created subsequent to the recordation of the construction mortgages would impair the value of the mortgages as to monies advanced which exceeded the value of the unimproved lot.
As to Lot 26, the lower court properly gave priority to Bradley's lien since the materials were furnished prior to the recordation of the mortgage.
However, since Sunbeam furnished no work or materials prior to the recordation of the mortgage, the court erred in limiting the lien granted Empire Home Loans, Inc., to the value of the lot in its unimproved state. This lien should have been for the amount of money advanced under the construction mortgage. Any proceeds remaining thereafter should then be awarded toward payment of Sunbeam's lien.
As to the remaining lots, since no work or materials were furnished either by Bradley or Sunbeam until after the mortgages were executed and recorded, the court erred in limiting the lien granted Empire Home Loans to the value of the respective lots in their unimproved state. Empire's lien should have been fixed at the amount of monies advanced under the construction mortgages, and thereafter as to any proceeds remaining, the liens for materials and for work and labor should be adjusted on equitable principles.
Prior to 1933, it would appear that the statutes governing materialmen's and mechanics' liens were weighted in favor of the materialman and mechanic. Since the 1933 amendment, the scales have been tipped in favor of the mortgagee where the mortgage is recorded prior to the commencement of the building operation and the building is inseparable from the land. Either policy is likely to produce inequities.
The vast building industry as operated today is largely conducted on a credit basis. The construction mortgagee furnishes the funds for the construction of a building. The materialmen furnish the materials, and the building contractor or his subcontractor supply the labor and work. All have contributed to the completed building, and all are more or less joint adventurers in the undertaking. In case things go awry and losses take the place of hoped for profits, then on whom should these losses fall?
Our observation, and it must be only an observation, is that as to construction mortgage, *322 and materialmen's and mechanics' liens, we see no reason why these losses should not be apportioned among such creditors in relation to the amounts contributed by each. Those states which provide that the construction mortgage and materialmen's and mechanics' liens shall have equal treatment seem to have a more equitable answer than does Alabama, which gives priorities where equality of treatment would be indicated.
However, this is a matter solely within the province of the legislature. The creation, enforcement, and priorities of materialmen's and mechanics' liens is governed by the prevailing statutes. Such statutes were first enacted in Alabama in 1821. Their legislative development is set out in detail in an article by Hon. J. Edward Thornton, entitled "The Judicial Enforcement of Materialmen's Liens in Alabama," 14 Ala.Law Review, p. 327. Another enlightening article entitled "Priorities Between Mechanics' Liens and Construction Loan Mortgages in Alabama," 23 Ala. Lawyer, p. 398, by Hon. Roy W. Scholl, is suggested reading for those interested.
Regardless of our views as to the wisdom of our statutes, our duty is to interpret the statute as it is written.
For the reasons set forth above, it is our conclusion that the Chancellor erred in those aspects of his decree fixing the priorities and amounts of the respective liens. Accordingly, this decree must be reversed, and the cause is remanded for the entry of a decree consonant with the views expressed in this opinion.
It is to be understood that nothing we have written above is to be deemed to displace the payment of costs as a first payment out of the proceeds of any sale of the properties involved.
Reversed and remanded with instructions.
LAWSON, MERRILL, MADDOX and McCALL, JJ., concur.
HARWOOD, Justice.
While no application for rehearing was filed in this case within fifteen days of the rendition of the judgment on appeal, the case was placed on rehearing by this court for further consideration of the questions involved. This action was taken within the special term of this court, the term during which the judgment and opinion was rendered and published.
Amicus curiae briefs have been received from parties questioning the soundness of our opinion, and from parties supporting and approving the same. These briefs and the authorities cited therein have received our attention, and the case has again received our careful consideration.
Amicus curiae counsel questioning the opinion, and who represent materialmen, have relied mainly on four cases which they contend should control the question presented, and doctrines of which cases would necessarily lead to a conclusion contrary to that reached by us.
These cases are Baker Sand and Gravel Co. v. Rogers Plumbing and Heating Co., 228 Ala. 612, 154 So. 591; Protective Life Insurance Co. v. Holland Furnace Co., 234 Ala. 38, 173 So. 379; Lary v. Jones, 237 Ala. 575, 187 So. 714, and Polakow v. Weldon, 242 Ala. 505, 7 So. 2d 85.
While the opinion in Baker Sand and Gravel, supra, was published in March 1934, counsel for the materialmen state in brief that: "It is true this case arose prior to the 1933 amendment." The opinion itself makes clear that it was based upon an analysis of Section 8833, Code of Alabama 1923. However, counsel argues that had the court felt that the law had been substantially changed by the 1933 amendment, such change would have been noted. Such *323 speculation by counsel cannot prevail in light of the fact that an interpretation of the 1933 amendment was not before the court in Baker Sand and Gravel, supra, but only pre-1933 statute codified as Section 8833 of the Code of 1923. Our present decision of necessity had to be based upon an interpretation of the 1933 amendment.
The original record in Protective Life Insurance Co. v. Holland Furnace Co., supra, which was decided in 1937, discloses that the mortgage involved was executed and recorded on 20 April 1925. The mechanics and materialman's lien involved was recorded in the Probate Office of Jefferson County on 23 February 1932, and the bill to declare and enforce the lien was filed 23 February 1932. Therefore this case was governed by Section 8833, Code of Alabama 1923, as it read prior to its amendment in 1933.
Lary v. Jones, supra, was decided in 1939. The opinion discloses that a bill was filed by a materialman to declare and enforce his lien, and a decree was rendered in favor of the materialman in 1931. A prior mortgagee was not made a party to this bill.
The mortgagee thereafter foreclosed his mortgage in May 1932, and purchased the property at the foreclosure sale, and took possession of the mortgaged property. In 1937 the materialman filed a bill to determine the priorities between his lien and the mortgagee's lien as to buildings erected on the lot. The court overruled a demurrer to the bill and the respondent-mortgagee appealed.
Again, the rights of the parties having been fixed prior to 1933, such rights were not to be determined under or affected by the 1933 amendment. Further, the court stated that the error mainly insisted upon was the bar of the statute of limitations, i. e., whether the latter action against the prior mortgagee was barred by the six months period fixed by Section 8855, Code of Alabama 1923, for proceedings to adjudicate and enforce a materialman's lien as against the owner. In the posture of the case the court had no occasion to consider the effect of the 1933 amendment.
Polakow v. Waldon, supra, involved the action of the Chancellor in overruling a demurrer to a bill to enforce a materialman's lien. This court reversed on the grounds that the demurrer was well taken in that the bill was indefinite and uncertain, and also that it failed to aver when the work on the building was commenced. An interpretation of the 1933 amendment was not presented in proceedings.
We find nothing in the above mentioned cases which should influence a conclusion different from that reached in our original opinion. The question squarely presented in this appeal involved an interpretation of the 1933 amendment. Such question has not previously been before this court insofar as our research discloses. Nor has counsel furnished us with any case which can be deemed influential.
Counsel for the materialmen assert in brief:
Adherence to this suggestion would impose an intolerable, if not impossible, burden on the lender. Assuming an effort be made by the lender to canvass every materialman and laborer in the area, a task hardly feasible as a practical matter, such a canvass would not affect those materialmen and laborers beyond the area of a construction job who may have furnished work or materials to the construction job. Nor do we see how an affidavit from the builder that *324 all bills have been paid, could foreclose unpaid laborers or materialmen from asserting their claims.
On the other hand, a materialman can easily determine the existence, or nonexistence, of a mortgage on the land in question by the simple expedient of an examination of the mortgage records in the office of the Probate Judge.
As stated by Mr. Scholl in his article, which has been referred to in our original opinion:
We are yet of the view that our original opinion correctly interpreted the effect of the 1933 amendment to Section 8833, Code of Alabama 1923, (Act No. 64, Acts of Alabama, Ex.Sess.1933, p. 54), which may be found as Section 38, Title 33, Code of Alabama 1940.
Opinion extended; rehearing denied.
MERRILL, BLOODWORTH, MADDOX and McCALL, JJ., concur. | August 13, 1970 |
0ef3fb88-8282-49f4-9858-35b7e48afc68 | Brown v. WRMA Broadcasting Company | 238 So. 2d 540 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 540 (1970)
Willie Mack BROWN
v.
W. R. M. A. BROADCASTING COMPANY, Inc., a Corporation, et al.
3 Div. 374.
Supreme Court of Alabama.
August 6, 1970.
Matthis W. Piel, Montgomery, for appellant.
Hobbs, Copeland, Franco, Riggs & Screws, Montgomery, for appellees.
BLOODWORTH, Justice.
This case was originally assigned to another justice of this court. It was recently reassigned to the writer.
Plaintiff appeals from a judgment of voluntary nonsuit, taken with leave to appeal, contending the trial court erred to reversal in sustaining defendant W.R.M.A. Broadcasting Company's demurrer to his complaint.
The complaint is as follows:
It is plaintiff's position that his complaint is an action for slander. Defendant W.R.M.A. Broadcasting Company accepts this position though it points out that radio broadcasts have been held to be libel, citing Metropolitan Life Ins. Co. v. Knickerbocker Broadcasting Co., (N.Y.) 172 Misc. 811, 15 N.Y.S.2d 193; Hryhorijiv v. Winchell, (N.Y.) 180 Misc. 574, 45 N.Y.S.2d 31, aff'd 267 App.Div. 817, 47 N.Y.S.2d 102. Since this issue is not directly presented to us on this appeal, we need not consider whether the action is libel or slander. For the purposes of this appeal, we consider the action to be slander, as the parties do.
Plaintiff contends the trial court was in error because it sustained the demurrer to the complaint. Defendant W.R.M.A. Broadcasting Company contends the complaint was demurrable because: there is a misjoinder of assault and battery and slander; the alleged slander is not slanderous per se, and plaintiff has failed to allege special damages; the date of the alleged slander is not set out; there can be no recovery for the alleged defamation because the police officer-plaintiff is a public official and it is not alleged to have been made with actual malice and with an awareness by defendant of its probable falsity.
As defendant aptly observes in brief:
We agree. Thus, we need only to consider whether the complaint is demurrable on any one ground. Crommelin v. Capitol Broadcasting Co., 280 Ala. 472, 474, 195 So. 2d 524 (1967).
It is clear from our decisions that in a slander action, to constitute slander actionable per se, the alleged slander must impute an indictable offense involving infamy or moral turpitude. Marion v. Davis, 217 Ala. 16, 114 So. 357, 55 A.L.R. 171 (1927), quoted with approval in Tonsmeire v. Tonsmeire, 281 Ala. 102, 199 So. 2d 645 (1967). We do not think the alleged slander here is actionable per se. We do not believe that being "fired and rehired" imputes an indictable offense involving infamy or moral turpitude; nor does "committing assault and battery" (assuming it is a part of the defamation charged). Dudley v. Horn, 21 Ala. 379; Gillman v. State, 165 Ala. 135, 136, 51 So. 722. "Infamy" is defined by Black's Law Dictionary, Fourth Edition, as:
"Moral turpitude signifies an inherent quality of baseness, vileness, depravity." Gillman v. State, supra.
However, as the court pointed out in Marion v. Davis, supra, viz:
"Per quod" is defined in Black's Law Dictionary, Fourth Ed., at p. 1293:
It seems clear that since no allegation of special damages is made in the complaint, the demurrers were properly sustained by the trial court.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.
[1] See discussion of "Per Se and Per Quod" in article, Blanton, Special Damage as an Element in Defamation Actions in Alabama, 2 Ala.L.Rev. 1, 6 (1949). See also article, Hare & Hare, Principal Alabama Actions in Tort, Part II, 22 Ala.L.Rev. 361, 399 (1970). | August 6, 1970 |
fc058271-3b52-4c0c-b239-a6532e2c10ff | Summerlin v. Bowden | 240 So. 2d 356 | N/A | Alabama | Alabama Supreme Court | 240 So. 2d 356 (1970)
Ina H. Bowden SUMMERLIN
v.
C. Eugene BOWDEN.
4 Div. 402.
Supreme Court of Alabama.
October 22, 1970.
Joe C. Cassady, Enterprise, for appellant.
Pittman & Hollis, Enterprise, for appellee.
MADDOX, Justice.
Complainant, appellant here, and the respondent formerly were husband and wife. The two jointly owned a house and lot in Coffee County, the deed to the property, in pertinent parts, reading as follows:
The parties were divorced in Coffee County in 1969 upon a complaint filed by the wife on the ground of physical cruelty. In the divorce proceeding the wife had asked the court to divest the husband of his interest in the real property, but the court refused.[1]
After the divorce, the complainant sought to have the court modify its decree regarding the house and lot, and specifically asked the court to give her full title to the property, which the court also refused.[2]
Complainant then filed this petition seeking a sale for division, it being stipulated by the parties that the land could not be equitably divided.
The trial court refused relief on the ground that there can be no sale for division where there exists a tenancy in common during the joint lives of the tenants with right of survivorship in the survivor unless all the tenants consent. Since the former husband refused to consent to the sale, the trial court dismissed the complaint, citing as authority our case of Bernhard v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965). In Bernhard, we were called upon for the first time to decide the question of whether property held under a joint tenancy deed with the right of survivorship could be sold for division at the instance of one of the tenants over the objection of the other. We there determined that the court could not supply the consent of an objecting tenant. Since, we have distinguished Bernhard and have said that the court can order a partition of the property when a divorce proceeding is pending and the parties have invoked the jurisdiction of the court. See Owens v. Owens, 281 Ala. 239, 201 So. 2d 396 (1967); Killingsworth v. Killingsworth, 284 Ala. 524, 226 So. 2d 308 (1969).
The trial court's action in the divorce proceeding is not before us, and we express no opinion about the result we might have reached had an appeal been taken from the final decree in the divorce proceeding.
Joint tenancies with the right of survivorship in cases involving husbands and wives can present problems when the parties are divorced.[3] However, the tenure *358 under deeds similar to the one here does not arise from the relationship of the tenants, or status, but from the deed creating the estate, and, therefore, divorce does not affect the rights of the parties. Hence, the rule we established in Bernhard, supra, that a sale for division could not be compelled if one of the tenants objects is controlling, even though the tenants in Bernhard were estranged and not divorced.
While Bernhard, supra, could be criticized as narrowly construing the provisions of Title 47, § 186, Code of Alabama (Recompiled, 1958),[4] which grants to circuit courts jurisdiction to sell for division any property held by joint owners or tenants in common, we see no reason to change the rule there expressed. Of course, we recognized in Bernhard, supra, that the problem was "difficult." Needless to say, all the problems were not settled in this area by Bernhard,[5] and doubtless we would be unable to write an opinion in this matter which would lay at rest all the questions and solve all the problems surrounding tenancies such as are here involved.
We do feel that we can safely say that the present Alabama law is to the effect that in cases involving deeds similar to the one here, there can be no compulsory partition in the absence of consent of the tenants, except in those cases where the tenants have invoked the jurisdiction of the equity court in a divorce proceeding with regard to the property in question.
In view of the construction which we have placed upon our partition statute, it is up to the Legislature in its wisdom to decide whether to make provision for the partition of property held by tenants in common, with right of survivorship, when the tenants are divorced even when one tenant objects.
The judgment of the trial court is due to be affirmed.
Affirmed.
MERRILL, HARWOOD, BLOODWORTH and McCALL, JJ., concur.
[1] The actual order of the court reads as follows:
"8. That the ownership, title, or interest of each party in and to the real property jointly owned by the parties as described in the bill of complaint remains unchanged and the court denies to the complainant the relief of divesting respondent of his interest.
9. That the complainant shall occupy, use, and take possession of the home jointly owned by the parties as support for the minor children and herself until further orders of the court. The complainant shall make the monthly mortgage payment of $103.64 and any insurance on the property. The respondent shall pay the property taxes on said property.
10. That the respondent shall pay the remaining balance due on debts owed to a plumber of approximately $30.00; the balance on the carpet of approximately $800; and the remaining balance due on insulation charges of approximately $180."
[2] In her petition, complainant stated that the former husband was claiming a right to come to the house at any and all times and go anywhere on the premises since he "still owned an undivided one-half interest in the property."
[3] See: Taxation of Estates in Which the Right of Survivorship Is An Incident, Gillon, 28 Ala.Law 38, 49.
[4] "The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of complainant or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to its own practices in equity cases."
[5] See: Joint Ownership of Property in Alabama, Rollison and Eshelman, 26 Ala. Law 400; Taxation of Estates in Which the Right of Survivorship Is an Incident, Gillon, 28 Ala.Law 38. | October 22, 1970 |
1f4840b6-7c4e-48c1-9fa5-8ef1c437d085 | Alabama Pub. Serv. Com'n v. Consolidated Transp. Co. | 239 So. 2d 753 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 753 (1970)
ALABAMA PUBLIC SERVICE COMMISSION et al.
v.
CONSOLIDATED TRANSPORT CO., Inc.
8 Div. 355.
Supreme Court of Alabama.
September 24, 1970.
*754 MacDonald Gallion, Atty. Gen. and Robert P. Bradley, Asst. Atty. Gen., for The Public Service Commission.
J. Douglas Harris, Montgomery, for Redwing Carriers, Inc.
Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for appellee.
LAWSON, Justice.
Under the provisions of the Alabama Motor Carrier Act of 1939 (Act 669, approved July 5, 1940, General Acts 1939, p. 1064), as amended, 1958 Recompiled Code of Alabama, Title 48, §§ 301 (1)-301 (51), Consolidated Transport Company, Inc., a corporation, hereinafter referred to as Consolidated, filed an application with the Alabama Public Service Commission, hereinafter referred to as the Commission, seeking a permit to operate as a contract carrier, by motor vehicle, in the transportation of cement, in bulk, in intrastate commerce, over irregular routes to all points and places within a radius of one hundred twenty-five miles of Decatur, Alabama.
Baggett Transportation Company, Phelps Trucking, Inc., Schwerman Trucking Company, Miller Transporters, Inc., and Redwing Carriers, Inc., all common carriers, with the possible exception of Schwerman, gave notice of protest to the granting of Consolidated's original application. Schwerman, at the time, may have been operating in Alabama only as a contract carrier. The record is not clear as to its status.
Baggett and Phelps withdrew their protests after Consolidated's application was amended by striking therefrom the words "irregular routes to all points and places within a radius of 125 miles of Dacatur, Alabama," and by substituting in lieu of those words the following: "To transport cement in bulk for the account of Missouri Portland Cement Company, a corporation, from the plant site or sites of Missouri Portland Cement Company in Decatur, Alabama, to any and all places within the State of Alabama."
Consolidated's application, as amended, was denied by the Commission. Consolidated thereupon appealed to the Circuit Court of Madison County, in Equity, the county of its residence, under the provisions of § 301(27), Title 48, 1958 Recompiled Code of Alabama. We recognize the fact that the 1958 Code is not an official Code, but for convenience we cite the appropriate sections of Title 48 of that Code rather than the appropriate sections of the Alabama Motor Carrier Act of 1939, supra, the provisions of which are not included in the 1940 Official Code of Alabama.
The Circuit Court of Madison County, in Equity, set aside the order of the Commission and remanded the cause to the Commission with directions to issue a permit to Consolidated as applied for in its application, as amended.
*755 As authorized by § 301(27), Title 48, supra, and § 90, Title 48, Code 1940, the Commission and Redwing (§ 80, Title 48, Code 1940) perfected an appeal to this court from the decree of the Circuit Court of Madison County, in Equity.
The Commission's order under date of July 29, 1968, in pertinent part reads:
In the court below the proceedings were controlled by § 82, Title 48, 1958 Recompiled Code, which section provides that the Commission's order shall be taken as prima facie just and reasonable; that no new or additional evidence may be introduced in the circuit court, with an exception not here pertinent; that the circuit court shall hear the case (appeal) upon the certified record "and shall set aside the order [of the Commission] if the court finds that: the commission erred to the prejudice of appellant's substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. * * *"
We must review the decree of the trial court without any presumption of its correctness. We are governed by the same rules in our review as was the circuit court, so we will review the order of the Commission as though the appeal from the Commission's order had been taken directly and primarily to this court. Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409; Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So. 2d 401; Alabama Public Service Commission v. Decatur Transfer & Storage, Inc., 257 Ala. 346, 58 So. 2d 887; Alabama Public Service Commission v. Redwing Carriers, Inc., 279 Ala. 659, 189 So. 2d 342.
The standards which govern the Commission in a case of this kind, involving an application for a permit to operate as a contract carrier, have been said to be (1) that the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of the statute and the lawful requirements, rules and regulations of the Commission thereunder; and (2) that the proposed operation to the extent authorized by the permit will be consistent with the public interest. Otherwise the application should be denied. Alabama Public Service Commission v. Nunis, supra; Alabama Public Service Commission v. Decatur Transfer & Storage, Inc., supra; § 301(11), Title 48, 1958 Recompiled Code of Alabama. In fact, the section last cited reads, in part, as follows:
The order of the Commission set out above shows on its face that the Commission *756 denied Consolidated's application, as amended, on the ground that the service which Consolidated proposed to render "would not be consistent with the public interest." It follows that the Commission did not base its denial of Consolidated's application, as amended, on the ground that Consolidated was not fit, willing and able to properly perform the service of a contract carrier by motor vehicle, etc. See Alabama Public Service Commission v. Nunis, supra.
In the order here under review, the Commission merely expressed the opinion and found "* * * that the proposed service would not be consistent with the public interest * * *," and therefore ordered that the application be denied. The language last quoted above, though not a finding of fact, constitutes an application of the law to the facts. Alabama Electric Cooperative Inc., v. Alabama Power Co., 274 Ala. 332, 148 So. 2d 613.
As observed in the Higginbotham case, supra, since there is no finding of facts by the Commission, in considering whether the Commission erred in applying the law to the facts we must consider the evidence in the light most favorable to upholding the order of the Commission and without weighing the conflicting evidence. In other words, we do not weigh the conflicts in the evidence, but accept as true those tendencies of the evidence and reasonable inferences to be drawn therefrom which tend to support the action taken by the Commission. See Alabama Electric Cooperative, Inc., v. Alabama Power Co., supra.
With these rules in mind, we summarize the evidence in the light most favorable to the action taken by the Commission.
Missouri Portland Cement Company, hereinafter referred to as Missouri Portland, is a Missouri corporation with headquarters in St. Louis, Missouri. It began operating in Alabama in May, 1964, out of its bulk silo storage facilities in Decatur, which consists primarily of three silos, each of which has a nine-thousand-barrel capacity. Cement is shipped to Decatur by barge and then stored in a silo.
Missouri Portland's business in Decatur consists of selling bulk cement to certain customers in North Alabama, which consist of three types of "dealers," namely, ready mix dealers, concrete pipe and block dealers, and concrete products dealers. The latter apparently build or manufacture concrete septic tanks and concrete vaults. Missouri Portland's customers or dealers have limited storage facilities for cement, consequently they require prompt and immediate delivery because of the nature of their businesses. Delivery has to be made in a specially designed tractor-trailer, which we will sometimes refer to hereinafter as a truck.
Missouri Portland did not own any such truck, so it usually used Baggett Bulk Transport, a common carrier, to transport the cement which had been ordered by the dealers. Baggett had the required trucks. Missouri Portland found Baggett's service unsatisfactory, even though Baggett, whose terminal is in Birmingham, usually kept one truck at Missouri Portland's plant in Decatur from April of 1966 until April of 1968. The truck so stationed was not sufficient to meet the demands of Missouri Portland's plant. When Baggett was called upon to furnish additional trucks from its terminal in Birmingham, the trucks frequently arrived at Missouri Portland's plant in Decatur too late to make delivery and as a result Missouri Portland lost customers.
Prior to April of 1968 the only carrier, other than Baggett, which Missouri Portland contacted for service was Schwerman, which was not authorized by the Commission to haul cement from Missouri Portland's Decatur plant. The calls to Schwerman in Birmingham were made by the terminal clerk of Missouri Portland's Decatur operation upon instruction from his superior in St. Louis who, like the terminal *757 clerk, was unaware of the fact that Schwerman was without authority to service Missouri Portland's Decatur facility.
On one occasion when Missouri Portland called Schwerman for service, Schwerman contacted Herrin-Miller Transporters, Inc., the previous corporate name of Miller Transporters, Inc., which dispatched to Missouri Portland's plant in Decatur a truck which it had leased from Schwerman. The truck was apparently leased simply for the "trip." Two loads of cement were shipped by Missouri Portland in that truck on the same day.
Although the evidence was in conflict on the point, the Commission was justified in finding therefrom that prior to April of 1968, Redwing and Miller Transporters, Inc., had solicited business from Missouri Portland, but without success.
Although it had not expressed to the Commission its dissatisfaction with Baggett nor accepted the services of Redwing or Miller, nor made any investigation as to whether the services of any other common carrier were available to it, Missouri Portland early in 1968 decided to try to arrange for its cement to be delivered to its customers by a contract carrier.
Mr. Lee Matthews, of St. Louis, Missouri, general traffic manager of Missouri Portland, discussed the transportation problems of his company's Decatur plant with Mr. Gordon Mitchell, a businessman of Huntsville, Alabama.
Shortly thereafter, on March 28, 1968, Consolidated was formed for the purpose of supplying "equipment" to Missouri Portland in Decatur. Mr. Mitchell is the principal stockholder of Consolidated and its president. No person connected with Consolidated has any connection with Missouri Portland or any of its affiliated companies, financial or otherwise. Missouri Portland nor any of its affiliated companies gave Consolidated any financial aid.
Consolidated purchased three new 1968 Mac diesel tractors and three new Fruehauf trailers, which are specially designed and equipped for the hauling of cement in bulk. Those purchases were financed by a bank loan and were made "with the plan in mind to file application before the Public Service Commission for the rights of the contract carrier solely with Missouri Portland's plant in Decatur."
We will sometimes hereinafter refer to the Mac tractors and the Fruehauf trailers as Consolidated's trucks.
On April 1, 1968, Consolidated, as the first party, and Missouri Portland, as the second party, entered into a written contract which contained the following provisions:
The contract further provided that if Consolidated's services became inadequate, without proper cause, Missouri Portland could enter into other agreements for the performance of the services described in the contract; that Consolidated furnish all of its trucks and that all persons required to perform the services which Consolidated agreed to perform are to be employees of Consolidated, who is to be an independent contractor, not an employee of Missouri Portland; that Consolidated is not to enter into any other transportation agreement with a third party without the expressed written consent of Missouri Portland for the duration of the contract.
The contract contains language which shows, we think, that the parties thereto recognized that it was inoperative unless the Commission granted to Consolidated a permit to operate as a contract carrier to haul Missouri Portland's cement.
Although the written contract does not expressly so provide, testimony adduced before the Commission shows that if Consolidated's application, as amended, was granted, it would station its three trucks on the property of Missouri Portland in Decatur, where they would be available to Missouri Portland at all times. Consolidated would compensate Missouri Portland for that privilege if compensation was requested.
Consolidated filed its original application for a permit to operate as a contract carrier on April 12, 1968.
On April 15, 1968, Consolidated entered into a lease arrangement with Missouri Portland for the lease of its three trucks pending action by the Commission on Consolidated's application. The drivers of the trucks were employees of Consolidated, but the trucks were stationed at Missouri Portland's Decatur facility. Under this arrangement Missouri Portland was able to deliver cement to its customers without delay. During the two-month period which intervened between the date of the lease agreement and the date of the hearing before the Commission, Missouri Portland's business increased eighteen per cent.
An official of Missouri Portland clearly indicated that his company would much prefer to use Consolidated as a contract carrier than to use a common carrier whose trucks were stationed in Birmingham and indicated that while Missouri Portland did not want to be in the carrier business, as it was under the lease arrangement, that such an arrangement was preferable to service of the kind that company had received from common carriers. The official did concede, although reluctantly, that if Consolidated's application, as amended, was denied, Missouri Portland would use the services of common carriers "if we actually received a guarantee that service would be comparable to what we have now, and would be escalated." But that official stated that Missouri Portland would not put itself in a position of being a secondary shipper of any common carrier.
Redwing, one of the protestants, a common carrier, has the authority to transport cement in bulk from Missouri Portland's plant site in Decatur to other points in Alabama and it has eighteen trucks registered in Alabama of the type needed to transport cement in bulk. If the "traffic" merited it, Redwing would station at least three such trucks in Decatur to service Missouri Portland. Redwing is willing to and will give Missouri Portland the service it needs, according to the testimony of an official or employee of Redwing.
Miller Transporters, another protestant, a common carrier, under the authority which it holds and with its leased trucks, could take care of Missouri Portland's transportation needs and would station "equipment in the Decatur vicinity" if there was a demand for such service and "if anything like an attractive arrangement *759 like the one offered to the applicant here [Consolidated] were offered to Miller."
As we have therefore indicated, Schwerman did not have authority from the Commission to transport cement in bulk from Missouri Portland's plant site in Decatur to other points in Alabama. According to the testimony of the traffic supervisor of Schwerman's southern division, Schwerman at the time of the hearing before the Commission was operating in Alabama as a contract carrier but had pending before the Commission an application for the transfer to it of "the lime and cement authority" held by Miller Transporters.
That witness, when asked what would be Schwerman's position relative to furnishing service to Missouri Portland if it received Miller Transporters "lime and cement authority," answered, "It would be the purpose of Schwerman Trucking Company to provide the same type or similar service that we afford all of our shippers throughout the country. That is, if the volume will warrant the placement of equipment at any assigned location, this we do. If the volume is not such that would afford the placing of equipment adjacent to the shipper's property, of course, we give them reasonable service on dispatching. We maintain twenty-four hour a day dispatch through our system. And on reasonable notice we can furnish equipment any place."
Later on in his testimony, Schwerman's traffic supervisor gave an affirmative answer to the following question propounded to him by counsel for Schwerman: "* * Well, if this particular shipper, Missouri Portland Cement Company, offered to guarantee you a minimum of 240 truck loads of cement from Decatur, Alabama, to be transported in intrastate commerce from Decatur, would Schwerman, as a result of such guarantee, enter into an arrangement whereby Schwerman would exclusively dedicate equipment, three pieces or more to this particular shipper at Decatur?" We think it clear that the affirmative answer was based, in part, on a matter not included in the question, the transfer to Schwerman of the authority of Miller Transporters to haul lime and cement in bulk as a common carrier.
The question arises, Why did the Commission conclude from the facts summarized above that "the proposed service [the service proposed by Consolidated in its application, as amended] would not be consistent with the public interest"? As shown above, it was on that conclusion that the Commission based its order denying Consolidated's application, as amended.
The answer is not found in the Commission's order, but we think it clear that the answer to the question is that the Commission entertained the view that it would not be consistent with the public interest to grant Consolidated's application, as amended, because Redwing and either Miller Transporters or Schwerman would afford Missouri Portland all of the service it required, and that it would be injurious to those carriers and consequently the public would suffer if those carriers did not get Missouri Portland's business.
The Commission's order was rendered on July 29, 1968. At that time this court had written opinions in two cases which had some bearing on the question before the Commission.
In Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409, the Commission refused to issue a permit to Nunis to operate as a common carrier. Nunis appealed to the Circuit Court of Jefferson County, where the order of the Commission was reversed. The Commission appealed to this court and an intervenor, J. Owen Robins, doing business as a common carrier under the name of Robins Transfer Company, joined in the assignments of error. We affirmed the judgment of the circuit court.
In Nunis the Commission determined that there were sufficient carriers qualified with it to transfer the petroleum products as outlined in Nunis' application, "and that *760 the issuance of another permit would not be consistent with the public interest."
Since the opinion in the Nunis case was the first opinion written by this court which takes cognizance of the difference between the phrase "consistent with the public interest" (contract carriers) and the phrase "certificate of public convenience and necessity," (common carriers), we quote at length from that opinion:
"The phrase `consistent with the public interest' is therefore the controlling factor in our inquiry. This involves a quasi legislative as well as quasi judicial function by the commission, a body of experts, whose business calls for such decisions in its ordinary course. Alabama Public Service Comm. v. Crow, 247 Ala. 120, 22 So. 2d 721; North Alabama Motor Express v. Rookis, [244 Ala. 137, 12 So. 2d 183] supra.
"Attention is called to the difference in the finding necessary for contract carriers, that is, `consistent with the public interest,' and for common carriers, that there must be a `certificate of public convenience and necessity'. Section 301(8), Title 48, supra.
"A contract carrier can give preferential service, and is not limited to schedules or routes: a common carrier is thus bound. The service here proposed to be rendered by appellee is based on a rate nearly twice as much as that fixed for common carriers. The United States Government is the proposed customer at that rate. There is only one common carrier, the intervenor in this proceeding, J. Owen Robins, who has such a certificate of convenience and necessity, and who at present may be in position to carry such products in bulk between the designated termini, when consistent with his obligations as a common carrier. He has not done so in the past nor solicited such business. This carrier cannot extend the preferential service nor other advantages of a contract carrier.
"There is no evidence to show that the performance of the service by Robins will satisfy the needs of the proposed customer of appellee, Nunis. Robins has not been carrying such products for this customer. Nunis had done so as feature of interstate shipments, and has an interstate permit. But the customer's business here involved is on an intrastate status, requiring a permit now applied for. The granting of such permit will not disrupt existing business, nor will it result in unfair or destructive practices. It will in substance enable this appellee to extend an existing service to that which has a different technical status. The fact that the proposed business of appellee does not extend rights to the general public does not prove that its operation is inconsistent with the public interest. It is not a question of whether the public needs this service, as when a common carrier seeks a permit, but whether such service would be detrimental to the public interest. It is said to be a form of private transportation. It may be noted that the public has the benefit of such service by Robins, the common carrier. But no use by the public has been made of it. It does not appear that this proposed service will tend to prevent Robins from being able to render adequate service of that sort, or any sort, to the public, or in any manner disrupt his business. "The commission seemed to base its conclusion that the issuance of the permit to the limited extent here sought, would not be consistent with the public interest upon a further finding that there are sufficient existing carriers qualified with the commission to transport the petroleum products in bulk, as outlined in this application.
"We think the commission failed to distinguish between the phrase `consistent with the public interest' and `public convenience and necessity.' There was no other contract carrier thus licensed, or seeking a permit in respect to the business here involved. We think this proposed service would be consistent with the public interest, unless it would probably depreciate materially the ability of the lone common carrier who may be equipped so to engage in serving the public, and who alone is protesting this *761 application. It is not here a question of making a finding upon conflicting evidence, but of applying the undisputed facts to the legal principles which are controlling. A finding of facts is a different concept from the judicial function of applying the law to those facts. When the commission determined that the facts as found showed that the proposed permit would not be consistent with the public interest it was applying the law to the facts, and not making a finding of facts.
"We do not think that the facts as found in connection with the evidence in the case, or considered independently of the finding, are sufficient to justify the quasi judicial conclusion that the permit would not be consistent with the public interest." (Emphasis supplied) (252 Ala., 35-56, 39 So.2d, 413-414)
In Alabama Public Service Commission v. Decatur Transfer & Storage, Inc., 257 Ala. 346, 58 So. 2d 887, we followed Nunis in affirming the judgment of the circuit court which reversed an order of the Commission denying to Decatur Transfer & Storage a permit to operate as a contract carrier because existing service in the territory covered in the application was adequate "to meet the reasonable public needs" and because "protestants have sought the traffic covered in this application." In the case last referred to we said: "Here, as in the Nunis case [252 Ala. 30, 39 So. 2d 413], we think the Commission failed to distinguish between the phrase `consistent with the public interest' and `public convenience and necessity.'"
In Nunis and in Decatur Transfer & Storage there was only one common carrier which protested the granting of the permit. In this case there were two protestants, Redwing and either Miller Transporters or Schwerman, who wanted to render service to Missouri Portland. The protestants in this case testified that they had sought the business of Missouri Portland but so had the protestant in Decatur Transfer & Storage. The protestants in this case say that they would station three trucks in Decatur for Missouri Portland's use, one of them saying expressly that the trucks would be for the exclusive use of Missouri Portland, and from the testimony adduced on behalf of the other two protestants it is clear that such exclusive use was to be inferred. But these protestants are common carriers, that is, Redwing and Miller Transporters are common carriers, and if Schwerman comes into the picture it will be as a common carrier, in which event Miller Transporters would go out of the picture.
But a common carrier cannot extend the preferential service or other advantages of a contract carrier. Alabama Public Service Commission v. Nunis, supra. § 301(12), Title 48, 1958 Recompiled Code, reads:
In so far as we are advised, the Commission has not held that it would be consistent with the public interest for any of the protestants to operate as a contract carrier as well as a common carrier. The Commission should not sanction by indirection that which it cannot grant directly.
There was no evidence even remotely tending to show that the granting of a permit to Consolidated would probably depreciate materially the ability of the protestants to serve the public. Alabama Public Service Commission v. Nunis, supra.
So if our action here was based only on the application of the rules enunciated in Nunis and Decatur Transfer & Storage to the facts of this case, we would unhesitatingly *762 affirm the judgment of the Circuit Court of Madison County.
But we must consider our recent case of Osborne Truck Lines, Inc., v. Alabama Public Service Commission et al., 284 Ala. 166, 223 So. 2d 284 (April 10, 1969, rehearing denied, June 12, 1969).
In that case the Commission issued a permit to E. E. Carroll, d/b/a Carroll Trucking Company, to operate as a common carrier. The Circuit Court of Montgomery County affirmed. We reversed, distinguishing that case from Nunis on the facts.
In one of the concluding paragraphs in the opinion rendered in the Osborne case, we said:
In previous paragraphs in the Osborne opinion, it is shown that there were seven protesting common carriers who had the needed specialized equipment to service the shippers sought to be served by Carroll Trucking Company. All of the common carriers asserted their willingness and ability to meet the transportation requirements of those shippers and they contended that they wanted and needed the business of the shippers. The opinion in Osborne also contains the following language:
We see no occasion to overrule the opinion in the Osborne case, supra, nor do we feel compelled to reaffirm all that is said in that opinion. It is sufficient to say that the facts in the instant case are clearly distinguishable from the facts in Osborne.
In the case at bar, the evidence before the Commission showed beyond peradventure that Missouri Portland, in order to carry on its business in this state as it does in other states, needs three trucks at its disposal at all times, which trucks should be kept on the premises of that company. As we have heretofore indicated, despite the tendencies of the evidence to the effect that the protestants would be willing to station three trucks on or near the premises of Missouri Portland, as common carriers they cannot do so. Alabama Public Service Commission v. Nunis, supra. In other words, they cannot render to Missouri Portland a service which the evidence without dispute shows that it needs if it is to stay in business and protect an investment of at least $300,000.
In the case at bar, none of the protestants had ever served Missouri Portland except on the one occasion when Miller Transporters, at the request of Schwerman, dispatched a leased truck to Decatur to haul cement on one day for Missouri Portland, although there is evidence that Redwing and Miller Transporters had sought business from that company.
*763 In Osborne there was evidence to the effect that the protesting common carriers needed the business of the shippers which Carroll sought to serve. As we have heretofore pointed out, there was no evidence in this case that the protesting carriers needed the business of Missouri Portland or that the service proposed by Consolidated would tend to prevent any of the protesting carriers from being able to render adequate service to the public or in any manner disrupt the business of the protestants.
The Circuit Court of Madison County, in reversing the Commission, held that it had erred in its application of the law. We are in agreement with the trial court.
It follows that the judgment of the Circuit Court of Madison County is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C.J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | September 24, 1970 |
450ff322-4c5d-4e0f-8b85-b31efe4b4c39 | Pettis v. State Farm Mutual Automobile Ins. Co. | 239 So. 2d 772 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 772 (1970)
Sandra S. PETTIS et al.
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a Corp.
1 Div. 622.
Supreme Court of Alabama.
October 1, 1970.
*773 James T. Strickland, Mobile, for Sandra S. Pettis and Joseph J. Boswell.
Barry Hess, Mobile, for Robert C. Salley and Robert C. Salley, Jr.
Pillans, Reams, Tappan, Wood & Roberts, Richard W. Vollmer, Jr., and Geary A. Gaston, Mobile, for appellee.
McCALL, Justice.
The complainant-appellee, State Farm Mutual Automobile Insurance Company, called State Farm, issued to the respondent-appellant, Robert C. Salley, an automobile liability policy, agreeing to pay on behalf of the insured damages within prescribed limits, which the insured might become legally obligated to pay, because of bodily injury or property damage to others caused by accident arising out of the ownership, maintenance or use of appellant Salley's automobile.
The insurance also applied to non-owned automobiles under the policy while being used by the named insured, Salley, or by his relatives, if residents of the same household, provided the use be with the permission of the owner, or person in lawful possession of the automobile.
*774 The appellant, Robert C. Salley, Jr., a son of the named insured, Robert C. Salley, while using a "non-owned" automobile under the policy, which belonged to Reverend James Kelly, was involved in a collision with another automobile occupied by the two appellants, Sandra S. Pettis and Joseph J. Boswell. The latter two appellants filed actions at law against Salley, Jr. alleging wrongful injury and damages.
When confronted with the issue of coverage of Salley, Jr. under its policy, State Farm countered with this suit in equity, denying coverage of him on the single ground that, at the time of the accident, Salley, Jr. was using the "non-owned" automobile without permission of either its owner, Reverend Kelly, or the person in lawful possession of the automobile, Michael Kelly. The bill seeks to have the issue of coverage determined.
The question presented by the parties for us to decide is whether or not Robert C. Salley, Jr., as an additional insured under his father's policy, had implied permission from Michael Kelly, to use the automobile when the accident occurred, so as to bring him within the protection of the policy. Stated another way the crucial question is whether there was a course of conduct on the part of Kelly from which arose Salley, Jr.'s implied permission to use the automobile?
Appellants contend that there was at least a scintilla afforded from the evidence to sustain the issue that the appellant Robert C. Salley, Jr. was driving the automobile, with the implied permission of Michael Kelly, and that the trial judge should have submitted the issue to the jury for its determination. This is the only issue substantially argued under assignments of error (3) and (4), each of which raises objection to the giving of the complainant's requested charge 44, reading as follows:
"The court charges you to return your verdict for the complainant."
Assignments of error made on the record, but not substantially argued in brief will be deemed waived and will not be considered by the court. Rule 9, Revised Rules of Practice in the Supreme Court, Appendix to Title 7, Code of Alabama, 1940, Recompiled 1958. In view of this rule we will consider only assignments of error (3) and (4); and further, questions not argued under either of these assignments will not be ruled on. Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 544, 179 So. 2d 287; Lunney v. Southern Ry. Co., 272 Ala. 611, 133 So. 2d 247; American National Bank and Trust Co. v. Powell, 235 Ala. 236, 178 So. 21.
If there was any evidence, or reasonable inferences to be drawn from the evidence, that Salley, Jr. had Michael Kelly's implied permission to use the automobile when the accident occurred, the issue should have been submitted to the jury. Alabama Farm Bureau Mutual Casualty Ins. Co. v. Robinson, 269 Ala. 346, 113 So. 2d 140; Ridgeway v. Sullivan-Long & Hagerty, 39 Ala.App. 341, 98 So. 2d 665.
The undisputed evidence shows that Salley, Jr. and young Kelly, who were then respectively sixteen and seventeen years old, were schoolmates and co-employees with part time employment at the same supermarket where they saw each other three or four days a week. Salley, Jr. had visited in Kelly's home one time and had attended the movies with him. They were good friends to the extent of these associations.
Over a period of several months while at work, Salley, Jr. had asked Kelly's permission on three occasions to drive the automobile to go for his lunch. One of these occasions was at lunch time earlier on the day of the accident. Kelly lent him the automobile for this limited purpose, and when Salley, Jr. used the automobile, he put gas in it. He said that this was the least he could do. On three other occasions, Salley rode in the automobile with *775 others driving who had Kelly's permission, and he likewise rode in it on the morning prior to the accident, but there is no evidence that Kelly knew of his presence in the automobile, and there is no evidence that Kelly and Salley, Jr. ever rode in the automobile together.
Kelly testified without contradiction that he never allowed anyone to use the automobile without his consent, and no one used it without his express permission, except Salley, Jr. on the single occasion of the accident. Kelly told Salley, Jr. not to use the automobile without his permission, and Salley, Jr. did not deny this, nor had he previously used the automobile without Kelly's consent.
Kelly left the automobile the evening of the accident on the supermarket parking lot while he went to a moving picture. He knew that, after he left the supermarket premises, Salley, Jr. would remain there from a half hour to forty-five minutes to clean up the store. The keys to the automobile had been lost for sometime, but the engine could be started by turning the ignition switch without a key. After completing his work that evening, Salley, Jr. started the automobile in this manner and drove away from the parking lot in pursuit of some friends in another automobile. He was on this personal mission, when the accident occurred.
While Salley, Jr. had previously ridden in the automobile on that day and used it with permission, we fail to see that these circumstances or Kelly's conduct otherwise, on that day, support a reasonable inference of permission for Salley, Jr. to drive off in the automobile for his own purpose, after returning it from his earlier permissive use.
We have held that in order to support an inference that one had implied permission to use the automobile of another for his own pleasure and purposes, there must be a course of conduct engaged in by the parties over a period of time prior to the use in question, or, if in the first instance, there must be particular circumstances, to justify an inference of implied permission. Alabama Farm Bureau Mutual Casualty Ins. Co. v. Robinson, 269 Ala. 346, 113 So. 2d 140.
The evidence must tend to show a course of conduct or practice on the part of the person whose consent must be had, with knowledge of the existing facts and circumstances, that supports a reasonable inference of permissive use of the automobile.
In Tomasetti v. Maryland Casualty Co., 117 Conn. 505, 169 A. 54, an authority previously cited by this court with approval, it is said:
Many pertinent factors may properly be considered in a determination of the question of whether implied permission existed on the occasion of the use, but whatever their nature, extent and pertinency, their result must be consistent with, and generate and support a reasonable inference that the driver had permission to use the automobile.
In applying this test we fail to find from the evidence where Kelly's course of conduct in the premises was such as to signify, and be compatible only with, an understanding consent amounting to permission to use the automobile for Salley, Jr.'s personal purpose on the occasion in question. Salley, Jr.'s use was contrary to and in complete disobedience of Kelly's express instructions not to use the automobile without his permission. Kelly's admonition is not consistent with conduct or behavior of a permissive attitude. After the *776 accident, Salley, Jr. and his father went to the Kelly residence to tell Reverend Kelly that his son did not know that young Salley had used the automobile. Neither does this action create a favorable inference of an understanding consent to use the automobile. We think that Kelly's favors toward his friend Salley, Jr. were no more than sporadic acts of indulgence that do not amount to a grant of a permit, a right, or a privilege to use the automobile without his permission.
Nor does the statement testified to by Salley, Jr., as having been made by Kelly on Monday following the accident on Saturday, change the situation. Salley, Jr. testified as follows: "I asked him (Kelly) if he was mad at me." He said "no, that it would have been all right if I had not wrecked the car." This ex post facto statement tends to show a ratification of the use of the non-owned automobile, but the use, if unauthorized, cannot be made effective by this statement so as to bring Salley, Jr. within the protection of the policy coverage.
In 3 Am.Jur.2d, Agency, § 185, p. 570, it is stated:
The subsequent expression of ratification of the use by Kelly cannot serve to impose retroactive liability on the insurer under the omnibus clause of the policy.
We conclude and hold that the facts are insufficient under the scintilla rule to imply permission to Robert C. Salley, Jr. to use the automobile and that he is not within the protection of the policy.
For the reasons stated the judgment is affirmed.
Affirmed.
LIVINGSTON, C.J., and SIMPSON, COLEMAN, and BLOODWORTH, JJ., concur. | October 1, 1970 |
012a9b4c-b779-4da6-b2c6-99c5d653663c | Gurganus v. Kiker | 241 So. 2d 113 | N/A | Alabama | Alabama Supreme Court | 241 So. 2d 113 (1970)
David GURGANUS
v.
Douglas KIKER and Mable Kiker.
6 Div. 670.
Supreme Court of Alabama.
July 10, 1970.
Rehearing Denied November 12, 1970.
*114 Skidmore, Skidmore & Crownover, Tuscaloosa, for appellant.
Robert V. Wooldridge, Jr., Tuscaloosa, for appellees.
PER CURIAM.
This is a statutory ejectment suit. The complaint was filed in the Circuit Court of Tuscaloosa County on July 31, 1967, by Douglas Kiker and Mable Kiker against David Gurganus. There was a demand for a jury trial made by the plaintiff, but when the case was called for trial, the jury demand was withdrawn. Defendant's demurrers were overruled and a plea of the general issue in short by consent was filed. On January 9, 1968, the cause was tried by the court without the intervention of a jury. At the conclusion of the trial, the court took the cause under submission.
On March 22, 1968, the court issued the following:
We observe that appearances of counsel show Mr. Robert V. Wooldridge, Jr., on behalf of plaintiff, and Mr. Jack H. McGuire on behalf of defendant. Later, counsel, here appearing for appellant, filed in the Circuit Court a motion for a new trial.
On March 26, 1968, the formal judgment was signed and filed. The judgment was rendered in favor of plaintiffs and against the defendant for the possession of the property as described in the complaint, to wit:
Thereafter, and on April 25, 1968, a motion for new trial was filed. The motion was later taken under submission, and thereafter overruled on November 22, 1968.
It is the defendant's contention in brief that the plaintiffs did not meet the burden of proof, also, that the judgment was not supported by the evidence. It is contended than no one could sue defendant after February 21, 1957, which ended the statutory period of ten years.
The plaintiffs claim title by conveyance in March, 1962. At that time, Mable Gurganus Kiker owned the land in the South half of the NE ¼ of this section. The defendant was her father-in-law, plaintiff having married one of his sons. Following his death, she married Douglas Kiker.
The triangular strip of the land in dispute is located in the NW corner of the NE ¼ of the SE¼ of the Section and is bounded on North and West by the Quarter Section lines. The eastern and southern boundary is the Alabama Highway No. 69.
Plaintiff's Exhibit #1, a map, engineered to scale, shows the area in dispute and the surrounding areas. This map was used during the trial in the examination of many of the witnesses. Plaintiff testified there was a road that "runs from the highway over to your house." This roadway splits the disputed strip in half.
It seems from the evidence that there was general recognition that there was some "mix-up" on record concerning this disputed stripdue possibly to an error in the description in one of the deeds.
On direct examination of plaintiff Douglas Kiker, he testified, in part, as follows:
"Q. Now, immediately before this suit was filed, did you have any conversations with the Defendant with respect to any claim he might have to this property?
"A. Yes sir, we talked about it on numerous occasions in a friendly fashion. We never had any hard words over it I wouldn't think.
"A. Yes, sir, he brought the abstract back. I don't know, he kept it maybe a week or two. It was quite a few days and when he brought it back he told me he had changed his mind and he would try to hold the land through possession.
"Q. He had decided to try to hold it through possession?
On direct examination, Plaintiff, Mable Gurganus Kiker, gave the following testimony:
"Q. Now since 1962, from the time you bought that property up until immediately sometime soon before this property was purchased, did the Respondent make any claim to you with respect to that property?
"A. My husband was going to put a fence up out there.
"A. He would abide by the abstract. If it was ours we would pay it, but it would be settled once and for all.
We have carefully checked the testimony of the defendant, Mr. Gurganus, and cannot find a denial of either conversation with the plaintiffs. At least, it would appear that the defendant recognized the existence of an error in description that brought on the dispute of ownership.
Plaintiff's Exhibit #2 was an abstract of title covering the property in dispute and appears in the transcript.
Five witnesses testified for the plaintiff and seven for the defendant. Most of them had lived nearby for many years. On occasions, counsel would point, or refer, to the map and ask the witness something in relation thereto. As an example, we quote from Question and Answer on cross examination of the witness, defendant Gurganus, as follows:
"Q. Show me on the map what you took possession of?
"A. This part there, along there."
This recurred in examinations of other witnesses. While we feel certain the trial judge saw on the map or drawing where the witness indicated, there is no way the writer here, or any member of this Court, can have this information. While this map *117 is before the Court, it does not help in this regard.
In Garrett v. Kirksey, 279 Ala. 10, 181 So. 2d 80, we held:
We have read and studied the entire testimony. The evidence was extended as to the title and acts of possession concerning the area in litigation. Much of the evidence is denied or disputed and it is most difficult to resolve. Further discussion is not indicated.
The testimony was taken ore tenus before the trial judge, who had the witnesses before him, heard their testimony and observed their demeanor on the stand. His judgment will not be disturbed on appeal unless plainly wrong. Mangina v. Bush, et al., 286 Ala. 90, 237 So. 2d 479, June 18, 1970; Kirkman v. Pittman, 269 Ala. 159, 111 So. 2d 583; Aniton v. Robinson, 273 Ala. 76, 134 So. 2d 764.
We cannot say that the trial court was plainly wrong in its decree.
Other assignments of error not argued in brief are not considered, Rule 9, Revised Rules of the Supreme Court, 279 Ala. XXIII; Smart v. Wambles, 271 Ala. 651, 127 So. 2d 611.
We find no reversible error and the decree of the lower court is affirmed.
The foregoing opinion was prepared by J. Edgar Bowron, Supernumerary Circuit Judge, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN, BLOODWORTH and McCALL, JJ., concur.
PER CURIAM.
On application for rehearing, defendant contends that the evidence, even its most favorable interpretation to plaintiffs, did not authorize the trial court's rendition of judgment for the plaintiffs.
The offered bases of defendant's contention are two:
(1) That the plaintiffs' action was barred by the ten-year statute of limitations (Code of Alabama 1940, Recompiled in 1958, Title 7, Sec. 20), and
(2) That the evidence was not sufficient to warrant a finding that plaintiffs, or any of plaintiffs' remote grantors, or plaintiffs' immediate grantor, was ever in possession of the subject property.
Defendant's only claim to title asserted in this court is title by adverse possession.
The first answer to both of defendant's bases (1) and (2), stated above, is that defendant, in his conversations in 1963 with each of the plaintiffs, set out in our original opinion, impliedly admitted in substance that if an abstract of title on subject property was procured and showed that the plaintiffs had a better paper title than defendant, *118 he, the defendant, would abide by the abstract.
The abstract of title was procured and showed that plaintiffs had a better paper title than defendant.
Defendant did not question the correctness of the abstract.
The defendant's admission in the conversations between him and the plaintiffs, undenied by him, plus his failure to deny the correctness of the abstract of title, warranted a finding that defendant neither had title by adverse possession nor any right to retain possession by reason of the ten-year statute of limitations.
Defendant contends that the testimony of defendant's above-mentioned implied admission was "patently inadmissible" because the discussion between plaintiffs and defendant about the abstract of title "was at its best, a discussion seeking a compromise of the dispute between them."
We disagree.
Though a party's offer of compromise is not provable against him as an implied admission of the weakness of his claim, or of the strength of his adversary's claim, yet his express statement of a fact or even of his opinion (Strickland v. Davis, 221 Ala. 247, 128 So. 233), including a statement of claim or nonclaim, concerning the existence of a relevant fact, though made during negotiations for compromise, is admissible against him. York v. Chandler, 40 Ala.App. 58, 109 So. 2d 921, cert, den. 268 Ala. 700, 109 So. 2d 925 (reviewing earlier cases); McElroy, The Law of Evidence in Alabama, 2d Ed., Sec. 188.01(2) (3), Vol. Two, p. 11.
In York v. Chandler, supra, the Court of Appeals said:
We consider as especially applicable here the case of Ford v. Bradford, 212 Ala. 515, 518, 103 So. 549.
In that case, Ford sued Bradford for wrongfully cutting trees on Ford's land. A dispute existed as to whether Ford or Bradford owned the land on which the trees were cut.
The trial court rejected evidence offered by Ford that after some of the trees on the disputed tract had been cut by Bradford, Ford and Bradford agreed that Bradford "should go ahead and haul the timber which had been cut, and saw it, and give the plaintiff (Ford) one fourth of the lumber."
We held that the trial court erred in that ruling; in that such offered evidence, in connection with other evidence given by the plaintiff, tended to show plaintiff's ownership of the trees.
If it be assumed (which we should not) that evidence of the discussions between plaintiffs and the defendant in 1963 about the abstract of title, was "patently inadmissible," yet that evidence was not objected to by defendant, and having been admitted without objection should be given the same weight it would have been given had it been admissible. Hackmeyer v. Hackmeyer, 268 Ala. 329, 106 So. 2d 245; Birmingham Railway & Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548.
The rule that inadmissible evidence, admitted without objection, should be given the same weight as if it had been admissible, applies even when such evidence is inadmissible hearsay. McElroy, Law of Evidence in Alabama, 2d Ed., Vol. 2, Sec. 242.01, pp. 200-201.
The defendant's statements in the above-referred-to discussions about the abstract of title were not an offer of compromise.
*119 In a civil action, a party's extrajudicial admission is substantive evidence against him of the existence of the matter admitted; and, generally, a finding of existence of the matter admitted may be based on such admission without any other evidence of the existence of the matter admitted. Waller v. Simpson, 208 Ala. 333, 94 So. 343; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755; Gray v. Pankey, 211 Ala. 539, 100 So. 880; Shook v. Pate, 50 Ala. 91; McElroy, The Law of Evidence in Alabama, 2d Ed., Vol. 2, Sec. 180.01(4), p. 2.
Speaking further to defendant's contention that plaintiffs' action (which was commenced on July 31, 1967) was barred by the ten-year statute of limitations: The record shows that Douglas Kiker testified in substance that he had been living in his present home, which was near the subject property, since 1962, and that from 1962 up until 1967, the defendant was not in possession of the subject property.
This above-mentioned testimony of Douglas Kiker, if true, renders applicable the rule that the ten-year statute of limitations (Title 7, Sec. 20, supra) does not apply unless defendant was in adverse possession during the whole of the ten-year period next preceding the commencement of the action. See Ellis v. Stickney, 353 Ala. 86, 94, 42 So. 2d 779; Shorter v. Smith, 56 Ala. 208.
The above-mentioned testimony of defendant's nonpossession from 1962 to 1967 in connection with other testimony was sufficient to warrant a finding that no one was in actual possession during that period of time; and hence that plaintiffs were in constructive possession during that period of timein consequence of the rule that if no one is in actual possession of land, the law ascribes possession to him who has paramount legal title. Southern Railway Co. v. Hall, 145 Ala. 224, 226, 41 So. 135, 136; Brunson v. Bailey, 245 Ala. 102, 104, 16 So. 2d 9.
Prior constructive possession, based on paramount legal title, is sufficient to authorize recovery in statutory ejectment under a complaint in the form set forth in Title 7, Sec. 223, Form No. 32, Code of Alabama 1940, Recompiled in 1958. Veitch v. Hard, 200 Ala. 77, 80, 75 So. 405.
We come now to defendant's contention that there was no evidence warranting a finding that plaintiffs, or their remote grantors or plaintiffs' immediate grantor, were ever in possession of the subject land.
We think the evidence will support the conclusion that the trial court was not plainly and palpably wrong in finding that some of the predecessors in title of plaintiffs, as shown by the abstract, were in actual possession of the land in controversy.
The foregoing opinion was prepared by J. EDGAR BOWRON, Supernumerary Circuit Judge, and was adopted by the Court as its opinion.
Opinion extended and application for rehearing overruled.
SIMPSON, COLEMAN, BLOODWORTH, MADDOX and McCALL, JJ., concur. | July 10, 1970 |
a1903396-ddc4-407d-84a6-e7131a1e282b | Alabama Farm Bur. MCI Co. v. Government Emp. I. Co. | 240 So. 2d 664 | N/A | Alabama | Alabama Supreme Court | 240 So. 2d 664 (1970)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a Corp.
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Corp., and Joseph S. Szczepanski, etc.
4 Div. 331.
Supreme Court of Alabama.
November 5, 1970.
*665 Walker & Hill, Opelika, J. Pelham Ferrell, Phenix City, for appellant.
Smith & Miller, Phenix City, for appellees.
COLEMAN, Justice.
An insurer appeals from a decree in equity declaring that the insurer has the primary duty to defend Joseph S. Szczepanski (herein sometimes referred to as the driver) in four actions at law brought against him. In two of the actions, one Debbie Newsome is also a defendant. The plaintiffs in the actions seek to recover for damages allegedly resulting from the collision of two automobiles. Szczepanski was driving one of the automobiles which was a Corvair.
We reverse and hold that the appellant insurer is not liable to defend the driver in said actions.
The driver commenced the instant suit by filing his bill of complaint against the appellant and four natural persons. Appellant is Alabama Farm Bureau Mutual Casualty Insurance Company, a corporation, herein referred to as Farm Bureau. The four natural persons are, to wit: Doris M. Best and her husband, John D. Best; Jack D. Wells; and Debbie Newsome. Debbie Newsome is the daughter of Jack D. Wells. Doris M. Best and John D. Best are the plaintiffs who brought the four actions against the driver and Debbie Newsome.
The driver alleges in his bill that Farm Bureau issued its policy to Jack D. Wells as the owner of the Corvair automobile; that the Corvair had been delivered to the driver by Debbie Newsome who authorized the driver to drive the Corvair; and that he was driving it with the permission of Debbie Newsome at the time of the collision. A copy of the policy is attached to and made a part of the bill of complaint.
The bill of sale for the Corvair and a draft issued by Farm Bureau in payment for damage to the Corvair are also made exhibits to the bill. The driver avers that Farm Bureau has refused to defend the four actions against the driver and that it is necessary that the court determine whether Farm Bureau is liable to defend said actions.
The driver alleges that after the collision, Farm Bureau paid off for the collision damage to the Corvair; and on information and belief, the driver avers that, prior to the date of the collision, Farm Bureau acknowledged coverage of the car under its policy issued to Jack D. Wells and had in its possession the bill of sale for the Corvair showing the acquisition thereof *666 by Debbie Newsome and acknowledging "its liability and responsibility therefor and is now defending" Debbie Newsome in said actions to which she is a party defendant. The driver avers that Farm Bureau had previously issued another policy to Jack D. Wells "identical to" the policy on the Corvair.
The driver alleges that Farm Bureau, under its policy, is liable to defend the driver of any automobile covered by its policy who may drive the insured car with the knowledge and consent of the owner, and that Debbie Newsome, being the owner, permitted and authorized the driver to drive the Corvair, and he is entitled to have Farm Bureau defend him in said actions.
Farm Bureau filed its answer and cross bill. Farm Bureau admits that it issued its policy to Jack D. Wells as owner of the Corvair and avers that Farm Bureau has at all times treated and recognized Jack D. Wells as owner of the Corvair; that until several days after the collision, Farm Bureau had no notice that any other person was the owner or reputed owner of the Corvair. Farm Bureau refuses to acknowledge liability to defend the driver in said actions at law; denies that its policy covers the driver or provides for his defense by Farm Bureau; admits that Farm Bureau paid for damage to the Corvair, but denies that at any time prior to the collision Farm Bureau had notice or knowledge that Debbie Newsome was owner of the Corvair and denies that Farm Bureau had knowledge or possession of the bill of sale to Debbie Newsome. Farm Bureau admits that it is defending Debbie Newsome in the actions against her.
Farm Bureau makes respondents to its cross bill the following, to wit: the driver, the driver's father, the plaintiffs in the law actions against the driver, and also Government Employees Insurance Company, a corporation, herein referred to as Government. Farm Bureau avers that Government issued its policy to the driver's father and that under its policy, Government is obligated to defend the driver in the four actions pending against him.
After taking testimony ore tenus, the court rendered its decree which recites in part as follows:
The court further declared that Government is secondarily liable, within the limits of its policy, to pay the amount by which any judgment recovered against the driver in the four actions may exceed the limits of Farm Bureau's policy.
The evidence does not show that, prior to the collision, Farm Bureau had notice or knowledge that Debbie Newsome was the true owner of the Corvair or that Farm Bureau had possession or custody of the bill of sale for the Corvair.
The evidence shows that Debbie Newsome had been married and divorced and was nineteen years old on the date of the collision. She and her child were living in the home of her parents at the time of the collision and had been living there several months prior to the collision. She was working. The bill of sale shows that the Corvair was sold to "Debbie Wells Newsome." Her mother, Mrs. Wells, testified that she borrowed the money from the bank to buy the car. Debbie made the payments. Mrs. Wells testified that she handles practically all the business "with her family."
*667 Mrs. Wells called the local secretary of Farm Bureau, Mrs. Boss, on the telephone and gave the information for the insurance. Mrs. Wells told Mrs. Boss that Debbie and another daughter, Carol, were principal users of the Corvair, and that Mrs. Wells would be using it also. Mrs. Wells testified as follows:
The application is headed with the name and address of "JACK D. WELLS." Debbie Newsome and Carol Wells are listed under "Full Name of ALL DRIVERS." The application is signed: "J. D. Wells by Carol Wells." It seems to be admitted that Carol took the check to pay for the policy and signed the application.
On the policy, the "Policy Holder" is listed as "Jack D. Wells," and the bank is shown as "Lien Holder." The policy recites:
It will be noted that in the "omnibus clause" quoted above, in provision (3), liability coverage is extended to any other person using the automobile ".... with the express permission of the named insured."
This provision is different from the omnibus clause in many policies which do not require the "express permission" of the named insured but require merely the "permission" of the named insured. The decision in the instant case turns on the *668 construction and application of the words "express permission." Where only "permission" is required, the courts have held that the permission is sufficient to provide coverage if the facts justify a finding that either express or implied permission had been granted by the named insured or other person authorized to grant permission. See 5 A.L.R.2d 601. One court has said:
In Webster's Third New International Dictionary, Copyright 1961, page 803, the adjective, "express," is defined as follows:
Another court has said:
In the case at bar, there is no evidence that Jack D. Wells or his spouse affirmatively gave any direct or distinct permission for Joseph S. Szczepanski to drive the Corvair. Jack D. Wells testified:
".... Provisions in policies of insurance which clearly disclose the parties' real intent are not to be given a strained construction to raise doubts where none reasonably exist....." Chemstrand Corp. v. Maryland Casualty Co., 266 Ala. 626, 632, 98 So. 2d 1, 6.
"When the language of an insurance policy is clear and unambiguous it must be construed as it reads. The courts are not at liberty to raise doubts where none exist or to make a new contract for the parties. (Citations Omitted)" Central Mutual Ins. Co. v. Royal, 269 Ala. 372, 375, 113 So. 2d 680, 683.
To like effect see: Woodall v. National Life & Accident Ins. Co., 269 Ala. 606, *670 114 So. 2d 889; General Motors Acceptance Corp. v. Kendrick, 274 Ala. 566, 150 So. 2d 185; Calvert Fire Ins. Co. v. Green, 278 Ala. 673, 180 So. 2d 269.
The words, "express permission," are clear and unambiguous. The burden was on the driver to establish that he was driving with "express permission" of the named insured. The driver failed to carry that burden and is not entitled to have Farm Bureau defend him or pay any judgment which may be recovered against him in the four actions at law.
Appellees rely on the proposition that the term "permission," as used in the omnibus clause of automobile liability policies, is generally construed to mean either express or implied permission, and also on the proposition that ambiguities in insurance policies will be construed most strongly against the insurer. It may be conceded that the propositions so relied on are correct statements of the law, but the authorities cited by appellees are not cases where the policy required that the additional driver have the "express permission" of the named insured.[1]
The fact that Farm Bureau paid the named insured and the lien holder for the damage to the Corvair does not compel Farm Bureau to assume liability for the different and separate risk of loss for bodily injury and property damage arising out of operation of the Corvair. Bendall v. Home Indemnity Co., 286 Ala. 146, 238 So. 2d 177, syl. [4].
Neither do we think that liability to defend the driver can be placed on Farm Bureau on the ground that Farm Bureau is defending Debbie Newsome. She is named in the application as one of the drivers of the Corvair. Also, in the omnibus clause quoted above, the unqualified word "insured" includes the named insured and ".... also includes (2) his relatives ...." The named insured testified that Debbie Newsome is his daughter.
The evidence does show that Debbie Newsome gave her express permission for the driver to operate the Corvair at the time of the collision, but she is not the named insured and her express permission is not the express permission of the named insured which the policy requires.
The court erred in holding Farm Bureau liable to defend the driver. As it appears to us from this record, Government is liable to defend him.
Reversed and remanded.
SIMPSON, HARWOOD, BLOODWOROTH and McCALL, JJ., concur.
[1] Appellees cite:
"Harrison v. Densmore, 279 Ala. 190, 183 So. 2d 787;
United Security Life Ins. Co. v. St. Clair, 41 Ala.App. 243, 130 So. 2d 213;
Ocean Accident & Guarantee Corp. v. Bear, 220 Ala. 491, 125 So. 676;
State Farm Mutual Auto. Ins. Co. v. Williamson, 9 Cir., 331 F.2d 517;
Colonial Life & Acc. Ins. Co. v. Collins, 280 Ala. 373, 194 So. 2d 532;
North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So. 2d 764;
Chatfield v. Farm Bureau Mut. Auto. Ins. Co., 4 Cir., 208 F.2d 250;
Alabama Farm Bureau Mut. Cas. Ins. Co. v. Robinson, 269 Ala. 346, 113 So. 2d 140;
Standard Acc. Ins. Co. v. New Amsterdam Cas. Co., 7 Cir., 249 F.2d 847;
Georgia Cas. Co. v. Waldman, 5 Cir., 53 F.2d 24;
Pennsylvania Thresherman & Farmers' Mut. Cas. Ins. Co. v. Crapet, 5 Cir., 199 F.2d 850. | November 5, 1970 |
ad453cd3-4914-4929-8f6e-cddc7dd2247f | Scott v. Kilpatrick | 237 So. 2d 652 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 652 (1970)
Herman SCOTT, Individually and as Executive Secretary of the Alabama High School Athletic Association, et al.
v.
Bobby Wayne KILPATRICK, a minor who sues by his father and next friend, James Kilpatrick.
6 Div. 765.
Supreme Court of Alabama.
June 18, 1970.
*653 Oakley Melton, Jr., Montgomery, and Bankhead, Petree & Savage, Jasper, for appellants.
No brief for appellee.
HARWOOD, Justice.
Bobby Wayne Kilpatrick, a minor suing by his father and next friend, obtained a temporary injunction against Herman Scott, individually, and as Executive Secretary of the Alabama High School Athletic Association (hereinafter referred to as AHSAA), and also the three members of the Fifth District Board and certain named members of the Central Board of Control of the AHSAA, individually and as members of the two boards, enjoining them from enforcing a ruling of the Fifth District Board, issued 17 September 1969. This ruling declared Bobby Wayne Kilpatrick ineligible to play football for Cordova High School pending a final determination by the Central Board of Control, and a final hearing on the merits by the court.
The respondents Scott, et al., duly filed a motion to discharge, and a motion to dissolve, the temporary injunction.
A hearing was had upon these motions, the matters being submitted upon the sworn bill, the sworn answers of the respondents, and affidavits and exhibits offered by the respective parties.
Thereafter, the court entered an order in effect denying the motion to discharge and to dissolve the temporary injunction. It was further ordered that the complainant enter into an injunction bond in the amount of $300.00, as provided for in Section 1041, Title 7, Code of Alabama 1940.
The respondents have perfected this appeal from such order.
The pleadings, affidavits, and exhibits, show that in the Fall of 1968, the complainant was living at the home of his parents in the Martin School District and attending the Martin High School.
In the Spring of 1969, on his own accord, he transferred to Parrish High School, which was outside the Martin School District. He commuted to Parrish School each school day.
In August 1969, the complainant and his parents moved to Cordova, and in September the complainant transferred from Parrish High School to Cordova High School.
On 30 August 1969, an Eligibility Enrollment List was furnished the AHSAA by the principal of the Cordova High School and in reference to the complainant, it was indicated:
On the basis of this information, respondent Herman Scott orally informed officials of the Cordova High School that he saw no problem as to complainant's eligibility to play football for Cordova High in 1969.
*654 The complainant did play as a member of the Cordova football team in the first game of the 1969 season, which was against Parrish High School.
After the game, a protest as to the eligibility of the complainant to play for Cordova was lodged with the respondent Herman Scott, by the Parrish High football coach. The basis of the protest was that the complainant had transferred from his home district school (Martin High School) to Parrish High School for the 1969 Spring Semester while his family lived in the Martin High School District.
This was the first information Scott had that complainant had not in fact moved to the Parrish High School District, but had only commuted there from his family home in the Martin High School District.
Investigating the protest, Mr. Scott found the facts to be as set out above. He thereupon, as Executive Secretary of AHSAA declared the complainant ineligible to play on the Cordova High School football team for the year 1969, because of the provisions of Rule 1, Sec. 11, Exception 4, page 99 of the Rules of the AHSAA. In parts pertinent to this review Exception 4 reads:
The bill recites that "thereafter the complainant was told he could appeal the ruling (Scott's) to the Fifth District Board as aforesaid and did in fact appeal the same * * *."
The Board upheld Scott's ruling. So far as the record discloses written notice of the Board's decision was sent only to the Principal of the Cordova High School, and not to the complainant. It must be assumed that the appeal to the Board was processed by Cordova High School since complainant was not a member of AHSAA.
Certainly it is clear from the record that Cordova High School appealed the Board's ruling to the Central Board of Control of the AHSAA. A full hearing was then had by the Central Board, with the Principal and the Football Coach of Cordova High School being present and presenting their contentions as to why the complainant was not ineligible as found by the Executive Secretary (Mr. Scott), and the Fifth District Board.
The AHSAA is a voluntary association of various high schools of this state. Membership is on a school, or institutional basis. There are no individual members. The association has a constitution and by-laws, and representatives of the member schools have promulgated rules, which govern the member schools. Among other things, these rules look toward regulating the athletic programs of the member schools, and to this end have set out standards of eligibility for students who are to play on the athletic teams of the member schools. These standards pertain to age of the students, scholastic requirements, residence of the student, etc.
It is obvious that the purpose of the rule with which we are here concerned, that is the residence requirement of students, is to prevent the transfer of a student athlete from one school to another without regard to the student's home school district, whether such transfer be voluntary on the student's part, or the result of enticement or recruitment. It cannot be argued but that the rule tends to maintain the truly amateur character of high school athletics.
While we have found no Alabama cases in point, the courts of our sister states have considered virtually similar situations to the one here presented, and so far as our research discloses, the conclusions in all of *655 these cases have been of one accord. The principles developed in these cases are:
Participation in high school athletics is an extracurricula activity subject to regulations as to eligibility. Engaging in these activities is a privilege which may be claimed only in accordance with the standards set up for participation.
The member schools are in better position to promulgate rules governing participation in high school athletics than anyone else, and are fully cognizant of the reasons underlying such rules.
If officials of a school desire to associate with other schools and prescribe conditions of eligibility for students who are to become members of the school's athletic teams, and the member schools vest final enforcement of the association's rules in boards of control, then a court should not interfere in such internal operation of the affairs of the association. See Tennessee Secondary School Athletic Association, et al. v. Cox, et al., Tenn., 425 S.W.2d 597; Morrison v. Roberts, 183 Okl. 359, 82 P.2d 1023; Robinson v. Illinois High School Association, 45 Ill.App.2d 277, 195 N.E.2d 38; State ex rel. Ohio High School Athletic Association v. Judges of the Court of Common Pleas, 173 Ohio St. 239, 181 N.E.2d 261; Sult v. Gilbert, 148 Fla. 31, 3 So. 2d 729; State ex rel. Indiana High School Athletic Association v. Lawrence Circuit Court, 240 Ind. 114, 162 N.E.2d 250; Starkey v. Board of Education of Davis County School District, 14 Utah 2d 227, 381 P.2d 718.
Of course, if the acts of an association are the result of fraud, lack of jurisdiction, collusion, or arbitrariness, the courts will intervene to protect an injured parties rights. See 6 Am.Jur.2d., Associations and Clubs, Sec. 27, p. 453.
Clearly no fraud, collusion or lack of jurisdiction was present in the action of the AHSAA in the premises. Nor was there any arbitrariness in that only a rule of long standing was enforced.
We gather from his decree that the Chancellor apparently was impressed by the fact that Mr. Scott at first informed Cordova High that he saw no problem as to the eligibility fo the complainant to play at Cordova. However, this observation by Mr. Scott was on the basis of the information supplied by Cordova High School that, "He (complainant) moved to Parrish in 1969." After the protest by Parrish High School as to complainant's eligibility, it was disclosed that complainant had not moved to the Parrish school district, but commuted there from his home in the Martin school district. It would appear that under these conditions Mr. Scott was justified in his actions.
The Chancellor found that "the petitioner's right to compete for an opportunity to play ball in this cause involves a property right in that it is a well known fact that a good football player has an opportunity for a scholarship in many colleges of this state, and to declare petitioner ineligible to play football denies him an opportunity to compete for such scholarship. The Court in this cause distinguishes between the right to actually play football for a team and the right to compete for a position on the team, the right to actually play for a team which may be a privilege, but the right to compete for a position on a team certainly is a right due any male student."
Any basis for distinguishing between actually playing on a team, and competing for a position on the team eludes us. Each is dependent on a student's eligibility to participate in an extracurricula activity of the school.
But be that as it may, the facts show that the complainant was a junior in high school at the time he was ruled ineligible. It was also shown that the National Collegiate Athletic Association and the Southeastern Conference prohibit colleges from offering football scholarships to high school players until they have completed their senior year of participation in football in high school.
*656 It has been recognized a "chance" may have a pecuniary value where common sense would furnish a reasonable inference of probability of success. In this sense a chance would be a property right. See Western Union Tel. Co. v. Tatum, 35 Ala. App. 478, 49 So. 2d 673. Yet, the existence of a property right, like the existence of damages, cannot rest upon vague speculation.
We hold that the speculative possibility of the complainant acquiring a football scholarship as shown under the facts presented furnishes no basis for a finding that the complainant was deprived of any property right. Further, his predicament resulted from his own act in rendering himself ineligible.
The Chancellor found that the complainant had not been notified of the final hearing before the Central Board of Control, and therefore had no opportunity to appear at such hearing. The appeals to the District Board and to the Central Board were processed by Cordova High School. The matter pertained to the internal affairs of the AHSAA. Only the school was a member of that association. Cordova, and all other members of the association, had vested the final enforcement of the rules of the association in the District Board and the Central Board. The complainant was not a member of the association. He had no standing in the proceedings. The fact that he was not notified of the hearing before the Central Board is of no consequence.
It is our conclusion that the Chancellor erred in denying the respondents' motion to dissolve the temporary injunction theretofore issued. The decree is due to be reversed, and we are hereby entering an order dissolving the injunction issued by the court below.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON, MERRILL and McCALL, JJ., concur. | June 18, 1970 |
5788c2f1-887c-44b4-87c1-4efb76924ef9 | Wise v. Watson | 236 So. 2d 681 | N/A | Alabama | Alabama Supreme Court | 236 So. 2d 681 (1970)
Harold L. WISE et al.
v.
Elbert Ray WATSON, a Minor, etc.
4 Div. 384, 384-A.
Supreme Court of Alabama.
June 11, 1970.
*682 W. H. Baldwin, Andalusia, for appellants.
Powell & Sikes, Andalusia, for appellee.
McCALL, Justice.
The bill of complaint in this case was brought by a minor, Elbert Ray Watson, suing by his father and next friend, Regenal R. Watson, against his mother, Elizabeth G. Wise, formerly Elizabeth G. Watson, and his stepfather, Harold L. Wise, to have set aside and held for naught a deed executed on September 14, 1967, by the respondent, Elizabeth G. Watson (now Wise), to the respondent, Harold L. Wise, her present husband, and to vest the title *683 to the real property therein described in the minor complainant.
Prior to their divorce in 1963, the complainant's father, Regenal R. Watson, and mother, Elizabeth G. Watson, owned the real property constituting their homestead for their joint lives with the right of survivorship in the survivor of them, upon the death of either. When the parents became irreconciliably parted in their married life, they mutually agreed by executing a separation agreement, dated November 30, 1963, among other settlements, that custody of their minor son, the complainant, should remain with his mother, the respondent in this case, and that the father would pay stated sums and provide certain other contributions and benefits toward the support and maintenance of the mother and minor son.
In paragraph 9, of this settlement agreement, Watson agrees to convey the said home to his wife, subject to the following "restrictions" to be referred to in the deed and made a part of it, viz.:
The concluding paragraph of this separation agreement is as follows:
Regenal R. Watson and his then wife, Elizabeth G. Watson (now Wise), as grantors, next both executed and delivered a warranty deed dated December 5, 1963, purporting to convey the fee simple title to the property to Elizabeth G. Watson, as grantee, with her assuming and agreeing to pay the balance due on the outstanding mortgage lien against the property. The deed further recites:
The final decree of divorce dated December 6, 1963, to which the said separation agreement between the husband and wife appears to be attached, after dissolving the bonds of matrimony, between the parties adjudges and decrees as follows:
Thereafter, without mentioning any of the provisions, relating to the conditions under which the title to the real property might subsequently become vested in the complainant, which are contained in the said separation agreement and referred to in the deed to Elizabeth G. Watson and in the final decree of divorce, the respondent Elizabeth G. Watson conveyed said real property to the respondent, Harold L. Wise, by deed, dated September 14, 1967, containing full covenants of warranty, for a recited consideration of $10 and other valuable consideration. Actually, no money passed to the grantor, Mrs. Watson, from the respondent Wise, and said conveyance was admittedly made in contemplation of the marriage of Elizabeth G. Watson and Harold L. Wise. This deed *684 was recorded on the day of its execution in the records of the Probate Court of Covington County, Alabama. A week later, on September 21, 1967, the respondents, Elizabeth G. Watson and Harold L. Wise, were married to each other. The respondents contend that this conveyance was made to Wise to secure him in sums he was to expend on the subject property.
The complainant contends that the conveyance was voluntarily made in contemplation of the approaching marriage of the respondents and without any consideration for the purpose of avoiding the provisions of the separation agreement between Elizabeth G. Watson and Regenal R. Watson, or for the purpose of defrauding the complainant of the title to the real property. The respondents denied these allegations in their answer and filed a cross bill averring that when the deed was executed to Wise, it was understood and agreed between the parties that the house was in dire need of repairs, and that Wise made the repairs along with certain additions at an expenditure to him of $3,348.29. After this work was completed, the respondents with their respective children, moved into the house and have since occupied it as their home. Wise has continued to make the mortgage payments that Mrs. Wise had kept up until their marriage. The cross bill prays that the conveyance to Elizabeth G. Watson be declared an "outright conveyance" by Regenal R. Watson of his undivided one-half interest to her, but if mistaken in this that the court fix a lien on said undivided onehalf interest to secure Wise for the moneys spent by him in its improvement.
The trial court set aside the deed from Elizabeth G. Watson to Harold L. Wise, divested him of title to said real property and invested it in the complainant, Elbert Ray Watson, subject to the outstanding mortgage held by Liberty National Life Insurance Company.
The court further decreed a lien against the property in favor of Harold L. Wise in the amount of $4000 for sums spent by him on the property, plus $2,094.24 for mortgage payments made by him on the property, being a total of $6,094.24, which the court offset by $3000, in the complainant's favor for the reasonable rental of the property at the rate of $150 per month, charged against the said Wise, for his period of occupancy, leaving a balance decreed to be due him of $3,094.24. The court secured this by a lien in Wise's favor against said property.
When equity's jurisdiction is invoked, minor children are wards of the court, and it is the court's duty to guard and protect the interest of its infant wards with scrupulous care. Scott v. Mussafer, 223 Ala. 153, 134 So. 857; First National Bank of Oneonta v. Robertson, 220 Ala. 654, 127 So. 221; State v. Worthington, 25 Ala.App. 511, 149 So. 707, cert. den. 227 Ala. 204, 149 So. 709. In case of divorce of the parents, equity courts have inherent power to protect the welfare of the minor children born of the broken marriage and to make appropriate allowances for them, Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735; Butler v. Butler, 254 Ala. 375, 48 So. 2d 318; and, having once obtained jurisdiction over the children of divorced parents, the court retains jurisdiction during their infancy. Ex parte Ingalls, 256 Ala. 305, 54 So. 2d 288; Bridges v. Bridges, 227 Ala. 144, 148 So. 816; Porter v. Porter, 216 Ala. 169, 112 So. 646.
The separation agreement which appears to have been influenced by conciliatory negotiation between the Watsons became merged into the final decree, and while said agreement ceased to operate as such, the decree is as effective as any other decree with the same terms, whether or not there was ever an agreement to that effect. Callen v. Callen, 257 Ala. 226, 58 So. 2d 462; Russell v. Russell, 247 Ala. 284, 24 So. 2d 124; Montgomery v. Montgomery, 275 Ala. 364, 155 So. 2d 317. While the court is not controlled by such separation agreements of the parties, and may adopt or reject them as it seems proper, Russell v. Russell, supra; Williams v. Willams, *685 261 Ala. 328, 74 So. 2d 582, the court, no doubt, deeming this voluntary agreement to be fair, reasonable and just in its provisions for the support, care and maintenance of the divorced wife and minor son, and free from fraud, duress or other coercion, adopted its terms as a feature of its final decree of divorce.
The final decree of divorce with the separation agreement merged into it dictates the outcome of this litigation. Under it Regenal R. Watson was to and did convey to Elizabeth G. Watson his joint tenancy estate in the real property with his right of survivorship to the whole, and Elizabeth G. Watson was to and did subject her fee simple title to a determinable fee in the event she should remarry. The deed to the wife, executed pursuant to the separation agreement incorporates and makes that decree of divorce a part of it, as though fully set out therein, and the decree of divorce makes the settlement agreement a part of it as if fully set out therein.
We think that "remarry" utilized in these instruments, is the key word to a decision of the case and was the event which would vest title to the property in the complainant. An analogous situation, to a limited extent, prevailed in the case of Coffey v. Cross, 185 Ala. 86, 93, 64 So. 95. There, without the aid of a separation agreement, as here, the chancellor decreed a fee simple title in the wife, and declared that in the event she married or died, her son would have a life estate. There the court said:
Possibly the equity court contemplated the wife's remarriage in this case and sensed its duty to protect its minor ward. This may have prompted the court to specifically decree that in the event of the wife's remarriage, the title to the homestead would revert to her son. Again, anticipating children by the second marriage, the court deemed it fair and expedient, to award the property, the home, to the minor son of the divorced parents, they having jointly submitted this proposal to the court. But speculating on that court's reasoning for decreeing as it did, is not all important. The fact remains that it was competent for the court to decree that which it did in plain, clear and explicit language. As we have said, we have only to look to the decree in the divorce case as merged with the separation agreement for a solution of this aspect of the present case. This we do and hold that upon the marriage of the respondents, Elizabeth G. Watson and Harold L. Wise, the title to *686 the subject real property, eo instante, was divested from the respondent Wise and became vested in the complainant, Elbert Ray Watson, subject to the existing mortgage lien thereon, held by Liberty National Life Insurance Company.
While we question the propriety of the use of "revert," meaning "to return to" or "to go back to," Black's Law Dictionary, Revised 4th Edition, in the separation agreement, we, nonetheless, think its use makes sufficiently clear the intention of the parties that the fee simple title to the property would immediately vest in the complainant should his mother remarry.
Mrs. Wise contends that since she had not yet married, when she deeded to Wise, she at that time was privileged to convey a fee simple title to him. We do not think so. This construction is not in accordance with the plain and unambiguous language of the decree which incorporates the separation agreement as a part thereof. Judgments and decrees are to be construed like other written instruments. Schwab v. Schwab, 255 Ala. 218, 50 So. 2d 435; Johnson v. Harrison, 272 Ala. 210, 130 So. 2d 35. The legal effect must be declared in the light of the literal meaning of the language used. 49 C.J.S. Judgments § 436, p. 862 et seq. In the divorce suit there is no obscurity as to what the final decree determined. The condition upon which the fee is to be vested in the son is stated to be when the mother remarries. No exception is made in event this takes place after the conveyance. The mother could convey to Wise no greater estate in the property than she possessed. In Vaughn v. Brue, 245 Ala. 107, 111, 16 So. 2d 17, 150 A.L.R. 668 this court said:
Therefore the determinable fee which Mrs. Watson conveyed to the respondent, Wise, terminated when they married and became vested in the complainant.
Nor did the court err in overruling respondents' demurrer to the bill of complaint. We have already considered in this opinion each of the contentions argued in support of the demurrer and we conclude that they are not well taken.
The single ground cross-assigned as error by the appellee is that the trial court erred in imposing a lien in favor of the respondent, Harold L. Wise, against the property in the sum of $3,094.24. The trial court charged the minor complainant with the cost of repairs and additions to the residence located on the subject real property, which was paid by the respondent, Wise, and it imposed a lien in his favor against the real property to secure the payment of this sum. We are unable to agree with this aspect of the trial court's final decree for the reason so aptly stated in Richardson v. Little, 209 Ala. 351,96 So. 144:
See also Richardson v. Walden, 209 Ala. 267, 96 So. 145, and especially Phillips on Mechanics' Liens, § 108.
The court also charged the minor with the mortgage payments made by Wise totalling $2,094.24. This was the sole obligation of the respondent Mrs. Wise, not of the minor complainant, if she was to occupy the house after her marriage to Wise. We think though that an inference may be drawn that Wise continued the payments after marriage on behalf of his wife. Otherwise she would lose her right to occupy the house, and did lose it if we follow the respondents' argument. Treating the house payments as having been kept up by Mrs. Wise we hold she had a right to occupy the property as she has done. Therefore, the respondent Wise should not have been charged with $3000 representing the reasonable rental of the premises at the rate of $150 a month. Consequently no amounts of money are owing between the respective parties to this suit.
The decree of the circuit court is affirmed insofar as it sets aside the deed to Harold L. Wise and vests title in the minor, Elbert Ray Watson.
The decree of the circuit court insofar as it fixes a lien on said real property in favor of Wise and charges him with rent for use and occupation of said real property is hereby reversed and annulled.
A decree will be rendered here dismissing the cross bill of complaint. All costs are hereby taxed against the cross complainants.
Affirmed in part, reversed and rendered in part.
LIVINGSTON, C.J., and SIMPSON, COLEMAN, and BLOODWORTH, JJ., concur. | June 11, 1970 |
1b1c2e82-7683-4807-8cdd-ac37ce1a574b | Britton v. Doehring | 242 So. 2d 666 | N/A | Alabama | Alabama Supreme Court | 242 So. 2d 666 (1970)
Kenneth James BRITTON and Leonard A. Jackson
v.
Barbara Ann DOEHRING.
8 Div. 317.
Supreme Court of Alabama.
September 17, 1970.
*668 Lanier, Shaver & Herring, and John M. Heacock, Jr., Huntsville, for appellant Leonard A. Jackson.
Bell, Richardson, Cleary, McLain & Tucker, and James H. Porter, Huntsville, for appellant Kenneth James Britton.
Humphrey, Lutz & Smith, Huntsville, for appellee.
BLOODWORTH, Justice.
On original submission this case was assigned to another justice of this court. It was recently re-assigned to the writer.
This is an appeal from a $5,000 judgment for plaintiff based upon a jury verdict against the defendants on a wanton count in passenger's suit arising out of an automobile collision.
The primary issues presented are: whether appellant Leonard Jackson's request for the affirmative charge on the wanton count was properly refused; whether appellant James Britton's motion for new trial grounded on the insufficiency of the evidence to sustain the verdict was properly overruled; and, whether evidence that the plaintiff was not using an available seat belt was admissible in reduction of damages. Other issues presented by argued assignments of error will appear and be treated below. Having resolved these issues in favor of appellee, we hold this case should be affirmed.
The suit arose out of a collision between a car driven by Leonard Jackson and a car driven by James Britton, in which plaintiff Barbara Doehring was riding. The collision occurred on a residential street in Huntsville at approximately 8:30 a.m., on January 31, 1966. The temperature at the time was between 2 and 7 degrees above zero, and the street was completely covered with ice and snow. At the point of collision the two cars were moving in opposite directions and were so positioned that their left front fenders came into contact. The collision occurred just as Britton's car emerged from an opaque cloud of vapor emitted from the exhaust of a car parked near the street and just before Jackson's car reached this cloud of vapor.
The standard by which we review the trial court's action in overruling defendant's motion for new trial grounded on insufficiency of the evidence, and in refusing to grant defendant's requested affirmative charge are similar, though the former is more rigorous.
"The rule in this state is that in civil cases the question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish *669 a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla, in support of the theory of the complaint. Alabama Great Southern Ry. Co. v. Bishop, 265 Ala. 118, 89 So. 2d 738, 64 A.L.R.2d 1190.
"And we have said that when the affirmative charge is refused and the party who requested the charge appeals, we review the tendencies of the evidence most favorable to the opposite party regardless of any view we may have as to the weight of the evidence; and must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more probable. (Citations omitted) * * *" Alabama Power Company v. Scholz, 283 Ala. 232, 237, 215 So. 2d 447, 450.
And we have said that the decision of the trial court refusing to grant a new trial on the ground of insufficiency of the evidence will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Southern Ry. Co. v. Reeder, 281 Ala. 458, 204 So. 2d 808 (1967); Randolph v. Greason, 275 Ala. 89, 152 So. 2d 156 (1963).
"Wantonness has been defined as the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. * * *" Graves v. Wildsmith, 278 Ala. 228, 231, 177 So. 2d 448, 451 (1965). It has also been said that knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. Lewis v. Zell, 279 Ala. 33, 36, 181 So. 2d 101 (1965).
From the facts, that the street was 24 feet wide with shoulders 2 feet wide, that the cars collided while traveling in opposite directions, and that each defendant testified that he thought he was driving in the proper lane, it is a legitimate inference that one or both defendants' cars were traveling in the wrong lane of traffic. Taking the tendencies of the evidence most favorable to the plaintiff, it appears that defendant Britton (his car unequipped for snow and ice-covered streets), while driving at approximately 45 miles per hour on an apparently well-traveled street so iced over that neither its center line nor shoulders were visible, proceeded into a cloud of vapor which completely obscured his vision of the road ahead; it further appears that defendant Jackson, driving (with chains on his rear tires) at a lesser speed of 20 miles per hour but otherwise under the same hazardous conditions as Britton, continued at the same speed to the very edge of the same opaque cloud of vapor. We think this evidence is sufficient to sustain the trial court both in its refusal of appellant Jackson's request for the affirmative charge and in its overruling of appellant Britton's motion for new trial grounded on insufficiency of the evidence. Since the latter ruling is the basis for appellant Britton's only argued assignments of error, as to him, the judgment is due to be affirmed.
Appellant Jackson argues as reversible error the giving of plaintiff's written charge No. 7:
He contends that this charge permits the plaintiff to recover on a showing of something less than proximate cause in stating "the defendant brings on the disaster."
The language of this charge is taken almost verbatim from the opinion of this court in Fortson v. Hester, 252 Ala. 143, 146, 39 So. 2d 649 (1949). See authorities there cited. We have said the fact that a charge is taken almost verbatim from one *670 of our decisions does not necessarily mean it is proper for the court to give it. Hatcher v. Camp, 279 Ala. 475, 481, 187 So. 2d 232 (1966).
Nevertheless, we are not persuaded by appellant's argument that giving this charge conveyed to the jury the erroneous notion that plaintiff did not have to prove proximate cause but could recover on something less. Moreover, the court's oral charge, as well as other given written charges properly instructed the jury as to proximate cause.
Appellant Jackson assigns as error the admission of testimony by officer Kirkpatrick, a police officer who investigated the accident, as to the position of the cars on the street when he arrived at the scene of the collision. He contends that other testimony by officer Kirkpatrick, indicating he could not ascertain the position of the center line or the shoulders of the street, demonstrates that this testimony is based upon an inadequate opportunity to observe and thus constitutes opinion evidence.
However, we have held that where there is an opportunity to observe, though slight, a witness may testify as to what he observed, and the circumstances attending his observation merely go to the weight of the evidence, which is, of course, for the jury. Florence Coca Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65, 65 So. 2d 169 (1953); Gladden v. State, 256 Ala. 368, 369, 54 So. 2d 610 (1951).
The same authorities and reasoning dispose of appellant Jackson's contention that his motion to exclude defendant Britton's testimony ("To the best of my knowledge I was on my side of the road"), was erroneously overruled since Britton also testified that he did not know on which side of the road the collision occurred.
Appellant Jackson further assigns and argues as error the trial court's sustaining plaintiff's objection to the following question asked on cross-examination of officer Albright, one of the investigating officers:
However the following colloquy demonstrates that substantially the same question had previously been asked of the witness and answered by him without objection:
In our view, this renders the error, if any, harmless. Revised Rules of the Supreme Court of Alabama, Rule 45, 279 Ala. XXI, XLI.
Appellant Jackson also argues for reversal the trial court's refusal to give this written charge which he requested:
In a number of cases, this court has condemned charges predicated on the jury's finding for defendant if their minds are left in a "state of doubt and confusion." Nelson v. Lee, 249 Ala. 549, 560, 32 So. 2d 22 (1947); Allen v. Birmingham Southern R. Co., 210 Ala. 41, 97 So. 93 (1923); see also cases in Alabama Digest, Trial, Key 237(1)(3).
The vice in such charge is that it "placed too high a degree of proof upon plaintiff." Nelson v. Lee, supra. The degree of proof required is, of course, to reasonably satisfy. We think this charge is subject to the same vice and that there was no error in refusing it.
Appellant Jackson's argument under assignment of error No. 33 amounts to a mere assertion of error in overruling his motion for new trial, adding nothing to the assignment itself. Since it is not substantially argued it falls within the rule that assignments of error not substantially argued in brief will be deemed waived. See Brittain v. Ingram, 282 Ala. 158, 162, 209 So. 2d 653 (1968), citing Rule 9, Revised Rules of the Supreme Court of Alabama, 279 Ala. XXI, XXVI. Notwithstanding, we believe we answer all of appellant Jackson's principal contentions (made in motion for new trial) elsewhere in this opinion.
Finally, appellant Jackson urges as error the exclusion of his offer of evidence that the plaintiff had failed to use an available seat belt while aware of the dangerous driving conditions. Such evidence, appellant contends, would show that plaintiff had defaulted in her duty to mitigate damages and, to that extent, she could not recover for her injuries.
Appellee Doehring points out that the doctrine of mitigation of damages, frequently called avoidable consequences, applies only to a plaintiff's conduct subsequent to the wrongful act of the defendant; therefore, appellee's alleged negligent actfailure to fasten the seat belthaving occurred prior to the alleged wanton act of appellant Jackson, the doctrine of avoidable consequences does not apply.
Although this question is res nova in our State, we are of the opinion that the ruling of the trial court was proper and that a plaintiff's nonuse of an available seat belt is inadmissible to mitigate the damages. We thus add our say to a rapidly growing body of law characterized by a split of authority. Compare Mount v. McClellan, 91 Ill.App.2d 1, 234 N.E.2d 329 (1968) with Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968). See also "The Seat Belt Defense in Practice," published by Defense Research Institute, Inc., Milwaukee, Wisconsin, Vol. 1970, Number 6, Appendix C, for the latest collection of cases which have considered the seat belt defense. There the author lists 36 cases from Canada and the United States. We have located three more for a total of 39 cases. Two of these three cases, Clark v. State, 28 Conn.Sup. 398, 264 A.2d 366 (1970), and Miller v. Haynes, 454 S.W.2d 293 (Mo. 1970), were only very recently reported on May 30, 1970 and July 14, 1970, respectively; and the other is a Canadian case, MacDonnell v. Kaiser, 68 D.L.R.2d 104 (Nova Scotia 1968).
These 39 cases represent 18 state, 8 federal and 2 Canadian jurisdictions which have considered the seat belt defense either on the basis of contributory negligence or in mitigation of damages. Incidentally, we have been unable to find any case holding *672 that failure to wear a seat belt (when available) is contributory negligence per se.
We pause to note that we are not faced with the question whether nonuse of seat belts may constitute contributory negligence, since this case was tried solely on the wanton count. Nor do we express an opinion as to the effect of failure to wear seat belts in wrongful death cases. Whether there may be a distinction between such cases (where utilization of the seat belt might have prevented death) and cases of suits for personal injuries has been suggested. See Noth v. Scheurer, 285 F. Supp. 81 (U.S.Dist.Ct.E.D. New York 1968). Thus, we reserve decision on these issues.
There is only one case which we consider to squarely hold that failure to use a seat belt is admissible on the issue of mitigation of plaintiff's damages. Mount v. McClellan, supra,[1] Another case appears to support the proposition by way of dictum. Noth v. Scheurer, supra.
On the other hand, courts in eight jurisdictions have disapproved the admission of such evidence in mitigation of damages: Delaware, North Carolina, Michigan, Missouri, Oregon (a federal district court), Florida (a federal district court applying Oklahoma law), and Nova Scotia (Canada), by direct holdings and a Connecticut court by way of dictum.[1a] Courts in ten jurisdictions (Texas, Indiana, New Jersey, South Carolina, Louisiana, Maryland, Mississippi a federal district court), U. S. Court of Appeals, 7th Circuit, Illinois and Ohio) have discussed the issue but expressly reserved an opinion.[2]
We now refer to the basis for the decisions of other courts which have disallowed the seat belt defense in mitigation of damages.
In Lipscomb v. Diamiani, 226 A.2d 914, 917-918 (Del.Super.1967), some of the problems in admitting this evidence are discussed:
Likewise, in Brown v. Kendrick, supra, the Florida Court of Civil Appeals remarked:
The North Carolina Supreme Court in Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65, 73-74 (1968), in rejecting evidence of nonuse of seat belts in mitigation of damages, had this to say:
We confess that not all the reasons other courts have given in support of their decisions disallowing the seat belt defense in mitigation of damages impress us. But we are impressed, first of all, by the fact that of those jurisdictions which have decided the question only one has admitted evidence of nonuse to mitigate damages. This fact, in itself, is of some persuasive substance.
The reasons which do impress us as being sound and those on which we rely for our holding are:
(1) There is no statutory requirement in Alabama that seat belts be installed or that they be used.
(2) In the absence of a statutory requirement admission of evidence of nonuse of available seat belts can only be justified by resort to common law principles under our established rules of evidence. That is, by our taking notice of studies demonstrating that seat belts are effective protective devices and our requiring their use. In view of the controversy which still surrounds the effectiveness of seat belts, particularly in those situations in which injuries may even be attributable to wearing seat belts, we are unwilling now to accept such studies as of decisive probative value. If we adopted such a requirement would it not result in every passenger's being forced to "buckle up" or risk a jury's adverse verdict?
(3) To admit such evidence of nonuse would permit the jury to "compare the damages" which in practical effect might reach almost the same result as "comparative negligence"a doctrine unknown to Alabama law.
(4) To admit such evidence would create the anomalous situation in which a plaintiff in a vehicle equipped with seat belts would be penalized as compared with a plaintiff in a vehicle unequipped with seat belts.
(5) Requiring one to use available seat belts results in one who is lawfully using the highways having to anticipate that another driver may be negligent.
(6) Permitting the jury to compare the damages attributable to the negligence of a defendant with that attributable to a failure to use available seat belts would allow the jury to enter into the realm of speculation and conjecture.
(7) Adoption of such a requirement may conflict with traditional tort doctrines such as contributory negligence, avoidable consequences and last clear chance.
We do believe that if motor vehicles in Alabama are to be required to have seat belts installed and if passengers are to be made to wear them under all driving conditions, this decision should be left to the legislature, as several courts have suggested.
Perhaps we have already said more than necessary to reach our decision, but since we are presented with a question not heretofore considered by this court our discussion has been somewhat detailed.
In conclusion, we reiterate that we think the trial court did not err in sustaining objection to the proffer of the seat belt testimony and that this case should be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.
[1] See Miller v. Haynes, 454 S.W.2d 293 (Mo.1970), in which the Missouri Court of Appeals reads the holding in Mount v. McClellan as obiter dictum.
[1a] Clark v. State, 28 Conn.Sup. 398, 264 A.2d 366 (1970) (dictum); Lipscomb v. Diamiani, 226 A.2d 914 (Del.Super.1967); Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968); Romankewiz v. Black, 16 Mich.App. 119, 167 N.W.2d 606 (1969); Robinson v. Bone, 285 F. Supp. 423 (U.S.Dist.Ct.Ore.1968); Woods v. Smith, 296 F. Supp. 1128 (U.S.Dist.Ct.Fla.1969) (applying Okl. Law); MacDonnell v. Kaiser, 68 D.L.R.2d 104 (Novia Scotia 1968); Miller v. Haynes, supra.
[2] Jones v. Dague, 166 S.E.2d 99 (S.C.1969); Sonnier v. Ramsey, 424 S.W.2d 684 (Tex.Civ.App.1968); Kavanagh v. Butorac, 221 N.E.2d 824 (Ind.App.1966); Barry v. Coca Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (1967); Cierpisz v. Singleton, 247 Md. 215, 230 A.2d 629 (1967); Glover v. Daniels, 310 F. Supp. 750 (U.S.Dist.Ct.Miss.1970); Schomer v. Madigan, 120 Ill.App.2d 107, 255 N.E.2d 620 (1970); Bertsch v. Spears, 20 Ohio App.2d 137, 252 N.E.2d 194 (1969); Fontenot v. Fidelity and Casualty Co. of New York, 217 So. 2d 702 (La.App.1969); Lenrz v. Schafer, 404 F.2d 516 (7th Cir. 1968). We recognize that the absence of clarity in some of the opinions leaves room for different views over the proper contents of this list.
[3] Neither does Alabama require seat belts to be installed or used save in school buses. See Title 36, § 46(4) Code of Alabama, 1940, as amended, Recompiled 1958, 1969 Pocket Part, as to regulations governing approved "safety belts." See also Act No. 281, Acts 1969, p. 614, requiring school bus drivers to wear seat belts.
[4] In Alabama, it is the duty of one injured by the negligence of another to exercise ordinary care to reduce the damages, and he is bound to take such care of personal injuries as a reasonably prudent person would in like circumstances, and can only recover such damages as would have been sustained had such care been taken. Birmingham Ry., Light & Power Co. v. Anderson, 163 Ala. 72, 50 So. 1021. | September 17, 1970 |
73a5d4a4-a91c-4ce9-9d88-b02524da479d | Veal v. Phillips | 235 So. 2d 799 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 799 (1970)
Quinton VEAL
v.
Edwin F. PHILLIPS, d/b/a Phillips Oil Company and Shell Oil Company.
5 Div. 898.
Supreme Court of Alabama.
May 28, 1970.
*800 Walker, Hill & Gullage, and Phillip E. Adams, Jr., Opelika, for appellant.
Miller & Hoffmann, Montgomery, for Edwin F. Phillips, d/b/a Phillips Oil Co.
Samford, Torbert, Denson & Horsley, Opelika, for Shell Oil Co.
MADDOX, Justice.
This appeal is from a judgment of the Circuit Court of Lee County, at law, granting a nonsuit to the appellant because of the adverse rulings of the court in sustaining the demurrers of both defendants to the appellant's complaint as last amended.
This was a suit brought by appellant, Quinton Veal, plaintiff below, to recover damages for personal injuries incurred by him while he was working for the appellees as an independent contractor on property owned and controlled by the appellees, defendants below.
Appellants assign several errors on appeal but argue only the action of the trial court in sustaining demurrers filed by both defendants to Count 3 of the amended complaint.
The decision must turn on the pleading question presented. Therefore, we set out here the allegations of Count 3 of the amended complaint:
(Emphasis added) (Parenthesis added)
We will not set out the specific grounds of demurrer, but each defendant raised by demurrer (1) that the complaint failed to show that defendants owed any duty to the plaintiff; (2) that defendants breached this duty; (3) that the damages suffered by the plaintiff were proximately caused by defendants' breach of such duty; and (4) that the complaint failed to show an inapplicability of the Workmen's Compensation Laws.
Appellees contend that for aught appearing this is an action filed by an employee against his employer for injuries, and that the complaint should conform to the Workmen's Compensation Laws or else set up a state of facts showing the inapplicability of the law. The rule seems inapplicable here because the complaint shows on its face that the relationship of plaintiff and defendants was not that of employee and employers. Stanton v. Marsh, 274 Ala. 501, 150 So. 2d 363 (1963); Thompson Tractor Co. v. Cobb, 283 Ala. 100, 214 So. 2d 558 (1968).
Plaintiff, in Count 3, elected to aver negligence in general terms, followed by averments of particular acts constituting the alleged negligence, and the particular acts alleged fail to constitute negligence. Under such circumstances, the complaint was demurrable.
Furthermore, the complaint fails to show wherein the defendants failed to do that which they should have done or that they did that which they should not have done. The complaint alleges that the defendants were "in charge" of the premises where plaintiff was injured. Assuming, without deciding, that one "in charge" of premises owes the same duty to independent *802 contractors coming on the premises as does the owner of the premises, our decisions are to the effect that an owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor 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. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So. 2d 474 (1966).
While the complaint does allege that the "plaintiff was unaware of said unsafe place and said inherently and highly dangerous condition," there is no allegation that the alleged defect or danger was hidden and known to the owner. For aught that appears the plaintiff was just as cognizant of the alleged inherently dangerous condition, or should have been, as were the defendants. In fact, that plaintiff was "unaware" of the alleged dangerous condition of the premises does not mean that the alleged defects were hidden and latent. Plaintiff's lack of knowledge could have been the result of his own negligence.
Counsel for plaintiff earnestly insists that the complaint here specifically follows the averments of a complaint we held sufficient in Opelika Montgomery Fair Co. v. Wright, 255 Ala. 499, 52 So. 2d 412 (1951), reversing Opelika Montgomery Fair Co. v. Wright, 36 Ala.App. 1, 52 So. 2d 404 (1950). We have carefully examined the Opelika Montgomery Fair case and think it distinguishable from the case here. The complaint here shows that plaintiff was not a business inviteeas in Opelika Montgomery Fair. Also, the defendants' demurrer in Opelika Montgomery Fair was held by this court to fail to point out specifically the defect in the complaint in that action (255 Ala. at page 501, 52 So.2d 412). Furthermore, the factual differences between that action and the one here are substantial.
The action of the trial court sustaining defendants' demurrer to the complaint is without error, and the case is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur. | May 28, 1970 |
befff6ec-0662-4227-b6e5-4bf2fb02771b | Green v. Copeland | 239 So. 2d 770 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 770 (1970)
W. Cooper GREEN, as President of Board of Commissioners of Jefferson County, Alabama, et al.
v.
E. J. COPELAND.
6 Div. 679.
Supreme Court of Alabama.
October 1, 1970.
John S. Foster, Maurice F. Bishop, J. Howard Perdue, Birmingham, for appellants.
Huey, Stone & Patton, Bessemer, for appellee.
SIMPSON, Justice.
This is a zoning case. The facts were stipulated.
For some 22 years the appellee has operated a restaurant on the property involved, where he sold beer under a license issued by the Alabama Beverage Control Board. On October 23, 1967, the ABC Board issued its order indefinitely suspending appellee's license to sell beer on the premises. On February 6, 1968, the appellant Board of Commissioners adopted a zoning resolution changing the zoning of appellee's premises from C-3 (where the sale of beer is allowed) to C-1 (where the sale of beer is not allowed).
Thereupon, the appellee filed a bill for declaratory judgment contending that § 982, Appendix Volume 14, Code of Alabama, *771 entitles appellee to sell beer on his premises notwithstanding the new zoning regulation. That statute is the county zoning statute, enabling the county to pass zoning laws. It was enacted in 1947 and provides in part as follows:
The trial court entered its decree holding that the zoning regulation did not apply to appellee's premises because "there existed on the premises at the time the Legislature authorized said Board of Commissioners to regulate and control the zoning of real estate in the unincorporated area of Jefferson County a restaurant in connection with which the Complainant was duly and legally authorized to sell and dispense beer by the Alabama Beverage Control Board. The existing use or occupation of the premises is expressly excluded from the control of the governing body of the County by Section 982 * * *."
The appeal is from this decree.
As we view the case the question is whether the appellee is entitled to continue to sell beer on the premises notwithstanding the fact that he was not lawfully authorized to do so on the effective date of the new zoning regulation because his beer license had been suspended by the ABC Board.
Cases on this general problem have almost uniformly held that a property owner has a right to continue a non-conforming use of his property until such time as the right to do so is lost through the abandonment of such use before or after the adoption of the zoning legislation. See cases compiled at 18 A.L.R.2d 725, et seq.
It is, of course, equally true that under virtually all of the cases it is recognized that the use must be an actual use, as distinguished from a contemplated one, actually in existence at the time the zoning restriction becomes operative. Board of Zoning Adjustment for City of Lanett v. Boykin, 265 Ala. 504, 92 So. 2d 906; Rathkopf, The Law of Zoning and Planning, Vol. 2, Chapter 58, § 2, which collates cases from all jurisdictions so holding.
The question then is whether there was an actual non-conforming use of the premises in this case on the effective date of the zoning regulation when beer was not being sold because of the ABC suspension of the appellee's license.
The elements which indicate the presence of an "existing use" have been defined as follows:
To work an abandonment of the right to continue a non-conforming use connotes a voluntary act on the part of the owner. This court held in Board of Zoning Adjustment for City of Lanett v. Boykin, supra, after pointing out that the courts have generally held the word discontinuance, as used in a zoning ordinance, is equivalent to abandonment, that
See also 101 C.J.S. Zoning §§ 198, 199; 58 Am.Jur., Zoning, § 153.
We do not believe that the facts in this case meet the above test. There was no voluntary interruption of the sale of beer, but an enforced suspension because of the action of the ABC Board.
In Gauthier v. Village of Larchmont, 30 A.D.2d 303, 291 N.Y.S.2d 584, app. den. 22 N.Y.2d 646, 295 N.Y.S.2d 1028, 242 N.E.2d 494, the New York Court held where a hotel had included a bar prior to Prohibition, the bar had the same vested non-conforming status as the hotel despite the fact that Prohibition prevented the sale of liquor in the hotel two years before and twelve years after the zoning restriction was enacted.
So here we believe the forced suspension of the sale of beer by the ABC Board defeats any claim that there was a voluntary discontinuance of such non-conforming use.
Appellants argue that Fulford v. Board of Zoning Adjustment of City of Dothan, 256 Ala. 336, 54 So. 2d 580, requires a different result. We cannot agree. There the question was whether a non-conforming restaurant use could be extended to include the sale of beer. This court held that such extension would be an unauthorized one under the zoning ordinance. That is not the case here. In this case the appellee has lawfully sold beer in connection with the restaurant for over 20 years. The sale of beer is a part of the non-conforming use to which the appellee has a vested right until it is voluntarily abandoned.
Affirmed.
LIVINGSTON, C.J., and COLEMAN, BLOODWORTH, and McCALL, JJ., concur. | October 1, 1970 |
9f1b6346-d833-4a68-9847-9f5f7275c301 | State Ex Rel. Gregg v. Maples | 239 So. 2d 198 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 198 (1970)
STATE of Alabama ex rel. Warren Lowe GREGG
v.
James Herman MAPLES, Clayton Brock and A. C. Sharp, Jr., as Members of the Jury Commission of Madison County, Alabama, et al.
8 Div. 396.
Supreme Court of Alabama.
September 3, 1970.
Martinson, Manning & Martinson, Huntsville, for appellant.
Fred B. Simpson, Huntsville, for appellees.
LAWSON, Justice.
This is an appeal from a judgment of the Circuit Court of Madison County rendered on February 6, 1970, as amended by the trial court, ex mero motu, on February 12, 1970.
The pertinent provisions of the decree, as amended, read:
The "order" of September 23, 1969, was rendered in response to a motion filed by one Paul Allen Miller on August 21, 1969, in a criminal case, State of Alabama v. Paul Allen Miller, which was pending in the Circuit Court of Madison County. The said motion prayed for an order of the court directing the Jury Commission of Madison County to "organize a new jury roll and to empty and refill the jury box" on the grounds that the "present jury rolls do not contain a cross-section of citizens qualified to serve as jurors in Madison County, Alabama," and that "no fair and reasonably accurate method is used by said Commission to determine the qualifications of citizens of this County to serve as jurors," and that "all qualified citizens of Madison County do not have an equal opportunity to be chosen for the present roll of this County."
The District Attorney confessed the averments of said motion and consequently no evidence was adduced in support thereof.
*199 The "order" of September 23, 1969, which is alluded to in the amended judgment from which this appeal is taken, reads in part as follows:
ORDER
Judge David R. Archer, who rendered the order of September 23, 1969, apparently undertook to amend that order, ex mero motu, on December 16, 1969. The only changes effectuated in that part of the order of September 23, 1969, which we have set out above, by the so-called amended order of December 16, 1969, was to insert the word "primary" before the word "list" where it appears in line 2 of paragraph (1) and by substituting the word "should" for the word "shall" where that word appears for the second time in the second sentence of paragraph (1). We call attention to these changes solely for the sake of accuracy. The appellees do not place any importance on the changes, perhaps for the reason that Judge Archer's right to amend the order of September 23, 1969, ex mero motu, on December 16, 1969, is certainly questionable.
The so-called "Jury Refilling and Reorganization Plan," hereinafter referred to as the "Plan," contains many provisions in addition to those which we have set out above, but we see no reason to include them in this opinion.
On January 21, 1970, a petition was filed in the Circuit Court of Madison County styled State of Alabama ex rel. Warren Lowe Gregg v. James Herman Maples, Clayton Brock, and A. C. Sharp, Jr., as members of the Jury Commission of Madison County, Alabama, and against A. L. Smith, as Clerk of the Jury Commission of Madison County, which petition prayed in pertinent part as follows:
On the day the said petition for writ of mandamus was presented to him, Judge Archer issued a fiat to the clerk of the Circuit Court of Madison County directing her to issue an alternative writ of mandamus to each of the "respondents to the petition and be made returnable to me on the 29th day of January, 1970, at Chambers at 10:00 a. m. in the Courthouse at Huntsville, Alabama."
The said order or fiat contained the following language:
Pursuant to the fiat, an alternative writ of mandamus in approximately the language last quoted was issued by the clerk on January 21, 1970, returnable on January 20, 1970.
On January 29, 1970, the members of the Jury Commission and Pat Brookbank, successor to A. L. Smith as Clerk of the Jury Commission, filed their joint answer. The allegations of the answer were not traversed by the relator, and on February 5, 1970, the parties submitted the cause to Judge Archer for judgment upon the petition and the answer filed thereto.
On February 6, 1970, Judge Archer rendered a judgment vacating the alternative writ of mandamus theretofore issued, reinstating the order entered on September 23, 1969, in the Miller case, supra. On February 12, 1970, Judge Archer rendered the amended judgment which we have set out above, wherein the peremptory writ of mandamus prayed for by the relator was expressly denied.
The question on this appeal is whether the trial court erred in vacating the alternative writ of mandamus and in denying the peremptory writ of mandamus.
Under the "Plan" the name of no person can be placed on the jury roll in Madison *201 County unless the name of that person appears on the registration records or lists of that county as a registered voter. This limitation is a radical departure from the statutory system enacted by the legislature of this state, which system applies to Madison County, and is repugnant to so many aspects of that system as to constitute a usurpation of the authority of the legislature.
The procedure for the selection of jurors in most of the counties of this state, including Madison, is controlled by general statutes which are set forth in the 1958 Recompiled Code of Alabama. All statutory references to the procedure for the selection of jurors in Alabama as set forth in this opinion will be to Title 30, 1958 Recompiled Code, supra, and the 1969 Cumulative Pocket Part to Vol. 8 of that Code.
Each county in Alabama has a jury commission composed of three members appointed by the Governor, with some exceptions provided by local acts or general acts with local application. Madison County, as indicated above, is not within any such exception.
The jury commissioners are required to "make in a well-bound book a roll containing the name of every citizen living in the county who possesses the qualifications herein prescribed and who is not exempted by law from serving on juries." § 20, Title 30, as amended. It is provided in § 21, Title 30, as amended, in part as follows: "The jury commission shall place on the jury roll and in the jury box the names of all citizens of the county who are generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment; * * *." As a part of the procedural requirements, the names of persons on the jury roll must also be printed on separate cards, which are placed in the jury box. It is the duty of the clerk to see that the name of each person possessing the qualifications for serving as a juror and not exempted by law from jury duty "is placed on the jury roll and in the jury box." § 24, Title 30, 1958 Recompiled Code. The Alabama law further requires the jury commission and its clerk to scan the registration lists, the lists returned to the tax assessor, any city directory and telephone directories, and any and every other source of information, and to visit every precinct in the county at least once a year. § 24, Title 30, 1958 Recompiled Code of Alabama.
Despite the provisions of § 24, Title 30, supra, the "Plan" says to the jury commission that it may only consider the names of the persons who appear on the registration lists or records of the county.
The purpose of §§ 18, 20 and 24 of Title 30 is "to protect litigants and to insure a fair trial by an impartial jury." And "substantial compliance with these requirements is necessary in order to safeguard the administration of justice." Inter-Ocean Cas. Co. v. Banks, 32 Ala.App. 225, 227, 23 So. 2d 874, 875.
Some of the opinions wherein the aforementioned statutes are construed were written in recent cases, in which the appellants complained of the systematic exclusion of Negroes from juries in Alabama. In Fikes v. State, 263 Ala. 89, 81 So. 2d 303, it was held that the evidence at a hearing on a motion to quash did not support a finding that Negroes were systematically omitted from the jury roll. This court in Fikes, supra, said that "[t]here is no legal reason for quashing an indictment or venire simply because the jury commission did not put the name of every qualified person on the roll or in the jury box, in the absence of fraud (or a denial of constitutional rights)." (263 Ala., 95, 81 So.2d 309) Bell v. Terry, 213 Ala. 160, 104 So. 336; Wimbush v. State, 237 Ala. 153, 186 So. 145.
*202 That statement of the law was recognized by two federal decisions in granting injunctive relief to Negroes, but the court went on to say that "the law does require that the jury commissioners do not place so few names in the jury box as not to obtain a full cross-section of the county." Mitchell v. Johnson, 250 F. Supp. 117 (N.D.Ala., 1966); White v. Crook, 251 F. Supp. 401 (M.D.Ala., 1966).
In the Mitchell case, supra, the court said that "the purpose of the Alabama statutes is to insure at least a reasonable approximation to the requirements that jury venires include all qualified persons, and, hence, represent a cross-section of the community, with no significant groups being excluded without justifiable reasons; therefore, the procedures outlined by the Alabama statutes can and do serve * * * as a standard by which the actions of the jury commissioners can and should be judged." 250 F.Supp. at p. 122. And that the "sole purpose of these requirements is to insure that the jury commissioners will have as complete a list as possible of names, compiled on an objective basis, from which to select qualified jurors." 250 F.Supp. at p. 123.
In Bokulich v. Jury Commission of Greene County, 298 F. Supp. 181 (N.D.Ala., 1968), the court summarized the present position of the law as to these statutes, stating:
The appellees argue that the "Plan" provides for substantial compliance with the statutes in that names gotten from the voter registration lists would provide an adequate cross-section of the county. They cite United States v. Greenberg, 200 F. Supp. 382 (S.D.N.Y., 1961), in support of this theory. While it is correct that the court in that case held a grand jury was properly impanelled even though the names comprising the panel were drawn from lists of persons registered to vote, the case is not in point here. In Greenberg, supra, the court was discussing the selection of a federal jury and was concerned solely with the federal procedure. The court in that case said as follows:
The opinion in Greenberg quotes from Padgett v. Buxton-Smith Mercantile Co., 283 F.2d 597, 598 (10 Cir., 1960), cert., denied, 365 U.S. 828, 81 S. Ct. 713, 5 L. Ed. 2d 705, as follows: "Neither statutory nor case-made law requires the use of any particular source of names so long as there is no systematic exclusion of the members of any race, creed, social or economic group." [1] In the present case, we are to some extent dealing with a discretionary matter, but with a system of selection which the legislature has specifically provided and with which the jury commission must substantially comply.
*203 Unregistered voters would seem, in the absence of statistics to the contrary, to comprise a substantial segment of the population of any area. And such a system of jury selection which omitted them would not substantially comply with the statutes in Alabama, nor would such a procedure insure the jury commission as complete a list as possible. Mitchell v. Johnson, supra.
Further, the appellees' reliance on the Fikes decision, supra, that a venire need not be quashed on the ground that the name of every qualified juror is not on the jury roll is without merit. That decision is qualified by the caveat, "in the absence of fraud." Fraud used in this sense has been construed as encompassing more than criminal wiles: "Fraud is a relative term, it includes all acts and omissions which involve a breach of legal duty injurious to others." Inter-Ocean Cas. Co. v. Banks, supra. And it has been held that "When it affirmatively appears that the names of a large number of citizens who possess the qualifications required by law of jurors, are intentionally omitted from the jury roll * * * that is a fraud in law that requires the quashing of a venire * * *. It is not the kind of a jury box contemplated by law. Our Statutes do not contemplate * * * any system or scheme of selecting other than the selection of names authorized by law * * *." 32 Ala.App. at p. 227, 23 So.2d at p. 875, citing Doss v. State, 220 Ala. 30, 123 So. 231.
In view of the foregoing, we hold that the trial court erred in vacating the alternative writ of mandamus and in denying the peremptory writ of mandamus.
The judgment of the trial court is reversed and the cause is remanded with directions that a judgment be rendered and entered in accordance with the views expressed in this opinion.
Reversed and remanded with directions.
LIVINGSTON, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur.
[1] The selection of persons to serve on federal juries is now controlled by `"The Jury Selection and Service Act of 1968." 28 U.S.C., §§ 1861-1869. See excellent article by the Honorable Walter P. Gewin, United States Circuit Judge for the Fifth Circuit Court of Appeals, Mercer Law Review, Vols. 19-20, 1968-69. | September 3, 1970 |
56519954-101d-47aa-8a26-d55cab36f549 | Willowbrook Country Club, Inc. v. Ferrell | 239 So. 2d 298 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 298 (1970)
WILLOWBROOK COUNTRY CLUB, INC., etc., et al.
v.
George A. FERRELL, Jr., et al.
8 Div. 382.
Supreme Court of Alabama.
September 17, 1970.
*299 Watson & Fay, Huntsville, for appellants.
Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for appellees.
McCALL, Justice.
The appellees filed their bill of complaint in the Circuit Court of Madison County, Alabama, seeking a declaratory judgment in equity against the appellants and a temporary injunction in aid of their pending suit. The trial court granted the appellees a temporary injunction as prayed *300 for without ordering that the matter be set down for a hearing as provided for in Tit. 7, § 1054, Code of Ala., 1940. There was no error in this procedure, because on presentment for fiat, the granting of a temporary injunction without a hearing ordinarily rests within the sound discretion of the judge issuing the writ, and he is not required first to have a hearing on the application. Lukes v. Alabama Power Co., 257 Ala. 590, 592, 60 So. 2d 349.
The appellants filed pleas in abatement, a motion to dissolve, and a motion to discharge; and thereafter a demurrer, special pleas and an answer, all of which were incorporated in a single instrument which is sworn to.
The appellants' first two assignments of error contest the court's orders holding their pleas in abatement bad and ordering them overruled. In answer to this, it is enough to say that no provision is made in Tit. 7, § 757, Code of Ala., 1940, under which the appeal is taken, to question the adverse rulings on the pleas in abatement. In fact no appeal was taken from these rulings.
From the adverse ruling or interlocutory order of the court sustaining the injunction and overruling and denying the appellants' motions to dissolve and to discharge the writ, they have appealed as provided for in Tit. 7, § 757, Code of Ala., 1940.
Under assignments of error three and four, we consider the appellants' motion to dissolve the temporary injunction and the issues raised thereby. The court will consider first the allegations of the bill, whether well or poorly pleaded, which are admitted for the purpose of the hearing to test its equity. All defects as to the manner or form of pleading will be treated as having been amended, but not to the extent of adding facts not set forth. Martin's Grill Meats, Inc. v. Retail, Wholesale & Dept. Store Union Local No. 506, 283 Ala. 584, 219 So. 2d 634; Pennington v. Birmingham Baseball Club, Inc., 277 Ala. 336, 170 So. 2d 410; Persons v. Summers, 274 Ala. 673, 151 So. 2d 210. In this situation, whether or not the bill contains equity presents only a question of law. D. B. Clayton & Associates v. McNaughton, 279 Ala. 159, 182 So. 2d 890; Martin's Grill Meats, Inc. v. Retail, Wholesale & Dept. Store Union Local No. 506, supra.
If the averments of the bill are not sufficient to give it equity, then the injunction ought to be dissolved, because a bill without equity will not support an injunction of any character under any circumstances. Board of Water and Sewer Com'rs of City of Mobile v. Spriggs, 274 Ala. 155, 146 So. 2d 872, and cases cited; Wallace v. Malone, 279 Ala. 93, 182 So. 2d 360; Martin's Grill Meats, Inc. v. Retail, Wholesale & Dept. Store Union Local No. 506, supra.
In the stating part of the bill before us the appellees (complainants) aver in part that each of them purchased from the appellant, Willowbrook Country Club, Inc. (a respondent), for a substantial consideration a life membership in the Willowbrook Country Club which entitled the purchaser and his family to all of the benefits and privileges of membership in the club, that all life memberships were represented as being non-dues paying and non-assessable memberships, that the applications of the appellees for membership were accepted on this basis, and that the acceptances constitute contracts between each appellee and the appellant Willowbrook Country Club, Inc.
That the members of the Willowbrook Country Club have since voted to impose on the appellees and other life members monthly dues, and the appellants, Willowbrook Country Club, Inc. and Willowbrook Country Club Corp. are demanding that the appellees and other life members pay the dues voted on them by the members or else suffer suspension or expulsion from the club.
*301 That this action by the membership was illegal and constitutes a breach of appellees' contract with the appellant, Willowbrook Country Club, Inc., the terms, provisions, agreements and conditions of which appellees are entitled to have construed, and to have declared their legal responsibility thereunder to pay dues, assessments or minimum charges as life members.
That unless the appellants are restrained and enjoined, the appellees will either have to pay the dues or suffer ouster from the Willowbrook Country Club.
We think that the bill avers a substantial property right in the appellees which, if deprived of in contravention of their alleged contract with appellants, will result in irreparable loss or damage to the appellees, including the possible forfeiture of the cash sum they paid for the life membership. In our opinion these averments give the bill equity.
In Houston v. Howze, 162 Ala. 500, 50 So. 266, the complainant's bill sought to protect her in an office of a fraternal order to which was attached financial benefits in the form of life insurance, sick benefits, and exemption from dues. The term was for one year, but two months after taking office the Grand Master issued an order deposing complainant. In this situation the court held that the bill showed a property right which a court of equity will protect.
Having concluded that the averments of the bill give it equity, and that the temporary injunction was granted to maintain the status quo, we should not attempt to decide the real issue in the case between the parties. Irwin Fishing & Hunting Club v. Cobb, 235 Ala. 394, 179 So. 183. That is the province of the trial judge, but we should apply the law as laid down in Madison Limestone Company v. McDonald, 264 Ala. 295, 87 So. 2d 539, where it was held that when the bill contains equity, the trial judge exercises a wide discretion in granting a temporary injunction to preserve the status quo, pending a final hearing. He takes into consideration the relative advantages and disadvantages resulting from the granting or refusing to grant the injunction. Unless that discretion is abused, it will not be disturbed on appeal. Western Grain Co. Cases, 264 Ala. 145, 85 So. 2d 395; Madison Limestone Company v. McDonald, 264 Ala. 295, 87 So. 2d 539; Southern Rock Products Co. v. Self, 279 Ala. 488, 187 So. 2d 244; Thagard v. Brock, 282 Ala. 262, 210 So. 2d 821. We have carefully examined and studied the record made on the hearing of the motion to dissolve, and conclude that the temporary injunction, as hereinafter ordered modified, should remain in effect until the case is decided on its merits.
While, pending this suit, a temporary injunction is appropriate to maintain the status quo until a final adjudication of the rights of the parties can be made, East Gadsden Bank v. Bagwell, 273 Ala. 441, 143 So. 2d 438; Hamilton v. City of Anniston, 248 Ala. 396, 27 So. 2d 857; Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So. 2d 13; Irwin Fishing & Hunting Club v. Cobb, 235 Ala. 394, 179 So. 183; Coxe v. Huntsville Gas Light Co., 129 Ala. 496, 29 So. 867, we think the temporary injunction, granting auxiliary relief here, is too encompassing. It enjoins the collection of dues, assessments, or minimum charges, not only from the appellees, but also from all other life members, regardless of any willingness on their part, now or later, to pay these charges. Such voluntary payments and the collection thereof should not be enjoined.
No irreparable injury can come to the appellees, if other life members pay the controversial charges. Therefore, we are of the opinion that the temporary injunction should be modified so as to temporarily enjoin only the collection of dues, assessments or minimum charges from life members who express objection and are *302 unwilling to pay such charges, and from imposing on them penalties, because of their failure or refusal to pay such charges, and from interfering with their reasonable use of the club facilities because of such failure.
It is our further opinion that the suit was properly brought as a class action under the provisions of Equity Rule 31, Tit. 7, Appendix, Code of Ala., 1940; Nesbitt v. Hagan, 265 Ala. 213, 217, 90 So. 2d 217.
If there are among the life members some whom the appellees claim to represent as members of that class, but whose consent cannot be obtained, such persons may be made parties respondent under Tit. 7, § 128, Code of Ala., 1940. Or, they may intervene in the suit as parties respondents under Equity Rule 37.
The appellants' motion to discharge the injunction, the overruling of which is the basis for their assignments of error five and six, is grounded first on a defective verification of the bill. They point out that the verification is predicated only on knowledge, information and belief. Such a verification is insufficient, Board of Water and Sewer Com'rs of City of Mobile v. Spriggs, 274 Ala. 155, 146 So. 2d 872; Brooks v. Everett, 271 Ala. 380, 124 So. 2d 100, and the deficiency is ground for a motion to discharge or vacate the injunction. Woodward v. State, 173 Ala. 7, 55 So. 506. However the defective verification of the bill is a mere irregularity and the court will not discharge the injunction until the movant has first had an opportunity to supply a sufficient affidavit. Jacoby v. Goetter, 74 Ala. 427; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Woodward v. State, supra. The court erred though in not holding the affidavit insufficient with a conditional decree that the writ of injunction should be discharged upon failure of the complainant to perfect the affidavit within a fixed time. Lauderdale v. McAllister, 193 Ala. 175, 68 So. 984; Cochran v. State, 270 Ala. 440, 119 So. 2d 339; Greenwood v. State, 230 Ala. 405, 161 So. 498.
The only other grounds of the motion to discharge, which we have not already considered, relate to the alleged insufficiency of the injunction bond required by Tit. 7, § 1043, Code of Ala., 1940. Under this statute, the judge granting the temporary injunction is required to fix the amount of the bond, which he did in this case at $500. We do not find a clear showing of an abuse of discretion in fixing the amount of this bond, consequently we will not substitute our judgment for that of the trial judge. Raphael Per L'Arte, Inc. v. Lee, 275 Ala. 307, 154 So. 2d 663. Further such a motion is not well taken, without first affording a reasonable time for filing a new bond, if the original bond is found to be insufficient in amount. High on Injunctions, 4th Ed., Vol. II, § 1622, p. 1577.
The decree of the trial court overruling the appellants' motion to dissolve the writ of temporary injunction is affirmed in part with direction to enter an amended order modifying the writ of temporary injunction heretofore issued so as to conform to the judgment of this court; and, said decree is reversed in part with direction to enter a conditional order discharging the writ of temporary injunction, if the appellees shall fail to perfect the verification to the original bill of complaint within a reasonable time to be fixed by the trial court.
Affirmed in part, modified, and reversed in part, with directions.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and BLOODWORTH, JJ., concur. | September 17, 1970 |
e2e58f73-ab61-4a65-afa9-6720ffcfe523 | Stover v. Alabama Farm Bureau Ins. Co. | 467 So. 2d 251 | N/A | Alabama | Alabama Supreme Court | 467 So. 2d 251 (1985)
Richard STOVER
v.
ALABAMA FARM BUREAU INSURANCE CO.
83-1303.
Supreme Court of Alabama.
March 22, 1985.
*252 John L. Sims, Hartselle, for appellant.
Gordon T. Carter, Montgomery, Norman W. Harris, Decatur, for appellee.
TORBERT, Chief Justice.
Richard Stover, plaintiff, appeals from a summary judgment in favor of the defendant, Alabama Farm Bureau, in Stover's suit for breach of an employment contract. The issue on appeal as stated by Stover is:
Stover has narrowly framed the issue so that we need not consider whether on the merits summary judgment was appropriate. Our only inquiry is whether the trial court was precluded from granting summary judgment because of this Court's decision in a prior appeal by these parties. The answer to this question depends upon what issues were raised and addressed on the first appeal.
Stover sued Farm Bureau for breach of an employment contract. Farm Bureau moved for summary judgment on the ground that Stover's employment was based upon an employment-at-will contract and was therefore terminable at any time, with or without cause. The trial court granted summary judgment on the basis that, other than the services to be rendered by Stover, the evidence showed no other valuable consideration, such other valuable consideration being necessary in order to have an enforceable contract for permanent employment.
Stover appealed and this Court reversed, holding that there was some evidence of a valuable consideration given by Stover and, therefore, that summary judgment was inappropriate, Murphree v. Alabama Farm Bureau Ins. Co., 449 So. 2d 1218 (Ala.1984). Farm Bureau filed an application for rehearing and asserted that even if the trial court's stated reason for granting summary judgment was wrong, summary judgment was appropriate because (1) the agent of Farm Bureau who made the alleged contract was without authority to make a contract for permanent employment and (2) the evidence showed nothing more than an employment at will.[1] The application for rehearing was overruled.
Farm Bureau then made a second motion for summary judgment in the trial court, advancing the lack-of-agent authority theory and the employment-at-will theory as grounds. Summary judgment was again granted, but no reasons were stated.
Initially, Farm Bureau asserts that the judgment should be affirmed because Stover's brief on appeal does not comply with A.R.App.P. 28(a)(5), specifically, that the brief contains neither a citation of authority nor a reason why a ruling on one motion for summary judgment bars consideration *253 of a subsequent motion for summary judgment on a different ground. Stover did not file a reply brief in an attempt to comply with the rule, but did move to file a supplemental brief so that he could comply with the rule.
We overrule that motion because we are not going to affirm the judgment on that basis. However, we take this opportunity to again admonish against a practice this Court has seen with increasing regularity. See, Eady v. Stewart Dredging & Construction Co., 463 So. 2d 156 (Ala. 1985). Appellants who fail to comply with A.R.App.P. 28(a) place themselves in a perilous position. While we attempt to avoid dismissing appeals or affirming judgments on what may be seen as technicalities, we are sometimes unable to address the merits of an appellant's claim when the appellant fails to articulate that claim and presents no authorities in support of that claim. Under appropriate circumstances we will refuse to consider the appeal.
It is unclear whether, when the trial court first granted summary judgment, that court implicitly ruled against Farm Bureau on its employment-at-will theory. By granting summary judgment on the lack-of-consideration ground, the trial court could have implicitly concluded that the agreement was not for an employment at will but was otherwise unenforceable for lack of consideration or could have concluded that, assuming there was a contract for permanent employment, the agreement was unenforceable for lack of consideration.[2] However, we need not resolve this question, because it is clear that the trial court never addressed the issue of lack of authority of Farm Bureau's agent to bind the company. It is equally clear that while the lack-of-authority theory was discussed in Stover's original brief it was not expressly presented to this Court as a vehicle by which we could affirm the summary judgment until Farm Bureau filed its application for rehearing.
While it is true that this Court will sometimes affirm a summary judgment for reasons different from those stated by the trial court, Bank of Southeast v. Koslin, 380 So. 2d 826 (Ala.1980), there is nothing in our prior opinion that indicates we considered the lack-of-agent authority ground for granting summary judgment. The fact that Farm Bureau in its application for rehearing advanced that theory and that it was proper to affirm the summary judgment on that theory does not mean that we reached the merits of that argument. New supporting arguments presented for the first time on rehearing generally will not be considered. Putnam v. City of Huntsville, 48 Ala.App. 33, 261 So. 2d 754 (1972). Accord, Kirkland v. Kirkland, 281 Ala. 42, 198 So. 2d 771 (1967). In light of our failure to address the lack-of-agent authority issue in our prior opinion, we conclude that the trial court was not precluded from entertaining a motion for summary judgment on that theory.
AFFIRMED.
ALMON, SHORES and BEATTY, JJ., concur.
FAULKNER, J., concurs in the result.
[1] Farm Bureau's original brief did discuss the lack-of-agent-authority and employment-at-will theories but did not expressly argue that this Court could affirm the grant of summary judgment on either or both theories.
[2] This Court also did not expressly address the question of whether there was a contract of permanent employment or whether there was an employment at will contract. | March 22, 1985 |
cc6eeaae-6f48-404c-913a-0793bb2a7b94 | Shepherd v. Southern Railway Company | 256 So. 2d 883 | N/A | Alabama | Alabama Supreme Court | 256 So. 2d 883 (1970)
Barrett SHEPHERD
v.
SOUTHERN RAILWAY COMPANY, a Corp.
6 Div. 728.
Supreme Court of Alabama.
July 16, 1970.
Rehearing Denied September 10, 1970.
*885 Rives, Peterson, Pettus, Conway & Burge, W. Eugene Rutledge, Birmingham, for appellant.
Cabaniss, Johnston, Gardner & Clark, and Crawford S. McGivaren, Jr., Birmingham, for appellee.
HARWOOD, Justice.
In the suit below the plaintiff claimed damages of $100,000.00 for personal injuries sustained by him in the course of his employment by the defendant as a member of a switch engine crew. The complaint averred that his injuries resulted when the air hoses between two railroad cars became uncoupled, and one of them flailed about, striking him on the left jaw. His jaw was broken and a jaw tooth was knocked out, and he was caused to suffer great physical pain and mental anguish, and had to undergo hospitalization and medical and surgical treatment. The complaint further averred that plaintiff's injuries were the proximate result of a violation by the defendant of one of the Federal Safety Appliance Acts generally known as the "Air Brake Act" and that the defendant operated its railroad interstate.
The trial resulted in a verdict in favor of the plaintiff, his damages being assessed at $14,000.00.
The defendant duly filed a motion for a new trial and after a hearing thereon the court entered an order granting the motion. This appeal is from such order.
Since the plaintiff and defendant occupy the same relative position on this appeal as they did in the trial below, they will hereinafter be referred to as the plaintiff and defendant.
In the trial on the merits the plaintiff testified that he, in carrying out his employment, had coupled the air hoses between two cars. When he turned on the air valve the hoses came apart, and flailed about. The metal fitting on the end of one of the hoses struck him on the jaw, knocking out a tooth and breaking his jaw.
The plaintiff further testified that on this occasion he had carried out the procedure of coupling the air hoses as he had been instructed in the brakeman's school conducted by the defendant, and as he had previously done in thousands of instances.
He had seen air hoses burst, but these instances involved the rubber part of the hose. This was the first time he had seen an air hose become uncoupled. When coupled air hoses are supposed to remain coupled.
L. R. Willard, an employee of the defendant for some thirteen years, was yard foreman at Winston-Salem, North Carolina, and a member of the switching crew at the time of plaintiff's injuries.
Willard first saw the plaintiff as he came around the end of a car. He was holding his jaw and had a tooth in his hand. The plaintiff could not talk too well but tried to tell him he had been struck in the jaw with an air hose.
Willard and another crew member, Kenneth Roberts, went to the site where the plaintiff had been coupling the air hoses. They found the air hoses uncoupled. They observed nothing wrong with the hoses, and one or the other of them coupled the *886 hoses together, and they observed nothing defective in the couplings.
Willard testified that on two occasions he has seen air hoses become uncoupled when they were not supposed toit is not a common occurrence but it does occur.
Kenneth Roberts, also a member of the crew with which the plaintiff was working, gave testimony largely in accord with the testimony of the witness Willard.
Roberts did further testify that on one occasion he was riding on the "floor board" between an engine and a car when an air hose between the engine and the car "flew apart" and hit him on the leg"knocked me for a loop, really." Roberts had coupled the air hoses himself, and had coupled them properly.
R. M. Hutto, who had worked as brakeman and switchman for the defendant for over fifty-one years, until his retirement, testified that he had coupled thousands of air hoses during his employment. Mr. Hutto demonstrated to the jury the proper procedure for coupling air hoses.
He has had air hoses that he had coupled and turned air into in the manner demonstrated, come loose "lots and lots of times." Afterwards he would recouple the hoses and they would work all right.
Mr. Hutto further testified that the fifteen years ago he had been hit on the leg by an air hose becoming uncoupled, and that he carried a scar on his leg from this blow. He himself had coupled this hose and cut the air into it when it flew around and hit his leg. Afterwards he recoupled the air hose and it worked properly.
Mr. Hutto further testified that the incident happened "about fifteen years ago." At the request of plaintiff's counsel, he exhibited his leg to the jury.
On cross examination Hutto denied that he had testified against the defendant in several cases, or that his frequent visits to the office of plaintiff's counsel had necessarily been in connection with cases against the defendant.
Mr. Hutto further testified on cross examination that he had made a claim for the air hose injury, and had made about three claims for injuries while working for the defendant.
On re-direct examination Hutto testified he had made his claim for the air hose injury through the claim department of the defendant.
For the defendant, Walter Sebastian and R. A. Zimmerman, longtime employees of the defendant, testified they had examined the air hoses pointed out to them as being the ones that injured the plaintiff. Their inspection of the hoses revealed no defect. They coupled the air hose and kicked the hose to see if it would come uncoupled. It did not. No air was let into the hose during this examination.
James Whitler, General Yard Master for the defendant, and Thomas C. Mims, a claim agent, testified that they visited the plaintiff in the hospital. The plaintiff's jaws were wired together at this time.
When asked how the accident happened, the plaintiff stated he did not know. Mims testified that the only thing the plaintiff ever told him about the accident was that he was hit in the face with an air hose.
Clarence Frick, General Foreman in charge of the defendant's mechanical department, examined the air hose shortly after the plaintiff's injury. At this time the air hose had been coupled to an engine and air had been turned into the hose. His inspection revealed no defect in the air hose or the coupling. Mr. Frick testified in detail as to how the couplings of air hoses work, and stated that in his opinion, if properly coupled, an air hose could not come apart upon turning air into it.
At the hearing on the motion for a new trial the court heard arguments as to several grounds of the motion in the absence of a court reporter. Upon the commencement *887 of the hearing of the grounds pertaining to newly discovered evidence (grounds 33, 34, 36 and 37), a court reporter was called in and this portion of the hearing was taken down.
The defendant offered the affidavits of C. G. Crawford and Hon. Leigh M. Clark, attorney for the defendant. The attorney for the defendant then announced he had subpoenaed R. M. Hutto, "to make him available for the court" though he did not wish to place Hutto on the stand unless it was understood that he would be the court's witness.
Plaintiff's counsel made known he did not intend to put Hutto on the stand, but upon the court stating, "I want to know what he says about it," plaintiff's counsel stated he would place Hutto on the stand.
On direct examination Hutto testified that he had received the air hose injury about which he had testified in the trial, at Corona, Alabama, in the latter part of 1948, or the first part of 1950. He was off five days, and "I don't remember whether it was Mr. Cameron, O. K. Cameron, or Mr. Mauney, the superintendent, and he gave me a voucher for the days I was off."
On cross examination Hutto denied he had told Mr. Crawford, when Crawford had interviewed him after the trial, that he had settled his claim for the air hose injury with Mr. Walton of the defendant's employment department. Hutto admitted he had told Crawford that he had gone to Dr. Cunningham, a company doctor in Corona, for treatment of his air hose injury, but stated that this was wrong, he had gone to Dr. Harrison who was not a company doctor for the defendant. Hutto did not know where Dr. Harrison was now.
At the time of his air hose injury claims under $150.00 were handled by the superintendent, and not by the Claim Department, and he had never told Walton or anybody that the Claim Department had handled his air hose injury. (During the trial Hutto had testified he had settled his air hose injury claim through defendant's claim department.)
Counsel for defendant then showed Hutto a transcript of his testimony in the trial.
At this point counsel for plaintiff objected to further cross examination of Hutto on the ground that defendant's counsel was not submitting new evidence, but was attempting to retry the case. Here the record shows the following:
Thereafter counsel for both sides stated the motion for a new trial would be submitted on affidavits. It developed that counsel for the plaintiff had no counter-affidavits, and asked if he might prepare one, the court informed him he thought it was too late. Counsel for plaintiff then asked permission to confer with Hutto.
After this conference, counsel for the plaintiff announced that he had advised Hutto of the dangers involved if he was not telling the truthand that he would not be questioned further if he did not so desire. Hutto had stated to him he was "ready to go ahead and be cross-examined by Mr. Clark." The cross-examination of Hutto was resumed.
Hutto denied that he had ever hurt his leg after the air hose accident other than one time when he had skinned his shin, and he had then made no claim for the skinned shin. However, upon being shown documents from defendant's files pertaining to two claims, one for a bruised left knee and skinned shin, made in May 1951, and another made 4 July 1950, for both shins being skinned, his recollection was refreshed. As to the first injury, he stated he had made a claim therefor and had gotten paid through Mr. Mauney. Hutto claimed that his air hose accident was prior to both of these claims mentioned above.
The defendant's motion for a new trial contained some 37 grounds. The court did not specify on what ground or grounds the motion for a new trial was granted.
The plaintiff-appellant has made a single assignment of error asserting as error the action of the court in granting the motion for a new trial.
Where, as here, the court enters a general order granting a motion for a new trial without resting it on any specific ground, if any ground contains merit, including grounds that the verdict is contrary to the weight of the evidence, the judgment granting the motion for a new trial will be sustained. Cox v. Martin, 250 Ala. 401, 34 So. 2d 463.
Grounds 1-3, 5-7, 9, 14, 15, 19, and 20 are to the effect that the verdict is either contrary to the evidence, or to the great weight of the evidence, or is not sustained by the great weight, or preponderance, of the evidence.
As pointed out in Atlantic Coast Line R. Co. v. Dunivant, 265 Ala. 420, 91 So. 2d 670, with numerous citations of authority which we shall omit, cases of the type of the present one, where relief is claimed because of a violation of one of the Federal Safety Appliance Acts, such action is pursued or governed by the Federal Employers' Liability Act. The violation of the Safety Appliance Act being itself an actionable wrong, establishment of a plaintiff's right of recovery is in no wise dependent upon negligence.
It has been said that the Safety Appliance Acts are substantially, if not in form, amendments to the Federal Employers' Liability Act, and the two acts are to be read and applied together. International Great Nor. R. Co. v. United States, 5 Cir., 268 F.2d 409; Underwood v. Missouri-Kansas-Texas R. Co., 191 Kan. 338, 381 P.2d 510.
The duty of the carrier under the Safety Appliance Act is not based on the negligence of the carrier but is an absolute one requiring performance of the appliance on the occasion in question. Affolder v. *889 New York and St. L. R. R. Co., 339 U.S. 96, 70 S. Ct. 509, 94 L. Ed. 683. The fact that an appliance functioned properly on other occasions, both before and after the occasion in question is immaterial. The test is the performance of the appliance on the occasion in question. Carter v. Atlanta and St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S. Ct. 226, 94 L. Ed. 236; Texas and Pacific Ry. Co. v. Griffith, 5 Cir., 265 F.2d 489.
The acts of Congress and federal decisional law govern our deliberations in these cases. Atlantic Coast Line R. Co. v. Dunivant, supra.
The plaintiff testified he had properly coupled the air hose and upon turning the air into it, the hose separated, injuring him. Willard, Roberts, and Hutto testified they had seen properly coupled air hoses fly apart unexpectedly, though the hoses had worked properly before, and after, the incident. On the other hand, defendant's witnesses, Sebastian and Zimmerman, gave testimony to the effect that properly coupled air hoses could not become uncoupled. Their inspection of the hose in question revealed no defects in the hose. They did not, however, turn air into the hose in the course of their inspections.
This contradiction in the evidence presented a question of fact within the province of the jury to resolve. If the jury believed the evidence of plaintiff and his witnesses, such evidence was sufficient to justify the verdict rendered. Smith v. Smith, 254 Ala. 404, 48 So. 2d 546; Suits v. Glover, 260 Ala. 449, 71 So. 2d 49; Griffin v. Respress, 281 Ala. 168, 200 So. 2d 469.
Further, this being a Federal Employers' Liability Act case, judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part, even the slightest, in producing the injury or death. Rogers v. Missouri Pacific R. R. Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493.
It would appear that no new trial should have been granted because of those grounds going to the sufficiency of the evidence.
Grounds 21 and 22 of the motion for a new trial are based upon the court's refusal of defendant's written requested charges numbers 1 and 2. Each of these charges are affirmative in nature. Under the plaintiff's evidence these charges were properly refused.
As set forth in Southern Ry. Co. v. Reeder, 281 Ala. 458, 204 So.2d 808:
Grounds 23-28 are to the effect that the court erred in the refusal of certain special written charges requested by the defendant, that is, charges 3-8 respectively. A reading of the court's oral instructions discloses that the principles sought to be enunciated in these charges were amply covered therein.
Grounds 1-13, 16, 17, and 18 raise the point that the damages awarded are so excessive as to denote bias, prejudice, or passion on the part of the jury.
As before stated, the jury awarded damages of $14,000. Plaintiff's lost wages amounted to $3,150. This leaves $10,850 as *890 damages for physical injury, pain, and suffering, and mental anguish.
The evidence shows that in the accident the plaintiff received a compound, comminuted fracture of his lower left jaw bone, with a fracture of a molar tooth. On 4 April 1967, the plaintiff was operated on under anesthesia. The fractured pieces of bone were set and fastened with wires. The retained root tips of the fractured molar tooth were removed. Two other tooth roots were removed. Following post operative nausea the set bone was stabilized by wiring the upper and lower jaws together. A second operation, similar to the first procedure was done on 15 April 1967, because fragments of the bone had become dislocated. There was considerable swelling with both surgical procedures. There were nutritional difficulties in that plaintiff had to get all nourishment by liquids through a straw.
The doctor who treated the plaintiff testified that the post operative results were good and there should be no limitation of the functioning of the jaw other than the loss of teeth. A re-operation may possibly be required, however, to remove the fracture wire in the jaw. Pain accompanies the type of injury received by the plaintiff.
The plaintiff testified that in addition to the pain accompanying the fracture, he suffered from headaches, and during his treatment he lost some 35 pounds. The plaintiff was hospitalized altogether 14 days, and was unable to return to work for some four months due to weakness from lack of nourishment.
There is no fixed standard for the ascertainment of compensatory damages recoverable for physical pain and mental suffering. The amount of such award must necessarily be left to the sound discretion of the jury, subject only to correction by the court for clear abuse or biased exercise of that discretion. Vest v. Gay, 275 Ala. 286, 154 So. 2d 297; Durham v. Sims, 279 Ala. 516, 187 So. 2d 558.
In view of the severity of plaintiff's injuries, and the undoubted pain and mental anguish accompanying the injury and treatment therefor, we do not consider that it could be concluded with any degree of certitude that the damages awarded were excessive, or resulted from bias, prejudice or passion. See Airheart v. Green, 267 Ala. 689, 104 So. 2d 687, par. 8 at page 693. Grounds 10-13, 16, 17, and 18 of the motion would furnish no adequate basis for granting the motion for a new trial.
Grounds 29-32 assert error because of alleged prejudicial remarks by plaintiff's counsel during his closing argument to the jury.
In this connection, the record shows the following:
From the evidence taken on the motion for a new trial, and argument in briefs, it appears that the evidence in the trial was taken consecutively by two court reporters, one of whom was Tribble. The other reporter had written up the transcript of Mims' testimony.
It appears that Tribble's wife was on the jury trying the case.
Counsel for defendant contends that the inaccurate statement that Tribble had typed *891 up Mims' testimony was calculated to import a special degree of accuracy of the transcript in the mind of Mrs. Tribble and also implied to her that her husband had received financial benefit from the plaintiff for typing up the transcript.
There is no intimation in the record that the transcript of Mims' testimony prepared by the second reporter was inaccurate. After the interjection of Mr. Clark's observations as to the impropriety of plaintiff counsel's stating who had typed the transcript, counsel for plaintiff changed his statement to the effect that he had asked the reporter to type up the transcript of Mims' testimony, and asked forgiveness, apparently for misstating that Tribble had typed the transcript. This seemed to satisfy defendant's counsel as he replied, "Yes." Considerable conjecture would have to be indulged to conclude that Mrs. Tribble did not grasp that her husband had not been the reporter who typed up the transcript, and had not received any financial benefit from plaintiff's counsel.
But above all, no actual objection was interposed to the argument. The court's ruling was not invoked. Counsel for defendant seemed satisfied with plaintiff counsel's apology for misnaming Tribble as the reporter. Such misstatement of the name of the reporter certainly cannot be considered so poisonous as to demand a setting aside of the verdict in the ends of justice. The entire matter appears to be another of those incidents frequently arising in trials which upon consideration presents little of real consequence.
The motion for a new trial could not properly have been granted on grounds 29-32.
Lastly, we come to a consideration of grounds 33-37 of the motion for a new trial pertaining to the discovery of new evidence subsequent to the trial.
The rules governing the granting of a motion for a new trial on the ground of newly discovered evidence, have received the consideration of this court in a number of cases and are now well crystalized. Particularly have the essential bases for action by a trial court in such proceedings been discussed in Fries v. Acme White Lead and Color Works, 201 Ala. 613, 79 So. 45, and Forest Investment Corp. v. Commercial Credit Corp., 271 Ala. 8, 122 So. 2d 131. In the latter case it is stated:
We deduce from our reading of the record that it was the court's doubt as to Hutto's veracity, as evidenced by the court's statement dictated into the record, that probably formed the real basis for the court's action in granting the motion for a new trial.
Hutto yet maintained in his examination on the hearing of the motion for a new trial that he had received the air hose injury as he had testified in the trial. He admitted he had not filed a claim with defendant's claim department as he had previously testified, but changed his testimony in this regard to the effect that he had filed his claim with defendant's superintendent, it being customary at that time *892 to handle claims of under $150.00 with the superintendent.
The effect of the defendant's documentary evidence was to show that Hutto had never filed a claim for an air hose injury, but had filed claims for injuries in July 1950, and May 1951, for injuries which included a skinned shin in each instance. These injuries in no wise involved an injury from an air hose.
In 39 Am.Jur., New Trial, Sec. 1169, we find the rule as to granting a new trial because of perjury of a witness set forth as follows:
We think the testimony of the plaintiff, and of his witnesses Willard and Roberts must be deemed sufficient to sustain the verdict even if Hutto's testimony be laid aside. Hutto's testimony as to having observed properly coupled air hoses come apart when air was turned into them was merely corroborative of Willard's and Roberts' testimony.
Under these circumstances we do not think it can be said with assurance to the degree required that the evidence presented on the motion for a new trial questioning Hutto's testimony would constitute such a probability of a changed result as to justify the granting of a motion for a new trial.
Thus the first required element for granting a motion for a new trial as set forth in Forest Investment Corp. v. Commercial Credit Corp., supra, is lacking.
We also think the fifth essential element set out in the same case is lacking, i. e., the newly discovered evidence must not be merely cumulative or impeaching.
"Impeaching testimony" is that designed to discredit a witness, or to reduce the effectiveness of his testimony by bringing forth evidence to show why faith should not be accorded his testimony. Blankenship v. Freeman (Okl.), 440 P.2d 744. Evidence is "impeaching" so as to bar a new trial if it is outside the evidence already given and impeaches that evidence by attacking the character, motives, integrity, or veracity of the witness who gave the testimony. Johnston v. Belk-McKnight Co., etc., 188 S.C. 149, 198 S.E. 395.
We think it clear that the evidence presented by the defendant on the motion for a new trial relative to the integrity or veracity of Hutto's testimony must be characterized as impeaching testimony.
The underlying reason denying the use of impeaching testimony as a basis for setting aside a verdict or judgment is that such testimony may be discovered in almost every case, and there should be a finality to litigation. See Fries v. Acme White Lead & Color Co., supra.
The well established general rule is that the granting or refusing of a motion for a new trial is a matter resting largely in the discretion of the trial court, and the exercise of this discretion carries with it a presumption of correctness, with the accompanying corollary that the ruling of a trial court on a motion for a new trial will not be disturbed unless plainly and palpably erroneous.
Nevertheless such rule cannot logically be applied where a motion for a new trial may have been granted because of newly *893 discovered evidence if essential conditions precedent for the invocation of the court's action on such grounds is lacking. The evidence shown by the defendant on the motion for a new trial relative to Hutto's testimony being impeaching only, the motion for a new trial, if granted on the ground of newly discovered evidence, was therefore erroneously granted.
It is our conclusion therefore that none of the grounds of the motion for a new trial warranted the granting of the motion. The judgment granting the motion is therefore due to be reversed with the resulting effect that this cause is thereby restored to the posture of a verdict for the plaintiff, and in this posture is remanded to the court below for entry of an appropriate judgment consonant with the verdict.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, MADDOX and McCALL, JJ., concur. | July 16, 1970 |
acb20337-0f4d-4baf-9d89-b279a0341e42 | Ex Parte Newbern | 239 So. 2d 792 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 792 (1970)
Ex parte John W. NEWBERN, d/b/a Nationwide Advertising Specialty Co., Etc.
In re: STATE of Alabama
v.
John W. NEWBERN, d/b/a Nationwide Advertising Specialty Co., etc.
3 Div. 452.
Supreme Court of Alabama.
July 10, 1970.
*793 M. R. Nachman, Jr., Montgomery, for petitioner.
MacDonald Gallion, Atty. Gen., Willard W. Livingston and B. Frank Loeb, Asst. Attys. Gen., for respondent.
*794 BLOODWORTH, Justice.
We granted a writ of certiorari to the Court of Civil Appeals, 239 So. 2d 780, to review its decision reversing and rendering three decrees of the Circuit Court of Montgomery County, in equity, which decrees set aside final assessments made by the State Department of Revenue against petitioner for Alabama use taxes covering periods totalling six years.
Nationwide petitioned for writ of certiorari following the overruling of its motion for rehearing by the Court of Civil Appeals. We granted the writ because the case involved construction of controlling provisions of the Federal Constitution and presented a question of possible conflict with prior decisions of this court on the same point of law. See Act No. 987, § 32, Acts 1969, appvd. Sept. 12, 1969. The case was orally argued May 12, 1970.
The issues presented are three: I. Whether the Court of Civil Appeals erroneously rejected the trial court's findings of fact in this case heard ore tenus; II. whether petitioner is, in the language of Title 51, § 792, Code of Alabama 1940, as last amended, a "seller engaged in making retail sales of tangible personal property for * * * use * * * in this state, who: * * * (c) solicits and receives purchases or orders by agent or salesman * * *" and thus liable to collect and remit the use tax to the State; III. whether making petitioner a use tax collector under the circumstances of this case violates the Due Process and Commerce Clauses of the United States Constitution. We affirm the decision of the Court of Civil Appeals, having concluded that the answers to I and III are in the negative, and to II in the affirmative.
The facts upon which we base our review of this case, coming here on writ of certiorari, are those contained in the opinion of the Court of Civil Appeals. Clayton v. Ragsdale, 276 Ala. 321, 161 So. 2d 804 (1964). Notwithstanding these facts are set out quite extensively in the Court of Civil Appeals' opinion, we think a short summary is appropriate here.
Petitioner Nationwide Specialty Company has been successively a sole proprietorship and a corporation with Texas as its place of business and state of incorporation. It is a jobber in the field of advertising specialties (items such as golf tees, key chains, shoe spoons, and pen and pencil sets) upon which advertising copy can be printed. Upon receiving and accepting in Texas an order for specialties, Nationwide issues a purchase order to a manufacturer, instructing the manufacturer to ship the goods directly to the buyer, at which time Nationwide is billed by the manufacturer. The order forms received by Nationwide state that the goods are purchased from Nationwide.
Nationwide's sole[1] contacts with Alabama were as follows:
Over 100 salesmen[2] in Alabama, to whom Nationwide furnished free samples, catalogs, order blanks, and other sales literature, solicited orders from Alabama customers and sent them to Nationwide. Generally, the buyers made payment directly to Nationwide, and the salesmen received a weekly commission check. Occasionally, the salesmen were *795 asked to collect a tardy payment; and occasionally, they withdrew their commissions directly from customers' payments before sending the balance to Nationwide. The Alabama salesmen who testified said that they had become solicitors for Nationwide as a result of answering its advertisement for "salesmen" placed in a trade publication. Nationwide frequently referred to them as "salesmen" in its weekly newspaper "The Nationwide Pavement Pounder" sent exclusively to their salesmen. These salesmen solicited orders for companies other than Nationwide. The number soliciting in Alabama for Nationwide during the years at issue ranged from 80 to 119; of these, the number who earned in a year more than $600 in commissions varied from 5 to 10. At least one earned as much as $2,000 based on sales of $8,000.[3]
I. Nationwide first contends that the Court of Civil Appeals failed to follow our rule that when evidence is heard ore tenus by the trial court without a jury, its findings of fact will not be disturbed on appeal unless plainly erroneous or manifestly wrong.
In Department of Industrial Relations v. Walker, 268 Ala. 507, 510, 109 So. 2d 135 (1959), we said that on review by certiorari we would not "examine the record and determine whether the Court of Appeals failed to give proper consideration to the rule of review that a trial court's findings from evidence taken orally before it is `to be given the effect of a jury verdict and is not to be disturbed when there is evidence to support it.' It must be remembered that the Court of Appeals is a court of final appellate jurisdiction in this state and its decisions are reviewable by us only by certiorari. Our review is confined to the opinion, although at times we examine the record for a better understanding of the court's holding." The Court of Civil Appeals having stated the facts in its opinion, we will not look behind those facts to determine whether it erred in concluding that the trial court was plainly and palpably wrong in its findings of fact. Life & Casualty Ins. Co. of Tennessee v. Womack, 228 Ala. 70, 151 So. 880 (1933).
In addition, we note that the trial court's "findings of fact" which Nationwide contends were erroneously rejected by the Court of Civil Appeals, viz., that Nationwide lacks sufficient nexus with Alabama to be compelled to collect the Alabama use tax and that there was no "agent or salesman" of Nationwide who solicited and received purchases or orders, are actually mixed questions of law and fact. Although the Court of Civil Appeals stated that it found the trial court's findings of fact "plainly and palpably wrong," we think it might well have answered petitioner's contention by saying that it differed with the trial court not on the facts but on the application of settled legal principles to such facts.
Mr. Justice DeGraffenried's observation in Ex parte Shoaf, 186 Ala. 394, 64 So. 615 (1914), seems pertinent in this connection:
II. Next, Nationwide argues that it is not a "seller engaged in making retail sales of tangible personal property for * * * use * * * in this state, who: * * * solicits and receives purchases or orders by agent or salesman" within the meaning of Title 51, § 792, supra; and that it therefore cannot be compelled to collect the use tax. Petitioner contends that its "dealers" are not "agents or salesmen" apparently on the theory that the statute requires that some "legal relationship" exist between "seller" and "agents or salesmen." That these salesmen or dealers spend only part of their working time soliciting for Nationwide and that they also solicit for companies other than Nationwide suggests to petitioner that they are self-employed and that there is no "legal relationship" between them and Nationwide.
We do not think the statute requires a "legal relationship" between seller and solicitor. The main thrust of Title 51, § 792(c), supra, seems to us simply to require solicitation of orders for the seller by persons within the state who are characterized as "agents or salesmen." We do not think that the legislature intended a seller conducting such solicitation to avoid collecting the use tax merely by showing that its salesmen failed to come within some technical definition of "salesman" or lacked some legal relationship with the out-of-state seller not articulated in the statute.
The Florida Supreme Court in Scripto, Inc. v. Carson, 105 So. 2d 775 (1958), affirmed 362 U.S. 207, 80 S. Ct. 619, 4 L. Ed. 2d 660, when that case was before it, answered a similar contention in this manner:
We think here that petitioner's salesmen were just as much its representatives under our statute as if they were salaried employee salesmen.
Nationwide appears to suggest that State v. Lane Bryant, Inc., 277 Ala. 385, 171 So. 2d 91 (1965); State v. West Point Wholesale Grocery Company, 284 Ala. 149, 223 So. 2d 269 (1969); and Family Discount Stamp Co. of Ga., etc. v. State, 274 Ala. 322, 148 So. 2d 218 (1963), place an added requirement in Title 51, § 792, that the out-of-state seller must have a sufficient nexus with Alabama. Though those cases do hold that a "nexus" is required under the United States Constitution, they do not say that a "nexus" requirement must be read literally into every Alabama taxing statute. The question whether Nationwide comes within the purview of the statute and the question whether the statute, as applied to Nationwide, is constitutional are separate questions. To the extent that the cases cited above are germane to the constitutional issues involved herein, they will be discussed below. We conclude that Nationwide comes within the intendment of Title 51, § 792(c), Code of Alabama, 1940, supra.
III. Nationwide insists that making it collect a use tax violates the Due Process and Commerce Clauses of the *797 United States Constitution. By the time of National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753, 87 S. Ct. 1389, 18 L. Ed. 505 (1967), the Supreme Court of the United States in a case involving the levy of a use tax could say:
Nationwide argues that its nexus with Alabama is constitutionally insufficient. We believe Scripto, Inc. v. Carson, supra, establishes the contrary and that this case is controlled by Scripto. That case held constitutional an attempt by Florida to compel the seller Scripto, a Georgia corporation, to collect a Florida use tax on goods sold to Florida residents. The facts therein are so nearly identical to the case at bar that we shall set out only those facts which Nationwide insists amount to material distinctions. Scripto's brokers operated under written contracts with Scripto and in specific areas of Florida assigned to them by Scripto. Unlike Nationwide, Scripto manufactured the goods it sold. Scripto's brokers never handled cash although they occasionally accepted checks payable to Scripto which they forwarded to it with the order. Nationwide's salesmen, on the other hand, had no written contracts nor specific areas assigned and frequently forwarded checks payable to Nationwide and occasionally forwarded customers' deposits to it. Neither did Nationwide manufacture any of the goods it sold.
These minor factual differences take on importance for Nationwide under its view that the "gist of Scripto is that an *798 employer cannot turn an agent into an independent contractor by the use of a label in a contract." Petitioner apparently assumes that the court in Scripto based its finding of a sufficient nexus on an agency relationship between Scripto and its brokers. We do not so read Scripto. Scripto had argued that the designation in the written contract of its solicitors as "independent contractor(s)" prevented the activities of these solicitors from being imputed to Scripto and thus precluded the finding of a sufficient nexus between Scripto and Florida. To this the U. S. Supreme Court responded:
The Supreme Court then did not place any special emphasis on whether the solicitors were labeled agents or independent contractors; it neither denied Scripto's solicitors were independent contractors nor affirmed that they were agents. We do not see that the court was required to employ common law labels in articulating constitutional standards in this area. That the solicitors'" local function of solicitation" and "effectiveness in securing a substantial flow of goods into Florida" were enough to establish a constitutionally sufficient nexus irrespective of their designation seems clearly to be the court's holding.[6] The same factors are present in the case at bar.
Nationwide seeks to distinguish Scripto on the existence in that case of written contracts and assigned territories, arguing that these are indicative of a closer nexus than is present in the case at bar. To the extent that this argument is an attempt to show the presence of an agency relationship between seller and solicitor in Scripto and the absence thereof in the case at bar, it has, we think, already been answered. As for Nationwide's salesmen, we think that neither the absence of written contracts, nor the absence of assigned territories, nor the occasional handling of cash payments (in the words of Scripto) "results in changing his [their] local function of solicitation nor bears upon its [their] effectiveness in securing a substantial flow of goods into Florida [Alabama]."
We do not mean to say that the intimacy of the relationship between the out-of-state seller and persons whose activity within Alabama is sought to be imputed to him is entirely irrelevant; on the contrary, it may have some bearing on the sufficiency of the nexus. We merely say, as Scripto says, that the out-of-state seller Nationwide's relationship with Alabama is close enough, constitutionally for use tax purposes, when it receives orders, resulting in a substantial flow of goods, from Alabama customers solicited for it by its salesmen operating within Alabama.
Nationwide relies upon Miller Brothers Co. v. Maryland, 347 U.S. 340, 74 S. Ct. 535. In that case, Maryland's attempt to require an out-of-state seller to collect a use tax levied on goods sold to Maryland residents at seller's store in Delaware was held unconstitutional because seller's connections with Maryland were insufficient. In National Bellas Hess, supra, the court observed:
Nationwide cites State v. West Point Wholesale Grocery Co., supra, as compelling the conclusion that it lacks a constitutionally sufficient nexus with Alabama. There we held an out-of-state vendor not liable for a franchise tax, a permit fee, and an admissions tax despite the presence of salesmen in Alabama and the vendor's delivery of goods in Alabama in its own trucks. We held that the law of the use tax cases was not controlling in cases involving other species of taxes; we think the converse is also true. The distinctions we drew there between Scripto and West Point apply equally between West Point and the case at bar:
Furthermore, when we pointed out in West Point that the tax involved in McGoldrick v. Berwind-White Coal Mining Company, 309 U.S. 33, 60 S. Ct. 388, 84 L. Ed. 565 (1940), was akin to a use tax this was sufficient to render that decision inapposite in the West Point case. We adhere to these distinctions. Particularly in view of the close factual congruity between Scripto and the case at bar, we think it unnecessary for us to decide whether Alabama must have as close a connection with an out-of-state vendor to require him to collect a tax as it must have to require him to pay a tax.[7] What we have said about West Point also disposes of Family Discount Stamp Co. of Ga., etc. v. State, supra, a case involving a license tax.
Nationwide also contends that State v. Lane Bryant, Inc., supra, and National Bellas Hess v. Department of Revenue, supra, compel the conclusion that it had an insufficient nexus with Alabama to be required *800 to collect its use tax. Both these cases held that out-of-state vendors cannot constitutionally be required to collect a use tax where their only connections with the taxing state were the sending of catalogs through the mails to its residents, the receipt of orders from them through the mail, and the sending of goods and acceptance of payment by mail. National Bellas Hess also made deliveries by common carrier. We think that neither of these cases is controlling. National Bellas Hess drew a "sharp distinction * * * between mail order sellers with retail outlets, solicitors, or property within a State, and those who do no more than communicate with customers in the State by mail or common carrier * * *" [Emphasis supplied]. We must adhere to that distinction. Just as the Supreme Court felt no need in National Bellas Hess either to follow or overrule Scripto, so we see no need to follow or overrule State v. Lane Bryant, Inc., here, considering it to be factually inapposite.
Only State v. MacFadden-Bartell Corporation, 280 Ala. 386, 194 So. 2d 543 (1967), remains to be considered. The facts in that case are lengthy and sufficiently appear in the opinion of the Court of Civil Appeals in the case at bar. We think the distinctions which we drew in MacFadden-Bartell between that case and Scripto demonstrate, without the need for additional discussion, that we consider MacFadden-Bartell to be inapt.
In two State Supreme Court cases of recent origin which we have found dealing directly with this question, both have held constitutional the efforts of the State to make a use tax collector out of an unqualified foreign corporation. Scripto, Inc. v. Carson, (Fla.) 105 So. 2d 775 (1958), affirmed 362 U.S. 207, 80 S. Ct. 619, and Topps Garment Manufacturing Corporation v. State, 212 Md. 23, 128 A.2d 595 (1957). We have already indicated that we believe that the facts of the instant case are on "all fours" in all material aspects with those of Scripto. Likewise, the facts of Topps appear to us to be materially the same.
In Topps, by stipulation, the facts were:
Topps attacked the Maryland statute (under which the assessments were made against it as a use tax collector, the provisions of which are essentially the same as ours) as affronting both the Commerce and Due Process Clauses. After a comprehensive summary of the decisions of the United States Supreme Court on this subject, and under an almost identical factual situation as both the instant case and Scripto, the Maryland Court concluded that the unqualified foreign corporation was liable to collect the Maryland use tax.
To the argument that the solicitors or salesmen were not agents or servants but were independent contractors, the Maryland Court of Appeals (its highest appellate court) responded that this made no difference and added inter alia:
The view has been advanced that to make a use tax collector out of Nationwide is to hold that the "State has the power to make a tax collector of one whom it has no power to tax." And, that such a division is an "unwarranted extension of the power of a state to subject persons to its taxing power who are not within its jurisdiction and have not in any manner submitted themselves to it." Such views were expressed by Mr. Justice Jackson in General Trading Co. v. Tax Comm'n, 322 U.S. 335, 339, 64 S. Ct. 1028, 1030, 88 L. Ed. 1309 (1944), in his dissent.
But, even Mr. Justice Jackson modified his position in General Trading Co., supra, for in Miller Bros., supra, in which case he authored the opinion for the court, he took occasion to restate his later views in this fashion:
We have already indicated that we adhere to the principles enunciated in Scripto, supra (as well as General Trading Co., supra, upon which Scripto is based). We consider these cases, and Topps, to be controlling. We conclude that no reversible error appears in the Court of Civil Appeals' opinion and that its decision is due to be affirmed.
*802 One further matter, however, remains to be disposed of. Petitioner observes in brief, "The Court of Civil Appeals in its decision of January 5, 1970 as extended on January 20, 1970, reversed and rendered the trial court's decrees * * * [notwithstanding] the amount of taxes due * * * has never been determined by the trial court * * *." [Emphasis supplied] We agree. And, in view of this posture of the case we are of the opinion, and hold, that the Court of Civil Appeals should have reversed and remanded these three cases to the Circuit Court solely for the purpose of determining and fixing the amount of taxes due. Therefore, although we affirm its reversal of the decrees of the Circuit Court, we remand these cases to the Court of Civil Appeals with directions to reverse and remand them to the Circuit Court for further proceedings not inconsistent with this decision.
We would be remiss in our duties if we did not acknowledge our indebtedness to counsel for their very thorough and well written briefs.
Affirmed in part and remanded with directions.
LIVINGSTON, C.J., and LAWSON, SIMPSON, MERRILL, HARWOOD, MADDOX, and McCALL, JJ., concur.
COLEMAN, J., concurs in result.
[1] The opinion of the Court of Civil Appeals nowhere explicitly states that Nationwide had no place of business in Alabama, but this is inferrable from the fact that the assessments were made under subsection (c) of Title 51, § 792, rather than subsection (a) and the fact that Nationwide kept no merchandise in Alabama. Petitioner in brief says the State relies only on subsection (c) and concedes subsections (a), (b) and (d) are inapplicable.
[2] Whether these individuals are called salesmen, drummers, dealers, solicitors, representatives or brokers, we deem to be immaterial as the opinion will subsequently reflect. We shall call them salesmen for convenience.
[3] Whether these figures alone reflect a substantial flow of goods into Alabama we need not determine since such a substantial flow is further "evidenced by the amount assessed against appellant [petitioner] on the statute's 3% basis over a period of but four [six] years." Scripto, Inc. v. Carson, 362 U.S. 207, 80 S. Ct. 619, 4 L. Ed. 2d 660. (The import of this factor will hereinafter appear in this opinion.) Based on the assessments, it would appear petitioner averaged doing approximately $50,000 worth of business annually in Alabama, or a total of $300,000 for the six years.
[4] In Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S. Ct. 246, 85 L. Ed. 267 (1940), the source of the quoted test, the quid pro quo was said to be the "protection, opportunities and benefits given by the state."
[5] The United States Supreme Court appropriately observes in a note at this point:
"Strictly speaking, there is no question of the connection or link between the State and `the person * * * it seeks to tax.' For that person in Miller Bros. Co. v. Maryland, 347 U.S. 340, 74 S. Ct. 535, 98 L. Ed. 744, in Scripto, Inc. v. Carson, 362 U.S. 207, 80 S. Ct. 619, 4 L. Ed. 2d 660, and in the present case [National Bellas Hess] is the user of the goods to whom the out-of-state retailer sells. National is not the person being directly taxed, but rather it is asked to collect the tax from the user. It is, however, made directly liable for the payment of the tax whether collected or not. * *"
[6] The U. S. Supreme Court said, "The test is simply the nature and extent of the activities of the appellant in Florida." [Emphasis supplied]
[7] In Scripto, Inc. v. Carson, 105 So. 2d 775, the Supreme Court of Florida apparently answered this question in the negative, saying:
"We do not lose sight of the organic essential that in the imposition of a tax the lawmaking body is bound to respect jurisdictional limitations in the same fashion that a court must obtain jurisdiction in order to adjudicate the rights of litigants. However, for purposes of enforcing collection of a use tax we are not persuaded by the view that the dealer involved must necessarily be subject to the jurisdiction of the taxing forum to the extent that he would be amenable to suit in that situs. We have the view that even though a dealer is not represented in the taxing state to the extent that service of judicial process on his representative would necessarily bind him to respond in a matter in litigation; nonetheless, he can still be represented by solicitors and limited agents who contact Florida residents to the extent that jurisdictional contacts would thereby be established sufficient to support the enforced collection of the Florida use tax."
The same view seems implicit in the United States Supreme Court's Scripto opinion:
"* * * The burden of the tax is placed on the ultimate purchaser in Florida and it is he who enjoys the use of the property, regardless of its source. We note that the appellant is charged with no tax save, when, as here, he fails or refuses to collect it from the Florida customer. * * *" | July 10, 1970 |
23bc853d-d42d-4427-936d-7aa3766d7476 | Bukacek v. Pell City Farms, Inc. | 237 So. 2d 851 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 851 (1970)
James BUKACEK
v.
PELL CITY FARMS, INC., et al.
7 Div. 858.
Supreme Court of Alabama.
July 2, 1970.
Rehearing Denied August 13, 1970.
Nicholson, Forstman & Howard, Birmingham, for appellant.
A. Dozier Williams, Birmingham, for appellees.
MADDOX, Justice.
This is an appeal by complainant from a final decree granting the relief prayed for by the respondents in their cross-bill.
Complainant (appellant) James Bukacek filed a statutory bill to quiet title (Title 7, *852 § 1109 et seq., Code of Alabama, 1940) against the respondents (appellees) Pell City Farms, Inc., a corporation, and Fitzhugh A. Burttram, Clarence B. Kelly and Ray Wyatt. Appellant, in his amended bill, tracked our statute and alleged that he was in peaceable possession of the land, that he owned the land and that the respondents claimed, or were reputed to claim, some right, title or interest in, or lien or incumbrance on the land.
Complainant called upon the respondents to set forth and specify their title, claim, interest in, or incumbrance on the land and by what instrument the same was derived and created.
Respondents asked for and received a temporary injunction prohibiting Bukacek from committing waste and from going onto the property and then filed an answer and cross-bill alleging that Pell City Farms, Inc., was the owner of the lands described in the complaint in fee simple, free and clear of all liens except certain mortgages held by two mortgagees. Respondents specifically denied that Bukacek was in "peaceable possession." The respondents also asked that the corporation be declared the owner of the lands in question and prayed that the temporary injunction against Bukacek be made permanent.
Respondents later made a motion to strike Bukacek's jury demand, claiming that the cross-bill raised issues and independent equities which were not triable by a jury as a matter of right, the respondents arguing that the provisions of Title 7, § 1112 of the Code would not apply. The court granted the motion, struck the jury demand, and tried the case without a jury.
Upon final submission the trial court dismissed Bukacek's complaint, as amended, and decreed that "The title to said property as described in the Cross-Bill of Respondents be and is vested in the Respondents and all title, right or claim of complainant be and is divested out of him."
Bukacek says the trial court erred in granting the relief prayed for by the respondents and in striking his demand for a jury trial. He also complains of the trial court's action in the admission of certain evidence.
The essential facts are not seriously disputed. The land involved is approximately 480 acres in two tractsone 300-acre tract owned by James Bukacek and one 180-acre tract owned by Virginia Bukacek, ex-wife of James Bukacek, both located in St. Clair County. In 1964, Bukacek had difficulties with his health, forcing him in 1965 to sell the dairy business he was operating. He also was having domestic problems which culminated in a divorce.
Matters got progressively worse for Bukacek, and in the latter part of 1966 and in 1967, he was having serious financial problems. The sheriff was advertising his farm for sale to pay three judgments and costs of court. The State of Alabama held a tax claim of approximately $15,000, and a payment on a Federal Land Bank mortgage was due. Bukacek was unable to exercise an option he held to buy the 180-acre tract owned by Virginia Bukacek. In other words, Bukacek was in serious financial difficulties. It was at this time that Bukacek went to see appellee Fitzhugh Burttram about saving "my farm."
In January, 1968, James Bukacek and the three individual respondents, Fitzhugh Burttram, Clarence B. Kelly and Ray Wyatt, entered into an agreement whereby Pell City Farms, Inc., was formed. Pursuant to the agreement, Bukacek conveyed his 300-acre tract to Pell City Farms, Inc., and the corporation eventually exercised the option held by James Bukacek, and assigned to the corporation, to purchase the 180-acre tract from Virginia Bukacek. The respondents paid the judgments, the property taxes, the mortgage payment, and the corporation and the individual respondents personally assumed the $37,600 mortgage and an additional mortgage executed to *853 complete the purchase of the 180-acre tract and pay the $15,000 state taxes (for which respondents had negotiated an extension).
One of the complainant's principal arguments here is that Pell City Farms, Inc., grantee under the deeds executed by James Bukacek and his ex-wife, Virginia Bukacek, was incapable of taking legal title because the Articles of Incorporation were not filed with the Judge of Probate as required by Title 10, § 21(11), Code of Alabama, 1940 (Recompiled, 1958). Complainant argues that prior to the filing of the Articles of Incorporation, Pell City Farms, Inc., was neither a de jure nor a de facto corporation, and therefore was incapable of taking title to the real property. Complainant's argument, while very persuasive, under the facts of this case is not convincing. The evidence clearly shows that Bukacek was one of the incorporators of Pell City Farms, Inc., that he was an officer, director, and stockholder, and that he executed the deed transferring his interest in the land to the corporation; and that he participated in the business activities of the corporation relating to the land after the Articles of Incorporation were filed in the office of the Judge of Probate on March 30, 1968.
Complainant cites no Alabama case which supports his argument. He does cite cases from other jurisdictions which hold that if the Articles of Incorporation are not filed, the corporation does not exist.
Our examination of decisions from other jurisdictions shows that the courts are not in agreement as to whether a corporation de facto may be created notwithstanding failure to file the articles of incorporation as required by statute. The broad view is that the failure to file the required papers prevents the organization from becoming a corporation, and in the absence of any filing of the articles of incorporation there is neither a charter nor a colorable attempt to obtain one. 18 Am.Jur.2d, Corporations, § 74.
Assuming, without deciding, that we would subscribe to the broad view that no corporation was here formed prior to the filing of the Articles of Incorporation, we think the fact situation here presented shows that while Pell City Farms, Inc., may not have been a corporation de jureor perhaps even de factoinsofar as the transaction here is concerned, it should be regarded practically as a corporation, being recognized as such by the parties themselves. In other words, the incidents of corporate existence may exist as between the parties by virtue of an estoppel. Thus, besides corporations de jure and de facto, there can be a recognition of a third class known as "Corporations by estoppel." Corporations by estoppel are not based upon the same principles as corporations de facto. The doctrine of de facto corporations has nothing to do with the principle of estoppel. In fact, a corporation de facto cannot be created by estoppel, the only effect of an estoppel being to prevent the raising of the question of the existence of a corporation.
Bukacek was one of the incorporators; he dealt with the corporation as a corporation both before and after the Articles of Incorporation were filed. Under such facts, Bukacek is estopped to deny the existence of the corporation at the time he voluntarily executed a deed transferring property to the corporation even though the Articles of Incorporation had not been filed at that time.
Our ruling here is limited. It is based on equitable grounds which preclude the complainant here from denying corporate existence. As against the state, of course, a corporation cannot be created by agreement of the partiesthe statutes make certain prerequisitesbut as between themselves and in connection with their own private litigations as here involved they may, by their agreements or their conduct estop themselves from denying the fact of the existence of the corporation. We hold, therefore, that Bukacek is estopped to deny the existence of Pell City Farms, Inc., even though it may have been neither de facto *854 nor de jure at the time he executed the deed making the corporation, by its corporate name, the grantee.
Appellant also claims that Title 7, § 1112, grants to him a right to a jury trial and that the trial court erred in striking his demand. Whether the trial court should have initially granted the trial by jury is now academic since we find the trial judge to have been correct in determining that the complainant was not entitled to relief on his statutory bill to quiet title.
The evidence clearly shows that the complainant here was not in "peaceable possession" as those terms are defined in our decisions. This court has repeatedly held that in order to maintain the statutory proceeding to quiet title the proof must show a peaceable possession in the complainant as distinguished from a contested, disputed or scrambling one. 16 Ala.Dig., Quieting Title.
The evidence in this case shows affirmatively that the complainant was not in peaceable possession, and the trial court properly denied any relief to the complainant on his statutory proceeding. Having decided that, we now face the question of whether the trial court should have granted relief to the respondents on their cross-bill. We hold that the court did not commit error in this regard.
In Chestang v. Tensaw Land & Timber Co., 273 Ala. 8, 134 So. 2d 159 (1961), we have discussed very thoroughly the power of an equity court to quiet title in the respondent when the complainant fails to make proof of peaceable possession and the proof shows the respondent has the better title and has peaceable possession. We could extend this opinion and fully discuss this point, but to do so would merely mean a restatement of the law as so ably set forth in Chestang, supra. We, therefore, hold the trial court did not commit error in granting the relief requested by the respondents in their cross-bill.
We have considered complainant's assignments of error 5 and 6, which deal with the admission of evidence. We have carefully reviewed the objections made and find no prejudicial error with regard to these two assignments of error.
We note that the decree of the trial court reads:
We assume the trial court intended to vest title in Pell City Farms, Inc., as prayed for by the respondents in their cross-bill. In order that the decree read properly, we hereby modify it by striking that portion of the decree above quoted and substitute in lieu thereof the following:
Except for the slight modification of the decree, the judgment of the trial court is due to be affirmed.
Decree modified and, as modified, affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur. | July 2, 1970 |
5f34ee56-78bf-4e6a-9e6c-781998b61020 | Adkison v. Adkison | 239 So. 2d 562 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 562 (1970)
In re Hollan S. ADKISON
v.
Theresa ADKISON.
Ex parte Hollan S. ADKISON.
4 Div. 394.
Supreme Court of Alabama.
July 10, 1970.
*563 Farmer & Farmer, Dothan, for petitioner.
L. A. Farmer, Dothan, for respondent.
McCALL, Justice.
We granted a Writ of Certiorari in this case in order to review the decision of the Court of Civil Appeals on a material question of first impression in this state. Act No. 987, Acts of Alabama, 1969 Special and Regular Session, p. 1744. This question involves the mother's challenging, in a declaratory judgment suit, the statutory priority of the father, who was divorced by her on the ground of voluntary abandonment, to maintain an action to recover damages for the wrongful death of their minor son. The Court of Civil Appeals reached the conclusion and held that the petitioner father had forfeited his right of action and that it had accrued to the mother.
The Court of Civil Appeals decided that several years prior to the death of the minor, the father had abandoned and left deserted his family, consisting of his wife and two minor sons, with no intent of supporting them in any way. Upon this premise the court concluded that at the time of the death of the minor child, the father had deserted his family within the meaning of Tit. 7, § 118, Code of Alabama. 1940.
We will not review the aspect of the opinion holding that the father had at one time deserted his family. This was concluded by the Court of Civil Appeals against the father and is not a question of first impression in this state.
In July, 1965, the equity court entered a decree pendente lite ordering the petitioner to support his family. Pursuant to that decree, he paid $100 a month for his two minor sons, made the mortgage payments on the home, and paid the utility bills for the family.
On July 26, 1967, the equity court entered a final decree of divorce against the petitioner on the ground of voluntary abandonment of his wife. The court awarded her the care, custody, and control of the two minor sons, giving the petitioner certain visitation rights, and ordering him to pay $40 a month for each son until said sons reached their majority or completed their education. The court further ordered the petitioner to convey to his wife *564 his interest in the home owned jointly by them. The father complied with the directions of the decree, and he made all of the support payments for the children timely. The two sons lived with their mother and on June 10, 1969, the youngest son, while still a minor, was killed in an automobile accident.
The petitioner contends that he cannot be considered as deserting his family, because he supported them, including his deceased son, up to the day of his death in an amount and manner agreed upon, and ratified by the equity court's decree. He further points out that he held visitation privileges under that decree. He insists that the exercise of his privileges and his compliance with his legal obligations of support are incompatible with a claim that he was deserting his family when his son was killed.
The question of first impression is whether or not a father, who once has deserted his family and was divorced by the mother on that ground, but who subsequently has made compulsory contributions to his family and paid monthly sums for the support of his children, pursuant to a separation agreement, merged in a court decree, has forfeited his right to maintain an action at law for the alleged wrongful death of his minor son.
The part of Tit. 7, § 119 of the Code of Alabama, 1940, involved here, reads as follows:
The applicable part of § 118 of the Code referred to reads as follows:
The right of action for a child's wrongful death was unknown to the common law. It is the creation of a statute (§ 119 in this case), and its precepts chart the strict course which we are enjoined to follow in its application to the facts of this case. Taylor v. City of Clanton, 245 Ala. 671, 18 So. 2d 369; Giles v. Parker, 230 Ala. 119, 123, 159 So. 826; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A. (n.s.) 568; Smith v. Louisville & N. R.R. Co., 75 Ala. 449.
When a father deserts his family, he forfeits his right of action to sue for the wrongful death of his minor child, and the right of action accrues to the mother. Ex parte Roberson, 275 Ala. 374, 155 So. 2d 330; McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291; Peoples v. Seamon, 249 Ala. 284, 31 So. 2d 88; Southern Ry Co. v. Carlton, 218 Ala. 265, 118 So. 458.
Since the word "abandonment" is frequently used interchangeably with the word "desertion," we will set forth definitions of the two terms, which are virtually synonymous, as they appear in the case of Shumway v. Farley, 68 Ariz. 159, 163, 203 P.2d 507, 509:
*565 In speaking of "voluntary abandonment" this court said in the case of Watkins v. Kidd, 261 Ala. 463, 464, 75 So. 2d 87, 88:
The test however is whether the condition of desertion specified in the statute, Tit. 7, § 118, Code of Alabama, 1940, and which gives the right of action to the mother, existed at the time of the death of the minor, regardless of whether a state of desertion existed at sometime prior thereto. Espinosa v. Haslam, 8 Cal. App. 2d 213, 47 P.2d 479; Frazzini v. Cable, 114 Cal. App. 444, 300 P. 121. In American R. Co. of Porto Rico v. Santiago, (CCA Porto Rico), 9 F.2d 753, involving a statute similar to ours, the court held that the fact that, as to the wife, there may have been a desertion, even where it includes a divorce secured by her, does not preclude the father from maintaining an action, where at the time of the death of the minor the father was not guilty of a desertion "of his family."
Applying this test to the facts in the present case, we find that on June 10, 1969, when the minor met his death, the father was paying support for him and his older brother. While this was a small amount considering the present day cost of living, it was fixed and approved by the court, so it is presumed to be fair and equitable to all concerned. The court said in In re Chernega's Estate, 54 Misc.2d 137, 281 N.Y.S.2d 908, 910:
In Southern Ry. Co. v. Carlton, 218 Ala. 265, 118 So. 458, one issue in the case was whether under the evidence a jury question was made on the mother's right to sue, upon allegations that the father had deserted the family. The father and children lived under one roof, occupied the same residence, the property of the wife and mother, but he did not support the children. The mother fed and clothed them, while the father supplied and ate at the table of another woman. He disowned the deceased minor as an illegitimate. This child was supported by others. The court held as follows:
In reaching its conclusion the court said:
*566 While in the case at bar, the father was not living under the same roof with his two sons and wife, he did pay support and maintenance for them, and presumably, the maximum amount he could pay. This factor of paying support is said, in a case where no support was being paid, to be of manifest, if not controlling, importance, on the issue of desertion. Southern Ry. Co. v. Carlton, supra. Would it not be of equal importance on the issue of desertion, in a case where support is being paid?
A question of whether or not a desertion existed between the father and his family under these statutes, Tit. 7, § 118 and § 119, Code of Alabama, 1940, was before the court again in the case of Ex Parte Roberson, 275 Ala. 374, 155 So. 2d 330, where the uncontradicted evidence was that the father supported his family at all times, even during the five days that intervened while he was allegedly deserting them. Briefly, the evidence was that the husband committed an assault and battery on his wife forcing her and their minor son to leave the home. Five days later the son was killed. The evening following the funeral, the father was seen walking hand in hand with another woman. He refused to pay the funeral expenses, and he sought to dispose of his wife's interest in some property. The parties later returned to live together. While there are aspects in the facts different from those in the present case, a point of similarity remains wherein the court said:
In this last cited case, the court in holding as a matter of law that the father was not guilty of desertion, pointed out that on the issue of desertion, the question of maintenance and support of the family within the father's reasonable means was of manifest, if not controlling, importance, citing Southern Ry. Co. v. Carlton, supra.
The case of Schwaiger v. Headrick, 281 Ala. 392, 203 So. 2d 114, involved an adoption proceeding in which one issue was whether the natural father had abandoned his child as that term is used in Tit. 27, § 3, Code of Alabama, 1940, so as to dispense with the need of his consent to the adoption. The divorce court had decreed that the father pay $35 per month for the support of the minor whose custody and control were given to the mother, reserving to the father custody and control, during specified hours on Saturday and Sunday. It appeared that the natural father had quit visiting the child whose mother had remarried, and after making two payments for support of the child, had quit paying. Friction and misunderstanding about the payments had arisen. The probate court decreed the adoption. In reversing the case this court said:
In the Florida case of Welch v. State, 69 Fla. 21, 67 So. 224, cited with approval in
*567 our case of Southern Ry. Co. v. Carlton, supra, the court commented as follows:
It occurs to us that the reverse of this ought equally be the law, so we think that affording the means of their support is not fairly and reasonably included in the concept of desertion.
Presumably the petitioner father in this case exercised his parental privilege of visitation to the extent that he was permitted. There, at least, is nothing to the contrary. He had few, if any, remaining rights that he could exercise, or duties and obligations that he could perform for his children, because they were in the custody of their mother and his opportunity to visit and communicate with the family was circumscribed by the court decree. There is no contention, that at the time of his son's death, he was remiss in his legal obligations of support, parental care and training of his sons, or that he then withheld from them his affection or companionship wherever and whenever either could be given. While there was no evidence of an effort toward reconciliation by him, at the same time there was no evidence that a reconciliation might be acceptable. Even speculating upon reconciliation between couples, formerly married, suggests such delicate problems, as to make the subject's consideration as a requirement of good faith impractical. The question is not primarily one of, had the father deserted the family? This issue had long since been foreclosed against him, but, was he deserting his family in June, 1969, when his son was killed? We think not.
In view of this we are of the opinion that the father has not forfeited his right of action to sue for damages on account of the alleged wrongful death of his minor son, and that he is the proper plaintiff under the statute rather than the mother. The Court of Civil Appeals erred in holding to the contrary.
The only other question in this case relates to who is entitled to damages, under said Section 119, if there is a recovery. This has been answered by the Supreme Court in the case of Peoples v. Seamon, 249 Ala. 284, 31 So. 2d 88, from which we quote the following:
The judgment of the Court of Civil Appeals must therefore be reversed and the cause remanded thereto for further consideration.
Reversed and remanded.
LIVINGSTON, C. J., LAWSON, SIMPSON, MERRILL, COLEMAN and BLOODWORTH, JJ., concur.
HARWOOD and MADDOX. JJ., dissent.
HARWOOD, Justice (dissenting):
No clearer standard for the administration of law and justice may be found than that set forth in II Cor. 3:6:
"The letter killeth, but the spirit giveth life."
Not only the spirit, but the plain concept of Sec. 119, Title 7, Code of Alabama 1940 (Wrongful Death Statute), is to give to the parent having the custody, control, and *568 the responsibility of rearing, guiding, and caring for the child a cause of action for the death of the child caused by another's tortious act. Implicit in the governing codal provisions (Sees. 118 and 119 of Title 7, Code of Alabama 1940), is that the cause of action vests in the parent exercising these duties that is, that parent who is the true head of the household in which the child resides.
Here it had been judicially determined in the divorce proceedings that the appellant-father had abandoned his family. The custody of the two minor sons was awarded to the mother.
Although the father made payments for the support of the two minor children, these payments were made by virtue of, and under the compulsion of, a court decree.
I cannot see that these compelled support payments should be deemed to overcome, and render for naught, the overwhelming facts of this case that, in truth, and in fact, the mother-appellee was the real head of the family of which the deceased son was a member.
If contribution for support be made the chief and governing criteria for determining in whom the cause of action vests under Section 119, then we observe that in this case such a mechanistic rule would yet vest this cause of action in the mother. This for the reason that it is clearly inferable from the record that the contributions made by the mother for the support of the two minor children exceeded substantially the contributions made by the father.
The reasoning of the Court of Civil Appeals, and the authorities in support thereof, sustain fully the conclusion reached by that court.
For the reasons expressed above, I would affirm the judgment of the Court of Civil Appeals.
MADDOX, J., concurs. | July 10, 1970 |
64c03154-e297-4c6d-8f7d-ebcd31cd91b5 | Seibold v. State | 253 So. 2d 302 | N/A | Alabama | Alabama Supreme Court | 253 So. 2d 302 (1970)
Edward Albert SEIBOLD
v.
STATE of Alabama.
5 Div. 868.
Supreme Court of Alabama.
July 16, 1970.
After Remandment December 17, 1970.
Rehearing Denied October 7, 1971.
*305 Walker, Hill & Gullage, Opelika, for appellant.
MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Special Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
On November 7, 1967, the grand jury of Lee County, Alabama, returned an indictment against the appellant, Edward Albert Seibold, hereinafter referred to as defendant, for murder in the first degree in the killing of Mary Lynn Sinclair.
The defendant was apprehended in the state of Florida and, following extradition proceedings, was returned to this state on December 17, 1967. Arraignment was originally scheduled for December 22, 1967, but on defendant's motion was continued until December 27, 1967. On that date, with his attorneys present, the defendant, prior to entering pleas to the merits, filed a "Motion for Investigation of Sanity of Defendant," pursuant to the provisions of Section 425, Title 15, Code 1940, Recompiled in 1958. This motion was accompanied by the affidavit and letter, respectively, of two reputable specialist practitioners in mental and nervous diseases. The court denied the motion on the same day, but granted leave to refile said motion after the defendant had been examined by a third reputable specialist practitioner in mental and nervous diseases.
The defendant then filed a plea in abatement which set forth that he was presently insane and incapable of competently assisting in his defense and praying the court to abate prosecution of the cause until such time as his sanity had been restored to him. The defendant further prayed the court to set the plea down for a determination by a jury under the provisions of Section 426, Title 15, Code 1940, Recompiled in 1958. The state's motion to strike the plea in abatement was granted.
The defendant entered pleas of not guilty and not guilty by reason of insanity.
On January 8, 1968, a "Second Motion for Investigation of Sanity of Defendant" was filed. Said motion was accompanied by the affidavits of three reputable specialist practitioners in mental and nervous diseases. The court heard ore tenus the testimony *306 of Dr. Howard S. Weldon. The motion was denied.
Thereupon, the defendant filed a "Motion for Inquiry into Mental Condition of Defendant Before Trial," pursuant to the provisions of Section 426, supra. On January 12, 1968, said motion was denied by the court.
Trial was commenced on January 15, 1968, and on January 20, 1968, the jury returned its verdict of guilty of murder in the first degree and imposed the death penalty. Judgment and sentence in accord with the verdict were pronounced by the trial court on the same day.
The appeal before this Court is under the automatic appeal statute applicable in cases where the death penalty is imposed. Act No. 249, General Acts of Alabama 1943, p. 217, Title 15, Sec. 382(1), et seq., Code 1940, 1955 Cum. Pocket Part, 1958 Recompiled Code of Alabama.
Upon proper investigation, the defendant was determined to be indigent within the language of Section 382(1) et seq., supra. The trial court appointed counsel who had represented the defendant in a retained capacity in the trial to represent him on this appeal.
The facts pertinent to the commission of the offense for which the defendant was tried and convicted are undisputed. We deem it unnecessary that such facts be set out in great detail in this opinion. The defense was based primarily, if not solely, on the plea of not guilty by reason of insanity.
On the night of September 6, 1967, Mrs. Juanita Sinclair, her four daughters, and a neighbor's daughter were in the Sinclair residence in Auburn, Alabama. The Sinclair children, ranging in age from nine to twenty, were Mary Lynn (the youngest), Elizabeth, Faye, and Cathey (the oldest). The neighbor's child, Mary Durant, age 9, was spending the night in the Sinclair residence as the guest of Mary Lynn.
Shortly before midnight, Mrs. Sinclair retired on the sofa in the living room, located on the intermediate and ground level of the tri-level structure. Cathey was sewing in the den, located on the lower level. The other Sinclair children and the Durant child were sleeping in bedrooms on the upper level. At approximately 11:50 P.M., an intruder, identified as the defendant, forcibly broke open the door leading from the outside into the living room, entered, and, from a shotgun which he carried, fired a shot which struck Mrs. Sinclair in the arm. The defendant then descended the stairs to the lower level. Cathey, upon hearing the initial commotion upstairs, concealed herself in a closet temporarily, then escaped the house via a window. The defendant, upon reaching the lower level, entered a bedroom adjacent to the den, where he fired a shot from the shotgun into a lifesize doll which was sitting on a bed. He re-traced his steps to the intermediate level, and then continued up the steps to the upper level. As he ascended the stairs to the upper level, Mrs. Sinclair escaped from the house via the doorway through which the defendant had entered. In the driveway outside the house, Mrs. Sinclair met Cathey and together they proceeded to the residence of Dr. Thomas, a neighbor, located some 500 feet from the Sinclair residence.
On the upper level, Elizabeth and Faye had been sleeping in one bedroom; Mary Lynn and Mary Durant had been sleeping in another. As the defendant opened the door and entered the bedroom in which Elizabeth and Faye were situated, Faye slipped underneath the bed, where she remained undiscovered by the defendant. According to Faye's testimony, Elizabeth attempted to arise from the bed as the defendant neared, but fell back onto the bed when the defendant swung the shotgun which he carried. As Elizabeth again arose from the bed, the defendant demanded that she tell him the whereabouts of Mrs. Sinclair and Cathey. Elizabeth stated that she did not know. The two then paced back and forth in the hallway, continuing to argue, until Faye heard what she described as "sort of a gurgling noise," and then silence.
*307 From her place of concealment underneath the bed, Faye heard the telephone ring several times and then stop. After a short period, the telephone again began to ring. Faye crawled from underneath the bed, descended the stairs to the intermediate level, where the telephone was located, and answered it. She told the caller, a neighbor who lived to the rear of the Sinclair residence, to get Dr. Thomas and the police.
Faye then returned to the upstairs, where, upon examining Elizabeth's body, she detected no pulse. She then proceeded into the bedroom in which Mary Lynn and Mary Durant had been sleeping. On the bed were the bodies of the girls, both of which were covered with blood. Upon examination, Faye detected no pulse in the body of either girl. She then descended the stairs to the intermediate level and exited the house via the doorway leading from the living room onto the carport, where she met Dr. Thomas and several policemen.
The testimony at trial tended to show that Cathey had met the defendant in 1966, at which time they attended the same class at Auburn University. They dated over a period of time and the defendant became well known in the Sinclair household. The relationship between the defendant and members of the Sinclair family seemed to deteriorate after Cathey left for Wellesley College in the fall of 1966, with only sporadic meetings between the defendant and Cathey and the defendant and other members of the Sinclair family. The testimony elicited relative to the defendant's relationship with the Sinclair family primarily pertained to the plea of not guilty by reason of insanity. In view of the questions presented on this appeal, a detailed recitation of that relationship is not required.
In argument, the defendant strongly urges that the trial court committed error to reverse in its rulings on the various motions interposed pursuant to Section 425, supra, and Section 426 et seq., supra, respectively.
In support of the "Motion for Investigation of Sanity of Defendant," filed on December 27, 1967, the defendant filed the affidavit of Dr. Charles E. Herlihy, dated December 26, 1967, and a letter from Dr. Hugo Waldheim, Jr., dated December 11, 1967. The position taken in the motion was that the defendant was at the time in confinement under an indictment for murder in the first degree and that said defendant was then insane in the opinion of Dr. Herlihy, a specialist practitioner in mental and nervous diseases, and, based upon the letter from Dr. Waldheim, a specialist practitioner in mental and nervous diseases, there was reasonable ground to believe that the defendant was presently insane. It was set forth in the motion that Dr. Charles H. Smith, also a specialist practitioner in mental and nervous diseases, would soon examine the defendant and submit a written report thereof to the court. Said motion prayed that a hearing on the motion be continued until such time as the written report of Dr. Smith was made available to the court and that upon hearing of said motion an order be made ordering the Sheriff of Lee County to deliver the defendant to the Superintendent of the Alabama State Hospitals for the purpose of determining the mental condition of the defendant and making a written report thereof to the court, pursuant to the provisions of Section 425, supra.
Section 425 of Title 15, supra, provides, in pertinent part, as follows:
Section 425, supra, expressly provides that the knowledge of the presiding judge as to the mental condition of an accused is to be obtained "* * * by the written report of not less than three reputable specialist practitioners in mental and nervous diseases, appointed by the judge, * * *." In the case under review, the trial judge made no such appointments as are contemplated by the language of Section 425, supra. The specialist practitioners who examined the defendant and submitted their written reports in support of the motion were not appointed by the trial judge.
Also, under Section 425, supra, the court is under no duty to appoint a lunacy commission or to procure the report of the Superintendent of the Alabama State Hospitals; the court, in its discretion, has simply the right to seek these aids when such reports may be deemed helpful. Howard v. State, 278 Ala. 361, 178 So. 2d 520; Divine v. State, 279 Ala. 291, 184 So. 2d 628. The question of the appointment of medical specialists in mental disorders in response to a motion is solely within the discretion of the trial court. Coon v. State, 278 Ala. 581, 179 So. 2d 710; Tiner v. State, 279 Ala. 126, 182 So. 2d 859.
The "Second Motion for Investigation of Sanity of Defendant" was filed pursuant to the provisions of Section 426, supra, which, in pertinent part, provides as follows:
Under Section 426, supra, it is within the discretion of the trial court to grant or refuse a motion to execute an inquisition as to the mental status of the defendant at the time of trial. Granberry v. State, 184 Ala. 5, 63 So. 975; Burns v. State, 246 Ala. 135, 19 So. 2d 450. Furthermore, the refusal of the trial court to suspend the trial and submit to a jury an inquisition as to the defendant's sanity under the provisions of this section at the time of trial is not revisable on appeal. Rohn v. State, 186 Ala. 5, 65 So. 42; Whitfield v. State, 236 Ala. 312, 182 So. 42.
The defendant argues in brief that he was denied those basic rights guaranteed by the Constitution as those rights are defined in Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815, in the refusal of the trial court to grant a hearing as to his mental condition at the time of trial. In Pate v. Robinson, supra, the Supreme Court held that the respondent, Robinson, was constitutionally entitled to a hearing on the question of his competency to stand trial. Counsel failed to demand a hearing as to the respondent's competency to stand *309 trial, but contended throughout the trial that the respondent was insane both at the time of the homicide and at the time of trial. The ruling of the Supreme Court is directed solely to the question of the respondent's competency to stand trial, and not to his mental condition at the time of the commission of the homicide.
In the instant case, the record shows that three motions, each of which was directed to the ordering of an examination to determine the then present mental condition of the defendant, were filed by defense counsel. The reports of reputable specialist practitioners were filed in support of the respective motions and, in the case of the "Second Motion for Investigation of Sanity of Defendant," the court heard ore tenus the testimony of Dr. Howard S. Weldon prior to ruling on said motion. The record further shows that, at the time the court ruled on the respective motions, the defendant, defense counsel, and the district attorney were present. Arguments by counsel were heard by the court. A "hearing" ordinarily is defined, in matters not associated with full trials, as a proceeding in which both parties are afforded an opportunity to adduce proof and to argue (in person or by counsel) as to the inferences flowing from the evidence. Fiorella v. State, 40 Ala.App. 587, 121 So. 2d 875, cert. denied 270 Ala. 737, 121 So. 2d 881. We find no constitutional infirmity in the hearings accorded the defendant on the respective motions filed in the case under review.
In brief, the defendant cites Lee v. State, M.D.Ala. 1967, 291 F. Supp. 921, in support of the contention that such a hearing as is contemplated in Pate v. Robinson, supra, was not accorded the defendant. It is well settled that the decisions of federal courts other than the Supreme Court are not binding on a state court of last resort. Lokos v. State, 278 Ala. 586, 179 So. 2d 714.
In direct examination of Dr. Herlihy, counsel for the defendant asked: "Doctor, in your opinion, based upon the events related to you by Eddie Seibold, do you have a judgment as to whether or not the acts of violence for which he is now on trial were the sole proximate result of the mental illness that he is now suffering from and that he was suffering from in September of 1967?" In sustaining the State's objection thereto, the lower court stated: "That is a question for the jury and the objection is sustained. That is entirely a question for the jury." The defendant reserved an exception to the court's ruling.
Counsel for the defendant then asked: "Doctor, do you have an opinion as to whether the acts which he has related to you and for which he is on trial here were the result of a mental illness which this man was suffering from in September of 1967?" Again, the court sustained the State's objection, stating: "He can testify as to his mental illness, but in the opinion of the court, respectfully, Mr. Walker, that is a question for the jury. The Doctor can testify about his mental condition but after all, as to whether he is guilty or not guilty by reason of insanity is going to be a question for the jury."
It is apparent that in propounding the above questions defense counsel sought to frame the questions within the context of Parsons v. State, 81 Ala. 577, 2 So. 854. However, as stated in Boyle v. State, 229 Ala. 212, 154 So. 575:
The trial judge correctly sustained the State's objections to the questions posed *310 by defense counsel, on the basis that such questions called for answers invasive of the province of the jury.
The defendant argues that the trial court committed error to reverse in refusing to grant the defendant's motion for a continuance in the trial of the cause. The matter of continuance in a criminal trial is addressed to the trial court's discretion, the exercise of which will not be disturbed unless clearly abused. Divine v. State, 279 Ala. 291, 184 So. 2d 628; Bosarge v. State, 273 Ala. 329, 139 So. 2d 302.
The motion for a continuance in the trial of the cause was overruled by the trial court on December 27, 1967. Trial date had earlier been set for January 15, 1968, which afforded defense counsel approximately three weeks in which to complete the preparation of the case for the defense. We find no abuse of the trial court's discretion in this respect and consequently no error to reverse.
On direct examination of the defendant's mother, defense counsel asked: "Mrs. Seibold, state whether or not after that incident which you have just testified about you were, yourself, in fear." The objection of the State was sustained, whereupon defense counsel repeated the request in essentially the same form. Again, the State's objection was sustained and defense counsel duly excepted thereto.
The above questions by defense counsel followed certain testimony of Mrs. Seibold, to wit:
It is settled in this state that a witness may not testify as to his own uncommunicated opinion, purpose, belief, or intent. Hardie v. State, 260 Ala. 75, 68 So. 2d 35. An exception to the general rule was enunciated in Alabama Power Co. v. Edwards, 219 Ala. 162, 166, 121 So. 543, 546, in the case of fear, as follows:
In Ingram v. State, 252 Ala. 497, 500, 42 So. 2d 36, 38, we further stated as follows:
In the case under review, substantial testimony of expert and lay witnesses directed to the defendant's plea of not guilty by reason of insanity was received in evidence. That being so, following the reasoning of this Court in Ingram v. State, supra, Mrs. Seibold's answer to the question propounded was material to the issue of the defendant's insanity and was admissible.
Mrs. Seibold testified at length and in detail to disputes, quarrels and antagonisms between herself and her son, and of her efforts to have him institutionalized. This testimony, coupled with the son's driving the automobile toward her, clearly showed that she had every right to stand in fear of the defendant. We cannot see that the defendant was probably injured in any substantial right merely by the sustention of the objection as to whether she was in fear at the time of the automobile incident. While we feel that Supreme Court Rule 45, Title 7, Appendix, Code 1940, Recompiled in 1958, is to be applied with great caution in capital cases, we see no reason why it should not be applied in a capital case where it is obvious that a defendant could not have probably been injured in a substantial right by a ruling.
*312 During the cross-examination of Cathey Sinclair, a witness for the State, the following exchange transpired:
The witness was allowed to answer the question and, in fact, the matter was treated extensively in subsequent testimony of the witness. We see no prejudice in the comment of the court complained of by the defendant.
The defendant assigns error resulting from the following exchange during the cross-examination of Faye Sinclair, a witness for the State:
The witness' testimony is, in the first place, confusing. The trial was conducted in January, 1968. "Last summer" would have been in 1967; "the summer before last" would have been in 1966. Defense counsel had directed the witness' attention to the summer of 1967 and apparently that is the time at which the defendant asked the witness the alleged question.
The answer sought by the above question was either the opinion of the witness *313 as to the accused's mental condition, or a mere statement of fact, i. e., what she had replied. If viewed as seeking Faye's opinion as to the accused's mental condition, the question was faulty in that no proper predicate had been established to permit a lay witness' opinion as to mental condition. To authorize a nonexpert witness to give his opinion of the existence of an unsound condition of mind, he must not only have opportunity to form a judgment, the facts on which such judgment is based must be stated. Jones v. Jones, 275 Ala. 678, 158 So. 2d 481; Haghart v. Cooley, 278 Ala. 354, 178 So. 2d 226. If viewed as calling merely for a statement of fact, i. e., her answer to the defendant's question at the time of the conversation, to have allowed the answer would in effect have permitted evidence by indirection which could not have been shown directly. The ruling of the trial court on this point was not improper.
Counsel for defendant contends that error resulted from the following ruling by the court in relation to whether Cathey had told the defendant he should see a psychiatrist:
The following excerpts are taken from the record of the previous testimony of Cathey Sinclair, on cross-examination, at the time she first appeared as a witness:
"Q. During this period of time, in any of those telephone conversations or letters, either one, did you tell Eddie Seibold to go to a psychiatrist?
The State's objection to the question propounded by defense counsel, based on its being repetitive, was quite properly sustained.
The defendant further complains of several instances during the progress of the trial in which the court made allegedly disparaging remarks about the defendant's case such as to require a reversal on review.
The following took place during the cross-examination of Dr. Bernard Breyer, a professor of English at Auburn University, appearing as a witness for the State:
While it is not usual for courts to interfere and rule out evidence which counsel is willing to let in, yet if the evidence is irrelevant or immaterial, the court may rule it out of its own motion, and its ruling furnishes no ground for reversal. Durrett v. State, 62 Ala. 434; Rogers v. State, 36 Ala.App. 602, 61 So. 2d 249.
During the cross-examination of Cathey Sinclair, the trial judge stated as follows: "At least to insanity. Some of the questions you are asking her, I can't conceive, to save my life, what bearing they have on the question of insanity." It is the court's duty to confine the evidence to the points in issue in order that the attention of the jury may not be distracted, or that their minds may not be withdrawn from the main issue and directed to matters which are foreign or of questionable or doubtful relevancy. Jones v. State, 17 Ala. App. 394, 85 So. 830.
At another point in the cross-examination of the same witness, the following exchange took place between the court and defense counsel:
There is no error in the court's statement that the defense had shown no insanity. Defense counsel took no exception to the remarks of the court and, by implication, agreed that no insanity had been shown at that point. He should not be heard to complain now. The court does not invade the province of the jury in a criminal prosecution by stating that there is or is not evidence of particular facts when such is the case. Section 270, Title 7, Code 1940, Recompiled in 1958; Breedwell v. State, 38 Ala.App. 620, 90 So. 2d 845.
In support of the contention that the lower court erred in various instances by making disparaging remarks about the defendant's case, defendant cites Haithcock v. State, 23 Ala.App. 460, 126 So. 890, where the Court of Appeals stated as follows:
Our view in the instant case is consonant with that expressed in Haithcock v. State, supra. An examination of the entire record fails to indicate that the remarks complained of by the defendant were, in any sense, "calculated to control the jury in its consideration of the weight to be given to testimony." Quite to the contrary, we are to the conclusion that the remarks of the trial judge were made in the interest of a trial free from prejudice to the rights of the defendant. What we said in Doss v. State, 224 Ala. 90, 93, 139 So. 290, 292, is applicable here:
The lower court refused to allow the defendant to introduce into evidence the birth certificate of the defendant's father. Dr. Seibold, who allegedly had the birth certificate in his custody at the time he was a witness, testified that his full name was Herman Rudolph Seibold; that he was the father of the defendant; that he had never been known by the name "Strouthy"; and that he was born in Philadelphia, Pennsylvania, on August 30, 1908. It was following this testimony that the defendant sought to introduce the birth certificate, to which the State's objection was sustained.
Several witnesses offered testimony to the effect that the defendant had, *316 at various times, stated that his father was an illegitimate German immigrant who had settled in Philadelphia. There was further testimony to the effect that the defendant believed that his father had the name "Strouthy" appearing on his, the father's, birth certificate and that the defendant had expressed a desire to have his own name changed to "Strouthy." It is not clear what purpose the defense had in mind in seeking to introduce the birth certificate into evidence, as the contents thereof are not revealed in the record. This Court cannot review rulings in respect to written instruments which are not in the record. Woodall v. Malone-Harrison Motor Co., 219 Ala. 366, 122 So. 357.
During the examination of defendant's witness, Colonel Compton, the recorder of the City of Auburn, the following question was asked on direct examination:
The objection to the question was sustained. During the direct examination of the defendant's mother, the following questions were asked and objections to each sustained:
Appellant argues that the defense had as much right to show by its witnesses that the mother of defendant did take steps to get him committed to an institution as the State had to ask the questions on cross-examination as provided in Jones v. The State, 181 Ala. 63, 61 So. 434. We agree that where, as here, the plea is not guilty by reason of insanity, the relatives of the defendant should be allowed to show that they did try to get him committed to an institution. We think the trial court erred in sustaining the objections to the questions addressed to Mrs. Seibold.
We do not think the court erred in sustaining the objection to the question directed to Colonel Compton because it lacks specificity as to commitment. The mere fact that defendant was "charged with something" was irrelevant to the charge on the pleas here. There was nothing to show a connection between the seeking of a warrant for the defendant and an attempt to have him committed for insanity.
Further, a defendant in a murder prosecution cannot complain of a ruling by the court refusing to permit a witness to answer a question when the court thereafter permitted the same witness to answer substantially the same question. Stephens v. State, 250 Ala. 123, 33 So. 2d 245; 7 Ala.Digest, Criminal Law. See Doughty v. State, 228 Ala. 568, 154 So. 778, and Deloney v. State, 225 Ala. 65, 142 So. 432, where the questions dealt with the mental condition of the defendant under a plea of not guilty by reason of insanity.
Mrs. Seibold closed her direct examination by saying that her son "was definitely of unsound mind." The following then occurred:
This testimony of Mrs. Seibold was much fuller and covered more instances than the defendant had sought to raise on direct examination and any error in excluding the prior evidence was cured by Mrs. Seibold's testimony on cross-examination.
The defendant's motion for a new trial, assigning forty-two grounds of error, was filed on February 19, 1968. The court, after several continuances, heard the motion on June 26, 1968. Immediately prior to said hearing, the defendant filed an "Amendment to Motion for New Trial," assigning two additional grounds of error based upon the decision rendered on June 3, 1968, by the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776.
The trial court refused to consider the "Amendment to Motion for New Trial," basing its action on the fact that said motion was filed more than thirty days after the date of final judgment. Neither of the grounds assigned in the later motion were germane to those assigned in the original motion for a new trial. This action was proper. See Southern Railway Co. v. McCamy, 270 Ala. 510, 120 So. 2d 695; Burton v. State, 40 Ala. App. 146, 109 So. 2d 311.
The affidavits filed in support of the "Amendment to Motion for New Trial" indicate that, upon the trial court's qualification of the jury venire by asking whether or not any of them were opposed to capital punishment, three or four jurors raised their hands to indicate an affirmative answer. The trial court thereupon directed the clerk of the court to remove from the jury venire the names of those jurors who had raised their hands. As stated supra, the lower court refused to consider the amendment containing the two grounds directed to the trial court's action in this respect. However, said amendment and affidavits are bound in the transcript, within the clerk's seal. Under Section 389, Title 15, Code 1940, Recompiled in 1958, it is the duty of this Court in a case of this nature to consider all questions apparent on the record and render such judgment as the law demands. On that basis, we direct our attention to the "Amendment to Motion for New Trial," and the affidavits filed in support thereof.
In Witherspoon v. Illinois, supra, the Supreme Court of the United States held that "* * * a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause imply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." The court further held that the decision was to receive retroactive application in footnote 22 to the opinion. *318 In Witherspoon, supra, at the petitioner's trial the prosecution had eliminated forty-seven prospective jurors by challenging them under the Illinois statute in effect at that time, which provided as follows:
The Alabama statute under which the jurors were challenged for cause in the instant case, Section 57, Title 30, Code 1940, Recompiled in 1958, provides as follows:
In Boulden v. Holman, Warden, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433, the Supreme Court made it clear that no distinction could be drawn between the phrase "conscientious scruples against capital punishment," as used in the Illinois statute and considered in Witherspoon, supra, and the phrase "fixed opinion against capital * * * punishments," as used in our statute. See Jackson v. State, 285 Ala. 564, 234 So. 2d 579.
It appearing from the affidavits filed in the case under review that three or four prospective jurors were excused simply because they indicated they were opposed to the death penalty, we are of opinion that the cause must be remanded for a further hearing in the court below. The hearing should be conducted expeditiously, with the defendant and his attorneys present. Those jurors who were excused upon challenge for having an opinion against the death penalty are to be summoned and examined at said hearing.
As was true in Jackson v. State, supra, the "examination should be directed toward determining whether or not they could, in view of their affirmative answers as to having fixed opinions against capital punishment, nevertheless consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty, if they, being the triers of fact were convinced of the guilt of the accused, and that the facts warranted a sentence of death." Id., at 586.
The lower court is further instructed that a full record be made of the hearing, a transcript of such testimony be made, together with the court's conclusion from the evidence adduced, and that a transcript of these proceedings under the seal of the clerk be promptly forwarded to this court.
Remanded for further proceedings in accordance with this opinion.
SIMPSON, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.
COLEMAN, J., concurs in result.
LAWSON, J., not participating.
MERRILL, J., not sitting.
PER CURIAM.
Pursuant to our directions on remandment of this case, the lower court entered an order scheduling a hearing for July 28, 1970, the purpose of which was to consider the correctness of appellant's contention that certain veniremen had been eliminated as jurors on the basis that they had a "fixed opinion" against capital punishment, and that such exclusion violated the mandate of the United States Supreme Court set forth in Witherspoon v. Illinois, *319 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776. The lower court further ordered that the appellant be transported to the Lee County, Alabama, jail and made available for said hearing.
The hearing was conducted in open court at the appointed time, with the appellant, his attorneys, and the assistant district attorney of Lee County in attendance.
Testimony taken at the hearing revealed that only one juror, Charles M. Allen, had been excused on the basis of a "fixed opinion" against capital punishment in the proceedings of January 15, 1968. The lower court first explained fully the purpose of the hearing. Then Mr. Allen, who was present in response to a subpoena, was questioned by the court in phraseology essentially similar to that used by the United States Supreme Court in Witherspoon v. Illinois, supra; Boulden v. Holman, Warden, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433, 438, and Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221. Counsel for appellant was then permitted to examine Mr. Allen at length.
The transcript of testimony taken at the hearing tends to show conclusively that the excused juror, Mr. Allen, would automatically have voted against the imposition of the death penalty by the jury no matter what facts the trial of the cause might have revealed. Mr. Allen further indicated in response to questioning that he would have been irrevocably committed to vote against the imposition of the death penalty before the trial began and would have "locked the case up," had he served as a juror.
In Witherspoon, supra, 391 U.S. at 522, 88 S. Ct. at 1777, the United States Supreme Court stated:
We conclude that the evidence shown by the transcript of testimony taken at the hearing shows unequivocally that Mr. Allen was properly excused under the rule of Witherspoon, supra.
In brief, appellant contends that the lower court erred in conducting the examination of Mr. Allen itself, and in asking "numerous leading questions." We disagree. The questions asked Mr. Allen by the lower court were phrased in such a manner as to precisely determine the subject's position on the question of the imposition of the death penalty. Further, at the conclusion of the lower court's examination, defense counsel was permitted to, and did, examine Mr. Allen at length.
The testimony taken on remandment, in compliance with the instructions of this Court, shows that there was no error in excusing juror Allen for cause.
The judgment is therefore due to be, and is, affirmed.
Affirmed.
All the Justices concur except LIVINGSTON, C. J., not sitting.
Application for rehearing overruled.
SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., and LAWSON, J., dissenting.
HEFLIN, Chief Justice (dissenting):
I must respectfully dissent. I feel the defendant was denied his constitutional *320 right to have a hearing to determine his mental competency to stand trial. The principle has long been recognized that an accused should not be tried for an offense if he is, at the time of the trial, insane. In fact, Blackstone in 4 Blackstone's Commentaries 24, sets out,
"* * *
In a note in 81 Harvard L. Rev. 454 (1967) entitled, Incompetency To Stand Trial, the author wrote, "The common law provided, as a matter of fairness and humanity, that a person could not be criminally tried if unable, because of mental or physical disability, to understand the nature of the proceedings against him or to act rationally in his own defense."
This Court in Ex parte Lee, 248 Ala. 246, 249, 27 So. 2d 147, 149, stated:
Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956) held that conviction of an accused person in a federal court while he is legally incompetent violates due process. In Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815, for the purpose of "resolving the difficult questions of state-federal relations", the United States Supreme Court made it clear that if a "sufficient doubt" as to the present competency of an accused is made known to the trial court, then the defendant is constitutionally entitled to a hearing on the issue of his competency to stand trial. In that case the accused before the trial had not requested a hearing on his mental competency to stand trial. However, throughout the trial the counsel for the defendant insisted that Robinson's present sanity was very much in issue; thus the Supreme Court held that sufficient notice was before the trial court to require it to have had a separate hearing concerning defendant's competency to stand trial. The two dissenters to that opinion, Justices Harlan and Black, while mainly disagreeing with the majority on the evaluation of the factual issue, expressed themselves in Justice Harlan's language as follows:
It is clear from the dissenting opinion as well as from the majority opinion in that case that all nine of the members of the United States Supreme Court agreed that upon sufficient doubt being raised as to the mental competency of a defendant to stand trial that he is entitled to have a separate hearing to determine whether or not he should stand trial under his present mental condition.
*321 Article 2 of Chapter 21 of Title 15 of the Code of Alabama 1940, deals with the matter of sanity inquisitions and proceedings in regard to those charged with crimes. The two pertinent sections pertaining to the case under review are Sections 425 and 426 of Title 15 of the Code of Alabama 1940. Under Section 425, supra, (the pertinent part of which is quoted in the majority opinion) the hearing is for the purpose of allowing the trial court judge to determine whether or not the defendant should be sent to the Alabama State Hospital for the purpose of getting the Superintendent of the Alabama State Hospital and two members of his medical staff to constitute a commission on lunacy with the view of determining the mental condition of such defendant and the existence of any mental disease or defect which would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the crime. It is clear that this section does not call upon the trial judge to make a determination pertaining to his mental competency to stand trial.
In Lee v. State of Alabama, 386 F.2d 97, 106 (5th Cir. 1967), the United States Court of Appeals for the Fifth Circuit commented on said Section 425 as follows:
Thus a hearing under said Section 425 fails to meet the requirements of the hearing to determine the mental competency of a defendant to stand trial as mentioned in Pate v. Robinson, supra.[1]
Section 426, supra,[2] provides for determination by a jury of the present sanity of *322 a person charged with a felony, if he is held in confinement under indictment. A hearing under this section has been held to be a compliance with the requirement of Pate v. Robinson, supra, by the United States Court of Appeals, Fifth Circuit, in the case of Lee v. State of Alabama, supra.
In the instant case, a number of motions pertaining to the mental condition of the defendant were filed. However, all of these motions were filed under said Section 425 with the exception of the "Motion for Inquiry Into Mental Condition of Defendant Before Trial" and a plea in abatement. The said "Motion for Inquiry Into Mental Condition of Defendant Before Trial" and the plea in abatement clearly reflect that the defendant sought a determination of his competency to stand trial by a jury under said Section 426.
In the majority opinion it is stated that a "Second Motion for Investigation of Sanity of Defendant" was filed pursuant to the provisions of Section 426, supra. This is just not a correct statement. Nowhere in said motion does Section 426 appear. The following portion of the prayer of said motion clearly shows that the relief sought was under said Section 425:
The only ore tenus hearing that the trial judge held in connection with the numerous motions was concerning said "Second Motion for Investigation of Sanity of Defendant". It is apparent from the statements made by the lower court judge during the hearing that he considered the hearing as being an inquiry pertaining to whether the defendant should have an examination as to his insanity (Section 425). The trial judge, on one occasion during the hearing on said "Second Motion for Investigation of Sanity of Defendant", stated:
The majority opinion seems to hold that since a hearing or "hearings" were held by the trial court then such suffices to meet the requirement of Pate v. Robinson, supra. The majority opinion construes a hearing as including a proceeding in which the trial judge considered a motion and the exhibits thereto. In fact, the majority holds that they find no constitutional infirmity in the hearings accorded the defendant on the respective motions filed in the case under review. I cannot agree that any so-called *323 hearing in the case under review complied with the requirement of Pate v. Robinson, supra. All of the motions were specifically made under either Section 425 or Section 426. The plea in abatement sought a jury determination under the provisions of said Section 426. As has been heretofore pointed out a hearing under Section 425 fails to comply with said constitutional requirement. Clearly, no hearing was held under Section 426 because a jury determination was not made as is required by Section 426. At the utmost any so-called hearing could be, solely and only, construed as a hearing to determine if "sufficient doubt" existed as to the mental competency of the defendant to stand trial. No hearing was held to ascertain whether the defendant possessed the necessary and requisite mental competency to stand trial.
The "Motion for Inquiry into Mental Condition of Defendant Before Trial" had attached thereto as exhibits, an affidavit from Dr. Charles E. Herlihy, psychiatrist of Birmingham; an affidavit from another psychiatrist by the name of Dr. Charles H. Smith; and a third affidavit from Dr. Hugh Waldheim, Jr., psychiatrist of Miami, Florida. Said motion also averred under oath that the defendant had been examined by Dr. Ronald Hamby, a practicing clinical psychologist at Jackson Hospital in Montgomery and recited that it was the opinion of the said Dr. Hamby that the defendant was then of unsound mind, psychotic, and paranoid. All of the other motions had the identical affidavit of Dr. Herlihy, as well as further documentary testimony attached thereto as exhibits. The "Second Motion for Investigation of Sanity of Defendant" had as exhibits the identical affidavits of Dr. Smith and Dr. Waldheim, as well as the affidavit of Dr. Herlihy. The court heard the oral testimony of Dr. Howard S. Weldon, a general practitioner and surgeon of Opelika, Alabama. There can be no doubt that considerable expert psychiatric evidence was presented to the trial judge.
The affidavit of Dr. Charles E. Herlihy recited that he had examined the defendant on December 26, 1967 (which was less than three weeks prior to the date the trial began) and concluded, after detailing many findings, that he thought Seibold was psychotic (insane in a legal sense) and should be committed to the appropriate mental hospital for further diagnostic procedures. He further stated that the patient was not then capable of competently assisting in the case pending against him and in layman's language the patient was of unsound mind.
Dr. Charles H. Smith, in his affidavit, set forth his findings and observations in detail from an examination on January 3, 1968, and concluded as follows:
The documentary evidence from Dr. Hugo Waldheim, Jr. stated that he had seen the defendant in the Dade County (Florida) Jail on December 9, 1967, for the purpose of making a psychiatric evaluation and from his interview it was his professional opinion that Mr. Seibold demonstrated evidence of a mental illness and was in need of a more extensive evaluation before a definitive diagnosis of his mental illness could be established.
Dr. Howard S. Weldon was called by the defendant. He testified he attended prisoners in Lee County jail; that he had observed Edward Albert Seibold in said jail on two occasions; that he did not give Seibold any psychiatric examination; that it would be impossible for him to say whether he was of sound or unsound mind *324 but that he would recommend that he be placed in an institution to determine whether or not he was suffering from unsound mind.
This was all of the evidence before the trial judge, for the State presented no evidence. No one, not even a layman, testified that the defendant was competent to stand trial, or even expressed an opinion that the defendant was sane. While some of the experts felt that the defendant should be examined further before making their final determination, two psychiatrists stated that the defendant was insane and incapable of competently assisting in the case pending against him. Such testimony, in my opinion, generated "sufficient doubt" as to his mental competency to stand trial, and, therefore, he was entitled to have a determination by a jury of his mental competency under the provisions of said Section 426. A similar factual situation existed in a case cited in Pate v. Robinson, supra, i. e., Thomas v. Cunningham, 313 F.2d 934, C.C.A. 4, where undisputed evidence established a "prima facie" showing that the defendant was incompetent to stand trial. That case held the denial by the trial court of the defendant's motion for a determination of the defendant's competency to stand trial was so arbitrary as to constitute a denial of due process.
The trial judge in the case at bar refused and denied the "Motion for Inquiry into Mental Condition of Defendant Before Trial" and struck the plea in abatement, both of which sought a Section 426 jury hearing and determination. Because of such rulings, I would reverse.
It has long been the position of this Court that the decision whether to order a Section 426 hearing is discretionary with the trial judge. Granberry v. State, 184 Ala. 5, 63 So. 975; Whitfield v. State, 236 Ala. 312, 182 So. 42; Burns v. State, 246 Ala. 135, 19 So. 2d 450; Ex parte Bush, 247 Ala. 351, 24 So. 2d 353. In at least two cases, Rohn v. State, 186 Ala. 5, 65 So. 42, and Whitfield v. State, supra, the exercise of discretion in the application of the provisions of Section 426, supra, was held as not being revisable on appeal, citing Granberry v. State, supra, in support thereof. While Granberry does state that the trial court has a discretion under Section 7178 of the Code of 1907 (predecessor of Section 426) as to granting a motion to execute an inquisition as to a defendant's mental status at the time of trial, no such restriction therein is found as is stated in Rohn v. State, supra, and Whitfield v. State, supra. In Burns v. State, supra, this Court held that the denial of a hearing under Section 426 was not reviewable on appeal in the absence of abuse of discretion and cited in support of this proposition Granberry, Rohn and Whitfield. Whether the trial court's denial of such a hearing is reviewable on an abuse of discretion or not revisable at all is in a state of confusion. However, no Alabama case has been found where a trial judge was reversed for denying such a hearing. But, regardless, the impact of Pate v. Robinson, supra, transcends all prior decisions of this Court on this point and, therefore, in my opinion, indirectly overrules all such decisions which may be in conflict with it. If sufficient doubt of the defendant's present mental competency is raised, then it is mandatory that there be a judicial hearing to determine his mental competency to stand trial. Such a hearing was not held in the instant case and, therefore, in my opinion, Pate v. Robinson, supra, requires that it be reversed.
I would also reverse for another reason. In the main trial, after Dr. Herlihy testified that the defendant had admitted to him the facts of the crime, the attorney for defendant asked Dr. Herlihy two questions, to which the trial court sustained the State's objectionsreciting that in each instance the question was for the jury.
These two questions were:
In the majority opinion of this Court, it was held that the trial judge correctly sustained the objections as such questions called for answers which were invasive of the province of the jury. It was apparent that the defense counsel sought to frame these questions within the context of Parsons v. State, 81 Ala. 577, 2 So. 854. The majority of this Court rely on Boyle v. State, 229 Ala. 212, 154 So. 575. However, I do not feel that Boyle v. State, supra, is authority for withholding expert opinion testimony from the jury's consideration. The majority opinion quotes from that case, and the portion thereof that it emphasizes is as follows: "* * * In such case, it is for the jury to say whether such disease was the sole cause of the deed." However, this actually is in reference to the propriety of the trial judge's refusal to give the affirmative charge in favor of the defendant and does not pertain to an evidentiary ruling. I do not consider that said quoted portion or anything in the Boyle case as apropos to the said issue now under review. Indeed, a careful reading of Boyle discloses that psychiatrists who testified at that trial stated that in their opinion the defendant was insane, and that either he did not know the difference between right or wrong, or if he knew the difference, he was unable to prevent doing the act.
An expert's opinion upon an ultimate fact is not inadmissible on that account. McElroy, The Law of Evidence in Alabama (2nd Edition) Vol. 1, Section 127.01 (4), Page 306. Opinion testimony of experts on subjects appropriate for expert testimony is admissible, even if it is in practical affirmation of a material issue in the case. Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33. It is permissible for an expert to testify as an expert on matters which are within the issues to be determined by the jury, provided such matters are not of common knowledge. Colvin v. State, 247 Ala. 55, 22 So. 2d 548; Elkins v. State, 250 Ala. 672, 35 So. 2d 693. In Birmingham Electric Co. v. Farmer, 251 Ala. 148, 151, 36 So. 2d 343, this principle is stated as follows:
See also Brandon v. Progress Distilling Co., 167 Ala. 365, 52 So. 640.
These holdings of this Court are in keeping with the modern trend. See 2 Underhill's Criminal Evidence, Section 307, 1970 Pocket Part, page 9, where the following appears:
In Hall v. State, 248 Ala. 33, 26 So. 2d 566, this Court held that it was error not to allow an expert's testimony concerning whether the mind of the accused was so defective as to destroy his power to choose between right and wrong and whether his free agency was destroyed to such an extent that he was incapable of avoiding the *326 commission of the act charged at the time thereof.[3] This, of course, is an element of Parsons v. State, supra. Hall v. State, supra, lists the elements of the defense of not guilty by reason of insanity in the following language:
In the case under review the questions were directed toward an element of the defense of not guilty by reason of insanity, that being, "the crime was so connected with such mental disease, in relation of cause and effect, as to have been the product of it solely." Since this Court reversed in Hall v. State, supra, for the refusal to allow an expert to testify about one element of the defense of insanity, I can see no reason to apply a different rule to another such element. Thus, in my opinion, the trial judge committed reversible error in sustaining the State's objections to these questions.
Because of the reasons herein discussed, I must respectfully dissent.
LAWSON, J., concurs in that portion of the dissenting opinion dealing with the denial of the defendant's right to have a hearing to determine his mental competency to stand trial.
[1] It should be noted that Lee v. State of Alabama, supra, held that a hearing under Section 428 of Title 15 of the Code of Alabama 1940 is not directed to the ability of the accused to stand trial at all but is directed to the question of whether an accused should be sent to the State hospital for treatment. In support of its holding, the United States Court of Appeals, Fifth Circuit, in Lec states that the Alabama Supreme Court has described the purpose of that said Section 428 in Ex parte Garrett, 262 Ala. 25, 76 So. 2d 681, by the following language:
"As we view the statute and as seems to have been the import of the Trice decision, it is the product of society's humanitarian attitude toward a person in confinement and if in such condition and the person is mentally sick, its beneficent purpose is to provide machinery whereby he may be transferred to a hospital rather than remain in jail."
[2] Section 426 of Title 15, Code of Alabama, as pertinent, is as follows:
"§ 426 (4575) (7178) (4941) Inquisition in certain cases of felony; proceedings.If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct. If the jury shall find the accused sane at the time of their verdict, they shall make no other inquiry, and the trial in chief shall proceed. If they find that he is insane at that time, the court shall make an order committing him to the Alabama state hospitals, where he must remain until he is restored to his right mind. When the superintendent of the hospitals shall be of opinion that such person is so restored he shall forthwith, in writing, inform the judge and sheriff of such court of the fact, whereupon such person must be remanded to prison on an order of such judge, and the criminal proceedings resumed. In no event shall such person be set at large so long as such prosecution is pending, or so long as he continues to be insane."
[3] Pertaining to this ruling, the opinion in Hall v. State, supra, makes reference to the inquiry on page 95 of the transcript.
An inspection of the original transcript confirms the summary statement contained in that opinion. | December 17, 1970 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.